Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF152452, Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Gerald J. Miller, 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, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Jesse Guevara, Jr., of committing forcible lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (b)(1)), committing non-forcible lewd and lascivious acts on a minor (§ 288, subd. (a)) and assault with intent to commit sodomy (§ 220). He was sentenced to prison for eight years and appeals claiming the trial court improperly denied his motion for sanctions against the prosecutor for misconduct and erred in excluding evidence. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant, whom the 10-year-old victim referred to as her uncle, on a different occasion each, touched the victim’s breasts, had her touch his penis and put his penis near her anus.
Issues and Discussion
1. Denial of Motion for Sanctions Due to Prosecutorial Misconduct
During an unreported conference between the trial court and counsel before trial began, the parties discussed the prosecutor introducing, pursuant to Evidence Code section 1108, evidence that on an occasion other than any of those alleged in the Information, but close in time to one of the charged acts, defendant approached the victim and her 16-or-17-year-old sister and suggested that they play a game. He had the girls close their eyes, then defendant put his hand on the sister’s leg. The sister became very frightened, nervous and embarrassed and began screaming at defendant and both girls ran upstairs. The prosecutor asserted that this constituted the misdemeanor of annoying/molesting a child under section 647.6. One of the charged acts involved defendant approaching the victim, while the latter was alone, suggesting they play a game, having her close her eyes, then grabbing her breast. According to defendant’s later motion for sanctions, the trial court heard argument on this and other in limine motions, reserved ruling on all of them, said it intended to review applicable case law, hear further argument and rule on the next court date.
There is neither a reporter’s transcript nor a clerk’s transcript for this date, thus there is no first-hand account of what transpired. Our account is based on statements made days later, in defendant’s motion for sanctions and during the hearing on that motion.
In their brief, the People assert that the molestation of the sister occurred “during one of the charged incidents” involving the victim. However, that is not what the prosecutor said below. Moreover, during argument to the jury, after mentioning the incident involving the sister, the prosecutor said, “... [The victim] said on a separate occasion the defendant played a game of hide and seek with her. Had her close her eyes and grabbed her breast.” The prosecutor elected, as count 1, this incident. Count 2, according to the prosecutor, occurred when defendant sodomized the victim while telling her to pretend she was a robot. The prosecutor elected as count 3 the incident when defendant grabbed the victim’s hand and placed it on his penis. None of these occurred during the incident involving the sister.
The prosecutor then texted defense counsel, saying, “F[YI. I]f you fight [t]o keep out [the] sister[’s] molest[ation by defendant] and [the] judge excludes it [I] will probably dismiss [the case] and refile and add [a count alleging the] sister as a victim and add a multiple victim allegation [which makes defendant subject to a] life [term].” According to her moving papers, defense counsel replied to the prosecutor, “It’s a thigh touch. I hope [you’re] kidding.” The prosecutor replied to her, “I used my discretion not to file [the count involving the sister] to begin with. Now [the] judge is excluding [the evidence of the molestation of the sister in this case] and he shouldn’t.... I may [n]ot file [the] mult[iple] victim allegation but [I] will file th[e] count [involving the sister].”
Four days later, defense counsel brought a motion for sanctions due to prosecutorial misconduct, based on the prosecutor’s text messages to her. Defense counsel alleged that the prosecutor had put her in a position of having to abandon her argument against admission of the evidence of the molestation of the sister in this case rather than have defendant charged with molesting the sister. Defense counsel contended that this denied her the ability to effectively represent defendant.
At the hearing on the motion, defense counsel overstated her position, thusly, “[The prosecutor] asserted... [that] he will retaliate... by alleging an allegation that is clearly not supported by the evidence....” However, she did concede that, “If [the prosecutor] felt there were grounds to amend the Information, he was certainly free to do that at any point up to trial.” The prosecutor pointed out that he could amend the Information even during trial. He also pointed out, and defense counsel agreed, that it was not the act of defense counsel arguing that evidence of the sister’s molestation be excluded from this trial, but the trial court’s ruling that it would be excluded, that would trigger his charging defendant with molesting/annoying the sister. The prosecutor did not say that he intended to file the multiple victim allegation that would subject defendant to a life sentence.
