Opinion
B230716
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. REGINALD WHATLEY, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA112814)
APPEAL from a judgment of the Superior Court of Los Angeles County, Pat Connolly, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Reginald Whatley appeals from the judgment entered following a jury trial which resulted in his conviction of two counts of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)), the continuous sexual abuse of a child under the age of 14 years (§ 288.5), the commission of a lewd act upon a child who was 14 years old and at least 10 years younger than Whatley at the time of the act (§ 288, subd. (c)(1)) and two counts of molesting a child under the age of 18 years (§ 647.6, subd. (a)(1)), and the jury's findings that, with regard to the first four counts, the victims were under the age of 18 years at the time of the offenses and the prosecution for the offenses was commenced prior to the victims' 28th birthdays (§ 801.1, subd. (a)) and that Whatley committed offenses against multiple victims (§ 667.61, subd. (b)). The trial court sentenced Whatley to 30 years to life in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. T.H.
Defendant and appellant, Whatley, is the father of T.H. T.H., who was born in the spring of 1986, spent most of her childhood living with Whatley and his friend, Ray. Although the family "mov[ed] around a lot[,]" they spent most of their time in Ray's two-story house in an area called Glencove in Solano County, California. Whatley and his friend, Ray, had bedrooms upstairs while T.H. had a bedroom downstairs.
One day, when T.H. was approximately 11 years old, she was in her room packing her clothes to go to her stepmother's home in Los Angeles for the summer when Whatley came in and asked T.H. if she wanted "to see what all the little boys want to do." Whatley told T.H. to give him some lotion and, after she handed him a bottle, he went into the bathroom. Approximately five minutes later, Whatley called to T.H. and told her to come in. T.H. was somewhat surprised because that was the first time her father had called her T. Until that day, he had always referred to her as "Little" T.
T.H. walked over to the bathroom and stood by the door. Inside, she saw her father masturbating. He ejaculated on the vanity mirror. Approximately two minutes later, when he had finished, T.H. walked back to her bedroom. Whatley followed her and, although she could not remember what he said to her, as she stood in front of her bed he lifted up her shirt and bra and "started sucking on [her] breasts." Whatley placed his mouth on T.H.'s breast for approximately 20 seconds. When he had finished, Whatley left the room.
T.H. was "stunned." She started to cry, but continued to pack to go to her stepmother's home. She did not tell anyone about the incident because she was afraid of her father.
T.H. was frightened because her father told her not to tell anyone what had happened. T.H. took her father seriously because she had "seen [him] beat on his women." T.H. indicated that she was "afraid of what [her father could] do."
T.H. stayed at her stepmother's house for approximately three months, or the length of her summer vacation. That fall, T.H. returned to her father's home in Glencove. There, Whatley inappropriately touched T.H. for the second time. This time it was late in the evening and T.H. was in her room. She had been outside "playing with a boy" and Whatley told her that he needed to "check" her. He indicated that she was to go into her room and remove her clothes. As her father had no medical training, T.H. thought it "weird" that he wanted to "check" her vagina. However, she was feeling frightened so she went to her room, pulled down her pants and panties and sat on the edge of her bed. Whatley then came into the room and told T.H. to lie down. After she did so, he "tried to stick his finger inside of [her]" vagina. T.H. "jumped back" because it hurt when Whatley touched her. Although Whatley touched T.H.'s vagina, he was unable to penetrate it. When T.H. started to cry, her father stopped touching her and left the room. Although she was very upset after this incident, T.H. still did not tell anyone what had happened.
A third incident occurred when T.H. was still 11 years old. One evening, T.H. was in her father's bedroom laying on his bed watching television. She could not remember how it came about, but she remembered being naked, and her dad, who was on top of her, penetrated her vagina with his penis. After approximately five minutes, Whatley ejaculated. He then removed his penis from T.H.'s vagina and told her to "get up" and "go wash up." T.H., who had been crying throughout the incident, went into the bathroom and sat on the toilet. After approximately five minutes, she got up and went to her room. Again, T.H. did not tell anyone about the incident. She thought that no one would believe her.
The following day, T.H. took a shower in the upstairs bathroom. As she was getting out, Whatley walked into the bathroom and told T.H. to "sit on the . . . vanity, so he could see if [she] was still open." T.H. did as she was told and her father "stuck his finger in [her]." T.H. jumped back because it hurt when Whatley touched her. After stating that she was "still tight," Whatley removed his hand and told T.H. to "hurry up and get dressed" so they could go to a barbeque. T.H., who was still "scared," did not tell anyone about the incident.
