Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C157408
Bruiniers, J.
A jury convicted appellant Marquez B. Briggs of oral copulation by force in concert (Pen. Code, § 288a, subd. (d)) (count 1), sodomy by force in concert (§ 286, subd. (d)) (count 2), and carjacking (§ 215, subd. (a)) (count 3), and found true all enhancement allegations. Briggs contends the trial court violated his Sixth Amendment right to confront the witnesses against him by erroneously excluding impeachment evidence regarding the victim. Briggs further argues the trial court violated his right of confrontation and right to present a defense by improperly limiting cross-examination of an expert witness for the prosecution. We reject these arguments and affirm.
All further references are to the Penal Code unless otherwise indicated.
I. Background
Briggs was charged on January 17, 2008, with oral copulation by acting in concert with force (§ 288a, subd. (d)) (count 1); sodomy by acting in concert with force (§ 286, subd. (d)) (count 2); and carjacking (§ 215, subd. (a)) (count 3). As to counts 1 and 2, it was alleged that Briggs kidnapped the victim (§ 667.61, subd. (d)(2)), and personally used a firearm (§§ 667.61, subd. (e)(4); 12022, subd. (b); 12022.3; 12022.5; 12022.53, subd. (b)). With respect to the carjacking count, it was alleged that a principal was armed with a firearm and that Briggs personally used a firearm (§§ 12022, subd. (a)(1); 12022.5, subd. (a); 12022.53, subd. (b)). Additionally, Briggs was alleged to have a prior conviction for sale/transport/offer to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)) for which he served a prior separate prison term (§ 667.5, subd. (b)). An amended information filed on March 11, 2008, also alleged Briggs had a prior conviction for unlawful sexual intercourse (§ 261.5, subd. (d)), for which he served a prior separate prison term (§ 667.5, subd. (b)).
A. Prosecution Evidence
The victim, John Doe testified he was 40 years old and had moved to the United States from Mexico in 1996. In August 2004, John Doe was living with his teenage son. John Doe’s primary language was Spanish, and he could speak and read a little English.
The victim was referred to as “John Doe” throughout the trial court proceedings, and therefore we continue to use the pseudonym in this appeal.
John Doe testified at trial through the use of a Spanish-speaking interpreter.
At approximately 10:00 or 11:00 p.m. on August 21, 2004, John Doe went to listen to ranchera music at Fandango Latino, a Latino nightclub on San Leandro Street in Oakland. He parked his truck on the street a block away from the club because the parking lot was full. John Doe sat at a table by himself and consumed about six beers from the time he arrived until he left the club at approximately 1:00 or 1:30 a.m.
Upon leaving, John Doe went to his truck and opened the passenger door to smoke a cigarette. He then went around to the driver’s side and as he opened the door, he saw two African-American males approaching him. The tall, slender male was carrying a.45 caliber or 9 millimeter handgun in his hand. The other individual was shorter and heavyset. The armed male pointed the gun to John Doe’s head.
The men called John Doe “scrap,” cursed, and threatened him. They entered John Doe’s truck and pulled John Doe inside. The thin man sat next to John Doe, and the heavier man was on the passenger side. Once all three men were in the truck, the assailants told John Doe “go, go,” and John Doe began driving the truck. John Doe saw a patrol car and sped up so the police car would follow him, but the men had John Doe turn onto a different street and the police car continued away from them. The men pointed the gun at John Doe while he drove. The men directed John Doe to stop the truck by railroad tracks and then blindfolded him. They forced John Doe to sit in the middle of the truck bench seat, and the thin man began driving. The men were speaking in English and John Doe could not understand most of what they were saying.
When the truck stopped, the men pulled John Doe out of the vehicle. The men forced John Doe to kneel down and commanded him to orally copulate the slender man’s penis while they held a gun above his head. John Doe complied because he felt his life was in danger. John Doe was able to recover his truck keys from the thin man’s pocket without his assailants noticing during the forced oral copulation. When the oral copulation stopped, the men forced John Doe to lower his pants and they pushed him forward onto his hands and knees. John Doe told them, “Don’t shoot. Don’t shoot.” John Doe heard the thin man spit, and then felt moisture when the thin man put his hand on John Doe’s anus. The thin man first used his fingers, and then his penis, to penetrate John Doe’s anus. John Doe could hear the men talking, mocking him, and laughing while he was being raped. The penetration stopped because John Doe defecated on the assailant. The thin man became angry and John Doe offered to clean his assailant out of fear of being shot. When the thin man turned away from John Doe to begin cleaning himself, John Doe stood up, took his blindfold off and began running down Foothill Boulevard. John Doe recognized a school and a store as he was running, and he looked for a patrol car to ask for help. John Doe lost consciousness while running away.
When he awoke, John Doe saw police officers and an ambulance. John Doe testified he told the paramedics and police what had happened to him. He was taken to Highland Hospital in the ambulance.
