Opinion
C083385
06-01-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRYL OWEN FREEMAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P14CRF0600)
A jury found defendant Darryl Owen Freeman guilty of attempted oral copulation of a person under the age of 14 and 10 years younger than defendant (Pen. Code, §§ 664, 288a, subd. (c)(1)) and committing a lewd act on a person under the age of 14 (id., § 288, subd. (a)). The trial court sentenced defendant to six years in prison, and defendant timely filed this appeal.
On appeal, defendant contends the trial court allowed improper cross-examination of him by the prosecutor and should have granted his motion for a new trial based on ineffective assistance of trial counsel (IAC). We shall affirm.
BACKGROUND
In this case a young victim did not testify clearly at trial and there was no physical corroboration, but there was evidence of her prior statements inculpating defendant and evidence that both defendant and his mother had tried to suppress the victim's story.
A. Prosecution Case
1. Victim's Testimony
Jane Doe--a protective alias--was seven years old at trial. About two years before trial, Jane lived with her father (defendant), her paternal grandmother Jodie, and two teenagers. Jane and defendant lived in a garage with a living room, a partitioned bedroom space for defendant, and an upstairs area for her. When Jane was about five, defendant did "something bad" in that living room. He took off some clothes and showed Jane his private parts, telling her he wanted to "cool off" and get wet. She did not "exactly" remember what defendant did. Jane thought about spitting, but defendant said, "Not like that" so she went to get water, but he said, "Not like that." Jane put the water back, went into the house and told Jodie what happened. Defendant did not touch her or ask her to touch him. Jodie told Jane not to tell anyone. When defendant asked what was going on, Jodie left and Jane told defendant what she told Jodie. Jane told a deputy and her mother what happened.
2. Peace Officer Testimony
In September 2014, Deputy Ricky Brown went to Jane's school to speak with her in response to a sexual abuse report. Jane told him the incident happened about a year before when she was five years old and there were no other incidents. Jane denied there was any uncomfortable touching. When he asked Jane if there was anything she did not want to tell, Jane replied that even if something else happened, she would not tell him because defendant told her not to talk about it. Detective Jonathan Densmore testified defendant was born in 1985.
3. Forensic Interview
On September 30, 2014, Jane spoke to forensic interviewer Cheryl Warchol, and a DVD of the interview was played for the jury. Warchol did not testify, but the DVD was authenticated by Detective Densmore, who testified without cross-examination that a "multidisciplinary interview" was conducted in a special "child-friendly setting" that "helps elicit the truth-telling style of the child and more information." Conducting such an interview eliminates the need for further interviews that can cause trauma to or confusion in a child. According to an informal transcript of the interview used at trial--the accuracy of which is not contested by the parties on appeal--the following occurred:
After the usual preliminaries to establish rapport and ensure Jane knew the difference between a truth and a lie, Warchol asked Jane about what she told the officer, but Jane did not want to talk about it. Defendant had told Jane not to talk about it and she was worried that she would get in trouble if she did. Jane told Warchol that both defendant and her grandmother (Jodie) told her not to tell, but if Warchol told her defendant said it was okay, Jane would talk about it. But then Jane told Warchol defendant had asked her to touch his erect penis (his "private" "was kind of sticking up"), after he took it out of his underwear, and that he took her hand and put it on his penis. This touching, if believed, established the lewd act as charged in count 2.
After a break in the interview Warchol reminded Jane that they were in a safe room where they could talk about anything, and when Jane repeated that defendant told her not to "tell anyone," Warchol told Jane (falsely) that she had spoken with defendant and Jodie and they both said Jane could talk about what happened. Jane then said that when she asked defendant if he needed to go "potty," he told her "only if you get me wet," so Jane "spit on it," but he told her, "no, not like that;" when Jane asked how do to it, he told her to suck on it, but she did not do this. This request for fellatio, if believed, established the attempted oral copulation as charged in count 1.
B. The Defense
1. Jodie's Testimony
Jodie testified her son (defendant) and Jane had lived in a "granny flat" on Jodie's property in September 2014. Jane told Jodie she had seen defendant's private parts, but did not tell her she had put her hand on defendant's erect penis, that defendant told her he needed to get wet, or that he asked her to suck his penis. Jodie denied telling Jane that she should not tell anyone about the incident.
