P. v. Hawlish

Filed 3/27/07 P. v. Hawlish CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marvin E. Mizell, Maxine Cutler and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Victoria Christina Hawlish was charged with five counts of committing lewd acts (Pen. Code,  288, subd. (c)(1)) upon a 15-year-old girl between June 1, 2003 and October 15, 2003. A jury convicted Hawlish of three counts of the lesser included offense of attempted lewd acts upon a child. (Pen. Code, 664 & 288, subd. (c)(1).) The court sentenced Hawlish to a prison term of one year and eight months.

Hawlish contends the court should have instructed the jury sua sponte with CALJIC No. 4.71.5 which requires, inter alia, that the jury agree unanimously upon the same specific act constituting the crime. She also asserts evidentiary error and ineffective assistance of counsel. We reject these arguments and affirm the judgment.

FACTS

When Yolanda R. was younger, she and her family lived at a Burbank apartment complex managed by Hawlish. Hawlish often paid Yolanda and her siblings to do gardening and other jobs. Then Hawlish moved away.

When Yolanda was eleven years old, she visited Hawlish at Hawlishs residence in Newport Beach. When Yolanda returned home, her pubic hair had been shaved by Hawlish. Yolandas mother got mad at Hawlish and forbade Yolanda to see her again.

Yolandas mother did not stay mad at Hawlish for long. Sometime during the 2002/2003 school year, Yolandas mother told Hawlish that Yolanda was misbehaving by missing school and possibly using drugs. Hawlish offered to take [Yolanda] with her for a change of environment and to give the girl some good advice. Hawlish, now married with children, lived in Corona del Mar. Yolanda stayed with Hawlish for one week and expressed a desire to stay longer. Yolandas mother agreed to let Yolanda stay with Hawlish as long as Hawlish could put up with her. From June through November of 2003, Yolanda lived with Hawlish; in September she began attending Corona del Mar High School. Hawlish bought Yolanda an extensive new wardrobe.

Yolanda testified she often babysat Hawlishs children and sometimes cleaned the house. Hawlish allowed Yolanda to phone her mother only in Hawlishs presence; Yolanda did not phone her mother very often.

Every night Hawlish selected Yolandas school clothes for the next day and required Yolanda to undress in front of her. Hawlish often slapped Yolandas buttocks (probably more than 100 times) and made comments about and touched Yolandas breasts (more than five times). These actions made Yolanda feel grossed out. Hawlish touched Yolandas vagina about 40 times. Hawlish would try to insert her finger into Yolandas vagina, but was unsuccessful due to Yolandas panties. Once, Hawlish asked whose vagina it was and Yolanda replied it was Hawlishs. No one else ever saw these events. Almost every day Hawlish made Yolanda feel Hawlishs breast implants. Hawlish had a dildo called Jeff Stryker and once smacked Yolandas face with it. Hawlish also had a silver bullet little vibrator and touched Yolandas vagina over her clothes with it. Hawlish invited Yolanda to use these sex toys. About six times Hawlish came into the shower (with two shower heads) in Hawlishs bathroom when Yolanda was taking a shower; Hawlish would sometimes squeeze Yolandas breasts and pinch her nipples. Although Yolanda usually used a downstairs shower, she used the shower in Hawlishs bathroom about 12 times. Yolanda could not recall the day of the week, the month, or the time of day when this occurred, but it was sometimes in the morning and sometimes in the afternoon. Once, a naked Hawlish asked Yolanda to rub her belly because her stomach hurt; Hawlish moved Yolandas hand to Hawlishs pubic hair, at which point Yolanda moved her hand away. Yolanda told Hawlish that shit was sick. Hawlish replied, Stop being a little girl and be a woman.

Ty O., a male high school student, described an incident in the high school parking lot where Hawlish acted really flirty with all the guys and even the girls. Specifically, she was hooting at all the water polo guys who were wearing towels. Hawlish tried to freak dance with them. Ty sat on Hawlishs lap in her car for a few minutes.

Yolanda testified she went to see the high school counselor when Hawlish was out of town because it was her only time to escape.[1] Yolanda testified Hawlish had not kicked her out of the house nor had Hawlish told her she would have to leave. The school counselor testified Yolanda seemed upset when she came into the counselors office. She was teary and . . . couldnt give . . . lot of information, but wanted to move back with her mom. She was so afraid she didnt want to go back [to Hawlishs house] to get her clothes.