Thomas Lo, a paramedic for American Medical Response, responded to a call in the area of 1627 Foothill Boulevard at around 4:00 a.m. on August 22, 2004. He found John Doe lying face down in the roadway in the middle of the block. A neighborhood resident who was present at the scene indicated she had called and was concerned the victim had been hit by a car. Lo did not discover any obvious injuries during his examination of John Doe, who had a wallet with identification indicating he was a police officer in Mexico. John Doe was upset and hysterical, answering some questions but not others. He stated he had been raped by two men, mentioned a gun, and the Fandango nightclub. In his report, Lo wrote “inconsistent story” because John Doe answered only some of the questions the paramedics and responding police officers asked him, and Lo testified “it just didn’t seem that we could figure out what happened to him.” Lo assessed John Doe as having an altered state of consciousness and testified that he had detected alcohol on John Doe’s breath. Lo and his partner transported John Doe to Highland Hospital in the ambulance.
Before moving to the United States John Doe had been a police officer.
Lauri Paolinetti, a physician’s assistant at Highland Hospital, testified as an expert in sexual assault exams. Paolinetti conducted a sexual assault exam on John Doe when he was taken to Highland Hospital on August 22, 2004. In her report, she stated John Doe appeared “[t]earful, distraught, tre[m]bling, anxious.” She testified John Doe stated he did not consume any alcohol within 12 hours prior to the assault, but that he had used drugs within 96 hours prior to the assault. John Doe described the assault to Paolinetti, and complained of head, abdominal, and rectal pain. Paolinetti found dried secretions on John Doe’s right hand and took samples of them. She also found “[m]ultiple fissured lesions at 9 o’clock at anal verge. Tender. Oozing blood.” Paolinetti examined John Doe with an anoscope and noted, “[a]noscopy distal 1 centimeter 1 rectal wall with oozing 1 centimeter to 2 centimeter, abrasion slash fissure. Exam difficult secondary to pain. Unable to insert anoscope fully.” She collected two oral swabs, two anal swabs, and four penile swabs from John Doe. She concluded the results of the examination were consistent with nonconsensual rectal penetration.
Oakland police officer Jesse Grant testified that he was assigned John Doe’s case on August 26, 2004, while working as an investigator in the special victims unit. He reviewed the police report prepared by the officer who interviewed John Doe at the hospital. On September 2, 2004, Grant contacted John Doe over the phone. John Doe told Grant he did not want to pursue the case because “the incident had been extremely painful for him and he just wanted to let it lie from there.” Grant testified he had only a general description of the assailants: their height, weight, and race. He submitted the sexual assault kit taken from the victim for processing by the crime lab. He did not conduct any additional investigation at that time because of John Doe’s reluctance to pursue the case and lack of suspects.
On January 5, 2005, Ines Iglesias-Lee a criminalist at the Oakland Police Department crime laboratory, retrieved the sexual assault kit samples collected from John Doe. The first sample she analyzed was a rectal swab. She conducted a test for acid phosphatase which is an enzyme found in high concentrations in semen and in lower concentrations in other bodily fluids. This presumptive test resulted in “a low amount of reaction which may or may not indicate the possible presence of semen.” She was not able to confirm the presence of blood on the rectal swab because one of the two color tests was negative. Iglesias-Lee next examined two urethral meatus swabs, which she tested for the presence of acid phosphatase. One of the swabs tested negative, and the second swab gave a low or slow positive result. Acid phosphatase tests on two penal swabs resulted in a negative result for one swab and a slow reaction for the presence of semen on the second swab. Iglesias-Lee conducted a differential extraction on a rectal swab and found there were epithelial cells and sperm cells present. She then developed DNA profiles from both sperm and epithelial cells. Both types of cells had come from males. The DNA profile of the epithelial cells was concordant with the DNA profile of the victim, i.e. there was a match at the locations of the DNA analyzed. Iglesias-Lee also examined swabs taken from the victim’s right hand, and found epithelial and sperm cells. Tests on the epithelial cell fraction showed there were cells from two or more people. The sperm fraction from the swab typed as a mixture of no more than two people, and the major portion of the mixture was concordant to the DNA profile from the sperm fraction of the rectal swab. The DNA profile of the sperm cells was different from the victim’s DNA profile, and Iglesias-Lee eliminated the victim as a possible contributor to the sperm cells found.
Epithelial cells are found in the body’s orifices.
On May 18, 2005, Iglesias-Lee entered the DNA profile from the sperm cell fractions into the Combined DNA Indexing System (CODIS) database. On July 22, 2005, Iglesias-Lee received a report of a “hit” on that DNA profile from the California Department of Justice DNA laboratory in Richmond, indicating that it corresponded with Briggs’s DNA profile. Iglesias-Lee compared the profiled hit the Department of Justice provided with the evidence DNA profile and noted that the types were concordant. She then requested officer Grant to obtain a DNA sample from Briggs for verification.
CODIS is a repository of DNA profiles from evidence obtained from cases that can be searched against other profiles. The database also contains samples from individuals, including persons with previous criminal histories.
In May 2006, Grant reopened the case because he received the report from the Crime Lab naming Briggs as a potential suspect. Grant contacted John Doe and, with a Spanish-speaking officer, on May 26 obtained a statement from John Doe and examined John Doe’s truck. Grant went with John Doe to the Fandango club, and John Doe was able to go to a location on East 20th Street and find the driveway alongside a house where the sexual assault occurred.
