Opinion
C081742
07-06-2018
THE PEOPLE, Plaintiff and Respondent, v. ROY DALE TODD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P14CRF0626)
Defendant contends the trial court and his own lawyer deprived him of his constitutional right to a fair trial on charges of molesting his third daughter, after spending seven years in prison for various sex crimes against his other two daughters. He challenges a number of unfavorable evidentiary rulings and the adequacy of the legal representation he claims did not satisfy his constitutional right to competent counsel. Finding the trial court did not abuse its discretion in allowing in, and keeping out, evidence and no evidence his lawyer's representation fell below the requisite standard or prejudiced the outcome, we affirm.
FACTS
The evidence heard by the jury was sad and disturbing. Defendant Roy Dale Todd does not challenge the sufficiency of the evidence, and for that reason it is unnecessary to recount those facts in detail. In summary, defendant's stepdaughter and biological daughter from a previous marriage (Jane Does 2 and 3) were allowed to testify and they described a disturbing pattern of molestation and sexual abuse from when they were four or five years old until the older daughter (Jane Doe 2) was 16 and reported what her stepfather had been doing to her for many, many years. When defendant was released from prison, he married again and had a third daughter (Jane Doe 1) who eventually became another victim of his sexual deviancy. In December 2013 Jane Doe 1's boyfriend told her mother about the molestations and her mother compelled defendant to leave the family home. Jane Doe 1 and her mother reported the sexual abuse to the authorities in March and April of 2014. A roommate found homemade child pornography discs hidden in defendant's desk in his home office.
Defendant was charged with one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5; Jane Doe 1) and one count of possession or control of child pornography (Pen. Code, § 311.11, subd. (a).) The theory of his defense was that Jane Doe 1 lied to help her mother prosper financially in the divorce proceedings and, it was Jane Doe 1, not he, who had edited the videos to produce the child pornography. He also sought to prove that the three girls had colluded, despite the fact they had not met until after Jane Doe 1 made her accusations. Defendant testified at trial. He was 72 years old. The jury rejected his defense and found him guilty of both counts.
DISCUSSION
I
Evidentiary Rulings
Prior Uncharged Misconduct
During motions in limine, the prosecutor sought to introduce evidence of defendant's prior conviction for sex crimes against Jane Does 2 and 3 pursuant to Evidence Code section 1108. Section 1108, subdivision (a) states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." In enacting section 1108, the Legislature determined "that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature . . . determined the need for this evidence is 'critical' given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 181-182, fn omitted.)
Further undesignated statutory references are to the Evidence Code.
Defendant argues the trial court abused its discretion by allowing Jane Does 2 and 3 to testify because the crimes he committed against them were not similar to the conduct charged in this case, the earlier crimes were too remote in time, and their testimony was unduly prejudicial and too time consuming, particularly where, as here, the documentary evidence was a more time-efficient and less prejudicial alternative. His contentions require us to compare the sexual misconduct committed against each of the little girls.
Jane Doe 2 was defendant's first victim of the three. She is his stepdaughter. She, like her sisters, testified that defendant was very strict. He abused them from when they were so young he normalized his misconduct in their eyes. They did not realize that other girls did not shower with their fathers; a practice defendant began with each of them when they were about four or five years old. Jane Doe 2 would wash defendant's penis and he would wash her vagina. Jane Doe 2 felt more like a wife than a daughter. She was required to fix him meals and wake him up when her mother was working. By third grade, defendant had Jane Doe 2 orally copulate him and he also performed oral sex on her. During third and fourth grades, defendant started grinding against her pelvic bone with her clothes off. He attempted to have intercourse with her. As her breasts developed in about fifth grade, he became fascinated with them. She testified, "[H]e would, like, check them, almost a couple times a week to check them and feel them and rub around them to see how much they were growing." He continued showering with her until she was 16 years old.
Similarly, Jane Doe 3, defendant's biological daughter, started showering with her father for as long as she could remember until she was 10 years old. She washed defendant's genitals many times. When she was in fourth grade, her father licked her whole body. Both Jane Does 2 and 3 testified defendant hypnotized them. They also testified he told them not to tell anyone about their showers.
Defendant admitted to the convictions for oral copulation and other sexual abuse crimes against Jane Does 2 and 3 in 1985.
