Opinion
No. C-0O-2275 TEH
November 25, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter arises from Jimmie Lee Bills' 1994 conviction in the Contra Costa County Superior Court. Bills filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having carefully considered the parties' papers. the petition will be denied for the reasons set forth below.
FACTUAL BACKGROUND
The California Court of Appeals description of the evidence presented at trial is quoted at length in part because understandinu Bills claims requires an understanding of the facts of the crime and the events leading to it.
Prosecution Evidence
The seven-year-old victim, Nicole H., lived with her mother, Angie H., who had been [Bills'] girlfriend for about a year and a half at the time of the crime. On March 11, 1994. Angie left to run an errand. She locked her house and gave [Bills] the keys, asking him to keep an eye on things. When she left, [Bills] was outside where Angie's sons were playing, while Nicole was inside watching TV.
According to Nicole, [Bills] came inside and asked her if she wanted a back rub. Although she declined, [Bills] turned her over and began rubbing her back and buttocks. [Bills] turned her over again and rubbed her stomach. He then pushed her clothing aside, slightly touching her vagina, and orally copulated her. [Bills] then asked her what she wanted for her birthday, even though it was several months away, [Bills] gave Nicole a "twirl" a game they played in which [Bills] spun her around in the air, holding only an arm and a leg. Nicole went outside and told her [older] cousin. Teresa, what had happened. Nicole testified that this incident was the first time [Bills] had touched her in a "bad" way and that she had always liked him previously.
Teresa testified that Nicole was crying and explained what [Bills] had done, [Bills] approached them and attempted to give Angie's keys to Nicole. Teresa told him to wait and give the keys to Angie. However. [Bills] let the keys drop to the ground and left. When Angie returned from the store. Teresa told her what had happened. Angie became very upset and went in search of [Bills]. Angie's mother, Faye, lived across the street. [Bills] asked her for a ride, but she refused. Angie saw [Bills] running to get into a friend's car. She yelled after him, threatening his life.
Faye testified that [Bills] called her house several times before the police arrived. On one occasion. [Bills] said ". . . I do not know what made me do that." He offered to call the police. Angie received several phone calls from [Bills], who apologized for what he had done and said. "I should just kill myself.
Deputy Sheriff Reno responded to the scene. She instructed Angie to take Nicoie to the hospital for a sexual assault examination but forgot to collect Nicole's clothes for preservation of potential evidence. Angie testified she was too upset to focus on the deputy's directions. She immediately bathed Nicole and washed her clothes. Angie presumed that her mother took Nicole to the hospital at some point, though that never occurred.
While Deputy Reno was at the victim's home. she received a dispatch that [Bills] had phoned and wanted to be contacted by a deputy. Reno went to [Bills'] home. [Bills] said he had been reading a storybook to the victim when her mother left for the store. He then swung Nicole around and gave her a back rub. [Bills] also said. "I probably touched "her, not sexual, just playing with her." Significantly, [Bills] did not mention tickling Nicole or blowing on her stomach; nor did he claim that the various adults were conspiring against him. Reno arrested [Bills.]
Deputy Sheriff Agresta, a trained sexual assault investigator, interviewed Nicole on March 23 and [Bills] on March 24. [Bills] said that he first asked Nicole if he could give her a backrub. He then turned her over and started tickling her and blowing on her stomach. He stopped when he looked up and "saw a scared look on her face."
Finally, the prosecution presented three letters [Bills] had written to Angie from jail. In each, he professed his innocence, claiming that if he did touch Nicole's crotch it happened accidentally while playing with her and that the allegations had been "blow[n] way out of porportion [sic]." He pleaded with Angie to drop the charges and claimed he still cared for her and her children. He suggested that the prosecutor was forcing her to pursue the case by threatening to take her children away. As will become relevant below. [Bills] never claimed in the letters that Angie had fabricated the allegations because she was angry about his relationship with another woman.
Defense Evidence
[Bills] testified that he was reading to Nicole when Angie left for the store. He twirled Nicole around, but she accidentally fell on her face. In order to make her laugh, he tickled her and blew on her stomach. Nicole suddenly got "a look on her face," stopped laughing, and told him she did not want to play anymore. Nicole went outside to play. [Bills] allowed for the possibility that he accidentally touched Nicole's groin through her clothing when he was playing with her, but he denied any sexual intent. When Angie returned from the store. [Bills] said he was leaving her because of his relationship with another woman who was pregnant. Angie became angry and threatened him. When Faye refused to give him a ride home, he got a ride from a friend.
