Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050304030
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Defendant Ronnie Dean Jones appeals following his conviction for eleven sex offenses involving three minors. Among other things, defendant contends that the trial court erred in denying his Wheeler/Batson claim and motion for new trial based on ineffective assistance of counsel. We direct the trial court to modify the abstract of judgment in certain respects and otherwise affirm.
Procedural Background
By information dated March 19, 2003, the District Attorney of Contra Costa County charged appellant with 13 sex offenses against four victims.
Counts one through five named Jane Doe 1 as the victim; she was identified at trial as T. The charges included penetration of a person under 14 (Pen. Code, § 289, subd. (j); count one), committed between January 1997 and January 1998; lewd acts on a child under 14 (§ 288, subd. (a); counts two through four), committed between 1997 and 1998; and molesting a child (§ 647.6, subd. (a); count five), committed in December 2001.
All further statutory references are to the Penal Code unless otherwise indicated.
Counts six and seven named Jane Doe 2 as the victim; she was identified at trial as L. Both counts were for lewd acts on a child 14 or 15 years old (§ 288, subd. (c)(1)), committed in October and December 2001.
Counts eight and nine named Jane Doe 3 as the victim; she was identified at trial as Lisa. Count eight charged penetration of a person under 14 (§ 289, subd. (j)) and count nine charged a lewd act on a child under 14 (§ 288, subd. (a)). Both offenses were allegedly committed on October 27, 2001.
Counts ten through 13 named Jane Doe 4 as the victim; she was identified at trial as Michelle. The charges included sexual battery by restraint (§ 243.4, subd. (a); count ten), committed between December 2001 and June 2002; sexual battery (§ 243.4, subd. (a); count 11), committed in November 2001; molesting a child (§ 647.6, subd. (a); count 12), committed in November 1999; and a lewd act on a child aged 14 or 15 (§ 288, subd. (c)(1); count 13), committed in 1998 or 1999.
The information further alleged that defendant was ineligible for probation because of four prior felony convictions (§ 1203, subd. (e)(4)) and because he had substantial sexual conduct with victims under 14 years of age (§ 1203.066, subd. (a)(8)). The information also alleged that defendant committed an offense specified in section 667.61, subdivision (c) against more than one victim. (§ 667.61, subds. (b) & (e).)
A jury convicted defendant as charged on counts one, three through five, and eight through thirteen. On count two it convicted him of the lesser offense of simple battery. The jury was unable to reach verdicts as to counts six and seven, and the court declared a mistrial as to those charges.
The defendant was sentenced to a total term of 30 years to life, including 15 years to life on count three and an identical consecutive sentence on count nine. Concurrent sentences were imposed on counts one, four, ten, and 13, and he received time served as to counts two, five, 11, and 12. The court imposed but stayed (under section 654) a concurrent six-year sentence on count eight.
Factual Background
Defendant is married to D. She operates a hair salon in Oakland. Many of the people involved in this case had a connection to the salon and/or D.’s extended family. Several of the offenses took place in D.’s parents’ apartment in Pinole. One of D.’s sisters, Danielle, worked at the salon with D. Danielle is the mother of T. (the victim in counts one through five). T. is six months younger than D. and Danielle’s younger sister, Da. Da. still lived with her parents in Pinole at the time of trial.
The other victims are L. (counts six and seven), Lisa (counts eight and nine), and Michelle (counts ten through thirteen). L. is the daughter of D.’s cousin Valerie. Lisa is the daughter of a friend of defendant, Tim; her mother is Sandy. Michelle got her hair cut in D.’s salon and sometimes worked there washing hair.
Summary of Allegations
The prosecution identified which alleged incidents corresponded to which counts in a two-page document entitled “SUMMARY OF CHARGED COUNTS,” identified and admitted at trial as Court’s Exhibit 3. For each count, the document lists the victim, the charged crime, the location it occurred, and a brief description of the alleged act. Our identification of the conduct relating to each count corresponds to the summary.
T. was born in January 1988. All of the offenses against her occurred in D.’s parents’ apartment in Pinole.
Count one (penetration). T. testified that when she was nine years old, defendant called her into D.’s bedroom. D. was living in the apartment at the time. Defendant was alone in the room standing in front of a closet when he put his hand down her pants and his finger inside her vagina. T. told Da., with whom she had been watching television, what happened.
Count two (lewd act). When T. was nine, defendant again called her into D.’s room. D. was sleeping on the bed and defendant was also lying on the bed. T. sat next to defendant; he was between her and D. Defendant laid T. down in front of him, with her butt facing the area of his penis. She felt his penis get hard and brush against her.
Count three (lewd act). When T. was around ten or eleven years old, she, defendant, D., and defendant’s daughter were watching television in a bedroom in the Pinole apartment. Defendant leaned over T. and rubbed her breasts. The others could not see because he was blocking their view.
Count four (lewd act). When T. was around ten or eleven years old, defendant called her into another room in the Pinole apartment, where he was sitting on the bed. He grabbed her hand, put it on his penis, and moved it around until his penis became hard.
Count five (molesting a child). On Christmas Day in the Pinole apartment when T. was 13, she and Da. asked defendant for money. He said he didn’t have any and the girls walked out of the room, but then he called to T. and she turned around. He had placed money in the waistline area of his shorts; caressing his genitals, he said “come and get it.”
T. also testified to an uncharged incident when defendant rubbed the upper part of her leg, close to her vagina, while in his car.
T.’s testimony regarding these incidents was largely supported by a letter she wrote at her mother Danielle’s suggestion, describing sexual abuse by defendant. A second letter was written by Da. on the same occasion (but in a different room), also describing sexual abuse by defendant. Danielle delivered the letters to the police. In testifying for the defense, Da. denied ever writing the letter bearing her name.
Counts six and seven (lewd acts on L.)
L. was born in May 1987. When she was 14, she attended a jambalaya party at Danielle’s home in Antioch. She was standing in front of the apartment building and defendant told her to come to his car because he had some stickers for her. He put her in a headlock and squeezed her breasts (count six). Defendant again felt her breasts as they were standing in a hallway inside Danielle’s home. Also, when she was 14, defendant squeezed her breasts while in a bedroom at the apartment in Pinole (count seven).
Counts eight and nine (penetration and lewd act involving Lisa)
Lisa was born in March 1988. She lived with her mother Sandy in Oakland. Lisa’s father, Tim, resided in Pinole with his wife Stacey. Tim was a good friend of defendant before the allegations of abuse arose.
The events underlying counts eight and nine occurred on the same occasion in 2001 when Lisa was 13 years old. She went to a football game with her father and then returned to his home in Pinole. Defendant later came over, and Tim asked defendant to drive Lisa home. The two left at about ten or 11 p.m. Lisa sat in the front passenger seat, which was separated from the driver’s seat by a middle console. When they were near Lake Merritt, defendant placed his right hand under Lisa’s underwear and touched inside her vagina.
The prosecutor argued to the jury that defendant committed two lewd acts by putting his hand in Lisa’s pants (count nine) and then penetrating her vagina with his finger (count eight). As we have mentioned, the trial court stayed the sentence on count eight.
Lisa’s testimony was supported by a friend who testified that, during the football season at the end of 2001 or beginning of 2002, Lisa told her that a friend of her father touched her sexually while giving her a ride home.
Counts ten through thirteen (offenses against Michelle)
We summarize the evidence of the charged counts involving Michelle in the chronological order of events suggested by Michelle’s testimony at trial.
Michelle was born in December 1984. She used to get her hair done at D.’s hair salon and she sometimes worked there washing hair.
Defendant first acted inappropriately with Michelle when she was 14 or 15 years old. Defendant was fixing a door on his car outside the hair salon and he asked Michelle to come outside and help him by holding the door in place. He told her that he liked her, that he wanted to “mess with” her, and that she should “let [him] suck on those big ass titties.”
