Opinion
C071378
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON LEE RUSH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F05704)
Defendant Jason Lee Rush appeals following conviction on three counts of child molestation against a 12-year-old victim for whom he was a grandfather figure, including: two counts of lewd or lascivious act with a child under 14 (Pen. Code, § 288, subd. (a); counts one & two) and one count of lewd or lascivious act with a child under 14 by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b)(1); count three). He was sentenced to eight years in prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendant contends: (1) the trial court improperly discharged a hearing-impaired juror in violation of defendant's constitutional rights; (2) the court improperly allowed evidence of uncharged acts under Evidence Code section 1101; (3) the evidence was insufficient to prove duress in count three; and (4) trial counsel rendered ineffective assistance of counsel by failing to request an intoxication instruction when eyewitnesses testified that defendant was drunk, defendant admitted drinking alcohol before the incident, and a defense expert testified that defendant was at increased risk of committing crimes if he was under the influence, or alternatively, counsel should not have called the expert to so testify if counsel had made a tactical choice not to request an intoxication instruction.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with three offenses: (1) lewd and lascivious act (§ 288, subd. (a); count one) by rubbing the 12-year-old victim's breast under her shirt; (2) lewd and lascivious act (§ 288, subd. (a); count two) by rubbing the victim's breast under her shirt a second time; and (3) lewd and lascivious act by use of duress (§ 288, subd. (b)(1); count three), by following the victim into a bathroom, reaching under her shorts and rubbing her leg.
Prosecution's Case
Defendant, age 37 at the time, was a grandfather figure to the 12-year-old victim. Defendant had previously been a "boyfriend" of the victim's grandmother for many years and was a father figure to the victim's father.
The victim, age 14 at the time of trial, testified that her family had a baby shower and barbecue at their home for the victim's stepmother, who was pregnant. The victim felt sad because she thought she would not get any attention after the baby was born. She went into her bedroom and closed the door where she was alone until defendant walked in, closing the door behind him. They talked about her sadness. The victim was sitting on the bed. Defendant sat on the bed. Defendant told her that she did not have to worry about anything and she could move in with him if she was worried. They lay on the bed facing each other. He softly rubbed his hand from her wrist, up her arm, and inside her shirt, touching her bra, and then rubbed her breast under her bra. He did it twice. Although she was twelve years old, the victim had developed breasts. Defendant had never done anything like it before. The victim was scared because defendant carried a pocket knife and was wearing it that day. She was also afraid because he had told her about his self-defense abilities when he previously instructed her on self-defense, including his abilities to "work almost like any weapon." He had also previously told her he could shoot anything and that if he wanted to kill anybody, he could.
To get away, the victim told defendant she had to go to the bathroom. She left the bedroom, crossed the hall, went into the bathroom, and closed the door. Defendant followed her, opened the door, entered, and closed the door behind him. The victim was standing against the wall near the door hinges. Defendant put one of his hands on the wall over her head. Then his hand came down and he reached under her shorts and touched her thigh. He moved his hand from side to side. She was scared. When asked during her testimony what she was afraid of, the victim said, "The pocket knife and what he could do." The pocket knife was attached to defendant's belt link with a chain at the time. Despite her fear, the victim pushed defendant and told him to get away. He said, "[A]h, shit." He also said, "I can't do anything. It's gonna look bad for me and you." People banged on the bathroom door, opened it, and the stepmother told defendant to get out. The victim hugged and thanked her stepmother but did not disclose what happened.
The victim said her father started yelling. This frightened the victim because she thought they would start fighting, her father would go to jail, and she would not be able to see him. This was one reason why she did not tell anybody what had happened. Later that night, the victim told her stepsister what had happened. Months later, the victim told her stepmother what had happened. A year after the incident, a sheriff's detective questioned the victim. She initially did not disclose what happened, but later told the detective what defendant did to her during a second interview that took place on the same day after the detective had talked to the victim's stepsister.
A family friend, Russell Archer, testified he saw defendant go into the bathroom after the victim and told the victim's stepmother.
The stepmother testified that she had earlier knocked on the victim's bedroom door, which was locked. The victim opened the door. Defendant was standing off to the side of the bed, leaning against a dresser. The stepmother told the victim to come out of her bedroom. The stepmother left the room. She then saw the victim come out of her bedroom, walk to the kitchen, and then walked to the bathroom. Defendant followed the victim into the bathroom and the stepmother heard the bathroom door shut. The stepmother and others went and banged on the bathroom door and had to push it open. It seemed as if someone inside was leaning against the door. The door was not locked because the doorknob turned freely. As they were pushing the door, the stepmother yelled for the victim to open the door. The stepmother described the bathroom as being "very small." After about 30 to 40 seconds of pushing the door, it opened. The victim was leaning against the sink crying, and defendant was leaning against the wall directly across from the victim. The victim had "fear in her eyes." The stepmother told defendant to leave, but defendant argued and would not leave. Finally, he left the bathroom. The victim hugged her stepmother but would not say what had happened. All she told her stepmother was " '[t]hank you.' " At some point during the conversation, the stepmother asked the victim if defendant had touched her and the victim responded only that defendant was making her feel uncomfortable. The victim also said that they had "saved" her by opening the door.
The stepmother then went to the living room where defendant was located. Defendant was "making a big scene, screaming and hollering" that the stepmother was accusing him of something. Defendant threatened to kill the stepmother and the stepmother's unborn child. At some point while they were in the living room, the stepmother told defendant that nobody was accusing him of anything; she only told him that following the victim into the bathroom was inappropriate and told him to leave. Defendant spoke in the British accent he always adopted when drunk. Defendant went outside but stayed on the premises yelling, e.g., " 'I'm on trial. F'ing trial.' " One of the men asked defendant why he was in the bathroom with the victim and he just kept saying he was on trial and never did say why he was in the bathroom. The victim was present and just remained quiet as defendant was yelling. At some point, defendant left but kept coming back and banging on the door, so they called 911. Defendant was gone by the time the police arrived.
That night, after the incident, the stepmother kept trying to find out from the victim what had happened, but the victim was not speaking. The victim "just would close up," and not talk. She continued to cry. On subsequent days, the stepmother "continuously" tried to talk to the victim about what happened and the victim would not tell her. Instead, the victim "got really quiet," cried, and "shutdown." Months later, the victim spontaneously disclosed to her stepmother that defendant had touched her breast and put his hand in her pants.
The victim's father testified he had fallen asleep on the couch when the arguing awoke him. Defendant kept asking what he was being accused of and he threatened to kill the stepmother and the unborn baby. He said something like, " 'You fucking, bitch, I should kill you.' " Somebody had taken the victim outside by that time. The father asked defendant what happened and defendant responded it was between him and the victim. The men went outside. Defendant refused to say what had happened, repeating it was between him and the victim. The men went into the garage, and at some point the father went to get a knife because he wanted straight answers from defendant. But when he returned, defendant was gone. Later defendant returned to the house. The father and one of the other men spoke to defendant. Initially, the father had a knife up to defendant's throat, but the other man took the knife away. Defendant again asked if he was on trial and repeated what happened was between him and the victim. At some point, the father went to the bathroom, and the other guests kept him inside. In the weeks that followed, the father asked the victim numerous times what had happened, but she would not tell him.
Over defense objection, the trial court allowed the victim's stepsister, age 15 at the time of trial, to testify that on the one or two occasions she saw defendant before the baby shower, defendant made her uncomfortable by looking down her shirt and the victim's shirt. When asked how she knew he was looking down their shirts, she testified, "[B]ecause he would like come over there and stand like right next to us, and then look down our shirts, and you know bite his lip and go like 'hmm' and kind of -- it was kind of obvious." The stepsister was around 13 years old the first time it happened, the same age she was at the time of the baby shower.
The stepsister testified that on the day of the baby shower, she saw the victim go into the bathroom and defendant went in thereafter. She then heard the victim yell from the bathroom, " '[G]et away from me.' " Her mother (the victim's stepmother) and some other adults then went to the bathroom. Thereafter, defendant and the victim came out of the bathroom. Someone told the victim to go into her bedroom, and the stepsister went in as well. The victim, upset and crying, told the stepsister that defendant was "feeling down her shirt" and rubbed the victim's breast while they were in the bedroom. The victim said she went into the bathroom, thinking defendant would go away. She would not say what happened in the bathroom. The victim was very upset. She was shaking and could barely talk.
A sheriff's detective testified that he interviewed the victim a year after the incident. In the first interview, she did not disclose the molestation and only said that she "was scared and felt awkward" around defendant. She said she was backed into a corner and defendant had his hand up on the wall blocking her way out of the bathroom. She said she talked to her stepsister about it. Thereafter, the detective spoke with the stepsister, then re-contacted the victim, who then disclosed that defendant touched her breast twice under her shirt and bra in the bedroom and touched her thigh under her shorts in the bathroom. She told the detective that she did not tell anyone what happened because she thought defendant would hurt her.
The prosecution elicited testimony from an expert regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), explaining that victims may delay reporting molestation.
