Opinion
B161589.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. PAUL CLARK, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jeffrey B. Kahan, Deputy Attorneys General, for Plaintiff and Respondent.
Paul Clark appeals from the judgment entered following a jury trial resulting in his conviction of four sexual offenses by a person over the age of 21 years with a child under the age of 16 years. He contends that (1) it was reversible error to admit propensity evidence, (2) the trial court denied him his state and federal constitutional right to cross-examination as he was not permitted to question the propensity witness about her prior mental history and mental state, (3) the trial court erred by failing to charge the jury with a unanimity instruction, such as CALJIC No. 17.01, as to the three counts of sexual penetration, (4) the trial court abused its discretion by admitting evidence of a fresh complaint, and (5) he was denied his right to counsel under the Sixth and Fourteenth Amendments as trial counsel was constitutionally ineffective.
We reject the contentions and affirm the judgment.
FACTS
The jury convicted appellant of participating in an act of sexual penetration with a foreign object by a person over the age of 21 years with a child under the age of 16 years (Pen. Code, § 289, subd. (i); count 1), of unlawful sexual intercourse by a person over the age of 21 with a child under the age of 16 years (Pen. Code, § 261.5, subd. (d); count 2), and of two counts of oral copulation by a person over the age of 21 years with a child under the age of 16 years (Pen. Code, § 288a, subd. (b)(2); counts 5 & 6).
1. The Prosecutions Case-in-chief
J.V., age 16, testified that during the 2000-2001 school year, when she was 14 and 15 years old and in the ninth grade, appellant, age 33, was her basketball coach at the private school she attended. He befriended her, socialized with her after basketball practices, asked her to be his girlfriend, told her he loved her, mentioned marriage, gave her expensive gifts, and became friendly with her family. He then eased her into a sexual relationship with him. During January and February 2001, there were six occasions at school or at his residence during the middle of the night in which they engaged in sexual intercourse and oral copulation. He digitally penetrated her on the first occasion when they had sexual intercourse, on the fourth occasion when they had sexual intercourse in a school utility room, and on the sixth occasion when they went to his residence in the middle of the night. He also engaged in sodomy with her on the sixth occasion. He did not use any protection during their sexual activity; she was a virgin before they had sexual intercourse.
In late January 2001, the schools athletic director, K.S., wrote a memorandum to the school administration complaining that appellant was having a sexual relationship with J.V. Thereafter, J.V. and appellant did not see one another until June 2001, when they engaged in sexual relations once in his car in a public garage. Also, one night at the end of June 2001, J.V. sneaked out of her residence to meet appellant, and he drove her to his residence. But J.V.s mother discovered that J.V. was missing from the family residence, and J.V.s father telephoned appellant. Appellant drove J.V. part way home. He dropped her off at a college that was a 30-minute walk from J.V.s residence and instructed her to walk home. It was 3:15 a.m., and she was scantily clad in pajamas on an icy evening. He then drove to J.V.s residence and pretended that he did not know where she was.
At that point, J.V.s parents believed that J.V. was involved in a sexual relationship with appellant. Her parents took her to a counselor and then to the sheriffs department. J.V. admitted one episode of sexual activity with appellant to a deputy sheriff. J.V.s mother had two of the schools female coaches, K.S. and S.L., and a girlfriend, L.G., confront J.V. The mother secretly videotaped the confrontation. During the confrontation, J.V. admitted to K.S. and to S.L. that she had engaged in three or four sexual encounters with appellant.
At trial, J.V.s 16-year-old cousin testified and corroborated J.V.s claim that J.V. had a sexual relationship with appellant. The cousin recounted how in January 2001, J.V. spent the night at her cousins residence and sneaked out to meet appellant. When J.V. returned in the early morning hours, J.V. told her cousin that she had had "sex" with appellant. The cousin testified that appellant had taken them out to eat after basketball practices and on errands. The cousin had seen appellant give J.V. a French kiss. She often saw them holding hands. J.V. and the cousin testified that appellant had been telephoning J.V. at home and on the cousins cellular telephone. The prosecution produced telephone records corroborating that appellant made such telephone calls.
J.V.s father testified that J.V. was having a particularly hard time during the 2000-2001 school year with her mother, and he had been out of town for long periods at the Sacramento Academy for the Department of Corrections. In retrospect, he recalled that on one occasion, he had seen appellant hug and touch J.V.s hair inappropriately. The father recalled that when K.S. complained to the school administration about appellant, appellant came to him and denied having a sexual relationship with J.V. J.V.s father had been a community soccer coach for years. When the father pointed out to appellant that appellant should be approaching his athletes like a teacher, one of appellants comments was: "`But how can you stand it? I mean, there are some girls that are nice looking out there."
J.V.s father testified on cross-examination that K.S. lost her job about the same time that he and his wife discovered that J.V. was having a sexual relationship with appellant. Appellant was promoted to K.S.s position at the school as athletic director.
2. Propensity Evidence
R.H., age 21, testified. She claimed that in a similar fashion, appellant, then age 27, had seduced her when he was her school coach and she was age 14. Her father had just died, and her mother was seeing "other people"; she was going through a hard time. Appellant told her that he cared about her and that she was a beautiful person. He gave her assistance in sports. He wrote her letters and telephoned her. He knew that she was a virgin, and he did not push himself on her. Once she trusted him, they started having a sexual relationship. They had sexual relations after practice, and she would sneak out of her residence at night and he would pick her up and take her to his residence. He never used protection when he had sexual intercourse with her. He told her that he loved her, gave her gifts, and ingratiated himself with her mother.
