Filed 12/21/17 P. v. Briones CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ISAI MONTES BRIONES,

Defendant and Appellant.


G053152

(Super. Ct. No. 14HF2206)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Lynne G. McGinnis, Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant, Isai Montes Briones, of sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); count 1) and lewd act upon a child under the age of 14, with a true finding of substantial sexual conduct (masturbation) (§§ 288, subd. (a), 1203.066, subd. (a)(8); count 2). The court sentenced defendant to a prison term of 28 years to life.
During closing argument, defendant conceded count 2. On count 1, defendant’s sole contention at trial was no penetration occurred during his sexual relations with the seven-year-old victim. On appeal, defendant does not challenge the sufficiency of the evidence on either count. Instead, defendant’s sole contention on appeal is his counsel rendered ineffective assistance in failing to object to certain of the prosecution’s questions and during counsel’s closing argument. We need not reach defendant’s contention his trial counsel’s performance was deficient, because he has not demonstrated prejudice. Accordingly, we affirm.

FACTS

Defendant and his family lived in one bedroom of a three-bedroom apartment. The victim’s family lived in another room, and defendant’s son’s babysitter lived in the third room. Defendant’s wife and the victim’s father are cousins. The victim referred to defendant as her godfather.
The victim testified at trial. She said defendant called her into his bedroom to play with his son. After she entered the room, defendant locked the door. Defendant told the victim to pull down her pants. The victim did not want to, but she complied because she thought defendant was going to hit her. Defendant touched the victim’s genitalia with his hand. He then had her lie down on his bed. He had her open her legs. The victim testified four separate times over the course of her testimony that defendant put his penis inside her:
“Q. Did he put his private part inside your private part?
“A. Yes.
“Q. Is that when he put his penis inside of you?
“A. Yes.”
“Q. Okay. Let me ask you, when you were lying down is that when he put his pee-pee inside of you?
“A. Yes.”
“Q. And after he had you lie down and told you to open your legs that’s when he stuck his pee-pee in you, or is that when he touched you with his hands?
“A. When he put his pee-pee.”
The victim testified it hurt “when he put his private part inside [her] private part.” She said she told defendant it hurt. However, the victim was lying down on the bed looking at the ceiling, so she did not know if defendant’s penis or finger made her hurt. The doorbell rang, and defendant told the victim not to tell anyone. He said to start playing with his son. The victim put her pants back on. When her parents returned, the victim did not tell them or the live-in nanny because she was too scared.
After police arrested defendant for another crime, the victim told her parents what defendant did. In a pretrial interview conducted by the Child Abuse Services Team (CAST), the victim clearly stated defendant put “his part to go pee” inside her. She stated, “He put it in me.” Later she said, “And then he put his thing in, but it didn’t fit.” The CAST interview transcript was admitted into evidence, and the CAST video was played for the jury.
Investigator Lizeth Henriquez and another investigator interviewed defendant. Defendant repeatedly denied improperly touching the victim. After investigators claimed they found his DNA on the victim’s vagina, defendant admitted he touched her once on her private part. He said the victim wanted to touch him. He said she was seated on the bed, and she took down her pants and told him to “put that thing on me,” referring to his penis in her vagina. He said he did not penetrate her but only “put it there.” He said he touched her vagina with his penis for about 20 to 30 seconds. He then realized what he was doing was wrong, he stopped, and he sent the victim out of his room.
Later in the interview defendant admitted he took down the victim’s pants. He also admitted to taking down his own pants. His penis was erect and wet. He admitted he tried to put his penis inside, but it did not go in. He told the interviewers, “I did put it there. It did not go in; right? No, it did not go in and . . . that’s good, thank God it did not go in. No, no, I did not do more harm.”
