Filed 1/27/16 P. v. West CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F068905
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM3571)
                   v.

JOSHUA SCOTT WEST,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Steven D.
Barnes, Judge.

         Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                         INTRODUCTION
         A jury convicted defendant Joshua Scott West on five counts, including four
sexual offenses on a minor: sodomy of B.S., a child under the age of 10 by a person over
the age of 18 (Pen. Code, § 288.7, subd. (a), count 1),1 sodomy of B.S., a child under the
age of 14 and more than 10 years younger than defendant (§ 286, subd. (c)(1), count 2),2
lewd and lascivious conduct against B.S., a child under the age of 14 (§ 288, subd. (a),
count 3), lewd and lascivious conduct against M.G., a child under the age of 14 (§ 288,
subd. (a), count 4), and maliciously and with force preventing or dissuading a victim,
M.G., from acting (§ 136.1, subd. (c)(1), count 5).
         The jury also found true multiple enhancement allegations: defendant personally
inflicted great bodily injury on B.S., who was under 14 years of age (§ 667.61, subds. (a),
(c), (d)(7)), he had two prior convictions within the meaning of section 667.61,
subdivisions (a), (c), and (d)(1), and committed an offense specified in subdivision (c)
against more than one victim (§ 667.61, subds. (b), (c), and (e)(4)), and he had two prior
serious felony convictions (§ 667, subd. (a)(1)). In addition, the jury found true
allegations defendant had two prior serious or violent felony convictions within the
meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
         Defendant was sentenced to an aggregate prison term of 175 years to life plus 10
years.
         On appeal, defendant contends the manner in which the trial court conducted voir
dire did not permit defense counsel to sufficiently test prospective jurors for bias. We
disagree and affirm the judgment.

         1All   undesignated statutory references are to the Penal Code unless otherwise indicated.
         2We note  the abstract of judgment indicates defendant was convicted of section 288,
subdivision (c)(1) pursuant to count 2. This is incorrect. Defendant was convicted of violating
section 286, subdivision (c)(1) in count 2. We will order the abstract of judgment amended to
reflect the correct Penal Code section.
       In addition, we also observe the abstract of judgment fails to indicate defendant’s
sentences pursuant to counts 1, 4, and 5 are consecutive. We will order this corrected as well.

                                                   2.
                   FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution
         B.S. (Counts 1, 2, and 3)
         On September 30, 2012, four-year-old B.S. was visiting his mother K.V. at a
motel where K.V. was living with defendant. K.V. was bathing B.S. in the bathtub when
she left the bathroom to get some soap. After she stopped to watch television
momentarily, defendant entered the bathroom.
         K.V. heard B.S. crying loudly and asked defendant what happened. Defendant
told her B.S. slipped in the tub and fell. B.S. told K.V. he wanted to go home. As B.S.
waited for his ride, he began to act uncharacteristically clingy with K.V. Defendant
asked B.S. for a hug, but B.S. refused.
         B.S. returned to his grandmother’s home, where he lived. His grandmother
observed B.S. acting unusually quiet and clingy. The next day, as she was helping B.S.
in the bathroom, he told her “[his] butt hurts.” B.S.’s grandmother observed mucous and
runny feces inside the toilet bowl.
         Around 7:00 p.m. that evening, B.S.’s grandmother noticed B.S. was not acting
like himself and asked him what was wrong. He told her he was scared of defendant
“‘[b]ecause Josh put his wee-wee in my butt.’” B.S.’s grandmother asked him to lie on
his back so she could look at his bottom. B.S.’s rectum appeared to be dilated to the size
of a quarter and was bright red. B.S.’s grandmother dressed B.S. and took him to the
hospital.
         Dr. Darryl Boulton, an emergency room physician, examined B.S. He noted
B.S.’s anus was red, open, and dilated, which is an abnormal condition. In Dr. Boulton’s
opinion, B.S.’s injuries were consistent with a sexual assault. The hospital reported the
incident to the sheriff’s department and filed a report with child protective services
(CPS).




