California Court of Appeals, Third District, Sacramento
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Sacramento County, No. 09F08618 Delbert W. Oros, Judge.
Ken Moyal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
NICHOLSON, Acting P. J.
Convicted of molesting his girlfriend’s young sisters and sentenced to state prison for an indeterminate term of 75 years to life, defendant Edward Dale Mestas appeals. He contends: (1) the trial court abused its discretion by refusing to hold an evidentiary hearing on some of the proffered evidence of the victims’ sexual history and (2) his trial counsel was constitutionally deficient for not investigating further the victims’ sexual history. We conclude: (1) the trial court did not abuse its discretion by refusing to hold an evidentiary hearing on some of the proffered evidence of the victims’ sexual history because the alleged conduct was not sufficiently similar to the conduct charged in this case and, therefore, was not highly probative of the victims’ credibility in this case and (2) the defendant’s assertion that his counsel was constitutionally deficient fails because it is based on speculation concerning what further investigation may have revealed. Finding no error, we affirm.
FACTS AND PROCEDURE
In early 2009, six-year-old T.M. and seven-year-old J.M. lived with their mother, their 20-year-old sister T.P., and the defendant (who was T.P.’s boyfriend), as well as others, in Sacramento. While they lived together, the defendant molested T.M. and J.M.
On different occasions, the defendant masturbated in front of T.M., penetrated her anus with his penis, forced T.M. to orally copulate him more than once, pressed his penis against T.M.’s lips when she refused to open her mouth, and rubbed his penis on her back.
The defendant also masturbated in front of J.M. and forced her to orally copulate him.
The contentions raised on appeal -- and our resolution of those contentions -- do not require us to recount at length how the molestations came to light. However, we note that the defendant denied molesting T.M. and J.M. He caught them watching pornographic videos. And he claimed that T.M. and J.M. accused him of the molestations after he had mistreated the family’s dog.
A jury convicted the defendant of committing two counts each of:
● a lewd act by force or fear on T.M. (Pen. Code, § 288, subd. (b)(1); counts one and five) and
● oral copulation of T.M. (Pen. Code, § 288.7, subd. (b); counts three and four), The jury also convicted the defendant of committing one count of:
● oral copulation of J.M. (Pen. Code, § 288.7, subd. (b); count seven).
Finally, the jury found true the special allegation that the defendant committed lewd acts on more than one child under 14. (Pen. Code, § 667.61, subd. (e)(4).)
The trial court sentenced the defendant to five consecutive terms of 15 years to life, for a total state prison sentence of 75 years to life.
Victims’ Sexual History
The defendant contends the trial court abused its discretion and violated his constitutional fair trial rights by excluding evidence of the victims’ sexual history. He also contends that trial counsel was constitutionally deficient for failing to investigate the allegations of the victims’ sexual history. These contentions are without merit.
A. Evidence Code section 782
Generally, a defendant may not question a witness who claims to be the victim of sexual assault about the victim’s prior sexual activity. (Evid. Code, § 1103, subd. (c)(1); People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Evidence Code section 782, however, provides an exception to this general rule. (See generally People v. Bautista (2008) 163 Cal.App.4th 762, 781-782; People v. Chandler (1997) 56 Cal.App.4th 703, 707-708; People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).)
Evidence Code section 782 requires a defendant seeking to introduce evidence of the witness’s prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the proffered evidence to attack the credibility of the victim. (Evid. Code, § 782, subd. (a)(1), (2); Daggett, supra, 225 Cal.App.3d at p. 757.) The trial court is vested with broad discretion to weigh a defendant’s proffered evidence, prior to its submission to the jury, “and to resolve the conflicting interests of the complaining witness and the defendant.” (People v. Rioz (1984) 161 Cal.App.3d 905, 916.) “[T]he trial court need not even hold a hearing unless it first determines that the defendant’s sworn offer of proof is sufficient.” (Ibid.; see Evid. Code, § 782, subd. (a)(2).)
If the offer of proof is sufficient, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. (Evid. Code, § 782, subd. (a)(3); People v. Fontana (2010) 49 Cal.4th 351, 365-368.) “The defense may offer evidence of the victim’s sexual conduct to attack the victim’s credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in... Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence.” (People v. Chandler, supra, 56 Cal.App.4th at p. 708; see Evid. Code, § 782, subd. (a)(4).)
Evidence Code section 782 applies when the defense seeks to introduce relevant evidence of prior sexual conduct by a child. (Daggett, supra, 225 Cal.App.3d at p. 757.) In Daggett, the defendant was convicted of molesting a child under the age of 14. (Id. at p. 754.) On appeal, he successfully challenged the trial court’s refusal to hold a hearing pursuant to Evidence Code section 782 on the admissibility of evidence that the child had been previously molested by two older children. (Id. at p. 757.) The defendant’s offer of proof consisted of evidence that the child had told a mental health worker and a doctor who had examined him that he had been molested by two older children when he was five years old. (Ibid.)
The Daggett court discussed the relevance of a molest victim’s sexual history: “A child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. [¶] In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant ...