Opinion
E063856
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. CASEY ALAN TREMBLAY, Defendant and Appellant.
Law Office of Stanley W. Hodge and Stanley W. Hodge for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1300692) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions. Law Office of Stanley W. Hodge and Stanley W. Hodge for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Casey Alan Tremblay appeals his conviction on one count of lewd act on a child of 14 or 15 years, one count of dissuading a witness and one count of interference with a wireless communication device. Defendant raises several issues, none of which have merit. We must, however, remand the cause for resentencing because the trial court failed to impose sentence on count 3.
PROCEDURAL HISTORY
An information charged defendant with one count of lewd act on a child of 14 years (count 1; Pen. Code, § 288, subd. (c)(1)); one count of dissuading a witness from arresting another for a crime (count 2; § 136.1, subd. (b)(3)); and one misdemeanor count of interference with a wireless communication device (count 3; § 591.5).
All further statutory citations refer to the Penal Code, unless another code is specified.
A jury found defendant guilty on all counts. The court imposed a sentence of two years on count 1 and a consecutive term of eight months on count 2.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
The victim in all three counts was identified in court simply as G. G. was 14 years old at the time of the incidents.
G.'s mother arranged to have her spend the evenings of Friday, September 7, 2012, and Saturday, September 8, 2012, at defendant's home in Hesperia. Defendant was G.'s godfather, and she thought of him as her uncle. Defendant's two children, R. and M., who were at that time 12 years old and eight years old respectively, were also staying with defendant that weekend. G. was close to both children and considered them cousins.
On Friday evening, defendant planned to take G. and M. to a gymnastics class. Before they left, the two girls changed into their outfits, which consisted of a pair of shorts worn over a pair of leotards. After they had finished changing, defendant came into the bedroom, turned G. around, and lightly pushed her over the frame at the foot of the bed. Defendant then began to fondle G.'s buttocks, rubbing and slapping them for about 30 seconds. During that time, defendant observed how short G.'s shorts were and how big her "butt" was getting. Although G. was confused by what defendant had done, she tried to laugh it off.
As defendant was driving G., M., and R. to the gymnasium, he decided to stop at a convenience store in order to purchase an 18-pack of beer. After the gymnastics class, defendant complimented G. on her performance and also commented favorably on the appearance of her butt.
Back at home, G. and M. participated in an improvised "fashion show," where they tried on clothes they thought they might wear on a planned trip to a mall the following day. Defendant came into the bedroom during the fashion show and touched G.'s hips and torso. Defendant also touched the area beneath her breasts while he asked G. whether she would need to wear a "strapless bra" with the top she had tried on.
Defendant testified that he thought G. was dressing provocatively and that he was concerned.
Later that evening, the children had placed two air mattresses on the living room floor between the television and the couch. G. and M. watched R. play video games, while defendant worked on his computer on one end of the couch. G. saw defendant drink at least six cans of beer during that time. M. and R. eventually fell asleep on the air mattresses. At that point, G. was leaning or lying on the opposite end of the couch from defendant, playing a word search puzzle game on R.'s iPad. Soon defendant inserted himself between G. and the back of the couch, so that he was "spooning" her. Defendant began to compliment G. on how well she was playing the game. One of the clues in the puzzle was the word "bust." Every time G. said that word, on at least five separate occasions, defendant responded by saying, "Like these," and then either tapped or placed his hand on her left breast. G. laughed, but only because it made her uncomfortable.
Defendant then began to stroke G.'s left thigh, and at one point he put his hand between her legs. G. thought that was "weird" and she told defendant to stop. Defendant immediately apologized, and claimed that he did not know he was doing anything wrong. Almost immediately, however, defendant did it again. G. said sternly, "I do not like this. Stop." After a second apology, and another brief passage of time, defendant started rubbing the inside of G.'s thigh and her genitals, over her clothing. He also began to lift up and pull down the waistband of G.'s pants.
