Opinion
D064393
12-29-2016
THE PEOPLE, Plaintiff and Respondent, v. LONNIE D. JOHNSON, Defendant and Appellant.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCE318332/SCE323902) APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Lonnie Johnson guilty of numerous counts involving alleged sexual assaults pursuant to various Penal Code sections against T.S. and B.B., both of whom were under the age of 17 at the time of the offenses. After Johnson's motion for new trial based on alleged jury misconduct was denied, the court sentenced him to a prison term of 30 years to life plus eight years.
All statutory references are to the Penal Code unless otherwise specified.
As to T.S., Johnson was charged with and found guilty of two counts of lewd act on a child under the age of 14 years old pursuant to section 288, subdivision (a) (counts 1 & 2), one count of sodomy on a child under the age of 14 years old and more than 10 years younger than Johnson (§ 286, subd. (c)(1), count 3), one count of sodomy on an intoxicated person (§ 286, subd. (i), count 4), one count of continuous sexual abuse of a child (§ 288.5, subd. (a), count 5), and three counts oral copulation on a person under the age of 16 years old and a perpetrator over the age of 21 years old (§ 288a, subd. (b)(2), counts 6, 7,& 8). As to B.B., Johnson was charged with and found guilty of one count of forcible lewd act upon a child under the age of 14 years old (§ 288, subd. (b)(1), count 9), oral copulation on a person under the age of 18 years old (§ 288a, subd. (b)(1), count 11), lewd act on a child 14 or 15 years old (§ 288, subd. (c)(1), count 12), and attempted forcible rape (§ 664/261, subd. (a)(2), count 13). The information further alleged, and the jury found true, that there was substantial sexual contact with a child within the meaning of section 1203.066, subdivision (a)(8), as to counts 1 and 2, and also found true the allegation (as to counts 1 & 2) Johnson had committed an offense described in section 667.61, subdivision (c), against more than one victim within the meaning of section 667.6, subdivisions (b), (c) & (e).
On appeal, Johnson argues he was denied a fair trial because one of the jurors (Juror 2) committed misconduct during deliberations when she introduced her own experience as a rape victim into the deliberations over the veracity of T.S.'s trial testimony. Johnson also argues the same juror committed misconduct by concealing during voir dire that she had been a rape victim even though the court posed questions to the veniremen that reasonably should have called for Juror 2 to reveal she had been a rape victim. Johnson alternatively argues that, assuming the court's questions during voir dire were inadequate to have required a reasonable juror to understand the necessity for revealing the information that Juror 2 did not reveal, he was denied a fair trial because the voir dire was inadequate to expose potential bias against him and he was denied effective assistance of counsel because counsel did not insist that the gap in the court's voir dire be cured by questions directly asking potential jurors whether they had been victims of crimes similar to those charged against Johnson. Finally, Johnson complains the court erred by excluding certain evidence concerning a prior molestation of T.S.
I
FACTUAL BACKGROUND
A. The Relationships
T.S. is Johnson's daughter and was born in 1993. She lived with Johnson and her mother until age five, and then lived with her grandmother or in group homes for a number of years. At age 11, T.S. began living with Johnson and Johnson's girlfriend (Valerie). They lived with B.B. (Valerie's child from a prior relationship) and three other of Valerie's children.
B. Evidence Concerning Molestations of T.S.
T.S.'s Pretrial Statements
In December 2010, when T.S. was 17 years old, she wrote a note to a friend in class that stated Johnson had molested her and, at her friend's urging, T.S. gave the note to a teacher at her school. The teacher took T.S. to a school administrator, who notified San Diego County Health and Human Services Agency (Agency). The administrator also contacted T.S.'s mother and told her to call the police.
Deputy Sherriff Montan went to T.S.'s school that day and interviewed her. T.S. told Montan she went to live with Johnson after her mother became homeless. When she was 11, Johnson gave her a little white pill that made her feel weak and dazed but he told her she could trust him and he would never do anything to hurt her. He then removed her clothing and sodomized her, and then directed her to bathe to wash away the evidence. He then told her they were "going to get real close now. You can't tell anyone." T.S. told Montan that Johnson continued to sodomize her every other week for the next three years and, around age 14, he began having vaginal intercourse with her or had her perform oral sex on him. Johnson would give her alcohol or marijuana beforehand, and would use a condom during vaginal sex and would flush it down the toilet. He ejaculated once in her mouth but because she didn't like that he did not do it again. Johnson also beat her with a miniature baseball bat that left permanent bruises on her buttocks.
Montan brought T.S. to the Santee Police Department, where she was interviewed by Detectives Perez and Lopez. She related the above facts to them and also told them Johnson sometimes made her bathe in bleach after the molestations. T.S. told Perez that Johnson hit her with closed fists and left bruises when she was slow to comply with his directives, or when she got bad grades, but she explained the bruises to others as the result of accidents. She had seen Johnson strike other women, and he threatened to kill her mother if T.S. revealed the sexual abuse. She told the detectives she moved back in with her mother the preceding Saturday, after T.S. revealed to Johnson's current live-in girlfriend (Andrea) that Johnson had raped her. Andrea immediately had T.S. pack her bags and then drove T.S. to her mother's house. While she was packing, Johnson came in and asked why she was leaving, and she told him it was because of what he did to her. He told her she was the cause of it because her pheromones were so strong but also said he loved her and asked for forgiveness.
The detectives asked T.S. if she was aware of any other people Johnson had molested. She told them Johnson had molested B.B., and that T.S. had learned of that molestation because B.B. told her mom (Valerie) about the molest. When Valerie subsequently asked T.S. if she knew about the molest, T.S. for the first time learned about Johnson's molestation of B.B. However, Valerie ultimately believed Johnson's denials rather than B.B.'s claims.
Ms. Glass, an Agency worker, interviewed T.S. five days later. T.S. again repeated her allegations of molestation. Following the interview, the Agency worker did not allow her to return to Johnson's home. However, Glass also interviewed the other children, including B.B., who did not reveal any molestations by Johnson. Although Glass advised Valerie not to permit Johnson to have unsupervised visits with his daughters, Glass ultimately concluded her investigation without involving the dependency court and without placing any legal restrictions on Johnson's visitation.
B.B. did not tell the Agency worker about Johnson's alleged molestation of her, but the Agency worker explained it is not uncommon for children to conceal this information for a variety of reasons.
T.S. agreed to help police by engaging in several pretext calls with Johnson over a several-month period. However, the calls yielded "[n]o results."
T.S.'s Trial Testimony
Although T.S. testified against Johnson at the preliminary hearing and reiterated the allegations of molestation as she had described them to the police, her trial testimony changed and she recanted the allegations of wrongdoing by Johnson. At trial, she testified that she first began to recant her claims in May or June of 2012 when she spoke to Johnson's cousin and her sister and at that time told them everything she had claimed about Johnson's misconduct was a lie. At trial, she claimed she had lied when she told police and the Agency worker that Johnson had committed sexual misconduct against her or had given her drugs or alcohol. She testified she lied about Johnson's misconduct because she was young, angry, and wanted her mother's acceptance. She also claimed she was angry because she had developed an intimate relationship with B.B. and, when Johnson learned about it, he prohibited them from seeing each other, so they concocted a plan starting when T.S. was about 13 years old to get rid of Johnson so she and B.B. could continue their relationship.
