Opinion
F074347
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ANDREW MAGNANI, Defendant and Appellant.
The Rosenfeld Law Firm, Kinsey R. Reynolds, and Kenneth L. Rosenfeld for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1444291)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas D. Zeff, Judge. The Rosenfeld Law Firm, Kinsey R. Reynolds, and Kenneth L. Rosenfeld for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
At the conclusion of a jury trial on March 17, 2016, defendant Christopher Andrew Magnani was convicted of one count of continuous sexual abuse of a minor under 14 years of age (Pen. Code, § 288.5, subd. (a)). Defendant filed a motion for new trial on the ground he had newly discovered evidence. The trial court denied the motion on August 16, 2016. On September 6, 2016, the trial court sentenced defendant to prison for a term of six years, with 224 days of custody credits.
Unless otherwise designated, all statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred in denying his motion for a new trial because of newly discovered evidence. Defendant further contends his counsel was ineffective, the trial court improperly placed the burden on defendant to show his counsel was ineffective, and the trial court's finding that defendant suffered no prejudice due to his counsel's alleged substandard representation was unreasonable. We affirm the judgment.
FACTS AND PROCEEDINGS
In Limine Motions
The People filed a supplemental motion in limine noticing defendant the People intended to call Anthony Urquiza, Ph.D., as a rebuttal expert on child sexual abuse accommodation syndrome (CSAAS). During motions in limine, defense counsel sought to call a school official who would testify he did not see obvious emotional signs in the minor, Jane Doe, at school indicating she had been molested. The trial court was not inclined to admit this testimony. The court ultimately ruled the school official could testify concerning his observations of Jane Doe, but not as to his opinions or conclusions. The court further ruled the People would then be permitted to use Dr. Urquiza as a rebuttal witness.
Defense counsel sought to call a witness who would testify she had worked on cases involving 50 individuals who falsely reported they were rape victims. The witness had spent time with Jane Doe. The trial court ruled the defense witness could testify concerning her personal observations of Jane Doe, but could not testify concerning whether an assault took place. The court further ruled that once the defense witness testified, the People could call Dr. Urquiza to rebut defendant's witness with CSAAS testimony. Ultimately, defense counsel did not call the school official or the defense witness.
Trial Evidence
Jane Doe was born in February 2003. Her mother (Mother) dated defendant, who moved into the apartment with Jane Doe and her younger brother during the summer of 2009, just before Jane entered the first grade. Defendant is six feet four inches tall, weighs 210 pounds, and is a mixed martial arts fighter.
When defendant moved in with the family, Mother left the children with him five or six times a week while she worked. The first time defendant inappropriately touched Jane Doe, he came into her brother's bedroom and lay down on the bed with both children. Defendant told them to go to sleep. Jane's brother was already asleep. Defendant placed Jane's hand on his penis and said, "This is sex." Jane tried to sleep and did not remember what happened afterward. She was seven or eight years old at the time. While defendant was living with them, he touched Jane more than five times in her private area where she urinates from. This happened in the living room, twice in the bathroom, and once in Jane's bedroom. Defendant used his hands to touch Jane on the buttocks. Once, defendant touched Jane's private part with his mouth.
Jane Doe also explained defendant placed his penis into her buttocks. This happened more than five times. Jane said it hurt when defendant did this. Defendant also tried to put his penis into another part of Jane's body. Jane put her mouth on defendant's penis more than five times. The last time it happened, Jane was in the third grade. Jane's brother was at home during these incidents. When Jane orally copulated defendant, white stuff would come out and get on her stomach.
Once, Jane Doe's mother and brother went into a store while Jane stayed in the car with defendant. Jane put her mouth on defendant's penis after the others went in the store. On this occasion, Jane threw up. When Jane's mother returned to the car from the store, she remarked something "smell[ed] like throw up." Jane testified defendant told her not to tell anyone. Defendant threatened Jane's family if she told anyone about his conduct. Jane did not tell anyone what happened to her because she did not want anyone in her family to get hurt. Jane was afraid of defendant. When Jane was in third grade, she told her cousin, L.G., what defendant did to her.
On cross-examination, Jane Doe said that although she told her mother when she was hurt, she did not tell her mother about being sodomized even though it hurt. Jane waited for years to report defendant's sexual abuse of her. When Jane "ha[s] an attitude" or does something wrong, her mother spanks her. Jane was afraid of defendant, but she was also afraid of her mother because Jane did not feel close to her.
