Filed 3/12/15 P. v. Flores CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B248404

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA083755)
         v.

ALEXANDER FLORES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Carter, Judge. Affirmed.


         Mark S. Shapiro for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, James William Bilderback II, Marc A. Kohm and Alene M. Games, Deputy
Attorneys General, for Plaintiff and Respondent.
                                         INTRODUCTION
         A jury found defendant and appellant Alexander Flores guilty of multiple counts
of forcible rape and of sodomy by use of force against K.S. On appeal, he contends that
his trial counsel provided ineffective assistance by failing to “confront” evidence that a
third party was responsible for K.S.’s injuries. We reject the contention and affirm the
judgment.
                       FACTUAL AND PROCEDURAL BACKGROUND
I.       Factual background.
         A.     Prosecution’s case.
         On the night of June 17, 2011, K.S., a lesbian, went to a nightclub with friends and
family, including her cousin, Gregory S. (Greg), who drove her to the club.1 At the club,
K.S. met, for the first time, defendant. He came with William Justin Mesa, K.S.’s friend
and former boyfriend. Defendant flirted with K.S., who was not interested.
         Although K.S. had come to the club with Greg, he left without her. At
approximately 2:00 a.m., K.S. left the nightclub, thinking that Mesa would take her
home. Mesa instead told her that defendant would take her home. Defendant drove K.S.
home, and they went inside her apartment to eat some food defendant had bought. K.S.
thought that they would eat the food, but that was it: she did not invite him in to have
sex.
         In her apartment, K.S. took off her shoes and went into her bedroom. Uninvited,
defendant came into her bedroom and pushed her onto the bed. K.S. tried to get off the
bed, but he pushed her back onto it. K.S. told him, “ ‘No, I’m good,’ ” meaning she
didn’t want “to do this.” Defendant had one hand on her shoulder, and he was between
her legs, removing the spanx she wore underneath her dress. He put his penis in her
vagina three times, and each time K.S. pushed back, once hitting her head on the wall.
Defendant tried to insert his penis into K.S.’s anus twice, and the third time she felt his
penis go in and defendant climax. Defendant threw a blanket over K.S. and left.


1
         K.S.’s girlfriend was supposed to go with her that night, but she cancelled. 

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       K.S. called Greg. Greg and friends took K.S. to a hospital, where she was
examined by a sexual assault nurse examiner on the afternoon of June 18, 2011. Samples
were obtained from K.S.’s vaginal and anal areas. K.S. had “some tenderness to the
lower aspect” of her vagina and “hymen,” and a “notch,” which is similar to a tear. The
nurse could not determine whether the notch was an old or new injury. There was a
redness to K.S.’s cervix. K.S. had three lacerations to her rectal area. K.S.’s injuries
were consistent with forced intercourse and sodomy.
       The Monday after the rape, K.S.’s family helped her move out of her apartment.
In her bedroom they found two used condoms.
       DNA analysis included defendant as a “contributor” to K.S.’s vulva, vaginal,
cervical, and external and internal anal samples.
       B.     Defense case.
       Defendant testified that he had consensual oral and vaginal sex with K.S. He
denied having anal sex with her.
       Marc Taylor runs a laboratory that analyzes DNA. He “re-analyzed” electronic
data about K.S.’s samples, but he did not retest the samples. As to the vulva sample,
there was a mixture of two individuals, and defendant could not be excluded as a source
of that DNA. The other individual “is most likely another sperm donor.” The “unknown
profile” in the vulva sample was not seen in any other sample.
II.    Procedural background.
       An information filed on August 16, 2011 alleged against defendant three counts of
forcible rape under Penal Code section 261, subdivision (a)(2) (counts 1-3) and three
counts of sodomy by use of force under Penal Code section 286, subdivision (c)(2)(A).
Because a first jury could not reach a unanimous verdict, the trial court declared a
mistrial on July 9, 2012.
       On January 28, 2013, a second jury found defendant guilty of three counts of
forcible rape (counts 1-3) and of two counts of sodomy by use of force (counts 4 & 5).
The jury found him not guilty of count 6 for sodomy by use of force but guilty of the
lesser offense of simple battery (Pen. Code, § 243, subd. (a)).

