California Court of Appeal Aug 16, 2024 No. E081786Unpublished
Filed 8/16/24 P. v. Atkins CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081786
v. (Super.Ct.No. BAF2000497)
LEON WALLACE ATKINS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Rene Navarro, Judge.
Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Monique
Myers, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted Leon Wallace Atkins of two felony counts of annoying a child.
(Pen. Code, § 647.6, subds. (a)(1), (c)(2); unlabeled statutory references are to this code.)
Atkins challenges the sufficiency of the evidence supporting one of those convictions.
He also contends that his trial counsel was prejudicially ineffective for not objecting to
in favor of the judgment.” (Ibid.) “Matters of credibility of witnesses and the weight of
the evidence are ‘“‘the exclusive province’”’ of the trier of fact.” (Ibid.)
The record contains sufficient evidence that Atkins’s conduct toward A.L. would
objectively disturb or irritate a normal person without hesitation. Over the course of two
months, Atkins, a 58- or 59-year-old man, initiated contact with A.L., a 13-year-old
stranger, on multiple occasions. He initiated those interactions near or at A.L.’s home,
which was in a very remote area. The first time that Atkins spoke to A.L. he invited her
to his nearby residence to swim, but his home did not actually have a swimming pool.
When Atkins later went to A.L.’s residence purportedly to deliver mail that he claimed to
have received at his house, he walked directly past the residence to which the mail was
addressed in order to reach A.L.’s home and talk to her. A.L. was in the front yard
unaccompanied by an adult. Moreover, Atkins brought the mail with him on a day on
9
which mail was not even delivered. Atkins also brought girls’ clothes to A.L.’s home
completely unprompted and without any explanation. From that evidence, the jury could
reasonably infer that the reasons that Atkins gave for approaching and initiating contact
with A.L. were insincere and that Atkins repeatedly manufactured reasons to approach
and communicate with A.L. Moreover, in addition to the pretextual encounters, Atkins
drove by A.L.’s house very slowly numerous times during the day and at night, even
though A.L.’s house was in a rural area, not near the main road, and hence not in a
location that strangers’ vehicles normally drove past. That constitutes substantial
evidence of conduct that objectively would disturb a normal person without hesitation.
Atkins contends that the evidence is insufficient because none of his conduct had
any “indicia of a sexual nature.” The contention lacks merit. Section 647.6(a)(1) does
not require that the defendant’s annoying conduct contain any sexually suggestive
component. (Thompson, supra, 206 Cal.App.3d at p. 466.) Conduct that does not
contain any sexual component can objectively and unhesitatingly disturb or irritate a
normal person. (Id. at pp. 461, 466.) Such conduct is criminalized by section 647.6(a)(1)
if it was “‘“motivated by an unnatural or abnormal sexual interest”’ in the victim
[citations].” (Lopez, supra, 19 Cal.4th at p. 289.)
Atkins’s reliance on People v. Carskaddon (1957) 49 Cal.2d 423 (Carskaddon), in
which our Supreme Court found insufficient evidence of objectively annoying conduct
(id. at p. 426), is misplaced. “When we decide issues of sufficiency of evidence,
comparison with other cases is of limited utility, since each case necessarily depends on
10
its own facts.” (People v. Thomas (1992) 2 Cal.4th 489, 516.) The facts in Carskaddon
are distinguishable. There, the evidence showed that the “defendant was in the company
of a 6-year-old girl and a 4-year-old boy in a public park, that he walked down a public
street with the little girl by his side, and that when stopped and queried by the officer,
[the] defendant stated that the girl was lost and he was taking her home.” (Carskaddon,
at p. 426.) The girl told a law enforcement officer that the defendant told her that he was
taking her to a river. (Id. at p. 425.) Carskaddon concluded that there was “no
substantial evidence of anything more than friendly noncriminal activity on the part of
[the] defendant toward the girl.” (Id. at p. 426.)
