Opinion
D073112
03-05-2018
THE PEOPLE, Plaintiff and Respondent, v. LAQURON DEANISE MCLEAN LACY et al., Defendant and Appellant.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant Laquron Deanise McLean Lacy. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Gregory Bernard Lacy. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Felicity Sonoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1406322 ) APPEAL from judgments of the Superior Court of Riverside County, David A. Gunn, Judge. Affirmed as modified. Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant Laquron Deanise McLean Lacy. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Gregory Bernard Lacy. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Felicity Sonoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gregory Bernard Lacy (Lacy) of oral copulation or sexual penetration of a minor 10 years old or younger (Pen. Code, § 288.7, subd. (b); count 1); and four counts of lewd and lascivious acts with a minor under the age of 14 (§ 288, subd. (a); counts 2, 4, 5, 6). The jury also found true that Lacy committed an offense against more than one victim. (§ 667.61, subd. (e)(4).) The jury acquitted Lacy under count 3, cruel and inhuman corporal punishment and injury resulting in a traumatic condition upon a child. (§ 273d, subd. (a).)
Statutory references are to the Penal Code unless otherwise specified.
A jury also convicted Laquron Deanise McLean-Lacy (McLean-Lacy) of seven counts of cruel and inhuman corporal punishment and injury resulting in a traumatic condition upon a child (§ 273d, subd. (a); counts 7, 11-13, 16-18); four counts of child endangerment (§ 273a, subd. (a); counts 8, 9, 14, 19); and one count of torture (§ 206; count 10). The jury also found true that McLean-Lacy personally used a deadly and dangerous weapon within the meaning of sections 667 and 1192.7, subdivision (c)(23) in the commission of counts 9, 13, and 14. The jury acquitted McLean-Lacy of one count of cruel and inhuman corporal punishment and injury resulting in a traumatic condition upon a child (§ 273d, subd. (a); count 15).
The court sentenced Lacy to prison for a total of 75 years to life, consisting of 15 years to life on count 1, and consecutive 15-years-to-life terms on counts 2, 4, 5, and 6.
The court sentenced McLean-Lacy to prison for 26 years four months to life, consisting of the upper term of six years on count 7; and one-third the midterm of four years (one year four months) on counts 8, 9, 11, 12, 13, 14, 16, 17, 18, and 19 (each to run consecutively); and a consecutive seven-years-to-life term on count 10. The court also imposed one year terms for the deadly weapon enhancements as to counts 9, 13, and 14, but stayed those sentences.
Both Lacy and McLean-Lacy appeal. Lacy contends the trial court committed prejudicial error by excluding a witness at trial and limiting the cross-examination of a witness. He also claims the trial court committed judicial misconduct and the prosecutor committed misconduct by having ex parte communications about the excluded witness. Additionally, Lacy asserts cumulative error requires reversal as well. Finally, Lacy joins McLean-Lacy's arguments that inure to his benefit.
Although Lacy, in his opening brief, joined in the arguments advanced by McLean-Lacy, he did not supply any additional argument on any of the issues raised by McLean-Lacy. Joinder may be broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), but each appellant has the burden of demonstrating error and prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice."].) McLean-Lacy raised a sentencing issue unique to the counts against her and the sentence stemming from those counts. Lacy does not explain how McLean-Lacy's sentencing claim applies to his sentence. As such, we summarily reject this sentencing issue as to Lacy.
McLean-Lacy maintains the trial court erred by not staying her sentence under count 14 pursuant to section 654.
We conclude none of Lacy's arguments have merit. However, we agree with McLean-Lacy and, as such, we modify the judgment as to her accordingly. In all other respects, we affirm the judgments.
FACTUAL BACKGROUND
Prosecution
In 2012, Lacy and McLean-Lacy (together Appellants) lived at a residence in Perris along with seven children that McLean-Lacy adopted and/or fostered in return for public assistance of about $6,000 per month. Of these seven children, the girls are Ma.M., twins Me.M. and Mi.M., and B.M.; and the boys are R.M., M.M., and J.M.
In July 2012, Riverside County Sheriff's deputies discovered during an unrelated investigation that Appellants were illegally operating a strip club out of their residence. An eight-foot metal dance pole on a movable platform was erected in the middle of the living room. An area of the kitchen counter was converted to a D.J. booth, with equipment, CDs, and play lists. Another area of the kitchen counter had been converted to a bar, with price lists for beer and alcoholic beverages. "Admit One" tickets were on the kitchen counter as well as fliers for the business. The fliers advertised the grand opening of "Ynvee Erotic Zone" on June 28, 2012. The fliers indicated the hours of operation as Monday, Thursday, Friday, and Saturday from 11:00 p.m. to 2:00 a.m., and solicited patrons to "come and live out your fantasies." The fliers also referred to the stripper pole and private dances, boasting performances by "the hottest girls in the Inland Empire." A commercial sign stating the hours of operation was posted on the living room wall. The door to the bathroom on the first floor of the residence had commercial signage that indicated the restroom was designated for both genders.
At the top of the stairs leading to the second floor of the residence, a loft-like area was set up as a photo studio, equipped with high end photography gear, a multicolored backdrop, and the letters "Y-N-V-E-E" on the wall. The master bedroom and adjoining bathroom, two other bedrooms, a hall bathroom, washer and dryer area, and small hall closet were on the second floor. On the bed in the master bedroom, police located a calculator, cash, glasses, and a tally sheet that listed dancers' alter ego personalities such as "Thunder," "Paradise," "Passion," and "Fantasy," showed the amount of money the dancers brought in, and a "30%" column.
Following the investigation, the seven children fostered by McLean-Lacy were removed by child protective services and placed in foster homes. On August 15, 2012, Dr. Clare Sheridan, a pediatrician at Loma Linda Children's Hospital who specialized in child abuse evaluations, met the children. She conducted general physical exams and documented the evidence of injury on their bodies with photographs and recorded statements of the children during their exams. At trial, Sheridan testified about her examinations of the children and presented evidence of scars, body marks, rug burns, and other indicia of abuse present on the bodies of R.M., M.M., Mi.M., Me.M., and B.M.
At the time Sheridan examined the children, R.M. was 11 years old, M.M. was six years old, Mi.M. and Me.M. were seven years old, and B.M. was five years old. Because McLean-Lacy was the only defendant convicted of physically abusing the children and she does not challenge the sufficiency of the evidence against her, we omit any detailed discussion of the medical testimony consistent with the abuse. Suffice it to say, the evidence was extensive, shocking, and revolting.
In 2016, at the time of trial, R.M., now 14, and M.M., now 10, testified about living at the residence with Appellants. They shared a room with J.M., while the girls shared their own room. There were mattresses in the boys' room; however, they were wrapped in plastic and propped against the wall. Because McLean-Lacy did not allow the boys to sleep on the mattresses, they slept on the floor. There was a dresser in the room, but it was inside a closet that remained locked. When allowed, the children used the bathroom on the second floor, near their rooms. However, McLean-Lacy usually locked the children in their rooms. She told the children they were stealing if they went to the kitchen for food without her permission. R.M. thought this was why she locked them in their rooms. If one of the children needed to use the bathroom while locked in his or her room, he or she would knock on the door or yell to be let out of the room. Most of the time, nobody responded to the pleas. When a child could no longer wait to be let out, he or she would urinate or defecate in his or her pants. Because the closet was locked, the child could not change out of the soiled clothes. Sometimes, as punishment for playing too loudly in the room, R.M. or M.M. would be forced to sleep in the hall closet without a pillow or blanket. R.M., who slept in the closet more than the other children, had to scrunch up his body to fit in it. M.M. was small enough to be able to stand inside the closet against the shelves. M.M. did not like it when McLean-Lacy forced him to sleep in the closet because he wanted to be in his room with his brothers. Because the hall closet was not locked, the other children would ask to be let out of their rooms to use the bathroom. When M.M. was in the hall closet, sometimes he opened the bedroom doors, but other times he was too afraid to let the others out for fear of being caught by McLean-Lacy and getting whipped.
