P. v. Cannon

Filed 8/7/09 P. v. Cannon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

In June 2008, defendant Demar Winston Cannon[1] was convicted after jury trial of subornation of perjury by declaration (Pen. Code, 127).[2] The jury found that defendant had willfully procured F., who was almost 13 years old at the time, to commit perjury by making a false statement in a declaration concerning whether she had been molested by Brian Allen. The trial court sentenced defendant to three years in prison.

As background, defendants father used to be married to the mother of Allen. Allen is married to the mother of F. In a criminal trial against Allen in 2005, F. testified about incidents during which Allen molested her. Allen was convicted of lewd and lascivious acts on F. and sentenced to 15 years in prison. Defendant had contact with F. after Allens trial, and on June 30, 2006, F. signed a declaration under penalty of perjury stating that Allen was innocent, her testimony came about because of pressure from her grandmother, Allen never molested her, and the charges against him were false. Allens attorney thereafter filed F.s declaration in connection with habeas proceedings pertaining to Allen, but Allen ultimately abandoned his attempt to seek habeas relief.

At defendants subsequent jury trial in June 2008, F. testified that her statements in the June 30, 2006 declaration were false and that defendant told her to make some of the statements.

On appeal, defendant contends that (1) his trial counsel rendered ineffective assistance by failing to request a limiting instruction concerning Allens conviction for lewd and lascivious acts on F., (2) the trial court prejudicially erred by allowing the prosecution to refer to F. as a victim with regard to Allens case, and (3) the court prejudicially erred when instructing the jury about subornation of perjury by omitting an element of the crime.

For reasons that we will explain, we determine that defendants contentions are without merit. Therefore, after correcting a clerical error, we will affirm the judgment as modified.[3]

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 14, 2008, defendant was charged by information with subornation of perjury by declaration ( 127). The information alleged that defendant procured F. to commit perjury by making a declaration, on June 30, 2006, containing the following statements that she knew to be false: that Brian Allen was innocent; the subsequent testimony came about because of pressure from [her] grandmother; Brian Allen never molested [her]; the charges against him were false[.]

Defendants Pretrial Motion

On April 22, 2008, defendant filed a pretrial motion seeking to preclude the prosecution from referring to F. as the victim. On June 17, 2008, the trial court ruled that F. could be referred to as a victim with regard to the prior case against Allen, but that she should be referred to as a witness with regard to defendants case.

The Prosecutions Case

The jury trial began in June 2008. At the time of trial, F. was almost 15 years old and living with her paternal grandmother (grandmother). Grandmother obtained legal custody of F. when F. was a young child.

F.s mother (mother) started dating Allen when F. was approximately six years old, and she eventually married him. F. periodically visited mother and Allen. Mother and Allen had one child together, S., in 2004.

Defendant was sometimes present at mother and Allens residence. Defendant was introduced to F. as Allens brother. She referred to defendant as uncle.

According to F., Allen molested her. He would rub on her with his penis. Before her 10th birthday, he tried to put his penis in her mouth. Sometime after the incident, F., who was at mothers house, told grandmother by telephone what had happened. Grandmother asked F. whether she had told mother. F. did not want to tell mother and told grandmother to do it.

Grandmother spoke with mother by telephone. Grandmother wanted to pick up F., but F. wanted to be with mother. Grandmother told mother to leave the home with F., and mother said she would.

After this conversation, however, mother called Allen and told him to come home. Mother made F. and Allen sit in the room and talk about it and stated that it was between them. Allen told F. that it was an accident and to convince grandmother that he didnt do it. Mother also wanted F. to convince everybody that he didnt do it.

F. later disclosed to grandmother that mother and Allen wanted her to convince grandmother that it didnt happen. At some point, grandmother learned from F. that there had been more than one incident involving Allen. Grandmother did not try to convince F. that more had happened to her than what she had disclosed.

Sometime after F. returned to grandmothers home, F. talked to law enforcement about Allens conduct. F. testified that she did not talk to law enforcement immediately after returning to grandmothers home, because she did not want mother to be mad at her. According to grandmother, F. stated that mother had said that she (mother) would not have anywhere to live if F. reported Allens conduct.

F. eventually told defendant what Allen had done to her. Defendant stated that he believed F. Most of mothers family, however, didnt really want to believe what Allen had done to F. They told F. that she was lying, so F. didnt really talk to them much about it.

Criminal charges were brought against Allen based on his conduct with F. and with another female. At Allens trial, a third female also testified about Allens conduct. During Allens trial, F. testified about the incidents where . . . Allen molested her. She also testified that mother and mothers family members did not believe her, or did not want to believe her. At defendants trial, F. testified that she told the truth at Allens trial. Allens defense at his own trial was that any touching was accidental and F. had been prompted to exaggerate the claims of touching by her grandmother and others.

At defendants trial, the parties stipulated to and the court took judicial notice of Allens conviction on December 2005 for two counts of lewd and lascivious acts on F., a minor under the age of 14, and Allens 15 year sentence.

Before Allens trial, F. did not have much contact with mother. Mother told F. that she did not want F. to testify against Allen. During the trial, neither mother nor her sister (F.s maternal aunt) supported F. F.s maternal aunt told F. that it was her fault she could not be with mother because she said Allen molested her. After Allens trial, F. believed that mother did not talk to her a lot because mother was mad at her. According to grandmother, mother blamed F. for what had happened to Allen.

