P. v.
Filed 9/19/13 P. v. Martinez CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
JULIAN JOSE MARTINEZ,
Defendant and
Appellant.
H038034
(Santa Clara County
Super. Ct. No. C1103101)
Defendant Julian Jose Martinez was
convicted after a jury trial of four counts of
of a child under the age of 14 years of age (Pen. Code, § 269, subd.
(a)(4)). The court in a bench trial
later found true (1) the allegation that defendant had previously been
convicted of a violent or serious felony, or strike offense, and (2) the
allegation that each of the charged offenses constituted serious felonies. In February 2012, defendant was sentenced to
120 years to life in prison, consecutive to 20 years.
Defendant claims on appeal that the
court erred in admitting irrelevant and prejudicial evidence: namely, that the victim suffered from
seizures about four years after the last alleged assault and, for that reason,
he moved out of the area a few months before trial. He contends that this evidence was used
improperly by the prosecution to garner sympathy for the victim. He argues further that, even if the evidence
had any relevance, it should have been excluded under Evidence Code section 352
because its probative value was substantially outweighed by the probability
that its admission would create a substantial danger of undue prejudice. As to the second argument, defendant asserts
that if his trial counsel failed to object to the evidence in court under
section 352, his failure to do so constituted prejudicially ineffective
assistance of counsel.
We conclude that the court did not
abuse its discretion by admitting the challenged evidence over defendant’s
relevance objection. We hold further
that even though trial counsel failed to preserve an objection to the evidence
under section 352, such failure did not constitute ineffective assistance of
counsel warranting the relief sought by defendant. Accordingly, we will affirm the judgment.
FACTS
I.
Background
Defendant was born in April 1978
and was therefore 33 years old at the time of trial. C.D. (Mother) is his mother. Mother is the adoptive mother of J.D., who
was born in September 1995 and was 16 years old at the time of trial. Mother’s niece, Y.S., is J.D.’s biological
mother.
J.D. testified that he originally
lived with his family in Milpitas,
before moving to south San José. He lived there with his family in around 2005
to 2006 in San José (the first San
José home).
Defendant also lived with them and had his own room there. His family moved to another home in San José,
where they lived between 2006 until 2011 (the second San José home). J.D. testified that defendant lived with them
at the second San José home for a short time.
According to Mother, defendant lived
“off and on†in her household between 2004 and 2009. When she lived with her family at the first
San José home, defendant did not have his own bedroom, but did visit on
occasion—possibly twice a week—and sometimes stayed there. Defendant would sometimes babysit for
her.
Mother further testified that
beginning in approximately 2004, she noticed a change in J.D. He became “[v]ery closed,†antisocial, didn’t
like to play very much, and didn’t trust anyone. Before that time, J.D. had been “a happy little
boy. He loved school. He just loved to play.†He also had a bedwetting problem that
developed around 2004 and continued to 2009.
In April 2010, Mother was told by
J.D.’s sister, A., that defendant had been abusing J.D. Around the same time, Mother contacted the
police.
II.
Videotaped
Interview
J.D. gave a videotaped interview to
Detective Justin Palmer of the San José Police Department on July 26,
2010. J.D. testified at trial more than
a year later that he had truthfully related to the detective what had happened
to him, but that his memory of the events was better during the prior interview
than it was at trial. On several
occasions during his testimony, he was shown a report of the interview prepared
by the detective, and also viewed the entire videotaped interview. The videotaped interview itself was
introduced into evidence and played to the jury.
III.
Charged Offenses
J.D. testified that defendant
forced him to orally copulate him on more than 10 occasions.
the first San José home (2005-2006) and later in the second San José home
(2006-2007). It happened on multiple
occasions in both homes. The incidents
occurred when J.D.’s Mother was away from home.
