Opinion
A161749
12-21-2021
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE BRADFORD, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 17CR002468)
Petrou, J.
Defendant Jermaine Bradford was accused of sexually abusing his ex-girlfriend's daughter, Jane Doe. He was charged with one count of intercourse or sodomy of a child under the age of 10 by a defendant over 18 years of age (Pen. Code, § 288.7, subd. (a)) and three counts of oral copulation or sexual penetration of a child under the age of 10 by a defendant over 18 years of age (id., subd. (b)). A jury found defendant not guilty of the intercourse/sodomy count and convicted him of three counts of oral copulation/sexual penetration. He was sentenced to an aggregate term of 30 years to life, consisting of consecutive terms of 15 years to life on two counts, with the sentence on the third count imposed and stayed under section 654.
Pursuant to the California Rules of Court rule 8.90(b)(4), (10), (11), governing "Privacy in Opinions," we refer to the victim as Jane Doe and certain witnesses by their initials.
All undesignated statutory references are to the Penal Code.
At trial the jury heard Jane Doe's testimony of the sexual abuse, as well as witnesses with whom Jane Doe had spoken about the abuse-her friend, her maternal aunt, a hospital social worker, and a police officer. On appeal defendant contends the court erred in admitting the fresh complaint testimony of the social worker and police officer and in failing to sua sponte give a limiting instruction regarding the jury's use of all of the fresh complaint testimony. He also makes ineffective assistance of trial counsel and cumulative error arguments. We affirm.
Factual Background
We recite only those facts necessary to give context to our discussion of the issues raised on appeal.
A. Prosecution's Case
1. Evidence of Sexual Offenses
In July 2015, Jane Doe's mother, B.F., and defendant began a romantic relationship and five-year-old Jane Doe first became acquainted with defendant. During the ensuing school year (September 2015 through June 2016), Jane Doe attended kindergarten and defendant drove her to school in his van on several occasions.
At trial, then 10-year-old Jane Doe testified that she did not recall the dates when defendant drove her to school. She did recall that during one of those rides defendant stopped the van and showed her a cell phone video of a girl orally copulating a boy. Defendant then told her to do what the girl was doing, and the child complied. Jane Doe testified defendant told her to put her mouth on his "private part," "stuff [] came out of his private part" "in[to] [her] mouth," defendant told her to "spit it out," and she did. Thereafter (estimated as more than ten days), defendant again had the child orally copulate him in the van.
On one occasion defendant told the child not to tell anyone or she would get into trouble. To Jane Doe, "trouble" meant her mother would say she could not play outside and she would have to stay inside. She testified she was neither scared nor happy, but rather confused as to why defendant had asked her to orally copulate him.
Jane Doe's mother, B.F., and the child's maternal aunt, L.F., confirmed that defendant had driven Jane Doe to school in his van on a few occasions but could not recall the exact dates. In addition, a school employee testified that on two or three occasions the child was brought to school in a van driven by a man matching defendant's description.
2. Jane Doe's Extrajudicial Disclosures
Jane Doe did not tell anyone about the sexual molestation while it was ongoing. In the summer of 2016, when defendant was no longer around, Jane Doe told her 12-year-old friend, S.A., and her aunt, L.F. At trial, then 16-year-old S.A. testified that when she was 12 and with Jane Doe at a play structure near their homes, Jane Doe said her mother's boyfriend had made her "do sexual things." Jane Doe was "crying" and appeared sad. S.A. told Jane Doe to tell her mother about the sexual abuse.
B.F. called the police and reported defendant for domestic violence in January 2016 and defendant was arrested on a domestic violence charge in June 2016. B.F. testified against defendant in the domestic violence case on July 5, 2016.
On July 16, 2016, S.A. and Jane Doe went to Jane Doe's home to talk to Jane Doe's mother. Jane Doe's mother was not home, but Jane Doe spoke with her maternal aunt, L.F., and told her what had happened. L.F. testified that Jane Doe said she had been "sexually abused in some way" by "Jermaine," whom the aunt knew as her sister's boyfriend at the time. Jane Doe "was nervous," fidgeted with her shirt and hair, and tried not to make eye contact. L.F. gave the child a hug, consoled her, told her it was okay, and thanked her for telling. L.F. immediately called the child's mother to share what she had learned. Jane Doe's mother came home and took her to the hospital that evening.
Jane Doe was seen by hospital staff including clinical social worker Susan Murray, and she also spoke with Police Officer Isaac Harris in the presence of another police officer. Jane Doe testified at trial that she did not remember talking to a woman at the hospital about what happened to her. She did remember talking to police officers, but not what she told them.
Susan Murray testified that she was a licensed social worker and had been licensed since 1993; she also explained the continuing licensing obligation to keep her training up to date. On direct examination, Murray testified that in the early morning hours of July 17, 2016, she spoke with Jane Doe who made "some kind of complaint . . . about sexual abuse," naming "Jermaine" as the perpetrator. Murray then passed on a report to law enforcement. Murray explained she was a mandated reporter, someone "who in the course of their work, their professional work, comes across a person, in this case a child, who reports abuse of some kind, whether it be physical, sexual, emotional or whatever, we're required to report it to prevent further harm to the child."
On cross-examination, defense counsel did not explore what Jane Doe had told Murray. Instead, counsel questioned Murray concerning her obligations as a mandated reporter. Murray confirmed that, as a "mandated reporter," she would first make an assessment and then possibly make a report to the police. There were many situations in which she did not make a report, for example if she did not "believe the report, or if it lacks credibility, or it comes from, you know, left field, or the person is under the influence." As part of her job she made the initial required assessment, but did not then further investigate the matter.
Oakland Police Officer Isaac Harris testified that he went to the hospital in response to a call concerning a juvenile "sexual assault victim." When Harris arrived at the hospital, he met with other police officers, may have met with the hospital social worker, and then spoke with Jane Doe in the presence of one other officer.
On direct examination, Harris testified that Jane Doe said she had been "the victim of some kind of sexual abuse," identified the perpetrator as "Jermaine," and said who Jermaine was. Harris prepared a written statement describing what he had been told by the child in his own words and then conducted a "review process" with the child and her mother. Harris told them that if anything in the written statement was not right or could be misconstrued, he would make changes to the statement.
On cross-examination, defense counsel questioned Harris about the written statement. Harris confirmed that Jane Doe had not read or signed the written statement. Rather, her mother proofread the statement, crossed something out, and then signed the statement. In response to specific questions concerning the contents of the written statement, Harris confirmed that Jane Doe said, among other things, that:" 'My friend [S.A.] told me that I should tell my family member because [S.A.'s] friend died from the same thing'" ; defendant had put his" 'boy part'" into her" 'girl part'" on more than 10 occasions; and defendant had put his" 'boy part'" where she "pooped" on more than four occasions. On redirect, Harris confirmed that Jane Doe also said:" 'Jermaine would take his boy part and force it into my mouth,' ";" 'He would put [it] in my mouth until I would feel a liquid' ";" 'I do not know how many times Jermaine's boy part went in and out of my mouth, but he has done this almost every time he drops me off at school' "; and that it hurt when defendant put his boy part where she went poop.
When questioned at trial, both Jane Doe and S.A. denied that S.A. said she had a friend who died because of a similar situation.
On redirect, the prosecutor asked Harris about the use of words "boy part" in the written statement. After the words" 'boy part'" Harris had written in parenthesis" 'penis'" to clarify that boy part meant penis. When asked how Jane Doe was able to articulate "penis or boy part," Harris replied that she pointed towards her "private part."
At trial, Jane Doe testified defendant's "private part" never touched her "private part" "in the front." When the child was asked if defendant put his private part "inside" where she "went poop," she said she did not know. When the child was asked if defendant put his "private part" where she went poop, she said yes. When she was again asked about penetration, the child answered, "Yes," to the question if defendant's boy part went "into" where she went poop, but when asked how she felt, she said she "didn't really feel anything." She did not remember telling the police that defendant put his "boy part" "inside" her "girl part" or "inside" where she went poop. The parties stipulated that when Jane Doe spoke with two employees of the District Attorney's office, she said she did not like defendant and defendant had put his "boy part where [she] went poop" but it did not go inside.
