Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-051763-1
Swager, J.
Defendant was convicted following a jury trial of one count of committing a lewd and lascivious act on a child under the age of 14 year old (Pen. Code, § 288, subd. (a)), and was sentenced to the middle term of six years in state prison. He claims in this appeal that his appointed counsel failed to afford him with adequate representation. We conclude that no prejudicial incompetence of counsel occurred, and affirm the judgment.
Defendant was also charged with an associated enhancement for substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). After the jury was unable to reach a verdict on that allegation, a mistrial was declared.
STATEMENT OF FACTS
The Prosecution’s Case .
For many years defendant was very close friends with the victim “Jane,” her father Jason, mother Becky, and brother Alexander. Jane and Alexander, were born in 1996 and 1993, respectively. Jason and Becky looked upon defendant as “a brother” to them; their two children called defendant “Uncle Travis.” Alexander and Jane were “like siblings” with defendant’s son Nick. Defendant often wrestled with the children, tickled them, or gave them “wedgies.” Becky testified that she and Jason “loved” defendant and trusted him with the children “100 percent.” They were aware that defendant sometimes took naps with Jane in her bedroom.
For the sake of confidentiality, we will refer to the victim by the name Jane, as was done at trial, and we will refer to the members of her family by their first names only.
Jason, Becky and their children moved from California to Houston, Texas in 2002. Defendant joined them in Texas in November or December of 2003. He slept on a couch, downstairs in the “front room” of their house, where the entertainment center and computers were also kept. Alexander and Jane slept in two bedrooms upstairs; the master bedroom was downstairs. While in Texas, defendant was employed with Becky’s brother, working mostly weekends and evenings.
In June of 2004, Jason and Becky decided to return the family to California. Becky left Texas before the rest of the family in June of 2004 to take a job in Sacramento. Jason remained behind with the children and defendant in Texas to continue working there until the house was sold. That summer Jason and Becky arranged with defendant to have him “watch the kids” during the days while Jason was at work. In August of 2004, defendant drove Jane and Alexander from Texas to California to join Becky in the Sacramento area. After his arrival in California, defendant lived with his mother or brother.
In November of 2004, when Becky flew back to Houston for a three-day weekend, defendant stayed with the children. Thereafter, defendant did not spend the night with the children, although in late-May of 2005, he took his son Nick, Alexander and Jane to his mother’s house in Brentwood. Defendant’s mother was not home that weekend. Other than those two occasions, defendant was not alone with the children.
In the summer of 2005, Becky and the children lived in an apartment in Natomas. One afternoon, Jane was playing with a neighbor, Valerie M. (Valerie), and her younger sister. Valerie testified that her sister mentioned a song playing on the radio was “gay.” Jane said, “oh, my uncle’s gay, but not the one that touches me.” Valerie inquired of Jane, “what do you mean?” Jane replied “that he touched her down there in places that she didn’t like.” Jane added that in Texas defendant came into her room while she was “in her bed trying to sleep” and touched her on “her lower body” and “other uncomfortable places.” Jane also told Valerie that in California defendant “would give her wedgies and would just touch her in uncomfortable places.” If Jane complained, defendant “would put ice down there or on other places she didn’t like.” To indicate where defendant touched her, Jane pointed to her “vagina.” Jane told Valerie that she did not tell any adults for fear “that she might get in trouble.” Valerie advised Jane to tell her mother “because it’s a big thing.”
Jane and Valerie immediately contacted Valerie’s mother, Lillian H., about 2:30 that afternoon. Jane told Lillian H. that her “Uncle Travis” “touched” her. When Lillian H. asked Jane “where” she had been touched, she replied “down there,” and “pointed between her legs.” Jane stated that the touching occurred on a bed at “Uncle Travis’s mother’s house” in California, and “started” with him “giving her wedgies.” When she complained that she “didn’t like that” and asked “him to stop,” he told her “don’t complain or I’ll put ice down there” – meaning between her legs. Jane also said that “the ice was put down there.” Jane told Lillian H. that she had not disclosed this to her mother because she “thought her mother was going to get angry.”
