Filed 1/14/19 P. v. Garner CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appointed counsel for defendant James Harold Garner asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 123-124.)

I. BACKGROUND

A jury convicted defendant of three counts of rape, two counts of forcible oral copulation, and one count of elder abuse. The victim was defendant’s 65-year-old mother, who had suffered a stroke two years prior.

The night of the incident, defendant, defendant’s seven-year-old son, and the victim were in their apartment in Sacramento. Defendant had been drinking alcohol, and his son was watching TV by himself. The son heard the victim scream for help repeatedly.

The son went to the victim’s room and saw defendant and the victim. The victim was on the bed and said, “please help.” Defendant yelled to his son to, “get out.” The son left and went back to the TV. When he heard the victim scream for help again, he went back to the victim’s bedroom to find the door locked.

The son called his mother (defendant’s ex-girlfriend), who was in the Bay Area. He asked her to pick him up. He also told her the victim was screaming and the door was locked. The ex-girlfriend arrived around an hour later.

The ex-girlfriend got her son and put him in the car. She then went back inside the apartment and knocked on the victim’s door. Defendant opened the door. The ex-girlfriend could only see him from the waist up, but he had no shirt on and looked confused. Defendant closed the door.

About five minutes later, defendant came out wearing clothes.

The victim also came out. She was using her walker and was wearing a long T-shirt but no pants. The victim appeared distraught, as though she had been crying. The victim asked the ex-girlfriend to call the police.

Defendant was in the hallway. He was rambling, looked confused, and “saying words that didn’t mean anything.” Defendant made the victim go back into her room. He then followed the ex-girlfriend until she left the apartment, and he closed the door. She called 911.

Responding officers conducted a welfare check and found the victim in her bedroom and defendant in his bedroom. The officers had difficulty waking defendant but eventually succeeded. The officers exited the apartment once defendant explained he was the victim’s caretaker, and spoke to the ex-girlfriend. Once they learned of the possible sexual assault, they went back inside the apartment and arrested defendant.

The victim was seen by a nurse practitioner who performed a forensic medical exam. The findings were consistent with oral copulation and penetrating genital trauma. The injuries “were one of the most severe cases [the nurse had] ever seen.” The victim told the nurse that her son, defendant, had caused the injuries.

The victim told a responding officer her son had woke her and got in bed with her.[1] He took off his shorts and underwear and started to come on to her. He put his penis into her mouth two or three times and licked her vagina. He also put his penis into her vagina approximately three to four times.

At one point, defendant picked the victim up off the bed and put her on the floor. Without doing anything to her there, he picked her back up, put her back on the bed, and put his penis in her vagina again. The victim told the officer she did not know if defendant had ejaculated.

The victim was admitted to the hospital, and two days after the incident she spoke with an investigating officer. She recalled she had gone to bed around 7:00 p.m. and woke to the sound of defendant talking. Defendant “started to get amorous” and took off his clothes. He put his penis into her vagina. She yelled and her grandson heard it. He stopped when the ex-girlfriend came into the house. But after the ex-girlfriend left, defendant raped her again.

Two days after the first hospital interview, the victim again spoke with an investigating officer. She recalled defendant had put his mouth on her vagina and had raped her. At one point during the rape, he stopped and put his penis in her mouth. He then put his penis in her vagina again. After what seemed “like forever,” the ex-girlfriend arrived, and defendant stopped raping her. But after the ex-girlfriend left, defendant raped her again. He stopped when the police arrived, but said, “We’ll get back to this.”

At trial, a criminalist testified that a swab collected from defendant’s penis contained DNA of which the victim was a possible contributor: The probability of a random match was one-in-a-million for the Caucasian population.

Defendant testified that he was the victim’s care provider, and his mother would confuse him and his dad.

The night of the incident, he drank a fifth of vodka, which was a normal amount for him. He also took pills a neighbor had given him to help him sleep and smoked resin from his marijuana pipe. He then fell asleep.

