People v. Almanza (233 Cal. App. 4th 990, 2015)

Opinion

RUSHING, P. J.

— Defendant appeals from a judgment arising out of sex crimes against a girl. The trial court made serious mistakes by failing to adequately inquire into and police the prosecutor’s conduct after the prosecutor threatened to prosecute the defense investigator and insinuated that defense counsel could also be prosecuted, in each case for reasons both parties now agree would have been groundless. Defense counsel also failed to do all he could to safeguard defendant’s right to the effective assistance of counsel when this occurred. We would reverse the judgment and remand for retrial with a defense team not under this sword of Damocles, but, as we explain in part I of our discussion, People v. Doolin (2009) 45 Cal.4th 390 [87 Cal.Rptr.3d 209, 198 P.3d 11] (Doolin), compels us to affirm it. In part II of our discussion, we raise the question whether our Supreme Court intended Doolin to apply in these circumstances and suggest an alternative approach.

Procedural Background

An information charged Antonio Almanza with four counts of a nonforcible lewd or lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a)), three counts of forcible sodomy (§ 286, subd. (c)(2)), and one count of a forcible lewd or lascivious act on a child under age 14 (§ 288, subd. (b)(1)).

Defendant waived his right to a jury trial. Following a contested trial to the bench, the court adjudged him to be guilty of the lewd act counts but not guilty of the sodomy counts.

The trial court sentenced defendant to an aggregate term of 16 years in state prison.

Facts

I. Prosecution Case

Jane Doe, a teenager at the time of trial, had three brothers. The children all lived under the same roof as their mother, A.A., and defendant. Jane was the second oldest child. When Jane was a baby, defendant moved into the house to be with A.A. Defendant and A.A. never married, but Jane and her brothers regarded him as their stepfather.

Jane Doe testified at length. Defendant started to sexually molest her when she was around seven or eight years old, and continued until about two weeks before his arrest, which occurred when Jane was 12. Once when Jane was taking a shower in the master bathroom, defendant opened the shower door and inserted his finger in Jane’s vagina. Jane, too young to understand the import of this act, laughed because at the time she thought it was “funny.”

Over the next several years, defendant repeatedly inserted his penis in Jane’s vagina and between the cheeks of her buttocks. The molestations would occur while Jane and defendant were alone, usually in the master bedroom while the television set was on, and always on weekends. Once, in early 2012, while defendant and Jane were alone in the living room, defendant placed Jane’s hand on his penis and moved her hand up and down. On other occasions defendant manipulated Jane’s breasts. These acts were done against her will.

After the authorities discovered what was happening, Jane was interviewed at a police station and a hospital. The trial court listened to recordings of the interviews. Jane also made a so-called pretext telephone call to defendant from the police station and the court listened to the recording of the call. The transcription of the call includes the following exchange:

“[Jane Doe]: . . . you touched me. [¶]... [¶]

“[Defendant]: And who did you tell? [¶]... [][]

“[Defendant]: You know what’s going to happen, right?

“[Jane Doe]: No. [¶]... [¶]

“[Defendant]: OK. The same thing is going to happen as the time with, with [your brother A.M.]. If you’re talking to somebody, or if you told somebody.

“[Jane Doe]: You put your penis down my vagina.

“[Defendant]: So what? [¶]... [¶]

“[Jane Doe]: You, you did it to me.

“[Defendant]: Ahhh ....

“[Jane Doe]: You know what I’m talking about.

“[Defendant]: No.

“[Jane Doe]: You don’t have to lie!

“[Defendant]: When?

“[Jane Doe]: . . . You touched me. Tell the truth.

“[Defendant]: OK bye, bye. Don’t tell anyone, OK?”

Defendant’s reference to Jane’s brother regarded physical child abuse Jane’s mother, A.A., had committed. A.A. beat Jane, her brother A.M., and another brother with a belt in 2006. The children were removed from the home by child welfare authorities. A.A. was convicted of child abuse and served a few days in county jail.

