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People v. Williams

California Court of Appeals, Second District, Fifth Division
Mar 26, 2008
No. B200950 (Cal. Ct. App. Mar. 26, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN WILLIAMS, Defendant and Appellant. B200950 California Court of Appeal, Second District, Fifth Division March 26, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, William J. Birney, Jr., Judge. No. VA095847

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

KRIEGLER, J.

Defendant and appellant Franklin Williams was convicted by jury of committing a lewd act upon Audrey S., a child under the age of 14, in violation of Penal Code section 288, subdivision (a). Defendant admitted three prior convictions within the meaning of section 667, subdivision (a), and the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). He was sentenced to state prison for a term of 40 years to life.

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

In this timely appeal from the judgment, defendant argues the trial court committed prejudicial error under the federal constitution and state law by excluding evidence pertaining to Audrey’s accusation that she was molested by both defendant and her stepfather. Defendant argues he was entitled to present evidence of the allegation of molestation against the stepfather and was denied the right to present evidence that Audrey’s grandmother was motivated to contact the police due to both molestations. Defendant further argues trial counsel was ineffective for failing to seek to remedy evidence suggesting defendant had molested his own sisters. Finally, defendant argues he was not fully advised of his constitutional rights before admitting his prior convictions. We affirm.

FACTS

Emily A. slept in the den of a house in Norwalk, along with defendant, who was her husband, and her granddaughter Audrey. Emily and defendant shared a queen sized bed; Audrey slept next to her in a smaller bed.

In June 2006 Emily awoke and saw defendant standing on the other side of nine-year old Audrey’s bed. Audrey was close enough for Emily to reach over and touch Audrey at arm’s length. Defendant had his hand under the pajama bottoms worn by Audrey, who was laying on her stomach. When defendant saw that Emily was awake, he pulled his hand out from under the covers. Emily asked, “What are you doing?” Defendant said nothing and went outside quickly. Emily quickly fell back asleep as she was taking Seroquel, an antidepressant that makes her sleepy. Defendant was aware she was taking the medicine.

Audrey had been sleeping when defendant woke her up by touching her. She saw defendant standing next to her, but she was too scared to speak. She felt defendant’s hand on her skin, under her pajamas. Emily saw that Audrey was awake, peeking out from under the covers.

Emily did not report the molestation to the police for a period of almost one week. She had continued to sleep in the room with defendant and Audrey after witnessing the molestation because she did not want to believe that it happened. She was certain she saw defendant’s hand under Audrey’s pants. Emily eventually called the police because defendant kept accusing her son-in-law of molesting Audrey. Defendant gets mad easily, and Emily is afraid of him.

Jennifer P., age 21 at the time of trial, was 14 years old when she lived in Hacienda Heights with her sister Jessica, her grandmother Gracey W., and defendant. Jennifer slept in a room with her sister. Defendant would come into their room, unbuckle her pants, put his fingers on her private parts in front, and play with her. She asked defendant why he was doing that and told him to stop because she would tell her grandmother. Defendant said nothing in response. Jennifer did tell her grandmother, but defendant did not stop. She saw defendant do the same thing to her sister, who was 16 years old at the time. The molestations started when Jennifer was about 8 or 9 years old. The last time defendant touched her, it occurred in the front room while she was watching television. She ran next door and told the neighbor, who called the police, but the case was not pursued in court. Defendant denied the molestation and screamed at Jennifer’s grandmother. Defendant molested Jennifer when he got drunk, which was almost every night. Jennifer also told her mother, who did nothing.

DISCUSSION

Exclusion of Evidence that Audrey Accused Her Stepfather of Molestation

Defendant argues the trial court committed reversible error by excluding evidence that Audrey had accused her stepfather of molesting her. According to defendant, the evidence of her accusation of molestation by her stepfather was relevant whether or not the accusation was true, because Audrey may have misinterpreted defendant’s innocent touching in light of the other molestation. The misinterpretation was particularly likely, in defendant’s view, since Audrey and Emily testified to inconsistent descriptions of the touching by defendant. Defendant argues the ruling violated state evidentiary law and his federal constitutional right to due process. Neither contention has merit.

This issue arose prior to the commencement of evidence when the prosecution moved on relevancy grounds to exclude evidence that Audrey had also accused her stepfather of molestation. According to the prosecution, Audrey told the police she was separately molested by defendant and her stepfather. The stepfather had pled guilty “to a charge of 288” and had been sentenced by the time of defendant’s trial. Defense counsel argued that accusations against different persons by the same complaining witness are “certainly relevant to a determination by the jury or by the trier of fact as to the accuracy of any of the accusations.” The trial court noted that the stepfather had been arrested and convicted, so the evidence would not establish a pattern of fabrication. Defense counsel responded the trier of fact should be presented with evidence as to whether the accusation against the stepfather was true. The trial court sustained the prosecution’s relevancy objection.