No one ever witnessed the incidents; they were “always behind closed
doors.†At trial, J.D. could not
remember the details, including the dates, of most of the incidents. He testified that he did not like coming to
court to testify “at all,†because he was trying to put the incidents behind
him, and because they were “embarrassing [and d]isgusting.†He found it hard to look at defendant in the
courtroom because of “[d]isgust, I guess.â€
J.D. performed oral sex on
defendant because he “felt threatened.â€
On many of the occasions, defendant threatened to hit J.D. if he did not
comply. He also “thrust [J.D.’s] head
toward his penis†on more than one occasion.
Many times also, defendant instructed J.D. not to tell anyone “or else
[he] w[ould] get [J.D.].â€
name="_ftnref4" title="">[4] J.D. told defendant “[e]very time†that he did
not want to do what he asked. When J.D.
would try to walk away, defendant would pull him back by his shirt or his
arm. Each incident concluded with
defendant ejaculating either onto a tissue or a towel. J.D. brushed his teeth after each
incident. He did so because he felt his
“mouth was dirty.â€
J.D. initially testified that he
did not remember when it was that he was first forced to perform oral sex on
defendant because “[i]t’s been a long time ago†and he doesn’t like to think
about it. He recalled that he was in the
fifth grade and was approximately 10 when it first occurred. After he was shown a report of the interview
to refresh his recollection, J.D. remembered the first incident slightly
better. It occurred in the first San
José home when he was 11, during the summer before he went into the fifth
grade. He was downstairs watching
television with his brother when defendant called him to a room upstairs. Defendant locked the door, unzipped his
pants, and told J.D. that if he didn’t “[s]uck his penis,†defendant would hit
him. Although he didn’t want to, J.D.
complied; he was afraid. After a few
minutes, defendant ejaculated into a tissue.
Defendant then walked out of the room “as if nothing [had]
happened.â€
At another time while J.D. was
living in the first San José home, he was downstairs watching television. Defendant “came down, pulled down his pants
and took out his penis like usual, and then he had a towel on his shoulder, and
he told [J.D.] that if [he] didn’t do it, that he would hit [J.D.], and so
[J.D.] did it.†Defendant ejaculated
into the towel and then went upstairs to take a shower.
On one occasion at the second San
José home, defendant called J.D. into Mother’s bedroom where there was “a big
mirror.â€
pulled J.D. into the room and directed J.D. to orally copulate him. J.D. tried to leave, but defendant told him
he “would give [him] stuff . . .[and] then he told [J.D.] if [he] didn’t, [he’d]
be in trouble.†J.D. was scared because
defendant was “[m]uch bigger†than he.
would “be in trouble . . . as a threat, I guess.†While J.D. was performing oral sex, defendant
had his hand on J.D.’s head. It lasted
“[a] few minutes†until defendant ejaculated into a tissue.
At another time at the second San
José home, after J.D. was trying to refuse defendant’s demand that he perform
oral sex on him, defendant threatened to hit J.D. He believed defendant when he threatened him. J.D. said he did not “really remember [the
incident] clearly.â€
J.D. recalled that the last
incident occurred between 2007 and 2008 in his bedroom at the second San José
home when J.D. was in the seventh grade.
J.D. was watching television in the living room, and defendant called
him into J.D.’s bedroom. J.D. tried to
walk out of the room so that he would not have to orally copulate
defendant. But defendant grabbed J.D. by
the shirt and pulled him back into the bedroom.
Defendant locked the door, and then “made [J.D.] suck [his] penis†until
he ejaculated into a tissue.
J.D. told his older brother and his
two sisters, V. and A., about what had happened to him. He gave no specifics to them. He also told his adoptive father, V.D.
(Father), on one occasion: “ ‘You don’t
know what happened to me.’ â€
name="_ftnref8" title="">[8]
II.
A., Y.S.’s eldest daughter and
J.D.’s sister, testified that when she was about five or six years old,
defendant touched her inappropriately by rubbing his penis against her
vagina. On April 11, 1994, the court
(Santa Clara County Superior Court case number JV100352) sustained a juvenile
petition alleging that defendant, then 15 years old, committed an act involving
A., then six, which had it been committed by an adult, would have constituted
annoying or molesting a child under the age of 18 (Pen. Code, § 647.6).