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       On April 29, 2013, the trial court sentenced defendant to six years on count 1, to
three years on count 2, and to eight years on count 4, for a total of 17 years in prison.
The court imposed concurrent sentences on counts 3 and 6.
                                           DISCUSSION
I.     Ineffective assistance of counsel.
       Defendant contends that his trial counsel was ineffective because he failed to
comply with Evidence Code section 7822 and to “confront the issue of appellant’s DNA
in [K.S.’s] anus.” On this record, we find no ineffective assistance of counsel.
       A.     Additional background.
       On January 16, 2013, before trial, defense counsel represented that he would
introduce impeachment evidence via a forensics expert, Taylor, who found DNA from a
male donor other than defendant in one of K.S.’s samples. When counsel was unable to
give the trial court additional information, such as which sample contained DNA from
another male donor, the court said it would address the issue later in the day, when
defense counsel had his expert’s report. The record does not show that the issue was
again discussed that day. Instead, defense counsel gave Taylor’s report, dated
January 22, 2013, to the court on January 23, 2013. Taylor thereafter testified for the
defense that there was a second sperm donor in the DNA sample from K.S.’s vulva.
       Thereafter, during a break in Mesa’s testimony, the trial court said that since
counsel had touched on DNA from another contributor, the court wanted the parties to
discuss the admissibility of evidence under section 782. Defense counsel argued that the
presence of DNA from a male donor other than defendant “would tend to prove that she
recently had intercourse with another man” and “it could explain the presence of the
injuries since [defendant] . . . will testify or will deny that he had anal intercourse with
her.” The parties and trial court then had this discussion:




2
       All further undesignated statutory references are to the Evidence Code.

                                               4
       “The Court: So it’s your argument that the unidentified fraction that was found in
the vulva sample is evidence that she’s had sexual intercourse with someone else and
then that explains any injuries that she may have?”
       “[Defense Counsel]: Well, I don’t know that I plan on arguing that, but that’s my
own personal belief.
       “The Court: But doesn’t 782 say that you can’t do that? 780 tells you when you
can attack the credibility of a witness, and then 782 has a specific limitation that you
cannot attack the credibility of a sexual assault victim by arguing that they’ve had
previous sexual encounters. [¶] So before we get into that argument, I needed to know
what your argument is going to be and right now I think that any discussion of the
complaining witness’ prior sexual conduct would be inadmissible. So unless you have
another case or another theory, I’m going to exclude any argument on that. You can’t tell
the jury, you know, that she’s had sex with other people so, therefore, she wasn’t raped.”
       Defense counsel then proposed asking Mesa whether he’d had sex with K.S. since
they broke up, some nine years ago: “[M]y offer of proof is that Justin Mesa would say
that approximately––he couldn’t specify, but a number of years after they broke up they
were sexually intimate on one occasion, so it tends to prove that whatever animosity she
claims existed between them at the time of the original breakup did not actually exist
because on some level they were friendly.” The court found that the evidence was
irrelevant, unless Mesa had sex with K.S. the night before the one at issue; otherwise
whether they had sex years or even months before was inadmissible under section 782.
       B.     The record fails to show that defense counsel provided ineffective
assistance.
       “To establish ineffective assistance of counsel, a defendant must show that
(1) counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was prejudicial,
i.e., there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v.

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Scott (1997) 15 Cal.4th 1188, 1211-1212; see also Strickland v. Washington (1984) 466
U.S. 668, 694; People v. Homick (2012) 55 Cal.4th 816, 893, fn. 44.) If the defendant
makes an insufficient showing on either component, the claim fails. (Homick, at p. 893,
fn. 44.) The claim also fails if the record 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 there simply could be no satisfactory explanation. (People v. Carter
(2003) 30 Cal.4th 1166, 1211; People v. Vines (2011) 51 Cal.4th 830, 875-876; People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       A reviewing court defers to “ ‘ “counsel’s reasonable tactical decisions in
examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” [Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 876; see also
People v. Carter, supra, 30 Cal.4th at p. 1211.) “Judicial scrutiny of counsel’s
performance must be highly deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ [Citation.] There are
countless ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.” (Strickland v.
Washington, supra, 466 U.S. at p. 689.)
       Here, defendant’s first claim of ineffective assistance is premised on his trial
counsel’s alleged failure to present evidence under section 782. In a prosecution for sex

