Opinion
C080869
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY DALE BAKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F08237)
Defendant Gary Dale Baker appeals from his convictions of rape, burglary, assault, and other sexual offenses. He contends (1) the trial court erred when it refused to grant a continuance to allow defense counsel time to find a witness to authenticate a videotaped interview of the victim; (2) he was denied the effective assistance of counsel; (3) the trial court admitted inadmissible hearsay evidence; (4) there were errors in the discovery process; (5) he was denied due process of law; (6) the prosecutor committed prejudicial misconduct; (7) there is a lack of substantial evidence to support the verdicts; and (8) his sentence is unconstitutionally disproportionate to his crimes.
We affirm the judgment.
FACTS AND PROCEEDINGS
The victim, Jane Doe, suffered a stroke in 2009 at the age of 74. The stroke left her with expressive and receptive aphasia, which severely limits her ability to communicate. She can answer "yes" or "no" questions, and she can use one word to communicate, such as "brother," "doctor," and "teeth." She can point at pictures or write what she was trying to say. She also uses body gestures to express herself. But she repeats phrases, uses words improperly, and says things that do not respond correctly to a question or accurately express herself. The trial court found Doe was not competent to testify.
In 2010, Doe lived by herself in a senior apartment complex. Defendant, a police officer of over 20 years, was assigned to an area that included Doe's complex. Residents of the complex recognized him. Since 2006, they saw him in his patrol car or around the property about twice a month either in uniform or plain clothes.
At this point, we note that defendant's statement of facts in his opening brief is inadequate. It consists of findings made by a psychiatrist who interviewed Doe and legal argument. The statement does not address the facts of the crimes. For those, we take our lead from the People's brief, and we recite only those facts necessary for our purposes.
1. November 25, 2010 incident
On November 25, 2010, Thanksgiving Day, Doe's son Joseph went to Doe's apartment and found Doe crying and upset. She repeated the words "rape" and "police." Joseph took her back to his house. Along the way, Joseph asked Doe who got raped. She said, "police rape, police rape." When Joseph asked if she was sure that a police officer raped her, she said, "Yes."
At Joseph's home, Joseph's daughter Victoria asked Doe who was raped. Pointing both thumbs at herself, Doe said, "me." Victoria asked when it happened. Doe said, "today." When Victoria asked Doe who raped her, Doe said, "police" twice. She pulled out a picture of Victoria's uncle from her purse and pointed to it. The uncle is a police officer, and in the photo, he was wearing his uniform.
Doe pulled out of her purse a Ziplock bag containing black nylons and gave it to Victoria (who later gave it to police). Doe said, "My own," and pointed to her crotch. Doe put both hands on her breasts, squeezed, and said it hurt. She pointed to her teeth and said it hurt. She held one hand in a fist in front of her mouth and put the other hand behind her head, and she pushed her head toward the fist. She moved the fist back and forth toward her mouth. She held her hands up approximately 10 inches apart and said, "too big, too big." She pointed to her crotch and said, "It hurt."
That evening, Sheri Patrick, a nurse practitioner and an expert in medical forensic examinations, completed a sexual assault forensic examination on Doe. Doe had a bruise on the lower left of her labia minora and a bruise next to her urethra. There was petechia (little red lesions) on Doe's vagina. Doe was missing tissue in the shape of a square on the left lateral wall of her vagina. She also had petechia in her rectal tissue. Patrick collected evidence by taking swabs of the affected areas.
Patrick testified that her findings were consistent with penetrating genital trauma. All of the bruised areas and the area where tissue was missing would encounter a penis if it were inserted into the vagina, and the injuries were of the type commonly seen in cases of sexual assault. In all the exams Patrick had performed on women - about 200 sexual assault exams and 1,500 non-assault exams - she had never seen a woman who had a piece of tissue missing from her vagina.