Between the time F. reported Allens conduct to grandmother and the time F. testified at Allens trial, grandmother did not pressure F. to lie. F. also denied that grandmother told her that she needed to make up what Allen did because grandmother doesnt like black people. After Allens trial ended, F. was still living with grandmother. F. acknowledged that she went to Cabo San Lucas with grandmother after Allens trial, but denied that grandmother had bribed her with the trip so that she would testify that Allen molested her.

In mid-2006, at the end of seventh grade, F. ran away from grandmothers because she wanted to be with mother. Mother, F., and F.s half-brother, S., stayed with defendant and his family for approximately two months.

While living at defendants house, mother received numerous calls from Allen, who was in prison. Mother and defendant talked to F. about getting Allen out of prison. They told F. that they did not think Allen deserve[d] that long in prison. They also said that if F. didnt tell them that he didnt molest her, then she wouldnt be able to be with [mother] legally and they would always be on the run. In addition, they told F. that she should meet with Allens attorney, David Martin, and [l]ie and say that [Allen] didnt molest her. In particular, they told her to tell Martin that grandmother pressured [her] into . . . saying that he molested [her], because [grandmother] doesnt like black people and if [she] didnt tell . . . the police that [Allen] molested [her], . . . [grandmother] would be really angry and hit [her] and stuff like that.

None of this was the truth. F. agreed, however, to tell Martin these things because mother told her that if she didnt, [she] wouldnt be able to be with mother. Further, F. felt kind of bad when she was told that Allen didnt deserve this long in prison. She also felt guilt when mother and defendant told her that S., her half-brother, would grow up and not have a dad and his dad might die in prison and stuff like that.

Defendant contacted Martin by telephone on June 30, 2006. Martin was representing Allen in connection with Allens appeal, but he had not yet received the file regarding Allens case. Defendant identified himself to Martin as Allens brother, although he later clarified that he was not a blood brother. Defendant told Martin that F. had stated that the conduct with Allen had never occurred.

Later that same day, defendant contacted Martin a second time by telephone, and Martin talked to F. F. was almost 13 years old at the time. F. basically told [Martin] that [they] needed to talk, because [she] lied about [Allen] molesting her. At defendants trial, F. testified that mother and defendant had told her to say this to Martin. F. testified that she did not tell anyone, other than Martin, that Allen did not molest her.

Based on his telephone conversation with F., Martin prepared a declaration for F. to sign and drove to defendants house on June 30, 2006. Before Martin arrived, mother again suggested to F. that she lie to him. Mother left upon Martins arrival.

Martin wanted to interview F. in private, so defendant went upstairs while Martin talked to F. in the kitchen. The declaration prepared by Martin reflected all the things that F. and Martin had talked about. Before F. signed the declaration, Martin told her to look at it to make sure that everything was accurate. He also explained what it meant to sign the document under penalty of perjury.

At defendants trial, F. identified the statements in the June 30, 2006 declaration that were lies. For example, F. stated in the declaration that Allen was innocent. This was a lie that mother and defendant had persuaded F. to say. The statement that she complained to authorities and testified against defendant because she was pressured by grandmother also was not true. Mother and defendant had told her to blame grandmother and pressured her into making this statement. In the declaration, F. stated that in 2002, when she was visiting Allen, he picked her up to carry her and she looked down and saw his thing through the opening in his pajamas. This, however, wasnt really what happened. Although she occasionally did see Allens penis through the opening of his pajamas, during this particular incident she was lying on her mothers bed when Allen took his penis out and rubbed it on her mouth.

There were other lies in the declaration, including that F. told grandmother that she saw Allens penis when he picked her up and carried her, that grandmother became very upset and told her that this is what black men do to white girls, that grandmother kept insisting that other things must have happened and kept badgering F. about them, and that grandmother frequently hits her and she was very afraid of grandmother. F. initially testified that mother told her to make the comment about black men and white girls. She later acknowledged that at defendants preliminary hearing, she testified that defendant had influenced her to make this comment. F. subsequently clarified at defendants trial that both mother and defendant influenced her to make this comment. F. testified that grandmother had never used any racial insults regarding African Americans. Mother and defendant told her to make the comment about grandmother badgering her. Further, mother told F. to say that she was frequently hit by grandmother and that she was afraid of grandmother. F. testified that grandmother only hit her once, after F. repeatedly lied about smoking, and she was not afraid of grandmother.

F. stated in the declaration that due to grandmothers constant insistence and her fear of grandmother, she agreed to file a complaint with authorities and testify at trial against Allen. F. testified that mother and defendant had pressured her to say these things, which were not true. She had testified against Allen because he had molested her, not because she was scared of grandmother.

Other lies in the declaration were that Allen never molested her and that the charges against him were false.

After F. signed the declaration, Martin impress[ed] upon her that signing the declaration doesnt mean everythings over with. He explained to F. that she would have to go back to court and testify as to what she stated in the declaration. Martin recalled F. stating either during this meeting or at a subsequent meeting that she could not testify to this if [she is] staying at [her] grandmothers. At the time, Martin interpreted F. to be saying that the statements in the declaration were true. At defendants trial, however, Martin acknowledged that F. could have meant that the statements in the declaration were false and that her grandmother would not let her lie on the witness stand. Indeed, at defendants trial, F. stated that she told Martin that she wouldnt be able to say the statements in the declaration if she was living with her grandmother. F. explained that the declaration contained lies and if she had been living with her grandmother, her grandmother would not have let her lie.

