Opinion
C082908
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE BETZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05967) OPINION ON RECALL OF REMITTITUR
Defendant Richard Lee Betz appeals his conviction following a jury trial for committing 18 counts of lewd and lascivious acts upon a child under the age of 14. On appeal, he contends the trial court erred when it failed to instruct the prospective jurors not to conduct independent research and compounded the error by failing to replace the jury panel when a prospective juror made a statement based on his independent research; erred by instructing the jury that it could consider expert testimony as evidence that the complaining witness was telling the truth; and that these two errors were separately and cumulatively prejudicial. Defendant also contends his trial counsel rendered ineffective assistance when he requested the trial court to provide a "firecracker" instruction to the jury after they indicated they could not agree on a finding of guilt as to a single charged count.
We issued an opinion in this case on October 30, 2017, and, following denial of defendant's petition for review to the Supreme Court, remittitur issued in this case on January 18, 2018. On February 14, 2018, defendant moved this court to recall the remittitur and to permit supplemental briefing on whether we should remand this matter for the limited purpose of allowing the trial court to conduct a hearing as contemplated by People v. Franklin (2016) 63 Cal.4th 261 (Franklin) in light of a recent statutory amendment. We granted defendant's request. Upon consideration of the supplemental briefing, we will remand this matter for the limited purpose of conducting such a hearing and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Due to the nature of the issues raised on appeal, we limit our recitation of the factual and procedural background to the following: Defendant was charged with 18 counts of violating Penal Code section 288, subdivision (a), which makes it a felony for a person to "willfully and lewdly commit[] any lewd or lascivious act . . . upon or with the body . . . of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." It was alleged he had committed these acts from the time the child was six through 13 years old. It was stipulated that after she repeatedly denied any incidents of sexual abuse, the child reported the alleged abuse when she was 16 years old. A jury found defendant guilty of all 18 counts, and the trial court sentenced him to an aggregate term of 42 years in state prison.
Undesignated statutory references are to the Penal Code.
Additional facts are provided as relevant in the ensuing discussion.
DISCUSSION
1.0 Admonition Against Engaging in Independent Research
In a two-part argument, defendant contends the trial court prejudicially erred by failing to instruct prospective jurors that they were prohibited from conducting independent research and by failing to dismiss the entire prospective jury panel after a single prospective juror divulged in voir dire his own independent research and resulting conclusion. We are not persuaded.
During the second day of voir dire, prior to the swearing in of the jury, it was revealed that one of the prospective jurors had conducted independent research which he thought might make him partial. The following colloquy was had before the rest of the prospective jurors:
"[PROSPECTIVE JUROR]: So the question was brought up, would a child ever tell a lie saying that she had been sexually assaulted.
"[PROSECUTOR]: Sure.
"[PROSPECTIVE JUROR]: I believe that that could be the case, that could happen. But looking at 18 different times of saying that she had been sexually assaulted when she was 6, when she was 12, when she was 14, 18 different cases, it kind of like—it kind of starts to becoming, like, to me, like maybe she's reaching out for something and it's not a lie, kind of taking that into consideration, because it seems strange to me like it's a lot of times, 18 different times.
"[PROSECUTOR]: Right. Does that—when you were thinking about that in your mind, did that make you feel that you—if you were seated as a juror in the box or as an alternate, did that make you feel like it would be impossible for you to be a fair and impartial juror?
"[PROSPECTIVE JUROR]: It made it a little less to me to be more partial than to be more unfair, thinking about it overnight. But the reason for this is that I was just thinking of it as like data, like looking at, like, data of people, like, saying that they've been convicted of sexual assault and if there's been a lot of cases of, like, saying more than one time, saying that they had been convicted by someone, sexual assault, what are the outliers and what is the average of these cases. So I did a lot of reading about—online about stuff like this, just like looking at data, science, data, was I not supposed to do that?
"[THE COURT]: You did last night?
"[PROSPECTIVE JUROR]: Yeah.
"[THE COURT]: Yeah, that's not permitted.
"[PROSPECTIVE JUROR]: Okay. Sorry. I didn't know.
"[THE COURT]: Well—and just so that it is clear to everybody, you should not look up on the Internet, communicate on the Internet.
"[PROSPECTIVE JUROR]: I wasn't communicating with anybody.
"[THE COURT]: Right.
"[PROSPECTIVE JUROR]: This is just on my own personal computer.
"[THE COURT]: Here's what I need to say.
"[PROSPECTIVE JUROR]: I apologize, Your Honor
"[THE COURT]: Here's what I need
"[PROSPECTIVE JUROR]: Now I feel bad.
"[THE COURT]: Please stop talking. [¶] Just so that everybody is clear, you should not communicate with anybody on the Internet about anything going on with the case. Also, you should not do any kind of research on the Internet about these kind of crimes, this court, the proceedings, anybody who is involved in the proceedings. [¶] Is there anybody who did anything like that last night? You know what, I should have been more clear.
