Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P0CRF0372
ROBIE, J.
In a bench trial, defendant Patrick Michael Knost was convicted of one count of sexual penetration of an unconscious victim (a felony) and one count of sexual battery (a misdemeanor). On appeal, he contends his felony conviction must be reversed because there was no substantial evidence the victim was unconscious at the time of penetration. He also contends that conviction must be reversed because his trial counsel was ineffective in failing to make a motion for acquittal based on the lack of evidence in the prosecution’s case-in-chief that the victim was unconscious and in eliciting and failing to object to evidence in the defense case that the victim was unconscious. Finding no merit in defendant’s arguments, we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In September 2004, defendant and Donna were engaged to be married but their almost three-year relationship was faltering. They broke off their engagement early in the month, and Donna asked defendant to move out of her home, where the couple had been living. Defendant continued to stay at Donna’s home for the next couple of weeks but they stopped having sex after defendant told her he had been with prostitutes. A medical doctor, defendant had acted as Donna’s “treating physician,” administering lab tests, Pap smears, and cortisone shots.
On a mid-September evening, while both were at home, Donna asked defendant to help with the intense pain in her elbow. Defendant had given her a cortisone shot for elbow pain a few weeks earlier and he did so again. She went to bed not long after but woke up in the middle of the night from “total pain” in her elbow. Donna asked defendant to give her “something for the pain.” Defendant gave her a second shot, this time an injection of the sedative hydroxyzine, which he told her was “quick-acting and short-acting.” She quickly fell asleep. The next morning Donna found six Polaroid photographs of defendant’s hand spreading open her vagina.
In a September 2005 information the People charged defendant with one count of sexual penetration of an unconscious victim (Pen. Code, § 289, subd. (d)) and one count of sexual battery. The People contended the “penetration” occurred when defendant used his hand to spread open Donna’s vagina to take pictures of her.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant and the People agreed to a June 2007 bench trial. At trial, the People called Donna, two coworkers she had spoken to about the incident, and Sergeant David Baker, the investigating officer, as witnesses. The People also introduced the six Polaroid photographs, a recording of a “pretext” phone call between Donna and defendant under the direction of Sergeant Baker, and a recording of an interview between defendant and Sergeant Baker.
At trial, Donna described what happened that night as follows: “Next thing I remember was [defendant] pulling off the covers on me and shoving his hands in my crotch and pulling on my crotch, and I couldn’t even move my body. I was completely drugged. I couldn’t even lift my head. And I just remember saying what are you doing, knock it off, knock it off. And I -- in the distance remembered hearing something that I thought was a Polaroid camera. [¶] . . . [¶] I remember him having sex with me. And me just saying -- I couldn’t move. I couldn’t respond. I couldn’t lift an arm. I couldn’t lift a head. I was just telling him to knock it off, what are you doing. That’s all I remember saying. And just being, like, a limp person laying there.”
Before trial, however, Donna said she was unconscious when defendant took the photographs. The morning after the incident, she called a coworker and said she would be late because defendant had drugged her. In a call to the same coworker later that morning, Donna said defendant had taken pictures of her “without her knowledge” and “had sex with her and she was unconscious.” In conversations with another coworker, Donna described how defendant had taken pictures of her and had sex with her when she could not move, could not speak, and “did not have any control over anything that was happening.”
After reporting the incident to the police, Donna made a “pretext” phone call to defendant under the direction of Sergeant Baker. Defendant never contradicted Donna when she talked to him about how she “was all drugged up from that injection” when he took pictures and had sex with her, nor did he contradict her when she said the injection made her “so wasted” and “totally obliviated.” Defendant said “Mm-hmm” when Donna explained that she did not “even remember having sex” and only “remember[ed] . . . a Polaroid camera going off.”
