Opinion
A166021
05-29-2024
THE PEOPLE, Plaintiff and Respondent, v. DEMARCO ROBERT AYERS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 21-CR-002255)
HITE, J. [*]
The trial court sentenced Demarco Ayers to a lengthy term of imprisonment after a jury convicted him of several felonies related to the sexual abuse of his stepdaughter Jane Doe, including oral copulation with a child 10 years of age or younger. (Pen. Code, § 288.7 subd. (b).) In this appeal, Ayers raises four claims: (1) trial court's error in denying his motion for acquittal; (2) ineffective assistance of counsel (IAC) for trial counsel's failure to move for a new trial; (3) trial court's error in denying his motion to exclude expert testimony concerning Child Sexual Assault Accommodation Syndrome (CSAAS); and (4) prosecutorial misconduct during closing argument and IAC for trial counsel's failure to object. We reject these claims but note that the abstract of judgment does not correctly reflect the sentence pronounced by the trial court. Accordingly, we direct the trial court to modify the abstract of judgment and affirm the judgment in all other respects.
Undesignated statutory references are to the Penal Code.
In response to Ayers's petition for writ of habeas corpus in case No. A168480, we have issued a separate order to show cause, returnable before the trial court.
We provide an overview of the relevant proceedings here, adding more detail as needed in the discussion of Ayer's specific claims.
The prosecution charged Ayers by information with five felonies: oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b), counts one and two); committing a lewd act upon a child under 14 years of age (§ 288, subd. (a), counts three and four); and exhibiting harmful material to a minor with sexual intent (§ 288.2, subd. (a)(2), count five). In an alternative charge to counts one through four, the prosecution also charged Ayers with continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a), count 6). The information further alleged that Ayers was subject to the sentencing enhancements of section 667.6, subdivisions (c) and (d), providing for full, separate, and consecutive prison terms where the defendant harmed the same victim on multiple occasions.
Ayers moved in limine to exclude the testimony of any witness proffered as an expert in CSAAS, and requested a hearing under Evidence Code section 402 to determine the admissibility of any such proffered testimony. At the hearing on the motion in limine, the prosecutor assured the court and defense counsel that the prosecution's CSAAS expert had never met the victim and had no knowledge of the facts of the case. Rather, the expert would generally "talk about the concepts of CSAAS." The trial court denied both the motion to exclude and the request for an admissibility hearing.
In the prosecution's case-in-chief, statements made by Jane Doe were the principal evidence concerning Ayers's charged conduct. Oakland Police Officer Soledad Ramirez testified to what Doe told her on the night police responded to the initial call reporting Ayers's sexual abuse. The prosecutor played for the jury a video recording of Doe's subsequent interview at the Child Abuse Listening, Interviewing and Coordination Center (CALICO). A reader and the trial attorneys read for the jury the testimony Doe gave in Ayers's preliminary hearing. And Doe herself testified at trial.
Once the prosecution rested, Ayers moved under section 1118.1 for entry of a judgment of acquittal, arguing that "Doe has said different things at different times concerning [the] allegations . . . against Mr. Ayers" and that she had a motive to fabricate those allegations. The trial court denied the motion, observing that "after a lengthy cross-examination, despite many inconsistencies, one thing is very clear[: ] Jane Doe says this did happen, [Ayers] did touch me."
After the defense presented its own case-in-chief, the jury found Ayers guilty of counts one through five and the trial court sentenced Ayers to 40 years, eight months, to life in prison. There was no motion for a new trial.
DISCUSSION
I. No Error in Denying the Motion for Acquittal
Ayers contends the trial court erred in denying his motion for acquittal on all five counts at the end of the prosecution's case-in-chief. We disagree.
Upon the defendant's timely motion, a motion to enter "judgment of acquittal of one or more of the offenses charged in the accusatory pleading" must be granted "if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." (§ 1118.1.) In order to make this determination, the trial court inquires as to" '" 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.'" '" (People v. Sherman (2022) 86 Cal.App.5th 402, 410.)"' "Where the section 1118.1 motion is made at the close of the prosecution's case-in-chief, the sufficiency of the evidence is tested as it stood at that point." '" (Ibid.)
We review independently the trial court's determination that the evidence was sufficient to support a conviction. (People v. Sherman, supra, 86 Cal.App.5th at p. 410.) In so doing, we "apply the 'substantial evidence' test," reviewing" 'the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Cuevas (1995) 12 Cal.4th 252, 260, italics omitted.) Under this standard, it is the defendant's "enormous burden" to demonstrate that the evidence does not support the conviction. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
Here, Ayers has failed to carry that burden. In his opening brief, he highlights discrepancies between the trial testimony Doe gave when she was eleven years old, on the one hand, and her previous statements to the police, to the interviewer at CALICO, and during Ayers's preliminary hearing, on the other. Ayers also contrasts Doe's testimony with the respective testimonies of Doe's mother and grandmother, which conflict with Doe's accounts of where some of the sexual abuse took place and whether Doe was six, eight, or nine years old when various incidents occurred. And Ayers suggests that Doe's testimony alleging that Ayers showed pornography to her on his phone was contradicted by the testimony of police technician Danny Ebarvia, who testified that when he searched Ayers's phone for references to "porn," the "cookies" he found post-dated July 12, 2020-after Doe's visits to Ayers had ceased. Finally, Ayers argues that Doe "was capable of sophisticated fabrication."
