Opinion
A125497
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ARMANDO SALDANA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-060587-3)
Appellant Carlos Armando Saldana, a caregiver at an assisted care facility, was convicted by a jury of forcible rape, forcible oral copulation, and committing lewd acts upon a dependent person. The victim, whom we shall refer to as Jane Doe, was an elderly resident at the facility who was unable to testify about the assault at trial as a result of her dementia.
On appeal, appellant contends the trial court violated his constitutional right to confront witnesses against him by allowing the crime to be proven with testimonial hearsay. He claims the court erred by excluding evidence of another rape accusation made by Doe, by excluding evidence of third party culpability, and by giving an improper jury instruction. He also argues the evidence is insufficient to support his conviction, that he was erroneously convicted of committing lewd acts upon a dependent person, and that he was denied effective assistance of counsel at trial. We find no merit to appellant's contentions and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe retired in 2002 at age 65 and moved to Ohio. In early 2004, she began to have serious health problems. She frequently fell and hurt herself, even knocking herself unconscious several times. Her doctors gave her a pacemaker in January 2004 because they suspected a heart condition might be the cause of her problem. She continued to experience falls after receiving the pacemaker. A CT scan revealed she had two brain aneurysms. Doe had surgery to treat one of the aneurysms in May 2004. Even after the aneurysm surgery, Doe was not doing well living by herself. She was not following her doctor's instructions and continued to lose consciousness periodically.
Jane Doe moved back to California in early August 2004. Her daughters made the decision to place her in Sunrise Assisted Living Center (Sunrise), an assisted care facility in Danville. One of her daughters testified that she believed Doe was incapable of caring for herself. In addition to the falling episodes, Doe could not handle her finances and was not allowed to drive. In some telephone conversations with her daughter, Doe would simply walk away from the phone and the conversation would end. According to her daughter, Doe was having "big problems" with her memory.
The transition to an assisted living center was difficult for Doe. She was very confused about where she was. A few weeks after moving into Sunrise, Doe passed out in the dining room and had to spend two nights in the hospital. Doe was also placed on medication for a seizure disorder. She was evaluated at a memory clinic on at least three different occasions because there was clearly something wrong with her memory.
Doe was first seen at the Kaiser Memory Disorder Clinic in the fall of 2004. She was individually evaluated for the first time in November 2004 by Robin von Fredericks, a nurse practitioner. Von Fredericks performed a series of tests and concluded Doe had "mild cognitive deficits" with a "possibility of early dementia." The assessment was complicated by Doe's significant medical issues in the past. For example, an aneurysm may cause cognitive problems, but the problems typically do not get worse, whereas with dementia the problem gets progressively worse with time. Further, Doe had problems with her living situation that caused her to be dehydrated and malnourished. Dehydration and malnutrition were important not only because they might affect cognitive function but also because they could be indicators that Doe was having difficulty caring for herself. Von Fredericks referred Doe for further testing with a neuropsychologist, who concluded that Doe had "moderate impairments in memory and reasoning . . . that . . . recommended early stages of dementia."
Dr. Jeffrey Klingman, a neurologist qualified as an expert in the fields of dementia, neurology, and memory disorder, testified at trial that dementia is defined as a significant global decline of cognitive function severe enough to interfere with daily activities. Bad memory that does not interfere with routine daily activities is called "isolated memory disorder" or "mild cognitive impairment." People with early-stage dementia are mostly independent but need help and supervision. The condition is more severe than simple forgetfulness. They may forget to take their medication, forget appointments, repeat themselves, or ask questions repeatedly.
Doe's condition worsened over time. In 2006, her doctors determined the earlier concerns were justified and that she had stage two dementia. At that point, she was "pretty clearly in the impaired range and consistent with dementia." At trial, Dr. Klingman stated that Doe had "dementia of the Alzheimer's type."
As of December 2004, Doe was 67 years old and still a resident at Sunrise. At the time, appellant was 49 years old and worked at Sunrise as a caregiver. A caregiver assists residents with the activities of daily living. Among other things, they clean up residents' rooms on a daily basis, do laundry for residents, and serve the residents in the dining room. Caregivers have keys to the rooms of the people under their care. Appellant was Doe's assigned caregiver as of December 2004.
At about 8:00 a.m. on December 9, 2004, the activity director at Sunrise, Vivian Bowers, saw Doe being escorted out of the dining room. Doe was very upset, crying, and almost hysterical. Doe said she had been raped the previous night. When Bowers asked who raped her, Doe responded that it was someone who worked in the kitchen or dining room. Bowers looked at the work schedule and saw that appellant had worked at Sunrise the night before. When asked at trial whether she noticed a dating relationship between appellant and Doe, Bowers responded, "Absolutely not. And [it] never would have entered my mind under the situation."
After attempting to get Doe to calm down, Bowers directed Doe into the office of Sunrise's sales and marketing director, Kimberly Martin. Doe, who was still upset and crying, told Martin that a man had come into her room when she was going to bed. Doe said the assailant wore a green name badge but that she could not read the name on the badge. Caregivers wear green name badges. Doe described the assailant as being in his mid-forties with dark hair and a mustache. Martin did not press for details in light of Doe's condition.
Doe next saw Marissa Tuttle, Sunrise's executive director, at about 9:00 a.m. Doe was still crying hysterically. Doe told Tuttle she had been raped. When Tuttle asked Doe to describe her assailant, Doe said he was around 40 years old and looked Mexican. She told Tuttle she had seen him in the dining room the day before and that he had been describing one of the menu options to one of her table mates. Doe stated she had been raped in front of her dresser. She was very upset and shaken but was able to say the assailant had put her tongue on his penis "and then he was inside of her." Doe could not remember what happened next. She did remember that the assailant had told her to wash up and get ready for bed when he entered the room.
Doe's daughter went to Sunrise after receiving a call about her mother. Doe was crying and told her daughter that a man had raped her the night before in her room. She said the man was Mexican. The daughter took Doe to the Contra Costa County Regional Medical Center.
Sheriff's deputy Robert Crase was dispatched to Sunrise on the morning of December 9, 2004. After speaking with the facility's executive director, he went to the Contra Costa Regional Medical Center, where he spoke to Doe before her sexual assault exam. Doe told deputy Crase that a man was in her room. She did not know if she let him in or if he came in on his own. He was sitting on her bed watching television. At some point he told her to lick his penis. She complied because she was afraid he would hurt her if she refused. He told her to stand up in front of a dresser and face the mirror on the dresser. He then put his penis in her vagina from behind. When he finished, he wiped himself off and told her to go to the bathroom to clean herself up. She believed he had climaxed. He left and she locked the door. Doe said the assault occurred sometime between sundown and the time she would normally go to bed. She described the assailant as a 40- to 50-year old Mexican with a mustache. She said she believed he worked at Sunrise and that she had seen him serving food. She did not recall seeing him in her room before. Doe told the officer she believed her assailant was wearing a nametag bearing the name "Greg." When the officer asked if she knew who appellant was, she responded that she did know him. The officer then asked whether appellant was the man who raped her. At the time, "she said she didn't think it was." Deputy Crase collected a pair of underwear and sweatpants that Doe had worn the previous night.
