Opinion
F070530
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO MURILLO VILLEGAS, Defendant and Appellant.
William Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF295960)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. William Whaley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
It is undisputed that appellant Ernesto Murillo Villegas had sex with the victim in this case, Anne H., during a New Year's Eve party. However, it was disputed whether the sex was consensual and, if not, whether Anne was intoxicated or unconscious. The court instructed the jury that it could find appellant guilty of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3); count 1) or rape of an unconscious person (§ 261, subd. (a)(4); count 2), but not both. The jury convicted him of rape of an intoxicated person (count 1) and he received a three-year prison sentence.
To protect the victim's privacy, we use her first name and last initial, and, thereafter, only her first name. Our use of her first name is not intended as a sign of disrespect. (Cal. Rules of Court, rule 8.90(b)(4).)
All future statutory references are to the Penal Code unless otherwise noted.
Appellant raises four issues on appeal. First, he contends the trial court erred in permitting the admission of his police interview, which he claims was coercive. Second, he argues the court erred in prohibiting defense counsel from impeaching Anne at trial with a text message she had sent to a witness; respondent concedes error on this issue but asserts it was harmless. Third, he maintains the court erred in prohibiting the admission of evidence that Anne had sex with another man about 36 hours after this party, which he contends was relevant to attack her credibility. Finally, he contends reversal is required based on cumulative error. We find either no error and/or no prejudice for each of these claims. We affirm.
BACKGROUND
I. The Relevant Trial Facts.
A. The New Year's Eve Party.
The crimes charged in this case took place at a New Year's Eve party that began just before midnight on December 31, 2013, in a residence in Visalia, California. Approximately 15 to 20 people attended, including appellant and Anne. She was temporarily staying at this residence while visiting the party's hostess, Jessica Montes. Before this party, Anne had never met appellant.
Jessica Montes and Giovanni Montes, a party attendee, are cousins. To avoid confusion, we refer to these witnesses by their first names. No disrespect is intended.
B. Anne and appellant become intoxicated.
Starting around 11:45 p.m., Anne began drinking shots of tequila, which she continued throughout the night. She drank anywhere from six to 10 shots of tequila, but she admitted at trial that she could not remember with precision how much she drank. Appellant drank beer at the party and he became intoxicated. He was seen vomiting at one point.
C. Anne is seen interacting with appellant at the party.
Two defense witnesses, Thomas (Tommy) Valadez and Giovanni Montes, attended the party. They both testified at trial that they saw appellant interact with Anne at the party. Valadez said that, at some point during the party, he went outside to smoke with Anne and appellant. Valadez went inside while they remained outside together.
Giovanni previously worked with Anne. At trial, he recalled seeing Anne giving appellant "mixed signals" during this party. She danced with appellant in a very provocative way. She would "stick out her butt" and make eye contact with him. According to Giovanni, she tried to get appellant's attention.
D. Anne has consensual sex with Valadez at the party.
At some point between 2:00 and 3:00 a.m., Anne had consensual sex with Valadez. Their sexual encounter lasted about 10 or 20 minutes and took place in a bedroom. During this encounter, Anne was aware of what was happening. Valadez used a condom. When finished, both Anne and Valadez rejoined the party. She continued to drink an unknown amount of alcohol.
Anne's sexual encounter with Valadez is not the subject of appellant's claim on appeal that the trial court erred in excluding evidence of Anne's sexual encounter with another man. Anne's other sexual encounter, which we discuss in greater detail later in this opinion, occurred on or about January 2, 2014.
At about 4:00 a.m., Anne fell while dancing at the party. She began crying. She realized that she was intoxicated and she decided to go to sleep. She went to the back of the residence and put on pajamas. She retrieved a sleeping pad, which she had brought with her, and she placed it on the floor in a bedroom. According to her trial testimony, she fell asleep on the pad while lying on her side.
E. Appellant is seen having sex with Anne.
According to Anne's trial testimony, at some unknown time after she went to sleep, she became aware of someone lying behind her on the pad. At that point, she also realized that she had urinated while sleeping. She felt confused and embarrassed. She explained at trial that she sometimes wets herself while sleeping if she is too intoxicated to wake up.
As Anne lay there, she felt a penis penetrate her vagina. Around the same time, a party attendee, Cindy Post, walked into the bedroom to retrieve her purse. Post turned on a light. She saw appellant lying behind Anne "in a spooning position" and it looked like he was having sex with her. Post could see that Anne was not wearing any underwear. Anne's eyes were closed the entire time and she seemed unresponsive. The only sound Anne made was a "subtle" or "vague" type of groan or moan, which Post described as a "drunk" groan. At trial, Post could not say whether or not Anne's groan sounded sexual in nature.
Valadez and Post are siblings.
Post yelled at appellant to get off of Anne and leave the room. Post explained at trial she got mad once she realized Anne appeared asleep. She believed appellant "was taking advantage of her." Post knew Anne had been drinking that night and she had gone to bed. Post described it as "a weird thing" she saw.
After Post yelled, appellant put his hand down to his groin area "and looked like he was adjusting himself or putting something right." According to Post, despite her loud yells, Anne made no movements.
At trial, Anne explained that, after she felt the penis enter her, she next remembered being woken up by Post, who was saying "something like no, stop. What are you doing? Get out of here." The lights turned on and Anne saw appellant behind her. According to Anne's trial testimony, appellant then asked her, "Would you like to have sex?" She said no and he left the bedroom. She admitted to the jury that her memories of the events were "vague and fuzzy" and she testified that she passed out again. She did not remember anything more for the rest of the night.
The next day, Anne saw condom wrappers in the bedroom. She assumed that Valadez had disposed of his condom wrapper and she told the jury that she did not know if appellant used those condoms.
At trial, Anne denied ever telling appellant that she wanted to have sex with him. She also denied that he ever asked her before doing anything. She denied ever flirting with him. She admitted on cross-examination that she had initially thought the person lying next to her was Valadez. She said appellant asked her to have sex "after everything had already happened."
F. Appellant is escorted away from Anne.
After yelling at appellant, Post left the bedroom. She told her boyfriend, Iran Munoz, what she saw and she told Munoz to tell appellant to leave the bedroom. According to Munoz, Post told him that appellant was on the floor with Anne and Post was not sure if Anne knew what they were doing but "some activity" was occurring. Post told him that appellant was taking advantage of Anne.
