People v. Simmons

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BYRON SIMMONS, Defendant and Appellant.

C092973

California Court of Appeals, Third District, Placer

May 6, 2022

NOT TO BE PUBLISHED

Super Ct. No. 62-167291

HOCH J.

Defendant Michael Byron Simmons was tried by jury and convicted of one count of committing a lewd or lascivious act on his niece and goddaughter, B., a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a). The trial court sentenced defendant to serve the middle term of six years in state prison and imposed other orders.

The central issues in this appeal involve a pretext phone call between B.'s father and defendant, in which defendant admitted touching the child's vagina on one occasion. Defendant contends: (1) his trial counsel provided constitutionally deficient assistance by failing to move to exclude defendant's admission during the phone call because it was involuntarily made as a result of coercion; and (2) the trial court prejudicially abused its discretion and violated defendant's federal constitutional rights by excluding testimony from a defense psychologist on the subject of defendant's mental processes, particularly his anxiety, as that was relevant to the jury's assessment of the statements he made during the pretext phone call. Defendant's remaining appellate contentions involve: (3) additional claims of ineffective assistance of trial counsel; and (4) an assertion of cumulative prejudice.

We affirm. As we explain, defendant's trial counsel made a rational tactical decision not to object to the admission of the pretext phone call. Defendant's assertion of ineffective assistance of counsel fails for that reason regardless of whether an objection to its admission would have been successful. Assuming, without deciding, that the trial court abused its discretion by excluding the proffered expert testimony, this did not violate defendant's constitutional rights and there is no reasonable likelihood of a more favorable result had this testimony been admitted. Defendant's additional claims of ineffective assistance of counsel fail for reasons explained later in this opinion. Finally, defendant's assertion of cumulative prejudice also fails.

FACTS

Defendant married B.'s aunt in 2012, when B. was five years old but the family knew defendant for B.'s entire life. He was chosen to be her godfather because, as B.'s mother put it, "my daughter loved him very much. There was a special bond between them. He would always hold her when she was little, and he's always had a special affection towards her."

In January 2019, B. lived with her parents and four sisters in Olivehurst. She was 11 years old and would turn 12 the following month. Defendant, B.'s aunt, and their three children lived in Grass Valley, about 30 miles to the east.

With the exception of a four-month period of time immediately preceding the events giving rise to defendant's conviction in this case, during which B.'s mother and aunt were not on speaking terms, defendant saw B. "once a month," if not "every two weeks." They often went to the movies and out to eat. Defendant also routinely bought her presents, such as candy and toys, "whatever she asked for." However, during the four-month time period noted above, they had not seen each other at all.

Contact between defendant and B. resumed after B.'s mother sent a text message to her sister inviting her and defendant to B.'s birthday party. Defendant then made plans to take his daughter, R., to see a children's movie at the Studio Movie Grill in Rocklin and called B.'s house to invite her to join them. After B. received permission to go from her mother, defendant told her that he would pick her up at around 3:30 p.m. on Saturday.

Defendant left his house in Grass Valley at about 2:30 p.m. to give himself plenty of time to drive to B.'s house in Olivehurst. Defendant's daughter, who was about five years old at the time, sat in a car seat in the back. B. sat in the front passenger seat. For some reason, rather than taking a direct route to the Studio Movie Grill, defendant backtracked east to Grass Valley, then drove south to Auburn and finally west to Rocklin. What would have been a 40-minute drive ended up taking about an hour and a half.

At the movie theater, B. intentionally sat next to R. instead of defendant. As she explained during her trial testimony, she was afraid defendant would touch her "private area" if she sat next to him, clarifying that this meant her vagina. B. testified that he had done so on multiple occasions during the previous two years, any time they went to a movie or out to eat together. During this particular trip to the movie theater, B. successfully avoided being touched during the movie.

After the movie, they planned to eat at a fast-food restaurant in Auburn. Back at the car, B. again sat in the front passenger seat and defendant, after securing R. into her car seat in the back, got into the driver's seat and placed his hand on B.'s thigh. He then moved his hand up her leg and touched her vagina beneath her pants and underwear as he drove. B. was scared and did not remember whether she told him to stop, but at some point he stopped touching her.

At the fast-food restaurant, defendant went through the drive-through and B. climbed into the back seat. Defendant then drove her home, again extending the drive considerably. Rather than taking a more direct route, he drove north to Grass Valley and then west to Olivehurst.

As mentioned, B. turned 12 in February 2019 and her mother invited defendant and B.'s aunt to her birthday party. The night before the party, after B.'s mother told her that they were coming, B. started crying and said she did not want defendant to be there. Her mother asked "why she was acting that way," but did not have time to talk to her about it. The next morning, before the party, B. told her mother that she did not want defendant to touch her or come near her at the party. When he arrived at the party, defendant gave B. a present in the kitchen, but she "threw the gift on the counter" and ran out of the kitchen. When B.'s mother scolded her to "behave" around her guests, B. said she did not invite them to the party. B.'s mother had never seen her act that way around defendant or anyone else. The next day, B.'s mother again asked her "why she was acting that way" towards defendant at the party. B. started crying and ran to her room. Later in the week, B. disclosed to her mother that defendant was touching her inappropriately.

In late February or early March, B.'s mother took her to a local medical clinic and told medical staff what B. had told her about the sexual abuse. That facility referred her to UC Davis Medical Center. B.'s mother took her there on March 6. B. disclosed the abuse to both medical staff and a clinical social worker in the emergency department, who reported the allegations to child protective services, who in turn filed a report with law enforcement in Yuba County.

During a subsequent forensic interview, B. again disclosed the abuse, specifically describing the incident in Rocklin. This caused the case to be forwarded to the Rocklin Police Department, where Detective Justin Infante orchestrated the pretext phone call between B.'s father and defendant that is central to the main issues raised in this appeal. We provide the details of this phone call during the discussion portion of this opinion. For now, we note that defendant initially denied abusing B., but eventually admitted touching her vagina, claiming he "only did it . . . once" and "just the outside." He also said he stopped going over to their house afterwards because he "was feelin' bad about it."

Defendant testified in his own defense and denied any abuse occurred. He claimed he made the statements noted above during the pretext phone call because he was afraid of B.'s father. According to defendant, B.'s father was "a very aggressive individual" and "an ex-boxer" who had previously claimed he "knew people in the cartels." Defendant claimed several statements made by B.'s father during the phone call were threats to physically harm defendant if he did not admit to touching B.'s vagina. These threats caused defendant to suffer an anxiety attack, and after several adamant denials, defendant decided to try to appease B.'s father by giving him an answer that defendant thought "he would accept as as a confession" without actually confessing to anything. According to defendant, when B.'s father was asking him to admit touching B.'s vagina, he said he "only did it . . . once" and "just the outside" because he thought B.'s father would think he was confessing, but in reality he was referring to having "touched her only one time in the vehicle which was to move her leg off of the gearshift, and that was on the outside of her leg . . . ."

Defendant was arrested the day after the pretext phone call and interviewed by Detective Infante. He maintained his innocence throughout the interview. We need not describe this interview in any detail. It will suffice to note that defendant, who initially claimed he did not remember going to the movies with B. on the day in question, did not mention either being afraid of B.'s father or touching the outside of B.'s leg to move it off of the gearshift.^[1]

DISCUSSION

I Central Ineffective Assistance Claim

Defendant did not object to the admission of the pretext phone call below, forfeiting a direct challenge to its admission in this appeal. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 78 (Quiroz).) Implicitly acknowledging this fact, defendant contends his trial counsel's failure to object amounted to ineffective assistance of counsel because a motion to exclude defenda...