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People v. Swank

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E049650 (Cal. Ct. App. Feb. 23, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FVI901170, Eric M. Nakata, Judge.

Amy L. Butters; Eric M. Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

MILLER, J.

A jury convicted defendant Richard Jay Swank of continuous sexual abuse of a child (count 1-Pen. Code § 288.5, subd. (a)), torture (count 2-§ 206), two counts of forcible sexual penetration by a foreign object (counts 3, 4-§ 289, subd. (a)(1)), four counts of forcible oral copulation (counts 5, 7, 9, 11-§ 288a, subd. (c)(2)) and four counts of sodomy by force (counts 6, 8, 10, 12-§ 286, subd. (c)(2)). The court sentenced defendant to state prison for life plus 96 years. On appeal defendant raises six contentions: (1) the trial court erred in permitting the testimony of expert witness Jody Ward despite the People’s statutorily untimely disclosure of the witness; (2) the court committed several acts of judicial misconduct during trial; (3) the People committed several acts of prosecutorial misconduct; (4) defense counsel below provided constitutionally ineffective assistance of counsel (IAC); (5) insufficient evidence supported the jury’s conviction for torture on count 2; and (6) the aforementioned alleged errors resulted in prejudicial cumulative error. We affirm the judgment.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

The victim was born ill, weighing only four pounds, the equivalent of an eight-week premature baby. He was hospitalized for eight weeks. The victim’s mother testified that due to this, defendant (the victim’s father), treated the victim as if he were not his child; defendant would say that the victim had been switched at birth and he treated the victim as if he were not a member of the family.

Defendant referred to the victim as an “abomination.” The victim was treated as if he “didn’t exist.” In a family with 16 children, none of the other children were allowed to play or interact with the victim upon pain of punishment. The victim’s mother testified that she did not interact with the victim unless defendant was not around. The victim was not permitted to watch television, go to the movies, or play outside. The victim was never permitted in family photographs; his image was removed in one picture in which he once appeared. The victim’s birthday was never celebrated. At Christmas, everyone except the victim received gifts. For a number of years, defendant forced the victim to put on a dress and made everyone call him “Michelle.” The victim was treated “[v]ery differently. Very poorly. Just differently from the others.”

Defendant once discovered a journal that one of the victim’s siblings had written, in which she wrote that no child deserved to be treated the way the victim was treated. The author was beaten with a belt and thrown into a shower stall, naked, with the victim. She was told that if she cared so much for him she should be his lover; defendant called her the victim’s “fuck buddy.” For a week, the two were forced to stand in a corner together and hold hands. She was also forced to eat scraps with the victim.

Defendant compelled the victim to stand in a corner all day, every day of his entire life while residing in the home. Defendant forbade the victim from eating with the rest of the family; the victim was only allowed to eat the remaining scraps, if any, from his siblings’ meals. He was only permitted to eat with his hands. The victim once went four days without eating. He would often resort to eating dog food, digging in the trash for food, and once drinking his own urine because he was so dehydrated.

The victim, along with the other children, was constantly threatened with placement in foster care, which defendant alleged would be worse than their current situation, if they revealed any of the family’s “secrets” to outsiders. Defendant coached and drilled the children on how to respond to inquiries from outsiders. The children complied with defendant’s orders because they feared him. The children were led to believe that every family was like theirs.

Child Protective Services was often called to the home. After one such visit, defendant held a knife to the victim’s throat and threatened to kill him if he ever informed. After another visit, defendant held a gun to the victim’s head and similarly threatened him.

Some of the children initially attended public school; however, they were removed when defendant became “embarrassed” that teachers and administrators conveyed concern when they noticed that the victim would frequently dig through the trash or beg to obtain food. The children were subsequently “homeschooled, ” which consisted of infrequent and inconsequential instruction by defendant. When the family had visitors, the victim was hidden in a back room to conceal his malnourishment and injuries.

Defendant forced the victim to sleep handcuffed in a bathtub or shower stall from when the victim was three or five years old. The victim later slept in a locked, enclosed storage area under the coffee table. At one point the victim was left in the coffee table for two or three days until an offensive smell emanated from therein; the victim had soiled himself. The other children were informed that the victim would rape and molest everyone at night unless he was locked up. Later the victim slept on the garage floor handcuffed to the frame of a bed.

