Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH39644
Sepulveda, J.
A jury convicted defendant Kenneth Perry of continuous sexual abuse of a young girl (Pen. Code, § 288.5, subd. (a)), and other sex offenses (Pen. Code, § 261, subd. (a)(2), 288, subds. (a), (c)(1)). Defendant was the live-in boyfriend of the girl’s mother. Defendant raises a single claim on appeal: that his trial defense attorney rendered ineffective assistance of counsel by mishandling evidence of jail conversations between defendant and defendant’s mother recorded at the time of trial. Specifically, defendant contends that defense counsel was deficient in (1) failing to review the recorded conversations (produced by the prosecution) before presenting defendant’s mother as a witness; (2) failing to object to the cross-examination of the mother concerning the conversations and other topics; and (3) opting to introduce one of the recordings in evidence to refute the prosecution’s characterization of the conversations. We conclude that defense counsel’s performance was deficient on the first matter but no others, and that the single deficiency was not prejudicial. We affirm the judgment.
Defendant has also filed a petition for a writ of habeas corpus. We deny that petition today by separate order.
I. FACTS
Defendant’s claim on appeal presents narrowly confined legal issues that make a complete recitation of the voluminous trial testimony unnecessary. We summarize only that evidence necessary for an understanding of the issues raised on appeal.
A. The Prosecution
Around 1997, defendant began a live-in sexual relationship with a woman named Tracy, who had a 10-year-old daughter, P.D. P.D. testified that defendant’s sexual abuse of her began almost immediately, and lasted for years. The first described incident occurred when P.D. was 10 years old, and her mother was pregnant with defendant’s child. P.D. was asleep in her bedroom when she was awakened by the touch of defendant’s hand on her vagina, above her clothes. When P.D. awoke, defendant jumped and said he thought she was her mother. Defendant asked P.D. to “pinky swear” (promise with interlocking fingers) that she would never tell anyone what happened. Defendant told the child to go back to sleep, and left the room. A similar incident occurred the following night. P.D. awoke to find defendant at her bedside with his hand on her vagina and, again, defendant said he thought she was her mother. Defendant then said he wanted “to try something new,” and pulled down her underwear and put his tongue on her vagina. Afterwards, defendant told the girl to “keep this one between me and you.”
To provide confidentiality, a number of witnesses were identified at trial by their first names and the fictional last name, Doe. To ensure the highest level of confidentiality, we refer to those witnesses here by initials only.
Defendant continued to “touch” P.D. in inappropriate ways and then, by the time P.D. was 12 years old, defendant was putting his penis in her vagina. Defendant would have intercourse with P.D two or three times a month. Defendant repeatedly had sex with P.D. over the next few years, and P.D. described several specific incidents in detail at trial. Defendant would often promise the child things in exchange for sex, like allowing her to go to the mall or parties with her friends or excusing her from household chores.
P.D. testified that by 2003, when she was 15 years old, defendant’s actions made her feel “sleazy,” and she needed the molestation to stop. After another sexual incident in October 2003, P.D. asked defendant to promise not to touch her again and to memorialize the promise in her diary. The girl wrote in her diary: “I cannot ask [P.D.] for nothing no more” and she and defendant signed it. The promise was broken. Later that same month, defendant forced his way into her locked bedroom, held her down on the bed, pulled down her pants and underwear, and put his penis in her vagina. P.D. resolved that this would be the last time that defendant sexually abused her. In December 2003, P.D. told her mother about the molestation.
At trial, three of P.D.’s female friends testified that they were sexually harassed by defendant. B.D. described several incidents that occurred when B.D. was 13 and 14 years old, and visited P.D. at home. B.D. testified that defendant repeatedly made inappropriate sexual comments to B.D. about liking her body and wanting to touch her breasts and behind. Once, P.D. and B.D. were playing a game of “cops and robbers” at P.D.’s house when P.D.’s “step-father” (defendant) assumed the role of a police officer. Defendant locked P.D. in her bedroom (the imaginary jail) and proceeded to arrest and search B.D. Defendant positioned B.D. with her face against the wall, told her to “spread ’em,” pushed her legs apart, and rubbed her down from head to toe. Defendant spent a long time rubbing the girl’s behind and breasts, more time then he spent on other parts of her body, and he rubbed those areas harder. B.D. felt that what defendant was doing “wasn’t right” and she was afraid.
