People v. Aikens CA4/2

• Court: California Court of Appeal
• Decided: July 21, 2021
• Docket: E073943
• Status: Unpublished

Opinion

Filed 7/21/21 P. v. Aikens CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073943

v. (Super.Ct.No. FMB17000171)

RAFAEL ARI AIKENS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed.

Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson and

Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.

While defendant was in bed with his sometime girlfriend, he shot her in the head

twice, killing her. Her mother came running to her bedroom; he shot her five times,

1 killing her, too. He then entered the bedroom where the girlfriend’s 10-year-old daughter

was lying in bed, terrified. Defendant had run out of bullets. However, he pointed the

gun at the child and told her, “Shut up and go to sleep.” She responded falsely, “I’m only

six,” so he would think she did not know how to call 911 and would not hurt her. He

seemed to be looking for something on her dresser. Then he left.

Defendant was a Marine stationed on the base in Twentynine Palms. The next

day, he told a fellow Marine that he had killed two people. He asked a different fellow

Marine to take his gun home and to clean it. He added, “If I told you [why], you

wouldn’t believe me. . . . Just know it’s to the first degree.” One bullet and one bullet

casing found at the scene were both fired from defendant’s gun.

The killer took the girlfriend’s cell phone away with him. The police later tracked

its movement from her home to the Marine base. The daughter’s description of the killer

did not entirely match defendant. However, she identified defendant at trial. The motive

for the killing is unknown.

Defendant took the stand and explained or denied most of the evidence against

him. For example, he claimed that he gave his gun to his friend on the day before the

shooting. However, he was impeached with his inconsistent statements to the police.

A jury found defendant guilty of two counts of first-degree murder (§§ 187, subd.

(a), 189),1 with enhancements for intentionally discharging a firearm and causing death

(§ 12022.53, subd. (d)) and with a multiple murder special circumstance (§ 190.2, subd.

1 These and all further statutory citations are to the Penal Code.

2 (a)(3)). He was sentenced to two consecutive terms of life without the possibility of

parole, plus two consecutive terms of 25 years to life, along with the usual fines, fees, and

ancillary orders.

Defendant contends:

1. The prosecutor committed misconduct by impugning defense counsel’s

integrity in closing argument.

2. The trial court erred by imposing a $10,000 restitution fine without holding a

hearing on defendant’s ability to pay.

Finding no error, we will affirm.

I

IMPUGNING DEFENSE COUNSEL

Defendant contends that the prosecutor committed misconduct by impugning

defense counsel’s integrity in closing argument.

A. Additional Factual and Procedural Background.

In his rebuttal closing argument, the prosecutor said:

“[T]he instruction on witnesses becomes important. . . . Because the defense put

up, most importantly, the defendant himself. And so you make a decision, who do you

believe? You look at things, and the instruction tells you, like, demeanor. . . .

“Look at the defendant’s demeanor when he was talking to his attorney. Did you

notice the play that was acted out up here? Did you notice that as he heard questions,

there were particular ones that he turned and looked all the way down? And did you see

3 his demeanor with me? It changed. ‘Cause his direct examination was a play, a

rehearsed play to try to get him out of this.”

Defense counsel objected that this was “improper argument.” When the trial court

overruled the objection, he added, “He’s saying it about me, your Honor.” The trial court

adhered to its ruling. Defense counsel said, “I’d like to be heard after [the prosecutor]’s

through.”

After the jury was sworn and retired, the trial court heard further argument.

Defense counsel said, “I think he was saying that I suborn perjury. That I gave him a

story, rehearsed it, and put him up for a story.” The trial court disagreed; it said, “I didn’t

take it the way you took it, that he was impugning you. I took it as he was impugning the

testimony as being rehearsed by your client.” It deemed defense counsel to have made a

motion for a mistrial, which it denied.

B. Discussion.

The People do not contend that defense counsel forfeited this contention. He did

object, and doughtily. While he did not request an admonition, “the failure to make such

a request is excusable where, as here, the defendant’s objection is immediately overruled.

[Citation.]” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323.)

“It is misconduct for the prosecutor in argument to impugn the integrity of defense

counsel or to suggest defense counsel has fabricated a defense. [Citations.]” (People v.

Cash (2002) 28 Cal.4th 703, 732.)

4 “‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury,

the defendant must show a reasonable likelihood the jury understood or applied the

complained-of comments in an improper or erroneous manner. [Citations.] In

conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging

rather than the least damaging meaning from the prosecutor’s statements.’ [Citation.]”

(People v. Seumanu (2015) 61 Cal.4th 1293, 1337.)

“We review the trial court’s rulings on prosecutorial misconduct for abuse of

discretion. [Citation.]” (People v. Peoples (2016) 62 Cal.4th 718, 792–793.)

Here, the trial court — having had the benefit of sitting through the trial, including

the closing arguments — concluded that the prosecutor had impugned defendant, but not

defense counsel. This was not an abuse of discretion.

The prosecutor made the remarks during a discussion of witness credibility and

demeanor. He did not even refer to defense counsel, except when he said, “Look at the

defendant’s demeanor when he was talking to his attorney.” (Italics added.) He then

pointed out that defendant’s demeanor changed on cross-examination. This just meant

that defendant did not expect his own attorney to challenge his concocted story; it did not

mean that his attorney had had a hand in concocting it.

His references to “a rehearsed play” and “the play that was acted out up here” are

most readily understood as meaning that defendant had rehearsed and defendant was

acting out a play. Even if defendant had gone over his testimony in advance with his

5 counsel, that would not mean defense counsel knew defendant’s answers were false. The

jury would have understood that these remarks did not implicate defense counsel.