Defense Evidence
The defense called as a witness the victim's biological mother, who testified that she had a conversation with the victim about what happened approximately a year and a half after the incident. The conversation took place during one of the mother's supervised visit with the victim. The victim told her that there had been an argument between the stepmother and her father. Defendant came into her room to talk and was consoling her because she thought her stepmother and father were going to break up. Towards the end of the conversation, defendant went to hug her and his had touched the top part of her chest on top of her clothes. His hand started to slide down. This made her uncomfortable, but he did not grope or caress her and he only touched her chest once. The victim said she went to the bathroom to wash her face. Defendant followed her in and shut the door. Within less than a minute, the stepmother and a friend banged on the door. The victim said defendant had been leaning on the door, but moved as the knocking started. She did not say anything inappropriate happened in the bathroom. Regarding defendant looking down the girls' shirts, which the mother had heard happened earlier in the day, the mother said the victim told her they were wearing low cut tops, but defendant just looked at them and she did not feel uncomfortable.
In her testimony during the prosecution's case, the victim testified that she did not have a close relationship with her mother. The mother had not been there for her, and there had been periods of time when she did not see her mother. The victim testified that she did not trust her mother because her mother told her that defendant had called her, told her that he did not do anything, and that he wanted the mother to be there for him. The mother told the victim that she wanted to know what happened because there are always two sides to the story. The victim testified that she told her mother the same thing she had said during her own testimony.
Dr. John J. Wicks, a psychologist who conducted a risk assessment of defendant, testified as a defense expert. He opined that defendant had a lack of propensity to commit the charged offenses and discussed defendant's personality trait that would explain why defendant would put himself in a compromising situation where he was alone with a twelve-year-old girl. We discuss Dr. Wicks' testimony in more detail post, in connection with defendant's intoxication instruction claim.
Defendant testified. In 2006, he pleaded no contest to a misdemeanor for making a criminal threat. On the day of the baby shower, defendant drank one beer before he arrived and drank four or five beers at the party over the course of about three or four hours. He was "not really" feeling the effects of the beer because he is a "heavy drinker" and "my tolerances are extremely high so it takes a lot of alcohol for me to actually get feeling it [sic]." He further explained that the alcohol did not affect his ability to recall the events and that he had a clear memory of what happened. He claimed he never looked down the shirts of either girl, nor did he ever make any comments about them.
Defendant testified that during the baby shower, he knocked on the victim's bedroom door because he was looking for the cat. The victim said to come in. He opened the door and saw her crying. He entered and shut the door. She said she was upset because her father and her stepmother had been fighting, and if they broke up, the victim was worried she would not be able to see the baby. Defendant tried to console her with words. She was lying on the bed, crying. He sat on the bed and patted her shoulder, saying, " 'There there, it's okay.' " He was not sexually aroused, did not touch her breast, and did not put his hand under her clothing. He suggested she wash her face, which was puffy from crying. They walked into the bathroom together, still talking, and he pushed the door shut. Within about four seconds, someone knocked on the door and "bust[ed]" it open. Several people stood there, including the victim's stepmother, who told defendant to " '[g]et the fuck out of here.' " Defendant was offended and told the victim's stepmother to " '[f]uck off and die.' " The people were yelling at defendant in an accusatory tone. Defendant testified he was confused and did not understand what was going on. As he walked out the front door, "it started dawning on" him what they were saying. Defendant testified he never touched the victim in the bathroom and never tried to hold the door shut. He told people that what happened was between him and the victim, because he considered their talk confidential. He denied having any sexual thoughts about the victim. He testified that at that time, "I had been drinking, as I said before, but I was not drunk."
Verdicts and Post Conviction Proceedings
The jury returned a verdict finding defendant guilty on all three counts.
Defendant moved for a new trial, arguing that the trial court violated his constitutional rights to a fair trial by permitting: (1) testimony that explained why the victim was afraid of defendant (e.g., because he carried a knife, knew how to shoot a gun, had previously said he could shoot and kill people, had been to jail for assault, and had shown her self-defense techniques); (2) uncharged misconduct; and (3) impeachment of the victim's birth mother.
The trial court denied defendant's motion for new trial and sentenced defendant to eight years in prison, calculated as follows: The upper term of eight years on count three, lewd or lascivious act on a child under 14 by use of force, violence, duress, menace, or fear of bodily injury (§ 288, subd. (b)(1)), and concurrent terms of six years each on counts one and two, lewd or lascivious act on a child under 14 (§ 288, subd. (a)), "given the close timing, sequence, and the comparative lack of opportunity for reflection prior to engaging in the Count 3, 288(b)(1)."
DISCUSSION
I. Discharge of Juror
Defendant argues the trial court improperly discharged a sworn juror under section 1089 who was hearing-impaired, violating his constitutional rights to due process and a jury trial. We disagree.
A. Additional Background
During voir dire of the person who became Juror No. 11, the trial court said to him, "I notice you cup your ear. Have you been able to hear what's going on?" He responded, "Mostly. Up here I can hear a bit better than when I was in the back. I had more difficulty." The trial court moved him closer, said he would sit in the chair closest to the witness stand if chosen as a juror, and said, "If you can't hear at any point during the trial, you have to immediately get my attention and interrupt so that we can have the witness answer again. Do you understand?" Juror No. 11 said, "Okay. Yes." The court asked, "Will you follow that admonition?" Juror No. 11 said, "Yes." The court reiterated, "You just raise your hand . . . [¶] . . . [a]nd I'll take care of it."
As voir dire proceeded, defense counsel said to Juror No. 11, "I noticed several times even after you were moved down here you had to have something repeated for you. Do you think that in your mind -- I don't know where you will end up sitting, that that's going to be a problem as far as hearing witnesses, hearing counsel talk at the table here and hearing His Honor talk?" The juror said, "[I]t is hard to say. I, I can hear you now. But occasionally the voice is low, I have recently just been having a little more difficulty and scheduled a test for that, but I am able to hear you now so. [¶] I can't say for sure that I wouldn't -- I wouldn't need to have things repeated occasionally." Defense counsel then asked if the juror recognized him, to which the juror said, "Pardon me?" When defense counsel repeated the question, the juror said he did not recognize counsel. Outside the presence of the other prospective jurors, defense counsel told the court he was on the Board of Directors of Sacramento County Suicide Prevention back in the late 1970's or early 1980's, when the juror was that organization's director. Defense counsel said he did not realize the connection until he heard the juror speak. The juror, having had his memory refreshed, told the court that he thought he could put aside his positive feeling toward defense counsel. The prospective juror was ultimately chosen for the jury.
On April 12, 2012, the jury heard pre-instructions from the judge, opening statements from the attorneys, and some testimony from the victim before the morning break. Before resuming the testimony, the trial court had Juror No. 11 brought into the courtroom and had the following exchange:
"THE COURT: . . . I just wanted to check with you and see how you were hearing. [¶] I noticed a couple of times I was reading the pre instructions, I thought you were straining a bit, but I'm not sure that's true.
"JUROR 11: A couple of times I did, I heard, you know, pretty well for the most part. There were a couple of times when a voice dropped off a bit and I might have missed a couple of words.
"THE COURT: I see. What are you -- how are you doing with the witness?
"JUROR 11: That's what I meant. A couple of times her words dropped off, and I missed a couple of words.
"THE COURT: I see.
"JUROR 11: That she said, but I heard [sic].
"THE COURT: How often did that drop-off occur, was that like
"JUROR 11: Maybe twice.
"THE COURT: So this might be missing one, two or three words, it is hard to tell but some little portion?
"JUROR 11: Yes, yes."
At that point the court asked the juror to step outside the courtroom and spoke with counsel as follows:
"THE COURT: This gentleman has hearing aids. He advised the Court this morning he actually had them adjusted and thought he would be okay. [¶] We had offered the listening assistance device to him. He didn't want it. My experience is that . . . people who use hearings aids do not get benefit from the listening assistance device. [¶] The listening assistance device is not as good as the hearing aids. This is my own personal situation, so I can relate to it and understand it. [¶] Is there a motion?"
The prosecutor moved to excuse the juror. The defense objected. The following ensued:
"THE COURT: I'm going to grant the motion here. This lady actually is a pretty good speaking witness particularly for a child. The difficulty -- and he has missed some of that. There are two difficulties here. [¶] One, I admonished him and he assured me during the jury selection process if he missed anything, he would bring it to my attention immediately. Well, he didn't. [¶] He only brought it to the attention when the Court voir dired on its own viewing some, what I thought was strange behavior, which I noticed honestly when I was reading the pre instructions because I try to sustain the best eye contact I can. And then he said he missed as much as two or three words on two or three occasions, although, he understood the flow it or the substance of it. [¶] Well, this case because of the mental states and the conduct involved particularly as it goes to the allegations in Count Three, you need to hear it all. And if you can't hear it, you need to bring it to the Court's attention. And he hasn't brought that failing to the Court's attention. [¶] He's obviously missed something already, and the predicament is you can't even ask him what he missed because he doesn't know. It is too late. It is done, and we're not going to redo this minor's testimony. So there is good cause here to excuse this gentleman.
"[DEFENSE COUNSEL]: Your Honor, I know the Court has already decided, but in defense of [Juror 11], there were times when you know I thought her voice dropped off, I couldn't hear what she said either. And my hearing isn't great, but it is not bad either but
"THE COURT: I had no difficulty with this witness in comparison with other witnesses. She wasn't the typical child witness to be honest with you. I have had some nightmares, but I didn't find that as an issue here. [¶] And on occasion I do look at the real time which I have access to and I did not look at it during her testimony because it wasn't necessary for me. He has a problem.
