People v. Molina CA2/2 ( 2014 )

Filed 11/24/14 P. v. Molina CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B250737
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA398296)
v.
FRANCISCO MOLINA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Clifford L. Klein, Judge. Affirmed.
Randy Short, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and David Zarmi, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________________________________
A jury convicted defendant Francisco Molina of two counts of engaging in sexual
penetration upon a child in violation of Penal Code section 288.7, subdivision (b) (counts
1 & 2)1 and two counts of committing a lewd or lascivious act upon a child in violation of
section 288, subdivision (a) (counts 3 & 4). The trial court sentenced defendant to a total
sentence of 30 years to life, consisting of 15 years to life in each of counts 1 and 2. The
court imposed concurrent midterms of six years in counts 3 and 4.
Defendant appeals, alleging several instances of ineffective assistance of counsel.
He also argues he was prejudiced by the complaining witness’s extrajudicial statements
being entered into evidence without limitation and by the cumulative effect of trial
counsel’s errors.
FACTS
Prosecution Evidence
C. is the child of G. and W., who separated in 2010. They also had a son, A. C.
was nine years old at the time of trial. Before her parents separated, C. lived on Dalton
Street in Los Angeles with her parents, brother, uncle, and grandparents. The Dalton
Street house belonged to C.’s grandparents, who are defendant and Abigail.2 When her
parents separated, C. at first went to live with G. In December 2011, W. obtained
custody of C. and A., and they went to live with him in the Dalton Street home.
The Dalton Street home had only one bedroom, where W. slept with his children.
The uncle slept on the floor of the closet in the same room. The grandparents slept on a
bed in the living room. C. testified that when she was seven years old, defendant began
to touch her private parts.
C. testified that defendant would insert his fingers in her “front part” and move
them from side to side. He did this “more than two times” while they were either on her
grandmother’s bed or her father’s bed. C. did not want defendant to do this to her, but
1 All further references to statutes are to the Penal Code unless stated otherwise.
2 C. said her grandmother’s name was Abigail, but G. referred to her former mother-
in-law as “Margarita.”
2
she was scared of getting in trouble. More than three times, defendant rubbed his front
private part inside her “butt” after pulling down her clothing. Defendant would put a
blanket over himself and C. Once defendant grabbed C.’s hand and made her touch his
front part, but she immediately removed her hand. He once he kissed her neck.
Defendant told C. not to tell anybody because it was just a game. C. said defendant once
tricked her into getting on the bed by telling her she was too close to the television.
When she went to the bed, defendant also got in bed, and he molested her. C.
remembered the incidents happening before the Christmas preceding her eighth birthday
in March of the following year. The last incident was in the month of January.
On April 20, 2012, C.’s “private” began hurting, and C. complained to G. G.
checked and saw that C.’s vagina looked red and irritated. G. told C. that she did not
clean herself properly. G. asked if she was okay. C. said “yes,” but then lay down and
began to cry. G. asked C. to tell her if something was going on, and she said, “It’s
because of my grandpa.” She said he was touching her private parts. C. said she was
scared that “they’re going to get mad at me.”
G. immediately called W. G. stepped away while C. told W. about the
molestations. C. was shaking and crying as she told her father, and he began to cry as
well. G. took C. to be checked by a doctor at Children’s Hospital. The doctor did not
prescribe anything but told G. to keep C. clean and put clean clothing on her. The doctor
found C.’s private parts to be “a little bit irritated.”
Los Angeles Police Officer Jose Campos was dispatched to the hospital. He spoke
with C., who told him that between January and March 2012, her grandfather had
touched her private parts. C. estimated that it had occurred about six times in either his
bedroom or hers. He would wrap a blanket around the both of them and touch her
vaginal area and insert his fingers in her vagina. On most occasions, he would also pull
down her pants and rub his penis on her anal area, and at one point he had her touch his
penis. Officer Campos did not take C. to a sexual assault treatment center because of
“the lapse in time of the assaults.”
3
A police investigator, Detective Victor Acevedo, also spoke with C. and G. C.
was alone when interviewed, and she described the same incidents of molestation she had
related to Officer Campos. Detective Acevedo telephoned defendant and said he needed
to speak to him about an incident with his granddaughter C. Defendant was very
receptive and voluntarily met with Detective Acevedo at the police station on May 31,
2012. Defendant came with his wife, who waited outside as defendant was interviewed.
In the waiting room, Detective Acevedo told defendant that “it was a voluntary statement,
that he was free to leave, and that he could terminate the interview on his own accord.”
Detective Acevedo confronted defendant with the allegations that C. had made.
Defendant initially denied them and said, he “did not do any of those things.” Then he
remained quiet and said, “I might have touched her.” According to Detective Acevedo,
defendant “kind of went more not directly saying yes, but maybe and might have
happened unintentionally. Those were his words.” Eventually, he stated “that he touched
C.’s vagina approximately two times and that he did have contact with her buttocks with
his erect penis, but it was over the clothing.” He put his finger in her vagina for seconds
only. Detective Acevedo did not ask defendant about taking C.’s hand and putting it on
his penis. Defendant admitted telling C. not to tell anyone and that it was a game.