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offenses, specific instances of a complaining witness’s sexual conduct are not admissible
to prove the witness’s consent. (§ 1103, subd. (c)(1); People v. Fontana (2010) 49
Cal.4th 351, 354.) Such evidence, however, may be admissible when offered to attack
the credibility of the complaining witness, provided that its probative value outweighs the
danger of undue prejudice and the defendant otherwise complies with the procedures set
forth in section 782. That section requires the defendant to file a written motion and to
make an offer of proof detailing the relevancy of the evidence. (§ 782, subd. (a)(1) & (2);
Fontana, at p. 362.) If the court finds the offer sufficient, it shall order a hearing out of
the jury’s presence to allow questioning of the complaining witness regarding the offer of
proof. (§ 782, subd. (a)(3).) If the court finds the evidence relevant under section 780
and admissible under section 352, the court may make an order stating what evidence
may be introduced by the defendant and what questions are permitted. (§ 782,
subd. (a)(4).)
       To the extent defendant’s claim of ineffective assistance of counsel is based on his
trial counsel’s failure to comply with the formal requirements of section 782, we discern
no prejudice. The trial court, despite the absence of a written motion, considered the
admissibility of evidence under that section. The court, for example, permitted the
defense expert, Taylor, to testify that an unidentified man’s sperm was found in K.S.’s
vulva DNA sample. Assuming that this evidence falls under section 782, it was admitted.
       To the extent defendant’s ineffective assistance claim is premised on his alleged
failure to introduce other evidence under section 782, we also reject such a claim.
Although a complaining witness’s prior sexual conduct is inadmissible to prove her
consent, section 1103, subdivision (c)(1) “does not bar evidence of the complaining
witness’s prior sexual conduct when offered to explain injuries the prosecution alleges
were the result of the defendant’s conduct.” (People v. Fontana, supra, 49 Cal.4th at
p. 363.) In Fontana, the victim alleged that the defendant raped her. The defendant
denied having sex with the victim. (Id. at p. 359.) He claimed that when the victim
disrobed, he saw semen between the victim’s legs. The victim told a nurse that she had
consensual sex with her boyfriend earlier in the day, before the defendant raped her. (Id.

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at p. 366.) Because some of the victim’s injuries could be explained by her consensual
activity with her boyfriend, Fontana found that the trial court should have conducted a
hearing regarding the admissibility of that evidence. (Id. at pp. 366-368.)
       Here, defense counsel asked permission to explore any sexual relationship Mesa
had with K.S., who testified that although she was a lesbian she had also once dated
Mesa. According to defense counsel’s own offer of proof, however, Mesa and K.S. had
not had a sexual relationship for years. Moreover, there was no suggestion that Mesa had
sex with K.S. at any time near or on June 17, 2011 or that he was the unidentified source
of sperm. Unlike in Fontana, there was no evidence that K.S.’s relationship with Mesa
could explain her injuries. K.S.’s past sexual history with Mesa was therefore
inadmissible under section 1103, subdivision (c)(1).
       Defendant, however, asserts that his counsel should have more strongly
“confronted” evidence that the existence of another man’s sperm in K.S.’s vulva sample
tended to show that someone other than defendant injured K.S. We still fail to perceive
any ineffective assistance of counsel, because the issue was addressed. First, Taylor’s
testimony suggested that possibility. Second, defense counsel cross-examined the
People’s criminalist about the “presence of a male contributor in the vulva sperm
fraction, a male contributor other than” defendant. She answered: “The data for this
sample was very, very low level, what we call stochastic. In this range a partner allele
can drop out. So as I said before, half from your mother, half from your father of your
DNA. You are going to get one peak from your mom, one peak from your dad. At this
low level where the vulva sample came out, you may see dropout of one or two of the
peaks. [¶] And so all of the data in this sperm fraction of the vulva sample was at this
low level except for at that one location. And so my experience I would not confidently
say that other person was male, but I would say that there was another person there. It
could be male or female.” Defense counsel therefore did put evidence before the jury
that K.S. recently had sex with another man, raising the inference that another person
could be responsible for her injuries.



