People v. Leatherwood CA1/5 ( 2022 )

Filed 1/27/22 P. v. Leatherwood CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A159498
JASON LEATHERWOOD,
Defendant and Appellant.
(Sonoma County
Super. Ct. No. SCR-699215-1)
Jason Leatherwood appeals after a jury convicted him of
forcible rape (Pen. Code, § 261, subd. (a)(2)) and the trial court
sentenced him to a six-year prison term. Leatherwood asserts
the trial court committed instructional error and that his trial
counsel was constitutionally ineffective. We affirm because he
demonstrates no prejudicial error.
BACKGROUND
A.
Jane Doe and Leatherwood dated for about five years.
They lived together—in Doe’s home—for three of those years.
Before meeting Leatherwood, Doe had been sexually assaulted,
when she was a teenager. She testified that she told
Leatherwood about the assault and that she remained
traumatized.
1
Doe and Leatherwood’s relationship was unstable from the
beginning. They frequently argued and sometimes their fights
turned physical. Doe repeatedly asked Leatherwood to move out
over the course of their relationship. But Leatherwood ignored
her.
On one occasion, in March 2015, Leatherwood and Doe
argued after attending a work party. Doe testified she
complained to Leatherwood that he had not introduced her to
anyone and he began “screaming.” Doe said she became
particularly scared when Leatherwood tried to open the
passenger door while driving her home on the freeway. Once
home, Doe slapped Leatherwood. He called the police and,
although she attempted to explain that she slapped him because
she felt both angry and threatened, she was arrested. No charges
were filed.
After Doe’s arrest, Leatherwood temporarily moved out.
She let him move back in because he made her feel guilty and
“crazy.” Thereafter, he periodically threatened to call the police
when she was emotional. Doe testified that, after her arrest,
Leatherwood mostly slept in a guest bedroom. She continued to
have sex with Leatherwood but on some occasions it was
“[a]gainst [her] wishes.” She described Leatherwood ignoring her
statements that she did not want to be intimate with him and
said she eventually gave in because she believed it was her “duty”
to please him. The sex was “[r]ough” and “violent.”
On August 10, 2016, Leatherwood returned from a
vacation, and ignored Doe’s renewed request to move out. That
night, Doe went to sleep alone in her locked bedroom.
Leatherwood broke in, ignored her demands that he leave, and
got in bed (naked) with her. She fled, driving to Leatherwood’s
father’s home—who she asked to help remove Leatherwood from
her home. Leatherwood remained in the house but the two did
not talk for a few days.
2
On August 14, 2016, Doe drove to a picnic. Although he
had not been invited, Leatherwood followed her there. Doe
testified that she drank no more than a glass of wine at the picnic
and that Leatherwood drove them both home because she was
tired.
At home, Doe changed into a bathrobe and the two sat on
the couch—eating pizza and drinking wine. Doe decided to go to
bed after having only a couple sips of wine. She testified that
Leatherwood followed her, grabbed her by the shoulders, pushed
her into her room, tossed her onto the bed, and ignored Doe’s
demand to “leave [her] alone.”
Leatherwood was naked. He got on top of Doe, grabbed her
wrists and hair, and then held her wrists over her head. He said,
“he had enough time invested with [Doe] and that it was time to
get rid of [her].” While restraining her hands and laying on top of
her, Leatherwood opened Doe’s robe and touched her vagina. At
the same time, he yelled that he wanted to know how she was
raped and “if that’s how [she] like[s] having sex.” Doe repeatedly
told him to stop and struggled (unsuccessfully) to free herself.
Continuing to use his body weight to hold Doe down,1
Leatherwood retrieved a dildo from the night stand, and pushed
it into her anus. Doe told him that “it hurt” and to “get it out.”
He also used a vibrator on her clitoris. Doe testified that the
vibrator was not plugged into the wall. She eventually managed
to free one hand and removed both devices. Leatherwood then
began having intercourse with her. He continued to yell and
accused her of having sex with her brother. At this point, Doe
lost the strength to fight and simply waited until he ejaculated.
1Leatherwood was six feet, two inches tall and weighed
about 220 pounds. Doe was about five feet, six inches tall and
weighed approximately 160 pounds.