Lillian H. spoke with Becky when she arrived home later that evening. Lillian H. also reported what Jane told her to a police officer the same evening. After speaking with Lillian H., Jane, and Alexander, Becky made a report of child molestation to the Brentwood Police Department.
Jane testified at trial that defendant “touched” her on multiple occasions, one of which occurred in the living room of her home in Texas, after she had fallen asleep on the couch while watching a movie. When Jane awoke, defendant was on his side next to her on the couch, touching her with his fingers between her legs under her pajamas. His fingers were inside her “private part,” and it hurt a “little bit.” Jane pretended to be asleep while defendant was touching her.
On another afternoon when Jane was at home in Texas with only defendant and Alexander present, defendant lifted her over his shoulder, went downstairs to the freezer to get some ice, then took into her bedroom, closed the door, put her on the bed and pulled down her pants. Jane testified that defendant “put the ice cube in my private part where I go to the bathroom” until “it melted.” He then let her go.
Jane also recounted an incident in California at the home of defendant’s mother when Alexander and Nick were present. Defendant again lifted Jane onto his shoulder and carried her into his mother’s bedroom on the second floor of the house. He closed the door and put her on her back on the bed. Defendant then left the room to get an ice cube. When he returned he pulled down her clothes and, according to Jane, “put the ice cube where I go to the bathroom.” After the ice cube melted defendant told Jane she could “go downstairs.”
After the “first time” defendant touched Jane, she told her brother, but he said, “I don’t believe you.” Jane was “afraid to tell [her] mom and dad.” She did not disclose the molestations to anyone else until she told her “friend’s sister Valerie.”
Alexander testified that defendant “was a close friend,” and he “loved him like an uncle.” Over the years he and Jane frequently played with defendant, “messing around, tickling each other,” and “wrestling.” During the games they played defendant sometimes got on top of the children, including Jane.
Alexander recalled that defendant lived with his family in Texas. Defendant slept on a couch in the living room. Often, defendant was alone in the house with Alexander and Jane. One day, Alexander watched as defendant put Jane on his shoulder and took her into the master bedroom. Alexander went to the bedroom door, but it was closed and locked. He did not think “anything bad” was happening in the bedroom; he “just thought [Jane] was being tickled.” Alexander got a hanger and unlocked the door to “scare them.” He saw Jane, clothed, facing down on the bed with defendant “on top of her.” Before Alexander could surprise them, however, defendant turned around and said, “Boo.” He then told Alexander, “Get out.” Alexander left the bedroom. He thought that Jane was just “being tickled” by defendant as part of a “game” they played. On at least one other occasion in Texas, Jane, Alexander and defendant slept together in the living room, with Jane and defendant on the same couch.
Alexander also witnessed an incident at defendant’s mother’s house in Brentwood, when he stayed there for a weekend with defendant, Nick and Jane. Alexander observed defendant put Jane “over his shoulder” and take her from the computer room “into his mom’s room” on the second floor, then close the door. Although defendant had told Alexander that he was “not allowed” to go into the bedroom while they played a “hide and seek game,” he knocked and opened the bedroom door to ask defendant a question. When Alexander looked inside the bedroom, Jane was on the bed under the covers, with defendant “[r]ight beside her.” Alexander asked defendant a question “about a game,” but defendant said, “I’ll tell you later,” whereupon Alexander left the room. Defendant came out of the bedroom one or two minutes later and went downstairs to watch television. Jane then left the bedroom to watch television with Nick in the office on the second floor.
The prosecution also presented testimony from Helen Maki (Helen), who was married to defendant from October of 1991 until their divorce in July of 1993. Helen met Jason, Becky and their children through defendant, and remained close friends with them even after her divorce from defendant. Helen also maintained a “good relationship” with defendant following the divorce. During their marriage defendant expressed that he wanted to use ice “for oral sex.” Helen testified that “maybe five or six times” defendant used his hand or mouth to apply ice to her “vagina area and clitoris area.” Defendant told Helen that he “tried it with an ex-girlfriend” and “liked it.”