Additionally, defendant was
convicted in 2007 (Santa Clara County Superior Court case number FF720217) of
three counts of committing lewd or lascivious acts upon a child 14 or 15 years
old (Pen. Code, § 288, subd. (c)(1)).
The victim, P., called by the defense, testified that she was 15 when
she knew defendant (who was then 29).
She has a tattoo on her neck with the word “Julian,†and she had sex
with him several times back in 2007.
Defendant made a video recording in April 2007 of a sexual act between
her and defendant.
Detective Palmer testified that
during an interview conducted on February 10, 2011, defendant, after he had
been given Miranda warnings,
told the detective “that he had taken a deal on his prior case because he knew
he had committed the acts.â€
name="_ftnref11" title="">[11] He also told Detective Palmer that he was
bisexual.
III. Expert Testimony
Carl Lewis, a retired law
enforcement officer, testified as an expert on the subject of child interviews
and Child Sexual Assault Accommodation Syndrome (CSAAS). He testified that child victims of sexual
assault are almost always reluctant to disclose sexual abuse.
embarrassment, and even guilt. There is
often fear associated with disclosure, with the child thinking about negative
outcomes from coming forward.
“Helplessness is almost a built-in aspect of child sexual abuse.†The difficulty is particularly acute when the
abuser is someone close to the child, resulting in a fear of the consequences
of disclosing the abuse. The typical
reasons given by a child for not reporting child abuse sooner are a fear of
getting in trouble and a belief that no one would believe him or her.
Based upon his experience, Lewis
testified that there is almost always delayed reporting of child sexual
abuse. Delay is the norm, he testified,
based upon both his experience as well as from what he has read in the
professional literature.
Lewis also noted that a child
victim has difficulty in describing the details of what physically occurred to
him or her, due to embarrassment and a reduced understanding about sexual
activity. Child victims, in Lewis’s
experience, are often not readily able to remember specific incidents or relate
the details of them, such as the specific acts, times and dates. Lewis explained: “Children typically don’t attach time and
date significance like adults do to occurrences, particularly if those sexually
abusive events followed a similar pattern, if there were a number of similar
type[s] of incidents.†“[C]hildren
disclosing sexual abuse that occurs over a period of time describe incidents in
kind of a conglomerate way. That is,
many of them tend to run together.â€
PROCEDURAL BACKGROUND
Defendant was charged by felony
complaint filed March 17, 2011, deemed by stipulation of counsel to be an
information, with four counts of aggravated sexual assault by oral copulation
of a child under 14 and 7 or more years younger than defendant (Pen. Code,
§ 269, subd. (a)(4); counts 1 through 4), and four counts of forcible lewd
or lascivious acts upon a child (Pen. Code, § 288, subd. (b)(1); counts 5
through 8). It was also alleged as
enhancements that defendant had suffered a prior violent or serious felony,
i.e., a strike (Pen. Code, §§ 667, subds. (b)–(i); 1170.12)—namely,
robbery (Pen. Code, § 211); and that prior to the commission of the
charged offenses that constitute serious felonies, defendant had been convicted
of a serious felony (Pen. Code, § 667, subd. (a)).
Prior to the empanelment of the
jury, the court, pursuant to the People request, dismissed counts 5 through
8. After the evidentiary portion of the
trial had concluded, the court granted the People’s motion to amend the
information to allege that the charged offenses had been committed between
September 3, 2005, and April 8, 2007.
The People thereafter filed an amended information conforming to the
prior oral amendment.
On September 26, 2011, a jury
convicted defendant of all four counts alleged in the amended information. In November 2011, after a bench trial, the
court found true the strike allegation and the allegation that prior to the
commission of the charged offenses that constitute serious felonies, defendant
had been convicted of a serious felony.