T.H. was almost 12 years old when, one day after school, she went to Marine World where Whatley was working. T.H. decided to go on one of the rides and, when she was up in the front and at the top, she saw Whatley pull up in his car in the parking lot. T.H. knew that Whatley was looking for her and she attempted to "scream and tell him that [she was] on the ride," but he did not seem to hear her. Whatley left and T.H. walked with some of her cousins to her "godsister-in-law's house," where she waited for her father to pick her up. As he was driving back to the house in Glencove, Whatley told T.H. that her stepsister had told him that he needed to "check" her because she believed that T.H. had been with a boy at Marine World. When they arrived at the house, Whatley told T.H. to go to her room and remove her clothes. He said he would be there in a moment.
T.H. went to her room and sat on the edge of the bed. When her father came in, he told T.H. to "let him see if [she] was up there doing anything." T.H. pulled down her pants and Whatley, after telling her to lay down, "checked" her by placing his finger inside her vagina. When he finished, Whatley said, " 'All right. Go to bed.' " After Whatley left the room, T.H. started to cry.
At some point after the "Marine World" incident, Whatley and T.H. moved in with T.H.'s cousin and his family. T.H.'s cousin, his wife and their children lived in an apartment on 120th Street at Vermont in Los Angeles. Whatley and T.H. shared the living room. One night after everyone else had gone to bed, T.H. went into the living room to go to sleep. It was dark except for the light from the television. Whatley "laid down with [T.H.]," then orally copulated her. Whatley performed oral sex on T.H. for between three and five minutes, or until one of her cousins came out of his bedroom. T.H. did not tell anyone about the incident until "a week later."
The first person T.H. told about Whatley's sexual abuse was her cousin, K.J. Although she was frightened and still not sure that anyone would believe her, T.H. chose to tell her cousin because her cousin had "had the same thing happen to her[.] [I]t just wasn't [Whatley.]" Once she told K.J., T.H.'s mother, cousins and sister took T.H. to Martin Luther King Hospital to be examined. There, T.H. told the doctors and the nurses about the incidents with her father. After she was examined by a doctor, T.H. was interviewed by an officer from the Los Angeles Police Department.
On defense counsel's motion, the testimony of the doctor called by the prosecutor, Ruben Hernandez, was stricken as he could not remember whether he, or another physician, had examined T.H. and he did not remember whether he, or someone else at the hospital, had written the report regarding her condition.
Los Angeles Police Sergeant Alcenda Neal was working as a field training officer in February 1999. On February 27, Neal, and the officer he was training, Rivera, were called to Martin Luther King Hospital to take a report from T.H. The officers spoke with T.H. for between 30 minutes and an hour. During that time, T.H. told the officers that her abuser was her father, Reginald Whatley. T.H. told the officers she had been living with Whatley since she was two months old and that the sexual abuse had started approximately one year earlier, when she was 11. T.H. recounted for the officers incidents where there had been "a hand to vaginal touching" and "at least three incidents where actual sexual intercourse [had taken] place." The most recent incident had occurred approximately 10 days earlier, on February 17.
T.H. testified that, at times, when she was an adult, she had lived with Whatley. She did so, however, only because she had nowhere else to go and "[h]e admitted to touching [her] when [they] were in Glencove, and he said that it would never happen again. And from there [she] just gave it to God and said that [she would] deal with it[.]" On cross-examination, it was also determined that, as an adult, T.H. had worked as a prostitute and suffered a conviction for the offense. However, at the time of trial, she was no longer involved in prostitution. She was attending school, studying to be a medical assistant.
b. S.B.
S.B. was born in the summer of 1990. Appellant, Whatley, is S.B.'s mother's brother and, when she was very young, was S.B.'s favorite uncle. When S.B. was growing up, Whatley treated her well. He would take her places and, on her birthday, he would "throw" her a party. Although they never lived together, when she was a child, S.B. and Whatley had a "close relationship."
Whatley began to sexually abuse S.B. when she was 12 years old. It was close to S.B's birthday and she wanted to have a party to celebrate turning 13. She asked Whatley if he would have a party for her and he agreed to have one, but indicated that she would have to do something for him first. S.B. stated: "[L]ike it was just crazy, like we did things, like—like when I used to come—like go out with his girlfriend's daughter, and he used to take me back home, like he used to take me somewhere like and try to touch on me and stuff. [¶] And then like one—like that night he like had sex with me on that night."