The Defense Case .
The defense adduced testimony from members of defendant’s family. His mother Jeanette Calvin testified that on the weekend defendant brought the children to her home in Brentwood in May of 2005, the ice maker in her refrigerator was disconnected. She had a freezer in the garage of the house, but it had no ice maker or ice trays. When she left her home that weekend, there was no ice in the house. About a month later Jane visited Calvin’s house. Calvin did not observe “anything unusual or peculiar” in Jane’s behavior or interaction with defendant during the visit. Jane “was as close as she always was” with defendant. Defendant’s brother and a neighbor testified that they observed defendant with the children the weekend they were visiting Calvin’s house in Brentwood in May of 2005. They perceived nothing unusual in Jane’s demeanor or relationship with defendant.
Defendant testified in his defense. He described his close relationship with the victim and her family. Defendant resided with them “on and off multiple times.” He regularly wrestled with the victim and her brother, had “squirt gun fights” with them, tickled them, played video games, hide and seek, tag, sports, and gave “them a wedgie” occasionally. He affirmed that he tickled and played with Jane on the bed of his mother’s home in Brentwood, and even “gave her a wedgie on that bed.” Defendant acknowledged that in retrospect “the wedgie is pretty much an inappropriate thing” to do with children. He also agreed that he assisted with the care of the children while he lived with the victim’s family in Texas. Defendant insisted, however, that he never slept on the couch with Jane, slept in her room with her overnight, removed any of her clothes, or touched her in any sexual manner. He denied that he “fondled her vagina,” pulled her pants down, or used any ice on her. When he was interviewed by the police, defendant explained that the “only way” he may have accidentally touched Jane’s vagina was while he was tickling her. Still, he did not believe that occurred. Defendant asserted to the officer during an interview that he “might have touched” Jane, but “never penetrated her.”
The defense also presented expert opinion testimony from Dr. Lee Coleman, a specialist in child psychiatry, on “children’s memory and suggestibility and the potential impact that different types of questioning techniques have on children’s memory and ability to recollect.” Dr. Coleman reviewed the videotapes of the police interviews with Jane, Alexander and defendant. He perceived that the integrity of Jane’s interview was tainted by the failure of the interviewer to take into account the victim’s “prior conversations” with at least three people on the subject of the molestations. The recollections of children may be altered, influenced and subjected to suggestion by prior conversations and interactions with others, particularly parents or others they “want to please.” Children are especially susceptible to alteration of memory “from some other source” in an effort to please others. The “bias or preconceived ideas” of someone who speaks to a child about sexual abuse may be communicated to that child and “contaminate the child’s statements and possibly their actual memory.”
Dr. Coleman testified that the person who interviewed Jane failed to discuss the nature of her conversations with other people to examine and determine the extent to which those conversations may have influenced the child’s recollection of events. Further, Dr. Coleman observed a “pattern where the interviewer was making suggestions” to the victim, which resulted in ideas “put out by the interviewer not the child.” He thought Jane was “quite susceptible” to suggestion during the course of the interview.
A “major concern” with Alexander’s interview, according to Dr. Coleman, is that he had “been basically led to a situation” where he was “put under pressure” to give answers that corresponded to conversations with family members and his mother’s characterization of him as “a witness to the molesting.” As an example, Dr. Coleman pointed out that the interviewer suggested to Alexander that someone else was in the room with defendant, and Alexander then gave the answer, “Jane.” Alexander then “expanded” upon his answer in the interview by saying defendant was “holding ice in her genital area” because he “saw a little wet spot there” when Jane left the room. Dr. Coleman asserted that the interviewer improperly failed to delve into the serious discrepancies in Alexander’s account of events or the potential influence upon him of the statements of his mother and others. Dr. Coleman offered his belief that the suggestive interview techniques may have created distorted or false memories in Jane and Alexander.
