P. v. Ghobadi

Filed 9/11/07 P. v. Ghobadi CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

The trial court convicted defendant Shahpor Ghobadi of eight counts of aggravated sexual assault upon a child. (Pen. Code, 269.)[1] On appeal, defendant contends that (1) no substantial evidence supports the convictions for counts 2, and 5 through 8, (2) the trial court erred by sustaining the Peoples objection to certain evidence, and (3) he received ineffective assistance of counsel as a result of several omissions. We disagree and affirm the judgment.

background

Defendant and his wife immigrated to the United States. They initially moved in with the wifes parents and 11-year-old sister who had come from Iran several years previously. Defendant was approximately 20 years older than the sister and, as the second male in the family, he became an authority figure to her. He began molesting her one morning as she slept in her bedroom while no one else was home. He turned her shoulders so that she faced him and took off her pajamas. He got on top of her with his pants off and rubbed his penis against her vagina. The sister asked, What are you doing, and demanded that defendant get off. Defendant told the sister that it was okay and to be quiet. The sister tried to get up but defendant pushed her down. After ejaculating, defendant explained that the sisters parents had asked him to be her sexual teacher because they were too embarrassed to talk to her about sex; he continued that the teaching was to remain a secret; he added that the parents did not want her to tell them that the two of them had talked about the teaching arrangement because they were too embarrassed; he assured that the arrangement was a normal Persian custom. The sister did not understand what had just happened or why it had happened. But she felt that she had to obey defendant. She did not tell anyone about the incident because she was afraid that she would get in trouble because this was supposed to be a secret.

On another day, defendant engaged the sister in an act of oral copulation on the living room couch of the parents apartment by taking her head in his hands and pushing it on his penis. After this first time (count 4) until the sister became 14 years old, there were three or four similar incidents (counts 5-6) and five or six incidents where defendant would put his mouth or tongue on the sisters vagina (counts 7-8).

On another day when the sister was 13 years old, defendant entered the shower while the sister was showering, followed her down a hallway after she had exited the shower, grabbed her, put her on the floor, and orally copulated her (count 3). According to the sister, defendant then tried to penetrate me, and there was penetration but it was very short. As to this incident (count 2), the sister answered yes to the following question asked by the prosecutor: Then you said he put the head of his penis inside your vagina?

The sister was 21 years old when she reported defendants molestations of her to the police. As part of the police investigation, she made recorded telephone calls to defendant in which defendant incriminated himself.

Defendant testified and denied having sexual contact with the sister. He explained the recorded telephone calls as episodes where he was following the sisters lead and role playing so as to help the sister learn whether she had been molested by someone when she was a child.

SUBSTANTIAL EVIDENCE

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime present beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the jurys finding]. (Ibid., quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) Substantial evidence in this context means evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [ When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence--i.e., evidence that is credible and of solid value--from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. ].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)

Count 2--Rape

Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. ( 269.) Section 261, subdivision (a)(2), provides, [r]ape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [] . . . [] [w]here it is accomplished against a persons will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. Sexual penetration however slight is sufficient to complete the crime. ( 263.) 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 even if the rapist does not thereafter succeed in penetrating into the vagina. (People v. Karsai (1982) 131 Cal.App.3d 224, 232.) The external female genitalia include the exterior vaginal lips (labia majora), labia minora, and the clitoris. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.) Accordingly, any contact inside the exterior vaginal lips constitutes penetration for rape. ( 261; People v. Quintana, supra, 89 Cal.App.4th at pp. 1366, 1371.)

Defendant disagrees with Karsai and Quintana and argues that the penetration that is required for rape is vaginal penetration. (See People v. Geier (2007) 41 Cal.4th 555, 593 [sexual intercourse as used in CALJIC No. 10.00, which defines rape, has the common meaning of vaginal penetration].) He then urges that there is no substantial evidence of vaginal penetration because the sister testified that he tried to penetrate her.

Defendant, however, overlooks that the sister also testified that there was penetration and affirmed that the penetration was inside her vagina. Defendants contention therefore fails.

Counts 5 through 8--Oral Copulation

Section 269 also provides that a person commits aggravated sexual assault of a child via (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. Section 288a, subdivision (c)(2), prohibits oral copulation when the act is accomplished against the victims will by means of force, violence, duress, menace, or fear . . . .

Defendant argues that, as to the incidents charged in counts 5 through 8, there is no substantial evidence of duress, the element relied upon by the People to tie the acts to section 269. He points out that the sister provided no description of those incidents in contrast to the details given for count 4 (the couch incident) and count 3 (the shower incident) from which duress could be inferred. He principally relies on People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza). There is no merit to defendants contention.