Munoz was acquainted with appellant. He went in the bedroom and saw appellant standing with his pants down to his ankles. Appellant pulled up his boxers and pants. Munoz asked him what he was doing and he told appellant to get out. According to Munoz, appellant appeared embarrassed, confused, and drunk. Anne continued to appear unresponsive. Appellant immediately followed Munoz out of the bedroom. Munoz asked him what he had been doing, but appellant did not answer.
G. The following day, Anne discusses what happened with various friends.
The following day, Anne spoke with various party attendees about what happened the night before. Four of these witnesses testified at trial, and they described Anne's statements the following day. All four of these witnesses (Post; Giovanni; Alia Hernandez; and the party's hostess, Jessica) consistently told the jury that Anne had initially believed appellant was Valadez when he lay behind her. Post and Giovanni also provided testimony that called into question when appellant had asked Anne to have sex.
Appellant called Giovanni to testify in this matter.
When appellant had sex with Anne, Hernandez had been passed out on the bed in the same bedroom. Hernandez neither saw nor heard anything.
Appellant called Jessica to testify in this matter.
According to Post, Anne said she must have thought appellant was Valadez. Anne told Post that she had heard appellant say, "Do you want to fuck?" and she had agreed. Anne thanked Post for "saving" her "from getting raped." Post told the jury that, based on her conversation with Anne, she believed appellant had asked Anne if she wanted to have sex before it occurred. In addition, Post told the jury that Anne had texted her saying she might be in love with Post's brother, Valadez. Anne had asked Post for Valadez's phone number. Anne asked Post not to tell Valadez about what happened because she did not want him to think she had invited appellant into the room with her.
According to Giovanni, Anne reported that appellant went into the bedroom while she was sleeping or lying down. Appellant asked her if she wanted to have sex, and she said yes. Anne had believed that appellant was Valadez. According to Giovanni, Anne recalled Post coming into the room and Post "caught the two of them" having sex. Anne told Giovanni that she had been drunk.
According to Hernandez, Anne told her that she was "barely going to sleep" when she had "felt somebody come in and hug her from behind." According to Hernandez, Anne said she had allowed appellant to sleep with her because she had thought he was Valadez. Anne did not want Valadez to learn she had sex with appellant. According to Hernandez, Anne was texting Valadez the following day, and he was not responding to her.
Finally, according to Jessica, Anne said she had sex with appellant because she had believed he was Valadez. Anne was worried that Valadez would find out that she had had sex with appellant. Anne did not want Valadez to find out because "she was hoping to get together" with him. Anne asked Jessica if she thought Valadez already knew.
At trial, Anne told the jury that she did not recall telling Hernandez that she wanted to have sex with appellant. She also told the jury that she did not recall her conversation with Post. After Giovanni testified, Anne was recalled to the witness stand for rebuttal testimony. She denied ever telling Giovanni that appellant had asked her if she wanted to have sex and she said yes. Anne also denied that she ever told Giovanni that Post had walked in on her and appellant and "caught" them.
H. Anne contacts law enforcement and she tells Valadez what happened.
On January 1, 2014, Anne contacted police to report appellant's actions. She contacted police "late in the evening." She "had spent all day kind of trying to decide" what she wanted to do. On or about January 2, 2014, a police officer contacted Anne at Jessica's residence.
This officer did not testify at trial.
On or about the same day, Anne contacted Valadez via text message. She told Valadez what had happened with appellant.
I. Anne sends appellant a text message.
On or about January 3, 2014, Anne sent appellant one text message. She got appellant's phone number from Jessica. Anne's text message to appellant was admitted into evidence as People's exhibit 7. The message, complete with abbreviated words often seen in texts, reads as follows:
"This is [Anne] if u don't know who I am think real hard. I need to know if u used a condom when u fucked me and if u have ever been tested for stds or HIV. Thanks for putting my health and well being in danger. Hope u learn ur lesson after this. You cannot treat women the way that you treated me. We were not made to be taken advantage of or used. Please respond and answer the questions I asked you. Also I had to go and take the plan b pill just in case. Cus I don't want to have ur fucking baby. So if there is any way you can get me the 50 I had to spend on that shit. That would be great. It's not my responsibility, it's yours mother fucker!"
J. Police interview appellant.
Detective Daniel Ford was assigned this investigation on January 16, 2014. He spoke with Post multiple times, and he met with Munoz, Hernandez, Jessica and Anne. At no point did Post tell him about Anne's story that appellant had asked to have sex with her and she said yes. Post also never told him or showed him any text messages from Anne saying that Anne was in love with Valadez. At no point in his investigation did anyone tell Ford that appellant may have been seen dancing with Anne at the party.
On February 28, 2014, Ford made contact with appellant. Without arresting him, Ford drove appellant to the police station for an interview. At the station, Ford read appellant his Miranda rights and Ford asked him questions about the events. Their conversation was recorded and played for the jury.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
This conversation is the subject of appellant's first appellate issue and we provide greater detail of this interview later in this opinion.
During the interview, appellant admitted that he had placed his penis inside Anne's vagina. He agreed that he had made a mistake that night, and he agreed that Anne had been passed out and was not aware of what was happening. At no point did appellant tell Ford that Anne had flirted with him. At no point did appellant tell Ford that Anne had asked for sex.
At the time, appellant could not remember Anne's name and he told Ford that he had not been in his right state of mind.
During the interview, appellant said he would write an apology letter to Anne. He did so, which was admitted into evidence at trial as People's exhibit 8. Appellant started five different drafts of his letter before completing the final version. While writing his drafts, appellant asked Ford for advice. Ford gave him ideas, including a response to Anne's concerns about the pregnancy test and STD's. Ford also suggested saying "that you didn't want this to happen" or that appellant was "taking accountability" for his actions. Finally, Ford suggested that appellant could say "I took advantage of you while you were unconscious, maybe. Something like that. Again, those are—you need to put it in your words though."
At one point, Ford said, "You understand that, you know, when a person is passed out they can't consent and that's not acceptable, right?" Appellant agreed.
