P. v. Alexander

Filed 7/12/07 P. v. Alexander CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Paul Lawrence Alexander guilty of two counts of aggravated sexual assault of a child (rape by force in violation of Penal Code section 269, subdivision (a)(1); undesignated section references are to the Penal Code), and oral copulation by force in violation of section 269, subdivision (a)(4), and three counts of lewd acts on a child under the age of 14 in violation of section 288, subdivision (a). The court denied defendants motion for new trial and sentenced him to an aggregate term of six years consecutive to 30 years to life in state prison.

On appeal, defendant contends (1) he was denied his right to testify on his own behalf and (2) he was denied due process by virtue of the ineffective assistance of his counsel. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

P.B. moved from Mexico to the United States in 1997 and met the defendant while working for the California Conservation Corps in 1997 or 1998. The two began a dating relationship and soon moved in together.

In January 1999, P.B.s daughter, P. S.B., born in August, 1991, came to the United States to live with her mother.^[1] She moved in with Big P. and defendant in the Greenback Terrace Apartments in Citrus Heights (also referred to as the Birdcage apartment). Big P. was approximately four months pregnant with defendants child at that time.

Between January 1999 and March 2002, Big P. worked varying schedules for different employers and, in 2001, also attended school to obtain her CNA license.^[2] When Little P. was not in school or at daycare, she was under the care of defendant.

In mid-July 2000, Big P., defendant and the two children moved into a house on Glenn Avenue. Little P. was enrolled in the fourth grade.

In mid-March 2002, Little P. reported to school officials that she had been molested by defendant. Citrus Heights Police Officer John Linke interviewed Little P. Little P. told Linke that she was six years old when the first incident occurred at the Birdcage Apartment.^[3] She was sleeping in her mothers bedroom when the defendant came in, lay on the bed next to her and put his hands on her chest under her clothes. He then pulled her pants off and placed his hand on her vagina. He first put his finger inside her vagina, then slid down and placed his mouth on her vagina. He eventually climbed on top of her and partially inserted his penis inside of her vagina. Little P. told Linke that she pretended to be asleep, but said, Ouch when he penetrated her, causing the defendant to jump up and stand by the bed, where Little P. observed him with his pants down and his penis erect. According to Little P., Big P. was not home at the time of the incident.

Little P. also told Linke about four subsequent incidents during which defendant touched her vaginal area. She told Linke that she did not tell her mother about any of the incidents because she was afraid.

Little P. later testified at trial that another incident occurred at the Birdcage apartment, when defendant pushed her down to her knees, pulled down his pants and underwear, grabbed her head and pushed it towards his erect penis, forcing her to put it inside her mouth.

Defendant was arrested and charged by amended information with aggravated sexual assault of a child (rape - Count One), aggravated sexual assault of a child (oral copulation - Count Three), and 10 counts of lewd and lascivious acts on a child (Counts Two, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven and Twelve), all counts being serious felonies within the meaning of section 1192.7, subdivision (c). Defendant entered a plea of not guilty to all counts.

Following a jury trial, defendant was found guilty of Counts One, Three, Five, Six and Seven. The jury found him not guilty of the remaining counts. Defendant moved for a new trial, arguing ineffective assistance of counsel by virtue of his attorneys failure to allow him to testify at trial, as well as other alleged failures in representation during the course of the trial. The court denied defendants motion and sentenced him to an indeterminate term of 15 years to life as to Count One, a consecutive 15-year-to-life term as to Count Three, a consecutive six-year term as to Count Five, and concurrent six-year terms as to Counts Six and Seven each, for an aggregate term of six years consecutive to 30 years to life in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Denial of Defendants Right to Testify

Defendant first contends he was denied due process when he was not afford[ed] the opportunity to assert his right to testify on his own behalf at trial. Specifically, he urges he was never advised of his right to testify. We disagree.

[T]he decision to place a defendant on the stand is ordinarily within the competence and purview of trial counsel, but . . . a defendant who insists on testifying may not be deprived of doing so even though counsel objects. (People v. Hayes (1991) 229 Cal.App.3d 1226, 1231 (Hayes), citing People v. Robles (1970) 2 Cal.3d 205, 214-215.) While the defendant has the right to testify over his attorneys objection, such right is subject to one significant condition: The defendant must timely and adequately assert his right to testify. (Hayes, supra, citing People v. Guillen (1974) 37 Cal.App.3d 976, 984.) In the absence of such an assertion, a trial judge may safely assume that a defendant who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsels trial strategy. (Hayes, supra, at pp. 1231-1232, quoting People v. Mosqueda (1970) 5 Cal.App.3d 540, 545.) A defendant who fails to make such a demand will not be permitted to await the outcome of the trial and then seek reversal based on his claim that despite expressing to his counsel his desire to testify, he was deprived of that opportunity. (Hayes, supra, citing People v. Guillen, supra, 37 Cal.App.3d at p. 985.)

