Opinion
G053667
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN FLORES GARCIA, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF2649) OPINION Appeal from a judgment of the Superior Court of Orange County, Nicholas S. Thompson, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Jonathan Flores Garcia was charged in an information with four counts of lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a); counts one through four) and one count of giving a minor an alcoholic beverage (Bus. & Prof. Code, § 25658, subd. (a); count five), a misdemeanor. Each felony count alleged a specific act as the basis for the charged offense: kissing (count one), touching breast (count two), touching vaginal area (count three), and hand to penis (count four). The jury found defendant guilty on count one for kissing the victim, acquitted him of the remaining felony charges, and convicted him of the misdemeanor. The trial court granted defendant probation and ordered him confined in the county jail for 364 days. Defendant contends the judgment must be overturned because his counsel was ineffective. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
I
FACTS
W.Z.'s Father
On September 2015, W.Z.'s father was looking for his five daughters because they had not been answering their phones. He was mainly concerned about his 16- or 17-year-old daughter, J.Z., who was seeing Eric B. at the time. Although her father had problems with J.Z. and Eric (who was over 18 years old) before, he had not had any problems with the victim in this case, his 13-year-old daughter W.Z. Finally, one of the daughters returned a call and said where they could be found. W.Z.'s father told his wife to call the police.
W.Z's father and mother went to the address, looking for their daughters. He was enraged because he thought Eric was in the garage with one of his daughters. As he approached the residence, W.Z.'s father saw defendant and W.Z. run towards the side gate leading to the garage. When he got there, he knocked on the door to the garage and W.Z. came out of the garage. Defendant was inside the garage. W.Z.'s father smelled beer and saw beer cans. He told a police officer he smelled beer on W.Z.'s breath.
W.Z's father testified he did not see W.Z. and defendant kissing. He did not see "anything bad" happen between W.Z. and defendant. He said he was so "very mad" that he lied to the police when he said he saw defendant and W.Z. kiss, and defendant touch her breast. Still, he told police defendant was not the guilty one and that Eric is "the guilty one."
In November of 2015, W.Z.'s father told the public defender's investigator he regretted having lied to the police about seeing defendant and W.Z. kissing. He said his complaint is with Eric, not defendant. He also told the district attorney and her investigator about having lied to the police.
Defendant's Cousin
Defendant's cousin owns the residence where defendant and W.Z. were in the garage. She rented space in the house to defendant. He lived inside, "but when he would go out, he would stay in the garage." She said defendant took Eric in because Eric had no place to live, so Eric stayed in the garage sometimes. On the day of the incident, she saw J.Z. and W.Z. outside her residence and did not want them there because "they would go there looking for Eric." Consequently, she went looking for W.Z. and J.Z.'s parents. She said she asked W.Z.'s parents "to go and tell their daughters" she did not want them around her house. The girls' parents got upset and called the police. W.Z.'s father was the "most upset."
Defendant's cousin said W.Z.'s father could not see anything in the garage. She did not see any physical contact between defendant and W.Z. She said defendant did not have a relationship with W.Z., because he had a girlfriend. She said she later saw defendant in the garage, "asleep and drunk."
The day after the incident, W.Z.'s father told defendant's cousin that he was sorry for having defendant arrested. He said he was not after defendant, he wanted Eric arrested. W.Z.'s Mother
W.Z.'s mother said defendant's cousin came to their family residence on September 27, 2015, and asked for the parents of J.Z. and W.Z. The woman said the girls were at her house. W.Z.'s mother and father went to the woman's house. W.Z.'s father arrived first and knocked on the open door to the garage. He told his wife he saw W.Z. and defendant kissing. She said her husband said that because he was upset. She did not see contact between defendant and W.Z. W.Z.
W.Z. was granted immunity to testify. As she understood it, immunity would protect her from getting into trouble if she had lied to police. She testified she and her sisters were in the front of defendant's residence, but not in the garage. She never told defendant she was 13 years old. She told him she was 14 years old, and he told her to tell the police she was 19 years old, if the police ever contacted her.