Detective Perez testified that several of Johnson's family members were present when T.S. testified at the preliminary hearing and, outside the courtroom, Perez saw someone from Johnson's group taking pictures. Perez gave T.S. his phone number and told her to call if anyone tried to contact her. Two months later, T.S. called Perez on May 5, 2012, and reported she had received a call from someone using a blocked number who offered her financial help in exchange for dropping the charges. She declined the offer, but subsequently received two more calls from a blocked number and, in the last of those calls, the caller said, "Hey, think it over." At trial, T.S. admitted calling Perez but said she had lied about the phone calls.
However, when defense counsel visited T.S. in August 2012 to ask whether she was recanting her story, T.S. told defense counsel she did not want Johnson to go to jail, but that he instead needed psychiatric help because "when the things were happening, it's almost as if he himself wasn't in his own body." T.S. told defense counsel that she hadn't lied about Johnson's behavior but, when defense counsel started to leave, T.S. told defense counsel to wait. T.S. then said she had been lying, and that the allegations she had made "were not true." Shortly after defense counsel's visit to T.S., Johnson called his nephew and expressed surprise the charges had not been dropped after T.S.'s recantation and, after noting the recantation had to be "real official" and "gotta sound remorseful," complained that "[y]oung bitches don't [know] how to be remorseful about a goddamn thing."
C. Evidence Concerning Molestations of B.B.
B.B. was first molested by Johnson in September 2007 when she was 13 years old. At that time, Johnson and T.S. were living in an apartment with B.B., B.B.'s mother (Valerie), and B.B.'s sister (Diamond), but Valerie was then in the hospital giving birth to a child. Johnson asked B.B. to give him a massage but, when she finished, he blocked the door. B.B. tried to take cover in the bathroom, but when she left the bathroom Johnson grabbed her and rubbed against her. B.B. claimed she told T.S. about the incident but did not tell Valerie.
However, B.B. told police T.S. never knew at the time that Johnson was abusing her.
Later that year, Johnson and T.S. moved into a different apartment, and B.B. and her sisters would visit on weekends. B.B. swam in the pool and showered at Johnson's apartment, and Johnson occasionally entered the bathroom while she was showering. When B.B. was about 14 years old, Johnson joined her in the shower and touched her breasts. About a month later, he carried her from the shower, put her on the bed, and orally copulated her. She was conflicted about how to feel about this, but when he kept trying to digitally penetrate her, B.B. kicked him off of her and he eventually let her go. B.B. testified she again told T.S. about this incident but did not tell Valerie.
On another occasion, B.B. and T.S. were with Johnson on a bed watching a movie and smoking marijuana when Johnson began rubbing B.B.'s thigh. B.B. told T.S. to "get your dad" add said "[h]e's touching me," but Johnson denied it. When he resumed touching her, she ran into T.S.'s room and started crying. T.S. tried to comfort her, and Johnson told T.S. that, if anyone asked, she should say he was sleeping.
In total, Johnson sexually touched B.B. six or seven times. B.B. eventually told Valerie about the touchings. Valerie confronted Johnson but he denied it. Valerie apparently did not believe B.B.
B.B. admitted she resented Johnson's relationship with Valerie and feared Johnson because she had seen him physically abuse Valerie and T.S. She also resented Johnson telling Valerie about B.B.'s misbehavior because he was not her father and should have stayed out of her business. B.B. said she and T.S. were like sisters, and had been sexually intimate for some time, but that Johnson had known about their intimate relationship and had done nothing to stop it. B.B. told the detective she planned to be the one who killed Johnson and had once tried to poison his food.
D. Expert Testimony
An expert on child abuse testified about a number of subjects, including why children do not promptly report the abuse, why children provide incrementally more details once they have made an initial disclosure of the abuse, and recantation. It is uncommon in child abuse cases to have a child recant their allegations, but the likelihood of recantation is directly related to the closeness of the relationship between child and abuser. The likelihood of recantation also can be affected by the presence or lack of maternal support for the child and, where a mother is not supportive of the child after disclosures of abuse by the father, stepfather or boyfriend, the situation is "really ripe for a recantation." The expert estimated the percentage of false reports of abuse to be between 2 percent and 8 percent.
E. Defense
Johnson testified on his own behalf and denied ever molesting either B.B. or T.S. He did discipline T.S. (by grounding her and confiscating her cell phone and rollerblades) when she brought home bad grades in high school. When he discovered she and B.B. engaged in sex when T.S. was 14 years old, he similarly disciplined her and barred them from seeing each other for several months. Johnson had a strained relationship with B.B. because B.B. resented him dating her mother and also resented Johnson's good relationship with B.B.'s sister. The defense also recalled T.S., who reiterated that she had lied about the molestations. T.S. also testified she had convinced B.B., who hated Johnson but had never told T.S. anything about Johnson molesting her, to lie about Johnson molesting them.
The defense called members of Johnson's family, his fiancée, and a close friend of his, to testify on his behalf. They testified Johnson was a good father who would discipline T.S. when she misbehaved, that he was not physically abusive toward T.S., and he was not the type of person who would molest children. They also testified T.S. was a liar. Johnson's son, who dated B.B., ended his relationship with her because he felt she lied to him a lot and believed she was trying to trap him with a child. B.B. did not tell Johnson's son of Johnson's misbehavior until after Johnson's son had terminated his relationship with B.B.
The defense called an expert psychologist to testify that false allegations of molestation by adolescents can occur when there is a disrupted relationship or in situations in which the child is upset with the parent and is seeking revenge. A child can recant when the initial allegations were a lie, or when there is pressure from family members.
II
CLAIMS ARISING FROM JUROR 2
Johnson's principal claims on appeal arise from the alleged claims of juror misconduct and/or error by the trial court and defense counsel that permitted Juror 2 to be seated on his jury even though she had been the victim of a rape. Johnson asserts Juror 2 committed misconduct by concealing her background during voir dire because the questions posited to her should have elicited she had been the victim of a rape. Johnson alternatively asserts that, assuming Juror 2 did not commit misconduct because the voir dire by the court and defense counsel did not posit sufficiently pointed questions that would have required prospective jurors to reveal they had been victimized by a sexual assault, the court's voir dire was error and defense counsel provided inadequate assistance of counsel by not curing the defects in the court's voir dire.
A. Factual and Procedural Context
The Voir Dire
Before jury selection began, defense counsel asked how the court intended to handle the sensitive nature of the charges. The court assured defense counsel it would talk about it and hold private conversations with jurors to avoid having their life experiences discussed in open court, and therefore "by the time we get to your voir dire, hopefully most, if not all[,] that territory will be covered."