The final version of appellant's letter reads as follows:
"Dear [Anne,] I understand you probably hate me but everyone makes mistakes and I made a mistake by not thinking rationally so I apologize for [the] night of [New Year's]. To be honest I hope you can forgive me for what I put you through because [it's] not who I am. I am a fun nice outgoing guy just like my brother. About the pregnancy test[,] plan b[,] and the std test[,] I am willingly volunteering to pay for the debt of your med bills. Maybe if you could find it in your heart to please drop the charges I will be forever grateful." Appellant signed the letter.
K. Anne's reputation for drinking.
Jessica told the jury that she had previously worked with Anne. During the previous Thanksgiving holiday, they had spent time together. On that Thanksgiving, Anne drank most of a bottle of tequila by herself.
DISCUSSION
I. Appellant's Statements During His Police Interview Were Voluntary.
Appellant contends that his statements to detective Ford were involuntary. He claims that Ford coerced him using promises of leniency, deception, and psychological tactics. He argues the admission of his statements at trial violated his due process rights, were prejudicial, and require reversal of his convictions.
A. Background.
We provide greater detail of appellant's police interview. Ford and another officer initially made contact with appellant at his residence. Ford asked appellant to accompany them back to the police station. Appellant agreed but noted he had to go to work later that day at a gas station. On the drive to the police station, Ford told appellant that he was not under arrest but he was being detained.
At the police station, Ford told appellant that they were going to discuss what happened on New Year's Eve at the party appellant had attended. Appellant denied being at a party, claiming he had been with family in Dinuba. The following exchange occurred:
"FORD: Okay. Well, let me read you your rights, okay? And we'll talk about that and then, uh, we'll get your family's information, but just so you know, I have four photo ID's saying you were there. I have a victim saying you were there. I have text messages to your phone number that you didn't respond to. I have a lot of evidence, okay? And it's one of those things, I'm just going to explain it to you. A mistake was made, but I don't think it's a mistake that needs to haunt you for the rest of your life.
"[APPELLANT]: Yes, sir.
"FORD: Okay? We'll figure it out from this point on, okay?
"[APPELLANT]: Yes, sir.
"FORD: But it's really important you tell me the truth.
"[APPELLANT]: Yes, sir.
"FORD: All right? Okay. Because you're detained right now, and not free to leave, I am going to read you your [Miranda] rights, okay?"
Ford read appellant his Miranda rights, and appellant said he understood them. Ford said appellant's story about being in Dinuba was not true. Appellant admitted he went to the New Year's Eve party after he was with family. He said "things got a little too out of hand" and people had been drinking too much. He admitted having sex with someone while wearing a condom, but he could not remember her name. He had not been in his "right state of mind."
Ford asked appellant if he made a mistake that night. Appellant agreed, and Ford said that was the honesty he wanted. Appellant denied that Anne had been passed out, saying "she was still conscious, sir." The following exchange occurred:
"FORD: Well, she was conscious, but she was passed out. This is where that truth comes in. Remember? I was—
"[APPELLANT]: Yeah.
"FORD: Well, let me explain it to you this way. Whenever there's a court proceeding or something like that, one of the things the judge actually gets to take into account—
"[APPELLANT]: Yeah.
"FORD: —is whether or not the person takes accountability for their actions. Okay?
"[APPELLANT]: Yes, sir.
"FORD: Whether or not they acknowledge that they made a mistake—
"[APPELLANT]: Yeah.
"FORD: —and did something wrong.
"[APPELLANT]: Mm-hmm.
"FORD: Okay? That's actually part of the guidelines, okay?
"[APPELLANT]: Yes, sir.
"FORD: You need to be honest.
"[APPELLANT]: Yes, sir. I will be honest.
"FORD: Okay. Because I have three people—
"[APPELLANT]: Yeah.
"FORD: —that were in that room at some point in time and walked in on what was happening.
"[APPELLANT]: Yeah.
"FORD: They saw that she was passed out and unconscious of what was going on. Okay? They saw that. They saw you getting up, putting your boxers on. They saw you having sex with her. Okay? That happened, all right? Now, what I want to know is whether or not you're a cold-hearted rapist—
"[APPELLANT]: Oh, no.
"FORD: —or if you just made a dumb mistake because you were drinking.
"[APPELLANT]: No. I just made—I made a dumb mistake, sir."
At trial, the jury learned that only two witnesses walked in, i.e., Post and Munoz.
Appellant said he had already told his brother that he would apologize to Anne. Ford said he would let appellant write a letter to her. Appellant said he had tried to talk to Anne but he did not want to because everything she said was negative. Appellant admitted to Ford that he had sex with Anne while she was passed out. She was not aware of what was going on, and appellant admitted that he knew it was wrong. Appellant said he had sex with Anne only for "a couple seconds" before "they" walked in. He agreed that his penis was in her vagina. He agreed Anne's vagina was "a little bit dry at first" and it was "kind of hard" to enter her.
Appellant told Ford that he was 19 years old and he had been a virgin before this encounter. He said he was "a stay-at-home guy" who played video games. He said he had been drinking too much that night, he threw up, and he had still been feeling the effects of alcohol. He said he was "not like that" and he agreed to write a letter to Anne.
Appellant asked if he could call his mother. Ford told him to wait "a sec, but if you want to talk to her before, since you're being so cooperative, I've got no problems with that. But you said you wanted to write a letter, right?" Appellant agreed, and Ford gave him some paper and a pen. Appellant began writing and he complained that he was having trouble getting his thoughts on paper. Ford told him, "It looks really good to me." Appellant complained that "it's not myself, you know?" Ford said appellant could make his phone call but asked if appellant wanted "another crack at writing that letter?" Appellant said, "Yeah."
Ford gave appellant a cup of water. Appellant complained that "things" were running through his head. Ford said it was good that appellant was taking accountability and people would see that. Ford told him that he did not "have to do this" and this was appellant's choice. Appellant agreed and said he felt like he should do this. He said he should have bought "Plan B" for Anne and Ford told him that he could write that he was willing to reimburse her. Ford noted that he could not tell appellant what was going to happen during the court process.
