People v. Meserve CA1/1

Filed 1/7/21 P. v. Meserve CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A148944
v.
KAILAN MESERVE, (Humboldt County
Super. Ct. No. CR1501663)
Defendant and Appellant.

Appellant Kailan Meserve was convicted of over a dozen offenses after
he sexually assaulted two female casual acquaintances. On appeal, he
contends that he was denied effective assistance of counsel because his trial
attorney abandoned an interlocutory appeal of the denial of his motion to
dismiss and failed to call a witness to testify at trial. He also contends that
the prosecutor committed prosecutorial misconduct in her closing argument,
or alternatively, that his trial attorney’s failure to object to the prosecutor’s
comments constituted ineffective assistance of counsel. We reject all these
contentions and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND

Meserve had sexual relations with Jane Doe 2 on one occasion in
December 2013 and with Jane Doe 1 on a different occasion about a year

1
later. The details of these encounters are not material to the disposition of
this appeal, and we therefore do not recount them. Suffice it to say, the
central issue at trial was whether the sexual relations were consensual. The
two women maintained they were not, while Meserve maintained they were.
A felony complaint against Meserve was filed in the spring of 2015. It
alleged 19 counts and two special allegations, one that the offenses against
Doe 1 occurred during a kidnapping and another that the offenses against
Doe 2 occurred during a burglary.1 After the preliminary hearing, the
magistrate concluded there was sufficient evidence to hold Meserve to answer
for most of the charges, but not count 5, which alleged that Meserve sexually
penetrated Doe 1 with a foreign object (§ 289, subd. (a)(1)), or count 15, one of
five counts alleging that Meserve committed forcible oral copulation against
Doe 2 (§ 288a, subd. (c)(2)(A)).
An information was subsequently filed charging Meserve with 16
counts. The first seven counts related to Doe 1, and the remaining nine
counts related to Doe 2. The charged offenses were composed of one count of
kidnapping to commit a felony (§ 209, subd. (b)(1)) [count 1]; three counts of
rape (§ 261, subd. (a)(2)) [counts 2, 8, and 9]; six counts of forcible oral
copulation (§ 288a, subd. (c)(2)) [counts 3, 4, and 10 through 13]; two counts
of forcible penetration by a foreign object (§ 289, subd. (a)(1)) [counts 5 and
16]; one count of assault by means likely to cause great bodily injury (§ 245,
subd. (a)(1)) [count 6]; one count of criminal threats (§ 422) [count 7]; and two
counts of sexual battery (§ 243.4, subd. (a)) [counts 14 and 15].
Instead of alleging five counts of forcible oral copulation against Doe 2
as had the complaint, the information alleged only four such counts (counts

1The special allegations were made under Penal Code section 667.61,
subdivision (a). All further statutory references are to the Penal Code.

2
10 through 13). The information reiterated the special allegations that the
offenses against Doe 1 were committed during a kidnapping and that the
offenses against Doe 2 were committed during a burglary. It also reiterated
count 5, alleging that Meserve was guilty of sexual penetration by a foreign
object, even though the magistrate had rejected that charge.
Meserve brought a motion to dismiss the information. The prosecutor
opposed the motion but conceded that count 5 and the second special
allegation—alleging that the offenses involving Doe 2 were committed during
a burglary—should be dismissed. The trial court dismissed these allegations
but otherwise denied the motion. Meserve’s trial counsel filed a notice of
appeal of the ruling, but the appeal was abandoned two weeks later.
The jury did not find Meserve guilty of kidnapping to commit a felony
(count 1), instead finding him guilty of the lesser included offense of false
imprisonment under section 236. The jury also found not true the remaining
special allegation that the offenses against Doe 1 occurred during a
kidnapping, but it found Meserve guilty of the remaining counts (counts 2
through 4 and 6 through 16).
The trial court imposed a total term of 23 years in prison, composed of
consecutive terms of six years each for counts 2, 8, and 9, one year for
count 6, and four years for count 7. It imposed concurrent terms of two years
for count 1, six years each for counts 3, 4, and 10 through 13, and three years
each for counts 14 through 16.
II.
DISCUSSION
A. The General Law Governing Claims of Ineffective Assistance of
Counsel
The law governing claims of ineffective assistance of counsel is well-
settled. The federal and state Constitutions guarantee criminal defendants

