P. v. Serrato
Filed 6/13/13 P. v. Serrato CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ANGELO SERRATO,
Defendant and Appellant.
B237489
(Los Angeles
County
Super. Ct.
No. NA085648)
APPEAL from
a judgment of the Superior Court
of
County, Charles D. Sheldon, Judge. Affirmed.
David M.
Thompson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, and Margaret E. Maxwell
and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________
Appellant
Michael Angel Serrato appeals from the judgment entered following his
conviction of kidnapping to commit oral
copulation or rape (Pen. Code,
name="_ftnref1" title="">[1] § 209, subd. (b)(1)), making criminal
threats (§ 422), forcible oral copulation
(§ 288a, subd. (c)(2)), forcible rape (§ 261, subd. (a)(2)), dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1)), and false imprisonment
by violence (§ 236). Serrato’s sole
contention on appeal is that his trial counsel rendered ineffective
assistance in failing to object to evidence of a knife recovered from his
vehicle following his arrest, which the victim testified was not the weapon
used in the commission of the crimes.
Because there is no reasonable probability that Serrato would have
achieved a more favorable result had his trial counsel objected to the
admission of such evidence, we affirm.
I.
Evidence at Trial
On the afternoon of January 31, 2009, Esperanza G. and
her 19-year-old daughter, Maria G., were visiting relatives when Serrato
approached them.
title="">[2]
and knew he recently had been released from prison. Serrato offered to pay Maria $80 to clean his
small apartment. Although Esperanza did
not want Maria to go with Serrato, Maria agreed because she needed the money to
attend a local fair later that evening.
Serrato arranged to pick up Maria at her home a short time later.
When Maria and Serrato arrived at
his apartment, she began to clean. After
cleaning the kitchen and living room, she knocked on Serrato’s bedroom
door. When he opened it, Maria saw a
white bag containing powder, a spoon, a syringe, and a needle. She also noticed that Serrato had bruises on
the interior of both arms near the elbow.
Maria finished cleaning the apartment and told Serrato that she was
ready to leave. He responded that he was
charging his ankle bracelet and she would have to wait. After about 20 minutes, Serrato told Maria
that he was ready, but he did not have the money to pay her. He also said that they would have to go to
his mother’s nearby house to get her bank card and then withdraw the money from
an ATM machine.
After a brief stop at his mother’s
house, Serrato drove Maria to a gas station to put gas in his vehicle. Although the gas station had an ATM machine,
Serrato did not use it. Instead, he
explained to Maria that the ATM at the gas station was too expensive and he
intended to use an ATM at a Vons grocery store.
Once they left the gas station, Serrato began driving erratically,
swerving in and out of traffic. He then
entered the 710 freeway. When Maria
questioned why they were not going to the Vons near his home, Serrato told her
that there was a new Vons store on Willow. Maria used her cell phone to call her
boyfriend and while she was talking to him, Serrato suddenly told her to
“[h]ang up that fucking phone.†Maria
was frightened by the tone of Serrato’s voice and “had a feeling that something
was going to happen.â€
As Serrato was driving on the
freeway, he reached into the back seat of his vehicle, grabbed a bottle in a
black plastic bag, and took several drinks of a substance that smelled like
alcohol. At some point, Serrato became
belligerent and told Maria, “You’re a fucking bitch. You think you’re too good for me. . . . I’m
going to get pussy whether you want to or not.
You’re going to be mine. I’m
going to take you out of the state.â€
Maria begged Serrato to stop, telling him, “You always told my mom you
consider yourself like a dad to me. A
dad would not do that to their daughter.â€
Maria also urged him to “think about [his] mom.†Serrato answered, “I don’t give a fuck about
my mom. I don’t give a fuck about my
parole. I’m going to take you out of
state.†When Maria told Serrato that he
was “really scaring [her],†he responded, “Oh, you want me to act like a
maniac, that’s how you want me to act.â€
He then reached into his pocket and retrieved a kitchen knife. The knife was three to five inches long and
had a wooden handle. Serrato pointed the
knife at Maria’s head and said that he was “going to get fucking pussy, fucking
bitch.â€
Serrato was merging onto the 405
freeway when he suddenly stopped his vehicle on the side of the road. He pulled out his penis, pushed Maria’s head
down, and forced her to orally copulate him.