Notably, Ayers does not argue that there is a dearth of evidence for any" '" 'element of the offense charged.'" '" (People v. Sherman, supra, 86 Cal.App.5th at p. 410.) He only attacks the credibility of the complaining witness by pointing to other, contrary evidence that might cast doubt on the accuracy of her testimony. First, none of this contrary evidence is inconsistent with the conclusion that Ayers committed the charged acts. Second, this argument effectively asks the appellate court to"' "reweigh evidence or reevaluate a witness's credibility"' "-precisely the thing we cannot do under the operative standard of review. (People v. Ramirez (2022) 13 Cal.5th 997, 1118.)
Finally, Ayers's reliance on People v. Williamson (1984) 161 Cal.App.3d 336 is misplaced. In that case, the 17 year old complaining witness accused an erstwhile father figure of rape, testifying "variously, (1) that she couldn't see her assailant's face, or recognize his voice, (2) she kept her eyes closed most of the time and when she occasionally opened them she couldn't see because 'it was too dark,' (3) she was able to see his 'profile from the waist up,' (4) she couldn't see his body; 'it just felt like [the defendant]," [the defendant's] body 'feels different,' (5) she never saw 'any portion of the outline of [the man's] face,' (6) she never saw 'this person who was doing this act,' and (7) he had the odor of beer and cigarettes on his breath, as [the defendant] sometimes did." (Id. at pp. 340-341.) Thus, the only evidence of identity was a vague "feel[ing]" of the assailant's body and the odor of beer and cigarettes. This is readily distinguishable from the present case, where 11-year-old Doe unambiguously identified Ayers and specified the acts he committed, notwithstanding the young witness's apparent trouble accurately recalling the details of the traumatic events that occurred when she was six, eight, or nine years of age.
For these reasons, Ayers has failed to demonstrate any error in the denial of his motion for acquittal.
II. No IAC in Electing Not to Move for a New Trial
Ayers argues that his trial counsel was constitutionally ineffective for failing to move for a new trial. We disagree.
To prevail on an IAC claim, the defendant must prove: (1) counsel's performance fell below the objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice-that is, in the absence of counsel's deficiencies, there is a reasonably probability a more favorable outcome would have resulted. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
If the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation for counsel's performance. (People v. Carter (2005) 36 Cal.4th 1114, 1189.) We presume counsel's performance fell within the wide range of reasonable professional competence-in other words, that counsel's actions and inactions, under the circumstances," 'can be explained as a matter of sound trial strategy.'" (Ibid.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice," then the appellate court may do so. (Strickland v. Washington, supra, 466 U.S. at pp. 671, 697.)
Here, there is no reasonable probability that a motion for a new trial would have yielded a more favorable outcome for Ayers. Under section 1181, subdivision (6), a new trial may be granted "When the verdict or finding is contrary to law or evidence . . . ." But as we have already observed, there was no error in the trial court's conclusion that substantial evidence supported the charges. And while it is true, as Ayers notes, that a trial court ruling on a motion for new trial has additional powers" 'to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact,'" the record does not indicate that the trial court here would have been inclined to exercise those powers. (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.)
Ayers makes much of the trial court's remark that the motion for acquittal was" 'a close call,'" but it does not follow from this that a motion for a new trial would have tipped the scales in Ayers's favor. In ruling on the motion for acquittal, the trial court inquired as to whether the evidence was sufficient to support a conviction. It cited the complaining witness's age- "anywhere from six to nine years old . . . at the time the allegations have been said to have occurred"-as a reason why the inconsistencies in her testimony did not render the evidence insufficient. Thus, if the trial court made any comment on Doe's credibility regarding the charged conduct, the comment was a positive one. There is no reason to believe, then, that the trial court would have made an adverse credibility determination on a motion for a new trial. Consequently, Ayers cannot show that he was prejudiced by his trial counsel's election not to file a new motion.
III. No Abuse of Discretion in Admitting CSAAS Testimony
Ayers argues that the trial court abused its discretion in admitting the testimony of the prosecution's CSAAS expert, Dr. Blake Carmichael. Specifically, he contends that the evidence was more prejudicial than probative because the testimony was "not outside the jurors' common experience," and he claims that the testimony deprived him of his right to due process because Dr. Carmichael "vouch[ed]" for Doe. We disagree.
In child sexual abuse cases, expert testimony on CSAAS has been allowed for decades in California. (People v. Munch (2020) 52 Cal.App.5th 464, 466 (Munch).) "CSAAS evidence 'is admissible to rehabilitate [a] witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation.' [Citation.]' "Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior."' [Citation.] Such evidence 'is not admissible to prove that the complaining witness has in fact been sexually abused.' [Citation.] 'The expert is not allowed to give an opinion on whether a witness is telling the truth.'" (Id. at p. 468.)
