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P. v. Burgos CA1/5

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P. v. Burgos CA1/5
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05:11:2022

Filed 4/5/22 P. v. Burgos CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

NORMANDIE SANTOS BURGOS,

Defendant and Appellant.

A158271 / A159457

(Contra Costa County

Super. Ct. No. 5-172252-9)

A jury found Normandie Santos Burgos guilty of committing multiple sex offenses against two minors. He contends that his attorney violated his Sixth Amendment rights by conceding his guilt for some of the offenses over his objection. In addition, he asserts that the convictions on several counts cannot stand because they were lesser included offenses of other counts for which he was also convicted. We disagree with his Sixth Amendment argument, but we find merit in his point about the lesser included offenses. We reverse the convictions on the relevant counts but otherwise affirm.

Background

The People charged Burgos with 60 sex offenses involving John Doe One and John Doe Two, youths who were students at Burgos’s tennis academy. The charges included forcible sodomy upon a minor (Pen. Code, § 286, subd. (c)(2)(C))[1]; sodomy upon a minor (§ 286, subds. (b)(1), (b)(2)); forcible oral copulation upon a minor (former § 288a, subd. (c)(2)(C), renumbered effective January 1, 2019 as § 287, subd. (c)(2)(C) (Sen. Bill No. 1494 (2017-2018 Reg. Sess.)), Stats. 2018, ch. 423, § 49); oral copulation of a minor (former § 288a, subds. (b)(1), (b)(2), renumbered effective January 1, 2019 as § 287, subds. (b)(1), (b)(2)); and lewd conduct upon a minor (§ 288, subd. (c)(1)).

At trial, John Doe One and John Doe Two each provided detailed testimony that Burgos, their tennis coach, touched them sexually and pressured them into engaging in sex acts with him beginning when they were 14 years old. Burgos intimated there would be consequences if they refused him, such as withholding mentorship or coaching, tennis equipment, plane tickets for tennis tournaments, lessons, or practice time. According to John Doe One, Burgos treated him more harshly or critically during practice when he refused to engage in sexual acts with him.

The prosecution also presented evidence obtained when, with the help of police, John Doe One wore recording devices during meetings with Burgos. In a video recording played for the jury, after John Doe One brought up their sexual relationship, Burgos said their relationship was not about the sex, but the chemistry was right between them and the “intensity level was so awesome.” John Doe One asked if he was the only one that Burgos had sex with, and Burgos replied, “[y]eah.” John Doe One told him, “I want to have that good sex back. I really – really miss that.” Burgos responded, “[y]eah me too.” After John Doe One said that “what made the sex so great” was that they were “connected perfectly,” Burgos replied, “[w]ell I’m pretty good too.” John Doe One said, “I really liked . . . when I was inside of you. I really, I mean, that’s when I felt the deepest connection. I mean, is that?” Burgos responded, “[y]eah.” Burgos added, “I let you do stuff to me that I don’t let anybody do to me.”

When Burgos testified, his attorney did not ask him whether he touched John Doe One sexually or had sex with him. On cross examination, however, Burgos denied having sex with John Doe One or touching him sexually. With respect to the recorded conversation with John Doe One, Burgos testified that he responded “yeah” to John Doe One’s questions because he felt intimidated and was raised to avoid conflict.

Burgos testified that he never touched John Doe Two’s genitals, he never performed oral sex on him, and he never tried to place John Doe Two’s hand on Burgos’s penis. Burgos never threatened to cut off lessons with John Doe Two if he did not submit to sex acts with him. He likewise denied threatening to cut off tennis opportunities for John Doe One if he refused to have sex with him. Due to his hemorrhoid condition, Burgos had not been sexually active since 2010 (prior to the time span of the charges).

The jury returned guilty verdicts on all charges. The trial court imposed a sentence of 255 years to life in state prison.

In appeal number A158271, Burgos argues his convictions should be reversed. In appeal number A159457, he appeals the trial court’s subsequent order that he pay restitution of $100,000 to each victim and $3,159 to the Victims’ Compensation Board. The two appeals are consolidated. We grant Burgos’s unopposed motion in appeal number A159457 to take judicial notice of the record in appeal number A158271. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

Discussion

A.