When Maria tried to stop, Serrato threatened that he knew where her
mother and brother lived and he could have them killed by “just mak[ing] a
call.†At some point, Serrato resumed
driving on the freeway. As he was
driving, he again pushed Maria’s head down toward his penis and forced her to
orally copulate him. Maria was crying
and continuously pleaded with Serrato to “stop, please.†When Maria realized that Serrato was not
going to let her go, she told him that he could do whatever he wanted to her at
his house. Maria thought that would be
her best chance to escape because she was familiar with the area and could try
to run for help. Serrato told Maria that
he did not believe her. He also repeatedly
said, “I already told you . . . . I’m gonna fuck you, bitch. I already told you I’m gonna get pussy
whether you want to or not.â€
After Serrato exited the freeway,
Maria saw a police vehicle approaching from the opposite direction. Serrato warned Maria not to say anything,
reminding her that he knew where her family lived and he “could just make a
call and they’ll be there in a quickness.â€
Maria stayed quiet as the police vehicle passed. Serrato eventually stopped the car in an
alley and ordered Maria to get into the back seat. Once in the back seat, he pulled down her
pants and said, “I already told you I’m gonna fuck you bitch. I already told you I’m gonna get pussy
whether you want it or not.†Maria again
pleaded with Serrato to stop and tried to push him off of her. Serrato grabbed Maria, threw her back, and
forcibly raped her.
After they were parked in the alley
for about 20 minutes, a woman in another vehicle honked at them to move because
they were blocking her driveway. Serrato
returned to the driver’s seat and warned Maria not to say anything. He then drove to a nearby gas station and
told Maria to stay in the car. As soon
as he exited the vehicle, Maria grabbed her cell phone and called her
mother. Maria was crying, frightened,
and uncertain about what she should do.
At Esperanza’s urging, Maria ran from the vehicle and hid in some nearby
bushes until Esperanza picked her up.
Maria told Esperanza that Serrato had kidnapped and tried to rape her,
but did not disclose the true nature of the sexual assault. When Esperanza insisted that they report
Serrato to the police, Maria reluctantly agreed.
Later that evening, Esperanza
received a telephone call from Serrato who claimed that he did not know where
Maria was. He told Esperanza that Maria
got out of his vehicle and into a van with some Black men. Serrato also said that he had “run them off
with his car,†“hit them,†and “fought with them.†Esperanza explained to Serrato that Maria was
with her and had already told her what he had done. Serrato became quiet and then hung up the
telephone. Three days later, on February 3, 2009, Serrato was
arrested and his vehicle was impounded by the police. During a subsequent search of the vehicle, a
knife with a silver handle was recovered from the rear area of the trunk.
In her initial interview with the
police, Maria reported that Serrato had kidnapped and attempted to rape
her. She did not describe the oral
copulation or the actual rape at that time because she was afraid of Serrato’s
threats against her and her family. At
the preliminary hearing, where Serrato was representing himself, Maria
testified that he had touched her upper leg in a sexual manner, but again did
not disclose the rape or the oral copulation.
However, a few days prior to trial, at the urging of her therapist,
Maria told the prosecuting attorney and investigating officer for the first
time about the full extent of the crimes against her. At the time of trial, Maria was still afraid
to be alone and continued to fear for her and her family’s safety.
Ashley Morgan
was a crime scene analyst for Satellite Tracking of People, a private company
that produces and monitors ankle bracelets worn by parolees, including the one
worn by Serrato on the day of the alleged crimes. Morgan testified that the bracelet operates
like a “mini GPS system†and is able to accurately pinpoint the bracelet’s
location within 50 feet. Using a map,
Morgan demonstrated the movement of Serrato’s bracelet on January 31, 2009, starting at approximately 5:00 p.m.
The tracking software showed that Serrato’s bracelet was on 7th
Street, the 710 freeway, the 405 freeway, and then
stopped at a location that appeared to be an alley for about 30 minutes. Thereafter, Serrato’s bracelet was at a gas
station on East Spring Street
for about 10 minutes, and then stayed in the same area of Long
Beach Boulevard and East
Spring Street for another 12 to 15 minutes before
leaving that area.
II.
Jury Verdict and Sentencing
The jury found
Serrato guilty as charged of kidnapping to commit oral copulation or rape
(§ 209, subd. (b)(1)), making criminal threats (§ 422), forcible oral
copulation (§ 288a, subd. (c)(2)), forcible rape (§ 261, subd. (a)(2)),
dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), and false
imprisonment by violence (§ 236). As to
each count, the jury also found true the allegation that Serrato personally
used a deadly and dangerous weapon, a knife, in the commission of the crime (§
12022, subd. (b)(1)). In a bifurcated
proceeding, the trial court found that Serrato had served six prior prison
terms within the meaning of section 667.5, subdivision (b), and had suffered
two prior serious or violent felony convictions within the meaning of section
667, subdivision (a)(1) and the “Three Strikes†law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). The trial
court also found true the allegations that, with respect to the two sex offense
counts, Serrato personally used a knife, committed a kidnapping that
substantially increased the risk of harm to the victim, and had a prior
conviction for rape (§ 667.61, subds. (a)-(e)).
