Opinion
H031267
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. CEASAR MELANO GARCIA, Defendant and Appellant
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Ceasar Melano Garcia was convicted after jury trial of child abduction (Pen. Code, § 278) for taking J.P., the five-year-old daughter of R.G., a woman with whom he was acquainted. The trial court sentenced defendant to three years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the evidence was insufficient to support the conviction, he received ineffective assistance of counsel, and the cumulative effect of the errors resulted in a fundamentally unfair trial that requires reversal. For reasons that we will explain, we disagree and affirm the judgment.
II. BACKGROUND
Factual Background
R.G. lived in an apartment with her five-year-old daughter, J.P. R.G. worked as a caretaker for an elderly woman everyday from 8:00 a.m. to 12 noon, except Tuesdays and Thursdays when she worked until 2:00 p.m. On certain days, R.G. also took two English classes at an adult school from 12:30 to 1:30 p.m., and 1:30 to 4:00 p.m. R.G. brought J.P. to work, and when R.G. was in class, J.P. stayed in day care provided by the school.
R.G. and defendant had known each other since approximately January 2006, and defendant was familiar with R.G.s work and school schedule. Both were enrolled in the same English classes. They socialized outside of school with people from the class, and took photographs together or with other classmates. In one of the photos, defendant held J.P. Defendant brought medicine to R.G. once when she was sick, helped her move into her apartment, and took her to church on one occasion. Defendant and a friend also came over to R.G.s apartment when J.P. was there.
Several months prior to May 2006, R.G. and defendant participated in a carwash to raise funds for the school. Also present at the carwash were J.P. and defendants five-year-old niece. The children were playing together but eventually became bored. Defendant asked R.G.s permission to take J.P. to his apartment. Defendant lived with his mother and niece approximately one mile from R.G.s apartment. Defendant slept in the living room, and his mother and niece each had their own bedroom. R.G. allowed J.P. to go to defendants apartment because his "mother was there, as well as his niece." The children played at the apartment for 15 to 30 minutes before returning to the carwash. This was the only time R.G. let defendant take J.P. anywhere.
After the day of the carwash, defendant and his friend would arrive at R.G.s apartment and wait for her to come home "[s]ometimes three times per week." Defendant also called her often, "sometimes[] three or four times a day." R.G. became aware that defendant had "stronger feelings" for her, although he never made any romantic advances. She was not romantically interested in him. At times, R.G. did not go home because defendant and his friend were waiting for her, and there were times when she would not answer his call.
Eventually R.G. became uncomfortable with her friendship with defendant. In or about April 2006, as R.G. was leaving school, she lied to defendant about when she was going home. R.G. had other things to do and wanted to avoid him. Defendant, who apparently waited for R.G. to come home, caught her lying. Later that day, R.G. went to the parking lot of defendants apartment and told him that she "did not like his conduct," indicating their friendship was over. Although R.G. did not tell defendant not to call or contact her, she intended to convey to him "that he was not going to call [her], and that he was not going to see [her]." R.G. was "very upset" with defendant.
Defendants best friend, Alex, was also present in the parking lot. Alex told defendant and R.G. not to "get mad at each other" and took photographs of defendant and R.G. standing "back-to-back" and of them hugging. R.G. was angry and the pictures were taken only because of Alex.
After this incident, R.G. stopped calling defendant. Defendant still called her, although less often, and she "would not respond" to his calls. They saw each other at school, but did not speak to each other.
On May 15, 2006, at approximately 12 noon, R.G. and J.P. returned to the apartment after R.G. finished work. They had breakfast and R.G. got ready for class. In the meantime, she allowed J.P. to go outside to ride her bicycle in the parking lot of the apartment complex. R.G.s apartment complex had three units, and she lived upstairs. The parking lot downstairs was fenced in, except for the entrance. The complex was located in a "peaceful" neighborhood and a lot of children lived in the area. R.G. felt safe allowing J.P. to play outside.
R.G.s front door was open and J.P. came back into the apartment. She told R.G., "your friend, el Gordo" passed by. R.G. did not know who J.P. was referring to, so she went outside. She saw defendants car at a stop sign down the street. After the car left, she went into the bathroom and J.P. "went back down to her bicycle."
R.G. was inside for approximately five minutes, before closing the door and going downstairs to get J.P. so that they could go to school. Once downstairs, R.G. saw J.P.s bicycle, but not J.P. R.G. looked throughout the yard and behind the apartments. She then knocked on the door of her neighbor and on the window of the neighbor downstairs. She also went to the apartment complex next to hers. R.G.s neighbors and others joined in the search. R.G. was crying and angry. She drove to a nearby park to look for J.P. while a neighbor stayed at her apartment. At the park, R.G. asked people whether they had seen her daughter. She also looked for J.P. in the play structures at the park. Between the time R.G. first noticed J.P. missing and the time she was searching at the park, approximately 10 minutes had passed.
