Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC826455.
ELIA, J.
A jury convicted defendant Juan Jose Deanda of two counts of committing a lewd and lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a)). The jury also found true that defendant had been convicted in the present case of committing a violation of section 288, subdivision (a), against more than one victim within the meaning of section 667.61, subdivisions (b) and (e). The court sentenced defendant to a total prison term of 30 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant has appealed. He argues that the trial court erred in giving new lesser included offense instructions after the jury had already begun deliberating and this error violated his due process rights under the federal Constitution. He further contends that his trial counsel abandoned his defense of innocence in closing argument and this abandonment amounted to a complete breakdown in the adversary process and compels an automatic reversal. He also urges us to find that his trial counsel's supplemental closing argument, given after the new instructions, constituted ineffective assistance of counsel. We affirm.
In addition, defendant has filed a petition for writ of habeas corpus, H036555, which we considered with this appeal. We resolve the petition by separate order.
A. Procedural Background
By information filed September 17, 2009, defendant was originally charged with three counts of lewd and lascivious acts on three different children under the age of 14 years. (§ 288.) Count one was alleged to have been committed against I. in violation of subdivision (a) of section 288. Count two was alleged to have been against P. by the use of force, violence, duress, menace and fear of immediate and unlawful bodily injury in violation of subdivision (b) of section 288. Count three was alleged to have been committed against J. in violation of subdivision (a) of section 288. As to each count, the information further alleged that defendant had been convicted in the present case or cases of committing an offense against more than one victim within the meaning of section 667.61, subdivisions (b) and (e).
On the second day of testimony, the People moved to dismiss count one and amend the information to designate the original count two as count one and the original count three as count two. The court granted the motion and defendant waived arraignment on the amended information.
The prosecutor and defense counsel reached an agreement, recited on the record, for the prosecutor to dismiss the original count one in exchange for defense counsel not introducing evidence surrounding the alleged victim's claims of sexual abuse by defendant or any other person.
The evidence was presented and both sides rested their cases. On the morning of December 2, 2009, the court instructed the jury. After closing arguments, the jury began its deliberations.
On December 3, 2009, the jury sent a written question, which had been signed by the foreman at 9:28 a.m. that morning, to the court. The jury asked with regard to count one: "Do we have the option of considering 288(A) as the charge for the crime against [P.] Doe? In other words—the crime without the force... component?" The court had not instructed the jury on a nonforcible lewd and lascivious act as a lesser included offense of count one but it had given such instruction with regard to the proof necessary to find defendant guilty of count two. The court had also instructed the jury on an attempted violation of section 288, subdivision (a), as a lesser included offense of count two.
The court discussed the jury's question with the attorneys. The prosecutor requested new lesser included offense instructions. Defense counsel objected, stating: "Mr. Deanda has always denied the allegations, and he did so on the stand. Given that that was our defense it was for, again, strategic reasons that we objected to the inclusions of 288(a), as a lesser to Count 1 or any others, and I would just at this point wish to renew that objection." Defense counsel objected to any lesser included offense instructions: "Tactically we're not requesting any lesser included, be it misdemeanor or felony, we are approaching this as an all or nothing case, and given Mr. Deanda's denial of the allegations on the stand that's the purpose of us not wanting any lessers."
After discussions with counsel, the trial court gave supplemental lesser included offense instructions as to both counts and provided new verdict forms to the jury. The new instructions related to count one allowed the jury to alternatively find defendant had committed a nonforcible lewd or lascivious act upon P. in violation of section 288, subdivision (a), or battery in violation of section 243, or assault in violation of section 241 if it did not find defendant guilty as charged. The new instructions related to count two permitted the jury to alternatively find defendant had committed battery in violation of section 243 or assault in violation of section 241 if it did not find defendant guilty as charged in count two or guilty of attempting to commit a lewd or lascivious act.
The court then gave counsel the opportunity to briefly address the jury again. The prosecutor and defense counsel both made supplemental arguments to the jury.
At some point, the jury inquired: "Were our original instructions for 288(A) correct?" The court responded to that question.
The jury resumed its deliberations and found defendant guilty of the lesser included offense of committing a non-forcible lewd or lascivious act as to count one and guilty of committing a non-forcible lewd or lascivious act as charged in count two (§ 288, subd. (a)).
B. Evidence
1. Prosecution's Case in Chief
On April 17, 2007, San Jose police officers were dispatched to an apartment complex with regard to a possible lewd act with a child. The officers went to apartment number 10, where the alleged victim lived. The officers also went to apartment number 33, where the suspect, defendant Deanda, lived. Inside the suspect's apartment, there was a kitchen table, with Fritos and various candies on it, and a chair next to a window.
J.'s mother testified that she was living in apartment number 10 in April 2007. She called the police after an incident involving her then six-year-old daughter J., a kindergartener and the oldest of her three children. Her daughter J. asked her for money to buy an ice cream and soda from the woman who lived in an upstairs apartment with her son. The woman sold sodas, snacks, chips, candy, and ice cream from the window of her apartment to children and adults living in the complex. J. went up the stairs.
The next thing J.'s mother saw was her daughter J. running down the stairs and, when J.'s mother asked her what happened, J. told her "[t]he man tried to touch my parts. J.'s mother said, " 'What, your conchita?' " J. replied, " 'Yes.' " "Conchita" was the word they used to refer to "her intimate part, private part, where she goes pee." Her daughter was very scared. It was important to J.'s mother to know whether the man had touched her or merely tried to touch her. Her daughter clarified that the man did touch her. He stuck his hand underneath her skirt and grabbed at her vaginal area. But J. was wearing shorts underneath. He told J. to come inside, he scratched her, and she ran.
J.'s mother told her daughter to go buy the ice cream but she did not want to go. She told her daughter that she would follow her. She wanted to identify the man. When they got there, her daughter said, "That's the one."
J.'s mother went downstairs to her apartment and told her daughter that she was going to call the police but first she was going to get clothes that were drying. She apparently ran into defendant downstairs and he asked her, " 'Ma'am, do you know what happened to my car?' " She answered no but indicated that she knew what he had done to her daughter and she was going to call the police.
J.'s mother called the police and spoke with an officer in Spanish while everything was fresh in her mind. She acknowledged that J. described a man reaching through the window to touch her. She could not remember telling the police that her daughter told her that he touched her vaginal area with an open hand. She could not remember telling officers that the touching incident had occurred the day before she called police.
A few weeks later, J.'s mother received a phone call from Officer Michel, another police officer, and they discussed what had happened to her daughter. The events were then still fresh in her memory. J.'s mother admitted telling Officer Michel that J. first told her that the man had tried to touch her and J. only later told her that the man did touch her.
J.'s mother variously reported that defendant had tried to touch or touched her daughter J. J.'s mother later explained that she had meant that he touched J.'s shorts, not J.'s panties.