Appellant was her boyfriend for two years to age 16. Thereafter, she had an occasional sexual relationship with appellant to age 20. When she was age 14 or 15, her mother, the social worker, and the police had confronted her about the sexual relationship. She steadfastly denied it. She explained that she had denied the relationship because she loved appellant and because she did not want him to go to jail. She said they were in love.
During cross-examination, R.H. readily acknowledged that until she was age 18, she had difficulties with her mother, that she had been a liar, a thief, and rebellious, and that she currently was on probation for theft. She also explained, however, that she had her own son now and that she had turned her life around. R.H. said that she did not know J.V., she had never met her, and she was never told any details by the authorities about the current case or charges. After she spoke to the deputy sheriff who was the investigator in the case and revealed her relationship with appellant to him, she later read one newspaper article about the case.
3. Defense
Appellant did not testify on his own behalf.
He called K.S. as a witness and stipulated to the admissibility of the conditional examination of S.L. K.S. and S.L. said that they had observed any number of specific acts of conduct at the school that suggested that appellant was having an inappropriate sexual relationship with J.V. K.S. also testified that her memorandum to the school administration had not been acted on, and K.S. was fired by the school shortly after school let out. K.S. and S.L. were close friends. K.S. explained that she was disappointed that the school administration had turned a blind eye to her claims that appellant was engaged in inappropriate conduct with the female students. She admitted that her mother also had been fired that spring from the school. K.S. said, however, that she had a good recommendation from the school. She was given a letter of termination after she told the school administration that she was not returning the following year. She said that apparently, the schools owner decided not to keep her on the payroll for the two additional months remaining in the school year to save money; she did not believe that her termination was the same thing as having being fired from her position.
The videotaped confrontation with J.V. showed that despite her trial denials, K.S. was upset at the time of the videotape that she had been fired and that appellant was appointed to her position as the schools athletic director.
4. Rebuttal
The prosecution played the videotape of J.V.s admissions to K.S. and to S.L. of four episodes of sexual misconduct with appellant. J.V. testified in rebuttal that she was telling the truth about engaging in sexual activity with appellant.
5. Trial Counsels Final Argument
Trial counsel argued to the jury that J.V. was having trouble with her mother and sneaking out of the house at night. Independently, at school, political problems had developed between K.S. and S.L. and appellant. K.S. and S.L. surreptitiously started investigating appellants background, and they had started questioning J.V. about whether she was having sexual relations with appellant. Trial counsel urged that when J.V.s family caught her coming home in the middle of the night, she falsely accused appellant to deflect blame to someone else. Trial counsel questioned R.H.s motives for testifying against appellant and said that the only truthful witness at the trial was the sheriffs investigator. He argued that there were too many inconsistencies, lies, coercion, and strange circumstances surrounding the case to prove that appellant was guilty beyond a reasonable doubt.
DISCUSSION
1. The Propensity Evidence
Appellant contends that the trial court abused its discretion by admitting into evidence propensity evidence pursuant to Evidence Code sections 1108 and 352. We disagree.
All further statutory references will be to the Evidence Code unless otherwise specified.
A. Facts
Before the trial, in a section 402 hearing, the trial court addressed the issue of the admissibility of R.H.s propensity testimony. R.H. testified at the hearing and said that appellant had initiated a sexual relationship with her. R.H.s testimony regarding the technique that appellant used to secure R.H.s consent for sexual activity was remarkably similar to what he did with J.V. R.H.s father had just died, and R.H. had difficulties with her mother. R.H. was angry because her mother was dating. Appellant stepped into the breach and filled the role of a male in R.H.s life. Using his position as a school coach, appellant had ingratiated himself with her and her mother. He developed a special relationship with her, giving her gifts, flattering her, and telling her that he loved her.
R.H. acknowledged throughout her testimony that as a teenager, she was rebellious and difficult. She stonewalled her mother, the police, and the social worker by denying that she had a sexual relationship with appellant, and appellant was therefore never prosecuted for engaging in sexual activity with her. She did not admit the relationship because she was well aware that he would go to jail — he had told her not to tell anyone as that would be the result — and she loved him, and he was her only intimate friend for that period of her life.
She admitted that at the time, she had obsessive feelings about appellant. When questioned about this, she retorted that appellant was also obsessed with her. She admitted that years ago, to her peers, she may have made a comparison of her life to the story line in the movie Flowers in the Attic, where a mother attempted to murder her children. She explained that when she was a teenager, she had siblings and she believed that her mother was not giving her enough attention. She would tell everyone that she and her siblings were the children in the movie. At trial, she indicated that the comments were not serious; she said that only a delusional person would have truly meant those remarks.
R.H. testified that she had engaged in theft on appellants behalf. She stole checks from her mother and grandfather because appellant was experiencing financial troubles, and appellant forged the checks and took the proceeds and used them to pay his personal expenses. He stole his mothers cash from her house. She now believed that she had betrayed her family by engaging in such conduct. She admitted that earlier in her life, she had wanted to marry appellant. But since age 16, she had another boyfriend. She would still see appellant occasionally to have sexual relations with him, but she no longer had any interest in marrying him. She admitted trying to contact him after she became aware of his legal difficulties over J.V.