"[DEFENSE COUNSEL]: Okay. Is it possible you give him one more chance to use the device?
"THE COURT: No. I am not going to do that. He already declined it once, and I am not going to go back and offer it a second time particularly when my experience is when he has professionally tuned and adjusted programmed audio devices, that's it. [¶] He declined to use it. He did not want to use it. He refused to use it. [¶] He is excused."
Juror No. 11 was brought back into the courtroom. The trial court stated, "I am going to excuse you from this jury, and I want to give you an explanation. [¶] In this type of case, it is extremely important that you understand all the words. There be no impediment, and although I think you're hearing particularly as you gotten [sic] the hearing aids adjusted and explained that to us this morning. We weren't on the record, but I appreciate that. [¶] It causes a risk here, and I don't want to be in a situation where we have to go back, for example, and reask [sic] this young witness questions over again.
"JUROR 11: What about the jury assistive device?
"THE COURT: I offered that to you earlier, and you had declined it. [¶] My experience is that if you have hearing aids that they will work better than the assisted device because the hearing aids are usually programmed to magnify sound consistent with your needs, and the assisting device is just a volume issue. Okay.
"JUROR 11: Okay."
The trial court asked the juror to leave the courtroom and, in his absence, asked both attorneys for their position about the juror's new willingness to try the device. The court clerk interjected: "The assisted listening device is a[n] earbud system so he would have to remove his hearing aids and put the earbuds in." The court said, "Yes. They do not improve. I have not -- we've had this numerous times, I have not had a hearing aid person improve with the listening aid device." Defense counsel asked that the juror "be given a chance." The prosecutor pointed out the issue remained that the juror had already missed some portions of the testimony. The court stated:
"THE COURT: I'm going to stand by the ruling for the reasons articulated. [¶] One, he didn't advise the Court. [¶] Two, he has already heard [sic] some testimony that he didn't hear. [¶] And three, we're kind of experimenting now in the course of the trial that involves further risk. [¶] There is cause here. He is excused."
And so the trial court excused Juror No. 11 and replaced him with an alternate. The court told the jurors it excused Juror No. 11 because he continued to have difficulty hearing and had missed some portions of the testimony.
B. Analysis
Defendant contends the discharge of Juror No. 11 was without good cause as required by section 1089, and violated his constitutional rights to due process and a full and fair jury trial under the Sixth Amendment to the United States Constitution. As we shall discuss, defendant's statutory claim implicates the constitutional rights he asserts. (See People v. Allen and Johnson (2011) 53 Cal.4th 60, 71 (Allen and Johnson); People v. Martinez (2010) 47 Cal.4th 911, 943, fn. 6.) Nevertheless, defendant fails to show grounds for reversal of the judgment.
Section 1089 provides in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate . . . ."
Section 1089 authorizes the trial court to excuse a juror who is unable to perform his or her duty. Under section 1089, "[t]he court may discharge a juror for good cause [citation], which includes a failure to follow the court's instructions." (Allen and Johnson, supra, 53 Cal.4th at p. 69.) "Removing a juror is, of course, a serious matter, implicating the constitutional protections defendant invokes. While a trial court has broad discretion to remove a juror for cause [fn. omitted] it should exercise that discretion with great care." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell) [juror who was biased against police officer witnesses was properly discharged for failing to deliberate].)
"Because of the importance of juror independence, review of the decision to discharge a juror involves ' "a somewhat stronger showing" than is typical for abuse of discretion review . . . .' [Citation.] The basis for a juror's discharge must appear on the record as a ' "demonstrable reality" ' and 'involves "a more comprehensive and less deferential review" than simply determining whether any substantial evidence' supports the court's decision. [Citation.] The reviewing court does not reweigh the evidence but looks to see whether the court's ' "conclusion is manifestly supported by evidence on which the court actually relied." [Citation.]' [Citation.] This heightened standard is used by reviewing courts to protect a defendant's fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury [citation], which are also hallmarks in American jurisprudence." (Allen and Johnson, supra, 53 Cal.4th at p. 71, italics added.)
Defendant cites cases in which the demonstrable reality standard was not met, but those cases are distinguishable. All of these cases involved the discharge of a juror during deliberations.
In Allen and Johnson, the court held that a trial court in a capital case improperly discharged a juror during guilt phase deliberations for prejudging the case and relying on evidence not presented at trial. (Allen and Johnson, supra, 53 Cal.4th at p. 68.) The basis for these findings came from two jurors who reported that the juror said during the second day of deliberations: (1) the prosecution rested without proving its case, and (2) testimony that a Hispanic coworker punched a witness's employment timecard for him was not credible because the juror believed Hispanics would never cheat on timecards. (Id. at p. 66.)
An eyewitness identified one of the defendants as the shooter. However, the witness's timecard indicated he was at work when the shooting took place. The witness testified "that he and a coworker, 'Jose,' often clocked in for each other, so the records would indicate they were at work when in fact they were not." (Allen and Johnson, supra, 53 Cal.4th at p. 64.)
The Supreme Court reversed, holding the discharge was improper. (Allen and Johnson, supra, 53 Cal.4th at pp. 71-79.) It concluded that although the juror had said, "words to the effect that, 'When the prosecution rested, she didn't have a case,' the precise meaning of his statement [was] not entirely clear." (Id. at p. 72.) The trial court interpreted that statement to mean the juror had prejudged the case by deciding to vote not guilty before hearing defense and rebuttal evidence, closing argument, jury instructions, and the views of his fellow jurors. Our high court reasoned that "remark was not an 'unadorned statement' that he had conclusively prejudged the case. It did not establish that [the juror] had ignored further evidence, argument, instructions, or the views of other jurors. Although section 1122 requires jurors not to form an opinion about the case until it has been submitted to them, 'it would be entirely unrealistic to expect jurors not to think about the case during the trial . . . .' [Citation.] A juror who holds a preliminary view that a party's case is weak does not violate the court's instructions so long as his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions expressed during deliberations." (Id. at p. 73.) Moreover, the statement was made during deliberations, not at the outset of deliberations. (Ibid.) "The record [did] not demonstrate that [the juror] refused to listen to all of the evidence, began deliberations with a closed mind, or declined to deliberate." (Ibid.) In fact, the record reflected the opposite. The juror cast an " 'undecided' " vote on the fifth day of deliberations and participated in the deliberative process. (Id. at p. 74.) The court further observed that the trial court never asked the juror what he meant by his statement and made no effort to address the issue by giving a curative instruction. The court held that the trial court also erred by basing its decision on the opinions of other jurors that the juror had his mind made up. (Ibid.)
Regarding the juror's comment about the time cards, the Allen and Johnson court reasoned the juror's positive opinion about the reliability of Hispanics in the workplace was not an impermissible reliance on facts not in evidence, but rather a permissible application of the juror's life experience to judge the credibility of the witness, who claimed to be an eyewitness to the shootings, yet his time card indicated he was not there. (Allen and Johnson, supra, 53 Cal.4th at pp. 76-78.) The possibility that the juror's view was based on a weak premise was not a ground for discharge. (Ibid.)
Similarly, in People v. Cleveland (2001) 25 Cal.4th 466, another case upon which defendant relies, the court held that the trial court abused its discretion in excusing a juror during deliberations for failure to deliberate based on findings that he was " 'not functionally deliberating' " and refused to respond during deliberations to specific questions posed by the other jurors as to elements and facts, instead relying on generalities. (Id. at pp. 473, 486.) The Supreme Court concluded that the juror "participated in deliberations, attempting to explain, however inarticulately, the basis for his conclusion that the evidence was insufficient to prove an attempted robbery, and he listened, even if less than sympathetically, to the contrary views of his fellow jurors." (Id. at p. 486.) The court emphasized that the circumstance that a juror does not deliberate well or relies upon faulty logic or analysis "does not constitute a refusal to deliberate and is not a ground for discharge." (Id. at p. 485.)
As another example, defendant cites People v. Elam (2001) 91 Cal.App.4th 298. There, the court held the trial court erred in removing a juror during deliberations based on the juror's alleged problems with the English language. (Id. at pp. 313-318, criticized on other grounds in People v. Guido (2005) 125 Cal.App.4th 566, 575.) Although insufficient command of the English language could render a juror unable to perform his duty as a juror within the meaning of section 1089 and justify his discharge, the complaints of the other jurors did not necessarily demonstrate a language problem as opposed to disagreement about the evidence and interpretation of the law. (Id. at p. 316.) The discharged Juror No. 3 admitted having some difficulty with the English language, and the court acknowledged the juror had a pronounced accent. (Id. at p. 313.) But the juror had grown up speaking English, spoke English while serving in the United States Navy, and earned an associate of arts degree in English from a community college. (Ibid.) The other jurors thought there was a language problem because some of them had trouble understanding Juror No. 3, but mainly because he frequently changed his mind, " 'block[ed] out' " circumstantial evidence, and did not seem to " 'grasp the law.' " (Id. at pp. 314-316.) The Elam court also reasoned that the circumstances that a juror does not deliberate well, or relies upon faulty logic or analysis, or disagrees with the majority as to what the evidence shows or how the law should be applied to the facts, or is inarticulate in explaining his position, do not constitute grounds for discharge. (Id. at p. 317.)
