Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC454146
RUSHING, P.J.
Defendant Richard Scott Whicker was convicted of sexually molesting his two prepubescent sons. On appeal he contends that the trial court committed numerous errors in the admission and exclusion of evidence. We agree that the court erred in at least four respects, by admitting extremely flimsy evidence of other inappropriate behavior by defendant toward children; by admitting irrelevant or marginally relevant but highly prejudicial evidence concerning his sexual predilections toward adults; by admitting incriminating extrajudicial statements by his sons without following the clearly prescribed statutory procedure for assessing their reliability; and by misapplying the rule of evidence permitting the admission of an entire conversation, or its relevant portions, when part has been admitted. The sheer number of unsustainable evidentiary rulings makes it impossible for us to conclude that defendant received a fair trial, or that the verdict was not the product of these errors. Accordingly, we will reverse the judgment.
Background
In 1991 defendant met his sons’ mother, whom we shall call Rebecca, via a dial-up bulletin board system. Their first son, whom we shall call Rusty, was born in the winter of 1995 with cystic fibrosis. Their second son, whom we shall call Alfie, was born in the spring of 1998.
This opinion, though unpublished, may be publicly accessible into the indefinite future. We have therefore taken special care to honor this state’s policy against identifying persons, particularly minors, who are “ ‘innocently involved in appellate court proceedings’ ” and as to whom potentially damaging or embarrassing disclosures are made. (See Cal. Style Manual (4th ed. 2000), § 6:18, pp. 224-225.) In addition to avoiding, wherever possible, last names that might help to identify participants, we have taken the liberty of fictionalizing the first names of some participants and adopting regularized spellings in place of certain unorthodox ones.
In late 1999, when Rusty was four years old, he told Rebecca that he and a neighbor boy had been “playing a game called woogies and butts and woogies and mouths.” “Woogie” was the family’s term for a penis. Rusty, who had a speech impediment, was originally understood to say that he participated in this activity with “Justin,” a boy then aged slightly over 10 years. The parents reported the matter to police, and on October 16, 1999, San Jose Police Officer D’Arrigo went to the family’s Foothills apartment, took a statement from Rebecca, and spoke to Rusty. D’Arrigo understood Rusty to say that “Justin” had touched his “woogie” and that “Justin puts his woogie in my butt.”
The matter was assigned to San Jose Police Officer Buell, who on October 28, 1999, interviewed Rusty at the police department’s child interview center. In the interview, Rusty identified the neighbor boy in question as not Justin, but Justin’s younger brother Christian, then aged about four and a half. Buell reported this to the parents, and said that because Christian and Rusty were about the same age, he viewed it as a case of “child sexual play” and was not inclined to take action. They asked him to drop the case, which he did.
The court overruled hearsay objections to Buell’s testimony about his conversation with the parents, declaring without an offer of proof that everything said could come in as “prior consistent or inconsistent statements.”
Several months later, defendant told Rebecca he had found Rusty and Christian together, with one of them sucking on the other’s penis. The boys were kept apart for a few days, and defendant told Rebecca he had spoken to Christian’s parents. A month or two later Christian’s family moved away.
Rebecca testified that in late 2000 or the first half of 2001, while she and the boys were visiting her mother, Rusty remarked, in the presence of herself and her mother, that his dad had touched his woogie. Rebecca questioned him but was unable to elicit any details. She did not discuss it with defendant because she was “afraid of him . . . retaliating with Rusty,” whom she felt he had begun to punish inappropriately. Hoping to find out what had actually happened, she got a referral to a licensed social worker, whom she took Rusty to see. She did not take him again because she felt the social worker had asked an improperly suggestive question by showing Rusty a doll and saying, “Where did daddy touch you?” In November 2000, Rebecca took Rusty to see psychiatrist Ray Cendana, because Rusty was having some behavioral issues. Rusty remained under Dr. Cendana’s care until April 2002.
Beginning in 2000, defendant and Rebecca talked about separation and divorce. As of the fall of 2001, they were on cordial terms, but still had problems. Rebecca testified over a relevancy objection that she felt the biggest problem was defendant’s “dishonesty,” i.e., she couldn’t depend on him. She also testified that during the last couple of years there had been “almost no sexual relationship.” When they had had such a relationship, she testified, defendant had liked to have his nipples pinched during intercourse. During the first couple of years of their marriage, he might have shaved his pubic hairs once or twice. He was concerned about his penis being too small. He never expressed a belief to her that he could make his penis larger by masturbating.
Rebecca testified that in October 2001, during another visit to her mother’s house, Rusty indicated his protruding navel and said, “When my woogie sticks out like that, daddy sucks on it’ or ‘sometimes daddy sucks on it.” She “asked Rusty if he had been told not to tell. And he said no.” Unsure what to do, she took no immediate action. A few days later, however, when Rusty was hospitalized with pneumonia, she told Dr. Cendana what he had said. She knew the doctor was a mandated reporter, and expected the police to get involved.
Dr. Cendana contacted child protective services. On October 17, 2001, then-detective Phan of the San Jose Police Department opened an investigation into Rusty’s allegations of sexual abuse by defendant. He arranged to meet with Rebecca and Rusty on October 24, 2001. Before the interview Rebecca told Rusty that she was taking him there to talk about the stuff that happened with daddy. During the interview, however, Rusty did not answer any questions concerning the allegations. Nor did he answer relevant questions after Phan went and got Rebecca and Alfie and brought them into the room. A videotape of the interview was played for the jury.
After Phan ended the interview, he asked Rebecca if she would be willing to place a “pretext call” to defendant. She agreed to do so and called defendant at work, with Detective Phan listening in and feeding her questions. An edited recording of the call was played at trial. In the portion heard by the jury, defendant alluded to Rusty’s having become “suddenly sexually active” at age four, then remarked, “It doesn’t help that you know, that he caught me you know, that he caught me maybe twice, masturbating, and then he wanted to join me, and it’s like, well, no way.” Defendant told her that while he was masturbating in his bed, Rusty had run into the house and interrupted him before he could cover up. Rusty, he said, had asked him what he was doing, to which he had replied that he “was making my woogie bigger, or something like that.” Then, he said, Rusty had asked “if he could, you know, lie, you know, lie down with me, be in bed with me,” or “do it too,” to which he had “definitely told him no . . . .” Rebecca testified that this was the first she had heard of such an occurrence. When she asked defendant during the call if he would “ever do this kind of thing,” defendant replied that he would not, “even if he [Rusty] was like a thirty year old . . . . Why would I want him to like grow up thinking of, thinking that his dad is a homo?” In response to further questions he said, “I’m not interested in guys. I’ve never been interested in guys.”
Shortly after Rebecca’s report to Dr. Cendana, Detective Phan told her that the children would be removed from her custody unless she or defendant moved out of the house. She called defendant at work and told him he needed to move out because allegations of sexual abuse had been made against him. Defendant then moved out. About a week later, Rusty asked Rebecca if daddy was dead. She “told him that, no, daddy had to move out because of what happened with you and daddy.” She may have said that he had to move out to keep them safe. She had made such statements to them repeatedly, most recently within a few weeks of trial.
For some months Rebecca disregarded the police “order” not to allow contact between the boys and defendant. The boys saw defendant at holidays, he sometimes watched over them for her, and they sometimes went over to his parents’ house. They stayed overnight with him several times. Eventually a social worker told Rebecca she had to stop permitting such contacts.
In early 2002 the boys were brought under the jurisdiction of the juvenile court, which set up weekly supervised visits with defendant. Rebecca testified that during this period Rusty told her more details concerning sexual contact between defendant and him. Also, around April or May 2002, after a bath, Alfie told her “something about daddy's penis that stuff—pee would come out and daddy had to go take a shower. Alfie said something about his own penis, too.”
Alfie’s revelation came about eight months after defendant moved out of the house. Prior to this revelation, Rusty had made multiple sexual overtures to Alfie. He exposed himself and told Alfie, who was breast-feeding, that his, Rusty’s, “penis was a boob and he should suck on it.” Rebecca had also seen them touching each other’s penises with their hands during or immediately after a bath. When she initially asked Rusty about sexual contacts with Alfie, he denied it. Only after visiting a counselor did he tell her he had had sexual contact with Alfie. Rusty never said that he had learned this behavior from his father. Nor did Alfie say that he had learned any of that behavior from his father. However Rusty said that first there had been “the stuff with daddy,” then after he moved out “I did stuff with Alfie.”
Rebecca reported Alfie’s allegations, as well as the further information from Rusty, to a social worker in the juvenile court matter. Apparently as a result of this information, all visitation between defendant and the boys ceased in May 2002.
Around that time defendant “met” his fiancée-to-be, Angie T., in an internet chat room. She then lived in Maine, and in June 2002, they decided he should come there for a face-to-face meeting. Defendant eventually moved into a Bangor apartment with Angie, though he returned to California three times for juvenile court matters. Defendant did not immediately tell Rebecca how to contact him, but within a month or two he included her in a “mass e-mail” with his new contact information. Based on this evidence, the prosecution secured an instruction on flight as circumstantial evidence of guilt, arguing to the jury that defendant moved to Maine in order to impede police investigation into these allegations.
The prosecution was permitted to show that Detective Phan failed to locate defendant in Maine until December, 2002. This failure can hardly be attributed to defendant, given Rebecca’s testimony that by August or September she knew how to reach him. In the absence of further explanation the detective’s failure to contact defendant at an earlier date appears patently irrelevant.
Meanwhile, on July 12, 2002, Rusty and Alfie were interviewed by Detective Asato. Rebecca was not present in the interview room. Before the interview, however, she told the boys they were being taken to talk about “the stuff that they did with daddy.” Video recordings of the interviews were played for the jury. In Rusty’s case, Detective Asato was still asking preliminary questions when Rusty volunteered, “You know what? [¶] . . . . [¶] My dad he—he sucked on my wiener.” He went on to say that defendant had also touched his wiener with his hands, and that this had happened “[a] lot.” On the first occasion, he said, he had been sleeping in his bed when his dad awakened him and “just started doing it.” It would happen when his mom wasn’t there. He thought he was “[m]aybe five” when it started. Later, when asked what his dad used his penis for, Rusty said. “[F]or me to suck on.” He went on to say, however, “I never suck on his because it was too much fur—[¶] . . . . [¶]—and it also tasted yucky.” He said his dad had tried to make him do that “about a million” times. Later he said his dad had in fact “made me suck on it” for “about a minute.” Still later he said “this type of stuff” happened more than five times.
When these things would happen, Rusty said, it was in “mommy’s room.” It was always at nighttime when his mom wasn’t there. His little brother was there. His dad was kissing him while he had his hands on his body, and Rusty was sucking on his dad’s nipples, when “suddenly” something “all white” came out of his daddy. It went on his daddy so that he needed to take a shower. His dad never touched himself.
