P. v. Washington

Filed 10/26/07 P. v. Washington CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack W. Morgan, Judge. Affirmed with modifications.

Leonard B. Levine for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Marques Ray Washington, appeals from his conviction for lewd act upon a child under the age of 14. (Pen. Code,^[1] 288, subd. (a).) Defendant argues he was denied effective assistance of counsel. Defendant was convicted during a retrial after the jury was unable to reach a verdict during the initial trial concerning count 1 of the information. The Attorney General argues the abstract of judgment should be corrected to more accurately reflect the sentence imposed. We affirm with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) The victim was born in 1989. At the time of trial, she was 17 years old. Defendant is victims first cousin. In the year 2000, the victim who was 12-years old, lived with her parents and an older brother. Defendant spent the night at victims home on occasions during the year 2001. Defendant worked for the victims father during that time. The victims bedroom was the first room on the second floor of the home. One evening after the victim was sleeping she was awakened by defendant who was touching her face. Defendant was sitting on the victims bed next to her. When the victim sat up, defendant started touching her breast area under her pajama top. The victim tried to push defendant off in an attempt to convey, No, dont touch me. Defendant removed his hand from her shirt. Defendant then pulled down the victims pajama pants and underwear to her mid-thigh. Defendant touched the victims vaginal area under her clothing. However, when defendant heard the victims mother, Cheri, coming up the stairs, he hurriedly left the bedroom. Cheri then walked into the victims room. Cheri asked what had occurred. The victim was afraid to tell her mother what had happened.

In approximately 2002, the victim was in the upstairs family room of her home watching television. Defendant entered the room, pulled his penis out of his pants, and attempted to put it in the victims mouth. The defendant said, You miss big daddy, huh? Defendant told the victim to suck it, referring to his penis. The victim complied with defendants order. The victim felt that defendant was taking advantage of her. The victim felt sick to her stomach and horrible. The victim was afraid. The victim did not tell anyone because she did not know how people would react. No one else was in the room at the time the incident occurred.

On another occasion in approximately July of the year 2000, the victim was sitting on the floor watching television in the family room. Defendant sat down next to the victim. Defendant opened the victims legs, pulled her pants and underwear down, and began licking her vagina. Defendant inserted his tongue in her vagina. The victim felt horrible. The victim was frightened because she did not know what defendant was doing. The victim did not tell anyone at that time. However, in 2005, the victim told her best friend what had occurred. The victim had read magazine articles regarding girls that had similar experiences. The girls in the articles had been able to confide in someone. The victim decided to tell her best friend. Thereafter, the victim told Cheri what had happened. The victim felt relieved because she had been hurting inside. The victim had gone to counseling. Although the victim loved defendant as a relative before these incidents occurred, she felt that he was sick-minded afterwards. The victim clarified that she was confused regarding whether defendant had inserted his fingers in her vagina on the night he came to her room because he had done that on a separate occasion.

At the preliminary hearing in this matter, the victim testified that when defendant came into her bedroom, he had touched her arm then stuck his hand down her pants. The victim said defendant inserted his fingers into her vagina. The victim also testified at the preliminary hearing that defendant no longer spent the night at her house after his family moved. When cross-examined at trial, the victim said defendant did spend the night at her house after his family moved.

Cheri recalled on one occasion she got up between approximately 2 and 4 a.m. to go to the bathroom. Cheri heard a noise. Cheri went upstairs to check on her children. Cheri turned on a light before she walked upstairs. While walking upstairs, Cheri saw defendant come out of the victims room. Defendant looked surprised. Cheri asked defendant what he was doing in the victims room. Defendant said he was looking for a pillow. Cheri told defendant: Theres no pillows in her room. You dont have any business going in her room. Cheri went into the victims room. The victim appeared to be asleep under the cover. Cheri asked he victim, What was he doing in your room? The victim responded, Well, I didnt know he was in here. Cheri asked again: Did anything happen? What was he doing, you know, in your room? Later that morning Cheri told Edward, the victims father what had occurred earlier. Edward spoke to defendant about the incident the same morning. Edward described their conversation, I just admonished him just for being in the wrong place at the wrong time, and it wasnt something that was looked upon lightly. Defendant had been staying overnight at the victims home on occasions while working with her father. Edward also spoke to defendants father, Kenneth Washington, Sr., about the incident a few days later. Mr. Washington had come to Edwards office to pick up a check. A check dated September 28, 2001 was introduced at trial. In October 2005, the victim told Cheri what defendant had done. The victim was very upset when she made the molestation revelation for the first time. Cheri called the police.

