Filed 4/28/15 P. v. Myers CA4/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059430
v. (Super.Ct.No. RIF1201472)
RAYMOND DEAN MYERS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.
Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry J.T. Carlton and Warren J. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted defendant and appellant Raymond Dean Myers of two counts of
engaging in sexual intercourse with a minor 10 years of age or younger (Pen. Code,1
§ 288.7, subd. (a), counts 1 & 2) and two counts of engaging in oral copulation with a
minor 10 years of age or younger (§ 288.7, subd. (b), counts 3 & 4). The trial court
sentenced him to a total term of 40 years to life in state prison. On appeal, defendant
argues that the trial court erred because it did not provide a unanimity instruction and
because it did not provide an instruction on the lesser included offense of attempted
sexual intercourse with a minor. He also argues that his trial counsel provided ineffective
assistance. For the reasons discussed post, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The prosecution’s case
The victim was eight years old at the time of trial and was seven years old when
the events she testified to occurred. Defendant was a friend of the victim’s parents and
babysat her and her two siblings in his home in Corona between June 2011 and January
2012. The victim testified that when defendant babysat her “sometimes he did bad things
and sometimes he did good things.” When asked to describe the bad things defendant did
to her, the victim recounted multiple occasions of molestation.
1 Unless stated otherwise, all further statutory references are to the Penal Code.
2
She described a time when she had been sleeping in defendant’s bed and was
awakened by a feeling of pain. Her pants had been removed and defendant was licking
her “coliflor,” which is a word she used for her “privacy place,” or her vagina. When
asked “[h]ow many different times” defendant had licked her vagina, the victim
responded, “I can’t remember how much times, but sometimes a lot.” She said that
“[e]very day I went he licked me[,]” and, when asked if defendant had licked her on more
than two separate occasions, she said “Yes.” She explained that it happened in
defendant’s room, when her brother was in another room and her parents were not
around. She testified that it “hurt very much” when defendant licked her, and that one
time he had told her not to tell anyone about what he had done because he would go to
jail.
She also testified about an occasion when defendant put his “tail” (the word she
used for “the part where he goes to the restroom,” or his penis) in her vagina. She was
lying in defendant’s bed on her back with her legs apart and he was kneeling between her
legs. She said that defendant took his tail and “put it in my coliflor.” When asked to
describe exactly what defendant had done with his tail, she explained that he had been
touching it (and she mimicked this by collapsing her hands around what would be his
penis) and “kind of put it like in the center.” She said this was “a lot painful,” but that
defendant had told her it was “good for [her].” He had also told her not to tell anyone
about it. She could not remember how many different times defendant put his tail in her
3
coliflor, but she thought it was “maybe twice.” When asked later if she thought it had
happened more than once, she said “I think like more than once.”
The victim’s mother testified that defendant looked after the victim and her
siblings while she was at the hospital with the victim’s stepfather, who was receiving
cancer treatments at the time. Before June 2011, the victim was a happy child, who liked
to sing and dance, but by January 2012, “[h]er self-esteem went down,” “she wanted to
be alone,” and “she did not want to talk much.”
About two weeks after the last time the defendant babysat the victim, the victim’s
mother asked her what was wrong. The victim pointed to her vagina and said defendant
had been licking her. She also said that defendant had put his penis “right there” and
again motioned to her vagina. The victim’s parents immediately filed a report with the
police, and the investigating officer scheduled an appointment with a forensic interviewer
with child protective services.
The prosecution played the video recording of this interview for the jury. During
the interview, the victim said that defendant licked her coliflor, and explained that
“sometimes when he touches it, it tickles and then—and then it hurts.” She said the
licking happened “more times” than once. The first time, she went to sleep on
defendant’s bed and when she woke up, her pants were down and he was licking her.
When asked about another time defendant had licked her, she said, “he didn’t get
anymore.” When the interviewer reminded her that she had said the licking happened
4
more than once, the victim replied, “Oh, it was because he put the tail—I mean, he licked
another time. He put the tail on me [¶] . . . [¶] on my coliflor [¶] . . . [¶] and that
happened one time.” The interviewer asked her again whether defendant had licked her
one time or more than one time and she replied, “One time.”
When asked about what defendant had done to her with his tail, the victim said
that he put it on her coliflor. The interviewer asked if he put his tail “on” or “in” her
coliflor, and the victim replied, “In.” She had been lying down on his bed and he was
sitting in front of her “holding the—the tail and putting it like in there to be still.” She
said defendant put his tail in her coliflor “more than one time.” It hurt when defendant
did this, but he told her it was good for her. When asked to describe one of the other
incidents, she said “He did the same thing.” The interviewer then asked “how much”
defendant put his tail in her coliflor and what made him stop. The victim replied, “he did
more than widen . . . and then he stopped.” She described defendant’s tail as “squishy,”
“thick, ” and “hard . . . . [l]ike a bone.”2
The prosecution also played a recording of a phone conversation in which the
victim’s stepfather asked defendant whether he had molested his daughter.3 Defendant
2 During the interview and at trial, the victim recalled an incident where
defendant made her grab his penis and move her hand up and down, but this incident did
not form the basis of any of the four counts against defendant.
3 This was a pretext call, organized and recorded by the investigating officer.
5
denied molesting the victim, but said that he recalled a time he had been dreaming about
a woman named Cindy, and the victim, who was sleeping in his bed, woke him up and
said “get off me.” He acknowledged that he “might have touched” the victim, thinking
that it was Cindy. When asked if it was possible that he also had licked her he said, “that
night I could have.” Defendant told the stepfather that he knew how he felt because one
of his daughters had been molested by his ex-brother-in-law.
The prosecution’s forensic pediatrician, Dr. Vivanco, testified that the victim’s
genital exam was normal, and that this was consistent with the history provided by the
forensic interviewer. She had not expected there to be any findings of physical trauma
because genital tissue heals quickly and completely after 48 to 72 hours and because at
least two weeks had passed since the last time defendant babysat the victim. A child can
have a normal exam even though there was a history of penetration and the fact that the
victim’s hymen was unbroken did not mean she had not been penetrated. “Vulvar coitus”
is a type of penetration that occurs when the penis moves past the labia majora, but not
past the hymen. A child can perceive penetration and pain from vulvar coitus, and yet
her hymen would still be intact. Dr. Vivanco concluded that nothing about the exam
caused her to believe that the victim was not sexually abused.
6
2. The defense’s case
Defendant’s two daughters testified that he had never molested them and that they
never saw him exhibit any strange behavior around children. Defendant’s friend, his ex-
girlfriend, and his landlord testified that he was good with children.
Defendant’s friend also testified that he thought the victim’s stepfather was “kind
of a jerk” with his children to the point that they were a “little bit scared of him.” On
cross-examination, he admitted he had signed a witness statement prepared by defense
counsel which included the statement that, in his experience, the stepfather was always
“very respectful” to the victim and her siblings. He attempted to deny that he had ever
made such a statement, but ultimately agreed that it was likely that the statement was
accurate.4
Defendant testified that the victim’s family was living at his house because they
were homeless. He said that the victim’s parents slept on an air mattress in his living
room and that the stepfather would watch “his Mexican channels on my big . . . screen
TV.” Defendant believed the stepfather was jealous of his relationship with the victim’s
mother and feared that defendant would take his family away. Defendant also believed
that this jealousy and fear led the stepfather to accuse him of molesting his daughter and
4 The parties later stipulated that the witness had in fact previously stated that the
stepfather was always respectful to his children, and that his trial testimony was the first
time he stated otherwise.
7
to coach her to testify against him. He testified that the victim could “play it off very
well,” adding, “This is a very smart child.”
Defendant explained that he cannot obtain an erection due to paralysis, and denied
having committed the alleged offenses. He admitted that he had rolled on top of the
victim once during a dream, but maintained that he had never pulled her pants down and
licked her vagina. When asked on cross-examination how the victim would have been
able to come up with the details of her testimony about what he had done to her with his
tail, defendant stated, “She’s got a brother that showers or bathes with her every day.
And the mother has showed her . . . what a male’s penis is supposed to look like.” He did
not know where the victim would have learned to describe and demonstrate the act of
him kneeling down, with her between his legs, and putting his penis inside her vagina.
He recalled telling the investigating officer, “there’s no sense of painting a fence with a
wet noodle,” by which he meant, “I cannot obtain an erection, so why would I have her
grab me?”
Defendant was also asked about his reference to his daughter’s molestation during
the pretext call. He testified that his ex-brother-in-law had molested his daughter. He
was not sure of the extent of the molestation, but he thought that she had been
inappropriately touched and that there “[m]ay have been penetration.” He also testified
that he could not remember his ex-brother-in-law’s name, and that he never reported the
8
molestation to the police. When called on rebuttal, his daughter testified that she had
never been molested.