DISCUSSION
Defendant complains that his appointed attorney failed to afford him adequate representation at trial. He claims his counsel was incompetent for failing to object to the testimony of two witnesses: his former wife Helen, who described the use of “ice when they engaged in oral sex”; and, the reference to some of “Alexander’s extrajudicial statements” by Dr. Coleman. Defendant argues that counsel’s failure to object to the testimony was prejudicial to the defense.
The principles that govern defendant’s claim of “constitutionally inadequate representation are settled.” (In re Lucas (2004) 33 Cal.4th 682, 721.) “To establish a claim of inadequate assistance, a defendant must show counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel’s deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant.” (People v. Frye (1998) 18 Cal.4th 894, 979.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.) Further, “ ‘When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728–729.)
I. The testimony of Defendant’s Former Wife .
Defendant maintains that the testimony of his former wife was subject to exclusion in its entirety pursuant to the marital privilege set forth in Evidence Code section 980. When the prosecution proposed to present the testimony of Helen, defense counsel interposed an objection that the evidence was inadmissible as prior conduct that was “too attenuated to have much of any probative value,” and excessively prejudicial (Evid. Code, § 352). The trial court found that the relevance of the proffered evidence outweighed its probative value, and exercised “352 discretion” to admit the testimony. Defendant claims that Helen’s testimony “clearly falls within the scope of the confidential marital communications privilege,” and thus defense counsel was incompetent for failing to object to the evidence on that basis.
“Evidence Code section 980 establishes a privilege for confidential communications between spouses: ‘[A] spouse . . ., whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.’ ” (People v. Badgett (1995) 10 Cal.4th 330, 363.) “That privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to confidential communications without his or her consent and the consent of the other spouse. Either spouse may claim the privilege. [Citations.] The privilege survives the termination of the marriage and continues to exist even though the marriage has been terminated by divorce.” (People v. Dorsey (1975) 46 Cal.App.3d 706, 717, italics omitted.) The “claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim.” (People v. Mickey (1991) 54 Cal.3d 612, 655; see also People v. Von Villas (1992) 11 Cal.App.4th 175, 221.)
We agree with defendant that at least a portion of Helen’s testimony was within the scope of the marital communications privilege. Helen’s recounting of the substance of statements made by defendant to her during their marriage that he “wanted to use ice” on her, and had “liked it” when he “tried it with an ex-girlfriend,” are privileged under Evidence Code section 980. (Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1347–1348.)
The remainder of Helen’s testimony, however, did not amount to confidential communications. “[T]he fact of communicating, as opposed to the substance of the communication, is not privileged.” (Rubio v. Superior Court, supra, 202 Cal.App.3d 1343, 1348; see also People v. Bradford (1969) 70 Cal.2d 333, 342, fn. 2.) In California, the law is established that “ ‘the privilege applies only to oral or written verbal expression from one spouse to the other, and acts of the spouses committed in each other’s presence do not constitute communications between them, within the meaning of the privilege for confidential marital communications.’ [Citations.]” (People v. Cleveland (2004) 32 Cal.4th 704, 743, italics added.) The privilege “does not extend to physical facts which are observed, which do not constitute ‘communications’ ” (People v. Dorsey, supra, 46 Cal.App.3d 706, 717.) Helen’s description of certain sexual acts that took place with her husband – that is, her testimony that “maybe five or six times” defendant used his hand or mouth to apply ice to her “vagina area and clitoris area” – was not privileged under the marital communication privilege. (Pearce v. Club Med Sales, Inc. (N.D.Cal. 1997) 172 F.R.D. 407, 411; Rubio v. Superior Court, supra, at p. 1348.) As to that evidence, counsel cannot be faulted for failing to present an objection that would have been futile. (People v. Avena (1996) 13 Cal.4th 394, 421; People v. Lewis (1990) 50 Cal.3d 262, 289.)
Defendant’s citation to a Georgia case, (White v. State (1994) 211 Ga.App. 694, 696 [440 S.E.2d 68], in which the court recited the rule that, “ ‘[a]ny conversation or act performed by [the husband] which is attributable to the husband-wife relation, i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation, is privileged,’ ” is not influential in our analysis of the scope of Evidence Code section 980.
