Filed 4/12/16 P. v. Luna CA1/2
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141622
v.
JUAN ANTONIO LUNA,                                                   (Contra Costa County
                                                                     Super. Ct. No. 051221514)
         Defendant and Appellant.


         Defendant Juan Luna appeals from the judgment on a jury verdict convicting him
of aggravated sexual assault of a child by foreign object penetration and committing a
lewd act upon the body of a child under 14 years of age, both charges stemming from
defendant’s sexual assault of his stepdaughter, Jane Doe. During opening statement,
defendant’s counsel acknowledged an “awkward moment” between defendant and Doe,
but told the jury it would hear evidence that the moment was an accidental touching of
defendant’s penis to Doe’s back in an incident that left defendant “embarrassed” and that
he promised would never happen again. Defense counsel presented no such evidence,
however, an omission that defendant contends constituted ineffective assistance of
counsel. We disagree, and we affirm.
                                                 EVIDENCE AT TRIAL
         Jane Doe’s Initial Statements to the Police
         On October 2, 2012, Pittsburg Police Officer Michael Sibbitt and his partner
responded to a call from Hillview Middle School regarding a report of potential child
molestation. They met with Doe, who was then 12 years old, interviewing her in a


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conference room next to the principal’s office. She was initially forthcoming and open
when discussing her background and interests, but became very shy and nervous when
describing three separate incidents involving defendant.
       The first incident occurred about three weeks before school started on August 29,
2012. Doe went into the garage that night to help defendant with his online bill-paying.
Because he was not fluent in English, she often translated for him. Defendant was
wearing a poncho, and Doe believed he had no clothing on underneath because she could
see his bare thighs. She sat down in a chair in front of the computer, and defendant sat
down right next to her, which was uncommon. He placed one arm around her shoulder,
and she felt him place his other hand on her thigh, which made her uncomfortable.
Because she felt very nervous, she got up and went to the bathroom. When she came out,
she told defendant she was going to go to bed. He got out of his chair, and she could see
his penis underneath the poncho. He told her to stop, stood in front of her, pulled her
pants down, and spun her around. He forced her to bend over, and she felt his erect penis
enter her buttocks and press against, but not enter, her anus. She felt pain and realized he
had “raped” her, so she pulled up her pants and ran into the house. In the bathroom, she
pulled her pants down, wiped her crotch, and noticed she was very “wet down there.”
The following morning, defendant came into her bedroom and told her not to tell
anybody what had happened because he did not want to get in trouble.
       A second incident happened the weekend after school had started. Doe was again
in the garage helping defendant pay bills, when he sat down next to her wearing nothing
but his poncho. He grabbed her pants and pulled them down to her knees. Fearing he
was going to assault her again, she pulled her pants up and ran into the house.
       The third incident occurred on September 30, 2012. Doe was home with her
younger sister and defendant, and the two girls were watching television. Defendant told
Doe’s sister to take a shower so she went into the bathroom. From where Doe was sitting
on the couch, she had a clear view of the bathroom door. After about 10 minutes, Doe
heard the water turn off and then saw defendant go into the bathroom and shut the door
while her sister was still in there. She heard the water turn back on and the shower door


                                             2
open and close. Another ten minutes later, she heard the water turn off and the shower
door open and close again. Her sister, crying and wearing nothing but a towel draped
over her shoulders, ran out of the bathroom and into her bedroom. Doe saw redness on
her bottom. She then saw defendant, also naked and wet, leave the bathroom, using two
smaller towels to cover his genitals and buttocks. Doe told Officer Sibbitt that this
incident prompted her to finally tell someone what defendant had done.
         Jane Doe’s Forensic Interview
         On October 9, 2012, Doe was interviewed by forensic interviewer Pat Mori at the
Child Interview Center (CIC). The jury was shown a videotaped recording of the
interview, the substance of which was this:
         Doe understood she was at the CIC because she had told a counselor at school that
defendant raped her. Doe regretted telling the counselor that because it was the “biggest
lie” she had ever told. She was mad at defendant because she believed he had broken her
phone but would not buy her a new one. Now, he was in jail and she was living with her
mother, siblings, and uncle, which she did not expect to happen. She told her mother and
the counselor that the story was not true, and the counselor told her she needed to tell the
police, but Doe had not done so.
         Doe did not know what “rape” meant. She was studying sex education at school,
but the teacher had not answered her question about it. Her friends said it was like child
abuse.
         Two days after Doe talked to the counselor, someone from family services came to
school and spoke to Doe about what she told her counselor. The police then got
involved. Mori asked Doe what she told the police, and Doe responded that she told
them the same thing she had told the counselor, that defendant had raped her. The police
asked about a lot of details, like about what she was wearing (a long sleeve shirt and
leggings). They asked if she felt defendant’s “bottom part”—which Doe called his
“thing”—go in her, and she said that it went in her “front part,” where she “goes pee,”
and it “just felt weird . . . .” She did not know what was going on and was thinking,