Yolandas mother testified Yolanda phoned and asked the mother to come and get her. When her mother asked why, Yolanda replied, Because Im not at ease. Her mother said, Yes, because Victoria has you do your homework, make[s] you study and she has you under control. Yolanda replied, No, whats happening is that Victoria is a lesbian. When her mother picked her up, Yolanda looked very scared, hugged her mother, and wept. Hawlish phoned Yolandas mother that day, crying and saying she wanted Yolanda back and that she didnt know what happened. About a month later, Yolandas mother took Yolanda to see a counselor because Yolanda was acting strangely  just sleeping and not wanting to talk.

An investigation ensued. Detective John Hougan interviewed Yolanda in early November. Yolanda was upset and cried at times and got angry at other times. She described several incidents of physical contact with Hawlish: Hawlish shaving Yolandas pubic hair in what Hawlish called a porn star trim; touching Yolandas vagina while Yolanda was changing clothes; grabbing her buttocks and breasts (including in the shower); holding a vibrator to her vagina; asking Yolanda to touch Hawlishs breasts and rub her stomach; and asking who Yolandas vagina belonged to. Members of the Child Abuse Services Team (C.A.S.T.) also interviewed Yolanda twice.

Detective Hougan and other officers interviewed Hawlish at her home. Hawlish told Hougan that Yolanda was defiant and untrustworthy, lied a lot, and was out with boys all the time, but was good with Hawlishs children. Hawlish denied Yolandas allegations and denied having a dildo. Hawlish did admit to having a silver bullet vibrator. After Hougan informed Hawlish he had a warrant to search her home, Hawlish admitted she did have a dildo.

In Hawlishs bedroom closet the officers found a dildo, a small silver vibrator, and a baggie containing approximately three grams of suspected marijuana, and in her bathroom cabinet, another vibrator.

Hawlishs husband, Jeffrey,[2] who owned an electrical and communications contracting company with large clients such as WalMart, testified in her defense. He stated a nanny named Erica was at their house every weekday from around 7:00 a.m. to 4:00 or 5:00 p.m. Jeffrey worked at home on weekdays, but left the house periodically. He did not work on weekends. To his knowledge, Yolanda had never used the upstairs bathroom. He and his wife decided Yolanda should leave their home because Yolanda lied about dating boys, including a 24-year-old, saying she was at the movies when she was at the beach, and lied about collecting money for her cross country team. Once, when he and his wife went to a restaurant and left Yolanda home to babysit, neighbors reported to the police that Yolanda and a neighbor boy were in front of the house smoking marijuana and drinking beer. Before Victoria Hawlish left for Florida, she and Jeffrey told Yolanda that upon Victorias return they would sit down and have a discussion about [Yolanda] going back to her parents. The next day Yolanda left their home.

The nanny, Erica Heras, testified she worked at the Hawlish home from 7:00 a.m. to 5:00 or 6:00 p.m. while Yolanda lived there, and that Jeffrey was home during those hours. Erica had no knowledge of Yolanda ever using the upstairs bathroom.

During the Peoples rebuttal, Detective Hougan testified that when he interviewed Jeffrey Hawlish (without his wife present) and told Jeffrey about Yolandas allegations, Jeffrey replied he hoped the allegations werent true. When asked what he thought of Yolanda living with them, Jeffrey stated he didnt have a problem with it, he liked Yolanda. Jeffrey said he and Yolanda had shared only three or four conversations the whole time she was there. The interview ended when Hawlish approached the men and asked what they were talking about. Jeffrey subsequently told the detective they had hired an attorney; thereafter, Jeffrey would not talk to the police.

In closing argument, the prosecutor identified the conduct relied upon in charging each of the five counts: grabbing Yolandas breasts and vagina while not in the shower (count 1); making Yolanda touch Hawlishs breasts (count 2); placing the silver bullet vibrator on Yolandas vagina over her clothing (count 3); grabbing Yolandas breasts and vagina while in the shower (count 4); and grabbing Yolandas hand while it was on Hawlishs belly and moving it toward Hawlishs vagina (count 5). The jury found Hawlish guilty of the lesser included offense of attempted lewd acts on a child in counts 1, 4, and 5. She was acquitted of the lewd acts charged in counts 2 and 3, and the jury was unable to reach a verdict with respect to lesser included offenses on those counts.