Jodie was somewhat impeached by evidence that this incident led to her losing her foster-care license, meaning she lost the income ($2,800 per month) she had been receiving from having four foster children in her care at the time of the incident. She thought Jane was an honest girl. Although Jodie's testimony was vague on this point, apparently one of the foster children brought Jane to Jodie, and Jane had told the other child what had happened.
2. Defendant's Testimony
Defendant's direct testimony was three pages long. He loved his daughter and had no sexual desires for her. He did not ask her to suck his penis, touch it, or ask her to cool him off, as reflected by her interview video.
On cross-examination, after conceding that Jane told Warchol that defendant had told Jane not to say anything, defendant testified he knew that Warchol lied to Jane when she told Jane defendant and Jodie had said it was okay for Jane to talk to Warchol. The following exchange then occurred:
"Q. [By the prosecutor:] Was it okay with you that [Jane] tell the truth to that forensic interviewer [i.e., Warchol]?
"A. Absolutely.
"Q. So then you probably had no problem with the forensic investigator sitting down with [Jane] and assuring her 'Your daddy says it's okay. You can' --
"[By defense counsel:] Objection. Relevancy. 352.
"THE COURT: Sustained. The witness's feelings about the comment are irrelevant. What is relevant is what happened. Whether he agreed or disagreed with her tactic is not relevant."
After a bench conference outside the presence of the jury, discussed more fully in Part I, post, the trial court changed his mind and overruled the objection. Defendant then answered "The only thing that I would . . . object to [in] that situation would be lying, but as far as sitting down with anybody, there would have been no objection." Defendant also testified that he never told Jane not to talk about the incident.
C. Closing Arguments and Verdicts
The prosecutor argued defendant's lewd intent was shown by his erection, and Jane's statements at her interview showed defendant touched her lewdly by placing her hand on his penis and also had asked her to suck on his penis, establishing guilt on both charged counts. He also invited the jury to consider defendant's body language when he was asked about Warchol lying to Jane about getting permission to reveal what happened, as follows:
"Did you see him grit his teeth? Did you see him answer in moment of anger, 'Yes, she did'?
"Ladies and gentlemen, there is no more powerful circumstantial evidence than that to tell you how the Defendant felt about what that forensic examiner did. And what was the lie? She hadn't gotten the Defendant's permission, and the Defendant didn't want her to have permission to tell the truth.
"What innocent parent -- what innocent father would get so angry by somebody looking at their child saying 'Your daddy wants you to tell me everything. Your daddy says it's okay. You can tell me the truth'?
"But that was his reaction. Anger. Frustration. Ladies and gentlemen, there is only one reasonable explanation for that. That permission that was handed down, candidly, quite deviously, because the Defendant never would have given it, is what brought us here today, and he knows it. He had spent a lot of time and energy making sure she would never tell what that forensic examiner just told her she should tell, and he was mad."
The prosecutor also emphasized Jane's statements that her father had told her not to talk about what had happened, and her statement to Warchol that if her father said it was okay, then she could talk about it. He argued that this showed her innocent love for her father, and desire to do the right thing, as she had been taught.
Defense counsel emphasized the People's burden of proof, the difficulties inherent in circumstantial evidence, and Jane's confusion about some basic facts. Counsel emphasized that defendant "was not upset because the examiner was trying to uncover something he wanted to hide but, rather, he was upset . . . because an adult lied to his daughter. Somebody usurped his parental authority."
In rebuttal, the prosecutor pointed out Jane was a young child, discrepancies in her testimony should be considered in light of that fact, and she was trying to be honest about an incident that must have been very confusing for her.
The jury convicted defendant as charged.
D. New Trial Motion, Sentence, and Appeal
Defendant retained new counsel, who filed a motion for a new trial based on IAC, faulting trial counsel actions and omissions. Relevant details will be discussed in Part II, post. After a hearing, the trial court denied the motion, sentenced defendant to prison for six years, and he timely appealed.