The trial court denied the motion for sanctions, saying, “... I don’t see how this is interfering with [defendant’s] rights.... Anyone knows that... the prosecution can dismiss at any time and re-file the charges.... [I]t happens frequently.... [¶]... [¶] It’s not unusual and it’s certainly not illegal. The law allows that to happen and so the prosecutor has a discretion, which is sanctioned by the legislature.... [¶]... [I]t appears to be the policy of the [district attorney’s] office to rigorously prosecute these people to the fullest extent that they’re allowed and... they take their responsibility seriously. [¶]... [¶]... I don’t see what the prosecutor’s statements add other than to state what [defense counsel] must have known from the very beginning that [the prosecutor] can do.... I think you would have to say, [“Y]eah, he can do that and, yeah, he might.[”] And so [defense counsel] ha[s] to do what [she] ha[s] to do....” “Any time you make a motion you have to decide what-if I am successful, what are they likely to do or what could they do and is that in my best interest or is it better to let sleeping dogs lie?... [¶] [The prosecutor p]ointing out the obvious is not changing anything, so I don’t believe that this in any way interferes with [defense counsel’s] representation of [her] client.”
The parties later argued about the admission of evidence that defendant touched the sister. Defense counsel conceded that the victim could testify as to her observations of the incident. Counsel, however, asserted that the sister’s position was that defendant never molested her. She predicted that the sister would testify that she and the victim sat on the couch, closed their eyes to pray, then the sister ran upstairs. Counsel added, “[I]f [the victim] took that [incident] differently than her sister did, then that’s... relevant. But I think the sister coming in and stating, ‘He never molested me, but he touched me on my legs, ’ I think it’s irrelevant. I think it’s redundant. I think it’s prejudicial and it has absolutely nothing to do with 1108 because... the sister remembers... [defendant] saying I am going to close my eyes so we can pray and touching her on the leg. And she actually makes the statement, ‘He never tried to molest me.’” The trial court ruled that both the victim and her sister could testify about the incident. Defendant was never charged in this case with molesting/annoying the sister.
Defendant challenges the trial court’s denial of his motion for sanctions citing Blackledge v. Perry (1974) 417 U.S. 21, North Carolina v. Pearce (1969) 395 U.S. 711, overruled on other grounds in Alabama v. Smith (1989) 490 U.S. 794, and Barajas v. Superior Court (1983) 149 Cal.App.3d 30, cases in which a prosecutor did something to a defendant in retaliation for that defendant exercising his constitutional rights, which act resulted in some detriment to the defendant. The problem with applying these cases here is that the prosecutor did nothing to defendant as a result of his attorney arguing that the evidence concerning the sister be excluded and defense counsel went ahead with her plan to argue that the evidence should be excluded. Therefore, defendant suffered no diminution in representation and no other harm as a result of the prosecutor’s text messages to defense counsel.
Barber v. Municipal Court (1979) 24 Cal.3d 742 and Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow), on which defendant also relies, are similarly unhelpful. In Barber, after defendants were told that a codefendant, who had been represented by common counsel and participated in defense strategy discussions, was actually an undercover police officer, they became paranoid, reluctant to speak at meetings with defense counsel, distrustful of each other and distrustful of employees of defense counsel, the result of which was a substantial impairment of their ability to assist in their own defense. (Barber at p. 750.) No such impairment occurred here.
In Morrow, the prosecutor had an investigator listen in to a conversation between defense counsel and the defendant. (Morrow, supra, 30 Cal.App.4th at p. 1255.) The appellate court held, “‘Where... [as here] the state has engaged in misconduct, the burden falls upon the People to prove, by a preponderance of the evidence, that sanctions are not warranted because the defendant was not prejudiced by the misconduct. [Citations.]’ [Citations.]” (Id. at p. 1258.) First, both below and here, defendant failed to demonstrate that the prosecutor engaged in misconduct merely by telling defense counsel something she already knew or should have, i.e., that he was free at any time before and during trial to charge defendant with molesting/annoying the sister and that he would do so if the trial court ruled against him on the in limine motion. Moreover, as we have already concluded, there was no prejudice.
2. Exclusion of Evidence of Prior Allegation by Victim against another Family Member
Before trial began, the prosecution moved to exclude evidence concerning a possible molestation of the victim by another uncle. The People represented that the victim had not made any statements confusing the two alleged perpetrators, and the types of acts the two men allegedly committed were distinguishable from each other.
