THE PEOPLE, Plaintiff and Respondent, v. DARRELL RAVAN SLAPE, Defendant and Appellant.
A136669
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
July 30, 2014
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR083870S)
A. Factual Background
Defendant committed his crimes against two victims, Jane Doe One and Jane Doe Two, while giving them massages at his business.2
Doe One had injured her psoas muscle,3 which caused her pain from her lower back down to her thigh, and in 2007 was referred to Back in Action (or Healthy Life Alternatives), a business owned by defendant. During her first appointment, defendant told her he would give her a massage, and directed her to undress. He massaged the inside of her upper thighs as she lay on her back, and his hand brushed against her genitals a couple of times. He suddenly put his fingers inside her vagina, directly onto the area that was painful, and she was immediately in pain. A female physical therapist had performed internal massage of the knots inside Doe One’s vagina in the past, but she had not given defendant permission to do so.
Defendant told Doe One to lie on her stomach and told her to lift her hips off the table. He again inserted his fingers into her vagina, causing her to have an orgasm. He told her to lie on her back again, asked her if he could massage her breasts, and did so. After the massage, Doe One tried to behave normally. She wrote a check to pay for the massage, made more appointments, and left. She was upset afterward, discussed the matter with her husband and pastor, and reported the incident to the police.
Jane Doe Two was a massage therapist. She sought treatment for back problems in 2009, and defendant told her that since her insurance would not pay for his services, she could use some of his business’s equipment if she gave him massages in return. After they spoke in his office, he told her he had a massage certificate and suggested they trade half-hour massages. While defendant was massaging Doe Two, he asked if she knew where her first “chakra” was. She said she did not, and he slipped his hand under the sheet covering her and under her underwear, and put his hand and finger at the opening of her vagina. He asked her to put her hand to his other hand, and asked if she could feel the vibration between them. She was upset, but after the massage she was afraid defendant might have locked the door or that he might pursue her if she tried to leave, and she decided to give him a massage before leaving. As she did so, he told her he wanted her to work on his chakra, took her hand, and placed it on his perineum. Doe Two told him she was not comfortable with that, and he asked her to continue massaging him. After the massage, Doe Two made more appointments with defendant because she was frightened that he would lock her up if he knew she was uncomfortable. She later reported the matter to the police.
Michael Drew, who had taught defendant massage therapy in 1996, testified that he taught his students that it is not appropriate to touch a client’s genitals or massage a woman’s breasts. However, internal or pelvic massage could be used as part of “trigger
Drew testified on cross-examination that there can be trigger points in the perineal area. He also testified that it was possible that if a massage therapist activated a nerve in the lower spine area, a sensation could be felt in the genital area, and that some of the nerves that run to the genital area might run through the psoas muscle. If a cramped muscle was released, the client could feel both painful and pleasurable sensations in the genitals. A client who was having referred sensation would feel it both where the pressure was applied and in the area to which the sensation was referred.
Janette Johnson, a certified massage therapist and massage therapy instructor, testified for the People as an expert in massage therapy and professional standards of conduct. On cross-examination, she testified that when pressure was applied to a “trigger point,” sensation could be referred to another site. When a muscle in the inner thigh area or perineum was activated, referred pain could be felt in the genitals.
M.G. testified that she received massage therapy from defendant in 1998, that he asked her to disrobe completely, and that over time, he focused his massages more on her crotch area and her breasts. On several occasions, as he worked on pressure points near her pubic area, he “hit” her genitals. After each massage, he would give her a hug in order to “crack [her] back,” and on two occasions he kissed her.
Defendant testified in his own defense. He testified that he performed trigger point therapy on Doe One, and that it could be painful. He found trigger points in her right hip area, and “relieved the entrapment that was preventing circulation of the neuromuscular portion of her hip.” When an entrapment was released, the client could feel sensations throughout the body. The psoas muscle encompassed the vagina, and when it was released, the client could experience sensation in the genitalia, because
Defendant testified that Doe Two told him she was a massage therapist and that they agreed to trade massages. He said he was within a few inches of her genitals as he was massaging her, but denied touching them. He said Doe Two had asked for “chakra infusion,” but that he was unable to “get to” chakra number one, located on the perineum, because of her body weight, so he went to chakra number two, just above the navel.
