P. v. Fralick

Filed 8/8/07 P. v. Fralick 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

A jury found defendant Jeffrey Alan Fralick guilty of five counts of lewd acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a),^[1]and found true the allegation that three of the counts involved substantial sexual contact. ( 1203.066, subd. (a)(8).) The trial court sentenced him to an aggregate term of 14 years in state prison.

On appeal, defendant contends that (1) his rights under the Fifth and Fourteenth Amendments were violated when police induced him to confess through deception and promises of leniency, (2) trial counsels failure to move to exclude defendants statements resulted in ineffective assistance of counsel, (3) the trial courts exclusion of evidence of the victims prior sexual conduct with other females was an abuse of discretion, (4) exclusion of that evidence violated defendants right to due process, a fair trial and to confront his accusers, and (5) cumulative prejudice amounted to a violation of due process. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, a 27-year-old man, met S.K., a 13-year-old girl, on a telephone chat line. They talked on the phone some 35 to 50 times, many of their conversations revolving around sex.

When S.K. told defendant how old she was, he said, age is just a number and revealed that he was 27. Eventually, S.K. gave defendant her address and the two decided to meet in person.

Defendant drove to S.K.s house. When he arrived, S.K. was home alone, talking on the phone. They kissed and moved into the living room, where defendant sat on the couch and S.K. sat on his lap facing him. As they continued to kiss, defendant touched S.K.s breasts with his hands. He pulled down his pants and forced S.K.s head toward his penis. She got up to get a condom, but defendant pulled her back to him, instructing her where to place her hands and tongue as she orally copulated him.

Next, S.K. pulled her pants down and sat on defendants lap and they began to have intercourse. When S.K. told defendant to stop because it hurt, he said, Oh baby, dont worry, its just gonna hurt for a second and continued until he ejaculated.^[2] S.K. saw that she was bleeding and wiped herself off with some tissue. Defendant also used some tissue to wipe blood off of his penis.

Defendant pulled up his pants and S.K. sat down on his lap and the two began to kiss again. He told S.K., I want to do you from the back, but S.K. refused. Defendant took her shorts off, laid her down on the couch and told her to spread her legs. Defendant took off his shorts and underwear and had intercourse with S.K. a second time until he ejaculated. S.K., who was still bleeding, wiped herself off with some tissue, as did defendant. They both put their clothes back on and defendant gave S.K. a little peck on the lips, telling her he was going to go before the neighbors get suspicious.

S.K. tried repeatedly to contact defendant by telephone, even leaving an angry message when she feared she might be pregnant, but got no response. Eventually, she disclosed to several friends that she had had sex with defendant, and discussed online the fact that she had lost her virginity. S.K. discussed the encounter with her counselor at La Familia a week later, but told her defendant was 18 years old. However, she also told a school counselor she had had sex with defendant, a 27-year-old man she met through a chat line, and feared she might be pregnant. The school counselor contacted the authorities. S.K. gave police a description of defendant, as well as his telephone number and a description of his vehicle.

Using the telephone number provided by S.K., Detective Dean Lawrie was able to locate defendant.^[3] Lawrie and District Attorney Investigator Tiffany Keller contacted defendant at his workplace to conduct an interview. Lawrie told defendant he was not under arrest and was free to leave at any time.

During the interview, defendant admitted he went to S.K.s house, but denied going inside or having any contact with S.K. whatsoever, telling Lawrie S.K. told him she was 19, but once he got there he realized she was a little, short, little girl a little fat little Asian girl who he thought was 15 or 16 years old. Defendant persisted in his denials, even as Lawrie recounted S.K.s version of the story, including the fact that they had had intercourse twice, both times being consensual.

Lawrie then told defendant that S.K.s neighbors had seen his truck there and that defendants DNA had been found in the house and on S.K., none of which was true. Defendant continued to deny any contact with S.K., but admitted having had between 35 and 50 conversations with her on the phone, some of which revolved around sex.

Lawrie exhorted defendant to tell his side of the story, and added that, if the fact is that she [S.K.] told you she was older than she was, then that we can help you know, explain part of that and go from there. Defendant admitted going into S.K.s house, kissing her, and having her orally copulate him, but refused to give any additional details. Lawrie explained, Whatever you tell me, Im not gonna haul you away, okay? Ive just gotta do my part in the investigation. He continued to press for details, asking defendant again if S.K. had orally copulated him. Defendant nodded his head affirmatively, eventually telling Lawrie S.K. was all over him, hugging on me, grabbing on me, kissing on me, but denying S.K.s story that he took his pants off, stating that he only pulled them down around his ankles.