The victim’s mother and father both beat him; however, defendant beat him “constantly, ” “mostly every day.” Defendant used his fists, belts, a souvenir baseball bat, a dowel, a Maglite flashlight, a rubber mallet, books, and handcuffs in administering the beatings. The victim was sometimes restrained with handcuffs during the beatings. Defendant principally beat the victim on the head so that any marks would not be visible through the victim’s hair. Nevertheless, the victim had visible injuries all of the time. Defendant beat the victim to unconsciousness on more than one occasion.

The other children were also beaten, but not to the degree and frequency with which the victim was beaten. Defendant often used his children as target practice with a BB gun as they ran around the backyard.

On one occasion, when the victim was four years old, defendant punched him for looking at one of his younger siblings. The punch rendered him limp and blood came out of his mouth. Defendant and the victim’s mother placed him in the bathtub for the next couple of days. They refused to obtain medical help for him because defendant believed the abuse would be obvious.

On another occasion, defendant engaged in a lengthy beating of the victim, during which he punched the victim until he fell to the ground, stepped on his crotch, continued beating him while he was down, picked him up by the throat and pinned him up against the wall. Defendant informed the victim that he was not worthy to bleed on defendant’s carpet. Defendant once tapped the victim’s testicles repeatedly with a heavy-duty screwdriver. The victim testified that the resulting “pain was so intense that I couldn’t walk for two days.”

On yet other occasions, defendant would attach vice grips to the victim’s penis, nipples, and testicles to coerce “confessions.” The victim’s older brother testified that after applying the vice grips to the victim’s penis on one occasion, the victim “fell to the ground in complete agony and was screaming.” The other children would hear the victim scream for long periods of time during these interrogations; they would sing songs in an effort to cover up the sound of the screams. The victim’s older sister still had nightmares about the screams; she once witnessed defendant apply the vice grips to the victim’s penis. She also witnessed defendant directing another sibling to retrieve the vice grips for him. That sibling testified that defendant had asked him to retrieve the vice grips. Defendant once told the victim’s older sister, “‘[t]hat boy will say anything with vice grips on his dick.’”

Defendant frequently compelled the victim to engage in boxing matches with him. During one of these matches, defendant broke the victim’s nose; from that time on, the victim was unable to breathe through his right nostril. The victim received no medical attention. A forensic pathologist testified that the injury was consistent with blunt force trauma such as being punched on the nose. The pathologist also noted eight healed skull injuries with scarring consistent with untreated intentional blunt force trauma to the back of the head.

On one occasion, defendant grabbed the victim by the scrotum, lifted him in the air, and moved him 10 feet to another location. Another occasion defendant clamped his hand around the victim’s throat until he passed out. Yet another time, defendant poked the victim’s foot with a knife.

At one point, defendant informed the victim’s older sister that the victim had molested their youngest sibling; defendant gave her a gun and told her to make sure it never happened again. Defendant then ensured that everyone except the victim and his older sister left the home. She testified that she believed defendant wanted her to kill the victim. With gun in hand, the older sister threatened the victim that if he ever touched the baby again she would kill him. The victim denied ever touching the baby; she believed him because he never had access to any of the other children. When defendant returned home, he appeared angry when he discovered that she had not killed the victim.

On or around the victim’s tenth birthday, defendant brought the victim into a bedroom, closed and locked the door, dropped his pants, and ordered the victim to orally copulate him. The victim did so. After about five minutes, defendant turned the victim around, restrained the victim’s arms above his head, and sodomized the victim for five to ten minutes. Defendant continued to sexually abuse the victim (forcing the victim to orally copulate him and then sodomizing him) approximately twice a week for the ensuing eight years, except an interim break at some point of about six months. If the victim did not comply with the molestation, he would be beaten.

Defendant would sometimes give the victim’s mother long lists of errands to run, which would involve visits to multiple stores so that she was never home when defendant molested the victim. Defendant would post the other children at the window to serve as lookouts to notify him when the victim’s mother returned. Defendant would then take the victim in his room and close the door. Defendant asked the victim’s older sister to obtain a plunger, zucchini, cucumber, or other random objects from the refrigerator on some of these occasions. Defendant inserted a zucchini into the victim’s anus on one occasion and a toilet plunger on another. On at least one occasion the victim exited the bedroom with his pants bloodied on his buttocks. Defendant once told him “If you’re still bleeding in 15 minutes, get over it.” The victim’s younger brother testified he helped staunch the bleeding using a sanitary napkin. The victim’s younger sister once witnessed the victim orally copulating defendant in the garage. The victim was rewarded with food after the sexual incidents. The victim’s mother testified that at one point defendant told her he had raped the victim, but indicated he was just joking after she became upset.