ANALYSIS
1. The unanimity instruction
a. Background facts
Defendant was charged with two separate counts of sexual intercourse, or
penetration, (counts 1 & 2) and two separate counts of oral copulation (counts 3 & 4). At
trial, the victim described one specific act of penetration and one specific act of oral
copulation and testified that both the penetration and the oral copulation had happened
more than one time. During closing statements, the prosecutor argued that the evidence
proved beyond a reasonable doubt that defendant was guilty of all four counts because
the victim’s testimony demonstrated that he orally copulated her two times and
penetrated her two times.
The jury received four separate verdict forms for the two counts of penetration
(counts 1 & 2) and the two counts of oral copulation (counts 3 & 4), and it also received
the following instructions from the court: “Your verdict must be unanimous. [¶] . . . [¶]
You will be given verdict forms. [¶] . . . [¶] If you are unable to reach a unanimous
decision—If you are able to reach a unanimous decision on only one or only some of the
charges, fill in those verdict forms only and notify the bailiff.”
9
Defendant now contends that the trial court’s failure to give the jury the standard
unanimity instruction, or at the very least, the modified unanimity instruction applicable
to generic molestation testimony, constitutes reversible error. Respondent concedes that
the court erred by not giving a modified unanimity instruction, but argues that the error
was harmless. We conclude that the error of failing to provide a modified unanimity
instruction was harmless.
b. A modified unanimity instruction was required
We review a claim of instructional error de novo. (People v. Manriquez (2005) 37
Cal.4th 547, 581.) A criminal defendant is constitutionally entitled to a unanimous
verdict “in which all 12 jurors concur, beyond a reasonable doubt, as to each count
charged.” (People v. Jones (1990) 51 Cal.3d 294, 305 (Jones).) A unanimity instruction
is one in which the court explains to the jury “ ‘the need for unanimous agreement on the
distinct criminal act or event supporting each charge.’ ”5 (People v. Whitham (1995) 38
Cal.App.4th 1282, 1295.) In other words, when a defendant is charged with a criminal
5 The standard unanimity instruction that defendant argues should have been
given is CALCRIM No. 3500 (entitled, Unanimity), which provides:
“The defendant is charged with [in Count
____] [sometime during the period of ____ to ____].
“The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one of these acts
and you all agree on which act (he/she) committed.”
10
offense but evidence of more than one act constituting the charged offense is introduced,
the jury must be instructed that it must unanimously agree upon the particular act
committed in order to convict. (Ibid.; see People v. Beardslee (1991) 53 Cal.3d 68, 92
[unanimity is required when there is evidence of “acts that could have been charged as
separate offenses”].) A trial court has a sua sponte duty to give a unanimity instruction
“ ‘[w]hen the evidence tends to show a larger number of distinct violations of the charged
crime than have been charged and the prosecution has not elected a specific criminal act
or event upon which it will rely for each allegation.’ ” (Whitham, supra, 38 Cal.App.4th
at p. 1295.)
In Jones, the California Supreme Court recognized that child molestation cases
pose a unique set of issues with regard to unanimity of verdict. (Jones, supra, 51 Cal.3d
at pp. 316-322.) The court explained that oftentimes the child victim is only able to
provide generic testimony that describes specific, though indistinguishable, acts of
molestation. (Id. at p. 321.) It stated that, “[i]n such cases, although the jury may not be
able to readily distinguish between the various acts, it is certainly capable of unanimously
agreeing that they took place in the number and manner described.” (Ibid.) Thus, if the
child’s and the defendant’s testimony is such that “there is no reasonable likelihood of
juror disagreement as to particular acts, and the only question is whether or not the
defendant in fact committed all of them,” the court held that the jury should be given a
“modified unanimity instruction.” (Id. at p. 322, italics added.) A modified unanimity
11
instruction, “in addition to allowing a conviction if the jurors unanimously agree on
specific acts, also allows a conviction if the jury unanimously agrees the defendant
committed all the acts described by the victim.”6 (Ibid.)
Here, because the victim gave generic testimony describing repeated acts of
penetration and oral copulation and, because defendant offered the same defense to all of
these acts, there was no reasonable likelihood of jurors disagreeing about particular acts
and instead the only question was whether he committed all of them.
Thus, the sole issue for the jury was the credibility of the victim’s testimony
versus the defendant’s—it would either believe the victim and find that defendant had
committed all of the acts she had described (thus convicting him of two counts of sexual
intercourse and two counts of oral copulation) or believe that defendant had not
6 The modified unanimity instruction that defendant argues should have been
given to the jury is CALCRIM No. 3501 (entitled, Unanimity: When Generic Testimony
of Offense Presented), which provides: “The defendant is charged with _________
[in Count[s] _____] sometime during the
period of _____ to _____.”