Serrato was sentenced to a total state
prison term of 86 years to life. He
thereafter filed a timely notice of appeal.
DISCUSSION
On appeal, Serrato argues that he received ineffective assistance of
counsel in violation of his federal and
state constitutional rights when his trial attorney failed to object to the
admission of evidence concerning the knife recovered from his vehicle. Serrato specifically asserts that, because
Maria testified that the seized knife was not the one used in the commission of
the charged crimes, such evidence lacked any probative value and was highly
prejudicial. The Attorney General
contends that the knife was properly admitted as circumstantial evidence
because it demonstrated the type and size of the weapon actually used by
Serrato and tended to corroborate Maria’s version of events. While we agree that the evidence of the knife
recovered from the vehicle was not relevant to any of the charged crimes, we
conclude that Serrato was not prejudiced by his trial counsel’s failure to
object to its admission.
I.
Relevant Facts
At trial, the
parties stipulated that, on February 3,
2009, three days after the commission of the alleged crimes,
Serrato was arrested and his vehicle was impounded. During a subsequent search of the vehicle, a
knife was recovered from the rear area of the trunk. The prosecutor showed Maria the seized knife
during her trial testimony. Maria
testified that the knife’s blade was the approximate size of the one used by
Serrato, but she believed it was not the same knife. As described by Maria, the knife shown to her
at trial had a silver handle whereas the knife used by Serrato had a wooden
handle. At the prosecutor’s request, the
trial court allowed the prosecutor to show the seized knife to the jury for
“size purposes,†and later admitted a photograph of the knife into evidence. Serrato’s trial counsel did not object to the
showing of the knife to the jury or to the subsequent admission of the
photograph depicting the knife.
II.
Relevant Law
“A criminal defendant is guaranteed
the right to the assistance of counsel by the Sixth Amendment to the
States Constitution and article I, section 15 of the California
Constitution.†(People v. Doolin (2009) 45 Cal.4th 390, 417.) To prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate that trial counsel’s
representation fell below an objective standard of reasonableness, and that
there is a reasonable probability that, but for counsel’s deficient
performance, the result of the trial would have been different. (Strickland
v. Washington (1984) 466 U.S. 668, 694; People
v. Gamache (2010) 48 Cal.4th 347, 391.)
“‘In determining whether counsel’s performance was deficient, a court
must in general exercise deferential scrutiny . . .’ and must ‘view and assess
the reasonableness of counsel’s acts or omissions . . . under the circumstances
as they stood at the time that counsel acted or failed to act.’ [Citation.]â€
(People v. Scott (1997) 15
Cal.4th 1188, 1212.) The showing of
prejudice requires “‘a reasonable probability that a more favorable outcome
would have resulted . . ., i.e., a probability sufficient to undermine
confidence in the outcome.’
[Citations.]†(
1223, 1241.) “A defendant must prove
prejudice that is a ‘“demonstrable reality,†not simply speculation.’ [Citations.]â€
(Ibid.)
“‘Relevant evidence’ means evidence
. . . having any tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.†(Evid. Code, § 210.) Generally, “[w]hen the prosecution relies on
evidence regarding a specific type of weapon, it is error to admit evidence
that other weapons were found in the defendant’s possession, for such evidence
tends to show not that he committed the crime, but only that he is the sort of
person who carries deadly weapons.
[Citations.]†(
1038, 1056 [trial court erred in admitting evidence of defendant’s prior
possession of handgun similar to murder weapon where prosecutor did not claim
such weapon was actually used in murders]; see also People v. Riser (1956) 47 Cal.2d 566, 577 [trial court erred in
admitting evidence of a Colt .38-caliber revolver found in defendant’s
possession two weeks after murders where evidence showed weapon actually used
was a Smith and Wesson .38-caliber revolver], overruled on other grounds in
648-649; People v. Archer (2000) 82
Cal.App.4th 1380, 1392-1393 [trial court erred in admitting evidence of knives
recovered from defendant’s residence two years after murder where knives were
not murder weapon and were irrelevant to show planning or availability of
weapons].) In other words, “[e]vidence
of possession of a weapon not used in the crime charged against a defendant
leads logically only to an inference that defendant is the kind of person who
surrounds himself with deadly weapons -- a fact of no relevant consequence to
determination of the guilt or innocence of the defendant. [Citations.]â€
(People v. Henderson (1976) 58
Cal.App.3d 349, 360.)
