Summary
In People v. Kenneth Millard Pool (Jun. 10, 2011, F060131), this court reversed the conviction on count 2 due to insufficiency of the evidence.
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NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08901698, Wayne R. Ellison, Judge.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Kenneth Millard Pool of continuous sexual abuse of two of his wife’s grandchildren (Pen. Code, § 288.5), misdemeanor battery of another of his wife’s grandchildren (§ 242), and misdemeanor assault of his wife’s niece (§ 240). The trial court sentenced him under the “One Strike” law (§ 667.61) to concurrent terms of 15 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
Pool contends (1) he received ineffective assistance of counsel because defense counsel did not object when the prosecution’s expert witness offered improper opinions; (2) there was insufficient evidence to support one count of continuous sexual abuse of a child; and (3) his sentence violated the ex post facto clauses of the United States and California Constitutions.
The People concede there was insufficient evidence to support one of the section 288.5 counts. The People also concede that the One Strike sentence violates the ex post facto clause because at the time the offenses were committed Pool was not subject to the One Strike sentencing scheme.
We conclude the People’s concessions are appropriate and will reverse one conviction of section 288.5 and the One Strike sentence. We reject Pool’s claim of ineffective assistance of counsel and therefore affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL SUMMARY
We will discuss in detail the testimony relevant to the issues raised by the parties in the discussion portion of this opinion. In this section we will summarize the trial testimony, beginning with the testimony of the four victims, T., R., A., and C.
T. was a senior in high school at the time of trial. She is the granddaughter of Pool’s wife (hereafter grandmother or aunt). When T. was in the third grade, she and her brother would go after school to the house that Pool shared with her grandmother. T. described two types of incidents involving Pool that occurred while she was in the bedroom watching television. In one type of incident, Pool would enter the room, sit next to her, and put his hand on her breasts and/or vagina. In a second type of incident, Pool would stand in front of her and make her put her hand on his penis.
In addition, T. described a game she played with Pool. Pool would get on his hands and knees and T. would get on his back, like she was riding a horse. Pool would then crawl into the kitchen and force T. to get off. He would then put his hand on her breast and/or vagina. T. would then get back on Pool’s back, and he would return to the living room area where T.’s brother was waiting for his turn to ride Pool.
T.’s brother, R., testified that he had been molested by Pool. R. was a sophomore in high school at the time of trial. When R. was four or five, Pool came into the bathroom while he was showering and began stroking his (R.’s) penis. R. also described being forced to take off his clothes and get on Pool’s back while Pool was on his hands and knees. Pool would then take R. into the kitchen, put butter on his (Pool’s) anus, and instruct R. to put his penis in Pool’s anus. When R. walked away, Pool got on top of T. On another occasion, Pool forced R. to put his hands on Pool’s penis and masturbate him. R. claimed these events occurred when he was between the ages of three and six or seven.
A. was 15 years old at the time of trial. A. is grandmother’s grandson. There were times when A. would visit his grandmother and Pool also would be present. When A. was about five, he was playing on the computer. Pool came into the room, unbuttoned A.’s pants, and then orally copulated A. That was the only time A. could recall that happening. A. also recalled Pool rubbing his penis against his (A.’s) buttocks. He could recall that occurring on only one occasion. The two incidents did not happen at the same time but did occur on the same day.
C. was 10 years old at the time of trial. Pool is married to her aunt. When she was seven and in the second grade, C. visited her aunt and Pool at their apartment. While C. was playing on the computer, Pool came into the room and put his hand down her shirt. He returned to the room a short while later and put his hand down her pants and touched her vagina.
A forensic computer examiner from the Fresno Police Department examined computers and external hard drives seized from Pool’s home and found several video’s depicting child pornography that had been deleted, as well as the names of numerous files that had been erased or corrupted that reflected the original content also was child pornography.
Pool testified that he never had sexual contact with any of the children and denied any inappropriate contact with them.
