P. v. Hawk

Filed 10/25/06 P. v. Hawk CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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Ambrose Recce Hawk, also known as Alan Richard Hawkins, appeals from the judgment entered upon his convictions by jury of four counts of committing lewd acts on a 14 or 15-year-old child by a person more than 10 years older (Pen. Code, § 288, subd. (c)(1))[1] and two counts of oral copulation of a person under the age of 16 (§ 288a, subd. (b)(2)). The trial court sentenced appellant consecutively on each of the counts to an aggregate state prison term of five years four months. Appellant contends that (1) the trial court erred in failing to grant his motion for a new trial based upon ineffective assistance of counsel and newly discovered evidence, (2) his convictions must be reversed due to ineffective assistance of counsel, and (3) the matter must be remanded for resentencing because imposition of consecutive sentences violated his rights to a determination by a jury beyond a reasonable doubt of facts necessary to increase a defendant’s sentence beyond the statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

We affirm.

FACTUAL BACKGROUND

The prosecution’s evidence

Jessica R. was born in 1988. When the alleged wrongdoing occurred, she resided in Palmdale with her adoptive mother, Peggy R. Appellant, born November 20, 1963, lived across the street with his wife, Leanna Hawk (Leanna), and, beginning in December 2003, with Kaylene R., a foster child. Jessica became good friends with Kaylene and with Brittney C., another foster child who later lived with the Hawks.

Appellant’s efforts to be alone with Jessica

Peggy did not observe any sexual conduct between appellant and Jessica, but felt that appellant was trying to be alone with Jessica. He would request that Jessica visit him when Leanna was away. Once, he asked if Jessica could come to his house to make dinner for him. Peggy said no. Another time, he asked if Jessica could come to his house to show him how to sort his laundry. Peggy said that Jessica could not show him how to sort laundry, but that she would. When she got to his house, the laundry was already sorted. Once when appellant was in the pool close to Jessica, Peggy heard him say when she walked by, “Don’t say anything.” Peggy, Jessica and the Hawks attended the same church. One Sunday at church, when Peggy thought Jessica was at the youth service, she was in the parking lot with appellant.

The Sexual incidents

On New Year’s Eve 2003, Jessica was at the Hawks’s house for a sleepover. Appellant, Leanna, Kaylene and one of Kaylene’s friends were there. Early in the evening, the girls wrestled with appellant in the living room. Everyone had their clothes on. After midnight, only Jessica and appellant were awake. After talking in the living room, they went into Kaylene’s room, where appellant removed Jessica’s clothes and bra, and wrestled with her on the floor. He was dressed and straddled over her, making thrusting motions with his pelvis. He stopped when Jessica asked what he was doing.

At the end of January 2004, Jessica was at appellant’s house, and he suggested she try on lingerie. When she did, he told her “it looked nice” and fondled her breasts. He removed the lingerie, kissed her and touched her vagina, without inserting his fingers. They went into Kaylene’s room where appellant digitally penetrated her. Jessica got dressed and went home.

Jessica first had intercourse with appellant on a weekend she went to San Diego with the Hawks. The night before they left, she stayed at their house. At approximately 11:00 p.m., they went to a restaurant. When they returned to appellant’s house, Kaylene went to bed, and Leanna went to the store. Jessica was on the couch in the living room. Appellant told her he liked a poem about making love she had given him that day. He sat on the couch and kissed and orally copulated her. They got on the floor and had intercourse. It was Jessica’s first time. They had sex many times after that.

In San Diego Jessica, Kaylene and Matt, another Hawks’ foster child, slept on the floor next to the bed in which appellant and Leanna were sleeping. Jessica was closest to the bed. During the night, appellant touched Jessica’s breasts and digitally penetrated her vagina.

Jessica orally copulated appellant virtually “every time [she] saw him. . . .” She did it in his house and in his car, when he gave her driving lessons. Jessica noticed that appellant was circumcised but nothing unusual about his penis. Once, after Jessica orally copulated appellant, he lubricated himself, placed a “butt plug” into Jessica and inserted his penis, making thrusting motions.

