Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. SWF027378 Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gary Wenkle Smith; Michael A. Scafiddi, Inc. and Jeffrey S. Bullard for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Lynne G. McGinnis, and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington J.
I
All further statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant Anthony Eugene Carraher of six sex crimes committed against his two nieces. The court sentenced him to a prison sentence of 85 years to life. On appeal, defendant makes three contentions. He claims he received ineffective assistance of counsel (IAC) violating the confrontation clause and his Sixth Amendment right to counsel and that the trial court erred in excluding the testimony of a defense expert witness and in refusing to allow defendant to file a new trial motion. We reject defendant’s arguments and affirm the judgment.
Counts 1 and 6, § 288, subdivision (b)(1); count 2, § 288.7, subdivision (a); counts 3 and 4, § 288.7, subdivision (b); and count 5, § 288.5.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
Defendant was born in 1976. M., his niece by marriage, was born in 1995. B., another niece by marriage, was born in 1999.
When B. was in the second grade, while visiting defendant and his wife, Sonia, B. slept in the same bed with them. On that occasion, defendant touched and licked B.’s genitals, over and under her clothing. Another time, in the family RV, defendant unzipped her pants, put his finger in her underwear, and, while kneeling, licked her genitals. He also tried to kiss her, putting his tongue in her mouth. He unzipped his pants and forced her to touch his penis. A third time, after B. had showered, defendant picked her up, placed her on the bed on her back, opened her legs, and licked her genitals. On a fourth occasion, when she was watching television and got up for a drink of water, defendant turned off the television, pulled down her pants, and committed anal intercourse.
It is not always clear from B.’s statements whether the touching included the vagina, an internal organ, rather than the external genitalia.
Defendant molested B. every time she visited. He warned her not to tell anyone else or he would go to jail or hurt a family member.
On December 30, 2008, Sonia and M. watched a horror movie. Because M. became frightened, Sonia suggested M. sleep in the same bed with her, defendant, and their three-year-old child, N. At first M. was lying between Sonia and N., with N. next to defendant. Defendant started rubbing his feet against M.’s feet. When M. objected, Sonia dismissed her concern saying, “Oh, he probably thinks it’s me because he does that to me.” Because defendant complained that N. was kicking him, Sonia moved her so that M. was next to defendant. Defendant continued rubbing M.’s legs and M. could not rouse Sonia. Although M. resisted, defendant forced her to touch his erect penis. When M. turned over on her stomach, defendant grabbed her by the hips and put his fingers on her lips. The family cat jumped on the bed and M. seized the opportunity to scream. M. told Sonia she was having a nightmare and Sonia let her leave the bedroom. M. watched television in the living room until defendant left for the day.
In January 2009, M. burst into tears and told her mother what had happened. B.’s mother asked her if anything similar had occurred. B. started crying and said, “Yes, all the time.” The parents called the police.
Defendant told a police sergeant that he slept in the same bed with M. but he had never molested the girls. He also told the sergeant that the girls did not lie and had no reason to lie about their relationship with him.
B. Defense Evidence
Sonia, her two sisters, and her mother, all testified defendant was never alone with B.
Sonia testified that the family shared a bed when M. was frightened by the movie but M. was never next to defendant. N. was always between them. When M. complained about the foot rubbing, defendant’s feet were not close to M. Other family members said M. did not behave unusually the next day. M.’s grandmother also wrote a letter to M., explaining her brother had molested the grandmother as a child but she had forgiven her brother.
III
INEFFECTIVE ASSISTANCE OF COUNSEL “IAC”
Defendant argues that his trial counsel provided IAC in violation of defendant’s Sixth Amendment, Fourteenth Amendment, and state constitutional rights to counsel: “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
A. Cross-examination of Victims
Defendant first complains that his trial counsel did not conduct an adequate cross-examination of the two victims, based on purported inconsistencies between their trial testimony and previous statements they made to an investigator. The courts are generally reluctant to second-guess tactical choices: “Although in extreme circumstances cross-examination may be deemed incompetent [citation], normally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make. (People v. Williams, supra, [16 Cal.4th] at pp. 216-217.)” (People v. Cleveland (2004) 32 Cal.4th 704, 746.)
Both girls were interviewed by a forensic social worker and a member of the Riverside County Child Assessment Team (RCAT). The jury heard the recorded interviews and received the transcripts. After comparing the RCAT interviews with the victims’ trial testimony, we discern no convincing material contradictions, such as whether M. remembered that defendant was snoring or the exact time he forced her to touch his penis and whether B. was wearing underwear or a bathing suit during one of the molestations. In all the important details, the girls were consistent, providing a legitimate tactical reason not to call attention to their RCAT interviews. Defense counsel quite reasonably chose not to cross-examine the two girls about the minute detail pertaining to their molestations. (People v. King (2010) 183 Cal.App.4th 1281, 1304.)
