P. v. Settanni

Filed 1/29/09 P. v. Settanni CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Appeal dismissed.

Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Writ granted.

Julie Schumer for Defendant, Appellant and Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

In May 2005, Jay Richard Settanni (Settanni) was charged by information with eight counts of committing lewd acts with a child under the age of 14. (Pen. Code,  288, subd. (a).)[1] The acts were alleged to have occurred between January 1, 2000, and May 28, 2004, and to have involved a single child, E.D.[2] The information further alleged that with respect to count 1 of the information Settanni had digitally penetrated the childs vagina or rectum, an enhancement allegation that if proven precludes a grant of probation. ( 1203.066, subd. (a)(8).) However, the district attorney dismissed this enhancement allegation on grounds of insufficiency of the evidence at the conclusion of the prosecutions case-in-chief. On February 14, 2007, a jury convicted Settanni on all counts, and less than a month later, the trial court sentenced Settanni to a nine-year prison term. Settanni filed a timely appeal.

On appeal, Settanni challenges the trial courts admission of evidence of a prior, uncharged act of sexual misconduct and the constitutionality of Evidence Code section 1108, the statute that sanctions the admission of this type of propensity evidence. He also argues that the prosecutor committed three acts of prosecutorial misconduct by twice interjecting evidence of a collateral dependency proceeding and once referring to Settanni as a pompous pig during closing argument. In his petition for writ of habeas corpus, Settanni argues that trial counsels failure to investigate, retain or present expert testimony in the field of child witness suggestibility and proper forensic interviewing technique constitutes ineffective assistance of counsel.

Because the key issue of the case was the child witnesss credibility and because counsel was aware of the availability of this type of expert, which he concedes most certainly would have been beneficial to his client, we conclude counsels failure to conduct even a modicum of investigation into the retention of such an expert amounts to professional performance below a reasonable standard of care. Moreover, without conducting any investigation into the availability of this type of expert, counsel cannot now ascribe his actions to a reasonable tactical decision. Furthermore, counsels failure to investigate the availability of such an expert when considered in conjunction with the evidence adduced at trial, a trial without physical evidence to support the childs allegations, a confession, and only the weakest form of propensity evidence, undermines our confidence in the verdict. Consequently, we grant Settannis petition for writ of habeas corpus. The judgment is therefore reversed and the matter remanded for a new trial. We dismiss the appeal as moot because it addresses trial issues not relevant to the case on remand.

I

FACTS

On May 28, 2004, E.D., then age 9, was visiting Shannon, the Settannis eldest child, in the Settannis family home. During the visit, she fell, fully clothed, into the Settannis swimming pool. Shannon took E.D. into the house and led her to the laundry room. When Shannon went upstairs to retrieve some dry clothing, Settanni entered the laundry room and helped remove E.D.s wet clothing. She stood in her underwear in front of Settanni for a couple of minutes before Shannon returned with some dry clothes.

When Settanni later drove E.D. home, he briefly spoke to her mother, Lucy, and put E.D.s wet clothing in the kitchen sink. Lucy said that Settanni appeared nervous and in a hurry, but she was distracted by houseguests and did not talk to her daughter. E.D. immediately went into the garage and told her father, Scot, that she needed to talk to him. Scot noticed that she looked upset and teary-eyed. E.D. then said that she could never go visit her friend Shannon again because Settanni had touched her private parts. She explained to her father that Settanni had put his hands down her pants and forced her to touch and rub his crotch. She said that Settanni had touched her in this manner on many occasions over several years.

Within the hour, Lucy telephoned the Settanni household to cancel a planned sleepover. When Settanni later returned to E.D.s family home to retrieve his own daughter, Shannon, Scot talked to him but did not confront him with E.D.s accusations. Instead, Scot and Lucy contacted the police. At approximately 11:00 p.m. an Orange County Sheriffs Deputy came to their house. The deputy interviewed E.D.s parents, but did not interview E.D..[3]

The Covert Telephone Call

Orange County Sheriffs Department Investigator Myrna Caballero, who is a member of the Orange County Child Abuse Services Team (CAST), came to E.D.s family home three days later. Although Settannis wife Helen had been made aware of E.D.s allegations against her husband in the interim, Investigator Caballero arranged for E.D.s father to make a covert, tape-recorded telephone call to Settanni.[4]

During the telephone call, Scot told Settanni that E.D. had said something transpired while she was at the Settannis home. Settanni responded, [W]ell, actually, you need to talk to Shannon cause she was there the whole time I was with [E.D.]. Scot replied, Okay. Settanni continued, And uh, ***and shell be completely honest with you. Because, I, you know, I was telling Helen, I dont know what, you know what the fuck you mean by inappropriate. I***Christ, it could be anything. Scot clarified that he wanted to know if Settanni fondled [his] daughter or touched her in any way. He encouraged Settanni to tell him what happened so that E.D.s family could deal with this . . . . Settanni responded, And I think you . . . oh, God. And Im gonna tell ya, I, you know what, uh, ah, I dont I really dont know what to tell you. I mean um, Im gonna have to think about that for a bit, because, I, I have to go way back to see. . . . Scot attempted to clarify the issue, saying, Its a simple yes or no question. Have you ever touched my daughters vagina? Have you ever touched her butt? Have you ever touched her breasts? Settanni replied, Her breasts. Um, her, her butt. Um, vagina, no. Butt***, um, I dont. . . []. . .[] I dont remember. Ive gotta tell ya, I, I dont think about things that way buddy. I just dont think about things that way. Breasts, ah, I no, ah, I, I dont. Oh, gosh. You know, I, I really dont how to answer that . . . . Scot asked Settanni, Have you ever . . . taken her hand and put it on your penis? Settanni replied, Um, that would be a no.