Defendant testified on his own behalf; he denied all the allegations made against him.

DISCUSSION

A. STATUTORY DISCOVERY

Defendant first contends that the court erred in allowing Dr. Jody Ward, a clinical and forensic psychologist, to testify as an expert witness regarding the symptoms and effects of someone suffering from Child Sexual Abuse Accommodation Syndrome (CSAAS), because the People failed to disclose her as a witness until after the expiration of the statutory discovery date, i.e., within 30 days of trial. We hold that the trial court acted within its discretion in proffering defendant a continuance as a remedy for the late disclosure. Moreover, we discern no prejudice in allowing the testimony after defendant’s disinclination to partake of the trial court’s proffered remedy.

On August 10, 2009, defendant filed a motion in limine seeking to exclude the People’s presentation of evidence on CSAAS. On the same date, defendant filed another motion specifically seeking to exclude the testimony of Dr. Ward. Defendant averred that the People had not disclosed that Dr. Ward would be called as a witness “until a week ago....” Defendant maintained he was prejudiced in that “[h]ad the notifications of Dr. Ward being a witness been timely disclosed, the defense would then have considered obtaining the assistance of an expert to counter the anticipated testimony by Dr. Ward.” At an Evidence Code section 402 hearing on the matter, defendant reiterated his request that Dr. Ward’s testimony be excluded. Defendant asserted he had not been notified of Dr. Ward’s testimony until August 4, 2009. At that time, the jury trial was scheduled to begin on August 10, 2009.

The court inquired of the People why disclosure of the witness had been so late. The prosecutor responded that the case was originally assigned to another deputy who had gone out on maternity leave. Upon reviewing the case, the current prosecutor determined that expert witness testimony regarding CSAAS was required. She then attempted to locate an appropriate witness. Upon finding Dr. Ward, she then sought permission from her office to retain Dr. Ward. The day she obtained that permission she immediately notified defendant. Dr. Ward had not prepared a report regarding the particular case; rather, she would only testify generally regarding CSAAS.

The court responded, “Look. Your client wants his trial within the statutory time. We are accommodating him, okay. You’re preaching to the choir, now, okay. If you need more time to talk to him about waiving time, we’ll give you more time. That is your remedy in this case, okay. I’m finding that the evidence that she wants is probative, at least from what I know. If you’re objecting to that and you need some more time, then your client will waive time. If he doesn’t want to deal with that, we’ll proceed.” On the next day, the People clarified that Dr. Ward would testify that child victims of sexual abuse frequently do not immediately disclose the abuse. The court informed defense counsel, “I am going to allow Dr. Ward to testify to this syndrome, CSAA syndrome. If you think that she’s going into an area while she’s testifying that is inappropriate, you make the proper objection.”

On August 19, 2009, Dr. Ward testified on behalf of the prosecution. She testified that most victims of child molestation do not report the abuse right away. In fact, two-thirds of victims of child molestation do not report the abuse until they reach adulthood. Many victims never report the abuse. It is similarly uncommon for a victim of child molestation to report the abuse immediately upon reaching adulthood; rather, some triggering event often compels the report. Victims of CSAAS often resist disclosing the abuse, and even accommodate the abuse, due to the circumstances of the abuse: the secrecy in which the abuse takes place, the helplessness the child feels, and the sense of being reliant upon the abuser. Finally, victims will not frequently report all the abuse they sustained at one time: “And when someone does report sexual abuse, they usually don’t report it all in one sitting. So maybe they will say, you know, I was sexually abused by so and so but not all the details will come out.” As subsequent events trigger memories, victims will report further details of the abuse. Victims of male-on-male child sexual abuse are even more unlikely to report their abuse. Likewise, victims who are exposed to daily exhibitions of weaponry, and are isolated in the home, are less likely to disclose the abuse than other victims.