At the outset of jury selection, the court explained the importance of an unbiased jury and stated that "[i]f there is any fact or any reason why you might be biased or prejudiced in any way, you must disclose that information. . . . [¶] If any of the subject matter of our questions is potentially embarrassing to you, you may impart that information to us more privately." The court went on to explain that there are some cases "for each of us that at some point in our lives would be extremely difficult and perhaps impossible for us to be fair and impartial concerning it. [¶] It's very important that you be honest and candid with us." The court then summarized the charges for the jury, explained the presumption of innocence and burden of proof, and then explained that, although the evidence in the case would naturally evoke emotional reactions by the jurors, such reactions were normal and standing alone would not disqualify them from sitting as jurors, and the jury would still have to decide the issues based on logic and reason rather than by emotion. However, the court also told the jury:
"[M]any of us are particularly sensitive to this particular subject matter. Some of us may have had this subject matter very directly, or at least indirectly, impact our individual lives. Some of you may
either personally or within your family unit or matrix of good friends know someone who was victimized in the manner that it's alleged that [T.S.] and [B.B.] were victimized. [¶] So before I ask the next 64,000-dollar question, . . . I wanted to put all of this out there for your consideration. Simply because you find this subject matter particularly distasteful . . . in and of itself does not make you other than a viable candidate to become a juror in this case. [¶] . . . I want . . . each of [you] to do some soul searching and understand that . . . [¶] . . . this case has to be decided based upon the evidence that's presented . . . using logic and reason and setting aside, to the extent you can, the emotional impact of such subject matter.
"So with all of that said, having in mind the type of case that this is, and moreover the nature of the charges and general subject matter . . . , how many of you believe that no matter how hard you tried, you could not . . . act fairly and impartially as a trial juror . . . . [¶] If your answer is truly yes . . . that you could not, for whatever reason, please . . . now raise your hand."
After numerous people raised their hands, the court then asked "those of you [who] raised your hand . . . , I'd like to refine it a bit. [¶] How many of you who raised your hand . . . did so in large part because your own life or the lives of someone near and dear to you within your family or close circle of friends have been very directly impacted by the subject . . . of child molestation, in whatever form it may have taken?" When numerous jurors raised their hands, the court excused those who had not raised their hands to allow individual private questioning for those who had raised their hands. Juror 2 did not raise her hand in response to these questions.
During individual questioning, the court learned 22 of the people who had raised their hands to the "inability to be fair" question, as refined by the "based on personal experience" question, had been personally touched by molestations or sexual assaults. The court excused 19 of those who confirmed they could not be fair and impartial because of their experiences. However, the court did not excuse three prospective jurors who stated that, notwithstanding having been personally touched by molestations or sexual assaults, they could be fair and impartial jurors.
During questioning, the court also learned two persons who had raised their hands to the "inability to be fair" question had not been personally touched by molestations or sexual assaults but nevertheless were concerned they could not be fair based on their personal antipathy toward alleged child molesters. The court excused these two prospective jurors.
Although these three members remained on the panel, one was excused by a prosecution peremptory challenge, the second was excused by a defense peremptory challenge, and the third was not seated as either a juror or alternate.
The court then resumed questioning of the entire remaining panel of prospective jurors and reemphasized the fundamental question was whether any prospective juror believed he or she could not objectively decide the facts based on reason and logic rather than emotion, or whether any juror (if that juror were in Johnson's shoes) would honestly have to say that Johnson would not want him or her on the jury. None of the prospective jurors raised their hands.
After the prospective jurors gave their background information, during which Juror 2 affirmed she could be fair and impartial, defense counsel conducted voir dire and asked, among other things, whether jurors had experience with teenagers not telling the truth. Defense counsel, noting Juror 2 had nodded in agreement, asked Juror 2 about that and Juror 2 told counsel she was a security guard who worked with 800 teenagers and was also a "step mom of a 17 year old, and every time her mouth moves, she lies." Neither defense counsel nor the prosecutor asked the more general question of whether any juror had been the victim of a crime.
Just before the jury was empaneled, the court again asked whether anyone had "anything . . . that you would like to bring forward or any concerns that you have," which triggered the following colloquy:
"Juror 2: You were a judge in my father's case 12 years ago. I don't know if that puts anything out there or not."
"The Court: Doesn't to me. But more importantly, does it to you?"
"Juror 2: No, but I just thought I would bring it out."
"The Court: Okay. And forgive me, I don't remember anything."
"Juror 2: You don't remember that?
"The Court: Anything about your father's case.
"Juror 2: I am so hurt."
"The Court: But let's put it this way. Whatever you know of me, based upon that experience or otherwise, are you willing to put up with me, in a manner of speaking, for the next couple of weeks presiding over this trial?
"Juror 2: Yeah, I guess I'll do it again.
"The Court: Okay. Appreciate that. [¶] Now I'm going to have to go back through my notes from 12 years ago.
"Juror 2: You can't because my last name is different, so you won't know."
"The Court: [¶] . . . [¶] . . . So I appreciate you bringing that forward. But so long as you're comfortable, I'm comfortable. Okay."
The Jury Deliberations
The jury commenced deliberations on the afternoon of January 30. After two days of deliberations, the jury informed the court shortly before the lunch hour on Friday, February 1, that it had reached verdicts on the counts involving B.B. but were deadlocked on the counts involving T.S. The court elected to release the jury for the weekend and directed them to return on Monday to resume deliberations. On Monday, the jury resumed deliberations and, approximately one hour later, informed the court it had reached verdicts on all counts.
The New Trial Motion
Johnson subsequently obtained juror identifying information for Juror 2 and for Juror No 10 (Juror 10), and filed a new trial motion alleging jury misconduct. The written motion alleged Juror 10 stated the jury had been deadlocked on Friday, February 1, with the vote being either 8 to 4 or 9 to 3 in favor of conviction, when Juror 2 revealed during deliberations that she had been a rape victim and had tearfully described in great detail what happened when she was raped, and that other jurors had tears in their eyes. When the jury resumed deliberations the following Monday, the three hold-out jurors had changed their votes and voted to convict on the counts involving T.S. The motion asserted Juror 2 was guilty of misconduct, which warranted a new trial because Juror 2 concealed material information during voir dire
At the evidentiary hearing on the new trial motion, although both Juror 2 and Juror 10 were present at that hearing, the defense called only Juror 10 as a witness. Juror 10 testified that, on the Friday before the weekend after the jury had reached verdicts as to B.B., the jury had voted "around 9 to 3 or 8 to 4" and there was a "group discussion about how somebody might feel or if somebody would change their story about being raped . . . . [¶] And then when we were talking about this, [Juror 2] stated, 'No, that's not the way it is. That's not what happened when I was raped. That's not'—and she started crying in the jury room. [¶] And after all that happened, we came back on Monday, and all the people that were voting one way changed their mind . . . ." Juror 10 testified that, after the court ended the deliberations on Friday and directed the jury to return on Monday, the jury returned that Monday and took another vote or votes and ultimately found Johnson guilty. Juror 10 was among those who changed their votes over the weekend.
Juror 10 recalled Juror 2 "said that she was raped more than once—I believe she said more than once. I don't know if by the same person or not. And then just that she was crying." Juror 10 said it was very emotional, and after this revelation, it was "pretty silent" in the jury room for a few minutes. Juror 10 could not recall if Juror 2 had revealed the rape before or after the jury had sent the note concerning being deadlocked, but the jury did take multiple votes on the counts involving T.S. both before and after the rape revelation.