“The People have presented evidence of more than one act to prove that the
defendant committed (this/these) offense[s]. You must not find the defendant guilty
unless:
“1. You all agree that the People have proved that the defendant committed at least
one of these acts and you all agree on which act (he/she) committed [for each offense];
“OR
“2. You all agree that the People have proved that the defendant committed all the
acts alleged to have occurred during this time period [and have proved that the defendant
committed at least the number of offenses charged].”
12
committed any of the acts the victim described. Accordingly, the trial court should have
provided the jury with the modified unanimity instruction described in Jones to ensure
that the jury unanimously agreed appellant committed all of the acts the victim described.
c. The error was harmless beyond a reasonable doubt
The trial court’s error was harmless under either Chapman v. California (1967)
386 U.S. 18, 24 (Chapman) or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).7
California courts have held that the failure to give a unanimity instruction is harmless
“[w]here the record provides no rational basis, by way of argument or evidence, for the
jury to distinguish between the various acts, and the jury must have believed beyond a
reasonable doubt that defendant committed all acts if he committed any.” (People v.
Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson); see People v. Hernandez (2013)
217 Cal.App.4th 559, 577, citing People v. Diedrich (1982) 31 Cal.3d 263, 283 [failure to
give unanimity instruction is harmless “where the defendant offered the same defense to
all criminal acts and ‘the jury’s verdict implies that it did not believe the only defense
offered’ ”]; People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [failure to give unanimity
instruction was harmless where jury rejected defendant’s single defense to all instances of
firearm possession].)
7 There is currently a split in authority regarding which error standard to use for
the failure to give a unanimity instruction. (People v. Matute (2002) 103 Cal.App.4th
1437, 1448–1449.)
13
Here, the combination of the trial testimony, closing arguments, jury instructions,
and verdict forms ensured that the jury must have believed beyond a reasonable doubt
that defendant committed all of the acts of molestation that he was accused of, if he
committed any of them. First, as explained, the jury had no way to distinguish between
the various acts of molestation because the victim testified generically to multiple acts of
penetration and oral copulation and the defendant offered the same defense to all of the
acts. Second, counsels’ arguments and the court’s instructions were clear that the jury
had to find unanimously that defendant committed the four acts charged. During closing
statements, the prosecutor argued that the jury should find defendant guilty of “the two
times that it’s charged that he put his penis inside of her vagina” and for “the two times
charged that he licked her vagina”; defense counsel argued that defendant did not commit
these acts. The court instructed the jury that if it was “able to reach a unanimous decision
on only one or only some of the charges,” it was to “fill in those verdict forms only and
notify the bailiff.”
Because defendant claimed that the entirety of the victim’s testimony about the
acts of molestation was fabricated, the jury either had to believe the victim that she was
penetrated more than once and orally copulated more than once, or it had to disbelieve
her; there was no third option (e.g., that defendant penetrated her once but did not commit
any of the other three alleged acts). The fact that the jury returned all four verdict forms
with a finding of guilty means that: (1) it unanimously found that defendant committed
14
the specific act of penetration and specific act of oral copulation that the victim recounted
at trial (which, for ease of reference we will call counts 1 & 3) and it unanimously found
that defendant had committed at least one more act of penetration and oral copulation
(counts 2 & 4). In other words, the jury was convinced that defendant “committed all
acts if he committed any.” (Thompson, supra, 36 Cal.App.4th at p. 853.)
Defendant argues that the trial court’s failure to provide a unanimity instruction
was reversible error because “[a]lthough [his] defense to all the counts was essentially the
same, a reasonable jury could still have rejected [that] defense, yet be unconvinced
beyond a reasonable doubt that the evidence established more than one of each offense
had been committed.” Defendant misapprehends the nature of the testimony the jury
heard at trial. Because the victim gave only generic testimony regarding the additional
instances of sexual intercourse and oral copulation that form the basis for counts 2 and 4,
there is no danger that, for example, half of the jurors would find defendant guilty of one
distinct act as the basis for count 2 and the other half would find him guilty of a
completely different distinct act. In the case of count 2, the only option for the jury was
to believe or disbelieve that defendant had sexual intercourse with the victim one more
time in addition to the specific instance she described. The same logic applies to count 4
and the charge of oral copulation. By returning a guilty verdict on each count, the jury
demonstrated that it did not believe defendant’s claim that the victim fabricated the
15
testimony; rather, it believed that defendant had engaged in each of the two types of
molestation charged on two separate occasions.
Nothing in the record suggests that had the jury been instructed on unanimity, it
would have acquitted defendant. We thus conclude that the error was harmless under
either Watson or Chapman.
