Opinion
H030446.
4-25-2008
The People, Plaintiff and Respondent, v. Artemio Gonzales, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Artemio Gonzales appeals from a judgment of conviction entered after a jury found him guilty of kidnapping Jane Doe I (Ellen) to commit rape (Pen. Code, § 209, subd. (b)(1) — count one); attempted voluntary manslaughter of Ellen (§§ 192, subd. (a), 664 — count two); assault upon Ellen with intent to commit rape (§ 220 — count three); attempted forcible rape of Ellen (§§ 261, subd. (a)(2) 664 — count four); assault with force likely to produce great bodily injury upon Ellen (§ 245, subd. (a)(1) — count five); assault upon Jane Doe II (Sarah) with intent to commit rape (§ 220 — count six); unlawful sexual intercourse with a minor, Sarah, (§ 261.5, subd. (d) — count seven); oral copulation of a person under 16, Sarah, (§ 288a, subd. (b)(2) — count eight); lewd act upon a child, Sarah, (§ 228, subd. (c)(1) — count nine); false imprisonment of Sarah by violence (§ 236 — count 10); and misdemeanor possession of child pornography (§ 311.11, subd. (a) — count 11). The jury also found true the enhancements for great bodily injury (§ 12022.7) attached to counts one, three, and five, and for great bodily injury during a sex offense (§ 12022.8) attached to count four. The trial court sentenced defendant to a determinate sentence of 17 years and eight months consecutive to an indeterminate sentence of life with the possibility of parole. On appeal, defendant contends that the trial court abused its discretion in denying his motion for a new trial, erred in instructing the jury pursuant to CALJIC No. 17.41.1, and committed several sentencing errors. We reverse the judgment and remand for resentencing.
All further statutory references are to the Penal Code.
I. Statement of Facts
A. Prosecution Case
1. Counts Six through 10 (Charges Involving Sarah)
On April 11, 2004, Sarah, who was then 15 years old, was living with her mother in Salinas. After dinner, she began chatting online with defendant with whom she had been communicating during the previous two months. Sarah had told him that she was 15, and he had claimed that he was 25. Sarah told defendant that she wanted to meet him face-to-face, and that she would be able to leave the house after her mother went to sleep. She also gave him her cell phone number and her address.
At about midnight, defendant called Sarah, and she left her house to meet him. Defendant, who was driving a white Jeep, told her that he knew about a vacant apartment. When they arrived at his apartment complex, they sat in the carport and drank from a bottle of Southern Comfort that defendant had brought. After about 15 or 20 minutes, they went to an apartment on the second floor. The door was unlocked. There was no furniture, but the heater and lights worked. Defendant and Sarah each took another sip of Southern Comfort. There was a red ball on the balcony outside the apartment. Defendant broke the screen and retrieved the ball, which they played with for awhile.
Defendant then began paying more attention to Sarah. As they were talking, he began touching her face. After he kissed her, she told him that it was wrong because he had a girlfriend. Defendant replied that he didnt care, took off her pants, and began rubbing her inner thighs, stomach and breasts. He also began kissing her all over her body. Sarah may have put her pants back on, but defendant lifted her up by her ankles and her pants came off. Defendant then put his hands in her underwear.
Defendant touched Sarahs private parts and put his finger inside her vagina. Defendant was naked. Sarah backed away, and defendant got on top of her and held her wrists. Sarah felt his penis penetrate her vagina and she tried crawling away. After Sarah put her clothes on, defendant went to the bathroom. Sarah was sitting in a corner where she could see directly into the bathroom. Defendant left the door open and she could see that he was masturbating.
When defendant returned, Sarah said, "`I have to go home because its getting too late." Defendant said, "`Thats fine," and that he would take her home. At that point, Sarah had had "like three sips of alcohol." However, defendant had been drinking throughout the evening, and Sarah was concerned that he would be unable to drive. She tried to hide the alcohol, but defendant eventually got it back.
At about 3:00 a.m., defendant and Sarah left the apartment. They took the red ball with them. When they reached defendants car, defendant told her to wait. He returned less than five minutes later, and they left.
The front window on the drivers side of defendants car was broken, but there was tape covering it. Since the wind was causing the window to make noise, defendant punched out the tape. When Sarah became cold, defendant put his jacket around her. Sarah then noticed that defendants vehicle was low on gas, and told him so twice. When defendant kept driving, Sarah said, "`Im just going to call my friend to pick me up." Defendant became very upset. In response, Sarah said, "`Just take me home. I wont call anyone. I promise." She then gave him her cell phone, which he put in the back seat inside his beanie.
Defendant stopped at a gas station, where he tried to persuade the attendant to trade some food for the red ball. Sarah believed that this indicated that defendant was "really drunk." While defendant got the gas, Sarah went inside to pay for it. She did not tell the people inside that she was in an uncomfortable situation.
After they left the gas station, defendant drove past the street leading to Sarahs home. He eventually drove down a dirt road where there were no houses or streetlights. When he stopped the car, Sarah became nervous. They talked briefly, and then Sarah tried to get out of the car. Defendant grabbed her hair and pulled her back. Sarah scratched his arm and tried to get him to release her. Sarah asked, "`Youre going to rape me, huh?" Defendant responded, "`Theres nothing else that I can do," and "`Its either . . . youre going to give me a blow job or do me." Sarah told him, "`Well, I have to go home because my parents are going to wake up and notice Im not in bed." Defendant agreed and said he would meet her the next night.