In his separate interview Alfie told Asato he was four. Asked if he knew why he was there, he replied, “to tell you stuff,” i.e., “that daddy is playing with my woogie.” Asked how his daddy was playing with it, he replied, “Sucking it.” Asked by Asato if anyone told him to tell her that, he said, “Mommie did.” He said he had been in his parents’ bedroom when his dad sucked on his woogie. Nobody else was in the room. His mom was in the living room. His dad sucked on his woogie five times. His dad never said anything to him while doing it: “You can’t talk when you are sucking on something.” He said he told his mom about it right after it happened.
The prosecutor argued to the jury that this statement had “a ring of truth” because “[t]hat type of a response from a four-year-old cannot be coached, cannot be planted. It . . . really illustrates how a four-year-old really thinks about this behavior and thinks about this situation and shows that that he’s really giving her an honest account of what was happening.” On the contrary, what it shows is a precocious four-year who is “really thinking” about the questions he is being asked.
In January 2003, Detective Phan contacted Bangor authorities and asked them to question defendant. They did so on February 5 and 28, 2003. An edited audio recording of the second interview was played for the jury. In it, defendant steadfastly denied any memory of sexual contact with Rusty or Alfie. He said the boys might have seen him naked upon coming into the bathroom after he took a shower. He also described an incident “like two and a half years ago,” when Rusty walked in on him while he was masturbating in his bedroom. Rusty burst in asking him to fetch Rusty’s bike, but then said, “[W]hat are you doing?” whereupon defendant told him he was “making my penis bigger,” or something to that effect. Rusty asked if he could do it too, to which defendant said no, and “changed the subject immediately.”
When detectives asked what had triggered defendant’s impulse to masturbate, he said that he might have been trying to enlarge his penis, which he considered small. The detectives asked where he had gotten the idea that he could enlarge his penis by masturbating; he replied that he had gotten this idea from the internet. When asked why Alfie would report seeing white stuff bubbling out of his penis, defendant repeated that Alfie had never seen his penis, and then added, “Whenever I do masturbate I’ve never like gotten myself to a point of ejaculation . . . .” Beaulieu asked what would be the point of masturbating in that case, and defendant replied, “to try and loosen things up down there. Trying like get it longer.” After the detectives expressed disbelief that he had never masturbated to ejaculation, defendant said that he had “almost never” done so, and though he might have done it in college, he had no memory of it. He insisted that he had not done so “since I was married to [Rebecca],” or during “[t]he entire time since the boys were born . . . .” When he masturbated, he said, “it would always go soft” because he would “lose interest or just can’t keep[—]can’t keep it up.”
Detective Cotton denounced these statements as “a lie” and asserted that defendant was “deliberately trying to repress your memory.” Defendant then said that he remembered masturbating after the birth of the boys “because hell it was like[—]went three whole years without having sex with my wife. And I remember just having a desire, having a need.” But, he said, he would look through men’s magazines and swimsuit magazines and would not get an erection. In his then-new relationship with Angie, however, he had “sex almost every day” and was “able to get an erection just fine . . . .” Asked what would help him to get an erection before, he said, “Playing with my nipples or whatever. [¶] . . . . [¶] Pinching my nipples and stuff like that.”
Pressed by the detectives to acknowledge some misconduct toward the boys, defendant said, “I’m not exactly sure if I did make a mistake because everyone is pointing at me and saying you must have done something Rick. It’s like OK fine I must have done something. I really wish I knew what it was. And if there is some kind of repressed emotion, if it’s something spit [sic] personality, if it’s some psychosomatic thing, then fine you know. You know lock me up, throw away the key. [¶] . . . . [¶] . . . . I, in my own and going through everything that’s in my memory, I don’t remember doing anything.” Detective Beaulieu suggested that defendant might indeed be afflicted with “a split personality thing” or “some psychometric thing” that was interfering with his memory. Pressed to acknowledge this as a possibility, defendant said, “It’s possible that I was taking antidepressants and they weren’t working at all and who know what I did.” The detectives continued to press defendant to acknowledge that it was “possible that something occurred that makes this child say this . . . .” Eventually defendant said, “I think it’s possible” The detectives then suggested that, as a result of defendant’s taking antidepressents, “something could have happened that was out of your control.” Defendant acceded to the possibility. Then, however, he asked why he would have no memory of the events, adding, “Why would I be encouraging my son to go a shrink?” Speaking of Rusty, he said, “for a whole year he didn’t say anything to the psychiatrist and then suddenly in October here he suddenly makes this outrageous remark to my wife.” Later he said, “For the past 18 months I’ve been thinking that my ex-wife has been planting these ides in my boys[’] head. And you know everyone is saying no that’s no[t] possible.” After the detectives continued to suggest the possibility of repressed memory, defendant said “It’s possible. [¶] . . . . [¶] Anything’s possible.” The detectives then persuaded defendant to write a letter of apology to the boys, which they said they could forward to the social worker in the boys’ dependency case “to get things rolling towards showing that you feel and want to reunify with the kids.” Defendant repeatedly expressed his love for his children and his desire to see them again, which he had not done since May. Detectives repeatedly suggested that an apology letter might advance this objective.
Defendant wrote such a letter, in which he stated, “Some people that I’ve been talking to and that have been helping me so that I can see you guys again, told me that they want to keep helping. . . . These people say that I might be forgetting what happened when I was living with you and Mommy. That sometimes I might have done some bad things, but now my brain won’t let me remember it. If I did do bad stuff to you or [Alfie], then I’m really sorry. I’m so incredibly sorry if I hurt you and made it so I’m not living with you guys right now. I miss and love both of you so much! I can’t remember doing any bad stuff, but I guess it’s possible that my brain doesn’t remember it, or maybe I really didn’t do these bad things. I just don’t know. But I think these people that I’ve been talking to are going to help us, so I can be some one safe to be around and be a better Daddy. . . .”
After Detective Beaulieu reported the results of the interview to California authorities, a warrant issued for defendant’s arrest. He was arrested in Maine on March 20, 2003. On June 17, 2004, an information was filed charging defendant with four felonies: (1) aggravated sexual assault consisting of oral copulation by coercion upon Alfie when the latter was three and four years old (Pen. Code, §§ 269, 288a); (2) lewd and lascivious act by coercion upon Alfie during that same time (Pen. Code, § 288, subd. (b)(1)); (3) aggravated sexual assault consisting of oral copulation by coercion upon Rusty when he was three, four, and five years old; and (4) lewd and lascivious act by coercion upon Rusty. It was further alleged that defendant had committed the charged offenses against more than one victim, so as to trigger the enhanced punishments provided by Penal Code sections 667.61, subdivisions (b) and (e).
According to a recital in the prosecutor’s motion in limine, defendant had been indicted by a grand jury in 2003, but the district attorney dismissed that indictment and refiled the underlying complaint, leading to the information on which the matter was tried.
After a jury trial before Judge Joyce Allegro, defendant was convicted on all counts, and the multiple victim enhancement was sustained. The court sentenced defendant, who was then 35 years old, to four consecutive terms of 15 years to life, making him ineligible for parole until he served 60 years.
I. Jailhouse Phone Calls
A. Background
Defendant contends the trial court erred by permitting the jury to listen to two phone conversations between defendant and his then-fiancée Angie, which were recorded while he was in jail. The statements to which he particularly objects may be placed in four categories: (1) Statements tending to show that he was sexually attracted to adult males; (2) statements concerning the type of male to which he was attracted; (3) statements concerning Angie’s involvement in a ménage à trois with a man and a woman; and (4) statements concerning defendant’s masturbation into a tube sock while in jail. We have concluded that evidence in the first and last categories was potentially relevant and, properly circumscribed to limit its prejudicial potential, could in the trial court’s discretion be admitted to establish the falsity of earlier statements and thus to support an inference of consciousness of guilt. Evidence in the second and third categories, however, possessed little if any probative value, and its admission was a highly prejudicial abuse of discretion.
Defendant told Bangor police detectives that he had never masturbated, or had no memory of masturbating, to the point of ejaculation. He also told them, as he told his estranged wife Rebecca in the “pretext” phone call, that he had no sexual interest in men. In the first of the two jailhouse phone conversations heard by the jury, defendant discussed with his fiancée Angie a sexual encounter in which she proposed to participate with a couple, male and female. Defendant told her to “memorize details” concerning the male participant, specifically whether he was circumcised, “how much body hair he has,” and the length of his penis. She asked him to explain “why it matters.” He replied in pertinent part, “[I]t’s like so uh, extremely sensitive, uh, you know, the tip on an uncircumcised person is so extremely sensitive that, you know, I mean, you can actually hurt them by doing certain things. [¶] . . . . [¶] So if you, you know, he’s circumcised then, you, then I know that, you know, I can do certain things like, you know, nibble and, and you know, other things. And you know, if he’s uncircumcised, then I can’t. [¶] . . . . [¶] Because, you know, then he’d be in agony.”
The second call took place after the encounter. Angie told defendant she had taken “the notes you wanted me to take,” that the man had almost no body hair, was circumcised, was “not huge,” and had “extremely sensitive” nipples. Defendant’s only responses to these statements were signals of acknowledgment, e.g., “Mm hmm,” “Okay,” and “Huh.” He asked her at one point whether she “ever ha[d] [her] hand on . . . him,” and requested “details” when she said she had been “mostly the upper-body person.”
Later in the conversation defendant said that he didn’t know whether to be envious of Angie’s “three times” when he had “only had one time today.” This produced the following exchange: “[ANGIE]: One—whoa, whoa, whoa, what, where, what now? [¶] [DEFENDANT:] Well, I, I had one time today. [¶] [ANGIE]: Oh. Had some time to yourself, did you? [¶] [DEFENDANT:] Yeah. [¶] [ANGIE]: Oh. [¶] [DEFENDANT:] And you know, me, me and, me and my tube sock uh, got along quite nicely. [¶] [ANGIE]: (Laughs.) That’s funny. [¶] [DEFENDANT:] Well, it’s, you know, it’s gotta go somewhere, and I figured, you know, tube sock rather than the sheets, so. [¶] [ANGIE]: Hmm. Yeah, the tube sock’s a lot easier to wash out. [¶] [DEFENDANT:] Yes. And it’s very absorbent, too. I love you. [¶] [ANGIE]: I love you.”
B. Contentions
Defendant raises several interrelated claims of error in the admission of the foregoing conversation as well as his statements to Maine detectives that he never masturbated to the point of ejaculation: (1) The phone calls were “merely introduced to paint him as a ‘bad character.’ ” (2) It was “likely that jurors would simply be offended by the evidence and punish him for his deviance rather than for his guilt on the charges.” (3) “[I]t was preposterous to infer that his possible predisposition to engage in oral copulation with an adult male meant that he would engage in it with a male child”; any such inference would require a foundation in expert testimony, which was neither offered nor admitted. (4) The details of Angie’s sexual encounter with the other couple, as reported by her in the second call, were “totally gratuitous and prejudicial,” “completely irrelevant to the charges,” and “served only to paint [defendant] as a sexual deviant and a person of bad morals and bad character.” (5) The evidence also diminished Angie’s credibility as a witness crucial to the defense.