Scot asked Settanni why E.D. would com[e] outta the blue and say[] this stuff. He empathized with Settannis situation by saying that he knew it was an embarrassing issue. However, Scot said it was important to get to the bottom of this and find out [w]here it started. When it started. What did you do? Settanni responded, You know what, Scot, I would. Im just tryin to think . . . [as] far as last Friday night, Shannon was with us every minute of the time. So you talk to her and . . . I dont know why shes coming up with this. I dont know why the McMartin people thought there was people under the thing. Settanni suggested that E.D. had heard something at school or by watching television, and he complained that what was happening to him was like a witch hunt. When Scot again pressed Settanni for an explanation for E.D.s accusations, Settanni told him, You know what, I dont know what she, I dont know what she said. So, I mean, other than just the fondling itself, you know . . . I didnt do it to her. And she didnt do it to me. So I can say that.

Scot then asked Settanni if he was flat out [] denying any kind of sexual contact with [E.D.]. Settanni replied, [w]hat is sexual fucking contact? I dont know. Scot explained, Sexual contact is touching any part of a body thats considered a breast, a vagina, a butt. A penis. Settanni then stated that he had probably touched a lot of [] girls butts . . . when they jump on me or whatever [] hang on me . . . .Thats all I got. Go outta my way to touch her vagina or***no, I dont do that. He again suggested that E.D. had heard something at school that caused her to accuse him of touching her, and he reiterated that on May 28, when E.D. had last been in their home, he had never been alone with E.D. and that Shannon had been with them.

Settanni repeatedly denied touching E.D.s vagina, but conceded that he may have touched her butt. He also conceded that he may have grabbed her hand and may have spanked her on her butt or carried her someplace. He also repeatedly suggested that E.D. had heard something at school that caused her to make up a story about him touching her. Further, he repeatedly denied being alone with E.D. and directed Scot to talk to Shannon. In apparent frustration, Scot responded, Shannon isnt the one shes talking about. Youre the one shes talking about . . . . Settanni restated that he might have touched E.D.s bottom, but he emphasized that it was not a conscious thing and that he was not trying to get any kind of gratification out of [it]. He positively stated that he didnt touch her vagina. She didnt touch my genitals. And, but as far as the butt goes, shit, you know what, in the last six years, shit, I dont know Scot . . . . Settanni also questioned E.D.s delay in reporting, asking why didnt she say it before?

The CAST Interview

Investigator Caballero also arranged to have E.D. interviewed by a CAST social worker on June 2, 2004. This interview was videotaped. A videotape and a transcript of the recording were presented to the jury at trial. We have reviewed both exhibits and provide the following brief summary.

The videotape reveals that a CAST social worker met E.D. in a small room with a table and chairs, a writing board, and various other toys. The woman explained to E.D. what would happen during the interview and advised her that she could ask for breaks and interrupt, if necessary. She also told E.D. that it was important that she not mak[e] anything up and to talk about the truth. She asked E.D., What does it mean to tell a lie? E.D. responded, That youre not telling the truth. She also asked E.D. if telling the truth was a good thing, and E.D. said that it was and that telling a lie is bad. The social worker said, While were talking today, can you promise to only talk about true stuff with me? E.D. replied, Uh-huh. The social worker elicited background information from E.D., who also told the social worker that her parents punish her by sending her to her room and that she is punished for doing bad stuff. On occasion, her parents also withhold dinner as punishment, but E.D. said that most of the time she gets sent to her room or grounded for a week, although her father had sometimes spanked her butt with his hand because she has a big mouth.

E.D. stated that she understood why she was being interviewed and that she was there to talk about what happened to [her]. When the social worker asked what had happened, E.D. replied, I got sexual abused and touched in the wrong way. She told the social worker that Settanni had touched her crotch, butt, and boobs. She pointed to corresponding body parts on an anatomically correct picture. The social worker asked, What do girls use their crotches for? E.D. responded, To go to the restroom. Then she explained that she meant to urinate. She identified boobs as being her breasts, and explained that breasts are used to give a baby milk. She said that girls use butts to [g]o poo.

After E.D. identified these various body parts, the social worker asked, And you were saying that [Settanni] touched you on the crotch, the boobs, and the butt? E.D. replied, Uh-huh. Then she asked E.D., Did that happen one time or more than one time? E.D. responded, More than once. E.D. then recounted the first time she remembered Settanni touching her in one of these locations. At the time, she was six years old. She also recalled that Settanni put his hand under [her] underwear and he rubbed [her] crotch. She said this happened at the Settannis house. She knew the Settannis had moved three times since this incident, but she was sure that the first time he touched her the Settannis were right next door to us. When the social worker asked E.D. how it happened, she responded, I dont know how. He just does it. She also said that Settanni did not say anything when he touched her, and she reported, the daughter doesnt say anything about it, so I dont know if she knows.

