Opinion
A144859
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. LAFKAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51401579)
Defendant Michael Lafkas was convicted by a jury of committing multiple sexual offenses against several minor girls. He appeals his two convictions under Penal Code section 288, subdivision (a) and his one conviction under section 288, subdivision (c)(1) for committing lewd acts on his minor stepdaughter, Jane Doe (Jane). He argues these convictions resulted from incorrect and cumulatively prejudicial evidentiary rulings and that one of them was not supported by substantial evidence. He further contends the trial court erred by declining to suspend the criminal proceedings to hold a competency hearing. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Lafkas was charged with committing a forcible lewd act upon a child under 14 (§ 288, subd. (b)(1), count 1); committing a lewd act upon a child under 14 (§ 288, subd. (a), count 2); two counts of oral copulation of a minor under 18 (§ 288a, subd. (b)(1), counts 3 and 11); two counts of soliciting a minor to use or sell controlled substances (Health & Safety Code § 11353, counts 4 and 10); sexual penetration of a minor under 18 (§ 289, subd. (h), count 5); possession or control of matter depicting a person under 18 in sexual conduct (§ 311.11, subd. (a), count 6); two counts of committing lewd acts upon a child under 14 (§ 288, subd. (a), counts 7 and 8); and committing a lewd act upon a child 14-15 (§ 288, subd. (c)(1), count 9). He was tried before a jury over the course of five weeks, during which 16 witnesses testified, including his four alleged victims. The jury convicted Lafkas of 8 of the 11 charges, including counts 7, 8, and 9, the charges related to Jane which Lafkas now appeals. Our background discussion focuses on the witnesses, facts, and issues relevant to Lafkas's contentions on appeal.
Jane
Jane, who was 26 at the time of the trial, was born on August 9, 1988. When she was two years old, her mother (E.) met Lafkas. When Jane was around 10 or 11, her mother and Lafkas married.
During Jane's middle school years, Lafkas was unemployed, so Jane spent a lot of time with him because he would be home when she returned from school. This was a time of "confusion and chaos" in Jane's relationship with Lafkas. She described being "so close" to Lafkas and "shar[ing] all of these intimate things together" one minute and then as soon as her mother came home, she "was a piece of shit" and "worthless," a "burden" whom Lafkas was "stuck watching . . . all day."
When Jane was 12, Lafkas began to comment on the size of her breasts. When she was 12 or 13, Lafkas asked to feel them. She let him, and he touched her breasts for "like ten seconds or so," commenting that they were "nice and firm," "perky," or "really big." As he touched her, he also told her she was attractive. Such touching was not a daily occurrence but happened "more frequently than not" and "multiple times monthly."
During this time, Jane and Lafkas also engaged in—and Jane sometimes initiated—"nipple fights" which involved twisting each other's nipples and "pick[ing] and prod[ding]" at each other." Occasionally, he spanked her as she walked by or when she was bent over, grabbed her underwear, and tickled her thighs. Sometimes, upon his request, she sat on his lap and gave him hugs and kisses. Asked about how often these contacts with Lafkas happened, she said "it was a constant thing. You know, some days it would be the boobs. Some days it would just be the hugging. Some days it would just be the tickling."
While he "touched [her] above clothing inappropriately," Jane testified Lafkas "never inappropriately removed any [of her] clothing" and "never tried to go beyond the clothing." He also never had sex with Jane, or tried to force her to have sex with him.
In addition, when she was around 13 or 14, Lafkas showed Jane pornography. Twice, Jane found Lafkas masturbating while watching pornography. One of the encounters occurred after he called her to come home.
Lafkas also told Jane he thought she was "sexy and . . . hot" and that "guys should totally want to be with [her]." He told her he would love to be with her and that if he were her age, they could be together. Asked if she remembered telling the police that Lafkas had once said, "If he was your age, he would fuck you so hard," she recalled Lafkas said that to her when she was 14 when they were drinking together while her mother was away.