Respondent lumps defendant’s pretrial statements together and argues that they were all admissible to show consciousness of guilt. Respondent also notes, more narrowly (and plausibly) that this rationale applies to defendant’s statements relating to sexual interest in males generally and masturbating to ejaculation. Respondent also asserts that defendant’s “statement that he engaged in the identical sex act complained of by the victims is clearly relevant and of high probative value that outweighed any prejudicial effect. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1023 [defendant’s pretrial statement was admissible not for its truth but to support the credibility of the witness].)”
C. Prior False Statements to Show Consciousness of Guilt
One of the rationales for introducing the jail conversations was that they tended to show the falsity of three prior statements by defendant. First, in the “pretext call” with Rebecca, he told her he was “not interested in guys. I’ve never been interested in guys.” A few seconds later, he emphasized the point: “I’m not interested in old guys. I’m not interested in middle age guys. I’m not interested in guys.” Second, he similarly insisted to Maine detectives that he had no sexual interest in males, and that when he watched pornography “just the image of a penis you know I lose interest and get turned off by it.” Third, he told the detectives that he had never masturbated to the point of ejaculation or that if he had it was in college and he could not remember it. During the jail phone call, defendant expressed interest in adult male sexual partners and indicated that he had masturbated to the point of ejaculating into a sock.
A false or misleading statement by a defendant relating to a charged offense “may show [he] was aware of [his] guilt” and thus may be viewed by the jury as circumstantial evidence of guilt. (CALCRIM No. 362; see People v. Mendoza (1987) 192 Cal.App.3d 667, 672.) Where the prosecution offers an assertedly false statement for this purpose, the untruth of the statement may be established by any otherwise proper evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498.) It follows that a relevance objection is properly overruled when the challenged evidence tends to establish that the defendant lied about matters bearing on the accusations against him under circumstances supporting an inference of guilty knowledge.
The court neglected to instruct the jury on this principle, but neither party comments on that omission. The prosecution urged the jury to infer consciousness of guilt from the assertedly false statements. The defense argued against it.
Both parties have discussed the evidence as involving impeachment, but this is a misnomer. Properly speaking, “impeachment” refers to the process of discrediting a witness (or hearsay declarant) whose testimony (or statement) has been admitted as evidence of its truth. When a statement is offered for its falsity, as the statements at issue here were, impeachment does not enter into the matter.
Recognition of the potential relevance of this evidence, however, is only the starting point. The next question is whether it should have been excluded, or limited, under Evidence Code section 352 (§ 352). “When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.” (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
Here the trial court was required, in the first instance, to determine the extent to which defendant’s earlier statements, if found to be false, reasonably tended to establish consciousness of guilt. Such an inference becomes weaker as the subject matter becomes more remote from the accusations and as the evidence points to alternative motives for deception. Thus defendant’s denials to Rebecca that he had any sexual interest in men supported only a weak inference, if any, of consciousness of guilt. Defendant was not lying to a police officer or investigator, and although Rebecca was acting as a police agent, she was doing so surreptitiously; hence the term “pretext [more accurately, “pretense”] call.” So far as matters appeared to defendant, he was lying only to his estranged wife about certain sexual predilections that were incompatible with conventional matrimony, not to mention monogamy, and which he had obviously always concealed from her. Surely this concealment was not originally motivated by an intention to conceal the future molestation of their as-yet unborn children. It obviously arose from other motives. Apart from a presupposition of guilt, there was no rational basis to suppose that those original motives (now reinforced by the desire to conceal his own deception) had been displaced by consciousness of guilt. There was simply no basis for a rational inference that he was speaking from that motive. His denials to Rebecca therefore lacked substantial probative value.
At the same time those denials, if shown to be false, possessed unique and significant potential for prejudice because they painted defendant as a man who lied to his wife about matters intimately affecting their marriage. This may have been despicable of him, but that is no reason to admit the evidence; quite the reverse. The inference of guilty conscience from false statements is not intended as some kind of punishment for lying. It is intended to aid the search for truth. It can only justify the admission of evidence to the extent that the lying appears in fact to have been motivated by consciousness of guilt. On this record, evidence that defendant lied to his wife about his sexual interest in men was nothing but character assassination. It was an abuse of discretion to expose the jury to that evidence.
This analysis does not extend to defendant’s assertedly false statements to the Maine detectives that he had no interest in men and that he had never masturbated (or could not recall masturbating) to the point of ejaculation. Defendant issued these denials to persons he knew were investigating the charges against him. Nor does the evidence strongly suggest alternative motives, as it does with his misstatements to his wife. A factfinder could reasonably infer that these statements to the detectives, if false, were motivated by a desire to deflect inquiries that might tend to establish his guilt. Nor does evidence of these misstatements carry the same potential for prejudice that accompanied the evidence of his lies to Rebecca.
In conducting the section 352 calculus, however, the court must consider not only the probative value and prejudicial potential of the assertedly false statement but also of the evidence offered to establish its falsity. Here it would have been proper to prove that the statements to the detectives were false, but only by evidence not so inflammatory as to impede the search for truth, and critically, not by evidence more inflammatory than was necessary. The jailhouse phone conversations between defendant and Angie had an obvious potential for prejudice in that they disclosed sexual practices and preferences by both conversants going well beyond defendant’s apparent interest in adult male sexual partners and well beyond the boundaries of what many people would consider aberrant, immoral, perverse, or even execrable. None of this information was necessary to show that defendant made false statements to the Maine detectives. All that was necessary for that purpose was to establish that, in speaking to Angie, defendant had (1) expressed an interest in, and seemingly firsthand knowledge of, engaging in sex with adult males; and (2) reported, on at least one occasion, masturbating to the point of ejaculation. There is no evidence that these facts could not be elicited by asking Angie about them. If she were asked and gave unsatisfactory answers, the way might have been open to making some use of the jail conversation, if only to refresh her memory. Under no circumstances, however, could the need to show the falsity of defendant’s statements to detectives justify the wholesale introduction of Angie’s ménage à trois and the other salacious details of their conversations.
We conclude that it was not an abuse of discretion to admit evidence that defendant made false statements to the Bangor detectives about his sexual interest in men and his masturbation practices. However, it was an abuse of discretion to admit evidence that defendant lied to his wife about his sexual interest in men. Moreover, the wholesale introduction of the jail phone calls cannot be justified on the basis that it was necessary to establish the falsity of defendant’s statements to detectives.
D. Predisposition
The record suggests a broader theory for admitting the jail calls, i.e., that they supported an inference that defendant was predisposed to commit acts of the type reported by Rusty and Alfie. The prosecutor initially argued that the calls established defendant’s interest in a particular type of adult male—one with minimal body hair, diminutive genitalia, and a circumcised penis, and that this tended to corroborate Rusty’s and Alfie’s accusations, since both of them, being prepubescent, had hairless bodies and small penises, and Rebecca testified that the boys were circumcised. The prosecutor argued that the evidence was relevant insofar as it showed defendant’s “preference toward performing oral sex on circumcised males.” Later, in response to defense objections that the evidence was more prejudicial than probative, the prosecutor said that without this evidence, all the jury would know was that defendant had been married to the boys’ mother and was now in a heterosexual relationship. “That’s naturally going to raise a doubt for some jurors, was this heterosexual man having oral sex with his boys. So I think the fact that he has sexual interest in males has relevance on that point.”
A recurring pattern in the prosecutor’s arguments and the trial court’s rulings was the supposition that evidence can be admitted, without otherwise articulating its relevance, just to avert some exculpatory supposition the jury might otherwise entertain. Here the prosecutor, unable to articulate a solid basis for admitting evidence of defendant’s interest in adult men, argued instead that in the absence of such evidence, the jury might draw an improper inference from defendant’s interest in adult women. The prosecution is entitled to forestall inappropriate inferences with otherwise admissible evidence, but its desire to do so is no substitute for a coherent theory of admissibility. Here the prosecutor might have been entitled to call an expert witness to testify about the connection, or lack of connection, between a pedophile’s preferences in adult partners and his pedophilic tendencies. He was not entitled to introduce inflammatory evidence and invite the jury to draw from it an inappropriate inference merely to avert a different, equally inappropriate (but exculpatory) inference.
In ruling the calls admissible, the trial court appeared to adopt an even broader theory. At first the court seemed to echo the prosecution theory, stating that the jailhouse calls tended to corroborate the boys’ testimony because the boys too “don’t have large penises and don’t have body hair since they’re very young.” Defense counsel objected under section 352, saying, “you can be a heterosexual woman and be interested in whether a man has a lot of body hair or not. It doesn’t mean you’re interested in a child. You can be interested in the size of a man’s penis.” The court countered, “We’re not talking about a heterosexual woman having this conversation.” Later defense counsel said that she had talked to experts who indicated that bisexual proclivities with respect to adult partners had no tendency to show that an individual was more likely to be disposed to pedophilia. Counsel also argued that the evidence lacked probative value in the absence of expert testimony. Rejecting all of these points, the court ultimately said, “[T]he fact that the defendant was discussing having sex of some sort with a male under the circumstances of this case is relevant information, it’s corroborative information, and it’s more probative than prejudicial.”
We reject both the court’s broad theory and the prosecution’s narrower one. In the absence of expert testimony, defendant’s interest in sex with adult men—regardless of their type—could not support a rational inference that defendant committed the acts described by Rusty and Alfie. So far as this record shows, a general attraction to adult males is no more indicative of a pedophilic tendencies than is a general attraction to adult females. The court’s apparent view to the contrary was rejected in this state a half-century ago. (People v. Giani (1956) 145 Cal.App.2d 539, 541 [prejudicial error to ask defendant charged with oral copulation of a boy whether he was a homosexual].) If that precedent is to be overturned, it must be on the basis of scientific evidence, not lay supposition. Such professional literature as we have located suggests that pedophiles are significantly less likely to differentiate between genders in selecting their victims than are non-pedophile adults in selecting partners. (Freund, et al., Erotic Gender Differentiation in Pedophilia (1991) 20 Archives of Sexual Behavior 555, 563-564.) Indeed the prosecution here introduced evidence of supposedly pedophilic behavior by defendant toward female children. If he were on trial for that conduct, would the court have admitted evidence that he liked sex with adult females? We suspect not.
Nor do we believe a permissible inference of guilt can be drawn from defendant’s posited preference for adult men with relatively hairless bodies and modestly sized, circumcised penises. Based on this evidence, the prosecutor argued to the jury that defendant was guilty in part because Rusty, like the male participant in the ménage à trois, lacked body hair and was circumcised. He said that defendant had, in the jail calls, “admitt[ed] knowledge of [a] sex act and an interest in that sex act, [that was] the same sex act described by Rusty . . . .”
We recognize a certain superficial appeal in this notion. Two of the features preferred by defendant—hairlessness and small genitals—may be viewed as characteristics that many males lose with puberty. It might thus be supposed that a man who is attracted to those characteristics would also be attracted to pre-pubescent boys. There are two things wrong with this supposition. First, a man, no matter how boyish looking, is not a boy. At least in the absence of expert testimony, the mere fact that a man (or woman) is attracted to boyish-looking men cannot be equated with an attraction to children, let alone a willingness to violate the criminal prohibition against sex with children. Boys and men simply are not the same thing. The prosecution theory is like saying that a man who likes 12-cylinder Bentleys is more likely than another man to steal a 12-cylinder Ferrari. A Bentley is not a Ferrari, and a Ferrari is not a Bentley, no matter how many cylinders they may have. A man’s fondness for one of them cannot, without more, betoken a fondness for the other, let alone a willingness to steal it.
Second, the prosecution theory rests on the wholly speculative premise that it is the boyishness of the preferred men’s appearance that appealed to defendant, i.e., that he was attracted to such men because they resembled, in these respects, children. That assumption illustrates the danger of inviting the jury to rely on folk psychology, for under critical examination such a preference might be seen to rest on any number of factors wholly unrelated to any predisposition to pedophilia. A hairless man may indeed be thought to resemble, in that respect, a boy. But he may also be thought to resemble a woman. Perhaps a bisexual male would find him more attractive than other men because he appears more feminine and less challenging to the beholder’s sense of his own masculinity. An adult, male or female, might prefer a certain body type for reasons of physiognomic fit, or because they mirror his or her own traits and thus appeal to a narcissistic streak. Indeed a given trait may not positively attract the beholder at all, but be preferred by him out of aversion to its opposite. Thus one might prefer partners with minimal body hair not because hairlessness itself has positive sexual associations but because hirsuteness has negative associations. A man who feels “underendowed” might prefer similarly configured males because the alternative would make him feel insecure or inadequate. Other explanations for a given preference may be sought in deeper, perhaps irretrievable origins such as association with some long-forgotten object of early sexual attachment or experience.
To misquote an old radio program, who knows what lusts lie in the hearts of men?—let alone why. It may be possible, even easy, to identify the objects of a man’s lusts, but it is perilous to indulge easy suppositions about whence they arise or what, if anything, they tell us about their host. Perhaps expert witnesses could be found who would profess to know whence a particular preference arises and what it implies about other, unacknowledged impulses. But prosecutors and judges do not know these things, and neither do lay jurors. A citizen accused of incestuous child molestation, no less than any other criminal defendant, is entitled to be tried based upon solid evidence and rational inferences, not facile conjecture and tendentious surmise.
As for circumcision, defendant himself explained his preference for that trait, and it had nothing to do with pedophilia. He said in essence that he liked to perform a particular form of oral sex—nibbling—that was only tolerable to his partner if the latter’s penis were circumcised. This statement might have become relevant if either Rusty or Alfie had reported that defendant nibbled on his penis, but neither did. They consistently stated only that he “sucked” on them. This refutes respondent’s assertion that defendant’s statements to Angie involved “the identical sex act complained of by the victims . . . .” The prosecutor made the same assertion below, going so far as to write that “the evidence would not have been relevant if the sex acts were not identical.” But that is exactly the case. The acts described by the boys and those discussed by defendant with Angie were “identical” only at a level of generality where any two contacts between a mouth an a penis are “identical.” At that level of generality, the word “identical” is all but meaningless. Interest in engaging in common forms of sexual activity with adults simply is not evidence that one engages or wishes to engage in those same activities with children.
In sum, evidence of defendant’s preferred type in consensual adult partners was, in the absence of expert testimony, wholly lacking in probative value. Evidence of defendant’s more general interest in male partners was not admissible to establish a predisposition to commit offenses of the type charged, but was admissible solely to contradict and establish the falsity of his denials to the Maine detectives of any such interest. Because that objective could presumably be established merely by questioning Angie, the actual recording and transcript of the jail calls possessed miniscule probative value.
Even if we thought otherwise there could be no justification for admitting the second conversation, in which Angie “reported back” on her sexual encounter with the other couple. Defendant’s only contribution to the conversation was to ask her to “tell me now” about the encounter, to request “details” about her role as “upper body person,” and to ask specifically, “[D]id you ever have your hand on, on him?” This evidence established nothing of relevance to this case, and its admission over defendant’s repeated and strenuous objections is inexplicable.
The defense also objected on grounds of undue prejudice to the jury’s learning that the phone calls were made from jail. The court found that fact “very relevant,” and professed not to “see that as being prejudicial . . . .”
As against its minimal probative value the trial court should have weighed the great potential of this evidence to unfairly prejudice the defense. It held defendant and one of his main witnesses up to contempt and condemnation on grounds wholly unrelated to this matter, i.e., their disregard for deeply embedded taboos, including but not limited to those against simultaneous multiple sex partners, homosexual conduct, and promiscuity in general. Worse, it invited the jury to indulge the grossly pernicious supposition that defendant’s willingness to deviate from conventional sexual norms with consenting adults betokened a willingness to violate the far more grave sexual norms against incest and pedophilia. In his address to the jury, the prosecutor protested that he had no desire to conduct a “referendum on how the defendant conducts his private life with consenting adults.” The remark might be considered sincere had the prosecutor gone on to unequivocally tell the jurors that they could not conduct such a “referendum” and could not infer defendant’s guilt from lawful sexual proclivities, no matter how offensive or disturbing they might find them. Instead he offered the perhaps unintentionally revealing embellishment, “I hope none of you think that by presenting that evidence, I am in any way commenting on what two [sic] consenting adults do in the privacy of their own home.” This may be an example of apophasis, the rhetorical device of asserting something by a feigned refusal to do so. (See American Heritage College Dict. (3d ed. 1997) p. 64 [“Allusion to something by denying that it will be mentioned.”].) Even if the prosecutor spoke in utter good faith, his impulse to issue such a disclaimer highlights the intrinsically prejudicial tendency of this evidence.
As defendant correctly points out, the evidence also created a grave risk that jurors would hold Angie in moral opprobrium, and improperly refuse to credit her testimony, because of her unconventional sexual proclivities. She was a crucial defense witness not only on defendant’s character but also in seeking to discredit the highly debatable prosecution theory that defendant had fled to Maine to impede the investigation of Rusty and Alfie’s accusations. To allow the prosecution to gratuitously paint her as a sexual deviant was an extravagant abuse of discretion.
In sum, evidence of defendant’s general sexual interest in adult males and of his ability to masturbate to the point of ejaculation was admissible to show that he had lied to detectives on those subjects, and that his having done so reflected awareness of his guilt of the charged offenses. In all other respects the evidence of his telephone conversations with Angie was either entirely irrelevant, or so grossly lacking in probative value, and so fraught with potential for prejudice and confusion, that its admission was a textbook abuse of discretion. Because of the limited purpose and scope of the admissible evidence, the prosecution should have been required first to inquire of Angie whether defendant had admitted these matters to her. If she denied it, or the defense otherwise put the falsity of the earlier statements in issue, then the court might have been justified in admitting such additional evidence as was reasonably necessary to establish the relevant facts. As it is, the wholesale admission of this highly prejudicial material was clear error.
II. Boys’ Extrajudicial Statements
Defendant contends that the trial court erred by admitting Rusty and Alfie’s videotaped statements to Detective Asato. His chief argument is that the court did not conduct the hearing and make the findings required by Evidence Code section 1360 (§ 1360). Secondarily, he asserts that the evidence did not support the required findings. The first point is plainly correct; we do not reach the second.
Section 1360 provides in pertinent part, “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
In the prosecutor’s written motion in limine, he expressed the intention to introduce the boys’ videotaped statements into evidence under section 1360. When the issue was first discussed, the court professed familiarity with section 1360 but then stated, contradicting the plain language of the statute, “[T]he law clearly provides that the videotaped interview of a child can be shown after they have testified in trial.” The court went on to say, more accurately, “[I]f you want me to review the tapes ahead of time prior to ruling on this, I’ll be glad to do that because I do need to find that the time, content, and circumstances of the statement provides sufficient indicia of reliability, so I can’t really do that without having reviewed them . . . .” The court noted that it was the responsibility of the prosecutor, as proponent of the evidence, to make the recordings available for its review.
It does not appear that the court in fact watched the interview tapes, or otherwise conducted any inquiry into their admissibility under section 1360, before they were played to the jury. Two days after the above colloquy, the court stated that it had received various recordings from the prosecutor “but realized I simply was not going to have enough time to view all the tapes and listen to them, so I read all the transcripts; I have reviewed each of those transcripts, and I keep in mind the fact the transcript is always just someone’s opinion of what the tape actually said.” When the subject next came up, the prosecutor asked about the status of “my 1360 motion,” stating, “I know you had taken under submission to review the tape, but I don’t recall if you ruled yet.” The court replied, “If the children testify, my understanding of the law is you can use the tapes.” Later, when defense counsel sought to make sure the record reflected her objection under section 1360, the court interrupted her and stated, “I already ruled that it could come in under 1360.”
The court did not expressly make the findings required by section 1360 until long after the fact when, in denying defendant’s motion for new trial, it said, “Next, you argue that Rusty and Alfie’s prior statements to Detective Asato were improperly admitted under Evidence Code § 360 [sic]. Again, you failed to point out why the Court’s ruling on this issue was deficient; and more importantly, how it prejudiced your case. The statement did comply with Evidence Code § 360 [sic] and In Re Cindy L., a ’97 case, 17 Cal.4th. at 15. [¶] Although I don’t recall exactly what I said in ruling the interviews could be played, I believe I established a proper record. It did appear to me that the time, content, and circumstances of the statements provided sufficient indicia of reliability. I did not find that the officers led the witnesses. I thought that their statements were mainly consistent with their testimony at pretrial—at prelim and trial, and while they have mental issues, there was nothing about their mental issues that appeared to make them unable to tell the truth and to tell what had happened to them, and the boys said several times how much they cared for their father, missed him, were sad that he wasn’t home anymore. I don’t find that there was any motive to lie.”