                                             8
       Third, the trial court expressly asked defense counsel if he was arguing that “the
unidentified fraction that was found in the vulva sample is evidence that she’s had sexual
intercourse with someone else and then that explains any injuries that she may have?”
Defense counsel said he did not plan on arguing that, although it was his personal belief.
It therefore appears that defense counsel made a tactical decision to rely on the forensic
evidence to imply that a third party was responsible for K.S.’s injuries. He may have
made this decision because he simply had no other evidence to support that theory or he
did not want to risk alienating the jury by appearing to cast aspersions on K.S. On this
record, we cannot second guess that decision. (See generally Strickland v. Washington,
supra, 466 U.S. at p. 689.)
       Defendant’s second claim of ineffective assistance of counsel is based on an
alleged “failure to investigate the scientific” explanations for how defendant’s DNA
ended up in K.S.’s anal DNA sample.3 But defendant’s expert, Taylor, indirectly
addressed this. When asked if Taylor attached any significance to the fact that the
unknown profile was not seen on any other DNA sample, he answered: “It could have
only been deposited externally. It might have been from an earlier encounter where a
drainage was involved. We can’t say. We just know that we see it on the external of the
vulva sample. We are seeing a mix based on the extraction procedure. I would conclude
that this is a mix of sperm from two individuals. But certainly that sperm could get there
through any number of different sexual activities, and it could be sexual activities with
two women if one of the women had had contact with a man earlier.” This concept of
“drainage” suggested that defendant’s DNA could have been in K.S.’s anal sample even
if, as defendant claimed, they only had vaginal sex.
       Defense counsel also addressed the issue in his closing argument. After reminding
the jury that defendant denied having anal sex with K.S., counsel argued: “But do you
remember that Mr. Flores also told you that it was as he was seated down with an

3
       Defendant asserts that this issue was crucial because the first jury asked, during
deliberations, “Explain why there was evidence of [defendant’s] DNA in anus but
[defendant] denied anal intercourse[.]”

                                             9
erection wearing no underwear, she straddled him. As he sat on the edge of the bed, she
sat on top of him facing him with her genital areas exposed for some period of time. He
told you that. [¶] So is it consistent or is it possible that that’s how the DNA transfer
occurred? We have no one on the prosecution’s side to say that’s not possible. Not one
person came in from the prosecution’s side and said, well, when a man is sitting on
something with his genital areas exposed and having an erection and a woman is facing
him straddling him also with her genital areas exposed, is it possible for the transfer of
DNA. [¶] Nobody has told us that that’s not possible. And it’s not our burden to prove
things to you. So there is no evidence to contradict that that’s what happened.”
       Counsel also argued: “With respect to the anal sex, he’s denied it. But how the
DNA got there, how that redness ended up in her anal area, we don’t know. We know
that according to Marc Taylor and according to the People’s own DNA experts there was
a presence of what could be another male donor. [¶] Now, Mr. Taylor told you with
more certainty than Ms. Fraser that it was a male donor. She told you it could be a male
donor. It could be a female donor. Mr. Taylor was more certain. He said, ‘No, it was a
male donor.’ ”
       Although his trial counsel therefore did explain how defendant’s DNA could have
ended up in K.S.’s anal sample if he didn’t have anal sex with her and counsel did argue
that issue to the jury, defendant suggests more should have been done. Again, we cannot
second guess trial counsel’s tactical decisions. (See, e.g., People v. Vines, supra, 51
Cal.4th at p. 876 [decision not to introduce third party culpability evidence was a tactical
one]; People v. Freeman (1994) 8 Cal.4th 450, 498 [“The decision of how to argue to the
jury after the presentation of evidence is inherently tactical”].)
       Defendant also alludes to other evidence, which is not a part of the record on
appeal, that might explain how his DNA ended up in the anal sample. Such claims are
better raised by way of a writ of habeas corpus. (People v. Mai (2013) 57 Cal.4th 986,
1009; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [direct appeal alleging
ineffective assistance should be denied if the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged].)

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                                   DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               ALDRICH, J.


We concur:


             KITCHING, Acting P. J.




             EGERTON, J.*




*
      Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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