In high school, she realized that Lafkas's conduct towards her and their touching and physical interactions were inappropriate, and she began to believe that Lafkas desired her sexually. Her physical contact with him became uncomfortable for her. She viewed their relationship as "just very dysfunctional . . . as far as . . . what a child should have with a father." She avoided home so as to not be alone with Lafkas. At that point, when she was 15, she tried to stop the inappropriate behavior and told her mother.
J.
J., Jane's first cousin, lived with Jane and her family from the summer of 2003 (when Jane turned 15) to the summer of 2004. During the police investigation a couple years prior to trial, she told police that Lafkas routinely yelled at and berated Jane and had called her a "waste of air." In her opinion, Lafkas became "verbally abusive" to Jane when she did something wrong. To her, "it felt like it was out of control . . . it wasn't normal." Jane talked to J. about Jane's interactions with her stepfather but J. never "really dug deep" or delved into the details about the issues raised by her cousin. But, J. remembered that Jane told her Lafkas "touched her breasts, that he would spank her butt. . . . And she would say, Oh, it's so annoying, and kind of laugh it off." She also recounted a time when Jane told her Lafkas commented enthusiastically that Jane wore a low-cut shirt that showed off her cleavage.
E.
E., Jane's mother, testified as a defense witness. In Jane's pre-teen and early teen years, the relationship between Jane and Lafkas was "full of dysfunction and inappropriateness." Around that time, their relationship was "a constant battle . . . . They constantly butt[ed] heads." E., who was frequently out of the house when these disputes began, was left to mediate between her daughter and husband when she got home. At some point during these years, E. learned that Lafkas had drank and watched pornography with Jane when E. was not around. When Jane was 15, she complained to E. about sexually inappropriate things Lafkas had done to her. Jane described it to E. as "like poking her, touching her around her breasts, or spanking her on her bottom." E. was not told of any other type of improper touching done by Lafkas. Never had she been told by her daughter that Lafkas had put his hands all over her breasts. Defense counsel asked E. if she found her daughter to be "fully honest," but E. never responded as the trial court sustained the prosecutor's objection to the question.
Lafkas
Lafkas, born on August 19, 1966, testified in his defense. Since Jane was two, he "had been her only father, her only person she would call dad." They were "two peas in a pod" and "best friends." He was the "cool dad" who Jane could open up to and talk freely with, which she could not do with her mother.
In the pre-teen years, however, their relationship began to change. When Jane was 12, she told Lafkas of a sexual experience that shocked him. When Jane was 13, Lafkas came across Jane's journal in which she had written, "Oh yeah, by the way, I think my dad wants to fuck me . . . . Oh, well." After seeing that, Lafkas decided to set boundaries. Their relationship changed immediately and dramatically.
He acknowledged he had touched Jane's breasts during these years. He explained that before she developed, they wrestled constantly and that sometimes Jane initiated the wrestling. He said Jane "got a great deal of joy out of grabbing his nipples and twisting them off his chest." Then, one day he reciprocated. She told him he could not touch her like that, and he said the same. That was the last occasion he ever touched Jane's breasts in any way. He denied ever "poking" or otherwise touching her breasts and had no recollection of Jane ever telling her mother that he touched her breasts. He denied ever commenting on Jane's breasts and stated there was "never a sexual content or sexual nature about her breasts." He did not think he ever spanked or patted Jane on her behind during these years, as she had described. However, he and E. "smack[ed] each other on their butts a lot," so if he had done the same to Jane, it was not with lewd intent and was in the course of play wrestling. He denied ever grabbing Jane's underwear. He stated he never touched Jane at any time or in any way with a lewd intent. He also said he never received any kind of sexual pleasure or stimulation by touching her.
Lafkas denied that Jane ever saw him masturbating or that he ever called her home from school to watch him. He denied ever being in the same room as Jane when he watched pornography in the house. He said on "one blue moon" occasion, he shared an alcoholic drink with Jane when she was 15 or 16.