On November 14, 2006, Grant interviewed Briggs, who gave a taped statement. Grant obtained a search warrant authorizing the taking of a DNA sample from Briggs. Briggs was uncooperative and resistive, but the officers were able to get a sample from the inside of his cheek.
Iglesias-Lee was presented by the prosecution as an expert in the fields of forensic biology and DNA analysis. She testified that on November 28, 2006, Iglesias-Lee received a biological reference kit from Briggs. She developed Briggs’s DNA profile from the saliva samples provided, and compared that profile to the unknown sperm DNA profile she had generated earlier. From this comparison, she could not exclude Briggs as being the source of the sperm cells found in the rectal and hand swabs of the case. Over defense objection that the testimony exceeded the scope of her expertise, Iglesias-Lee testified as to the statistical significance of the DNA profile generated from the sperm cell fraction. Iglesias-Lee utilized a computer program created by the FBI called Pop Stats which is an element of the CODIS program, and which calculates the statistical frequency of a particular DNA profile. The analysis showed the DNA profile of the semen cell fraction obtained from the evidentiary samples occurs in less than 1 out of 1.5 trillion members of the Caucasian, African-American, Southwest Hispanic, and Southeast Hispanic populations, compared to a current world population of approximately 6.5 billion. She further testified it was highly unlikely that DNA profile would be found by chance in another person.
John Doe identified Briggs as his assailant at trial, stating he was 70 to 80 percent certain Briggs was the thin assailant.
B. Defense Case
The defense called Oakland police officer Phong Tran to testify. Tran interviewed John Doe in the morning of August 22, 2004, at Highland Hospital. John Doe reported he was assaulted by two African-American males after leaving the Fandango nightclub. John Doe told the officer that after he was assaulted he ran back to the club for help and someone at the club called 911. John Doe told Tran that he did not know whether the assailants had taken his truck. Tran wrote John Doe’s statement and John Doe signed it. Tran obtained authorization for a sexual assault examination, and then went to the Fandango club to try to locate John Doe’s truck and any witnesses. He did not find the truck and the club was closed.
A few days after the assault, a friend told John Doe that the friend had seen John Doe’s truck near a school. John Doe retrieved the truck, and informed the police he had recovered it.
Defense investigator Dean Stannard testified there are multiple routes from the Fandango club to the driveway on East 20th Street where John Doe was assaulted, and the route Stannard drove between the two locations took him 16 minutes. On cross-examination, Stannard acknowledged he was not aware which route John Doe and his assailants took. Stannard also testified that paramedics found John Doe six-tenths of a mile from where he lived at the time.
C. Verdict and Sentencing
On March 25, 2008, the jury convicted Briggs of all three charged counts, and found true the enhancement allegations. The prosecution then dismissed the prior conviction and prison term allegations, which had been bifurcated. Briggs filed a motion for new trial arguing, inter alia, that the court improperly excluded evidence showing John Doe received immigration assistance in consideration for his testimony, and that the trial court inappropriately limited cross-examination of Iglesias-Lee regarding the FBI’s methodology in selecting or controlling the persons from whom all statistical data was based and the frequency data extrapolated. On April 22, 2008, the trial court denied the motion and sentenced Briggs to 45 years 8 months to life. This timely appeal follows.
II. Discussion
A. Cross-Examination of John Doe
Briggs filed a motion in limine asking for permission to examine John Doe, an undocumented Mexican national, on the issue of bias arising from purported offers by investigating officers to assist him in qualifying for United States residency. The prosecution had previously moved in limine to exclude evidence of John Doe’s immigration status under Evidence Code section 352. At the initial hearing on the defense motions, defense counsel represented that during a taped interview of John Doe in 2006, one of the investigating officers had given John Doe papers to help him qualify for residency and had told John Doe that being the victim of a crime could help him in establishing residency. Based on the defense offer of proof, the trial court indicated that it would allow the defense to question John Doe on whether the officers told him being the victim of a crime could help him qualify for residency and whether John Doe had obtained any favors from the officers.
The prosecutor later asked the court to reconsider its earlier rulings. The prosecutor explained that she had since reviewed the tape of the interview, and that defense counsel’s offer of proof was not entirely accurate, particularly as to the context of the statements attributed to the police officers. She provided what were represented as verbatim excerpts of the statements. After providing officers his account of the circumstances of the attack, John Doe stated, “You know I don’t have any papers here so I’m scared it will affect me.” One of the officers responded, “You don’t need to worry about that.” An officer said, “I have assisted people in the past... I have signed papers for immigration assistance and they can actually qualify for residentship [sic].” Grant then stated, “Oh, yeah, definitely being the victim of crime.” After that colloquy, John Doe and the officers discussed a different topic.
So far as we can determine, neither the tape of the interview nor a transcript of the tape were provided to the trial court or entered into evidence below. However, defense counsel did not dispute the accuracy of the statements quoted by the prosecution. We therefore assume them to be correct.