[Bills] went home and called Faye, who told him that Angie believed that he had sexually assaulted Nicole. [Bills] denied having done so. [Bills] initially testified he gave Nicole a birthday present that day. When the prosecutor informed him that Nicole's birthday was in August not March. [Bills] claimed he had just decided to give her some money.
[Bills'] mother testified that he was very upset when he returned home that day. She overheard him call Faye and deny having assaulted Nicole. Marlene Modkins claimed to have been [Bills'] girlfriend and pregnant with his child at the time of his arrest. She had been unaware of his relationship with Angie, however, Modkins initially testified that she met [Bills] in late February or early March. Later, she testified they had been involved for four or five months before his arrest. She testified that her last menstrual cycle had been in mid-February and that the doctor told her she was pregnant two days after [Bills'] arrest. She visited [Bills] in jail to tell him, though she claimed they had "speculated" she was pregnant before his arrest.
Respondent's Exh. A. California Court of Appeal opinion ("Cal. Ct. App. opinion"). pp. 1-4 (footnote omitted).
Following a jury trial in Contra Costa Superior Court. Bills was convicted of lewd and lascivious conduct with a child (Cal. Pen. Code § 288(a)) and annoying and molesting a child (Cal. Pen. Code § 647.6). The court also found true that Bills had a prior serious felony "strike" conviction for sexual assault (Cal. Pen. Code § 667) and that he served a prior prison term. Bills was sentenced to prison for a term of seventeen years. The California Court of Appeal reversed the case and remanded for a limited hearina pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (Cal. 1996). and affirmed the judgment in all other respects.
The California Supreme Court denied his petition for review. on remand. the trial court denied the motion to dismiss the prior conviction under Romero and reinstated the judgment. The California Court of Appeal affirmed. The California Supreme Court denied the petitions for review and for writ of habeas corpus. Bills filed this action on June 27. 2000. claiming that the evidence was insufficient to support the verdict and that he received ineffective assistance of counsel.
JURISDICTION AND VENUE
This court has subject matter urisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Contra Costa County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenue collaterally in federal habeas proceedings either the fact or length of their contimement are required first to exhaust state judicial remedies. either On direct appeal or through collateral proceedings. by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2234(b), (c). The parties do not dispute that Bills has exhausted his state court remedies for the claims raised in his petition.
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2234(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state courts adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States: or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set ot materially indistinguishable facts." Williams v. Taylor, 329 U.S. 362. 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner s case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather. that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state courts application of clearly established federal law was "objectively unreasonable." Id. at 409.
DISCUSSION
A. Sufficiency of the Evidence Claim
Bills alleges: "Ther[e] was no evidence in my case/ther[e] was falsified document that say I did one thing. but in trail [sic] I got found not guilty." Petition, p. 3. This court construes Bills' claim to assert that there was insufficient evidence to support the verdict.
Although Bills raised a claim in his state court appeal concernine the sufficiency of the evidence to prove his prior convictions, the claim he raises in federal court appears to relate to the two substantive crimes. Bills' traverse confirms that, as he therein discusses the sufficiency of the evidence of the sex offenses.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 338, 364 (1970). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. but rather determines whether. "after viewing the evidence in the light most favorable to the prosecution. any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia. 443 U.S. 307, 319 (1979): Payne v. Borg, 982 F.2d 333, 338 (9th Cir. 1992). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be uranted. Jackson. 443 U.S. at 324: Payne. 982 F.2d at 338. The "prosecution need not affirmatively `rule out every hypothesis except that of guilt'." and the reviewing federal court "faced with a record of historical facts that support conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution. and must defer to that resolution." Wright v. west, 505 U.S. 277, 296-97 (1992) (quoting Jackson. 443 U.S. at 326). California courts apply the same standard review as the federal courts. See People v. Johnson. 26 Cal.3d 337, 373-78 (1980).
1. Lewd And Lascivious Conduct
The first crime of which Bills was convicted was a violation of California Penal Code § 288(a), based on the charge that he licked Nicole's vagina. California Penal Code § 288(a) provides that "[a]ny person who willfully and lewdly commits any lewd or lascivious acts. including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the ace 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. . . ." To prove a violation of California Penal Code § 288(a). the prosecution had to show that Bills committed a lewd or lascivious act upon a child under 14 years of age and that the act "was done with the specific intent to arouse. appeal to. or gratify the lust, passions, or sexual desires of that person or the child." CALJIC 10.41: CT 141. (A lewd or lascivious act is defined as any touching of the child's body with the specific intent to arouse. appeal to. or gratify the sexual desires of either party. CT 140.)