Jane Doe 1's account bore some key similarities to the testimony of her sisters. Like them, she showered with her father from when she was around four years old. They were naked and Jane Doe 1 explained she bent down with her hands on her knees. Defendant placed his body over hers, facing in the same direction, and she could feel his penis against her buttocks. As with her sisters, defendant washed Jane Doe 1's private parts. He also was interested in the development of her breasts. When she started to learn to sew at the age of 13 or 14, he held clothing on her breasts. She asked him several times to stop. He tried to put his tongue in her mouth when he gave her a kiss around the age of 12, maybe younger. When she was 15 or 16 lying in bed, he put his penis into her half-open hand. Throughout her life, defendant walked around naked in the house. She believed she had been sexually abused by her father while she was asleep, but did not know about it because she is such a heavy sleeper.
Defendant home schooled Jane Doe 1 until she was a teenager. Isolated from other children, she did not realize how abnormal her upbringing had been and how inappropriate her father's behavior was.
Defendant points to the differences in the conduct he engaged in with his two older daughters and the conduct his youngest daughter described. Unlike her sisters, Jane Doe 1 did not accuse him of oral copulation, attempting to penetrate her, grinding his penis against her, or licking her. In his eyes, the mere fact that he showered with her on a few occasions, accidentally brushed her breast while engaged in a sewing project, and inadvertently slipped out his tongue when giving her a kiss, simply does not equate to the type of misconduct he pleaded to in 1985. Most importantly, he insists the dissimilarity in the conduct means the evidence had minimal probative value that was substantially outweighed by the inflammatory and prejudicial nature of these prior uncharged offenses. In short, defendant argues he was convicted based solely, or at least primarily, on crimes for which he has already been punished.
It is indisputable that the admission of uncharged prior sex crimes is prejudicial to a criminal defendant. The question is whether it is unduly prejudicial. In enacting section 1108, the Legislature determined that the introduction of prior sex crimes was not necessarily undue. Indeed, "section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Section 1108 survives constitutional muster precisely because it gives the trial court the opportunity to weigh the prejudicial impact against the probative value of the prior sex crimes evidence and the discretion to exclude the evidence if the probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury.. (Falsetta, at pp. 917-918.)
Defendant directs our attention to People v. Jandres (2014) 226 Cal.App.4th 340 (Jandres) because in Jandres, the Court of Appeal held that the trial court abused its discretion by admitting evidence of prior "sex" offenses, which were too dissimilar to the charged offenses to add sufficient probative value. (Id. at p. 357.) It is an odd choice of authority because the facts bear no resemblance to the facts before us. In Jandres, the defendant maintained that the 18-year-old victim consented to intercourse; the victim alleged defendant had raped her. (Id. at pp. 347, 350.) The trial court admitted evidence of a prior uncharged offense involving the daytime attempted kidnapping of an 11-year-old girl. (Id. at pp. 346-347.) The defendant had gone into the victim's grandmother's house, shoved his index finger into the 11-year-old victim's mouth, before picking her up and carrying her a few feet. (Id. at p. 346.) He was charged with burglary and attempted kidnapping, among other crimes. (Id. at pp. 345-346.) At trial, the prior "sex" crimes were admitted under section 1108 "as evidence of sexual offense" based on " 'touching an 11-year-old, picking that person up and carrying them towards existing [sic] the room clearly has sexual intent to it and, therefore, is a proper basis as 1108 evidence.' " (Jandres, at pp. 346-347.)
Not surprisingly, the Court of Appeal found the crimes too dissimilar to be admissible. The court explained: "Thus, the pertinent inquiry is whether evidence that defendant exhibited sexual interest in an 11-year-old girl by putting his finger in her mouth rationally supports an inference that defendant is predisposed to rape an 18-year-old woman. Given the many differences between the two offenses—including the circumstances (daytime attempted burglary in one case, possible stalking and attack at night in the other); the ages of the victims (11 and 18); and the nature of the conduct (inappropriate touching of the mouth in one case, rape in the other)—we think not." (Jandres, supra, 226 Cal.App.4th at p. 356.)
Here, by contrast, the sexual misconduct was remarkably similar. All three victims were his daughters. He began his inappropriate touching while showering with each of them. The sexual misconduct began, with each little girl, when they were very young and continued, in the privacy of their home, for many years. Although they had different mothers, the mothers worked outside the home and defendant took advantage of his daughters in their mothers' absence. With Jane Does 1 and 2, he showed an interest in their developing breasts. With Jane Does 1 and 3, he took advantage of them when they were asleep or pretending to be asleep. Thus, the pattern of establishing a criminal intimacy with his very young daughters and molesting them over many years rendered the evidence of the prior offenses very probative, whereas the dissimilarity between very different types of victims and very different types of behaviors in Jandres added minimal probative value and unduly prejudiced the jury.