A number of other sexually provocative incidents occurred. On one occasion, photographs were taken of Jessica wearing Leanna’s vinyl knee length skirt, tight top with no sleeves, lace-up boots and choker. Another time, at appellant’s house, appellant, Leanna and another man were spanking Leanna’s friend with paddles. They asked if Jessica wanted to participate, but she declined. Another time, Jessica was spending the night at appellant’s house. Leanna was lying in bed on her stomach, in her panties. Appellant was massaging her and tapping her legs with a “stick thing.” Jessica was sitting on the edge of the bed watching. Appellant asked if she wanted to see what it felt like, so she lay on her stomach, and he and Leanna tapped her on her legs and buttocks with the object. Leanna turned on her back and appellant rubbed lotion on her. He asked if Jessica wanted to join, and Jessica rubbed Leanna’s legs. But Jessica declined appellant’s invitation to rub Leanna’s breasts.

Kaylene lived with the Hawks for six months, beginning near the end of 2003. She saw Jessica everyday, and they had frequent sleepovers at each other’s houses. On New Year’s Eve 2003, Kaylene had a sleepover party with Jessica and another friend. The girls watched television and wrestled with appellant. She saw nothing improper occur. Leanna went to bed shortly after midnight, and the girls went to sleep on the living room floor at 2:00 a.m. Appellant went to bed when the girls did.

During one sleepover after New Years, Leanna was asleep in Kaylene’s room. Kaylene awoke and observed Jessica on the floor with appellant. He was lying next to her, under a blanket. He then got on top of her. Kaylene saw sexual movement in the blanket and heard a sound like someone moving in bed. Kaylene said nothing and went back to sleep.

During another sleepover, Kaylene was again in her room, and Jessica was sleeping on her floor. Kaylene saw and heard the same things between appellant and Jessica as before, but again said nothing. This time there were no sheets or blankets on them, and appellant was naked.

Other than the two incidents in her bedroom, Kaylene did not observe any sexual contact between Jessica and appellant. The night before they went to San Diego the first time, Jessica slept in her room and Kaylene did not see any sexual activity. On two trips to San Diego, appellant and Jessica spent a lot of time together, but Kaylene did not see any sexual conduct. She never saw Jessica and appellant engage in sexual relations in a car.

Appellant took a number of “glamour” type pictures of Kaylene in provocative poses at his house, in Jessica and Leanna’s presence. Kaylene chose the poses. On numerous occasions, appellant gave her back massages, at her request. Sometimes he massaged her feet and hands.

Discovery of Appellant’s sexual contacts with Jessica

After the second trip to San Diego, Jessica was alone in the garage with appellant when he found a ring and gave it to her, saying that it meant she belonged to him. On another occasion in the garage, Jessica found a book entitled, “‘The Marketplace,’” containing descriptions of sex acts, sex slavery and the use of whips and paddles. Jessica asked if she could read it, and appellant said that she could, but not to let her mother see it because it was inappropriate. As she was going through the garage, Jessica found appellant’s old military identification card that appellant said she could keep. She used it as a bookmark.

Jessica kept the book on her desk in her house. In July 2004, Peggy discovered it and knew when appellant’s identification card fell out of it that Jessica had not gotten it from a friend, as she said. That same day, Peggy telephoned appellant and told him that all contact between their houses was permanently terminated. Peggy checked Jessica’s cell phone records and saw that she spent a great deal of time on the telephone with appellant.

The investigation

Two months after Peggy discovered the book, Jessica was persuaded to go to the police. She did not reveal everything because Peggy was present, and because she still loved appellant. She reported that she first had intercourse with him on a trip to San Diego. She said she had previously had intercourse with a 17-year-old boy. She did not mention engaging in any sexual activity with appellant in a car.

On October 19, 2004, Detective Timothy O’Quinn of the Los Angeles Sheriff’s Department met with Jessica alone at his office in Lancaster. She told him that she had been sexually active with boys her own age and had engaged in sex with appellant at his home. He testified that it is common for sexually abused children to be reluctant to disclose to family members or friends that sort of abuse.

On January 12, 2005, Detective O’Quinn had a second meeting with Jessica, at which the deputy district attorney was present. In this interview, Jessica disclosed information she had not previously disclosed. She corrected her previous statement that she had been sexually active in the past, stating that she had not. She disclosed for the first time that appellant gave her driving lessons during which multiple acts of oral copulation occurred. She also reported the sexual activities involving Leanna. Detective O’Quinn testified that it is common for children to reveal additional information in subsequent interviews.