Under McCoy v. Louisiana (2018) 584 U.S. ___, ___ [138 S.Ct. 1500, 1506-1507] (McCoy), a defense attorney may not concede her client’s guilt when the client has instructed the attorney not to do so. Burgos argues his attorney violated McCoy by conceding that he engaged in sexual activity with John Doe One. We find no error.

1.

In his opening statement, Burgos’s attorney did not deny that Burgos had sex with John Doe One and did not offer any specific argument that the prosecution’s evidence failed to establish that Burgos committed the non-forcible sex offenses. However, the attorney also did not explicitly concede that Burgos was guilty. Rather, he focused on refuting the prosecution’s case that Burgos had committed forcible sex crimes against John Doe One, which carried the most severe penalties.

In so doing, the attorney referred to John Doe One’s allegations as “facts” and, in multiple instances, failed to use words like “alleged” to qualify his discussion of the prosecution’s evidence. For example, he stated, “[e]ssentially what this case is going to show you is that [John Doe One] . . . had sex with Mr. Burgos in exchange for real and tangible benefits.” Although he did not qualify every reference to the prosecution’s evidence, he did preface his summary of that evidence by explaining that “I’m starting with some examples of things you’re going to hear from” John Doe One. He was discussing “what [John Doe One] claims happened between himself and Mr. Burgos.” He later repeated that “this is all according to [John Doe One’s] own statements.”

The attorney stated that the jurors will “have the option of deciding . . . of course, has the evidence proved anything at all but, ultimately, has the evidence proved beyond a reasonable doubt . . . the elements of forcible sex crimes . . . and if you find that they have not, you will have the option of finding that Mr. Burgos, you know, committed non-forcible versions of exactly the same act.” At the end of his opening remarks, he told the jury: “So that’s a little outline, ladies and gentlemen, of the facts you’re going to hear and the law that applies to them and at the end of this case, I’m going to come back and give you my explanation in the closing argument of why it is that Mr. Burgos is not guilty and ask you to return those verdicts.”

After the opening statements and outside the presence of the jury, the court raised the McCoy issue. The court noted that although counsel did not explicitly say Burgos was guilty of non-forcible sex offenses, jurors may have thought that he implied it. The court said this was a “totally rational strategy,” but it wanted to determine for the record whether Burgos and his attorney had discussed the strategy and whether Burgos agreed with it. The attorney said he had discussed it at length with Burgos, and, while Burgos does not concede guilt to any charge, “he knows the strategy, [and] he agrees with the strategy.”

The court then spoke directly with Burgos. It did not mince its words. The court explained that, in its view, while his counsel did not concede guilt expressly, the jury may have understood that Burgos was contesting only the charges that require force, and not the charges that do not require force. The court emphasized that he (Burgos) is entitled to make the decision whether to concede guilt, not his attorney. The court asked whether Burgos had discussed the strategy with his attorney and agreed to it.

Burgos confirmed he understood how the jury might have construed the opening statement, and he was not willing to concede guilt, “[b]ut I do agree with [counsel’s] strategy.” As the discussion progressed, Burgos asked the court whether it was possible for his attorney to “clarify” that he is not conceding guilt. The court said that they would not redo the opening statements but that counsel would be able to clarify it later, such as in his closing argument.

Accordingly, defense counsel began his closing argument with an unequivocal statement that “Burgos is not guilty of any of these crimes. His plea of not guilty is a complete denial of the truth of the charges. [Burgos] testified under oath that he had no sexual touching of either of the accusers. So that’s a starting point. He didn’t do any of this.” Counsel then argued that “there are a number of reasons to doubt the v[e]racity of what the evidence is that you’ve heard about any sexual touchings at all,” and he methodically went through the reasons one by one.

Although defense counsel proceeded to focus on the argument that the prosecution had not met the elements for the forcible sex charges, he explained that the argument was a fallback position: “even if in this case you reach the point of accepting as true every factual assertion that they made, you still have to decide if what they described is a forcible sex crime, okay?” Counsel emphasized it was ultimately up to the jury to decide whether “to accept all [of] what [John Doe One and John Doe Two] said or some of what they said or none of what they said.”

