Opinion
C097211
08-02-2024
THE PEOPLE, Plaintiff and Respondent, v. KRISTOPHER LINDSEY JONES, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. LODCRFE20190001429
MESIWALA, J.
A jury found defendant Kristopher Lindsey Jones sexually molested a minor (victim) at an after-school program for elementary schoolers (the program). After trial, the trial court denied defendant's motion for new trial based on ineffective assistance of counsel and his motion for discovery under the California Racial Justice Act.
On appeal, defendant contends: (1) he received ineffective assistance of counsel because his trial counsel failed to interview the program director, failed to adequately prepare his character witnesses, and failed to utilize the defense expert to refute the prosecution's expert witness testimony; and (2) the trial court erred in denying his motion for discovery.
We disagree and affirm. All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Molestation
Victim started attending the program when he was six years old. The program began around 2:30 p.m. every school day with a snack, followed by homework hour, enrichment hour, play time, and ended around 6:00 p.m. Victim usually stayed until 6:00 p.m.
Defendant was one of five adult staff members at the program. Victim recalled at trial that defendant often asked victim to help clean out the classrooms near the end of the day when other children were playing outside, and they would be alone for 20 to 30 minutes. Victim also remembered being alone in the computer lab with defendant.
On several occasions when they were alone in the teachers' lounge, in the first grade classroom, and in the fourth grade classroom, defendant would make victim play a "tasting game." This game involved defendant blindfolding victim, placing food items, usually a particular brand of yogurt, on his erected penis, and putting it in victim's mouth for victim to guess the flavor. To play the game, defendant regularly carried that brand of yogurt with him.
One time when victim's mother picked up victim later than usual, she found victim and his brother in a classroom with defendant and another child, and the classroom door was closed. She could not see what they were doing inside, but victim came out when she knocked on the door. After this incident, victim's mother set up a conference with the program's director (director). But victim did not tell his mother or director about what defendant did to him because he felt he could not open up to anyone at the time. Following the conference, victim was told to stay away from defendant, and they stopped playing the tasting game.
During the period of molestation, victim frequently made excuses to avoid school; during middle school and high school, victim had flashbacks of the molestation, causing him to "los[e] [his] mind a lot"; and in high school, victim was a "troubled kid" and used marijuana, cocaine, and crystal methamphetamine.
When he was 17 years old, victim attended a residential program that helped him process the molestation and build self-confidence. He finally disclosed the molestation to a doctor there. The doctor reported the molestation to the police.
B. The Phone Call, Text Messages, and Arrest
Detectives at the sheriff's office contacted victim on the same day they received the report from victim's doctor. Posing as victim, two detectives used victim's Facebook account to message defendant, asking how he was doing and informing him that victim was 17 years old. At the detectives' request, victim also called defendant to arrange an in-person meeting.
During the call, victim asked defendant if he remembered the tasting game, and defendant said he "kind of remember[ed] it." Victim then described the game: "[Y]ou'd make me taste yogurt with, you know, your slong and we did it a couple of times in the -the teachers' lounge I'm sure and also in my first grade class." Defendant responded he "remember[ed] it a little bit." Victim proceeded to ask defendant if he "still want[ed] to play that game," to which defendant responded "[o]h, yeah." They agreed to meet up in person soon and "play that game again." Defendant also confirmed he remembered a "guess what I was grabbing game," which victim described as: "Made me touch you and I said it was a finger, but it really wasn't I didn't know what to say at the time." They both recalled defendant was "pretty hard" during that game.
After this call, defendant and victim planned to meet at a liquor store and defendant agreed to bring yogurt and a condom. Defendant was arrested at the liquor store. Inside defendant's car, detectives found condoms, lubrication, male enhancement supplement, and a yogurt of the same brand that defendant used to use with victim at the program. The male enhancement supplement and the yogurt were purchased just before defendant went to the liquor store.
C. Trial Court Proceedings
The People charged defendant with four counts of a sex crime with a child 10 years or younger based on the incidents in the fourth grade classroom, the first grade classroom, the computer lab, and the teachers' lounge (§ 288.7, subd. (b), counts 1-4), and one count of lewd acts upon a child (§ 288, subd. (a)).
