Opinion
F073881
09-10-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD WAYNE SHEPHERD, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kevin M. Cornwall, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCR048857)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Ronald Wayne Shepherd was found guilty as charged of two counts of digitally penetrating a minor (Pen. Code, § 288.7, subd. (b)), one count of sexually penetrating a minor by force, violence, duress, menace, fear or threat (§ 269, subd. (a)(5)), five counts of willfully and unlawfully committing a lewd and lascivious act upon a minor by use of force, violence, duress, menace, and threat of great bodily harm (§ 288, subd. (b)(1)), and one count of raping a minor (§ 269, subd. (a)(1)). Minor was Shepherd's stepdaughter. It was found true that Shepherd had suffered two prior strike convictions and the trial court sentenced Shepherd to an indeterminate term of 330 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal Shepherd contends he received ineffective assistance of counsel when counsel failed to request an instruction on voluntary intoxication. He also contends there is insufficient evidence to prove he used force or duress in order to commit the five allegations of committing a lewd or lascivious act. We affirm.
STATEMENT OF THE FACTS
On multiple occasions over the course of four years, Shepherd assaulted minor, then between the ages of eight to 12 years old. The incidents included touching and inserting his finger into her vagina; touching, squeezing and licking her breasts; grabbing her hand and placing it on his penis and telling her to "[p]lay with it"; touching her cheek with his penis and pushing her mouth toward his penis; getting on top of her and kissing and biting her neck; putting his mouth on her vagina; and, on one occasion, inserting his penis into her vagina. Although minor "sometimes" told Shepherd to stop, he repeatedly told minor that it was "okay," that he loved her, that he "liked it," and that she could not tell anyone, especially her mother, as nobody would believe her if she did. In response to the acts, minor "froze."
While minor's mother kicked Shepherd out of the house on a number of occasions, minor finally told her mother what had happened after mother told minor Shepherd would not be coming back. Mother contacted law enforcement, who set up a "pretext" telephone call between mother and Shepherd. In the call, Shepherd admitted performing sex acts with the minor, but claimed it did not happen "that long ago" and that minor instigated some of the acts. He claimed to be "wired" or "high on dope" when some of it occurred.
Mother received two letters from Shepherd after he was arrested in which he mentions each child in the family and states he is "sorry."
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Shepherd contends trial counsel provided ineffective assistance by failing to request a jury instruction regarding voluntary intoxication, such as CALCRIM No. 625. CALCRIM No. 625, provides, in relevant part: "You may consider evidence, if any, of the defendant's voluntary intoxication ... only in deciding whether the defendant acted" with the specific mental state required to be convicted of a specific intent crime. Shepherd's contention rests on the evidence offered by the prosecution in the form of the pretext call to mother, in which he claimed to be under the influence at the time of some of the charged offenses. We reject Shepherd's contention.
Background
In the pretext telephone call offered by the prosecution, Shepherd, when confronted with the alleged acts by mother, stated he did not know why it first happened, but that he was "on a come down or come up" and was "wired." He then repeated that he did not know why it originally happened, but that it "turned [into] some kind of game" initiated by minor. Shepherd again stated the events occurred when he was "high on dope or whatever on a come down," but that minor instigated the acts. At one point, Shepherd appears to place the blame on mother noting she told him to "[g]o fuck somebody" during one of their many fights. Later during the call, mother referred to having told Shepherd to leave the house because his drinking "was getting outta hand" and accused him of destroying their lives by "getting' high, wanting to watch porn and then taking it out on a little girl."
During minor's lengthy trial testimony, she did not describe any specific behaviors indicating Shepherd's state of mind was affected by intoxication or being under the influence.
At trial, Shepherd did not offer an affirmative defense. In closing, defense counsel noted briefly that Shepherd had not testified at trial, but that "in some ways there is evidence from [him]," namely the pretext telephone call and the letters he wrote. Shepherd's primary defense was that the prosecution failed to prove minor was 10 years old or younger, as required, during the commission of several of the offenses, as evident by Shepherd's statement in the pretext call that the misconduct only "started two years ago." Defense counsel also argued the prosecution failed to prove the requisite use of force or fear in committing the acts. Intoxication and Specific Intent
Shepherd was charged with eight specific intent crimes; only the rape charge was a general intent crime. Lewd and lascivious conduct upon a child under the age of 14 (counts 4, 5, 6, 8, & 9) requires proof of specific intent. (People v. Ogg (2013) 219 Cal.App.4th 173, 180, citing § 288, subd. (a).) When, as here, a violation of section 288.7, subdivision (b) is based on sexual penetration of a child (counts 1 & 3) it is a specific intent crime. (People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167; People v. Ngo (2014) 225 Cal.App.4th 157, 170.) This is so because section 288.7, subdivision (b) proscribes sexual penetration, "as defined in Section 289," with a child. Subdivision (k)(1) of section 289 in turn defines sexual penetration as anal or genital penetration, by any foreign object, "for the purpose of sexual arousal, gratification, or abuse ...." In light of subdivision (k), a violation of section 289 is a specific intent crime. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1539-1540.) The same is true of sexual penetration of a child pursuant to section 269, subdivision (a)(5) (count 2), which also incorporates section 289.
