Filed 12/24/18 P. v. Haley CA3
NOT TO BE PUBLISHED
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Plaintiff and Respondent,
RYAN MATTHEW HALEY,
Defendant and Appellant.
(Super. Ct. No. 11F03371)
Defendant Ryan Matthew Haley sexually abused three boys, N.T., N.R., and N.B., over the span of several years. He was convicted by jury of 19 counts of committing a lewd or lascivious act on a child under the age of 14 years (Counts 1-11, involving N.T.; Counts 12-19, involving N.R.), and one count of committing a forcible lewd or lascivious act on a child under the age of 14 years (Count 20, involving N.B.). The jury also found defendant committed these offenses against two or more victims. Defendant was further convicted of possession of child pornography (Count 21), having entered a no contest plea with respect to that count prior to the presentation of the evidence at trial. The trial court sentenced defendant to state prison for an aggregate indeterminate term of 300 years to life consecutive to a determinate term of two years.
On appeal, defendant contends: (1) the trial court should not have allowed the prosecution to amend Counts 6, 8, and 10 to conform to proof because the conduct supporting these amended counts was not established during the preliminary hearing; and (2) defendant’s trial counsel provided constitutionally deficient assistance by: (A) failing to object when the prosecution used evidence not presented at the preliminary hearing to prove 13 of the counts charged against him at trial, and (B) failing to move to have certain nonresponsive testimony stricken from the record.
We affirm. The trial court did not abuse its discretion in allowing the prosecution to amend Counts 6, 8, and 10. These counts were sufficiently supported by evidence adduced at the preliminary hearing. So too were Counts 1, 2, 5, 7, 9, and 11. Because any objection to these counts on this basis would have been futile, trial counsel did not render constitutionally deficient assistance in failing to so object. And while Counts 13, 15, 17, and 19 were not supported by evidence adduced at the preliminary hearing, we conclude defense counsel’s failure to object to these counts was harmless. Finally, we also reject defendant’s remaining claim of ineffective assistance.
Sexual Abuse of N.T. (Counts 1-11)
Defendant began his sexual abuse of N.T. when the boy was 6 years old and defendant was 16 years old. They lived in the same neighborhood. N.T. frequently went over to defendant’s house because he was friends with defendant’s little brother. The abuse began when N.T. was over at the house and defendant told the boy to come into his room to play a video game. After N.T.’s character in the game died, defendant told him to take off his pants. The next thing the boy remembered was defendant staring at him for several minutes as he lay on defendant’s bed with his pants and underwear off. N.T. then put his pants back on and was allowed to continue playing the video game. Defendant’s conduct increased in seriousness from there and included, when N.T. was still six years old, “dry hump[ing]” the boy while the boy was unclothed and touching the boy’s penis.
The charged conduct spanned six years, from 1999 to 2005, when N.T. was between the ages of 8 and 13 years old. Defendant was between the ages of 18 and 23 years old. N.T. testified defendant touched his penis about 20 times when he was 8 years old, almost every weekend he went over to defendant’s house. More than half of those touchings involved defendant putting the boy’s penis in his mouth. The other touchings involved hand-to-penis contact. Defendant also showed N.T. pornography, taught him how to masturbate, continued to periodically “dry hump” him while the boy was unclothed, and further had N.T. touch defendant’s penis. Only one count of lewd or lascivious conduct (Count 1) was charged with respect to the foregoing conduct.
The sexual contact between defendant and N.T. happened more frequently when the boy was 9 years old, “maybe like 30, 40” times. Again, more than half of those touchings, “20 to 30,” involved defendant putting the boy’s penis in his mouth. When N.T. was 10 years old, defendant put the boy’s penis in his mouth between 5 and 10 times, each time on a separate occasion. He touched the boy’s penis with his hand with roughly the same frequency. Only two counts of lewd or lascivious conduct per year (Counts 2 through 5) were charged with respect to this conduct.