Because R.M. had "accidents," he was forced to wear diapers instead of underwear. M.M. also wore diapers. R.M. was beaten with the belt sometimes when he had accidents. One time after R.M. had an accident, McLean-Lacy forced him to eat his own feces. After McLean-Lacy made him put his feces in his mouth, he tried to spit it out because it was "nasty." B.M. was in the bathroom when R.M. rushed in to spit out feces that McLean-Lacy forced him to put in his mouth. She also saw R.M. and Ma.M. eat dog food, while on their hands and knees, on McLean-Lacy's command.
When R.M. was in his room with the door open, sometimes he saw Lacy kiss his sisters on the lips with short and long kisses. Lacy never kissed R.M. or his brothers the same way. According to R.M., McLean-Lacy abused him the worst and he was most fearful of her. She hit him with whatever she could grab. Once, she hit him in the head with the rod normally used to open and close the blinds. R.M. described feeling like he was "falling down from a building" after the blow. His head started to bleed from the blow and his shirt was eventually covered in blood. McLean-Lacy did not take him to the hospital, but stopped the bleeding with a towel. Another time, McLean-Lacy threw a clock radio at his head that caused R.M. to see "stars." She did not take him to the hospital.
McLean-Lacy also threw a ketchup bottle at R.M., hitting him on the forehead. In another instance, she beat him with a vacuum cleaner extension so badly that he sustained carpet burns in his effort to escape the beating. She restrained R.M. more than once by taping his hands, wrists, and arms together. She twice taped his mouth shut. McLean-Lacy also restrained M.M. by taping his hands together. She used a belt, a spoon, and a hanger to beat M.M.
McLean-Lacy choked R.M., making it hard for him to breath. R.M. explained that he could not escape being choked because he could not think straight; he was scared he was going to die. McLean-Lacy also choked M.M. She put her hands around his neck and pushed him against the wall. She also punched him in the face causing one of his teeth to fall out and his nose to bleed.
B.M., age 10 at the time of trial, testified to similar acts of physical abuse. She was locked in her room with her sisters "a lot." When McLean-Lacy did not answer their calls to be let out of the room to use the bathroom, they urinated on themselves. On three occasions, as punishment for making noise while playing in her room, B.M. was forced to sleep in the closet, under a shelf, with no pillow or blanket. McLean-Lacy hurt B.M. when she hit her with a hanger or "the thing for the curtains" as punishment for being too loud. She hit B.M. on her back, stomach, and buttocks. One time when B.M. was watching McLean-Lacy cook, McLean-Lacy threw a can of tomato sauce at her. The can hit B.M.'s left eye. B.M. described the pain as feeling like, "you're falling on your face on a rock." It bled. McLean-Lacy gave B.M. an ice pack and sent her to her room.
When the children and McLean-Lacy had meals at the table together, McLean-Lacy imposed rules. B.M. articulated the rules as: eat your food and put your head down when you are finished. R.M. recalled rules at the table that required the children to not share their food or talk at the table. They had to put their heads down at the table. Although R.M. was afraid of McLean-Lacy, he still loved her because she fed them. Yet, according to B.M., sometimes she did not feed them and the children went to bed hungry.
B.M. knew that R.M. and M.M. were forced to wear diapers. Even though she had accidents in her pants because she was forced to stay in her room, B.M. did not have to wear diapers. Lacy checked B.M.'s, Me.M.'s, and Mi.M.'s underwear for stains by pulling on the back of their pants. B.M. never saw Lacy check any of the boys' pants.
At trial, it embarrassed B.M. to talk about the way Lacy touched her buttocks when he checked her pants. McLean-Lacy told Lacy to stop touching B.M.'s buttocks because if he did not, he would go to jail. When B.M. was interviewed by Riverside County District Attorney Investigator Susan Zappia in March 2014, she was not comfortable but appeared most uncomfortable when talking about Lacy touching her body. B.M. was visibly upset and teary-eyed when she told Zappia that Lacy touched her inappropriately. After B.M. used the bathroom on the first floor of the residence, Lacy called her over to the couch in the living room. He told her to open her pants. When she refused, he pulled her underwear and leggings away from her body and said, "Girl, you have a brownie in your pants." Lacy put his hand inside her pants and touched her vagina. She described a squeezing motion that he used with his hand. Lacy then slid his hand to her buttocks area, "outside of the crack." B.M. recalled that her brothers and sisters were in the living room when the touching occurred. McLean-Lacy was in the kitchen doing dishes. McLean-Lacy told Lacy to stop or she would call the police. Lacy told B.M. not to tell anybody what he did or he would put her in the corner and hit her. B.M. was embarrassed about anybody finding out about the touching for fear of people making fun of her. She did not talk to her sisters about what Lacy did to her.
Mi.M. and Me.M., both 11 years old at the time of trial, testified about the abuse they endured while living with Appellants. Their accounts were like the others. McLean-Lacy beat Mi.M. with a piece of metal all over her body that left marks. Lacy beat Mi.M. with a cane. Once, when Mi.M. was banging on the bedroom door to be let out, McLean-Lacy entered, picked up Mi.M., and pushed her into the wall, hurting Mi.M.'s arm. Mi.M. does not know why, another time, McLean-Lacy threw a glass at her that hit her body. McLean-Lacy whipped Me.M. with a hanger and a belt on her back and leg. When Me.M. relieved herself in her pants, McLean-Lacy choked her against the wall, and Me.M. could not breathe. McLean-Lacy finally stopped and told her to take a bath.
For both Mi.M. and Me.M., it was harder to talk about the things that Lacy did to them. Mi.M. did not receive goodnight kisses from McLean-Lacy, but Lacy kissed her on the lips for a long time, which made Mi.M. mad because it was "nasty." Mi.M. did not tell McLean-Lacy because she was scared of her. She did not see Lacy kiss her sisters.
Lacy gave Me.M. long kisses on the lips that made her uncomfortable. She did not believe that she was the only one he did this to, but she did not talk about it with her siblings. Lacy also put his lips on Me.M.'s vagina. She did not know if anyone saw him do that to her. Me.M. stated that she did not talk to Ma.M. about what Lacy did to her.
Defense
Lacy called social worker Shavonda Thomas as a defense witness. Thomas was assigned to work with the children in 2012. Thomas admitted that B.M. did not disclose any sexual abuse to her. Also, B.M. did not tell Thomas that anybody checked to see if she had soiled her underwear. Thomas believed that B.M. told a foster parent that she had been molested. Thomas referred B.M. to the "STARS program," which is for children who have been sexually abused. However, Thomas was never specifically advised by any social worker that B.M. had reported sexual abuse, underwear checks, vagina rubbing, or anything similar. Thomas believed B.M. had experienced trauma and would require a lot of therapy to work through her trauma. That said, Thomas admitted the trauma B.M. was addressing could have been physical abuse, beatings, emotional abuse, or general neglect abuse, and did not necessarily involve sexual abuse.
Lacy also called Denise Moore, a Riverside County child therapy interviewer, who interviewed all seven children in August 2012, relating to the physical and sexual abuse charges against Appellants. Me.M. told Moore that Lacy would not beat the children if they soiled their underwear, but McLean-Lacy would. Me.M. did testify, however, that Lacy hit her with a cane. She also told Moore that Lacy kissed her on the lips. He kissed her on the mouth. Me.M. told Moore that it happened in Lacy's bedroom, and all the kids were present and witnessed it.
Moore asked Me.M., "I heard that something happened with privates. What happened?" Me.M. was reluctant to talk about sexual acts. At first, she said, "I forgot." Then she responded: "I don't know, but [Ma.M.] knows," and "Well, why don't you go ask [Ma.M.]?" Later in the interview, Me.M. stated that Lacy kissed her privates when her clothes were off. Me.M. initially reported that this happened in the girls' bedroom. Subsequently, she said it happened in the bathroom located inside Appellants' bedroom. Me.M. told Moore that Ma.M., Mi.M., and McLean-Lacy saw this happen, but they just walked away after Lacy noticed them watching. Nevertheless, she also said that Lacy stopped when McClean-Lacy came into the room.