Defendant also testified that as part of the therapy he received for the effects of a broken back, a massage therapist regularly massaged his perineum. When Doe Two was massaging him, he placed her hand on his perineum.
B. Procedural History
As to Doe One, the jury found defendant had committed the charged crimes of sexual penetration by a foreign object of a victim unconscious of the nature of the act (
The jury rendered its verdicts on May 29, 2012, and the trial court initially set the sentencing hearing for August 3, 2012. Defendant filed a substitution of attorney on July 6, 2012, substituting Duncan James for his trial counsel, Jerold Schultz. Shortly thereafter, defendant filed a motion to continue the judgment and sentencing, supported by James’s declaration that he needed additional time to review the trial transcripts in order to determine whether there were grounds for a motion for a new trial. On July 25, 2012, the trial court continued the sentencing hearing until August 15. Defendant filed
On August 10, 2012, defendant filed a third motion to continue the judgment and sentencing, on the ground that his new counsel had not yet received all the trial transcripts and that he needed more time to prepare expert witness declarations to support his new trial motion. An assigned judge heard the motion on August 17 and denied it without prejudice.
Defendant filed a fourth motion to continue the judgment and sentencing and motion for new trial, stating that he had received all but one of the trial transcripts, that his counsel needed time to read them in order to prepare a motion for new trial, and that he needed time to prepare expert declarations. He asked for a 60-day continuance. At the August 24, 2012 hearing on the motion, the trial court granted a continuance until September 14, 2012, and indicated again that it would not allow live testimony at the hearing on the motion for new trial.
Defendant filed his motion for a new trial on August 24, 2012. The motion was made on the grounds that defendant was unable to hear the trial properly and therefore could not participate in his defense, that his trial counsel rendered ineffective assistance by (1) not concerning himself with defendant’s inability to hear, (2) not filing a points and authorities on the effects of spina bifida, a disease Doe Two suffered from, and (3) failing to advocate properly for the admission of the testimony of an expert witness, Dr. John Podboy, and that the lack of Dr. Podboy’s testimony deprived him of a fair trial. Defendant submitted an expanded memorandum of points and authorities and additional evidence in support of the motion before the September 14 hearing. The expanded memorandum of points and authorities argued in addition that trial counsel rendered ineffective assistance in that he failed to advocate adequately for the admissibility of the
At the hearing on the motion for a new trial, defendant unsuccessfully renewed his request to subpoena his trial counsel, Schultz, to testify at the hearing.5 The trial court denied the new trial motion. The judge noted that defendant had received accommodations for his hearing disability: he had the use of a headset, and he was given the use of a computer with a “realtime feed” from the court reporter so he could follow the proceedings as they occurred. The judge stated, “Now, throughout the trial, I was well aware of Mr. Slape’s stated hearing deficiencies, and being so aware and advised, I did purposely and intentionally throughout the proceeding observe Mr. Slape; and I had a direct view of Mr. Slape at the table throughout the proceedings, and viewing him as I did and again emphasizing ‘purposely and intentionally’ regarding the hearing issue, I saw Mr. Slape viewing the realtime reporting, and he appeared to be, to my observation, reading along with the realtime.” The judge also noted that he had also seen defendant using the headset on occasion, and that he “would look at the examiners, and he would act—nod and act in conformance with the questions and answers. [¶] So I had absolutely no belief that Mr. Slape was not fully participating in the proceedings throughout.” As to the testimony of Dr. Podboy, the court noted that trial counsel had been “persistent” in
The trial court denied probation and sentenced defendant to a six-year term for count one, an additional one-year term for count two, and a concurrent 180-day term for count three, for a total term of seven years.
II. DISCUSSION
A. Exclusion of Evidence
Defendant contends the trial court abused its discretion in excluding evidence by two proposed experts, Dr. Podboy, a clinical and forensic psychologist, and Dr. Harry Friedman, a doctor of osteopathy.