As part of the investigation, the detective had Jessica make a tape-recorded “pretext call” to appellant that lasted over an hour. In that call, appellant did not respond to or deny many of Jessica’s references to their sexual contacts. For example, when Jessica said that, “[W]e both know we had a relationship” and asked if she was supposed to deny that they had sex, appellant did not deny having sex or a relationship. At another point in the conversation, he asked Jessica if she had agreed to talk to the police and what she would say when the police asked if she had sex with him. He said that if she reported him to the police, he was going to go to jail, “innocent or not” and that his life would be over. Appellant also made statements suggesting that he had done nothing wrong. Jessica told him that Peggy wanted her to report appellant’s conduct to the police. Appellant responded: “Well, nothing has ever happened between us, so I’m not worried about anything.” When Jessica asked appellant if their relationship was merely based on sex, he responded that he loved her “in a good Christianly manner.” Appellant also made statements suggesting that he knew the call was a pretext call.

The defense evidence

Leanna testified that appellant had little opportunity to engage in the conduct with which he was charged, as he was infrequently home alone with one child. Through their foster parent training, the Hawks knew not to leave a child alone with a man. When Jessica visited, Brittney, Kaylene or Leanna was present. When appellant helped Jessica with homework, they worked in the living room with someone else present. Appellant’s driving lessons were on the back lot of his house, before dark, and were very short. Leanna usually went to sleep after appellant, who went to bed early because he had to wake up early for work. She was a light sleeper and would have awoken if appellant rolled over or woke up during the night. Her house is not well insulated so sounds can be heard from one room to another.

The children usually rode to church with Peggy. There was one service for children and one for teenagers. Leanna and appellant attended the adult service, Kaylene and Jessica attended the teen service. Appellant left the service and went into the lobby only infrequently, when his phone rang.

Before leaving on the first trip to San Diego with Jessica, between 6:00 and 7:00 p.m., the Hawks and the children went to a restaurant for two to two and one-half hours and then went home, loaded the car, left for San Diego at 10:00 or 11:00 p.m., and arrived there at 12:30 or 1:00 a.m. The entire family stayed in one room only because of an error in the reservations. She and appellant slept in the bed, and the three children slept on the floor. Jessica had no sexual contact with appellant.

Leanna felt that Peggy was too strict with Jessica. Once, she saw Peggy slap Jessica’s face and told Peggy that if she saw that again, she would report her. Leanna heard Peggy make disparaging remarks about people of color.[2] Leanna claimed that she and appellant terminated the relationship with Peggy.

Leanna described a healthy sex life with appellant. He had two “very apparent” bumps on the top of his penis that were more visible when he was erect. She denied that any paddling incidents occurred, that she ever appeared partially clothed in front of any of the children, and that appellant encouraged Jessica to fondle Leanna’s breasts.

The ring Jessica claimed appellant gave to her was Leanna’s. She last saw it months earlier, when she put it in her jewelry box in her room. She never saw Jessica wearing it and did not give her permission to take it.

Leanna was present when Kaylene was photographed wearing Leanna’s clothes. She saw nothing inappropriate in the photographs. Some of the pictures were altered by having the bottom cut off, making it appear that Kaylene was not wearing clothes when she was.

Leanna’s son, David Weekley, who lived with his mother from the end of June to the end of July 2004, and her goddaughter, Jackie, who visited the Hawks on some weekends and during Easter break, corroborated that Leanna was a light sleeper, and went to bed after appellant. They also testified that they never saw appellant alone with Jessica and that Jessica used racial slurs in reference to appellant. Jackie also testified that during Easter break, she was in appellant’s garage, and he allowed the girls to take some of his ex-wife’s clothing, but not to open other boxes. Appellant did not give Jessica a book, and Jackie did not see appellant give Jessica an identification card.

Brittney testified that she moved in with the Hawks and Kaylene on March 15, 2004. Jessica frequently visited. When Brittney first met her, Jessica told her that she had a sex book. Brittney never saw any improper sexual behavior between appellant and Jessica. Jessica never told her that she was having a sexual relationship with appellant, and Brittney never suspected it. When Jessica was at the house, she often followed appellant like a “lost puppy.”

Brittney recounted an incident on March 18, 2004, when she, Jessica and Kaylene went to the mall and were caught shoplifting. They were handcuffed, but allowed to go home with appellant, who came to get them and lectured them about the seriousness of their conduct.

