Opinion
D073863
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. NAHUM LOPEZ ALCANTARA, Defendant and Appellant.
Sara L. Caplan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1503440 ) APPEAL from a judgment of the Superior Court of Riverside County, Mark E. Johnson, Judge. Affirmed. Sara L. Caplan, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Nahum Lopez Alcantara of committing a lewd act on a child under the age of 16 (Pen. Code, § 288, subd. (c)(1); count 1) and sexual penetration by force or fear on a minor over 14 years old (§ 289, subd. (a)(1)(C); count 2). The court sentenced Alcantara to the middle term of eight years on count 2 and a concurrent two-year sentence for count 1.
Statutory references are to the Penal Code unless otherwise specified.
Alcantara appeals, contending: (1) substantial evidence does not support his conviction under count 2; and (2) his trial counsel was constitutionally ineffective. We affirm.
FACTUAL BACKGROUND
Prosecution
Alcantara was the pastor at the church that Jane Doe attended. Doe was friends with Alcantara's daughters, H.A. and B.A. She knew the family for five years. Between 2014 and May 2015, Doe slept over numerous times at Alcantara's house.
On May 20, 2015, when Doe was 14 years old, she went to Alcantara's house after church for a sleepover. Doe and Alcantara's daughters watched movies and YouTube videos. At some point, Alcantara came into the room, looked at Doe and H.A. in "a sexual way," and commented that H.A. and Doe looked alike, which made H.A. feel "unsafe and uncomfortable." At about midnight, Doe went to sleep alone in the downstairs bedroom, while H.A. slept downstairs on a couch in the living room. Doe awoke to the rustling of plastic trash bags that were on the bedroom door handle. Doe observed Alcantara, who was in his underwear and a short-sleeved shirt, enter the room. Alcantara tapped Doe on the upper left shoulder and asked her if she wanted a massage. She said no and turned around with her back toward Alcantara. He asked her if she wanted a massage a second time, and again, Doe stated she did not and moved her hand to get Alcantara to stop touching her arm. She then turned away again to distance herself from Alcantara's reach. Alcantara put his hand down Doe's pants, underneath her underwear, penetrating her vaginal lips and touching the inside of her vagina but not going inside of her. When Alcantara tried to insert his finger inside Doe, she sat up, pushed Alcantara's hand away, and told him to stop. Alcantara then placed his hand up Doe's shirt, touching her breast. Doe pushed Alcantara's hand away, told him to stop, and stated she would tell her parents. Alcantara repeatedly told Doe not to tell anyone, then left the room.
Shocked, Doe gathered her belongings and called and texted her sister's fiancé, M.H. Doe stated she was scared and asked M.H. to pick her up. M.H. drove to Alcantara's house, and Doe, who was "visibly shaken," got into the car and told M.H. that Alcantara had touched her, pointing to her vagina. After dropping Doe off at home, M.H. flagged down Deputy Sheriff Kevin Ogden, who was at the scene of a traffic collision. Deputy Ogden went to Doe's house and spoke with Doe about the incident.
Doe's interview with Ogden was recorded and played for the jury.
Doe told Deputy Ogden that she was asleep when Alcantara came into the room and asked her if she wanted a massage. She told him, "No." Alcantara then put his hand in her pants trying to "finger" her. Doe pushed Alcantara away. After Alcantara told her he was trying to make her feel comfortable, Doe told Alcantara to leave the room, but Alcantara reached up Doe's shirt and touched her breast. Doe told Alcantara she was going to tell her parents if he did not leave. Alcantara stated, "Oh no, don't tell them." Doe waited until Alcantara went back to bed upstairs, then texted M.H.
On May 21, 2015, Ogden spoke with Sheriff Investigator Thomas Salisbury about the incident. That afternoon, Salisbury interviewed Doe. Doe again described the incident, repeating her assertion that Alcantara came into the room where she was sleeping and placed his hand down her pants, touched her vagina, then grabbed her breast under her shirt. When she told Alcantara she was going to tell her parents, Alcantara got scared and told her not to. Doe stated that Alcantara was wearing white underwear and a short-sleeved dress shirt.
A video of Doe's interview with Salisbury was played for the jury.
Later, Salisbury attempted, unsuccessfully, to locate Alcantara on his cellphone and at his home and church. According to Alcantara's wife, Alcantara got ready for work between 2:00 a.m. and 2:30 a.m., which was earlier than normal. Alcantara finally was located at his house 24 hours after the incident, on May 22, 2015 at 1:00 a.m.