Defendant drove Sarah home and returned her cell phone. She entered her home, recorded the license plate number of defendants Jeep, and went to bed. When she couldnt sleep, she called 911 and said that someone had tried to rape her. She was told to tell her mother what had happened, but she did not want to do so. The operator then said, "`You have to because the cops going to come knocking at your door any time." Sarah told her mother, and the police arrived.
At about 4:17 a.m., Officer Thomas Larkin was dispatched to Sarahs home. Sarah gave him a physical description of defendant and the license plate number of his Jeep. Larkin was then able to identify defendant as the registered owner of the Jeep. Larkin also took Sarah to defendants apartment complex, where she identified defendants Jeep and showed officers the vacant apartment where defendant had taken her. Sarah later picked defendants photo out of a photo lineup.
The police later found a red ball and a bottle of Southern Comfort in defendants Jeep.
At about 10:00 a.m. on April 11, 2004, Sheree Goldman, a sexual assault nurse examiner, interviewed and examined Sarah. She observed that Sarah had scratches on her wrist. She also noted that Sarah had a small tear on her vagina and petechiae on her cervix. These injuries are commonly caused by penetration. In Goldmans view, Sarahs injuries were consistent with her description of the incident.
The parties stipulated that no sperm were found on Sarahs vaginal or rectal slides and no seminal fluid was detected on Sarahs vaginal swabs, rectal swab, or anal wipes. However, amylase, an enzyme found in high concentrations in saliva, and to a lesser degree in other bodily fluids, including vaginal secretions, was found on Sarahs vaginal swabs and on her neck swabs.
2. Counts One through Five (Charges Involving Ellen)
At the time of trial in August 2005, Ellen was 22 years old and a recovering drug addict. On the date of the charged offenses, Ellen was working as a prostitute in Salinas. She was also using marijuana and crack cocaine.
The parties stipulated that Ellen had previously suffered misdemeanor convictions for prostitution and joyriding.
At about 4:00 a.m. on April 11, 2004, Ellen and a male friend were walking on a street in Salinas when defendant drove up in his Jeep. Defendant honked his horn, and Ellen went to talk to him. She asked him if he wanted a date, and he said yes. After negotiating payment, Ellen got into the Jeep and defendant drove away. Ellen became concerned, because defendant appeared agitated and was drinking from a large liquor bottle. She was also unable to close her window.
When Ellen noticed that there were fewer houses, she asked defendant to take her back to where they had met. Defendant replied that he would not take her back until after they had sex, and kept driving. Ellen asked him for some money to "reassure [her] that everythings going to be fine." Defendant told her that he did not have any money. Ellen became scared, because they were in a remote area where there were no houses or streetlights. Though she carried a knife for protection, she had never used it for that purpose and did not think to use it to make defendant pull over.
After the incident, the police found Ellens knife and her makeup inside defendants Jeep.
Defendant eventually pulled over to the side of the road. He grabbed her and told her to orally copulate him. They struggled and defendant held on to her jacket. Ellen got out of her jacket, exited the Jeep, and started running. She did not know where she was. As she was screaming and running down the side of the road, defendant drove alongside her and yelled that he would take her back if she got in the car. Ellen kept running. Defendant then chased Ellen on foot until he caught her, pulled her to the ground, and punched her in the face and chest. He then put his hands around her neck and began choking her and hitting her head against the ground. He threatened to kill her if she did not do what he said. He cut off her airway, and she began turning blue. She thought that she was going to die. Defendant told her that if she gave him oral sex, he would let her up and take her back. She said yes, because she was trying to trick him into letting her go. When defendant let go of her neck, she fought back.
Defendant and Ellen continued struggling with each other and went to the other side of the road where defendant began ripping off her necklace and clothes. He then dragged her into a muddy irrigation ditch. He again began strangling her. As some cars drove by, defendant told her, "`If you scream, Ill kill you." Defendant pushed her head into the muddy water, and Ellen struggled to get her head above the water line. She eventually lost consciousness. When Ellen woke up, her body was covered with water and defendant was gone. She ran towards a house for help.
At about 7:00 a.m. on April 11, 2004, Scott Lopez was driving on Hitchcock Road towards Davis Road, when he saw Ellen. She was naked and covered with mud. Lopez pulled over and approached her. She seemed terrified and very cold. He persuaded her to get in his car, covered her with a jacket, and called 911.
Detective Janet Schaefer received a dispatch at about 7:15 a.m. regarding a possible sexual assault. She went to the hospital emergency room where she saw Ellen, who seemed to be in extreme pain. Ellens entire body was caked with mud. There was even mud in her mouth and between her teeth. Ellen had abrasions on her knee, elbow, and face, and scratches on her face, neck, and collar bone. Ellen denied that she had any cuts, bruises, scrapes, or scratches before defendant attacked her.
Schaefer asked Ellen about her throat and voice. Ellen said that her throat felt swollen, her voice was raspy, and it was difficult for her to swallow, talk, and breathe. She was also experiencing neck pain. According to Schaefer, the reddish marks and scratches on Ellens neck were consistent with strangulation. Schaefer also observed petechiae in Ellens eyes. Ellen told Schaefer that she had smoked some marijuana and cocaine about an hour before she encountered defendant.
Ellen gave Schaefer a description of her assailant and said that he was driving a white Jeep. After the police determined that Ellens vehicle description was similar to the vehicle that the police were investigating at defendants apartment complex, they believed that both cases involved the same perpetrator. Ellen identified defendant as her assailant from a photo lineup.
Dr. Andrew Kaminski was on duty in the emergency room when Ellen arrived. She had been assaulted and left for an unknown time in the cold. She was hypothermic, and had abrasions on her head and neck. A CAT scan reviewed a subdural hematoma and skull fractures on either side of her head. Kaminski described these injuries as "[v]ery serious" and "life threatening." They had occurred within a period of hours, not days.
