Opinion
C084300
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. BRADLEY MICHAEL SCALISE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P14CRF0325)
A jury convicted defendant Bradley Michael Scalise of lewd acts on a child, sodomy of a person under age 10, and oral copulation with a person under age 10. The jury also found the acts were committed upon multiple victims. The trial court sentenced defendant to a determinate term of 18 years plus an indeterminate term of 160 years to life in prison.
Defendant now contends the trial court erred in excluding evidence that his roommate had pornography in the house, the prosecutor committed misconduct by misstating the burden of proof and asserting that the defense was smoke and mirrors, and if his claims are forfeited, trial counsel was ineffective.
We conclude defendant did not properly preserve his evidentiary challenge for appeal, his claims of prosecutorial misconduct are forfeited, and he has not established ineffective assistance. We will affirm the judgment.
BACKGROUND
Defendant and his wife were married in 2004 and separated in 2009. They had a daughter born in 2006 and a son born in 2008. The mother lost custody of the children in May 2011 after being arrested for driving under the influence of methamphetamine. Defendant had primary custody of the children from May 2011 to May 2014.
In 2010, the mother noticed the daughter and her former fiancé's daughter putting their dolls in sexual positions. When the mother asked where they learned that, the daughter answered, "my dad taught me." The mother noticed the son was wetting the bed again. Around that time, there were also significant behavior problems with the son, including sleeping with a knife under his pillow, stealing, and lighting things on fire. Defendant arranged for the son to be evaluated, enrolled him in counseling and a behavior program, and regularly communicated with his teacher.
In May 2014, the mother's former fiancé saw the children acting inappropriately with each other. When the mother asked what they were doing, they said they were playing marriage and the son made a masturbating gesture with his hand. The mother asked where he had learned that gesture and the son answered, "dad did that to me." The daughter also made the masturbating hand gesture and said she saw defendant do that to the son.
The mother brought the children to law enforcement. Cheryl Warchol, a forensic child interviewer, interviewed the daughter twice and the son once. Initially, the daughter told Warchol defendant had not done anything inappropriate with her or the son. But when Warchol interviewed the son, he said defendant "humped" him and the daughter. The son reported that defendant put his penis in the son's butt and touched the son's penis with defendant's hand and mouth. He said he also put his mouth on defendant's penis, touched defendant's penis with his hand, and put his penis in defendant's butt. The son added that defendant touched the daughter's vagina, breasts, and butt with his hands, touched the daughter with his penis, and licked the daughter's vagina and butt. In addition, the son said defendant sometimes showed him sexually explicit movies.
Warchol interviewed the daughter again and told her what the son had said about defendant's conduct with her. The daughter said defendant touched her vagina, licked her breasts and the son's breasts, and she saw defendant and the son touch each other's penises.
The next day, police interviewed defendant, who denied the allegations. He said the children caught him masturbating a few times in various rooms, including once in the son's room, he caught the son masturbating in the house, he applied medication to the daughter to treat a vaginal yeast infection, and the children sometimes went to bed with him and might have accidentally contacted his penis. He added that in April 2014 they were at a friend's house and he found a number of children, including his son and daughter, in a closet. The son was pulling up his pants. When asked what they were doing, the son said, "nothing." In a second interview about a week later, defendant also said that one time he had been masturbating in bed when the son snuck into the room and grabbed defendant's penis before defendant was able to pull away.
The children testified at trial, but could not remember everything they had reported in the interviews. The daughter denied the allegations, except that defendant had touched her genitals with his penis. The son repeated some allegations, but could not remember others. He testified defendant had touched the son's penis with his hands and mouth, and had the son touch defendant's penis with his hands and mouth "a lot." The son also testified he saw the daughter "humping" defendant.
Defendant testified at trial and denied the allegations. He repeated his claims that the children had accidentally seen him masturbating, and that the son might have accidentally brushed against him while the son was in defendant's bed. Defendant admitted he had a prior misdemeanor conviction for nonsexual assault of a minor and had gone to counseling and anger management after that conviction.
The videos of the interviews with the children and defendant were played for the jury.