J. testified that she was eight years old and in third grade at the time of trial and would be turning nine the following month. She explained that when she was in kindergarten, her mother told her "to buy sodas and she [her mother] didn't know that he did bad stuff, and I went up to buy sodas and he... tried to touch me." In court, J. identified "he" as defendant.
At trial, J. pointed out in a photograph the apartment window from which a man and a woman usually sold sodas. When she went to the window to buy sodas, defendant was there. J. said she was wearing a flowered pink skirt and red shorts underneath. She said he touched her private part with his hand and she felt his touch. J. ran to her mom.
J. remembered talking to the police who first came to the apartment and she remembered later talking to another police officer in a special room. She did her best to tell the truth both times. She admitted it was hard to remember what happened that day. Although she remembered being shown a picture of a little girl during the second interview, she could not recall circling a part of the girl's body on the diagram. But she confirmed that the area circled in the diagram was the private part that defendant touched and she called it "my parts."
On cross-examination, J. initially agreed that defendant reached out of the window and touched her but then she was unsure. She remembered telling police that the man reached out of the window. She did not remember telling the officer during the second interview that the man tried to lift her skirt. She did not remember telling that officer that she could not feel his hand on her part. J. could not remember how long the incident lasted. But she confirmed that the touching happened outside the apartment.
According to Officer Omar Sanchez, one of the officers dispatched to the apartment complex on April 17, 2007, J.'s mother informed him that her daughter had told her that a neighbor had "touched her in a private area." J.'s mother was clear that her daughter had been touched. J.'s mother reported to him that, on April 17, her daughter asked her for money to buy ice cream. J.'s mother had given the daughter money and then noticed the daughter was hesitating to go buy the ice cream and asked her daughter what was wrong. The daughter said she did not want to go to the apartment because she was afraid she would be touched. J.'s mother reported that her daughter had told her that the previous day, April 16, she had gone to the apartment to buy soda and knocked on the window. The man had opened the window and asked what she wanted. When she told him she wanted some sodas, he "reached out from the window, and with an open palm touched her in her vaginal area." J.'s mother told the officer that, after learning what had happened, she and her daughter had gone to the apartment and identified defendant as the man who had touched her daughter.
Officer Sanchez also talked with J. alone. J. told him that the previous day she had asked her mother for money to go to buy soda. When she got there, she knocked on the window and then spoke to defendant. As she asked for the soda, defendant reached out and with an open palm touched her in the vaginal area. When he asked her where she had been touched, she pointed toward her vaginal area. Defendant had told her to come inside his apartment and she had run home. J. told the officer where the suspect lived on the second story. Officer Sanchez then contacted the suspect.
At trial, Officer Sanchez pointed out apartment 33, the upstairs unit where defendant lived, in a photograph of the building and he identified a photograph of the inside of the apartment. He identified defendant as the suspect whom he had contacted. His report recorded J.'s height as three feet, five inches and defendant Deanda's height as five feet, five inches.
On May 11, 2007, San Jose Police Detective Monica De La Cerda, a certified Spanish speaker and member of the sexual assault unit, recorded a telephone conversation with J.'s mother that had taken place in Spanish. J.'s mother explained that she had sent her daughter upstairs to get a soda from the woman who sold items such as ice cream, soda, and candy from her home, apartment number 33. Her daughter quickly returned without the soda and J.'s mother learned that her daughter was afraid and while the daughter was "up there getting the soda" "a man in that apartment had touched her." The daughter informed her mother that the man had touched her in the vaginal area and told her to come inside the apartment but the daughter had run home. J.'s mother said that her daughter first told her that the man had tried to touch her vaginal area. The mother had said to her daughter, "I need you to tell me the truth." The daughter then said that he did touch her.
About four days after the phone conversation between J.'s mother and Detective De La Cerda, J.'s mother brought J. to the children's interview center to be personally interviewed by the detective. As a sexual assault investigator, Detective De La Cerda had more experience and specialized training in interviewing child victims of sexual assault than other officers. Detective De La Cerda wanted to clarify whether J. had actually been touched and whether the window's size would permit somebody to have reached through the window.
During the interview, J. said that she had gone upstairs to buy a soda. She said she was wearing a black skirt with colored flowers and shorts underneath. J. repeatedly said a man had touched her with his hand and indicated that he had touched her vaginal area. She said that they were both outside by the window when the touching occurred. The detective showed a diagram to J. and asked her to circle the part of the body where she had been touched by defendant. J. circled the vaginal area. J. told the detective that the man had touched her on her skirt and she had shorts underneath. When asked whether she could feel the man's hand on her part, she said that she could not. When the detective asked whether it hurt when the man touched her, she said that it did hurt and pointed to her vaginal area.
P., the alleged victim in count two, testified. He recognized apartment 33 in the photograph as the apartment where his grandmother still lived. It was a two-bedroom apartment and his Uncle Johnny lived there with his grandmother. At one point, he said he remembered her living there for about two years. But he then testified that he remembered going to that apartment since he was seven years old and he was 14 years old at the time of trial.
P. recalled that when he was about seven or eight years old, his Uncle Johnny, his mother's brother, touched his "private" and made P. touch his uncle's "privates" by grabbing P.'s hand and putting it under his uncle's pants. At the time it happened, P. did not tell anyone. At trial, he identified defendant as his Uncle Johnny.
According to P., when he was 13 years old, he began to remember what his uncle had done while he and his little sister were grappling for the TV remote control and tickling each other. P. told his sister to stop because he "didn't want to make the same mistake as [his uncle]" and told his sister he did not want to play anymore. His mother was angry about his behavior and P. went straight to his room. When his mother, who was mad, came to his room, P. told her what had happened with his uncle when he was about seven or eight. His mother reported the incident and a police officer came to talk to him at school in 2008, about a year before trial.
P. described the touching incident involving defendant, which had taken place in his grandmother's apartment. His mother, his two sisters, and he had gone to stay with his grandmother because she was sick and his mother wanted to take care of the grandmother. His grandmother was in her bedroom with P.'s mother and two sisters. P. was in the living room watching defendant, who was lying on the couch and playing PlayStation 2. Defendant told P. to come close so P. could see; P. lay down next to defendant. After a little while, defendant slowly reached under P.'s boxers and shorts, defendant put his hand on P.'s testicles and "private, " by which P. meant penis. Defendant also slowly grabbed P.'s right hand and held it "a little bit tight" and put it under his own boxers and placed P.'s hand onto defendant's testicles and "private." P. recalled that it felt weird to have his hand under his uncle's underwear and he was confused and did not know what was happening. When asked if it was his choice to put his hand there, P. replied, "I'm not sure." Defendant was moving P.'s hand "upward, down" on defendant's private area. It felt to P. like "[s]omebody else was choosing" where his hand went. P. felt defendant's hand on his skin and P. felt defendant's skin. Defendant held P.'s hand on defendant's private area for about one or two minutes. When P.'s mother came of his grandmother's room, defendant quickly removed his hand and P.'s hand. P. thought that his mother did not see anything.
P. recalled that he was sent to bed but he could not sleep. At the time, he did not understand what had happened and he was confused; he did not tell anybody. P. continued to see defendant and nothing like that ever happened again. He stated that, during the previous school year, he started to remember what happened to him while learning about sex in school.
On cross-examination, P. agreed that he had previously stated in court that learning about abuse in school jogged his memory and prompted him to tell his mother about the touching incident. He acknowledged that he had not told police about the tickling incident with his sister and being in trouble with his mother but said that the officer did not ask him that type of question.
P. acknowledged that he had previously talked with someone from Child Protective Services (CPS) about being hit by his father. The CPS interview was in response to a June 24, 2003 referral. P. could not remember that he had no bruises or marks on him that day and he could not remember saying that his father hit him all the time. He said he had been using his own words.
At trial, P.'s mother indicated that, on the day in 2008 when P. disclosed the incident with defendant, she had been surreptitiously listening to P. and his younger sister playing in her bedroom because she was concerned when it became very quiet and "[t]hey were touching the bodies" and she did not like them to be "touching their bodies." When P. came out, she lied that she had seen the way they were playing and took him to his room because he was in trouble. She asked him why he was playing that way and indicated that she did not like the way he was behaving. He told her about the incident with his uncle, whom P.'s mother identified in the courtroom as defendant. The next day, they talked more about the incident.
P.'s mother testified that P. told her that his uncle and he had been playing Nintendo while lying down in her mother's living room and defendant had touched P.'s private parts and then had taken P.'s hand to touch his own private parts. P. said the touch was under their clothing. P. had wanted to play Nintendo and defendant had said, "it's all right, let him play with me for awhile, for a little longer." When she later came out of the bedroom and turned toward the living room, P. and defendant stood up and they appeared surprised. She told P. to go to sleep.
When she heard about the incident from P., she remembered when it had happened. She and her children were sleeping at her mother's house and her mother, her daughters, and she had gone to the mother's bedroom.
P.'s mother reported the incident to a counselor at Kaiser. She was contacted by a detective.
Carl Lewis testified as an expert on "Child Sexual Abuse Accommodation Syndrome" (CSAAS). The syndrome is information to debunk myths or mistaken beliefs about how sexually abused children behave. Dr. Roland Summit coined the term and he believed it was important to make the adult community aware of the commonly held, but erroneous, beliefs that caused people to incorrectly reject children's allegations of sexual assault.
The five CSAAS categories include (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, unconvincing disclosure and (5) retraction. CSAAS is not a scientific instrument; it is not diagnostic. The main message of the syndrome is to not reject a child's testimony out of hand but to look at the whole picture.
Lewis testified that secrecy describes the fact that sexual abuse occurs when the offender is alone or somehow isolated with the child. The abuse may occur in a public setting, but the offender may camouflage the behavior so it is not readily recognizable. The offender may go to some length to create an atmosphere of secrecy. The offender might wait until everyone else has gone to bed or left the house or the offender might go to a secluded part of the house, close the door, and turn up the television to muffle any sound. An offender can reinforce this sense of secrecy verbally or nonverbally. The offender might by a knowing glance communicate that this is a secret. The offender might indicate disclosure would cause bad things to happen, get the child in trouble, or not be believed or the offender might make overt threats such I will kill you, your family or your dog. The child receives the message that the child cannot talk about the abuse.
According to Lewis, child sexual abuse victims can experience a sense of helplessness because they are unable to resist, physically or emotionally, the sexual advances of an adult, particularly a loving, trusted adult. The struggle to bring disclosure of sexual abuse to light reinforces the feeling of helplessness. It is common for a child victim to "let out a little bit of information and then gauge the reaction, and if the child feels safe then the child might let out a little bit more information." Sometimes a non-offending caretaker will not recognize a cry for help, such as a child victim saying he does not want to be left alone or go to the store with someone, and the child will think that "I tried to get help, but it didn't work."
Lewis testified with regard to entrapment and accommodation that, when children are suffering sexual abuse and trapped by circumstances, they accommodate so they can go on with their lives, such as going to school or interacting with friends. The most common accommodation is acting as if nothing is wrong or actually denying anything is wrong if asked outright. The fact that a child continues to interact with or be around the offender does not necessarily mean that the abuse did not happen.
Lewis explained the disclosure is delayed, conflicted and unconvincing primarily because of the internal conflict of the children, who are weighing the pros and cons of disclosure. Since the consequences of disclosure may be unknown, children victims may delay disclosing the abuse. Delay is common. Children victims may give seemingly conflicting statements regarding what occurred. Children might minimize what occurred by saying the offender "tried to" molest them. Children also might not be familiar with certain terminology and there may be communication gaps and misunderstandings. Children have difficulty remembering how they initially reported the facts. When a child finally makes a disclosure, it is usually done at a time or in a manner that makes the child unbelievable, such as when a child is being disciplined.
Lewis explained the last category of retraction. Because disclosure of abuse can cause uncomfortable attention to be focused on a child and the child's family and disrupt the family, the child may want things to go back to how they were before and either minimize the abuse or completely take back allegations.
2. Defense Case
At the time of trial, Coleen Kohtz was the law enforcement liaison and after hours coordinator for the Santa Clara County Department of Social Services. In 2003, she was an emergency response social worker and investigated child abuse allegations made on the Department's hotline. She investigated a referral, dated June 24, 2003, made by a Kaiser therapist indicating that a mother reported that her son P. was being hit with a belt and shoe by his father. She contacted and spoke with P., who was eager to speak with her. P. told her that his father hit him all the time. She did not personally observe any marks or bruises but acknowledged that there are not always visible bruises. P. could not be specific about the last time he had been hit and did not appear to be using his own words. On cross-examination, she agreed that the fact that a child has no bruises, or is eager to speak with her, or is not using his own words does not necessarily mean that the child was not beaten.
William VanCaleave, a Santa Clara County investigator with the Public Defender's Office, took measurements of the relevant window of apartment 33. The base of the window to the ground was 36 inches or three feet. The left pane, looking at the window from the outside, slid to the right and was 22 inches wide. The window ledge was six inches wide from the inside to the outside.
Defendant Deanda testified on his own behalf. He had very recently turned 36 years old. He lived at the apartment complex from 1995 through 2007. He was living in apartment number 33 during the time period when the incident with P. allegedly occurred and in April 2007 when the incident with J. allegedly occurred.
Defendant had known his nephew P., his sister's son, since P. was born. He saw his sister and her children every day because they visited his mother. He said his family "practically live[d] at [his] house." Defendant testified that P.'s family visited the apartment a lot and he had played PlayStation with P. many times. He testified that his mother was frequently unwell and she been sick all the time since 2000.
