(Super. Ct. No. 62031871)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted by a jury of three counts of lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)), five counts of lewd and lascivious conduct with a child 14 or 15 years old by one who is at least 10 years older (id. § 288, subd. (c)(1)), three counts of oral copulation by one more than 21 years old with another who is under 16 (id. § 288a, subd. (b)(2)), and two counts of sexual penetration by one more than 21 years old with another who is under 16 (id. § 289, subd. (i)). He admitted a prior serious felony conviction for purposes of both enhancement and the three strikes law, but the trial court later granted his motion to strike the prior for purposes of three strikes sentencing. Defendant was sentenced to an aggregate, unstayed term in state prison of 15 years 8 months.
He appeals, claiming various evidentiary errors, primarily regarding the exclusion of evidence relating to the victim's credibility and the admission of expert testimony on child sexual abuse accommodation syndrome (CSAAS). Defendant also claims the prosecutor committed misconduct during closing argument by reading from various publications that had not been introduced into evidence.
We reject defendant's evidentiary claims. We further conclude defendant forfeited his prosecutorial misconduct claim by failing to object. On defendant's alternate claim of ineffective assistance based on counsel's failure to object, we conclude he was not prejudiced thereby. We therefore affirm the judgment.
Defendant and the victim are related by marriage in that the victim's step-mother, Margaret R., had previously been married to defendant's father. Defendant was born in 1969; the victim was born in 1987.
The victim's parents, Mark R. and Regina M., divorced in 1996. Mark first met defendant in December 1996. In 1998, Mark was living in San Bruno, Regina was living approximately one and one-half to two miles away in Millbrae, and defendant resided with his wife and newborn daughter less than two blocks from Regina.
On one occasion in either 1998 or 1999, when the victim was 11 or 12 years old and was staying with her father, Mark and the victim visited defendant and his family at their home. Later, Mark departed, leaving the victim behind. While defendant's wife and baby were away from the house, defendant laid the victim on the floor, got on top of her and touched her breasts. He took off her shirt and his clothes and told her to follow him into the bedroom. Defendant told the victim to touch his penis but she refused. When defendant heard someone arrive at the house, he put his clothes back on. Later that evening, defendant drove the victim to her father's house and told her she could not tell anyone what had happened.
Defendant and the victim had very little contact thereafter, until the summer of 2002. At that time, the victim was living with her mother and her mother's new husband, David M. However, the victim stayed with her father and his new wife, Margaret R., during the periods of June 12 through June 23, June 30 through July 14, and July 19 through August 4.
Between May 29 and August 21, 2002, the victim placed many calls to defendant, either at his workplace or at his home. She called nearly every day and some days called multiple times. On July 26, the victim placed 11 calls to defendant's workplace. Three days later, she called his workplace seven times from her mother's home and seven more times using her father's cell phone. She also called defendant's home five times that day. Defendant called the victim many times as well during that period.
The victim sent defendant many email messages during the summer of 2002, and defendant sent her several as well. The victim also maintained a journal of her interactions with defendant over the summer.
Between June 17 and June 19, the victim stayed with defendant and his family at his house. When defendant's wife and children were not around, defendant would touch the victim's vagina with his hand and would put his mouth over her breasts. During the night of June 17, defendant came into the room where the victim was sleeping, got in bed with her and moved his hands down her back and onto her buttocks. He told the victim that if she had not been wearing pants she would be in trouble and that his feelings for her had not changed. On June 19, the victim went inside the house after swimming and defendant followed her. He hugged her from behind, kissed her neck, turned her around, and kissed her again. Defendant later spoke to the victim on the phone and said they would find ways to see each other.
In her journal for June 24, the victim wrote: "Jimmy is so sweat [sic]. He cares about me and I care about him. I will never ever stop thinking about him. I think about him every day, minute, hour, second and more. I dream about him too. I wish I lived across the street from him. I used to see him almost every weekend but then he moved far away. Ever since we got together and had a fling I have been in love with him. Get back to you soon."
In an entry for June 27, the victim wrote: "I am so horny 4 him and I want to fuck him. If I didn't have my pants on last week like he said then I would be in trouble (ya know)!"
On July 13, the victim was staying with her mother. While Regina and David were away from the house, defendant came over and laid on top of the victim on the floor. He touched her breasts and kissed her. He also sucked on her breasts and "left a hickey on them." Defendant put his finger in the victim's vagina and kissed her on the neck and mouth. Before he departed, defendant gave the victim condoms.
In a journal entry for July 13, the victim indicated that defendant came to her house at 10:30 for about 20 minutes. It also says, "Finger Me Again," "You gave me a hickie," and "he gave me condoms for us!" An entry for the next day refers to defendant giving her the "hickie" and the condoms on Saturday.
On July 15, defendant wrote the following email to the victim: "Hey, Sweetie, I only have a few minutes here, but I do really miss you and love you too. Hopefully soon we can be together in heated passion. Call me tomorrow at work, K? Love Jimmy."
On July 18, the victim sent defendant an email containing the following: "But otherwise I can't wait because when you were fingering me, it felt so good and that's all I can think now if [sic] the feeling inside of me when you are doing that."