Appellant later complained that he needed to rewrite his letter because it was "really sloppy." Appellant started to ask Ford for help on what he should say and Ford told him that he could not tell appellant what to write. Appellant said he wanted to say more than he was sorry, and he wanted a genuine letter. With Ford's suggestions, appellant rewrote his letter. Ford read it out loud. The interview concluded shortly thereafter.
B. Standard of review.
A criminal defendant has both substantive and procedural due process rights, which means that a vital confession may be admitted at trial "only if it is subjected to screening in accordance with correct constitutional standards." (Rogers v. Richmond (1961) 365 U.S. 534, 544-545.) "Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Linton (2013) 56 Cal.4th 1146, 1176.)
The prosecution bears the burden of establishing by a preponderance of the evidence that a confession was voluntary, and that depends on the totality of the circumstances. (People v. Linton, supra, 56 Cal.4th at p. 1176.) Where, as here, the facts surrounding an admission or confession are undisputed because the interview was tape-recorded, we independently review whether the confession was admissible at trial. (Id. at pp. 1176-1177.)
C. Analysis.
Appellant argues that Ford lied about the number of witnesses who saw him have sex with Anne. He also contends he was promised leniency from the court if he admitted that Anne was unconscious, which he claims induced him to confess. He notes that Ford offered him two choices, whether he was a cold-hearted rapist or somebody who made a dumb mistake. He maintains that one choice was morally less reprehensible than the other, which increased the coerciveness of the interrogation. He relies primarily upon three opinions to establish error: (1) People v. Johnson (1871) 41 Cal. 452 (Johnson); (2) People v. Hogan (1982) 31 Cal.3d 815 (Hogan), overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836; and (3) In re Elias V. (2015) 237 Cal.App.4th 568 (Elias).
We find appellant's arguments and his cited authorities unpersuasive. Based on our independent review, appellant's confession was not coerced. As such, appellant's police interview was admissible against him in his trial.
1. The relevant law regarding coercion.
To determine whether coercion occurred, we must look at all of the surrounding circumstances. (People v. Bradford (1997) 14 Cal.4th 1005, 1041; see also People v. Neal (2003) 31 Cal.4th 63, 68 [all circumstances, including officer's deliberate violation of Miranda, were used to determine whether statements were involuntary].) The issue is whether police brought influences upon the accused so that his or her will to resist was overcome. (People v. Thompson (1990) 50 Cal.3d 134, 166.) We must examine both the defendant's characteristics and the details of the interrogation. (Ibid.)
Both the United States Supreme Court and our high court have listed relevant factors to examine. Those factors include (1) the defendant's age or maturity; (2) the defendant's level of education; (3) the defendant's level of intelligence; (4) the lack of any advice given to the defendant regarding his constitutional rights; (5) the length of the detention; (6) whether the questioning was repeated and prolonged; (7) whether physical punishment occurred, such as the deprivation of food or sleep; (8) whether any threats were used; (9) whether any direct or implied promises were made; and (10) whether police used deceptive tactics. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226; People v. Linton, supra, 56 Cal.4th at p. 1176; People v. Dykes (2009) 46 Cal.4th 731, 752.)
2. The circumstances surrounding appellant's police interview do not establish coercion.
Examining both appellant's characteristics and the details of this interrogation, it is clear that Ford did not bring influences upon appellant that overcame his will to resist. (See People v. Thompson, supra, 50 Cal.3d at p. 166.)
Ford advised appellant of his constitutional rights. At no point did appellant express any confusion about his rights and he never asked questions about the Miranda warnings. At 19 years old, although he was relatively young and he lived with his mother and four siblings, appellant was an adult and he held a job. Nothing in this record suggests that he suffered from low intelligence or that he did not understand the nature and circumstances of the interrogation. In any event, the Fifth Amendment only prohibits official coercion and is not concerned with moral and psychological pressures from other sources. (People v. Linton, supra, 56 Cal.4th at p. 1179.) There is no indication here that Ford may have "exploited any personal characteristics" of appellant to obtain a confession. (Ibid.)
Based on the report and recommendation of the probation officer, appellant had been living with his mother and four siblings when he was arrested.
Further, early in the interview, appellant denied attending this party, claiming he was with family in Dinuba on New Year's Eve. Only when Ford said he had a lot of evidence against him did appellant agree that he went to this party after the family event. Appellant's initial denial showed an attempt to provide misleading information. This suggests that appellant was in control of what information he wanted to provide. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 58 [a defendant's calculation on what information to provide does not demonstrate a will overborn by official coercion].)
Appellant underwent a very short detention and his interview was not lengthy. Although a portion of this detention occurred in the car ride to the police station, the total interview covers 21 pages in this record. Of these 21 pages, the first four pages involve Ford's contact at appellant's residence and their drive to the police station. During the short interview, Ford provided water to appellant. Nothing suggests that appellant needed sleep or food, and Ford's questioning was neither repeated nor prolonged. After appellant admitted his inappropriate behavior, most of the remaining interview was devoted to appellant drafting and rewriting his apology letter. The nature of Ford's questioning and the length of this detention do not establish that appellant's will was overborne. (See Schneckloth v. Bustamonte, supra, 412 U.S. at p. 226; People v. Dykes, supra, 46 Cal.4th at p. 752.)
3. It was not coercive for Ford to exaggerate about the number of witnesses.
We disagree with appellant's claim that Ford lied about the number of eyewitnesses in a way that established coercion.
Law enforcement may make deceptive comments during an interrogation without it crossing into coercion. (People v. Williams (2010) 49 Cal.4th 405, 443.) Deception does not undermine a suspect's statement unless the deception was reasonably likely to have procured an untrue statement. (Ibid.) Appellate courts have prohibited only those psychological ploys which are so coercive that they tend to produce statements that are both unreliable and involuntary. (Ibid.)
Here, Ford correctly told appellant he was seen having sex with Anne while she was passed out and nonresponsive. He was seen pulling on his boxers. Ford's representations were accurate regarding the state of evidence, which was later corroborated by Post's and Munoz's trial testimonies. Although Ford may have slightly exaggerated the number of witnesses against appellant, any slight deception about the number of witnesses was not reasonably likely to have procured an untrue confession under these circumstances. (See People v. Williams, supra, 49 Cal.4th at p. 443 [it is evident that police deception did not overcome the defendant's will].)