The investigators told defendant his wife had set up a video camera in his bedroom because she believed he was unfaithful. They told him they watched the video and defendant was lying. Although defendant did not believe his wife set up a camera, the investigators asked defendant to write a letter of apology to his wife, and he did. The transcript of defendant’s interview was admitted into evidence, and the jury also viewed the video of his interview.
Henriquez testified at trial and admitted engaging in a ruse by telling defendant there was DNA, a hidden video camera in the bedroom, and a tear in the victim’s hymen during the interview. She explained this is a legal technique to try to get honest responses from subjects. Henriquez testified in this case the ruse elicited honest answers from defendant.
Forensic Nurse Leanne Heiland testified she conducted a sexual assault exam on the victim. Although the victim had no signs of injury, the lack of injury did not mean defendant did not penetrate the victim. In Heiland’s experience, fewer than 10 percent of molested children have any type of injury. The following ensued between the prosecutor and Heiland during Heiland’s direct testimony before the jury:
“Q. And let me give you a hypothetical. Let’s assume that an individual states that he put his erect penis in between the lips of a seven-year-old girl and moved his penis while in between those lips for 20 to 30 seconds from side to side. Could that cause, or would that cause penetration of the labia majora?
“[DEFENSE COUNSEL:] Your honor, that’s vague.
“THE COURT: Overruled.
“[THE WITNESS:] It may or may not.
“[THE PROSECUTOR:] Q. And why do you say may or may not?
“A. Because you can rub the skin on the outside of the genitalia without actually penetrating.
“Q. And what if I add to that hypothetical the victim, the seven-year-old girl, states that when this penis was inside of her it hurt her. It hurt her inside?
“A. If there was a hurting sensation, most likely the penetration was closer to the hymen and not just on top of the skin.
“Q. So if a seven-year-old is describing pain to the inside of her genitalia, it’s most likely then penetration has gone beyond the labia majora?
“A. Correct.
“Q. Beyond the labia minora and up to the hymen?
“A. Yes.”
On redirect, the prosecutor revisited the hypothetical, and the following colloquy ensued:
“[THE PROSECUTOR:] Q. Going back to my hypothetical where the victim in this case, seven-year-old [prosecutor uses victim’s name] was indicating pain, you said that that was most likely indicative of penetration up into the hymen?
“A. Correct.
“Q. And I failed to ask the follow-up question, and I apologize. Why is that?
“A. That area is highly sensitive on a child so if she said there was pain, most likely it was through the labia up to the recessed hymen.”
During his closing argument, defense counsel made several arguments to which defendant objects on appeal, including: “And actually [defendant] said it during the video, that he was ashamed. He felt he was a monster. In my eyes he’s probably a monster, but he didn’t penetrate her.” “I’m not excusing [defendant]. I’m not trying to make him more likable. “He’s not a likable person. We all want to see him punished. I want to see him punished for what he did.” “And, once again, please do not think I’m trying to excuse him. Like I told you, I don’t like him. I’ve got kids. But this is what we do. We, [the prosecutor] and I, defend the constitution. And that’s what I’m doing here.” “Again, I‘m going to agree with [defendant]. He’s a monster. There’s no reason for him to be convicted of a crime he didn’t do. I just gave you reasonable doubt on a platter.” “The police are there to do a job. What is their job? Catch crooks? Monsters like him? Yeah. That’s their job. Sometimes they, in their zeal to get a person, they may overstep their boundaries, but that didn’t happen here. That didn’t happen.” “We want to convict him of something. We want to send him away. I want to see him punished too, but, like I said, the prosecutor and I here defend the constitution. We make sure he gets a shot at fairness. He deserves it. [¶] There’s no exclusion under the constitution to say monsters don’t get fair deals. They don’t get fair trials. They don’t get attorneys. They don’t say that. Even that monster over there deserves open mindedness, deserves you going back there and investigate those promises [the prosecution] made to you.” “I need coffee, so it was a pleasure talking to you. It’s a horrible crime. So don’t think that I condone what he did. We all have kids. We were all kids. We need protection when we’re kids.”

