Filed 9/7/17 P. v. Mendoza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed.

Blumenthal Law Offices and Brent F. Romney for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION[1]

Defendant Jorge Casarez Mendoza molested two young sisters when they spent the night at his house while their mother worked and defendant’s wife took care of the girls. A jury convicted defendant of one count of committing a lewd and lascivious act upon a child under the age of 14 years old (§ 288, subd. (a); count 1), and four counts of committing a lewd and lascivious act upon a child under the age of 14 years old by force, duress, or fear of immediate injury (§ 288, subd. (b)(l); counts 2-5). The jury also found true the allegation that defendant committed an offense against multiple victims, within the meaning of section 667.61, subdivision (e)(4). The trial court sentenced defendant to five indeterminate terms of 15 years to life, a total of 75 years to life in prison. (§ 667.61, subd. (e)(4).)

On appeal, defendant contends he received ineffective assistance of counsel (IAC) because his trial attorney did not present evidence purportedly undermining the credibility of the victims. Second, defendant contends the court abused its discretion by ruling that evidence of prior conduct was admissible and not unduly prejudicial. We deem these contentions meritless and affirm the judgment.

II

STATEMENT OF FACTS

M.T., who was born in 1993, was 10 years old. While she was sleeping on defendant’s living room floor, she woke up to discover defendant had removed her underwear and was licking her genitals.[2] When defendant realized M.T. was awake, he stopped and told her he was just “covering [her] up.”

R.C. was born in 1998. Defendant started to molest her at his house when she was about seven years old. Almost every night, while everyone else was asleep, defendant came into the living room where R.C. was sleeping. He pulled up her shirt and touched her breasts with his hands and mouth. He kissed her on the neck and pulled down her pants to touch her genitals. Defendant would pull R.C. on top of him, kiss her neck, and rub his beard against her face. Once he removed her pants and rubbed his penis against her genitals. Defendant ignored her requests to stop. R.C. started to wear a belt in a futile effort to stop defendant from removing her pants. Defendant molested R.C. almost every night until she was about 10 years old.

After defendant’s biological daughter learned about the accusations made by the two victims, she confided to their mother and then told the police about how defendant would touch her when she was between the ages of 13 and 15 years old. At one point in the police interview, she described how defendant would approach her in the living room where she was sleeping, and touch her legs: “I felt like he was touching my legs through the blanket,” causing her to be “really scared.” At other points in the interview, she agreed with the detective’s characterization of defendant’s conduct as “rubbing” or touching her leg. Defendant would quickly pull his hand away when she awakened. For two years, she slept curled up in a fetal position out of fear of defendant.

Defendant’s daughter will not leave her own daughter with defendant because of what happened. At trial she recanted what she had said to the police and claimed defendant had never touched her sexually.

Defendant’s wife testified on his behalf, claiming that defendant was rarely at home and slept in the living room while R.C. slept with defendant’s wife. Defendant’s former boss testified that defendant was a hardworking, honest man.

III

IAC

On appeal, defendant contends his trial attorney was prejudicially deficient in his legal representation for not undermining the credibility of R.C. and M.T.—including not contradicting R.C.’s testimony regarding the molestation detail and not producing evidence of R.C.’s motive to accuse defendant falsely—and proceeding on a defense theory that defendant’s two sons, Alvaro and Hugo, committed the molestations.

To establish IAC, a defendant “‘must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.’” (People v. Johnson (2015) 60 Cal.4th 966, 979-980.) Unless a defendant establishes otherwise, a reviewing court shall presume 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.’” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) A reviewing court will reverse on direct appeal for IAC only when “the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 12 Cal.4th 415, 442.)

Where the trial court has already considered these claims in the context of a new trial motion, “all presumptions favor the trial court’s exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences.” (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) These factual findings, express or implied, should be upheld if supported by substantial evidence: “‘the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel’s acts or omissions were those of a reasonably competent attorney.’” (People v. Andrade (2000) 79 Cal.App.4th 651, 660, quoting People v. Jones (1981) 123 Cal.App.3d 83, 89.)