Defendant could not remember the particular day that P. was taking about. According to defendant, P. was lying. He did not know why P. would say something like that.
Defendant identified the table in his apartment with candies on it in a photograph. Defendant acknowledged that his mother and he sold candy and sodas from their apartment window to residents of the apartment complex but said that his mother was the primary salesperson. It was a common practice in the Hispanic community. After school and after work were busy times.
Defendant acknowledged seeing J. a couple of times at the apartment complex. On April 17, 2007, defendant saw J. on his way out of his apartment. When he opened his door, she was outside and asked him for some ice cream. Defendant went to get some ice cream from the kitchen and opened the fridge and, as he was asking her what flavor, he saw J.'s mom grab J.'s arm and pull her from the doorway. He was arrested that day.
Defendant denied that J. had come to the window to buy soda on April 16 and denied that he had reached through the window and touched J. and told her to come inside the apartment. He did not know what she was talking about. He indicated that nothing like that had happened.
On cross-examination, defendant was unable to remember the time between 2002 and 2004 when his mother had been ill upon her return from Mexico and his sister and her children, including P., had spent the night at his apartment in order to care for his mother with whom he lived. Defendant indicated that his sister probably slept over at the apartment two or three times a month between 2002 and 2004 and his mother was sick every time she returned from Mexico. Defendant ultimately admitted that it was "not that often" that his mother returned from Mexico and his sister "felt she needed to spend the night to help take care of her." Defendant eventually conceded that his mother went to Mexico at most once a year.
On cross-examination, defendant acknowledged that he sometimes played PlayStation lying down. But he denied he played it lying down on the couch as described by P. He then claimed to have "laid down on the couch... but not all the way." He finally asserted that he had never played PlayStation lying down because "you can't really play it." When asked if P. was wrong when he said defendant was lying down playing PlayStation, defendant replied, "I guess."
When asked on cross-examination whether he recalled "any occasions where you said to [P.], hey, come over and watch what I'm playing on PlayStation, " defendant replied, "Lots of times." Later, defendant repeatedly denied ever saying to P., "come here... while I play PlayStation."
On cross-examination, defendant confirmed that "many times" he and P. "would be up together while everyone else [was] in another bedroom with the door closed." He indicated the lights were probably off. But he later testified that it had never happened that his mom, sister and nieces were in his mother's room with the door closed because the door was always open. He also denied that he and P. were ever in the living room with the lights off.
Defendant denied ever lying next to P. on the couch and he testified that P. had lied when he said the two of them had been lying next to each other on the couch. He denied putting his hand on P.'s penis and taking P.'s hand and putting it on his own penis. He claimed that he had a good relationship with P.
On cross-examination, defendant could not recall ever selling anything to J. out of the window. But when subsequently asked whether he sold things to J. out of the window, he said, "Yeah." He admitted selling her candies and soda. He testified that he had sold sodas to J. only once or twice. He later testified that he had sold sodas to her "[p]robably two or three times." Defendant described placing one knee on the chair next to the window and putting items on the window rail.
Defendant maintained that, if J. said she had come to the window on either April 16 or April 17, she was lying. He denied ever reaching out the window and grabbing J.'s vaginal area. He said J. had come to his door and asked for ice cream on April 17. People usually come to the window and it was unusual for J. to knock on the door.
On cross-examination, defendant could not recall J. or her mother saying anything before J. was pulled away. He could not remember J.'s mother, while she was standing in front of his apartment, asking her daughter J., "Is that him?" When questioned whether he was saying he did not remember, defendant revised his answer, stating, "It didn't happen actually." The prosecutor inquired, "And you told the police that you could see the mom pointing at him and asking the victim, 'Is that him'?" Petitioner then recalled that the mother had pointed at him and asked, "Is that him?" but that exchange had occurred when he was "coming from the parking lot." Defendant asked J.'s mother what was going on and the mother accused defendant of touching her daughter.
Defendant maintained that neither P. nor J. was truthful.
C. Supplemental Instructions on Lesser Included Offenses
Defendant argues that the court committed reversible error by instructing the jury, for the first time, on lesser included offenses after the jury had already commenced its deliberations. He maintains that such instructions contravened California case law, citing People v. Stouter (1904) 142 Cal. 146 and People v. Jennings (1972) 22 Cal.App.3d 945. He also discusses a number of out-of-state cases. In addition, he argues that the new lesser included offense instructions "violated [his] due process rights by depriving him of a fundamentally fair trial."
In the 1904 case of People v. Stouter, supra, 142 Cal. 146, the defendant was charged with committing a lewd or lascivious act upon a girl under 14 years of age. (Id. at p. 147.) The information specifically alleged that the defendant had "willfully, unlawfully, feloniously, and lewdly" inserted his finger in the girl's vagina and the court instructed the jury that to reach a guilty verdict it needed to find, beyond a reasonable doubt, that defendant did insert his finger into her vagina. (Ibid.) After the jury had deliberated nearly 14 hours without reaching a verdict, the jury asked the court a couple of questions, including, " 'Would the attempt to insert the finger in the vagina be sufficient to render a verdict of guilty?' " (Id. at p. 148.) The court indicated that "a complete entrance was not necessary, but that 'any penetration of the vagina, or any insertion of the finger into the vagina, would be sufficient.' " (Ibid.) Sometime after 9:40 p.m. the next evening, after the jury had deliberated over 24 hours and still could not agree and after "a good deal of conversation between the jurors and the court, by which the opinions of most of the jurors were very fully disclosed, " the court instructed the jury on attempt and "read section 1159 of the Penal Code" to the jury. (Id. at p. 149.) The jury then retired and convicted the defendant of attempt. (Ibid.)
Section 1159 provides: "The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense."
The Supreme Court reversed, stating: "There is no doubt of the general rule that after a jury have retired for consultation they may be called into court for further instructions; but we think that it was erroneous and unfair to defendant to give the last instruction as to the attempt, at the time and under the circumstances at and under which it was given. The jury had been out for a very long time without being able to agree under the instructions which had been given them, and which had been on subsequent occasions repeatedly reiterated, and many of the jurors had practically told the court what their opinions were, and that if the instructions were changed so as to meet their views they could find a verdict of guilty, contrary to the former instructions. The project of instructing the jury for the first time, after they had been unable to agree for 24 hours, that they might, notwithstanding the former instructions, convict the defendant of the attempt, was clearly an afterthought suggested by the statements of the jurors as to how they then stood, and apparently intended to help them, not generally to arrive at a verdict, but to arrive at some sort of a verdict of guilty. Such a proceeding is, we think, a most dangerous interference with the right of a defendant to a fair trial. We do not know what occurred in the jury room. Some of the jurors may have believed the evidence too slight to convict the defendant of any offense, and, for the purpose of argument, may have admitted that he might have been convicted of the attempt if the former instructions had allowed it, and after the last instruction had been given may have been embarrassed by their former admissions. Moreover, the jury might very well have considered the last instruction as an intimation of the desire of the court that the defendant be convicted of some offense. Jurors exhausted by a long confinement, and naturally desirous of being released, are not in a suitable frame of mind to thoroughly consider an entirely new phase of the case under a new instruction which might fairly be construed as an expression of the court hostile to the defendant." (Id. at pp. 149-150.)
