Opinion
A143979
10-31-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ANTHONY SERNA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 51306430)
A jury convicted Steven Anthony Serna of perpetrating sex crimes against his 10-year-old daughter, Jane Doe, in three separate incidents during the summer of 2012. The evidence included Jane's out-of-court statements about the incidents to her mother, to a police officer and to a forensic interviewer as well Jane's testimony at trial. Defendant challenged the admission of Jane's out-of-court statements. His primary defense was that he mistook Jane for his then-girlfriend due to the combined effect of his drinking and taking anxiety medication. He also claimed he had erectile dysfunction. The jury convicted him on seven counts and found true two special allegations, and the court sentenced him to an indeterminate term of 25 years to life in state prison.
Defendant appeals from the judgment on numerous grounds. He argues the court violated his Sixth Amendment right to confront witnesses by admitting Jane's statements to the officer and the forensic interviewer, and erred by admitting her statements to her mother, not holding a competency hearing for Jane, mishandling Jane's witness support people, rejecting defendant's new trial motion and denying him presentence conduct credits. He also argues he received ineffective assistance of counsel and that there is insufficient evidence for most of his convictions. We conclude the court erroneously denied him presentence credits. Otherwise, we find no prejudicial error and affirm.
BACKGROUND
In March 2013, the Contra Costa District Attorney charged defendant with seven sex crimes against Jane Doe and made certain allegations, which, as amended, were: sexual acts with a child 10 or younger (oral copulation/sexual penetration) (§ 288.7, subd. (b), count one); a lewd act on a child under 14 (§ 288, subd. (a); count two) with substantial sexual conduct (§ 1203.066, subd. (a)(8)); a lewd act on a child under 14 (§ 288, subd. (a); count three); sexual acts (intercourse or sodomy) with a child 10 or younger (§ 288.7, subd. (a); count four); sexual acts (oral copulation or sexual penetration) with a child 10 or younger (§ 288.7, subd. (b); count five); sexual acts (oral copulation or sexual penetration) with a child 10 or younger (§ 288.7, subd. (b); count six); and a lewd act on a child under 14 (§ 288, subd. (a); count seven) with substantial sexual conduct (§ 1203.066, subd. (a)(8)). A jury trial followed.
I.
Prosecution Evidence
Jane Doe's mother testified at trial that in 2012, Jane, then 10 years old, spent alternate weekends with defendant at his home in Bay Point, California. In mid-July, mother noticed on a trip that Jane was aggravated, mean, spiteful and not having a good time. When mother expressed her concern, Jane said she was "fine." In August, mother noticed Jane acting "flirty with men" at a wedding. A couple of days later, mother picked Jane up from school and pressed her about whether something was wrong. Jane began shaking and crying. She said defendant was touching her "[d]ownstairs, in her private area." She said that "he tried to—it wouldn't go in one way, so he was trying to put something in the other way," meaning "her butt." She thought something went in her butt, but did not know what.
Mother further testified that Jane told her what defendant specifically did in each of the three incidents. The first time, he touched Jane downstairs and licked his fingers afterwards. The second time, he grabbed her from behind and she said, "Daddy, it's me, [Jane]. And then he reached over to look at her and then he stopped." The third incident occurred after "a fight that came on TV, . . . like a boxing fight." Defendant "did the fingers or the butt or whatever it was and touched her vagina." He was "drunk" and "grabbed her and touched her downstairs and used his fingers and touched her butt." He tried to put "it" in one way and, when it did not work, tried to put it in the other way. Jane did not know the specific times of the incidents, but they occurred during the summer.
Mother said Jane was "crying, scared" and concerned about what would happen to her dad. Mother met defendant in 1996 and had "never known [him] to do anything of this type." She and Jane phoned defendant and mother told him what Jane had said. Defendant "instantly got upset," "said that he wouldn't do anything like that," and "hung up . . . and then called back." He said, "I'm not gonna call my daughter a liar," but could not remember. Jane spoke to defendant, and told mother "he's not gonna do it again, so we don't have to worry about it." Later that evening, mother called the police.
Christopher Drolette testified that in August 2012, he was a patrol deputy with the Contra Costa County Sheriff's Department. On August 6, 2012, he was dispatched to interview the possible victim of a child molestation. He spoke first with mother, who was angry, and then interviewed Jane Doe alone in her bedroom. Initially, Jane seemed a little shy, nervous and embarrassed. She said she frequently visited her father on the weekends. One time he touched her in her private areas and inserted something into her rectum. She did not recall exactly when, but it was a night when her father had been drinking and playing video games. She went to sleep in his bed, where she frequently slept, and woke up to hear him vomiting in the bathroom. He got into the bed, pulled her toward him, pulled her pajama bottoms down and began to fondle her private areas; she pointed to her crotch and vaginal area, which she called her "front butt." She said her father inserted his fingers into her, which hurt her. She was scared and did not know what to do. He put one of his fingers into his mouth, made a popping noise, and she felt something go into her butt hole. When he took it out, he rolled over and went to sleep.
Based on the times Jane was at her father's house, Drolette determined the incident likely occurred on July 14, 2012, at 3:00 a.m. However, the dispatch log states, "Assault occurred 7-7-2012."
Police officer Kenny Hutton testified that on August 9, 2012, he participated in a team interview of Jane at a Child Interview Center (CIC) by a trained forensic child interviewer. A recording of this interview was played for the jury. Jane described three incidents when her father touched her as she slept in his bed, where she usually slept when visiting him. Although she had her own room, the bed there did not have sheets. Her father first touched her one night when he was drunk, which he was "kinda a lot of times" or "sometimes" since breaking up with a previous girlfriend. Jane was asleep in his bed and heard him turn off his video games, the TV and the light. He fingered her front butt for three or four minutes. "[H]e put his finger and it went into my front butthole, but not a lot it was just like, a little." He did not try to put his finger in all of her front butthole and did not put it in the hole. She cried because she did not know what he was doing. She indicated defendant wet his finger in his mouth. He put his finger back in her front butt and did the same thing again, then stopped and pulled up her pants. She hurt. She did not feel his finger go in the hole this first time, but she did the last time, when he did the same thing to her.
Jane said the second time was also on a night when she was sleeping in her father's bed. He tried to pull down her pants. She slapped his hand and said something like, "[d]addy, stop it, stop it," and put the pillow between them. He stopped.
Jane said the third time, two cousins were visiting. Her father came home from work, watched TV, made CDs and songs, and played video games. Her grandmother, who lived with her father, reluctantly got him some beer, concerned that he would get drunk; Jane could tell when he was drunk because he acted "all silly." Jane brought the beers upstairs to her father's room, where he was playing video games. Soon, he told Jane to go to bed when she was ready. She put on her pajamas and went to play with her cousins.
At about one in the morning, Jane told the interviewer, she went upstairs to her father's bed. He was still playing video games, sitting on the floor with his beer bottles around him. She turned up the TV, got into bed and fell asleep. She woke up hearing her father, drunk, knocking things over as he tried to go out the door. Then she heard him slam the bathroom door and throw up. She had not seen him that drunk before.