DISCUSSION
I
Cross-Examination
Defendant contends the trial court should not have allowed the prosecutor to cross-examine him about his reaction to Warchol lying to Jane by telling Jane that defendant and Jodie had said Jane could talk about the incident. We disagree.
A. Background
At the bench conference referenced ante, the prosecutor had argued as follows:
"[W]hen I asked him the question about did she lie to [Jane], he gritted his teeth and said 'Yes, she did.' Now, the only reason why he would be concerned about the lie that was told is because he said he wants [Jane] to testify. He wants her to say anything. And the only lie that was told was that [Jane] was told that 'Your daddy says that you can tell me the truth.'
"And the fact he objects to that assertion, the fact that that assertion and that lie offends him is absolutely relevant, because otherwise he'd say 'Yes, of course, I want her to tell the truth' and 'Of course, I'm okay with the forensic investigator assuring her that I want her to tell the truth.'
"So his reaction to it is absolutely relevant. If he is pissed off and offended that a forensic investigator sat down with his child and said 'I talked to your daddy and he said tell the truth to me,' that is absolutely compelling. Why would he be upset with that?"
Defense counsel replied that a father naturally would be angry that an adult lied to his daughter, and the prosecutor was trying to create an inappropriate implied admission that defendant was angry because he did the alleged acts. The prosecutor replied that his view was a reasonable interpretation of the evidence.
The trial court agreed the prosecutor's interpretation was reasonable; defense counsel could explore the point on redirect, and overruled the objection.
As stated, defendant's reply to the question was that his only objection was to the telling of a lie, "but as far as [Jane] sitting down with anybody [and talking], there would have been no objection." There was no redirect by defense counsel. Defense counsel later objected to an instruction on a defendant's failure to explain adverse testimony, which the prosecutor argued pertained to this question. The instruction was not given.
As outlined ante, both interpretations of the evidence were argued to the jury, with the prosecutor arguing defendant's in-court reaction was inculpatory, and defense counsel arguing it was a natural--and benign--paternal reaction.
B. Analysis
Defendant argues his objection should have been sustained, and the trial court's ruling deprived him of due process. We find no error.
The challenged question was at least in part based on defendant's in-court demeanor--gritting his teeth as described by the prosecutor--something that was not denied by defense counsel and that we cannot perceive by reading a cold transcript. The question was relevant because it explored defendant's attitude toward the interviewer's truth-finding function. Defendant explained that he only objected to someone lying to his young daughter, which we agree was one plausible interpretation. But that was not the only plausible interpretation: As stated by the prosecutor, and agreed by the trial court, another plausible interpretation was that defendant was angry that the interviewer successfully used a trick to undermine his efforts to silence Jane.
Contrary to defendant's claim on appeal, the evidence elicited by the question was not unduly prejudicial (cf. Evid. Code, § 352), because it was probative on an issue in dispute (whether or not defendant tried to suppress Jane's story), it was not inflammatory when compared to other evidence in the case, it was not confusing, and it was not time-consuming. (See People v. Harris (1998) 60 Cal.App.4th 727, 737-741 [listing factors to consider].) Further, "The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value. [Citations.]" (People v. Horning (2004) 34 Cal.4th 871, 900; see People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) We find no abuse of discretion here.
Defendant's effort to recast the issue as a violation of due process is unavailing. Application of state-law evidentiary rules ordinarily does not violate a defendant's due process rights. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Mincey (1992) 2 Cal.4th 408, 440.) "Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must 'be of such quality as necessarily prevents a fair trial.' [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see People v. Kelly (2007) 42 Cal.4th 763, 787; cf. People v. Partida (2005) 37 Cal.4th 428, 439 [even if evidence should be excluded under state law, its admission "results in a due process violation only if it makes the trial fundamentally unfair"].) Because the question elicited evidence from which a permissible inculpatory inference might have been drawn--although that inculpatory inference was not compelled to be drawn--no due process violation has been established.
II
IAC
Defendant contends the trial court should have granted his motion for a new trial based on IAC. This argument disregards the appropriate standard of review and also is based largely on second-guessing trial counsel's tactical decisions. We reject it.
