Filed 12/14/18 P. v. Lyons CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found defendant Willie Lyons guilty of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)),[1] his 24-year-old stepdaughter, T.B. The trial court sentenced him to six years in prison. In this appeal, Lyons contends his trial counsel provided ineffective assistance by (1) objecting to a jury instruction on the lesser charge of attempted rape of an unconscious person, and (2) failing to challenge DNA evidence presented by the prosecution. We affirm.[2]

I. BACKGROUND

In August 2015, T.B. and her two children lived in a house with her mother and Lyons, her stepfather. Early on the morning of August 1, while T.B.’s mother was at work, T.B. was sleeping on a reclining couch in the living room with her children. T.B. was wearing loose shorts with nothing underneath. She woke up briefly when she felt “something on my side like reaching by my legs, like feeling for something.” She then woke up again when she felt “[s]omebody touching my bottom, like my butt.” She tried to go back to sleep and dozed off again, but then felt a penis touching her butt and then her vagina, “underneath [her] shorts,” from behind. T.B. felt that “he was trying to get his penis hard to insert in me.”

T.B. testified she “felt something like inside my vagina and the penis . . . was like caressing my vagina” “to like make it hard.” She felt the penis on her “lips,” but not “inside [her] vagina,” although his penis “reached [her] vaginal hole” by passing “just the outer lips.” T.B. testified she did not initially realize what was occurring. When she “felt his penis go up and down [her] vagina,” she realized what was happening, and she “woke up” and said “ ‘Are you trying to fuck me?’ ”

T.B. has blurry vision due to multiple sclerosis. She assumed the person touching her was Lyons because he was the only adult male in the household. She also had seen a male form walking around the kitchen when she had woken up earlier that night. After she accused the person of trying to fuck her, she turned around and looked at the man. He “got off the couch” and “went into his room,” and then came back out and walked out the front door.

When T.B.’s mother returned, she took T.B. to the hospital. Lyons’s sperm was identified on swabs taken from T.B.’s mons pubis, labia minora, and vestibule. The mons pubis is on the outside of the body and is an area where there typically is pubic hair. The labia minora and the vestibule are on the inside of the female genitalia, past the labia majora. The largest number of sperm were found on the labia minora.

The nurse who conducted the sexual assault examination of T.B. asked her a number of questions and asked her to reply “ ‘ “yes,” “no,” “attempted” or “not sure.” ’ ” When asked whether the perpetrator’s penis penetrated her vagina, T.B. replied, “ ‘attempted.’ ” The nurse did not discuss the legal definition of penetration with T.B.

When interviewed by police on September 15, 2015, T.B. stated the penis went past the outer lips of her vagina and touched the inner lips, but did not go inside the vaginal entrance.

II. DISCUSSION

A. Alleged Ineffective Assistance of Counsel as to the Attempted Rape Instruction

1. Additional Background

During a conference on jury instructions late in the trial, the court noted the evidence would support a verdict of attempted rape of an unconscious person and asked the parties for their views on whether it should instruct on that offense. The court stated that, applying the decision by Division One of this District in People v. Braslaw (2015) 233 Cal.App.4th 1239, attempted rape of an unconscious person is not a lesser included offense of rape of an unconscious person, so the court was not obligated to instruct on attempt absent a request. (See id. at pp. 1247–1249, 1252 [attempted rape of an intoxicated person (a specific intent crime) is not a lesser included offense of rape of an intoxicated person (a general intent crime)].)

Defense counsel opposed giving an attempt instruction.[3] Counsel stated she had crafted her opening statement based on the understanding that only a completed crime was charged, an issue that also was potentially relevant to the decision not to have Lyons testify. The court denied as untimely the prosecutor’s request to amend the information to charge attempted rape, either as part of the existing rape charge or as a separate count. The court concluded it could not give an attempt instruction without defense counsel’s consent. The court did, however, instruct on assault (§ 240) as a lesser included offense of the charged crime of rape of an unconscious person.