Jane said her father came back in the bedroom, put on shorts, took off his shirt and laid on the bed. Usually a pillow was between them because she was a wild sleeper, but not this night. He wrapped his arms around her, pulled her towards him and pulled her pants down. She was really scared. Her underwear was down to her knees and her back was to him. She could not see because it was dark. He moved her so she was facing up and touched her "front butt," where she peed, with his fingers for about five minutes. It really hurt. She cried quietly, and did not think he could tell. He turned her around and touched her "butt" and her "butthole." He put something, which she thought was his "front butt," in her butthole. With part of his pants down, he was trying to shove it in there. He did not say anything. He tried to go into her "back butt," which hurt her. She was crying and shaking, but did not say anything.
Jane circled what she called her front and back butts on drawings of a girl. She said she knew boys had a different front butt, having seen her cousin's.
Jane said her father moved her and tried to put "it" in her front butt, but could not. Then he moved her again and put the thing back in her butthole for about ten minutes. Before that, he touched her front butt and took his finger and made a noise like he "was like eating my like front butt." His finger went in her front butt and he put his front butt in her butthole. She knew it was his front butt rather than his finger because she felt both his hands grabbing her. Then he looked back and probably realized it was her and stopped. He did not say anything and went to sleep. Her front and back butts hurt. At the interviewer's request, Jane used two teddy bears to show how her father moved and touched her. She also said he had broken up with his girlfriend on that day and might have thought Jane was her.
Jane did not know the exact dates of the three incidents. The first occurred right after school ended on June 7, the second in the middle of June or in July, and the third sometime in July. She told her mother about them and talked to her father. He said it would not happen again, he would have her bed ready if she came over that week and he was really sorry. She was not worried that he would do it and even though he hurt her, she still wanted him to be a part of her life. She blamed herself in part for what was happening to him.
At trial, Jane, then 12 years old, testified that she was a little bit nervous. She lived with her mother, understood the difference between truth and a lie and knew it was better to tell the truth. She went to her father's house to visit him, "like a lot," and identified him in the courtroom. Asked if there was "ever a time that your dad did something to you that you didn't like," Jane answered "Yes," and that she told her mother about it. She could not recall when, but she had just gotten out of school and they were in the car, and she told her mother the truth. She remembered being interviewed by a lady in a room where she was videotaped and she told the lady the truth also. When the prosecutor asked if she remembered the first time her father touched her, Jane became tearful, and a break was taken. After the break, Jane returned to the stand. The prosecutor indicated he had no further questions.
Defense counsel proceeded to cross-examine Jane. Jane said that when she was being interviewed at CIC, she drew all of the beer bottles her father drank on the day of the third incident. At defense counsel's request, she again drew these bottles, and also drew her father's bedroom and answered questions about it. When defense counsel asked how she would have described her father that night, Jane answered, "Drunk." She remembered telling the lady interviewer that she thought her father had mistaken her for someone else, meaning "[h]is girlfriend, Hailey." Jane also "kind of" remembered a time when her father was going to touch her and she slapped his hand and said, "Dad, it's me."
Officer Hutton also testified that he and another detective interrogated defendant on August 9, 2012, when defendant was in custody. A recording of this interrogation was also played for the jury. Defendant said that one night, he went to a friend's house to watch a televised fight. Before going, he told Jane to stay downstairs with her grandmother or on the couch because Hailey, his girlfriend, might be coming over. He "pretty much threw [Hailey] out of his home "the next day" after a disagreement. While watching the fight, he got pretty drunk on a lot of beers; he also was taking Ativan at the time, which made him feel even more tired and drunk.
Defendant said that when he arrived home, he was not feeling well and laid down on his bed. He then went in the bathroom, but could not recall if he threw up. Jane knocked on the door and asked if he was okay. He told her to go downstairs and stay with her grandmother. It was around 1:00 a.m., and he tried to text Hailey to see if she was coming over. Then he laid down on the bed and passed out. He woke up, drank water from a bottle by the bed and went back to sleep. He woke up again and patted down the right leg of someone in the bed next to him until he reached the hair part. Hailey's hair was dyed, hard and crunchy, and he did not feel that. He was startled and said, "What the fuck? [Jane], how'd you get, like, . . . how the hell'd you get up here?" He pushed her over, rolled over and went to sleep.
Asked for more details, defendant said he patted Jane, but did not remember fingering her. She did not have any pubic hair, but neither did his girlfriend, who shaved. He patted Jane on top of her clothes or pajamas, and patted her inner thigh. He did not remember getting even remotely close into her vagina. He touched her pubic area, including "across the lips," and supposed he got under her clothes. It "felt like a baby bottom instead of a woman that shaves," not like Hailey. He stopped because he finally woke up, opened his eyes and realized it was Jane.
Defendant said he had fingered Hailey before, but never in her behind and never had anal sex with her. Hailey was small and pretty tight "down there" but she instantly became "turned on" and moist. He did not feel any of that and realized he was not with Hailey. Sometimes he touched Hailey and fooled around with her, but this time he was so drunk nothing could have happened. Also, he had prostate issues and could not become aroused if he did not take a pill.
Defendant said he had no recollection of fingering Jane or putting his fingers inside her. He might have, but he did not know because he was "totally fucked up" that night. He remembered touching "the front of her pussy" and "goin' like that a little bit." He might have pulled his finger out and put it in his mouth. He wanted his daughter to know that he "really didn't know it was her," "I love her," he was "sorry that I . . . did that to you," and "I wanna get better and be a better father so shit like that will never happen again."
The People also presented the testimony of Dr. Abraham Rice, who examined Jane in August 2012. He testified about the anatomy of female sexual organs, their differences at different stages of a child's development, and the pain that accompanies touching beyond the labia minora and around the anus. He also testified about the rapid healing of a child's anatomy and the inability to find abnormalities with a high percentage of reported child sexual assaults, his examination of Jane, her size and stage of development at that time, and his examination findings neither confirming nor denying her allegations about her father's acts.
Hailey testified that she shaved her pubic hair in the summer of 2012, was slim and had very skinny legs, had a sexual relationship with defendant during the period they dated, sometimes stayed in his home and had sex with him when Jane was there, sometimes came to his house late at night through an unlocked door, sometimes had sex with defendant after she fell asleep and he made advances, and was receptive to those advances. Her relationship with defendant "started to end" around July 9 of that year. Around that time they stopped having sexual intercourse. He still wanted to be together and tried to talk her out of ending the relationship. He had been drinking on July 7, 2012, and took anxiety medications.
II.
Defense Evidence
The defense called four witnesses and recalled Drolette. Dr. Sakti Das, a urologist, testified that he treated defendant for prostate problems, including when defendant complained at 17 about inadequate erections, and that prostate problems can affect penile function.
Arthur Benoit, a friend of defendant's, testified that he spent time with defendant and Jane Doe. Defendant loved Jane, always put her first and never acted inappropriately towards her, and she showed no fear of her defendant. Defendant was not known for sexual deviance and had a reputation for honesty. Benoit did not believe he would knowingly touch Jane's vagina and would trust him around Benoit's own children. Also, Benoit said, he, defendant and friends watched the televised fight together while drinking a lot of alcohol. Defendant spoke fondly of his girlfriend and said he planned to see her later that evening.
Jay Lightner testified that he owned a nonprofit entity that ran a residential program for foster children. He had previously employed defendant, who had worked with children and was not known to be sexually inappropriate with them.
Earl VanBuskirk testified that he was a close friend of defendant and had known him for many years. VanBuskirk and his family spent a lot of time with him and Jane. Defendant was not known to be sexually inappropriate with children.