Defendant further contends that the remoteness in time between his sexual misconduct involving his first two daughters further diluted the probative value of the charges that were made against him 30 years later by his youngest daughter. " 'Remoteness' or 'staleness' of prior conduct is an appropriate factor to consider in a section 352 analysis." (People v. Harris (1998) 60 Cal.App.4th 727, 739.) Remoteness, however, can be balanced out by the similarity of the crimes and becomes irrelevant if the defendant has failed to live a blameless life in the interval. (Ibid.)
A poignant example of similarity balancing out remoteness in a section 352 analysis is People v. Branch (2001) 91 Cal.App.4th 274, 284 (Branch), where, as here, the prior offenses and charged offenses occurred 30 years apart. As the court described them, the offenses before and after the 30-year gap, were strikingly similar. "[A]ppellant first molested a 12-year-old stepdaughter, then a 12-year-old step-great-granddaughter. Moreover, appellant took advantage of the fact that each victim was staying in his home when the molestations took place. Further, in an evident attempt to shield himself from being found out, he lied and told each victim's principal female caretaker that the victim had recently done something wrong. In sum, the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses." (Id. at p. 285.)
The same is true here on facts quite similar to those in Branch. Defendant is a multi-generational sex offender. He engaged in egregious and continual sexual misconduct with his two daughters, Jane Does 2 and 3, when he was a much younger man, and he continued to molest a daughter born to him late in life even as he began to suffer from erectile dysfunction. From Jane Doe 1's testimony that he began showering with her when she was around four years old, only a few years after he was released from prison, and for many years thereafter, he clearly had not led a blameless life in the 30 years from admission of his first episode of sexual misconduct against his two victims and his second episode against his youngest daughter. Thus, the repetition of the same pattern within his own family and within his own home with daughters he controlled and partially secluded balances out the remoteness as a factor militating against admission of the evidence. (People v. Waples (2000) 79 Cal.App.4th 1389, 1395.)
Defendant also asserts the evidence required a mini-trial on his conduct toward Jane Does 2 and 3, thereby consuming a disproportionate amount of trial time. The Attorney General observes that the examination and cross-examination of the witnesses took less than 70 pages of reporter's transcript. Given the significance of the propensity evidence, we cannot say the trial court abused its discretion by finding that their live testimony was not disproportionately time-consuming or that it did not divert the jurors' attention from their sole task of deciding whether defendant sexually abused Jane Doe 1. We also agree with the Attorney General's admonition that the trial court minimized the risk of tainting the jury by informing it that defendant had served time for his prior offenses, and therefore, alleviating the risk the jurors would attempt to punish him for his prior offenses.
Finally, defendant claims it was an abuse of discretion to allow such inflammatory live testimony when documentary evidence would have provided the jurors with the fact of the prior sexual offenses without the prejudice the victims would naturally incite. He relies on People v. Wesson (2006) 138 Cal.App.4th 959, a case in which the defendant argued that live testimony was required. In rejecting the defendant's argument, the court found that documentary evidence was admissible in lieu of live testimony. (Id. at pp. 967-968.) The court did not say that documentary evidence was required and there is nothing in the opinion to give preference to documentary evidence or to degrade the value of live testimony.
We thus conclude the trial court properly exercised its discretion to allow evidence of the prior sexual offenses, despite the fact defendant had sexually abused his older daughters 30 years earlier, because the offenses were sufficiently similar and exceedingly probative. We find no abuse of discretion simply because the evidence was prejudicial. "It is important to keep in mind what the concept of 'undue prejudice' means in the context of section 352. ' "Prejudice" as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. . . . " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.]' " (Branch, supra, 91 Cal.App.4th at p. 286.) While the testimony by his older daughters to the many years of sexual abuse was certainly damaging to defendant's case, it was not unduly prejudicial and was properly admitted.
