Opinion
F060705 Super. Ct. No. 8080
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM TERRY MACDONALD, Defendant and Appellant.
David Mugridge for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. Carlos P. Baker, Jr., Judge. (Retired judge of the Justice Court for the former Corcoran Judicial District of Kings County, assigned by the Chief Justice pursuant to Art. VI, § 6 of the Cal. Const.)
David Mugridge for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Found guilty by a jury of committing 15 lewd or lascivious acts against three young children, William Terry MacDonald argues that ineffective assistance of counsel, "judicial complacency and incompetence," and prosecutorial misconduct denied him a fair trial. We affirm the judgment.
BACKGROUND
On April 8, 2010, the district attorney filed a second amended information that charged MacDonald with committing 15 lewd or lascivious acts with three children under the age of 14 with the intent to arouse, appeal to, or gratify his or the children's lust, passions, or sexual desires (Pen. Code, § 288, subd. (a)), that alleged his eligibility for 15-to-life indeterminate terms due to commission of some of the offenses against more than one victim (§ 667.61, subds. (b), (c)(8), (e)(4)), that alleged his ineligibility for probation due to commission of some of the offenses against more than one victim (§ 1203.066, subd. (a)(7)), and that alleged his ineligibility for probation due to substantial sexual conduct with one of the victims (§ 1203.066, subd. (a)(8)).
Later statutory references are to the Penal Code unless otherwise noted.
On April 29, 2010, a jury found MacDonald guilty as charged on all of the counts and found all of the allegations true. On July 23, 2010, the court imposed an aggregate term of 112 years to life in prison consisting of six 15-to-life indeterminate terms (counts 7, 10, 12, 13, 14, & 15) consecutive to one six-year determinate (middle) term (count 8) and consecutive to eight two-year determinate (one-third the middle) terms on counts 1, 2, 3, 4, 5, 6, 9, and 11.
DISCUSSION
1. Assistance of Counsel
MacDonald argues that ineffective assistance of counsel denied him a fair trial. The Attorney General argues the contrary.
The right to counsel protects the due process right to a fair trial by guaranteeing "access to counsel's skill and knowledge" and by ensuring an "'ample opportunity to meet the case of the prosecution.'" (Strickland v. Washington (1984) 466 U.S. 668, 684- 686 (Strickland).)To establish ineffective assistance of counsel, the defendant has the burden of showing that counsel's performance "fell below an objective standard of reasonableness" and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)To establish prejudice, the defendant must make a showing of a "reasonable probability" "sufficient to undermine confidence in the outcome" that but for counsel's performance "the result of the proceeding would have been different." (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate a claim of ineffective assistance solely on the issue of prejudice without evaluating counsel's performance. (Strickland, supra, at p. 697.) We do so here.
"Here," MacDonald argues, "the record illustrates that defense counsel acted as a mere observer throughout the vast majority of the trial. Indicative of counsel's observer status was his near abject failure to object to improper questioning by the prosecution." "By way of specific example," he quotes the "relevant part" of Evidence Code section 767 and, with citations to the record, perfunctorily claims that his attorney "ignored and/or failed to object to myriad leading questions," "to myriad questions that had already been asked and answered," "to myriad questions where the prosecution was testifying," and "to many compound questions." He claims, too, that his attorney "failed to object to many questions asked by the prosecution during her cross examination that were beyond the scope of defense direct examination," "to questions which had no relevance to issues presented," and "to myriad prosecution questions that called for hearsay." Finally, he claims that his attorney "failed to raise objections to multiple questions by the prosecution that called for speculation." Apart from quoting a statute, however, he cites no authority and makes no attempt to articulate any theory of prejudice to establish how the omissions of which he complains show a "reasonable probability" "sufficient to undermine confidence in the outcome" that but for counsel's performance "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
"(a) Except under special circumstances where the interests of justice otherwise require: [¶] (1) A leading question may not be asked of a witness on direct or redirect examination. [¶] (2) A leading question may be asked of a witness on cross-examination or recross-examination." (Evid. Code, § 767.)
The rule is well settled that an "appellant cannot prevail on a claim of error if [he or] she makes no effort to establish that [he or] she was prejudiced by the alleged error." (In re S.C. (2006) 138 Cal.App.4th 396, 422 (S.C.), citing, e.g., Cal. Const., art. VI, § 13.) That is so here.
The next single-sentence paragraph in MacDonald's brief is equally conclusory. "In fact," he claims, "the trial record is absolutely replete with examples where defense counsel was duty-bound to object to improper questions and failed to do so." At the end of the sentence is a footnote with four single-spaced pages of citations to the record. Yet he cites no authority and makes no attempt to articulate any theory of prejudice. "When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.'" (S.C., supra, 138 Cal.App.4th at p. 408.) That is so here.
Quoting Evidence Code section 352, MacDonald then articulates, for the first time, a rationale for a claim of prejudice: "The prejudicial effect of defense counsel's ineffectiveness is shown by his failure to object to the prosecution admitting a particular photo into evidence." Noting that the prosecutor had established the age of a child victim before showing the jury a photograph of her "dressed up as a cute little cowgirl for the beauty pageant" he argues, "The purpose behind the unnecessary admission of this photo was obviously nothing but to put the image of a cute little girl in the minds of the jurors." He elaborates, "Proof of the undue prejudice created by the 'cuteness' of the photo was shown by the prosecutor referring to the photo twice during her closing argument."
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The record refutes MacDonald's claim. First, as the prosecutor stated while showing the photograph to the jury during opening statement, the child "is going to tell you that she recalls that pageant. And it helped solidify for her when she had a first really good memory of something happening." Second, as she noted during argument to the jury, the child's "first real clear recollection" of a lewd or lascivious act was around the time of the pageant. Third, as she stated in argument to the jury, the photograph was relevant to the passage of time between the initial lewd or lascivious acts and trial, when she was 24 years old. "Helps to have an idea of what someone looked like as to the time they are testifying when they come in here as an adult and they don't look like a child that could easily be taken advantage of." Fourth, she argued, a contemporary photograph showing a beautiful child and expert testimony about child sexual assault accommodation syndrome showing "how someone who is sexually abused as a child might respond" can help the jury understand "how he got away with it."
The evidence at issue was more probative than prejudicial, so an objection by MacDonald's attorney would have been meritless. (Evid. Code, § 352.) Since the law neither does nor requires idle acts, an attorney has no duty to make a futile request and does not render ineffective assistance of counsel by not doing so. (Civ. Code, § 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.)
MacDonald next complains that his attorney withdrew an objection "so that he could get back to his office earlier" and that the prosecutor "misstated the evidence four times" by questioning a witness about his having touched a child victim's "breast, instead of chest, before [his attorney] objected." With reference to his first complaint, the record shows that the court and counsel agreed to change the order of testimony to accommodate his attorney's responsibilities of "an office to maintain and a practice to maintain" and the prosecutor's costs of housing witnesses and the court's late arrival that day. With reference to his second complaint, the record shows that, after his attorney objected, not only did the witness correct his testimony to reflect the child victim's use of the word "chest," not "breast," when she told him about the molestation but also that the child victim had already used the word "breast," not "chest," when she testified about the molestation. "While exaggeration may not violate rules of court and standards of review, it is not an effective tool of appellate advocacy." (S.C., supra, 138 Cal.App.4th at p. 416.) Both complaints are meritless.
Finally, MacDonald complains that his attorney's question on direct examination, "In your whole life, have you ever, ever, abused a child physically?," not only elicited his reply, "Never," but also opened the door to impeachment by a witness who the prosecutor stated (outside the presence of the jury) had told law enforcement that MacDonald "did a full hand grab of her breast" when she was 13 or 14. His attorney acknowledged he was aware of the witness but the police report documented her saying "in no uncertain terms" she "would not be willing to come to testify." Contrary to the police report, the witness, 22 years old at the time of trial, testified that one time when MacDonald was drinking he "sort of slid his hand close to [her] chest area" but that she got up and "went somewhere else" and did not "let him get to [her] boob."
