In re Anderson CA2/3 ( 2013 )

Filed 6/17/13 In re Anderson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re B232746
WILLIAM FRENCH ANDERSON, (Los Angeles County
Super. Ct. No. BA255257)
on
Habeas Corpus.
ORIGINAL PROCEEDINGS in habeas corpus. Michael E. Pastor, Judge.
Order to show cause discharged; petition for writ of habeas corpus denied.
Douglas W. Otto for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J.
Leszkay, Deputy Attorneys General, for Respondent.
_________________________
Petitioner William French Anderson was the appellant in People v. Anderson
(2012) 208 Cal.App.4th 851, which affirmed the judgment entered following his
conviction by jury of continuous sexual abuse of a child under the age of 14 years and
three counts of lewd act with a child under the age of 14 years. (Pen. Code, §§ 288.5,
288, subd. (a).) In addition to the appeal from the judgment, Anderson filed this writ
petition to raise ineffective assistance of counsel issues. After ordering the petition
and the appeal to be considered concurrently, we severed the matters to prevent
further delay of the appeal. We now consider Anderson‟s claim counsel rendered
ineffective assistance in failing to challenge the admissibility of a secretly recorded
conversation in which the victim confronted Anderson and requested an apology for
his years of abuse. We issued an order to show cause. Upon review of the evidence
in the record and before us by declaration, we conclude an evidentiary hearing is
unnecessary, deny the petition and discharge the order to show cause.
SUMMARY
From Anderson: “Anderson, a medical doctor and the founder and director of a
genetic research laboratory, sexually molested the daughter of an employee of the
laboratory from the time the child was in the fourth or fifth grade until the ninth grade.
Anderson coached the victim in competitive karate; she won national karate competitions
when she was in the fourth and fifth grades in 1997 and 1998. He also assisted her
academically. However, they frequently were alone together and he regularly committed
lewd acts upon her. The victim‟s testimony was generic in that she testified generally
about a continuing course of misconduct. E-mails Anderson sent her after the abuse
ended but before she decided to report him in April of 2004 corroborated her testimony.
Because Anderson indicated in his e-mails he would apologize to her in person, she
agreed to meet him outside a public library while carrying a recording device provided by
detectives. On July 1, 2004, she surreptitiously recorded a conversation in which she
angrily confronted Anderson and asked why he had molested her. At trial, Anderson
claimed the apologies in his e-mails were for applying excessive pressure on her to
2
succeed and at the library she was on the verge of going out of control and he was
willing to say whatever was necessary to calm her.” (People v. Anderson, supra,
208 Cal.App.4th at p. 856.)
On appeal, Anderson claimed the trial court erroneously excluded evidence of his
conduct after the library confrontation, particularly, that he and his wife wrote a four-
page letter dated July 4, 2004, to Anderson‟s friend, San Marino Police Chief Arl Farris,
in which they reported the victim falsely had accused Anderson of sexual molestation in
November of 2003 and expressed their fear she had descended into drug abuse and might
try to extort money from them. We found no reversible error in the exclusion of this
evidence as hearsay and under Evidence Code section 352. We also rejected Anderson‟s
claim that application of these rules of evidence infringed upon his constitutional right to
testify in his own behalf. Moreover, any error was harmless as Anderson testified fully
with respect to all aspects of the case, including the e-mails and the recorded
conversation. We found evidence related to Anderson‟s conduct after the library
confrontation was not critical to his defense and admission of the evidence would not
have altered the outcome of the case. We also rejected Anderson‟s claim the prosecutor
unfairly exploited the exclusion of Anderson‟s post conversation conduct in argument to
the jury.
Anderson now contends defense counsel rendered ineffective assistance in failing
to challenge the admissibility of the recorded conversation on authentication grounds
(Evid. Code, §§ 1400-1402), in failing to protect Anderson‟s right to testify fully and
credibly regarding the library confrontation, and in failing to investigate indicia of
alteration of the recording.1 He claims defense counsel should have known the recording
was incomplete or had been edited because there is a time disparity of two or three
1
Anderson also contends defense counsel should have objected to the prosecutor‟s
improper exploitation of the trial court‟s exclusion of Anderson‟s post conversation
conduct. However, Anderson‟s claim of prosecutorial misconduct on this same ground
was rejected on appeal. Therefore, Anderson‟s related claim of ineffective assistance of
counsel also fails. (See People v. Collins (2010) 49 Cal.4th 175, 204-205.)
3
minutes between the 12-minute recording of the conversation and the lead detective‟s
case log, which indicates the library meeting consumed approximately 14 minutes. Also,
the conversation starts awkwardly and Anderson told defense counsel the recording did
not include the initial portion of the conversation in which the victim, Y., accused him of
sexual molestation and he denied it. Anderson further claims proper investigation by
defense counsel would have discovered anomalies in the recorded conversation that were
found by Anderson‟s habeas experts. Anderson claims prejudice, asserting proper
investigation and an objection on authentication grounds would have, at minimum,
caused the jury to question the recording and the credibility of law enforcement.
The success of Anderson‟s petition depends in great measure on his post-
conviction declaration in which he claims the recording of the library confrontation does
not include the first few minutes of the conversation in which Y. accused him of sexual
molestation and he denied it. Habeas counsel commenced oral argument with an
extensive quote from Anderson‟s declaration. However, Anderson‟s claim is inconsistent
with Anderson‟s statements to the police in which he insisted the meeting lasted only
three minutes and denied that Y. accused him of molestation during the meeting.
Also, Anderson testified extensively at trial but never mentioned this assertedly missing
conversation. We conclude Anderson‟s claim of extensive unrecorded conversation is
not credible.
Anderson‟s further claim defense counsel should have subjected the recording to
an authentication challenge based on various indicia of untrustworthiness, such as the
time disparity, the awkward start of the conversation and anomalies uncovered by his
habeas experts, is also unavailing. None of the findings by the habeas experts or
otherwise indicates the defense would have prevailed on an authentication challenge.
Y. testified before the grand jury and at trial the recording accurately reflected her
conversation with Anderson. This testimony alone would have been sufficient to
authenticate the recording. However, additional support for the admission of the
recording is found in the testimony of the deputy sheriff responsible for transferring the
digital file from the recording device.