Defense
The defense called Dr. Jose Garcia, a psychologist, as an expert witness. He had worked for years with children who had been subjected to physical, emotional, and sexual abuse, but he had never testified as an expert in court. He testified that he reviewed the video of Doe's interview with police, and in his opinion, Doe's behavior was not typical of someone who had been recently molested. Doe appeared "relaxed" and "unperturbed," which was not normal behavior for a recent molestation victim.
Rebuttal
The prosecution called Dr. Veronica Thomas, a clinical and forensic psychologist. She testified that there is no such thing as a typical behavior for child sexual assault victims and their emotions are often different. Thomas did not review the interviews involving Doe. According to Thomas, a child molested by someone he or she knows will respond differently and with more certainty when talking about his or her experience as compared to a child molested by a stranger.
DISCUSSION
I
COUNT 2
Alcantara maintains that sufficient evidence did not support the jury's finding that he committed an act of sexual penetration against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury under section 289, subdivision (a)(1)(C). We disagree.
In determining whether sufficient evidence supports a conviction, an appellate court plays a limited role. (People v. Lewis (2001) 25 Cal.4th 610, 643.) The court examines the entire record and draws all reasonable inferences in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Jackson (2014) 58 Cal.4th 724, 749.) Although circumstances might also reasonably be reconciled with a contrary finding, it does not warrant reversal of the judgment. (Ibid.) "Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict[s,]' we will not reverse." (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) If the verdict is supported by substantial evidence, the appellate court is bound to give due deference to the trier of fact and not retry the case itself. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In a challenge to the sufficiency of the evidence, an appellant bears an "enormous burden." (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
Section 289, subdivision (a)(1)(C) states:
"Any person who commits an act of sexual penetration upon a minor who is 14 years of age or older, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 6, 8, or 10 years."
During closing argument, the prosecutor argued that the evidence showed that Alcantara committed sexual penetration by force or duress. Because the parties focused their briefs on the existence of duress, we discuss that issue first.
As the court in People v. Leal (2004) 33 Cal.4th 999 at page 1004 explained: "The term 'duress' as used in section 288, subdivision (b)(1), was first defined in People v. Pitmon [(1985)] 170 Cal.App.3d 38, 48 [(Pitmon)]. The Court of Appeal in Pitmon observed: 'Duress, as an element of a criminal offense has not been previously given legal definition.' (Id. at p. 48.) . . . The court . . . found 'duress as used in the context of section 288 to mean a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' " (Italics omitted.)
"The Pitmon definition of 'duress' has been followed consistently for almost 20 years. (People v. Cardenas (1994) 21 Cal.App.4th 927, 939; People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1578-1579; People v. Schulz (1992) 2 Cal.App.4th 999, 1005; People v. Hecker (1990) 219 Cal.App.3d 1238, 1250; People v. Sanchez (1989) 208 Cal.App.3d 721, 748.) The Pitmon definition also has been used to define the term 'duress' as it is used in the sexual offenses of aggravated sexual assault of a child in violation of section 269 (People v. Cochran (2002) 103 Cal.App.4th 8, 13 [(Cochran)], forcible oral copulation in violation of section 288a, subdivision (c) (People v. Senior (1992) 3 Cal.App.4th 765, 775 [(Senior)]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 154), forcible sexual penetration in violation of section 289 ([Senior], supra, 3 Cal.App.4th at p. 775), and enhancement for prior sex offenses under section 667.6, subdivision (d) ([Senior], supra, 3 Cal.App.4th at p. 775)." (People v. Leal, supra, 33 Cal.4th at pp. 1004-1005.)
The jury was instructed in this case in terms of the Pitmon definition in CALCRIM No. 1045: "Duress means a direct or implied threat of force, violence, hardship, or retribution that is enough to cause a reasonable person of ordinary sensitivity to do or to submit to something he or she would not otherwise do or submit to. When deciding whether the act was accompanied by duress, consider all the circumstances, including the age of the other person and her relationship to the defendant."