                                             3.
        K.V. confronted defendant about what B.S. told his grandmother. Defendant
denied doing anything to B.S., but began angrily pacing back and forth and said he could
not go back to prison and stated the incident would count as another strike against him.
        Around midnight, Kings County Sheriff’s deputies went to defendant’s motel
room to arrest him. Deputies found defendant on the roof of the motel and told him to
come down. Defendant responded, “‘Fuck you, I’m not coming down.’” Deputy
Jeremiah Gilson climbed onto the roof and observed defendant holding a knife to his own
neck.
        Defendant told Gilson he did not want to go back to prison, he would rather kill
himself. Defendant stated he knew B.S.’s grandmother had taken him to the hospital and
the incident was reported to the police and CPS. He told Gilson he knew having B.S. in
his residence was a violation of his parole and he would be going back to prison as a
result. Gilson eventually convinced defendant to put the knife down and took him into
custody.
        During police questioning, defendant claimed K.V. asked him to bathe B.S.
Defendant was showering with him, unclothed, when B.S. slipped and fell on his
buttocks. B.S. began screaming and crying after he fell so defendant picked him up,
rinsed him off, wrapped a towel around him, and handed him to K.V. Defendant denied
responsibility for B.S.’s injuries. He stated when K.V. told him CPS was contacted, he
knew the police were going to be coming for him and he was going to jail because he had
violated his parole by having a child in his residence.
        On October 2, 2012, Jennifer Pacheco, a registered nurse, family nurse
practitioner, and forensic nurse examiner, performed a forensic examination on B.S. At
trial, Pacheco explained if B.S. had fallen in the shower, she would expect to see bruising
on his buttocks. Instead, Pacheco observed redness, lacerations, and bruising around
B.S.’s anus. Pacheco testified B.S.’s injuries and symptoms were consistent with anal
penetration.


                                             4.
      On October 18, 2012, Pacheco performed a follow-up examination on B.S.
During the examination, Pacheco noted B.S. had scarring around his anus, as well as
other injuries and symptoms consistent with anal penetration, including a prolonged
period of diarrhea following the incident. According to Pacheco, B.S.’s injuries would
not have been caused by slipping and falling in the bathtub.
      M.G. (Counts 4 and 5)
      Denise R. dated defendant from August 2011 to February or March 2012. During
this time, defendant would come over to her apartment every day after he got off work.
Denise R. had two young daughters, eight-year-old M.G., and M.G.’s two-year-old sister.
Defendant babysat the children on weekends when Denise R. had to work and her sister
was unable to watch the children.
      One day, M.G. and defendant were home alone sitting in the living room.
Defendant told M.G. to sit on his lap. When M.G. complied, defendant put his hand
down her pants, outside of her underwear, and touched her vagina. M.G. got up and
walked into her bedroom. Defendant followed her and told her he would hurt her if she
told anyone. M.G. did not disclose the incident because she feared defendant would hurt
her mother and younger sister.
      Denise R. broke up with defendant after she discovered he was a registered sex
offender. In October 2012, she received a Facebook message from a former coworker,
informing her defendant had been arrested for sexually assaulting B.S. Denise R. asked
M.G. whether defendant had ever done anything bad to her. M.G. began to cry and told
Denise R. defendant had touched her. Denise R. reported the incident to police.
The Defense
      In September 2002, when defendant was 17 years old, he pled no contest to two
counts of committing a lewd act on his younger sister, a child under the age of 14, and
was sentenced to eight years eight months in prison. A condition of his parole required
him to wear an ankle monitor and prohibited him from having any contact with minors.