Forensic investigators found biological evidence on towels in Doe's apartment. Detective Joyce Thorgrimson was assigned to investigate the case. She obtained a DNA sample from Doe's ex-husband. At the end of 2011, she suspended her investigation, having identified no suspects.
2. September 20, 2012 incident
On September 20, 2012, Doe's son Gerald checked on Doe at her apartment. Doe was hysterical and excited. She said "same, same," and "police." She used her fingers to draw a star-shaped badge on her chest. She demonstrated to Gerald what had happened. She placed her hands on her breasts and made a pinching and grabbing motion. She pointed her finger to her mouth, then cupped her fingers like she was holding something. Doe repeatedly said, "no" while she made these actions. She pointed to a bedroom while repeatedly saying, "no." Gerald asked her what happened in the bedroom. Doe pointed to her vagina several times and kept saying, "no." Doe showed Gerald a paper bag containing her underwear. An officer later took it for evidence.
Joseph arrived, and he asked Doe if she had been raped again and by whom. Doe was upset and said, "the same," "the same," and "police." She said, "black," "police," and "the same." Joseph thought Doe was reliving the 2010 incident. He stayed at Doe's house that night. In the morning, Doe called him into the bathroom and pointed in the toilet. He saw what looked like semen in the toilet.
Nurse Sheri Patrick performed another sexual assault forensic examination on Doe. She found a four-millimeter laceration on Doe's right labial fold. Doe had bruises in and around her urethra, both sides of her vestibule, and on her vagina. Patrick again collected evidence.
Patrick testified that her findings were consistent with penetrating genital trauma. The 2012 exam showed more severe findings than the 2010 exam, and the 2010 exam findings were the most severe she had ever seen.
Officers collected Doe's clothing, bed sheet, white tissue paper, and photographs taken by Victoria of bruises on Doe's body. They collected biological evidence from a mattress. They also arranged for Doe to be interviewed at the Special Assault Forensic Evaluation (SAFE) Center. A recording of that interview is at issue in this appeal.
3. December 11, 2012 incident
On the morning of December 11, 2012, Luis Burwell, a maintenance technician at Doe's apartment complex, heard Doe yelling, "police, police." She was visibly upset, frantic, and hysterical. Burwell walked her back to her apartment and asked if there was someone in her apartment. Doe said yes, and "brother" and "black man." Burwell asked if it was the same person from last time, and Doe said, "yes, yes, the same man from last time . . . black man, black man."
Inside her apartment, Doe demonstrated what had happened. She led Burwell to the bathroom. She gestured that she was doing her hair in front of the bathroom mirror. She grabbed her nightgown on the back and pulled it upward. Then she grabbed Burwell by the wrist, and pulled him to the living room. She stopped briefly at the front door when Burwell asked how the assailant got inside, and she pointed to the door knob.
She pulled Burwell into the living room and pushed him down on the couch. She moved his knees apart and grabbed between his legs, making a thrusting motion. She also mimicked someone pulling down her pants. She said, "black man" and "very big" while acting out this demonstration. She also said, "no, no," and that she was too old. When Burwell asked, "what do you mean big," Doe pointed to her crotch. Burwell asked her if the assailant put his penis inside of her. Doe said, "yes."
Doe's family met with Detective Andrew Newby, and he suggested they install a camera. Joseph installed a hunting game camera on Doe's front porch, and he did not tell Doe about it.
4. December 18, 2012 incident
On December 18, 2012, Doe called Joseph upset, and told him, "police," "the same," "here," "today." Joseph went over to Doe's apartment, retrieved the SD card from the camera, and went back to his house to play the video. The video showed defendant coming to Doe's door. Detective Newby went to Joseph's residence and Joseph showed him the video on a desktop computer. The video showed defendant in front of Doe's apartment. Detective Newby recognized defendant. He had known defendant for over 20 years.
5. Defendant's police interviews
Detectives interviewed defendant twice. During the first interview, defendant admitted knowing Doe, but he denied ever having any type of sexual relations or physical contact with her. The interviewing detective administered a buccal swab kit on defendant.