Goldman also examined Ellen. Ellen told her that a man had hit her head and shoulders, and strangled her until she lost consciousness. Ellen did not know if she had been vaginally or anally penetrated. Her assailant said that he had a knife in his pocket and he threatened to kill her if she did not perform oral sex on him.
According to Goldman, Ellens injuries were consistent with her history of attempted strangulation. Goldman did not observe any injuries to Ellens genitalia. She did note, however, that they were covered with mud, and that debris had pooled around her cervix. Goldman testified that it would have been impossible for mud to float up to Ellens cervix.
3. Defendants Arrest and Police Investigation
At about 9:20 a.m. on April 11, 2004, the police went to defendants apartment and knocked on the door several times. The kitchen blinds moved a little bit. The police knocked again and announced, "`Salinas Police. Come to the door." The kitchen blinds opened, and Sergeant Tracey Molfino could see defendant looking out. Molfino asked defendant to come to the door so they could talk to him. Defendant kept asking, "`What is this about?" Molfino ordered him to come to the door. When defendant refused to do so, the police kicked in the door, entered the apartment, and arrested defendant.
Molfino detected an odor of alcohol on defendants breath. According to Molfino, defendant was "under the influence of alcohol to a certain degree, but was not unable to care for his safety. He wasnt staggering. His speech was slow, but it wasnt slurred. He was able to comprehend what [he] was telling him."
Goldman examined defendant, who told her that he was 30 years old. He had various injuries, including a bruise on his right hand, and abrasions on his right forearm, his left elbow, and both knees. Defendant was oriented and cooperative, but he refused her request for a blood sample.
The police seized defendants Jeep. They found large amounts of mud on its interior and exterior.
4. Count 12 (Child Pornography)
Detective John Criswell entered defendants residence pursuant to a search warrant and seized his computer. Lynn Lincoln, an investigator with the district attorneys office, conducted a search of the computer files and found nine images of child pornography. These images had been saved and placed in a single folder on the computer.
5. Testimony of Defendants Girlfriend
Michelle Anderson testified that she began living with defendant in December 2002. On the evening of April 11, 2004, defendant went to the computer room in their apartment and she fell asleep at about 9:00 p.m. At about 6:32 a.m., Anderson heard a clicking noise from the front door and realized that defendant was not in bed. Shortly thereafter, she heard the bathroom fan and water running in the bathroom.
Anderson went into the bathroom and found defendant, who was covered with mud, trying to rinse his clothes in the bathtub. She asked him what was going on, and he said, "`Dont worry about it." He did not tell her where he had been or why he was covered with mud. She was not close enough to him to smell alcohol on him. Though he was not slurring his words, she thought that "if he wasnt drunk, he would have probably told [her] what was going on." Since defendant would not answer her questions, she told him not to come to bed.
After defendant had showered, he came to Anderson and asked her to forgive him. Anderson asked, "`And Im going to forgive you for what?" Defendant did not respond. He told her that he loved her and asked if he could get in the bed. She would not let him do so, and he left the room. Anderson went back to sleep until the police arrived.
Anderson also testified about defendants accident. Defendant fell off a ladder, and had to have stitches. He stayed home for a few days, and was then cleared for work. However, he began having migraines and was fired from his job. After the accident, he was quieter and more withdrawn. He did not seem the same, but she could not tell if he had undergone any personality changes. "He started to become a little bit more like himself" after he began taking medication.
According to Anderson, defendant drank often and she would become angry with him. On one occasion, Anderson and defendant were arguing about his drinking when defendant pushed her onto the bed. She told him not to touch her, and left the apartment. This incident occurred before defendants accident. Defendant was never "physical" with her again.
B. Defense Case
Defendant testified on his own behalf. Defendant was not working when he was arrested, because he had fallen from a two-story building. He injured his head, shoulder, back, and knee. The day of his accident, he was taken to Doctors on Duty. He then began experiencing constant headaches, dizzy spells, difficulty sleeping, and vision problems. He also seemed "to be a bit more aggressive than [he] used to be. More impulsive." Defendant went to a number of physicians, including a psychiatrist and a neuropsychologist, after his accident. Though a physician had obtained an image of his brain, defendant had not received any treatment for a brain injury.
According to defendant, Anderson left after they had been arguing and he would not stop talking. He could not remember if he had pushed her, but if she said that he did, then he must have done so because she would not lie. He also stated that this incident occurred a week after his accident.
Defendant testified regarding the events of April 10, 2004. That night, he was using his computer after Anderson went to bed. Sarah sent him an email in which she stated that she had a bottle of tequila left over from a party and she wanted him to help her finish it. She also gave him her cell phone number and address. He picked her up and they returned to his apartment complex where they stayed in his vehicle for a short time. Sarah then brought up an empty apartment that he had previously mentioned. Though defendant suggested that they stay in the car, Sarah insisted that they go to the apartment.
Defendant and Sarah went to the apartment. When he reached for the door handle, he did not know whether it would be unlocked. Since it was unlocked, they entered the apartment. After they played with a red ball, they entered one of the bedrooms where defendant leaned against a wall in a crouching position. Sarah sat on his lap and kissed him. Sarah then got up, removed her shoes and pants, and said, "`Well, what are you waiting for? I took something off. Now you take something off. Thats the way it works." Defendant removed his shirt. Sarah, who was lying on the carpet, took off her underwear and said, "`Well, dont just stand there. Take your clothes off and get over here." Defendant testified ". . . [I]n one quick motion I unbuttoned my belt. I pulled []my pants down, my shorts down. I got down on my knees, and I started walking towards her on my knees. . . . Before I reached her, she told me, `Stop right there. Youre not hard. That means I dont even turn you on. And thats when I made a mistake. . . . I leaned down and I began to orally copulate Sarah." Sarah did not tell defendant to stop.