At a hearing on the motion, defense counsel represented to the trial court that the victim had told an officer involved in this case that her other uncle had pushed her onto a bed, kissed her on the lips, tried to make out with her, tried to put his fingers inside her, put his hands on her vagina over her clothing then put his hands down her pants and on the top part of her pubic area. Defense counsel alleged that this story was false because this uncle had not been charged in connection with it, despite it having been investigated. Counsel also asserted that statements the victim made to her investigator were inconsistent with statements the victim made during an RCAT interview in that she told the former that there was no skin-to-skin contact between her and this uncle. Counsel said she did not know where this uncle was. She asserted that the evidence was admissible to impeach the victim’s credibility.
Therefore, defendant’s assertions, in his briefs, that the evidence was also admissible as independent evidence that no molestation occurred, are irrelevant as this was not the basis upon which he sought admission below. (Evid. Code, § 353.) Moreover, the only authority defendant cites in support of this proposition, People v. Hurlburt (1958) 166 Cal.App.2d 334, 339, 340 (Hurlburt), is heavily dependent on attitudes towards young child abuse victims that are not longer valid. For the same reason, we reject defendant’s argument that we should follow Hurlburt and ignore People v. Tidwell (2008) 163 Cal App.4th 1447 (Tidwell).
The prosecutor argued that the fact that charges had not yet been filed against this uncle did not mean that the acts did not occur, as reported by the victim. The prosecutor said that the victim’s statements were not contradictory-that her assertion that there had been no skin-to-skin contact did not conflict with her statement that he put his hand on the top part of her pubic area because she did not say his hand was on her pubic area. He further argued that the other uncle’s molestation of her was irrelevant to this case because, according to the victim, each man engaged in different kinds of touching of her, suggesting she was not confusing the two.
Defense counsel asserted that the victim’s descriptions of where, when and how the molestation involving the other uncle happened were contradictory, but she did not go into specifics.
The trial court observed that under Evidence Code section 782, evidence of the victim’s sexual activity is admissible to attack her credibility only if the defense files a written motion setting forth the evidence and explaining how it is admissible. The court stated that such a motion had not been authored by the defense, but it was not basing its ruling on this fact because such a motion could be written. The court stated that a false accusation of any crime by a victim is relevant, but the defense had not demonstrated that the victim’s story concerning the other uncle was false. The trial court concluded that the fact that the other uncle had not been charged proved nothing about the truth or falsity of the victim’s story because there could be a variety of reasons, apart from soundness of the story, why prosecution had not taken place. The court observed that the defense had not offered any other evidence of the falsity of the victim’s statement. Therefore, the court said the only way the defense could prove the falsity of the victim’s story would be to get the other uncle to testify and have two trials within this trial-one concerning the acts alleged against defendant, and the other concerning the alleged acts by the other uncle. The court remarked that the defense did not know where this uncle was. The court also observed that it would be obligated to advise this uncle, should he produce himself to testify, that he could refuse to answer questions that might tend to incriminate him and to offer to appoint him counsel, whom, the court predicted, would advise the uncle not to testify.
Later, after trial began, defense counsel informed the trial court that she remembered that the other uncle had been interviewed twice by the police, which interviews had been recorded, and on both occasions he denied having molested the victim. The trial court concluded that this additional information would not cause it to change its mind about the admissibility of the evidence.
Appellate counsel for defendant summarizes the foregoing as follows, “The trial court denied the request, stating among other things that the only basis for introducing such evidence was to defeat [the victim’s] credibility, and that [defendant’s] request violated Evidence Code section 782[.]” This is a completely inaccurate summary of the trial court’s ruling. Later in his brief, appellate counsel for defendant correctly states, “[T]he trial court does not appear to have based its decision on its claim that [defendant] failed to comply with Evidence Code section 782....” Tidwell, supra, 163 Cal.App.4th at page 1456 held that 782 is inapplicable to evidence that the victim falsely accused another of a sex crime introduced to impeach the victim’s credibility.
As to the possibility that the victim’s statements about what transpired between her and the other uncle were contradictory, the court observed that any set of conflicting statements the victim ever made about any subject could be introduced to impeach her credibility, but the trial had to be limited to inconsistent statements she made about the subject matter of her testimony, which did not involve the other uncle. Therefore, the court ruled that the evidence was inadmissible.