Brittney spoke with Detective O’Quinn and gave him a signed statement, stating that Jessica got a sex book from appellant’s garage. Brittney denied telling the detective that appellant touched her breasts during a conversation about self-defense, claiming she said he touched her above the breasts. She also told the detective that appellant was not a good foster parent.

Brittney denied that appellant gave her back massages. She had an injured back, and appellant checked it to see if she had needed a doctor. The incidents occurred in the living room, with Leanna present. She never felt that appellant had any sexual interest in her and never saw any inappropriate contact between appellant and any of the foster children.

Officer Jonathan Stambook conducted an investigation. On October 15, 2004, he met with Jessica at the Lake Los Angeles substation. She told him that the first time she had intercourse with appellant was on a trip to San Diego. She also said that she had had intercourse once before that with a 17-year-old boy. She reported wrestling with appellant, modeling lingerie for him, having sexual intercourse with him, orally copulating him on a regular basis, and him sodomizing her at least once.

Prosecution’s Rebuttal evidence

Detective O’Quinn interviewed Brittney on October 25, 2004. She said appellant often gave her back massages in a bedroom at his house. Brittney never told the detective that she had a back injury. She told him that there was one occasion, during a conversation on self-defense, where appellant touched her breast, although his hand did not linger there long. She told him that Jessica and appellant spent a lot of time together but that she had not witnessed any inappropriate contact.

On February 20, 2005, Andrew Hanson interviewed Brittney. He asked her if she had seen Jessica with any type of sex book. Brittney said she did not see appellant give Jessica the book and did not see Jessica take it, but the book came from the garage.

DISCUSSION

I. Denial of motion for new trial

A. The motion

After the verdicts were rendered, appellant moved for a new trial on the grounds of newly discovered evidence (§ 1181, subd. (8))[3] and ineffective assistance of counsel. (People v. Callahan (2004) 124 Cal.App.4th 198, 211). In support of the motion, appellant attached 10 declarations, covering 29 pages. We briefly review the thrust of each.

Leanna submitted a declaration attempting to show that appellant was never alone with Jessica so as to be able to commit the charged acts. The parking lot at the church they attended was not secluded. Appellant could have had no sexual contact with Jessica during Easter break because she was only at his house on Easter Sunday and did not enter the house, but remained in the front yard with other guests.

To show that appellant would not have wanted to, and did not, perform the charged sex acts with Jessica, Leanna’s declaration stated that appellant did not like oral or anal sex, wore briefs and had distinguishing marks on his penis.

The declaration sought to establish that Jessica had a motive to “frame” appellant because she was terrified of Peggy, who had made Jessica’s sister, Sarah, leave Peggy’s house when Sarah was 16 because Sarah was having sex and drinking. Leanna stated that Jessica’s fear that Peggy would do the same to her when Peggy discovered the sex book, led Jessica to accuse appellant.

Leanna’s declaration included statements tending to show that she and appellant were good foster parents and were not people who would act inappropriately with children. For example, the declaration stated that Kaylene was removed from the Hawks’ care at Leanna’s and appellant’s request because Kaylene was acting out, not because the girls were dressing up. Kaylene’s cousin, with whom she went to live after leaving the Hawks’, telephoned Leanna and told her that Kaylene reported that she had never witnessed anything at appellant’s residence. Brittney left the Hawks care at their request due to her behavioral problems, not because they lost their foster care certification.

Finally, Leanna declared that she and appellant “gave [their lawyers] the information of possible witnesses who may have information pertaining to the criminal matter. . . . Richard Monahan who was the attorney assigned to the case, never interviewed them, nor did anyone else assigned to the case.”

The declarations of Malaney Rodgers, the mother of Willow R., age 10, and Matthew R., age 8, and her boyfriend, Craig Story, stated that the children told them that nothing of a sexual nature or inappropriate occurred between appellant and anyone else living or visiting his home when they were there.

Valleri Roberts, Willow’s foster parent from January 2004 until March 2004, said that Willow often visited her brother at appellant’s residence and never once expressed any concerns about the activities there.

Sue Brown, a friend of Leanna and appellant, stated that two years earlier she stored two taped-closed boxes “of miscellaneous items” in appellant’s garage with her name on them. The book that Jessica said appellant gave her was her book and was in one of the sealed boxes.