3. Child Abuse, Listening, Interviewing, and Coordination (CALICO) Interviews
On July 19 and 21, 2016, Jane Doe was interviewed at a CALICO center. Her videotaped interviews were shown to the jury.
During the first interview, Jane Doe stated that on more than one occasion her mother's boyfriend Jermaine had taken her in his van to a "hiding spot" and he did "inappropriate things." When asked to describe the "inappropriate things," the child did not know what she remembered and said it was too hard because she had already said it "a lot of times . . . to people in the hospital and . . . [s]o many people." She had told the police officer "everything that happened," the first person she told was her friend, and then she told her aunt "everything."
During the second interview, Jane Doe again stated her mother's boyfriend Jermaine had done "inappropriate stuff." On more than one occasion defendant put his "private part" in her mouth and made the child "spit something out" that came from defendant's "private part." She denied defendant had put his private part anywhere else on her body. The child told her friend everything that happened, she and her friend told the child's aunt, and at the hospital the child told the police what happened but she did not remember talking to a lady named "Susan." The child was reluctant to talk about the sexual abuse, repeatedly saying it made her "feel sad" to talk about it and she wanted to go home.
4. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
The prosecution called Blake Carmichael, a clinical psychologist, who testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS).
Carmichael explained that CSAAS is a compilation of particular behavior patterns seen in sexually abused children including secrecy, a failure to resist, a delay in reporting the abuse, and the giving of varying accounts of the abuse. Carmichael confirmed that these behavior patterns did not determine whether a child had been abused, but rather were an educational tool that allowed people to understand the behavior of children who had been sexually abused. Carmichael knew nothing about the facts of the case, and was not asked any questions based on particular hypothetical scenarios.
B. Defense Case
The then 37-year-old defendant denied all of the allegations against him. He described his relationship with the victim's mother, B.F., and confirmed that in the summer of 2015 they entered into a "relationship partnership." They did not live together but he would frequently visit B.F. at the apartment she shared with Jane Doe. Around October 2015, defendant and B.F. started having problems and in January 2016 B.F. called the police concerning defendant's conduct. Despite the police call, defendant and B.F. remained in a relationship.
In May 2016, defendant bought a van and had it about one month until June 19, 2016, when he was arrested and the van was towed. Defendant testified he had driven Jane Doe to school in his van on "[n]o more than three" occasions. On two of those occasions, the child was late for school and the school employee who testified at the trial was waiting outside the school. Defendant denied he had ever touched the child sexually, put his penis in her mouth, or touched her "private part," and, to his knowledge, the child had never seen him naked.
Defendant called two experts regarding the likelihood that he had sexually abused Jane Doe. Forensic psychologist Alex Schmidt testified that he was hired to specifically investigate whether defendant was attracted to prepubescent girls. After administering three tests, Schmidt determined defendant had no measurable psychological deviance, he had a normal attraction to post-pubescent teenagers and women, and there was no evidence of sexual deviance or attraction to children. On cross examination, Schmidt conceded that a high score on the "social desirability" factor of one test might indicate a person's inability to respond truthfully, and defendant's score fell into the range that the test considered "highly problematic."
Forensic psychologist Mitchell Eisen was qualified as an expert in the area of CSAAS, memory suggestibility and disclosure of abuse. He testified, consistent with the prosecution's expert, that CSAAS was a compilation of particular behavior patterns commonly seen in sexual abuse victims. Eisen also testified regarding the impact of suggestiveness in techniques used to interview children who reported sexual abuse. On cross-examination, he agreed that if during a CALICO interview the interviewer did not develop a rapport with the child, it was wise to stop the interview and resume another day rather than try to push through a child's resistance.
Defendant called two character witnesses. One witness, who had known defendant for nine years, testified that she had never seen him exhibit sexually deviant behavior. The second witness, who had known defendant for 29 years, testified that it was her opinion that defendant was not sexually deviant toward minors.
DISCUSSION
I. Admission of Fresh Complaint Testimony of Murray and Harris and Court's Failure to Sua Sponte Give Limiting Instruction on all Fresh Complaint Testimony
Defendant argues the trial court committed prejudicial error by admitting as fresh complaint evidence the testimony of the hospital social worker Susan Murray and Oakland Police Officer Isaac Harris and by failing to sua sponte give a limiting instruction regarding the jury's use of all of the fresh complaint testimony. We disagree.
