Opinion
G057073
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. SEAN JOSEPH SCANLAN, Defendant and Appellant.
Courtney E. Pilchman, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF1047) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Courtney E. Pilchman, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Sean Joseph Scanlan of committing sex offenses against three children. On appeal, Scanlan argues that the prosecutor committed misconduct during closing argument. Scanlan also argues that his trial counsel provided ineffective assistance.
We find no errors and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
Over a period spanning several years, Scanlan committed multiple sex acts against three children: Sage G., Sarah G., and Jane Doe. Sage G. and Sarah G., 2001-2009
When Sage was eight years old in 2001, she lived with her parents, her older brother, her older sister, and Scanlan, who was then about 19 years old and married to her older sister. One day when her brother was downstairs and no one else was in the home, Scanlan asked Sage to come into her parent's bedroom. Scanlan showed Sage a magazine with pictures of people having sex, then masturbated in front of Sage. Scanlan later pulled down Sage's underwear and began "examining" her vagina with his fingers.
The dates involving Sage and Sarah are approximated based on their trial testimony.
When Sarah was seven years old in 2001, she was friends and neighbors with Sage. Sarah would frequently spend the night at Sage's house, and Scanlan would sometimes babysit. On one occasion, Sarah touched Scanlan's erect penis.
When Sage was about 15 years old in 2009, Scanlan's relationship with her sister had ended. Sage happened to see Scanlan at his workplace and they traded phone numbers. Thereafter, Scanlan would occasionally buy Sage alcohol. On one occasion, Scanlan took Sage to a hotel room where they had intercourse. Jane Doe, 2016
When Jane was five years old in June 2016, her mother dropped her off for a sleep over with her mother's friend T., and T.'s boyfriend Sean Scanlan. About a week later, Jane told her mother that "I've seen a boy and a girl naked." Jane described a man thrusting his penis. Jane's mother asked her, "'Who showed you that?'" Jane responded, "'Sean.'" Jane's mother called the police; thereafter, a social worker with the Child Abuse Services Team (CAST) conducted a forensic interview. During the interview, Jane described watching a pornographic video with Scanlan while he touched his penis. Jane also described Scanlan touching her vagina with his penis.
Jane used the words "hiney" or "thing" for penis, "Mary" for vagina, and "cleaning" or "scratching" for touching.
Court Proceedings
The prosecution filed an amended information charging Scanlan with six crimes: a lewd act upon a child (Jane); distributing pornography to a minor (Jane); a lewd act upon a minor (Sage); a lewd act upon a minor (Sage); sexual intercourse with a minor (Sage); and a lewd act upon a child (Sarah). The prosecution further alleged multiple victim allegations.
The prosecution called 12 witnesses during a seven-day jury trial, including Sage and Sarah, who testified as to Scanlan's alleged acts. Jane did not testify directly as to Scanlan's alleged acts, but the court admitted into evidence a video and a transcript of Jane's CAST interview. The jury returned guilty verdicts on all charged counts, and found true the multiple victim allegations. Prior to sentencing, Scanlan filed a motion for new trial on the grounds of ineffective assistance of counsel. The court denied the motion and sentenced Scanlan to a prison term of 55 years to life.
II
DISCUSSION
Scanlan raises two claims on appeal: A) prosecutorial misconduct; and B) ineffective assistance of counsel. A. Prosecutorial Misconduct Claim
Scanlan argues the prosecutor committed misconduct during closing argument by misstating the law about the jury's use of character (or propensity) evidence in sexual assault cases. We disagree.
1. Legal Principles
We evaluate claims of prosecutorial misconduct under well-established standards. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
Generally, in order to raise an alleged error in an appellate court, the issue must have first been raised in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Specifically, a defendant forfeits a prosecutorial misconduct claim on appeal unless the defendant objected to the alleged misconduct when it occurred, and further asked the court to admonish the jury. (See People v. Ervine (2009) 47 Cal.4th 745, 806.)
Character (or propensity) evidence is ordinarily inadmissible at trial. (See Evid. Code, § 1101, subd. (a) ["evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion"].) However, an exception applies in criminal cases involving sex offenses: "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 . . . ." (§ 1108, subd. (a).)
Further undesignated statutory references are to the Evidence Code.
Section 1108, subdivision (a), permits evidence of the defendant's guilt in one sexual offense to be used by the jury to prove the defendant's propensity to commit another sexual offense, including when both offenses are charged in the same case. (People v. Villatoro (2012) 54 Cal.4th 1152, 1159-1160.)
2. Relevant Proceedings
The trial court instructed the jury: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone." (CALCRIM No. 1190.) The court further instructed: "Each of the counts in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." (CALCRIM No. 3515.)
The court also instructed: "If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case. [¶] If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt." (CALCRIM No. 1191B.)
During closing argument, the prosecutor said to the jury: "[Jane] said he did it. Sage said he did it. Sarah said he did it. They all corroborated each other. [¶] And the law gives you some help here. If you believe it's been proven beyond a reasonable doubt that the defendant committed these crimes . . . --if you believe these girls, that's enough, but the law gives you some help. What the law tells you is that if you decide beyond a reasonable doubt that the defendant committed one lewd act upon one child, just one, you may but are not required to conclude that the defendant was disposed or inclined to commit the other charged offenses."
The prosecutor said: "If you believe it's been proven beyond a reasonable doubt, you can use the girls as evidence of each other. They corroborated each other. That's what this law says." The prosecutor also argued: "Think about [Sage and Sarah] coming in here and facing the person that did this and how much courage that takes. The testimony and [Jane's] CAST interview are enough to prove this case, and then you have the law that says they corroborate each other. That's CALCRIM 1191B that you're going to get. If you believe he did it to one, then you can conclude he did it to the other."