Reviewing the record in a light most favorable to the pi'osecution. there is ample evidence to support the verdict. The eight-year old victim. Nicole. testified that she refused Bills' offer to rub her back. but he insisted. flipping hei' over onto her stomach and rubbine her back with his thumbs. and then proceeding to rub her buttocks. Although Nicole was unable to remember at trial whether Bills had touched her vacina with his fin uer. evidence was introduced that she had testified at the preliminary hearing that Bills had touched the lip other vacina with his finger. Before Bills touched her vacina. Nicole told him. "No. I'm going to tell." RT 106-07. Evidence also was presented that Bills pulled Nicole's clothes down and touched her vagina with his tongue. keeping it there "or approximately nine seconds. Viewed in the light most favorable to the prosecution. this evidence established that Bills touched the body of a child, the child was under 14 years of age. and the touching was done with the specific intent to arouse. appeal to. or gratify the lust. passions or sexual desires of Bills or the victim.
2. Annoying/Molesting A Child
The second count related to the charge that Bills touched the victim's vacina with his finger. CT 169. The jury found Bills not guilty on the f'elonv charge of lewd and lascivious conduct but found him guilty of the lesser included offense of' annoying or molestina a child. a misdemeanor under California Penal Code § 647.6(a). CT 169-70. California Penal Code § 647.6(a). provides punishment for any "person who annoys or molests any child under the age of 18." To prove a violation of California Penal Code § 647.6. the prosecution had to show two elements; (1) Bills "engaged in [acts] [or] [conduct] directed at a child under the age of 18 years which would unhesitatingly disturb or irritate a normal person if directed at that person." and (2) the acts or conduct were "motivated by an unnatural or abnormal sexual interest in Nicole." CALJIC 16.440: CT 146.
Evidence of Bills' acts of rolling the victim over and touching her on various intimate portions of her body (including touching her vagina with his finger) provided sufficient evidence to support this conviction. The victim's preliminary transcript was introduced that Bills had touched the lip of the victim's vagina with his finger. Bills had made statements that partially corroborated the victim's account, even though he denied a sexual intent and even though he denied actually touching the victim's vagina. After waiving his Miranda rights. Bills told Deputy Reno that after Nicole's mother, Angie, left the apartment, he played with Nicole, swinging her around. Bills also admitted that he gave the victim a "back massage" and "[he] probably touched her, not sexual, just playing with her." RT 200-01. He indicated that he may have touched her on an "inappropriate place" on her outer clothing. RT 295. Bills' trial testimony and his statement to the deputy corroborate the victim's testimony that intimate and unwanted contact of a sexual nature occurred, althouch Bills disputed the exact nature of the touching and denied a sexual intent. Viewed in the light most favorable to the prosecution, the evidence established that Bills engaged in conduct (touching of the vagina and rubbing the buttocks) directed at a child that would unhesitatingly disturb or irritate a normal person and that these acts were motivated by an unnatural or abnormal sexual interest in Nicole.
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of both crimes (i.e.. lewd and lascivious conduct and annoying or molesting a child) beyond a reasonable doubt. There was no due process violation insofar as the evidentiary support for the verdict. Bills is not entitled to the writ of habeas corpus on this claim.
Although respondent states that the California Court of Appeals rejection of this claim was adequate, see Respondent's Memorandum, p. 11, the parties do not state where in Bills' appellate briefs the claim was presented to that court for consideration or where (if anywhere) the claim was discussed by that court. The parties also do not show where in the petitions to the California Supreme Court the claim appears. Assuming arguendo that Bills did present the claim to the state's highest court. Bills has failed to show that the court's implicit rejection of the sufficiency of the evidence claim was contrary to or an unreasonable application of clearly established federal law. Even if the claim was not presented to the state court, this court may reject the claim on its merits under 28 U.S.C. § 2254(b)(2).
B. Ineffective Assistance of Counsel
Bills argues that he received ineffective assistance of counsel, listing a number of alleged errors and admissions. Bills fails to establish either incompetence or prejudice or both for each of these alleged errors and admissions.
The Sixth Amendment guarantees not only assistance, but the effective assistance, of counsel. Strickland v. Washington. 466 U.S. 668, 686 (1984). The purpose the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functionine of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To establish a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate that his counsel failed to act in a manner to be expected of reasonably competent attorneys acting as dingent advocates. See id. at 687. In addition. a habeas petitioner must show prejudice — "that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 694. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. Babbitt v. Calderon. 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsels performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. With these well-known limits in mind, the court turns to Bills' specific claims of ineffective assistance of counsel.