A. Relevant Facts
Before trial, defendant sought to preclude the admission of evidence of Jane Doe's extrajudicial disclosures of defendant's sexual abuse to S.A., L.F., Murray and Harris. According to defendant, the proposed testimony was not relevant as Jane Doe's delay in making her complaint would not raise a suspicion in the jurors' minds that the offenses had not taken place, Murray and Harris were not "witnesses of a 'fresh complaint, '" and the cumulative effect of the proffered fresh complaint evidence of S.A., L.F., Murray and Harris would be "more prejudicial than probative." In the alternative, defendant requested that if the proposed evidence were admitted the court give a limiting instruction that it was admitted solely to show that a complaint was made, but not for the truth of the matter asserted.
At the hearing, the trial court and counsel discussed the fresh complaint doctrine as explicated in People v. Brown (1994) 8 Cal.4th 746 (Brown) and the admission of the proposed testimony under Evidence Code section 352. The court ruled the prosecutor would be allowed to elicit testimony from S.A., L.F., Murray and Harris, limited to the date and time when Jane Doe made the disclosure, the sexual nature (but not the details) of the disclosure, and the identity of the perpetrator if revealed by the child. In so ruling, the court impliedly rejected defendant's Evidence Code section 352 argument that the prejudicial effect of the testimony of Murray and Harris, together with the testimony of S.A. and L.F, would outweigh its probative value. While defense counsel mentioned that the jury should be instructed that the testimony was not being admitted "for the truth of the matter asserted," the court only said that the jury should be informed that the "details" of any complaint were "inadmissible." The court also informed defense counsel that if he chose to introduce additional details of the child's disclosures to others for impeachment purposes as prior inconsistent statements, that might open the door to the admission of additional details as prior consistent statements.
During the trial defense counsel did not lodge an objection or request a limiting instruction when the prosecutor elicited on direct examination the fresh complaint testimony of S.A., L.F., or Harris. Defense counsel did lodge an objection when the prosecutor elicited fresh complaint testimony from Murray, but the court overruled the objection, stating the witness was "allowed to say the complaint but not go into the details. That's what the law allows." Defense counsel did not ask for a limiting instruction at that time, or when the court and counsel later discussed the final jury instructions. There is no indication that defense counsel ever submitted a written proposed limiting instruction.
B. Analysis
1. Admission of Fresh Complaint Testimony of Murray and Harris
We see no merit to defendant's contention on appeal that the fresh complaint testimony of Murray and Harris should have been precluded under Evidence Code section 352 on the basis that it was less probative than the fresh complaint testimony of S.A. and L.F. and cumulative of the testimony of S.A. and L.F.
We "appl[y] the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including . . . one that turns on the relative probativeness and prejudice of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 724.) Under this standard, we will not disturb a trial court's ruling "except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
There can be no doubt that the testimony of Murray and Harris was evidence relevant "to the jury's determination whether the alleged molestation did or did not occur. [Jane Doe] testified to a series of sexual offenses occurring over a period of [time]. . . during which she remained silent, failing to disclose the incidents to anyone. The circumstances under which the alleged molestation finally came to light was reasonably probative of the likelihood that the alleged molestation did or did not occur." (Brown, supra, 8 Cal.4th at pp. 763-764.)
"Particularly in a case such as the present one, in which the victim testifies to a series of alleged sexual offenses over a considerable period of time, during which the victim had the opportunity to disclose the alleged offenses to others but failed to do so, the exclusion of all evidence relating to the context in which the victim ultimately disclosed the alleged offense to others is likely to leave the jury with an incomplete or erroneous understanding of the victim's behavior. So long as the evidence that is admitted is carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose, admission of such relevant evidence should assist in enlightening the jury without improperly prejudicing the defendant." (Brown, supra, 8 Cal.4th at p. 762.) While Jane Doe made initial disclosures to her friend S.A. and her maternal aunt L.F., the testimony of Murray and Harris concerning the child's later disclosures was relevant and therefore admissible even if "less probative" and "cumulative" of the fresh complaint testimony of S.A. and L.F. (See In re Romero C. (1995) 33 Cal.App.4th 1838, 1843 ["[e]vidence is relevant when no matter how weak it is it tends to prove a disputed issue"; "[e]vidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352"].)