Here, the difficult question of refusal to deliberate or communication with the other jurors during deliberations was not at issue. The issue was a violation of the trial court's order to the juror to raise his hand if he could not hear and the juror's breach of his express promise that he would do so.
A juror has the duty to follow the court's instructions, and an inability to follow the court's instructions constitutes good cause for removal of the juror as being unable to perform his duties as juror. (People v. Williams (2001) 25 Cal.4th 441, 449, 463 [judge may reasonably conclude that a juror who has violated instructions cannot be counted on to follow instructions in the future], criticized on other grounds in Barnwell, supra, 41 Cal.4th at p. 1052.)
Here, the trial court expressly stated that the primary reason for removing the juror was, "One, he didn't advise the Court." The record shows as a demonstrable reality that the juror indeed failed to follow the court's instructions because the record shows the trial court instructed the juror to raise his hand to alert the court if he could not hear; the juror never alerted the court; yet, when asked by the diligent trial judge, the juror admitted he could not hear some words of the victim's testimony on at least two occasions, thus admitting he failed to follow the court's instructions. It was critical for the juror to let the judge know at the moment he could not hear something that was said so the judge could direct the speaker to repeat it for the juror.
Defendant argues Juror No. 11's hearing impairment or missing a few words of testimony did not render him unable to perform his duties as a juror. Defendant casts this as a matter of discrimination against persons with disabilities. He cites Code of Civil Procedure section 203, subdivision (a)(6), which says "(a) All persons are eligible and qualified to be prospective trial jurors, except the following. [¶] . . . [¶] (6) Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of the loss of sight or hearing in any degree or other disability which impedes the person's ability to communicate or which impairs or interferes with the person's mobility." (Italics added.) He cites Civil Code section 54.8, subdivision (a), which mandates that hearing-impaired jurors be provided with assistive listening devices upon timely request no later than five days before the hearing.
Civil Code section 54.8 provides in pertinent part: "(a) In any civil or criminal proceeding . . . where a party, witness, attorney, judicial employee, judge, juror, or other participant who is hearing impaired, the individual who is hearing impaired, upon his or her request, shall be provided with a functioning assistive listening system or a computer-aided transcription system. Any individual requiring this equipment shall give advance notice of his or her need to the appropriate court or agency at the time the hearing is set or not later than five days before the hearing. . . ."
However, Juror No. 11 was not removed solely because of hearing impairment. He was removed because he demonstrated he would not perform his duty to follow the court's orders. He did this by violating the court's order to raise his hand if he could not hear something and breaching his promise that he would abide by that order. Moreover, Civil Code section 54.8, subdivision (a) (see fn. 5, ante), is inapplicable because the juror did not request an assistive listening device in a timely manner no later than five days before trial, as required by the statute. To the contrary, the juror initially declined the trial court's offer of the device. Defendant cites no authority requiring a trial court to indulge a juror's belated request to use the court's assistive listening device, after the juror had already declined the offer, and where the juror had been using his own custom tuned hearing aid. The trial testimony was underway and the time to experiment with the assisted listening devise to determine whether it would be effective had passed. Nor does defendant challenge the court's representation that the court's device was less effective than a juror's own hearing aids.
While we expect trial judges to be sensitive to the policy to retain hearing-impaired jurors, the judge in this case met that standard.
We recognize that a hearing-impaired juror is put in a difficult position of having attention drawn to himself by raising his hand during trial. Perhaps the juror was reluctant to interrupt the proceedings or to interrupt the child witness, though defendant does not so argue, and the record contains no evidence supporting any such supposition. The juror expressed no such reservation when he affirmatively promised the court that he would raise his hand if he could not hear. In any event, it was critical that the juror immediately inform the court when he did not hear witness testimony, so the court could direct the speaker to repeat what was said contemporaneously. As the trial court observed, the juror had already missed some testimony as a result of his failure to do so.
The only argument defendant makes on appeal regarding the juror's refusal to follow instructions is: "Nor should the juror have been excused because he did not immediately advise the court that he was unable to hear a few words of testimony. The juror explained that he could not hear several words when the witness'[s] voice dropped off. [Citation.] Defense counsel also complained about the ability to hear the witness. [Citation.] In all likelihood, the juror assumed the problem was with the volume of the witness'[s] voice, not with his hearing, as did defense counsel."
There are two problems with this argument. First, there is no evidence that this is what the juror assumed. The evidence suggests the contrary, because if the witness was the problem, it could be expected that the judge or one of the attorneys would have asked the witness to repeat or keep her voice up. That did not happen. Indeed, the trial judge, noted that the 14-year-old witness "actually is a pretty good speaking witness particularly for a child," and said he "had no difficulty with this witness in comparison with other witnesses. She wasn't the typical child witness."
After the juror was removed, defendant's trial counsel on a few occasions said he could not hear or understand the victim. The court told him what she had said. At another point, defense counsel asked the victim to repeat an answer he did not hear over the prosecutor's objection. The prosecutor later said she did not hear an answer and asked the victim to repeat it. When she did, defense counsel said he could not hear the victim but maybe it was just him. The court said it was "doing pretty good" but maybe there was a problem and so asked the alternate juror, who said, "I can hear." Defendant claims the trial court later acknowledged that the " 'pacing' " of the victim's testimony was difficult. The court made this comment during a pause in the testimony of the stepmother, not the victim. But in context it appears the discussion related to the victim, because they spoke of the witness repeatedly asking counsel to repeat the question. It was the victim, not the stepmother, who repeatedly said, "Say again" (often in response to convoluted questions on cross-examination such as "Did you talk to your mom about the incident or whatever happened in the bathroom about how long you were in the bathroom?"). The trial court said the victim's vocabulary was unusually limited for a person of her age and she did not understand words being used by counsel. Defense counsel said he was frustrated "between not being able to hear her a lot and her continuously asking me to repeat, repeat." The trial court said "her pacing [was] difficult," in that some of her answers came quickly and others slowly, so it was difficult for the lawyers to time their next question. The court said the lawyers complicated matters by asking convoluted questions. The court noted the situation improved when the lawyers simplified their questions at the court's urging.
Even assuming arguendo that the witness was sometimes soft-spoken, this did not make it any less critical for the juror to follow the trial court's instruction to let the court know when he did not hear something that was said. The court did not qualify his instruction by saying the juror should raise his hand only if it was his hearing impairment that made him miss testimony. And how would the juror know whether it was his impairment that prevented him from hearing or whether the witness was simply soft-spoken and was not being heard by others? The juror should have alerted the court of his inability to hear regardless of whether the witness was soft spoken.
Defendant argues that the juror's inability to hear a few words of testimony did not establish a " 'demonstrable reality' " that the juror could not perform his duties. However, it was unclear what the juror had not heard because he did not alert the court contemporaneously with missing what was said. Moreover, the juror had already shown himself unable to follow the court's instructions. The court was not required to take the chance that the juror would continue to sit silent as he missed even more testimony. The court stated as a further reason for removing the juror that "experimenting now in the course of trial . . . involves further risk."
Though the words missed by the juror may not have made a material difference in deliberations, we cannot know, because we do not know what he missed. Defendant points out that jurors have not been discharged in situations where they have dozed off and that such a situation occurred in this case involving another juror. However, after an investigation and admonishment by the trial court, neither counsel objected to that juror remaining on the jury. The situation apparently did not reoccur and that juror did not violate any order of the court.
Defendant does not contend the trial court should have let Juror No. 11 read the real-time transcript to find out what he missed.
The prosecutor informed the trial court that one of the jurors "fell asleep at one point." According to counsel, the juror actually snored and two other jurors woke the juror up by shaking her. The prosecutor did not notice how long the juror had slept. On examination by the trial court, the juror admitted falling asleep during the testimony of a police officer, but told the court, "I don't think very long though." The court ordered her to get all the sleep she needed before coming to court, invited her to get coffee in the courthouse cafeteria, and to raise her hand during the testimony if she needs a break. The court also directed the juror to stay after court to hear a re-read of the portion of the officer's testimony where counsel noticed she was sleeping. Out of the juror's presence, the trial court asked the parties if they had any objections or motions. The prosecutor indicated she was satisfied and defense counsel said he had no motions.
We conclude that the basis for discharging Juror No. 11 appears in the record as a demonstrable reality -- the juror failed to abide by the trial court's order. Since we find no violation of section 1089 -- a statute that the California Supreme Court has previously held is consistent with state and federal constitutional proscriptions -- our conclusion also necessarily disposes of defendant's constitutional claims. (Martinez, supra, 47 Cal.4th at p. 943, fn. 6.)
II. Evidence of Uncharged Acts
Defendant argues the trial court prejudicially erred in admitting uncharged acts under Evidence Code section 1101. We conclude the evidence was admissible under subdivision (b) of that statute to establish intent and motive. We also conclude it was admissible under Evidence Code section 1108 to establish propensity, contrary to the trial court's ruling.