A. Background
After the guilty verdicts, defendant discharged his retained trial counsel and retained new counsel who filed a motion for new trial based on IAC. The motion alleged a number of ways in which trial counsel allegedly performed inadequately, as follows: (1) Failing to obtain a mental health evaluation before trial; (2) failing to investigate and present good-character evidence; (3) failing to present evidence that one of Jodie's foster children had made false molestation allegations; and (4) failing to present expert testimony challenging the forensic interview. Neither party presented evidence--either by way of declaration or testimony--by former counsel explaining his pretrial investigation or reasons for his trial decisions.
After a hearing, the trial court denied the motion. The court stated that in his experience it was uncommon to obtain an evaluation before trial, but more importantly, the issue was discussed on the record, a continuance was granted to explore the point, and when the parties came back to court and trial counsel represented that defendant did not want an evaluation, defendant remained silent. In light of this circumstance, the court found no evaluation was obtained because defendant did not want one. Further, the evaluation ultimately obtained was not entirely positive, as it suggested defendant needed some treatment. The court found the proffered character evidence was not admissible, and if it had come in the prosecutor could have asked the witnesses if they had heard about defendant's criminal record "which is not a good one. There are a number of crimes that are not consistent with a person of high moral character." In any event, it was not reasonably probable that those witnesses would have made a difference. The evidence that a foster child in the home had made a false accusation of abuse did not speak to Jane's honesty, would not have been admitted, and would not have made a difference. Not hiring an expert to criticize Warchol's interview techniques would fall within a trial attorney's discretion, but there was no evidence about why trial counsel did not attack the interview in this way. The court had read the expert's report and found it not helpful and partly biased, and found it would have made no difference.
B. Legal Standards
A criminal defendant is entitled to the effective assistance of counsel, whether appointed or retained. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345 [64 L.Ed.2d 333, 344]; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) An IAC claim has two elements. First, the defendant must show counsel acted below the standards of professional competence; second, the defendant must show resulting prejudice. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma).)
Where, as here, the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (See People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
The trial judge is "uniquely equipped" to evaluate the dynamics of the trial. (People v. Stewart (1985) 171 Cal.App.3d 388, 396, disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 696; see People v. Andrade (2000) 79 Cal.App.4th 651, 660-661].) A reviewing court will not second-guess a trial attorney's informed decisions about whether or not to call certain witnesses. (See People v. Hinton (2006) 37 Cal.4th 839, 876.) But a decision is not informed if it is made in ignorance or is based on an unreasonable investigation. (See People v. Bolin (1998) 18 Cal.4th 297, 334; Ledesma, supra, 43 Cal.3d at p. 215.)
To prevail on an IAC claim a defendant must also show trial counsel's alleged failings "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland, supra, 466 U.S. at p. 686.) Defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; see In re Marquez (1992) 1 Cal.4th 584, 603.) The probability must be "substantial, not just conceivable." (Harrington v. Richter (2011) 562 U.S. 86, 112 [178 L.Ed.2d 624, 647] (Harrington).)
C. Analysis
1. Mental Health Evaluation
At an October 2, 2015 pretrial conference, the prosecutor submitted an offer predicated on defendant submitting to a psychological evaluation before trial. This would be the kind of report typically performed after conviction, before certain sex offenders may be granted probation. (See Pen. Code, § 288.1.) The evaluation would be confidential; the defense could review it, and if appropriate, share the report with the prosecution to help resolve the case. If the report was given to the prosecution and the case did not resolve, it could not be used in the case-in-chief but only for impeachment purposes, if at all. The case was continued twice.
At an October 30 hearing, the trial court asked if the parties were still awaiting the evaluation. Trial counsel replied, "I talked to [defendant] about that. His position is he doesn't want to do that," and he "wants to go to trial."