Unlike the defendant in Carskaddon, Atkins engaged in conduct that was not
limited to a single, isolated incident but rather included multiple incidents over the course
of two months in which Atkins repeatedly initiated contact with A.L. under
circumstances that strongly supported an inference that he was manufacturing pretexts to
interact with her. In addition, Atkins repeatedly drove by A.L.’s remotely located
residence during that period at an unusually slow speed.
The facts of this case more closely resemble those in Thompson, supra, 206
Cal.App.3d 459, in which the defendant drove alongside a 12-year-old girl riding her
bicycle and followed her for an extended period of time, driving at slow speeds and
making U-turns to maintain contact with her. (Id. at pp. 461-462.) The defendant also
made gestures with his hand and mouth to the girl. (Id. at p. 462.) Thompson upheld the
conviction, concluding that although the behavior was not particularly lewd it “would
11
place a normal person in a state of being unhesitatingly irritated, if not also fearful.” (Id.
at p. 467.) Atkins’s repeated behavior of initiating pretextual contact with a 13-year-old
and repeatedly driving by her remote home, though not itself lewd, likewise “would place
a normal person in a state of being unhesitatingly irritated, if not also fearful.” (Ibid.)
We accordingly conclude that there was substantial evidence to support Atkins’s
section 647.6(a)(1) conviction as to A.L.
II. Alleged ineffective assistance
Atkins contends that his trial counsel provided ineffective assistance by failing to
object at trial to the admission of People’s Exhibit 2, which he claims had previously
been excluded by the trial court. Atkins contends that it is reasonably probable that
absent the claimed error the jury would not have convicted him on the child annoyance
count involving A.C. The contentions lack merit.
A. Relevant proceedings
In August 2020, Atkins filed a motion to suppress certain evidence that he argued
was illegally seized on the day that law enforcement arrested him at his home. Sheriff’s
deputy Robert Mills was part of the law enforcement team that arrested Atkins at a house
on Cholla Road. One day before the arrest, Mills drove by the residence and saw a Ford
pickup truck parked in the driveway. Mills took photographs of the truck from the street
as he was driving by. The truck matched the description given by the alleged victims.
The same truck was parked at the residence on the day of the arrest.
12
After Atkins was arrested, Mills started driving to the sheriff’s station, but he
turned around and returned to the Cholla Road house to take some photographs. Mills
did not take any photographs during the arrest. The gate of the chain-link fence that
surrounded the property was open, so Mills walked through it and up the driveway, where
he “took overall photographs of the truck,” including a “clearer,” “up-close” photograph
of the license plate. Even though Mills already had photographs of the truck, he wanted
“closer-up images.”
The exhibit that the prosecution showed Mills at the hearing contained two
photographs on one page. The top photograph was of the truck, and a close-up
photograph of the license plate appeared below.
The court excluded the exhibit containing the photographs of the truck that Mills
took on the day of Atkins’s arrest. The court concluded that Mills did not have a right to
reenter the property, reasoning that “even though the truck is in plain view while he could
have taken that photograph from the street, he didn’t have the right to go back on the
property anymore, and he did so.”
The trial was held in February 2023. A different judge presided over the trial, and
a different attorney represented Atkins at trial. The prosecution introduced People’s
Exhibit 2, which contained a photograph of the truck. The prosecutor described the
exhibit as containing a photograph of the truck on the top half of the page and a
photograph of a license plate on the bottom half of the page. Defense counsel did not
13
object to admission of the exhibit. The prosecution showed the exhibit to A.C.,
Jacquelin, and Leticia.
B. Analysis
“To establish ineffective assistance of counsel, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and counsel’s deficient performance was prejudicial, that
is, there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant.” (People v. Sepulveda (2020) 47 Cal.App.5th 291,
301 (Sepulveda); Strickland v. Washington (1984) 466 U.S. 668, 687-692.) We presume
“that counsel’s actions fall within the broad range of reasonableness, and afford ‘great
deference to counsel’s tactical decisions.’” (People v. Mickel (2016) 2 Cal.5th 181, 198
(Mickel).)