The jury found defendant guilty of sodomy of a person under age 10 (Pen. Code, § 288.7, subd. (a) -- count 1), three counts of oral copulation with a person under age 10 (§ 288.7, subd. (b) -- counts 2 through 4), and 12 counts of lewd acts on a child (§ 288, subd. (a) -- counts 5 through 16). As to counts 7, 8, and 12 through 15, the jury found true allegations that the acts were committed upon multiple victims. (§ 667.61, subd. (e)(4).) The trial court sentenced defendant to a determinate term of 18 years plus an indeterminate term of 160 years to life in prison, awarded 1,117 days of presentence credit, and ordered him to pay a $300 restitution fine (§ 1202.4) and a $300 parole revocation fine (§ 1202.45).
Undesignated statutory references are to the Penal Code. --------
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the trial court erred in excluding evidence that his roommate had pornography in the house.
A
Early in the presentation of defendant's case, defense counsel advised the trial court that defendant wanted to testify, and defense counsel wanted to question him about a roommate who lived with defendant and the children at some point. Defense counsel explained that when the roommate was moving out of the house, defendant saw a lot of pornographic magazines and videos among the roommate's personal belongings. Although the children never indicated they had seen the material, defense counsel said they might have seen it.
When the trial court asked defense counsel to describe the material, defense counsel replied, "there were DVDs with images on the front and descriptors on the front and magazines." The trial court asked what kind of acts were depicted, to which defense counsel responded, "imagery on the front packaging of the DVDs" and "demonstrated sexual acts or simulated sexual acts as part of the advertising for the packaging and then miscellaneous adult pornography."
According to the trial court, defense counsel provided a "very general description" and it was "quite a stretch" to insinuate that the children had seen the material and then connected it with defendant, noting there was no evidence the children had seen the material, and very little information about the specific material involved. The trial court denied defense counsel's request to question defendant on the topic. Defense counsel stated, "And that's why I wanted to approach the Court first. Thank you."
B
Under Evidence Code section 354, in order to preserve a claim of erroneous exclusion of evidence, the proponent of the evidence must make the "substance, purpose, and relevance" of the evidence known to the court "by the questions asked, an offer of proof, or by any other means." (Evid. Code, § 354, subd. (a).) "An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal . . . provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. [Citations.]" (People v. Schmies (1996) 44 Cal.App.4th 38, 53, see also People v. Foss (2007) 155 Cal.App.4th 113, 128.) Thus, "[a]n offer of proof must consist of material that is admissible, and it must be specific in indicating the name of the witness and the purpose and content of the testimony to be elicited." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1176; see McMillian v. Stroud (2008) 166 Cal.App.4th 692, 704.) " ' 'The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue." [Citations.]' " (Rodrigues, at pp. 1176-1177.)
Here, as the trial court noted, the description of the pornography was extremely general. There were no specifics regarding what the pornographic material depicted, and no indication the pornography depicted the types of acts described by the children. There was also no specific proffer of when the children had access to the material. In fact, in his interview with law enforcement, defendant denied having a roommate when the children were there. The offer by defendant did not adequately set forth the content of the evidence to be produced and did not provide the trial court, or this court, with an adequate basis on which to properly assess the evidence's probative value or prejudicial effect. Accordingly, "[t]his speculation and lack of specificity was inadequate to preserve the issue for consideration on appeal." (People v. Foss, supra, 155 Cal.App.4th at p. 128.) Given this conclusion, it is not necessary to consider the parties' arguments on the relative probative value and prejudicial effect of the pornography evidence.
Defendant claims his due process rights were violated, but absent extraordinary circumstances, the application of ordinary rules of evidence under state law does not impermissibly infringe on a defendant's right to present a defense or testify. (People v. Abilez (2007) 41 Cal.4th 472, 503.) Defendant has not shown extraordinary circumstances here.
II
Defendant also claims the prosecutor committed misconduct by misstating the burden of proof and asserting that the defense was smoke and mirrors.
A
In closing argument, defense counsel argued there was reasonable doubt of defendant's guilt because, among other things, the children had not been medically evaluated, there was no laboratory testing of items in the house such as bedding, defendant was willing to speak with law enforcement, there was no direct evidence corroborating any of the children's testimony, and the mother had set up the allegations to regain custody of her children.