“[T]he reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence ‘in the possession of the prosecuting attorney or [known by] the prosecuting attorney... to be in the possession of the investigating agencies.’ (§ 1054.1.)... Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)” (People v. Zambrano (2007) 41 Cal.4th 1082, 1133 (Zambrano), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Under federal constitutional due process provisions, the duty to disclose extends to evidence that is materially favorable to the accused regardless of whether the prosecutor acted in bad faith or whether the prosecutor’s office actually knew of or possessed the material so long as it was known to others acting on the government’s behalf. (Zambrano, at p. 1132.) Evidence subject to disclosure includes “the names and addresses of persons the prosecutor intends to call as witnesses at trial, ” (§ 1054.1, subd. (a)) and “any reports or statements of experts made in conjunction with the case, including the results of... examinations....” (§ 1054.1, subd. (f).)

“A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witness’s testimony or the presentation of real evidence. (§ 1054.5, subds. (b) & (c).) However, the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.) “The court may prohibit the testimony of a witness... only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c); see People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.) “The normal remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance [citations]....” (People v. Barnett (1998) 17 Cal.4th 1044, 1131.)

Appellate courts generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) Reversal is not warranted for any violation of California’s reciprocal discovery statute unless it is reasonably probable that the omission affected the result at trial. (Zambrano, supra, 41 Cal.4th at p. 1135.)

Here, the People disclosed the witness to the defense as soon as they had authority to retain her, a week prior to trial. The People only knew about the potentiality of the witness’s testimony about a week before she was reported to the defense. Thus, there is no indication that the People deliberately failed to disclose Dr. Ward to gain a tactical advantage. Dr. Ward did not testify until August 19, 2010; thus, the defense had at least two weeks to prepare for cross-examination of the witness. Likewise, defendant fails to aver that he was unable to obtain the testimony of a rebuttal witness in that interim.

Dr. Ward testified only generally about CSAAS; in fact, she specifically testified that she had not evaluated defendant or the victim, had no opinion whether the victim was suffering from CSAAS, and could not testify as to whether any child abuse had occurred in this case. Therefore, the court acted well within its discretion in proffering defendant the normal remedy of a continuance. That defendant refused this remedy, does not compel the determination that the court abused its discretion.

Defendant contends a primary line of his defense was in exposing the inconsistent revelations of the victim over the course of the investigation; a strategy which was rendered nugatory upon Dr. Ward’s testimony, particularly as the evidence was not disclosed until the “eve of trial.” Nevertheless, the defense still had ample opportunity to prepare for and actually did impeach the victim with his inconsistent statements. During closing argument, defense counsel argued that the inconsistencies in the victim’s revelations seriously impugned his credibility. The court instructed the jury with the standard instructions on determining the credibility of witnesses. (CALCRIM Nos. 105, 318.) We presume the jury followed those instructions and did not simply determine that Dr. Ward’s testimony would justify any inconsistency or falsehood the jury might find in the victim’s testimony. Obviously, the jury simply believed the victim’s testimony and his own explanations for any inconsistency in his revelations of the abuse.

Moreover, the evidence against defendant was overwhelming. The victim’s testimony regarding the abuse against him was corroborated by the testimony of three of his sisters, two of his brothers, his aunt, and his mother. The victim’s older sister testified she witnessed the vice grips attached to the victim’s penis. The victim’s older brother testified he actually witnessed defendant apply vice grips to the victim’s penis. Defendant essentially confessed to engaging in such behavior to the victim’s older sister. The victim’s brothers, sisters, and mother testified that defendant frequently beat him with a number of items. Their testimonies were consistent with the victim’s, and each others’, in both scope and detail. A search of defendant’s residence turned up a Maglite flashlight, a souvenir baseball bat, and handcuffs, later identified by the victim as items used against him in the physical abuse. The pathologist testified that the victim had incurred injuries consistent with intentional blunt force trauma.

The victim’s older sister, older brother, and another sister all testified that defendant would take the victim into his bedroom alone when mother left, and put the other children on lookout. The victim’s younger sister testified she witnessed one incident in which the victim orally copulated defendant. The victim’s mother testified defendant had admitted raping the victim. The victim’s older sister testified that defendant requested that she retrieve a zucchini and toilet plunger for him, the very items the victim testified defendant used to sodomize him. The victim’s older sister and younger brother both testified as to occasions when the victim was bleeding from his rectum. The jury took less than five hours in reaching a unanimous guilty verdict on all 12 charged felony counts. The exclusion of Dr. Ward’s testimony would have made no difference in the outcome of the trial.