1. Background
Defendant sought to introduce the testimony of Dr. Podboy at trial on “the issue of perception and memory as affected by prior trauma.” According to defense counsel’s declaration, the expert testimony would “inform the jury of various psychological factors that affect perception and the reliability of memory.” This included an explanation that “current perceptions can be affected by psychological experiences at the time of the event,” and that “[m]emory of current perceptions will be influenced by intrusive past feelings regarding similar events.” The expert would also testify that massage could cause flashbacks of memories of past sexual assaults and a person might confuse memories and past and current events. Dr. Podboy was also expected to testify that trigger point massage causes referred pain, and that trigger points “usually send their pain to some other site.”
It appears that both Doe One and Doe Two had suffered sexual assault in the past. In argument to the trial court, defense counsel described the nature of Dr. Podboy’s anticipated evidence about Doe One as follows: “We need testimony that posttraumatic stress sufferers can relive these past memories and can have confusion with these memories. [¶] Also that’s going to be clear that she was in a great deal of pain, and I think we need evidence that stressors such as pain can cause the memory and the mind to relive these events that are associated with this pain, and we need expert opinion
Defendant sought to introduce Dr. Friedman’s testimony “regarding referred sensation in the massage experience from trigger-point massage.” His counsel explained that referred sensation meant that “a touching in one part of the body will cause a sensation in another part of the body.”
The court excluded the testimony of Dr. Podboy and Dr. Friedman, reasoning that the question of whether people can misperceive events was within the province of the jury and was not an appropriate subject of expert testimony. The court also concluded that a theory that massage released past memories was “a, quite frankly, stretch,” but told defense counsel each of the victims could be questioned about how other massages had affected them.
During the court’s ruling, defense counsel twice tried to present further argument about the admissibility of Dr. Podboy’s testimony, but the trial court refused to hear it. Defense counsel again raised the issue of whether expert testimony on referred sensation would be allowed, and the trial court ruled it inadmissible, stating it was “a stretch for . . . expert testimony.”
“[E]xpert psychiatric testimony may be admissible to impeach the credibility of a prosecution witness where the witness’ mental or emotional condition may affect the ability of the witness to tell the truth. The admissibility of such testimony rests within the discretion of the trial court. Generally, however, attempts to impeach a prosecution witness by expert psychiatric testimony have been rejected [citations], except in certain sex offense cases.” (People v. Cooks (1983) 141 Cal.App.3d 224, 302 (Cooks), italics added.)6 As our high court has explained, “there is a ‘judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony. [Citations.] California courts have viewed such examinations with disfavor because ” ‘[a] psychiatrist’s testimony on the credibility of a witness may involve many dangers: the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify the issues; the testimony may be distracting, time consuming and costly.’ ” ’ ” (People v. Chatman (2006) 38 Cal.4th 344, 375–376 (Chatman), italics added; see also People v. Alcala (1992) 4 Cal.4th 742, 781, People v. Marshall (1996) 13 Cal.4th 799, 835 (Marshall)).
In excluding the proffered expert testimony of Dr. Podboy, the trial court relied explicitly on the rule of Chatman, Marshall, and Cooks that attempts to impeach witnesses through psychiatric testimony are disfavored. We see no abuse of discretion in this ruling. Dr. Podboy had no personal knowledge of either Doe One or Doe Two, and
Nor do we see any abuse of discretion in excluding the evidence of Dr. Friedman. In any case, even if he should have been allowed to testify about referred sensation, defendant was able to elicit testimony on this subject when cross-examining two of the People’s own witnesses, as well as to present it in his own testimony. Defendant has not shown he was prejudiced by the trial court’s ruling.
B. Ineffective Assistance of Counsel During Trial
Defendant contends he was deprived of effective assistance of counsel through his attorney’s failure to call or effectively interview Dr. Podboy and Dr. Friedman. In support of defendant’s motion for a new trial, Dr. Podboy stated in a declaration that defendant’s trial counsel appeared to have little knowledge of the psychological histories of the victims, that he did not show interest when Dr. Podboy suggested he investigate spina bifida, and that he did not appear to have read the research materials provided by Marsha Yates, a friend who was helping defendant in the case. Yates submitted a declaration stating that trial counsel did not seem aware of the issues related to spina bifida, that he said Podboy was “tainted” as a witness, and that he had not heard defendant’s version of events. Dr. Friedman stated in his declaration that he spoke with trial counsel once on the phone and received correspondence from him, but otherwise had little contact with him about the details of his proposed testimony.