"[PROSPECTIVE JUROR]: I've never been on a jury before. I'm a data scientist, so I don't know."
Then, following an unrecorded discussion in chambers between the trial court and counsel, the trial court dismissed the prospective juror. It then instructed the remaining prospective jurors, "[p]robably yesterday would have been a better time to say it, that you cannot have any communication, do any research, on your own or as a group, about anything involved in the case or people or subjects involved in the case. There's actually an instruction about that. It's not included in my admonition as you leave. [¶] The reason that comes up is, obviously, everybody has to have the same information, has to come from the witness stand, has to be presented by an attorney, the other attorney has to have the opportunity to cross-examine it, both attorneys have to have the opportunity to present evidence that supports that testimony or that attacks that testimony. And unless information has been through that process, sometimes called a crucible, the information is through that process, it's not sufficiently reliable for you to take into the jury room and make your verdicts on it."
We begin with defendant's argument that the trial court erred by failing to instruct the prospective jurors that they were prohibited from engaging in independent research. "After the jury has been sworn and before the people's opening address, the court shall instruct the jury generally concerning its basic functions, duties, and conduct," including "[t]hat the jurors shall not . . . conduct research . . . ." (§ 1122, subd. (a)(1), italics added; see People v. Karis (1988) 46 Cal.3d 612, 642; People v. Carter (2010) 182 Cal.App.4th 522, 532; People v. Castro (1986) 184 Cal.App.3d 849, 853-854; People v. Sutter (1982) 134 Cal.App.3d 806, 820.) However, here, no jury had yet been sworn when the prospective juror engaged in and divulged his independent research, so the statutory instruction requirement did not apply. (People v. Weaver (2001) 26 Cal.4th 876, 908.) Thus, while it may be " 'sound judicial practice' " to instruct prospective jurors on the prohibition against independent research, the failure to provide such an instruction prior to the swearing in of the jury is not error. (Id. at pp. 908-909.)
That said, we must still address the second portion of defendant's argument—that the trial court ought to have dismissed the entire jury panel following the prospective juror's pronouncement of his research and conclusions because that pronouncement effectively tainted the rest of the prospective jurors. It is unclear from the record whether defendant's counsel asked the trial court in an unrecorded conversation to dismiss the panel. If not, he forfeited the contention on appeal. (Weaver, supra, 26 Cal.4th at p. 909.) Regardless, because defendant alternatively argues that either the court erred by failing to dismiss the entire panel of prospective jurors or counsel rendered ineffective assistance by failing to ask the court to dismiss the panel, we reach the claim on the merits.
Defendant argues that though the trial court did not expressly admonish the jury panel not to consider anything the dismissed prospective juror said as evidence, even if it had done so, such an admonition would not be effective. We first note the trial court did admonish the panel—following the prospective juror's statement—that the jury could not "take into the jury room and make . . . verdicts on" any information that had not "come from the witness stand" or been presented by an attorney with an opportunity for cross-examination. Additionally, at the conclusion of the trial, the trial court instructed the jury that "[e]vidence is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I told you to consider as evidence." Thus, the trial court did instruct the jury that the dismissed prospective juror's statement could not be considered as evidence.
Next, we reject defendant's claim that the prospective juror's rambling and inarticulate comment—suggesting that a greater number of claims of abuse makes the claims more believable—could not be cured by an admonition. He asserts the prospective juror's statement was prejudicial, and that the prejudicial effect of the statement was "magnified" by the prospective juror's self-professed status as a " 'data scientist.' " Defendant acknowledges that " 'discharging the entire venire [(or in this case, panel)] is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant.' " (Quoting People v. Medina (1990) 51 Cal.3d 870, 888.) He further acknowledges that the trial court retains " 'broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire [(or, panel)] to such an extent that its discharge is required.' " (Quoting id. at p. 889.) Nevertheless, he claims in this instance the impression the prospective juror's statement made on everyone could not be cured by admonition.
In support of his claim, defendant cites two cases in which the trial court properly declined to dismiss the entire jury panel. In Medina, supra, 51 Cal.3d at pages 888 to 889, the trial court's decision not to dismiss the panel was affirmed where one prospective juror reported that several other panel members made inflammatory remarks indicating their certainty that the defendant was guilty, but those panel members did not serve on the jury, all jury members affirmed their ability to be fair and impartial, and the defendant did not exhaust his peremptory challenges. In People v. Martinez (1991) 228 Cal.App.3d 1456, 1461, 1465-1468, the trial court's decision not to dismiss the panel was affirmed where during jury selection some prospective jurors made inflammatory remarks indicating the defendant was not an upstanding citizen and was involved with drugs because he did not speak English. Defendant claims this case is worse than Medina and Martinez solely based on the prospective juror's self-professed role as a data scientist, which defendant claims would cause the other prospective jurors to believe him and be unable to disregard his comments. We are not persuaded that in this instance the jurors were unable to disregard the prospective juror's statement, if indeed they understood it to convey what defendant claims it does.