Duress is defined as a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted. (People v. Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran ).) Physical control can create duress without constituting force. (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) [D]uress [also] involves psychological coercion. Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. . . . Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim [are] relevant to the existence of duress. (Espinoza, supra, 95 Cal.App.4th at pp. 1319-1320.) However, as this court made clear in Espinoza, duress can be established only if there is evidence that the victim[s] participation was impelled, at least partly, by an implied threat. (Id. at p. 1321.) Duress used in a prior molestation can be evidence supporting duress for later molestations. (People v. Senior (1992) 3 Cal.App.4th 765, 775-776.)

Here, defendant was a family member and authority figure; in the first incident,[2] defendant entered the sisters bedroom while no one but the sister was at home, physically imposed himself on the sister, took off her clothes, and physically prevented her from getting away; he then told the sister that the two had a sexual arrangement dictated by her parents that she must keep secret; and the sister feared getting into trouble if she revealed the secret. This shows physical and psychological coercion and is ample evidence of duress to support the later oral copulation incidents.

We disagree with the assertion in People v. Hecker (1990) 219 Cal.App.3d 1238, 1251, footnote 7, that an admonition against disclosing the molestation cannot support a finding of duress. As this court observed in an earlier case, young victims of child molestation are unlikely to perceive the subtle distinction between warnings enjoining nondisclosure and noncompliance: A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition. (People v. Senior, supra, 3 Cal.App.4th at p. 775.)

This case bears some similarity to Cochran, supra, 103 Cal.App.4th 8. In that case, the nine-year-old victim testified that she was not scared of the defendant, her father, but the court nevertheless found that the circumstances evidenced duress. (Id. at pp. 15-16.) In finding sufficient evidence of duress, the Cochran court noted that the defendant outweighed the victim by over 100 pounds, the sexual acts occurred in the family home, the defendant told her not to tell anyone because he would get into trouble and go to jail, and the evidence showed that the victim was reluctant to engage in the activities, but did so to comply with her father and avoid breaking up the family.

This courts opinion in Espinoza, supra, 95 Cal.App.4th 1287, on the other hand, is distinguishable. In Espinoza, the victim was the defendants 12-year-old daughter. On several occasions during a one to two week period, defendant came into the victims bedroom at night while her sisters were asleep in the other room. The defendant sat on the edge of her bed and fondled her and on the last occasion attempted to rape her before she moved to prevent him. The victim reported that she was scared, and, on one occasion, defendant asked her whether she still loved him, said [p]lease love me and may have cried. (Id. at pp. 1292-1295.) We concluded that there was no evidence that the defendants lewd acts were accompanied by a direct or implied threat of any kind. We explained: The only way that we could say that defendants lewd act on L. and attempt at intercourse with L. were accomplished by duress is if the mere fact that he was L.s father and larger than her combined with her fear and limited intellectual level were sufficient to establish that the acts were accomplished by duress. . . . Duress cannot be established unless there is evidence that the victim[s] participation was impelled, at least partly, by an implied threat. (Id. at p. 1321.)

Espinoza is similar to the present case in that both defendants held positions of trust and authority in the victims lives. But there are two important differences. Not only does the instant case present evidence of a threat (physical and psychological coercion), the essential element missing in Espinoza, but the surrounding circumstances in Espinoza were significantly less coercive than in the present case. In Espinoza, the victims sisters were in the bedroom next door and, the defendant behaved as if he were crying and asked the victim if she still loved him while he was molesting her. The defendants demeanor itself was evidence that he did not use duress to coerce his victims acquiescence. (Espinoza, supra, 95 Cal.App.4th 1287.)

The absence of a threat also distinguishes People v. Hecker, supra, 219 Cal.App.3d 1238, 1250, in which the court found no evidence that the defendant had ever threatened the 12-year-old victim, who said that she was never afraid that defendant would hurt her.

evidentiary objection

The record concerning this contention is less than clear. As best we can surmise, the supposed background is as follows: when the sister was 18 years old, she told her boyfriend that defendant had molested her when she was a child; the boyfriend then told this fact to the sisters mother who confronted defendant with the accusation; defendant responded by seeking out the sister the next day; and when defendant confronted the sister, she admitted that she had lied to her boyfriend.

Defendant sought to testify that the sister had admitted to him that she had lied to her boyfriend about being molested as a child by defendant. The People objected on the ground of relevancy and vagueness. Defendant explained that the sisters admission constituted a prior inconsistent statement in the sense that it impeached her trial accusations. The People replied that the sister did not testify about a conversation that she had with defendant about what she had told her boyfriend when she was 18 years old.

Defendant contends that the trial court erred by sustaining the Peoples objection and that the error transgressed his constitutional right to present a defense. There is no merit to this claim.

The trial court is vested with wide discretion in determining the admissibility of evidence. (People v. Karis (1988) 46 Cal.3d 612, 637.) We therefore review a trial courts evidentiary rulings for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.) And the following related principle also applies when the exclusion of evidence is challenged on appeal: If the exclusion is proper upon any theory of law applicable to the instant case, the exclusion must be sustained regardless of the particular considerations which may have motivated the trial court to its decision. (Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.)