Count twelve (molesting a child). Later that year, defendant rubbed Michelle’s upper thigh while sitting next to her in church. The charged incident occurred afterwards, while defendant and Michelle waited in his parked car as D. shopped at a beauty supply store. Defendant was in the driver’s seat and Michelle was in the back. Michelle heard defendant unzip his pants and raise his body, and he told Michelle to “look at what he was working with.” She did not look.
Count thirteen (lewd act). When Michelle was about 15 years old, she went to a retirement party for her grandmother. While Michelle was in the bathroom looking in the mirror, defendant came up from behind and rubbed her breasts with both hands.
Count ten (sexual battery). At some point after the church incident and after her grandmother’s party, defendant touched Michelle inappropriately in a parking garage. D. sent defendant to pick up Michelle at school so that she could come to the salon to wash hair. Instead of taking her directly to the salon, he stopped by his home, driving into the parking garage. At the time, defendant was in the driver’s seat and Michelle was in the passenger seat; his and D.’s baby daughter was in the back seat. Defendant reached over and tried to pull Michelle’s right breast out of her bra.
Count eleven (sexual battery). When Michelle was 17 years old, she attended her sister’s baby shower. Defendant, D., and their baby were present. In preparing to leave, defendant put on the baby’s jacket while Michelle held the baby in her arms. In doing so, defendant rubbed Michelle’s breast in the area of the nipple.
Michelle informed her cousin Amber about some of defendant’s lewd touchings and comments.
Uncharged Conduct
N. was born in July 1987. Na. is related to D.’s family; her grandmother is D.’s aunt. When she was eleven or thirteen defendant touched her sexually a few times. He always did it the same way; he would put her in a headlock, stick his hand under her shirt, and feel her nipples. Defendant did this while at the hair salon, at a relative’s house in Antioch, and at D.’s parents’ home in Pinole.
The Defense Case
Lee Coleman. Lee Coleman, a defense psychiatric expert, criticized the police investigation. In his view, the investigators merely asked the alleged victims what happened, assumed that the allegations were true, neglected to ask to whom the children had spoken, and failed to look into the context in which the allegations were made. He opined that the investigation may have failed to discover pre-existing influences and may have inadvertently promoted a suggestive atmosphere. When the girls talked in a group, each one recounting her version of the events, the environment was highly suggestive.
This testimony related to evidence that on one or more occasions several of the victims discussed what to do about defendant’s conduct. (See infra, at p 23.)
Ronnie Jr. Ronnie, Jr., defendant’s son, was 18 years old at the time of trial. Based on his observations at family gatherings, T., Lisa, and Michelle had friendly relationships with defendant.
Starr Jones. Starr Jones, defendant’s daughter, was 24 years old at the time of trial. Based on her observations of family gatherings, T. and Lisa were comfortable around defendant. She disputed T.’s testimony that they once watched television together in a particular room in the Pinole apartment and that she saw defendant wearing no shirt. Jones further testified that Danielle acted negatively around defendant, rolling her eyes and making noises, and that Danielle was very jealous of D. and said negative things about her when D. was not present.
Da. Da. was 17 years old at the time of trial. She testified that defendant never touched her inappropriately and that T. never told her that defendant had touched T. inappropriately.
Da. described two incidents in which she overheard allegations about defendant. In February or March 2002, her mother hosted a family barbecue following the death of her brother Darrell. A group of girls, including T. and L., were gathered together when someone mentioned that defendant had touched her breast and another said, “Join the club.”
In the middle of March 2002, Da.’s brother Derrick picked her and T. up to go shopping. He asked T., “What do you mean, [defendant] touched on you?” T. responded that defendant fingered her. She also said that defendant fingered Da., and she wanted Da. to say so. Da. refused and T. said, “Forget you. We don’t need you. I don’t need you anyway. My mom said we don’t need you, we got somebody else.” T. also said, “It’s not about you. It’s all about me.” Subsequently, Da. testified that she didn’t know anything about T.’s allegations before “[e]verything started coming out [in] April 2002.”
Da. also testified that Danielle asked her and T. to write letters about the things defendant did to them, but she told Danielle that defendant never touched her. Da. instead wrote a nice letter about defendant because he had been so positive for the family. When a police detective came to Da.’s home with the letter provided by Danielle (People’s Exhibit 2), she denied writing that particular letter and said she had written a different letter.
Lawrence. Lawrence, the father of D, Danielle, and Da., was present when the detective interviewed Da. According to Lawrence, Da. was shocked by the letter presented to her, denied writing it, and denied that the signature was hers.
Jeff Calibro. Jeff Calibro, an Antioch police officer, spoke to L. in March 2002, when her mother brought her to the police station. L. told him she went to a jambalaya party in 2001 during which time the defendant put her in a headlock after going outside with him to get a sticker. L. did not report that defendant grabbed her breasts or otherwise touched her sexually while in the vicinity of his car. Instead, L. told Calibro that the defendant later approached her inside in a hallway and grabbed her breasts. L. also told Calibro about an incident that took place in the city of Pinole.
Amber. Amber is Michelle’s cousin; she is four years older than Michelle. Amber and Michelle grew up together and had been close but that was no longer the case at the time of trial. Amber denied Michelle ever told her of any sexual touchings by defendant, adding that Michelle never seemed uncomfortable around defendant.
In approximately August 2002, Michelle called Amber about five minutes before Amber was contacted by the police. Michelle said the police were going to call and she asked Amber to help her by telling the police that she had overheard defendant say on the phone to Michelle that he wanted to “eat her pussy.” Although Amber had heard no such comment, she told the police what Michelle asked her to say. She lied because Michelle asked for her help and Amber did not think the case would go as far as it did. After speaking to the police, Amber called Michelle and asked her “why she did it.” Michelle said Danielle had asked her to help.
Amber’s father was a friend of defendant and she has known defendant since she was a child. Defendant never said or did anything to make Amber feel uncomfortable.
Rebuttal
Sandy. In approximately July 2002, Sandy called D.’s parents’ residence to speak to Da. The purpose of the telephone call was to ask Da. if she would be willing to speak to a detective working on the case. Da. reported that defendant had touched her inappropriately and that she, like T., had written a letter describing what happened. Although she was aware of such reports, Da.’s mother advised Sandy that she would not permit Da. to speak to the detective.
Thomas Lown. Pinole police officer Thomas Lown testified that an initial police report was made on March 19, 2002, and that T. was interviewed at the Children’s Interview Center on April 17, 2002. Lown first became involved with this investigation in December 2002, after Danielle called to ask what was happening in the case. Danielle provided Lown with the names of other potential victims, including La. and Da. She also gave him the letters written by T. and Da.
Officer Lown drove to Da.’s home and spoke with her alone in the kitchen. He showed Da. a copy of People’s Exhibit 2; she said it was her handwriting. After reading the letter for twenty or thirty seconds she stopped and stated that she didn’t write “this,” that defendant never touched her breasts. She again confirmed it was her handwriting, then admitted that she wrote the letter but “it didn’t really happen.” She said something about getting caught up in the moment. Da. never mentioned writing a different letter.
Angela Nocera. Angela Nocera worked as an investigator on defendant’s case when he was represented by the Public Defender’s office. She interviewed Da. by telephone, and Da. denied writing any letters regarding the case. Da. said Danielle had asked her to write a letter stating that she had been molested, but she refused to do so. She did not mention she had written a more positive letter regarding defendant.
Defendant was represented by the public defender’s office until the office discovered a conflict, which resulted in a mistrial.
Discussion
I. Wheeler/Batson Claim
Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson v. Kentucky (1986) 476 U.S. 79, 89; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.) Defendant contends that the trial court erred in denying his Wheeler/Batson motion after the prosecutor used a peremptory challenge to strike a second African-American from the jury panel. The trial court did not err.
This claim relates to defendant’s third jury. In addition to the mistrial declared due to the conflict in the public defender’s office, the trial court granted a mistrial after sustaining a Wheeler/Batson motion involving a different jury panel.
