Filed 4/28/15 P. v. Myers CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059430

v.                                                                       (Super.Ct.No. RIF1201472)

RAYMOND DEAN MYERS,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.

Affirmed.

         Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry J.T. Carlton and Warren J. Williams, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       A jury convicted defendant and appellant Raymond Dean Myers of two counts of

engaging in sexual intercourse with a minor 10 years of age or younger (Pen. Code,1

§ 288.7, subd. (a), counts 1 & 2) and two counts of engaging in oral copulation with a

minor 10 years of age or younger (§ 288.7, subd. (b), counts 3 & 4). The trial court

sentenced him to a total term of 40 years to life in state prison. On appeal, defendant

argues that the trial court erred because it did not provide a unanimity instruction and

because it did not provide an instruction on the lesser included offense of attempted

sexual intercourse with a minor. He also argues that his trial counsel provided ineffective

assistance. For the reasons discussed post, we affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       1. The prosecution’s case

       The victim was eight years old at the time of trial and was seven years old when

the events she testified to occurred. Defendant was a friend of the victim’s parents and

babysat her and her two siblings in his home in Corona between June 2011 and January

2012. The victim testified that when defendant babysat her “sometimes he did bad things

and sometimes he did good things.” When asked to describe the bad things defendant did

to her, the victim recounted multiple occasions of molestation.




       1   Unless stated otherwise, all further statutory references are to the Penal Code.




                                               2
        She described a time when she had been sleeping in defendant’s bed and was

awakened by a feeling of pain. Her pants had been removed and defendant was licking

her “coliflor,” which is a word she used for her “privacy place,” or her vagina. When

asked “[h]ow many different times” defendant had licked her vagina, the victim

responded, “I can’t remember how much times, but sometimes a lot.” She said that

“[e]very day I went he licked me[,]” and, when asked if defendant had licked her on more

than two separate occasions, she said “Yes.” She explained that it happened in

defendant’s room, when her brother was in another room and her parents were not

around. She testified that it “hurt very much” when defendant licked her, and that one

time he had told her not to tell anyone about what he had done because he would go to

jail.

        She also testified about an occasion when defendant put his “tail” (the word she

used for “the part where he goes to the restroom,” or his penis) in her vagina. She was

lying in defendant’s bed on her back with her legs apart and he was kneeling between her

legs. She said that defendant took his tail and “put it in my coliflor.” When asked to

describe exactly what defendant had done with his tail, she explained that he had been

touching it (and she mimicked this by collapsing her hands around what would be his

penis) and “kind of put it like in the center.” She said this was “a lot painful,” but that

defendant had told her it was “good for [her].” He had also told her not to tell anyone

about it. She could not remember how many different times defendant put his tail in her



                                              3
coliflor, but she thought it was “maybe twice.” When asked later if she thought it had

happened more than once, she said “I think like more than once.”

       The victim’s mother testified that defendant looked after the victim and her

siblings while she was at the hospital with the victim’s stepfather, who was receiving

cancer treatments at the time. Before June 2011, the victim was a happy child, who liked

to sing and dance, but by January 2012, “[h]er self-esteem went down,” “she wanted to

be alone,” and “she did not want to talk much.”

       About two weeks after the last time the defendant babysat the victim, the victim’s

mother asked her what was wrong. The victim pointed to her vagina and said defendant

had been licking her. She also said that defendant had put his penis “right there” and

again motioned to her vagina. The victim’s parents immediately filed a report with the

police, and the investigating officer scheduled an appointment with a forensic interviewer

with child protective services.

       The prosecution played the video recording of this interview for the jury. During

the interview, the victim said that defendant licked her coliflor, and explained that

“sometimes when he touches it, it tickles and then—and then it hurts.” She said the

licking happened “more times” than once. The first time, she went to sleep on

defendant’s bed and when she woke up, her pants were down and he was licking her.

When asked about another time defendant had licked her, she said, “he didn’t get

anymore.” When the interviewer reminded her that she had said the licking happened



                                             4
more than once, the victim replied, “Oh, it was because he put the tail—I mean, he licked

another time. He put the tail on me [¶] . . . [¶] on my coliflor [¶] . . . [¶] and that

happened one time.” The interviewer asked her again whether defendant had licked her

one time or more than one time and she replied, “One time.”

