Opinion
A147365
09-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SULLIVAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C177029)
Joseph Sullivan was tried and convicted, by a jury, of kidnapping to commit a sex crime (Pen. Code, § 209, subd. (b)(1); count one), forcible rape (§ 261, subd. (a)(2); count two), and forcible oral copulation (§ 288a, subd. (c)(2)(A); count three). The jury also found true allegations that Sullivan kidnapped his victim within the meaning of the "One Strike" law (§ 667.61, subd. (d)(2)). At a bifurcated trial on prior convictions, Sullivan admitted having suffered one prior serious or violent felony conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), and having served three prior prison terms within the meaning of section 667.5, subdivision (b). Thus, pursuant to the One Strike law and the "Three Strikes" law, the trial court sentenced Sullivan to a determinate term of 18 years, plus a consecutive indeterminate term of 114 years to life in state prison. Sullivan appeals, contending his trial counsel rendered ineffective assistance by promising the jury Sullivan would testify. He also contends the trial court erred by not staying execution of his sentence on count one, pursuant to section 654. We modify the sentence but otherwise affirm.
Undesignated statutory references are to the Penal Code.
Sullivan also filed, on August 16, 2017, a petition for writ of habeas corpus (A152147). By separate order, we deny the petition without prejudice to Sullivan's right to pursue habeas corpus relief in the superior court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the night of June 16, 2015, Jane Doe was working as a prostitute in Oakland. Around 11:30 p.m., an orange Lexus sedan approached. The driver, later identified as Sullivan, rolled down the window and agreed to a "date" with Jane for $100. Jane sat in the passenger seat and directed Sullivan to a motel where she had rented a room. When Jane protested that Sullivan had not shown her his money, Sullivan punched her repeatedly in the face and took her cell phone. Jane attempted to escape but was unable to open the passenger side door. Jane complied with Sullivan's instructions to take off her clothes and Sullivan drove, via the 580 freeway, toward San Leandro. He exited the freeway in Hayward.
Loitering charges were pending against Jane at the time of trial.
At the preliminary hearing, Jane testified she had already removed her clothes when Sullivan took her cell phone.
After stopping once for Sullivan to urinate, Sullivan drove to the end of Depot Street and parked the car in front of a gated apartment complex. After Jane made a second unsuccessful attempt to escape—this time from the rear passenger side door, Sullivan resumed punching her in the face. Jane testified Sullivan strangled her until she could not breathe.
Continuing to think about how she could escape, Jane engaged Sullivan in conversation. Sullivan told her he had "been in the streets his whole life" and "had been in and out of jail." Jane told Sullivan, "he didn't have to do things like this." Sullivan became angry and told her repeatedly to "shut the fuck up." Jane told him she was "a good bitch" and he could call her daddy and ask him. Sullivan strangled Jane again until she lost consciousness.
Jane woke up when Sullivan hit her face. She asked if he was going to rape her and kill her. Sullivan said he was not going to kill her, but "he would put [her] somewhere and nobody would ever find [her]." He pulled out a pocket knife and held the blade along Jane's cheek. While Jane cried, Sullivan forced Jane to orally copulate him and then raped her. He did not use a condom.
After he ejaculated, Sullivan instructed Jane to clean herself and get dressed. Sullivan began to fall asleep, laying across the back seat. When he began to snore, Jane climbed into the driver's seat and attempted to open the driver's door. The car alarm sounded, waking Sullivan. He grabbed Jane by the hair and punched her in the head, while Jane screamed and kicked at the driver's door. She eventually opened it and screamed for help. Sullivan pushed Jane out of the car and drove off.
When interviewed by a police officer, on June 17, 2015, and at the preliminary hearing, Jane said she dressed after Sullivan fell asleep.
