Opinion
E065810
01-06-2017
THE PEOPLE, Plaintiff and Respondent, v. PATRICK RUSSELL READY, Defendant and Appellant.
Patrick Russell Ready, in pro. per.; and Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1409745) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Patrick Russell Ready, in pro. per.; and Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant, Patrick Russell Ready, of oral copulation of a person 10 years of age or younger (count 1; Pen. Code, § 288.7, subd. (b)), two counts of attempted sodomy of a person 10 years of age or younger (counts 2-3; Pen. Code, §§ 664, 288.7, subd. (a)), and two counts of lewd and lascivious acts on a child under the age of 14 years (counts 4-5; Pen. Code, § 288, subd. (a)). After defendant filed a notice of appeal, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a statement of the facts.
Defendant was offered the opportunity to file a personal supplemental brief, which he has done. In his brief, defendant raises numerous issues, including the following: (1) the purported negligent manner of the police investigation; (2) several complaints regarding purported violations of the rules of evidence with respect to questions asked of the victim; (3) claimed prosecutorial misconduct; (4) purported errors in the instructions given to the jury; and (5) ineffective assistance of counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim testified that on July 21, 2014, she was on her loft bed watching videos on her tablet. Her stepfather came into the room and told her to get down off her loft bed and onto the lower bed; she obeyed. Defendant told the victim to remove her pajama bottoms and underwear. She complied. Defendant told the victim to get down on all fours like a cat; she did so. Defendant then touched her genitalia with his tongue.
The victim was nine years old on the date of the incident.
The victim's mother woke up. Defendant told the victim to put her pajama bottoms back on and get underneath the blanket. Defendant told the victim's mother that he and the victim were watching videos together on the victim's tablet. The victim was afraid her mother would be mad at her; she believed she was partly to blame for the things that had happened. Her mother hugged her, started crying, and told defendant to get out of the house. Her mother then called the police.
The victim testified that on more than five occasions defendant had similarly touched her on her bed at night. On all the occasions defendant told the victim to get into a catlike position and contacted her bare skin with his bare skin.
He touched her chest with his hands more than once. Defendant had previously touched the victim's genitalia. He had previously touched her anus with his erect penis.
Defendant had tried to push his penis inside the victim's anus on more than five occasions. It made her anus hurt. The victim would try to pull away, but defendant would tell her to stop moving. If she kept moving, he would either stop her from moving with his hand on her back or stop what he was doing and lick her. On multiple occasions the victim would feel something wet on her back when he finished. Defendant would then wipe the wetness off with a baby wipe. Defendant told the victim not to tell anyone what he was doing on more than one occasion.
The victim's mother testified that she went to sleep that night around 10:00 p.m. Defendant was in bed next to her on his iPad. A little more than an hour later, she awoke; she noticed defendant was not in bed. The victim's mother got up and looked for him; she saw him exit the victim's room. She asked him what he was doing in the victim's room. Defendant said the victim was having trouble sleeping and that he was watching a movie with her on her tablet.
The victim's mother went into the victim's room where she found the victim in the lower bed rather than the loft where she normally slept. The victim had her pajama bottoms in her hand. The victim's mother asked what was going on. The victim started crying and said to ask defendant. The victim's mother asked why she had to ask defendant; the victim said because defendant told her not to say anything. The victim's mother began crying. She called the victim's father and the police.
The victim's father received the call sometime after 11:00 p.m. that night. He drove the three miles from his residence to their home. The victim's father spoke briefly with the victim; the victim told him defendant had touched her inappropriately. The victim's father asked her where defendant had touched her; she pointed to her vagina. The victim said defendant had touched her there and tried to do so with his privates too, but she had squirmed away.
The victim's father asked her if this was the first time defendant had touched her in that manner; the victim said he had done so many times. The victim's father asked her why she had never said anything about it before; she told him defendant told her not to tell anyone.
A police officer received a dispatch call to respond to the victim's residence on July 21, 2014, at 11:52 p.m. He interviewed the victim, the victim's mother, the victim's father, and defendant. The officer collected the victim's clothing, defendant's clothing, blankets, linens, and sheets. A medical doctor examined the victim on July 22, 2014. The doctor swabbed the victim's labia majora, labia minora, and perianal area. The victim pointed to her genitalia when asked if she had been licked. No semen or saliva was found on the victim.
Biological swabs of the victim were taken on July 22, 2014, and defendant on July 29, 2015. Defendant "and all patrilineally related male relatives [could not] be excluded as a possible source of the male DNA detected on the external genitalia swabs, vulva swabs, and perianal swab" from the victim. Only one type of male DNA had been detected on the victim.
The People played the video recording of a forensic interview conducted with the victim on July 23, 2014 for the jury. In the video, the victim informed the interviewer that defendant had touched her in inappropriate places on more than one occasion. Defendant told her not to tell anyone.
The previous night, defendant had told her to get down off her loft bed and onto the bottom bed. He told her to take off her pants and underwear; she did so. Defendant told the victim to get on her hands and knees like a cat; she obeyed. He then licked her "privates."
Defendant took off his underwear and tried to "shove" his penis inside her butt. It "hurt a lot"; she kept trying to squirm away. Defendant put his hand on the victim's back to keep her from "squirming away."
The victim's mother woke up. Defendant told the victim to put her pants and underwear back on and get under the blanket. He told the victim's mother that they were watching videos on the victim's tablet. The victim's mother saw that the victim did not have on her pajama bottoms. The victim's mother then called the victim's father and the police. Defendant testified that he never touched the victim inappropriately.
