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People v. Hanway

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Apr 20, 2018
H041951 (Cal. Ct. App. Apr. 20, 2018)

Opinion

H041951

04-20-2018

THE PEOPLE, Plaintiff and Respondent, v. STEVEN JAMES HANWAY, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1244104)

A jury convicted defendant Steven James Hanway of committing a lewd or lascivious act on a child under 14. Defendant challenges his conviction, arguing that the prosecutor committed prejudicial misconduct violating his right to due process by invading the attorney-client privilege, disparaging his attorney, and impeaching him with pre-arrest statements and conduct. Finding no prejudicial error, we will affirm the judgment.

I. BACKGROUND

On July 18, 2012, eight-year-old Kelsey told her father (Eric) that defendant had touched her inappropriately when their next door neighbors (Karrie, her husband, and her twin daughters) were on vacation and defendant was watching their house. The police were contacted that evening after Kelsey repeated her disclosure to her father's friend. Kelsey provided a statement to the responding officer, and a week later she was interviewed by a detective. She testified at the preliminary hearing, and defendant was held to answer on one count of committing a lewd or lascivious act on a child under 14. (Pen. Code, § 288, subd. (a).)

We use first names in the interest of protecting the privacy of the minor involved. (Cal. Rules of Court, rule 8.90(b).)

Kelsey identified defendant at the preliminary hearing and said that he touched her. She testified that she asked defendant to play checkers, and they played on the neighbors' front steps. They went inside for water after the game, and defendant touched her "private" with his hand under her swimsuit. Kelsey asked, "What are you doing?" and defendant said, "Seeing what's under your swimsuit." Defendant put his hand on, not in, her "private," and it stayed there for a couple of seconds. She did not remember if he moved his hand or fingers. He told her not to tell anyone, and she ran home. He did not hug or kiss her.

The case was tried to a jury in November 2013. Kelsey, the interviewing police officers, and the father's friend testified for the prosecution. Defendant testified that Kelsey was hiding a small toy under her bathing suit that did not belong to her, and in the course of retrieving the toy, he may have inadvertently touched her vagina, but he had no sexual intent in doing so. The court declared a mistrial after the jury deadlocked nine to three in favor of acquittal.

The case was retried in June 2014.

II. TRIAL

A. THE PROSECUTION'S CASE

1. Testimony of Eric's Friend

Eric asked a friend to find out the details of what happened, to ask Kelsey "the questions [he] couldn't ask her." Kelsey told the friend that she was playing checkers with defendant, and he touched her "private part" in the kitchen when she was getting water. He touched her from behind, mostly with his fingers, and he did not penetrate her vagina. Then he kissed her on the lips. She did not tell her father after it happened because she was afraid he might fight defendant, and she did not want her father to get in trouble. Eric called the police after his friend spoke with Kelsey.

2. Officer Sandal's Testimony

Officer Sandal responded and interviewed Kelsey. In the interview, which was recorded and played for the jury, Kelsey stated that about a month ago she had knocked on the neighbors' door to play checkers with defendant, who was watching the neighbors' dog. They played on the neighbors' front porch. She relayed, "I said I'm thirsty could I get a drink of water please so then he, then he said sure and then I went into the house and then he was like holding me like this and like he went under my swimsuit and touching." She said, "[h]e touched my private" with "[h]is hand," and confirmed that the touching was "skin-to-skin." She continued, "[T]hen he kissed me on the lips and he's all like shh, don't tell anybody." They went back outside and he said bye. She described her "private" as her "peepee." Officer Sandal explained that Kelsey had demonstrated on herself how defendant lifted her from behind, cradling her leg with his arm under her hamstring. He could not recall the hand motion Kelsey had used to replicate defendant's hand movement under her swimsuit.

In explaining what had prompted her disclosure, Kelsey said that defendant had stopped her that day as she was riding her scooter and said "hi, what are you doing." She was nervous and scared, and she did not talk to him. She went home and told her father about the touching.

3. Detective Smith's Testimony

Detective Smith interviewed Kelsey one week later. In that video-recorded interview played to the jury, Kelsey said "he hold me like, like this [gesturing] and he—then he t- touch my private." She said "[h]e picked me up." [¶...¶] "He lifted um my swimsuit and that [sic] he did that[,]" and "he kissed me on the lips after he touched my private." When he picked her up, she asked him to put her on his head. He said she weighed too much, he put her down, and he touched her private, "skin to skin like he went under my bathing suit." Gesturing with her thumb and forefinger, Kelsey explained, "Like you know like there's two parts of it."

The colloquy continued: "[Q:] Two parts of what? [¶] [A:] Mmm your private. [¶]...[¶] [Q:] Okay, So, um do you ever call your private your vagina? Have you ever heard that term? [¶] [A:] Yeah. [Nodding.] [¶] [Q:] You've heard that term? Okay. Um now when you go um like that so he went like that on your vagina? (Gesturing.) [¶] [A:] Yeah. [¶] [Q:] Is that right. Okay. Did he spread—did he spread your private apart?" [¶] [A:] Um he just did that, but he didn't put his fingers inside. [¶] [Q:] Okay, but when he went like that, what happened to your private?" [¶] [A:] It opened. (Gesturing.) [¶] [Q:] Did it open? [¶] [A:] And then he shut it and then took his hand out." He kissed her on the lips and said "Don't tell anybody that we do that stuff." They went outside and he said good-bye. She told her father what happened about three weeks later. She identified defendant in a photo and said he was the neighbor's boss.