Jane flagged down a man who was driving by. Jane asked to use the man's phone and said she had been kidnapped, raped, and beaten. The passerby observed Jane appeared "really shaken up," her nose was bloodied, and she had a swollen eye. He called 911 and a recording of the call, corroborating his testimony, was played for the jury. During the call, Jane's voice could be heard saying, "He got me from Oakland and he drove me out here." She did not know her assailant, but said, "He was driving an orange Lexus enforcer." When the dispatcher asked how long ago her assailant left, Jane said, "like ten minutes ago. I jumped out of his car and the car alarm went off. . . . I opened the door and I was screaming for help, so he threw me out. And drove off."
An independent 911 call had been made minutes earlier by a woman who lived in an apartment complex near the intersection of Depot Road and Industrial Boulevard. The caller said she woke up around 4:30 a.m. to the sounds of screaming and a car alarm. She heard a woman scream, "Somebody, please help me!"
On June 17, 2015, Jane underwent a sexual assault response team (SART) examination. Jane told the examiner her assailant punched her in the face multiple times, put a knife to her back and neck, pulled her hair, strangled her, and slapped her multiple times on the right side of her face. In describing the forcible sex acts, Jane said she was penetrated vaginally, no condom was used, and her assailant ejaculated. She also said he forced her to orally copulate him. The SART examiner found injuries consistent with her stated history, but no injury to her internal genitals.
However, Jane specifically said she had not lost consciousness when strangled.
When interviewed by an Oakland police officer on August 5, 2015, Jane described a violent penetration that had "ripped" her vagina. She mentioned a knife, but did not say anything about being strangled or losing consciousness.
During cross-examination, the defense played a video recording of Jane on August 5, 2015, pacing alone in the interview room. Jane said, "Really, like, my career should be an actress cuz I swear I'm so good at that shit."
Sullivan's DNA was matched to sperm collected from Jane's vagina during the SART exam. On August 14, 2015, when police showed Sullivan a photograph of Jane, Sullivan said he never had sex with her and had not seen her before.
Opening Statements
The prosecutor's opening statement had briefly described the evidence as presented above. Defense counsel's opening statement had suggested Jane's version of events was not credible and laid out a consent defense: "[Sullivan] did not rape Jane Doe. [Sullivan] did not kidnap Jane Doe. [Sullivan] did not force Jane Doe to orally copulate him. Jane Doe made up these allegations because she tried to rob [Sullivan] and she got caught. . . . [¶] . . . [¶] [On June 17th, 2015, Sullivan] was driving around East Oakland looking to hire a prostitute for a date. He's in between relationships, he had used prostitution services before, and decided to see if he could find a woman to hire for a date that night. [¶] . . . [¶] . . . Jane Doe was not kidnapped. She was in that car voluntarily. Jane Doe willingly performed sex acts with [Sullivan] in exchange for money. Jane Doe expected to be compensated at the end of the night for both her time and her services to [Sullivan]. [¶] After they had sex in the back of his car, they both got dressed. . . . [A]nd they lie down on the back seat and [Sullivan] ends up falling asleep. He's not sure how long he slept for, but the next thing he remembers is he wakes up and Jane Doe is climbing over the center console into the driver's seat about to open the door and [Sullivan] sees she's holding his wallet and his watch. Instinctively, [Sullivan] grabbed her by the back of her hair and he reaches around and tries to grab his property back and ends up slapping her several times. Jane Doe and [Sullivan] struggle. . . . When [Sullivan] sees that she drops his wallet into the front passenger seat of the car, he lets go. He actually pushes her out of the car. . . . [¶] . . . [¶] This is also when Jane Doe's web of lies began. And while her general story that she was kidnapped and raped has been consistent over its numerous recitations, there have been major, major inconsistencies in [Jane's] telling of the story. . . . [¶] . . . [¶] During the trial you're going to learn that [Sullivan] is not perfect. He's the first to admit that he's made his fair share of mistakes in his 31 years. He dropped out of high school at age 16 because he got his girlfriend pregnant. He has a felony conviction, a felony record. He's not a saint. But [Sullivan] is not a rapist." (Italics added.)
