Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH-34777
SIMONS, J.
Defendant and appellant Joseph Davis, Jr. (appellant), was convicted of four sexual molestation charges. He contends he was deprived of a fair trial due to references made to his custodial status and due to juror inattentiveness. He also contends he received ineffective assistance of counsel. We affirm.
PROCEDURAL BACKGROUND
The Alameda County District Attorney filed a fifth amended information charging appellant with sexual penetration of a child (Pen. Code, § 289, subd. (j)) (count one), sodomy of a child (§ 286, subd. (c)(1)) (count two), aggravated sexual assault of a child by sodomy (§ 269, subd. (a)(3)) (count three), and aggravated sexual assault of a child by sexual penetration (§ 269, subd. (a)(5)) (count four). The information alleged that the first three offenses occurred between June 1, 2001, and March 19, 2003, while the fourth offense occurred on or about September 27, 1995.
All undesignated section references are to the Penal Code.
A jury found appellant guilty as charged. Following the jury’s verdict, appellant filed a motion for new trial through new counsel. The trial court denied the motion and imposed a determinate sentence of eight years on count one, a consecutive term of two years on count two, and indeterminate terms of 15 years to life on counts three and four. The total prison term imposed was 40 years to life.
FACTUAL BACKGROUND
The Prosecution’s Case
The victim in this case is the daughter of T. B. (mother). Mother and appellant met when they were in junior high school and started dating sometime after the victim’s birth in August 1993.
The 1995 Molestation
During the afternoon of September 27, 1995, mother left the victim alone with appellant so that she could go to a job interview. Appellant called mother while she was out and told her that the victim had cut herself on her vagina. When mother arrived home she saw a large cut at the opening of the victim’s vagina. The victim was still bleeding the next morning, and mother took her to the hospital.
Dr. Kevin Whitelaw examined the victim at Children’s Hospital in Oakland. Whitelaw observed redness in the area of the victim’s labia, a bruise inside one of the labia, and a fresh laceration. He attributed the injury to blunt trauma, that is, “putting an object with some degree of force against that area of the vagina that was torn.” He could not think of a mechanism by which the victim could have inflicted the injury on herself. He stated it was likely another individual caused the tearing and the injuries were consistent with molestation.
Mother testified medical personnel told her the victim had been molested, but she did not believe it because she trusted appellant.
The Subsequent Molestations
On March 19, 2003, the victim, who was then nine years old, gave mother a note as mother dropped her off at school. After she dropped the victim off, mother read the note, which stated: “Dear mommy, Joseph he alway[s] stick his private up my butt and I don’t like it so can you not live [sic] me with Joseph and his private goes through my private so that’s all.” Mother picked the victim up from school and took her to Children’s Hospital. The victim told mother about an incident on March 13, during which appellant anally penetrated her after putting baby oil on her anus. The victim told mother this happened on various occasions, more than 20 times.
At the hospital, the victim told Sheriff’s Deputy Neideffer that on March 13, 2003, appellant got angry at her because she left juice on a table. Appellant told her to go upstairs and take her clothes off. She asked appellant if she could go to the bathroom first because she knew he intended to sexually assault her and she intended to stay in the bathroom until her mother came home. Appellant said no. The victim took her clothes off and appellant put his “private in her butt.” Mother told Neideffer the victim said appellant used baby oil in the assault and ejaculated. The victim did not mention those details to Neideffer. The victim told Neideffer this type of assault had occurred 20 times and it first happened when she was six.
During an interview at a multi-disciplinary center, the victim described three specific occasions on which appellant anally penetrated her with his penis. She indicated it had been happening for seven months, but she also said the first time it happened was when she was six. A videotape of the interview was played for the jury.
The victim testified at trial in 2007 that appellant anally penetrated her more than once but less than 10 times. She described three specific occasions.
In a March 2003 interview with police detectives, appellant denied the allegations. He suggested mother might have put the victim up to making the accusations.
The Defense Case
Appellant testified and denied the molestation accusations. He stated the victim had problems at school and lied about notes that were sent home by the teachers. Appellant thought mother had put the victim up to making the accusations. He also said mother was jealous of his relationship with another woman.
In relation to the 1995 incident, appellant testified that he entered the victim’s room after she had taken a nap. She was facing away from him; he walked up behind her, said “boo,” and scared her. Her hand was in her diaper and she pulled her hand out when he scared her. When he subsequently changed her diaper he noticed spots of blood; he then cut the victim’s fingernails.