After the verdicts, new counsel obtained a report from psychologist Dr. Eugene Roeder, who had interviewed defendant on August 29, 2016, reviewed pertinent material, and administered standard tests, under the remit of Penal Code section 288.1. The two concluding paragraphs of Dr. Roeder's report read as follows:
"[Defendant] presents on the psychological evaluation with an absence of any diagnosable psychological syndromes, and he does not appear to be suffering from any significant mental disorder. He does not appear to be a pedophile; he does not have a history of sexually inappropriate behavior with minors or adults, has not exhibited hallmark 'grooming' or other pedophilic behaviors, and does not present on the psychodiagnostic testing as suffering from psychopathological issues consistent with pedophilia. He also does not appear to pose a danger to himself or to others, as he has no prior history of violence and his psychological testing results did not indicate dangerousness, a propensity towards violence, or masochistic tendencies.
"Objective psychological testing presents [defendant] as someone who is not experiencing a diagnosable mental disorder, who possesses good intellectual capabilities, in the average range, and who, absent the present situation, is not someone who would be referred for mental health treatment. With regard to possible treatment, while his psychological status would not otherwise limit the efficacy of therapeutic treatment approaches, his denial of any wrongdoing regarding his present offenses represents a significant obstacle toward his successful participation in any mandated rehabilitation program. At the same time, the testing presents [him] as amenable to treatment, particularly cognitive reorientation techniques, but the testing does not present him as otherwise dangerous or a risk to the health and safety of others. The psychological testing presents [him] as someone who would have a good prognosis for benefitting from treatment and developing a positive prognosis going forward."
The new trial motion claimed defendant asked to have such an evaluation before trial but trial counsel refused. The motion argued a psychological profile would have bolstered defendant's credibility at trial. Jodie's declaration claimed defendant had asked for a pre-trial evaluation. The opposition asserted defendant had declined to be evaluated before trial. The reply asserted defendant had not known about the possibility until the prosecutor mentioned it, and according to a second declaration by Jodie, when defendant asked that an evaluation be done, trial counsel told him (and Jodie) that such evaluations " 'were only for prisoners.' "
The trial court found that the parties had talked about getting such an evaluation, but trial counsel had told the court in defendant's presence that defendant did not want an evaluation. The court rejected the claim that defendant wanted one.
On appeal, defendant minimizes the fact that the trial court did not believe Jodie's declarations to the effect that defendant had wanted the report, contrary to what trial counsel stated in open court in defendant's presence. Given her natural bias, and the fact her claim did not explain defendant's silence when his counsel stated on the record that no evaluation was desired, it was rational for the court to reject Jodie's declarations. A trial court is not required to believe even uncontested evidence. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 832.)
Accordingly, we reject the IAC claim regarding the evaluation report. Defendant may have wanted an evaluation at one point, but the record supports the trial court's finding that he changed his mind, and trial counsel cannot be faulted for obeying the defendant's desire not to undergo a psychological evaluation, but go to trial without one.
Nor do we find that it is reasonably probable such a report would have made a difference. The People were not claiming defendant was a pedophile in general, but that on one specific occasion he touched his daughter lewdly and asked her to fellate him.
2. Character Evidence
New counsel claimed trial counsel failed to investigate and present favorable character evidence. This claim also relied on Jodie's declaration that she gave trial counsel several character letters and other supporting information that trial counsel refused to investigate, review, or present. Attached to the motion were eight letters from friends, family, coworkers, and a court appointed special advocate (CASA). All but one were post-trial, dated between May 16 and June 28, 2016; one was dated April 15, 2015. Collectively, the letters--if believed--showed defendant was a good person and good parent.
After the prosecution pointed out that most of the letters were dated after the verdicts, new counsel stated Jodie tried to give such letters to counsel before the trial, but was rebuffed. A declaration from Jodie so attested.
The trial court found the letters were not similar to evidence found to be relevant in molestation cases, such testimony would open the door to impeachment evidence about defendant's record--which appellate counsel concedes includes a receiving stolen property felony, a crime evidencing moral turpitude--and, even if it had been admitted, the evidence would not have changed the result. With one possible exception, we agree the evidence was inadmissible, and it is not reasonably probable the evidence would have made any difference; therefore, we need not consider the extent to which such evidence might have led to impeachment with priors.
