Filed 4/3/18 P. v. Wood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

STANTON TROY WOOD,

Defendant and Appellant.


C083301

(Super. Ct. No. 14F06522)





A jury found defendant Stanton Troy Wood guilty on three counts of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) The trial court sentenced him to an aggregate term of eight years in prison.
Defendant now contends his convictions must be reversed because trial counsel rendered ineffective assistance during closing argument. He claims he was prejudiced by counsel’s deficient performance in rejecting his theory that there was a conspiracy between his former girlfriend and the victim to set him up on false charges. Finding no merit in defendant’s contention, we will affirm the judgment.
BACKGROUND
The trial in this matter commenced in June 2016. At that time, the victim was almost 17 years old. She testified as follows: Defendant previously dated her mother. The victim met defendant when she was two years old. Defendant never married mother but they had two children together, E. and A. At the time of trial, E. was 11 and A. was seven. Defendant also has a son from a prior relationship named M., who is two and a half years older than the victim.
At the time of the incidents giving rise to the charges in this case, the victim had a “close” relationship with E., A., and M. She also had a “pretty close” relationship with mother. She loved defendant and felt like he loved her but she did not view him as a father figure.
The victim claimed defendant touched her in a sexually inappropriate way on four occasions. The first incident occurred in the summer of 2011 when she was 11 years old. The victim explained that she went to the river with defendant and M. While M. was swimming and jumping off rocks a couple of hundred feet away, defendant picked her up and placed her on his lap. As she was sitting on his lap, the victim felt defendant’s erect penis touching her buttocks. When she tried to get away, defendant held her hips and told her to stay. Less than five minutes later, the victim got off defendant’s lap. The victim explained that she did not feel defendant’s erection when she initially sat on his lap and did not remember the erection going away while she was on his lap.
The second incident occurred about a year later when the victim was 12 years old. She was in the kitchen of her house washing dishes when defendant came up from behind her and started caressing her stomach under her clothes. Defendant then put his hands on her breasts over her clothes and began rubbing them. When the victim told defendant to stop, he said, “I’m loving you.” The victim pushed defendant’s hands away but he immediately put them back on her breasts. According to the victim, this incident lasted less than five minutes. She noted that defendant did not touch any other part of her body. However, she could feel his stomach and crotch against her back and buttocks. She also noted that E. was standing in the doorway to the kitchen during the incident. The victim estimated that E. was standing there for “[l]ess than a minute, only seconds.”
The third incident occurred a couple of days later. The victim explained that she was standing by the refrigerator in her kitchen when defendant came up from behind her and started rubbing her stomach. He then placed his hands on her breasts over her clothes and started rubbing them. When she pushed defendant’s hands away and told him to stop, he said, “I’m loving you.” At some point, defendant placed both his hands on her buttocks over her clothes and began rubbing for a few minutes. Defendant stopped touching the victim shortly after M. came into the kitchen and defendant told him to leave. According to the victim, this incident lasted less than five minutes. She said defendant’s hands were on her breasts when M. came into the room.
Because the victim felt that defendant’s behavior was unusual and made her feel uncomfortable, she spoke with M. after this incident. During their conversation, the victim asked M. whether he thought defendant was acting weird, and whether she should talk to mother about his behavior. M. told the victim she should talk to mother but the victim did not take his advice.
The fourth incident occurred a few days later. The victim was lying on the couch in her living room when defendant came into the room and got onto the couch with her and started rubbing her stomach under her clothes. He then tickled her stomach with one hand while using his other hand to rub back and forth on the band of her underwear. Defendant eventually stopped touching the victim and left the room. According to the victim, this incident lasted about five minutes.
In the summer of 2014, about two years after the incidents in the kitchen and living room, mother and defendant got into a really big fight and Child Protective Services (CPS) became involved. Later that summer, the victim told mother that defendant had touched her inappropriately. Mother started crying and called the police.
At trial, the victim claimed no one had told her what to say or not to say, and no one pressured her into saying anything that was not true. She denied making up the allegations against defendant so mother could keep custody of E. and A. But the victim acknowledged she would be extremely upset if E. and A. did not live with her anymore.
The victim participated in two sheriff’s interviews. The interviews were videotaped and played for the jury. In the first interview, the victim claimed the incidents had occurred “last summer.” She also said the incident at the refrigerator occurred before the incident at the sink. The victim explained that, after she told mother about the touching, she and mother asked E. if he had ever seen defendant touch her. According to the victim, E. said he did not see any “breast grabbing”; rather, he only saw defendant caressing her stomach.