E.D. explained that the first time Settanni put his hand inside her underwear and touched her inside where pee comes out. She explained that it gave her the shakes and she thought that it was wrong, but that she didnt know how to stop it. She also said that it felt weird. She demonstrated the motion for the social worker, showing her that he had rubbed in a circular motion. She said he stopped when Shannon got up and said, lets go in the backyard. E.D. further explained that she had been in the Settannis garage at the time and sitting on his lap, and that Settanni touched her when Shannon left the garage to go into the house. E.D. said she was too scared to say anything, and she was also worried that something might happen to Shannon, if Settanni might have gone to jail or something. She said that she did not tell anyone and did not want anyone to know.

E.D. told the social worker that as she got older, Settanni stopped putting his hands down her pants and just rubbed it. However, he did put his hands down her pants three or four times. She said these incidents all occurred at the same house. E.D. also claimed that on three or four occasions Settanni put his hands down her shirt. When the social worker asked her if Settanni had touched the inside of her butt or the outside, E.D. said that he had done both. E.D. said this touch also felt weird, but that it tickled at the same time. She explained, He has long nails and he kind of did it with his nails. Although they were alone when this touch happened, E.D. thought there were other Settanni family members in the house at the time. Settanni had also hugged her, but she said it was a tight hug, squeezing me, different from the type of hug her father gave.

E.D. stated that on the day she fell into the pool, Settanni took off her clothes and helped her take off her pants. E.D. knew her father had called and talked to Settanni about it, and she knew Settanni had said that he never ever touched me in the wrong places . . . . She told the social worker that Settanni did not touch her, but he had kissed her head. The social worker asked, Were there any times that Settanni made you touch his body someplace? E.D. replied, He made me touch his balls . . . . [] . . . [] [h]e grabbed my hand and put it on his balls and made me rub it. She explained that he had made her touch him over his shorts, that he made her rub it, and that it felt hard. She said this happened when she was in the Settannis third and current home, while they were sitting on the couch together, and that Settanni had done this more than once and about three times.

The social worker clarified that this type of touching started when E.D. was about five or six, and asked, [W]hen was the last time that something happened? E.D. responded that the last time had been [a] couple of weeks ago when I fell in the pool. The social worker prompted E.D. to tell me about the time you fell in the pool. E.D. then described the following incident: Well, we were playing and with Lucky, her dog. Its a golden retriever, about one-year-old. And so what happened was I was getting his ball and we were running around and so I fell in the pool and then we went in the laundry room and (inaudible) said, Its oaky. Ill go in the bathroom. And he said, No. Its okay. Just stay here in the laundry room. And so I changed and then he took off my shirt and he took off my pants. E.D. said she also removed her underwear, but again denied that Settanni touched her. She said that Settanni merely offered to help her take her clothes off. However, she said that taking off her clothes in front of Settanni made her feel like he was doing something wrong and I shouldnt allow it. She told the social worker that she was too scared to say anything. She also said that her father had become very angry and said, I want to kill that guy, for doing that to me, but he didnt really mean it.

Other CAST Interviews

A CAST social worker also interviewed Shannon, Settannis daughter. She denied that her father had done anything inappropriate to E.D..

E.D.s five-year-old sister, C.D., told the CAST social worker that she found out that Settanni had touched her sisters crotch the wrong way, and that he had done this one time.[5] After some preliminary questions, C.D. and the social worker engaged in the following colloquy: [C.D.]: Jay Jay is the one that did it. [] [social worker]: Jay is the one. Okay. [] [C.D.]: I found out. [] [social worker]: You found out. [] What did you see Jay doing? [] Youre pointing to that part what did you call that part on the girls body? [] [C.D.]: Crotch. [] [social worker]: The crotch. Okay. So was he doing something to somebodys crotch? What was he doing? [] [C.D.]: Like touching in the wrong way. [] [social worker]: Who whose crotch was he touching? [] [C.D.]: E.D.s. C.D. denied seeing Settanni touch any other girl the wrong way and also denied that he had touched her the wrong way. However, she also told the social worker that she had been with Settanni and E.D. when this happened, that it happened in Shannons room, and that E.D. was six years old when it happened.

Evidence of Prior Uncharged Sex Acts

The prosecutor filed a pretrial motion to admit evidence of two prior uncharged acts of sexual misconduct, pursuant to Evidence Code section 1108 (section 1108).[6] According to the motion, the prosecutor had evidence that Settanni had sexually abused his biological daughter and his stepdaughter, Kimberly. With respect to the incident involving Settannis biological daughter, the prosecutor claimed that she had been repeatedly molested by her father between 1972 and 1980 when the biological daughter was between the ages of four and twelve. The trial court ruled this evidence inadmissible, concluding that the probative value of the evidence was outweighed by its prejudicial effect, and that the presentation of evidence with respect to this victim would constitute a mini-trial on something that happened 27 to 34 years ago.

With respect to Kimberly, Settannis adult stepdaughter, the motion referred to an incident that allegedly occurred in 2003. According to the offer of proof, Kimberly would testify that one weekend during a visit with the Settanni family, she decided to spend the night. She slept on the floor of a playroom with her younger, half siblings. Nevertheless, sometime during the night, Settanni entered the room, put his hand up her shirt, and fondled her breasts. Kimberly would also testify that she felt his hand, woke up, and slapped it away, and that Settanni had said that he had been meaning to do that for years. Kimberly immediately reported the incident to her mother, and she later filed a police report.

The court found the later uncharged act sufficiently similar to the current crime such that the two demonstrated a pattern of sexually assaulting a female whose trust [Settanni] has gained. The court considered the probability of juror confusion between the two incidents to be slight, and found no undue prejudice from the admission of the uncharged act. Further, the court determined that the uncharged conduct was not unduly inflammatory and that the probative value of this evidence outweighed any prejudice.