B. JUDICIAL MISCONDUCT

Defendant contends the trial court committed prejudicial misconduct by prohibiting the defense from impeaching the victim’s older sister’s testimony with a recording of a conversation between her and the investigator, by refusing to allow the defense to pursue a line of questioning with the victim regarding his absence from the home after his brother’s death, by permitting the victim to explain an inconsistency between his trial testimony and a recorded interview with an investigator, and by permitting the prosecution to exceed the scope of the direct examination of defendant. We hold that defendant forfeited all of the alleged incidents of misconduct by failing to object below. Addressing the merits, we hold the court committed no misconduct.

“As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile. [Citations.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v. Boyette (2002) 29 Cal.4th 381, 458-459.)

“Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court ‘commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 78.) The reviewing court’s “‘role... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (Ibid.; see also People v. Gutierrez (2009) 45 Cal.4th 789, 823.)

Defendant’s first complaint stems from the defense’s attempt to impeach the victim’s older sister’s testimony that she actually witnessed defendant use the vice grips on the victim’s penis. Defense counsel asked if she had told the investigator that she actually witnessed such an incident. The witness replied that she told the investigator “that what I remembered most was the screams, the tortured screams.” Defense counsel then asked “So you didn’t tell [the investigator] that you saw the vice grips hanging?” The witness responded, “No. I believe that I did.” Defense counsel then sought to play a recording and provide a transcript of the interview with the investigator. At a bench conference outside the hearing of the jury, the trial court informed defense counsel that she should have sought permission at a pretrial Evidence Code section 402 hearing to play the tape and produce the transcript to impeach the witness. The court ruled that her failure to do so precluded the playing of the tape at that time.

First, defense counsel never objected to the court’s statements as judicial misconduct nor requested a curative instruction; thus, defendant has forfeited the issue on appeal. Second, as noted above, the entire contents of the discussion regarding the tapes occurred outside the presence of the jury; thus, it could not have infected the trial so as to render it unfair. Third, the court’s rebuke of defense counsel, if it could be called that, was relatively mild such that even if the jury was exposed to it, no prejudice would attach. Fourth, the court’s ruling was well within its power to control the presentation of evidence. (Penal Code, § 1054; Evid. Code, § 402, subd. (b).) Fifth, the court expressly ruled that defense counsel could later get the interview and transcript into evidence through her examination of the investigator. Defense counsel replied, “Okay. Then that’s good. I will do that.” Although defense counsel never did attempt to play the tape or provide the transcript during her subsequent examination of the investigator, the court’s explicit proviso that she could do so obviated any prejudice defendant would have suffered from a completely adverse ruling. Sixth, and finally, the victim’s sister subsequently admitted that she did not previously tell the investigator on the telephone that she witnessed defendant place the vice grips on the victim’s genitals. Thus, the need to play the recoding was rendered superfluous.

Defendant’s second complaint relates to defense counsel’s attempts to elicit from the victim, on cross-examination, when was the first time he returned to the family home after leaving at age 18 for the Army. Defense counsel asked if the victim was home when his older brother died. The victim replied that he was not. Defense counsel asked when the first time he returned home was; the victim replied July 2008. The court requested the counsel approach for a bench conference. The court then asked defense counsel what relevance the question had. Defense counsel replied that it was complex. The court then dismissed the jury for its lunch break and continued the discussion with counsel in open court. During that discussion defense counsel related her theory of the case: the victim concocted the allegations after feeling guilty for leaving his mother with a dead son and a husband, defendant, who ran off with another, much younger woman. The court ruled that that line of questioning would consume an undue amount of time for its nebulous probative value and ordered defense counsel to drop it.

First, again, counsel failed to object or request a curative instruction; thus, defendant forfeited the issue on appeal. Second, again, the discussion occurred outside the presence of the jury and was therefore, not prejudicial. Third, again, while stern, the court’s interaction with defense counsel was not disparaging or discourteous; thus, even if the comments had been made in the presence of the jury they would not amount to judicial misconduct. Fourth, the facts demonstrate that the court’s ruling was well within its discretion. The victim’s brother died in January 2005. Defendant did not move out of the home until March 2008. The victim’s parents’ divorce was not finalized until October 2008. Thus, the nexus between the victim’s brother’s death and his parents’ divorce was extremely attenuated because the incidents were separated by more than three years. Moreover, the victim testified that he had been deployed to Iraq; thus, his absence from the home was, to at least some extent, beyond his control. Furthermore, to the extent the jury believed the victim’s testimony, which it apparently did, it would be understandable for someone who had suffered such abuse not to wish to return to the site of the abuse and the presence of the abuser. Fifth, the defense succeeded in eliciting sufficient evidence to espouse its theory of the case. The victim’s brother died in January 2005; the victim testified he was not present when the death occurred. He testified that he first returned home in July 2008; his father was already living in an apartment with another woman. Thus, the trial court’s “interference” in the defense line of questioning caused no prejudice.