Sergeant Baker’s interview with defendant about the incident was introduced in the People’s case-in-chief. When Sergeant Baker asked how the medication defendant injected Donna with “help[s],” defendant responded, “It puts them to sleep.” When Sergeant Baker confronted him about the allegation that he had intercourse with her, defendant responded, “How’d she [know] if she had intercourse with me? No, she didn’t, she was out of it.” At one point, Sergeant Baker said, “[s]he was unconscious and you went in you . . . saw her there, these frustrations that you’ve been having with your personal life, your sexual frustrations, pent up energy . . . the issues with her, okay.” Defendant replied, “That’s why I took pictures.”
Defendant testified in his own defense. During direct examination, defense counsel asked defendant if Donna was conscious or unconscious when he took the photographs. Defendant said Donna was unconscious. He also testified that he did not take the photographs for his own sexual gratification, but because, he claimed, she was “frustrated” that she had been exposing herself to other men. He claimed his purpose was “to prevent her from revealing herself in the future.” He also testified, however, that he later decided he did not want the pictures, and he gave them to Donna the next morning when they woke up.
When cross-examined, defendant acknowledged he had given Donna an injection “that rendered her unconscious.” When the People asked if he knew Donna was unconscious when he took the pictures, defendant replied that he knew she was unconscious “[o]r asleep.” When asked to explain how he thought the photographs would prevent Donna from revealing herself to other men in the future, defendant responded, “My thinking was if she knew I had these pictures, then she would not -- I could tell her that, you know, if you were to expose yourself again, you could use these and give them to guys. Why don’t you just do that.”
The trial court found defendant guilty on both counts and sentenced him to three years’ probation.
DISCUSSION
I
Defendant Was Convicted On Sufficient Evidence
Defendant contends his conviction of sexual penetration of an unconscious victim was based on insufficient evidence because there was no substantial evidence that Donna was unconscious at the time of sexual penetration. We disagree.
On appeal we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant’s challenge to the sufficiency of the evidence that Donna was unconscious at the time he photographed her rests on his contention that “[t]he only reliable witness on that issue” was Donna herself, who “testified repeatedly that she was conscious at the time of the penetration and was conscious of the nature of that act.” But Donna’s trial testimony was not the only evidence the trial court received on this point.
First, Donna’s coworker testified that the morning after the incident Donna said defendant had taken pictures of her “without her knowledge” and “had sex with her and she was unconscious.” (See Evid. Code, § 1235 [prior inconsistent statement admissible over hearsay objection]; People v. Guerra (2006) 37 Cal.4th 1067, 1144 [“Prior inconsistent statements are admissible . . . to prove their substance as well as to impeach the declarant”].)
Second, during the recorded phone conversation Donna had with defendant, she said she “was all drugged up” from the injection he gave her, such that she was “wasted” and “totally obliviated.”
Third, in his interview with Sergeant Baker defendant admitted he had given Donna an injection to put her to sleep and that she “was out of it” when he photographed her genitalia. Moreover, when Baker told defendant Donna was “unconscious and . . . you saw her there . . . your sexual frustrations . . . the issues with her, okay,” defendant did not contradict the sergeant but instead replied “[t]hat’s why I took pictures.”
Fourth, defendant himself unequivocally testified that Donna was “unconscious” when he took the pictures.
The question raised by defendant’s argument is whether the evidence that Donna was unconscious at the time of penetration -- including her statement to her coworker the day after the incident, her statements to defendant during the “pretext” telephone call, defendant’s statements and his adoptive admission in his interview with Sergeant Baker, and defendant’s own direct testimony at trial -- can be deemed “substantial” in light of Donna’s trial testimony that she was conscious (albeit unable to move) during the incident. The answer to that question is “yes,” because in reviewing the sufficiency of the evidence, “We resolve neither credibility issues nor evidentiary conflicts . . . .” (People v. Maury (2003) 30 Cal.4th 342, 403.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (Ibid.)