There was some confusion in the record regarding whether Me.M. was discussing being kissed on her mouth or her vagina and where such acts took place. Later during Moore's testimony, she stated that Me.M. told her that Lacy kissed Me.M. on the mouth in Appellants' bedroom, and the other girls witnessed it. Moore indicated that Me.M. told her that Lacy kissed Me.M. on the vagina while in the bathroom. However, Moore admitted that no one confirmed Me.M.'s version of events.
Me.M. told Moore that Lacy had sex with all four girls in the same room. No one else reported these events to Moore.
Moore conducted two interviews with Mi.M., one in August 2012 and a second interview 14 to 18 months later, in 2014. In the first interview, Mi.M. did not report any sexual abuse. Mi.M. reported that sometimes Lacy beat some of the boys with a cane, and she feared Lacy. Mi.M. told Moore that McLean-Lacy had hit her with a belt. At the end of her first interview with Mi.M., Moore asked her if anyone had told her what to say during the interview. Mi.M. responded in the negative. Moore also indicated that she did not get the impression that Mi.M. was "hiding anything." Moreover, when she asked Mi.M. if she told the truth, Mi.M. responded in the affirmative.
Moore testified that in the second interview, Mi.M. stated that Lacy had sex with all the girls, one after another when they were in the room together. Moore testified that none of the other girls mentioned Lacy having sex with them. Mi.M. could not define what she meant by having sex, did not indicate any body parts that were touched, and said she did not know what "sex" meant. She used the word "molested," and said she looked it up in the dictionary but could not remember what the dictionary said. Mi.M. also told Moore that she was not aware of anything sexual happening to Me.M. in the bathroom.
Later, Moore testified that it was Me.M. who reported to her that Lacy had sex with all four girls in the same room. But immediately after agreeing that Me.M. told her this information and that nobody else had told her about Lacy having sex with all the girls, Moore was asked, "In fact, none of the girls told you about that for sure, correct?" To which, Moore replied, "Correct."
Mi.M. told Moore that she saw Me.M. give Lacy a "tongue kiss." She also stated that she saw strippers at the house and used her body to show Moore how they would "dance on a pole for a boy."
Moore also was asked about her interview with R.M. She asked him., "I heard sometimes that he [Lacy] uses a cane for punishment. Tell me about that." R.M. said nothing. Moore asked R.M., "I heard something happened to one of your sisters in the bathroom. Tell me about that." R.M. responded, "I don't know anything about that," and "I don't know what you're talking about." R.M. told Moore that Lacy kisses all the girls on the cheek. He said he did not see Lacy touching his sisters in an inappropriate way. However, Moore stated that R.M. did not want to talk to her and asked if he could stop talking.
Lacy also recalled Zappia as a witness. Zappia testified that in her second interview of B.M., in 2014, B.M. stated Lacy never hit or hurt the children, he only kissed her on the cheek, she never saw him kissing anyone on the mouth, and never saw him doing any "bad touching" to her sisters.
Regarding the underwear checking incidence, Zappia asked B.M. if anyone other than Ma.M. was in the living room when it happened. B.M. responded that, "The whole family was." Zappia asked, "And did they all see it?" B.M. responded: "The kids, the mom and dad, and that's all."
McClean-Lacy did not present a defense.
DISCUSSION
I
THE EXCLUSION OF MA.M. AS A WITNESS AT TRIAL
A. Lacy's Contentions
Lacy contends the trial court prejudicially erred in refusing to permit his counsel (1) to call Ma.M., who had a history of falsely reporting abuse, as a witness to show how she influenced the other girls' allegations of sexual abuse; and (2) to examine Moore about statements Ma.M. made to her. We reject these contentions.
Lacy also argues that the trial court and prosecutor committed misconduct by engaging in an ex parte discussion regarding Ma.M.'s psychological well-being. Although we do not countenance ex parte discussions like the one that occurred here, we observe the court informed Lacy's counsel that the discussion occurred and the prosecutor put on the record the substance of the conversation. Lacy did not object to the fact the ex parte discussion occurred or the substance of that discussion. Accordingly, we conclude Lacy forfeited his challenges based on the ex parte discussion. Nevertheless, if we addressed the merits of Lacy's claims, we would not find reversible error because Lacy was not prejudiced by the ex parte contact.
B. Background
In the amended information, the prosecution charged Lacy with, among other offenses, four counts of lewd and lascivious acts with a minor under the age of 14 (§ 288, subd. (a)); and sexual penetration of a minor under the age of 14 by means of force, violence, duress, menace, fear, and threat (§ 269, subd. (a)). These offenses involved Ma.M. In a pretrial motion, Lacy sought permission to introduce evidence of Ma.M.'s statements to authorities concerning six allegations that she made against a different foster father (David) after she was removed from Appellants' residence. These incidents were as follows: (1) a December 2013 allegation by Ma.M. that David sexually abused her, which was determined to be unfounded; (2) a May 2015 allegation by Ma.M. that David hit her brother in the head with a barstool, which Ma.M. later admitted she lied about the incident because she was upset with David; (3) a March 2015 report by Ma.M. that David did not feed the children and kicked them out of the house, and subsequently Ma.M. admitted she lied about these events; (4) a March 2015 report by Ma.M. that David punched her in the nose and she had to go to the hospital (her siblings contradicted the story); (5) a May 2015 report by Ma.M. that David hit her brother in the head with a telephone, which was determined to be unfounded; and (6) a December 2013 report by Ma.M. that David stabbed her with a screwdriver and threw her and her brother off a banister, nearly breaking their necks, which was determined to be unfounded.
The amended information included several other counts, with Ma.M. as the victim, against Lacy and McLean-Lacy. These other counts involved kidnapping (§ 207, subd. (a)); torture (§ 206); and infliction of cruel and inhuman corporal punishment (§ 273d, subd. (a)).
In an addendum to his motions in limine, Lacy sought to add a seventh incident that apparently involved Ma.M. lying about her mother beating her. This seventh incident does not impact our analysis.
At oral argument on Lacy's motion, the prosecutor conceded and the court agreed that Ma.M.'s prior admissions of lying were relevant and admissible (incidents 2 and 3). However, the prosecution maintained that incidents 1 and 3 through 6 were not admissible under Evidence Code section 352 because the prosecutor would have to "put on a separate trial to indicate that she was being truthful[.]" The prosecutor emphasized the difference between Ma.M. admitting that she lied and a finding that what Ma.M. complained of was unfounded. Ultimately, the court ruled that Lacy could not offer any evidence as to incident 1 because the court found "very little relevance to" it. However, the court stated that incidents 2 and 3 were admissible because they were admissions of untruthfulness. As to incidents 4, 5, and 6, the court thought Ma.M. could be asked about them in a limited manner. The court indicated its willingness to entertain additional briefing of the admissibility of incidents 1, 4, 5, and 6. The court specifically stated that it needed additional information on incident 1 before it would permit Lacy to question Ma.M. about it. In arguing that he should be allowed to inquire about incident 1, Lacy's trial counsel explained his theory that Ma.M. was the "chief protagonist of all the children," and had demonstrated "a continuing willingness . . . to fabricate allegations when she [was] upset with an adult." The court indicated a willingness to "revisit the area" if Lacy provided additional information and briefing.
During the prosecution's case-in-chief, it called Sheridan. In addition to other testimony, Sheridan testified about her contact with Ma.M. during the physical exam and Ma.M.'s statements at that time. Ma.M. was a shy girl with a sad demeanor. She had a lot of scrapes, loop-like scars on her lower back, and evidence of a second degree burn on her lower leg. She had scratches on her chest and face that she reported were inflicted by J.M. She also reported that McLean-Lacy hit her with a belt. When Sheridan performed a genital exam, she noticed that Ma.M. had tears in her eyes and squeezed the medical assistant's hand. Ma.M. told Sheridan that Lacy put his finger in her vagina.
