Opinion
C085759
04-29-2020
THE PEOPLE, Plaintiff and Respondent, v. SHANON WAINE BISSELL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE008525)
An amended information charged defendant Shanon Waine Bissell with molesting his granddaughter (G.D.) and her cousin (O.D.) when the girls were under the age of 14. Following a jury trial, he was found guilty of molesting G.D. (three counts of committing a lewd and lascivious act (Pen. Code, § 288, subd. (a))) but not guilty of molesting O.D. (three counts of committing a lewd and lascivious act (Pen. Code, § 288, subd. (a))). The jury also found true the allegations that he had substantial sexual conduct with a victim under the age of 14. (Pen. Code, § 1203.066, subd. (a)(8).) The trial court sentenced him to an aggregate term of seven years in state prison and he timely appealed.
On appeal, defendant contends the judgment must be reversed due to prejudicial evidentiary errors and prosecutorial misconduct. Recognizing that his prosecutorial misconduct claim may have been forfeited, defendant argues that any objection and request for admonition would have been futile. Alternatively, he argues that trial counsel rendered ineffective assistance. Defendant additionally contends that the cumulative effect of the evidentiary errors and prosecutorial misconduct requires reversal of the judgment. Finally, defendant asks us to independently review subpoenaed confidential records pertaining to G.D. and O.D. to determine whether the trial court erred in concluding that portions of these records were not discoverable by the defense. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In view of the issues raised on appeal, we do not recite in detail the proceedings below. Instead, we briefly summarize the pertinent facts and procedural history necessary to the disposition of this appeal. Additional information relevant to the claims on appeal is discussed below.
Factual Background
G.D. was born in September 2009. Defendant is her grandfather. Defendant's daughter, Michaela, is G.D.'s mother.
At all relevant times, Michaela was a single mother. She occasionally relied on defendant for childcare. In late 2014, defendant watched G.D. at his apartment several times after she turned five.
In February 2015, Michaela obtained custody of her five-year-old niece, O.D (born April 2009), who had previously been in foster care. O.D. is the daughter of Michaela's half-sister, Carmen. Michaela and Carmen share the same mother (Mala) but have different fathers. As such, Carmen and O.D. are not biologically related to defendant.
At the time Michaela obtained custody of O.D., she began the process of adopting her. As part of this process, Michaela and O.D. had regular visits from social workers. O.D. was also seeing a therapist and had supervised visits with her mother.
After O.D. moved in with Michaela and G.D., there was a "big adjustment period." G.D. was used to being an only child and O.D. had gone through some "difficult times." O.D. missed her mother all the time; it was really hard for O.D. to be away from her mother. When O.D. was upset about her mother, she acted out by lying. At a family court appearance, O.D. accused Michaela of spanking her. However, O.D. later admitted that she had lied because she wanted to live with her mother.
O.D.'s behavior improved over time and she and G.D. eventually developed a close relationship. O.D. was more mature than G.D and sometimes tried to tell her what to do. G.D., however, was "very stubborn" and did not let others "push her around."
According to Michaela, O.D. had "issues with lying" in the fall of 2015 because she was afraid of getting into trouble and being sent back to foster care. While O.D.'s lies tended to be about "kid things," Michaela did not trust her at times. Michaela reported to O.D.'s therapist that O.D. had been making up stories and had a difficult time following directions, and that O.D.'s lying was making her feel like O.D. could not be trusted. O.D.'s therapist, however, did not characterize O.D.'s behavior as "lying communications" but rather "age appropriate boundary testing and also sometimes not remembering moments."
Defendant, who was employed as a truck driver, was away from his home for long periods of time. When he was home, he would occasionally watch G.D. and O.D. at his apartment. According to Michaela, defendant had a great relationship with the girls and they would be excited to see him. Prior to December 2015, Michaela and defendant were very close; she had no concerns about him watching the girls.
Between September 2014 and December 2015, defendant took care of G.D. "quite a bit." When defendant watched G.D., she would stay at his apartment during the day and would sometimes spend the night. On two occasions after G.D. returned home from defendant's apartment, Michaela gave her a bath and noticed her vagina was red. On one of those occasions, G.D. complained of irritation.
In contrast to G.D., defendant did not watch O.D. that often. He watched her no more than four times and she only spent the night at his apartment once.
Around mid-December 2015, Michaela told a social worker that O.D.'s aggression, lying, and failing to follow directions had increased after she had a bad visit with her mother. The social worker indicated that it was common for six-year-olds like O.D. to have trouble adjusting to a new home, not follow directions, and lie about small things. According to the social worker, nothing Michaela had said caused her any concern.
From December 20 to December 23, 2015, G.D. stayed with defendant while Michaela was recovering from a medical procedure. During this time period, O.D. stayed with her grandmother (Mala).
When G.D. returned home on December 23, 2015, she was acting "a little down" and did not seem like herself. Michaela asked her what was wrong and eventually inquired whether defendant had touched her inappropriately. In response, G.D. said that defendant had touched her vagina under her clothes more than one time, and that he had asked her to touch him but she refused. G.D. indicated that defendant's abuse started when she was five years old.
Because Michaela was molested as a child, she had spoken with G.D. and O.D. several times about the difference between good touching and bad touching.
Michaela immediately called Mala to find out whether defendant had also touched O.D. inappropriately. During the call, Michaela told Mala about G.D.'s accusations of abuse. Because Michaela was speaking loudly, O.D. overheard some of the things Michaela was saying and nodded her head.