Defendant’s sexual abuse of N.T. continued between the ages of 11 and 13, but steadily declined in frequency and seriousness. When N.T. was 11 years old, defendant touched his penis about 5 times, but no longer orally copulated the boy. Defendant also continued to periodically “dry hump” him, but did so while the boy still had his clothes on. When N.T. was 12 years old, defendant touched his penis “three to five” times on separate days. Finally, when N.T. was 13 years old, defendant touched his penis twice on two separate days, but did so over the boy’s clothing. Two counts of lewd or lascivious conduct per year (Counts 6 through 11) were charged with respect to this conduct.
Sexual Abuse of N.R. (Counts 12-19)
Defendant began his sexual abuse of N.R. when the boy was 8 years old. He too lived in the neighborhood and was friends with defendant’s younger brother. Also like N.T., the abuse began when defendant brought him into his room to play a video game. As N.R. explained, it initially “seemed pretty cool” that he “got to play a new video game with his [friend’s] older brother.” However, while he played the game, defendant would “put on a movie, a dirty movie, and . . . [¶] . . . [¶] eventually [N.R.’s] pants would be down.” Defendant would then touch N.R.’s penis with his hands or mouth or both. N.R. estimated defendant touched his penis with his hands about 50 times and orally copulated him about 70 times when he was 8 years old, “any time that [he] was over there.”
The charged conduct spanned 4 years, from 1999 to 2003, when N.R. was between the ages of 9 and 12 years old. Defendant was between the ages of 18 and 21 years old. N.R. testified defendant engaged in the same conduct with about the same frequency when he was 9, 10, and 11 years old, i.e., touching the boy’s penis with his hand about 50 times and orally copulating him about 70 times each year. Only two counts of lewd or lascivious conduct per year (Counts 12 through 17) were charged with respect to this conduct. The sexual abuse decreased when N.R. moved out of the neighborhood at the age of 12 years, but did not cease entirely because, as the boy explained, “he was my . . . babysitter for awhile” and “whenever he would come over, that would happen.” N.R. testified defendant touched his penis with his hand more than two times and also orally copulated him more than two times when he was 12 years old. Two counts of lewd or lascivious conduct (Counts 18 and 19) were charged with respect to this conduct.
Forcible Sexual Assault of N.B. (Count 20)
Defendant sexually assaulted N.B. once when the boy was 8 years old. Defendant was about 20 years old. Like defendant’s other victims, N.B. lived in the neighborhood and was abused while playing a video game with defendant in his room. When defendant tried to take off N.B.’s pants, the boy told him to stop and tried to push him away. Overcoming N.B.’s resistance, defendant pulled his pants down to his knees, reached beneath his underwear, and touched the boy’s penis with his hand. Defendant also tried to put N.B.’s penis in his mouth, but the boy pushed his head away. Eventually, defendant stopped his sexual assault and N.B. pulled his pants up and left the room. One count of forcible lewd or lascivious conduct (Count 20) was charged with respect to this conduct.
The abuse came to light in 2011. Defendant was questioned by a detective on two occasions. During the first interview, the detective knew only about allegations made by N.T. When confronted about these allegations, defendant said, “he knew he had fucked up” and “was sorry.” He then provided some details about the abuse, specifically admitting he touched N.T.’s penis, had N.T. touch his penis, and would “dry hump” the boy. Defendant admitted he was sexually attracted to young boys. When asked whether he was a pedophile, defendant answered: “Yeah, I guess I am.” Defendant also consented to a search of his computer and admitted he had child pornography on the device.
The second interview was conducted about a week later. By this time, the detective was aware of similar allegations made by N.R. and N.B. When the detective asked defendant what happened with N.B., defendant answered: “Same -- same thing pretty much happened once.” The detective then asked defendant if there was anyone else. Defendant answered: “Yeah. The last one is uh I think his name is [N.R.] I think.” When asked what happened with N.B., defendant said: “Messing around uh jacking him off (unintelligible).” He denied orally copulating N.B., but admitted doing so to N.T., “but just once.” Turning to defendant’s abuse of N.R., the detective asked, “did you jack him off?” Defendant answered: “A little bit.” He also admitted orally copulating N.R., but again claimed it happened only “one time.” At some point, according to defendant, he “turned to the computer to keep from hurting other kids.”