       When asked about what defendant had done to her with his tail, the victim said

that he put it on her coliflor. The interviewer asked if he put his tail “on” or “in” her

coliflor, and the victim replied, “In.” She had been lying down on his bed and he was

sitting in front of her “holding the—the tail and putting it like in there to be still.” She

said defendant put his tail in her coliflor “more than one time.” It hurt when defendant

did this, but he told her it was good for her. When asked to describe one of the other

incidents, she said “He did the same thing.” The interviewer then asked “how much”

defendant put his tail in her coliflor and what made him stop. The victim replied, “he did

more than widen . . . and then he stopped.” She described defendant’s tail as “squishy,”

“thick, ” and “hard . . . . [l]ike a bone.”2

       The prosecution also played a recording of a phone conversation in which the

victim’s stepfather asked defendant whether he had molested his daughter.3 Defendant


       2 During the interview and at trial, the victim recalled an incident where
defendant made her grab his penis and move her hand up and down, but this incident did
not form the basis of any of the four counts against defendant.

       3   This was a pretext call, organized and recorded by the investigating officer.



                                                5
denied molesting the victim, but said that he recalled a time he had been dreaming about

a woman named Cindy, and the victim, who was sleeping in his bed, woke him up and

said “get off me.” He acknowledged that he “might have touched” the victim, thinking

that it was Cindy. When asked if it was possible that he also had licked her he said, “that

night I could have.” Defendant told the stepfather that he knew how he felt because one

of his daughters had been molested by his ex-brother-in-law.

       The prosecution’s forensic pediatrician, Dr. Vivanco, testified that the victim’s

genital exam was normal, and that this was consistent with the history provided by the

forensic interviewer. She had not expected there to be any findings of physical trauma

because genital tissue heals quickly and completely after 48 to 72 hours and because at

least two weeks had passed since the last time defendant babysat the victim. A child can

have a normal exam even though there was a history of penetration and the fact that the

victim’s hymen was unbroken did not mean she had not been penetrated. “Vulvar coitus”

is a type of penetration that occurs when the penis moves past the labia majora, but not

past the hymen. A child can perceive penetration and pain from vulvar coitus, and yet

her hymen would still be intact. Dr. Vivanco concluded that nothing about the exam

caused her to believe that the victim was not sexually abused.




                                             6
       2. The defense’s case

       Defendant’s two daughters testified that he had never molested them and that they

never saw him exhibit any strange behavior around children. Defendant’s friend, his ex-

girlfriend, and his landlord testified that he was good with children.

       Defendant’s friend also testified that he thought the victim’s stepfather was “kind

of a jerk” with his children to the point that they were a “little bit scared of him.” On

cross-examination, he admitted he had signed a witness statement prepared by defense

counsel which included the statement that, in his experience, the stepfather was always

“very respectful” to the victim and her siblings. He attempted to deny that he had ever

made such a statement, but ultimately agreed that it was likely that the statement was

accurate.4

       Defendant testified that the victim’s family was living at his house because they

were homeless. He said that the victim’s parents slept on an air mattress in his living

room and that the stepfather would watch “his Mexican channels on my big . . . screen

TV.” Defendant believed the stepfather was jealous of his relationship with the victim’s

mother and feared that defendant would take his family away. Defendant also believed

that this jealousy and fear led the stepfather to accuse him of molesting his daughter and



       4 The parties later stipulated that the witness had in fact previously stated that the
stepfather was always respectful to his children, and that his trial testimony was the first
time he stated otherwise.



                                              7
to coach her to testify against him. He testified that the victim could “play it off very

well,” adding, “This is a very smart child.”

       Defendant explained that he cannot obtain an erection due to paralysis, and denied

having committed the alleged offenses. He admitted that he had rolled on top of the

victim once during a dream, but maintained that he had never pulled her pants down and

licked her vagina. When asked on cross-examination how the victim would have been

able to come up with the details of her testimony about what he had done to her with his

tail, defendant stated, “She’s got a brother that showers or bathes with her every day.

And the mother has showed her . . . what a male’s penis is supposed to look like.” He did

not know where the victim would have learned to describe and demonstrate the act of

him kneeling down, with her between his legs, and putting his penis inside her vagina.

He recalled telling the investigating officer, “there’s no sense of painting a fence with a

wet noodle,” by which he meant, “I cannot obtain an erection, so why would I have her

grab me?”

       Defendant was also asked about his reference to his daughter’s molestation during

the pretext call. He testified that his ex-brother-in-law had molested his daughter. He

was not sure of the extent of the molestation, but he thought that she had been

inappropriately touched and that there “[m]ay have been penetration.” He also testified

that he could not remember his ex-brother-in-law’s name, and that he never reported the




                                               8
molestation to the police. When called on rebuttal, his daughter testified that she had

never been molested.

                                         ANALYSIS

       1. The unanimity instruction

              a. Background facts

       Defendant was charged with two separate counts of sexual intercourse, or

penetration, (counts 1 & 2) and two separate counts of oral copulation (counts 3 & 4). At

trial, the victim described one specific act of penetration and one specific act of oral

copulation and testified that both the penetration and the oral copulation had happened

more than one time. During closing statements, the prosecutor argued that the evidence

proved beyond a reasonable doubt that defendant was guilty of all four counts because

the victim’s testimony demonstrated that he orally copulated her two times and

penetrated her two times.

