Opinion
F072439
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ADALBERTO MACIAS GOMEZ, Defendant and Appellant.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF298180)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Adalberto Macias Gomez was convicted of multiple counts of child molestation against A.C. and given both an indeterminate and a lengthy determinate prison sentence. On appeal, he contends his confession to investigators was improperly admitted into evidence in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) because although he was told of his rights to remain silent and to counsel, he was not expressly advised of his right to have counsel present before and during interrogation. Defendant further argues his confession was involuntary because the detectives who questioned him overcame his will in their interrogation methods. Defendant contends the trial court improperly excluded his cross-examination of the victim's mother, Claudia L., about the property she was acquiring from him as a result of his arrest. Defendant argues this line of questioning was necessary to establish Claudia's improper motive in testifying against him.
Defendant contends the trial court erred in what he argues is a sua sponte duty to instruct the jury on Child Sexual Abuse Accommodation Syndrome (CSAAS) and evaluation of expert testimony. Defendant argues the prosecutor committed misconduct by misstating the law during closing argument. Defendant asserts the foregoing issues led to cumulative error. Defendant contends the trial court erred in denying his request to dismiss his retained counsel at the end of the trial and in denying his motion for a new trial based on the ineffective representation of his trial counsel. Defendant alleges sentencing errors, which are conceded by the People, with the exception of whether the trial court property imposed a restitution fine on count 18 pursuant to Penal Code section 294, subdivision (b).
Statutory references are to the Penal Code unless otherwise designated.
PROCEDURAL HISTORY
After a jury trial, defendant was convicted on April 17, 2015, of 12 counts of committing forcible lewd acts upon a child under 14 years old (§ 288, subd. (b)(1); counts 1-12), one count of aggravated sexual assault of a child under 14 years old involving sodomy (§ 269, subd. (a)(3); count 13); four counts of committing lewd acts on a child under 14 or 15 years old (§ 288, subd. (c)(1); counts 14-17), and one count of forcible sodomy on a minor aged 14 years or older (§ 286, subd. (c)(2)(C); count 18). On September 9, 2015, the court denied defendant's motion for a new trial and conducted the sentencing hearing.
The trial court sentenced defendant to a determinate state prison term consecutively as follows: eight years in prison each on counts 1 through 12, terms of eight months in prison on counts 15 through 17, two years on count 14, and a consecutive term of nine years on count 18. Defendant's total determinate sentence is 109 years. The court sentenced defendant on count 13 to an indeterminate term of 15 years to life.
The court imposed various fines and fees, including a $10,000 restitution fee pursuant to sections 1202.4, subdivision (b), and 1202.45 (suspended), and a $1,000 restitution fee pursuant to section 294, subdivision (b). The court granted presentence custody credits of 518 days for time served prior to sentencing plus conduct credits of 77 days, for total custody credits of 595 days.
FACTS
Defendant lived with his girlfriend, Claudia L., their mutual children, and A.C., Claudia's daughter from a previous relationship. Claudia had lived with defendant since 2004 or 2005. In 2007, they moved into a house purchased by defendant.
Defendant began molesting A.C. when she was 10 years old. He touched her over her clothes. Defendant touched her on her breasts, legs, and buttocks, both over and under of her clothing. Defendant started touching A.C.'s buttocks under her clothing when she was 11 years old. Defendant did this more than two times when A.C. was between the ages of 11 and 13 years old. Defendant touched A.C.'s buttocks more than two times when she was 14 years old. When A.C. was between the ages of 11 and 13 years old, defendant touched her breasts five times both over and inside her clothing. Most of the time when defendant touched her, A.C. would tell him no and try to walk away. Defendant would grab her hand and pull her back.
Defendant touched A.C.'s breasts a lot after she was 14 years old. When defendant touched A.C.'s buttocks, she would tell him no. Defendant displayed his penis to A.C. when she was 12 or 13 years old.
When A.C. was between 11 and 13 years old, defendant more than twice took her hand and placed it on his penis. After A.C. turned 14, defendant had her touch his penis four or five times. Sometimes, defendant moved A.C.'s hand on his penis, other times she moved it on her own. Defendant also touched A.C.'s vaginal area both over and under of her clothing more than two times from the time she was in fifth grade until after she turned 14. Starting when A.C. was 9 or 10, defendant would put his finger in her buttocks.
When A.C. was 13 years old, defendant put his penis into her buttocks more than four times. Defendant took A.C. to the living room, pulled her pants down, bent her over, and insert his penis into her buttocks. A.C. described the pain she felt as five or six on a scale of one to ten. When defendant was done, A.C. could feel his ejaculation. On one occasion, after he had forced A.C. to have anal sex with him when she was in fourth or fifth grade, defendant told A.C. he thought she was pregnant, and he made her drink something like a chocolate drink.
On multiple occasions, defendant kissed A.C. on her mouth, breasts, neck, arms, and buttocks. When A.C. was 12 or 13 years old, defendant tried to convince her to perform oral sex on him. Defendant told A.C. that if she sucked his penis, he would take her and the other children to the park. Whenever A.C. told defendant no, he got mad at her and would not accept her refusal. Defendant made her perform oral sex on him at least four times, maybe more than five times, before she turned 14 and more than five times after she turned 14.
Defendant told A.C. she would go to jail if she disclosed the molestation when he first began touching her. When A.C. told defendant she was going to tell her mother about the molestation, defendant again told her she would go to jail if she told anyone. Describing defendant's threat that A.C. would go to jail, she said, "he would always tell me that." A.C. was afraid of defendant. He would threaten to hit her when she refused to perform sexual acts. Defendant would gesture as if he was going to hit her, though he never actually struck her. Defendant molested A.C. at least once a month, making it difficult for A.C. to remember all of the acts.
Claudia explained that on a number of occasions, defendant would come home and go to A.C.'s room at night. Claudia described one such incident where defendant came home drunk, went straight to A.C.'s room, and stood close to her while she was in bed sleeping. Defendant began to pick up the covers when Claudia said, "What the fuck are you doing?" Claudia described defendant as "acting stupid," claiming he thought he was in the bathroom.
On April 9, 2014, Claudia got up early in the morning for an exercise class she regularly attended. She left the house at about 5:30 a.m., but the class was cancelled, so she went to the bank and returned home about a half an hour early. When Claudia entered the house, she saw defendant running in his underwear from the kitchen to his bedroom. Claudia heard the bedroom door slam, and went to the room to see what defendant was doing. Defendant was in the bed under the blankets.
Claudia went to A.C.'s room and noticed A.C. was very nervous. She asked A.C. what was going on, and A.C. looked at the floor and said nothing was going on. A.C. would not look at Claudia while speaking to her. Claudia returned to defendant's room to ask him what had happened. He claimed he had heard a noise from the roosters they kept and had gone into the kitchen to check on them.
Claudia went back to talk to A.C., who continued to act strangely. Claudia told A.C. she thought something had happened and she was going to call the police. A.C. became very scared, burst into tears, and was "crazy crying." A.C. told Claudia she did not want to go to jail. Claudia again asked A.C. what was going on. A.C. reported defendant had been rubbing up against her in the kitchen and touching her legs. Claudia called law enforcement.
Detective Katherine Garcia of the Tulare County Sheriff's Office responded to the call. She contacted A.C., who was extremely emotional, crying, and terrified. Garcia questioned A.C. four times that day.
Claudia's child, A.M., who was 10 at the time of trial, told the police that on the morning defendant was arrested, A.M. saw defendant try to kiss and touch A.C. A.M. saw A.C. push defendant away. A.M. also stated that on a previous occasion, defendant went into his bedroom with A.C. and locked the door. A.M. tried to get into the room, but could not open the door.
DISCUSSION
I. Adequacy of Miranda Warnings
Defendant contends the warnings he received pursuant to Miranda were inadequate because he was not expressly advised of his right to counsel before and during the interrogation. Defendant argues the trial court erred in denying his motion to suppress his statements to police and in permitting the jury to hear them. We find the warnings used by investigators adequate and reject defendant's assertion of Miranda error.
A. Miranda Advisements
After sheriff's deputies questioned A.C., defendant was taken for questioning. He was questioned in English by Detectives Garcia and Neil Skrinde of the Tulare County Sheriff's Department. At the beginning of the interrogation, defendant was asked if he spoke good English. He replied he understood almost everything but it was hard for him to talk back. Skrinde and Garcia had the following exchange with defendant in which they advised him of his Miranda rights:
"[SKRINDE:] Okay well we're gonna talk to you and ask you a few questions .... You're not free to leave so we've got to let you know a few things. You've seen cop tv shows and things like that? You watch tv?
"[DEFENDANT:] Yeah.
"[SKRINDE:] Yeah? Okay so we gotta do things like read you your rights and make sure that you understand them. It's really not that difficult but we just need to get through it okay? So you have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be appointed to you at no charge. Won't cost you. You understand those rights? I'm sorry.
"[DEFENDANT:] Yes.
"[SKRINDE:] Okay. Alright we're gonna ask you a few questions. This is Detective Garcia, like I told you I'm Neil.
"[GARCIA:] If at any time during this interview you don't understand when we're saying something, I can go and grab the Spanish translator from another room in a heartbeat. Okay?
"[DEFENDANT:] Okay.
"[GARCIA:] So I want to make sure that you're clear with everything. So you understood everything he just said, is that correct?
"[DEFENDANT:] Yes."
Defendant then began answering questions posed by the detectives.
B. Analysis
In Miranda, supra, 384 U.S. at page 479, the United States Supreme Court held that in order to protect an individual's privilege against self-incrimination during custodial interrogation, "the following measures are required. [The individual] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.... [U]nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Ibid.; People v. Linton (2013) 56 Cal.4th 1146, 1170-1171.) The United States Supreme Court continues to follow these precepts. (Florida v. Powell (2010) 559 U.S. 50, 59-60.)
