Opinion
C080317
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL CLAYTON HAMMOND, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF15165)
A jury found defendant Paul Clayton Hammond guilty of committing a lewd act with force on a child under 14 and committing a lewd act on a child under 14. The trial court sentenced defendant to 46 years in prison.
Defendant now contends:
1. The prosecutor committed misconduct during closing argument, but if this claim is forfeited due to defense counsel's failure to object, defense counsel provided ineffective assistance.
2. Trial counsel was ineffective in introducing a prejudicial prior bad act.
We conclude the claims of prosecutorial misconduct are forfeited, and defendant has not established that trial counsel was ineffective. We will affirm the judgment.
BACKGROUND
The victim was born in August 2003. The victim's mother is defendant's cousin. Every couple of months, the victim and her sisters would spend time at their great-grandparents' home to allow their parents to have a date night. Defendant lived at the great-grandparents' home sometimes.
One particular night, the victim's mother and her husband wanted to see a movie, so the children, including the victim, went to their great-grandparents' home. Defendant's mother was also at the house that night. During that visit, defendant touched the victim inappropriately. The first instance was in the afternoon, on the couch. The victim, her sister, her great-grandmother, and defendant were in the living room. Defendant was sitting next to the victim when he pulled her onto his lap and started rubbing her breast. She tried to get off his lap, but he was holding one of his arms around her. She told him repeatedly to let her go and he would not. She then said she had to go to the bathroom and he let her go.
The victim slept with her sister that night, but woke up in the middle of the night when she felt somebody heavy come into the bed. She turned around and it was defendant. He started rubbing her breast with his thumb in a circular motion. The victim again said she had to go to the bathroom and left the bedroom. When she returned, defendant had moved back on the couch. The victim did not say anything about the incidents until she was faced with returning to her great-grandparents' house about a month later.
Defendant's mother said she did not see defendant pull the victim onto his lap and did not hear anyone use the restroom that night, adding that she stayed awake all night and would have seen the victim pass in front of her room to use the bathroom.
Defendant testified he had four prior convictions. He denied touching the victim on her chest, rubbing her chest, or forcing her to stay on his lap. He denied going in the room where the victim was sleeping or getting into bed with her. He said he got up around 10:30 p.m., checked on everyone, locked the doors, and went back to bed.
The victim's mother placed a pretext phone call to defendant. Defendant denied touching the victim inappropriately. At the mother's repeated urging that she needed an apology, defendant repeatedly apologized. When the mother said she needed to know it would never happen again, defendant said, "It won't - I swear. I - I don't know why." He said he was "sorry for anything I've - if she believes something like that - I - I'm truly sorry. I would never want her to ever feel that way." He denied he got in bed with the victim, stating he had just opened the bedroom door. When the mother said she just needed defendant "to be honest and just admit what happened and say you're sorry and we can move on from here," defendant answered, "I'm sorry for everything. I'm - I'm sorry." When she asked if he had done anything more than touch the victim on the chest, he said "I - I don't know -- it might've been." He continued to insist he did not know what happened and did not know what he did, but he was sorry for whatever he needed to be sorry for.
Defendant testified that he first learned about the victim's allegations in the pretext phone call, and he was stunned by the accusations. He denied touching the victim inappropriately during the pretext phone call, but apologized because he does not like confrontations.
The jury convicted defendant of committing a lewd act with force on a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1) - count 1) and committing a lewd act on a child under the age of 14 years (§ 288, subd. (a) - count 2). In separate proceedings, defendant admitted allegations of three prior strike convictions and three prior serious felony convictions (a prior arson conviction and two prior first degree burglary convictions) (§§ 667, subds. (a), (d), & (e), 1170.12, subds. (b) & (c)).
Undesignated statutory references are to the Penal Code. --------
The trial court dismissed two of the three prior strike allegations and sentenced defendant to state prison as follows: 20 years on count 1 (the upper term of 10 years doubled pursuant to the strike), a consecutive 16 years on count 2 (the upper term of eight years doubled pursuant to the strike), and two consecutive terms of five years each for two of the prior serious felony conviction allegations, for an aggregate sentence of 46 years.
DISCUSSION
I
Defendant contends the prosecutor committed misconduct during closing argument, but if this claim is forfeited due to defense counsel's failure to object, defense counsel provided ineffective assistance.
A
Defendant did not object to the closing argument remarks by the prosecutor which he now asserts constitute misconduct. He did not ask the trial court to admonish the jury with regard to the challenged remarks. He has thereby forfeited his prosecutorial misconduct claims. (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah); People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Samayoa (1997) 15 Cal.4th 795, 841.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.) By failing to object at trial, defendant did not give the trial court an opportunity to address his objections and remedy any resulting prejudice.