In People v. Jennings, supra, 22 Cal.App.3d 945, the jury returned to court three times during its deliberations for further instruction and, on the third occasion, the jury reported that it was unable to reach a verdict. (Id. at p. 948.) The court then gave new instructions on simple assault and assault with a deadly weapon in violation of subdivision (a) of section 245 as lesser included offenses of charged crimes and, after deliberating for 20 minutes, the jury found the defendant guilty of three counts of assault with a deadly weapon in violation of subdivision (a) of section 245 of the Penal Code. (Id. at pp. 947-948.) The appellate court reversed, finding that the case at bench was not materially different from People v. Stouter. (Id. at p. 948.) Like the trial court in Stouter, the trial court in Jennings had "introduce[d], in the midst of jury deliberation, a new and theretofore unmentioned offense." (Id. at p. 949, fn. omitted.)
We first note that the 1904 case of People v. Stouter predated by decades the clear recognition of the rule that a trial court must instruct sua sponte on lesser included offenses as part of its duty to instruct sua sponte on the general principles of law governing the case. (See People v. Hood (1969) 1 Cal.3d 444, 449-450 [overruling earlier cases to the extent they hold that it is not error for a trial court to fail to instruct on lesser included offenses on its own motion, even though such an instruction would be supported by the evidence].) " ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." (People v. St. Martin (1970) 1 Cal.3d 524, 531....) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444...), but not when there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479...; People v. Osuna (1969) 70 Cal.2d 759, 767....) The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. (People v. Mosher (1969) 1 Cal.3d 379, 393...; People v. Graham (1969) 71 Cal.2d 303, 319....) Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. ([ ] St. Martin, supra, 1 Cal.3d 524, 533....)' (Sedeno, supra, 10 Cal.3d 703, 715-716...; see Barton, supra, 12 Cal.4th at pp. 194-198....)" (People v. Breverman (1998) 19 Cal.4th 142, 154-155.) No argument is being made here that the lesser included offense instructions were inappropriate based on the evidence in the case.
If a court fails to comply with its obligation to instruct sua sponte on lesser included offenses before the case is submitted to the jury, may it comply after the case is submitted to the jury for decision? We are unwilling to say that courts may never comply with their instructional obligation after the case has been submitted to the jury since such a rule would not necessarily serve the end of justice and would build in potentially reversible trial error. It is noteworthy that Stouter and the three principal out-of-state cases cited by defendant do not apply a per se rule of reversal and examine the particular facts and circumstances of each case. (People v. Stouter, supra, 142 Cal. at p. 150; State v. Thurmond (2004) 677 N.W.2d 655, 662, fn. 7; U.S. v. Welbeck (1998) 145 F.3d 493, 496-497, cert. den. sub. nom. Welbeck v. U.S. (1998) 525 U.S. 892 [119 S.Ct. 212]; State v. Amos (1977) 553 S.W.2d 700, 704-705.)
Further, this case is distinguishable from Stouter and Jennings. The jury in this case was not deadlocked and had not been engaged in protracted deliberations when the trial court gave the new lesser included offense instructions. (Cf. People v. Stouter, supra, 142 Cal. at pp. 149-150 [jury unable to agree after more than 24 hours of deliberation]; People v. Jennings, supra, 22 Cal.App.3d at p. 948 [jury reported it was unable to reach verdict despite twice previously receiving further instructions].) The circumstance that a jury returns with its verdict soon after receiving a supplemental instruction suggests a possibility of coercion but is not determinative. (See Lowenfield v. Phelps (1988) 484 U.S. 231, 240 [108 S.Ct. 546] [supplemental instruction after jury initially unable to agree on death penalty verdict was not coercive].) Unlike the juries in Stouter and Jennings, however, the jury in this case did not immediately return its verdicts following the new lesser included offense instructions. (Cf. People v. Stouter, supra, 142 Cal. at p. 149 [after receiving new instructions late in the evening after a day of deliberations, jury retired and convicted defendant of attempt]; People v. Jennings, supra, 22 Cal.App.3d at p. 948 [after new instructions, jury retired and 20 minutes later returned with guilty verdicts].)
The court gave its original jury instructions at 11:00 a.m. and the jury retired to deliberate. At 11:40 a.m., the court received a jury request for the transcript of a police interview and, after lunch, the jury reviewed the DVD of the interview using the transcript as a reference. The jury resumed deliberations shortly after 2:00 p.m. and took its evening recess at about 4:30 p.m. When the jury returned to court the next day, it resumed deliberations at 9:00 a.m. and at 9:30 a.m. the court received two more inquiries. The first was a request to rehear testimony. The second inquiry included the question whether it was an option to find defendant guilty of a violation of section 288, subdivision (a), in regard to the charge involving P. Between 10:00 a.m. and 10:45 a.m., the reporter read a transcript of testimony back to the jury. The jurors resumed their deliberations at about 11:00 a.m. and took their lunch break at 12:00 p.m. At 1:30 p.m., the court informed the jurors that it was presenting new verdict forms with three alternate counts to count one and three alternate counts to count two. It then proceeded to explain the alternate counts and read the new instructions.
The record does not suggest the jury in this case was pushed to reach a verdict as in Stouter. At about 2:15 p.m. on December 3, 2009, after supplemental instruction and supplemental closing arguments, the jury resumed its deliberations. The jury took a 15 minute recess in the afternoon and then recessed for the evening at 4:45 p.m. The following morning the jury resumed deliberations. It took a one-hour break during midday. The court received notice that the jury reached its verdicts at about 1:35 p.m. Thus, the jurors engaged in a substantial period of deliberations following their receipt of the new instructions.
The sequence and timing of the supplemental instructions and jury verdicts do not demonstrate that the court's supplemental charge had a potential coercive effect on the jury. In addition, the content of the supplemental instructions does not suggest that the court was recommending a finding of guilt on some offense. In those instructions, the jurors were told: "If all of you agree the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater or lesser crimes complete and sign the verdict form for not guilty of the greater crime and the verdict form for not guilty of the lesser crimes. They were also instructed: "If all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, inform me of your disagreement, and do not complete or sign any verdict form for that crime or the lesser crime."