The trial court did not commit error under state evidentiary law. “Onlyrelevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. (Evid.Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]” (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) The abuse of discretion standard of review applies to relevancy determinations made by the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 90; People v. Rowland (1992) 4 Cal.4th 238, 264.)

Evidence that Audrey reported being molested by her stepfather, in addition to her report of defendant’s molestation, had no tendency to prove or disprove any disputed fact of consequence under the theory argued by defendant at trial and the new theory he argues on appeal. At trial, defendant argued the jury should decide if the allegations against the stepfather were true. Whether those allegations were true or not would not tend to establish if Audrey had been molested by defendant, which was testified to by Audrey and witnessed by Emily. Moreover, as the trial court noted, the stepfather pled guilty to his molestation charge and was sentenced, leaving nothing for defendant’s jury to decide. Defendant’s appellate argument—the evidence of the accusation was admissible whether or not it was true as it may have explained why Audrey mistakenly believed defendant had molested her—does not withstand scrutiny. There is no logical reason to believe the stepfather’s molestation of Audrey could have caused her to be mistaken about defendant placing his hand under her pajama bottoms as she lay in bed.

Defendant’s constitutional argument is also unmeritorious. In Chambers v. Mississippi (1973) 410 U.S. 284, 297-298, 302-303, the Supreme Court held that exclusion of defense evidence of a witness’s out-of-court confessions under Mississippi law as hearsay, combined with the inability of a defendant to cross-examine the witness regarding his prior confession when the witness denied complicity on the stand, violated due process by depriving the defendant of the right to present a defense. However, “the due process clause does not entirely strip a trial court of its power to exclude evidence on grounds of irrelevance or potential confusion, and the rulings here did not, in our view, offend due process. (See People v. Babbitt (1988) 45 Cal.3d 660, 684-685.)” (People v. Roberts (1992) 2 Cal.4th 271, 300-301.) There is nothing in the reasoning of Chambers that applies to this case. Exclusion of evidence pertaining to the stepfather’s molestation of Audrey in no way deprived defendant of his ability to defend against his own molestation charge, or to cross-examine her and Emily about their observations.

Exclusion of Cross-examination on Why Emily Reported the Molestation to the Police

During examination of Emily, it was established that she waited up to one week before reporting her observations of defendant’s molestation of Audrey to the police. Emily testified she was prompted to call the police because defendant kept accusing Audrey’s stepfather of molesting her, and she was afraid because defendant gets mad easily. At a bench conference outside the presence of the jury, defense counsel argued that Emily’s testimony “opens the door to my asking Emily -- first of all, about whether or not Audrey said anything to precipitate her call to the police, and second of all, . . . because she has testified . . . that the defendant was making accusations; second of all, to delve into the subject matter of who was being accused by Audrey at the time she talked to her grandmother on June 13th and the grandmother Emily called the police.” Counsel wanted to ask if Audrey had made an allegation that she was molested by defendant and her stepfather. The prosecutor argued that all the evidence showed was defendant had made an accusation and was getting angrier, but there was no evidence before the jury of another accusation by Audrey. The trial court agreed that without evidence of multiple accusations by Audrey, the evidence was irrelevant.

Applying the deferential abuse of discretion standard of review, we hold there was no error in excluding the evidence. As discussed above, the evidence of Audrey’s molestation by her stepfather was properly excluded by the trial court. The jury was aware that Emily had delayed in reporting the molestation by defendant to the police for up to one week, and it could consider that fact to the extent it reflected on her credibility on the subject of whether she actually saw her granddaughter molested. The trial court was not required to allow in evidence of the molestation by the stepfather through the back door as a result of this examination.

Competency of Counsel

Defendant argues trial counsel was constitutionally inadequate due to his failure to move for a mistrial or to strike an answer given by Jennifer on cross-examination, which indicated defendant had also molested his own sisters. As the appellate record neither demonstrates inadequate performance nor prejudice, we reject the contention.

The trial court ruled that evidence of defendant’s molestations of two nieces, Jennifer and Jessica, was admissible under Evidence Code section 1108 to show defendant’s disposition to commit such offenses. Jennifer testified to being molested for years by defendant. She reported the molestations to her grandmother, who did nothing in response. She also told her mother a few times, but she also did nothing. The following is the pertinent testimony:

“Q Okay. [¶] How many times did you tell your mother Clara what had happened?

“A I just told her maybe three or four times, but she knew. She knew.

“Q All right. [¶] But she knew because you told her?

“A No. She -- she knew how he was.

“Q Okay.

“A They all knew how he was.

“Q Did they see something?

“A I thought I wasn’t supposed -- he’d done it to his own sisters. Own sisters.

“Q Well, all right. [¶] Let’s talk about what you’re saying he did to you. All

right? [¶] When you told your mother, she didn’t do anything.