L.G. testified she had noticed Jane Doe looked afraid and as though something was bothering her. Jane told L.G. defendant made her do things that made Jane feel uncomfortable. Jane said defendant "made her suck his parts and he ... stuck his parts in her." L.G. told her grandmother because if she did not, "it would keep happening."
Mother said on one occasion when Jane Doe was about eight years old, Mother smelled something like vomit in the vehicle. Jane and defendant were the only two other people in the car. Defendant said he spilled something in the car. Although this explanation made no sense, Mother did not inquire further.
Mother learned of the allegations against defendant on February 9, 2012, after her sister sent her a text saying they needed to talk. Mother and her sister met in a park. A social worker and police officer Shaun Kelley also met Mother at the park. Defendant tried to call Mother at this time, but she did not want to answer after learning what he did. Mother ignored text messages from defendant asking her why the police were looking for him and for her to call him back.
Jane Doe was taken to a medical center to be examined. Officer Kelley questioned Jane, who told him defendant touched her on the chest 19 times, most recently the week before. Jane's lips were quivering as she responded to Kelley's questions. When asked if defendant had put anything into her mouth, Jane whispered to her mother that defendant had placed his penis and testicles into her mouth. Mother related to Kelley what Jane had told her.
The medical examination of Jane Doe showed no signs of physical injury. A pediatrician testified this was consistent with the passage of time between the examination and the last incident, which had been reported as a few weeks to a month previous. The forensic nurse who examined Jane said something went within the labium majora but not past the hymen.
After the examination, Officer Kelley attempted to locate defendant, going to his gym and calling his phone, without success. Kelley later discovered defendant had switched vehicles with his sister, and he began looking for the other vehicle. Kelley continued to look for defendant for several weeks without success.
Jane Doe was again questioned on February 15, 2012, at the Family Justice Center. Jane related she was five years old and her brother was three years old when defendant came into the family. Defendant was nice in the beginning, but this changed just before Jane entered the first or second grade. Defendant lay in bed reading a story to Jane and her brother at bedtime. After Jane's brother fell asleep, Jane thought she was holding defendant's hand but she was holding his testicles. Mother was in the other room and defendant whispered in Jane's ear, "This is sex." When subsequent incidents happened, Mother was always at work. Defendant also told Jane not to tell anyone because if she did, defendant would "hurt your mom if you tell." Defendant would make Jane suck his penis and his testicles until white stuff came out.
Jane Doe described to investigators the time defendant made her orally copulate him in the car while her mother was shopping, which caused Jane to vomit in the car. When Jane's mother returned to the car, she commented it smelled like someone threw up, but defendant denied it smelled that way. Jane did not know how many times defendant had his penis in her mouth, but it happened for years; it happened more than five times. Defendant placed his hands and testicles on Jane's buttocks and placed his penis inside them. This had been happening since Jane was in first or second grade.
Defendant twice put his mouth on Jane Doe's "pee pee," but had not done so for weeks or months. Defendant's penis did not fit in Jane's pee pee. When Jane sucked or rubbed defendant's penis, white stuff came out and he would tell her to get a towel. On three to five occasions, defendant took a picture of Jane while she orally copulated him. Jane said defendant still had the phone he used to take these pictures. After he was arrested, however, no inappropriate pictures were found on defendant's cell phone.
Motion for New Trial
Defendant's motion for new trial alleged there was new evidence that was reasonably probable to produce a different result at trial. The motion asserted two sisters, A.O. and S.F., who were 13 years old and 11 years old at the time of the motion, had not been questioned by defense counsel before trial. Defense counsel knew of these potential witnesses and had set appointments for them to be interviewed. A.O. and S.F. were defendant's nieces.
Defense counsel had listed A.O. and S.F. as potential witnesses to be called to testify at trial. Prior to the motion for new trial, defendant substituted his original trial counsel with new counsel, who pursued the motion for new trial.
