Filed 8/31/17 P. v. Gomez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. JUAN ARTEAGA GOMEZ, Defendant and Appellant.

H043446 (Santa Clara County Super. Ct. No. C1505099)

A jury convicted defendant Juan Arteaga Gomez of one count of intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a))[1] and three counts of oral copulation or sexual penetration with a child 10 years of age or younger (id., subd. (b)). The trial court sentenced defendant to 70 years to life in prison and ordered him to pay $1,600 in restitution to the Victim Compensation and Government Claims Board (Board). On appeal, defendant seeks to have his convictions for violating section 288.7, subdivision (b) reversed on ineffective assistance of counsel grounds. He also challenges the restitution order as unauthorized. We shall affirm.

I. Factual and Procedural Background

The Santa Clara County District Attorney charged defendant with one count of intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)) and three counts of oral copulation or sexual penetration with a child 10 years of age or younger (id., subd. (b)).

During a one-day trial, the victim, then 11 years old, testified that defendant is her younger half-sister’s father. He moved in with her and her mother when the victim was six or seven years old. She testified that once, when she was sick and her mother was out buying soup, defendant asked if he could lick her vagina. She said yes and he did so, but he quickly stopped when her mother returned. Defendant told the victim not to tell her mother about the incident. On another occasion, when the victim was about eight years old, she laid down on the living room floor, pulled down her pants, and the defendant licked her vagina. He stopped when a friend of the victim’s knocked on the door. Afterwards, he took the victim to ballet class. The victim recalled a third occasion when the defendant licked her vagina after she had gone swimming. The victim also testified that defendant once put his penis in her vagina; she told him “not all the way in ‘cause it hurts.” He then rubbed his penis on the outside of her vagina and white stuff came out of it. Defendant also showed the victim pornography on the television.

On cross-examination, the victim said that she was angry with defendant when she first disclosed the abuse to a counselor. She also admitted to sometimes exaggerating and agreed with defense counsel’s statement that “maybe not everything that you’re saying happened [actually] happened.”

Alejandro Ortiz, a sexual assaults detective with the San Jose Police Department, testified that he interviewed defendant following his arrest. Detective Ortiz testified that defendant admitted to touching the victim’s vagina with his finger and said that “he would tickle her [vagina] with his tongue.” Defendant specifically admitted to touching the victim’s vagina on a day when she was home sick, although he did not say what part of his body he used to touch her on that occasion. Defendant also admitted to exposing his penis to the victim and ejaculating “in front of her or near her.” Defendant denied putting his penis inside the victim. On cross-examination, defense counsel asked: “[defendant] admitted that he orally copulated [the victim] one time; correct?” Detective Ortiz responded: “I believe so, yes.”

During closing arguments, defense counsel urged jurors to convict on all three oral copulation counts, which she said defendant “admitted,” but to acquit on the sexual intercourse count.

The jury convicted defendant on all four counts.

On April 1, 2016, the trial court sentenced defendant to a prison term of 70 years to life: 25 years to life on count 1 and 15 years to life on counts 2, 3, and 4, with all terms running consecutively. The court ordered defendant to pay $1,600 in restitution to the Board.

Defendant timely appealed.

II. Discussion

A. Ineffective Assistance of Counsel

Defendant argues trial counsel rendered constitutionally ineffective assistance by conceding, in her closing argument, that he was guilty of three counts of oral copulation. He maintains that trial counsel’s argument misstated the evidence to his detriment because Detective Ortiz’s testimony showed defendant admitted only one count of oral copulation.

1. Legal Principles

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Id. at p. 688.) With respect to prejudice, a defendant must show “there is a reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) We “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, . . . that course should be followed.” (Id. at p. 697.)

“The decision of how to argue to the jury after the presentation of evidence is inherently tactical . . . .” (People v. Freeman (1994) 8 Cal.4th 450, 498.) “Defense counsel must not argue against his or her client [citation], but it is settled that it is not necessarily incompetent for an attorney to concede his or her client’s guilt of a particular offense.” (People v. Lucas (1995) 12 Cal.4th 415, 446.) Indeed, where there is “overwhelming evidence against [a defendant], . . . good trial tactics [may demand] complete candor.” (People v. Powell (1974) 40 Cal.App.3d 107, 167; People v. Jones (1991) 53 Cal.3d 1115, 1150 [“It is within the permissible range of tactics for defense counsel to candidly recognize the weaknesses in the defense in closing argument”].) Accordingly, our Supreme Court has rejected ineffective assistance of counsel claims in “cases involving concessions made by defense counsel in closing argument, where the incriminating evidence was strong and counsel offered some other choice in the defendant’s favor.” (People v. Hart (1999) 20 Cal.4th 546, 631.) That said, “a defense attorney’s concession of his client’s guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel.” (People v. Gurule (2002) 28 Cal.4th 557, 611.)

2. Analysis

We need not decide whether trial counsel’s performance was deficient because defendant has not shown a reasonable probability of a more favorable verdict had trial counsel not conceded guilt on the oral copulation counts.

The defense did not call any witnesses or offer any evidence. Thus, the only viable defense strategy was to challenge the victim’s credibility. The guilty verdict on count 4, charging sexual intercourse, demonstrates the jury credited the victim’s testimony despite defendant’s denial of that charge, as testified to by Detective Ortiz. Logic dictates that the jury likewise would have credited the victim’s testimony as to the oral copulations had defense counsel not stated that defendant admitted those charges.

