Filed 9/25/18 P. v. Sandstrom CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed.

David Lynn Sandstrom, in pro. per.; Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant is serving a determinate term of 12 years, to be followed by an indeterminate term of 15 years to life. Defendant was convicted of four crimes after using a weekend ski trip to sexually abuse the six-year-old daughter of a couple with whom defendant and his wife had shared a 20-year friendship.

Facts and Procedure

John and Mary Doe[1] had been friends with defendant and his wife Carol for 20 years and were part of an extended group of friends. Defendant and Carol did not have children. John and Mary had two children, a daughter Jane born in 2007 and a son born in 1999. Jane enjoyed hanging out with defendant and Carol. Jane thought defendant was fun and considered him a friend. John and Mary thought it was great that Jane and defendant had so much fun together. In their view, defendant was like a “big goofy older brother” to Jane.

In the summer of 2013 or 2014,[2] Mary, Jane, her brother, defendant, and two other kids took a trip to a local amusement park. Jane did not want to leave when the others left, so she and defendant stayed in the park later and defendant drove Jane home. After Jane had returned home, she told John that defendant had let her sit on his lap and drive his car. John was not upset about this but mentioned to defendant the next time he saw him that it had been a bad idea to let Jane drive a car. Mary testified that Jane told her about this maybe a few days after it happened, and that she did not really believe defendant had taught Jane to drive. The next time Mary saw defendant, she spoke to him about allowing a child to drive a car.

Two years later, in August of 2015, John was driving Jane and her brother in his car. He mentioned that he was tired and wished he didn’t have to drive all the way home. Jane reminded John that she could drive home because defendant had taught her to drive. Jane then added that defendant had said he would teach her to drive only if she took off her shirt and let him take pictures of her. John told Jane they would discuss it later when they got home. John told Mary what Jane had told him, and they spoke with Jane together. Jane told them defendant had showed her pictures of naked ladies on his phone. Jane also told them that one time when they were all together at a cabin in Big Bear, Jane had gone by or into defendant’s room when he was partially clothed. Jane thought it was a game at the time. She said defendant had showed her his penis, picked her up and put her on the bed, touched her private area and had her touch his. After Jane made these initial revelations, John and Mary made a point of not asking Jane a lot of questions because they did not want it to appear that they had “coached” her.

John and Mary made an appointment with a psychologist, who determined after speaking with Jane that they should report the incidents to law enforcement. They called the Los Angeles Police Department and made an appointment with a detective. After speaking with Jane and Mary separately, the detective determined the San Bernardino County Sheriff’s Department should investigate the Big Bear incidents. During this investigation, Jane underwent a forensic interview with the Children’s Assessment Center that was videotaped and later played for the jury. Jane was clear during the interview that at the cabin, defendant touched her inside her private area the first time, but “just touched it from the outside” a second time. Jane told the interviewer that the first time she went to defendant’s room in the morning, and the second time he went to her room. As is relevant to the issues defendant raises in his supplemental brief, Jane told the interviewer that during the amusement park incident defendant took pictures of her boobs and vagina, showed them to her and then masturbated in front of her. However, she did not tell the interviewer that she and defendant touched each other.

In November 2015, a San Bernardino County Sheriff’s Department detective arranged for, and assisted Mary in making, a pretext call to defendant in the detective’s presence. The call was recorded and later played for the jury. During the 40-minute call, defendant often denied having abused Jane at all, but in between the denials did admit the following: “In the cabin, she laid down on the bed and I touched her—I can’t believe that I would do that.” “[I]f I touched her, I never, I never, ever—there’s no way I would penetrated. I’m sorry, not with a finger, not with a tool, not with anything, . . .” “[Mary]: “So maybe you touched her vagina, but you didn’t penetrate. Is that what you’re saying? I mean . . . . [Defendant]: That’s what I’m saying.” “She was flashing me and I kissed her on the cheek, and she flashed me again, and I kissed her on her side, on her hip.” “This whole thing lasted two or three minutes and then I went and talked to Carol about it, and Carol and I decided that no more do I get to take them to [an amusement park] and stuff.” “It was like dinner time. Cause I went downstairs to change and came right back up. We were, this whole thing was two or three minutes.” “She pulled her pants all the way down, and I didn’t pull em back up, I said, ‘You need to pull those up.’ That’s all I said. Oh. That’s when I—I tossed her on the bed. I picked her up and put her on the bed. So she was laying on the bed, you’re right, and her pants were down. And I kissed her on the side.” “I kissed her on the side of it on her hip . . . .” “[Mary]: If you didn’t touch her with your hand, what did you touch her with? [Defendant]: I had to have kissed her, which is probably worse.” “[A]nd she goes ‘Don’t look’ and pulled her pants down again, and I picked her up and I put her on the bed and I kissed her on the side of the hip . . . .” “I did not do it with my hand. It had to be with my mouth . . . .” “I promise you I never touched her vagina in the cabin. The most I would have done is kissed next to it.” “I’m thinking at the most, I would have probably put my thumb above it, but I never would have touched it.” “She wasn’t downstairs when I went downstairs. I went downstairs to change. She came back five minutes later.”