Unable to find her daughter, R.G. called 911 on her cellular phone. While she was making the call to the police, she received a call from defendant on the other line. R.G. told defendant that J.P. was lost and that she was calling the police. Before defendant could tell her anything, she hung up. She got another call from him, but she did not answer it because "it was urgent for [her] to speak with the police." After R.G. ended her call to 911, she returned to her apartment.
Salinas Police Officer Wayne Vance was dispatched to R.G.s apartment at approximately 12:14 p.m. Officer Vances "beat" included the area where R.G.s apartment was located. He had seen J.P. playing outside in the past, but only in the carport or grass area of the apartment complex. When Officer Vance saw R.G. after being dispatched to her apartment, she was "extremely upset and crying."
While Officer Vance was with R.G., Salinas Police Sergeant Andrew Miller drove around R.G.s apartment to "do an area check for the child." He saw defendant and J.P. walking on the sidewalk and pulled his vehicle in front of them. He asked J.P. her name and whether she was "okay." J.P. said she was, and defendant "indicated they were going back to the house." Sergeant Miller moved his vehicle out of the way so they could continue walking, and he followed them in his vehicle to R.G.s apartment. Sergeant Miller radioed to the dispatcher at approximately 12:21 p.m. that he found J.P.
It did not occur to R.G. that defendant may have taken J.P. R.G. had not given defendant permission to take her.
After defendant and J.P. arrived at the apartment complex, Officer Vance spoke with defendant downstairs from R.G.s apartment, while another officer spoke with J.P. and her mother. Officer Vance did not have trouble communicating with defendant in English. Officer Vance obtained identification from defendant, which indicated defendant was 31 years old. Initially, defendant said he was "going by" and J.P. approached him and asked to go for a walk. He indicated that she was outside the fenced area of the apartment complex by a stop sign. He then described the route they walked, including the street names and which directions they turned on the streets. Defendant acknowledged he did not have permission to take J.P for a walk.
Officer Vance then spoke with the officer who had talked to J.P. J.P. had stated that they rode in defendants car and went to his residence. When subsequently confronted by Officer Vance, defendant admitted he had lied. He indicated he was afraid of the police knowing he was driving because he had a "license problem" and his car might be impounded. He acknowledged driving J.P. to his residence and admitted putting on a "mermaid" video for her to watch. He indicated that his mother was cooking in the kitchen during the entire time J.P. was at the apartment. He also made it seem as though he and R.G. were close friends. He stated that "he was a friend of the familys," that he had photos of R.G., and that J.P. "was previously at his home." However, he did not mention a "falling out" with R.G., that he videotaped J.P., or that he and J.P. watched a movie in the bedroom.
Officer Vance learned from J.P. that defendant videotaped her while she was at his apartment. In the videotape, J.P. is drinking juice and smiling while sitting on the bottom part of a bunk bed in the bedroom of defendants niece. She is also asked to go out to the living room, where she sits on the couch. About this time, the tape ends. At one point during the video, defendant asks J.P. if she wants to call her mom, and she says that she does not know the phone number. The video is approximately one minute and 34 seconds.
Defendants mother was not present when defendant brought J.P. to the apartment that day. She left for work that morning at 3:30 a.m., and when she returned home at 12:45 p.m., no one was at the apartment. Defendants niece is in school from 8:00 a.m. to 3:00 p.m., Monday through Friday. Defendant takes his niece to school in the morning, and his mother picks her up.
The parties entered into the following stipulation, which was read to the jury: "[J.P.] . . . if called to testify would state the following: [J.P.] is aware of the difference between right and wrong and knows the difference between the truth and a lie. On May 15, 2006, [J.P.] was playing with her bicycle outside her residence, inside the grounds of the apartment complex. She observed Ceasar Garcia, whom she knows as Gordo, drive by in a vehicle. She went upstairs and told her mother that Gordo had just driven by. Minutes later, she was approached by Mr. Garcia and asked if she would like to go to his residence. She responded okay. Mr. Garcia told her that his niece would be present at the apartment and that they could watch a mermaid video. Mr. Garcia drove [J.P.] to his apartment. While at the apartment, Mr. Garcia gave her some juice to drink. Both [J.P.] and Mr. Garcia went into his nieces bedroom and watched mermaid video. [J.P.] was sitting on the bottom bunk and Mr. Garcia was on the top bunk while they watched the video. At some point, Mr. Garcia began to videotape the television and then videotape [J.P.]. Mr. Garcia then drove [J.P.] back to the area of her apartment and walked her home."
Procedural Background
Defendant was charged by information with child abduction (§ 278) on June 9, 2006. On June 29, 2006, after defense counsel expressed doubt about defendants competency, the trial court suspended criminal proceedings pursuant to section 1368. Defendant was evaluated and found to be mentally competent. On July 11, 2006, criminal proceedings were reinstated.