When questioned by trial counsel, R.H. told him that she was getting married, she now had a son of her own, and she had turned her life around. She was reconciled with her mother. In her family, they now laughed about all the difficulties she had as a teenager. She saw her relationship with appellant for what it was, and she regretted having had that relationship.
Trial counsel argued that appellant was not prosecuted seven years earlier because R.H. convinced the police officers and the district attorneys office that she was telling the truth when she said that she had no relationship with appellant. Now, suddenly R.H. was a credible witness. At trial, three police officers could testify to their opinions that in 1995 she was telling the truth. Further, the office of the district attorney investigated the charges, and no criminal charges were filed. R.H. had a sexual relationship with appellant as an adult, and she only changed her story after she found out that he was accused of having sexual activity with a 14 year old.
Trial counsel claimed that R.H. had stolen checks from her mother, she had a theft conviction, and she was currently on probation. He proffered that (1) in 1995, R.H.s mother said that R.H. was a pathological liar, she had an obsessive crush on appellant, she was a runaway, she was using drugs, and she was unreliable; (2) two schoolmates of R.H. would testify to letters that R.H. wrote describing a fantasy world of falling in love and getting married, of having sexual relations, of running away from home; and (3) in the letters, R.H. also talked about who she loved and who she hated, how she messed up all the time, and that she constantly was lying. One of the current district attorneys could testify that trial counsel had to ask the prosecutor to have R.H. stop attempting to contact appellant. Trial counsel argued that R.H. had alcohol and drug problems, and she is unable to distinguish fact from fantasy. The prior relationship was remote in time as it occurred eight years ago.
Additionally, at the hearing, the trial court considered the admissibility of the testimony of another female propensity witness, A.F. A.F. claimed that appellant had raped her when she was age 14. There was little corroboration for her claim, and the rape was discovered by the authorities only belatedly when there was trouble between her and her father over a boyfriend of hers. When confronted over his relationship with A.F., the boyfriend had repeated to the authorities what A.F. told him about the rape.
After considering the potential testimony of the two propensity witnesses and counsels arguments, the trial court ruled that it would admit R.H.s testimony as it was more probative than prejudicial. The trial court commented that (1) R.H.s experience with appellant was "extraordinarily" similar to that of J.V.; (2) the offense was investigated but not prosecuted and that was because R.H. denied the relationship; (3) R.H. has some motive to lie because her relationship with appellant had ended; (4) the eight-year lapse between the charged and uncharged offense did not make the incident remote in time; (5) introducing the 1994 incident would not involve an undue amount of time, and most of the impeaching evidence would be admitted through the cross-examination of R.H.; and (6) the testimony of the police officers and the deputy district attorney who interviewed R.H. in 1995 was not admissible in evidence. The trial court excluded A.F.s testimony as it was more inflammatory than the current offense as it concerned rape, and it was not as similar in nature to J.V.s complaint. A.F. also failed to remember the details of the incident, and five or more witnesses would have to be used to refute her claims.
B. Relevant Legal Principles
Section 1108 provides that if a defendant is accused of a sexual offense enumerated in that section, evidence of his commission of another uncharged sexual offense or offenses is not made inadmissible by section 1101, if the evidence is not inadmissible pursuant to section 352. "The effect of section 1108 [is] `to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. In this regard, section 1108 implicitly abrogates prior decisions . . . indicating that "propensity" evidence is per se unduly prejudicial to the defense. [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 281, quoting from People v. Falsetta (1999) 21 Cal. 4th 903, 911 (Falsetta).)
"[S]ection 1108 passes constitutional muster if and only if section 352 preserves the accuseds right to be tried for the current offense. `A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is. [Citations.]" (People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris), emphasis omitted.) 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."
In evaluating evidence of propensity pursuant to section 352, a trial court should consider the following factors: (1) the similarity of the offenses; (2) whether the uncharged offenses were more inflammatory than the charged offenses; (3) whether the evidences use will create a substantial danger of confusing the issues — if the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues because the jury has to determine whether the uncharged offenses occurred; (4) remoteness of the prior offense — a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses, although significant similarities between the prior and the charged offenses may balance out the remoteness; and (5) the consumption of time involved in addressing the prior offenses. (People v. Branch, supra , 91 Cal.App.4th at pp. 282-286; see also Harris, supra, 60 Cal.App.4th at pp. 736-737.)
In Falsetta, supra, 21 Cal.4th 903, the defendant asserted that section 1108 on its face violated due process, a claim that was rejected. However, the Falsetta court also identified the kind of factors a trial court should put in the balance pursuant to section 352 in determining the admissibility of propensity evidence: the prior misconducts "nature, relevance, and possible remoteness, the degree of certainty of [the misconduct] commission and the likelihood of confusing, misleading or distracting the jurors from their main inquiry, [the misconducts] similarity to the charged offense, [the misconducts] likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, at p. 917.)
"`The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations.] `Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.] [Citation.]" (People v. Zapien (1993) 4 Cal. 4th 929, 958.)
C. Analysis
In support of his claim, appellant argues that this case is analogous to Harris, supra, 60 Cal.App.4th 727. Further, he asserts that R.H. admittedly was a felon who had been convicted of theft, she admitted other thefts, she was an admitted liar, her mother had said that she was a pathological liar, at one point she said she had been "obsessed" with appellant, and her friends from school had stated that they believed that she was involved in "a life-consuming fantasy life." He claims that these items of potential evidence should have persuaded the trial court to exclude R.H.s testimony as it was so incredible that it was not probative.
