People v. Montoya

• Decision Date: 18 April 2007
• Docket Number: No. D049602.,No. D049635.,D049602.,D049635.
• Citation: 149 Cal.App.4th 1139,57 Cal.Rptr.3d 770
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Enrique MONTOYA, Defendant and Appellant. In re Enrique Montoya on Habeas Corpus.

57 Cal.Rptr.3d 770

149 Cal.App.4th 1139

The PEOPLE, Plaintiff and Respondent, v. Enrique MONTOYA, Defendant and Appellant.

In re Enrique Montoya on Habeas Corpus.

No. D049602.

No. D049635.

Court of Appeal, Fourth District, Division 1.

April 18, 2007.

Marc Elliot Grossman, Upland, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P.J.

Enrique Montoya was found guilty of continuous sexual abuse of a child in violation of Penal Code¹ section 288.5, subdivision (a), aggravated sexual assault of a child (oral copulation) in violation of section 269, subdivision (a)(4), aggravated sexual assault of a child (sodomy) in violation of section 269, subdivision (a)(3), aggravated sexual assault of a child (forcible penetration) in violation of section 269, subdivision (a)(5), and dissuading a witness from testifying in violation of section 136.1, subdivision (a)(1). He was sentenced to 64 years to life in prison; a total indeterminate sentence of 45 years to life and a total determinate sentence of 19 years. Montoya appeals, arguing he was denied his Sixth Amendment rights because his counsel's pretrial performance amounted to prejudicial ineffective assistance of counsel, which subsequently led to the admission of evidence from a witness he argues was likely incompetent.

Montoya also petitions for a writ of habeas corpus. In the petition, he contends he received ineffective assistance of counsel because his counsel failed to pursue a "taint hearing" to determine the complaining witness's competency and credibility prior to trial.²

BACKGROUND

A. Undisputed Facts

Rita A. had several children, including Christina who was born in April 1993. During the summer of 1999, Rita and her children moved in with appellant and his mother in Las Vegas. In August 2000, appellant, Rita and her children moved to San Bernardino County where they lived with family for a few months. In October 2000 Rita and her children moved into a home of their own. Early in 2001 Rita gave birth to a daughter, Martha. Appellant was Martha's father.

Appellant, Rita and the children lived together in San Bernardino County until April 2002 when they moved back to Las Vegas to live with Rita's mother. Two to three weeks later, appellant moved out of the house. When Rita and appellant lived together between August 2000 and April 2002, appellant stayed home with the children while Rita worked afternoons and evenings.

In September 2002 Rita and her children moved back to San Bernardino County but did not live with appellant. At that point in time, appellant lived with his sister in Los Angeles but came to Rita's home to pick up and visit Martha.

B. Prosecution Case

The principal prosecution witness was Christina. According to Christina she was approximately eight years old when appellant would awaken her while Rita was at work and take her into the living room where he touched and licked her vagina, rubbed his penis against her vagina and anus, and forced her to lick his penis. While touching Christina, appellant would masturbate to ejaculation, telling her he was "jacking off." Once, appellant tried to penetrate Christina's anus with his penis and refused to stop when Christina said it hurt. These acts occurred more than once a week and at least 10 times. If Christina tried to pull away, appellant forced her to continue, sometimes pushing her head onto his penis. One time when Christina resisted, appellant hit her, and on other occasions he threatened to hurt her if she did not do what he wanted.

In November 2003, while appellant was at their house visiting Martha, Rita needed to go to the store. Christina "flipped out" because she did not want to be left at home with appellant. However, Rita made Christina stay at home, and after she left appellant took Christina into the bathroom where he removed her pants and put his mouth on her vagina. Christina told appellant to stop, but he refused.

As a result of appellant's threats to kill her if she told anyone, Christina did not come forward with these allegations for a long time. However, on May 2, 2004, because she was afraid appellant would subject her three-year-old sister to the same treatment, Christina told her mother about appellant's sexual behavior and threats. Rita called the police the next day, and that evening Christina was interviewed by Officer DeLucia. Christina had requested that John Murlless, the pastor of her church, be present at the interview. Murlless said Christina was "very calm, matter of fact, [and] straight to the point" during the interview and that she provided answers to the officer's questions spontaneously.