DISCUSSION

The Jury Unanimously Convicted Hawlish

Hawlish contends her conviction must be reversed because there is no guarantee that the jury reached a unanimous verdict as to any of the alleged acts, especially because the information did not allege specific dates or times as to each charge. She notes Yolanda testified that her breasts and vaginal area [were] fondled a number of times in and out of the shower; Hawlish asserts the jurors could have relied upon different alleged touching and incidents without reaching the required unanimity [as] to a specific touching act. Hawlish concludes the court should have given CALJIC No. 4.71.5 sua sponte. CALJIC No. 4.71.5 provides: Defendant is accused [in Count[s] ____ ] of having committed the crime of ____, a violation of section ____ of the Penal Code, on or about a period of time between ____ and ____. [] In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [all of the acts described by the alleged victim] within the period alleged. [] And, in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged. [] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.

[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1452.) The People argue the prosecution elected among the crimes potentially established by the evidence when the prosecutor, in her closing remarks to the jury, (1) described the specific acts encompassed by the multiple-act counts (e.g. count one [Hawlish touching Yolandas breasts and vagina while not in the shower] and count 4 [Hawlish touching Yolandas breasts and vagina in the shower]), and (2) stated the jury must agree, as to these counts, that there was a touching with lewd intent that happened a first time.

We need not decide whether the prosecution effectively elected among the crimes because the court gave the jury an unanimity instruction, CALJIC No. 17.01, as follows: The defendant is accused of having committed the crime of Lewd Act upon a Child in [Counts 1, 2 and 4]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] upon which a conviction [on each Count ____ ] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [she] committed any one or more of the [acts]. However, in order to return a verdict of guilty [to each Count in Counts 1, 2 and 4], all jurors must agree that [she] committed the same [act] or [acts]. It is not necessary that the particular [act] agreed upon be stated in your verdict.

CALJIC No. 17.01 and CALJIC No. 4.71.5 play the same role to the extent [they require] the jury to agree beyond a reasonable doubt defendant committed the same act. (People v. Deletto (1983) 147 Cal.App.3d 458, 475.) The jury was properly instructed that all jurors must agree that [Hawlish] committed the same act or acts. (Id. at p. 472.) It is presumed that jurors properly follow instructions. (People v. Harris (1994) 9 Cal.4th 407, 431.) Thus, there is no merit in Hawlishs contention the jurys verdicts were not unanimous.

The Court Did Not Abuse Its Discretion by Excluding Hawlishs Statements about Yolandas Drug Use and Sexual Behavior, and Defense Counsel Did Not Provide Ineffective Assistance by Failing to Cross-Examine Yolanda About These Subjects

Hawlish contends the defense was precluded from eliciting testimony regarding Yolandas (1) receiving many hickeys throughout her body and . . . allegedly having sexual relations with a thirty seven year old man, and (2) alleged methamphetamine and drug use. Hawlish argues the evidence was relevant to show that she and her husband told Yolanda she would have to leave their home (due to her misbehavior), thus angering Yolanda and giving her a motive to lie about Hawlish. The evidence erroneously excluded, according to Hawlish, were portions of a tape recorded telephone conversation she had with Detective Hougan on November 21, 2003, shortly after the search warrant had been executed (the November conversation). She also complains because her trial counsel failed to cross-examine Yolanda on this subject matter.

The People moved in limine to introduce into evidence a redacted version of the November conversation. The redacted parts of the conversation were statements by Hawlish about Yolandas alleged sexual behavior and drug use. The prosecutor argued the redactions were necessary because the statements were hearsay and because defense counsel had not complied with the procedure set forth in Evidence Code section 782. Evidence Code section 782 allows for the admission of evidence of sexual conduct of the complaining witness for the limited purpose of attacking credibility, but only if a specified procedure is followed. The statutory procedure provides a framework by which the court determines whether the evidence is (1) relevant to the issue of credibility and (2) not inadmissible under Evidence Code section 352. (Evid. Code,  782, subd. (a) & (a)(4).)

Defense counsel objected to the redactions, arguing the evidence was admissible under a state of mind exception to the hearsay rule that caused my client to . . . kick [Yolanda] out of her house. . . .  Its evidence that tends to explain the motive for the minor bringing this cruel accusation against my client which was brought three days after she was kicked out of the house. Defense counsel also argued Evidence Code section 782 did not apply because the proposed redactions did not relate to Yolandas prior sexual conduct. When asked by the court, defense counsel clarified he was not objecting to the admission into evidence of the entire November conversation, but solely to the redaction of Hawlishs statements about Yolandas alleged sexual conduct and drug use.[3] Thus, defense counsel stood in the posture of seeking to introduce into evidence (via his objections to the redactions) the statements the prosecution sought to redact. The court, after listening to the audiotape and reading the transcript of the November conversation, overruled defense counsels objections to the proposed redactions, finding the statements were hearsay and/or were inadmissible for failure to comply with Evidence Code section 782. On appeal Hawlish contends the court erred by overruling her counsels objections to the redactions.[4]

We review the trial courts rulings on the admissibility of evidence for abuse of discretion, especially where that determination [involves] the state of mind exception to the hearsay rule . . . . (People v. Ortiz (1995) 38 Cal.App.4th 377, 386.) Similarly, a trial courts ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.)