Regarding the incident after the amusement park, defendant said the following during the pretext call: “[Defendant]: And I said, ‘Take off your shirt and keep driving the car’ and I don’t know what I was thinking. [Mary]: And why did you pull your pants down? [Defendant]: Because I guess then I was aroused. I’m sorry. This is when I go to prison . . .I flashed her . . . . [¶] I showed her my thing. I did, you’re right.”

On May 25, 2017, the People filed a first amended information charging defendant in counts 1 and 3 of oral copulation or penetration with a child under age 10 (Pen. Code,[3] § 288.7, subd. (b)) and in counts 2, 4, 5, and 6 of committing a lewd act on a child under age 14 (§ 288, subd. (a)). Count 2 was an alternative charge to count 1. Count 4 was an alternative charge to count 3. Each of the counts was alleged to have taken place “on or about January 10, 2014 to January 12, 2014.” The crimes charged are limited to those alleged to have taken place in that time span at the cabin in Big Bear. The court allowed evidence regarding the earlier incident near the amusement park under Evidence Code section 1108.

Jane was six years old when each of the incidents occurred, eight when she disclosed them, and 10 when she testified at trial in June of 2017.

Jane testified at trial that, when she was with defendant in his car after they stayed late at the amusement park, defendant told her that before they could go home they had to touch each other’s private parts. Defendant told her he would not take her home until she pulled down her pants. Jane touched defendant’s private parts with her hand, and he touched her private parts with his hands. Defendant took pictures of Jane and showed her pictures of ladies’ boobs and private parts. Then defendant was “pulling his thing and then a bunch of yucky white stuff came out.” They pulled their pants back up, switched places so defendant was in the driver’s seat, then went to a fast food restaurant to get a treat. At the time, Jane did not think there was anything wrong with what she and defendant had done, because she trusted defendant. Jane was excited that she had learned to drive.

Jane testified on direct examination that one year in January her family had gone skiing with defendant and his wife and stayed in a cabin in Big Bear. Jane and defendant touched each other’s privates “in the mornings” in a downstairs bedroom while everyone else was upstairs. Jane stated this is something she and defendant had done before and described it as, “One of us would go into someone’s room. We’d ask if we wanted to do the thing, touch—touching each other’s things. We’d pull down our pajama pants or pants, and then we would touch each other’s.” Jane described this as having happened after the incident in defendant’s car near the amusement park, because when defendant asked at the cabin to do “the thing,” they both understood it was the same thing they had done in defendant’s car after the amusement park. The first time in the cabin, they stopped and went upstairs because they were called to breakfast. Jane stated that they did it again the next day. She testified that both times defendant initiated the touching, they touched each other in a downstairs bedroom after pulling down their pants, and they stopped because they were called up to breakfast. Jane was not sure what time of day either incident happened. Jane stated the only times she and defendant touched each other was after the amusement park and during the weekend at the cabin. On cross-examination, Jane testified that the first incident at the cabin happened in the downstairs bedroom she shared with her brother. She woke up when defendant came into her room in the morning and they did the thing. Jane’s brother was not in the room. On cross-examination Jane testified that the second time she went into defendant’s bedroom.

Mary testified at trial regarding the Big Bear incidents that defendant had to be at work with the ski patrol at 7:00 a.m. both mornings of the ski trip, and Mary did not remember having to call Jane upstairs to have breakfast.

The defense put on a witness who testified that defendant signed in to the ski patrol at 7:00 a.m. on January 11 and 12, 2014. Defendant’s wife, Carol, testified that she shared a bedroom downstairs with defendant on that weekend, and that Jane and her brother shared the other downstairs bedroom. Defendant got up earlier than Carol did on both days, about 4:30 or 5:00 a.m. and left to perform his ski patrol duties. On Saturday morning Carol went upstairs around 8:00 a.m. John, Jane and her brother had already left to ski for the day. That pattern repeated itself on Sunday morning, except Jane’s brother did not go skiing. On Saturday afternoon, defendant returned from the ski slopes after Jane and her family did. Defendant went downstairs to change. He then came upstairs and prepared dinner. Jane was upstairs when defendant came upstairs. Defendant’s wife did not recall whether Jane went downstairs while defendant was downstairs. On Sunday afternoon after skiing, defendant and his wife packed up and went home.