III. DISCUSSION

A. Ineffective Assistance of Counsel

Defendants sole contention on appeal is that he was denied effective assistance of counsel. Defendant argues defense counsel failed to impeach the victim and Cheri with prior inconsistent testimony given at the first trial in this matter. Defendants first trial ended in a mistrial as to count 1 and not guilty verdicts as to counts 2 and 3. Lorraine Dickson represented defendant in both trials.

At the first trial, the victim testified that defendant began touching her when she was six years old. The victim recalled that during the year 2000, defendant came into her room. Defendant dragged his hand across the victims face and shook her. Defendant asked the victim for a pillow. Defendant then touched the victims chest on top of her clothing. Defendant pulled the victims pajama pants down to her mid-thigh. Defendant did not do anything further because Cheri came up the stairs. According to the victim, defendant ran from her room.

Cheri testified at the first trial that defendant was coming out of the victims room in the middle of the night. When Cheri then walked into the victims room Cheri found that the victim had no clothing on. The victim was asked why she was asleep with nothing on. The victim said she was hot. Cheri testified that the year was either 2001 or 2002.

As set forth above, the victim testified at the retrial that she was awakened by someone touching her face. Defendant was sitting on the victims bed next to her. When the victim sat up, defendant started touching her breast area under her pajama top. The victim tried to push defendant off in an attempt to convey, No, dont touch me. Defendant removed his hand from her shirt. Defendant then pulled down the victims pajama pants and underwear to her mid-thigh. Defendant touched the victims vaginal area under her clothing. When cross-examined, the victim was impeached with her January 18, 2006 preliminary hearing testimony. At the preliminary hearing, the victim had testified that defendant stuck his hand down [her] pants and inserted his fingers into her vagina. When asked if defendant had actually inserted his fingers or just touched her, the victim testified at the retrial, Not that I recall. It was late in the night. I wasnt paying attention. [] . . . [] He was touching me down there. I dont know exactly what was going on because when he was doing that, I remember my mother coming upstairs, or someone coming upstairs. The victim testified on redirect that defendant had inserted his fingers in her vagina on a separate occasion. The victim was uncertain when the bedroom incident occurred. The victim was approximately 12 years old in 2001, but could not be certain if the incident occurred in the year 2000 or 2001. During the retrial, the victim testified that defendant had spent the night at her home after his family moved away. The victim was impeached with her preliminary hearing testimony that defendant did not spend the night after his parents had moved.

Cheri testified at the retrial she heard a noise during the early morning hours. Cheri then walked towards the victims bedroom. Cheri saw defendant coming out of the victims room. When Cheri went into the room, the victim appeared to be asleep under the covers. Cheri did not notice anything unusual about the way the victim was dressed. When cross-examined, Cheri was asked if she recalled a prior conversation with Detective James Charles. In that conversation Cheri said that after defendant walked out of the bedroom, the victim was lying unclothed on the bed. Cheri was asked whether she remembered such a conversation with Detective Charles. Cheri responded: I recall something to that, yes, I do. [] . . . [] I cant recall exactly because I know that when I went in her room, I remember she was under the cover. If she was nude, I cant tell you exactly for sure.

Our standard of review in determining whether defendant was denied effective assistance of counsel was specified by our Supreme Court: In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels 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 Avena (1996) 12 Cal.4th 694, 721.) (People v. Williams (1997) 16 Cal.4th 153, 215.) [] . . . . . . In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.) (People v. Williams, supra, 16 Cal.4th at p. 215.) (People v. Majors (1998) 18 Cal.4th 385, 403.) The Supreme Court has also held: Moreover, [i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.] (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) Our California Supreme Court has held that in ruling on an ineffective representation contention we must also consider the record of what counsel did do at trial. (In re Ross (1995) 10 Cal.4th 184, 209; People v. Miranda (1987) 44 Cal.3d 57, 121.)