F. testified that when she signed the document, she knew she was signing a lie and that it was going to be filed and hopefully get [Allen] out of jail. She signed the document for [mother], because [she] wanted to be with mother. F. testified that she was ashamed for signing the declaration because she made up a whole bunch of lies about [her] grandmother that are not true. She told the lies because she wanted to be with [her] mom. She felt a lot of pressure from [her] mom and defendant, but most of the pressure was just from [her] mom because thats who [she] wanted to live with. Defendant knew, however, that she really wanted to live with [her] mom.

Mother was really happy after F. signed the declaration.

Neither F. nor Martin told grandmother about the declaration before F. signed it. Grandmother did not see the declaration until defendants trial.

On July 25, 2006, Martin met with F. a second time at defendants house. By this time, Martin had reviewed the trial record and police reports regarding Allen. Martin recorded this second meeting with F. The audio recording was played for the jury at defendants trial, and the jury received a transcript of the recording.

During this second meeting, Martin asked F. questions about Allens conduct and about her testimony from Allens trial. F. told Martin that she was in her mothers bed when she woke up and saw defendants penis while he was standing. Defendants penis did not touch her, and he continued walking to the bathroom. She called grandmother and told her what she saw. As a result of this and subsequent conversations with grandmother, F. started believing that Allen had done stuff to her. F. eventually realized that it was a lie, but she did not want to say anything because she was scared of grandmother. When grandmother talked about Allen touching F., grandmother was angry. F. was scared because grandmother would hit her or would send her to her fathers where he would hit her. F. was afraid that if she did not lie, she would get in trouble. Grandmother got mad at F. when F. denied that certain things had happened. Grandmother pressured her to talk to the police, and F. started making things up. Grandmother told the police that according to F., mother and Allen were telling F. to convince grandmother that the molestation did not happen. This was not true, but when the police questioned F., she said that mother and Allen were saying these things. F. did it to keep grandmother happy. F. did not remember a lot of her testimony from Allens trial because she made it up. When Martin asked F. about her testimony at Allens trial, such as Allen rubbing his penis on her, F. indicated that it did not happen. She felt really bad about her testimony because it was a lie and it caused Allen to be in prison for a long time for something he did not do. Martin testified that F. seemed quite sincere during this interview on July 25, 2006.

During defendants first telephone conversation with Martin in June 2006, defendant told Martin that F. had run away from her grandmothers and that she was staying at a friends. Defendant did not disclose that F. was living with him at the time. Martin wanted F.s living situation to be legal and was also concerned that if she went back to her grandmothers, she would perjure herself again on an innocent client. By the time of Martins second visit with F. in July 2006, Martin knew that F. was not living with a friend and was staying at defendants house. Martin also knew that F. could not stay with her mother. Martin had several conversations with defendant about F.s living situation. He also had several conversations with F.s maternal grandparents and tried to convince them to take in F. According to Martin, F. stated that she wanted to live with an aunt and never told him that she wanted to live with her mother.

In August 2006, within one week after Martins second visit, mother, F., and F.s half-brother, S., left defendants house and stayed with various people in another city.

F. then stayed briefly with her maternal grandparents. Although her maternal grandparents were nice to her, F. ran away because she wanted to be with mother. F. stayed with mother until the police returned F. to grandmothers home.

In November 2006, F. ran away from grandmothers again, and this time she went with mother to Georgia.

In December 2006, Martin filed a habeas petition on behalf of Allen. The declaration that F. had signed in June 2006 was filed in connection with the habeas proceedings.

In August 2007, after mother went to California and left F. in Georgia, F. returned to grandmothers home.

During the period of time after F. moved out of defendants house and while she was in Georgia, F. received telephone calls from defendant. He would tell her that Martin, Allens lawyer, called or stuff like that. Defendant wanted her to testify in Allens case about the same things that she had told Martin. F. told defendant that she was nervous about lying and that she didnt want to. When asked what defendant said in response, F. testified: he said that if I do it, then that will be good; but if I dont do it -- he also believes me and stuff -- but I feel bad because he talked about my [half-brother] not having a dad. F. kind of felt like defendant was guilting her into testifying.

When F. returned to grandmothers home in August 2007, she continued to receive telephone calls from defendant. Defendant told F. that the court date was coming up soon and wanted to know whether she was going to court and what she was going to do.

At defendants trial, the parties stipulated that Allens appeal was denied by the Sixth District Court of Appeal on August 28, 2007.

On August 28, 2007, the same appellate court issued an order to show cause regarding Allens habeas petition. At defendants trial, Allens attorney, Martin, explained that after an order to show cause is issued, the matter is returned to superior court for a hearing and F. would have to testify at such a hearing. Martin had several conversations with defendant about whether F. would show up in court for the hearing and what she would testify to if she did appear. Martin believed that if F. was living at grandmothers, she would not testify favorably for Allen.