                                            5.
       Defendant testified he ended his relationship with Denise R. because she was
sleeping with another man. He admitted during the time he dated Denise R., he had
regular contact with M.G. and her younger sister. Defendant claimed he told Denise R.
he wore an ankle monitor because his sister had made allegations of inappropriate sexual
contact, and he had served nearly nine years in prison as a result of the incident. He also
claimed he told her he was a convicted sex offender.
       Defendant denied touching M.G. in an inappropriate manner or threatening to hurt
her. He stated Denise R.’s accusations were based on a desire to make him look bad
because she is a spiteful woman. He admitted to knowingly violating his parole by dating
Denise R. because he was prohibited from dating anyone who had physical custody of
children. He also denied babysitting M.G. and claimed she never sat on his lap.
       Defendant also denied touching B.S. inappropriately. He testified he was
completely forthcoming with K.V. about the reason he had gone to prison. On the
evening of September 30, 2012, defendant stated he came back to his motel room and
decided to take a shower. As he was about to get into the shower, he claimed K.V. told
him to wash B.S. Defendant complied, and as he was washing B.S., he accidentally
dropped him because B.S. was slippery from the body wash defendant used to clean him.
Defendant claimed after B.S. “[f]ell on his ass and cried,” K.V. came into the bathroom,
and he handed B.S. to her.
Voir Dire Proceedings
       Prior to conducting voir dire of the venire panel, the trial court advised counsel it
intended to conduct 90 to 95 percent of the voir dire, including questioning concerning
any biases related to the sexual nature of the case. Counsel would then be permitted to
ask the panel questions, but if counsel wanted to ask each prospective juror the same
question, the question would be posed to the panel rather than each juror individually.
       If counsel wanted to ask questions different from what the court asked, they would
be permitted to do so. Counsel would also be permitted to question prospective jurors


                                             6.
individually about any comments made during the process. However, in the interest of
expediency, if counsel wanted to ask a question the court had already asked, they would
have to approach the bench and explain why it was necessary.
       Counsel for both sides confirmed they understood the procedure and the trial court
proceeded with voir dire. The court asked whether the jurors had any hardships and
questioned the jurors for cause. During this process, three jurors were dismissed. At the
conclusion of the court’s questioning, both the prosecution and the defense were
permitted to question prospective jurors for cause.
       During the jury selection process, attorneys for both the prosecution and defense
may challenge potential jurors for cause or may pass for cause. Counsel may challenge a
prospective juror for cause where there is a legally cognizable basis to believe the juror
does not appear capable of rendering a fair and impartial verdict. Unlike peremptory
challenges, which are limited, both the prosecution and defense may exercise an
unlimited number of challenges for cause. The trial court has the discretion to grant or
deny the challenge. If an attorney decides to “pass for cause,” he or she is allowing the
juror to go unchallenged.
       Defense counsel did not ask any questions before passing for cause. The
prosecution asked two questions. The prosecution exercised one peremptory challenge
and defense counsel exercised two. After both sides passed on further challenges, the 12-
member jury panel was sworn in with three alternate jurors.
                                      DISCUSSION
       Defendant contends the trial court conducted constitutionally inadequate
questioning of prospective jurors concerning possible biases arising from the
inflammatory and emotional nature of his case. We disagree.
       Because the trial court “is in the best position to assess the amount of voir dire
required to ferret out latent prejudice, and to judge the responses” (People v. Taylor
(1992) 5 Cal.App.4th 1299, 1314), it has wide discretion in conducting voir dire in areas


                                             7.
of inquiry that might disclose juror bias and “‘in deciding what questions should be asked
on voir dire.’” (People v. Cleveland (2004) 32 Cal.4th 704, 737.) It abuses that
discretion if its failure to ask questions renders the defendant’s trial “‘fundamentally
unfair’” or “‘“if the questioning is not reasonably sufficient to test the jury for bias or
partiality.”’” (Ibid.)
       To the extent defendant asserts the manner in which the trial court questioned
prospective jurors precluded him from determining their potential biases, he forfeited his
claim by failing to object below. “A defendant ordinarily cannot obtain appellate relief
based upon grounds that the trial court might have addressed had the defendant availed
himself or herself of the opportunity to bring them to that court’s attention.” (People v.
Fuiava (2012) 53 Cal.4th 622, 655.) Although defendant maintains the issue is,
nonetheless, reviewable on appeal because any objection would have been futile, he does
not cite to any evidence in the record to support his assertion.
       Defendant contends in the event this court finds his claim was forfeited, defense
counsel rendered ineffective assistance of counsel by failing to object and declining to
exercise further peremptory challenges. Great deference is afforded to counsel’s tactical
decisions, and a defense attorney’s failure to object will rarely support a finding of
ineffective assistance of counsel. (People v. Jones (2009) 178 Cal.App.4th 853, 860.)
Such deference is appropriate here, where the record does not demonstrate any
compelling reasons for defense counsel to have objected to the court’s questioning or to
have exercised further peremptory challenges.
       Moreover, even if defendant’s claim were properly before us, it fails on the merits.
For the reasons set forth below, there is no evidence in the record suggesting the jury was
unfair or biased, or that defendant’s fundamental rights were compromised.
1.     Prospective Jurors Nos. 146781, 146905, 154325
       Defendant first complains the trial court violated his constitutional right to an
impartial jury by conducting voir dire in a leading manner insufficient to allow counsel to