The trial court observed that the prosecution’s description of the conversation differed from statements defense counsel had attributed to the officers, and ruled that the inquiry requested by the defense would not be permitted. The court found that the statements were irrelevant, since they occurred two years after John Doe’s initial report of the incident, and only following the victim’s description of the circumstances of the assault.
“That is not the context you explained to me, (counsel). That is not how you said it happened.”
The following day defense counsel again sought permission to question John Doe about his immigration status. She contended that John Doe’s willingness to pursue prosecution in 2006, after his reluctance to do so in 2004, was in response to police providing him with “papers to help his immigration status to obtain residency” and that the inquiry was therefore relevant to show his “bias and motive.” The trial court again denied the defense’s request, finding the line of questioning irrelevant because the context of the interview and the circumstances under which discussion of immigration issues occurred were “totally different” than represented by the defense.
After return of the jury verdicts, Briggs filed a motion for new trial, arguing inter alia that the trial court should have allowed him to cross-examine John Doe regarding his immigration status and any benefits he may have received for his cooperation in the prosecution. The prosecution response denied that John Doe had obtained any assistance in obtaining citizenship or that he received any other benefits or compensation in exchange for his testimony, and also asserted that the Oakland Police Department did not provide any “papers,” promises, or assistance to John Doe in order to obtain a statement from him. The trial court denied Briggs’s motion.
On appeal, Briggs contends the court’s exclusion of the proffered evidence was erroneous because the evidence was probative of John Doe’s motive in testifying against him. Under federal immigration regulations (8 C.F.R. § 214.14), an illegal alien who is the victim of certain criminal offenses, including rape or sexual abuse, can apply for a “U-Visa” providing temporary relief from deportation, and acquire temporary non-immigrant legal status if local law enforcement authorities certify that the alien would be of assistance in an investigation or prosecution. Briggs argues that the officers’ comments imply they were promising to help John Doe obtain a U-Visa and remain in the United States if he testified and they could do this by signing some immigration papers. Briggs further maintains these comments also imply the officers may, in fact, have helped John Doe by signing papers. Briggs asserts that the exclusion of the proffered testimony was erroneous and violated his right of confrontation. Respondent (the State) rejoins that the proffered evidence was irrelevant, and further that Briggs’s constitutional claim is forfeited and fails on the merits. We conclude the trial court’s ruling was not an abuse of discretion and did not violate Briggs’s right of confrontation.
1. Relevance
Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “ ‘The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 444, citation omissions in original.) “The test of relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.]” (People v. Scheid (1997) 16 Cal.4th 1, 13, final citation omission added; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1117, disapproved in part on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) We review a trial court’s ruling on the admissibility of evidence for abuse of discretion. (Guerra, at p. 1113.) “Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Ibid.) “When the trial court excludes relevant, admissible evidence over the defendant’s objection, the proper standard of review is whether there is a reasonable probability that there would have been a different result had the evidence been admitted. [Citations.]” (People v. Hustead (1999) 74 Cal.App.4th 410, 422 (Hustead).)
As Briggs argues, bias on the part of a witness is a statutory basis for cross-examination. (Evid. Code, § 780, subd. (f).) Further, “[a]s a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidence is suggestive of bias. [Citations.]” (People v. Brown (2003) 31 Cal.4th 518, 544.) Although “ ‘[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude’ [citation], such latitude does not ‘prevent the trial court from imposing reasonable limits on defense counsel’s inquiry based on concerns about harassment, confusion of the issues, or relevance.’ [Citations.]” (Id. at 545, only citation omissions added.)
We agree with the trial court that the proffered evidence was irrelevant and therefore inadmissible. Evidence is irrelevant if it invites speculation: “ ‘[i]f the inference of the existence or nonexistence of a disputed fact which is to be drawn from proffered evidence is based on speculation, conjecture, or surmise, the proffered evidence cannot be considered relevant evidence.’ ” (People v. Louie (1984) 158 Cal.App.3d Supp. 28, Supp. 47, italics omitted.)
While Briggs argues that suggestions that the officers could assist John Doe with his immigration status served as an inducement for his cooperation with police, as the trial court noted, it was only after John Doe gave his second statement to the officers that he raised concerns about possible immigration consequences. Briggs contends the trial court was incorrect in basing its ruling on the fact John Doe’s immigration status was not discussed until after he gave his statement. He argues that John Doe could not have been compelled to testify under Code of Civil Procedure section 1219, and therefore a promised benefit was relevant to why John Doe testified at trial at all. He argues that if John Doe had not testified at trial, Crawford v. Washington (2004) 541 U.S. 36 would have precluded the prosecution from introducing John Doe’s statement, and therefore, “the U-Visa remedy is set up to force the alien to testify and do his best to get a defendant convicted.”
This argument is unpersuasive. Code of Civil Procedure section 1219, subdivision (b) provides that “no court may imprison or otherwise confine or place in custody the victim of a sexual assault... for contempt when the contempt consists of refusing to testify concerning that sexual assault....” The statute does not prohibit the court from imposing other sanctions against a witness for failure to testify. In addition, Briggs’s argument that the U-Visa “forces” an alien to testify is incorrect. To be sure, it gives an incentive for an alien to testify and cooperate with a prosecution, but does not require him to do so. More importantly, as discussed above, there is no indication in the record that the officers or prosecutor actually promised, or in fact assisted John Doe with his immigration status.