Following the interview with deputy Crase, Doe saw Elizabeth LaGorce, a registered nurse and forensic examiner with the Sexual Assault Response Team (SART). LaGorce performed a sexual assault exam on Doe. Doe told LaGorce that the assault took place the previous evening between 8:00 and 11:00 p.m. She said the assailant was named "Greg." He was Mexican and in his mid-forties. According to Doe, he did not physically harm her in any way. Doe described the assault in much the same way she had explained it to deputy Crase. LaGorce collected evidence swabs from Jane Doe's vagina and rectum.
Deputy Crase interviewed appellant later in the day on December 9, 2004. Appellant claimed he had last seen Doe at 6:00 p.m. the previous evening and that he did not go into her room that night.
Detective Steven Andrews of the Contra Costa Sheriff's Department investigated the rape. He spoke with Doe on December 16, 2004, about a week after the incident. Doe had difficulty remembering specifics about the assault and initially could not remember if the incident occurred before or after dinner. She did not remember how the man got into her room. She remembered that he told her to unzip his pants and take his penis out. He told her to put his penis in her mouth. When she refused, he told her to lick it. Although she found it disgusting, Doe complied because she was afraid he would hit her or hurt her in some way, and she was concerned that a blow to her heart might affect her pacemaker. She could not articulate anything else about the incident other than that the man wiped his penis with a tissue, although she was pretty sure something else happened.
Doe described the assailant to detective Andrews as Hispanic with short hair. He was around her height or slightly shorter. She remembered he had a name tag starting with either a "C" or "G" and that he was wearing a yellow or gold shirt with some black on it. That was all that she could remember about the assailant. She told the detective she had a group of friends she ate with regularly although she was only able to remember the name of one of them.
Detective Andrews met with appellant on December 21, 2004. Appellant said he saw Jane Doe at dinner on December 8, 2004. He served her dinner that evening. Appellant told the detective that Doe had lost her balance and was easily confused that evening. She asked for coffee, he brought it, and then she asked for coffee again. He had to remind her he had just brought her coffee. On one occasion, according to appellant, Doe asked for the starting time of a movie she had just finished watching. She would also repeat herself a lot. She told him over and over at the meal that she did not like broccoli. Sometimes she would sit at the wrong table at meals and create a disturbance.
Appellant had known Doe since she moved in the facility five or six months earlier. He told the detective he was overworked and did not have time to get to know the residents on a personal basis. He said most of the residents were in bed by 8:30 p.m. on the evening of December 8, and that he went to the office across from Jane Doe's room to work on his schedule for the next day. Appellant denied going into Doe's room that night or having sex with her. Detective Andrews asked appellant whether the police would find any of his DNA in Doe or in her room. After a five or six second pause, appellant replied that he did not think so. Detective Andrews had learned from the crime lab that there was no sperm in the semen collected from Doe and her underwear. When the detective asked appellant whether he had had any operations, appellant responded that he had had a vasectomy in 1996 or 1997. The detective explained to appellant that there was no sperm in the semen recovered from the scene. Appellant still did not admit to having sex with Doe.
Testing of Doe's underwear revealed that appellant was a potential donor of the male component of the DNA found in the stains. The statistical calculation for the rarity of the DNA profile was one in 130 quadrillion African-Americans and one in 200 quadrillion southwest Hispanics. The semen found in Doe's underwear did not contain sperm. Likewise, the seminal fluid swab recovered from Doe's vagina had no sperm in it. One possible explanation for the lack of sperm would be that the donor had had a vasectomy.
At the request of the Contra Costa County District Attorney's office, a conditional examination of Jane Doe was conducted on September 30, 2005. The stated reason for the examination was to preserve her testimony in light of her medical conditions and memory problems. The district attorney feared that further delay in the proceedings would affect her ability to recall the incident. Appellant was represented by counsel at the conditional examination.
In a four-count information filed on May 12, 2006, the district attorney charged appellant with forcible rape (Pen. Code, § 261, subd. (a)(2)), forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), and with two counts of committing a lewd act on a dependent person (Pen. Code, § 288, subd. (c)(2)). As to the rape and forcible oral copulation counts, it was further alleged that the victim was 65 years of age or older at the time of the offense and that appellant knew or reasonably should have known of the disability and condition of the victim. (Pen. Code, § 667.9, subd. (a).)
The matter was repeatedly continued over the course of the ensuing two years, mostly at the request of appellant's trial counsel. A jury trial ultimately began in May 2009.
Jane Doe testified briefly at trial. She claimed to live in Ohio with two of her daughters, although she was actually still living at Sunrise at the time. She said she had heard of Sunrise but did not live there. She remembered telling the police about a sexual assault several years earlier but did not recall what she told the police. On cross- examination, appellant's trial counsel asked whether she remembered a man named Carlos Saldana from the December 2004 time period. She responded that she remembered the name Carlos but "[t]hat's all." She did not remember a man named Greg. Defense counsel asked no other questions of Doe.
Doe's conditional examination taken in September 2005 was not used at trial or offered into evidence. Instead, without objection on hearsay or confrontation clause grounds, the prosecution presented evidence of the assault through the testimony of Sunrise employees, a sheriff's deputy and detective, the SART examiner, and Doe's daughter.
A woman who had worked at Sunrise in the 2004 to 2005 timeframe, Dina Banos, testified for the defense. She claimed she showed a photograph of appellant to Doe at some point in 2005. When asked if she knew the man in the picture, Doe responded that it was Carlos, her caregiver. When Banos asked Doe if appellant had hurt or raped her, Doe responded, "Oh, no." Doe's daughter initially did not remember an incident in which her mother was shown a photograph of appellant. She was recalled as a witness and explained that she remembered an occasion in September 2005 when her mother recounted that a woman "came into her room and showed her a picture . . . ." Doe told her daughter she recognized the man in the photo but that "she didn't think it was the same guy who attacked her." Doe said without qualification that the man had not been in her room.
Appellant testified in his own defense at trial. He stated he had moved to the United States from Peru in 1989. He had a mustache in December 2004, and he admitted that he had had a vasectomy. He explained that he started working with Jane Doe at Sunrise about three months before the December 2008 incident. He got along with her from the beginning. According to appellant, their relationship became a romantic one. They had more than one sexual encounter, the first of which occurred in November 2004. The sexual encounters always took place in Doe's room. Doe never orally copulated appellant but they did have sexual intercourse. Appellant testified that he had sexual intercourse with Doe on the evening of December 8, 2004, at around 6:30 p.m. On cross- examination, appellant explained that his sexual encounter with Doe on December 8 involved her being bent over and facing her dresser with appellant entering her from behind.
Appellant testified he felt Doe was capable of making decisions. He acknowledged she had memory issues but claimed he had never witnessed Doe being confused. At the time of trial, he was still married to his wife of 32 years, who had not known about his relationship with Doe until after Doe made a claim of rape. He acknowledged his relationship with Doe was "not good" but claimed he had "noble feelings towards her." Appellant admitted lying to investigators, explaining that he did not want to lose his job and was concerned about claims of rape. The prosecutor asked, "So, it would be fair to say that when you want to protect yourself you lie?" Appellant responded, "That's right."
The jury found appellant guilty as charged and found all charged enhancements true. The trial court sentenced appellant to serve a term of seven years in state prison, composed of the middle term of six years for forcible rape plus a one year enhancement for committing a violent crime against a vulnerable person. The court imposed but stayed enforcement of the terms associated with the remaining charges. Appellant filed a timely appeal.
DISCUSSION
1. Confrontation Clause
Appellant argues the court violated his constitutional right to confront the witnesses against him by repeatedly allowing evidence of the charged offenses to be proven with testimonial hearsay. We disagree.
As an initial matter, appellant forfeited his confrontation clause claims by failing to object on this ground at trial. A claim based upon a purported violation of the confrontation clause must be timely asserted at trial or it is forfeited on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14; People v. Alvarez (1996) 14 Cal.4th 155, 186; see also Evid. Code, § 353.) " 'Specificity is required both to enable the court to make an informed ruling on the . . . objection and to enable the party proffering the evidence to cure the defect in the evidence.' [Citation.]" (People v. Boyette (2002) 29 Cal.4th 381, 424.)
We observe that appellant also forfeited any hearsay claim he might have had by failing to object on that ground at trial. (People v. Panah (2005) 35 Cal.4th 395, 476; In re C.B. (2010) 190 Cal.App.4th 102, 133.) Although there is some overlap in the concerns implicated by an evidentiary hearsay objection and a constitutional confrontation clause objection, a hearsay objection is distinct from one premised on the Sixth Amendment's confrontation clause. (See People v. Chaney (2007) 148 Cal.App.4th 772, 779 [a confrontation clause analysis "is distinctly different that of a generalized hearsay problem"].) In this case, appellant interposed neither a hearsay objection nor a confrontation clause objection to the testimony he now challenges on appeal.
Appellant's challenge to the testimony is limited to a confrontation clause claim. In his reply brief, for the first time, appellant suggests that certain hearsay testimony should not have been admitted because it did not fall under the hearsay exception for spontaneous statements. (See Evid. Code, § 240.) The hearsay argument is forfeited not only by the failure to object at trial but also by appellant's failure to raise the argument in his opening brief on appeal. (See People v. Becker (2010) 183 Cal.App.4th 1151, 1156.)
To avoid any suggestion appellant's trial counsel was ineffective for failing to object on confrontation clause grounds, we proceed to consider the claim on its merits. A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) In Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), the United States Supreme Court held that the Sixth Amendment's confrontation clause prohibits "the admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." If a declarant appears for cross-examination at trial, the Sixth Amendment's confrontation clause does not place any prohibition on the use of the declarant's prior testimonial statements. (Id. at p. 59, fn. 9.) In addition, the confrontation clause is inapplicable to nontestimonial hearsay. (Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Gutierrez (2009) 45 Cal.4th 789, 812.)
Appellant primarily complains the court made no finding Doe was unavailable to testify at trial. (See Evid. Code, § 240.) Appellant's complaint is somewhat puzzling in light of the fact Doe actually testified at trial. If he believes the evidence does not support a finding of unavailability, then there is no Crawford error because Doe was available to be cross-examined at trial. Alternatively, if Doe was effectively unavailable to testify as a result of her dementia, any testimonial hearsay was properly admitted because appellant was afforded a prior opportunity to cross-examine Doe at the conditional examination. Either way, there was no Crawford violation.
If appellant's trial counsel had pressed the issue or interposed an objection, there appears to be little doubt the court would have concluded Doe was unavailable to testify based on substantial evidence establishing a mental infirmity. (Evid. Code, § 240, subd. (a)(3).) At the time of trial, Doe did not know where she lived and did not even recognize her own daughter. She could recall telling law enforcement officers about a sexual assault but could not remember what the officers asked her. Even appellant's trial counsel acknowledged the extent of Doe's disability at the time of trial. At one point outside the presence of the jury, when the prosecutor objected on hearsay grounds to having an officer testify about what Jane Doe told the officer in February 2005, appellant's trial counsel stated, "I would cry foul on the hearsay objection because obviously (Jane Doe) doesn't recall anything from 2004 or 2005 or last week for that matter. Certainly I can bring her on - I can call her back - it seems cruel to me - and say, Do you remember this, and she'll say not, and that's that." Appellant's trial counsel later said in reference to Doe: "I have a witness that I can't cross-examine." Thus, as even appellant's trial counsel acknowledged, a finding of unavailability was a foregone conclusion amply supported by the evidence before the court.
To the extent the court erred in failing to make a formal finding of unavailability—an error invited by the failure of appellant's trial counsel to object or otherwise request such a finding—any error was harmless beyond a reasonable doubt. As noted, substantial evidence in the record amply supports a finding Doe was unavailable to testify at trial as a result of her dementia.
Appellant also argues there was no effective opportunity to cross-examine Doe with respect to the hearsay statements introduced at trial. He contends that many of the hearsay statements were unknown to him until they were offered at trial, thus making it impossible to effectively cross-examine Doe several years earlier as to those statements. The contention is meritless. The record reflects that appellant's trial counsel had received all of the police and investigative reports before the date of Doe's conditional examination in 2005. Appellant and his trial counsel therefore had sufficient information available to them to conduct a meaningful cross-examination of Doe. Further, appellant does not claim Doe was unavailable to testify at the conditional examination. To the contrary, his appellate counsel states the conditional examination was "taken at a time when Jane Doe indisputably had virtually all her wits about her as a witness." Therefore, we conclude there was no confrontation clause violation.