In his previous testimony, Drolette testified that he used a recording of his interview with defendant to prepare his report, although he did not report some of his interview questions or all of defendant's answers. He also indicated that in May 2013, he received a request for a copy of the recording, but was not able to provide it. When the defense called him to the stand, he further testified that he interviewed defendant at his home before his in-custody interrogation, and that he could not later download the recording because the recorder was broken.
The jury found defendant guilty on all counts and found both special circumstance allegations to be true. Defendant filed a motion for new trial based on, among other things, ineffective assistance of his trial counsel, which the court denied. It sentenced defendant to an indeterminate term of 25 years to life for count four, imposed concurrent terms for counts one, two, three, and five; and stayed the sentences for counts six and seven pursuant to section 654. Defendant filed a timely notice of appeal.
DISCUSSION
I.
The Trial Court Did Not Commit Crawford Error.
Defendant first argues the trial court committed error under Crawford v. Washington (2004) 541 U.S. 36, 51-53 (Crawford) by admitting Jane Doe's statements to Deputy Drolette and the CIC forensic interviewer. These, he argues, involve testimonial hearsay that was inadmissible because Jane's reluctance to testify rendered her unavailable for cross-examination.
In Crawford, the United States Supreme Court concluded that the Confrontation Clause of the Sixth Amendment "created a general rule that the prosecution may not rely on 'testimonial' out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination." (People v. Lopez (2012) 55 Cal.4th 569, 576; see Crawford, supra, 541 U.S. at p. 68 ["the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination"].) However, Crawford "makes clear that 'when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.' " (People v. Cage (2007) 40 Cal.4th 965, 978, fn. 7, quoting Crawford, at p. 59, fn. 9.) Thus, our high court has rejected Crawford claims where declarants testified at trial. (People v. Cage, at p. 978, fn. 7; People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.)
As we have discussed, Jane testified at trial. Still, defendant argues she was unavailable for cross-examination because she was reluctant on direct to testify about defendant's sexual acts, and she was not asked about and did not provide any specifics. He contends these circumstances made it "grossly unfair" to expect defense counsel to cross-examine her about his alleged acts.
This argument is without merit. Jane testified. That she may have been nervous or reluctant does not alter that she answered all questions asked of her until she was excused. While the court ordered a break in the proceedings after she apparently lost her composure, she regained it and resumed the stand. The prosecutor indicated he had no further questions, and defense counsel proceeded to cross-examine her. Jane did not hesitate or refuse to answer any of defense counsel's questions. Indeed, defense counsel elicited testimony favorable to defendant's case, such as Jane's observation that her father was very drunk on the night of the third incident and that she thought her father might have mistaken her for his girlfriend, Hailey. When defense counsel later sought to exclude her prior statements because of her purported unavailability to testify, the court observed, "the questions that you did ask, she did respond to, so I have no sense that she would not have answered more questions if you were to have asked more." (Italics added.)
Defendant relies solely on People v. Murillo (2014) 231 Cal.App.4th 448, which is inapposite. There, a witness to a murder identified the defendant as the shooter in a photographic lineup. (Id. at p. 450.) When called to testify by the prosecution, the witness refused and the court permitted the prosecutor, over the defendant's objection, to ask the witness more than 100 leading questions based on his statements to police detectives. (Id. at pp. 450-451.) The Murillo court held that the witness's "refusal to answer over 100 leading questions while the prosecutor read to the jury from his police interviews denied Murillo the opportunity to cross-examine the victim on what was tantamount to devastating adverse testimony." (Id. at p. 456.) Those circumstances bear no resemblance to this case. Jane answered all of the questions of both the prosecutor and defense counsel, and the prosecutor did not attempt to create evidence of her prior statements by asking leading questions.
In any event, defendant had the opportunity to effectively cross-examine Jane. This is the extent of his confrontation right. In United States v. Owens (1988) 484 U.S. 554, the United States Supreme Court held that a witness's inability, in that case because of memory loss, to explain the basis for his out-of-court statements did not render him unavailable for purposes of the Confrontation Clause, reasoning that the clause "guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.' " (Id. at p. 559.) "It is sufficient," the court held, "that the defendant has the opportunity to bring out such matters as the witness' bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination, [citation]) the very fact that he has a bad memory." (Ibid.) Our own Supreme Court likewise rejected a defendant's argument that there could "be no constitutionally effective cross-examination when the witness cannot recall the facts related in the hearsay statement." (Cowan, supra, 50 Cal.4th at p. 468.) Likewise in this case, defendant had the opportunity to cross-examine Jane and was thus afforded his right to confront her.
Although United States v. Owens predates Crawford, "[n]othing in Crawford casts doubt" on its "continuing vitality." (People v. Cowan (2010) 50 Cal.4th 401, 468 (Cowan).)
Defendant also argues, citing Evidence Code section 761, that Jane's failure to testify about his acts on direct meant any cross-examination of her about these alleged acts would have been inadmissible as exceeding the scope of the direct examination. This argument is easily disposed of. Jane was excused as a witness "subject . . . to recall." So was the witness in Cowan. Our Supreme Court held that because the defendant "was free to recall and cross-examine" that witness, "[n]o Sixth Amendment violation occurred." (Cowan, supra, 50 Cal.4th at p. 463.) The same is true here. If defendant had recalled Jane as his witness, the scope of her prior testimony on direct would not have limited the scope of defense counsel's questioning. But defense counsel did not recall her, even after the trial court specifically ruled that the defense had had the opportunity to confront and cross-examine Jane, satisfying Crawford, and further held that Jane's statements to her mother, the officer and the CIC interviewer were all admissible. Counsel may well have had good reason for limiting her examination of Jane, not the least of which was that she had already succeeded in eliciting testimony from Jane that was favorable to her case, including that her father was "[d]runk" and may have mistaken her for his girlfriend. Moreover, given the consistency and specificity of Jane's prior statements, her willingness to answer the questions asked of her, and her obvious affection for her father, defense counsel may have concluded that any attempt to cast doubt on her credibility would not have succeeded. In short, how and to what extent to question Jane was a matter of defense counsel's choice. Neither the People nor the court imposed any limit on the defense in violation of Crawford.
II.
The Trial Court Did Not Err by Admitting Jane Doe's Statements to Her Mother.
Defendant next contends the court erred in admitting mother's testimony about Jane Doe's prior hearsay statements to her because these statements were not subject to any exception to the hearsay rule. This too is incorrect.
Defendant contends that Jane's statements to her mother were admissible, if at all, under the "fresh complaint doctrine," which allows admission of hearsay statements only for the non-hearsay purpose of showing a complaint was made. The court did not rely on that hearsay exception, however, but instead relied on section 1360 in admitting Jane's statements.
The trial court admitted Jane's statements to her mother under Evidence Code 1360 (section 1360). It provides that a hearsay statement of a victim under the age of 12 describing any attempted act of criminal child abuse is not made inadmissible by the hearsay rule if the court finds in a hearing away from the jury that the time, content, and circumstances of the statement provide sufficient indicia of reliability; the child testifies or the hearsay statement is corroborated; and the proponent of the statement gives notice of its intent to use the statement at trial. (§ 1360, subds. (a), (b); People v. Brodit (1998) 61 Cal.App.4th 1312, 1329.)