Lawrie reminded defendant that the neighbors saw him go into the house and that they had defendants license plate, and told him, Im here to see your side of the story, or hear your side of the story. Defendant admitted having sexual intercourse with S.K. twice, corroborating many, but correcting some, of the facts as reported by S.K. He also explained to Lawrie that S.K. could not be pregnant due to his low sperm count and the fact that S.K. told him she had just finished her period, which explained the blood on the tissue.

At the conclusion of the interview, defendant consented to a search of his truck and then left.

A crime scene investigators search of the couch and surrounding carpet in S.K.s living room found no biological fluids and no evidence of a sexual assault.

Defendant was charged by amended information with five counts of lewd acts with a child under the age of 14: mouth-to-mouth contact (Count 1), touching S.K.s chest (Count 2), oral copulation by S.K. (Count 3), and two acts of sexual intercourse (Counts 4 and 5). Counts 3, 4 and 5 each included a special allegation of substantial sexual contact.

After the jury convicted defendant on all charges and found the special allegations true, the trial court sentenced defendant to an aggregate term of 14 years in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I

Defendant first contends that the statements and admissions made during his pre-arrest interview with Lawrie were the result of deception and promises of leniency and therefore violated his right to remain silent under the Fifth Amendment and his right to due process under the Fourteenth Amendment. In the alternative, defendant argues that trial counsels failure to move to exclude those statements constituted ineffective assistance of counsel.

A. Forfeiture of Claim

The People argue defendant forfeited his right to challenge the admissibility of his statements by failing to object at trial, but that, in any event, his statements were voluntary and his counsel was not ineffective.

Section 1259, provides in part: Upon an appeal taken by defendant, the appellate court may . . . review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. (Italics added.)

It is a well established rule in this state that a criminal defendants right to raise an issue on appeal is forfeited by the failure to have made a timely objection in the trial court. (In re Seaton (2004) 34 Cal.4th 193, 198; People v. Barnum (2003) 29 Cal.4th 1210, 1224; People v. Vera (1997) 15 Cal.4th 269, 275-276; People v. Lucas (1995) 12 Cal.4th 415, 476-477; People v. Scott (1994) 9 Cal.4th 331, 352-353; People v. Saunders (1993) 5 Cal.4th 580, 590; People v. Welch (1993) 5 Cal.4th 228, 234-235.) This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. (In re Seaton, supra, 34 Cal.4th at p. 198; People v. Barnum, supra, 29 Cal.4th at p. 1224; People v. Saunders, supra, 5 Cal.4th at p. 590.)

Defendant argues that, under People v. Underwood (1964) 61 Cal.2d 113 (Underwood), review of the admissibility of [involuntary] statements based on the evidence that is not in conflict is permitted despite the lack of a timely objection. However, because the evidence that defendants pre-arrest statements were involuntary is in conflict here, the narrow exception laid out in Underwood does not apply.

The uncontradicted evidence in Underwood was evidence that the prior statements of defendant and one of the witnesses were coerced. (Underwood, supra, 61 Cal.2d at pp. 124-126.) There, both the defendant and the witness testified at trial. The witness testified that his statements were coerced because he was intoxicated when he was interrogated by the police, he was in custody as a suspect, and he was subjected to repeated threats by police that he would receive 20 years for each count and was going to get the gas chamber. (Id. at p. 124.) The defendant testified that his statements to the police were the result of forced sleep deprivation, a piercing headache from lack of sleep and physical abuse at the hands of the victims family members, and threats by the police that he would go to the gas chamber if he did not make a confession consistent with the victims complaint. (Id. at pp. 119-120.) No evidence was introduced by the prosecution to contradict those claims. (Id. at p. 124.)

Here, defendant neither testified nor offered any evidence at trial to suggest his confessions were coerced. Indeed, his trial counsel expressly waived any objection to the admissibility of his statements when she conceded that the statement was a noncustodial statement, and told the court, Im not seeking to do anything with that. Furthermore, the prosecution elicited testimony from the investigating officer to demonstrate defendants statements were voluntary--e.g., Lawrie testified that he and Keller were dressed in plain clothes, that defendant was told he was not under arrest and was free to go at any time, that he told defendant he wanted to get his side of the story, that neither of the investigators made any type of threats towards defendant or tried to coerce him to make certain statements, and that his demeanor towards defendant during the interview was as low key as possible. We do not find defendants allegation of coercion to be uncontradicted, and thus do not find Underwood to be applicable here. Consequently, defendants failure to object at trial forfeits his claim on appeal. (In re Seaton, supra, 34 Cal.4th at p. 198.)

In any event, defendants contention fails on the merits. Defendant claims his statements to Lawrie were involuntary because they were induced by a coercive process of escalating lies, promises, and threats. We disagree.