The jury convicted Lafkas of the two charges of lewd conduct upon his stepdaughter when she was under 14 (counts 7 and 8) and one charge of lewd conduct upon her when she was 14 or 15 (count 9). These convictions, as well as the trial court's decision to deny him a competency hearing following his convictions, are the focus of Lafkas's appeal.
DISCUSSION
A. Evidentiary Rulings (Counts 7 , 8 , 9)
Lafkas argues the trial court committed prejudicial error erred on two of its evidentiary rulings that affected the three counts involving Jane.
We review a trial court's ruling on the " ' "admissibility of evidence for abuse of discretion." ' [Citation.]" (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332 (Saxena).) Abuse of discretion occurs only where there is a clear showing that the ruling exceeded the bounds of reason, given the circumstances. (Ibid.) Even if we determine the evidentiary ruling was in error, we will not reverse the judgment on the basis of such an evidentiary ruling unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Saxena, supra, 159 Cal.App.4th at p. 332.) That is, the party challenging the ruling must demonstrate that it is reasonably probable a more favorable result " ' "would have been reached absent the error. [Citations.]" [Citation.]' [Citations.]" (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)
Lafkas first challenges the trial court's admission of J.'s testimony that Jane told her in 2003 or 2004 that Lafkas had touched her breasts and spanked her. Lafkas objected to this testimony as hearsay. The court recalled that defense counsel's opening statement and the manner in which Jane had been questioned "tended to imply a bias." The court allowed J.'s hearsay testimony as a prior consistent statement after reviewing authority.
The court read the following from "Justice Simons' book: 'A prior consistent statement is also admissible if offered after an express or implied charge has been made that the testimony is recently fabricated or influence by bias or other improper motive, and the consistent statement was made before the bias or improper motive arose.' " The excerpted statement can be found in Justice Mark B. Simons, California Evidence Manual § 2:43 (2015 ed.) --------
Lafkas also challenges the trial court's sustaining of the prosecutor's objection when his lawyer asked E. about Jane's character. Defense counsel asked E.: "Did you find that (Jane) was fully honest? [¶] Your experience with (Jane), was she honest?" The prosecutor objected on the basis the questions delved into improper character evidence, and the court sustained the objection. At a subsequent hearing on the issue, the court explained "certain foundational requirements . . . have to be met before you bring in character evidence" and found Lafkas had not met such requirements with respect to E.'s testimony on Jane's character.
We need not decide whether either ruling was erroneous because neither was prejudicial. Even if both rulings were incorrect, such errors were harmless. Lafkas cannot demonstrate it is reasonably probable that he would have obtained a more favorable verdict had the trial court decided differently on either or both evidentiary rulings.
First, J.'s testimony that Jane told her Lafkas touched her breasts and spanked her was hardly the only corroborating evidence of Lafkas's improper touching of Jane that the jury had to convict. While denying any lewd intent, Lafkas himself acknowledged he touched Jane's breasts and was equivocal as to whether he spanked her. Without any objection from Lafkas, E.—a defense witness—offered essentially the same testimony as J., namely, that Jane told her Lafkas touched her breasts and spanked her. In light of this evidence, as well as Jane's testimony of Lafkas inappropriately touching her breasts and spanking her, J.'s additional testimony that Jane told her he did so was unlikely to have any added material impact on the jury's determinations.
Nor can Lafkas demonstrate a more favorable outcome would have resulted had the trial court allowed E. to opine on her daughter's character. On multiple occasions, E. testified about when and what Jane told her concerning Lafkas's sexually inappropriate touching. At no point did E. express disbelief as to the veracity of Jane's reports. Rather, she said "[A]t the time I recognized them . . . I knew they were inappropriate." Her response to Jane's disclosures also did not reflect doubt. The family went to counseling in an effort to "deal with the situations as appropriately as possible." Moreover, since Jane testified and was subject to cross-examination at trial, the jurors were able to evaluate her credibility for themselves. Defense counsel also impugned Jane's credibility before the jury by arguing she had been impeached by other witnesses. On this record, it is not reasonable to conclude the jury would have reached a different conclusion had E. been allowed to opine about Jane's honesty or even described her as dishonest.
