Opinion
E072387
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVEN G. ALEXANDER, Defendant and Appellant.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos, Britton B. Lacy, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1704412) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos, Britton B. Lacy, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
While defendant Steven G. Alexander was separated from his wife, he put up a Facebook post calling her a "whore" and accusing her of having sex with other men. When she went to his house to ask him to take down the post, he forcibly raped her. Two weeks later he forcibly raped her again; he also attempted to forcibly orally copulate her. He might have gotten away with these sexual offenses, because she did not report them, at least not immediately. However, he followed up by sending her a series of vile, nasty, and threatening text messages; she became afraid for her safety, and she called the police.
In a jury trial, defendant was found guilty of two counts of spousal rape (Pen. Code, § 262, subd. (a)(1)) and one count of attempted forcible oral copulation. (Pen. Code, §§ 288a, subd. (c)(2)(A), 664.) He was sentenced to 15 years in prison.
In this appeal, defendant's sole contention is that the trial court erred by barring his defense counsel from cross-examining his wife about whether the Facebook post was true.
We reject this contention because the California Supreme Court has held that it is within the trial court's discretion to exclude collateral impeachment evidence, even when such evidence is more probative than it is here.
I
STATEMENT OF FACTS
A. Defendant's Wife's Testimony.
1. Uncharged prior rape.
V. and defendant married in 2008. They had three children together. Defendant was addicted to methamphetamine, which was "a big issue in [their] relationship." Around 2016, they separated.
One day during this separation, defendant came over to V.'s house and told her to have sex with him. She said no and asked him to leave. He pulled her onto the bed, held her by the neck, and had sex with her by force. Afterwards, she cried and told him that holding her by the neck "wasn't okay"; he scoffed that she was just "role-playing."
2. Rape: Count 1.
Defendant and V. got back together for a while but separated again in March 2017. She was "done with the relationship." He moved in with his mother.
In October 2017, defendant posted on Facebook that V. was "a whore"; in the post, he listed people she had supposedly had sex with. V. was upset. She phoned him and asked him to take the post down, but he said, "No."
The next day, October 13, V. went to defendant's house to get him to take the Facebook post down. She found him in his bedroom. She asked him again to take down the post. Again, he refused. He said he would leave it up, and he would put up even more posts, unless V. orally copulated him. She refused. She kept trying to get him to remove the post, and he kept saying she would have to have sex with him.
At some point during the conversation, someone (probably either defendant or his mother) shut the door. Defendant moved from a chair to the bed. He asked V. to sit next to him. At first, she remained standing. However, after he started talking in a nicer tone, she sat on the bed. He lay down and pulled her down next to him. He took off her pants and underwear. She resisted, but he "overpower[ed]" her. He then "forced [her] to have sex against her will[.]" She resisted and told him to stop, but once again, he "physically overpowered" her.
When he was done, she said "what he did wasn't okay" and told him, "[L]eave me alone." She then left. She did not call the police because she did not realize it was a crime to force your wife to have sex.
3. Rape and attempted oral copulation: Counts 2 and 3.
On the night of October 27-28, defendant messaged V., saying he was coming over to her house to have sex with her. She told him not to come over and that that she was not going to have sex with him. He continued to send her messages demanding sex.
Around 12:30 a.m., defendant arrived at V.'s house. Her mother and her children were in the house, asleep, so she met him outside. He said, "Let's go have sex right now." She refused. However, she agreed to follow him over to his house, "to move the confrontation away from [her] home." In the past, he had threatened to cause a scene and "make the cops show up."
At defendant's house, V. did not want to go inside, so they talked outside. He asked her again for sex and said it was her "job."
At some point, defendant's mother came outside to smoke. When she did, defendant went inside. Defendant's mother asked V. what was wrong. V. felt it was an embarrassing, private matter, so she just said she was tired.
V. went inside to try to convince defendant to stop harassing her. He asked her to come into his bedroom. She did, but she insisted that the door stay open. He said, "Okay." As they talked, however, he said he wanted the door closed. She said, "Fine, but . . . do not touch me."
At some point, defendant sat on the bed. He asked V. to sit next to him. At first, she refused. After he said he missed her, however, she felt "a little bit of trust," so she sat.
Defendant lay down on the bed and "laid [V.] down next him." He then took off her pants and underwear. He held her down so she could not move and "forceful[ly]" had sex with her. She said no and told him to stop. She also tried to hit him and tried to push him off. He made a fist and said if she resisted, he would knock her unconscious and then "do whatever he wanted with [her] body." He put his hands over her mouth, which prevented her from screaming. At one point, defendant tried to force V. to orally copulate him by moving his penis toward her face. She avoided this by putting a pillow over her face. When he was done, she told him "that wasn't okay" and left.
Defendant started sending V threatening text messages. In one, he said he would "throat fuck" her.