The record indicates the discussion between the officers and John Doe regarding this topic was brief. The officers simply told John Doe of the possibility of immigration relief because he was a crime victim, and one officer recounted that in the past he signed papers to assist people in qualifying for United States residency. On this record, the inference that Briggs sought to present to the jury—that John Doe had a bias because he was promised or received immigration assistance—was based on mere speculation. Notwithstanding Briggs’s claim to the contrary, the record does not indicate that the officers promised John Doe immigration assistance, that they did in fact provide such assistance, or that John Doe expected them to do so.
Briggs contends the trial court’s reliance on the timing of the discussion regarding John Doe’s immigration status was erroneous for the additional reason that the court’s rationale would eliminate any prosecutorial duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) to disclose benefits promised or bestowed to a witness. Briggs contends that under the trial court’s reasoning, the prosecution could easily avoid its disclosure requirements because it “could almost always point to a statement the witness made to law enforcement reciting the desired testimony before any benefit was made or promised[.]” In support, Briggs cites Giglio v. United States (1972) 405 U.S. 150 (Giglio) and People v. Kasim (1997) 56 Cal.App.4th 1360 (Kasim). Those cases fail to support Briggs’s claim.
In Giglio, FBI agents obtained a statement from petitioner’s alleged coconspirator in which he confessed to a scheme he had with petitioner to forge money orders and process them. A prosecutor promised petitioner’s coconspirator that he would not be prosecuted if he testified before the grand jury and at trial. That prosecutor presented the case to the grand jury but a different prosecutor took over the case for trial. At trial, defense counsel sought to impeach the coconspirator’s testimony by asking him about possible agreements or arrangements for prosecutorial leniency. The coconspirator denied any such arrangements or deals, and the prosecutor, apparently unaware of the other prosecutor’s arrangement with the coconspirator, stated in summation that the coconspirator received no promises for his testimony. The United States Supreme Court found reversible error under Brady, Napue v. Illinois (1959) 360 U.S. 264, and the due process clause, and held the promise of the first prosecutor had to be attributed to the government. (Giglio, supra, 405 U.S. 150 at pp. 151–155.)
In Kasim, the prosecutor suppressed material exculpatory evidence about the credibility of two important prosecution witnesses, one of whom was the only one to have personal knowledge of defendant’s involvement in the crime and to have witnessed commission of the crime. Both before and during the trial, the defense made repeated discovery requests for information regarding promises, inducements, and threats regarding those witnesses. The prosecutor represented there were no deals, and at trial the witnesses testified “that no deals had been made for their testimony other than that they would be charged and the district attorney’s office would be fair.” After trial, the defense counsel learned those witnesses had received numerous benefits, and that the prosecutor had assisted one of the witnesses avoid deportation. The appellate court reversed the defendant’s conviction, holding the prosecutor’s failure to disclose evidence regarding benefits the witnesses received constituted prosecutorial misconduct and a due process violation under Brady. The court concluded the suppressed exculpatory evidence was material because the witnesses were of paramount importance to the prosecution’s case and the results of the trial depended in large part on the witnesses’ credibility. (Kasim, supra, 56 Cal.App.4th at pp. 1367–1369, 1372–1373, 1382–1384.)
Both Giglio and Kasim address situations in which it was established that the witnesses had undisclosed agreements with the prosecution and that benefits were given to the witnesses. (Giglio, supra, 405 U.S. 150 at pp. 151–152 & fn. 2; Kasim, supra, 56 Cal.App.4th at p. 1381.) On this basis the defendants had demonstrated a Brady violation. (Giglio, at p. 153–155; Kasim, at pp. 1382–1384.)
In contrast, the record here does not support a finding the prosecution withheld evidence regarding John Doe’s immigration status or any benefits he may have received. The People denied that John Doe received any consideration. Briggs’s claim that John Doe was necessarily promised or received immigration assistance in return for his testimony is based on speculation and a mischaracterization of the record. The record indicates only that the officers told John Doe not to worry about his immigration status because as a crime victim he would be eligible for assistance. One officer indicated that in the past he had signed papers so people could qualify for residency. This exchange does not compel the conclusion Briggs advocates, which is that the officers then promised or did, in fact, help John Doe obtain residency. Under Brady, mere conjecture that there may have been favorable, material evidence, which was undisclosed, is insufficient to demonstrate a due process violation. (See U.S. v. Mitchell (7th Cir. 1999) 178 F.3d 904, 908 [noting that “ ‘[m]ere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial’ ”]; U.S. v. Navarro (7th Cir. 1984) 737 F.2d 625, 631 [same]; U.S. v. Pou (8th Cir. 1992) 953 F.2d 363, 366–67 [same].) We conclude such conjecture is also insufficient to establish error in limiting cross-examination. Accordingly, Briggs’s reliance on Brady, Giglio, and Kasim is unavailing.