Following the call, Mala spoke with O.D. When asked, O.D. indicated that defendant had touched her but that she had not touched him or seen him naked. Thereafter, Mala called Michaela and told her what O.D. had said.
Two days later, on Christmas day, Michaela called the police and reported defendant's abuse. A police officer came to the residence that day and interviewed the girls separately.
When G.D. was interviewed, she indicated that defendant had put his hand underneath her underwear and rubbed in the "area where she went potty" but did not put his finger inside of her. On a separate occasion, defendant touched her private and asked her if she wanted to touch his private. G.D. explained that she complied with his request because she was scared and did not know what else to do. G.D. described defendant's penis as "[l]ong and round" and hard. She also said that it looked like an "umbrella." G.D. said that she touched defendant's private with one finger for a short time, and that, after she stopped, he rubbed his private up and down until "white stuff" came out onto his "tummy."
In early January 2016, Michaela was interviewed by a police officer. During the interview, Michaela explained that she had to ask G.D. multiple questions before G.D. revealed defendant's abuse. When Michaela attempted to elicit details of the abuse, G.D. became hesitant to talk. On that same day, a forensic interview specialist conducted SAFE (Special Assault Forensic Evaluation) interviews with G.D. and O.D. The interviews were recorded and played for the jury.
During G.D.'s SAFE interview, she accused defendant of abusing her. She claimed that he had touched her private "[a] lot of times," and that she had touched his private when she was five and six years old. G.D. also claimed that defendant had kissed her on the lips and cheek and told her to say bad words when she was five and six years old.
G.D. described three specific incidents of abuse over the course of her SAFE interview. In the first incident, defendant touched her private with his finger while they were sitting on the couch in his living room watching a movie. When she was asked what her body felt like at the time, G.D. said "kind of scared," explaining that her "whole body was scared." In the second incident, G.D. touched defendant's private while she was on the couch playing a video game. He also touched her private. G.D. noted that while defendant had asked her to touch his private "a lot of times," she only touched it once. G.D., however, described a third incident in which she touched his private while they were on his bed. She explained that she was rubbing his private while he was touching her private when "white stuff" came out. When asked, G.D. said defendant had told her that he would go to jail and she would be taken away and never see her family again if she told anyone about the abuse. Although G.D. promised defendant she would not to tell anyone about the abuse, she told the police and her mother, grandmother, and aunt.
During O.D.'s SAFE interview, she accused defendant of abusing her when she was five and six years old. She claimed that he had touched her private under her clothes three times while she was at his apartment watching movies on his couch. During two of the incidents, he touched the inside of her private. Like G.D., she also used the phrase "[m]y whole body was scared" to describe how she felt when defendant was touching her. According to O.D., defendant threatened her after each incident of abuse; he told her that she would go back to foster care if she told anyone about what had happened. Despite defendant's threats, O.D. reported his abuse to her grandmother.
A few months after the SAFE interviews, Michaela reported to a social worker that O.D. had a "major increase" in lying to authority figures and not following directions.
At trial, both G.D. and O.D. testified against defendant. G.D., who was seven years old at the time, said that her mother had talked to her "a little bit" about good touches and bad touches, and that defendant had touched her private underneath her underwear one time and she touched his private one time. G.D. did not remember how old she was when this happened. Nor could she remember any other time when defendant had touched her private. However, she recalled a time when she touched defendant's private after he asked her to do so. When asked to describe what she saw come out of his private, G.D. said it was like "Play-Doh and oily," and "a little bit hard." She indicated that the "stuff" that came out was close to the color white. She also said that she did not tell O.D. about the abuse before she told her mother and the police, and that she had not talked to O.D., her grandmother, or her aunt about the abuse. According to G.D., O.D. never told her that defendant had touched her private.
O.D. was eight years old at the time she testified at trial. She claimed that defendant had touched her private two times under her underwear. She also claimed that he had threatened her; he told her that she would go back to foster care if she reported the abuse. Contrary to G.D.'s testimony, O.D. said that she and G.D. talked about defendant's abuse before they reported it. According to O.D., G.D. initiated the conversation by asking her if "something bad [had] happen[ed]" at defendant's house. In response, O.D. indicated that something bad had happened but they did not talk about what the bad thing was, and did not tell each other what to say about defendant's conduct. O.D. explained that she and G.D. made a plan in which G.D. would tell her mother (Michaela) about the abuse and O.D. would tell her grandmother (Mala). When Mala subsequently received the phone call from Michaela disclosing defendant's abuse, O.D. was expecting it.
Defendant, who was 49 years old at the time of trial, testified on his own behalf. He denied the girls' accusations of abuse. He claimed that he never touched G.D. or O.D., and never asked either of them to touch him.
When asked, defendant said Michaela had told him that the girls were not allowed to bathe together because they were "acting sexually with each other." He also said that Michaela had told him that O.D. had undressed G.D. down to her underwear in bed, O.D. had acted out sexually at her foster home, and O.D. had lied in family court. According to defendant, the things Michaela told him made him "very cautious" about his actions with the girls and he tried not to be alone with them. He told Michaela that O.D. was no longer welcome at his apartment. Thereafter, defendant only watched O.D. one more time. He explained that he agreed to do so because Michaela "basically begged" him to let O.D. spend the night.
The trial court admonished the jurors that defendant's testimony about what Michaela had told him about O.D. and G.D. was only admissible to show its effect on defendant and not for the truth of the matter. The court gave the same admonishment after defendant's girlfriend testified similarly to defendant, including testifying that Michaela had told her that O.D. had done "sexual things" to G.D. Defendant's girlfriend also testified that she did not believe O.D. was an honest person, explaining that she had observed O.D. lie about minor things while at defendant's apartment.