In the second interview, the victim talked about the incident at the river. Among other things, she said she was 12 years old at the time of the incident, and that the incident occurred at Folsom Lake.
In the summer of 2014, a CPS employee interviewed E. as part of a Special Assault Forensic Evaluation (SAFE) interview. The SAFE interview was videotaped and played for the jury.
During the interview, E. said he had seen defendant put his hands up the victim’s shirt one time. He said defendant was standing behind the victim while she was doing the dishes. E. explained he did not tell mother about this incident until after the victim made her allegations of abuse because he “didn’t want his dad to go.” He further explained that he disclosed what he saw after mother specifically asked him whether he had ever seen defendant’s hands up the victim’s shirt. E. did not report any other instances of inappropriate touching. However, at trial, E. testified that he told mother prior to the SAFE interview that he had seen defendant put his hands on the victim’s chest and in her pants. E. testified at trial that he saw defendant put his hands under the victim’s shirt and rub her chest area while the victim was doing the dishes. He also saw defendant put his hand into the victim’s pants in her private area.
M. testified he saw defendant hug the victim from behind while they were in the kitchen. He also heard defendant tell the victim he loved her. M. said defendant’s hands were around the victim’s shoulders. He described defendant’s behavior as normal, and stated that he had never seen defendant touch the victim in an inappropriate way.
Mother testified she did not initiate any child custody proceedings before the victim made her allegations of abuse against defendant. She said she only filed paperwork for child support. She said she never told the victim, E., or M. what to say or not to say regarding the victim’s allegations. She denied conspiring with the victim and E. to say certain things so that she could obtain sole custody of E. and A.
Defendant testified on his own behalf. He denied touching the victim’s breasts and denied putting his hands down her pants. He also denied that he was attracted to her, and denied ever telling her, “I’m loving you.” He explained that, like he did with his kids, he gave the victim hugs and kisses all the time and told her he loved her.
Defendant explained that the victim’s allegations of abuse were set forth in a request for a restraining order. He referred to the allegations as “fabricated.” He said he “knew something was coming” because mother had found out that he had filed a police report accusing her of domestic violence, and that he intended to seek custody of E. and A. Defendant noted that mother informed him she knew about the police report on the same day she called the police and reported the victim’s allegations of abuse.
DISCUSSION
Defendant’s sole contention on appeal is that trial counsel rendered ineffective assistance by rejecting his theory that there was a conspiracy between mother and the victim to set him up on false charges. He claims his trial counsel was prejudicially deficient by arguing during closing argument that there was no conspiracy to fabricate the allegations against him.
A
During her opening statement, defense counsel told the jury that mother had involved the victim in an argument she was having with defendant after mother and defendant had broken up. Counsel explained that, during a discussion about going to court and dealing with a custody dispute involving E. and A., the victim informed mother that defendant had touched her. Counsel went on to tell the jury that the victim’s allegations of inappropriate touching “don’t make sense” given the “tens, if not hundreds, of inconsistencies in this case.” In support of this assertion, counsel described some of the inconsistencies the jury would hear regarding the victim’s allegations of abuse.
At trial, there was evidence of various statements made by the victim and E. regarding the allegations of abuse that were inconsistent with their testimony, including the amount of times the victim was touched by defendant, when and where the touching occurred, how the victim was touched, and how long the touching lasted.
At the outset of her closing argument, defense counsel stated, “I want to start out by telling you that the evidence you have seen and heard does not support the conclusion that this is some well-orchestrated, preplanned conspiracy, okay?” Following a discussion of several jury instructions and various legal principles, counsel pointed out that the victim and mother had been untruthful in the past, and that three civilian witnesses (i.e., mother, the victim, and E.) had made prior statements that were inconsistent with their testimony. She argued defendant had not made inconsistent statements, and noted it was not possible that everyone who testified told the truth. Counsel reasoned: “If you believe what [the victim] said, then you have to disbelieve what [defendant] said. Fair enough? No. [¶] What’s happened here . . . is we have seen the evolution of statements. . . . [Y]ou can look at the facts, at the information you have and you can see a very plain pattern. [¶] What causes that evolution? What causes those stories to change? Could it be a grand conspiracy? Sure. Is the evidence in this case sufficient to prove a grand conspiracy? Absolutely not. Could it be that some people are telling the truth and other people are lying? Of course it could. . . . Could it be that [the victim] and [E.] were influenced by their mom. Of course. Of course.”