2. The instruction on attempted sexual intercourse with a child
Defendant contends that the trial court erred by failing to instruct the jury on
attempted sexual intercourse with a child as a lesser included offense of the completed
crime set forth in section 288.7, subdivision (a). We conclude that the trial court did not
err and, even if it did, any error was harmless.
a. The trial court did not err
We independently review claims that a trial court erroneously failed to instruct on
a lesser included offense, and in doing so consider the evidence in the light most
favorable to the defendant. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Turk
(2008) 164 Cal.App.4th 1361, 1367-1368, fn. 5.)
Attempting sexual intercourse with a child is a lesser included offense of sexual
intercourse with a child. (See, e.g., In re Sylvester C. (2006) 137 Cal.App.4th 601, 609
[“California appellate courts have repeatedly accepted the principle that attempt is a
lesser included offense of any completed crime”]; People v. Bailey (2012) 54 Cal.4th
740, 749 [attempted rape is a lesser included offense of rape].) A trial court has an
16
independent duty to instruct the jury on lesser included offenses when there is
“substantial evidence raising a question as to whether all of the elements of the charged
offense are present.” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) In this context,
substantial evidence is “evidence that a reasonable jury could find persuasive.” (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
To justify an attempted sexual intercourse instruction, there must have been
substantial evidence that defendant intended to penetrate the victim’s vagina with his
penis but was “unsuccessful in the attempt.” (People v. Holt (1997) 15 Cal.4th 619, 674.)
However, where “there is no evidence that the offense was less than that charged,” there
is no duty to instruct on the lesser included offense. (People v. Breverman (1998) 19
Cal.4th 142, 154.)
Here, when viewed in the light most favorable to defendant, there is insufficient
evidence in the record to support a reasonable finding that defendant attempted to have
sexual intercourse with the victim but was unsuccessful. On multiple occasions at trial,
the victim unequivocally testified that defendant put his tail “in” her coliflor.
Defendant argues that there is substantial evidence to support an attempt
conviction because during the forensic interview the victim initially said that defendant
put his tail “on” her coliflor. Defendant ignores the fact that the victim immediately
corrected that statement and explained that defendant had put his tail “in” her coliflor,
17
which the jury could reasonably infer meant that her initial use of the word “on” was an
inadvertent mistake.
Moreover, even more significant than the victim’s retraction of the word “on,” is
her description of defendant’s actions to the forensic interviewer. She explained that
defendant was in front of her and “he was holding the—the tail and putting it like in there
to be still.” She said that this “hurt” and that she felt like she was going to “cry.” When
asked how far defendant had inserted his tail into her coliflor, she responded “maybe like
sorta” and said “he did more than widen and . . . then he stopped.” A jury could
reasonably infer from this description that she meant that defendant caused her labia
majora to widen when he inserted his penis into her vagina.
The victim’s explanation of this same incident at trial further supports the
conclusion that her initial use of the word “on” was an inadvertent mistake. For example,
she testified that defendant put his tail in her coliflor “like in the center,” and, using hand
movements to illustrate, she mimicked collapsing her hands around a penis and inserting
it into a vagina. In light of the substantial amount of testimony in support of penetration,
we conclude that the victim’s initial use of the word “on” is too thin a basis to support an
instruction on attempt.
Lastly, we reject defendant’s claim that the lack of physical findings of trauma in
victim’s vaginal exam “corroborated an attempted sexual penetration” because in fact this
evidence cuts both ways—i.e., it does not support a finding of the lesser crime while at
18
the same time exculpating defendant of the greater. (See Breverman, supra, 19 Cal.4th at
p. 162 [substantial evidence to support an instruction on a lesser included offense is
“ ‘ “evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed”], brackets in
original.) Dr. Vivanco testified that there can still be penetration without a rupturing of
the hymen and that, if there had been any other injuries to the vagina, they would have
healed long before she conducted the exam. Thus, the victim’s vaginal exam was a
neutral piece of evidence—it did not tend to demonstrate penetration, but neither did it
tend to demonstrate attempted penetration.
a. Any error was harmless
Even if the victim’s initial statement that defendant put his tail on her coliflor did
constitute substantial evidence of attempted sexual intercourse with a child, any error in
not instructing the jury on attempt is reversible only if it was prejudicial to defendant
under the test set forth in Watson. (Breverman, supra, 19 Cal.4th at p. 178.)8 To prevail
under that test, a defendant must demonstrate “a reasonable probability that the error
8 We reject defendant’s argument that this type of instructional error must be
reviewed under the standard set forth in Chapman, supra, 386 U.S. at p. 24 because it
deprived him of his due process right “to have a jury determine all factual issues relating
to a charged offense.” Defendant cites to authority that fails to support his position, and
he ignores the California Supreme Court’s holding that “in a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and
theories thereof which are supported by the evidence must be reviewed for prejudice
exclusively under Watson.” (Breverman, supra, 19 Cal.4th at p. 178.)