The trial court held a hearing away from the jury to determine the admissibility of Jane's prior statements. Mother and Drolette testified. The court ruled that mother's testimony was admissible under section 1360. Jane was 10 years old when she made the statements to her mother, and they were generally consistent with what she later told Drolette and the CIC interviewer. She told her mother under circumstances that were "not unduly coercive or suggestive" and within a month of the acts. Thus, the time, content and circumstances provided sufficient indicia of reliability under section 1360.
The court concluded Jane's statements to mother were admissible even if Jane did not testify, presumably because what she told Drolette and the CIC interviewer corroborated these statements.
Defendant acknowledges section 1360, but contends that to the extent it "would allow hearsay statements of a child victim if the child testifies but is not 'available' for cross-examination, it was impliedly overruled by Crawford." As we have already discussed, Jane was available to testify and thus Crawford does not apply. Hence, the court could apply the section 1360 hearsay exception to the circumstances of this case. Defendant's argument lacks merit.
In light of our conclusions that the court did not err by admitting Jane's prior statements, we do not address defendant's prejudicial error arguments.
III.
The Court Did Not Err Regarding Jane Doe's Competence to Testify.
Defendant next argues that the trial court erred by not holding a hearing away from the jury regarding Jane Doe's competence to testify, given the prosecutor's pre-trial statement that he did not know how Jane would " 'react when confronted with the actual idea of testifying against her father.' " Had the court done so, defendant argues, "it would have been apparent that Jane Doe was not capable of expressing herself concerning [defendant's] alleged acts and was thus 'unavailable' for purposes of Evidence Code section 1360." We disagree.
"Except as provided by statute, 'every person, irrespective of age, is qualified to be a witness.' (Evid. Code, § 700; see also Pen. Code, § 1321.) The primary statutory grounds for disqualification are inability to express oneself comprehensibly on the subject of the testimony and inability to understand the obligation to tell the truth. (Evid. Code, § 701.) A party who claims that a witness lacks either or both of these basic qualifications bears the burden at trial of proving disqualification. [Citation.] Moreover, to preserve for appeal a claim that a witness lacked testimonial competence, a party must object on this ground in the trial court. [Citations.] Defendant may not circumvent this objection requirement by claiming that the trial court should have inquired into the witness's qualifications on its own." (People v. Cudjo (1993) 6 Cal.4th 585, 621-622.)
Defendant fails to show he objected below to Jane's competency as a witness. However, the People do not raise forfeiture, so we address the merits.
Evidence Code section 701, subdivision (b) states that the court may hold a competency hearing, but also "may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness." According to Witkin, "Some types of preliminary facts should be determined outside the presence of the jury, to avoid the prejudicial effects of jurors actually hearing evidence ultimately excluded, or becoming aware of debatable grounds of admissibility. In other situations, the danger of prejudice is slight, and there is little need for this precaution. Accordingly, the prevailing practice, confirmed by the Code, places the matter within the judge's discretion." (3 Witkin, Cal. Evid. (5th ed. 2012) Presentation at Trial, § 62, p. 112, citing Evid. Code, § 402 ["[w]hen the existence of a preliminary fact is disputed," the court "may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury"].)
Defendant cites People v. Roberto V. (2001) 93 Cal.App.4th 1350 for his argument that it was "inappropriate" for the court to assess Jane's competency in front of the jury, quoting that court's statement that "[w]hether a witness has the capacity to communicate and an understanding of the duty to testify truthfully is a preliminary fact to be determined exclusively by the trial court." (Id. at p. 1358.) However, the Roberto V. court said nothing about what procedure to employ to make that determination. Its focus instead was on the fact that the trial court made no inquiry into the witness's competence to testify. The court did not hold that a trial court must hold a hearing whenever a party questions a witness's competence or address whether the court could evaluate competence based on the testimony of a 12-year-old at trial. In fact, as the People point out, Jane's trial testimony amply demonstrated her competence to testify. She indicated she understood her obligation to tell the truth and her testimony on direct and cross-examination demonstrated she was able to express herself so as to be understood. That she momentarily lost her composure during direct was irrelevant in light of her quick recovery. Defendant's argument lacks merit.
IV.
The Conduct of a Witness Support Person and Spectators Did Not Deprive Defendant
of a Fair Trial.
Defendant next argues the conduct of a support person for Jane Doe and of spectators deprived him of a fair trial. We again disagree.
A. Factual Background
A support person stood behind Jane as she testified. Her mother, who previously testified, was also present as a support person. During the break for Jane to regain her composure, defense counsel told the court, "it looked like her support person was crying behind her" and "kept wiping her eyes." The court said it was "not happy" with the support person because she was "much too animated . . . [a]nd at least once when I glanced over, she was doing something verbally," which the court later said was "making faces." The court was concerned the support person "did not seem to understand her role." Defense counsel also stated, "I didn't count the number of family members that surrounded (Jane), and . . . the whole thing has just made it impossible," but did not request that the court admonish anyone or instruct the jury about a support person's role.
In a written motion in limine, defendant requested that any support person be admonished "pursuant to the attached admonishment," which is not in the record. During argument, the court indicated it did not received it either.
After the break, Jane returned to the stand with a different support person. After Jane testified and the jury was released for the day, defense counsel moved for a mistrial based on "dramatics that occurred here in the courtroom." The court responded, "It is not unusual for a child to respond in the manner that (Jane) did. And I did state I was not pleased with the first support person and that is why we did have a different support person when (Jane) did come back on the stand." Based on the "totality of the circumstances" and its observations, the court did not think defendant was unduly prejudiced.
Defense counsel then referred to the "number of family" present as "a circus." The trial court said this was "an overstatement." Defense counsel responded that "a wave" surrounded Jane at the break and when they reentered the courtroom "there was at least one woman who . . . was mugging me and there was a lot of mugging going on." This and Jane's emotion warranted a mistrial. The court and the prosecutor indicated they did not observe any "mugging," and the prosecutor noted that in any event the jury did not return to the courtroom until after Jane had returned and everyone else had settled. Also, he argued, it was an open court and family members had a right to be there. The court denied defendant's motion. After the trial, the court denied defendant's motion for a new trial on the same (and other) grounds.
B. The Law Governing Support Persons
Section 868.5 provides that a prosecuting witness in a case involving certain violations, including of sections 288 and 288.7, "shall be entitled, for support, to the attendance of two persons of his or her own choosing, one of whom may be a witness, . . . at the trial . . . . Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness' testimony." (§ 868.5, subd. (a).)
Section 868.5 further provides that for a support person who is also a witness, "the prosecution shall present evidence that the person's attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person's attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. . . . In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way." (§ 868.5, subd. (b).) Nothing in section 868.5 excludes the court "from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness." (Ibid.)
"Case law uniformly rejects arguments that section 868.5 is inherently prejudicial, erodes the presumption of innocence, and impermissibly encroaches on confrontation clause and due process clause rights." (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1077, disapproved on other grounds by People v. Gutierrez (2014) 58 Cal.4th 1354, 1360-1361, 1370-1371; see also People v. Myles (2012) 53 Cal.4th 1181, 1214-1215 (Myles) [a support person's presence and conduct did not deny defendant right to fair trial, impartial jury or other constitutional guarantees].) But courts have recognized that an accused's constitutional rights may be violated if a support person "interferes with the witness's testimony in a way that adversely affects the jury's ability to assess that testimony," such as by "emotional displays or physical contact with the witness [that] may signal to the jury that the support person believes or endorses the witness's testimony." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1169-1171.)