Additionally, the proposed cross-examinations would have contradicted the defense’s trial strategy. The defense was that the molestations did not happen because defendant was never alone with the girls and, further, that their incriminating RCAT statements were elicited by suggestive questioning. In seeking to divert the jury to alternative theories, it would have been counterproductive to focus more attention on the girls’ testimony during cross-examination.
Lastly on this issue, we recognize the jurors could evaluate any inconsistencies themselves. The fact that defendant was ultimately convicted does not mean his defense counsel was incompetent or ineffective. (People v. Hartridge (1955) 134 Cal.App.2d 659, 667; People v. Frye (1998) 18 Cal.4th 894, 982.) Given the overwhelming amount and nature of the evidence against defendant, “[h]e cannot establish that counsel’s purportedly deficient performance resulted in prejudice to him to the extent that it undermined the proper functioning of the adversarial process, such that the proceeding cannot be relied upon to have produced a just result.” (People v. King, supra, 83 Cal.App.4th at pp. 1310-1311.)
B. Medical Records
B. was medically examined and the results were negative for genital or anal abuse. Defense counsel sought to have his psychiatric expert, Dr. Taylor Cantrell, be permitted to testify about the report prepared for B. The prosecutor objected, arguing defendant should have subpoenaed the doctor who authored the report. After the trial court postponed ruling, the matter was never raised again. In closing argument, defense counsel argued the jury should consider there were no medical reports corroborating the girls’ charges. Defendant now protests defense counsel’s failure “to investigate the existence of medical records regarding examinations of [M. and B.], and the failure to subpoena the examining physician who prepared the writing regarding [B.].”
Defendant cannot have it both ways, arguing that the absence of medical reports favors him on one hand but it was also prejudicial not to have them produced at trial on the other hand. Furthermore, defendant made no offer of proof that further investigation was warranted. Defendant fails to show a competent attorney would have done more: “Counsel is only required to make a reasonable investigation; reasonableness depends upon the totality of the circumstances, and great deference is given to counsel’s judgment. (In re Cudjo (1999) 20 Cal.4th 673, 692.)” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1093.) Accordingly, defendant did not establish deficient performance and, “because he failed to plead or prove that counsel would have discovered useful information, ” he also failed to establish prejudice. (Ibid.; People v. Wrest (1992) 3 Cal.4th 1088, 1116.)
C. The Letter
On appeal, defendant also objects to the admission of the letter written to M. by her grandmother, which she read aloud to the jury at the prosecution’s request. Defendant complains vociferously—but without authority—that the letter was not admissible and there could be no tactical reason for not objecting to its introduction.
What defendant does not address is that the purpose of the letter was to illustrate the grandmother’s potential bias. (Evid. Code, § 780, subd. (f); People v. Carpenter (1999) 21 Cal.4th 1016, 1053-1054.) Particularly, although the grandmother admits that she too was molested by a family member, the letter speaks of the importance of forgiveness and of family relationships. It suggests the grandmother might testify in favor of defendant in order to preserve the family. As such, the letter was relevant and admissible and an objection would have lacked merit. (People v. Jones (1978) 17 Cal.4th 279, 309.)
We also note that defense counsel used the letter in closing argument to argue the family had a history of child molestation which might cause the women to be more protective of the girls, inhibiting defendant’s access to them. Under these circumstances, IAC was not established.
D. Character Witnesses
Defendant generally proposes that defense counsel should have presented character witnesses, other than Dr. Cantrell and M.’s grandmother. Defendant does not identify any such witnesses, their likely testimony, or a reasonable probability that the testimony of character witnesses would have caused a more favorable verdict. (Saunders v. United States (8th Cir. 2001) 236 F.3d 950, 952-953.) Defendant’s speculation does not support a claim of ineffective assistance. (People v. Quinn (2001) 86 Cal.App.4th 1290, 1295, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
IV
DEFENSE EXPERT
Defendant next asserts the trial court abused its discretion by excluding the character evidence of Dr. Cantrell, the defense expert: “A defendant may introduce opinion evidence of his or her character to show a nondisposition to commit an offense. (Evid. Code, § 1102, subd. (a); People v. Stoll (1989) 49 Cal.3d 1136, 1153 [defendant charged with sex offense may present expert opinion evidence of ‘lack of deviance’].) All expert opinion testimony, however, is subject to the requirement that it be ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).) A trial court’s decision as to whether a particular subject is a proper one for expert opinion is reviewed for abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 766; People v. Cole (1956) 47 Cal.2d 99, 103-105; People v. Manriquez (1999) 72 Cal.App.4th 1486, 1492.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1118, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
It is not disputed by the People that defendant could offer character evidence, including a psychologist’s opinion based on standardized tests. In Stoll, a case involving four defendants, a psychologist tested defendant Grafton, using the Minnesota Multiphasic Personality Inventory (MMPI) and the Millon Clinical Multiaxial Inventory (MCMI), and concluded she had a normal personality function and was not sexually deviant. (People v. Stoll, supra, 49 Cal.3d at pp. 1147-1150.) The California Supreme Court held it was prejudicial to exclude the psychologist’s testimony and reversed the convictions of Grafton and Palomo. (Id. at pp. 1162-1163.) Part of the court’s rationale for its holding was its assessment of the weakness of the case against these two defendants. (Ibid.)