1. Failure to Present Evidence From Parole Revocation learning
Bills contends that his counsel possessed but failed to present at trial evidence elicited at his parole revocation hearing that would have been helpful. Pet. at "Facts 1" Bills contends that there were alleged inconsistencies in the testimony of Angie, the victim's mother, at the parole hearing — although he has not provided a record showing the inconsistencies he contends exist. One of the discrepancies apparently related to Angie's recitation of what Nicole had told her about the incident. Inconsistencies in Angie's recollections as to what had occurred between Bills and Nicole would not advance his defense far because Angie was not present during the incident. Any inconsistencies in her testimony would not necessarily render Nicole's version of the incident inherently unbelievable. In addition, alleged (and unproven) inconsistencies between Angies statement and that of a sheriff about whether Nicole was taken to the hospital were collateral to the issues at trial because no biological evidence was offered at trial. It was undisputed that Nicole had not been taken to the trial and physical evidence had not been collected. The trier of fact had the opportunity to determine the credibility of the witnesses and defense counsel did inquire of Angie whether Nicole was taken to the hospital and learned that she had not been taken to the hospital. Bills has failed to establish either deficient performance of resulting prejudice in relation to counsel's handling of evidence elicited at the parole revocation hearing.
2. Failure To Have Case Thrown Out After Preliminary Flearing
Bills argues that his counsel was ineffective for failing to have "the case of penetration throw[n] out" after the preliminary hearing based on alleged conflicting testimony. Pet. at 9. No. 2. This contention is without merit. At the preliminary hearing. Nicole testified that Bills licked her vagina and touched her vagina with his finger. CT 15-19. Even assuming the victim's testimony had some conflicts within it, a conflict on the preliminary hearing testimony is not a basis for dismissing the charges under California law. See Rideout v. Superior Court, 67 Cal.2d 471, 474 (1967). Counsel was not ineffective for failing to make a meritless motion to dismiss. See James v. Borg, 24 F.3d 20. 26 (9th Cir. 1994) (no ineffectiveness for failure to make a meritless suppress motion). The testimony at the preliminary hearing was sufficient to bind Bills over for trial on the charees. CT 76. Despite Bills' suggestion to the contrary, the absence of evidence of actual penetration did not negate the existence of a crime. Bills has failed to show counsel's failure to cause the charges to be dismissed was deficient performance or prejudiced him.
3. Counsel's Cross-Examination of the Victim
Bills claims that counsel was ineffective for decidine "lie was not going to make the victim look bad on the stand" and failing to vigorously cross-examine. Pet. at 8. No. 3. Bills also asserts that counsel failed to bring out purported inconsistencies in Nicole's testimony relating to whether Bills knocked on the door and whether she saw Bills givingn her money. Pet. at 8. No. 3.
Counsel's decision as to how vigorously to cross examine an eight-year old victim was a tactical decision deserving of deference. See United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985). Counsel reasonably may have decided that it would not be a good strategy to vigorously cross examine a young child because such a strategy might alienate the jury. See Gallo v. Kernan, 933 F. Supp. 878, 881-82 (N.D. Cal. 1996) (record showed tactical reason for not attempting to impeach sexual assault victim with prior inconsistent statement in order to minimize juror sympathy).
Bills fails to demonstrate how the cross-examination fell below an objective standard of reasonableness. Defense counsel elicited several favorable statements from Nicole. She estified that Bills always treated her well, and that her mother had left her with Bills on many occasions without incident. In addition, Nicole admitted that when her mother or grandmother hated someone, she hated that person as well. Having elicited such testimony, defense counsel was not incompetent for failure to more vieorouslv attack the victim on cross-examination. Choosing the appropriate tone for cross-examination is paiticularly important with a child-victim of an alleged sexual assault to avoid alienating the jury, Even though Bills may wish that his counsel had subjected the child-victim to a blisterine cross-examination, his counsel could reasonably choose the tact he chose to examine the child-victim.
