Opinion
D077020
02-23-2022
In re RAMIRO GONZALEZ on Habeas Corpus.
Boyce & Schaefer and Robert E. Boyce, for Petitioner. Xavier Becerra and Rob Bonta, Attorneys General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S. Denault, and Vincent P. LaPietra, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING in habeas corpus No. BAF1300837. David A. Gunn and Sean Lafferty, Judges. Relief granted.
Boyce & Schaefer and Robert E. Boyce, for Petitioner.
Xavier Becerra and Rob Bonta, Attorneys General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S. Denault, and Vincent P. LaPietra, Deputy Attorneys General, for Respondent.
GUERRERO, J.
In 2015, a jury convicted Ramiro Gonzalez of three counts of aggravated sexual assault on a child (Pen. Code, § 269, subds. (a)(1) [rape by force, fear, or threats], (a)(3) [sodomy by force, fear, or threats], and (a)(4) [oral copulation by force, fear, or threats]) and two counts of lewd acts on a child by force or fear (id., § 288, subd. (b)(1)). The trial court sentenced Gonzalez to a total term of 61 years to life in prison. This court affirmed. (People v. Gonzalez (Sept. 19, 2018, D073857) [nonpub. opn.] (Gonzalez).)
In a petition for writ of habeas corpus, Gonzalez now contends his convictions should be vacated because his trial attorney, Gregory Comings, rendered ineffective assistance in connection with a pretrial polygraph examination and law enforcement interview. Gonzalez contends that Comings's performance was constitutionally deficient because (1) Comings agreed to the polygraph examination and interview without obtaining a reciprocal benefit from the prosecution; (2) Comings did not pursue his own confidential polygraph examination prior to the agreement; and (3) Comings abandoned his representation of Gonzalez by not attending the polygraph examination or interview. Gonzalez further contends he was prejudiced by Comings's deficient performance because he made incriminating statements during and after the interview, which the prosecution introduced into evidence at trial.
We conclude that Comings's failure to attend the polygraph examination and subsequent law enforcement interview was objectively unreasonable under prevailing professional norms. This failure left Gonzalez unrepresented during the examination and interview. If Comings had been present, and advised Gonzalez competently, it is likely that Gonzalez would not have made the incriminating statements. Further, without the incriminating statements-which the prosecutor described in part as "very important" in her closing argument to the jury-it is reasonably probable that Gonzalez would have obtained a better result at trial. We therefore vacate the judgment based on constitutionally ineffective assistance of counsel. As required by statute, we refer the matter to the State Bar of California for investigation. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); In re Sixto (1989) 48 Cal.3d 1247, 1265, fn. 3 (Sixto).) The prosecution may elect to retry Gonzalez within the time period allowed by law.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence at Trial
The historical facts in this section are taken from the testimony and other evidence admitted at Gonzalez's trial. The victim, "Jane Doe," is Gonzalez's grandniece. Gonzalez is married to Jane's grandmother's sister. Jane was born in Mexico but came to California to live when she was approximately five years old. Jane's older brother had come to California the year before. Their grandmother was their primary caregiver. Jane, her brother, and their grandmother lived with Gonzalez, his wife, and other extended family members in three homes in Southern California. Although the alleged abuse took place at all three locations, the charged offenses were based only on acts that occurred at the family's most recent home in Beaumont, California.
In November 2013, when Jane was 12 years old, she told a teacher a boy had "touched her" and she became extremely emotional. She eventually disclosed that her uncle had molested her and she wanted to kill herself. Jane said she would hide under her bed at night to avoid her uncle. She said," '[W]hen I hide under there, he doesn't mess with me.'" Jane was afraid that her uncle would touch her cousins inappropriately as well.
A school secretary described Jane as "visibly shaken" and "almost violently crying and shaking." The crying continued for hours. Similarly, a school principal said Jane was shivering and crying, rocking back and forth, and shaking her head. The encounter stood out in the principal's mind because of "the chilling nature in her voice and how sad and how afraid she was at the time." The school contacted child protective services, who arrived along with police and took custody of Jane.
Jane was initially interviewed by two police officers. She told them she had been sexually abused by her uncle, whom she identified as Gonzalez. Jane described pinching, spanking, and touching on her private parts. She said the last time it happened was a few days before, when Gonzalez drove Jane home from school. Gonzalez reached over and touched Jane on her vagina, inside her pants, while he was driving. She reiterated that Gonzalez would come to her room at night and touch her. She would hide under her bed to avoid him. Jane also said Gonzalez had "rape[d]" her five or six weeks prior. She described Gonzalez pulling down her pants, then his pants, and putting a "glove" on his penis. Jane said that Gonzalez "pulled something back" on his penis, which the police officer believed meant that Gonzalez was uncircumcised. Gonzalez forced Jane onto the couch, put his penis in her anus, and sodomized her. Jane said her brother was upstairs and her great-aunt (Gonzalez's wife) was away at an Herbalife meeting.
Because the police officers were unable to get more detailed information from Jane, she was interviewed again by a more senior officer. Jane told the officer that Gonzalez began touching her inappropriately when she was around six or seven years old. She said the most recent abuse had occurred a few days prior. She was sitting on the couch with Gonzalez. He pulled down his pants, grabbed Jane's hand, and tried to make her touch his penis. Gonzalez's wife was doing laundry. Jane also described being "raped," as discussed above. She said no one was at home at the time. The officer obtained information about a few other incidents of abuse, but he did not attempt to catalog every one. The officer knew that a specialist would interview Jane later.
A few weeks later, Jane was interviewed by a trained child forensic interviewer. The interviewer uses a 10-step interview process designed to prompt children to discuss the facts surrounding their experiences. The process includes asking open-ended questions and verifying that the child is aware of the obligation to tell the truth.
A video recording of the interview was played for the jury. Jane described a pattern of sexual abuse by Gonzalez that began with inappropriate touching and continued on to sodomy and rape. She said Gonzalez raped her in all three homes after she arrived in California. Jane told the interviewer that Gonzalez put a "rubber thing" on his penis before raping her, and she saw something white or "yellowish" come out of his penis afterward. Jane said she often tried to resist the abuse by kicking and scratching Gonzalez. Gonzalez responded by hitting Jane or pushing her down.
The interviewer asked what sort of abuse happened at the Beaumont house. Jane began by explaining that Gonzalez kept trying to get into her room, but she hid under her bed. Jane also described what she said was rape. She said Gonzalez raped her "once or twice" in the Beaumont house. Both times were on the couch downstairs. She also described how Gonzalez would touch her vagina with his hands and mouth.
Jane testified at Gonzalez's trial. She said that Gonzalez began to touch her inappropriately when she was six or seven years old. He started by touching her leg and then between her legs over her clothes. She did not tell anyone because she was confused and unsure what was happening. At some point, Gonzalez began to touch Jane under her clothes. Later, when Jane's brother and great-aunt went to an Herbalife meeting, Gonzalez laid Jane on the couch, pulled down her pants, and put his mouth on her vagina. Jane told Gonzalez to stop and scratched him. Gonzalez continued until Jane's brother came home. Jane thought her brother saw them: "When he came in, he made this face, and then my uncle went into the restroom." Jane's clothes were off, and Gonzalez's pants were off. Jane never discussed the incident with her brother. Prior to her trial testimony, she had not mentioned that her brother had seen anything.
Jane normally slept in the same room as her grandmother. But when her grandmother traveled to Mexico, Gonzalez would try to come to her room at night. Jane would hear him knocking on the window. Her brother was there, but he was asleep.