The warnings need not be given in the exact form set out in Miranda. (Duckworth v. Eagan (1989) 492 U.S. 195, 202.) The United States Supreme Court "has never indicated that the 'rigidity' of Miranda extends to the precise formulation of the warnings given a criminal defendant.... [¶] Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures." (California v. Prysock (1981) 453 U.S. 355, 359.) "The prophylactic Miranda warnings are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' [Citation.] Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'convey to [a suspect] his rights as required by Miranda'" (Duckworth v. Eagan, supra, at p. 203), including the right to consult with an attorney and to have the attorney with him during questioning (Florida v. Powell, supra, 559 U.S. at p. 53; People v. Wash (1993) 6 Cal.4th 215, 236).
In People v. Wash, supra, 6 Cal.4th at page 236, the California Supreme Court did not find a Miranda advisement inadequate where the defendant was only advised that he had the right to counsel before questioning, but was not told he had the right to counsel during questioning. Wash noted the warning "deviated from the standard form in failing to expressly state that defendant had the right to counsel both before and during questioning" but found the language used was not so ambiguous or confusing as to lead the defendant to believe counsel would be provided before questioning and summarily removed after questioning began. (Ibid.)
One federal case, Windsor v. United States (5th Cir. 1968) 389 F.2d 530, 533, held the failure to specifically advise the defendant of the right to counsel during the interrogations themselves rendered the advisement inadequate. The Miranda warnings given in United States v. Wysinger (7th Cir. 2012) 683 F.3d 784, 803, were found "inadequate and misleading" where "the warning [the agent] gave applied only to 'questioning,' because it erroneously suggested that [the defendant] had to choose between having a lawyer present before questioning or during questioning, and because the agents used various tactics to confuse [the defendant] regarding the start of 'questioning' and divert him from exercising his rights ...." No tactics such as those used in Wysinger were employed by the investigators here during the custodial interrogation, although Wysinger supports defendant's broader point that proper Miranda warnings expressly require notice to the defendant of the right to counsel during interrogation.
The parties cite several cases from the federal courts of appeals in support of their argument. We are not bound by these decisions. (People v. Williams (2013) 56 Cal.4th 630, 668.) We note, however, that many of the federal authorities cited in our analysis are consistent with our holding there was no violation of Miranda here.
Defendant further relies on People v. Lujan (2001) 92 Cal.App.4th 1389 (Lujan). There, the defendant was informed of his right to remain silent, that whatever he said would be used against him in a court of law, and if he did not have the money to afford a lawyer, one would be appointed free of charge. Later, the defendant told interrogators he had already been interviewed twice, said he thought he needed an attorney, and he asked if he could get one the same day. The investigator told the defendant it was doubtful it because it was Sunday evening. The investigator told the defendant when he went to court in a couple of days there would be an attorney appointed for him because that was the way the system was set up. Lujan asked to make a phone call. A sergeant attempted to place the call for the defendant on the telephone in the interrogation room, but could not make an outside call from that phone. Lujan asked to make a call from a telephone in the jail area and was told he would be moved there. (Id. at p. 1398.)
The sergeant then asked the defendant if he wanted to still talk without an attorney present. Lujan initially replied affirmatively, hesitated, and indicated he wanted to wait until after he could make a call. Lujan was escorted to the phones in the booking area. After a few minutes, Lujan indicated he was unable to reach anyone by phone. (People v. Lujan, supra, 92 Cal.App.4th at p. 1398.) Lujan then indicated he wanted to talk to the detectives and was returned to the interrogation room. Lujan was cajoled by a detective to make a statement. At the same time, unknown to Lujan, an attorney contacted by a family member arrived at the station to contact Lujan but did not make it past the front desk. (Id. at p. 1399.)
The court in Lujan held the Miranda warning was inadequate because the defendant was not informed of his right to appointed counsel before and during the interrogation, and he was misinformed by the investigator that counsel was unavailable on a Sunday evening. (People v. Lujan, supra, 92 Cal.App.4th at p. 1402.) The decision in Lujan is based on facts very distinguishable from these. Not only was the defendant in Lujan dissuaded from seeking counsel by his interrogators and cajoled to give a statement, he was misadvised that no attorney would be available to consult with him on a Sunday evening. Defendant here was not told inaccurate information about the availability of counsel and showed no interest before or during his interrogation in having counsel present.
Lujan found the Miranda error harmless beyond a reasonable doubt. (People v. Lujan, supra, 92 Cal.App.4th at pp. 1404-1409.) The defendant obtained federal habeas corpus relief for the Miranda violation. (See Lujan v. Garcia (9th Cir. 2013) 734 F.3d 917, 932-936.)
Defendant further relies on People v. Stewart (1968) 267 Cal.App.2d 366 which held that a defendant was not given adequate Miranda warnings when he was told he could have his attorney present and he did not have to say anything because the statement was too ambiguous, implying counsel could be present at some future time, including after the interrogation was completed. (Id. at p. 378.) The People reply Stewart relied on the premise that "[t]he burden is on the People to show that the warnings of all the constitutional rights were given ...." (Ibid.) The People note, and we agree, this premise is inconsistent with later decisions of the United States Supreme Court holding the inquiry concerning Miranda warnings is whether the advisements reasonably convey to a suspect his or her rights as required by Miranda. (Duckworth v. Eagan, supra, 492 U.S. at p. 203, citing California v. Prysock, supra, 453 U.S. at p. 361.) We decline to follow Stewart.
Other cases have taken a different approach to whether the Miranda warnings require an express advisement of the right to counsel before and during interrogation. In United States v. Caldwell (8th Cir. 1992) 954 F.2d 496, 498, the defendant was told he had the right to remain silent, anything he said could be used against him in a court of law, he had the right to an attorney, and if he could not afford counsel, one would be appointed for him. Caldwell was not informed he had the right to counsel before and during interrogation. (Id. at p. 499.) The court in Caldwell noted California v. Prysock, supra, 453 U.S. at page 360 acknowledged Miranda required no talismanic incantation, only the Miranda warnings or their equivalent. (United States v. Caldwell, supra, at pp. 501-502.)
The court in Caldwell, relying on Sweeney v. United States (9th Cir. 1969) 408 F.2d 121, 124, noted the following about warnings such as those given there and here: "the reference to the right to counsel immediately following the warning as to the right to remain silent and an explanation of the risk in not remaining silent, would 'be taken by most persons to refer to the contemplated interrogation.'" (United States v. Caldwell, supra, 954 F.2d at p. 503.) The court in Caldwell cited other federal authorities in accord with its holding. (United States v. Lamia (2d Cir. 1970) 429 F.2d 373, 376-377, cert. den. sub nom. Lamia v. United States (1970) 400 U.S. 907; United States v. Cusumano (2d Cir. 1970) 429 F.2d 378, 380, cert. den. sub nom. Riggio v. United States (1970) 400 U.S. 830; United States v. Burns (2d Cir. 1982) 684 F.2d 1066, 1074-1075, cert. den. sub nom. Burns v. United States (1983) 459 U.S. 1174.) The warnings that the defendant had the right to remain silent and the right to counsel and to court-appointed counsel are adequate, and failure to specifically inform the defendant of the right to counsel during questioning is not fatal. (United States v. Adams (7th Cir. 1973) 484 F.2d 357, 361-363.)
Although the warnings here did not expressly state defendant had the right to consult with an attorney prior to or during questioning, we do not believe the language was so ambiguous or confusing—particularly in light of the stated right to remain silent—as to lead defendant to believe an attorney would not be provided upon request, whenever that request was made. (See People v. Wash, supra, 6 Cal.4th at p. 236.) The warnings neither suggested any limitation on the right to the presence of counsel nor linked the appointment of counsel to a point in time after police interrogation. (Cf. Duckworth v. Eagan, supra, 492 U.S. at p. 198; California v. Prysock, supra, 453 U.S. at pp. 360-361.) The advisements did not "'entirely omi[t]' ... any information Miranda required [the detectives] to impart." (Florida v. Powell, supra, 559 U.S. at p. 62; see People v. Lujan, supra, 92 Cal.App.4th at pp. 1397-1403.)
The right to have counsel present before questioning could have been more explicitly stated. The "essential inquiry," however, "is simply whether the warnings reasonably '"[c]onvey to [a suspect] his rights as required by Miranda."' [Citation.] We are satisfied that the warnings given defendant here 'reasonably conveyed' his right to have an attorney present during questioning." (People v. Wash, supra, 6 Cal.4th at pp. 236-237, quoting Duckworth v. Eagan, supra, 492 U.S. at p. 203; see People v. Lujan, supra, 92 Cal.App.4th at p. 1400; but see People v. Diaz (1983) 140 Cal.App.3d 813, 823-824 [warnings found insufficient where Spanish translation to defendant left out right to appointed counsel if defendant could not afford one].)
Defendant has not shown a sufficient defect in the Miranda warnings he received prior to the interrogation. The warnings were given to defendant after he had been arrested and placed in a holding cell and immediately after he was told he could not leave the premises. Defendant was expressly told he had the right to an attorney after being advised of his right to remain silent and that anything he said would be used against him in a court of law. In the context of the advisements as a whole, the only reasonable interpretation is that the right to have an attorney existed then and there, during questioning, as did the right to remain silent. Although the right to have counsel available before and during the interrogation was not expressly stated, it was clearly implicit under the circumstances of defendant's interrogation.
II. Ineffective Counsel
Defendant contends his trial counsel was ineffective for failing to argue that his confession was involuntary. Defendant asserts his counsel should have objected to the detectives' use of a "maximization/minimization" technique which, in effect, constituted impermissible threats of punishment if defendant failed to confess and implied promises of leniency if he confessed. The People reply that if defense counsel had made this argument, the motion would have been meritless. We agree.