Detectives met with defendant the following day at defendant's request. He said he wanted to clarify his earlier statement because he felt dizzy and "discombobulated" the day before. Defendant stated he and Doe had engaged in consensual sexual activities twice. On both times, they attempted sexual intercourse, but defendant's penis would not fit. He did not ejaculate on the first occasion. At defendant's request, Doe orally copulated him on the second occasion and he ejaculated.
6. DNA evidence
Criminalists performed DNA examinations on the evidence taken from the 2010 and the September 2012 attacks. They found evidence of semen on Doe's nylons from 2010. They obtained a sperm-fraction and a non-sperm fraction from the DNA extracted from the nylons. The sperm fraction was inconclusive, but the non-sperm fraction contained two profiles. The major contributor matched Doe's DNA profile, and the minor contributor matched defendant's DNA profile. DNA extracted from Doe's right breast swab also matched defendant's DNA profile.
Additional analysis of the DNA extracted from the nylons showed a distinct major contributor and several minor contributors. Defendant's DNA profile matched that of the major contributor. Doe's former husband's profile did not match.
For the 2012 case, DNA was extracted from swabs from a mattress. That DNA matched defendant's DNA profile.
7. Verdicts and sentencing
A jury found defendant guilty of two counts of rape, two counts of forcible oral copulation, two counts of sexual battery, two counts of first-degree burglary, and one count of assault during the commission of a burglary with the intent to commit rape. (Pen. Code, §§ 261, subd. (a)(2); 288a, subd. (c)(2); 243.4, subd. (a); 459; 220, subd. (b).) (Unless otherwise stated, statutory section references that follow are to the Penal Code.) The jury found true enhancements for raping and forcing oral copulation on a person who is 65 years of age or older, and for committing the 2012 rape during the commission of a burglary. (§§ 667.9, subd. (a); 667.61, subds. (d)(4), (e)(2).)
The trial court sentenced defendant to state prison for a total term of 63 years to life, calculated as follows: 25 years to life on the 2012 rape (enhanced for committing the rape during a burglary) plus one year for the victim's age; a consecutive seven years to life for assault during the commission of a burglary; the upper term of four years for the first sexual battery count; one year (one-third the middle term) for the second sexual battery count; the upper term of eight years for the 2010 rape plus four months (one-third the middle term) for the victim's age; the upper term of eight years for the 2010 oral copulation plus four months for the victim's age; and the upper term of eight years for the 2012 oral copulation plus four months for the victim's age. The court stayed sentences on the two burglary counts under section 654.
DISCUSSION
I
Improper Briefing
Defendant's appeal is significantly hampered by his briefing. The briefing does not provide a "summary of the significant facts," in violation of rule 8.204(a)(2)(C) of the California Rules of Court. Instead, it contains a summary of a confidential neuropsychological assessment of Doe. It omits any statement of the facts germane to the crimes.
The briefing also does not support most of its assertions or references "by a citation to the volume and page number of the record where the matter appears," in violation of rule 8.204(a)(1)(C) of the California Rules of Court. On the occasions where defendant attempts to support an assertion by citation to the record, he cites to the reporter's transcript or, problematically, to a "case binder" by volume and page number. No such "case binder" is included in the record filed with this court. Moreover, defendant's citations to pages in the "case binder" do not match the same numbered pages in the reporter's transcript or the court's transcript, as the material found in the corresponding page does not support the assertion in defendant's brief for which he cited the page. Defendant's citations to the "case binder" thus do not constitute citations to the record.
As we will set forth below, these defects result in defendant forfeiting many of his claims of error. "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited." (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.) " 'It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant's contentions on appeal. [Citation.] If no citation "is furnished on a particular point, the court may treat it as waived." ' [Citation.]" (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2018) 19 Cal.App.5th 789, 797.)