We address first the redactions involving Yolandas sexual contact. The redactions consisted of Hawlishs statements to Hougan opining Yolanda was having sex at 14 years old and sleeping with a 37-year-old man, and describing hickeys on Yolandas body and hickeys she gave a neighbor boy. Essentially, Hawlish sought the admission of this evidence (1) to buttress the defenses position that she and her husband ejected Yolanda from their home, and (2) to thereby cast doubt on Yolandas credibility by showing she had a motive to lie. Under Evidence Code section 782, subdivision (a), evidence of sexual conduct of the complaining witness is admissible to attack the credibility of the complaining witness if a prescribed procedure is followed. Because Hawlish did not comply with section Evidence Code section 782s procedural requirements, the trial court did not abuse its discretion in overruling her objections to the redactions involving Yolandas sexual conduct. Even had Hawlish complied with procedural requirements, and even if we were to accept her tenuous argument that her out-of-court statements were not offered for the truth of the matter stated, we would still not perceive any abuse of discretion in excluding the redacted material. California courts have not allowed [Evidence Code section 782] to result in an undermining of the legislative intent to limit public exposure of the victims prior sexual history. [Citations.] Thus, [Evidence Code section 782] has been utilized sparingly, most often in cases where the victims prior sexual history is one of prostitution. (People v. Chandler, supra, 56 Cal.App.4th at p. 708.) The court did not abuse its discretion in redacting Hawlishs out-of-court statements about Yolandas purported sexual activity.

The remaining redaction involved Hawlishs allegation Yolanda used drugs. Not only was Hawlishs statement to Detective Hougan hearsay, by its own terms it merely repeated another hearsay statement. Hawlish told the detective that the week before Yolanda left the Hawlish home, she hadnt gone to school for a week cause she was claiming that she was sick and had streph [sic] throat which thats not what I heard. I heard that she was tweaking and doing drugs and thats why she couldnt get up to go to school. (Italics added.) Yeah, but thats only hearsay . . . from what I heard from the kids.[5] Finding the statement was inadmissible hearsay, the court properly overruled defense counsels objection to the redaction.

On appeal Hawlish argues the statement was not hearsay because she did not seek its admission for the truth of the matter, but rather to show its possible effect on her state of mind.[6] According to her argument, her state of mind was relevant to the factual issue of whether she and her husband told Yolanda she would have to move out. The court found the statement, when read in context, was indeed offered for the truth of the matter asserted by the declarant and did not reflect the declarants state of mind, because it specifically addresses the victim. The trial court had broad discretion to make that finding. In any event, any error was harmless since the jury heard evidence of Yolandas alleged marijuana and alcohol use with a neighbor boy, and there is no reasonable probability that admission of the redacted statement (which would have been cumulative and of dubious reliability) would have resulted in a more favorable outcome for Hawlish. (People v. Watson (1956) 46 Cal.2d 818, 836.) [7]

Hawlish argues her trial counsels assistance was ineffective because he failed to cross-examine Yolanda about her prior sexual conduct.[8] To prove counsels assistance was ineffective, a defendant must show that counsels performance was deficient and the deficient performance prejudiced the defense (Stricklandv.Washington (1984) 466 U.S. 668, 687 (Strickland)) in that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Id. at p. 694.) The record reflects defense counsel cross-examined Yolanda about the alleged hickeys and the Hawlishs complaints regarding such conduct. In any case, since the same or similar evidence was elicited through Jeffrey Hawlishs testimony, there is no reasonable probability the result of the proceeding would have been different (ibid.) had Hawlishs trial counsel attempted to cross-examine Yolanda on all the subjects covered by the redactions.[9]

Finally, Hawlish contends the United States Supreme Court has recognized the right of an accused to present defense evidence even when the evidence may be technically [inadmissible] under the evidence code, citing Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers). In Chambers, the Supreme Court held under the facts and circumstances of [that] case, the application of two Mississippi evidentiary rules to exclude critical evidence denied the defendant a fair trial. (Id. at pp. 302-303.) The Chambers court, however, stressed that those two evidentiary rules had been criticized or condemned by scholars and rejected by the Federal Rules of Evidence newly proposed in 1972. (Chambers, at pp. 296, fn. 8 & 9, 299-300.) The court clarified that its holding did not signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. (Id. at pp. 302-303.)

