Opinion
D074461
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. RASHAWD JARRAEL RAHMING, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Meredith White and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SWF1302910) APPEAL from a judgment of the Superior Court of Riverside County, Samuel Diaz, Jr., Judge. Affirmed with directions. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Meredith White and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Rashawd Jarrael Rahming of sodomy and oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a) & (b), counts 1 & 2), and lewd touching of a child under 14 years of age (§ 288, subd. (a), count 3). The court sentenced Rahming to prison for eight years plus 40 years to life.
Undesignated statutory references are to the Penal Code.
Rahming contends his convictions should be reversed because of prosecutorial misconduct occurring in closing argument. Specifically, Rahming contends that the prosecutor (1) improperly told the jury to use evidence of pornography found on Rahming's tablet to show propensity to commit the charged crimes, and (2) referred to facts not in evidence. Because Rahming's trial attorney did not make these objections at trial, and to avoid forfeiture of these issues on appeal, Rahming contends he received ineffective assistance of counsel. We reject these contentions, direct the clerk to correct an omission in the abstract of judgment, and affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
1. Sodomy and oral copulation
H.A. was born in 2004 and when the charged offenses occurred he was living with his mother, Jessica A., and his stepfather, Rahming.
In July 2013, after Jessica and Rahming ended their relationship, H.A. told Jessica that Rahming had molested him. In a recorded interview with a social worker that the jury watched, H.A. stated that Rahming sodomized him in a bathroom when H.A. was about seven or eight years old. When H.A. said it hurt, Rahming told him to "shhh" and continued sodomizing him. H.A. stated that Rahming also sodomized him twice in H.A.'s bedroom, once in H.A.'s mother's room while she was at work, and again when the family was in bed. H.A. also stated that Rahming forced him to orally copulate Rahming. H.A. stated that "white stuff" came out of Rahming's penis into his mouth.
Rahming told H.A. to not tell anyone about these acts. H.A. was scared of Rahming because Rahming had previously spanked and punched him.
Evidence Code section 1108 permits a jury to consider prior incidents of sexual misconduct to show a defendant's propensity to commit offenses of the same type. (See People v. Avila (2014) 59 Cal.4th 496, 515-516.)
J.H. was born in 2005 and was friends with H.A. On one occasion, J.H. broke a toy while playing at H.A.'s house. Rahming took J.H. into the bathroom, and told him to get on "all fours [and] pull [his] pants down." J.H. thought Rahming was going to spank him for breaking the toy—but instead, Rahming stood behind J.H. and masturbated while touching J.H.'s buttocks. Rahming told J.H. he would kill him if he told anyone. J.H. did not tell anyone about this incident until about two years later, when J.H.'s uncle (who knows Rahming) said that Rahming was in jail for molesting H.A.
3. Pornography
When arrested, Rahming consented to a police search of his computer tablet, which contained Internet bookmarks for pornography sites involving young boys. One bookmark linked to a text entitled "Winning Points with My Stepdad," which describes an 11-year-old boy orally copulating his stepfather. Another bookmark linked to a website involving "twinks," i.e., youthful looking males. A third bookmark linked to a text entitled "Boy Scout bunk-bed-sleep-over."
4. Psychological evidence
A psychologist testified regarding child victims of sexual abuse who are assaulted by a family member. She explained that boys are frequently such victims and are unlikely to report such abuse. The psychologist also testified that the child victim suffers a sense of helplessness and confusion because the child does not understand what is happening, and the perpetrator is a person they may love. Additionally, the child will rationalize and accept what is happening, trying to cope with what is happening and fit it into their daily life.
B. Defense Case
Rahming and Jessica had a stormy relationship punctuated by financial problems, a period of homelessness, and disputes between Rahming and Jessica's mother and sister. The end of their relationship was acrimonious. Without Jessica's knowledge, Rahming took H.A. and his sister to Reno. Jessica obtained a restraining order giving her temporary custody. She tracked Rahming to Reno, where she took the children and returned with them to Southern California.
After returning from Reno, Jessica asked H.A. if Rahming had ever molested him. Initially, H.A. said nothing inappropriate had happened. However, about three weeks later, as Jessica was preparing for a hearing on the restraining order, she asked H.A. again. This time, H.A. told Jessica that Rahming had molested him.