A criminal defendant may "introduce evidence, either by opinion or reputation, of his character or a trait of his character that is 'relevant to the charge made against him.' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1305 (McAlpin); see Evid. Code, § 1102, subd. (a).) McAlpin had been charged with committing lewd acts and wanted to introduce the opinions of three witnesses to show he was not a " 'person of lustful or lewd conduct with children.' " (McAlpin, at p. 1308.) Our Supreme Court affirmed the exclusion of one witness's testimony because it was not based on observations of McAlpin's conduct with children, and affirmed the exclusion of the testimony of two women to the extent they based their opinions on their sexual experiences with McAlpin, which also did not address his conduct with children. (Id. at pp. 1308-1309.)
But the women's testimony was admissible to the extent based on observations of McAlpin's conduct with their daughters: "[T]he women proposed to testify that in the course of their relationship with defendant they observed his conduct with their daughters and saw no unusual behavior either by defendant or by their daughters, and that it is their opinion, based on those personal perceptions, that defendant is not a person given to lewd conduct with children. Because the latter conclusion of the witnesses was based on their direct observation of defendant's behavior with their daughters, it was both a proper subject of lay opinion testimony and relevant to the charge of child molestation." (McAlpin, supra, 53 Cal.3d at p. 1309.) "[T]he proffered testimony was intended to prove the relevant character trait not by specific acts of 'nonmolestation,' but by the witnesses' opinion of that trait based on their long-term observation of defendant's course of consistently normal behavior with their children." (Id. at pp. 1309-1310, italics added.)
Even if Jodie is to be believed, and trial counsel had tendered the various letters (or called the authors to testify consistently with their letters), all but one letter clearly would have been inadmissible under McAlpin because the authors did not base their opinion on long-term observations of defendant's behavior with children. Trial counsel cannot be faulted for not gathering and trying to introduce inadmissible evidence.
One letter stands out from the rest. It is from defendant's wife. She stated she had been married to him since 2010 and together they have four children, her three sons and Jane, who was six months old when the couple formed. Based on the seven years they were together, she thought she had a good insight into defendant's character. She thought he was "an amazing parent" to all of their children "every single day." As the Attorney General concedes, this letter might have satisfied the foundation required by McAlpin, to the extent it indicates defendant's wife had observed him around children for a number of years. But as defendant's wife she had a clear bias, and therefore we cannot fault trial counsel for not calling her to testify.
Moreover, evidence defendant was not generally lewdly disposed towards children would not have been very probative on the question whether, for whatever reasons, he lost his moral bearings on this occasion. Thus, defendant has not shown a reasonable probability that this evidence would have made a difference, only speculation. (Cf. Harrington, supra, 562 U.S. at p. 112 [probability of a better result had counsel acted differently must be "substantial, not just conceivable"].)
3. Foster Child's False Accusation
The motion for new trial claimed trial counsel should have investigated a letter from the aunt of one of the foster children in Jodie's home that showed this child had a history of false allegations of sexual assaults. But the evidence did not support that claim. Jodie's declaration stated that one of the foster children in her care had a history of sexualized behavior and false accusations of sexual assault. She did not elaborate. The letter from the foster child's aunt states that a 10-year-old girl (Sofia) was "very controlling manipulative, and dishonest," and to get attention had once lied about a homeless man approaching her in a park. Sofia also "many years ago said someone raped her and he went to prison and died there." But contrary to the thrust of the new trial motion, the aunt's letter did not say that Sofia's prior rape accusation was a false accusation, nor did it say that her report about the homeless man in the park was sexual.
Further, the trial court ruled the evidence would have been inadmissible, as it would be conjecture to find that a child living in the same home as a fabricator would herself have a tendency to fabricate claims of sexual abuse. We agree.
Appellate counsel claims this ruling was "uninformed" because a psychological report (see Part II-C-4) states that unspecified "documents reviewed" showed that Jane had first reported the incident to the foster children. Counsel further reasons that because Sofia (or Sophia) was the eldest foster child, she must have been the one who brought Jane to Jodie, and therefore a link between the deceitful foster child and Jane's testimony was established. This piles speculation upon speculation, and does not forge a chain between an allegedly deceitful foster child and Jane's disclosure, nor show that foster child induced Jane to make a false claim. A later letter (not a declaration) by Jodie, submitted in connection with the sentencing hearing, tried to connect the dots, but it was not part of the new trial motion.