Our review of the trial courts ruling is deferential. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We find no abuse of discretion here. The trial court was confronted at pretrial with two propensity evidence witnesses. The trial court carefully tailored the propensity evidence to the one more similar and probative prior episodes of sexual misconduct, excluding from evidence the less probative and more inflammatory forcible rape of A.F. The relationship with R.H. was highly relevant to show propensity as appellants misconduct with R.H. was almost identical to how he behaved with J.V. The uncharged misconduct was not remote in time as it had started eight years earlier and went on for at least four years when R.H. was a minor and until after she was age 18; an eight-year lapse is not considered sufficient for the incident to be considered remote in time. (People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [12-year and 15-year lapses of time not too long where highly similar charged and uncharged incidents]; see People v. Branch, supra, 91 Cal.App.4th at p. 284 [stating limits of remoteness in various cases].)
There was some danger that the jury would wish to punish appellant for the prior sexual relationship, but that consideration was counterbalanced by the probity of the misconduct. The prior incident had no tendency to distract the jury from the central focus of the current case — whether appellant committed the current misconduct with J.V. and the testimony bolstered J.V.s credibility, which is the purpose for using propensity evidence. The testimony was not cumulative as there was only circumstantial evidence to corroborate J.V.s claims. Most of the incidents evidence would be testified to by R.H., and there were few potential impeachment witnesses. The trial court properly exercised its discretion by admitting R.H.s testimony into evidence.
Appellant argues that the trial court should have concluded that R.H. was lying, and excluded her testimony because if R.H. was lying, her testimony was not probative. However, we read the record. It does not appear that R.H. was so incredible that the trial court abused its discretion by admitting her testimony into evidence. Ultimately, the jury is the final judge of the credibility of a witness. In 1994 and 1995, R.H.s mother and the authorities were concerned that R.H. was having a sexual relationship with appellant. However, with R.H.s denials, the authorities apparently concluded that they could not successfully prosecute appellant. R.H. explained during the pretrial hearing why she had lied about her relationship with appellant when she was younger: she wanted to protect appellant from criminal prosecution, and she believed that their relationship was a special case, and that he was not a sexual predator; she had since turned her entire life around, and she no longer was a rebellious teenager; she had reconciled with her family, and she was no longer using drugs, lying, and stealing; she recognized her relationship with appellant for what it was, and she regretted it. The defense was given an ample opportunity to impeach R.H. so that the jury could consider her testimony in its true light. On this record, it was up to the jury to determine credibility, and the trial court properly exercised its discretion by concluding that R.H.s testimony deserved consideration by the jury.
This case is readily distinguished from Harris, supra, 60 Cal.App.4th 727. In Harris, the defendant was charged with relatively minor felony sexual allegations. At trial, the prosecution used a 23-year-old, violent, bloody prior uncharged rape as propensity evidence, and the jury returned a verdict of guilty. On appeal, the trial court reversed the judgment. The court concluded that the use of the rape evidence was improper as the prior rape was dissimilar to the current offense and thus irrelevant, highly inflammatory, and it had improperly influenced the verdict. (Id. at pp. 737-741.) The prosecution and the trial court also limited the evidence about the rape so that it was impossible for the jury to discern the incidents true facts. (Id. at pp. 738-739.) The Harris court concluded that the use of such remote and inflammatory evidence where the defendant was charged with such mild sexual misconduct had the effect of denying him due process and a fair trial. (Id . at p. 741.)
The Harris decision is distinguished from this case as the uncharged offense here was highly similar to the charged offense and was not remote in time. The uncharged offense was presented in its true light. Thus, the decision in Harris fails to provide any support for appellants claim of inadmissible propensity evidence and of a denial of due process and a fair trial.
2. The Denial of Cross-Examination
Appellant contends that he was denied his right to cross-examine R.H. as the trial court precluded him from asking her about her long history of psychiatric problems, her suicide attempts, her running away from home, and her cheating and lying. We reject the contention.
A. Facts
During the section 402 hearing, the trial court sustained relevancy objections to trial counsels inquiries of R.H. as to whether she had been treated for psychiatric problems and had ever attempted suicide. After the objections were sustained, trial counsel informed the trial court that R.H. had a "long history of psychiatric problems, including suicide attempts, including her running away from home, cheating and lying." Trial counsel argued that his questions were relevant to R.H.s credibility and said: "By denying this right to cross-examine this witness about her fantasy world versus what we consider to be the real world, I think youre denying us an opportunity to properly cross-examine a witness for you to [sic] determine her credibility."
The prosecutor commented that she had no difficulty with the defense cross-examining R.H. about prior thefts as they involved moral turpitude, but she was unaware that R.H. had a psychiatric history or had attempted suicide. Further, if R.H. had such a history, it was irrelevant to her current credibility.
The trial court asked trial counsel for an offer of proof. Trial counsel replied that subsequent to the death of R.H.s father, R.H. made numerous suicide attempts. At that time, she was sexually active, and she had to be treated for cutting herself up and down her chest. The trial court inquired how that conduct was relevant to the witnesss current credibility. Trial counsel argued that the conduct occurred at the same time that R.H. was involved in an improper sexual relationship with appellant. At that time, she made statements that were untrue. Trial counsel said, "It goes to the fact of whether or not what happened in that time frame, after eight years later, as to her credibility, when she adamantly denied having sex before."