Detective Acevedo believed he had recorded the interview. He set the recorder,
but it failed to record the interview except for the first few seconds. The interview lasted
25 to 30 minutes. Detective Acevedo reset the recorder and summarized the unrecorded
interview with defendant on the new recording, which lasted about seven minutes and
was played for the jury.
Dr. Jayme Jones, a clinical psychologist, explained the sexual abuse
accommodation syndrome, which is a model used to help people understand the behavior
of children who have been sexually abused. When given a hypothetical based on the
facts of defendant’s case, Dr. Jones was of the opinion that C. was unlikely to disclose
the abuse because she has positive feelings for her grandfather. Living in her
grandfather’s house would increase a sense of helplessness. She would not be expected
to tell anyone or to act differently around others.
4
Defense Evidence
W. testified that he gained custody of C. and her brother in January 2012. The
children stayed with him Monday through Friday and with G. on the weekends. His
mother took the children to school—never his father—and W. picked them up after
school and took them home. W. worked from 4:45 a.m. until 1:45 p.m. W. stayed at
home with the children in the afternoon and evening. He was always there and did not
have his mother or father watch them. W. put the children to bed at 8:00 p.m., and he
went to bed at the same time. W. could not remember a single time that he left his
children alone with his father or his father and brother. W. testified that he did the
laundry every Saturday morning. The children were with their mother. He did not go to
the grocery store because either his mother or father would go.3
C. never complained to W. about having pain in her private area. There was no
downturn in her school performance, and she never showed any aversion to being around
defendant. The allegations only began after W. gained custody of his children. When G.
had custody, W. paid her $980 in child support, but he no longer paid her. G. had not
tried to win custody of the children since the abuse was disclosed.
W. acknowledged that when he had custody, there were weekends when G. did not
feel like picking up the children, and they spent the weekend with him. This happened
approximately twice a month. If he took his mother to the laundromat, his sister, who
visited every weekend, would watch the children. He could not say if his sister left the
house without his children, but he did not think she did. W. later testified that when G.
did not pick up the children, he would do laundry on Mondays. W. admitted he
sometimes “went outside,” but stated that his mother or brother would be home then. If
he had to run an errand or go to the doctor, his children were always with him.
3 When asked where her father and grandmother were when the abuse occurred, C.
said they were grocery shopping or doing the laundry.
5
DISCUSSION
I. Cross-Examination of Complaining Witness
A. Defendant’s Argument
Defendant contends trial counsel was ineffective in that he failed to cross-examine
C. or G. in any meaningful way to establish reasonable doubt about their veracity. 4
B. Relevant Authority
“To establish entitlement to relief for ineffective assistance of counsel the burden
is on the defendant to show (1) trial counsel failed to act in the manner to be expected of
reasonably competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence of
counsel’s failings. [Citations.] ‘[W]here the record shows that counsel’s omissions
resulted from an informed tactical choice within the range of reasonable competence, the
conviction must be affirmed.’ [Citation.] ‘In some cases, however, the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged. In such
circumstances, unless counsel was asked for an explanation and failed to provide one or
unless there simply could be no satisfactory explanation, these cases are affirmed on
appeal.’ [Citation.]” (People v. Lewis (1990) 50 Cal.3d 262, 288.)
“As the United States Supreme Court noted in Strickland v. Washington [(1984)
466 U.S. 668]: ‘Judicial scrutiny of counsel’s performance must be highly deferential. It
is all too tempting for a defendant to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. [Citation.] A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” (People v. Lewis, supra, 50 Cal.3d at p. 288.)
4 Although defendant initially mentions a failure to cross-examine G., he presents
no specific instances of this alleged failure. Hence, we address only his arguments
regarding the cross-examination of C.
6
C. Counsel Not Ineffective
Defendant complains that trial counsel made no attempt to refresh C.’s memory as
to her preliminary hearing testimony, during which she stated many times that she did not
recall certain details of the abuse, or to impeach her with the transcript of the hearing. He
asserts that counsel’s failure to establish the witness’s lack of memory fell below
professional standards and was prejudicial to him.
Defendant asserts that counsel also failed to ask about the precise circumstances
and dates of each of the sexual abuse incidents and the reason defendant’s statement that
it was a game caused C. to be silent. Defendant provides a list of 10 questions he
believes counsel should have asked.5 According to defendant, if trial counsel had
questioned C. effectively, a reasonable doubt of his guilt could have been established for
at least one juror.