4
Because it is clear Anderson‟s primary claim is not credible, and nothing in the
asserted indicia of untrustworthiness suggests the recording of the library confrontation
would have been excluded from evidence or substantially denigrated in the eyes of the
jury, Anderson is unable to demonstrate that any of the actions he now asserts should
have been undertaken would have resulted in a more favorable outcome. (Strickland v.
Washington (1984) 466 U.S. 668, 687-694 [80 L.Ed.2d 674].) We therefore reject his
claim of ineffective assistance of counsel, conclude no evidentiary hearing is required,
deny the petition and discharge the order to show cause.
FACTS AND PROCEDURAL BACKGROUND2
1. The “time disparity.”
Entries in Detective Ron Jester‟s case journal for the day of the library
confrontation indicate Anderson arrived at the library at 1:25 p.m. and Y. walked into the
library after the conversation ended at 1:39 p.m. The actual recorded conversation is
11 minutes and 48 seconds long.
2. Anderson’s written and recorded statements.
In the letter to Chief Farris dated July 4, 2004, Anderson stated the conversation
lasted approximately three minutes and began with Y. saying, “You ruined my life.”
On July 9, 2004, in a recorded interview, Anderson told Detectives Duncan and
Boyett the conversation lasted approximately three minutes and Y.‟s first words were,
“You ruined my life.” Before the grand jury, Boyett testified that, during this interview,
he asked Anderson whether, during the meeting at the library, Y. mentioned “abusing
her, molesting her, touching her, anything like that” and Anderson responded, “No. No,
that never came out.”
On July 30, 2004, Anderson told Detective Jester the library meeting was “real
brief” and estimated it lasted three minutes. When asked to recount the conversation,
2
We incorporate by reference the Facts and Procedural Background as well as the
Discussion related to the admissibility of the letter to Chief Farris in People v. Anderson,
supra, 208 Cal.App.4th at pp. 858-875. We take judicial notice of the record on appeal in
People v. Anderson as well as the superior court file.
5
Anderson said he came from behind and “said, „Hi, [Y].‟ And she turned around with
this look of hate and said, „You ruined my life.‟ ” Anderson said he did not respond to
that accusation. When told the meeting was not three minutes long, Anderson stated,
“Yes, it was.” Before the grand jury, Jester testified the meeting lasted “about 15
minutes.”
3. Anderson’s declaration.
In a declaration filed in support of his habeas petition, Anderson asserts that, upon
his release from custody on August 2, 2004, he received a copy of the “purported
transcript of the July 1, 2004 recording” and “immediately noticed” it “omitted the first
part of the conversation . . . .” Anderson declared: “I wrote out in longhand my best
recollection of the omitted part of the conversation . . . . At the point where she showed
me the cuts on her arms, I became very upset and concerned, and the rest of the missing
portion is the closest I could remember:
“A: Hi, [Y.]!
“Y: You ruined my life!
“A: [Y.]?
“Y: Why did you molest me?
“A: Oh, [Y.], not again. You know I didn‟t.
“Y: But you did ruin my life.
“A: [Y.], we‟ve been through this and you know I‟m sorry. I thought you were
better.
“Y: No, I‟m worse. Look at my arm! [shows fresh cuts on her arms]
“A: Oh my heavens.
“Y: You did this! You kept pushing me and I begged you to stop. I don‟t want to
go to Harvard. I don‟t want to be a scientist. I don‟t want to be your protégée. Why
didn‟t you stop when I asked?
“A: I‟m sorry. I‟m sorry. I‟m sorry. (Long pause)
[I am not certain of the exact order of each exchange from here on; also I may
have forgotten some exchanges]
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“Y: That doesn‟t help. I‟m flunking all my classes. I‟m flunking all my classes.
It‟s your fault. You‟re just evil. (Pause)
“A: I‟m so sorry. I feel so guilty. I know I was wrong. What can I do to help?
“Y: Make things better. (Long pause) I‟ve tried to kill myself.
“A: Oh, my God, [Y.]! (Long pause)
“Y: Why did you do it? Why did you do it?
“A: I‟m so sorry. I was just evil. (Pause)
“Y: Why? Why?
“A: Like I said in my e mails: I was just horribly horribly thoughtless. I thought
I was making you more successful. Oh, [Y.], I just feel terrible. Just awful. I can‟t
comprehend why I was so thoughtless. (Pause)
“Y: You started pushing me in 5th grade. 5th Grade!
“A: I made you a 2-time National Champion.
“Y: But you couldn‟t leave it at that. You wanted me to be the National
Champion every year! That‟s why I quit. Can‟t you get that through your fucking head?
That‟s why I quit!
“A: I‟m so sorry. What can I say? (Long pause)”
At this point, the recorded conversation begins.3
Anderson faxed his description of the omitted conversation to his attorney, Barry
Tarlow, and shortly thereafter met with Tarlow to discuss the case.4 Tarlow told
Anderson he had shredded the document and explained “he did not want to be wedded to
3
The recording of the library confrontation commences:
“Y: Hey?
“A: (Inaudible)
“Y: So?
“A: Can we go somewhere?
“Y: Why?
“A: Because I think I‟m going to break down (INAUDIBLE) . . . [¶] . . .”
4
Anderson was represented at trial by Barry Tarlow, Blair Berk and Saura Sahu.
7
facts at the beginning of the case . . . .” Anderson declared that, during this meeting, he
told Tarlow what had been omitted from the transcript and that parts of the transcript
differed from his recollection.
In preparation for trial, Tarlow told Anderson not to testify the beginning of the
conversation was missing from the recording in order to avoid cross-examination on this
point. Tarlow said it would hurt Anderson‟s credibility to claim the recording was
incomplete without independent proof the recording had been edited. Also, Tarlow told
Anderson he would ask whether Anderson knew the reason for Y.‟s professed problems
with relationships, referenced during the recorded conversation. Tarlow hoped the
prosecutor would follow up, thereby permitting Anderson to testify he had information
indicating Y. was gay, which the trial court had ruled inadmissible. Had Tarlow asked,
Anderson would have testified Y. took a girl to the prom and was evasive about it. Also,
Y. assertedly had an “odd relationship” with her best friend and seemed unusually
anxious to please her.