3
the right to adequate representation by counsel. (U.S. Const., 6th Amend.;
Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875.) To
prevail on a claim of ineffective assistance of counsel, a defendant must show
both “that counsel’s performance was deficient,” such that “counsel was not
functioning as the ‘counsel’ [constitutionally] guaranteed,” and “that the
deficient performance prejudiced the defense.” (Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th
659, 674.)
To establish the first Strickland prong, a defendant must show that
“counsel’s performance . . . fell below an objective standard of reasonableness
under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986,
1009 (Mai).) In evaluating this prong, “a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance.” (Ibid.) “ ‘ “Tactical
errors are generally not deemed reversible, and counsel’s decisionmaking
must be evaluated in the context of the available facts.” ’ ” (People v. Stanley
(2006) 39 Cal.4th 913, 954.) Because the presumption of counsel’s
competence can typically be rebutted only with evidence outside the record, a
reversal on direct appeal is not warranted unless “(1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or
(3) there simply could be no satisfactory explanation. All other claims of
ineffective assistance [of counsel] are more appropriately resolved in a habeas
corpus proceeding.” (Mai, at p. 1009.)
To establish the second Strickland prong, a defendant must
demonstrate “resulting prejudice, i.e., a reasonable probability that, but for
counsel’s deficient performance, the outcome of the proceeding would have

4
been different.” (Mai, supra, 57 Cal.4th at p. 1009.) “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra, 466 U.S. at p. 694.) “A defendant must prove
prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ ”
(People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
B. Counsel Was Not Ineffective for Abandoning the Appeal of the
Denial of Meserve’s Motion to Dismiss.
Meserve first contends that his trial counsel was ineffective for
abandoning the interlocutory appeal of the trial court’s denial of the motion
to dismiss. Specifically, Meserve argues that “the appeal had merit” because
a witness was improperly allowed to testify at the preliminary hearing about
her beliefs, the trial court abdicated its responsibility to resolve conflicts in
ruling on the motion to dismiss, and the information included two counts that
had been rejected by the magistrate after the preliminary hearing. None of
these arguments are persuasive.
1. Additional background
The only witness to testify at the preliminary hearing was Humboldt
County District Attorney Investigator Kyla Baxley. She had interviewed
Doe 1 and Doe 2, and she testified about what they told her in those
interviews.2
Baxley testified that during her interview with Doe 1, Doe 1 told her
that Meserve engaged in sexual activity with her without her consent. Doe 1
reported that Meserve had sexual intercourse with her, orally copulated her,
and forced her to orally copulate him. Doe 1 told Baxley that Meserve had

2Hearsay evidence from certain sworn law enforcement officers is
admissible at preliminary hearings. (Correa v. Superior Court (2002)
27 Cal.4th 444, 451–452.)

5
called her “his bitch,” threatened to “freeze [her] and feed [her] to animals,”
and choked her during intercourse. Doe 1 said she felt panicked and scared
during the encounter.
Baxley testified that during her interview with Doe 2, Doe 2 also said
Meserve engaged in sexual activity with her without her consent. Doe 2
reported that she was asleep at a friend’s house on the night of the encounter,
and Meserve woke her, penetrated her with his penis, and forced her to orally
copulate him. She told Baxley that she fell back asleep after the assault, but
Meserve returned and again assaulted her by penetrating her again with his
penis, making her again orally copulate him, and penetrating her vagina
with his fingers.
Baxley also testified about a pretext phone call that Doe 2 made to
Meserve, during which Meserve apologized to Doe 2 if anything had
happened between them, told Doe 2 that she had invited him to the loft area
where the sexual encounter occurred, and stated that he remembered the
encounter as consensual.
As we have mentioned, after the preliminary hearing and the
magistrate’s ruling, the prosecution filed an information, and Meserve moved
to dismiss it. In ruling on the motion to dismiss, the trial court commented,
“I will simply observe to you that while I may wonder about many of the
things that have been referred to or described by the evidence here, that’s not
my role at this point to try and sort those out. I agree that there are
layerings, shadings, and nuances here that are going to need to be resolved
by the trier of fact, and I will leave it there.”
2. Analysis
In arguing that his trial counsel’s abandonment of the appeal
constituted ineffective assistance, Meserve first argues that “[t]he