3
Doe testified that, before being raped on August 14, she last
had sexual intercourse with Leatherwood in May 2016.
B.
The following day, Doe went to the Petaluma Police
Department. Doe reported being raped by her boyfriend on
August 14 and that she had also been sexually assaulted by him
before then. However, she told the investigating detective that,
with the exception of the sex assaults and the March 2015
incident, they had no further history of domestic violence.
The initial statement Doe gave to police was inconsistent
with her testimony at trial in some additional ways. She told the
detective that July 2016 was the last time she and Leatherwood
had consensual sex. She also reported drinking four large glasses
of wine at the picnic and that she asked Leatherwood to drive
home because she was intoxicated. She also said that she
stopped the vibrator Leatherwood used by unplugging it from an
electrical outlet. Doe attributed these inconsistencies to the
difficulty she experienced in talking about the assault.
Doe made two pretext calls with the detective.
Leatherwood did not make any admissions and denied having sex
with her the night before. He said that she had been drunk and
“pass[ed] out.”
Doe also went to the hospital where she underwent a
forensic rape exam. The examiner found four bruises inside Doe’s
vagina, two near her clitoris, and one in her rectum. The
examiner, who was deemed an expert on interpreting such
physical findings, testified that the bruises were consistent with
Doe’s account and could have been caused by blunt force trauma.
They were also consistent with consensual sex. Doe’s bruises
were to mucosal tissue, which typically heal “within a couple of
days” and are unlikely to be found after 72 hours.
4
Doe’s examiner took a vaginal swab that showed the
presence of male DNA. When that male DNA profile was
compared to a known sample from Leatherwood, it was
determined that he was the source of the DNA found in Doe’s
vagina. According to the testifying criminalist, intercourse likely
occurred no later than three days before the sample was
obtained.
C.
Leatherwood’s ex-girlfriend and the mother of his children
testified (pursuant to Evidence Code sections 1108 and 1109)
that, towards the end of their relationship, Leatherwood forced
her to have sex, against her will, approximately three to five
times.2 In the first instance, after she declined sex for a couple of
days, she woke up to find Leatherwood on top of her, pinning her
arms down, calling her names, and inserting his penis in her
vagina. He ignored her demands to stop, which is how she
became pregnant with their second child.
Leatherwood’s ex-girlfriend told him to leave in June 2009.
On that occasion, one of their daughters had been sleeping
between them. Leatherwood reached over their daughter to
touch his ex-girlfriend, but she pushed him away and rolled over.
When she felt movement behind her back and turned around, she
saw Leatherwood taking his hand away from touching their
daughter. Her trial testimony was the first time she mentioned
her belief that Leatherwood had inappropriately touched their
child to anyone. Although Leatherwood’s ex-girlfriend obtained a
lifetime restraining order against him during custody
proceedings, she never mentioned any sexual assault.
Doe and Leatherwood’s ex-girlfriend had met before—
because Doe supervised Leatherwood’s visits with his children on
2 Undesignated statutory references are to the Evidence
Code.
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three occasions. However, the two women never spoke about this
case.
D.
Leatherwood testified, in his own defense, that he and Doe
had sex on August 13 but not on August 14.
On the latter date, Doe “passed out” on her bed after the
picnic, where she became too intoxicated to drive. When
Leatherwood sat down on the bed, she woke up, called him
names, and began striking him. He grabbed her hands. While he
was still holding her wrists, she tried to knee him in the groin,
pulled him down on top of her on the bed, yelled, and then passed
out “cold.”
The next day, Doe called him, asking odd questions. After
that, he went to stay at his father’s house because he did not
want “drama.”
A few days later, Leatherwood spoke to the investigating
detective. During the recorded interrogation, Leatherwood gave
an account largely consistent with his testimony at trial, except
that he told the detective, at least eight times, that the last time
he and Doe had sex was before his vacation in the first week of
August. At trial, Leatherwood explained this discrepancy was
due to him not sleeping the night before the interview. In
rebuttal, the investigating detective testified that Leatherwood
did not appear tired. Nor did Leatherwood attempt to correct
misstatements.
With respect to the events preceding Doe’s March 2015
arrest, Leatherwood testified that she opened the passenger door
of his work truck, three or four times. He feared that someone
would get hurt if “a very large ratchet wrench on the floor . . . on
her side” fell out on the freeway.
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Leatherwood denied hitting Doe. He also denied ever
sexually or physically assaulting his ex-girlfriend. He moved out
when his ex-girlfriend asked for an open relationship, which led
to a long and contentious custody battle.
Several character witnesses testified that they do not know
Leatherwood to be physically or emotionally abusive to women.
E.
The jury convicted Leatherwood of forcible rape but
acquitted him on two additional counts of forcible sexual
penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)(A)).
He was sentenced to six years in prison.
DISCUSSION
A.
Leatherwood argues that his trial counsel provided
ineffective assistance by failing to object to his ex-girlfriend’s
testimony—disclosed for the first time at trial—that suggested
Leatherwood molested his daughter. He contends the evidence
was irrelevant and prejudicial and thus would not have survived
a section 352 challenge. We find no ineffective assistance or
prejudice.
1.
Under both the United States and California Constitutions,
a criminal defendant has the right to the effective assistance of
counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-686
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215
(Ledesma).) To establish ineffective assistance of counsel, a
defendant must show (1) counsel’s performance was so deficient
that it fell below an objective standard of reasonableness, under
prevailing professional norms, and (2) the deficient performance
was prejudicial, rendering the results of the trial unreliable or
7
fundamentally unfair. (Strickland, supra, at pp. 688, 692;
Ledesma, supra, at pp. 216-217.)
“[W]e begin with the presumption that counsel’s actions fall
within the broad range of reasonableness, and afford ‘great
deference to counsel’s tactical decisions.’ [Citation.] Accordingly,
we have characterized defendant’s burden as ‘difficult to carry on
direct appeal,’ as a reviewing court will reverse a conviction
based on ineffective assistance of counsel on direct appeal only if
there is affirmative evidence that counsel had ‘ “ ‘no rational
tactical purpose’ ” ’ for an action or omission.” (People v. Mickel
(2016) 2 Cal.5th 181, 198.) “ ‘ “[[I]f] the record on appeal 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,” the claim on appeal must be rejected.’
[Citations.] A claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding.”
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Generally, prejudice must also be affirmatively
demonstrated. (Ledesma, supra, 43 Cal.3d at p. 217.) Prejudice
is shown when there is a reasonable probability that, but for
counsel’s ineffective representation, the result of the proceeding
would have been different. (Strickland, supra, 466 U.S. at p.
694.) A reasonable probability is a probability sufficient to
undermine confidence in the outcome. (In re Hardy (2007) 41
Cal.4th 977, 1018.)
2.
Failure to object to evidence of questionable admissibility
may constitute inadequate assistance of counsel. (Ledesma,
supra, 43 Cal.3d at p. 224.) However, “ ‘[a]n attorney may choose
not to object for many reasons, and the failure to object rarely
establishes ineffectiveness of counsel.’ ” (People v. Avena (1996)
13 Cal.4th 394, 421.)
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The record before us does not directly disclose why
Leatherwood’s trial counsel did not object to his ex-girlfriend’s
testimony that he inappropriately touched (or attempted to
touch) their daughter. We nonetheless agree with the People
that Leatherwood’s trial counsel could have made a reasonable
tactical decision to decline to object. The evidence was not clearly
inadmissible under sections 352 and 1108. (See § 352 [“court in
its discretion may exclude evidence if its probative value is
substantially outweighed” by likelihood of undue delay, undue
prejudice, or confusion], italics added; People v. Jones (2012) 54
Cal.4th 1, 50 [“[a]dmissibility under . . . section 1108 does not
require that the sex offenses be similar; it is enough the charged
offense and the prior crimes are sex offenses as defined by the
statute”].) And the challenged evidence reflected negatively on
Leatherwood’s ex-girlfriend’s credibility.