"'Surmounting Strickland's high bar is never an easy task,'" the United States Supreme Court emphasized recently. (Harrington v. Richter (2011) __ U.S. __, __ [178 L.Ed.2d 624, 642; 131 S.Ct. 770, 787-788] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. __, __ [176 L.Ed.2d 284, 297; 130 S.Ct. 1473, 1485].) "With respect to prejudice, a challenger must demonstrate '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.' It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" (Richter, supra, __ U.S. at p. __ [178 L.Ed.2d at p. 642; 131 S.Ct. at pp. 787-788], quoting Strickland, supra, 466 U.S. at pp. 687, 693-694, cit. omitted.)
MacDonald falls far short of the mark. The witness at issue testified that he once "sort of slid his hand close to [her] chest area" but did not even touch her breast. In sharp contrast, some of his child victims testified to his repetitive commission of horrific acts of sexual molestation. For example, one child testified that he touched her breasts and her vagina with his hands, that he digitally penetrated her, that he orally copulated her, and, while holding her head, that he put his penis in and out of her mouth until he ejaculated. Another child testified that he touched her vagina a few times a week, that he frequently had her masturbate him to ejaculation, that he digitally penetrated her more than 15 times and orally copulated her more than 15 times, and that he had sexual intercourse with her two to three times a week. Testimony like that far more effectively refuted MacDonald's denial of ever having abused a child physically than the trifling testimony of the witness at issue. He fails to discharge his burden to demonstrate a reasonable probability that the result of the trial would have been different in the absence of her testimony. (Richter, supra, __ U.S. at p. __ [178 L.Ed.2d at p. 642; 131 S.Ct. at pp. 787-788]; Strickland, supra, 466 U.S. at pp. 687, 693-694.)
At oral argument, MacDonald's appellate counsel relied on United States v. Cronic (1984) 466 U.S. 648 for the proposition that his attorney's performance at trial created "a classic case of cumulative error" from which a presumption of prejudice arises. As our reading of the record differs from his, Cronic offers him no solace.
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2. Judicial and Prosecutorial Conduct
MacDonald argues that "judicial complacency and incompetence" together with "prosecutorial misconduct" denied him a fair trial. The Attorney General argues that MacDonald forfeited his right to appellate review of those issues by failing to object at trial and, alternatively, that the record shows neither judicial complacency nor prosecutorial misconduct.
At the outset, we turn to the issue of forfeiture. The law is settled that failure to raise the issue of judicial conduct at trial forfeits the right to appellate review of that issue (People v. Farley (2009) 46 Cal.4th 1053, 1110; People v. Samuels (2005) 36 Cal.4th 96, 114) and that failure to raise the issue of prosecutorial conduct at trial forfeits the right to appellate review of that issue (People v. Thomas (2011) 51 Cal.4th 449, 491-492; People v. Lopez (2008) 42 Cal.4th 960, 966). On the premise that MacDonald "failed to assert arguments of judicial and prosecutorial misconduct or bias below," the Attorney General invokes the forfeiture doctrine. In his reply brief, MacDonald retorts that the Attorney General "evidently chose to ignore the myriad examples" of "judicial and prosecutorial impropriety" in his opening brief.
Our review of each citation to the record that MacDonald argues shows "judicial and prosecutorial impropriety" confirms the premise of the Attorney General's argument. MacDonald did not raise the issues of judicial or prosecutorial conduct at trial. His new trial motion likewise was silent. On that record, he forfeited his right to judicial review. In any event, his argument has no merit since he fails to establish judicial or prosecutorial misconduct, let alone judicial or prosecutorial misconduct that deprived him of a fair trial. "A defendant is entitled to a fair trial but not a perfect one." (Lutwak v. United States (1953) 344 U.S. 604, 619.) MacDonald received the fair trial to which he was constitutionally entitled.
DISPOSITION
The judgment is affirmed.
Gomes, J. WE CONCUR: Wiseman, Acting P.J. Dawson, J.