Whether to cross-examine a witness with certain questions is a tactical matter well
within the defense counsel’s purview. (See, e.g., People v. Beagle (1972) 6 Cal.3d 441,
458.) The instant case is not one where “there simply could be no satisfactory
explanation” for counsel’s decision. (People v. Mai (2013) 57 Cal.4th 986, 1009.) It is
probable defense counsel saw there was little to be gained by appearing to badger C. and
made a tactical decision not to pepper her with the type of questions defendant sets forth
in his brief. To the jury, C. undoubtedly appeared to be sympathetic and vulnerable. Any
attempt to try to pin the child down to specific times and acts at her young age would
have appeared unfair and even humiliating, causing a backlash against defendant. Nor
was there much to be gained by pointing out relatively minor inconsistencies in C.’s
5 Defendant’s suggested questions for C. are: “When was the first time, the second
time, the third time, and so forth? What precisely occurred the first time, the second
time, the third time and so forth? Was there truly penetration of the vagina or rectum? If
so, when and how many times? Where were the other family members? Why did she not
immediately tell her parents nor other authority figures? Was it truly because appellant
told her not to tell because it was just a game? Did she believe it was just a game? Did
she know what her grandfather was doing was improper?”
7
recollection of the details surrounding each and every incident of molestation, not to
mention the fact that such questioning would repeatedly drive home the details of the
sexual abuse. “‘“In the heat of a trial, defendant’s counsel is best able to determine
proper tactics in the light of the jury’s apparent reaction to the proceedings.”’” (People v.
Frierson (1979) 25 Cal.3d 142, 158.) In any event, defense counsel did cross-examine C.
on some key inconsistencies in her pretrial statements—indeed, there were 11 pages of
C.’s cross-examination. In addition, counsel’s closing argument stressed the
inconsistencies in C.’s overall account, including her lapses in memory regarding certain
details of the incidents.
We cannot therefore conclude that counsel was unreasonable in his tactical
choices with this child victim. Under the circumstances, this was the best course of
action available, and counsel steered clear of a style of questioning that would probably
have done more harm than good. “A defendant is entitled only to a fair trial with
competent representation. Counsel, in order to appear competent, need not indulge in
idle [or risky] acts.” (People v. Wallin (1981) 124 Cal.App.3d 479, 484.) Moreover,
since the reasons for counsel’s decisions are not in the record, the judgment should be
affirmed in any event. (People v. Ledesma (2006) 39 Cal.4th 641, 746; People v. Jones
(2003) 30 Cal.4th 1084, 1115; People v. Mendoza Tello (1997)15 Cal.4th 264, 266-268.)
Defendant’s claim of ineffective assistance may also be disposed of on the ground
that he has failed to show sufficient prejudice. (People v. Kipp (1998) 18 Cal.4th 349,
366.) We believe that if more inconsistencies in C.’s testimony compared to the
preliminary hearing testimony had been brought out it would not have changed the
verdict. The jury was instructed on imperfect memory with CALCRIM No. 226 and
given guidance on evaluating a child witness with CALCRIM No. 330. The jury no
doubt took these instructions into account. The evidence against defendant was
overwhelming, since he admitted the most crucial elements of C.’s testimony. Defendant
cannot show that, but for his attorney’s performance, there is a reasonable probability the
result would have been different.
8
II. Complaining Witness’s Motive to Lie
A. Defendant’s Argument
Defendant argues that trial counsel, in his cross-examinations of C. and G., failed
to make any link between the child custody issues with C. and a motive to falsely accuse
defendant—this despite counsel’s implications in closing argument that the change in
custody was C.’s motive for lying.
Defendant also contends counsel completely failed to pursue another potential
motive for false accusations: that C. was upset about her mother accusing her of poor
hygiene. According to defendant, counsel should have asked more questions about the
hygiene issue.6
B. Relevant Authority
An attorney representing a criminal defendant has the power to control the court
proceedings, and defendant must do more than allege poor tactics on the part of his trial
attorney or suggest more effective ways of handling the case in order for this court to find
ineffective assistance. (People v. Kirkpatrick (1972) 7 Cal.3d 480, 486; People v. Floyd
(1970) 1 Cal.3d 694, 704; People v. Gbadebo-Soda (1995) 38 Cal.App.4th 160, 173.)
C. Counsel Not Ineffective
As stated previously, counsel was likely wary of appearing to harass the child
victim. A child witness is not merely a small adult who can be asked the same types of
questions in the same manner. Also, counsel faced the problem that G. had made no
move to regain custody of her children and W.’s financial support after C. accused
defendant of molesting her. Counsel used the fact of the lost support as well as he could
6 Defendant suggests counsel should have asked C. whether there had been a long-
term hygiene issue, whether C. was punished in the past for not keeping clean, whether
C. was ashamed of herself for not keeping clean, whether she created a sexual abuse
claim to divert her mother’s attention from her lack of cleanliness and to avoid further
embarrassment or punishment, and whether defendant was telling the truth when he said
he may have unintentionally touched her private parts while both were clothed and C.
exaggerated the inadvertent touching.
9
by planting the seed in the jurors’ minds that such a motive was possible and leaving it at
that.
As for exploiting the mention of C.’s possible lack of hygiene, there was no profit
in humiliating the victim on this point. Moreover, there was no evidence that G. scolded
C. for a lack of hygiene to the degree that C. would be motivated to invent an elaborate
story to escape blame.
It appears from the record that counsel was aware that both of these theories of
motive were not of much benefit and emphasized instead defendant’s lack of opportunity
to engage in the sexual offenses due to the impossibility of defendant’s finding a time
when he could be alone with C. or C. and her younger brother. As noted, “‘[b]ecause of
the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.”