Phone Records
Defendant hoped to attack the credibility of his youngest daughter with evidence of collusion with her older sisters and her mother. To this end, he went on a fishing expedition for evidence of phone calls and text messages between them. The trial court denied his pretrial motion for their phone records. The court explained: "I'm going to find that you have not made an adequate showing of any type of collusion in this matter by these third party persons, witnesses, victims, whatever they may turn out to be. [¶] The Court should not, and as the gatekeeper of evidence, the Court should not allow the jury to engage in speculation as to the contents of these phone calls. Maybe they are talking about where they are going to get together for Thanksgiving, where they are going to get together for Christmas, things of that nature." The court concluded that even if there were spikes in the number of calls at certain times, the spikes would not necessarily support a vague theory of collusion because of the infinite number of innocent reasons for the spikes in communication between family members. The court also acknowledged that the presence of phone numbers alone would not indicate who actually spoke to each other. The court left open the possibility that the evidence would become relevant to the witnesses' credibility if they denied making calls that were belied by the phone records.
At trial, Jane Doe 1 denied speaking to, or texting, her sisters and Jane Does 2 and 3 also denied calling or receiving calls from her. Defense counsel asked the court "if the fruits of your review of those telephone records reflect that, in fact, there were telephone contact between Jane Doe 1 and 2." The court responded that it had reviewed all of the records, including the phone records of Jane Doe 1, and did not find Jane Doe 2's phone number anywhere in the records.
Counsel had a discussion with the court out of the presence of the jury following the testimony of Jane Doe 3. The court remarked again that Jane Doe 1's phone number was not found in "all of these things."
Following Jane Doe 1's mother's testimony, the court reiterated yet again that it had reviewed the records. "And also I reviewed the phone records again, since last Thursday, Friday afternoon, and find still based on all the testimony, no records that meet with the -- there's no phone calls that I can determine between Jane Doe 1 and/or her mother, or the house phone, that was the other one I was looking for. And the other Jane Doe 2 and Jane Doe 3 or any numbers associated with them, no text, no phone calls that I've been able to find from the records."
Having reviewed the phone records sent to us under seal, we conclude the trial court did not abuse its discretion in reaching this conclusion. (People v. Avila, supra, 38 Cal.4th at p. 607.) Nor can we say the trial court abused its discretion by refusing a wholesale disclosure of the third-party telephone records to the defense. Given the privacy concerns of the Jane Doe victims, the marginal relevancy of the records, and the ability to seal the records and allow the court to do the fishing, defendant's ability to present a viable defense was not unfairly hampered.
Defendant makes an emphatic plea for us not to independently review the records. But the thrust of his argument has more to do with the competency of counsel than a cogent reason why we should shun an in camera review. As to the competency of counsel and the sufficiency of the records presented, we will address the issue post. People v. Avila (2006) 38 Cal.4th 491 provides no basis for us to refuse the Attorney General's request to review the phone records.
Pretext Phone Call
Defendant sought to elicit testimony from a police officer, who staged a pretext phone call between defendant and Jane Doe 1, that defendant had not said anything incriminating during the call. The trial court excluded the evidence of the pretext call because it was hearsay and did not qualify as an exception to the hearsay rule of exclusion as a prior consistent statement. Defendant argues that the fact he denied the accusations four months after he was kicked out of the house may reflect that he was being truthful. The trial court's ruling was correct.
Section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791."
Section 791 states: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] . . . [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Defense counsel argued there was an implied charge defendant's testimony was fabricated and "the bias is he doesn't want to be convicted." The flaw in defendant's argument at trial, and reiterated on appeal, is that his motive to fabricate existed at the time of the pretext call, and therefore, defendant does not satisfy the requirements set forth in section 791, subdivision (b).
Jane Doe 1's mother kicked defendant out of the family home upon learning that he had sexually abused their daughter. That was in December of 2013. Defendant testified he left the house because his wife threatened to turn him in as a sexual offender. As noted above, he was a registered sex offender with continuing obligations to report. Mother and daughter reported the abuse to the police the following March. Thus, by the time the police arranged for the pretext call in April, defendant was well aware of the potential he would be tried, convicted, and returned to prison. He certainly then had a motive to fabricate during the pretext call to avoid arrest. Accordingly, the pretext phone call was not admissible as a prior consistent statement and the trial court did not abuse its discretion by excluding it.
Military Records
Defendant sought to introduce evidence that he served in the military in Vietnam and received commendations for his service. His service was in the 1960's. The trial court found the alleged good character evidence including his conduct in 1966 preceded the charged conduct in 1997 by 30 years. The court denied the motion.
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Here the evidence was not relevant for two reasons. Whether defendant performed admirably on the battlefield or not has no probative value as to whether he would molest his children. There is simply no reasonable inference to be drawn that he would not engage in sexual misconduct from the fact he served his country. Secondly, the military service predated the sexual abuse of his older two daughters, crimes he admitted and served time for in prison. Thus, whatever good qualities defendant demonstrated in the military did not prevent him from molesting Jane Does 2 and 3 and they have no probative value whether he continued the same pattern in sexually abusing Jane Doe 1.