According to their declarations, A.O. and S.F. frequently went to the apartment of Mother and were babysat by defendant. Both A.O. and S.F. stated Jane Doe would lie, particularly to get out of trouble. According to A.O., Jane once falsely blamed A.O. for something to avoid getting in trouble. A.O. stated in her declaration that Jane would give defendant an "attitude" and would do the opposite of what he said. Jane would tell A.O. defendant was mean, would become angry at him, and would threaten to tell her mother defendant was mean to her.
S.F. stated Jane did not like defendant because he would discipline her, and although she called him dad, she also said he was not her real dad and she did not have to listen to him. Both A.O. and S.F. stated Jane was afraid of getting in trouble with Mother.
Defendant's sister, C.F., was the mother of A.O. and S.F. In a declaration, C.F. stated defendant told her more than once that Mother would hit him, and defendant was afraid because Mother would threaten to call the police and blame him. C.F. stated she saw Mother hitting and punching defendant on one occasion when she went to Mother's apartment to pick up her daughters. C.F. stated defendant's trial attorney set two different appointments to speak with her daughters, but cancelled both appointments and A.O. and S.F. were not called as witnesses.
The motion for new trial asserted the case was an exception to the "due diligence" requirement for newly discovered evidence, citing People v. Soojian (2010) 190 Cal.App.4th 491 (Soojian). The motion asserted trial counsel's performance was constitutionally deficient because he failed to call witnesses who would have rebutted the presumption that Jane Doe had a reputation for veracity and truthfulness. These witnesses also would have shown bias and motivation for fabrication on the part of Jane, as well as showing, through C.F.'s testimony, that Mother had animosity towards defendant and she influenced Jane's allegations and testimony. The motion asserted counsel's failure to interview these witnesses was not a rational and informed decision based on adequate investigation. The motion asserted defendant was prejudiced by his trial counsel's deficient performance because the new witnesses would have created a reasonable probability of at least one juror finding reasonable doubt in the testimony of Jane.
The People's opposition asserted the statements in the declaration would not be admissible at trial because they contained speculation, lacked foundation, and constituted hearsay. The People asserted testimony merely impeaching a prosecution witness or contradicting the evidence of an opposing party did not constitute sufficient grounds for a new trial. The People asserted the evidence Mother hit defendant would have been inadmissible, citing the People's efforts to have domestic violence evidence by defendant against Mother admitted.
Citing People v. Shoals (1992) 8 Cal.App.4th 475, 488; People v. Hall (2010) 187 Cal.App.4th 282, 299 [evidence not leading to innocence not material]; People v. Green (1982) 130 Cal.App.3d 1, 11.
The People asserted trial counsel's performance was not deficient, stating defense counsel strategically did not call any impeachment witnesses to prevent the People from presenting evidence on CSAAS. Calling the witnesses would have opened the door to the People to call their CSAAS expert in rebuttal. The People further argued that had C.F.'s statements been admitted, it would have opened the door for the People to present Evidence Code section 1109 evidence.
At the hearing on defendant's motion, the trial court ruled the alleged new evidence was of the kind defendant knew of before trial. The court observed that if the evidence is actually known to the defendant or counsel at the time of trial, it cannot form the basis for a new trial based on newly discovered evidence. The court found at the very least, an inference can be drawn defendant was aware of the information contained in the declarations and defense counsel was aware of the nature of the evidence set forth in the declarations, as he had listed A.O. and S.F. as potential witnesses. The court found the evidence was not newly discovered. The court further found that on an objective basis, it is not probable a different result would occur on a retrial, even if the allegedly new evidence was presented. The court noted the alleged new evidence did not contradict the evidence against defendant; it merely was potential impeachment evidence.
As to defendant's assertion his trial counsel was ineffective, the court explained it had heard the trial and also reread the trial transcript. Based on this, the court found trial counsel's performance was constitutionally sufficient. The court found counsel's decision not to call witnesses was based on sound judgment, which in part was based on precluding Dr. Urquiza from testifying as a rebuttal expert witness. The court further found defendant had failed to show prejudice. The court found there was no reasonable probability sufficient to undermine the confidence in the outcome and denied the motion for new trial.
DISCUSSION
I. Motion for New Trial
Introduction
Defendant contends his motion for new trial was based on newly discovered evidence, and even if the evidence was known to the defense before trial, an exception to the due diligence requirement of section 1181, subdivision 8 exists because of trial counsel's failure to adequately investigate the case. Defendant further contends his trial counsel was constitutionally ineffective. Defendant argues the trial court improperly placed the burden of showing his trial counsel's inadequacy of representation on defendant and improperly found no prejudice from defense counsel's alleged ineffective representation. We conclude the trial court did not err in denying the motion for a new trial because there was no newly discovered evidence and defense counsel's representation was not inadequate.