On February 14, 2012, the court
sentenced defendant to consecutive sentences of 30 years to life in prison for
each of the four counts, along with four consecutive terms of five years each
for the sustained prior serious felony allegations attaching to each count of
which defendant was convicted. The total
sentence was 120 years to life in prison, consecutive to 20 years. Defendant filed a timely
DISCUSSION
I. Claim of Error in Admission of
Evidence Concerning Victim
A. Background and Contentions
Mother during direct examination
testified that the family had moved to San Diego because J.D. was having
seizures. Defense counsel objected to
this testimony, contending it was irrelevant; the court overruled the
objection. The prosecution then asked
Mother to explain what she meant about J.D.’s seizures. Mother testified: “He would have sei[z]ures where he would fall
on the floor, pass out. We would have to
take him to the hospital. He had a lot
of tests done. Seeing your son on the
floor not being able to get up, not being able to be in school. Just couldn’t cope with that, seeing him on
the floor because the medication, how it had an [e]ffect on him. Everyday rushing him to the hospital. Tests had to be done.†Defense counsel then interposed a relevance
objection that the court overruled.
J.D. testified that the family had
moved to San Diego in 2011, possibly “[a] few months†before trial. When he was initially asked why the family
moved, he responded (without objection by defense counsel) that there was
“[t]oo much stress here†and “just way too much drama with . . . everything
with my family here.†He later explained
that part of what was “going on†with his family was that, although he was
“fine now, a few months ago[, he] was going through seizures almost every
day.â€
Father testified that he had
brought J.D. from San Diego to testify at trial, and that they had moved south
to San Diego about two months earlier. Father
was asked why the family had moved to San Diego. Without objection, he testified that J.D.
“was getting bad. So we decided to take
him . . . there for him to not be too stressed out.†He explained that J.D. had been having
seizures once or twice a week.
On appeal, defendant argues that
evidence that J.D. had experienced seizures and that the family had to move to
San Diego was irrelevant and the court should have sustained defense counsel’s
relevancy objections. He contends that
there was no evidence that linked J.D.’s seizures with the prior molestation
incidents about which he testified.
Furthermore, he argues, there was an approximate four-year gap between
the date of the last alleged incident and the onset of the seizures. He argues:
“The jury could only guess that [J.D.’s] seizures might have arisen from
posttraumatic stress occasioned by the molestation.†Further, any attempt to explain the move to
San Diego as having been motivated by J.D.’s seizures was unjustified, since
both the move and the seizures were irrelevant.
The evidence, he contends, was improper because it constituted “victim
sympathy evidence.â€
Defendant makes the alternative
argument that, assuming arguendo the challenged evidence was relevant, its
“probative value . . . was overwhelmingly outweighed by its prejudicial effect
within the meaning of Evidence Code section 352.†He argues that trial counsel’s objection was
sufficient to preserve the issue, but even were we to find it insufficient, the
failure to object on that basis constituted prejudicially ineffective
assistance of counsel.
We address defendant’s arguments
below.
B. Evidence
Was Relevant; Court Did Not Abuse its Discretion
1. Applicable
Law
Only evidence that is relevant is
admissible. (§ 350.) “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.†(§ 210; see also People v. Mayfield (1997) 14 Cal.4th 668, 749.) “Accordingly, a ‘witness may not be examined
on matters that are irrelevant to the issue in the case.’ [Citation.]â€
(People v. Lewis (2001) 25
Cal.4th 610, 640.)
“The trial court has broad discretion in
determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial
court’s rulings on the admissibility of evidence. [Citations.]â€
(People v. Harris (2005) 37
Cal.4th 310, 337.) In reviewing
defendant’s claim that the trial court erred because the evidence of J.D.’s
seizures and move to San Diego was irrelevant and inadmissible, we are
cognizant of this broad discretion and “apply the deferential abuse of
discretion standard.†(
1123; see also People v. Benavides (2005)
35 Cal.4th 69, 90.) Although the
court “ ‘has broad discretion in determining the relevance of evidence
[citations] . . . , [it] lacks discretion to admit irrelevant evidence.’ [Citations.]â€
(People v. Riggs (2008) 44
Cal.4th 248, 289.)
2.