6
preliminary hearing transcript is littered with instances when Investigator
Baxley testifie[d] about her beliefs and impressions about what Jane Doe 1
and Jane Doe 2 complained about. But, these beliefs and impressions do not
rise above speculation such that the state of the evidence makes issuing a
holding order unwarranted. . . . The problem is exacerbated because the . . .
court avoided its duty to scrutinize the testimony to separate guess work and
conjecture from real, reliable evidence.” We perceive no error.
To begin with, the Attorney General correctly points out that Meserve
had no right to appeal the denial of the motion to dismiss. Instead, the
available remedy was a petition for an extraordinary writ, which had to be
filed within 15 days of the trial court’s ruling. (§ 999a; Hampton v. Superior
Court (1952) 38 Cal.2d 652, 656.) Counsel’s decision to abandon an improper
appeal cannot be considered deficient under prevailing professional norms.
Furthermore, Meserve’s argument fails even assuming the appeal
would have been construed as a writ. A court reviewing a magistrate’s ruling
on a motion to dismiss asks not whether the preliminary-hearing evidence is
sufficient to support a conviction but “only ‘whether the evidence is such that
“a reasonable person could harbor a strong suspicion of the defendant’s
guilt.” ’ [Citation.] This is an ‘exceedingly low’ standard.” (People v. Superior
Court (Sahlolbei) (2017) 3 Cal.5th 230, 245; Rideout v. Superior Court (1967)
67 Cal.2d 471, 474.) “Every legitimate inference that may be drawn from the
evidence must be drawn in favor of the information” (Rideout, at p. 474),
meaning that “an information ‘ “should be set aside only when there is a total
absence of evidence to support a necessary element of the offense
charged.” ’ ” (People v. Black (2017) 8 Cal.App.5th 889, 898.)
Baxley’s testimony provided more than enough evidentiary support for
the non-dismissed counts. Meserve’s argument that Baxley’s testimony was

7
speculative because it included her “beliefs” about Doe 1’s and Doe 2’s stories
is specious. The challenged statements plainly referred to Baxley’s
recollection of what Does 1 and 2 told her and cannot reasonably be construed
as reflecting Baxley’s beliefs about the truth of the actual events Does 1 and 2
described.3 Furthermore, Meserve points to no specific remarks by Baxley
that were both material and unsupported by other testimony sufficiently
establishing probable cause for the undismissed charges.
We also reject Meserve’s claim that the trial court’s comments in ruling
on the motion to dismiss reflected an improper refusal to decide the issues.
The court’s duty was to determine only whether there was probable cause to
believe that Meserve committed the charged offenses, not whether he was
guilty. (Rideout v. Superior Court, supra, 67 Cal.2d at p. 474.) There was
nothing improper about the court’s acknowledging that the evidence was
mixed and ultimately needed to be weighed by the jury.
Lastly, we reject Meserve’s argument that the appeal was meritorious
since two counts remained in the information even though the magistrate
rejected them after the preliminary hearing. Although Meserve is correct
that one of the five counts of forcible oral copulation against Doe 2 originally
alleged was dismissed, the information contained only the four such counts
that remained. In other words, the information did not in fact reallege the
fifth count of forcible oral copulation against Doe 2 that the magistrate had
rejected.

3 The statements included Baxley’s belief about the location of Doe 1’s
home, her impression about what Doe 1 told another peace officer, her belief
“that [Meserve] forced [Doe 2] to suck his penis” and later testimony
clarifying that Doe 2 told her that Meserve made her orally copulate him, and
her beliefs about what Doe 2 told her had happened after Meserve left and
then returned.

8
 As for the second dismissed count, which alleged sexual penetration by
a foreign object against Doe 1, Meserve is correct that the information
realleged this count (again as count 5) even though the magistrate had
rejected it. But the trial court recognized that the count was improperly
realleged and granted Meserve’s motion to dismiss it. Thus, neither of the
two challenged counts remained at issue when counsel appealed from the
ruling on the motion to dismiss.4 Counsel was not ineffective for abandoning
the appeal for reasons related to these two counts, because Meserve had
already obtained the relief he sought.
In short, even if we assume that the appeal would have been construed
as a writ petition, Meserve’s claim fails. His attorney did not provide
ineffective assistance by abandoning the appeal because there was no
reasonable likelihood that the appellate court, drawing all favorable
inferences in favor of the ruling on the motion to dismiss, would grant the
petition. (See People v. Plengsangtip (2007) 148 Cal.App.4th 825, 835.)
C. Counsel Was Not Ineffective for Failing to Call a Witness to
Testify.
After her sexual encounter with Meserve, Doe 1 was interviewed by an
employee of the Humboldt County Sheriff’s Office whom she identified as
“Deputy Hass.” Meserve argues that his trial counsel was ineffective for not
calling Deputy Hass to testify at trial because the deputy would have

4 Because count 5 was dismissed before trial, we also reject Meserve’s
cursory argument that “[a]though the Court dismissed Count 5 at sentencing
. . . , the damage to Meserve’s right to due process was already done because
Jane Doe 1 testified at trial that Meserve penetrated her vagina with his
fingers.” At sentencing, the trial court merely confirmed that count 5 had
previously been dismissed. Thus, any testimony at trial about Meserve’s
digital penetration had nothing to do with count 5, which was no longer at
issue.

