People v. Vicars

• Decision Date: 28 November 2017
• Docket Number: C075022
• Parties: THE PEOPLE, Plaintiff and Respondent, v. SHANE ADAIR VICARS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. SHANE ADAIR VICARS, Defendant and Appellant.

C075022

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

November 28, 2017

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 10F00210)

After a jury was unable to reach a verdict on any of the charges of child molestation of five victims, the People filed a second amended complaint against defendant Shane Adair Vicars. The second amended complaint charged defendant with committing 13 counts of lewd and lascivious acts on a child under the age of 14 against two victims, D. and J. (Pen. Code, § 288, subd. (a).)¹ The second trial culminated withdefendant's conviction on all 13 counts. The trial court sentenced defendant to serve 26 years in state prison and imposed various fines and fees.

On appeal, defendant contends (1) he received constitutionally deficient legal representation because his trial attorney, Michael Chastaine, did not properly investigate or introduce evidence that the two victims were exposed to rumors about defendant engaging in inappropriate conduct with other children, (2) Chastaine was ineffective for failure to introduce evidence that the two victims were friends and could have colluded on their accusations, (3) Chastaine was ineffective for failure to interview two staff members at the school where the molestations took place, (4) he was prejudiced by Chastaine's failure to introduce evidence suggesting J.'s mother questioned victim J. in a manner that planted the idea of the molestation, (5) Chastaine was ineffective for failure to object to the prosecution's cross-examination of the defense expert witness on false memories in young children, (6) Chastaine should have objected to multiple instances of prosecutorial misconduct committed during opening and closing arguments, (7) the trial court erroneously excluded evidence defendant had twice admonished D. that "private parts are to remain private," (8) the unanimity instruction given allowed the jury to convict on all 13 charges if they unanimously agreed he committed only one act, (9) the California Supreme Court erred in deciding People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), and (10) insufficient evidence supported separate convictions for defendant's causing D. to touch defendant's penis on top of and inside defendant's pant leg.

We conclude defendant did not receive ineffective assistance of counsel from Chastaine. Chastaine prepared extensively before making the reasonable tactical choice to present a defense that avoided calling victims of uncharged offenses as witnesses. We also reject the contention Chastaine was ineffective for deciding against launching a fishing expedition by questioning the victims of charged offenses (charged victims) about whether they had previously discussed the molestations. Chastaine was also notineffective for his decision to forego the testimony of some of defendant's colleagues. Even if defendant's colleagues might have lent some support to a defense based on lack of opportunity, Chastaine reasonably decided against this defense in light of other testimony introduced by the prosecution. Chastaine also reasonably decided that calling one of the victims' mothers as a witness would have risked the introduction of highly emotional testimony that could have swayed the jury against defendant. Chastaine had reasonable tactical grounds for not objecting to cross-examination of the defense witnesses regarding compensation when compensation is a generally permissible ground for cross-examination.

Although the prosecutor made several improper remarks during closing arguments, we conclude the remarks were isolated and harmless. Thus, we reject the contention defendant received ineffective assistance of counsel for lack of objection to the prosecutor's closing arguments. We also reject defendant's contention the trial court erred under Evidence Code section 782 in excluding defendant's evidence of D. being admonished twice to "keep [his] private parts, private." Evidence Code section 782 applies only to evidence of sexual activity, and here defendant concedes the evidence did not relate to sexual activity. We are not persuaded by defendant's cumulative prejudice argument regarding ineffective assistance of counsel.