As part of his investigation, Detective Smith met with Eric, and spoke with Karrie and defendant. Defendant told Detective Smith he thought he was calling about a burglary that had occurred months earlier at his house. Detective Smith told defendant he was calling about another incident where his name had come up in an investigation, but he said nothing about a child molestation allegation. Defendant responded that it sounded like a voicemail he had received from someone named Eric about a serious issue with his daughter, Kelsey. Defendant told Detective Smith he had not seen Eric in a while, he had known Eric for years and had never gotten a call from him, and the call had raised a red flag. Defendant said he had asked a friend about Eric's call but the friend did not know what it was about. He said Eric's call was not normal, and he was not sure what it was about. Detective Smith responded, " 'I think you know what it's about' " and defendant said " 'No.' " The call ended when defendant expressed he did not wish to make a statement without contacting his attorney. (That detail, ruled inadmissible at an in limine hearing, was not conveyed to the jury.)

Detective Smith obtained a warrant for defendant's arrest on November 2, 2012, following the filing of a criminal complaint.

4. Kelsey's Testimony

After returning home from Raging Waters in June 2012, Kelsey asked defendant, who was watching the next door neighbors' dog, to play checkers. He agreed and they played on the neighbors' porch. She asked for some water, and defendant brought her into the neighbors' kitchen. After giving her water, he lifted her with one arm between her legs, and held her for "[l]ike, a minute." She did not remember asking him to put her on top of his head, or telling Detective Smith that had happened.

He put her down and touched her "private" with his hand. She asked him what he was doing and he said he was trying to see what was under her swimsuit. His hand moved, but she could not remember the type of movement, and she did not remember him doing anything with his fingers. Kelsey was not wearing anything under her swimsuit, and defendant touched her "private" with his bare hand, took his hand out, and then he did it again. He told her not to tell anyone, kissed her on the lips, and repeated his warning. She ran home. She did not hear her father calling her. Before that day she had no reason to dislike defendant.

Kelsey and defendant entered the house through the front door. She did not remember walking past a playroom. She had never taken toys from the twins, or seen toys at their house. She played with Polly Pocket dolls when she was six but had outgrown them when she was eight.

Kelsey testified on cross-examination that she had never been in the neighbors' house.

Kelsey watched her videotaped interview before testifying, and she remembered more of what had happened. She never told anyone defendant had touched her twice, but she had been thinking about it that week and was positive it had happened. Kelsey told her father what had happened a couple of weeks after the touching, when he asked if she wanted to play with the twins. She was not sure whether she had seen defendant that day, but she remembered having seen him at some point before her disclosure when she was outside and he said hello to her. She decided to tell her father because she did not like keeping secrets from him, and she was thinking about it too much. Her father called the police after she told his friend what had happened and spoke with her mother on the phone. She told the truth to Officer Sandal when the event was fresh in her memory, and she told the truth to Detective Smith.

On cross-examination, Kelsey said she thought she had told Detective Smith that defendant had told her he wanted to see what was under her swimsuit; she remembered it, and she was positive it happened. She did not remember how long defendant's hand was under her swimsuit, "but it wasn't very quick." When asked whether at the first trial she had testified that defendant put his index finger and thumb under her swimsuit, she responded, "I'm really positive that he put his whole hand in my swimsuit." After counsel read back her testimony from the first trial, Kelsey clarified, "He put his whole hand in it, but he touched me with his index finger and his thumb." Kelsey insisted that she wore the pink dress shown in People's Exhibit 3 over her swim suit in 2012, not a tee-shirt.

She did not remember testifying at the first trial, " '[t]hey had a playroom with a bunch of toys in it,' " and " 'when the man let me go inside to the kitchen, and I went past a lot of toys.' " She clarified that she had played checkers with defendant twice, after her Raging Waters outing and the next day, but she went into the house only once, when her father had asked defendant to watch her.

When asked whether she remembered testifying at the first trial that she played with Polly Pockets when she was eight, Kelsey said she had misheard that question. She said she had Polly Pocket dolls when she was eight, but she liked playing with them when she was six, not eight.

Kelsey acknowledged testifying at the preliminary hearing that defendant had not kissed her, but later she remembered he had kissed her. When confronted with her testimony from the first trial that her father had knocked on the door to pick her up after going to Fed Ex, she clarified that he had knocked on the front door but she did not hear him yelling. She denied her father called for her from the garage, and persisted that she left by the front door. Ultimately, she testified that she could not remember whether she was inside or outside when her father came, but she did not go through the garage door.

On redirect, Kelsey testified that aside from watching her own video, she had not read any police reports or statements from other people about the case. She remembered testifying at the first trial that defendant touched her private with one hand through an opening and underneath her swimsuit, and then he kissed her. She remembered wearing the pink dress in People's Exhibit 3 when she was touched, but she did not remember the specific day it happened. She had a swim team t-shirt but it was not oversized and did not fall to her knees.

B. DEFENSE CASE

1. Karrie's Testimony

Karrie, her husband, and their twin daughters lived next door to Kelsey. Karrie met defendant through work in 2000, and she considered him part of the extended family. Defendant was not her boss, but she referred to him as her boss to other people. After his arrest, defendant told Karrie he could not come to her house because he was under a restraining order to stay away from Kelsey.

