Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. JJD061809, Hugo J. Loza, Commissioner.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Julio S. contends there was insufficient evidence to support the juvenile court’s finding that he committed a violation of Penal Code section 286, subdivision (c)(2), sodomy by force. He also contends that the court erroneously excluded evidence that, before he committed the offense, the victim discussed her previous sexual experiences in his presence. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The district attorney filed a juvenile wardship petition on March 13, 2007, alleging that Julio S., then 17 years old, committed one count of sodomy by force. The jurisdictional hearing began on April 23, 2007. The victim, C. R., who was 15 at the time of the hearing, testified that she met Julio for the first time in early March while walking in the neighborhood of her father’s house in Tulare, which was also Julio’s neighborhood. She spent an hour or two with him then. She encountered him again the next day at a nearby park. C. R., her brothers, her cousin, Julio, and a group of Julio’s friends played baseball and then went home.
The same group gathered at Julio’s house the next day. C. R. said that, in the driveway, with the other children present, Julio started “grabbing my butt and like touching me in places that he shouldn’t have been.” She said, “I wasn’t exactly telling him no but I wasn’t telling him yes or anything like that.” Julio pushed C. R. toward the garage. Inside, he kissed her and grabbed her between the legs. She told him to stop. Her brothers and cousin came into the garage and said they were going home. C. R. got up to leave with them, but Julio followed and pushed her toward the back yard. She thought Julio might have a gun, having seen one of his friends with one the day before. Her younger brother claimed one of the other children threatened him with a gun. Other testimony indicated that this might have been a BB gun or a gun that fired plastic pellets.
Once in the back yard, Julio pushed C. R. against the house, kissed her, and began trying to take her clothes off. She tried to push him away, but he succeeded in removing her pants and underpants. He said “stuff like, ‘Oh, don’t you want it. Don’t you want it,’ and be quiet because I was telling him no.” He placed his fingers inside her vagina. Next, C. R. testified as follows:
“He, like, tried to get inside of me but I kept trying, I kept pushing him away and then he ended up behind me because I tried to bend down and pull up my pants and tried to walk away at the same time, and he got distance between me and the wall and he got behind me and then tried to get inside of me from behind and at a point he did get inside of me, and yeah.”
He penetrated her anus with his penis. She did not see this, but knew it was his penis because “it was more full, I guess, than his fingers would be.”
C. R. continued trying to get away, but Julio persisted. “[H]e said to me, ‘You don’t like it like this? How about on the ground,’ and he pushed me down and got on top of me.” He penetrated her vagina with his penis. Shortly afterward, Lorenzo Youngblood, a friend of Julio’s, came into the back yard and announced that C. R.’s father had arrived. Julio fled into the house.
C. R. stood up, put her clothes back on, and went to her father. She was in pain. She told her father what happened. He took her home and she called the police. Within three hours, she was brought to a sexual assault response team (SART) nurse for a medical examination.
The nurse, Amanda Welker, testified that she found a rectal tear at the 12:00 o’clock position and an anal tear at the 5:00 o’clock position. The anal tear was actively bleeding and was consistent with forced entry. It was possible, but unlikely, that the injuries were caused by consensual anal intercourse or a hard stool. C. R. found it painful to sit down and engage in some other activities for two or three days after the assault.
There were no signs of trauma in the vaginal area. Welker found no semen, foreign body hairs, or bruising. There was a blade of grass on C. R.’s left buttock.
Julio testified at the hearing. In his telling, his encounter with C. R. began with a conversation in which she asked him if he had a girlfriend and whether he was a virgin. She walked willingly into the garage with him and they sat on a couch. He kissed her and she kissed him back. She massaged his penis. He touched her thigh and kissed her neck. She suggested they go outside and move to the side of the house where they would not be seen. They leaned against the house and kissed. She touched his penis through his pants and tried to put her hand inside his pants, but his belt was too tight. He put his hand in her pants and placed his finger in her vagina. At this point, C. R. saw her father drive up and park. “That’s when she panicked and then she started zipping up her pants real quick, started running, and then she got teary eyed and that I supposedly tried to rape her.”
Julio denied that he ever had his penis out of his pants. He did not penetrate her or attempt to do so. He also said he never pushed her into the garage or the yard, never tried to take her clothes off, never held her down or restrained her, and never forced her to kiss him or touch him. Also, she never told him to stop touching or kissing her. He thought C. R. seemed afraid of her father when he arrived.