The Trial

Prosecution Evidence

Trial began in January 2007. E.D., who was by then 12 years old, testified on direct examination that when the Settannis lived next door, she and her sister frequently played with the Settanni children at their family home. She remembered that Settanni was frequently home while Helen and the familys nanny were only sometimes home. She was six years old the first time Settanni touched her private parts. At this time, Settanni touched her boobs, butt and vagina. E.D. testified that Settanni touched her vagina over her clothes and sometimes rubbed her in a circular motion. He also put his hands down her pants and under her underwear, but his fingers stayed on the outside of her vagina. Shannon was present on some occasions, but E.D. never talked to Shannon about what Settanni had done because she was afraid of Settanni and concerned for her friendship with Shannon. However, E.D. conceded that Settanni had never threatened her, nor had he admonished her to not talk about it.

E.D. also remembered that Settanni inappropriately touched her once while she was sitting on his lap. This touch occurred in the Settannis garage. She stated that Shannon suddenly got up and left the garage. When they were alone, Settanni touched E.D.s vagina over her clothing. E.D. was not sure how many times Settanni touched her in this manner, but it was more than once and less than five times.

E.D. testified that the Settannis had moved about four times. E.D. recalled that Settanni had touched her not only when the families were next door neighbors, but also when the Settannis lived in at least two other houses. Although she stated Settanni touched her boobs on one occasion, she could not recall which house she was in when that happened. E.D. remembered one instance when the girls had planned a sleepover at Shannons home. During the night, Settanni touched her boobs while she and Shannon sat on the floor and watched television. He touched her skin and nipples, and he just rubbed. She spent the night and never talked about it. Settanni also touched her butt cheeks, over and under her clothing, and rubbed it in a circular motion. The rubbing did not hurt, but it felt weird and tickled. She testified he touched her in this manner more than 10 times. She also said that he once forced her to touch the clothing on top of his testicles and to rub them.

E.D. also remembered one occasion when she and Shannon were watching television in Shannons parents room. Settanni came into bedroom, sat down between them, and touched E.D.s boobs. The girls moved to the living room couch, and Settanni sat down with them on the couch. This time E.D. got up and moved to a chair before Settanni could touch her again. E.D. testified that she fell into the pool later that day. After E.D. got out of the pool, she went with Shannon to the laundry room. She testified, Shannon went to get me a towel, and he took off my pants and shirt. Then Shannon just helped me with the rest. Like she just helped me dry off and got some clothes for me. She said that Settanni had never removed her clothing before, and he did not touch her while she stood in her underwear waiting for Shannon to return. She testified that Helen was home that day, and that Settanni drove her home shortly after this happened. E.D. estimated that Settanni had touched her boobs more than five but less than 10 times.

E.D. explained that shortly before the pool incident, her fourth grade teacher instructed her class that if anyone touches you in the wrong way or does something to you that you know isnt right, you should tell someone. She testified that while she had heard her parents say the same thing, her teacher explained it a lot more. When the prosecutor asked her why she suddenly decided to tell her parents about what Settanni had been doing for a long time, E.D. testified, Because I just knew that it was wrong. I didnt want it happening anymore.

Propensity Evidence

Settannis stepdaughter, Kimberly, who was 27 years old at the time of trial, also testified for the prosecution. She stated that she first met and went to live with Settanni and her mother when she was approximately 10 years old. She left after she turned 15 because of issues with her own mother, not because of anything Settanni said or did. At this time, Kimberly stated that her mothers job required frequent travel, and that Settanni had primary responsibility for childcare. This meant that he was frequently home, and that he often worked from a home-based office.

However, in July 2003, about three and one-half years before trial, Kimberly stated that her stepfather touched her inappropriately. She explained that she had come to the Settannis home to celebrate her mothers birthday. She spent the night on the floor of their second floor playroom, and she slept in between her half brother and sister, the Settannis then four-year-old twins. Sometime after 1:00 a.m., she was suddenly awakened when Settanni put his hand down the front of her pajama top. He touched her right breast and said that he had been waiting years to do that. Kimberly slapped his hand away, and Settanni left the room. She thought she heard the sound of a can opening and the television being turned on downstairs.

After a few minutes, Kimberly woke her mother, and together they went downstairs to talk to her stepfather. Settanni, who was holding a can of beer, denied that he touched Kimberlys breast. He told Helen that he had been downstairs all night. Kimberly testified that he appeared outraged at her accusation and asked her, Why are you doing this? Kimberly felt nauseated by the incident. She promptly left the Settannis San Clemente home and drove back to her own residence in San Diego. She filed a police report about the incident four days later.

Defense Evidence

Settannis attorney, John Patrick Dolan, did not cross-examine E.D., nor did Settanni testify on his own behalf. The defense consisted of vigorous cross-examination of other prosecution witnesses and the testimony of several character witnesses, including Settannis friends, and the familys former nannies and other childcare providers. Helen and Shannon also testified on his behalf. All of the defense witnesses testified that they had never seen Settanni act inappropriately with a child. He was described as a loving, patient, caring, and normal father, and the witnesses universally discounted the accusations against him. The witnesses that had been former employees of the family also disputed evidence that Settanni was home during the day with any regularity. They further testified that E.D. had been an infrequent visitor at the various Settanni homes, and that when she was present she did not appear anxious or upset.