Motion in Limine Rulings
Before opening statements were given, the trial court denied a defense motion in limine to exclude, if Sullivan testified, impeachment with his felony convictions (evading an officer, dissuading a witness by force or threat, and commercial burglary). All three prior convictions were deemed admissible for impeachment. The trial court also ruled admissible, pursuant to Evidence Code sections 1101, subdivision (b) and 1108, testimony from Susan Doe that, while working as a prostitute in March 2015, Sullivan kidnapped and forcibly raped her in the backseat of the Lexus. The trial court excluded evidence of four prior domestic violence incidents against C.J., Danielle R., and Y.W., which the People had also sought to admit in its case in chief to show intent, pursuant to Evidence Code section 1101, subdivision (b). However, at the time both opening statements were made, the trial court had not yet ruled on whether the domestic violence incidents against C.J., Danielle R., and Y.W., could come in for impeachment, under Evidence Code, sections 1101, subdivision (c) or 1103, subdivision (b), should Sullivan testify.
In their motion, the People represented: "On May 29, 2015, . . . [an Oakland Police Department officer] reported . . . to investigate a report of domestic violence, which was later determined to involve [Sullivan] and his then girlfriend [C.J.]. [C.J.] stated that she was in her car with [Sullivan] . . . when [Sullivan] backhanded her in the face and 'choked' her during an argument. . . . [Sullivan] was not subsequently arrested or charged. [¶] . . . [¶] On October 11, 2014, . . . [a San Francisco Police Department (SFPD) officer] responded . . . to investigate a report of domestic violence against [C.J.] by [Sullivan], which was reported by [C.J.'s] mother. . . . She saw [Sullivan] and [C.J.] argue . . . and then [Sullivan] punched [C.J.] once in the head. . . . [Sullivan] was not subsequently arrested or charged. [¶] . . . [¶] On May 13, 2010, . . . [a Richmond Police Department officer] . . . investigate[d] a report of domestic violence involving [Danielle R.] and her then boyfriend, [Sullivan]. . . . [Sullivan] . . . slapped [Danielle R.] in the face so hard that she fell back upon the bathroom door. [Sullivan] continued to slap her in the face, but transitioned to punching her in the face when she was able to stand back up. He punched her several times in the face . . . [and] jumped on top of her and began 'choking' her. . . . [Sullivan] was later arrested and convicted of a misdemeanor violation of . . . assault with force likely to produce great bodily injury . . . . [¶] . . . [¶] . . . [¶] On October 22, 2009, . . . [Y.W.] . . . report[ed] domestic violence involving [Sullivan]. [Y.W.] told [an SFPD officer] she and [Sullivan] got into a verbal argument . . . while they were driving. [Sullivan] became angry and grabbed [Y.W.] by the hair. He then pulled the car over and began punching her in the face and body area with a closed fist. He slapped her several times as well. . . . [Sullivan] was not subsequently arrested or charged." --------
On the morning the prosecution was anticipated to rest its case in chief, defense counsel represented she would call Sullivan to testify and asked for a ruling on whether the prior incidents of domestic violence were admissible for impeachment (Evid. Code, § 1101, subd. (c)). The trial court excluded two instances—the March 2015 incident involving Susan Doe and the October 2014 incident involving C.J.—but ruled the three other incidents of domestic violence were admissible for impeachment. Defense counsel immediately requested an opportunity to discuss the court's ruling with Sullivan "before he takes the stand." When the People rested later that same day, defense counsel indicated, "Based on my discussions with [Sullivan], at this point he is not going to testify."
Defense counsel made the following record:
"[DEFENSE COUNSEL]: This morning we came into court and I informed the Court and counsel that [Sullivan] intended to testify . . . and asked for the Court's ruling on the issues of the 1101. I had filed a motion . . . in limine . . . on December 1st, asking for a ruling on that, the issue of the 1101, and at that time the Court did not rule and the Court only ruled this morning on the 1101 issue in this case. [¶] We took a break and I spoke to [Sullivan] for about 45 minutes with another attorney from my office also speaking to him and we were discussing how . . . his testimony would change with the Court's new ruling regarding what can come in for impeachment and what cannot. [¶] Over the lunch hour [the prosecutor] sent me additional information. She sent me what included a 28 page police report from an arrest of [Sullivan] that occurred in Marin County in 2011. I have not reviewed that police report with [Sullivan]. I have not reviewed that police report entirely on my own because it was just given to me after the noon hour today.
