Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA082376. Patrick T. Meyers, Judge.
ORIGINAL PROCEEDING; application for a writ of habeas corpus.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
Appellant Virgil Pinero Narvaez challenges his multiple lewd act upon a child convictions on the grounds the trial court erred by excluding the greeting cards the victim had given him, Evidence Code section 1108 violates due process and equal protection, the trial court abused its discretion by admitting prior sexual offense evidence, and the trial judge lacked jurisdiction to reconsider and reverse the prior decision of a different judge regarding the admissibility of the prior offense evidence. We conclude appellant forfeited his claims regarding exclusion of greeting cards by failing to articulate a theory of admissibility at trial. Evidence Code section 1108 does not violate due process or equal protection. The trial court did not abuse its discretion by admitting the prior sexual offense testimony. Following a mistrial, the second trial judge permissibly “reconsidered” the first trial judge’s ruling excluding prior sexual offense evidence under Evidence Code section 352.
Narvaez also challenges his conviction by a petition for writ of habeas corpus alleging ineffective assistance of counsel. We conclude the petition does not establish a prima facie claim, as it does not establish that counsel’s waiver of closing argument was prejudicial.
BACKGROUND AND PROCEDURAL HISTORY
When V. was 13 years old, her father (appellant) began coming into her bedroom at night and touching her breasts, buttocks, and vagina. V. informed her stepmother of appellant’s conduct, but her stepmother did not believe her and appellant continued to touch V. inappropriately. After about two years, appellant allegedly raped V. He allegedly continued to do so with great frequency until she moved out of the family home.
A jury convicted appellant of three counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)), but could not reach a verdict on a charge of forcible rape. The court declared a mistrial as to the rape charge, which was subsequently dismissed. Appellant admitted allegations that he had one prior serious or violent felony conviction within the scope of the Three Strikes law, one serious felony conviction within the scope of Penal Code section 667, subdivision (a)(1), and a prior qualifying sex offense conviction within the scope of Penal Code section 667.61, subdivision (a). The court initially sentenced appellant to prison for 50 years to life, but subsequently discovered it had miscalculated the sentence. It then resentenced appellant to 55 years to life pursuant to Penal Code section 667.61, subdivision (a) and the Three Strikes law.
DISCUSSION
1. Appellant forfeited his claims regarding exclusion of greeting cards.
Appellant’s defense strategy was to cast doubt upon V.’s credibility. On cross-examination, appellant asked V. whether she had given him greeting cards for Christmas, Easter, Father’s Day, and his birthday. She admitted she had. Appellant marked as exhibits two poster boards covered with greeting cards (Defense Exhibits E and G). V. admitted the cards on the poster boards were ones she gave to appellant during the time period he was committing the charged acts. She also admitted that she had written a message on most of the cards. When appellant asked her to read the message she had written inside one of the cards, the prosecutor objected on the grounds of relevance and hearsay. The court sustained the objection.
The prosecutor later objected to the admission of Defense Exhibits E and G on the ground that they were hearsay. Appellant argued that V.’s testimony established a foundation for admission of the greeting cards because “[s]he admitted she had given these cards to her father. She admitted that she dated them on the inside. They are all dated on the inside. [¶] And she admitted that the messages inside were handwritten by her directed to her father. And these were all given to her at a time when she claims she was being sexually molested by her father.” The court excluded Exhibits E and G as hearsay. The court explained, “There has been no foundation laid for any exception under the hearsay rule. They are also really essentially cumulative. The nature of the endearing sentiments substantially have been testified to on cross-examination by [V.], and they have been seen from a distance by the jurors. They display sentiments on the front face and drawings and whatnot.”
Appellant contends the trial court erred by excluding the greeting cards because they fell within the state of mind hearsay exception. He argues that V.’s state of mind was in issue because appellant’s defense was that V. lied about the conduct upon which the charges were based. Appellant further contends the exclusion of the greeting cards violated due process because it precluded him from presenting a meaningful defense.
Appellant did not mention his state of mind theory of admissibility to the trial court, either during V.’s cross-examination or when the court considered the admissibility of Defense Exhibits E and G. Failure to raise a particular theory of admissibility precludes appellant from relying upon that theory on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 854.) This includes failure to cite a hearsay exception or argue a nonhearsay purpose. (People v. Ramos (1997) 15 Cal.4th 1133, 1178.) Even constitutional objections must generally be raised in the trial court in order to preserve them for appeal. (People v. Williams (1997) 16 Cal.4th 153, 250; People v. Rudd (1998) 63 Cal.App.4th 620, 628.) Appellant therefore forfeited both his evidentiary error and due process claims by failing to raise them in the trial court.