Duress does not require the use of physical force or threats of physical harm. (Pitmon, supra, 170 Cal.App.3d at p. 51.) "The very nature of duress is psychological coercion." (Cochran, supra, 103 Cal.App.4th at p. 15.) In determining whether duress was used, the finder of fact must look to the total circumstances surrounding the incident, including the relative ages and sizes of the victim and defendant, the victim's relationship with the defendant, physical control over the victim, and the length of the exploitation. (Id. at pp. 13-14; Senior, supra, 3 Cal.App.4th at p. 775.) "The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim's testimony must be considered in light of her age and her relationship to the defendant." (Cochran, supra, at p. 14; see People v. Soto (2011) 51 Cal.4th 229, 245 [" 'While the fact that the victim actually consents to a lewd act might render the use of force unnecessary, the victim's actual consent does not eliminate the fact that the defendant actually uses violence, compulsion or constraint in the commission of the lewd act, nor does the victim's consent diminish the defendant's culpability or immunize the defendant from suffering the penal consequences that arise from a forcible lewd act.' "].)
"Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (People v. Schulz, supra, 2 Cal.App.4th at p. 1005.) "[T]he legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto, supra, 51 Cal.4th at p. 246.) " 'Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim' is relevant to the existence of duress." (Senior, supra, 3 Cal.App.4th at p. 775, quoting People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239.)
California appellate courts have upheld findings of duress when, as here, the victim is young and the defendant is an authority figure. For example, in Pitmon, the adult defendant isolated an eight-year-old boy and orally copulated him. (Pitmon, supra, 170 Cal.App.3d at pp. 44-45.) The victim testified that the defendant did not use force, duress, or threats to accomplish the act. (Id. at pp. 47-48.) The court found that despite the victim's statement, there was sufficient evidence to sustain the defendant's conviction for a lewd and lascivious act by duress. In finding sufficient evidence of duress, the court took into consideration the victim's very young age, the physical size difference between the eight-year-old victim and the adult defendant, and the isolated location in which the sex act took place. (Id. at p. 51.)
Similarly, in Cochran, the court upheld a conviction for the adult defendant committing a lewd act with duress upon the child victim despite the absence of any violence or threats uttered by the defendant to the victim. (Cochran, supra, 103 Cal.App.4th at p. 15.) The court found duress was present because the adult defendant molested his nine-year-old daughter and the victim was a "vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority," and "[h]er compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent." (Id. at pp. 15-16.) The court noted, "as a factual matter, when the victim is as young as this victim [nine] and is molested by her father in the family home, in all but the rarest cases duress will be present." (Id. at p. 16, fn. 6; see People v. Veale, supra, 160 Cal.App.4th at p. 47 [although stepfather who molested seven-year-old girl did not use violence or explicit threats, evidence supported a finding of duress based on "the disparity between [the victim] and defendant's age and size," the "defendant's position of authority in the family," and the fact that the victim feared the defendant and believed he would kill her or her mother if she told about the molestation]; Senior, supra, 3 Cal.App.4th at p. 776 [duress present where the defendant threatened to hurt the victim and the defendant warned the victim she would "break up the family unit if she told"].)
Here, Alcantara attempts to distinguish Pitmon, supra, 170 Cal.App.3d 38, from the instant matter. To this end, he argues that Doe was 14 years old not eight years old like the victim in Pitmon. In addition, Alcantara contends that, unlike the victim in Pitmon, Doe "was not likely influenced by [Alcantara's] apparent authority; instead, [Doe] frightened [Alcantara] when she threatened to tell her parents what [Alcantara] had done." Yet, in attempting to distinguish the instant matter from Pitmon, Alcantara forgets our limited function during a substantial evidence review. We do not comb through the record finding any evidence that might support a different conclusion than what was reached by the jury. Instead, we review the entire record most favorably to the judgment to determine whether the record contains substantial evidence from which a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Nelson (2011) 51 Cal.4th 198, 210.) Here, Alcantara does not address the evidence supporting his conviction under count 2. This is fatal to his argument here.
At four feet seven inches tall and 105 pounds, the 14-year-old Doe was much smaller than Alcantara, a 48-year-old man who measured five feet six inches in height and weighed 240 pounds. Doe was only 14 years old at the time of the incident while Alcantara was more than 30 years older. Also, Alcantara was the pastor at the church that Doe attended twice a week. Doe had known him for five years. Doe had spent time with Alcantara and his daughters outside of the church, and she had stayed at Alcantara's house several times. On one occasion, Alcantara gave Doe an extended hug at church, which made her uncomfortable. On another occasion, Alcantara gave his daughters massages and then gave Doe a massage while his daughters remained in the room. Doe was uncomfortable when Alcantara attempted to try to massage her lower back past the waistband of her jeans. Although Alcantara was not a family member, as her pastor and best friend's father, he occupied a position of authority in Doe's life.
