IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 2, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KEITH LYNN DIX, DEFENDANT AND APPELLANT.
Santa Clara County Super. Ct. No. CC807553
The opinion of the court was delivered by: Rushing, P.J.
P. v. Dix CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Keith Lynn Dix was sentenced to 30 years to life based upon testimony that he molested two prepubescent neighbor girls. On appeal he contends that the evidence was insufficient to support the judgment, that the court stated insufficient reasons for consecutive sentences, and that this court erred by denying two requests for expert witness fees on appeal. We find no error, and affirm the judgment.
Defendant was charged by information with (1) a lewd and lascivious act on K.D., a child under 14, in violation of Penal Code section 288, subdivision (a) (§ 288(a)); (2) a lewd and lascivious act on S.D., a child under 14, in violation of section 288(a); (3) a second such act on S.D.; (4) a third such act on S.D.; and (5) attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (b)(1).*fn2
Defendant waived a jury and the case was tried to the court. At trial it was established that during the time in question, defendant lived in a studio apartment in a large house occupied by K.D., S.D., their mother, and several extended family members. He testified that he was living on disability due to chronic nerve damage that made him unable to feel his legs, back, or feet "like a normal person would." The girls often visited his apartment to watch TV. He sometimes babysat them and their brother, R.D. According to K.D., on one occasion while she was six, when she was watching cartoons with defendant, he asked her to sit in his lap. When she did so, he touched her "lady part" with his hand. He reached under her pants but over her underwear. At her sister's urging she reported the incident to their mother. Her mother did not believe her and spanked her for lying. She did sometimes lie to her mother about "[l]ittle stuff." This incident formed the foundation for Count 1 of the information.
S.D. testified about two episodes when she was nine. The first took place while she was watching a cartoon on a television in a garage or storage area. Defendant had been working on something in the same area. At some point he sat on the chair with her and asked her to sit in his lap.*fn3 He touched her on her lady part. He put his hand inside her underwear and his fingers inside her private area. She did not tell her mother what had happened. This incident formed the basis for Count 2 of the information.
S.D. testified that a few days later she walked into a bathroom where defendant was working on an air vent. While sitting on the side of the bathtub with her in his lap, defendant put his fingers inside her private lady part. This formed the basis for Count 3.
Immediately after this incident, S.D. testified, defendant said that he needed to use the toilet. She saw him take out "[h]is lower half" and go to the bathroom. At some point he took her hand. At trial she did not recall having told a police officer or having testified that he grabbed her hand and tried to put it on his private part. However, she had testified at the preliminary hearing that after defendant finished urinating, and after wiping himself with tissue, he asked her to touch his part. When she said no, he "tried to force [her]" by grabbing her hand and trying to pull it toward his part. She pulled her hand away. It happened three times. She never touched his part or got close to doing so. This formed the basis for Count4.
Defendant testified that on "[t]he day the girls here are saying this here happened," he had frightened them by grabbing the arm of their brother R.D., whom defendant considered a "smart ass" and who had been calling the girls "pussies" and riding his bicycle past defendant's residence in defiance of directives from defendant. After this "big incident" the girls "[f]or a little bit acted different, but then they acted the same."
Defendant linked K.D.'s testimony to an occasion when she was visiting him in the company of her deaf uncle. At some point during the visit, K.D. sat on defendant's legs and put his hand on her knee. Her uncle had apparently come to use the toilet, but it was not immediately accessible because defendant had placed a stereo there pending repairs. When he rose to move it, the chair slid on the tile floor, and defendant fell. In the course of the fall, his hand "hit" K.D. somewhere; he didn't know where, and had told an officer that he "could have hit her anywhere." He acknowledged that although he had described this incident to officers, he had not previously mentioned that the uncle was present.
As to S.D., defendant testified that both the garage and bathroom incidents occurred on "the same day that I grabbed ahold of" her brother. S.D. did sit on his lap that day, but he did not touch her private parts or reach under her jeans. She sat on his lap a couple of times during the time they were acquainted. As to the bathroom incident he testified that he and S.D. were working on a heater vent together when he had to go to the bathroom. He asked S.D. to leave and she did so, closing the door. She never saw his penis and he never tried to get her to touch it.