       The jury received four separate verdict forms for the two counts of penetration

(counts 1 & 2) and the two counts of oral copulation (counts 3 & 4), and it also received

the following instructions from the court: “Your verdict must be unanimous. [¶] . . . [¶]

You will be given verdict forms. [¶] . . . [¶] If you are unable to reach a unanimous

decision—If you are able to reach a unanimous decision on only one or only some of the

charges, fill in those verdict forms only and notify the bailiff.”




                                              9
       Defendant now contends that the trial court’s failure to give the jury the standard

unanimity instruction, or at the very least, the modified unanimity instruction applicable

to generic molestation testimony, constitutes reversible error. Respondent concedes that

the court erred by not giving a modified unanimity instruction, but argues that the error

was harmless. We conclude that the error of failing to provide a modified unanimity

instruction was harmless.

              b. A modified unanimity instruction was required

       We review a claim of instructional error de novo. (People v. Manriquez (2005) 37

Cal.4th 547, 581.) A criminal defendant is constitutionally entitled to a unanimous

verdict “in which all 12 jurors concur, beyond a reasonable doubt, as to each count

charged.” (People v. Jones (1990) 51 Cal.3d 294, 305 (Jones).) A unanimity instruction

is one in which the court explains to the jury “ ‘the need for unanimous agreement on the

distinct criminal act or event supporting each charge.’ ”5 (People v. Whitham (1995) 38

Cal.App.4th 1282, 1295.) In other words, when a defendant is charged with a criminal



       5 The standard unanimity instruction that defendant argues should have been
given is CALCRIM No. 3500 (entitled, Unanimity), which provides:
       “The defendant is charged with <insert description of alleged offense> [in Count
____] [sometime during the period of ____ to ____].
       “The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one of these acts
and you all agree on which act (he/she) committed.”




                                            10
offense but evidence of more than one act constituting the charged offense is introduced,

the jury must be instructed that it must unanimously agree upon the particular act

committed in order to convict. (Ibid.; see People v. Beardslee (1991) 53 Cal.3d 68, 92

[unanimity is required when there is evidence of “acts that could have been charged as

separate offenses”].) A trial court has a sua sponte duty to give a unanimity instruction

“ ‘[w]hen the evidence tends to show a larger number of distinct violations of the charged

crime than have been charged and the prosecution has not elected a specific criminal act

or event upon which it will rely for each allegation.’ ” (Whitham, supra, 38 Cal.App.4th

at p. 1295.)

       In Jones, the California Supreme Court recognized that child molestation cases

pose a unique set of issues with regard to unanimity of verdict. (Jones, supra, 51 Cal.3d

at pp. 316-322.) The court explained that oftentimes the child victim is only able to

provide generic testimony that describes specific, though indistinguishable, acts of

molestation. (Id. at p. 321.) It stated that, “[i]n such cases, although the jury may not be

able to readily distinguish between the various acts, it is certainly capable of unanimously

agreeing that they took place in the number and manner described.” (Ibid.) Thus, if the

child’s and the defendant’s testimony is such that “there is no reasonable likelihood of

juror disagreement as to particular acts, and the only question is whether or not the

defendant in fact committed all of them,” the court held that the jury should be given a

“modified unanimity instruction.” (Id. at p. 322, italics added.) A modified unanimity



                                             11
instruction, “in addition to allowing a conviction if the jurors unanimously agree on

specific acts, also allows a conviction if the jury unanimously agrees the defendant

committed all the acts described by the victim.”6 (Ibid.)

       Here, because the victim gave generic testimony describing repeated acts of

penetration and oral copulation and, because defendant offered the same defense to all of

these acts, there was no reasonable likelihood of jurors disagreeing about particular acts

and instead the only question was whether he committed all of them.

       Thus, the sole issue for the jury was the credibility of the victim’s testimony

versus the defendant’s—it would either believe the victim and find that defendant had

committed all of the acts she had described (thus convicting him of two counts of sexual

intercourse and two counts of oral copulation) or believe that defendant had not



       6  The modified unanimity instruction that defendant argues should have been
given to the jury is CALCRIM No. 3501 (entitled, Unanimity: When Generic Testimony
of Offense Presented), which provides: “The defendant is charged with _________
<insert description[s] of alleged offense[s]> [in Count[s] _____] sometime during the
period of _____ to _____.”
        “The People have presented evidence of more than one act to prove that the
defendant committed (this/these) offense[s]. You must not find the defendant guilty
unless:
        “1. You all agree that the People have proved that the defendant committed at least
one of these acts and you all agree on which act (he/she) committed [for each offense];
        “OR
        “2. You all agree that the People have proved that the defendant committed all the
acts alleged to have occurred during this time period [and have proved that the defendant
committed at least the number of offenses charged].”