The third complained-of instance of alleged judicial misconduct consists of the court’s latitude in allowing the victim to explain an inconsistency regarding his revelations of the timing of the first incident of sexual abuse. On direct examination, the victim testified that the first incident of sexual abuse occurred on his tenth birthday. On cross-examination, the victim testified that during his first interview with the investigator, he indicated that the first incident of sexual abuse occurred about a week after his tenth birthday. Defense counsel then queried, “And then today you say it was on your birthday; is that correct?” The victim asked the court if he could explain. The court replied that he may. The victim then stated: “See, the first incident of sexual abuse happened so long ago, that actual date I can’t entirely recall, but I can and I do testify that it was somewhere near my birthday, within a week of my tenth birthday. Whether it was before or after....“

First, again, defense counsel failed to object or request a curative instruction; thus, defendant has forfeited the issue on appeal. Second, the court’s indulgence of the victim’s request did not disparage the defense or show a blatant bias in favor of the prosecution. Indeed, the matter was of such a trivial nature that it could hardly have rendered the trial unfair. Had the court not permitted the victim to explain it is simply unfathomable that the jury would have rendered different verdicts simply because the victim had given inconsistent dates, separated temporally by at most a week, of when the first sexual molestation had occurred, nearly 14 years earlier.

The final alleged act of judicial misconduct consists of the court’s purported allowance of the People to exceed the scope of defendant’s direct testimony and its refusal to allow the defense to rehabilitate that testimony on redirect. On direct, defendant testified that he had written three books. He subsequently self-produced a movie of one of those novels. On cross-examination the People elicited the titles of two of the three books defendant had written: Simon’s Shadows and Shadows of Paris. In defendant’s movie, one of his children, his 13-year-old son, played a part in which he appears dressed in female clothing while his hands are restrained above his head; defendant appeared in the scene wielding a “cat o’ nine tails, ” a “sort of like a whip that’s been taken apart at the ends.” On redirect, defendant testified that the inspiration for his book and film came from his “experience at Shepard Middle School” involving “[t]eachers’ actions towards students, ” in particular the acts of one “Janie Putnam who was prosecuted in this courtroom in 2004....” The People objected. The court noted that no Janie Putnam had been in his courtroom. Defense clarified that it had occurred in that courtroom, but not that particular trial judge’s courtroom. Defense counsel then asked defendant, “who were Simon Shadows?” Defendant responded that they “were a group of gang members from Adelanto.” The People objected on lack of foundation. The court had counsel approach for a bench conference.

The court told defense counsel not to go into “extraneous stuff.” “[W]e’re [not] going to start talking about things that have absolutely nothing to do with anything in this case.... I don’t care what movie it is. I don’t care what the script is, and I don’t really care to know what it is. We’re not going to see it so why are we dealing with this? Let’s get on with it.” Defense counsel then asked repeated questions of defendant regarding the movie and books to which the People objected; the court sustained the objections on the grounds of relevance. Defense counsel requested another bench conference. The court denied the request noting that they had already had one on the issue, and that he had already ruled. Defense counsel persisted. The court replied, “Do you choose to quarrel with me?” Nevertheless, defense counsel continued to ask defendant about the inspiration for his book. The court then asked counsel to approach for another bench conference.

Counsel and the court engaged in a lengthy discussion regarding the relevance of defense counsel’s proposed line of questioning. Defense counsel proposed that the People’s questioning raised the inference that defendant’s books and movie were inspired by his personal experience with his family. Defense counsel sought to counter that inference with testimony that they were actually inspired by an occurrence at a school in which defendant taught, and that were committed by other individuals. The court concluded that any more testimony on the issue was irrelevant. Nevertheless, defense counsel once again elicited that the inspiration for the movie “was individuals that [defendant] worked with at Shepard Middle School.”