In fact, on cross-examination, defense counsel elicited
testimony from Leatherwood’s ex-girlfriend that made clear that
she had never before told anyone about the incident with her
daughter. Defense counsel capitalized on that point, in closing
argument, by telling the jury: “[The prosecutor] said on cross-
examination that [Leatherwood’s ex-girlfriend] accused [him] of
making up stories as time went by. I almost don’t want to get
into this, but some of you may have heard of the term of phrase
the pot calling the kettle black. [Leatherwood’s ex-girlfriend] did
the exact same thing. She never told the Judge anything about
sexual assault. She actually told you for the first time here last
week not only did [Leatherwood] sexually assault her, but the
day that she kicked [him] out was the day where she thought [he]
was touching his child inappropriately. . . . That is so outside of
the scope of what would be reasonable. If you are trying to keep
[Leatherwood] from having access to your children, don’t you
think the first thing you would ever tell the Judge is he tried to
touch my child in a sexually inappropriate way? Why would you
wait until the actual trial when you’re looking at the whites of
9
the eyes of the twelve jurors that are going to determine his fate?
Why do you wait? You don’t. You’re lying.” (Italics added.)
Given the importance of his ex-girlfriend’s testimony (as a
whole) to the prosecution’s case, Leatherwood’s trial counsel may
have reasonably decided that attacking her credibility was a
better tactical move than objecting. Accordingly, Leatherwood
fails to establish ineffective assistance of counsel on appeal.
3.
Furthermore, Leatherwood has not shown that any
assumed ineffective assistance was prejudicial.
Leatherwood’s ex-girlfriend’s testimony that he
inappropriately touched (or attempted to touch) his daughter was
only one small part of the section 1108 evidence. Assuming the
jury believed the balance of his ex-girlfriend’s testimony,
admission of which is not challenged on appeal, the jury was
entitled to find that Leatherwood has a propensity to commit
domestic violence and sex offenses. (See §§ 1108, subd. (a), 1109,
subd. (a).) Indeed, the testimony was striking precisely because
it was so similar to the rape at issue here: during a tumultuous
relationship, Leatherwood forced his girlfriend to have sex
against her will multiple times, including at least once when he
pinned her arms down, verbally abused her, and ignored her
demands to stop.
This was not simply a “he said-she said” case. In addition
to evidence suggesting Leatherwood raped his prior girlfriend,
Doe’s testimony—that Leatherwood violently raped her on
August 14—was corroborated by the DNA and other physical
evidence, her prior statement to the investigating detective, and
Leatherwood’s inconsistent statements regarding when the two
last had sexual intercourse. Unlike Leatherwood’s inconsistent
statements, the conflicts between Doe’s testimony and her prior
10
statements to police all related to the counts on which
Leatherwood was acquitted or tangential matters.
Given the strength of the case against him, it is not
reasonably probable that the jury would have reached a more
favorable result absent counsel’s assumed ineffective assistance.
B.
Leatherwood also insists the evidence does not support the
trial court’s decision to instruct the jury with CALCRIM No. 361.
We assume he is right, but conclude any error was harmless.
1.
The trial court instructed the jury: “If the defendant failed
in his testimony to explain or deny evidence against him, and if
he could reasonably be expected to have done so based on what he
knew, you may consider his failure to explain or deny in
evaluating that evidence. Any such failure is not enough by itself
to prove guilt. The People must still prove the defendant guilty
beyond a reasonable doubt. [¶] . . . [I]f the defendant failed to
explain or deny, it is up to you to decide the meaning and
importance of that failure.”
2.
We review claims of instructional error de novo (People v.
Mitchell (2019) 7 Cal.5th 561, 579), considering the instructions
in context. (People v. Burton (2018) 29 Cal.App.5th 917, 924.)
“ ‘It is an elementary principle of law that before a jury can be
instructed that it may draw a particular inference, evidence must
appear in the record which, if believed by the jury, will support
the suggested inference.’ ” (People v. Saddler (1979) 24 Cal.3d
671, 681 (Saddler).)
Our Supreme Court has instructed that CALCRIM No. 361
should be given only when a testifying defendant completely fails
to explain or deny incriminating evidence or claims to lack
11
knowledge despite the evidence showing that defendant could
reasonably be expected to have such knowledge. (People v. Cortez
(2016) 63 Cal.4th 101, 117.) “The instruction acknowledges to the
jury the ‘reasonable inferences that may flow from silence’ when
the defendant ‘fail[s] to explain or deny evidence against him’ and
‘the facts are peculiarly within his knowledge.’ ” (Ibid.)
3.