A statement is involuntary if it is not the product of a rational intellect and free will. [Citation.] The test for determining whether a confession is voluntary is whether the defendants will was overborne at the time he confessed. [Citation.] The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were such as to overbear petitioners will to resist and bring about confessions not freely self-determined. [Citation.] [Citation.] In determining whether or not an accuseds will was overborne, an examination must be made of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation. [Citation.] [Citation.] [Citation.] [] A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it does not itself compel a finding that a resulting confession is involuntary. [Citation.] The statement and the inducement must be causally linked. [Citation.] (People v. Maury (2003) 30 Cal.4th 342, 404-405.)

Police trickery that occurs in the process of a criminal interrogation does not, by itself, render a confession involuntary and violate the state or federal due process clause. [Citation.] Why? Because subterfuge is not necessarily coercive in nature. [Citation.] And unless the police engage in conduct which coerces a suspect into confessing, no finding of involuntariness can be made. [Citations.] [] So long as a police officers misrepresentations or omissions are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence. [Citations.] Police officers are thus at liberty to utilize deceptive stratagems to trick a guilty person into confessing. (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.)

Here, the interview was conducted in a conference room at defendants place of employment. He was informed at the outset that he was a suspect in a case and the subject of a complaint, but that he was not under arrest and was free to leave at any point in time. Lawrie told defendant numerous times he was there to get his side of the story. Defendant immediately admitted knowing S.K. and going to her house. When Lawrie asked, How it all started, defendant said he met S.K. talking on a chat line and spoke with her only three times. He repeatedly denied ever going inside her house or having sex with her and explained that he left because she lied to me and told me she was older. Those denials continued even in the face of the false statements made by Lawrie that defendants truck was seen by the neighbors and his DNA was found at the scene and on the victim. It was not until Lawrie told defendant he could access the chat line phone records to confirm the number of times defendant and S.K. spoke that defendant began to change his story, admitting to between 35 and 50 conversations.

While defendant continued to deny being in the house or having sex with S.K., Lawrie related the facts according to S.K. and asked defendant if they were true. He told defendant, Id like to really hear your side of the story and find out really what happened. And if the fact is that she told you she was older than she was, then that -- we can help -- you know, explain part of that and go from there. When Lawrie indicated he knew more than defendant was telling him and again encouraged him to tell his side of the story, defendant admitted going into the house and mess[ing] around with S.K., but would not elaborate. When Lawrie asked if S.K. orally copulated him, defendant said, Uh-huh, but refused to discuss it in detail. Given those admissions, Lawrie encouraged defendant to tell his side of the story, telling him, Im not here to arrest you. Whatever you tell me, Im not gonna haul you away, okay? Ive just gotta do my part of the investigation. When Lawrie told him S.K. told police the sex was consensual, defendant said, Yeah, she was all over me and admitted (by nodding his head affirmatively) that she orally copulated him. He also admitted having sexual intercourse, but corrected some of the details as reported by S.K.

At the conclusion of the interview, defendant was given an opportunity to ask questions and provide any additional information that might be relevant, and was also given Lawries telephone number in the event he had questions in the future. Defendant was free to leave, and did so.

It is not uncommon for police to use false information to prompt one who is guilty into confessing. (See, e.g., People v. Jones (1998) 17 Cal.4th 279, 299 [officer implied he could prove more than he actually could]; People v. Thompson (1990) 50 Cal.3d 134, 167 [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; People v. Parrison (1982) 137 Cal.App.3d 529, 537 [police falsely told suspect a gun residue test produced a positive result]; People v. Watkins (1970) 6 Cal.App.3d 119, 124-125 [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; and Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495 [suspect falsely told he had been identified by an eyewitness].)

Lawrie lied about the neighbors having seen defendant at the house, and lied about defendants DNA being found in the house and on S.K. We do not find that deception to be likely to produce a false confession. Defendant urges that the deception, together with Lawries promises not to arrest him and to help him if he told the truth, weakened his will and rendered his statements involuntary. We are not persuaded.

There was no promise that defendant would never be arrested. Lawrie said he was not there that day to arrest defendant and promised he would not haul [him] off as a result of anything he said during the interview. Indeed, Lawrie fulfilled that promise--defendant left the interview without being arrested.

Defendant contends the statement by Lawrie that we can help -- you know -- explain part of that and go from there was a promise of leniency. Not so. The statement suggested that Lawrie would help defendant explain what amounted to a partial defense to the charges--i.e., that defendant was misled by S.K. about her age--if that was defendants story. That being a potentially viable defense, at least in part, to the charges against defendant (see People v. Atchison (1978) 22 Cal.3d 181; People v. Hernandez (1964) 61 Cal.2d 529), the statement by Lawrie cannot be characterized as a promise of leniency. We conclude that defendants statements were voluntary.