In another, he demanded that she send him a photo of herself with her "mouth wide open," adding, "I better get it[.]"
In a phone call, he said "he was going to kill [her] and drop [her] body in Jurupa." On November 8, defendant sent V. multiple texts.
One said, "You don't have a spine. You mindless whore. You're going to get fucked by me, and you won't do shit about it because you're scared and weak."
Another said, "I like how easy I can fuck you. Yeah, act tough, bitch. That's fine, but you'll do anything for money[.]"
He also texted, "You're going to get fucked to death by an angry addict." In that text, he threatened to "snatch [her] off the street" and said he had friends who could "handle [her] for [him]."
Around 7:00 a.m., he texted that she had better be home by 10:00, because he was going to be there and make her do whatever he wanted.
The text messages made her afraid and concerned for her safety, so she called the police.
B. Expert's Testimony.
Detective Christian Vaughn testified as an expert on domestic violence. He described the "cycle of violence," which consists of a tension-building phase, in which the abuser starts to take control and the victim tries to placate him; an explosion phase, in which the abuser responds to a loss of control over the victim (or to some external stressor) with an "eruption of rage"; and a honeymoon phase, in which the abuser tries to convince the victim that he is sorry and it will never happen again.
In the tension-building phase, a victim might give in to a demand to go into a house even though she does not want to; she might also give in when the abuser closes a door, even though she did not want it to be closed. Posting a photo of the victim and accusing her of being a whore would be typical of the tension-building phase.
According to Detective Vaughn, an abuser has "a compulsive need" for control over the victim. An abuser who fears losing control is likely to escalate the level of violence. Thus, the most dangerous time can be when the victim finds the courage to break up with the abuser. Abusers tend to minimize, deny, and shift the blame. For example, an abuser who has just raped his wife might well claim they were just role-playing.
He testified that it is common for the victim or sexual abuse not to believe she is the victim of a crime but rather to believe that it is her "job" to submit. A victim may be too embarrassed to disclose abuse. When asked if something is wrong, she may lie. It is also very common for a victim to have difficulty recalling details of the abuse.
Victims of abuse who have children can be "mama bears" who will do anything to protect their children. A victim of abuse might risk further abuse "to take a conflict away from the home that the children are located in[.]"
C. Defendant's Mother's Testimony.
According to defendant's mother, when V. arrived at her house to confront defendant regarding the Facebook post, V. said, "I'll hit him. I'll get him to hit me back. I want him in jail."
While V. and defendant were in the bedroom, defendant's mother stayed in the hallway outside the door. She did not hear anything unusual. When V. came out, she seemed "very calm." Defendant's mother said, "I'm glad you worked things out," and V. either nodded or said "Yeah."
On October 28, V. came to defendant's house alone; defendant was inside. While V. and defendant were in the bedroom, defendant's mother was sitting about 20 feet outside the door. She did not hear anything unusual. When V. left, she looked "sad" but not "upset." Defendant's mother asked, "[A]re you okay?" V. replied, "I'm okay."
When the police interviewed defendant's mother, she did not remember the October 28 incident. She remembered it only after defendant told her it was "the night that [she] said V[.] looked a little sad."
II
CROSS-EXAMINATION REGARDING THE TRUTH OF THE FACEBOOK POST
Defendant contends the trial court erred by precluding him from cross-examining V. about whether the Facebook post was true.
A. Additional Factual and Procedural Background.
On direct, regarding the Facebook post, V. testified:
"Q. What upset you about it?
"A. Um, well, it wasn't true, and I just felt violated that he — that's something he would put on social media."
"Q. So then what happened?
"A. I told him that it wasn't okay and that he needed to take it down.
"Q. Why wasn't it okay?
"A. Because it was untrue, and it was not something that my friends and family and all of whoever is on the Internet needs to see." (Italics added.)
At a break, defense counsel asked for permission to cross-examine V. about whether the Facebook post was true, because it would go to her credibility: "To be clear, I'm not arguing that . . . she lacks credibility because she slept around. I'm arguing that she lacks credibility because she said something that isn't true on the stand." He added: "[M]y preference would be by specific examples. . . . [I]f the Court thinks that that is in danger of causing prejudice and confusing the issues, then I would be happy to limit it to just simply asking her if every allegation in there is untrue."
The prosecutor objected based on relevance and section 352.
The trial court excluded the evidence: "[Section] 1103 . . . is quite clear that they want to protect the complaining witness from having their sexual history be on trial, and they are also very clear that they don't want the credibility issue to be the end run around the rule . . . . That's why they have that very prescribed procedure of [section] 782 that you have to comply with, and even then, you've got to get over a [section] 352 hurdle." "[T]hat [section] 782 procedure . . . was not followed." "[U]nder [section] 352, . . . [i]t would just be confusing the jury, . . .and I just don't see it as sufficiently probative."