Defendant told his attorney that he wanted to take the stand to get his side of the story out and tell the jury, it didnt happen. However, defendant never mentioned his desire to the court, despite his apparent ability to respond to inquiries from the court throughout the proceedings. It was incumbent upon defendant to demand that he be allowed to testify in spite of contrary advice from his attorney, or at least request that new counsel be appointed or that he be permitted to represent himself. In the absence of either, or even a general objection to the strategy employed by his trial counsel, the court was unaware that defendant wished to testify on his own behalf.

Defendant argues his attorney had a duty to inform the court of his desire to testify. He further argues that, given his lack of experience with the judicial system and the absence of any prior criminal record, he cannot be held to understand the requirement that he assert his right to testify to the court. However, defendant cites no authority, nor have we found any, to support either contention. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Hardy (1992) 2 Cal.4th 86, 150 (Hardy) [same].) We therefore reject those claims.

In any event, notwithstanding repeated advice from his attorney against testifying, there is no evidence in the record that counsel prevented him from making his wish to testify known to the court. That fact, coupled with defendants failure to timely or adequately assert his right to testify, dictates against disturbing the ruling of the trial court.

II

Ineffective Assistance of Counsel

Ineffective assistance of counsel requires a showing by defendant that (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].)

In order to show trial counsels performance was deficient, defendant must show that counsel failed to act in a manner to be expected of [a] reasonably competent attorney[] acting as [a] diligent advocate[]. (People v. Pope (1979) 23 Cal.3d 412, 425.) If the record fails to show why counsel acted or failed to act as he did, the contention fails unless counsel failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Pope, supra, 23 Cal. 3d at p. 425.) We accord great deference to counsels reasonable tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925 (Weaver); see also People v. Freeman (1994) 8 Cal.4th 450, 484.) Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] (Weaver, supra, 26 Cal. 4th at p. 926.)

Defendant contends he was denied effective assistance of counsel based on his attorneys failure to (1) secure defendants right to testify, (2) recall Big P. for impeachment, and (3) adequately cross-examine witnesses and elicit exculpatory evidence. We shall address each of these contentions in order, finding each of them to be without merit.

A. Failure to Secure Defendants Right to Testify

Defendant argues his counsel failed in two respects: he inadequately advised defendant regarding whether to plead guilty or not guilty to the charged offense, and he took defendants choice whether to testify on his own behalf away from [defendant]. Defendant gives no facts and cites no authority as to the first claim, and we therefore reject it. (People v. Freeman, supra, 8 Cal.4th at p. 482, fn. 2; Hardy, supra, 2 Cal.4th at p. 150.) As for the second claim, defendant simply reiterates the arguments made in support of the due process claim we rejected in Part I of this opinion, adding that counsel actively prevented [defendant] from asserting [his] basic constitutional right [to testify]. As previously noted in Part I of this decision, it was defendants duty to assert his right to testify; he did not. There is nothing in the record to demonstrate that he was prevented from doing so by counsel, nor does defendant point us to any compelling facts in that regard.

We note, however, that what defendant refers to as an unreasoned tactical decision on the part of his attorney not to have him testify appears to us instead to be a well-reasoned strategy to protect defendant from the very real risk of significant damage to his credibility if he were cross-examined regarding evidence that he had surreptitiously taken video of his own family members in the shower. We also note that there is no evidence in the record, and particularly in the declaration filed by defendant in support of the motion for new trial, as to what he would have testified to had he taken the stand at trial other than it didnt happen. Given the likelihood of impeachment on cross-examination, we do not find that proposed testimony to be compelling.

