Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR035042
RIVERA, J.
Timothy Ernest Boone appeals from a judgment of conviction upon a jury verdict finding him guilty of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5). He contends that: (1) his trial counsel was ineffective; (2) the trial court erred in denying his motion for a new trial; (3) there is insufficient evidence to support the verdict; and (4) the prosecutor committed misconduct. We affirm.
I. FACTS
E.A. and S.A. live with their two children in Kelseyville. They have known defendant since they were in high school. E.A. and defendant enjoyed riding dirt bikes. In June 2001, E.A. purchased a dirt bike. Defendant thereafter visited the A.’s home approximately once or twice a month to go dirt bike riding. Defendant sometimes brought his daughter and girlfriend with him. They would stay in E.A.’s daughter, E.A.1’s room. E.A.1 slept on the bed while the others slept on the floor.
On March 13, 2003, S.A. spoke with E.A.1, then 11 years old, because she suspected that E.A.1 may have been molested. S.A. asked E.A.1 if an adult had touched her inappropriately. E.A.1 told S.A. that defendant molested her. S.A. called the police.
Deputy sheriff Lucas Bingham responded and interviewed E.A.1 on March 13, 2003. He spoke with E.A.1 out of the presence of her parents. E.A.1 was nervous and reluctant to talk about what happened. She told Bingham that defendant had placed his hands underneath her clothing and touched her private areas. She pointed to her chest and her vaginal area as her private areas. She said that defendant touched her at night when she was sleeping. She explained that the incidents took place in her bedroom and that once it happened while she was sleeping on the couch in the living room. She said there were 12 incidents, and on several occasions he digitally penetrated her.
E.A.1 testified that defendant touched her private part, chest and bottom on about five occasions over the course of a year. The first time occurred within three months of when her father purchased his dirt bike. The last time occurred within six months of when she reported the abuse to her mother. E.A.1 remembered an incident occurred when defendant injured his hand while riding his dirt bike. When defendant returned from the hospital, he slept in her room while she slept on the couch in the living room. She awoke during the night to find defendant on the couch. She was scared and did not know what to do. He touched her in her vagina with his uninjured hand. E.A.1 pretended to be asleep. Her vagina felt sore after the incident.
E.A.1 further testified that defendant molested her in her bedroom on other occasions. He sometimes touched her chest and other times he touched her vagina. She did not tell her mother because she was afraid of what might happen.
D.G., age 11, testified that she was a friend of defendant’s daughter. When she was eight years old, she was at defendant’s house playing with defendant’s daughter. D.G.’s mother allowed her to spend the night there. D.G. and defendant’s daughter slept on the bunk bed in defendant’s daughter’s room, with D.G. sleeping alone on the top bunk. She did not have her pajamas with her so defendant gave her a T-shirt to wear. Sometime after D.G. went to bed, defendant entered the room and whispered, “[D., D.], are you awake?” D.G. pretended to be asleep and made a grunting noise. Defendant approached her and pulled up her shirt and pulled down her underwear. He touched her “private” and stuck his middle finger in it, moving his finger in circles. He touched her for a couple of minutes. Defendant then left the room. D.G. told her cousin about the incident a couple of months later. D.G.’s parents learned about the incident shortly thereafter.
In defense, defendant denied molesting E.A.1. He also denied molesting D.G.
II. DISCUSSION
A. Effective Assistance of Counsel
In order to prove a claim of inadequate representation, a defendant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope).) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.) The defendant must also establish prejudice from counsel’s acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Defendant faults his defense counsel for telling the jury in his opening statement that there would be testimony from other victims, but this testimony would show that the allegations were the result of manipulation and suggestibility. It is apparent from the record that defense counsel chose to address the prior victim testimony in his opening statement as a tactical matter. Counsel mentioned the possibility of other victims testifying, because at the time, the trial court had ruled that the prosecutor could introduce other acts evidence regarding three prior victims under Evidence Code section 1108. As the trial court found in denying his motion for a new trial, defense counsel was “trying to take the [sting] out of that evidence[,] hearing it from the defense prior to the prosecution, that’s not an unusual thing to say.”