The defense presented testimony by Julio’s friends, Lorenzo Youngblood and Shauntel Davis; Julio’s neighbor, Shaun Davis; and Julio’s mother, Christina Russell. Shaun and Shauntel never saw Julio and C. R. kissing or hugging. Lorenzo saw them hugging and Russell saw them hugging and kissing. Lorenzo, Shaun, and Russell all testified they never saw Julio push, restrain, threaten, or yell at C. R. and never heard C. R. yell out or tell Julio to stop.
In the street, Shaun and Lorenzo saw C. R.’s father looking for C. R. They told him she was at Julio’s house. Appearing angry, C. R.’s father quickly drove to Julio’s house. Shaun and Lorenzo followed. Lorenzo denied that he went to the back yard to warn Julio that C. R.’s father had arrived; he also denied that he saw C. R. with her pants down.
At Julio’s house, C. R.’s father angrily said, “‘where’s my fucking daughter?’” Shaun testified that C. R. heard this, became frightened, and said, “‘Oh, he raped me.’” Russell heard C. R.’s father yelling at C. R. loudly as they were leaving.
The court sustained the petition, finding that Julio committed sodomy by force. At the disposition hearing, the court rejected the probation officer’s recommendation that Julio be committed to the California Department of Corrections and Rehabilitation, Juvenile Justice. It considered, as a mitigating factor, what it found to be C. R.’s flirtatious behavior and willing participation in the kissing and touching prior to the assault. The court found that this behavior gave rise to an actual but unreasonable belief on Julio’s part that C. R. was willing to have sex with him, although she resisted and told him to stop. It ordered him to serve 168 to 365 days in juvenile hall with probation afterward.
DISCUSSION
I. Sufficiency of the evidence
Julio argues that the evidence was insufficient to prove the offense. More specifically, he contends that C. R.’s account of the facts, upon which the court relied, was inherently improbable.
When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Under the doctrine of inherent improbability that Julio relies on, “an appellate court can reject the positive testimony of a witness only when that testimony is ‘inherently improbable.’ It is not sufficient that the testimony may disclose circumstances which are unusual. Where the testimony is such that within the knowledge of reasonable men it cannot be true the appellate court might assume that knowledge and hold the testimony legally insufficient .…” (People v. Collier (1931) 111 Cal.App. 215, 226.) “To come within the rule of inherent improbability, testimony must be such that it is physically impossible for it to be true, or its falsity must be apparent without resort to inference or deduction.” (People v. Norman (1959) 175 Cal.App.2d 348, 352; see People v. Watts (1999) 76 Cal.App.4th 1250, 1258-1259; People v. Breault (1990) 223 Cal.App.3d 125, 140-141; People v. Allen (1985) 165 Cal.App.3d 616, 623.) The doctrine does not permit reversal on the basis of ordinary conflicts or weaknesses in the evidence. “‘“Conflicts [in the evidence] and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.”’” (People v. Mayberry (1975) 15 Cal.3d 143, 150.)
Julio lists several aspects of C. R.’s story that he claims are inherently improbable. We conclude that none of these are inherently improbable within the meaning of the doctrine.
First, Julio claims C. R. “testified that just after [he] had allegedly penetrated her anus with his penis, … his pants were not unbuttoned or removed.” C. R.’s actual testimony was as follows:
“Q. And when Lorenzo walked in and said, ‘Your dad’s here,’ you were on your back?
“A. Yes.
“Q. And Julio was still on top of you?
“A. Yes.
“Q. Where were Julio’s pants?
“A. They were around his waist.
“THE COURT: Did he ever take his pants off?
“THE WITNESS: I’m not sure. I don’t think he did because when he got up his pants were on and buttoned.”
This testimony is not inherently improbable. It would not have been physically impossible, or even particularly difficult, for Julio to pull up and button his pants as he was getting up from the ground.
Next, Julio argues that C. R.’s account was inherently improbable because she never saw his penis but believed he penetrated her anus with his penis on the basis of how it felt. It is not physically impossible to identify a penis on the basis of how it feels. C. R.’s testimony that what penetrated her felt like a penis does not appear false without resort to inference or deduction. Julio’s argument about this testimony is really nothing more than a challenge to the weight the trial court gave it. We do not re-weigh the evidence upon which the finder of fact relied.
Third, Julio points out that, while C. R. testified Lorenzo came into the back yard to warn Julio that C. R.’s father had arrived, Lorenzo testified he did not do this and did not see C. R. on the ground, pulling up her pants, or engaging in any sex acts with Julio. This, of course, is a conflict between the evidence given by a prosecution witness and that given by a defense witness. The resolution of evidentiary conflicts is the essence of the fact-finder’s job. It has nothing to do with inherent improbability.
Next, Julio says two witnesses claimed they saw Julio and C. R. “in what appeared to be consensual hugging and kissing behavior, up until the time that her father arrived .…” Julio’s brief does not explain why this is important, but his point must be that if consensual behavior was happening up to the time when C. R.’s father arrived, then there was no time for the crime to take place. The testimony Julio cites, however, does not say that Julio and C. R. were engaged in consensual kissing and hugging up until the time C. R.’s father arrived. Some of the testimony says C. R. and Julio were kissing and hugging, and some of it says C. R.’s father arrived. None of it says they were kissing and hugging “up until the time” when he arrived. The record is simply not as Julio describes. Even if it were, only the fact-finder’s credibility determinations and decisions about the weight of competing evidence would be implicated. Julio’s argument, once again, has nothing to do with inherent improbability.
Fifth, Julio says C. R. “described a long struggle with [him] on the grass … yet her clothes did not have any grass stains .…” C. R. testified that Julio forced her pants down and penetrated her anally while they were still standing. He pushed her to the ground and penetrated her vaginally after her pants were already down. When she was on the ground, therefore, her pants need not have been trapped under her but might have been around her ankles and might not have been stained by the grass for that reason. In any event, the SART nurse testified that the pants were dirty, although they did not have grass stains. There is nothing inherently improbable about the combination of C. R.’s account and the absence of grass stains.
Sixth, Julio describes testimony according to which C. R.’s brothers entered the garage while Julio and C. R. were kissing. C. R. “reported that her brothers threatened to ‘tell on her’.… They apparently did, in light of her father’s angry arrival,” Julio’s brief states. Julio does not explain how this makes C. R.’s version of events inherently improbable. We do not see its relevance to his argument.
Seventh, Julio states:
“Nobody observed either [C. R.] or [Julio] without clothes, so as to permit anal penetration with a penis, as required by the statute involved here. [C. R.] never saw [Julio’s] penis, and [Julio’s] pants had not been removed. Thus, [C. R.’s] account of the events in question is inherently improbabl[e], because it is physically impossible to penetrate an anus with a penis, without exposing either of those areas by removal of clothing.”
C. R. observed C. R. with her pants down. She also felt Julio’s penis penetrate her anus. Julio’s challenge, again, is to the court’s credibility determinations and has nothing to do with inherent improbability.
Julio also attacks the medical evidence. The nurse examiner testified that the tears she found were consistent with forced penetration but could have been caused by something else. Based on this testimony, Julio contends, “reliance on the described rectal injury as evidence, resorts to pure speculation that the tear was caused by penetration” by a penis as opposed to a hard stool or penetration by something else, such as a finger. Julio further argues that the injury could have been caused by intercourse with someone other than him.
None of this shows that the evidence was insufficient to prove the offense. The trial court reasonably could find, beyond a reasonable doubt, that C. R.’s testimony, combined with the medical evidence, showed that Julio penetrated C. R.’s anus with his penis forcibly and against her will.
In sum, Julio’s contentions that there was insufficient evidence to prove the offense and that C. R.’s testimony was inherently improbable have no merit.
II. Evidence of the victim’s prior sexual experiences
Defense counsel offered to prove that C. R. discussed her previous sexual experiences in Julio’s presence. Counsel told the court:
“The remarks that were made were that she was not a virgin. That she had had sex with six or seven males including a friend of her father’s who was substantially older than her, and she and her friends did not look to hang around with people who were virgins because they did not know what to do when having sex. Those were statements she made to several people at the park as well as at the house prior, just prior to the incident occurring.”
The court excluded this evidence. Julio now argues that it should have been admitted to “attack the credibility of the complaining witness on the issue of consent.” We review the ruling for an abuse of discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711.)
California’s rape-shield statute provides that, in prosecutions for rape and other sex offenses, “opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct” cannot be introduced by the defendant “in order to prove consent by the complaining witness.” (Evid. Code, § 1103, subd. (c)(1).) Evidence Code section 1103, subdivision (c)(5), states that this rule must not “be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.” Evidence Code section 782 provides that a defendant offering to use evidence of the complaining witness’s sexual conduct to attack her credibility must make a motion in writing supported by an offer of proof in a sealed affidavit. If the court finds the offer of proof sufficient, it must conduct a hearing out of the presence of the jury to determine the admissibility of the evidence.