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent ...." (§ 29.4, subd. (b).) "Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (§ 29.4, subd. (c).) Voluntary intoxication may negate the existence of a specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677.)
The trial court is not required to instruct the jury sua sponte on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1117; People v. Olivas (2016) 248 Cal.App.4th 758, 770 (Olivas).) Even if the instruction is requested by the defense, the court need not give the instruction unless it is supported by substantial evidence that: (1) the defendant was intoxicated, and (2) the intoxication affected the defendant's actual formation of the relevant specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Olivas, supra, at p. 771.)
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel in violation of defendant's right under the Sixth Amendment to the United States Constitution, defendant must show that counsel's performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) Deficient performance is rarely shown if there was a tactical reason for trial counsel's conduct. (See People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics"]; People v. Bolin (1998) 18 Cal.4th 297, 317 [no reversal when alleged failure to object "may well have been 'an informed tactical choice within the range of reasonable competence"].) To prove prejudice, defendant bears the burden to show a reasonable probability that, but for his trial counsel's errors, the result would have been different. (Ledesma, supra, at pp. 217-218.) A reasonable probability is one "'sufficient to undermine confidence in the outcome.'" (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694 (Strickland).)
As to the deficient performance prong, there is "no expectation that competent counsel will be a flawless strategist or tactician" (Harrington v. Richter (2011) 562 U.S. 86, 110 (Richter)) and counsel's strategy is not constitutionally deficient just because it may not have worked. (Id. at p. 109 [defense counsel is not incompetent merely because the defense strategy did not work out as well as counsel had hoped].)
Here, there was insufficient evidence to support a voluntary intoxication instruction. Shepherd's pretext telephone call did not constitute substantial evidence that he was so intoxicated or under the influence he could not entertain the requisite specific intent to commit the alleged acts. Shepherd merely offered being drunk or high as one of a number of different excuses for his overall behavior, without relating the excuse to any of the specific instances of abuse about which he was being questioned. At trial, minor did not state Shepherd appeared or acted drunk or high during any of the acts.
And in closing, defense counsel argued the prosecution failed to establish that the acts occurred when minor was under the age of 10, as required by certain allegations, or that Shepherd used force or fear when committing the acts. Therefore, Shepherd's primary defense theory required the jury to find him credible. To remind the jury that Shepherd may have been under the influence when he committed the sexual offenses could only have damaged Shepherd's credibility.
Therefore, the fact that defense counsel did not request the instruction did not make his performance deficient. Counsel is not required to make futile requests for instructions for which there is no substantial evidence. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel not required to make futile objections].)
Furthermore, the absence of the intoxication instruction benefited Shepherd, because the instruction would have highlighted for the jury the limited use of evidence of intoxication, which can be considered "solely" on the issue of whether the defendant "actually" formed the specific intent. (§ 29.4; Olivas, supra, 248 Cal.App.4th at p. 770.) Moreover, the instruction was inconsistent with the defense here, which was that the prosecution failed to prove each element of the offenses beyond a reasonable doubt.
Finally, Shepherd fails to establish prejudice. To satisfy the burden of establishing prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.'" (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, at p. 112.)
Shepherd fails to carry his burden of proving prejudice for many of the reasons he failed to satisfy the deficient performance prong. Had the jury been given the intoxication instruction, Shepherd would have fared no better because as we have noted, there was no evidence indicating intoxication negated the required specific intent here—the intent to arouse, appeal to, or gratify his lust, passions, or sexual desires or that of minor. Quite the contrary, there was abundant evidence establishing the specific intent element here. Shepherd has failed to prove a reasonable probability that he would have received a more favorable result had the instruction been given.
We conclude trial counsel did not render ineffective assistance of counsel.
II. SUFFICIENCY OF THE EVIDENCE
Shepherd contends insufficient evidence supports the force, violence, duress, menace, or fear element of each of his convictions for committing a lewd or lascivious act on a child under the age of 14, in violation of section 288, subdivision (b)(1). We disagree.
"'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]' [Citations.] All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. [Citation.] Reversal on this ground is unwarranted unless '"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."' [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
Section 288 provides in relevant part as follows:
"(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
"(b)(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years."
"A defendant uses 'force' if the prohibited act is facilitated by the defendant's use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.' [Citations.] '[A]n act is forcible if force facilitated the act rather than being merely incidental to the act.' [Citation.] '[A]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves' are sufficient to support a finding that the lewd act was committed by means of force." (People v. Garcia (2016) 247 Cal.App.4th 1013, 1023-1024.)