On another occasion, B.D. was exiting the bathroom when defendant pushed her back into the room, entered the room, and closed and locked the door behind him. Defendant grabbed B.D. by the waist and then her behind, said he liked her, and said “come on.” When B.D. tried to leave, defendant blocked her access to the door. B.D. managed to get to the door and leave. As she was leaving, defendant told the girl that she “lost points,” was “off his team,” and was “not on his level.”
In a third incident, B.D. was helping P.D. clean her bedroom before going to the mall. P.D. was in the bathroom as B.D. worked on straightening the bedroom closet. While B.D. was bent over at the waist working on the lower half of the closet, defendant reached up the girl’s skirt with his hands. Defendant touched the girl’s panties over her vagina, and tried to go under the panties. B.D. jumped and spun around to face defendant. Defendant pulled his penis from the zipper of his pants and told the girl to “[g]ive him some,” and asked her if she was “ready.” B.D. understood defendant to be asking for sex, and she walked out of the room. As she left the room, defendant “[s]macked his lips.”
J.D. testified that she was 16 years old when she visited her school friend, P.D., at home and defendant “touched [J.D.] and said inappropriate things.” J.D. said that she was once coming out of the bathroom when defendant grabbed her butt and pulled her against the front of his body, with his erect penis out of his pants. Defendant told J.D. to “grab it,” referring to his penis. Defendant told J.D. he wanted to “rub [his] dick against [her] ass.” Defendant told the girl, “I know you want to have sex with me so don’t act like you don’t.” Defendant tried to touch J.D.’s vagina. J.D. pushed his hand away, told him to stop, and went to P.D.’s room. Defendant told J.D. she was acting like a “scared little ass girl.”
In another incident, J.D. was in the living room eating cookies and preparing to play a video game while P.D. was in her room on the telephone. Defendant came home. Defendant approached J.D., teasingly told her she was not strong, and started play-wrestling with her. Defendant got J.D. on the ground, held her down, tried to kiss her, touched her vagina and breasts, and tried to lower her pants and his pants. Defendant was pressed against the girl, and she could feel that his penis was hard. J.D. told him to stop, and started yelling for P.D. Defendant said: “I don’t know what you calling her for. [P.D.] can’t do shit.” J.D. managed to break away.
D.D. testified that she was 13 years old when she visited P.D.’s house. P.D. was a school friend. Once, while visiting P.D.’s house, defendant asked D.D. to come into his bedroom and close the door, because he wanted to ask her something. D.D. complied, and defendant asked the girl if she smoked marijuana. D.D. said yes, and defendant said he would give her $10 so she could buy “a sack of weed” if she showed him her “titties.” D.D. declined the offer, and defendant then offered the girl $11 and a marijuana pipe if she would let him suck her “titties.” D.D. said no. Defendant asked “ ‘Are you sure?’ ” and said he would go to $11 and the pipe if she just showed him her “titties,” and he placed $11 on his bed. D.D. said no and left the room.
B. The defense
Defendant’s mother, Toni Williams, was the first defense witness to testify. Williams testified that defendant and P.D. had a very close father-daughter relationship and that Williams welcomed P.D. as one of her grandchildren. Williams said she never saw any sign of tension, unease, or fear on P.D.’s part, or anything else unusual in P.D.’s relationship with defendant. Williams also said that defendant never appeared to have any difficulty forming relationships with women, and she never received any complaints about his behavior with young people. Concerning defendant’s relationship with his girlfriend, Tracy, Williams testified that Williams had often told Tracy that Tracy “enabled” defendant “to continue to be stupid” by not insisting that defendant get a job and work for a living. Williams explained: Tracy “didn’t force him to... stand up on his feet and be more of a man.”
On cross-examination, Williams was asked about defendant’s relationships with women and Williams conceded that defendant has five children with five women, and impregnated one of those women while living with Tracy. When asked if defendant was a good father to all his children, Williams said “I think so,” but also admitted that defendant did not regularly see two of his children and that she did not know if defendant paid child support for any of them. The prosecutor also explored Williams’s relationship with P.D., and asked if Williams had “any ill-will towards her.” Williams said “no.” The prosecutor then sought to impeach her testimony by referring to a recent telephone conversation Williams had with defendant. The prosecutor asked: “[i]sn’t it true you said to defendant about [P.D.]. ‘She’s just a fuck-up.’ ” Williams said she did not remember.
Defendant telephoned his mother from jail several times during the progress of the trial. The conversations were recorded, as both parties knew. The prosecutor provided a CD of the intercepted calls to defense counsel eight days before Williams testified.
The prosecutor made further inquires about recent telephone conversations with defendant. The prosecutor asked if Williams had been told by defense counsel that she could not be in the courtroom while other witnesses were testifying, and if the reason for the exclusion of witnesses was explained to her. Williams said “yes.” The prosecutor asked: “Yet you and defendant have had extensive conversations about what each witness has said in this courtroom before your testimony.” Williams said, “We talked about the case,” and, under further examination, admitted that defendant relayed the “gist” of the testimony of various witnesses, including P.D. and Tracy. Defense counsel objected to the line of questioning, and noted that “the Court’s order not to be present during the testimony of witnesses is not an order precluding people from talking about it.” The court suggested that the prosecutor move on, and she wrapped up the day’s questioning by pointing out that Williams had had a couple of weeks to think about what the other witnesses said in the trial before making her own appearance on the witness stand.
Cross-examination of Williams resumed after a weekend recess. Before the jury was seated, the trial judge and attorneys discussed the prosecutor’s on-going cross-examination of Williams and the reference to telephone conversations. Defense counsel said he had not listened to the recorded conversations until the weekend recess. Counsel explained that the prosecutor had not said what use, if any, she intended to make of the calls when the CD was delivered and that he had abandoned earlier efforts to listen to the calls when he could not get the recordings to play on his computer or CD players. As to the substance of the telephone recordings themselves, defense counsel complained that the prosecutor’s references to the conversations between defendant and Williams gave the misimpression of an effort to tailor testimony, when the conversations were wholly innocent. Defense counsel also challenged the prosecutor’s previous question to Williams asking if Williams had not referred to P.D. as “a fuck-up.” Defense counsel conceded that Williams did make that comment, but said it occurred after learning that P.D. had been arrested, and that the comment should be excluded as irrelevant to Williams’s true feelings for P.D. Defense counsel asked that he be permitted to play the entire conversation for the jury, to dispel the prosecutor’s misleading “innuendo” that Williams was tailoring her testimony to fit testimony from previous witnesses, and to provide context for the “fuck-up” comment.
The prosecutor advised the court that, earlier that morning, she played for Williams the recorded telephone conversation in which Williams called P.D. “a fuck-up” and, having refreshed the witness’s recollection, intended to have Williams confirm the comment. But the prosecutor said she had no intention of playing any of the actual recordings for the jury. Defense counsel said he wanted the whole conversation of July 5, 2007 admitted in evidence, and the court granted the defense request. (Evid. Code, § 356.) Counsel stated: “I would just make clear, Your Honor, that it’s my strategic judgment [to] play[] [the recorded telephone call], despite the fact that there are some items I wish I could remove, [but] in my opinion [playing the recording] is the only way to dispel the misleading innuendo that the jury has had put before it.”
When cross-examination continued before the jury, the prosecutor asked Williams if, having reviewed a telephone conversation she had with defendant, her memory was refreshed as to whether Williams called P.D. “a fuck-up.” Williams admitted making the comment. Williams was also asked if, having reviewed the July 5, 2007 telephone conversation, defendant told her what P.D. and certain other witnesses had testified to in court, and Williams said “somewhat.”
On redirect, Williams said that no one ever told her she could not discuss the case with her son, and that none of the information conveyed to her in the telephone conversations with him had any influence on her testimony. Williams also explained that, when she called P.D. “a fuck-up,” it was because she had just learned that P.D. had been arrested for a criminal offense. The defense then played the July 5, 2007 telephone conversation for the jury.
The telephone call was 38 minutes in length and ranged informally and casually over a number of topics, most related to the trial. Defendant began the call by asking about his mother’s health, than proceeded to describe how well the trial was going. P.D. had testified that day, and defendant was confident that defense counsel had “blasted her ass out” on cross-examination and showed her to be a liar. Williams asked about other witnesses and defendant said J.D. “lied like a bearskin rug,” and Tracy “was a[n] act. Oh boy.” Defendant said those witnesses also “got blasted” on cross-examination. Defendant mocked P.D.’s allegation of forcible rape, saying “the last day we supposedly had sex I busted in her room and I basically just took her little pussy.” Defendant went on to describe the testimony of various witnesses, relayed information about a family friend unrelated to trial matters, and then returned to discussing trial events. Defendant said everybody “has been lying,” and reported that J.D. testified that defendant’s birthday cake had a vagina and a “big dick” on it, when it actually had “a butt naked lady” on it. Williams said it was “a butt naked Tracy” on it, and that defendant did not get the cake for himself. Defendant agreed, and laughingly mentioned that “the gay guy on my jury panel was looking at me” when the cake was described.