Evidence Code section 1101 provides in pertinent part: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Evidence Code section 1108 provides: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [¶] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 [discovery] of the Penal Code. [¶] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code. [¶] (d) As used in this section, the following definitions shall apply: [¶] (1) 'Sexual offense' means a crime under the law of a state or of the United States that involved any of the following: [¶] (A) Any conduct proscribed by Section 243.4 [sexual battery], 261 [rape], 261.5 [unlawful sexual intercourse], 262 [rape of spouse], 264.1 [aiding or abetting rape], 266c [inducing commission of sexual act through fear], 269 [aggravated sexual assault of child], 286 [sodomy], 288 [lewd act on child], 288a [oral copulation], 288.2 [distribution or exhibition of lewd material to minor], 288.5 [engaging in three or more acts of substantial sexual conduct with child under age 14], or 289 [sexual penetration by foreign object], or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11 [all involving obscene matter], 314 [indecent exposure], or 647.6 [annoy or molest a child under age 18] of the Penal Code. . . ." (Italics added.)
A. Additional Background
The prosecutor moved in limine to introduce uncharged conduct evidence under Evidence Code sections 1101 and 1108, specifically, evidence that defendant at various times within a year before the date of the charged crimes had stared at the breasts of the victim and her stepsister through their tank tops or tube tops, licked his lips and said, "mmm," making them uncomfortable. Defendant objected on the ground that the uncharged conduct was not sufficiently similar to the charged conduct.
The trial court allowed the evidence to come in under Evidence Code section 1101, subdivision (b). The court stated, "What is similar here is a manifestation of sexual interest by an adult in a child. And this is in the context of children who are twelve years old and given the time frames of the offer of proof would extend to a child, [the victim], who was 11 years old, and would extend to [her stepsister], a child who was 13 and may or may not have been 12. [¶] So there is similarity there, and it's powerful because it is not usual to have adult interest in the sexual aspect of sexual interest in a child of that age. [¶] Now, there certainly isn't the kind of similarity you see rising to a level of identity or some other things, but the law recognized that for motive and intent you don't need as much similarity. [¶] And here there is probative value. It's real probative value dominantly from the Court's perspective as to motive, but also as to intent which is an element to the crime charged. [¶] So it's probative and you look at the prejudicial effect, there is inherently some prejudicial effect in these situations, but in this instance this is for conduct which is comparatively minor. [¶] It is recent conduct in relationship to the charged incident. It comes from a separate independent source. It is corroborated by [the stepsister] who is not [the victim]. [¶] It is something which obviously isn't going to take much time before the Court, and as the defense points out here, ultimately this is something that jurors using their common sense can sort out as well. [¶] But it's within the scope of 1101 properly. It is not excluded for [sic] 352. [¶] The 1101 request is granted as to the issue of motive and intent on that conduct."
The trial court ruled that Evidence Code section 1108 (fn. 10, ante.) was inapplicable, because it allows only evidence of uncharged conduct that constitutes a "sexual offense" as defined in Evidence Code section 1108, and based on the prosecution's argument, the court erroneously ruled that the uncharged conduct did not amount to a sexual offense enumerated under Evidence Code section 1108. The trial court told the prosecutor that it was the prosecution's burden to bring to the court's attention what enumerated sexual offense was committed by the uncharged conduct. The prosecutor incorrectly said, "It is not an enumerated sexual offense, your Honor."
B. Analysis
We review a trial court's ruling on admissibility of evidence under an abuse of discretion standard. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.) We uphold the trial court's ruling absent a clear abuse of discretion in that the court's ruling was arbitrary, whimsical, or capricious as a matter of law. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.) Also, "a valid evidentiary ruling will generally be upheld even if the originally stated reason is in error." (People v. Rios (1985) 163 Cal.App.3d 852, 866 (Rios).)
Defendant argues the evidence was improperly admitted to prove intent under Evidence Code section 1101, because his intent was not at issue. We disagree. Defendant is silent on whether the evidence was admissible to prove motive.
"[T]he admissibility of uncharged crimes depends upon three factors: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove or disprove the material fact (i.e., probative value); and (3) the existence of any rule or policy requiring the exclusion of relevant evidence (i.e., prejudicial effect or other § 352 concern)." (People v. Hendrix (2013) 214 Cal.App.4th 216, 238.) Section 1101, subdivision (b), expressly allows the introduction of uncharged acts for the non-character purposes of establishing intent and motive, both of which are material facts. Here, the intent required for the charges is "the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child." (§ 288, subd. (a).)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Defendant quotes from People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), that "Evidence of intent is relevant to establish that, assuming the defendant committed the alleged conduct, he or she harbored the requisite intent. In testifying regarding the charges of lewd conduct, [the victim] stated that defendant repeatedly molested her, fondling her breasts and genitals and forcing her to touch his penis. If defendant engaged in this conduct, his intent in doing so could not reasonably be disputed. [Citations.] As to these charges, the prejudicial effect of admitting evidence of similar uncharged acts, therefore, would outweigh the probative value of such evidence to prove intent." (Id. at p. 406 & fn. 7 [holding the evidence was nevertheless admissible to show common scheme or plan].)
Defendant argues the same applies here, because if the conduct attributed to defendant by the victim occurred, there would be no question as to intent. He argues the uncharged conduct evidence was highly prejudicial because it suggested predatory conduct, and the probative value was slight because his intent for the charged offense was not in dispute, and the question was whether he committed the acts.
Defendant is wrong. His intent was at issue because he admitted touching the victim, but implied he did so innocently, claiming he simply patted her shoulder and told her, " 'There there, it's okay.' " He thus denied any sexual intent and instead claimed he touched her only to console her. Also, defendant introduced the testimony of the victim's natural mother who claimed the victim told her that when defendant hugged her, he touched the top part of her chest on top of her clothes and that defendant did not grope or caress the victim's breast. One could infer from this testimony that any touching of the breast was accidental. Thus, the probative value of any evidence showing intent was high.
Defendant is also wrong in arguing that allowing the evidence under Evidence Code section 1101 violated Evidence Code section 352. His primary argument on this point is: "The probative value of the evidence was slight, because [defendant]'s intent was not in dispute; the question was whether [he] committed the acts. The prejudicial effect of the evidence that [he] had looked down [the girls'] tops was highly prejudicial because it suggested predatory conduct." Defendant also argues in his reply brief that the prior conduct was dissimilar to the charged conduct. However, defendant's argument fails because it is based on his flawed view that his intent was not in dispute.
We do not agree with the trial court that the evidence came from an independent source. The stepsister here appears to be in the same position as the victim's sister in Ewoldt, where the court said the sister was not an independent source. (Ewoldt, supra, 7 Cal.4th at pp. 404-405.) There, the court discussed the independent source factor as one that relates to probative value, not prejudice. Specifically, the court stated, "The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense. For example, if a witness to the uncharged offense provided a detailed report of that incident without being aware of the circumstances of the charged offense, the risk that the witness's account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced. The probative value of such evidence would increase further if independent evidence of additional instances of similar misconduct, committed pursuant to the same design or plan, were produced." (Ibid.) In other words, if a child unrelated to the victim independently reported the conduct, not knowing the victim or what defendant did to the victim, then the probative value of that child's other crimes testimony would be enhanced. The court went on to explain, "These factors are of limited significance in the present case, however, because it was only after learning that [the victim] had made a similar accusation, that [the victim's sister] accused defendant of molesting her. The source of [victim's stepsister]'s testimony, therefore, is not wholly independent of the evidence of the charged offenses." Here, the victim reported defendant's conduct to her stepsister after defendant molested her. Consequently, we cannot say the stepsister's testimony was independent. True, the stepsister did not testify about the same type of conduct, but we cannot say she was truly an independent source given the Ewoldt court's explanation of that factor. In any event, whether she was independent or not is considered on the probative value side of the section 352 balancing, not the prejudice side, and the Ewoldt court saw such a circumstance as something that would enhance the probative value. While that enhancement is missing here, there is no evidence in the record suggesting the stepsister's testimony about conduct different from that underlying the charged crimes was contrived or the product of collusion between her and the victim.
As to similarity and the probative value stemming therefrom, "[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] 'The recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (Ewoldt, supra, 7 Cal.4th at p. 402.) The conduct here was similar enough. As to both the victim and her stepsister, the conduct evinced sexual attraction and desire for girls who were relatively close in age. Moreover, that attraction focused on a specific part of their anatomy, their breasts.
As an additional probative value factor related to intent, we note the timing of the prior conduct. As the trial court noted, the prior acts were recent rather than remote in time. The closeness in time and the ages of the children during this time period enhanced the probative value.
As the trial court noted, the evidence was also admissible to establish motive. Thus, the probative value was enhanced because the evidence was admissible to establish this additional material fact. Because the prior conduct evidence related to the victim (not just to her stepsister), it was admissible to establish motive because such conduct evinced a sexual desire focused on the victim. Prior conduct of a sexual nature toward the same victim is evidence of motive to commit the charged offenses. Defendant was not entitled to have the jury determine his guilt or innocence based on a "false presentation" of his past conduct toward the victim. (See People v. Fruits (2016) 247 Cal.App.4th 188, 204 [prior threats and acts of violence toward the victim evincing antagonism and enmity toward the victim is evidence of motive for committing the charged threats and acts of violence as to the same victim].)
As we discuss post, defendant's own expert witness testified that the conduct, "Shows me an inclination again that someone may be attracted to someone."