“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result.” (People v. Dennis (1998) 17 Cal.4th 468, 540.) “A court must indulge a strong
Defendant has not met his burden to show his counsel’s failure to inquire further of the proposed expert witnesses or to call them at trial prejudiced him. Trial counsel adequately informed the trial court of the substance of Dr. Podboy’s proposed testimony, and argued vigorously for its admission. Based on its own analysis of the law, the trial court ruled the evidence inadmissible. Trial counsel also explained that Dr. Friedman would testify about referred sensation. It would be pure speculation to conclude that the trial court would have admitted the testimony of either proposed expert if trial counsel had prepared more thoroughly. Moreover, as we have noted, defendant was able to elicit from two prosecution witnesses testimony that pressure in one part of the body during massage could cause sensation in another part of the body, including painful and pleasurable sensations in the genitals. Because defendant has not shown prejudice, we need not consider whether his counsel’s performance was in fact deficient.
C. Motion for New Trial
1. Motions to Continue
As we have explained, defendant was convicted on May 29, 2012, and sentencing was originally set for August 3, 2012. In early July 2012, defendant filed a substitution
“Under
In Alexander, the jury reached its penalty phase verdict on March 18, 1996, and a hearing on a motion for new trial was set for April 23 (later than the date defense counsel had suggested). On March 22, defendant filed a motion for release of the jurors’ identifying information so his counsel could interview the jurors to determine whether misconduct had occurred that could form the basis of a new trial motion. The trial court denied the motion on April 11. (Alexander, supra, 49 Cal.4th at p. 933.) Defendant then moved for a continuance of the new trial motion on the ground that his counsel would not be prepared to file the motion due to his health and time spent working on another matter. (Ibid.) The trial court denied the request, expressing concern that the matter proceed without further unwarranted delay, and finding that five weeks was sufficient time to
We similarly conclude the trial court did not abuse its broad discretion. The hearing on the motion for new trial and the sentencing took place three and a half months after the jury rendered its verdicts, and more than two months after defendant hired his new counsel. In the meantime, the trial court granted three continuances to allow time to prepare a new trial motion. Much of the factual support for the expanded new trial motion was drawn from declarations of the proposed expert witnesses and Marsha Yates, declarations that did not rely on the transcript of proceedings and were presumably available through diligent investigation while defense counsel waited for the remainder of the trial transcripts. In the circumstances, we cannot conclude defendant did not have a reasonable opportunity to prepare his new trial motion (see People v. Sakarias (2000) 22 Cal.4th 596, 647) or that the trial court’s rulings were unreasonable and arbitrary.
2. Denial of Motion for New Trial
Defendant contends the trial court abused its discretion by denying the motion for new trial without allowing him to examine his trial counsel, Schultz, in an evidentiary hearing. For this proposition, he relies on People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), overruled on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, and People v. Dennis (1986) 177 Cal.App.3d 863 (Dennis). The defendant in Stewart had asked his trial counsel to argue his own incompetence as a ground for a new trial. (Stewart, 171 Cal.App.3d at pp. 391, 393.) At an in camera hearing, the defendant told the court he felt he was inadequately represented because his trial counsel had failed to call certain witnesses. (Id. at p. 394.) The trial court denied the motion. (Ibid.) On the
The question before the court in Dennis was whether the district attorney could be barred from participating in a motion for new trial based on claimed ineffective assistance of counsel. (Dennis, supra, 177 Cal.App.3d at p. 866.) The trial court there had granted a motion for new trial based solely on an in camera Marsden motion for substitution of court-appointed counsel in which the prosecutor did not participate. (Id. at pp. 868, 872; People v. Marsden (1970) 2 Cal.3d 118.) The Court of Appeal agreed with the People that it was error to grant the new trial without an opportunity for the
The cited portions of Pope and Fosselman, however, do not establish that a trial court may not rely on declarations and other documentary evidence to decide a motion for new trial based on ineffective assistance of counsel. Rather, each case recited the well-established rule that where the record does not show the basis for counsel’s challenged acts or omissions, a claim of ineffective assistance is appropriately made in a petition for habeas corpus, in which there is an opportunity for an evidentiary hearing, rather than on direct appeal. (Pope, supra, 23 Cal.3d at p. 426; Fosselman, supra, 33 Cal.3d at pp. 581–582.)