After defendant and Sarah put their clothes back on, they talked until Sarah asked defendant to take her home. They took the red ball and the bottle of Southern Comfort with them and left in defendants Jeep. They stopped to get gas, and Sarah went inside to pay. When she returned, she was happy because the attendant had been flirting with her.
As they were driving, defendant tried to persuade Sarah to stay out longer. She told him that she needed to get home, because she did not want to get in trouble and she wanted to get some sleep because she had to go to church the following morning. Defendant turned onto Hitchcock, parked, and said, "`Lets talk for a little bit. Ill take you home in a while." When Sarah opened the passenger door and said that she would walk, defendant told her that he would take her home right then.
After turning onto the street where Sarah lived, defendant pulled over when they were about a half a block from Sarahs house and told her to get out of the car. Defendant was "angry because [he] felt that she wanted to go home kind of like right afterwards. Maybe after she got what she wanted in a way, so to speak. So thats why [he] kind of didnt drop her off all the way." Sarah said, "`I live over there. Remember? Thats where you picked me up." Defendant responded, "`Get the fuck out of my car you fat, ugly, little bitch." As she started to get out of the car, he said, "`Hurry the fuck up." Sarah responded, "`Im going to call the cops on you." Defendant said, "`Whatever." He never talked to her again.
Defendant then drove down North Main Street. As he approached the Rodeo Inn, he saw a man and a woman. After the woman flagged him down, he pulled over and rolled down the passenger window. The woman asked if he wanted a date, and he said, "`Yeah, sure." According to defendant, they "never discussed anything as far as sexual or as far as money was concerned. . . . [¶] [He had] a feeling she was a prostitute. And [he] never intended to do anything sexual with her, so to speak."
The woman got into his vehicle and said, "`Im Ellen. Im from L.A." Defendant drove until he came to Davis Road where he had been earlier in the evening. He did not have any particular destination in mind. Ellen said that she had been there before and defendant continued driving. He turned onto Hitchcock Road. He parked on the road and turned off the car.
Ellen took off her sweater, and defendant noticed that she had a scab and a "bunch of marks" on her forehead. Ellen asked him what he wanted, and he replied, "`Nothing. Lets just talk for awhile." Ellen told him, "`I need to make money. Take me back." At this point, defendant noticed that his watch was missing. He had left it on the parking brake, which was in the middle of the car. Defendant was mad, and he said, "`Give me my watch, you fucking bitch." Ellen told him that she did not have his watch and asked him to take her back. Defendant reached to grab her, and she slapped his forearm. She then got out of the car.
When defendant got out of his car, Ellen took off running. Defendant chased her. When he was right behind her, she fell into a large puddle that was off the road. Defendant slipped and fell into the same puddle. Ellen was lying on her back and was almost fully submerged. Defendant grabbed her by her arms and pulled her out of the water. Ellen asked defendant, "`Am I okay now?" Defendant responded, "`Give me my watch back, you fucking bitch." Ellen pointed to the right side of her waist, about hip level. She had defendants watch stuck in her side. Defendant grabbed the watch and put it on his wrist. Ellen then told defendant, "`Im sorry. You can do whatever you want with me." Defendant told her to take off her clothes, which she did.
According to defendant, "thats when [he] may have made another mistake." He testified, "I leaned down towards her and I inserted — I put my hand in her vagina, momentarily. I caught myself, `what the heck am I doing? And I stopped." Defendant got up. When he realized that his clothes were muddy, he got mad, grabbed Ellens clothes, and threw them to the side. After he threw one of her shoes, he left. Soon after he started driving, he threw her sweater and maybe her scarf out of the window.
According to defendant, he never grabbed her around the head or throat, and he never touched her upper body, shoulders, neck, or head. With the exception of the scab on her forehead, he did not notice any other injuries on Ellen. As defendant was driving away, he saw Ellen running into the road and then fall. He did not think that she was dead or unconscious when he left.
Defendant returned to his apartment. He was covered with mud. As he was cleaning up in the bathroom, Anderson asked him what had happened. Defendant did not answer. He then went to the bedroom and asked Anderson to forgive him. She did not want him in bed with her and he went into the living room. Shortly thereafter, the police arrived.
Defendant acknowledged that on September 6, 2002, he pleaded guilty to a charge of domestic violence (§ 243, subd. (e)(1).
The trial court instructed the jury that it could consider this testimony for the sole purpose of determining defendants credibility.
C. Prosecution Rebuttal
Lisa Seaton, defendants ex-wife, testified that she had known him for approximately 10 years. In May 2002, Seaton was living with defendant and their two children. Seaton was angry with defendant because he was intoxicated. They argued about putting their baby to sleep. When she tried to get the baby, defendant slapped her on the face with an open hand. Eventually, she put the baby to bed. Defendant then entered the bedroom with a steak knife that had a blade about six to eight inches long. He put the knife up to his mouth and held it across his tongue. He said, "`[S]leep tight, bitch. Im going to kill you." Seaton called a friend, who called the police.
The trial court again admonished the jury that evidence of defendants prior misdemeanor offense could be considered only for the limited purpose of determining defendants credibility.
II. Discussion
A. Motion for A New Trial
Defendant contends that the trial court abused its discretion in denying his motion for a new trial. He argues that his counsel rendered ineffective assistance by failing to develop and present psychiatric evidence that he lacked the specific intent necessary to prove seven of the 10 felony counts.