In rebuttal closing argument, the prosecutor stated: "I spent a lot of time . . . going through all the facts and showing how, when you apply each and every element to each and every charge, the defendant is guilty beyond a reasonable doubt. [¶] The defense did not attack one of those counts, did not attack any of the law, and did not say that each and every one of those counts are not met and that the people had not met their burden. [¶] So what did you hear from the defense for the last several minutes? You heard smoke and mirrors. You heard trying to confuse you, trying to keep you away from the issues, and trying to create issues and create doubt that is not based on law, that is not based on reason, and that is not based on logic." The prosecutor responded to defense counsel's claims and offered alternative explanations and interpretations of the evidence. "The defense wants you to believe that there's some sort of reasonable doubt, and he used the big language -- big words from the law to confuse you. And when you read the language, if there is a doubt, it has to be based on reason and on logic. You have none of that in this case . . . .
"Here is what the reasonable explanation of these children not wanting to tell is. They were told not to tell. Both of them said they did not tell.
"So what's a reasonable explanation why they were able to go to school and to the Boys and Girls Club and to all these other places and people didn't know? Because . . . [defendant] had told them not to tell.
"That was the life that those kids led. That is what the evidence is. That is what's reasonable based on the evidence, nothing that the defense was saying. That is what happened in this case.
"There is corroboration. You have two different kids saying it, saying that it happened to them and seeing opportunities when it happened to each other as well.
"The reasonable interpretation is that this defendant is lying. He lied in his first statement, he lied in his second statement, and he lied in his third statement on the stand yesterday. That is the reasonable evidence from this trial."
B
Defendant did not object to any of the prosecutor's comments. To the extent any of the comments were objectionable, they could easily have been cured by an admonition from the judge. (People v. Cunningham (2001) 25 Cal.4th 926, 1002.) Accordingly, defendant forfeited his claims of prosecutorial misconduct. (People v. Huggins (2006) 38 Cal.4th 175, 205.)
Anticipating this result, defendant alternatively argues trial counsel was ineffective for failing to object. We conclude the challenged comments did not amount to prosecutorial misconduct, and defense counsel was not deficient in choosing not to assert meritless objections.
"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law [citation] or to resort to personal attacks on the integrity of opposing counsel [Citation]." (People v. Bell (1989) 49 Cal.3d 502, 538.) Defendant claims the prosecutor's repeated references to trial counsel's argument as smoke and mirrors "cast aspersions on defense counsel and suggested that defense counsel was trying to deceive the jury." We disagree. References to counsel's argument as smoke and mirrors is not misconduct since it is a permissible comment on opposing counsel's arguments rather than a personal attack on counsel. (See, e.g., People v. Cunningham, supra, 25 Cal.4th at pp. 1002-1003 [a prosecutor's statement that defense counsel's job was to " 'create straw men' " and " 'put up smoke, red herrings' " was not misconduct]; People v. Stitely (2005) 35 Cal.4th 514, 559 [referring to defense counsel's argument as " 'ridiculous' " and a " 'legal smoke screen' " was not misconduct].)
Moreover, "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (People v. Centeno (2014) 60 Cal.4th 659, 672, italics omitted (Centeno).) However, it is proper to urge the jury to consider all the evidence before it, "to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts," and "to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory." (Ibid.) It is also proper for the prosecutor to ask the jury to " 'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.' " (People v. Romero (2008) 44 Cal.4th 386, 416.) In order to demonstrate that a prosecutor's argument is improper, the defendant must show that, " '[i]n the context of the whole argument and instructions' [citations], there was a 'reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (Centeno, at p. 667.)
Here, no portion of the prosecutor's argument stated or implied that the jury could legitimately convict defendant if it believed the prosecution's evidence was reasonable. (Centeno, supra, 60 Cal.4th at pp. 672-673.) Even the excerpts selected by defendant contain no such implication. Rather, it is fair comment to say that the defense theory is unreasonable, based upon the evidence (id. at p. 673), and to ask the jury to accept the reasonable and reject the unreasonable. (People v. Romero, supra, 44 Cal.4th at p. 416.) Accordingly, there was no misstatement of the law, and there is no basis for concluding that it is reasonably likely that the jury understood or applied the comment in an improper or erroneous manner. (Centeno, at p. 667.)
Because the prosecutor did not commit misconduct, trial counsel was not required to raise meritless objections to closing argument. "Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance. [Citations.]" (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MURRAY, J.