Even if we assume that Leatherwood is correct that no
evidence supported the instruction, any error was harmless on
this record.
Contrary to Leatherwood’s assertions, error in giving the
instruction does not implicate a defendant’s constitutional rights
and prejudice is shown only if it is reasonably probable that a
more favorable result would have otherwise been reached.
(Saddler, supra, 24 Cal.3d at pp. 679-681, 683; People v.
Grandberry (2019) 35 Cal.App.5th 599, 610-611; People v. Lamer
(2003) 110 Cal.App.4th 1463, 1471-1472 (Lamer).)
As we explained above, the evidence supporting
Leatherwood’s guilt on the forcible rape count was strong.
Additionally, the impact of CALCRIM No. 361 was mitigated by
the language of the instruction itself, which does not direct the
jury to draw adverse inferences against the defendant. In fact,
CALCRIM No. 361 instructs that a failure to explain or deny, by
itself, is not a sufficient basis upon which to infer guilt. The
instruction also emphasizes the People’s burden to prove guilt
beyond a reasonable doubt and leaves the meaning and
importance of the defendant’s failure to explain or deny to the
jury.
Any possible prejudice was further mitigated by CALCRIM
No. 200, which instructed the jury that “[s]ome of these
instructions may not apply, depending on your findings about the
facts” and to “follow the instructions that do apply to the facts as
12
you find them.” (See Saddler, supra, 24 Cal.3d at p. 684; Lamer,
supra, 110 Cal.App.4th at p. 1472.) We presume the jury
followed this instruction. (People v. Fuiava (2012) 53 Cal.4th
622, 669.)
It is not reasonably probable Leatherwood would have
obtained a more favorable verdict had CALCRIM No. 361 not
been given. (See Lamer, supra, 110 Cal.App.4th at p. 1472
[“courts have routinely found that the improper giving of [the
precursor to CALCRIM No. 361] constitutes harmless error”].)
C.
Finally, Leatherwood contends that the consciousness of
guilt instruction (CALCRIM No. 362) violates due process by
reducing the People’s burden of proof and allowing the jury to
draw irrational inferences. His claim lacks merit.
The trial court instructed the jury: “If the defendant made
a false or misleading statement before this trial relating to the
charged crime, knowing the statement was false or intending to
mislead, that conduct may show he was aware of his guilt of the
crime and you may consider it in determining his guilt. [¶] If you
conclude that the defendant made a statement, it is up to you to
decide its meaning and importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.”
Our Supreme Court has repeatedly upheld CALCRIM No.
362 (and its predecessor instruction) against identical challenges.
(See, e.g., People v. Howard (2008) 42 Cal.4th 1000, 1024-1025;
People v. Holloway (2004) 33 Cal.4th 96, 142.) “The inference of
consciousness of guilt from willful falsehood or fabrication . . . is
one supported by common sense, which many jurors are likely to
indulge even without an instruction.” (Holloway, supra, at p.
142.) The “ ‘cautionary nature’ ” of the instruction benefits the
defense, by admonishing the jury to be cautious in considering
13
“ ‘evidence that might otherwise be considered decisively
inculpatory.’ ” (Ibid.)
There is similarly no support for Leatherwood’s position
that, before the trial court may give CALCRIM No. 362, the
inference a defendant lied must be conclusively established. (See
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [rejecting
same argument].) “[T]here need only be some evidence in the
record that, if believed by the jury, would sufficiently support the
suggested inference.” (Ibid.) The record contains substantial
evidence to support the inference Leatherwood lied to police
about the date he and Doe last had sex. CALCRIM No. 362
“properly [leaves] it for the jury to determine whether [a prior]
statement to police was false or deliberately misleading, and if so,
what weight should be given to that evidence.” (People v.
McGowan (2008) 160 Cal.App.4th 1099, 1104.)
The trial court also gave CALCRIM No. 226, which
instructed the jury that it may consider inconsistent statements
in evaluating the credibility of any witness (including Doe).
CALCRIM No. 362 is not an improper pinpoint instruction.
(People v. Kipp (1998) 18 Cal.4th 349, 375; People v. McGowan,
supra, 160 Cal.App.4th at pp. 1103-1104.)
DISPOSITION
The judgment is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
SIMONS, J.
A159498
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