An amended information was filed on July 24, 2006, to identify J.P. and to correct her date of birth.
The jury found defendant guilty of child abduction on July 26, 2006. During a sentencing hearing on September 12, 2006, the trial court referred defendant for a diagnostic evaluation pursuant to section 1203.03.
On January 11, 2007, the trial court, after considering recommendations from the section 1203.03 diagnostic evaluation, among other things, proposed a grant of probation. Defendant subsequently brought a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which was denied by the court. Defendant then refused to accept the terms of probation. Upon defense counsels request, the court referred defendant for another mental competency evaluation. Defendant was found competent, and criminal proceedings were reinstated on February 8, 2007.
On February 22, 2007, defendant again refused to accept probation. The court then sentenced defendant to the middle term of three years in state prison, with 426 days credit, and imposed various fines and fees. Defendant filed a notice of appeal that same day.
III. DISCUSSION
On appeal, defendant challenges the sufficiency of the evidence to support the conviction for child abduction. He also contends that his counsel provided ineffective assistance because counsel failed to investigate and present certain "exculpatory" evidence regarding a statement by J.P., failed to present psychiatric evidence to demonstrate the absence of malicious intent, and failed to object to certain statements by the prosecutor during closing argument that constituted prosecutorial misconduct. Lastly, defendant argues that the cumulative effect of the errors resulted in a fundamentally unfair trial that requires reversal. We will address each of these contentions separately.
Sufficiency of the Evidence
Defendant contends the conviction for child abduction should be reversed because there was insufficient evidence that he had the intent to detain or conceal J.P., or that he acted maliciously.
In addressing appellate claims of insufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We "`presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Id. at p. 576; see also People v. Iniguez (1994) 7 Cal.4th 847, 854.) In conducting this review, we give due deference to the trier of fact in assessing the credibility of witnesses, "and [do] not substitute [our] evaluation of a witnesss credibility for that of the fact-finder. [Citations.]" (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] `"Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. `"If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.]" [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Section 278 makes child stealing or child abduction a crime and applies to "[e]very person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian . . . ." (§ 278; People v. Hill (2000) 23 Cal.4th 853, 858.) "[T]he perpetrators intent in a child abduction crime must be to detain or conceal the child from a person who has lawful custody . . . ." (People v. Jones (2003) 108 Cal.App.4th 455, 463.) "The word `detain does not necessarily include the idea of force, but includes delaying, hindering, [or] retarding . . . ." (People v. Moore (1945) 67 Cal.App.2d 789, 791 (Moore) [former § 278].) The requisite intent to detain or conceal may be shown by a defendants conduct, including any words the defendant may have spoken, and by all the circumstances surrounding the commission of the acts. (Moore, supra, 67 Cal.App.2d at p. 792; People v. Craig (1994) 25 Cal.App.4th 1593, 1597; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690-691.)
The word "maliciously" as used in the statute "import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." (§ 7, subd. 4; People v. Simmons (1936) 12 Cal.App.2d 329, 332 [former § 278].)
A defendant may be found guilty of child abduction regardless of the childs willingness to go with the defendant. (Moore, supra, 67 Cal.App.2d at p. 792; § 277, subd. (g).) "`Child stealing has always been considered in California to be a crime against the parent, not the child. It is designed to protect parents against the anxiety and grief which necessarily follow from the taking of their children. [Citations.]" (In re Michele D. (2002) 29 Cal.4th 600, 614, quoting People v. Campos (1982) 131 Cal.App.3d 894, 899.)
In this case, the trial court instructed the jury pursuant to CALJIC Nos. 9.70, 9.72, and 9.73 as follows: "The defendant is accused of having committed the crime of child abduction, a violation of section 278 of the Penal Code. Every person not having a right of custody, who maliciously takes, entices, keeps, withholds or conceals any child with the specific intent to detain or conceal the child from a lawful custodian is guilty of the crime of child abduction in violation of Penal Code Section 278. In order to prove this crime, each of the following elements must be proved. . . . One, a person took, enticed away, kept, withheld, or concealed a child; two, that person did not have a right of custody of the child; three, that person acted maliciously; and four, with a specific intent to detain or conceal the child from a lawful custodian. [¶] As used in the crime of child abduction, `child means a person under the age of 18. `Maliciously means with intent to vex, annoy, or injure another person, or to do a wrongful act. `Keeps or withholds means retains physical possession of a child, whether or not the child resists or objects. To `entice means to allure, to attract, to draw on, or to lead astray by inciting hope or desire. It does not necessarily include any domination over the childs will. `Detained means to delay, to hinder or to retard. It does not necessarily include force or menace. A `right of custody means the right to physical care, custody, and control of a child pursuant to a custody order or operation of law. In the absence of a court order to the contrary, a parent loses his or her right to custody of the child to the other parent if the parent having the right to custody is dead, is unable or refuses to take the custody, or has abandoned his or her family. [¶] The fact that a minor child consented to go or to stay, or decided voluntarily to accompany an adult is not a defense to the crime of unlawfully taking, obtaining, concealing, or enticing away a minor child."