C. Analysis
Defendant contends the trial court made numerous errors regarding Jane Doe's support persons: it allowed more than two in violation of section 868.5; it did not find, and the prosecution did not present evidence, that Jane desired the presence of her mother, who was a witness, or that she would be helpful to Jane as required by section 868.5; the court did not "admonish any of the support people to not prompt, sway, or influence the witness in any way" as required by section 868.5; and "one of the support people was crying behind Jane Doe while she was testifying, and, according to the court, was 'much too animated' and 'was doing something verbally.' " Defendant contends he was "prejudiced by each of these circumstances."
We conclude the court erred under section 868.5 by not admonishing mother and not requiring the prosecutor to provide evidence that mother's presence was desired by Jane and would be helpful. However, these errors were harmless. Defendant has not complained that mother's presence in the courtroom during Jane's testimony caused any disruption or that mother acted inappropriately in any way. The court's failure to admonish the other support person who stood behind Jane during her testimony was unfortunate because it might have prevented her animated and emotional conduct during Jane's testimony, but it was not a violation of section 868.5. Under section 868.5, the court is only required to admonish support people who are also witnesses not to "prompt, sway, or influence" the witness, although the better practice is to admonish all support persons. (People v. Valenti, supra, 243 Cal.App.4th at pp. 1169-1171, 1172.)
We also do not think the support person's conduct denied defendant a fair trial. There is no indication that she affected Jane's testimony. She stood behind Jane and there is no indication that she touched, communicated with, or was observed by Jane. Also, her conduct does not appear to have prejudiced the jury against defendant. While the jury presumably could have seen her behind Jane and inferred that she believed and sympathized with Jane, she was only present for Jane's direct examination, during which Jane did not describe any of her father's sexual acts. Her conduct was a brief moment in a long trial. The trial judge was in the best position to appreciate its effect and concluded it did not prejudice the jury. (Myles, supra, 53 Cal.4th at pp. 1215-1216 ["trial judge was in the best position to evaluate the impact of [the support person's] conduct in front of the jury"].)
Defendant's contention that there were more than two support persons because Jane's other family and friends attended the trial, and some left the courtroom with a tearful Jane at the break, is wrong. Penal Code section 868.5 does not place any restrictions on the number of spectators who may attend all or any part of the trial. A trial is a public proceeding, and the right to public trials extends beyond the accused and belongs to the public as well. (Richmond Newspapers, Inc. v. Commonwealth of Virginia (1980) 448 U.S. 555, 580 [holding that "the right to attend criminal trials is implicit in the guarantees of the First Amendment"], footnote omitted.) Further, defendant made no request to exclude Jane's family and friends, much less a compelling argument for doing so. (Cf. Myles, supra, 53 Cal.4th at pp. 1214, 1215-1216 [victim's spouse who, after testifying, remained in courtroom and cried and was held by her support people during a witness's testimony about her husband's shooting "had a right to be in the courtroom," and her conduct was not prejudicial].) Their presence did not deprive him of a right to a fair trial.
We also reject defendant's argument that the combination of the court's purported errors and the misconduct of support persons so infected the trial as to deny him due process. As we have discussed, most of his arguments lack merit, and the court's only errors, regarding mother's role as a support person, were harmless.
V.
Defendant Was Not Denied Effective Assistance of Counsel.
Defendant next argues his trial counsel did not provide effective assistance by incompetently presenting a mistake-of-fact defense, presenting "the inconsistent, factually unsupportable, and irrelevant defense that [defendant] had erectile dysfunction," and not meaningfully cross-examining Jane. None of these arguments is persuasive.
A. The Relevant Legal Standard
A defendant asserting ineffective assistance of counsel bears a heavy burden. "Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time. [Citation.] A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
B. The Mistake-of-Fact Defense
Defendant first contends his trial counsel incompetently pursued a mistake-of-fact defense by ineffectively cross-examining Hailey and failing to call his mother as a witness.
With regard to Hailey, defendant contends his trial counsel should have impeached her with her previous, recorded statements to a defense investigator. Hailey told the investigator that she sometimes went into defendant's house late at night through a door that was left unlocked, entered his bedroom and went to sleep with him. Most often he was awake, playing video games, but there were times when he was in bed already. In her view, given their relationship, it was possible that if someone came in the room and laid in the bed with defendant he could think it was her. Told by the investigator of defendant's account of his mistake, Hailey said she could "definitely" see that he could have gotten into bed and thought he was touching her leg and vaginal area before realizing he had made a mistake, and that there were times when he did this to her. She "would never in a million years suspect" that defendant would intentionally want to touch Jane because he was "very protective" of her. She also indicated she was "skinny" like Jane.
Defendant's argument is based on a transcript of his investigator's recorded interview with Hailey that was attached to his new trial motion. We summarize the interview from this transcript.
Defendant contends Hailey's statements to the investigator contradicted her trial testimony that she told defendant she did not want to come over on the night of the third incident. According to defendant, this "went to the very heart of [his] defense at trial that he mistook Jane Doe for [Hailey]," and "completely undermined" the other evidence supporting his mistake of fact defense—defendant's statement to police that he believed Hailey was coming over that night and Jane's CIC statement that he may have mistaken her for Hailey.
Defendant also complains that trial counsel did not call his mother to testify, based on her declaration proffered with his new trial motion. His mother stated that Hailey and her daughter lived at defendant's home at least part time until a few days after July 7, 2012, that Jane wanted to sleep in defendant's room on July 7, and that Jane was upset because defendant told her to sleep downstairs because Hailey was coming over.
Defendant overstates the effect of these alleged failures by his counsel. First, Hailey's interview statements do not contradict her testimony that she told defendant on the night of July 7, 2012, she was not coming over to his house, because July 7 was not mentioned during her interview. Rather, the investigator told her the alleged incident took place on July 14 at three in the morning, and later mentioned July 9. It is unclear what date the investigator was referring to when he spoke of "that particular night, early in the morning," but he did not refer at all to July 7. Indeed, she told the investigator that at the time of the incident she and defendant "weren't together" and that the beginning of July "was the end" of their relationship.
Further, Hailey indicated in the interview that defendant could have mistaken Jane for her, and that she did not believe defendant would intentionally touch Jane in a sexual way. These statements also are not inconsistent with her testimony that she "didn't want to come over" and "wasn't coming over." This was particularly the case because by all accounts defendant was intoxicated on the night of the incident. That Hailey told defendant she was not coming over did not mean he could not have hoped or believed she would change her mind in such a condition.
Second, if defense counsel had tried to elicit from Hailey that it was "possible" defendant could have mistaken Jane for her, she would almost certainly have drawn a valid objection from the prosecutor that this was speculation. (See Simons, Cal. Evidence Manual (2017 ed.) § 3:32, pp. 267-268 ["If a witness is asked, for example, about the state of mind of another, the answer would be speculative and the question is objectionable"].) It was the province of the jury, not defendant's former girlfriend, to draw inferences about defendant's state of mind, and to accept or reject his defense that he mistook Jane for Hailey based on all of the specific facts that bore on that issue.
Defendant's mother's statements contained hearsay, the admissibility of which defendant does not explain, and in any event, defense counsel could reasonably have concluded the jury would not give much weight to her testimony.