Objection Was Properly Overruled
In response to defendant’s claim that the evidence
of J.D.’s seizures and move to San Diego had no relevance, the Attorney General
contends that it “was relevant to explain his demeanor at trial, including his
reluctance to testify and inability to recall details of the molestation.â€
“A witness’s demeanor is ‘part of the evidence’ and
is ‘of considerable legal consequence.’
[Citations.]†(
Cal.4th 1337, 1358; see also § 780, subd. (a); Judicial Council of
Cal.Crim. Jury Instns. (2013) CALCRIM Nos. 105, 226 [instructions concerning
factors jury should consider in evaluating witness’s credibility, including
“behavior while testifyingâ€].) Thus, for
example, “ ‘[e]vidence that a witness is afraid to testify or fears retaliation
for testifying is relevant to the credibility of that witness and is therefore
admissible. [Citations.] An explanation of the basis for the witness’s
fear is likewise relevant to [his or] her credibility and is well within the
discretion of the trial court.
[Citations.]’ [Citations.]†(People
v. Gonzalez (2006) 38 Cal.4th 932, 946, quoting People v. Burgener (2003) 29 Cal.4th 833, 869; see also
Cal.App.4th 1427, 1433.) Likewise,
expert testimony concerning the behavior of victims of domestic violence may be
permissible insofar as it may relate to the credibility of the testifying
victim. (People v. Brown (2004) 33 Cal.4th 892, 906-907; see also
CSAAS admissible on issue of victim’s credibility by potentially refuting
jury’s preconceptions as to how child in general may react to molestation].)
The evidence proffered concerning the witness’s
demeanor may consist of outside factors or medical issues having no direct
bearing on the issues at trial themselves.
Thus, for instance, in People v.
Scott (2011) 52 Cal.4th 452, 493, the prosecution—over defense
counsel’s relevance objection and contention that the evidence would elicit
sympathy toward the witness—was permitted to ask questions establishing that
one of the rape victims testifying at trial had just given birth and had been
discharged from the hospital the night before appearing in court. The trial court advised the jury that this
evidence had been presented “ ‘so that you would be aware of [the witness’s]
present physical and emotional condition as it may bear on her ability to
testify’ †and instructed the jury not to consider it for either sympathy or
bias. (Ibid.) Our high court rejected the defendant’s claim of
error, finding that the trial court had properly considered the evidence
admissible on the issue of the witness’s demeanor as it related to her
credibility. (Ibid.)
Here, as was the case with the victim in
bout of seizures and had moved out of the San José area within months of his
appearance at trial was relevant to his demeanor and credibility as a
witness. That evidence, coupled with
J.D.’s testimony that he found it very difficult to come to court and to face
defendant, provided the jury with a plausible explanation (if it chose to
accept it) of why he had difficulty remembering details of the multiple
incidents of molestation to which he testified and any inconsistencies between
his testimony and his prior interview with the police.
Defendant cites People
v. Vance (2010) 188 Cal.App.4th 1182, in support of his claim of
error, arguing that the purpose and effect of the challenged evidence was to
engender sympathy toward J.D. In that
case, the prosecutor argued to the jury that in its deliberations, it needed to
“ ‘walk in [the murder victim’s] shoes.
You have to literally relive in your mind’s eye and in your feelings
what [the victim] experienced the night he was murdered. . . . You have to do that in order to get a
sense of what he went through.’ †(
was sustained by the trial court, the prosecutor, over several more sustained
objections, continued to give improper argument asking the jury to imagine the
suffering of the victim. (
motion for a mistrial. It also denied
posttrial motions for a new trial and to reduce the conviction from first
degree to second degree murder. (
alia, that the prosecutor’s argument was “ ‘The Golden Rule’ †argument that is
“universally condemned across the nation . . . [in which] a prosecutor invites
the jury to put itself in the victim’s position and imagine what the victim
experienced. This is misconduct, because
it is a blatant appeal to the jury’s natural sympathy for the victim. [Citation.]â€
(Id. at p. 1188.) Because of the repetitive and severe nature
of the comments constituting prosecutorial misconduct,
the trial court’s failure to provide a curative admonition, and its conclusion
that the error was prejudicial, the court reversed the judgment. (Id.
at pp. 1202-1207.)