A. Factual Background
The jury questionnaire included the following question: “The law states that the testimony of a single witness may be sufficient to prove any fact. In cases of sexual assault, the law further states corroboration of the alleged victim’s testimony is not necessary. Would you be able to follow such a law?” The questionnaire then offered three choices: “Yes,” “No,” and “Possibly,” followed by “Please explain” and space for an explanation. Mr. N. was the African-American juror at issue in the Wheeler/Batson motion. In answering whether he could follow the “no corroboration needed” rule, Mr. N. crossed out an “X” he had evidently marked in the space after “Yes” and marked an “X” in the space after “No.” He provided no explanation.
During voir dire, the prosecutor questioned Mr. N. as follows:
“Q. Mr. N[.], you also wrote you need corroboration. Do you still feel that way?
A. I just feel that—I mean, I have to hear the evidence and see what the case is so I can determine.
Q. Absolutely. That’s what we are hoping everyone will do, listen to the case and determine it from there. [¶] My question to you is if you just hear the testimony—and I know you haven’t heard it yet. But just hearing the testimony, are you going to say I cannot convict someone just by testimony alone. Sitting here right now, I know I cannot convict someone unless there’s DNA or some something other than people talking?
A. It probably has to be a little more.
Q. So even though—and this is fine. I’m glad you’re being honest. [¶] Even though the law says you don’t need other corroboration other than a single witness, you’d feel more comfortable and you would require something more?
A. A little more, yeah.”
After the prosecutor challenged another juror for cause on the issue, defense counsel expressed a concern about the prosecutor’s questioning, stating “it’s not only the single witness is enough. It’s that you have to believe that witness. And that hasn’t been mentioned. And maybe it’s my fault in the questionnaire in the sense that it’s not the law. Basically paraphrasing the questionnaire. We did it with the presumption of innocence, and we did it with the reasonable doubt and the single testimony. It still goes along with whether you believe the witness or no.” After deciding to dismiss the juror for cause on another ground, the court indicated agreement with defense counsel’s comments, stating “I think the inquiry is not complete when you inquire whether they would require more without the element. [¶] I do agree with [defense counsel], without the element─if you believe that witness is that sufficient because that is an element of the instruction.” After the prosecutor challenged Mr. N. for cause, the trial court questioned him further, asking “The law says that the testimony of a single witness is sufficient if you believe that witness. Of course, if you don’t believe it, then it’s not sufficient. [¶] Would you require more than that even though the law does not require that?” Mr. N. answered “No.” The trial court did not rule on the prosecutor’s challenge, and the prosecutor did not renew it.
After the prosecutor used a peremptory challenge against Mr. N., the defense objected, pointing out that the prosecutor had previously used a peremptory challenge against another African-American juror. The trial court offered the prosecutor an opportunity to explain her challenge. The prosecutor said her reason was the same as it was when she challenged Mr. N. for cause, that is “He said specifically on his questionnaire that he would require corroboration. He put no, crossed that out, and then put yes. I asked him many questions about needing corroboration, a lot of questions about it, and he was basically telling me I really would want it. . . .[¶] I moved for him to be kicked for cause because of that purpose, because he, I felt that he, required corroboration. Your Honor then came back and asked her own questions. And although I appreciate the questioning manner in which Your Honor did it, I think that it was short and he kind of said, well, can you follow the law? Well, yes. And to me, although the last answer was yes the issue was, well, can I follow the law? Sure I can follow the law. But how do you feel about this Mr. N[.]? Well, I really would require more than the testimony of a witness.”
In response, defense counsel said “the questioning with Mr. N[.] was a little bit skewed and incorrect as to the law” because he was asked if he would “require more than a single witness,” whereas “[t]he law is that you must believe that witness.” The trial court denied defendant’s Wheeler/Batson motion, reasoning “The criteria, based on California law, at this juncture, although it’s right now being reviewed at the U.S. Supreme Court level, is that there be a no [sic] race neutral reason for the dismissal. And whether or not any of us would make a different call on a particular challenge is not the criteria. [¶] I think that the prosecutor has expressed a race neutral reason, and that is the criteria that the Court is bound by.”
B. Analysis
Defendant urges that the trial court erred in denying defendant’s Wheeler/Batson motion.
A defendant’s Wheeler/Batson motion following a prosecutor’s peremptory challenge of a juror requires a three-step inquiry. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ ” (Johnson v. California (2005) 545 U.S. 162, 168; see also People v. Gray (2005) 37 Cal.4th 168, 186.)
In the present case, the trial court rejected defendant’s Wheeler/Batson motion at the third step of inquiry. “ ‘In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, “the trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .” [Citation.]’ ” . . . . ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] Inquiry by the trial court is not even required. [Citation.] “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” ’ ” (People v. Stanley (2006) 39 Cal.4th 913, 936.)
The ultimate issue is whether defendant carried his burden of proving purposeful discrimination. (People v. Schmeck (2005) 37 Cal.4th 240, 267.) “ ‘Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.’ ” (People v. Johnson (1989) 47 Cal.3d 1194, 1221.) Accordingly, the court’s ruling will be upheld on appeal if it is supported by substantial evidence. (People v. Jackson (1992) 10 Cal.App.4th 13, 23.)
Defendant asserts the trial court found that he failed to establish a prima facie case of discrimination and that the court did not reach step three. We disagree. By asking the prosecutor to explain her peremptory challenge and accepting the genuineness of the prosecutor’s race-neutral explanation, the trial court rendered moot the first step inquiry and rejected defendant’s motion at the third step. (People v. Schmeck, supra, 37 Cal.4th at p. 267.) Although the relevant portion of the trial court’s statement of its ruling is brief, there is no indication the trial judge misunderstood her “ ‘obligation to evaluate the prosecutor’s explanations.’ ” (People v. Jackson, supra, 10 Cal.App.4th at p. 23.) As noted previously, the court stated “whether or not any of us would make a different call on a particular challenge is not the criteria.” That is, the issue is not whether the court or anyone else would have stricken Mr. N. for the reason given, but whether the prosecutor stated a genuine race-neutral reason for the challenge. The court’s comment would have been irrelevant had it not been evaluating the genuineness of the prosecutor’s stated explanation.
Although the trial court referred to and discussed with defense counsel a pending United States Supreme Court case, in all likelihood Johnson v. California, supra, 545 U.S. 162, which addresses the showing necessary to establish a prima facie case, we disagree with defendant’s assertion on appeal that “the trial court never moved beyond step one.” The trial court’s only finding related to the genuineness of the reason offered by the prosecutor, not to whether defendant made a prima facie case.
Substantial evidence supports the trial court’s finding that the prosecutor’s explanation was not a pretext for discrimination. Mr. N. expressed reluctance, both in the questionnaire and initially during voir dire, with the notion of convicting based on the testimony of a single witness. The juror ultimately stated that he could follow the law, once it was explained that the hypothetical single witness was one the juror believed. Defendant presents no authority for the proposition that a prosecutor is obligated to accept a juror’s statement that he can follow the law and to disregard all earlier comments, no matter how troubling, in exercising peremptory challenges. People v. Turner (1986) 42 Cal.3d 711, is distinguishable. There, the juror made a “cryptic” remark that she would be emotional because she was a mother, and the prosecutor failed to ask her any questions to clarify her comment. (Id. at p. 727.) The court stated that “A prosecutor’s failure to engage Black prospective jurors ‘in more than desultory voir dire, or indeed to ask them any questions at all,’ before striking them peremptorily, is one factor supporting an inference that the challenge is in fact based on group bias.” (Ibid.) Here, the prosecutor asked several follow-up questions during voir dire in order to clarify Mr. N.’s position on the corroboration issue.
Miller-El v. Dretke (2005) 545 U.S. 231, is also distinguishable. There, the prosecutor mischaracterized the prospective juror’s comments about the death penalty in justifying his peremptory challenge and failed to challenge nonblack jurors who expressed even stronger reservations. (Id. at pp. 244-245.)
