Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR211674
Pollak, J.
Defendant Paul Patrick Jolivette appeals from his conviction on three counts of rape and multiple other offenses committed over a period of approximately nine months during which he repeatedly molested the 13-year-old daughter of his wife’s half sister. He challenges the sufficiency of the evidence for the conviction of displaying harmful material to a minor and argues that the trial court erred in failing to give a unanimity instruction and in denying his motion for a new trial. Although the evidence presented in support of the new trial motion is troublesome, we shall affirm the judgment and leave any remaining questions for consideration upon application for a writ of habeas corpus.
Background
The following evidence was introduced at trial. Elizabeth R. testified that in October 2003, she and her daughter A. were living in Fairfield with her half sister Veronica and Veronica’s husband, defendant, and their two children who were both under the age of two. Elizabeth was then working as a medical technician at an assisted living center.
For clarity we refer to the two sisters by their given names.
On October 26 at 2:00 p.m. Elizabeth went to work accompanied by A. Sometime between 8:00 and 9:00 p.m., Elizabeth lost track of A., and she and her coworkers searched for her. After approximately an hour and 15 minutes A. returned. Elizabeth “noticed that [A.] was clearly upset. She had been crying.” Elizabeth continued, “She wouldn’t look at me. She kept her head down. I kept asking her where she was. I was upset. And when I first approached her I was clearly upset. I kind of yelled at her, asked her ‘Where were you? You never take off like this. . . .’ She wouldn’t answer me.” Eventually, A. told Elizabeth that “her uncle Paul had come to pick her up.” When Elizabeth asked why A. had not told her that she was leaving, A. said that “ ‘He wouldn’t let me.’ ” A. then told her that defendant “had taken her up into the golf course in the hill, and he had raped her.” Elizabeth called the police.
Elizabeth testified that she and A. had a close relationship, and that A. “was open and up-front with [her] about what was going on in her life,” but that before October 26, 2003, A. did not tell her about any molestations. However, the previous summer Elizabeth noticed that A. had become “angry and depressed” and “was very adamant about moving out.” Elizabeth testified A. later told her that she had not said anything because defendant “had threatened to hurt her and myself. She was afraid for both of us.”
A. testified that she lived in the house with defendant for “about a year and a half.” The first time he molested her was “probably March” of 2003. She testified, “I was in my room and he called me out to watch a porno with him.” When A. arrived in the living room, “he had a porno on.” When asked what she saw on the television, A. stated she watched for “about 30 seconds” and saw “[t]wo girls having—doing—sex.” She said they were wearing no clothes. Defendant then “just told me if I wanted to do that what they were doing. And I said, ‘No.’ Then he’s all, ‘Let’s do the nasty.’ And I said, ‘No.’ I went in the room.” When asked if defendant had touched her, she answered, “He touched my leg. . . . He was just rubbing it. . . . Then he was trying to go between my legs. . . . [¶] . . . [¶] Then I got up, I went to my room, and my little . . . cousins . . . were there, they had a movie on for them. I sat down and watched it with them. Then he told them to get out. That’s when he began to finger me.” She testified that “he kind of sticked his finger in me and he kept sticking his finger in me.” Defendant then took his pants off and A. “tried to go, but he didn’t let me. Then he stuck his penis in . . . my vagina.” A. “screamed and . . . tried pushing him off” but was unsuccessful. A. testified that defendant stopped when Veronica arrived home, but she told the detective who interviewed her after the October incident that he had stopped because the baby was crying. Defendant put his pants on and left. “Then he came back and said, ‘If you say anything, I’m going to hurt you.’ ”
A. estimated that after this incident, defendant molested her “about 30 times.” These incidents occurred “[a]t Veronica’s house or at his house in Fremont in his car and one time at his sister’s house.” When at Veronica’s house, Veronica was home, and A. would be “[i]n my room asleep.” The next incident occurred approximately two weeks after the first. Defendant climbed through A.’s window while Veronica was in her room watching television and the younger children were asleep. Defendant said to A. “Let’s do the nasty.” She told him “no,” and he repeated the phrase. A. testified that “he did like a grin grinding his teeth. Then that’s when he stuck his penis in my vagina.” This occurred on the floor. A. did not say anything, nor did defendant. A. “tried to push him off, but it didn’t happen.”