[Citation.]’” (People v. Lewis, supra, 50 Cal.3d at p. 288.) Here, defendant has failed to
carry his burden to affirmatively show error. “‘There are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys would
not defend a particular client in the same way.’ [Citation.]” (People v. Lewis, supra, 50
Cal.3d at p. 288.) Accordingly, defendant’s claim of ineffective assistance of counsel
fails.
III. Complaining Witness’s Extrajudicial Statements
A. Defendant’s Argument
Defendant contends that C.’s out-of-court statements were presented to the jury as
substantive evidence without limitation because the trial court erred by reading
CALCRIM No. 3037 while failing to inform the jury of the testimony to which it applied.
7 The trial court read CALCRIM No. 303 to the jury as follows: “During the trial,
certain evidence was admitted for a limited purpose. You may consider that evidence
only for that purpose and no other.”
10
Defendant next contends the prosecution brought forth several out-of-court statements
made by C. without objection or pertinent cross-examination by defense counsel.
According to defendant, all of these statements were extremely damaging hearsay
evidence that violated defendant’s statutory rights and constitutional right to confront
witnesses, since the court instructed the jury that the prior statements were being offered
for credibility issues and for the truth of the matter.8 Defendant asserts that, had the jury
only considered C.’s trial testimony, there would have been a reasonable likelihood of a
more favorable outcome.
B. C.’s “Fresh Complaint” and the Limiting Instruction
The trial court permitted G. to testify that C. complained to her of pain in her
vaginal area and, when G. questioned her, C. said that her grandfather had touched her
private parts. The statement was admitted under the “fresh complaint” exception to the
hearsay rule, and G. was not permitted to testify to details of the sexual acts. (People v.
Brown (1994) 8 Cal.4th 746, 749-750 (Brown); People v. Burton (1961) 55 Cal.2d 328,
351.)
“[P]roof of an extrajudicial complaint, made by the victim of a sexual offense,
disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—
namely, to establish the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others—whenever the fact that the disclosure was made and
the circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred.” (Brown, supra, 8 Cal.4th 746, 749-
750.) Our Supreme Court has emphasized that “evidence of the victim’s report or
8 The trial court read CALCRIM No. 318 to the jury as follows: “You heard
evidence of statements that a witness made before the trial. If you decide the witness
made those statements, you may use those statements in two ways: one, to evaluate
whether the witness’s testimony in court is believable, and, two, as evidence that the
information in those earlier statements is true.” The court also read CALCRIM No. 226,
which lists factors for the jury to consider in evaluating a witness’s testimony, among
which is the following factor: “Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?”
11
disclosure of the alleged offense should be limited to the fact of the making of the
complaint and other circumstances material to this limited purpose.” (Id. at p. 763) G.’s
testimony was properly admitted under this doctrine and was nonhearsay. Her testimony
sufficiently lacked detail so as to avoid being classified as hearsay and were therefore
admissible under Brown.
Defendant argues that the court erred by failing to inform the jury that it was this
fresh complaint testimony that was to be limited in purpose and use. This allowed the
jury to use C.’s statement for the truth of the matter asserted. As stated in Brown, a trial
court has no sua sponte duty to provide a limiting instruction with respect to fresh
complaint evidence. (Brown, supra, 8 Cal.4th at p. 757; see also People v. Manning
(2008) 165 Cal.App.4th 870, 880.) During the discussion of jury instructions, the
prosecutor requested that the trial court read CALCRIM No. 303 regarding the fresh
complaint statement and the expert testimony. The court noted that there had been no
request for it when the evidence was presented, but stated it would give the instruction
anyway, and the parties could clarify it in argument. Thus, the record shows that
defendant did not request such an instruction at the time the evidence was presented and
did not object to the content of the instruction at the close of trial. He therefore forfeited
any complaint regarding this instruction. Furthermore, the prosecutor explained during
closing argument, “There were two things that were admitted for a limited purpose, and
[one] was [G.]’s statement that [C.] said Grandpa sexually abused her. That was for a
limited purpose that the complaint was made.” We disagree with defendant that the
giving of CALCRIM Nos. 200 and 222,9 which instruct the jury to follow the court’s
9 CALCRIM No. 200 was read in pertinent part as follows: “You must follow the
law as I explain it to you, even if you disagree with it. If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my instructions.”
CALCRIM No. 222 was read in pertinent part as follows: “Evidence is the sworn
testimony of witnesses, the exhibits admitted into evidence, and anything else I told you
to consider as evidence. Nothing that the attorneys say is evidence. In their opening
statements and closing arguments, the attorneys discuss the case, but their remarks are
not evidence.”
12
instructions if the attorneys’ comments conflict and that nothing the attorneys say is
evidence, effectively told the jury it had a duty to disregard the prosecutor’s explanation.
did not conflict with the jury instruction, and it did not purport to be evidence in itself.
Her explanation was actually helpful to the defense. Therefore, defendant was not
prejudiced by the lack of a more detailed instruction.