                                             12
committed any of the acts the victim described. Accordingly, the trial court should have

provided the jury with the modified unanimity instruction described in Jones to ensure

that the jury unanimously agreed appellant committed all of the acts the victim described.

              c. The error was harmless beyond a reasonable doubt

       The trial court’s error was harmless under either Chapman v. California (1967)

386 U.S. 18, 24 (Chapman) or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).7

California courts have held that the failure to give a unanimity instruction is harmless

“[w]here the record provides no rational basis, by way of argument or evidence, for the

jury to distinguish between the various acts, and the jury must have believed beyond a

reasonable doubt that defendant committed all acts if he committed any.” (People v.

Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson); see People v. Hernandez (2013)

217 Cal.App.4th 559, 577, citing People v. Diedrich (1982) 31 Cal.3d 263, 283 [failure to

give unanimity instruction is harmless “where the defendant offered the same defense to

all criminal acts and ‘the jury’s verdict implies that it did not believe the only defense

offered’ ”]; People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [failure to give unanimity

instruction was harmless where jury rejected defendant’s single defense to all instances of

firearm possession].)



       7  There is currently a split in authority regarding which error standard to use for
the failure to give a unanimity instruction. (People v. Matute (2002) 103 Cal.App.4th
1437, 1448–1449.)



                                             13
       Here, the combination of the trial testimony, closing arguments, jury instructions,

and verdict forms ensured that the jury must have believed beyond a reasonable doubt

that defendant committed all of the acts of molestation that he was accused of, if he

committed any of them. First, as explained, the jury had no way to distinguish between

the various acts of molestation because the victim testified generically to multiple acts of

penetration and oral copulation and the defendant offered the same defense to all of the

acts. Second, counsels’ arguments and the court’s instructions were clear that the jury

had to find unanimously that defendant committed the four acts charged. During closing

statements, the prosecutor argued that the jury should find defendant guilty of “the two

times that it’s charged that he put his penis inside of her vagina” and for “the two times

charged that he licked her vagina”; defense counsel argued that defendant did not commit

these acts. The court instructed the jury that if it was “able to reach a unanimous decision

on only one or only some of the charges,” it was to “fill in those verdict forms only and

notify the bailiff.”

       Because defendant claimed that the entirety of the victim’s testimony about the

acts of molestation was fabricated, the jury either had to believe the victim that she was

penetrated more than once and orally copulated more than once, or it had to disbelieve

her; there was no third option (e.g., that defendant penetrated her once but did not commit

any of the other three alleged acts). The fact that the jury returned all four verdict forms

with a finding of guilty means that: (1) it unanimously found that defendant committed



                                             14
the specific act of penetration and specific act of oral copulation that the victim recounted

at trial (which, for ease of reference we will call counts 1 & 3) and it unanimously found

that defendant had committed at least one more act of penetration and oral copulation

(counts 2 & 4). In other words, the jury was convinced that defendant “committed all

acts if he committed any.” (Thompson, supra, 36 Cal.App.4th at p. 853.)

       Defendant argues that the trial court’s failure to provide a unanimity instruction

was reversible error because “[a]lthough [his] defense to all the counts was essentially the

same, a reasonable jury could still have rejected [that] defense, yet be unconvinced

beyond a reasonable doubt that the evidence established more than one of each offense

had been committed.” Defendant misapprehends the nature of the testimony the jury

heard at trial. Because the victim gave only generic testimony regarding the additional

instances of sexual intercourse and oral copulation that form the basis for counts 2 and 4,

there is no danger that, for example, half of the jurors would find defendant guilty of one

distinct act as the basis for count 2 and the other half would find him guilty of a

completely different distinct act. In the case of count 2, the only option for the jury was

to believe or disbelieve that defendant had sexual intercourse with the victim one more

time in addition to the specific instance she described. The same logic applies to count 4

and the charge of oral copulation. By returning a guilty verdict on each count, the jury

demonstrated that it did not believe defendant’s claim that the victim fabricated the




                                             15
testimony; rather, it believed that defendant had engaged in each of the two types of

molestation charged on two separate occasions.

       Nothing in the record suggests that had the jury been instructed on unanimity, it

would have acquitted defendant. We thus conclude that the error was harmless under

either Watson or Chapman.