Procedural Background
In April 2017, defendant was charged by an amended information with three counts of committing a lewd and lascivious act on G.D. (Pen. Code, § 288, subd. (a)—counts one to three) and three counts of committing a lewd and lascivious act on O.D. (id., § 288, subd. (a)—counts four to six). It was also alleged that there were multiple victims (id., § 1203.066, subd. (a)(7)), and that defendant had substantial sexual conduct with a victim under the age of 14 years (id., § 1203.066, subd. (a)(8)).
A jury found defendant guilty on the charges involving G.D. (i.e., counts one to three) but found him not guilty on the charges involving O.D (i.e., counts four to six). The jury also found true the allegation that defendant had substantial sexual conduct with a victim under the age of 14 years. The trial court sentenced him to an aggregate term of seven years in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
1.0 Alleged Evidentiary Errors
Defendant contends the trial court prejudicially erred and violated his constitutional rights by excluding or admitting only for a limited purpose evidence proffered by the defense to attack the credibility of the complaining witnesses—G.D. and O.D. We disagree.
1.1 Additional Background
Prior to and during trial, the parties submitted numerous filings related to evidence the defense sought to introduce to attack the credibility of the complaining witnesses. Most of the proffered evidence was derived from confidential documents (Child Protective Services (CPS) records, counseling records) the trial court had reviewed and disclosed to the defense following defense subpoenas.
Relying primarily on Evidence Code sections 1103 and 782, the defense initially sought permission to introduce evidence showing misconduct (i.e., acts of moral turpitude—dishonesty, theft, & false accusations) and conduct of a sexual nature to attack the credibility of the complaining witnesses, including evidence to establish their knowledge about the sexual subject matter of this case from a source other than the alleged molestation by defendant. After multiple hearings, the trial court issued three separate written rulings, which collectively excluded most of the evidence the defense sought to introduce, including all evidence that was allegedly sexual in nature. The sexual conduct evidence was excluded on the ground that it was not relevant to the credibility of the complaining witnesses, as it was not sexual in nature or insufficiently similar to the conduct underlying the charged offenses, and/or because the probative value of the evidence, if any, was substantially outweighed by its prejudicial effect. The trial court ordered a section 402 hearing on the issues of O.D.'s lying and stealing.
Undesignated statutory references are to the Evidence Code.
At one of the hearings, defense counsel acknowledged that some of the proffered evidence in her section 782 motion was not sexual in nature and, as a result, asked the trial court to consider whether this evidence was admissible under section 1101, subdivisions (b) and (c) to show the complaining witnesses' knowledge of the sexual subject matter of this case.
Five days later, the defense filed another motion seeking to introduce additional evidence under section 782 for the purpose of establishing the complaining witnesses' knowledge about the sexual subject matter of this case. The defense also sought, among other things, permission to introduce "knowledge and motive" evidence to "corroborate [defendant's] denial of the accusations" of abuse, including evidence that O.D. influenced G.D. by "bullying [her] into lying, being very physically aggressive with [her], and acting out in a sexualized way with [her]."
At the outset of the hearing on the motion, the trial court indicated that it had already ruled on most of the proffered evidence set forth in defendant's motion, including the allegations that O.D. had been lying and stealing. With respect to the category of evidence that had not already been addressed, the trial court stated that the allegations O.D. was "very aggressive" and "bullying [G.D.] generally, and specifically bullying her into lying," were not governed by section 782 or section 1103. The court, however, indicated that this evidence might be admissible under section 1101, subdivision (b) and to show witness bias, and ordered a section 402 hearing so Michaela could testify about the allegations. In response to defense counsel's request to admit evidence related to O.D.'s knowledge of the sexual subject matter of this case under section 1101, subdivision (b), the trial court indicated that further briefing or a section 402 hearing would be necessary if counsel was seeking to admit evidence the court had already excluded under section 782.
Less than a week later, the defense filed a supplemental declaration requesting to present highly probative exculpatory evidence at a section 402 hearing. In that declaration, defense counsel asserted, among other things, that evidence of O.D.'s "sexualized behaviors," including her sexual behavior with G.D., was admissible under section 1101, subdivision (b) to show G.D.'s and O.D.'s knowledge of the sexual subject matter of this case, and that evidence of G.D.'s exposure to her paternal grandfather's home was admissible to show an alternate source of her "sexualized knowledge." The defense also sought permission to introduce evidence that Michaela had told defendant and his girlfriend about O.D.'s sexual behavior (including sexual things O.D. had done to G.D.), that G.D. was afraid of O.D., that O.D. had been telling G.D. to lie about things, and that O.D. might have been molested when she lived with her mother.
At the hearing on the supplemental declaration, the trial court stated that it had already ruled on some of the proffered evidence and indicated that it would hold a section 402 hearing on the allegations regarding O.D.'s bullying of G.D., O.D.'s dishonesty, and the statements Michaela allegedly made to defendant and his girlfriend about O.D.'s conduct, including O.D.'s sexual conduct and O.D. telling G.D. to lie about things. The court stated that the remaining proffered evidence was inadmissible and it would issue a written ruling to that effect.