The victim next saw defendant at his house on August 3 for a barbecue and pool party. Also in attendance were the victim's father and stepmother, defendant's wife and children, a neighbor and his family, and the sister of defendant's wife and her two sons. At some point during the afternoon, defendant and the victim were in the pool and defendant placed his finger inside her vagina while she held onto the side of the pool. Later, defendant swam up to the victim while she was sitting on a pool step and pulled her into the water. He then went under the water, pulled the victim's bathing suit to the side and inserted his tongue in her vagina.
After defendant got out of the pool, he went inside and signaled the victim from an upstairs window to join him. The victim did as directed. She and defendant went into a guest bathroom where he took off their clothes, rubbed his penis against her buttocks and then inserted his penis into her anus. He also put his tongue inside her vagina and forced her to orally copulate him. Eventually they got dressed and went back downstairs. When it was time to leave that evening, the victim locked herself in a bathroom and refused to come out because she wanted to stay at defendant's house. However, the victim's father eventually convinced her to come home with him.
In a journal entry for August 4, the victim wrote: "He has fingered me, sucked me, now all he has to do if [sic] fuck me! He was trying to get hard yesterday but we (he) was too, too nervis [sic] with everybody in the house! . . ."
On August 12, defendant wrote the following email: "Listen, you want to make love to me and I want to make love to you. What do we do? Maybe I will take a week off--a week day off so we can get together if you are not working and I will visit you at your house and we can make the sweetest love together. Where are you? How come are [sic] are not writing back? When you call tomorrow if you are in the bath, I want to turn you on. I really want to fuck you hard and make you come. I want to lick your body. Sweetie, I think that you are so fine. You are the bomb and you are so beautiful. You are so sexy. Never be ashamed of your body while you are with me. Your body is a treasure. Where are you? I wrote a hell of a lot. I love you and miss you. Don't turn me in."
On August 18, defendant wrote: "I guess you're mad at me and won't write back. I don't blame you. If I had my choice, I'd be licking your clit 24/7 making you CUM. Hopefully you still love me. Please tell that you do. I need you. I kill myself if you won't be mine. You have to be my main and only lover. When you become 18, I will take you on a trip to a different country like Mexico to make love to you on the beach, in the hotel and everywhere we can think. But please, please, don't run away. Things would get complex. Don't do it or you and I can never be. So don't do it. You also need to do well in school. For every A I will fuck you harder. K?"
On August 20, defendant wrote: "Hey, my little fuck bunny, how are you? Need to know directions to your house. Also when does your mom leave for work? And lastly I can only stay in the morning. I'll have to be at work by noon."
On August 22, defendant wrote: "Hey sweetheart! I'm sure that you're not on line right now, but I just wanted to say hello. I guess tomorrow you'll be baby-sitting. Right? Anyways, I really want to know what you are doing this weekend, okay? Seriously though I'm over the emotion of the last day, and I really miss you a lot. I need to know if you're busy this weekend. Next weekend I'm going to Monterey for my birthday. I really want us to last forever, but you really have to be patient. I will make love to you as much as we can until you are able to move away from your mother legally, so that we can spend the rest of our lives together. We can have your little love nest where we can make love, (not fuck, but make love) 24/7. You are the sweetest thing to come into my life, but I don't want you to be controlling, only in bed. Okay?" [¶] "Sweetie, if you can be patient like this, I will give you the world!!!! And I'd like to ask you a formal question if I may. Will you marry me? I want you to be my loving and caring wife. To be with me for the rest of my life. When you become 18, I want us to run away together at that time. Can you expect that? So, will you be my one true love? Will you run off with me on your 18th birthday? I will make you so happy! But in the meantime our meetings may be infrequent, but they will be the best times you will ever have. Love you."
That same day, the victim's stepfather happened to see her journal lying open on a desk in her room. He glanced at it and saw things that didn't look right to him. When the victim's mother got home 15 to 20 minutes later, he showed her the journal. They later confronted the victim about it. David then sent an email message to defendant using the victim's account saying something about the cat being out of the bag. Several days later, they reported the matter to the police.
Defendant was charged with various sex offenses as described above. At trial, he testified in his own behalf. He denied ever touching the victim inappropriately, but acknowledged sending the various emails described above. Defendant claimed these were nothing but a fantasy that he was living out online. He testified he was not attracted to the victim sexually but was concerned about her. He also testified that once he started down this road, he could not stop for fear that the victim would turn him in for having sent sexually explicit emails. Defendant admitted he knew he had crossed the line with the emails but was caught up in the fantasy. Defendant claimed he made plans with the victim to meet but never intended to follow through. Defendant denied that he had ever been alone with the victim in Millbrae and denied even getting in the swimming pool on August 3. According to defendant, in August he was trying to work out an exit strategy to break off the communications with the victim.
Defendant was convicted on all charges. On the principal charge of lewd and lascivious conduct with a child under the age of 14, defendant was sentenced to the middle term of six years. On seven other counts, defendant received consecutive one-third middle terms of eight months. On all other charges, defendant received the middle term of two years, to run concurrently. He also received an enhancement of five years for a prior serious felony conviction (Pen. Code, § 667, subd. (a)), for a total sentence of 15 years 8 months.