Further, defense counsel presented a vigorous mistake-of-fact defense. This included evidence of physical similarities between Hailey and Jane; Hailey's testimony that she sometimes made her way at night to defendant's bed and fell asleep, whereupon he sometimes felt her leg and vagina and had consensual sex with her; and the testimony of defendant's witnesses that he loved his daughter and had never acted inappropriately towards her or other children. Defense counsel also argued this mistake-of-fact defense vigorously at closing.
Finally, we note that defendant's new trial motion did not proffer a declaration of trial counsel regarding her alleged ineffectiveness because, a newly retained attorney told the court, "her affidavit would not have supported us." From this we infer trial counsel made decisions about the testimony of Hailey and defendant's mother that she considered valid, further undermining defendant's argument.
In short, defendant has not demonstrated ineffective assistance of counsel in the presentation of his mistake-of-fact defense.
C. The Erectile Dysfunction and Other Defenses
Defendant claims trial counsel's pursuit of a defense on the sodomy charge based in part on defendant's erectile dysfunction was "ridiculous" because it was "inconsistent with [defendant's] mistake-of-fact defense," could constitute a defense only for the count four charge that he engaged in sexual intercourse or sodomy with Jane, and was not supported by some of the evidence. Instead, defendant argues, his counsel should have offered evidence "about how alcohol, or the combination of alcohol and Ativan, might affect a person's ability to perceive and their judgment," which would have bolstered his mistake-of-fact defense. We disagree.
First, there is no inconsistency between the claim that defendant suffered from erectile dysfunction and the claim that he mistook his daughter for his girlfriend: He could have mistaken her for Hailey and had erectile dysfunction.
Second, while the erectile dysfunction defense would not have barred conviction on six of the seven counts because they did not require penile penetration, it was a defense to count four, which alleged sexual intercourse or sodomy. This count, unlike the others, alleged a general intent crime that, as the jury was instructed, required that a mistake-of-fact be based on a reasonable mistaken belief. (People v. Givan (2015) 233 Cal.App.4th 335, 343 [for general intent crimes, mistaken belief must be both actual and reasonable]; People v. Pearson (1986) 42 Cal.3d 351, 355 [statutory sodomy requires general intent], overruled on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 650-651; see § 288.7, subd. (a).) Therefore, it is understandable that defense counsel pursued a separate erectile dysfunction defense to the sodomy charge.
Nor do we conclude that this erectile dysfunction defense was "ridiculous." The testimony of the urologist called by the defense, coupled with medical records, showed that in 1996, when defendant was 17 years old, he complained of impotence, including "inadequate erection," in 2007 he saw his primary care doctor for prostate problems, and that erectile dysfunction is associated with prostate issues.
It is true that, as the prosecutor argued in rebuttal, medical records also showed defendant was prescribed Viagra, that he had conceived a daughter and was thus able to have intercourse, and that Hailey testified she had sex with him. But the fact that a defense can be contradicted, in whole or in part, does not mean presenting it necessarily constitutes ineffective assistance of counsel, especially where it is not the sole or primary defense. Here, among other things, defense counsel also argued mistake-of-fact as to the sodomy offense; that there was no physical evidence of the sodomy; that defendant's drinking and medications would have prevented him from sodomizing Jane; that it was not physically possible for him to sodomize Jane given her stage of development and her testimony about her underwear being around her knees; that police did not preserve the recording they made of Jane's first statement to them and would have gathered his bedsheets to test them for secretions if she had said she had been sodomized and sexually penetrated; that Jane was suggestible, and by the time of the CIC interview she had discussed the incidents "over and over and over again"; that defendant had offered to take a polygraph test about whether he sodomized Jane; and that Jane stated she wanted to see her father at the CIC interview and "lit up" when she saw him in court, implying the opposite would have occurred if he had sodomized her.
Nor does defendant's contention that his counsel should have presented evidence about the effects of alcohol and Ativan establish that his trial counsel was ineffective. The effects of alcohol on a person's judgment are within the knowledge of most people, and further evidence was not necessary for the jury to assess the effects of extreme alcohol consumption on defendant's state of mind. While there was testimony that defendant had taken anxiety medications, including Ativan, there was no testimony that he took those medications on the date of the incident. He has not met his burden to show ineffective assistance in this regard either.
D. The Cross-Examination of Jane Doe
Finally, defendant contends his counsel, "[a]t a minimum . . . should have[] elicited from Jane Doe that on July 7, 2012, [defendant] had told her she had to sleep downstairs because he was expecting [Hailey] to come over that night." Further, he should have highlighted certain things said by her in her hearsay statements that supported his mistake-of-fact defense. This argument is also unpersuasive.
First, defense counsel's cross-examination of Jane elicited evidence that supported defendant's mistake-of-fact defense. She succeeded in getting Jane to draw "all of the beer bottles" that defendant had imbibed on the night of the third incident and elicited Jane's description of her father that night as "[d]runk." She brought out Jane's recollection that she told the forensic interviewer her father mistook her for "[h]is girlfriend, Hailey." She also brought out the fact that Jane had said her father previously was going to touch her, when she slapped his hand and said "Dad, it's me."
Defense counsel also suggested to the trial court her reason for not probing more deeply during her cross-examination of Jane. During closing argument, after stating the prosecutor had brought Jane to tears by asking her to say things against her father on the stand just before inviting cross-examination, defense counsel asked the rhetorical question, "I can go traumatize this child?" This reflected a concern that the jury would have viewed further probing unsympathetically. Also, defense counsel could not have known what Jane would say two years after her last statements, much less whether it would be helpful or harmful. As one commentator has written, "[c]ross examination is always risky, and when child witnesses are involved, the risks are multiplied. . . . If the jury thinks that the cross-examiner is taking advantage of the child or being mean, they may react very negatively. . . . The dangers accompanying cross-examination raise the question of whether the need to cross-examine outweighs the risks." (Myers, The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment (1987) 18 Pac. L.J. 801, 877.) Given the risks, defense counsel's cross-examination decisions were entirely reasonable.
VI.
Defendant's Claim That Most of His Convictions Are Not Supported by Sufficient
Evidence Lacks Merit.
Defendant also contends his convictions for count one and counts three through seven are not supported by sufficient evidence. We disagree.
To evaluate an insufficient evidence claim, " 'we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) We focus " 'on the whole record . . . , rather than on " 'isolated bits of evidence.' " ' " (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) Reversal is required only if " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.) Nonetheless, "a reasonable inference from the evidence ' " 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sanford (2017) 11 Cal.App.5th 84, 91-92.)
A. Count One
Defendant argues that the evidence does not support the element of sexual penetration required for a count one conviction. We disagree.
In count one, defendant was alleged to have violated section 288.7, subdivision (b), which makes it a felony for a person 18 years of age or older to "engage[] in oral copulation or sexual penetration, as defined in section 289, with a child who is 10 years of age or younger." Section 289, subdivision (k)(1) defines "[s]exual penetration" as "the act of causing the penetration, however, slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument or device, or by any unknown object." Subdivision (k)(2) defines "[f]oreign object, substance, instrument, or device" to "include any part of the body, except a sexual organ."