Juror 10 also described Juror 2 as a "little standoffish" but that she had participated in deliberations. Indeed, Juror 2 "got into it with the foreman one time for cutting—because he cut her off multiple times when she was trying to speak." Juror 10 noted the foreman told his fellow jurors that he was a day late for his vacation.
The trial court concluded, after reviewing transcripts of its voir dire questions, that its questions "reasonably should have elicited disclosure by any prospective juror of having been the victim of the type of offense generally or specifically charged against [Johnson]." However, the court could not discern whether Juror 2's "nondisclosure or oversight during voir dire," as "compared and contrasted with the disclosure [she made during] deliberations," was intentional rather than unintentional. The court also attributed little weight to the fact Juror 2 became emotional during the deliberations because "deliberations often . . . become somewhat emotional and heated." The court also noted that, although there was a change in the vote of the jurors between Friday afternoon and Monday morning, it would not speculate that it was necessarily attributable to Juror 2's limited disclosure of her experience. The court found there was an insufficient showing of prejudicial juror misconduct and denied the new trial motion.
B. The Juror Misconduct Claim
Johnson raises two interrelated claims of alleged misconduct by Juror 2. First, he argues Juror 2 committed misconduct during voir dire because she concealed relevant information that would have revealed her inability to serve as a fair and impartial juror. Second, he argues Juror 2 committed misconduct during deliberations because she interjected her own expertise into the deliberations that the jury used to evaluate the evidence introduced at trial.
The Voir Dire Misconduct Claim
Relevant Legal Framework
An accused has a constitutional right to a trial by an impartial jury. (Irvin v. Dowd (1961) 366 U.S. 717, 722; In re Hitchings (1993) 6 Cal.4th 97, 110.) An impartial jury is one in which no juror has been improperly influenced (People v. Nesler (1997) 16 Cal.4th 561, 578) and every juror is " 'capable and willing to decide the case solely on the evidence before it' " (McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554 (McDonough), quoting Smith v. Phillips (1982) 455 U.S. 209, 217).
"Voir dire examination serves to protect [a criminal defendant's right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror's being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious." (McDonough, supra, 464 U.S. at p. 554.) Because voir dire is the crucial means for discovery of actual or potential juror bias, it cannot serve this purpose if prospective jurors do not answer questions truthfully, and therefore "[a] juror who conceals relevant facts or gives false answers during the voir dire examination . . . undermines the jury selection process and commits misconduct." (In re Hitchings, supra, 6 Cal.4th at p. 111.)
Although the intentional concealment of relevant facts during voir dire constitutes misconduct, and raises a rebuttable presumption of prejudice (People v. Carter (2005) 36 Cal.4th 1114, 1208), a juror's unintentional or inadvertent failure to disclose relevant facts is not accorded the same effect. " 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty." [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]' " (People v. San Nicolas (2004) 34 Cal.4th 614, 644 (San Nicolas), quoting People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
The McDonough court explained why courts should treat intentional concealments differently from honest but imperfect answers. In McDonough, the jurors were asked whether they or members of their immediate family had suffered any "injuries . . . that resulted in any disability or prolonged pain and suffering," and one juror (juror Payton) did not reveal during voir dire that his son had suffered a broken leg from an accident. (McDonough, supra, 464 U.S. at p. 550.) Concluding this nondisclosure did not automatically warrant a new trial based on juror misconduct from concealment, the McDonough court explained at pages 555 to 556:
"The critical question posed to juror Payton in this case asked about 'injuries . . . that resulted in any disability or prolonged pain or suffering.' [Citation.] Juror Payton apparently believed that his son's broken leg sustained as a result of an exploding tire was not such an injury. In response to a similar question from petitioner's counsel, however, another juror related such a minor incident as the fact that his six-year-old son once caught his finger in a bike chain. [Citation.] Yet another juror failed to respond to the question posed to juror Payton, and only the subsequent questioning of petitioner's counsel brought out that her husband had been injured in a machinery accident. [Citation.]
"The varied responses to respondents' question on voir dire testify to the fact that jurors are not necessarily experts in English usage. Called as they are from all walks of life, many may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges. Moreover, the statutory qualifications for jurors require only a minimal competency in the English language. [Citation.] Thus, we cannot say, and we doubt that the Court of Appeals could say, which of these three jurors was closer to the 'average juror' in his or her response to the question, but it is evident that such a standard is difficult to apply and productive of uncertainties.
"To invalidate the result of a 3-week trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. Whatever the merits of the Court of Appeals' standard in a world which would redo and reconstruct what had gone before upon any evidence of abstract imperfection, we think it is contrary to the practical necessities of judicial management . . . . We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." (Italics added.)
When a party seeks a new trial based upon jury misconduct, "the court must undertake a three-step inquiry. First, the court must determine whether the evidence presented for its consideration is admissible. [Citations.] . . . [¶] Once the court finds the evidence is admissible, it must then consider whether the facts establish misconduct. [Citations.] . . . [¶] Finally, if misconduct is found to have occurred, the court must deter mine whether the misconduct was prejudicial." (People v. Duran (1996) 50 Cal.App.4th 103, 112-113.) "Although prejudice is presumed once misconduct has been established, the initial burden is on defendant to prove the misconduct" (In re Carpenter (1995) 9 Cal.4th 634, 657 (Carpenter)), and " '[w]e will not presume greater misconduct than the evidence shows.' " (People v. Lewis (2001) 26 Cal.4th 334, 390 (Lewis), quoting Carpenter, at p. 657.)
Evaluation of the Voir Dire Misconduct Claim
We agree with the People that Johnson has not satisfied his initial burden of showing Juror 2 committed misconduct by affirmatively "fail[ing] to answer honestly a material question on voir dire . . . ." (McDonough, supra, 464 U.S. at p. 556.) The court did ask the jurors to raise their hands if they believed that "no matter how hard you tried, you could not . . . act fairly and impartially as a trial juror," and then "refine[d] it a bit" by asking which of the jurors who had raised his or her hand "did so in large part because your own life or the lives of someone near and dear to you within your family or close circle of friends have been very directly impacted by the subject of child molestation." However, Johnson produced no evidence showing Juror 2's failure to disclose that she had been raped represented an intentional concealment of material facts, because there was no evidence her rape experience arose because she was molested as a child. Although Juror 2 was present at the evidentiary hearing in connection with his new trial motion, Johnson elected not to call her to testify about the details of her rape experience, leaving it to pure speculation whether it was a sexual assault when she was an adult, and whether the attacker was a spouse, or a date, or a stranger. More importantly, Johnson's failure to call Juror 2 as a witness at the new trial motion hearing leaves to pure speculation as to whether she understood the voir dire questions to exclude the need to reveal sexual assaults except those involving minors, making her failure to disclose an honest and good faith omission not constituting misconduct (see, e.g., People v. Majors (1998) 18 Cal.4th 385, 419-420 [no misconduct because court "cannot fault [juror's] decision to respond to the question as phrased"]), or whether she understood the voir dire questions to call for the revelation of any sexual assault, which she chose intentionally to conceal, constituting misconduct. Because it is Johnson's burden to prove misconduct occurred (Carpenter, supra, 9 Cal.4th at p. 657) and a court will not presume greater misconduct than the evidence shows (Lewis, supra, 26 Cal.4th at p. 390), Johnson's evidentiary showing below was inadequate to show misconduct.