A. Interrogation
During the interrogation, defendant told detectives he did not have sex with A.C. and he knew nothing. Detective Skrinde told defendant A.C. was aware her mother knew about the molestation. Detective Garcia asked defendant if he told A.C. not to say anything to anyone because she would go to jail for the rest of her life. Defendant insisted he did not say this to A.C. Skrinde asked defendant if this was the story he was going to court with, and Garcia added: "That is bullshit because I'll tell you what, no one in a whole freaken world is gonna believe that all these people are gonna make up these lies about you. Nobody."
Several times during the interrogation, the detectives accused defendant of lying. Skrinde told defendant that his child saw defendant in his underwear, taking it off, and the child bolted back into his bedroom. The child also heard defendant as he was trying to get into A.C.'s bedroom. Skrinde said defendant's child was telling the truth before telling defendant: "You on the other hand, you're just a pimp little bitch that won't fucking tell [me] the truth." Skrinde told defendant to get it off his chest and they could work through it. Garcia told defendant she would have more respect for him if he told her the truth, admitted he messed up and did these things, rather than lie to her.
Although the transcript has Skrinde saying defendant "won't fucking tell you the truth," Skrinde clearly says "me," not "you" on the recording of the interrogation. The parties agree this is scrivener's error in the written transcript of the recorded interrogation.
During the interrogation, Skrinde told defendant to tell the truth and let them work with him. Defendant soon told the detectives parts of what they told him about molesting A.C. were true. Garcia told defendant they had talked to everyone in his house and not to make himself look any dumber. Defendant claimed he peed and defecated in A.C.'s bedroom.
Skrinde offered it was possible A.C. was mature for her age, was fully developed with large breasts, and probably "came on" to defendant. Skrinde noted they had talked to A.C.'s friends and A.C. was a fun, outgoing person. Garcia asked defendant if he wanted to be labeled as someone who raped A.C. anally, wondered if they had a relationship A.C. was partially responsible for, and suggested the possibility that A.C. put her hand on defendant's penis to masturbate him. Skrinde wanted to know if A.C. grabbed defendant's "junk" or whether he put her hand on his penis. Defendant denied these scenarios. Skrinde said he and Garcia were starting to wonder if it was more A.C. than defendant, suggesting A.C. was a beautiful, fully developed woman who may have been attracted to defendant, who was not her real dad. Skrinde said to defendant, "You're a man. And that I get. It's happened to me." Skrinde added he wanted to know A.C.'s role in this.
Garcia added this "changes things all the way across the board." Garcia again suggested defendant was forcing A.C. to have anal sex with him, which he denied. Skrinde suggested defendant loved A.C. and thought she loved defendant back. Skrinde wondered if there had been talk of running away together and whether defendant's wife knew about the relationship and was jealous.
Defendant described his wife as angry and difficult with A.C., especially over money. Skrinde told defendant they knew what happened, they were not telling defendant everything A.C. told them, but they knew she came onto defendant in a sexual way. Skrinde explained they knew there was a relationship defendant allowed to go on because "you guys have feelings for each other." Defendant said this was not true, but he did not force A.C. Defendant proceeded to admit having unforced sexual encounters with A.C.
B. Suppression Motion
Defendant sought to suppress his confession at a pretrial hearing based on a Miranda violation and because his English was poor and he did not understand his rights. He did not argue the confession was involuntary because of the use of the maximization/minimization questioning technique.
In his testimony at the hearing, defendant stated the detectives who questioned him said nothing about an attorney, and he did not know he could have an attorney before questioning. When asked on cross-examination if he was advised of his right to remain silent, defendant said he heard something like that but he did not understand everything. Defendant could not remember the interrogation well. Defendant remembered something about an attorney being appointed for him at no cost if he could not afford to hire one.
Defendant denied being offered a Spanish interpreter and claimed he did not understand what the detectives were talking about. Defendant was aware he was facing serious charges when he talked to the detectives. Defendant then denied he knew how serious the charges were. Defendant denied being able to have a full conversation in English.
The trial court denied defendant's motion to exclude his confession, finding substantial compliance with Miranda and rejecting his argument that he failed to understand his rights because of his poor English. The court explained to defense counsel: "I can tell you that your client's testimony in the Court's mind did not help him. I find [defendant]'s testimony is inherently unreliable on several grounds. He says he didn't understand English, he speaks very little English, understands very little English. That's not my impression whatsoever after reviewing Exhibit 1 [the recorded interrogation]. He did say on the tape he speaks English but he understands it better. He was told that if he didn't understand something they would get him an interpreter. Now, he denies that even happened. His denial and his statement that if they offered him an interpreter he would have gotten one, I don't believe that at all."
The court continued: "His testimony is inherently unbelievable on that because the transcript says exactly the opposite.... He is very understandable in English on ... the audiotape. His responses to questions are logical, and they flow. There didn't seem to be any confusion to me in his response to any of these questions. So this ruse about now, in the Court's mind, that he doesn't understand English is exactly that, it's a ruse, and it's trying to use the language barrier to somehow assist him, and it's not going to work in this department. The Court finds that he understands English well, he was able to talk to the officers, and so his statement's coming in."
C. Voluntary Confession
A criminal conviction may not be founded upon an involuntary confession. (Lego v. Twomey (1972) 404 U.S. 477, 483; People v. Williams (2010) 49 Cal.4th 405, 436.) The People bear the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. In making this determination, the question is whether the defendant's choice to confess was not essentially free because his or her will was overborne. The voluntariness of a confession depends on the totality of the circumstances. We defer to the trial court's findings concerning the circumstances surrounding a confession, but its finding of a voluntary confession is subject to independent review. (People v. Carrington (2009) 47 Cal.4th 145, 169.) If the evidence that a confession was coerced conflicts, the version most favorable to the People must be relied upon if supported by the record. (People v. Tully (2012) 54 Cal.4th 952, 993.)
No single factor is dispositive in evaluating the voluntariness of a statement, and whether the confession is voluntary depends on the totality of the circumstances. (People v. Williams, supra, 49 Cal.4th at p. 436; People v. Williams (1997) 16 Cal.4th 635, 661.) We view the statement to determine if it is the product of a free and unconstrained choice or whether the defendant's will has been overborne and his or her capacity for self-determination was critically impaired by coercion. (People v. Williams, supra, at p. 436, citing Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225.)
Relevant considerations concerning whether an interrogation is coercive include the length of the interrogation, its location, and its continuity, as well as the defendant's maturity, education, physical condition, and mental health. (People v. Williams, supra, 49 Cal.4th at p. 436, citing People v. Williams, supra, 16 Cal.4th at p. 660.) In assessing police tactics that are allegedly coercive, courts have only prohibited those psychological ploys which are so coercive they tend to produce a statement that is both involuntary and unreliable under all of the circumstances. (People v. Williams, supra, 49 Cal.4th at p. 436.)
Investigators are permitted to ask tough questions, exchange information, summarize evidence, outline theories, confront, contradict, and even debate with a suspect. (People v. Carrington, supra, 47 Cal.4th at p. 170.) They may accuse the suspect of lying (People v. Enraca (2012) 53 Cal.4th 735, 755) and urge him or her to tell the truth (People v. Tully, supra, 54 Cal.4th at p. 994). Investigators can suggest the defendant may not have been the actual perpetrator, or may not have intended a murder victim to die. They can suggest possible explanations of events and offer a defendant the opportunity to provide details of the crime. Absent improper threats or promises, there is no constitutional principle forbidding the suggestion by authorities that it is worse for a defendant to lie in the presence of overwhelming and incriminating evidence. (People v. Williams, supra, 49 Cal.4th at p. 444.) Deception does not undermine the voluntariness of a defendant's statements to investigators unless it is of a type reasonably likely to procure an untrue statement. (Id. at p. 443; People v. Hensley (2014) 59 Cal.4th 788, 813.)
A confession is not invalidated simply because the possibility of a death sentence was discussed beforehand, but only where the confession results directly from the threat such punishment will be imposed if the suspect is uncooperative—coupled with a promise of leniency in exchange for cooperation. Suggestions by investigators that killings may have been accidental or resulted from a fit of rage during a drunken blackout fall far short of promises of lenient treatment in exchange for cooperation. This is especially the case where detectives did not represent that the prosecutor or court would grant the defendant any particular benefit if he told them how the killings occurred. (People v. Holloway (2004) 33 Cal.4th 96, 116.)
Defendant's minimization argument fails to convince us the detectives interrogated him by improper coercive means. The detectives presented defendant with justifications for his crime, suggesting A.C. may have consented in the conduct. The detectives told him several times he was lying and asked him to tell the truth. The detectives speculated about the facts of the case and suggested defendant was in love with A.C., that they were in a relationship, and even that she may have initiated some sexual contact. A technique allowing the defendant to share the blame with the victim is permissible and does not render a confession the product of undue psychological coercion. (People v. Simpson (1991) 2 Cal.App.4th 228, 233.) The questions and hypotheticals posed did not imply defendant was innocent or suggest there would be no criminal charges against him. (People v. Holloway, supra, 33 Cal.4th at p. 116.) The detectives conducted permissible questioning. Neither detective made an improper promise or threat to defendant. (People v. Williams, supra, 49 Cal.4th at p. 444.) The "minimization" by detectives of defendant's conduct included no promise of leniency from the prosecutor or the trial court.
Defendant, who was born in 1977, was 36 years old when he was arrested, indicating maturity. He came to the United States when he was seven years old and lived in Tulare County for 29 years, showing he was not new to the country. Defendant worked as a farm laborer, had one misdemeanor arrest in 2006 for cockfighting, and dropped out of school after completing the eighth grade. Defendant owned a car and was purchasing a home, showing an ability to deal with finances. Defendant's interrogation was an hour and five minutes long and occurred midmorning within a few hours of his arrest. Nothing concerning defendant or the interrogation conditions themselves indicate the interrogation was coercive due to its length, its location, or its continuity, as well as defendant's maturity, education (other than the fact he only completed the eighth grade), physical condition, and mental health. (People v. Williams, supra, 49 Cal.4th at p. 436.) Nothing in defendant's background or the conditions of the interrogation made it inherently difficult for him to ask for legal counsel or to voluntarily submit to questioning.