Earlier that day, W.Z. had been to the park with defendant and her sisters, where she drank some beer with defendant. She said she got the beer from him, but she also said she took the beer from a bag, no one saw her take it, and that defendant did not open it for her. W.Z. believes she told a police officer defendant opened the beer for her. The beer made her feel dizzy. A subsequent breath test revealed she had a 0.058 blood-alcohol level.
W.Z. said defendant never kissed her, touched her breasts, or touched her vaginal area. Neither did defendant attempt to touch her vagina or put his hands down her pants. She said she never touched his penis over his clothes and he never grabbed her hand and pulled it toward his penis. She denied being "friends with benefits" with defendant. She said she was not in a relationship with defendant, but her sister J.Z. dated Eric.
W.Z. said she was frightened when questioned by the police, she thought she was in trouble, and told them what she thought they wanted to hear. She lied and told the police she had contact with defendant. She did so because she did not want to get into trouble. W.Z. was subsequently examined by a nurse. She said she was not truthful with the nurse when she told the nurse she was on defendant's bed.
Other Evidence
Fullerton Police Officer Eric Bridges responded to a single family residence, where he contacted W.Z.'s father. Bridges recorded his conversation with him. A recording of the interview was played for the jury. In the recording, W.Z.'s father said W.Z. was kissing "the guy," and "[h]e kiss[ed] a little." He said there was "[a]nother guy" with "the same problem," i.e., molesting J.Z.
Bridges described W.Z.'s father as being "very frantic," but he never yelled at defendant. There was, however, an argument between W.Z.'s father and one of her sisters.
Bridges also interviewed W.Z. When asked why her father was upset, W.Z. said it was because she was with defendant. W.Z. initially said she and defendant were "'just right there, sitting down,'" talking. Bridges asked W.Z. if she kissed defendant. She said she kissed him about six times. She denied either of their clothes came off or that defendant felt her "'body at all.'"
Bridges lied to W.Z., stating defendant had been "'pretty truthful about what happened'" and that it surprised him. As a result of that lie, and telling W.Z. she was not being truthful, W.Z. stopped denying anything happened. She said they kissed. Bridges said it was more than kissing and that she was not being honest with him. W.Z. then said defendant touched her breast on the outside of her clothing. When Bridges asked if defendant touched her pelvic region, W.Z. said, "Kinda." And when Bridges asked if her vagina was also touched, W.Z. said, "yeah." Bridges also spoke with defendant, who denied "everything."
Bridges collected DNA swabs from W.Z. and defendant. He does not recall if he wore gloves while taking the swabs.
The next day, Officer Cynthia Hines went to W.Z.'s house. She spoke with W.Z.'s father and recorded the conversation. During that interview, he said he saw defendant touch W.Z. He said he told Bridges he saw them kissing, but did not tell him about defendant touching W.Z. He said he saw defendant touch W.Z.'s breast over her clothing. He added that he thought W.Z. was high.
Hines also spoke with W.Z. that day. W.Z. said defendant touched her left breast. In addition, she said he touched her pelvic area and her "left butt cheek."
That same day, Hines picked up samples from W.Z.'s medical examination. Shawna Morain, a forensic nurse conducted the examination. She took a swab of various areas of W.Z.'s body, including her mouth. Hines asked W.Z., "'Where did this happen?'" W.Z. said it happened in defendant's bed and that he tried to touch her.
A forensic scientist from the Orange County Sheriff's Department tested the swabs taken in this matter. A swab taken from defendant's neck contained DNA and was tested against a swab taken from W.Z.'s blood and a known sample of defendant's DNA. The swab taken from defendant's neck contained a mixture of DNA from two people. The DNA on the sample belonged to defendant and a female, W.Z. The odds of finding another, unrelated female with the same DNA as W.Z.'s was more than one in one trillion. The swab from defendant's neck not only contained W.Z.'s DNA, it also contained alleles, which are present in saliva.
The scientist said the crime lab's controls would pick up any errors of cross-contamination. He admitted saliva could be transferred from one person talking to another person standing close by, in as little as 30 seconds.
