P. v. Castillo

Filed 6/26/08 P. v. Castillo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick T. Meyers, Judge. Affirmed with directions.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Efrain Castillo appeals from the judgment entered following his convictions by jury on 15 counts of committing a lewd act upon a child (Pen. Code,  288, subd. (a)). The court sentenced him to prison for 45 years to life. Appellant claims trial errors occurred. We affirm the judgment with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established as follows.

1. Peoples Evidence.

a. Sexual Offenses Against A.C. (Counts 1 through 9.)

A.C., appellants daughter, was born in July 1992. I.C. was A.C.s sister. A.C., I.C., and their mother joined appellant in the United States when A.C. was nine years old. At the time, appellant was living at the home of L.G. Months later, A.C. and her family moved to another house. At the latter house, appellant started touching A.C. in her private parts. When A.C. was nine years old, appellant touched her breast and vagina, both over and under her clothes, and digitally penetrated her vagina more than three times.

When A.C. was 10 years old, appellant put his penis in her vagina more than three times. When she was 11 years old, appellant touched A.C.s breast and vagina, digitally penetrated her vagina, and put his penis in her vagina. A.C. also testified appellant put his penis in her body, that is, in the back, which hurt her.

On a Sunday in June 2004, when A.C. was going to a quinceanera, appellant beat her badly with a belt, then sent her to bathe. While A.C. was nude in the shower, appellant touched her breast and vaginal area. A.C. decided to run away, and was going to take I.C. with her because appellant was hitting I.C.

The Monday following the quinceanera, A.C. went to school, wearing a long-sleeved shirt to hide marks she had suffered as a result of appellant beating her. She told her teacher that appellant was hitting her but, because she was ashamed, A.C. did not mention that he was touching her. Prior to the quinceanera, A.C. had discussed with L.G. the beatings, but not the touching. When police came to the school, A.C. told police about the beatings and touching. A.C. told a doctor that appellant had touched her vaginal, breast, and anal areas with his hands and fingers, and had put his penis in her vaginal and anal areas. A.C. also told the doctor about the physical abuse.

b. Sexual Offenses Against I.C. (Counts 10 & 11.)

I.C. was born in July 1993. Appellant first touched I.C.s private parts when she was nine years old. Appellant rubbed I.C.s breasts on more than two occasions, and touched I.C.s vagina on more than two occasions. Appellant also touched I.C.s breast or vagina when she was 10 years old. On one occasion, appellant told I.C. to sleep on the floor with him. He subsequently rubbed her vagina.

On a Sunday in June 2004, when I.C. and A.C. were going to a quinceanera, appellant beat I.C. and sent both I.C. and A.C. to take a shower. After the quinceanera, I.C. and A.C. planned to escape. I.C. did not want appellant hitting her or A.C., and did not want appellant touching I.C.s private parts. The next day, police came to I.C.s home, and she told police that appellant had hit her.

c. Sexual Offenses Against L.G. (Counts 12 through 15.)

L.G. was born in February 1988. Appellant was a relative of L.G., and lived in the garage of L.G.s home. When L.G. was in the third grade, that is, when she was eight and nine years old in late 1996 and early 1997, respectively, appellant touched L.G.s private parts. On one occasion, appellant was sitting on the couch and had L.G. sit next to him. Appellant covered L.G. with a blanket or cushion, then rubbed her vagina and digitally penetrated it. Appellant put L.G.s hand on his erect penis and, after about two minutes, went to the bathroom.

On another occasion, L.G. was playing hide and seek with I.C. and a neighbor when appellant called L.G. over to him. Appellant took L.G. into an alley and asked her to pull down her shorts and underwear. Appellant laughed and gave L.G. a dollar. L.G. ran back to I.C. and the neighbor.

The touchings continued until appellant moved out of the house in April 1998. From September 1996, when L.G. was in the third grade, to April 1998, appellant touched L.G.s vagina probably 10 times, digitally penetrated her vagina seven times, and had her touch his penis four times. In May 1998, L.G. and her family moved to Ontario.

Prior to March 10, 2004, L.G. told no one that she had been molested. She had felt ashamed. Appellant had told L.G. not to tell anyone about the abuse, and that her father would whip her if she did. However, on March 10, 2004, L.G. told her family about the molestations and, the next day, she told a teacher. L.G. later talked to police. In July 2004, L.G. called appellant and asked him why he had done the above acts to her. She recorded the conversation. She was not aware that A.C. or I.C. had made similar reports against appellant.

Los Angeles County Sheriffs Detective Jeffrey Walker (Walker) testified that on July 22, 2004, he told L.G. to make a pretext phone call with [appellant] and record it. L.G. complied and later gave the tape to Walker. From the time his investigation began until July 2004, Walker was unaware that police were conducting a separate investigation involving appellant.