Shirley Collins, Brittney’s grandmother, gave a declaration allowing Brittney to give a declaration and stating that Brittney was not coerced into doing so. Brittney declared that on May 6, 2005, she had had a telephone conversation with Jessica in which Brittney angrily told her that she hoped she was happy that she ruined a man’s life, Jessica replied that she “had to say those things happen,” but did not elaborate on what she meant. Brittney also stated that during spring break, Jessica was not at appellant’s house except on Easter Sunday and during the time she was there all of the guests remained outside, including appellant and Jessica; that Jessica solicited Weekley for sex when they went to the county fair; that she saw a dildo at Jessica’s house, inside of Jessica’s closet; and that the driving lessons given by appellant were not in secluded areas but were on his property.

Vicky Hawk, Kaylene’s grandmother, gave a declaration stating that she did not “for one minute believe what [Kaylene] has stated occurred while she was in [appellant] and Leanna Hawk’s home” because Kaylene was molested by her mother’s boyfriend since she was four years old, was a liar, made false reports to protective services and had other instances of lying and making false reports, was violent, stole things, and was vengeful and had severe problems with men.

Shaun McClain, the son of Leanna’s former husband, gave a declaration stating that Leanna was a very light sleeper and that appellant went to bed early.

Dawn Hawkins, appellant’s ex-wife gave a declaration that he was a “Mr. Mom” when he was married to her; that during their marriage she never witnessed him being inappropriate with any child or young adult; and that he did not like oral or anal sex, wore briefs and had a distinctive hole in his penis.

The trial court denied the motion.[4]

B. Appellant’s contention

Appellant contends that the trial court erred in denying his motion for a new trial which was based on newly discovered evidence and ineffective assistance of counsel. He argues that the newly discovered evidence was the purported May 6, 2005 telephone conversation between Jessica and Brittney in which Jessica “essentially admitted to lying about the molestation.” He further argues that considering the declarations accompanying the motion for new trial as evidence of what the declarants would have testified to, “there is a pattern of a failure to call significant witnesses known to defense counsel, a failure which can have no reasonable tactical justification” and “serial failure to interview witnesses known to counsel weakened appellant’s defense to the point that appellant was deprived of his right to effective representation.” This contention is without merit.

C. Standard of review

Generally, a trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it exercised that discretion properly. (People v. Davis (1995) 10 Cal.4th 463, 524.) “‘”The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’” (Ibid.) A motion for new trial based on newly discovered evidence is looked upon with disfavor and unless there is a clear abuse of discretion, an appellate court will not interfere with the trial court’s ruling. (People v. Owens (1967) 252 Cal.App.2d 548, 551.)

But where a new trial motion is based on the denial of a fundamental right, the appellate court independently reviews the issue. (See, e.g., People v. Brown (1976) 61 Cal.App.3d 476, 481 [motion for new trial based on juror misconduct].) Because a claim of ineffective assistance of counsel challenges the fundamental right of a criminal defendant to “‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate’” (People v. Ledesma (1987) 43 Cal.3d 171, 215), a trial court’s denial of a motion for new trial on that ground requires our independent review.[5]

D. Newly discovered evidence

To entitle a party to a new trial on the ground of newly discovered evidence, it must be shown that the evidence, not just its materiality, was newly discovered, the evidence is not merely cumulative, it is such as to render a different result at re-trial probable, that the party could not have discovered and produced the information at trial with reasonable diligence, and the facts be shown “‘by the best evidence of which the case admits.’” (People v. Dyer (1988) 45 Cal.3d 26, 50; § 1181, subd. (8) [must be evidence which could not have been presented at trial with reasonable diligence].)

The only newly discovered evidence here was the May 6, 2005 telephone conversation between Jessica and Brittney, which occurred after the trial of this matter. Appellant characterizes Jessica’s comment in that conversation as having “essentially admit[ted] . . . lying about the molestation.” Unfortunately for appellant, his characterization is purely speculative. Brittney’s declaration states: “[O]n May 6, 2005, I had a telephone conversation with Jessica R. In that telephone conversation I was angry and stated to her that I hoped she was happy that she had ruined a man’s life, that a wife would be without her husband, that two boys would grow up without their father, and that her doing this would probably kill [appellant’s] mother. Jessica’s reply to me at that time was that I didn’t understand, she had to say those things happen (sic). She did not . . . elaborate on what she meant by that statement and said she had to go when I asked her what she meant by that.” It is by no means clear that the statement was an admission. It is susceptible to other interpretations, including an interpretation that she told the truth out of moral obligation or because she was testifying under oath.