Defendant argues that Garcia's reference to him sleeping in a holding cell indicates he was too tired to be questioned. Sheriff's deputies first went to defendant's home about 6:30 a.m. It is unclear when defendant went to the sheriff's substation, but the interrogation began at 10:45 a.m. and lasted just over an hour. The audio recording of the interrogation gives no indication from the tone of defendant's voice that he was sleepy or had any difficulty tracking and understanding the detectives' questions. There are moments during the interrogation when defendant's answers to questions were animated, indicating he was alert. Rather than showing he was exhausted, defendant's rest in the holding cell could indicate instead that he was rested and refreshed prior to being questioned. The record does not objectively support defendant's contention that he was too tired to be questioned without his will being overborne.
In support of his argument, defendant relies in part on a California appellate decision (In re Elias V. (2015) 237 Cal.App.4th 568) and two decisions from the Massachusetts Supreme Court (Commonwealth v. Baye (2012) 462 Mass. 246 (Baye); Commonwealth v. DiGiambattista (2004) 442 Mass. 423 (DiGiambattista)). In re Elias V. is clearly distinguishable factually from this case because the subject of a very aggressive police interrogation was a juvenile only 13 years old who was not at all sophisticated. The victim was very young and did not expressly and clearly describe the juvenile's inappropriate touching. (In re Elias V., supra, at pp. 591-594.) Furthermore, the investigating officer failed to question any other witness before aggressively questioning the juvenile with so-called contaminated statements. (Id. at pp. 593-594, 597.)
In DiGiambattista, the officers used several forms of trickery to induce a confession from the defendant in an arson investigation, including a videotape with a false label and an artificially thick case file prepared in advance to be used for the interrogation to convince the defendant of the ostensible strength of the case against him. More importantly, during the interrogation, officers suggested to the defendant that some form of therapy would be appropriate in his case rather than treating it as a crime. These methods were found to be coercive by the Massachusetts Supreme Court. (DiGiambattista, supra, 442 Mass. at pp. 434-438.) The court noted the tactic of "minimization" did not by itself compel the conclusion a confession was involuntary. (Id. at pp. 438-439.)
The coercion the Massachusetts Supreme Court found in Baye included an exaggeration by interrogators of the strength of the evidence against the defendant, simultaneous minimization of the moral and legal gravity of the defendant's alleged crimes and, finally, a suggestion that if the defendant did not confess immediately, he would be charged with crimes more serious than those the investigators thought the defendant was guilty of. Investigators mischaracterized the law to the defendant and dissuaded him from consulting an attorney when he asked for one. The defendant's confession was found involuntary under those circumstances. (Baye, supra, 462 Mass. at pp. 257-263.)
The coercive techniques employed by investigators in DiGiambattista and Baye were clearly more numerous and serious than the questions posed by the detectives here. In DiGiambattista, investigators expressly suggested during the interrogation that the defendant would be more appropriately served in therapy, negating in the defendant's mind the possibility the matter was still being treated as a crime. In Baye, investigators threatened the defendant with more serious charges if he did not immediately confess and further dissuaded him from seeking an attorney after he asked for one. The court in DiGiambattista noted the use of minimization was not by itself an impermissible interrogation technique.
Decisions of other jurisdictions are not binding but are persuasive unless they are unsound. (Acco Contractors, Inc. v. McNamara & Peepe Lumber Co. (1976) 63 Cal.App.3d 292, 296, citing People v. Hayne (1890) 83 Cal. 111, 119; see People v. Wade (2016) 63 Cal.4th 137, 141 [analysis of similar statutes by sister state courts persuasive even though legislative history may differ].)
The minimization used by the detectives was not employed to suggest to defendant he was innocent of any crime, and there was no mention of leniency. No threats were employed by the detectives to coerce defendant. After Skrinde suggested defendant and A.C. were in a relationship, Garcia stated this could change everything. But rather than implying defendant's innocence, Garcia immediately suggested defendant forced A.C. to have anal sex. This interrogation technique did not minimize defendant's culpability. Defendant initially denied the detectives' suggestion that he had a relationship with A.C. Later, defendant admitted molesting A.C. but denied using force. In summary, defendant has not demonstrated his interrogators used impermissible coercive techniques that overborne his will. Defendant cooperated with the detectives and his conduct was voluntary.
D. Alleged Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective for failing to challenge his confession as being involuntary. We disagree.
Defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394; In re Hardy (2007) 41 Cal.4th 977, 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Defendant failed to show his assertion that his confession was involuntary had any legal merit. He therefore has failed to demonstrate prejudice and so his ineffective representation argument fails.
III. Exclusion of Evidence of Claudia L.'s Alleged Motive to Fabricate
During cross-examination, defense counsel asked Claudia L. if after the incident she had taken all of the property in the house. The trial court sustained the prosecutor's objection on relevance grounds. Defendant contends the trial court erred in excluding evidence his wife had sole possession of their property after his arrest, which, he claims, gave her a financial motive to fabricate her testimony. Defendant argues the trial court's ruling violated the confrontation clause of the Sixth Amendment, denying him a fair trial. We reject these contentions.
A. Preservation of Issue for Appellate Review
If the trial court excludes evidence on cross-examination, no offer of proof is necessary to preserve the issue for consideration on appeal. (Evid. Code, § 354, subd. (c).) An exception to this general rule applies if the evidence the defendant seeks to elicit on cross-examination is not within the scope of direct examination; in that case an offer of proof is necessary to preserve the issue for appellate review. The offer of proof serves to inform the appellate court of the nature of the evidence the trial court refused to receive, creating an adequate record for appellate review. (Evid. Code, § 773; People v. Foss (2007) 155 Cal.App.4th 113, 127; Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93.)
Defendant relies on Evidence Code section 354, subdivision (c) and further argues the purpose of his question was plainly obvious to the trial court and the prosecutor. The People respond, however, that Claudia was not questioned on direct examination about taking defendant's property. Without an offer of proof, there is no way of discerning how much property Claudia acquired from defendant, if any, or its value. An insufficient value for any property acquired, for instance, would not give Claudia much incentive, if any, to testify falsely against defendant. Because defendant's cross-examination exceeded the scope of the People's direct examination, Evidence Code section 354, subdivision (c) did not excuse him from making a proper offer of proof to the trial court. Defendant has not preserved this issue for appellate review. Alternatively, we reach the merits of defendant's contention and find no error.
B. Cross-examination of Claudia L.
Defendant argues it is evident from the question his counsel asked on cross-examination of Claudia that he was trying to establish her financial motive in testifying against him. The question could have potentially created a trial within a trial over what property was owned by defendant separately from Claudia and would not have illuminated her motives in testifying against defendant much more than other inquiries by defense counsel during cross-examination. The trial court did not err in sustaining the People's objection to defense counsel's objection.
Under the confrontation clause, a criminal defendant has the right to cross-examine witnesses concerning their motive to testify. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679.) The confrontation clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant desires. (Id. at p. 679; Delaware v. Fensterer (1985) 474 U.S. 15, 20; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1386.) Evidence Code section 352 gives trial courts broad latitude to exclude impeachment evidence in individual cases. (People v. Smith (2007) 40 Cal.4th 483, 512.) "'The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.'" (Id. at pp. 512-513; see People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
A trial court's exercise of discretion to exclude evidence does not implicate or infringe a defendant's constitutional right to confront a witness against him unless the prohibited cross-examination might reasonably produce a significantly different impression of the witness's credibility (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Cooper (1991) 53 Cal.3d 771, 816-817; In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) A trial court's evidentiary rulings, including restrictions on a criminal defendant's cross-examination, may not be overturned on appeal absent a clear showing that the trial court abused its discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; People v. Cooper, supra, at pp. 816-817.) The trial court has wide latitude insofar as the confrontation clause is concerned to impose reasonable limits on cross-examination based on concerns of, among other things, harassment, prejudice, confusion of the issues, witness safety, or interrogation that is repetitive or only marginally relevant. (Delaware v. Van Arsdall, supra, 475 U.S. at pp. 678-679; People v. Ledesma (2006) 39 Cal.4th 641, 705; In re Ryan N., supra, at pp. 1385-1386.)
The question asked by defense counsel was, at best, marginally relevant to any attempt to discredit the witness. Even an affirmative response to defense counsel's question would only establish she was obtaining unspecified property due to defendant's incarceration. This was tangential to defendant's broader and more important contention that Claudia described their relationship as shaky, unaffectionate, and argumentative. The jury therefore had before it evidence of Claudia's motive to testify against defendant for reasons other than what she witnessed defendant doing. Defendant assumes from little or no evidence in the undeveloped record that Claudia had a strong financial incentive to embellish the People's case against him.
To bolster his claim that Claudia had financial motive to testify against him, defendant argues she had recently quit working as a farm laborer the December prior to the incident and was not married to him. Defendant argues Claudia was not entitled to property under the community property laws and could gain all of defendant's property, giving her a motive to inculpate him. Whether or not Claudia was entitled to property under California's community property laws, she may well have been entitled to property in the home under an express or implied contract theory, equitable claim, or because property was gifted to her. (See Marvin v. Marvin (1976) 18 Cal.3d 660, 672-674, 684; In re Marriage of Melissa (2012) 212 Cal.App.4th 598, 607.) The trial court had every right to prevent a trial within a trial on the nature and value of the assets owned by Claudia and defendant, which could have caused confusion of the issues and was only marginally relevant (People v. Cooper, supra, 53 Cal.3d at p. 817). Even had defendant made a showing of proof, the trial court would have been justified in sustaining the prosecutor's objection to this line of inquiry to prevent a nitpicking war of attrition over a collateral credibility issue. (People v. Smith, supra, 40 Cal.4th at pp. 512-513; see People v. Lewis, supra, 26 Cal.4th at pp. 374-375.)
