Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 05F10764
MORRISON, J.
A jury convicted defendant Luke Howard Logan on three counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court sentenced defendant to 12 years in prison.
On appeal, defendant contends trial counsel was ineffective and his upper term sentence violates the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We reject the contentions and affirm.
BACKGROUND
S.C. is a 10-year-old girl. She lives with her father, stepmother, and three brothers. Tracey L., the mother of S.C. and Z., is defendant’s wife and lived with him in an apartment in Sacramento.
S.C. and Z. regularly visited their mother at the apartment on weekends. The apartment had two bedrooms, a bathroom, a living room, and a kitchen. Defendant and Tracey slept in one bedroom, while S.C. and Z. would share another. According to the children, Z. would sleep on the top bunk and S.C. slept on the bottom.
Defendant molested S.C. several times during her visits to her mother’s apartment. According to S.C.’s testimony, defendant would go into her bedroom while everyone was asleep, take her by the wrists, and say “Come here.” He would then lead her to the living room and take her to the couch, where defendant would lick his finger and put it under her shorts, touching the top of her “crotch.” Defendant would also “flip” S.C. over and put his finger under her shorts, touching her “butt.” The molestations also took place while she was in the third grade, but had stopped by the time S.C. reached the fourth grade.
While not remembering exactly how often this happened, S.C. recalled a specific incident taking place when she was in the second grade. Defendant “grabbed me by the wrist and he put me on the couch, and he just said ‘lay down,’ and he licked his finger and he started going under my clothes.” S.C. was lying on the couch with defendant by her feet when this happened.
Defendant did nothing when S.C. told him to stop, and when she got up he pulled her back and “started doing it again.” S.C. ran back to her bedroom when defendant went to the kitchen, ending the incident.
Another molestation took place in defendant’s bedroom. S.C. went in defendant’s bedroom to see what was happening, and defendant, who was lying on top of the bed, told her “to come here.” She went over, and defendant had S.C. straddle his stomach and move herself down until she reached his crotch. Defendant said “go down”, pushing S.C.’s stomach with both hands until she reached his crotch and felt “[a] bump” there. He let S.C. leave when she asked.
Defendant would also sit behind S.C. while she was on the couch, wrapping his legs around hers. Another time, he showed S.C. a picture of a topless girl on a digital camera while they were in his bedroom. In addition, defendant would show S.C. “bad movies” that he kept in a box under his bed. He did this to her many times, and once made her brother watch one of the movies.
S.C. first told her mother Tracey about the molestations. One day, just before she was going to drive S.C. and Z. from their father’s house to the apartment, Tracey asked Sherry if defendant was touching her. S.C. said yes, and her mother “just got mad and went in the car” and drove them to the apartment. After she told her mother, S.C. stayed in the apartment with her mother and defendant for the rest of the weekend before telling her stepmother when she returned home.
S.C. had never talked to her mother or her stepmother about good and bad touches. She told her brother Z. about being molested by defendant after she told her mother. S.C. also testified to telling her brother about the incident where she sat on defendant’s crotch just after it happened.
Defense counsel asked S.C. about a girl named B. Over the prosecution’s objection, defense counsel was allowed to question S.C. regarding allegations that B. had been molested by defendant. Counsel informed the court his theory was the testimony would tend to show S.C.’s accusations against defendant were false, as the idea of him as a molester was planted in her head by the accusations concerning B.
According to S.C., B. was a 15-year-old girl who had stayed at her mother’s apartment for more than one day, sleeping in the living room. S.C.’s mom told her B. was defendant’s daughter. B. told S.C. she had been molested, but not by whom. According to S.C., while conversing with her mom about whether she had been molested, her mother told S.C. defendant had molested his other daughter B. After this statement, the court admonished the jury this was not admitted for the truth of the matter asserted, but “It’s being offered to show something else later down the road.”
Z. testified and stated he saw S.C. go into defendant’s bedroom probably more than five times. Once he went into defendant’s bedroom when S.C. was there with defendant, and defendant told him to get out and close the door. The boy also remembered defendant calling S.C. into the bedroom, S.C. going into the bedroom, and the door “would always stay closed” while they were in the bedroom. Once, after coming out of defendant’s bedroom, S.C. told Z. defendant had been touching her private parts. According to Z., S.C. was “afraid and like nervous, kind of” when she said this to him.
Defendant’s friend Shannon, in the presence of defendant, once showed Z. a movie of women taking off their shirts and fighting. B. stayed there before S.C. told him she had been molested.
Z.’s mother never said anything to him about S.C. being molested, and she never discussed good and bad touches with him. S.C. told her mother about the touching while they were outside their mother’s car and getting ready to leave defendant’s apartment. Their mother responded by saying she would make defendant get rid of the magazines, pictures, and “other stuff.”