Additionally, Jessica’s statement to Brittney was not such as to render a different trial result probable. The statement was not a clear admission. Brittney was subject to impeachment for her past shoplifting and for conflicting statements she made to police. Kaylene also testified to seeing sexual conduct between appellant and Jessica on at least two occasions.

E. Ineffective assistance of counsel “‘A new trial may be granted where the trial court finds that the defendant received ineffective assistance of counsel. [Citations.]’” (People v. Callahan, supra,124 Cal.App.4th at p. 212.) Ordinarily, “‘trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.]’” (People. v. Cornwell (2005) 37 Cal.4th 50, 101.) But here, because fundamental rights are implicated, as previously stated, we independently review the trial court’s denial of the new trial motion. (People v. Brown, supra, 61 Cal.App.3d at p. 481.)

The standard for establishing ineffective assistance of counsel is well settled. The “‘defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. (Strickland v. Washington, supra, at p. 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.)

“Because we are reviewing trial counsel’s conduct in hindsight, we hesitate to ‘second-guess’ his tactical decisions. . . .” (People v. Callahan, supra,124 Cal.App.4th at p. 212.) Consequently, “‘”[r]eviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] . . . “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.” [Citation.]” . . . where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions” (People v. Jones (2003) 29 Cal.4th 1229, 1254) or counsel was asked for an explanation of his conduct and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

The challenged conduct of counsel here pertains to whether to call certain witnesses. Such decisions are peculiarly matters of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Appellant’s counsel was not asked for his reasons for failing to present the witnesses, the reasons are not apparent from the record and we cannot say that counsel had “no rational tactical purpose for his act[s] or omission[s].” The declarations were largely cumulative of the trial testimony and collateral to the central issues in the case. Much of the evidence is inadmissible, as it contains rampant single and double hearsay (People v. Radz (1931) 119 Cal.App. 435, 436), inadmissible conclusions and lay opinions (People v. Cencevich (1923) 64 Cal.App. 39, 42) and irrelevant material.[6] Further, they contain matters likely to be excluded under Evidence Code section 352. Defense counsel might reasonably have concluded that it would have been tactically detrimental to call a series of witnesses the crux of whose testimony faced serious admissibility questions and whose evidence was largely cumulative.

The submitted declarations do not show that defense counsel’s representation was deficient. They do not support his claim that his counsel failed to interview and call significant witnesses to testify. The declarations do not indicate whether defense counsel knew of all of the witnesses whose declarations accompanied the motion for new trial or what they were likely to say. Leanna’s declaration merely states that, “[W]e gave [our attorneys] the information of possible witnesses who may have information pertaining to the criminal matter [appellant] is charged with. . . . [T]he attorney assigned to the case, never interviewed them, nor did anyone else assigned to the case.” It does not specify the names of the potential witnesses provided to counsel, nor does it state what the attorneys were told about the prospective witnesses which would have been important in the attorney’s assessment of whether to attempt to contact them. Even assuming that defense counsel was provided with the identity of all of the declarants and the information contained in their declarations, there is no competent evidence that defense counsel failed to investigate and what may have been learned in the course of any investigations that were made. None of the witnesses’ declarations stated that he or she was not contacted by defense counsel. Leanna’s statement that defense counsel “never interviewed [the witnesses]” is without foundation and is hearsay, and most probably inadmissible. (People v. Radz, supra, at p. 436 [hearsay statements in affidavit supporting motion for new trial for newly discovered evidence must be disregarded].)

Even if it is established that counsel’s representation was deficient, there is no reasonable probability that the outcome of the proceeding would have been different had it not been so. As previously stated, most of the information in the declarations would not have been admissible and thus would never have been heard by the jury. Several of the key declarants did testify at trial. Much of the information in the declarations had been presented to the jury through other witnesses. While not overwhelming, the evidence against appellant was formidable.