As to the charged offense, the court instructed the jury with CALCRIM No. 1003, incorporating a pinpoint modification requested by the prosecution as to the degree of penetration required to prove rape. The instruction as given (with the pinpoint wording italicized) stated: “The defendant is charged in Count 1 with raping a woman who was unconscious of the nature of the act in violation of Penal Code 261(a)(4). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual intercourse with a woman; [¶] 2. He and the woman were not married to each other at the time of the intercourse; [¶] 3. The woman was unable to resist because she was unconscious of the nature of the act; [¶] AND [¶] 4. The defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required. The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape. [¶] A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring.” (Italics added; see § 263 [slight penetration is sufficient]; People v. Karsai (1982) 131 Cal.App.3d 224, 232 [same], disapproved on other grounds by People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)

2. Analysis

To establish a claim of ineffective assistance of counsel, a defendant must show that (1) trial counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the defendant suffered prejudice, i.e., there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687­688, 694 (Strickland); People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694; Carter, supra, at p. 1211.) The defendant also must show that “ ‘the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.’ ” (People v. Gurule (2002) 28 Cal.4th 557, 610–611.)

Here, the record on appeal does not disclose that defense counsel’s decision to object to the giving of an attempt instruction lacked a tactical basis, and the decision is not of the type for which there could be no satisfactory explanation. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In light of the somewhat ambiguous testimony and statements by T.B. as to whether penetration occurred (evidence highlighted by Lyons on appeal in arguing there was doubt as to whether a completed rape occurred and substantial evidence that only an attempt occurred), defense counsel reasonably could have concluded that it would be best not to give the jury the option of convicting Lyons of attempted rape (a crime punishable by imprisonment for up to four years (§§ 264, subd. (a), 664, subd. (a))). Instead, counsel reasonably could have concluded it was in Lyons’s interest to give the jurors an all-or-nothing choice: if they found penetration did not occur, they would acquit Lyons or find him guilty only of simple assault (a misdemeanor punishable by a fine and/or six months in county jail (§§ 17, subd. (a), 241, subd. (a))).

We note that, consistent with this rationale for objecting to an attempt instruction, trial counsel contended in part in her closing argument that the prosecution had not proven that penetration occurred. Counsel contended T.B.’s own testimony supported a conclusion there was no penetration. Counsel also stated the position in which T.B. was lying (on her side on the couch, in a fetal position with her legs closed) would have made it difficult for penetration to occur. And counsel argued the presence of Lyons’s semen in “locations within the vagina” did not establish sexual penetration, because semen deposited on the outside of T.B.’s body could have been transferred into her body when she moved. Counsel stated: “[W]hat happened during those three or four hours between the time his penis was between her vagina and the time she actually went to a physical exam? Because semen isn’t a solid, it’s a liquid. . . . [S]emen moves. [¶] Did she change before she went to the exam? She certainly walked around. What happened? Did she go to the bathroom? What happened?” Although Lyons contends in his appellate reply brief that trial counsel did not present the no-penetration theory as well as she should have, this assertion does not persuade us that counsel lacked a reasonable, tactical basis for her approach or that her performance was constitutionally deficient.

B. Alleged Ineffective Assistance of Counsel as to DNA Evidence

As noted, Lyons’s trial counsel argued the presence of Lyons’s semen in T.B.’s mons pubis, labia minora and vestibule did not establish penetration, because semen is a liquid, and semen that was deposited on the outside of T.B.’s body could have been transferred into her body when she moved. Counsel did not cross-examine the prosecution’s DNA expert or present evidence about the possibility of such transfer. Lyons now argues trial counsel should have elicited such evidence from the prosecution’s DNA expert or from an expert of her own.

Lyons has not shown his counsel’s performance was deficient, i.e., objectively unreasonable under prevailing professional norms. (Strickland, supra, 466 U.S. at pp. 687-688; Carter, supra, 30 Cal.4th at p. 1211.) We are not persuaded counsel was obligated, as a tactical matter, to elevate the DNA transfer theory (a commonsense argument included among others she presented in closing) to a primary theme of the defense. And counsel reasonably could have concluded it was unnecessary to elicit expert testimony to support an argument about DNA transfer. Lyons acknowledges in his appellate brief that it “is common knowledge, or at least not reasonably subject to dispute, that sperm and semen are liquid, and [can] be transferred from one area to another.” As the Attorney General notes, Lyons’s trial counsel similarly could have concluded the jurors would be familiar with this subject and would not require expert assistance to understand her argument. (See Evid. Code, § 801 [limiting expert opinion testimony to subjects “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”].)

III. DISPOSITION

The judgment is affirmed.

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Streeter, Acting P.J.

We concur:

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Tucher, J.

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Lee, J.*