A. testified that at one point during that period she went to defendant’s house in Fremont because defendant and Veronica had been in a fight. Defendant wanted to see the children but Veronica did not want to see him. A. testified that “she volunteered me to go just so I could be with the kids and also so she can make sure the kids would come back to her.” After spending the night at defendant’s house, A. was changing the diaper on the youngest child, who was not quite one year old. Defendant told the baby to “go downstairs with [his sister]. So he did.” Defendant then “made me take my clothes off and made me lay on the floor. He took his penis out and stuck it in my vagina.” A. asked, “ ‘Why are you doing this. Just stop.’ I was just telling him to stop and he wouldn’t. . . . I was trying to push him off. . . . [¶] He would just say, ‘Stop. You know you like it.’ ”
Another assault occurred at the Fairfield home of defendant’s sister, Debbie. A. described herself as “really good friends” with Debbie’s daughter Alyssa. On one occasion Alyssa invited A. to spend the night. A. took the baby with her. “So Alyssa wanted to go to Burger King to get something to eat. And [defendant] was there. And—that’s when he took me upstairs to a bathroom and said, ‘Let’s do the nasty.’ So he did the nasty.’ ” A. said that she was inside checking on the baby and defendant told her “Go to the bathroom.” A. replied, “I don’t have to go to the bathroom,” and defendant said, “Just go to the bathroom.” A. “went in the bathroom—that’s when he—stuck his penis in my vagina.” The door to the bathroom was open when this occurred. The baby, who was around five years old, and “a girl named Couchi” were in the house during the assault. When defendant came into the bathroom after A., she stated that “he took my pants off, and my underwear, then that’s [when] he took his penis out.” A. was “on the floor by the toilet” and defendant was on top of her. She did not say or do anything during the assault, which lasted approximately two minutes. Afterwards, defendant told A. “that if I said anything that I would regret it.”
A. later identified Couchi as a 45-year-old woman.
A. testified that she was afraid of defendant while she was living with him. She described the October 26 incident as follows. She was waiting for her mother before they left the assisted living center for the night. The receptionist asked her to feed the cats outside. As she was doing so, defendant pulled up in his car and called her to him. He asked her to go “for a ride real quick.” A. declined, stating that her mother would be worried. Defendant persisted, “Well, it’s going to be real quick. We are not going to leave the grounds.” A. again said “no,” and defendant said, “Just get in the car.” She complied, but told him that she would have to tell her mother where she was going. Defendant again said, “It’s just going to be real quick.” A. got in the car and defendant drove off the grounds and parked in an isolated location. A. stated that defendant “put his hand on my breasts, then he began kissing me.” A. told him to stop, and to take her back but he said, “No.” A car drove by and defendant said, “This is not a good place,” and drove to a golf course. Once there, defendant searched for a condom and told A., “You know the process. Go hop in the back seat and take your clothes off.” She told him she did not want to. A. stated that defendant then, “took my shoes off. Then he took my pants off, then my underwear. Then they were just on one leg. And then he got in the back seat with me. And that’s when he put the condom on and he stuck his penis in my vagina.” She tried to push him off but could not. She began to cry. The assault had lasted approximately six minutes when the lights of a nearby car came on. Defendant told A. “Stay down. Don’t get up.” He removed the condom and threw it out of the car window. When he began to drive away, A. sat up and defendant said “I thought I told you not to get up.” She lay down again, then moved to the front seat where she dressed. Defendant told her “Don’t say anything. You are going to regret it.” He dropped A. off at her mother’s work, where she remained outside “for about a minute . . . because I was trying to fight the tears off my eyes and trying to calm down.” A. later testified she remained outside between five and 15 minutes.