Therefore, defendant has not shown the trial court abused its discretion by failing to excuse the panel, if defense counsel so requested. Neither has he shown that counsel rendered ineffective assistance for failing to so request, because he has not shown a reasonable probability that the court would have ordered a new panel if counsel had so requested. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [defendant must show both that his counsel's representation was deficient and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"] (Strickland); People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [an insufficient showing on either component dooms the ineffective assistance claim to failure] (Rodrigues).) Accordingly, defendant has not demonstrated error based on the prospective juror's statement, either in the timing of the instruction or the lack of dismissal of the jury panel.
2.0 CALCRIM NO. 1193
An expert provided testimony regarding child sexual abuse accommodation syndrome (CSAAS), and the trial court, in conformity with CALCRIM No. 1193, instructed the jury regarding how it could consider that expert testimony as follows: "You have heard testimony from [an expert] regarding child sexual abuse accommodation syndrome. [The expert's] testimony about sexual accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [the alleged victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
On appeal, defendant contends this standard jury instruction improperly instructs the jury that it may consider the expert's testimony "as evidence of the defendant's guilt" rather than conveying the limited purpose of the testimony as set forth in People v. Housley (1992) 6 Cal.App.4th 947, 959, that the expert testimony on CSAAS " 'is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested' " and " 'is not intended and should not be used to determine whether the victim's molestation claim is true.' " Specifically, defendant contends that because the instruction is worded in a way that affirmatively explains the limited way in which the jury can use the expert testimony, rather than stating expressly the ways in which it cannot use the testimony, it improperly permits the jury to equate a finding that "the complaining witness is believable" with the resulting conclusions that "the victim's molestation claim is true" and the defendant is guilty. We are not persuaded.
Contrary to defendant's interpretation, CALCRIM No. 1193 instructs the jury that the expert's testimony may only be used to determine whether the victim's conduct was "not inconsistent" with that of a molestation victim. This is a permissible use of the testimony. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 [expert testimony on CSAAS is "admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation"].) The instruction need not affirmatively say that the jury cannot use the testimony in other ways because it expressly limits the use of the testimony, and jurors are otherwise instructed that they may only use evidence admitted for a limited purpose for that purpose. Therefore, defendant has not shown that CALCRIM No. 1193 is an incorrect statement of the law or that it impermissibly permits the jury to use the expert testimony to corroborate the victim's claims of abuse.
Defendant additionally asserts that in a case where so much of the prosecution's evidence relies on the testimony of the child victim, jurors will be unable to discern the distinction between finding the victim credible and finding the defendant guilty. Jurors are routinely instructed to make fine distinctions about the purposes for which evidence is to be considered, and we presume jurors are capable of understanding and following those instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Defendant has not persuaded us that they would be unable to do so here, or that they would engage in the same fallacious reasoning that defendant does—that if the complaining witness is believable, then she must be telling the truth about the molestation, and the defendant must be guilty of the crime charged. Instead, the jury could find that both the complaining witness and the defendant are credible witnesses. That does not mean that the witnesses' respective interpretations of the events are true or that a crime was committed. Those are additional findings that may rely on additional evidence. Therefore, defendant has not shown that the trial court's instruction based on CALCRIM No. 1193 was erroneous.
3.0 Cumulative Prejudice
Defendant contends that even if any one of the above claimed errors is not itself sufficient to warrant reversal, the cumulative effect of those errors is sufficient to warrant reversal. Here, we have found no error by the trial court. Therefore, there is no error to cumulate.
4.0 "Firecracker" Instruction
Defendant contends he received ineffective assistance of trial counsel based on counsel's request that the trial court instruct the jurors to continue deliberations after they reported their inability to come to an agreement on count twelve. We conclude on the record before us that defendant has not met his burden to establish trial counsel rendered ineffective assistance.
To establish a claim for ineffective assistance of counsel, defendant must show both (1) that his counsel's representation was deficient, i.e., that it "fell below an objective standard of reasonableness," and (2) that prejudice resulted, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at pp. 687-688, 694; People v. Bell (1989) 49 Cal.3d 502, 546.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (Rodrigues, supra, 8 Cal.4th at p. 1126.) On direct appeal, we reverse for ineffective assistance only if the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442 ["Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions."]; People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [" 'If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention [that counsel provided ineffective assistance] must be rejected.' "].)