II. DISCUSSION
A. Investigation
Defendant contends that the police officer conducted a negligent and prejudicial investigation because he failed to obtain the victim's tablet, collect defendant's clothing, and collect samples of defendant for foreign DNA. We disagree.
The officer testified he did collect defendant's clothing.
First, defendant failed to object on any of these bases during trial and, therefore, has forfeited the issue on appeal. (People v. Clark (2016) 63 Cal.4th 522, 552.) Second, defendant fails to show how he was prejudiced by the purported failure to collect this evidence.
For instance, the victim's mother testified she saw defendant exit the victim's room with the victim's tablet and that he told her he and the victim were watching videos together. The victim's mother did not believe him because she looked at the tablet and noted that it reflected that "there were three opened cartoons all within a minute apart." "So if he had been in there watching movies with her, there was no possible way in my mind that she could have watched them if they were only opened a few minutes prior." The victim informed the forensic interviewer defendant lied about them watching videos on the tablet. The victim said she had left her tablet in the living room.
However, even if the tablet had been collected and it showed videos had been watched over the course of hours, this would not demonstrate that the victim had been watching the videos with defendant or that he could not have simultaneously had the videos running and been molesting her at the same time. Likewise, the absence of the victim's DNA from defendant's clothes and/or person would not exculpate him from guilt in the charged crimes. Indeed, had samples of defendant been obtained and revealed the presence of the victim's DNA, the evidence could have proven inculpatory. Here, any error in the failure to obtain and introduce the evidence complained off was harmless. (People v. Brown (2003) 31 Cal.4th 518, 576-577 [exclusion of mitigating evidence in trial of capital defendant harmless beyond a reasonable doubt].)
The victim told her father, the forensic interviewer, the medical examiner, and testified at trial that defendant had molested her. The details upon each retelling were consistent, e.g., defendant had her get into a catlike position on all fours, he licked her genitalia, and he tried to insert his penis into her anus. Defendant had committed the acts on multiple occasions. He told the victim not to tell anyone what he was doing to her.
The victim's mother testified she observed suspicious behavior, observed the victim on the lower bed where she did not normally sleep, and that the victim had her pajama bottoms in her hand. The victim started crying when her mother asked what was going on. She told her mother to ask defendant what was happening because he had told her not say anything. Swabs of the victim's labia majora, labia minora, and perianal area tested consistent with only one foreign, logical source of DNA, defendant. Overwhelming evidence supported the jury's verdicts. Thus, any error was harmless. B. Ineffective Assistance of Counsel: Evidentiary Issues
Defendant identifies numerous evidentiary objections to which he contends defense counsel was ineffective for failing to object. However, "[t]he decision whether to object to evidence at trial is a matter of tactics and, because of the deference accorded such decisions on appeal, will seldom establish that counsel was incompetent. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 444-445.) "'[T]he mere fact that counsel, had he [or she] chosen another path, "might" have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendant's burden of demonstrating [incompetence]. . . .' [Citation.] Rather, as we have explained, a conviction will not be reversed unless the record on appeal demonstrates counsel had no rational purpose for the failure to object, and the failure was prejudicial. [Citations.]" (Id. at p. 445.)
Here, the record does not demonstrate that defense counsel had no rational purpose in failing to object. Indeed, all of the suggested objections would have been aimed at questions asked of the victim, who, at 11 years of age at the time of her testimony, could have been perceived by the jury as bullying. Moreover, as discussed above, even if all the alleged objections would have been sustained, we find defendant suffered no prejudice. C. Prosecutorial Misconduct
Defendant identifies several purported acts of misconduct by the prosecutor during his closing statements, including acting as an expert witness, misquoting evidence, making misleading statements, and shifting the burden of proof. First, defendant forfeited the issue by failing to object below. (People v. Lopez (2008) 42 Cal.4th 960, 966.) Second, we disagree with defendant that the prosecutor's statements amounted to prejudicial misconduct. Minor inconsistencies in the People's recount of the trial testimony with the actual testimony adduced do not amount to prejudicial misconduct. Rather, here, they amounted to semantic differences. In any event, the jury made the ultimate determination as to what the substance of the testimony amounted to when it rendered its verdicts. As discussed above, overwhelming evidence supports the verdicts. Furthermore, the court properly instructed the jury with the People's burden of proof. (CALCRIM Nos. 220, 225) Thus, the prosecutor did not commit prejudicial misconduct. D. Jury Instructions
Defendant identifies several instructions which the court gave the jury with which defendant has some apparent problem. However, defendant fails to identify why the instructions were improper or prejudicial. Defendant's failure to support his claims of error with meaningful argument forfeits the issue on appeal. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)
Defendant appears to attempt to raise other issues which are either not intelligible or are not supported by argument. For the same reason, we deem these issues forfeited.
Defendant also appears to argue that the instruction requiring the jury to evaluate the credibility of the witnesses was not followed because he asserts the victim's testimony was thoroughly inconsistent and recanted by her original statements to her father, the forensic interviewer, and the medical examiner. However, at trial it was the exclusive province of the jury to determine the credibility of the witnesses and the truth or falsity of the facts upon which that determination depended. (People v. Hovarter (2008) 44 Cal.4th 983, 996.) Here, by virtue of its verdicts, the jury obviously determined the victim's testimony was credible.
Defendant further questions the court's purported failure to issue a final response to the jury's question of whether they were to follow the judge's instructions in filling out the verdict forms or do something different. The judge responded appropriately by telling the jury it "must follow my instructions." Thus, defendant has failed to identify any prejudicial error regarding the instructions to the jury, the jury's adherence to those instructions, or the court's response to the jury's question. Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: HOLLENHORST
Acting P. J. CODRINGTON
J.