Even if we were to find some minimal probative value, the court was entitled to exclude the evidence under section 352 if it concluded the low probative value was substantially outweighed by the possibility of confusing or misleading the jury. The court did not abuse its discretion by excluding evidence with such a high probability of confusing the jurors. A reasonable juror, grasping for a reason the stale evidence was admitted, might draw any number of impermissible inferences, misled by the mere admission of the evidence.
In People v. Callahan (1999) 74 Cal.App.4th 356 (Callahan), cited by defendant, the court concluded that "when the prosecution introduces evidence under section 1108 of the defendant's commission of another sexual offense or offenses, the defendant is not precluded from introducing evidence of specific instances of his good behavior under similar circumstances." (Callahan, at p. 360.) In Callahan, the defendant sought to inquire of his 11- and 18-year-old nieces whether, under circumstances similar to the charged misconduct, he had inappropriately touched them. (Id. at pp. 372-373.) He sought, through their testimony, to demonstrate he did not have the character of a child molester. (Id. at p. 379.)
Defendant's military records of his conduct in the service bear no similarity to the testimony of the nieces in Callahan. Defendant sought to introduce generalized good character evidence; that is, the fact he served admirably in the military rendered it unlikely he would behave criminally at home. Callahan insists that questions about specific incidents of good conduct occurring under circumstances similar to the charged conduct were admissible; it did not suggest that character evidence of any nature should be admitted. (Callahan, supra, 74 Cal.App.4th at p. 379.) Callahan, therefore, provides no authority for the much broader proposition that a registered child molester must be allowed to introduce any evidence of good character, including evidence that is old and stale and has no logical tendency to prove that he did or did not engage in the charged sexual misconduct.
Testimony on Video-editing Skills
Defendant contends it was an abuse of discretion to disallow testimony by the board president of a local public access channel who testified in a section 402 evidentiary hearing that, as far as he knew, Jane Doe 1 had not done any editing for the channel and, although he had seen videos she had posted on YouTube, he did not know if she had edited them. Defendant had hoped to persuade the jury that his daughter, not he, edited the videos found in his desk containing graphic and disturbing scenes of child pornography. "[A] trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) We certainly cannot say the trial court acted arbitrarily, capriciously, or in a patently absurd manner by excluding the testimony of a witness who admitted he had no personal knowledge about Jane Doe 1's video-editing skills.
Presence of a Victim Support Person
Defendant objected at trial to the presence of a support person sitting next to Jane Doe 1 while she testified. He argued that Jane Doe 1 was an adult and the presence of a support person made her appear fragile and would unfairly bias the jury against him. He shortchanges the statutory justification for the trial court's ruling granting Jane Doe 1's request.
Penal Code section 868.5, subdivision (a) states that a prosecuting witness in a case involving a violation of Penal Code section 288.5 shall be entitled, for support, to the attendance of up to two persons during the witness's testimony; one of the support persons may accompany the witness to the witness stand.
The California Supreme Court rejected a similar challenge to the presence of a support person in People v. Myles (2012) 53 Cal.4th 1181 (Myles). The court wrote: "Defendant insists that he was prejudiced by the support person's presence on the witness stand while Donna testified because it created a false and distorted view of Donna's demeanor and tacitly vouched for the truth of her testimony. We are not persuaded. [Penal Code s]ection 868.5 permits prosecution witnesses in cases involving murder and other enumerated offenses to be attended in court by two support persons, one of whom may accompany the witness to the stand. Absent improper interference by the support person, however, no decision supports the proposition that defendant advances here, that the support person's mere presence infringes his due process and confrontation clause rights. . . . [Citations.] Here, the record does not disclose any circumstances indicating that Donna's support person improperly influenced the jury's assessment of her testimony. (See People v. Patten[ (1992) 9 Cal.App.4th 1718,] 1731-1732.) For instance, there is no description as to where the support person sat in proximity to Donna and whether she had physical contact with Donna during her testimony. Nor is there any indication that the support person displayed emotion or gestures suggesting to the jury that she believed Donna's account of the incident. (Patten, supra, at pp. 1732-1733.) Notably, the court informed the jurors that Donna was entitled by law to be attended by a support person during her testimony, and admonished them that the support person was 'not the witness.' This admonition, coupled with the court's instruction directing the jury to base its decision in the case solely on the evidence received at trial and not to be swayed by sympathy or prejudice, further undermines any suggestion of improper interference by the support person. (People v. Ybarra[ (2008) 166 Cal.App.4th 1062,] 1078.) Defendant fails to show that he was prejudiced by the presence of a support person during Donna's testimony." (Myles, at pp. 1214-1215.)