Defense counsel went on to discuss some inconsistent statements regarding the victim’s allegations of abuse, and noted that mother attempted to explain why the victim’s statements prior to trial were inaccurate or mistaken on several occasions. Counsel also noted that mother tried to minimize her conduct during the argument she had with defendant after she hit E. with the remote. Counsel then stated: “Now, am I suggesting [mother] is some evil, lying conspirator? No. I’m suggesting that [mother] is a mother and a human being and she has made mistakes and her memory is not infallible.” After pointing out the evidence that E. told the victim he did not see “any breast grabbing,” which was inconsistent with what E. subsequently said during his SAFE interview, counsel stated: “Now, what do we know changed between those two times? We know that he was asked specifically, Did you see your dad’s hands? Was that question posed to him in an effort to create a case against [defendant]? No. No, it wasn’t. That question was posed to him because his mother was worried about what he had seen and what had happened to her daughter. [¶] She did not know better. She did not know not to ask that kind of question . . . until after she spoke with the detective . . . .”
In addition, defense counsel told the jury it was an objective fact that the accounts of what defendant allegedly did to the victim changed over time, and the reason or motivation for those changes was subjective. Counsel then stated: “Now, I said -- the very first thing -- this is not a case of grand conspiracy. That’s not what my client told you. [Defendant] testified that he believed this is a conspiracy. He believes that [mother] has done this on purpose. Why did he testify to that? Because that’s what he believes. That’s what he believes to be true. [¶] Whether or not his interpretation of the timeline, whether or not his interpretation of the consistencies is correct is of no consequence. What matters is what does the evidence tell you all?”
Defense counsel went on to tell the jury there was evidence showing that children are suggestible. She also said family discord impacts the way people remember things. Counsel then added: “So as this relationship between the two adults deteriorates and the children are bounced around and unstable, what happens? That impacts the way people remember things. . . . [S]o when mom is talking about going to court for custody of the two younger siblings, that [the victim] told you she would have been so upset if they were gone, [the victim] realizes there’s something that she can say that might help.” As an example of how family discord impacts memory, counsel pointed to E.’s testimony in which he claimed defendant put his hands in the victim’s pants during the incident when the victim was washing the dishes. Counsel noted the victim never made such an accusation and E. never mentioned this prior to trial. Counsel stated, “Do I think that [mother] or [the victim] sat [E.] down and said, You must tell them this? No.” She explained that [E.] heard and saw what was going on around him and his faulty memory was influenced by these experiences.
Concluding her argument, defense counsel said: “[The victim]’s misinterpretation of an innocent hug is what started all of this and it was influenced by what happened thereafter. Her mother made it clear that there was a fight brewing, a custody fight brewing, and she’d seen plenty of fights between these two folks. [¶] In this case, where does the evidence leave you? It leaves you with only one reasonable conclusion: That [defendant] is innocent. He is not guilty. The evidence and the testimony has left you in a position where -- it’s kind of clear as mud, isn’t it, right? [¶] Who knows what happened or when it happened. What we know is that [defendant] has consistently denied these allegations . . . . [¶] . . . [¶] He is angry at one person and one person only. He loves his children. He loves [the victim] as his own daughter. He is not now nor has he ever been attracted to her in a sexual way. [¶] . . . [¶] This mess has no business in the criminal courts. This mess is between two grownups and that it has involved the children is a disservice to each and every one of them, but that doesn’t change that the People have failed to meet their burden of proof because these things did not happen.”
B
To establish ineffective assistance of counsel, a defendant must make a threshold showing that counsel’s performance was below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” [Citation.] . . . “ ‘Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.’ ” [Citation.]’ [Citation.] If the record on appeal ‘ “ ‘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,’ the claim on appeal must be rejected.” ’ ” (People v. Vines (2011) 51 Cal.4th 830, 876.) Here, the record does not affirmatively disclose that defense counsel had no rational tactical purpose for the alleged deficient performance in her closing argument.
Defendant has not shown that his counsel’s closing argument resulted in the withdrawal of a crucial defense. (People v. Diggs (1986) 177 Cal.App.3d 958, 969-970.) There was no direct evidence adduced at trial to support defendant’s theory of a conspiracy to falsely accuse him of abusing the victim, and the circumstantial evidence supporting such a theory was weak. Given the lack of evidence to support a conspiracy, defense counsel could have reasonably concluded it was tactically unwise to make such an argument. The record reflects that defense counsel made the tactical decision to focus on the credibility of the victim and E., and to offer an explanation as to why they would falsely accuse defendant of abusing the victim, which included the suggestion that mother influenced them. On this record, defense counsel’s performance was not deficient. “The mere circumstance that a different, or better, argument could have been made is not a sufficient basis for finding deficient performance by defense counsel. [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 748.) “Even if some of the arguments [not made] would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. . . . [J]udicious selection of arguments for summation is a core exercise of defense counsel’s discretion.” (Yarborough v. Gentry (2003) 540 U.S. 1, 7-8 [157 L.Ed.2d 1, 9] (per curiam).)
DISPOSITION
The judgment is affirmed.



/S/
MAURO, Acting P. J.



We concur:



/S/
MURRAY, J.



/S/
DUARTE, J.