Indeed, as our high court explained in People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 201 (Zamudio), ” ‘There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.’ [Citation.] [¶] . . . California law
We see no reason to apply a different rule here. The trial court was in a position to see and evaluate the performance of trial counsel, as well as the effect any alleged deficiencies may have had on the outcome of the trial. (See People v. Wallin (1981) 124 Cal.App.3d 479, 483 [trial judge best situated to determine competency of trial counsel].) We recognize that some of the claimed incompetency was based on counsel’s actions away from the courtroom, such as his alleged failure to interview the expert witnesses properly. However, the trial court made clear that it excluded the testimony of Dr. Podboy based on its own review of the law. Moreover, defendant submitted declarations of Dr. Podboy and Dr. Friedman in support of the motion for new trial, as well as the declaration of Marsha Yates, and the trial court was in the best position to determine whether its rulings on the admissibility of evidence would have been any different if that information had been before it during the trial. In the circumstances, we find no abuse of discretion in the trial court’s ruling on the motion for new trial without allowing the live testimony of trial counsel.
D. Hearing Accommodations
Defendant contends the accommodations made for his hearing disability deprived him of a fair trial. (People v. Guillory (1960) 178 Cal.App.2d 854, 861 [trial judge
Our high court considered and rejected a similar contention in People v. Freeman (1994) 8 Cal.4th 450, 479–480 (Freeman). The defendant there had hearing difficulties, and counsel and the trial court took repeated steps to resolve the problem: the court ordered medical treatment when the defendant requested it and made sure he got batteries for his hearing aids, and the defendant was given a daily transcript of the proceedings. (Id. at p. 479.) Moreover, “except for a few scattered early occasions, whenever defendant was spoken to he responded with no apparent hearing difficulty.” (Ibid.) Even if he occasionally failed to hear something, the high court reasoned, there was no reason to assume he missed anything of significance or could not participate effectively in the proceedings. (Ibid.)
The trial court here was aware that defendant needed accommodations for his hearing disability, and provided them. As the court explained in denying the motion for new trial, defendant was in fact provided with both the accommodations specified in
Defendant contends his seven-year sentence—the six-year mid-term for count one and an additional one-year term for count two—constituted cruel and unusual punishment. This is so, he argues, because he is 73 year old, he “displayed many good qualities,” he “believed his actions were medically beneficial to the Jane Does,” and he had no prior criminal record. Moreover, he contends, the trial court relied on a probation report that was incomplete because, on the advice of counsel, he did not discuss the charges with the probation officer while his new trial motion was pending.
We may dispose quickly of defendant’s claim that the sentence was improper because he believed his actions were medically beneficial to his victims. The jury decided otherwise when it found him guilty, and there is substantial evidence to support its verdict. Nor has defendant persuaded us that the presentence report was inadequate because he had not yet discussed the crimes with the probation officer. A presentence report must include the defendant’s statement only ” ‘if one is given’ ” (People v. Goodner (1992) 7 Cal.App.4th 1324, 1330–1331; see also
The standards for evaluating a claim that a sentence constitutes clear and unusual punishment are well established. “A punishment is excessive under the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ [Citation.] A punishment may violate article I, section 17 of the California Constitution if ‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] [¶] In determining whether a particular punishment is cruel and/or unusual, courts examine the nature of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.) Defendant makes no claim that his sentence is
We see no gross disproportion between defendant’s offenses and his sentence. The trial court discussed the aggravating and mitigating factors: As aggravating factors, the victims were both vulnerable in that they were in pain and seeking treatment (
The judgment is affirmed.
Rivera, J.
We concur:
Ruvolo, P.J.
Humes, J.