At trial, director was called as the People's witness. She testified that she "was always looking out everywhere" when she ran the program, "[g]oing into the different classrooms, in the cafeteria," and the playground. She "never stay[ed] too long in one place" so she could "make sure things were running good." But she never saw defendant alone with victim. The classrooms doors were usually locked unless she or a staff member with her permission opened them, and the teachers' lounge was usually locked unless a janitor was inside. During cross-examination, director stated she "did not believe [victim] because, you know, he had - he always had a little attitude and different things like that."
Defendant testified that he was confused during the phone call with victim because the conversation quickly turned sexual. When victim asked him if he remembered the tasting game, he thought victim meant the group enrichment activity at the program. Defendant denied ever being alone or playing the tasting game with victim at the program. He recalled that the staff members were not allowed in the teachers' lounge and that he needed permission from director or help from a janitor to enter a classroom. Defendant nevertheless admitted he went to the liquor store planning to have sex with victim, but claimed he brought the yogurt only at victim's request and did not know what victim wanted to do with it.
Four of defendant's close friends testified as his good-character witnesses, and all asserted defendant is trustworthy and honest.
The People's expert witness testified regarding the child sexual abuse accommodation syndrome (the syndrome), a theory developed by Roland Summit that aims to educate therapists treating sexually abused children and to dispel common misconceptions about how children experience and report sexual abuse. The theory has five parts, including secrecy, helplessness, entrapment or accommodation, delayed and unconvincing disclosure, and retraction or recantation.
Defendant's expert witness Alan Abrams pointed out that the syndrome has been widely criticized by scientific papers for creating a stereotypical response to alleged childhood sexual abuse and even Summit himself later renounced his paper on the syndrome. Abrams also testified that the use of marijuana and methamphetamine is correlated with schizophrenia. Methamphetamine-induced schizophrenia could lead to paranoid delusions, leading people to believe that they are being harmed or plotted against by others.
After close of evidence, the People dismissed the sex crime count based on the incident in the computer lab (count 3) for insufficient evidence. The jury found defendant guilty of committing sex crimes with victim in the first grade classroom and the teachers' lounge (counts 2 and 4) and a lewd act upon a child (count 5), but deadlocked on a sex crime with victim in the fourth grade classroom (count 1). The People then dismissed count 1 in the interest of justice.
The trial court sentenced defendant to prison for 30 years to life. Defendant timely appealed.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective because he failed to interview director before trial, failed to adequately prepare character witnesses, and failed to utilize Abrams to refute prosecution's expert testimony about the syndrome. We find no deficient performance by counsel and no prejudice.
A. Additional Background
After trial, defendant filed a motion for new trial on the ground that his trial counsel was ineffective for failing to investigate. The motion alleged trial counsel did not interview director prior to trial but acknowledged trial counsel received in discovery a video recorded interview of director conducted by the detectives. Director explained the operations of the program, confirmed defendant and victim were at the program together, and recounted her conference with victim and his mother in the video.
A private investigator filed a declaration in support. He stated director told him after trial that" 'there was no way that [defendant] could have done what he is accused of doing'" because" 'it was impossible for a staff member [to] be gone for 20 or 30 minutes or more'" without her noticing. Director further recalled the incident where victim's mother found victim and defendant in a classroom together, clarifying that victim's brother was also in the classroom with them and victim denied defendant had touched him. Also, director stated she was the only one with the keys to the classrooms, the teachers' lounge "was always locked unless a janitor was inside cleaning," and no children or staff members were allowed in the lounge.
Defendant's character witnesses also filed declarations to support the motion, complaining trial counsel never answered their questions about their testimonies, never gave them details about the case, or otherwise prepared them to testify. They stated they had more information about defendant's honesty that they could have shared with the jury, and one also claimed she had information that would help the jury understand the operation of an after-school program.
In his declaration supporting the motion, Abrams stated trial counsel initially contacted him to rebut the testimony by the prosecution's expert witness about the syndrome, and he prepared a report on the topic. But at trial, trial counsel asked him many questions about the effect of drug use to attack victim's credibility.