19
affected the outcome” of the case. (Id. at 165.) Reasonable probability under the Watson
test means “a reasonable chance,” which is “more than an abstract possibility.” (People
v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) In applying the Watson test, we
consider “ ‘whether the evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so comparatively weak, that there is
no reasonable probability the error of which the defendant complains affected the
result.’ ” (People v. Rogers (2006) 39 Cal.4th 826, 870, original italics.)
Here, the jury was instructed that sexual intercourse means “any penetration, no
matter how slight, of the vagina or genitalia by the penis,” and, for the reasons just
explained, the scant evidence of attempted penetration is weak compared to the
substantial evidence of penetration. (See, e.g., People v. Banks (2014) 59 Cal.4th 1113,
1161 (Banks) [failure not to instruct on lesser included offense was harmless where there
was “some evidence” that the defendant committed the lesser offense, but “the far more
plausible inference” was that he committed the greater offense].)
Defendant argues that there were ambiguities and inconsistencies in the victim’s
testimony regarding penetration that were “substantial enough” to render the error
prejudicial. We take the opposite view of the victim’s testimony. With the exception of
her initial use of the word “on,” all of her trial testimony and statements during the
forensic interview support a finding that defendant penetrated her genitalia. For example,
the jury saw the recording of the interview where, after saying “on,” the victim corrected
20
that she meant “in.” The jury also saw her mimic defendant’s act of putting his penis into
her vagina “in the center,” “in there to be still,” where it “did more than widen.” The
victim repeatedly described the times that defendant put his tail in her coliflor as painful,
and Dr. Vivanco testified that a child would perceive pain from penetration past her labia
majora.
The ambiguity in the victim’s testimony was not “substantial.” Rather, any
ambiguity was the linguistic result of an eight-year-old child trying to communicate
sexual situations she experienced more than a year earlier, situations for which she does
not yet have an articulate vocabulary. Despite her use of idiosyncratic terms for genitalia
and sexual activities and her inability to recall, e.g., dates or the specific number of times
the sexual abuse occurred, she is quite clear and consistent on her recollection of what
happened to her—defendant penetrated her vagina with his penis.
We conclude that it is not reasonably probable that, had the jury been instructed on
attempt, it would have disregarded the substantial amount of evidence in support of
penetration and instead convicted defendant of attempt based on the victim’s initial use of
the word “on” or alleged ambiguities in her testimony regarding penetration.
3. Ineffective assistance of counsel
Defendant contends that he received ineffective assistance of counsel throughout
his trial because his attorney was unprepared, offensive, and lacked a basic understanding
of evidentiary rules and trial procedure. In his opening brief, defendant recounts virtually
21
the entirety of counsel’s performance at and immediately leading up to trial, and points to
numerous examples of alleged deficiencies. We conclude, however, that none of these
alleged errors constitutes ineffective assistance of counsel.
To succeed on an ineffective assistance of counsel claim, defendant must
demonstrate that counsel’s performance was deficient (i.e., it fell below an objective
standard of reasonableness) and that the deficiency was prejudicial. (Strickland v.
Washington (1984) 466 U.S. 668, 687-695 (Strickland); People v. Bolin (1998) 18
Cal.4th 297, 333.)
Where, as here, the claim is based on alleged errors by counsel and the record on
appeal does not contain an explanation for the errors, we must reject the claim unless
there could be “no satisfactory explanation” for counsel’s conduct. (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267 [reversing a holding of ineffective assistance of
counsel where record did not show why counsel failed to move to suppress evidence
obtained during a warrantless search because counsel was “perhaps” aware that the
officer had a justification for the search].) Under these circumstances, the defendant
must overcome a “strong presumption” that counsel’s conduct was sound trial strategy or
otherwise within the wide range of reasonable professional assistance. (Strickland,
supra, 466 U.S. at pp. 689-690; see People v. Leonard (2014) 228 Cal.App.4th 465, 484.)
We need not address both prongs of the Strickland test if defendant makes an
insufficient showing on one. (Strickland, supra, 466 U.S. at p. 697 [“In particular, a
22
court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by defendant as a result of the alleged deficiencies”]; People v.