Johnson has not shown Juror 2's affirmative statement to the critical question—that she could act fairly and impartially—was false. The mere fact a prospective juror had been sexually assaulted does not categorically preclude that juror from honestly representing that he or she could nevertheless act fairly and impartially, and Johnson has not cited any persuasive law suggesting such a prior experience would constitute grounds for excusing that juror for cause under the relevant provisions of Code of Civil Procedure section 229.
Indeed, in this case, there were three prospective jurors who informed the court that either the respective juror (or a close family member) had been touched by sexual molestation crimes but that he or she nevertheless could act fairly and impartially in this case, and the court did not excuse those jurors for cause. Although Johnson asserts People v. Diaz (1984) 152 Cal.App.3d 926 (Diaz) and People v. Blackwell (1987) 191 Cal.App.3d 925 would support a "for cause" challenge merely because Juror 2 had been the victim of a sexual assault of some unknown ilk, we are unpersuaded either case supports Johnson's claim. We explain below our question as to the continuing vitality of Diaz, and Blackwell is even less apposite. In Blackwell, a wife was on trial for murdering her alcoholic husband who allegedly beat her, and the wife's defense claimed she suffered from battered wife syndrome. The juror responded "no" to questions asking whether anyone in her family suffered from alcoholism and whether she had ever experienced domestic violence (Blackwell, at pp. 927-928), but in a new trial motion after the jury found the defendant guilty the juror stated she had an abusive ex-husband who was an alcoholic, and further stated she felt the defendant should have handled the situation (as did the juror) by leaving, without resorting to violence. (Id. at pp. 927-928.) The Blackwell court found the juror provided false statements as to matters of which she was aware, and there was no reason to believe her false statements resulted from oversight or forgetfulness, which compelled the inference that her false answers were intentionally and deliberately false. (Id. at pp. 928-930.) No similar showing of affirmative misconduct is present here.
Johnson appears to assert that, under Diaz, even when a juror honestly believes he or she can be fair and impartial and therefore conceals relevant information, a new trial motion must be granted. In Diaz, the defendant was charged with assault with a deadly weapon, the jurors were asked on voir dire whether they had been a victim of a similar crime, and the juror in question remained silent. However, in the middle of trial, the juror told court personnel she had been the victim of an attempted rape, during which the assailant gashed her chin with a knife, after which she "hunted down" the assailant and stabbed him. (Diaz, supra, 152 Cal.App.3d at pp. 929-931.) When the court asked the juror why she had not disclosed this information, the juror stated that it had not occurred to her that the assault on her was similar to assault with a deadly weapon, and assured the court that her experience would not bias her in deciding the case. (Id. at p. 931.) After the jury convicted the defendant, the Diaz court concluded the trial court had erred in refusing to dismiss the juror and declare a mistrial. The Diaz court, after concluding the appropriate standard of review was independent review (id at pp. 933-934), held that retention of the juror was reversible error, reasoning that the "[c]oncealment under the instant circumstances, regardless whether intentional, constitutes misconduct" (id. at p. 936, italics added) and "the presumption of prejudice has not been rebutted by the People by evidence showing the nonexistence of prejudice, or by an examination of the entire record" (ibid.), particularly where the jury had elected her as "foreperson . . . , thus highlighting the reasonable probability the remaining jurors would be substantially influenced by her views." (Ibid.)
Although Diaz stated that its approach applied to any concealment, regardless of whether the concealment was "intentional" (Diaz, supra, 152 Cal.App.3d at p. 936), Diaz's raison d'être was that the juror had been affirmatively asked a question directly calling for her to reveal whether she had been the victim of a knife attack, and she (1) concealed her prior victimization of an attempted rape by a knife-wielding assailant, and (2) her comments led the bailiff and court clerk to concur that the juror was " 'prejudiced as to violent crimes, especially that of women. She is obsessed with rape, with victims, and the men who perpetrate this act [and we] cannot honestly say that she would be an impartial juror as to violent crime.' " (Id. at p. 931.) Neither of those factors is present here, and Diaz is distinguishable as to the core facts on which the decision turned.
Moreover, Diaz's approach does not appear to have gained any traction, and the courts in both People v. Kelly (1986) 185 Cal.App.3d 118 and People v. Jackson (1985) 168 Cal.App.3d 700 (Jackson) rejected Diaz's approach where the nondisclosure was unintentional and there was no evidence of actual bias. (See Kelly, at pp. 125-129 [rejecting Diaz and concluding the trial court did not abuse its discretion by denying new trial motion where incident was dissimilar, nondisclosure was not intentional].) The Jackson court, rejecting Diaz's approach, explained:
"It is clear that where a juror intentionally lies on voir dire, such an act constitutes misconduct. [Citation.] Similarly, it is misconduct for a juror to read newspaper accounts of the trial [citation], contact an outside attorney for advice during deliberations [citation] or question the police for information about the case [citation]. But to
find misconduct where 'concealment' is unintentional and the result of misunderstanding or forgetfulness is clearly excessive. It is with good reason that the law places severe limitations on the ability to impeach a jury's verdict. To hold otherwise would be to declare 'open season' on jury verdicts not to a party's liking. A green light would be given for every unsuccessful litigant to root out after-the-fact evidence of any 'subconscious bias.' " (Jackson, supra, 168 Cal.App.3d at pp. 704-705, italics added.)
Jackson concluded the proper test for unintentional nondisclosure is "whether the juror is sufficiently biased to constitute good cause for the court to find . . . he is unable to perform his duty," and applied the deferential abuse of discretion standard to the trial court's assessment of that issue. (Jackson, supra, 168 Cal.App.3d at p. 706.) Although our Supreme Court in San Nicholas, supra, 34 Cal.4th 614 did not explicitly overrule Diaz, it did expressly adopt Jackson's approach as to unintentional nondisclosures. (San Nicolas, at p. 644.) We conclude that, because Diaz apparently has not been followed by other cases and our Supreme Court has approved the contrary approach used in a case rejecting Diaz, the proper approach is to evaluate "[w]hether a failure to disclose is intentional or unintentional and whether a juror is biased," and these issues "are matters within the discretion of the trial court," whose decision will not be disturbed on appeal "[e]xcept where bias is clearly apparent from the record . . . ." (San Nicolas, supra, 34 Cal.4th at p. 644.)