A defense expert, Susana Ryan, is a forensic DNA consultant. She reviewed reports in this matter, as well as the lab's bench notes, and saw that one analyst at the crime lab conducted the body fluid testing and another did the DNA testing. She was concerned about the fact that the same officer who took samples from W.Z. also took samples from defendant. She said that presents the possibility of cross-contamination, especially if gloves are not changed very frequently. She said the person collecting swabs should wear gloves and change them after each sample is collected. She was further concerned by the handling of the DNA samples in the crime lab, where W.Z.'s samples were tested directly prior to testing samples obtained from defendant, again raising the possibility of cross-contamination.
II
DISCUSSION
The Sixth Amendment guarantees a criminal defendant the assistance of counsel. (U.S. Const., 6th Amend.) The right to counsel is not met by merely having a licensed attorney sit next to a defendant during trial. (Strickland v. Washington (1984) 466 U.S. 668, 685.) Rather, the Sixth Amendment requires the assistance of an attorney "who plays the role necessary to ensure that the trial is fair." (Ibid.) Thus, a defendant is entitled to "'the effective assistance of counsel.'" (Id. at p. 686, quoting McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14.)
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, supra, 466 U.S. at p. 686.) In order to prevail on a claim of ineffective assistance of counsel, a defendant must make a two-fold showing. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Id. at p. 687.) In order to obtain a reversal of the conviction, the defendant must demonstrate a reasonable likelihood the result would have been better but for counsel's shortcomings. (Id. at p. 693.) A. Failure to Have Psychologist Testify
Defendant first contends counsel was ineffective for failing to introduce the testimony of the psychologist who prepared a psychological report stating defendant did not appear to be "a sexual predator." This initial argument is based on the fact that the psychologist prepared a report for sentencing and concluded defendant was not a predator, a decision with which the trial court apparently accepted when it granted defendant probation (§ 288.1). Defense counsel included the psychologist on his witness list, but did not call her to testify.
"Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person." (§ 288.1.)
In People v. Stoll (1989) 49 Cal.3d 1136, 1141, one female and three male defendants were charged in 36 counts with molesting seven young, prepubescent boys. Defendants Grafton and Palomo were involved romantically and lived together. They socialized with defendant Stoll and his girlfriend, a nondefendant. The fourth defendant, Self, rented a small house in Stoll's backyard. (Ibid.)
One of the boys was six years old, another was seven, and two were eight years old at the time of trial. (People v. Stoll, supra, 49 Cal.3d at p. 1142-1143.) --------
Stoll was found guilty on 17 of the counts. He acted alone in those matters. (People v. Stoll, supra, 49 Cal.3d at p. 1142.) Self was found guilty on 10 counts. He acted alone on most of those counts. (Ibid.) Palomo was convicted of four counts, only one of which did not involve Grafton. (Id. at p. 1143.) Grafton was convicted on five counts, only one of which did she purportedly acted alone. Five boys testified against Grafton, including her two sons from her estranged husband, and Stoll's son from a prior marriage. (Id. at p. 1142.)
All four defendants were convicted of three counts involving three boys at a group event. (People v. Stoll, supra, 49 Cal.3d at p. 1143.) Four boys testified to the event. All agreed they were at Stoll's house and naked, as were the defendants. They disagreed as to which three children were present. Three said photographs were taken while they were engaged in sexual activity, or were naked. (Ibid.) In the initial interview with one of the boys, he denied Grafton had anything to do with nude picture taking. Another gave "'evasive'" answers "about Grafton's participation in nude photography or sexual activity." (Id. at p. 1145.)
Grafton testified in her defense. She showed a large scar on her body. It predated the charged crimes and two of the boys had testified she did not have the scar. (People v. Stoll, supra, 49 Cal.3d at p. 1146.) She also testified to having been at the same dart trophy banquet attended by one of the boy's mother, on the date the boy said he had been molested while his mother was at the banquet. (Id. at pp. 1144-1146.) The boy's mother corroborated Grafton's alibi. (Id. at p. 1146.) However, the mother stated there were other occasions when Grafton and Stoll babysat her son. (Ibid.)
Grafton offered the testimony a doctor who would give an expert opinion, based on professional experience, the administration of psychological tests, and interviews with Grafton, as to "whether Grafton possesses any 'pathology' in the nature of 'sexual deviation.'" (People v. Stoll, supra, 49 Cal.3d at p. 1146.) He would have opined that Grafton "has '[not] engaged in the past in sexual deviancy of any kind . . . [and] shows no indications of deviancy in any other personality function. . . .'" (Id. at p. 1149, italics omitted.) In the doctor's opinion, it was "'unlikely'" Grafton had been engaged in any of the charged activity. (Ibid.) This evidence was offered on one trait alone: "lack of sexual deviance." (Id. at p. 1152.) The trial court, however, did not allow the doctor to testify, having concluded the defense had not carried its burden of proof under People v. Kelly (1976) 17 Cal.3d 24, 30, showing required for expert testimony of new scientific technique. (People v. Stoll, supra, 49 Cal.3d at pp. 1150-1151.) The California Supreme Court held People v. Kelly, supra, 17 Cal.3d 24, did not apply to the proffered testimony and the trial court prejudicially erred in excluding the evidence. (People v. Stoll, supra, 49 Cal.3d at pp. 1153-1154, 1161.)
"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. Because 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.] 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.]" (Strickland v. Washington, supra, 466 U.S. at pp. 689-690.)
Because we indulge in the strong presumption that counsel's conduct was reasonable, "[o]n direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Initially, we recognize that trial counsel was not asked why he did not introduce the testimony of the psychologist who prepared the section 288.1 report to testify that defendant is not a sexual predator. That being said, the record fails to demonstrate counsel had no tactical reason for not introducing the testimony of the psychologist, or that there could be no satisfactory explanation. Moreover, having read the sealed section 288.1 report, we can understand how counsel could tactically decide to forego having the psychologist testify.
Defendant's argument also fails to demonstrate prejudice. We cannot conclude there is a reasonable likelihood the result would have been better, but for counsel's alleged shortcoming. (See Strickland v. Washington, supra, 466 U.S. at p. 693.) Defendant prevailed on three of the four felony charges. Unlike the charges upon which the jury acquitted defendant, the felony count he was convicted of was supported by DNA evidence. W.Z.'s DNA was on defendant's neck and the DNA may have contained her saliva. Indeed, it appears the area of defendant's neck from which a swab was taken was not the result of happenstance. It was apparently decided to swab that particular area of defendant's neck because he had a "hickey" there. If W.Z. gave defendant a hickey on his neck, one would anticipate her DNA to be found there. And it was. Not only was her DNA present, the DNA contained alleles, which are found in high concentrations in saliva. B. Failure to Argue the Lab Manager did not Personally Conduct the DNA Testing
Prior to the introduction of evidence, the prosecutor moved to admit evidence of the DNA test results via the testimony of a case manager or technical reviewer who may not have personally conducted the testing, but who would testify to opine whether the DNA matched a particular individual. The prosecutor argued such testimony would not violate defendant's Sixth Amendment right of confrontation, citing decisions by the United States Supreme Court as well as the California Supreme Court. Defense counsel did not object.
Defendant does not argue the prosecution's DNA expert could not testify unless she personally performed the testing on the DNA samples. Rather, he argues counsel should have attacked the prosecution's expert on her not having performed the tests on the DNA samples, because subsequently, when the defense DNA expert testified, the prosecutor attacked her on her not having performed the tests on the DNA. According to defendant, "[e]ffective counsel would have anticipated the prosecutor's line of attack and correspondingly would have confronted the prosecutor's lab manager's lack of personal knowledge."
Counsel was not ineffective. On his cross-examination of the prosecution's DNA expert, the witness stated she did not perform the DNA extraction from the collected samples. That fact, taken together with the witness's admission of how the DNA samples got to her (i.e., not contaminated) was important, and defense counsel's argument to the jury made the points the defense sought to make. C. Failure to Argue Defendant's DNA was not Found on W.Z.
Lastly, defendant argues counsel was ineffective for failing to argue there was no evidence demonstrating defendant's DNA was found on W.Z. Again, counsel was not ineffective. The jury was well aware there was no evidence of defendant's DNA on W.Z. In fact, the jury asked if that fact alone could supply reasonable doubt to acquit defendant. Thus, even if counsel did not argue the lack of defendant's DNA on W.Z., the jury was aware of the fact and considered it.
III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.