Kipp (1998) 18 Cal.4th 349, 366.) To establish prejudice, the defendant must show that
there is a “reasonable probability” that, but for counsel’s errors, the result of the
proceeding would have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th
598, 666.) The defendant “must carry his burden of proving prejudice as a ‘demonstrable
reality,’ not simply speculation as to the effect of the errors.” (People v. Williams (1988)
44 Cal.3d 883, 937.) We now address the numerous alleged errors made by defense
counsel in turn.
a. Counsel’s opening statement
During opening statements, defense counsel argued that the charges against
defendant were “trumped up by the little girl’s disruptive family” because “[t]he
stepfather’s very jealous of [defendant].” He argued that “the little girl has been very
well coached, by maybe the . . . district attorney and others, to accuse [defendant].” He
also argued that defendant “probably wasn’t able to do this thing that he’s supposedly
accused of” because “at the time of this incident, he was paralyzed below the waist.”
Defendant now contends that counsel’s opening statement was deficient because:
(1) the argument that the victim’s testimony was fabricated was unsupported by the
evidence; (2) counsel’s allegation that the district attorney coached the victim “provided
the evidentiary basis, as prior consistent statements, to allow the introduction of the
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[forensic interview] video”; and (3) paralysis below the waist was an invalid defense
because, “according to the medical testimony here . . . a flaccid penis could penetrate
female genitalia within the meaning of [section 288.7, subdivision (a)].” We conclude
that these statements do not constitute deficient performance.
Regarding counsel’s fabrication argument, defendant himself testified that he
believed her story was fabricated by her stepfather as a result of his jealousy, and we
cannot conclude on the record before us that counsel did not have a strategic motive for
attacking the victim’s credibility in this manner. Regarding counsel’s coaching
allegation, contrary to defendant’s assertion, it was not the evidentiary basis for
introducing the video of the forensic interview. The video was independently admissible
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under Evidence Code section 1360,9 and the prosecutor had announced his intention to
introduce it before either side had given opening statements.10
Finally, we reject the argument that defendant’s paralysis is not a valid defense to
a claim of sexual intercourse with a child. Evidence of paralysis below the waist would
tend to contradict the victim’s description of the sexual intercourse, namely, that
defendant was kneeling on top of her as she lay on the bed. We therefore cannot
conclude that there was no tactical reason for advancing this theory at trial.
b. Counsel’s objection to admission of the pretext call
Outside the presence of the jury, defense counsel objected to admission of the
pretext call on the ground that the recording was made without defendant’s knowledge.
9 Evidence Code section 1360, subdivision (a), states: “In a criminal prosecution
where the victim is a minor, a statement made by the victim when under the age of 12
describing any act of child abuse or neglect performed with or on the child by another . . .
is not made inadmissible by the hearsay rule if all of the following apply:
“(1) The statement is not otherwise admissible by statute or court rule.
“(2) The court finds, in a hearing conducted outside the presence of the jury, that
the time, content, and circumstances of the statement provide sufficient indicia of
reliability.
“(3) The child [testifies at the proceedings] . . . .”
In this case, the trial court made the requisite findings before admitting the video
recording, and stated, “Evidence Code 1360 provides for situations where the child
testifies and her testimony is consistent. In many respects it is consistent. In some
respects, she can’t remember.” The court asked the prosecutor if this was his purpose in
requesting to play the recording, and he replied that it was.
10 The prosecutor only offered defense counsel’s accusation during opening
statement as an additional reason for admitting the recording.
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The prosecutor responded that the statements in the call were admissible as statements of
a party opponent. The court asked defense counsel for authority supporting his objection
and he responded “[i]n many other cases in this courtroom that rule applies, to introduce
evidence the client is not aware that it’s being recorded.” The court allowed counsel until
the next morning to provide authority for his objection and ruled that the call was
admissible in the absence of such authority.11
Defendant asserts that counsel’s objection to the recording was “frivolous and
demonstrated his lack of knowledge about fundamental rules of evidence [because] the
statements of a party opponent are well-established exceptions to the hearsay rule.” Even
if he is correct that his counsel’s objection constitutes deficient performance, he cannot
demonstrate any prejudice. Counsel’s arguments as to the inadmissibility of the
recording were presented outside of the presence of the jury and by that fact necessarily
could not have affected the outcome of defendant’s case.
11 The next day, defense counsel did not provide the court with the authority for
his inadmissibility argument and, during the testimony of the investigating officer, the
prosecutor sought to play the recording. In the presence of the jury, the court noted that
the defense’s previous objection to the recording was overruled and defense counsel
responded, “The only thing we had is about [¶] . . . [¶] telephone records being obtained
without the knowledge or consent.”