When she returned to the building, A. told her mother that she had been feeding the cats. Her mother responded, “You are lying because I had people out there looking for you, and where were you?” A. walked away, but her mother followed and asked again where she had been. A. began to cry and told her mother, “I was talking to [defendant].” Her mother asked where, but she would not answer. Eventually, A. told her mother what had happened. Her mother called the police who interviewed her and took her to the hospital where she was examined. A. stated that this was the first time she told her mother about the sexual assaults, and that she had not said anything earlier because she was afraid of defendant.
Liberty Rosario testified that she was working on the evening of October 26, 2003. On that night, Elizabeth brought A. to work with her. After A. had been missing for some time, Rosario looked up and “saw A[.] in the hallway outside in front of a truck.” She described it as an SUV, a “huge one,” “like a Tahoe or Suburban” that was “a light color . . . either white or light, light silver.” Rosario did not see A. get out of the truck, but she saw the truck leave. A. was crying and would not talk to Rosario or her coworker, Samantha Ayala. Rosario told the police that A. appeared “very nervous,” and that she did not begin to cry until Elizabeth started questioning her.
Ayala testified that she was also working the night of October 26, 2003. After receiving a call on her walkie-talkie that A. had been found, she saw “a pickup truck leaving my facility from the . . . wing area of the building.” She described the truck as “an early 2000 model, approximately, Chevy Silverado pickup truck.” She later clarified that the vehicle was “[a]n SUV. . . . My father owns a Durango, and I call his a truck, to me all of them are trucks, but it was an SUV.” She asked A. “how are you doing?” and A. was “kind of hesitant.” Ayala testified, “That’s when I knew something was wrong with her. She never ever, ever, ever is fidgety with me. So I knew something wasn’t right.” Ayala asked A. where she had gone and A. replied, “ ‘My uncle.’ . . . ‘We just left. Went for a drive. We just left.’ ” A. was “[v]ery stand-offish, very antsy at first, very fidgety.” A. seemed upset and like she was trying not to cry. She did not tell Ayala what had happened.
The nurse from the Sexual Response Team who examined A. testified that A. told her defendant had held her down and put his penis in her vagina. She told the nurse that “ ‘He got on top of me. I kept telling him, no. That’s when he put it in. I tried to push him off. I was trying to push him off with all my strength. A car pulled up with the lights on,’ and [defendant] said, ‘Whatever you do, don’t make a noise.’ ” When the nurse examined A. she found “redness on her cheek or near her lips, in that area.” The nurse noted on her report, “Whiskers rubbing? suspect’s [sic] skin.” A. told the nurse that defendant used a condom during the assault. A “was very tearful, seemed afraid” during the exam. The nurse performed a genital examination. She testified that “over 50 percent of the time there are no injuries in the sexual assaults . . . If there is injury there, usually they are very, very small injuries, microabrasion, microtears. They are very hard to see with the eyes.” She explained that she used a magnifying tool to see these small injuries. The nurse observed “erythema, the word for redness on her . . . hymen [and] labia minora. She had a pretty significant laceration on her superior fourchet.” The cut was still bleeding at the time of the examination, which indicated to the nurse that “it was fresh.” The nurse testified that the injuries were consistent with the history that A. provided. She also combed A.’s pubic hair for evidence.
Sergeant Bunting of the Fairfield Police Department testified that on the night of October 26, 2003 he responded to the call regarding A. He met A., Elizabeth, Ayala, and Rosario in the parking lot. Both A. and Elizabeth were crying and “visibly shaking.” Bunting was not able to speak with A. in the parking lot, but did speak to Elizabeth. He asked Elizabeth to take A. to a hospital to be examined by a Sexual Response Team nurse. Elizabeth described defendant’s truck as a 1999 “GMC Yukon, gray in color with . . . magnetic construction signs on each side,” and also described defendant. Bunting interviewed A. at the hospital. Bunting repeated A.’s account; she was very upset while relating these events and “once or twice” Bunting “took a break just for a few minutes to let her be alone with her mom, calm down.” A told Bunting that defendant had assaulted her on other occasions “and that he told her he would kill her and her mother if she told anybody.” Bunting did not ask A. about these other occasions because she “was very, very emotional.” After Bunting interviewed A., he went to defendant’s home to arrest him. When he arrived, he saw the car that Elizabeth had described parked in the driveway.