Briggs complains that this representation was not made under penalty of perjury. Briggs cites no authority for the suggestion that a prosecutor must verify his/her compliance with Brady disclosure obligations under penalty of perjury. The disclaimer of promises or benefit to the victim is nevertheless a representation made by an officer of the court, who has a duty of honesty and candor. (Rules Prof. Conduct, rule 5-200; Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82, fn. 9.)
Briggs also suggests John Doe must have received immigration assistance because the police interviewed him in 2006 and the trial did not begin until March 2008, “which suggests that [John Doe] was successful in staying in the United States until the trial.” Briggs does not point to any evidence in the record to support his suggestion that John Doe’s immigration status had changed between the time of the interview and trial, or that John Doe was able to remain in the United States as a result of assistance from the prosecutor or law enforcement.
Under these circumstances, particularly on the limited and contradictory offer of proof made by Briggs, the trial court did not abuse its discretion in excluding the evidence. There was no evidence that any statements made by the officers served as an inducement for the victim’s cooperation, and not even an offer of proof was made that actual assistance or benefits of any sort were actually provided to John Doe. (See People v. Dyer (1988) 45 Cal.3d 26, 50 [absent proof of some agreement furnishing possible bias or motive to testify, fact that witnesses were charged with unrelated offenses was irrelevant where the charges were dismissed or reduced prior to testifying]; People v. Gallego (1990) 52 Cal.3d 115, 197 [preventing defendant from conducting “fishing expedition” not an abuse of discretion where no independent basis to believe good cause existed].)
Moreover, even if the trial court erred in precluding Briggs from questioning John Doe regarding his immigration status and benefits promised or given, the error was not prejudicial. As discussed below, Briggs was afforded ample opportunity to test John Doe’s credibility. Further, the DNA evidence directly linked Briggs to the crime. Accordingly, on this record, it is “not reasonably probable that a result more favorable to [appellant] would have been reached” if the proffered evidence had been admitted. (See People v. Watson (1956) 46 Cal.2d 818, 836; Hustead, supra, 74 Cal.App.4th at p. 422.)
2. Confrontation
Preliminarily, we disagree with the State’s contention that Briggs’s constitutional claim is forfeited. Briggs’s motion in limine cited various cases which analyze the constitutional issues he raises regarding John Doe’s cross-examination. We find these citations sufficient to preserve the claim for appeal. Nevertheless, Briggs’s claim fails on the merits.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to confront the prosecution’s witnesses. (Davis v. Alaska (1974) 415 U.S. 308, 315.) “The object of the confrontation clause is to ‘ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ ” (People v. Cooper (2007) 148 Cal.App.4th 731, 740 [quoting Maryland v. Craig (1990) 497 U.S. 836, 845].) The right of cross-examination includes exploration of bias and ulterior motives of the witness. (Davis, at p. 316.) “ ‘Evidence showing a witness’s bias or prejudice or which goes to his credibility, veracity or motive may be elicited during cross-examination.’ [Citation.]” (People v. Carpenter (1999) 21 Cal.4th 1016, 1054 (Carpenter).) “ ‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, “to expose the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.” ’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 946 (Frye), only citation omission added, disapproved in part on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
However, “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. [Citation.]” (Chambers v. Mississippi (1973) 410 U.S. 284, 295; accord, Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138–1139.) Trial judges retain wide discretion under the confrontation clause to impose reasonable limits on cross-examination based on concerns such as “harassment, prejudice, confusion of the issues,... or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall); Carpenter, supra, 21 Cal.4th at p. 1051.) “California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ (Van Arsdall, supra, 475 U.S. at p. 680[]), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (Frye, supra,18 Cal.4th at p. 946, bracketed material in last two instances added.)
Briggs relies on numerous authorities to underscore the importance of cross-examining critical prosecutorial witnesses on matters bearing on their credibility. He contends that in a sex offense case, where the credibility of the complaining witness is paramount, a limitation on impeachment of that witness is likely to be prejudicial. Briggs also relies on cases holding that it is reversible error to exclude evidence of a complaining witness’s false accusations of sexual assault in a sex offense case that hinges on the credibility of the complaining witness and defendant. Recognizing this case does not involve a prior false accusation, Briggs contends that “a tangible government benefit like a promise of legal status and employment now and a green card down the line would seem to be much greater evidence of bias and lack of credibility than the mere fact that a complaining witness has falsely accused someone of a crime in the past.”
Because there were no other witnesses to corroborate John Doe’s account of the assault, we agree with Briggs that John Doe’s credibility was important. Nevertheless, the record in this case demonstrates the trial court’s refusal to allow the defense to question John Doe about any inducements for testifying did not violate Briggs’s confrontation right as Briggs was allowed broad cross-examination on matters bearing on John Doe’s credibility.
The defense was able to elicit inconsistencies among John Doe’s various accounts of the assault. For example, at trial John Doe testified he consumed six beers while listening to music at the Fandango club and denied having taken any drugs before the assault. However, Paolinetti, the physician’s assistant who conducted the sexual assault exam, testified that John Doe had told her he did not consume any alcohol within 12 hours prior to the assault but had used drugs within 96 hours prior to the attack. John Doe did not recall telling Paolinetti this information, nor did he recall testifying at the preliminary examination hearing that he had only drank two beers.