Defendant argues that because the hearsay affected defendant’s substantial
rights— to confront and cross-examine witnesses and to due process—counsel’s lack of
objection to the court’s failure to identify the fresh complaint testimony as the evidence
being limited does not prevent review. Although we have identified grounds for
forfeiture, we have not denied review, having found that defendant was not prejudiced by
the challenged instruction even if error occurred. Defendant’s claim on this point must
therefore fail.
Defendant cites the same alleged trial court error as a violation of defendant’s
confrontation right. He argues that C.’s statements to her mother were testimonial in
nature because it is reasonable to believe that G.’s questioning of her daughter would
have elicited a statement that would be available for use in prosecution. We disagree.
In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court
held that, “when the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of [the declarant’s] prior testimonial
statements.” (Id. at p. 59, fn. 9.) C. testified in the prosecution’s case-in-chief and was
cross-examined. Also, Crawford does not apply to nonhearsay statements admitted under
the fresh complaint doctrine because the confrontation clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Id. at p. 59, fn. 9.) Though no comprehensive definition of testimonial has
been articulated, Crawford notes that at a minimum, it includes “prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” (Id. at p. 68.) These concrete examples show that a testimonial
statement requires a more formal setting than a conversation between a child and her
mother. (Id. at pp. 51-52.)
13
C. C.’s Other Out-of Court Statements
Defendant next contends that the prosecutor asked Officer Campos questions
eliciting narrative answers and clear hearsay, with the result that Officer Campos gave
detailed testimony regarding C.’s out-of-court statements without objection. In addition,
the prosecutor asked Detective Acevedo what C. said about the sexual abuse without a
hearsay objection from defense counsel or thorough cross-examination. Defendant also
points out that the prosecutor asked C. on direct examination about being questioned by
police officers at the hospital and elicited that C. had told them “the truth.” The
prosecutor also elicited that C. recalled being questioned by Detective Acevedo, and she
confirmed that she told him “the truth.” C. also informed the jury she had recently met
with the prosecutor and Detective Acevedo in the prosecutor’s office and told them “the
truth.” Counsel did not object or cross-examine with regard to these extremely damaging
prior consistent statements without foundation, which were admitted in violation of
Evidence Code sections 791 and 1200.10 Defendant argues that counsel’s failure to
object to this hearsay was also a violation of his constitutional right to confront witnesses
under Crawford.
Absent an express or implied charge that a witness’s trial testimony is recently
fabricated or influenced by bias or improper motive, evidence of a prior consistent
statement is not admissible. (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. 6;
People v. Frye (1985) 166 Cal.App.3d 941, 950.) “[A] prior consistent statement is
admissible if it was made before the existence of any one or more of the biases or
motives that, according to the opposing party’s express or implied charge, may have
influenced the witness’s testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609; Evid.
Code, § 791.)
10 Defendant also says the statements were admitted in violation of Evidence Code
section 1231, but this must be an error, since that section addresses decedents’ sworn
statements regarding gang-related crimes.
14
Defendant must overcome presumptions that counsel was effective and that the
challenged action might be considered sound trial strategy. (In re Jones (1996) 13
Cal.4th 552, 561.) We consider counsel’s overall performance throughout the case,
evaluating it from counsel’s perspective at the time of the challenged act or omission
and in light of all the circumstances. (People v. Bolin (1998) 18 Cal.4th 297, 335.) “To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation . . . .’ [Citation.]” (Id. at p. 333; see also People v. Mai, supra, 57 Cal.4th at
p. 1009.)
Officer Campos succinctly recounted C.’s statement at the hospital—an account
that was largely consistent with her trial testimony. Detective Acevedo’s testimony
regarding C.’s statements was extremely brief, since the bulk of his testimony was
devoted to defendant’s admissions. Had defense counsel objected, the prosecutor could
have sought admission of the prior statements to Detective Acevedo and to Officer
Campos under Evidence Code section 1360, which provides a hearsay exception for
statements by children under the age of 12 in child abuse cases.11 Thus, the evidence was
11 Evidence Code section 1360 provides, in pertinent part: “(a) In a criminal
prosecution where the victim is a minor, a statement made by the victim when under the
age of 12 describing any act of child abuse or neglect performed with or on the child by
another, or describing any attempted act of child abuse or neglect with or on the child by
another, is not made inadmissible by the hearsay rule if all of the following apply: [¶]
(1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court
finds, in a hearing conducted outside the presence of the jury, that the time, content and
circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child
either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which
case the statement may be admitted only if there is evidence of the child abuse or neglect
that corroborates the statement made by the child. [¶] (b) A statement may not be
admitted under this section unless the proponent of the statement makes known to the
adverse party the intention to offer the statement and the particulars of the statement
sufficiently in advance of the proceedings in order to provide the adverse party with a fair
opportunity to prepare to meet the statement.”
15
not inadmissible per se. (See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 757-758
[defendant’s hearsay arguments regarding witness’s statements erroneously assume
prosecutor could not have demonstrated admissibility under other provisions of the
Evidence Code].) As in Dykes, however, we need not speculate whether the prosecutor
could have established the proper foundation for these statements because the admission
of C.’s statements to the police was harmless in light of defendant’s admissions to
Detective Acevedo and C.’s compelling testimony. (see Dykes, at p. 759.)