"[Sullivan] at this point has chosen not to testify. However, I would like more time to speak with him. His exposure on this case is life. I am asking the Court to give me the afternoon to further speak with him to decide if he is going to testify . . . , or if he is going to assert his right to remain silent. [¶] . . . So I am asking the Court to give me the afternoon and evening to consult further with [Sullivan] about his decision whether to testify or not so he can make a fully informed decision whether to testify or not. This is a discussion that we have been having since the beginning of this case, and I do believe the Court's ruling this morning changed how he would testify and changed what information he could be impeached on. [¶] So in light of the severity of this case, I am asking the Court that we have the evening for me . . . to speak to [Sullivan] so he can make a truly informed decision about whether he's going to choose to testify.
"THE COURT: Okay. Miss [prosecutor]?
"[THE PROSECUTOR]: . . . Just to clarify for the record, the Court did already make an 1101 ruling. I think [defense] counsel was . . . using interchangeably the language with regards to how the witnesses as they pertain to the 1101 motion could be used for impeachment purposes outside of the prosecution using those people who are witnesses in its case in chief. [¶] Our anticipated timeline for the jury was based off of a best case scenario with the People presenting all evidence that it wanted which would have included 1101 witnesses. The Court made its ruling earlier on in the trial, however, that the People would be precluded from introducing in its case in chief anyone outside of Susan Doe of whom defense counsel has been apprised of all the way along that the People have had a problem getting a hold of her. [¶] With regards to the report that was provided, it is a report of the defendant's own felony convictions. I find it hard pressed to believe that [Sullivan] would not know of the conduct of which he received three felony convictions within the last year. [¶] . . . [¶]
"THE COURT: For . . . the record, the 1101(b) motion was made a long time ago. I think what [defense counsel] was talking about was the impeachment evidence and that had to do with [C.J.], [Danielle R.], and [Y.W.]. [¶] I also should indicate that [defense counsel] and [Sullivan] must have talked about him testifying because she said he was going to in opening statement. So I think you've had plenty of time to consult with [Sullivan]. [¶] So we're going to go ahead as planned.
"[DEFENSE COUNSEL]: . . . I do not have the case off of [the] top of my head. I know there is case law . . . that the Court cannot force the defendant to testify before all the witnesses have been called. [¶]. . . [¶] . . . I would agree with the Court's assessment that I have spoken to [Sullivan] at length about testifying. However, we did not have the Court's decision until . . . this morning. So I am asking for more time so [Sullivan] can make an informed decision. And I think as his counsel I can only fully advise him after having reviewed all of the discovery in the matter." (Italics added.) Ultimately, the trial court allowed defense counsel an additional 45 minutes to confer with Sullivan.
Defense Case
Sullivan did not testify. The defense presented evidence from the Hayward police officer who responded to Depot Road. Jane originally told the officer she had been walking to a friend's home when she was kidnapped. Based on the late hour, the location she indicated, and her attire, the officer suspected Jane had been working as a prostitute, which Jane eventually conceded. Jane said she had approached the suspect and sat in his car, and was then punched repeatedly, driven elsewhere, and raped. She also said she was strangled until she "was starting to pass out," but did not mention a knife. An Oakland police officer also spoke with Jane at Highland Hospital later that day. As far as he could recall, Jane did not mention a knife or any other weapon.
A defense investigator inspected Sullivan's orange Lexus ES 350, and found the front driver's side door opened easily from the inside, whether manually locked or unlocked. The investigator was unable to test the front, passenger side door. However, when testing a similar car, the investigator was able to open the front passenger side door, despite it being manually locked, both when the car was parked and when it was moving at 25 miles per hour. The alarm did not sound.