Kelsey used to play with the twins, two years her junior, who had a playroom off the laundry room, and she had been inside Karrie's house several times. The twins had a Polly Pocket doll collection and a small toy dolphin identical to defendant's Exhibit B (a toy gray dolphin). The dolls were about three and one-half inches tall, and the dolphin was about four inches long. The toys were not expensive. Defendant had given the twins Polly Pockets as gifts in the past.

On several occasions Kelsey had tried to take home toys belonging to the twins, and Karrie had intervened and sent Kelsey home. Kelsey had claimed the twins hit her, but Karrie had been present and saw no hitting. Kelsey had not been allowed in Karrie's house since September 2011 when she bought a new car that fit into her garage, so she was able to close the door and avoid interacting with Kelsey. Kelsey took a hula hoop from one of the twins playing in their front yard in the summer of 2012. Kelsey would not give it back and Karrie had to intervene.

Karrie never left Kelsey alone with her girls because there were "consistent issues" from the time Karrie's family moved in when Kelsey was three or four until the time the twins stopped playing with Kelsey when she was seven or eight. When asked on cross-examination, "You didn't describe such a constant problem when you met with the defense investigators," Karrie responded, "I don't believe I understand your question. Who is a defense investigator?" But she acknowledged providing a statement to a woman named Sheila, meeting Sheila a second time to review the statement for accuracy, and reviewing the statement before testifying. She admitted never speaking with the prosecution's investigator, but denied not returning his call or being uncooperative with him. She refused to speak with Detective Smith because he was rude and obnoxious, accused her of being a horrible parent, and threatened to have her arrested if she spoke to anyone about the investigation.

Defendant had asked Karrie to take pictures of her playroom. He did not tell her why, and she complied. The weekend before testifying, defendant's attorney asked Karrie to be a witness. He also asked Karrie to look among the twins' toys for the gray dolphin, but she did not find it and she was certain they had given it away after getting toy dolphins in a better colors.

2. Defendant's Testimony

Kelsey asked defendant to play checkers after returning from Raging Waters. He agreed because she looked bored and lonely, and they played a couple of games on Karrie's front porch. Kelsey asked for a drink of water and defendant took her into the kitchen through the garage. They returned to the porch, finished playing checkers, and Kelsey went home.

The next day Kelsey knocked on Karrie's door and asked defendant to play checkers a second time. Defendant obliged her and they played again on Karrie's porch. Kelsey told defendant she had gone to the pool that day, and she was wearing the same "oversized T-shirt or dress" she had worn the previous day. Kelsey asked for a drink of water and defendant sent her into Karrie's house by herself. Kelsey went through the garage, and after a couple of minutes defendant went in after her. He called her name from the kitchen and she emerged from the laundry room.

The twin's playroom was accessed through the laundry room. Kelsey walked into the kitchen sideways, and she did not respond when defendant asked what she was doing in the playroom. She said she was no longer thirsty and she wanted to go home. Kelsey was moving her arm under a long oversized t-shirt, and two Polly Pocket dolls belonging to the twins fell to her feet.

Kelsey was still moving her arm back and forth, so defendant lifted her t-shirt, noticed a bulge under her swimsuit by her hand, and told her he wanted to see what was under her swimsuit. He reached under her swimsuit with his left forefinger and thumb and, as she was squirming, he retrieved a toy dolphin from her right hip area. The toy was identical to the dolphin identified as Exhibit B, which he had purchased after learning that Karrie could not find the actual toy.

Defendant stated he "could have" and "might have" touched her vagina as he retrieved the toy, but he had no sexual intent in doing so. His intent was to retrieve something that belonged to the twins. Just then he heard Kelsey's father call her name. Kelsey said "[p]lease don't tell my dad[,]" and defendant said he would not tell her father or Karrie if she promised "never [to] do this again" and "always be on [her] best behavior." Kelsey promised and left through the garage door. Defendant saw Kelsey three weeks later. He and Karrie said hello to her, and he approached her and asked if she had been keeping her promise. She said yes, and he walked away.

Defendant testified on cross-examination that he reached into Kelsey's swimsuit using his thumb and index finger, and his reach did not extend beyond his knuckles. He acknowledged testifying at the first trial that he had retrieved the dolphin with " 'one hand,' " and he " 'just took [his] hand and went up her swimsuit.' " but he said that was not an accurate statement. Defendant acknowledged testifying at the first trial that " 'I had my hands in there. She was squirming around in there while I had my hands under her swimsuit.' " Defendant saw only a bulge in Kelsey's swimsuit; the dolphin was not visible; Kelsey's swimsuit was snug; and the toy would have remained in place had he not retrieved it.