Bills also fails to establish a reasonable probability that the jury would have reached a more favorable verdict had counsel vigorously attacked Nicole on cross examination. Tinsley v. Borg. 895 F.2d 520, 532 (9th Cir. 1990). Bills fails to show specific areas where more vigorous cross-examination would have been fruitful. His contention that counsel failed to sufficiently show that Nicole perjured herself in testifying that he knocked at the door would have made no difference, as his manner of entry was not an element of the crimes and Nicole could have innocently misrecalled that he knocked rather than intentionally lied about it or Nicole could have correctly recalled that he knocked even though Bills did have a key. Likewise, Bills has not shown how further inquiry about whether Bills gave her mother money would have been fruitful. Moreover, the record is sufficient to support Bills' convictions. The victim provided direct testimony of the events of the molestation. Bills corroborated parts of this testimony by admitting to the deputies that he touched the victim and put his mouth on her bare stomach. Bills' flight from the scene evidence of a consciousness of guilt. In addition, Bills' testimony that Nicole's mother set him up was very weak. He claimed he told Nicole's mother earlier on the day of the molestations that he had found another woman however, it was only after the incident that Nicole's mother became angry with Bills. Nicole's mother and grandmother were at the store when Nicole went to another adult, Teresa Stevenson, crying and scared, and told her about the molestation. Nicole's mother became hysterical when she came home a short time later and heard from Stevenson what Bills had done. She immediately ran after Bills who quickly drove off. Bills' testimony on his own behalf was intrinsically weak. Bills fails to establish deficient performance or prejudice resulting from counsel's alleged failure to cross-examine the victim more vigorously.
4. Police Reports And "911" Tape
Bills claims that counsel was ineffective for failure to use the police reports to show that Bills "hit" rather than "licked" the victim. Pet. "Areuments page 2." This claim is very vague and apparently is based on the allegation that the deputies somehow transformed a "hit" into a "lick" and then failed to do their job by making sure that the victim was taken to the hospital. Deputy Reno was dispatched to the scene and found Angie too hysterical to speak coherently. The deputy took a statement from Nicole who told her that Bills licked her. The deputy told Angie to take Nicole to the hospital. but she did not personally escort them because she was dispatched to another location to contact Bills. Deputy Agresta testified that she interviewed Nicole several days later, and Nicole said that Bills had touched and licked her vagina.
Bills argues that counsel should have cross examined the deputies more strenuously on their alleged failure to collect evidence. Nicole's mothei' testified that she did not recall anyone telling her to take the victim to the hospital after the incident and indeed had washed Nicole's vaginal area and the clothes she was wearing. There was no exculpatory physical evidence to collect after the day of the incident, so counsel cannot be faulted for failing to cross-examine the deputies for failing to collect evidence during the time after the victim's mother had washed the victim and the child. Insofar as the failure to collect evidence, defense counsel did elicit testimony from deputy Reno that (1) there was someone else on the police force with more training in interviewing children. but she wasn't called to the scene that day. (2) it "was my error in not taking the clothes" of the victim. RT 206, and (3) she didn't suggest to her sergeant that she should return to the crime scene for further work after arresting Bills. Testimony was elicited from deputy Agresta, the sexual assault investicator that (1) she did not even start working on the case until days after the incident. (2) the child should have been brought to the hospital for an exam on the day of the incident, and (3) it is best to interview a child-victim promptly, to avoid confusion and influence from others. Counsel was not remiss in failing to pursue further the alleged failure of the deputies to "collect evidence."
Bills also asserts that counsel should have obtained the "911" tape reporting the incident. The victim's mother, rather than the victim, called the police Bills has not shown how the "911" tape would have helped his defense and there is nothing in the record to indicate that the initial statements to the "911" operator would have been exculpatory. Bills fails to demonstrate deficient performance or prejudice resulting from the absence of the "911" tape.
5. Closing Arguments
Bills argues that his counsel was incompetent during closing arguments for failing to assert his defense that the allegations of sexual misconduct were fabricated by the victims mother for the purpose of retaliation. In general, defense counsel's closing argument is a matter of tactics that a court should not second guess in hindsight. McDowell v. Calderon. 107 F.3d 1351, 1338 (9th Cir. 1997), vacated in part on another ground 120 F.3d 936 (en bane): Hughes v. Borg. 898 F.2d 695, 703 (9th Cir. 1990). Bills raised a similar claim in the California Court of Appeal. That court rejected the claim:
Defendant testified on cross-examination that the allegations of sexual misconduct were fabricated as retaliation because he told Angie he was leaving her for another woman. He also testified the prosecutor and others conspired against him. During closing arguments, defense counsel departed from the conspiracy theory and offered a different explanation for the false allegations. Essentially, counsel argued that Nicole was a "darling girl," who was not lying but whose memory of events had been transformed by the highly emotional reaction of the adults in her family. Counsel supported this argument with the substantial evidence that the adult women were anry and emotional when Deputy Reno arrived.