Johnson finally appears to argue that, even assuming the nondisclosure was inadvertent, he was nevertheless entitled to a new trial because Juror 2's actual "bias is clearly apparent from the record" (San Nicolas, supra, 34 Cal.4th at p. 644) because (1) she did not reveal her prior experience during voir dire; (2) she revealed it to fellow jurors during deliberations to explain how she analyzed the evidence and to influence how the jury should analyze the evidence; and (3) the revelation was accompanied by great emotion. However, none of these facts, either individually or collectively, convince us Juror 2's actual bias is "clearly apparent" from the record. For example, the record showed Juror 2 actively participated in the voir dire process, and even volunteered information (e.g. that the trial judge had presided over a trial involving her father) only tangentially relevant, which supports an inference she was not subjectively attempting to hide information in order to be seated as a juror. Moreover, the fact Juror 2 revealed her life experience to explain her view of the evidence was not evidence of actual bias. (People v. Steele (2002) 27 Cal.4th 1230, 1266 ["using one's background in analyzing the evidence . . . is appropriate, even inevitable"].) Finally, the fact Juror 2 was "emotional" does not show a bias that is clearly apparent because, as the trial court noted, little weight could be attributed to the fact Juror 2 became emotional during the deliberations because "deliberations often . . . become somewhat emotional and heated."
Johnson suggests that, had she revealed the information, the court would have dismissed Juror 2 for cause or, at a minimum, counsel could have used a peremptory challenge to eliminate a potentially biased juror. However, in cases not involving intentional concealment by a juror, the fact the juror acted in " 'good faith when answering voir dire questions is the most significant indicator that there was no bias' [citation] and 'an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror's wrong or incomplete answer hid the juror's actual bias' [citation]." (In re Boyette (2013) 56 Cal.4th 866, 890.) Although the inadequate information may have impacted the use of a peremptory challenge, "the test asks not whether the juror would have been stricken by one of the parties, but whether the juror's concealment (or nondisclosure) evidences bias." (Ibid.)
Indeed, defense counsel's voir dire questions to this juror showed the defense actively sought jurors who would employ their life experience. The defense sought to assert that T.S. lied about the molestations to police and defense counsel's voir dire asked (among other things) whether jurors had experience with teenagers not telling the truth and, when defense counsel noted Juror 2 had nodded in agreement, she asked Juror 2 about that. Juror 2 told counsel about working with 800 teenagers, and that the Juror's 17 year old lies "every time her mouth moves."
The Deliberations Misconduct Claim
Johnson also argues, apparently for the first time on appeal, that even if she was not biased, Juror 2 committed independent and prejudicial misconduct by introducing her own life experience into the deliberations.
Relevant Legal Framework
Our Supreme Court has explained that " '[a] jury's verdict in a criminal case must be based on the evidence presented at trial, not on extrinsic matters.' [(Quoting People v. Leonard (2007) 40 Cal.4th 1370, 1414.)] A juror commits misconduct if the juror conducts an independent investigation of the facts [citation], brings outside evidence into the jury room [citation], injects the juror's own expertise into the deliberations [citation], or engages in an experiment that produces new evidence [citation]. 'Juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. [Citations.] "The requirement that a jury's verdict 'must be based upon the evidence developed at the trial' goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. . . . [¶] In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." [(Quoting Turner v. Louisiana (1965) 379 U.S. 466, 472-473, fn. omitted.)] As the United States Supreme Court has explained: "Due process means a jury capable and willing to decide the case solely on the evidence before it . . . ." (Smith v. Phillips, supra, 455 U.S. at p. 217, italics added . . . .)' " (People v. Wilson (2008) 44 Cal.4th 758, 829-830.)
Although jurors can commit misconduct by "present[ing] as facts specialized knowledge they claim to possess" (People v. Allen and Johnson (2011) 53 Cal.4th 60, 76), they are not required " 'to shed their backgrounds and experiences at the door of the deliberation room.' " (Ibid.) Accordingly, a court must distinguish "between the introduction of new facts and a juror's reliance on his or her life experience when evaluating evidence" (ibid.), because the former is misconduct but the latter is not. (Id. at pp. 76-78.)
Evaluation of the Deliberations Misconduct Claim
Even assuming the issue is preserved, we are unconvinced on this record that the Juror 2's comments were misconduct. Here, the jury heard conflicting evidence on why, and under what circumstances, a child molestation victim might recant her statements to police alleging a molestation, and the voir dire showed the potential for children to make false accusations of molestations and for recanting were matters of which potential jurors were already aware. We are aware of no law holding a juror commits misconduct by drawing on his or her own life experience or on matters that are part of the public consciousness when evaluating evidence introduced at trial, and the law appears to be to the contrary. (See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 57-58; People v. Pride (1992) 3 Cal.4th 195, 267-268; People v. Yeoman (2003) 31 Cal.4th 93, 162 [no misconduct by jurors recounting personal experiences involving drugs because effect of drugs, although a proper subject of expert testimony, has become a subject of common knowledge among laypersons].)
Johnson apparently did not assert below that Juror 2 committed misconduct by relying on extraneous evidence during deliberations, and therefore the record is ambiguous as to what was said in relation to what topic. At best, Juror 10 stated the jury was discussing "how somebody might feel" or "if somebody would change their story about being raped," and Juror 2 made the cryptic comment that, "No, that's not the way it is. That's not what happened when I was raped," and that Juror 2 was "raped more than once," but she did not "talk about the circumstances" of her rape. Because it was Johnson's burden to show misconduct (Carpenter, supra, 9 Cal.4th at p. 657), and " '[w]e will not presume greater misconduct than the evidence shows' " (Lewis, supra, 26 Cal.4th at p. 390), we have substantial doubt that Johnson has shown Juror 2 overlaid any "expertise" onto the issues in dispute, and therefore we question whether the issue was preserved. However, because we conclude it is not misconduct for a juror to rely on his or her life experiences to examine the evidence, it is unnecessary definitively to determine whether the issue was waived.
Conclusions
We are convinced, on this record, Johnson has not satisfied his burden of proving that misconduct based on intentional concealment occurred, or that the unintentional nondisclosure resulted in the seating of a juror who was sufficiently biased that she was unable to perform her duty to fairly and impartially evaluate the evidence. We are unconvinced the cryptic comments during deliberations represented anything more than a juror who relied on her life experience when evaluating evidence. We conclude the trial court did not err when it denied Johnson's motion for a new trial based on jury misconduct.
C. The Inadequate Voir Dire Claims
Johnson alternatively argues, assuming Juror 2 did not commit misconduct because the questions posed to her on voir dire were not sufficiently pointed to have reasonably required her to reveal that she had been the victim of a sexual assault, the trial court abused its discretion by conducting an inadequate voir dire and his counsel provided inadequate assistance when counsel failed to remedy that inadequacy. It is "clear that 'the conduct of voir dire is an art, not a science,' so ' "[t]here is no single way to voir dire a juror." ' [(Quoting People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.)] [¶] 'The Constitution . . . does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.' [(Quoting Morgan v. Illinois (1992) 504 U.S. 719, 729.)] The high court has 'stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias.' (Mu'Min v. Virginia [(1991) 500 U.S. 415, 427] [trial court is not required to ask content-based questions regarding pretrial publicity]; [citation].) Accordingly, 'the trial court retains great latitude in deciding what questions should be asked on voir dire,' and ' "content" questions,' even ones that might be helpful, are not constitutionally required. (Mu'Min v. Virginia, supra, at pp. 424, 425.) To be an abuse of discretion, the trial court's failure to ask questions 'must render the defendant's trial fundamentally unfair.' (Id. at pp. 425-426.) 'Such discretion is abused "if the questioning is not reasonably sufficient to test the jury for bias or partiality." ' [(Quoting People v. Box (2000) 23 Cal.4th 1153, 1179.)]" (People v. Cleveland (2004) 32 Cal.4th 704, 737.) We are instructed, unless the voir dire by the court and the parties was "so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal." (People v. Holt (1997) 15 Cal.4th 619, 661.)
