Opinion
D072089
07-18-2018
THE PEOPLE, Plaintiff and Respondent, v. GEORGE AVILA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen K. Chenella, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD262940) APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen K. Chenella, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted George Avila of 22 counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). As to each count, the jury also found true an allegation he committed lewd acts on more than one victim (Pen. Code, § 667.61, subds. (b), (c), (e) [counts 6-20, 22-23] & (j)(2) [counts 1-5].) The trial court sentenced him to five consecutive prison terms of 25 years to life and 17 consecutive prison terms of 15 years to life.
Avila appeals, contending we must reverse the judgment because the court permitted the prosecution to introduce a witness's conditional examination testimony without first finding the witness was unavailable. We conclude Avila has forfeited this contention and affirm the judgment.
II
BACKGROUND
A
Avila molested the three daughters of one of his girlfriends, impregnating the eldest (victims 3 through 5). He later molested the younger sister of another girlfriend (uncharged acts victim). He eventually fathered two children with the younger sister and subsequently molested both of the children (victims 1 and 2).
We omit a more detailed summary of the facts underlying Avila's convictions because it is not necessary for us to discuss the facts in order to address the issue Avila raised on appeal.
B
Approximately three weeks before the trial was to commence, Avila moved for a continuance of the trial to allow defense counsel to conduct further investigation. The prosecutor opposed the continuance, in part because one of the victims lived in another state and would likely be unavailable for trial if the court continued the trial date because of travel restrictions associated with a high-risk pregnancy. Although the court agreed defense counsel needed to conduct further investigation of some matters, the court was sympathetic to the prosecutor's concern about the victim's unavailability. At the court's suggestion, defense counsel stipulated to a conditional examination of the victim. The court granted the motion and continued the trial date approximately three months.
Approximately a month after the court granted the continuance, the parties conducted the conditional examination. In lieu of the victim's testimony, the prosecutor played a video recording of the conditional examination for the jury during the trial.
In introducing the video recording to the jury, the court stated, "So, ladies and gentlemen, this is what we call a conditional exam. You'll see that the witness cannot be in court now, and so we recorded her testimony [previously] in my courtroom."
Despite multiple opportunities, defense counsel did not object to the playing of the video recording. Indeed, during the hearings on the parties' in limine motions, defense counsel stated he wanted the jury to hear at least a portion of the conditional examination because the victim made statements favorable to Avila during it.
III
DISCUSSION
A video recording of a witness's conditional examination may be shown at trial if the court finds the witness is unavailable. (Pen. Code, § 1345; Evid. Code, § 240; People v. Foy (2016) 245 Cal.App.4th 328, 342.) Avila contends we must reverse the judgment because the court failed to make a finding the victim was unavailable before the court allowing the prosecutor to play the video recording of the victim's conditional examination.
Avila has forfeited this contention on appeal by failing to object on this ground in the trial court. (People v. Williams (2008) 43 Cal.4th 584, 625; People v. McCoy (2013) 215 Cal.App.4th 1510, 1524.) Anticipating the forfeiture, Avila contends the failure to object was the result of ineffective assistance by his trial counsel.
We may not reverse a court's judgment for ineffective assistance of counsel unless there is affirmative evidence in the record showing counsel had no rational tactical purpose for counsel's claimed act or omission. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Avila has not identified any such affirmative evidence.
Moreover, the record suggests at least two potential rational tactical purposes for trial counsel's failure to object. First, there does not appear to be any dispute between the parties about the victim's unavailability. Second, defense counsel wanted the jury to view the video recording of the conditional examination because it included testimony helpful to Avila's defense. Accordingly, we conclude Avila has not established the existence of any error requiring reversal of the judgment.
IV
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. AARON, J.