Here too there is no evidence that the support person disturbed the proceedings in any way, vouched for Jane Doe 1's credibility, or had physical contact with her. According to the terms of Penal Code section 868.5, she merely provided the emotional support the victim needed to withstand the trauma of testifying to the way in which her very own father had sexually abused her. Moreover, the trial court admonished the jurors, as in Myles, to base its decision solely on the evidence (CALCRIM No. 200) and informed them of the victim's statutory right to have a support person present. On this record, the court properly allowed the support person and defendant has failed to demonstrate that he suffered any prejudice as a result.
In reply, defendant acknowledges that Penal Code section 868.5 permits a support person, but he insists that the cumulative effect of all the erroneous evidentiary rulings deprived him of a fair trial and that, in this toxic trial, the support person just added to his inability to mount a credible defense. Since we have not found any evidentiary errors, we disagree that defendant was denied a fair trial and, since the support person was permitted by statute and did nothing to abuse the privilege, we disagree with his claim that she compromised the defense.
II
Competency of Counsel
Defendant has a right to the effective assistance of his lawyer under the federal and state Constitutions. But he bears the burden of proving his lawyer provided subpar representation and, there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. (Strickland v. Washington (1984) 466 U.S. 668, 695 ; People v. Ledesma (1987) 43 Cal.3d 171, 215-217.) In other words, in the absence of prejudice, there is no ineffective assistance of counsel. (People v. Weaver (2001) 26 Cal.4th 876, 925.)
We are extraordinarily sensitive to a defendant's constitutional right to present a defense, even weak and flimsy defenses, and we acknowledge the exercise of that right is dependent upon the competency of the lawyer who asserts it on a defendant's behalf. The sanctity of the right to present a defense, however, does not mean we must reverse a jury verdict based on the inadequacy of the legal representation when there is no reasonable probability that an inherently farfetched defense would have created a reasonable doubt about the defendant's guilt. A defendant faces a much more daunting task to establish that his lawyer provided constitutionally insufficient representation when the defense he asserts is highly improbable.
Failure to Hire Experts
Defendant asserts he might have achieved a more favorable outcome if only his lawyer had hired mental health and forensic experts to discredit his daughter's testimony based on a mental health crisis she suffered, to expose her susceptibility to manipulation, and to prove that she was the video editor who produced the disgusting videos of child pornography. The dispositive question is not whether he had the right to offer expert testimony to support his defenses but whether, if the experts had been allowed, there is a reasonable probability he would have received a more favorable outcome.
Before trial, defense counsel explained he had consulted two mental health professionals. One responded he did not have enough information to determine whether Jane Doe 1 was credible; the other provided the lawyer a quote for his services. He did not hire either one, but he did subpoena the records from the hospital where she was treated after the police responded to her call for help.
Despite the absence of a mental health or forensic expert, however, defendant did pursue his defenses through cross-examination of the victim. Jane Doe 1 admitted that deputies saw cuts on her arms and left a message stating she did not want to live any longer. She attributed her mental health decline to the lifetime of sexual improprieties she had suffered at the hands of her father and, emotionally despondent, concluded she was an evil person. But she insisted she was too much of a coward to commit suicide. The trial court limited defense counsel's exploration of the victim's characterization of herself as "evil" because she used that term only in the midst of a mental health crisis.
Thus, the jury was aware of Jane Doe 1's emotional difficulties. They were well-equipped to decide whether defendant had sexually abused her as charged and thereby caused her feelings of despair or whether, as defendant alleges, she attempted suicide because she had fabricated the charges against him at her mother's urging. We agree with the Attorney General that it is not reasonably probable that a mental health expert would have made a difference in the outcome of the trial. The defendant had the opportunity, via cross-examination, to assert his defense and defendant does not explain how an expert might have qualitatively changed the jurors' assessment. On this record, we cannot say the defendant was prejudiced by his lawyer's failure to hire an expert who might have testified that Jane Doe 1's testimony should be viewed with caution due to her fragile emotional state or that she attempted suicide and considered herself evil, testimony that was not very different from saying what Jane Doe 1 had already said herself—that she was feeling desperate as a result of the abuse she had suffered.