Anderson declared Tarlow never discussed with him the feasibility of a challenge
to the recorded conversation on authentication grounds or based on the time disparity.
4. Litigation with respect to the library confrontation.
On August 22, 2005, Hon. Terri Schwartz ordered the prosecution to produce the
original recording of the library confrontation and the police interviews of Anderson
conducted on July 9 and July 30, 2004, and the equipment used to make them for
examination by the defense expert in the presence of a representative of the agency in
possession of the equipment, subject to the prosecutor‟s indication the agency would
claim the official information privilege under Evidence Code section 1040.
On November 29, 2005, the defense filed numerous pretrial motions, two of which
are relevant here. One motion addressed the procedure governing the assertion of the
official information privilege and requested sanctions, including dismissal. The other
motion sought sanctions for the delay in complying with the order of August 22, 2005.
Both motions relied on a declaration of defense expert John Russ filed December 7, 2005,
under seal.
8
Russ, a fiber-optic engineer and an expert with respect to “recording analysis and
enhancement,” declared proper analysis of the recordings at issue required “access to the
real equipment and/or software, as well as the identity, the specifications (including serial
numbers, brand names and instruction manuals), the inspection and repair records, and/or
other similar information about some or all of (1) the microphones and containers
housing or concealing them when they were used; (2) any broadcasting devices; (3) all
cables and connections used; (4) possibly some or all component(s) of the recording
devices; and/or (5) all the equipment and/or software used to process or store the
recording after it was reduced to an original format.”
Russ declared analysis of the recordings required “an audio expert to search for
and document subtle cues of evidentiary manipulation, as where the recording party
intends for the device to be capable of inaccurate or incomplete transmissions. Digital
media are more easily manipulable, and the manipulation is more difficult to detect, than
tape media. . . .” “[A]ccess to the original data is necessary to determine what, if any,
manipulation has occurred and whether the device was intentionally set up to be capable
of inaccurate or incomplete transmissions.” Russ opined “the microphone was not well
suited to the transmission and recording equipment.”
In January of 2006, the People provided the defense a letter identifying the
recording equipment used to make the recordings. A memo from Attila Mathe, the
president of Adaptive Digital Systems (“ADS”), the manufacturer of the recording
device, is attached to the letter. The memo states recorded data is transferred from the
device to a write once CD or DVD and “write once” media is used to “add credibility to
the archived evidence.”
On February 16, 2006, the matter was transferred to Department 100 for trial and
thereafter was assigned to Hon. Michael Pastor.
9
At a pretrial hearing on March 23, 2006, the prosecution provided the defense
disks of the original unenhanced recordings of the library conversation and the police
interviews of Anderson. At the hearing, defense counsel stated the disks were copies and
there was a dispute “about what the originals are” because “[t]he originals have been
taped over and don‟t exist.”
Jury trial commenced on June 14, 2006.
On June 27, 2006, the defense filed a motion seeking a ruling on the claim of the
official information privilege and whether sanctions should be imposed for its assertion.
The trial court conducted a hearing on the motion at which Sheriff‟s Detective Kurt Ebert
of the Southern California High Technology Task Force testified the microphone is
imbedded in the recorder and the device records “directly to flash memory inside” the
device and “the only way to get information out is to transfer it from the recorder to a
computer, and from the computer you subsequently copy those files to some archivable
permanent media you mark as evidence and make other copies or give to the investigator
or further enhance.” Ebert explained the original recording is in the manufacturer‟s
proprietary format and it is transferred to a computer with the manufacturer‟s proprietary
software. Ebert indicated the transfer is accomplished “with a pretty decent level of
verification. This thing was designed . . . for the FBI.” The original recording in
proprietary format is converted to a .wav file, “which is Windows standard format,” so it
can then be enhanced. Ebert took screen shots of the enhancement process to allow
anyone to duplicate the process but did not take a screen shot of the conversion of the
recording from the proprietary format to a .wav file. The original version of the
recording, the enhanced version and the screen shots were put on a CD that was provided
to the defense.
10
Regarding the privilege, Ebert testified, “the way [the device] works, and the
processes it does, and features it has, we feel [it] need[s] to be kept out of the realm of the
public. And the manufacturer, to my understanding, has federal mandates against the
stuff being released outside of law enforcement and the military.”
The trial court conducted a further hearing in camera and sustained the claim of
privilege with respect to “the equipment itself, any proprietary processes regarding this
equipment as to its functionality and the specific features of the equipment, manuals
describing the features, and any attached or built-in devices . . . .”
The defense thereafter requested an instruction advising the jury the prosecution
had refused to disclose information about the equipment used to record the conversation
and the jury should therefore disregard the recording. The defense argued it had been
deprived of a “meaningful attack” on the recording, citing Russ‟s previously filed
declaration, and claimed it had nothing with which to compare the enhanced version of
the recording. The trial court denied the request, ruling disclosure of the official
information was immaterial within the provisions of Evidence Code section 1042 and
would not “raise[] a reasonable possibility of exoneration.”
In a letter from Russ to defense counsel Sahu dated July 14, 2006, the same day as
the trial court‟s ruling on the claim of privilege, Russ indicated the recordings he had
been provided appear to be normal but he needed to compare them to the originals in
order to detect any alterations or edits.
5. Tarlow’s letter to habeas counsel. (Exhibit B to the petition.)
In letters dated August 19, 2009, October 12, 2010, and November 29, 2010,
habeas counsel asked Tarlow to address the “time disparity” and Anderson‟s claim
substantial conversation was missing from the recording. The letter of August 19, 2009,
enclosed “a draft declaration confirming that [the failure to attack the recording based on
the time disparity] was an oversight on [Tarlow‟s] part . . . .” In the subsequent letters,
habeas counsel inquired whether Tarlow had considered “any other potential challenges
to the admissibility/reliability” of the recorded conversation.
11
Tarlow responded in a letter dated December 30, 2010, exhibit B to the habeas
petition. In the letter, Tarlow stated he could not sign the declaration enclosed with the
August 19, 2009 correspondence “because it was not accurate.” Regarding the time
disparity, Tarlow noted “Jester‟s estimate that the „duration‟ of the library meeting was
about 15 minutes does not determine the length of the actual conversation or support a
claim that 3 minutes of conversation is missing.” Also, raising the issue of the time
disparity had negative implications for Anderson as he had been “recorded insisting that
the conversation/meeting was 3 minutes long.”