The prosecutor elicited that Eric had called defendant two or three times after the incident saying he was Kelsey's father, had a serious concern, and asked defendant to call him back. The following colloquy ensued: "[Q] And you did not call him Eric back, correct? [¶] [A] No, I did not. [¶] [Q] That was your chance to tell him, hey, big misunderstanding. Hey, this is what happened, right? [¶] [A] Yes. [¶] [Q] And you did not take that opportunity? [¶] [A] No, I did not. [¶] [Q] If your account of events is correct, you had just caught Kelsey stealing something, right? [¶] [A] Correct. [¶] [Q] Wouldn't it be fair to think maybe Eric's calling about that? [¶] [A] Yes, I did. I did. [¶] [Q] Is that what you thought he was calling about? [¶] [A] Yes, I did. [¶] [Q] But you told Detective Smith you had no idea why he was calling? [¶] [A] That's correct. [¶] [Q] And you told Karrie [] you had no idea why Eric was calling? [¶] [A] No, I asked her -- I asked Karrie, do you know why Eric is calling me? [¶] [Q] What did Karrie tell you? [¶] [A] She said no, I didn't [sic] know." Defendant also stated he did not return Eric's calls because "I know Eric, his background. I didn't want to deal with him." Later defendant testified that he had told Karrie he had no idea what Eric was calling about.

Defendant did not learn of Kelsey's accusation from Karrie, even though Karrie knew of the accusation. In the four months between July 18 and his arrest in November, he did not return to Karrie's house. Defendant never spoke with Karrie about the allegations, never told Karrie or Karrie's husband about Kelsey's thievery, and never gave them an explanation for the accusation. Defendant had not asked Karrie to produce the dolphin toy or a Polly Pocket until the weekend before the second trial.

Defendant stated he misspoke at the first trial when he said he had learned of Kelsey's accusation from Detective Smith. Defendant explained on redirect examination that he had called his attorney after receiving Detective Smith's call, and his attorney informed him of the allegation after contacting Detective Smith. Defendant had never seen Kelsey wearing the dress in Exhibit 3. Aside from the thieving incident, defendant never had problems with Kelsey, and he knew no reason why she would dislike him.

When the prosecutor asked defendant when he had asked Karrie to take photographs of the inside of her home, defendant's attorney objected, stating "I don't think he asked." The court recalled Karrie's testimony that defendant had asked her to take the photographs, and defendant's attorney injected, "I thought it was the investigator." Defendant answered that he did not remember asking Karrie to take photos, but if he had, it would have been around June 2013, before the preliminary hearing.

Defendant prepared for trial by reading all testimony presented at the first trial, reading his own transcript four times, and purchasing the toy dolphin. He discussed the questions he would be asked, but not the answers he should give. Defendant also had seen Kelsey's video-recorded interview.

C. REBUTTAL TESTIMONY

A neighbor who taught elementary school and had regular contact with Kelsey through swim team activities testified that Kelsey got along with her three children and was never known to steal anything. Kelsey was sweet, quiet, and shy, she did not lie or embellish stories, and she was not the type to cry wolf. The witness had taken Kelsey to Raging Waters in June 2012. Kelsey wore the dress shown in People's Exhibit 3, described by the witness as a cover-up, to swim meets, and she remembered Kelsey wearing that or a similar cover-up to Raging Waters.

Detective Smith testified that he had contacted Karrie by phone after learning the alleged crime had occurred in her home. Detective Smith was calm and professional and he did not threaten Karrie, who was uncooperative.

D. NEW TRIAL MOTION AND SENTENCING

Defendant moved for a new trial based on prosecutorial misconduct, ineffective assistance of counsel, and insufficient evidence. The trial court denied the motion. Imposition of sentence was suspended and defendant was placed on formal probation for three years.

III. DISCUSSION

A. ASSERTED PROSECUTORIAL MISCONDUCT RELATED TO DEFENDANT'S CONVERSATION WITH DETECTIVE SMITH

Defendant argues that the prosecutor committed misconduct throughout closing argument by repeatedly asking the jury to draw adverse inferences from his invocation of the right to counsel and decision not to provide a statement to Detective Smith, and that the misconduct infected the trial with unfairness in violation of due process.

A prosecutor commits misconduct under state law by using " ' "deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Clark (2011) 52 Cal.4th 856, 960.) In closing argument, "[p]rosecuting attorneys are allowed a 'wide range of descriptive comment' and their ' " 'argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 957.)

Misconduct under state law is reviewed for a reasonable probability of a more favorable outcome to the defendant but for the misconduct. (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Watson (1956) 46 Cal.2d 818, 836.) However, prosecutorial misconduct rising to the level of federal constitutional error is reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18. (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1534.) " ' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." ' " (People v. Jackson (2016) 1 Cal.5th 269, 349.)

1. Relevant Background

a. Motions in limine

Both parties filed motions in limine regarding Detective Smith's phone call with defendant. Defendant asserted that the conversation should be excluded as impermissible evidence of guilt and impeachment because he had invoked the Fifth Amendment privilege against self-incrimination by telling Detective Smith he wanted to consult with a lawyer before making any statement. The prosecution sought permission to impeach defendant with the conversation during cross-examination, arguing use of pretrial silence as impeachment is not a Fifth Amendment violation. After reviewing a transcript of the conversation, the trial court ruled it admissible, except for "the defendant exercising his right to consult his attorney" and certain passages of Detective Smith's conversation which prompted defendant to express his intent to consult his attorney.