At that point, G. started yelling and crying, as she rolled off the couch onto the floor and wrapped herself in a blanket in order to protect herself. This woke R., and G. took the opportunity to grab his cell phone. G. was unable to contact her mother with the phone, and so she ran to the dining room table and grabbed her brother's iPad, which was sitting on top of it. G. yelled that she was going to use it to text her mother. Defendant began to chase her around the table, told G. she needed to "calm down" before contacting anyone, and finally grabbed the iPad away from her. Defendant reminded G. that her parents were away for the weekend and that it was too late to call her grandmother.
G. did not have a phone of her own because she had broken it a few weeks earlier by throwing it across the street during a fight with her mother. She had brought her brother's iPad with her.
R. and defendant testified that G. had the opportunity to take the cell phone into the bathroom for 10 to 15 minutes. G. recalled hiding in the bathroom at one point that evening, but she could not remember when.
Defendant offered to drive G. to her grandmother's house, but she did not want him to do so because he was drunk and she did not want to be alone in the car with him.
Eventually, defendant began to talk to G. and R. about how he himself had been molested as a child. G. asked defendant why he had touched her inappropriately if that had happened to him. Defendant simply replied, "You're a strong girl." At that point, defendant also produced a baseball bat and offered to allow G. to hit him on the head with it. G. responded, "Hurting you will not make me feel better."
Defendant then told G. that he was going to stop drinking. He dumped his can of beer out in the sink. Defendant next gathered several different bottles of alcohol from around the house, and he had G. and R. empty all of them. G. decided not to call or otherwise contact her mother at that point because defendant had said that if she did, she and defendant's children would not be friends anymore and their lives would be ruined. He also said that his children would hate her because they would be forced to live with their mother.
The rest of the evening passed without further incident. The next morning, defendant acted as though nothing had happened. As planned, they stopped at G.'s grandparents' home, where she picked up the garage door opener for her mother's home. At her mother's home, she picked up a bathing suit. From there, they went to a mall where the children spent time playing video games. During that time, G. told defendant that she was going to tell M. what had happened to her. Defendant again tried to discourage G. from doing so.
Although her grandparents were at home, G. did not tell them about the molestation because she was thinking about what defendant had said about ruining all of their lives.
When they were inside a store called Hot Topic, G. asked defendant if he would buy some earrings for her. Defendant texted G.'s mother and asked her if she had any objections. He allowed G. to text with her mother on his phone, but he watched what she was texting. G. testified that defendant was watching what she was saying. G. told defendant that her mother did not want her to have the earrings. He bought both her and M. some other items of jewelry. They later passed a kiosk, where G. asked defendant if he would buy her an iPhone. He refused. G. testified that she was joking.
R. and defendant testified that G. had also asked defendant to buy her a pair of shoes while they were at Hot Topic. Defendant refused because he thought the shoes were "inappropriate."
Defendant testified that G. was trying to blackmail him, insinuating that she would not tell about the molestation if he bought her the things she wanted.
They next went to the home of defendant's parents, where G. went swimming with R. G. told R. that she wanted to tell M. what had happened to her. That upset R., and he climbed out of the pool. After that, G. helped defendant's mother make cupcakes. G. told defendant's mother that they had dumped out a lot of alcohol the night before while at defendant's house. When it became clear to G. that defendant's mother was unconcerned about the incident, she thought that defendant's mother would not believe her if she revealed the molestation, so she decided to keep it to herself.
G. also spent the next night at defendant's house, but defendant left her alone. G. woke up the next morning near the time her mother and stepfather were scheduled to pick her up. Before they arrived, defendant asked G. to come outside to the patio with him. Defendant again pleaded with G. not to disclose what happened because it would ruin their lives, her mother would no longer be friends with defendant, and she would never be able to see his children again because they would be forced to stay at their mother's house. Defendant made G. promise that she would keep it all a secret.
After G.'s mother and stepfather brought her home, they could tell that she was upset. After some questioning, G. told them that defendant had molested her.
G.'s mother contacted a deputy sheriff, who later referred the matter to Detective Paul Bader. Detective Bader conducted interviews with both G. and defendant that evening. Defendant was arrested at the conclusion of his interview. A deputy district attorney who was initially assigned the case also interviewed G., on February 27, 2014.
LEGAL ANALYSIS
1.