Three of the four defendants—John Stoll, Margie Grafton, and Timothy Palomo—had their convictions reversed.
Subsequently, in People v. Ruiz (1990) 222 Cal.App.3d 1241, 1245, the court said “it is not enough to determine that certain material—here, profile evidence—might be admissible. Evidence Code section 801, subdivision (b) requires that the matter underlying an expert’s opinion be ‘of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ Thus there must be some showing that the material on which the expert bases his or her opinion—here the profiles of the primary types of pedophile—is reliable.” Thus, the trial court may properly require an adequate foundation for the expert’s opinion. (People v. Hamilton (2009) 45 Cal.4th 863, 912.)
Here Dr. Cantrell relied upon four diagnostic tools: a mental status examination, evaluating a subject’s state of mind; the Hare test, evaluating psychopathy; the Sex Offender’s Risk Assessment Guide (SORAG), and the Sonar 2000 interview guidelines for sexual predators. He did not administer the MMPI. He did not review the police report or the RCAT interviews. He interviewed defendant and his wife for about two hours.
Dr. Cantrell opined that defendant’s “personality and character did not match with the personality and character of known convicted sex offenders.” But he also admitted that, none of the tests he used had a direct bearing on the issue of whether defendant was a pedophile, or “the ‘type of person’ to commit the charged acts.” (People v. Stoll, supra, 49 Cal.3d at pp. 1162-1163.) He acknowledged that “the largest number of convicted sex offenders tend to not have a specific mental illness” and the Hare and SORAG tests were principally designed to assess the risk of reoffending. The SORAG test did not “evaluate character and personality, with respect to the probability of an individual’s involvement in the sex offense.”
The trial court determined that, because the Hare test evaluated psychopathy and the SORAG test measured the potential for recidivism, the proffered evidence was not relevant. The mental status test, based on Dr. Cantrell’s interviews with defendant and his wife, did not give him the authority to testify he did not believe defendant was not guilty. For these reasons, we agree the trial court did not abuse its discretion in refusing to admit Dr. Cantrell’s testimony. (People v. Pollock (2004) 32 Cal.4th 1153, 1172.) Additionally, the strength of the case against defendant again means it is not reasonably probable that Dr. Cantrell’s testimony would have changed the jury’s verdicts. In the absence of prejudice, defendant’s related IAC claim based on this issue also fails.
V
NEW TRIAL MOTION
Defendant’s final issue on appeal involves his attempt to file a new trial motion.
The jury reached a verdict on January 12, 2010. The sentencing hearing began on February 9, 2010. On that day, Gary Wenkle Smith, defendant’s appellate counsel, appeared and asked to be substituted as defendant’s attorney of record in place of defendant’s trial attorney. Smith also filed a notice of intention to move for new trial and asking for a continuance to April 2010 to allow him to read the trial transcripts. The proposed grounds for the motion were “the denial of the introduction of the testimony of the defense expert, as well as the ineffective cross-examination of the alleged victims....”
The court commented that the sentencing was scheduled to go forward that day and that the prosecution and witnesses were ready to proceed. The court conducted the hearing and pronounced judgment.
Defendant argues it was error for the court to stymie defendant’s effort to file a motion for new trial, citing People v. Braxton (2004) 34 Cal.4th 798. In Braxton, defense counsel tried to make an oral motion for new trial based on juror misconduct and supported by three signed declarations. (Id. at p. 806.) The California Supreme Court held: “A trial court’s refusal to hear a new trial motion does not result in a miscarriage of justice if the appellate record allows the reviewing court to determine, as a matter of law, that the new trial motion lacked merit or that the trial court would properly have exercised its discretion to deny the motion. In these cases, the reviewing court should affirm the judgment of conviction. On the other hand, if the appellate record does not permit the reviewing court to make this determination, then the reviewing court normally should remand the matter to the trial court for a belated hearing on the defendant’s new trial motion.” (Id. at p. 820.)
First, we note the trial court did not abuse its discretion in declining to allow defendant a continuance to file a new trial motion until after defendant’s new appellate counsel could read the trial transcripts. (People v. Beeler (1995) 9 Cal.4th 953, 1003-1004.) Defense counsel had four weeks to prepare and was seeking at least two more months. The courts have deemed five weeks to be adequate time to prepare a new trial motion. (People v. Alexander (2010) 49 Cal.4th 846, 933-935.) We find there was adequate time to file the motion in this case.
Second, following Braxton, we find no miscarriage of justice because, based on the record and for the reasons already discussed in our opinion, we determine that any new trial motion, as proposed, lacked merit and the trial court would properly have exercised its discretion to deny the motion.
VI
DISPOSITION
In the absence of prejudicial error, there is no cumulative error. (People v. Cook (2006) 39 Cal.4th 566, 608.)
We affirm the judgment.
We concur: Ramirez P.J., Hollenhorst J.