Later that same day, Michaela testified at a section 402 hearing. Following her testimony, the trial court ruled that defense counsel could question Michaela, defendant, and defendant's girlfriend about what Michaela had allegedly told defendant and his girlfriend about O.D. and G.D., including Michaela observing O.D. and G.D. in bed together. The court, however, stated that it would instruct the jurors that they were not to consider this evidence for its truth; it was admissible only to show its effect on defendant and his girlfriend and their subsequent interactions with O.D. and G.D. The court also ruled that defense counsel could question Michaela about statements she had made to O.D.'s therapist about O.D.'s dishonesty. In response to the prosecutor's concerns regarding the admission of the statements Michaela had allegedly made to defendant and his girlfriend about O.D. and G.D., the court ordered a section 402 hearing so that it could hear testimony from defendant's girlfriend.
The next day, the prosecution filed a motion to exclude the evidence proffered by the defense related to the statements Michaela had allegedly made to defendant and his girlfriend about O.D. and G.D. On the same day, the trial court heard testimony from O.D.'s therapist and defendant's girlfriend in a section 402 hearing. The therapist testified about notes she had written between September and December 2015 that mentioned O.D.'s lying. After hearing the therapist's testimony, the trial court indicated that O.D.'s dishonesty was trivial in nature and questioned whether the statements in the therapist's notes would be admissible under section 352.
On the following day, the trial court heard more argument from the parties and, pursuant to section 402, testimony from a social worker about notes she had written during visits with O.D. and Michaela in March 2016. Defense counsel also filed another declaration seeking to admit additional evidence; specifically, testimony from defendant that Michaela had told him about certain instances of O.D.'s sexual conduct.
After further briefing, argument, and testimony from O.D.'s former foster mother and Michaela, the trial court issued several written rulings addressing the additional evidence the defense had proffered for admission and all of the evidence the defense had proffered that was allegedly sexual in nature. Thereafter, the court issued an order clarifying its rulings. Similar to the court's previous orders, the trial court excluded most of the proffered evidence the defense sought to admit, including all the evidence that was allegedly sexual in nature. To the extent the evidence proffered by the defense was found admissible, the court found that some of that evidence would be allowed only for a limited purpose. The limited purpose evidence concerned the statements Michaela had made to defendant and his girlfriend about O.D. and G.D., including O.D.'s dishonesty, O.D. telling G.D. to lie, and conduct that was allegedly sexual in nature involving O.D. and G.D. The only evidence admitted for its truth was evidence in which percipient witnesses had personal knowledge of O.D.'s acts of dishonesty.
At trial, O.D.'s former foster mother testified about O.D.'s truthfulness and instances where she had taken things which did not belong to her. When Michaela testified, she addressed a specific allegation of inappropriate sexual touching by O.D. Michaela said that O.D. never touched one of her friends in an inappropriate way, and that she never told defendant that O.D. engaged in such behavior.
During trial, the trial court denied defendant's request to reconsider its evidentiary rulings following the prosecutor's opening statements. Consistent with its pretrial rulings, the trial court instructed the jury that certain testimony about what Michaela had told defendant and his girlfriend was admitted only for the limited purpose of showing its effect on defendant and his girlfriend and not for its truth.
The trial court denied defendant's request to re-open the evidence to present previously excluded evidence in response to the prosecutor's closing argument. Prior to sentencing, the trial court denied defendant's motion for a new trial based on the trial court's erroneous exclusion of evidence proffered by the defense to attack the credibility of G.D. and O.D.
1.2 Legal Principles
"No evidence is admissible except relevant evidence." (§ 350.) Evidence is relevant if it has "any tendency in reason to prove . . . any disputed fact that is of consequence to the determination of the action." (§ 210.) "Evidence relating to the credibility of a witness is relevant evidence. [Citation.] [¶] Unless precluded by statute, any evidence is admissible to support or attack the credibility of a witness if it establishes a fact that has any tendency in reason to prove or disprove the truthfulness of the witness' testimony." (People v. Taylor (1986) 180 Cal.App.3d 622, 629.)
Evidence of prior misconduct of the victim may be admissible under section 1103. " 'As a general rule, evidence that is otherwise admissible may be introduced to prove a person's character or character trait. ([Evid. Code,] § 1100.) But, except for purposes of impeachment (see [Evid. Code,] § 1101, subd. (c)), such evidence is inadmissible when offered by the opposing party to prove the defendant's conduct on a specified occasion ([Evid. Code,] § 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act ([Evid. Code,] § 1101, subd. (b)).' [Citation.] The Evidence Code, however, establishes several exceptions to this general rule. . . . Pursuant to [Evidence Code section 1103,] subdivision (a)(1), in a criminal action, the defendant is permitted to offer evidence of the victim's 'character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct)' in order 'to prove conduct of the victim in conformity with the character or trait of character.' (Evid. Code, § 1103, subd. (a)(1).) Once the defendant has offered such evidence, the prosecution is permitted to offer its own character evidence of the victim to rebut the defendant's evidence. (Evid. Code, § 1103, subd. (a)(2).)" (People v. Fuiava (2012) 53 Cal.4th 622, 695.)
As with the admission of evidence of the victim's past conduct for impeachment purposes, the trial court retains discretion under section 352 to exclude evidence that is otherwise admissible under section 1103. (People v. Fuiava, supra, 53 Cal.4th at p. 700; People v. Gutierrez (2009) 45 Cal.4th 789, 827-828; see People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456-1457 ["even though the evidence was relevant and admissible pursuant to . . . section 1103, the trial court did not abuse its discretion by excluding the evidence because the evidence was weak on the issue of [the victim's] credibility and would require an undue consumption of time"]; People v. Shoemaker (1982) 135 Cal.App.3d 442, 448 ["[l]ike all proffered evidence, character evidence" under section 1103 "is subject to exclusion under [section 352]"].)