Regarding the assertedly omitted conversation, Tarlow agreed Anderson
“repeatedly” claimed the conversation started with Y. saying, “ „you ruined my life,‟ and
that it was not on the recording.” Anderson also “may well have claimed to me at times
that there was a small amount of additional conversation also missing.” However,
Tarlow denied Anderson ever claimed “there were 3 minutes of missing conversation or
2 minutes.” Tarlow indicated “[Anderson] was discussing a missing portion of seconds
with me not 3 minutes.”
Regarding “any other potential challenges” to the recording of the library
confrontation, Tarlow wrote: “I certainly recall that I considered attacking the
admissibility/reliability of the library tape recordings. [W]e . . . thoroughly reviewed and
analyzed all of the issues involving potential Secondary Evidence, Best Evidence, and
Authentication, objections to the admissibility of the library recording.”
Tarlow noted the defense raised authentication and secondary evidence issues with
respect to documents in Y.‟s computer and stated: “I determined that the best available
approach was the one we followed . . . . We [sought] access to all of the necessary
original recordings, manuals and microphones, as well as the computers involved in the
enhancement process and the production process. Without these materials we could not
move forward to persuasively assert Constitutional or Evidentiary objections or
demonstrate the recordings had been manipulated.”
12
6. Other relevant declarations.
In exhibit A to the petition, defense expert Russ declared that, after contracting
with Tarlow, he interacted exclusively with associate counsel Sahu. Russ stated he
“emphasized” to Sahu the defense had not been provided original recording data and
without that data, “reliable authentication of the CDs was virtually impossible.” Russ
stated the procedure recommended by ADS, i.e., transfer to a write once CD, “is a
reliable means of producing an accurate surrogate or proxy for the original digital data.
However, . . . in the Anderson case . . . the original data was transferred from the recorder
to the computer used by the law enforcement agent assigned to the case.” Russ declared
that, once the original data had been deleted from the recording device, “the recorder
could provide no assistance in determining the authenticity of the CD copies provided by
the prosecution.” Russ also claimed he “suggested” Sahu “consider having the CDs
examined by another expert with more specialized background in digital recording
issues.”
In exhibit S to the petition, habeas counsel asserts a thorough search of “defense
counsel‟s files and billing records” revealed “no indication of any research, memoranda
or other work product reflecting consideration of Evidence Code section 1400, et seq.”
Exhibit H to the petition is a declaration from habeas counsel indicating that on
December 20, 2010, Sergeant Powell of the Sheriff‟s Technical Crew stated he was
aware the manufacturer of the recording device recommended transfer of digitally
recorded data to a write once CD but, as a matter of internal policy, the Sheriff‟s
Department transferred data from the recorder to a computer and did not make a screen
shot of the transfer.
7. Declarations re indicia of alteration of the recorded conversation.
In support of the petition, Anderson submitted declarations of four experts.
Yi Xu, Ph.D., an associate professor at University College London who
specialized in “speech prosody,” declared he found anomalies in the library recording
which are incompatible with the limitations of human vocalization. At 52:59 of the
recording, just prior to the phrase “Why did you molest me?”, Xu found four male vocal
13
pulses with a total duration of 29.3 milliseconds. However, a human utterance requires a
minimum of 46 milliseconds. Xu opined, “[t]his brief vocalization is most likely the
beginning of a longer utterance that has been foreshortened through some mechanical
means during the processing of the recording.”
At 53:07 of the recording, between the end of the phrase, “Why did you molest
me?” and the beginning of the next phrase, Xu found the pitch of the female voice rises
150 Hz in 189.05 milliseconds, which exceeds the capacity of an untrained voice. The
“brevity of the rise time makes it unlikely these utterances were spoken one after another,
as currently found on the recording.”
At 54:47 of the recording, Xu found a pause of 62.9 milliseconds between two
female utterances, which is too short to be a normal pause, and concluded these
“utterances were therefore unlikely to have been spoken as they appear on the recording.”
Xu indicated each anomaly “casts serious doubt as to the authenticity of the
recording of the conversation,” and “[w]hen viewed cumulatively, they constitute strong
evidence that the recording, as currently constituted, was altered from the original
conversation by some mechanical or digital means.”
In a supplemental declaration, Xu asserted the pitch levels of Anderson‟s first six
utterances are below normal levels for social conversation and fall in the pitch range
indicating sadness. Thus, Anderson‟s first utterances likely were “made after . . . some
conversation that induced the sad emotional tenor . . . .”
Curtis Crowe, assertedly an expert in the analysis of digital recordings, found an
electronic spike at 45:05 of the recording, approximately two seconds after a female
voice says, “Hey,” in a low tone. This spike “appears to contain two distinct impulses of
differing timing characteristics.” The sound and shape of the impulse “is consistent with
what we may see after a digital edit.”
At 46:12.8, a male voice is cut off abruptly in a manner “consistent with a recorder
dropout or editing.” A similar abrupt termination occurs at 46:21.6, of the recording.
Finally, Crowe detected a 58.3 Hz signal, which is not normally associated with an
outdoor environment. The signal begins prior to the first word of the conversation and
14
stops almost exactly at the end of the conversation. Crowe could find no potential source
of this signal at or near where the conversation occurred.
Craig Schick, B.S., an electronics engineer, also detected the 58.3 Hz signal which
commenced shortly before the start of the conversation. None of the comparison
recordings Schick made outside the library included a 58.3 Hz signal. Schick concluded
the recording had been edited in an environment that allowed the introduction of a 58.3
Hz signal, like a laboratory or office, and asserted with certainty the recording had been
“adulterated.”
In a second declaration submitted with the traverse, Crowe indicated he analyzed
the sound of footfalls at the start of the recording and compared them to the sound of Y.‟s
footfalls as she walked from the scene of the conversation, at first on grass and then on
concrete. Crowe concluded the footfalls at the start of the conversation “appear to be
made on a hard or concrete surface,” not on the grassy surface where the conversation
occurred. Also, the sound of Y.‟s footfalls as she walked from the conversation are
distinctly different and consistent with the grassy surface where the conversation
occurred. “These anomalies, taken together, provide a stronger basis for inference that
the recording has been altered.”