Defendant’s car was impounded and the police collected clothing from his house. Bunting sent officers to investigate the area where A. testified she had been raped and instructed them to look for urine stains, a condom, and a condom wrapper. The officers did not find a condom or condom wrapper, nor did they find a muddy towel although Bunting testified A. told him that after removing her shoes defendant wiped mud off of them.
Detective Cooper of the Fairfield Police Department testified that he interviewed A. on October 30, 2003. Cooper repeated what A. had told him about the first assault and about the assault at Debbie’s house. He also testified that defendant’s car was impounded in the early morning on October 27, 2003, and that after obtaining a search warrant the police searched the car but did not find any condoms, nor were any stains or other evidence of blood, semen, vaginal fluid or saliva found in the car.
Defendant called Alyssa, who was 16 years old at the time of trial. She testified that in 2003 she and A. were friends but were no longer so. She testified that in the past she regularly spent nights at A.’s house and when she did the two would on occasion sneak out of the house. “We sometimes would get picked up, go to parties . . . .” A. would “hang out with boys.” Sometime in the fall of 2003, Alyssa saw A. get into someone’s car after she snuck out. Alyssa stated that she and A. were no longer friends because she believed A. had falsely accused defendant, who is Alyssa’s uncle. On cross-examination, Alyssa stated she could not have gone to Burger King on the day A. said defendant attacked her because she did not drive. She stated that she was home the entire time that A. was in the house.
Derrick Reina testified that from November 2003 until May 1, 2004 he rented a room in the Fairfield house from Elizabeth. While living there, at least twice he became aware that A. was not home in the middle of the night. He also witnessed a fight between A. and her mother about A. sneaking out of the house. On one occasion Reina was aware that Veronica woke Elizabeth to tell her that A. was not in the house. Elizabeth dressed and went out to find A. She located her approximately three blocks from the house; a neighbor had called, saying he “saw A. with some boy at the corner.”
Amapara, another sister of defendant, testified about an occasion in fall 2003 when their sister Debbie had gone to Mexico and Amapara cared for Debbie’s children in Debbie’s house. Several relatives including defendant, his two small children, A., and Alyssa, came to the house. Amapara stated that she never saw A. and defendant go upstairs, nor did she “hear any funny noises upstairs that day.” She did not notice that A. was withdrawn, sad or crying.
On February 4, 2004, defendant was charged by information with one count of exhibiting harmful matter to a minor with the intent of seduction (Pen. Code, § 288.2, subd. (a)); one count of sexual penetration by a foreign object with force and violence (§ 289, subd. (a)(1)); three counts of forcible rape (§ 261, subd. (a)(2)); one count of forcible oral copulation (§ 288a, subd. (c)(2)); one count of false imprisonment by violence (§ 236), and one count of performing a lewd act on a child (§ 288, subd. (c)(1). Pursuant to section 667.5, subdivision (b), the information alleged a prior conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) and convictions for felony spousal abuse (§ 273.5, subd. (a)) and grand theft (§ 487).
All statutory references are to the Penal Code unless otherwise indicated.
Prior to trial the prosecution dismissed the count of forced oral copulation. The jury found defendant guilty of the remaining counts. Defendant waived a jury trial concerning the prior convictions, and the trial court found that all allegations of priors were true.
Defendant filed a motion for a new trial, which the court denied. The basis for the motion will be described in the discussion below.
Defendant was sentenced to the midterm of six years for the count of penetration by a foreign object, a consecutive eight months (one-third the midterm) for exhibiting harmful material to a minor, the midterm of six years for each count of rape, to run fully consecutively pursuant to section 667.6, subdivision (d), consecutive terms of eight months (one-third the midterm) for false imprisonment and for performing a lewd act on a child, plus one year under section 667.5, subdivision (b) for the prior prison term, for a total of 27 years in prison. Defendant timely appealed.