The facts of People
v. Vance bear no resemblance to those here.
There was no improper jury argument complained of—no invocation of “The
Golden Rule†in which the jury was asked to put itself in J.D.’s shoes and to
imagine the suffering he endured from the molestation incidents. At most, there were brief references in the
testimony of three witnesses that J.D. had suffered from seizures (a condition
that had apparently subsided and which the prosecution did not mention in
argument) and had moved to San Diego shortly before trial. Furthermore, the claimed error here concerns
the introduction of evidence to which defense counsel objected on the basis
that it was irrelevant, yet the court exercised its discretion to admit the
evidence. In Vance, the prosecutor did not introduce evidence of the victim’s
suffering. Instead, it presented
lengthy, improper argument on the subject that the appellate court held was a
“blatant†invocation of “The Golden Rule.â€
(People v. Vance,
In short, the challenged evidence concerning J.D.’s
seizures and move to San Diego was relevant and the court did not abuse its
discretion in admitting the evidence over defendant’s objection.
C. Section
352 Objection Is Unmeritorious
1
Law
Under section 352, courts should exclude evidence
where “its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†(§ 352.) As the court stated in People v. Olguin (1994) 31 Cal.App.4th 1355, 1369, “[W]hile
admissible evidence often carries with it a certain amount of prejudice,
Evidence Code section 352 is designed for situations in which evidence of
little evidentiary impact evokes an emotional bias. [Citation.]â€
As is the
case with rulings on the relevance of evidence, we apply an abuse of discretion
standard to the trial court’s exercise of discretion under section 352; the
court’s decision will not be reversed absent a showing that such discretion was
exercised in an “ ‘arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.
[Citations.]’ [Citation.]†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see also
Cal.4th 398, 437-438, abrogated on another point as stated in
263, fn. 14.)
2.
Claim Is Forfeited
Section 353 prohibits the reversal
of a judgment based upon the erroneous admission of evidence, unless two
requirements are satisfied. First, the
record must show “an objection to or a motion to exclude or to strike the
evidence was timely made and so stated as to make clear the specific ground of
the objection or motion.†(§ 353,
subd. (a).) Second, the appellate court
must conclude that “the admitted evidence should have been excluded on the
ground stated†and that such admission “resulted in a miscarriage of
justice.†(§ 353, subd. (b).)
The California Supreme Court has “
‘ “consistently held that the ‘defendant’s failure to make a timely and
specific objection’ on the ground asserted on appeal makes that ground not
cognizable.†’ [Citation.]†(People
v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) “The objection requirement is necessary in
criminal cases because a ‘contrary rule would deprive the People of the
opportunity to cure the defect at trial and would “permit the defendant to
gamble on an acquittal at his trial secure in the knowledge that a conviction
would be reversed on appeal.†’
[Citation.]†(
434.)
The specific ground for the
evidentiary objection must be enunciated at trial in order to preserve it on
appeal, and an objection at trial on another
ground will not preserve the right to appeal on a different basis. (People
v. Partida, supra, 37 Cal.4th at
p. 435.) “A party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct.†(Ibid.) Thus,
for instance, a defendant’s objection at trial to testimony on the grounds that
it was not relevant, lacked foundation, was speculative, and nonresponsive did
not preserve an objection that it constituted character evidence inadmissible
under section 1101, subdivision (a). (
20-21.) And where the defendant failed
to object under section 352 to evidence of his attempt to murder a person to
whom he had admitted having committed two murders, his appellate claim that the
probative value of the evidence was substantially outweighed by its undue
consumption of time and probability of substantial prejudice was forfeited. (People
v. Harrison (2005) 35 Cal.4th 208, 230-231; see also
211 Cal.App.4th 726, 749 [objection on relevance grounds to question concerning
whether company had terminated employment of the plaintiff’s predecessor did
not preserve unasserted objection that evidence should have been excluded under
section 352].)
Here, each of defense counsel’s
three objections to the evidence of J.D.’s seizures and recent move to San
Diego—made during the direct examination of Mother—was based on the assertion
that the evidence was not relevant.