Helen testified that she learned about E.D.s allegations through a former neighbor, Shaun Hennessey, before Scot made the covert telephone call. She admitted that Kimberlys complaint had caused authorities to remove her children from the family home and instigate a separate legal proceeding. Consequently, when she heard about E.D.s accusations, she told her husband to move out even though she did not believe he had done anything wrong. However, Helen acknowledged that she had testified that she believed Kimberly in another legal proceeding. Helen explained that she had testified to her belief in Kimberly as a way of keeping her family intact. She also acknowledged that she and Settanni had filed a civil lawsuit against Kimberly to recoup the money they had paid for Kimberlys college tuition after Kimberly filed the police report.

Shannon, who was 13 years old at the time of trial, testified that she did not play with E.D. very often and that E.D. had been an infrequent visitor to their homes, although she admitted that E.D. had spent the night with her a couple of times. She remembered the day E.D. fell into the swimming pool. She testified that they went together into the laundry room after E.D. got out of the pool. Shannons mother stayed in the backyard while Settanni helped E.D. remove her wet clothes. However, Shannon said her father did not touch E.D., and that E.D. and Settanni were alone in the laundry room for only a couple of minutes. Shannon also remembered watching television downstairs that day, but said they moved upstairs at her mothers request. She said her father drove E.D. home and that she stayed at E.D.s house for a time before coming home.

Prosecutions Rebuttal Evidence

Shaun Hennessey testified that one of the defense character witnesses and former Settanni nanny, Sylvia Ladd, had told him that she had seen Settanni watching pornography in front of the children. Hennessey also testified that he had frequently seen Settanni at home during the day.

Defense Rebuttal Evidence

In her rebuttal testimony, Ladd stated that she told Hennessey only that Settanni watched a particular television program that she believed was inappropriate for children, not that she had seen him watching pornography in the presence of children.

II

DISCUSSION

Ineffective Assistance of Counsel

Settanni contends he received ineffective assistance of counsel. Specifically, he argues that but for Dolans failure to retain an expert on child-witness suggestibility and proper interviewing techniques, his failure to present such expert testimony at trial, and his failure to cross-examine E.D. after consulting with such an expert, there is a reasonable probability that he would have received a more favorable outcome at trial. We agree counsel should have investigated and consulted with an expert on child-witness suggestibility, and that counsels failure to do so amounts to representation below an objective standard of reasonableness.

Under the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, criminal defendants have a right to the effective assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. (In re Resendiz (2001) 25 Cal.4th 230, 239; Strickland v. Washington (1984) 466 U.S. 668, 687-688.)

In this case, the jury had but one issue to decide, i.e., E.D.s credibility in light of defendants character. As the district attorney aptly argued, So, what does this case boil down to, then? It boils down to credibility. [E.D.] is either telling you the truth, or shes absolutely lying. Its not both. It cant be both ways. She cant be telling some truth and not other truth. Shes either a flat-out liar, or shes telling you the truth. [] If you believe her, if you think that shes credible, you can find him guilty beyond a reasonable doubt. Further, the district attorney repeatedly contrasted what she described as E.D.s apparent lack of any motivation to lie with the more common-place motives of the defense witnesses, i.e., to protect Settanni, their existing relationship with him, or their future employment. As for E.D.s delay in reporting Settannis behavior, the district attorney explained E.D. simply liked Settanni and his family, and that she did not want to jeopardize her friendship with Shannon. However, as declarations submitted with Settannis writ petition suggest, Settannis attorney had knowledge of an area of expertise that could have provided other reasons for E.D.s accusations and delay in reporting.

Katherine Okla, a licensed clinical psychologist in Michigan with a Ph.D. in clinical psychology, stated that she had been qualified as an expert witness in the area of forensic interviewing techniques, memory, suggestibility and patterns of disclosure in child sex abuse cases approximately 70 to 100 times, that she has testified in court proceedings in Michigan, Iowa, Illinois, North Dakota, Ohio, Oregon, and South Dakota, and that [t]he majority of [her] testimony has been as an expert in forensic interviewing technique as to children aged five to fifteen and as to their suggestibility. Although she maintains a private practice in Michigan and works at the University of Michigan Family Law Clinic, Okla stated the bulk of my work is as a consultant in the area of memory and suggestibility.

Okla reviewed the videotape of E.D.s CAST interview, a transcript of E.D.s trial testimony, as well as that of her parents, and the factual summary prepared by Settannis appellate counsel. Based on this review and her experience and knowledge in the area of child witness suggestibility, Okla stated that she would have been able to testify to the following: a. A body of scientific research exists which has been conducted in the fields of early childhood development, psychology and sociology on suggestibility of children and factors influencing the accuracy of child witness reports; [] b. There are numerous peer reviewed articles and books in this field; which are generally recognized in the scientific community; and that I am a recognized expert in this area; [] c. Developmental and psychological principles are known which explain how child interviewers and other social factors can and do influence children to make false or inaccurate statements concerning events to various interviewers and in court.

In Oklas opinion, the record on appeal establishes multiple sources of taint in this matter which undermined the reliability of [E.D.]s testimony. These sources of taint, according to Okla, were biased interviewers, E.D.s parents, [s]ocial pressures and the environment, E.D.s therapist, and television programming. Okla found [m]ajor red flags in her review of the record, including inconsistencies in E.D.s various recitations of the events, her lack of detail, and her inability to provide specific times, seasons, or days when the abuse occurred. Okla characterized E.D.s reports of abuse as generic. Further, she believed the CAST interviewer had failed to conduct the interview with E.D. under well-established professional protocols. In her opinion, the interviewers failure to question the existence of prior abuse in E.D.s family and other motivations E.D. may have had to lie undermined the reliability of the results. She also took issue with the CAST interviewers failure to ask E.D. for a practice narrative about a neutral event, which Okla stated tests a childs language, mental and emotional function, memory, [and] attention to detail, her failure to ask E.D. to give a free narrative, which means the interviewer asks the child to tell everything that happened without leaving anything out, from start to finish, and the interviewers use of leading questions.

Okla furthered averred that even professionals cannot reliably distinguish between true and false reports after a child has had a series of misleading interactions with adults, and that a repeated false report may take on additional qualities that may make it more believable than the truth. Okla concluded, based on her review of the trial record and her expert knowledge on the subject, that E.D.s statements could have been prompted by her need for attention, the desire to exact revenge, or the influence of the media on normal childhood fears.

Settannis trial counsel, Dolan, averred that he is a certified criminal law specialist with approximately 30 years of experience. He also submitted a declaration in conjunction with Settannis writ petition. According to his declaration, Dolans 30 years experience includes over two hundred criminal trials and related criminal matters, including approximately 30 cases involving sex crimes. Dolan explained that he became involved in the instant case in 2005 when Terence J. Shannon asked him to be co-counsel on the case. They worked together on the case from late 2005 until April 2006 when Attorney Shannon was disbarred and unable to continue as lead counsel. Dolan took over as lead counsel in April 2006, and from then on he diligently prepared for trial, including reading approximately 1,000 pages from a companion child dependency case.

Dolan admits that on several occasions, Mr. Shannon advised me that a witness on the childs behavior on the CAST tape would be able to testify that the child appeared to be untrustworthy due to furtive eye movement and constant physical movement. However, Dolan states, Mr. Shannon did not identify a particular expert in this field. Dolan admits he did not conduct further investigation into the possibility of retaining this type of expert. He states, In retrospect, I believe it could have been useful and helpful to the defense if such a witness had been called and ultimately consulted. I have reviewed the declaration of Dr. Katherine Okla, Ph.D. . . . and am aware of what the nature and scope of her testimony would have been and its application to this case in terms of providing the jury with information from which it could have concluded the child witness testimony in this case was unreliable. Dr. Okla.s testimony would have been very helpful to the defense.

Dolan explained his failure to cross-examine E.D. as a choice [] based on Mr. Settannis wishes as well as my concern that the prosecutor not be provided an opportunity to rehabilitate [E.D.] on redirect as to the digital penetration issue. However, Dolan admits that his decision was made without benefit of having consulted with a child witness suggestibility/forensic interview expert such as Dr. Okla[,] and further states that such a consultation would have revealed fruitful areas of cross-examination that would not have implicated the penetration issue. Dolan suggests he would have asked E.D. where she learned the terms victim and sexual abuse[], if she had talked to Kimberly before making her complaint, and used the techniques suggested by Okla to explore E.D.s credibility and that of her parents. Dolan concludes his declaration by stating, Had I consulted a child witness suggestibility expert, I would have learned of factors that I could have also developed in cross-examination of both of [E.D.]s parents which would have further contributed to a defense of suggestibility and contamination for the expert to rely on in testifying. Thus, Dolans declaration suggests that there is no material dispute regarding counsels failure to conduct a reasonable investigation into child witness suggestibility, but contends his decision to forego cross-examination of the prosecutions lead witness was based on tactical considerations.

Notwithstanding this declaration, the Attorney Generals return to the petition was accompanied by a second declaration from Dolan. In his second declaration, Dolan acknowledged that Mr. Shannon had mentioned there were experts available to testify about [E.D.]. However, Dolan then states that Mr. Shannon never offered that a child witness suggestibility expert was available, and he states Mr. Shannon did not respond to subsequent inquiries on the topic. Dolan acknowledged that his first declaration included this statement, I did not ask Mr. Shannon for the identity of this witness[,] but now he claims, [a]dmittedly and regretfully, I did not thoroughly read the contents of paragraph 4 [of his prior declaration] for accuracy . . . . Dolan then declares that only his recollection of events as presented in the second declaration is accurate.

Dolans revised recollection of events is most interesting. For instance, Dolan reveals that he contacted Lucy Keele, Ph.D., an expert in speech communications and former president and founding member of the Jury Consultant Association, to review the videotape of E.D.s CAST interview. He states that Keele commented on [E.D.]s demeanor, which lead to discussions about the possibility of presenting a communications expert to testify . . . . Dolan states that Keele did not know of anyone specifically working as an expert in this area[,] and Dolan asserts that he had no personal experience with such an expert. While Dolan considered using Keele at trial, he decided against it because doing so would remove her from her role as litigation consultant. Then Dolan declares, Additionally, there was the matter of the unfavorable polygraph results.

