Filed 11/18/14 P. v. Walker 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060486

v.                                                                       (Super.Ct.No. RIF1202613)

JARRETT WALKER,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Christian F. Thierbach,

Judge. Affirmed.

         Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Jarrett Walker is serving two concurrent terms of 15 years to life for

orally copulating his friend’s six-year-old sister. For the reasons discussed below, we

affirm the conviction and sentence.




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                                 FACTS AND PROCEDURE

        On June 5, 2012, the defendant, who was 19 years old at the time, was staying in a

friend’s home after having a disagreement with his parents. The friend was the primary

caretaker of his younger brother and sister while their mother worked. That afternoon,

the friend left home to pick up his younger brother from school, leaving his six-year-old

sister at home with his grandfather and defendant. During that time, according to the

sister, defendant orally copulated her twice—once in a downstairs office and again in her

bedroom upstairs. The sister immediately told her older brother what had happened when

he returned home a short time later. Defendant was arrested and interviewed. During the

interview, he eventually confessed to having briefly orally copulated the girl a single

time. Forensic evidence indicated DNA consistent with defendant’s DNA was found on

the girl’s genital area.

        On July 22, 2013, the People filed an information alleging in both counts 1 and 2

that defendant orally copulated a child under the age of 10 (Pen. Code, § 288.7, subd.

(b)).

        On December 12, 2013, a jury convicted defendant on both counts. When the

victim was testifying at trial, the prosecutor asked if she saw defendant in the courtroom.

The victim stated she was not wearing her glasses, and that she was not sure, but she

thought she saw defendant sitting two rows back from the defense table. The person she

pointed to was not defendant, but his older brother.

        On January 10, 2014, the trial court sentenced defendant to 15 years to life on

count 1 and a concurrent term of 15 years to life on count 2.


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       This appeal followed.

                                       DISCUSSION

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d

493], setting forth a statement of the case and identifying one potential arguable issue:

whether the trial court erred when it denied defendant’s motion under People v. Marsden

(1970) 2 Cal.3d 118.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. In a handwritten supplemental brief, defendant argues: 1) the police should

have considered defendant’s brother as a suspect; 2) the victim’s brother testified he was

gone from the home for about ten minutes, which defendant argues was not enough time

for him to commit the two crimes; 3) the details of the crime(s) in defendant’s confession

do not match the details given by the victim; and 4) defense counsel was incompetent

because she did not address these issues when cross-examining witnesses.

       Defendant argues police should have investigated his brother as a possible subject,

given that his brother lived near the home where the crimes took place, that he resembled

defendant enough to confuse the witness at trial, and that his DNA was likely similar to

defendant’s DNA. However, the investigation of a law enforcement body is not the

judgment or order of a lower court, and so is not a proper subject for appeal (Code Civ.

Proc., § 904.1) and so we cannot consider this argument.




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       Defendant’s second and third contentions are in effect challenges to the

sufficiency of the evidence. In reviewing the sufficiency of the evidence, we “ ‘review

the entire record in the light most favorable to the judgment to determine whether it

contains substantial evidence—that is, evidence that is reasonable, credible, and of solid

value—from which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.) Here, the

victim testified that defendant orally copulated her twice while her brother was gone. In

addition, the victim’s brother testified that the victim told him about the crimes

immediately upon his return to the home. The jury also saw a video of the victim

describing the crimes in a forensic interview conducted the day after the crimes. The jury

was entitled to believe this testimony, which in addition was supported by DNA

evidence. We have reviewed the testimony and find more than sufficient evidence to

support the verdict.

       Next, we address defendant’s claim that defense counsel was incompetent. A

defendant who wants to establish a claim of ineffective assistance of counsel (IAC) must

demonstrate, “(1) counsel’s performance was deficient in that it fell below an objective

standard of reasonableness under prevailing professional norms, and (2) counsel’s

deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’

that, but for counsel’s failings, defendant would have obtained a more favorable result.

[Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in

the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing,

among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v.


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Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two components:

deficient performance and prejudice. (Strickland v. Washington, supra, at pp. 687-688,

693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10

Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to

establish either component, his claim fails. When a claim of ineffective assistance is

made on direct appeal, and the record does not show the reason for counsel’s challenged

actions or omissions, the conviction must be affirmed unless there could be no

satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)

       In this case, defendant argues defense counsel rendered IAC because she did not

attempt to establish defendant’s brother as a possible suspect, did not address the effect of

the victim’s brother’s testimony about being gone for only ten minutes on the timeline for

the crimes, and did not address the difference between defendant’s confession and the

victim’s testimony.

       Regarding the defendant’s brother as a possible suspect, defense counsel did cross-

examine the victim about when defendant’s brother was present on the day of the crimes.

The victim answered that the brother was present after the crimes were committed but

before the police took defendant away in a police car. Defense counsel addressed this

issue again on re-cross, getting the victim to state that defendant and his brother looked a

lot alike. Defense counsel attempted, but was unable to, shake the victim’s statement that

she was sure that the man she saw being placed in the police car was defendant, and that

was the same person who did “bad things” to her. Defense counsel also cross-examined

the victim’s older brother about whether defendant’s brother was in the home before the


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victim’s older brother left to pick up his younger brother, and how long it would have

taken defendant’s brother to drive from his own home to the victim’s home where the

crimes took place. Defense counsel got the DNA analyst to testify on cross-examination

that there was a good chance that defendant’s brother’s DNA would be consistent with

the DNA found on the victim’s genitalia, because defendant and his brother had the same

mother and father. Defense counsel also discussed this point during closing arguments.

Also during closing arguments, defense counsel discussed the victim’s misidentification

of defendant’s brother during the victim’s testimony.

       Regarding the time discrepancy, defense counsel addressed this during closing

arguments in an attempt to create reasonable doubt.

       Regarding the difference between defendant’s description of events and that of the

victim, defense counsel discussed this during closing argument.

       Based on the record, there is nothing to indicate that the performance of

defendant’s counsel was deficient in that it fell below an objective standard of

reasonableness under prevailing professional norms. Defendant’s IAC claim fails.

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.


We concur:

McKINSTER
                       J.

MILLER
                       J.




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