Z. admitted telling an officer that defendant “is a lazy head and I hate lazy heads” because he “would always just lay in bed and stuff.” The children’s mother testified that defendant was on disability at the time because of his lower back.
A physical examination of S.C. uncovered no signs of sexual abuse. However, studies have shown that molestation often does not leave any physical findings.
S.C. was interviewed on videotape at the Multi-Disciplinary Interview Center (MDIC). In the interview, S.C. related the same general types of molestation as stated in her testimony. Defendant would take S.C. from her bed to the living room couch, where he would lick his finger and put it under her clothes, touching her “crotch” and turning her over to touch her “butt.” She would try to pull away, but sometimes defendant would not let her. Defendant did this five or six times, starting when she was six or seven and stopping when she turned nine. Her grandmother and grandfather were sleeping at the apartment with them the last time defendant molested her.
Another time, when her brother was asleep, defendant pulled S.C. from the living room to his bedroom, saying “Come here.” He had her straddle his stomach while he was lying on his back. Defendant, who was wearing blue shorts and white pants, had S.C. slide down him until she reached “his thing.” When she reached his crotch, which felt “hard” and like “[a] bump”, S.C. got off of defendant and left.
While taking S.C. to her house, her mother asked if defendant was touching her, and she replied yes. Her mom asked, “Has Luke been touching you,” telling S.C. she was “curious.” She told S.C. defendant had also done this to his real daughter B. Her mother then talked to defendant about it and he stopped.
After he stopped, defendant would call S.C. into his room and told her to watch “bad movies” of “naked people doing stuff to each other.” He also had Z. see movies of naked girls fighting because defendant’s friend wanted Z. to see it.
The children’s mother testified for the defense. She discussed good and bad touches with her children when Z. was six and S.C. was four, and every so often would ask them if they had been subjected to bad touches. One Friday in August, as she was picking the children up to take to her apartment for a weekend visit, S.C. said defendant had given bad touches.
Tracey had asked her children about good and bad touches because B. had recently accused defendant of improperly touching her. B. was the niece of Keith and Lori Allen, friends of defendant and Tracey who lived in defendant’s apartment complex. Lori asked Tracey if B. could stay with them for the weekend, and B. ended up staying with them for a few weeks until asked to leave.
Later, after S.C.’s accusation, Tracey determined B.’s claim “turned out to be a lie.” However, she admitted the Allens were so upset over the claim that they attacked defendant in the parking lot.
S.C.’s accusation against defendant was unexpected. After S.C. told her about defendant’s touches, Tracey’s first instinct was to take the children back to their father, but she instead took the children to her apartment. Since she had to go to work, Tracey left S.C. and Z. with defendant, although she told Z. to protect his sister. When she got back from work, Tracey asked S.C. if she felt safe and she said yes.
Tracey claimed her children would switch who slept on the top or bottom bunks. She also noted several inconsistencies in S.C.’s story. S.C. never used the word “crotch”, but used the term “private” for genitals. While S.C.’s grandmother visited the apartment from time to time, she never spent the night and S.C.’s grandfather was dead. The digital camera S.C. referred to belonged to defendant’s friend Shannon, who took it when he left. Defendant could not have wrapped his legs around S.C. because of his bad back. Also, he did not own any plain white shirts.
Ultimately, Tracey did not believe her daughter. She also admitted telling an officer S.C. would not lie about this and she believed what S.C. had said.
DISCUSSION
I
Defendant contends trial counsel’s questioning about B. during the cross-examination of S.C. was ineffective assistance of counsel. We disagree, as we are unwilling to second-guess trial counsel on a question of trial tactics.
The burden of proving a claim of ineffective assistance of counsel is on defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) To meet this burden, defendant must prove two things. First, he must show that his counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show the deficient representation subjected the defense to prejudice, i.e., that there is a reasonable probability that but for counsel’s failings, the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693, 698.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
“‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citations .] “[W]e accord great deference to counsel’s tactical decisions” [ citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts.” [Citation.]’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Defense counsel wanted to question S.C. about B. to show the “effect on the witness” of B.’s accusation. On voir dire, S.C. testified B. told her she had been molested. But she was not aware of any accusations that defendant had molested B. However, S.C.’s mother told her about B. having been molested when she asked S.C. if defendant had touched her. According to S.C., her mother “asked me if he [touched] me, then she said that it was happening to [B.] too.”
