Opinion
E044512
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. EARL EUGENE CANNEDY, Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
Following a jury trial, defendant Earl Eugene Cannedy was found guilty of oral copulation of a person prevented from resisting by an intoxicating, anesthetic or controlled substance (Pen. Code, § 288a, subd. (i)), and oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). On October 19, 2007, he was sentenced to state prison for a total term of two years, to be served consecutively to the sentence he received in Superior Court case No. INF046350 (10 years eight months). Defendant appeals, contending he was denied his constitutional rights when the trial court refused to allow him to call J.C. as a defense witness to discredit A.G.s testimony against him.
All further references are to the Penal Code unless otherwise indicated.
(People v. Earl E. Cannedy, Jr. (June 12, 2007, E040379 & E042488 [nonpub. opn.].)
I. FACTS
P., C., and Jane Doe are sisters. P. was married to defendant. A.G. is Jane Does niece, P.s daughter by another man.
Jane Doe was born on December 11, 1983. It should be noted that in 2006 Jane Doe pled guilty to eight counts of forgery and receiving stolen property and was put on probation.
In 2000, when Jane Doe was 17, she spent Christmas with P. and defendant in Palm Desert. Jane Doe was sleeping in A.G.s bedroom because A.G. was away. On December 23, after the family returned home from shopping, defendant got a bottle of vodka from the freezer to share with Jane Doe while P. was making dinner. Defendant showed Jane Doe how to "guzzle" the vodka. After about four or five "guzzles," Jane Doe became affected. She thought she must have blacked out, because she did not remember much about dinner. She remembered waking up in A.G.s bedroom in her pajamas. Jane Doe felt paralyzed. The room was dark and defendant was at the foot of the bed. She remembered P. walking to the room, asking defendant to come to bed. Jane Doe fell asleep.
When Jane Doe woke up again, defendant was near the foot of the bed, tugging her ankles and knees to turn her on her back and pull her down to the foot of the bed. He grabbed the waistband of her pajamas and pulled them down to her knees. She was not wearing underwear. He commented that she had a "beautiful pussy" and he loved it. He put his mouth on her vagina and made a "sucking type of motion." He was kneeling on the floor and leaning over her, sucking and moaning. She wished her sister would come in and take him away. She did not try to stop defendant and did not fight him because she could not move her arms or legs, and she could hardly stay awake. She was scared and very uncomfortable and she wanted defendant to stop, but she did not say anything. Defendant was licking his fingers and spreading her vagina, putting moisture from his mouth there with his hand. When there was enough moisture he pulled out a "rubber dildo" in the shape of a penis, and put it into her vagina, moving it in and out.
At last, P. came in and yelled at defendant to come to bed. Jane Doe fell asleep and didnt wake up until daytime, feeling the affects of drinking. C. was telling Jane Doe to gather her things because she was leaving. Fearing that she would be blamed for defendants action, Jane Doe did not report what had happened until June 2001.
C. described a frantic phone call she received from P. on December 23 or 24, 2000, at 4:00 or 5:00 in the morning. P. said she was calling from A.G.s closet. She sounded hysterical. P. said that Jane Doe was drunk and that defendant was "eating out" Jane Doe. P. told C. to come get Jane Doe and take her home with her. C. arrived around 7:30 a.m. and picked up Jane Doe. Jane Doe and C. agreed not to disclose what defendant had done.
A.G. testified that defendant is her stepfather. She lived with P., her mother, and defendant until January 2004. Her relationship with P. fell apart after defendant sexually molested her (A.G.) over the Christmas holidays in 2003. P. did not want to believe A.G. and took defendants side.
A.G. was born in August 1990.
One evening before Christmas 2003, A.G. was in the family room watching a movie with defendant. As she lay on the couch watching a movie, with her legs across defendants lap, he asked her if she wanted a foot massage. He started with a foot massage and then slowly started moving his hands up her leg, inside the pajama leg. He moved his hands far enough up to touch her vagina with his hand, then moved his fingers around and then inside her vagina. A.G. did not say anything, but she was hurt and didnt understand why he was doing this. She did not try to stop him but did get up and go to her bedroom. She did not tell anyone else what happened.
