Filed 10/19/17 P. v. Flores CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Jos Flores was convicted of committing three sexual offenses against his girlfriend’s teenage daughter. He contends the trial court abused its discretion under California v. Trombetta (1984) 467 U.S. 479 (Trombetta) when it declined to dismiss the case as a sanction for the prosecution’s failure to preserve a recording of an investigator’s interview with the victim. Flores also contends his attorney’s representation of him was constitutionally inadequate because she failed in closing argument to address an inconsistency between the testimony of the victim and her mother. Finally, he asserts his restitution fine violates Penal Code section 654[1] and his attorney was ineffective for failing to object to it. None of his contentions have merit. We affirm.

BACKGROUND

On the morning of July 18, 2014, the 15-year-old victim was woken up when Flores, her mother’s boyfriend, entered her bedroom and closed the window and blinds. The victim testified that Flores told her he was going to take her “stick shift driving,” then said he was going to give her a massage. Flores had massaged the victim’s calf the previous August after she injured it playing soccer. According to her, that first massage occurred in her mother’s bedroom with her mother, Ana, present. But Ana testified she never saw Flores give her daughter a massage.

On July 18 Flores left the room, then returned with a bowl of hot water, a wash cloth and baby oil. He closed and locked the bedroom door, told the victim to turn on her stomach, and began massaging her arm. He then covered her buttocks with a towel and removed her pajama pants. The victim felt “weird about it when he [took her] pants off,” but she did not say anything. Flores sat on the bed and massaged the victim’s calves. At first she did not feel uncomfortable, but then she felt his hands move higher and felt his finger outside of her vagina. She turned over onto her back and “saw his head going down” between her legs and felt his tongue touching the outside of her vagina. The victim protested and they struggled briefly before she managed to get up, unlock the bedroom door, go into the bathroom and lock the door.

She heard noises that sounded like Flores was trying to pick the lock and saw his hands “go under the door and him yanking the door back, but he couldn’t get it open.” Then she heard Flores trying to remove the hinges from the bathroom door. The victim had grabbed her phone from under her pillow and began sending text messages to her friend and neighbor Arianna, asking her to come over quickly. Arriana received the texts while she was at the gym with her mother. She testified, “I got multiple texts at least 30 seconds after one another just screaming Ari, please come over.” The victim texted that there was “something going on with” Flores.

Arriana’s mother dropped her off at the victim’s house. Flores opened the door about two minutes after she knocked and “said hi to [her] like he usually would.” Arriana went upstairs and knocked on the bathroom door. The victim let her in. She was wrapped in a towel. She was crying, her eyes were red and she looked “really tense.” She told Arriana that Flores tried to touch her. The victim got dressed and the girls went to Arriana’s house and waited for her mother.

Arriana’s mother arrived home a few minutes later. Arriana asked the victim if she was going to tell her what happened. The victim said she would, but first she took a shower. [2] When she got out of the shower she looked “a little upset.” Arriana’s mother asked the girls if everything was okay and Arriana said “something is going on. But we’ll talk to you later.”

A couple of hours later the victim told Arriana’s mother what had happened that morning. Arriana’s mother texted Ana and asked her to come over. When Ana arrived the victim was in tears. She told Ana what Flores had done. Ana called the police and, after picking up her son and leaving him with a family member, she and Arriana’s mother drove the victim to the police station.

The defense theory was that the victim falsely accused Flores because he had recently confronted her about some marijuana that her little brother found in her purse. Defense counsel called Officer Jake Heinemeyer, who interviewed the victim the evening of July 18, and elicited a number of inconsistencies between the victim’s initial account of the incident and her trial testimony. Heinemeyer testified that the victim said Flores began to orally copulate her while she was lying on her back, not her stomach, that she pushed his head away, and that he then touched the outside of her vagina with his fingers. The victim did not tell Officer Heinemeyer she saw Flores leave the room and return with hot water, baby oil and a towel, but rather that Flores must have brought them in because she did not put them there. The victim told Officer Heinemeyer that Flores was standing next to the bed while he massaged her and did not say that he sat on it. She also told Heinemeyer that Flores massaged her back and thighs as well as her calves and arm. The video recording of Heinemeyer’s interview with the victim was admitted and played for the jury.

The defense also called two prosecution investigators to testify about a second interview with the victim in November 2015 and the prosecution team’s failure to preserve the recording of that interview.