2. Defense Evidence.

In defense, appellant presented testimony from his sister, Olga Castillo, to the effect that appellant did not molest his children. He also presented medical evidence that vaginal penetration of A.C. had not occurred. Appellant testified to the effect that he had struck A.C. and I.C. as a matter of discipline, but had never touched them or L.G. inappropriately.

CONTENTIONS

Appellant claims (1) his trial counsel provided ineffective assistance of counsel, and (2) the trial court erroneously denied appellants motion for a new trial. Respondent claims the abstract of judgment must be amended to reflect the trial courts sentence.

DISCUSSION

1. Appellants Trial Counsel Did Not Provide Ineffective Assistance of Counsel.

a. Pertinent Facts.

Appellant filed in January 2006 a motion for a new trial on the grounds of ineffective assistance of counsel, and newly discovered evidence. After argument on the motion, the trial court, on June 29, 2006, filed a memorandum and order, and the order denied the motion.

b. Analysis.

Appellant claims he received ineffective assistance of counsel. We disagree. We recite below most of appellants specific arguments, which focus upon trial counsels alleged failure to cross-examine L.G., A.C., I.C, and Walker, and upon trial counsels alleged failures to object to certain evidence. We note at the outset, however, that it is the duty of a party to support the arguments in his or her briefs by appropriate reference to the record, including exact page citation. (Cal. Rules of Court, rule 8.204(a)(1)(C); see People v. Woods (1968) 260 Cal.App.2d 728, 731.) Failure of an appellant to do so allows the court to treat the point as waived. (See People v. Marlin (2004) 124 Cal.App.4th 559, 568; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)

Appellant has failed to support his arguments with appropriate citations to the record. However, since respondent does not expressly argue that this deficiency effects a waiver of appellants arguments, we will address them on their merits.

 A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. [Citations.] First, the defendant must show that counsels performance was deficient. [Citations.] Specifically, he must establish that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] (People v. Ledesma (1987) 43 Cal.3d 171, 216.) In addition to showing that counsels performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim. (Id. at p. 217.) Moreover, on appeal, if the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)

Appellants arguments are brief, conclusory statements which, as mentioned, he has failed to support with appropriate citations to the record. It is not the responsibility of this court to canvass the record in search of the alleged basis in the record for appellants arguments. We note, however, that, wherever else the record allegedly might provide a basis for appellants arguments, the trial court considered, and rejected, most if not all of his arguments in the trial courts thoughtful, extensive, and well-reasoned memorandum, which this court has read and considered. Indeed, a comparison of appellants current ineffective assistance arguments and the issues addressed in the memorandum suggests his current arguments are largely a conclusory, summarizing restatement of the ineffective assistance arguments he made in the context of his motion for a new trial.

We see no need to repeat here the contents of the trial courts 27-page memorandum. Instead, in light of the conclusory nature of appellants arguments, it is sufficient merely to quote below, from appellants opening brief, his main arguments and, in brackets within those quotations, cite the portion of the memorandum which adequately addresses the argument. We will cite the memorandum by stating see Memorandum in brackets, followed by the appropriate page and line numbers of the memorandum according to the pagination of the clerks transcript.

(1) Trial Counsels Failure to Cross-Examine L.G.

Appellant argues On direct, [L.G.] described her recollection of her molestations, which took place from September 1996 to April 1998 as dj vu. [See Memorandum, p. 369, first full paragraph; p. 378, first full paragraph.] . . . Defense counsel did not cross-examine [L.G.] at all [see Memorandum, p. 368, second full paragraph to p. 380, first full paragraph]. He did not probe the significance of her ascribing her allegations to a feeling, rather than fact [see Memorandum, p. 369, first full paragraph; p. 378, first full paragraph], he did not confront her with the difference in the details surrounding her account of her first molestation [see Memorandum, p. 370, first full paragraph through p. 373, lines 1-8], he did not confront her with the differences in the details surrounding her account of the molestation where appellant gave her a dollar [see Memorandum, p. 373, first full paragraph through p. 376, lines 1-6], he did not confront her with the time discrepancies in her various accounts [see Memorandum, p. 374, third paragraph through p. 376, lines 1-6; p. 377, second and third full paragraphs], and he did not confront her with the very large difference between saying she was not molested by appellant after she moved from Ontario, and her testimony that appellant molested her more than ten times after she moved back from Ontario [see Memorandum, p. 376, first full paragraph, through p. 377, lines 1-7].