The prosecution, however, did not call Ma.M. as a witness. After the close of its case, the prosecution dropped the charges involving Ma.M.
Before beginning the defense case-in-chief, Lacy's trial counsel indicated that he wanted to call Ma.M. as a witness. The court, noting the prosecution had not called Ma.M. as a witness, asked Lacy's counsel for an offer of proof. Counsel responded:
"[Ma.M.] has a lot to say. [Ma.M.] -- well, to begin with, your Honor, I'm not sure I know why I need an offer of proof. [Ma.M.] has lots to say about this case that's relevant to not only her situation but other children, [Mi.M., Me.M] -- most importantly [Me.M.]. [¶] She has her own tale to tell, which I believe is absolutely impeachable. It shows -- it begins to show a pattern of deceit that I think the jury needs to hear."
The court asked for further clarification and Lacy's counsel explained that Ma.M. was "exaggerating or fabricating" her claims against Lacy. In addition, counsel argued Ma.M.'s testimony would "make it clear that what [Me.M.] said happened couldn't."
The court observed that Lacy's trial counsel could not call a witness simply to impeach her. The court also asked Lacy's counsel to explain the purpose of calling Ma.M., noting that the prosecution had not called her and was not proceeding on the sexual abuse related counts as to Ma.M. In response, Lacy's counsel set out Lacy's defense and how it involved Ma.M. as a witness: "The oldest of the female children, [Ma.M.], had an influence on the other girls and was the reason the other girls told the stories that they did. [Lacy is] not going to receive due process if you don't let me present that evidence to the jury."
The prosecutor responded to Lacy's counsel, asserting that defense counsel had not given a single offer of proof to show how Ma.M. would impeach any of the other witnesses. The prosecutor further stated it would "be a misuse of justice" and "a waste of the Court's time" to allow counsel to call Ma.M. "simply to impeach her."
The court then focused on defense counsel's claim that Ma.M. would impeach the other children. It thus set out what it believed to be Lacy's counsel's shortcomings in arguing that Ma.M. was an essential defense witness:
"Your offer that she somehow impeaches the other children, I'm still waiting to hear more with respect to that. I mean, I don't -- you asked several of the children, if I recall, if they discussed the case -- if they discussed the case with her, if they were with her after this -- after they were removed from the house for a period of time. None of it established that there was any type of conversation going on between them about what had taken place in the Perris house. [¶] So I think to call [Ma.M.] simply to impeach her . . . she has apparently been untruthful in statements that she's made with respect to other foster parents. I don't know exactly what the extent of the allegations were, but she admitted some untruthfulness with respect to allegations concerning other foster parents. [¶] Again, I -- I think under a[n Evidence Code section] 352 analysis, again, the minor
probative nature of the evidence, which would be to impeach the other girls with apparently your contention that they got together to make up a story, which hasn't been shown at all at this point -- [brief interruption by Lacy's counsel then the court continued] [¶] Again, the minor probative nature of that evidence is far outweighed by the prejudice of bringing in apparently -- I heard some of this on Friday. Maybe [the prosecutor] should put some more of this on the record, but to put on a psychologically damaged child to testify simply because you want to impeach her with statements that she's been untruthful in the past, I think again my obligation under [Evidence Code section] 765 -- my obligations under 288(b), when he's not pursuing those counts against your client, frankly I think it's a dangerous -- an incredibly dangerous path for you to pursue. That's up to you, of course. But he's not pursuing the counts involving [Ma.M.] against your client. To call her to the stand could well make those counts, but, again, that's up to you, of course. [¶] But, again, on a[n Evidence Code section] 352 basis and under my obligation pursuant to 288(b) and 765 of the Evidence Code, I think I have some obligation not to further damage a minor witness just because we want to impeach her to show that she's an untruthful person. That doesn't impeach any of the other children unless you can prove that they were untruthful or that they mimicked something that she had told them, and at this point I see it as being far afield from what your offer of proof is."
Lacy's counsel then made a more explicit offer of proof, arguing that Ma.M. would impeach Me.M. as to where Me.M. was sexually abused. In addition, Lacy's counsel represented that Ma.M. would testify about conversations between Ma.M. and Me.M. that took place before Moore interviewed the children. Lacy's counsel, however, did not explain what was discussed in those conversations.
The court remained unconvinced, but then told Lacy's counsel that when he was absent from court the previous Friday (because of a death in the family), the court and the prosecutor had an "informal discussion" about the current psychological status of Ma.M. The prosecutor subsequently explained what had been discussed:
It appears in the record that McLean-Lacy's trial counsel was present in court, but it is not clear if counsel was present or participated in the "informal discussion" as there is no record of that discussion.
"I've talked to [Ma.M.'s] psychologist. I have talked to a counselor. She's in a special home right now. She has been having extreme nightmares. She was on suicide watch at some point, and every time that we spoke to her foster father, he said that she testified at [the] preliminary hearing -- she was starting to get better. When she came in and testified, all of a sudden she went backwards and started to have these violent nightmares once again of both defendants. And the stepfather was in great fear, he indicated to myself and to my investigator, of her having to go through this again and her going backwards again due to the suicidal thoughts, due to the extreme pressures that she was under regarding this case."The prosecutor also stated that Ma.M.'s psychological state was "one of the main factors" that he did not call her as a witness.
The court then reiterated that, without more, under Evidence Code section 352, the "minor probative value of calling [Ma.M.] to impeach her . . . and . . . possibly impeach one of the other minor witnesses," "the prejudice far outweighs that." The court also ruled that Lacy's counsel could not question Moore about what Ma.M. had told her because it would be irrelevant as well as hearsay.
McLean-Lacy's trial counsel also objected to any testimony from Ma.M. as to physical abuse regarding McLean-Lacy.
C. Analysis
Evidence may be excluded under Evidence Code section 352 if its probative value is "substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Harrison (2005) 35 Cal.4th 208, 229.) A trial court has broad discretion to exclude evidence under Evidence Code section 352. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933; People v. Minifie (1996) 13 Cal.4th 1055, 1070.) A trial court's evidentiary rulings admitting or excluding evidence are reviewed for abuse of discretion, " ' "and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Geier (2007) 41 Cal.4th 555, 585.)
Here, Lacy maintains that the trial court abused its discretion in excluding Ma.M. as a witness and by not allowing Lacy's counsel to question Moore about what Ma.M. told her. We disagree.
Below, Lacy advanced two reasons why he should be permitted to call Ma.M. as a witness. First, he wanted to impeach Ma.M. by showing she was not truthful. Second, Ma.M.'s testimony and/or statements to Moore would impeach the other children. Regarding impeaching the other children, Lacy claimed below and repeats the argument here that Ma.M. influenced her other siblings to claim that Lacy sexually abused them. Put differently, Lacy's theory is that Ma.M. caused her sisters to falsely accuse and testify against him about sex acts that Ma.M. made up and told her sisters to report. Below, the trial court asked multiple times for an offer of proof to show Ma.M.'s testimony would impeach the other children and/or show that Ma.M. was behind all the allegations of sexual abuse. Indeed, the court even pointed out that Lacy's counsel had asked the children if they had talked to Ma.M. after being removed from the Perris house, and the court noted that such testimony did not establish what was discussed among the children to the extent the other siblings spoke with Ma.M at all. In response, Lacy's counsel represented to the court that Ma.M. would impeach Me.M. as to where Me.M. was sexually abused as well as testify about conversations between Ma.M. and Me.M. that took place before Moore interviewed the children. Thus, even when directly asked by the court, Lacy's counsel did not provide an offer of proof to support his theory regarding why Ma.M.'s testimony was essential for Lacy's defense. He merely stated that Ma.M. would impeach Me.M. as to where (i.e., in what room) she was abused. He did not represent that Ma.M. would testify that Me.M. was not abused.