A defendant asserting ineffective assistance of counsel on direct appeal bears a
“‘difficult’” burden because “a reviewing court will reverse a conviction based on
ineffective assistance of counsel on direct appeal only if there is affirmative evidence that
counsel had ‘no rational tactical purpose’ for an action or omission.” (Mickel, supra, 2
Cal.5th at p. 198.) “On direct appeal, if the record ‘“sheds no light on why counsel acted
or failed to act in the manner challenged,”’ we must reject the claim ‘“unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463, 488.) When the
record contains no explanation for counsel’s actions, we have “no basis on which to
14
determine whether counsel had a legitimate reason for making a particular decision, or
whether counsel’s actions or failure to take certain actions were objectively
unreasonable.” (Mickel, at p. 198.) “Accordingly, ‘except in those rare instances where
there is no conceivable tactical purpose for counsel’s actions, claims of ineffective
assistance of counsel should be raised on habeas corpus, not on direct appeal.’”
(Sepulveda, supra, 47 Cal.App.5th at p. 301.)
The People contend as a threshold matter that Atkins has failed to establish that
the photograph admitted at trial was the one that was previously excluded. We need not
decide the issue. Assuming for the sake of argument that the admitted photograph is the
same photograph that was previously excluded, Atkins has not “shown ‘affirmative
evidence that counsel could have had “no rational tactical purpose”’” for proceeding as
she did at trial. (Sepulveda, supra, 47 Cal.App.5th at p. 302.) Mills testified at the
hearing on the motion to suppress that he also had taken photographs of the truck from
the street on the day before law enforcement arrested Atkins. The trial court excluded
only the photographs of the truck that Mills took on the day of the arrest. It is possible
that Atkins’s counsel was aware of the pretrial ruling but also knew of or saw the
photographs that Mills took of the truck on the day before the arrest. In excluding the
photographs taken on the property after Atkins’s arrest, the trial court noted that the
photographs would have been admissible if they were taken from the street. Atkins’s
trial counsel could have concluded that because there probably were admissible
photographs of the truck that had been taken the previous day, it did not matter which
15
photographs the prosecution admitted. Because the record is consistent with at least one
reasonable explanation for counsel’s failure to object, we must reject the ineffective
assistance claim on direct appeal. (Id. at pp. 301-302.)
Atkins’s only argument to the contrary is that “there was no evidence that the
officer turned over the first photo to the People or that the officer even had a copy of the
photo some three years after it was taken,” so it is speculation to assume that there were
any admissible photographs. The argument fails. To succeed on an ineffective assistance
claim on direct appeal, Atkins must show “‘affirmative evidence that counsel could have
had “no rational tactical purpose”’” for proceeding as she did at trial. (Sepulveda, supra,
47 Cal.App.5th at p. 302.) He cannot carry that burden by speculating about whether law
enforcement preserved relevant evidence.
For the foregoing reasons, we conclude that Atkins has failed to carry his burden
of demonstrating that his trial counsel was ineffective.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J. We concur:
MILLER Acting P. J.
RAPHAEL J.
16
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for annoying a child, finding sufficient evidence of objectively disturbing conduct and rejecting the claim of ineffective assistance of counsel.
Issues
Whether there was sufficient evidence to support the conviction for annoying a child under Penal Code section 647.6, subdivision (c)(2).
Whether trial counsel provided ineffective assistance by failing to object to the admission of photographic evidence.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record contains sufficient evidence that Atkins’s conduct toward A.L. would objectively disturb or irritate a normal person without hesitation.”
“Section 647.6(a)(1) does not require that the defendant’s annoying conduct contain any sexually suggestive component.”
“Because the record is consistent with at least one reasonable explanation for counsel’s failure to object, we must reject the ineffective assistance claim on direct appeal.”