Super. Ct. No. P08CRF0144
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Louis Paul Sota guilty of molesting his two daughters and niece. The court sentenced him to prison for 60 years to life plus 8 years. On appeal, he raises 11 contentions encompassing alleged constitutional violations, evidentiary errors, instructional errors, prosecutorial misconduct, and sentencing error. Finding no merit to these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's Molestation Of His Daughters
Defendant is the father of two of the victims: his older daughter, who was born in 1997 and was 11 at the time of trial, and his younger daughter, who was born in 2001 and was eight at the time of trial. The daughters were born during defendant's live-in relationship with their mother, which began in 1992. Defendant's relationship with the mother was marked by domestic violence. The allegations of the daughters' molestation came to light in 2005 when the daughters told a Child Protective Services' (CPS) worker defendant had been molesting them.
According to the older daughter, defendant inappropriately touched her for the first time when she was in kindergarten. It was evening in a tent that defendant had set up for the children in the house while their mother was at work. When the older daughter and defendant were alone, he took her nightgown off and put his "private spot" inside her "private spot." Defendant said he would kill her mother if she told anybody. Defendant had sex with the older daughter between four and nine more times, including in his recreational vehicle when they were parked outside a restaurant and in a campground.
The older daughter also saw defendant molesting the younger daughter on at least four occasions. On one occasion when the family was still living together and the children were watching television, defendant took the younger daughter into a bedroom and started "touching her" with his hands "[i]n her private part" and having her suck on his "[p]rivate part." Defendant had left the door open, so when the older daughter walked past the room, she could see what was going on inside. On two other occasions, the older daughter saw defendant again have the younger daughter "suck his private part." One time was when all three were in the house, and she saw defendant make the younger daughter suck his private part in their mother's bedroom. To encourage her, defendant told the younger daughter to "suck your ba-ba." A second time was in defendant's recreational vehicle in the bedroom compartment. The older daughter was on the couch or the driver's compartment "[c]rying . . . [f]or [her] little sister." Defendant would also make the younger daughter masturbate him. He would tell her, "pull your ba-ba so the milk will come out."
Defendant's Molestation Of His Niece
Defendant's niece was born in 1981 and was 27 at the time of trial. She is the daughter of defendant's older brother. When she was in third grade, defendant would sometimes come stay with her family for a couple of weeks at a time. Twice, during these visits, defendant came into her bedroom at night and forced her to have sex with him. He said that if she told anybody, she "wouldn't have a mommy and daddy anymore."
The niece first revealed the molestation to a counselor at age 16. She ultimately told her parents, and her father then told other members of their extended family what defendant had done. As a result, there was "a lot of conflict and problems . . . within [her] family." At one point, she tried to recant her allegations because she "wanted it to go away," but she "knew all along it was [defendant]."
Defendant's Molestation of The Niece's Aunt
The mother of defendant's niece had a younger sister who would come to stay with the niece's family during the summer. The niece's aunt was born in 1971 and was 37 at the time of trial. In 1987, she was celebrating her 16th birthday with family. Defendant was spending the weekend there as well. One night when the niece's aunt was asleep in the living room, she awakened to find defendant "laying next to [her], touching [her], fondling [her], and then he had taken [her] hand and tried to put [her] hand on his penis and do things." He told her, "'I'm so hard. I want you. I'm so horny.'" He asked her to touch his penis, saying, "'I'm going to teach you how.'" She was "very scared," and had "never been touched like that before." She pulled away and went to sleep in the niece's upstairs bedroom.
Counsel Was Not Ineffective For Failing To Object To Closing The Courtroom During The Testimony Of The CPS Workers During the testimony of two CPS workers, the court closed the courtroom to the public to prevent disclosing contents of confidential juvenile records on which part of their testimony was based. On appeal, defendant contends the closure violated his right to a public trial under the federal and state Constitutions. He further contends his counsel's purported objection, which was based on excluding the press, was sufficient to preserve the issue and, if it was not, his counsel was ineffective. As we explain, defense counsel did not preserve the issue for appeal and his counsel was not ineffective.