The remainder of Dolans second declaration is an explanation of how his knowledge of Settannis failure to pass a polygraph that had been administered in conjunction with the preparation of a section 288.1[7] pre-plea report affected his decision to consult expert witnesses. Apparently, Dolans participation, at least prior to Mr. Shannons disbarment, was, as he states, directed at disposition of the case. Consequently, Dolan says that he focused his efforts on the digital penetration allegation because such a finding would have precluded the court from granting probation in the event of a plea. As Dolan states, I reviewed the CAST interview tape and determined that [E.D.] never said that Mr. Settanni had digitally penetrated her. At the preliminary examination, Detective Caballero testified under Prop. 115 that [E.D.] said she had been digitally penetrated by Mr. Settanni  . . . . By my estimation, [E.D.]s statement during the CAST interview was misinterpreted and categorically transformed into a statement about digital penetration by the detective during the Prop. 115 prelim. Therefore, my focus in defending the case was to show that digital penetration had not been established in the first interview, the CAST interview was vague on the issue and the detective had merely put her spin on the evidence to prove up the digital penetration-related allegation. If the digital penetration allegation was false, potentially the other charges also could be shown to be false. Dolan asserts that at this point in the case, he anticipated cross-examining E.D. if the case went to trial. As Dolan arranged for the section 288.1 report and other reports in anticipation of a plea, he states that he felt that even if the case did not settle, there was no evidence of digital penetration and the allegation was subject to dismissal, a jury could find Mr. Settanni not guilty of the substantive counts, and if Mr. Settanni was convicted, he would be a suitable candidate for probation.

Apparently, things significantly changed when Dolan received the unfavorable polygraph results. From then on Dolan believed that he was put into an ethical dilemma by his clients performance. Dolan believed that he could not retain a communications expert and withhold the results of the polygraph examination because no expert could truthfully testify that E.D. was lying. This perceived ethical dilemma influenced his decision to forego calling Dr. Martha Rodgers, the doctor who had prepared the section 288.1 report. Rodgers had stated that Mr. Settanni did not meet the profile of a pedophile and that any alleged sexual misconduct could have been alcohol driven behavior. However, upon receipt of the polygraph examination results, Dolan determined he could not call Rodgers as a witness at trial.

Moreover, Dolan asserts that expert testimony addressing E.D.s behavior during the CAST interview was unnecessary. The videotape showed E.D. fidgeting and looking around throughout the interview. As Dolan put it, the interview depicted the obvious, and he decided to argue that her behavior could be reasonably attributed to confabulation and nervousness without the benefit of expert testimony. Dolan states, Rather than release the information of the unfavorable polygraph result, present Dr. Rodgers opinion that [E.D.] had confabulated, and risk opening the door to the other parts of her report that would then certainly have been prejudicial to the defense, I did not present Dr. Rodgerss report or testimony. For that matter, I did not believe that I could present any expert on the communications issue because I would have been bound to turn over the unfavorable polygraph results that would have been extremely prejudicial to the defense.

Dolan also asserts that he prepared for a hotly debated and anticipated battle of the experts over child abuse and sexual assault accommodation syndrome, consulting with a nationally recognized expert in this area, but this issue fizzled when the prosecution decided against presentation of its expert. Further, Dolan explains, Notwithstanding the absence of experts on the issue of child abuse and sexual assault accommodation syndrome, the defense presented at trial centered on the issue of [E.D.]s delayed reporting of the alleged molestations as well as her credibility. As he expected, the digital penetration evidence failed to materialize during the prosecutions case, and Dolan, in consultation with his client, said he decided to leave [E.D.]s direct testimony alone rather than take a risk.

In conclusion, Dolan states, I worked very hard on this case. I felt that Mr. Settanni would benefit from foregoing cross-examination of [E.D.]. This tactical approach was fruitful to the extent that the no probation allegation at issue was dismissed. The results of the polygraph examination presented a difficult situation. Rather than put those results in issue by calling an expert to testify to [E.D.]s credibility, I made the tactical decision to let the CAST interview tape speak for itself. In my opinion, a juror could reasonably find that the questions asked during the interview and [E.D.]s version of events was highly suspect. Despite my efforts in defending the case, the jury believed [E.D.]s version of events. In retrospect, expert testimony concerning [E.D.]s CAST interview may have been helpful, but I cannot speculate as to how it would have affected the outcome of the case.

Dolan characterizes his decision to forego expert testimony addressing E.D.s demeanor during the CAST interview and his decision to not cross-examine the prosecutions main witness as reasonable tactical decisions based on his assessment of the case. We find the record does not support his characterization. Although tactical decisions are accorded great deference by reviewing courts, (In re Avena (1996) 12 Cal.4th 694, 722), deference is not abdication. E.D.s direct testimony, which was vague as to time, place, and particulars, should have been subjected to cross-examination. There was little risk she would have provided any further damaging evidence regarding the digital penetration allegation without undermining her own credibility.

Moreover, as noted by Kathleen Coyne, a San Diego County deputy public defender with over 26 years experience (20 in California) and the 1993 Public Defender of the Year and Trial Attorney of the Year, a recipient of the Skip Glenn and E. Stanley Conant Awards, and lead counsel in a case involving 53 counts of lewd acts with a child that included allegations of ritual abuse, child murder, and animal sacrifice and numerous other cases involving child abuse and child molestation, opined that there could be no sound reason for Dolans failure to investigate the availability of an expert in the area of childhood suggestibility. As Coyne states, Dolans unexpected shift from associate counsel to lead counsel on the case could be part of the problem. Nevertheless, as explained by Coyne, Dolans failure to investigate this well known area of weakness in the area of child molest accusations to be a grave departure of [sic] the standard of care and likely affected the outcome of this trial. Coyne points to existing scientific research on the topic of child witnesses in abuse cases, the development of CALJIC jury instructions addressing the issue (former CALJIC No. 2.20.1, now CALCRIM No. 3.30), and the fact that such testimony had been the subject of published case law. Furthermore, while Dolan is correct in stating the videotape speaks for itself in some respects, Okla has provided empirical evidence that children do not always tell the truth and that they have motivations to conceal truth peculiar to their youth and immaturity. As she asserts, these motivations are the proper subject of expert testimony, testimony which in this case would have aided the jury in evaluating E.D.s credibility. Therefore, we agree with Coynes conclusion, it is reasonably likely that if such a witness had been called the outcome of the trial would have been different since the case was predicated entirely on the accuracy and believability of the child witness.