Further, based on the report and recommendation of the probation officer, appellant had some prior experience with law enforcement. He had two prior juvenile matters, one for misdemeanor disorderly conduct from public intoxication (§ 647, subd. (f)) and another for misdemeanor battery (§ 242). He also had an adult conviction for misdemeanor driving under the influence (Veh. Code, § 23152, subd. (b)). Appellant's prior experience with the criminal justice system further suggests that Ford's minor deceptions were not likely to produce unreliable self-incrimination. (See People v. Williams, supra, 49 Cal.4th at p. 443 [in light of the defendant's prior experience with the criminal justice system, officer's deception was not likely to produce unreliable self-incrimination].)
For the battery, appellant received only an admonishment letter because "mutual combat" had occurred.
4. Ford did not promise appellant leniency.
Appellant claims that Ford implied leniency to him during this interview. He points to Ford's statement that appellant's mistake need not "haunt" him for the rest of his life. Ford also told him that the judge can look at "whether or not the person takes accountability for their actions." We disagree that Ford made implied promises of leniency.
A confession may be deemed involuntary if police use direct or implied promises to extract it. (People v. Linton, supra, 56 Cal.4th at p. 1176.) If a defendant is made to understand that he might reasonably expect benefits in the nature of more lenient treatment either from the police, the prosecution or the court in consideration of making a statement, even a truthful one, such motivation renders any subsequent statement involuntary and inadmissible. (People v. Hill (1967) 66 Cal.2d 536, 549.)
Police officers, however, are permitted to point out benefits to a suspect which naturally flow from a truthful and honest course of conduct. "The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear. [Citations.]" (People v. Hill, supra, 66 Cal.2d at pp. 549-550.) Officers may properly point out that "a jury probably will be more favorably impressed by a confession and a show of remorse than by demonstrably false denials. 'No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.' [Citation.] Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth. [Citations.]" (People v. Williams, supra, 49 Cal.4th at p. 444.)
Here, Ford did not make any express or implied promises of leniency during appellant's police interview. In fact, Ford reiterated to appellant that he could not say what was going to happen in the court proceeding. Instead of offering promises of leniency, Ford urged appellant to tell the truth. It was permissible for Ford to point out that it would be better for appellant to confess and show remorse. Our Supreme Court has found no coercion when an officer urges a suspect to confess in order to look better in the face of overwhelming incriminating evidence. (People v. Williams, supra, 49 Cal.4th at p. 444.)
Moreover, Ford never represented that the police, the prosecutor or the court would grant appellant a particular benefit if he said what happened. (See People v. Hill, supra, 66 Cal.2d at p. 549 [promises of more lenient treatment make statements involuntary].) Instead, when appellant continued to deny that Anne had been passed out, claiming she was still conscious, Ford reiterated that he had three witnesses who "were in that room at some point in time and walked in on what was happening." These witnesses "saw that she was passed out and unconscious of what was going on." Ford asked if appellant was a "cold-hearted rapist" or if he "just made a dumb mistake" and appellant agreed he made a mistake. Appellant then admitted he had sex with Anne while she was passed out. Instead of any express or implied promises of leniency, appellant's confession was motivated by the overwhelming incriminating evidence against him.
5. Appellant's opinions are distinguishable and do not assist him.
We review the three opinions which appellant cites. These cases do not assist him.
First, in Johnson, supra, 41 Cal. 452, multiple defendants were in custody for stealing grain. A sheriff told them it was "no use for them to deny taking the property"; that sufficient evidence existed to convict them; and "it would go lighter with them" if they confessed. The defendants then confessed. (Id. at p. 454.) With limited analysis, the California Supreme Court determined it was "very clear" the sheriff's statements rendered the defendants' confessions involuntary because the sheriff induced the defendants to confess. (Id. at p. 454.) The high court noted that the defendants did not really confess but only told the sheriff about the grain "and did not deny taking it." (Ibid.) The defendants' "confession" was then repeated before a magistrate two days later. Johnson reversed the convictions and remanded the case for a new trial. (Id. at pp. 454-455.)
Here, unlike in Johnson, Ford did not make any implied or express promises of leniency to appellant. Instead, Ford implored appellant to tell the truth after confronting him with the known evidence. Further, Johnson, which was published in 1871, was decided more than 145 years ago and it does not address the many layers of complex jurisprudence that now exists in this area of law. Its sparse legal analysis carries little weight in light of current Supreme Court opinions. Johnson does not dictate reversal in this situation.
Second, in Hogan, supra, 31 Cal.3d 815, the defendant was convicted of murdering two victims. The case against him rested on his presence at the crime scene and other circumstantial evidence. (Id. at p. 820.) During multiple police interrogations, officers made implied promises that they would help the defendant if he confessed. (Id. at p. 838.) The Hogan court found that the defendant could have reasonably expected more lenient treatment if he confessed. (Id. at pp. 838-839.) Further, the officers repeatedly suggested to the defendant that he was unquestionably guilty and that he suffered from mental illness. (Id. at p. 843.) The officers made false representations regarding eyewitnesses that did not exist, along with other nonexistent evidence, and the defendant made statements that demonstrated he had begun to doubt his own sanity. (Id. at pp. 841, 843.) As such, Hogan could not conclude beyond a reasonable doubt that the defendant's "admissions were 'freely self-determined' as required by due process. [Citation.]" (Id. at p. 843.)
Here, unlike in Hogan, the case against appellant was not based on circumstantial evidence and Ford did not materially misrepresent the state of evidence against appellant. Appellant did not undergo multiple police interviews and Ford's questioning was not prolonged. Unlike in Hogan, Ford did not make implied promises that he would help appellant and nothing suggests that appellant could have reasonably expected more lenient treatment if he confessed. Finally, appellant did not make statements during his interview that suggested he had begun to doubt his own sanity. Hogan is factually distinguishable.
Finally, citing Elias, supra, 237 Cal.App.4th 568, appellant contends that Ford presented him with "false choices" that increased the coerciveness of the interrogation. He points to Ford's question whether appellant was a "cold-hearted rapist" or whether he had just made "a dumb mistake" because he had been drinking. We disagree that these questions were coercive or that Elias dictates reversal.