We do not agree with defendant’s suggestion that the original questionnaire or the prosecutor’s questions were so misleading that the answers lack any value in assessing the juror’s inclinations. The statement in the questionnaire read: “The law states that the testimony of a single witness may besufficient to prove any fact. In cases of sexual assault, the law further states corroboration of the alleged victim’s testimony is not necessary.” Although it is clearer to emphasize that the hypothetical single witness necessary to convict is one the juror believes, a reasonable juror would understand that to be implicit in the stated propositions. Obviously, it would never be appropriate to convict on the basis of a single witness a juror did not believe.
Because there were no other eyewitnesses or physical evidence and limited corroboration of the victims’ allegations, it is understandable why the prosecution would be concerned about a juror who initially expressed a preference for corroboration. And it is plausible the prosecutor would suspect that Mr. N. might harbor a continuing reluctance to convict based on uncorroborated but believable witness testimony, notwithstanding his statement that he could follow the law.
If a prosecutor’s explanation for a peremptory challenge “ ‘applies just as well to an otherwise-similar nonblack [juror] who is permitted to serve, that is evidence tending to prove purposeful discrimination. . . .’ ” (People v. Schmeck, supra, 37 Cal.4th at p. 270.) In this case, every seated juror and alternate answered yes to the “no corroboration needed” question in the questionnaire. Except for the first alternate, none of the jurors wrote explanatory comments. The first alternate juror wrote: “If I felt the alleged victim’s testimony was truthful, I would not feel a need for corroborating witnesses.” There is no evidence that the prosecutor permitted a juror to serve who expressed hesitations similar to those expressed by Mr. N.
Defendant argues in reply that the prosecutor failed to challenge jurors who made other types of comments that a prosecutor might find objectionable. Pretext can be shown where a prosecutor accepts jurors who made comments similar to those of the challenged juror, but defendant’s comparison is too attenuated to have significant probative value.
“When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.” (People v. Silva (2001) 25 Cal.4th 345, 386.) As explained above, the prosecutor’s stated reason was inherently plausible and supported by Mr. N.’s questionnaire and comments during voir dire, so the lack of detailed findings is not a reason to deny deference to the trial court’s finding. (Ibid.) It was not error to deny defendant’s Wheeler/Batson motion.
II. Motion for New Trial Arguing Ineffective Assistance of Counsel
After trial, defendant retained new counsel for the purpose of sentencing and filing a motion for new trial. The motion for new trial argued that trial counsel provided ineffective assistance of counsel because she failed to present expert testimony that defendant is not sexually interested in girls under the age of 14 and because she failed adequately to investigate the possibility of defendant testifying and to prepare him to do so.
The new trial motion raised a third ground for ineffective assistance of counsel, but defendant does not argue that the trial court erred in denying the motion on that basis.
A defendant is entitled to effective assistance of counsel under both the state and federal Constitutions. (In re Cordero (1988) 46 Cal.3d 161, 180.) In order to demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of “ ‘a reasonably competent attorney,’ ” and that counsel’s performance “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686-687.) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny” and “view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time.” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) To establish prejudice, the defendant must show “a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Staten (2000) 24 Cal.4th 434, 451.)
We will conclude that the trial court did not abuse its discretion in denying defendant’s motion for new trial based on alleged ineffectiveness of counsel. (People v. Callahan (2004) 124 Cal.App.4th 198, 201.)
A. Failure to Present a Stoll Expert
In People v. Stoll (1989) 49 Cal.3d 1136, 1149, the Supreme Court held that a defendant charged with committing lewd acts on a child may introduce a psychologist’s opinion testimony that a defendant displays no signs of deviant sexual tendencies, in order to support a defense claim that the charged acts did not occur. In defendant’s motion for new trial, he cited Stoll and argued that his trial counsel should have sought “expert psychological testimony” that would have shown defendant had no sexual interest in children. The claim is relevant to counts one, three, four, eight, and nine, involving T. and Lisa; those are the counts alleging acts against children under the age of 14.
In support of his motion, defendant submitted a declaration from Dr. Larry Wornian, a psychologist who administered the Abel Assessment for Sexual Interest (AASI) to defendant post trial. Dr. Wornian opined: “The test results showed that Mr. Jones had no sexual interest in girls under the age of fourteen. The test provides many different ways or chances to get a match to a person with a sexual interest in girls. In the analysis of Mr. Jones’ responses on the AASI, there was nothing close to a resemblance or match on any of the indices that would demonstrate Mr. Jones had sexual interest in girls under the age of 14. None of the fail safes built into the device to detect falsification were triggered by Mr. Jones’ responses, causing me to conclude that the test results are valid.” Dr. Wornian further averred that “I do not have sufficient information to express an opinion whether Mr. Jones committed the offenses for which he was convicted. It is my opinion, however, based on my interview with Mr. Jones—and particularly the results of his performance on the AASI—that there is a low probability that he displays an entrenched sexual interest in girls under the age of fourteen. If called to testify in this matter, I would so state.”
In rejecting defendant’s claim, the court observed that there was evidence the victims did not look like children at the time of the charged offenses. Consequently, it reasoned, the proffered expert testimony “wouldn’t have dovetailed with any of the actual testimony or what the jurors saw.” Trial counsel’s failure to present this expert testimony was ruled to be a reasonable tactical decision, since the testimony would have been of little probative value. For the same reason, any such failure was not prejudicial.
1. Adequacy of Trial Counsel’s Performance
Defendant maintains the trial court erred in rejecting his claim because the ruling was based on the mistaken belief that evidence in the record established what T. and Lisa looked like at the time of the charged offenses. In fact, there was no evidence presented of T.’s appearance between the ages of nine and twelve, when the offenses at issue occurred. T. was 14 years old when she was interviewed on videotape during the police investigation, and she was 17 years old at the time of trial. Nor was any evidence introduced describing Lisa’s physical appearance at the age of 13; she was 17 at trial.
The Attorney General does not cite to any evidence in the record rebutting defendant’s showing that the trial court was mistaken in asserting there was evidence of the victims’ physical maturity at the time the crimes were committed. Instead he argues that trial counsel could have acted for legitimate tactical reasons in deciding not to present a Stoll expert. For instance, it is suggested that trial counsel might have been concerned the test relied on by the expert witness “may be less than universally accepted” or that the jury might mistrust or reject the expert testimony. He also maintains the proffered testimony was somewhat equivocal, insofar as Dr. Wornian concluded there was a “low probability that [defendant] displays an entrenched sexual interest in girls under the age of fourteen.” (Italics added.) While these arguments may provide a basis to believe the expert testimony might not have been entirely convincing, the Attorney General has offered no real downside to the presentation of such evidence. That is, respondent does not support his assertion that the Stoll expert evidence would have been “a double-edged sword.” (In re Andrews (2002) 28 Cal.4th 1234, 1258.)
The prosecutor below argued that presentation of a Stoll expert would have permitted her to “go into the character of Mr. Jones,” since Stoll-type evidence is itself “ ‘character’ evidence” (Stoll, supra, 49 Cal.3d at p. 1161). Defendant had suffered a number of felony convictions and, most significantly, the probation officer’s report describes several allegations of rape against adult women. (See infra, at p. 27.) Defendant urges that the admission of his Stoll expert’s evidence would not have opened the door to allow any and all bad character evidence pertaining to him. In particular, an allegation of rape against an adult woman would be inadmissible because such character evidence would not have directly rebutted the Stoll expert’s testimony regarding his sexual proclivities. (See, e.g., People v. Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24 [“Nothing in our discussion is meant to imply that any evidence introduced by defendant of his ‘good character’ will open the door to any and all ‘bad character’ evidence the prosecution can dredge up. As in other cases, the scope of rebuttal must be specific, and evidence presented or argued as rebuttal must relate directly to a particular incident or character trait defendant offers in his own behalf”].)