In addition, Lacy's counsel did not represent that Ma.M. would testify that she told Me.M. to lie about the abuse. At most, he told the court that Ma.M. would testify that she talked to Me.M. before Me.M. talked to Moore. He did not offer the substance of that conversation or state that during that conversation Ma.M. told Me.M. to make up claims of sexual abuse against Lacy. Further, Lacy's counsel did not claim that Ma.M. talked to any of the other children after they were removed from Appellants' residence. Based on this record, we agree with the trial court that Lacy's offer of proof fell short of showing how the other children's claims that Lacy sexually abused them were the product of Ma.M.'s lies and influence over the other children.
Additionally, we observe that the trial court gave Lacy several opportunities to explain how Ma.M. could impeach the other children. Indeed, even before trial, when Lacy moved to allow questioning of Ma.M. as to the seven previous incidents, Lacy's counsel argued that he should be allowed to question Ma.M. about her unfounded claim against her foster father David that he sexually abused her. As part of his argument, Lacy's counsel insisted that Ma.M. was the "chief protagonist of all the children" and was behind all the allegations of sexual abuse from the other children. However, the court was not convinced, finding the incident involving Ma.M.'s claim of sexual abuse irrelevant. Yet, the court was willing to consider the issue further if the parties submitted additional briefing. There is no indication in the record that Lacy submitted additional briefing.
Additionally, Lacy's counsel was aware, before trial, that the court was not persuaded by his representation that Ma.M. somehow influenced the rest of the children to fabricate their claims of sexual abuse. When Lacy broached this issue after the conclusion of the prosecution's case, the court noted that there was no evidence in the record supporting Lacy's theory that Ma.M. had influenced the other children and convinced them to lie about Lacy sexually abusing them. As such, the court viewed Lacy's multiple offers of proof as tainted by speculation instead of any reasonable extension of what had occurred at trial or what was otherwise in the record. (See People v. Mehserle (2012) 206 Cal.App.4th 1125, 1154 ["there was an element of speculation in the defense offer of proof"]; People v. Eid (1994) 31 Cal.App.4th 114, 126-127 [insufficient offer of proof when "based on nothing more than optimistic expectation"].)
Further, we note that some of the incidents that Lacy's counsel wanted to question Ma.M. about undercut Lacy's theory that Ma.M. somehow was the mastermind behind the children's allegations of sexual abuse. For example, in one of the incidents, a March 2015 report by Ma.M. that David punched her in the nose resulting in her treatment at a hospital, her siblings contradicted Ma.M.'s story. Thus, in contrast to Lacy's theory about Ma.M., some of the evidence excluded actually showed that the siblings did not follow Ma.M.'s lead when she claimed abuse. And Lacy does not point to anywhere else in the record where it can even be inferred that the other children were simply repeating lies that Ma.M. told them.
In arguing that he should have been permitted to call Ma.M. as a witness and/or ask Moore what Ma.M. told her, Lacy also maintains that Moore based her investigation of the children on what Ma.M. told her. To support this claim, Lacy points out that Moore often asked the children leading questions, implying that abuse occurred. Here, Lacy suggests that the only reason to explain Moore's approach is that she was relying on what Ma.M. had told her occurred. We determine that Lacy's argument is speculative and is not supported by the record. (See People v. Mehserle, supra, 206 Cal.App.4th at p. 1154; People v. Eid, supra, 31 Cal.App.4th at pp. 126-127.)
Although Moore talked to all seven children, it was not established in what order she interviewed the children. Thus, it is unclear that Ma.M. was the starting point of Moore's investigation and that Moore based her leading questions on what Ma.M. told her. Also, during his examination of Moore, Lacy's counsel pointed out that Moore asked some leading questions to three of the children, but he never asked her why she did so. However, on appeal, he asks us to assume that Moore was questioning the children based on what Ma.M. told her. Without additional support in the record, we would have little basis to reach such a conclusion.
Finally, the fact that when Moore asked Me.M. about being sexually abused by Lacy, she referred to Ma.M. or told Moore to ask Ma.M. does not persuade us that the court abused its discretion by not allowing Lacy to call Ma.M. as a witness. As Moore indicated, Me.M. was reluctant to discuss any sexual abuse. In response to being asked about it, she first said that she forgot. Then Me.M. tried to avoid talking about it by referring Moore to Ma.M. Eventually, Me.M. told Moore that Lacy had kissed her on her privates. We do not see how this exchange shows that Ma.M. had told Me.M. what to say. Instead, the exchange between Moore and Me.M. shows a young girl who does not want to talk about an embarrassing and traumatic topic. Further, Moore questioned Me.M. to find out from Me.M. what had happened to her. There is no indication in the record that Moore was relying on anything that Ma.M. told her about Me.M.
Also, we observe that Lacy's counsel cross-examined Me.M. and Moore, and in doing so, he impeached Me.M. based upon what she told Moore. Through his examination of Moore, Moore admitted that Me.M. told her that Lacy kissed her vagina while they were in the girls' bedroom. However, defense counsel also got Moore to divulge that Me.M. later, during the same interview, reported that Lacy kissed her vagina while they were in a bathroom. Further, during closing argument, Lacy's counsel reminded the jury of this inconsistency and noted that, at trial, Me.M. testified that Lacy kissed her vagina while in the living room. Thus, despite not being permitted to call Ma.M., Lacy's counsel impeached Me.M. at trial and argued in closing that these inconsistencies should raise reasonable doubt as to whether Lacy ever sexually abused Me.M.
While testifying at trial, Me.M. at first stated that she did not remember in what room Lacy kissed her vagina. Later, she testified that she thought it occurred in the living room. However, she admitted that she remembered Lacy kissing her vagina, but she did not "exactly" remember in what room it occurred.
Again, it is unclear from the offers of proof Lacy presented at trial how Ma.M. would have been able to impeach Me.M.
In summary, although the court provided Lacy with plenty of opportunities to provide an offer of proof as to why Ma.M. should be called as a witness, the court determined that Lacy had not carried his burden of proof in showing that Ma.M. had influenced her siblings to fabricate sexual abuse claims against Lacy. On the record before us, we cannot conclude that the trial court's finding on this issue was arbitrary, capricious, or patently absurd, which resulted in a manifest miscarriage of justice. (See People v. Geier, supra, 41 Cal.4th at p. 585.)
After determining that the court did not abuse its discretion in finding that Lacy could not call Ma.M. as a witness or ask Moore what Ma.M. told her, we next turn to Lacy's argument that the court erred in concluding he could not call Ma.M. to impeach her.
"A trial court has inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration of justice. (See, e.g., § 1044; Evid. Code, § 765; [citations].)" (People v. Cox (1991) 53 Cal.3d 618, 700.) The trial court has broad discretion under Evidence Code section 765 to exercise control over interrogation of witnesses and protect them from undue harassment or embarrassment. (People v. Tafoya (2007) 42 Cal.4th 147, 175; People v. Chenault (2014) 227 Cal.App.4th 1503, 1514; People v. Spence (2012) 212 Cal.App.4th 478, 517.) "The state's interest in safeguarding the physical and psychological well-being of a minor or victim of sexual abuse can be a compelling one." (People v. Patten (1992) 9 Cal.App.4th 1718, 1726.) Further, regarding witnesses under the age of 14, Evidence Code section 765, subdivision (b) requires the trial court to "take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions." On appeal, we apply the abuse of discretion standard in reviewing a trial court's exercise of its authority under Evidence Code section 765. (Tafoya, supra, at p. 175.)