After obtaining a search warrant, law enforcement authorities conducted a complete forensic examination of defendant’s computer and found several pornographic images depicting “young boys . . . in various states of undress, sometimes completely naked . . . engaged in oral copulation with adults or other boys or masturbation.” As mentioned, defendant entered a plea of no contest to possessing child pornography (Count 21).
Amendment of the Information
Defendant contends the trial court should not have allowed the prosecution to amend Counts 6, 8, and 10 to conform to proof because the conduct supporting these counts was not established during the preliminary hearing. We are not persuaded.
Counts 6, 8, and 10 initially charged three counts of lewd or lascivious conduct based on allegations of oral copulation between defendant and N.T. when the boy was 11, 12, and 13 years old, respectively. However, based on N.T.’s testimony that defendant no longer orally copulated him after he turned 11 years old, the prosecution moved to amend the information to allege as the basis of these counts of lewd or lascivious conduct “defendant dry humping the victim.”
Defense counsel objected on due process grounds, arguing the testimony at the preliminary hearing mentioned “dry humping” only once. Specifically, at the preliminary hearing, the detective who interviewed defendant testified defendant admitted he “ ‘jacked [N.T.] off and dry hu[mp]ed him’ ” when the boy was 7 or 8 years old. Defense counsel thus argued amending Counts 6, 8, and 10 to allege such conduct when N.T. was 11, 12, and 13 years old was not supported by the evidence at the preliminary hearing and he would have moved to set aside these counts had they been based on this alleged conduct from the outset. After some discussion between the trial court and the prosecutor, defense counsel again argued allowing the proposed amendment would violate due process because the preliminary hearing testimony provided defendant with “no notice” he would be defending against three counts of dry humping N.T. during the specific years alleged in Counts 6, 8, and 10. The trial court then asked counsel whether it would be appropriate to amend those counts to allege more generic conduct and deferred ruling on the matter until the following day.
The following morning, the prosecutor requested Counts 6, 8, and 10 be amended to allege lewd or lascivious conduct based on hand-to-penis contact. Defense counsel renewed the due process objection previously made. The trial court noted the objection and granted the motion.
As defendant correctly points out, an information may not be amended “so as to charge an offense not shown by the evidence taken at the preliminary examination.” (Pen. Code, § 1009.)
“Due process requires that ‘an accused be advised of the charges against him [or her] so that he [or she] has a reasonable opportunity to prepare and present his [or her] defense and not be taken by surprise by evidence offered at . . . trial.’ [Citation.] Thus, it is the rule that ‘a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.’ [Citations.]” (People v. Graff (2009) 170 Cal.App.4th 345, 360 (Graff ).) “ ‘[A]t a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.’ [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 317.) We review the trial court’s decision to allow amendment of the information for abuse of discretion. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
In Graff, supra, 170 Cal.App.4th 345, the Court of Appeal reversed the defendant’s convictions on two counts of committing a lewd or lascivious act on a child of 14 or 15 years in violation of section 288, subdivision (c), “because the jury was permitted to convict based on charges not established at the preliminary hearing.” (Id. at p. 349.) The defendant was initially charged with six such counts. At the preliminary hearing, the victim testified to five incidents of lewd conduct committed by the defendant, two of which involved defendant watching her masturbate. Because the victim was not certain whether the masturbation incidents occurred before or after she turned 16 years old, the magistrate dismissed the two counts that were based on these incidents. After the hearing, an information was filed charging the defendant with three counts of violating section 288, subdivision (c). (Id. at pp. 350-351.) At trial, the victim testified to the same five incidents of lewd conduct. She was allowed to testify concerning the masturbation incidents “as indicative of motive or intent” under Evidence Code section 1101. (Id. at p. 352.) This time, she testified she was 15 years old when the first masturbation incident occurred, but was unsure when the second incident occurred. (Id. at p. 354.) In the defense closing argument, defense counsel stated that there were “[n]o charge[s] concerning the masturbation episodes.” (Id. at p. 357.) In rebuttal, the prosecutor disagreed and argued the defendant could be convicted of “any lewd act that he committed with [the victim] while she was 14 or 15 years old,” including the masturbation incidents. (Id. at p. 358.) The jury convicted the defendant of two counts of violation of section 288, subdivision (c). (Id. at p. 360.)
The Court of Appeal reversed, holding the defendant’s “due process rights to notice of the charges against him were violated by the prosecution’s decision to go forward with charges not established at the preliminary hearing.” (Graff, supra, 170 Cal.App.4th at p. 360.) The court first explained the magistrate was correct in ruling “the prosecution failed to present evidence [at the preliminary hearing] that the masturbation incidents fell within the time frame necessary to establish a section 288, subdivision (c)(1), violation.” (Id. at p. 361.) The court then explained, “the prosecution did not seek, and the trial court did not permit, an amendment [of the information] at any time.” (Id. at p. 362.) In response to the Attorney General’s argument that “ ‘the trial court’s act of allowing the jury to convict [the defendant] on the basis of [the masturbation] incidents amounted to a constructive amendment’ ” of the information, the court explained such an amendment would not have been proper because “late amendments are not permitted where the defendant would be prejudiced. [The defendant] was prejudiced by the failure of the prosecution to make its theory clear prior to the last phase of closing argument. In cross-examining [the victim], defense counsel had no reason to pin down the dates of the masturbation incidents or to impeach [the victim] with her earlier testimony that she could not remember when either of the incidents occurred.” (Ibid.) The court further explained that, “even where the prosecution complies with the necessary procedures and no specific prejudice is shown, appellate courts are compelled to reverse convictions where substantial evidence was presented at trial that did not correspond to the charges established at the preliminary hearing.” (Ibid.)
Here, defendant argues we must reverse Counts 6, 8, and 10 because, while substantial evidence was presented at trial concerning the lewd conduct alleged in the amended counts, the only evidence presented at the preliminary hearing concerning such lewd conduct was the detective’s testimony that N.T. told him defendant “occasionally” touched his penis during a six-year period. Specifically, the detective testified N.T. told him defendant molested him on a weekly basis between the ages of 6 and 13 years old, “approximate[ly] a hundred times.” The majority of the time, according to the detective, N.T. said defendant would orally copulate him, but “[o]n occasion [N.T.] would have to fondle the defendant’s genitals.” As relevant to this specific contention, defendant was charged with 6 counts of lewd or lascivious conduct occurring during the span of 3 years, when N.T. was 11 years old (Counts 6 and 7), 12 years old (Counts 8 and 9), and 13 years old (Counts 10 and 11). After the amendment, each such count was based on hand-to-penis contact. We conclude the detective’s testimony was sufficient to place defendant on notice of these allegations. Indeed, if defendant molested N.T. on a weekly basis, as the boy stated to the detective, even if a majority of the conduct was oral copulation, as the boy also stated, we conclude the phrase, “[o]n occasion” with respect to hand-to-penis contact would have placed defendant on notice of at least two such touchings per year.
The trial court did not abuse its discretion in allowing the prosecution to amend Counts 6, 8, and 10 to allege hand-to-penis contact as opposed to oral copulation in order to conform these counts to the proof at trial.
Ineffective Assistance of Counsel
Defendant claims his trial counsel provided constitutionally deficient assistance by (A) failing to object when the prosecution used evidence not presented at the preliminary hearing to prove 13 of the counts charged against him at trial, and (B) failing to move to have certain nonresponsive testimony stricken from the record. We address and reject each assertion of ineffective assistance.