Concededly, fresh complaint testimony, even if relevant and admissible, "is subject to exclusion under Evidence Code section 352 in the event the [trial] court determines that the probative value of the evidence is outweighed by the risk that the jury will consider it for impermissible hearsay purposes, or that the evidence will otherwise create a danger of undue prejudice or will mislead or confuse the jury." (Brown, supra, 8 Cal.4th at p. 763.) But," '[t]he "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." '" (People v. Bolin (1998) 18 Cal.4th 297, 320, quoting People v. Yu (1983) 143 Cal.App.3d 358, 377.) Here, the record shows that the fresh complaint testimony of Murray and Harris, even when considered with the fresh complaint testimony of S.A. and L.F., would not "encourage[] the jury to prejudge defendant's case." (People v. Cowan (2010) 50 Cal.4th 401, 479 (Cowan).) While the testimony of Murray and Harris was not admissible "to prove the occurrence of the crime," it could be considered by the jury for the legitimate "purpose of corroborating the victim's testimony." (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522 (Ramirez).)
Moreover, despite the cumulative nature of the fresh complaint testimony of Murray and Harris, its admission would forestall any erroneous inferences that might be drawn by the jury. In the absence of the evidence of Jane Doe's disclosures to Murray and Harris, the jury would have been left with an "incomplete or erroneous understanding of the victim's behavior" once she was taken to the hospital, i.e., that she made no disclosures at the hospital. (Brown, supra, 8 Cal.4th at p. 762.) If the jurors were permitted to erroneously infer that Jane Doe had made no disclosures at the hospital, they "might be inclined, in reliance upon that misconception, to draw the unwarranted conclusion that the alleged offense[s] did not occur." (Id. at p. 761.) Thus, the admission of the testimony was "appropriate in order to avoid the risk that the jury [would] reach an improper conclusion on the basis of a factually erroneous inference to the contrary." (Ibid., italics in original.)
For the above stated reasons, we conclude the trial court did not err in its pretrial ruling allowing the prosecutor to elicit the fresh complaint testimony of Murray and Harris.
2. Court's Failure to Sua Sponte Give Limiting Instruction on all Fresh Complaint Testimony
Defendant contends the trial court committed prejudicial error by failing to sua sponte instruct the jury regarding the limited purpose of the admission of the fresh complaint testimony elicited from S.A., L.F., Murray and Harris. We disagree.
As a preliminary matter, we conclude no reversal is warranted based on defendant's claim of instructional error under federal law. He contends, in a conclusory fashion, that the absence of a limiting instruction violated his rights to due process and a fair trial under the federal Constitution. He cites no cases supporting his argument, and therefore it is not cognizable on appeal. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[e]very brief should contain a legal argument with citation of authorities on the points made' ";" '[i]f none is furnished on a particular point, the court may treat it as waived, and pass it without consideration' "].) In any event, we see no merit to the claim. (See People v. Griggs (2003) 110 Cal.App.4th 1137, 1143 (Griggs) [court rejected defendant's claim of federal due process violation based on trial court's failure to sua sponte give a limiting instruction with respect to stipulation of defendant's prior felony].)
We also find unavailing defendant's claim of instructional error under state law. As defendant concedes, "[i]n some situations a court must, of its own motion, instruct upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence, [citations], but the court, in the absence of a request, [is] not required to give an instruction limiting the purpose for which the evidence could be considered." (People v. Holbrook (1955) 45 Cal.2d 228, 233, italics added; see People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez) [accord]; see Evid. Code, § 355 ["[w]hen evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly," italics added].) Hence, it has been held that, in the absence of a request, a trial court has no sua sponte duty to give a limiting instruction on the jury's use of fresh complaint testimony. (People v. Manning (2008) 165 Cal.App.4th 870, 880.)
We are not persuaded by defendant's assertion that his trial counsel's pretrial request for a limiting instruction at the in limine hearing was sufficient to trigger the court's duty to give a limiting instruction. He posits that "[c]ounsel should not be required to make continuing demands for an instruction after the trial court has - at least impliedly - agreed to give it." The record reflects no such agreement, implicit or explicit. While the matter of a limiting instruction was discussed at the in limine motion hearing, the court made no decision regarding if or when the instruction would be given or the specific language to be used in the instruction. Defense counsel did not renew the request for a limiting instruction either when the witnesses actually testified, or when discussing the final instructions to be submitted to the jury." 'Because defendant[ ] did not specifically request a limiting instruction at the appropriate time, the court had no sua sponte duty to give one.'" (Cowan, supra, 50 Cal.4th at p. 480 [trial court had no sua sponte duty to give limiting instruction even though defendant requested and was granted a limiting instruction at pretrial hearing on admissibility of testimony when defense counsel did not remind the court to give the instruction either at the time the testimony was admitted or when discussing final jury instructions before the case was submitted to the jury, and defense counsel did not submit any proposed written limiting instruction].)
We conclude our discussion by noting that our Supreme Court in People v. Collie (1981) 30 Cal.3d 43, acknowledged a possible exception to the general rule requiring a request for a limiting instruction in "an occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." (Id. at p. 64.) This is not such a case. The fresh complaint evidence was not a dominant part of the prosecution's case, which included Jane Doe's explicit testimony describing the oral copulation, her second CALICO interview in which she described the oral copulation, and expert testimony regarding CSAAS. Also, the fresh complaint testimony was not highly prejudicial and was more than minimally relevant to the jury's determination as to whether the sexual offenses had occurred, "which was a legitimate purpose for the jury to consider" the testimony. (Hernandez, supra, 33 Cal.4th at p. 1052; see Ramirez, supra, 143 Cal.App.4th at p. 1522 [while fresh complaint evidence is not admissible "to prove the occurrence of the crime," it can be considered by the jury "for the purpose of corroborating the victim's testimony"].) Therefore, defendant's claim of instructional error fails. In light of our determination, we do not address defendant's argument that the court's failure to give a limiting instruction was prejudicial.
The prosecutor's direct examination of the witnesses elicited testimony concerning Jane Doe's disclosures within the confines of the fresh complaint doctrine as permitted by the court's in limine ruling. While on redirect examination the prosecutor was permitted to elicit more specific details of Jane Doe's disclosures to Harris, that testimony was not admitted under the fresh complaint doctrine. Instead, the trial court admitted the evidence because defense "counsel opened up this line of inquiry" by his cross-examination of Harris, and "the prosecutor therefore was entitled to explore the issue fully" under Evidence Code section 356. (Cowan, supra, 50 Cal.4th at p. 479.) The purpose of Evidence Code section 356 is "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (People v. Arias (1996) 13 Cal.4th 92, 156.) Hence, "[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the adverse party." (Evid. Code, § 356.)
II. Ineffective Assistance of Trial Counsel
Defendant contends he is entitled to a new trial because his trial counsel rendered ineffective assistance. We disagree.
"It is well settled that "[t]o establish ineffective assistance, [a] defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been favorable to him." (People v. Hawkins (1995) 10 Cal.4th 920, 940.)
In addressing a claim of ineffective assistance on direct appeal, our scrutiny of counsel's "performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction . . ., and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Strickland v. Washington (1984) 466 U.S. 668, 689 (Strickland); see People v. Ledesma (1987) 43 Cal.3d 171, 215, quoting Strickland.) Thus, "[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. [(Strickland, supra, at p. 689.)]" (Harrington v. Richter (2011) 562 U.S. 86, 104 (Harrington).)
Here, defendant argues that his counsel could have had "no tactical basis" to change his mind or decide against requesting a limiting instruction concerning the jury's use of all of the fresh complaint testimony. He also contends that, as a consequence of the admission of the fresh complaint testimony of Murray and Harris, his counsel was forced to cross-examine those witnesses and thereby introduced evidence which harmed the defense case.
He specifically posits, with the apparent benefit of hindsight, that his trial counsel had "no valid tactical basis" for eliciting Murray's testimony as to her duties as a mandated reporter. According to defendant, counsel should have recognized it was "unrealistic" to ask a question (whether she filed a report "regardless if you know if the claims are true or false . . .") expecting Murray would say she forwarded all complaints to the police with no concern for their validity. By asking the question, counsel "inadvertently" elicited Murray's response that she considered the "credibility" of a complainant, and "gave the prosecution a significant point in closing argument," allowing him to argue: "Miss Murray testified on cross this is her job. She's a mandated reporter. She has to tell everyone what's going on. And what is her job? To judge the credibility of children when they come into Children's Hospital. Then she called the police."