Here, we find the court properly exercised its discretion under Evidence Code section 765, subdivision (b). The prosecutor elected not to call Ma.M. as a witness. He dismissed all counts involving her. Having not persuaded the trial court that Ma.M. could impeach the other children, the only other purpose for Lacy calling Ma.M. as a witness at trial would be to show the jury that she was untruthful. The court was well within its discretion to determine that such purpose would only subject Ma.M. to undue harassment and embarrassment. The prosecution offered no evidence from Ma.M. regarding what she claimed occurred at Appellants' residence. And the prosecution dismissed all counts associated with Ma.M., including four counts against Lacy that could have resulted in four life sentences. Simply put, Lacy calling Ma.M. as a witness to prove that she was not credible and previously lied about claims of physical abuse against a third party, would have no purpose but to embarrass and/or harass her. The court therefore did not abuse its discretion in prohibiting Lacy from calling Lacy as a witness just to impeach her.
Because the prosecution dismissed all counts involving Lacy, the trial court's determination that Lacy could not call Ma.M. as a witness just to impeach her also did not constitute an abuse of discretion under Evidence Code section 352. The probative value of Ma.M.'s testimony as to her complaints of physical abuse against a third party as well as her claims of sexual abuse against Lacy would be substantially outweighed by an undue consumption of time as well as a confusion of issues. (See Evid. Code, § 352.) In addition, as the court did not accept Lacy's offer of proof, the probative value of Ma.M.'s testimony also would be substantially outweighed by the prejudice of her testimony because it was not established that Ma.M. had any influence on what her other siblings told Moore or testified to at trial.
We do not reach Lacy's claim that error by the trial court in prohibiting Lacy from calling Ma.M. as a witness as well as asking Moore about what Ma.M. told her constituted a violation of various constitutional rights because we have determined that the trial court did not abuse its discretion in prohibiting this evidence. (See People v. Catlin (2001) 26 Cal.4th 81, 133, fn. 12; People v. Hall (1986) 41 Cal.3d 826, 834.)
II
JUDICIAL AND PROSECUTORIAL MISCONDUCT
Regarding the trial court's ruling forbidding Lacy to call Ma.M. as a witness and question Moore about what Ma.M. told her, Lacy also argues the trial court committed judicial misconduct and the prosecutor committed prosecutorial misconduct. Specifically, Lacy maintains this misconduct occurred because the prosecution engaged in an ex parte discussion on January 8, 2016, when Lacy's counsel did not appear in court because of a death in the family. It is clear from the record that the trial court and the prosecutor engaged in an "informal discussion" as described by the trial court. The informal discussion was not reported by the court reporter. In addition, although it appears that McLean-Lacy's trial counsel was present in court on January 8, 2016, there is no definitive indication in the record whether McLean-Lacy's trial counsel was present during the discussion between the trial court and the prosecutor.
Although Lacy's trial counsel was not present during the discussion between the court and the prosecutor, the court, for the record, noted the discussion occurred and asked the prosecutor to put on the record what was discussed. The prosecutor did so, indicating the fragile psychological condition of Ma.M. Also, in response to the court's questioning, the prosecutor indicated that he decided not to call Ma.M. to testify at trial predominately because of her mental state, thus requiring him to dismiss, among other offenses, four life counts against Lacy. Lacy's trial counsel did not object when he learned of the "informal discussion," and he did not object or ask for additional discussion regarding the prosecutor's summation of his discussion with the court.
The People maintain that Lacy's failure to object at trial forfeits his claims of judicial and prosecutorial misconduct here. We agree. "As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial." (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) A " '[d]efendant's failure to object at trial [about alleged judicial misconduct,] particularly where . . . such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal.' " (People v. Sanders (1995) 11 Cal.4th 475, 531.) Likewise, " ' "[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." ' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1238.)
However, review under the circumstances is not precluded when an objection could not have cured the harm caused by the alleged misconduct or when objecting would be futile. (People v. Sturm, supra, 37 Cal.4th at p. 1237; People v. Centeno (2014) 60 Cal.4th 659, 674.) Here, we are not persuaded that an objection to the informal discussion would have been futile or would not have cured any resulting prejudice. The trial court informed Lacy's counsel about the existence of the informal discussion during the hearing on Lacy's offer of proof that he should be able to call Ma.M. as a witness. The prosecutor fully reported the information he conveyed to the trial court about Ma.M.'s psychological state. Had Lacy's counsel objected to the discussion held in his absence, a further record could have been made on the topic. At that point, Lacy could have challenged the trial court, moved for a mistrial, sought removal of the judge, or, at the very least, by objecting, he would have provided the trial court an opportunity to clarify that his evidentiary ruling was not based on the informal discussion. Absent any objection, Lacy forfeited the judicial and prosecutorial misconduct claims.
To avoid forfeiture, Lacy argues that he was denied counsel at a critical stage of the proceedings and, alternatively, that trial counsel rendered ineffective assistance for failing to object to the informal discussion once he learned of it. We reject these contentions because we conclude Lacy was not prejudiced.
Under the Sixth Amendment of the United States, a defendant is entitled to be represented by counsel at all critical stages of the criminal proceedings. (People v. Stewart (1983) 145 Cal.App.3d 967, 972.) Assuming that Lacy was denied counsel at a critical stage, prejudice will be presumed where such a denial may have affected his substantial rights and "[o]nly the 'most compelling showing' to the contrary will suffice to overcome the presumption . . . ." (People v. Dagnino (1978) 80 Cal.App.3d 981, 989.) The standard for determining if reversal is required is whether the error was harmless beyond a reasonable doubt. (Id. at p. 988; People v. Knighten (1980) 105 Cal.App.3d 128, 133.)
Here, Lacy's trial counsel's absence from court was due to a death in his family. There is no indication in the record that anything related to this case, except the informal discussion, occurred during his absence. Moreover, on the next court day, the trial court informed Lacy's counsel that the informal discussion occurred and asked the prosecutor to put on the record what was discussed. Lacy's arguments asking to call Ma.M. as a witness or to examine Moore as to Ma.M.'s statements did not change after his counsel became aware of the informal discussion. Further, after being told of the substance of the informal discussion, Lacy's trial counsel had the opportunity to probe the information about Ma.M.'s psychological well-being. He did not do so.
More importantly, the substance of the informal discussion did not play a role in Lacy's trial counsel's inability to convince the court in his offer of proof that Ma.M. would impeach the other children. As we discussed above, the court provided Lacy's counsel with numerous opportunities to show how Ma.M. would impeach the other children. The court considered counsel's offers of proof, but was not persuaded. For example, the court asked Lacy's counsel to provide "something more specific as to how [Ma.M.] would impeach [Me.M.]." Counsel did not provide specifics, but instead, simply represented that Ma.M. "had an influence on the other girls and was the reason the other girls told the stories they did." The court remained unpersuaded, stating that it was "still waiting to hear more with respect to" how Ma.M. would impeach the other children. The court further noted that counsel had not "shown at all" how Ma.M. would "impeach the other girls." The court reiterated that the fact that Ma.M. could be shown to be untruthful would not impeach any of the children "unless [Lacy's counsel] can prove that they were untruthful or that they mimicked something that she had told them, and at this point I see it as being far afield from what your offer of proof is." Ultimately, the trial court did not "find a sufficient offer of proof to call [Ma.M.] as a witness at th[at] point in [Lacy's] defense." We see no connection between Lacy's counsel's insufficient offers of proof and what was discussed during the informal discussion. As such, there is no indication that the informal discussion prejudiced Lacy regarding his counsel's attempts to show Ma.M. could impeach the other children if she was permitted to testify at trial.
Likewise, we determine that Lacy was not prejudiced by the informal discussion regarding his argument that he should be allowed to call Ma.M. simply to impeach her. Lacy has not cogently argued how calling Ma.M. to show the jury she was not honest would have been relevant or otherwise help Lacy defend against the remaining offenses before the jury. Put differently, the fact that Ma.M. had lied about claims of physical abuse committed by her other foster parents had no bearing on the offenses involving the other children. Ma.M.'s past untruthfulness could not somehow impinge the other children's credibility. The only purpose of calling Ma.M. therefore would be to embarrass or harass her by proving that she lied on previous occasions. Ma.M.'s credibility, however, did not matter at trial. The prosecutor was not proceeding on any offenses involving her. As such, even if we were to disregard the prosecutor's representations about Ma.M.'s fragile psychological state, this situation seems to be precisely the type where the trial court has substantial discretion to limit Ma.M.'s testimony at trial or prohibit it altogether. Ma.M. is a minor and the questions Lacy sought to ask were entirely unnecessary. (See Evid. Code, § 765, subd. (b).)