2.

The Sixth Amendment protects a criminal defendant’s right to maintain his innocence or to concede his guilt. (McCoy, supra, 584 US at p. ___ [138 S. Ct. at p. 1508.]) “Defense counsel can make strategic choices regarding how best to achieve a defendant’s objectives, but the defendant chooses those objectives.” (People v. Frederickson (2020) 8 Cal.5th 963, 993.) Once a defendant instructs his attorney to assert innocence, the attorney cannot override that objective by conceding guilt. (McCoy, supra, 584 U.S. at p. ___ [138 S. Ct. at p. 1509].)

But there is no McCoy issue unless the record demonstrates that, having discussed the client’s objective of maintaining innocence, the attorney then overrides it. (See In re Smith (2020) 49 Cal.App.5th 377, 388 (Smith).) There is no categorical constitutional bar on an attorney conceding a defendant’s guilt. (Florida v. Nixon (2004) 543 U.S. 175, 178.) Counsel is obligated to consult with the client on important tactical decisions such as a concession but is not required to obtain the client’s express consent. (Id. at pp. 187, 189.) The defendant must communicate his objective to his counsel. (McCoy, supra, 584 U.S. at p. ___ [138 S. Ct. at p. 1509]; People v. Franks (2019) 35 Cal.App.5th 883, 891.) He must do so before counsel makes the concession. (Smith, supra, 49 Cal.App.5th at pp. 389-390.) We note, moreover, these cases can present subtle situations, such as a partial or implied concession. If the record does not show that the defendant expressed to counsel his disagreement with such a strategy, the reviewing court has no basis to find that counsel overrode the defendant’s objective. (See ibid.; People v. Villa (2020) 55 Cal.App.5th 1042, 1055-1056.)

This is where Burgos’s argument founders. The trial court candidly explained to Burgos that, in his opening statement, his attorney appeared to concede, at least impliedly, that Burgos had sexual contact with John Doe One as counsel focused on a fallback argument that Burgos used no force. The court specifically asked Burgos and his attorney if they had discussed this strategy in advance and if Burgos agreed to it. Both said that they had discussed it and that Burgos did agree to it. Burgos then added that he wanted his attorney to clarify more explicitly that he is innocent of all charges, and the attorney did so in his closing argument. We have no basis to find a disagreement between Burgos and his attorney when, in fact, both of them reassured the trial court that they were on the same page.

The real problem here is the inherent tension in Burgos’s strategy, which simultaneously asserted his innocence (no sex at all) and a fallback argument (if there was sex, it was consensual). By its nature, the fallback argument undercut his claim to innocence. Particularly given the recorded conversation in which Burgos admitted having sex with John Doe One, the approach made sense. But having told the trial court that he discussed and approved this strategy, Burgos cannot now argue otherwise. We find no McCoy error.

B.

Burgos contends that counts 32, 34, 36, 38, 40, and 42 must be reversed because they were lesser included offenses of the charges in counts 31, 33, 35, 37, 39, and 41, respectively. We agree.

A defendant may not be convicted of two charged offenses arising out of a single act or course of conduct if one offense is a lesser included offense of the other. (People v. Ramirez (2009) 45 Cal.4th 980, 984.) To determine whether multiple convictions are precluded because one charged crime is a lesser included offense of another, we apply the “ ‘elements’ ” test. (Id. at p. 985.) Under this test, “[w]e inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (Ibid.) When a defendant has been convicted of both a greater and a lesser offense, the conviction for the lesser included offense must be set aside. (People v. Lopez (2020) 9 Cal.5th 254, 270.)

Here, there is no dispute that counts 32, 34, 36, 38, 40, and 42 each arose out of the same occurrence charged in counts 31, 33, 35, 37, 39, and 41, respectively.