Moreover, assuming arguendo that counsel’s words adequately expressed the state of mind hearsay exception, there was no prejudice from exclusion of the exhibits, since the jury had already learned, during V’s cross-examination, that she had written messages in the greeting cards she gave to appellant. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Section 1108 does not violate due process or equal protection.
Evidence of appellant’s prior lewd conduct with 12-year-old C. was admitted under Evidence Code section 1108. Appellant contends that section 1108 violates due process and equal protection.
Unless otherwise noted, all further statutory references pertain to the Evidence Code.
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108) and domestic violence (Evid. Code, § 1109). Our Supreme Court has held that section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta).) As appellant recognizes, that ruling is binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s theory regarding an equal protection violation is that “section 1108 treats those accused of sexual offenses differently from other criminal defendants by allowing evidence of other alleged sexual offenses to be admitted at trial for all purposes, including proving the defendant’s propensity to commit the charged crime.”
An equal protection claim requires unequal treatment of persons who are similarly situated. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) If such disparate treatment is shown, the statute is reviewed differently based upon the nature of the classification. Strict scrutiny applies where the legislation creates a suspect classification based upon race or national origin or infringes a fundamental interest. (Ibid.) An intermediate level of scrutiny applies to classifications based upon gender or illegitimacy. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. (Ibid.)
Appellant has not demonstrated the validity of his initial premise: that persons accused of sexual offenses are similarly situated to criminal defendants charged with other offenses. “Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1311 [equal protection challenge to section 1109].)
Assuming, for the sake of argument, that persons accused of sexual offenses are similarly situated to all other criminal defendants, the legislative classification created by section 1108 is subject to rational basis analysis. (People v. Fitch (1997) 55 Cal.App.4th 172, 184 (Fitch).) Appellant’s contention that strict scrutiny applies because the statute affects his due process rights is undermined by Falsetta. Fitch held that section 1108 withstood rational basis analysis: “The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses. This reasoning provides a rational basis for the law. Defendant’s arguments as to the recidivism rate of sex offenders are unavailing. In order to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to which it might apply. The Legislature is free to address a problem one step at a time or even to apply the remedy to one area and neglect others.” (Fitch, supra, 55 Cal.App.4th at pp. 184-185.) We agree with the reasoning and result in Fitch and People v. Jennings, supra, 81 Cal.App.4th at pages 1310-1313, which rejected an essentially identical equal protection challenge to the parallel statute, section 1109. Appellant’s equal protection claim has no merit.
3. The trial court did not abuse its discretion by admitting the prior sexual offense testimony of C.
Appellant contends that the trial court abused its discretion by concluding it should not exclude the prior misconduct evidence regarding C. under section 352.
Given the enactment of section 1108, courts may no longer deem evidence of prior sexual offenses unduly prejudicial per se. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) Instead, the court must engage in a careful weighing process under section 352. In doing so, the court must consider factors such as the nature, relevance, and remoteness of the prior offense; the degree of certainty of its commission; the likelihood of confusing, misleading, or distracting the jurors from their main inquiry; the similarity of the prior offense to the charged offense; the likely prejudicial impact on the jurors; the burden on the defendant in defending against the uncharged offense; and the availability of less prejudicial alternatives to outright admission of the prior offense, such as admitting some but not all of the prior sex offenses, or excluding irrelevant though inflammatory details surrounding the offenses. (Falsetta, supra, 21 Cal.4that p. 917.)
Prior crimes or misconduct need not share an unusually high degree of similarity to be admissible under section 1108. The Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so would tend to make section 1108 as restrictive as section 1101, thereby defeating the purpose of its enactment and preventing the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. (People v. Soto (1998) 64 Cal.App.4th 966, 983-984.)
The prosecutor informed the court that he was seeking to introduce the testimony of C. and two detectives regarding an incident in September 1996 at appellant’s home in Brea, during a slumber party for V. According to the prosecutor, appellant touched C.’s breasts and placed her hand on his penis. During the investigation, appellant made admissions and incriminating statements about being attracted to children.