Alleged Newly Discovered Evidence
Subdivision 8 of section 1181 provides a trial court may grant a motion for new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." To support a motion for new trial on this ground, the defendant must produce affidavits of the witnesses who will provide the new evidence. Determination of a motion for new trial rests so completely in the trial court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. Each case is judged based on its own factual background. (People v. Delgado (1993) 5 Cal.4th 312, 328; see People v. Thompson (2010) 49 Cal.4th 79, 140.)
The trial court considers the following factors: (1) the evidence, and not merely its materiality, be newly discovered; (2) the evidence not be merely cumulative; (3) it be such as to render it probable of a different result on retrial; (4) the party could not with reasonable diligence have discovered and produced it at the trial; and (5) the newly discovered facts be shown by the best evidence of which the case admits. (People v. Delgado, supra, 5 Cal.4th at p. 328.)
Facts known to the defendant at the time of trial are not newly discovered even where the defendant failed to share them with his or her counsel. (People v. Greenwood (1957) 47 Cal.2d 819, 822.) Defendant and his trial counsel were well aware of A.O. and S.F. as potential witnesses because they were both named in defendant's witness list for trial. Defendant further argues, however, his trial counsel failed to contact A.O. and S.F. to question them. Our Supreme Court has contrasted the knowledge of potential witnesses from the lack of due diligence by a trial attorney who fails to investigate exculpatory evidence.
Defendant's reliance on People v. Martinez (1984) 36 Cal.3d 816 (Martinez) is inapposite. In Martinez, the defendant was convicted of burglary related to the theft of various items of machinery from a tool company. The only evidence linking the defendant to the theft was his palm print lifted from a drill press removed from the building but abandoned near a perimeter fence. The defendant previously worked at the tool company, and at the time of the theft he worked across the street from the tool company. He testified he would occasionally touch or lean on the various machines during his visits to the tool company. The defendant had several witnesses at trial to confirm an alibi, leaving a slim period of time unaccounted for the evening of the burglary. The plant maintenance man testified he cleaned and painted the drill press on the day of the theft. In the motion for new trial, another employee came forward with a declaration that the drill press had been cleaned and painted days before the burglary, not the same day. (Id. at pp. 819-822.) The trial court denied the motion for new trial. Martinez reversed the conviction because the People's case was extremely weak, defense counsel failed to investigate exculpatory evidence, and there was a likelihood of a different result on retrial. (Martinez, supra, at pp. 821-823.)
In the instant case, although trial counsel allegedly did not question or interview A.O. or S.F., the trial court's finding that counsel was presumably aware of the nature of their testimony was reasonable given the fact the witnesses had been named as potential witnesses at trial. The facts of Martinez are also more compelling in support of a motion for new trial compared to those here. Subsequent to Martinez, the California Supreme Court has reiterated the evidence in question generally must be newly discovered. Furthermore, the holding in Martinez has been limited and does not apply to cases where the prosecution's case is not extremely weak. (People v. Dyer (1988) 45 Cal.3d 26, 51-53.)
Defendant relies on Soojian, supra, 190 Cal.App.4th 491, a decision from this court reversing a trial court for failing to grant a motion for new trial. The facts underlying Soojian's motion for new trial were far greater than those presented here. There were declarations from several witnesses who potentially could have undermined the credibility of the People's chief witnesses. Furthermore, there was the declaration of a trial juror stating the juror would not have voted to convict Soojian had these facts been known at trial. (Id. at pp. 505-511.) In Soojian, we concluded a defendant has met his or her burden of establishing a different result on retrial is probable if he or she has shown it is probable that at least one juror would have voted to find the defendant not guilty had the new evidence been presented. (Id. at p. 521.) Here, there was no declaration by any juror, much less a declaration that a juror would have reached a different verdict based on the alleged newly discovered evidence. Also, the newly discovered evidence in Soojian was arguably not known to the defense at trial. Soojian is legally and factually inapposite to this case.