It was approximately 11:00 p.m. when Whatley picked up S.B. and his girlfriend's daughter from the movie theater. After taking his girlfriend's daughter home, Whatley took S.B. to a spot in "Compton, by the railroad tracks[,]" near East 95th Street. As they were driving there, Whatley told S.B. that, since he was "doing all this for [her], like, getting [her] out of the house and taking [her] out and everything, like [she] should be able to do something for [him]." After he parked the car, Whatley, whose pants were already unzipped and coming off, got into the back seat with S.B. and "started kissing on [her]" and telling her that it was "going to be okay." Whatley then "touch[ed]" S.B., took off her jeans and "forc[ed]" his penis into her vagina. S.B. did not fight back or attempt to stop Whatley because she was afraid of him. She cried, closed her eyes and "hoped he [would hurry] up and get over it." When he was finished, Whatley told S.B. to not say anything about what had happened. S.B. did not tell anyone about the incident because she was "scared."
Approximately one year later, when S.B. was 14 years old, Whatley had broken his foot and was having difficulty doing things for himself. He telephoned S.B.'s grandmother, who S.B. was living with at the time, and asked the grandmother if S.B. could come over and do some cleaning and other household chores for him. S.B. walked to Whatley's apartment and, when she arrived, she realized that he was the only one at home. Although S.B. initially believed she had been sent to the apartment to pick up and clean, when she arrived, she realized that Whatley "just wanted [her] to jack him off." Whatley, who had a cast on one leg, was in bed. He lowered his pajama bottoms and, when S.B. approached him, he grabbed her right hand and placed it on his penis. He then told her "what he wanted [her] to do, and [she] did it." S.B. complied with Whatley's request because "[h]e told [her] to" and she was "scared." S.B. "jack[ed]" off Whatley for "no more than five minutes." After Whatley ejaculated, he told S.B. to not say anything and he sent her home. S.B. did not tell anyone about the incident because she "knew nobody was going to believe [her] and [she] was . . . scared" and "embarrassed."
When she was still 14 years old, Whatley again sexually assaulted S.B. Whatley and S.B. were in Whatley's car, traveling up Compton Boulevard. It was at night and Whatley was driving while S.B. was sitting in the front passenger seat. Whatley parked the car on a quiet, dead-end street, then told S.B. to not say anything. Whatley began kissing S.B. on her neck and, after once again telling her to not say anything to anyone, told S.B. to get into the back seat of the car. Whatley then climbed over the front seat into the back seat and had S.B. pull down her pants. Because she was "scared," S.B. did as she was told. She had removed her pants and Whatley got on top of her. He forced his penis into S.B.'s vagina. After Whatley ejaculated, he removed his penis, pulled up his pants and drove S.B. home. Once again, S.B. did not tell anyone what had happened.
In 2005, S.B. "started having dreams" about the various incidents of sexual abuse she had suffered and she decided to tell her uncle, Whatley's brother, Roy L., about them. She chose Roy L. because she believed she could trust him. He had always been there when her grandmother was sick and he "always came to [events]" at S.B.'s "school." Even then, she did not tell Roy L. everything. After she told Roy L. about Whatley's abuse, Roy L. told S.B. to tell her school principal what had happened.
The same day that she spoke to Roy L., S.B. spoke with the principal at her school. After telling the principal about Whatley's conduct, S.B. spoke with a police officer. During her interview with the officer, S.B. told him what Whatley had done to her. Although S.B. did not tell the police officer about the incident during which Whatley had had her "jack[] [him] off," she did tell the officer about the two incidents "involving sex[ual intercourse]." S.B. indicated that, although she had not wanted to have sex with Whatley, she had agreed to because she wanted a birthday party.
S.B. had never told anyone at her school about the molestation because she was "scared," "embarrassed" and "ashamed." She "didn't want anybody looking at [her] funny."
On a later date, S.B. told her grandmother, Whatley's mother, about the abuse. S.B.'s grandmother did not believe S.B.
Roy L. is Whatley's half-brother. Although he knew all his nieces, T.H., S.R. and S.B., he had spent the most time with S.B. Roy L. saw S.B. "regularly" and, as she got older, he "spent a lot of time with her during her school days." One day in 2005, Roy L. was taking S.B. to school when she started to cry. Roy L. asked S.B. what was wrong and she told him that her Uncle Reggie, which is how she referred to Whatley, had raped her. Roy L. "just couldn't believe that it [had] happen[ed]." However, S.B., who was "crying" and "very emotional" at the time, told Roy L. that it had happened "at the beach" in Whatley's car. Roy L., who had grown up with Whatley, then began to cry because he "just couldn't believe that [Whatley] would do something like that to [S.B.]." Roy L. told S.B. that the incident would "have to be reported" and he told her to tell the authorities at her school. Roy L. indicated that he did not wish to be involved in the matter.