The counts that required proof of specific intent were: count one (§ 209, subd. (b)(1) [see People v. Jones (1997) 58 Cal.App.4th 693, 717]; counts two (§§ 664, 187), three, six (§ 220), and four (§§ 664, 261, subd. (a)(2)) [see People v. Swain (1996) 12 Cal.4th 593, 604 — attempted offenses are specific intent crimes]; count eight (§288a, subd. (b)(2)) and count nine (§ 288a, subd. (c)(1)) [see People v. Griffin (1988) 46 Cal.3d 1011, 1030]. As to count two, defendant was convicted of the lesser offense of attempted voluntary manslaughter (§§ 164, 192, subd. (a)).
1. Background
In April 2004, the trial court suspended proceedings and appointed Dr. Taylor Fithian to evaluate defendants competency to stand trial. In May 2004, the trial court found defendant competent to stand trial based on Fithians report.
On June 7, 2005, Arthur Kaufmann, defendants trial counsel, declared a conflict of interest. On June 9, 2005, Terrance McCleerey accepted the appointment after the trial court appointed the alternate defenders office to represent defendant. On the same day, McCleerey expressed doubt about defendants sanity. The trial court again suspended proceedings, and appointed Dr. Elaine Finnberg to evaluate defendant. About two weeks later, the trial court found defendant competent to stand trial based on Finnbergs report.
After trial, the court granted defendants motion to substitute Eugene Martinez as his attorney. In January 2006, defendant filed a motion for a new trial based on ineffective assistance of counsel. He argued that McCleerey failed to present a defense based on medical evidence that defendants brain injury impaired his cognitive functioning and that he did not adequately prepare defendant to testify. Defendant submitted three reports in support of his motion: (1) a May 5, 2004 report and evaluation by Fithian; (2) an undated report by Dr. Leonti Thompson of Amen Clinic regarding a SPECT brain scan; and (3) an August 17, 2005 report by Dr. Ricardo Winkel, who examined and tested defendant in connection with his workers compensation claim.
On appeal, defendant is not raising the issue of McCleereys failure to adequately prepare him to testify.
In his report, Fithian found that defendant was competent to stand trial. Fithian also stated: "Because of the seriousness of his crimes and because it appears that his psychological problems began shortly after his mechanical fall and head injury in September of 2003, I am concerned about the possibility of an organic brain injury. Mr. Gonzales reported, however, that he had an MRI of his head that was ordered by his treating physician, Harry Noveno, M.D. I think it is imperative that his defense attorney, Mr. Kaufman, obtain the records pertaining to all the medical treatment Mr. Gonzales has been involved in and the results of the MRI scan."
Thompsons report stated that she could not assess defendants mental state without a personal examination. She did, however, review the SPECT scan findings. She stated: "Clinical correlation is necessary to provide a meaningful interpretation of the SPECT scan findings with respect to any individual case. If we interpret the SPECT scan findings seen here in a more general sense there is no clear indication of brain damage that would explain Mr. Gonzales reactions in the present offense. One has to be aware, however, that brain damage sufficient to cause serious behavioral aberrations can be quite subtle and not reveal themselves with the usual imaging techniques. This problem is particularly true where many small associational fibers are sheared. The sum total of the damage can result in loss of normal inhibitionary controls and in conjunction with the use of alcohol or other central nervous system depressants or stimulants can result in out-of-character impulsivity and aggression. Again clinical correlation of the individual case is necessary to provide a more definitive opinion."
Winkels report stated that defendant "is mildly cognitively impaired, suffers from moderate to severe chronic pain and has developed moderate to severe post-traumatic symptoms of depression. Neuroimaging evidence is not consistent with brain trauma. Mr. Gonzaless overall psychological functioning has become moderately impaired as a direct consequence of the trauma." Winkel also made the following observation: "It is possible that the assault was an instance of `frontal syndrome behavior, which can be characterized by emotional lability and disinhibition of behavior. In other words, a head injury, which very often results in impaired frontal lobe, `executive functioning, frequently leads to problems with affect and impulse control. The capacity to control emotional outbursts and the ability to consider consequences are typically impaired in cases of frontal lobe damage. Emotional and physical pain may have further eroded his ability to control his behavior. He might have been less able to control frustration and angry feelings because of brain injury and impairment."
Kaufmann submitted a declaration, dated March 31, 2006, in which he stated that he represented defendant from April 2004 until June 2005. He spent approximately 200 hours working on the case, and that "[t]his time included a substantial number of hours pursuing mental defense issues, including the ability to form specific intent."
McCleerey submitted declarations, dated April 11, 2006 and May 11, 2006, in which he stated that he reviewed the Thompson report and determined that there was not an issue as to defendants ability to form specific intent. McCleerey also spoke with Kaufmann about this issue. McCleerey did not receive Winkels report, but he spoke with Winkel prior to trial. Winkel told McCleerey that "he could not testify that Mr. Gonzales was mentally incompetent . . . nor could he say that there was a question concerning Mr. Gonzales `specific intent."