Even if the trial court erred in admitting testimonial hearsay, any error was harmless. "Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24.' [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." (People v. Loy (2011) 52 Cal.4th 46, 69-70.) Factors considered in determining whether a confrontation clause error is harmless may include whether the challenged testimony was cumulative, whether there was evidence corroborating or contradicting the witness on material points, and the overall strength of the prosecution's case. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
In his opening brief, appellant identifies three witnesses whose testimony allegedly included testimonial hearsay—detective Andrews, deputy sheriff Crase, and Robin von Fredericks. It is unclear why appellant singled out the testimony of von Fredericks, a nurse practitioner who evaluated Jane Doe for dementia in late 2004. Presumably, appellant intended to refer instead to Elizabeth LaGorce, the SART forensic examiner who conducted a sexual assault exam on Doe the day following the rape. Regardless, appellant made no claim in his opening brief that the testimony of the Sunrise staff member witnesses—Marissa Tuttle, Vivian Bowers, and Kimberly Martin— constituted testimonial hearsay. In his reply brief, appellant contends "[i]t was all testimonial," apparently suggesting the testimony of the Sunrise staff members constituted testimonial hearsay. We disagree with appellant's belated contention.
Although the Supreme Court has not precisely defined "what constitutes a 'testimonial' statement, it held that, at a minimum, testimonial statements include 'prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations.' [Citation.] The court explained that the confrontation clause addressed the specific concern of '[a]n accuser who makes a formal statement to government officers' because that person 'bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' [Citation.]" (People v. Gutierrez, supra, 45 Cal.4th at pp. 812-813.) A hearsay statement is testimonial if " 'made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Crawford, supra, 541 U.S. at 52.) To date, the only cases in which the United States Supreme Court has considered whether hearsay is testimonial involved statements by or to a government agent. (People v. Blacksher (2011) 52 Cal.4th 769, 813.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court considered whether a statement made to a person unaffiliated with law enforcement was testimonial. There, the victim made a statement to a physician who asked the victim " 'what happened.' " (Id. at p. 986.) The court concluded the statement was nontestimonial, reasoning that, "[o]bjectively viewed, the primary purpose of the question, and the answer, was not to establish or prove facts for possible criminal use, but to help [the physician] deal with the immediate medical situation he faced." (Ibid.)By contrast, the court concluded that statements made by the victim to a sheriff's deputy in the hospital waiting room were testimonial in nature because the "consequences of lying to a peace officer" imparted the "requisite solemnity." (Id. at p. 986.)
We will assume, without deciding, that the statements made by Doe to detective Andrews, deputy Crase, and the SART examiner were testimonial in nature. However, based on the reasoning in Cage, we conclude the statements made by Doe to Sunrise staff members were nontestimonial. The Sunrise staff members were not trying to establish facts for a subsequent prosecution. The conversations lacked the "formality" and "solemnity that characterizes testimony by witnesses." (Cage, supra, 40 Cal.4th at p. 987.) The statements were not made to law enforcement personnel or to anyone acting in conjunction with law enforcement. No structured questioning occurred. Indeed, it was clear the primary purpose of the conversations was to relieve Doe's distress and to determine if there was an emergency that needed to be immediately addressed. Under the circumstances, Doe's statements "lacked those attributes of testimony by a witness that are the concern of the confrontation clause." (Id. at p. 971.) Therefore, appellant's rights under the confrontation clause were not violated by the admission of hearsay statements made to Sunrise staff members.
Further, to the extent appellant may claim the statements Doe made to Sunrise staff members constituted inadmissible hearsay under California law, the contention would fail. As noted above, appellant forfeited any hearsay claim he might have had by failing to object on that ground at trial. (People v. Panah, supra, 35 Cal.4th at p. 476.) "It is well settled that hearsay or other incompetent evidence . . . if received without proper objection or motion to strike is to be regarded as competent evidence in support of an order or judgment. [Citations.]" (Flood v. Simpson (1975) 45 Cal.App.3d 644, 649.) In any event, if a hearsay objection had been interposed at trial, the court would have been well within its discretion in overruling the objection on the ground the statements made to Sunrise staff members the morning following the assault fell under the hearsay exception for spontaneous or excited utterances. (See Evid. Code, § 1240; People v. Trimble (1992) 5 Cal.App.4th 1225, 1235-1236 [statements made nearly two days after event described by declarant fell under spontaneous utterance hearsay exception when statements were made at first secure opportunity for disclosure that caused outpouring of previously withheld emotions].)
In light of our conclusion that the statements Doe made to Sunrise staff members were properly admitted, we can say that any error in admitting testimonial hearsay statements through the testimony of the law enforcement witnesses was harmless beyond a reasonable doubt. The statements Doe made to the officers and to the SART examiner were almost entirely cumulative. Through the properly admitted testimony of Sunrise staff members, the jury learned that Doe made a consistent claim that she had been raped by an assailant who looked Mexican, had a mustache and dark hair, was roughly 40 to 50 years old, was an employee of Sunrise with a green caregiver's nametag, and had served residents in the dining room the night before. Doe also described in general terms the location and circumstances of the assault. Although she provided some additional detail to deputy Crase and the SART examiner, the description of the incident was consistent with what she had told Sunrise staff. Further, to the extent the testimony of the law enforcement witnesses was not cumulative, it tended to exonerate appellant. For example, she told deputy Crase she believed her assailant was named Greg and specifically did not think appellant was the one who raped her. Likewise, she told the SART examiner her assailant was named Greg.
In addition to the fact the testimony of the law enforcement witnesses was largely cumulative and favorable to appellant to the extent it was not duplicative, the evidence against appellant was overwhelming. In the face of DNA evidence, appellant admitted he had sexual intercourse with Doe on the evening of December 8, 2004. The only real issue at trial was whether the sexual encounter was consensual. Although appellant claimed for the first time at trial that he and Doe were lovers, his story was unpersuasive for a multitude of reasons, including his repeated lies to law enforcement and the implausibility—as confirmed by the impression of one of appellant's coworkers at Sunrise—that appellant would have a consensual sexual relationship with a significantly older woman under his care who was suffering from early stage dementia. There is no evidence that Doe considered the encounter consensual or that she ever referred to appellant as anything other than simply her caregiver. Accordingly, we conclude that, even if the court did err in admitting testimonial hearsay, any error was harmless beyond a reasonable doubt.