3. Legal Analysis
During the prosecutor's closing argument Scanlan did not object or request an admonition on the grounds of prosecutorial misconduct. The issue is therefore forfeited for purposes of appeal. (See People v. Ervine, supra, 47 Cal.4th at p. 806.)
But even if we were to consider the issue on the merits, we would not find that the prosecutor committed misconduct. The pattern jury instruction, CALCRIM No. 1191B, which concerns the jury's use of sex offenses charged in the same case, is an accurate statement of the law. (See People v. Villatoro, supra, 54 Cal.4th at pp. 1159-1160.) Although the prosecutor did not repeat verbatim the complete instruction, the prosecutor's comments essentially mirrored the words and phrasing of the pattern instruction (e.g., "you may but are not required to conclude"). Thus, the prosecutor did not commit misconduct.
Scanlan argues: "The prosecutor explicitly told the jury that if they found appellant guilty of one [lewd act] beyond a reasonable doubt, they could find he [sic] guilty on all [lewd acts]. This false statement was misleading because it incorrectly implied that the jurors did not need to apply an independent analysis and proof beyond a reasonable doubt as to each element of each crime." (Italics added.)
We disagree. The prosecutor accurately stated the burden of proof: beyond a reasonable doubt. We further reject the notion that the argument "implied" anything beyond the specific words used by the prosecutor. We also presume the jury followed the court's instruction to consider each count separately. (See People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions"].) B. Ineffective Assistance of Counsel Claim
Scanlan argues that his trial counsel rendered ineffective assistance: 1) by failing to retain and call an expert witness to challenge the CAST interview; 2) by failing to call two impeachment witnesses; and 3) by failing to prepare for trial. The appellate record does not support these claims.
1. Legal Principles
A criminal defendant has a right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) To establish an ineffective assistance claim, a defendant must show: 1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Id. at p. 689.) "'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.'" (People v. Karis (1988) 46 Cal.3d 612, 656.)
Generally, claims of ineffective assistance of trial counsel rely on facts outside of the confines of the appellate record; therefore, such claims usually are "more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) "'"[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.'" (Ibid.)
2. Relevant Proceedings
Following the jury's verdicts, the court permitted Scanlan to substitute in a privately retained attorney for appointed counsel. Prior to sentencing, Scanlan filed a motion for new trial alleging ineffective assistance by his appointed counsel, Justin Glenn. Scanlan did not attach a declaration from either himself or Glenn. Scanlan did not attach a declaration from any proposed expert witnesses. Scanlan did not attach a declaration from any proposed percipient witnesses.
At the hearing on the motion for new trial, Scanlan did not call any experts, or any other witnesses to testify. After reviewing the moving papers and listening to oral argument, the court held that it "is unable to make the call that Mr. Glenn's performance was below the standard of care." Further, the court pondered that if "there is an absence of any evidence . . . how would the result be different? [¶] And so based upon all of that, the court at this time will deny the defendant's motion for a new trial."
3. Legal Analysis
Scanlan alleges that his counsel rendered ineffective assistance because "counsel did not retain nor did he call an expert witness at trial to discuss the psychology behind interviewing children regarding sexual abuse." (Italics added.) But there is no evidence in the record to support Scanlan's allegation that his counsel failed to consult such an expert (counsel may have decided not to call an expert for a myriad of reasons). Further, there is no indication as to what testimony such an expert may have provided. Moreover, there is no showing as to how the result of the trial would have been different in the absence of the alleged ineffective assistance. (See People v. Wrest (1992) 3 Cal.4th 1088, 1116 ["The record contains no reference to any such evidence; without engaging in speculation, we cannot infer anything about its existence, availability, . . . or the probable consequences of its use at trial"].)
Similarly, Scanlan alleges that his counsel rendered ineffective assistance because he failed to call two "impeachment" witnesses to testify (a police officer and a social worker). Scanlan alleges that these two witnesses would have contradicted Sage's trial testimony (Sage apparently gave a differing initial account of what had occurred according to a police report attached as an exhibit to the new trial motion). But there is no evidence as to whether or not these two witnesses were, in fact, considered and rejected by counsel for tactical reasons. (See People v. Bolin (1998) 18 Cal.4th 297, 334 ["Whether to call certain witness is . . . a matter of trial tactics, unless the decision results from unreasonable failure to investigate"].)
Finally, Scanlan alleges that his trial counsel rendered ineffective assistance because he "was clearly unprepared for trial. He did not watch the CAST interview until the trial had officially begun." Apparently, Scanlan is referring to a comment made by his counsel in a pretrial hearing several days before jury selection began. The prosecutor had apparently told Scanlan's counsel that she intended to redact about 20 minutes from Jane's CAST interview. At the hearing, Scanlan's counsel told the court: "I need to -- I'm going to examine that CAST tape today and look at it and I may be asking that it not be redacted." This statement does not support Scanlan's allegation. Scanlan's counsel did not say that he had never previously watched the CAST interview. Counsel may have simply meant that he needed to examine the CAST interview (again) in light of the prosecutor's intended redaction.
In sum, we cannot make a finding of ineffective assistance of counsel based on the record before us. (See People v. Karis, supra, 46 Cal.3d at p. 656 ["'The proof . . . must be a demonstrable reality and not a speculative matter'"].)
On appeal, Scanlan is not challenging the trial court's denial of his motion for new trial (brought on the grounds of ineffective assistance of counsel). Were we to address that claim, we would affirm the trial court's ruling based on the record before us. --------
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.