There is little room for doubt that the court failed to comply with the plain terms of section 1360. It never conducted a hearing to evaluate the sufficiency of the indicia of reliability affecting the boys’ videotaped statements. Respondent refers to the first colloquy cited above as a “hearing,” but it was not the hearing contemplated by the statute. The court expressly reserved a determination on the reliability of the statements until such time as it could review the videotapes. Even if such a review could satisfy the requirement of a “hearing,” there is no evidence that the court in fact reviewed the videotapes prior to their admission, and its most pertinent comments strongly suggest the contrary. It appeared to rely on the proposition, which it twice stated, that “[i]f the children testify, . . . you can use the tapes.” This view is clearly mistaken; the statute contemplates both the required hearing and findings, and that the children either testify or are unavailable to do so. These requirements are plainly stated in the conjunctive. (§ 1360, subd. (a) [statements admissible “if all of the following apply”].) The presence of one required condition does not excuse the absence of others.
Citing In re Cindy L. (1997) 17 Cal.4th 15, 35, respondent asserts that the admission of hearsay evidence will not be overturned on appeal absent an abuse of discretion. But this presupposes that (1) the trial court was vested with discretion to admit the evidence and (2) the court exercised that discretion. Here section 1360 invested the court with discretion to determine whether the proffered statements satisfied the statutory conditions for admission. The trial court, however, never exercised that discretion, relying instead upon an erroneous categorical rule of admissibility. Such a ruling is entitled to no appellate deference; it is clearly erroneous on its face.
Respondent does not contend that defense counsel forfeited the issue by failing to adequately object to the court’s failure to conduct the required hearing and make the required findings. Such a failure, if found, would seem to lack any conceivable tactical motive, and thus to constitute ineffective assistance of counsel. Respondent’s only defense of the court’s ruling is that the court performed its duty under the statute—a proposition we reject. Beyond that respondent contends that any error was harmless “in light of the overwhelming evidence of guilt provided in the credible testimony of the two victims, appellant’s extensive extra-judicial statements reflecting his consciousness of guilt, and the propensity evidence showing his inclination to engage in lewd touching with children.” We will reserve consideration of this assertion until we have completed our canvass of defendant’s claims of error.
Defendant also appears to reassert his suggestion below that admission of the videotaped statements violated his constitutional right to confront the witnesses against him. The argument relies on principles that have been superseded by the landmark decision in Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9, which held among other things that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Here Rusty and Alfie appeared for cross-examination; therefore no issue could arise under the confrontation clause.
III. Swimming Pool Incidents
A. First Incident
Sandra DiLeo testified over objection that she lived in the Foothills apartment complex while defendant and his family lived there. In the early summer of 1999 she was sitting at the complex’s swimming pool with a friend and fellow resident. Defendant was in the pool, as were several children. Defendant’s sons were on lounge chairs at one end of the pool. Defendant was playing a game with Chelsea, a girl or five or six. He was chasing her like “Jaws,” and she was laughing and splashing. He was telling her to get out of the pool and jump back in. He would catch her, she would roll around in his arms like a fish, and then get away.
Ms. DiLeo testified, “[I]t caught my attention because I couldn't believe what I was seeing. I thought I was seeing things. I mean, he would catch her between her crotch and her upper body.” By this she meant that “[h]e would catch her between her legs, right where her vagina was.” Then he would chase her like jaws for a while and guide her back out of the pool where she would jump back in and he would catch her again in the same way. His hand would always be on her vagina when he caught her. He would not move his hand, as Ms. DiLeo felt was normal if you catch a child. “He left it there for the entire two or three minutes that he would have her under the water playing the game.” It seemed deliberate to her. However, she could not see his hand when it was under the water. She inferred that it stayed there because his arm never moved and “when he would lift it back up to come out, his hand would still be there.” His other hand was positioned toward her upper body, more balancing than holding her.
Ms. DiLeo testified that this happened 10 or 12 times, at least. After the first couple of times she turned to her friend and said that it wasn’t right. She asked defendant to approach and speak to her. He swam over and she asked him “could he please leave that little girl alone.” He laughed and replied that he could play with the children. She told him that one of his boys was sleeping and the other was shivering, “freezing,” and that she was going to take care of Chelsea and he was to leave her alone. He laughed and returned to doing exactly what he had been doing, except that now every time he caught Chelsea “he would look at me with a look, a glare . . . .” After three or four more repetitions he got out of the pool and left with his boys.
Ms. DiLeo did not report the incident to Chelsea’s mother. But the next time she saw her, she “went up to her and I said, ‘I don’t think you should let Chelsea be left around Mr. Whicker unattended anymore.’ ” At some later point Ms. DiLeo saw a “flyer” signed by defendant. The flyer, which the court admitted, was apparently distributed to numerous residents of the complex. It gives defendant’s version of the events at the pool, stating that he has been forced to defend himself because of “a single person’s opinion that I may have some sort of interest in mentally or physically hurting young children,” which “ill rumor” rested on that person’s “exaggerated” version of the incident.
Defendant’s hearsay objection was overruled, the court declaring, “These are admissions. . . . A flyer is an admission.”
Called by the defense late in the trial, Chelsea, the supposed victim in the foregoing incident, testified that she was 11 years old at the time of trial. She remembered playing in the pool with Rick, who would pick her up and throw her in the water. She did not remember where he put his hands. At that time she was not afraid of him. She remembers a time when an adult woman was watching over her and got upset with Mr. Whicker. The woman said something to Chelsea’s mother, who then told Chelsea she wasn’t allowed to go into the Whickers’ house any more. She stopped playing games with him in the swimming pool after that. The trial court refused to permit the defense to introduce earlier statements by Chelsea in which she had said that she remembered defendant touching her between the legs but believed it to have been an accident.
B. Second Incident
Sandra DiLeo’s adult son, Craig DiLeo, testified that he also lived in the Foothills complex in his own apartment right above the pool. On one occasion when he was smoking outside his apartment watching people in the pool, an “altercation” took place between himself and defendant. Defendant was in the pool playing with two girls, aged about eight or nine. Defendant “was holding them like you would hold a cake,” with his hands underneath them. He had one hand on the chest and the other on the vagina. He would rotate and then, with a hand on the buttocks between the legs, “push them off.” It didn’t look or feel right. Defendant did this for a couple minutes, enough to do it two or three times with each girl. He then went to some steps at the end of the pool where his two boys were sitting. He grabbed the two girls and put one on each leg, facing away from him. He then started bouncing and splashing, with water going everywhere. This went on for 10 or 20 seconds until Craig intervened. “I called down to him, ‘Buddy, hey,’ and he ignored me. So I said—I raised my voice a little bit and I said, ‘Hey, you know, you. Could I have your attention?’ [¶] And he turned around. [¶] And I told him I think he should be playing with his own kids and not with the other kids. He should maybe leave them alone. [¶] And he told me to mind my own business. He said, ‘You can’t tell me what to do.’ [¶] So I told him that if I—I told him if I have to come down there—if he doesn't stop, I am going to come down there and talk to him face to face. [¶] And then he gave me like a look like okay, got up, grabbed his two kids, and left.” DiLeo spoke in a threatening tone; he was upset.
DiLeo was permitted to testify about an earlier “altercation” in which he accused defendant of neglecting his sons. DiLeo testified that while backing his car out of its space he nearly ran over one of defendant’s sons, who was unattended. He took the boy to defendant’s apartment, where he confronted defendant, saying, “ ‘Look, I almost hit your kid with my car. And I see you around. You are always keeping your kids when you are doing laundry or getting groceries, but you aren’t watching them. If I see your kid alone like this again, if I almost hit your kid again, I am going to kick ass . . . .’ ”
C. Proceedings
Defendant moved to exclude evidence of the pool incidents as too remote, tangential, and uncertain for admission under Evidence Code section 1008. The prosecutor argued that the incidents were relevant “primarily, because [they took] place during the same time period that the defendant is alleged to have been abusing his two boys, and I think that is really where the evidence becomes most relevant. I believe it’s also relevant because it’s involving children of approximately the same age as Rusty and Alfie.” He acknowledged that the conduct bore limited resemblance to that at issue here, but found it significant that defendant was “touching these girls in an inappropriate manner” and that he just “laugh[ed] . . . off” the admonishment to desist. Further, he argued, “the fact that he’s doing it in public is strong evidence that his propensity is to touch children in a sexual manner, and that’s really what 1108 is getting to; the propensity of the defendant to engage in this behavior.”
It strikes us as fanciful, if not absurd, to suggest that the public character of a defendant’s touching of children somehow strengthens the inference that it was done with lewd intent. On the contrary, common sense suggests that any sane pedophile would refrain from indulging such a predilection in the presence of adult witnesses. Of course, if one were already shown to be a pedophile, then the apparent inability to control that tendency even in public would say something about its intensity. But here the question was not whether defendant could control his impulses to molest children; it was whether he had such impulses. Like many of the prosecutor’s arguments, this one presupposed the very point in issue. That is the core definition of “prejudice.”
D. Discussion
Defendant essentially raised two objections—first, that the pool incidents as described by Sandra and Craig DiLeo were not admissible evidence of pedophilic predisposition under Evidence Code section 1108 (§ 1108), and second, that even if they had some probative value for that purpose the evidence was so equivocal and so far removed from the charges at hand that it should be excluded under section 352. Inextricably linked to these objections was the defense’s unsuccessful attempt to meet the evidence by showing that Chelsea, the only identified victim of either supposed crime, did not experience the touching as lewd but as inadvertent and innocent.
Section 1108 creates an exception to the general prohibition against admitting evidence of character to prove conduct. (See Evid. Code, § 1101, subd. (a).) The statute provides that in a prosecution for sex crimes, evidence of other sex crimes may be admitted to show a propensity to commit such offenses, provided the evidence is not inadmissible under section 352. (§ 1108, subd. (a).) The trial court’s application of this rule is reviewed under an abuse of discretion standard, and will be reversed only where it “ ‘falls outside the bounds of reason.’ ” (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) The determination of admissibility is to be informed by factors including the “ ‘nature, relevance, and possible remoteness’ ” of the uncharged offense, “ ‘the degree of certainty of its commission,’ ” “ ‘the likelihood of confusing, misleading, or distracting the jurors from their main inquiry’ ” by injecting doubtful or debatable accusations, the uncharged conduct’s “ ‘similarity to the charged offense,’ ” “ ‘its likely prejudicial impact on the jurors,’ ” “ ‘the burden on the defendant in defending against the uncharged offense,” and “the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]’ ” (Ibid.; People v. Falsetta (2000) 21 Cal.4th 903, 917 (Falsetta).) To consider such evidence, the jury need only find the asserted propensity by a preponderance of the evidence, not beyond a reasonable doubt. (People v. Regalado (2000) 78 Cal.App.4th 1056, 1061.)