As for prejudice, " ' "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " ' " (People v. Holford (2012) 203 Cal.App.4th 155, 167.) Also, "[e]vidence is not inadmissible under section 352 unless the probative value is 'substantially' outweighed by the probability of a 'substantial danger' of undue prejudice or other statutory counterweights. Our high court has emphasized the word 'substantial' in section 352. (People v. Tran (2011) 51 Cal.4th 1040, 1047 [126 Cal.Rptr.3d 65, 253 P.3d 239] ['But Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect'].)" (Holford, at p. 167.) In making its ruling, the trial court said, "there is inherently some prejudicial effect in these situations, but in this instance this is for conduct which is comparatively minor." We agree with the trial court's characterization that the prior conduct was comparatively minor. In other words, it was not at all inflammatory. Nor was there an undue consumption of time devoted to this evidence. And the trial court provided a limiting instruction as to this evidence, which instructed the jury on more than defendant was entitled to. Per CALCRIM No. 375, the jury was instructed that they could, but were not required to, consider the evidence for the limited purpose of deciding whether defendant "had a motive and/or mental state to commit the offenses," to not consider the evidence for any other purpose, and to "not conclude from this evidence that the defendant has a bad character or is disposed to commit [a] crime."
This was more than defendant was entitled to. As we discuss next, the jury was entitled to consider the evidence as tending to show propensity pursuant to Evidence Code section 1108.
We conclude the trial court properly allowed the evidence under Evidence Code section 1101, subdivision (b), to establish intent and motive.
The trial court found Evidence Code section 1108 inapplicable because the prosecutor mistakenly conceded the uncharged conduct did not amount to one of the sexual offenses enumerated in the statute. Evidence Code section 1108 does not require the uncharged conduct to constitute the same type of sexual offense for which the defendant is on trial. Rather, Evidence Code section 1108 allows evidence of uncharged conduct constituting any of several enumerated sexual offenses, and it expressly lists section 647.6 as one of the enumerated sexual offenses. (See fn. 10, ante.)
Section 647.6 provides in pertinent part: "(a)(1) Every person who annoys or molests any child under 18 years of age shall be punished . . . ." (§ 647.6, subd. (a)(1).) The words " 'annoy' " and " 'molest' " in section 647.6 "are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person." (People v. Lopez (1998) 19 Cal.4th 282, 289.) The statute "does not require a touching [citation] but does require (1) conduct a ' "normal person would unhesitatingly be irritated by" ' [citations], and (2) conduct ' "motivated by an unnatural or abnormal sexual interest" ' in the victim." (Ibid.) Section 647.6 may apply to ambiguous conduct. (See People v. Kongs (1994) 30 Cal.App.4th 1741, 1749-1751 [defendant took photographs of young girls while "surreptitiously aiming his camera up a child's dress rather than photographing her face or entire clothed body"]; People v. Thompson (1988) 206 Cal.App.3d 459, 461-462, 468 [the defendant repeatedly drove alongside a 12-year-old girl riding her bicycle, stared at her, and on one occasion made gestures toward her with his hand and lips], criticized on other grounds in People v. Phillips (2010) 188 Cal.App.4th 1383, 1391.)
Here, the uncharged conduct of getting close to the young girls, leering at their breasts and making an "hmmm" sound was disturbing, and it is difficult to infer a motivation other than unnatural or abnormal sexual interest in the girls. Indeed, it has been noted in the context of section 647.6 that " 'there can be no normal sexual interest in any child.' " (People v. Brandao (2012) 203 Cal.App.4th 436, 441; People v. Shaw (2009) 177 Cal.App.4th 92, 103 (Shaw).)
As we have noted, "a valid evidentiary ruling will generally be upheld even if the originally stated reason is in error." (Rios, supra, 163 Cal.App.3d at p. 866.) We conclude the uncharged evidence was admissible under both Evidence Code section 1101 and Evidence Code section 1108.
Although not mentioned by the parties, we also note that once defendant put his character in issue by Dr. Wicks's testimony that he lacked a propensity to commit the charged offenses, the evidence of defendant leering at the breasts of the victim and her stepsister would have been admissible under Evidence Code section 1103, subdivision (a)(1). Indeed, the jury was properly instructed under CALCRIM No. 350 concerning the application of this rule.
III. Sufficiency of Evidence of Duress
Defendant argues the evidence was insufficient to prove the duress relied upon by the prosecutor to sustain his conviction on count three, aggravated lewd and lascivious acts with a child under 14 (§ 288, subd. (b)(1)). This count related to the molestation in the bathroom. We conclude the evidence was more than sufficient.
In reviewing a claim of insufficiency of the evidence, we "must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal on grounds of insufficiency of the evidence is "unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331, italics added.)
Section 288, subdivision (b)(1), provides, "Any person who commits an act described in subdivision (a) [lewd or lascivious act upon or with the body of a child under age 14, with sexual intent] by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony . . . ."
The prosecution advanced a duress theory. " 'Duress' " in this context means " 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations.] 'The total circumstances, including the age of the victim, and [her] relationship to defendant are factors to be considered in appraising the existence of duress.' [Citation.] Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." (People v. Cochran (2002) 103 Cal.App.4th 8, 13-14 (Cochran), disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto).) Duress is determined based on the totality of circumstances, including the age of the victim, the relationship between victim and perpetrator, the disparity in size between them, and the location of the molestation. (People v. Pitmon (1985) 170 Cal.App.3d 38, 51, disapproved on other grounds in Soto, at p. 248, fn. 12.)
As defendant acknowledges, "the legal definition of duress is objective in nature" and "the focus must be on the defendant's wrongful act, not the victim's response to it." (Soto, supra, 51 Cal.4th at p. 246 [consent is not a defense to aggravated lewd conduct under § 288, subd. (b).)
Defendant cites People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), for the proposition that the victim's fear of the defendant will not, in and of itself, support a finding of duress unless there was also evidence that the defendant did something to cause that fear. (Id. at p. 1321.) However, we do not rely on the victim's fear alone here, and Espinoza is distinguishable.
In Espinoza, the defendant was convicted of aggravated lewd and lascivious acts on a child under 14 (§ 288, subd. (b)) and attempted forcible rape (§§ 261, subd. (a)(2), 664), as well as four counts of lewd acts on a child (§ 288, subd. (a)) for molestation he perpetrated on his 12-year-old developmentally challenged daughter. (Espinoza, supra, 95 Cal.App.4th at pp. 1291-1293.) The Espinoza court described the molestation upon which the aggravated lewd acts and attempted forcible rape charges were based as follows: "The fifth and final molestation occurred in the early morning hours . . . . On this occasion, [the defendant] not only rubbed [the victim's] body but he also put his tongue in her mouth, licked her vagina and tried to put his penis in her vagina. [The victim] could feel '[s]omething going in me.' [The victim] 'moved' to prevent defendant's penis from going inside her." (Id. at p. 1293, fn. omitted.) The court said nothing else about how the defendant attempted the intercourse other than that the defendant did nothing to overcome the victim's movement and he "did not grab, restrain or corner" the victim as had happened in a case the Espinoza court distinguished. (Id. at p. 1320 & fn. 8.) The victim in Espinoza testified she was afraid the defendant " 'would come and do something' if she reported the molests," so she did not report what had happened. (Id. at p. 1293.) The prosecution's theory was duress. (Id. at p. 1319.) The Espinoza court reasoned that the evidence did not establish an implied threat by defendant, because there was no evidence the victim's fear was the result of something the defendant did or said. (Id. at pp. 1320 & fn. 8, 1321.)
Here, defendant did something that implied the threat of force, violence, or danger, under the circumstances. Defendant molested the victim in her bedroom, followed her to the bathroom when she tried to escape, opened the bathroom door which she had closed to keep him from coming inside, entered the bathroom, and closed the door. He situated himself in this "very small" bathroom in such a way that the victim could not leave. He put his hand on the wall over her head. Then his hand came down and he reached under her shorts and touched her thigh, moving his hand back and forth. During this time, defendant was openly wearing a knife attached to a belt loop. The victim was afraid and told him to get away. That she summoned the courage to push him away and tell him to get out, despite her fear, does not inure to defendant's benefit. (People v. Veale (2008) 160 Cal.App.4th 40, 46-47 [found substantial evidence of duress even though victim on occasion challenged defendant and he stopped].) As we have noted, "the focus must be on the defendant's wrongful act, not the victim's response to it." (Soto, supra, 51 Cal.4th at p. 246.) Additionally, the victim was 12 years old, and defendant -- though only 37 years old at the time -- was a grandfather figure to her. (Pitmon, supra, 170 Cal.App.3d at p. 51 [noting the victim's age and the relationship to the defendant as circumstances to consider in determining the sufficiency of evidence of duress].)
Thus, defendant's conviction does not rest on the victim's fear alone, and the totality of circumstances prove duress.
Defendant cites People v. Hecker (1990) 219 Cal.App.3d 1238 (disapproved on other grounds in Soto, supra, 51 Cal.4th at p. 248, fn. 12), which found insufficient evidence of duress where a defendant had vaginal and anal intercourse with his 12-year-old stepdaughter. She did not resist because her prior efforts to resist had been unsuccessful. (Id. at pp. 1241-1242.) The victim in that case said she was not consciously afraid of the defendant, and he never used physical force except when he once held her head down during oral copulation. (Id. at p. 1250.) He warned her not to report his behavior because it would hurt his marriage and career. The appellate court said that, although the victim testified she felt " 'pressured psychologically' " and was " 'subconsciously afraid,' " there was no evidence the defendant was aware of or sought to take advantage of her fear. (Id. at p. 1250.) The appellate court said that psychological coercion "without more does not establish duress. At a minimum, there must be an implied threat of 'force, violence, danger, hardship or retribution." (Id. at pp. 1250-1251, fn. omitted.)