Thus, even if counsel had objected to Helen’s testimony on the ground that it violated the marital communications privilege, the objection would have been sustained only in part. The witness would still have been permitted to offer testimony of defendant’s previous use of ice during sexual activity with her. And that evidence of defendant’s specific sexual practice would have furnished corroboration of the victim’s testimony that on two different occasions, one in Texas and the other in California, he put ice on her “private part” until it melted.
“In any case, when considering a claim of ineffective assistance of counsel, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ [Citation.] A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Based upon our review of the evidence before us, we are convinced that the result would have been no more favorable to the defendant if counsel had presented a marital privilege objection to the Helen’s testimony. The jury may not have heard defendant’s statements to Helen, but the critical corroborating evidence of the victim’s version of the molestations would still have been presented in the form of her testimony that defendant applied ice to her “vagina area” during sexual activity. The victim’s account of defendant’s use of ice was further corroborated by the testimony of Lillian H. and her daughter Valerie which recounted statements made by Jane to them. Looking at the record in its entirety, the effect of the additional testimony of defendant’s statements to Helen on the jury’s determination of guilt was minimal to non-existent. (People v. Bogle (1995) 41 Cal.App.4th 770, 784.) We find there is no reasonable probability that assertion of a marital privilege objection would have changed the jury verdict. (Ibid.) Thus, the lack of an objection was not prejudicial to the defense.
II. The Testimony of Dr. Coleman .
We turn to defendant’s complaint that counsel improperly elicited testimony from Dr. Coleman during the defense case that Alexander told an interviewer he had observed defendant “on top of his sister in a room while holding an ice cube.” During Alexander’s testimony he denied that he told the interviewer he saw defendant with an “ice cube” when he was carrying Jane, or that he teased the victim “about having a wet spot on her clothing.” Then, in the course of questioning Dr. Coleman on the flaws of the interview process with the children, defense counsel asked for an explanation of the discrepancy between Alexander’s initial proclamation that he “didn’t see anything,” and his subsequent statements. Defendant points out that Dr. Coleman testified Alexander was “led to a situation” by the interviewer following suggestive questioning where he ultimately stated he “saw Jane” with defendant “on top” of her “holding an ice cube.” During cross-examination by the prosecutor Dr. Coleman reiterated that Alexander “at first said he didn’t see anything,” then after questioning subsequently stated he saw defendant on top of Jane “holding ice on her genital area.” Dr. Coleman explained that given the context in which Alexander “started by saying I didn’t see anything,” the interviewer’s “leading” questions may “lead a suggestible child to just go along with the interviewer.”
An objection to this “narrative” response by Dr. Coleman was sustained.
Defendant argues that his trial counsel’s “inept questioning of his own witness” resulted in the presentation of corroborating evidence of the victim’s description of the molestation from “a second percipient witness,” through the statements of Alexander during his interview, that was not offered during the prosecution’s case. Defendant adds the contention that counsel “compounded this critical mistake by failing to ask for a proper limiting instruction” to the jury to consider Dr. Coleman’s testimony only for the “basis of his opinion,” not as the truth of the hearsay statements made.
The record before us is insufficient to establish that defendant received inadequate representation. The present appeal is one of many that does not exclude a tactical reason for counsel’s actions. A judgment will be reversed “on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye, supra, 18 Cal.4th 894, 980.) “To prevail, defendant must overcome the strong presumption that counsel’s actions were sound trial strategy under the circumstances prevailing at trial.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) The “ ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ [Citation.]” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335–1336.) “In determining whether defense counsel’s performance was deficient, a court must exercise deferential scrutiny. [Citation.] The first and fundamental reason for such deference involves the danger of second-guessing trial counsel. [Citation.] That is so, because the means of providing effective assistance are many and, as a consequence, counsel has wide discretion in choosing which means to use. [Citation.] Further, systematic ‘second guessing’ by appellate courts might have adverse consequences on the quality of legal representation provided to criminal defendants and on the functioning of the criminal justice system itself.” (People v. Walker (1993) 14 Cal.App.4th 1615, 1624.) On appeal, “ ‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected.’ [Citations.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see also People v. Rios (1992) 9 Cal.App.4th 692, 704.)