Defendant relies on State v. White (Mo.Ct.App. 2002) 81 S.W.3d 561 which found a similar line of questioning relevant. In White, the mother of an allegedly molested child was in a pending divorce action with the defendant, who learned after his conviction that his wife had been romantically involved with the investigating officer. The suppressed facts would have supported the defense theory the mother assisted and encouraged the molestation allegations even if she did not originate them. (Id. at pp. 563-564, 567-570.) The facts in White are completely inapposite to those here where there is no allegation the prosecution withheld evidence and no evidence Claudia substantially profited from the criminal allegations against defendant.
Even assuming Claudia received defendant's property, an appellate court's review of the record is limited to matters contained in the record. The appellant has the burden of furnishing the reviewing court with a sufficient record to consider the issues on appeal. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) Rather than meeting this burden and presenting evidence supporting his claim, defendant evades his burden on appeal behind a flurry of speculation.
A restriction on cross-examination only violates the Sixth Amendment when the prohibited testimony might reasonably have produced a significantly different impression of a witness's credibility. (People v. Cooper, supra, 53 Cal.3d at p. 817, citing Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.) Defense counsel already challenged Claudia's motive to testify against defendant by showing they were in an unhappy relationship. Testimony concerning the property holdings of the couple would not have produced a significantly different impression of Claudia's credibility.
IV. Instructions on CSAAS and Experts
Defendant contends the trial court prejudicially erred when it failed to provide the jury with a special instruction on CSAAS. Defendant alternatively argues the court should have instructed the jury with the general instruction on the use of expert testimony pursuant to section 1127b. Defendant did not request a CSAAS instruction. We find there was no general presentation of CSAAS evidence, the testifying detective did not testify as an expert in CSAAS, an instruction for CSAAS testimony is only required where requested, and although there was no expert witness instruction, any error in failing to so instruct the jury was harmless.
A. Facts
Detective Garcia testified at trial concerning her training and experience in handling sexual assault investigations in hundreds of cases over eight years. Without objection from defense counsel, Garcia testified that victims of sexual assault all react differently. Victims do not always disclose their abuse immediately. In Garcia's experience, this can happen because the victim feels humiliated, is scared to tell someone what happened, or feels the abuse was the victim's fault. Victims sometimes do not tell the entire story and initially disclose only portions of their testimony.
Garcia was recalled as a witness after A.C. testified. She explained it was "extremely common" for sexual abuse victims not to initially disclose everything that happened to them. Garcia added that for many victims, there are so many incidents of abuse, the victims have trouble remembering each individual incident.
Garcia talked to A.C. three or four times the day A.C. first reported the abuse and once a few weeks later. The day the incident was reported, Garcia talked to A.C. in the morning at 8:30, 9:26, and 9:40, and later after lunch. A.C.'s emotional state while Garcia questioned her was "[e]xtremely embarrassed, emotional, crying, [and it was] very difficult for [Garcia] to even get her to open up ... initially."
B. CSAAS
Expert testimony explaining CSAAS is admissible to dispel common misconceptions the jury may have concerning how children react to abuse, but it is inadmissible to prove the child has been abused. CSAAS is a model for understanding the behavior of children who have been sexually abused and to dispel myths that abused children fight back and immediately disclose the abuse. The five components of the model are secrecy, helplessness, accommodation, disclosure, and recantation. Children adopt mechanisms to cope with the trauma of abuse. If the abuser is a family member, it is not unusual for the child to continue to show the abuser affection. Most children delay disclosure, if they disclose at all. When the victim does disclose abuse, there can be problems with memory, and details of the abuse may merge. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069-1070.)
Mateo held the Legislature has determined that limiting instructions, pursuant to Evidence Code section 355, need not be given by trial courts sua sponte. Absent a request, the trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted. (People v. Mateo, supra, 243 Cal.App.4th at p. 1071, citing, inter alia, People v. Murtishaw (2011) 51 Cal.4th 574, 590; People v. Cowan (2010) 50 Cal.4th 401, 479; People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [possible narrow exception where the evidence is the dominant part of the case against the accused and is both highly prejudicial and minimally relevant to any legitimate purpose].)
In relevant part, Evidence Code section 355 provides: "When evidence is admissible ... for one purpose and is inadmissible ... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."
The court in Mateo further rejected the defendant's reliance on section 1127b as mandating any clarifying instruction on expert testimony after the basic instruction on expert testimony is given. This is so because under the plain language of the last sentence of section 1127b, no further instruction is necessary. (People v. Mateo, supra, 243 Cal.App.4th at p. 1072.) Although the jury here was not given instructions on expert testimony, as we discuss in more detail below, Detective Garcia's testimony tendered as an expert was limited to her experience as a detective, not as a CSAAS expert, and she did not testify to matters outside her own personal experience.
Section 1127b states:
"When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows:
"Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable.
"No further instruction on the subject of opinion evidence need be given."
One authority relied upon by defendant, People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), held that where there is expert testimony on CSAAS, the jury must be instructed the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. (Id. at p. 394.) As recently analyzed by People v. Mateo, however, it is unclear whether Bowker intended to impose a sua sponte duty on the trial court to give the limiting instruction. Defendant also relies on People v. Housley (1992) 6 Cal.App.4th 947, which held that where there is CSAAS testimony, a trial court has a sua sponte duty to instruct the jury on how to evaluate it. (Id. at pp. 957-959.)
Mateo criticized the reasoning of Housley and Bowker and noted that three cases subsequent to Bowker from the same court held the limiting instruction must be given "'if requested.'" (People v. Mateo, supra, 243 Cal.App.4th at p. 1073, citing People v. Stark (1989) 213 Cal.App.3d 107, 116, People v. Sanchez (1989) 208 Cal.App.3d 721, 735, disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 307, and People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 347-348.) The court in Mateo concluded, "We are confident that Stark, Sanchez, and Bothuel accurately describe the intention of the decision in Bowker." (People v. Mateo, supra, at p. 1073.)
We agree with the People's point that Detective Garcia did not either testify as an expert on CSAAS or make a presentation of CSAAS. Garcia explained that in her personal experience investigating sexual abuse cases over eight years involving hundreds of cases, victims do not react alike, they often do not immediately disclose the abuse or reveal all at once everything that happened, they can fear the disclosure, and they often feel humiliated. The five components of the CSAAS model noted in Mateo are secrecy, helplessness, accommodation, disclosure, and recantation. (People v. Mateo, supra, 243 Cal.App.4th at p. 1069.) The questions Garcia answered from the prosecutor were related to disclosure and, specifically, based on her personal experience, that victims do not necessarily report everything all at once and they can fear disclosure. Garcia did not opine about other aspects of CSAAS such as secrecy, helplessness, accommodation, or recantation.
Had Garcia testified as an expert, covering the full scope of CSAAS, a limiting instruction would still not have been required absent a request from defendant. Garcia's testimony, however, was not that of an CSAAS expert. It was limited to her own personal experience with sexual abuse victims. Garcia did not present CSAAS testimony or provide an expert opinion regarding A.C.'s emotional state other than her personal observations of A.C. Under these circumstances, no CSAAS instruction was necessary and would likely have confused the jury because it would have touched on other CSAAS factors not presented by Garcia or other prosecution witnesses.
C. Expert Opinion Instruction
Defendant alternatively argues the trial court erred in failing to instruct the jury on how to evaluate expert testimony. Under Evidence Code section 801, subdivision (a), an expert can relate an opinion on a subject that is sufficiently beyond common experience if it would assist the trier of fact. Where a witness testifies as an expert, section 1127b imposes a sua sponte duty on the trial court to instruct the jury on how to evaluate the opinion of the witness. (See fn. 8, ante; People v. Haynes (1984) 160 Cal.App.3d 1122, 1137; People v. Lynch (1971) 14 Cal.App.3d 602, 610.)
Evidence Code section 801 provides:
"If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
"(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
"(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Detective Garcia's personal observations of A.C.'s emotional state when she gave her statements was not expert opinion. (People v. Lynch, supra, 14 Cal.App.3d at p. 609 [medical doctor's testimony of physical condition of victim was not expert opinion and was outside the scope of § 1127b].) Garcia had investigated hundreds of sexual abuse cases for eight years. The People argue these observations were based on Garcia's personal observations and therefore are outside the scope of expert opinion. We disagree with the People's assessment on this second point. Garcia's description of how sexual abuse victims act is outside the common experience of most people other than law enforcement investigators and, although it was neither a psychological evaluation nor CSAAS testimony, it did require Garcia's general expertise as an investigator.
The failure of the trial court to give a section 1127b instruction is not prejudicial unless the reviewing court, after reviewing the entire record, determines a different finding might have been rendered by the jury. (People v. Williams (1988) 45 Cal.3d 1268, 1320; People v. Haynes, supra, 160 Cal.App.3d at p. 1137; People v. Lynch, supra, 14 Cal.App.3d at p. 610.)
We note Garcia's testimony was not rebutted by defendant or any other witness. Also, the gravamen of Garcia's testimony was that some victims of sexual abuse do not tell the entire story of the abuse they suffered all at once. This was the point the prosecutor was attempting to corroborate through Garcia's testimony. A.C. talked to Garcia five times, but four of those questioning sessions occurred the same day A.C. initially reported that defendant abused her. Garcia questioned A.C. in the morning at about 8:30, 9:26, and 9:40, and right after lunch. Garcia questioned A.C. one more time a few weeks later. This was not a case where the victim gave different accounts of what happened over a long span of time. Any details A.C. added from her first conversation with Garcia concerning the abuse she suffered were given within five or six hours on the same day. They were not given in an erratic, piecemeal fashion full of contradictions. Garcia's corroborative testimony that abuse victims often do not tell the entire history of their abuse all at once added little to the evidence before the jury.
