IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
August 22, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RONALD MARION GUEST, DEFENDANT AND APPELLANT.
(Super. Ct. No. NCR77537)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Guest
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Ronald Marion Guest of indecent exposure. (Pen. Code, § 314, subd. 1.)*fn1 In a bifurcated proceeding, the jury found true allegations that he had suffered a 1994 lewd conduct conviction (§§ 288, subd. (a), 667, subds. (b)-(i)) and had served four prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to state prison for eight years, consisting of six years (twice the upper term) for the offense plus two years for prior prison terms. He was awarded 354 days' custody credit and 212 days' conduct credit and was ordered to pay a $600 restitution fine (§ 1202.4), a $600 restitution fine suspended unless parole is revoked (§ 1202.45), a $1,830 sex crime fine (§ 290.3, subd. (a)) including penalty assessments, and a $30 court security fee (§ 1465.8).*fn2
On November 17, 2008, at approximately 12:30 p.m., defendant walked naked in the second row of an olive orchard outside the City of Corning. The walk covered approximately 20 yards and lasted 45 seconds to one minute. During the walk, defendant had an unobstructed view of patrons, including women and children, at a safety rest stop on an interstate highway. As he walked, defendant looked toward the people at the rest stop and approached to within 10 to 15 yards of them.
Jeffrey Cook, a rest stop maintenance worker, observed defendant walking in the olive orchard. Cook watched defendant from a distance of about 30 yards. Cook then walked toward defendant as he continued walking. Defendant looked at Cook, who was talking on his cellular telephone. After looking at Cook, defendant first crouched down and then ran away.
The next day, Garret Fry drove to a field across from his residence. His truck headlights illuminated a person, crouching down in the field, whom Fry later identified as defendant. Fry approached defendant, who ran off and climbed over a fence. Viewing defendant from behind, Fry noticed that defendant was wearing only a shirt and shoes.
Fry contacted the sheriff's office. In response, a deputy went to defendant's residence and observed him in a nearby pasture. Defendant fled from the deputy who later found him hiding in some bushes. Defendant, now dressed in a jacket and boxer shorts, was arrested. A search of the jacket yielded petroleum jelly, a flashlight, and a nine-and-one-half inch vibrating replica penis.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending his trial counsel rendered ineffective assistance and asserting various other claims. We first consider the claims of ineffective assistance.
Defendant contends trial counsel was ineffective for having failed to call as a defense witness a woman who would have explained why he possessed the sexual items found in the search. Defendant previously raised this issue at a Marsden hearing during trial.*fn3 Trial counsel explained that her investigator had spoken to the woman who indicated she had never had a sexual relationship with defendant; thus, she could not explain why he had possessed the items in question. Calling the woman as a defense witness would have been futile; counsel was not ineffective for having failed to do so. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5; see generally People v. Avena (1996) 13 Cal.4th 394, 418.)
Defendant appears to contend trial counsel rendered ineffective assistance by failing to call two of his co-workers as witnesses. However, as he recognizes, one co-worker had indicated to counsel that defendant was a "freak"; the other had indicated that he was a "weirdo." Counsel explained at the Marsden hearing that she did not anticipate calling the co-workers because "they would not be beneficial to the case." No ineffective assistance appears.
In a related vein, defendant claims trial counsel was ineffective because, even though she would not call the witnesses, she herself resorted to using the words "weird" and "freak" during her summation. The record does not support this claim.
Trial counsel never used the word "freak" or the word "weird." She conceded that defendant was "strange," and that his conduct was "strange," "very unusual," and "not normal." However, counsel pointedly argued that defendant's conduct "certainly isn't lewd," and that he "wasn't doing any lewd act." Later, counsel argued that the evidence "doesn't mean [defendant] had any sexual intent. It just means he is strange and he does strange things. But what he did in that orchard is not a crime. It is very strange conduct."
Contrary to defendant's contention, there was nothing about this argument that "damaged [his] case." Counsel's remarks were tactically appropriate in light of the evidence presented and were not ineffective assistance.
Defendant contends he tried to discharge trial counsel for having advised him that, if he "left the state[,] that the D.A. would not try to get [him] back. That advice would have gotten [him] a new charge under [section] 290 registration laws that would have stuck." Trial counsel addressed this issue at the Marsden hearing. She advised defendant through his family that, had he chosen to remain in Arizona where he was then located, Tehama County officials "would not come after him and get him." Counsel clarified that she never suggested that defendant "flee or leave" California. Defendant later opted to return to California and was arrested. No ineffective assistance is shown.
Trial counsel was not ineffective for having failed to inform the jury that defendant had worked for the same employer for two years, maintained his own residence, paid his own rent, cared for his cat and dog, had incurred no parole violations for almost three years, and had been drug tested on the day he was seen in the nude. It is not reasonably probable that any of these facts, or all of them, could have produced a verdict more favorable to defendant. (See generally People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
We now consider defendant's remaining contentions of error. He writes it is his "strong opinion" that the sheriff's deputy who showed witness Cook a photographic array "circled [defendant's] picture himself or told [Cook] which picture to circle." Defendant identifies nothing in the record that supports his opinion; nor has our review revealed any such support. No error is shown.
Defendant "den[ies] the accusation" that anyone saw him naked. However, the jury verdict to the contrary is supported by substantial evidence. Defendant's mere denial does not warrant reversal of the judgment. (See, e.g., People v. Boyer (2006) 38 Cal.4th 412, 479-480.)
Defendant "question[s] the legitimacy" of witness Fry, because defendant's mother later determined that Fry does not reside where he claimed to reside during his testimony. This claim is founded upon matters outside of the appellate record and offers no basis to disturb the jury verdict.
Defendant's next claim, that the Tehama County Sheriff conspired with persons unknown to frame defendant in order to "get rid of" him and gain "notoriety for the then oncoming elections," similarly relies on matters outside of the appellate record and offers no basis to reverse the judgment.
Defendant surmises that, if several persons had observed him at the rest stop, "the sheriffs [sic] would have found other witnesses or 911 calls . . . ." However, the jury was instructed that "[n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant." The fact no further witnesses or 911 calls were shown by the evidence does not warrant reversal of the judgment.
Defendant claims "many members of the Jury panel" saw him being escorted in handcuffs prior to jury selection. He argues the panel "should have been dismissed because there was no way of knowing if any of the jury members had seen" defendant. The claim has no merit.
After the jury was selected, trial counsel stated that the previous day, deputies had taken defendant out of the courtroom in handcuffs; because the courtroom windows had not been blocked, defendant believed that some members of the jury had seen him in handcuffs. In brief testimony, defendant clarified that he had been escorted from the judge's chambers to the courthouse lobby and then upstairs to a holding cell. Prospective jurors looked through the courtroom windows into the lobby where they saw defendant.
The trial court called as its witness a Tehama County Sheriff's deputy who testified that he had viewed a fellow deputy escorting defendant out a courthouse door, across a hallway, and up some stairs. The deputy had observed defendant for seven to ten seconds. Defendant's hands appeared to be handcuffed behind him. One prospective juror was present in the court lobby when this escort occurred. The court later released this prospective juror from service. He was no longer on the jury panel at the time the court considered the issue.
Trial counsel requested a mistrial based on the testimony that jurors looked through the courtroom window and saw defendant in handcuffs. The court denied the request because there was no showing that defendant had been seen in handcuffs by anyone seated on the jury.
Defendant now complains that his trial counsel should have objected and "asked for a new jury panel to be convened." The complaint fails because trial counsel did object and twice requested a mistrial. However, her request was not successful.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: BUTZ , J. DUARTE , J.