Here the Falsetta factors militated heavily against admission of the evidence. First and foremost, the “degree of certainty” of the commission of the uncharged offenses was well toward the lower end of the scale. As reflected in the jury instructions, the prosecution theory appears to have been that the swimming pool incidents constituted lewd and lascivious acts in violation of Penal Code section 288, subdivision (a). The jury was properly told that this offense consists of touching a child’s body “with the specific intent to arouse, appeal to, or gratify the sexual desires of either party.” (See Pen. Code, § 288, subd. (a).) There was only a weak basis for an inference that defendant acted with the requisite specific intent. The only clearly established facts were that defendant was playing with some children in the swimming pool and in the course of doing so touched them, or one of them, in the genital area of the body. Beyond that the evidence quickly subsided into equivocation, if not incoherence. Ms. DiLeo testified that she saw 10 or 12 repetitions of defendant catching Chelsea and, on each such occasion, holding his hand on her crotch continuously for two or three minutes. She was permitted to say that this conduct “seemed deliberate” to her, although she acknowledged that she could not see defendant’s hand while it was under water, which was most of the time. She conceded that his other hand, on Chelsea’s upper body, seemed to be balancing rather than holding her. Moreover she testified that she watched at least three repetitions of this conduct—which by her account would have consumed some five to 10 minutes—before she intervened. She did not report the incident to police or even to the supposed victim’s mother, except to tell the latter that she would do well to keep Chelsea away from defendant. This innuendo then spread, apparently, throughout the apartment complex, doubtless placing the witness in a position where what might have originally been ambiguous and debatable suspicions would naturally harden into accusations.
The second incident was, if anything, even less probative. Apart from any animosity Craig DiLeo may have felt toward defendant as a result of their prior “altercation” and his mother’s run-in with defendant, the incident he described was simply too nebulous to sustain a confident belief that he had witnessed a criminal offense. He described defendant holding two girls “like you would hold a cake” preparatory to rotating and “push[ing] them off” through the water by a hand on the buttocks. To be sure, he described defendant as having one hand on the chest and one on “the vagina part of the bathing suit,” but when he demonstrated this movement with a doll, his hand was touching—in the words of the prosecutor—“the waist area of the doll . . . .” The nearest thing to a plainly lewd touching was the indication that when defendant “pushed them off,” he placed a hand between their legs. But when asked why this captured his attention he first said “there was a lot of splashing” and then was permitted to say, “it didn’t feel right. It didn’t look right.” The girls did not seem upset and neither, apparently, did the 10 or so other people around the pool. This testimony was followed by the witness’s account of defendant bouncing the two girls on his legs as he sat on steps at the end of the pool.
It is certainly possible that a man engaging in the conduct described by Sandra and Craig DiLeo was acting out of prurient motives and thus committing a crime. But their testimony hardly furnished a sound basis for a jury to so find, even by the relaxed standard of a preponderance of the evidence. It may be a rarely expressed fact in these sexually obsessed times, but for centuries, if not millennia, it has been customary for adults to bounce small children upon their knees, and touch their bodies in aquatic or other forms of play, without being accused of pederasty. Perhaps this has permitted some pederasts to fly under the radar of social opprobrium. It does not follow that every suspicious touching can be rationally found to constitute a crime.
The prosecution evidence was rendered even more lopsidedly damaging by the trial court’s exclusion of prior statements by the one identified “victim,” Chelsea, that she believed defendant’s touching in the area of her vagina was accidental. The prosecution acknowledged in its pretrial filings that when questioned on an earlier occasion, “Chelsea remembered playing in the pool with the defendant and admitted that his hand touched her vagina,” but “thought the touching was accidental.” The defense sought to introduce evidence of these earlier statements, specifically Chelsea’s description of the touching as “an accident.” The prosecution argued that this was an opinion and as such “irrelevant” because a witness would not ordinarily be allowed to testify about another’s state of mind, and also that Chelsea was an unreliable witness, having been in the second grade at the time. The court excluded the evidence as improper opinion, referring to the “Mironk” decision, probably meaning People v. Miron (1989) 210 Cal.App.3d 580, 583.
We reject the contention that this evidence constituted improper lay opinion. Evidence Code section 800 provides that a lay witness can give an opinion provided it is “(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” The decision apparently relied upon by the trial court cites an earlier opinion for the proposition that “ ‘[a] lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording. [Citation.]’ ” (People v. Miron, supra, 210 Cal.App.3d at p. 583, quoting People v. Sergill (1982) 138 Cal.App.3d 34, 40.) There was no basis here for the court to conclude that Chelsea could “adequately describe [her] observations without using opinion wording.” When she actually testified she could not remember where defendant had put his hands, let alone the kind of factual details that would explain her impression that the touching was inadvertent. Given her lack of memory, she could not describe her original “observations” at all. Nor would they have been adequately described by allowing the jury to hear her recollection that defendant touched her between the legs, but not her additional comment that she thought it was accidental. That comment was literally the only way for the jury to learn that so far as Chelsea knew, there was nothing lewd about the way defendant was touching her.
The prosecutor also challenged the statement on the ground that Chelsea’s interpretation of events was rendered irrelevant by her youth, and the court agreed, saying “Whether a five year-old girl understands what the motive behind a touch is or is not is not probative, really, of anything. I agree with [the prosecutor] that her opinion that it was accidental is simply not admissible and it’s not particularly relevant.” At best this reasoning rests on some strikingly fine distinctions, given that the entire prosecution depended on the reports of two children who were as young as or younger than Chelsea when the events reported by them took place.
Yet another prejudicial twist is added by the fact that both of the adult witnesses to the supposed lewd touching were permitted to place their opinions about defendant’s mental state before the jury. Sandra DiLeo testified that defendant’s conduct “seemed deliberate” to her and, over a hearsay objection deflected by specious argument, that she told her companion “[T]hat’s not appropriate. That’s not right.” Craig DiLeo opined that what he saw defendant doing “didn’t feel right” and “didn’t look right.” These statements show not only the lack of symmetry in the scope afforded the prosecution and the defense, but also illustrate the difficulty with which objective evidence of another’s subjective intent can be conveyed. Evidence Code section 800 reflects a recognition that sometimes a lay opinion is the only way to adequately a percipient witness’s knowledge about an event. This was such a case. The trial court erred by ruling the statement inadmissible under Evidence Code section 800.
To be sure, defense counsel neglected to object to these statements on grounds of improper opinion. The record contains a number of examples of conspicuously absent or deficiently stated defense objections. No claim of ineffective assistance is made on appeal, but defendant is represented on appeal by the same attorney who represented him at trial. In any event, a criminal trial is not a sporting event but a search for truth. The trial court is under some obligation to ensure the basic fairness of the proceeding and to exercise its discretion over evidentiary issues in such a way as to bring about a tolerable degree of balance and even-handedness.
IV. E-mail Message
A. Background
During the examination of defendant’s girlfriend Angie, the prosecutor asked her whether, around August or September 2002, she had been “interested in finding out if [she was] dating a child molester.” She replied, “No. By that time, I had come to the conclusion that the allegations against him were false.” The prosecutor then asked whether she “wrote an e-mail to [Rebecca] on December the 1st of 2002,” to which Angie answered, “Yes.” He then asked if she had “state[d] to her, quote, ‘You don’t know me. And I feel really shitty going behind Rick’s back like this, but I don’t know what else to do.’ Do you remember writing that e-mail?” She replied, “No, I don’t.” The prosecutor then showed her a document and asked her if she remembered writing it. She replied, “I can’t honestly say I remember writing it. I won’t say I didn’t because I don’t remember for sure if I did or not.” She acknowledged that there were “a couple of e-mails back and forth between the two of us,” but could not recall who initiated it. She acknowledged that the document in evidence “does look like my style of writing . . . .” She “assume[ed],” based on the contents of the document, that she “wanted [Rebecca’s] take on the situation.” But, she testified, “I honestly don’t remember writing the e-mail, so I can’t tell you what my thoughts were at that time.” When the prosecutor persisted in reading excerpts from the document and questioning her about them, she said, “I don't remember writing the e-mail at all.”
Immediately after Angie testified, the prosecutor recalled Rebecca to the stand and asked her whether she remembered “receiving an e-mail from a person identifying herself as the defendant’s girlfriend?” Counsel objected to the characterization “person identifying herself,” observing, “It’s just a piece of paper.” The trial court overruled the objection. Rebecca then testified that the document was an “e-mail communication” that was “sent to me in December 2002 . . . .” She recognized the name of the sender as that of defendant’s girlfriend. She responded to the e-mail.
Later the prosecutor moved the document into evidence, except for those portions indicating that it had been forwarded to Detective Phan. He contended that sufficient foundation was laid by Rebecca, “even though Angie . . . claimed memory lapses . . . .” Defense counsel objected on grounds of lack of foundation and the best evidence rule. Stating that sufficient foundation had been laid, the court admitted the document. Defendant assigns this ruling as error, contending that the document was not properly authenticated and that it constituted inadmissible secondary evidence.
B. Authentication
The authentication of documents is governed by Evidence Code sections 1400 through 1454. The basic requirement is that a document must be authenticated before it, or evidence of its contents, may be received in evidence. (Evid. Code, § 1401.) A document is authenticated by “(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) Although the Code specifies a number of methods by which authentication may be achieved (Evid. Code, §§ 1411-1421), it explicitly provides that these methods are not exclusive (id., § 1410). Some of the specified methods contemplate direct evidence, e.g., testimony by a witness that he or she signed the document (id., § 1411) or saw it signed (id., § 1413). Others rely on circumstantial evidence, e.g., handwriting (id., §§ 1415-1419), evidence that the document was received in reply to a communication sent to its putative author (id., § 1420), or evidence that the document “refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing” (id., § 1421).
The e-mail message here was not handwritten, but Angie, the asserted author, acknowledged that it appeared to be written in her “style.” Moreover the message appeared to recite facts that few people other than her might be supposed to know, most obviously, “I know Ric has mentioned me to you.” (See Chaplin v. Sullivan (1945) 67 Cal.App.2d 728, 734, citing Fayette Liquor Co. v. Jones (1914) 83 S.E. 726 [75 W.Va. 119] [“letters received in a continuous course . . . relating to matters in suit and so consistent with truthful relation thereto as to make it improbable that anyone could have forged them, may be admitted so that the jury may, from their contents, determine their genuineness”].) To be sure, the foundation would have been firmer if the prosecutor had confirmed that this was a fact known to Angie, but he showed her the document and she identified no inaccuracies in it. Indeed she did not disclaim its authorship, but only testified that she did not remember it. She did remember exchanging emails with Rebecca, one of them bearing the date of the message in evidence. Taken in combination, this evidence was sufficient to “sustain a finding that it [was] the writing that the proponent of the evidence claim[ed] it [was],” i.e., an email authored by Angie and sent to Rebecca. (Evid. Code, § 1401.)