II. Ineffective assistance of counsel

Appellant contends that his trial counsel’s failure to interview and call for trial key witnesses known to defense counsel constituted ineffective assistance of counsel. Because we review this issue under the same standard as reviewing the denial of the motion for new trial on the ground of ineffective assistance of counsel, for the same reasons discussed in part IC, ante, we reject this contention.

III. Blakely

Appellant was convicted of four counts of lewd acts on a 14 or 15-year-old child by a person more than 10 years older (counts 1-4) and two counts of oral copulation by a person over 21 with a person under the age of 16 (counts 5 & 6). The trial court sentenced appellant to the midterm of two years on count 1, the principal count, and to consecutive sentences of one third the midterm of two years, or eight months, on each of the other five counts. The consecutive sentences were based upon the trial court’s finding of appellant’s planning, sophistication and professionalism in committing the offenses.

Appellant contends that imposition of consecutive sentences deprived him of his right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum and to due process, as set forth in Blakely.

Appellant’s contention that Blakely, supra, 542 U.S. 296 renders the imposition of consecutive sentences in this case unconstitutional is without merit. This contention was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238, which concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) We are, of course, bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)[7]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________, P. J.

BOREN

We concur:

______________________, J. _______________________, J.

DOI TODD ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Andy Hanson, a licensed private investigator, met Peggy on February 7, 2005, at the restaurant where she worked. Peggy told him that her neighbor had done bad things to her daughter, that he was Black and his wife was White and that they were not married. Her tone of voice was disapproving of the relationship. Brittney also testified that she heard Peggy say that she did not like interracial relationships and how African-Americans lived and acted.

[3] Section 1181, subdivision (8), provides as follows: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: . . . 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, . . .”

[4] The entire text of the trial court’s ruling is as follows: “All right. Motion for new trial, I’ve got to look at all of the items that you’ve mentioned. I also have to determine whether or not the evidence is, in fact, newly discovered, whether it’s cumulative or not, whether it’s likely to produce different results if introduced at a retrial, that the moving party could not, with reasonable diligence, have produced the evidence at trial. And it looks to me that the items have either been testified to by one witness or another, that they are collateral to the issues that involve speculation in what the children would have told us, and certainly were known to the defense. The defense was in a peculiar position to know exactly when they went to San Diego and where they stayed, and so this certainly could have been discovered and produced with reasonable diligence. And having recalled the trial, the length of time that the trial took, and the cross examination, . . . the diligence with which the defense presented their case, I certainly cannot conclude that Mr. Monahan was not an energetic and effective counsel. I can’t find incompetency of counsel on this record. So the motion for new trial will be denied.”

[5] An appellate court reviews the granting of a motion for new trial on the ground of ineffective assistance of counsel for an abuse of discretion. (People v. Ault (2004) 33 Cal.4th 1250, 1255,1272 (Ault); People v. Callahan, supra, 124 Cal.App.4th at p. 209.) The different standards of review for the denial and the granting of motions for new trial have been justified on numerous grounds including that (1) an order granting a new trial does not finally dispose of any party’s rights as does an order denying the motion (Ault, supra, at p. 1261), (2) when fundamental rights such as the right to counsel are involved, a grant of a motion for new trial vindicates those rights whereas a denial of the motion truncates them (id. at p. 1262; 1265), (3) it would be a “‘nonsequitur’ to apply more deferential review to a claimed error affecting the fairness of the judgment simply because the complaining party moved unsuccessfully for a new trial on the same ground in the court below,” (id. at p. 1262) and (4) because courts have “a strong incentive not to crowd their dockets and squander limited judicial resources by ordering unnecessarily that cases over which they presided, and which have already been taken to verdict, be retried,” they grant new trials with considerable care requiring less stringent appellate oversight. (Id. at pp. 1271-1272).

[6] For example, the statement in the declarations of Rodgers and Story that Rodgers’s children told them that they saw nothing sexual occur between Jessica and appellant was inadmissible hearsay and lacked foundation. The statements in Robert’s declaration that her children “never once had any concerns about any activities or care they received in the Hawk’s home” and that in her opinion the Hawks’ home was “very comfortable and well adjusted household” were inadmissible hearsay, conclusion and lacked foundation.

[7] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California (Feb. 21, 2006, No. 05- 6551) ___ U.S. ___, on the issue of whether Blakely applies to California’s determinate sentencing law.