When we deem claims of error to be forfeited, we will do so under the authorities just cited and will not recite them as we proceed with the opinion.
II
The SAFE Video
Defendant asserts several claims of error regarding the exclusion from evidence of the video recording of Doe's 2012 interview at the SAFE Center. He claims the trial court abused its discretion and denied him his constitutional rights to due process, to confront witnesses, and to effective representation when it refused to grant counsel a continuance to subpoena the appropriate witness to authenticate the video and when the court excluded the video. He argues the video was relevant evidence that was not unduly prejudicial, and any objections to its admission based on hearsay or privilege were waived. He also claims his trial counsel rendered ineffective assistance when she did not subpoena the appropriate witness to authenticate the video.
We conclude the trial court did not abuse its discretion and any error by counsel regarding admission of the SAFE video was not prejudicial.
A. Background
The People direct us to the relevant facts in the record.
The day after the People finished presenting their rebuttal evidence at trial and the court had begun instructing the jury, defense counsel informed the court that she intended to call Detective Thorgrimson as a witness and ask her one question regarding a statement Doe made in her SAFE interview. According to counsel, "There is a question that is asked of - of Ms. Doe, did he rape you? Her answer, no."
The prosecutor informed counsel that Detective Thorgrimson was not involved in the SAFE interview. The interviewer was Darby Geller, a social worker. Counsel replied, "Oh, my mistake. I thought that was her. It was detective - so that is my mistake and I - I apologize for that."
Defense counsel asked the court to allow her to contact Geller. She said the evidence was critical, and it was her mistake that she did not have Geller ready to testify. The court stated there had been more than adequate opportunity for this evidence to have been prepared, but now it was the last day for any witness to be called. The court said if counsel could have the witness present by 9:30 a.m., it was possible she could testify.
Counsel asked the prosecutor for Geller's contact information, but the prosecutor did not know how to contact the social worker. She did not have Geller's phone number, and Geller no longer worked for the SAFE Center and had never worked for the police department. Counsel again said this was her error: "No one else's error but my own. It's my fault. I think it's ineffective assistance of counsel [not] to present that evidence. [¶] I think we can take a short break to try to solve this."
The court, however, then realized that Geller was not under subpoena. It stated, "So this is - is a witness who's not only not under subpoena by - not under subpoena by either party, and this is the last day of trial. I am not going to continue it so that she can be subpoenaed and brought into court to testify."
As counsel continued to argue for admitting the video, the court asked why she had not played the tape during her case in chief. There had been no discussion by either side about playing the video or even addressing the SAFE interview. Counsel replied, "My - my mistake. My error. [¶] And in truth, I'll tell you I believed it was in the September interview. When I looked at it last night I realized oh, no, it's in the October interview. And so that was just simply my mistake." Counsel nonetheless argued for the court to admit the evidence.
The trial court denied the request. It stated, "I'm gonna deny your request to present any further testimony from the SAFE interview. [¶] You don't have any witnesses under subpoena. You don't have any witnesses outside ready to testify and it is untimely. It is denied."
B. Denial of continuance to admit the video
"When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
The decision whether to grant a continuance rests within the sound discretion of the trial court. (People v. Beames (2007) 40 Cal.4th 907, 920.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]
"Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.] Moreover, the denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. (Ungar v. Sarafite (1964) 376 U.S. 575, 589 .) Although 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality [,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' (Id. at p. 589.) Instead, '[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' (Id. at p. 589; [citation].)" (People v. Beames, supra, 40 Cal.4th at pp. 920-921, italics added.)
"Even in a capital case, if the defendant cannot show he or she has been diligent in securing the attendance of witnesses, or that specific witnesses exist who would present material evidence, '[g]iven the deference necessarily due a state trial judge in regard to the denial or granting of continuances,' the court's ruling denying a continuance does not support a claim of error under the federal Constitution. [Citations.]" (People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040.)
