Opinion
A153105
02-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH OCHOA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H-58232)
Joseph Ochoa appeals following his convictions for multiple counts relating to the sexual molestation of his former stepdaughter, Jane Doe. He argues ineffective assistance of counsel and sentencing errors. We affirm.
In a separate petition for writ of habeas corpus, case No. A158523, appellant has raised a number of claims challenging the competency of his trial counsel. We have denied that petition by separate order filed this date.
BACKGROUND
Prosecution Case
Jane Doe was 18 years old when she testified at trial. When she was seven, in 2005 or 2006, appellant began dating her mother and, a couple of months later, moved into their house. Appellant and Doe's mother separated in 2013. Starting when Doe was seven or eight years old and continuing until she was 13 or 14 years old, appellant sexually molested her. Doe testified to numerous specific incidents of molestation over the years. She did not tell anyone while it was happening because she was afraid of appellant, who sometimes hit her with his belt or hand or yelled at her with a "scary look" on his face, and also because she was afraid of hurting her mother. In 2014, after appellant and Doe's mother separated, Doe told her then-boyfriend about the molestation. A year later, she told her father, who persuaded her to talk to the police.
Doe's former boyfriend and father both testified at trial, corroborating her account.
Doe's mother testified about her relationship with appellant. She described specific periods where appellant would have been regularly alone with Doe: for various periods, appellant was not working because of an injury or unemployment; for less than a year he worked part-time, about three days per week; and another job had appellant regularly home from work in the early or mid-afternoon. During this entire time, Doe's mother worked full-time and arrived home between 5:00 p.m. and 6:45 p.m. Although Doe sometimes had sports practices or games and was not home when her mother got home, it was not uncommon that she would already be home. Appellant's son from his previous marriage, Anthony Ochoa, who Doe testified was about three months younger than she was, lived with them around two days a week and every other weekend. Doe's mother and appellant had two daughters during their relationship.
We refer to Anthony by his first name to avoid confusion. No disrespect is intended.
An expert in child sexual abuse and Child Sexual Abuse Accommodation Syndrome (CSAAS) testified. CSAAS describes a pattern of events or behaviors that tend to occur in cases of child sexual abuse. It is an educational tool originally designed to help therapists treating child sexual abuse victims by dispelling misperceptions the therapists may have held about how victims would act. One component of CSAAS is secrecy: victims of child sexual abuse may be afraid of disclosing the abuse because of explicit or implicit threats. Another component is delayed disclosure: children may disclose the sexual abuse long after it happened.
Defense Case
Appellant testified in his own defense. During appellant's relationship with Doe's mother, he coached Doe in sports and pushed her to succeed so she could get a college scholarship. When he and Doe's mother first separated, Doe cried hysterically and said she did not want her family to break up (Doe and her mother both testified on cross-examination that Doe cried at this separation). After the separation, appellant stopped paying for or being involved with Doe's sports. Appellant denied molesting Doe and denied being alone with her as often as she and her mother testified, although he admitted having been home alone with her on some occasions.
Doe's mother testified she held a private fundraiser to pay for Doe's expensive sports fees after appellant left, and that during their relationship appellant had contributed to these fees.
Lisa Farris, a probation officer supervisor, testified that she had known appellant and Doe for seven or eight years. She saw them at her son's basketball games or at Macy's, where Farris worked part-time. In her work as a probation officer, Farris was trained to notice if a child appeared sad or withdrawn. When Farris saw Doe with appellant, she was always happy and never looked sad or withdrawn.
An expert in the critical analysis of CSAAS testified. Each component of CSAAS can occur in a case of actual child sexual abuse, but can also occur in a false allegation case. CSAAS is misleading because it suggests the presence of its components means child sexual abuse occurred; in fact, the components could be explained by other reasons. Verdict, New Trial Motion, and Sentence
The jury convicted appellant on all charged counts: two counts of lewd acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)); two counts of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)); two counts of sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)); continuous sexual abuse with a child under the age of 14 years (§ 288.5, subd. (a)); and lewd acts on a child of 14 years (§ 288, subd. (c)(1)).
All undesignated section references are to the Penal Code.
After the verdict, appellant retained new counsel and filed a motion for a new trial. Appellant argued that trial counsel provided ineffective assistance, submitted investigator reports prepared before trial for appellant's trial counsel, and requested an evidentiary hearing. The trial court denied both the request for an evidentiary hearing and the motion for a new trial, finding trial counsel's performance was not deficient.