                                              3
“[W]hat is he gonna do? Is this something bad?” But then she stopped thinking because
she was falling asleep.
       The incident happened in their garage, which was like a guest room with a
computer, a small bed, a couch, and a pool table. Defendant would do his paperwork out
there, and Doe would go out there to help him with his bills because he could not write in
English and needed her to translate.1
       That particular night, Doe had been in her room using her phone, and defendant
called her on her phone and said he needed help with his papers. When she went out to
the garage, she was wearing a shirt and leggings. Defendant was wearing a poncho, but
she did not know what else he was wearing because she could not see under the poncho.
She started to help him with his bills on the computer and then was using Facebook,
while defendant was sitting next to her on the couch. She got tired and was falling asleep
when defendant picked her up and put her on his leg, and she felt his thing in her. She
did not say anything because she did not really know what was going on.
       Doe then abruptly told Mori that everything she said was a lie. Mori explained to
her at length that it can be confusing when someone who is like a father does something
like this, that it was Mori’s job to make sure Doe and other children were okay, and that
Doe needed to tell the truth. Mori told Doe that it sounded like what Doe told her had in
fact happened and asked, “[S]o was that the truth that day?” Doe responded, “Mm-mm.”
Mori asked how Doe knew about the stuff she was telling her, and Doe responded that
her friend said her uncle had molested her, and then all of a sudden her friend no longer
went to that school. Mori asked if what Doe said about feeling defendant’s “thing” was
what she told the police and the person from family services, and Doe said it was, adding,
“I don’t know why I said it though. Like I was really, really mad at him.” Doe did not
know why, of all the things she could have said, she had said he raped her.
       After a digression to talk about unrelated topics, the discussion returned to what
happened in the garage the evening in question. Doe said the lights were off in the

       1
         By this point in the interview, it no longer sounds as if Doe was recounting what
she told the police but was instead describing what happened in the garage.

                                             4
garage, and she and defendant were both sitting on a chair in front of the computer. He
usually wore shorts but she did not know if he was then because she felt “his hair and
stuff” poke her legs through her leggings. She started to fall asleep and felt him start to
take her pants off so she jumped up and went to the bathroom. When she returned,
defendant was no longer sitting at the computer. She sat back down and started to fall
asleep again, and that was when she “felt his thing.” She was on defendant’s leg and then
was sitting between his legs. He pulled her back and she felt him scooting forward, and
then she felt his thing “in the middle,” “kinda like in my butt and then it was kinda like in
my front part . . . .” She guessed he had pulled her pants and underwear down. It was a
“weird feeling” and she did not know what was going on. She did not want to know what
was going to happen, so she got up and left.
         At the time, Doe had felt like she was going crazy because she had heard her
friends say they had “done it” with their boyfriends and she was wondering if this was the
same thing. She described it as like those commercials where there is an angel on one
side saying something bad was going to happen, while there was a devil on the other side
saying something good was going to happen.
         Doe told Mori that her cousin had been molested by Doe’s uncle. She was taken
away from her mother, and her father went to jail and then was deported. Doe’s cousin
believed it was all her fault, and she did not want Doe to go through the same thing.
When she told Doe that, Doe thought, “I don’t wanna leave my mom. I don’t wanna live
without my brothers and sisters ‘cause it’s gonna be hard for me ‘cause like even
though . . . people do that to me, I don’t care ‘cause I don’t wanna live without my mom.”
         After Doe left the garage, she went to the bathroom and everything felt normal
again.
         Doe knew defendant did not want her to say anything about what happened
because he told her, “I don’t want you to say anything so please don’t say nothing ‘cause
I’m scared I might get taken away from your sister . . . . I’m pretty sure I know the
consequences. I’m pretty sure I might go to jail or something and I’m—might not even
get to see you guys anymore.” This scared Doe, who thought, “I wanna say something