Section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Generally, a defendant may not question a witness who claims to be the victim of sexual assault about his or her prior sexual activity. (§ 1103, subd. (c)(1); People v. Mestas (2013) 217 Cal.App.4th 1509, 1513 (Mestas).) Section 782, however, provides an exception to this general rule. Evidence about the sexual conduct of a sex crime victim may be admissible to attack the credibility of the complaining witness when presented in conformity with the procedures under section 782. (People v. Fontana (2010) 49 Cal.4th 351, 362 (Fontana).)
"[S]ection 782 requires a defendant seeking to introduce evidence of the witness's prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevance of the proffered evidence to attack the credibility of the victim. [Citations.] The trial court is vested with broad discretion to weigh a defendant's proffered evidence, prior to its submission to the jury, 'and to resolve the conflicting interests of the complaining witness and the defendant.' [Citation.] '[T]he trial court need not even hold a hearing unless it first determines that the defendant's sworn offer of proof is sufficient.' [Citations.] [¶] If the offer of proof is sufficient, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. [Citations.] 'The defense may offer evidence of the victim's sexual conduct to attack the victim's credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in . . . section 352 are substantially outweighed by the probative value of the impeaching evidence.' [Citations.] [¶] . . . [S]ection 782 applies when the defense seeks to introduce relevant evidence of prior sexual conduct by a child." (Mestas, supra, 217 Cal.App.4th at p. 1514.)
"The Legislature's purpose in crafting these limitations is manifest and represents a valid determination that victims of sex-related offenses deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. [Citations.] By affording victims protection in most instances, these provisions also encourage victims of sex-related offenses to participate in legal proceedings against alleged offenders. [Citations.] Accordingly, our courts have properly exercised the discretion afforded by . . . section 782 'narrowly' [citation], and we emphasize that '[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness' prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a "back door" for admitting otherwise inadmissible evidence.' " (Fontana, supra, 49 Cal.4th at pp. 362-363.)
Section 782 does not permit a hearing based on "sketchy and unconfirmed allegations." (Mestas, supra, 217 Cal.App.4th at p. 1518.) A defendant's offer of proof must amount to more than "a fishing expedition" for a trial court to order a hearing. (Ibid.) The defendant must identify a specific basis for believing the victim had engaged in other sexual activity. (See Fontana, supra, 49 Cal.4th at p. 367.) The purpose of a hearing is to establish the truth and probative value of a sufficient offer of proof. (Mestas, supra, 217 Cal.App.4th at p. 1518.) If the alleged prior acts are similar to the charged crimes, evidence of the prior acts is relevant to the victim's credibility. (People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).) However, if the alleged prior acts are not sufficiently similar to the charged crimes, the evidence may be excluded under section 352 on the ground it has little probative value with respect to the victim's credibility. (Mestas, supra, 217 Cal.App.4th at p. 1517.)
In Daggett, the court discussed how a molestation victim's sexual history could be relevant: "A child's testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. [¶] In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted." (Daggett, supra, 225 Cal.App.3d at p. 757.)
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. (People v. Rowland (1992) 4 Cal.4th 238, 264.) Abuse of discretion means the court " ' "exercised its discretion in an arbitrary, capricious, or patently absurd manner," ' " resulting " ' "in a manifest miscarriage of justice." ' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) Discretion is abused if "the trial court's decision was so erroneous that it 'falls outside the bounds of reason.' " (Ibid.)
1.3 Analysis
At the outset, we note that defendant's guilt for the charged crimes was essentially a credibility contest. His guilt turned largely on whether the jury believed him or the complaining witnesses. Apparently recognizing this, the parties spent significant time litigating the admissibility of evidence the defense believed undermined the credibility of G.D. and O.D. The jury's verdict on the charges reveals that it believed G.D.'s accusations of abuse but did not believe O.D.'s accusations of abuse.
On appeal, defendant contends the trial court made numerous evidentiary errors. However, because the jury acquitted defendant on all counts involving O.D., we need not as a general matter address defendant's claims of evidentiary error involving O.D., as any error generated no prejudice. The primary exception concerns proffered evidence related to allegations that O.D. was violent toward G.D. and bullied her. According to defendant, this evidence was admissible because it supported the defense theory that O.D. had lied about defendant abusing her and bullied G.D. into falsely accusing him of abuse. We will address this claim of evidentiary error first and then turn to the remaining evidentiary errors that we must resolve to dispose of this appeal.
For purposes of clarity and to avoid repetition, we have consolidated defendant's claims of evidentiary error into categories of evidence excluded by the trial court.
1.3.1 Allegations Related to Violent Conduct and Bullying
In the trial court, the defense sought permission to introduce evidence related to G.D.'s and O.D.'s violent behavior and O.D.'s bullying behavior. The proffered evidence was as follows: (1) G.D. told a social worker in August 2015 that she and O.D. hit each other; (2) in February and March 2016 O.D.'s therapist noted that O.D. was exhibiting moderate bullying and sanction-seeking behaviors, and was aggressive and often instigating trouble with G.D.; (3) in February 2017 O.D.'s therapist noted that O.D. has a "bullying risk factor," was aggressive toward other children, and often instigated trouble with G.D.; and (4) undated notes from O.D.'s therapist stating that O.D. had "mild sexual aggression and bullying," and "moderate dangerous behaviors to others and sanction seeking behavior." The trial court excluded this evidence on the ground that it was not relevant to the credibility of O.D. or G.D. or because it was inadmissible under section 352 as it was substantially more prejudicial than probative.