A few days later, Christina was also interviewed by Detective Wilson. She told Wilson how appellant had touched and placed his mouth on her vagina, and how he made her touch and place her mouth on his penis. She also said that appellant had inserted his fingers into her vagina.³ She also told Wilson about the incident that occurred while Rita was at the store and that she had not told anyone about appellant's behavior because of appellant's threats. As a result of this information, Wilson decided to use Christina to make a "pretext phone call" to the appellant in an attempt to get admissions from him.

During the call Christina told appellant she had run away and was thinking about reporting what appellant had done to her. Appellant replied: "Why? Don't do that.... [W]hy you gonna do all that? They'll put me in jail for the rest of my life? They'll kill me. You want them to kill me?" When Christina mentioned appellant making her put her mouth on his penis, appellant said: "Don't say nothing, ok? You don't have to worry. Nothing, nothing, why you bring it up?" Christina told appellant she did not like the things he had done to her, and appellant replied: "I'm sorry.... Please forgive me, forgive me...." Appellant also promised that he would not do it anymore and that he would not make Christina watch him jack off anymore. Appellant also promised Christina he would not hurt Martha and told her he was not like that anymore and that he now went to church.

As soon as the call was over, appellant was contacted by Detective Lomeli, who had been waiting outside appellant's house. Lomeli confronted appellant with the allegation of him placing his penis in Christina's mouth. In response appellant denied it at times and did not say anything at other times. Appellant also told Lomeli that he was not thinking straight and could not remember. Lomeli also used a "ruse" when talking to appellant, which involved Lomeli telling appellant that foreign DNA had been found in Christina's mouth and that Wilson was going to compare it to appellant's DNA. When asked to explain how appellant's DNA could be found in Christina's mouth, appellant stated that Rita had caught Christina sucking on a dildo.

C. Defense Case

Appellant testified that he had a normal sex life with women his age or older and was never attracted to children. Appellant denied ever waking Christina and taking her to the living room, removing her clothes, fondling her or engaging in sex acts with her. He believed he and Christina "had a good relationship as in father and daughter." Appellant described the breakdown of his relationship with Rita and how she limited his ability to see Martha. After going to court, appellant was granted twice monthly visits with Martha. At times, appellant was late returning Martha because of traffic and Rita threatened that she would stop him from seeing Martha. On one occasion, appellant reported Rita to Child Protective Services because he believed she was spanking Martha with a paddle. Appellant denied visiting Martha in November 2003.

With respect to the pretext phone call, appellant said he did not know what Christina was talking about because there was a lot of static on the line. Appellant believed Christina might have been referring to instances when she would sneak into Rita's bedroom and observe Rita and appellant having sex or when Christina would walk in on them in the shower, while appellant was shaving Rita's privates. Appellant stated that Christina interfered with his sex life with Rita, and at times he had to tie Christina's bedroom door shut so she would not interrupt. When appellant was asked why he commented about never seeing Martha again, he explained that because of the static, he was not sure what Christina was saying but thought he might get in trouble if Christina ever told anyone what she saw appellant and Rita doing. Appellant tried to explain his comment about being put in jail for the rest of his life as relating to messages left on Rita's answering machine regarding Child Protective Services. When asked to explain his response to Christina's comment about making her put her mouth on his penis, appellant responded that because of the static is was hard for him to hear. When appellant apologized for making Christina watch him jack off, he believed that she was referring to when she saw him and Rita having sex on the couch. Finally, when appellant asked Christina to forgive him, he claimed it was because he and Rita were not married and were kicked out of the church.

Appellant's sister testified regarding his "fatherlike" relationship with his nieces and nephews and his reputation for not molesting children. She also stated she never witnessed any inappropriate behavior between appellant and Christina while they lived with her or when she visited Rita's home and that there was no animosity between Christina and appellant. She also testified that Rita had called on occasion upset about Martha. Appellant's cousin, whose house Rita and appellant lived at for a while, testified that she did see Christina in the...