The first amended information charged Pool with two counts of committing a lewd act upon a child, in violation of section 288, subdivision (a) (victims C. and A.), and two counts of continuous sexual abuse of a child, in violation of section 288.5 (victims T. and R.). The jury found Pool guilty of the two counts of continuous sexual abuse of T. and R., in violation of section 288.5, guilty of the lesser included offense of misdemeanor assault of C., in violation of section 240, and guilty of the lesser included offense of misdemeanor battery of A., in violation of section 242. In addition, the jury found true the allegation that Pool continuously had sexually abused more than one victim within the meaning of section 667.61, subdivision (e)(4).
The trial court sentenced Pool to concurrent terms of 15 years to life on the two violations of section 288.5 and to time served on the two misdemeanor counts.
DISCUSSION
I. Ineffective Assistance of Counsel
As a result of concessions by the People, the only contested issue in this case arises from the testimony of the People’s expert witness, Dr. Randall Robinson.
Robinson is a clinical psychologist. She testified about child sexual abuse accommodation syndrome (CSAAS). Robinson explained that CSAAS is the term used to describe the reaction of children when they have been abused. Typically, children tend not to report abuse and, when they do disclose, they do so incrementally, with more details being disclosed over time. It is not uncommon for children later to retract the allegations they have made.
Robinson also opined that children overwhelmingly do not report abuse falsely. When asked about incremental reporting, Robinson explained that as a child feels safe and secure with the investigator, the child will tend to add details that previously were omitted, but which are not fabricated.
Robinson responded to a question about whether children report abuse falsely as follows: “My opinion is that overwhelmingly children don’t report this falsely. Children are inclined to make up things that make them feel good about themselves. They are not inclined to talk about things about which they feel shame and guilt.”
Robinson responded to a question about incremental reporting as follows: “By definition ‘incremental’ means that there is a gradual … addition of information. So when a child feels safe, a child feels secure with the investigator or questioner or pastor, teacher, attorney or whatever, the child will incrementally disclose, not fabricating anything, but simply filling in the outline.”
Robinson acknowledged that she had not met or spoken to any of the victims in this case. She also acknowledged that children sometimes fabricate or lie, but not about something that makes them feel shameful. She also acknowledged that there have been articles written about children who falsely have reported being abused.
In response to a question on cross-examination about whether children lie, Robinson testified: “Children lie to impress people. They lie about their batting average, their grades, their parent’s income, how tall they are. They don’t lie about things that make them feel creepy and guilty and shameful.”
Pool asserts Robinson’s statements about children not fabricating claims of abuse were objectionable as improper opinions about the children’s veracity. Pool argues that he received ineffective assistance of counsel because defense counsel failed to object to the comments and failed to move to have the comments stricken from the record.
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
The first prong of the two-part test requires Pool to show that defense counsel’s actions fell below an objective standard of reasonableness. Defense counsel was not asked on the record why he did not object to Robinson’s statements. Therefore, we will reject the claim of ineffective assistance of counsel unless there is no possible satisfactory explanation for the failure to object.
In evaluating such claims, Pool faces a high hurdle. “Generally, failure to make objections is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] ‘[C]ounsel’s conduct should not be judged by appellate courts in the harsh light of hindsight … and except in rare cases, an appellate court should not attempt to second-guess trial counsel.’ [Citation.] ‘It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively… Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.’ [Citations.]” (People v. Lanphear (1980) 26 Cal.3d 814, 828-829.)
We do not agree with Pool’s assessment of defense counsel’s performance. The statements Pool now finds objectionable were made during direct examination. On cross-examination defense counsel established that Robinson’s statements were based on her limited clinical experience, and that there were reports of false allegations of abuse by children. Defense counsel also established that Robinson had not interviewed the children and thus could not opine on the veracity of these children.
It is true that Robinson attempted to minimize the reports of false allegations of abuse and steadfastly stood by her statements. It also is true the statements are not part of CSAAS, and therefore her testimony may have been outside of the trial court’s in limine ruling limiting her testimony.