Here, we do not rely on psychological coercion "without more." We also note Hecker was criticized in Cochran, supra, 103 Cal.App.4th at page 15, in which the court said, "The very nature of duress is psychological coercion[,]" and a threat to a child of adverse consequences, such as a break-up of the family, may suffice to establish duress, particularly if the child is young and the defendant is her parent. (Ibid.) The Cochran court concluded there was duress where the victim was only nine years old; the perpetrator was her father; there was a great disparity in their height and weight; the father's videotape of the molestation showed her reluctance and him telling her what to do; and she gagged while orally copulating him and continued only to comply with parental authority. (Ibid.) Because of the distinguishing features between Cochran and the instant case, we need not and do not rely on Cochran. We simply conclude the defendant's conduct here is sufficient to establish that he committed a lewd or lascivious act upon the body of the victim "by use of . . . duress." (§ 288, subd. (b).)
We conclude substantial evidence of duress supports the section 288, subdivision (b)(1), conviction.
IV. Intoxication Instruction - Claim of Ineffective Assistance of Counsel
A. Background and Defendant's Contentions
Defendant contends his trial counsel rendered ineffective assistance by failing to request a jury instruction (CALCRIM No. 3426) that intoxication could negate the specific intent to commit the charged offenses, even though witnesses testified defendant was drunk, defendant admitted drinking before the incident, and the defense expert testified that defendant was more likely to commit the crimes if he was intoxicated. Defendant further argues that trial counsel should not have called the expert to so testify if counsel had made a tactical choice not to request the instruction. We conclude that trial counsel did not render ineffective assistance of counsel.
At trial, defense counsel called Dr. Wicks to testify about three areas: (1) His opinion about whether defendant had the propensity to commit the charged crimes; (2) defendant's personality traits that explained why defendant put himself in a compromising situation being alone with the victim; and (3) various aspects of CSAAS. Defendant focuses on Dr. Wicks's testimony related to propensity and his personality traits in arguing that trial counsel should have requested the intoxication instruction.
Before Dr. Wicks testified in front of the jury, the trial court conducted an Evidence Code section 402 hearing to address a prosecution objection to his expected testimony. Dr. Wicks had written a psychological and comprehensive risk assessment of defendant, which was ultimately admitted into evidence "for [the] Court only."
During the Evidence Code section 402 hearing, the trial court questioned Dr. Wicks as to whether he was using the risk assessment to opine about future behavior (risk of recidivism) or to opine that it was unlikely defendant committed the charged offenses. The expert said he was using the assessment to conclude that defendant did not have the propensity to commit the charged offense and was at low risk for committing criminal misconduct, but the expert was not rendering an opinion that defendant did not commit the charged offense. His opinion about defendant's propensity was to be based on the psychological risk assessment he conducted and the lack of prior history of sexual misconduct.
In response to further questioning by the court, Dr. Wicks agreed that, "If [defendant] continues to drink alcohol, he will remain at risk for alcohol related crimes including DUIs, or impulsively acting out while under the influence." When asked if that included sexual crimes, Dr. Wicks testified, "Well, to this date he has no history of a sexual crime. He has a history of being stupid when he is drunk." The trial court asked if the tests used in the risk assessment could be used to "assess risk retroactively," by which the court meant, "whether or not the person has a propensity to commit a crime that allegedly has already been committed." The expert said the tests now "can be used either/or."
The prosecutor withdrew her objection.
The trial court said "future recidivism" did not seem relevant and asked the expert whether past and future were inextricably intertwined such that he must look to the future in order to make inferences about "recidivism in a retroactive way." The expert said, "It is actually in kind of reverse. You are looking at the person's past history, what they've done, what they haven't done, what their character has been like, what strengths and weaknesses do they have, what are [sic] propensity, you know, for multiple areas, and then you are assessing for the future risk. But you are dealing with all the same issues."
The court ruled that, given the prosecutor's withdrawal of her objection, the court would allow the expert to testify and would address any specific objections as they arose.
In front of the jury, Dr. Wicks explained he was asked to do a general psychological evaluation of defendant and specifically to look at whether defendant had a propensity to commit the charged crime. Dr. Wicks testified that his "number one diagnosis" for defendant was alcoholism. He also diagnosed defendant with personality disorder "NOS," which stands for "not otherwise specified," because it does not fit any one of the classic personality disorder syndromes. Dr. Wicks said defendant "has enough personality issues that he is consistently described by friends as weird." He is sometimes "socially inappropriate," and this mostly happens when drinking alcohol. Dr. Wicks went on to testify that defendant, "understands things from his point of view. He's not real good at seeing things from your point of view." Regarding placing himself in the situation of being in a bedroom or bathroom with a female child, which would be suspicious to any other adult, Dr. Wicks said defendant "doesn't really understand someone else's point of view . . . . [¶] He knows what his senses are. What his intentions are. He knows from his point of view." (Italics added.)
Wicks explained that he administered two personality tests and then did a number of rating scales that provide risk assessments. These assessments applied not only to the risk of future misconduct but also to the propensity to commit the charged crime as a first offense. They identify factors that predispose someone to committing crime. In assessing risk, Dr. Wicks looked at potential things that could "destabilize" defendant, and "the clear one there was alcohol." However, regarding defendant's propensity to commit the charged crimes, Dr. Wicks opined that defendant's "propensity is low by any measure that I used. I used all the ones that are considered the gold standard in the forensic system for this issue." However, one assessment tool measured defendant as "low to medium" risk because of alcohol. Dr. Wicks opined, "As long as [defendant] is sober, he is at a very low risk. Even drinking, he is still at a low risk because he hasn't committed -- he has not shown a propensity for child sexual abuse either in his personal habits, or in his legal record, or [in the opinion of people who know him]." Wicks further opined that defendant does not have a preference for young girls. He noted defendant "does not have the habit of coaching baseball teams, putting himself in positions where he is around children, which is a classic sign that you find in sexual child abuse criminals."
On cross-examination, in response to the prosecution's question about defendant having "a clear history of increased impulsivity in acted out while intoxicated," Dr. Wicks agreed. However, he added "that is characteristic of alcohol in general, disinhibition."
For two reasons, Dr. Wicks discounted the report that defendant had looked down the shirts of young girls. First, such reports are based on the "perception of the other person. We don't know if he was doing that or not." It is an allegation of what someone perceived. Second, "drunk guys looking at women's breasts is not news. [¶] Age doesn't make much difference." It was Dr. Wicks understanding that the stepsister was "well into adolescence and is physically endowed." When asked about the occasions when defendant reportedly looked down the tank or tube top of the stepsister and the victim and said, "hmmm," Dr. Wicks replied, "Shows me an inclination again that someone may be attracted to someone."
On further cross-examination, Dr. Wicks affirmed what he had written in his report, that "as long as [defendant] remains sober, [he] presents a relatively low-risk for violent crime, sexual crime or recidivism in the community." But if defendant continues to drink alcohol, he is at risk for alcohol-related crimes, such as DUIs. When asked about being at risk for committing other crimes while under the influence of alcohol, Dr. Wicks said, "[W]hat I am saying simply is that when [defendant] is drunk, he is stupid. He makes stupid decisions. [¶] He can act on impulse. He doesn't always act on impulse. He has been drunk an awful lot over the last 20, 30 years. Most of that time he has not been violent, nor has he been sexual, nor has he done things that got him arrested, but he has had times when he has done stupid things to get him in trouble with the law." Dr. Wicks clarified that "impulsively acting out," means defendant not reflecting on the consequences and acting on "whatever impulse happens to come your way, good, bad or indifferent. But it's an impulse you act on. . . . A range from mundane things to extremely violent things."
On redirect, defense counsel returned to the topic of defendant's personality traits. Dr. Wicks testified that defendant's "belief systems are slightly different than the average person. His thinking tends to be very narrow and constricted." He is "anal retentive" in that he tends to entrench in his own position. Dr. Wicks further testified, "It is sometimes very hard for him to see something from somebody else's perspective. It is not that he is totally incapable of it. It is just, he is inclined to go with his own belief system, his own way of looking at the world and his own sense of what is right and wrong." When asked whether this would include doing something without considering how it may appear to others, Dr. Wicks said it would. Also, a person with defendant's personality trait might disregard their surroundings while concentrating 100 percent on what they are doing.
Defendant argues that, because adult witnesses testified that defendant was drunk, defendant admitted drinking and Dr. Wicks testified defendant is at higher risk for criminal conduct when drunk, trial counsel was ineffective in failing to request a jury instruction that intoxication may negate specific intent. Defendant also argues that counsel should not have called Dr. Wicks to testify that defendant "was more likely to commit crimes while intoxicated" if counsel had made a tactical choice not to request the intoxication instruction. We conclude that trial counsel's performance was not deficient; nor was there prejudice here.
