Filed 5/16/17 P. v. Trusty CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

GARY LEE TRUSTY,

Defendant and Appellant.
C083322

(Super. Ct. No. 15F1018)




On July 27, 2016, a jury found defendant Gary Lee Trusty guilty of oral copulation with a child 10 years of age or younger and lewd or lascivious acts with a child under 14 years of age. On appeal, defendant contends: (1) the jury instruction on propensity evidence created a presumption in favor of guilt in violation of his due process rights; and (2) defense counsel was ineffective for failing to move to strike testimony that defendant got kicked out of the First Southern Baptist Church. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s great niece, B, was born in October 2001. When B was seven or nine years old, she lived in a trailer on defendant’s property in Anderson. Defendant took care of a property known as “the Mansion,” where B and her family went to swim once or twice. After swimming one day, B’s aunt picked up B’s siblings to take them home. There was no room for B in the car, so she stayed behind and waited with defendant. B sat in defendant’s truck at his request. Defendant then asked B to pull down her pants. She pulled down her shorts and swimsuit. Defendant stood facing B and “sucked on [her] vagina” for about five minutes. He stopped when they could hear a car approaching and B pulled up her swimsuit and shorts.
Around the same time period, B and defendant were alone at his house. B was playing a video game in the spare bedroom. Defendant came in the room and asked B to pull her pants down. B pulled down her pants and underwear and defendant “sucked on [her] vagina” for about five minutes. She did not remember what made him stop. B did not understand what had occurred in either instance and did not know what oral sex was at the time.
A and C were sisters who lived in Anderson. A and C knew defendant through a church they attended. When A was 10 years old, she was at defendant’s house with C getting cans ready to take to a recycling center. While C was in the house playing with defendant’s cats, defendant told A he wanted to show her something. He took A to a trailer and had her sit on the bed. Defendant pulled down A’s pants. A tried pulling her pants up, but defendant pushed her down and pulled her pants down again. Defendant licked A’s vagina for a few minutes and stopped when she said she had to go to the bathroom. Defendant told A not to tell anyone.
While A was still 10 years old, A and C played hide-and-seek with defendant at a church when they were the only people there. A hid in the church’s front lobby. After defendant found A, he got on top of her and “dry humped” her for about five minutes. A did not know what defendant was doing and did not remember why he stopped.
C testified that, when she was eight years old, defendant picked her up to deliver Christmas baskets. After delivering the baskets, defendant took C back to his house. C was going to stay in defendant’s truck, but he told her to go inside and relax. C went into his living room and petted defendant’s cat. According to C, defendant walked in and started unbuttoning her pants while she was sitting on the couch. C testified that he kneeled on the floor, pulled down her underwear and pants, and started licking her vagina for a few seconds. She said she pushed and kicked defendant off of her, but defendant tried to continue. Defendant eventually stopped after being kicked in the groin.
Defendant was charged with multiple counts of oral copulation with a child 10 years of age or younger and lewd or lascivious acts with a child under 14 years of age as well as one count of forcible lewd act upon a child.
During trial, defense counsel asked A whether she had contact with defendant in the two-year period between when the church incident occurred and when A told her mom about it. A said she did not have contact with defendant because she stopped going to church. Defense counsel asked if it had been a couple of years since A stopped going to church, to which A responded “after [defendant] got kicked out of the First Baptist Church, he went to Hope -- went to Hope for a little bit and then I stopped going.” Thereafter, the following conversation ensued: “Q. Okay. And when was it? Was this after you told your mom? [¶] A. Um, I do not really remember the year, okay? [¶] Q. Okay. You said after he got kicked out of the church, what church would you be referring to? [¶] A. The First Southern Baptist Church. [¶] Q. Was that the church that you had been going to with Gary, [C] and yourself and Mark? [¶] A. Yes. [¶] Q. And so you’re saying that he got kicked out of it; is that what you just said? [¶] A. Yeah. [¶] Q. And yet you don’t know when this was; is that correct? [¶] A. Yeah.”
During her closing argument, defense counsel stated that the details matter. She argued that “[i]n fact, none of the witnesses [who] testified had a good memory about anything at all.” She asked the jury to pay attention to the details and pointed out that nobody really knows when any of the incidents happened “because nobody reported it when they say that it actually happened so we have no way of being able to verify it.” Defense counsel ended her closing argument by asking the jury to go back and “go over the details, time frames, time lines, [and] inconsistencies.”
The trial court instructed the jury “[d]o not assume just because I give a particular instruction that I am suggesting anything about the facts.” The jury was also instructed that “[a] defendant in a criminal case is presumed to be innocent” and the prosecutor must prove a defendant guilty beyond a reasonable doubt to overcome this presumption. The instructions defined proof beyond a reasonable doubt as “proof that leaves you with an abiding conviction that the charge is true.” The trial court also provided a modified version of CALCRIM No. 1191 that instructed the jury as follows: “The People presented evidence that the defendant committed the crimes of oral copulation with a child ten years of age or younger as charged in Counts 1, 2, and 7, lewd or lascivious acts upon a child under fourteen years as charged in Counts 3, 4, 6, and 8, and forcible lewd act upon a child under 14 years of age as charged in Count 5. These crimes are defined for you in these instructions. [¶] If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit the other charged crimes, and based on that decision also conclude that the defendant was likely to and did commit the other offenses charged. If you conclude that the defendant committed a charged offense, that conclusion is only a factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt before you may consider one charge as proof of another charge.”
On July 27, 2016, a jury found appellant guilty of oral copulation with a child 10 years of age or younger and lewd or lascivious acts with a child under 14 years of age for the acts committed upon B and A. The jury found defendant not guilty of lewd or lascivious acts with a child under 14 years of age and forcible lewd act upon a child for the acts allegedly committed upon C. This timely appeal followed.