His son woke him to watch a movie. After the movie, defendant went to the bathroom and thought he heard the victim calling for him. He walked into the victim’s room. The victim woke and started struggling, fighting with the blankets, and screaming.

He was holding her legs to prevent her from falling out of bed, when his son walked in and asked what he was doing. The victim was yelling, “help, get off of me, who are you, where’s my son” and, possibly, “rape.” Defendant “freaked out” and told his son to go to bed. Defendant tried to calm the victim but eventually gave up and walked to the kitchen.

In the kitchen, he poured himself a drink. Concerned for the victim, he went back to her room. The victim started screaming and yelling as soon as he walked in. Not wanting his son to see his grandmother like that, he held the door closed with his foot. He eventually calmed his mother down. He then left, went to his son’s bedroom, and fell asleep.

He woke to the sound of his ex-girlfriend opening the front door. When he saw his son was not in his room, he went to the victim’s room to look for him. About then, he realized he had urinated on himself. He woke the victim and told her he was looking for his son and asked to use her cell phone. The victim said the phone was on or around the nightstand.

The victim said she had had a bad dream and remembered screaming out the window for help. Defendant saw that one of the blankets that usually covers the window was off, and the lock was halfway up. Defendant asked if something happened, the victim said she did not know. The victim was suspicious someone had gotten in.

While defendant was looking for the victim’s cell phone, the ex-girlfriend knocked on the door to the victim’s room. Defendant opened the door and confirmed she had his son and told her to hold on while he dressed. Defendant and the ex-girlfriend then “had words” in the hallway. Defendant explained he had gone to the victim’s bedroom while the victim was having “some kind of episode,” and he had yelled at his son to go back to bed.

After the ex-girlfriend left, defendant had another drink and went to bed. Defendant said, “it is patchy after that.” He denied any memory of being arrested and taken to jail, though he vaguely recalled being on the freeway and asking why he had been arrested.

On cross, defendant was asked about statements he had made to officers after his arrest. Most of his statements were recorded and played for the jury. Defendant did not deny making the statements but claimed no memory of them, explaining, “I didn’t know what I was saying,” and, “I have a blank spot for a chunk of time when the police were there.” His statements included: he had bathed naked with the victim; “some weird shit happened,” and, “I don’t want to remember it”; the victim came up on him when his clothes were off and “that was some fucking weird shit”; the victim, while naked, sprang herself on him; he got naked with her because she scared him to do such and, “honestly, there was a lot that went on that evening”; he remembered “fucking shrecking [sic] [his] clothes off and fucking telling her I’m getting the fuck out of here because I don’t know what the fuck is going on”; “Dude, do you want to have a little, fucking, straight up, honest truth, it was the first time it’s happened”; “She tried coming at me like it was my dad”; and he repeatedly said he had his pants off, and it was a sexual event.

The jury found defendant guilty of three counts of rape (Pen. Code, § 261, subd. (a)(2))[2] and two counts of forcible oral copulation (§ 288a, subd. (c)(2)). As to each of those five counts, the jury found the victim was 65 years old. (§ 667.9, subd. (a).) It also found defendant guilty of elder abuse. (§ 368.)

The trial court imposed a 45-year aggregate term: full consecutive eight-year upper terms for the rape and oral copulation counts along with one-year enhancements for the victim’s age. A four-year upper term for elder abuse was imposed and stayed under section 654. The court exercised its discretion to sentence defendant consecutively for the individual violent sex acts. (§ 667.6, subd. (c).) It awarded 1,197 days of credit (1,041 actual, 156 conduct) and imposed various fines and fees.

II. DISCUSSION

Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.

Defendant has, however, exercised his right to file a supplemental brief raising an array of contentions:

A. Defendant’s Insufficient Evidence Challenge

Defendant first challenges the evidence supporting his three rape convictions. He maintains the victim never said three acts of rape occurred. Rather, during the second hospital interview, the victim chronicled four criminal acts, including only two rapes: oral copulation, followed by rape, followed by a break when the ex-girlfriend arrived, followed by a second oral copulation, followed by a second rape. We find no error.

Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is “reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) Before the judgment can be set aside for insufficient evidence, “it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here, the record contains evidence of at least three rapes. At the second hospital interview, the victim reported that at one point defendant stopped raping her and put his penis in her mouth:

“[Detective]: Was that before or after he raped you?

“[Victim]: During.”

“[Detective]: So he stopped, put his penis into your mouth. . .

“[Victim]: Yeah.

“[Detective]: And then went back to inserting his penis into your vagina?

“[Detective]: Yes.”

The victim also reported that after the ex-girlfriend left, defendant raped her again. Thus, that interview offered evidence of three separate rapes.

Further, at the victim’s interview with the responding officer, the victim recalled that when defendant was raping her, he picked her up off the bed and put her on the floor. He then put her back on the bed, and put his penis in her vagina again. Thus, that interview also supports a finding of three rapes, by showing at least two rapes occurred before the ex-girlfriend arrived (he raped her a third time after the ex-girlfriend left). We also note the jury received a unanimity instruction.

B. Defendant’s Ineffective Assistance of Counsel Challenges

Defendant next makes five claims that his counsel rendered ineffective assistance.

First, defendant contends his counsel rendered ineffective assistance in failing to refresh a detective witness’s recollection with the detective’s report or the interview transcript. He writes that his counsel was questioning the detective about whether he had told defendant semen was found on the mattress. The detective denied it. Defendant argues his counsel should have refreshed the detective’s recollection with the report or transcript. He maintains this would have allowed his counsel to ask the detective about unidentified semen at the scene, which could indicate an unidentified person was there. Defendant is mistaken.

“To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant.” (People v. Blessett (2018) 22 Cal.App.5th 903, 941.)

Here, defendant cannot show ineffective assistance. Principally, defendant is mistaken as to what occurred. At trial, the defense asked the detective if he had told defendant he had found semen at the scene. The detective responded: “That they had taken a square of the bed and semen would be found on it, yes.” The detective also agreed he had at least implied the semen would be linked to defendant. Counsel then asked if the detective had told defendant “that [law enforcement] had already found [defendant’s] DNA on that piece?” The detective replied: “No.” When asked if he might have said that, the detective responded: “No, I just listened to it a couple hours ago and I don’t recall saying that.” On cross, the detective explained he had not tested the stain for DNA, but he had asked defendant about it to see how defendant would respond.

On this record, nothing suggests ineffective assistance in opting not to impeach the detective on the minute point of whether he had implied or explicitly said defendant’s DNA had been found. Further, the failure to so impeach did not preclude inquiry into the unidentified DNA. Indeed, defense counsel argued at closing: “[W]e know they cut a large portion off this mattress that allegedly contained semen. [¶] . . . That’s what [the detective] was telling [defendant] when they were interviewing him in the jail. We found some semen. It is going to have your DNA on it. Again, there is no evidence there’s any DNA on that, let alone [defendant’s].”

Second, defendant avers he had asked that the material on the bed be tested for DNA but he was continually refused. We again cannot find ineffective assistance.

Whether to seek to have the material on the bed tested was a tactical decision. We defer to trial counsel’s reasonable tactical decisions and employ a strong presumption that the conduct fell within the range of reasonable professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.) We do not second-guess “ ‘ “reasonable, if difficult, tactical decisions in the harsh light of hindsight.” ’ ” (Ibid.) Counsel’s decisions are evaluated in the context of the available facts and are generally not deemed reversible. (Ibid.)

Here, given the context of the overwhelming evidence pointing to defendant as the culprit, not seeking to have the substance tested was an eminently reasonable tactical decision.