                                              8.
challenge jurors for cause. Defendant specifically asserts several incidents support his
claim the trial court asked prospective jurors improper leading questions, rendering his
trial fundamentally unfair.
       The first incident occurred after Prospective Juror No. 146781 told the court he
knew the investigator for the prosecution, Officer Robert Balderama, because their
children had played in Little League together. The judge asked the juror, “[If] Balderama
testifies, are you going to believe him over anybody else just because you know him from
Little League?” The juror said he would not.
       Later, during the voir dire process, the judge asked potential jurors whether they
were acquainted with any of the witnesses. When Prospective Juror No. 146781
indicated a second time he was acquainted with Balderama, the court asked him,
“[A]bout Officer Balderama, you’re not going to give his testi[mony] any greater weight
than anybody else?” The juror replied he would not.
       The second incident occurred after the judge read the information to the jury and
asked whether the nature of the charges would make it difficult for any of the prospective
jurors to act fairly and impartially. Prospective Juror No. 146905 indicated she had a
problem ignoring defendant’s prior convictions. The court proceeded to question
Prospective Juror No. 146905 extensively about whether she could refrain from
prejudging the case. She indicated the problem was the emotional nature of the case.
The court responded by asking her, “So you would let your emotions control how you
vote irrespective of what the evidence is?” The prospective juror responded she did not
know how she was going to react.
       The court explained to Prospective Juror No. 146905 she would have to refrain
from prejudging the case and must vote based on the evidence presented. The court
asked whether she could render “a reasonable, rational, intelligent decision based upon
the evidence that’s presented,” and she replied affirmatively.




                                             9.
       Lastly, Prospective Juror No. 154325 told the court she knew the prosecutor
because she was her customer every Saturday at the restaurant where she worked. The
court asked the prospective juror, “[Y]ou’re not going to vote one way or—well, let’s say
that she doesn’t prove this case beyond a reasonable doubt and you—you make that
decision and you vote that direction, and then she comes in on Saturday, how are you
going to feel?” The prospective juror responded it would not affect her ability to do her
job.
       Pursuant to standard 4.30(c) of California Standards of Judicial Administration,
when counsel examines prospective jurors, “the trial judge should not permit counsel to
attempt to precondition the prospective jurors to a particular result or allow counsel to
comment on the personal lives and families of the parties or their attorneys.” Defendant
asserts under standard 4.30(c), the trial court asked the prospective jurors improper
leading questions.
       Although we note the authority defendant cites to applies to an attempt by counsel
to elicit a particular response, rather than the court, we find the court’s questions were
adequate as posed. Additionally, each prospective juror gave a clear and unequivocal
indication he or she would render a decision regarding defendant’s guilt or innocence
based on the evidence presented. We find no evidence in the record to suggest any of the
prospective jurors would be unable to do so.
2.     Prospective Juror No. 151026
       Defendant also argues the court failed to disclose the nature of its relationship with
Prospective Juror No. 151026. The court asked the prospective jurors about their prior
jury service. In response, Prospective Juror No. 151026 informed the court she had
previously served on a jury. The court replied, “That’s right, and I know that. I already
knew that that’s what it was. You know how I knew that, right? Because we—we’ve
met before, have we not?” Prospective Juror No. 151026 confirmed they had met
previously. The court asked the prospective juror, “[T]he fact that you and I were