The trial court exercised its discretion pursuant to section 352 and ruled that R.H.s psychiatric history and her suicide attempts were inadmissible in evidence. The trial court commented that the evidence was less probative than it was prejudicial.
Just as the trial started, the trial court said that it would not permit anyone to question R.H. about whether she had psychiatric problems or was seeing a psychiatrist and that it was irrelevant whether or not R.H. had attempted suicide. Any other impeachment evidence would be addressed after the trial court had heard the Peoples case and by an offer of proof out of the presence of the jury. Trial counsel protested. The trial court observed that the defenses current offer of proof was woefully insufficient. There was no pretrial discovery on the issue, and trial counsels proffer was vague — the defense was not claiming that R.H. had been diagnosed with a specific mental disease or disorder.
B. Relevant Legal Principles
Section 780 provides that in determining the credibility of a witness, the trier of fact may consider any matter that has any tendency in reason to prove or disprove the truthfulness of the witnesss testimony, including, but not limited to, demeanor while testifying, the character of her testimony, the extent of his or her capacity to perceive, recollect or communicate, her character for honesty or veracity or their opposites, the existence or nonexistence of a bias, interest, or other motive, a statement that was previously made by her that was inconsistent with her testimony at the hearing, her attitude toward the action, and her admission of untruthfulness.
In People v. Anderson (2001) 25 Cal.4th 543, 608-609, Justice Kennard in a concurring opinion summarized the pertinent legal principles as follows: "The Sixth Amendment to the federal Constitution guarantees the defendant in a criminal prosecution the right `to be confronted with the witnesses against him. In almost identical words, the California Constitution, in section 15 of article I, also secures the right of confrontation. The primary interest protected by the confrontation guarantee is the right of cross-examination, which is `the principal means by which the believability of a witness and the truth of his testimony are tested. (Davis v. Alaska (1974) 415 U.S. 308, 316.) Because cross-examination implements the constitutional right of confrontation, a trial court should give the defense wide latitude to cross-examine a prosecution witness to test credibility. [Citations.] But the trial court retains discretion to restrict cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] The test for determining whether a trial court has abused its discretion in restricting defense cross-examination of a prosecution witness is whether a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. [Citations.]
"Mental illness, insofar as it affects a witnesss ability to accurately perceive, remember, or describe the events about which the witness is testifying, or establishes a bias against the defendant, is relevant to credibility and may be established by cross-examination concerning the witnesss clinical history of diagnosis or treatment. [Citation.]
"`Factors a court should consider in allowing in such evidence are the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify. [Citation.] For example, a mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety. [Citations.] And a trial court generally may preclude cross-examination about psychiatric treatment occurring many years before the trial or hearing at which the witness testifies and long before the events to which the witness testifies. [Citations.]" (Accord, People v. Gurule (2002) 28 Cal.4th 557, 592; People v. Herring (1993) 20 Cal.App.4th 1066, 1072.)
C. Analysis
Appellant claims that he was denied his rights to due process and to confrontation because he could not examine R.H. about any psychiatric history, her suicide attempts, and her running away as a teenager. However, the trial court properly exercised its discretion by using section 352 to prevent the defense from making the inquiries. Appellants proffer was devoid of a connection between R.H.s mental health history and her credibility. Her rebelliousness and self-destructiveness was not the sort of psychological problem that would have affected her ability to perceive and relate the events that occurred in 1994 and 1995 or later. (See, e.g., U.S. v. Butt (1st Cir. 1992 ) 955 F.2d 77, 82-83 [a current mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing depression, irritability, impulsivity, or anxiety].) Further, R.H. testified that she had resolved her teenage problems several years earlier, and she had turned her life around. Thus, any psychological problems that she had experienced in 1994 or 1995 did not affect her current credibility as they were remote in time. On this record, the trial court properly exercised its discretion by thwarting what amounted to an improper defense attempt to evoke an emotional response from the jury by character assassination. (See People v. Karis (1988) 46 Cal.3d 612, 638; People v. Zapien, supra, 4 Cal.4th at p. 958.)
"As a general matter, the `[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Moreover, the application of evidentiary rules does not violate the confrontation clause when it involves evidence "on a minor or subsidiary point." (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) The defense was permitted to impeach R.H. with her theft offenses, her status on probation for theft, and her admissions that she previously had lied about a lot of things. Trial counsel was permitted to inquire into her fantasies about the movie Flowers in the Attic. There is no error as the jury would not have a significantly different impression of R.H.s credibility had trial counsel been able to cross-examine her as to any psychological problems, her earlier self-destructiveness, and that she had run away in 1994 and 1995. Furthermore, the source of much of the information about R.H.s teenage rebelliousness would have come from her mother. Her mother was present at the section 402 hearing and the trial, and the defense made no effort to call her as a witness. We can only assume that the defense failed to do so because the mother would not support the defense claims. Accordingly, the record fails to demonstrate that the trial court denied appellant a fair trial, the ability to present his defense, and his right to confrontation.
3. Jury Instruction on Unanimity
Appellant contends that the trial court failed to give a proper jury instruction on unanimity, such as CALJIC No. 17.01, as to the offenses of sexual penetration by a foreign object. We reject the contention.