As Jane made the pretext call, police were waiting outside the family’s house. One officer knocked on the front door and asked if defendant was home. Defendant ran out the back door and tried to jump over a boundary fence but was apprehended.

Over the next several months, Jane was interviewed three times by defense investigators — twice by Gregory Lepore and once by Mark Zome. The first interview was with Lepore, and Jane described the molestations in much the same way she had described them to authorities. In the other two interviews, one with Lepore, one with Zome, Jane recanted her accusations.

Jane’s mother, A.A., was present during the interview with Zome but not during those with Lepore. The prosecutor asked Jane, “[W]hen you spoke to Mr. Zome, was your mom with you, was she sitting there with you while you and he was [sic] talking about this?” Jane answered, “Yeah.” The prosecutor then asked Jane about “your relationship with your mom” in these terms: “Prior to telling [your friend] and having [child welfare authorities] become involved and the officers and this whole case starting, you didn’t tell your mom?” Jane answered no, and that a child welfare worker had informed her mother of her allegations. The prosecutor turned to another line of inquiry, asking Jane if she “remember[ed] a case where your mom hurt you,” and Jane replied, “She hit me with a belt” and struck two of her brothers too.

On cross-examination, defense counsel pursued the theory that Jane wanted revenge against defendant for other reasons, and she admitted that he would spank her for legitimate disciplinary reasons and that his doing so angered her.

At the outset of cross-examination, the defense attorney played recordings of Jane’s second and third interviews with the defense investigators. In both interviews — those in which Jane recanted — she said defendant had not abused her. She had lied about the molestations because she was angry at defendant for having disciplined her when she failed to do her homework. She denied to Lepore that her mother was influencing her to recant.

Also on cross-examination, the defense brought out a number of discrepancies between Jane’s extrajudicial and in-court statements. Jane testified she had lied when she told Lepore she had described the molestations to two of her friends. In fact, she had only told one of the friends about them. She had lied when she told Zorne she had gotten the idea about accusing defendant from a television show. She had told a police officer that defendant had raped her 17 times, whereas in fact he had raped her three or four times. She told her interviewer at the hospital that defendant’s penis had penetrated her rectum three times, causing pain, but testified at trial that this had not occurred. (As noted, the trial court acquitted defendant of the three forcible sodomy charges.) In addition, her trial testimony was inconsistent in a minor respect: on direct examination, she had testified that defendant had lived with the family for four or five years, when in fact he had lived with the family for about 12 years, ever since she was a baby.

II. Defense Case

Defendant testified and denied committing any crimes against Jane. The two were never alone in the master bedroom. None of the children was permitted to take showers in the master bedroom. He sometimes had to discipline the children because A.A., who had been convicted of beating some of them with a belt, could not do it.

Defendant knew that the telephone call was a pretext call, which he thought was being engineered by social workers. It was on that basis that he told Jane not to talk to people about family business. He denied running out of the house when a police officer came to the door after the pretext call ended. Instead, he had been fixing a vacuum cleaner in the back yard.

Lepore, the defense investigator, testified about his two interviews of Jane. The first was at Jane’s house. A.A. was at home but did not attend it. In that interview, Jane said she had been sexually molested by defendant many times, but had trouble remembering dates. Jane said she had told her friend “her stepfather had put his penis inside her vagina and butt.” She then corrected herself to state “there was one occasion when the penis was inserted in the butt” but he had not attempted to rape her. Defendant sodomized Jane one more time, Lepore recollected her as telling him.

The second interview occurred because A.A. had telephoned defense counsel and said Jane wanted to recant, so Lepore returned to the house. During that interview, which Lepore recorded, Jane denied being molested and said she had falsely inculpated defendant, relying on ideas she obtained from watching a television show, because defendant “was upset with her that she hadn’t performed well on a particular school project” and “had spanked her.” As with the first Lepore interview, A.A. was at home but elsewhere in the house during the interview.

A.A. gave detailed testimony. She confirmed she had attended only Jane’s third interview, the one with Zome. She denied trying to influence her daughter during that interview, in which Jane recanted her accusations against defendant. She remembered only “bits and pieces” of what was said during her daughter’s interview with Zome.