Jane described how, at the family's second house, Gonzalez would put his penis in her vagina on weekends when her great-aunt and brother were away. Gonzalez always put on a condom, though at the time Jane did not know what a condom was. Jane described Gonzalez's penis as big and hairy. She did not remember what color the hair was. After Gonzalez was done, he would say," 'Okay, bear, pull up your pants.'" At times, Jane scratched Gonzalez on his hands or kicked him. Gonzalez got mad and hit her. Gonzalez would "accuse," "threaten," and "hit" Jane if she did not let him touch her.
In the Beaumont house, Jane lived with her brother, her grandmother, Gonzalez, his wife, and their son. Jane said Gonzalez did not put his hands on her vagina while they lived in that house. When Jane was asked what Gonzalez did do, she testified that he once put his penis in her anus and sodomized her. Jane and Gonzalez were watching television, Jane's brother was upstairs, and everyone else was gone. (Later, on cross-examination, Jane said she did not remember if anyone was home.) Gonzalez pulled his pants down and told Jane to do the same. He put his penis into her anus. Jane said it hurt for days afterward. This happened about four or five weeks before Jane told school officials about the abuse.
The prosecutor asked, "Do you remember talking about an incident when your uncle picked you up from school the Friday before you said anything at the school, and he drove you home from school, and he was touching you in the truck?" Jane said yes, and she described how Gonzalez touched her on her vagina over her clothes. Jane scratched Gonzalez in response, "[l]ike always."
In response to the prosecutor's questions, Jane agreed that Gonzalez touched her bottom when she was washing dishes and used to put his mouth on her breasts. Jane initially denied that Gonzalez put his penis inside her vagina at the Beaumont house. But later, following a leading question, the prosecutor asked, "Was there ever a time he put his penis in your vagina at the Beaumont house?" Jane responded yes and said, "It was like only once, and that's when he put the condom on again." Gonzalez put his penis in Jane's vagina, and he "kept on moving back and forth like the same as the [second] house." Gonzalez told her he was going to hit her if she did not comply.
The prosecutor's leading question was, "Do you remember talking about a time where he put his penis inside your vagina at the Beaumont house on the couch when your aunt went to one of her-no, she was asleep upstairs?" Gonzalez objected, and the trial court sustained the objection. Later, Jane agreed with the prosecutor's suggestion that her use of the term "one time" might mean "[n]ot that often" rather than literally once.
Jane also initially denied that Gonzalez put his mouth on her vagina in Beaumont or that he tried to make her touch his penis. But later she said he had put his mouth on her vagina. Similarly, after the prosecutor asked about Jane's earlier police interview, she said that Gonzalez actually had her touch his penis. On cross-examination, Jane said she did not touch it.
The prosecutor's question was, "Do you recall telling him that three days before-so you were at school on the 12th. You told your counselor and the secretary and the principal, and you told the two police officers. Do you remember telling [the more senior officer] that same day that just three days beforehand that your uncle had forced you to touch his penis? He said, 'Give me your hand,' and you moved it away?" Jane responded, "Yes." Jane later agreed that Gonzalez had her touch his penis and afterward she "pulled [her] hand away." Jane testified that neither she nor Gonzalez said anything. Jane felt sad because "at first [she] didn't know why he was doing that."
The prosecutor asked whether anything happened inside Jane's bedroom in the Beaumont house. She said that once Gonzalez came to her room but she told him to get out. Gonzalez left, but Jane was scared he would come back, so she went under her bed. She denied that Gonzalez had touched her in her room in that house or the other houses. She only hid under her bed once.
The prosecutor asked about Jane's interview with the child forensic interviewer. Jane agreed she was the most comfortable with the interviewer. Jane did her best to tell the truth. But Jane did not think she had forgotten anything in her trial testimony. She appeared to say that her memory was better at trial: "Because that day I was-none [of] the people were here, and he wasn't in front of me. But now that he's in front of me, I can remember everything." Later, on redirect, Jane agreed with the prosecutor's suggestion that what she said earlier to the interviewer was the truth. But when the prosecutor asked, "Do you remember it being more [then] or maybe there were some parts today that you remember more?," Jane said, "Yes," which is ambiguous in this context.
On cross-examination, except as noted above, Jane largely confirmed her testimony about Gonzalez's conduct. On redirect, Jane denied making up the allegations. She said she regretted ever saying something happened because her family had abandoned her as a result.
Jane was examined by a medical doctor who specialized in forensic pediatrics and who was the director of the child abuse program for a prominent Southern California teaching hospital. The exam occurred approximately three weeks after Jane told school officials about the abuse. The examination was normal, except for two findings in Jane's anal area. The doctor identified a "kind of cherry red little nodule on a little bit of a stalk," which was unusual. She also saw what may have been a scar. The doctor believed the red nodule had developed because of trauma or irritation. The doctor performed a follow-up examination four months later. The nodule was gone, and the potential scar was not readily identifiable. The doctor believed the nodule was consistent with a history of sexual abuse. She did not believe it would have been caused by a bowel movement. There would have to be chronic irritation, not a one-time event. The doctor concluded it was "most likely" or "highly suspect[ed]" that Jane had been sexually abused.
Gonzalez's first witness for the defense was a registered nurse and board-certified sexual assault nurse examiner. A sexual assault nurse examiner typically performs forensic examinations of patients, documents and photographs any findings, and potentially collects DNA samples. The nurse criticized the doctor's conclusion regarding sexual abuse because the doctor's examination took place so long after the alleged abuse. The nurse did not believe there were any physical findings that would support an allegation of sexual abuse. On cross-examination, the prosecutor questioned her credentials and her ability to opine on the results of Jane's examination.
Gonzalez's next witness was his personal physician. The physician treated Gonzalez for erectile dysfunction and prescribed medicine to address it. The physician noted that Gonzalez had diabetes and hypertension, which may contribute to erectile dysfunction. But erectile dysfunction may have psychogenic causes as well, and the physician did not do any investigation to determine the cause of Gonzalez's reported erectile dysfunction.
Gonzalez's wife testified in his defense. She said Gonzalez worked as a truck driver and was rarely home. She said Gonzalez was never alone with Jane. There were always other family members around. When Gonzalez's wife went to Herbalife meetings, she took Jane (and sometimes Jane's brother) with her. She only asked Gonzalez to pick Jane up from school once. She was there when they arrived home. Jane was acting normal and happy. Gonzalez's wife had never seen Jane under her bed; it was very close to the floor and she would not fit. She agreed that Gonzalez had erectile dysfunction. His medication did not help. She said Gonzalez had gray pubic hair and was uncircumcised.
In general, Gonzalez's wife did not notice anything strange about Gonzalez's relationship with Jane. She did not suspect anything was going on between them. She denied ever seeing any scratch marks or cuts on Gonzalez.
On cross-examination, the prosecutor asked whether Gonzalez had asked her to say certain things in court. Gonzalez's wife denied it, but she testified that Gonzalez did tell her to remember an incident where Jane hurt her anus and she went to the hospital. Gonzalez's wife said it did not happen. Gonzalez was confused.
Jane's grandmother testified as well. She also said that Gonzalez was never alone with Jane. Jane was always with her or Gonzalez's wife. She believed Gonzalez and Jane had a normal relationship. She did not see Gonzalez behave inappropriately. When Jane's grandmother was asked what size Jane's bed was, she volunteered, "Yes, I do remember the bed because it was a very low bed." Jane could not fit underneath it.