Rahming also presented a character witness, Jeff B., who testified that in 2004 Rahming lived with his family, including his two children. Jeff and his wife would occasionally leave Rahming in charge of their children. Nothing untoward happened. In 2007 Jeff and his wife invited Rahming to stay with them again for about two months. In 2009 Rahming helped move Jeff and his family to Reno, where he again stayed without incident.
Rahming also testified. He denied all the charges. He also denied masturbating over J.H. On cross-examination, Rahming explained that when the family was sleeping in the same bed, his penis "ended up on [H.A.'s] leg" by accident when H.A. "cuddled up" next to him while they were all asleep.
Rahming testified that he was unaware that the pornographic websites were bookmarked on his tablet. He explained that while he was looking at "legal porn," and "a lot of pornography sites," the child pornography sites popped up on their own and, with one exception, he did not intentionally bookmark them. He conceded, however, that he read "Slutty Little Boy," but only to "see what it was about" and then he "accidentally bookmarked it." Rahming testified that he "chose to click" on "Winning Points With My Stepdad"—but accidentally bookmarked it and once he saw "it was a little too much," he "exited out." Rahming admitted looking at "straight pornography" and at "gay pornography," whether it was "old, young, fat, skinny. I looked at it all." He admitted this included "pornography that featured homosexual sex, that included at least one of the individuals being very young looking." But Rahming testified that he viewed that pornography merely out of curiosity and not sexual interest. He stated, "I looked at it all"-but not that featuring very young looking males.
DISCUSSION
I. PROSECUTORIAL MISCONDUCT ISSUES
A. Procedural Background
1. Pretrial ruling on admissibility of pornography
Before trial the parties litigated the admissibility of the pornography on Rahming's tablet. The prosecutor stated that Rahming claimed to have accidentally touched H.A.'s leg with his penis while sleeping. Bookmarking child pornography, the prosecutor asserted, showed this was not accidental but rather intentional. Unconvinced, the court stated that the pornography "seems to show the defendant's character or disposition. That's what I'm afraid of." To alleviate that concern, the prosecutor stated, "The People certainly would not argue that it's character evidence. We are not going to be using it for that purpose." Further, the prosecutor explained that count 3, "[section] 288[, subdivision] (a) requires specific intent, that the touching be for sexual purpose. The documents that he had bookmarked, that he had saved his place on the Internet so he could return quickly to them, are discussions—they're fantasy literature discussion touching children for sexual intent."
After taking the matter under submission, the court ruled that the pornography evidence was admissible on the issue of intent.
2. The prosecutor's closing argument
The prosecutor told the jury that Rahming's tablet bookmarks give an "insight into what [Rahming was] thinking, and to who he is and how he sees the world." The prosecutor read aloud excerpts from "Winning Points with My Stepdad," which graphically describes an 11-year-old boy orally copulating his stepfather. Next, the prosecutor read aloud excerpts of "Slutty Little Boy," which describes sodomy with a 10-year-old boy. The prosecutor told the jury, "I think we're getting the clear picture. The descriptions of sodomy are very clear and very photographic. And it tells us something about the person who's fantasizing about this." He argued that the pornography is a "window" into "who [Rahming] is." The prosecutor reminded the jury that Rahming testified that his penis accidentally touched H.A. The prosecutor stated, "[H]e just happens to be the type of person who sometimes bookmarks child erotica on his tablet." Near the end of his closing argument, the prosecutor reviewed the three charged counts with the jury. The prosecutor told the jury that the lewd conduct charged in count 3 was one of the acts of sodomy.
B. Rahming's Contention
Evidence Code section 1101 generally provides that evidence of a person's character or character trait—whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct—is inadmissible when offered to prove his conduct on a specified occasion. However, subdivision (b) of this statute clarifies that subdivision (a) does not prohibit the admission of such evidence when relevant to prove, among other things, intent or the absence of mistake or accident.
Evidence Code section 1101 provides in part: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
On appeal, Rahming contends the prosecutor's pretrial representations to the court that the pornography evidence would only be used to show intent on count 3 were "nothing more than a ruse,"—a bait and switch—designed to obtain a pretrial ruling allowing him to use "the highly inflammatory" evidence of child pornography to improperly show Rahming's propensity and disposition to commit the crimes. Rahming contends the prosecutor's true designs came out in closing argument: The act charged in count 3 was not a claimed accidental touch of the penis on H.A.'s leg, but rather sodomy, and the pornography was not used to show intent, but rather disposition to commit sex crimes. Therefore, Rahming contends, his convictions should be reversed for prosecutorial misconduct.