The circumstances surrounding counsel's request for a continuance show the court did not abuse its discretion. Counsel did not show she had exercised due diligence to secure Geller's appearance at trial. She also did not establish that Geller's testimony could be obtained within a reasonable time. She delayed asking for a continuance to introduce evidence until after the close of evidence and the jury was being instructed on the law. She did this even though she had ample time to introduce the video tape during her case in chief. She claimed she mistakenly remembered who the interviewer was when she reviewed the transcripts the night before, but that does not excuse her decision not to introduce the evidence when she had the opportunity. There is no indication counsel made any attempts to contact whomever she thought was necessary to introduce the video tape at any time during trial. Under these circumstances, we cannot say the court was so arbitrary in denying the continuance that it abused its discretion or violated defendant's due process or confrontational rights. This is so even if, as defendant argues, the video was admissible evidence and there were no other objections that could have been raised against admitting it.
C. Ineffective assistance
Defendant claims his trial attorney rendered ineffective assistance by not calling Geller to authenticate the SAFE video for its admission. He argues the video was important because it was the only evidence where Doe, isolated away from her son, stated she was never harmed and never forced into sex with defendant. He asserts the "average member of the American Bar Association" would have called Geller to testify, and counsel's not calling her was prejudicial.
To establish ineffective assistance of counsel, defendant must show "both that his counsel provided deficient assistance and that there was prejudice as a result.
"To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.' ([Strickland v. Washington (1984)] 466 U.S. [668,] 688 [(Strickland)].) A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. (Id. at [p. 689].) The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' (Id. at [p. 687].)
"With respect to prejudice, a challenger must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' ([Strickland, supra, 466 U.S. at p. 694].) It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' (id. at [p. 693].) Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' (Id. at [p. 687].)
" 'Surmounting Strickland's high bar is never an easy task.' (Padilla v. Kentucky [(2010)] 559 U.S. 356, 357 [176 L.Ed.2d 284, 297 [].) An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. (Strickland[, supra,] 466 U.S. at [pp. 689-690].) Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' (Id. at [p. 689]; see also Bell v. Cone [(2002)] 535 U.S. 685, 702 [152 L.Ed.2d 914 []; Lockhart v. Fretwell [(1993)] 506 U.S. 364, 372 [122 L.Ed.2d 180 [].) The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom. [(Strickland, supra, 466 U.S. at p. 690.)]" (Harrington v. Richter (2011) 562 U.S. 86, 104-105 .)
Defendant has not established he would have received a more favorable verdict had counsel called Geller to introduce the video. Doe's statements in the SAFE interview render it unreasonable to believe he was prejudiced by the video's omission.
The video's transcript, included in the record as a court exhibit, shows Geller's interview of Doe was difficult. Doe's statements often did not coherently respond to the question. She frequently referred abstractly to the police, a doctor, her brother, not having a report, "today," and going home.
Occasionally, Geller asked general or yes-or-no questions, and Doe responded. For example, Geller asked, "So how are you today?" Doe responded, "I'm good." "Have you been hurt?" "Yes." But when Geller followed that question by asking how she got hurt, Doe said, "I today I can't know." Gellar asked, "[D]id someone hurt your body?" Doe said, "After, after already to go home now."
Gellar asked if there was a man. The dialogue went thus:
"DG: Was there a man?
"Jane Doe: The same, the same.
"DG: The same man?
"Jane Doe: Yeah, already, police already to go home."
Moments later:
"DG: What does the man look like? Tell me about the man.
"Jane Doe: My friend? The same, police, police, police.
"DG: What about the man, what color was his hair?
"Jane Doe: Black.
"DG: Black? What color were his eyes?
"Jane Doe: White.
"DG: White eyes?
"Jane Doe: Yeah.
"DG: Okay, what about his skin, what color skin did the man have?
"Jane Doe: Oh.
"DG: What color?
"Jane Doe: Um, black.