2. Subsequent Claim of Attempted Rape
Appellant contends the court erred by excluding evidence suggesting Doe was prone to making and then recanting rape claims directed at men with whom she had consensual sexual relationships. For the reasons that follow, we find no abuse of discretion in excluding the evidence.
a. Background
At a hearing conducted outside the presence of the jury pursuant to Evidence Code section 402, Sunrise staff member Kimberly Martin testified that Doe and Jack Pattee, another Sunrise resident, had a relationship. They were often together in common areas and would share kisses and hold hands. These events occurred after the charged assault because Pattee first moved to Sunrise in February 2005. Pattee suffered from dementia and was so forgetful it was not possible to have a full conversation with him. Doe had complained to Martin on three or four occasions that Pattee's behavior had been inappropriate. However, Doe would seem to forget her complaints and then be back with Pattee. She was never distraught and never complained to Martin that Pattee had touched her inappropriately or had raped her.
At a further Evidence Code section 402 hearing, the court heard from deputy sheriff Seth Culver, who had been dispatched to Sunrise on the morning of February 23, 2005. The deputy spoke to Sunrise's executive director, who relayed that Doe had told a caregiver somebody wanted to have sex with her in her room. Doe's room was checked but turned out to be empty. It was the executive director's understanding Doe had been upset and crying during breakfast. The deputy took a statement from Doe, who told the deputy she had been feeling lonely and afraid the previous night and went to a male friend's room for comfort. She and her friend returned to her room. She said the friend spent the rest of the night with her under the covers of her bed. Initially, Doe denied that she and her friend had sexual relations. Later, she "admitted to them making love," which she described as the man putting his penis inside her. She did not claim to have been raped. The deputy next spoke to Pattee, who denied having sex with Doe.
The trial court ruled that deputy Culver's testimony was inadmissible as more prejudicial than probative. The court observed the character and quality of the testimony was "almost nonexistent" in that it was based on multiple layers of hearsay and was unreliable. The court also told defense counsel that "[i]f you can find that caregiver, that's a different story."
Appellant's trial counsel subsequently found the caregiver, Carmen McIntosh, who testified at a further Evidence Code section 402 hearing. McIntosh recalled an incident in which Doe was crying at breakfast. When McIntosh asked Doe what was going on, she responded that a man about two tables away had "tried to rape her the night before." McIntosh knew the man Doe had pointed out as Jack. A few hours later, McIntosh saw Doe and Jack holding hands like they were girlfriend and boyfriend.
Appellant's trial counsel argued: "So, within a period of 24 hours, we have her accusing a man of attempted rape and telling the police she had consensual sex with him. The similarities are striking and obvious and clearly relevant." Appellant's trial counsel also argued that he was "trying to prove . . . that she has accused people of sexual misconduct and then recanted." After hearing argument, the trial court refused to permit McIntosh to testify, stating that the evidence was "more prejudicial than probative of the events in this case given the specific nature of this case and the specific type of victim with whom we are dealing." The court concluded the situation was not the "same at all" as the one involving appellant.
b. Analysis
The United States Constitution guarantees a criminal defendant " 'a meaningful opportunity to present a complete defense.' [Citations.]" (Crane v. Kentucky (1986) 476 U.S. 683, 690.) The right to present a defense generally requires that an accused be afforded the opportunity " 'to present all relevant evidence of significant probative value to his defense.' " (People v. Babbitt (1988) 45 Cal.3d 660, 684.) The right to present relevant evidence is not unlimited, however, and may be restricted in circumstances where necessary " ' "to accommodate other legitimate interest in the criminal trial process," ' " such as adherence to standard rules of evidence. (U.S. v. Scheffer (1998) 523 U.S. 303, 308.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court has broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352, and rulings under that section may not be overturned absent a clear abuse of that discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.)
Here, the trial court did not abuse its discretion by excluding evidence of the "attempted rape" claim. As the court pointed out, there are many ways in which the charged offenses are dissimilar from the attempted rape incident. Whereas Doe consistently and repeatedly claimed she had been sexually assaulted on December 8, 2004, at most she told one caregiver that someone attempted to rape her in February 2005. Nobody clarified what Doe meant when she said that someone "tried to rape her," and Doe did not refer to rape or any other wrongdoing when she was interviewed by a sheriff's deputy. It is not even clear what Doe had claimed in February 2005. One plausible interpretation of Doe's statement is that she was referring to events of the previous evening when she was afraid there was a man in her room. The "attempted rape" may well have been her fear that a man was lurking in her room, a fear that turned out to be unfounded. Given the trauma Doe suffered several months earlier, it would not be surprising for her to jump to an incorrect conclusion, particularly given her fragmented and deteriorating memory. Further, it would seem odd for her to refer to her encounter with Jack Pattee as an "attempted rape" when she admitted she had sought out his companionship and had actually engaged in sexual intercourse with him. It also bears mention that Doe openly acknowledged her relationship with Pattee and never suggested to the deputy or to Kimberly Martin, who was aware of the relationship, that Pattee had attempted to sexually assault her. By contrast, aside from appellant's claim at trial that he was involved in a consensual relationship with Doe, there was no other evidence supporting or even suggesting the existence of such a relationship. Moreover, when Doe was asked if appellant had raped her on the night of December 8, 2004, she could have clarified that they had a relationship and engaged in consensual sex, just as she clarified the nature of her relationship with Pattee when asked. She did not. Instead, she told the deputy that she "didn't think it was" him that raped her.
In short, determining what Doe actually said, why she said it, and the context of the events surrounding her statement would have required an undue consumption of time and confused the jury. (See, e.g., People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-1458 [allowing evidence of allegedly false prior rape claims made by rape victim would have confused jury and consumed undue time.]) Further, by allowing an examination of Doe's sexual activity at Sunrise, the evidence would have confused the issues by exposing a sexual assault victim's sexual history, an area of inquiry that is generally forbidden unless strict procedures are followed to ensure the history is relevant to the victim's credibility. (People v. Bautista (2008) 163 Cal.App.4th 762, 781-781; Evid. Code, § 782.) Under the circumstances, we conclude there was no abuse of discretion in excluding evidence of the "attempted rape" claim that Doe purportedly recanted.
Even if the court erred, any error was harmless. An error in the admission or exclusion of evidence under Evidence Code section 352 is tested for prejudice under the standard announced in People v. Watson (1956) 46 Cal.2d 818. (People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial court's judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson, supra, at p. 836.) Here, it is not reasonably probable that a result more favorable to appellant would have been reached in the absence of any error. As noted above, the evidence against appellant was overwhelming. Testimony regarding a subsequent incident in which Doe may have claimed a fellow resident attempted to rape her would have done little to stem the tide of evidence supporting the conclusion that appellant's sexual encounter with Doe was not consensual. Further, for the reasons described above, the February 2005 incident was not substantially similar to the December 2004 incident that gave rise to the charges against appellant.
3. Evidence of Third Party Culpability
Appellant contends the court erred by excluding evidence concerning Roman Vasquez, a former boyfriend of Doe, whose DNA was found on the sweat pants Doe had been wearing on the night of the sexual assault. There was no error.