                                               5
‘cause I don’t want you to do it again but at the same time I don’t wanna say nothing
‘cause I don’t want my little sister to feel the same way I felt without a dad.” She
sometimes worried about defendant doing something to her sister, but then thought he
would not do that because he was her “real dad.”
        On a second occasion, Doe was again in the garage helping defendant with his
paperwork at the computer. He was again sitting next to her on the couch. When he tried
to pull down her leggings, she said, “No,” and got up and left.
        At the time of the interview, defendant was in jail, and they had to lie about why
because they did not want him to lose business. It was hard for Doe because her mother
and defendant’s brother were telling her to lie when people usually tell her not to lie and
she did not want to lie. At the same time, she did not want defendant to lose his job
because of what he did.
        When asked what she thought about what happened to her, Doe responded, “I
think it’s a bad thing that he did that but then like I know it’s a bad thing and everything
but I feel like it was the right thing to say something. [¶] . . . [¶] ‘Cause obviously if I
wanted it to stop, I—I guess you have to tell somebody about it.” And when asked how
she felt at the end of the interview, Doe said, “I feel better . . . [¶] about saying
things . . . .”
        Jane Doe’s Preliminary Hearing Testimony
        At a preliminary hearing on December 12, 2012, Doe was accompanied to the
stand by Crystal Carey, a victim’s advocate with the Contra Costa County District
Attorney’s Office. At the hearing, Doe testified that defendant did not touch her
inappropriately. The court then took a break, and Doe went outside with Carey and the
prosecutor. Doe was sad, crying, and very shy. According to Carey’s testimony at trial,
she and the prosecutor attempted to comfort Doe and make her feel okay. The prosecutor
nonconfrontationally asked Doe why she had testified the way she did, but Carey did not
recall Doe’s response.
        Doe then returned to the courtroom and took the stand again. The prosecutor
asked her if there was something she would like to tell the judge, and Doe turned to the


                                                6
judge and said, “I lied.” According to Carey, the judge asked if she had lied because she
was worried about her family, and Doe nodded her head. She shook her head when asked
if she did not want to be taken away.
       Doe testified at trial, however, that the reason she told the judge she had lied at the
preliminary hearing was because during the break, one of the women—presumably the
prosecutor—asked her why she had lied, and she responded that she had told the truth.
The woman then told her to go back into the courtroom and tell the judge she had lied.
She got upset because she had to say she had been lying when everything she had said
was the truth. Carey denied at trial that either she or the prosecutor accused Doe of lying
and demanded she go back into the courtroom and tell the judge she had lied.
       Jane Doe’s Trial Testimony
       In August 2012, 12-year-old Doe was living in a house in Pittsburg with her sister,
brother, mother, and defendant (whom she referred to as her dad, although he was her
stepfather). Her mother, who spoke only Spanish, cleaned homes, and defendant, who
spoke a little English, had his own landscaping business. Because Doe spoke both
Spanish and English, she sometimes translated for her parents. The house had a garage
that had been converted into an office with a computer and a bathroom.
       The night in question, Doe went to the garage to help defendant with his bills on
the computer. She thought he was wearing a poncho, although she did not “really
remember.” She sat down in a chair and helped him with one bill and then went to her
room because she was falling asleep.
       Doe initially claimed that she did not recall speaking to the police in August 2012
about an incident involving defendant. She then acknowledged speaking to the police
and telling them something happened while she was in the garage, “that there was a little
problem . . . .” She did not remember what she told them, however, and she specifically
did not remember telling them that defendant was wearing a poncho with nothing
underneath, that he touched her private area, that she felt something on her thigh when
she was sitting next to him, that she was nervous and did not want to look down to see
what was on her thigh, or that she went to the bathroom before going to bed and felt