C. Forfeiture on Appeal
To preserve a prosecutorial misconduct issue on appeal, "'"a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety."' [Citation]. The lack of a timely objection and request for admonition will be excused only if either would have been futile or if an admonition would not have cured the harm." (People v. Powell (2018) 6 Cal.5th 136, 171.) "The reason for this rule is that '"[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." [Citations]. "[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error."'" (People v. French (2008) 43 Cal.4th 36, 46.)
Here, Rahming concedes that his trial attorney did not object to the prosecutor's closing argument. Accordingly, Rahming has forfeited his claim of prosecutorial misconduct.
Citing People v. Hernandez (2003) 30 Cal.4th 835 (Hernandez), Rahming contends the issue is not forfeited because his attorney's failure to object is "excusable." However, the facts in Hernandez are materially different from those here. In Hernandez, in a discussion in chambers before the penalty phase of a murder trial, the prosecutor told the trial court he intended to offer evidence that the defendant, while in custody awaiting trial, stabbed a deputy sheriff and had been found guilty of assault for that crime. (Id. at p. 870.) Actually, however, the defendant had been acquitted. (Ibid.) Based on the prosecutor's inaccurate representation, the trial court permitted him to introduce evidence of the defendant's assault on the deputy. (Ibid.) In closing argument, the prosecutor mentioned the assault repeatedly, and at one point argued, "[H]e's got a shank in his hand and he cuts his jailer. [¶] What tells you more about the man?" (Id. at p. 871.) The prosecutor's argument was improper because section 190.3 prohibits evidence of prior criminal activity for which the defendant was prosecuted and acquitted. Although defense counsel in Hernandez did not object to the prosecutor's closing argument, the appellate court held this was excusable "in light of the prosecutor's inaccurate representation to the trial court that defendant had been convicted of the assault." (Hernandez, at p. 871.)
Hernandez, supra, 30 Cal.4th 835 is distinguishable because the prosecutor's misconduct here is not a factual misrepresentation, but rather an improper legal argument. An objection in Hernandez would have been futile because the court believed that the defendant had been convicted of the assault on the prison guard. In contrast here, there is nothing in the record indicating that a timely objection to the prosecutor's improper legal argument would have been futile. Nothing in the reporter's transcript indicates that the trial court was unreceptive to defense objections in general or that the court ever told defense counsel to stop or limit his objections. Accordingly, there is no basis for excusing Rahming from the obligation to timely object to preserve the misconduct issue on appeal.
D. Defense Counsel Was Not Constitutionally Ineffective
Alternatively, Rahming contends that if defense counsel forfeited the appellate issue by not objecting, then such failure constitutes ineffective assistance of counsel. To prevail on a constitutional claim of ineffective assistance of counsel on appeal, a defendant has the burden of showing that (1) his trial attorney's representation was deficient; i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation was prejudicial; i.e., that there is a reasonable probability that but for counsel's failings, the result would have been more favorable. (People v. Brown (2014) 59 Cal.4th 86, 109.)
We agree with Rahming that the prosecutor committed misconduct in closing argument. Before trial, the prosecutor assured the trial judge that he would "not argue that it's character evidence. We are not going to be using it for that purpose." However, in closing argument, the prosecutor did exactly what he promised he would not do—repeatedly telling the jury to use the pornography evidence to show "[w]hat kind of person the defendant is."
Nevertheless, "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.'" (People v. Williams (1997) 16 Cal.4th 153, 221.) Here, the record shows that Rahming's attorney chose to address the prosecutor's misconduct in his own closing argument rather than objecting and requesting an admonition during the prosecutor's closing argument. (People v. Welch (1999) 20 Cal.4th 701, 764.) Defense counsel told the jury that the prosecutor had misstated the law when arguing that the pornography gave "insight into who [Rahming] is and how he sees the world." Defense counsel reminded the jurors of their promise to follow the law and, after urging the jurors to "write down [CALCRIM No.] 375," counsel read that instruction aloud, including portions instructing that the pornography evidence could only be used to show "whether or not [Rahming] acted with intent to arouse or appeal to sexual gratification." Defense counsel argued, "The law says you can use it for the limited purpose of whether [Rahming] acted with intent. That's it. Okay. The law does not say, this evidence can give you an insight into who he is and how he sees the world. [¶] That's how you use that evidence. That's the rules. That's the law."