Defense counsel had previously argued that, even though defendant lied to the

police, he testified truthfully on the stand: “He took an oath to tell the truth when he took

the stand. That’s a different ball game . . . . Grilled for a couple of hours yesterday.

Grilled some more today to tell you the truth. . . . [H]e did that because he wanted to

look you in the eye and tell you, I did not kill those two women.” It was appropriate for

the prosecutor to argue, in rebuttal, that defendant’s demeanor as a witness showed that

he was untruthful. To the extent that the prosecutor’s remarks were ambiguous, the trial

court could properly accept the more charitable interpretation.

Two cases are closely analogous, both named People v. Williams.

In People v. Williams (2013) 56 Cal.4th 630, the prosecutor said, “‘I gave a lot of

thought on how to proceed in my closing argument. I had a hard time sleeping last night

because part of me really wants to come in here and attack the defense for the methods

which they used to try and mislead you, deceive you, give you false insinuations. And I

started by writing out all the things that he had done from the beginning in his opening

statement, from the defendant, all the way back to when he started trying to falsify

evidence.’” (Id. at p. 672.)

The Supreme Court held that this was not misconduct: “Importantly, . . . the

prosecutor was referring to actions of both defendant and defense counsel. Although his

syntax was a bit awkward, the reference to falsifying evidence encompassed defendant’s

6 actions or actions that might reasonably be attributed to defendant.” (People v. Williams,

supra, 56 Cal.4th at p. 672.) It noted that witnesses had testified that the defendant had

asked them to fabricate or to destroy evidence. (Ibid.) It concluded: “The prosecutor’s

comments about defendant’s efforts to falsify evidence were founded on evidence in the

record and fell within the permissible bounds of argument. [Citation.]” (Ibid.)

In People v. Williams (2016) 1 Cal.5th 1166, the prosecutor pointed out that the

defendant had told police he did not know the victim; he contrasted this with defense

counsel’s assertion in opening statement that the defendant had had consensual sex with

the victim, who was then killed by a third party. (Id. at pp. 1187-1188.) He then said:

“‘What can we find, because that first one he wants to use doesn’t work. We got to

scramble to find something else. And that’s what we heard about from the defense, the

second best defense. Jesus, Williams, why didn't you come up with the best one the first

time. I thought I did. But he didn’t.” (Id. at p. 1188.)

The Supreme Court held: “The prosecutor’s comments did not cast aspersions on

defense counsel or imply that he was dishonest. Indeed, the prosecutor’s comments did

not even reference defense counsel, but instead focused on defendant’s changing story.

Thus, the comments were meant ‘to vigorously challenge the validity of [the] defense,’

given the clearly contradictory evidence and unsupported facts the defense presented.

[Citation.]” (People v. Williams, supra, 1 Cal.5th at p. 1189.)

7 As compared to the remarks in Williams and Williams, the prosecutor’s remarks

here were even less susceptible to a meaning that impugned defense counsel.

Accordingly, the trial court did not abuse its discretion.

II

THE IMPOSITION OF A RESTITUTION FINE

WITHOUT A HEARING ON ABILITY TO PAY

Defendant contends that the trial court erred by imposing a $10,000 restitution fine

(§ 1202.4) without holding a hearing on his ability to pay. Because his trial counsel did

not object to the fine, he also contends that this omission constituted ineffective

assistance of counsel.

Defense counsel forfeited the first contention by failing to object below. (People

v. Torres (2020) 47 Cal.App.5th 984, 991; see generally People v. Scott (1994) 9 Cal.4th

331, 353.) This is not a case in which the failure to object can be excused on the ground

that an objection would not have been supported by the law as it then stood. (See

generally People v. Perez (2020) 9 Cal.5th 1, 7.) Defendant’s contention is founded on

People v. Dueñas (2019) 30 Cal.App.5th 1157. Dueñas was decided in January 2019;

defendant was sentenced in October 2019. Moreover, even before Dueñas, a defendant

could object to the amount of a restitution fine, above the $300 minimum, based on

inability to pay. (People v. Case (2018) 5 Cal.5th 1, 53.)

Defendant’s second contention also fails because we cannot say there could be no

satisfactory explanation for defense counsel’s failure to object.

8 “To demonstrate ineffective assistance of counsel, [defendant] ‘must show that

counsel’s performance was deficient, and that the deficiency prejudiced the defense.’

[Citation.] On direct appeal, a finding of deficient performance is warranted where ‘(1)

the record affirmatively discloses counsel had no rational tactical purpose for the

challenged act or omission, (2) counsel was asked for a reason and failed to provide one,

or (3) there simply could be no satisfactory explanation.’ [Citation.] ‘[W]here counsel’s

trial tactics or strategic reasons for challenged decisions do not appear on the record, we

will not find ineffective assistance of counsel on appeal unless there could be no

conceivable reason for counsel’s acts or omissions.’ [Citation.]” (People v. Johnsen

(2021) 10 Cal.5th 1116, 1165.)

For all we know, defendant did have the ability to pay, and moreover, defense

counsel knew it. Defense counsel was retained, not appointed, raising a suspicion that

defendant could pay a substantial amount. Nevertheless, the trial court declined to award

presentence investigation costs, finding that defendant could not pay them. Defense

counsel may have reasoned that, if he objected to the restitution fine, the trial court might

find that defendant had the ability to pay both.

9 III

DISPOSITION

The judgment appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:

McKINSTER J.

RAPHAEL J.