Third, defendant argues his counsel was given a 6,000-page medical report regarding an injury to the victim’s brain from her stroke, along with a DVD showing a pocket of fluid putting pressure on her frontal lobe, causing mental issues. He also argues multiple friends and family members would provide statements detailing the severity of the victim’s confusion. He avers his trial counsel, against his wishes, never submitted the report as evidence or asked for an expert to evaluate and testify about it. We do not find ineffective assistance.

The medical report and DVD are not part of the record, nor is there proffer of what an expert or defendant’s friends and family would testify to. We therefore do not find ineffective assistance on that basis. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [“The record does not establish defense experts would have provided exculpatory evidence if called, and we decline to speculate in that regard”].)

Fourth, defendant avers his lawyer, against his wishes, opted not to dismiss a juror who had to be questioned about “a biased comment against me she made to the D.A. in the hallway.” We find no error.

During trial, a juror reportedly approached one of the attorneys and made a comment about “the difficulty of his job.” The juror later explained to the trial court, “I just think they all had a difficult job, and I shouldn’t have said anything, but I did.” The trial court confirmed the comment was along the lines of “you have a tough job or you have a difficult job” and was not a prejudgment of the case.

The trial court asked counsel if they were okay with the juror remaining. The prosecutor said, “Sure,” defense counsel said, “Yes, based on her answers to the questions and her demeanor, the way she is answering them, I have no problem.” The court added, “I agree. She impressed me early on. She is very bright. . . . She is very attentive, articulate, I think [she] is an excellent juror. . . . She was making a general comment and not suggesting any prejudgment of the case, so I think it is appropriate she stay on.”

Given the context and the juror’s explanation, the tactical decision to not challenge the juror was not unreasonable.

Fifth, defendant challenges his counsel’s failure to ask defendant’s father about the last time he had sex with the victim. Defendant maintains it was the last time his father was home (“according to cell phone texts within 72 hours of the alleged assault”), which would explain the victim’s bruising. Also, when his father testified he had been home about a week prior, defendant argues his attorney failed to specify a five-day week or a seven-day week or to refresh his memory with text messages of him asking to be picked up from his diesel rig. We cannot agree.

Defendant’s father (the victim’s husband) was called by the defense and testified that during the incident, he was out of town, driving long-haul. He also testified the victim had suffered a stroke two years before the incident. After the stroke, the victim would get disoriented and sometimes forget where she was. At one point, she said she had received a call from an uncle who had died several years prior.

Defense counsel asked defendant’s father about the last time he had been home before the incident. He testified, “Not real sure, probably, probably a week or so before that anyway.”

We cannot find ineffective assistance. Whether to ask the father about the last time he had sex with the victim was, again, a tactical decision. And nothing in the record suggests the failure to do so fell outside the range of reasonable professional assistance. Nothing indicates the father was home within 72 hours of the incident, and the victim had testified at the preliminary hearing that, “Me and my husband, we haven’t had sex for quite a while.” And, given the father’s lack of certainty regarding when he had last been home, we cannot fault counsel’s failure to specify a five- or seven-day week. Finally, the text messages defendant refers to are not part of the record on appeal. (See People v. Bolin, supra, 18 Cal.4th at p. 334 [“ ‘We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation’ ”].)

C. Defendant’s Other Challenges

Defendant asserts that a crime lab technician admitted on the stand to not following federal procedures when processing DNA samples. Defendant, however, provides no citation to the record, and we are left to speculate as to what he is referring. We therefore decline to address this contention. (See People v. Smith (2015) 61 Cal.4th 18, 48 [“ ‘ “It is neither practical nor appropriate for us to comb the record on [defendant’s] behalf” ’ ”].) We note, however, that our Wende review, which included the DNA testimony, uncovered no arguable error that would result in a more favorable outcome to defendant.

Defendant also asserts that the “D.A. during closing arguments made a reference to the amount of time in prison [he] was facing and prejudiced the jury.” Again, he provides no record citation, and we can only speculate as to what he is referring to. We will thus decline to address this contention, while noting our Wende review revealed no arguable error.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MURRAY, J.