Lafkas asserts that the trial court's erroneous evidentiary rulings prejudicially violated his fundamental rights to due process and a fair trial, whether the errors are viewed alone or cumulatively. Because we have found the two possible errors each to be harmless, Lafkas's contention that he prejudicially suffered from the cumulative effects of such errors fails. (See People v. Thomas (2011) 51 Cal.4th 449, 508.)
B. Substantial Evidence (Count 9)
Lafkas challenges the sufficiency of the evidence to support his conviction under section 288, subdivision (c)(1) for committing lewd acts on Jane when she was 14 or 15. He contends Jane never testified that when she was 14, Lafkas touched her lewdly and there is no other evidence that he did so when she was that age.
When sufficiency of the evidence is challenged, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 562.) If there is substantial evidence to support the verdict, "we must accord due deference to the trier of fact." (People v. Jones (1990) 51 Cal.3d 294, 314.) As such, we will not "reweigh any of the evidence" and we will "draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.) The verdict must be upheld "if, on the basis of the evidence presented, the jury's determination is reasonable" (People v. Garrison (1989) 47 Cal.3d 746, 774) and "may not be overturned when the circumstances might also reasonably support a contrary finding." (People v. Lewis (2001) 25 Cal.4th 610, 644).
Section 288 provides, "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child . . . with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (§ 288, subd. (a).) Where "the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, [the person] . . . shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year." (§ 288, subd. (c)(1).)
Substantial evidence supports the jury's conviction on count 9. For this count, the information alleged Lafkas committed lewd acts on Jane between August 8, 2002, through August 8, 2003, which is when Jane was 14. Jane testified Lafkas touched her when she was 12 or 13. Notably and apparently on the basis of such testimony, Lafkas does not challenge his convictions under counts 7 and 8 for lewd conduct on Jane when she was under 14. But Jane never asserts that Lafkas's improper touching stopped when she turned 14. Rather, she described his improper conduct as their "family dynamic . . . a constant thing . . . . [S]ome days it would be the boobs. Some days it would just be the hugging. Some days it would just be the tickling." She testified that when she was between 14 and 15, she came to the realization that her relationship with her stepfather was inappropriate and began to feel uncomfortable with their physical contact. Further, she stated that when she was 15, she told her mother about Lafkas's inappropriate touching in order to stop it. On the basis of this testimony, a jury could reasonably infer that the inappropriate touching that began when she was 12 continued until Jane attempted to put a stop to it when she was 15. This constitutes sufficient evidence to support the jury's conviction.
C. Penal Code Section 1368 Competency Hearing
Lastly, Lafkas argues that because there was "a significant amount of evidence . . . that [he] was not competent," the trial court abused its discretion when it declined to suspend the criminal proceedings following the verdict and before sentencing to hold a competency hearing pursuant to section 1368.
A criminal defendant "shall be presumed . . . mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent." (§ 1369, subd. (f).) If "a doubt arises in the mind of the judge as to the mental competence of the defendant" at any point during the criminal proceedings, the court must declare a doubt as to the defendant's competence and suspend proceedings until a hearing can be conducted to determine if the defendant is mentally competent. (§ 1368, subd. (a); People v. Stankewitz (1982) 32 Cal.3d 80, 91-92.) When a trial court is presented with "substantial evidence of incompetence" of a criminal defendant, "due process requires that [it] conduct a full competency hearing." (People v. Jones (1991) 53 Cal.3d 1115, 1152.) Accordingly, "[a] trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial." (People v. Rogers (2006) 39 Cal.4th 826, 847.) " ' "An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." ' " (People v. Marshall (1997) 15 Cal.4th 1, 33.)