In June 2006, the trial court held a hearing on the motion for a new trial. Kaufmann testified that he had defendant report to the Amen Clinic as part of his preparation for trial. Kaufmann also educated himself about brain scans by consulting with Harvey Hyman, a civil attorney who works in the area of brain injuries, and Fithian. Based on his research and conversations with experts in the field, he decided not to proceed with a defense based on defendants head injury, because "it was becoming clear that one of the difficulties was linking Mr. Gonzaless brain injury to the . . . alleged criminal behavior." Kaufmann explained that "certain of the acts, as I recall, require specific intent and certain of the acts didnt. From a defense standpoint, I couldnt find a doctor — as a matter of fact, I believe theres a letter from Dr. Thompson pointing out the difficulty in correlation between the head injury and the mental state at the time the acts were committed. One of the other issues was that early in the evening in question Mr. Gonzales had apparently engaged in some behavior with one of the victims. And then later in the evening there was another victim. And the first behavior in my mind would have made it difficult to allege — to attack his mental state at the time he committed the acts with the second victim. [¶] The other thing was the ingestion of a large amount of alcohol during the evening and how that played into the — his mental state and his culpability at the time he committed the acts with both victims." Kaufmann spent a couple of hours discussing the case, including the possible defense issues, with McCleerey. He also conveyed all of the case material to McCleerey. As of the time that Kaufmann filed a conflict, he did not plan on calling any expert witnesses regarding the issue of defendants ability to form specific intent.
In addition, Kaufmann called Thompson about her comment that she could not make a full assessment without examining defendant. Kaufmann decided not to seek further testing of defendant, because Thompson "says the sum total of the damage can result in loss of normal inhibitionary controls. And in conjunction with the use of alcohol or other central nervous system depressants, which can result in an out-of-character impulsants and aggression. And [Kaufmann] felt that . . . the use of alcohol would have been a problem in presenting a defense based on the information that we had." Kaufmann also consulted with Fithian who felt that "it would have been highly speculative to think that there are any current tests that could have further bolstered the defense that at the time the brain injury was[] what caused the criminal behavior." Kaufmann never abandoned the possibility of further tests, because "it was obviously one of the big issues in the case. Its just that [he] kept kind of coming up with something that [he] could reach out at but never grab onto in terms of a defense."
McCleerey testified that he represented defendant at trial, and that he decided not to present a defense based on defendants head injury. Prior to making that decision he spoke with Kaufman "quite a bit," read Thompsons report, and spoke with Thompson and Winkel. McCleerey acknowledged that Winkels report referred to a possibility that defendants head injury would have affected his functioning. However, McCleerey specifically asked Winkel whether there was anything that he could tell him about whether defendant had the ability to form specific intent. McCleerey was "really digging for anything, anything which [he] could testify to which would be helpful." Winkel told him that he could not testify positively on this issue. McCleerey spoke with Kaufmann about the research that Kaufmann had done regarding defendants injury, and concluded that he would not present a defense based on psychiatric evidence. McCleerey was also aware that the Amen Clinic report was subject to a Kelly-Frye challenge, that the prosecution had disclosed the name of a forensic psychiatrist, who had been previously associated with the clinic and would testify regarding Thompsons report, and that the prosecution had discovered a report that concluded that defendant had not suffered a concussion. However, the fact that the prosecution would present expert testimony challenging a defense based on defendants head injury was not a determining factor in McCleereys decision. McCleerey did not remember much about his conversation with Thompson "other than the fact that there wasnt anything positive from it." McCleerey did not receive a copy of Winkels report prior to or during trial. McCleerey testified that he could not recall whether he considered having Thompson personally evaluate defendant. He did not consider having any further examinations or tests for defendant.
The People submitted the April 20, 2004 report of Dr. Claude Munday as an exhibit that was attached to their opposition to the new trial motion. Munday had examined defendant about a year and a half after defendants fall and less than five months before the charged offenses. He interviewed defendant and Anderson, and he reviewed several reports that assessed defendants condition. An MRI of defendants head on November 20, 2003 was normal. According to Munday, defendant did "not show any evidence of executive dysfunction and initiate[d] material adequately, and shift[ed] mental sets very well." With some reservations, Munday assumed that defendant had suffered a mild concussion, but he found "no convergence of [test] results to suggest the sorts of difficulties that typically flow from a concussion or minor traumatic brain injury."
Following argument, the trial court concluded that McCleereys representation met the standard of what a reasonably competent attorney would have done in the case, and denied the motion.
2. Analysis
A trial court may grant a motion for a new trial based on the ineffective assistance of counsel. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1148.) In order to prevail on this ground, the defendant must show that "counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms," (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma)), and that "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments." (Strickland, supra, 466 U.S. at p. 691.) In addition, "[c]ounsel may make reasonable and informed decisions about how far to pursue particular lines of investigation," and the defendant must show that counsel knew or should have known "further investigation might turn up materially favorable evidence." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1244 & 1252.)
A reviewing court will not reverse a trial courts order denying a new trial motion "unless a manifest and unmistakable abuse of discretion clearly appears." (People v. Delgado (1993) 5 Cal.4th 312, 328, internal quotation marks and citations omitted.
Defendant first points out that Fithian stated that trial counsel should obtain all of defendants medical records and the results of the MRI scan, yet McCleereys file contained only the reports of Thompson, Winkel, and Fithian. Though McCleerey did not obtain the results of defendants MRI scan, this test result was normal, and thus would not have assisted the defense. Moreover, Mundays report indicated that he had reviewed defendants medical records and he concluded that, even assuming defendant had suffered a concussion, he had not suffered any cognitive impairment as a result. Even assuming that a reasonably competent attorney would have obtained this information, defendant has failed to show prejudice.
Noting that Thompson indicated that if she were permitted to perform further tests and an examination of defendant, she might be able to provide testimony favorable to the defense, defendant next argues that McCleerey rendered ineffective assistance by failing to arrange for defendant to be tested and evaluated by Thompson. However, Fithian, who had personally examined defendant, told Kaufmann that it was "highly speculative" that further testing would help to establish that defendants criminal behavior was the result of a brain injury. McCleerey consulted both Kaufmann and Thompson regarding their views of defendants condition. Based on this record, a reasonably competent attorney would have concluded that further testing and an examination by Thompson were not warranted.