Moreover, defendant has failed to identify any prejudice from the supplemental lesser included offense instructions. His defense was that he did not touch J. or P. His defense to the charged or lesser included offenses was not compromised by the new instructions. In addition, the court permitted counsel to make further closing arguments to the jury following the new instructions. While the new lesser included offense instructions provided the jury with an alternative to straight acquittal if it found petitioner had committed a lewd or lascivious act against P. but he had not used "force, violence, duress, menace, or fear" (§ 288, subd. (b)), this is not the kind of undue prejudice or distortion of the fact finding process that due process protects.
Defendant further contends that the new instructions, in conjunction with the judge's response to the jury's question whether the original instructions on section 288, subdivision (a) were correct, violated his right to due process under the Fourteenth Amendment to the U.S. Constitution by unfairly implying that the trial court was recommending the jury find him guilty of some offense. The court answered the jury's inquiry: "Yes, they were, and that is because prior to the new verdict forms that you have, the 288(a) count addressed only [J.]. [¶] And now with the new verdict forms that you have, ... there is a 288(a) count or alternate count with respect to each of [J.] and [P.], and part of the work that I do with lawyers is to be sure that the legal instructions reflect the evidence that you've received. So I'm hopeful that that is a useful answer to the question." (Italics added.)
"Whether statements of a trial judge amount to coercion of a verdict is peculiarly dependent upon the facts of each case." (People v. Burton (1961) 55 Cal.2d 328, 356, abrogated on another point by People v. Brown (1994) 8 Cal.4th 746, 748-750, 762-763; see People v. Breaux (1991) 1 Cal.4th 281, 319 [defendant contended trial court placed undue pressure upon jury to return the death verdict in capital case; "question of coercion is necessarily dependent on the facts and circumstances of each case"]; see also Lowenfield v. Phelps, supra, 484 U.S. 231, 233, 237 [108 S.Ct. 546] [review of contention that jury was improperly coerced to return death sentence by judicial inquiries of jury and supplemental instruction after jury reported inability to reach a decision as to penalty requires reviewing court to consider context and all circumstances].) "The basic question... is whether the remarks of the court, viewed in the totality of applicable circumstances, operate to displace the independent judgment of the jury in favor of considerations of compromise and expediency." (People v. Carter (1968) 68 Cal.2d 810, 817; see People v. Gainer (1977) 19 Cal.3d 835, 850 [judicial evaluation of challenged Allen instruction required broad inquiry "whether the instructions tend to impose such pressure on jurors to reach a verdict that we are uncertain of the accuracy and integrity of the jury's stated conclusion" and required "a generalized assessment of the potential effect of a given instruction on the fact finding process"].)
Here, the court's new instructions contemplated all possible outcomes, guilty verdicts, not guilty verdicts, and jury disagreement. Read in context, the court's response was not reasonably likely to be understood by the jurors as urging or pressuring them to reach any particular outcome or suggesting any judicial opinion regarding guilt.
There were conflicts in the evidence and credibility issues to be resolved by the jurors, who had been repeatedly told by the court, both before and after the evidence was presented, that they must decide "what the facts are" based on the evidence presented. Even before any witness was called, the court instructed the jury: "Do not take anything I say or do during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." In its main charge, the court had instructed: "Some of these instructions may not apply depending on your findings about the facts of the case. Do not assume just because I gave a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." The court had admonished the jurors: "If I repeat any instruction or idea do not conclude that it is more important than any other instruction or idea just because I repeated it." The court had further instructed them to "[p]ay careful attention to all of these instructions and consider them together." After the original closing arguments, the court had given additional instructions, including the following: "It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses or what your verdict should be." When the court gave the supplemental lesser included offense instructions, it cautioned: "There is no significance to the fact that I am reading some instructions and not others. All the instructions in the new packet you will receive will apply to the extent that you decide they are applicable based on the facts." Based on the appellate record, we have no reason to believe that the jurors disregarded any instruction or failed to consider the instructions as a whole.
Unlike the out-of-state cases cited by defendant, nothing in the record suggests that the jury in this case was stalled or deadlocked or driven by a desire to bring deliberations to a quick close. (Cf. State v. Thurmond, supra, 677 N.W.2d 655, 658 [jury sent note that it was at a "standstill"], 664 [verdict "shortly after the post-summation jury instructions arouse[d] suspicion that the jury failed to thoughtfully consider the lesser included offenses and, instead, was driven by a desire to be released"]; U.S. v. Welbeck, supra, 145 F.3d 493, 496 [jury sent a note indicating it was stuck on element of offense and within 15 minutes of lesser included offense instruction, the jury returned a guilty verdict on the lesser included offense] 497-499 [but judgment affirmed because no unfair prejudice]; State v. Amos, supra, 553 S.W.2d 700, 704 [after instruction on lesser offense, "the jury returned their verdict of guilty in a very short time probably not over ten minutes at the most"], 705 ["jury was at least stalled in their deliberations"].) We conclude that the timing and content of the supplemental instructions in conjunction with the challenged judicial comment did not tend to exert undue pressure upon the jury to reach a guilty verdict, distort the fact-finding process, or otherwise unfairly compromise the defense's theory of the case. Defendant was not deprived of a fundamentally fair trial.
Lastly, defendant argues that "[c]onsidering the dangerousness of the situation, " "the court should have strongly admonished the jury that instructions regarding this new, lesser included crime should not be construed as the court's endorsement of it." While the court could have repeated its earlier instructions warning jurors not to "assume just because I gave a particular instruction that I am suggesting anything about the facts" and not to "take anything I say or do during the trial as an indication of what I think about the facts, the witnesses or what your verdict should be, " the failure to repeat them or give the requested instruction did not render the trial unfair. In the absence of any reason to believe otherwise, we presume the jury followed the court's instructions. (See People v. Martinez (2010) 47 Cal.4th 911, 957; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
D. Ineffective Assistance of Counsel
1. Failure to Object to Supplemental Lesser Included Offense Instructions
Defendant argues that his trial counsel provided ineffective assistance by failing to object to the new lesser included offense instructions on the grounds now being urged on appeal. Since we have rejected those contentions on the merits, defendant's related claim of ineffective assistance of counsel fails. There is no reasonable probability that the result would have been more favorable to defendant had his trial counsel objected to the new lesser included offense instructions for the reasons now suggested. (See Strickland v. Washington (1984) 466 U.S. 668, 687, 692-694 [104 S.Ct. 2052].)
2. Closing Argument
a. Cronic
Defendant contends that his trial counsel abandoned the defense theory of innocence in closing argument, which compels an automatic reversal under U.S. v. Cronic (1984) 466 U.S. 648 [104 S.Ct. 2039]. Defendant claims that his counsel's closing argument "fatally undermined" his credibility and effectively repudiated defendant's testimony. He asserts that once he testified in his own behalf and denied any wrongdoing, "his entire defense necessarily depended upon the jury believing his testimony" and claims "[t]here was no legitimate tactical reason for trial counsel's suggestion that the jury ignore [his] testimony." He urges us to find that there was a breakdown in the adversary process rendering his conviction presumptively unreliable.