Counts 32, 34, 36, and 38 each allege acts of sodomy “with another person who is under 18 years of age” (Pen. Code, § 286, subd. (b)(1)). The corresponding charges of forcible sodomy, counts 31, 33, 35, and 37, each allege sodomy “with another person who is a minor 14 years of age or older,” without consent and “by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury.” (Pen. Code, § 286, subd. (c)(2)(C).) “[A] minor 14 years of age or older” is a person aged 14 to 17 years old. (See People v. Yuksel (2012) 207 Cal.App.4th 850, 853 [“California defines a ‘minor’ as a person not of the age of majority, which is 18 years old.”]; see also, e.g., Fam. Code, § 6500 [“A minor is an individual who is under 18 years of age.”]; Pen. Code, § 261.5, subd. (a) [same].) Thus, commission of the offense of forcible sodomy (Pen. Code, § 286, subd. (c)(2)(C)) also violates the prohibition against non-forcible sodomy (Pen. Code, § 286, subd. (b)(1)) because forcible sodomy with a person aged 14 to 17 years old would necessarily include an act of sodomy with a person under age 18. (Cf. People v. Woods (2015) 241 Cal.App.4th 461, 475 (Woods) [accepting the People’s concession that non-forcible oral copulation of a person under 18 years of age is a lesser included offense of forcible oral copulation of a minor aged 14 or older]; People v. Chan (2005) 128 Cal.App.4th 408, 421 (Chan) [lewd conduct on a child without force is a lesser included offense of lewd conduct on a child by means of force].) Thus, Burgos is correct that sodomy with another person under age 18 is a necessarily included offense of forcible sodomy with a minor age 14 or older, and his convictions on counts 32, 34 36, and 38 must be reversed

For the same reasons, the convictions on counts 40 and 42 must be reversed because they are lesser included offenses of counts 39 and 41. Counts 40 and 42 allege oral copulation of a person under age 18 (former § 288a, subd. (b)(1), now § 287, subd. (b)(1)). Counts 39 and 41 alleged forcible oral copulation of a minor aged 14 or older (former § 288a, subd. (c)(2)(C), now § 287, subd. (c)(2)(C)). Forcible oral copulation of a minor aged 14 or older necessarily includes oral copulation of a person under age 18. (Woods, supra, 241 Cal.App.4th at p. 475; cf. Chan, supra, 128 Cal.App.4th at p. 421.)

The People rely on People v. Scott (2000) 83 Cal.App.4th 784, 795 (Scott), but that case is inapposite. Scott held that a non-forcible sex offense committed by a person 21 years or older with a person under the age of 16 was not a lesser included offense of a forcible sex offense that could be committed by a perpetrator of any age against a person of any age. (Id. at pp. 794-795 & fn. 4.) Under those circumstances, unlike in the instant case, commission of the forcible sex offense did not necessarily include commission of the nonforcible sex offense. (Id. at pp. 794-795.)

Accordingly, we reverse the convictions on counts 32, 34 36, 38, 40, and 42.[2]

C.

Finally, in case number A159457, Burgos appeals from the trial court’s restitution order. He contends that if this court reverses his convictions based on McCoy error, the restitution order should be reversed. As Burgos concedes, we need not address this argument given our disposition of his appeal in case number A158271.

Disposition

In case number A158271, the judgments of conviction as to counts 32, 34, 36, and 38 (§ 286, subd. (b)(1)) and counts 40 and 42 (former § 288a, subd. (b)(1)) are reversed. Upon issuance of the remittitur, judgments of dismissal shall be entered as to those counts. In all other respects, the judgment is affirmed. In case number A159457, the judgment is affirmed.

_______________________

BURNS, J.

We concur:

____________________________

JACKSON, P.J.

____________________________

NEEDHAM, J.

A158271 / A159457


[1] Undesignated statutory references are to the Penal Code.

[2] The trial court stayed the sentences on these counts pursuant to section 654, subdivision (a), and Burgos does not contend that resentencing is necessary once the convictions are reversed.





Description A jury found Normandie Santos Burgos guilty of committing multiple sex offenses against two minors. He contends that his attorney violated his Sixth Amendment rights by conceding his guilt for some of the offenses over his objection. In addition, he asserts that the convictions on several counts cannot stand because they were lesser included offenses of other counts for which he was also convicted. We disagree with his Sixth Amendment argument, but we find merit in his point about the lesser included offenses. We reverse the convictions on the relevant counts but otherwise affirm.
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