We conclude, as a whole, the questioning was reasonably sufficient to test the jury for bias or partiality, and therefore was not so inadequate that we can say the resulting trial was fundamentally unfair. The court iterated, and reiterated, that its focus was on whether, given "the nature of the charges and general subject matter . . . , how many of you believe that no matter how hard you tried, you could not . . . act fairly and impartially as a trial juror," and although Juror 2 did not raise her hand, numerous others did. The court then asked, in response to the numerous hands raised, whether this was "in large part" because they had been touched by the subject of child molestation, and then individually questioned those numerous jurors who raised their hands. Although the court eventually excused most of the people who had raised their hands to the "inability to be fair" question (as refined by the "based on personal experience" question), including one who had not been personally touched by molestations or sexual assaults but had personal antipathy toward alleged child molesters, the court retained three prospective jurors who stated that, notwithstanding having been personally touched by molestations or sexual assaults, they could be fair and impartial jurors. The court then resumed questioning of the entire remaining panel and again emphasized the fundamental question was whether any prospective juror believed he or she could not objectively decide the facts based on reason and logic rather than emotion, or whether any juror (if that juror were in Johnson's shoes) would honestly have to say that Johnson would not want him or her on the jury. The court also obtained an affirmative statement from the jurors, including Juror 2, that they could be fair and impartial, and gave the jurors a final opportunity to reveal anything that might be germane to the juror's ability to serve on the jury.
Because the questions focused on the core inquiry—whether there was anything that might inhibit the prospective juror from acting fairly and impartially—the questions as asked by the court and as supplemented by the questions posed by defense counsel " ' "provided an adequate basis upon which the parties were able to exercise challenges for cause as well as peremptory challenges." [Citations.]' [Citation.] In these circumstances, the trial court had no duty to compel counsel to explore more thoroughly the views of the prospective jurors, or to engage itself in additional questioning." (People v. Foster (2010) 50 Cal.4th 1301, 1324-1325.)
Johnson asserts the voir dire was insufficient, and his attorney provided inadequate assistance of counsel in not curing the deficiency by either objecting to the court's voir dire or by asking further follow up questions, because the voir dire did not ask one of the questions in the form recommended by the Judicial Council in the California Standards of Judicial Administration. (Cal. Stds. Jud. Admin., § 4.30.) Standard 4.30, subdivision (b)(16), recommends the jury be asked "Have you or, to your knowledge, has any relative, close friend, or anyone with whom you have a significant personal relationship, ever been the victim of any crime?" However, Standard 4.30 makes clear that the purpose of voir dire is to ask "all questions necessary to insure the selection of a fair and impartial jury" (id. at subd. (a)(2)), and any voir dire that did not "use the Standards verbatim does not necessarily mean that voir dire failed to expose prospective jurors who were biased or unable to follow the law. [Citations.] Nor does any technical deviation from the Standards excuse a reviewing court from examining ' "the entire voir dire" ' to determine whether it was sufficient to secure an impartial jury." (People v. Contreras (2013) 58 Cal.4th 123, 145.) We are satisfied that the voir dire as a whole was reasonably sufficient to ask whether, in light of the charges, the jurors could act fairly and impartially, and that inquiry was reasonably sufficient to test the jury for bias or partiality (People v. Cleveland, supra, 32 Cal.4th at p. 737); therefore, the absence of a specific question recommended by the Judicial Council did not render the voir dire "so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair." (People v. Holt, supra, 15 Cal.4th at p. 661.)
Our conclusion that the voir dire was adequate to unearth any jurors who could not act fairly and impartially convinces us that Johnson's subsidiary claim of inadequate assistance of counsel is meritless. To prevail on that claim, a defendant is required to show both that (1) counsel's performance was deficient by falling below an objective standard of reasonableness under prevailing professional norms and (2) counsel's errors prejudiced the defense. (People v. Hernandez (2012) 53 Cal.4th 1095, 1105.) In assessing the first prong, we "indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel." (People v. Gray (2005) 37 Cal.4th 168, 207 (Gray).)
Because of the presumption, when "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (Gray, supra, 37 Cal.4th at p. 207.) Here, a reasonable counsel could have concluded (as have we) that the court's voir dire was sufficiently probing to satisfy the court and counsel that Juror 2 could act fairly and impartially in judging the facts presented, even though she had been the victim of a crime that was not a sexual molestation. Because Johnson's claim on appeal necessarily fails as to the first prong, his appellate claim of ineffective assistance of counsel must be rejected. (Gray, supra, 37 Cal.4th at p. 207.)
Indeed, the record on appeal may shed light on why counsel acted or failed to act in the manner challenged: counsel argued (in the new trial motion) that "[t]he question was clear and unequivocal," which suggests counsel believed any biased juror should have revealed such bias in response to the court's voir dire. Although the appellate claim of ineffective assistance of counsel must on this record be rejected, Johnson is not foreclosed from raising the claim in a petition for writ of habeas corpus. (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
III
THE EVIDENTIARY CLAIM
Johnson argues the court abused its discretion when it rejected his attempt to introduce evidence concerning allegedly false accusations of rape made by T.S.
A. Background
Prior to trial, the parties litigated whether evidence of a prior molestation involving T.S. would be admitted. The prosecution, arguing against admission, noted that T.S. had been molested at age 10 by a male employee of the group home where she had been living. T.S. reported the employee had touched her vagina either "over or under" the shorts she was wearing while she slept. The employee was subsequently charged with molesting T.S. and another child, and the employee ultimately pleaded guilty to the charge alleging he had committed a lewd act on T.S. and was sentenced to three years in prison. The prosecution asserted the evidence was inadmissible under both Evidence Code sections 1103, subdivision (a) and 782. The defense asserted that, although the molestation by the employee was not "anything more than a touching over underwear, . . . [T.S.] maintains to this day that she was vaginally raped by [the employee], although the police report[] . . . clearly do[es] not support this version of events." The defense argued the evidence was admissible and that neither Evidence Code section 1103 nor Evidence Code section 352 should bar its admission.
The court concluded the admissibility analysis was governed by Evidence Code section 1103 rather than by Evidence Code section 782. The court indicated that, based on the limited information available to the court, the evidence was subject to exclusion under Evidence Code section 352 because it would be "unduly time consuming and/or unduly likely to confuse the trier of fact." However, the court indicated its ruling would be "subject to reconsideration" as the trial progressed and additional testimony was admitted. The court explained, in response to the defense argument that the evidence was "extremely probative" on T.S.'s credibility, the court believed that "whether [T.S.] at age ten said that she was abused by being fondled by this individual . . . , or whether she characterized or mischaracterized it as a rape[,] is not persuasive to me as to the admissibility of that evidence."