We need not decide whether the proffered Stoll “character” evidence would have opened the door more broadly for evidence concerning the alleged acts of sexual misconduct, or only narrowly for evidence which directly contradicts the expert’s conclusion that defendant lacks sexual interest in children because, as explained below, defendant fails to show prejudice from his failure to present a Stoll expert.
2. Prejudice
The Stoll expert testimony would have pertained to counts one, three, four, eight, and nine, involving T. and Lisa. Because the other counts involved victims aged fourteen and older, such testimony would have been irrelevant as to those charges. If we are to assume that trial counsel’s performance was deficient in this regard, the issue then becomes whether there is a reasonable probability that presentation of a Stoll expert would have changed the outcome on one or more of counts one, three, four, eight, and nine.
We do not defer to the trial court on this issue, because the trial court’s analysis of the Stoll expert issue was affected by her misrecollection of the evidence.
Defendant’s theory at trial was that the victims, along with Danielle and Sandy, colluded and invented the allegations. There appears to be scant evidence supporting this conspiracy theory. Considerable time and energy was spent at trial developing just how the allegations against defendant emerged and the extent of any communications between the different victims and their families. A summary of this evidence provides little or no basis to infer the victims, Danielle, and Sandy colluded to bring false charges against defendant.
The allegations of abuse against T. and L. emerged in March 2002, when the girls told L.’s older sister C. that defendant had been touching them sexually. T. swore her to secrecy because D. had just had a baby and was happy in her marriage to defendant. T. did not want her aunt and mother arguing and the family to fall apart. However, C. did not share those feelings. She felt there must be disclosure because the molestation had to stop. C. telephoned the hair salon and told D. and Valerie (C. and L.’s mother) what the girls had reported, namely that defendant had been fingering T. and feeling L.’s breasts. She also spoke to Danielle.
Similarly, L. testified that she kept the abuse secret because defendant and D. were happy and it would “cause an issue” if she said something.
L.’s aunt Cassandra had a somewhat different account of how the allegations surfaced. According to Cassandra, L. told her sometime in 2002 that defendant had been “fondling” her. L. also told Cassandra that she, T, and Da. had spent the night together at a family gathering, had talked, and had decided to come forward. Cassandra advised L. to call her mother and, after that call, everybody “started calling everybody and everything just got really [ ] wild.”
That same month, March 2002, Danielle and T. reported defendant’s conduct to the police in Pinole. Valerie and L. also went to the police in March 2002.
Na. told her mother about defendant’s conduct “after everything had bl[own] up.”
The allegations of abuse of Lisa first emerged in June 2002, when Lisa advised her mother, Sandy, that defendant had touched her inappropriately when he gave her a ride home. On June 19, they reported defendant’s actions to the police in Oakland. After Lisa’s father Tim mentioned that he learned that defendant’s nieces had also alleged sexual abuse, Sandy said she wanted to contact the mother of the other victims. Tim provided her with Danielle’s name and phone number, as Sandy and Danielle did not know each other.
Sandy called Danielle soon after she went to the police. She told Danielle about reporting defendant to the authorities, but she did not tell Danielle any details about what happened to Lisa. Neither did Danielle give Sandy any details about defendant’s sexual abuse of T.
There were several follow-up conversations between Sandy and Danielle during which Danielle mentioned she had not heard from the Pinole Police concerning T.’s case. Sandy suggested that Danielle contact the prosecutor in Oakland since Lisa’s case was moving quickly. Also, Danielle faxed Sandy the letters written by T. and Da., so that Sandy could pass them on to an Oakland detective.
A detective subsequently assigned to the case testified that the investigation into Danielle’s allegations failed to move forward after the investigator retired.
Danielle then learned that Michelle had been touched by defendant. She called Michelle to relate that defendant had also been touching T. and she had reported it to the police, and to ask Michelle if the police could contact her. Danielle did not give Michelle any details about what happened to the other victims and at the time of trial Michelle still did not know those details.
When Sandy learned from Danielle that defendant had also touched Michelle, she called Michelle, whom she did not know. Sandy identified her daughter as a victim of defendant, but she did not provide any additional details. Neither Danielle nor Sandy said they needed help from others to get defendant in trouble; they were merely facilitating contact with the police. Michelle contacted the police after speaking to Sandy. She reported defendant’s actions at that time because she felt she would be believed if others were also saying that defendant touched them.
Before appearing in court, Michelle and Lisa did not know each other, and neither girl knew L. Although Michelle knew Da. and knew of T., they were not friends of hers and she did not speak to them about the case. T. and Lisa did not know each other before the case came to court.
There was testimony that on more than one occasion T., Da., and L. discussed what to do about defendant’s conduct. For instance, while attending a barbeque on the day of her uncle’s funeral, T. and Da. had a conversation with L., who was angry because defendant had just touched her. They discussed whether to tell an adult about defendant’s conduct.
Na. testified that once at D.’s parents’ home in Pinole she discussed defendant with her cousins, including Da., L., and T. They didn’t “really all get into it” because it was time to leave. Da. was “kind of saying it, but then again, she didn’t.” L. said that defendant had been touching her but did not say where. When Na. stated that defendant had touched her nipples, L. said, “Are you serious? He’s been touching you, too?”
None of these accounts suggest the girls discussed and compared the specifics of defendant’s conduct, aside from a reference to defendant touching their breasts. Nor was there any indication that Lisa or Michelle participated in discussions about defendant with Da., T., L., or Na.
The manner in which the allegations emerged strongly suggests the absence of any conspiracy to bring false charges against defendant. Several of the victims discussed defendant’s actions before the police became involved, but there is nothing in this record that would lead us to conclude these were detailed discussions. Also, there is scant evidence the various prosecution witnesses were motivated to invent these charges. In fact, it appears that most of the victims were reluctant to report the offenses because to do so would disrupt families and friendships. The only evidence of apparent hostility directed toward defendant came from his daughter’s (Starr Jones) testimony to the effect that Danielle did not like him. Nevertheless, the record does not support a conclusion that Danielle’s hostility was elevated to the degree that she would make up the types of allegations involved in this case, or that she had anything to gain by such allegations, or that she exercised any influence over any of the victims aside from, presumably, her daughter.
With the exception of L., who changed her story several times, it does not appear the victims’ testimony was significantly discredited. The jury was not able to reach a verdict on those counts that named L. as a victim. Otherwise, defendant’s trial counsel managed to bring out only minor discrepancies and details with the hope that the testimony of T. and Lisa might appear improbable. We observe that the trial judge certainly made her feelings known on this topic, stating: “[the victims] ‘came across as very credible.’ ”
The prosecution’s case-in-chief included testimony from Na., the victim of uncharged sexual offenses. The probative value of this form of evidence is well recognized: “the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983; see also People v. Yovanov (1999) 69 Cal.App.4th 392, 403-404.)
A significant theme in defendant’s closing argument was that Da. denied that T. told her about any sexual touchings and that Da. denied being touched sexually by defendant. Da., who was the only victim to recant her allegations of abuse, was called as a defense witness at trial. Her version of the events was strongly challenged. For example, Da. at first testified she learned from T. in mid-March that defendant had fingered her, but later said she did not know anything about any such allegation of abuse before “everything started coming out April 2002.” Da. also denied writing a letter (People’s Exhibit 2) that described sexual abuse by defendant, claiming instead that she wrote a “nice” letter. However, she acknowledged to Detective Lown writing Exhibit 2, and never mentioned anything about a “nice” letter to the officer or an investigator for the defense.