Thus, it is not for us to decide whether Donna’s trial testimony was more credible or reliable than the other evidence before the trial court on the issue of whether she was conscious. The trial court reasonably could have determined that what Donna told her coworker the day after the incident and her other pretrial statements were more accurate than what she testified to nearly three years later, particularly given that defendant’s statement to Sergeant Baker and his testimony at trial supported Donna’s initial version of events. Indeed, the trial court reasonably could have concluded that when Donna testified at trial, she exaggerated her recollection of the incident, with the misguided belief that doing so would bolster the case against defendant and ensure that he would be found guilty.
Moreover, we are not entitled to reject defendant’s trial testimony as a basis for his conviction simply because he belatedly asserts on appeal that his testimony as to Donna’s state of consciousness was “inadmissible and unreliable.” Given that defendant is a medical doctor, and that he offered the testimony without objection, the trial court was entitled to credit his assessment of Donna’s unconsciousness, and on appeal we cannot say that defendant’s testimony in this regard was not reasonable, credible, and of solid value.
Although a lay witness generally “may not give an opinion about another’s state of mind,” “a witness may testify about objective behavior and describe behavior as being consistent with a state of mind.” (People v. Chatman (2006) 38 Cal.4th 344, 397.) Even if we assume for the sake of argument that consciousness is a “state of mind” for purposes of this rule (as defendant suggests) and that defendant was nothing more than an ordinary lay witness, the trial court could have understood defendant’s testimony as merely communicating his assessment that Donna’s behavior was consistent with unconsciousness. Viewed in this light, any objection to defendant’s testimony on this basis would have been futile.
In summary, there was sufficient evidence to support the trial court’s finding that Donna was unconscious at the time of the penetration. Accordingly, defendant’s first challenge to his felony conviction fails.
II
Defendant Fails To Show He Received Ineffective Assistance Of Counsel At Trial
Defendant contends he received ineffective assistance of counsel at trial because his attorney failed to move for acquittal at the close of the People’s case, elicited damaging and inadmissible testimony from defendant, and failed to object when the People continued to elicit such testimony on cross-examination. We disagree.
“The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. For that reason, the [United States Supreme] Court has recognized that ‘the right to counsel is the right to the effective assistance of counsel.’” (Strickland v. Washington (1984) 466 U.S. 668, 685-686 [80 L.Ed.2d 674, 692], italics added.) This right also emanates from article I, section 15 of the California Constitution. (People v. Pope (1979) 23 Cal.3d 412, 422.)
“To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Thus, when a defendant fails “‘to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.’” (People v. Weaver (2001) 26 Cal.4th 876, 961.)
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel . . . and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) On appeal, ineffective assistance of counsel merits reversal only if there is no rational tactical purpose for counsel’s act or omission. (Ibid.) With these general principles in mind we turn to defendant’s contentions.
A
Failure To Make Section 1118 Motion
Defendant first contends he received ineffective assistance of counsel because his counsel did not make a section 1118 motion for acquittal at the close of the People’s case-in-chief.
A motion for acquittal should be granted when the People fail to introduce substantial evidence -- “evidence that is credible and of solid value” -- to support a rational trier of fact finding the elements of the charged crimes proved beyond a reasonable doubt. (People v. Guardado (1995) 40 Cal.App.4th 757, 760-761.)
Defendant contends “the only evidence” the People presented on the element that Donna was unconscious at the time of penetration was her own testimony, which actually supported the conclusion she was conscious at that time. Therefore, defendant asserts, he received ineffective assistance of counsel because the People failed to prove that Donna was unconscious beyond a reasonable doubt, a trial judge would have granted a motion for acquittal, and there was no rational tactical purpose for defendant’s counsel not to make the motion.