The prosecution adhered to the ruling both in its direct examination of Detective Smith and cross-examination of defendant. Significantly, the fact that defendant had called his attorney after speaking with Detective Smith was elicited on defendant's redirect examination after he had testified on cross-examination that he had misspoken at the first trial when he said that he had learned of Kelsey's allegations from Detective Smith. Defendant testified on redirect examination that he had called his attorney after speaking with Detective Smith, and that his attorney related the allegations to him after contacting Detective Smith.

b. Closing arguments

The prosecutor argued that Kelsey had described the molestation at least six times, never hesitating to talk with police officers. She argued that a 10-year-old may not remember every detail of an event that happened two years earlier, but that Kelsey had been consistent with the important details. The prosecutor invited the jury to imagine how many inconsistencies there would have been had defendant given five or six statements, and then argued, "But he didn't give 5 or 6 statements. Instead he waited until he had the opportunity to know everything about the case, everything Kelsey said, her description, all of those details. And despite that, ... his version just doesn't make sense." She questioned why defendant never told Karrie or Eric about Kelsey's stealing, and argued that little weight should be given to Karrie's testimony. She pressed that there was no reason for Kelsey to dislike defendant, or to "go on the offensive" and make up a story.

Defendant's attorney argued that Kelsey's accounts of the incident were inconsistent and that defendant's testimony was credible. He stated that he had known Detective Smith for a long time and he, not his client, had called Detective Smith to learn about the investigation. He argued that defendant did not return Eric's calls, despite Eric having been clear that he was calling about serious issues with Kelsey, because defendant thought Eric was calling about Kelsey stealing something and he "didn't want to deal with" Eric, "get involved," or "get Kelsey in trouble."

The prosecutor argued in rebuttal that defendant "had the opportunity to tell everyone, to clear up this misunderstanding," and his failure to return Eric's calls was not mature or responsible and was consistent with his not having come up with an excuse. She pressed that defendant's statement to Detective Smith about a burglary was not reasonable, and she argued that Detective Smith's phone call was defendant's "opportunity to say whatever he wanted to say about Eric. I hate that guy. Oh, he's such a jerk. Oh, my neighbors hate him, too. Oh, Kelsey's scared of him. I don't want to talk about any of this. He had a chance to say all of that to Detective Smith." The prosecutor continued, "Instead what does he tell Detective Smith? I don't know anything about that. I asked my neighbor [Karrie], she doesn't know anything about that. Then he gets off the phone, and he calls Mr. Robinson, his criminal defense attorney. That was his next move. [¶] Reasonable interpretation, why would you do that? Why would you not ask questions of the little girl at the preliminary hearing? Reasonable interpretation would be you haven't come up with an excuse yet. You haven't found a way to take one statement she made in a court hearing and twist it into part of your defense." The prosecutor concluded by arguing: "[T]he most telling thing is that, when he had the opportunity to explain himself, he didn't take it. [¶] He waited until he knew what every single person had said, until this little girl went through interview after interview after interview until an experienced, seasoned attorney is asking her leading questions, probing questions, showing her this document, that document. Which one do you remember? What about this? What about that? Didn't you say this? Didn't you do that last time. [¶] It's up to you to decide ultimately who's telling the truth. Someone's telling a half-truth for sure. It's up to you to decide what's reasonable."

Defendant argues that the italicized argument was misconduct because the prosecutor urged the jury to infer dishonesty from the exercise of his right to counsel and his decision not to meet with Detective Smith. Alternatively, he argues that trial counsel was constitutionally ineffective for failing to object to the indicated passages.

2. Forfeiture

"As a general rule, ' "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." ' [Citation.] The defendants failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 674.) Defendant, who did not object during the prosecutor's arguments, argues that the forfeiture doctrine is inapplicable here because any objection would have been futile given the trial court's denial of his motion for a new trial on the same asserted prosecutorial misconduct grounds. In denying the motion, the trial court commented that it does not "put up with attorney misconduct," it would intervene even in the absence of an objection from counsel, the prosecutor acted professionally throughout the trial, and she committed no misconduct. The trial court's post-trial view that the prosecutor did not commit misconduct does not establish futility. The futility doctrine presupposes a meritorious objection (see People v. Hill (1998) 17 Cal.4th 800, 821; People v. Hamilton (1989) 48 Cal.3d 1142, 1184 & fn. 27), and the post-trial comments here demonstrate the opposite.

Defendant argues that under People v. Lambert (1975) 52 Cal.App.3d 905 this court may excuse an objection " 'when the case is closely balanced and there is grave doubt of defendant's guilt, and the acts of misconduct are such as to contribute materially to the verdict.' " But the forfeiture rule articulated in Lambert, originating in People v. Berryman (1936) 6 Cal.2d 331, was expressly overruled in People v. Green (1980) 27 Cal.3d 1, 28 (Green). (Green was overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.) In repudiating the Berryman rule, the California Supreme Court in Green described the faulty evolution of the rule, and concluded "the proposition that the miscarriage of justice test is an 'exception' to the objection requirement has no historical legitimacy." (Green, at pp. 33-34.) Citing People v. Alvarado (2006) 141 Cal.App.4th 1577, defendant also argues that we should address the asserted error "[b]ecause of its importance in an otherwise close case." However, Alvarado does not support defendant's argument. In that case the court concluded that the defendant had not forfeited his prosecutorial misconduct claim by failing to request an admonition because an admonition would not have cured the harm. (Id. at pp. 1585-1586.)

Defendant has forfeited the alleged prosecutorial misconduct argument related to the phone call, and we decline to address the argument as a matter of discretion.