The jury convicted Flores of forcible oral copulation (§ 288a, subd. (c)(2)), oral copulation of a victim younger than 16 (§ 288a, subd. (b)(2)), and committing a lewd act on a 14 or 15-year-old child (§ 288, subd. (c).) The court sentenced him to the six-year midterm for forcible oral copulation and imposed and stayed two-year terms for each of the remaining counts under section 654. This appeal is timely.

DISCUSSION

1. Trombetta

Flores contends the court abused its discretion when it declined to dismiss the case as a sanction for the prosecution’s failure to preserve a recording of prosecution investigator Vicki Rister’s November 2015 interview with the victim. We disagree.

1. Background

Rister interviewed the victim on November 19, 2015, primarily about a pair of underwear obtained by law enforcement and originally believed to be the victim’s. Rister recorded the interview but deleted the recording after she wrote a half-page report that summarized it.

Because of the prosecution’s failure to preserve the recording, Flores moved to dismiss the case pursuant to Trombetta. Investigator Rister testified at an evidentiary hearing on the motion that her interview with the victim lasted 15 to 20 minutes and she recorded “[p]arts of it.” The underwear was found to contain Flores’s DNA, but its provenance and the chain of custody were unclear. Contradicting the initial police report, the victim told Rister that she had not given police the underwear she wore after Flores orally copulated her. This information was disclosed in the written report provided to the defense.

Rister testified that she had no consistent custom or practice regarding the preservation of recordings of witness interviews. “[T]here is no reason why I keep things versus not keep things. Sometimes I just don’t. It’s kind of like notes. When I was a patrol officer I would take notes in order to refresh my recollection when I wrote my report later, but then I threw away the notes. I treat recordings the same way.” When she deleted a recording it would usually be in her computer’s “trash bin,” but in this case it was apparently permanently deleted. Rister’s report did not include everything the victim said but it contained “all the pertinent details” from the interview. Rister gave substantially the same testimony at trial.

Deputy public defender John Mendenhall also testified out of the jury’s presence. According to Mendenhall, in August 2015 Rister provided him with a written report and recorded victim interview in an unrelated rape and kidnapping case. Rister’s written report left out “a lot of significant things that were in the audio recording,” specifically that Rister asked leading questions that suggested what the witness’s answers should be and informed the witness about the defense strategy.

Investigator Michael Rowe testified at trial about his interview of the victim on March 2, 2015. Rowe recorded the interview and provided defense counsel with a copy of the recording and his written report. Rowe testified that he generally, but not always, records witness interviews. Unlike Rister, however, his practice is to retain any recordings he makes and provide copies to the prosecution and defense.

The trial court ruled that Rister’s failure to preserve the recording violated Trombetta. It explained: “In my mind if the report is exculpatory so is the recording. If the exculpatory value is apparent to the prosecution, it should have been apparent to Ms. Rister. I think that the tape should have been preserved on what I just heard, so I don’t think this warrants dismissal because it sounds like the report itself was provided. It is speculative that things that were on the recording, not included in the report, were perhaps more exculpatory than anything else. [¶] . . . [¶] But I still think people should have preserved that. As I sit here and listen to this I don’t understand how Ms. Rister, even though she had only been there what two and a half years, in my mind she should have known better.”

The court declined to dismiss the case “since the bulk of the exculpatory evidence was provided via the summary report and perhaps all of it actually.” Instead, as a sanction it instructed the jury that “Prior to trial there was an audio recorded interview of the complaining witness. That recording was destroyed by the prosecution and should have been preserved. The jurors may but are not required to assume that the contents of the audio recording would have been adverse or detrimental to the prosecution.”

B. Analysis

“[C]ourts enjoy a large measure of discretion in determining the appropriate sanction that should be imposed because of the destruction of discoverable records and evidence. ‘[N]ot every suppression of evidence requires dismissal of charges. . . . The remedies to be applied need be only those required to assure the defendant a fair trial.’ ” (People v. Zamora (1980) 28 Cal.3d 88, 99 (Zamora); People v. Yeoman (2003) 31 Cal.4th 93, 126.)