C. Secondary Evidence
Defendant also challenges the email message as “secondary evidence,” i.e., evidence of the contents of a writing other than the writing itself. (See Evid. Code, §§ 1520, 1521.) His argument implicitly posits that the writing itself, for these purposes, is the electronic message originally received by Rebecca and stored on her computer, and that the document in evidence was “secondary” because it was a printout not of that message but of a message forwarding it to Detective Phan. (See Evid. Code, §§ 1520, 255 [defining “original”]; id., §§ 1522, subd. (a)(1), 260 [admissibility of “duplicate”]; Best Evidence Rule (Nov. 1996) 26 Cal. Law Rev. Com. Rep. (1996) pp. 386-387, fn. 50 [noting problems with computerized evidence under former Best Evidence Rule].) From the assumption that the proffered printout was secondary evidence, defendant argues that it was inadmissible because, under Evidence Code section 1521, subdivision (a)(1), “[a] genuine dispute exists concerning material terms of the writing and justice requires [its] exclusion.”
We see no “dispute” concerning the terms of the writing. Angie acknowledged that she sent one or more e-mail messages to Rebecca. She did not “dispute” that the document in evidence contained one of those messages. She only testified that she did not remember whether she sent that particular message. Had she flatly denied writing the message, a “dispute” might be said to have arisen. But she did not, and it did not. We conclude that the trial court did not err in overruling defendant’s objections to the e-mail on grounds of authentication and the secondary evidence rule.
V. Alternative Sources of Boys’ Sexual Knowledge and Experience
A. “Sexualization” of Rusty
Defendant contends that the trial court erroneously excluded evidence of Rusty’s “prior sexualization.” Defendant says that the trial court abused its discretion by excluding such evidence on the ground that its potential for confusing the jury outweighed its probative value. (See Evid. Code, § 352.) It appears that defendant’s challenge goes to (1) evidence of the “sexualized behavior” of Rusty’s former playmate Christian and his two brothers Justin and Douglas; (2) the “existence of pornography” in that family’s home “that was viewed by Justin” and “possibly Rusty”; (3) Christian’s molestation by another neighbor boy, Raynard; (4) sexual contact between Christian and Justin; and (5) masturbation by Justin.
We will address this complex topic only briefly because it does not appear from this record that—apart from Rusty’s conduct with Christian, of which the jury was fully apprised—any of the “sexualization” was shown to have involved Rusty. We have no quarrel with the basic proposition that defendant was entitled to introduce evidence tending to show other means by which Rusty could have acquired knowledge of facts attributed by the prosecution to his molestation by defendant. The chief and most obvious example of such knowledge was Rusty’s ability to accurately describe ejaculation, knowledge which suggested that he had seen a post-pubescent male achieve climax. Evidence of his exposure to such a sight by means other than molestation at the hands of defendant would of course tend to weaken the prosecution’s case. Thus the court would surely have abused its discretion had it excluded evidence that Rusty was molested by an older boy, or present when an older boy masturbated or otherwise achieved climax, or saw pictorial or cinematic depictions of ejaculation.
But defendant has identified no excluded evidence of this type. He showed that Justin had sexual contact with Christian before Rusty knew either of them; that Christian had sexual contact with Raynard, another neighbor boy in the complex of about Justin’s age; that Christian and Justin’s older brother Douglas possessed pornographic materials, which Justin saw; and that Justin masturbated during the time his family lived in the complex. At most this evidence raised a possibility that Christian might have been exposed to the spectacle of ejaculation. The evidence offered or adduced in 402 hearings tended to rebut any inference, if one could otherwise have arisen, that any of the boys, other than Christian, exposed Rusty to any sexual information of any kind. Justin flatly denied any sexual contact between himself and Rusty, testifying that he never spent much time with Rusty or played with him at all. Douglas acknowledged that Justin was exposed to pornographic films in Douglas’s room, but didn’t think Rusty was ever in that room; indeed, it was “kind of off limits” to Christian.
The jury could not rationally suppose that Rusty absorbed the other boys’ sexual knowledge by some kind of osmosis. There had to be some basis to infer that he was shown, or at least told, the relevant facts. The defense failed to establish any such basis. This contrasts sharply with the case cited by defendant, where the defendant offered to prove that the victim had told two health workers “that he had been molested by two older children, ages eleven and eight, when he was five years old.” (People v. Daggett (1990) 225 Cal.App.3d 751, 757.) In those circumstances it was error to fail to “order[] a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged . . . .” (Ibid.) Here, the trial court ordered a hearing and heard all the testimony the defense proposed to introduce. That evidence did not further the claim that Rusty had been “sexualized” by the neighbor boys. Accordingly, the court did not abuse its discretion by failing to allow the repetition of that evidence in the jury’s presence.
B. Raynard and Christian
Defendant argues briefly that the court erred by preventing him from “questioning [Rusty] as to whether he spent time with Reynard and whether they played sexual games.” On the cited page, defense counsel proposed not to question Rusty about sexual contact between him and Raynard, but rather to establish grounds for an inference that Raynard introduced Christian to sexual behavior. This evidence was relevant, counsel argued, to counter an expected prosecution argument that it was Rusty who sexualized Christian, rather than vice versa. Christian had testified in limine that, as between him and Raynard, it was the latter’s idea for them to pull their pants down. The trial court flatly declared, “Nothing about Raynard is coming in, period.” This ruling may indeed have been overly categorical, but we can hardly sustain defendant’s claim of error on this ground since he neither attacks the ruling in the context in which it was actually made, nor demonstrates that it extended to another context. We are directed to no attempt to show that Rusty had sexual contact with Raynard.
VI. Boys’ Behavioral Problems
Defendant contends that he should have been permitted to show “[Rusty’s] and [Alfie’s] behavioural [sic] problems,” i.e., that Rusty had “sexually acted out towards other children and adults, specifically propositioning them to suck his penis,” and that both boys “were having problems at school [and] day care due to emotional, inappropriate and aggressive behaviour [sic].” We find it unnecessary to reach this issue because we reverse on other grounds. We briefly observe, however, that as we read the present record, the trial court never ruled on the admissibility of this evidence. The court contemplated that defendant would seek to introduce such evidence, if at all, though expert testimony. Defendant did not disabuse the court of this view, which apparently originated in defense counsel’s own comments. Nor, as far we can discern, did he ever unequivocally offer any evidence of this type, through expert testimony or otherwise. Given the nebulous nature of the claim and the apparent absence of record support for it, no useful purpose would be served by attempting to address it.
VII. Pretext Call
A. Background
Defendant contends that the trial court erred by admitting the prosecution’s chosen excerpts of the “pretext call” between Rebecca and himself while excluding additional excerpts the defense sought to introduce. The prosecutor originally stated, “[A]bout the only portion of that telephone call that I would see using would be a description by the defendant to Rebekah that he was caught on at least one occasion by [Rusty] masturbating . . . .” Defense counsel argued that if this portion was to be admitted, then additional portions of the conversation should also be admitted under Evidence Code section 356 (section 356). Counsel noted that the statements offered by the prosecution flowed from earlier statements that defendant did not know how to prove his innocence and was unsure whether Rusty believed what he was saying, a question cast in greater doubt by Rusty’s supposedly having discovered defendant engaged in masturbation. Counsel said, “I would want all of Mr. Whicker’s thoughts as to how it is that Rusty could accuse him because it puts it all into context. It’s not just, oh, by the way, Rusty saw me masturbating one day.”
Section 356 provides, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
The prosecutor seemed to agree that “it can come in in the context of the defendant trying to explain to the wife this is why I think he is falsely accusing me or why he is accusing me of this. What I am just trying to keep out is his trying to tie in the Christian episode to this because to me that’s speculation and that—that does not make his explanation of being caught masturbating understandable. To me that’s just more self-serving, you know. This is just another reason why he is falsely accusing me. Christian and catching me masturbating. All I care about is the masturbating.” In other words, he objected to introducing defendant’s speculation that Rusty’s accusations might be traceable to his sexual activities with the neighbor boy Christian. He appeared not to object to defendant’s statements that Rusty’s accusations might have been fueled by the masturbation incident (or incidents).
Despite this partial concession by the prosecutor, the trial court ruled that the defense would be limited to eliciting testimony from Rebecca that defendant “was proclaiming his innocence throughout.” He could not introduce additional excerpts of the recording disclosing “how he was proclaiming his innocence.” Counsel argued that defendant’s bare denial of culpability did not by itself provide sufficient context: “[I]t’s not that he was just denying it. He was bringing up the masturbation as an attempt to try to figure out how it is that [Rusty] could have accused him in the first place, which includes a number of factors including the ‘and it doesn’t help that he also caught me masturbating.’ It’s a stream of other factors.” The court replied that the cited remarks were “very self-serving and . . . not necessary to understanding that he made an admission of masturbating in front of his son. That’s the issue. He can—as I said, you can elicit the fact that when he made this admission, he was, you know, proclaiming his innocence throughout. But it is not necessary to bring in everything that you suggested from page 7, line 26, through 13 and 15.”
B. Discussion
The trial court misapplied section 356 in at least two respects. That statute codifies the practical truth that the meaning, relevance, and probative tendency of a statement is often colored by its context. Thus when a litigant discloses a portion of a conversation or exchange, the other party is entitled to disclose additional portions to the extent that they bear on the meaning or probative tendency of the first portion. The trial court was simply mistaken when it said, “356 is clear that you only get to put in what is necessary to make the admitted portion understandable.” This is an allusion to the second of two independent clauses making up the statute. That clause concerns the introduction of a distinct (“other”) statement when “necessary to make . . . understood[]” a first, “detached” statement. The clause applicable here is the opening one, which states, “Where part of a[] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . .” (§ 356, italics added.) The test under this language is not whether the omitted portion is “necessary” to make the admitted portion “understood,” but only whether it is “relevant to the part . . . previously given in evidence.” (Assem. Com. on Judiciary, reprinted at 29B, Pt. I, West’s Ann. Evid. Code (1995 ed.) foll. § 356, p. 340.)
Second the court repeatedly declared that the excerpts proffered by the defense were properly excluded if they were “self-serving.” This notion has been consistently repudiated for at least half a century. (See People v. Williams (2006) 40 Cal.4th 287, 319, quoting People v. Arias (1996) 13 Cal.4th 92, 156 [“ ‘[I]f a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which “have some bearing upon, or connection with, the admission . . . in evidence.” ’ ”]; Davis v. Sturgis (1956) 142 Cal.App.2d 840, 844.)
Undoubtedly the trial court’s decision whether to admit evidence under section 356 is generally entrusted to its sound discretion. Where the court applies an erroneous legal standard, however, its ruling loses the protection of that deferential standard. There has been no lawful exercise of discretion to which to defer. The ruling can be sustained only if the court was bound to exclude the evidence under a correct standard.