Motion for New Trial

After his conviction, defendant filed a motion for a new trial, arguing IAC on the same grounds he now asserts on appeal. In the motion for a new trial, defendant’s new attorney claimed trial counsel was ineffective for not introducing evidence that R.C. had a motive to accuse defendant falsely; for not calling defendant’s two sons to testify that R.C. did not sleep in the living room, as she claimed at trial; and by not introducing evidence that R.C. stayed at defendant’s house of her own volition. Defendant’s wife, two sons, and daughter submitted supporting declarations. Trial counsel testified that he made the tactical decision not to call the sons as witnesses because trial counsel argued at trial that one of the sons may have molested R.C. but she mistakenly thought it was defendant. Trial counsel acknowledged it would have been relevant if he had known R.C. was getting into trouble at home at the same time as when she disclosed the abuse. In closing argument, trial counsel had argued that there was contradictory evidence about where R.C. slept.

Defendant’s new attorney—and his present appellate counsel—then argued that it was IAC not to establish R.C.’s potential motive for making a false accusation because she wanted to avoid going to defendant’s house. He further argued the sons could have corroborated that R.C. slept in the bedroom with defendant’s wife and not alone in the living room.

The prosecutor countered that the jury heard evidence that R.C. wanted to go to defendant’s house during the time of the alleged abuse—a typical reaction with victims of sexual abuse. Trial counsel had also questioned defendant’s wife in detail regarding the sleeping arrangements in the home. Furthermore, any information regarding R.C.’s motive to make a false accusation would have been offered by defendant’s daughter, who had been impeached by her prior statements.

Ultimately, the court denied the new trial motion, finding that defendant had failed to demonstrate either deficient performance or prejudice. The court reasoned that the jury heard evidence regarding the sleeping arrangements and that additional evidence would have been cumulative; that the jury heard evidence that R.C. wanted to spend time at defendant’s house; that defense counsel interviewed defendant’s daughter before trial; and that defense counsel made a tactical decision not to call the sons as witnesses. The court found extremely strong evidence of guilt and that none of the proposed additional evidence would have made a difference in the outcome of the trial.

On appeal, defendant raises the same assertions of deficient performance, as he asserted in his unsuccessful motion for a new trial. The evidence defendant claims was lacking was already presented to the jury through the testimony of defendant’s wife and the victim’s mother. Together they testified that, until she was 11 years old, R.C. liked defendant and wanted to visit his house. R.C. explained in her own testimony that, initially, she was too young to understand what was happening. As she got older and began to understand, she no longer wanted to be around defendant. To the extent that defense counsel could have produced further evidence on this point (including testimony from defendants’ sons), it would not have affected the outcome of the trial as it did not undermine R.C.’s credibility. We also reject defendant’s contention that there should have been more evidence about whether R.C. slept in the living room even though defendant’s wife testified R.C. slept with her in the bedroom.

Regarding M.T.’s credibility, defendant argues trial counsel should have presented evidence that M.T. lied to lend support to R.T.’s claims. M.T. assured her mother that she knew R.C. was telling the truth because defendant had done the same thing to her when she was younger. M.T. did not disclose the abuse earlier because she did not grasp what defendant had done until she was older. The foregoing did not constitute a false accusation and it was not deficient not to raise this point at trial.

Furthermore, defendant argues trial counsel should have presented evidence that, because R.C. was getting in trouble at home for misbehavior, she accused defendant to escape going to his house. Trial counsel acknowledges such evidence could have been relevant. However, the theory also seems somewhat convoluted and implausible and the source of the evidence was defendant’s daughter who was not a credible witness at trial. Therefore, it is not reasonable the evidence would have produced a different outcome.

Finally, trial counsel had two alternative theories: either no molestations occurred and the victims made everything up, or R.C. was molested, but by someone other than defendant. Defendant contends it is unlikely the jury would have believed trial counsel’s theory that defendant’s sons molested R.C. Trial counsel wanted to point to them as potential perpetrators because M.T. had told R.C. the sons had done something sexual to her when she was younger. However, reviewing courts “should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Further, “[t]actical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) It was certainly reasonable not to call defendant’s sons as witnesses.