                                             10.
acquainted at one time with one another wouldn’t have any affect whatsoever on your
ability to sit as a juror, correct?” Prospective Juror No. 151026 replied it would not.
       We find no suggestion the trial judge’s prior acquaintanceship with Prospective
Juror No. 151026 created the appearance of impartiality in violation of Code of Civil
Procedure section 170.1, which provides a judge shall be disqualified if “[a] person aware
of the facts might reasonably entertain a doubt that the judge would be able to be
impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) If defendant had any doubt
about Prospective Juror No. 151026’s ability to fulfill her duties as a jury member,
defense counsel could have questioned her about the nature of her relationship with the
judge. Nothing in the record suggests further inquiry by defense counsel would have
alienated the court, as defendant argues.
3.     Prospective Jurors Nos. 157575, 146781, and 176412
       Defendant raises other issues in his brief, including (1) the trial court did not
question Prospective Juror No. 157575 about how he knew the father of a witness for the
prosecution at trial, Gilson; (2) the nature of Prospective Juror No. 146781’s relationship
with law enforcement was unexplained; (3) multiple jurors knew individuals or had
family members who were sexually assaulted; and, (4) Prospective Jurors Nos. 176412
and 146781 were friends and saw each other a few times a year.
       Each prospective juror indicated he or she would have no problem rendering a fair
and impartial decision in the instant case. As previously explained, if defendant had any
doubt as to whether the potential bias of any prospective juror was sufficiently probed by
the trial court, counsel had the opportunity to ask additional questions, to challenge
prospective jurors for cause, and to exercise additional peremptory challenges. Indeed,
the only inference to be drawn from defense counsel’s failure to do so is he concluded the
prospective jurors were capable of rendering a fair and impartial decision. Any
suggestion jury members would be unable to do so simply because they had a friend,




                                             11.
family member, or acquaintance suffer sexual abuse, knew someone in law enforcement,
or knew the father of one of the witnesses for the prosecution, is pure speculation.
4.     Six Prospective Jurors
       Defendant also challenges the court’s questioning during voir dire because six
prospective jurors failed to respond to any of the trial court’s panel questions, and none of
the prospective jurors responded to the court’s question of whether anybody would credit
a police officer’s testimony over the testimony of other witnesses. Defendant specifically
contends the prospective jurors’ reluctance to respond could be attributed to “a lack of
understanding, resentment, prejudice, anger or embarrassment to reveal unsavory facts
before others because the trial court never gave [them] the opportunity to speak
privately.”
       Defendant does not cite any legal authority that would lead us to conclude the trial
court abused its discretion as a result.3 It is defendant’s burden to “affirmatively
demonstrate error through reasoned argument, citation to the appellate record, and
discussion of legal authority.” (Bullock v. Philip Morris USA, Inc. (2008) 159
Cal.App.4th 655, 685; see Cal. Rules of Court, rule 8.204(a)(1)(C).) In the absence of
any legal authority suggesting the trial court erred under the circumstances, we cannot
conclude the trial court’s questioning was improper.
       In addition, contrary to defendant’s assertion, the jury did respond to the court’s
question of whether any of the potential jurors would have difficulty using the same
standards to assess a police officer’s testimony as that used to judge other witnesses. The
court noted none of the jurors raised a hand in response to the question and interpreted
the jurors’ abstention to indicate they would not have any difficulty using the same


       3We note   defendant’s discussion of a 2004 report examining a 1999 article. (Nat. Center
for State Cts., Examining Voir Dire in California (Aug. 2004) p. 11; Mize, On Better Jury
Selection: Spotting UFO Jurors Before They Enter the Jury Room (Spring 1999) 36 Ct. Rev. 10.)
However, this is not a primary or even a secondary authority. Although helpful, these materials
do not compel a particular result.

                                              12.
standards to assess the testimony of all witnesses, including police officers. Thus,
defendant’s interpretation of the jurors’ silence as a “a lack of understanding” is
unpersuasive and is not supported by the record.
         We conclude the trial court did not err in questioning the jury during voir dire.
                                        DISPOSITION
         The trial court is directed to prepare an amended abstract of judgment to send to
all appropriate agencies to reflect the following corrections:
         1. Defendant was convicted of violating section 286, subdivision (c)(1) of the
Penal Code, pursuant to count 2.
         2. The box indicating a sentence is consecutive shall be marked as to counts 1, 4,
and 5.
         In all other respects, the judgment is affirmed.


                                                            ___________________________
                                                                                PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
DETJEN, J.




                                              13.