In attacking the trial court’s ruling, defendant here relies on cases he cited below. Specifically, in Hurlburt, supra, 166 Cal.App.2d 334, the appellate court reversed a conviction where defense counsel was prohibited from cross-examining the victim or introducing evidence concerning charges of acts she had made against other men which were identical to the acts she alleged the defendant committed and “which charges the [victim] had admitted were false or were proved to be false.” (Id. at pp. 335, 337.) The Hurlburt court cautioned, “While it frequently has been recognized that charges of this type are easy to make and hard to disprove, it should also be noted that charges that the child prosecutrix has lied about such matters in the past can also be easily made. The courts should be vigilant in seeing to it that the privilege of cross-examination here approved should not be abused.” (Id. at p. 343, italics added.) The fact that the victim’s prior accusations towards other men in Hurlburt were either admitted by her to be false or proven to be false renders its holding inapplicable to this case.
In People v. Burton (1961) 55 Cal.2d 328 (Burton), the Supreme Court declared, without providing any analysis and by simply citing Hurlburt, that defense counsel asking a child victim whether anyone else had done to her what she alleged the defendant had done “might have been preliminary to a proper showing that the child had made false charges against other men [citation]....” (Id. at p. 344.) Burton is not authority that such evidence is admissible absent proof of the falsity of the prior accusation.
Defendant also relies on People v. Burrell-Hart (1987) 192 Cal.App.3d 593 (Burrell-Hart). Therein, the victim had had a dispute with the defendant, and thereafter accused him of raping her. (Id. at p. 596.) The defense sought to introduce evidence that the victim had previously had a dispute with another man, who she subsequently accused of attempting to rape her. (Id. at p. 597.) In addition, while the victim reported to fellow employees that this later man had attacked her, she did not say that he had tried to rape her and during the hearing on the admission of this evidence, the victim denied that she had accused him of attempting to rape her. (Id. at pp. 597-598.) Defense counsel unsuccessfully attempted to cross-examine the victim about the alleged prior attempted rape in an effort to show that the victim had motive to lie about the defendant, due to the dispute between them. (Id. at p. 597.) The appellate court concluded that the trial court erred in refusing to allow the cross examination because “[t]he evidence... could support a finding that [the victim], having previously made a false accusation of... threatened sexual abuse against a man with whom she had fought would under similar circumstances herein have a motive to testify falsely against defendant with whom she admittedly had a prior disagreement or fight....” (Id. at pp. 597-598.) In contrast to Burrell-Hart, the evidence here was not being admitted to show the victim’s motive and this victim did not testify that the other uncle had not molested her.
Defendant asserts that the holding in Burrell-Hart “belies the trial court’s characterization of Hurlburt and Burton... as ‘older’ cases involving an ‘astounding’ result.” First, Burrell-Hart was not cited to the trial court. Second, Burrell-Hart was decided on a basis very different from the basis used in Hurlburt, and, therefore, Burton, which merely cited it with no additional analysis.
In Tidwell, supra, 163 Cal.App.4th 1447, 1457, the appellate court held that a prior false accusation of sexual molestation is relevant on the issue of the victim’s credibility, but “[d]efendant’s problem in showing that the trial court abused its discretion in excluding the evidence concerning the prior rape complaints is that it is not readily apparent that those prior complaints were false. While a prior false complaint establishes an instance of dishonesty..., a prior complaint not proven to be false has no such bearing. [¶]... [In] []People v. Bittaker (1989) 48 Cal.3d 1046, 1097... [t]he... [Supreme Court] stated: ‘... The value of the evidence as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two... past sexual incidents which never reached the point of formal charges. Such a proceeding would consume considerable time, and divert attention of the jury from the case at hand.’... [¶] The same is true here. Although there is some evidence that [the victim] made inconsistent statements, there was no conclusive evidence that her prior rape complaints were false.... In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced [propensity] evidence [suggesting that the accusations were not false].... We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the victim’s] prior complaints.” (Id. at pp. 1457-1458.)
Defendant’s attempt to distinguish Tidwell from this case on the basis that the defendant there claimed that the victim consented to having sex with him is meritless. Admission of evidence of the prior allegedly false accusations of rape in Tidwell was being sought on the basis, as here, that they were relevant to the victim’s credibility. (Tidwell, supra, 163 Cal.App.4th 1447, 1457.)
Similarly, defendant here does not persuade us that the trial court abused its discretion, that is, acted unreasonably, in excluding the evidence. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) The facts that the other uncle had not yet been charged with an offense against the victim and he twice denied molesting the victim to the police is, at best, very weak evidence that her story about him was false.
Disposition
The judgment is affirmed.
We concur: MILLER, J., CODRINGTON, J.