Opinion
C075022
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. SHANE ADAIR VICARS, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed November 28, 2017, in the above cause be modified in the following respects:
Add the following to the end of the last full paragraph of part I D. of the discussion:
Because we conclude Chastaine made a reasonable tactical decision to avoid the risk of the jury finding that the uncharged victims indicated defendant's molestations were frequent and with numerous victims, we further conclude Chastaine was not ineffective for not reading the transcripts of these uncharged victims' testimony during the prior trial in order to formulate a peer contamination defense for the second trial. Chastaine was not required to prepare a defense he reasonably decided against.
This modification does not change the judgment.
Appellant's petition for rehearing is denied. /s/_________
HULL, Acting P. J. /s/_________
MURRAY, J. /s/_________
HOCH, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F00210)
After a jury was unable to reach a verdict on any of the charges of child molestation of five victims, the People filed a second amended complaint against defendant Shane Adair Vicars. The second amended complaint charged defendant with committing 13 counts of lewd and lascivious acts on a child under the age of 14 against two victims, D. and J. (Pen. Code, § 288, subd. (a).) The second trial culminated with defendant's conviction on all 13 counts. The trial court sentenced defendant to serve 26 years in state prison and imposed various fines and fees.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) he received constitutionally deficient legal representation because his trial attorney, Michael Chastaine, did not properly investigate or introduce evidence that the two victims were exposed to rumors about defendant engaging in inappropriate conduct with other children, (2) Chastaine was ineffective for failure to introduce evidence that the two victims were friends and could have colluded on their accusations, (3) Chastaine was ineffective for failure to interview two staff members at the school where the molestations took place, (4) he was prejudiced by Chastaine's failure to introduce evidence suggesting J.'s mother questioned victim J. in a manner that planted the idea of the molestation, (5) Chastaine was ineffective for failure to object to the prosecution's cross-examination of the defense expert witness on false memories in young children, (6) Chastaine should have objected to multiple instances of prosecutorial misconduct committed during opening and closing arguments, (7) the trial court erroneously excluded evidence defendant had twice admonished D. that "private parts are to remain private," (8) the unanimity instruction given allowed the jury to convict on all 13 charges if they unanimously agreed he committed only one act, (9) the California Supreme Court erred in deciding People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), and (10) insufficient evidence supported separate convictions for defendant's causing D. to touch defendant's penis on top of and inside defendant's pant leg.
We conclude defendant did not receive ineffective assistance of counsel from Chastaine. Chastaine prepared extensively before making the reasonable tactical choice to present a defense that avoided calling victims of uncharged offenses as witnesses. We also reject the contention Chastaine was ineffective for deciding against launching a fishing expedition by questioning the victims of charged offenses (charged victims) about whether they had previously discussed the molestations. Chastaine was also not ineffective for his decision to forego the testimony of some of defendant's colleagues. Even if defendant's colleagues might have lent some support to a defense based on lack of opportunity, Chastaine reasonably decided against this defense in light of other testimony introduced by the prosecution. Chastaine also reasonably decided that calling one of the victims' mothers as a witness would have risked the introduction of highly emotional testimony that could have swayed the jury against defendant. Chastaine had reasonable tactical grounds for not objecting to cross-examination of the defense witnesses regarding compensation when compensation is a generally permissible ground for cross-examination.
Although the prosecutor made several improper remarks during closing arguments, we conclude the remarks were isolated and harmless. Thus, we reject the contention defendant received ineffective assistance of counsel for lack of objection to the prosecutor's closing arguments. We also reject defendant's contention the trial court erred under Evidence Code section 782 in excluding defendant's evidence of D. being admonished twice to "keep [his] private parts, private." Evidence Code section 782 applies only to evidence of sexual activity, and here defendant concedes the evidence did not relate to sexual activity. We are not persuaded by defendant's cumulative prejudice argument regarding ineffective assistance of counsel.
We are also not persuaded by defendant's challenge to the unanimity jury instruction, as given in this case. Neither the challenged instruction individually nor the jury instructions as a whole supports defendant's argument that the jury was allowed to base all of its convictions upon a finding defendant committed only one instance of child molestation. We also reject defendant's challenge to CALCRIM No. 1191 - the same challenge that has already been rejected by the California Supreme Court. Finally, we reject defendant's argument he cannot be separately convicted of causing D. to touch defendant's penis over his pants and then again inside his pant leg.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence Introduced During the Second Trial
At the time of the second trial, D. was 11 years old. D. testified he had attended kindergarten at an elementary school where he received before and after school care at a club. Unless D.'s family traveled for vacation, D. attended the club. Defendant was D.'s teacher at the club. Defendant was assisted by two other teachers: S. and R. Defendant played with students during recess and during club time before and after school. D. liked the club - especially after school when they played games and had free time. Defendant also attended one of D.'s birthday parties and some of his sports events. Defendant was the only adult who attended D.'s seventh birthday party. D. and the other students at the club thought defendant was fun and liked to be around him.
1. The first time defendant rubbed his hand on victim D.'s stomach while in the office.
Starting when D. was in kindergarten, defendant would announce several times each week that it was time for the students to go outside and play. Then defendant would walk up to D. and tell D. to "stay in with him to help get [defendant's] wallet out." As the students went outside with S. and R. to play, defendant and D. would go into the club office together. Defendant would close the door that had its window covered by newspaper. Defendant would sit down on a chair and would have D. stand in front of him. Defendant would put his hand underneath D.'s shirt and rub D.'s stomach. The first time this occurred, D. asked why defendant was doing so and defendant responded "that he needed to get his hands warm." D. remembered defendant's hands being wet and cold.
2. The first time D. put his hand on defendant's penis on top of defendant's clothing while in the office.
After defendant rubbed D.'s stomach, defendant announced "that now it's time for my wallet." Defendant "said that he needed help. He needed [D.] to help him get his wallet out of his pocket." D. tried to get defendant's wallet from his pants pocket by shaking the pants. D. shook the pants for a minute or two.
3. The first time D. put his hand on defendant's penis underneath defendant's clothing while in the office.
After the wallet did not fall out, defendant pulled up his pants up to his knees and told D. "to shake it from the inside." Defendant "pulled his pants up and [D.] would stick [his] arm in and shake from the inside." Defendant would "kind of like shake [D.'s] hand" while D. was shaking the wallet inside defendant's pants. This occurred while defendant was sitting and D. was kneeling in front of him. D.'s hand "was very close to [defendant's] privates." D. held on to something that "felt like a leather wallet, but it was kind of sticky." D. testified, "[W]hat I remember is . . . once in a while, I would take my hand out of his pant leg and like have to dry off a little from the stickiness, and then I would put it back in."
D. knew he could stop shaking when the wallet would fall out and to the ground. Defendant would then ask D., "what do you want?" D. would then have a choice between a piece of candy, a toy soldier, or "some money in the game" the students would play and that would help D.'s team win.
4. A subsequent time when defendant rubbed his hand on D.'s stomach while in the office.
D. testified this sequence of events involving "shake the wallet" occurred 20 to 30 times. Defendant would always rub D.'s stomach - usually before the shaking, but a few times after the shaking. D. recalled another occasion that occurred inside the club office after D. had asked to get a game out of the office. Defendant put his hand underneath D.'s shirt and rubbed his stomach.
5. A subsequent time when D. put his hand on defendant's penis on top of his clothing while in the office.
On the occasion when D. had asked for the game from the office, defendant stopped rubbing D.'s stomach and told D. to "get his wallet out." D. testified that "every single time I'd first rub it from the outside, every time. I would never start rubbing it from the inside."
6. A subsequent time when D. put his hand on defendant's penis underneath defendant's clothing while in the office.
As always, after a minute or two of D's shaking the wallet from the outside of defendant's pants, defendant instructed D. to shake by reaching into defendant's pants. And, as always, the wallet would fall out at the end. D. would then need to dry off his hands.
7. The first time D. put his hand on defendant's penis on top of defendant's clothing while outside the building.
Defendant also initiated the shaking sequence with D. on six or seven occasions while outside the club building. Count 7 pertained to the first time D. put his hand on defendant's penis on top of defendant's clothing while they were outside the club building. Defendant rubbed D.'s stomach. Then D. rubbed defendant's wallet on the outside of defendant's pants.