To the extent that Garcia's testimony regarding how victims of sexual abuse reveal what happened to them was outside common experience, it was based on Garcia's personal observations of A.C. and of other sexual abuse victims. It was not expert testimony based on complex scientific evidence or other matters far beyond the common knowledge of juries, attorneys, and judges that would require a more careful evaluation of the foundation for an expert's opinion. Furthermore, Garcia's expert testimony as an investigator of sexual abuse cases was couched in general terms, described behavior common to abused victims as a class, and did not refer to specific individual victims, including A.C. Failure to give instructions on CSAAS, or on expert testimony, was harmless. (See People v. Housley, supra, 6 Cal.App.4th at pp. 958-959.)
Garcia conceded in her testimony that sexual abuse victims experience a range of reactions when they report abuse. On cross-examination, Garcia admitted she conducted investigations where victims lied. Garcia was asked if it was her place to determine whether someone is telling the truth and if that question was ultimately up to the jury. Garcia replied that investigations take their own course and courts determine the outcome of a case.
Garcia's point that courts ultimately determine the outcome of a case was reinforced by the standard instructions given to the jury. The jury was instructed with CALCRIM No. 200 that it must decide what the facts are, and it alone had to decide what happened based on the evidence presented at trial. The jury was further advised with CALCRIM No. 226 that it alone must judge the credibility and believability of the witnesses. The instructions given to the jury clearly advised it to evaluate the credibility of the victim, her mother, Detective Garcia, as well as the other witnesses who testified at trial.
Given the very limited nature of Garcia's testimony as an expert, as well as Garcia's concession that courts determine the outcome of cases, the absence of an instruction on expert testimony was adequately covered by the standard jury instructions on evaluating witness credibility. Any error in failing to give an instruction on expert testimony was harmless. (People v. Williams, supra, 45 Cal.3d at p. 1320; People v. Housley, supra, 6 Cal.App.4th at pp. 958-959; People v. Haynes, supra, 160 Cal.App.3d at p. 1137; People v. Lynch, supra, 14 Cal.App.3d at p. 610.) We conclude the trial court's failure to give a CSAAS instruction was not error and the absence of an instruction on expert testimony was harmless error.
V. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in closing argument to the jury when she stated defendant's abuse of A.C. was accomplished by duress when he told her she would go to jail if she disclosed the abuse. The People argue the issue is forfeited on appeal for defendant's failure to object to the comment and the argument is meritless. We agree with the People's assertions.
A. Facts and Proceedings
The prosecutor argued there was no time A.C. had not been forced or had not acted under duress during defendant's abuse, from the very first time defendant touched her and told A.C. she would go to jail if she told anyone. The prosecutor described defendant as a father figure in the home who told A.C. she would go to jail, and from then on, A.C. acted under duress. When defendant simulated hitting A.C. prior to pulling off her pants, she subsequently cooperated out of duress and a fear of force for each of defendant's abusive acts.
Later, the prosecutor described duress as the use of direct or implied threat of force, violence, danger, hardship, or retribution significant enough to cause a reasonable person to submit to something he or she would not normally do. It did not have to include bodily injury. Force would include grabbing a victim and not letting her go. Also, the defendant pretending he was going to hit A.C. could be duress. The prosecutor argued that years of abuse of telling A.C. she would go to jail, of not letting go of her, and of forcing A.C. to engage in sexual acts caused A.C. not to talk about the abuse with others. A.C. always worried about going to jail because that was what defendant said would happen to her, which also made her afraid.
B. Forfeiture
When a defendant believes the prosecutor has made remarks during argument that constitute misconduct, he or she is obliged to call them to the trial court's attention by making a timely objection; otherwise no claim is preserved for appeal. (People v. Clark (2016) 63 Cal.4th 522, 577 [absence of objection constitutes forfeiture of issue for appellate review]; People v. Morales (2001) 25 Cal.4th 34, 43-44.) If a prosecutor misstates the law, a timely objection followed by an advisement by the trial court as to the correct rule of law cures any error because jurors are presumed to follow the trial court's instructions. (People v. Houston (2005) 130 Cal.App.4th 279, 312.)
Defendant's counsel failed to object to the comments made by the prosecutor and this issue is not cognizable on appeal. Defendant attempts to evade forfeiture by arguing an objection is not necessary where to do so would have been futile, citing People v. Alvarado (2006) 141 Cal.App.4th 1577, 1585-1586. Defendant has failed to plausibly explain why an objection by trial counsel would have been futile. Furthermore, the court in Alvarado dealt with the issue of a prosecutor vouching for the integrity of her office and the victim. Coupled with a weak prosecution case, the challenged comments were too prejudicial to be dispelled with an admonition from the court. (Ibid.) The same cannot be said here where the trial court properly instructed the jury on the principles of force and duress. (See People v. Forrest (2017) 7 Cal.App.5th 1074, 1082.)
Similarly, defendant's reliance on People v. Kirkes (1952) 39 Cal.2d 719, 721-723, is misplaced because there the prosecutor asserted personal knowledge of the defendant's guilt and implied the defendant would not have been prosecuted had the prosecutor not believed in the defendant's guilt. The alleged misconduct here could have easily been cured with an instruction from the trial court. (See People v. Visciotti (1992) 2 Cal.4th 1, 80.) In an extreme case where the misconduct was pervasive, defense counsel repeatedly but vainly objected to curb the prosecutor's misconduct, and the courtroom atmosphere was so poisonous that further objection would have been futile, defense attorneys have been excused from having to continually object. (People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.) This case does not come remotely close to that extreme. (Ibid.)
Defendant further argues his trial counsel's failure to object constituted ineffective assistance of counsel to avoid the forfeiture rule. Because deciding whether to object is inherently a tactical decision, the failure to do so will rarely establish ineffective assistance of counsel. (People v. Hillhouse, supra, 27 Cal.4th at p. 502.) Where defense counsel's objection would have been overruled, the failure to make a meritless objection does not constitute deficient performance. (People v. Mitcham (1992) 1 Cal.4th 1027, 1080.)
Under the federal Constitution, a prosecutor commits misconduct when his or her conduct infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Clark, supra, 63 Cal.4th at p. 576; People v. Morales, supra, 25 Cal.4th at p. 44.) Under California law, a prosecutor commits reversible misconduct when he or she uses deceptive or reprehensible methods in attempting to persuade the trial court or the jury, and it is reasonably probable an outcome more favorable to the defendant would have occurred without the misconduct. (People v. Clark, supra, at pp. 576-577.)
We find defense counsel's tactical choices sound. We further find, on the merits of defendant's claim, there was no misconduct by the prosecutor because she did not misstate the law. Where there is no misconduct, defense counsel is excused from making a futile objection. Defendant has failed to establish his counsel was ineffective ab initio because defendant has shown neither deficient performance of counsel nor prejudice. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394; In re Hardy, supra, 41 Cal.4th at p. 1018.)
C. Duress
"[T]he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto).) Duress means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed or, to acquiesce in an act one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to be considered in appraising the existence of duress. Other relevant factors including threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. The fact the victim testifies the defendant did not use force or threats does not require a finding of no duress. The victim's testimony must be considered in light of the victim's age and relationship to the defendant. (People v. Cochran (2002) 103 Cal.App.4th 8, 13-15, (Cochran) [suggesting victim would break up the family if abuse disclosed] disapproved on another ground in Soto, supra, at p. 248, fn. 12; accord, People v. Pitmon (1985) 170 Cal.App.3d 38, 50-51, disapproved on another ground in Soto, supra, at p. 248, fn. 12; see People v. Leal (2004) 33 Cal.4th 999, 1004-1005 (Leal) [foregoing definition of duress applies to, inter alia, aggravated sexual assault of child (§ 269), forcible oral copulation (§ 288a, subd. (c)), and forcible lewd and lascivious acts (§ 288, subd. (b)(1))].)
Physical control can create duress without constituting force. Duress as used in the Penal Code for sexual abuse would be redundant if its meaning was the same as force, violence, menace, or fear of immediate bodily injury. Duress can arise from different circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. Where the defendant is a family member and the victim is young, the position of dominance and authority of the defendant and his continuous exploitation of the victim is relevant to whether there was duress. Threatening the victim with the breakup of the family through divorce if the abuse is disclosed is sufficient to constitute coercion. (People v. Senior (1992) 3 Cal.App.4th 765, 774-775.)
Direct threats of violence, hardship, or retribution are not necessarily required; implied threats may also create duress. (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1579.) Conduct such as pushing the victim's head down on the defendant's penis may constitute force (see People v. Neel (1993) 19 Cal.App.4th 1784, 1790, disapproved on another ground in Soto, supra, at 51 Cal.4th p. 248, fn. 12), but physical control can create duress without necessarily also constituting force (People v. Senior, supra, 3 Cal.App.4th at p. 775; accord, People v. Schulz (1992) 2 Cal.App.4th 999, 1005).
Defendant relies on People v. Bergschneider (1989) 211 Cal.App.3d 144 (Bergschneider), disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1027-1028, and People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), disapproved in Soto, supra, 51 Cal.4th at page 248, footnote 12, as examples where the threat of harm to the victim for not submitting to the abuse was distinguishable from the threat of harm if the victim disclosed the abuse. In both cases, the threat was held not to constitute abuse. In Bergschneider, the defendant threatened to "'kick [the victim's] ass'" if she told anyone about the abuse. This was found not to be a serious threat of physical harm. (Bergschneider, supra, at pp. 153-154, fn. 8.) In Hecker, psychological coercion was found insufficient where the defendant told the victim she would damage his marriage and career if she disclosed the abuse. (Hecker, supra, at pp. 1250-1251, fn. 7.)
We find the authorities relied on by defendant to be unpersuasive in light of the more recent authorities such as Soto, Leal, Senior, and Cochran that focus not on a subtle distinction between warnings enjoining disclosure and those directed to noncompliance. A simple warning to a child not to report molestation reasonably implies the child should not resist or protest the sexual advance. (People v. Senior, supra, 3 Cal.App.4th at p. 775.) Cases like Bergschneider and Hecker fail to focus on the difference between force and duress. Duress can involve coercion of a victim with threats to the well-being of the family. Bergschneider and Hecker further fail to consider the totality of the circumstances involving the power differences between perpetrators and their victims, including size and age differential. The court in Cochran specifically found the holding in Hecker overbroad, noting that "[t]he very nature of duress is psychological coercion." (Cochran, supra, 103 Cal.App.4th at p. 15.)