                                              7
something wet when she wiped her private area. She denied that defendant had touched
her anywhere near her private area or that the next morning he told her not to talk about
what happened in the garage. Doe also testified she did not remember telling an
interviewer at CIC that defendant touched her in her private areas when they were in the
garage.
       Doe remembered telling the police about another time—this one, the first weekend
after school started—when she was in the garage helping defendant translate a bill that
was on the computer. Nothing else happened other than that she helped him pay bills.
He was not wearing the poncho that time, and she did not remember telling the police
that he was, nor did she remember telling the police that he grabbed her pants and pulled
them down or that she got scared and ran out of the garage.
       Concerning a third incident in late September, Doe testified that her mother was
going to the store and Doe stayed home with her siblings and defendant. Her mother told
the children to take showers while she was gone and then left. Doe took the first shower
and then sat on the couch watching television while her sister showered. After her sister
was done with her shower, their mother returned from the store. Doe did not see
defendant go into the bathroom or get in the shower while Doe’s sister was in there, and
she did not remember telling anyone that something else had happened or that she was
scared for her sister.
       Doe remembered talking to a counselor at school, but she told her that a friend was
being molested by her father, not that she was being molested by defendant. Doe
speculated that the counselor misunderstood and thought she was talking about herself.
At some point, a police officer arrived at school, and Doe was “pretty sure” she made it
clear to him that she was not talking about herself but someone else.
       Doe testified that she did not remember telling the CIC interviewer that defendant
had molested her, rather than that the incident involved a friend. She claimed she felt
pressured to change her story to say that it was about her because the interviewer “looked
mean” and seemed as if she was going to tell her to lie. Doe did recall telling the
interviewer about a cousin who was molested by her father and when she told someone


                                             8
about it, the father was deported to Mexico and the whole family was separated. Doe did
not remember talking to her cousin about what defendant had done and the cousin telling
her that she did not want Doe to go through the same thing. Doe did not remember
telling the interviewer that even though she had been molested, she wanted her family to
stay together, nor did she tell the interviewer that her mother and uncle were telling her to
lie about what happened for defendant’s good.
       Doe did not remember telling her cousin that she lied to the police because of a
cell phone. She remembered that just before school started, she was mad because her
mother broke her cell phone. Although she claimed she always knew her mother broke
her phone because she threw it against the wall in front of her, she told her mother she
was mad at defendant because she thought he was the one who broke the phone.
       Forensic Evidence
       The police recovered defendant’s poncho from the garage. An analysis of the
poncho revealed a substance that the laboratory technician was “very confident” was
semen.
       Child Sexual Abuse Expert Anthony Urquiza
       Child sexual abuse expert Anthony Urquiza testified about child sexual abuse
accommodation syndrome, which was the subject of a 1983 journal article written to
dispel misperceptions about sexual abuse. One such myth is that children should be wary
of strangers, because in fact children are most often sexually abused by someone with
whom they have an ongoing relationship. Another myth is that if a child is sexually
abused, he or she is going to disclose that abuse right away, when in fact most children
keep it a secret and delay disclosure. Another myth is that if a child is sexually abused,
there will be an outward indication that something is wrong.
       Urquiza testified that one of the reasons children delay in disclosing abuse is
because of a fear of something bad happening to either themselves or the abuser, who is
often someone important to them, such as a parent. A consequence of disclosing is often
retraction, or taking back the allegations of abuse, because of familial pressure.



                                              9
         Another myth is that a child who is talking about sexual abuse will be distraught,
when in fact children who have been sexually abused often suppress any feelings of
embarrassment, humiliation, shame, or disgust. This leads to dissociation from the reality
of what happened, such that when discussing what happened, they have a flat affect.
         When a child does disclose sexual abuse, it is not always a full disclosure of what
happened. The child may offer a vague statement to see how the listener reacts; if the
reaction is supportive, the child may feel comfortable to disclose more, often leading to
multiple versions of the abuse with different information.
         Raquel F.
         Raquel F, Doe’s mother, testified that defendant was not Doe’s biological father,
but he had been in her life for nine years and they had a father/daughter relationship.
Raquel F. and defendant also had a child together—Doe’s younger sister—and they
shared parenting responsibilities for both of the children. Both parents showered with the
younger daughter because she did not know how to do it herself, although defendant
would keep his underpants on when he bathed his daughter.
         After Doe’s allegations came out, Raquel F. asked Doe if something happened
between her and defendant and if she had seen defendant’s private parts. Doe answered
no to both questions. Raquel F. asked Doe why she made the statements to the school
officials, and Doe said that a friend had told her she was being abused and Doe related
that to her school counselor, but the counselor misunderstood and thought she was talking
about herself.
         Raquel F. described an incident involving Doe’s cell phone, when she caught Doe
talking on the phone at 2:00 a.m. so she took the phone away. On another occasion two
weeks before the police got involved in this case, she caught Doe having a conversation
that was inappropriate for a girl of her age, so she took the phone and broke it on the
floor.
         Raquel F. testified that she would sometimes go into the garage when defendant
was in there, and the two would have sex while defendant was wearing his poncho. This
happened two days before defendant was arrested.