Closing Arguments
In closing argument, the prosecutor emphasized the absence of evidence to support a consent defense. The prosecutor argued: "During opening arguments, the defense got before you and gave you a false story. She said that [Sullivan] was the victim in this matter; that he had had consensual sex with Jane Doe and that she robbed him. [¶] [Y]ou heard the testimony in this case. . . . And in fact, there's no shred of evidence to support any of that."
In Sullivan's closing argument, defense counsel primarily challenged Jane's credibility. Defense counsel also noted: "[Sullivan] did not tell you what . . . happen[ed] in that car. The prosecution focused in her closing arguments on what I said during my opening statement. Please do not hold what I said in my opening statements against [Sullivan]. You can hold it against me, but don't hold it against him. [Sullivan] has no obligation to prove what did or didn't happen in that car."
Jury Verdict and Sentence
The jury found Sullivan guilty of all three counts. The jury also found the One Strike kidnapping allegation true, but other enhancement allegations related to counts two and three—Sullivan used a deadly and dangerous weapon (§ 667.61, subd. (e)(3)) and inflicted great bodily injury (§§ 12022.7, subd. (a), 12022.8)—were found "not true."
Sullivan was sentenced to a determinate term of 18 years, plus an indeterminate term of 114 years to life in state prison. The sentence is comprised of a life (with possibility of parole) term on count one (Sullivan becoming parole eligible after 14 years), a consecutive 50 years to life term for each of the two sex crimes (§§ 667, subd. (e)(1) and 667.61), and 18 years for the prior serious felony conviction and prison terms (§§ 667, subds. (a), (c)(7), 667.5, subd. (b)). Sullivan filed a timely notice of appeal.
II. DISCUSSION
Sullivan contends (1) his trial counsel rendered ineffective assistance by promising, in opening statement, Sullivan would testify; and (2) the trial court erred by not staying execution of his sentence, pursuant to section 654, on count one. Sullivan's first argument is unpersuasive, but his section 654 argument has merit. A. Ineffective Assistance of Counsel
Sullivan maintains his trial counsel provided ineffective assistance by essentially promising, in opening statement, Sullivan would testify but breaking that promise and never calling him as a witness. Sullivan concedes his counsel did not explicitly state Sullivan would testify, but maintains defense counsel effectively made such a promise by "provid[ing] numerous details in opposition to what had been presented by the prosecutor . . . that could logically only come from [Sullivan] himself." He further contends this decision—"to give an opening statement promising to offer evidence which could only come from [Sullivan], and then [to] rest her case without offering any such evidence"—had no tactical or strategic basis and irreparably prejudiced his defense. Sullivan has failed to meet his burden to show inadequacy of counsel.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to effective assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684-686.) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ledesma, at p. 215.) To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms, and (2) the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland, at pp. 688, 692; Ledesma, at pp. 216-217.) To satisfy the prejudice requirement, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
"It is the defendant's burden to demonstrate the inadequacy of trial counsel. . . . Defendant's burden is difficult to carry on direct appeal." (People v. Anzalone (2006) 141 Cal.App.4th 380, 394.) In examining a claim of ineffective assistance of counsel, "[r]eviewing courts defer to counsel's reasonable tactical decisions . . . , and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " (People v. Lucas (1995) 12 Cal.4th 415, 436-437; accord, People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) "[C]ounsel's decisionmaking must be evaluated in the context of the available facts." (People v. Bolin (1998) 18 Cal.4th 297, 333.) " 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record 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" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (People v. Kelly (1992) 1 Cal.4th 495, 520.) If counsel's act or omission "resulted from an informed tactical choice within the range of reasonable competence," we must affirm. (People v. Pope (1979) 23 Cal.3d 412, 425, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) We may reverse on direct appeal only if " ' "the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Bradford (1997) 14 Cal.4th 1005, 1052, italics added.) When the record does not affirmatively disclose as much, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Preliminarily, we note that "[a]lthough tactical decisions at trial are generally counsel's responsibility, the decision whether to testify . . . is made by the defendant after consultation with counsel." (People v. Carter (2005) 36 Cal.4th 1114, 1198; accord, Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 28 ["a defendant's decision about whether to invoke the right to remain silent is a strategic choice, requiring a balancing of risks and benefits"].) The People insist the record shows it was Sullivan himself who decided not to testify. Of course, Sullivan cannot complain of ineffective assistance if he indicated to counsel, before opening statement, that he would testify (despite obvious risks) but then later simply changed his mind. Such circumstances would be beyond the control of Sullivan's trial counsel. However, the record in this case is at best ambiguous on this issue.