On September 14, 2005, Los Angeles Police Officer Dean Thompson and his partner, Officer Gowan, were directed to report to S.B.'s school to investigate a child abuse allegation. After Thompson spoke with a school counselor, who told him that the uncle of the child in question had been having sex with her, the officer met with S.B. In the presence of his partner and the school counselor, S.B. told Thompson that her uncle, Reginald Whatley, had made her have sexual intercourse with him on two occasions. When she spoke to the officers, S.B. seemed "fearful," "apprehensive" and "upset." She was, however, most of all "fearful." Throughout the one-hour interview, S.B. "always seemed fearful." S.B. told the officers that the incidents took place in Whatley's car, after he had parked it on the 1600 block of East 95th Street. During the interview with S.B., Officer Thompson took notes, which he later included in a two-page report. Once he had completed the report, Thompson turned it over to detectives in the department.
Officer Thompson later went to East 95th Street to investigate. The street dead ends into some railroad tracks and there are several cul-de-sacs in the area. The officer considered the area to be "very dangerous" and noted that "there is not a whole lot of vehicle traffic going through there at night."
c. S.R.
S.R., who was born in 1994, was 16 years old at the time of trial. Whatley is her uncle. As she was growing up, S.R. was quite close to Whatley. Although she did not live with him, she saw him almost every day.
In January 2010, Whatley came to the house where S.R. was living and asked S.R. to take some photographs. He wished to have photographs of S.R. while she was wearing only her bra and panties. S.R. had a camera, which Whatley had given to her, and Whatley told S.R. that, if she would take the photographs, he would give her money to purchase a cellular telephone. Whatley gave to S.R. a letter with two photographs of women in swimsuits enclosed. He gave her the letter while they were in the hallway of her grandmother's home when no one else was around. In the letter, Whatley asked S.R. to pose, in her bra and panties, "in a way that's in . . . [the] photographs." Whatley told S.R. to not tell anyone about his request. He wanted her to keep it a secret. He told her, " 'Don't tell no one.' "
Whatley's request made S.R. feel "uncomfortable" and, in March 2010, during a conversation in her grandmother's kitchen, S.R. told Whatley that she was not going to do it because she felt "strange" and "uncomfortable" about it. By this time, Whatley had written S.R. a second letter in which he had told her to take the pictures of herself in the bathroom. Whatley again told S.R., " 'Don't tell anyone' " and again offered her money for the photographs.
After she received a third letter from Whatley, in May 2010, S.R. told her teacher at school about the situation. After speaking with her teacher, S.R. spoke with a police officer, a Detective Mason. The detective showed S.R. a photograph, which she identified as her uncle, Reggie Whatley. S.R. did not tell anyone in her family about the letters or Whatley's request because she was "scared" and a little embarrassed.
Desirie Safotu teaches History and Government at S.R.'s school. In May 2010, Safotu received a letter from S.R., who had been one of her students. In the note, S.R. told Safotu why she, S.R., had been distraught that morning. From S.R.'s letter, Safotu believed that S.R.'s uncle wished her to perform "[s]exual acts" for him. The letter indicated that S.R.'s uncle was asking her "to do something" and he was "sending her pictures." After S.R., gave Safotu the note, Safotu "reported [having received it] . . . to [her] assistant principal."
On the afternoon of May 18, 2010, Los Angeles Police Officer Thomas Harrison responded to a call directing him to S.R.'s school, where he and his partner, Officer Tabares, were to investigate allegations of child abuse involving 16-year-old S.R. At the high school, Harrison and his partner first met with the assistant principal, Gary Martinez, then met with S.R. At first, S.R. "was worried she was going to get in trouble." However, she then told the officers about an incident which had occurred in January 2010. S.R. "said that . . . she was having a conversation with her uncle [Whatley] about having a cell phone. He said that he would give her money for the cell phone if she posed in some pictures." Then, in "March 2010[,] he wrote her a letter repeating the previous . . . statement[.]" He "offer[ed] her money for pictures, and he attached a couple of copies of pictures to demonstrate what he was asking for." The pictures "looked like a model from a swimsuit magazine." Harrison wrote a report regarding his meeting with S.R., then turned the report in to his watch commander.
d. Evidence pertaining to all three victims.