Here, after approximately five and a half hours of deliberations, the jury informed the trial court that it was "hung on count [twelve]" and had "exhausted all available resources." After an unreported conversation with counsel, the trial court indicated that it would provide an instruction to engage in further deliberations if either the prosecutor or defense counsel requested it to do so. Counsel for defendant requested that the trial court instruct the jury with CALCRIM No. 3551, which instructs the jury to continue deliberations and to consider several suggestions during those continued deliberations. Following an additional hour and 20 minutes of deliberations, the jury returned with a verdict finding defendant guilty of all counts.
The alleged conduct comprising the lewd and lascivious act charged in count twelve was defendant's "[p]enis to [the victim's] mouth [for the] first time," sometime when the child was 10 years old.
Here, the full instruction provided to the jury read: "Sometimes jurors that have had difficulty reaching a verdict are able to resume deliberations and successfully reach verdicts on one or more counts. [¶] Please consider the following suggestion. Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all the evidence with your fellow jurors. [¶] It's your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change a position just because it differs from that of the other jurors, or just because you or others want to reach a verdict. Both the People and defendant are entitled to the individual judgment of each juror. [¶] It's up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. Let me know if I can do anything further to help you further, such as give additional instructions, or clarify instructions I've already given you. [¶] Please continue your deliberations at this time. If you wish to communicate with me any further, please do so in writing using the form my bailiff has given you." --------
The record is silent as to defense counsel's reasons for requesting the so-called "firecracker" instruction. However, we can conceive that defense counsel could have believed the jury would return not guilty verdicts on at least some of the counts and would want the jury to ultimately acquit defendant of this count as well rather than opening him up to the possibility of retrial on that count. Indeed, here, the People indicated that they would not request the instruction because, they would decide whether to retry the count once they found out what the verdicts on the other counts were. Thus, we cannot say this plausible, tactical decision amounted to ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [because record is often silent as to counsel's reasons and there could be a plethora of possible tactical reasons, ineffective assistance of counsel claims are generally more appropriately litigated in a habeas corpus proceeding where matters outside four corners of the record may be considered].)
5.0 Limited Remand for Evidentiary Hearing
In 2013, the Legislature enacted section 3051 to afford youthful offenders a parole hearing no more than 25 years into their incarceration "to ensure they will have a meaningful opportunity for release" and to avoid the possibility that the youthful offenders' sentences be deemed the functional equivalent of a life sentence without the possibility of parole. (Franklin, supra, 63 Cal.4th at pp. 276-277.) In 2015, the Legislature increased the age of qualification for such a hearing from "under 18 years of age" at the time of the commission of the offense to "under 23 years of age." (Stats. 2015, ch. 471, § 1; Franklin, supra, 63 Cal.4th at p. 277.) That was the law at the time defendant committed the crimes charged in the current case. And, that law was deemed to have retrospective effect. (Franklin, at p. 278.)
However, in 2017, effective January 1, 2018, the Legislature again increased the age of qualification, this time to "25 years of age or younger." (Stats. 2017, ch. 684, § 1.5.) Thus, section 3051 now provides for a youth offender parole hearing for "any prisoner who was 25 years of age or younger . . . at the time of his or her controlling offense." (§ 3051, subd. (a).) The controlling offense for purposes of this provision is "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (Id., subd. (a)(2)(B).) Here, the trial court sentenced defendant to the longest term of imprisonment for count one, which was charged as having occurred between September 17, 2003, and September 16, 2004. Defendant was 25 years of age or younger during this entire period of time. Therefore, it would appear defendant qualifies for a youthful offender parole hearing under the current provisions of section 3051.
Defendant requests that we remand this matter for this limited purpose of conducting a hearing to first determine whether defendant "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing," (Franklin, supra, 63 Cal.4th at p. 284), and if it determines he did not have such an opportunity, to conduct such a proceeding (ibid.). The People, without conceding that defendant is entitled to a youth offender parole hearing, do not object to defendant's request for a limited remand. We agree with the parties that a limited remand for purposes of determining whether defendant had sufficient opportunity to develop a record of information relevant to a youth offender parole hearing is appropriate, and if the trial court determines he did not have such an opportunity, to conduct a hearing at which the parties may present "information regarding the juvenile offender's characteristics and circumstances at the time of the offense," including those types of information described in section 3051, subdivision (f) and in Franklin, supra, 63 Cal.4th at pages 283 to 284.
DISPOSITION
The judgment is affirmed, but the case is remanded to the trial court for a limited hearing to determine whether defendant was afforded an adequate opportunity to present evidence that sections 3051 and 4801 deem relevant at youth offender parole hearings. If it concludes defendant was not provided that opportunity, the trial court is directed to conduct a hearing and to accept evidence relevant to youth-related factors in a manner consistent with that described in Franklin, supra, 63 Cal.4th at pages 283 to 284.
BUTZ, J. We concur: HULL, J., Acting P. J. MURRAY, J.