We do not find persuasive defendant’s theory that jurors voted to convict him, not because they were persuaded by the victim’s testimony, but because they believed defense counsel had attempted to mislead them into believing defendant admitted to more counts than he did.

For the foregoing reasons, defendant’s ineffective assistance of counsel claim fails.

B. Restitution

The court ordered defendant to pay $1,600 in restitution to the Board as recommended by the probation report. The probation report states “Victim Witness officials reported paying the victim $1600.00 in relocation costs.” The probation report also indicates that the victim’s mother explained that she could not afford to pay her rent after defendant was incarcerated; she moved to a more affordable home with the help of $1,600 in relocation costs from the Victim Witness Center. Defendant contends the restitution order was unauthorized because the relocation expenses were not verified to be necessary by law enforcement or by a mental health professional as he maintains is required by section 1202.4, subdivision (f)(3)(I).

1. Forfeiture

The People contend that defendant forfeited any challenge to the restitution order by failing to object below. Defendant argues the unauthorized sentence exception to the forfeiture rule applies.

Generally, a defendant “cannot obtain appellate relief concerning [a] restitution order [where] he failed to object to it in the trial court.” (People v. Le (1995) 39 Cal.App.4th 1518, 1523.) “[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.) “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing. [Citation.]” (Ibid.) “In essence, claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.)

Defendant’s argument is that the restitution order was improperly imposed because the relocation of victim and her mother was not “verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.” (§ 1202.4, subd. (f)(3)(I).) Thus, his complaint is that the order was imposed in a procedurally flawed manner (because of the absence of the necessary verification) or a factually flawed manner (because relocation may not have been necessary for the personal safety or emotional well-being of the victim). Accordingly, the unauthorized sentence exception does not apply. Defendant forfeited his challenge to the restitution order by failing to object at the sentencing hearing.

2. Ineffective Assistance of Counsel

We turn, then, to defendant’s alternative argument: that his trial counsel was ineffective for failing to object to the restitution order.

a. Legal Principles Governing Victim Restitution

“Convicted criminals may be required to pay one or more . . . types of restitution,” including “a ‘restitution fine’ . . . paid into the Restitution Fund in the State Treasury” and “restitution directly to the victim or victims of the crime.” (People v. Giordano (2007) 42 Cal.4th 644, 651 (Giordano).) Similarly, crime victims may obtain restitution indirectly from the Board out of the Restitution Fund or directly from the defendant pursuant to a court restitution order. (Gov. Code, § 13950, subd. (b); § 1202.4; Giordano, supra, at pp. 651-653.)

Section 1202.4 requires a sentencing court to order a defendant to pay direct victim restitution in “a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including . . . . [¶] (I) Expenses incurred by an adult victim in relocating away from the defendant . . . .” (§ 1202.4, subd. (f)(3)(I).) “Expenses incurred pursuant to . . . section [1202.4, subdivision (f)(3)(I)] shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.” (Ibid.)

Government Code section 13957 authorizes the Board to compensate victims for specific enumerated losses, including “expenses incurred in relocating, if the expenses are determined by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.” (Gov. Code, § 13957, subd. (a)(7)(A).) Where indirect restitution has been paid out of the Restitution Fund, “the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.” (§ 1202.4, subd. (f)(4)(A).) “If the defendant offers evidence to rebut the presumption established by this paragraph, the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order.” (§ 1202.4, subd. (f)(4)(C).)

“[W]e review the trial court’s restitution order for abuse of discretion.” (Giordano, supra, 42 Cal.4th at p. 663.)

b. Analysis

Direct victim reimbursement is not at issue in this case. Rather, the victim’s mother was reimbursed $1,600 for relocation costs out of the Restitution Fund and defendant was ordered to pay $1,600 in restitution to the Board. Under these circumstances, 1202.4, subdivision (f)(3)(I) has no application and trial counsel was not ineffective in failing to raise an objection pursuant to that provision, as defendant claims. (People v. Ochoa (1998) 19 Cal.4th 353, 463 [“Representation does not become deficient for failing to make meritless objections”].)

As the People note, section 1202.4, subdivision (f)(4)(C) governs here. On reply, defendant contends that a verification nevertheless was required pursuant to Government Code section 13957, subdivision (a)(7)(A) and that trial counsel was ineffective for failing to object on that ground. Even reading defendant’s ineffective assistance of counsel claim broadly, so as to include that revised argument, we reject it.

The victim’s mother was required to file an application for compensation with the Board. (Gov. Code, § 13952, subd. (a).) And the Board was required to verify all the information it deemed pertinent to her claim. (Gov. Code, § 13954, subd. (a).) Given the statutory requirements, it is reasonably likely that, in the course of the application and verification process, documentation was submitted to the Board showing that the relocation expenses were “determined by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.” (Gov. Code, § 13957, subd. (a)(7)(A).) If such documentation was submitted, then trial counsel was not deficient for failing to object.

But neither party cites to the application for compensation or the verification information on which the Board relied; nor have we found any such documents in the record. Defendant has the burden of demonstrating error. (Gamache, supra, 48 Cal.4th at p. 378; see In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452 [“it is the appellant’s burden to provide an adequate record on appeal”]; People v. Clifton (1969) 270 Cal.App.2d 860, 862 [“ ‘error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him’ ”].) By not affirmatively showing that the proper documentation was not submitted to the Board, defendant has failed to carry that burden. On the current record, we cannot say that counsel rendered deficient performance.

III. Disposition

The judgment is affirmed.

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