Defendant also appears to object to C.’s statements, elicited by the prosecutor, that
she told the truth to officers at the hospital, to Detective Acevedo, and to the prosecutor
herself. Given that admission of the statements to Detective Acevedo and Officer
Campos were harmless beyond a reasonable doubt, we perceive no prejudice in allowing
the prosecutor to question C. about her truthfulness on those occasions.
Defendant has not demonstrated that it was reasonably probable that exclusion of
the consistent statements would have led to a more favorable verdict. Therefore,
defendant suffered no prejudice and counsel cannot be found ineffective. Likewise, we
conclude defendant’s constitutional right to confront witnesses and to due process were
not violated. “The Confrontation Clause is not violated by admitting a declarant’s out-of-
court statements, as long as the declarant is testifying as a witness and subject to full and
effective cross-examination.” (California v. Green (1970) 399 U.S. 149, 158; see also
People v. Hayes, supra, 52 Cal.3d at p. 610.)
IV. Defendant’s Incriminating Statements
A. Defendant’s Argument
Defendant contends his trial counsel was prejudicially ineffective in defending
against his incriminating statements to Detective Acevedo. He makes several arguments
under this rubric: (1) counsel was ineffective for failing to file a Pitchess12 motion
regarding Detective Acevedo; (2) counsel was ineffective for failing to file a motion to
12 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess).
16
suppress the statements, since defendant received no Miranda13 advisement; (3) counsel
failed to thoroughly cross-examine Detective Acevedo; and (4) a false confession expert
should have been called to testify on behalf of defendant, since his statements were
equivocal and ambiguous.
B. Pitchess Motion
Assuming defense counsel could have produced an affidavit with information
sufficient to trigger discovery of some type of prior police misconduct on the part of
Detective Acevedo, defense counsel’s failure to do so does not equate to ineffective
assistance.14 The record contains no evidence from which an inference could be drawn
that a successful Pitchess motion would have elicited evidence of one or more prior
instances of relevant improper conduct by the detective. Even if the Pitchess motion
uncovered personnel complaints against Detective Acevedo, defendant has failed to show
the result of the trial would have been different. The evidence against defendant was
very strong. In addition, Detective Acevedo’s testimony was corroborated by the
recording played for the jury. Thus, defendant has failed to show any “possible
prejudice” flowing from the failure to file a timely Pitchess motion. (See In re Avena
(1996) 12 Cal.4th 694, 730.)
In the context of a failure to investigate a claim, an appellant “must demonstrate
that counsel knew or should have known that further investigation was necessary, and
must establish the nature and relevance of the evidence that counsel failed to present or
13 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
14 In Pitchess, the California Supreme Court held that a criminal defendant is entitled
to discovery of the personnel files of officers if the information contained in the records
is relevant to the defendant’s ability to defend against the charge. (Pitchess, supra, 11
Cal.3d at pp. 535-536.) The trial court determines whether there is good cause for the
disclosure. (Evid. Code, § 1043; Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1019.) Good cause for such discovery is shown “‘first by demonstrating the materiality
of the information to the pending litigation, and second by “stating upon reasonable
belief” that the police agency has the records or information at issue. [Citation.]”’
(Zanone v. City of Whittier (2008) 162 Cal.App.4th 174, 187.)
17
discover.” (People v. Williams (1988) 44 Cal.3d 883, 937.) Defendant must show
specifically what would have been uncovered and that the failure to discover or present
the evidence was prejudicial. (Ibid.) The failure to make the motion is not enough.
Accordingly, defendant cannot show a reasonable probability that a more
favorable determination would have been made had his counsel brought a Pitchess
motion. Because the record does not reveal that defense counsel’s representation fell
below an objective standard of reasonableness in this regard under prevailing
professional norms, his claim of ineffective assistance of counsel is rejected.
C. Lack of Miranda Warnings
Miranda warnings are required only when a person is subjected to custodial
interrogation. (Miranda, supra, 384 U.S. at p. 444.) “Custody” in this context includes
actual custody and any situation in which a person has been deprived of his freedom of
action in a significant way. (People v. Mickey (1991) 54 Cal.3d 612, 648.) Not all police
inquiries amount to interrogations that require Miranda warnings. Preliminary inquiries
seeking to obtain identifying information or to investigate a suspicion of criminal
conduct, may not require Miranda warnings. (People v. Morris (1991) 53 Cal.3d 152,
198, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.
1.) The rule excluding preliminary inquiries from the scope of Miranda “recognizes the
value of routine and nonintrusive police inquiry before arrests and accusations are made.
Such inquiry serves to minimize mistakes and protect the innocent.” (Morris, at p. 198.)
“In determining whether an individual was in custody, a court must examine all of
the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply
whether there [was] a “formal arrest or restraint on freedom of movement” of the degree
associated with a formal arrest.’ [Citation.]” (Stansbury v. California (1994) 511 U.S.