Failure to Object to Use of Evidence Not Presented at the Preliminary Hearing
In addition to claiming the trial court should not have allowed the prosecution to amend Counts 6, 8, and 10 to allege hand-to-penis contact with N.T., defendant also asserts we must reverse each count alleging such contact with that victim (Counts 1, 2, and 5 through 11) for lack of sufficient notice provided by the evidence at the preliminary hearing. Defendant further asserts a lack of notice with respect to Counts 13, 15, 17, and 19, alleging lewd or lascivious conduct with N.R. based on acts of oral copulation with that victim. However, because defendant did not object to the prosecutor’s use of evidence he claims was not presented at the preliminary hearing (except with respect to Counts 6, 8, and 10, discussed above), he acknowledges this argument with respect to the remaining counts is forfeited. (See People v. Burnett (1999) 71 Cal.App.4th 151, 179 (Burnett).) Accordingly, defendant argues his trial counsel rendered constitutionally deficient assistance by failing to so object.
1. Legal Principles
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him [or her] to ‘the reasonably competent assistance of an attorney acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his [or her] “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he [or she] must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland).)
2. Deficient Performance
Here, having already concluded the trial court did not abuse its discretion in allowing amendment of Counts 6, 8, and 10, we also conclude the testimony adduced at the preliminary hearing was sufficient to place defendant on notice of the remaining counts alleging hand-to-penis contact with N.T. As we have already explained, the phrase, “[o]n occasion” with respect to hand-to-penis contact would have placed defendant on notice of at least 2 such touchings per year during the time period in which N.T. was 11, 12, and 13 years old. Only one such touching was alleged when he was 8, 9, and 10 years old. “On occasion” certainly covers that level of frequency. Thus, any due process objection with respect to Counts 1, 2, 5, 7, 9, and 11 would have been futile. (See People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5 [rejecting claim of ineffective assistance of counsel where the claimed deficiency would have amounted to a futile act].)
The same cannot be said with respect to Counts 13, 15, 17, and 19, involving defendant’s oral copulation of N.R. As defendant accurately observes, “there was simply no evidence at the preliminary hearing that [he] orally copulated [N.R.]” As the Court of Appeal explained in People v. Pitts (1990) 223 Cal.App.3d 606 (superseded by statute on other grounds as stated in People v. Levesque (1995) 35 Cal.App.4th 530, 537): “Suppose the evidence at a preliminary hearing revealed the commission of four distinct violations of section 288, say two oral copulations and two lewd touchings, involving victim X,” but “the evidence at trial showed two acts of sodomy and two of sexual intercourse . . . . In such a situation, the preliminary hearing transcript would not afford the defendant adequate notice of the specific acts against which he [or she] might have to defend.” (Pitts at pp. 905-906.) Here, as in the foregoing hypothetical, and as the Attorney General tacitly concedes, the evidence adduced at the preliminary hearing does not support Counts 13, 15, 17, and 19. “Since [defendant] could not constitutionally be prosecuted for or convicted of an offense not shown by the evidence at the preliminary hearing, defense counsel should have objected or taken some action to protect [defendant’s] rights . . . . Given the constitutional mandate discussed above, ‘ “there simply could be no satisfactory explanation” ’ [citation] for counsel’s failure to object.” (Burnett, supra, 71 Cal.App.4th at p. 181.)
We now turn to the question of prejudice. The Attorney General argues defendant was not prejudiced by defense counsel’s failure to move to set aside Counts 13, 15, 17, and 19 as unsupported by evidence adduced at the preliminary hearing because, had he done so, “the prosecutor would have been obliged to either amend the charging document again to reflect the correct description of the lewd conduct at issue or re-file the charges and proceed with a new preliminary hearing.” Moreover, because the defense strategy was to establish “the victims were simply not to be believed,” the “defense theory would be the same” after such an amendment or refiling of charges, indicating to the Attorney General that the result would also have been the same, i.e., conviction of these counts regardless of whether based on oral copulation or lewd touching. In response, defendant argues, “[h]ad the trial court dismissed those charges, ‘the result of the proceeding would have been different’ because the charges would have been dismissed. What the prosecution might then have done is purely conjecture and beside the point.”