Defendant argues that the lack of a contemporaneous objection does not preclude appellate review of the alleged prosecutorial misconduct here because objections and admonitions could not cure the misconduct. Failure to object and to request an admonition does not result in forfeiture where an objection and/or request for an admonition would have been futile or the prosecutor's misconduct is of such character that an admonition could not cure the harm caused by the misconduct. (Panah, supra, 35 Cal.4th at p. 462; People v. Kirkes (1952) 39 Cal.2d 719, 726.) "A defendant claiming that one of these exceptions [to the requirement of objecting at trial] applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (Panah, at p. 462.) Here, however, other than arguing that one cannot unring a bell, defendant does not explain how a timely objection and/or admonition to the jury would have been futile in this case. We need not consider claims made in a perfunctory fashion and without supporting argument. (People v. Redd (2010) 48 Cal.4th 691, 744; People v. Earp (1999) 20 Cal.4th 826, 881.)
B
Defendant adds that his trial counsel was ineffective in failing to object to the prosecutor's misconduct. To establish ineffective assistance of counsel, defendant must prove (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) Defendant must affirmatively prove prejudice. (People v. Mickel (2016) 2 Cal.5th 181, 198.) "[T]he record must demonstrate '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.' " (Maury, at p. 389.)
"A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored." (People v. Lopez (2008) 42 Cal.4th 960, 966.) Moreover, " 'deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffectiveness assistance.' " (People v. Collins (2010) 49 Cal.4th 175, 233; see People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Frierson (1991) 53 Cal.3d 730, 749.)
Defendant's appellant's opening brief makes conclusory statements that there was no tactical purpose for his trial counsel's failure to object, but such conclusory statements are insufficient. Defendant's ineffective assistance claim fails because he has not established that his counsel was deficient or that he suffered prejudice.
II
Defendant also claims trial counsel was ineffective in introducing a prejudicial prior bad act.
A
The People made a motion in limine to allow defendant's prior bad acts to be admitted against him as impeachment evidence if he testified. The specific acts included in the motion were two June 2005 burglary convictions, a June 2005 vehicle theft conviction, and a June 2005 arson conviction. As a result of that arson conviction, defendant was a registered arsonist. The motion did not include a fire set when defendant was a child that resulted in the death of defendant's brother. The trial court granted the People's motion to use the adult prior convictions as impeachment evidence if defendant testified. The trial court also granted defense counsel's motion to prevent any mention of defendant having been in prison or on parole.
During a break in testimony from the victim's mother, and outside the presence of the jury, defense counsel said he intended to ask the mother about the fire when defendant was a child, because he believed it was an important part of the defense and it explained why the victim's mother was afraid of defendant. The trial court said it did not want the victim's mother mentioning defendant's prior adult convictions or his incarceration, but the ruling did not encompass the childhood fire.
On cross-examination, defense counsel asked the mother if she was afraid of defendant and she said she was. He asked if this was because of the fire defendant set when he was young and the mother said it was. She said she told the deputy in this case that defendant had intended to kill his brother by setting the fire. She acknowledged that she had been cautious about being around defendant since the fire, and did not want her children to be alone with him.
When defendant's mother testified, defense counsel asked her why she did not sleep when children were in the house. She answered it was because of the fire in which she lost a child.
B
As stated above, "a defendant claiming ineffective assistance of counsel . . . must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome." (People v. Ochoa (1998) 19 Cal.4th 353, 445.) "It is not deficient performance for a criminal defendant's counsel to make a reasonable tactical choice. [Citations.] Reasonableness must be assessed through the likely perspective of counsel at the time. '[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." ' [Citation.]" (Ochoa, at pp. 445-446, fn. omitted.) And, even after meeting that burden, defendant must still establish prejudice.
Defendant claims the trial court warned defense counsel not to elicit evidence of the childhood fire, but the record does not support that assertion. The trial court expressly excepted the childhood fire from its evidentiary exclusions.
The record does establish, however, that defense counsel had tactical reasons to elicit testimony regarding the childhood fire. Among other things, counsel sought to use the victim's mother's beliefs about the fire to explain why she was afraid of defendant and why she did not want her children around him. He also sought to bolster defendant's mother's credibility by explaining why she did not sleep at night and thus was certain the victim had not used the bathroom as she claimed.
We cannot say these were unreasonable tactical choices, and defendant also makes an inadequate argument for prejudice. Defendant's claim of ineffective assistance lacks merit.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
BUTZ, J.