Catalin Grigoras, Ph.D., found three “counter” anomalies that indicate audio data
is missing from the recording. A two second jump occurs at 12:41:57. Four second
jumps occur at 13:04:53 and at 13:28:21, the latter occurring during conversation.
Grigoras hypothesized the missing data could be caused by recording system
malfunction, human intervention to delete data blocks or “an audio signal played back
through the microphone input that can be followed by human intervention on the file
structure to edit data blocks.” Grigoras declared: “Any intentional alteration that would
not be detected as a counter skip anomaly would likely necessitate a two-step process of
(a) editing the content of the recording while in WAV format, and then (b) re-recording
the edited version onto the recorder initially used. . . . [I]n order to determine the
feasibility of an intentional alteration, I need to examine the recorder used to make the
recording in this case.”
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Finally, in the traverse, habeas counsel notes the recording of the library
conversation provided to the defense in December of 2010 bears a time stamp that
coincides with the observations of the surveilling deputies. However, a time stamp in the
“Properties” file of the same recording indicates the first file was transferred from the
recorder to a computer at 2:23 p.m. However, Detective Jester‟s case journal indicates he
did not deliver the recorder to the Sheriff‟s Technical Operations Office until 2:55 p.m.
8. Declarations submitted with the return.
In exhibit No. 2 to the return, Detective Jester declared the entries in his journal
reflect the time Jester received information, not the time the event occurred. Also, 1:25
p.m. indicates when Anderson arrived at the library, not when he began speaking to Y.
The 1:39 p.m. entry indicates when Jester was informed Y. had walked into the library
and was safe. Also, Jester records time without regard to seconds. Thus, 1:25 p.m. could
reflect a real time of either 1:25:05 or 1:25:55.
In exhibit No. 3 to the return, Detective Ebert declared: “Generally, when
transferring a recording from a recorder made by Adaptive Digital Systems („ADS‟),
I would transfer the recording to a computer. This was done using proprietary software
from ADS, and the resultant file was in a proprietary format. I would then make at least
two exact CD copies of the recording in the proprietary format. One CD was archived,
and the other was given to the investigator on the case.” “The recording in this
proprietary format could only be played using the proprietary software, or converted to a
.wav file. It could not be edited, altered, or manipulated in any way. The recording in
this proprietary format was therefore protected.”
“I generally transferred recordings from the ADS recorder to a computer instead of
to a write-once CD for two main reasons. First, it saved time because it was time-
consuming to transfer to a CD, and if there was an error, the entire process would have to
be repeated. Second, we usually needed multiple copies of a recording, and it was easier
and more reliable to make a CD from the computer than from another CD.” After Ebert
had “two good copies” of a recording in the proprietary format, the recording would be
erased so the recorder could be used again.
16
Ebert declared: “The transfer process from the recorder to the computer was an
automatic process. I would click a button that said „Transfer,‟ and . . . proprietary
software would then transfer the recording in its own format. . . . There was no way to
alter, manipulate, or edit the file during this process.” “Conversion from the proprietary
format to a .wav file was also an automatic process using the proprietary software. . . .
There was no way to alter, manipulate, or edit the file during this process. However,
once a file was in a .wav format, it was unprotected and could be easily edited or
enhanced by anyone who had it.” “In the thousands of recordings that I have worked on,
I never altered, manipulated, or edited any file without documenting it, as described
above . . . .”
In exhibit No. 4 to the return, Sheriff‟s Sergeant John Powell declared:
“The original recording of the library conversation between Anderson and the victim
was provided to the defense in its proprietary format.” Further, in February of 2011,
Powell received a telephone call from Attila Mathe, the president of ADS, referring to a
letter Mathe had received from habeas counsel. The letter advised Mathe that habeas
counsel had “the recording in its proprietary format, and was able to play that recording
using the proprietary software, USB Bird Player . . . .” However, habeas counsel
“identified two separate places in the proprietary version of the recording where the time
skipped about three seconds: 13:04:53 and 13:28:22. He requested that ADS attempt to
restore the missing data.”
After Powell verified habeas counsel‟s observations, he sent Mathe the recording
device and asked “him to have someone look at the original data files to see if there was a
clock error or something else. . . . In response, Mr. Mathe wrote the letter that is attached
to the Petition as exhibit O.”
Exhibit O to the petition, an undated and unaddressed letter from Mathe, indicates:
“Blocks of the recording corresponding to the two missing approximately 3 second
sections contained zeros instead of audio data.” A diagnostic routine revealed two “bad
memory blocks” in the recorder which correspond with the segments of the recording that
contained zeros. Mathe concluded the two missing segments were the result of “memory
17
block failure. . . . During the examination we did not find any evidence of data
tampering.”
CONTENTIONS
Anderson contends defense counsel rendered ineffective assistance in failing to
challenge the admissibility of the recording of the library confrontation on authentication
grounds, in failing to protect Anderson‟s right to testify fully and credibly regarding the
library confrontation, and in failing to investigate indicia of alteration of the recording of
the library confrontation. In the traverse, Anderson insists an evidentiary hearing is
necessary to resolve numerous factual matters.5
DISCUSSION
1. Anderson’s claim of approximately two or three minutes of unrecorded
conversation is entirely incredible.
Anderson declares he advised Tarlow before their first meeting there was an
extended unrecorded conversation at the outset of the library confrontation in which Y.
accused him of sexual molestation and he denied it. Anderson claims this missing
conversation was critical to the jury‟s understanding of his explanation of the recorded
portion of the conversation. Anderson argues defense counsel rendered ineffective
assistance in failing to elicit Anderson‟s version of the conversation to allow Anderson to
testify to “his own version of events in his own words.” (Rock v. Arkansas (1987)
483 U.S. 44, 52 [97 L.Ed.2d 37].) Instead, during preparation for trial, defense counsel
told Anderson not to question the authenticity of the recording. Anderson asserts his
claim the recording did not include a portion of the conversation is supported by the time
disparity as well as the absence of normal social salutations at the start of the
conversation and the tenor of the initial exchange which suggests something not currently
contained in the recording caused Anderson to say he feared a break down.
5
Anderson has not presented a declaration from any of the three attorneys who
represented him at trial. Tarlow‟s letter to habeas counsel, exhibit B, is not submitted
under penalty of perjury. However, as relevant to the resolution of Anderson‟s writ
petition, the matters set forth in Tarlow‟s letter are apparently based on the record.
18
“A petition for a writ of habeas corpus is a collateral attack on a presumptively
final judgment; therefore, „the petitioner bears a heavy burden initially to plead sufficient
grounds for relief, and then later to prove them‟ [citation].” (In re Crew (2011)
52 Cal.4th 126, 149.) Anderson has failed to carry this burden.
Anderson‟s claim that two or three minutes of conversation are missing from the
recording is inconsistent with his prior statements found in the record. In the letter to
Chief Ferris and in the interviews of Anderson conducted on July 9 and July 30, 2004,
Anderson said the conversation was brief, lasting only a few minutes. He did not state on
any of these three occasions that Y. accused him of molestation at the outset of the
conversation and he denied it. In the interview conducted by Detectives Boyett and
Duncan on July 9, 2004, Anderson denied that Y. mentioned molestation during the
library confrontation.
Also, Anderson testified at length at trial and was questioned, line by line, about
the library confrontation. He did not testify the conversation started with Y.‟s accusation
of sexual molestation and his denial. His claim that, on advice of counsel, he failed to
mention substantial unrecorded conversation that supported his position is not worthy of
belief.6
The time disparity does not support Anderson‟s claim of substantial unrecorded
conversation. Detective Jester explained in his declaration he recorded the time events
were reported to him, not the time the events occurred, and he disregarded seconds when
he recorded the relevant times. Also, the 1:25 p.m. entry reflects the time Anderson
6
Anderson‟s lack of credibility in this regard likely informed the decision to file the
instant writ petition in this court, rather than the trial court. We note that, after the People
requested dismissal of Anderson‟s petition for failure to state his CDC number, place of
incarceration and “the circumstances justifying an application to this court,” rather than
the trial court (Cal. Rules of Court, rule 8.384(a)(1); Form MC-275, p. 6), Anderson
provided his CDC number and place of incarceration but did not state the circumstances
justifying application to this court in the first instance. The failure to address this point,
in our view, speaks to Anderson‟s desire to avoid further litigation before Judge Pastor,
who found Anderson‟s trial testimony incredible and so advised Anderson‟s supporters at
sentencing.
19
arrived at the library, not the start of the conversation, and the 1:39 entry indicates when
Y. entered the library at the end of the conversation. Thus, the 14-minute duration of the
meeting as reflected in Jester‟s case journal is consistent with a 12-minute recorded
conversation.
With respect to Anderson‟s argument the conversation begins awkwardly and
nothing on the recording explains why Anderson feared a breakdown at the outset, this
was not a normal social encounter. Anderson and Y. had not met face-to-face in
approximately one year and, in the interim, Y. had written e-mails to Anderson advising
him of the distress occasioned by his abuse, her struggle with whether to report him and
her insistence that Anderson participate in therapy. Given the circumstances, it is not
surprising that the conversation begins in a disjointed and emotional manner.
Thus, we reject as incredible Anderson‟s claim there was extended unrecorded
conversation at the outset of the library confrontation in which Y. specifically accused
him of sexual molestation and he denied it. Tarlow cannot be faulted for failing to elicit
Anderson‟s testimony in this regard and referral of the matter for an evidentiary hearing
to determine the truth of Anderson‟s assertion would constitute an idle act.
2. No ineffective assistance with respect to the failure to object to the recording of
the library confrontation on authentication grounds.
a. Authentication.
Evidence Code sections 1400 and 1401 require a writing to be authenticated
before the writing or secondary evidence of its content may be received in evidence. 7
A ”writing” includes an audio recording. (§ 250.) “Authentication of a writing means
(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.” (People v. Skiles (2011) 51 Cal.4th 1178, 1187, citing section
1400.)
7
Subsequent unspecified statutory references are to the Evidence Code.
20
Authentication is a preliminary fact first determined by the trial court subject to
redetermination by the jury. (People v. Marshall (1996) 13 Cal.4th 799, 832; People v.
Fonville (1973) 35 Cal.App.3d 693, 708-709.) The proponent of the writing has the
burden of establishing its authenticity. The proponent‟s threshold burden “is not to
establish validity or negate falsity in a categorical fashion, but rather to make a showing
on which the trier of fact reasonably could conclude the proffered writing is authentic.”
(People v. Valdez (2011) 201 Cal.App.4th 1429, 1437.)
The proponent‟s burden is met “when sufficient evidence has been produced to
sustain a finding that the document is what it purports to be [citation].” (Jazayeri v. Mao
(2009) 174 Cal.App.4th 301, 321.) “This foundation is usually provided by the testimony
of a person who was present at the time the picture was taken, or who is otherwise
qualified to state that the representation is accurate.” (People v. Bowley (1963) 59 Cal.2d
855, 862.)
When sufficient evidence of authenticity is provided, “[t]he trial court [is] required
to admit the document in evidence . . . .” (People v. Morris (1991) 53 Cal.3d 152, 205,
disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
The fact that “ „conflicting inferences can be drawn regarding authenticity goes to the
document‟s weight as evidence, not its admissibility.‟ ” (People v. Valdez, supra,
201 Cal.App.4th at p. 1435, quoting Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 321.)
With respect to alteration, section 1402 states, “The party producing a writing as
genuine which has been altered, or appears to have been altered, after its execution, in a
part material to the question in dispute, must account for the alteration or appearance
thereof. He may show that the alteration was made by another, without his concurrence,
or was made with the consent of the parties affected by it, or otherwise properly or
innocently made, or that the alteration did not change the meaning or language of the
instrument. If he does that, he may give the writing in evidence, but not otherwise.”
(§ 1402.) Under section 1402, the test of materiality of an alteration is “whether it
changes the rights or duties of the parties, or either of them.” (Consolidated Loan Co.
v. Harman (1957) 150 Cal.App.2d 488, 491.)
21
We review a ruling on authentication matters for an abuse of discretion.