Defendant also claims that McCleereys testimony regarding his conversation with Winkel regarding a potential defense was "plainly contradicted" by Winkels written report. This characterization of the record is not accurate. Nowhere in Winkels report does he indicate that he could provide testimony that would have been helpful to the defense. McCleerey acknowledged that Winkels report referred to a possibility of impaired cognitive functioning. However, McCleerey specifically asked Winkel whether he could testify regarding defendants ability to form specific intent, and Winkel could not testify positively on this issue.
Defendants claim that McCleerey "contemplated essentially no defense strategy beyond standing idly by as the prosecution presented its case" has no merit. Trial counsel focused on the following weaknesses in the prosecutions case: Sarah did not seek help at the gas station, thus indicating the consensual nature of the conduct; the prosecution did not test the hair in defendants Jeep, which they claimed was Sarahs; Sarahs motive for lying about defendants conduct; medical evidence indicated that defendant engaged in oral copulation, not sexual intercourse, thus supporting defendants version of events; defendants intoxication precluded a finding of specific intent; neither the apartment complex nor the area near Hitchcock Road was isolated; Ellen sustained her injuries when she fell, not because defendant assaulted her; the photographs of Ellen indicated that some of her injuries occurred prior to her encounter with defendant; and Ellens testimony was not accurate because she was under the influence of drugs.
In conclusion, defendant failed to establish ineffective assistance of counsel. McCleereys investigation of a possible psychiatric defense indicated that no expert witness would have testified that defendant suffered from some mental disease, defect, or disorder that precluded him from actually forming the mental state required for each specific intent crime, and thus his representation did not fall below an objective standard of reasonableness. Defendant also did not show that McCleerey knew or should have known that further investigation would have produced such evidence. Based on this record, the trial court did not abuse its discretion in denying the motion for a new trial.
B. CALJIC No. 17.41.1
Defendant challenges the validity of CALJIC No. 17.41.1. Defendant argues that this instruction interfered with his rights to due process and a fair trial. (U.S. Const., 6th & 14th Amends.) His argument is foreclosed by the California Supreme Court case of People v. Engelman (2002) 28 Cal.4th 436. In Engelman, the court disapproved of the use of CALJIC No. 17.41.1, but found that "the giving of the instruction did not constitute constitutional error." (Id. at p. 444.) We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
C. Section 667.6, Subdivision (d)
Defendant contends, and the People concede, that the trial court erred in imposing a full consecutive term of six years on count six (§ 220) pursuant to section 667.6, subd. d).
At the time of defendants offenses, section 667.6, subdivision (d) stated in relevant part: "A full, separate, and consecutive term shall be served for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions."
"A defendant whose current conviction is for violation of section 220 may be sentenced under section 667.6, subdivision (d) only if he suffered a prior conviction under section 220." (In re Rodney (1999) 73 Cal.App.4th 36, 40.)
Here, there is nothing in the record to indicate that defendant had suffered a prior conviction under section 220. Thus, section 667.6, subdivision (d) did not authorize the trial court to impose a full, separate, and consecutive term for count six.
Defendant requests that this court modify his sentence on count six from six years to a subordinate one-third midterm of one year and four months. The People submit that the appropriate remedy is to remand for resentencing to allow the trial court to reassess the entirety of that portion of defendants sentence that arises under the determinate sentencing law. (People v. Burns (1984) 158 Cal.App.3d 1178, 1183-1184; People v. Savala (1983) 147 Cal.App.3d 63, 68-69 (Savala), disapproved on another ground in People v. Foley (1985) 170 Cal.App.3d 1039, 1044; see also People v. Sanchez (1991) 230 Cal.App.3d 768, 772.) We agree with the court in Savala that a defendants aggregate prison term under the determinate sentencing law "cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence. . . . [¶] . . . [¶] In making its sentencing choices in the first instance the trial court undoubtedly considered the overall prison term to be imposed . . . . When defendant successfully urged the illegality of his sentence on appeal the illegality did not relate only to a portion of the sentence but infected the whole." (Savala, at pp. 68-70.) Accordingly, we remand the matter for resentencing.
D. Other Sentencing Issues
For the guidance of the trial court on remand, we will address defendants other sentencing issues.
1. Section 654
Defendant argues that the trial court violated the prohibition against multiple punishment under section 654 when it imposed separate sentence terms for count one (kidnapping of Ellen with intent to commit rape), count two (attempted voluntary manslaughter of Ellen), and count three (assault on Ellen with intent to commit rape).
Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Thus, "[s]ection 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) Whether multiple offenses are incident to one objective "`depends on the intent and objective of the actor." (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The trial courts determination that a defendant maintained multiple criminal objectives is a question of fact which must be upheld if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Where a term is prohibited under section 654, the proper procedure is to impose and stay sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
Here, the jury found that defendant kidnapped and assaulted Ellen with the intent and objective to rape her. However, the evidence also establishes that defendant had another intent and objective in assaulting Ellen, that is, to perform oral copulation upon him. When they were in the Jeep, he told her to orally copulate him. He also made the same demand when he held her on the ground and was choking her. The trial court could reasonably have found that one of defendants objectives during the assault, forcible oral copulation, was independent of his objective in kidnapping Ellen, that is, to rape her. Thus, there was no error in the imposition of separate sentence terms for the kidnap and the assault.