The trial court denied the motion, finding defendant "presented no new facts of exculpatory evidence . . . that should have come into this trial that would have changed the result."
B. Analysis
To establish constitutionally inadequate representation, the defendant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687.)
Trial counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Strickland v. Washington, supra, 466 U.S. at p. 691.) "[A] defense attorney who fails to investigate potentially exculpatory evidence, including evidence that might be used to impeach key prosecution witnesses, renders deficient representation." (In re Edward S. (2009) 173 Cal.App.4th 387, 407.) "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." (Strickland, at p. 691.)
To demonstrate prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
1. Director
Trial counsel's decision not to interview director was not deficient performance. Trial counsel was provided with a video-recorded statement by director that was consistent with director's trial testimony. This video allowed trial counsel to anticipate director's testimony and to evaluate her credibility by assessing her demeanor. (See People v. McDermott (2002) 28 Cal.4th 946, 992 ["Experienced counsel may . . . choose to rely on an investigator's report or other form of written statements describing the witnesses' anticipated testimony"].) And the record shows trial counsel was prepared for trial. Trial counsel elicited favorable testimony from director that she did not trust victim, and the People dismissed two counts due to insufficient evidence.
It is also not reasonably probable that defendant would have obtained a more favorable outcome had director testified that defendant would not have had enough time to perpetrate the offenses. Director already told the jury effectively the same by stating that she was "always looking out everywhere" during program hours and never stayed at one place for too long, but never saw defendant alone with victim. Adding her opinion as to whether defendant could have had enough time to commit the crimes does not change the substance of director's trial testimony.
Director's other post-trial statements also added nothing new to the evidence at trial. Her recollection that victim's brother was also in the classroom with victim and defendant when victim's mother found them and that victim denied anything had happened was the same as victim's and his mother's trial testimonies; and her statements about access to the classrooms and the teachers' lounge were consistent with her and defendant's trial testimonies. The jury heard the same evidence at trial and made its decision.
Defendant's reliance on Riley v. Payne (9th Cir. 2003) 352 F.3d 1313 and Hart v. Gomez (9th Cir. 1999) 174 F.3d 1067 is misplaced. In Riley, counsel was found ineffective for failing to interview the only witness whose testimony would have bolstered the defendant's self-defense claim (Riley, at pp. 1317-1319, 1321); in Hart, counsel was found ineffective for failing to introduce documentary evidence that would have corroborated and bolstered the credibility of a key defense witness's testimony (Hart, at pp. 1068-1069, 1073.) Here, on the other hand, trial counsel had the opportunity to review director's anticipated testimony before trial and prepared accordingly. And director's post-trial statements do not provide any new information that would have undermined our confidence in the jury verdict. Thus, trial counsel was not ineffective for failing to interview director.
2. Character Witnesses
Trial counsel was also not ineffective in preparing the character witnesses. The character witnesses testified that defendant is a trustworthy and honest person. Their posttrial declarations summarily claimed they could have provided more information about defendant's trustworthiness had trial counsel properly prepared them. But none stated they had new, potentially exculpatory evidence that they could have presented to the jury, nor does defendant make this argument on appeal. To the extent one character witness claimed she could have explained the operation of an after-school program to the jury, director had already done so as to the program at issue. Without new exculpatory evidence, the character witnesses' declarations are insufficient to establish ineffective assistance of counsel. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [claims that counsel should have further questioned a witness" 'must be supported by declarations . . . establishing both the substance of the omitted evidence and its likelihood for exonerating the accused' "].)
Defendant also cites a posttrial declaration by his mother alleging that trial counsel did not contact any character witnesses she recommended. But he provides no legal analysis as to why this failure constituted ineffective assistance of counsel. We do not consider undeveloped claims. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
3. Abrams
Defendant claims trial counsel "abandoned the opportunity to challenge and refute the prosecution's expert testimony about [the syndrome]." Not so. The record reflects that during direct examination, in response to trial counsel's questions, Abrams testified in depth about the scientific criticism of the syndrome and pointed out that even its author had renounced the theory.