B. Legal Framework
A defendant generally cannot question a sexual assault victim about his or her prior sexual activity. (Evid. Code, § 1103, subd. (c)(1); People v. Woodward (2004) 116 Cal.App.4th 821, 831.) A limited exception is provided if the victim's prior sexual history is relevant to the victim's credibility. (Evid. Code, § 1103, subd. (c)(5).) However, "[b]ecause the victim's credibility is almost always at issue in sexual assault cases, [Evidence Code section 782] specifies a procedure requiring an in camera review of the proffered evidence to diminish the potential abuse of [Evidence Code section 1103, subdivision (c)(5)]. The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in [Evidence Code] section 352 are substantially outweighed by the probative value of the impeaching evidence." (People v. Chandler (1997) 56 Cal.App.4th 703, 707-708, fn. omitted.)
Evidence Code section 782 provides for a strict procedure that includes a hearing outside the presence of the jury prior to the admission of evidence of the complaining witness's sexual conduct. (Chandler, supra, 56 Cal.App.4th at pp. 707-708.) "Evidence Code section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility." (People v. Bautista (2008) 163 Cal.App.4th 762, 782.) The procedures provided under Evidence Code section 782 and the discretion provided to the trial court in determining admissibility "recognizes both the right of the victim to be free from unwarranted intrusion into her privacy and sexual life beyond the offense charged and the right of a defendant who makes the necessary sworn offer of proof in order to place the credibility of the complaining witness at issue to fully establish the proffered defense." (People v. Rioz (1984) 161 Cal.App.3d 905, 917.) "Great care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a 'back door' for admitting otherwise inadmissible evidence." (Id. at pp. 918-919.) "Evidence Code section 782 vest[s] broad discretion in the trial court to weigh the defendant's proffered evidence, prior to its submission to the jury, and to resolve the conflicting interests of the complaining witness and the defendant" (id. at p. 916), and the statute specifically reaffirms the trial court's discretion, pursuant to section 352, to exclude relevant evidence that is more prejudicial than probative. (Ibid.) " 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.' " (Bautista, at p. 782.)
Evidence Code section 782's procedural limitations on introduction of evidence of the sexual conduct of a victim provides that, in prosecutions such as the instant case, "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: [¶] (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court. [¶] (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court." --------
C. Analysis
We conclude the court acted within the discretion provided to it under Evidence Code section 352 when it determined that, even assuming Johnson's offer of proof was true and that the evidence was relevant and had some probative value, its probative value was outweighed by the probability of undue prejudice or the undue consumption of time. (People v. Blackburn (1976) 56 Cal.App.3d 685, 691-692.) Of course, to the extent Johnson's evidence was proffered to show T.S. made false accusations of sexual misconduct to police, the evidence was not probative of that issue absent evidence the prior complaint was false (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457), and the employee's guilty plea to the accusation appears to foreclose that assertion. (See People v. Waldie (2009) 173 Cal.App.4th 358, 363-364 [a true complaint of sexual assault "would have no relevance for impeachment whatsoever"].) Instead, it appears the theory of admissibility proffered below was that T.S.'s general credibility could be denigrated by showing she mischaracterized the touching as a rape when describing it to other unknown persons. The trial court found the probative value of the proffered evidence for that purpose was outweighed by the undue consumption of time and confusion of the issues its introduction would engender, and we cannot find that ruling to be an abuse of discretion. The evidence's probative value on T.S.'s overall credibility was de minimus, because a child's selection of a nomenclature for describing a sexual assault has little relevance to whether she truthfully reported the fact of that assault and, indeed, the jury could have equally inferred T.S. was more accurate in her descriptions of an assault when speaking to authorities, precisely the opposite of the theory of defense proffered by Johnson. Moreover, the undue consumption of time and confusion of the issues is patent: the parties would have had to present evidence on what occurred in the prior molestation, and whether it meshed with her reports to police; the prosecution could be required to call witnesses to rebut the defense claim (that T.S. described the prior molestation as a rape) who could testify she may have described it differently to them; and perhaps additional expert testimony would have been required on how and why children might characterize a touching as a rape. On the theory articulated below, we cannot conclude the ruling excluding the evidence was an abuse of discretion.
On appeal, Johnson argues a new theory of relevance to assert the ruling was an abuse of discretion: that the prior molest evidence would have shown T.S. knew what Johnson was doing was wrong and knew she should report it, and this would have undermined her explanation to police and the Agency worker that she delayed reporting Johnson's misconduct because she did not know what Johnson was doing was wrong. Even assuming this theory had been interposed below (but see People v. Marks (2003) 31 Cal.4th 197, 228 ["general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal"]), Johnson has not convinced us there was any reasonable likelihood either that the court would have changed its ruling (People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel not ineffective for failure to make a fruitless motion]) or that admission of the evidence would have resulted in a more favorable verdict. (In re Jones (1996) 13 Cal.4th 552, 561.) Whether a child might know that a fondling by a stranger was wrong and report it immediately, while simultaneously not recognizing a similar touching by a loving father to be wrong or might trigger other reasons for delayed reporting, could have required a mini-trial on the psychological dynamics contrasting intra-familial abuse with molestations by a stranger, as well as an introduction of the facts necessary to compare and contrast the events surrounding the employee's molestation with Johnson's assault on T.S. Moreover, this additional consumption of time and confusion of the issues would have yielded almost no additional "impeachment" of her statements to police and the Agency worker, because T.S. affirmatively testified those statements were false. Johnson therefore cannot demonstrate either prong necessary to show counsel was ineffective in failing to raise this new theory of admissibility.
Johnson finally argues the exclusion of this evidence violated his federal constitutional right to confrontation. Ordinarily, the application of state rules of evidence such as Evidence Code section 352 does not implicate a criminal defendant's federal constitutional rights. (People v. Lewis (2009) 46 Cal.4th 1255, 1289.) Although Evidence Code section 352 "must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense" (People v. Reeder (1978) 82 Cal.App.3d 543, 553), for the reasons already discussed, the probative value of the evidence proffered was slight and its exclusion did not deprive Johnson of any federal constitutional right. (See also People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of defense evidence "on a minor or subsidiary point" does not interfere with constitutional right to fair trial].) Further, "[a] trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624, italics added.) We see nothing in this record to indicate the jury received a misleading impression of T.S.'s credibility since (1) she testified the reports were lies and therefore admitted she was a liar, (2) she testified she convinced B.B. to lie to police; and (3) Johnson's friend, fiancée, nephew and son testified T.S. was a liar. Indeed, the evidence at trial made clear that the question was not whether T.S. was a liar, but only when she was lying. We are convinced the exclusion of the evidence did not violate the confrontation clause because a reasonable jury would not have received a significantly different impression of T.S.'s credibility had the excluded cross-examination been permitted.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
O'ROURKE, J.
IRION, J.