We set forth a portion of counsel's argument at leneth: "So in that environment the accusation got passed around before the arrival of Deputy Reno. Deputy Reno who is admittedly untrained in the area is there . . . until she is called away and Nicole is then left in this obviously simmering pot of hatred and resentment against Mr. Bills. She's left there not just for a little while, it's I believe a day short of two weeks that she is left before anyone else bothers to speak to her. ¶ . . . ¶ Now, by the time she's up here on the witness stand, of course she is a veteran and now firmly believes everything she is saying. I have no question about that. You are not going to hear me that there is some conspiracy of lies here. But you have to look at the background of all this and how it could have come out. ¶ . . . ¶ Now Angie . . . Teresa, Faye . . . they all testified and they all painted a picture of escalating hysteria there as this word spread around and got told and retold. Everyone was obviously very upset. And that's the picture that they paint. You have to consider all of Nicole's testimony in light of that." Counsel went on to argue that defendant's phone calls to Angie and Faye had been misinterpreted f'or the same reason.
In the affidavit in support of the petition, appellate counsel recounted several telephone conversations in which trial counsel explained his strategy during closing argument. Trial counsel explained that defendant appeared "paranoid and crazy" during his testimony and that Nicole and her grandmother had been very credible. Counsel believed the jury would not accept a theory of "orchestrated perjury" and so chose to present a more palatable" theory.
Defendant contends counsel's aruument amounted to ineffective assistance. "To establish constitutionally inadequate representation, a defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms: and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.] (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-58.) Defendant has failed to establish the first of these criteria.
Trial counsel determined that the prosecution witnesses were generally credible and that the jury would not believe the allegations were simply fabricated. Additionally, defendant himself testified that he tickled Nicole, blew on her stomach, and might have accidentally touched her vagina. Defendant also admitted that Nicole suddenly stopped laughing and did not want to play anymore. Deputy Agresta testified that defendant told her Nicole suddenly had a "scared look on her face." Counsel essentially argued that Nicole misunderstood defendant's actions and that her initial report was transformed into criminal allegations by the emotional reactions of Angie and Faye. Counsel's strategic choice was entirely consistent with defendant's letters to Angie from jail. The argument was eminently reasonable and strategically wise, given the myriad of problems with defendant's version of events.
In response to Nicole's testimony' that defendant asked her what she wanted for her birthday. defendant claimed that he, in fact, gave her a birthday present that day. When he was reminded that her birthday was months away, he changed his testimony. Defendant also claimed he told Angie he was leaving her for another woman who was pregnant. Marlene Modkins initially testified that she did not know she was pregnant until after defendant's arrest. She then claimed they had "speculated" she might be pregnant before his arrest, though the fetus could not possibly have been more than a month old. Additionally, she admitted her menstrual cycle was too irrecular to allow for an accurate assessment, moreover, in the immediate aftermath of the events, defendant never told deputy Reno anything about tickling Nicole, blowing on her stomach, or that the women were angry with him for breaking up with Angie. Defendant also did not mention this "conspiracy" theory to Deputy Agresta during their interview nearly two weeks later or in his letters to Angie months later.
In People v. McPeters (1992)2 Cal.4th 1148, 1186. a capital case, the defendant testified that he had not been at the scene of the murder despite substantial evidence tying him to the crime. "Defense counsel had only one realistic chance — to discredit the robbery evidence — and faced the likely prospect that defendant's own testimony had destroyed his credibility beyond rehabilitation. From a tactical point of view, it was, to say the least, an uphill battle. ¶ In light of the evidence, counsel elected to concede his client's presence at the scene (a fact no one but defendant disputed) and to explain his client's contrary testimony as a failure of recollection. Defendant's testimony provided support for the strategy: he professed failure of recollection numerous times while on the stand. Counsel attacked the robbery and robbery special circumstance charges, maintaining defendant did not have the requisite intent to steal and did not in fact steal. These arcuments were proper and related to the elements of the crimes as disclosed in the instructions given to the jury. Under these circumstances, we cannot say counsel was constitutionally ineffective in his attempt to make the best of a bad situation. [Citations.]" (Id. at pp. 1186-1187.) The MePeters court distinguished People v. Diggs (1986) 177 Cal.App.3d 958, upon which defendant relies here as well. In that case, the appellate court found there was "no plausible tactical explanation for [counsel's] bizarre argument." (Id. at p. 970, fn. omitted.) The court in Diggs wrote: "It has been held that where counsel fails to argue in support of evidence showing a lawful defense, and instead argues a theory not recognized as a lawful defense, and upon which the jury will receive no instructions, counsel has incompetently deprived his client of a potentially meritorious defense and has effectively conceded his client's guilt. [Citations.]" (Id.) That scenario did not unfold here. Counsel ably argued a plausible theory supported by the evidence that would have resulted in an acquittal if believed by the jury. Defendant is entitled to no more.
Ordinarily, such hearsay declarations would be insufficient to support a petition. Here, however, although the declaration was offered by defendant, it actually' supports the People's position that a valid strategic reason exists for trial counsel's actions.