318, 322.) “Miranda warnings are not required ‘simply because the questioning takes
18
place in the station house, or because the questioned person is one whom the police
suspect.’ [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 402.)15
Under the totality of the circumstances here, defendant was not in custody when
police spoke with him. Detective Acevedo was the only police officer in the room, and
nothing in the record suggests that he attempted to intimidate, place pressure on, or
threaten defendant. Defendant was not physically restrained during the interview of
approximately half an hour. Defendant came voluntarily to the interview and his wife
was waiting for him, indicating that he believed he was free to leave. Indeed, he was told
he was free to leave. Under these circumstances, a reasonable person in defendant’s
position would not have considered himself to be in police custody. Therefore, any
motion to suppress defendant’s admissions would have been without merit, and counsel
is not required to file meritless motions to avoid later claims of ineffective assistance.
(People v. Taylor (1984) 162 Cal.App.3d 720, 726.) Counsel was not ineffective.
D. Cross-Examination of Detective Acevedo
Defendant criticizes trial counsel for not thoroughly cross-examining Detective
Acevedo. As we have noted, counsel may have had tactical reasons for limiting his
15 Courts have identified a variety of circumstances relevant to the determination of
whether the defendant was in custody, including the following: “whether contact with
law enforcement was initiated by the police or the person interrogated, and if by the
police, whether the person voluntarily agreed to an interview; whether the express
purpose of the interview was to question the person as a witness or a suspect; where the
interview took place; whether police informed the person that he or she was under arrest
or in custody; whether they informed the person that he or she was free to terminate the
interview and leave at any time and/or whether the person’s conduct indicated an
awareness of such freedom; whether there were restrictions on the person’s freedom of
movement during the interview; how long the interrogation lasted; how many police
officers participated; whether they dominated and controlled the course of the
interrogation; whether they manifested a belief that the person was culpable and they had
evidence to prove it; whether the police were aggressive, confrontational, and/or
accusatory; whether the police used interrogation techniques to pressure the suspect; and
whether the person was arrested at the end of the interrogation.” (People v. Aguilera
(1996) 51 Cal.App.4th 1151, 1162.) No single factor is dispositive; their interplay and
combined effect must be assessed. (Ibid.)
19
cross-examination to the questions he asked. Therefore, the judgment must be affirmed.
(People v. Ledesma, supra, 39 Cal.4th at p. 746; People v. Jones, supra, 30 Cal.4th at p.
1115.) Defendant suggests challenging questions that should have been asked regarding
the malfunctioning recorder.16 He also suggests questions regarding the detective’s
investigatory tactics.17 Defendant asserts his statement is riddled with ambiguities and
uncertainty, and counsel should have questioned the detective as to each of the equivocal
statements. Defendant again presents a litany of questions counsel should have asked.18
Detective Acevedo’s testimony and the recorded portion of the interview clearly
showed defendant had admitted the acts of molestation described by C. It is highly likely
counsel did not wish to have the sordid minutiae of defendant’s acts repeated and
analyzed so as to ingrain them in the minds of the jury members. As for the tape recorder
malfunction, Detective Acevedo explained what had happened, and his testimony
indicates there was little more to be said on the subject, leaving a credibility issue for the
jury to resolve. The questions suggested by defendant have the transparent purpose of
16 “Was it really a malfunction or an intentional act of the detective? Did the
detective intentionally fail to record the interview to allow him to manipulate the
appellant without having his tactics and methods scrutinized? Had this type of recording
malfunction occurred in any of his previous interviews with suspects? Did the recorder
have an indicator for how much memory was available? If so did he view it prior to
recording appellant’s statement? Was the recorder available for the jury to view? Did
the detective take notes during the first interview?”
17 “Did the detective’s method of interrogation cause the appellant to change from
statements of complete denial to admitting to portions of the victim’s allegations? How
much information about the victim’s statements had been told to appellant? If appellant
sat silently and then made incriminating statements, then why did it take 25-30 minutes
for him to give the first statement when the second statement was only 7 minutes?”
18 A few of the questions defendant suggests are: “Were the statements made during
the first interview similar in their uncertainty as the second statement? What were the
exact words used when appellant admitted acts of sexual abuse? If appellant did not say
his penis was erect, but that he was aroused, what exactly was said about the arousement
[sic]? Why did appellant not admit arousal in the tape recorded statement when he was
asked if he was aroused when he touched her private areas? (CT 97)”
20
impugning the detective’s honesty, and it is unclear what counsel would have gained by
doing so, except to imply to the jury by means of his questions that the detective had
deliberately not recorded the interview and was lying about defendant’s statements. The
manner of cross-examination is within counsel’s discretion and “‘rarely implicate[s]
ineffective assistance of counsel.’” (People v. Mai, supra, 57 Cal.4th at p. 1018.)
Defense counsel did elicit that most of the interview was not recorded. Counsel also
posed questions designed to determine if defendant had been manipulated. Counsel
asked the detective if anything had been promised to defendant—such as that he would
be free to go if he admitted everything—and whether the detective had employed ruses or
outright lies. Defendant chose not to testify and thus did not deny the truth of his
interview statements, and no other evidence was offered to call into question the
admissions. Defendant’s list of questions that were not asked does not persuade us to
conclude counsel’s cross-examination of the detective amounted to ineffective assistance.