There was no objection, either by citation to the statute or by
referring to its substance, that the probative value of that evidence was
substantially outweighed by the probability that its admission would be unduly
time-consuming or would create a substantial danger of undue prejudice,
confusion of issues, or misleading the jury, such that the evidence should be
excluded under section 352. Contrary to
defendant’s assertion, defense counsel’s third objection—“Your Honor, I’m
sympathetic but I don’t understand the relevanceâ€â€”was insufficient to preserve
an objection under section 352.
Counsel’s objection did not identify section 352 as the basis for the
objection, nor did he state any of its substance to advise the court that he
objected to the evidence on that basis.
The evidentiary “ ‘objection [must]
fairly inform the trial court, as well as the party offering the evidence, of
the specific reason or reasons the objecting party believes the evidence should
be excluded, so the party offering the evidence can respond appropriately and
the court can make a fully informed ruling.’ â€
(People v. Abel (2012) 53
Cal.4th 891, 924, quoting People v.
Partida, supra, 37 Cal.4th at p.
435.) Defendant did not fairly inform
the court below that it objected to admission of the evidence under section
352; accordingly, he has forfeited the challenge here. (People
v. Harrison, supra, 35
Cal.4th at pp. 230-231.)
3.
Assistance Claim Is Without Merit
Defendant argues in the alternative
that, even if trial counsel failed to preserve the objection under section 352,
such failure constituted prejudicially ineffective assistance of counsel. This alternative claim has no merit.
An ineffective assistance of counsel
claim requires a showing that “counsel’s action was, objectively considered,
both deficient under prevailing professional norms and prejudicial.†(People
v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (
trial counsel failed to act in the manner to be expected of reasonably
competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence
of counsel’s failings.†(
Cal.3d 262, 288; see also People v.
Weaver (2001) 26 Cal.4th 876, 961.)
This means that the defendant “must show both that his counsel’s
performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in
prejudice to [the] defendant in the sense that it ‘so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.’
[Citations.] †(
U.S. at p. 686.)
As to the first element (deficient
performance), an appellate “court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial
strategy. Defendant thus bears the
burden of establishing constitutionally inadequate assistance of counsel. [Citations.]
If the record on appeal 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 there simply could be no satisfactory explanation. [Citation.]â€
(People v. Gray (2005) 37
Cal.4th 168, 207; see also People v.
Scott (1997) 15 Cal.4th 1188, 1212.)
Defendant’s ineffective assistance
claim fails because he cannot establish deficient performance. The record here does not disclose why defense
counsel failed to assert an objection under section 352. Counsel to our knowledge was not asked to
explain this omission, and this is not an instance in which there could be no
satisfactory explanation. (
As we have discussed (see pt. I.B.2., ante), the challenged evidence concerning J.D.’s seizures and move
to San Diego was, contrary to defendant’s assertion, relevant to the issue of
his demeanor and credibility. Because
that evidence was not extensive, a section 352 objection on the ground of undue
consumption of time would have been without merit.
Additionally, while the evidence
may have been prejudicial to some extent in that it could have engendered
sympathy for the victim, this is not an instance in which, on its face, “its
probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice . . .†(§ 352.)
“[E]vidence is substantially more prejudicial than probative within the
meaning of Evidence Code section 352 if ‘ “it poses an intolerable ‘risk to the
fairness of the proceedings or the reliability of the outcome’
[citation].†[Citation.] “The admission of relevant evidence will not
offend due process unless the evidence is so prejudicial as to render the
defendant’s trial fundamentally unfair.â€
[Citation.]’ [Citation.]†(People
v. Paniagua (2012) 209 Cal.App.4th 499, 517.) Based upon these substantial hurdles to a
successful challenge, trial counsel, in deciding not to lodge a section 352
objection, may have taken into consideration the likelihood that such an
objection would have been overruled.