Doe had testified at the conditional examination that she considered Vasquez her boyfriend at one point. She was not involved in a relationship with him for very long and only saw him once while she was at Sunrise. She denied having a sexual relationship with him at Sunrise and specifically denied that he was the man who had raped her in December 2004.
In a pretrial motion to exclude third party evidence, the prosecutor stated that a semen stain found on Doe's sweatpants had a DNA profile consistent with that of Vasquez. The prosecutor described the DNA sample as degraded and claimed Vasquez's last sexual contact with Doe had been at least two years before the date of the charged offenses. It was also pointed out that Vasquez had been eliminated as a potential donor of the semen found in Doe's underwear and in her vaginal cavity.
At an Evidence Code section 402 hearing, appellant's trial counsel told the court that, if appellant testified, there might be similarities between appellant's testimony and an alleged sexual encounter between Vasquez and Doe. If there were similarities, counsel informed the court he might seek to introduce evidence of the encounter. However, before appellant even testified, appellant's trial counsel stipulated that any evidence concerning Vasquez was irrelevant and inadmissible. Counsel subsequently confirmed his understanding that, absent a further showing, evidence that Vasquez's semen had been found in a pair of Doe's sweatpants was inadmissible.
Any failure to introduce evidence concerning Vasquez was invited by defense counsel's concession the evidence was irrelevant and inadmissible. Although defense counsel suggested the evidence might become relevant following appellant's testimony, counsel made no attempt to explain how evidence concerning Vasquez became relevant in light of that testimony. Accordingly, appellant's argument fails.
4. Sufficiency of the Evidence
Appellant argues there was insufficient evidence to support his conviction. We disagree.
"When reviewing a judgment for sufficiency of the evidence, an appellate court 'must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.]' [Citation.] 'The reviewing court presumes in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence.' [Citation.]" (People v. Bamberg (2009) 175 Cal.App.4th 618, 625.)
It is well settled that " '[a] party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.]" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) "[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] Thus, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived." [Citations.]' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
In this case, we could consider appellant's challenge to the sufficiency of the evidence as having been forfeited because appellant failed to set forth or summarize all of the material evidence relevant to the issues in dispute. Instead, appellant offered a one-sided and concise summary of the facts. Although we would be justified in considering appellant's claim forfeited on appeal, we briefly address the issue to confirm the claim fails on the merits.
Appellant focuses on the fact Doe was unable to identify him as her assailant. He also emphasizes that Doe suffered no signs of trauma consistent with a forcible sexual assault.
For reasons already discussed in this opinion, the evidence against appellant was overwhelming. The only issue was whether the admitted sexual encounter between Doe and appellant was consensual. Doe's failure to identify appellant as the man who assaulted her lacks significant persuasive value as a fact tending to exonerate appellant in light of his admission that his sexual encounter with Doe largely paralleled her description of the assault. Further, the lack of significant trauma is unsurprising. Doe stated she complied with her assailant's demands out of fear that he would harm her.
By contrast, there was substantial evidence tending to show the sexual encounter was nonconsensual. Doe was crying almost hysterically at breakfast the morning following the assault and consistently reported she had been raped. She described the rapist in a way that matched appellant's description. Although appellant claimed at trial the sexual encounter was consensual, he had previously lied to the police about having a sexual relationship and having seen her on the night in question. Further, one of appellant's coworkers, who had the opportunity to observe appellant and Doe closely, believed it was impossible the two had a romantic relationship. We conclude there was substantial evidence that could lead a reasonable trier of fact to find appellant guilty beyond a reasonable doubt.
5. CALJIC 2.21.2
The court instructed the jury with CALJIC No. 2.21.2 as follows: "A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars." Appellant argues there was no evidence that a witness had lied on the stand. Therefore, he claims it was error to give CALJIC 2.21.2, which might have confused the jury because appellant admitted to lying to investigators when he was originally interviewed. The argument is meritless.
The California Supreme Court has approved CALJIC No. 2.21.2 as a correct statement of the law. (People v. Beardslee (1991) 53 Cal.3d 68, 94.) As a general matter, it is appropriate to give the instruction when there is a direct conflict in the testimony of two or more witnesses that justifies the giving of the instruction as a guide to the jury in evaluating and comparing credibility. (People v. Reyes (1987) 195 Cal.App.3d 957, 965-966; People v. Johnson (1986) 190 Cal.App.3d 187, 192-194.)
Here, there was a direct conflict between appellant's testimony, in which he claimed to have a romantic sexual relationship with Doe, and that of his coworker, Vivian Bowers, who testified that it was not possible appellant and Doe had a romantic relationship. There was also a direct conflict between various witnesses who testified that Doe was unable to live on her own because of her memory loss and the testimony of appellant's coworker, Angela Hogan, who described Doe as "independent" and apparently not suffering from any physical or mental limitations as of December 2004. These discrepancies justified giving CALJIC No. 2.21.2.
Even if it was error to give the instruction, any error was harmless. Because the claimed error concerns the application of state law, the Watson test governs whether the error was prejudicial. (See People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Applying that standard, we conclude it is not reasonably probable the result would have been more favorable to appellant had the purportedly erroneous instruction not been given. The instruction was not directed specifically at appellant but instead could have been applied to any witness. The instruction did not require the jury to reject any testimony but simply described the circumstances under which the jury was permitted to do so.
Further, to the extent appellant's claim is that the jury might have been confused because appellant admitted that he lied to investigators about the crime, a specific instruction addressed that circumstance. The court instructed the jury as follows: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide." This instruction specifically addressed the weight to be given the fact that appellant lied before trial. By comparison, CALJIC No. 2.21.2 is addressed to the circumstance of a witness lying on the stand. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Here, the instructions distinguished between a lie made before trial and one made by a witness on the stand. We presume the jury was capable of distinguishing between those two circumstances and applying the instructions correctly. Any error was therefore harmless.
6. Lewd Acts Upon a Dependent Person
Appellant raises three separate claims challenging his convictions for committing a lewd act upon a dependent person. We address the claims in turn.
First, appellant argues the evidence was insufficient to establish Doe was a dependent person. Relying primarily on the testimony of Angela Hogan, a Sunrise staff member who testified that Doe was independent and did not appear to have any physical or mental limitations, appellant contends "[t]he medical evidence did not support the notion that she was a dependent person." For purposes of Penal Code section 288, subdivision (c)(2), a dependent person is defined in relevant part as follows: "[A]ny person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age." (Pen. Code, § 288, subd. (f)(3).)