Appellant also provided an alternate version of one of the subsequent incidents described by the victim, asserting that after she disobeyed him he sent her up to her room and told her he was going to spank her. When he went upstairs he discovered she had defecated in her underpants; he cleaned her with a wipe but did not put anything inside her anus.
DISCUSSION
Appellant contends the trial court erred in denying his motion for new trial. We construe appellant’s notice of appeal and opening brief as renewing, as grounds for reversal of the judgment, the grounds asserted in his motion for new trial. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) When a defendant “reasserts, on appeal, the claims previously raised in an unsuccessful new trial motion” (People v. Ault (2004) 33 Cal.4th 1250, 1261, fn. omitted (Ault)), “article VI, section 13 of the California Constitution obliges the appellate court to conduct an independent examination of the proceedings to determine whether a miscarriage of justice occurred. As in any appeal from a final judgment, the reviewing court must determine for itself whether errors denied a fair trial to the party against whom the judgment was entered.” (Id. at pp. 1261-1262.) In doing so, this court employs the appellate standard of review typically applicable to the particular claim at issue. (See People v. Nesler (1997) 16 Cal.4th 561, 582 (Nesler) [following denial of new trial motion, applying substantial evidence standard of review to trial court’s factual findings and reviewing mixed question of law and fact de novo]; see also Ault, at p. 1263 [discussing Nesler].)
I. Appellant Has Waived Any Claim Based on References to His Custodial Status
Appellant contends he was deprived of a fair trial because the prosecutor and the trial court made a number of references to the fact that he was in custody before and during trial. In particular, the prosecutor made five references to appellant’s custodial status in asking witnesses about having seen or visited defendant in jail. The trial court made two passing, implicit references to appellant’s custodial status. Near the beginning of trial, the court apologized to the jury for a late start, explaining “We had issues with the Sheriff’s Department transportation this morning. And we are, unfortunately, at their mercy because we can’t start until... defendant is in place. So we apologize for the delay.” Later in the trial the court stated, “Good morning. I think I earlier issued a standing apology for any late starts. So that is still in effect. Transportation issues. So we do the best we can.”
Also, defense counsel, possibly inadvertently, elicited the fact that appellant was in custody, when a witness referred to seeing appellant at the jail.
Appellant argues the references to his custodial status constituted prejudicial misconduct on the part of the trial court and prosecutor because they impaired the presumption of innocence. Appellant relies in part on a line of authority involving a defendant’s right to be tried in civilian clothing. It is well established that requiring a defendant to appear at trial in jail clothes violates a defendant’s constitutional rights to due process and equal protection. (Estelle v. Williams (1976) 425 U.S. 501, 503-506 (Estelle); People v. Taylor (1982) 31 Cal.3d 488, 493-495 (Taylor); People v. Meredith (2009) 174 Cal.App.4th 1257, 1262.) “The clothing inexorably leads to speculation about the reason for [the] defendant’s custody status, which distracts the jury from attention to permissible factors relating to guilt. In most instances, parading the defendant before the jury in prison garb only serves to brand the defendant as someone less worthy of respect and credibility than others in the courtroom. ‘The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs.’ [Citation.]” (Taylor, at p. 494; see also Estelle, at pp. 504-505.)
We will assume for the purposes of this appeal that gratuitous references to a defendant’s custodial status are analogous to, although arguably less prejudicial than, requiring a defendant to wear jail clothing during trial. (See People v. Bradford (1997) 15 Cal.4th 1229, 1336 (Bradford) [“It may be inferred that other information, having the same tendency to remind the jury that a defendant is in custody, might have a similar effect” to jail clothing].) However, defense counsel never objected below to any of the trial court’s and prosecutor’s references to appellant’s custodial status. Assuming those references were improper, appellant’s claim of error has been waived due to his failure to object. (See Estelle, supra, 425 U.S. at pp. 512-513 [right to be tried in civilian clothing may be waived]; accord, Taylor, supra, 31 Cal.3d at p. 495.)
In Bradford, the California Supreme Court pointed out that “in certain circumstances a jury inevitably will learn a defendant is in custody for the current charged offense, for example where the jury is presented with the testimony of a jailhouse informant.” (Bradford, supra, 15 Cal.4th at p. 1336; see also People v. Valdez (2004) 32 Cal.4th 73, 121 [escape evidence was probative of [the] defendant’s consciousness of guilt].) In denying the motion for new trial in this case, the trial court suggested the prosecutor’s references to defendant’s custodial status were appropriate for the cross-examination of appellant’s character witnesses because defendant had “made misrepresentations to some of the witnesses about why he was in custody.” Because we conclude that appellant waived his objections, we need not decide whether the questions were proper.