We note that the abstract of judgment incorrectly reflects the sentence that was imposed. The abstract shows eight-month terms for the three rape counts.
Discussion
Exhibiting harmful material to a minor
Defendant first argues that the evidence did not support his conviction for exhibiting harmful material to a minor.
Section 288.2, subdivision (a) provides that “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes [or] exhibit[s] . . . any harmful matter, as defined in section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense . . . .” Section 313, subdivision (a) defines “harmful matter” as “matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole depicts or describes in a patently offensive way sexual conduct and which, taken as a whole lacks serious literary, artistic, political, or scientific value for minors.”
In People v. Hsu (2000) 82 Cal.App.4th 976, 992 (Hsu), the court noted that the definition of harmful matter in section 313 “essentially tracks the three-pronged test for obscenity articulated in Miller [v. California (1973) 413 U.S. 15], 24: ‘[1] whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [3] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ However, section 313 does not specifically define ‘sexual conduct’ (see second prong), and it adds ‘to minors’ at the conclusion of the third prong.”
The court in Hsu concluded that this definition is not unconstitutionally vague because “the meaning of sexual conduct for purposes of the acts proscribed by section 288.2, subdivision (b) ‘can be objectively ascertained by reference to common experiences of mankind,’ ” and because “the meaning of sexual conduct can easily be made certain by reference to other statutes in companion chapters of the Penal Code dealing with the related subject of obscenity.” (Hsu, supra, 82 Cal.App.4th at p. 993.) Here, defendant does not attack the validity of the statute, but challenges the adequacy of the evidence to support his conviction. The only evidence of “harmful matter” was A.’s testimony that defendant called her into the living room “to watch a porno with him,” and that when she entered the room she saw “[t]wo girls having—doing—sex,” and that they were naked. The Attorney General argues that the evidence was sufficient, but points to no additional evidence that more fully described the content of what was shown to A.
The sufficiency of this evidence is a close question. Nudity and sexually graphic scenes are to be found in many movies that undoubtedly cannot be classified as obscene or pornographic, and there is little in the record from which to judge whether there was any serious literary or redeeming social value in what was on the television screen that defendant showed A. Nonetheless, to paraphrase Justice Stewart, one knows pornography when one sees it. (Jacobellis v. Ohio (1964) 378 U.S. 184, 197 (conc. opn. of Stewart, J.).) That A. described what was on the screen as “porno” is itself some evidence that the matter on the screen was pornographic. (See Evid. Code, § 800 [permitting lay opinion testimony where the opinion is “[r]ationally based on the perception of the witness; and [¶] . . . [h]elpful to a clear understanding of his testimony”]; see also Osborne v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 112 [“Opinion testimony of a lay witness may be particularly helpful when the matters observed by the witness may be too complex or subtle to enable the witness accurately to convey them without resorting to the use of conclusory descriptions”].) In People v. Hale (2005) 133 Cal.App.4th 942, the defendant argued that a warrant was improperly based on conclusory statements that the defendant had shown “pornography” to minors. The court disagreed, noting that the conclusion that the defendant had shown minors pornography “is supported by [defendant’s] question to the younger boy whether he wanted to watch ‘boy on boy, girl on girl or boy on girl’ as well as [defendant’s] comment regarding the man’s penis displayed on television. . . . [T]he magistrate did not need a more particular description of what was displayed in order to reach the conclusion the movies were probably pornographic.” (Id. at p. 946.) The court also rejected the argument that even if the films were pornographic, they were not necessarily harmful matter as defined by section 313, subdivision (a). The “actions as described in the statement of probable cause paint a picture of a pedophile who is using movies to arouse minors to seduce them. It is reasonable to conclude that the images [defendant] showed the boys were consistent with this purpose.” (Ibid.)