The declarations of A.O. and S.F., defendant's close relatives, only state Jane Doe was known to lie to get out of trouble with her mother. Although these comments question Jane's veracity, they do so in the limited context of Jane trying to stay out of trouble with her mother, who would spank her. The potential witnesses do not more generally question Jane's ability to tell the truth and do not discount Jane's account of sexual abuse. The proffered statements indicate a limited situation in which Jane would not tell the truth in order to stay out of trouble. The two declarants also describe Jane as being defiant of defendant, not following his instructions, and considering defendant to be mean. These statements do not exculpate defendant. The statements tend to show Jane's hostility toward defendant and could be interpreted to corroborate Jane's account of sexual abuse. The declarations of A.O. and S.F. tend to impeach Jane. Newly discovered evidence merely tending to impeach a witness is not itself a sufficient ground for granting a motion for new trial. (People v. Long (1940) 15 Cal.2d 590, 607-608; People v. Bookout (1961) 197 Cal.App.2d 457, 464-465.)
A trial court is well within its authority to weigh the biases of witnesses providing potentially exculpatory evidence and to assess any conflicts with testimony adduced at trial. The trial court can find the proffered new testimony lacked credibility and implicitly find it would not have changed the result on retrial. (People v. Verdugo (2010) 50 Cal.4th 263, 308-309; People v. Delgado, supra, 5 Cal.4th at p. 329; People v. Dyer, supra, 45 Cal.3d at p. 51.) The trial court here did not abuse its authority or discretion in finding the declarations of A.O. and S.F. provided no reasonable possibility of a different verdict and were insufficient to justify a new trial.
II. Alleged Ineffective Representation by Trial Counsel
Defendant further asserts his trial counsel was ineffective for failing to question A.O. and S.F. or to call them as witnesses at trial. This argument is unconvincing because counsel had tactical reasons for not calling these witnesses to testify. Also, defendant has not demonstrated prejudice from counsel's alleged failure to question these potential witnesses because their proffered testimony would not have led to a reasonable probability of a different outcome.
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1019.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 419; see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will only occur if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel's choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
The trial court noted that had defense counsel called A.O. and S.F., it would have permitted the prosecutor to call an expert on CSAAS. CSAAS testimony is generally admissible not to show the reported abuse occurred, but to disabuse jurors of misconceptions surrounding sexual abuse such as late reporting, inconsistent accounts, or acting out behaviors. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1302.) Calling witnesses who would merely impeach Jane Doe by mounting a limited challenge to her veracity would have led to the People calling a CSAAS expert as a rebuttal witness. Aside from whether counsel was concerned with the possibility of the prosecution calling in rebuttal a CSAAS expert, counsel had another sound tactical reason for not calling A.O. and S.F. The potential testimony of these witnesses only marginally attacked Jane's credibility. Jane was not a weak witness at trial. Without more convincing evidence impugning Jane's veracity, calling these two witnesses to attack Jane because she shifted blame onto them to avoid being spanked, thought defendant was mean, and did not want to follow defendant's instructions could have been viewed by the jury as petty. Defense counsel was entitled to make these tactical decisions, and doing so did not make his representation deficient.
Defendant argues a CSAAS expert would have shown Jane Doe's conduct inconsistent with CSAAS. On the issues of Jane's late reporting and acting-out behaviors, we disagree with defendant's assessment of the potential impact of CSAAS testimony. Defense counsel had sound tactical reasons for avoiding two witnesses who could have opened the door to CSAAS expert testimony. --------
Defendant argues the failure to interview and/or call A.O. and S.F. was prejudicial. We disagree. Despite defendant's attempt to cast defense counsel's representation as constitutionally defective for failing to personally contact these witnesses, their proffered testimony had the potential to impeach Jane Doe at best. The testimony of A.O. and S.F. also had the potential to inflame the jury. The prosecution did not have a weak case against defendant. Jane's accounts to her cousin, her mother, and to the investigators of what happened to her were consistent in the most significant details. Defendant has failed to demonstrate the result of the proceeding would have been different. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394; In re Hardy, supra, 41 Cal.4th at p. 1018.) A reasonable probability of a different outcome is one sufficient to undermine confidence in the outcome. This question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1019.) We conclude counsel's performance did not render the result of the trial unreliable or fundamentally unfair.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DESANTOS, J.