There was substantial evidence to support a finding that defendant acted maliciously in taking, enticing away, keeping, withholding, or concealing J.P., and with an intent to detain or conceal her from R.G. Defendant knew he needed R.G.s permission before taking J.P. to his apartment, as he had previously sought R.G.s permission before taking J.P. from the carwash to his apartment. Defendant also knew his friendship with R.G. had ended, yet he continued to try to call her, and on the day of the incident, drove by her apartment twice during a time when she might be home between work and classes. After seeing J.P. alone, defendant took her when driving by the second time. Given the falling out between defendant and R.G., the fact that defendant repeatedly drove by R.G.s apartment during an opportune time when R.G. and J.P. might be home, the fact that he took J.P. despite knowing R.G.s permission was necessary, and the fact that he knew R.G. would need to leave for class with J.P. soon, the jury could reasonably conclude that in taking J.P., defendant acted with the intent to do a wrongful act and with the intent to detain or conceal her from R.G.
In addition, defendants misrepresentations and omissions of material facts suggest his consciousness of guilt. First, he lied to J.P. when he said his niece would be present at his apartment. Second, he made numerous misstatements to police. He initially lied when he indicated he only took J.P. for a walk. While later acknowledging that he drove J.P. to his apartment, he lied about his mother being present at the apartment and failed to disclose that he had videotaped J.P. in his nieces bedroom. He also told police that he was a family friend and that J.P. had previously been to his apartment, despite knowing that R.G. ended the friendship and that he did not have R.G.s permission to take J.P.
Other evidence also suggested that defendants motivation was to vex or annoy R.G., and that he acted with the intent to detain or conceal J.P. from R.G. Although defendant called R.G. and brought J.P. back in approximately twenty minutes, he did not get R.G.s permission first before taking J.P. Rather, he took J.P. to a private location where they were alone and videotaped her. He also waited a period of time before calling or returning J.P. to her mother.
In sum, there was ample evidence to support a finding that defendant acted with the intent to do a wrongful act and with the intent to detain or conceal J.P.
Ineffective Assistance of Counsel
Before addressing defendants contention that his trial counsel rendered ineffective assistance of counsel, we first set forth the general principles regarding such a claim. "Defendant has the burden of proving ineffective assistance of counsel. (People v. Malone (1988) 47 Cal.3d 1, 33.) To prevail on a claim of ineffective assistance of counsel, a defendant `"must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." (People v. Hart [(1999)] 20 Cal.4th [546] at p. 623.) A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689.) Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. (Id. at p. 690.) 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. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Moreover, prejudice must be affirmatively proved . . . ." (People v. Maury (2003) 30 Cal.4th 342, 389.) "The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) Further, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
With these principles in mind, we turn to defendants contentions in this case.
Failure to Investigate and Present Evidence Regarding J.P.s Statement
Defense counsel was given a video of a police interview of J.P. On the video, J.P. says that she thought her mother was asleep in the apartment and that she told this to defendant. J.P.s statement to defendant that her mother was sleeping was never introduced at trial.
Defendant asserts that his counsel failed to obtain a translation of the video, which was in Spanish, before trial and before entering into a stipulation with the prosecution regarding what J.P. would say if called to testify at trial. Defendant contends his counsels "decision was neither informed nor rational, and it was not based on strategy and tactics founded on adequate investigation and preparation."
Defendant argues that J.P.s statement to defendant that her mother was sleeping was "critical" because "it corroborated one more thing that [he] told the police."
Second, defendant contends it provided an explanation as to why he did not ask R.G. for permission to take J.P. because it showed that "he thought [R.G.] was asleep and did not want to disturb her." Defendants mother testified that she told defendant not to knock on her bedroom door and that "[h]e doesnt knock because Im always so asleep." On appeal, defendant suggests that perhaps R.G. was also sleep-deprived, did not want to be disturbed, and might be taking a short nap in her busy schedule between work and school.
Third, defendant argues J.P. lied when she said her mother was sleeping, because she had just seen her mother awake. Defendant contends J.P.s statement raises "serious doubts about the childs perception of events, her truthfulness, and whether her testimony was reliable." In this regard, defendant asserts that if the jury knew J.P. was lying about the sleeping issue, then the jury would have reason to doubt her, such as whether she told defendant her mom was sleeping so that he would take her to the park or to play with his niece. Defendant contends this, along with his two phone calls to R.G. and the short span of time that they were gone, "would create a reasonable doubt in the jurys mind whether [he] was acting maliciously with the intent to detain or conceal the child." Defendant argues that by agreeing to the stipulation, "counsel forfeited the opportunity to cross-examine the child to resolve any inconsistencies" between her testimony and his statements. Defendant contends that even if counsel still decided to use the stipulation, counsel should have insisted the statement that the mother was sleeping be included.