The prosecutor explained during closing argument that count one was based on Jane Doe's statements at the CIC interview that defendant penetrated her vagina with his finger during the first incident. Defendant quotes and cites selectively from the interview, focusing on Jane's statements that he "didn't touch my front butt. He only met my back butt," and that she "didn't feel [his finger] go in the hole" and that it did not go into her hole. We do not agree that these statements preclude a determination that there is substantial evidence of genital penetration from the interview. It is evident from the rest of the interview (as well as her statement to her mother), that Jane was saying defendant fingered her genital area, and not her "back butt." For example, Jane said that defendant touched her "front butt," which she described as the part of her body she used to pee, that his finger "went into [her] front butthole, but . . . just like, a little," that he didn't try to "put his finger in all my front butthole," that after he wet his finger "he put it back in there," that it went on for three or four minutes, and that "it hurt." (Italics added.) This is substantial evidence that defendant's finger penetrated at least Jane's outermost genital opening; her statements indicating his finger did not go "into the hole" could reasonably mean her vaginal canal.
Such a penetration was sufficient to support defendant's count one conviction, as our own research indicates. Division Four of this court held in People v. Quintana (2001) 89 Cal.App.4th 1362 (Quintana), that penetration of the external genital organs, including the outermost labia majora, is sufficient to constitute sexual penetration as defined in section 289. Citing People v. Karsai (1982) 131 Cal.App.3d 224, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, the court held that penetration of the vagina is not required. (Quintana, at p. 1366.) The Karsai court held there was sufficient penetration under the rape statute (§ 263) where the defendant's penis was between the victim's labia majora and minora, and at the entrance to her vagina, but did not penetrate the vagina. (Quintana, at p. 1366 citing Karsai, at pp. 232-233.) The Quintana court adopted this view for purposes of section 289. (See also People v. Paz (2017) 10 Cal.App.5th 1023, 1037-1038 [adopting similarly broad interpretation of the anal opening].)
Defendant's interrogation statements buttress our conclusion. He admitted touching "the front of her pussy" and then "goin' like that a little bit." We do not have a recording of the interview, but we infer from this statement some amount of penetration, as does his statement that he might have pulled his finger out and put it in his mouth. These statements, along his description of his sexual interaction with Hailey, suggest he was trying to arouse Jane, which in turn suggests his finger went past her labia majora.
B. Count Three
Defendant argues there was insufficient evidence that he touched Jane Doe as required to be convicted of count three. We again disagree.
Count three alleged defendant committed a lewd act on Jane. The prosecution based it on the second incident, in which Jane said defendant tried to pull down her pants and she slapped his hand away. Section 288, subdivision (a) provides in relevant part: "[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, 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." Thus, the offense has two elements: " ' "(a) the touching of an underage child's body (b) with a sexual intent." ' " (People v. Villagran (2016) 5 Cal.App.5th 880, 890.) " 'Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.' " (People v. Shockley (2013) 58 Cal.4th 400, 404.)
Defendant argues Jane's statement to her mother that her father grabbed her from behind and her CIC statement that he tried to pull down her pants before she slapped him and he stopped "at most" shows an "attempted touching." We disagree. Many kinds of touching have been held sufficient to meet the first element of section 288, subdivision (a). Indeed, in People v. Levesque (1995) 35 Cal.App.4th 530, Division One of this court held that a defendant's contact in placing a child over his knees and pulling down her pants satisfied the touching requirement where there was other evidence of defendant's intent. (Id. at p. 543.) Here, whether defendant grabbed Jane or attempted to pull down her pants, either act, or both together, sufficed to meet the touching element of the lewd act charge.
Defendant also argues there is no evidence of lewd intent. Again we disagree. This was the second time defendant touched Jane. The first time, he touched her "front butt" for three to four minutes, and then pulled up her pants. The third time, he pulled down her pants and touched her both in front and behind. This is sufficient evidence to show sexual intent in the second incident. The jury could reasonably infer from his attempt to pull down her pants that he intended to arouse himself, Jane, or both.
C. Counts Four Through Seven
Next, defendant argues there was not "substantial evidence of any actual, let alone three acts of penetration" needed for convictions on counts four through six, or of the lewd conduct needed for a conviction on count seven. This too is incorrect.
The People based all four of these counts on the third incident. They were one charge of sexual acts (intercourse or sodomy) with a child of 10 or younger (§ 288.7, subd. (a)), two counts of sexual acts (oral copulation or sexual penetration) with a child of 10 or younger (§ 288.7, subd. (b)), and one count of a lewd act on a child under 14 (§ 288, subd. (a)) with substantial sexual conduct (§ 1203.066, subd. (a)(8)). As the prosecutor further stated, "this is the penetration of the vagina with his finger, the penetration of her vagina with his penis, and the penetration of her anus or the rectum with his penis twice."
Regarding the issue of penetration, defendant contends, Jane Doe "said only that [defendant] had tried to insert something into her vagina, not that he had actually penetrated her vagina, even slightly. As to anal penetration, her statements were inconsistent," sometimes indicating he "tried to put something in her butt, and he might have inserted something into her butt" and "den[ying] that [defendant] had poked her."
Defendant's contention rests on two false premises: first, that penetration requires his finger or penis to enter the vaginal or anal canal; and second, that Jane's various descriptions of what happened in the third incident are inconsistent in a way that creates reasonable doubt as a matter of law. As to the first premise, we have already discussed penetration in the context of genitalia, and the law is similar regarding sodomy. The slightest touching beyond the labia majora or the anal opening suffices. (Quintana, supra, 89 Cal.App.4th at p. 1336; People v. Paz, supra, 10 Cal.App.5th at pp. 1037-1038.)
As for defendant's second premise, Jane told the CIC interviewer her father touched her front butt with his fingers for about five minutes, his finger went in her front butt, and it really hurt and caused her to cry. He tried to go in the hole with his finger but it didn't work, and it felt really bad. He touched her front butt and then put his finger in his mouth and made some eating sounds. Later, he tried to put his front butt in her front butt, but it did not work. These statements indicate defendant's finger and penis went beyond Jane's labia majora, which is all that is required to show vaginal penetration.
Regarding the sodomy charges, Jane told the CIC interviewer that defendant turned her around and started to touch her butt and her butthole and he put something in there and she thought it was his front butt. Her back butt hurt. He moved her and tried but failed to put it in her front butt. Then he put her back and put something back in her butthole for about ten minutes; she knew it was his front butt rather than his finger because she felt both his hands grabbing her. Her front butt and back butt hurt after he was done. She repeatedly stated that defendant put what she thought was his front butt "in my butthole" and it went "in my butthole." These statements are ample evidence that defendant's penis penetrated beyond Jane's anal opening, which is all that is required for penetration.
The testimony of mother and Drolette provided further evidence of penetration. Her mother testified that Jane said she thought something went in her butt. Further, Drolette testified that Jane said that defendant hurt her front butt when he inserted his fingers into her and that she felt something go into her butthole.
Defendant relies on a colloquy between Jane and the CIC interviewer about whether defendant "poked" her with his penis. In the colloquy, Jane was asked what she had previously said. She denied that she had said her father was poking it, but reiterated that "he was trying to like, trying to put it in my butthole." The interviewer followed up with the question "Trying to put it in your butthole? Okay. And then um, so did it go into your butthole?" Jane answered affirmatively, "Mm-hmm." Shortly after that, she said, "After he couldn't . . . do it [put it in her front butt]. So h-he put the thing back in my butthole and that it probably lasts for ten minutes. Then he got it out . . . ." (Italics added.) Thus, the colloquy in its entirety actually provides evidence of penetration rather than refuting it.