Further, defense counsel told the jury that the prosecutor was trying to manipulate them by invoking emotion and not intellect. Counsel read the jury an instruction stating, "Do not let bias, sympathy, prejudice, or public opinion influence your decision." Defense counsel argued, "That's why [the prosecutor] led with it, folks. He wanted to grab you. And he wanted to appeal to the heart instead of the intellect. [¶] A little disappointed he didn't give you the rules what to do with this evidence. But the judge did. You'll have it back there. Look at [CALCRIM No.] 375."
Moreover, defense counsel ended closing argument by again reminding the jury that it could use the pornography only to show intent. Counsel stated, "You won't hear from me again. But please keep in mind the following when you listen to him. And, more importantly, when you go back there and begin the deliberations process. [¶] Remember what the rules say about what to do with the stories, and the websites and all of that? We spent so much time on it. It goes to intent. I'm here to tell you folks, intent is not an issue. It really isn't. [¶] In fact, the law says that you're not allowed to say [Rahming's] a bad guy because of this. The law says you're not allowed to say because of this he did this crime. It's in the law. You'll see [CALCRIM No.] 375."
"'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.'" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) "'A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" (In re Jones (1996) 13 Cal.4th 552, 561.)
Rahming's appellate lawyer contends that trial counsel "could have no tactical reason not to object to the prosecutor's false argument since counsel objected to admission of the stories on the computer during in limine motions." We disagree. The evidence against Rahming was overwhelming: The victims were credible; there is a recognized psychological basis for their delay in reporting; under Evidence Code section 1108, evidence that Rahming masturbated over J.A. could be used to show Rahming's character or disposition to commit the charged sex offenses; and Rahming's explanation for bookmarking the child pornography—that it was all accidental—was highly questionable. With little evidence favoring acquittal, defense counsel apparently decided that Rahming was better served by not objecting and instead using the prosecutor's overreaching as a way to rally the jury against the People's case. Counsel was not constitutionally ineffective simply because that strategy was ultimately unsuccessful.
Moreover, it is not reasonably probable that the result would have been more favorable to Rahming if his attorney had objected to the prosecutor's closing argument. If defense counsel had objected during closing argument, such objection presumably would have resulted in a correction, an admonition from the court, and an amended argument from the prosecutor.
However, an amended final argument from the prosecutor was actually given. After being taken to task by defense counsel, in rebuttal the prosecutor argued that the evidence from Rahming's tablet was relevant to intent—stating it is "important evidence" because it provides "insight into what's going on inside [Rahming]. [¶] And why is it important what's going on inside [Rahming]? Because intent—his intent is an important element in this case."
Additionally, the court clearly instructed the jury that the pornography evidence was only admissible on the issue of Rahming's intent. The court instructed that if the jurors concluded that Rahming "looked up erotic descriptions of minors engaged in sex acts," the jury could consider that evidence "for the limited purpose of deciding whether or not [Rahming] acted with the intent to arouse, appeal, or gratify his own sexual desires when he committed a lewd act on [H.A.]" The court also instructed, "Do not consider this evidence for any other purpose. Do not conclude from this evidence that [Rahming] has a bad character or is disposed to commit the crime." The court further instructed, "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
Accordingly, there is no reason to conclude that the jury based its verdict on the prosecutor's incorrect statements in his initial closing argument, as opposed to the defense argument, the prosecutor's rebuttal argument, and the court's clear instructions limiting the jury's use of the pornography evidence. We therefore reject Rahming's claim of ineffective assistance of counsel.
Disagreeing with this conclusion, Rahming contends the prosecutor's misuse of the pornography evidence distracted the jury from considering "conflicting evidence" surrounding the charged offenses, including the absence of any "physical findings" of sodomy. However, the only conflicting direct evidence was Rahming's own self-serving testimony, which the jury was entitled to, and did, disbelieve. Moreover, Rahming's character witness, Jeff, conceded that the child pornography on Rahming's tablet was "disturbing" and in light of those bookmarked websites, he would "definitely say we need to talk about this, and you're not watching my kids . . . ." The absence of physical findings was explained because H.A. did not report the abuse until approximately a year after being sodomized.