In the initial closing argument, defense counsel asked, "What was the evidence that you heard from that witness stand? What did [J.] say and [P.] say, and does what they said rise to the level of proof beyond a reasonable doubt?" He argued that "even though one witness is enough in order to convict that witness's testimony and that witness's words have got be gold in order for you to be able to rely on them." He pointed out why the testimony of each alleged victim was unreliable.
Counsel also argued that the prosecution had the burden of proving defendant guilty beyond a reasonable doubt, which applied even if the jurors were skeptical of defendant's testimony. He acknowledged the "built-in" motive to lie that might exist for any defendant that testified and affect jurors' assessment of credibility. He argued: "[I]t's not who do you believe, do you believe [P.] and [J.], or do you believe Mr. Deanda. That isn't what your role is. That isn't what the Judge has instructed you to do. The burden is on Ms. West. She has to prove beyond a reasonable doubt that my client is guilty. My client doesn't have to prove his innocence." He argued: "Mr. Deanda didn't have to testify. Mr. Deanda did testify. I'm sure a number of you may not believe 100 percent of what he said, okay. Maybe there's some of you that believe 80 percent of what he said, maybe there are some of you that believe zero percent of what he said. So my suggestion in evaluating the case, the proper way, that the law instructs you to do is throw out his testimony entirely. Okay. Completely disregard, you believe zero percent of what he said. But it doesn't have any bearing, the fact that he testified, the fact that you believe zero percent of what he said. If that's the case, you know, extreme, I'm going to the logical extreme here, that doesn't change the fact that Ms. West has the burden of proving this case beyond a reasonable doubt. That's the state of the law."
Although defendant now claims that there were no glaring inconsistencies or contradictions in his testimony, his testimony was inconsistent in a multitude of respects. Trial counsel was in a position to observe his client's demeanor and gauge the jury's reaction to his testimony. Defendant's trial counsel may have reasonably determined that defendant had not come across as credible and, consequently, he should not comment on defendant's credibility based on the evidence. It was not permissible for counsel to vouch for the defendant's credibility based on personal belief or evidence outside the record. (See People v. Martinez, supra, 47 Cal.4th at p. 958; People v. Tyler (1991) 233 Cal.App.3d 1456, 1459-1460.)
At the time of his trial counsel's original argument, the jury had been instructed on only section 288, subdivision (b) (a forcible lewd or lascivious act) and not on section 288, subdivision (a), with respect to count one. Trial counsel may have made the reasonable tactical decision, based on defendant's poor performance as a witness, to downplay defendant's testimony, to aim for an acquittal on count one based on the prosecution's failure to prove that defendant had used "use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury" in committing the offense against P. given the slight evidence of that element of the offense (see § 288, subd. (b)), and to focus on the inconsistencies in the evidence with respect to the alleged offense against J. in his closing argument. The appellate record does not demonstrate that defendant's trial counsel actually repudiated defendant's testimony or conceded his guilt.
The supplemental closing argument was not a complete "do-over" of the original argument but an opportunity to address the lesser included offenses upon which the jury had been newly instructed. After he was unable to forestall the supplemental instructions, defendant's trial counsel made the decision to focus on the issue of force since the jury's question suggested that it was grappling with that issue and this appears to be a reasonable tactic, especially in light of defendant's credibility issues. Counsel stated that "it's clear from your question that you passed along to the Judge this morning that you're thinking about this idea of force." He asked, "is the allegations made by [P.], is that 288(a) or is that a 288(b)?" He stated, "The big difference between those two counts is force, and what does force mean?" The gist of the supplemental argument was that even P.'s testimony, which was the only evidence of criminal wrongdoing in count one, did not show a forcible offense. Counsel referred to P.'s "allegations" and did not suggest P. was more believable than defendant. Defendant's characterization of this argument as a concession of guilt is inaccurate.
Furthermore, "[w]hen the time came to argue the case to the jury, ... counsel had to base the tactical decisions on how the trial actually went, not how it might have gone." (People v. Freeman (1994) 8 Cal.4th 450, 498.) It was a reasonable strategy for defense counsel to acknowledge the jurors' possible skepticism toward defendant's testimony to maintain his credibility with the jury. (See People v. Freeman, supra, 8 Cal.4th at p. 498 [importance of maintaining credibility before the jury]; People v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061 ["good trial tactics often demand complete candor with the jury, and... in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client's innocence"].) Defendant complains that his "Trial counsel never once reminded the jury that [he] denied any improper touching" or the prosecution had to prove every element of the offense and his trial counsel did not argue that he committed no crime against P. or ask the jury find him not guilty. "The mere circumstance that a different, or better, argument could have been made is not a sufficient basis for finding deficient performance by defense counsel. (People v. Coddington, supra, 23 Cal.4th 529, 655...; People v. Mincey (1992) 2 Cal.4th 408, 471....)" (People v. Ledesma (2006) 39 Cal.4th 641, 748.) "Even if some of the arguments [not made] would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them.... [J]udicious selection of arguments for summation is a core exercise of defense counsel's discretion." (Yarborough v. Gentry (2003) 540 U.S. 1, 7-8 [124 S.Ct. 1] (per curiam).)
Trial counsel's closing argument does not reflect a breakdown of the adversarial process and defendant's convictions are not subject to Cronic's rule of automatic reversal. In U.S. v. Cronic, supra, 466 U.S. 648, the Supreme Court "identified three situations implicating the right to counsel that involved circumstances 'so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.' [U.S. v. Cronic, supra, 466 U.S. at pp.] 658-659, 104 S.Ct. 2039." (Bell v. Cone (2002) 535 U.S. 685, 695 [122 S.Ct. 1843].) Cronic's presumption of prejudice applies only where: (1) there is "the complete denial of counsel, " (2) "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, " (3) representation occurs under circumstances that make it unlikely that even "fully competent" counsel could provide effective assistance. (U.S. v. Cronic, supra, 466 U.S. at pp. 658-660.) Otherwise, to establish ineffective assistance of counsel, defendant must generally show that his counsel's performance was both deficient and prejudicial. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 691-692, 694, see U.S. v. Cronic, supra, 466 U.S. at p. 659, fn. 26 ["there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt"].)
In the first situation, "a trial is unfair if the accused is denied counsel at a critical stage of his trial." (U.S. v. Cronic, supra, 466 U.S. at p. 659, fn. omitted.) "The [Supreme] Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. [Citations.]" (Id. at p. 659, fn. 25.)