DISCUSSION

Defendant argues his trial counsel was ineffective in (1) failing to object to the prosecutor’s use of a hypothetical that mentioned the victim’s name and allowing Forensic Nurse Heiland to opine on whether penetration occurred; (2) failing to object to Police Officer Henriquez’s ruse tactics; and (3) during closing argument, referring to defendant as a monster, arguing he did not like defendant, and telling the jury his job was to defend defendant under the constitution.
“Defendant bears the burden of proving ineffective assistance of counsel.” (People v. Haskett (1990) 52 Cal.3d 210, 248.) The benchmark for evaluating a claim of ineffective assistance is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) A defendant alleging ineffective assistance of counsel must meet a two-pronged test: (1) defendant must show counsel’s performance was deficient and; (2) defendant must show he was prejudiced by the deficient performance. (Id. at p. 687.) Appellate review of defense counsel’s performance is a deferential one, and this court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Id. at p. 689.)
To establish prejudice, the accused must show a reasonable probability — sufficient to undermine confidence in the outcome — that, but for the allegedly deficient performance, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 693-694.) The test “must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated.” (People v. Watson (1956) 46 Cal.2d 818, 837.) Further, “[a] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, at p. 697; id. at p. 691 [“An error by counsel, even if professionally unreasonable, does not warrant setting aside a judgment of a criminal proceeding if the error had no effect on the judgment”]; see People v. Camino (2010) 188 Cal.App.4th 1359, 1377 [court need not address both components of ineffective assistance inquiry if defendant makes insufficient showing on one].)
In this case we need not decide whether counsel’s performance was deficient, because defendant has not demonstrated prejudice. Defendant argues prejudice should be presumed or alternatively, that the cumulative impact of counsel’s deficiencies establishes prejudice. We disagree.
The jury was instructed that sexual intercourse means “any penetration, no matter how slight, of the vagina, labia majora or genitalia by the penis.” The instruction is consistent with case law. (See People v. Mendoza (2015) 240 Cal.App.4th 72, 79 [“sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis” (italics added)]; see People v. Dunn (2012) 205 Cal.App.4th 1086, 1097 [penetration of labia majora is sufficient; penetration of vagina not required].)
The minor victim’s testimony alone establishes penetration occurred. She testified no less than four times during her trial testimony in words to the effect defendant placed his penis inside her. Consistently, she stated the same twice during her CAST interview, the video of which was played for the jury. She did not specify for the jury whether penetration was to her vagina, labia majora or genitalia. Nevertheless, the jury determined the victim’s testimony he was “inside” her meant it occurred in one of these three ways. The jury credited the victim’s testimony. When she was finished testifying in court, one juror blurted out, “Can we clap?”
Moreover, the defendant’s admission of bad conduct, even if not admitting to penetration, comes close to corroborating the victim. He admitted to taking down his own pants and the victim’s pants. His penis was erect and wet. Defendant admitted he placed his penis on the victim’s vagina for 20 to 30 seconds. He also admitted he tried to put his penis inside the victim, but it would not go in. We are struck by the consistency between the victim’s and defendant’s testimony in this regard. While defendant said his penis would not go in, the victim said defendant “put it in me” but it did not fit. From this testimony, the jury may have reasonably concluded penetration was to the labia majora or genitalia; the law does not limit penetration to vaginal penetration where “the fit” might become an issue.
None of defendant’s testimony undermines the victim’s account of his actions. Notably, defendant also lied during his interview when he repeatedly denied improperly touching the victim. And defendant tried to explain away his behavior by saying the victim took down her pants and told him to “put that thing on me.” The jury was provided with the transcript of defendant’s interview and viewed the video. Confronted with this evidence, it is not surprising the jury chose not to believe defendant.
Finally, neither the prosecutor’s bad hypothetical to an expert, an interviewer’s ruse tactics, nor defense counsel portraying his client as a monster, is likely to have overcome the victim’s direct testimony of the actual conduct at issue here. None of the alleged deficiencies in defense counsel’s performance undermine the victim’s testimony and CAST interview. Therefore, even assuming defense counsel’s performance was deficient, defendant has not shown but for the allegedly deficient performance the result would have been different. (Strickland, supra, 466 U.S at pp. 693-694.)

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:




BEDSWORTH, ACTING P. J.



FYBEL, J.