Citing People v. Hill (1998) 17 Cal.4th 800, Rahming also contends that the prosecutor's closing argument was prejudicial because of the "sheer number of the instances of prosecutorial misconduct" causing a "negative synergistic effect . . . ." However, Hill is an extreme case involving a "constant barrage of . . . unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods." (Id. at p. 821.) To the extent that Rahming seeks to analogize his case to Hill, the comparison is inapt.
For the first time in the reply brief, Rahming also cites United States v. Preston (9th Cir. 2017) 873 F.3d 829 (Preston) for the proposition that a "'"link"'" between sexual fantasy and intent is "'"too tenuous to be probative . . . ."'" Setting aside the fact this argument is improperly made for the first time in the reply, Preston is inapposite.
In Preston, supra, 873 F.3d 829, the defendant was charged with molesting a child. His ex-wife testified that five years after the defendant allegedly abused the victim, she saw the defendant masturbating while looking at an image of his eight-year-old stepson clothed in socks and underwear. (Id. at p. 839.) The Ninth Circuit held that the district court abused its discretion in admitting this evidence because masturbating to a picture of a boy in underwear, a noncriminal act, is not similar to "real-life sexual abuse of a child." (Id. at p. 841.)
Rahming's reliance on Preston, supra, 873 F.3d 829 is unavailing for at least two reasons. First, Rahming's pornography includes text describing an 11-year-old boy orally copulating an adult male, which unlike the conduct in Preston, manifestly is "sexual abuse of a child." (Id. at p. 841.) Second, the Court of Appeals in Preston also noted that "'incest has had a rare power to disgust'" (id. at p. 841) and the visceral impact of this evidence far exceeded its probative value. (Id. at p. 842.) In contrast here, the trial court ultimately determined that Rahming's pornography was not unduly prejudicial under Evidence Code section 352, and Rahming does not contend in his opening brief that the court abused its discretion in so ruling.
E. Facts Not in Evidence
In closing argument, the prosecutor told the jury, "[T]here were numerous other bookmarks that . . . referred to twinks and sex acts being performed by boys." Rahming contends this also constitutes misconduct because there was no such evidence.
The record refutes Rahming's argument. The investigator who analyzed Rahming's tablet testified that there were bookmarks for "Winning Points with My Stepdad," "Slutty Little Boy," a link to a website involving "twinks," and a bookmark to "Boy Scout bunk-bed-sleep-over." He also testified that in addition to these, there were other bookmarks that involved references to sex acts with boys, twinks, "or things of that nature." Moreover, asked if there were other bookmarked websites that involved young boys, Rahming testified, "I'm pretty sure there's an enormous amount of pornography in my history" and "there was a lot [of] porn on my tablet." Accordingly, contrary to Rahming's claim on appeal, the record supports the prosecutor's argument that there were numerous other bookmarks on Rahming's tablet involving sex with young boys.
II. CLERICAL ERROR IN ABSTRACT OF JUDGMENT
The court sentenced Rahming to 25 years to life on count 1, plus a consecutive 15 years to life on count 2, plus the upper term of eight years on count 3 that is "consecutive to any other count." The clerk prepared two abstracts of judgment to reflect the oral pronouncement of sentence, an abstract of judgment for the indeterminate term (40 years to life), and a separate abstract of judgment for the determinate eight-year term. On the abstract of judgment for the indeterminate term, the clerk should have checked box 7 which states: "Additional determinate term (see CR-290)," but failed to do so.
At any time, we may correct clerical errors, including abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) Accordingly, we shall order the abstract of judgment for the indeterminate term to be corrected.
Neither party raised this issue; we requested supplemental briefs on the point. Both parties agree that the abstract should be so corrected. --------
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment for the indeterminate term in which box 7 is checked, and is in all other respects identical to the original abstract of judgment for the indeterminate term. After doing so, the superior court clerk is directed to forward the corrected abstract of judgment for the indeterminate term, together with the abstract of judgment for the determinate term, to the Department of Corrections.
NARES, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.