The conversation did not include Williams’s remark that P.D. was “a fuck-up,” which apparently was made during a different telephone call.
Our review of the record of the testimony of P.D. and other witnesses discussed by defendant reaches a far different conclusion from the one expressed by defendant. While defense counsel skillfully explored the witnesses’ testimony and revealed some inconsistencies, the substance of their testimony remained credible, in our view.
Actually, J.D. testified that the cake was decorated with images of “a butt and a penis,” which the girl found disturbing and so refused the “sex cake” when defendant showed it to her.
Defendant continued to discuss the case, and mentioned evidence that he hoped would show that Tracy had been in contact with him after P.D. accused him of molestation, contrary to Tracy’s testimony. When Williams expressed surprise at hearing that Tracy claimed not to have seen defendant since the allegations were made, defendant said: “Hell, yes, mamma! I’ll tell you, everybody’s been getting up there and been lying like hell.” Defendant said he wondered, though, if he still might get “burn[ed] [by the jury.]” Defendant mentioned a juror (“this one black lady, the older lady with the gray miniature afro”) who was always “looking at [him] like hell,” or “like mean” as clarified by Williams during the call. But defendant said there was a juror who was listening carefully and “taking serious notes.” Defendant referred to that juror as “my big baby right there in front” with “these big ass eyes” who is hard to read because “her face just stay down on that tablet, and she been jugging that tablet all day” taking notes. Defendant repeated that the witnesses lied but “they was all busted in their lies.”
Defendant is African-American.
The meaning of the slang phrase “jugging that tablet” is uncertain. Defendant’s mother understood the term to mean writing on the tablet but defendant’s appellate counsel interprets the term to mean pressing breasts against the tablet. We have found no authoritative definition of the phrase.
Defendant returned to the topic of P.D., and said defense counsel “blasted her ass today. I’m loving Bill [Locke, defense counsel].” Defendant relayed portions of P.D.’s testimony, then commented on her appearance. Defendant said “She cut all her hair off, she got this little short Halle Berry cut. She’s still fat[,] she got on these little sandals, but they’re the stacks like stacksdown [sic] sandal or whatever. But she’s just, she’s off the hook.” Defendant also reported that “Mr. Locke said she put down two or three plates of Mexican food today. He was watching her at lunch.” Williams asked “they all went to the same place for lunch?,” and defendant explained that there was a Mexican place across the street from the courthouse. Defendant returned to describing and critiquing P.D.’s testimony, then Williams asked how Tracy looked. Defendant said “She hella skinny, but she still got them big ass titties. She ain’t got no ass though.” Williams mentioned that “mamma” (Williams’s mother, presumably) said Tracy “looked bad.” The two discussed Tracy for a while, then defendant returned to reporting various segments of trial testimony he characterized as “lies” and “crazy stuff.” Next, they talked about an investigator who wanted to talk to Williams, people who might testify, and people defendant saw in the courtroom. Near the end of the conversation, defendant told his mother that he had a “very good feeling” about the trial, and Williams said she was “prayerful.” Finally, defendant said “I’m not supposed to be telling you this” but “Big [K]en’s thinking of coming out here.” Williams agreed that his presence would be “very good” and defendant and his mother each said “I love you,” then goodbye, and the conversation ended.
“Big Ken” is defendant’s father, as Williams told the jury.
The defense presented additional witnesses, including defendant himself. Defendant denied all accusations that he molested P.D. and her friends. He said that everyone who testified for the prosecution lied. Defendant admitted that he signed P.D.’s diary entry stating: “I cannot ask [P.D.] for nothing no more,” but said the entry had nothing to do with sex. Defendant said he and P.D. had a disagreement when P.D. failed to wash the dishes, which was her assigned household chore. Defendant told P.D. that if she had a problem with doing what he asked, she should not ask him to do things for her, like taking her places. Defendant told the girl to write up a contract stating that he would not ask her to do anything for him, and she would not ask him to do anything for her. P.D. wrote an entry in her diary and he signed it without reading it.
On cross-examination, defendant was asked why he would make an agreement with a 15-year-old-girl that that she would not have to do any chores, when he had just fought with the girl over her failure to do chores. Defendant’s response was unclear. Defendant said the agreement “wasn’t about her not having to do no more chores,” but then described the agreement as follows: “I wasn’t going to bother her about doing stuff to get what I needed done. So instead of asking her, I’d just go in there and do it myself.” As to why P.D. accused him of sexual abuse, defendant said the girl “may have had a crush” on him. Defendant admitted, however, that the girl never made any sexual advances toward him or tried to be romantic with him in any way. Defendant said he was popular with women and styled himself a “ladies friend.” Defendant had told the police he was a “player.”