The prejudice analysis in this case is usefully compared to that in Stoll, supra, 49 Cal.3d at p. 1163, where the exclusion of the expert witness was ruled to be prejudicial. There, four defendants were jointly tried and convicted of 36 counts of lewd conduct against seven young boys. (Id. at p. 1141.) Two of the defendants, who were convicted on four and five counts, sought to present expert testimony that they displayed no signs of sexual deviance. (Id. at pp. 1141-1142, 1146-1147, 1151.) In finding prejudice, Stoll emphasized that the defense “mounted a thorough attack on the credibility of each witness.” (Id. at p. 1162.) Four of the five victims involved in the counts at issue admitted they gave false testimony at the preliminary hearing; two of those admitted to at least one untruth in their trial testimony; and all five victims contradicted their pretrial statements in various respects. (Ibid.) Finally, one of the defendants had a partial alibi. (Ibid.) Although Stoll is similar to this case in that there is no physical evidence or eyewitness testimony corroborating the abuse allegations, the prosecutor’s case against defendant did not contain the fatal flaws emphasized by Stoll in its prejudice determination.
Although the proffered Stoll testimony, if believed, would tend to suggest that defendant may not have committed the lewd acts (Stoll, supra, 49 Cal.3d at p. 1161), absent significant impairment of the victims’ credibility or more evidence supporting defendant’s conspiracy theory, there is no reasonable probability such evidence would have produced a different result on any of the counts at issue.
B. Failure to Prepare Defendant for Testifying
A defendant in a criminal case has the right to testify, even if contrary to the advice of counsel. “[T]he right to testify in one’s own behalf is of such fundamental importance that a defendant who timely demands to take the stand contrary to the advice given by his counsel has the right to give an exposition of his defense before a jury. [Citation.] The defendant’s insistence upon testifying may in the final analysis be harmful to his case, but the right is of such importance that every defendant should have it in a criminal case. Although normally the decision whether a defendant should testify is within the competence of the trial attorney [citation], where . . . a defendant insists that he wants to testify, he cannot be deprived of that opportunity.” (People v. Robles (1970) 2 Cal.3d 205, 215, fn. omitted; accord People v. Bradford (1997) 15 Cal.4th 1229, 1332.)
According to defendant, he decided not to testify “based on the advice of my Counsel.” He now contends the trial court abused its discretion in denying his motion for new trial because his trial counsel failed adequately to explore the possibility of and prepare him for testifying. In his declaration in support of the motion for new trial defendant avers that “my attorney spent so little time with me discussing my case that she was unaware of the value of my testimony to my case . . . [¶] . . . she spoke to me outside of court about the facts of my case for no more than 4-5 hours. She visited me in the jail no more than four or five times. As the trial proceeded, she never came to speak to me about my version of the events and as to what I might testify.”
There was an obvious tactical reason not to have defendant testify—the near certainty that he would be significantly impeached with, at the very least, those felony convictions which were crimes of moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 316-317 (Castro).) As outlined in the probation report, in 1989 defendant was convicted of assault with a deadly weapon (a knife); in 1993, felon in possession of a firearm; and in 1997, felon in possession of a firearm plus five counts of grand theft. All are crimes of moral turpitude. (People v. Thomas (1988) 206 Cal.App.3d 689, 700 [assault with a deadly weapon]; People v. Littrel (1986) 185 Cal.App.3d 699, 702-703 [felon in possession of a firearm]; People v. Cudjo (1993) 6 Cal.4th 585, 626 [grand theft].) Defendant concedes that, had he testified, he would have been impeached with felony convictions for theft, assault and firearm possession.
Although no declaration from trial counsel accompanied the motion for new trial and the trial court did not conduct an evidentiary hearing, defendant’s declaration suggests that counsel’s recommendation that he not testify was based on the likelihood of impeachment. He averred, “I did not testify based on the advice of my attorney. I recognize, and my attorney explained to me, that if I testified I would be impeached by several prior felony convictions. At the same time, however, I believed that the effect on my case of the jury learning about my prior convictions had to be weighed against the value that my testimony would provide.” Trial counsel could reasonably have been concerned that disclosure of defendant’s prior convictions would increase the likelihood of guilty verdicts in the present case. The jury likely would have believed defendant’s prior convictions showed a predisposition towards dishonesty, which would have damaged defendant’s credibility and cast him in a negative light. “[I]t is undeniable that a witness’ moral depravity of any kind has some ‘tendency in reason’ (Evid. Code, § 210) to shake one’s confidence in his honesty.” (Castro, supra, 38 Cal.3d at p. 315.)
As the trial court recognized, there was also the possibility that defendant might be confronted with other conduct involving moral turpitude described in the probation report. (See People v. Wheeler, supra, 22 Cal.3d 258.) In particular, in 1987 he was charged with kidnapping and rape, resulting in a conviction for possession of cocaine; in 1988 he was again arrested for kidnapping and rape, resulting in the assault conviction; and in December 1995 he was arrested a third time for rape, but the charges were again dismissed. Defendant contends that if trial counsel were concerned about such impeachment she should have obtained a ruling about the admissibility of the incidents before trial. He argues that evidence regarding the various incidents may not have been admissible and that the prosecutor might not have been able to secure the necessary witnesses. We need not resolve these issues; counsel’s concern about impeachment with the multiple prior felony convictions was sufficient to justify the decision to recommend that defendant not testify.
Defendant was also convicted in 1987 for possession of cocaine and in 1994 for domestic violence; respondent does not contend those were crimes of moral turpitude.
Significantly, this is not a case in which defendant’s testimony was critical to the defense. Defendant’s declaration supporting the motion for new trial describes nothing extraordinary that would have come to light had he testified; much of what is in the declaration was, or could have been, testified to by the other defense witnesses. By comparison, in People v. Callahan, supra, 124 Cal.App.4th 198, 214-215, the court found no abuse of discretion in the trial court’s decision to grant a new trial motion where trial counsel, by advising defendant not to testify, “prevented her from telling the jury why she acted as she did” and effectively left her without a defense to the charged crimes. The court reasoned that “[a]bsent a credible explanation of her conduct, an explanation that only she could offer, [defendant’s] concededly peripheral involvement in [the victim’s] death allowed her to be drawn into a felony-murder conviction by the current of the felony-murder rule.” (Id. at p. 215; see also People v. Andrade (2000) 79 Cal.App.4th 651, 660 [affirming grant of new trial due to advice not to testify where “defendant was not subject to substantial impeachment and was the only witness who could provide ‘a plausible explanation for [his] presence’ in the victims’ homes. Without his testimony, the jury had little alternative but to accept the People’s theory that defendant entered each residence to commit a rape”].)
Because defendant’s theory at trial was that the incidents never occurred, his testimony would have essentially amounted to a general denial of the truth of the charges. In this instance, such denial would have come at a considerable cost. The jury would have learned, at the least, of defendant’s prior felony convictions involving moral turpitude.
Defendant contends that, irrespective of the validity of the reasons not to have defendant testify, trial counsel was still obligated to spend time investigating in detail what defendant’s actual testimony would have been and preparing defendant to testify. “In Strickland [v. Washington, supra, 466 U.S. at pp. 690-691], the Supreme Court specifically addressed counsel’s duty to investigate and made clear courts should not equate effective assistance with exhaustive investigation . . . ‘[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.’ [Citation.] Concomitantly, the high court has recognized that valid strategic choices are possible even without extensive investigative efforts.” (In re Andrews (2002) 28 Cal.4th 1234, 1254.) Here, in view of the likelihood of impeachment and the little to be gained by testifying, trial counsel could reasonably have decided not to invest the substantial time necessary to investigate defendant’s possible testimony in all its particulars. She knew that, in essence, her client’s testimony would be to deny the allegations, and his declaration does not show otherwise. Defendant cites no authority supporting the proposition that trial counsel was obligated to do more in these circumstances.