8. The first time D. put his hand on defendant's penis underneath defendant's clothing while outside the building.
On the occasion of the first molestation to occur outside the club building, defendant also had D. put his hand inside defendant's pants to look for the wallet.
9. The last time D. put his hand on defendant's penis on top of defendant's clothing while outside the building.
On the last occasion when the molestation occurred outside the club building, D. was in second grade. Defendant and D. were outside the building while the other children were all inside. Defendant recruited D. to look for stray playground balls. Defendant was wearing jeans. Defendant said he got his wallet stuck and D. helped him shake his wallet in the same way as on all the previous occasions. D. shook the wallet from outside defendant's clothing.
10. The last time D. put his hand on defendant's penis underneath defendant's clothing while outside the building.
On that last occasion, D. also shook the wallet from inside defendant's pants for about a minute. Defendant's wallet felt slimy. The wallet fell out and D. was rewarded with "the gold or soldier." After they went inside, defendant told D. not to tell any of the other children " 'cause it wouldn't be fair.' " Defendant stopped asking D. to help find his wallet when D. was in second grade.
Additional Evidence of Defendant's Molestations of D.
Sacramento County Sheriff's Department Detective John Linke investigated the child molestation allegations against defendant. As part of Detective Linke's investigation, he interviewed R. and S. about what they observed in connection with defendant. R. told the detective she was concerned because "on many occasions [defendant] was not on the playground . . . ." She observed that defendant "left the playground unannounced approximately three to four times a week." R. confronted defendant on one occasion. Although defendant apologized, his practice continued. R. told Detective Linke "that one of the boys in particular that she had seen [defendant] leave with or come back with was D[.]"
Defendant's other teaching assistant, S., indicated to Detective Linke that defendant was "particularly close" to D. S. further indicated that "it was not at all uncommon for [defendant] to leave the playground and take a kid back to the club alone." S. observed this to occur "several times a week." Ordinarily, this did not cause concern for S. However, one occasion did "raise a red flag" for her when "she walked in and saw [defendant] alone in [the club] with D." This observation gave S. a weird or strange feeling.
1. The first time victim J. put his hand on defendant's groin area.
At the time of the second trial, J. was 10 years old. J. testified he had attended an elementary school from kindergarten through third grade. During that time, J. participated in the club programs several days a week after school. When school was not in session, J. would sometimes spend the entire day at the club. J. remembered defendant being his teacher at the club. J. liked defendant, thinking he was "[p]retty cool and fun."
J. testified he had been trying to forget incidents with defendant and his recollection was better during an earlier Sexual Assault Forensic Evaluation (SAFE) interview.
During J.'s SAFE interview, he stated there were six occasions when defendant had J. get defendant's wallet out. Defendant would have J. wiggle defendant's wallet until it fell out. J. believed the process involved touching defendant's penis because the wallet and defendant's penis were next to each other.
Count 11 related to the first time defendant had J. touch defendant's groin area. During his SAFE interview, J. explained he was in kindergarten the first time defendant had him put his hand into his pants pocket to get out defendant's wallet.
On that first occasion, J. had to use the bathroom and defendant allowed him to use the bathroom that required going through the teacher's lounge. When J. finished with the bathroom, defendant was waiting for him in the teacher's lounge. Defendant rubbed J.'s stomach. Defendant made J. get the wallet out of defendant's pants pocket.
2. The second time J. put his hand on defendant's groin area.
During the SAFE interview, J. explained defendant made him shake the wallet three times - twice in kindergarten and once in first grade. Count 12 related to the second time when J. was in kindergarten that defendant had J. put his hand on defendant's groin area. As on the other occasions, J. would go to the bathroom and defendant would allow J. to use the bathroom adjacent to the teacher's lounge. When J. returned, defendant had J. retrieve defendant's wallet from his pants pocket while defendant was sitting in a chair in the teachers' lounge. Defendant then had J. shake the wallet from outside defendant's pants. To J., it felt both "kind of hard and kind of squishy."
3. The third time J. put his hand on defendant's groin area.
Count 13 charged the third time J. put his hand on defendant's groin area. J. was in first grade for this count. As usual, defendant was sitting in a chair in the teacher's lounge. Defendant made J. shake the wallet out of his pants pocket. To J., defendant's wallet felt like defendant's penis. At the end, the wallet would usually fall out and defendant would tell him, "Thanks, J."
Testimony Regarding Child Sexual Abuse Accommodation Syndrome
The prosecution called Anthony Urquiza, Ph.D., a licensed psychologist to testify as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Urquiza explained CSAAS was first described in a scholarly article written in 1983 to dispel misperceptions about childhood sexual abuse. Dr. Urquiza noted he was not rendering an opinion about whether a particular child was molested or whether a particular individual perpetrated an act of child molestation.
Dr. Urquiza stated CSAAS describes five categories of behaviors commonly engaged in by victims of child sexual abuse: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction. As to CSAAS, Dr. Urquiza asserted generally there is some type of misperception or myth that accompanies behaviors described by the accommodation syndrome. Dr. Urquiza also noted sometimes victims of child sexual molestation describe the abuse in a manner that appears detached or unemotional.
Defense Evidence
The defense called William O'Donohue, a clinical psychologist, as an expert witness on interview techniques for child victims of sexual abuse and the effect of interview techniques on suggestibility and false memory. Dr. O'Donohue has published approximately 65 books, 150 journal articles, and 100 book chapters. He has conducted research into the suggestibility and false memories of child sexual abuse victims. Dr. O'Donohue also engaged in research critiquing CSAAS.
Dr. O'Donohue testified that working memory is filtered through preexisting concepts and memory fades over time. Suggestibility refers to the ability of someone making an assertion to influence what another person believes to be an accurate memory of an event that did not occur. For example, 25 percent of adults who were never lost inside a shopping mall will believe they were lost if their parents assert they were once lost. Young children have been found to be more suggestible with some studies finding 80 to 90 percent of young children forming a false memory in response to an assertion. According to Dr. O'Donohue, "false memory . . . can be a very easy process to install in a child . . . ." Thus, interviewers who wish to avoid false memories should avoid posing leading questions to young children.
DISCUSSION
I
Claimed Ineffective Assistance of Counsel for Failure to Introduce Evidence the
Charged Victims Were Exposed to Rumors Defendant Was Being Fired for
Inappropriate Conduct
Defendant contends he received ineffective assistance of counsel because his trial attorney "failed to investigate and present available evidence of J[.] and D[.]'s exposure to rumors that [defendant] was getting fired for rubbing kids tummies and having kids find his wallet." We are not persuaded.
A.
Forfeiture
At the outset, we note the Attorney General contends defendant has forfeited the contention regarding inadequate preparation. Specifically, the Attorney General argues defendant does not develop his argument in his opening brief. We disagree.
This court has previously held that "[t]o demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' (Atchley v. City of Fresno [(1984)] 151 Cal.App.3d [635,] 647; accord, Berger v. Godden [(1985)] 163 Cal.App.3d [1113,] 1117 ['failure of appellant to advance any pertinent or intelligible legal argument . . . constitute[s] an abandonment of the [claim of error'].)" (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Here, however, defendant's opening brief properly sets forth the standard of review and legal standards governing claims of constitutionally deficient representation. And defendant advances his argument under the heading, "Counsel failed to adequately investigate the peer contamination defense." Defendant's legal assertions are supported with case authority and his factual contentions are substantiated by record citations. Consequently, the argument is properly presented and we proceed to consider it on the merits.
B.
Ineffective Assistance of Counsel
As the California Supreme Court has explained, "A criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
C.
The Charged Victims' Exposure to Rumors about Defendant
During the first trial, defendant's trial attorney cross-examined J. about rumors that were spreading among the club's students. J. testified that "the kids" were saying defendant "was getting fired" because "what he would do to kids, like rubbing their tummy and trying to find . . . his wallet." According to J. the source of these rumors might have been M., one of the victims of offenses charged only in the first trial (uncharged victims). J. also thought the source might have been L., another uncharged victim.
During the second trial, the prosecutor did not charge any crimes involving M. or L. Neither did the prosecutor call M. or L. as witnesses during the second trial. Likewise, the defense also elected not to call M. or L. as witnesses or to present a "peer contamination" defense.
After the jury convicted defendant on all charged counts against D. and J., defendant fired Chastaine. Defendant retained his attorney from the first trial, Shannon V. Baker. Baker filed a motion for new trial on grounds Chastaine had provided ineffective assistance of counsel. The prosecution opposed the motion.
During a hearing on the motion for new trial, the prosecutor called Chastaine as a witness and elicited the following testimony: For the 28 years prior to trial in this case, Chastaine practiced criminal law. Chastaine and Baker had previously worked together at the same law firm for approximately four years. After the first trial ended in a mistrial, Baker referred the case to Chastaine.
Chastaine testified he has provided legal representation in "a lot of sexual misconduct cases." In preparing for trial in this case, Chastaine spoke with approximately six attorneys including: Jake Stebner; civil attorneys Mark Gallagher and Keith Gable, and several attorneys specializing in federal law charges including Mark Manning and probably Kelly Babineau. Chastaine sought "ideas about the kinds of jury [he] would look for, how people might react to certain information." Chastaine also spoke with Baker "at some length" and during "a number of times." They discussed various witnesses who testified during the first trial. Baker was "active in getting [Chastaine] as much information as she could about this case." Even after the first trial, Baker continued to visit defendant in jail.
Chastaine and Baker discussed strategy for the second trial. For Chastaine, the issue of whether to introduce the testimony of the now victims of uncharged offenses was a difficult decision he viewed "as the key decision. Everything else - every other decision depended on that one." Chastaine spent "a lot" of time making the decision about trial strategy. This was one of the issues Chastaine discussed with the other attorneys.
Ultimately, Chastaine reasoned: "[T]he pros to not calling the other kids and just staying with J[.] and D[.] was I felt that their testimony was sufficiently different than their - the videos that we had, that they could be pretty strongly impeached. And so you just have the two kids and that would be it. To put on the other children would be to basically go through the entire history of [victim L.'s uncharged offense] situation, the rumors, the discussion between all the other kids. Both of those scenarios could be supported favorably potentially by our expert who could talk about both scenarios. But ultimately, obviously I decided to go with what I always call the more streamlined version, just the two kids."
The fact the first jury was hung played a substantial role in Chastaine's decision because he knew the division of jurors was different for the victims charged in the first trial.
The trial court denied the motion for new trial. In pertinent part, the trial court explained that "the defendant asserts that [Chastaine] failed to present evidence of rumors circulating at the school. Although defendant states that there could not have been a tactical reason for trial counsel not to present this evidence, [Chastaine] testified that the tactical reason was that more evidence of rumors . . . would have been prejudicial to defendant's case because it would have necessitated presenting the testimony of other students, including possibly the [victims of uncharged offenses]." The trial court further explained, "according to the defendant's motion for new trial, the rumors being spread were that the defendant had rubbed children's stomachs and asked them to find his wallet. Even if that evidence had been introduced, it would still not explain the testimony provided by D[.] and J[.], their descriptions of the act of molestation which entailed shaking of the wallet and the defendant sitting on the chair. [¶] Finally, there was also evidence that defendant had once openly asked students whether they could find his lost wallet which, [Chastaine] did argue was one of the sources of the alleged fabrication. He argued this in his closing argument. He specifically said, 'and that has morphed itself into the nightmare that he finds himself [in] today.'"
D.
Chastaine's Strategic Decision to Present a Streamlined Defense
We reject defendant's argument he received ineffective assistance of counsel on grounds Chastaine did not properly investigate and present a peer contamination defense. Chastaine's testimony established he prepared extensively to represent defendant during the second trial. Chastaine planned the strategy by talking with a half-dozen attorneys, including Baker. Chastaine and Baker discussed strategy for the second trial. Chastaine also reviewed several boxes of documents, read all of the police reports, and watched the SAFE interviews of the victims charged in the second case. And the record clearly demonstrates Chastaine wrestled at length with the decision as to whether to call the uncharged victims as witnesses during the second trial.
Chastaine ultimately made the decision to present a "streamlined" defense that avoided the uncharged victims from being introduced to the jury. This decision was reasonable and resulted from extensive research, consultation, and rumination. As Chastaine noted, introduction of the uncharged victims as witnesses would have required substantial time as to each of their histories with defendant. This strategy risked alienating the jury by consuming large amounts of trial time, introducing potentially sympathetic child victims, and portraying the defendant's misconduct as frequent. The streamlined defense offered the potential of a shorter, more focused defense that clearly targeted the suggestibility of the charged victims. Under the circumstances, Chastaine's decision was reasonable.
Courts have considered claims relating to defense counsel's failure to present specific evidence or witnesses, ask certain questions in direct or cross-examination, and make certain objections to evidence as falling within the realm of trial strategy that should not be second-guessed as a matter of "judicial hindsight." (People v. Beagle (1972) 6 Cal.3d 441, 458, superseded by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209.) Given Chastaine's extensive preparation for trial and consideration given to trial strategy, we will not second guess his decision to forego testimony from the uncharged victims.
As Chastaine noted, the decision to engage in a streamlined defense was the lynchpin to the entire defense. Chastaine's trial strategy had the consequence that it did not make sense to introduce a peer contamination defense. As J.'s testimony from the first trial made clear, the only source of the rumors was either L. or M. - both of whom were charged victims only for the first trial. Thus, the peer contamination defense would have incurred the very risks Chastaine reasonably decided to avoid by preventing the jury from seeing other child victims who accused defendant of the same pattern of molestations at the same school, at the same time, as the offenses charged in connection with D. and J. Because Chastaine's trial strategy was reasonable, we reject the contention he was ineffective for failure to prepare for or prepare a peer contamination defense.
We also reject defendant's suggestion Chastaine could have introduced a peer contamination defense without calling any of the uncharged victims as witnesses during the second trial. On appeal, defendant's theory appears to be that a proper defense would have entailed asking J. only about the rumors - not for the hearsay purpose of proving the truth of the rumors about defendant's molestations - but only for the effect they might have had on J. Defendant thus speculates that "a common source for J[.] and D[.]'s 'false memory' " could have been established. In so arguing, defendant does not acknowledge the testimony at the first trial established the common source to be one of the uncharged victims.
Had the defense during the second trial asked about the rumors heard by J. and D. and tried to prove a common source, this would have opened door to the admission of evidence regarding the uncharged victims. The prosecution would have had the opportunity to elicit testimony and argue the common source showed the testimony of charged victims was actually bolstered by the same types of crimes against other children at the club. (People v. Robinson (1997) 53 Cal.App.4th 270, 282-283; People v. Shea (1995) 39 Cal.App.4th 1257, 1267.) Chastaine was not ineffective for making the reasoned decision not to pursue a defense that threatened to portray defendant in an even worse light based on his molestation of multiple children under his care.
II
Ineffective Assistance of Counsel Based on Failure to Show the Victims Were Friends
Defendant argues Chastaine provided ineffective assistance of counsel because he did not introduce evidence "to establish that D[.] and J[.] were friends and had contact with each other." Defendant further argues this allowed "the prosecutor to argue the children told the truth because they independently reported the same unusual conduct." We are not persuaded.
A.
Whether D. and J. Knew Each Other
During the first trial, J. testified that D. was two years older. J. stated, "I knew his name, but I didn't really know anything about him. He was never my friend. We never really talked." By contrast, D.'s testimony during the first trial was that they were friends and played together "a lot" while they were at the club. Neither D. nor J. testified regarding the substance of their conversations.
At the motion for new trial after defendant's conviction, Chastaine testified that during the second trial he was aware D. and J. knew each other and had interactions with each other. Chastaine explained:
Q [by the prosecution] Assuming D[.] testified that he had never spoken with J[.] about the allegations involving [defendant], did you have anything specifically to impeach that?
A [by Chastaine] Not that I recall.
Q Same question, if J[.] was asked, you know, did you ever speak with D[.] about the allegations
A I don't believe I had any direct evidence that those two boys had specifically spoken about this issue."
In denying the motion for new trial, the trial court rejected the argument Chastaine had been ineffective for failure to introduce evidence to establish D. and J. knew and interacted with each other. The trial court explained:
"First, impeaching J[.] could have been risky and seen as attacking a small child victim. Second, there is little evidence that they knew each other before they made their allegations. In other words, whether they had an opportunity to jointly discuss their accusations. The questions about D[.]'s interactions with J[.] were not given a time frame. So it is entirely possible that those interactions occurred after the molestations. In other words, in the intervening years between the conduct and the trial. While it appears they went to preschool together, they were in different grades.
"Finally, whether they were friends or played together is somewhat subjective. J[.] could reasonably believe and testify that he was not friends with D[.] or played together, and at the same time D[.] could reasonably believe and testify that they did so because they both attended [the club] at the same time.
"[Chastaine] testified last week that he did not have any direct evidence that these two boys had specifically spoken about the issue in this case to each other. In his closing argument he did argue to the jurors that they both were at [the club] at the same time, even though they were two grades apart.
"[Chastaine] also testified that he had reviewed the SAFE interviews and that the SAFE interviews impeached the trial testimony of J[.] and D[.] and indeed he argued this in his closing argument, and the SAFE interviews were admitted into evidence in the trial that was before me."
B.
Chastaine's Failure to Impeach D. and J. Based on Discussions They Might Have Had
Defendant claims evidence showing the victims "were friends and played together at the [club] would be very helpful to the defense, because it could be used to argue the two children had an opportunity to talk about [defendant] and the wallet ruse." We reject the claim.
The evidence supporting a claim of friendship was weak. J. flatly stated he had never been friends with D. and they "never really talked." Thus, the introduction of J.'s unequivocal denials of friendship and even talking much with D. would have undermined the evidentiary value of a defense premised on the victims' exchange of information. And, even though D. might have repeated his claim to have been friends with J., there was no hint in D.'s testimony that the boys ever talked about defendant's wallet ruse. As Chastaine noted in his own testimony, he could not recall any direct evidence the boys had ever discussed defendant's molestations.
For lack of evidence the boys had talked about defendant or his molestations, Chastaine reasonably decided not to launch into a fishing expedition with D. or J. in hopes some discussion about the molestations had occurred. "The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel's part and seldom establish a counsel's incompetence. . . . 'Matters involving trial tactics are matters "as to which we will not ordinarily exercise judicial hindsight. . . ." [Citation.] ' " (People v. Frierson (1979) 25 Cal.3d 142, 158, quoting People v. Najera (1972) 8 Cal.3d 504, 516-517.)
Chastaine pursued a defense for which he had concrete evidence, namely the discrepancies between the charged victims' testimony and their statements during the SAFE interviews. This was a less risky defense because of the certainty Chastaine had about differences between the boys' trial testimony and their previously recorded statements. The constitutional right to effective assistance of counsel does not require an attorney to pursue impeachment of child victims that had already been undermined by one of the victim's previous testimony. Accordingly, we reject the contention Chastaine rendered ineffective assistance of counsel for lack of impeachment of D. and J. based on speculation they might have previously discussed the molestations committed by defendant.
III
Ineffective Assistance of Counsel Based on Failure of Interview Staff
Defendant contends he received ineffective assistance of counsel because Chastaine did not call additional club employees. Specifically, he points to Chastaine's failure to call E. and A. to testify. We are not persuaded.
A.
Chastaine's Decision Not to Call Additional Club Employees
During the hearing on the motion for new trial, Chastaine testified about his preparations for trial. Chastaine testified the defense discovery in the case comprised "a lot of boxes." Chastaine either personally reviewed the discovered materials or had someone in his office take a look at them. Chastaine reviewed Baker's notes, watched the videotaped interviews of the two charged victims, and read all of the police reports. He also reviewed the testimony of the defense expert during the first trial even though the expert was not available for the second trial.
Based on his review of the evidence and formulation of his trial strategy, Chastaine decided against calling other club staff, including E. and A. Chastaine believed that, at most, their testimony might advance "the concept of [defendant] not having opportunity [to commit the molestations], which is really all that would have gone to." In deciding upon a defense of false memory or suggestibility of the charged victims, Chastaine rejected a lack-of-opportunity defense. Chastaine was particularly wary about calling E. because she had previously made statements that were problematic to the defense.
In denying the motion for new trial, the trial court noted that "the defendant asserts that [Chastaine] failed to present testimony from [E.], [A.], or [Lo.] The defendant claims that the testimony from these potential witnesses would have shown that defendant did not have the opportunity to commit the crimes." The trial court continued:
"Now first, the People argue that the two [club] employees who did testify were not particularly helpful to the defendant. Based on my observation of the two [club] employees who testified, I concur in that assessment. Indeed, the defendant's own summary of their testimony shows how little defense they offered.
"[R.] testified it would not have been strange for defendant and a student to get equipment for games and meet everyone else outside, suggesting that the defendant and the students stayed behind, which is the scenario in which D[.] described how some of the molestation occurred.
"Similarly, [R.] testified that the defendant occasionally left the playground with students and previously told a detective that it happened several times a week. She was impeached with that prior statement. [¶] She also testified that students were allowed to use the restroom in the teacher's lounge on non-school days, which is where J[.] testified that the molestations occurred, which took place mostly during non-school days. [¶] Similarly, [S.] testified that the molestations occurred . . . testified that the defendant was usually leading the way out, but did not say that defendant never stayed back when the kids went out. [S.] further stated that she did not see defendant go into the office with D[.], but did not and likely could not say that it never happened.
"Given this lack of useful testimony, it was not unreasonable for trial counsel to determine that additional [club] staff would not be useful witnesses, particularly since it seemed like there was not a steady regular staff member that was there every day that [defendant] was there."
B.
Chastaine Reasonably Decided Not to Call E. and A. as Witnesses
Defendant contends E. should have been called to testify defendant "did not regularly leave the playground with the children." And he contends A. should have been called to state she "never saw [defendant] take D[.] and J[.] anywhere" or defendant stay behind with a child during recess. These contentions might have merit if Chastaine were compelled to provide a lack-of-opportunity defense.
As we noted above, we do not second-guess the trial tactics of defense counsel. Here, Chastaine was aware of E. and A. as potential witnesses. Chastaine was also aware a lack-of-opportunity defense had serious drawbacks. During the second trial, R. testified she personally observed defendant leave the playground unannounced several times a week. Defendant's absence was so problematic she actually confronted defendant about it. Defendant's other teaching assistant, S., testified defendant regularly left the playground to "take a kid back to [the club] alone." S. observed this to occur "several times a week." Moreover, S. testified she got a "weird" feeling upon walking in on defendant and D. when they were alone together in the club. S. and R. thus lent credibility to testimony by D. and J. that they were molested when defendant isolated them from the rest of the class. Based on the testimony of these four witnesses, Chastaine's tactical decision not to present a lack-of-opportunity defense was reasonable and did not constitute ineffective assistance of counsel.
IV
Defense Counsel's Decision Not to Call J.'s Mother as a Witness
Defendant next contends he received ineffective assistance of counsel because Chastaine did not call J.'s mother as a witness during the second trial. We reject the contention.
A.
Testimony by J.'s Father During the Second Trial
J.'s mother testified in a deposition related to the civil action against the club brought by the victims' families. J.'s mother stated she first learned about the molestation allegations against defendant from the president of the parent teacher association. J.'s mother immediately went home and asked her son about the accusations. In the presence of J.'s father, J's mother asked J. "if he ever played the shake the wallet game." J.'s mother was not called as a witness during the first or second criminal trial against defendant.
During the second trial, J.'s father testified he observed defendant at one of J.'s soccer games taking pictures of the kids. This struck J.'s father as "strange" and "creepy." After that experience, J.'s father began to ask J. questions about his interactions with defendant. J.'s father was concerned about whether defendant was accompanying J. to the bathroom. J. denied receiving help from defendant in the bathroom and J.'s father felt reassured. J.'s father asked him this "more than a couple" of times. And each time J. reported defendant did not accompany him to the bathroom.
After defendant was arrested, J.'s father spoke with J. and "asked him about the wallet, asked him if J[.] ever tried to help [defendant] find his wallet . . . ." J. responded that he had done that with defendant. J.'s father testified:
"And I - I - so I said, Well, what did he do. And [J.] said, Well, [defendant] said sometimes he had a hard time getting his wallet out of his pants and that he'd asked me to help him because my hands are smaller. And he said that he put his hands in [defendant's] pockets in his pants to help him find the wallet. And so I said, Well, what happened next? [¶] . . . He said, Well, I don't know if I ever found it, but I found something in there and it didn't feel like a wallet. I remember asking him, What did you feel? And he said something round and hard. And, um . . . then I said, And what did he do? And he said, Nothing, you know that was it. I never found his wallet, though."
During the second trial, Chastaine was aware the school district had already settled a civil suit with the victims' families and knew he did not want the terms of the settlement being admitted during the criminal trial. Presenting a defense of financial motive by the victims' families struck Chastaine as ill-advised. Chastaine agreed that "it could make the defense look bad in going after the parents with that potential financial motive."
The two parents who testified during the second trial did so in an emotional manner. Chastaine testified he did not think it would help the defense to call an extremely emotional mother as witness. Thus, Chastaine decided not to put J.'s mother onto the witness stand. At the hearing on the motion for a new trial, Chastaine explained that though he was aware of J.'s mother's deposition, he was "pretty certain [he] would not have called her" as a witness because she did not add anything to the case.
In rejecting defendant's motion for new trial based on this claim, the trial court found that "[t]o the extent that defendant argues that [J.'s mother] could have planted the idea that shaking was involved in the game, there was no evidence that the game involved J[.] putting his hand inside defendant's pants pocket to get the wallet out." The trial court further found that "defense counsel at the first trial had the same information and elected not to call [J.'s mother], suggesting that it was a tactical decision. And as a matter of public record, the court notes indeed [J.'s mother] was not called as a witness in the first trial."
B.
Lack of Testimony by J.'s Mother During the Second Trial
Defendant's theory on appeal is that Chastaine should have called J.'s mother as a witness to establish she planted in J.'s mind false memories of the shake-the-wallet game with defendant. Defendant asserts Chastaine was ineffective for failure to call as a witness the first person to question J. about the molestations. We disagree.
The jury in the second trial heard testimony from J.'s father. Because J.'s father was called as a prosecution witness, Chastaine's strategy had to account for the fact the jury heard J. repeatedly deny defendant helping him in the bathroom before answering that he had played the shake-the-wallet game with defendant. As Chastaine noted in his testimony, calling J.'s mother would not have added much for the defense. The jury had already heard one of J.'s parents specifically asked about finding defendant's wallet. Thus, the probative value was minimal. And J.'s mother might have replayed her highly emotional answers as she had during the deposition. The risk was that the jury would gain sympathy for the mother of a child victim while she provided information with little probative value for the defense. Chastaine was not ineffective by making the strategic decision not to call J.'s mother as a witness after J.'s father testified.
V
Claimed Ineffective Assistance of Counsel for Failure to Object to Cross-examination
of Dr. O'Donohue
Defendant next contends he received ineffective assistance of counsel because Chastaine did not object to cross-examination of the defense's expert witness, Dr. O'Donohue. We reject the contention.
A.
Ineffective Assistance of Counsel Relating to Failure to Object to Testimony
Although defendant filed a motion for new trial based on ineffective assistance of counsel, the new trial motion did not argue that Chastaine's performance was deficient because of a failure to object to the prosecutor's cross-examination of Dr. O'Donohue. During Chastaine's testimony regarding the new trial motion, he was not asked about his lack of objection to the cross-examination of Dr. O'Donohue. As a consequence, in reviewing this claim of ineffective assistance of counsel, " 'we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Centeno (2014) 60 Cal.4th 659, 674-675.) "The decision whether to object to the admission of evidence is 'inherently tactical,' and a failure to object will rarely reflect deficient performance by counsel." (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.)
B.
Cross-Examination of the Defense Expert Witness
During the second trial, Dr. O'Donohue testified he had published approximately 65 books, 150 journal articles, 100 book chapters, and a two-volume treatise entitled, "Sexual Abuse of Children." Chastaine elicited testimony from Dr. O'Donohue regarding his research on interview techniques with child victims of sexual abuse as they related to issues of suggestibility and false memories.
The prosecution cross-examined Dr. O'Donohue regarding whether the studies relied upon by the expert did not "actually involve sex abuse at all." Dr. O'Donohue estimated he had testified in over 100 cases involving allegations of child molestation. Dr. O'Donohue could not remember a single instance in which he had been called as an expert by the prosecution. Dr. O'Donohue charged $450 per hour for preparation and testimony and $225 per hour for travel. Dr. O'Donohue estimated he would bill $9,500 for the day of trial during which he testified. He further testified he was paid $125,000 per year by his university.
The prosecutor asked Dr. O'Donohue about the wide variety of topics encompassed by his publications. The prosecutor also asked about a chapter in a book written by O'Donohue in which he discussed the "economic savvy" of professionals in the mental health field. Dr. O'Donohue noted that delivering higher quality care than currently delivered by mental health professionals would probably increase compensation. Dr. O'Donohue further explained the adaptability of nurses helped explain why they earned more than many psychologists who "have buried their heads in the sand and have not done, they have not embraced innovative actions or been adaptable or looked at how the health care crisis is affecting the United States and said, How can we help with that?" Defendant's trial attorney did not object during the prosecution's cross-examination on the topics of Dr. O'Donohue's publications or calls for higher quality and compensation.
B.
Tactical Decisions During Cross-examination
The California Supreme Court has explained, " 'Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence.' (People v. Hayes (1990) 52 Cal.3d 577, 621.) 'Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsel's reasonable tactical decisions.' (People v. Kelly (1992) 1 Cal.4th 495, 520.) As to each of defendant's current contentions, '[t]he record in this case strongly suggests a reasonable explanation for the failure to object.' (Ibid.)" (People v. Riel (2000) 22 Cal.4th 1153, 1185.)
In reviewing defendant's claim that his trial attorney was ineffective in failing to object to the prosecution's cross-examination regarding expert witness compensation and publications, we are mindful that "parties are given wide latitude when cross-examining an expert witness to test the credibility of the expert. (People v. Coleman (1985) 38 Cal.3d 69, 90.) Accordingly, 'a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion.' (Id. at p. 92.) For example, 'a party seeking to attack the credibility of the expert may bring to the attention of the jury material relevant to the issue on which the expert has offered an opinion of which the expert was unaware or which he [or she] did not consider. The purpose and permissible scope of impeachment of an expert is to call into question the truthfulness of the witness's testimony.' (People v. Bell (1989) 49 Cal.3d 502, 532.)" (San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th 1280, 1301.)
Here, the prosecution engaged in permissible cross-examination of Dr. O'Donohue by asking about the views he expressed in his published works. These publicly disseminated views were a fair topic to explore because the prosecution was entitled to show the jury the published opinions of Dr. O'Donohue that might color his assessment in this case. (People v. Bell, supra, 49 Cal.3d at p. 532.) So too, the prosecution was entitled to explore the measure of compensation for Dr. O'Donohue's testimony. The issue of whether payment incentivizes a particular opinion is a fair topic for exploration on cross-examination. "[I]t is proper for the prosecutor to elicit testimony or comment on the amount of money an expert receives for his or her services." (People v. Gray (2005) 37 Cal.4th 168, 217.)
Because the prosecution engaged in permissible cross-examination, defense counsel was not ineffective for failure to object to the cross-examination.
VI
Claimed Ineffective Assistance of Counsel for Failure to Object to the
Prosecution's Closing Argument
Defendant argues he received ineffective assistance of counsel because his trial attorney did not object to improper portions of the prosecutor's closing argument. This argument was not presented in the motion for new trial or explored in Chastaine's testimony during the hearing on the new trial motion. We conclude there was no reversible error even though the prosecutor's closing argument included improper remarks.
A.
The Prosecutor's Closing Argument Regarding Dr. O'Donohue
During the prosecutor's opening statement, she told the jury: "And I am confident that at the end of this [trial] when I stand before you and I ask you to deliver justice to those two boys, that you will do the right thing."
During closing arguments, the prosecutor argued to the jury in pertinent part:
"You know, Dr. O'Donohue makes a ton of money testifying for defense attorneys. Now I'm all for . . . you know, the American way and making money and doing the best you can, but the hypocrisy of him having a child center in Nevada, Reno and where he treats victims of molest and he treats victims of sexual assault, but then comes in regularly, hundreds, over hundreds of times and testifies for defendants charged in sex crimes, should make you just a little sick to your stomach.
"But you know he's got a wallet, and he'll travel.
"The defense described him in his opening statement as a man who has dedicated his life to the topic of child abuse.
"Really? Really?
"Because yesterday he was dedicating his life to a woman who was charged with letting a baby die in her day care and that woman's [PTSD]. That was just yesterday." (Italics added.)
The prosecutor also argued to the jury about Dr. O'Donohue's interest in compensation as follows:
"Or what about all the books we talked about? The entrepreneur ideas of a psychiatrist, all of those things?
"He's dedicated his life of figuring out ways to capitalize on his education and his research to make money and he's found it. He has found it. Because he's made approximately $9000 in this case. And he made approximately $9000 yesterday. And he makes approximately $9000 every time a defense attorney calls him."
The prosecutor continued this theme by arguing: "But we also know, although not necessarily asked directly, what we know is that he makes $450 an hour reviewing materials. And we know he made $9000 in this case, some of it for travel, some if it for the testimony today. The rest of it, you have to assume, was reviewing materials in this case and talking to the defense lawyer. That's what he said: I spent a lot of time reviewing materials, speaking to the defense attorney.
"Did he come in here without any preconceived notions about the case like Dr. [Urquiza]? Did he appear to you to be familiar when he would try to slide in a couple little examples that kind of fit the facts of our case?
"He knew the facts of this case. He knew what he wanted to testify about. He knew that would help the defense attorney."
The prosecutor also explored the following reasoning in front of the jury: "I was driving one day, and I saw this - actually, a bumper sticker. It was a tribute to Voltaire. I had to look it up because it just reminded me of my job. [¶] It's those that can make you believe absurdities that can make you commit atrocities. [¶] That's true. If someone can make you believe something absurd, a very, very bad result can happen, a very bad result."
The prosecutor also argued: "Finally, to all jurors comes the awesome realization that there are times in the affairs of men and women, your neighbors and mine, when no law or threat of punishment, however severe, will for a single moment deter or prevent the most frightful explosions of primitive passion and violence. It falls on me to attend at the official cleaning up of the human debris."
In her rebuttal, the prosecutor argued: "[Y]ou are here to do justice, and you are here to deliver justice. [¶] And, we're not talking about justice, the justice that you need to deliver to [defendant]. We're talking about the justice that you are going to deliver to those two little boys who sat in front of you and talked about what happened to them."
B.
Review of Claims of Prosecutorial Misconduct During Closing Arguments
Defendant's trial attorney failed to preserve the issues of prosecutorial misconduct by not objecting or requesting the jury be admonished as to any claimed instance of misconduct. Anticipating forfeiture, defendant argues he received ineffective assistance of counsel for lack of objections and requests for admonition by his trial attorney. " ' "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' " (People v. Charles (2015) 61 Cal.4th 308, 327, quoting People v. Linton (2013) 56 Cal.4th 1146, 1205.) "In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ' "an admonition would not have cured the harm caused by the misconduct." ' " (People v. Hill (1998) 17 Cal.4th 800, 820, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1333.)
"Regarding the scope of permissible prosecutorial argument, ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his [or her] case and is not limited to 'Chesterfieldian politeness' " [citation], and he [or she] may "use appropriate epithets. . . ." (People v. Wharton [(1991)] 53 Cal.3d [522,] 567-568.)' (People v. Williams (1997) 16 Cal.4th 153, 221.)" (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior 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. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.) 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.' " ' (People v. Espinoza, supra, 3 Cal.4th at p. 820.)" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)' " (People v. Hill, supra, 17 Cal.4th at p. 819.)
B.
Prosecutorial Misconduct
1. Comments regarding Dr. O'Donohue.
The California Supreme Court has held, "Although prosecutorial arguments may not denigrate opposing counsel's integrity, 'harsh and colorful attacks on the credibility of opposing witnesses are permissible. [Citations.]' (People v. Arias (1996) 13 Cal.4th 92, 162 [claimed disparagement of defense expert was not misconduct].) Moreover, a prosecutor 'is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness's testimony is unbelievable, unsound, or even a patent "lie." ' (Ibid. [prosecutor properly implied that defense expert " 'stretch[ed] [a principle] for a buck' "]; see People v. Alfaro [(2007)] 41 Cal.4th [1277,] 1328, 63 Cal.Rptr.3d 433 ['it is not misconduct to question a defense expert's veracity'].)" (People v. Parson (2008) 44 Cal.4th 332, 360.)
The prosecutor may also argue that the more defendants for whom an expert witness testifies, the more likely the expert "is not giving his [or her] true opinion in these cases, or that his [or her] analysis is not as trustworthy as it might be." (People v. Buffington (2007) 152 Cal.App.4th 446, 454-455.) Moreover, "[a]s a matter of common sense, the fact that a well-paid expert witness routinely offers opinions in favor of [certain types of] defendants in a great number of cases has some tendency in reason to prove he [or she] is not being entirely objective in formulating his [or her] opinion." (Ibid.) Nonetheless, the prosecutor errs when arguing an expert's testimony in prior cases establishes the expert's bias in the absence of any showing the expert's prior testimony was erroneous or unwarranted. (Id. at pp. 455-456.)
The Attorney General defends the prosecutor's comments about Dr. O'Donohue's testimony as permissible in light of the prosecution's wide latitude during closing arguments. We disagree the prosecutor's comments about Dr. O'Donohue all fell within the range of permissible argument. The prosecutor erred in arguing to the jury that Dr. O'Donohue's repeated testimony on behalf of "defendants charged in sex crimes, should make you just a little sick to your stomach." The prosecutor suggested Dr. O'Donohue was hypocritical in treating victims of sex crimes and testifying on behalf of criminal defendants charged with the same type of crimes. In the same vein, the prosecutor engaged in misconduct by asserting that the day before his testimony, Dr. O'Donohue "was dedicating his life to a woman who was charged with letting a baby die in her day care and that woman's [PTSD]."
The prosecutor should not have suggested Dr. O'Donohue's testimony in the previous case involved "dedicating his life" to a person charged with infanticide. This remark was unaccompanied by any showing the prior testimony was erroneous or unwarranted. So too, the lack of showing regarding any prior mistaken opinions or testimony meant the suggestion of Dr. O'Donohue's hypocrisy in rendering his prior opinions constituted prosecutorial misconduct. In short, the prosecutor erred in engaging in these personal attacks on Dr. O'Donohue.
2. Exhortation to deliver justice to the victims and "cleaning up the human debris."
The United States Supreme Court has held that a prosecutor engages in error "to try to exhort the jury to 'do its job'; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice . . . ." (United States v. Young (1985) 470 U.S. 1, 18 .) Consistent with this guidance, the Fourth District held that a "prosecutor committed misconduct when he argued that defendant hopes that 'one of you' will be 'gullible enough,' 'naïve enough,' and 'hoodwinked' by the defense arguments so that he 'can go home and have a good laugh at your expense.' " (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1529.) As the Sanchez court concluded, "The prosecutor's comments fell outside the bounds of the 'wide latitude' given to prosecutors during argument because the comments were designed to offend and intimidate the potential holdout juror who doubted defendant's guilt." (Id. at p. 1530.) Thus, the prosecutor improperly argued to jurors: "[Y]ou are here to do justice, and you are here to deliver justice. [¶] . . . We're talking about the justice that you are going to deliver to those two little boys who sat in front of you and talked about what happened to them."
The prosecutor also erred in referring to her job in the case as "the official cleaning up of the human debris." The prosecutor should not have analogized her role in defendant's trial in this manner. " 'A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his [or her] own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear.' " (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.)
C.
Analysis of Prejudice
As the California Supreme Court has observed, "To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (In re Wilson (1992) 3 Cal.4th 945, 950.) 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Scott (1997) 15 Cal.4th 1188, 1211-1112, quoting Strickland v. Washington (1984) 466 U.S. 668, 694 .)
Here, the prosecution's closing arguments comprised 1 hour and 55 minutes. Closing arguments by both sides were lengthy - spanning nearly 100 pages of the reporter's transcript. Based on our review, we conclude the prosecutor's improper remarks were isolated and harmless beyond a reasonable doubt.
Although the prosecutor's arguments were improper to the extent we have noted above, the remainder of her statements to the jury were proper. During closing arguments, the prosecutor told the jury not to be swayed by bias or prejudice, to base its decision only on the evidence presented at trial, and jurors' sole prerogative was to determine witness credibility. The prosecutor several times acknowledged parts of Dr. O'Donohue's testimony with which the prosecutor agreed. The prosecution also informed the jury it should evaluate the prosecution and defense's experts in the same way.