Here it is far from evident that under the correct standard the omitted statements could be excluded, let alone that they were bound to be. The correct question is whether the omitted portions “ ‘ “had some bearing upon, or connection with,” ’ ” the portions introduced by the prosecutor. (People v. Williams, supra, 40 Cal.4th at p. 319.) To answer that question would require us to ascertain the purpose for which the prosecution introduced those portions. That question itself is shrouded in obscurity. No coherent explanation was ever provided for allowing the jury to hear defendant’s report to Rebecca that Rusty interrupted him in the act of masturbating. The prosecutor said it was relevant because (1) “it places the defendant in his bedroom where [Rusty] said the abuse took place”; (2) “[i]t has the defendant with his clothing off, which [Rusty] says happened”; (3) “[i]t has the defendant manipulating himself, which [Rusty] says happened”; and (4) “I believe what the defendant is doing is minimizing the conduct to a great degree, but I believe his description of that conduct would be admissible as an admission.”
The first three assertions verge on the absurd. Once the jury learned that defendant had a bedroom, it required no further evidence to establish that he might be found there. People can generally be found in their bedrooms on a daily basis. Nor would anyone be surprised to learn that a man who had chosen to masturbate might retire to his bedroom for that purpose. Nudity too is a common if not strictly necessary incident of masturbation. Self-manipulation is essential to it. Asserting that these facts are relevant is simply a way of avoiding the question of how defendant’s reported masturbation was itself relevant.
It appears that the claim of relevance must thus stand or fall with the fourth rationale, which appears to be that the jury could find in defendant’s account a kind of bowdlerized confession, like “I smoked but I didn’t inhale.” This theory apparently posits that the jury could accept the incriminating part of the account (that defendant was masturbating in Rusty’s presence) while rejecting the exculpatory part (Rusty surprised him, and he stopped immediately). How the jury might rationally engage in such parsing was never explained. Perhaps the concept was that defendant could be found to have spoken out of an imperfect confessional impulse, i.e., his conscience drove him to admit engaging in sexual conduct in Rusty’s presence, but self-interest led him to fabricate circumstances to avoid incriminating himself. We question the probative value of such a theory, but if it is accepted it puts defendant’s motives squarely in issue, because it depends on the premise that defendant was attempting in some way to clear his conscience. Such an impression might indeed be created by presenting the jury with defendant’s statement out of the blue that Rusty had caught him masturbating. The excluded excerpts suggest another motive, i.e., that he was attempting to understand, or to explain to Rebecca, why the boys might be accusing him of sexual misconduct. The context, in other words, would tend to rebut the inference of a confessional impulse by showing that the masturbation incident was part of a theory that also include Rusty’s sexual conduct with Christian and, presumably, Alfie’s sexual interactions with Rusty.
Conceivably the prosecution might have offered the evidence on the theory that the masturbation story was so implausible that it must have been fabricated by defendant in a conscious effort to explain any knowledge Rusty might have of defendant’s body. On that theory the story might tend to show consciousness of guilt. This seems a rather weak hypothesis since defendant could easily have offered, and did offer the Maine detectives, a more obvious and less damaging explanation for the boys’ having seen him naked, i.e., that they saw him getting out of the shower. Moreover the prosecution apparently never tried to establish that the masturbation account was fabricated. It does not appear, for instance, that Rusty was ever asked whether he had surprised his father masturbating. The prosecution’s actual reasons for offering this evidence therefore remain open to speculation.
Given the obscurity of the purpose for which the prosecution’s excerpts were admitted, and the possibility that their significance to the jury would depend on the motive with which they were thought to have been made, it appears that the trial court abused its discretion by excluding the portions of the conversation offered by the defense. The only coherent theory we have identified placed defendant’s motives for speaking squarely at issue. If the prosecution had another basis for admitting these statements, it behooved the prosecution to articulate it so that, among other things, appropriate limiting instructions might be sought. Having failed to do so, the prosecutor could hardly argue that the omitted portions had no bearing on the issue. Indeed, he did not do so. In his written motion in limine, he appeared to seek admission of the entire pretext call except for “any statements during the call regarding [Rusty’s] sexualized behavior with persons other than the defendant.” During trial he expressly disclaimed any objection to “the context of the defendant trying to explain to the wife this is why I think he is falsely accusing me or why he is accusing me of this,” but objected only to “his trying to tie in the Christian episode to this because to me that’s speculation and . . . [it] does not make his explanation of being caught masturbating understandable.” The basis for the trial court’s refusal to accept these concessions nowhere appears. We conclude that the court erred by admitting only those portions of the conversation favorable to the prosecution and excluding additional portions establishing the relevant context in which those statements were made.
VIII. Maine Police Interrogation
Defendant also contends that the court erred in excluding portions of his interrogation by the Bangor detectives, which were offered under Evidence Code section 356. In particular he refers to “portions of the beginning of the interview wherein the detectives were advising [him] of the nature of the allegations.” The significance of this evidence, he says, is that “some of the allegations mentioned by the detectives appear to have been intentionally factually inaccurate,” and that “permitting solely the portion of the statement containing his explanations could make it appear as though he was admitting conduct that was actually never alleged or testified to by the boys.”
Defendant also argues, apparently in the alternative, that the trial court erred in admitting portions of the Maine interrogation that he characterizes as “superfluous,” “inflammatory,” and “prejudicial.” These apparently consist of (1) fabricated accusations by the detectives, e.g., “The kids have been pretty specific in things . . . [s]uch as, you know, them sucking on your penis”; and (2) criticisms of defendant’s parenting abilities, such as the insinuation by one detective that it was poor judgment to masturbate when he was supposed to be supervising the boys. Defendant argues that the court could not properly “limit this interview in the fashion that it did,” excluding the portions sought by the defense, while admitting “[a]ll the gratuitous and prejudicial editorializing and joking over masturbation . . . .”
It is nearly impossible to evaluate this contention on the present record. It appears that the edited interview as admitted in evidence does not include all of the excerpts that were ruled admissible by the trial court. The court appeared to rule, for instance, that defendant could introduce a portion of the interview in which he described discovering Rusty and the neighbor boy Christian near a dumpster with their pants down. The court also ruled that defendant could introduce his own statement to officers of what he understood the allegations against him to be—“[T]hat I was sucking on [Rusty’s] penis . . . . That I was handling his penis or fondling him.” The court appeared to rule that the defense could, if it chose, introduce an excerpt concerning the hypothesis “that he is thinking that his ex-wife has been planting these ideas.” So far as we can discern, no attempt was made to introduce these excerpts. The court may have expected the defense to introduce them separately. At least, there was no objection when the prosecutor said, referring to its own edited version of the interview, “I am all good to go and the defense can just elicit the additional information on cross.” The record fails to establish any particular excerpt whose admission was sought by the defense but which was excluded by the trial court. We therefore leave this issue to be considered de novo in any retrial.
IX. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by “consistently introduc[ing], over objection, irrelevant evidence which served only to degrade [defendant] and paint him as a sexual deviant with a small penis and odd sexual beliefs and experiences. . . . The jurors in this case were clearly painted a picture of [defendant] as a sexual freak and deviant and this picture . . . was given the trial court’s stamp of approval by admitting all of this collateral evidence over [defendant’s] objection.” The claim of misconduct is thus revealed as a reiteration of the claims of evidentiary error we have already addressed.
X. Reversible Error
We have concluded that the trial court erred in (1) admitting the jailhouse phone conversation between defendant and Angie; (2) admitting the boys’ extrajudicial statements without complying with section 1360; (3) admitting the swimming pool incidents while excluding Chelsea’s prior statement that she believed any untoward touching was accidental; and (4) excluding portions of the “pretext call” offered as bearing upon the portions introduced by the prosecution. Since none of these errors appears to rise to a constitutional level, they will justify reversal only if it appears that they resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) “[A] ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) In a related context, federal courts have spoken of a “probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 693-694.)
This test is satisfied here. The unjustified admission of the jailhouse phone calls alone was enough to significantly enhance the odds of conviction and undermine confidence in the outcome. Defendant, who was charged with indulging a criminally deviant sexual tendency (pedophilia), was shown by those calls to be enthusiastic about a broad array of sexual tendencies which, while lawful, are widely viewed as aberrant, even execrable. This alone created a substantial risk of predisposing the jury to convict not because defendant was convincingly shown to have molested his sons but because he was shown to be a “pervert” who might do anything at all for sexual gratification. The same evidence that placed him beyond the sexual pale was likely to unjustifiably impugn the effectiveness of a key witness, his girlfriend. The harm was magnified by evidence of other pedophilic acts that was weak at best but was given an illusion of probative force by the exclusion of an exculpatory statement by the only supposed victim who could be identified and questioned. The jury was also invited to draw the inference, wholly unsupported on this record, that a man who exhibits sexual interest in adult males is thereby more likely than other men to take an interest in male children. In addition, the jury was permitted to rely on hearsay statements of the two victims without any finding by the trial court that those statements had the requisite reliability to be admitted.
Respondent asserts, as if by rote, that “overwhelming evidence of guilt” appears in the trial testimony of the two victims, appellant’s extensive extra-judicial statements reflecting consciousness of guilt, and propensity evidence showing an inclination to engage in lewd touching with children. Even if some of this evidence were not itself tainted by error—as the last category is—it would not constitute “overwhelming evidence of guilt.” That phrase should mean something a lay speaker of English would understand, not serve as a mere formula for rationalizing affirmance. There have been numerous instances of children falsely reporting sexual misconduct by adults. Such a report can constitute “overwhelming evidence” only if accompanied by very substantial indicia of reliability, such as details that could not otherwise be known to the victim. A child’s knowledge of what a parent’s body looks like is not such a detail; nor is a child’s knowledge of generic facts of life that could easily be learned from other sources, including other children by word of mouth.
For example, while much is made of the boys’ ability to describe ejaculation, Alfie’s account in particular could easily be found to bear little resemblance to normal ejaculation by a reasonably healthy and youthful adult. Asked to describe what he saw coming out of his dad’s private part, Alfie said, “Something that was bubbly. Something like bubbles. I don’t know.” The bubbles “went down his woogie.” This does not clearly describe a normal ejaculation and thus might have been viewed as a probable interpretation of something that was described to Alfie rather than something he saw. In this and other respects the case for molestation of Rusty was significantly stronger than that for Alfie. Had the jury convicted defendant of molesting only one of the children, his maximum sentence would have dropped from 60 years to life (which is what the court imposed) to a term of 15 years to life plus one of up to eight years. (See Pen. Code, §§ 269, subd (b), 288, subd. (b)(1).) The difference may mean little to respondent, who lumps the two cases together, but it would certainly be a more favorable outcome in defendant’s eyes, and constitutes one in the eyes of the law.
We conclude that the errors we have identified substantially undermine confidence in the outcome and point to a substantial likelihood that in their absence a result more favorable to defendant would have been obtained.
Disposition
The judgment is reversed.
WE CONCUR: PREMO, J., ELIA, J.
“(1) The statement is not otherwise admissible by statute or court rule.
“(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
“(3) The child either:
“(A) Testifies at the proceedings.
“(B) Is unavailable as a witness . . . .”