Moreover, “the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity . . . .” (Ginzburg v. United States (1966) 383 U.S. 463, 465-466.) The fact that defendant asked if A. would engage in the behavior being performed on the television and proceeded to sexually assault her provides a context in which the jury permissibly could find that the images of two naked girls “having-doing- sex”, which A. described as “porno,” satisfied the statutory definition of “harmful matter.” “ ‘[V]iewing the evidence in the light most favorable to the prosecution,’ ” as we must, the evidence was sufficient to support defendant’s conviction for displaying harmful material to A. (People v. Davis (1995) 10 Cal.4th 463, 509.)
Unanimity instruction
Defendant next argues that the trial court failed to exercise its duty, sua sponte, to instruct the jury that it must agree upon the act on which it was basing its guilty verdict. “When a defendant is charged with a single offense, but there is proof of several acts, any one of which could support a conviction, either the prosecution must select the specific act relied upon to prove the charge, or the jury must be instructed that all the jurors must agree that the defendant committed the same act or acts. [Citation.] When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity.” (People v. Mayer (2003) 108 Cal.App.4th 403, 418.)
Specifically, defendant argues that the trial court should have instructed the jury with CALJIC 17.01, which instructs, “The defendant is accused of having committed the crime of [ ___ ]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] . . . upon which a conviction . . . may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] . . . committed any one or more of the [acts] . . . . However, in order to return a verdict of guilty . . . , all jurors must agree that [he] . . . committed the same [act] . . . . It is not necessary that the particular [act] . . . agreed upon be stated in your verdict.”
Defendant argues that the rape charged in count five was alleged to have occurred between September 15, 2003, and October 15, 2003, and that A. described three rapes that could have occurred during that period: one in approximately March 2003, one when A. was at defendant’s house in Fremont, and one when A. was visiting Alyssa. Defendant also notes that before trial the prosecution moved to introduce the uncharged sexual offenses under Evidence Code section 1108, subdivision (a). Defendant argues that “the jury had no guidance as to how to use the evidence of these uncharged offenses.”
Defendant is incorrect. In closing, the prosecutor specified that “Count five is the incident when he took her up to the bathroom at his sister Debbie’s house, raped her in the bathroom.” In People v. Mayer, supra, 108 Cal.App.4th at p. 418, the court noted that the jury instructions had pointed out the incident that was being prosecuted, but the court also observed that the prosecutor had specified the incident in her opening and closing remarks to the jury, and concluded that “[t]he prosecutor’s statements and arguments were an election for jury unanimity purposes.” In People v. Melhado (1998) 60 Cal.App.4th 1529, on which defendant relies, the prosecutor communicated his election only to the judge, not to the jury. Here, the prosecutor clearly communicated the incident on which count five was based. The defendant never suggested there might be any uncertainty as to the acts to which that count referred, and the record provides no basis to believe the jury might have been confused in this respect. Under these circumstances, the court was not required on its own motion to give a unanimity instruction.
New trial motion
Defendant argues that the trial court erred in denying his motion for a new trial, which was presented on his behalf by new counsel. The motion was based on the grounds of newly discovered evidence and ineffective assistance of counsel, arguing that his trial attorney failed to perform an investigation that would have revealed evidence that A.’s accusations were unfounded and part of a conspiracy between A. and Elizabeth. Defendant concedes that “trial counsel had the opportunity to discover this evidence,” and does not pursue the newly discovered evidence ground on appeal. He argues here that he received ineffective assistance of counsel in pursuing and presenting the additional evidence that was available and that he was “entitled to an evidentiary hearing to determine the credibility of this exonerating evidence.”
Section 1181, subdivision (8), provides that the trial court may order a new trial where “new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at trial.”