Defendant also contends that his counsel failed to adduce evidence of his defense that E.A.1’s allegations were the result of suggestibility and rumors. The record, however, shows that defense counsel did adduce evidence on this issue. Dr. Lee Coleman testified that the manner in which E.A.1. was questioned regarding possible abuse was coercive and suggestive. Defense counsel argued Coleman’s theory in closing argument, asserting that Coleman noted E.A.1 was influenced to believe her story because she was subjected to constant interviews, suggestive investigative techniques and repetition of the alleged story causing her to believe it. Defense counsel further argued how the “rumor mill” had fostered E.A.1’s allegations. Hence, the record shows that defense counsel did focus the defense on this theory, and we cannot conclude that this was not an informed tactical choice within the range of a reasonable attorney’s competence.
Defendant further argues that defense counsel elicited damaging information during his questioning of witnesses. In particular, he refers to his counsel’s questioning of S.A. regarding her opinion of defendant before she heard about the allegations. In response to the inquiry, S.A. said that defendant was a friend from high school and “I knew he was a pervert when it came to older women, but I never thought he would touch little girls; but I trusted him.” She explained that she thought he was a pervert because he frequented swinger and nude clubs. While in hindsight, soliciting S.A.’s opinion of defendant was not the best tactic, defendant has not shown prejudice. Defendant cannot show that a more favorable result was reasonably probable. The jury ultimately chose to believe E.A.1’s testimony over that of defendant.
Defendant further contends that his counsel failed to establish a physical impossibility that abuse occurred on the evening he injured his hand. The question, however, is not whether defense counsel “establish[ed]” a defense, but whether the defense was proffered to the jury. Here, the record shows that defense counsel did raise this defense. In closing argument, defense counsel argued that the evidence showed that the incident could not have happened because defendant was sleeping on the couch that night, and E.A.1 was on the floor on the other side of the coffee table, making the touching allegation “a physical impossibility.”
Defendant also faults defense counsel because he called Kerry Locklear of the Redwood Children’s Center, who conducted a forensic interview of D.G., to impeach D.G.’s testimony she was sleeping alone on the top bunk. Locklear testified that D.G. told her she was sleeping on the top bunk with defendant’s daughter and a boy was sleeping on the bottom bunk. On cross-examination, the prosecutor elicited Locklear’s opinion that D.G. was cooperative during the interview and that Locklear was “struck by her presence and her sincerity and the fact that she could simply tell me the story with the kind of detail that has kind of the ring of authenticity to me.”
Defense counsel cannot be faulted because his strategy of attempting to bolster defendant’s case by impeaching D.G.’s testimony resulted in favorable testimony for the prosecution. Defendant cannot demonstrate that he was prejudiced by the tactical error. With E.A.1’s testimony, there was substantial evidence supporting the verdict.
Finally, defendant argues that his counsel should have presented character witnesses in his defense, should not have dwelled on defendant’s use of marijuana, and failed to present a third party culpability defense. We, however, cannot second guess defense counsel’s strategy on these issues. Defense counsel presented a strong case, but the jury chose to believe E.A.1. On this record, defendant has failed to show that his counsel’s decisions were not based on a knowledgeable choice of tactics. We must, therefore, affirm his conviction. (Pope, supra, 23 Cal.3d at p. 426; People v. Finney (1980) 110 Cal.App.3d 705, 712 (Finney).) “Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus.” (Pope, supra, 23 Cal.3d at p. 426.)
In denying defendant’s motion for a new trial, the trial court surmised that defendant sought to use this evidence “to try to paint the victim’s family as also being marijuana users to impeach them before the jury.”
B. Motion for a New Trial
Defendant also contends that the trial court erred in denying his motion for a new trial. Defendant urged that he was entitled to a new trial because his trial counsel was ineffective.
A trial court’s ruling on a new trial motion is reviewed for abuse of discretion. (People v. Navarette (2003) 30 Cal.4th 458, 526.) In challenging the court’s ruling, defendant again argues that defense counsel had no tactical basis for raising the issue of other victims in his opening statement, that he should not have questioned witnesses about their marijuana use, that counsel failed to follow through on a “conspiracy” defense, and that he failed to establish the defense that the victims’ allegations were a result of hysteria and suggestibility. We have already considered these issues in our review of defendant’s ineffective assistance of counsel claim. Defendant has not shown that his counsel’s acts or omissions were not informed tactical choices within the range of a reasonable attorney’s competence. (See Pope, supra, 23 Cal.3d at p. 425; Finney, supra, 110 Cal.App.3d at p. 712.) On the record before us, defendant fails to demonstrate that the trial court abused its discretion in denying the motion for a new trial.