Alcantara also entered the bedroom in which Doe was sleeping, in the middle of the night, with no one else present. Alcantara woke up Doe and then asked to give her a massage. It was dark, and Doe was alone on the bed.
Given Alcantara's position of trust and authority and considering the time and manner in which Alcantara preyed upon Doe, substantial evidence supported Alcantara's conviction under count 2 on the grounds Doe was under duress. (See Senior, supra, 3 Cal.App.4th at pp. 775-776.)
Additionally, we determine that substantial evidence also supports a finding that Alcantara sexually penetrated Doe by means of force. Doe was sleeping when Alcantara entered the room and attempted to massage her. The much larger and older Alcantara placed himself between Doe and the door exiting the room. Doe rebuffed Alcantara's attempt to massage her, physically moving away from Alcantara and placing her back to him. Yet, Alcantara persisted past Doe's protestations, crossing the distance provided by Doe's body position, and reaching down Doe's pajama bottoms to sexually assault her. Thus, although Doe turned her back to Alcantara to create some distance from him, Alcantara was not deterred and still managed to overcome the increased distance and Doe's body position to inappropriately touch Doe against her will. The jury reasonably could have viewed this evidence establishing that Alcantara used physical force that is "substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (Cochran, supra, 103 Cal.App.4th at p. 13; see In re Asenio (2008) 166 Cal.App.4th 1195, 1205-1206 [concluding pulling down the victim's underwear, rolling on top of victim then " 'slightly penetrating' " victim's vagina sufficient evidence of force].)
II
INEFFECTIVE ASSISTANCE OF COUNSEL
Alcantara claims his trial counsel was prejudicially ineffective, requiring reversal of his convictions. Specifically, Alcantara insists his counsel was ineffective because (1) his courtroom demeanor was "insolent, disrespectful and repellant"; (2) he attempted to exclude evidence that Doe had complained that a dentist in Mexico had sexually abused her; and (3) he hired an unqualified expert witness. Alcantara contends his trial counsel did not investigate the facts or the law and failed to subject the prosecution's case to meaningful adversarial testing. He argues defense counsel's conduct was so egregious as to constitute complete abandonment; thus, under United States v. Cronic (1984) 466 U.S. 648 (Cronic), we must reverse. We disagree.
In Cronic, a jury convicted a defendant on charges of mail fraud. The case involved the transfer of over $9 million in checks between multiple banks in two states over a four-month period. (Cronic, supra, 466 U.S. at p. 649.) Before trial was to begin, the trial court appointed the defendant "a young lawyer with a real estate practice" and allowed counsel only 25 days to prepare for trial. (Ibid.) The Court of Appeals had "reversed the conviction because it inferred that [the defendant's] constitutional right to the effective assistance of counsel had been violated." (Id. at p. 652.) The Supreme Court disagreed and remanded the case for further proceedings. (Id. at p. 667.)
The Supreme Court held: "While the Court of Appeals purported to apply a standard of reasonable competence, it did not indicate that there had been an actual breakdown of the adversarial process during the trial of this case." (Cronic, supra, 466 U.S. at pp. 657-658.) The court explained: "The Court of Appeals did not find that [defendant] was denied the presence of counsel at a critical stage of the prosecution. Nor did it find, based on the actual conduct of the trial, that there was a breakdown in the adversarial process that would justify a presumption that [defendant's] conviction was insufficiently reliable to satisfy the Constitution." (Id. at p. 662.)
The United States Supreme Court has since clarified that the exception for presumed prejudice that it had alluded to in Cronic, supra, 466 U.S. 648—but had not applied—is extremely narrow. (Bell v. Cone (2002) 535 U.S. 685, 693 [counsel's failure to argue mercy in capital case was not complete failure to present defense for which prejudice can be presumed].) "When we spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, we indicated that the attorney's failure must be complete." (Bell, supra, at pp. 696-697.) Our high court also has deemed the Cronic exception to be quite limited: "Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage." (In re Visciotti (1996) 14 Cal.4th 325, 353 [counsel's failure to discover mitigating evidence did not result in ineffective assistance that undermined proper functioning of the adversarial process].)
