Opinion
F071917
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS A. NUNEZ, Defendant and Appellant.
Robert L.S. Angres, 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, Lewis A. Martinez and Gregory B. Wagner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF306198 )
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Robert L.S. Angres, 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, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Jesus Nunez guilty of sexually abusing his daughter when she was between the ages of 12 and 14. On appeal, he claims the trial court erred by sustaining a prosecution objection during cross-examination of a rebuttal witness. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2014, then 14-year-old A.N. confided in a cousin that her father, Nunez (then age 38), had been molesting her. A.N. subsequently had a telephone conversation with Nunez in front of the cousin, "put [Nunez] on speaker," and complained to him about the improper touching. The cousin would later testify to hearing Nunez reply, "It's your fault because you look like your mother."
A.N.'s accusations were brought to the attention of her mother (Nunez's ex-wife), who in turn contacted the police. On September 13, 2014, detectives from the Tulare County Sheriff's Department conducted separate interviews with A.N. and Nunez. During A.N.'s interview, which was video-recorded, she alleged that her father had forcibly raped her on numerous occasions over a period of approximately two years. Her statements described various forms of sexual activity including oral copulation, vaginal intercourse, and anal intercourse. She claimed to have previously reported the abuse to an older sister, M.W., but the sister had dismissed the allegations as lies.
The sister is neither a minor nor an alleged victim, but we refer to her by initials only in accordance with the privacy guidelines of rule 8.90 of the California Rules of Court.
The questioning of Nunez occurred in the context of custodial interrogation, following a waiver of his right to remain silent. He initially denied mistreating A.N., characterizing her as a "rebellious girl" who was making false allegations in hope of being removed from his custody and placed into the home of a different family member. When the interrogating detective expressed skepticism, Nunez changed his story. He alleged that A.N. was essentially a sex addict who had aggressively seduced him on a regular basis for close to a year. He had often tried to rebuff her advances, but to no avail. Nunez provided a detailed confession, claiming that he and his daughter had engaged in kissing, caressing, reciprocal oral copulation, and intercourse.
Nunez was charged by information with 18 counts of forcible lewd conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)) and 12 counts of non-forcible lewd conduct with a 14-year-old child who was at least ten years younger than him (id., subd. (c)(1)). It was further alleged that twelve of the offenses involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). The case went to trial in May 2015.
A.N. recanted her allegations prior to trial. In signed statements executed in November 2014 and March 2015, she claimed to have fabricated the version of events provided in her initial police interview. She was a hostile and reluctant witness at trial, and the prosecution was thus permitted to introduce her prior video-recorded statements into evidence. A.N. ultimately testified that Nunez had in fact raped and abused her, and explained that certain family members had pressured her to lie about the events in question.
Nunez testified on his own behalf, denying any wrongdoing. When confronted with the earlier confession, he claimed to have lied to the detectives because they had refused to believe his denials. Nunez had purportedly reasoned that if he told them what they wanted to hear, i.e., confessed, they would release him from custody.
On rebuttal, the prosecution questioned the victim's sibling, M.W. Acknowledging negative feelings toward her sister, the witness confirmed that A.N. had reported the abuse to her and that she had dismissed the allegations as false. M.W. also admitted to posting an ominous statement on her Facebook page on the first day of trial testimony: "Snitches get stiches." The prosecution argued that this corroborated A.N.'s testimony about being pressured to deny the abuse had occurred.
The jury found Nunez guilty as charged and returned true findings on the substantial sexual conduct allegations. The trial court imposed an aggregate prison sentence of 153 years, four months. This timely appeal followed.
The abstract of judgment erroneously indicates a total prison term of 151 years, four months. We may correct clerical errors in the abstract on our own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 185-188.) Accordingly, we order that the abstract of judgment be amended to conform to the oral pronouncement of sentence and the clerk's minutes, both of which reflect that Nunez was sentenced to a two-year term on count 19, plus consecutive eight-month terms for each conviction on counts 20-30, inclusive, plus consecutive eight-year terms for each conviction on counts 1-18, inclusive (two years + seven years, four months + 144 years = 153 years, four months).
DISCUSSION
Nunez complains of being precluded from questioning the rebuttal witness, M.W., as to whether A.N. had ever lied about having sex with other men. The prosecution successfully objected to that line of questioning on relevance grounds. As we explain, there is no cause for reversal.
Additional Background Information
The prosecution moved in limine to exclude any evidence of A.N.'s sexual history outside of the incidents of abuse by her father. The trial court granted the motion, noting that Nunez had not attempted to comply with the statutory requirements for introducing such evidence. In conjunction with its ruling, the trial court advised defense counsel as follows: "[Q]uite frankly, her sexual history ... is irrelevant. Her consent on this matter, whether she seduced your client or not, is irrelevant. Consent is no defense to this crime."
The claim on appeal is based on the following exchange, which occurred during cross-examination of M.W.:
Defense Counsel: You indicated that you told the detective that [A.N.] said that she'd been molested but you didn't believe her. Why didn't you believe [A.N.]?
Witness: Because she has a history of lying.
...
Defense Counsel: Does she have a history of lying about her sexual activity?
Prosecutor: Objection, relevance.
Defense Counsel: Well --
Trial Court: The objection is sustained.
Defense Counsel: Well, when -- what are the things that she would lie about that made you disbelieve her?
Witness: Because she would say that she would have sex with other men.
Prosecutor: Objection, move to strike, relevance.
Trial Court: The objection is sustained. That response is stricken. ... Besides, this gets into improper character evidence. You can have the fact that she believed that [A.N.] does not tell the truth, but on the other hand, you cannot go into specific acts of misconduct.