Defendant concludes that "[d]efense counsels failure to investigate, failure to review the child witness statements to the police prior to entering a stipulation with the prosecution, failure to present the exculpatory statement that the child said her mother was sleeping, and the failure to use that statement to impeach the key witness testimony, fell below the standards of reasonably competent counsel and denied [him] effective assistance of counsel."
"A criminal defendant is entitled to `a reasonably competent attorney acting as a diligent, conscientious advocate. [Citation.] Although . . . trial counsel must be accorded wide latitude and discretion regarding trial tactics and strategy, `the exercise of that discretion must be a reasonable and informed one in light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation. [Citation.]" (In re Jones (1996) 13 Cal.4th 552, 566, italics in original.)
The record reflects that defense counsel knew about the video prior to trial, but did not learn about J.P.s statement regarding her mother sleeping until after the stipulation concerning J.P.s testimony "was put before the jury." Defense counsel stated at a sentencing hearing in September 2006 that his investigator told him about J.P.s statement "only after, almost after the trial . . . ." Although defense counsel learned from his investigator sometime during trial that J.P. told defendant her mother was sleeping, the record on appeal does not reflect why counsel failed to introduce this statement into evidence. For example, defense counsel could have sought another stipulation from the prosecution regarding J.P.s testimony that she told defendant her mother was sleeping.
Counsels failure to seek introduction of this evidence, however, could have been a valid tactical decision. The jury was not presented with any evidence establishing that defendant told police about this statement by J.P. Thus, introducing the underlying statement by J.P. would not have "corroborated one more thing that [defendant] told the police," as asserted by defendant. In the absence of evidence before the jury that defendant told police about this statement by J.P., defense counsel may have wanted to avoid highlighting what might be perceived as another inconsistency between what J.P. reported to police and what defendant reported to police.
In addition, and perhaps more significantly, if the jury learned that defendant was told about R.G. sleeping, it could reinforce the jurys impression that defendant took J.P. at an opportune time and with the intent to vex or annoy R.G.
As for cross-examining J.P., defense counsel might have reasonably concluded that J.P.s presence on the witness stand would not be helpful. Regardless of what J.P. said to defendant, her appearance on the stand might emphasize to the jury the unreasonableness of taking such a young child from her mother without permission. Counsel might also reasonably conclude that trying to portray a five-year-old child as a liar would be a risky strategy. The jury could view it as a misguided attempt to place the blame for the incident on the child.
Moreover, the defense attempted to portray the taking of J.P. as innocent and that J.P. was happy at defendants apartment, as reflected in the video he took of her. Attacking J.P.s ability to perceive events, such as whether her perception that her mother was sleeping was correct, could suggest that J.P. was easily confused and that defendant took advantage of that confusion by taking her to his apartment and appeasing her with juice and a video, thereby undermining the defense that J.P. really was happy at defendants apartment.
In view of the possible tactical reasons, we find that defendant has not established that his counsel rendered ineffective assistance of counsel, based on his counsels failure to introduce into evidence J.P.s statement that she told defendant her mother was sleeping.
Even assuming defense counsel should have introduced into evidence J.P.s statement to defendant that her mother was sleeping, we conclude that it is not reasonably probable the result of the proceeding would have been more favorable to defendant had counsel done so. There is no dispute that defendant took J.P., a five-year-old child, to his apartment without R.G.s permission. He repeatedly drove by R.G.s apartment despite the fact that they were no longer friends, and he took J.P. at a time when he knew R.G.s schedule necessitated her leaving soon with J.P. He also lied to J.P. that his niece would be present at his apartment. After J.P. was in his car, and despite his fear that his car would be impounded if police saw him driving, defendant drove J.P. to his apartment, where they were alone, and videotaped her. It was only after a period of time had passed that defendant attempted to call R.G. or that he returned with J.P. Defendant then repeatedly lied to police about the circumstances under which he was alone with J.P., including by indicating that he merely took her for a walk and, later, that his mother was present while J.P. was at his apartment. In view of this evidence, even if defense counsel had introduced into evidence J.P.s statement to defendant that her mother was sleeping, there is not "a reasonable probability that . . . the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Failure to Present Psychiatric Evidence
Next, defendant contends that counsel, "by failing to obtain a psychological evaluation and failing to consult experts prior to trial to determine [his] mental deficiencies, . . . deprived [him] of potential meritorious mental capacity defenses that could negate the malice element required for child abduction." Defendant argues that psychiatric evidence would have proved that his act of taking J.P. "was not a malicious intent to harm the mother, but a lack of logical reasoning and low intelligence." Defendant points to, among other things, counsels questions concerning defendants competency for trial, regarding his ability to comprehend the effect the taking of a child would have on a mother, and concerning a "mental pathology" when he refused to take probation in light of the risk of being sentenced to a longer term in prison. Defendant also refers to portions of the reports from the mental competency and diagnostic evaluations. Defendant asserts that his counsel "realized" he "had certain mental deficiencies which affected his reasoning process, and which could support an argument that he had no malicious intent to vex, annoy or injure, but was merely acting like a child might act and without good judgment. Yet, counsel did nothing to present this information to the jury."