A.A. also testified that she had spent four days in jail in 2006 after beating her children with a belt. She had had difficulty disciplining the children, and Jane was disobedient and rebellious and had a learning disability.

A.A. further testified that although she had never questioned defendant about her daughter’s allegations, she did not believe he had harmed her, although Jane showed signs of premature sexualization; before fifth grade she had “started wearing makeup and having boyfriends behind my back.” A.A. was laid off from her job in February of 2011 and did not find new work until December of 2012, so she stayed home with the children most of the time, while defendant worked outside the house. At other times, defendant was not at home at all, either because A.A. had thrown him out (one such exile lasted about six months, from Apr. to Oct. of 2010) or because he was away to work on construction projects. A.A. was at home on weekends, which is when Jane stated most of the molestations had occurred, although the children could be alone with defendant for two-hour periods, notably on one Saturday a month. Defendant had spanked Jane for legitimate disciplinary reasons the night before Jane told her friend that he had been sexually abusing her.

Jane, A.A. also testified, had been caught cheating on her homework and defendant had spanked her for doing so. Jane later told her mother she had falsely accused defendant because she was mad at him. A.A. had never seen Jane watching a movie with defendant, and the children were prohibited from entering the master bedroom. There was an exception: the children occasionally used the master-bedroom shower, but not until recently.

A.A. testified that she and Jane were summoned to the prosecutor’s office for two interviews there. At the outset of the first one, Jane told the prosecutor she had lied. (A.A. did not know what the lie referred to.) This was in A.A.’s presence. The prosecutor then asked A.A. to leave. He also asked her to step out of the room for the second interview.

A.A. feared what she perceived to be her daughter’s power over her. “This conviction . . . has haunted me since 2006. Has made me look like I am the worst mother in the world.” “I’m scared that if I keep telling her not to wear makeup she’s going to go to the teacher or . . . the police and say that I’m being mean to her.” On cross-examination, she testified that her children “control me. I can’t help it. They control me.” A.A. testified on redirect examination that both she and defendant were potential victims of Jane’s ability to falsely accuse them of misdeeds if they tried to discipline her for wearing makeup or cheating in school.

On cross-examination, the prosecutor established that A.A. remained close to defendant, catching her in a trap as he established this. After getting her at the outset to describe defendant as her “ex,” someone she had visited in jail four or five times, the prosecutor offered to show her jail records listing 12 visits, including one within the last two weeks. A.A. conceded the point, but tried to explain away the visits by saying they were for the benefit of a son she took with her. “It’s not me visiting him. I took my son,” she testified.

Jane’s brother G.M. testified that he and his siblings were always placed with a babysitter or at a Boys & Girls Club when their mother was working, and the children were never alone with defendant on weekends. (A.A. had also testified that the club was a destination for the children when they were not in school.)

Another brother, the aforementioned A.M., testified similarly to his brother. His mother ordinarily would place the children with a babysitter or at the Boys & Girls Club when she worked. Although A.M. could be alone with defendant, that was only when defendant was taking A.M. to defendant’s workplace at construction sites on weekends and during the summer school vacation. Jane did not go on these trips; she always went to the Boys & Girls Club. A.M. never saw defendant and Jane alone in the master bedroom. Jane had once told him, however, that defendant had “raped” her.

Discussion

Defendant claims defense counsel labored under conflicts of interest between defendant’s interests and those of counsel and counsel’s investigator, counsel rendered ineffective assistance of counsel in failing to recognize and deal adequately with the conflicts, and the trial court failed to protect his rights in the face of the conflicts, all in violation of the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution. He also discerns violations of his constitutional rights to compulsory process under the Fourteenth Amendment and to a fair trial, evidently under the Fifth and Fourteenth Amendments and article I, section 15 of the California Constitution.