Defendant argues the prosecutor's argument failed to treat a threat to retaliate for disclosure as a relevant circumstance to establish duress but as duress in itself. Defendant likens the prosecutor's statement of law as being equivalent to a prosecutor arguing that flight from the scene of a crime is sufficient to prove guilt rather than only an inference the jury could draw to show guilt. We reject this argument as well as defendant's analogy to flight. As noted in Senior and Cochran, threats to the stability of the family are sufficient to constitute coercion. On multiple occasions, defendant threatened A.C. with her own criminal prosecution if she disclosed the abuse. Given her young age when the abuse started, and the direct threat defendant's comment made to A.C.'s personal security, there is no doubt defendant's comment was coercive.
Further the People accurately assert that the prosecutor did not rely only on this one form of threat to establish coercion. The prosecutor also argued to the jury that duress was present because defendant physically pulled A.C. during abuse, simulated hitting her, restrained her, and ignore her when she said no. The prosecutor did not misstate the law, nor did she commit misconduct in her closing argument to the jury.
VI. Cumulative Error
Defendant asserts all of the foregoing issues constitute cumulative error. Where, as here, defendant's assignments of error are rejected, there is no cumulative error. (People v. Jenkins (2000) 22 Cal.4th 900, 1056; People v. Bradford (1997) 15 Cal.4th 1229, 1382; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
VII. Defendant's Request to Discharge His Counsel
At the end of the trial, defendant requested the trial court discharge his retained counsel. Defendant contends the trial court applied the incorrect standard in People v. Marsden (1970) 2 Cal.3d 118 (Marsden) reserved for appointed counsel. There was no error.
A. Discharge Request
The trial court took a recess after the prosecutor finished her closing argument. Defense counsel began his closing argument after the recess. Right after counsel began his argument, defendant told the translator he wanted to speak to the court. The trial court excused the jury and conducted a brief hearing. Defendant told the court he wanted to fire his attorney. When asked why, defendant replied his attorney had not helped him, he had lied to him, and he would tell him one thing one day and another thing a different day. The court said it would conduct a Marsden hearing after the case was submitted to the jury.
After defense counsel finished his closing argument to the jury, the court conducted what it called a Marsden hearing. The court asked defendant why his lawyer had not helped him. Defendant replied counsel had not helped him in anything and had lied to him. Defendant asserted counsel failed to "take away" the force allegation and only visited defendant once in the past year. Defendant said counsel mentioned a plea bargain for between 10 and 20 years, but later denied mentioning this offer to defendant.
During trial testimony, defendant gave counsel questions to ask three of the witnesses, including A.C., but counsel did not ask any of defendant's questions. Defendant said he had a right to fire his attorney and wanted to do so then. When the court asked defendant if he intended to hire a new attorney, defendant replied, "For now, no."
Defense counsel explained he used an interpreter every time he talked to defendant. Counsel said he never told defendant he could take the issue of force out of the picture, but it would be a point in his argument. Counsel said he met with defendant on numerous occasions and went over defendant's statement in detail. Counsel explained defendant apparently misunderstood the People's pending plea offer, which stood at 32 years. Counsel told defendant he would try to negotiate a term of 10 to 20 years. Counsel reviewed the questions defendant wanted him to ask the witnesses, but determined the questions would not engender any sympathy by the jury for him, they were not relevant to the issues in the case, and, as a trial tactic, counsel did not think the questions would help defendant's case.
Defendant further complained that "[m]any times [he] was forced to extend the time" to trial. Defendant said his trial counsel was going to hire a nurse, but then he told defendant during trial that he did not need one. The court explained to defendant that because the prosecutor did not call a nurse, the defense did not need to call one to counteract testimony that was never given.
Defendant reiterated his desire to fire his attorney. The court found defendant had no credibility and was untruthful based on his testimony during the pretrial suppression motion. The court found the evidence of defendant's involvement in sexual conduct was overwhelming. The court further found: "It appears to the court that the defendant is doing everything he can to create error in the record so that he won't face the consequences of his criminal conduct." The court told defendant his counsel would remain attorney of record through the verdict and after the verdict was returned, defendant could fire his attorney at that time. The court told defendant he could hire a new attorney or the court would appoint the public defender to represent him.
After the jury returned its verdicts, the court asked defendant if he still wanted to discharge his counsel. Defendant replied affirmatively. The court explained to defendant that if he wanted his attorney to remain, he could; otherwise, defendant could fire him. The court noted the defense attorney had done a good job representing his client. When the court asked defendant if he was keeping his attorney, defendant replied he did not want anyone. The court asked defendant if he wanted to represent himself and he said, "No." When asked if he wanted his attorney or the public defender to represent him, defendant responded, "Public Defender." The court relieved defendant's retained counsel and appointed the public defender's office to represent defendant.
B. Analysis
The right to retained counsel is guaranteed under the Sixth Amendment to the federal Constitution, subject to certain limitations. In California, this right reflects not only a defendant's choice of a particular attorney, but also his or her decision to discharge an attorney hired by the defendant but whom he or she no longer wishes to retain. (People v. O'Malley (2016) 62 Cal.4th 944, 1004 (O'Malley); People v. Verdugo (2010) 50 Cal.4th 263, 310-311 (Verdugo).) To discharge retained counsel, the defendant need not demonstrate either that counsel was providing inadequate representation, or that the defendant and counsel are embroiled in irreconcilable conflict. That standard is applicable when a defendant seeks substitution of appointed counsel pursuant to Marsden. Consistent with the Sixth Amendment right to counsel, retained counsel may be discharged by the defendant with or without cause. (O'Malley, supra, at p. 1004; People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).)
The right to retained counsel is not absolute. The trial court has discretion to deny the motion if discharge will result in significant prejudice to the defendant or if it is untimely, resulting in disruption of the orderly processes of justice. (O'Malley, supra, 62 Cal.4th at p. 1004; Verdugo, supra, 50 Cal.4th at p. 311.) While a defendant seeking to discharge his or her retained attorney is not required to demonstrate inadequate representation or an irreconcilable conflict, the trial court can properly consider the absence of such circumstances in deciding whether discharging counsel will result in disruption of the orderly processes of justice. (O'Malley, supra, at p. 1004; People v. Maciel (2013) 57 Cal.4th 482, 513 (Maciel).) Even where the trial court incorrectly refers to the discharge hearing as a Marsden hearing, there is no error if the trial court has considered proper matters in the discharge of retained counsel, such as the timeliness of the motion and whether it will result in the disruption of the orderly processes of justice. (Maciel, supra, at p. 513.)
Defendant argues that when he initially made his motion, the court should have questioned him more carefully concerning whether he wanted to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. Defendant also argues the trial court misunderstood discharging retained counsel was not done according to the Marsden standard, and the trial court's only consideration was efficiency of the proceedings. As for defendant's Faretta argument, he did not request or in any way indicate he wanted to represent himself. At the hearing conducted after defense counsel completed his closing argument, defendant clearly stated he did not want to represent himself.
Although the trial court referred to Marsden when defendant initially made his motion and then during the hearing to discharge counsel, and the court also referred to defense counsel's competency during the discharge hearing, the court expressly stated at both stages it understood defendant's right to fire his attorney. The trial court refused to allow defendant to discharge counsel in the middle of counsel's closing argument to the jury. After conducting the discharge hearing, the court specifically queried defendant concerning whether he wanted to represent himself, to retain new counsel, or to have a court-appointed attorney. The trial court was undeniably aware of defendant's right to fire his attorney and allowed defendant to do so after the jury rendered its verdicts. The trial court's reference to matters covered during Marsden hearings is relevant and permissible, especially where the defendant himself has raised these points. (O'Malley, supra, 62 Cal.4th at p. 1004; Maciel, supra, 57 Cal.4th at pp. 513-514.)
Contrary to defendant's argument on appeal, the timeliness of a motion to discharge counsel and its potential disruption on court processes is specifically a proper consideration noted by the California Supreme Court in O'Malley, Maciel, Verdugo, and Ortiz. The motion to dismiss counsel in Maciel occurred on the eve of trial in a case that had been pending for two years. The codefendants were concerned about further delay. (Maciel, supra, 57 Cal.4th at pp. 512-513.) The trial court properly considered the delay in the orderly processes of justice in denying the defendant's motion to discharge his retained counsel. (Id. at p. 513.)
Here, defendant made his initial motion at the beginning of and in the middle of his counsel's closing argument to the jury. This was both untimely and disruptive of the trial process. The trial court described this tactic as one to create error in the record so defendant would not face the consequences of his criminal conduct. The record fully supports the trial court's observation. The trial court here granted defendant's motion to discharge his counsel and appointed the public defender to represent defendant in further proceedings, after allowing defense counsel the opportunity to finish his closing argument and for the jury to complete its deliberations. The trial court committed no error in delaying defendant's motion to dismiss his attorney.
Defendant argues his case is similar to People v. Lara (2001) 86 Cal.App.4th 139, a case where the trial court incorrectly applied Marsden to a case involving retained counsel rather than following the standard set forth in Ortiz. (People v. Lara, supra, at pp. 164-166.) We held in Lara that a court unaware of its discretionary powers cannot exercise informed discretion. (Id. at pp. 165-166.) Unlike the trial court in Lara, however, the trial court here was well aware of its discretion to allow the defendant to discharge his attorney and granted his motion, though not when it was initially made.
VIII. Motion for New Trial
Defendant's public defender filed a motion for new trial, specifically briefing the issue of whether defendant's retained counsel was ineffective for failing to give defendant accurate legal advice concerning the risks of trial and the desirability of a negotiated plea. Defendant executed a declaration stating he believed his retained counsel's representation was ineffective and fell below the constitutional requirement for competent counsel because his speedy trial rights were violated when defendant overheard the prosecutor state there was difficulty locating a key witness. According to defendant, his retained counsel did not want a speedy trial and told defendant to waive time.