The trial court charged the jury with a modified version of CALJIC No. 17.01, as follows: "The defendant is accused of having committed the crimes of . . . unlawful sexual intercourse in counts 2, 3, 7, 10, 14, and 17; oral copulation of a person under [age] 16 by a person over [age] 21 in counts 5[,] 6, 9, 12, 13, and 16. [¶] The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction of these charges can be based. The defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts. However, in order to return a verdict of guilty as to any of these counts, all jurors must agree that he committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict. [¶] Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of any or all the crimes charged. Your finding as to each count must be stated in a separate verdict." The trial court also charged the jury that it should "[c]onsider the instructions as a whole and each in light of all the others."
The information charged appellant in counts 1, 4, 8, and 11 with participating in an act of sexual penetration by a person over 21 years of age on a person under the age of 16 years of age in violation of Penal Code section 289, subdivision (i). The information also charged appellant with 13 other counts of sexual misconduct: (1) counts 2, 3, 7, 10, 14, and 17 charged him with unlawful sexual intercourse in violation of Penal Code section 261.5, subdivision (d); (2) counts 5, 6, 9, 12, 13, and 16 charged him with oral copulation in violation of Penal Code section 288a, subdivision (b)(2); and (3) count 15 charged him with sodomy in violation of Penal Code section 286, subdivision (b)(2). Each of the crimes was alleged to have been committed between January 1, 2001, and July 3, 2001.
Appellant relies upon the well-established legal principle set forth in People v. Jones (1990) 51 Cal.3d 294, 307 (Jones) that when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. From this legal principle, he argues that the unanimity instruction in this case, a modified version of CALJIC No. 17.01, was given only as to the multiple counts of unlawful sexual intercourse and oral copulation, and not with regard to the three counts of unlawful sexual penetration. He claims there was no prosecutorial election. Thus, because no instruction was given naming the unlawful sexual penetration counts, there was prejudicial error.
However, the record shows that the trial court limited its instruction to the counts of unlawful sexual intercourse and oral copulation for a reason. For those counts, the trial court properly gave CALJIC No. 17.01 because J.V. testified to more acts than there were counts in the information, the prosecutor did not make an election on these counts, and it did not identify specific acts for the jury as belonging to any specific count in the information.
However, the prosecutors conduct during the trial with regard to the acts of sexual penetration was different. The trial court dismissed count 11 as no testimony supported it. The prosecutor identified the three counts in the information (counts 1, 4, and 8) with the three specific acts of digital penetration testified to by J.V. These were the only counts of unlawful sexual penetration remaining in the information. These three counts exactly matched the three acts of unlawful sexual penetration that the jury was required to consider. The prosecutor told the jury during final argument the exact testimony by J.V. that was embodied in the three counts. In these circumstances, no unanimity instruction (CALJIC No 17.01) for counts 1, 4, and 8 was required. (See Jones, supra, 51 Cal.3d at p. 307 [stating the rule and examples of when a unanimity instruction is required].)
4. The Fresh Complaint Evidence
J.V. told her cousin in January 2001 that she had sex with appellant. That testimony by the cousin was admitted into evidence as a fresh complaint. The trial court admonished the jury not to consider the contents of the statement for its truth and to consider the evidence only on the issue of whether or not J.V. told her cousin about having sexual intercourse with appellant. On appeal, appellant contends that J.V.s statement was not a "complaint," and thus was inadmissible in evidence as a fresh complaint. We disagree.
In People v. Brown (1994) 8 Cal.4th 746 (Brown), the California Supreme Court set forth the current "formulation and parameters" of the fresh complaint doctrine. The historical precedent for the rule arises from the assumption that the victim of any sex offense would be outraged by its commission and would immediately complain to authorities about the outrage. Where the victim credibility is attacked on grounds that there was no immediate outcry, a fresh complaint to another to whom she had confided her complaint can be used to rehabilitate the credibility of the victim. The Brown court reviewed the historical precedents and requirements for the rule. Then it stated that "proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose — namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others — whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred." (Id. at pp. 749-750.) The court explained that "only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule." (Id . at p. 760.)
Appellant argues that what J.V. said to her cousin was by its nature a mere disclosure, not what is classically meant by the term "complaint." He asserts that because J.V. was not conveying her displeasure at having had sexual intercourse, the disclosure was inadmissible in evidence as a fresh complaint. The People reply that the doctrine in Brown is broader than appellant claims, and the Brown decision encompasses any disclosure of the elicit relationship by a victim who is below the age of consent. We conclude that the People are correct.
The Brown case involved a 12-year-old female child who in 1990 made complaints of five years of sexual abuse by her mothers live-in boyfriend, the defendant, after the defendant moved out of her mothers residence. (Brown, supra, 8 Cal.4th at p. 750.) At trial, the child was permitted to testify that one month after the defendant moved out, she confided to her best friend that the defendant had sexually abused her. The child also testified that, later that year, she lived with surrogate parents, and she confided in her "adoptive father" and in her "stepmom" about the sexual abuse. (Id. at p. 751.) She also said that she told another woman and two police officers about the sexual abuse. The stepmother testified that shortly after the child moved in with her and her husband, the child disclosed the sexual abuse. On appeal in Brown, the defendant asserted that it was error to admit the testimony of the child and that of the stepmother as fresh complaints. (Id. at p. 754.)