Defendant also contends that defendant’s decision not to testify was “coerced” due to trial counsel’s failure to prepare him for testifying. According to his declaration in support of the new trial motion, “As of Thursday, June 9, when I had to decide whether to testify, we had never discussed my particular response to each of the allegations . . . . I did not know what questions she would ask on direct examination and there was no discussion about what I might anticipate in cross-examination. Without any preparation, I felt I would be foolhardy if I did not follow my lawyer’s advice not to testify.” However, defendant’s declaration does not aver that he requested his counsel to prepare him for testifying because he was considering testifying despite her advice that he not do so. Absent such a request, counsel may have believed that defendant would ultimately accept her advice not to testify and that it would not be a good allocation of resources to spend time preparing defendant to testify. “[N]ormally the decision whether a defendant should testify is within the competence of the trial attorney,” and defendant has not shown that he insisted that he wanted to testify irrespective of her advice. (People v. Robles, supra, 2 Cal.3d at p. 215; see also People v. Bradford, supra, 15 Cal.4th at p. 1332 [“ ‘it is only in case of an express conflict arising between the defendant and counsel that the defendant’s desires must prevail’ ”].) Defendant cites to no authority supporting the proposition that defense counsel was obligated to prepare defendant to testify in the circumstances of this case.
As the trial court found, defendant had plenty of time to come to that decision and to request that he be prepared to testify. There were two previous mistrials in the case and a month-long hiatus during the defense case when one of D.’s brothers died unexpectedly.
In light of the obvious tactical reason not to present defendant’s testimony, the trial court did not abuse its discretion in denying defendant’s motion for new trial based on trial counsel’s failure to investigate and prepare his testimony.
C. Failure to Conduct an Evidentiary Hearing
As an overarching matter, defendant urges reversal of the trial court’s ruling on his motion for new trial because “the process by which his new trial motion was adjudicated deprived him from fully developing those claims.” In particular, defendant maintains the trial court should have heard testimony from trial counsel regarding the reasons for her acts and omissions and that the court should have heard mock-trial testimony from defendant.
Defendant presents no authority supporting the proposition that the trial court was required to conduct a further hearing in the circumstances of this case. In two of the cases he cites, the trial courts refused altogether to consider the defendants’ new trial motions. (People v. Cornwell (2005) 37 Cal.4th 50, 98, 100; People v. Braxton (2004) 34 Cal.4th 798, 817, 820.) In the third case, People v. Hedgecock (1990) 51 Cal.3d 395, 419, the Supreme Court held only that a court may exercise its discretion to conduct an evidentiary hearing regarding allegations of juror misconduct in a new trial motion where the “defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred.” The trial court did not abuse its discretion in concluding that a further hearing was unnecessary because, as explained above, defendant failed to make a prima facie showing of ineffective assistance of counsel. (Id. at pp. 415, 419.)
In any event, even if we were to agree that the trial court failed to provide defendant an appropriate opportunity to support his motion for new trial, there would be no need to remand to the trial court because it is clear that defendant’s motion for new trial lacked merit. (People v. Braxton, supra, 34 Cal.4th at p. 818.)
III. Denial of a Full Trial Transcript
Defendant contends that “the trial court committed prejudicial error in denying new trial counsel a reporter’s transcript of the trial.” The argument fails because defendant did not show a particularized need for a full transcript. (People v. Bizieff (1991) 226 Cal.App.3d 1689, 1702.)
In mid-August 2005, upon his appointment to represent defendant, post-trial counsel asked the trial court for “enough time to have a transcript prepared, so that I can familiarize myself with the circumstances of the trial and determine what motions, if any, we will be filing.” Pointing out that it would take “at least four months” for the court reporter to prepare a transcript, the court stated it was “very reluctant . . . to put this off for an extended period of time.” The court explained, “I think there is an enormous prejudice . . . to . . . the victims as well as the family members . . . to have this extended out far into the future. I think, especially with the history of this case, and having two mistrials, and quite a bit of time in between, multiple attorneys starting from scratch, that this case, in particular, needs some finality.” The court noted that it would be “six to eight months” before it could hold a hearing on a new trial motion if a full transcript were prepared. Because such a delay was “clearly excessive,” the court asked for “some ideas” from both parties “to accommodate the interests of both.” Defendant’s counsel said he thought there was “potentially medium ground” and that after reviewing the case file and talking to trial counsel he would be “more up on the facts of the case . . . to better advise the Court of a likelihood of a motion being made, and whether, in fact, the transcript is necessary, or whether there may only be portions of the transcript that would be necessary.”
A week later, the trial court granted counsel’s request for transcripts of hearings involving in limine motions and defendant’s waiver of his right to testify. At the start of September, counsel requested the “documentation used by the probation officer who prepared the probation report,” which he subsequently received. During the rest of the month, defendant’s counsel and the trial court had discussions about counsel’s efforts to speak to trial counsel; counsel indicated that he “wanted to talk to her first and see if there are any particular things that I would need a transcript for.” In mid-October 2005, defendant’s counsel stated that he had talked to trial counsel, that there would be a motion for a new trial, and that it could be filed within two weeks.
The motion was filed in early November 2005. It asserted, “While new counsel would ordinarily be entitled to a transcript of the trial in order to prepare a motion for a new trial (People v. Westbrook (1976) 57 Cal.App.3d 260), this Court made clear when present counsel entered this case that the time necessary to prepare the transcript by itself would cause unreasonable delay, without considering how long it would take counsel to read the transcript and then conduct follow-up research and investigation. Counsel then stated he would attempt to prepare this motion with some proceedings transcribed and otherwise rely on trial counsel and other avenues for recreating the events at trial. [¶] In submitting this motion, present counsel in no way concedes that an entire transcript of the trial is not a necessary component to his motion for a new trial.”
As explained in People v. Bizieff, supra, 226 Cal.App.3d at p. 1702, “the trial court may properly deny a request for free transcripts to prepare a motion for new trial where the indigent defendant fails to show a particularized need for transcripts.” (See also People v. Markley (2006) 138 Cal.App.4th 230, 241.) A trial court’s concern about delay is a wholly legitimate basis to deny a request for a full transcript, especially absent a showing of particularized need. (People v. Bizieff, supra, 226 Cal.App.3d at p. 1704; see also People v. Cornwell, supra, 37 Cal.4th 50, 101 [trial court did not err in refusing to consider a motion for new trial where the matter would have been delayed for six months while substituted counsel performed investigation].) In this case, defendant’s counsel requested a full transcript upon his appointment, but he made no effort to show a need for one. To the contrary, after the trial court indicated its concern about delay, counsel stated on several occasions that he would identify particular portions of transcripts that he needed, and he did in fact identify certain specific materials. Counsel never again requested a full transcript and did not assert a right to a transcript or attempt to justify his initial request for a full transcript until the belated effort to preserve the issue in the motion for new trial itself. Defendant’s claim on appeal is without merit.
IV. Ineffective Assistance of Counsel as to Age Element in Count Thirteen
A necessary element of the offense charged in count thirteen, commission of a lewd act on a child aged 14 or 15 (§ 288, subd. (c)(1)), is that Michelle was 14 or 15 years old at the time defendant grabbed her breasts in a bathroom at her grandmother’s retirement party. Defendant contends that the prosecutor failed to prove the age element in her case-in-chief and that defense counsel committed ineffective assistance of counsel by asking a defense witness when the party occurred. This presents a close question.
During the prosecutor’s direct examination of Michelle, she asked how old Michelle was when she attended her grandmother’s retirement party. Michelle replied that she was “Hm, 15, 16.” The prosecutor refreshed her recollection with her preliminary hearing testimony and Michelle agreed that she was “About 15” at the time of the party. Defendant contends that Michelle’s testimony “was so equivocal that it constituted insufficient evidence that she was 14 or 15 and not 16 years old.” Respondent does not argue that the evidence in the prosecution’s case-in-chief was sufficient to support a finding of the age element beyond a reasonable doubt. Without so deciding, for purposes of this appeal we assume that the prosecution’s evidence did not provide substantial evidence to support the age element. (People v. Castaneda (1994) 31 Cal.App.4th 197, 202.)