"DG: Black, okay. Did he have a name?
"Jane Doe: And did my brother did?"
Geller asked Doe if she had reported a rape in 2010. Doe struggled with understanding the date, but then Geller repeated the question:
"DG: . . . So did you report a rape in 2010?
"Jane Doe: Yeah.
"DG: Yes, okay. Um - um, were you raped . . .
"Jane Doe: Yes.
"DG: . . . in 2012? Were you raped in 2012?
"Jane Doe: (Unintelligible).
"DG: Again?
"Jane Doe: Do today.
"DG: So in 2010, yes and in 2012?
"Jane Doe: Now.
"DG: Yes, now, okay, okay.
"Jane Doe: Do today."
The statements from the interview that defendant wanted to present to the jury arose in this dialogue:
"DG: You told someone I have to go home now?
"Jane Doe: Yeah, I have to go home.
"DG: Yes, yes.
"Jane Doe: But police, he said - he said hi, and I know - I now, yeah. Before a long time.
"DG: Yeah.
"Jane Doe: I said, but I didn't know - I know how before you to today but . . .
"DG: Okay, I know you before today.
"Jane Doe: But yeah.
"DG: Yeah.
"Jane Doe: But it's been like already.
"DG: And so you said, 'I have to go home now.' And what did he do?
"Jane Doe: Yeah, he said, I have to go home now. To go home. To go home.
"DG: Did - did he go with you?
"Jane Doe: No.
"DG: No?
"Jane Doe: I have to go.
"DG: You . . .
"Jane Doe: I am, me.
"DG: You, okay.
"Jane Doe: To today.
"DG: Um - um, did - did the man, did he rape you?
"Jane Doe: No.
"DG: No?
"Jane Doe: Not - not, yeah, to today, not today, not, ah . . .
"DG: Not today?
"Jane Doe: The man, here. He go home today. I had the bus.
"DG: Yes.
"Jane Doe: To go home."
Defendant asserts that had the jury heard Doe's statements that she was not raped, he would have established the defense of consent. We disagree. While Doe said, "the man" did not rape her, she clarified by saying "not today." This made her statement consistent with her earlier statements in the interview that she was hurt and raped. Given this consistency and the difficulty of understanding many of Doe's responses, it is unreasonable to contend the video would have had an impact on the jury. That, coupled with the other strong evidence of defendant's guilt, renders it not reasonably probable that defendant would have received a more favorable outcome had evidence of the SAFE interview been admitted. Defendant thus has not established prejudice from counsel's omission of the evidence.
III
Other Claims of Ineffective Assistance
Defendant contends his trial counsel provided ineffective assistance not only regarding the SAFE video, but also regarding other actions. We address and reject each assertion.
A. Neuropsychological assessment
Defendant brought a motion to compel Doe to undergo a psychiatric examination to determine if she was competent to testify. When the court met to consider the motion, defendant, through his counsel, stated he wished to withdraw the request. The prosecutor, however, joined in defendant's motion, and the trial court granted it. Later, after reviewing the expert's report, the court declared Doe was not qualified to testify.
Defendant contends his trial counsel rendered ineffective assistance by not challenging the accuracy of the neuropsychological assessment performed on Doe and by not seeking a second evaluation with a translator present. He claims the lack of a translator and Joseph's input during the assessment rendered the assessment unreliable. He asserts a second evaluation with a translator would have likely shown that Doe was competent to testify at trial, and counsel could have cross-examined her.
Defendant also claims counsel rendered ineffective assistance by not proving Doe was competent to testify and not calling her to the stand and cross-examining her about consent.
We disagree with defendant's contentions. We cannot say counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. There is no dispute that Doe had severe aphasia, struggled to communicate, and was difficult to understand. Counsel may have reasonably decided not to contest the evaluation and the court's ruling because she agreed with them. Counsel could have reasonably believed defendant stood a better chance of a more favorable outcome if the sympathetic, severely impaired victim was not called as a witness at trial and forced to relive her terrifying and painful experiences with the jury. Reasonable trial tactics do not amount to incompetence under prevailing professional norms. "A court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions." (People v. Holt (1997) 15 Cal.4th 619, 703.)