The court sentenced appellant to an aggregate term of 96 years and eight months to life.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant argues his trial counsel provided ineffective assistance in several ways. " 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189 (Carter).)
A. Failure to Investigate and Present Witnesses
Appellant argues trial counsel was ineffective in failing to adequately investigate and present the testimony of Anthony and of Doe's cousin, Marcelo. We disagree.
1. Additional Background
In December 2016, the day after the jury was selected and the day before opening statements were scheduled to begin, appellant brought a motion to exclude certain prosecution evidence. Due to an apparent mistake or oversight, the People had failed to provide to the defense a police report describing a 2015 interview with Anthony and Anthony's mother (appellant's ex-wife), until the parties were arguing in limine motions. The police report documented a statement from Anthony's mother that in 2008 or so, Anthony came home to his mother's house with a cell phone that he said appellant gave him. His mother looked through the phone and found a "close-up nude photograph of a child's buttocks." Anthony told his mother that appellant took the pictures while he, appellant, and Doe were playing a game in which one person pulled down another's pants. Anthony's mother subsequently gave the phone to appellant's father.
At the hearing, appellant's trial counsel first argued the evidence was of questionable reliability. Following receipt of this report, appellant's investigator spoke to Anthony, who admitted he and Doe had played the game and taken photographs, but said appellant was not present. Trial counsel also represented that Doe told child abuse investigators appellant never took pictures of her, and that appellant would deny the photograph incident in his testimony at trial.
Trial counsel argued that if evidence about the photograph were introduced at trial, he would need to show where Doe "got sexual knowledge to be engaged in the sex play of taking down her pants and Anthony's pants" and that the "sexual knowledge . . . did not come from my client; that [it] predated my client knowing her." Counsel represented that there was a potential witness who could provide such evidence: Doe's mother told appellant that, before appellant met Doe, Doe was caught multiple times engaged in sexual activity with a cousin named Marcelo. Marcelo worked out of state and counsel could not conduct an investigation or obtain a subpoena in time for the trial.
Trial counsel also discussed his prior decision, before learning about the police report, not to call Anthony at trial, even though Anthony told counsel he and Doe had been sexually involved, because at that point "what was relevant is [Doe's] sexual knowledge, to be able to make up such a story, and she would have been 15 at the time. I felt she's old enough to know what is in this allegation that she has made." Because counsel determined that a victim "15 years and older would know sexual details," he had previously determined "there was no need for a[n Evidence Code section] 782 motion based upon the information that we had, even though we knew that [Doe] was sexually active."
Evidence Code section 782 sets forth a procedure to determine the admissibility of evidence of sexual conduct offered to attack the credibility of a complaining witness, including the submission under seal of an offer of proof for the trial court's review. (Evid. Code, § 782.)
Counsel noted, "Prior to all of this coming up, the DA and I had discussed we both wanted this case tried before Christmas for our own reasons, and one of the reasons I had was that I was booked up through March, and if this got continued again, we are looking at April before I have any open time." Counsel concluded, "I would ask that this trial proceed and that the statement about a photograph being found and the hearsay statement be excluded. Otherwise, we would need a four-month continuance. My client has virtually spent all of his money. He doesn't have the money to start over. I think that it would be in the best interest of justice that we go forward with this trial and without that evidence."
The prosecutor argued the trial should be continued, noting appellant was out of custody and "facing very serious charges, and we're talking about a key piece of evidence for the People." The prosecutor emphasized "the importance that . . . justice be done in a case, and that the jury hear the evidence, and that the Defendant not be able to benefit to the degree he may in this case if this becomes an acquittal because of this lack of evidence because of an error of this nature."
The trial court characterized the statements in the police report as "very, very important evidence against the Defendant" and found that, because of the late discovery, appellant lacked adequate time to investigate and prepare a response. The court denied the People's request for a continuance and instead ordered, as a sanction, the exclusion of any evidence regarding the matter contained in the police report, including as rebuttal in the event that appellant testified and denied molesting Doe. The court also ruled that if Anthony testified and contradicted Doe's testimony, the prosecutor could impeach Anthony with the matter contained in the police report.