One of defendant’s witnesses was Michelle’s cousin Amber, who denied that Michelle told her of sexual touchings by defendant. Regarding the incident at issue, Amber testified that she and Michelle had a grandmother in common, that they both went to the grandmother’s retirement party, that Michelle did not seem uncomfortable around defendant at the party, and that Michelle did not say that defendant tried to touch her at the party. Trial counsel asked Amber, “When was the retirement party?” She answered, “Oh, like my son wasn’t even a year yet, so it was still [19]99.” Because Michelle was born in December 1984, she could have been no older than barely 15 in 1999. Accordingly, defense counsel put on evidence that strongly corroborated the prosecution’s ill-supported contention that Michelle was 14 or 15 years old at the time of the party.
Respondent contends that the ineffective assistance claim fails because counsel could have had a legitimate reason for asking Amber when the retirement party occurred. People v. Williams (1997) 16 Cal.4th 153, 217, explains that “[e]ven where defense counsel may have ‘ “elicit[ed] evidence more damaging to [defendant] than the prosecutor was able to accomplish on direct” ’ [citation], we have been ‘reluctant to second-guess counsel’ [citation] where a tactical choice of questions led to the damaging testimony.” It is also well-established that, when considering a claim of ineffective assistance of counsel on direct appeal, “competency 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.)
On this record, it is possible that, based on prior investigation, defense counsel expected Amber to say that the party occurred in 2001 or later, thereby establishing that it could not have happened when Michelle was 14 or 15. It is also possible that, when counsel received an answer she did not expect, she decided not to highlight the damaging testimony by pressing the point further. Even if that explanation does not seem particularly likely, we cannot say that the record affirmatively establishes that there was “ ‘ “no conceivable tactical purpose” ’ ” for trial counsel’s question. (People v. Lewis (2001) 25 Cal.4th 610, 675.) Defendant may bring a petition for habeas corpus if he is able to show that the question was not the result of a reasonable tactical decision (In re Jones (1996) 13 Cal.4th 552, 559, 570; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266), but we must reject defendant’s claim on direct appeal.
Defendant contends that this tactical reason would not have been rational because the prosecution’s evidence at that point in time was not legally sufficient. However, because the legal sufficiency of Michelle’s testimony in the case-in-chief was debatable, counsel would not have acted unreasonably in offering testimony on the point favorable to the defense.
Defendant also contends that defense counsel was ineffective for failing to impeach Michelle with her testimony from a prior trial that she was in eleventh grade and 16 or 17 at the time of the party. However, courts “rarely second-guess counsel’s cross-examination tactics.” (People v. Ervin (2000) 22 Cal.4th 48, 94.) Defense counsel might reasonably have decided that impeaching Michelle with that testimony would prompt her to more persuasively justify her testimony in the current trial that she was 15. Alternately, defense counsel might reasonably have believed that impeaching Michelle with her prior testimony would alert the prosecutor to the need to provide more definitive evidence of Michelle’s age in rebuttal. Again, we cannot conclude that the record affirmatively establishes that there was no conceivable tactical reason for not impeaching Michelle with her prior testimony.
V. Sufficiency of the Evidence of Restraint on Count Eleven
In count eleven, defendant was convicted of sexual battery, section 243.4, subd. (a). That section provides that “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” (§ 243.4, subd. (a).) The basis for count 11 was the incident at Michelle’s sister’s baby shower when defendant touched Michelle’s breast while she was holding his infant daughter. The parties agree that the jury’s finding that defendant restrained Michelle is not supported by substantial evidence. We also agree.
Where evidence is legally insufficient to prove an offense, a reviewing court may modify the conviction to one for a lesser included offense supported by the evidence. (§ 1260.) We will modify the judgment to reflect a conviction of misdemeanor sexual battery, former section 243.4, subd. (d)(1) (now section 243.4, subd. (e)(1)).
VI. Stay of Sentence on Count Eight
The parties agree that the trial court stayed the sentence on count eight under section 654, yet the abstract of judgment indicates that the court imposed a concurrent sentence on that count. We will direct that the abstract of judgment be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
We also note that the November 18, 2005, abstract of judgment incorrectly lists a total sentence of 15 years to life. As the parties recognize in their briefs, defendant actually received a total sentence of 30 years to life, including a sentence of 15 years to life on count three and a consecutive sentence of 15 years to life on count nine. We will direct that the abstract of judgment be corrected in this respect as well.
VII. Defendant’s Apprendi/Blakely Claim
Finally, defendant argues that the sentences imposed on counts three, four, and nine must be vacated because the trial court, rather than the jury, made a factual finding concerning probation ineligibility which was essential to imposition of lengthy mandatory sentences on those counts.
Defendant received three 15-year-to-life sentences (one of which is concurrent) under former section 667.61, subdivision (b). Section 667.61, the One Strike law, “sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 741.) The statute provides for mandatory 15-year-to-life sentences for defendants convicted of an offense listed in subdivision (c), under a circumstance listed in subdivision (e). (§ 667.61, subd. (b).) It is undisputed that the jury found that defendant committed the crimes against multiple victims, which is a qualifying circumstance. (§ 667.61, subd. (e)(5).) Under the applicable version of the statute, defendant’s violations of section 288, subdivision (a), were qualifying offenses, “unless the defendant qualifie[d] for probation under subdivision (c) of Section 1203.066.” (Former § 667.61, subd. (c)(7).) Former section 1203.066, subdivision (c), provided an exemption from probation ineligibility for violations of section 288, subdivision (a), where a court makes a series of findings relating to the defendant’s relationship to the victim, the victim’s best interests, and the possibility of rehabilitation of the defendant. (Former § 1203.066, subd. (c).)
The current version of the statute does not contain the probation ineligibility condition. (§ 667.61, subd. (c)(8).)
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the Supreme Court held that “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Accord Cunningham v. California (2007) 549 U.S. ___, [127 S.Ct. 856, 864]; Blakely v. Washington (2004) 542 U.S. 296, 300.) Defendant contends that the finding whether defendant was eligible for probation under former section 1203.066, subdivision (c), was a finding necessary to imposition of the 15-year-to-life sentences and, therefore, was an issue that had to be submitted to the jury. In support of this proposition, defendant cites People v. Wutzke (2002) 28 Cal.4th 923, 926, which explained the effect of former section 1203.066, subdivision (c), stating “By a complicated intersection of the ‘One Strike’ law (§ 667.61) and the statute restricting probation eligibility in lewd conduct cases (§ 1203.066), a person convicted of lewd conduct (§ 288) against multiple underage victims can both qualify for probation and avoid a mandatory indeterminate life term only if” he satisfies the circumstances listed in section 1203.066, subdivision (c). However, Wutzke does not discuss Apprendi or indicate that the probation eligibility findings must be made by the jury. Indeed, the trial court made the findings at issue in Wutzke. (Wutzke at p. 926.)
As defendant acknowledges, the Apprendi claim he makes was rejected by the Third District in People v. Benitez (2005) 127 Cal.App.4th 1274. Benitez held that “the proviso in Penal Code section 667.61, subdivision (c)(7) (that a defendant is unqualified for probation) is not an element of the enhancement to be negated upon proof to a jury. Rather, it is a legislative grant of authority to the trial court to entertain a request for probation (should a defendant satisfy the criteria in section 1203.066, subd. (c)) despite eligibility otherwise for sentencing under section 667.61.” (Benitez at p. 1278.) The court further explained that “[f]inding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because a defendant’s eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely.” (Ibid.)
Defendant’s attempts to challenge the reasoning of Benitez are unavailing. His Apprendi/Blakely claim shall be denied.
Disposition
The trial court is directed to modify the abstract of judgment in the following particulars. The sentence imposed on count eight is stayed and count eleven is a conviction of misdemeanor sexual battery, former section 243.4, subd. (d)(1). The total indeterminate sentence is 30 years to life. The judgment is otherwise affirmed.
We concur. JONES, P.J., SIMONS, J.