Finally, defendant argues the evidence was insufficient to establish lewd intent, as required for the lewd conduct charge in count seven, because it showed he was "drunk, and not fully awake or conscious, and that he believed it was [Hailey] who was in the bed with him, as even Jane Doe suggested." We disagree. The only evidence that defendant was "not fully awake or conscious" was his statement to police, which the jury was not required to credit. And the evidence that defendant drank a lot and was intoxicated permitted, but did not require, the jury to find he acted without the requisite intent. As our high court has observed, "Evidence of intoxication, while legally relevant, may be factually unconvincing. '[A]s with any evidence, the jury may give this testimony whatever weight it deems appropriate in light of the evidence as a whole.' " (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) The nature of defendant's sexual acts, that count seven was part of the third incident in which he touched Jane in a sexual manner, and that defendant focused his attention on her vaginal and anal areas were all evidence the jury could consider in determining whether he acted with intent to sexually gratify. Also, the evidence that he was a habitual drinker and had sex with Hailey allowed the jury to reasonably infer that he could act with the intent to gratify when intoxicated.
The court instructed: "You may consider evidence, if any, of the defendant's voluntary intoxication . . . only in deciding whether the defendant acted with the specific intent or mental state required as set forth below. [¶] . . . [¶] In connection with the charge of lewd act upon [a] child under the age of 14, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent of arousing, appealing, or gratifying the lust, passion, or sexual desire of himself or the child."
In short, substantial evidence supports all of these charges against defendant.
VII.
Defendant Has Not Shown He Was Denied Due Process or a Fair Hearing on His New
Trial Motion.
Defendant has raised on appeal several of the arguments that he raised below in his motion for new trial, in which he argued that his confrontation rights were violated, errors in regard to the support people rendered his trial unfair and that his counsel provided ineffective assistance. He also contends on appeal that the trial court denied him due process by declining to allow him to put his former attorney on the stand and cross-examine her to support his claim of ineffective assistance of counsel. He cites People v. Reed (2010) 183 Cal.App.4th 1137 (Reed) and People v. Mejía (2008) 159 Cal.App.4th 1081 (Mejía), disapproved on other grounds in People v. Sanchez (2011) 53 Cal.4th 80, 90, fn. 3, for the proposition that the court was required "to conduct a Marsden-type hearing (People v. Marsden (1970) 2 Cal.3d 1180), and to carefully inquire into the defendant's reasons for claiming incompetence." We reject all of these contentions.
A Marsden hearing is required "at any time during criminal proceedings, if a defendant requests substitute counsel," to allow the defendant "an opportunity to state any grounds for dissatisfaction" with counsel. (People v. Sanchez, supra, 53 Cal.4th at p. 90.)
Reed and Mejía do not help defendant. Reed told his trial counsel at sentencing that he wanted to make a new trial motion based on that counsel's ineffective assistance, and counsel told the court. (Reed, supra, 183 Cal.App.4th at pp. 1141-1142.) The court informed Reed it could not consider such a motion and that his appellate counsel could review the issue. (Id. at p. 1142.) Our colleagues on Division Five of this court reversed "with directions to the trial court to make further inquiry into Reed's claim of ineffective assistance of counsel." (Id. at p. 1149.) They further directed that after such inquiry the trial court should determine whether "good cause exists for appointment of new counsel to fully investigate and present defendant's motion for new trial." (Id. at pp. 1149-1150.)
Mejía, like Reed, was a case in which the defendants' trial counsel informed the court their clients wished to move for a new trial motion based on their counsel's ineffectiveness at trial. (Mejía, supra, 159 Cal.App.4th at p. 1084.) As in Reed, the trial court did not hold a Marsden hearing to determine whether defendants had colorable bases for claiming their trial counsel performed incompetently, and the appellate court found this was error. (Mejía, at pp. 1085-1088.)
Reed and Mejía do not hold, as defendant contends, that "[w]hen a defendant moves for a new trial based on ineffective assistance of counsel, the trial court has a duty to conduct a Marsden-type hearing . . . , and to carefully inquire into the defendant's reasons for claiming incompetence." They hold only that when a defendant makes known to the court that he believes his counsel was ineffective and seeks new counsel to address that issue, the court must provide an opportunity, in camera if necessary, for the defendant to explain why he believes he was not adequately represented so that the court can determine whether appointment of new counsel is warranted. Nor does defendant cite any case requiring trial courts to conduct an evidentiary hearing on such a motion, particularly when trial counsel does not sign a declaration admitting he or she was ineffective.
The Reed court indicated that at the Marsden hearing, the court must elicit the defendant's ineffective assistance contentions and, " '[i]f the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial," rule on the motion for new trial without substituting new counsel, or "[i]f . . . the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, . . . substitute new counsel to develop the claim . . . .' " (Reed, supra, 183 Cal.App.4th at p. 1144.)
Also, unlike the defendants in Reed and Mejía, defendant was not denied new counsel who could evaluate the effectiveness of trial counsel and, if appropriate, file a new trial motion asserting ineffective assistance. Defendant's family had retained new counsel for him in July 2014, a month after trial and more than three months before that counsel filed a new trial motion on his behalf. At counsel's request, the court continued the October 2014 hearing date on that motion until December 2014. By the time she filed the new trial motion at the end of October 2014, defendant's new counsel had received and examined his trial counsel's file, portions of which she submitted with the motion, reviewed portions of the reporter's transcripts of the trial, and prepared declarations from defendant's mother and defendant in support of the motion. Thus, defendant's new counsel plainly had time to investigate and prepare a new trial motion based, among other things, on a claim of ineffective assistance.
Finally, unlike in Reed and Mejía, the trial court here received briefing and evidence regarding defendant's ineffective assistance claim and inquired into the factual bases for defendant's ineffective assistance claim at the hearing. New counsel did not offer a declaration from trial counsel, instead admitting such a declaration would not have supported defendant's claim, but stated she wanted to call trial counsel, whom she had subpoenaed, as a witness so she could examine her about her trial tactics. The court did not permit her to do so but asked counsel what facts would show counsel's performance was deficient. Counsel provided extensive responses to the court's inquiries with specific examples of allegedly ineffective assistance, much of which we have already discussed.
We also find no merit in defendant's contention that the court "was not fair and impartial in ruling on the motion for new trial, but rather, was dismissive of [defendant's] arguments, and was hostile to [defendant] and the undersigned." The court's statements, such as about cross-examination of trial counsel and the evidence defendant claimed trial counsel should have offered, do not demonstrate unfairness or partiality. --------
In short, defendant was not in any way deprived of new counsel to investigate a new trial motion, and there was simply no Marsden issue in this case.
VIII.
The Trial Court Erred in Denying Defendant Pre-Sentence Conduct Credits.
Defendant contends he was entitled to pre-sentence conduct credits of 15 percent of actual time served under section 2933.1, or 129 days, and that the trial court erred in denying them on the ground that he was sentenced to an indeterminate life sentence. The People do not contest this error. We agree that the court erred. (See §§ 2933.1, 4019; People v. Brewer (2011) 192 Cal.App.4th 457, 460-465.)
DISPOSITION
The case is remanded with directions to the court to modify the abstract of judgment to reflect 129 days of conduct credits in addition to the 864 days of custody credits previously awarded, and provide a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.