II
The California Racial Justice Act
Defendant contends the trial court erred in denying his motion for discovery under the California Racial Justice Act (§ 745) (the Act) because he provided sufficient statistics to establish a plausible violation of the Act. We disagree.
A. Additional Background
After trial, defendant filed a motion for discovery under the Act, alleging that racial bias motivated the investigation, charging, and prosecution of his case.
The motion included San Joaquin County District Attorney's 2020 Data Report (the report) that the motion claimed to show that "[f]or every 1000 residents, cases involving Black suspects are referred four times more often than cases involving White suspects," "[c]harges are filed four times more often against Black defendants [than] White [d]efendants per 1000 population," and even though only 7 percent of the population of San Joaquin County was African-American, 24 percent of all cases referred for criminal prosecution involved African-American suspects and 22 percent of all criminal cases where charges were filed involved African-American defendants.
The motion further alleged that defendant received ineffective assistance of counsel, and that he was convicted, despite his lack of criminal record and stellar reputation in his community, based solely on the recollection of victim who had dubious credibility.
The trial court denied the motion on the ground that defendant failed to provide racially motivated facts particular to his case under Young v. Superior Court (2022) 79 Cal.App.5th 138 (Young).
B. Analysis
The Act provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a).) At the time the trial court denied the motion and as relevant here, a violation of section 745, subdivision (a) could be established if the defendant proved by a preponderance of evidence that he "was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant's race, ethnicity, or national origin in the county where the convictions were sought or obtained." (Former § 745, subd. (a)(3).)
Subsequent amendments to section 745 are irrelevant to this case. (Stats. 2022, ch. 739, § 2; Stats. 2023, ch. 311, § 6; Stats. 2023, ch. 464, § 1.)
A defendant may seek discovery of evidence relevant to a potential violation of section 745, subdivision (a), and the trial court must order the records to be released "[u]pon a showing of good cause." (§ 745, subd. (d).) To establish "good cause," "a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the [Act] 'could or might have occurred' in his case." (Young, supra, 79 Cal.App.5th at p. 159.) Young declined to precondition discovery upon a defendant's showing that defendants of a different race were treated more leniently than he was because "[p]reventing a defendant from obtaining information about charging decisions without first presenting that same evidence in a discovery motion is the type of a Catch-22 the Act was designed to eliminate." (Young, at p. 162.)
Nevertheless, the plausible justification standard under Young must still be based on "specific facts." (People v. Garcia (2022) 85 Cal.App.5th 290, 297.) For example, the defendant in Young established good cause for discovery by alleging "(1) he is [B]lack, (2) studies in California have shown black drivers are more likely to be stopped by police than any other racial group, and (3) the circumstances of the traffic stop leading to [the defendant's] arrest suggest the traffic stop here was racially motivated." (Young, supra, 79 Cal.App.5th at p. 161.) Young noted "[t]he allegations of a racially motivated stop appear to be specific" and "these circumstances, if true, may amount to what is commonly known as racial profiling . . . cognizable under . . . [the Act]." (Young, at pp. 161-162.)
We review a discovery order for abuse of discretion. (Young, supra, 79 Cal.App.5th at p. 156.)
Here, the trial court acted within its discretion in denying defendant's motion. Defendant contends his guilty verdict was based on the testimony of an uncredible witness and he received ineffective assistance of counsel at trial. But he makes no allegation, let alone specific allegation, of explicit or implicit racial bias by his counsel or the jury. Similarly, although defendant alleges in his reply that the detectives coached victim to conduct a suggestive pretext phone call without first verifying victim's story, defendant does not contend the investigation involved racial profiling. And defendant cites no facts that show racial bias by the district attorney in the charging or prosecution of his case. Therefore, defendant has stated no specific facts to establish a plausible factual foundation under Young that a violation of the Act might have occurred in his case.
We need not address defendant's contention that the trial court's analysis was incorrect under the Act because under ordinary appellate review, we consider only whether the result was correct. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4.)
DISPOSITION
The judgment is affirmed.
We concur: RENNER, Acting P. J., BOULWARE ERIE, J.