Appellant argues in his reply brief that his failure to object below did not waive his claim because any objections would have been futile, asserting “ ‘you can’t urning the bell.’ ” To the contrary, any prejudice arising from the jury’s knowledge of appellant’s custodial status could have been cured by a timely admonition by the trial court. (People v. Cecil (1982) 127 Cal.App.3d 769, 778; see also People v. Harper (1986) 186 Cal.App.3d 1420, 1429 [“Absent evidence to the contrary, a jury is presumed to follow the instructions of the trial court.”].) Appellant acknowledges this in his opening brief, when he argues his counsel should have requested such an admonition. Moreover, had appellant objected to the first reference to his custodial status, which was the trial court’s first apology for a late start, further references could have been avoided. In that event, this case would have involved only a single indirect and isolated reference, such as was found not to constitute error in Bradford, supra, 15 Cal.4th at page 1336.
Appellant also contends his counsel’s failure to object constituted ineffective assistance of counsel. “Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) That right “entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.]” (Ibid.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; accord, Ledesma, at pp. 216-218.) “Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson) [“When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.”].)
We conclude the record does not demonstrate there could be no rational tactical reason for defense counsel’s failure to object to the references to appellant’s custodial status. In the jail clothing context, it has been pointed out that “it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury. [Citations.]” (Estelle, supra, 425 U.S. at p. 508; see also People v. Scott (1997) 15 Cal.4th 1188, 1214-1215; Taylor, supra, 31 Cal.3d at p. 496; People v. Williams (1991) 228 Cal.App.3d 146, 151.) Similarly, defense counsel could have reasoned in this case that it would elicit sympathy if the jury knew appellant was languishing in jail while the accusations against him were resolved, particularly in light of the defense theory that appellant was the victim of a vengeful plot launched by mother. The trial court’s comment in denying the motion for new trial that “[i]t was known and it was decided that the jury would be told the defendant was in custody,” makes it more probable that counsel made a tactical decision to allow the jury to be informed of appellant’s custodial status.
Thus, the present record does not permit this court to conclude appellant received ineffective assistance of counsel. Any such claim is more properly raised in a petition for writ of habeas corpus. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463 [“ ‘[T]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial.... Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record.... Evidence of the reasons for counsel’s tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition.’ ”]; see also People v. Lopez (2008) 42 Cal.4th 960, 972.)
II. Appellant Has Not Shown He Was Deprived of a Fair Trial Due to Juror Inattentiveness
Appellant contends he was deprived of a fair trial because some jurors were sleeping at various points during the trial. The issue of juror inattentiveness arose on five different occasions at trial. First, the court admonished the jury, “And, members of the jury, I’m going to ask you all to just check yourselves, self-monitor, make sure you are alert and paying attention.” Second, the court questioned Juror No. 3 outside the presence of the jury because the juror seemed to be falling asleep; the juror told the court, “That’s the way I listen.” Third, the court questioned Juror No. 11 outside the presence of the jury; the juror told the court, “I don’t think I missed anything. I wasn’t out” and “I don’t think I dosed totally off.” Fourth, the court and counsel discussed Juror No. 5 outside the presence of the jury because the court observed him “not paying attention”; the court also stated, “In fact, I thought I heard a snore, but I don’t know.” The court admonished the jury: “Now, members of the jury, I understand in the afternoon it gets a little bit warm. You had your lunch, it’s relaxing, but it’s imperative that we all pay attention to the testimony in the case. And if... you need a break or anything, just let us know, and we’ll try to accommodate. Get water. Stand in place if you feel yourself kind of losing attention and everything. Feel free to do that.” Finally, the court admonished Juror No. 4, “And while we have you here, on the issue of sleeping. You have got to remain alert. You have got to make sure that you remain alert[;]... you can’t decide the case if you miss some of the testimony.”
In Bradford, supra, 15 Cal.4th at page 1348, the California Supreme Court explained: “ ‘[a] trial court may discharge a juror who “becomes ill, or upon other good cause shown to the court is found to be unable to perform his [or her] duty....” [Citation.] Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine whether the juror should be discharged. [Citation.] We have recently explained, however, that the mere suggestion of juror “inattention” does not require a formal hearing disrupting the trial of a case. [Citation.]’ [Citation.] [¶] ‘ “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” ’ [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case. [Citation.]”