Neither party has cited us to authority directly applicable to the question of prejudice in this context. Nor have we found any on our own. However, in Burnett, supra, 71 Cal.App.4th 151, the Court of Appeal rejected an argument similar to the latter argument made by the Attorney General in this case. There, the defendant was charged with possession of a firearm by a felon based on evidence adduced at the preliminary hearing that he brandished a .38-caliber revolver on a particular occasion, but was convicted after evidence at trial showed he also possessed a .357-caliber revolver on a different occasion. (Id. at p. 165) The jury was ultimately informed it could convict defendant of the crime based on his possession of either gun and was provided a unanimity instruction. (Id. at pp. 167, 169.) On appeal, the defendant claimed the conviction had to be reversed because he was prosecuted for an offense not shown by the evidence at the preliminary hearing. (Id. at pp. 165-166.) The Court of Appeal agreed the defendant “could not properly be convicted of this offense” (id. at p. 173), but also determined the claim had been forfeited by the defendant’s failure to object. (Id. at pp. 178-179.) Turning to the defendant’s alternative claim of ineffective assistance of counsel, the court concluded defense counsel’s failure to object fell below an objective standard of reasonableness and resulted in prejudice. (Id. at pp. 179-183.) The court’s assessment of prejudice centered on the fact the defendant was acquitted of brandishing the .38-caliber revolver. There being “no apparent basis upon which a rational juror could have determined that [the witnesses who testified the defendant possessed and brandished that particular gun] were telling the truth as to [the defendant’s] possession of the firearm but not as to his pointing it at [them]” (id. at p. 182), the court concluded, “there is at least a reasonable probability [he] would have been acquitted of the possession count as well if the jury had been told the conviction could not be based upon [his possession of the .357-caliber revolver].” (Id. at p. 183.)
However, earlier in the opinion, the court rejected the Attorney General’s argument the defendant “could have suffered no prejudice from addition of the . . . incident [involving the .357-caliber revolver] as a basis for conviction because his defense was to disclaim possession of any weapon, not solely to disclaim ownership of [the .38-caliber revolver],” explaining: “It is as a matter of law irrelevant whether a defendant is prejudiced by being prosecuted for an offense not shown by the evidence at the preliminary hearing” because the preliminary hearing is “ ‘ “essential to confer jurisdiction upon the court before whom [the defendant] is placed on trial. To say [the defendant] was accorded a fair trial upon an information filed against him [or her] without a substantial compliance with these jurisdictional requirements, and, therefore, that there had been no miscarriage of justice, hardly meets the situation. Such an argument would apply with equal force to the validity of the conviction upon an information filed by the district attorney in a case where no preliminary examination at all had been held. Such practice would result, in legal effect, in wiping out all provisions of the [C]onstitution and the Penal Code providing for a preliminary examination, and in clothing the district attorney with unlimited authority to file information against whomsoever in his [or her] judgment he [or she] might consider guilty of crime. . . .” [Citation.]’ ” (Burnett, supra, 71 Cal.App.4th at pp. 176-177, quoting People v. Winters (1990) 221 Cal.App.3d 997, 1007, internal italics omitted.)
Thus, regardless of whether or not the defense argument would have been the same had the information charged Counts 13, 15, 17, and 19 as lewd touching counts as opposed to oral copulation counts, defendant was still unconstitutionally convicted of four counts over which the trial court had no jurisdiction. This would be the end of the matter had defense counsel objected. But he did not. And as Burnett also makes clear, this is not a situation in which the trial court lacked jurisdiction “ ‘in the “fundamental sense” . . . .’ ” (Burnett, supra, 71 Cal.App.4th at p. 179.) Instead, the trial court acted in excess of its jurisdiction, rendering these convictions “ ‘not void, but only voidable.’ [Citation.]” (Ibid.) Failure to object therefore forfeits the claim on appeal and we are required to apply the Strickland standard of assessing prejudice. (Burnett, supra, 71 Cal.App.4th 151; see also People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1009 [“the Strickland ‘reasonable probability’ standard applies to the evaluation of a Sixth Amendment claim of ineffective assistance of counsel, even when defense counsel’s alleged error involves the failure to preserve the defendant’s federal constitutional rights”].) Under that standard, in order to establish prejudice “ ‘[i]t is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” ’ [Citation.] To show prejudice, defendant must show a reasonable probability that he [or she] would have received a more favorable result had counsel’s performance not been deficient. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] ‘The likelihood of a different result must be substantial, not just conceivable.’ [Citation.]” (People v. Rogers (2016) 245 Cal.App.4th 1353, 1367.)