In Elias, officers interrogated a 13 year old who was suspected of committing a lewd and lascivious act upon a child under the age of 14 years. (Elias, supra, 237 Cal.App.4th at pp. 570, 574-575.) The suspect adamantly and repeatedly rejected an officer's assertions that he had touched the victim in an improper manner. (Id. at pp. 574-575.) At some point, an officer suggested that the suspect might have touched the victim's vagina because he found it exciting or just because he was curious. The suspect rejected the first suggestion but agreed he had touched the victim out of curiosity. (Id. at p. 575.) Elias noted that the officer used an "aggressive nature" and was persistent in questioning the juvenile suspect. (Id. at p. 583.) The officer made false representations about the evidence against the suspect, claiming witnesses saw the suspect touch the victim when no such evidence existed. (Ibid.) The officer threatened to subject the suspect to a lie detector test against his will. (Id. at p. 584.)
On appeal, the Elias court noted that the use of "false evidence" during police interrogation could cause vulnerable and naïve suspects to give false confessions. (Elias, supra, 237 Cal.App.4th at p. 584.) False evidence is forbidden in Great Britain and many European nations. (Ibid.) An officer can also use a "false choice" strategy to present a suspect with two scenarios, one of which is more morally reprehensible regarding the suspect's actions. (Id. at p. 586.) In its case, Elias determined that the juvenile suspect was motivated to give his inculpatory statements when offered two possible explanations for the sexual touching. The juvenile agreed to the more acceptable alternative that he was merely curious. (Id. at pp. 584-585.) The Elias court found that the officer's "accusatory interrogation was dominating, unyielding, and intimidating." (Id. at p. 586.) It found that the suspect's statements were involuntary based on a combination of his youth, the absence of any evidence corroborating the suspect's statements, and the likelihood that the officer's deception and overbearing tactics would induce involuntary and untrustworthy incriminating admissions. (Id. at pp. 586-587.)
Here, unlike in Elias, appellant was not a juvenile when interrogated. Ford did not make material false representations about the evidence and Ford did not threaten appellant with a lie detector test against his will. Ford did not subject appellant to an interrogation that was dominating, unyielding and intimidating. We disagree that the choices which Ford presented to appellant may have resulted in him giving a false confession. Elias is distinguishable from the present matter and does not dictate reversal.
Based on the totality of the circumstances, the prosecution met its burden of establishing by a preponderance of the evidence that appellant's confession was voluntary. We reject any claim that Ford brought influences upon appellant that overcame his will to resist. Nothing reasonably suggests that appellant may have confessed to a crime he did not commit because Ford slightly exaggerated the number of witnesses or said that appellant's mistake need not haunt him for the rest of his life. Both appellant's characteristics and the details of this interview establish that his confession was free of coercion. Accordingly, appellant's police interview was admissible at his trial and this claim fails.
Because appellant's statements to Ford were properly admitted at trial, we do not address his claim of prejudice.
II. The Trial Court Erred In Prohibiting Defense Counsel From Showing Anne A Text Message During Cross-Examination But The Error Was Harmless.
The parties agree the trial court erred when defense counsel was cross-examining Anne. During her cross-examination, Anne was asked if she recalled texting Post around 8:30 a.m. after the party. Anne answered, "I don't know what time I texted her." When asked if she remembered texting Post that she was in love with Valadez, Anne said, "I—no, but I don't remember what I said, I don't have those text messages saved." Defense counsel started to use a screen shot of a purported text message to refresh Anne's recollection and/or to impeach her. The prosecutor objected based on a lack of discovery. Defense counsel said this was not being admitted into evidence and it was only to refresh Anne's recollection. The trial court prohibited defense counsel from showing Anne the screen shot, stating the prosecution was entitled to a copy of it in advance.
We agree with the parties that the trial court erred. Anne was a prosecution witness so appellant was not required to disclose statements obtained from her intended for use during trial cross-examination. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377, fn. 14.) The issue before us is whether this error was prejudicial.
The parties disagree on the appropriate standard of review. Appellant contends that, because he was prevented from pursuing a defense, prejudice should be reviewed under Chapman v. California (1967) 386 U.S. 18 (Chapman). Error is not prejudicial under Chapman when the reviewing court can declare beyond a reasonable doubt that the error was harmless. (Id. at p. 24.) To establish prejudice, appellant claims the prosecutor "exploited" the trial court's error because Ford told the jury that he never saw these messages. He asserts the prosecutor encouraged the jury to disbelieve the testimony favorable to appellant. He contends these text messages were crucial to Anne's credibility, arguing these text messages show that she lied.
To establish witness bias, appellant notes that, during closing arguments, the prosecutor showed the jury a flowchart which demonstrated the relationship of some of the key party attendees. Munoz was described as "best friends" with appellant's brother. Post was dating Munoz, and she was Valadez's sister. The party's hostess, Jessica, was dating appellant's brother. Giovanni and Jessica were cousins. During deliberations, the jury asked for a copy of the flowchart. Appellant claims this shows the jury was aware that testimony favorable to him was biased, making Anne's text messages even more crucial to attack her credibility.
In contrast, respondent argues that the error was harmless under the state standard of review pursuant to People v. Watson (1956) 46 Cal.2d 818. Under Watson, we ask whether it is reasonably probable the excluded evidence would have affected the outcome. (People v. Cudjo (1993) 6 Cal.4th 585, 612.) Respondent contends the jury heard about the contents of Anne's text messages, and this information was unimportant when compared to the evidence of appellant's guilt.
Based on this record, we need not resolve the parties' dispute regarding the appropriate standard of review. Instead, we can declare beyond a reasonable doubt that this error was harmless. (Chapman, supra, 386 U.S. at p. 24.) The failure to refresh Anne's recollection about her text messages to Post was unimportant in relation to everything else the jury considered regarding Anne's credibility and appellant's guilt. (People v. Edwards (2013) 57 Cal.4th 658, 773 [an error is harmless if the record reveals it was unimportant in relation to everything else the jury considered].)