As a threshold matter, we are concerned that calling Ma.M. simply to impeach her has no relevance in the instant matter. The prosecution dismissed all counts related to Ma.M., and did not offer any testimony for Ma.M. to establish the elements of any of the remaining claims. In this sense, we do not see the purpose of calling Ma.M. as a witness and then impeaching her when she has not testified as to any issue before the jury.
Under the circumstances and beyond a reasonable doubt, Lacy's substantial rights were not affected by trial counsel's unanticipated absence.
Further, to show trial counsel rendered ineffective assistance by failing to object once he learned of the information provided to the trial court in his absence, Lacy must establish that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, Lacy must affirmatively establish prejudice by showing "that 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." (Id. at p. 694.) "If 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.) For the same reasons that Lacy cannot show he was prejudiced by his trial counsel's absence during the informal discussion between the prosecutor and the trial court, Lacy cannot demonstrate prejudice as result of his trial counsel's failure to object.
Finally, even if we were to address Lacy's claim of judicial misconduct on the merits, we nonetheless would find that the court did not commit misconduct here.
A "[d]efendant has a due process right to an impartial trial judge under the state and federal Constitutions. [Citations.] The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case." (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) The California Code of Judicial Ethics sets forth ethical rules applicable to judges, and includes a rule that addresses ex parte communications: "A judge shall not initiate, permit, or consider ex parte communications, that is, any communications to or from the judge outside the presence of the parties concerning a pending . . . proceeding . . . except [listing situations inapplicable here]." (Cal. Code Jud. Ethics, canon 3B(7).) Further, "[i]f a judge receives an unauthorized ex parte communication, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond." (Cal. Code Jud. Ethics, canon 3B(7)(d).)
Even where the trial court engages in an ex parte communication with the prosecutor, "no case authority holds that a violation of a judicial ethical rule, per se, automatically requires reversal of the ensuing judgment." (People v. Thompson (2016) 1 Cal.5th 1043, 1100.) " ' "[O]ur role . . . is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial." ' " (People v. Abel (2012) 53 Cal.4th 891, 914.) This determination is made on "a case-by-case basis, examining the context of the court's comments and the circumstances under which they occurred. [Citation.] Thus, the propriety and prejudicial effect of a particular comment are judged by both its content and the circumstances surrounding it." (Ibid.)
Here, the trial court informed trial counsel of the informal discussion, the next court day, before ruling on whether Lacy could call Ma.M. as a witness and/or ask Moore about statements Ma.M. made to her. The prosecutor set forth, on the record, the information discussed during the informal discussion. At that point, Lacy's trial counsel could have discussed what the prosecutor disclosed or inquired further about it. He did not address the informal discussion whatsoever. Further, the trial court's ruling denying the defense request was not improperly influenced by the substance of the informal discussion. At the hearing, the trial court stated that Lacy's offer of proof lacked adequate foundation. Thus, the only other purpose advanced by Lacy to call Ma.M. as a witness was to attack her credibility. Although the court considered the information provided by the prosecutor during the informal discussion, as we set forth above, Lacy had the opportunity to object to that information and argue against it, and the court was well within its discretion, under Evidence Code section 765, subdivision (b), to prohibit Lacy from calling Ma.M. solely to impeach her.
The trial court also observed the potential harm to Lacy if he called Ma.M. as a witness and evidence was admitted that supported reinstatement of the charges against him, which at that point had been dropped by the prosecution. In this light, the court had grounds under Evidence Code section 352 to exclude Ma.M.'s testimony because its minimal probative value would be substantially outweighed by the substantial probability that its admission would confuse the issues or mislead the jury.
For these same reasons, no prejudice resulted from the prosecutor's conduct. (People v. Fields (1983) 35 Cal.3d 329, 363 [only prejudicial misconduct requires reversal].) "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534, 542; People v. Castillo (2008) 168 Cal.App.4th 364, 386.) If the prosecutorial misconduct renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct is harmless beyond a reasonable doubt. (Castillo, supra, at pp. 386-387, fn. 9.)
The prosecutor's informal discussion with the trial court was unfortunate and evidenced a lack of judgment; nevertheless, it was not so egregious to render Lacy's trial unfair, and it cannot be characterized as a deceptive or reprehensible method in an attempt to persuade the jury. (People v. Hill (1998) 17 Cal.4th 800, 819.) Again, it bears repeating, the trial court informed Lacy's trial counsel of the discussion and had the prosecutor put the substance of the discussion on the record. And, for the reasons stated above, the prosecutor's conduct did not render the trial fundamentally unfair.
Lacy relies on In re Hancock (1977) 67 Cal.App.3d 943 to support his claim that he was prejudiced by the informal discussion. That case, however, is factually distinguishable. There, the prosecutor made ex parte statements adverse to the defendant to the judge before sentencing. (Id. at p. 946.) The defendant in Hancock lacked the opportunity to object to the adverse statements since the statements were made outside of court, without the defendant's knowledge and without affording the defendant an opportunity to respond. (Id. at p. 948.) By contrast, here, the ex parte statements were made before a hearing concerning the admission of certain evidence and were disclosed to Lacy's trial counsel before any ruling, affording an opportunity for Lacy to respond. Moreover, Lacy's request to admit the evidence was denied by the trial court expressly because the offer of proof was inadequate, and the trial court did not abuse its discretion under Evidence Code sections 352 or 765 in prohibiting Lacy from calling Ma.M. as a witness simply to impeach her.
In sum, Lacy did not object to the ex parte informal discussion and had an opportunity to respond to the information received by the trial court before the trial court's ruling that denied Lacy's request to present Ma.M.'s testimony or cross-examine Moore on Ma.M.'s statements to her. As such, the conduct of the trial court and the prosecutor did not deny Lacy a fair trial.
Lacy also implies the prosecutor committed prejudicial misconduct by referring to a mystery witness during his rebuttal closing argument. Lacy argues the prosecutor's argument was improper because the prosecutor could not undercut Lacy's defense theory by arguing Lacy did not offer a witness whom the court ruled could not testify. However, Lacy did not object to the prosecution's rebuttal closing argument and ask for an admonition. Nor did he explain here why an admonition would not have cured the claimed harm. Thus, he has forfeited this challenge. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1328 ["[T]o preserve a claim of [prosecutorial] misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review."].) Further, in closing argument, Lacy's counsel focused on the many different versions of what happened and even mentioned that Ma.M. "initiated th[e] information to . . . Moore" and implied that Ma.M. was the cause of the inconsistencies. Therefore, the prosecutor's reference to a mystery witness was an appropriate response to defense counsel's closing where he implied Ma.M. had manufactured the other children's claims. (See People v. Mendibles (1988) 199 Cal.App.3d 1277, 1313.)
III
CUMULATIVE ERROR
Lacy contends the cumulative effect of the asserted errors rendered the trial so unfair as to violate his federal and state constitutional rights to due process warranting reversal of the judgment. Because we hold no errors exist or Lacy forfeited certain errors, this cumulative error argument necessarily fails. (People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative effect of errors when no error]; People v. Butler (2009) 46 Cal.4th 847, 885 [rejecting cumulative effect claim when court found "no substantial error in any respect"].)
IV
SECTION 654 AS TO MCLEAN-LACY'S SENTENCE
A. McLean-Lacy's Contention
McLean-Lacy argues the trial court erred by not suspending her sentence under count 14 pursuant to section 654. We agree.