We agree that the prosecutor precipitated a serious conflict of interest between defendant and defense counsel, a conflict the trial court did little to try to remedy and that defense counsel could have done more to address, and would reverse the judgment, except that Doolin, supra, 45 Cal.4th 390, compels us to affirm it. On direct appeal, defendant’s other claims are without merit, because the record cannot supply an adequate factual predicate for them.

“It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.” (People v. Rundle (2008) 43 Cal.4th 76, 168 [74 Cal.Rptr.3d 454, 180 P.3d 224] (Rundle), overruled on another point in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

The relevant events unfolded just before the bench trial began. Defense counsel informed the trial court that the prosecutor was threatening to prosecute a defense investigator. The prosecutor did not dispute this and made statements insinuating that defense counsel could be prosecuted too.

The imbroglio arose because the prosecutor surmised that (1) it was unlawful for defense counsel to retain an investigator, Mark Zorne, who had not been duly licensed by the state and for Zorne to serve as an investigator without the proper credentials, and (2) it was unlawful for defense counsel to have provided Jane Doe’s true name to Zorne and for Zorne to have uttered that name to Jane Doe herself during his interview with her, which he recorded and in which she recanted her accusations.

In a closed proceeding, the trial court summarized what was evidently an unreported earlier conversation; “Something came up this morning and there was an objection to Mr. Klopfenstein [(defense counsel)] designating . . . [¶]... H] Mr. Zorne as his investigating officer. The objection is based upon the fact that he is not a licensed investigator. [¶]... [T]he issue also came up that the prosecutor was concerned that Mr. Zorne’s interview of the victim on behalf of Mr. Klopfenstein perhaps violated some law involving licensing for investigators.”

Defense counsel said the prosecutor “said ... he was going to be prosecuting Mr. Zorne, not just concerns. I think the record was pretty clear in that area. [ [as of Jan. 13, 2015].)

In addition, Beets is not immune from criticism. The Texas Court of Criminal Appeals disapproved of Beets. “The majority in Beets states plainly that ‘The Supreme Court has not expanded Cuyler’s presumed prejudice standard beyond cases involving multiple representation.’ The most obvious response to that observation, however, is that the Supreme Court has never expressly limited Cuyler to such cases either. Indeed, we found that, the only time the Supreme Court even considered the question of whether Cuyler is limited to a particular type of conflict, it concluded that the issue was ‘an open question.’ ” (Acosta v. State (Tex.Crim.App. 2007) 233 S.W.3d 349, 354, fns. omitted.) Acosta went on to say: “While Cuyler was in fact a case of multiple representation, that fact is always secondary to the primary issue in all conflict of interest cases: whether the conflict asserted actually resulted in ineffective assistance of counsel to the defendant. Beets, in evaluating a conflict between a lawyer’s self-interest and that of his client, concludes that Cuyler should apply only in the context of multiple representation because only in that context are the effects of breaching the duty of loyalty clear. We respectfully submit that the instant case, in which the appellant’s trial counsel actively represented the interests of a third party during the appellant’s trial, is a clear example of how the danger of ineffective assistance via a conflict of interest is not strictly limited to the codefendant context.” (Ibid., fns. omitted.)

Given that “cases are not authority for propositions not considered” (People v. Mills (2012) 55 Cal.4th 663, 680, fn. 12 [147 Cal.Rptr.3d 833, 286 P.3d 754]), it may be wondered why we do not simply declare that Doolin did not contemplate this situation and decline to follow it. The answer is the one we gave above: “If a precedent of this Court has direct application in a case ... the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (Rodriguez de Quijas v. Shearson/Am. Express, Inc., supra, 490 U.S. at p. 484.)

The reference to book deals refers to a dictum in Mickens in which the court worried (Mickens, supra, 535 U.S. at pp. 174-175) about the federal Courts of Appeals applying Cuyler “ ‘unblinkingly’ ” (id. at p. 174) to what may be termed everyday conflicts involving relatively anodyne financial or personal interests (ibid.). conflict and threatened to undermine his lawyer’s effectiveness.” (Id. at p. 674; see Cerro v. U.S. (7th Cir. 1989) 872 F.2d 780, 785 [expressing similar views].)