                                              10
       Raquel F. acknowledged that her brother-in-law was deported after he molested
Raquel F.’s nieces, and the children were split up. She denied she ever told Doe to lie
about what happened with defendant.
       N.Z.
       N.Z., Raquel F.’s niece, spoke with Doe sometime after the preliminary hearing.
N.Z. asked Doe how the court proceeding had gone, and Doe said she was nervous and
scared and had cried. N.Z. never asked Doe what she said in her testimony, but when she
asked her, “Why did you do it?”, Doe replied that she was mad because her parents had
broken her cell phone. N.Z. then encouraged her to be strong and tell the truth.
                                     BACKGROUND
       The Charges Against Defendant
       Defendant was charged with aggravated sexual assault of a child by foreign object
penetration (Pen. Code, § 269, subd. (a)(5)) and commission of a lewd act upon the body
of a child under 14 years of age (id., § 288, subd. (a)). It was further alleged that
defendant had substantial sexual conduct with Doe, who was under the age of 14 (id.,
§ 1203.066, subd. (a)(8)), and that he committed the offenses by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury (id., § 1203.065,
subd. (a)).
       Defense Counsel’s Opening Statement
       Prior to the start of testimony, both sides gave opening statements. The following
passage in defense counsel’s opening statement is at the heart of defendant’s appeal:
       “Now, that’s not to say that in this case there wasn’t an awkward moment between
the minor and Mr. Luna. It is true that Mr. Luna always pays his bills—he’s a—you’re
gonna hear that he’s a self-employed man, landscaper business. After work he comes
home, takes off his clothes, puts on new clothes and dons a poncho and goes in the
garage, and he does his work on his computer as much as he can. And he wears the
poncho because sometimes it’s cold in the garage.




                                             11
        “And the minor helps him relatively every day because his English is not that
good, doesn’t read and write well. He understands, but when it comes to billing and
paying bills online, he needs her help. So she helps him out every day.
        “Now, there was a day in which she did—she was helping him pay the bills. Now,
after they were done paying the bills, from my recollection of the evidence, is that she
takes off, probably go uses the bathroom, get ready for bed. Mr. Luna, meanwhile, stays
in the garage. He’s playing around on the Internet. He himself says that he saw some
girls online, got aroused, and then soon thereafter the minor comes back. She comes
back real briefly and says, ‘Okay, I’m gonna go to bed,’ and starts walking out.
        “Mr. Luna then gets up, follows her, gives her a hug from behind, tells her good
night, she loves you, and he feels his penis touch her back area. Immediately not a
second later, he pushed her off, said, ‘I’m sorry.’ He was embarrassed, told her he was
sorry, that will never happen again.”
        No evidence was presented at trial that supported this statement.
        Closing Arguments
        In his closing argument, the prosecutor made this argument:
        “Opening statements. Opening statements are a chance to tell you what the case is
about. And based on the openings, I don’t think defense is gonna claim that he didn’t
touch her with his penis. Going back in your mind, what did they say happened in this
case?
        “All right. I’ve got the transcripts on opening. ‘The defendant did get aroused.’
These are their words. ‘He did get aroused, he did hug her from behind, he was aroused,
and his penis touched her back area. And he said this would never happen again.’
        “So I’m not sure exactly what the defense is gonna say now, but that was their
opening. These are the things that, the very least, they said happened. That’s their
chance to tell you about the case, and they’re saying, ‘Oh, at the very least, these things
happened. He was aroused. He did come in from behind. He did touch her with his
penis.’ Keep that in mind when you’re thinking about this case. They’re conceding that;
that at least that happened in that garage.”