Failing to produce exculpatory evidence promised in opening statement may constitute ineffective assistance of counsel. (See People v. Frye (1998) 18 Cal.4th 894, 983-984, disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Such a failure may "open[] the gate to legitimate, devastating comments on the part of the prosecution . . . on the failure of the defense to provide the promised evidence and thereby deal[] a devastating blow to [a defendant's] cause." (People v. Corona (1978) 80 Cal.App.3d 684, 725-726 (Corona).) However, "[m]aking promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se." (People v. Burnett (2003) 110 Cal.App.4th 868, 885 (Burnett).) "Whether the failure to produce a promised witness amounts to ineffective assistance of counsel is a fact-based determination that must be assessed on a case-by-case basis. [Citation.] Foregoing the presentation of testimony or evidence promised in an opening statement can be a reasonable tactical decision, depending on the circumstances of the case." (People v. Stanley (2006) 39 Cal.4th 913, 955, italics added.)
For example, in People v. Frye, supra, 18 Cal.4th 894, defense counsel indicated in opening statement the defendant would testify. However, during trial defense counsel "perceived defendant was having difficulty remembering information" and advised the defendant not to testify. Because counsel's advice not to testify was a tactical decision based on observations of the defendant during trial, counsel was not constitutionally ineffective. (Id. at p. 983-984.)
Defendant cites a string of habeas cases in which similar broken promises to juries were found to constitute ineffective assistance of counsel. (See Corona, supra, 80 Cal.App.3d at pp. 725-726; U.S. ex rel. Hampton v. Leibach (7th Cir. 2003) 347 F.3d 219, 259 (Hampton); Ouber v. Guarino, supra, 293 F.3d at p. 29; Harris v. Reed (7th Cir. 1990) 894 F.2d 871, 879; Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 17; Williams v. Woodford (E.D.Cal. 2012) 859 F.Supp.2d 1154, 1171-1173; Madrigal v. Yates (C.D.Cal. 2009) 662 F.Supp.2d 1162, 1184.) Sullivan contends these cases should govern our analysis. However, the cited intermediate federal court of appeal opinions are only persuasive authority and have no precedential value in this court. (Burnett, supra, 110 Cal.App.4th at p. 882.) Furthermore, this line of authority is distinguishable.
Corona, supra, 80 Cal.App.3d 684, is distinguishable in several respects. Defense counsel, in a 25-count murder case, promised to introduce alibi testimony, psychiatric evidence, character evidence, and other rebuttal testimony. (Id. at pp. 693, 725-726.) Defense counsel subsequently "decided to forego all the defenses promised and submitted the matter upon the evidence introduced by the prosecution, [and, thereby] opened the gate to legitimate, devastating comments on the part of the prosecution." (Id. at p. 725.) Importantly, defense counsel had created an egregious conflict of interest with the defendant by entering into a fee agreement which granted defense counsel exclusive literary rights to the defendant's life story. (Id. at p. 703.) Thus, the reviewing court, in considering a direct appeal and consolidated petition for habeas corpus (id. at p. 706, fn. 10), concluded defense counsel's failure to fulfill the promises made in opening was one example of how the conflict between the defendant and his trial counsel "rendered the trial a farce and mockery." (Id. at p. 727.) Instead of investigating and pursuing obvious defenses, defense counsel made the trial "lengthy and sensational." (Id. at p. 704.)
Corona is an extreme case. In this case, the appellate record does not demonstrate a similar fee agreement, or other apparent conflict of interest, motivated the change in course. Nor did defense counsel fail to produce numerous categories of promised evidence. Sullivan only complains of a single broken promise by his trial counsel—that Sullivan himself would testify Jane was not raped. This case does not present a comparable "outrageous abrogation" of the obligation to defend. (Corona, supra, 80 Cal.App.3d at pp. 703, 727.)