When appellant filed his post-verdict motion for a new trial, he attached three investigator reports documenting pretrial interviews with Anthony. Anthony told the investigator he never saw any inappropriate sexual behavior between appellant and Doe. He also reported he and Doe had been sexually active, starting when Anthony was ten years old and Doe was eleven and continuing as they got older. Anthony said, with respect to at least the earlier incidents, Doe was the initiator and pressured Anthony into engaging in them. Anthony believed Doe made up the accusations to prevent appellant from moving on after he and Doe's mother separated.
In addition, the trial court accepted as an offer of proof representations of statements Anthony made to appellant's new counsel, as described in appellant's new trial papers. The court also accepted as an offer of proof counsel's representation that appellant's father stated he never received a cell phone from Anthony's mother.
2. Evidentiary Hearing
As an initial matter, appellant contends we should remand for an evidentiary hearing to evaluate Anthony's credibility and demeanor. We disagree.
The decision to hold an evidentiary hearing on a motion for new trial is a discretionary one. (People v. Williams (1997) 16 Cal.4th 635, 686.) Appellant contends the trial court mistakenly thought it lacked discretion to hold such a hearing. Even so assuming, appellant has not shown prejudice from any such error. First, the court's comments—including that an evidentiary hearing would not be an "efficient use of the Court's resources"—suggest that it would not have exercised its discretion to hold a hearing in any event. Second, even if a hearing had been held at which Anthony testified, appellant has not shown the result would be different. Appellant argues the trial court was "unable to judge Anthony's credibility to determine whether it would have made a different result on retrial reasonably probable." But the trial court denied the new trial motion after finding trial counsel's performance was not deficient; the court did not reach the prejudice prong of ineffective assistance of counsel and therefore any finding as to whether Anthony's testimony would have made a difference at trial would not have changed the court's ruling. Third, although appellant cursorily asserts that trial counsel could also be examined at an evidentiary hearing, appellant sought the hearing below solely to question Anthony. The record thus indicates if the trial court had held an evidentiary hearing, appellant would not have called trial counsel to testify. Moreover, appellant makes no showing that trial counsel's testimony would have changed the trial court's ruling. Accordingly, appellant fails to show prejudice from any error in the trial court's ruling on an evidentiary hearing. (S.T. v. Superior Court (2009) 177 Cal.App.4th 1009, 1016 ["A trial court's failure to exercise its discretion" is harmless where "it is not reasonably probable that the appellant would have obtained a more favorable result had the court exercised its discretion"].)
The People state appellant's reply brief below sought to have trial counsel testify, but the brief in fact only noted "[t]he prosecution is free to call defense counsel and examine him . . . ."
To the extent appellant suggests it is appropriate for us to remand for an evidentiary hearing to facilitate our appellate review, we reject the contention. Where the record on appeal is insufficient to establish an ineffective assistance of counsel claim, the appropriate avenue to develop the record is to file a habeas petition with sufficient allegations to state a prima facie case. (See Carter, supra, 36 Cal.4th at p. 1189 [" 'If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.' "]; In re Fields (1990) 51 Cal.3d 1063, 1071 [habeas petitioner "must show us what the trial would have been like, had he been competently represented, so we can compare that with the trial that actually occurred and determine whether it is reasonably probable that the result would have been different"].)
3. Conflict of Interest
Appellant argues trial counsel failed to seek a continuance of the trial due to a conflict of interest. "Both the United States Constitution and the California Constitution guarantee criminal defendants the right to the assistance of counsel unburdened by any conflicts of interest. [Citation.] Essentially, a claim of conflict of interest constitutes a form of ineffective assistance of counsel. [Citations.] In order to demonstrate a violation of the federal and state constitutions based on a conflict of interest, a defendant must show that his or her counsel was burdened by an 'actual' conflict of interest—one that in fact adversely affected counsel's performance. [Citation.] When determining whether counsel's performance was 'adversely affected' by the purported conflict under this standard, we consider whether ' "counsel 'pulled his punches,' i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict." ' [Citation.] This analysis will often turn on choices that a lawyer could have made, but did not make. In order to determine whether those choices resulted from the alleged conflict of interest, we must analyze the record to determine whether a lawyer who did not face the same conflict would have made different choices as well as whether counsel's choices were the product of tactical reasons rather than the alleged conflict of interest." (People v. Perez (2018) 4 Cal.5th 421, 435-436 (Perez).)