B.Failure to Recall Big P. for Impeachment Purposes

During the course of the trial, a juror notified the court of her concern that Big P., who was permitted to remain in the courtroom (over defense counsels objection) during Little P.s testimony, might be coaching her daughter.^[4] After eliciting the jurors observations, the trial court and counsel had a lengthy discussion to determine how to appropriately handle the situation. During those discussions, the court indicated that it had observed Big P. make a sound of disgust or some expression of displeasure during testimony about a vibrator, but after motioning to her to be quiet (i.e., by putting my finger to my mouth like, shhh, the sh sound), the court had not observed anything, including any coaching of Little P., from that point forward. During those discussions, the court, as well as counsel for both the defendant and the People, expressed concern regarding the ability of the juror to remain impartial. Among other things, counsel considered (1) whether the juror should be excused, (2) whether other jurors made the same observations, (3) whether to recall Big P. or Little P., or both, to inquire about the jurors observations, (4) whether the juror would need to be called to the stand in the event either witness denied coaching, possibly leading to a mistrial and (5) whether the remaining jurors should be questioned as to their observations. Pursuant to the agreement of counsel and the court, each juror was brought in individually and asked if they observed any conduct in the courtroom during Little P.s testimony that caused them concern. They were unanimous in their denial of having observed anything noteworthy.

After the complaining juror was questioned further, the prosecution expressed doubt as to her ability to remain fair and impartial. Nonetheless, the court denied a request to discharge her for cause. When asked whether the complaining juror should be instructed to disregard her observations, defense counsel rejected that proposition, noting that those observations go[] to the victim of this case on cross-examination. No instruction was given, and trial continued with defense counsel electing not to recall either Big P. or Little P. for further questioning regarding the alleged coaching.

Defendant contends his counsel was ineffective in failing to recall Big P. We disagree. Although the record is silent as to why counsel elected to proceed as he did, and there was no request that he provide an explanation for his actions, there is at least one clear satisfactory explanation for electing to proceed as defense counsel did: whether or not the allegation of coaching was true, chances are the complaining juror had some question as to the credibility of the testimony from both Big P. and Little P., a possibility that played clearly in defendants favor. As the People aptly note, defendant only needed one juror to have a reasonable doubt as to [defendants] guilt, and it is possible defense counsel felt he had a better advantage by letting whatever doubt might exist work as it would. It is also possible that defense counsel recognized that if Big P. were recalled to answer to the charge and denied coaching her daughter, that might require that he call the complaining juror to the stand to rebut the denial, possibly resulting in a mistrial a result that would not necessarily guarantee a better result for the defendant. In either case, a satisfactory explanation exists for the strategy employed by defense counsel, and we reject defendants claim of ineffective assistance of counsel.

C. Failure to Adequately Cross-Examine Witnesses and Elicit Exculpatory Evidence

1. Failure to cross-examine Big P.

First, defendant argues Big P. should have been cross-examined on her inability to recall prior statements to defense investigator Loc Ngo regarding the claim that defendant and Little P. were never left alone together. Certainly, had counsel done so, he would have risked clarification by Big P. tending to show periods of time that could not be accounted for, thus weakening defendants case.

Second, defendant contends Big P. should have been cross-examined on prior statements to Ngo regarding periods of time the alleged crimes could not have occurred because Little P. was still in Mexico or because Big P. was home on maternity leave or working day shifts only (contradicting Little P.s testimony that some of the assaults occurred at night). Given that Little P. estimated her age at the time of the offense, and the fact that Linke then calculated the date of the offense from Little P.s estimate, we do not find it appropriate to second-guess defense counsels decision not to highlight an explainable discrepancy. Similarly, the record demonstrates that counsel spent a good deal of time cross-examining Big P. regarding her daily schedule over the course of several years and identifying the specific dates and times she was home versus work or school. Indeed, the testimony given by Big P. speaks for itself, demonstrating inconsistencies in defendants version of the facts that he was never alone with the victim. Any additional focus by defense counsel might well have highlighted that fact. We will not second-guess counsel in that regard either.

Third, defendant contends counsel never elicited testimony regarding Big P.s prior statements to Ngo that Little P. had a habit of lying. The report prepared by Ngo reflects discrepancies in Little P.s statements to police regarding the dates she was molested. As discussed above, the discrepancies are explainable as estimations of past events from a 10-year-old child. Ngos report also contains statements by Big P. that Little P. lies to me all the time and lies constantly, and cites the following incidents as examples: (1) Little P. told her mother she had been locked out of her foster home; (2) Little P. stole $5 from her foster mother but said one of the other children had eaten the money; (3) Little P. told a lie when she said I knew what was going on. [Little] P. never told me about [defendant] touching her and (4) Little P. lied about sneaking out of her room at night. Given that defense counsel was in the best position to assess both the credibility of Big P. on the stand and the reaction of the jurors to her testimony, it is possible he determined an in-depth examination regarding what appears to be a somewhat troubled, yet not uncommon, parent-adolescent relationship would neither be relevant nor helpful to defendants overall case. We defer to counsels reasonable tactical decisions in that regard. (Weaver, supra, 26 Cal.4th at p. 925.)