We find no evidentiary error. Defendant initially contends that evidence that O.D. and G.D. hit each other was admissible for impeachment purposes, since it was violent conduct involving moral turpitude. This argument was not raised in the trial court, and therefore may not be raised for the first time on appeal. (People v. Smithey (1999) 20 Cal.4th 936, 995 (Smithey) [defendant may not argue on appeal that the trial court should have admitted evidence for reasons other than those articulated in the trial court].) In any event, the argument is without merit. The trial court did not abuse its discretion in excluding evidence that O.D. and G.D hit each other. The evidence was not relevant to their credibility on the theory that it constituted conduct involving moral turpitude. (See People v. Mansfield (1988) 200 Cal.App.3d 82, 87-88 [simple battery is not a crime of moral turpitude admissible for impeachment purposes].) But even if the evidence was relevant to their credibility as conduct involving moral turpitude, we conclude the trial court acted well within its discretion in excluding the evidence on the ground that its probative value, if any, was substantially outweighed by the probability its admission would necessitate undue consumption of time, confuse the issues, and mislead the jury. (See People v. Clark (2011) 52 Cal.4th 856, 931 [trial court has discretion under section 352 to exclude prior conduct involving moral turpitude].)
We further conclude that the trial court did not abuse its discretion in excluding the proffered evidence related to O.D.'s aggressive and bullying behavior. The proffered evidence from the notes taken by O.D.'s therapist did not show that O.D. was bullying G.D. prior to G.D.'s accusations of abuse against defendant. But even if the evidence demonstrated as much, it did not suggest that O.D. bullied G.D. into making false allegations of abuse. As such, the trial court did not err in excluding the evidence on the ground that its probative value, if any, was substantially outweighed by the probability that its admission would necessitate undue consumption of time, create substantial danger of undue prejudice, and confuse the issues.
Finally, we reject defendant's contention that evidence O.D. bullied G.D. was relevant and admissible on the theory that it constituted acts of violence involving moral turpitude. This argument was not raised in the trial court, and therefore may not be raised for the first time on appeal. (Smithey, supra, 20 Cal.4th at p. 995.) In any event, the argument is without merit. Defendant has not cited authority and provided legal analysis showing that the proffered evidence related to O.D.'s aggressive and bullying behavior demonstrated that O.D. had engaged in conduct involving moral turpitude for purposes of witness impeachment. Moreover, as discussed above, the trial court did not abuse its discretion in excluding this evidence under section 352. Contrary to defendant's contention, the proffered evidence did not have a tendency in reason to show that O.D. bullied G.D. into making false accusations of abuse. Indeed, the proffered evidence did not suggest that O.D. had bullied G.D. into lying about anything.
1.3.2 G.D.'s Postaccusation Behavioral Problems, PTSD Symptoms, and Nightmares
Posttraumatic stress disorder (PTSD).
Defendant contends the trial court erred in excluding evidence that G.D. began having behavioral problems and displaying PTSD symptoms after she made the allegations of abuse in December 2015, around the same time G.D. started having reduced visits with her father. According to defendant, this evidence was highly probative of G.D.'s credibility because it showed that she did not experience PTSD symptoms during the time the alleged abuse was happening, which supported the defense theory that her allegations were not true. Defendant further asserts that the evidence was admissible because it supported an inference that G.D.'s behavioral problems and PTSD symptoms were the result of ongoing custody issues involving her father, and not the result of any abuse by defendant. Defendant additionally contends that the trial court erred in excluding evidence that, in 2016 and 2017, G.D. was receiving counseling for nightmares about monsters, and was working on distinguishing real stories from make-believe. According to defendant, this evidence showed that G.D. was having difficulty distinguishing make-believe things from real things, which had a tendency in reason to show her allegations against him were the inability to distinguish real memories from fantasy. Finally, defendant contends that the trial court erred in excluding evidence that, in June 2016, G.D.'s nightmares were decreasing, and she had behavioral problems after visiting her father. According to defendant, this evidence was admissible because it supported an inference that G.D.'s behavioral problems and PTSD symptoms were the result of ongoing issues involving her father, and not the result of abuse by defendant.
In connection with these arguments, defendant also contends that the trial court erroneously excluded proffered evidence derived from G.D.'s therapist's notes, which made generalized references regarding G.D.'s relationship and interactions with O.D. several months after the abuse was reported. Defendant has failed to demonstrate that the trial court abused its discretion in excluding this evidence. Contrary to defendant's contention, this evidence does not suggest that O.D. bullied G.D. into making false accusations of abuse.
We conclude the trial court did not err in excluding this evidence. The trial court acted well within its discretion in determining that any probative value of the evidence was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create a substantial danger of undue prejudice and confusing the issues. Contrary to defendant's contention, the proffered evidence was not highly probative of G.D.'s credibility regarding her claims of abuse. None of the evidence indicated why G.D. was having behavioral problems, nightmares, and displaying PTSD symptoms after she made the allegations of abuse. Moreover, an exploration of the reasons why G.D. was experiencing these issues would have required the expenditure of a significant amount of time on a collateral matter and created a substantial danger of confusing the issues and misleading the jury.
We note that the prosecution represented to the trial court that it did not intend on presenting any evidence that G.D. was suffering from PTSD or arguing that any changes in her behavior were attributable to defendant's abuse.
1.3.3 G.D.'s Reports of Domestic Violence/Disputes Involving Her Father
Defendant contends the trial court erred in excluding evidence that, in February 2016, G.D. reported to her therapist that her father and his girlfriend had gotten into a physical fight, that she had witnessed a separate verbal argument between them, and that she had witnessed them physically fight in the past. Defendant further contends the trial court erred in excluding evidence that G.D.'s self-harming behavior improved after her father stopped arguing with his girlfriend in front of her.