When asked by the court how he intended to use the testimony, counsel asserted if the jury is to find his client not guilty there must be a reason S.C. accused defendant. Counsel stated the mother will come forward and say she had previously discussed good and bad touches with S.C., and in every prior discussion her daughter said no one had made bad touches. He wanted the jury to know S.C. said everything was fine until she heard this accusation from her mother. The prosecutor objected, arguing this evidence would confuse the jury, and would be prejudicial as defendant would argue S.C.’s accusations were planted in her head because of what happened to B.
The court’s primary concern was with Evidence Code section 352 issues. However, since the testimony could conceivably go to a credibility defense, the court allowed the questioning.
The jury was called in, and S.C. continued to testify. B. was 15 years old and had slept in the living room of the apartment. They were friends, and B. had told her she had been molested, but did not say by whom. Her mother talked to S.C. about B. being molested at the time S.C. said defendant had molested her.
Defense counsel asked S.C. if, during the conversation about being molested by defendant, “Did mom at that time tell you he did it to his other daughter B.?” S.C. answered yes. The trial court then admonished the jury this testimony was not being offered for the truth of the matter, but “to show something else later down the road.”
Defendant argues trial counsel’s decision to bring up the accusations from B. introduced highly damaging other crimes evidence against defendant even though there was no chance the subject matter could help defendant’s case. While recognizing that defense counsel intended for the evidence to “explain to the jury why S.C. might falsely accuse appellant of molesting her,” defendant argues this was impossible because counsel “ascertained in the Evidence Code section 402 hearing that B. had not even told S.C. that she had been molested by appellant.”
In order to be plausible, counsel’s tactic did not require B. to have told S.C. she had been molested by her father. Rather, his theory was that her claims of being molested were planted in her head by B.’s initial unspecified complaint about being molested and by her mother’s leading questions regarding B. being molested by defendant.
This theory was consistent with S.C.’s MDIC interview. In the interview, S.C. said her mother had asked her “Has [defendant] been touching you?” S.C. responded “Why?” and her mother replied “I’m just curious,” and S.C. said “Yeah, sometimes.” S.C. also told the interviewer her mother had said defendant did this to his real daughter B.
These facts, when combined with S.C.’s testimony that she never liked defendant, renders counsel’s theory plausible in the context of the facts available to him at the time. Events subsequently undercut this theory--on redirect S.C. declared B. did not put the idea of defendant molesting her in her head, and Tracey was not able to remember what she asked S.C. before her daughter accused defendant. However, we can not judge counsel’s performance on what happened after the fact, but “‘under the circumstances as they stood the time counsel acted or failed to act.’ [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
Defense counsel had a difficult task. S.C. had just given a detailed, articulate, and internally consistent account of defendant having molested her on multiple occasions. Her testimony was also consistent with the videotaped MDIC interview which counsel knew would be played to the jury. The police report indicated that her brother Z. said S.C. had told him about defendant molesting her. Given the strong prosecution case, it was reasonable for defense counsel to seek some theory upon which the jury could base a finding of reasonable doubt. Explaining why S.C. made her accusations against defendant was crucial to making a case for reasonable doubt.
Counsel’s tactic came at a cost. It opened the case to allow testimony about B.’s accusation against defendant and the Allen’s response to their niece’s claim. While Tracy testified B.’s claim was “a lie,” we can not conclude counsel’s tactic was entirely beneficial to the defense.
Whatever the damage done to the defense by subsequent events, counsel’s actions were a reasonable tactical choice at the time. Given the strong presumption that such tactical decisions do not render ineffective assistance, trial counsel was not ineffective.
Even if we were to conclude counsel was ineffective, his tactic did not prejudice defendant. The prosecution’s case was strong, and we are convinced beyond a reasonable doubt defendant was convicted on the strength of the prosecution’s case rather than the evidence concerning B.’s claims. Defendant would not have received a more favorable result had counsel not initiated the subject of B.’s accusation. Accordingly, defense counsel was not ineffective.
II
In his opening brief, defendant asserted his upper term sentence on one count violated the rule of Blakely and Cunningham. The court based the upper term sentence on, among other reasons, that “defendant’s prior convictions as an adult are numerous and of increasing seriousness,” namely “a horrendous past record of misdemeanor convictions,” and he was on informal probation at the time of the offenses.
After defendant’s opening brief was filed, the California Supreme Court ruled that an upper term sentence was valid under Blakely and Cunningham so “long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816.) The Supreme Court also held numerous and increasingly serious prior convictions is a legally sufficient aggravating factor which exempts an upper term sentence from the rule of Blakely. (Black, at pp. 819-820.)
As defendant concedes in his reply brief, we are bound by the California Supreme Court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) His claim is preserved for further state or federal review.
DISPOSITION
The judgment is affirmed.
I concur: BLEASE, Acting P.J.,
I concur in the result: ROBIE, J.