The Brown court approved the use of the testimony as fresh complaints and said the following: "In sum, although one of the premises upon which the fresh-complaint doctrine historically has rested has been substantially eroded in recent times, our more recently acquired knowledge does not logically support a rule that would compel the exclusion of all evidence relating to the circumstances under which an alleged sex-offense victim complained of, or disclosed, the alleged offense, but instead calls for revision of the contours of the doctrine to reflect more accurately the basis upon which the admissibility of such evidence should be evaluated. We conclude, for the reasons discussed above, that evidence of the fact of, and the circumstances surrounding an alleged victims disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance. (Evid. Code, § 210.)" (Brown, supra, 8 Cal.4th at pp. 762-763.)
In Brown, it was not only "complaints" that the Supreme court determined were admissible in evidence. The court indicated that "disclosures" of sexual abuse made to others in confidence that do not fit within the narrow definition of a "complaint" are also admissible in evidence. In the above-quoted passage, and indeed, throughout the Brown opinion, the court used the word "complaint" interchangeably with the word "disclosure." (Brown, supra, 8 Cal.4th at p. 763.) Based upon the facts of the Brown decision and its explicit language, we conclude that the updated fresh complaint doctrine includes more general disclosures of sexual activity as well as true "complaints" by a child witness.
During the instant trial, appellant attacked the victims credibility on grounds that the victim belatedly fabricated the complaint to avoid punishment by her parents for leaving the family residence late at night. In these circumstances, in anticipation of the attack on the victims credibility, the People were entitled to bolster J.V.s credibility by demonstrating that in January 2001, she had confided to her cousin her new sexual experience with appellant. (Brown, supra, 8 Cal.4th at pp. 762-764.) The trial court properly admitted the cousins testimony into evidence as a fresh complaint.
5. Ineffective Trial Counsel
Appellant contends that trial counsel was constitutionally ineffective because (1) at sentencing, he failed to ask for a reduction of the "wobbler," the unlawful sexual intercourse rape offense; and (2) during the prosecutors final argument, he failed to object to blatant misstatements about the elements of an offense of sexual penetration. The contention lacks merit.
A. Relevant Legal Priniciples
To establish that trial counsel was constitutionally inadequate, a defendant has the burden of proving trial counsel failed to act in a manner to be expected of reasonably competent trial counsel. Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsels failings. (Strickland v. Washington (1984) 466 U.S. 668, 690-696; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) The deficit performance must render the result of the trial unreliable or the proceedings fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370.)
If the record sheds no light on why trial counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation, the case is to be affirmed on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 425-426.) An appellate court need not address both prongs of the test for ineffective counsel before rejecting a claim of ineffective trial counsel. If a defendant fails to establish either prong, the existence of the other prong is moot, and the claim may be disposed of based upon the one prong. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
i. The Failure to Request a Reduction in Punishment
Appellant asserts that he has demonstrated ineffective trial counsel because the "`message" clearly conveyed by the jury in acquitting appellant of eight charges and by deadlocking on four more charges was that the jury did not view appellants misconduct as serious. Further, at sentencing, the trial court gave appellant an extremely lenient sentence of three years in state prison. In these circumstances, appellant claims that trial counsel was constitutionally ineffective because he failed to ask for an even more lenient sentence — to have the trial court reduce the unlawful sexual intercourse offense to a misdemeanor pursuant to Penal Code section 17, subdivision (b)(5).
We reject this claim.
a. Pertinent Facts
At sentencing, the trial court read and considered a probation report indicating that appellant had no prior criminal history. Probation was recommended as appellant was employable, amenable to counseling for sexual offenders, and there was special, intensive case supervision available for probationers that posed a threat to children. The trial court also read and considered letters from friends and family friends of appellant, remarking on what a good person he was. J.V.s parents submitted a letter to the trial court indicating that appellant had subjected their family to a horrible "ordeal." They detailed how J.V. had been a happy child with no problems and whose only interest was athletics. They said that J.V.s experience with appellant had turned her into "a bitter person who does not trust anyone because she feels that they are going to lie to her and use her." The parents were afraid that appellant had brought about a change in their daughter from which she would never recover, especially because she refused to go to counseling. The victims parents said that their daughter was not appellants only victim, and the only way to deter appellant from targeting other children for abuse was to impose a maximum term of imprisonment.
Prior to sentencing, the prosecution submitted a sentencing memorandum. In the memorandum, they informed the trial court that probation was available after a conviction of sexual penetration only in unusual cases where the interests of justice would best be served by probation. (Pen. Code, § 1203.065, subd. (b).) The prosecution requested a six-year prison term.
The defense sentencing memorandum and its supplement disclosed that appellant was single and 35 years of age, and that he took care of his elderly, retired mother. In addition to teaching, he was a professional musician. He had exceptionally strong family ties with his Duarte family. In the memorandum, trial counsel argued that the jury apparently returned verdicts reflecting one episode of aberrant misconduct. The victims father was an officer with the Department of Corrections. Due to the nature of appellants convictions and the publicity in the case, appellant might be abused in state prison. The victims family had filed a civil suit against him. The defense asked for probation or a diagnostic evaluation in contemplation of a grant of probation.
At the sentencing hearing, the victims parents appeared and asked for a maximum term of punishment. Appellants family members reiterated that appellant was a good person who helped everyone and that he was very outgoing. Appellants mother told the trial court that appellants conviction meant that he would be unable to teach or coach again, which was what he loved to do. She and appellants father asked for a grant of probation. A California highway patrolman, a neighbor of appellants family for years, urged that appellant and his family were persons of good character, and the patrolman did not believe that appellant was a threat to the community. The patrolman asked the trial court to consider probation. Other letters from friends made positive comments about appellants character and urged that he would be a good candidate for probation.