Appellant points to trial counsel's arguments that (1) counsel and the prosecutor previously discussed wanting "this case tried before Christmas for our own reasons, and one of the reasons I had was that I was booked up through March, and if this got continued again, we are looking at April before I have any open time"; and (2) "[m]y client has virtually spent all of his money. He doesn't have the money to start over." From this, appellant argues trial counsel's decision not to seek a continuance was motivated by trial counsel's belief "that he couldn't get any more money from appellant and [he] wanted to get the trial over with."
Even assuming a conflict was present, the record does not reveal that it affected counsel's performance. The record before us plainly indicates there was a proper tactical reason for trial counsel's decision not to seek a continuance: if the trial were not continued, the trial court would likely exclude the damaging evidence contained in the late-disclosed police report, and the benefits of this exclusion outweighed any advantages of continuing trial. This was an eminently reasonable strategy that would likely have been adopted by nonconflicted counsel. "Because '[t]he record does not show that a different strategy would likely have been adopted by competent, unconflicted counsel,' 'it fails to demonstrate either conflict-driven adverse performance, or ineffective assistance, on counsel's part.' " (Perez, supra, 4 Cal.5th at p. 437; see also id. at pp. 436-437 ["[O]n the record before us at this time, we have no basis to 'conclude that the only explanation for counsel's failure to' [take certain actions] 'is the asserted conflict of interest.' "].) Appellant has failed to demonstrate trial counsel labored under a conflict of interest that affected his performance.
4. Ineffective Assistance of Counsel
Appellant separately argues trial counsel was ineffective in failing to adequately investigate and present the testimony of Anthony and Marcelo, in failing to file an Evidence Code section 782 motion so Anthony could testify about Doe's sexual conduct, and in failing to seek a continuance to present Anthony's testimony and investigate Marcelo's.
" ' "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.' " [Citation.] "[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 decisionmaking must be evaluated in the context of the available facts." ' " (People v. Hinton (2006) 37 Cal.4th 839, 876 (Hinton).)
As is apparent from trial counsel's comments at the hearing, before learning about Anthony's mother's statement about the photograph, counsel considered the primary relevance of evidence of Doe's sexual history to bear on the credibility of her disclosure of the abuse. Counsel reasoned that, if disclosure came from a younger child who would not otherwise know about the type of sexual conduct described in the disclosure, evidence of sexual conduct other than with the alleged perpetrator could provide an alternative explanation for this knowledge. However, Doe was 15 at the time of disclosure and counsel reasonably determined that a victim of this age would independently know about the type of sexual conduct she described, and there was therefore no need to present Anthony as a witness or attempt to contact Marcelo. This is a reasonable tactical decision.
Appellant contends trial counsel mistakenly thought Doe was 15 or older when she and Anthony engaged in sexual conduct; however, it is clear that trial counsel's comments about Doe being 15 years or older related to her age at the time she disclosed appellant's sexual abuse.
Appellant argues Anthony's testimony could have been used for a number of other purposes: appellant's character; Anthony's observation of no inappropriate behavior between Doe and appellant; Doe's history of lying "to get herself out of trouble"; Doe's "sexual sophistication" in contrast to her apparent naivety, which the prosecutor argued bolstered her credibility; and Doe's feelings of abandonment when appellant left her mother. There are reasonable tactical bases for trial counsel to decide against presenting Anthony's testimony for these possible uses. Most notably, trial counsel could have reasonably determined the jury would consider Anthony—appellant's son—a biased witness. Counsel could also have reasonably concluded it was more likely the jury would be put off by his testimony of Doe's prior sexual conduct than that it would rely on such testimony to find her not credible. Counsel could reasonably have decided testimony that Anthony saw no inappropriate conduct between appellant and Doe was of minimal value because Anthony was only with appellant part-time, and testimony that Doe lied to get herself out of trouble was similarly unhelpful because there was no evidence that but for Doe's disclosure she would have been in trouble. In addition, after the trial court excluded the late-disclosed evidence, trial counsel had even more reason not to call Anthony as a witness: the trial court ruled that if Anthony testified and contradicted Doe's testimony, the prosecution could impeach him with the evidence contained in the police report. Trial counsel could reasonably determine it was preferable to ensure that the evidence about the photograph remain excluded than to present Anthony's testimony.