3. Ineffective Assistance of Counsel

An ineffective assistance claim requires a showing that counsel's performance fell below an objective standard of reasonableness and that defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A reviewing court on direct appeal " 'presume[s] that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Ledesma (2006) 39 Cal.4th 641, 746.) "[C]ompetency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260; People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics"].) To prove prejudice, a defendant must affirmatively show a reasonable probability that the result would have been different but for trial counsel's errors. (Ledesma, at p. 746.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (People v. Williams (1997) 16 Cal.4th 153, 215.)

a. Deficient performance

Defendant argues that trial counsel was deficient for failing to object to the italicized portions of the prosecutor's closing argument. In his view, there could be no tactical reason for not objecting to the prosecutor's "blatant constitutional violations." But we do not view the prosecutor's argument as a transgression of any constitutional rights. First, notwithstanding the trial court's in limine ruling referencing defendant's "right to consult his attorney," defendant did not have a constitutional right to an attorney when he returned Detective Smith's phone call. The right to an attorney under the Fifth Amendment applies during custodial interrogations (Miranda v. Arizona (1965) 384 U.S. 436, 444-445) which did not occur here. And the Sixth Amendment right to counsel does not attach until the initiation of adversary judicial proceedings (United States v. Gouveia (1984) 467 U.S. 180, 188), which occurred in this case several weeks after the phone call.

Second, even assuming defendant claimed the Fifth Amendment privilege when speaking with Detective Smith (see Salinas v. Texas (2013) 570 U.S. 178, 183 ["[A] witness who ' "desires the protection of the privilege ... must claim it." ' "]), we do not view the prosecutor's argument as improper. The United States Supreme Court has held that "the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility," and that "impeachment by use of prearrest silence does not violate the Fourteenth Amendment." (Jenkins v. Anderson (1980) 447 U.S. 231, 238, 240.) The court in Jenkins specified that impeachment is permissible "even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent." (Id. at p. 236, fn. 2.) Under Jenkins, the prosecutor's argument that defendant had the opportunity to tell Detective Smith the things defendant told the jury was proper impeachment. The prosecutor impeached defendant by contrasting what he said at trial with what he said—or did not say—to Detective Smith.

Under article I, section 28 of the California Constitution, we are bound by the United States Supreme Court's decision in Jenkins. (People v. O'Sullivan (1990) 217 Cal.App.3d 237, 240 ["[A]fter Proposition 8, evidence of [a defendant's] pre-Miranda silence may be excluded only if application of the exclusionary rule is compelled by federal law."].) Thus, defendant's reliance on state cases inconsistent with Jenkins (People v. Ramos (2013) 216 Cal.App.4th 195, 207, and cases cited therein) is misplaced. --------

The prosecutor's argument did not result in fundamental unfairness under Doyle v. Ohio (1976) 426 U.S. 610, as defendant argues. The Supreme Court in Doyle held that use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, would be fundamentally unfair because of the nature of the warnings themselves. (Id. at pp. 617-619.) Here, defendant had neither been arrested nor received Miranda warnings before speaking with Detective Smith.

Defendant pressed at oral argument that People v. Tom (2014) 59 Cal.4th 1210 extended the holding in Doyle to pre-custody settings when a defendant has invoked the privilege against self-incrimination. The issue in Tom was whether the prosecution's use of postarrest, pre-Miranda silence in its case-in-chief (not as impeachment) violated the Fifth Amendment privilege against self-incrimination. (Id. at p. 1214.) The Tom court acknowledged a split in the circuit and state courts on the question (id. at pp. 1223-1224) and ultimately did not reach it, concluding that the defendant had not invoked the privilege, without deciding whether it applied in that setting. (Id. at p. 1225.) The Tom court therefore did not extend Doyle, but simply cited it for the rule that "postarrest, post-Miranda silence is not admissible as impeachment." (Id. at p. 1223.) But Tom also recognized that the prosecution may use prearrest silence as impeachment, citing Jenkins. (Id. at p. 1223.)

Defendant's analogy to People v. Guzman (2000) 80 Cal.App.4th 1282 is also unpersuasive. Guzman involved argument by the prosecution that the defendant was unwilling to explain his version of events in court, which was improper under Griffin v. California (1965) 380 U.S. 609. The prosecutor's argument here—that defendant, unlike Kelsey, did not give multiple statements, and that even with the benefit of Kelsey's statements his version of events still did not make sense—is simply not analogous to an improper comment on silence. A prosecutor may "call the jury's attention to the fact that the defendant has had the opportunity to hear all other witnesses testify and to tailor his testimony accordingly." (Portuondo v. Agard (2000) 529 U.S. 61, 63, 75.) Given that defendant chose to testify, the argument was proper to discredit defendant's version of events and at the same time explain the inconsistencies in Kelsey's testimony.