A.G. was afraid that it would happen again. A few weeks later, but still before Christmas, A.G. was sick and was lying on the couch around 10:00 p.m. P. was at work. When defendant came home from work, he sat down with A.G. on the couch. A.G. said her back was hurting. Defendant offered, and A.G. accepted, a back massage. His hands again went under her pajama bottoms, moving down to massage her buttocks. He then started to lift up her hips and take off her pants and underwear. He pulled them down to her knees, then put his mouth to her vagina while her buttocks were up in the air. He kept licking her vagina until he saw her crying really hard. She felt betrayed. She did not say anything to him, but he stopped and said he was sorry, he did not know it was wrong and it would not happen again. She kept crying and finally went to her room. She did not tell her mother because he promised her it would not happen again.
On Christmas morning in 2003, A.G. was in her parents bed with her mother, defendant, and two stepsisters. Her mother left to take a shower, and her sisters were sleeping, when defendant reached over and started putting his hands down her pants again. Going under her underwear, he touched her vagina, but as soon as she felt that she got up and went to her bedroom. She did not tell her mother because she did not know how. She was also afraid because defendant told A.G. that she and her sister would be taken away if anyone found out. Nonetheless, A.G. eventually reported defendants actions to the police. Defendant was charged and later convicted of his actions.
Defendant testified on his own behalf. He denied sexually molesting either Jane Doe or A.G. but admitted that he was convicted of molesting A.G.
II. EVIDENCE CONCERNING A.G. RECANTING ACCUSATIONS AGAINST DEFENDANT
Defendant contends the trial courts refusal to allow the testimony of J.C. for the purpose of impeaching A.G.s testimony constituted a violation of his rights to due process and to call defense witnesses. He refers to the testimony of J.C., which would show that A.G. recanted her charge of sexual molestation when she posted an "away message" on the Internet. Alternatively, if we find that defendants constitutional objections were waived due to trial counsels failure to specify such grounds, defendant argues ineffective assistance of counsel. In any event, defendant maintains the People cannot show that the error in not allowing this impeaching evidence was harmless beyond a reasonable doubt.
"Away messages" are notices used on the Internet that a person will be unavailable for awhile.
A. Standard of Review
Citing numerous case authorities, including Chambers v. Mississippi (1973) 410 U.S. 284, 294 (Chambers), defendant claims the exclusion of J.C.s impeaching testimony violated his federal constitutional right to present a defense. "A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state courts application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations]. . . . Although the high court in Chambers determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question `the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. [Citation.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds as stated in People v. Doolin, 2009 Cal. Lexis 2, 49 (Cal. Jan. 5, 2009).)
In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The question whether the defendant presented an adequate foundation to establish the relevance of the evidence also lays within the trial courts broad discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) "`Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion. [Citation.] But `exclusion of evidence that produces only speculative inferences is not an abuse of discretion. [Citation.]" (People v. Cornwell, supra, 37 Cal.4th at p. 81.)
Turning to the case before this court, we consider whether the trial court abused its discretion in finding a lack of foundation to admit defendants impeaching evidence.
B. Additional Background
A.G. described how defendant molested her around Christmas 2003. During cross-examination, A.G. admitted that she had access to a computer in December 2003 and early 2004. She knew about America Online (AOL) instant messaging. She had a "buddy list" and a screen name on AOL to talk to certain people in a "private chat room." A.G. acknowledged familiarity with "away messages." She had previously left "away messages" for her friends on occasion but did not recall leaving one in the second week of February, 2004, when she moved from defendants home to her fathers home, nor did she recall leaving a message relating to the "content" of her testimony.
Defense counsel asked, "May I read something and ask if she posted it?" The prosecutor objected on grounds of hearsay and lack of foundation. The court sustained the objection but allowed defense counsel to show the paper to A.G. Counsel asked A.G. if she ever wrote that statement or a similar statement on an "away message" in Palm Desert. A.G. responded: "I would never write anything like that because it is not true. I—it wasnt my choice to move to my dads."
A.G. admitted knowing J.C. and testified that they had been friends in Palm Desert, but they had not talked for a long time. A.G. did not remember any contact with J.C. after moving out of defendants house. She also could not recall whether J.C. was on her "AOL buddy list."