We note the trial court stated, [a]lthough she was vulnerable to potential cross-examination for her inconsistencies in some respects, [L.G.] could have been fairly perceived by defendants trial counsel as a very formidable witness based on her maturity, attitude, fluency, and courtroom presence. Calling the decision by defendants trial counsel not to cross-examine her inexplicable, defendant has further asserted that there was no tactical reason in declining cross-examination of [L.G.] . . . At a minimum, cross-examining [L.G.] carried the customary but considerable risk herein of reinforcing her unfavorable testimony as to defendants conduct on direct examination.

The court later stated, [w]hile not cross-examining [L.G.] was concededly a very risky part of the defense trial strategy, [t]here are countless ways to provide effective assistance in any given case, and [e]ven the best criminal defense attorneys would not defend a particular client in the same way, let alone many other criminal law practitioners defending within the wide range of professionally competent assistance. [Strickland v. Washington (1984) 466 U.S. 668, 689-690 [80 L.Ed.2d 674, 695].]

(2) Trial Counsels Failure to Cross-Examine A.C. and I.C.

Appellant argues, Counsel did not cross-examine [A.C.] regarding the substantial difference in the particulars of her abuse as variously reported and as alleged at trial from no sexual abuse to fondling over the clothes to vaginal and anal penile penetration nor did counsel seriously question [A.C.] about the inconsistency between the severity of the conduct alleged and her normal medical examination. [A.C.] was not pressed on her failure of recollection, including whoever else might have been home at the time of her molestations. In sum, [A.C.s] direct (and redirect) testimony took forty-five pages of the trial transcript, while her cross-examination covered five. [See Memorandum, p. 380, lines 21-28, through p. 383, the first full paragraph.]

Appellant also argues his trial counsel conducted minimal cross-examination of I.C. and [c]ounsel asked nothing about the particulars of [I.C.s] molestation, and did not otherwise test the accuracy of her account or her recollection. [I.C.] testified for twenty-one pages on redirect [sic], four on cross-examination. [See Memorandum, p. 380, lines 21-28 through p. 382, first full paragraph; p. 383, second full paragraph through p. 384, lines 1-2].

We note the trial court stated as to A.C. and I.C., Their tense, halting, sometimes tearful and virtually always embarrassed testimony before the jury had to have concerned everyone listening to such testimony, particularly defendants trial counsel in contemplating and then cross-examining them before the jury. The upshot was that the children and the parties attorneys all struggled through their strained examination.

The court also said, [a]sserting that defendants trial counsel had no rational or tactical basis for not bringing out inconsistencies in the girls differing versions, defendant concluded that a competent attorney would have exposed the girls material inconsistencies and used this impeachment evidence to create reasonable doubt. . . .  The court is not satisfied that the defendant has shown that any such inconsistencies were material or significant enough to lead to a different result than the one reached by the jury herein under the totality of circumstances.

The respective testimony of [A.C. and I.C.] was compelling, credible and utterly convincing to the jury, despite the difficulty with which it was elicited. The nature and extent of the discrepancies were more likely the product of the childrens reluctance and difficulty in disclosing embarrassing facts sensed by them to be disreputable matters and were therefore revealed in the resisting, piecemeal manner in which they ultimately disclosed them. Under the second prong of the Strickland [v. Washington] standard, the court finds that the defendant has failed to meet his burden of showing that the verdict reached by the jury would reasonably likely have been different had his trial counsel brought out the claimed differing versions of [A.C. and I.C.]. Strickland, supra, 466 U.S. at [p.] 696.

(3) Trial Counsels Failure to Cross-examine Walker.

Appellant perfunctorily argues, Counsel did not cross-examine Detective Walker. [See Memorandum, p. 385, second full paragraph.]

(4) Trial Counsels Failures to Object.

Appellant argues, Instances of failure to object include . . . letting the prosecutor refer to a pretext tape belatedly found inadmissible by the court. [See Memorandum, p. 384, lines 23-28 through p. 385, lines 1-2.]

We have reviewed all of appellant arguments. As to each, the record sheds no light on why trial counsel failed to act in the manner challenged, counsel was not asked for an explanation, and we cannot say there simply could be no satisfactory explanation. Indeed, the trial courts well-reasoned memorandum provides ample reasons why, as to most if not all of appellants arguments, trial counsel might have failed to act in the challenged manner. We reject appellants claim that his trial counsel provided ineffective assistance of counsel.

2. The Trial Court Properly Denied Appellants Motion for a New Trial.

a. Pertinent Facts.

As mentioned, appellant filed a motion for a new trial, based on his trial counsels alleged ineffective assistance of counsel, and newly discovered evidence. Appellant concedes the ineffective assistance claims he made in the motion are the same as those he has made in connection with his independent ineffective assistance contention in this appeal. The following facts were presented at the hearing on the motion for a new trial.

(1) Defense Evidence.

A.C. and I.C. each testified to the effect that they lied at trial and appellant had not touched them inappropriately. They testified they were angry at appellant because he had hit them, and that L.G. had told them to lie and state that appellant had molested them.