First, we observe that the vast majority of the testimony by Dr. Coleman on Alexander’s statements to the interviewer of which defendant now complains was directly adduced by the prosecutor, not defense counsel. More importantly, defense counsel reasonably may have concluded that it was in defendant’s interest to present Dr. Coleman’s complete portrayal and explication for the claimed unreliability of the children’s statements due to the interview methods, much of which was entirely exculpatory to defendant. Challenging the accuracy of the perceptions and recollections of both of the children was critical to the defense. Defense counsel may have decided that a brief reference to Alexander’s statements to the interviewer was necessary to furnish the jury with an example of the manner in which his testimony may have been rendered suspect by the interview process. A rational tactical purpose for the testimony was that it was perceived by defense counsel to be essential for a thorough understanding of the reasons the expert offered for discounting the credibility of Alexander’s testimony, and more beneficial to the defense than overlooking some of the basis for Dr. Coleman’s opinions. The decision to present or object to admission of evidence is inherently tactical and will seldom establish incompetence. (People v. Scott (1997) 15 Cal.4th 1188, 1223; People v. Freeman, supra, 8 Cal.4th 450, 490–491; People v. Frierson (1991) 53 Cal.3d 730, 747.)
We of course recognize that the defense may have opened the door to the prosecutor’s questioning.
We recognize that “An attorney’s exercise of discretion in making tactical decisions regarding trial strategy must be both reasonable and informed. An informed decision is one made on the basis of reasonable investigation. [Citation.] Although counsel has ‘wide latitude and discretion . . . that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’ [Citations.]” (In re Visciotti (1996) 14 Cal.4th 325, 348, italics omitted.) But here, we have no way of discerning from the record if counsel’s actions were the result of ignorance or based on an informed tactical decision. We cannot speculate, and without a definitive indication in the record before us of inexcusable ignorance or oversight by defendant’s attorney rather than strategic considerations as the basis for the decision to offer defendant’s testimony, we cannot find inadequate assistance of counsel on appeal. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Williams, supra, 16 Cal.4th 153, 262; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.)
The same is true of the failure of defense counsel to request a limiting instruction. A limiting instruction may be requested (Evid. Code, § 355) for the purpose of informing the jury that hearsay statements admitted for a purpose other than to show the truth of the matter asserted may be considered only to disclose the information upon which an expert based his or her opinion. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1326; People v. Elliot (2005) 37 Cal.4th 453, 481.) As with the presentation of the evidence itself, however, we cannot ignore possible tactical considerations for disdaining a limiting instruction. For instance, counsel may have not wanted to direct the focus of the jury to the underlying statements. (See People v. Wilson (2005) 36 Cal.4th 309, 327; People v. Carter (2003) 30 Cal.4th 1166, 1223.) Counsel may have felt that the advantage to be gained from alleviating the minimal prejudice associated with the underlying evidence mentioned as a basis for the expert opinion was dubious, and not worth the attention of a limiting instruction. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525.) “[W]hether to seek a limiting instruction is a tactical decision properly left to defense counsel, since defense counsel might conclude that the risk of a limiting instruction . . . outweighed the questionable benefits such an instruction would provide.” (People v. Griggs (2003) 110 Cal.App.4th 1137, 1141.) Again, the record does not negate a conceivable legitimate tactical purpose for counsel’s omission, so we cannot find inadequate representation on appeal. (People v. Scott, supra, 15 Cal.4th 1188, 1212–1213.)
DISPOSITION
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
Nor does the opinion in People v. Gibbons (1989) 215 Cal.App.3d 1204, 1209, to which defendant referred in oral argument, have any persuasive impact here. Gibbons did not deal with the marital privilege (§ 980) or a description by a witness of physical acts, but rather a conviction of violating the Privacy Act (Pen. Code §§ 630–632) by surreptitiously videotaping sexual acts.