After extensive argument, the trial court concluded the evidence should be admitted. The court articulated its analysis of the Falsetta factors and admissibility under section 352 as follows:
The discussion in this section refers to the rulings of Judge Meyers following mistrial. Judge Knupp initially excluded the prior misconduct evidence, as discussed in greater detail in the context of the final issue addressed in this opinion.
“The first of those is the nature of the offense. . . . [T]his is the same offense, and it’s fair to say so in a hearing outside the presence of the jury. It’s lewd conduct with a child under 14. [¶] The prior reported offense apparently involved touching over the clothes and/or skin of an adolescent female child. It’s relevant. It’s evident to the court that it’s certainly indicative of an M.O. in the comparability of the circumstances. [¶] The age of the victims, the home location, the risk in inferably compulsive behavior involved in this activity within one’s own home, my rather rough and analogous reference to the foreplay nature of an approach and overture made to a young woman. [¶] . . . [¶]
“Remoteness. This was not remote. It was within two years. Any number of things involving remoteness – strikes, felonies or moral turpitude, all of this would be comfortably within the time of what courts over and over and over and over again in many contexts have said are not remote. This was not remote. It was within approximately two years of the beginning of the events involving the alleged victim in this case.
“. . . [T]he degree of certainty of its commission. There was either a plea or a guilty verdict in this case. I suspect a plea of either guilty or no contest of this crime. That is Penal Code section 288(a).
“The likelihood of confusing and misleading or distracting evidence. There is no question that potential exists, but the likelihood aspect of it can be addressed by jury instructions and jury admonition. [¶] However, the court . . . will indicate that it is dissuaded in no respect from its very grave and significant concerns about any offer of proof involving an officer in that case taking the stand in this case and giving what are characterized to be admissions in that prior case. I find no case law in my review supporting that. [¶] . . . [¶]
“Similarity of the charged offense, seems to the court to be the same kind of conduct. There is a group, a pool of adolescent females, in the setting that’s familiar to the defendant. [¶] Those things seem to me to be significant resemblances. I discussed already and I discussed under the rubric of similarity sexual conduct or misconduct begins with a series of progressive acts, roughly speaking from foreplay to some sex act or some culminating act. Has to start somewhere, and it usually starts with someone touching another person, and then the nature, degree and scope of the touching intensifies. [¶] That did not go far with [C.], but there were –there were two contacts reportedly, and one was reportedly the defendant touching her, and the second was the defendant having her touch him. [¶] Didn’t get more serious than that. I am not suggesting that’s a saving grace for the defendant, but it’s not as if a rape occurred.
“The burden on the defendant in defending against the uncharged offense, it is significant. He pled guilty or no contest, I suspect, but that is excluded here by the bifurcation order. That will not come in. [¶] The claimed victim in the prior offense, if called, will be subject to cross-examination, which may not be as expansive as it might have been at a potential trial of the prior offense. Ten years, nearly ten years have elapsed since that event. That is not inconsequential. I recognize that.”
Following an argument by defense counsel, the court continued, “I have considered Evidence Code section 352, and I do not find that this will create a substantial factor or a substantial danger of undue prejudice against your client. [¶] And for that reason, having weighed those factors, including what I didn’t get to because I stopped to listen to you, I considered also the availability of less prejudicial alternatives to his outright admission. [¶] No one is coercing an admission by the defendant, and I am going to limit the evidence that is presented, but I am not going to limit the alleged victim in that prior incident from testifying.”
C. thereafter testified that in September 1996, when she was 12, she attended a slumber party given by V. at her home. There were about 10 girls, all between the ages of 11 and 13, who attended the party. Appellant and his wife were the only adults present during the party. The party was held in the living room of the house. At one point, C. went into the kitchen to get some water. Appellant followed her, put his hand down her shirt, and felt one of her breasts. She returned to the living room. Later, she returned to the kitchen, and appellant again followed her. He pulled his penis out of his trousers and placed C.’s hand on it. She told him to stop, and he told her not to tell anyone. He also said he wanted to have sex with her. She returned to the living room. Later, C. attempted to use the restroom, but found the door locked. Appellant emerged from the restroom and told her he wanted her to come inside. She went back to the living room and got a friend to escort her to the restroom. Appellant saw the friend and left the restroom.
The court did not admit any police testimony regarding the incident with C. and did not admit evidence of appellant’s arrest, conviction, or probation resulting from that incident.