Nunez argues that evidence of a complaining witness's history of dishonesty is relevant to the issue of their credibility, and, therefore, the objection should have been overruled.
Standard of Review
"A trial court's decision to admit or exclude evidence is reviewable for abuse of discretion." (People v. Vieira (2005) 35 Cal.4th 264, 292.) The erroneous exclusion of evidence is reviewed for prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). If error is shown, the appellant must further demonstrate a reasonable probability that he or she would have obtained a more favorable outcome had the error not occurred. (Ibid.; People v. Earp (1999) 20 Cal.4th 826, 880.)
Nunez claims the challenged ruling violated his constitutional right to present a defense, and thus resulted in federal constitutional error. We reject that argument. "Where a trial court's erroneous ruling is not a refusal to allow a defendant to present a defense, but only rejects certain evidence concerning the defense, the error is nonconstitutional and is analyzed for prejudice under Watson ...." (People v. Garcia (2008) 160 Cal.App.4th 124, 133; accord, People v. McNeal (2009) 46 Cal.4th 1183, 1203; People v. Mestas (2013) 217 Cal.App.4th 1509, 1517 ["exclusion of the evidence of a victim's sexual history does not deny the defendant a fair trial."].)
Analysis
"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions." (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).) The admissibility of such evidence is governed by sections 782 and 1103 of the Evidence Code, which together provide a narrow exception to the general rule of exclusion. (Fontana, supra, 49 Cal.4th at pp. 362-363; People v. Chandler (1997) 56 Cal.App.4th 703, 707 (Chandler).) Section 1103 bars the admission of "opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct," but allows the use of "evidence offered to attack the credibility of the complaining witness as provided in Section 782." (§ 1103, subd. (c)(1) & (5).)
All further statutory references are to the Evidence Code. --------
Section 782 allows evidence of prior sexual activity to be used for impeachment purposes if relevant to determining the credibility of a complaining witness. (§ 782, subd. (a).) Since the victim's credibility is frequently at issue in the prosecution of a sex crime, the statute contains several procedural hurdles. (Chandler, supra, 56 Cal.App.4th at pp. 707-708). To invoke the section 782 exception, a defendant must file a motion "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." (§ 782, subd. (a)(1).) The motion must be accompanied by an affidavit, filed under seal, containing the offer of proof. (Id., subd. (a)(2).) "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." (Id., subd. (a)(3).) At the hearing, the defendant must convince the court that the evidence is relevant under section 780 and is not inadmissible under section 352. If the requisite showing is made, the court will issue an order specifying what evidence may be introduced and the nature of the questions to be permitted. (Id., subd. (a)(4).)
Directing our attention to People v. Tidwell (2008) 163 Cal.App.4th 1447 (Tidwell), Nunez argues that evidence of "false statements about one's sexual history does not fall within the ambit of Evidence Code section 782 and does not require adherence to [its] procedures in order to be deemed admissible." The holding of Tidwell, which involved charges of sexual assault committed against a 21-year-old woman, is that evidence of a prior false report of molestation or rape is relevant to determining the credibility of the defendant's accuser. (Tidwell, supra, 163 Cal.App.4th at p. 1457.) In that case, the defendant maintained the victim had consented to their sexual encounter. Section 782 was found to be inapplicable in that situation "because it was [the complaining witness's] allegedly false complaints that the defense sought to use as impeachment evidence, not her prior sexual conduct or willingness to engage in sexual activity." (Tidwell, supra, at p. 1456.) Here, in contrast, A.N. was not alleged to have made prior false accusations of sexual assault, and her consent was not a relevant issue. (People v. Soto (2011) 51 Cal.4th 229, 245 [" 'Lack of consent is not an element of the offense prohibited by [Penal Code] section 288, subdivision (b), and the victim's consent is not an affirmative defense to such a charge. The victim's consent or lack thereof is simply immaterial.' "].)
Furthermore, a complaining witness's prior accusations of rape or sexual assault are relevant only if the accusations are shown to be false, which is a burden borne by the proponent of the evidence. (People v. Winbush (2017) 2 Cal.5th 402, 469; People v. Bittaker (1989) 48 Cal.3d 1046, 1097.) Nunez made no offer of proof to substantiate the witness's allegation that A.N. had lied about having consensual sex with other men. (See People v. Foss (2007) 155 Cal.App.4th 113, 127 ["If the evidence the defendant seeks to elicit on cross-examination is not within the scope of the direct examination, an offer of proof is required to preserve the issue [for appellate review]"].) He also fails to explain how the witness's assertion could have been proven without delving into A.N.'s sexual history, thereby implicating the provisions of section 782. Thus, we are not convinced the trial court abused its discretion.
In any event, the alleged error cannot be construed as prejudicial. The record contains no evidence upon which we could find a likelihood that the defense would have been able to substantiate M.W.'s assertion, much less a likelihood of a more favorable verdict. Even assuming the necessary corroboration, the impeachment value of M.W.'s testimony was low considering A.N. had already proven herself to be a liar; as between her statements in the police interview and the subsequent retractions, one of those versions of events had to be false. Most importantly, Nunez confessed to the crimes and presented an objectively weak defense at trial. The following exchange between him and the prosecutor underscored his problems of credulity:
Prosecutor: When Detective Klassen and Detective Ramos were talking to you, you thought you would get out of custody if you admitted to having sex with your daughter? Is that your testimony today?
Nunez: Yes. I thought so, yes.
Prosecutor: By admitting to having sex with a 13-year-old about once a week for a year, you thought you'd get out of custody?
[Defense objections lodged and overruled]
Nunez: I thought so, yes.
Prejudice is absent when "the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.) Such is the case here.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting that Nunez was sentenced to a total prison term of 153 years, four months. The clerk shall thereafter transmit a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.