Appellant suggests trial counsel was ineffective in relying on his investigator's interviews with Anthony instead of interviewing Anthony himself because absent a personal interview trial counsel could not make a determination about Anthony's credibility. Appellant provides no record support for the assertion that trial counsel did not personally interview Anthony. To the contrary, during the pretrial hearing, counsel represented, "I even had spoken to Anthony . . . ." Even assuming trial counsel did not personally interview Anthony, counsel could reasonably have based his decision not to call Anthony as a witness on factors independent of credibility.
As noted above, on the record before us, trial counsel's strategy in response to learning about the late-disclosed police report was to attempt to exclude the damaging evidence contained in the report by persuading the court it was too late for appellant to prepare responsive evidence and that exclusion was preferable to delaying the trial. Appellant disagrees with this strategy, including with trial counsel's assessment of how damaging the late-disclosed evidence was, but we decline to second-guess trial counsel's tactics. (Hinton, supra, 37 Cal.4th at p. 876.) We note that the trial court, in excluding the evidence, characterized it as "very, very important evidence against the Defendant," and that trial counsel could reasonably be concerned about whether Marcelo would in fact provide helpful testimony. Trial counsel's strategy was not unreasonable.
In sum, we conclude appellant has failed to demonstrate his trial counsel's representation " 'fell below an objective standard of reasonableness under prevailing professional norms . . . .' " (Carter, supra, 36 Cal.4th at p. 1189.)
B. Failure to Move to Exclude Jurors 11 and 12
Appellant argues trial counsel was ineffective in failing to move to exclude two jurors during deliberations. We disagree.
1. Additional Background
The jury began deliberations at the very end of the day on January 4, 2017, deliberating for approximately seven minutes. When the jury returned the following morning, Juror No. 5 told the court he had learned the previous evening that his wife knew appellant's family from growing up in the same neighborhood, and appellant's father or another relative apparently lived very near Juror No. 5's father-in-law's house. Juror No. 5 expressed some concern about retaliation by appellant's family against his family, although he said it would not affect his decision in the case. Appellant's trial counsel asked for Juror No. 5 to be removed and the court excused him.
Before the jury could begin deliberations anew with an alternate, the bailiff informed the court that two jurors indicated they had concerns. Both were questioned separately by the court. Juror No. 11 expressed a concern about the presence of the jurors' names on the jury questionnaire, noting there may be "post-verdict angst that [appellant's] family members or friends may have relative to whatever verdict or potential verdict at this point the jury could come up with." The court and appellant's counsel confirmed that appellant did not have a copy of the questionnaires or access to them and the court ordered no identifying information about the jurors be shared with appellant. With that assurance, Juror No. 11 was satisfied and prepared to continue deliberating.
Juror No. 12 expressed a concern about "physical security" when the jury leaves the courtroom after the case is over, in the event of any "bad feelings after the verdict was read." The court told Juror No. 12 there would be deputies present who could "walk people to their cars if they're concerned." Juror No. 12 had no further concerns and was able to continue impartial deliberations. Trial counsel did not seek to excuse either juror.
2. Analysis
Appellant argues trial counsel was ineffective in failing to move to exclude Juror No. 11 and Juror No. 12. Appellant acknowledges trial counsel did not state his reasons on the record, but argues the reason "appears clear," to wit, there were insufficient alternates to replace the two jurors so their excusal would result in a mistrial, and trial counsel wanted to finish the trial for personal reasons (his schedule and concerns about appellant's ability to pay, based on counsel's comments at the pretrial hearing as discussed above). Appellant asserts "there was no legitimate tactical basis not to move to exclude" the two jurors because they "had probably already decided to return a guilty verdict," and claims the trial court would have excluded the jurors because their concerns were similar to that of Juror No. 5. We disagree.
First, trial counsel could have reasonably concluded that a motion to exclude Jurors Nos. 11 and 12 would have been futile as their easily addressed concerns—about ensuring jury questionnaires were kept from appellant and about physical security immediately after the verdict—were substantially different from those of Juror No. 5, whose wife personally knew appellant's family and whose father-in-law lived close to appellant's family members. Second, we do not construe the jurors' comments as necessarily indicative of their decision to convict: the jury had barely begun deliberations and, as to Juror No. 12, her comments left it ambiguous whether she was concerned about retaliation from appellant's family in the event of a conviction or from Doe's in the event of an acquittal. Third, trial counsel could reasonably determine that proceeding with these two jurors was preferable to a retrial at which the late-disclosed evidence he had persuaded the trial court to exclude would likely be admissible. We conclude appellant has failed to demonstrate trial counsel rendered ineffective assistance, either due to a conflict of interest or otherwise. (Perez, supra, 4 Cal.5th at p. 437; Carter, supra, 36 Cal.4th at p. 1189.)