We review any ruling on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Evidence of appellant’s prior sexual offense or misconduct against C. constituted relevant circumstantial evidence that he committed the offenses charged in this case. (People v. Falsetta, supra, 21 Cal.4th at p. 920.) Appellant’s conviction stemming from the C. incidents was for committing a lewd act with a child under 14. Three of the counts charged against appellant in this case were for the same offense. The offenses were thus of the same nature, apart from the forcible rape count pertaining to V. Because appellant sustained a conviction for his conduct against C., there was great certainty that appellant committed the prior offense.
The conduct against C. was strikingly similar to that against V. C. was 12 years old at the time of the incident to which she testified, and V. testified she was 13 when appellant began touching her. Appellant’s conduct with V. initially consisted of touching her breasts and vagina, sometimes by placing his hands under her clothing. Both the incident at the slumber party and the conduct with V. posed a high risk of exposure for appellant, as a number of other children were in a nearby room during the incidents with C., and appellant’s wife was in a nearby room during many of the incidents with V. Apart from the inherent similarity, this increased the probative value of C.’s testimony, as a significant aspect of appellant’s defense was the implausibility of him molesting V. with his wife nearby.
Appellant’s misconduct against C. was less inflammatory than the charged acts, as V. was appellant’s daughter, he molested V. for several years, and V. testified that appellant eventually progressed from lewd touching to rape, and that he raped her about 600 times in one year. In contrast, appellant’s acts against C. were quite limited in scope and took place over a period of a few hours. In addition, appellant did not abuse a position of trust with respect to C., who was simply an acquaintance to him.
Although the trial in this case took place years after all of the charged and uncharged conduct, the offenses against C. took place less than two years before the offenses against V. The incidents with C. occurred in September 1996, whereas V. testified appellant began touching her inappropriately in April or early May of 1998.
Before C. testified, the court instructed the jury that the prosecution was going to “present evidence that the defendant engaged in conduct with a witness [C.] amounting to a crime or crimes that were not charged in this case.” The court informed the jury that the prosecution must prove the commission of the uncharged crime or crimes by a preponderance of the evidence, and it explained the preponderance of evidence standard. It further instructed, “If you decide that the defendant committed this uncharged crime, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit a sexual offense and, based on that decision, also conclude that the defendant was likely to commit the charged crime or crimes. [¶] If you conclude that the defendant committed the uncharged crime or crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crime or crimes. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Again, you are not to consider this evidence for any purpose other than the limited purpose which I have just instructed you on.” The court reinstructed the jury on the limited use of the C. evidence in the instructions given at the conclusion of the trial.
Through its explanation and instructions, the court established the context, purpose, and permissible use of C.’s testimony. There was therefore little or no likelihood that the C. evidence would confuse, mislead, or distract the jurors. Although the jury did not learn that appellant had been convicted and punished for his offenses against C., this was a direct result of appellant’s desire to exclude evidence of his prior conviction, as manifested in his request to bifurcate the trial of the prior conviction allegations. Moreover, the instructions informed the jury of the limited purpose for which it could consider the C. evidence and cautioned the jury not to use the evidence for any other purpose. These instructions channeled the jury’s consideration of the evidence to a determination of whether appellant committed the prior offense, not whether he was punished for it.
Finally, the trial court chose a less prejudicial alternative by precluding the prosecution from introducing the testimony of two police officers regarding statements by appellant during the course of the investigation of the offenses against C.
The trial court carefully weighed all of the pertinent factors, considered the potential for undue prejudice to appellant, and took steps to reduce any undue prejudicial effect. The court did not abuse its discretion in admitting the evidence.
4. Judge Meyers permissibly “reconsidered” Judge’s Knupp’s earlier order excluding the prior sexual offense evidence.
Initially, Judge Knupp excluded the C. evidence on the ground the prosecution had not disclosed it in accordance with the timing requirements of section 1108, subdivision (b). The prosecutor asked the court to dismiss the case for refiling pursuant to Penal Code section 1387.2. Appellant consented to this procedure, and the court granted the request. Appellant was rearraigned on the existing information and the trial date was reset.
Appellant moved to exclude the C. evidence on the grounds the prior ruling collaterally estopped relitigation of the issue and the evidence should be excluded under section 352. At the start of trial, Judge Knupp excluded the C. evidence on the ground its probative value was substantially outweighed by its potential for undue prejudice. Three days later, the court declared a mistrial at appellant’s request because a sheriff’s deputy who was to be a defense witness was unavailable.
Over seven months later, the prosecutor filed a motion for reconsideration of the ruling excluding the C. evidence. The case was transferred to Judge Meyers for trial, and he ruled that C.’s testimony would be admissible, as discussed in the preceding section of this opinion.
Appellant contends that Judge Meyers lacked jurisdiction to review and reverse Judge Knupp’s decision on the admissibility of C.’s testimony.
In a criminal trial, the trial court generally has broad authority to reconsider interim rulings and correct its own prejudgment errors. (In re Alberto (2002)102 Cal.App.4th 421, 426.) However, a different rule applies to a second judge’s reconsideration of the ruling of a different judge. (Id. at p. 427.) “Different policy considerations . . . are operative if the reconsideration is accomplished by a different judge. Accordingly, the general rule is just the opposite: the power of one judge to vacate an order made by another judge is limited.” (Ibid.) “For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (Ibid.) This rule is intended to promote orderly administration of justice, prevent forum shopping, preserve confidence in the integrity of the courts, and prevent one judge from interfering with a case pending before another judge. (Ibid.; People v. Riva (2003) 112 Cal.App.4th 981, 991 (Riva).)
If, however, a judgment is reversed on appeal and remanded for a new trial, the rulings on pretrial motions and objections to evidence may be reconsidered. (Riva, supra, 112 Cal.App.4th at pp. 991-992.) The court in Riva concluded this principle also applied where a mistrial was granted. (Id. at p. 992.) “In the case of a mistrial the issues remain in flux, the rulings remain interlocutory and the outcome remains undetermined.” (Ibid.) “We conclude, therefore, pretrial rulings on the admissibility of evidence, like rulings on pleadings, should be reviewable by another judge following a mistrial because they are intermediate, interlocutory rulings subject to revision even after the commencement of trial.” (Ibid.)
Reconsideration of a prior ruling of another judge following mistrial requires that the defendant be given notice and an opportunity to be heard. (Riva, supra, 112 Cal.App.4th at p. 992.) In addition, “the revised ruling cannot be arbitrary or made without reason.” (Ibid.) “Furthermore, for reasons of comity and public policy discussed above, trial judges should decline to reverse or modify other trial judges’ rulings unless there is a highly persuasive reason for doing so -- mere disagreement with the result of the order is not a persuasive reason for reversing it. Factors to consider include whether the first judge specifically agreed to reconsider her ruling at a later date, whether the party seeking reconsideration of the order has sought relief by way of appeal or writ petition, whether there has been a change in circumstances since the previous order was made and whether the previous order is reasonably supportable under applicable statutory or case law regardless of whether the second judge agrees with the first judge’s analysis of that law.” (Id. at pp. 992-993, fns. omitted.)
Reassignment of appellant’s case to Judge Meyers occurred after a mistrial. His subsequent reconsideration of the prosecution’s motion for admission of the evidence regarding C. was therefore potentially permissible. Appellant had ample notice of the motion, which was filed on May 5, 2006 and heard by the court on May 18, 2006.
Given the purpose of section 1108, the factors to be considered pursuant to Falsetta, supra, 21 Cal.4th at pages 916-917, and the nature of the particular prior offense evidence in this case, Judge Knupp’s exclusion of C.’s testimony was not reasonably supportable. He did not address the Falsetta factors, but simply stated that “there is not much probative value to those acts as compared to the acts involved in the present matter. The prejudicial effect is considerable for the defendant.” As discussed in the preceding section, a proper analysis using the factors set forth in Falsetta strongly supports the admission of the evidence. The prejudicial effect upon appellant flowed entirely from the high probative value of the evidence. The effect was thus only what section 1108 and the underlying public policy intended, not the sort of undue prejudice to be prevented through discretionary exclusion under section 352. Accordingly, Judge Meyers had a highly persuasive reason to revisit the issue and reach a different conclusion.
Accordingly, appellant’s claim has no merit.
5. Petitioner has not established a prima facie claim of ineffective assistance of counsel.
While his appeal was pending, petitioner filed a petition for writ of habeas corpus alleging that defense counsel’s failure to make a closing argument constituted ineffective assistance of counsel. We agreed to consider the petition with the appeal and requested and received an informal response by respondent. Petitioner filed no reply.
Defense counsel made a lengthy opening statement, vigorously cross-examined V. and called several defense witnesses. However, without explanation or advance notice to the court or prosecutor, he submitted the case without making a closing argument.
A claim that counsel was ineffective generally requires a showing, by a preponderance of the evidence, that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Petitioner must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.)
Citing United States v. Cronic (1984) 466 U.S. 648 (Cronic), petitioner argues that defense counsel’s failure to make a closing argument deprived him of counsel at a critical stage of the proceedings, thereby entitling him to reversal without the necessity of showing prejudice.
In Cronic, supra, 466 U.S. 648, the United States Supreme Court held that prejudice need not be shown where the trial lost “its character as a confrontation between adversaries,” (id. at pp. 656-657), i.e., where there was a “complete denial of counsel” at a critical stage, where “counsel entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” or where even a competent attorney would have been unable to provide effective assistance under the circumstances. (Id. at pp. 659-660.) In Bell v. Cone (2002) 535 U.S. 685, the Supreme Court explained that its holding in Cronic was extremely narrow: “When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” (Id. at pp. 696-697.)
Similarly, the California Supreme Court has deemed the Cronic exception to be quite limited: “Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage.” (In re Visciotti (1996) 14 Cal.4th 325, 353.)
Defense counsel was not “totally absent” during any portion of petitioner’s trial. Nor was there a denial of counsel at a critical stage of the proceedings. Counsel was clearly present and the court in no way prevented counsel from participating. Petitioner’s attempt to portray his attorney’s decision not to make a closing argument as a denial of counsel is unavailing. The Cronic exception pertains to cases “when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” (Cronic, supra, 466 U.S. at p. 659, fn. 25.) A denial of counsel requires some state action that denies or deprives a defendant of the presence of counsel. (Bell v. Cone, supra, 535 U.S. at pp. 695-696, fn. 3.) Petitioner has alleged nothing of the sort. Counsel is not required to make a closing argument (Bell v. Cone, supra, 535 U.S. at pp. 697-698, 701-702), and the court had no duty to intervene to force him to do so. Accordingly, defense counsel’s decision to waive closing argument did not constitute a denial of counsel and does not fall within the Cronic exception. Petitioner must therefore establish deficient performance and prejudice.
Petitioner has not shown a reasonable probability he would have obtained a more favorable result if defense counsel had made a closing argument. Counsel thoroughly informed the jury of the nature and particular bases of petitioner’s defense through his detailed opening statement, his cross-examination of V., the testimony he elicited from defense witnesses, and his exhibits. That defense was that V. was falsely accusing petitioner and the alleged conduct could not have occurred without the knowledge of petitioner’s wife, Elena.
In defense counsel’s opening statement, he explained that the entire prosecution was based upon V.’s statements and testimony, without any corroborating testimony or physical evidence, and that it would be “a credibility case. . . . You either believe [V.] and convict my client, or you don’t believe her and you acquit my client.”
In his opening statement, defense counsel represented that Elena would testify V. never complained of any “vaginal problems.” Counsel subsequently elicited the supporting testimony from Elena. Similarly, he informed the jury that he expected V. to testify that petitioner used a condom, but Elena would testify she never found any used condoms or packaging. Elena subsequently testified that she was the person who cleaned the house, but she never found any used condoms or packaging.
Defense counsel told the jury in his opening statement that Deputy Shanor would testify that V. made statements to him that were inconsistent with her preliminary hearing testimony. Counsel called Shanor as a defense witness, and he testified that V. told him petitioner first raped her in the spring of 1998, not June 2000, as she testified at trial. She also told Shanor it occurred in petitioner’s bedroom not the dining room, as she testified at trial. Shanor testified that V. did not tell him that petitioner tied her hands behind her back and orally copulated her before raping her the first time, as she testified at trial.
Petitioner’s attorney also alerted the jury in his opening statement to the “inherent improbabilities” of the prosecution case, including matters such as V.’s statement to Shanor and testimony at the preliminary hearing that petitioner had sexual intercourse with her 600 times in one year; V.’s expected testimony that “when these episodes were going on at night she kicked, she creamed, she hollered, she fought,” yet Elena never heard anything and never found petitioner missing from her bed when she arose frequently during the night due to her medical problems; V.’s claim that petitioner was molesting her while Elena was home on maternity leave; and the presence of petitioner’s mother in a bedroom next to V. for three months during the time petitioner was allegedly molesting V. Counsel subsequently elicited testimony from V. on cross-examination to the effect that petitioner raped her 600 times in one year; Elena was always present in an adjacent bedroom when petitioner molested her at night; V. sometimes fought, kicked, and screamed to resist petitioner; Elena occasionally came into V.’s bedroom while petitioner was there; and petitioner sometimes molested her during the daytime when Elena was home.
Elena testified her bedroom door was five feet from V.’s bedroom door, and Elena insisted that the bedroom doors always be left open at night. Defense Exhibit B was a diagram of the home used during Elena’s testimony and admitted into evidence. Elena never heard screaming or a commotion from V.’s room, never found petitioner out of bed, even though Elena’s medical problems caused her to get out of bed every few hours, every night. She also checked on V. several times a night. When Elena took maternity leave, she was home all day, every day for six weeks. Elena further testified that petitioner’s mother came to stay with the family from November 2002 until January 2003. Petitioner’s mother slept in a bedroom adjoining V.’s bedroom, and she kept the bedroom door open. She never left the house and also arose frequently during the night.
Defense counsel also told the jury in his opening statement that it would hear that petitioner had a vasectomy, followed by complications, and could not have sex for three months, however he expected V. to testify that petitioner was having sex with her during this time. V. testified that petitioner had a vasectomy but it was “a very quick procedure,” and continued to have sex with her. Elena testified that petitioner had the vasectomy in June 2000, suffered complications and infection, and his sex drive did not return to normal for four months. Paperwork pertaining to the vasectomy was admitted as defense Exhibit M.
Counsel’s opening statement also informed the jury that during the five years in which petitioner was allegedly molesting V., she never told anyone about it. V. testified she only told Elena about it, and Elena testified that V. never said anything about being molested until after she moved out of the house.
Petitioner’s attorney also told the jury in his opening statement that it would see photographs of V. and petitioner together in which V. was laughing and happy, along with greeting cards in which V. expressed love for petitioner. During V.’s cross-examination, counsel introduced poster boards covered with greeting cards (Defense Exhibits E and G), along with poster boards covered with photographs of V. and petitioner (Defense Exhibits C and D). V. testified that the cards and photographs were from the time period in which petitioner was allegedly molesting her. Defense Exhibits C and D were admitted in evidence.
Petitioner’s attorney told the jury in his opening statement that V. had motives for falsely accusing petitioner that would emerge during the trial. On cross-examination, V.’s testified that she had filed a civil action against petitioner and Elena seeking damages.
Defense counsel also noted in his opening statement that V. was a trained dancer with very strong legs, making it likely she could fight off petitioner. Counsel subsequently elicited testimony from V. that she took dance classes several times a week after school, won dance competitions, and had very strong legs. She admitted that she felt she “somewhat” had the ability to fight off petitioner due to the strength she had developed dancing. Elena testified that V.’s dance lessons made her extremely muscular and strong, especially in her legs.
In sum, defense counsel’s opening statement thoroughly and skillfully apprised the jury of the nature of the defense and alerted jurors to the expected inconsistencies and implausibilities in V.’s testimony and statements, along with the expected defense evidence contradicting V.’s testimony or rendering it implausible. Counsel’s thorough cross-examination, along with his presentation of defense testimony and exhibits clearly made the defense case, which was straightforward and easy to understand. There was no need for counsel to explain or organize petitioner’s defense through closing argument. Nor was there a need for him to reiterate the defense. The jury’s inability to reach a verdict on the forcible rape charge demonstrates that the jury understood and considered petitioner’s defense. Accordingly, petitioner has not demonstrated that he was prejudiced by counsel’s waiver of closing argument.
The jury reported it had voted four times on the rape charge and was intractably divided, with eight jurors voting for acquittal.
Moreover, petitioner has not negated the presumption that the waiver of argument was a sound strategic choice by defense counsel. As discussed above, the defense was clearly laid out in counsel’s opening statement and throughout the trial. Counsel reasonably may have concluded that there was no need to reiterate the straightforward defense or give the prosecutor a second opportunity to argue.
DISPOSITION
The judgment is affirmed, and the petition for writ of habeas corpus is denied.
We concur: RUBIN, J. FLIER, J.