We are not convinced that there was no possible tactical reason for counsel's lack of objection. Defendant himself had testified that he called his attorney (the same attorney who was questioning him) before and after speaking with Detective Smith. The prosecutor's comment that defendant called "his criminal defense attorney" as "his next move," while suggesting disapproval, was nonetheless an accurate summary of the evidence before the jury. Defense counsel could have been of the view that an objection would have brought unnecessary attention to any negative inference the jury already may have drawn from defendant's testimony. In a similar vein, counsel may have been of the view that objecting to the argument that defendant told Detective Smith he did not know the reason for Eric's call when given the "opportunity to say whatever he wanted to say about Eric" would have drawn attention to the discrepancy between defendant's statements to Detective Smith and his trial testimony. Indeed, counsel was aware that the jury had to reconcile defendant's testimony (that he believed Eric had called about Kelsey stealing, and that in retrieving the stolen toy from her swimsuit he in fact may have touched her vagina) with his statements to Detective Smith (that Eric had called him about a serious issue with Kelsey but he did not know what it was about).

b. Prejudice

Even assuming the prosecutor's comments were improper and that a reasonably competent attorney would have objected, on this record there is no reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)

The prosecutor's argument focused heavily on Kelsey's consistent statements, the implausibility of defendant's testimony, and defendant's credibility in failing to tell anyone that Kelsey had been trying to steal a toy. Kelsey's testimony did not have any significant inconsistencies, such as would cast doubts on her credibility in making the allegations against defendant. Indeed, her multiple accounts of what happened were strikingly consistent for a child witness. As much as defendant tried to discredit Kelsey's testimony, the fact remained that he admitted reaching under her swimsuit, and he acknowledged that he "could have" and "might have" touched her vagina.

Defendant's credibility was impeached at the second trial by his shifting testimony and his lack of communication with Karrie. Defendant testified at the first trial that he had his "hands under her swimsuit." But at the second trial he said he retrieved the toy from Kelsey's right hip area using only his left forefinger and thumb, and that his reach did not extend beyond his knuckles. Defendant's only other witness was Karrie, and the jury was aware that she had not testified at the first trial. Even on a cold record Karrie appeared hostile, calling Detective Smith rude, obnoxious, and threatening. And her testimony regarding Kelsey's thievery appeared disingenuous, given that she had not related those concerns earlier to defendant's investigator. Given defendant's close friendship with Karrie, it is implausible that he would have stopped visiting her immediately after Kelsey's disclosure yet never told her his reason for doing so.

Defendant urges that the prosecutor's argument "tipped the scales" because the results of the first trial demonstrated a close case. Even if the second trial were substantially similar to the first trial, we would not infer prejudice from the hung jury. "Juries fail to agree for a variety of reasons" and "the disagreement may be driven as much by the personality of a jury, a uniquely held world view, or even some friction during deliberations, as by any weakness in the underlying case." (In re Richards (2016) 63 Cal.4th 291, 316 [conc. opn. of Corrigan, J.].) But as we have discussed, the second trial was not the same as the first trial, and on this record defendant has failed to show a reasonable probability of a different result in the absence of the prosecutor's comments, as defendant's actions themselves undercut his credibility.

B. ASSERTED PROSECUTORIAL MISCONDUCT IMPLICATING DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS AND THE ATTORNEY-CLIENT PRIVILEGE

Defendant argues that the prosecutor committed misconduct by attacking defense counsel in violation of his Sixth Amendment right to counsel and Fourteenth Amendment right to a fair trial, and by asking questions that invaded the attorney-client privilege. Defendant has not preserved his arguments for review because he failed to object to the asserted misconduct in the trial court. (People v. Centeno, supra, 60 Cal.4th at p. 674.) Although defendant's attorney objected when the prosecutor was questioning defendant about preparing for trial, those objections were insufficient to preserve the arguments he raises here because he did not assert prosecutorial misconduct or violation of the attorney-client privilege as a basis for the objections. (Ibid.) Nor does counsel's failure to preserve the error in the trial court constitute constitutionally deficient representation because, as we will explain, the prosecutor's cross-examination and argument did not constitute misconduct.

1. Attack on Counsel

"A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill, supra, 17 Cal.4th at p. 832.) He or she is not "permitted to make false or unsubstantiated accusations that counsel is fabricating a defense." (People v. Clark, supra, 52 Cal.4th 856, 961.)

After the prosecutor asked defendant how many times he had read his first trial transcript to prepare for his testimony, the following colloquy ensued: "[Q] Have you ever rehearsed the questions that would be asked? [¶] [A] I'm not sure what you mean by that. [¶] [Q] Have you practiced the Q and A, what questions you were going to be asked and what responses you should give? [¶] [A] No. [¶] [Q] Never? [¶] [A] We just discussed what was going to be asked. I didn't have a Q and A practice. [¶] [Q] So you've discussed what would be asked? [¶] [A] Yes. [¶] [Q] What the ideal answer would be?" The court sustained defendant's objection to the term "ideal answer." Defendant's objection to the prosecutor's rephrasing of the question—"you have also discussed what would be the answer you should give, correct?"—was overruled, and he answered: "No. I discussed what the truth is about. What more would you want?"

We do not read this colloquy as disparaging counsel or suggesting that he was fabricating a defense. The prosecution's theory of the case was that defendant had fabricated his defense, having the benefit of discovery and Kelsey's preliminary hearing testimony. By probing into defendant's trial preparation and suggesting that he had carefully prepared his answers, the prosecutor was exploring defendant's capability to prepare a fabricated defense. We will not infer that the jury viewed the colloquy as suggesting counsel's complicity in the fabrication. Indeed, at no point in the exchange did the prosecutor reference defendant's attorney.