“A No.”

“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland); Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)

“The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (In re Clark (1993) 5 Cal.4th 750, 766.)

Defendant’s argument fails under the performance prong of Strickland, as “the appellate record does not eliminate the possibility that counsel’s omission was tactical.” (People v. Montiel (1993) 5 Cal.4th 877, 914.) Counsel may well have concluded there was no point in highlighting Jennifer’s claim by a motion to strike, and that a better tactic was to simply refocus Jennifer on the allegation that she had been molested. Counsel could also reasonably conclude that a mistrial was unlikely to be granted. “‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, it would be a rare case in which the merits of a mistrial motion were so clear that counsel’s failure to make the motion would amount to ineffective assistance.’ (People v. Haskett (1982) 30 Cal.3d 841, 854.)” (People v. Jennings (1991) 53 Cal.3d 334, 380; see also People v. Price (1991) 1 Cal.4th 324, 428 [nonresponsive reference to polygraph by witness did not warrant mistrial].)

The argument also fails under the prejudice prong of Strickland. In our view, there is no reasonable probability that defendant would have obtained a more favorable result had defense counsel moved for a mistrial or to strike the answer, nor was the one answer so egregious as to undermine confidence in the outcome of trial. Both Audrey and Emily testified to defendant’s molestation of Audrey. No contradictory evidence was presented by the defense. Although minor inconsistencies are common in all cases, the evidence against defendant was strong, consistent, and convincing. Jennifer’s testimony as to defendant’s molestation of her and Jessica strongly corroborated Audrey and Emily, as defendant’s disposition to commit such offenses was established. Prejudice, as defined in Strickland, has not been established.

Failure to Advise on Constitutional Rights Before Accepting Admissions

Defendant’s final contention is that the trial court committed prejudicial error by accepting his admission to prior conviction allegations without ensuring that defendant understood and voluntarily relinquished his privilege against self-incrimination and the right to confront and cross-examine witnesses. Defendant argues the error was prejudicial because there were evidentiary issues regarding the nature of the prior convictions. Although defendant argues otherwise, this issue is controlled by People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).

Defendant is correct that the trial court committed error by failing to advise defendant, and obtain a waiver, of the privilege against self-incrimination and the right to confront and cross-examine witnesses before accepting defendant’s admission to the truth of the prior conviction allegations. “Thirty years ago this court held that before accepting a criminal defendant’s admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. (In re Yurko (1974) 10 Cal.3d 857, 863.) Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179 (Howard); North Carolina v. Alford (1970) 400 U.S. 25, 31.)” (Mosby, supra, 33 Cal.4th at p. 356.)

In Mosby, the court addressed the following issue: “When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, can that admission be voluntary and intelligent even though the defendant was not told of, and thus did not expressly waive, the concomitant rights to remain silent and to confront adverse witnesses? The answer is ‘yes,’ if the totality of circumstances surrounding the admission supports such a conclusion.” (Mosby, supra, 33 Cal.4th at p. 356.)

After the jury indicated it had reached a verdict in Mosby, the defendant waived his right to a jury trial on a prior conviction allegation. Without being advised on his privilege against self-incrimination or his right to confront and cross-examine witnesses, the defendant admitted the prior conviction allegation was true. (Mosby, supra, 33 Cal.4th at pp. 357-358.)

Mosby holds that the focus is not on whether the defendant was expressly advised of, and waived, his constitutional rights before admitting a prior conviction. Instead, the apt inquiry is “whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.” (Mosby, supra, 33 Cal.4th at p. 361.) As a result, “if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances.” (Ibid.)

In finding Mosby’s admission intelligent and voluntary, the court focused on the fact Mosby “had just undergone a jury trial at which he did not testify,” so he had exercised his right to remain silent at trial. In addition, Mosby had, “through counsel, confronted witnesses at that immediately concluded trial,” so he “understood that at a trial he had the right of confrontation.” (Mosby, supra, 33 Cal.4th at p. 364.) Under the totality of the circumstances, Mosby “voluntarily and intelligently admitted his prior conviction despite being advised of and having waived only his right to jury trial.” (Id. at p. 365.)

Mosby is controlling here. Defendant did expressly waive his right to a jury trial on the prior conviction allegations. Although he did not expressly waive his privilege against self-incrimination or his right to confront and cross-examine witnesses as to the allegations, he had a trial in which he exercised each of those rights. Under the totality of the circumstances, we hold defendant’s admissions were voluntarily and intelligently made.

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P. J. ARMSTRONG, J.


Summaries of

People v. Williams

California Court of Appeals, Second District, Fifth Division
Mar 26, 2008
No. B200950 (Cal. Ct. App. Mar. 26, 2008)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN WILLIAMS, Defendant and…

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

Date published: Mar 26, 2008

Citations

No. B200950 (Cal. Ct. App. Mar. 26, 2008)