First, again, defense counsel failed to object on the grounds of judicial misconduct or request a curative instruction; thus, defendant has forfeited the issue on appeal. Second, to the extent defendant complains about any “offensive” remarks made by the court to counsel, we note that while the trial court’s statements reflect frustration, none of those comments were degrading or disparaging. Third, most of the comments were made outside the presence of the jury. Thus, defendant’s trial was not rendered unfair. Fourth, to the extent any of the court’s comments demonstrated displeasure with defense counsel, she had only herself to blame for persistently pursuing the line of questioning that the trial judge had already forbade after a lengthy discourse. Fifth, defense counsel elicited sufficient testimony to support the contention that defendant’s books and movie were the product of his experiences at work, not home. To the extent the jury disbelieved that inference, the jury was well within its province to make its own determination regarding the credibility of witnesses.

Finally, we note that in the context of the record as a whole, the four complained-of incidents do not support a determination that the trial court was biased in favor of the prosecution. We note that the court made a number of curt remarks to the prosecution as well as ruling adversely to the People’s objections on a number of occasions.

C. PROSECUTORIAL MISCONDUCT

Defendant maintains the People committed prejudicial misconduct by prefacing its examination of a number of its witnesses with a remonstrance to testify honestly, by questioning defendant on cross-examination whether he would have testified truthfully about the allegations against him had he actually been guilty of them, by asserting that defendant’s testimony was not credible, and by vouching for the credibility of the victim. We hold that defendant forfeited the alleged incidents of prosecutorial misconduct by failing to object below. We further hold that no prosecutorial misconduct occurred. Finally, even assuming misconduct, we hold that defendant suffered no prejudice.

As both defendant and the People acknowledge, defendant did not object below to the alleged incidents of prosecutorial misconduct; thus, he has forfeited those claims. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Nonetheless, in the interest of judicial economy and to forestall defendant’s ineffective assistance of counsel claims, we will address the merits of his claim.

Misconduct by the prosecutor violates the federal Constitution when it “‘“‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’”’” (People v. Hill (1998) 17 Cal.4th 800, 819.) “‘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 court or the jury.”’” [Citation.]’ [Citation.]” (Ibid.)

Defendant’s first alleged instance of prosecutorial misconduct involves the prosecutor’s preface of his examination of the victim and the victim’s family members with, to paraphrase, a question asking what she had previously told the witnesses to say in court. All of the witnesses responded, in essence, that they were told “[t]o be completely honest.” We discern no misconduct. The prosecutor merely preemptively countered defendant’s theory of the case that all defendant’s family members had conspired to concoct the allegations against him. Nothing in such brief questions and responses amounts to egregious, deceptive or reprehensible methods, which rendered the trial unfair.

Defendant’s second alleged act of misconduct involved the prosecutor’s extensive questioning of defendant regarding whether he would have testified truthfully had he actually committed each of the acts he was alleged to have perpetrated. Defendant replied variously he would “[m]ost likely not” testify truthfully and that “human behavior would dictate” otherwise. Eventually, defendant responded, “If I did any of that, I would have taken a plea bargain and not been up here to testify on my own behalf.”

By testifying, defendant “put his own veracity in issue.” The prosecution’s question bore directly on defendant’s credibility, which was relevant to assist in the jury’s factual and credibility determinations. (See People v. Chatman (2006) 38 Cal.4th 344, 382-383.) Moreover, the prosecutor’s questions merely mirrored defense counsel’s itemized questioning of whether defendant had committed each and every individual act alleged. The prosecutor’s questions, therefore, properly responded to defendant’s blanket denial of the accusations against him.

During the People’s closing argument, the prosecutor argued that “[t]he defendant was not credible. You alone can decide whether or not he was credible.” Defendant failed to object. Nevertheless, defendant contends the statement amounted to prosecutorial misconduct. “A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record. [Citations.]” (People v. Martinez (2010) 47 Cal.4th 911, 958.) Although, the prosecutor’s first comment could be viewed as a personal assurance of the unreliability of defendant’s testimony, her second statement clarified that it was the jury’s responsibility to make that determination. To the extent the comment was error, we hold that its minimal nature, the prosecutor’s immediate correction, and the trial court’s instruction of the jury to determine the credibility of witnesses itself, based solely on facts presented at trial, rendered any error harmless. (CALCRIM Nos. 105, 200, 220, 222, 318)

Finally, defendant complains that the prosecutor vouched for the credibility of the victim. The prosecutor spoke at length during her closing argument about the victim’s accomplishments since leaving home, and the difficulty he must have had revealing in court to strangers the intimate and degrading nature of the acts rendered upon him. This is precisely the type of commentary on which credibility is explicitly permitted. (People v. Martinez, supra, 47 Cal.4th at p. 958.) The prosecutor did not personally vouch for the victim’s credibility, but argued that the facts adduced at trial supported the veracity of the victim’s testimony. Thus, the comments were not misconduct.

D. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends that defense counsel’s failure to object to the alleged incidents of judicial and prosecutorial misconduct, failure to cross-examine several prosecution witnesses, and failure to object to the admission of irrelevant and prejudicial evidence amounted to constitutionally ineffective assistance of counsel. We disagree.

In order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v. Boyette, supra, 29 Cal.4th at p. 430.) Hence, an IAC claim has two components: deficient performance and prejudice. (Strickland, at pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

Here, defendant’s IAC claims fail under both prongs. As discussed above, defense counsel’s failure to object to the alleged incidents of judicial and prosecutorial misconduct were not deficient because such objections would not have been well taken. Indeed, interposing numerous unmeritorious objections could very well have proved a tactical disadvantage to the defense. Moreover, even if well taken, as discussed above, any error did not result in any prejudice.

Although defense counsel elected not to cross-examine three of the prosecution’s 12 witnesses, nothing in the record demonstrates how that choice amounted to deficient performance. “The cross-examination of witnesses is a matter falling within the discretion of counsel, and rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. [Citation.] Because defendant fails to disclose what evidence, if any, counsel might have elicited had he subjected prosecution witnesses to more rigorous cross-examination, his claim of inadequate assistance does not succeed.” (People v. Frye (1998) 18 Cal.4th 894, 985, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Here, defendant fails to indicate what favorable results could have been achieved by cross-examination of these three witnesses. Indeed, defense counsel could very well have determined that vigorous cross-examination of the victim’s younger sisters and younger brother, who were also victims of abuse, could have proven counterproductive. Moreover, the record fails to indicate whether these witnesses made prior statements and, if so, whether any of those statements were inconsistent with their trial testimony. Thus, defendant’s assertion of IAC fails.

Finally, defendant’s contention that counsel below committed IAC by her failure to object to the admission of irrelevant and prejudicial evidence is not supported by factual or legal argument. In fact, defendant fails to identify the allegedly irrelevant and prejudicial evidence to which he is now objecting. Thus, defendant has forfeited the issue on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283 [contentions “bereft of factual underpinning, record references, argument, and/or authority” deemed forfeited].)

E. SUFFICIENCY OF THE EVIDENCE: TORTURE

Defendant contends substantial evidence does not support the requisite mens rea for his conviction on count 2 for torture. We disagree.

“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court 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. [Citations.]” (People v. Kraft, supra, 23 Cal.4th at p. 1053.) “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.” (§ 206.)

Here, the jury could reasonably have found that defendant derived a sadistic pleasure from beating the victim. The victim did nothing to provoke the persistent and extensive beatings. Thus, defendant’s motive in administering them could reasonably have been deemed to be the obtainment of perverse pleasure. (People v. Healy (1993) 14 Cal.App.4th 1137, 1142.) Furthermore, the jury could also have reasonably determined that defendant exacted the beatings for the purpose of exacting revenge because defendant believed the victim was not his child, but had been switched at birth with his real child, who would not have been so frail and ill. As discussed above, overwhelming evidence supported the convictions.

Defendant contends the cumulative effect of errors was prejudicial. The only potential error we have identified is that the prosecutor committed borderline misconduct when she stated that defendant was not credible. We have addressed that error in our discussion above. We therefore conclude defendant has failed to establish cumulative error. (See People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [minor errors, whether considered individually or cumulatively, would not alter the outcome of the trial].)

DISPOSITION

The judgment is affirmed.

We concur: RICHLI, Acting P.J., KING, J.


Summaries of

People v. Swank

California Court of Appeals, Fourth District, Second Division
Feb 23, 2011
No. E049650 (Cal. Ct. App. Feb. 23, 2011)
Case details for

People v. Swank

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD JAY SWANK, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 23, 2011

Citations

No. E049650 (Cal. Ct. App. Feb. 23, 2011)