Here, even if the trial court had agreed with defendant that the lying statement was admissible as a prior inconsistent statement, the trial court could have nevertheless reasoned that the statement was inadmissible because defendant did not lay the appropriate foundation for admission of the statement. Under Evidence Code section 770, a prior inconsistent statement is inadmissible unless the witness was examined about the statement and given an opportunity to explain or deny making the statement or has not been excused from testifying and is recalled to explain or deny making the statement. Here, defendant neither examined the sister about the statement nor requested the sisters recall.

We reject defendants contention that the exclusion of the lying statement deprived him of his state and federal constitutional rights to present a defense. The application of the ordinary rules of evidence to exclude defense evidence does not infringe on the right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The Sixth and Fourteenth Amendments guarantee a state criminal defendant a meaningful opportunity to present a complete defense. (Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) However, the right to present relevant testimony is not without limitation, and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. (Michigan v. Lucas (1991) 500 U.S. 145, 149.) Erroneous evidentiary rulings can in a particular case in combination rise to a level of a due process violation. (Montana v. Egelhoff (1996) 518 U.S. 37, 53.) But a defendant is not denied his right to present a defense whenever critical evidence favorable to him is excluded. (Ibid.) Accordingly, the application of the rules of evidence does not violate a defendants right to present a defense, and although the complete exclusion of evidence establishing a defense could theoretically rise to the level of a constitutional violation, the exclusion of defense evidence on a minor point does not. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)

Here, defendant had ample opportunity to challenge the sisters accusatory testimony via his cross-examination, evidence, and argument. The trial courts task was simply to accept or reject the sisters testimony. As a practical matter, however, the trial court could not reject the sisters accusatory testimony without accepting defendants exonerating testimony. In this context, the excluded lying statement is corroborative of defendants exonerating testimony rather than independent justification to reject the sisters accusatory testimony. As such, it stands on the same footing as defendants exonerating testimony, i.e., to be rejected as self-serving if the sisters accusatory testimony is accepted and defendants exonerating testimony is rejected or to be accepted if the sisters accusatory testimony is rejected and defendants exonerating testimony is accepted. The statement was therefore not critical to the defense and exclusion of it did not deny defendant his rights to due process or to present a defense.

ineffective assistance of counsel

Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right entitles the defendant not to some bare assistance but rather to effective assistance. (Ibid.)

To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696.) When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. If the record sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, [citation], the contention must be rejected. (People v. Samayoa (1997) 15 Cal.4th 795, 845.)

Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsels perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, [a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Kelly (1992) 1 Cal.4th 495, 540.)

An appellate court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Therefore, if the defendant does not show that he or she was prejudiced by the purported deficient performance of counsel, the claim can be rejected without deciding whether counsels performance was actually deficient under the Strickland standard. As to the prejudice prong, [t]he United States Supreme Court [has] explained that this second prong of the Strickland test is not solely one of outcome determination. Instead, the question is whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Harris (1993) 5 Cal.4th 813, 833.) A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

Defendant contends that defense counsel was constitutionally ineffective in four ways as follows.

First, counsel failed to adequately question the sisters mother about a conversation she had with defendant and the sister in 2004.[3] Second, counsel failed to question the sister about the lying statement. Third, counsel failed to ask the trial court to recall the sister so he could question her about the lying conversation. And fourth, counsel failed to make the point to the trial court that a ruling sustaining the Peoples objection to the lying evidence would deprive him of due process and the right to present a defense.[4]

The short answer to these claims is that defendant fails to make any argument demonstrating prejudice. Defendant devotes one brief, conclusory paragraph to the subject. He asserts: Counsels omissions deprived [defendant] of a fair trial and therefore of due process of law. Therefore, reversal is required unless [the People] can prove beyond a reasonable doubt that counsels errors did not contribute to the verdicts. (Chapman v. California (1967) 386 U.S. 18, 24.) Based on the fact that the counsels errors significantly undermined [defendants] defense, reversal is required even if this court applies the Strickland v. Washington, supra, 466 U.S. 668 standard because [defendant] has demonstrated that counsels performance fell below an objective standard of reasonableness and that his omissions created a probability of prejudice sufficient to undermine confidence in the outcome of [defendants] trial.[5]

The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 594, p. 627.)

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] The first incident was not alleged as one of the counts.

[3] Defendant fails to explain the inadequacy. He apparently sought to develop that the sister had a motive to fabricate her accusations because defendant had told the mother that the sister was continuing to see the boyfriend after the boyfriend had married someone else. But this evidence was admitted and defendant argued the point.

[4] These final three derelictions relate to the issue we previously addressed. In short, the lying conversation was unimportant--it was corroborative of the defense and, thus, either not believable if the sister was otherwise believable or unnecessary if defendant was believable. Defense counsel could have reasoned the same and therefore elected against questioning, asking for a recall, or making a constitutional point.

[5] The paragraph also misstates the law in suggesting that the People have a burden to disprove prejudice from ineffective assistance of counsel.