HEARSAY OBJECTIONS TO THE RECORDINGS AND THE TRANSCRIPTS OF
THE VICTIM'S INTERVIEWS WERE FORFEITED
Defendant contends that the court erred by allowing the prosecutor first to play the entire tape of the victim's interviews with Detective Bader and with the deputy district attorney and then allowing the jury to read a transcript of the interviews. He contends that both the tape and the transcript were inadmissible hearsay. However, as he acknowledges, defense counsel did not object to either item. Any issue pertaining to the admissibility of evidence must be preserved for appellate review by a timely objection to the evidence, on the same ground sought to be raised on appeal. (Evid. Code, § 353, subd. (a); People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved in part on an unrelated ground by People v. Williams (2010) 49 Cal.4th 405, 459.) In the absence of such an objection, appellate review is forfeited. (People v. Kennedy, at p. 612.)
2.
DEFENDANT HAS NOT SHOWN PREJUDICE FROM ANY ERROR IN
ADMITTING EVIDENCE OF PRIOR MISCONDUCT
Defendant argues that the court erred when it ruled in limine that evidence that he had committed sexual battery against two adult women by touching their buttocks against their will was admissible. However, neither of the two women testified, and defendant does not directly address how he was prejudiced by this ruling. He does contend, in his reply brief, that he "had no choice" but to testify to address his police interview, which was played for the jury, in which it was discussed whether he had inappropriately grabbed women in the past. Defendant did not object to its admission nor, as far as we are aware, did he seek to have the interview redacted to exclude that portion. We are therefore not persuaded that he preserved any issue pertaining to that evidence for review. (See People v. Kennedy, supra, 36 Cal.4th at p. 612.)
Moreover, even if the issue has been preserved and error has been shown in the admission of either the evidence addressed in the motion in limine or the police interview, defendant has not met his burden to affirmatively demonstrate prejudice arising from the alleged error. The erroneous admission of evidence of prior misconduct is not per se reversible. Rather, a defendant must show how the error resulted in a miscarriage of justice. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; People v. Coley (1997) 52 Cal.App.4th 964, 972 [defendant has the burden to show both error and prejudice].) By failing to do so, defendant has forfeited the issue.
3.
THE PROSECUTOR DID NOT IMPERMISSIBLY INVADE DEFENDANT'S
ATTORNEY-CLIENT PRIVILEGE
During her cross-examination, the prosecutor attempted to ask defendant whether he had conferred with his attorney concerning his testimony. Defendant contends that this was misconduct, which requires reversal because it undermined his constitutional right to counsel and invaded his attorney-client privilege.
The issue arose as follows: After asking defendant whether he had had the opportunity to review the videotape of his interview with Detective Bader, copies of the police reports, and a transcript of the preliminary hearing testimony, the prosecutor asked, "And before you came in to testify today and on Thursday, did you meet with your attorney to . . . ?" Defense counsel interrupted the question and objected on grounds of "[a]ttorney-client privilege." The prosecutor then asked, "Let me ask you, did you rehearse any of the testimony . . . ?" Defense counsel interjected, "Same objection, your Honor."
Defense counsel asked to approach the bench. The following colloquy ensued:
"[Defense Counsel]: She knows better than to ask those questions. That is attorney-client privilege. What we did in preparation for trial is completely privileged.
"[The Prosecutor]: I wasn't planning on asking specifically what was said. All I want to know is if he's practiced his testimony. I'm not even going to ask him if it was with you or his wife or his kids. It's, did he practice his testimony?
"[The Court]: I think that's a fair question. Unfortunately the preceding question that you asked is one that seems to carry the inference that he might have practiced it for his lawyer. So you are going to have to try to find a way to take it out of that context. [¶] Something like, other than in a meeting with your lawyer, have you practiced your testimony, or something of that nature is fine.
"[The Prosecutor]: Okay. I will do that.
"[Defense Counsel]: I also object, but I understand."
Next, the prosecutor asked, "Did you spend any significant amount of time preparing for your testimony?" After defense counsel said, "Same objection, your Honor," the prosecutor replied, "I haven't finished my question." The court responded, "So start it again." The prosecutor then asked, "Without your attorney present, did you spend any time preparing for your testimony?" Defense counsel did not object, and defendant answered, "I've spent many hours throughout the years going over what happened without my attorney, yes, that's correct."
