Opinion
C078475
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN JEROME FALJEAN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F02049)
Defendant John Jerome Faljean appeals his convictions for 14 sexual offenses committed against one young family member ("minor 1") and a battery against another young family member ("minor 2"). He claims the trial court erred in admitting a compact disc (CD) containing photographs depicting fetishistic sexual acts between adults and unidentified children in sexually suggestive poses. Defense counsel did not object to the admission of this evidence, accordingly, the issue is forfeited. Anticipating this result, defendant also claims counsel's failure to object constituted ineffective assistance of counsel. We need not determine whether defendant's counsel was deficient because we find that defendant was not prejudiced by the admission of the CD in any event. We affirm the judgment.
FACTS AND PROCEEDINGS
Starting when she was seven years old and continuing until she was 13, minor 1 stayed overnight at defendant's home as often as once a month and frequently on weekends. She viewed his house as her "second home."
When she was eight years old, defendant began molesting minor 1 during these sleepovers. On numerous occasions, he fondled her breasts, touched her on her buttocks, thighs, and back, put his hands in rear pants pockets, sodomized her, digitally penetrated her, and orally copulated her. He began sodomizing her when she was 10 years old and continued at least once a year until she was 13. He started orally copulating her when she was nine years old, and continued at least once a year until she was 13.
Defendant had stacks of photographs on his desk and he would show minor 1 the pictures and have her pose as depicted therein. He had her pose in lacy clothing, bent over without underwear. He would have her put on adult makeup. He also took pictures of her in the hot tub and showering naked. He often tried to take pictures of her genitals.
The last molestation occurred when she was 13. Minor 1 woke up and defendant had pulled her shorts down, defendant was on the floor with his pants off and was sticking his finger in her rectum. He then followed her into the shower and washed her. Minor 1 stopped visiting defendant at age 13. Overall, defendant had orally copulated minor 1 more than 30 times, kissed her breasts more than 50 times, and sodomized her between 10 and 20 times.
On one occasion, minor 2 stayed overnight with defendant and minor 1. She woke up and felt defendant running his hand up her thigh towards her genitals. She did not return to his house afterwards, because she did not want it to happen again. Minor 2 told her aunt about it at the time, but law enforcement was not notified.
Minor 1 became concerned about other young family members who were spending time with defendant, and that he would molest them as he had her. She told her aunt about defendant's conduct toward her. The aunt reported the molestations to law enforcement.
Sheriffs executed a search warrant at defendant's home and found lingerie, bathing suits, stockings, and minor 1's school identification in a dresser in defendant's bedroom. They also found digital cameras, memory cards, and a number of photographs. One group of pictures was of girls playing in defendant's hot tub. There was also a photo album of nude women. Sheriffs also found 16 CDs containing photographs. On one of the CDs there were pictures of minor 1 in provocative poses wearing lingerie, and a bathing suit. Other pictures, taken while she was asleep, were of her exposed genitals. Some photos showed a hand holding her vagina open for the photograph. Forty-nine of the images on that CD were printed out and admitted into evidence.
Defendant admitted he had taken the pictures of minor 1, but denied touching her sexually, orally copulating her, or sodomizing her. He denied the pictures were taken for sexual gratification and denied any of his conduct with minor 1 had an underlying sexual intent. He claimed minor 1's aunt had made the allegations as revenge for his part in a family dispute.
An amended information charged defendant with 10 counts of molesting a child under the age of 14 (Pen. Code, § 288, subd. (a) - counts 1, 2, 4, 9, 10, 11, 12, 13, 14, and 15; unless otherwise stated, statutory section references that follow are to the Penal Code), using a minor to pose in photographs depicting sexual conduct (§ 311.4, subd. (a) - counts 3 and 5), and sodomy or oral copulation with a child 10 years old or younger (§ 288.7, subd. (b) - counts 6, 7, and 8). Counts 1-14 related to minor 1 and count 15 to minor 2. The jury returned verdicts finding defendant guilty as charged in counts 1 through 14 and guilty of the lesser included offense of battery with respect to count 15. The trial court sentenced defendant to a term of 55 years to life, consisting of: (1) 25 years to life for count 7; (2) a consecutive 15 year to life term on count 6; and (3) a consecutive 15 year to life term on count 8. The trial court also sentenced defendant to a consecutive aggregate determinate term of 25 years four months consisting of: (1) the upper eight-year term on count 1, along with consecutive two-year terms for counts 2, 4, 9, 10, 11, 12, 13, and 14; (2) two consecutive eight-month terms on counts 3 and 5; and (3) a consecutive 120 days on count 15.