The trial court indicated that it had settled on a three-year prison term for appellant, and it asked for the comments of counsel. Trial counsel urged that the relationship was consensual and loving and that a grant of five years of probation was far more beneficial to society than putting appellant in prison for what amounted to a mere 18 months of incarceration. Further, parole supervision was less likely to be as intensive as that available with a grant of probation; and appellants was an unusual case, making him eligible for probation.
The prosecutor argued that there were no unusual circumstances permitting a grant of probation, and the case warranted a maximum term of six years in state prison. The prosecutor commented that appellant was manipulative. He had ingratiated himself with the victims family in order to commit the offense. In June 2001, when the parents telephoned him terrified that their daughter was missing, appellant had pretended to assist in the search. That conduct displayed sophistication and cunning. Appellant had no remorse. He had committed sexual misconduct with two other victims. If there was any concern about the victims father improperly influencing other correction officers to harass appellant in prison, the trial court could make an appropriate order.
Appellant personally addressed the court. He denied that he had committed the offenses and that he was a sexual predator. He stated that since his arrest, he had been hounded by the media and he had lost his privacy. He said that for the rest of his life, he would have to register as a sex offender and live with the consequences of the conviction. He had started a home business because the conviction made it difficult to get a job, and he had taken out a loan. If he went to prison, he would lose his business and his personal assets. There was a limit to how much financial help his mother could give him, especially as she was getting divorced. He had the expense of hiring trial counsel. He said that he was a good man and that he would never hurt anyone. He claimed that going to state prison would "absolutely destroy him." He was willing to cooperate in probation and attend counseling; he wanted a chance to continue with his life and to be there to assist his mother emotionally and financially.
The trial court commented that appellant had occupied a position of trust at the school as a coach. Parents did not expect to expose their children to sexual abuse by involving them in after school sports. Appellants relationship to J.V. made her particularly vulnerable and made her more vulnerable than had she "hooked up" with a friends older sibling or another adult. Thus, the offenses were extremely serious.
Further, appellant used no form of protection when he had sexual relations with 15-year-old J.V. Appellant used sophisticated means to avoid detection of his misconduct. He pretended to be the familys "new best friend" and betrayed the family by keeping from them the information that he was seeking to have a sexual relationship with their daughter. The court declined to find that the offenses amounted to one aberrant episode of misconduct.
The trial court imposed a middle term of three years as to the count 2 unlawful sexual intercourse offense. It imposed the terms for the other three convictions concurrently.
b. Analysis
We agree that the count 2 offense of unlawful sexual intercourse is an alternate felony-misdemeanor, and that the trial court was empowered to exercise its discretion pursuant to Penal Code section 17, subdivision (b)(5), to reduce the statutory rape offense to a misdemeanor. However, there is a satisfactory explanation in the record for trial counsels failure to make that request. Given the trial evidence and the facts in evidence at the sentencing proceedings, it appears that trial counsel did not ask for the reduction to a wobbler as it made no difference to the aggregate prison term. Further, given the serious nature of the offenses and appellants lack of remorse, it was unlikely that the trial court would have reduced the wobbler to a misdemeanor. Also, as a tactical matter, trial counsel may not have wanted to distract the trial court from appellants more important request for probation, a request the trial court might have considered. This record does not demonstrate even the first prong of the test for ineffective trial counsel. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
ii. The Failure to Object to a Claimed Misstatement of Law
Appellant also claims that trial counsel was constitutionally ineffective because he did not object to a comment by the prosecutor during final argument that amounted to prosecutorial misconduct. Again, appellants claim does not support a finding of ineffective trial counsel.
Appellant asserts that the following comments made by the prosecutor during final argument were a blatant misstatement of the law: "The defendant participated in an act of penetration of the genital opening of the victim, and he used a foreign object. A foreign object can include any part of the human body. So, what this means is, in our case, that the defendant placed his fingers inside [J.V.]s vagina. Thats the foreign object, his fingers, and that he had the specific intent to arouse or gratify [J.V.]" (Italics added.)
Appellant argues that the remark misstates the law because Penal Code section 289 defines a "foreign object" as "any part of the body, except a sexual organ." (Pen. Code, § 289, subd. (k)(2).) He claims that the remark was false, prejudicially misleading, and improper since it was on a subject matter which was not of common knowledge. He complains that the comment would have led the jury to conclude that appellant was guilty of participating in an act of sexual penetration offense if he penetrated the victims genitals not only with his fingers, but with his penis. This was misconduct because penetration with any sexual organ is not prohibited by Penal Code section 289, subdivision (i).
The prosecutor did omit in her comment that sexual organs are excluded as a foreign object. However, the prosecutor immediately qualified the above remark by indicating that the unlawful sexual penetrations that she was referring to were those that appellant accomplished with his fingers. The fingers are not sexual organs, and thus the acts set forth in counts 1, 4, and 8 properly fell within the ambit of Penal Code section 289, subdivision (i). On this record, the prosecutor made no misstatement of law. Furthermore, the failure to object to improper comment during final argument is generally regarded as a tactical matter. (See People v. Hayes (1990) 52 Cal.3d 577, 634.) Appellant has not carried his burden of showing the initial prong of the test for ineffective trial counsel — that trial counsel failed to act in a manner to be expected of reasonable counsel. Accordingly, we affirm the judgment. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J., ASHMANN-GERST, J.