Defense counsel also elicited discrepancies in John Doe’s account regarding who carried the gun. At trial, John Doe testified that the tall, thin man carried the gun as the two assailants approached him. On cross-examination, John Doe admitted that at the preliminary examination hearing he had testified the shorter, heavier man was holding the gun. He then testified the men passed the weapon back and forth to each other. He also stated he did not remember telling the officers during the 2006 taped interview that the person who sexually assaulted him did not hold the gun.
The jury heard other inconsistencies in John Doe’s description of the assault. For example, at trial, John Doe stated that after he was assaulted he ran down Foothill Boulevard in search of help, but lost consciousness. In contrast, Tran testified that at the hospital on August 22, 2004, John Doe stated that after he was assaulted he ran back to the Fandango club for help and someone at the club called 911. Another discrepancy concerned John Doe’s account of who drove the truck. At trial, John Doe testified he was forced to drive the truck and was unable to recall whether, in the 2006 interview, he had told the officers he had driven the truck. Grant, however, testified that in the 2006 interview John Doe did not state he had driven the truck. John Doe acknowledged during cross-examination that he had told the officers during the 2006 interview that the two men had him sit in the middle of the truck on the floorboards while they drove at a high rate of speed.
John Doe’s ability to recall the events was also explored. For example, John Doe did not recall speaking with Grant on September 2, 2004, approximately one week after the incident, and he did not remember telling police that he did not want to pursue criminal prosecution of his assailants. John Doe also was unable to recall some of the statements he made to Tran, the officer who interviewed him at the hospital on August 22, 2004. John Doe also could not remember testifying at the preliminary hearing that the assailants shoved him in the truck first before they entered the vehicle, which contrasts with his trial testimony that the men entered the truck and then pulled him inside. Similarly, on cross-examination, John Doe was asked about his testimony at the preliminary examination hearing regarding his ability to see underneath the blindfold because there was a little tear in it. At trial, John Doe insisted he never said there was a tear in the blindfold.
Defense counsel was able to attack John Doe’s identification of Briggs. At trial John Doe stated he was 70 to 80 percent certain Briggs was the assailant who sexually assaulted him. During cross-examination, John Doe admitted that when he was interviewed by police at the hospital on August 22, 2004, he told the officer he would not be able to identify his assailants. The jury also learned that at the preliminary examination hearing John Doe testified he did not recognize Briggs as one of the assailants. On cross-examination, John Doe acknowledged that approximately one week before trial he told the prosecutor he did not identify Briggs as his assailant at the preliminary examination hearing because he was afraid that Briggs would get up and take the deputy sheriff’s gun and shoot and kill him in the courtroom. On direct and re-direct examination, John Doe explained that another reason he did not identify Briggs at the preliminary examination hearing was because he was hoping Briggs would be released so he could kill Briggs himself.
This record demonstrates that Briggs had ample ability to impeach John Doe’s credibility, and we are not persuaded that in light of the evidence presented, the jury would have received a significantly different impression of John Doe had the defense been permitted to question him about his immigration status, or any potential benefit he might receive regarding that status. (See Van Arsdall, supra, 475 U.S. at p. 680; Frye, supra, 18 Cal.4th at p. 946–947.) Accordingly, there was no constitutional error.
B. Cross-Examination of Iglesias-Lee
Briggs contends the trial court erroneously limited his cross-examination of Iglesias-Lee regarding the statistical basis for her testimony that Briggs’s DNA profile “occurs in less than 1 out of 1.5 trillion” people. He suggests that Iglesias-Lee was “just reading a number calculated by a computer program and had no understanding of the statistics involved.” According to Briggs, the DNA profile frequency evidence was a critical component of the prosecution’s case, and if he could have shown that Iglesias-Lee did not understand the statistics involved, the 1 in 1.5 trillion figure would have been meaningless and the jury would not have considered it. For this reason, Briggs argues the trial court’s restrictions on Iglesias-Lee’s cross-examination improperly hindered his ability to test the validity of that evidence, thereby violating his right of confrontation and his right to present a defense. The State maintains Briggs’s constitutional claims are forfeited, and that he was allowed broad examination of Iglesias-Lee regarding the statistical basis for her testimony.
We agree with the State that Briggs’s constitutional claims regarding this issue are forfeited because Briggs failed to present them either during trial or in his motion for new trial. (See People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited confrontation clause claim by failing to raise it at trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 628–629 [generally a constitutional claim must be raised in the trial court to preserve the issue for appeal].) Even assuming the claims are not forfeited, we conclude the trial court’s ruling was not an abuse of discretion and violated neither Briggs’s right of confrontation nor his right to present a defense.
Briggs’s claim that Iglesias-Lee appeared to have little or no understanding of the statistics involved in calculating the DNA profile frequency has no support in the record. Iglesias-Lee testified that, although she is not an expert in statistics, she does have a “working knowledge of the basic concepts,” and she used Pop Stats—an FBI software program generally accepted in the scientific community—to determine the DNA profile frequency in this case. Significantly, Briggs does not demonstrate that he was prohibited from probing into the limits of Iglesias-Lee’s understanding of statistical concepts and how or whether those limitations could affect her ability to testify regarding the DNA frequency profile calculation she obtained.