After A.G.s testimony, the People rested their case. At a sidebar, defense counsel told the court that he wanted to call J.C. to impeach A.G.s testimony. J.C. would testify that A.G. posted an "away message" explaining her absence. The message provided: "To everyone who is reading this, the rumors that you heard are wrong. I just wanted to move to my dads because everyone hates me and I dont want to put up with it anymore. Everything that you have heard isnt true. I just made it up so I could get away from it all. Im living at my dads where I have friends and Im happy. Im at [L.s] right now but Im only going to be here for a day. You can reach me at [L.s] if you want to talk."
Defense counsel conceded that J.C. did not print out the message, she reportedly wrote down the statement, and her writing became part of the record in defendants other case. Counsel typed it to make it more legible. According to defense counsel, A.G. was the only person who could post an "away message" on A.G.s Web site because it had password-protected access. Defense counsel offered the message to show that A.G. recanted her testimony about defendant molesting her, and defense counsel stated he would lay the foundation with J.C.s testimony. He argued that the jury had the right to hear about the message, noting that Jane Doe and A.G. testified in both of the cases against defendant.
The prosecutor maintained there was no foundation for the testimony. In response, defense counsel stated: "I would represent to the court that it is Exhibit I to new trial in the [A.G.] trial. And it is also an exhibit in the appeal record in [A.G.] trial. She using [sic] the transcripts from [A.G.] trial. The People prosecuted that case. This isnt a surprise to them. I found it in the file which I didnt even represent her in. It wasnt our office."
The trial court continued to inquire about laying a foundation, asking, "How do you lay the foundation? What computer was it typed from?" Defense counsel replied that it could be typed from any computer in the world. The court noted it could be typed by any person in the world as well. Counsel disagreed, contending only the person with the identity and password could post the "away message." The court responded: "I know. You think those are secret from everybody? I know my wifes and she knows mine. I know my daughters. I know my granddaughters. She showed me how to get onto her MySpace, . . ."
Defense counsel claimed J.C. would testify that she clicked on A.G.s identity as a selected and approved "buddy," and the writing represented what popped up as an "away message." The prosecutor argued the message was not admitted at the other trial; there was no evidence of foundation and no connection between the screen name or the "buddy list" and A.G. The prosecutor observed, "The best thing that [defense counsel] has is a handwritten note, and he gave me a typewritten note. There is no foundation to show that there was a transfer from one computer under A.G.s buddy name to [J.C.s] computer on her buddy name. It is all the stuff that you can STD from AOL."
Finding a lack of foundation, the court excluded the evidence. The court ruled, "Your . . . motion to have that admitted is denied, to have any testimony about it is denied because there is lack of foundation. If that information was available at the motion for new trial several years ago for [defendant], if anything could have been proven somebody would have done [it] . . . [Y]ou have experts and the D.A.s have."
The People assert that Defendant forfeited the claim that the exclusion of J.C.s testimony constituted a violation of his constitutional rights to due process and to present a defense. The People note that Defendant did not make such claim in the trial court. We need not reach the question of whether Defendants claim was forfeited. (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6, disapproved on other grounds in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2.) Assuming, without deciding, that Defendants constitutional claim was preserved, it lacks merit, as we explain herein.
C. Analysis
Contrary to defendants claim, he was not deprived of his Sixth Amendment right to present a defense when the trial court applied the rule of evidence requiring him to supply an adequate foundation (Evid. Code, § 403). As previously noted, "The decision whether foundational evidence is sufficiently substantial is a matter within the courts discretion. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 466.) Here, there was no abuse of discretion. As the People aptly note, defendant offered a hearsay statement that was allegedly posted on the Internet by A.G. There were no external or internal indicators of its authenticity or authorship. A.G. testified that she did not post such message. Although the evidence was relevant, i.e., it would have impeached A.G.s testimony, defendant was unable to show that A.G. was the person who had posted it on the Internet.
The People agree that if there were proof A.G. recanted her claim that defendant molested her, such evidence would have been relevant to her credibility. Nonetheless, A.G.s credibility is a collateral issue. The real issues involved the credibility of Jane Doe and her claim that defendant molested her. Given defendants failure to lay a proper foundation for the evidence, the trial court was within its power of avoiding a mini-trial on A.G.s credibility, which would have involved the need for expert testimony on why children who have been molested recant their claims, as well as A.G.s testimony from defendants previous trial concerning his molestation of A.G.
For the above reasons, we conclude the trial court did not abuse its discretion in excluding the testimony of J.C.
III. DISPOSITION
The judgment is affirmed.
We concur:
MCKINSTER, J.
GAUT, J.