We conclude the trial court did not err in excluding this evidence. It is undisputed that G.D.'s father and girlfriend denied engaging in any domestic violence, and there was no determination by CPS that G.D.'s allegations in this regard were false. On this record, the trial court acted well within its discretion in determining that the probative value of the proffered evidence, if any, was substantially outweighed by the probability that its admission would necessitate an undue consumption of time on a collateral matter and create a substantial danger of undue prejudice and confusing the issues. Defendant's arguments to the contrary are unpersuasive.
1.3.4 O.D. Undressing G.D. in Bed
In the trial court, defendant sought permission to introduce evidence that Michaela caught O.D. and G.D. under the covers after O.D. had undressed G.D. down to her underwear. The trial court ruled that this conduct, which may or may not have been sexual in nature, was dissimilar to the charged crimes and therefore was not relevant to the complaining witnesses' credibility to require an evidentiary hearing under section 782. The court further ruled that this evidence was inadmissible under section 352, finding that the "slim" probative value of the evidence was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create a substantial danger of undue prejudice and confusing the issues.
As defendant correctly points out, the trial court allowed this evidence to be introduced for a limited purpose—the effect it had on defendant and his girlfriend after Michaela told them about the incident.
We discern no evidentiary error. As an initial matter, we do not consider defendant's moral turpitude argument or his contention that the evidence was admissible because it showed that O.D. was a bully. These arguments were not raised below, and therefore cannot be raised for the first time on appeal. (Smithey, supra, 20 Cal.4th at p. 995.) We find no merit in defendant's remaining arguments. We fail to see how this conduct was relevant to the jury's assessment of G.D.'s credibility. Moreover, even if the evidence had some relevance to the credibility of G.D., the trial court acted well within its discretion in ruling that the evidence was inadmissible under section 352.
1.3.5 G.D.'s Father's House
In the trial court, the defense sought to admit evidence that G.D. spent time at her father's house for the purpose of showing her knowledge of the sexual subject matter of this case. The defense asserted that this evidence was admissible because Michaela had accused G.D.'s father's girlfriend of engaging in prostitution. The trial court ruled that this evidence was inadmissible, finding that it was speculative and lacked any information which would allow a determination on whether G.D. had been exposed to conduct of a sexual nature that was similar to the charged crimes.
We find no error in the trial court's ruling. Defendant has made no showing that the trial court abused its discretion. Contrary to defendant's contention, there is nothing in the record suggesting that the proffered evidence was relevant on the issue of G.D.'s credibility.
1.3.6 O.D.'s Alleged Sexual Behavior with G.D.
Defendant contends that the trial court erred in excluding evidence that Michaela had told defendant and his girlfriend that O.D. had kissed and fondled G.D. and had done "sexual things" to G.D. in the bath. We disagree.
The trial court allowed this evidence to be introduced for a limited purpose—the effect it had on defendant and his girlfriend after Michaela told them about the incident.
Among other things, the trial court found that this evidence had little probative value, as it was dissimilar to the underlying conduct giving rise to the charged crimes, and that any probative value of the evidence was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create a substantial danger of undue prejudice and confusing the issues. The trial court acted well within its discretion in excluding this evidence. We do not reach defendant's moral turpitude argument because it was not raised below. (Smithey, supra, 20 Cal.4th at p. 995.)
1.3.7 G.D.'s Exposure to Her Paternal Grandparents' Home
Defendant contends the trial court erred in excluding evidence that G.D. was exposed to pornography at her paternal grandparents' house, and evidence that other children had accused the grandparents of molestation. We disagree.
In the trial court, the defense proffered evidence that a witness saw pornography being played at the grandparents' house on several occasions while children were present, and that the same witness recorded other "grandchildren" who said that the grandparents had "touched their privates." The defense asserted that this evidence was relevant to show G.D.'s knowledge of the sexual subject matter of this case. The parties agree that the trial court did not specifically address this issue in any of its written rulings. However, the record reflects that the trial court generally ruled that the evidence was inadmissible.
We conclude that defendant has failed to carry his burden to show evidentiary error. The proffered evidence does not indicate G.D. was present when the pornographic movies were playing, and there was no evidence that G.D. was molested by her paternal grandparents or was otherwise exposed to sexual material similar to the underlying conduct giving rise to the charges in this case. The proffered evidence, therefore, was not relevant to G.D.'s credibility. Moreover, the probative value of the evidence, if any, was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create a substantial danger of confusing the issues.
1.3.8 Allegation O.D. Told G.D. to Lie About Things
In the trial court, the defense sought to introduce evidence that Michaela had told defendant's girlfriend that O.D. was telling G.D. to "lie about things" right before the allegations of abuse were made. At the section 402 hearing on this proffered evidence, Michaela testified that she did not remember saying this to defendant's girlfriend. When the girlfriend testified, she said that Michaela did not tell her that O.D. was telling G.D. to "lie about things" but rather that she overheard O.D. tell G.D. to "lie about stuff." The girlfriend further testified that O.D. tried to persuade G.D. to lie about "trivial things," not "sexual things." The trial court excluded the proffered evidence under section 352.