C. Sufficiency of the Evidence
Defendant further challenges the sufficiency of the evidence to support the verdict. He argues that E.A.1’s testimony was inconsistent and lacked credibility.
In determining whether the evidence is sufficient to support the verdict, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
Penal Code section 288.5, subdivision (a) requires proof that a defendant “has recurring access to the child, who over a period of time, not less than three months in duration, engages in . . . three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years . . . .” Defendant concedes that there is sufficient evidence that “two discrete events occurred” but argues that “the remaining events were the product of an exaggerated and confused memory or imagination.” To the contrary, however, E.A.1’s testimony shows that she was molested at least five times. She also testified with particularity that the first time defendant molested her occurred within three months of when her father purchased a dirt bike, that defendant molested her when he injured his hand, and that he last molested her within six months of when she told her mother about the abuse. This evidence was sufficient to support the verdict. (See People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176-1177 [Penal Code section 288.5 enacted to resolve issue of continuous sexual abuse victim who recalls she was molested repeatedly over a period of time, but may not be able to recall discrete instances with sufficient precision to prove multiple counts].)
D. Prosecutorial Misconduct
Finally, defendant contends that the prosecutor committed misconduct when he questioned Locklear whether she interviewed other girls that had accused defendant. He argues that the misconduct together with his counsel’s ineffectiveness constituted cumulative prejudice requiring a reversal. Defendant’s claim does not withstand scrutiny.
In questioning Locklear, the following colloquy occurred: “Mr. DeChaine [deputy district attorney]: And in fact, you interviewed other girls in Sonoma County that also accused Tim Boone of — [¶] Mr. Duarte [defense counsel]: Objection, Your Honor, goes beyond the scope, motion to strike. [¶] The Court: Sustained. [¶] By Mr. DeChaine: Do you recall the name [A.C.]? [¶] Mr. Duarte: Objection, goes beyond the scope. [¶] The Court: Sustained. [¶] Mr. Duarte: [Evidence Code, section] 352. [¶] By Mr. DeChaine: Did [D.] talk to you about any other girls? [¶] Mr. Duarte: Objection, hearsay, goes beyond the scope. [¶] The Court: Sustained. [¶] By Mr. DeChaine: Do you recall interviewing a girl of similar age named [S.M.]? [¶] Mr. Duarte: Objection, Your Honor, calls for hearsay, goes beyond the scope. [¶] The Court: Sustained. [¶] I’m going to ask the jurors to step into the jury room for a moment, please.” The court admonished the prosecutor that his questions were bordering on a mistrial, that his examination of the witness was “highly improper” and to limit his cross-examination to issues that were raised on direct examination. Defense counsel sought sanctions and a mistrial. The court denied the motion, reasoning that “no evidence has come in of those questions, they’re questions that the Court sustained objections to. I don’t believe that the jury has been prejudiced in that regard.”
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation].’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill), quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Here, the prosecutor’s questions had the effect of suggesting facts that were not in evidence. To that extent, the questions constituted misconduct because they had a tendency to make the prosecutor his own witness. (Hill, supra, 17 Cal.4th at pp. 827-828.) Defendant, however, was not prejudiced. Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29.)
Here, the court instructed the jury that the attorneys’ questions “are not evidence. Only the witness[es’] answers are evidence. [¶] The attorney[s’] questions are significant only if they help you to understand the witness[es’] answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] During the trial the attorneys may have objected to questions or moved to strike answers given by the witness[es]. I ruled on the objections according to the law. [¶] If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. . . .” We must presume that the jury properly followed the court’s instructions and based its findings on the appropriate evidence. (People v. Pinholster (1992) 1 Cal.4th 865, 919.)
Defendant’s claim of cumulative error fails. Defendant has not shown that he was denied the effective assistance of counsel or that he was prejudiced by any prosecutorial misconduct. There was, thus, no cumulative error. (People v. Beeler (1995) 9 Cal.4th 953, 994 [“[i]f none of the claimed errors were individual errors, they cannot constitute cumulative errors . . .”].)
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.