       2. The instruction on attempted sexual intercourse with a child

       Defendant contends that the trial court erred by failing to instruct the jury on

attempted sexual intercourse with a child as a lesser included offense of the completed

crime set forth in section 288.7, subdivision (a). We conclude that the trial court did not

err and, even if it did, any error was harmless.

              a. The trial court did not err

       We independently review claims that a trial court erroneously failed to instruct on

a lesser included offense, and in doing so consider the evidence in the light most

favorable to the defendant. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Turk

(2008) 164 Cal.App.4th 1361, 1367-1368, fn. 5.)

       Attempting sexual intercourse with a child is a lesser included offense of sexual

intercourse with a child. (See, e.g., In re Sylvester C. (2006) 137 Cal.App.4th 601, 609

[“California appellate courts have repeatedly accepted the principle that attempt is a

lesser included offense of any completed crime”]; People v. Bailey (2012) 54 Cal.4th

740, 749 [attempted rape is a lesser included offense of rape].) A trial court has an



                                               16
independent duty to instruct the jury on lesser included offenses when there is

“substantial evidence raising a question as to whether all of the elements of the charged

offense are present.” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) In this context,

substantial evidence is “evidence that a reasonable jury could find persuasive.” (People

v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)

       To justify an attempted sexual intercourse instruction, there must have been

substantial evidence that defendant intended to penetrate the victim’s vagina with his

penis but was “unsuccessful in the attempt.” (People v. Holt (1997) 15 Cal.4th 619, 674.)

However, where “there is no evidence that the offense was less than that charged,” there

is no duty to instruct on the lesser included offense. (People v. Breverman (1998) 19

Cal.4th 142, 154.)

       Here, when viewed in the light most favorable to defendant, there is insufficient

evidence in the record to support a reasonable finding that defendant attempted to have

sexual intercourse with the victim but was unsuccessful. On multiple occasions at trial,

the victim unequivocally testified that defendant put his tail “in” her coliflor.

       Defendant argues that there is substantial evidence to support an attempt

conviction because during the forensic interview the victim initially said that defendant

put his tail “on” her coliflor. Defendant ignores the fact that the victim immediately

corrected that statement and explained that defendant had put his tail “in” her coliflor,




                                              17
which the jury could reasonably infer meant that her initial use of the word “on” was an

inadvertent mistake.

       Moreover, even more significant than the victim’s retraction of the word “on,” is

her description of defendant’s actions to the forensic interviewer. She explained that

defendant was in front of her and “he was holding the—the tail and putting it like in there

to be still.” She said that this “hurt” and that she felt like she was going to “cry.” When

asked how far defendant had inserted his tail into her coliflor, she responded “maybe like

sorta” and said “he did more than widen and . . . then he stopped.” A jury could

reasonably infer from this description that she meant that defendant caused her labia

majora to widen when he inserted his penis into her vagina.

       The victim’s explanation of this same incident at trial further supports the

conclusion that her initial use of the word “on” was an inadvertent mistake. For example,

she testified that defendant put his tail in her coliflor “like in the center,” and, using hand

movements to illustrate, she mimicked collapsing her hands around a penis and inserting

it into a vagina. In light of the substantial amount of testimony in support of penetration,

we conclude that the victim’s initial use of the word “on” is too thin a basis to support an

instruction on attempt.

       Lastly, we reject defendant’s claim that the lack of physical findings of trauma in

victim’s vaginal exam “corroborated an attempted sexual penetration” because in fact this

evidence cuts both ways—i.e., it does not support a finding of the lesser crime while at



                                              18
the same time exculpating defendant of the greater. (See Breverman, supra, 19 Cal.4th at

p. 162 [substantial evidence to support an instruction on a lesser included offense is

“ ‘ “evidence from which a jury composed of reasonable [persons] could . . .

conclude[]” ’ that the lesser offense, but not the greater, was committed”], brackets in

original.) Dr. Vivanco testified that there can still be penetration without a rupturing of

the hymen and that, if there had been any other injuries to the vagina, they would have

healed long before she conducted the exam. Thus, the victim’s vaginal exam was a

neutral piece of evidence—it did not tend to demonstrate penetration, but neither did it

tend to demonstrate attempted penetration.

              a. Any error was harmless

       Even if the victim’s initial statement that defendant put his tail on her coliflor did

constitute substantial evidence of attempted sexual intercourse with a child, any error in

not instructing the jury on attempt is reversible only if it was prejudicial to defendant

under the test set forth in Watson. (Breverman, supra, 19 Cal.4th at p. 178.)8 To prevail

under that test, a defendant must demonstrate “a reasonable probability that the error

       8  We reject defendant’s argument that this type of instructional error must be
reviewed under the standard set forth in Chapman, supra, 386 U.S. at p. 24 because it
deprived him of his due process right “to have a jury determine all factual issues relating
to a charged offense.” Defendant cites to authority that fails to support his position, and
he ignores the California Supreme Court’s holding that “in a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and
theories thereof which are supported by the evidence must be reviewed for prejudice
exclusively under Watson.” (Breverman, supra, 19 Cal.4th at p. 178.)