When the statements were made, however, defense counsel could not have known the extent of Robinson’s obstinacy. Defense counsel reasonably may have anticipated that Robinson would admit that children have made false reports of sexual abuse in the past and believed that bringing up that possibility during Robinson’s testimony would be an effective way of conditioning the jury to find that these children may have been making false reports, Pool’s only defense to the charges. That the decision not to object did not turn out as well as anticipated is irrelevant, as we do not judge defense counsel’s choice of tactics through the harsh light of hindsight. Instead, we look to see if defense counsel made a choice of tactics that fell within the reasonable range of choices when the decision was made. Because there was a logical and rational basis for not objecting to the disputed testimony, defense counsel’s decision not to object clearly fell within the reasonable range of choices when he decided not to object. Therefore, we conclude there is a satisfactory explanation for the failure to object, and we must reject the claim of ineffective assistance of counsel.
We also conclude Pool cannot meet the second prong of the test because he cannot establish that if the testimony had been struck from the record, there is a reasonable probability he would have achieved a better result. Robinson admitted she had not examined any of the victims, therefore limiting her testimony to general statements. She also admitted that there have been occasions in professional literature that documented false reports of sexual abuse by children. These facts limit the impact that Robinson’s statements would have on the jury. Moreover, while Robinson’s testimony was minimally discussed during closing argument, there was no reference to these statements.
We acknowledge that Pool’s defense to these charges was that he did not touch these children in a sexual manner, thus reducing the trial to a credibility contest between Pool and the children. Pool’s credibility, however, was severely damaged when he could provide no believable explanation for the numerous videos of child pornography downloaded from the Internet to his computer. His assertion that perhaps the children or his brother-in-law may have downloaded the images apparently was rejected by the jury, possibly because the explanation strained credulity.
Similarly unbelievable was his claim that the images may have been downloaded accidentally. If there had been a few pornographic downloads, this explanation may have been more believable. There was evidence, however, of over 70 videos that had been downloaded at one point onto Pool’s computer. It is unlikely that this number of videos were downloaded accidentally. That all of the videos had been downloaded in 2005, and all had been deleted, does not change our analysis. Pool may have chosen a less detectable method of downloading files, or may have stored such images in a location undetected during the search of his residence. The point is that there are far too many possible explanations for not discovering more images, or more recent images, to discount those that were discovered.
The credibility of the children also was enhanced because there were four victims, not just one. Moreover, the three older victims did not come forward in an attempt to harm Pool. T., R., and A. did not mention their allegations until C. came forward. After C. made her allegations, T., R., and A. were questioned by their parents, and only then admitted the abuse. Each denied discussing the issue with any of the other victims, and there was no evidence to contradict this assertion. Moreover, some type of conspiracy seems unlikely since T. and R. live in Northern California and A. does not. Finally, if there was some sort of vendetta against Pool, it seems likely that the children would have come forward sooner and not waited until C. made an allegation.
For all of these reasons, we conclude that it is not reasonably probable that Pool would have obtained a better result if Robinson’s statements had been stricken from the record.
II. Sufficiency of the Evidence
In count 2 of the amended information, Pool was charged with the continuous sexual abuse of T., in violation of section 288.5. To convict Pool of a violation of this statute, the prosecution was required to prove beyond a reasonable doubt that (1) Pool either resided with T. or had recurring access to her; (2) Pool engaged in three or more acts of substantial sexual conduct with her; (3) T. was under 14 years of age at the time of the acts of substantial sexual conduct; and (4) that the offenses occurred over a period of at least three months. (§ 288.5, subd. (a).) Pool argues, and the People concede, that there was insufficient evidence of the fourth element of the offense -- that the acts of substantial sexual conduct occurred over a period of time of at least three months.
To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Id. at p. 396.) In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury reasonably could have deduced from the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Credibility issues are determined by the jury. (Ibid.)
The only evidence about the timeframe in which T. was molested was presented by T. Hence, we will thus review her testimony in detail.