Expert evidence of mental illness may be introduced "when relevant to whether a defendant actually formed a mental state that is an element of a charged offense . . . ." (People v. Coddington (2000) 23 Cal.4th 529, 582 (Coddington), fns. omitted, overruled on another point by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) A defendant is "free to offer evidence that he suffered from a mental disease or defect as well as evidence about that disease or defect." (Coddington, supra, 23 Cal.4th at p. 583.) However, the expert may "not . . . offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state." (Id. at p. 582.)
In this case, defense counsel was aware of his clients mental status, as he had expressed a doubt about defendants mental competency early in the proceedings and represented him throughout trial.
While reports from evaluations conducted after trial provided further insight into defendants mental condition, there may have been sound tactical reasons for counsel to forgo a further mental examination of defendant by an expert before trial, and to determine that calling an expert witness would not help his defense. The decision to call witnesses is a "matter[] of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Expert witnesses may be cross-examined regarding the foundation for their opinions. (Evid. Code, § 721, subd. (a); People v. Jones (2003) 29 Cal.4th 1229, 1254.) Counsel in this case may have been concerned that the cross-examination of any expert would have included questioning that referred to defendants prior acts of deception, such as lying to police, which, in addition to further highlighting this conduct by defendant for the jury, could discredit expert testimony regarding defendants "low intelligence, lack of abstract reasoning, and child-like understanding of social interactions" (as asserted by appellate counsel). (See People v. Jones, supra, 29 Cal.4th at pp. 1254-1255; see Coddington, supra, 23 Cal.4th at pp. 613-614.)
Counsel also might have a legitimate concern as to whether defendants description to an expert of the events surrounding the taking of J.P. would include additional inconsistencies which, if elicited on cross-examination of the expert, would reinforce a perception that defendant had been less than forthright with police, cast further doubt on defendants motivations for taking J.P., and cast doubt on the reliability of an expert opinion concerning defendants supposed low level of intelligence. (See People v. Jones, supra, 29 Cal.4th at pp. 1254-1255; see Coddington, supra, 23 Cal.4th at pp. 613-614.) Counsels own interactions with defendant before and during trial may have generated concern that defendants explanation of events to experts would result in additional inconsistencies presented to the jury or reinforce a perception that defendant was less than forthright in his description of events to police immediately after the incident. Case law recognizes that "counsels omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client." (People v. Lucas (1995) 12 Cal.4th 415, 443.)
On this record, we find that there may have been a reasonable tactical basis for defense counsels failure to consult with experts regarding defendants mental condition or for failing to present expert testimony regarding defendants mental condition.
Even assuming counsel should have presented expert opinion regarding defendants mental condition, defendant has not established prejudice from counsels conduct. Again, the evidence was undisputed that defendant took a five-year-old child to his apartment without the mothers permission. He repeatedly drove by R.G.s apartment, even though they were no longer friends, at an opportune time between her work and school schedule. He then lied to J.P. about his niece being present at his apartment. Despite being afraid his car would be impounded due to license problems, he nonetheless drove J.P. to his apartment, a private location where they could be alone, and he videotaped her. After he was alone with J.P. for a period of time, he finally attempted to call her mother and return her. Rather than truthfully describing to police the taking of J.P. and the time they spent alone, defendant made false statements about where they went, omitted facts about what they did, lied about who was present, and misrepresented the nature of his relationship with R.G. and J.P. In view of the evidence, defendant fails to establish a "reasonable probability" that, but for counsels failure to introduce expert opinion regarding his mental condition, a more favorable outcome would have resulted. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Failure to Object During Closing Argument
Lastly, defendant contends his counsel rendered ineffective assistance by failing to object to prosecutorial misconduct in two respects.
First, in closing argument, the prosecutor asserted that defendant gave police "a very detailed, very elaborate lie, a bald-faced lie." The prosecutor then referred to defendants statements, including an alleged statement to police that "he asked [J.P.] where her mother was, and she said her mother is sleeping." The prosecutor suggested that defendant was trying to portray R.G. as a "bad mother, sleeping away, as [J.P.] wanders aimlessly in the street, in harms way." Defense counsel countered the prosecutors assertions by making the following statements in his own closing argument: defendant "thought the mother was asleep," the "[g]irl tells him, my moms asleep," "[h]e thought she was asleep," and "if she had been sleeping, he would have called her, and he would have said, Well, its time to go to class, and, you know, Ill bring your daughter in class, because I picked her up."