DISCUSSION
I
Forfeiture
Defendant contends the trial court erred in admitting Exhibit 80C, a CD containing pictures of "dozens of depictions of all sorts of other sexual acts, including children and adults, bondage and hog-tying" into evidence. He argues the exhibit lacked a foundation and contained inflammatory material. Acknowledging counsel did not object to the admission of the CD, he contends counsel provided ineffective assistance of counsel, as there could not have been a tactical reason for not objecting to the evidence, and the evidence was prejudicial as a jury viewing the photographs on the CD "might determine that [defendant] lacked moral standards and harbored an unusual desire to sexually degrade women and children and therefore resolve any questions of credibility against him."
Prior to submitting the case to the jury, the parties discussed the admission of exhibits. The trial court said it was not going to admit photographs that were not described by any of the witnesses, or viewed by or shown to witnesses. The trial court admitted 49 of the photographs that had been printed from Exhibit 80B. The trial court also admitted into evidence four of the CDs on which photographs were found, Exhibits 80A, 80B, 80C, and 80D. Defense counsel did not object.
Later the trial court requested the parties look at the photographic exhibits and ensure it had correctly identified the ones to be admitted. Defense counsel stated, "I'm going to trust the Court's judgment. I have no overriding objection to any of the photographs that came in on that CD." The trial court went on to state, "I would admit everything but the ones I mentioned, and except for -- there is 80 through 80[C]. Those are all CDS. So I'll just hold those. Because that way otherwise, I won't have any knowledge of them viewing anything." The People agreed and stated Exhibit 80B was the only CD for which they had laid an extensive foundation. The trial court indicated it would not send that CD into the jury deliberation room, and if the jury asked for the CD, the trial court would let the parties know. Both the People and defense counsel agreed. There was no discussion of Exhibit 80C by the trial court or the parties.
Exhibit 80C contained "dozens of depictions of all sorts of other sexual acts, including children and adults, bondage and hog-tying." The photographs on this CD were not described to the jury and no images from this CD were printed out, identified, or described to the jury.
The jury deliberated for approximately three hours. They made no requests of the trial court and asked no questions before returning their guilty verdicts.
Evidence Code section 353, subdivision (a), provides that a judgment may not be reversed for erroneous admission of evidence unless "[t]here appears of record an objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection . . . ." Absent a timely and specific objection to the admission of evidence, an appellant forfeits arguments on appeal based on the erroneous admission of evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 21.) The requirement of a timely and specific objection serves to prevent error and allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps to minimize the prospect of reversal. (People v. Partida (2005) 37 Cal.4th 428, 434.) Because defense counsel did not object to the admission of the evidence, defendant's challenge to the admission of Exhibit 80C has been forfeited. (People v. Demetrulias, at p. 21.)
II
Ineffective Assistance of Counsel
" 'To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citation.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694 [(Strickland)].)' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1175.) "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) "In determining whether an attorney's conduct so affected the reliability of the trial as to undermine confidence that it 'produced a just result' [citation], we consider whether 'but for' counsel's purportedly deficient performance 'there is a reasonable probability the result of the proceeding would have been different.' [Citations.]" (People v. Sapp (2003) 31 Cal.4th 240, 263.) In this case, we do not need to determine whether counsel's performance was deficient because it is clear defendant was not prejudiced by the failure to object. (Strickland, at p. 697 [80 L.Ed.2d at pp. 699-700].)
Preliminarily, we observe that, contrary to defendant's claim, it is not at all clear from the record that the jury ever viewed the CD at issue or the pictures that it contained. None of the images on the CD were printed out. Although the CD may have been available to the jury, there is no indication in the record that any of the CDs went into the jury room. To the extent the exhibit did go into the jury room, the exhibit was the CD itself, and there is no indication in the record that there was a means for the jury to view the images, such as a computer, in the deliberation room. The jury did not make any requests of the trial court, ask any questions, or request to view any of the CDs, including 80C.
But, in any event, even if the jury did view the images, and accepting appellate counsel's description thereof, there is no reasonable probability the result of the case would have been different. The jury heard minor 1's testimony about defendant's ongoing molestation of her, including digital penetration, oral copulation, sodomy, and taking pornographic photographs of her. They could assess her credibility and her testimony. They heard minor 2, another young family member of defendant, testify about her own victimization by defendant. The jury also saw the multiple photographs defendant took of minor 1, most of them pornographic or sexually provocative. Those photographs included images of minor 1 posed in sexually provocative clothing and positions, and with defendant holding her genitals open. Those images also corroborated minor 1's testimony. Defendant admitted taking the photographs.
By contrast, the images on the CD were of adults engaging in fetishistic behavior, including bondage, and unidentified children in sexually suggestive poses. Although the images on this CD may have been disturbing to the jury, in the context of this case where the trial court correctly admitted considerable evidence about defendant's ongoing and repeated molestations of the young victim, her emotional testimony, and the sexually explicit photographs of her admittedly taken by defendant, we cannot say its admission was prejudicial. In light of the record before us, we see no reasonable probability the outcome of the trial would have been different if Exhibit 80C had not been admitted into evidence.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. DUARTE, J.