In Bradford, the trial court acknowledged that a juror was asleep and had been asleep the previous day. (Bradford, supra, 15 Cal.4th at pp. 1348-1349.) Nevertheless, the court stated: “We have observed that ‘[a]lthough implicitly recognizing that juror inattentiveness may constitute misconduct, courts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a layman’s perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.]’ [Citation.]” (Id. at p. 1349.)
As in Bradford, there is no indication in the present record of juror inattentiveness over a substantial period of time, and the “trial court demonstrated its continual scrutiny of the attentiveness and attitude of the jurors.” (Bradford, supra, 15 Cal.4th at p. 1349.) In particular, the record demonstrates the trial court admonished the jurors when it observed inattentiveness, and the court questioned several individual jurors about their apparent inattentiveness. In denying the motion for new trial, the court explained “[t]he court keeps an eye on the jurors and always makes sure that they don’t miss any testimony. And to the extent that the court did observe one of them or others to appear inattentive, the court took a recess, got attention or whatever. But the court is convinced, based on its observation of the jurors, that... there’s been nothing presented that any of those jurors missed anything significant. And, again,... there are no affidavits or anything else to suggest that.” The trial court did not abuse its discretion in failing to conduct a more extensive inquiry. (Ibid.; see also People v. DeSantis (1992) 2 Cal.4th 1198, 1233-1234 [trial court’s “self-directed inquiry,” which involved observing several jurors closely to determine whether they were asleep, was sufficient under the circumstances].)
Because the circumstances did not oblige the trial court to conduct a further inquiry regarding juror inattentiveness, appellant’s counsel was not ineffective in failing to request such further inquiry or to move for a mistrial.
III. Appellant Has Not Shown He Was Deprived of Effective Assistance of Counsel Due to Counsel’s Failure to Object to Hearsay Evidence
Finally, appellant contends he received ineffective assistance of counsel because defense counsel failed to object to the admission of hearsay testimony.
“Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence. [Citations.]” (People v. Freeman (1994) 8 Cal.4th 450, 490-491; see also People v. Mayfield (1993) 5 Cal.4th 142, 188 [rejecting defendant’s assertions on direct appeal of numerous errors on part of his counsel, including failure to object to hearsay evidence, because “[t]hese are tactical choices presented to us on a silent record”].) Accordingly, “appellant must affirmatively show counsel’s deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. [Citations.]” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Appellant’s claim fails because defense counsel could have had rational tactical reasons for not objecting to the testimony at issue. Appellant refers to five particular portions of testimony. First, defense counsel did not object to admission of testimony regarding the results of a 1995 medical examination that showed no sperm was detected in vaginal, rectal, or oral swabs of the victim. It is self-evident that defense counsel may have believed an examination showing no sperm was helpful. Second, defense counsel did not object to admission of mother’s testimony that doctors told her in 1995 that the victim had been molested. The examining doctor subsequently presented quite explicit and detailed testimony explaining why the victim’s 1995 injuries were in all likelihood caused by another individual forcefully putting an object against the victim’s vaginal area. He testified the injuries were “absolutely consistent with a child being molested.” Anticipating that testimony, which was consistent with the medical record of the examination, defense counsel could have concluded it would have been futile to attempt to exclude mother’s brief, cumulative, and less damaging testimony.
In any event, the failure to object could not have been prejudicial in light of the doctor’s subsequent testimony.
The remaining three instances all involve alleged hearsay in various accounts of the molestation, including an account given by the victim to a sheriff’s deputy, an account given by mother to the same deputy, and a description of the victim’s interview at a multi-disciplinary center. The defense strategy was to create doubt as to the victim’s accusations by highlighting the inconsistencies in the various accounts, including inconsistencies between what mother reported and what the victim herself reported. By having before the jury accounts reflecting inconsistencies, counsel was able to argue the victim had fabricated her story at mother’s prompting. In fact, defense counsel highlighted in his closing argument that mother’s account to the deputy included details which the victim never reported. We cannot conclude no reasonable attorney would have elected the trial strategy pursued by defense counsel below.
As the failures to object may have been informed tactical choices “ ‘ “within the range of reasonable competence,’ ’ ” no ineffective assistance of counsel has been shown. (Anderson, supra, 25 Cal.4th at pp. 569-570.)
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., BRUINIERS, J.
The Bradford court also stated that “an isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury.” (Bradford, supra, 15 Cal.4th at p. 1336.) Because appellant waived his objections, we need not decide whether the references to appellant’s custodial status amounted to a constitutional violation.