In addition, defendant does not direct us to anywhere in the record that would help us understand why counsel did not challenge the assessment. "When the record does not shed light on why counsel acted or failed to act in a particular manner, claims of ineffective counsel based on that conduct must be presented by petition for writ of habeas corpus." (People v. Holt, supra, 15 Cal.4th at p. 704.)
Because counsel's performance relating to the assessment was not unreasonable under prevailing professional norms, defendant cannot show counsel rendered ineffective assistance on this issue.
B. Miscellaneous claims of ineffective assistance
Defendant further claims his trial counsel: misquoted a key statement defendant made in a police interview; did not list that Doe was taking anticoagulant medicine which would have made her more susceptible to bruising; did not object to photos of Doe's rectum when sodomy was not alleged; did not ask investigators why they did not ask certain questions or investigate certain aspects of the case which prevented her from raising certain arguments; did not cross-examine Joseph effectively; and did not elicit evidence to explain the other sources of alleles found on Doe's pantyhose.
These assertions of ineffective assistance are forfeited, as defendant did not support them with valid citations to the record.
IV
Overruling Hearsay Objections
Defendant contends the trial court erred by admitting hearsay evidence over counsel's objections. He claims the court erred when it allowed Joseph and others to testify as to what Doe said and reenacted to them.
Defendant says his counsel objected many times, and he cites to various pages in his "case binder" as support for this contention. But, again, the "case binder" is not part of the record. Because defendant did not provide us with citations to counsel's objections in the reporter's transcript or the clerk's transcript, he has forfeited this claim.
V
Discovery Rulings
Defendant challenges two discovery rulings the trial court made. We will address one of defendant's claims; the other is forfeited.
A. Late discovery
In an in-camera hearing, defense counsel sought a continuance beyond one week to investigate evidence that the prosecutor had just given her after the discovery cut-off but which the prosecutor had possessed for some months. Counsel argued that one week was not enough time for her investigator to review the evidence and make contacts due to the investigator's schedule. The trial court denied the request. It found that the investigator's schedule was not sufficient cause to grant the continuance, and it directed the investigator to make "some contact" with the potential new witnesses within a week.
Counsel asserted the prosecutor engaged in wrongdoing when it delayed providing the discovery to her, and it was unfair to penalize defendant and risk his constitutional rights based on the prosecutor's wrong actions. The court reminded counsel that the prosecutor was not present in the hearing, and they were not going to discuss whether the prosecutor engaged in wrongdoing or should be subject to sanctions without the prosecutor being present. Moreover, any alleged wrongdoing was not a reason to extend the amount of time the court required counsel's investigator to conduct its investigation.
Before us, defendant attacks the trial court's refusal to grant a continuance and the court's "permitting late discovery[,]" and he claims the court's actions unreasonably restricted his right to prepare for cross-examination. The contention is without merit. The trial court did not abuse its discretion in denying the continuance, as it reasonably believed one week was enough time for defendant's investigator to begin contacting the potential witnesses. We also cannot find the court erred in "permitting" late discovery. Defendant does not direct us to anywhere in the record where the trial court authorized late discovery, or where counsel sought sanctions against the prosecutor for providing discovery late. The court clearly stated it was not addressing any potential wrongdoing by the prosecutor nor was any wrongdoing relevant to defendant's request for additional time. Because defendant does not show with support from the record that the court considered the prosecution's actions with the prosecutor present, he has forfeited this contention.
B. Additional witnesses
Defendant faults the trial court for another discovery matter. He claims the court erred by not providing the defense with discovery from three witnesses. By not supporting this contention with citations to the record, defendant forfeits this claim.