Dr. Jayme Bernfeld is a clinical psychologist who specializes in the treatment of children who have been sexually abused. The doctor explained that "child sexual abuse accommodation syndrome" describes "the behavior of children that have been sexually abused and helps people understand why [an abused child's] behavior doesn't necessarily fall in line with what [one] would expect." Bernfeld indicated that there are five parts to the syndrome. "The first two parts . . . deal with the context in which [the] child abuse occurs. . . . [T]he first part is secrecy . . . ." Child abuse generally occurs in private. That fact sends a message to the child that it is "something that shouldn't be talked about. If it was something [one] should talk about, it would happen in front of everybody else. [¶] That [fact] then . . . presents a double edge[d] sword to the child . . . . [N]ot telling the secret is" comfortable. If no one knows, "nothing bad will happen." On the other hand, "if [the child] tell[s] the secret, something bad might happen[.] [The child] might not be believed" or "liked."
The second part of the model is physical and social "helplessness." According to Dr. Bernfeld, the "secrecy" and the "helplessness" create "an environment where children are much more likely to go along with bad things that are happening to them." That leads to the third component, which is "accommodation." Accommodation occurs when a child is more likely to "go along with [something]" rather than attempt to change it. The fourth category is "delayed disclosure." An abused child is not likely to disclose the abuse from the beginning. In addition, disclosure frequently comes a little at a time, or in "pieces," depending upon to whom "the child is talking . . . and their comfort level" with that person. The fifth part of the model appears in cases where a child is not believed or is given little or no support. It is called "retraction" and it occurs when a child decides to pretend the abuse never happened. Under those circumstances a child will "retract" their story or "disclosure." The child's fantasy is that the abuse will simply go away and life can proceed "as it was before [he or she] disclosed." Dr. Bernfeld indicated that the longer a child keeps the abuse a secret, the more difficult it is to "talk about it." In addition, the stronger the relationship between the child and the abuser, the less likely it is that the child will disclose the abuse.
According to Dr. Bernfeld, child sexual abuse is most commonly disclosed when the child grows older. The doctor continued, "[I]t is very common for the disclosure not to happen until later in life, and often [after it has been] [pre]cipitated by [some sort of] event . . . ." Even then, the victims of childhood sexual abuse will likely disclose that fact only to someone "who they have confidence in," who "they trust" and "who they believe will believe them and not be upset by the information."
Dr. Bernfeld was of the opinion that it was not uncommon for a child to remain with an abuser, even into adulthood, if the abuser is a parent. The same would be true if the abuser had been an uncle which the abused child had, at least at one point in time, felt close to. Disclosure in such cases is particularly difficult, especially if the abuser offers the child some reward, such as a party or money, for keeping the abuse a secret. However, at some point, "accommodation" of the "negative events" of abuse becomes difficult to live with. "[I]t becomes difficult to do . . . either because [one is] feeling guilty or [one is] having bad feelings[.]" This can lead to a "decline[] in performance" at school or in other areas of the child's life.
With regard to abuse which occurs within a family, Dr. Bernfeld was of the opinion that family members are usually hesitant to pick sides. "[I]t's a lot easier in most families to just stay out of it and to remain neutral . . . ."
Dr. Bernfeld indicated that "very young children [who are] three and four years old have a fantasy life" and they will lie "to keep out of trouble." It is also true that a child might allege sexual abuse that never happened. However, it had been the doctor's experience that "[c]hildren lie the most with regard to child sexual abuse by saying it didn't happen" when "it did."
Los Angeles Police Department Detective Marya Mason handles sexual assault cases and was assigned to investigate the case against Reginald Whatley. The detective first investigated the case involving S.R. From her work on that matter, Mason discovered two additional victims, T.H. and S.B. Mason interviewed each victim, several witnesses and Whatley, himself. After Whatley, during an interview with both Mason and another officer, William Grzybowski, admitted some instances of abuse, Mason placed him under arrest.
2. Procedural history.
Following a preliminary hearing, an amended information filed on November 4, 2010 charged Whatley with committing a lewd act upon a child under the age of 14 years (§ 288, subd.(a)) (Count 1), the continuous sexual abuse of a child under the age of 14 years (§ 288.5) (Count 2), the commission of a forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)(1)) (Count 3), the commission of a lewd act upon a 14-year-old child who was at least 10 years younger than Whatley (§ 288, subd. (c)(1)) (Count 4) and two counts of molesting a child (§ 647.6, subd. (a)(1)) (Counts 5 & 6). It was further alleged, pursuant to section 801.1, that, as to counts 1 through 4, the victims were under the age of 18 years at the time of the commission of the offenses and the prosecution for the offenses was commenced prior to their 28th birthdays, and that, pursuant to section 667.61, subdivision (b), Whatley committed the offenses against multiple victims.