B. Discussion.
Under section 352, the trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
This and all further statutory citations are to the Evidence Code. --------
Under section 1103, in a prosecution for a sexual offense, evidence "of the complaining witness' sexual conduct . . . is not admissible by the defendant in order to prove consent . . . ." (§ 1103, subd. (c)(1).) However, "[i]f the prosecutor introduces evidence . . . relat[ing] to the complaining witness' sexual conduct, the defendant may . . . offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor . . . ." (§ 1103, subd. (c)(4).) Moreover, section 1103 expressly does not "make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782." (§ 1103, subd. (c)(5).)
And under section 782, in a sexual offense prosecution (§ 782, subd. (c)(1)), "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness," certain procedures must be followed. (§ 782, subd. (a).) Among other things, the defendant must make a written motion, which must include an offer of proof. (§ 782, subds. (a)(1), (a)(2).) If the offer of proof is sufficient, the trial court must hold a hearing, at which both sides may question the complaining witness. (§ 782, subd. (a)(3).) Then the trial court may admit the evidence if it is relevant to the witness's credibility under section 780, and if it is not more prejudicial than probative under section 352. (§ 782, subd. (a)(4).)
"'A trial court's decision to admit or exclude evidence is reviewable for abuse of discretion.' [Citation.]" (People v. Fayed (2020) 9 Cal.5th 147, 170.)
Here, the trial court excluded the evidence based on both section 352 and section 782. We need not decide whether it properly relied on section 782, because the exclusion of the evidence under section 352 clearly was not an abuse of discretion.
Defense counsel's proposed line of questioning was not particularly probative. As V. had already testified that the post was untrue, most likely she would continue to do so; defense counsel did not claim to have any evidence to prove that it was true if she did. Moreover, her testimony that the Facebook post was untrue would be a lie if, and only if, the post was entirely true. Defense counsel did not suggest that V. was a "whore," so it was untrue at least to that extent. Moreover, it was untrue if it listed even one person with whom she had not had sex.
Thus, it was very unlikely that the evidence would show that V. lied on the stand. At most, it would devolve into niggling queries about which parts of the post were true and which were false. And that would mean rehashing V.'s sexual history in an embarrassing, harassing, and vindictive manner. This is against the public policy underlying sections 782 and 1103. (See People v. Bautista (2008) 163 Cal.App.4th 762, 782; People v. Rioz (1984) 161 Cal.App.3d 905, 916.)
Even if, on cross-examination, V. did admit having sex with some of the men, reasonable jurors could actually view her as more credible; her testimony on direct would still be true, and her admission on cross would show that she would not lie even about embarrassing matters.
This line of questioning was also likely to confuse the jury. Even with appropriate instructions, lay jurors could easily jump to the conclusion that, if V. had had sex with another man, that was relevant to whether she consented to have sex with defendant.
Finally, even assuming V. would have admitted that the Facebook post was entirely true, the trial court could properly exclude that evidence, under People v. Lavergne (1971) 4 Cal.3d 735. There, the defendant was convicted of robbery, based, in part, on the testimony of his getaway driver. (Id. at pp. 738-739.) On cross, the driver testified that he bought the getaway car and it was not stolen. (Id. at p. 741.) The trial court excluded evidence that it was stolen, citing section 352. (Ibid.)
The Supreme Court held that this was not an abuse of discretion. (People v. Lavergne, supra, 4 Cal.3d at pp. 741-744.) It explained: "The evidence the defense sought to have admitted contradicted the testimony of the witness and was therefore relevant . . . ." (Id. at p. 742.) However, "[t]he defense sought to impeach [the driver] on what the trial judge correctly noted was a collateral matter. The fact that the car was stolen had nothing to do with the facts at issue in the trial." (Ibid.) "While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." (Ibid.) "California courts have, in cases similar to this one, held the court's exclusion of collateral facts offered for impeachment purposes to be a proper exercise of the trial judge's discretion." (Id. at p. 743.)
In Lavergne, defense counsel made an offer of proof, using extrinsic sources, that the witness lied. Defense counsel here did not. Moreover, unlike in Lavergne, here, the evidence ran counter to the policy of protecting the privacy of victims of sexual offenses. Because the evidence in Lavergne could be excluded, a fortiori so could the evidence here.
At oral argument, defendant's appellate counsel suggested that the excluded evidence was a "double-edged sword" — not only would it have shown that V. was not credible, but also that defendant himself was credible. Defendant's credibility, however, was not at issue. He did not testify, and his out-of-court statements — such as that having sex with him was V.'s "job," or that V. was "going to get fucked to death by an angry addict" — were not introduced for their truth.
We therefore conclude that, under section 352, the trial court properly precluded cross-examination about whether the Facebook post was true.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. RAPHAEL
J.