On the other
hand, evidence of weapons not actually used in the commission of a crime
may be admissible when they are relevant for other purposes. (People
v. Cox (2003) 30 Cal.4th 916, 956 [“when weapons are otherwise relevant to
the crime’s commission, but are not the actual murder weapon, they may still be
admissibleâ€], disapproved on other grounds in People v. Doolin, supra,
45 Cal.4th at p. 421, fn. 22.) The
critical inquiry is whether the weapons evidence bears some relevance to the
weapons shown to have been involved in the charged crimes, or is being admitted
simply as character evidence. (
III.
Application to Serrato’s Ineffective Assistance
of Counsel Claim
In this case, the evidence
concerning the knife recovered from Serrato’s vehicle was not relevant to his
commission of any of the charged crimes.
At trial, Maria was unequivocal in her testimony that the seized knife
shown to her by the prosecutor was not the knife used by Serrato during
the sexual assault. Maria was also
specific in her description of the knife actually used and testified that it
was a kitchen knife with a wooden handle and was approximately three to five
inches in length. While the Attorney
General reasons that the knife recovered from Serrato’s vehicle was relevant to
demonstrating the type and size of the knife used in the sexual assault, the
general appearance of a three to five inch kitchen knife would have been within
the common understanding of the jury without the need for such visual
aids. The average juror likely would be
familiar with the dimensions of a standard kitchen knife and would not need to
see a similarly-sized knife to understand the nature of the weapon used.
Additionally, contrary to the
Attorney General’s claim, the knife recovered from Serrato’s vehicle was not
relevant to corroborating Maria’s version of events. Maria testified that the only weapon used in
the commission of the crimes was the knife with a wooden handle which Serrato
pulled from his pocket once Maria was already in his vehicle and he was driving
on the freeway. The presence of a second
knife in the trunk of the vehicle, which Serrato never accessed and of which
Maria was never aware, was not probative on the issue of her credibility nor
would it support an inference that Serrato ever intended to use that weapon in
his commission of the charged crimes.
However, even assuming the
performance by Serrato’s trial counsel was deficient in failing to object to
the admission of such evidence, Serrato cannot show that a more favorable
result was reasonably probable.
name="_ftnref3" title="">[3]
knife to the jury, the prosecutor clearly stated that it was being presented
“for size purposes only.†The prosecutor
did not use the knife to argue to the jury that Serrato was the sort of person
who surrounded himself with deadly weapons.
In fact, the knife was only briefly referenced by the prosecutor in his
closing argument wherein he stated: “The
knife was actually not recovered. It
looks similar to the one that was here that you have a picture of.†Serrato’s trial counsel also reiterated to
the jury throughout his closing argument that it was undisputed the knife
recovered from his client’s vehicle was not the knife allegedly used in
the charged crimes.
Moreover, the totality of the
evidence supporting Serrato’s convictions was very strong. At trial, Maria provided a detailed account
of the kidnapping, forcible oral copulation and rape, and threats against her
and her family. She also explained the
fear and embarrassment she felt after the sexual assault which initially
dissuaded her from disclosing the full extent of the assault to anyone. Esperanza confirmed that, when Maria called
her that night from her cell phone, she was frightened, crying, and reluctant
to report any crime to the police because of Serrato’s threats. Esperanza further testified that Serrato
called her shortly after she was able to locate Maria near a gas station and
told her an elaborate story about how Maria got out of his vehicle and into a
van with several Black men with whom Serrato had fought. When Esperanza explained that Maria was with
her and had told her what Serrato had done, he became quiet and then hung up
the phone. In addition, the ankle
bracelet worn by Serrato provided tracking data on his whereabouts the evening
of the alleged crimes, which strongly corroborated Maria’s version of events,
including the approximate location and time at each of Serrato’s stops.
Based on this record, Serrato has
not demonstrated a reasonable probability that the outcome of his trial would
have been any different had his trial counsel made a timely objection to the
evidence concerning the seized knife.
Serrato’s ineffective assistance of counsel claim accordingly
fails.
DISPOSITION
The
judgment is affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J.
WOODS, J.
name="_ftn1" title="">[1]
otherwise stated, all further statutory references are to the Penal Code.
name="_ftn2" title="">[2] For
clarity and convenience, and not out of disrespect, we refer to Esperanza and
Maria G. by their first names.