Munch discusses the validity and necessity of CSAAS evidence in child abuse cases and affirms the reasoning in the seminal case, People v. McAlpin (1991) 53 Cal.3d 1289.
We are unpersuaded by Ayers's contention that Dr. Carmichael's testimony is irrelevant in light of the purported common knowledge that children often do not provide linear or coherent accounts of an event. In Munch, the Second District rejected a similar argument and reaffirmed our Supreme Court's holding in McAlpin regarding the necessity and validity of CSAAS evidence in disabusing "commonly held misconceptions . . . ." (Munch, supra, 52 Cal.App.5th at p. 468.) In fact, Dr. Carmichael informed the jury about the general concepts of CSAAS and explained why children who experience abuse "do deny or [do] not want to talk about [the abuse]." Ayers complains that Dr. Carmichael's testimony employed common-knowledge "adult" examples like surviving an earthquake, but these adult examples were analogies aimed at communicating to the jury of adult laypersons the expert's more technical knowledge of child psychology.
As for the contention that Dr. Carmichael impermissibly "vouch[ed]" for Doe, Ayers finds no support in the record or the caselaw. Dr. Carmichael did not relay any conclusion as to whether Doe was telling the truth about being sexually abused by Ayers. Ayers cites no portion of Dr. Carmichael's testimony that could be plausibly construed as vouching for Doe, and as the Attorney General notes, the cases where appellate courts have found such vouching are distinguishable. In People v. Lapenias (2021) 67 Cal.App.5th 162, 179-180, People v. Wilson (2019) 33 Cal.App.5th 559, 568-570, People v. Julian (2019) 34 Cal.App.5th 878, 886, the experts testified to how infrequently children lie about being sexually abused, but Dr. Carmichael offered no such testimony. (Cf. People v. Sedano (2023) 88 Cal.App.5th 474, 481.)
In sum, Ayers has adduced no error in the admission of Dr. Carmichael's testimony.
IV. Forfeiture of Prosecutorial Misconduct Claim
Ayers contends the prosecutor committed misconduct in her closing argument by telling jurors they could not consider count six-the alternative charge to counts one through four-unless they had already found Ayers not guilty (or else failed to reach a verdict) on the first four counts. According to Ayers, this was Kurtzman error: forbidding the jury to consider lesser counts until greater counts had been decided. (See People v. Kurtzman (1988) 46 Cal.3d 322, 335.).
However, "[i]t is settled that, following a jury trial, a claim of misconduct is not cognizable on appeal absent a timely objection if an objection and admonition would have cured the harm." (People v. Scott (1997) 15 Cal.4th 1188, 1217.) We may excuse a defendant's failure to object and request for admonition only when an objection would have been futile or an admonition ineffective. (People v. Fayed (2020) 9 Cal.5th 147, 204.) Here, there was no objection and the record bears no indication that an objection would have been futile or an admonition ineffective. We therefore conclude that the claim is forfeited.
While we recognize our ability to exercise our discretion to reach the merits of this claim-see, e.g., People v. Anderson (2020) 9 Cal.5th 946, 963, People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525, and People v. Denard (2015) 242 Cal.App.4th 1012, 1020-we decline to do so in this instance for the same reasons underlying our conclusion that counsel was not ineffective for failing to object.
Further, we reject Ayers's claim that counsel was constitutionally ineffective for failing to object. As we have already observed, the requisite showing of deficient performance cannot be made unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation for counsel's performance. (People v. Carter, supra, 36 Cal.4th at p. 1189.) Here, counsel was not asked for any explanation and, as respondent notes, the decision not to object could have been part of counsel's trial strategy. An objection and curative admonition might have caused the jurors to consider the easier-to-prove count six before addressing counts one through four. And defense counsel might have believed the jury would ultimately find Ayers not guilty of counts one through four, while regarding count six as a closer question. Under those circumstances, defense counsel might prefer the jurors to spend time contemplating the various ways in which the prosecution had failed to prove counts one through four, before those jurors proceeded to consider count six; such jurors might be less likely to credit the prosecution's evidence and arguments concerning the closer question of count six. In sum, defense counsel could have reasonably believed that objecting would reduce Ayers's chances of a complete acquittal. For that reason, we conclude that counsel was not ineffective.
V. Correcting the Abstract of Judgment
As the Attorney General contends-and we agree-the abstract of judgment must be amended. "When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement," the appellate "court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.) At the sentencing hearing, the trial court imposed a term of imprisonment of 40 years, eight months, to life in prison; however, the sentence recorded in the abstract of judgment is 38 years, 10 months, to life in prison. Therefore, the abstract of the judgment must be corrected to reflect the sentence imposed.
DISPOSITION
The judgment of conviction is affirmed, but the matter is remanded with instructions for the trial court to prepare an amended abstract of judgment, reflecting Ayers's sentence of 40 years, eight months, to life in prison. The trial court shall then forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation, with a copy being sent to appellant's current counsel of record.
We concur: BROWN, P. J., GOLDMAN, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.