In sum, the court properly exercised its discretion in overruling defense counsels objections to the redaction of Hawlishs statements about Yolandas alleged drug use and sexual conduct from the November conversation.

Defense Counsels Failure to Object to the Admission of Ty O.s Testimony Did Not Constitute Ineffective Assistance of Counsel

Hawlish contends her counsel rendered ineffective assistance by failing to object to Ty O.s testimony Hawlish enticed him to dance the hootchie dance with her, lured him to sit on her lap, and flirted with the boys on the water polo team. Hawlish argues the evidence of these uncharged offenses was not admissible pursuant to Evidence Code section 1101 for any purpose or under Evidence Code section 1108. Under Evidence Code section 1101, evidence of a persons character is admissible only to prove certain facts such as motive or opportunity. Evidence Code section 1108, subdivision (a) provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

We need not consider the first prong of Stricklands test for ineffective assistance of counsel. The second prong, i.e. whether the deficient performance prejudiced the defense, is easily answered. (Strickland, supra, 466 U.S. at p. 687.) Abundant evidence corroborated Yolandas allegations against Hawlish, including testimony of Hawlishs neighbors, Yolandas female friends, and Yolandas sister. There is no reasonable probability the result of the proceeding would have been different if Tys testimony had been excluded. (Id. at p. 694.)

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] Hawlish was attending a wedding in Florida at the time.

[2] To avoid confusion, we refer to Mr. Hawlish as Jeffrey. No disrespect is intended.

[3] The court noted this was probably a tactical decision by defense counsel to let his client testify by this tape. The court also noted the conversation was not an interview or an interrogation; Hawlish placed the telephone call to Hougan, spoke at length, and continued the conversation even after Hougan tried to end it.

[4] In the trial court, and again on appeal, neither party discussed, argued, or relied upon Evidence Code section 356, which provides in part: Where part of [a] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . . Accordingly, we will proceed, as do the parties, on the assumption that Evidence Code section 356 may safely be ignored, and we consider only those arguments actually made.

[5] Tweaking is a slang term to describe someone visibly under the influence of methamphetamine, sometimes pejoratively. (Wikipedia, The Free Encyclopedia (as of Mar. 8, 2007).)

[6] On appeal, Hawlish does not rely on Evidence Code section 1250s state of mind exception to the hearsay rule. Rather, she argues the statement is not hearsay because it was not offered for its truth. In the trial court, however, counsel argued Its my position that it goes to conduct that caused a state of mind exception to the hearsay rule that caused my client to do a certain thing with the minor, namely, kick her out of her house. Although inartfully phrased, it is apparent counsel was arguing the statements were not hearsay because they were not offered for their truth but merely to show only what information had been communicated to Hawlish which in turn motivated her to ask Yolanda to leave her home.

[7] An additional redaction involved Hawlishs statement she was told on November 21, 2003, the same day as her telephone conversation with Detective Hougan, by Mr. A., a counselor at Yolandas former high school, that Yolanda had previously been busted with crystal meth. Because Hawlish allegedly learned of this information after Yolanda had already left the Hawlish home, this statement was irrelevant to Hawlishs knowledge prior to Yolandas departure.

[8] She also contends her counsel failed to recognize that the redacted statements were nonhearsay; however, it is clear from the record that defense counsel recognized and argued the issue.

[9] Although Hawlish does not argue her trial counsels assistance was ineffective because he failed to follow the necessary procedure under Evidence Code section 782 for admission of her statements about Yolandas sexual conduct, we have considered the issue and note defense counsel may have reasonably concluded the redactions would not withstand the Evidence Code section 352 balancing required under Evidence Code section 782, given the materials inflammatory nature and its potential to confuse the jury as to the materials limited purpose. In light of the self-serving nature and dubious reliability of the redacted statements, there is no reasonable probability the result of the proceeding would have been different (Strickland, supra, 466 U.S. at p. 694.) had Hawlishs trial counsel sought to have the material admitted pursuant to Evidence Code section 782.