In his new trial motion, defendant submitted the declaration of a private investigator, who attached reports he made following conversations with defendant’s sister Debbie; Alyssa; Veronica; Joanne Sandoval, who once rented a room to Elizabeth and A.; Hector Rodea, Fausto Moreno and Eliseo Miranda, all of whom worked with defendant on the evening of October 26, 2003; Elizabeth and Veronica’s sister Sandra R., and Cecilio R., defendant’s cousin and Sandra R.’s boyfriend. The investigator reported that Debbie told him that “the day after [defendant] was arrested, she got a call from [defendant]’s estranged wife, Veronica, advising [defendant] had been arrested. She said that it was a very vague conversation and Veronica was merely passing on information that [defendant] had been incarcerated. She said later that same day, she got a call from Veronica, who said [defendant] had sex with A[.] as well as her daughter, S[.] and that’s why he was arrested. [¶] . . . [¶] [Debbie] went on to tell me that Veronica has done time in San Mateo County for making false allegations. She said Veronica falsely accused her father of child molest. She said Veronica eventually admitted the accusations against her father were false and that he was about to get custody of Veronica’s boys so she made the accusations to prevent him from getting custody.” The investigator also stated that Debbie told him that Elizabeth “was in need of money because she wasn’t working,” and that “the allegations were motivated by money, that [Elizabeth] told her and her father they wanted money to make the case go away. [Debbie] said [Elizabeth] told her that if she gave them money, they wouldn’t testify against [defendant].” Nevertheless, the report also states that defendant’s trial counsel contacted Debbie prior to trial and that Debbie testified.
The investigator’s report of his conversation with Alyssa largely mirrors her trial testimony, that A. has a reputation for lying, that she snuck out of the house at night to hang out with boys, and that Alyssa was not at Burger King as A. testified she was on the day of the first charged incident. The report also states that Alyssa said that A. had “told her the allegations she made up against [defendant] weren’t true. [Alyssa] said she asked A[.] why she made the allegations up, and A[.] said her mother, Elizabeth, made her say it. . . . [Alyssa] said A[.] told her she was going to drop the charges so [Alyssa] said she didn’t tell anybody anything because she wasn’t supposed to know about the rape anyway. [¶] [Alyssa] said she met with her uncle’s attorney during the first week of his trial. [Alyssa] said she told the attorney that A[.] recanted, and he asked why she didn’t say anything before. She said she told the attorney why and he said he wasn’t sure if he was going to use the information or not.”
The investigator reported that Veronica told him that “in the past, she had been prosecuted and spent 20 days in jail because she falsely accused her father-in-law of inappropriate conduct with her kids.” She reportedly told the investigator that Elizabeth and A. once saw defendant slap Veronica, and Elizabeth told her that “she and A[.] could make [defendant] go away forever. Veronica said she was angry and said, ‘Okay.’ [¶] . . . She said [Elizabeth] told her th[e]y didn’t need the police, that she could get A[.] to say [defendant] raped her, that she could get A[.] to say whatever she wanted A[.] to say. Veronica said she told [Elizabeth] to do whatever she had to do, that she just wanted [defendant] out of her life.” After defendant was arrested, however, Veronica reportedly “realized . . . what they had done” and told Elizabeth “they had to put a stop to this . . . .” The investigator “asked Veronica if A[.] had falsely accused anyone else in the past. Veronica said her cousin, Joanne Sandoval, told her [Elizabeth] made accusations about her husband, Raul. . . . Joanne told her [Elizabeth] started making accusations about Raul only after Raul told [Elizabeth] she needed to start paying rent.”
Sandoval told the investigator that “she did not want to involve herself in this case,” because she was “scared of [Elizabeth] and what [she] can do,” and that “though she felt sorry for [defendant], she didn’t want to become one of [Elizabeth’s] next victims.” Rodea and Moreno told the investigator that they had worked with defendant on the night that defendant was arrested, and Moreno said he was with defendant the whole night. Miranda told the investigator only that he had worked with defendant the night he was arrested. Sandra Robles told the investigator that she had heard Elizabeth and Veronica arguing, and that upon inquiry, “Veronica told her she and [Elizabeth] had an arrangement to get [defendant] out of the house, and it involved money.” Sandra told the investigator that she “didn’t want to hear it and left the room.” Ramos told the investigator much of the same information that Sandra had provided and also offered the opinion that A. did not behave like someone who had been raped.