Here, Alcantara's trial did not resemble a "breakdown of the adversarial process" as contemplated in Cronic, supra, 466 U.S. at pages 657 through 658. Alcantara has not shown that his counsel was absent at any stage or that his failure was "complete." (Bell v. Cone, supra, 535 U.S. at pp. 696-697.) To the contrary, the record reveals that Alcantara's trial counsel cross-examined the prosecution's witnesses, called his own expert witness, and made a closing argument focusing on Doe's lack of credibility and the defense expert witness's testimony. Although it is apparent that the jury rejected Alcantara's defense, it could not be said that defense counsel completely failed to present one. Put differently, we do not find, under Cronic, that Alcantara's trial counsel's conduct was so prejudicial that ineffective assistance of counsel can be presumed.
In addition, Alcantara's claim under the more common ineffective assistance of counsel standard fails as well. To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) It is the defendant's burden to prove the inadequacy of trial counsel, and defendant's burden is difficult to satisfy on direct appeal. Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349 (Ray); People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
"Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense, that, to their best and reasonable professional judgment, seem appropriate under the circumstances." (People v. Freeman (1994) 8 Cal.4th 450, 509.)
The United States Supreme Court explained that "[j]udicial scrutiny of counsel's performance must be highly deferential [because] [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, 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." (Strickland, supra, 466 U.S. at p. 689.) Thus, the court explained, reviewing courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Ibid.; see People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas), quoting Strickland, supra, at p. 689 ["[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' "].) We reverse on the ground of inadequate assistance only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (Lucas, supra, at pp. 436-437.)
Here, Alcantara claims his trial counsel was constitutionally ineffective because: (1) counsel had exhibited a disrespectful courtroom demeanor; (2) he tried to prohibit evidence that Doe claimed to have been sexually assaulted by a dentist in Mexico; and (3) counsel selected an unqualified expert witness. On the record before us, Alcantara has not shown that his trial counsel's performance fell below the standard of reasonableness and the deficient performance prejudiced his defense. (See Strickland, supra, 466 U.S. at pp. 687-688.)
As a threshold matter, we note that Alcantara's claim of ineffective counsel relies on what appear to be tactical decisions. Generally, we defer to the tactical decisions of trial counsel. (See People v. Scott (1997) 15 Cal.4th 1188, 1212; People v. Holt (1997) 15 Cal.4th 619, 703; Lucas, supra, 12 Cal.4th at p. 437.)
For example, Alcantara takes issue with his trial counsel's attempt to prohibit evidence that Doe claimed she was molested by a dentist in Mexico. Alcantara argues such evidence would be helpful to his defense if the prior allegation was false. However, Alcantara has not cited to any portion of the record indicating that the prior allegation was shown to be false. Moreover, Alcantara's trial counsel's objection to this evidence appears to be based on a lack of notice that the prosecution was going to offer that evidence. The court noted that it would have probably excluded the evidence had it received a motion before trial, but ultimately concluded the evidence was not prejudicial to Alcantara and agreed to admonish the jury to ignore the evidence in any event. Thus, Alcantara's argument here appears to be that his trial counsel was constitutionally ineffective because he unsuccessfully argued to exclude evidence that might be helpful to the defense after it was already presented to the jury. Yet, Alcantara has not shown that the evidence was helpful. And, the record does not affirmatively exclude a rational basis for Alcantara's trial counsel's choice to challenge the admission of the evidence. (Ray, supra, 13 Cal.4th at p. 349.) Perhaps, defense counsel was surprised by the prosecution's use of the evidence as he claimed he did not have sufficient notice the prosecution planned to offer it at trial. Maybe, defense counsel did not want other allegations of molestation involving a third party presented to the jury out of concern that it would confuse the jury. Simply put, we cannot determine, on this record, that Alcantara's trial counsel's performance was constitutionally ineffective based upon his challenge to evidence that Doe previously claimed she was molested by a dentist in Mexico.
Similarly, we find Alcantara's claim that his trial counsel was constitutionally ineffective for selecting an unqualified expert witness (Dr. Garcia) also lacks merit. In making this challenge, Alcantara insists Dr. Garcia was not qualified because he had not previously testified at trial in a child sexual molestation case and had no knowledge of child sexual abuse accommodation syndrome (CSAAS). Again, Alcantara is contesting his trial counsel's strategic decision.
Dr. Garcia is a clinical psychologist with a Ph.D. in psychology, who has been licensed for about 16 years. He was employed at St. Francis Medical Center, where most of his work has been helping children suffering from physical and sexual abuse as well as neglect. He also was referred cases involving child molestation from the juvenile dependency court in Los Angeles. Alcantara's first objection to Dr. Garcia here is that he had not previously testified as an expert in a child molestation trial. However, Alcantara points to no authority supporting his argument that an expert witness is unqualified if he or she has not previously testified as an expert witness. Indeed, it appears that Dr. Garcia had significant experience dealing with sexually abused children even if he had not appeared before as an expert witness at trial.