                                               12
       In his closing argument, defense counsel stated:
       “Opening statements. Opening statements is not evidence. It’s—when you have a
case, we study it, but—and it’s what we think. And sometimes we have to anticipate
things. Sometimes we don’t know it all. The District Attorney doesn’t know what’s
going to be said.
       “So, you know, sometimes we have to adapt to what’s going on in the trial
because we really don’t know. So, you know, same as we had anticipation of what was
going to—what was going to be presented. A lot of that stuff didn’t work out. A lot of
that stuff wasn’t presented or some of the evidence didn’t come out the way me or the
District Attorney wanted it to. It’s just the name of this game, unfortunately, and you
guys have a tougher job of figuring out what’s the reality here.”
       Defendant’s Conviction and Sentence
       A jury found defendant guilty of both charges and the special allegations true. He
was sentenced to 15 years to life on count one, with a concurrent six-year term on count
two.
                                       DISCUSSION
       In People v. Mackey (2015) 233 Cal.App.4th 32, 119, we recently summarized the
well-established standard for a successful ineffective assistance of counsel claim: “A
defendant claiming ineffective assistance of counsel must demonstrate both deficient
performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687, 691–692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216–218.) On the
first prong he must show that ‘counsel’s representation fell below an objective standard
of reasonableness . . . [¶] . . . under prevailing professional norms.’ (Strickland, supra, at
p. 688.) And under the second, he must show that in the absence of the error it is
reasonably probable that a result more favorable to him would have obtained. A
reasonable probability is ‘a probability sufficient to undermine confidence in the
outcome.’ (Id. at p. 694.)” As in Mackey, defendant here demonstrates neither deficient
conduct nor prejudice.



                                              13
       Turning first to the question of whether defendant’s counsel’s performance was
deficient, we consider whether the record shows that counsel’s act or omission “resulted
from an informed tactical choice within the range of reasonable competence . . . .”
(People v. Pope (1979) 23 Cal.3d 412, 425.) If so, the conviction must be affirmed.
(Ibid.) But if no plausible tactical explanation can be conceived which would justify the
challenged act or omission, then deficient conduct by counsel is manifest. (People v.
Robertson (1982) 33 Cal.3d 21, 42; People v. Moreno (1987) 188 Cal.App.3d 1179,
1181; People v. Jackson (1986) 187 Cal.App.3d 499, 506; People v. Guizar (1986)
180 Cal.App.3d 487, 492, fn. 3.)
       In the context of an opening statement, “Making promises about the defense
evidence in opening statement and then failing to deliver does not constitute ineffective
assistance per se.” (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) Courts have,
however, found constitutionally ineffective assistance of counsel where defense counsel
failed to present exculpatory evidence that was promised in an opening statement and no
intervening circumstance justified the failure to deliver on the promise. Defendant cites a
string of such cases: Williams v. Woodford (E.D. Cal. 2012) 859 F.Supp.2d 1154, 1171–
1173; U.S. ex rel. Hampton v. Leibach (7th Cir. 2003) 347 F.3d 219, 259 (Hampton);
Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 17; People v. Corona (1978)
80 Cal.App.3d 684; Madrigal v. Yates (C.D. Cal. 2009) 662 F.Supp.2d 1162, 1184;
Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, 29; Harris v. Reed (7th Cir. 1990) 894
F.2d 871, 879. He contends these cases, in particular Hampton, govern here. Not so.
       In Hampton, supra, 347 F.3d 219, defendant was charged with sexual assault,
rape, and robbery, stemming from an assault on two women at a concert by a large group
of gang members. Defendant was tied to the crimes solely by conflicting eyewitness
testimony. During opening statement, defendant’s counsel promised the jury, “Mr.
Hampton will testify and tell you that he was at the concert. Mr. Hampton will tell you
that he saw what happened but was not involved with it.” (Id. at p. 257.) The attorney
later decided not to call defendant to the stand because he was worried that the fact



                                            14
defendant was at the concert might make him, in the jury’s eyes, guilty by association.
(Id. at p. 258.)
       In agreeing with defendant’s claim of ineffective assistance of counsel, the court
of appeals stated: “We may assume, without deciding, that it was reasonable for
[counsel] Rodgon to advise Hampton not to testify and not to present testimony from
other witnesses about his lack of gang ties; such decisions are often motivated by
strategic considerations that command deference from the judiciary. [Citations.] But
Rodgon promised the jury that it would hear from Hampton and that it would also hear
evidence that he had no gang involvement, and he reneged on his promises without
explaining to the jury why he did so. Turnabouts of this sort may be justified when
‘unexpected developments . . . warrant . . . changes in previously announced trial
strategies.’ [Citations.] However, when the failure to present the promised testimony
cannot be chalked up to unforeseeable events, the attorney’s broken promise may be
unreasonable, for ‘little is more damaging than to fail to produce important evidence that
had been promised in an opening.’ [Citations.] The damage can be particularly acute
when it is the defendant himself whose testimony fails to materialize: [¶] [‘]When a jury
is promised that it will hear the defendant’s story from the defendant’s own lips, and the
defendant then reneges, common sense suggests that the course of trial may be
profoundly altered. A broken promise of this magnitude taints both the lawyer who
vouchsafed it and the client on whose behalf it was made.[’] [Citation.]” (Hampton,
supra, 347 F.3d at p. 257.)
       The Hampton court then went on to find that any potential disadvantages from
defendant’s testimony were ones “that would have been obvious from the outset of the
case” and thus did not justify counsel’s decision to promise the jury that defendant would
testify and then renege on that promise. (Hampton, supra, 347 F.3d at p. 258.)
       Here, unlike in Hampton, there was an unforeseeable event that justified a change
in trial strategy: Doe’s retraction. Doe told a school counselor, the police, and CIC
interviewer Mori that defendant had sexually assaulted her. She testified at the
preliminary hearing that he had not touched her inappropriately, only to return to the