On June 7, 2017, the jury found defendant guilty of counts 1, 4, 5, and 6 and not guilty of counts 2 and 3.

On November 8, 2017, the court sentenced defendant to 12 years plus 15 years to life as follows: 15 years to life for count 1, plus the consecutive upper term of eight years for count 4, plus consecutive terms of two years each for counts 5 and 6.

This appeal followed.

Discussion

Upon defendant’s request, this court appointed counsel to represent him on appeal. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has done so. Defendant raises five issues for consideration. First, defendant argues the trial court violated his right to a speedy trial. Defendant waived time to May 17, 2017, plus the 10 days provided for by section 1382, subdivision (a)(2)(B). On May 17, the court set a trial recall hearing for May 18. On May 18, the court stated no courtrooms were available for jury trial, trailed the matter, and set a trial recall hearing for May 22. Again on May 22, no courtrooms were available, so the court trailed the matter and set a trial recall hearing for May 23. On May 23, the court set the matter for trial on May 31. Trial began on May 31, 2017. Defense counsel is authorized to waive a defendant’s speedy trial rights even over the objection of the defendant, as long as counsel acts in the defendant’s best interest. (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960.) Here, on May 23, defendant was not present in court, but his attorney did not object to the new trial date. Defendant here does not establish that counsel acted against defendant’s best interest in failing to object to the new trial date, and so this argument fails.

Defendant’s other four arguments are based on ineffective assistance of counsel. Defendant contends defense counsel misadvised him during plea negotiations that he did not face a life sentence, and defendant would have pled guilty had he known he was facing a life sentence if he went to trial. Because this issue requires review of matters outside the record, it is better raised on habeas corpus, and so we decline to address this issue. (People v. Bean (1988) 46 Cal.3d 919, 944.) The same problem exists with defendant’s contention that defense counsel pressured defendant not to testify on his own behalf, so we also decline to address that issue. However, we do point out that when the People rested their case, the court initiated a dialogue to make sure defendant knew that it was his choice whether to testify or not, and that no one could either stop him from testifying or force him to testify. Defendant stated in open court that he understood his rights and was not planning to testify.

Defendant’s other two issues based on ineffective assistance of counsel are reviewable on appeal. The first is counsel’s failure to impeach Jane’s trial testimony regarding the incident near the amusement park, during which she stated, perhaps for the first time, that she and defendant touched each other’s private parts on that occasion. Defendant contends counsel should have but did not introduce evidence that Jane had never mentioned the touching prior to trial. Defendant argues his counsel was ineffective for failing to introduce early police reports and the tape of Jane’s interview at the Children’s Assessment Center. Defendant also contends counsel was ineffective because counsel did not bring up this discrepancy during his cross examination of Jane.

The second ineffective assistance of counsel issue that is reviewable on appeal is the failure to call Jane’s brother as an alibi witness to testify that defendant was with him on Friday night playing video games and that defendant did not enter the room where the victim and her brother were sleeping on either Saturday or Sunday morning.

To demonstrate ineffective assistance of counsel, defendant must show both that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A reviewing court must afford great deference to trial counsel’s actions and must presume that the challenged actions constituted sound trial strategy. (Id. at p. 689.)

Here, even assuming counsel’s failure to act on these two points fell below an objective standard of reasonableness, defendant has not established that they affected the outcome of the trial. First, regarding the impeachment of Jane’s testimony that she and defendant touched each other after going to the amusement park, defendant was not charged in this incident. Rather, the evidence about this incident was introduced to show that defendant had a propensity to commit sex offenses. Defendant argues defense counsel missed a key opportunity to place doubt in the jury’s minds about Jane’s credibility. However, defendant does not establish that this would have changed the outcome of the trial, especially considering defendant’s numerous admissions during the pretext call. Second, any alibi testimony from Jane’s brother regarding the ski trip, to the extent it could have eliminated a portion of Friday evening and both Saturday and Sunday mornings as opportunities for defendant to have committed the crimes, would not have changed the outcome of the trial. This is because: (1) No evidence points to defendant having abused Jane on Friday night of the ski weekend; (2) other evidence already placed into doubt that the crimes took place on Saturday and Sunday mornings, i.e., testimony from defendant’s wife, evidence that defendant signed into his job with the ski patrol at 7:00 a.m. both days, and defendant’s statements during the pretext call that he abused Jane at “like dinner time”; and (3) defendant’s very incriminating statements during the pretext call. To conclude, defendant does not establish a reasonable probability that, even if he did receive substandard legal representation on these points, this affected the outcome of the trial.

An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.