Alcantara's second challenge to Dr. Garcia's qualification is his claim that Dr. Garcia did not have any knowledge of CSAAS. Nevertheless, Alcantara's argument overlooks that defense counsel made the strategic decision that CSAAS did not apply to Doe. To this end, counsel asserted during closing argument:
"The child accommodation syndrome, that doesn't apply to this case. Do you know what the child accommodation syndrome is? The child accommodation syndrome basically explains why children don't disclose. It gives you five reasons why they don't disclose. That doesn't apply to this case. According to the victim -- or according to the facts of the case, the victim reported the incident about an hour or two after her first, and then she had another interview with a second officer like six or seven hours later. That has nothing to go with the child accommodation syndrome, yet they were talking about the child accommodation syndrome. They're trying to fool you into thinking Dr. Garcia was not -- what the heck
Dr. Garcia was thinking. [¶] Furthermore, at least the plaintiff's expert is willing to admit that the child accommodation syndrome is no diagnosis or diagnostic tool. It doesn't predict whether a person's been accused or not. What the heck are we talking about here? Deception."
Therefore, Alcantara's claim of ineffective assistance of counsel based on the selection of Dr. Garcia as the expert witness simply asks us to second guess defense counsel's tactical decision. Without some indication in the record that this decision showed that defense's counsel's trial performance fell below the standard of reasonableness, we will defer to counsel's tactical decision in this case. (See People v. Scott, supra, 15 Cal.4th at p. 1212.)
In his opening brief, Alcantara represents that "[a] simple Lexis Nexis search of California criminal cases yielded over 600 cases where an expert has testified on CSAAS since 1985." Without additional context, this representation is not helpful to our analysis here. There is no indication if any of the cases identified by Alcantara contained facts analogous to the instant matter or stand for the proposition that an expert witness in a child molestation case must be able to testify regarding CSAAS or he or she will be deemed unqualified. Further, Alcantara is relying on information not contained in the record. As such, this argument would be more appropriate as part of a petition for writ of habeas corpus rather than a direct appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) --------
Alcantara's final argument that his trial counsel was constitutionally ineffective is based on his courtroom demeanor, which Alcantara characterizes as "insolent, disrespectful and repellant." To this end, Alcantara cites to numerous portions of the record where the court commented on defense counsel's behavior, even going as far as to find him in contempt of court for "contemptuous or insolent behavior towards a judge." The contempt finding followed defense counsel accusing the court of racial discrimination and improperly excluding Latino jurors based on race. In addition, he referred to the trial as "a circus and a show in large part motivated by racial hatred."
The record also indicates that the court observed that Alcantara's trial counsel was "argumentative with the witnesses[,]" "sarcastic[,]", and "disrespectful." The court additionally noted that defense counsel consistently interrupted the court. And, the court commented that defense counsel's antics might not be endearing him to the jury.
Even on a cold record, we are concerned by the court's description of defense counsel's behavior during trial. We are troubled by his attacks on the trial court and his lack of decorum. Although counsel's approach to dealing with witnesses, the court, the prosecution, and the jury could very well be an important part of his strategy for trying this case, at least some of his tactics appear to be ill-advised at best. Further, while we generally defer to a trial counsel's tactical decisions, defense counsel's performance here leads us to question whether there really could be any rational tactical reason to explain Alcantara's trial counsel's behavior. (See Lucas, supra, 12 Cal.4th at pp. 436-437.)
Yet, we need not answer that question now. Even if we were to assume defense counsel's representation of Alcantara fell below the standard of reasonableness, we cannot, on the record before us, determine if Alcantara was prejudiced. Most of the court's comments to Alcantara's trial counsel appear to have been made outside the presence of the jury. And there is no indication in the record how the jury actually responded to Alcantara's trial counsel. Moreover, the evidence against Alcantara was overwhelming.
In summary, an appellate court generally cannot fairly evaluate counsel's performance at trial based on a silent record. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) In many instances, like here, evaluation of a claim of ineffective assistance of counsel will have to await a petition for writ of habeas corpus, should the defendant believe there is a viable claim that can be pursued. (Ibid.) Accordingly, we conclude that Alcantara's claim of ineffective counsel is without merit.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.