Defendant argues that the prosecutor committed misconduct in closing argument by suggesting that counsel was coaching defendant. " 'Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]' " (People v. Wilson (2005) 36 Cal.4th 309, 337.) There was nothing improper in the prosecutor arguing that defendant "was consistently looking at his attorney while giving testimony as though looking for the right answer. That's an interpretation you can make. [Defendant], whose counsel had to shout out suggestions on what answers he should give during cross-examination when the questions obviously weren't following the script." The argument—suggesting defendant was unable to answer questions on cross-examination in a forthright manner—was directed at defendant's demeanor and credibility, and it was supported by the record. An inference could be drawn from counsel injecting a request for a more specific response from defendant during cross-examination that defendant had prepared his testimony and his answers were not as precise as they could be.

Defendant cites additional passages from the prosecution's argument as attacking counsel's honesty and integrity. The prosecutor argued that even with trial preparation, defendant's version of events did not make sense: "[D]espite him reluctantly admitting that he had practiced his testimony -- and I don't know that those were his exact words because [he] was a little reluctant getting information out on that topic -- despite all of that, his version just doesn't make sense." The prosecutor referred to counsel as a "seasoned attorney" who cross-examined Kelsey, but that was to explain why Kelsey struggled on cross-examination, not to criticize counsel.

The prosecutor also argued: "Why would you not ask questions of the little girl at the preliminary hearing? Reasonable interpretation would be you haven't come up with an excuse yet. You haven't found a way to take one statement she made in a court hearing and twist it into part of your defense." The prosecutor's argument on this point was forceful. But it was not improper, especially given the circumstances of a retrial. The argument, again, was one of several focused on why defendant's version of events did not make sense. It followed points such as defendant having Karrie take pictures of the inside of her home before the preliminary hearing (held a year before the second trial) but not asking her at that time for the toys Kelsey hid in her swimsuit, not having seen Kelsey in the playroom when it was an open area by the laundry room, not returning Eric's calls, and not being truthful with Detective Smith.

Given the prosecutor's predominant argument impugning defendant's credibility, in our view the jury would have attributed the reference to "twist[ing]" Kelsey's statement "into part of your defense" to defendant, and we will not infer that the jury construed the remarks against defendant's attorney. To the extent counsel's credibility was put in play, it was not by the prosecutor but by counsel himself essentially testifying during closing argument that he had been defendant's attorney "during the Detective Smith era" through the preliminary hearing and the first trial, defendant told him what had happened before the preliminary hearing, and defendant was telling the truth.

Defendant analogizes the prosecutor's argument to that in People v. Herring (1993) 20 Cal.App.4th 1066, where the prosecutor argued: "My people are victims. [Defense counsel's] people are rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth." (Id. at p. 1073.) The analogy is misplaced. The Herring court found prejudicial misconduct because the argument implied that counsel's clients were necessarily guilty of heinous crimes, impliedly denigrated the presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt, and implied that defense counsel suborned perjury. (Id. at p. 1075.) The prosecutor's argument here did not manifest the type of prejudice found in Herring. The argument did not undermine defendant's right to counsel or deprive him of a fair trial.

2. Attorney-Client Privilege

The prosecutor's inquiry into whether defendant had "discussed what would be the answer you should give" did not elicit privileged attorney-client communication. A client "has a privilege to refuse to disclose ... a confidential communication between client and lawyer[.]" (Evid. Code, § 954.) The Legislature has defined " 'confidential communication between client and lawyer' "as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence ..., and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." (Evid. Code, §952.) The prosecutor's question called for a "yes" or "no" answer and did not seek the content of any discussion. (See People v. Durrant (1897) 116 Cal. 179, 219 ["It was the fact and not the contents of the statement which was the subject of inquiry, and no effort was made to extort from the witness any information of the latter"]; McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1236 ["evidentiary privileges should be narrowly construed because they prevent the admission of relevant and otherwise admissible evidence"].)

Even if the question violated the attorney-client privilege, we find no prosecutorial error. Cross-examination of a defendant about interactions with his or her attorney is not per se improper, nor are questions about how a defendant prepared for trial. (See People v. Wilson, supra, 36 Cal.4th 309, 335.) When asked whether he had rehearsed his testimony, defendant denied having a practice session but acknowledged discussing what would be asked, and the prosecutor asked a reasonable follow up question about his answers. Nor did prejudice result from the prosecutor's question under any standard. Defendant denied rehearsing his answers, and there was no suggestion from the question itself that the prosecutor had a source of information unknown to the jury that would diminish defendant's response. (Cf. People v. Pitts (1990) 223 Cal.App.3d 606, 734.)

C. NEW TRIAL MOTION

Our conclusion that no prosecutorial error occurred forecloses any argument that the trial court's denial of the motion for a new trial was an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1210 [" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' "].)

IV. DISPOSITION

The judgment is affirmed.

/s/_________

Grover, J.

WE CONCUR:

/s/_________ Elia, Acting P. J. /s/_________ Bamattre-Manoukian, J.


Summaries of

People v. Hanway

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Apr 20, 2018
H041951 (Cal. Ct. App. Apr. 20, 2018)
Case details for

People v. Hanway

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEVEN JAMES HANWAY, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Apr 20, 2018

Citations

H041951 (Cal. Ct. App. Apr. 20, 2018)