II.
VERDICT AND SENTENCING
The jury convicted defendant of six counts involving P.D.: continuous sexual abuse of a child under age 14 (Pen. Code, § 288.5, subd. (a)); four counts of committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)); and forcible rape (Pen. Code, § 261, subd. (a)(2)). The jury also convicted defendant of two counts of committing a lewd act on B.D., a child of 14 or 15 years. (Pen. Code, § 288, subd. (c)(1).) The jury acquitted defendant of two counts concerning P.D., one count concerning B.D., two counts concerning J.D., and one count concerning D.D.
The court sentenced defendant to an aggregate 18-year prison term, as follows: (1) a 12-year midterm sentence for continuous sexual abuse of P.D.; (2) a consecutive six-year midterm sentence for forcible rape of P.D.; and (3) concurrent terms on the remaining counts. We note that the court properly sentenced defendant to both continuous sexual abuse and separate sexual offenses. The period of continuous sexual abuse was from 1999 to 2001, when P.D. was under age 14. The rape occurred outside that period of time, in October 2003, when the girl was 15 years old. The separately charged lewd acts upon P.D. also occurred outside the time period covered by the charge for continuous sexual abuse.
III.
DISCUSSION
As noted above, defendant raises a single claim on appeal: that his trial defense attorney rendered ineffective assistance of counsel by mishandling evidence of jail conversations between defendant and defendant’s mother recorded at the time of trial. Specifically, defendant contends that defense counsel was deficient in (1) failing to review the recorded conversations (produced by the prosecution) before presenting defendant’s mother as a witness; (2) failing to object to the cross-examination of the mother concerning the conversations and other topics; and (3) opting to introduce one of the recordings in evidence to refute the prosecution’s characterization of the conversations. We turn now to a discussion of these claims, in which we conclude that defense counsel’s performance was deficient on the first matter but no others, and that the single deficiency was not prejudicial.
A. Ineffective assistance of counsel standards
We begin with an overview of the standards used to evaluate an ineffective assistance of counsel claim. “In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume 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.’ [Citation.] If the record ‘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 unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
B. Counsel’s failure to review the recorded conversations was deficient, but not prejudicial
As noted earlier, defendant telephoned his mother from jail several times during the progress of the trial. The conversations were recorded, as both parties knew. The prosecutor provided a CD of the intercepted calls to defense counsel on July 11, 2007, eight days before defense counsel called Williams to testify on July 19, 2007. As defense counsel later explained in a document filed with the court: “Defense counsel inquired at the time of delivery if there was anything in the CD which the Prosecution intended to rely upon, and was told that the Prosecutor had not listened to any of the CD as of that date. Defense counsel attempted to play the CD on several CD players and on his work computer but was unable to open it. No further mention of the CD or its contents was made.”
Defense counsel called Williams to testify on July 19, 2007 without having listened to her recorded conversations with defendant. During her cross-examination of Williams later that day, the prosecutor referred to the conversations, including the fact that Williams called P.D. “a fuck-up” and that defendant had described the trial testimony of other witnesses to Williams. Defense counsel later told the court that he “was at a considerable disadvantage [at that time] in having no idea of the substance of the conversations to which the Prosecutor was alluding.” The court recessed before the cross-examination was complete.
During the weekend recess, defense counsel “succeeded in opening the CD after trying several computers, and discovered it to contain in excess of four and one half hours of taped recorded telephone calls made by the Defendant from the county jail to his mother’s telephone number.” When court resumed on Monday, July 23, 2007, defense counsel explained his prior failure to listen to the conversations and requested that he be permitted to play one of the recordings in its entirety to correct what he saw as a mischaracterization of conversations that were innocent, and not designed to influence Williams’s testimony. (Evid. Code, § 356.) The court granted the request and the conversation was played for the jury. In the conversation, as described above, defendant informally discussed trial events and consistently asserted that his accusers were liars.
Defendant, through new counsel appointed on appeal, asserts that trial counsel was ineffective in presenting Williams’s testimony without reviewing the recorded telephone calls between Williams and defendant. The People respond that “although counsel claimed he did not know the ‘substance’ of the conversations when he presented Ms. Williams’s testimony, that does not establish that he was completely unaware of the issue discussed between [defendant] and his mother. Counsel knew the conversations occurred and, when he was unable to play the CD, might have asked either his client or Ms. Williams what was discussed in the calls. Had either or both told counsel that they discussed the case and [defendant’s] repeated claims of innocence, counsel could have made the decision to present Ms. Williams’s testimony without actually having heard the calls.”
We are not persuaded. First, when defense counsel told the court he had “no idea of the substance of the conversations,” he seems to have meant that he knew that conversations occurred but he did not know anything about their content. Second, even if we speculate that defense counsel “might” have learned something from defendant or Williams about the calls, the fact remains that there were hours of recorded conversations between defendant and Williams that defense counsel never reviewed. A discussion with the parties to a conversation about what was said is a poor substitute for listening to a verbatim recording of the conversation.
We conclude that defense counsel’s performance, in failing to review the recordings, fell below an objective standard of reasonableness under prevailing professional norms, and was thus deficient. In doing so, we acknowledge the difficult circumstances under which counsel was operating. He was in the middle of trial, the CD was difficult to open (a player application on the data CD must be activated before the recording files can be played), and counsel did not know that the recordings would be relied upon by the prosecutor. Nevertheless, a criminal defense attorney who receives jailhouse recordings between his client and the client’s mother does not act reasonably in presenting the mother as a witness without reviewing those recordings when preparing her for trial and possible impeachment. When defense counsel found that he was having technical difficulties and unable to listen to the recordings, he should have asked the prosecutor how to play the recordings or sought other assistance. It was not reasonable to simply ignore the recordings and proceed with Williams as a witness without knowing what she and defendant had said to one another.
While we conclude that defense counsel’s performance was deficient in this one matter, we agree with the People that the deficiency did not prejudice defendant. Defense counsel’s failure to listen to the recorded conversations had little impact on the examination and cross-examination of Williams. A fair reading of the record shows that the recordings did not play a significant part in the witness’s testimony. As defendant acknowledges on appeal, “[m]uch of the cross-examination did not deal with the taped jail calls at all....” But defendant insists that counsel’s failure to listen to the calls was nevertheless prejudicial. Defendant argues that a conscientious defense attorney who had reviewed the recorded conversations between defendant and Williams either would not have called Williams as a witness, or would have been able to object or otherwise to avoid areas of testimony that got the witness “in trouble” on cross-examination. The first argument (not calling Williams as a witness) rests on the claim that Williams was not a good witness for the defense, a claim we reject. Williams was an attractive witness—an articulate, hard-working woman who had a close relationship with her son and his family and was thus in a good position to provide meaningful character evidence.
In making the second argument (avoiding trouble spots), defendant overstates the “trouble” Williams faced on cross-examination from the prosecutor’s use of the recorded conversations. While Williams may have felt better prepared on cross-examination had defense counsel reviewed the recordings and discussed them with her, defense counsel’s awareness of the recordings would have done little to change the course of her testimony and cross-examination. For example, Williams’s reference to P.D. as “a fuck-up” was unavoidable evidence. Any testimony that Williams gave would have opened the issue of Williams’s feelings for P.D., and possible bias, and thus allowed the prosecutor to introduce Williams’s reference to P.D. as “a fuck-up.” (Evid. Code, § 780, subd. (f).) A defense attorney who had listened to the recordings could not have avoided this trouble spot. Nor would a fully prepared attorney have reasonably chosen to forego Williams as a witness to prevent introduction of the evidence. As we said, Williams was a good defense witness, and her seemingly harsh comment about P.D. was put in context by defense counsel who showed that Williams called P.D. “a fuck-up” because she had just learned that P.D. had been arrested for a criminal offense. Not only did defense counsel thus succeed in rehabilitating Williams, but counsel also succeeded in introducing damaging evidence about P.D., the chief prosecution witness.
Defense counsel was also adept at handling the prosecution’s point that Williams had received information about other witnesses’ testimony before she herself testified. Defense counsel objected to that line of questioning, and noted in front of the jury that “the Court’s order not to be present during the testimony of witnesses is not an order precluding people from talking about it.” On redirect examination, defense counsel ably showed that no one ever told Williams that she could not discuss the case with her son. Moreover, any suggestion that Williams’s familiarity with prior testimony permitted her to tailor her testimony was of little effect since Williams provided general character evidence, not detailed accounts of events that needed to fit with the accounts provided by prior witnesses. Also, the prosecution’s implied characterization of the conversations between defendant and Williams gave defense counsel the opportunity to request introduction of one of the recordings in its entirety. As we discuss later, the introduced conversation was largely favorable to the defense because it contained defendant’s repeated averments that his accusers were liars. Thus, while defense counsel’s performance was deficient in failing to listen to the recorded conversations between defendant and Williams before calling Williams as a witness, the deficiency was not prejudicial.