The gravamen of the prosecutor's argument was a focus on the evidence presented at trial and repeated indication to the jury that it was the sole trier of fact. Thus, the prosecution conducted an in-depth exploration of the indicia of reliability of early statements by the victims during SAFE interviews. During this focus on the evidence, the prosecution several times referred to the testimony of Dr. O'Donohue in a manner that indicated Dr. O'Donohue's testimony was to be taken seriously but understood to be limited in utility under the facts presented.
The prosecutor's argument did not disparage defense counsel or denigrate the theory of the case advanced by the defense. Instead, the prosecutor argued the defense case simply was not a credible interpretation of the most reliable evidence in this case. Although the prosecutor's mention of "human debris" was improper, this is not a case in which the defendant was demonized or an argument crafted based solely on the nature of the charges. Instead, the prosecutor argued the evidence had to support the charges and defendant's actions met the definition of the charges. In short, the improper statements were overshadowed by permissible argument. The California Supreme Court has held brief misstatements to a jury were harmless when they "constituted only a small portion of [the prosecutor's] larger argument . . . ." (People v. Collins (2010) 49 Cal.4th 175, 229.) This reasoning applies here and yields the conclusion that the prosecutor's misstatements during closing arguments were not prejudicial. Consequently, defense counsel was not ineffective for failure to object.
VII
Exclusion of Evidence D. Was Admonished Twice
Defendant contends the trial court erred in excluding evidence that defendant twice admonished D. "that their private places are to remain private and that [defendant] talked with D[.]'s parents about the incident." Defendant argues the trial court should have admitted the evidence under Evidence Code section 782. We disagree.
A.
Evidence Code Section 782As this court has previously explained, "Generally, a defendant may not question a witness who claims to be the victim of sexual assault about the victim's prior sexual activity. (Evid. Code, § 1103, subd. (c)(1); People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Evidence Code section 782, however, provides an exception to this general rule. (See generally People v. Bautista (2008) 163 Cal.App.4th 762, 781-782; People v. Chandler (1997) 56 Cal.App.4th 703, 707-708; People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).)
"Evidence Code section 782 requires a defendant seeking to introduce evidence of the witness's prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the proffered evidence to attack the credibility of the victim. (Evid. Code, § 782, subd. (a)(1), (2); Daggett, supra, 225 Cal.App.3d at p. 757.) The trial court is vested with broad discretion to weigh a defendant's proffered evidence, prior to its submission to the jury, 'and to resolve the conflicting interests of the complaining witness and the defendant.' (People v. Rioz (1984) 161 Cal.App.3d 905, 916.) '[T]he trial court need not even hold a hearing unless it first determines that the defendant's sworn offer of proof is sufficient.' (Ibid.; see Evid. Code, § 782, subd. (a)(2).)
"If the offer of proof is sufficient, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. (Evid. Code, § 782, subd. (a)(3); People v. Fontana (2010) 49 Cal.4th 351, 365-368.) 'The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.' (People v. Chandler, supra, 56 Cal.App.4th at p. 708; see Evid. Code, § 782, subd. (a)(4).)" (People v. Mestas (2013) 217 Cal.App.4th 1509, 1513-1514, fn. omitted.)
B.
Defendant's Proffered Evidence
Defendant filed a motion in limine to admit evidence D. had been disciplined twice for inappropriate conduct at the club. According to the offer of proof, the first incident occurred "on November 29, 2007, [when D.] got in trouble at [the club] for 'crawl[ing] under a table and look[ing] up a little girl's skirt.' As a result, [D.] had a student behavior report filled out and sent home." The second incident occurred "on a date prior to December 17, 2009 (the date that [defendant] was placed on administrative leave), while at [the club] [D.] told another boy to pull down his pants to show [D.] his butt. When the boy would not comply, [D.] lifted up the boy's shirt to see his underwear. Upon discovering [D.]'s conduct, [defendant], a [club] teacher, talked with [D.] about the incident and 'keeping our privates, private.' [Defendant] told [D.] he was not to look at other students' underwear or ask other students to show their private parts and his behavior was discussed with his parent upon pickup."
Prior to trial, the trial court noted the motion and invited comment from defendant's trial attorney. Chastaine noted the motion "is filed under [Evidence Code section] 782 out of an abundance of caution." Regarding acts to be admitted, Chastaine stated, "I'm not sure that that was sexual conduct in the terms that we as adults use it. This is the behavior of five- and six-year-olds that really has no sexual overtones to it. It is kids doing what kids do when they're young." Chastaine further noted, "So this is not designed to, you know, embarrass the children specifically, but to just show that yes, they were given this sort of instruction."
The trial court denied the motion without conducting a hearing under Evidence Code section 402. In so ruling, the trial court stated that "the offer of proof appears to me - to the court to be insufficient at this time." Regarding the first admonishment, the trial court found the incident was not "sufficiently similar" to the allegations in the present case because "one involves looking versus touching." Without the requisite similarity, the court found the evidence did not impinge on D.'s credibility. Regarding the second admonishment, the trial court found the defense had not presented sufficient evidence to establish the date of the incident.
We conclude the trial court properly denied the motion because the offered evidence regarding D.'s alleged misbehavior was not sexual in nature as required by Evidence Code section 782. Defendant's opening brief on appeal acknowledges the same in stating: "Because the behavioral reports were not 'sexual acts,' the evidence was not within the purview of section 782." Likewise, defendant additionally states that "[h]ere, the evidence [defendant] sought to admit was not evidence of sexual acts . . . ." Under Evidence Code section 782, however, the trial court may admit evidence only "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness . . . ." (Evid. Code, § 782, italics added; People v. Franklin (1994) 25 Cal.App.4th 328, 334.)
Because we conclude the nature of the offered evidence places it outside the purview of admissible evidence under Evidence Code section 782, subdivision (a), we do not consider whether the offer of proof itself was sufficient under subdivision (a)(3). --------
Based on our conclusion the trial court properly excluded the offered evidence under Evidence Code section 782, we further conclude there was no violation of defendant's constitutional rights to confrontation and due process. "[A] state court's application of ordinary rules of evidence . . . generally does not infringe upon this right." (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, the trial court acknowledged D.'s admonishment could have implicated the issue of bias against defendant. However, nothing in the trial court's comments indicated the issue of bias was foreclosed, but only that defendant had not met his burden under Evidence Code section 782.
Finally, we reject defendant's new theory on appeal that the evidence should have been admitted "to establish [defendant's] actions were wholly inconsistent with his guilt." As defendant concedes, he "is aware that defense counsel did not present [this] argument to the court in seeking its admission." To render the claim cognizable on appeal, defendant asserts ineffective assistance of counsel. Defendant, however, fails to develop this argument. Instead, he constrains his arguments to those under Evidence Code section 782. Accordingly, the assertion is deemed forfeited. (In re S.C., supra, 138 Cal.App.4th at p. 408.)
C.
Whether the Prosecutor Took Unfair Advantage of the Exclusion of Evidence D. Had
Twice Been Admonished by Defendant
Defendant asserts he received ineffective assistance of counsel because his trial attorney did not object when the prosecutor argued to the jury that D. did not know defendant's conduct was inappropriate. In defendant's view, the prosecutor's arguments took advantage of the trial court's exclusion of evidence defendant had admonished D. for looking up a girl's skirt and asking a boy to pull down his pants. We are not persuaded.
Defendant's argument depends on the assumption D. made the connection between looking up a girl's skirt or asking a boy to pull down his pants and the ruse defendant used to get D. to masturbate him on top of and underneath his pants. This assumption is not warranted. As we have noted, defendant's own arguments in the trial court and on appeal acknowledge the two instances of D.'s behavior toward his classmates were nonsexual. Rather than constituting sexually motivated conduct, D.'s relevant actions were breaches of social decorum of the sort children who are five and six years old sometimes engage in. That D. may have been admonished by his teacher for breaching social decorum did not establish he understood his teacher was engaging in sexual misconduct based on deceptive statements and behavior toward D.
We are not persuaded by the claim that the trial court's evidentiary ruling on defendant's motion under Evidence Code section 782 precluded the prosecutor's closing arguments about the naiveté of a kindergartener such as D. Accordingly, we are also not persuaded defendant received ineffective assistance of counsel for lack of objection to the prosecutor's argument regarding D.'s naiveté about the wrongfulness of defendant's deceptive "wallet game" with D.
VIII
Cumulative Error Regarding Ineffective Assistance of Counsel Claims
Defendant contends that, considered together, the instances of alleged ineffective assistance of counsel by Chastaine cumulated to require reversal of the judgment. We disagree. We have rejected all of defendant's claims of ineffective assistance of counsel, even relating to the absence of objection to the prosecutor's closing arguments. Thus, we are also not persuaded by defendant's cumulative prejudice claim.
IX
Unanimity Instruction
Defendant contends the trial court erred in "allowing the jury to convict [him] of all counts if they unanimously agreed he committed one act . . . ." We reject defendant's misinterpretation of the unanimity instruction as given by the trial court.
A.
Jury Instructions Given
The trial court instructed the jury with a modified version of CALCRIM No. 3500 as follows: "The defendant is charged with violating . . . section 288(a), in Counts One through Thirteen, on or about and between February 1, 2008, and December 31, 2009. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed."
The trial court also instructed the jury with CALCRIM No. 3515, which states: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
And the trial court instructed the jury with CALCRIM No. 1191, which provides in pertinent part: "If you decide that the People have proved beyond a reasonable doubt that defendant committed a charged offense, 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 additional charged offenses. If you conclude that the People have proved beyond a reasonable doubt that defendant committed a charged offense, 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 additional charged offenses. [¶] The People must still prove each element of every charge beyond a reasonable doubt."
B.
The Instructions Did Not Allow Multiple Convictions Based on Evidence of Only
One Criminal Act
"[U]nder the due process guarantees of both the California and United States Constitutions, the prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime . . . ." (People v. Flood (1998) 18 Cal.4th 470, 481.) However, proof that a defendant has committed one offense does not also prove he or she committed another. (People v. James (2000) 81 Cal.App.4th 1343, 1353.) As the United States Supreme Court has noted, "trial by jury has been understood to require that 'the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours. . . .' " (Apprendi v. New Jersey (2000) 530 U.S. 466, 477, quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769).)
We review a claim of error in instructing the jury under the independent standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In reviewing any claim of instructional error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) And we presume the jury is "able to understand and correlate instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Focusing on CALCRIM No. 3500 as given in this case, defendant argues that "[t]he jury convicted [him] of all counts, making it likely that the jury followed the court's erroneous instruction by agreeing unanimously on one act, and dispensing with the requirement of unanimity on the others." This claim misreads CALCRIM No. 3500 as given.
Defendant focuses on the following language in CALCRIM No. 3500 as given here: "You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts, and you all agree on which act he committed." In defendant's view, the failure of this instruction to instruct that the jury "had to agree on which act the defendant committed for each offense" rendered it defective. We disagree. The challenged language informed the jury it had to agree on which act defendant committed for a charged offense. The language cannot reasonably be read to inform the jury the proof of one act also proves every other charged act.
Moreover, the other jury instructions clearly informed the jury every charged offense required proof beyond a reasonable doubt. CALCRIM No. 3515 noted each count charged a separate crime that had to be considered separately. And CALCRIM No. 1191 instructed that "[t]he People must still prove each element of every charge beyond a reasonable doubt." (Italics added.) Thus, even if CALCRIM No. 3500 was susceptible to the interpretation advanced by defendant, the other jury instructions would have constrained jurors to the requirement that every conviction of a charge be supported by evidence persuading them beyond a reasonable doubt.
X
Challenge to CALCRIM No. 1191
Defendant contends the trial court erred in instructing the jury with CALCRIM No. 1191 to "prove [his] propensity to commit" the charged offenses. In so arguing, defendant acknowledges he advances an argument against the admissibility of propensity evidence that was rejected by the California Supreme Court in People v. Villatoro (2012) 54 Cal.4th 1152. Defendant additionally acknowledges we are bound by the California Supreme Court's decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant states he presents the argument to preserve his claim of federal constitutional error. Accordingly, we deem the argument raised but reject it under the continuing validity of the California Supreme Court's guidance in Villatoro.
XI
Substantial Evidence Challenge
Finally, defendant contends his convictions for counts 2, 5, 7, and 9 should be reversed because those counts involved the same lewd intent as counts 3, 6, 8, and 10. These offenses were all committed against D. Counts 2, 5, 7, and 9 involved defendant causing D. to touch his penis outside his pants, while counts 3, 6, 8, and 10 involved defendant causing D. to touching his penis inside his pants. Defendant reasons each pair of counts - counts 2 and 3, counts 5 and 6, counts 7 and 8, and counts 9 and 10 - allows for only one conviction because each pair involved only one act of causing D. to touch his penis. Thus, he argues the evidence was insufficient to show he committed separate offenses for each of the four pairs of convictions. We disagree.
" 'When a jury's verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.' " (People v. Ghipriel (2016) 1 Cal.App.5th 828, 832, quoting People v. Brown (1984) 150 Cal.App.3d 968, 970.) " ' "Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Manibusan (2013) 58 Cal.4th 40, 92.)
Under principles of double jeopardy, a defendant may be convicted of multiple violations of the same statute only if the defendant "completed" multiple crimes. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1474-1475.) In the context of lewd or lascivious conduct against a child, "multiple sex acts committed on a single occasion can result in multiple statutory violations . . . , and separate punishment is usually allowed." (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 (Scott).) Thus, "[e]ach individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation." (Id. at pp. 346-347.)
Here, defendant asserts his causing D. to touch his penis on top and inside of his pants involved the same body parts and therefore constituted the same offense. Defendant further asserts each singular act was committed with singular intent, namely to cause D. to touch his penis. In evaluating defendant's reasoning, we draw instruction from the California Supreme Court's decision in People v. Harrison (1989) 48 Cal.3d 321 (Harrison).
Harrison involved convictions on three counts of sexual penetration with a foreign object (§ 289) arising out of an incident in which the defendant assaulted the victim and inserted his fingers into her vagina. (48 Cal.3d at pp. 324-327.) The victim struggled against the defendant's blows and managed to twice dislodge defendant's fingers from her vagina. (Id. at pp. 325-326.) The Harrison court concluded each of the three digital penetrations supported a separate conviction. (Id. at p. 329.) The Supreme Court held that "a new and separate violation of section 289 is 'completed' each time a new and separate 'penetration, however slight' occurs." (Ibid.)
The holding in Harrison, supra, 48 Cal.3d 321 was applied by this court in People v. Jimenez (2002) 99 Cal.App.4th 450 (Jimenez). Jimenez involved convictions on three counts of section 288, subdivision (a), and three counts of section 288, subdivision (b), for the defendant's fondling of a victim on a single occasion. (Id. at p. 453.) The evidence showed the victim had been asleep until she felt the defendant "rubbing her breasts. Defendant squeezed her thighs and rubbed the area of her vagina, first over and then under her clothes. He stuck his finger inside her vagina. Defendant also rubbed [the victim]'s 'bottom,' first over and then under her clothes, and stuck his finger inside her 'bottom.' " (Id. at p. 452.) This court affirmed the multiple convictions, explaining that when "a defendant fondles a portion of the victim's body with the requisite intent, a violation of section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim's body and then moves on to fondle a different area, one offense has ceased and another has begun." (Id. at p. 456.)
Defendant reads Jimenez, supra, 99 Cal.App.4th 450 to hold multiple convictions require touchings of multiple body parts. We disagree. As we previously explained, "There is no requirement that there be a delay between the completion of one act and the commencement of another." (Id. at pp. 456-457.) This reasoning applies here to compel the conclusion that when defendant stopped D. rubbing his penis over his pants, rolled up his pants, and then had D. rub his penis from inside the pant leg, the two separate touchings warrant separate convictions. Any other interpretation would reward " 'the clever molester[, who] could violate his [or her] victim in numerous lewd ways, safe in the knowledge that he [or she] could not be convicted and punished for every act.' " (Id. at p. 455, quoting from Scott, supra, 9 Cal.4th at p. 347.) Consequently, the evidence supported separate convictions for counts 2, 3, 5, 6, 7, 8, 9, and 10.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MURRAY, J.