Further, defense counsel may have
chosen not to make the objection because doing so, after the court’s having
previously overruled his multiple relevancy objections, would have unduly
emphasized the evidence in the eyes of the jury. (Cf. People
v. Freeman (1994) 8 Cal.4th 450, 495 [failure to request limiting
instruction on prior crimes evidence not ineffective assistance because trial
counsel “ ‘may well not have desired the court to emphasize the evidence’
â€].) In evaluating ineffective
assistance claims, we “ ‘will not second-guess trial counsel’s reasonable
tactical decisions.’ [Citation.]†(People
v. Riel (2000) 22 Cal.4th 1153, 1185; see also People v. Price (1991) 1 Cal.4th 324, 387 [failure to make futile
or unmeritorious objection is not deficient performance].) Defendant therefore cannot establish
deficient performance, the first element of an ineffective assistance
claim. (See People v. Riel, supra, 22
Cal.4th at p. 1185 [“ ‘failure to object seldom establishes counsel’s
incompetence’ â€].)
Even were we to assume that defense counsel’s
performance was deficient because of his failure to object under section 352,
defendant cannot show he was prejudiced.
To do so, he “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.†(Strickland, supra, 466
U.S. at p. 694.) However, prejudice must
be established as “ ‘a “demonstrable reality,†not simply speculation as to the
effect of the errors or omissions of counsel.’ †(In re
Clark (1993) 5 Cal.4th 750, 766.)
Defendant here cannot show that, had counsel made a
section 352 objection, the trial court would have sustained it. Based upon the record before us, had the
objection been made and overruled, any appellate challenge to such a
hypothetical ruling would have failed, because of the absence of a showing that
the court’s exercise of discretion was conducted in an “ ‘arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.
[Citations.]’ [Citation.]†(People
v. Rodrigues, supra, 8 Cal.4th at
pp. 1124-1125.)
But even if
defendant were able to overcome this first hurdle—by having us assume that the
trial court would have sustained a section 352 objection had trial counsel made
it—he cannot show prejudice, i.e.,
that it is reasonably probable that he would have received a more favorable
outcome as a result of the exclusion of the evidence. (People
v. Lewis, supra, 50
Cal.3d at p. 288.) Defendant
emphasizes that the only evidence supporting the convictions was the testimony
of the victim, and therefore the case turned on J.D.’s credibility and
reliability. The fact that the
convictions were based to a large extent upon the victim himself is
unremarkable in child sex abuse cases.
Defendant also highlights inconsistencies and
uncertainties in the victim’s testimony, but this also is not unusual in child
sex abuse cases. Notwithstanding
defendant’s assertions, we do not view the evidence as a whole as displaying a
weak or a close case in which defendant’s fate may have rested on the admission
or exclusion of the challenged evidence concerning the victim. The evidence of J.D.’s seizures and his move
to San Diego was mild and constituted a minimal amount of the evidence
presented by the prosecution. It was not
emphasized by the prosecution; indeed, the prosecution did not mention J.D.’s
seizures during argument.
name="_ftnref15" title="">[15] Given the nature of the evidence and the fact
that it only concerned the victim (but not defendant) and was not inflammatory
to any degree, we conclude that it is not reasonably probable that defendant
would have achieved a more favorable outcome in his trial had J.D.’s seizures
and his move to San Diego been excluded.
Likewise, even assuming counsel’s deficient performance, it was not of
such a character or degree “that it ‘so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a
just result.’ [Citations.]†(People
v. Kipp, supra, 18 Cal.4th at p. 366.)
We therefore reject defendant’s claim that trial
counsel was prejudicially ineffective in failing to assert a section 352
objection to the evidence concerning the victim’s seizures and his move to San
Diego.
DISPOSITION
The judgment is affirmed.
Márquez,
J.
WE CONCUR:
Rushing,
P.J.
Grover,
J.
name="_ftn1" title="">[1]
Further statutory references are to the Evidence Code unless otherwise stated.
Because there were no corroborating witnesses to the incidents underlying the
crimes charged in the information, the evidence recited in this section, except
for the last paragraph, is derived solely from the testimony of the victim,
J.D.