B. Ineffective Assistance of Counsel

In order to find that defendant suffered prejudicial ineffective assistance of counsel, defendant must show (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] (Strickland).)

In order to show trial counsels performance was deficient, defendant must show that counsel failed to act in a manner to be expected of [a] reasonably competent attorney[] acting as [a] diligent advocate[]. (People v. Pope (1979) 23 Cal.3d 412, 425.) If the record fails to show why counsel acted or failed to act as he did, the contention fails unless counsel failed to provide an explanation upon request or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Pope, supra, 23 Cal.3d at

p. 425.)

We accord great deference to counsels reasonable tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925; see also People v. Freeman (1994) 8 Cal.4th 450, 484.) Tactical errors are generally not deemed reversible, and counsels decision making must be evaluated in the context of the available facts. [Citation.] (Weaver, supra, 26 Cal.4th at p. 926.)

Here, the record shows that counsel elected not to object or move to exclude defendants statements made during his initial interview with Lawrie, conceding the statements were noncustodial. We can infer from that statement that counsel believed an objection would be futile. Given that defendant was told he was not under arrest and was free to leave, yet he stayed and voluntarily provided information to investigators, that belief was reasonable.

In any event, even if the statement had been excluded, we do not find that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].) S.K. identified defendant in a photo lineup and at trial, and testified in detail regarding numerous specific facts supporting the charges against him. She was subject to detailed cross-examination regarding that testimony. Given her account of the story, it is not reasonably probable the jury would have reached a different verdict in the absence of defendants confession. We reject defendants claim of ineffective assistance of counsel.

II

Exclusion of Victims Prior Sexual Contacts

At the beginning of trial, the trial court ruled that any evidence with respect to [the victims] female, female sexual conduct is inadmissible under Evidence Code section 782.

Defendant contends that the trial courts exclusion of evidence of S.K.s prior sexual contacts with other females was an abuse of discretion, and denied him his right to due process, a fair trial and the right to confront witnesses. We review the trial courts ruling excluding evidence of S.K.s prior sexual contacts with other females for abuse of discretion (People v. Chandler (1997) 56 Cal.App.4th. 703, 711), and find no error here.

While the record is silent regarding the specific prior acts to which defendant refers, generally speaking S.K.s prior contacts with other females is dissimilar to the charged crimes. (People v. Woodward (2004) 116 Cal.App.4th. 821, 831.) Specifically, oral copulation of defendant, a male, by S.K., a female (Count 3), and sexual intercourse between defendant and S.K. (Counts 4 and 5), are dissimilar to oral copulation or sexual intercourse between two females. While defendant suggests two females can simulate the act of male-female intercourse with the aid of a device resembling a penis, there was no evidence of such specific prior conduct by S.K. in the record and we will not speculate that the victims prior conduct included such behavior.

We also disagree with defendants suggestion that oral to genital contact between two females, while different from the charged offense, is sufficient for purposes of showing S.K. had a previous oral sex experience. We fail to see how such an experience, assuming one occurred in the first instance, would have enabled S.K. to describe her experience of oral copulation of defendant.

With regard to the charges of mouth-to-mouth and hand-on-breast contact, the People aptly note that evidence of prior contact of that nature, whether with a male or a female, would have little probative value in this case.

Defendant also argues that evidence of S.K.s past experience with digital penetration by a female would have tended to contradicted [sic] [S.K.s] testimony regarding the pain and blood caused by [defendant] and diminished her credibility. However, other than defense counsels statement, based on information and belief, that S.K. has had prior sexual experiences involving both digital penetration and oral copulation with multiple persons, there is no specific evidence in the record to support that general allegation. We do not find the trial courts exclusion of that evidence to be arbitrary, capricious or patently absurd, and thus find no abuse of discretion. (People v. Jordan (1986) 42 Cal.3d 308, 316.) We also conclude that the trial courts exclusion of potential evidence of S.K.s prior sexual contacts with other females under Evidence Code section 352 was a proper exercise of its discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time].) As such, the trial courts exclusion of that evidence did not violate defendants right to confrontation, due process or a fair trial.

III

Cumulative Prejudice

As a final contention, defendant urges that the cumulative prejudice resulting from admission of his involuntary confession and exclusion of evidence regarding S.K.s prior sexual contacts amounted to a violation of his due process rights.

Given our disposition of defendants contentions in parts I and II of this opinion, we reject this contention as well.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL, J.

BUTZ , J.

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^[1]Undesignated section references are to the Penal Code.

^[2]S.K. testified that she had not had sex with a man prior to this incident.

^[3]S.K. later identified defendant in a photo lineup.