                                             19
affected the outcome” of the case. (Id. at 165.) Reasonable probability under the Watson

test means “a reasonable chance,” which is “more than an abstract possibility.” (People

v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918.) In applying the Watson test, we

consider “ ‘whether the evidence supporting the existing judgment is so relatively strong,

and the evidence supporting a different outcome is so comparatively weak, that there is

no reasonable probability the error of which the defendant complains affected the

result.’ ” (People v. Rogers (2006) 39 Cal.4th 826, 870, original italics.)

       Here, the jury was instructed that sexual intercourse means “any penetration, no

matter how slight, of the vagina or genitalia by the penis,” and, for the reasons just

explained, the scant evidence of attempted penetration is weak compared to the

substantial evidence of penetration. (See, e.g., People v. Banks (2014) 59 Cal.4th 1113,

1161 (Banks) [failure not to instruct on lesser included offense was harmless where there

was “some evidence” that the defendant committed the lesser offense, but “the far more

plausible inference” was that he committed the greater offense].)

       Defendant argues that there were ambiguities and inconsistencies in the victim’s

testimony regarding penetration that were “substantial enough” to render the error

prejudicial. We take the opposite view of the victim’s testimony. With the exception of

her initial use of the word “on,” all of her trial testimony and statements during the

forensic interview support a finding that defendant penetrated her genitalia. For example,

the jury saw the recording of the interview where, after saying “on,” the victim corrected



                                             20
that she meant “in.” The jury also saw her mimic defendant’s act of putting his penis into

her vagina “in the center,” “in there to be still,” where it “did more than widen.” The

victim repeatedly described the times that defendant put his tail in her coliflor as painful,

and Dr. Vivanco testified that a child would perceive pain from penetration past her labia

majora.

       The ambiguity in the victim’s testimony was not “substantial.” Rather, any

ambiguity was the linguistic result of an eight-year-old child trying to communicate

sexual situations she experienced more than a year earlier, situations for which she does

not yet have an articulate vocabulary. Despite her use of idiosyncratic terms for genitalia

and sexual activities and her inability to recall, e.g., dates or the specific number of times

the sexual abuse occurred, she is quite clear and consistent on her recollection of what

happened to her—defendant penetrated her vagina with his penis.

       We conclude that it is not reasonably probable that, had the jury been instructed on

attempt, it would have disregarded the substantial amount of evidence in support of

penetration and instead convicted defendant of attempt based on the victim’s initial use of

the word “on” or alleged ambiguities in her testimony regarding penetration.

       3. Ineffective assistance of counsel

       Defendant contends that he received ineffective assistance of counsel throughout

his trial because his attorney was unprepared, offensive, and lacked a basic understanding

of evidentiary rules and trial procedure. In his opening brief, defendant recounts virtually



                                              21
the entirety of counsel’s performance at and immediately leading up to trial, and points to

numerous examples of alleged deficiencies. We conclude, however, that none of these

alleged errors constitutes ineffective assistance of counsel.

       To succeed on an ineffective assistance of counsel claim, defendant must

demonstrate that counsel’s performance was deficient (i.e., it fell below an objective

standard of reasonableness) and that the deficiency was prejudicial. (Strickland v.

Washington (1984) 466 U.S. 668, 687-695 (Strickland); People v. Bolin (1998) 18

Cal.4th 297, 333.)

       Where, as here, the claim is based on alleged errors by counsel and the record on

appeal does not contain an explanation for the errors, we must reject the claim unless

there could be “no satisfactory explanation” for counsel’s conduct. (People v. Mendoza

Tello (1997) 15 Cal.4th 264, 266-267 [reversing a holding of ineffective assistance of

counsel where record did not show why counsel failed to move to suppress evidence

obtained during a warrantless search because counsel was “perhaps” aware that the

officer had a justification for the search].) Under these circumstances, the defendant

must overcome a “strong presumption” that counsel’s conduct was sound trial strategy or

otherwise within the wide range of reasonable professional assistance. (Strickland,

supra, 466 U.S. at pp. 689-690; see People v. Leonard (2014) 228 Cal.App.4th 465, 484.)

       We need not address both prongs of the Strickland test if defendant makes an

insufficient showing on one. (Strickland, supra, 466 U.S. at p. 697 [“In particular, a



                                             22
court need not determine whether counsel’s performance was deficient before examining

the prejudice suffered by defendant as a result of the alleged deficiencies”]; People v.