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c. Failure to request unanimity and attempt instructions
Defendant argues that counsel’s failure to request a unanimity instruction and an
instruction on the lesser included offense of attempted sexual intercourse with a child
constitutes ineffective assistance. He asserts that counsel should have argued at trial
either “that [the victim’s] lack of clarity [and] the lack of physical evidence established
reasonable doubt that either offense occurred more than once,” or “that he was only
guilty of attempted sexual intercourse.” Defendant’s arguments are unavailing because
they assume that he was prejudiced by the absence of instructions on unanimity and
attempted sexual intercourse with a child and, as we concluded ante, he was not.
d. Other alleged errors
Defendant recounts many of counsel’s actions before and during trial in an attempt
to support his claim that his attorney was unprepared and abrasive. While some of
counsel’s remarks may not have been as tactful as one might expect given the seriousness
of the crimes,12 defendant has not shown that he has suffered prejudice as a result of any
12 For example, after Dr. Vivanco explained the anatomy of a vagina and how a
child might perceive pain as a result of vulvar coitus, counsel began his cross-
examination by saying, “Thank you very much, Doctor, for giving us an education in
zoology.” At the beginning of his cross examination of the victim, counsel asked “Do
you habla espanol?”—an apparently random question because counsel never touched
upon the issue of the victim’s language again.
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of these examples of alleged deficiencies.13 In light of the overwhelming evidence of
guilt in the form of the victim’s testimony, we conclude that none of counsel’s actions
described in defendant’s briefs had a demonstrable effect on the outcome of the case.
(See, e.g., People v. Bradford (1997) 14 Cal.4th 1005, 1052 [where evidence of
defendant’s guilt was overwhelming, the alleged errors made by trial counsel in failing to
object to the admission of evidence were not prejudicial because the result of the
proceeding would not have been different in the absence of such errors].)
e. Counsel did not completely fail to represent defendant
Lastly, we address defendant’s argument that counsel’s conduct was so egregious
that “no specific showing of prejudice is required” under United States v. Cronic (1984)
466 U.S. 648 (Cronic).
Under the Supreme Court’s holding in Cronic, prejudice may be presumed where
“counsel entirely failed to subject the prosecution’s case to meaningful adversarial
testing.” (Banks, supra, 59 Cal.4th at pp. 1169-1170, citing Cronic, supra, 466 U.S. at
p. 659.) The Supreme Court has clarified that this presumption applies in very limited
13 For instance, defendant describes counsel’s justifications to the court as to why
he was having trouble providing witness statements to the prosecution, as well as
counsel’s unsuccessful attempts to convince the court that testimony on defendant’s
background was relevant. This conduct did not prejudice defendant because the jury did
not see counsel make the unsuccessful arguments defendant complains of, and because
counsel’s tardiness in providing witness statements to the prosecution did not preclude
him from calling those witnesses at trial.
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circumstances, where the attorney’s failure to test the prosecutor’s case is “complete.”
(Bell v. Cone (2002) 535 U.S. 685, 696–697, italics added.) Otherwise, “ ‘specific errors
and omissions’ by trial counsel must generally be litigated as ineffective assistance of
counsel claims under Strickland.” (Banks, supra, 59 Cal.4th at p. 1170 [where counsel
“unwisely” referenced a partial confession defendant had made to the police that the
prosecution did not plan to introduce into evidence, the court held Cronic did not apply
because counsel did not fail to oppose the prosecution throughout the proceeding as a
whole, but rather at specific points].) California courts apply Cronic’s presumed
prejudice rule “ ‘only where counsel was either totally absent or was prevented from
assisting the defendant at a critical stage.’ ” (People v. Brown (2014) 59 Cal.4th 86, 115.)
Here, the record makes clear that counsel did not completely fail to subject the
prosecution’s case to meaningful adversarial testing. To the contrary, he objected to the
introduction of evidence, cross-examined each of the prosecution’s witnesses and
attempted to challenge their credibility, and called several character witnesses for the
defense. During closing statements, he made valid attempts to inject reasonable doubt
into the prosecution’s case, such as by pointing out that the victim could not identify
defendant at trial, that there was no physical evidence of molestation, and that no one else
beside the victim testified to having personal knowledge of the crimes. Because
counsel’s actions were consistent with a deliberate trial strategy, whatever its ultimate
merits or success, and because his alleged deficiencies were particularized and not so
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pervasive that they affected every aspect of trial, we refuse to extend Cronic’s extremely
limited holding to this case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
KING
J.
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