Defendant's daughter testified that although her parents had divorced when she was about four, and she had seen little if anything of defendant for several years thereafter, he had moved back into her mother's home for about three years when she was about nine or 10. He never acted inappropriately around her. She considered him "a person who tells the truth."
Defendant's ex-wife testified to similar effect as her daughter, adding that defendant was their daughter's primary caretaker until they were divorced. His interactions with other children appeared normal. When she ran a residential day care facility defendant helped her with the children, and she never saw him act inappropriately. During their separation she had felt compelled to get a restraining order against defendant based on what she considered harassing behavior. During the three years the order remained in place, defendant complied with it. She considered defendant a "truth-telling person."
The trial court found defendant guilty on Counts 1, 2, 3, and 4, and sentenced him to an aggregate term of 30 years to life. This timely appeal followed.
I. Sufficiency of Evidence
The sole argument in defendant's opening brief is that the evidence was insufficient to establish his guilt. This requires us to determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) In addressing that question, we " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Kelly (2007) 42 Cal.4th 763, 787-788, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
Although defendant challenges the conviction as to both girls, he singles out the charge concerning K.D. for particular attention, asking us to conclude that "no reasonable juror could be convinced beyond a reasonable doubt that Appellant molested [K.D.], as alleged in Count 1." Defendant contends that her testimony did not furnish reasonable, credible, and solid evidence because it was "remarkably similar" to her sister's account, it was "tainted" by knowledge of her sister's report, K.D. admitted that she sometimes lied, defendant credibly denied the account, and two witnesses attested to defendant's truthfulness and appropriate behavior around children. As to S.D., defendant asserts that her testimony was "littered with her failure to remember salient details of the alleged molests." Finally, he asserts that his testimony established a motive for both girls to fabricate their claims, i.e., his mistreatment, as they would see it, of their brother.
Having carefully reviewed the trial transcript, the preliminary hearing transcript, and a video recording of a police interview of K.D., we cannot declare as a matter of law that the statements and testimony of K.D. and S.D. lacked sufficient credibility to enable the trial judge to find defendant guilty beyond a reasonable doubt. To be sure, there was some similarity between the incident described by K.D. and two of those described by S.D. All three involved inappropriate touching while the witness sat in defendant's lap. In two of the three, the touching occurred while the girls were watching cartoons on television. But these similarities hardly qualify as "remarkabl[e]." Nor was the trial court obliged to find K.D.'s testimony irreparably "tainted" by exposure to her sister's report. Her admission that she sometimes lied certainly provided a basis on which the court might doubt her veracity, but the forthrightness of the admission could just as easily be given a contrary tendency. Indeed her persistence on this subject after having been punished for her initial report might furnish a reasonable basis to infer trustworthiness.
Nor do we see anything in defendant's testimony that would oblige a reasonable finder of fact to doubt the veracity of the girl's reports. On the contrary, defendant gave an account that, particularly as to K.D., the court was entitled to find unworthy of belief. Some of the peculiarities in his testimony may simply reflect an obstreperous personality, which is hardly evidence of guilt, but others present classic grounds to view his account with suspicion--most obviously, his belated disclosure that K.D.'s uncle was present when the underlying event occurred. This assertion apparently was not made until trial, depriving the prosecution of the opportunity to determine the uncle's version of events.*fn4
It is not our obligation or our proper function to analyze in excruciating detail every possible permutation by which the finder of fact might rationally find the defendant guilty beyond a reasonable doubt. It is instead the defendant's burden on appeal to affirmatively demonstrate the insufficiency of the evidence, which is to say, the intrinsic illogic of the reasoning on which the evaluation of the evidence supporting the judgment of conviction must necessarily rest. (See People v. Hamlin (2009) 170 Cal.App.4th 1412, 1430.) Defendant has not carried that burden on this appeal. We must therefore reject his contention that substantial evidence does not support the judgment.
II. Statement of Reasons
Defendant argues in a supplemental brief that the trial court stated insufficient reasons to sustain the imposition of two consecutive sentences of 15 years to life.*fn5 When prompted to state its reasons, the trial court stated, "Based upon the trial, the traumatization of the victims, as well as the state of the defendant's testimony, the Court believes that is appropriate."