C. Counsel was not incompetent in failing to object to the cross-examination of Williams
Defendant also faults defense counsel for failing to object to the cross-examination of Williams concerning topics unrelated to the recorded conversations. Specifically, defendant maintains that defense counsel should have objected when the prosecutor asked the following questions: (1) “How many different women does your son have children with?,” and (2) “Did [defendant] Mr. Perry pay child support for all his children?” But counsel is not required to make futile objections (People v. Harpool (1984) 155 Cal.App.3d 877, 886), and there was no basis for objection here.
The questions were proper given Williams’s testimony under direct examination that defendant never appeared to have any difficulty forming relationships with women, defendant had good father-child relationships with P.D. and two of his sons, defendant did not work, and Williams had six biological grandchildren. The defense offered Williams as a character witness, and the prosecution was entitled to explore issues raised on direct examination, as well as the basis for the witness’s testimony and the extent of her knowledge of defendant’s character. (Evid. Code, §§ 761, 780, subd. (d), 1102.)
Williams’s testimony that defendant never appeared to have any difficulty forming relationships with women implied that defendant had healthy relationships with women. The prosecutor properly explored this issue by establishing that defendant, at age 33, had five children by five different women, which cast doubt on the health and stability of those relationships. The evidence also tended to prove that defendant was a “player,” as he told the police, or a philanderer who would not hesitate to make sexual advances to other females despite his existing relationship with his live-in girlfriend, Tracy. (Evid. Code, § 1101, subd. (b).)
Defendant’s failure to pay child support was also a fair subject of cross-examination given Williams’s testimony that defendant was a good father yet admittedly did not work. On direct examination, Williams said defendant had good relationships with P.D. and two of his sons. On cross-examination, the prosecutor asked Williams if defendant was a good father to all his children, and Williams said “I think so.” When asked what makes a good father, Williams mentioned taking an interest in his children and having discussions with them. It was then that the prosecutor asked if defendant paid child support for his children, which was a fair question to test Williams’s opinion that defendant was a good parent as financial support is commonly considered a prerequisite to good parenting.
Defendant’s appellate counsel also says that a disturbing ambiguity was created when Williams referred to one of her grandchildren as her “daughter’s daughter,” and defense counsel failed to clarify the ambiguity Appellate counsel suggests that the jury may have misunderstood the referenced granddaughter to be one of defendant’s children, which would imply that defendant committed incest. In fact, the record shows that Williams was simply stating that she had grandchildren from both her son (defendant) and her daughter. There is no ambiguity that required clarification by defense counsel at trial.
Moreover, even if the cross-examination was objectionable, defendant was not prejudiced by Williams’s testimony. The fact that defendant had children from multiple relationships and did not work were facts established long before Williams took the stand. The first witness to testify at trial was Tracy, and she testified that defendant did not work, had four or five children, had contact with only one child from a prior relationship, and was unfaithful to her.
Defendant’s many relationships and lack of financial responsibility were also subjects covered in defendant’s own testimony later in the trial. On cross-examination, defendant effectively admitted that he likes women to support him. “Q. Do you rely on women to support you? [¶] A. No, ma’am. [¶] Q. Do you like a woman who makes money? [¶] A. It helps.” The prosecutor then confronted defendant with his statement to the police that he was not interested in young girls because a girl lives at home with her mother and so could “do nothing” for him. Defendant confirmed the statement: “Correct, she can’t even buy you a steak dinner.” The prosecutor asked, “Or pay the rent?,” and defendant answered “However you see fit. They owe the rent at that.” It is impossible to credit defendant’s claim that his mother’s testimony damaged his character by suggesting that he was a “bum” who lived off women when defendant himself admitted, during his own testimony, that he liked women who make money and can pay the rent. Williams’s testimony did not prejudice defendant.
D. Counsel was not incompetent in putting a recorded conversation in evidence
Defendant’s final claim is that trial counsel was incompetent in opting to introduce in evidence one of the recorded conversations between defendant and Williams. It will be recalled that the prosecutor asked Williams about her conversations with defendant when cross-examining the witness and, in particular, pointed out that defendant told Williams what other witnesses had said at trial. Defense counsel complained to the court that the prosecutor’s references to the conversations between defendant and Williams gave the misimpression of an effort to tailor testimony, when the conversations were wholly innocent. Defense counsel asked that he be permitted to play the entire conversation from July 5, 2007 for the jury, to dispel the prosecutor’s misleading “innuendo” that Williams was tailoring her testimony to fit testimony from previous witnesses. (Evid. Code, § 356.) The court granted the request.