Kipp (1998) 18 Cal.4th 349, 366.) To establish prejudice, the defendant must show that

there is a “reasonable probability” that, but for counsel’s errors, the result of the

proceeding would have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th

598, 666.) The defendant “must carry his burden of proving prejudice as a ‘demonstrable

reality,’ not simply speculation as to the effect of the errors.” (People v. Williams (1988)

44 Cal.3d 883, 937.) We now address the numerous alleged errors made by defense

counsel in turn.

              a. Counsel’s opening statement

       During opening statements, defense counsel argued that the charges against

defendant were “trumped up by the little girl’s disruptive family” because “[t]he

stepfather’s very jealous of [defendant].” He argued that “the little girl has been very

well coached, by maybe the . . . district attorney and others, to accuse [defendant].” He

also argued that defendant “probably wasn’t able to do this thing that he’s supposedly

accused of” because “at the time of this incident, he was paralyzed below the waist.”

       Defendant now contends that counsel’s opening statement was deficient because:

(1) the argument that the victim’s testimony was fabricated was unsupported by the

evidence; (2) counsel’s allegation that the district attorney coached the victim “provided

the evidentiary basis, as prior consistent statements, to allow the introduction of the



                                              23
[forensic interview] video”; and (3) paralysis below the waist was an invalid defense

because, “according to the medical testimony here . . . a flaccid penis could penetrate

female genitalia within the meaning of [section 288.7, subdivision (a)].” We conclude

that these statements do not constitute deficient performance.

       Regarding counsel’s fabrication argument, defendant himself testified that he

believed her story was fabricated by her stepfather as a result of his jealousy, and we

cannot conclude on the record before us that counsel did not have a strategic motive for

attacking the victim’s credibility in this manner. Regarding counsel’s coaching

allegation, contrary to defendant’s assertion, it was not the evidentiary basis for

introducing the video of the forensic interview. The video was independently admissible




                                             24
under Evidence Code section 1360,9 and the prosecutor had announced his intention to

introduce it before either side had given opening statements.10

       Finally, we reject the argument that defendant’s paralysis is not a valid defense to

a claim of sexual intercourse with a child. Evidence of paralysis below the waist would

tend to contradict the victim’s description of the sexual intercourse, namely, that

defendant was kneeling on top of her as she lay on the bed. We therefore cannot

conclude that there was no tactical reason for advancing this theory at trial.

              b. Counsel’s objection to admission of the pretext call

       Outside the presence of the jury, defense counsel objected to admission of the

pretext call on the ground that the recording was made without defendant’s knowledge.



       9   Evidence Code section 1360, subdivision (a), states: “In a criminal prosecution
where the victim is a minor, a statement made by the victim when under the age of 12
describing any act of child abuse or neglect performed with or on the child by another . . .
is not made inadmissible by the hearsay rule if all of the following apply:
        “(1) The statement is not otherwise admissible by statute or court rule.
        “(2) The court finds, in a hearing conducted outside the presence of the jury, that
the time, content, and circumstances of the statement provide sufficient indicia of
reliability.
        “(3) The child [testifies at the proceedings] . . . .”
        In this case, the trial court made the requisite findings before admitting the video
recording, and stated, “Evidence Code 1360 provides for situations where the child
testifies and her testimony is consistent. In many respects it is consistent. In some
respects, she can’t remember.” The court asked the prosecutor if this was his purpose in
requesting to play the recording, and he replied that it was.

       10 The prosecutor only offered defense counsel’s accusation during opening
statement as an additional reason for admitting the recording.



                                             25
The prosecutor responded that the statements in the call were admissible as statements of

a party opponent. The court asked defense counsel for authority supporting his objection

and he responded “[i]n many other cases in this courtroom that rule applies, to introduce

evidence the client is not aware that it’s being recorded.” The court allowed counsel until

the next morning to provide authority for his objection and ruled that the call was

admissible in the absence of such authority.11

       Defendant asserts that counsel’s objection to the recording was “frivolous and

demonstrated his lack of knowledge about fundamental rules of evidence [because] the

statements of a party opponent are well-established exceptions to the hearsay rule.” Even

if he is correct that his counsel’s objection constitutes deficient performance, he cannot

demonstrate any prejudice. Counsel’s arguments as to the inadmissibility of the

recording were presented outside of the presence of the jury and by that fact necessarily

could not have affected the outcome of defendant’s case.




       11 The next day, defense counsel did not provide the court with the authority for
his inadmissibility argument and, during the testimony of the investigating officer, the
prosecutor sought to play the recording. In the presence of the jury, the court noted that
the defense’s previous objection to the recording was overruled and defense counsel
responded, “The only thing we had is about [¶] . . . [¶] telephone records being obtained
without the knowledge or consent.”