Even assuming any deficient performance, defendant cannot show prejudice. The evidence of guilt was strong: three girls, including his biological daughter, accused defendant of touching them with a sexual intent while they were supposed to be asleep. There was no evidence of collusion. As the court stated, “[W]ith respect to the likelihood of a different result in the event that defense counsel had conducted the trial differently, particularly with respect to testimony and evidence presented, I find that the testimony of the three alleged victims including the taped statement of [defendant’s daughter] did point extremely strongly towards guilt with no evidence . . . there being no evidence of or inference of collusion among the victims.” Defendant’s sons’ proffered testimony would have been cumulative to that of his wife. Finally, any additional evidence of a false motive would not have affected the outcome of the trial because it originated with defendant’s daughter who was not a credible witness for her father. Absent deficient performance or resultant prejudice, the IAC claim fails.

IV

PROPENSITY EVIDENCE

Defendant’s daughter told the police in a recorded interview about defendant’s past sexual misconduct against her. Defendant argues the trial court erred in allowing such evidence without first listening to the recorded statement. We disagree.

The prosecutor made a detailed offer of proof to the court. (See People v. Holford (2012) 203 Cal.App.4th a 155, 174 [trial court may rely on an offer of proof that details the contents of a proffered piece of evidence]; People v. Pedroza (2007) 147 Cal.App.4th 784.) Because the prosecutor’s trial brief contained an accurate summary of the interview, defendant cannot show how the trial court’s decision would have been different had it reviewed the full interview before ruling. The court would still have admitted the evidence.

While evidence of a defendant’s prior bad acts is generally inadmissible to prove his conduct on a specific occasion or his propensity for criminal activity (Evid. Code, § 1101, subd. (a)), an exception exists in cases involving alleged sex crimes. In such cases, “evidence of the defendant’s commission of another sexual offense . . . is not made inadmissible by [Evidence Code, s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code, s]ection 352.” (Evid. Code, § 1108, subd. (a).) In other words, as long as the uncharged sex offense is not barred by Evidence Code section 352, it may be used as propensity evidence in sex crime cases to prove the defendant is disposed to commit such crimes and thus guilty of the charged offense. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912, 920, 923.) In determining whether the evidence should be excluded under Evidence Code section 352, the court should examine whether the probative value of the evidence “is substantially outweighed by the probability that its admission will necessitate undue time consumption or create substantial danger of undue prejudice, confusing the issues, or misleading the jury.” (People v. Loy (2011) 52 Cal.4th 46, 61-64.)

Here, the evidence that defendant repeatedly touched his daughter’s leg while he thought she was asleep was admissible under Evidence Code section 1108 and not subject to exclusion under Evidence Code section 352 because it demonstrated defendant’s propensity to commit the charged offenses and was not unduly prejudicial. The prior statement of defendant’s daughter showed that defendant had engaged in similar conduct before committing the charged acts against M.T. and R.C. There was little likelihood the jury would become confused or distracted by the evidence. The court’s ruling that the prior statement was admissible would not have changed had the court listened to the recorded statement or reviewed the full transcript before ruling.

Finally, even if the court erred by admitting defendant’s daughter’s prior recorded statement, any error was harmless in light of the strength of the prosecution’s case. Error involving the admission of prior acts under Evidence Code section 1108 is not reversible unless defendant can show a reasonable probability he would have obtained a more favorable result had the court excluded the prior act evidence. (People v. Gonzales (2011) 51 Cal.4th 894, 924; People v. Falsetta, supra, 21 Cal.4th at pp. 924-925.) It is not reasonably probable that defendant would have benefitted by the exclusion of his daughter’s prior statements. The testimony of the two victims was consistent and persuasive far beyond any evidence supplied by defendant’s daughter.

V

DISPOSITION

We reject defendant’s claims of IAC and evidentiary error. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

FIELDS

J.