(2) Peoples Evidence.

The social worker for A.C. and I.C. testified that their mother and Olga Castillo had unmonitored contact with A.C. and I.C. in October 2005.^[1] Neither A.C. nor I.C. recanted to the social worker.

A psychologist specializing in the study of trauma victims testified that recantation by abuse victims is incredibly common. According to the psychologist, children of the ages of A.C. and I.C. recanted due to coercion, or because of real or perceived negative impact to themselves or others. L.G. testified she never discussed sex with A.C. or I.C., never suggested that they do something about the fact that appellant was beating them, and first learned from Walker that A.C. and I.C. had made a separate report of sexual abuse by appellant.

(3) The Courts Ruling.

In the memorandum and order, the trial court noted that the appellate court in People v. Minnick (1989) 214 Cal.App.3d 1478 (Minnick) said, inter alia: The role of the trial court in deciding a motion for new trial based upon a witnesss recantation is to determine whether the new evidence is credible, i.e., worthy of belief by the jury. (Id. at p. 1482.) The trial court in the present case observed that in Minnick (a case in which the appellate court affirmed the trial courts order granting a new trial), the appellate court stated,  This is not the kind of case where you can say that just watching [the witness] on the stand, listening to her, that her credibility is greater at one time than it is at the other.  (Id. at p. 1483.)

Later in the memorandum, the trial court in the present case, ruling on appellants claim that the motion for a new trial should be granted based on newly discovered evidence, distinguished the present case from Minnick. The trial court stated, Unlike the Minnick trial court, this court can and does find that the credibility of the complaining witnesses [A.C. and I.C.] was greater at trial than during the new trial motion proceeding . . . . During the new trial motion proceeding, both [A.C. and I.C.] displayed a dull and mechanical affect. [A.C.] essentially denied that she had been talking to a therapist while [I.C.] plausibly disclosed that both she and her sister had been seeing a therapist for some months. The account given by each of them with regard to [L.G.s] influence on them was implausible to the point of outlandishness. The court finds that their recanting testimony is not credible.

b. Analysis.

Appellant claims the trial court erred by denying his motion for a new trial, which was based on ineffective assistance of his trial counsel and newly discovered evidence. We disagree.

The ineffective assistance basis for appellants motion for a new trial consisted of the issues he has raised in connection with his first contention in this appeal. To that extent, for the reasons expressed in part 1 of our Discussion, we conclude the trial court did not err by denying appellants motion for a new trial.

The newly discovered evidence basis for appellants motion for a new trial was the recantation of A.C. and I.C. at the hearing on the new trial motion. We have set forth the pertinent facts, including the trial courts ruling on the motion to the extent it was based on newly discovered evidence. A trial court has broad discretion to grant or deny a motion for a new trial. (People v. Seaton (2001) 26 Cal.4th 598, 693.) Unless a manifest and unmistakable abuse of discretion clearly appears, the trial courts ruling on such a motion will not be disturbed. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Moreover, a motion for a new trial based on the ground of newly discovered evidence is looked upon with disfavor. (People v. Shoals (1992) 8 Cal.App.4th 475, 485-486.) We conclude the trial court did not err by denying appellants motion for a new trial.

3. The Abstract of Judgment Must Be Corrected.

The trial court sentenced appellant to prison for 45 years to life, consisting of three consecutive terms of 15 years to life on each of counts 1, 10, and 12. The court imposed concurrent terms of 15 years to life as to the remaining counts. In particular, the court ordered that appellant serve counts 2 through 9 concurrently with count 1, serve count 11 concurrently with count 10, and serve counts 13 through 15 concurrently with count 12.

However, the abstract of judgment reflects the court sentenced appellant to prison for merely 15 years to life. In particular, page 1 of the abstract reflects that the trial court sentenced appellant to prison for 15 years to life on counts 1-15. Pages 1 and 2 of the abstract reflect that a jury convicted appellant on counts 1 through 15, and that the court sentenced him to concurrent (capitalization omitted) terms as to each of counts 2 through 15, resulting in a total (capitalization omitted) of 15 years to life. Page 2 of the abstract similarly reflects that the total time imposed on this attachment page (capitalization omitted) is 15 years to life.

As respondent observes, the abstract of judgment must be corrected to reflect the sentence imposed by the trial court. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.)

DISPOSITION

The judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting that the trial court sentenced appellant to prison for 45 years to life, consisting of three consecutive terms of 15 years to life as to each of counts 1, 10, and 12, and reflecting the trial courts concurrent sentences as to the remaining counts.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] We note the jury convicted appellant in the present case in August 2005. The unmonitored contact occurred after that and, still later, appellant filed the motion for a new trial.