VI
Due Process
In addition to the due process arguments made above, defendant contends his due process rights were violated because the police destroyed relevant evidence, asked Doe leading questions in their investigation, and because an officer did not collect a bloody tissue found at the scene.
Defendant has forfeited these contentions. He did not support them with citations to the record.
VII
Prosecutorial Misconduct
Defendant claims the prosecutor committed vouching during his closing argument. The prosecutor stated Doe "steadfastly withheld consent." Defendant claims this statement is untrue based on Doe's negative response in the SAFE video when asked if she was raped. He asserts the prosecutor mislead the jury and the trial court allowed the statement over his objection.
Defendant has forfeited this claim. He does not support the contention with citations to the record. Also, contrary to his argument, he did not timely object to the prosecutor's statement, nor did he request the jury be admonished. "It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal. [Citations.] 'The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
Defendant does not direct us to the record where he may have made an objection during the prosecutor's argument. However, defense counsel objected to the prosecutor's statement by e-mail the day after closing arguments and after the jury had begun deliberations. Responding to the e-mail, the trial court stated that the prosecutor argued based on the facts in evidence and defendant did not object at the time. It found the issue had been waived and the objection was untimely.
Later that day, counsel put her objection on the record in court. She asked the court to read to the jury the relevant question from the SAFE interview and Doe's response. The court ruled that the prosecutor's statement was not misconduct and was fair argument considering all the statements Doe made.
We agree with the trial court's first ruling that defendant forfeited this claim. He did so by not objecting in a timely fashion and by not requesting a jury admonition. (People v. Seumanu, supra, 61 Cal.4th at p. 1329.)
VIII
Sufficiency of the Evidence
Defendant contends that substantial evidence does not support the verdict. His presentation of the evidence again is inadequate. Other than to admit that DNA evidence linked him to Doe and that there were examinations by doctors, defendant does not present any of the facts germane to the crimes. He claims substantial evidence does not exist because Doe was not incompetent and because there was no physical evidence of force. By not presenting and analyzing all the material facts, he has forfeited this contention.
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error. (See People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153.) Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, 'without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[ ] of conviction.' (People v. Daniels (1948) 85 Cal.App.2d 182, 185.) Rather, he must affirmatively demonstrate that the evidence is insufficient.
"How does a defendant make such a showing? Perhaps the best way to understand that point is to understand how a defendant does not make such a showing. He does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself. It has long been understood in the context of civil appeals, where the burden is likewise on the appellant to demonstrate that the evidence is insufficient, that '[a] recitation of only [the appellant's] own evidence or a general unsupported denial that any evidence sustains the findings is not the "demonstration" contemplated under the rule.' (Green v. Green (1963) 215 Cal.App.2d 31, 35.) It has also long been understood in civil appeals that an appellate court is 'not required to search the record to ascertain whether it contains evidence that will sustain [the appellant's] contentions.' (Ibid.) There is no reason in law or logic that these same principles should not apply in an appeal in a criminal case. These principles are fundamental to the very nature of appellate review, and they must be respected by the criminal defendant who seeks review of his conviction as much as by the appellant in a civil case.
"Thus, to prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistently with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores.
"Such is often the case in criminal appeals, and such is the case here." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574, original italics.)
IX
Cruel and Unusual Punishment
Defendant contends that his prison sentence of 63 years to life is unconstitutionally disproportionate. He claims he is a non-violent male who was sentenced disproportionately because he is black. Without citing to authority, he asserts that "Constitutional defects, nature of the offense, degree of danger to society, and the punishment imposed for more serious crimes in the same jurisdiction" show the sentence was disproportionate.
Defendant has forfeited this claim because he did not object to his sentence in the trial court. "A defendant's failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review. [Citations.] A claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court, because the issue often requires a fact-bound inquiry." (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
DISPOSITION
The judgment is affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
BUTZ, J. /s/_________
MURRAY, J.