Sullivan's reliance on Hampton, supra, 347 F.3d 219 is also misplaced. In Hampton, the defendant was convicted of sexual assault, attempted rape, robbery, and battery after the jury heard eyewitness testimony identifying him as one of a group of gang members who assaulted two women at a concert. (Id. at pp. 221-222, 228.) The defendant filed a habeas petition, arguing his trial counsel was constitutionally ineffective for failing to investigate and for promising, in his opening statement, the defendant would testify he was not involved and was not a gang member. (Id. at pp. 221, 226, 257.) Neither promise was kept. Defense counsel testified, at an evidentiary hearing on the habeas petition, that he ultimately decided not to call the defendant because he had attended and departed the concert with the other defendants and the jury might find him guilty by association. (Id. at pp. 226, 229, 258.)
The Seventh Circuit Court of Appeals determined trial counsel's failure to keep the promise "reinforced" the conclusion that trial counsel's representation of the defendant was prejudicially ineffective. (Hampton, supra, 347 F.3d at p. 238.) Because the potential disadvantages of the defendant's testimony (guilt by association) would have been apparent at the outset and nothing was to be gained by making such a promise only to renege later, defense counsel's actions were objectively unreasonable. (Id. at pp. 258-259.) "We may assume, without deciding, that it was reasonable for [defense counsel] to advise [the defendant] not to testify and not to present testimony from other witnesses about his lack of gang ties; such decisions are often motivated by strategic considerations that command deference from the judiciary. [Citations.] But [defense counsel] promised the jury that it would hear from [the defendant] and that it would also hear evidence that he had no gang involvement, and he reneged on his promises without explaining to the jury why he did so. Turnabouts of this sort may be justified when 'unexpected developments . . . warrant . . . changes in previously announced trial strategies.' [Citations.] However, when the failure to present the promised testimony cannot be chalked up to unforeseeable events, the attorney's broken promise may be unreasonable, for 'little is more damaging than to fail to produce important evidence that had been promised in an opening.' [Citations.] The damage can be particularly acute when it is the defendant himself whose testimony fails to materialize: When a jury is promised that it will hear the defendant's story from the defendant's own lips, and the defendant then reneges, common sense suggests that the course of trial may be profoundly altered. A broken promise of this magnitude taints both the lawyer who vouchsafed it and the client on whose behalf it was made." (Id. at p. 257, italics added.)
Here, Sullivan's appellate counsel insists it was objectively unreasonable for his trial counsel to "gamble[] on the expectation that the court was going to deny the [impeachment] motion" and asserts counsel should have asked for an earlier ruling or reserved her opening until the close of the prosecution case. Sullivan may be correct that the threat of impeachment should have been easily foreseeable to competent counsel at the time she made Sullivan's opening statement. (Hampton, supra, 347 F.3d at p. 259; Ouber v. Guarino, supra, 293 F.3d at p. 30.) Nonetheless, we disagree with Sullivan that, under the circumstances of this case, there could be no satisfactory explanation for counsel's changing trial strategy. (See People v. Stanley, supra, 39 Cal.4th at p. 955; Hampton, at p. 259 [abandoning such a promise "may be necessary when things do not pan out as the attorney reasonably expected or the detriments of the promised evidence become clear only later"].)
The record is silent on why the defense changed course. And Sullivan has not shown there could be no satisfactory explanation. We cannot eliminate the possibility that a reasonable decision was made at the end of the People's case that Sullivan would not testify because the additional challenges to Sullivan's credibility made the risk too great. At the outset of trial, the defense was facing an uphill battle. Over Sullivan's objection, the trial court had allowed evidence from Susan Doe, who was expected to testify Sullivan had kidnapped and raped her, in the backseat of the Lexus, while she was working as a prostitute in March 2015. However, the trial court had not yet ruled on whether the domestic violence incidents could come in for impeachment, under Evidence Code, sections 1101, subdivision (c) or 1103, subdivision (b), should Sullivan testify. At that time defense counsel gave her opening statement, she may have taken a calculated risk—reasonably believing the strength of the People's case made it worth risking Sullivan taking the stand despite the threat of impeachment. As the People put it, a consent defense was Sullivan's only real hope at that point. Thus, it appears defense counsel decided to directly confront both the Susan Doe evidence and Sullivan's felony record and present this evidence in the best possible light.