DISCUSSION
I
The Jury Instruction On Propensity Evidence Did Not Create A Presumption
In Favor Of Guilt In Violation Of Defendant’s Due Process Rights
Defendant contends the modified version of CALCRIM No. 1191 “created an impermissible burden shifting presumption in favor of guilt in violation of [defendant’s] due process rights.” According to defendant, the preamble of the instruction, which stated “[t]he people presented evidence that the defendant committed the crimes of . . . ,” suggested that the trial court believed in the merits of the prosecution’s evidence and “contained an implicit inference that the prosecution had proved the essential elements of the charged offenses thereby reducing the prosecution’s burden of proof.” We disagree.
Defendant’s argument relies on People v. Owens (1994) 27 Cal.App.4th 1155. In Owens, the defendant claimed the jury instruction was “impermissibly slanted toward the prosecution.” (Id. at p. 1158.) “The instruction stated, in part: ‘The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct . . .’ ” (Ibid.) The court in Owens agreed that “[i]nstructing the jury that the People have introduced evidence ‘tending to prove’ [the defendant’s] guilt carries the inference that the People have, in fact, established guilt.” (Ibid.) Despite this, the court held that “[i]n light of the entire body of instructions, it is not reasonably likely that [the instruction] misled the jury on the reasonable doubt standard.” (Id. at p. 1159.) This was because the jury was instructed that “ ‘[a] defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.’ ” (Ibid.) The jury was also instructed that “ ‘[i]f you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict him of any lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of such lesser crime[,]’ and that its instructions should not be construed as an expression of the court’s opinion on any of the facts.” (Ibid.)
We need not decide whether the preamble deemed inappropriate by defendant impermissibly shifted the prosecution’s burden of proof or relieved the jury from making findings on the relevant issues. Even assuming it did, as in Owens, when viewed in light of the entire body of instructions, it is not reasonably likely that the instruction suggested an inference of guilt or reduced the prosecution’s burden of proof. The allegedly improper instruction went on to state “[i]f you conclude that the defendant committed a charged offense, that conclusion is only a factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt before you may consider one charge as proof of another charge.” The instructions provided to the jury also included an instruction that stated “[d]o not assume just because I give a particular instruction that I am suggesting anything about the facts.” Another instruction defined “proof beyond a reasonable doubt” and stated “[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.” When viewed in context of the entire set of instructions provided to the jury, it was clear that the trial court was not inferring guilt. It was also clear that the prosecution must still have presented evidence establishing that defendant was guilty beyond a reasonable doubt in order to overcome defendant’s presumption of innocence. Accordingly, we cannot conclude that the prosecution’s burden of proof was impermissibly reduced in violation of defendant’s due process rights.
II
Defendant’s Trial Counsel Was Not Ineffective For Failing To Move To Strike
Testimony That Defendant Got Kicked Out Of The First Southern Baptist Church
Defendant contends he was deprived of his right to effective assistance of counsel due to defense counsel’s mishandling of evidence that he had been kicked out of the First Southern Baptist Church. Defendant asserts that defense counsel “should have moved to strike [A’s] testimony that [he] got kicked out of the First Southern Baptist Church and admonished the jury to disregard it, as from it the jurors could infer he had engaged in some form of inappropriate behavior from which they could further infer he had committed the charged acts, and should not have repeatedly mentioned that particular fact when questioning A.” We disagree.
To establish a claim of ineffective assistance of counsel, a defendant must prove (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and (2) the deficiency resulted in prejudice to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) “Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215.) An ineffective assistance of counsel claim fails if the defendant makes an insufficient showing on either one of these components. (Strickland, at p. 687 [80 L.Ed.2d at p. 693].)
“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694].) “ ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.] [¶] In the usual case, 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. Weaver (2001) 26 Cal.4th 876, 925-926.)
Here, defense counsel may have made a tactical decision in not moving to strike A’s testimony that defendant got kicked out of the First Southern Baptist Church. In her closing argument, defense counsel argued that the details matter and “none of the witnesses [who] testified had a good memory about anything at all.” Defense counsel asserted that nobody could know when any of the incidents involving defendant actually occurred. Defendant now argues that defense counsel should have moved to strike the portion of A’s testimony stating he was kicked out of the First Southern Baptist Church. If this portion had been stricken, so too would have been the two instances in which A testified she did not remember when this actually happened. This portion of A’s testimony supported defense counsel’s argument regarding the witnesses’ memory or lack thereof. Defense counsel may have repeatedly questioned A about this fact in order to emphasize the fact that A did not remember when it occurred. As such, defense counsel’s line of questioning and the decision not to move to strike this portion of A’s testimony were likely mere tactical decisions. On the record before us, we cannot conclude that defense counsel’s representation fell below an objective standard of reasonableness.
Moreover, no prejudice resulted to defendant. Despite C’s testimony that defendant pulled down her pants and licked her vagina as she tried pushing and kicking him away, the jury found defendant not guilty on the two charges for the acts claimed to have been committed upon C. If defense counsel’s alleged improprieties had truly resulted in a “character assassination” as defendant now suggests, it is highly unlikely that the jury would have found defendant not guilty on any of the charges. Additionally, the fact that defendant was kicked out of a church is wholly unrelated to the charged conduct. It is not reasonably probable that, but for defense counsel’s alleged errors, a different result would have transpired. Accordingly, defendant’s claim of ineffective assistance of counsel is without merit.
DISPOSITION
The judgment is affirmed.



/s/
Robie, Acting P. J.

We concur:



/s/
Butz, J.



/s/
Hoch, J.