Although defendant objected on grounds of attorney-client privilege, he did not specifically object on grounds of prosecutorial error or misconduct. A claim of prosecutorial misconduct or error is preserved for appeal only if a defendant objects in the trial court on the same ground sought to be addressed on appeal and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor's action. (People v. Medina (1995) 11 Cal.4th 694, 761.) There is no indication that an admonition would have failed to cure whatever prejudice might have resulted from the prosecutor's questions in this case. Accordingly, the Attorney General contends, the claim is forfeited. She also contends that, should we determine that the claim was preserved for review, defendant has not shown that the questions did violate his attorney-client privilege or if, it did, that defendant has not shown prejudice.
We will assume that defendant's objection that the question violated his attorney-client privilege and his argument that the prosecutor "kn[e]w better" than to ask such a question was sufficient to alert the trial court that the objection included a claim of prosecutorial misconduct or error and to preserve the claim for appellate review. The trial court found the question objectionable on the ground defendant asserted. Accordingly, because defendant did not request an admonition to the jury, the question is whether defendant has demonstrated that an admonition would not have cured any prejudice resulting from the improper question. (People v. Medina, supra, 11 Cal.4th at p. 761.) Defendant does not address that issue.
In any event, we find no prosecutorial error or misconduct. "'A prosecutor is permitted wide scope in the cross-examination of a criminal defendant who elects to take the stand. [Citation.]'" (People v. Wilson (2005) 36 Cal.4th 309, 335 (Wilson).) Cross-examination of a defendant about interactions with his or her attorney is not necessarily improper.
In Wilson, the court found no impropriety or invasion of the attorney-client privilege where the prosecutor questioned the defendant about his discussions with counsel: "The prosecution here did not suggest that defendant's discussions with counsel or his review of discovery material were 'nefarious.' Instead, the prosecution's questions sought to undermine defendant's trial testimony denying liability for the murder, which differed from defendant's inculpatory statements to the police. The Attorney General argues the prosecution properly wanted to show that defendant had an opportunity to conform and falsify his trial testimony given his knowledge of the law. We agree with the Attorney General that the prosecution's questions were within the wide scope of permissible cross-examination. [Citation.] [¶] Also, by asking defendant whether he 'remembered anything else' after speaking to his attorney, the prosecution did not commit misconduct. Given defendant's inconsistent testimony regarding whether he and [his accomplice] had discussions after fleeing the murder scene, the prosecution was entitled to question his ability to recall the events. [¶] Nor did the prosecution invade privileged attorney-client communications. The prosecution pointed out that defendant told his prior attorneys at least four different versions of what happened. In its questioning, the prosecution also noted that defendant had 'been advised by your attorneys of what was going to happen when you came into court,' that he 'had a chance over all these years, particularly the last six, to prepare and anticipate that,' and that he 'certainly talked to your present attorneys about this case at length.'" (Wilson, supra, 36 Cal.4th at pp. 335-336.)
The single question the prosecutor attempted to ask in this case, which referred to defendant's possibly meeting with his attorney, was far more innocuous than the questions the Supreme Court found acceptable in Wilson, supra, 36 Cal.4th 309. Even if the prosecutor had been able to complete her question to ask if defendant had met with his attorney to rehearse his testimony, in the absence of any question as to any substantive matters they had discussed, it does not amount to impermissible cross-examination or an invasion of defendant's attorney-client privilege.
4.
DEFENDANT HAS NOT SHOWN INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was deprived of his constitutional right to the effective assistance of counsel because his attorney failed to object to the admission of recordings of the victim's interviews with police and with the prosecutor.
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objective standards of professional competence and that defendant was prejudiced by counsel's failure. (Strickland v. Washington (1984) 466 U.S. 668, 691-692.) Prejudice requires a showing that it is reasonably probable that the outcome would have been more favorable to a defendant in the absence of counsel's failings. (Id. at pp. 694-695.) Here, defendant has made no attempt to demonstrate prejudice. We may, and we do, reject his argument for this reason alone. (Id. at p. 697.)