Appellant admitted during his police interview that he had sex with Anne when she was passed out. He never stated or implied that Anne gave him permission. At no point did he say that Anne had flirted with him or had asked him for sex.
Although Anne denied at trial that she consented to have sex with appellant, she admitted she had initially thought appellant was Valadez when he lay behind her. According to four witnesses, Anne told everyone the following day that she had initially thought appellant was Valadez. Two of those witnesses, Post and Giovanni, also provided testimony that suggested Anne had agreed to have sex with appellant before it occurred, which contradicted Anne's version of events. Based on the guilty verdict, however, it is clear the jurors accepted Anne's version of events, which was corroborated by appellant's admissions. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 162 [the jury has the exclusive province to determine witness credibility, and the truth or falsity of the determinative facts].) It is also clear the jurors believed that Anne was intoxicated when appellant had sex with her.
We disagree that these text messages were crucial to Anne's credibility. These text messages did not involve Anne's allegations of rape against appellant. Post said she received these texts from Anne the day after the party. In the texts, Anne asked Post not to tell her brother (Valadez) about what had happened. Anne indicated she might be in love with Valadez and Anne asked for Valadez's phone number. Anne did not want Valadez to think she had invited appellant into the room with her. Hernandez and Jessica offered similar trial testimony that Anne did not want Valadez to know what had happened.
At trial, Anne agreed she had sent texts to Post but she could not recall their contents. She initially denied that she had asked Post not to tell Valadez about what had happened. However, she also agreed later in her testimony that she "might have" texted Post asking her not to tell Valadez about what had happened. She told the jury she may have wanted to tell Valadez everything herself. She said she did eventually text Valadez and told him everything herself.
We disagree with appellant's claim that the prosecutor "exploited" the trial court's error through Ford's trial testimony. Ford testified that Post never told him that Anne may have agreed to have sex with appellant before it occurred. Post also never showed him a copy of Anne's text messages. Regardless of whether or not Ford saw these texts during his investigation, the trial evidence established that Anne sent these messages to Post and their contents were explained to the jury. Post, and the other witnesses, informed the jury of what they saw and heard relevant to appellant's encounter with Anne.
Based on this record, the failure to refresh Anne's recollection about her text messages to Post was unimportant in relation to everything else the jury considered regarding Anne's credibility and appellant's guilt. (People v. Edwards, supra, 57 Cal.4th at p. 773.) The verdict actually rendered in this trial was surely unattributable to the trial court's error. (Ibid.) It is beyond a reasonable doubt that the jury would have reached the same guilty verdict even if Anne had been shown her text messages to Post. As such, we can declare that the trial court's erroneous ruling was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present under either standard of review and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion In Precluding Evidence That Anne Had Sex With Another Man On January 2, 2014.
Appellant claims that the trial court erred in precluding evidence that Anne had sex with a third man, G.A., on January 2, 2014, after her encounter with appellant. He asserts this evidence was relevant to her credibility.
To protect the privacy interests of this individual, we refer to him only by his initials. (Cal. Rules of Court, rule 8.90(b)(10).)
A. Background.
1. Appellant's pretrial motion.
On August 25, 2014, appellant's defense counsel sought to introduce evidence of Anne's sexual conduct. A motion was filed pursuant to Evidence Code section 782. Based on a declaration from counsel, it was alleged that Anne engaged in consensual sex with G.A. on January 2, 2014, after her encounter with appellant. The declaration claimed that Anne did not tell G.A. that she had been raped and she did not complain of vaginal pain during her intercourse with G.A. The declaration asserted that her other sexual encounter was relevant regarding her credibility and to refute her initial claims of injury.
Appellant's motion alleged that Anne initially reported vaginal pain to law enforcement.
On October 2, 2014, the trial court held a hearing regarding this motion. Defense counsel said she would limit any trial questioning of G.A. to whether he had sex with Anne, and whether Anne had mentioned being raped or experiencing vaginal pain. After hearing arguments, the trial court denied appellant's motion. The trial court did not find Anne's sexual encounter with G.A. relevant.
2. Anne's relevant trial testimony.
During Anne's trial testimony, the jury heard that the defense had discovered some undisclosed new information about Anne that was not related to the charged crime. Specifically, during trial cross-examination, Anne admitted that she had spoken with a defense investigator before trial. After her interview with the defense investigator, Anne contacted the district attorney's office. Anne told the prosecutor's office that the defense investigator had "learned of information" that she had not told law enforcement. Anne then called detective Ford. At trial, Anne denied she had "panicked" upon learning that the defense had this information. Instead, she told the jury that she was "upset" because this new information "seemed irrelevant to me."
On redirect examination, Anne confirmed that she had talked to the prosecutor's office after the defense investigator started talking to her about "things" she had not reported to the police. Anne denied that she had failed to tell police anything relating to the sexual assault and she agreed that she disclosed everything related to the crime. She agreed that the questions from the defense investigator had seemed irrelevant to her, and they dealt with issues that had not occurred at the party.
B. Standard of review.
When discretionary power is statutorily vested in the trial court, we will not disturb the trial court's decision on appeal unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
Appellant asserts that Anne failed to tell police about her sexual encounter with G.A. and she then panicked when the defense investigator discovered it. He argues her sexual encounter with G.A. is "inconsistent with that of a person who has just been raped." He claims that Anne's post-crime behavior was relevant to her credibility. He repeatedly contends that Anne "lied" to Ford. He relies primarily on People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe) to establish error. We find appellant's arguments and his cited authority unpersuasive. The trial court did not abuse its discretion in precluding this evidence.
Evidence about the sexual conduct of a sex crime victim is admissible only under very strict conditions. Such evidence is inadmissible to prove the victim's consent to the charged sex crime. (Evid. Code, § 1103, subd. (c)(1); People v. Fontana (2010) 49 Cal.4th 351, 362.) Such evidence, however, may be admissible to attack the credibility of the complaining witness when presented in conformity with the procedures under Evidence Code section 782. (People v. Fontana, supra, 49 Cal.4th at p. 362.)