The following comprises defendant's remaining assertions of ineffective assistance of counsel. Defendant claimed he asked his counsel about hiring a nurse, but he was told a nurse was not needed. Defendant asserted his recorded interrogation was used as evidence even though the detective used foul language. Defendant's retained counsel told him his child could not be called as a witness against him. Defendant asked for a plea bargain of 10 to 20 years in prison but counsel said he could not do that. Defendant gave questions for retained counsel to ask the witnesses that were not asked during trial. Defense counsel failed to adequately cross-examine witnesses about potentially inconsistent statements during their preliminary hearing testimony. Defendant wanted to testify at trial but retained counsel told him he could not. And defendant asked to fire his attorney but the judge denied his request.
Defendant contends the trial court erred in denying his motion for a new trial based on ineffective assistance of trial counsel. We find no error.
The defendant has the burden of proving ineffective assistance of trial counsel, and to prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. Prejudice is shown when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394; In re Hardy, supra, 41 Cal.4th at p. 1018.) A reasonable probability is one sufficient to undermine confidence in the outcome. The second question is not one of outcome determination but whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Hardy, supra, at p. 1018.)
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury, supra, 30 Cal.4th at p. 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; see People v. Mendoza, supra, 24 Cal.4th at p. 166.)
On direct appeal, reversal of a conviction for ineffective assistance of counsel will only occur if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there could be no satisfactory explanation for counsel's choices. All other claims of ineffective assistance of counsel are more appropriately resolved in a habeas corpus proceeding. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
The allegations of ineffective representation of retained counsel raised in defendant's motion for new trial were raised during the hearing to dismiss counsel. Defendant's retained counsel explained no expert opinion of a nurse was necessary because the People did not call their own nurse to testify. Counsel explained he did not ask defendant's questions of the prosecution witnesses because the questions would not create any sympathy in the jury for defendant, they were not relevant to the issues in the case, and, as a trial tactic, counsel did not think the questions would help defendant's case. Counsel explained defendant misunderstood the People's pending plea offer, which stood at 32 years. Counsel told defendant he would try to negotiate a term of 10 to 20 years.
Defendant asserted in his motion for new trial that he wanted to testify in his own defense. The trial court had earlier found defendant's testimony during the pretrial suppression hearing to be untrustworthy and untruthful. Defense counsel had a solid and reasonable tactical basis not to ask the questions defendant sought to pose to witnesses and not to have defendant testify. Defendant's assertion that he was not told of a plea bargain of 10 to 20 years was refuted by defense counsel who said the best offer from the prosecutor was 32 years, he tried to negotiate a better offer, and he had communicated the prosecutor's offer to defendant. As for defendant's assertion that defense counsel acquiesced to continuances, the trial court was entitled to reject this assertion, as well as defendant's other assertions, based on defendant's lack of credibility as a witness.
Defendant further contends his original trial counsel told him he could not testify at trial even though he wanted to do so. At the conclusion of defendant's motion to suppress his confession, the trial court found defendant's testimony "inherently unreliable," not convincing, and that defendant's testimony did not help him. Toward the end of trial as counsel were going through jury instructions, the trial court noted to defense counsel it did not intend to give CALCRIM No. 361 on the failure to explain or defend adverse testimony because defendant was not going to testify. Defense counsel replied, "Well, he probably won't." There is no other indication in the record concerning trial counsel's advice to defendant as to whether he should or should not testify. In denying defendant's motion for a new trial, the trial court expressly found that defendant had no credibility with the court.
A trial court has broad discretion in ruling on a motion for new trial. There is a strong presumption it properly exercised its discretion. The determination of a motion for new trial will not be disturbed on appeal unless an unmistakable abuse of discretion occurs. (People v. Fuiava (2012) 53 Cal.4th 622, 730.) In making these determinations, the trial court must make its own determinations of witness credibility. (People v. Carter (2014) 227 Cal.App.4th 322, 328.) Defendant has failed to demonstrate substandard representation by his retained counsel, prejudice due to counsel's alleged deficient representation, or error in the trial court's ruling on his motion for new trial. Defendant has raised matters, especially concerning his trial counsel's advice concerning whether he could or should testify at trial, that are outside the record and best resolved by a petition for writ of habeas corpus. (People v. Mai, supra, 57 Cal.4th at p. 1009.)
Defendant argues the trial court improperly relied on its finding made at the conclusion of the pretrial suppression hearing that defendant lacked credibility. Defendant suggests the court should have relied instead on his declaration to reevaluate defendant's credibility. The trial court did not err in relying on the earlier suppression hearing in weighing defendant's credibility. Furthermore, the trial court also had the opportunity to evaluate defendant's credibility during the hearing on defendant's motion to dismiss his attorney. We note that many of the issues raised during that hearing were raised again in the motion for new trial, and the court was entitled to consider retained counsel's statements in weighing defendant's credibility.
IX. Sentencing Issues
Defendant contends there were sentencing errors which, except for a section 294, subdivision (b) restitution fine, the People concede. We find each of defendant's contentions meritorious.
A. Section 294 Restitution Fine
The trial court imposed a $1,000 restitution fine on count 18, a violation of section 286, subdivision (c)(2)(C), pursuant to section 294, subdivision (b).
Section 294, subdivision (b) provides, in pertinent part: "Upon conviction of any person for a violation of Section 261, 264.1, 285, 286, 288a, or 289 where the violation is with a minor under the age of 14 years, the court may ... order the defendant to pay a restitution fine based on the defendant's ability to pay ...."
Although section 286 is one of the statutes listed in section 294, subdivision (b) for which a restitution fine can be imposed, it can only be imposed when a victim is under the age of 14 years. The allegation in count 18 was a violation of section 286, subdivision (c)(2)(C) which expressly applies to a minor 14 years or older. The remaining counts alleged violations of sections 269 and 288. Neither of these statutes are enumerated in section 294. Since the trial court was without statutory authority to impose the $1,000 fine and the issue is not forfeited for failure to raise it in the trial court, we will order the fine stricken. (People v. Chambers (1998) 65 Cal.App.4th 819, 823, citing In re Harris (1993) 5 Cal.4th 813, 839; see People v. Breazell (2002) 104 Cal.App.4th 298, 304-305 [issue not waived for failure to raise in trial court].)
The People respond that because a violation of section 269, subdivision (a)(3) necessarily involves a violation of section 286 where the victim is under the age of 14, the court was still authorized to impose the restitution fine. The cases cited by the People, however, do not involve statutory interpretation of restitution fines and are factually inapposite to this case. (See People v. Jimenez (2000) 80 Cal.App.4th 286, 290-291 [cross-referenced statute required only a violation, not a conviction]; People v. Glass (2004) 114 Cal.App.4th 1032, 1037-1038 [same].) As defendant correctly observes, the fact that he was convicted for violating section 269 does not mean he also violated section 286 for restitution purposes. For the restitution fine to be applicable to defendant, under the express terms of section 294, subdivision (b) he must suffer a "conviction" for one of the enumerated statutes on a victim under 14 years of age. This did not occur in count 18. We will strike the section 294 restitution fine as unauthorized. (People v. Simmons (2015) 233 Cal.App.4th 1458, 1477-1478.)
B. Presentence Custody Credits
Defendant contends, and the People concede, he was entitled to one more day of custody credit, which would have included the day of his arrest. (People v. Smith (1989) 211 Cal.App.3d 523, 526 [custody credits include day of defendant's arrest].) Defendant was arrested on April 9, 2014. Defendant was sentenced on September 9, 2015. The court granted defendant custody credits for time served prior to sentencing of 518 days. Counting the first day of incarceration, however, defendant was entitled to 519 days of credits for actual time in custody.
C. Restitution Fines Pursuant to Sections 1202.4 and 1202.45
Separate abstracts of judgment were prepared for defendant's indeterminate sentence and his determinate sentence. Both abstracts of judgment listed a restitution fine of $10,000 pursuant to sections 1202.4, subdivision (b) and 1202.45 (suspended). Only a single restitution fine may be levied against a defendant pursuant to these Penal Code provisions. (See People v. Soria (2010) 48 Cal.4th 58, 62-66.)
Defendant argues the California Department of Corrections and Rehabilitation could surmise from the two abstracts of judgment that defendant owes restitution of $20,000 rather than only $10,000. The trial court's pronouncement of judgment and the clerk's transcript of the sentencing make clear there is only a single $10,000 fine. We agree with defendant there is the possibility of confusion. Because the case has to be remanded to correct other entries in the abstract of judgment, we will direct the trial court to cross-reference the restitution fines in sections 1202.4 and 1202.45 in each abstract of judgment to indicate there is a single $10,000 fine pursuant to each statute.
D. Correction of Designation of Offense in Count 18
As already noted, defendant was convicted in count 18 of sodomy of a child over 14 years of age with force pursuant to section 286, subdivision (c)(2)(C). The abstract of judgment for defendant's determinate sentence correctly indicates defendant was convicted of committing sodomy by use of force, however, it indicates he was convicted in count 18 of section 288, subdivision (c)(2). This is clerical error that can be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.)
DISPOSITION
The case is remanded for the trial court to strike the $1,000 restitution fine imposed pursuant to section 294, subdivision (b). The court shall amend the abstract of judgment to reflect this change and that defendant's conviction on count 18 was for a violation of section 286, subdivision (c)(2)(C). The court shall further indicate in the amended abstracts of judgment for defendant's determinate and indeterminate sentences that the court imposed a single restitution fine of $10,000 pursuant to sections 1202.4, subdivision (b) and 1202.45 (suspended). The court shall forward the amended abstracts of judgment to the appropriate authorities. The judgment is otherwise affirmed.
/s/_________
BLACK, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------