Here, following his convictions and before sentencing, Lafkas moved to continue sentencing. Attached to his motion was a declaration from Lafkas's trial counsel stating that he had spoken with psychologist Dr. Charles Flinton who had recently interviewed Lafkas. Based upon the interview, counsel "reached the tentative conclusion, subject to additional communications with Dr. Flinton that [Lafkas was] not competent to proceed pursuant to Penal Code § 1368." A few days later, defense counsel submitted additional declarations. Counsel again asserted his belief that "Lafkas is or may be mentally incompetent" and requested the court order a competency hearing. He stated that during the past year of representing Lafkas, "meaningful communication . . . has been virtually nonexistent." The motion attached as an exhibit an email from Dr. Flinton stating that his psychological evaluation of Lafkas was "hampered by Mr. Lafkas's lack of cooperation. He was extremely difficult to interview. He repeatedly needed to be redirected to the questions being asked of him because of his tendency to ramble-on impulsively and tangentially . . . . Overall, he presented as an uncooperative, impulsive, and angry man." Dr. Flinton added that he had performed a "brief neurological screen that did not identify any impairment" but believed his presentation suggested he may have suffered "some impairment (front lobe damage) from the repeated head injuries that he had incurred." Lafkas had testified to a series of car accidents over the years, including a "severe multiple trauma car accident" in 1986, a motorcycle accident in 2003, and another accident in 2008 for which he had to go to the intensive care unit.
The trial court denied the request for a competency hearing. Noting the start of trial approximately two months earlier, the court stated, "I have observed Mr. Lafkas throughout that time. In fact, Mr. Lafkas got up and took the stand for a substantial period of time, and I saw no evidence that he was unable to understand the proceedings or unable to assist counsel." The trial court denied the request to proceed under section 1368 "or even give more time for further testing," having found no substantial evidence as required by law.
On this record, we see no evidence of Lafkas's incompetence that would compel us not to defer to the trial court's decision. "A defendant is deemed competent to stand trial only if he ' "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" ' and ' "has a rational as well as factual understanding of the proceedings against him." ' " (People v. Ary (2011) 51 Cal.4th 510, 517.) Trial counsel's opinion that Lafkas was mentally incompetent was not substantial evidence, especially since the opinion was not based on Lafkas's inability (rather than unwillingness) to cooperate with counsel or his inability to understand the proceedings against him. (See Cal. Rules of Court, rule 4.130(b)(2); See also People v. Lewis (2008) 43 Cal.4th 415, 526, overruled on other grounds by People v. Black (2014) 58 Cal.4th 912, 919.) While Dr. Flinton's email raised concerns about Lafkas's willingness to cooperate, none of his observations raised questions about Lafkas's ability to understand the criminal proceedings nor did he reach any conclusion on Lafkas's competency. (Id. at p. 525.) Most importantly, based on the court's observation of Lafkas during a five-week trial, the court concluded Lafkas was able to assist counsel and understand the proceedings against him. Based on our review of the record, especially Lafkas's nearly two days of testimony which included defensive responses to the prosecutor, we have no reason to disagree with the trial court's decision to deny section 1368 proceedings.
Lafkas's reliance on People v. Murdoch (2011) 194 Cal.App.4th 230 is misplaced. In Murdoch, two doctors appointed to evaluate the defendant found he suffered from a severe mental illness, but was competent when taking his prescribed medications. Both doctors opined that because he was not taking his medications, if he continued to refuse, he could become incompetent. (Id. at p. 233.) Shortly before the trial began, the defendant informed the court his defense would be that the prosecution witnesses were not human. (Id. at pp. 233-234.) At trial, Murdoch cross-examined only one witness and asked a single question regarding her ability to shrug her shoulders, based on his theory she was a non-human, angelic being who lacked shoulder blades. (Id. at p. 235.) The appellate court concluded the expert evidence and defendant's behavior should have prompted the trial court to raise a doubt about the defendant's competence. (Id. at p. 238.) Here there was no psychological or psychiatric determination that Lafkas was incompetent or that he required medication to remain competent. Nor did Lafkas display the type of delusional or irrational thinking that demonstrated Murdoch's loss of competence. The trial court did not err in failing to declare a doubt as to Lafkas's competency or institute competency proceedings.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.