(People v. Hovarter (2008) 44 Cal.4th 983, 1014.)
b. Anderson’s contention.
Anderson contends defense counsel knew or should have known the People would
have difficulty authenticating the recording of the library confrontation based on his
consistent claim the conversation began with Y saying, “You ruined my life,” which is
not included in the recording, and the failure of the Sheriff‟s Department to memorialize
the original data in the manner prescribed by the manufacturer. Also, had defense
counsel consulted other experts as Russ assertedly recommended, the defense could have
shown the vocal anomalies uncovered by the habeas experts which cast doubt on the
integrity of the recording and constitute strong evidence the recording was altered.
Anderson claims a timely challenge would have resulted in exclusion of the recording or
admission of the recording with evidence calling its authenticity into question and an
instruction directing the jury to determine its authenticity before considering it.
According to Anderson, either result undermined the prosecution‟s case and supports a
finding of prejudice.
c. Y.’s testimony, corroborated by Ebert’s testimony, was sufficient to
authenticate the recording.
Before the grand jury, the prosecutor asked Y. to listen to the recording because
“I am going to ask you afterwards . . . if this is the complete conversation between both
of you.” After playing the recording, the prosecutor asked if “that was an accurate tape
of the conversation,” and Y. responded, “Yes.”
When a knowledgeable witness testifies a writing or recording is accurate, the trial
court is “amply justified in rejecting defendant‟s view that the copy was altered or
incomplete.” (People v. Morris, supra, 53 Cal.3d at p. 205 [trial court properly rejected
authentication objection where defendant claimed a page of his letter was missing and
handwriting expert suggested possibility of a missing page, but recipient testified letter
was accurate]; People v. Bowley, supra, 59 Cal.2d at p. 862.) Similarly, at trial Y.
22
testified she had the recorder in her purse when she met Anderson at the library and the
recording was an accurate rendition of their conversation.
Defense counsel would have been familiar with the grand jury proceedings and
thus would have been aware of Y.‟s ability to authenticate the recording of the library
confrontation. Because an authentication challenge to the library recording would have
failed, the decision not to bring a futile motion was a reasonable strategic choice.
(See People v. Prieto (2003) 30 Cal.4th 226, 261 [“counsel‟s decision to forgo
implausible arguments or objections does not constitute deficient performance”];
People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [counsel is not required to make
futile motions to appear competent].)
Y.‟s testimony was corroborated by Detective Ebert‟s testimony in the trial court
and by declaration here. Ebert explained the procedure by which he transferred the
original digital data to a computer in proprietary format and thereafter placed copies of
the proprietary file on CD‟s provided to the defense. Ebert declared he “never altered,
manipulated, or edited any file without documenting” the editing process. Given Ebert‟s
testimony, any material alteration to the recording, other than the documented
enhancements performed on the recording, must have been innocently made.
Anderson argues the Grigoras declaration demonstrates alteration of the recording
was not innocent. Grigoras declared that, in order to edit the recording so as to eliminate
the blank blocks where erasures had occurred, the original recording would have to be
removed from the recording device, converted to a .wav file which would have been
edited and then re-recorded onto the device in the edited form. Such a course of conduct
would have required a concerted effort on behalf of law enforcement and simply is not
plausible. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [affirming denial
of motion for discovery of police personnel records finding defendant‟s “grandiose”
allegations of a police conspiracy to frame him were not plausible].)
Based on the foregoing, we confidently conclude the recording of the library
confrontation would have survived an authentication challenge. As previously noted, the
time disparity and the awkward nature of the start of the conversation do not indicate
23
portions of the recording had not been recorded. They similarly do not indicate the
recording had been altered.
Russ‟s most recent declaration states he “suggested” Sahu “consider having the
recording examined by an expert with more specialized background in digital recording
issues.” Russ does not indicate when he made this suggestion and the suggestion does
not appear in Russ‟s letter to counsel dated July 14, 2006.
In any event, even had defense counsel raised the anomalies noted by the habeas
experts, the absence of a screen-shot of the initial transfer from the recorder to the
computer, and the time discrepancy in the Properties window of the file provided to the
defense, these matters would have gone to the weight of the evidence, not its
admissibility. (See People v. Martinez (2000) 22 Cal.4th 106, 128 [“[A]n objection that a
[computerized] record is „incomplete‟ generally „go[es] to the weight of th[e] evidence
and not its admissibility‟ ”]; Jazayeri v. Mao, supra, 174 Cal.App.4th at p. 321.)
Assuming the science Anderson‟s experts rely upon, such as speech prosody,
would have been admissible in court (see People v. Kelly (1976) 17 Cal.3d 24, 30,
abrogated by statute on another point as explained in People v. Wilkinson (2004)
33 Cal.4th 821, 845-848), the anomalies found by Anderson‟s habeas experts fail to
inspire any confidence in a reasonable probability of a different result. Two three-second
jumps identified by the recorder‟s manufacturer due to memory block failure likely
would provide an innocent explanation for at least some of the anomalies detected by the
experts. In any event, the declarations of the habeas experts would not have overcome
Y.‟s testimony the conversation was accurately recorded and Detective Ebert‟s testimony
about how the recording was transferred from the recording device to a computer in
proprietary format.
Further, under section 1402, the prosecution only would have been required to
explain any real or apparent alteration that was “material to the question in dispute.”
(§ 1402; People v. Hovarter, supra, 44 Cal.4th at p. 1014.) The asserted omission of
“You ruined my life,” was entirely consistent with the rest of the recorded conversation
and thus not material to any question in dispute. Also, Anderson has failed to show the
24
recording was altered “after its execution,” as opposed to omitting a portion of the
conversation. (§ 1402; see People v. Hovarter, supra, at p. 1014 [defendant challenged
authentication of document on which handwritten markings may not have existed on the
originals].) Because there was no indication the recording had been materially altered,
there was no “genuine dispute . . . concerning material terms.” (§ 1521, subd. (a)(1).)
Nor was there any showing that “justice require[d] the exclusion” of the recording or that
admission of secondary evidence of its content would be unfair. (§ 1521, subd. (a)(1)
& (2).) Consequently, even if the CDs did not qualify as originals, they were admissible
secondary evidence.