The only restrictions placed on defense counsel’s cross-examination of Iglesias Lee regarding the DNA profile frequency statistic concerned her knowledge of the population database controls used by the FBI in creation of the software program. Iglesias-Lee testified that the FBI population database comes from approximately 200 people from each of the African-American, Caucasian, Southeast Hispanic, and Southwest Hispanic populations. She explained they do not use Asian populations in her laboratory, but clarified that if necessary her laboratory would be able to use the Asian database. She also stated that to her knowledge, the people who donated the samples were usually people who donate to the Red Cross, for example, and they self-identified their race. She did not independently verify the accuracy of the statistics contained in the FBI data. When defense counsel asked if there “[w]ere there any controls in the [FBI] group when they made these calculations as to the geology [sic] as to where the people were selected from when they came up with these statistical demographic numbers,” the trial court sustained the prosecutor’s speculation and lack of foundation objections. Defense counsel also asked Iglesias-Lee if the population used for the FBI survey “came from a little enclave in Minnesota.” The prosecutor objected based on relevance, and the trial court again sustained the objection.
Briggs emphasizes the importance of having wide latitude to test the credibility of witnesses and the validity of DNA evidence. Other than the two inquiries regarding the population used in the FBI database, Briggs does not identify what other lines of questioning were foreclosed which would have been relevant to Iglesias-Lee’s credibility or her expertise. Further, the record shows Briggs was afforded the opportunity to question Iglesias-Lee regarding her analysis of the DNA evidence, how she derived the DNA profile frequency statistical figure, and her understanding of the FBI software program she employed to obtain that calculation.
The record also demonstrates the jury heard evidence bearing on Iglesias-Lee’s credibility and the weight to be given to the statistical evidence. First, on direct examination she admitted that she made a mistake when writing a date on one of the envelopes containing oral swabs. She acknowledged during cross-examination that she was not a “computer program software person.” On direct examination, Iglesias-Lee testified that “[e]ach person’s [DNA] is unique with the exception of identical twins which share the same [DNA].” On cross-examination she admitted she did not know whether Briggs was a twin.
The trial court’s rulings were not an abuse of discretion. The information sought had at best collateral impeachment value, and Briggs has not demonstrated how the prohibited cross-examination would have been important or necessary to assess the weight of the DNA profile frequency evidence. Having reviewed the record, we conclude the excluded cross-examination into collateral issues regarding the population data used to create the FBI software program would not have given the jury a “significantly different impression” of Iglesias-Lee’s credibility and therefore the trial court’s ruling did not violate Briggs’s confrontation right. (See Van Arsdall, supra, 475 U.S. at p. 680; Frye, supra, 18 Cal.4th at p. 947.)
In his argument that the trial court’s rulings violated his right to confront witnesses, Briggs maintains this error also deprived him of his constitutional right to present a defense. This right requires that a defendant be able “ ‘to present all relevant evidence of significant probative value to his defense.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 684.) Further, “[a]s a general matter, the ‘[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103 (Fudge), first and last instances of bracketed material added.)
Even if this issue had been properly preserved, we find no constitutional error. The record demonstrates “the trial court’s ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense.” (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Briggs was permitted to cross-examine Iglesias-Lee regarding the population used to establish the FBI database. The only lines of questioning that were precluded concerned what controls existed in the FBI population database, and whether the subjects came from a limited geographic area. Briggs has not identified any other lines of questioning he was foreclosed from pursuing which hampered his defense, and he was certainly not foreclosed from presenting affirmative evidence from an expert of his own if he felt that the prosecution’s evidence was susceptible of meaningful impeachment in this respect.
Briggs was not precluded from arguing this issue before the jury. Trial counsel discussed Iglesias-Lee’s testimony during closing argument, and stated: “One thing that is interesting is the population statistics which she based this kind of arbitrary number, 1.5 trillion people. Well, where is this group of 200 people that the [FBI] looked like. If they are from a little Amish community, you would hardly expect any population figures to be extracted which involve African Americans. [¶] She said they don’t even deal with Asians. I guess of the 6 billion people, I’m guessing two billion are Asians. They don’t deal with that. [¶] And Mark Twain said, and I think he stole it, that there are lies, damned lies and statistics. What we have got are statistics. She didn’t know whether or not Mr. Briggs had an identical twin. That would easily cloud her figures. There would be two in 1.5 trillion then. [¶] But those of us who use any computers or any kind of formula processing, garbage in, garbage out. And unless you are allowed to analyze how she came up with those numbers, how can you judge whether her figures are correct? You are making the decision, not her. Not the [FBI]. [¶] How did she get those figures? 200 people. The entire United States allows her to say 1.5 trillion, more than -- I don’t know, that is probably like more than 20 or 50 or -- where does she get those numbers?”
We conclude the trial court’s rulings limiting Iglesias-Lee’s cross-examination merely rejected certain evidence on a minor and collateral issue. As such, they do not amount to a constitutional violation because “excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]” (Fudge, supra, 7 Cal.4th at p. 1103.)
III. Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.