Defendant, through new counsel on appeal, now contends that his trial counsel was incompetent in making this request. At the outset, we note that the introduction of the conversation in evidence was the result of a deliberate strategic decision after review and transcription of the conversation and adequate time for reflection. Defense counsel was explicit on this point at trial, stating: “I would just like to make clear, Your Honor, that it’s my strategic judgment [to] play[] [the recorded telephone call], despite the fact that there are some items I wish I could remove, [but] in my opinion [playing the recording] is the only way to dispel the misleading innuendo that the jury has before it.”
Defendant faces a heavy burden in attempting to prove that defense counsel’s strategic decision was incompetent. “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (Strickland v. Washington (1984) 466 U.S. 668, 689.)
We conclude that defense counsel made a reasonable professional judgment in deciding to introduce the recorded conversation. When Williams was cross-examined, the prosecutor suggested that defendant and Williams had “extensive conversations about what each witness has said in this courtroom before [her] testimony” and extracted an admission from Williams that defendant relayed the “gist” of the testimony of various witnesses, including P.D. and Tracy. The recording was highly effective in dispelling any suggestion by the prosecution that defendant was coaching Williams or otherwise attempting to tailor her testimony to fit the testimony of prior witnesses. The recording shows no calculated effort to manufacture testimony but instead shows defendant giving an informal and anecdotal report of the progress of the trial to his concerned mother, along with defendant’s sarcastic critique of various witnesses whom he described as liars.
Defendant places undue emphasis on certain aspects of the conversation in arguing that it was more damaging then helpful. Defendant notes, for example, that his conversation included off-color language, insensitive portrayals of his accusers, and awkward references to several jurors. The recording did contain some raw and immature statements but, on balance, the recording was helpful to his case by dispelling the prosecution’s suggestion that Williams tailored her testimony to fit testimony from previous witnesses. The recording also had the added, and significant, benefit of presenting the jurors with defendant’s seemingly candid denouncements of his accusers as liars. Defense counsel was cognizant of this benefit in deciding to introduce the conversation in evidence, and he capitalized on it in his closing argument to the jury. In doing so, defense counsel understood that defendant’s sometimes distasteful remarks added to the credibility of his denouncements. As defense counsel told the jury: “Ordinarily I would not have been able to play for you that candid 38-minute conversation between [defendant] Kenneth Perry and his mother [Toni Williams]. But in order to clear up, to give you a chance to assess the insinuations that were in those questions to Toni Williams, you got to hear it. And you got to hear an absolutely extraordinary recording. For one thing, it was raw. It was unvarnished. There were parts of it that were embarrassing. There were parts of it that as Kenneth Perry’s lawyer I felt uncomfortable having you hear. But it was for those very reasons that it was so utterly believable.... [¶]... [¶] [W]hat can’t be denied is that you heard the unvarnished conversation of a man who was astounded at the lies that the parade of prosecution witnesses told from the witness box, although relieved and encouraged that they were being caught up in their lies....” (Italics added.)
In rebuttal, the prosecutor argued that the conversation showed only that defendant did not want to admit to his mother that he was a child molester.
Even if we were to second-guess defense counsel’s strategy and fault his introduction of the recording, any deficiency in counsel’s performance was not prejudicial. As the closing argument quoted above makes clear, the recording had substantial value in presenting the jury with defendant’s seemingly candid denouncements of his accusers. Appellate counsel for defendant does not deny this benefit but argues that the recorded telephone call had the undesired effect of “placing [defendant’s] insensitive, arrogant, sexually charged comments, in his own voice, before the jury.” But the recording was not the only time the jurors were introduced to defendant’s sometimes sarcastic and cavalier manner. Defendant testified at trial, which put his personality on plain display. The jury apparently was not distracted by personality issues and was able to focus dispassionately on the evidence before it. While convicting defendant of eight criminal offenses, it acquitted him of six. The mixed verdict refutes defendant’s suggestion that the jurors may have been personally offended by the recording, and acted out of that emotional reaction in rendering their verdict. Defendant has failed to demonstrate any prejudice from introduction of the recorded conversation between himself and his mother.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.