Defendant filed a petition for writ of habeas corpus raising the same contention of ineffective assistance of counsel (case No. E065828), which we ordered considered with this appeal. He also asserted the invasion of his attorney-client privilege, which we have addressed above. We have denied the petition by separate order. --------
5.
THE MOTIVE INSTRUCTION WAS PROPERLY GIVEN
CALCRIM No. 370 provides that the prosecution is not required to prove that a defendant had a motive to commit any of the crimes charged. Defendant contends that with respect to all three of the crimes charged in this case, the instruction "is just plain wrong." Although he states that he is aware that there is a distinction in law between motive and specific intent, he goes on to argue just the opposite—that the specific intent element of each of the three offenses is the equivalent of motive. He asserts that "[n]o layman is in a position to understand the fine distinction between motive and specific intent in a sex case." It is well established, however, that in the ordinary case, the instructions do not conflict.
In People v. Hillhouse (2002) 27 Cal.4th 469, the California Supreme Court held that in all but exceptional cases, the instruction on motive does not conflict with the instruction on specific intent: "[A]lthough malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not an element. 'Motive, intent, and malice—contrary to defendant's assumption—are separate and disparate mental states. The words are not synonyms. Their separate definitions were accurate and appropriate.' [Citation.] Motive describes the reason a person chooses to commit a crime. The reason, however, is different than a required mental state such as intent or malice." (Id. at pp. 503-504.) In the ordinary case, as long as the instructions as a whole do not use "motive" and "intent" interchangeably, there is no reasonable likelihood that the jury would understand the terms to be synonymous. (People v. Cash (2002) 28 Cal.4th 703, 739.)
In People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes), the court rejected the contention CALCRIM No. 370 conflicted with the pattern instructions for criminal street gang participation and lessened the prosecution's burden of proof. (Fuentes, at p. 1139.) The court concluded, "[a]n intent to further criminal gang activity is no more a 'motive' in legal terms than is any other specific intent. We do not call a premeditated murderer's intent to kill a 'motive,' though his action is motivated by a desire to cause the victim's death. Combined, the instructions here told the jury the prosecution must prove that [the defendant] intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. [The defendant] claims the intent to further criminal gang activity should be deemed a motive, but he cites no authority for this position. There was no error." (Id. at pp. 1139-1140.)
The Fuentes court went on to explain: "If [the defendant]'s argument has a superficial attractiveness, it is because of the commonsense concept of a motive. Any reason for doing something can rightly be called a motive in common language, including—but not limited to—reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing a murder: A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind that reason. The jury instructions given here, however, were well adapted to cope with the situation. By listing the various 'intents' the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the prosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror." (Fuentes, supra, 171 Cal.App.4th at p. 1140.)
The only case of which we are aware in which a court found a conflict between the motive and intent instructions is People v. Maurer (1995) 32 Cal.App.4th 1121. Maurer held that the standard motive instruction was erroneous when given in conjunction with an instruction on section 647.6, which prescribes punishment for "[e]very person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child" where the conduct would be an offense if the other person really were a child. In Fuentes, the court explained why Maurer is distinguishable: "Since this offense [i.e., violation of section 647.6] includes a 'motivation' as one of its elements, a jury naturally would be confused by an instruction saying the prosecution need not prove the defendant's motive. Due to this peculiarity in the definition of the offense (the Maurer court called the section 'a strange beast' (People v. Maurer, supra, 32 Cal.App.4th at p. 1126)), the combination of instructions could not successfully tell the jury where to cut off the chain of reasons for the defendant's action which the prosecution had to prove. If section 647.6 referred to, say, persons acting 'with an intent to gratify an unnatural or abnormal sexual interest in children' instead of a motivation, the standard motive instruction would have been no more problematic than it is here." (Fuentes, supra, 171 Cal.App.4th at p. 1140.)
We agree with the reasoning of Fuentes, supra, 171 Cal.App.4th at pages 1139 through 1140, and find it fully applicable here. Accordingly, we reject defendant's argument.
6.
RESENTENCING IS REQUIRED
As defendant notes, the court did not impose sentence on count 3, despite the guilty verdict. Accordingly, we will remand the cause for resentencing.
DISPOSITION
The cause is remanded for resentencing. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.