We next consider whether defendants convictions of assault with intent to commit rape and attempted voluntary manslaughter were incident to one objective. While strangling Ellen and beating her head on the ground, defendant told her that he would release her if she would give him oral sex. However, when he let go of her, she continued to struggle against him. Defendant then chased her and ripped off her clothing. As previously stated, defendants intent and objective in committing this assault was forcible oral copulation and rape. However, defendants subsequent conduct indicated a separate intent and objective, which was to kill her. Defendant dragged Ellen into a ditch where he continued to strangle her, hit her head on the ground, and pushed her face into the water. Based on this evidence, the trial court could reasonably conclude that defendant had abandoned his objective of forcible oral copulation and rape. Thus, the trial court did not err under section 654.
2. Imposition of Upper Terms and Consecutive Terms
Relying on Cunningham v. California (2007) 549 U.S. ___ (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant argues that the trial court erred by sentencing defendant to upper terms on counts three and six, because the facts upon which those terms were based were neither found true by the jury beyond a reasonable doubt nor admitted by defendant.
When the trial court imposed the upper term for count three (assault on Ellen with the intent to commit rape), it cited the following facts relating to the offense as factors in aggravation: defendant threatened to kill Ellen; and the crime involved great violence and disclosed a high degree of cruelty. When the trial court imposed the upper term for count six (assault on Sarah with the intent to commit rape), it cited the following facts relating to the offense as factors in aggravation: the crime involved a degree of cruelty and callousness; Sarah was particularly vulnerable, because defendant groomed her through the Internet, provided her with liquor, and took her to an isolated area after leaving the apartment; and the crime was premeditated, since he developed an Internet relationship with her and took her to a vacant apartment that he had selected in advance. The trial court also stated the following facts relating to defendant as factors in aggravation: defendants violent conduct toward both victims indicated a danger to society; defendants prior convictions were increasing in severity; defendant was on probation when the present offenses were committed; and defendants prior performance on probation was poor. The trial court identified the following factor in mitigation: defendants mental condition may "to some extent give some explanation to the very vicious and callous offenses that were committed." After finding that the aggravating factors outweighed the factor in mitigation, the trial court imposed the upper terms for both counts.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490.) In that case, the court focused on "the narrow issue" of whether the sentence for a single crime exceeded the statutory maximum. (Id. at p. 474.) The court further defined the statutory maximum in Blakely, supra, 542 U.S. 296. It concluded "that the `statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant `statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." (Id. at pp. 303-304.)
In Cunningham, supra, 549 U.S. ___ , the United States Supreme Court held that Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments" to the extent that it allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Id. at p. 860.) Thus, the trial court may impose the upper term only if the factors relied upon meet the requirements of Apprendi and Blakely. (See id. at p. 871.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court held that "if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, . . . the upper term sentence is the `statutory maximum." (Id. at p. 813.) An aggravating circumstance accords with Cunningham and Blakely if it was based on the defendants criminal history. (Id. at p. 818.) The court explained that this factor encompasses "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. [Citation.] [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness [citation] require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense." (Id. at pp. 819-820, fn. omitted.) Relying on the probation report, the Black II court then held that the defendants criminal history was an aggravating circumstance that met Sixth Amendment requirements, thereby rendering him eligible for the upper term sentence. (Id. at p. 820.) Accordingly, here the trial court may sentence defendant in accordance with Black II on remand.
Relying on Apprendi, Blakely, and Cunningham, defendant also argues that the trial court erred by imposing consecutive terms on counts two, six, seven, and eight.
In Black II, the California Supreme Court discussed the applicability of Blakely and Cunningham principles to the trial courts decision to impose consecutive terms, stating: "In our prior decision in this case, we rejected this argument by defendant, concluding that a `jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. (Black I, supra, 35 Cal.4th at p. 1263.) Cunningham did not address the question whether the principles established in Blakely apply to consecutive term sentences under section 669. [¶] Cunningham, however, does not undermine our previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. In Black I we explained that `Blakelys underlying rationale is inapplicable to a trial courts decision whether to require that sentences on two or more offenses be served consecutively or concurrently. . . . (Black I, supra, 35 Cal.4th at pp. 1262-1263.)" (Black II, supra, 41 Cal.4th at p. 821.) The court also stated: "The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a `sentencing decision [] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not `implicate [] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts." (Id. at p. 823.)
This court is bound by the holding in Black II that there is no constitutional right to a jury trial regarding the facts underlying a trial courts decision to impose consecutive sentence terms for multiple offenses. (Auto Equity, supra, 57 Cal.2d at p. 455.)
E. Abstract of Judgment
The parties agree that there are several errors in the abstract of judgment. Though we have remanded the matter for resentencing, we note these errors for the benefit of the trial court. The abstract of judgment should be amended to reflect: (1) the crime described for count two is attempted voluntary manslaughter (§§ 664/192, subd. (a)); (2) the crime described for count five is assault by means of force likely to produce great bodily injury; (3) the crime described for count nine is lewd act upon a child of 15 years of age; and (4) the crime described for count 10 is false imprisonment (§ 236). Any reference to renumbered count 11 should be deleted from the abstracts list of felonies of which defendant was convicted. The appropriate place to enter information regarding count 11 is item 11 of the abstract, which is entitled "other orders." This section should include an entry stating that the jury found defendant guilty of possession of child pornography (§ 311.11, subd. (a)) in count 11, as renumbered. Item 11 should also indicate that the trial court sentenced defendant to serve 365 days in county jail, with credit for 365 days.
III. Disposition
The judgment is reversed, and the matter is remanded for resentencing.
We Concur:
Bamattre-Manoukian, Acting P.J.,
McAdams, J.