B. Analysis
1. Intoxication and Specific Intent
Before discussing the instruction, we first revisit the required specific intent for the charged crime. Section 288 requires that the prosecution prove that the defendant act with the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (§ 288, subd. (a).)
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . ." (§ 22, subd. (b), italics added.) However, "[e]vidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged . . . ." (§ 22, subd. (a), italics added.) Thus, defendant's argument is necessarily grounded on a claim that the evidence supported a finding that defendant's intoxication resulted in him not forming the intent to arouse or gratify his lust, passions, or sexual desires or that of the victim.
The trial court is not required to instruct the jury sua sponte on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1117; People v. Olivas (2016) 248 Cal.App.4th 758, 770.) Even if the instruction is requested by the defense, the court need not give the instruction unless it is supported by substantial evidence that: (1) the defendant was intoxicated, and (2) the intoxication affected the defendant's actual formation of the relevant specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715 (Roldan), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Olivas, at p. 771.)
2. Ineffective Assistance of Counsel
a. The Strickland Test
To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
The reason why Strickland's bar is high is because " '[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] . . . It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Richter, supra, 562 U.S. at p. 105.)
b. Deficient Performance
As to the deficient performance prong, there is "no expectation that competent counsel will be a flawless strategist or tactician" (Richter, supra, 562 U.S. at p. 110), and counsel's strategy is not constitutionally deficient just because it may not have worked. (Id. at p. 109 [defense counsel is not incompetent merely because the defense strategy did not work out as well as counsel had hoped].)
Here, however, there was insufficient evidence to support a voluntary intoxication instruction. Therefore, the fact that defense counsel did not request the instruction did not make his performance deficient. Counsel is not required to make futile requests for instructions for which there is no substantial evidence. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel not required to make futile objections].) Although some witnesses testified defendant was drunk, there was no evidence that defendant's intoxication actually negated the specific intent for the charged offenses. (§ 22; Roldan, supra, 35 Cal.4th at p. 715.) Indeed, defendant himself testified he was not drunk, the alcohol was not affecting him, and it did not impair his ability to remember the incident. Later in his testimony he emphasized his state of sobriety. He said, "I had been drinking, as I said before, but I was not drunk." (Italics added.) As far as his personality disorder goes, Dr. Wicks testified that defendant "knows what his senses are. What his intentions are. He knows from his point of view." Again, the specific intent at issue here is the intent to arouse or gratify his lust, passions, or sexual desires or that of the victim. (§ 288, subd. (a).)
There is circumstantial evidence that defendant knew what he was doing despite the alcohol. Defendant followed the victim into the bathroom, opened the closed door and then closed it behind him, and blocked her way out, all conduct that evinces goal directed activity. The victim testified that, as people were banging on the bathroom door, defendant said, "It's gonna [sic] look bad for me and you." And he blocked the door, initially preventing entry by the people who were trying to get in. From this conduct, it can further be inferred that defendant's conduct was goal directed.
Contrary to defendant's position, Dr. Wicks' testimony that defendant acted impulsively when intoxicated did not constitute evidence that alcohol negated the required specific intent. Rather, the expert said his impulsivity reflected the "disinhibit[ing]" characteristic of alcohol. The fact that a defendant's inhibitions may have been diminished by the alcohol does not negate an intent to arouse, appeal to, or gratify his lust, passion, or sexual desire or that of the victim. Indeed, Dr. Wicks suggested as much when he said, "[D]runk guys looking at women's breasts is not news." And there is no evidence in the record, including the testimony of Dr. Wicks, from which one could infer defendant acted without an intent for sexual gratification. If anything, the impact of alcohol on defendant's inhibitions made him more likely to act with the requisite intent, albeit impulsively. Indeed, when explaining what he meant by acting impulsively, the expert described it as acting on "whatever impulse happens to come your way, good, bad or indifferent. But it's an impulse you act on. . . . A range from mundane things to extremely violent things." Moreover, Dr. Wicks' testimony that defendant acted without reflecting on the consequences when acting impulsively because of intoxication is also without consequence, because the requisite specific intent does not require that defendant act after thinking about the consequences.
Furthermore, the absence of the intoxication instruction benefited defendant, because the instruction would have highlighted for the jury the limited use of evidence of intoxication, which can be considered "solely" on the issue of whether the defendant "actually" formed the specific intent. (§ 22; Olivas, supra, 248 Cal.App.4th at p. 770.)
CALCRIM No. 625 states in pertinent part, "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant __________<insert other specific intent required in a homicide charge or other charged offense>.]"
Moreover, the instruction was inconsistent with the defense here, which was that defendant never touched the victim in the way she described. He categorically denied having done so. The main purposes of Dr. Wicks' testimony -- to establish that defendant had a low propensity to sexually molest children, even when intoxicated, and to show why defendant put himself in a compromising position -- was intended to support his claim that he did not molest the victim. This strategy is reflected in defense counsel's closing argument. Counsel told the jury Dr. Wicks' opinion is "that my client has a low propensity or no propensity to commit such acts," and counsel emphasized that defendant had no history of placing himself in situations where he had access to children. Counsel also argued that defendant's "anal-retentive" nature related to his personality disorder made defendant oblivious to the fact that his behavior in attempting to "console" a twelve-year-old female under the circumstances here might be perceived as suspect by others. Thus, we cannot say there is no reasonable explanation for the absence of a request for the intoxication instruction.
Recently, the court in Olivas, supra, 248 Cal.App.4th 758, addressed a similar situation. There, defendant was charged with multiple counts of child molestation. His defense was that he did not commit the offense; rather, the victim was lying. (Id. at p. 771.) Yet appellate counsel argued that trial counsel's failure to request the intoxication instruction amounted to ineffective assistance of counsel. Rejecting that contention, the Olivas court wrote: "[S]uch a request would have been inconsistent with the primary defense theory that no misconduct occurred. Requesting an instruction on voluntary intoxication would have implied that defendant committed the sexual misconduct but that he was not criminally liable for his conduct because his intoxication negated the specific intent necessary to convict him under section 288. As that argument is wholly inconsistent with the primary defense theory that minor 'told a lie' and defendant did not actually engage in sexual misconduct, trial counsel had a tactical reason for not requesting a voluntary intoxication instruction." (Ibid.) The Olivas court went on to observe that while there was evidence defendant had been intoxicated, there was no evidence demonstrating how that intoxication might have negated the required specific intent for section 288 and held, "Given the absence of such evidence, defense counsel could reasonably have made the tactical decision not to request a voluntary intoxication instruction." (Id. at p. 772.)
The same applies here. Trial counsel had a strategy and that strategy was not unreasonable under prevailing professional norms. Defendant fails to establish the first prong of the Strickland test.
At oral argument, counsel for defendant argued that there was no "downside" to requesting the instruction. Appellate counsel asserted that trial counsel did not necessarily need to argue the instruction to the jury; rather trial counsel could have just requested the instruction and had it in the instruction packet. Appellate counsel suggested that trial counsel's performance was constitutionally deficient for failing to adopt this strategy. We disagree. Such a strategy is purely a matter of trial tactics. Moreover, assuming the trial court would have agreed to include the instruction in the packet, we see at least two problems with this strategy. First, as the Olivas court suggested, the instruction could have potentially distracted the jury's attention away from defendant's defense that he did not touch the victim's breasts or leg under her clothes and caused the jurors to focus on whether the touching as described by the victim was done without an intent for sexual gratification -- a focus that, given the evidence, would have resulted in the rejection of such a defense. Second, if the instruction were included in the instruction packet, it would have been reasonable for trial counsel to be concerned that the prosecutor would discuss the instruction in her initial closing argument, suggest that defense counsel might argue defendant did not have the required intent in his closing argument, highlight the fact that such a defense would be inconsistent with the defense that defendant did not touch the victim in the way she described, and argue how the intoxication evidence shows defendant may have been disinhibited by the alcohol, but that did not prevent him from having the intent to obtain sexual gratification by touching the victim. Indeed, that disinhibition may have given defendant the courage to touch the victim in the way she said. Trial counsel may have further been concerned that the prosecutor might be allowed to comment in rebuttal on trial counsel's failure to argue the instruction, asserting that trial counsel did not argue voluntary intoxication for the reason that the evidence showed defendant had the intent to sexually gratify himself, and as a consequence, the jury should completely disregard the instruction. In short, instead of there being no downside to giving the instruction, trial counsel could have reasonably thought nothing good would come of it and the instruction could potentially distract the jury from his asserted defense. In our view, competent trial counsel would have acted reasonably in rejecting the tactic suggested by appellate counsel.
c. Prejudice
Moreover, defendant fails to establish prejudice. To satisfy the burden of establishing prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, at p. 112.)
Defendant fails to carry his burden of proving prejudice for many of the reasons he failed to satisfy the deficient performance prong. Had the jury been given the intoxication instruction, defendant would have fared no better because as we have noted, there was no evidence indicating that his intoxication negated the required specific intent here -- the intent to arouse, appeal to, or gratify his lust, passions, or sexual desires or that of the victim. Quite the contrary, there was abundant evidence establishing the specific intent element here, including the previous instances where defendant leered at the victim's breasts and her stepsister's breasts. Defendant has failed to prove a reasonable probability that he would have received a more favorable result had the instruction been given.
We conclude trial counsel did not render ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: MAURO, Acting P. J. DUARTE, J.