We disagree because, as we have explained already, Donna’s testimony was not the only evidence on this point in the People’s case-in-chief. The People also introduced evidence of Donna’s statement to her coworker the day after the incident that she was “unconscious,” her other pretrial statements that she was “all drugged up,” “wasted,” and “totally obliviated,” and evidence of defendant’s statements and adoptive admission to Sergeant Baker that Donna was unconscious when he took the pictures. This evidence was substantial evidence of the “unconscious” element of the crime. Therefore, had defendant’s counsel made a motion for acquittal at the close of the People’s case-in-chief, there would not have been a reasonable probability of a more favorable determination. Accordingly, there was no ineffective assistance of counsel for failure to make a section 1118 motion. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
Moreover, the prosecutor simply could have moved to amend the information to also charge a violation of section 289, subdivision (e), which provides: “[a]ny person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”
B
Elicitation Of And Failure To Object To Inadmissible Testimony
Defendant next contends that “[d]efense counsel compounded his failure to make a motion for acquittal by eliciting inadmissible, prejudicial testimony from his client during direct examination in the defense case and in failing to object to the [People]’s eliciting similar testimony on cross-examination.” Defendant asserts that his testimony regarding whether Donna was unconscious was inadmissible because he lacked “personal knowledge” of her state of mind and was not qualified to give opinion testimony. Thus, he argues, no reasonably competent attorney would have elicited such testimony and also failed to object when the People elicited it, and these acts and omissions were prejudicial because the trial court expressly relied on defendant’s testimony in finding Donna was unconscious at the time of penetration.
We conclude defendant has failed to show ineffective assistance of counsel because the record establishes that his trial counsel had a tactical reason for offering (and not objecting to) evidence that Donna was unconscious at the time defendant photographed her.
As we have noted, by not refuting Sergeant Baker’s assertion in his interview with defendant that Donna was unconscious when he took the photographs, defendant effectively admitted she was. Perhaps because of this adoptive admission -- and/or perhaps because of his expectation that Donna would testify at trial that she was unconscious -- it appears defendant’s trial counsel decided to try to avoid a conviction primarily by challenging the evidence that defendant acted for the requisite purpose of sexual arousal, gratification, or abuse, which applied to both crimes with which defendant was charged. Specifically, counsel argued that when defendant took the photographs of Donna’s genitalia, he did not act for the purpose of “sexual arousal” or “sexual gratification,” and he also did not act for the purpose of “sexual abuse” -- which includes “the purpose of insulting, humiliating, or intimidating” the victim (In re Shannon T. (2006) 144 Cal.App.4th 618, 622) -- because she was unconscious when he took the photographs, and he gave the pictures to her before he tried to make any use of them. Thus, the fact that Donna was unconscious at the time of the incident was critical to counsel’s trial strategy.
By definition, felony “sexual penetration” requires penetration “for the purpose of sexual arousal, gratification, or abuse.” (§ 289, subd. (k)(1).) Likewise, misdemeanor sexual battery requires “the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e)(1).)
At oral argument, defendant’s appellate counsel appeared to suggest that trial counsel’s strategy was unreasonable because felony sexual penetration does not require that the perpetrator act with the purpose of sexual arousal, gratification, or abuse, and thus by soliciting evidence that Donna was unconscious to defeat the charge of misdemeanor sexual battery, trial counsel “sew[ed] up the fact that she was unconscious” and thereby exposed defendant to conviction of the felony sexual penetration charge. This argument fails because, as we have noted, acting with the purpose of sexual arousal, gratification, or abuse is an element of felony sexual penetration. Thus, counsel’s trial strategy applied equally to the felony and misdemeanor counts.
Because defendant has failed to show that his trial counsel’s tactical decision in this regard was unreasonable, defendant has failed to show he received ineffective assistance of counsel at trial.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.
Section 289, subdivision (d) provides in relevant part: “[a]ny person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (1) Was unconscious or asleep. [¶] (2) Was not aware, knowing, perceiving or cognizant that the act occurred.”
On appeal, defendant does not raise any issue about the sufficiency of the evidence of this element of the crimes of which he was convicted.