Anderson also invokes section 412, which provides, “If weaker and less
satisfactory evidence is offered when it was within the power of the party to produce
stronger and more satisfactory evidence, the evidence offered should be viewed with
distrust.” Because the record indicates the defense had a digital copy of the recording in
proprietary format, section 412 has no application.
In sum, the new declarations do not support a finding of a material alteration of the
recording or contradict Anderson‟s admissions in the recorded conversation.
Further, it appears defense counsel acted reasonably in seeking to obtain the
recording device and, when the trial court upheld the claim of official information
privilege, seeking sanctions under section 1040. The Russ declaration filed under seal in
the trial court indicated detection of any manipulation of the recording required access to
the original recording, microphone, recording device and “all the equipment and/or
software used to process or store the recording after it was reduced to an original format.”
Russ told defense counsel he could not do a meaningful analysis without the original
recording or recorder, the recordings he had “seem[ed] to be normal,” and alterations in
digital recordings were difficult to detect. Based on this advice, defense counsel
reasonably focused on obtaining access to the recording equipment used to record the
conversation as well as the original recording. (See People v. Williams (1988) 44 Cal.3d
883, 945-946; Fields v. Brown (9th Cir. 2005) 431 F.3d 1186, 1205.)
25
Indeed, habeas expert Grigoras reiterated the need for the recording equipment and
declared that, in order to determine the feasibility of an intentional alteration of the
recording, he had to examine the recording device. Thus, defense counsel cannot be seen
to have acted unreasonably in seeking to obtain the equipment used to make the
recording.
The absence of any indication defense counsel considered an authentication
challenge to the recording of the library confrontation in defense counsel‟s files or billing
records does not show defense counsel failed to consider such a challenge or
misunderstood the burden of proof in an authentication proceeding. Defense counsel
objected to the introduction of other evidence, such as Y.‟s e-mails to Anderson, on
authentication grounds. The trial court overruled the objection and admitted many e-
mails into evidence, even where Y.‟s testimony was the only evidence supporting the
claim the e-mails had been sent. Thus, the record demonstrates defense counsel was
aware of the availability of an authentication challenge.
Further, Anderson‟s claim Y. started the conversation by saying, “You ruined by
life,” carried with it substantial negative implications for Anderson. Had Anderson made
this claim at trial, it would have prompted the prosecution to cross-examine Anderson
with respect to his repeated insistence the meeting lasted only three minutes. This would
have permitted the prosecution to argue Anderson‟s attempt to dismiss the conversation
as a brief encounter demonstrated consciousness of guilt. Thus, defense counsel
reasonably could conclude Y.‟s asserted statement, “You ruined my life,” was
unnecessary to Anderson‟s defense and, in fact, harmed his case. Such a tactical decision
was well within the wide range of reasonable professional assistance. (Strickland v.
Washington, supra, 466 U.S. at p. 689.)
26
3. Failure to protect Anderson’s right to testify fully and credibly in his own
defense.
During the recorded conversation, Y. complained she had experienced difficulty
with interpersonal relationships, showed Anderson cuts on her arms and demanded an
explanation. Anderson eventually said, “I‟m sorry, [Y.]”
Anderson contends defense counsel should have asked the trial court to permit
Anderson to testify Y.‟s sexual orientation caused her self-destructive behavior and
difficulty with relationships. However, the trial court sustained relevance objections
whenever defense counsel attempted to elicit this information. During cross-examination
of Y.‟s friend, the trial court sustained a relevance objection when defense counsel asked
if she and Y. were “girlfriend and girlfriend.”
At the close of Y.‟s trial testimony, defense counsel asked that Y. remain on call,
noting the prosecutor intended to elicit the opinion of an expert “that cutting and burning
is [a] symptom of sexual molestation . . . .” Defense counsel argued such behavior can
also be caused by sexual identity issues and offered to demonstrate Y. “is gay and
therefore had these problems which an expert will testify are reasons for cutting and
burning.”
The trial court ruled both sides could ask the experts about factors that could cause
someone to cut or burn themselves and could inquire “regarding specific factors like
anxiety and depression, and physical abuse, and sexual abuse, and issues regarding sexual
orientation or sexual dysfunction as precipitating cutting and burning . . . . [¶] But to
specifically make direct comments upon the sexuality, sexual orientation of a nine, ten,
12, eleven, 13-year-old, or 14-year-old” would be precluded under section 352. The trial
court also noted the issue was disputed and collateral and would “engender even more
delays in this case . . . .”
27
Defense counsel argued the expert testimony would have no meaning if the
defense could not also present evidence indicating Y. is gay. The trial court indicated it
would allow the inquiry if it “relate[d] to substantive issues in this case,” but no such
showing had been made.
Thereafter, defense counsel elicited Anderson‟s testimony he “knew the reasons
for the cutting. Well, I assume the reasons for the cutting.” However, defense counsel
did not ask Anderson what those reasons were, hoping the prosecutor would cross-
examine Anderson on this point, thereby opening the door to the evidence. Anderson
claims defense counsel should have asked the trial court to revisit its ruling. He argues
his knowledge of Y.‟s sexual orientation was essential to explain his conduct during the
library conversation and thus related to a substantive issue in the case. He notes defense
counsel argued to the jury there was an explanation for Y.‟s difficulties but it was not in
the record because no one asked Anderson about it. Anderson asserts the jury must have
viewed this as bizarre, given that defense counsel conducted extensive examination of
Anderson.
However, the jury likely concluded defense counsel would have asked Anderson
the source of Y.‟s difficulty had the trial court permitted the inquiry. In any event,
defense counsel reasonably could conclude the trial court would not change its ruling
merely because Anderson believed Y.‟s sexual orientation was the cause of her
destructive behavior. (People v. Prieto, supra, 30 Cal.4th at p. 261.)
Further, the defense presented evidence indicating Y. had been the victim of
physical abuse at the hands of her father in 1998 which resulted in a referral to the
Department of Children and Family Services. Thus, even without the sexual identity
evidence, the defense suggested explanations for Y.‟s destructive behavior other than
sexual molestation. No ineffective assistance of counsel appears.
28
DISPOSITION
The petition is denied. The order to show cause is discharged.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
KITCHING, J.
29