Factual And Procedural Background
The prosecutor and defense counsel both filed requests for disclosure of the minors' juvenile dependency case files related to the molestations here. Appointed counsel for the minors requested the court close the courtroom for the CPS workers' testimony to prevent confidential information about the minors' juvenile dependency files from being made public. The court asked, "Any counsel have any objection?" Defense counsel responded as follows: "The only issue, there's something called the shield law. I've dealt with that every once in a while when I subpoena Mountain Democrat reporters. Of course, the First Amendment proponents show up. There's something called the shield law somewhere." The deputy county counsel responded the court had the authority to issue appropriate protective orders. The court remarked, "So basically, if the courtroom is not closed, this information, which is protected . . . could be printed on the front page of the Mountain Democrat the next day." The deputy counsel responded, "Correct." The court ruled it would "issue that order, that when [the CPS workers] testify, other than necessary personnel, we'll close the courtroom."
The deputy county counsel pointed the court to the rule of court she believed allowed the court to close the courtroom. (See Cal. Rules of Court, rule 5.552(e)(8) ["The court may issue protective orders to accompany authorized disclosure, discovery, or access" to confidential juvenile case files].) The court stated, "It makes good sense."
Defense counsel stated, "Let me have just one second, Excuse me." The transcript then reflects "Discussion off the record." Thereafter, defense counsel stated, "Thank you, Your Honor."
When the day came for the CPS workers to testify, the court ordered the courtroom closed. The prosecutor "put on the record" she "checked in the hallway" and "there d[id]n't appear to be anybody from the media present or wanting to access presence to the courtroom." The prosecutor then asked if she could put the CPS workers on the stand now (thereby interrupting the testimony of a detective) because they had "traveled far." The court "assume[d] that's not a problem" and asked defense counsel. Defense counsel stated, "No, absolutely not." The prosecutor then called the CPS workers to testify in a closed courtroom.
Counsel Waived Any Objection To Closing The Courtroom
And Counsel Was Not Ineffective For So Doing
"The most basic rights of criminal defendants are . . . subject to waiver." (Peretz v. United States (1991) 501 U.S. 923, 936 [115 L.Ed.2d 808, 822].) This includes the right to a public trial. (Ibid.; Levine v. United States (1960) 362 U.S. 610, 619-620 [4 L.Ed.2d 989, 996-997].) Our Supreme Court has held that where the trial court closed the courtroom and defense counsel "did not object that these proceedings violated his right to a public trial," the "[f]ailure to object in these circumstances constitutes a waiver of the claim on appeal." (People v. Catlin (2001) 26 Cal.4th 81, 161.)
Catlin applies here. When the court solicited objections to closing the courtroom, defense counsel did not state that defendant's right to a public trial was being violated. He mentioned only "something called the shield law," which he stated arose "every once in a while" when he subpoenaed local newspaper reporters. The shield law does not implicate a defendant's right to a public trial. That law is a constitutional provision allowing a reporter to refuse to disclose the source of any information procured while employed as a reporter without being adjudged in contempt of court. (Cal. Const., art. I, § 2, subd. (b).) Defense counsel's reference to the shield law was not an objection to closing the courtroom.
Defense counsel, however, was not deficient for failing to object. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693 [first prong of an ineffective assistance of counsel analysis is proof that counsel's performance was deficient].) When the court and the deputy county counsel were discussing closing the courtroom, the court noted that if it did not do so, information in the minors' dependency files "which is protected . . . could be printed on the front page of the Mountain Democrat the next day." The deputy counsel responded, "Correct." This information included reports by the minors that defendant had molested them. Defense counsel reasonably could have decided it was detrimental to have these allegations printed in the newspaper. In fact, a fair inference can be made that defense counsel discussed the issue of the court closure with defendant based on the off-the-record conversation counsel had just after the court noted that it made "good sense" to close the courtroom. The reasonable tactical decision not to object in this circumstance defeats defendant's ineffective assistance argument. (See People v. Frye (1998) 18 Cal.4th 894, 979-980 [counsel's performance is not deficient if his action could be deemed a reasonable tactical decision].)
Admission Of The Prior Act Evidence
To Show Propensity To Commit ...