C. Failure to Present Character Witnesses
With his post-verdict new trial motion, appellant submitted investigator reports describing pretrial interviews with seven people who knew appellant and Doe. One of the interviews was with Lisa Farris, who testified in appellant's defense at trial. None of the remaining six had been called to testify by appellant's trial counsel. Three knew Doe and appellant for several years through Doe's softball, two knew appellant through work or coaching youth sports and had seen him with Doe a number of times, and one provided daycare for Anthony and Doe for a few months in 2008. All six stated they never saw anything concerning or inappropriate about appellant and Doe's relationship.
Appellant argues trial counsel was deficient in failing to present these witnesses. We disagree. Trial counsel could have reasonably determined that their testimony would have been cumulative and of little value. Counsel presented the best witness with Lisa Farris, who was a probation officer supervisor and had been trained to notice concerning signals in children. Appellant has not shown counsel's performance was deficient.
D. Failure to Object to Prosecutor's Closing Argument
The prosecutor's closing statement included the following argument: "[T]here's almost no evidence that was presented that would disprove that these sexual assaults occurred. There's no evidence, for instance, that [Doe] has a history of making up lies, certainly of lies of any magnitude, let alone this magnitude. You didn't hear from somebody who might have been able to cast some light. Anthony Ochoa didn't come in and testify. According to the Defendant, he was there a lot. If somebody could testify about these things, about what did and didn't happen, maybe Anthony Ochoa could, but you didn't hear from him. I think you could reasonably assume he would have information." Appellant's trial counsel did not object.
Appellant argues the failure to object was ineffective assistance. We disagree. " 'Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' " (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Trial counsel may have reasonably determined that it would be more effective to respond to the comment in his argument, which he did.
Appellant's separate contention that the prosecutor's argument constituted misconduct is forfeited. " 'A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made "a timely and specific objection at trial" and requested an admonition,' " unless "an objection would have been futile or a request for admonition ineffectual." (People v. Potts (2019) 6 Cal.5th 1012, 1035.) Appellant does not contend an objection would have been futile, but argues an admonition would not have cured the harm. We disagree. The prosecutor's comments were a far cry from those in People v. Johnson (1981) 121 Cal.App.3d 94, relied on by appellant, in which the prosecutor told the jury "that he had concluded from his personal investigation that the testimony [of a defense witness] was an outright lie," and that a prosecution witness, who was not asked at trial about the substance of the defense witness's testimony, would have contradicted it if asked. (Id. at pp. 102-103.) Here, in contrast, the prosecutor did not assert or suggest that he had superior knowledge, and we "have no reason to doubt that . . . any prejudice could have been cured by an admonition emphasizing that the jury should follow the court's instructions and disregard the statements at issue." (Potts, at p. 1035.)
E. Trial Counsel's Closing Argument
Appellant argues trial counsel's closing argument was ineffective because it suggested counsel believed appellant was guilty. We disagree.
Appellant targets various matters discussed in counsel's argument: the conflicting verdicts in O.J. Simpson's criminal and civil cases, which appellant contends suggested counsel believed " 'my client is as innocent as O.J. Simpson' "; comments by then-President Clinton about the O.J. Simpson verdicts, which appellant argues would have reminded the jury of President Clinton's narrow definition of "sexual relations," thus leading the jury to believe the beyond-a-reasonable-doubt standard was "legal hair-splitting designed to shield a guilty individual"; an anecdote about counsel's teenage crush on a classmate, which appellant contends suggested "counsel believed that appellant at least had a lewd intent"; and a song with the refrain "tell me more," in which friends ask for details about a romance, which appellant argues suggested that "something" happened between appellant and Doe even if the details were embellished.