T. was a senior in high school at the time of trial. Pool is married to her grandmother. When T. was in the third grade, sometime around 1999 or 2000, she would visit the house in which her grandmother and Pool lived. She also would go to the house after school. On one occasion, T. was watching television in her grandmother’s bedroom when Pool came into the room and sat down next to her. Pool then started touching T.’s chest. His hand was over her clothes. Pool left the room shortly thereafter and T. resumed watching television.
On another occasion, Pool came into the bedroom while T. was watching television and he touched her breasts and vagina. This time Pool put his hand under her shirt, but touched her vagina over her clothes. The incident lasted for a couple of minutes. This incident occurred while T. was in the third grade, “Like around still the exact same age.”
T. also recalled playing a game with Pool where he would get down on his hands and knees and she would get on his back. Pool would then crawl around to the kitchen. While in the kitchen, Pool touched T.’s breasts and vagina. Pool put his hand under T.’s shirt and pants when touching her. T. would then get onto Pool’s back again and he would crawl around some more. T. was the “same age” when this incident occurred. She probably played this game with Pool more than 10 times. T. did not tell anyone about these incidents because Pool was her grandfather and she thought they were playing a game.
After reviewing the police report to refresh her memory, T. recalled another type of conduct with Pool. When she was in the bedroom watching television, Pool would come into the room, stand in front of her, unbutton his pants, and put her hand on his penis. This occurred when she was “[t]he same exact age, seven or eight in third grade.” This occurred on a couple of occasions.
Approximately two years before trial, T.’s mother asked her if anything had happened with Pool, and that was when T. first told her about the incidents.
This summary establishes the lack of evidence of any timeframe for the acts of molestation. While T. was able to describe the various incidents committed by Pool, she claimed each event occurred in the same time period -- while she was seven or eight and in the third grade. T. did not provide any other timeframe for the incidents, nor was there any reference to an outside event, such as a holiday, birthday, or even the time or season of the year. In other words, it was impossible for the jury to determine if the acts occurred over a period of a few days, a few weeks, or a few months.
Both the California and United States Constitutions require that every element of an offense must be tried to a jury and proven beyond a reasonable doubt. (People v. Anderson (2009) 47 Cal.4th 92, 119.) The absence of any evidence to establish the fourth element of a violation of section 288.5 requires reversal of the judgment on this count. (People v. Belton (1979) 23 Cal.3d 516, 526-527.) Because the judgment is reversed for insufficiency of the evidence, the People are prohibited from retrying the count by the double jeopardy clause found in the Fifth Amendment of the United States Constitution. (Burks v. United States (1978) 437 U.S. 1, 11.)
III. Ex Post Facto
A violation of section 288.5 normally results in a sentence of six, 12, or 16 years in prison. (§ 288.5, subd. (a).) Pool, however, was sentenced under section 667.61, commonly referred to as the One Strike law, to a prison term of 15 years to life. Section 667.61, subdivision (b) is the provision relied on by the trial court. This subdivision mandates a term of 15 years to life if the defendant is convicted of committing a crime listed in subdivision (c) of section 667.61 and one of the circumstances listed in subdivision (e) of section 667.61 also is found to be true. As applicable to this case, a sentence of 15 years to life was imposed because Pool was convicted of violating section 288.5 (§ 667.61, subd. (c)(9)) and he also was convicted in the same case of violating section 288.5 with another victim (§ 667.61, subd. (e)(4)).
As the People concede, this sentence cannot stand for two reasons. First, section 667.61, subdivision (e)(4) establishes a multiple victim circumstance. It applies if “The defendant has been convicted in the present case … of committing an offense specified in [section 667.61] subdivision (c) against more than one victim.” (Ibid.) At the sentencing hearing, Pool stood convicted of violating section 288.5, which is listed in section 667.61, subdivision (c)(9), in two counts, one count for T. and one count for R., thus placing him squarely within subdivision (e)(4) of section 667.61. We, however, have reversed the section 288.5 conviction for the acts against T. Accordingly, Pool now stands convicted of only one count of violating section 288.5. None of his other convictions are listed in section 667.61, subdivision (c). Since section 667.61, subdivision (e)(4) applies only if a defendant is convicted of two crimes listed in subdivision (c) of section 667.61, that circumstance no longer applies. Since no other circumstance listed in section 667.61, subdivision (e) applies, Pool is not subject to a One Strike sentence.
In addition, as the People concede, even if we had not reversed the section 288.5 conviction based on Pool’s actions with T., Pool would not be subject to a One Strike sentence because to do so would violate the ex post facto clauses of the federal and state Constitutions.
The United States Constitution (art. I, § 10, cl. 1) and the California Constitution (art. I, § 9) both contain clauses prohibiting ex post facto laws. These clauses are identical in relevant part (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295), and the state clause is interpreted “‘no differently’” than the federal clause. (People v. Grant (1999) 20 Cal.4th 150, 158 (Grant).)
The ex post facto clause prohibits a state from passing any penal statute that disadvantages an offender affected by the new law. (Collins v. Youngblood (1990) 497 U.S. 37, 41 (Collins).) “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” (Weaver v. Graham (1980) 450 U.S. 24, 30 (Weaver).) The ex post facto clause was included in the Constitution to prevent federal and state legislatures from enacting “arbitrary or vindictive legislation, ” to give individuals fair warning of the effect of legislative enactments, and to allow individuals to rely on the meaning of laws unless they explicitly are changed. (Miller v. Florida (1987) 482 U.S. 423, 430 (Miller).)
Courts employ a two-step analysis when determining whether a law violates the ex post facto clause. The first step is to determine if the law applies retrospectively. (Lynce v. Mathis (1997) 519 U.S. 433, 441 (Lynce); In re E.J. (2010) 47 Cal.4th 1258, 1279 (E.J.).) The second step is to determine if the law disadvantages the defendant. (Lynce, at p. 441; E.J., at p. 1279.)
A law applies retrospectively if it applies to events that occurred before the law was enacted. (Weaver, supra, 450 U.S. at p. 29; E.J., supra, 47 Cal.4th at p. 1279.) “A retrospective law violates the ex post facto clauses when it ‘substantially alters the consequences attached to a crime already completed, and therefore changes “the quantum of punishment.”’ ([Weaver]at p. 33, citing Dobbert v. Florida (1977) 432 U.S. 282.)” (In re Ramirez (1985) 39 Cal.3d 931, 936 (Ramirez).) In other words, a “law is retrospective if it ‘changes the legal consequences of acts completed before its effective date.’ [Citation.]” (Miller, supra, 482 U.S. at p. 430.)
A law disadvantages a defendant if it (1) punishes as a crime an act previously committed, which was innocent when done, (2) makes more burdensome the punishment for a crime after it was committed, or (3) deprives a defendant of any defense available according to the law at the time the act was committed. (Collins, supra, 497 U.S. at p. 52.)
The acts of molestation described by R. occurred no later than 2001. R. explained that these acts occurred during the years he was four or five, with the last act occurring when he was six or seven. R. was born in December 1993. Therefore, he would have been seven between December 24, 2000, and December 23, 2001. Section 667.61, subdivision (c) did not list a violation of section 288.5 as an offense that would qualify a defendant for sentencing under the One Strike law until September 20, 2006. (Stats. 2006, ch. 337, § 33.) Therefore, all acts of molestation on which the section 288.5 conviction was based occurred before a violation of section 288.5 could be sentenced under the One Strike law.
Because the trial court applied the 2006 amendment to section 667.61 to crimes committed by Pool before the amendment was enacted, the law was applied retrospectively. Moreover, because sentencing under the 2006 amendment to section 667.61 increased the punishment imposed on Pool (term of 15 years to life instead of a maximum term of 16 years), the law also disadvantaged Pool. Thus, application of section 667.61 to Pool violated the ex post facto clause of both the United States and California Constitutions.
DISPOSITION
The judgment on count 2 for violation of section 288.5 is reversed. The sentence is vacated and the matter is remanded for resentencing.
WE CONCUR: DETJEN, J., FRANSON, J.