The trial court denied the motion, explaining that “the former attorney’s trial tactics were one as in many of these cases, most of these cases the defense attorneys make the decision to attack the credibility of the alleged victim. And that he did that vigorously in this case, on extensive cross-examination, not only the victim, but any other witness that may corroborate the victim’s testimony. I think I have to give deference to that, so I cannot say that as a matter of law his conduct falls below the standard required by law.”
The Supreme Court in People v. Fosselman (1983) 33 Cal.3d 572, 582-583, recognized that in addition to the statutory grounds for a new trial motion, which purport to be exclusive, “the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law. ‘Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.’ [Citations.] The Legislature has no power, of course, to limit this constitutional obligation by statute. [Citation.] It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” The court held that “a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings.” (Id. at p. 584.)
In People v. Taylor (1984) 162 Cal.App.3d 720, the court set forth a two step process when a motion for new trial is based on alleged ineffective assistance of counsel. “In the first step, the trial court must find the relevant facts . . . . [Citation.] Having made these findings, the court should make other pertinent findings based upon its own observations and the evidence presented to it.” (Id. at p. 724.) “In the second step of the process, the trial court will have decided whether, on the facts which it has found, the defendant was deprived of his right to adequate assistance of counsel, that is, whether the defendant has shown that ‘. . . trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates . . . [and] that counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense . . .’ [citation], or ‘. . . that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings.’ ” (Id. at pp. 724-725.)
Defendant argues that the trial court failed to follow the formula set forth in Taylor because it did not hold an evidentiary hearing to determine the credibility of the evidence he provided in support of the motion. However, Taylor does not require such a hearing. It requires the trial court to “find the relevant facts” but does not preclude the court from doing so based on the declarations submitted in connection with the motion and its observation of the evidence received at trial. Moreover, Taylor reiterates the familiar standard of appellate review: “On appeal, 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. The trial court’s factual findings, express or implied, will be upheld if they are supported by substantial evidence.” (People v. Taylor, supra, 162 Cal.App.3d. at p. 724.)
“To prevail on a claim of ineffective assistance of counsel, defendant ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible; and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .” [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
The trial court here found that trial counsel had made a tactical decision not to call the witnesses described in the new trial motion, and that his conduct did not fall below that of reasonably competent counsel. Implicit in this ruling is the finding that the additional evidence described by the investigator was of questionable credibility, a determination within the province of the trial court that we have no basis to fault. Rather than introduce declarations from the witnesses themselves, or from trial counsel, defendant submitted only the reports of the investigator describing what the witnesses had said to him. The reports are hearsay and as such inherently unreliable. (See, e.g., People v. Kons (2003) 108 Cal.App.4th 514, 524.) The burden was on defendant to produce competent evidence in support of his motion. (See, e.g., People v. Fosselman, supra, 33 Cal.3d at p. 583 [“to show ineffective assistance of counsel a defendant must prove in part that his attorney’s deficient representation resulted in the ‘withdrawal of a potentially meritorious defense’ ” (italics added)].) Since many of the people interviewed by the investigator were witnesses at trial, trial counsel presumably was aware of their prospective testimony and chose not to present it for tactical reasons, likely concerning the credibility of the witnesses. Others who were interviewed offered little more than hearsay to corroborate defendant’s conspiracy theory. Based on the evidence submitted in support of the new trial motion, the court was entitled to find that trial counsel made a tactical decision that attempting to develop the conspiracy theory would weaken the credibility of the defense. On the record before us, we have no basis to reject the trial court’s determination that trial counsel’s strategy was reasonable.
Moreover, defendant’s ineffective assistance of counsel claim relies primarily on matters that were not observable by the trial court and may be more appropriately litigated in a petition for a writ of habeas corpus. (People v. Cornwell (2005) 37 Cal.4th 50, 98-102.) We express no opinion as to the merit of any such petition. We observe simply that this procedure is available to evaluate such competent evidence as defendant may present indicating that credible testimony likely to have produced a different outcome at trial was not presented for reasons falling below the standard of care.
Disposition
The judgment is affirmed and the case is remanded for correction of the abstract of judgment. (See fn. 4, ante.)
We concur: McGuiness, P. J., Parrilli, J.