Trial counsel's closing arguments did not indicate he believed appellant was guilty. To the contrary, counsel argued that Doe fabricated the allegations and that appellant was "actually innocent." While appellant may disagree with some of the examples used by trial counsel to illustrate his argument, trial counsel could have reasonably determined the colorful examples would best keep the jury's attention and ensure they retained his key points. Appellant has failed to demonstrate trial counsel's performance was deficient.
Because we have rejected all of appellant's claims of deficient performance, we need not decide whether appellant was cumulatively prejudiced as he contends.
II. Sentence
A. Consecutive Sentences
Appellant first argues the trial court abused its discretion in imposing consecutive terms for each of appellant's convictions. We disagree.
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. [Citations.] The sentencing rules specify several criteria to guide the trial court's determination whether to impose consecutive or concurrent terms." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) These rules provide the imposition of consecutive sentences may be affected by factors including whether "[t]he crimes and their objectives were predominantly independent of each other" and whether "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(1) & (3).) In addition, "[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except," as relevant here, "[a] fact that is an element of the crime may not be used to impose consecutive sentences." (Rule 4.425(b)(3).) Circumstances in aggravation include that "[t]he crime involved . . . acts disclosing a high degree of . . . callousness;" "[t]he victim was particularly vulnerable;" "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism;" and "[t]he defendant took advantage of a position of trust or confidence to commit the offense." (Rule 4.421(a)(1), (a)(3), (a)(8), & (a)(11).)
All undesignated rules references are to the California Rules of Court. --------
The trial court clearly explained its reasons for imposing consecutive terms, relying on the following factors: the crimes had independent objectives (rule 4.425(a)(1)); the crimes took place at different times or separate places (rule 4.425(a)(3)); the victim was particularly vulnerable (rule 4.421(a)(3)) in that she was seven or eight years old when the crime was committed and she lived with appellant who had easy and regular access to her; the crime was carried out in a manner indicating planning and sophistication (rule 4.21(a)(8)); appellant, as Doe's then-stepfather, took advantage of a position of trust or confidence (rule 4.21(a)(11)); and the crimes involved a high degree of callousness in that appellant molested Doe from ages seven through fifteen (rule 4.421(a)(1)).
Appellant contends the trial court relied on inappropriate factors. He discusses whether certain factors contained in the probation report or in the prosecutor's argument were appropriate, but the trial court did not rely on these factors in imposing consecutive terms. Appellant argues vulnerability based on Doe's age is an element of the crimes, but the trial court only relied on this factor in imposing sentence on the two counts of lewd acts on a child under the age of 14 years (§ 288, subd. (a)) because Doe—seven and eight years old, respectively, at the time of these crimes—was substantially younger than the maximum age. Appellant disputes the trial court's finding that his crimes involved planning and sophistication. The court reasoned: "The defendant molested the victim for eight years at times when he knew no other adult was present. The defendant groomed the victim to gradually acclimate to his molestations increasing the seriousness and magnitude of the sexual molestations and conduct as time progressed throughout the years of his sexual attacks on the victim." The trial court did not abuse its discretion in finding this factor applicable.
Appellant argues he had no prior criminal history, he presented a low risk of recidivism, some of the conduct could have been covered by a lesser charge, and numerous letters of support were submitted on his behalf. None of these render the court's imposition of consecutive terms an abuse of discretion.
B. Cruel and Unusual Punishment
Appellant argues that his sentence of more than 96 years to life constitutes cruel and unusual punishment in violation of the United States and California Constitutions. We disagree.
"A punishment violates the Eighth Amendment if it involves the 'unnecessary and wanton infliction of pain' or if it is 'grossly out of proportion to the severity of the crime.' [Citation.] A punishment may violate article I, section 17 of the California Constitution if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231.)
Appellant argues his crimes involved "only technical 'intercourse', no forcible sex, and only a single victim" with "no evidence of physical harm." He also emphasizes his lack of a prior criminal record. These factors do not render his sentence cruel and unusual. Appellant sexually abused his stepdaughter for years, beginning when she was only seven years old. The sentence is not so disproportionate to the crimes as to shock the conscience. (See People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 522-523, 531-532 [sentence of 129 years for sexually abusing stepdaughter "repeatedly and over a long period of time" was not cruel and unusual]; People v. Retanan, supra, 154 Cal.App.4th at p. 1231 [sentence of 135 years to life for "numerous sex crimes against four young girls" was not cruel and unusual].)
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.