No evidence was introduced at trial establishing that (1) J.P. told defendant her mother was sleeping, or (2) defendant told police that J.P. said her mother was sleeping.
In rebuttal argument, the prosecutor stated: "When [defendant] told Officer Vance that the girl was outside of the parking structure, on the corner, that the girl asked him to go for a walk, and she said her mom was asleep, we know that he, then, admitted that he lied about that statement. And we can prove the mom wasnt asleep. We can prove they didnt go on this elaborate walk."
On appeal, defendant points out that there was no evidence at trial that he "told the police [that J.P.] told him her mother was sleeping." In addition, he asserts that he "never admitted to lying about the `mom was asleep statement, whether during the trial or at any other proceedings." Defendant contends it was misconduct for the prosecutor to refer to his statement, which was not in evidence, and to "twist[]" the statement by characterizing it as a lie that he had admitted to.
A statement of a supposed fact not in evidence is a highly prejudicial form of misconduct. (People v. Hill (1998) 17 Cal. 4th 800, 827-828.) Whether the prosecutors conduct was inadvertent or intentional is not relevant. (Id. at pp. 822-823.) Here, there was no evidence presented that J.P. told defendant her mother was sleeping, or that defendant told police that J.P. said her mother was sleeping.
Defendant acknowledges that the failure to object to the prosecutors remarks during final argument generally waives the issue for appeal. (People v. Samayoa (1997) 15 Cal.4th 795, 841; accord People v. Hill, supra, 17 Cal. 4th at p. 820.) Although defendant has waived the claim, we will address the merits of the issue in response to his claim that the failure of his counsel to challenge the misconduct at trial constituted ineffective assistance of counsel. (People v. Mayfield (1993) 5 Cal.4th 142, 178.)
The "`[f]ailure to object rarely constitutes constitutionally ineffective legal representation . . . . [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 252.) In this case, defense counsel did not object to the prosecutors argument concerning supposed facts not in evidence. While J.P.s supposed statement about her mother sleeping was not in evidence, defense counsel nonetheless referred to that statement in his closing argument and attempted to use the statement to his clients own benefit. Thus, counsel appears to have made a tactical decision by not objecting to the prosecutors references to supposed facts not in evidence.
Moreover, if defense counsel had objected to the prosecutors statements, and the jury was admonished to only consider facts in evidence, the jury might be left with the impression that although no evidence was presented on the issue, the prosecutors statements were nonetheless true—that defendant was lying when he told police that J.P. said her mother was sleeping, and that he admitted to lying about this statement. This would only add to the prosecutors theme that defendant told several lies to police. (See People v. Huggins, 38 Cal.4th at p. 253 [although defense counsel failed to object to prosecutors remarks in closing argument, no ineffective assistance claim because "counsel may have preferred to offer the defenses bleak vision of the tribulations attendant to a lifelong prison sentence than to cut off discussion on the subject by objecting to the prosecutors remarks"].) Thus, it appears that defense counsel made a reasonable tactical decision to refrain from objecting to the prosecutors statements and instead use the alleged statement by J.P., which was not in evidence, in his own closing argument and for his clients benefit.
Second, defendant complains that in closing and in rebuttal argument his counsel did not object when the prosecutor "repeatedly told the jury that [defendants] intentions were not `pure. "Defendant asserts that "[t]he prosecutor also told the jury if there was sufficient evidence that [defendant] had done anything criminal with [J.P.], in a sexual manner, [the prosecutor] would be prosecuting [defendant] for child molestation." Defendant argues the prosecutor was implying that he was a "`suspected child molester" but was not charging him due to a lack of evidence. Defendant contends that without any evidence to support a child molestation charge, "the argument was purely an appeal to the jurors passion and prejudice."
In closing statements, the prosecutor argued that defendants numerous lies showed that his intentions were not "pure" when he took J.P. The prosecutor made this argument in the context of discussing the facts that established defendants intent, and in particular, the facts showing malice. For example, the prosecutor stated, "If [defendant] was so concerned about [J.P.s] well-being, if he had pure intentions, if there was no malice in his mind, in his heart, why didnt he stop the car, get out, go to the door, converse with the mom, bring the little girl inside, whatever he wanted to do, at that point, do it right then? Why circle the block? Why come back around? It doesnt make any sense, except that he knows their schedule. He knows exactly when she works. He knows she has to be at school at 12:30." The prosecutor subsequently explained, "When you talk about malice, if a person doesnt have malice, meaning has pure intentions, there are a lot of things he could have done that you can infer a lack of malice from. The first would be to not take her child."
Defense counsel in his closing statement countered with the following, among other arguments: "[T]he little girl said nothing bad happened. Watch the video. Shes laughing, smiling, watching the video. Theyre in the bedroom, because thats the little nieces bedroom. Thats where the video is. Thats where the player is, so of course she would be in there. Nothing untoward happened. You know, we live in an age where, frankly, men are suspect with little girls. At times, you might say, Id better not be around little kids, because people might think bad things about me. Well, thats what were getting here, with no proof, whatsoever, that this man did anything not pure. Just watch the video." Later, defense counsel concluded with the following: "So when you look at all the evidence, the short time, his actions, the video, not all these sinister implications that the Prosecutor wants you to see here, because phone calls, videos, I mean, its all out in the open. What was he doing? He was trying to be a friend. And he is not — thank you."
Immediately in rebuttal, the prosecutor stated: "Well, its all out in the open because [J.P.] told us about the video. The Defendant didnt tell anyone about the video. . . . And that video lasts a minute and 34 seconds, approximately, . . . So what that leaves us with is approximately 20 other minutes that the Defendant is with this young girl, and we dont know what happened. And the factthat we dont have evidence or that he did not molest her is not a factor in mitigation, in this case. If there was sufficient evidence that he had done anything criminal with her, in a sexual manner, we wouldnt be sitting here with Charge 1 being a 278 child abduction. Youd be sitting on a child molest case. Youd be asking to decide whether the Defendant molested her. So the fact that he didnt molest her is not to be considered as a factor in mitigation. It does not imply that hes a good guy. I mean, it is irrelevant whether [defendant] went to church with [R.G.]. It is irrelevant whether he brought her groceries, at one time, and helped her move. Youre not being asked to decide if [defendant] is a good person. This is not about whether he is a good or bad person. This is about whether, on May 15, 2006, he engaged in conduct that violates the law." (Italics added.) The prosecutor later stated, "Your job is very limited, and it is to apply the law to the facts and come up with a verdict. And that is whether he, on May 15th, committed the crime of child abduction—not child molest—child abduction. Did he take her? Did he take her from her lawful custodian? Did he take her with the intent to annoy, to vex, to injur[e], or to do an unlawful act, and did he do it with a specific intent to detain or conceal her? That is all you have to decide[] today." (Italics added.)
"A prosecutors misconduct violates the Fourteenth Amendment to the United States Constitution when it `infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] In other words, the misconduct must be `of sufficient significance to result in the denial of the defendants right to a fair trial. [Citations.] A prosecutors misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves `the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202 (Cole).)
When the claim concerns "`comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citations.]" (Cole, supra, 33 Cal.4th at pp. 1202-1203.) "In conducting this inquiry, we `do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements." (People v. Frye (1998) 18 Cal.4th 894, 970; accord, People v. Lopez (2008) 42 Cal.4th 960.) "Moreover, prosecutors `have wide latitude to discuss and draw inferences from the evidence at trial, and whether `the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]" (Cole, supra, 33 Cal.4th at p. 1203.) "The prosecutor, however, may not mislead the jury." (People v. Daggett (1990) 225 Cal.App.3d 751, 758.) In addition, "[i]t is improper for the prosecutor to appeal to the passion and prejudice of the jury in closing argument during the guilt phase of trial. [Citation.]" (People v. Simington (1993) 19 Cal.App.4th 1374, 1378.)
We find that it was unlikely the jury construed the prosecutors remarks in an objectionable fashion. (Cole, supra, 33 Cal.4th at pp. 1202-1203.) Taken in context, the prosecutors comments regarding whether defendants intentions were "pure" did not suggest to the jury that defendant was, or was suspected of being, a child molester. The prosecutors comments were made in the context of discussing the elements of malice and intent, and what facts were pertinent to those elements, such as defendants numerous lies.
The prosecutors comments regarding molestation also did not suggest to the jury that defendant had molested, or was suspected of molesting, J.P., and were fairly responsive to defense counsels suggestion that because J.P. was not harmed, defendant did nothing wrong. Indeed, the prosecutors rebuttal argument specifically refuted the implication, whether raised by defense counsel or otherwise, that defendant was suspected of molesting J.P., or had molested J.P. (See generally People v. Lopez, supra, 42 Cal. 4th at p. 967 [prosecutors argument that jury should not give defendant favorable treatment just because he happened to be a priest was proper, even though prosecutor also argued that priests "`commit sins" and "`commit horrendous crimes"] [italics omitted].) The prosecutor also made clear that the only crime at issue was child abduction. Because we discern no misconduct regarding the prosecutors comments in this regard, we conclude that defense counsel was not ineffective for failing to object to this aspect of the prosecutors remarks.
Cumulative Error
Defendant argues his conviction must be reversed due to the cumulative errors that resulted in a fundamentally unfair trial. Our Supreme Court has recognized that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) Given the conclusions that we have reached in this case, defendants cumulative error argument is not well taken.
IV. DISPOSITION
The judgment is affirmed.
We concur:
MIHARA, J.
DUFFY, J.