Similarly, defendant complains that his lawyer did not hire a forensic expert to examine the computers for evidence as to when and where the child pornography videos were edited and to examine the phone records. The record reveals the phone records are a nonissue. We have independently examined the records presented and there are no calls between the parties to support defendant's theory of collusion. As a result, a forensic expert would have added nothing more than the trial court already provided—a review of the records to determine whether there had been a spike in communications between the victims lending some credibility to an inference of collusion. We conclude defendant suffered no prejudice based on his lawyer's strategic decision to save defense resources and forego a forensic examination of the phone records.
Defendant's hypothetical forensic expert who, in the best case, would have ascertained on which computer the pornography was edited and when, is based on sheer speculation. Even under defendant's most imaginative scenario wherein the hypothetical expert ascertains which computer was used to edit the material at what time, there would be nothing in the scenario to attribute the editing to Jane Doe 1.
During cross-examination, Jane Doe 1 conceded that she had watched her father edit video in his home office. She evidenced a familiarity with the skills that would be required. Moreover, she testified she shot a film and edited it for a public access station. She has acted in over a hundred films. As in the case of mental health experts, Jane Doe 1 herself offered sufficient evidence for the defendant to argue, and the jury to conclude, that she had the requisite skills to edit the child pornography. Defendant, through cross-examination, had the opportunity to present his defense that it was his daughter, not he, who put together the disturbing images of children involved in sex.
Defendant's argument required the jury to swallow the unlikely proposition that his daughter, who would have been under 20 years old at the time, was engaged in the unseemly business of child pornography in the total absence of any evidence whatsoever that she had a perverse interest in children or any other motive to be involved in the editing or production of child pornography. A more likely source of the edited video was, of course, defendant himself, a registered child molester with a history of sexually molesting his own children. In this context, we simply cannot conclude that it is reasonably probable that any testimony offered by any forensic expert on computers would have persuaded the jurors to reach a more favorable outcome for the defendant. In the absence of prejudice, once again, there is no incompetency claim.
Convinced that it would have taken a lineup of experts to produce a reasonable doubt he was guilty as charged, defendant also asserts he needed a medical expert to explain to the jury he suffered from erectile dysfunction. He believes his condition was essential information the jurors should have considered in determining whether he had continually abused Jane Doe 1 in the absence of an ability to sustain an erection.
The issue was thoroughly examined at trial. His lawyer informed the court that defendant wanted to describe his medical condition to the jury to allow his lawyer to argue that because defendant no longer had a sex drive, he probably did not engage in the sexual misconduct against Jane Doe 1. The trial court ruled that defendant could not testify to a medical diagnosis but he could testify that he could not get an erection. The court pointed out that the charged crimes did not require sexual penetration.
Defense counsel later expressed some degree of regret about not hiring a doctor to testify to defendant's lack of libido. Nevertheless, defendant testified he could not get an erection, a problem that he had for about 16 years, nor could he ejaculate. He explained that within six to eight weeks his "ejaculation was zero." The medication he takes keeps him awake, but nothing fixes his erection and ejaculation problem.
So ultimately we reach the same conclusion we reached about the other three experts defendant wishes his lawyer had hired. Testimony from a doctor describing erectile dysfunction and the loss of libido would have added little to what the jurors learned from defendant himself. We see no reasonable probability that expert testimony on erections would have changed the outcome particularly because an erection is not an element of the charged offense.
Moreover, we must view the expert testimony defendant believes would have changed the outcome of the trial in the context of all of the evidence the prosecution introduced to prove defendant committed the charged offenses. In a nutshell, the evidence was overwhelming. Jane Doe 1 testified to the same pattern of sexual abuse her two older sisters described. Defendant preyed on his very young daughters beginning by showering with them and having them wash his genitals when they were only four or five years old. Defendant served seven years in prison for the escalating abuse he inflicted on Jane Doe 2 and Jane Doe 3, but once he was released, he remarried, had another daughter, and when she too reached four or five, like her sisters before her, he began showering with Jane Doe 1 as well. We need not repeat all the additional similarities between the methodology he used to abuse Jane Doe 1, like he had used to abuse Jane Doe 2 and Jane Doe 3 we chronicled above. Suffice it to say, while his appetite may have diminished as he aged and he no longer could get an erection, his attraction to young girls continued, and he repeated the pattern all over again.