To admit such evidence, a defendant must submit a written motion accompanied by an affidavit under seal. The affidavit must contain an offer of proof showing the relevancy of the victim's other sexual conduct. (People v. Fontana, supra, 49 Cal.4th at p. 362.) If the trial court finds that the offer of proof is sufficient, it shall order a hearing outside the jury's presence and allow the questioning of the complaining witness regarding the offer of proof. (Ibid.) Following the hearing, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. (Ibid.)
Here, we disagree that evidence of Anne's sexual intercourse with G.A. on or about January 2, 2014, or her failure to disclose this encounter to police, was relevant to her credibility. As appellant concedes elsewhere in his brief, the issue the jury needed to resolve in this case was whether Anne consented to have sex with appellant, and whether she was intoxicated or unconscious when that sex occurred. Anne's alleged sex with G.A. did not have a tendency in reason to prove or disprove the truthfulness of her testimony at trial regarding whether appellant raped her. (Evid. Code, § 780.)
Moreover, evidence of her subsequent sexual encounter is the very intrusion which the rape shield laws seek to protect. Whether or not Anne had consensual sex with G.A., or failed to mention that to police, had no bearing on the veracity of her rape allegations against appellant. "For some jurors, the fact that the victim has engaged in sexual conduct outside of marriage automatically suggests a receptivity to the activity or is proof that the victim got what she deserved—neither of which is a rational or permissible inference. [Citation.]" (People v. Fontana, supra, 49 Cal.4th at p. 370.)
The Legislature crafted these limitations because "victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. [Citations.]" (People v. Fontana, supra, 49 Cal.4th at p. 362.) "By affording victims protection in most instances, these provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders. [Citations.]" (Ibid.) Our Supreme Court has noted that the discretion afforded by Evidence Code section 782 is "'narrowly'" exercised and great care must be taken to insure that this exception to the general rule does not become a "'"back door" for admitting otherwise inadmissible evidence' [citation]." (People v. Fontana, supra, at pp. 362-363.) Appellant's inquiry into Anne's sexual act with another man would have violated the state's interests in protecting her privacy and encouraging reporting of sex crimes.
Further, we disagree with appellant's characterization that Anne lied to Ford. Appellant contends she panicked after the defense discovered this new information and she lied to bolster her rape allegations. We have reviewed appellant's citations to the record. Although this record establishes that Anne did not initially tell Ford about G.A., this record does not establish that she lied. To the contrary, Anne was understandably upset when the defense investigator asked her about this information, which seemed irrelevant to her. This record does not support appellant's arguments.
Finally, Bledsoe, supra, 36 Cal.3d 236, does not assist appellant. In Bledsoe, our Supreme Court analyzed the trial court's admission of expert testimony by a rape counselor that the alleged victim suffered from "rape trauma syndrome." (Id. at p. 238.) Bledsoe discussed rape trauma syndrome and its propriety in a criminal trial. (Id. at pp. 246-248.) The high court noted that evidence on rape trauma syndrome could be admitted in a criminal trial to assist the jury in understanding the victim's conduct after the alleged sexual assault. For instance, a delay in reporting the crime could cast the victim in an unfavorable light. Evidence on rape trauma syndrome, however, could rebut the negative inference by providing the jury with expert findings on how victims react to sexual assault. (Id. at p. 247.) "As a number of decisions have recognized, in such a context expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths. [Citations.]" (Id. at pp. 247-248.)
Based on the facts of its case, Bledsoe determined that evidence of rape trauma syndrome was not admitted for a permissible purpose. Instead, the victim in Bledsoe promptly reported the attack, immediately exhibited a severe emotional reaction that a normal lay juror would associate with rape, and she suffered physical injuries that corroborated her allegations. The defendant made no claim that the victim's conduct or demeanor after the alleged crime provided any basis for the jury to infer that she had not been raped. (Bledsoe, supra, 36 Cal.3d at p. 248.) The high court determined that the prosecutor introduced testimony from an expert regarding rape trauma syndrome as a means of proving that a rape had legally occurred based on the alleged victim's post-incident trauma. (Ibid.)
After additional analysis and discussion, Bledsoe held that an expert may not opine that a complaining witness suffered from rape trauma syndrome to prove that the witness was raped. (Bledsoe, supra, 36 Cal.3d at p. 251.) Bledsoe emphasized, however, that it did not intend "to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution." (Ibid.) Lay jurors are competent to consider such evidence in determining whether a rape occurred. (Ibid.) A defendant is unfairly prejudiced if an expert suggests that, because the alleged victim exhibited some of the symptoms of rape trauma syndrome, then the victim was raped. Such expert evidence improperly creates an aura of special reliability and trustworthiness. (Ibid.)
Here, appellant's reliance on Bledsoe, supra, 36 Cal.3d 236, is misplaced. Bledsoe did not analyze or address whether the trial court should have admitted evidence of the complaining victim's subsequent sexual encounters. Bledsoe does not require a trial court to admit evidence of a rape victim's subsequent sexual conduct. Instead, Bledsoe dealt with the propriety of admitting expert testimony on rape trauma syndrome. Bledsoe did not address California's rape shield statute and it did not analyze whether the trial court abused its discretion under that statute. Cases are not authority for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.) Bledsoe is factually distinguishable and does not establish an abuse of discretion under the circumstances of this case.
Based on this record, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The trial court's ruling did not fall outside the bounds of reason under applicable law and relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) Accordingly, the trial court did not abuse its discretion and this claim fails.
Because the trial court did not abuse its discretion, we likewise reject appellant's claim that the trial court's ruling deprived him of his right to confront witnesses or his right to present a defense. (See People v. Fontana, supra, 49 Cal.4th at p. 370 [rejecting constitutional claims because trial court did not abuse its discretion in excluding evidence of victim's other sexual conduct].)
IV. There Was No Cumulative Error.
Appellant claims reversal is required based on cumulative errors. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. [Citations.]" (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
Here, appellant's claim of cumulative error is without merit because we have rejected all of his individual claims. (See People v. Bradford, supra, 14 Cal.4th at p. 1057 [the defendant's cumulative prejudice argument rejected based on findings each individual contention lacked merit or did not result in prejudice].) Appellant was entitled to a fair trial, but not a perfect one. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Taking all of appellant's claims into account, we are satisfied that he received a fair adjudication. Accordingly, we reject this claim.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.