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Counsel Has Discretion to Decide if a Defense is Viable

In the context of evaluating ineffective assistance of counsel (IAC), a defendant often claims that his or her attorney did not do something that defendant thinks would have made a difference to the outcome.  The defendant usually does not really understand if the outcome would be different, but will argue that he or she deserves a second chance nonetheless.
The Gist of this Article: An attorney has discretion to decide whether to argue a defense, based on his education and experience with what the attorney believes the judge or jury would believe.
Our office often receives phone calls explaining this scenario and asking if the caller can “re-open the case,” which often then leads to a discussion of a petition for a writ of habeas corpus based on an IAC argument.

This familiar type of phone call could have come from the family of Defendant John Joseph Montoya, who entered into a plea agreement in a horrendous sex case in Tulare County Superior Court.

Mr. Montoya, formerly a physical therapist, was charged with sexual penetration by a foreign object (Penal Code § 289(a)(1)(A)), sexual penetration by a foreign object of a person incapable of giving legal consent because of a mental disorder or developmental or physical disability (Penal Code § 289(b)), sexual battery (Penal Code § 243.4(a), lewd conduct by a caretaker upon a dependent person by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person (Penal Code § 288(b), and lewd conduct by a caretaker upon a dependent person (Penal Code § 288(c)). 

Mr. Montoya provided in-home physical therapy twice a week to T.M., an adult female who suffers from multiple sclerosis and is paraplegic.  Sometime in 2016, T.M. was at home with her mother, F.M., when Mr. Montoya dropped by unannounced.  He was wearing “medical scrubs” and a work badge.

Montoya entered T.M.’s bedroom, where she was lying, and closed the door.  At some point, he put his hand under her sweatpants and diaper and inserted his finger into her vagina for approximately three minutes. 

After Mr. Montoya left the residence, F.M. went into T.M.’s bedroom and noticed T.M.’s diaper looked “a little bit crooked.”  She also noticed that the curtains were closed.  F.M. asked T.M. if something was wrong and T.M. replied that Mr. Montoya “touched her down there.”

Pursuant to a plea agreement, he pled nolo contendere to lewd conduct by a caretaker upon a dependent person, a felony, and the remaining charges were dismissed.  He received a one-year jail sentence, of which 364 days were suspended, and three years of formal probation.  He would also have to register for life as a sex offender under Penal Code § 290.

Remarkably, Montoya moved to withdraw his plea, arguing that his attorney knew T.M. consented to Montoya touching her where he did, but did not present this as a defense.  The attorney further pressured him into taking the deal of probation because he otherwise would go to trial and most likely be convicted, leading to a prison term where Mr. Montoya would be severely beaten by other inmates as a convicted sex offender and possibly even sodomized by other inmates.  So, in fear of this, Mr. Montoya accepted the plea bargain, not knowing the victim had told investigators she consented to his conduct.  Therefore, Mr. Montoya argued his counsel was ineffective because he had him admit to a charge when consent is a defense.  Moreover, Mr. Montoya argued that his counsel was ineffective because he was no longer a caretaker for T.M. at the time because his employer, through whom he had first began treating T.M., was no longer on T.M.’s insurance plan, but Mr. Montoya continued treating her on T.M.’s request.

The trial court denied the motion to withdraw his plea based on IAC.  The Fifth Appellate District Court in Fresno denied the motion, finding that nothing in the language of Penal Code § 288(a) and (c)(2) indicates that lack of consent is an element of lewd conduct by a caretaker upon a dependent person.  See People v. Soto (2011) 51 Cal. 4th 229, 233 (“[T]here is no requirement that the lewd acts [proscribed by section 288, subdivisions (a) and (b)(1) be committed ‘against the will of the victim.’”). 

Moreover, assuming arguendo that consent could have been asserted as a defense, the evidence was far from substantially conclusive on the issue.  During an interrogation with a detective, defendant stated that T.M. consented to a “massage” “down there.”  At the very least, it is debatable that his lewd act, i.e., “placing one finger inside T.M.’s vagina and moving it in and out” could be characterized as a massage.  At the preliminary hearing, T.M. testified that she did not tell defendant no,” “didn’t tell him to stop,” and “understood everything that was happening."  She later explained that she was shocked at what was happening and because she was shocked, could not tell him to stop.

On this issue, T.M.’s longtime neurologist explained that T.M. suffers from “impaired cognitive abilities,” “is totally dependent on others” and “is no longer able to make legal decisions for herself due to advanced multiple sclerosis."

“Under such circumstances the paramount consideration of the lawyer is to determine whether it is reasonably probable that he could convince a jury of his version of the facts.”  In re Hawley (1967) 67 Cal. 2d 824, at 829.  Here, a reasonable attorney could have concluded that the jury would not have believed T.M. consented to the lewd act or had the capacity to do so.

In addition, a reasonable attorney could have concluded that defendant was a caretaker for the purposes of section 288.  The record indicates that Mr. Montoya showed up at T.M.’s house in “full scrubs,” with his work badge on and was working as a licensed physical therapist for Agency A and Agency B.  Montoya’s argument was that he was not T.M.’s caretaker, but a jury would not have been persuaded by such an argument.

We present this article because we often have clients suggest arguments that we regard with skepticism because we believe a jury would not agree.  This case shows that such a refusal to adopt the client’s arguments is not IAC.

The citation for the Fifth Appellate District Court ruling discussed above is People v. John Joseph Montoya (5th App. Dist., 2021) 68 Cal. App. 5th 980, 284 Cal. Rptr. 3d 18.

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