                                            15
courtroom a little while later and tell the judge that she had lied. Defense counsel thus
had every reason to believe Doe would testify at trial about the incident in the garage, and
it was reasonable to inform the jury it would hear evidence of an innocent explanation for
the physical contact Doe would presumably describe. The promised evidence was
apparently consistent with what defendant, after initially proclaiming his innocence, told
the police—“that his ‘penis’ did come into contact with Jane Doe’s ‘cheeks,’ but claimed
he did not penetrate her.”2 When Doe took the stand and denied that any contact, let
alone any sexual assault, occurred, defendant’s anticipated testimony no longer made
sense, and in fact would have been damaging to the defense. In light of this plausible
tactical explanation for counsel’s decision, we cannot conclude that his conduct was
deficient.
       Even if we agreed with defendant that his counsel’s opening statement fell below
an objective standard of reasonableness, defendant would still not prevail on his
ineffective assistance of counsel claim because he cannot demonstrate prejudice, i.e., a
reasonable probability of a more favorable result but for the deficient conduct.
(Strickland, supra, 466 U.S. at pp. 687–691.) He contends that, “Given the wildly
divergent statements and testimony from [Doe] during the course of the investigation and
trial, the evidence of [defendant’s] guilt was far from overwhelming.” We read the
record very differently: there was, in fact, overwhelming evidence of defendant’s guilt.
       As detailed above, Doe told three different adults that defendant had sexually
assaulted her, describing the assault in significant detail. At the preliminary hearing, she
denied any inappropriate touching, but then told the judge she had not been truthful,
agreeing that she had lied because she was worried about her family. And her trial
testimony—for example, her claim that she had actually reported that a friend had been
molested and her claims that she did not remember telling the police or Mori any details
about the incident—was unpersuasive.




       2
           This is per the probation officer’s report and recommendation.

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         Further, the only explanation Doe ever offered as to why she supposedly lied
about the sexual assault was her claim that she was mad at defendant because she
believed he broke her phone. But this was contradicted by her own trial testimony,
corroborated by her mother, that her mother broke the phone in front of her. There was
thus no credible reason why Doe would have fabricated the sexual assault story.
         Defendant would have us focus on what he describes as Doe’s “wildly divergent
statements,” but there were reasonable explanations for any inconsistencies in Doe’s
accounts, as well as her retraction at trial. Child sexual abuse expert Urquiza testified
about child sexual abuse accommodation syndrome, explaining that children often retract
reports of abuse because of familial pressure. Consistent with that, Doe told Mori that
her mother and defendant’s brother were telling her to lie about what happened. There
was also evidence that Doe’s cousin’s report of sexual abuse ultimately led to her father’s
deportation and the separation of the family. When asked by the preliminary hearing
judge if she had lied because she was worried about her family, Doe nodded her head.
Likewise, Doe told Mori that she did not want to live without her mother and siblings,
despite what had happened to her.
         Urquiza also testified that a child victim of sexual abuse does not typically make a
full disclosure at the outset, instead offering a vague statement, assessing the listener’s
reaction, and then adding details if the listener is supportive. This provided a reasonable
explanation for why Doe’s account evolved each time she described the assault to an
adult.
         In light of this evidence, defendant cannot demonstrate there was a reasonable
probability of a more favorable result had defense counsel not suggested in his opening
statement that it would hear evidence of an innocent explanation for the “awkward
moment” between defendant and Doe.
                                       DISPOSITION
         The judgment of conviction is affirmed.




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                                 _________________________
                                 Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.




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