Gonzalez's final witness was his son. He also said that Gonzalez was rarely at home and never alone with Jane. He never saw Gonzalez touch Jane inappropriately. Jane always acted normally around him. He described Jane's bed as "a shorty bed," about 12 or 16 inches off the ground. Jane could not get underneath it. On cross-examination, the prosecutor asked Gonzalez's son whether he remembered receiving a phone call from Gonzalez where he asked the son to tell Gonzalez's wife how Jane injured herself. Gonzalez's son said he did not remember the conversation.
In its rebuttal, the prosecution called an investigator for the district attorney's office. He testified that he completed three assignments related to Gonzalez.
First, the investigator executed a search warrant and took pictures of Gonzalez's naked body, including his penis. The investigator said Gonzalez was uncircumcised and had gray pubic hair.
Second, the investigator interviewed Gonzalez after reading him his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He said he used a "ruse" and told Gonzalez that Jane identified a photo of his penis and said it was uncircumcised. The investigator testified that Gonzalez "became surprised, and he said, ay chi[n]gado, which means, like, oh, fuck, for lack of a better term." The investigator also "confronted] [Gonzalez] with the fact that Jane Doe had suffered injuries to her anus[.]" The investigator described Gonzalez's response: "He stated that she had fallen down . . . when she was about 11 years old, she fell down on the edge, like the edge kind of- kind of explained like the sidewalk, and the edge, the curbing of the sidewalk, that is how she injured her anus." Gonzalez said his wife took Jane to the hospital and could get the records.
Third, the investigator reviewed certain phone calls that Gonzalez made to his wife and son. Portions of both calls were played for the jury. In the call to his son, Gonzalez said that the investigator told him that Jane "had a scar in her thing. So that you can tell your mom when she took her to the hospital that she hit herself on the sidewalk." The son agreed and told Gonzalez not to talk anymore. In the call to his wife, Gonzalez said the investigator wanted to "trick me" or "trap me" into "confessing that at least I did touch her, that they were going to give me less time and I tell him, 'What do you want, for me to lie to you? Huh? Do you want me to lie to you?'" He went on, "And then that thing with [Jane], when she fell, that she had a scar there and that it was from-from a man." Gonzalez said, "I tell him, 'She fell on the sidewalk, or I don't know what happened.' Do you remember?" Gonzalez's wife responded, "No, she hit herself on the television. Where, on the head?" Gonzalez responded, "No, on her little thing, you took her to the hospital." Gonzalez wife said, "Oh . . .," and Gonzalez asked, "You do remember?' Gonzalez's wife said, "And then what happened? And then what happened?" The portion of the call introduced into evidence ended there.
On cross-examination, the investigator confirmed that, after the ruse, Gonzalez called Jane a liar. He adamantly denied sexually abusing Jane.
Closing Arguments
In her closing argument, the prosecutor focused on the forensic interview as the most reliable version of Jane's story. She also emphasized Jane's apparent description of Gonzalez's penis. The prosecutor said, "[Jane] knows that he has some gray pubic hair and that he is not circumcised and there is only one logical explanation, he is guilty." Jane's testimony was credible because she had no motivation to lie, and her allegations were consistent with the medical findings reported by the forensic pediatrician who examined her. The prosecutor argued that Gonzalez's family members who testified were "desperate" to save him and not credible.
At the end of her argument, the prosecutor highlighted Gonzalez's own statements. She said, "In his own statements, right, in his own conversations you know, you know that he is guilty. Because when he is confronted by [the investigator], when he called him out and says, you know what, how does she know you are . . . uncircumcised? His response, his immediate response is, 'Oh, fuck,' because you can't explain that away .... [¶] And when he says, how do you explain the injury? Okay, and I want to be clear the injury on her thing, right, her injury on her anus, how do [you] explain that? His response is a lie. His response is she fell on a sidewalk. Really, on a sidewalk? She fell on a sidewalk and she hurt her-she hurt herself. My wife knows everything about it. She can get all the hospital records for you. Well, we know that is an absolute blatant lie."
The prosecutor went on to describe Gonzalez's calls to his wife and son: "And the next thing he does, he immediately that same day of the interview, he ... is desperate to call her and tell her, right? And when she is not there and he tries to tell his son, his son says, 'Stop, stop, stop. Don't talk about it.' [¶] And now then when he calls the wife, 'You mean when she hit her head on the TV?' He says, 'No. No. No. No. Remember?' [¶] She says, 'Oh, remember,' and then she changes the subject. Well, then what happened? Not, yes, I remember. Oh yeah, you're right, or you're crazy, what are you talking about? You're completely off. Oh, well, what happened then? He was trying to coach her, right, trying to come up with an explanation."
In his closing argument, Gonzalez's attorney (Comings) maintained that Gonzalez was innocent. He noted that Jane's initial statements focused on Gonzalez coming into her bedroom at night and her efforts to avoid him by hiding under the bed. Comings said that was not credible because the bed was too low. He highlighted inconsistencies in Jane's testimony, such as whether Gonzalez touched her over or under her clothes in his truck and whether Gonzalez put his penis in her vagina. Comings referenced Gonzalez's statements only in passing. He said, "Now you also heard from [the investigator]. This was an interesting thing he does a ruse. And he talked about this ruse, this trick that he did. And he says, look, he said, 'Oh, fuck,' something to that effect. [¶] However what he did say, [Gonzalez] said, he adamantly denied, his words, adamantly denied ever sexually molesting her. He told that to the police, he said that."
In her rebuttal argument, the prosecutor again highlighted Jane's lack of motivation to lie and the medical evidence. She said Gonzalez's witnesses were not credible, especially in their assertion that Gonzalez had never been alone with Jane at any time over the years she lived with him. The prosecutor asserted that "one thing is certain, she described his penis. They can't explain that away, they haven't. There is no explanation for it, except for one, that she saw it and she saw it and was familiar with it because he molested her. That evidence is absolutely profound and consistent with all of the other pieces of the puzzle of this case."
Near the end of her argument, the prosecutor returned to Gonzalez's statements. She said, "The other thing is this, how do they explain the finding in her anus? The defendant's statement to [the investigator] is very important, because he is . . . caught in a moment of, I'm going to be frank, an 'Oh, shit,' moment. He has been caught and confronted with, why didn't- why is she able to describe your penis, man? And his exact words were, you already you know what."
Although somewhat unclear, it appears the prosecutor's last statement was directed to the jury, i.e., "you," meaning the jury, "already know what" Gonzalez said.
The prosecutor went on, "And then when he is told and how do you explain this injury in her anus? How do you explain this injury that she sustained? He comes up with this ridiculous story of, oh, one time she fell on the sidewalk. On the sidewalk and injured the inside of her anus, inside of her booty on her anus, really? That is just consciousness of guilt. Those are words of a guilty man. [¶] And then the fact that he is desperate to call his wife the same day. Those are actions of a guilty man."
Jury Deliberations, Verdict, and Post-Trial Matters
During deliberations, the jury requested the transcripts of Gonzalez's calls to his wife and son, as well as Jane's forensic interview. They also requested readbacks of Jane's testimony about the Beaumont house and a police officer's testimony about Jane's second interview with police. After six to eight hours of deliberations, the jury found Gonzalez guilty on all counts, as described at the outset of this opinion.
Gonzalez, represented by new counsel, filed a motion for new trial based on insufficiency of the evidence, prosecutorial misconduct, and related ineffectiveness of counsel. The trial court denied the motion. On the evidence, the court explained, "Frankly, I don't think the doctor's testimony was that persuasive. It was, basically, it was maybe slightly corroborative of what the victim had to say. [¶] But, you know, what it really came down to, in my opinion, based on having heard the entire trial, was that the jury found the victim in this case to be credible, and they did not find the defendant to be credible, and that's what they based their decision ultimately on and . . . why the verdicts were as they were in this case."
At sentencing, the court selected the middle term for the lewd conduct counts based on Gonzalez's lack of criminal record. Gonzalez's total sentence was 61 years to life in prison.
On direct appeal, Gonzalez contended the trial court erred by admitting his statements to the investigator because he had invoked his right to counsel and had not initiated the interrogation. (See Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) This court found that Gonzalez had forfeited any claim of error by failing to object at trial, and any argument based on ineffective assistance of counsel should be raised in a petition for writ of habeas corpus. (Gonzalez, supra, D073857.) We affirmed the judgment. (Ibid.)
Initial Writ Proceedings
Gonzalez filed a petition for writ of habeas corpus in the trial court, which contended his counsel was ineffective for failing to object to his statements to the investigator. Gonzalez submitted a declaration from Comings, his trial attorney, who said he thought he had sufficiently objected to the statements. Comings said he did not have a reason for failing to more specifically state his objections. The trial court denied the petition because Gonzalez had not shown prejudice, among other grounds.
Prior to trial, the prosecutor moved in limine to admit Gonzalez's statements. The trial court stated that Gonzalez had been given a Miranda warning and the statements were admissible as party admissions. The court remarked, "I don't believe Mr. Comings has any great objections to those." Comings replied, "No." The court said, "I'm sure he would prefer they not come in." Comings answered, "True." The court concluded that "longstanding California law would allow their admission."
Gonzalez then filed his petition in this court, and we issued an order to show cause. In his return, the Attorney General argued that Gonzalez, through his attorney, had agreed to the interview with the investigator. The return stated, "Defense counsel [Comings] approached the prosecutor in this case with an offer to have Gonzalez submit to a polygraph examination in order to convince the district attorney to dismiss the case. The prosecutor conditioned the polygraph on a follow-up interview in the event Gonzalez was not truthful during the polygraph. Defense counsel agreed to and was aware of the interview." It went on, "The statement at issue ... is the follow-up interview to which defense counsel agreed."
In a supporting declaration, the prosecutor confirmed this sequence of events. She said, "I told Mr. Greg Comings that I could not make any promises to him, nor did I think my office would dismiss the charges but if his client did successfully pass a polygraph examination, I would be willing to reevaluate the merits of the case." She continued, "I told Mr. Greg Comings that I would only agree to such an examination if he and his client agreed to a post-polygraph interview with a District Attorney Investigator subsequent to his client NOT passing the polygraph examination." The prosecutor said that Comings and Gonzalez agreed to these terms. The polygraph examination took place, as did the post-polygraph interview.
In his traverse, Gonzalez acknowledged that the polygraph examination and post-polygraph interview occurred, but he argued they showed additional ineffectiveness of counsel. Importantly, Comings was not present for the post-polygraph interview. Gonzalez submitted a declaration from an experienced criminal defense attorney who stated he was familiar with the standard of care for lawyers representing defendants charged with violent crimes against children. He stated, "I have discussed tactical issues related to taking polygraphy examinations with clients, and on occasion have had clients take polygraph examinations while I represented them. The standard of care in these cases requires counsel to consult with and have the client take a private polygraph examination that was protected by the attorney client privilege, before advising the client to agree to take a polygraph conducted by law enforcement." Moreover, in his opinion, Gonzalez had not obtained any reciprocal benefit in exchange for agreeing to the polygraph and post-polygraph interview. He concluded: (1) "Agreeing to allowing law enforcement to conduct a polygraph examination of Mr. Gonzalez without any reciprocal benefit to him was below the standard of care for an attorney representing Mr. Gonzalez in this case." (2) "Agreeing to a post-polygraph interview with a District Attorney Investigator and failing to be present during such interview, under any circumstance, also fell below the standard of care for an attorney representing Mr. Gonzalez in this case." (3) "I further opine that the failure of counsel to be present during any law enforcement interview of a represented client fell below the standard of care and constitutes deficient performance under Strickland v. Washington (1984) 466 U.S. 668." In a declaration, Comings stated he had no recollection of any discussion or agreement to have Gonzalez interviewed by an investigator.
Evidentiary Hearing
After receiving the traverse, this court ordered an evidentiary hearing to be held in the trial court before a special master. The special master (Judge Jacqueline C. Jackson) heard testimony from the prosecutor, the district attorney investigator, Comings, and Gonzalez. She received into evidence various documentary exhibits, including emails between the prosecutor and Comings, the full transcripts of the calls between Gonzalez and his wife and son, and a polygraph consent form. The following factual summary is based on the evidence received at the hearing, as well as the transcripts of the polygraph examination and the post-polygraph interview that have been submitted to this court.
The prosecutor testified that Gonzalez was facing an indeterminate life sentence based on his charges. Before trial, Comings approached her and said Gonzalez would be willing to take a polygraph examination if her office would consider a determinate sentence. She told Comings that the polygraph would have to be conducted by an examiner she selected, in this case an individual employed by the San Bernardino County Sheriffs Department. She also told him "that if his client failed to pass the polygraph, that his client would be subjected to a post-poly interview." Conditioning the agreement on a post-polygraph interview was common practice; it was the benefit to the prosecution from the arrangement. The benefit to the defendant, if he did pass, was that the prosecutor would reassess the case and potentially dismiss or resolve the charges for a determinate sentence. The prosecutor was not aware of any case that had been dismissed based on a successful polygraph, but she was aware of cases that were resolved.
The prosecutor said that Comings agreed to these conditions. The agreement is normally memorialized in writing, but the prosecutor could not find a written agreement for Gonzalez's case. She believed it had been lost, but it was also possible it was a verbal agreement. The prosecutor did find an email chain between her and Comings discussing logistics for the polygraph examination. The email chain was admitted into evidence.
On the date of the polygraph examination, two district attorney investigators transported Gonzalez from jail to the San Bernardino County Sheriffs Department headquarters. After they arrived, the investigators took Gonzalez to a central courtyard to meet with Comings. Comings asked for a moment alone with Gonzalez. According to the investigator who eventually interviewed Gonzalez, they spoke for approximately eight to ten minutes. Afterward, Comings signaled for the investigators to return and said," 'Okay. He is ready to go.'" The other investigator briefly spoke to Comings, and Comings left. Comings was not present for the rest of the day.
The investigator took Gonzalez to the examination room. During the examination, Gonzalez was alone in the room with the polygraph examiner. The prosecutor, the two investigators, and a technician monitored the examination from an observation room. The prosecutor expected Comings to be there. She did not speak to Comings directly, but she heard that he had a scheduling conflict.
When Gonzalez was hooked up to the polygraph machine, he did not act surprised. The polygraph examination was conducted in Spanish. After the examination, according to the transcript, the polygraph examiner said "we have to change the questions" because "this is not going well." The examiner went on to accuse Gonzalez of lying and asked him to explain himself. The examiner said he was "sure" that something happened between Gonzalez and Jane. The examiner said, "When you take the exam, everything came out pretty bad; very bad. I am now sure, sure that your penis touched her butt." Gonzalez denied it. The examiner continued to confront Gonzalez: "Look Ramiro, this is your life. Do you understand? She is a little girl, we can't tell her 'you are a liar.' She has a heart, she feels bad. I am sure it did happen because she is not a liar." The examiner suggested it might have been an accident, or something not "criminal," but Gonzalez maintained nothing happened.
The district attorney investigator entered the room. According to the transcript, the examiner told the investigator that Gonzalez was not truthful when he was asked if his penis touched Jane's butt. (At the evidentiary hearing, the investigator testified the results were "inconclusive." The prosecutor understood that Gonzalez had not passed.)
The investigator began his interview. The prosecutor continued to watch from a separate room. The post-polygraph interview was also conducted in Spanish.
According to the transcript, the investigator began by asking Gonzalez what happened. Gonzalez responded, "I don't know. That man wants me to confess that I grabbed her and I can't lie." The investigator said, "Well I want to talk with you. Do you want to talk with me?" Gonzalez responded, "Yes." The investigator said he wanted to talk with Gonzalez about the results of the exam. He read Gonzalez his Miranda rights and asked if he wanted to talk about the exam. Gonzalez agreed. Gonzalez did not express surprise that he was being interviewed and did not ask for his attorney.
The investigator asked Gonzalez about his family, his living situation, Jane's behavior, whether she had any boyfriends, his own sex life, and other topics. Gonzalez consistently denied abusing the victim.
During the interview, the investigator used two ruses, which were statements not based on the evidence. First, he told Gonzalez that his DNA had linked him to Jane. Gonzalez again denied that anything had happened. Second, the investigator told Gonzalez that Jane had identified his penis and said he was uncircumcised. Gonzalez said, "Oh fuck," and called Jane a liar.
The investigator also told Gonzalez, truthfully, that Jane had a scar in her anus. Gonzalez responded that Jane had suffered an accident: "[S]he hit her butt and they took her to the hospital[.]" He said that Jane fell on the sharp edge of the sidewalk, "with her legs open." Gonzalez said his wife knew about it.
After the polygraph examination and post-polygraph interview, the prosecutor had her investigator review Gonzalez's phone calls from jail. She saw that Gonzalez was very upset about Jane's alleged ability to identify his penis and the injury to her anus, so she believed "there may be a possibility that he would discuss these issues with his family." The investigator found two calls, to Gonzalez's wife and son, which took place the same day as the polygraph examination. The full transcripts of the calls were admitted into evidence.
The prosecutor provided Comings with a video recording of the polygraph examination and post-polygraph interview, as well as the investigator's report for the day. Discovery receipts show that Comings received these materials.
Comings testified that he did not have any independent recollection of Gonzalez's case, except something involving "a bed." He did not recall any discussions about a polygraph examination or the fact that one occurred. He had provided his client file to Gonzalez's new attorney following the jury verdict. (The new attorney submitted a declaration stating that he was unable to find the file.) Comings does not speak Spanish.
Comings agreed that he would want to be with a client who was being interrogated by law enforcement. His general advice to someone who was facing a police interview would be to "tell them not to talk to the cops unless there was some benefit they would get." If the person asked whether they should have a lawyer during the interview, Comings would say "[p]robably yes." Comings is aware that the police use ruses as an interrogation tool. If Comings were present for an interview and the police were using a ruse on his client, he would try to stop it. Comings would intervene and request time to talk to his client privately. He would do the same even if he merely suspected the police were using a ruse.
Gonzalez testified that he was 64 years old and came to the United States when he was around 20. He had a sixth-grade education. He speaks very little English. Before this case, he had not been charged with a crime or been a witness in a criminal case.
Gonzalez said Comings suggested taking a polygraph examination. He agreed because he thought he might get a better plea deal from the prosecution or, potentially, prove his innocence. He only spoke to Comings once about taking a polygraph. It was at the courthouse, and there was a Spanish language interpreter to translate.
On the day of the polygraph, Gonzalez spoke to Comings for a couple minutes. Comings told Gonzalez to" 'be calm'" and everything would be fine. Gonzalez had expected that Comings would be there the whole time, but he was not. It was Comings's decision to leave, and Gonzalez did not have any way to stop him.
Gonzalez said Comings did not tell him he would be interviewed afterward. Nor did he warn Gonzalez to be careful because the police could lie to him. He did not object to the post-polygraph interview "[b]ecause I am the inmate. I cannot move. I cannot get out of there." He said he felt like he had no choice but to answer the investigator's questions: "I was at their mercy. They sat me down, and I continued to just sit there. I was by myself. I didn't have anybody to guide me through it." He said, "I thought I was there to do whatever they would say." Gonzalez agreed it would have been helpful, "a lot," to have Comings there.
On cross-examination, Gonzalez acknowledged that he had been read his Miranda rights, but he said he did not remember the specifics. He claimed he would have invoked his right to counsel if he had been aware of it. He later agreed that the investigator told him he had the right to an attorney, but he testified, "I had an attorney already. How am I going to have the right again?" It did not make sense to him.
Special Master's Findings
Following the hearing, the special master made written factual findings and recommendations." '[W]e give great weight to those of the referee's findings that are supported by substantial evidence. [Citations.] This is especially true for findings involving credibility determinations.'" (In re Hardy (2007) 41 Cal.4th 977, 993 (Hardy).) "Those findings are not, however, conclusive, and 'we can depart from them upon independent examination of the record even when the evidence is conflicting.'" (In re Gay (2020) 8 Cal.5th 1059, 1072 (Gay).)" 'Though we defer to the referee on factual and credibility matters, in other areas we give no deference to the referee's findings. We independently review prior testimony [citation], as well as all mixed questions of fact and law.'" (Hardy, at p. 993.) We address Gonzalez's exceptions to the special master's findings in context below. The Attorney General did not file any exceptions to the findings.
The special master found the prosecutor, the district attorney investigator, and Comings to be credible. The special master had "concerns" regarding Gonzalez's veracity. She wrote, "His testimony shifted when it seemed convenient to his position."
The special master credited Comings's testimony that he had no recollection of his handling of Gonzalez's case, including any discussions regarding the polygraph examination. Based on other evidence, however, the special master found that Comings and the prosecutor agreed to have Gonzalez take a polygraph examination prior to trial. If Gonzalez passed the polygraph, the prosecutor would be willing to consider a dismissal or a determinate-term offer. If not, Gonzalez would be interviewed by a district attorney investigator. The special master found that Comings "placed no limitations on the type or number of questions asked of [Gonzalez], nor were there any restrictions against using any ruses in questioning. Clearly, the People would not have agreed to the polygraph examination had defense counsel placed restrictions on the type of questions that could be asked of [Gonzalez]." Comings discussed the proposal with Gonzalez and secured his agreement.
Gonzalez takes exception to the special master's finding that Gonzalez assented to the agreement. Although Gonzalez denied knowing about the agreement, the special master could reasonably find that Gonzalez was aware based on Gonzalez's testimony about his discussions with Comings and his conduct on the day of the examination. The special master wrote, "[A]lthough [Gonzalez] now claims Mr. Comings never informed him that he would be interviewed in the event that he did not successfully pass the polygraph examination, at the time that the post-polygraph interview began [Gonzalez] did not act surprised, ask any clarifying questions, or request to speak with his attorney."
The agreement between Comings and the prosecutor was not unusual. The special master wrote, "The agreement to conduct a polygraph examination and possible post-polygraph interview was mutually beneficial for both parties. In accordance with the agreement made, [Gonzalez] received the possibility of a dismissal of his case or a negotiated resolution to a determinant prison term. Whereas, the People received the possibility of an interview with [Gonzalez], who had invoked his right to counsel upon his arrest and, therefore, had not been subjected to post-arrest questioning."
Gonzalez's exception to the special master's finding that the agreement was "mutually beneficial for both parties" is overruled. The prosecutor's agreement to arrange a polygraph and reevaluate Gonzalez's case was a benefit to Gonzalez, given the prosecutor's prior unwillingness to consider any determinate-term offer. (See Sexton v. Cozner (9th Cir. 2012) 679 F.3d 1150, 1160 (Sexton) [counsel hoped to achieve dismissal or greater leniency in plea bargaining].) Gonzalez's claim that the prosecutor's promise must "rise to the level of consideration sufficient to support a contract" is unsupported and unpersuasive. The chance of a better resolution, even if not enforceable, can be a reasonable goal of defense strategy.
The special master found that Comings "first proposed the idea of the polygraph to [Gonzalez] up to two months before it was conducted. It appears that they discussed the polygraph examination twice during court hearings. [Gonzalez] agreed to participate in the polygraph examination." Gonzalez objects to the finding that Comings and Gonzalez discussed the polygraph examination "twice during court hearings." This exception is sustained. While Gonzalez testified to two discussions, the record shows that one discussion occurred during a court hearing and the second occurred on the day of the polygraph examination.
Gonzalez also takes exception to the special master's finding that Comings told Gonzalez the date of the polygraph examination prior to the day it occurred. This exception is overruled. Although somewhat unclear, Gonzalez testified that he knew "before the actual date" that he would be transported for the polygraph, and he agreed that Comings "did tell [him] the date before it happened that [he was] going to be picked up by law enforcement to be polygraphed." On this record, we defer to the special master's finding.
On the day of the polygraph examination, Comings met with Gonzalez for approximately eight to ten minutes. Comings told Gonzalez to be calm. Thereafter, "Mr. Comings left before the polygraph was conducted and was not present for either the polygraph examination or the post-polygraph interview. Mr. Comings recognizes that it is preferable for a defendant to have an attorney present during law enforcement questioning." Comings did not recall why he was not present. The prosecutor was told Comings had a conflicting appointment.
Before the post-polygraph interview, the district attorney investigator read Gonzalez his Miranda rights. The special master found that Gonzalez "waived each of his rights, including his right to have his counsel present during the questioning. [Gonzalez] was not unfamiliar with his Miranda rights; he had been Mirandized previously and had invoked his Miranda rights." The special master concluded that the post-polygraph interview "was not a violation of petitioner's rights under the Fifth or Sixth Amendment to the United States Constitution, because Mr. Comings agreed to the interview by the District Attorney's Office." Comings therefore had no basis on which to object to the introduction of Gonzalez's statements at trial. The special master did not address whether Comings's pretrial representation of Gonzalez was deficient.
Gonzalez has filed several exceptions to the special master's findings regarding the effectiveness of his Miranda waiver, the viability of any potential constitutional objection, and related issues. These exceptions present mixed questions of law and fact and are discussed with the merits below, where necessary.
DISCUSSION
I
Ineffective Assistance of Counsel Generally
"The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. [Citation.] The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." (Kimmelman v. Morrison (1986) 477 U.S. 365, 374 (Kimmelman).) "Construed in light of its purpose, the right [to counsel] entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.'" (People v. Ledesma (1987)43Cal.3dl71, 215.)
"In order to establish ineffective representation, the defendant must prove both incompetence and prejudice. [Citation.] There is a strong presumption that counsel's performance falls within the 'wide range of professional assistance,' [citation]; the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. [Citation.] The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. [Citation.] The defendant shows that he was prejudiced by his attorney's ineffectiveness by demonstrating that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] And, in determining the existence vel non of prejudice, the court 'must consider the totality of the evidence before the judge or jury.'" (Kimmelman, supra, 477 U.S. at p. 381, fn. omitted, citing Strickland v. Washington (1984) 466 U.S. 668, 688-689, 694-695 (Strickland).)
"Because a petition for a writ of habeas corpus is a collateral attack on a presumptively final criminal judgment, [the petitioner] bears the burden of proving his entitlement to relief by a preponderance of the evidence." (Gay, supra, 8 Cal.5th at p. 1072.) As noted," '[t]hough we defer to the referee on factual and credibility matters, in other areas we give no deference to the referee's findings. We independently review prior testimony [citation], as well as all mixed questions of fact and law [citation]. Whether counsel's performance was deficient, and whether any deficiency prejudiced the petitioner, are both mixed questions subject to independent review. [Citation.] Ultimately, the referee's findings are not binding on us [citation]; it is for this court to make the findings on which the resolution of [petitioner's] habeas corpus claim will turn.'" (Hardy, supra, 41 Cal.4th at pp. 993-994.)
II Deficient Performance "
'Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty .... Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.' [Citation.] 'These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance.' [Citation.] Rather, '[t]o establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness,"' as measured by' "prevailing professional norms."' [Citation.] When applying this standard, we ask whether any reasonably competent counsel would have done as counsel did. [Citation.] Counsel's performance 'is assessed according to the prevailing norms at the time.' [Citation.] Judicial review of counsel's performance is deferential; to establish deficient performance, the defendant 'must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." '" (Gay, supra, 8 Cal.5th at p. 1073.)
Gonzalez identifies three alleged deficiencies in his trial attorney's performance: (1) Comings agreed to the polygraph examination and interview without obtaining a reciprocal benefit from the prosecution; (2) Comings did not pursue his own confidential polygraph examination prior to the agreement; and (3) Comings abandoned his representation of Gonzalez by not attending the polygraph examination or interview. We address each in turn.
First, as noted (see fn. 6, ante), we disagree that Gonzalez obtained no benefit as a result of the agreement. Absent the agreement, the prosecutor was unwilling to negotiate a plea bargain. Under the agreement, however, the prosecutor would reassess this position if Gonzalez passed the polygraph examination. The possibility of a better outcome was real; the prosecutor was aware of cases that had resolved after a successful polygraph examination. Given this potential benefit, Gonzalez has not shown Comings acted unreasonably by agreeing to the polygraph examination and potential post-polygraph interview. (See Sexton, supra, 679 F.3d at p. 1160 [agreement to proceed with police polygraph was "a reasonable tactical decision" where defense counsel hoped that success would result in dismissal or a favorable plea bargain]; see also Doe v. Woodford (9th Cir. 2007) 508 F.3d 563, 569 [agreement for defendant to speak with police was reasonable because "without the statement, there would have been no reason for the prosecutor to participate in further plea bargain negotiations"]; Smith v. Rogerson (8th Cir. 1999) 171 F.3d 569, 573 [agreement for defendant to speak with police was reasonable to "assist in plea bargaining," among other reasons]; United States v. Lewis (7th Cir. 1997) 117 F.3d 980, 984 [agreement for defendant to speak with law enforcement was reasonable "in order to lay the groundwork for a sentencing reduction for acceptance of responsibility or a departure for substantial assistance"].)
The situation in this appeal is unlike Gay, supra, 8 Cal.5th at pages 1074 through 1075, where the Supreme Court found deficient performance by a defense attorney who advised his client to admit to a string of five armed robberies, thereby providing highly incriminating evidence in his capital murder prosecution.
Second, we disagree that Comings's failure to pursue a confidential polygraph examination before agreeing to the police polygraph was unreasonable. More than 40 years ago, this court addressed and rejected a nearly identical argument. (See People v. Berry (1981) 118 Cal.App.3d 122, 134.) We recognized that the results of polygraph examinations "are not considered reliable enough to have probative value" and can be affected by a variety of circumstances, including whether the polygrapher is" 'friendly' or 'hostile.'" (Id. at p. 133.) A subsequent polygraph examination can even be affected by a prior examination. (Ibid.) It is therefore not unreasonable for a defense attorney to forego a confidential polygraph examination prior to agreeing to a police polygraph. (Ibid.) Contrary to Gonzalez's claim, "[p]assing (or failure) on the first test is no assurance against a contrary result on a later test." (Ibid.)
However, as to Gonzalez's third claim, we agree that Comings rendered deficient performance by not attending the polygraph examination and post-polygraph interview. The benefits of counsel's presence during a police interrogation are profound. It has long been recognized that a criminal defendant "requires the guiding hand of counsel at every step in the proceedings against him." (Powell v. Alabama (1932) 287 U.S. 45, 69; accord, Kimmelman, supra, 477 U.S. at p. 380, fn. 5.) "Lawyers in criminal cases 'are necessities, not luxuries.'" (United States v. Cronic (1984) 466 U.S. 648, 653 (Cronic), quoting Gideon v. Wainwright (1963) 372 U.S. 335, 344.)
Miranda itself rests, in part, on the importance of counsel. The presence of counsel during police interrogation "insure[s] that statements made in the government-established atmosphere are not the product of compulsion." (Miranda, supra, 384 U.S. at p. 466.) "That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process." (Ibid.)
The Attorney General argues, without any citation to authority, that it was sufficient for Comings to consult with Gonzalez prior to the polygraph examination. We disagree. Miranda specifically highlighted the inadequacy of such pre-interrogation consultation: "The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. . . . Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. [Citation.] Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." (Miranda, supra, 384 U.S. at pp. 469-470, italics added; accord, Escobedo v. Illinois (1964) 378 U.S. 478, 488 ["The fact that many confessions are obtained during this period points up its critical nature as a 'stage when legal aid and advice' are surely needed."].)
"The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial." (Miranda, supra, 384 U.S. at p. 470.)
Comings himself testified that he would want to be with a client who was being interrogated by law enforcement. If someone were facing a police interview, Comings would "tell them not to talk to the cops unless there was some benefit they would get." If the person asked whether they should have a lawyer during the interview, Comings would say "[p]robably yes." As the special master wrote, Comings agreed it is "preferable" for a defendant to have an attorney present.
Moreover, even looking at the specific circumstances here, there could be no legitimate strategic or tactical reason for Comings to be absent. It did not benefit Gonzalez in any way. Instead, it was highly likely to be harmful. Gonzalez had no prior experience in the criminal justice system and only a sixth-grade education. He was facing the potential of life in prison. (See In re Jones (1996) 13 Cal.4th 552, 566 ["[T]he 'seriousness of the charges against the defendant is a factor that must be considered in assessing counsel's performance.' "].) Gonzalez was undergoing a polygraph examination, which was likely unfamiliar to him. He would then be interrogated by an experienced law enforcement officer. The prosecution had, on its side, a law enforcement polygraph examiner, two district attorney investigators, the prosecutor herself, and a technician. The prosecutor expected Comings to be there. And he should have been.
In this respect, therefore, Comings's representation was objectively unreasonable and did not conform to prevailing professional norms. No reasonably competent counsel would have acted as Comings did. As a federal district court wrote, in a similar situation, "[T]here can be little doubt that sound practice requires a defendant's lawyer to be present when a post-arraignment interrogation is scheduled to occur. It is inconceivable that competent defense counsel would conclude that his client could soldier through on his own." (Hannah v. Bock (E.D.Mich. 2006) 447 F.Supp.2d 798, 806 (Hannah).) "There was no strategic advantage to be gained from not attending the session, and the decision not to appear and provide some level of representation cannot be characterized as anything but unsound." (Ibid.)
The Attorney General speculates that Comings's absence was somehow attributable to Gonzalez. He writes, "The record does not preclude the possibility that Gonzalez insisted upon his innocence and ability to pass a polygraph without counsel's presence." The relevant consideration, however, would be whether Gonzalez insisted that his counsel not be present for the polygraph and post-polygraph interview, not merely whether he believed he was able to pass a polygraph without counsel. In any event, the record does not support the Attorney General's speculation. Instead, the record supports the conclusion that Comings's absence was his own decision, apparently because he had a scheduling conflict, not the result of Gonzalez's own direction.
We note that the Attorney General does not argue, and we have no occasion to consider, whether Gonzalez's alleged Miranda waiver in some way precludes the ineffective assistance of counsel claim that Gonzalez asserts here.
III Prejudice
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." (Strickland, supra, 466 U.S. at p. 691.) "To obtain relief, [a petitioner] must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Gay, supra, 8 Cal.5th at p. 1086.) "How readily deficient performance undermines confidence in the trial's outcome will in part depend on the strength of the trial evidence on any decisive points. A 'verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" (Id. at p. 1087.)
"An analysis of prejudice under Strickland does not involve the application of 'mechanical rules.' [Citation.] Instead, 'the ultimate focus . . . must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" (Gay, supra, 8 Cal.5th at p. 1087.) "This second part of the Strickland test 'is not solely one of outcome determination. Instead, the question is "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." '" (Hardy, supra, 41 Cal.4th at p. 1019.)
"[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." (Strickland, supra, 466 U.S. at p. 693.) "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." (Id. at p. 694.)
Comings's deficient performance left Gonzalez unrepresented at the polygraph examination and the post-polygraph interview by law enforcement. It is undeniably difficult to determine what may have happened if Comings had been present. But where, as here, a defendant has shown that his representation was inadequate and objectively unreasonable, we are obligated to carefully examine the consequences of such deficient representation and determine whether the defendant has shown prejudice.
As noted, it is a bedrock principle of our criminal law that the presence of counsel during an interrogation matters, i.e., a criminal defendant derives a concrete benefit from such representation. Indeed, the United States Supreme Court has specifically emphasized "counsel's presence" as essential. (Minnick v. Mississippi (1990) 498 U.S. 146, 152.)
The presence of counsel "insure[s] that statements made in the government-established atmosphere are not the product of compulsion." (Miranda, supra, 384 U.S. at p. 466.) Without counsel, a defendant's will may quickly be overcome by the pressures of an in-custody interrogation. (Id. at p. 469.) The assistance of counsel serves to mitigate these pressures and helps to ensure that any statement made to law enforcement is truly voluntary. (Id. at p. 470.)
The interrogation here undeniably brought pressure to bear on Gonzalez, which would have been mitigated by the presence of counsel. After the polygraph examination, the examiner told Gonzalez the results were "very bad" and he was "sure" that Gonzalez's penis had touched Jane. He appealed to Gonzalez's emotions, saying that Jane was "a little girl" and "we can't tell her 'you are a liar.'" Gonzalez maintained nothing happened.
The district attorney investigator asked whether Gonzalez wanted to speak with him, but Gonzalez's ability to refuse was somewhat unclear given the agreement between Comings and the prosecutor. Gonzalez faced a similar dilemma when the investigator read him his Miranda rights.
More specifically, the investigator falsely told Gonzalez that his DNA had linked him to Jane and that she had identified his penis. It is not necessarily unconstitutionally coercive for police to lie during an interrogation (see, e.g., People v. Farnam (2002) 28 Cal.4th 107, 182), but it is a specific danger that can be recognized and countered by competent counsel. Comings himself testified that he would try to prevent the use of such techniques. He would stop the interrogation and request to speak to his client privately-even if he merely suspected that the police were being untruthful. It is likely that the district attorney investigator here would not even attempt to use such ruses if Comings had been present; they would not have served their purpose of provoking the defendant to talk when he otherwise would not. Because Comings was absent, Gonzalez did not have the benefit of his intervention. When the investigator confronted him with Jane's alleged identification, he said, "Ah fuck," which the prosecutor at trial maintained was highly incriminating.
In addition, Gonzalez's response to the investigator's question about the scar on Jane's anus reflects his inability, in the absence of counsel, to keep in mind his constitutional right "to choose between silence and speech" in response to interrogation. (See Miranda, supra, 384 U.S. at p. 469.) Competent counsel would have prepared Gonzalez for such a question, if the evidence had been disclosed in discovery, or intervened to discuss, if it had not. Gonzalez's panicked answer, with an obviously false story, is the type of impulsive and emotional response that counsel's presence is designed to prevent. Gonzalez's phone calls to his wife and son flow directly from this response and again reflect the absence of any assistance of counsel.
The Attorney General asserts that Gonzalez's claim "that he would not have reacted the way he did or would not have called his family afterward" is speculative and does not establish prejudice as "a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.) The federal district court in Hannah likewise found that the defendant had not shown prejudice from his counsel's absence. (Hannah, supra, 447 F.Supp.2d at pp. 807-808.)
While the assessment of prejudice necessarily involves hypothesizing what would have happened if counsel had performed competently, we disagree that it is speculative to conclude that Gonzalez would not have made the admissions at issue. The authorities discussed above, and common experience, dictate that an interrogation without counsel proceeds very differently and results in very different results than an interrogation with competent counsel present. The transcript of the interrogation shows a level of familiarity, emotional manipulation, and pressure that would not have occurred if counsel had been present. And, as to the specific admissions at issue, Comings himself testified that he would have intervened to discuss the investigator's questions if he suspected any deception. That the interrogation would have proceeded differently is not mere fantasy or speculation; it is demonstrable reality.
Likewise, at trial, there was a reasonable probability that Gonzalez would have obtained a better result if his statements and calls to his wife and son had not been introduced. The evidence against Gonzalez was meaningful but not overwhelming for purposes of our assessment of prejudice under Strickland. The prosecution's case rested primarily on Jane's testimony and her prior statements. Her allegations against Gonzalez were reasonably consistent but not without contradictions. For example, Jane alternatively said Gonzalez touched her over and under clothes in his truck. Similarly, she initially denied that Gonzalez put his penis in her vagina in the Beaumont house, that he put his mouth on her vagina in Beaumont, or that he tried to make her touch his penis.
The testimony from school officials about Jane's initial disclosure appears to have been compelling, though the substance of those disclosures (which focused on touching in her bedroom) were different from her eventual allegations. (Jane told police officers about the bedroom touching as well.) At trial, Jane denied that Gonzalez ever touched her in her room, and she said that she only hid under her bed once.
Beyond Jane's statements, there was little independent corroboration of her allegations. The medical doctor's testimony was substantive, but the trial court did not think it was very persuasive: "[I]t was maybe slightly corroborative of what the victim had to say." There was no other physical evidence.
The prosecution's case-in-chief therefore depended largely on Jane's credibility. Gonzalez's defense challenged aspects of her story, including her assertion that she hid under her bed. Gonzalez's family members were supportive, but they had an obvious interest in seeing him acquitted.
In rebuttal, the prosecution offered into evidence the statements and calls at issue: Gonzalez's "Ah, fuck" response; his statement about Jane injuring herself on the sidewalk; and his two calls where he encourages his wife (directly or through his son) to remember such an injury.
The prosecutor explained the significance of this evidence in her closing argument: "In his own statements, right, in his own conversations you know, you know that he is guilty. Because when he is confronted by [the investigator], when he called him out and says, you know what, how does she know you are . . . uncircumcised? His response, his immediate response is, 'Oh, fuck,' because you can't explain that away .... [¶] And when he says, how do you explain the injury? Okay, and I want to be clear the injury on her thing, right, her injury on her anus, how do [you] explain that? His response is a lie. His response is she fell on a sidewalk. Really, on a sidewalk? She fell on a sidewalk and she hurt her-she hurt herself. My wife knows everything about it. She can get all the hospital records for you. Well, we know that is an absolute blatant lie."
In her rebuttal argument, the prosecutor returned to this evidence. In particular, she called Gonzalez's "Oh, fuck" response "very important": "The other thing is this, how do they explain the finding in her anus? The defendant's statement to [the investigator] is very important, because he is . . . caught in a moment of, I'm going to be frank, an 'Oh, shit,' moment. He has been caught and confronted with, why didn't-why is she able to describe your penis, man? And his exact words were, you already you know what." The prosecutor went on, "And then when he is told and how do you explain this injury in her anus? How do you explain this injury that she sustained?
He comes up with this ridiculous story of, oh, one time she fell on the sidewalk. On the sidewalk and injured the inside of her anus, inside of her booty on her anus, really? That is just consciousness of guilt. Those are words of a guilty man. [¶] And then the fact that he is desperate to call his wife the same day. Those are actions of a guilty man."
As the prosecutor's argument reflects, Gonzalez's statements and calls were "very important" because they were a different kind of evidence than the rest of the prosecution's case. They were statements directly from Gonzalez, not the victim, and they served as independent corroboration of his alleged guilt. The prosecutor's assertion that Gonzalez's statements were "very important" is itself a strong signal that they had a meaningful effect at trial and were potentially prejudicial. (See People v. McDaniel (2019) 38 Cal.App.5th 986, 1008; see also People v. Esqueda (1993) 17 Cal.App.4th 1450, 1487.) It was not "relatively mild rebuttal evidence," as the Attorney General asserts.
The jury also focused on this evidence, at least in part. They requested the transcripts of Gonzalez's calls with his wife and son, which demonstrates their importance in the jury's deliberations. They also requested a transcript of Jane's forensic interview, a readback of Jane's testimony about her alleged abuse in the Beaumont house, and a readback of a police officer's testimony about Jane's second interview with police. "Juror questions and requests to have testimony reread are indications the deliberations were close." (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.)
Considering all of these circumstances, there is a reasonable probability the result of Gonzalez's trial would have been different if Comings had attended the polygraph examination and post-polygraph interview, and thus if the evidence at issue had not been available to be introduced at trial.
Viewing the proceedings as a whole, they reflect" 'a breakdown in the adversarial process that our system counts on to produce just results.'" (Gay, supra, 8 Cal.5th at p. 1087.) Defense counsel abandoned the defendant at a crucial point in the case. The prosecution obtained a significant advantage at trial because Comings chose not to attend the polygraph examination and post-polygraph interview. Comings's absence fell far short of prevailing professional norms and deprived Gonzalez of the benefits of representation. The polygraph examiner and the district attorney investigator were able to bring techniques to bear on Gonzalez that would not have been effective if Comings had been present. Those techniques elicited statements (and prompted calls) that were "very important" evidence, in the view of the prosecutor. Because this evidence came directly from Gonzalez, it supported his guilt like no other evidence at trial.
The prosecution may retry Gonzalez within the time allowed by law. In granting Gonzalez relief, we express no view on the sufficiency of the evidence to convict him if he were to be retried. As our Supreme Court has explained, "[i]t is not inconceivable that even with the assistance of competent counsel, the jury might still have voted for guilt. But 'that is not the test.' [Citation.] [The petitioner] has shown 'that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.'" (Gay, supra, 8 Cal.5th at p. 1092.) We therefore grant relief and vacate the judgment against Gonzalez.
In light of our conclusion, we need not consider Gonzalez's contention that Comings's absence was prejudicial per se. (See Cronic, supra, 466 U.S. at pp. 658-659.)
DISPOSITION
The judgment is vacated. Upon finality of this opinion, the clerk of the court is directed to send a certified copy of this opinion to the trial court for filing. The clerk is also directed to send copies of this opinion to the State Bar of California and Gregory Comings. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); Sixto, supra, 48 Cal.3d at p. 1265, fn. 3.) The Attorney General is directed to serve a copy of this opinion on the prosecuting attorney. (See Pen. Code, § 1382; In re Hall (1981) 30 Cal.3d 408, 435, fn. 9.)
WE CONCUR: HUFFMAN, Acting P. J., IRION, J.