Because defendant chose to testify, the case became a credibility contest which, by any objective measure defendant lost. Jane Doe 1 did not embellish her accusations. She admitted defendant never required her to orally copulate him, never penetrated her vagina with his penis, and never intentionally exposed her to pornography. Defense counsel tried his best to impeach her with questions about her loyalty to her mother; the omissions in the statement she initially gave to the police; the details she had provided about her father coming into her bedroom naked when she was 16 and, while she was pretending to be asleep, putting his penis into her hand; a suicide attempt; and meetings with other family members. While his cross-examination gave him sufficient evidence to support defense theories, none of her responses seriously damaged her credibility.
Much of the defendant's testimony, on the other hand, was effectively impeached. Although he had pleaded guilty to sex crimes against his older daughters, at this trial he tried to minimize what he had done and shift considerable blame to their mother. He insisted that it was she who had encouraged her daughters to shower with him. His testimony was extremely implausible. For example, he testified that when Jane Doe 2 was 16 years old, she "bounced" into the shower with defendant with a happy grin on her face and said her mother had told her she could shower with defendant. He also testified that her mother shoved her into bed and showers with defendant. He insisted the first time he was ever attracted to her was when she was 16, despite the years of sexual abuse that preceded her 16th birthday. And, despite his former plea and Jane Doe 2's testimony to the contrary, he then denied showering with her beginning when she was five years old. And, despite his former plea and Jane Doe 3's testimony to the contrary, he professed his love for her and denied ever doing anything to her, but he supposed he touched her. He denied using hypnosis on his children, but when pressed further during cross-examination, he remembered doing it a few times to entertain them. He told the jury he had a wonderful marriage to Jane Does 2 and 3's mother until she "suddenly turned herself off" to him and two months later put her daughter in the shower with him. But, he repeated, up until then it was a fantastic marriage. In sum, the prosecutor's cross-examination of defendant damaged his credibility enormously.
Defendant continued to blame his ex-wives for his three daughters' accusations of sexual misconduct. Defendant accused Jane Doe 1's mother of manipulating Jane Doe 1 to fabricate the charges against him purportedly to enable her to prosper financially from the divorce. While it is true that she told the police officer in the initial interview about the sexual misconduct that she feared losing everything, a divorce was not pending at the time. In fact, it was defendant who filed for divorce and that was not until May of 2014. Thus defendant was relying on the jury to disbelieve Jane Doe 1's testimony based on the unlikely hypothesis that she would report a lifetime of sexual indiscretions by her father and testify in a public trial about the most intimate details of her life to provide her mother with a financial advantage in a divorce that had not even been filed.
Jane Doe 1, however, seemed to believe that the divorce proceeding was started in January of 2014. She testified that her mother was worried about the divorce all the time and it was upsetting her. --------
We conclude that given the volume and strength of the evidence against defendant, it is not reasonably probable that the tangential testimony the experts might have given would have convinced the jury that defendant was not guilty beyond a reasonable doubt. He suffered no prejudice, and therefore, he has not proven his ineffective assistance of counsel claim.
Failure to Vigorously Examine and Cross-examine Witnesses
Defendant also asserts his lawyer did not adequately cross-examine Jane Does 1, 2, and 3 and examine his ex-wife. Specifically, he criticizes his lawyer for failing to ask Jane Doe 1 whether her mother had told her about his prior convictions and for failing to ask his ex-wife if she had told Jane Doe 1 about his past or whether she had demanded money from him. Anticipating such a claim, his lawyer explained on the record that he limited his cross-examination of all three of defendant's victims so as not to alienate or inflame the jury. He realized that each of them had been victimized and, as part of his trial strategy, he determined that the risk of alienating the jury was not worth the potential information he might have obtained from the victims.
We reject defendant's attack on his lawyer's strategic decision to forego a more vigorous examination. And, having read his cross-examination of Jane Doe 1 and his direct examination of her mother, we conclude the lawyer was well prepared and purposefully asked questions to enhance the defense. For example, his lawyer asked Jane Doe 1 penetrating questions about her mental health crisis, her film-editing experience, her acting experience, and her communications with her sisters. He asked her mother about her fear of losing money or property in the divorce, why it took so long to report the crimes to the police, and about any communications she had with Jane Does 2 and 3. The failure to ask a specific question does not render the representation deficient. On this record, the lawyer's trial performance did not compromise defendant's right to a fair trial.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. MURRAY, J.