The thrust of defendant's argument is really not so much that this was an insufficient specification of reasons as that the reasons thus given were insufficient to sustain the choice made. Thus he challenges the first stated reason on the ground that "the alleged 'traumatization of the victims' was not supported by the evidence." It is true that the cold record on appeal contains no unequivocal evidence that the girls were traumatized by defendant's conduct. A reasonable inference, however, is that they exhibited some form of distress on the witness stand. At the conclusion of trial, in its oral explanation for its finding of guilt, the court observed that "both witnesses, given their testimony and their physical appearances, appear to have been traumatized by the alleged offense." The trial court is entitled to rely on its own direct observations in the courtroom. If some doubt existed concerning the basis for this observation, the only way to preserve the point for appeal was to seek further explanation from the trial court on the record. In the absence of such a request, we have no choice but to presume that the courtroom demeanor of the witnesses fully supported the court's statement. We reject defendant's suggestion that the court's finding is unwarranted in the absence of an "emotional breakdown" on the stand.
With respect to the court's second stated reason, defendant asserts that "it is unclear what 'the state of the defendant's testimony' means." It is somewhat regrettable that the court did not spell this out but it seems quite clear to us that the court meant that defendant had willfully lied on the stand. Defendant quotes the holding in People v. Howard (1993) 17 Cal.App.4th 999, 1004, that such a belief cannot furnish grounds for enhanced punishment without "on-the-record findings encompassing all the elements of a perjury violation." In that case, however, the court found a violation of this requirement to have been harmless error because the trial did not present "a situation in which the defendant might have given inaccurate testimony 'due to confusion, mistake or faulty memory' or testified 'to matters such as lack of capacity, insanity, duress or self-defense.' " (Id. at p. 1005, quoting United States v. Dunnigan (1993) 507 U.S. 87, 94, 95.) Instead, the court continued, "The sole issue for the jury to decide was whether [the victim] or [the defendant] testified falsely. [The victim] claimed [the defendant] demanded and then forced her to perform an act of oral copulation in exchange for giving her a ride; [the defendant] claimed [the victim] offered and then willingly performed the act. Someone was lying. . . . The judge correctly observed that in convicting [the defendant], the jury necessarily decided he was the liar. The court's own conclusion that there was perjury likewise could only have been based on a finding that [he] had been untruthful. There was no other basis for rejecting his testimony." (People v. Howard, supra, 17 Cal.App.4th at p. 1005.)
Here too either the victims were testifying falsely, or defendant was. If the latter, as the trial court necessarily found, then defendant was committing perjury, i.e., he knew that his testimony was false. The court's failure to recite the elements of the offense and find each of them proven was harmless by any standard.
III. Denial of Expert Fees
Defendant contends that this court erred in denying two requests by him for expert witness fees to enable appellate counsel to consult an expert on child witness suggestibility and forensic interviewing techniques. The intended purpose of the consultation was to advance an argument in support of the associated petition for writ of habeas corpus to the effect that trial counsel was ineffective for failing to investigate and present a defense on the premise that K.D.'s testimony was the product of suggestion, first from exposure to S.D.'s report and second from the improper interviewing techniques reflected in the video recording of K.D.'s forensic interview by Detective Pham. Such an expert, argues counsel, could have "educated the trier of fact as to factors by which to assess the unreliability of [K.D.]'s testimony in this case."
The question on appeal from a judgment of conviction is whether the trial court committed reversible error. An appellate brief is not a suitable vehicle for seeking reconsideration of an order made by the reviewing court. Indeed the supposed error here could have no effect on the present appeal; it is material only in the context of the associated petition for habeas corpus, which we deny by separate order. We note that in her declaration supporting the petition, counsel has herself identified at some length numerous supposed deficiencies in the interview of K.D. that she believes could have supported a defense based on expert testimony. As she herself there writes, the absence of an expert declaration was "not reason to deny [the] petition" because a petition for habeas corpus is sufficient to require relief if it "states fully and with particularity the facts on which relief is sought . . . and th[o]se facts state a prima facie case for relief." The difficulty here was not in the first requirement, but in the second.
The judgment is affirmed.