Shepherd contends the prosecutor incorrectly stated in closing that the element of force was established if minor "just submitted." However, what the prosecutor argued at that point, was as follows:
"The People believe the evidence supports a conviction regarding the forcible counts because the force is present. The mind games are present, the manipulation's present, the evidence is that she froze. She did occasionally say no. And she did try to resist when his penis hit her cheek. She was resisting. [¶] However, time and time again he keeps coming back, and sometimes she's just freezing and submitting, which is not consent. And it doesn't show that she then chose that these acts are forcible."
The evidence at trial was that force was used in several of the acts when Shepherd grabbed minor's hand and wrapped it around his penis to manually masturbate him. He placed his hand on hers while she held his penis and, if she let go, Shepherd would grab her hand and put it back. In another instance, Shepherd placed his hand on minor's head as she held his penis and used his other hand to push her head towards his penis.
And more importantly, despite Shepherd's claim to the contrary, there is substantial evidence of duress in each alleged instance of a lewd and lascivious act. "'[D]uress' as used in section 288(b)(1) means a "'direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted."' [Citations.]" (People v. Soto (2011) 51 Cal.4th 229, 246, italics omitted.)
"'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.'" (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14 (Cochran), disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12.) "'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 the existence of duress." (People v. Senior (1992) 3 Cal.App.4th 765, 775.) Threats of harm to the victim, physically controlling the victim when the victim attempts to resist, and warning the victim that revealing the molestation would result in jeopardizing the family are other relevant factors to consider. (Cochran, supra, at p. 14.) And because duress is measured by a purely objective standard, "a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior." (People v. Soto, supra, 51 Cal.4th at p. 246.)
The very first time Shepherd abused minor, when she was eight years old, Shepherd told minor she could not say anything about what had happened and that her mother would not believe her. Shepherd repeatedly made this statement over the course of the molestations. When minor was asked why she did not report Shepherd raping her when she was 11 or 12 years old, minor sated she "kept on thinking, what if nobody believed me?" When asked why she thought that, she stated Shepherd "kept saying nobody would believe me."
Shepherd, as minor's stepfather, was in a position of authority over her. He was also physically bigger than her, leading to her sense of relative physical vulnerability. In Cochran, involving a nine-year-old victim, the court stated that, "as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (Cochran, supra, 103 Cal.App.4th at pp. 15-16, fn. 6.) Sufficient evidence of duress exists as to all acts of lewd and lascivious conduct and we reject Shepherd's claim to the contrary.
Shepherd makes a further claim that, because there was evidence of additional uncharged acts that occurred against minor and the jury was told it was not restricted to any of the acts within each date range, "special verdicts" were required as the record does not establish he was convicted based on acts that would qualify under section 288, subdivision (b). We disagree.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "[T]he jury must agree unanimously the defendant is guilty of a specific crime." (Ibid., italics omitted.) "Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.)
In People v. Jones (1990) 51 Cal.3d 294 (Jones), the California Supreme Court discussed unanimity when "'generic'" testimony is presented in child molestation cases. Generic testimony occurs when the defendant "lives with his victim," and the victim "testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (Id. at p. 299.) Jones announced the following rule for unanimity instructions in cases involving generic testimony: "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at pp. 321-322.)
CALCRIM No. 3501 was given here, which acknowledged that the People "presented evidence on more than one act to prove that [Shepherd] committed these offenses ...," but that the jury was not to find Shepherd guilty unless the People had proved at least one of these acts and the jurors agreed on which act he committed for each offense. Alternately, the jurors could find Shepherd guilty if they agreed the People had "proved that [Shepherd] committed all the acts alleged to have occurred during the time periods and ha[d] also proved that [Shepherd] committed at least the number of offenses charged." The jury was also instructed, with regard to section 288, subdivision (b)(1), that the People were required to prove Shepherd "used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else" in accomplishing the lewd or lascivious act.
Jurors are presumed to have followed the court's instructions. (People v. Forrest (2017) 7 Cal.App.5th 1074, 1083.) We therefore assume the jurors understood that they had to agree on specific acts, as instructed pursuant to CALCRIM No. 3501. In addition, this was made clear by the prosecutor, who during closing argument stated, "Remember, when you're discussing all this, you have to agree, you have to be unanimous about which act it is. Is it the penis touching the cheek? Is it the licking of the breasts?" He further stated, "Some of the acts didn't start until she was a later age. Some of the acts were continuous from age 8 until age 12. You are the finders of fact and you need to figure this out."
The jurors found Shepherd guilty of each count. Despite Shepherd's claim to the contrary, the fact that the jurors were provided evidence of additional, noncharged instances of sexual abuse has no effect on the validity of their verdicts.
DISPOSITION
The judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SMITH, J.