                                             26
              c. Failure to request unanimity and attempt instructions

       Defendant argues that counsel’s failure to request a unanimity instruction and an

instruction on the lesser included offense of attempted sexual intercourse with a child

constitutes ineffective assistance. He asserts that counsel should have argued at trial

either “that [the victim’s] lack of clarity [and] the lack of physical evidence established

reasonable doubt that either offense occurred more than once,” or “that he was only

guilty of attempted sexual intercourse.” Defendant’s arguments are unavailing because

they assume that he was prejudiced by the absence of instructions on unanimity and

attempted sexual intercourse with a child and, as we concluded ante, he was not.

              d. Other alleged errors

       Defendant recounts many of counsel’s actions before and during trial in an attempt

to support his claim that his attorney was unprepared and abrasive. While some of

counsel’s remarks may not have been as tactful as one might expect given the seriousness

of the crimes,12 defendant has not shown that he has suffered prejudice as a result of any




       12 For example, after Dr. Vivanco explained the anatomy of a vagina and how a
child might perceive pain as a result of vulvar coitus, counsel began his cross-
examination by saying, “Thank you very much, Doctor, for giving us an education in
zoology.” At the beginning of his cross examination of the victim, counsel asked “Do
you habla espanol?”—an apparently random question because counsel never touched
upon the issue of the victim’s language again.




                                             27
of these examples of alleged deficiencies.13 In light of the overwhelming evidence of

guilt in the form of the victim’s testimony, we conclude that none of counsel’s actions

described in defendant’s briefs had a demonstrable effect on the outcome of the case.

(See, e.g., People v. Bradford (1997) 14 Cal.4th 1005, 1052 [where evidence of

defendant’s guilt was overwhelming, the alleged errors made by trial counsel in failing to

object to the admission of evidence were not prejudicial because the result of the

proceeding would not have been different in the absence of such errors].)

              e. Counsel did not completely fail to represent defendant

       Lastly, we address defendant’s argument that counsel’s conduct was so egregious

that “no specific showing of prejudice is required” under United States v. Cronic (1984)

466 U.S. 648 (Cronic).

       Under the Supreme Court’s holding in Cronic, prejudice may be presumed where

“counsel entirely failed to subject the prosecution’s case to meaningful adversarial

testing.” (Banks, supra, 59 Cal.4th at pp. 1169-1170, citing Cronic, supra, 466 U.S. at

p. 659.) The Supreme Court has clarified that this presumption applies in very limited



       13 For instance, defendant describes counsel’s justifications to the court as to why
he was having trouble providing witness statements to the prosecution, as well as
counsel’s unsuccessful attempts to convince the court that testimony on defendant’s
background was relevant. This conduct did not prejudice defendant because the jury did
not see counsel make the unsuccessful arguments defendant complains of, and because
counsel’s tardiness in providing witness statements to the prosecution did not preclude
him from calling those witnesses at trial.



                                            28
circumstances, where the attorney’s failure to test the prosecutor’s case is “complete.”

(Bell v. Cone (2002) 535 U.S. 685, 696–697, italics added.) Otherwise, “ ‘specific errors

and omissions’ by trial counsel must generally be litigated as ineffective assistance of

counsel claims under Strickland.” (Banks, supra, 59 Cal.4th at p. 1170 [where counsel

“unwisely” referenced a partial confession defendant had made to the police that the

prosecution did not plan to introduce into evidence, the court held Cronic did not apply

because counsel did not fail to oppose the prosecution throughout the proceeding as a

whole, but rather at specific points].) California courts apply Cronic’s presumed

prejudice rule “ ‘only where counsel was either totally absent or was prevented from

assisting the defendant at a critical stage.’ ” (People v. Brown (2014) 59 Cal.4th 86, 115.)

       Here, the record makes clear that counsel did not completely fail to subject the

prosecution’s case to meaningful adversarial testing. To the contrary, he objected to the

introduction of evidence, cross-examined each of the prosecution’s witnesses and

attempted to challenge their credibility, and called several character witnesses for the

defense. During closing statements, he made valid attempts to inject reasonable doubt

into the prosecution’s case, such as by pointing out that the victim could not identify

defendant at trial, that there was no physical evidence of molestation, and that no one else

beside the victim testified to having personal knowledge of the crimes. Because

counsel’s actions were consistent with a deliberate trial strategy, whatever its ultimate

merits or success, and because his alleged deficiencies were particularized and not so



                                             29
pervasive that they affected every aspect of trial, we refuse to extend Cronic’s extremely

limited holding to this case.

                                     DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                       P. J.


We concur:


McKINSTER
                           J.


KING
                           J.




                                            30