Because appellant has failed to set forth all the relevant evidence for this court's consideration, we could consider his substantial evidence challenge forfeited. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.) We also note that Hogan, who oversaw the caregivers at Sunrise, did not testify as a medical professional and explained that her contact with Doe was limited in that it usually consisted of very brief conversations. In any event, there was substantial evidence in the record establishing that Doe was a dependent person as of the time of the charged offenses. Among other things, Doe's daughter testified that her mother had severe memory problems and could not care for herself. That is why her daughters placed her in an assisted living facility. Further, the neurologist who testified at trial opined that Doe was probably suffering from early stage dementia, a diagnosis that was confirmed as time passed and Doe's condition worsened. He also explained that people suffering from early stage dementia often cannot function on their own and often require supervision. Doe's malnutrition and dehydration, too, were indicators that she was unable to properly care for herself. The nurse practitioner who evaluated Doe in late 2004 testified that Doe had a history of not caring for herself. This testimony constitutes substantial evidence that would lead a reasonable trier of fact to conclude Doe was a dependent person with impairments that substantially restricted her ability to carry out normal activities and to protect her rights.
Second, appellant contends there is no evidence he possessed the specific intent to arouse, appeal to, or gratify Doe's sexual desires, an intent he claims is required under Penal Code section 288, subdivision (c)(2). Appellant misreads the statute, which provides in relevant part that a person is guilty of committing lewd acts upon a dependent person if that person does so "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the [victim]." (Pen. Code, § 288, subds. (a) & (c)(2), italics added.) Under the plain language of the statute, the intent requirement is met whether it is directed at the perpetrator or the victim. Thus, appellant's claim fails because it was unnecessary to prove he sought to arouse Doe's sexual desires.
Appellant's third and final challenge to his convictions for committing lewd acts upon a dependent person is that he was improperly convicted of those charges because they are lesser-included offenses of forcible rape and forcible oral copulation. We disagree.
There are two tests to determine whether a crime qualifies as a necessarily included lesser offense of the charged offense—the "elements" test and the "accusatory pleading" test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) A crime will be considered a necessarily included lesser offense if it satisfies at least one of the tests. (Ibid.) "The elements test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]' [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (Ibid.) "Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." [Citation.]' [Citations.]" (Id. at pp. 288-289.)
Appellant's claim fails regardless of which test is applied. Under the elements test, committing a lewd act upon a dependent person is not a lesser included offense of forcible rape or forcible oral copulation because the former offense includes an element not included in the latter offenses—the requirement that the victim is a dependent person. (Pen. Code, §§ 261, subd. (a)(2), 288, subd. (c)(2), 288a, subd(c)(2).) It is possible to commit forcible rape and forcible oral copulation against victims who are not dependent persons. Appellant's claim also fails under the accusatory pleading test because, as charged, neither the forcible rape charge nor the forcible oral copulation charge alleged the victim was a dependent person. Both the rape and oral copulation charges included a special allegation that Doe was a vulnerable person because she was 65 years or older at the time of the offenses. A person can be 65 years or older without being a dependent person as that term is used in Penal Code section 288, subdivision (c)(2). Therefore, it was possible to convict appellant of forcible rape and forcible oral copulation as charged without necessarily establishing that he was guilty of committing a lewd act upon a dependent person, which required proof that the victim was a dependent person.
We conclude appellant was properly convicted of the charges that he committed lewd acts upon a dependent person.
7. Ineffective Assistance of Counsel
Appellant contends he was denied his constitutional right to the effective assistance of counsel. As we explain, his six separate claims of ineffective assistance of counsel each lack merit.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Appellant states on a number of occasions that the record contains no satisfactory explanation for the actions of trial counsel that he challenges on appeal. His assumption appears to be that the actions or omissions he finds questionable amount to constitutionally defective performance on a silent record that does not affirmatively disclose why counsel pursued or declined to pursue a particular course of action. To the contrary, "[a] claim on appeal of ineffective assistance of counsel must be rejected ' "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' [Citations.] Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, 'the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsel's conduct or omission.' [Citation.]" (People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
a. Testimonial Hearsay
Appellant contends his trial counsel was ineffective for failing to object to testimonial hearsay under Crawford. The contention fails for a number of reasons, which are more fully explained in the first section of the legal discussion, ante. First, there was a conceivable tactical reason for counsel to permit law enforcement witnesses to testify as to Doe's testimonial out-of court statements without objection. As explained above, to the extent the witnesses' testimony was not duplicative of other evidence, it tended to be favorable to appellant in that Doe denied appellant's involvement and claimed the assailant wore a nametag bearing the name Greg. Second, the lack of an objection did not amount to defective representation because any such objection would have been properly denied on the ground the prosecutor had satisfied the requirements of Crawford. Further, in light of our conclusion that any error in failing to exclude testimonial hearsay was harmless beyond a reasonable doubt, appellant necessarily cannot establish that he was prejudiced by his counsel's failure to object.
b. Miranda
Appellant argues that counsel was ineffective for failing to challenge the use of statements he made at the sheriff's office without having been advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The argument lacks merit.
As reflected in the preliminary hearing transcript, appellant was interviewed at the sheriff's office by a detective. The detective did not give a Miranda warning and informed appellant he was not going to arrest him. He also told appellant he was free to end the interview. The detective made a point of showing appellant that the door was not locked. Appellant agreed to speak with the detective but at some point during the interview "said something about an attorney." Then he had another question, which the detective followed with a clarifying inquiry. When appellant said he did not want to speak further without an attorney, the detective ended the interview.
In Miranda, the court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." (Miranda, supra, 384 U.S. at p. 444.) The court clarified that "custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Ibid.) "Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.' [Citation.]" (California v. Beheler (1983) 463 U.S. 1121, 1125.) In In re Kenneth S. (2005) 133 Cal.App.4th 54, 65-66, the court concluded that no Miranda warning was required when a juvenile defendant appeared voluntarily at the police station, was interviewed in a room with the door left open, was told he was not under arrest and was free to leave, and was informed that the police had information suggesting he was involved in the crime under investigation.
Based upon the limited record available to this court, we cannot say the interview of appellant at the sheriff's office amounted to a custodial interrogation that required the officer to provide a Miranda warning. Appellant nevertheless contends that his counsel's performance was defective because the detailed circumstances surrounding the interview were not explored by appropriate motion or objection. However, the record sheds no light on why appellant's trial counsel chose not to pursue the matter. He may have investigated the circumstances and determined he had no grounds to object to the evidence or pursue a suppression motion. The record does not affirmatively rule out such a possibility, and abstaining from pursuing a meritless motion does not amount to defective representation. Thus, the claim lacks merit because we have no basis to conclude there was no possible tactical reason for counsel's inaction.