In approximately August 2007, F. talked to Sam Liccardo, who was the prosecutor at Allens trial.[4] Liccardo testified that F. told him that she had been staying with her mother and a male relative of Allen. Her mother and the male had persuaded her to recant her testimony and to say that she made it all up. One of them had arranged for an attorney to take her statement. As to why F. went along with the persuasion of her mom and the male, Liccardo believed it was related to her desire to be with her mom. F. had been told by mother that F. could not stay with her unless she told the authorities that this was all a lie. F. also mentioned to Liccardo that her half-brother would not have a father to grow up with if she did not recant. F. indicated to Liccardo that she would have to testify and she did not want to lie in court.

F. subsequently disclosed to grandmother that she had lied and had told a lawyer that Allen did not molest her. Grandmother testified that she never told F. to make up a molestation claim against Allen, and she never pressured F. into believing that she was molested by Allen. She also did not scare or threaten to hit F. unless she said she was molested by Allen. Further, when F. disclosed to grandmother that she had been molested, grandmother did not tell F. that this is what black men do to white girls.

After Liccardo, the former prosecutor, talked to F., he called the district attorneys office and explained the circumstances. On October 2, 2007, F. was interviewed by Christina Gunter, a criminal investigator for the district attorneys office. Gunter testified that during this interview, F. stated that she had testified truthfully in Allens trial and that the contents of the declaration she signed with Martin were false. F. also described what defendant said to convince her to recant with Martin and how defendant would coach and suggest things to her regarding what she could say to Martin.

Gunter had F. talk to defendant by telephone. The conversation was recorded and took place over two calls. The recorded calls were played for the jury at trial, and the jury received transcripts of the calls.

During the first call, defendant stated to F. that he had been told that Allen would get a new trial if F. went to court and indicated that what she said was true. He had also been assured that neither F. nor her grandmother would get in trouble. Defendant told F. that whatever she decides, he would go for it because he loves her. However, he wanted her to understand that she had a half-brother who had no father right now. He asked F. how her half-brother, when he got older, would feel about his father being in jail for 15 years. Defendant stated: He needs a father. Defendant also told F. that if Allen got out, he would talk to Allen and tell him that he needs help. Defendant told F. that she also should tell Allen that he needs help, that he did that to her, and that she only got [him] off because she wanted to see her half-brother with his father. Defendant stated that Allen had been in there four years now and asked F. whether she knew that Allen had been in three fights already. When F. referred to what Allen did to her and stated that she did not want to lie about her grandmother and everything, defendant responded that he would not dispute what she said had occurred. He reiterated that Allen had been there four years now and reminded F. that when he previously asked her whether 15 years is what [Allen] deserves, she had responded no. Defendant eventually ended the first call after telling F. he would call her right back.

During the second call, defendant suggested that F. could say that she had lied about Allen and that she had put the blame on her grandmother for various reasons even though her grandmother really didnt have too much to do with it. When F. asked defendant whether he believed that Allen really did that to her, he responded, Yes. Defendant explained that his daughter, C., had indicated that something had happened between her (C.) and Allen. C. believed that Allens behavior was due to drinking and/or sleepwalking. Although C. did not like what Allen had done to her, she believed that Allen needed help and did not deserve to go to jail.

Defendant told F. to decide what it is [she] want[s] to do. He told her that he was not gonna . . . not love [her] for whatever choices [she] make[s]. He stated that it boils down to, does he deserve 15 years . . . for that? He then asked whether Allen deserve[s] 15 years . . . or his life possibly taken in jail[.]

Defendant later asked F. whether Allen made one mistake with her. F. clarified that it occurred several times. Defendant suggested that she had made mistakes, too, such as running away and smoking cigarettes, but she was still a good person. He stated that no one is perfect, people make bad choices, and we have to ask ourselves whether they deserve what has happened to them, or do they need help? He indicated that the decisions that F. made may have hurt her grandmother, but she did not deserve to be locked up and it did not change the fact that she was a good girl. Defendant also suggested that society was quick to lock up people when they did not deserve it and just needed help. Defendant acknowledged that he was angry at Allen for what Allen had done to C. and to F., but he also believed that Allen was a good and generous person, that he needed help for his problem, and that he did not deserve to be locked up for 15 years.

F. asked defendant whether it was the right thing for her to lie to the attorney at his house. She could have simply told the attorney that Allen did not deserve 15 years. She asked defendant, do you think it was right for me to lie? Defendant answered no, but also told her that the D.A.s lie, the judges lie, the police lie, that [s]ometimes you have to do what you have to do, and that it may have to be a lie in order to make something happen. He asked F. whether she would lie if it would prevent something from happening to S., her half-brother. F. acknowledged that she would but contended thats a different case, though. Defendant responded that sometimes you need to lie. F. indicated that she was talking about a specific situation. Defendant told her that she had to weigh it out. As defendant began discussing the specific situation involving F. and Allen, F. ended the call.

F. testified that defendants statement during the telephone call, that he wanted F. to understand that her half-brother had no father right now, was the type of thing that he would say to her before she signed the declaration for the attorney, Martin.

In October or December 2007, defendant told Martin that he thought a conversation had been taped. Martin eventually received copies of the taped calls between F. and defendant. Martin testified that [t]he elements on the tapes came as a surprise to him and that the taped calls killed Allens case. Allen eventually abandoned the habeas petition. According to Martin, F. was at grandmothers at the time. Martin testified that he never had any information that defendant induced F. to make false statements to him, and that he never would have filed the habeas petition if he had any legitimate suspicions in that regard.