Trial was by jury. During trial, and in response to the People's motion, the trial court ordered the information amended so that count 3 alleged a violation of section 288, subdivision (a) (lewd act upon a child) rather than section 288, subdivision (b)(1) (forcible lewd act upon a child).
After hearing the evidence, instructions, including those on lesser included and related offenses, and argument, on December 10, 2010 the jury found Whatley guilty of all six counts and found true each of the special allegations.
Sentencing proceedings were held on February 1, 2011. With regard to count 2, Whatley's conviction of the continuous sexual abuse of a child in violation of section 288.5, the trial court considered that he had also been found to have abused multiple victims within the meaning of section 667.61, subdivision (b) and, accordingly, sentenced Whatley to a term of 15 years to life in prison. For his conviction of count 3, the commission of a lewd act on a child 14 years of age or younger in violation of section 288, subdivision (a), the court again considered the finding that there were multiple victims and imposed a consecutive term of 15 years to life, for a total term of 30 years to life in prison. As to count 1, the commission of a lewd act upon a child under 14 years of age in violation of section 288, subdivision (a), the court imposed a term of eight years, the term to run concurrently to that imposed for counts 2 and 3. For count 4, Whatley's conviction of the commission of a lewd act on a victim who was 14 years old in violation of section 288, subdivision (c)(1), the trial court imposed a concurrent term of three years and, for his convictions of counts 5 and 6, molesting a child under the age of 18 years in violation of section 647.6, subdivision (a)(1), the trial court imposed terms of one year for each count, the terms to run concurrently to those imposed for counts 2 and 3. In total, the trial court sentenced Whatley to 30 years to life in prison.
The trial court ordered Whatley to pay a $2,000 restitution fine (§ 1202.4, subd. (b)) and a stayed $2,000 parole revocation restitution fine (§ 1202.45). In addition, he was directed to pay a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court security fee (§ 1465.8, subd. (a)(1)) as to each count, as well as a $20 DNA penalty assessment (Gov. Code, § 76104.7). The trial court awarded Whatley presentence custody credit for 233 days actually served and 46 days of conduct credit. Upon release from custody, Whatley was ordered to register as a sex offender.
Whatley filed a timely notice of appeal on February 4, 2011.
This court appointed counsel to represent Whatley on April 13, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed October 19, 2011, the clerk of this court advised Whatley to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On November 7, 2011, Whatley filed a supplemental brief in which he appears to be asserting that his appellate counsel was ineffective for failing to argue (1) that police officers violated his rights under Miranda by failing to advise him of his right to counsel before giving him a polygraph test; and (2) that virtually all of the witnesses who testified against him were being untruthful. In making this second argument, Whatley points to supposed inconsistencies in the witnesses' testimony.
Miranda v. Arizona (1966) 384 U.S. 436.
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An indigent defendant has the right to the effective assistance of counsel on appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) "The duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate include the duty to 'argue all issues that are arguable.' " (Ibid.) "[F]or an issue to be an arguable issue on appeal it must be reasonably arguable that there is prejudicial error justifying reversal or modification of judgment." (Id. at p. 1211.) "[I]t is not the duty of appellate counsel to 'contrive arguable issues.' " (Ibid.)
Initially, appellate counsel cannot be faulted for failing to argue that constitutional error occurred when law enforcement officers failed to advise Whatley of his rights pursuant to Miranda before giving him a polygraph test. No evidence from such a test was offered at trial and, accordingly, none of Whatley's statements made during the test appear as part of the record on appeal.
With regard to Whatley's assertion the witnesses who testified against him were untruthful, a review of the record reveals that the witnesses referred to by Whatley were remarkably consistent in their testimony. Any inconsistencies were insubstantial. Moreover, the determination of the credibility of witnesses is not the function of the appellate court. " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, a reading of the record establishes that more than substantial evidence supports the jury's findings. Under these circumstances, appellate counsel properly chose not to argue that Whatley's convictions were not supported by the testimony of the witnesses at trial. (In re Spears, supra, 157 Cal.App.3d at pp. 1210-1211.)
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CROSKEY, J. We concur:
KLEIN, P. J.
KITCHING, J.