B. Background
The jury convicted McLean-Lacy of seven counts of cruel and inhuman corporal punishment and injury resulting in a traumatic condition upon a child (§ 273d, subd. (a); counts 7, 11-13, 16-18); and four counts of child endangerment (§ 273a, subd. (a); counts 8, 9, 14, 19); and one count of torture (§ 206, count 10). The jury also found true that McLean-Lacy used a deadly weapon in the commission of counts 9, 13, and 14 within the meaning of sections 667 and 1192.7, subdivision (c). Counts 10 through 14 listed R.M. as the victim. Regarding the crimes involving R.M., the trial court sentenced McClean-Lacy to consecutive terms of one year four months for each count 11 through 14 and a consecutive term of seven years to life imprisonment for count 10.
During closing argument, the prosecutor explained to the jury the basis of each count charged against McLean-Lacy that involved R.M. First, the prosecutor argued to the jury that the factual basis of the crime of torture as charged in count 10 was the act of striking R.M. in the head with a blind rod. Next, the prosecutor argued that the factual basis of the crimes charged in counts 11, 12, and 13 was McLean-Lacy striking R.M. with a "clock-radio-telephone," a hanger, and a belt, all with enough force to leave scars. Finally, with respect to count 14, the prosecutor argued that the factual basis of the crime charged was either striking R.M. with the clock radio or the blind rod, and that the jury could "[p]ick one."
The second amended information did not indicate the specific act that constituted the charged crime.
C. Analysis
Section 654 proscribes multiple punishments for a single physical act, even where that act violates more than one provision of law. (People v. Correa (2012) 54 Cal.4th 331, 337; People v. Jones (2012) 54 Cal.4th 350, 358.) An "act" under section 654 can include an indivisible course of conduct, provided all the offenses were incident to a single objective. (Correa, supra, at pp. 335-336.) But if the defendant entertained multiple, independent objectives, multiple punishment is proper. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
Where section 654 applies, it is error to impose concurrent sentences on two counts because to do so implies a finding of multiple intents or objectives (People v. Alford (2010) 180 Cal.App.4th 1463, 1468) and because the defendant is deemed to be subjected to the terms of both sentences, even though served simultaneously. (People v. Jones, supra, 54 Cal.4th at p. 353.) Instead, the trial court should impose sentence on each count, but stay execution of sentence on the conviction to which section 654 applies. (Ibid.)
Whether section 654 applies is a question of fact, as to which the trial court has broad discretion in making its determination. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.) The court's findings of fact, express or implied, must be upheld if supported by substantial evidence. (People v. Evers (1992) 10 Cal.App.4th 588, 604.) However, if no such evidence exists and the sentence violates section 654, it is unauthorized and must be corrected on appeal even though no objection was raised below. (People v. Hester (2000) 22 Cal.4th 290, 294-295.)
Where there is a basis for identifying the specific factual basis for a verdict, the trial court cannot find otherwise in applying section 654. (People v. Siko (1988) 45 Cal.3d 820, 825-826 (Siko).) In Siko, the court would not allow the People to posit an alternative factual basis (based on the evidence at trial) for two general molestation convictions other than the two specific sex acts for which the jury had also convicted the defendant of specific offenses, and therefore held section 654 precluded punishment for the generic offenses. (Ibid.) The charging instrument and verdict both had specified the lewd conduct as consisting of the two specific sex offenses, and neither closing argument nor the instructions suggested any other basis for the molestation counts. (Ibid.)
Siko, supra, 45 Cal.3d 820, however, was distinguished in People v. McCoy (2012) 208 Cal.App.4th 1333 (McCoy). In that case, a defendant with a history of domestic violence attacked the mother of his children in her apartment. He was convicted of both burglary and violation of a protective order. Based on the evidence, the defendant either (1) entered the residence, fled when the police arrived, and later returned to assault the victim, or (2) he was still somewhere inside the apartment when the victim spoke with police at the front door. (Id. at p. 1337.) On appeal, the defendant argued the jury did not make a specific factual finding whether he entered the residence twice and, if so, which arrival was the basis for the verdict on violation of the protective order. (Id. at p. 1338.) The defendant argued the trial court therefore could not make a finding independently that there were two arrivals and premise the defendant's punishment on one arrival being the violation of the protective order and the other arrival being the burglary. (Ibid.) The court rejected the defendant's argument, holding that, in the absence of some circumstance foreclosing its sentencing discretion, the trial court could base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. (McCoy, supra, at p. 1340.) Noting the case law holding that a trial court could even rely on facts underlying verdicts of acquittal in making sentencing choices, the court reasoned that there was no "principled manner in which to distinguish between countenancing the use of facts that a jury rejected and the use of facts that may or may not have been the basis for a verdict." (Ibid.; italics omitted.)
Here, unlike in McCoy, supra, 208 Cal.App.4th 1333, the way the case was charged and tried and the prosecutor's argument prevented the trial court from considering all the evidence adduced at trial to make its sentencing decision under section 654. As to count 14, the prosecutor explicitly told the jurors they had two acts upon which to base a conviction: (1) McLean-Lacy threw a clock radio at R.M. or (2) McLean-Lacy hit R.M. in the head with a blind rod. Those were the only two "options" the prosecutor presented to the jury during closing argument. Indeed, the prosecutor ended his discussion of the evidence supporting count 14 by simply imploring the jury to "[p]ick one."
Further, the trial court instructed the jury on the law of unanimity in relation to all charged offenses, except count 1. The trial court told the jury the prosecutor had presented evidence of more than one act in his attempt to prove the charged act. The court's instructions reflected the jury had to agree McLean-Lacy committed at least one of the acts to find her guilty of count 14. (CALCRIM No. 3500.)
In addition, the prosecutor told the jury that three incidents satisfied the elements for counts 11, 12, and 13. These incidents were McLean-Lacy hitting R.M. with the clock radio, a hanger, and a belt. The jury convicted McLean-Lacy under these three counts. Thus, if the jury selected the act of throwing the clock radio at R.M.'s head to convict McLean-Lacy under count 14, then it is apparent from the record that the jury used that same act to convict McLean-Lacy under counts 11, 12, or 13.
Also, our analysis does not change if we assume the jury convicted McLean-Lacy under count 14 based on her hitting R.M. with the blind rod. The prosecutor told the jury that McLean-Lacy striking R.M. with the blind rod supported a conviction under count 10 (torture). The prosecutor did not argue that any other act supported a torture conviction as to McClean-Lacy. Thus, if the jury relied on the use of the blind rod to convict McLean-Lacy under count 14, we know it used the same act to convict McLean-Lacy for torture.
Here, the People point toward other acts committed by McLean-Lacy on R.M. that could have been the basis of her conviction under count 14. For example, the People cite to the record where R.M. testified that McLean-Lacy beat him with a pole-type piece of a vacuum cleaner. In addition, the People point out that R.M. testified that McLean-Lacy threw a ketchup bottle at him and hit him in the head. We agree that these two acts might have supported a conviction under count 14. However, the prosecutor made no such argument. In fact, the People do not point to any portion of the prosecutor's closing argument where he referred to the vacuum cleaner piece or ketchup bottle incidents. Nor is this a situation where, during closing argument, the prosecutor generally referred to what McLean-Lacy did to R.M. or offered a laundry list of acts that could have supported a conviction under count 14. Instead, the prosecutor gave the jury two options and told it to pick one. These same two options were the very same acts that supported the conviction under count 10 and counts 11, 12, or 13. As such, we find there is a clear basis for identifying the factual basis for the verdict that foreclosed the trial court from considering all available evidence in making its decision under section 654. (See Siko, supra, 45 Cal.3d at pp. 825-826.) Therefore, the trial court erred in failing to stay McLean-Lacy's sentence under count 14.
DISPOSITION
The judgment as to Lacy is affirmed. The judgment as to McLean-Lacy is modified to stay the punishment on count 14, child endangerment violation of section 273a, subdivision (a). The judgment as to McLean-Lacy is affirmed as modified. The trial court is directed to prepare an amended abstract of judgment reflecting the judgment as modified to McLean-Lacy and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.