At this juncture it is useful to take note of certain California Supreme Court decisions that involved circumstances different from those present here:

In People v. Gonzales and Soliz (2011) 52 Cal.4th 254 [128 Cal.Rptr.3d 417, 256 P.3d 543], the circumstances were trivial compared to these: one defendant’s family had given clothing to defense counsel that, unknown to counsel, contained heroin. (Id. at p. 308.) The defendant argued, to an unconvinced California Supreme Court, that defense counsel could have feared prosecution for this unwitting conduct as a “ ‘remote’ ” (id. at p. 309) possibility, despite “the prosecution’s assurances to the judge that [counsel] bore no responsibility in the drug-smuggling incident” (id. at p. 310). Unsurprisingly, the court found this argument “strained.” (Ibid.)

In People v. Friend, supra, 47 Cal.4th 1, the Supreme Court found a conflict of interest but concluded, “there was no possibility of great prejudice arising from the conflict nor was there any difficulty in assessing its detrimental effect.” (Id. at p. 46.) That was so because the conflict precluded defense counsel from cross-examining a prosecution witness with only one of 17 “criminal cases” (id. at p. 45) — she could and did impeach him with some or all of the other 16 (id. at p. 47) — and the boundaries of the conflict were well understood during a hearing on it (see id. at p. 45).

In Rundle, supra, 43 Cal.4th 76, “Defendant does not contend that the conflict affected his counsel’s performance related to their conduct of the trial itself, apart from counsel’s reaction to [a] juror misconduct issue .... As a result, the complained-of shortcomings of counsel in this case are fundamentally different from those found in typical conflict-of-interest situations. In most conflict cases, in which a conflict of interest affected the presentation of the defense case to the jury, the problem in assessing prejudice to the outcome of the proceeding has arisen from the reviewing court’s difficulty in evaluating how extensively the conflict affected counsel’s choices and, ultimately, in predicting how the presence or absence of certain evidence or arguments at trial would have affected the jury’s deliberations and verdict.” (Id. at p. 173.)

Finally, in People v. Roldan, supra, 35 Cal.4th 646, overruled on another point in Doolin, supra, 45 Cal.4th at page 421, footnote 22, defense counsel declared a conflict because the defendant, on trial for his life, was threatening counsel’s life. (Roldan, supra, at pp. 671-673.) The court held that because the appellant manufactured the conflict, and appeared to be doing so as part of disruptive “elements of his effort to delay the inevitable” (id. at p. 676), he could not complain on appeal. “There is something perverse in this argument. . . ,” the Roldan court stated of the appellant’s claim, “for although defendant unquestionably was entitled to the effective assistance of a conflict-free attorney, defendant’s own behavior created the alleged

Some cases present distinguishing circumstances and arrive at a different result. (U.S. v. Montana (7th Cir. 1999) 199 F.3d 947, 949 [it “is pure speculation” that counsel “pulled his punches”]; Taylor v. U.S. (6th Cir. 1993) 985 F.2d 844, 846 (per curiam) [“the investigation involving defense counsel was not conducted by the same office that was prosecuting [the defendant]”].) We have also found cases that failed to afford relief under circumstances we would find questionable. (U.S. v. Jones (2d Cir. 1990) 900 F.2d 512, 519 [“the prosecutor’s hysterics were without foundation in fact or law” and “Allegations of wrongdoing alone cannot rise to the level of an actual conflict unless the charges have some foundation.”]; see U.S. v. Balzano (7th Cir. 1990) 916 F.2d 1273, 1293 [counsel’s criminal problems unrelated to the defendant’s]; Cerro v. U.S., supra, 872 F.2d at p. 786 [Defendant failed to show an actual conflict, in part because “There was no danger that the authorities would learn something novel about [counsel’s] possible involvement in criminal activities. . . .”].) There could be others we have not located that also would not agree with part II of our discussion. The law is, however, not a popularity contest; the question is which standard of prejudice is better applied in these circumstances, not which is more popularly applied, although the great weight of authority that we have found favors Cuyler.