In the second situation, the absence of meaningful adversarial testing must be complete. (Id. at p. 659.) In Bell v. Cone, supra, 535 U.S. 685, a capital defendant unsuccessfully contended that "Cronic, not Strickland, govern[ed] the analysis of his claim" (id. at p. 694) that "his counsel rendered ineffective assistance during the sentencing phase by failing to present mitigating evidence and by waiving final argument." (Id. at p. 692.) The Supreme Court stated: "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. We said 'if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing.' Cronic, supra, at 659, 104 S.Ct. 2039 (emphasis added). Here, respondent's argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points." (Id. at pp. 696-697.) The court stated: "The aspects of counsel's performance challenged by respondent-the failure to adduce mitigating evidence and the waiver of closing argument-are plainly of the same ilk as other specific attorney errors we have held subject to Strickland's performance and prejudice components." (Id. at p. 697-698.) It made clear that the difference between cases subject to Cronic and those subject to Strickland is not a matter of the degree of ineffectiveness but is a difference of kind. (Id. at p. 697.)
The third situation justifying a presumption of prejudice encompasses "occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." (Cronic, supra, 466 U.S. at p. 659-660.) The Supreme Court in Cronic cited Powell v. Alabama (1932) 287 U.S. 45 [53 S.Ct. 55] as an example of such a case. (Id. at p. 660.) In that capital case, an out-of-state attorney who was not prepared to go to trial and was unfamiliar with Alabama procedure was drafted by the trial judge on the day of trial to represent Black defendants charged with rape of two White girls. (Powell v. Alabama, supra, 287 U.S. at pp. 49-50, 53-56.)
None of these situations are inapplicable to this case. Defendant's trial counsel acted in the role of an advocate. Defendant contends Cronic applies where "trial counsel explicitly, or implicitly, indicated a lack of belief in his client's testimony in closing argument" and cites a number of non-California cases but acknowledges that there are no California cases to support his contention. Those non-California cases either predate the 2002 case of Bell v. Cone, supra, 535 U.S. 685, or apply Strickland rather than Cronic, or are factually inapposite. Unless defense counsel completely fails to test the prosecutor's case, Strickland's deficient performance and prejudice standard applies. (Bell v. Cone, supra, 535 U.S. at pp. 696-697.)
The United States Supreme Court has concluded that even an express, unequivocal concession of guilt by counsel in a capital case does not fall within Cronic. In Florida v. Nixon (2004) 543 U.S. 175 (125 S.Ct. 551), the United States Supreme Court rejected the argument that counsel's failure to obtain a capital defendant's express consent to a strategy of conceding guilt in a capital trial and to instead "concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant's life, " automatically rendered counsel's performance deficient under Cronic. (Id. at pp. 178, 186-187.) The court concluded: "[I]f counsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain." (Id. at p. 192.)
This case does not come within the parameters of Cronic and defendant's convictions are not subject to automatic reversal without any showing of prejudice.
b. Strickland
Defendant contends that defense counsel capitulated in his supplemental closing argument by conceding that he had violated section 288, subdivision (a), and this concession constituted ineffective assistance of counsel under Strickland. Defendant maintains that there was no tactical advantage in making that concession since indeterminate sentencing applied if he were convicted of two counts of committing a lewd or lascivious act. (See 667.61, subds. (b), (c)(4), (c)(8), (e)(4).) Defendant argues that, by conceding guilt, his trial counsel "destroyed any possible defense" that he did not commit a violation of section 288, subdivision (a), a lesser included offense to count one. He further argues that this tactic also left the jury "with no reason to believe [his] testimony" with respect to the alleged incident involving J. and, thereby, "fatally undermined any possible defense to the second count." He maintains that "[t]here was no conceivable strategic reason" for the concession of guilt and his defense counsel "effectively repudiated [his] testimony, this making it all but inevitable [he] would be convicted of both counts." He asserts the concession was clearly prejudicial as to both counts.
"The standard for determining ineffective assistance of counsel is well established. A defendant must demonstrate that (1) his attorney's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Strickland).) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694, 104 S.Ct. 2052.)" (People v. Dickey (2005) 35 Cal.4th 884, 907.)
As indicated in our discussion above, we do not agree that trial counsel conceded guilt in his supplemental argument when he addressed only the issue of force. Trial counsel never implied or suggested that defendant had lied. Moreover, the record suggests that counsel reasonably chose to focus on the issue of force in light of the jury's question and defendant's likely credibility problem and this approach made some tactical sense given the state of the evidence. (Cf. People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187 [counsel's concession of defendant's presence at murder scene, which repudiated defendant's unbelievable alibi testimony, and his explanation of the testimony as a failure of recollection was "an attempt to make the best of a bad situation" and was not ineffective assistance of counsel in light of the evidence].) Unlike People v. Diggs (1986) 177 Cal.App.3d 958, upon which defendant relies, there appears to be a "plausible tactical explanation" for trial counsel's supplemental closing argument.
Under Strickland, "a court must indulge a 'strong presumption' that counsel's conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. 466 U.S., at 689, 104 S.Ct. 2052." (Bell v. Cone, supra, 535 U.S. at p. 702; see People v. Carter (2003) 30 Cal.4th 1166, 1211.) "We assess the reasonableness of counsel's performance deferentially. (Strickland, at p. 689, 104 S.Ct. 2052; People v. Mincey (1992) 2 Cal.4th 408, 449....) We consider counsel's performance from his perspective, analyzing counsel's decisions based on what he knew or should have known at the time. [Citations.]" (In re Thomas (2004) 37 Cal.4th 1249, 1257.)
"The right to effective assistance extends to closing arguments. See Bell v. Cone, 535 U.S. 685, 701-702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Herring v. New York, 422 U.S. 853, 865, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier of fact, ' id., at 862, 95 S.Ct. 2550, but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. See Bell, supra, at 701-702, 122 S.Ct. 1843. Judicial review of a defense attorney's summation is therefore highly deferential...." (Yarborough v. Gentry, supra, 540 U.S. at pp. 5-6.) "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland, 466 U.S., at 690, 104 S.Ct. 2052 (counsel is 'strongly presumed' to make decisions in the exercise of professional judgment)." (Id. at p. 8.)
In any case, there is not a reasonable probability that the outcome would have been more favorable if trial counsel had instead vigorously argued in closing that defendant should be acquitted based on his testimony. "In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. Id., at 696, 104 S.Ct. 2052. This does not require a showing that counsel's actions 'more likely than not altered the outcome, ' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' Id., at 693, 697, 104 S.Ct. 2052. The likelihood of a different result must be substantial, not just conceivable. Id., at 693, 104 S.Ct. 2052." (Harrington v. Richter (2011) ___ U.S. ___, ___ [131 S.Ct. 770, 791-792].)
In all likelihood, defendant's inconsistent testimony seriously damaged his credibility with the jury. The alleged victims, two unrelated children, steadfastly described being touched by defendant. Defendant has not met the Strickland standard for establishing constitutionally inadequate assistance of counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.,