Accordingly, we find appellate counsel's speculations do not establish IAC.
4. Flawed Interview Techniques
Appellate counsel contends trial counsel should have presented expert evidence showing the forensic interview was flawed and suggestive. A supporting report by psychologist William O'Donohue begins with the caveat that he did not evaluate the truth of the information given by Jane in the interview, and instead his purpose was "to inform . . . about the potential for bias on (sic) the child's allegations." He had reviewed relevant background material about the case and the DVD of Warchol's interview. The report identified 18 factors found in the empirical research related to potential bias in forensic interviews of children; Dr. O'Donohue "ruled out" six of those factors, meaning he did not find any flaws in Warchol's technique in those respects, but he could not rule out the remaining 12.
The 12 factors not ruled out by the report were often overlapping or supported by weak examples, and can be briefly summarized as follows:
(1) Warchol did not ask Jane why she was there or the reason for the interview.
(2) Warchol did not assess Jane's level of comfort talking about what happened.
(3) Warchol did determine if threats influenced Jane, but did not determine whether bribes could also have influenced her.
(4) Some questions were open-ended, but some were not.
(5) Warchol did not ask whether Jane wanted to please Warchol.
(6) Warchol asked some leading questions.
(7) Jane may have changed answers after Warchol pressed her.
(8) Some of Jane's answers were reinforced during the interview.
(9) Warchol asked some repetitive questions.
(10) Warchol did not discuss speculation or guessing with Jane.
(11) Jane was asked what she said to her grandmother and the police before giving her narrative, which could have biased her to stick to those versions.
12) Jane discussed the incident with others before the interview.
In opposition, the prosecutor pointed out that Dr. O'Donohue never opined that the results of the interview were wrong but addressed only the potential for bias, and therefore the report did not show IAC, that is, it did not show trial counsel's failure to have a purported expert pick apart the interview was an irrational tactic.
In reply, new counsel argued it was not the defense's position that this report should have been used, but that trial counsel should have engaged an expert to determine if outside influences played a part in Jane's allegations. However, in the argument at the hearing on the motion, new counsel asserted that trial counsel's failure to present this report had no tactical justification.
The trial court did not find the report "particularly helpful," and in some parts the psychologist "seemed to be more of an advocate than a neutral expert." It found the failure to present such a report to the jury was not prejudicial.
On appeal, defendant asserts it was "irrational" for the trial court find the failure to submit the report did not prejudice him. He claims the expert testimony would have placed into question whether Jane's observations were true or whether she distorted something. From this, he concludes the failure to consult any expert in this area fell below professional norms and was prejudicial.
The report found that the potential bias from threats to Jane was addressed when the interviewer asked her if someone did not want her to talk about it. If this report (or similar evidence) had been admitted at trial, this could be particularly damaging for the defense. A constant in Jane's revelations was that defendant told her not to tell anyone about what happened. Admitting such a report could provide the prosecution with the means for reinforcing this key point through defense evidence.
We also agree with the trial court's characterization of the report as not particularly useful. It did not purport to determine whether Jane's rendition of the incident was incorrect, but merely claimed aspects of the interview might have the potential to cause bias. Admitting such evidence may have led to an unhelpful battle of experts. (Cf. Harrington, supra, 562 U.S. at p. 111 ["Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense"].) The circumstances and purpose of the interview were explained by Detective Densmore, and the jury watched the interview itself and could apply its own understanding of it. Trial counsel could rationally have concluded that using an expert witness would not have swayed the jury. Because there is no evidence in the record on appeal about trial counsel's reasoning about tactical choices, defendant's opportunity for relief, if any, lies in habeas corpus. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Further, we need not dissect every point asserted in the report to agree with the trial court's finding that its omission did not prejudice defendant. The purpose and method of the interview was explained, the jury could see it for itself, and evidently found Jane's testimony to be persuasive. Most importantly, as already stated, Dr. O'Donohue never gave an opinion that her testimony was coerced or manipulated, he merely identified some potential areas where Warchol supposedly did not comport with his understanding of best practices. That is not likely to have turned the tide.
In short, the trial court did not err in denying the new trial motion.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Robie, J.