We are also not persuaded by defendant's challenge to the unanimity jury instruction, as given in this case. Neither the challenged instruction individually nor the jury instructions as a whole supports defendant's argument that the jury was allowed to base all of its convictions upon a finding defendant committed only one instance of child molestation. We also reject defendant's challenge to CALCRIM No. 1191 - the same challenge that has already been rejected by the California Supreme Court. Finally, we reject defendant's argument he cannot be separately convicted of causing D. to touch defendant's penis over his pants and then again inside his pant leg.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Prosecution Evidence Introduced During the Second Trial

At the time of the second trial, D. was 11 years old. D. testified he had attended kindergarten at an elementary school where he received before and after school care at a club. Unless D.'s family traveled for vacation, D. attended the club. Defendant was D.'s teacher at the club. Defendant was assisted by two other teachers: S. and R. Defendant played with students during recess and during club time before and after school. D. liked the club - especially after school when they played games and had free time. Defendant also attended one of D.'s birthday parties and some of his sports events. Defendant was the only adult who attended D.'s seventh birthday party. D. and the other students at the club thought defendant was fun and liked to be around him.

1. The first time defendant rubbed his hand on victim D.'s stomach while in the office.

Starting when D. was in kindergarten, defendant would announce several times each week that it was time for the students to go outside and play. Then defendant would walk up to D. and tell D. to "stay in with him to help get [defendant's] wallet out." As the students went outside with S. and R. to play, defendant and D. would go into the club office together. Defendant would close the door that had its window covered by newspaper. Defendant would sit down on a chair and would have D. stand in front of him. Defendant would put his hand underneath D.'s shirt and rub D.'s stomach. The first time this occurred, D. asked why defendant was doing so and defendant responded "that he needed to get his hands warm." D. remembered defendant's hands being wet and cold.

2. The first time D. put his hand on defendant's penis on top of defendant's clothing while in the office.

After defendant rubbed D.'s stomach, defendant announced "that now it's time for my wallet." Defendant "said that he needed help. He needed [D.] to help him get his wallet out of his pocket." D. tried to get defendant's wallet from his pants pocket by shaking the pants. D. shook the pants for a minute or two.

3. The first time D. put his hand on defendant's penis underneath defendant's clothing while in the office.

After the wallet did not fall out, defendant pulled up his pants up to his knees and told D. "to shake it from the inside." Defendant "pulled his pants up and [D.] would stick [his] arm in and shake from the inside." Defendant would "kind of like shake [D.'s] hand" while D. was shaking the wallet inside defendant's pants. This occurred while defendant was sitting and D. was kneeling in front of him. D.'s hand "was very close to [defendant's] privates." D. held on to something that "felt like a leather wallet, but it was kind of sticky." D. testified, "[W]hat I remember is . . . once in a while, I would take my hand out of his pant leg and like have to dry off a little from the stickiness, and then I would put it back in."

D. knew he could stop shaking when the wallet would fall out and to the ground. Defendant would then ask D., "what do you want?" D. would then have a choice between a piece of candy, a toy soldier, or "some money in the game" the students would play and that would help D.'s team win.

4. A subsequent time when defendant rubbed his hand on D.'s stomach while in the office.

D. testified this sequence of events involving "shake the wallet" occurred 20 to 30 times. Defendant would always rub D.'s stomach - usually before the shaking, but a few times after the shaking. D. recalled another occasion that occurred inside the club officeafter D. had asked to get a game out of the office. Defendant put his hand underneath D.'s shirt and rubbed his stomach.

5. A subsequent time when D. put his hand on defendant's penis on top of his clothing while in the office.

On the occasion when D. had asked for the game from the office, defendant stopped rubbing D.'s stomach and told D. to "get his wallet out." D. testified that "every single time I'd first rub it from the outside, every time. I would never start rubbing it from the inside."

6. A subsequent time when D. put his hand on defendant's penis underneath defendant's clothing while in the office.

As always, after a minute or two of D's shaking the wallet from the outside of defendant's pants, defendant instructed D. to shake by reaching into defendant's pants. And, as always, the wallet would fall out at the end. D. would then need to dry off his hands.

7. The first time D. put his hand on defendant's penis on top of defendant's clothing while outside the building.

Defendant also initiated the shaking sequence with D. on six or seven occasions while outside the club...