As for defendant’s claim that his recorded statement was not a clear and
unequivocal confession to the molestation allegations, and that trial counsel should have
established by means of investigation, expert testimony, questioning, and evidence that
the admissions were the result of manipulation, we conclude that defendant has not
shown that counsel did not investigate this issue and determine that his limited
questioning of the detective was the appropriate strategy. In the seminal case regarding
ineffective assistance of counsel, the California Supreme Court stated that a reviewing
court “should avoid second-guessing counsel’s informed choice among tactical
alternatives” and should only conclude performance was constitutionally deficient if
“trial counsel makes a critical tactical decision which would not be made by diligent,
ordinarily prudent lawyers in criminal cases.” (People v. Pope (1979) 23 Cal.3d 412,
424.) We do not reach that conclusion in defendant’s case.
E. False Confession Expert
In People v. Linton (2013) 56 Cal.4th 1146 (Linton), the Court considered a claim
that exclusion of expert testimony about false confessions was an abuse of discretion and
violated the defendant’s right to present a defense. The Linton court rejected the claim,
21
concluding that where there was a “dearth of evidence indicating a false admission or
confession,” as well as a “multitude of corroborative evidence . . . that suggested
defendant’s admissions and confession were true.” (Id. at p. 1182.) Under these
circumstances, “it fell within the trial court’s broad discretion to determine that [the
expert’s] proffered testimony had, at most, minimal probative value, which was
substantially outweighed by its likely undue consumption of time. [Citations.]” (Ibid.)
Likewise, in the instant case, there was a dearth of evidence indicating that
defendant’s confession was false. Defendant cannot show that even if trial counsel had
sought such an expert, the trial court would have allowed the testimony, given the
decision in Linton. Like the defendant in Linton, “[a]s was his right, defendant did not
testify and thus did not deny the truth of his interview statements. There was no other
evidence offered that logically called into question the veracity of his admissions.” (Id. at
p. 1181.) Whether to call particular witnesses is a matter of trial tactics that a reviewing
court may not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.)
Defendant offers no explanation as to what such an expert would show that was
favorable to his defense, such as certain psychological factors he might possess that
would have led to a false confession, or specific police tactics apart from those about
which defense counsel inquired. Furthermore, CALCRIM No. 358 instructed the jury
that it was free to decide whether defendant made the oral statement attributed to him in
whole or in part. The jury members were told it was up to them to decide the importance
of the statement and to consider it with caution unless it was recorded or written. The
jury was also instructed that defendant could not be convicted based on his statement
alone. (CALCRIM No. 359.) Under the circumstances of this case, the jury could
understand and evaluate all of the evidence presented regarding defendant’s admissions
without the assistance of an expert.
A defendant must “do more than surmise that defense experts might have provided
more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th 415, 448, fn. 5.)
Defendant’s ineffective assistance claim lacks merit.
22
V. Stipulation
A. Defendant’s Argument
Defendant contends trial counsel’s errors were compounded when he stipulated
that: “Dr. Escalona did not perform a sexual assault examination, nor did she refer [C.]
for such an exam based on the length of time that had elapsed from the last incident to the
date of treatment.” According to defendant, trial counsel in effect agreed that there were,
in fact, multiple sexual assaults on C., which constituted conduct below reasonable
professional standards and caused prejudice.
B. No Ineffective Assistance
We disagree with defendant. In light of G.’s testimony and the subsequent
evidence and argument presented by the defense, there was no reasonable probability that
the jury would construe that defendant was admitting his guilt with this stipulation. G.
testified that the doctor’s only suggested remedy for C.’s complaint was to “have her
clean, take a shower and put clean clothes.” The doctor found only that C.’s “private
parts” were “a little bit irritated.” After the parties stipulated, the defense called W., who
testified repeatedly to the fact that C. was never left alone with defendant, which was the
basis of the defense. Furthermore, the fact that C. complained of pain only after a
considerable amount of time had passed was beneficial to the defense case and detracted
from the credibility of the accusations. Finally, the need for or lack of a sexual assault
examination was never an issue in this case and was not mentioned in oral argument by
either party. We believe that entering into the stipulation fell within the permissible
range of trial tactics of a reasonably competent attorney. Accordingly, the claim of
ineffective assistance of counsel lacks merit.
VI. Cumulative Prejudice from Alleged Ineffective Assistance of Counsel
Defendant contends counsel’s multiple errors at trial amounted to ineffective
assistance of counsel and violations of his constitutional rights. According to defendant,
he has shown prejudice from the cumulative impact of the multiple deficiencies even if
no single error significantly impaired the defense.
23
We have concluded that no prejudicial error occurred. Accordingly, there was no
error to accrue to defendant’s prejudice. (People v. Sanders (1995) 11 Cal.4th 475, 565;
People v. Cudjo (1993) 6 Cal.4th 585, 630.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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