“Review of prior cases suggests the factors that guide the exercise of that discretion. First, ‘the imposition and mode of sanctions depends upon the particular circumstances attending such loss or destruction.’ [Citation].) Thus lawful and proper destruction requires no sanction [citations]; illegal and malicious suppression of evidence may result in dismissal [citations]. [¶] Second, the sanction depends on the materiality of the evidence suppressed. In Hitch [(1974) 12 Cal.3d 641], for example, we noted that bad faith destruction of evidence which might conclusively demonstrate innocence could require dismissal. [Citation.] Suppression of evidence which might impeach a witness for bias, however, may result in a new trial instead of a dismissal [citation]; suppression of evidence immaterial to the charge invokes no sanction [citation]. [¶] Finally, the courts must consider the impact of the sanction upon future cases and future police conduct. If a sanction is to deter suppression of records and evidence, it must contain a punitive element; it must outweigh the benefit that the prosecution gains from the suppression. At the same time the court must bear in mind the public interest in law enforcement, and the harm which may be inflicted by a sanction which prevents the trial and conviction of possibly guilty future defendants. ” (Zamora, supra, 28 Cal.3d at p. 100.)

Here, as noted, there is little to suggest and the court made no finding that the prosecution intentionally and maliciously destroyed the recording. The written report that was turned over to the defense was exculpatory, as it established that the prosecution could not prove the underwear containing Flores’ DNA was the victim’s and therefore precluded its admission at trial. As the court observed, it was speculative whether the deleted recording contained additional exculpatory material. Indeed, Flores admits there is no way to know what was on it. Furthermore, the jurors were instructed that the prosecution had improperly destroyed the recording and that they could assume its contents would have been detrimental to the prosecution. On this record, we see no reason to conclude Flores was deprived of a fair trial.

He disagrees. He argues the loss of potentially exculpatory evidence in the recording violated his due process rights and mandated dismissal because Rister destroyed the recording in bad faith. [3] (See People v. Memro (1995) 11 Cal.4th 786, 831, overruled on another point in People v. Gaines (2009) 46 Cal.4th 172, 181 fn. 2 [“ ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law’ ”]; Arizona v. Youngblood, supra, 488 U.S. at p. 57.) “[A] trial court’s inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence. [Citation.] [¶] . . . The burden [is] on the defendant to show bad faith.” (People v. Memro, supra, at p. 831.)

Here, Flores’ claim of bad faith rests on his assumption that the recording’s disappearance from Rister’s computer’s trash bin proved that someone on the prosecution team purposefully deleted it in order to keep it from the defense. But this is speculation. Rister testified she had no particular practice about retaining recordings, and, consistent with her former practice as a patrol officer, would sometimes (but not always) delete them after she wrote her reports. In this case she asked colleagues to retrieve the deleted recording from her computer’s recycle bin, but it could not be found. No evidence was introduced as to why: whether, for example, the trash bin was manually or automatically emptied, or the file was accidentally or intentionally deleted from it. “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 314.) We have no basis here to disregard the trial court’s assessment of Rister’s testimony. In light of the absence of a trial court’s finding the recording was deleted in bad faith, the adverse inference instruction was within its discretion.

2. Ineffective Assistance of Counsel

Flores argues his attorney provided ineffective assistance during closing argument by failing to point out an inconsistency between the victim’s testimony and her mother’s regarding whether Flores massaged the victim’s calf almost a year before the present incident. We disagree.

A. Background

The victim testified that in August 2013 Flores massaged her calf to treat a soccer injury and that this took place in her mother’s bedroom with her mother present. Ana testified she had never seen Flores give her daughter a massage.

The defense theory was that the victim wrongly accused Flores of molesting her because she was afraid he would tell her mother that her little brother found marijuana in her purse. The primary theme of defense counsel’s closing argument was the “many inconsistencies in the testimony of each and every person that testified.” Counsel’s argument particularly focused on a “multitude of inconsistencies and I venture to say lies” in the victim’s testimony, including instances where it conflicted with other witnesses’ testimony and her own statements to law enforcement. But counsel did not mention the inconsistency between the victim’s testimony about the 2013 massage and her mother’s denial that it occurred.

B.Analysis

Flores argues his counsel’s failure to mention the conflicting testimony about the calf massage was unreasonable, inexplicable and prejudicial. (See Strickland v. Washington (1984) 466 U.S. 668, 687–688.) We disagree.