Fourth, defendant contends counsel should have elicited testimony to clear up any ambiguities regarding the time periods of Big P.s employment and the date she purchased the Glenn Avenue house and further failed to obtain employment or school records in that regard. It bears repeating that a significant amount of time was spent by defense counsel and the prosecution questioning Big P. about dates and schedules related to where she lived and where and when she was employed. We cannot say that records of employment would have provided better evidence of those details than the testimony elicited from the witness herself.

Fifth, defendant faults counsel for failing to cross-examine Big P. regarding an incident in which Little P. took Big P.s vibrator and was found masturbating, arguing that such evidence would tend to prove any injuries to Little P.s genital area could have been self-inflicted. Without citing to the record, defendant argues Big P. conceded that any reported injuries of Little [P.]s genitals all could have been self-inflicted. A review of Ngos report belies that statement. Without mentioning the vibrator, Big P. reported that she came home early and caught Little P. in bed under the blankets with her pants down around her ankles. From that, Big P. inferred

the child was masturbating. Whether or not she was, there was no connection between that incident and the stolen vibrator. Furthermore, according to testimony from expert Cathy Boyle, the photographs of Little P.s vaginal area confirmed that her condition was consistent with penetration by either a finger or a penis, but not by masturbation or use of a five-inch long, one and one-half inch wide vibrator. Given that Big P. would not have been qualified as an expert to testify as to the physical impact to Little P. had she used a vibrator, we cannot fault defendants attorney for omitting that subject matter during his examination of Big P.

2. Failure to cross-examine Little P.

Defendant contends that counsel failed to effectively cross-examine Little P. to elicit evidence to show she had made prior inconsistent statements. In eliciting testimony from an adolescent victim during trial, a delicate balance must be drawn between gentle prodding and aggressive fact-finding. While finding that line may be difficult, crossing it exposes defense counsel to the possibility that the jury might attribute his/her tactics negatively to the defendant himself. Without repeating our earlier discussion regarding the explainable inconsistencies in Little P.s testimony, it is not difficult to imagine that defense counsel assessed his witness and her impact on the jury and determined defendants case would not benefit from further prodding. Looking at nothing but a paper record in our review

of the trial proceedings, we do not second-guess counsels strategy in that regard.

3. Failure to examine defense investigator Loc Ngo

Finally, defendant contends that counsel failed to call Ngo as a witness to elicit testimony regarding Little P.s prior inconsistent statements and to rebut testimony of both Big P. and Little P. No doubt, Ngo could have been called to testify regarding the statements he obtained from both witnesses. Without an explanation from counsel regarding his decision not to do that, we can infer that one in his position might reasonably have concluded that, because the inconsistencies in Little P.s testimony dealt mainly with her ability to recall certain details of the offense (specifically, the details of the oral copulation) between the time she gave the statement and trial, and because the inconsistencies in Big P.s statements (regarding the specific places and periods of time her daughter could have been alone with the defendant) were sufficiently covered in direct and cross-examination of Big P., further inquiry and attempt to clarify those details through an investigator would perhaps lead to confusion rather than clarification of defendants case.

After an exhaustive discussion on the particulars of defendants representation at trial, we conclude that he did not suffer ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

MORRISON , J.

BUTZ , J.

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^[1] To avoid confusion, P.B. is referred to as Big P., and her daughter, P. S.B., is referred to as Little P. This nomenclature was used in the trial court; we intend no disrespect.

^[2] Big P. did not work from May to mid-September 1999, when she took time off for maternity leave. Her son was born in July 1999. She was also unemployed for approximately two months in late-Spring of 2000.

^[3] Little P. was 10 years old when she reported the incident in March 2002, which would have made her seven years old when the incident occurred.

^[4] The juror was questioned outside the presence of the jury, and stated as follows: When little [P.] was testifying, I just had occasion to look out into the audience; and I looked at the time, being of my background, you know, as an investigator, and it was at 10 minutes to 10:00. And between ten minutes to 10:00 and 10:00, I was periodically looking out into the audience; and Big [P.], I observed her shaking her head either in the affirmative or in the negative when questions were asked. Specifically, the question that was asked about the French-fry incident, she had to describe whether she remembered or she didnt remember something; and as she paused, Little [P.] paused, she looked out. I dont know if she was looking at her mother, and I could see the mother doing this, shaking her head ever so slightly in the negative. [] Now, sometimes, I realize that people do this subconsciously when they are thinking to themselves, but then I looked out periodically again. There was a pause by Little [P.] and the mother was doing this or she was playing nervously, as she does, with her hair and her face, to indicate to me that it was in the positive.