Defendant also argues counsel had "no tactically sound basis" for eliciting Harris's testimony concerning "negligible inconsistencies" in the details of Jane Doe's extrajudicial complaint of sexual abuse because that questioning then opened the door for the prosecutor to rehabilitate the victim's credibility by eliciting the details of Jane Doe's "consistent statements that were far more important." Moreover, defendant posits that his counsel's tactic of selectively cross-examining Harris only about inconsistencies may have undermined counsel's credibility with the jury when the prosecutor's redirect showed that there were other consistent statements made by Jane Doe that defense counsel had not revealed during cross-examination.
Despite defendant's elaborate explanations as to why he believes his trial counsel was ineffective, we conclude he has not "overcome the presumption that, under the circumstances," his counsel's actions" 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) Counsel was tasked with representing defendant against several sexual offenses, where the key issue was Jane Doe's credibility, and "counsel's overall performance indicates active and capable advocacy" (Harrington, supra, 562 U.S. at p. 111) as shown by the jury's verdict finding defendant not guilty of the intercourse/sodomy charge. Moreover, defendant's specific complaints regarding counsel's performance are not well-founded.
Specifically, we are not persuaded by defendant's complaints directed at counsel's decisions to cross-examine Murray and Harris and the nature of the questions propounded to those witnesses. "Normally the decision to what extent and how to cross examine witnesses comes within the wide range of tactical decisions competent counsel must make." (People v. Cleveland (2004) 32 Cal.4th 704, 746; see People v. McDermott (2002) 28 Cal.4th 946, 997 [defense counsel's manner of cross-examination "rarely implicate[s] ineffective assistance of counsel"].) Because the record" 'sheds no light'" on the issues, we will not" 'speculate as to trial counsel's reasons'" for his decisions to cross-examine Murray and Harris and to propound certain questions to those witnesses. (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) Our" 'inability to understand why counsel acted as he did cannot be a basis for inferring he was wrong.'" (People v. Bess (1984) 153 Cal.App.3d 1053, 1059.)
Nor do we find persuasive defendant's claim of ineffective assistance based on counsel's failure to request a limiting instruction on the jury's use of all of the fresh complaint testimony. Similar to decisions regarding cross-examination, "whether to seek a limiting instruction is a tactical decision properly left to defense counsel." (Griggs, supra, 110 Cal.App.4th at p. 1141.) While a limiting instruction on the jury's use of all of the fresh complaint testimony would have properly explained how it could not be used, i.e., "to prove the occurrence of the crime[s]," such an instruction properly might explain how it could be used, i.e., to "corroborat[e] the victim's testimony." (Ramirez, supra, 143 Cal.App.4th at p. 1522; see Hernandez, supra, 33 Cal.4th at p. 1053 [limiting instruction on jury's use of gang evidence "properly might explain how it could be used as well as how it could not be used," italics in original].) Because the jury was not told the fresh complaint testimony could be used as proof defendant had committed the sexual offenses, "defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used." (Ibid.) That is, defense counsel may have concluded "that the risk of a limiting instruction," in which the court would tell the jurors they could use the fresh complaint testimony as corroborating Jane Doe's testimony, "outweighed the questionable benefit such an instruction would provide," i.e., that the testimony could not be used as proof defendant committed the offenses. (Griggs, supra, at p. 1141.)
We therefore conclude defendant's claim of ineffective assistance of trial counsel on direct appeal fails. In light of our determination, we do not address defendant's argument that his counsel's purported errors were prejudicial.
III. Cumulative Error
We see no merit to defendant's argument that he was prejudiced by the cumulative effect of the trial court's purported errors in the admission of the fresh complaint testimony of Murray and Harris and the failure to sua sponte give a limiting instruction on the jury's use of all of the fresh complaint testimony. Having found those claims of error to be without merit, there is nothing to cumulatively review.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P.J., Rodríguez, J.