We conclude defendant has not carried this burden. There is no substantial likelihood that had defense counsel objected and pointed out the discrepancy between the preliminary hearing testimony and the allegations of the information, the prosecutor would not have simply moved to amend the information to base Counts 13, 15, 17, and 19 on lewd touching rather than oral copulation. Ample evidence at both the preliminary hearing and the trial supported such an amendment and conviction thereon. Indeed, given the strength of the evidence at trial, set forth in greater detail immediately below, there is no reasonable likelihood the jury would not have convicted defendant of two counts of lewd conduct based on touching N.R.’s penis each year for four years.
Under the Strickland standard for assessing prejudice, we cannot reverse these counts. (Strickland, supra, 466 U.S. 668.)
Failure to Move to Have Nonresponsive Testimony Stricken
Finally, we reject defendant’s assertion of ineffective assistance based on defense counsel’s failure to move to have nonresponsive testimony from Dr. Anthony Urquiza, the prosecution’s expert on Child Sexual Abuse Accommodation Syndrome, stricken from the record.
During defense counsel’s cross-examination of Dr. Urquiza, counsel asked: “Are you aware of any factors that, um, could occur that might lead to a false report or an allegation about a witness based on your -- your research?” Dr. Urquiza responded: “The -- the -- there is a caveat to the statement. The caveat is false allegations, one, do occur but they occur very infrequently or rarely. Given that, one, it doesn’t happen very often and, two, it’s hard to do research on something that doesn’t happen very often. It appears that issues of custodial disputes where the non-custodial caregiver makes an allegation against the custodial caregiver is the situation in which a false or intentional false allegation of child sexual abuse appears to occur most frequently, but the caveat should be important that we are talking about something that happens a small percentage of the time with a group -- those people who make false allegations -- happens very rarely and infrequently. So when you get down to those small sub groups of something that doesn’t happen often, it’s -- it’s pretty shaky.”
Defendant argues a reasonably competent attorney would have moved to strike this “devastating” and “nonresponsive” answer, and “it is reasonably probable that if the jury had been told to disregard that testimony, the outcome would have been different.” We agree the portions of Dr. Urquiza’s answer stating, and repeating, that false allegations of sexual abuse are rare were not responsive to defense counsel’s question. We need not determine whether counsel’s failure to have these portions of the answer stricken fell below an objective standard of reasonableness, however, because the jury’s brief exposure to this testimony does not undermine our confidence in the outcome of the trial. The evidence against defendant was very strong. Two of defendant’s victims (N.T. and N.R.) testified about sexual abuse they endured over the span of several years. Their description of this abuse was remarkably similar in terms of defendant using a video game as a lure to bring them into his bedroom, the acts defendant engaged in with the boys, and the frequency with which he engaged in these acts. In other words, N.T.’s testimony corroborated that of N.R., and vice versa. And while N.B. was abused only once, and forcibly so, defendant again used a video game to lure the boy into his bedroom and engaged in the same type of behavior. Thus, N.B.’s testimony further corroborated that of N.T. and N.R. Perhaps most damaging, however, were defendant’s statements to the detective admitting he sexually abused these boys. While he minimized the extent of the abuse, the jury was more than justified in believing his victims’ version of events over his own minimalist account. The evidence just recounted was far more damaging to defendant than Dr. Urquiza’s general observation that allegations of sexual abuse made by children are rarely fabricated.
Because there is no reasonable likelihood of a result more favorable to defendant had Dr. Urquiza’s nonresponsive answer been stricken from the record, we must reject his assertion of ineffective assistance of counsel.
The judgment is affirmed.
ROBIE, Acting P. J.