9
“contradicted and impeached [Doe 1] in relation to critical parts of her
testimony.” We are not persuaded.
As we have explained, “a reviewing court defers to counsel’s reasonable
tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance.” (Mai, supra, 57 Cal.4th at
p. 1009.) The decision not to call Deputy Hass could have been a reasonable
tactical decision. For example, Meserve’s trial counsel may have wanted to
avoid giving the prosecution an opportunity to call attention to other, more
detrimental, aspects of Doe 1’s interview with Deputy Hass. In fact, the
record demonstrates that Meserve’s counsel tactically used the fact that no
peace officer other than Baxley testified: During closing argument, counsel
repeatedly suggested that the prosecutor’s case was weak by remarking
about the lack of officers who testified for the prosecution. Thus, Meserve
fails to demonstrate on direct appeal that he received ineffective assistance.
(See ibid.)
D. The Prosecutor’s Comments During Oral Argument Did Not
Constitute Prejudicial Error.
In closing argument, the prosecutor made two comments to which
Meserve now objects. First, she said society treats rape victims poorly.
Second, she said stress could have caused certain gaps in Doe 1’s and Doe 2’s
memories, giving as an example her father’s forgetfulness about what he was
told during a doctor’s visit when he was diagnosed with cancer. Meserve
argues that these comments “appeal[ed] to the jury’s sympathy” and thereby
“carried a substantial and unwarranted risk” that the jury would decide the
case based on sympathy rather than the evidence. Again, we are not
persuaded.
Prosecutorial “error occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier

10
of fact to convict.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) When a claim of
prosecutorial error “ ‘focuses upon comments made by the prosecutor before
the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.)
Here, it is not reasonably likely that the jury construed the prosecutor’s
comments in an objectionable fashion. The comments were fleeting, part of
an otherwise lengthy argument, did not invoke animosity towards Meserve,
and did not attempt to arouse sympathy for Does 1 and 2 by asking the jury
to view the case through their eyes. (See People v. Young (2019) 7 Cal.5th
905, 933.) The comment that society treats rape victims poorly was
extremely general. As for the prosecutor’s comment that her father could not
remember all the details about learning of his cancer diagnosis, it was
neither inflammatory nor controversial. None of these comments were likely
to be construed or applied in a way that would have unfairly harmed
Meserve. Our conclusion is bolstered by the fact that the jury was expressly
instructed not to “let bias, sympathy, prejudice, or public opinion influence
[its] decision,” an instruction we must presume was followed. (See People v.
Daveggio and Michaud, supra, 4 Cal.5th at p. 857.)
Even if we were to assume that the prosecutor’s comments could have
been construed in an objectionable manner, we would conclude that the error
was harmless. Comments made in closing argument are prejudicial only if it
is reasonably probable that a result more favorable to the defendant would

11
have been reached in the absence of the error. (People v. Wallace (2008)
44 Cal.4th 1032, 1070–1071; see People v. Watson (1956) 46 Cal.2d 818, 836.)
Federal constitutional error is harmless if, beyond a reasonable doubt, the
error did not affect the outcome of the trial. (People v. Cook (2006) 39 Cal.4th
566, 608; see Chapman v. California (1967) 386 U.S. 18, 24.) Here, we have
no trouble concluding that the complained-of comments were not prejudicial
under either standard, given they were made in passing and were mild in
nature. Accordingly, we necessarily also reject Meserve’s back-up argument
that his trial counsel was ineffective for failing to object to the comments.
(See Strickland, supra, 466 U.S. at p. 697 [an appellate court “need not
determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies”].)
III.
DISPOSITION
The judgment is affirmed.

12
 _________________________
Humes, P.J.

We concur:

_________________________
Banke, J.

_________________________
Sanchez, J.

People v. Meserve, A148944

13