Carl Lewis, a senior criminal investigator with the district attorneys office, testified as an expert about child sexual abuse accommodation syndrome (CSAAS). Lewis explained that CSAAS describes how children can present or appear in ways that are unexpected by adults when theres an allegation of child sexual abuse. Lewis stated that CSAAS is not a diagnostic tool and is only intended to . . . remind us . . . to look at the whole picture without making a judgment based on our preconceived ideas of what we think the child sexual abuse victim would . . . look or act like.

According to Lewis, CSAAS has five basic categories, although not all five may be present in every case of child sexual abuse. First, secrecy reflects the fact that the sexual abuse usually occurs when the offender is somehow isolated with the child, and the offender may reinforce the sense of secrecy either verbally or nonverbally. Second, helplessness arises from childrens dependence on adults. Third, entrapment refers to the burden of keeping the secret or enduring additional abuse by someone who is in a position of authority or who already has a relationship with the child, and accommodation reflects the fact children will try to find a way to put up with that condition and go about their lives being children. Fourth, the childs disclosure of the offense is usually delayed, the child might be conflicted about making the disclosure, and when the disclosure is finally made, its often done in a way that makes [the child] seem unbelievable. Fifth, a child may retract an earlier disclosure due to the great deal of chaos brought into the childs life as a result of the involvement of child protective services, law enforcement, the medical field, and the criminal justice system.

The Defense Case

Defendant was 46 years old at the time of his trial in June 2008. Defendant testified that his father used to be married to Allens mother, so Allen is an ex-stepbrother. He considers Allen to be his brother.

Defendant testified that Allens wife, who is F.s mother, called him in June 2006, to say that F. had been beat up and had run away from home. F. and mother subsequently lived with defendant until mid August 2006, although F. and mother were in and out as they sometimes stayed with other friends. Defendant thought F. needed to go to a shelter because F. led him to believe that her grandmother and father were very abusive towards her.

Defendant testified that prior to F. and mother moving in, mother called him and mentioned that F. wanted to talk to him. Within two days after they began staying with him in June 2006, mother again stated that F. had something to talk about with him. At this point, F. told defendant that Allen did not touch or molest her.

Defendant did not attend Allens trial. He only knew what happened to F. based on what F. told him. At some point, F. told him that mother and Allen were lying in bed when Allen got up, was going to the bathroom or something like that, and F. looked over and saw Allens thing hanging out of his pants. F. told him that before Allen got up, . . . it felt like he was rubbing her. Defendant did not believe that Allen deserve[d] fifteen years for that. Defendant testified that his discussion with F. did not lead him to believe that F. had been molested. F. never told him that Allens penis was pressed against her mouth.

Allen had previously written a letter to defendant with the name of his attorney and a phone number. Defendant called Allens appellate attorney, Martin, on June 30, 2006. That day, F. had told defendant that she wanted to right a wrong. When defendant called Martin, he told him that he had some information that might help Allens appeal. Defendant and Martin talked a second time by telephone and then Martin talked to F. Martin later came to defendants house to interview F.

Defendant testified that at the time, he did not know that F. signed a declaration dated June 30, 2006. He denied telling F. to make the statements in the declaration that Allen never molested her, that she testified the way she did because of pressure from her grandmother, that Allen was innocent, that the charges against Allen were false, and that she was very ashamed of what she had done. Defendant testified that he did not promise her anything if she signed it, he did not threaten her if she did not sign it, and he did not persuade her in any way.

Martin returned to defendants house on July 25, 2006, to interview F. Defendant testified that he was [r]oaming around the house but did not listen to the interview, which took place in the kitchen. He testified that he did not tell F. what to say during the interview, did not promise her anything if she testified or was interviewed, and did not threaten or influence her in any way. According to defendant, two days after the interview, F. told him that she felt good and that she was happy that she . . . finally got the truth out.

After F. and mother moved out of defendants house, defendant and F. remained in contact by telephone. Defendant would check and see how she was doing and let her know the status of Allens case. F. told defendant that she did not want to go through the whole court thing, the trial situation, because she had been through it before, and . . . she was afraid. F. was scared she might get in trouble because she had changed her story. She thought she was committing perjury and did not know what the district attorney or somebody was going to do to her. Defendant told her that he would get in touch with some lawyers . . . and ask questions for her. Defendant explained that he was basically the go-between between her, Martin, and whoever else.

At some point, defendant could tell that [F.] had been kind of swaying. F. had been saying that she had lied on her grandmother and she wanted to figure out a way of not getting her grandmother in trouble. According to defendant, F was asking [him] for help.

On October 2, 2007, when defendant spoke with F. by telephone, he did not know the calls were being recorded. Defendant explained that because F. kept fluctuating and flipping, his approach with her during the conversation was to tell her how he felt and to try to get her to tell [him] what the truth was. He also tried to act like [he] was still on her side and flush the truth out of her. Some of what he said to her was partially true and [s]ome of it was made up. He was playing cat and mouse with her because she had been also playing it with him. In this regard, defendant explained that based on his experience with F., she would lie, play games or switch her story and he felt like she was trying to do the same thing in this situation.

During the recorded conversation, F. asked defendant whether he believed that Allen really did that to her, and defendant responded, Yes. At trial, defendant explained that he believed Allen had a sleeping disorder. He knew Allen wasnt a bad person and wasnt somebody who did things on purpose. Defendant further testified: Ive seen [Allen] walk to a basket after drinking, after whatever he did, he would walk over to the clothes hamper and use the bathroom in the clothes hamper, I seen him do that. And then go from wherever he was sleeping at and then go lay down somewhere else and go to sleep.

During the recorded conversation, defendant told F. that sometimes you need to lie. When asked at trial how he felt during that conversation, defendant explained that he was very frustrated. [I]t got to the point where he sort of felt like he was done with this whole thing, because he had a lot of emotions going on . . . . He further stated that he had done time, and when he went to jail, he felt that he was put in there unfairly. He subsequently testified that it was a very emotional subject for him because he had been done incorrect. Defendant testified that his prior convictions occurred approximately 10 to 20 years ago and involved sales of rock cocaine, grand theft, and a misdemeanor relating to possession of a cloned cell phone. Defendant stated that his experience with the system color[ed] his view of those involved in the justice system of Santa Clara County. In talking about his past with F., defendant testified that his point with F. was that everyone makes mistakes, were all not perfect, we can change, and that society is quick to lock people up instead of looking for programs to help them.

During the recorded conversation, defendant told F. that his daughter had said that something happened to her and that Allen sleepwalks when he drinks. At trial, defendant explained that his daughter had told him that Allen had been drinking and, while they were asleep, Allen was pumping on her with his clothes on. Defendant understood his daughter to be saying that Allen was dry-humping her. When his daughter said Allens name, he appeared startled, like he woke up or something, and he said, oh, sorry. And he walked over and went back where he was originally sleeping and lay down and went to sleep. Defendant testified that Allen had done the same thing to him when he was younger.

Defendant acknowledged that he told F. during the recorded conversation that she could go to court and lie under oath. He explained at trial that he was speaking about F.s grandmother, and he needed to help F., who had told him many times that she did not want to get her grandmother in trouble and she was scared to go to court. Defendant testified that if he had known he was being taped, he would have told F. to tell the truth. He testified that prior to being taped, he had told F. many times that she needed to tell the truth. He denied telling F. on June 30th or July 25th to sign anything and lie.

In the recorded conversation, defendant referred to F.s half-brother being without a father. At trial, defendant explained that he previously made similar comments to F. in the context of telling her what would happen if she did not tell the truth and go to court for Allen.

Defendant told F. during the recorded conversation that he was pissed the fuck off at [Allen] for doing that to [his] daughter and pissed the fuck off at [Allen] for doing it to F. At trial, defendant denied believing at the time that Allen had rubbed his penis on F. Defendant understood that F. and Allen were in the same bed at the time. Defendant stated, however, that his own daughter could charge [him] for the same thing right now because [he lies] next to [his] daughter in bed, cuddle[s] up with [his] daughter, hes a man, and it hangs. Defendant subsequently stated that he was pissed off at Allen because Allen needs some help, and he did not know whether Allen needed jail time.

In the recorded conversation, shortly after F. asked whether it was alright to lie to the attorney, defendant told F. that the district attorneys, judges, and police lie. At trial, defendant explained that he had been feeling frustrated and disgusted with the way . . . the system is and his response at the time was just his opinion. He testified that he wasnt trying to force [F.] into doing anything.

Several of F.s maternal relatives testified at defendants trial. F.s maternal grandfather testified that F. had lived with him in September 2006. She had previously run away from grandmothers house and had been on the run for several months. He had heard that F. had been living with defendant. F.s maternal grandfather was told by Allens attorney, Martin, that F. did not want to go home because she was being abused. Martin asked whether he would take F. in, and he agreed. F. stayed at her maternal grandfathers house for six hours before running away. After F. had been at his house for approximately three hours, she told him that she was sorry she lied about Allen. When asked why, F. stated that grandmother promised to take her and a friend to Mexico if she lied. F. also stated that grandmother did not like black people. F. stated that she only said Allen molested her because grandmother told her to.

F.s maternal grandfather also testified about comments by other family members regarding what happened between F. and Allen, or relating to Allens case. F.s mother, who is one of his daughters, told him that she did not believe F. His other daughter, F.s maternal aunt, told him three or four times that F. said she was lying.

F.s maternal grandfather believed F. was a liar. For example, she lied to him about having grandmothers permission to leave when she actually ran away. She also lied about not making phone calls at his house. F.s maternal grandfather referred to her conduct as kids lies.

F.s maternal aunt testified that F. called her several times after Allens trial. F. told her that grandmother would get mad if F. called her, so F. called her secretly. F. stated that she was sorry that [Allen] never did that, but her grandma was telling her that she had to say that he did that to her. F. explained that Allen had picked her up and his pants fell down, but grandmother told her that she had to say . . . his penis was in [her] face. F. stated that grandmother wanted her to say this because grandmother was mad at her mom for leaving her father and . . . being with a nigger and that niggers usually do that to white girls. F.s maternal aunt testified that F. ran away from her maternal grandfathers house because she wanted to be with her boyfriend. F.s maternal aunt called the police and F. was returned to grandmothers.

F.s cousin, who is a few years older than F., is the daughter of F.s maternal aunt. F.s cousin testified that F. stated that grandmother used to beat her and left a welt from a belt on her butt. During Allens trial, F. stayed with grandmother. According to F.s cousin, F. stated that Allen didnt do it and that if F.s maternal aunt and cousin took her home with them during Allens trial, she would testify that he didnt do it.

F.s cousin testified that after Allens trial, she had conversations with F. about Allen, and specifically about whether Allen molested her. On one occasion, when F. messaged her over the internet, she asked F. why did she do it. F. responded that her grandmother made her. F.s cousin stated, so its not true, and F. replied, no, its not true. F.s cousin understood F. to be saying that Allen didnt do it. During a telephone conversation, F.s cousin asked F. whether she wish[ed she] never did that to Allen. F. responded, yeah, I wish Id never did but I cant do nothing about it now. F.s cousin further testified that F. told her plenty of times it wasnt true. F.s cousin interpreted this to mean that Allen did not molest her. F.s cousin testified that her mother, F.s maternal aunt, believed that Allen did not molest F.

The daughter of the ex-boyfriend of F.s maternal aunt testified that she asked F. sometime after Allens trial whether Allen had touched her in any way he shouldnt ha[ve]. F. said no. When asked why she would lie, F. giggled and changed the subject.

The Verdict and Sentencing

On June 27, 2008, the jury found defendant guilty of subornation of perjury by declaration. On September 26, 2008, the trial court denied probation and sentenced defendant to the midterm of three years. Defendant was granted a total of 147 days of custody credits. The court made a general order of restitution and ordered defendant to pay various fines and fees.

Defendant filed a timely notice of appeal on October 8, 2008.

III. DISCUSSION

Trial Counsels Failure to Request a Limiting Instruction

In the jurys presence, the prosecutor requested judicial notice of, and defense counsel stipulated to, Allens conviction on December 2005, for two counts of lewd and lascivious acts on F., a minor under the age of 14. The trial court stated it would accept that and find judicial notice on that. The court then stated to the jury: Folks, all that really means is instead of having to call additional witnesses to confirm the fact there was, in fact, a conviction in this case, both attorneys agree to that. As far youre concerned, just accept the fact there was a conviction for those two charges as proven conclusively.

On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to request a limiting instruction for the jury to consider Allens conviction only to the extent it provided a motive for [defendant] to cajole [F.] into recanting and not as proof in and of itself that [F.] was molested. Defendant observes that one of the elements of the crime of subornation of perjury is that the person who is the target of the defendants persuasion did in fact provide false information and thus committed perjury. Defendant argues that [a]lthough the parties stipulated that the jury in Brian Allens trial found him guilty of molesting [F.], the jury in [defendants] trial should not have been permitted to consider that fact as evidence that [F.] was in fact molested and thus lied when she signed the declaration. Defendant maintains that collateral estoppel did not apply in this case and due process forbids a jury from using a prior adjudication as proof that an essential element of the current charged offense has been satisfied . . . . Defendant argues that the jury could not be expected to know this, and that common sense suggests that a jury would likely be influenced by what a jury in another case determined. Defendant asserts: Since the Brian Allen case directly concerned the molestation while this case concerned subornation of perjury, the jurors in the Brian Allen case presumably were privy to much more detail surrounding the alleged molestation itself. As a result, it is likely the jurors in [defendants] trial would be influenced, if not completely deferential to their determination that [F.] was in fact molested. An instruction from the court, however, would have ensured that this did not happen.

In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsels performance was deficient because it fell below an objective standard of reasonableness [] . . . under prevailing professional norms. [Citations.] Unless a defendant establishes the contrary, we shall presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] If a defendant meets the burden of establishing that counsels performance was deficient, he or she also must show that counsels deficiencies resulted in prejudice, that is, a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 (Ledesma).)

In this case, a satisfactory explanation may exist for defense counsels failure to request a limiting instruction that Allens conviction was not proof in and of itself that [F.] was molested. Counsel may have reasonably determined that the trial courts instructions to the jury regarding subornation of perjury were sufficient. Before evidence was offered at trial and after the close of evidence, the trial court instructed the jury that to find defendant guilty of subornation of perjury, it had to determine, among other things, whether F. knew that certain statements in her June 30, 2006 declaration were false. The courts instruction to the jury during trial, to accept as conclusively proven the fact that Allen had a conviction (italics added) for two counts of lewd acts on F., did not establish whether F.s testimony during Allens trial was true and that her subsequent statements in the June 30, 2006 declaration, which essentially recanted her testimony from Allens trial, were false. Defense counsel may well have determined that it was better to keep references to the conviction in Allens case to a minimum, and instead attempt to focus the jury on F.s conduct and interactions with various individuals after Allens trial, which, according to the defense, showed that F. was not credible and that she had lied about being molested by Allen.

Even if we were to determine that defense counsels decision not to seek a limiting instruction was not a reasonable tactical decision, we would find no prejudice. First, as we have explained, the jury was instructed that it had to make a determination as to whether F. knew that certain statements in her June 30, 2006 declaration were false. None of the instructions to the jury suggested that by virtue of Allens conviction, it must be concluded that F. testified truthfully at Allens trial about being molested and that her subsequent June 30, 2006 declaration recanting her testimony in Allens case was therefore knowingly false. Second, much of the evidence at defendants trial was directed at F.s credibility and whether she had been molested by Allen, and the jury had the opportunity to evaluate F.s credibility. Third, both the prosecutor and defense counsel emphasized in argument that F.s credibility concerning whether Allen molested her was one of the key issues in the case, and they summarized the evidence presented at defendants trial in support of their positions.

In view of the courts instructions to the jury, the evidence presented at trial, and the arguments presented by the prosecutor and by defense counsel, we find it unlikely that the jury simply relied on Allens prior conviction as the basis for determining whether F. had been molested and whether her statements to the contrary in the June 30, 2006 declaration were false. The jury in defendants case had the opportunity to evaluate F.s credibility firsthand, as well as the credibility of the attorney Martin, who testified that F. seemed sincere when recanting her prior trial testimony, and the credibility of the defense witnesses who said that F. had admitted to lying about Allens conduct. If, after listening to all the evidence presented in defendants case, the jury found F. lacking in credibility as to what happened between her and Allen, we find it unlikely that the jury would have nevertheless been influenced, if not completely deferential to the determination in Allens case that F. was in fact molested by him, as argued by defendant on appeal.

We also reject defendants suggestion that the prosecutors comments that Allen had his day in court and was tried and convicted implied to the jury in defendants case that the Allen jurys verdict should be deemed conclusive as to the truth of the molestation accusations or that it had the effect of reinforcing any tendency on the part of the jurors in [defendants] case to give unnecessary weight to their predecessor jurors in Allens case. The context in which the prosecutor made these statements, combined with the prosecutors other statements during argument, clearly conveyed to the jury that it had to evaluate F.s credibility and, based on the testimony and other evidence presented in defendants case, it could conclude that F. was credible and had been molested.

Accordingly, we find that there is no reasonable probability that a result more favorable to defendant would have occurred but for counsels failure to request a limiting instruction regarding Allens conviction.

Prosecutors References to F. as Victim

On April 22, 2008, defendant filed a pretrial motion seeking to preclude the prosecution from referring to F. as the victim. Defendant asserted that whether F. was a victim in the case against Allen depended on whether her testimony at Allens trial was truthful. In the case against defendant for subornation of perjury, defendant argued that F. was not a victim and was a mere witness for the prosecution. Defendant asserted that [r]eferring to . . . a person as the victim violates the presumption of innocence afforded a defendant in a criminal case, particularly where such witness has recanted trial testimony.

On June 17, 2008, the trial court ruled that in view of Allens conviction, F. could be referred to as a victim with regard to Allens case. The court stated to defense counsel: Whether [F.] told the truth or not, I imagine you can argue, because a jury decided that the evidence was such that they were convinced beyond a reasonable doubt that Mr. Allen did it. The court pointed out that there is a jury instruction that explains that statements made by counsel are not evidence. With respect to defendants case, the court determined that F. was not a victim and that she should be referred to as a witness.

On appeal, defendant observes that the prosecutor referred to F. as a victim of molestation three times during opening statement. Defendant argues that the trial court effectively lessened the prosecutors burden of proof when it allowed the prosecution to refer to [F.] in this manner. He contends that whether F. was molested by Allen was a disputed factual issue. Defendant asserts that the term victim presupposes that a crime has occurred, that F. necessarily had been molested by Allen, that her declaration to the contrary was false, and that one of the elements of subornation of perjury was thereby satisfied. Defendant argues that the courts ruling infringed on his right to due process and trial by jury, and his conviction should be reversed unless the error is shown to be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Even if the matter is one of state law, defendant contends that it is reasonably probable that the result would have been different if the court had precluded the prosecution from referring to F. as a victim. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

In People v. Williams (1860) 17 Cal. 142 (Williams), in a prosecution for murder, the trial court referred to the deceased person as a victim when instructing the jury. (Id. at p. 146.) The California Supreme Court cautioned against use of that word: The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as a victim, the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. (Id. at p. 147.)

The Williams court was concerned with the trial courts use of the word victim. (Williams, supra, 17 Cal. at p. 147.) Defendant in this case, however, complains about the prosecutors use of that word.

This distinction was recognized in People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe). In Wolfe, the defendants contended that the prosecutor committed prejudicial misconduct by referring to a defendants knife as having been left in the victims back. (Id. at p. 666.) The defendants argued that it assume[d] the guilt of the defendant and relied on Williams, supra, 17 Cal. 142. (Wolfe, supra, 42 Cal.2d at p. 666.) The California Supreme Court determined that Williams was distinguishable. It explained that in the case before it, the expression did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty. (Ibid.)

Similarly, in People v. Sanchez (1989) 208 Cal.App.3d 721 (Sanchez), the defendant argued that his counsel rendered ineffective assistance by failing to object to the prosecutors references to the complaining witness as the victim. (Id. at p. 739.) The Court of Appeal determined that [t]he scattered references to victim made by the prosecutor, though possibly objectionable, did not deserve defense counsels interruption of the trial. (Id. at p. 740.)

In this case, unlike in Wolfe and Sanchez, defendant objected, by way of a pretrial motion, to the prosecutor referring to F. as a victim. Assuming without deciding that the trial courts ruling was erroneous insofar as it allowed the prosecutor to refer to F. as a victim in relation to Allens case, we believe that the error was harmless under any standard (see Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836).

Before the prosecutors opening statement, the trial court informed the jury that an opening statement is not evidence and that there is a jury instruction that would tell them that nothing that the attorneys say during this trial is evidence.

Thereafter, during opening statement, the prosecutor made three references to F. as