Furthermore, we do not think there is a reasonable possibility the outcome would have been any different if counsel had sought to exclude his appellant's statements to the detective. It is far from certain the relief would have been granted, and even if counsel were successful in keeping out the statements—which constituted a denial and not a confession—there was still overwhelming evidence that appellant committed the crimes. Ultimately, appellant had to explain why his DNA was found on the victim and in her underwear. His initial denial to law enforcement of any involvement with Doe unquestionably damaged his credibility at trial. Even without that evidence, however, appellant would have been forced to explain why no one knew about his supposed relationship with Doe, why there was no evidence to corroborate the existence of the relationship, and how it was that he engaged in a romantic relationship with a much older, dependent person for whom he acted as a caregiver. Under the circumstances, we must reject appellant's claim of ineffective assistance of counsel premised on the purported failure to pursue an objection or motion based on a Miranda violation.
c. Past Sexual Conduct
In a cursory, two-sentence argument in his opening brief, appellant claims his counsel was ineffective for failing to proceed under Evidence Code section 782 to present evidence of Doe's past sexual conduct. The only past sexual conduct referred to by appellant concerns Ramon Vasquez, Doe's former boyfriend.
Appellant fails to explain in his opening brief how evidence of Doe's prior relationship with Vasquez would have assisted him at trial. In his reply brief, he claims the "evidence of Ms. Doe's active sex life together with her occasional rape fantasy would have painted an entirely different picture of Ms. Doe and would [have] given credibility to Appellant's version of what occurred." It would have been a questionable strategy to portray the victim in such a negative light, particularly given that our review of the record does not support appellate counsel's assertions that Doe "had a very substantial libido" and "had a tendency to fantasize rape." Further, the record makes clear that appellant's trial counsel made a reasonable tactical decision to avoid the strategy appellate counsel now claims should have been pursued at trial.
In closing argument, appellant's trial counsel stated that, "at no time . . . am I suggesting that (Jane Doe) is a liar, that (Jane Doe) is a woman of loose moral values . . . [¶] I'm not trying to say anything negative of (Jane Doe), and I disavow any statements that can be interpreted that way. There's nothing wrong with this woman." ~(5RT 864:19-27)
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To the extent appellant is suggesting that Vasquez may have committed the sexual assault, the argument is inconsistent with appellant's defense at trial, in which he acknowledged a sexual relationship but claimed it was consensual. It would have made no sense for appellant's trial counsel to argue that a third party was the culprit when his client had already admitted engaging in the acts Doe described as an assault. In short, appellant's trial counsel had a valid tactical reason for declining to introduce evidence relating to Vasquez. In addition, appellant has utterly failed to explain how he was prejudiced by his counsel's purported failure to "get in the Vasquez evidence."
d. Failure to Use Conditional Examination
Appellant next contends his trial counsel was ineffective because he failed to introduce the transcript of the conditional examination, which he claims "had much that was exculpatory."
Appellant does not identify what exculpatory information is purportedly contained in the conditional examination. Presumably, he is referring to Doe's inability to identify the perpetrator. However, Doe made a number of statements in the conditional examination that would have been very damaging to appellant's defense. Among other things, she claimed that a man who "was supposed to be [her] caregiver" raped her. She also described the oral copulation and rape incidents in much the same way she had described them to police investigators months before. Further, unlike Doe's statements that came into evidence through the law enforcement witnesses, Doe's testimony at her conditional examination did not include any mention of a nametag bearing the name "Greg," nor was she questioned about whether appellant had been the assailant. Thus, in many respects the testimony of the law enforcement witnesses was more favorable to appellant than Doe's testimony during the conditional examination.
Appellant's trial counsel could have made a reasonable tactical decision that the conditional examination, taken in its entirety, was more damaging to the defense case than the statements that were used at trial. Appellant has therefore failed to show that counsel's performance was deficient. By failing to identify or discuss the significance of any supposedly exculpatory material contained in the conditional examination, appellant has also failed to explain how he was prejudiced by his counsel's decision not to use the conditional examination at trial.
e. Continuances
Appellant argues his counsel provided constitutionally ineffective assistance by repeatedly continuing the case for years. He asserts that Doe's testimony would have been favorable to his client if her memory had not been allowed to deteriorate.
Appellant's claim fails because he has not demonstrated the defense delays were unnecessary to properly investigate the case and prepare for trial. Further, there was a conceivable tactical basis for allowing time to pass. There was no certainty as to what Doe would recall on the stand. If appellant had pursued his consent defense at an earlier trial held before Doe's memory was allowed to deteriorate further, it would have been very damaging if Doe denied the existence of a romantic relationship with appellant. Interestingly, appellant's trial counsel failed to pursue any form of consent defense at the 2005 conditional examination and did not ask Doe if she recalled being in a relationship with appellant. As it was, by the time of trial in 2009, Doe was in no position to confirm or deny the existence of a past relationship with appellant. We conclude appellant has not demonstrated that his trial counsel's performance was deficient.
f. Character Evidence
Appellant claims his attorney was ineffective at trial because he did not use the "substantial character evidence" that was presented to the court at time of sentencing.
Again, there is a conceivable tactical reason for counsel's actions. The prosecutor is generally prohibited from introducing evidence of a defendant's character to prove conduct. (Evid. Code, § 1101.) However, if the defendant chooses to introduce character evidence, the door is open for the prosecutor to introduce character evidence to rebut the defense showing. (Evid. Code, § 1102.) There is a well recognized danger that good character evidence offered by the defense will lead to an unwelcome testing of the basis for the opinions of the witnesses during cross-examination. (See, e.g., People v. McAlpin (1991) 53 Cal.App.3d 1289, 1315 (conc. & dis. opn. of Broussard, J.).) The prosecution is also free to call rebuttal witnesses to testify as to a defendant's bad character. (Ibid.)
It would have been a reasonable tactical decision for appellant's trial counsel to conclude that opening the Pandora's box of character evidence would be more damaging than helpful to his client. On this record, we cannot conclude there is no possible, satisfactory explanation for counsel's decision. Accordingly, appellant has failed to demonstrate that his attorney's performance was defective.
8. Cumulative Error
Finally, appellant contends the cumulative effect of the trial court's errors deprived him of a fair trial and mandate reversal. We have rejected appellant's individual claims of error and, in the alternative, concluded that appellant was not prejudiced even if there was error. Consequently, no cumulative prejudicial effect exists that would require reversal. (People v. Sapp (2003) 31 Cal.4th 240, 316.)
DISPOSITION
The judgment is affirmed.
McGuiness, P.J.
We concur:
Pollak, J.
Jenkins, J.