Circumstances changed by the time the prosecution rested its case in chief. The trial court ruled three of the prior domestic violence incidents would be admissible impeachment evidence against Sullivan. And, apparently unable to subpoena Susan Doe, the prosecution rested its case without introducing any evidence of uncharged sex offenses under Evidence Code section 1108. Absence of this evidence would necessarily change the tactical calculus—now, unless Sullivan took the stand, none of this extremely damaging evidence would be before the jury. Also, in the interim, defense counsel had cross-examined prosecution witnesses regarding Jane's inconsistent statements and introduced Jane's recorded statement that "[her] career should be an actress." Balancing these developments against the inherently self-serving nature of Sullivan's testimony, not to mention the risk involved in offering an account of events never previously proffered to police, defense counsel may have reasonably concluded it would be unnecessarily damaging to put Sullivan on the stand.
In Burnett, supra, 110 Cal.App.4th 868, the defendant was convicted of animal cruelty for throwing a dog into a busy street. (Id. at pp. 871, 873.) On appeal, the defendant argued the decision to not call him to testify, after promising to do so in an opening statement, constituted ineffective assistance of counsel. The reviewing court disagreed, observing the defendant, had he testified, would have been impeached with a prior dog killing and other crimes. (Id. at pp. 882-884.) The Burnett court also reasoned: "[The defendant] apparently led defense counsel to believe that [the dog] bit him and his tooth snagged on [the] defendant's finger. When all of the witnesses testified that this did not happen, including the only defense witness . . . whom defense counsel told the jury he expected to corroborate the testimony of defendant but who instead testified consistently with prosecution witnesses, defense counsel was compelled to change course. . . . It is not defense counsel's fault that defendant lied to him. Nor is it counsel's fault that he told the jury that he would present evidence which, apparently during the course of the trial, he discovered was a lie. Once the trial court ruled that defendant's credibility could be impeached with even more damaging evidence, there was little point in engaging in a credibility duel which could only disadvantage defendant with the trial court." (Id. at pp. 884-885.)
Like the Burnett court, we are powerless to second guess defense counsel's possible determination the wiser course of action in Sullivan's case was to argue the prosecution failed to meet its burden of proof. The record does not preclude a reasonable tactical explanation for counsel's actions and, thus, cannot demonstrate ineffective assistance on appeal. B. Section 654
Sullivan also argues, and the People concede, the trial court erred in imposing sentence on the kidnapping charge (count one) in violation of section 654, subdivision (a). We agree. " ' "Section 654 has been applied not only where there was but one 'act' in the ordinary sense . . . but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654." [Citation.] [¶] Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.)
When a kidnapping is carried out solely to further a defendant's intent and objective to commit a sex offense, section 654 prohibits separate punishment for the kidnapping if the defendant has been punished for the completed sex crime. (People v. Latimer (1993) 5 Cal.4th 1203, 1206-1207, 1215, 1216; People v. Jackson (1995) 32 Cal.App.4th 411, 417.) In such a situation, "the accepted 'procedure is to sentence the defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.' " (People v. Jones (2012) 54 Cal.4th 350, 353.) Here, the jury expressly found the kidnapping was for the purpose of committing the sexual offenses. No substantial evidence exists on which the trial court could have found Sullivan had a different purpose or intent when he committed the kidnapping. Thus, the People appropriately concede the trial court improperly applied section 654 when it imposed sentence, without a stay, on the kidnapping count.
III. DISPOSITION
The judgment is modified to stay the sentence for kidnapping to commit a sex offense (count one), pursuant to section 654. In all other respects, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.