At trial, defense counsel said she wanted to introduce evidence of C. R.’s statements because “I would like to be able to ask her if she made [the] statements and if she says no then I would like to be able to impeach her with witnesses who will testify that she did, in fact, make the statements.” When the court asked what the point of this would be, defense counsel replied, “That proves she’s willing to lie under oath.” The court ruled:
“I think that this statement, if the Defense was allowed to go into this thing, the probative value of that is so low and the prejudicial value is so high that prejudice clearly outweighs the potential credibility issue in this case because it’s a matter that I don’t believe is of great significance or importance.”
On appeal, Julio argues that the evidence of C. R.’s statements was not made inadmissible by the rape-shield statute because it was not “opinion evidence, reputation evidence, [or] evidence of specific instances of the complaining witness’ sexual conduct,” as Evidence Code section 1103, subdivision (c)(1), requires. He further argues that, even if the evidence would have been within the scope of the shield statute otherwise, it was admissible under Evidence Code section 1103, subdivision (c)(5), to undermine C. R.’s credibility.
The court did not abuse its discretion in excluding the evidence. Regardless of whether the evidence was encompassed within the rape-shield law, and even if it was relevant to the issue of C. R.’s credibility, the court properly found under Evidence Code section 352 that the prejudicial effect of the evidence substantially outweighed any probative value it had. If C. R.’s comments had any relevance to the issue of consent (or “credibility … on the issue of consent,” as Julio puts it), it was marginal. Her alleged expressions of sexual bravado might have indicated a general interest in sex and might have been an exhibition of flirtatiousness, but they could not have made any material contribution to a showing that she consented to have sex with any particular individual.
Julio argues that we cannot affirm the judgment based on Evidence Code section 352 because “the prosecutor objected to the evidence under Evidence Code section 1103, subdivision (c) and … Evidence Code section 352 was not mentioned” during the trial. The failure to mention Evidence Code section 352 by name did not waive the issue of whether the evidence properly was excluded on the ground that its prejudicial effect substantially outweighed its probative value. The ruling a court must make when deciding the admissibility of credibility evidence under Evidence Code section 1103, subdivision (c)(5), is a section 352 ruling: The court determines whether the tendency of the evidence to undermine the alleged victim’s credibility is outweighed substantially by its prejudicial effect. (Evid. Code, § 782, subd. (a)(4); People v. Chandler, supra, 56 Cal.App.4th at p. 711.) This is exactly the type of ruling the court made in this case.
Defendant also argues that the court should not have excluded the evidence because of its prejudicial effect because the proceeding was a bench trial, and the court, unlike a jury, could be counted on not to be improperly influenced by inflammatory evidence. There is no rule, however, that Evidence Code section 352 does not apply in bench trials. Judges presiding over bench trials are not required to admit evidence whose probative value is substantially outweighed by its prejudicial effect just because they can assure themselves that they will not be influenced by the prejudicial effect but will instead assign the evidence the low weight its small probative value warrants. They can take the more straightforward step of excluding the evidence as Evidence Code section 352 contemplates.
Even if the court erred, its error was harmless under any standard. The court expressed the view that the evidence had very little probative value. There is no likelihood that it would have found Julio did not commit the offense—because lack of consent was not proved—if, instead of excluding the evidence, it had admitted it and considered its small probative value. Julio never claimed he had consensual sex with C. R. He claimed he did not have sex with her. Admission of the evidence of C. R.’s alleged sex talk would not have produced any probability that, instead of believing C. R., the trial court would have rejected both her story and Julio’s and concluded that they had consensual sex.
Finally, Julio argues that “defense counsel … should at a minimum have been allowed to ascertain whether the complainant had had sex with others within a reasonable time frame” in order to show that the injuries found by the nurse were not caused by an assault by him. He cites no place in the record where his trial counsel sought leave to question C. R. for this purpose or made an offer of proof that C. R. had sex with anyone else during the relevant time frame. He cannot raise this new theory for the first time on appeal. (See People v. Woodward (2004) 116 Cal.App.4th 821, 831-832 [by not raising issue in trial court, defendant waived claimed error of excluding evidence of prior molestation that might have been true source of victim’s knowledge of erections].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Gomes, J., Hill, J.