We find no error. The proffered evidence did not indicate that O.D. successfully persuaded G.D. to lie about anything. The testimony at the evidentiary hearing indicated that O.D. had attempted to persuade G.D. into lying about "trivial things." On this record, we conclude the trial court acted well within its discretion in excluding this evidence. The evidence had, at best, minimal relevance to G.D.'s credibility regarding her accusations of abuse. Moreover, the probative value of the evidence, if any, was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create a substantial danger of confusing the issues.
1.3.9 Remaining Issues
Defendant insists that, even though the jury found him not guilty on all charges related to O.D., we must still consider the propriety of the trial court's rulings with respect to the proffered evidence related to O.D. that was allegedly sexual in nature. According to defendant, this evidence was relevant to G.D.'s credibility because it supported the inference that she could have learned about the sexual subject matter of that evidence from O.D., since there was evidence O.D. and G.D. discussed their allegations against him. We disagree. None of the evidence proffered by the defense in the trial court suggested G.D. learned anything from O.D. which was sexual in nature that would inform the jury that some of her testimony in this case may be false. We have reviewed the relevant portions of the record and agree with the trial court that the proffered evidence related to O.D., which was allegedly sexual in nature, was not sufficiently similar to the underlying conduct giving rise to charges in this case to be probative of O.D.'s credibility. Therefore, it logically follows that the proffered evidence was not probative of G.D.'s credibility.
Finally, we reject defendant's contention that the trial court's erroneous evidentiary rulings under state law violated his federal constitutional rights. Defendant's claim fails because we have concluded that the trial court did not err under state law. (People v. Abilez (2007) 41 Cal.4th 472, 503; People v. Robinson (2005) 37 Cal.4th 592, 626-627 ["There was no error under state law, and we have long observed that, '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense.' "].)
2.0 Alleged Prosecutorial Misconduct
Defendant contends that reversal is required due to prejudicial prosecutorial misconduct during closing argument and rebuttal closing argument that violated his constitutional rights. According to defendant, the prosecutor committed misconduct by "disingenuously" arguing that G.D. and O.D. could not have known about the sexual subject matter in this case unless their allegations of abuse were true and that O.D. had lied only about insignificant things when the prosecutor knew that evidence to refute these arguments existed but had been excluded by the trial court. Recognizing that his claim of error may have been forfeited for failure to object in the trial court and request an admonition, defendant argues that he was not required to object to preserve the claim for appeal because any objection would have been futile. Alternatively, he argues that trial counsel rendered ineffective assistance by failing to object. Because we reject defendant's prosecutorial misconduct claim on the merits, we do not reach defendant's arguments regarding futility and ineffective assistance of counsel.
2.1 Applicable Legal Principles
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Williams (2013) 56 Cal.4th 630, 671.)
2.2 Analysis
As an initial matter, we need not reach the merits of defendant's prosecutorial misconduct claim as it pertains to O.D. Even assuming the complained-of remarks the prosecutor made about O.D. constituted misconduct, such misconduct did not prejudice defendant because he was acquitted of all charges related to her. As for the prosecutor's remarks about G.D., we conclude the prosecutor did not engage in misconduct during closing argument or rebuttal closing argument. The complained-of remarks made by the prosecutor "were founded on evidence in the record and fell within the permissible bounds of argument." (People v. Williams, supra, 56 Cal.4th at p. 672.) " ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Jackson (2016) 1 Cal.5th 269, 368.) Here, the prosecutor discussed the specific statements G.D. made about defendant's molestation during closing argument and rebuttal closing argument, including the details she gave about the molestation and the specific description she gave about defendant's penis and what came out of it, and then argued his interpretation of the evidence, urging the jury to conclude that she was telling the truth based on the intimate details she gave about the abuse and her young age. This prosecutor's reference to the age of G.D. as a basis to find her credible was a fair comment on the evidence and did not mislead the jury, as there was no evidence presented suggesting that she had prior knowledge about the specific sexual matter she reported. It was not misleading or otherwise improper for the prosecutor to urge the jury to infer that G.D. was telling the truth based on her young age. This was a reasonable inference to draw under the circumstances of this case and fell within the range of permissible argument. (People v. Williams, supra, 56 Cal.4th at p. 674.) The fatal flaw in defendant's argument is that it assumes the trial court erred in excluding or admitting for a limited purpose certain evidence related to G.D.'s alleged sexual conduct and knowledge. As we explained above, the trial court did not err in excluding this evidence.
3.0 Cumulative Error
Because we have rejected all of the claims of error related to G.D. on the merits, we likewise reject defendant's contention that the cumulative effect of the trial court's errors requires reversal. (People v. Cook (2006) 39 Cal.4th 566, 608.)
4.0 Subpoenaed Records
Defendant asks us to independently review subpoenaed confidential records (school, counseling, CPS) pertaining to G.D. and O.D.—reviewed by the trial court in camera—to determine whether the court erred in concluding that portions of those records were not discoverable by the defense. The People do not oppose this request.
Under the procedure set forth in Penal Code section 1326, when, as here, a criminal defendant has subpoenaed confidential records of a nonparty, "the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (Pen. Code, § 1326, subd. (c).) Upon request, an appellate court's role is to review the confidential records that were not disclosed by the trial court "to determine whether they were material and should have been disclosed." (People v. Martinez (2009) 47 Cal.4th 399, 453.) " ' "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." ' [Citations.] We also consider the effect of nondisclosure on the investigations conducted by counsel and on counsel's trial strategy." (Id. at pp. 453-454.)
Having reviewed the confidential records that were not disclosed by the trial court, we conclude that the undisclosed records do not contain any evidence material to the defense. Therefore, we find no error in the trial court's decision not to disclose the records to the defense.
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
MURRAY, J.