Exhibit A. Cal. Ct. App. opinion. pp. 17-20.
The state court's determination that counsel was not ineffective is supported by the record, and the decision is not an unreasonable application of federal law as determined by the United States Supreme Court.
Bills wanted counsel to present a conspiracy theory, i.e., that the victims mother, Angie, invented the story to retaliate against him for leavine her. The validity of his conspiracy defense was severely undermined by some of the evidence presented at trial — especially from witnesses independent of Angie. First, there was evidence that the victim reported the assault to her cousin, Teresa Stevenson, before Angie even returned home from the store. The victim was crying and scared when she spoke to Stevenson about the incident. Second, Bills claimed that he told Angie on the day of the incident that he had impregnated his girlfriend, but the believability of this was undercut by the fact that the girlfriend testified that she first learned she was pregnant two days after the molestation and accusations were made. Third, both Angie and her mother testified that up until the molestation, they had believed that Bills was good with children and would make a good father for Angies children. And Nicole testified that this was the first time Bills had touched her in an inappropriate manner. Defense counsel reasonably decided not to present the conspiracy theory. Defense counsel did not leave Bills without any defense. He aruued that the prosecutor mischaracterized the defense position in an attempt to make defense counsel and Bills "look silly for even denying such an accusation." RT 379. Counsel stressed to the jury the difficulty in proving his client's innocence because no phsical examination was done. Counsel also argued that Nicole's experience had been confused by the surrounding hysteria. And counsel argued that Bills had never been accused of mistreating children and the allegations in the case essentially came up quite unexpectedly. Rather than present an unbelievable conspiracy theory, counsel chose to make a coherent argument that the child because confused in the hysterical and emotional environment of hatred and resentment in Angie's household and that she was not properly interviewed in a timely way by an impartial prolessional. Counsel ably exploited the absence of physical evidence and the problems with the investigation: he was able to stress to the jury the great difficulty Bills faced in a defense because the opportunity for a physical examination of the child had been lost due to actions of the deputies and the victim's mother after the incident. And he was able to argue that the victim was confused — thereby avoiding the risky proposition of calling her an outright liar (which would have been particularly risky since Bills' testimony corroborated much of Nicole's description of the incident) — and had become confused as to details due to the hysterical atmosphere that existed after Nicole first told an adult of the incident. The record does not support Bills' assertion that counsel's closing aruument constituted an abandonment of a meritorious defense. McDowell v. Calderon. 107 F.3d at 1358: Hendricks v. Calderon. 70 F.3d 1032, 1042 (9th Cir. 1995).
Bills' suggestion that defense counsel withdrew a defense and conceded his client's guilt is simply without foundation. Nothing in the record supports Bills' bald assertion that his attorney told the jury that Bills was guilty. Defense counsel made the best of a difficult situation. McDowell, 107 F.3d at 1358 ("The Sixth Amendment does not hold an attorney responsible for the difficulty of the case he inherits.")
Bills also fails to demonstrate the alleged incompetence was prejudicial. Strickland, 466 U.S. at 694. In light of the strong evidence of Bills guilt, the weakness of the conspiracy defense, and the reasonableness of the defense which counsel proffered, it is not reasonably probable that the jury would have returned a more favorable verdict had the case been argued as Bills now proposes. Counsel argued as best he could given the circumstances. Arguing a conspiracy theory alone or in combination with the argument actually made would not have changed the result of the trial.
6. Failure To Object To Shackling
Bills argues that counsel was ineffective because he "let the prosecutor have Bills] strap[ped] in a chair." Pet. at 9. No. 5. Bills fails to show counsel was ineffective for failing to object to the shackling because the record supports the trial courts decision to have Bills restrained. Illinois v. Allen, 397 U.S. 337, 343-44 (1970); Hamilton v. Vasquez. 17 F.3d 1149, 1156 (9th Cir. 1994). The prosecutor argued that Bills should be shackled because he had a history of violence, he made threats against the deputies who transported him to court. and he threatened to hit his attorney to force the court to substitute counsel. Bills has not shown that the trial court erred in ordering him shackled and has not shown that it would have been useful for defense counsel to urge against shackling under the circumstances.
Bills also fails to show prejudice. There is no showing that Bills being shackled during the trial had any impact on his counsel's performance. And there is no evidence that the jury saw Bills in shackles. Rich v. Calderon. 187 F.3d 1064, 1069 (9th Cir. 1999). The court indicated at the hearing on the request to shackle Bills that efforts would be made to ensure the restraints were not visible to the jury. Bills fails to demonstrate a different result was reasonably probable had defense counsel argued against the shackling.
7. Hearing On The Motion To Dismiss The Prior Conviction
Bills argues counsel rendered ineffective assistance at the resenencing hearing, after the court of appeal remanded for a limited hearing on whether to dismiss Bill' "strike" prior conviction pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (1996). Pet. at C). No. 6. Bills argues that counsel did not meet him in jail before the hearing, that counsel did not refer the new trial judge to the favorable comments made by the judge who presided at the original sentencing hearing but had since retired, and counsel did not notify the retired judge of Bills' limited remand. Pet. at 9. No. 6.
Although counsel did not visit with Bills in jail before the hearing, counsel did consult with him when he was brought to court. Counsel explained to the resentencing court that there was only a limited need to consult with the client in advance of the hearing because of the limited nature of the resentencing hearing. Defense counsel and the resentencing court felt that Bills' grievance concerned a difference in trial tactics, based on Bills' misunderstanding of the purpose of the resentencing hearing (i.e., Bills mistakenly thought the purpose of the resentencing hearing on the prior was to retry the case on the current offenses). Even though Bills wanted to revisit the question of whether he was guilty of the substantive crimes, counsel had a tactical reason to avoid that, he did not think revisiting Bills' spurious "conspiracy" defense presented at trial would make a favorable impression: he did not think it advanced the defense's case to argue a implausible defense to the current crimes while asking a court to exercise leniency in sentencing on the prior. See People v. Redmond, 29 Cal.3d 904, 913-14 (1970) (trial court properly considered defendant's perjury at trial as an aggravating factor). Also, the court's comments that the offenses were not "aggravated" (RT 6/13/97 at 43-44, 50) indicates that Bills was not prejudiced by counsel's decision not to retry the case based on Bills' incredible conspiracy theory — although the judge did not set the convictions aside, at least he saw the crimes as not being particularly aggravated instances of those crimes.
Before ruling on the motion to dismiss, the trial court stated that it had reviewed the file in its entirety, including the probation reports "wherein are listed Mr. Bills' prior of lenses and discussion . . . about Mr. Bills at length." RT 6/13/97 at 3. The court also eviewed the transcript of the previous sentencing hearing conducted by Judge Merrill. The court stated: "I reviewed the entire file, and the probation reports filed in this case. I eviewed everything else that I can find here in the file with respect to this matter." Id. at 37. Bills fails to establish it is reasonably probable the court would have dismissed the prior conviction had counsel requested the court read the transcripts of the entire trial or had counsel asked the newly assigned judge to contact Judge Merrill. Bills has failed to demonstrate that counsel engaged in deficient performance or that prejudice resulted from counsel's conduct in connection with the resentencing hearing.
Bills also argues that counsel should have contacted Judge Merrill who had retired during the pendency of the appeal. Bills fails to show any prejudice from this alleged error. The resentencing court stated that it had read Judge Merrill's comments from the initial sentencing hearing, but chose to exercise its own independent discretion. Also, no prejudice resulted from any decision not to contact Judge Merrill because Judge Merrill confirmed later to Bills' appellate counsel and stated that he would not ask Judge Spinetta to strike the prior conviction. Pet. Exhibit D.
8. Jury Voir Dire
Bills argues that counsel was incompetent for failing to excuse a prospective juror during voir dire because her daughter had been raped. Pet. at 9. No. 8. Bills argues that counsel should have known that this juror would have been biased against him. Id.
Failure to strike a particular juror will not demonstrate ineffectiveness unless the record affirmatively shows actual bias against the defendant. United States v. Quintero-Barraza, 78 F.3d 1344, 1349-50 (9th Cir. 1995) (whether to strike a potentially biased juror is a tactical decision); Odle v. Calderon, 919 F. Supp. 1367, 1389 (N.D. Cal. 1996) (where juror responses showed no bias, there was no ineffectiveness for failure to strike her).
The record does not support Bills' speculation that the juror was biased. During voir dire, the juror stated that about eight years earlier, her daughter was raped when she was in her 20's, and the perpetrator was convicted. The juror stated unequivocahhy that she could be fair and impartial. Three other jurors who had friends or relatives who had been sexually assaulted were excused. Bills fails to demonstrate counsel was incompetent for iiot excusing the juror whose daughter was raped.
The analysis of the ineffectiveness claims concludes with a return to its starting point: recognizing the benchmark for judging such claims. Having carefully considered the particular alleged deficiencies identified by Bills, the court confidently concludes that counsel's conduct did not "so undermine the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland, 466 at 686. Bills is not entitled to the writ on his claim that he received ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall chose the file.
IT IS SO ORDERED.