At the very minimum, Dolan should have contacted and consulted with such an expert before deciding that expert testimony specifically addressing child-witness suggestibility was unnecessary at trial. The CAST interviewer did ask leading questions and she suggested responses at various points in the interview. While it is true no California case has yet to directly address the admissibility of expert testimony in the area of child-witness suggestibility, Dolan was aware of this area of expertise and he should have contacted such an expert regardless of whether the expert was called as a witness at trial.[8] Although the Attorney General is correct in stating that the trial court may have excluded this evidence had it been proffered, Dolan had a duty to investigate the issue before making his ultimate decision to forego such expertise.[9]

Furthermore, we reject Dolans argument that his decision was justifiably influenced by knowledge of his clients unfavorable polygraph examination. Evidence Code section 351.1 renders inadmissible evidence concerning polygraph examinations, or any reference to an offer to take, failure to take, or taking of a polygraph examination. And, under Business and Professions Code section 6068, subdivision (e)(1), an attorney must maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. Although Dolan was precluded from knowingly presenting false or misleading evidence (See Bus. & Prof. Code, 6068, subd. (d); In re Alcox (2006) 137 Cal.App.4th 657, 667), he was not precluded from consulting with a child-witness suggestibility expert in an effort to prepare for trial, preparation that should have focused on the videotape of E.D.s interview and not Settannis performance on a polygraph examination.

In evaluating counsels performance, we assess both the reasonableness of counsels decisions and the reasonableness of the investigation that underlay each decision. [B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation. [Citations.] (In re Thomas (2006) 37 Cal.4th 1249, 1258.) Here, we cannot say Dolan made a reasonable tactical decision based upon an adequate investigation. Of course, the ultimate question is one of prejudice because even assuming Dolans representation fell short of professional norms, Settanni must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citations.] (Thomas, supra, 37 Cal.4th at p. 1265.) However, we believe Settanni has met this burden of proof here.

There is no doubt Dolan assumed the role of lead attorney under extraordinary circumstances. Nevertheless, once he made the decision to take on this case as lead trial attorney, it was his duty to vigorously pursue every reasonable avenue in defense of his client. He admits Settannis former lead attorney mentioned the possibility of retaining an expert in child-witness suggestibility, and he asserts that he did consult with other experts in the area of assessing witness testimony. However, an expert in the field of child-witness suggestibility would have provided information not available to other more general experts. Although Dolan vigorously cross-examined other prosecution witnesses, he neglected to test the credibility of the most important prosecution witness. Moreover, whatever emphasis he did place on weaknesses in E.D.s testimony and behavior during his closing argument was made without the benefit of readily available expert testimony in this field, evidence he agrees would have been helpful to his client.

We also acknowledged that [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time . . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citations.] (In re Andrews (2002) 28 Cal.4th 1234, 1253-1254.) However, there is no material dispute regarding counsels failure to conduct a reasonable investigation into the area of child-witness suggestibility. Counsel admits awareness of the field, that he discussed the field with prior counsel, and that he spent some time in consideration of the issue. He simply states that based on his clients failure to pass a polygraph examination and a discussion with experts in a related field, he decided to focus on other issues. Under the circumstances, we cannot agree with Dolan that he made a reasonable tactical decision. In addition, because the evidence of Settannis guilt was not overwhelming, and because the prosecution heavily relied on the credibility of the child witness, an expert on child-witness suggestibility would have provided a much needed counter-punch to the prosecutions repeated position that E.D. had no known reason to lie.

In this case, counsels failure to conduct any investigation into child-witness suggestibility amounts to ineffective assistance of counsel. The judgment is therefore reversed and the matter remanded for a new trial or other appropriate proceedings. Our resolution of the petition for writ of habeas corpus moots any discussion of the issues raised in Settannis appeal.

III

DISPOSITION

The petition for writ of habeas corpus is granted. The appeal is dismissed as moot.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

IKOLA, J.

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[1] All further undesignated statutory references are to the Penal Code.

[2] We refer to the complaining witness and her sister by their initials and withhold their parents last name in accordance with the courts protective nondisclosure policy concerning minors and the victims of sex crimes. We intend no disrespect.

[3] At trial, the deputy testified that it was standard procedure in child abuse cases in Orange County to limit interviews with child sexual abuse victims in an effort to minimize the number of contacts with law enforcement personnel.

[4] The tape recording was played for the jury, and a transcript of the recording provided for the jurys review. All further references to this conversation are taken from a copy of the 29-page transcript provided to the jury. The symbol *** denotes unintelligible conversation.

[5] The record is unclear whether E.D.s little sister saw or heard about this incident. The social worker asked the child if something had happened. The girl replied that [s]omebody touched (inaudible).

[6] Evidence Code section 1108, subdivision (a) provides, in pertinent part, as follows: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

[7] Section 288.1 provides, Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards s