Opinion
C081108
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. HERNANI RAMOS RAMOS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F01905)
A jury found defendant Hernani Ramos Ramos guilty of 10 counts of committing a lewd or lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The trial court sentenced him to an aggregate term of 18 years in state prison.
On appeal, defendant contends the trial court erred in excluding character evidence, and in failing to instruct the jury on character evidence pursuant to CALCRIM No. 350. Alternatively, defendant contends that, to the extent his claims of error are deemed waived, trial counsel rendered ineffective assistance. Finally, defendant contends that the amended abstract of judgment contains clerical errors that must be corrected.
We will affirm the judgment and direct the trial court to correct the errors in the amended abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issues raised on appeal, a detailed recitation of the underlying facts and procedural history of this case is unnecessary. It is sufficient to say that the daughter of a relative, T.D., accused defendant of committing numerous lewd or lascivious acts upon her from the time she was five or six years old until she was nine or 10 years old. When T.D.'s mother found out about defendant's conduct, she called a family meeting. Various family members attended that meeting, including T.D.'s uncle, C.P. After the family meeting, defendant called C.P. and said that the sexual abuse allegations made by T.D. were not true. He also claimed that T.D. had attempted to unzip his pants one time while he was napping in his car during a birthday party.
At trial, C.P. testified as a prosecution witness. During cross-examination, C.P. said that he was in shock when he heard about the sexual abuse allegations, and that everybody at the family meeting was in shock. When defense counsel asked C.P. whether he had ever noticed defendant acting inappropriately with C.P.'s children, the prosecutor objected on the grounds of relevance, and the trial court sustained the objection. Defendant's counsel subsequently asked C.P. whether he had ever seen defendant act inappropriately with T.D. C.P. answered, "No."
At the close of trial, defense counsel requested the court instruct the jury with CALCRIM No. 350 regarding character evidence. Although defense counsel admitted that he had not "technically" presented any character evidence from people who knew defendant, he requested the instruction because C.P. had testified that he had not seen defendant act inappropriately around children, including C.P.'s own children. Alternatively, defense counsel requested the last paragraph of CALCRIM No. 350. The trial court refused to instruct the jury with any portion of CALCRIM No. 350, reasoning that no character evidence had been introduced regarding defendant's reputation or his character traits.
A jury found defendant guilty of 10 counts of committing a lewd or lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The trial court sentenced him to an aggregate term of 18 years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
1.0 Exclusion of Character Evidence
Defendant contends the trial court erred in excluding character evidence. According to defendant, the trial court's refusal to permit counsel to elicit testimony from C.P. regarding his opinion about defendant's good moral character in sexual matters was arbitrary and capricious and resulted in a manifest miscarriage of justice. Defendant asserts that trial counsel should have been allowed to question C.P. about the relevant character trait of defendant's consistently normal behavior with children and elicit an opinion about it.
Evidence Code section 1102 provides an exception to the general rule prohibiting the use of character evidence to prove a defendant's conduct on a specific occasion. (Id., § 1101, subd. (a).) Under section 1102, "evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation" is not made inadmissible by Evidence Code section 1101 in a criminal action if the evidence is "[o]ffered by the defendant to prove his conduct in conformity with such character or trait of character" (id., § 1102, subd. (a)).
"This exception allows a criminal defendant to introduce evidence, either by opinion or reputation, of his character or a trait of his character that is 'relevant to the charge made against him.' [Citation.] . . . In appropriate cases, such circumstantial evidence 'may be enough to raise a reasonable doubt in the mind of the trier of fact concerning the defendant's guilt.' ([Citation]; see also Michelson v. United States (1948) 335 U.S. 469, 476 [93 L.Ed. 168, 174].)" (People v. McAlpin (1991) 53 Cal.3d 1289, 1305 (McAlpin).)
Opinion evidence of a defendant's character trait as not being a sexual deviant may be introduced by lay testimony when it is based on the witness's personal observation of the defendant's course of behavior. (McAlpin, supra, 53 Cal.3d at pp. 1305-1311 [reversing a conviction because the trial court had erroneously excluded the testimony of three witnesses who were prepared to testify, in a lewd conduct case, that the defendant had a reputation for having normal sexual tastes and was regarded as a person of high moral character].) " 'Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others.' " (People v. Felix (1999) 70 Cal.App.4th 426, 430.)
Prior to trial, defendant did not give notice that he intended to proffer evidence of his good character inconsistent with the charged offenses. During trial, defendant did not call any witness to testify in the form of an opinion as to his character or a trait of his character. Instead, on cross-examination of C.P., defense counsel asked C.P. whether he had ever seen defendant act inappropriately towards C.P.'s children. When the trial court sustained the prosecutor's objection to this question on relevance grounds, defense counsel did not argue that the testimony was admissible because he was attempting to lay a foundation to elicit opinion evidence of defendant's character as not being a sexual deviant. Accordingly, defendant's failure to raise this theory of admissibility at trial forfeited the claim on review. (People v. Casares (2016) 62 Cal.4th 808, 830.) We reject defendant's contention that his failure to object should be excused because an objection would have been futile. The record does not support this claim.
2.0 Instructional Error
Defendant contends the trial court erred in failing to instruct the jury on character evidence pursuant to CALCRIM No. 350. According to defendant, an instruction on character evidence was appropriate because he introduced evidence at trial that was the "functional equivalent" of character evidence. We disagree.
CALCRIM No. 350 instructs a jury that evidence of a defendant's particular character trait may, by itself, create a reasonable doubt as to the defendant's guilt. Upon request, a defendant is entitled to an instruction informing the jury that opinion or reputation evidence of one of the defendant's good character traits offered to prove the defendant acted in conformity with that trait should be weighed as any other fact established, and that such evidence may be sufficient to create a reasonable doubt as to his guilt. (People v. Bell (1875) 49 Cal. 485, 490; see Evid. Code, § 1102, subd. (a); see also People v. Jones (1954) 42 Cal.2d 219, 224 ["Proof of the good character of the defendant may be considered as a fact tending to rebut the truth of testimony of an incriminatory character which is sufficient to establish the truth of the charge against him."].) However, the trial court has no duty to instruct on an aspect of the defense that is not supported by substantial evidence. (People v. Bohana (2000) 84 Cal.App.4th 360, 370.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) We independently review whether there was substantial evidence in the record to support the giving of a requested instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
CALCRIM No. 350 provides: "You have heard character testimony that the defendant (is a __________ <insert character trait relevant to crime[s] committed> person/ [or] has a good reputation for __________ <insert character trait relevant to crime[s] committed> in the community where (he/she) lives or works). [¶] Evidence of the defendant's character for __________ <insert character trait relevant to crime[s] committed> can by itself create a reasonable doubt [whether the defendant committed __________ <insert name[s] of alleged offenses[s] and count[s], e.g., battery, as charged in Count 1>]. However, evidence of the defendant's good character may be countered by evidence of (his/her) bad character for the same trait. You must decide the meaning and importance of the character evidence. [¶] [If the defendant's character for certain traits has not been discussed among those who know (him/her), you may assume that (his/her) character for those traits is good.] [¶] You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt."
We conclude the trial court did not err in refusing to instruct the jury with CALCRIM No. 350. The instruction was not supported by substantial evidence. Defendant did not introduce any evidence of his good character in the form of an opinion or evidence of his reputation in the community. Contrary to defendant's contention, C.P. did not testify as to defendant's reputation or offer an opinion regarding defendant's character inconsistent with the charged offenses. C.P.'s testimony that he had known defendant for a long time and had not observed him act inappropriately with T.D. is not character evidence in the form of an opinion. Further, the fact that C.P. was shocked by the sexual abuse allegations is not evidence of defendant's character. There is nothing in the record explaining why C.P. was shocked. Finally, C.P.'s testimony that children were permitted to be out of the sight of their parents at family gatherings because the parents did not believe they were in any danger, is not the "functional equivalent" of reputation evidence. Accordingly, because no character evidence was introduced, the trial court properly rejected defendant's request to instruct the jury pursuant to CALCRIM No. 350.
3.0 Ineffective Assistance of Counsel
We reject defendant's argument that trial counsel rendered ineffective assistance by failing to properly elicit character evidence from C.P.
To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. (People v. Maury (2003) 30 Cal.4th 342, 389.) To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. (Ibid.)
We conclude defendant has failed to meet his burden of establishing that trial counsel was ineffective. There is no express explanation for the challenged aspect of trial counsel's representation. On this record, we cannot conclude that there is no satisfactory explanation for the challenged conduct. Counsel could have reasonably concluded that it was tactically unwise to introduce character evidence and allow the prosecutor to present like evidence in rebuttal to show likelihood of guilt. (See People v. Tuggles (2009) 179 Cal.App.4th 339, 357 ["A defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense."].) Because deficient performance is not shown, there is no need to address prejudice.
As Justice Broussard cautioned in his McAlpin dissent, "a defendant's introduction of good character evidence is by no means a risk-free proposition. 'Two grave risks face the criminal defendant who chooses to . . . offer[] evidence of [his] good character. The first and most serious risk . . . arises when the prosecutor cross-examines the defendant's character witnesses. . . . [W]hen cross-examining either a reputation or opinion witness, the prosecutor can inquire about specific acts in the defendant's past to assess the value of the reputation or opinion testimony. . . . [Although in] theory, the trier of fact cannot use the prosecutor's questions about specific acts as evidence that the acts occurred . . . [and] upon request, the defendant is entitled to a limiting jury instruction[,] . . . [it is well recognized] that jurors probably cannot follow a judge's instruction not to use the question and responses about specific acts as evidence that the acts did occur. . . . The second risk is [that] . . . the prosecutor can call rebuttal witnesses to testify that the defendant's character is bad. As Justice Jackson explained in Michelson, a part of "[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him." [Citation.] Accordingly, as the Court of Appeal explained in People v. Pangelina (1984) 153 Cal.App.3d 1, 8: 'For [these] reason[s], most experienced criminal lawyers do not present character evidence unless their client's reputation is unassailable.' " (McAlpin, supra, 53 Cal.3d at p. 1315 (dis. opn. of Broussard, J.).) --------
4.0 Abstract of Judgment
Defendant contends the February 5, 2016 amended abstract of judgment contains errors that must be corrected. The People agree the abstract is incorrect, and we concur.
At sentencing, the trial court awarded defendant 713 days of presentence credit, consisting of 620 actual days in custody and 93 days of earned credit. However, both the original and amended abstracts of judgment reflect that defendant was awarded 144 days of presentence credit, consisting of 72 actual days and 72 days of earned credit. In addition, while judgment and sentencing occurred on January 8, 2016, both abstracts reflect at item 16 that it occurred on October 8, 2016. Finally, both abstracts indicate that defendant's race/national origin is "Black" but the record reflects that he is Filipino.
" '[A] court has the inherent power to correct clerical errors in its records so as to make th[o]se records reflect the true facts.' " (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will "order the trial court to correct the abstract of judgment" accordingly. (Id. at p. 188.)
DISPOSITION
The trial court is directed to correct the amended abstract of judgment to reflect that defendant was awarded 713 days of presentence credit (620 actual days and 93 conduct days), that judgment and sentencing occurred on January 8, 2016, and that defendant's race/national origin is Filipino. It shall then forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. DUARTE, J.