Prior to trial, the prosecution moved in limine to exclude evidence concerning a sexual relationship between the victim and her step-brother, A.S., two years after the latest offenses charged in this matter. Defendant in turn moved for admission of the evidence.
According to defendant's offer of proof, in 2004, when the victim was not yet 18 years old, she engaged in a sexual relationship with A.S. During an investigation of that matter, the victim made several false statements to a police officer. In particular:
"a. [The victim] [f]irst stated that a condom wrapper found in a bag next to her bed belonged to 'a girlfriend' who had come over to her house after school the previous day.
"b. [The victim] denied that [A.S.]'s fingerprints would be on the condom wrapper. After [O]fficer Eichler explained the concept of DNA testing, [the victim] admitted that DNA from the condom would 'probably' match that of Mr. [S.]
"c. [The victim] then told the officer that any DNA found on the exterior of the condom would not match her own DNA. She again tried to tell the officer the unnamed 'girlfriend' who had supposedly accompanied her home from school the previous day must have been the one who had intercourse with Mr. [S.]
"d. When pressed, [the victim] was evasive about the identity of the 'girlfriend,' refusing to give a name, location, or any identifying details.
"e. When asked to explain why she and Mr. [S.] had spent so much time alone in his bedroom when she visited his (their) father, [the victim] stated that [A.]'s bedroom was the only place they could watch television.
"f. [The victim] again denied having sexual relations with her half-brother, Mr. [S.]
"g. As the investigation progressed, both [the victim] and [A.S.] admitted to police that they had been involved in a a [sic] sexual relationship."
Defendant argued the evidence demonstrated the victim's willingness to lie to police and therefore was relevant on the issue of her credibility.
The trial court determined the evidence was inadmissible under Evidence Code section 782, as it related to the victim's sexual conduct. (Further undesignated section references are to the Evidence Code.) The court also found the A.S. matter to be totally different from that presented here. Although the court granted the motion to exclude, it did so without prejudice to defendant presenting a sanitized version of the evidence.
Defendant later proposed a sanitized version containing the following four proposed questions, the last two of which are essentially the same:
"1. Ms. Doe, you were interviewed by a Police officer on December 16, 2004, in relation to [A.S.]?
"2. The police officer asked you specific questions during that interview related to [A.S.]?
"3. Your answers to the officer were not truthful?
"4. You lied to the officer when you answered the questions?"
The trial court again excluded the evidence, this time under section 352. The court found the relevance of the evidence to be limited due to remoteness in time and the differences in the situations presented. Defendant renewed his request to admit the evidence following the victim's testimony, but the court again excluded it.
Defendant contends the trial court erred in excluding the foregoing evidence. He asserts the prosecution was permitted to present the victim in a false light of veracity as to everything except her relationship with him, and this denied him a fair trial. We disagree.
Unless otherwise excludable, all relevant evidence, including evidence concerning the credibility of a trial witness, is admissible. (People v. Mizchele (1983) 142 Cal.App.3d 686, 690; see §§ 210, 351, 780.)
Section 782 provides that, in a case such as this, "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness," certain procedures must be followed. (§ 782.) "A written motion must be made which includes an offer of proof of the relevancy of the evidence of sexual conduct and its relevancy in attacking the credibility of the complaining witness. If the court finds the offer of proof sufficient it shall order a hearing out of the presence of the jury at which the complaining witness may be questioned. If at the conclusion of the hearing the court finds the evidence relevant and not inadmissible pursuant to . . . section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted." (People v. Daggett (1990) 225 Cal.App.3d 751, 757.)
Section 782 is only tangentially related to the present matter. The defense was not attempting to present evidence of the victim's subsequent sexual conduct on the issue of credibility. The defense was trying to get before the jury an instance of the victim's dishonesty, i.e., that she lied to a police officer about her relationship with A.S. It is only coincidental that the lie related to a sexual matter. (See, e.g., People v. Franklin (1994) 25 Cal.App.4th 328, 335-336 ["The instance of conduct being placed before the jury as bearing on credibility is the making of the false statement, not the sexual conduct which is the content of the statement. Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness's credibility"].)
The trial court attempted to get around this situation by permitting the defense an opportunity to sanitize the evidence so that it revealed an instance of dishonesty without revealing the sexual nature of the circumstances. However, as the court pointed out at the time of its first ruling, evidence regarding the sexual nature of the relationship between the victim and A.S. was going to have to come out in order for the jury to put her statements to the officer in context. This, according to the court, would implicate section 782.
Ultimately, the court excluded the evidence on the basis of section 352. Section 352 permits the exclusion of relevant evidence where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Prejudice as used in section 352 refers to the possible misuse of evidence. (People v. Hoze (1987) 195 Cal.App.3d 949, 954.) Evidence should be excluded as unduly prejudicial "when it is of such nature as to inflame the emotions of the jury, motivating [jurors] to use the information, not to logically ...