In the present case, defense counsel impeached both the victim and Cheri with prior inconsistent testimony given at the preliminary hearing. Most of the impeachment dealt with the related inconsistencies from their testimony in the first trial. Defense counsel argued at length in closing argument regarding the inconsistencies in the testimony of the victim and Cheri: I asked [the victim] about the testimony that she gave under oath at a preliminary hearing back in January of this year. She testified that after the defendant and his family moved no other incidents occurred. She also testified that after they moved [defendant] never spent the night again. Mr. Washington [defendants father] testified that they moved in December of 2000. [] Now, when asked about that here in trial [the victim] said, Oh, that was a mistake. He did spend the night after they moved. And then I reminded her of another question that was asked in preliminary hearing. I asked [her]: [] Nothing happened in 2001? She said, No, not that Im sure of, was her response. I dont remember was her answer. But she said that, too, was mistaken. That testimony given under oath at the preliminary hearing was also mistaken. [] Then I asked her to read from a statement that she gave Detective Charles. I had her read a paragraph if you remember and asked her in the paragraph that she read, did she tell Detective Charles that at the time that she was twelve which would have been the year 2001, that any incidents occurred. She said No. She did not tell him that when she was 12 any incidents occurred. [] Then we heard testimony from Mr. Washington. Mr. Washington stated that he believed definitively that the incident occurred August of 2000 because his family, including [defendant], his wife and his other kids went to a wedding in [Louisiana]. He said that he remembered [defendant] returning from the wedding early because he was in summer school and he stayed with his uncle. That when he returned he got a call from his brother who told him about this incident, that his wife saw [defendant] coming out of or near the room of the [victim]. That they met subsequent to that conversation at his shop, [Edwards Shop]. Edward gave him a check. That check was dated August 28, 2000, in the amount of $2000.

Defense counsel continued: As stated earlier [the victim] gave testimony at a preliminary hearing. She stated that in this particular incident, the pillow incident, that [defendant] came into her room. He sat down on the bed and that she sat side-by-side with him. . . . . At the preliminary hearing she stated that he sat next to her and the he put his hand down her pants and inserted his fingers into her vagina. . . . [] On Monday she stated that [defendant] put his hand underneath her blouse causing a couple buttons to come loose, and then he pulled her pants down mid length and then he touched her on her vagina. And when I asked her did he insert his fingers, she said, No, I think he just touched it. I said, well, the testimony you gave at the preliminary hearing, was that a mistake? And she said, yes, that was mistake. The same testimony she gave a couple months ago under the same oath that she gave here in this court was a mistake. [] Then she testified that her mother came into the room while her shirt was partially undone and her pants were down. That she stated according to just based upon the statement she gave to the detective that she told her mother she was that way because she was hot. But if you remember the testimony of her mother, her mother stated that she came into the room [the victim] was under the covers. She could not recall whether or not [the victim] had on any clothes but she appeared to be asleep. . . . [] But I asked [Cheri], Did she give a statement to Detective Charles? She at first didnt remember doing so. I refreshed her memory by letting her read it. She read the statement and then she recalled actually telling Detective Charles that her daughter when she walked in the room, her daughter was laying there nude. Later she said she thought she saw her daughter laying there nude. Defense counsel brought the jurors attention to Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 226, which cautions the jurors about witness credibility, arguing, A mother would not believe or not remember whether or not she walked into a room and saw her child naked?

Defense counsels failure to use further impeachment evidence from the first trial may have been the result of a tactical decision. In any event, the cross-examination with prior inconsistent preliminary hearing testimony served to raise questions concerning the credibility of both the victim and Cheri. It is unlikely that any further impeachment would have been significant. More importantly, there is no reasonable probability that, but for defense counsels alleged unprofessional errors, the result of the retrial would have been different.

B. Sentencing

The Attorney General argues that the abstract of judgment should be corrected to include the trial courts oral order that defendant submit to deoxyribonucleic acid testing pursuant to section 296, subdivision (a)(2)(A). We agree. The Court of Appeal has held, [A] discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. (Peoplev. Williams (1980) 103 Cal.App.3d 507, 517, quoting the Los Angeles Superior Court Criminal Trial Judges Bench Book at page 452; see also  1207; In re Daoud (1976) 16 Cal.3d 879, 882, fn. 1 [trial court could properly correct a clerical error in a minute order nunc pro tunc to conform to the oral order of that date if there was a discrepancy between the two].)

IV. DISPOSITION

The trial court is to personally insure a correct abstract of judgment reflecting the deoxyribonucleic acid testing requirement is prepared and forwarded to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

ARMSTRONG, J.

MOSK, J., Concurring

I concur.

I would affirm on the basis that the ineffective assistance of counsel assertion should, in this case, be litigated in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267). I am not prepared to state that ineffective assistance of counsel was not prejudicial. The issue of prejudice affects not only guilt or innocence, but also the issue of the age of defendant when the alleged offense occurred.

MOSK, J

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.