The record fails to disclose why defense counsel did not address this particular conflict in the testimony in closing, so we may not conclude the failure to do so was ineffective assistance unless there is simply no satisfactory explanation for the omission. (People v. Maury (2003) 30 Cal.4th 342, 389.) But there is. Counsel could have deemed it unwise to draw the jurors’ attention to an incident they might perceive as preliminary sexual grooming. Flores argues counsel had nothing to lose by addressing the incident in closing because “that ship had already sailed” by the time counsel gave her summation, but competent defense counsel could reasonably have concluded otherwise. Defense counsel reasonably could have also decided to focus the jurors’ attention on inconsistencies that she considered more “glaring” or that directly concerned the events of the day the molestation occurred, to avoid the risk of distracting them with a peripheral event that took place a year earlier. “ ‘The decision of how to argue to the jury after the presentation of evidence is inherently tactical . . . .’ [Citation.] To prevail on a claim that counsel’s approach in such a matter was ineffective, ‘defendant must overcome the strong presumption that counsel’s actions were sound trial strategy under the circumstances prevailing at trial.’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 1163; People v. Freeman (1994) 8 Cal.4th 450, 498.) Flores cannot do so here.

3. The Restitution Fine

Although the probation officer recommended a restitution fine of $7,200, the court imposed a fine of $5,400. Section 1204 provides that absent compelling and extraordinary reasons the court must impose a restitution fine between $300 and $10,000 and that the amount “shall be set at the discretion of the court and commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1).) Subdivision (b)(2) provides a formula that the court “may” use if it chooses: “the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (§1202.4, subd. (b)(2).)

Flores challenges the $5,400 fine. Although the court did not indicate how it arrived at that amount, Flores asserts it must have used the subdivision (b)(2) formula because the product of $300 multiplied by his sentence of six years, multiplied by his three convictions, is $5,400. Flores says such a calculation would be erroneous because the sentences on two of his three convictions were stayed pursuant to section 654. (See People v. Le (2006) 136 Cal.App.4th 925, 933 (Le) [counts stayed under section 654 may not be used to compute restitution fines].)

Flores acknowledges the record does not disclose the court’s reasoning, but he argues “the fact that the amount of the restitution fine just happened to be precisely equal to the amount yielded by the discretionary formula . . . is not reasonably susceptible” to any interpretation other than that it relied on the statutory formula. We disagree. As an initial matter, Flores forfeited this claim by failing to object at the time of sentencing. In order to preserve a challenge to the setting of a restitution fine, “a defendant must make a timely objection in the trial court in order to give that court an opportunity to correct the error; failure to object should preclude reversal of the order on appeal.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) Flores asserts the issue is nonetheless cognizable on appeal because claims of error under section 654 are not waivable, but nothing in the record compels a conclusion that the court calculated the fine on the basis of convictions for which the terms were stayed under section 654.

Alternatively, Flores contends his counsel was ineffective for failing to object to the restitution fine at sentencing. Again, we disagree. In order to establish a claim of ineffective assistance of counsel, a defendant bears the burden of demonstrating both that counsel’s performance fell below an objective standard of reasonableness and “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Ledesma (2006) 39 Cal.4th 641, 746.) Flores cannot show either. Competent defense counsel reasonably could have refrained from objecting to the $5,400 fine out of concern that raising the issue would give the prosecution an opportunity to persuade the court to adopt the probation officer’s recommendation of $7,200. As to prejudice, Flores’ theory is premised on the assumption the court intended to apply the formula in section 1202.4, subdivision (b)(2) and would have adhered to that formula, albeit incorrectly, in response to an objection by defense counsel. But the court expressed neither intention, and the record contains no indication it was willing to reduce the fine below $5,400.

Nonetheless, Flores asserts that the only possible reason for the $5,400 figure must be that the court misapplied the section 1202.4, subdivision (b)(2) formula. Any other explanation, in his view, “is almost comically unlikely.” But it seems equally plausible to us that the court reduced the $7,200 fine proposed by the probation department by 25 percent commensurate with its 25 percent reduction from the recommended 8-year aggravated term to the six-year midterm. Whether or not that was its reasoning, the critical point is that the record does not compel Flores’ theory that the court would have imposed a smaller fine had defense counsel objected.

For this reason, Flores’ reliance on Le, supra,136 Cal.App.4th 925, is misplaced. In Le, the record established that the trial court relied on the formula provided by section 1202.4, subdivision (b)(2). (Id. at p. 935.) Indeed, the court explicitly stated at sentencing that the fine was imposed “ ‘under the formula permitted by [section ] 1202.4.’ ” (Id. at p. 932.) The record here contains no indication that the trial court intended to rely on the statutory formula. Flores bears the burden of demonstrating ineffective assistance of counsel and nothing in the record shows the court erred in calculating the restitution fine, that it would have imposed a lesser fine had trial counsel objected, or that it was unreasonable for counsel to withhold an objection.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Pollak, J.

People v. Flores, A148198