Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS041599
ELIA, J.A jury found appellant guilty of one count of continuous sexual abuse of a child and 21 counts of lewd acts on a child for sexual conduct with his stepdaughter from 1995 until 1999. (Pen. Code, §§ 288.5, subd. (a), 288, subd. (a).) Appellant contends that he was denied his Sixth Amendment right to counsel when the trial court denied his motions to substitute counsel and to continue the trial date. He further contends that the trial court erred in excluding certain defense evidence and in limiting defense counsel's closing argument. We affirm.
Evidence at Trial
Appellant, a medical doctor, met T. when she was four years old and appellant was having an affair with her mother, Sabrina. When Sabrina became pregnant, appellant left his wife, Maria Daly, also a medical doctor, and eventually married Sabrina. Sabrina gave birth to appellant's son, Ty., in 1992. T. testified that appellant began to molest her when she was five years old.
Maria Daly testified that when their marriage ended, appellant told her that as a child he had been sexually abused by a female family member and "that he had these feelings about our daughter" but that "he pushed her away."
By 1993, appellant, Sabrina, Ty., and T. were living on a rural property in Carmel Valley. Daughter Ta. was born in 1995. T. testified that appellant molested her near a tree on the property, asking her to kiss and suck his penis. She also described occasions during which he licked her vagina. She described incidents of this nature occurring in the bathroom, the kitchen, the bedroom, a table in a shed on the property, and at a construction site. T. testified that sometimes she was molested in the living room after the other family members had gone to bed. During one such molest, her brother Ty. walked into the living room and saw her orally copulating appellant. On other occasions appellant would move his finger up and down in T.'s vagina. T. further testified that appellant routinely took her to his medical office on Sundays, when the office was closed. There he would orally copulate her while she was on the gynecological exam table and then push his penis against her vagina until he ejaculated.
Ty. testified that one night he came out of his bedroom and saw "my dad's private parts was in [T.'s] mouth and my dad told . . . my sister to . . . take and put me to bed."
T. testified that appellant stopped molesting her when she was in fifth grade before she moved to Utah to live with her natural father, Paul B., at winter break from school in 1999. By then, appellant and Sabrina were divorced and T. started "realizing what was going on was wrong." She was having trouble at school. She drew pictures of appellant in a notebook. One of the drawings, in red pen on lined paper, showed appellant with "no arms because [she] want[ed] him to stop touching [her]." In another, as T. described it for the jury, appellant "is in a coffin and all the heads are near the coffin. Those are all the people in the world that are all happy that he's dead."
After T. returned from Utah, she lived with appellant who had moved to Sonora due to a job transfer. Appellant promised to buy T. a horse. In 2002, Sabrina moved to Brazil with T., Ty., and Ta. There T. told Sabrina and an aunt about the molestations. T. testified that when appellant visited the family in Brazil, she asked him, in Sabrina's presence, "do you deny the fact that you raped me when I was a little girl?" She said that appellant said, "oh, no, oh, no, I didn't, I just fondled her."
In 2003, T. became pregnant by someone in Brazil and the family returned to the United States. In 2004, living in Maryland with Sabrina, Ta., and Ty., T. went to the Easton County social services office for help in obtaining child support from her natural father. During the interview with the social worker there, T. made statements about appellant that prompted the social worker to contact that county's police department and the Monterey County Sheriff's Department.
The Easton County Police Department arranged pretext telephone calls between appellant and T. In the first call, Sabrina called appellant and told him that T. wanted to speak with him and that T. was not doing well. T. told appellant that "what happened to me in the past" was "weighing really heavy on my shoulders and I was wondering if we can talk about it." Appellant and T. arranged a time for a longer call. In the second call, T. told appellant, "I'm having trouble understanding, you know, why all that happened, when I was little, you know. It's just not something that I'm understanding very well . . . ." Appellant told her, "what [was] going on . . . with Mom and myself" brought about "my own feeling of isolation and you becoming a companion and that's what happened in that, that . . . aspect, uh, you became, uh, my, my focal point of, um, how do I say, uh, um, closeness. That's what initiated the whole thing. And it got, well, taken to the wrong extreme."
T. told appellant that she was "having trouble understanding why you had sex with me." After a pause, appellant described feeling "stressed and abandoned" and told T. that she had become "my companion and substitution for, uh, closeness that, uh, I should have had with Mom. That's what, uh, you became a basically replacement of Mom." T. asked appellant "why it happened in the office" and appellant told her, "Because you had become my love object." Appellant told T. "it was not healthy and it was the wrong thing. I admit it was."
Appellant testified and denied molesting T. He spoke at great length about his relationship with Sabrina and the problems that they had had in their marriage. He remembered when he suspected that she was having an affair with the owner of a nearby coffee shop. On a trip to Rome, Sabrina gave her wedding ring to a beggar in appellant's presence. Appellant testified that before he had actually confirmed that Sabrina was having an affair he became "more active with [T.] as to talking to her, telling her about how I felt." He said he "talked to her about world affairs, stocks, just general news, and related to her like you would an adult."
The coffee shop owner testified and confirmed that he did have an affair with Sabrina.
Appellant testified that when he visited the family in Brazil, it was "marvelous" and "just tremendous." He said that at the end of the trip Sabrina told him that T. had told her that appellant had sexually molested T. Appellant testified that he was "shocked." He said that he told Sabrina that T. "tells a lot of stories and lies and this was a fabrication on her part." He said that he did not talk to T. about what Sabrina had said. He was in frequent and intense contact with Sabrina from August 2002 through July 2003 but believed he had to "pussy-foot around" the sexual molestation accusations with Sabrina to remain in contact with his children while they were in Brazil.
Appellant testified that when T. became pregnant in Brazil, conflict developed between Sabrina and T. over how to handle the situation. Sabrina "said a few nasty names" about T. to appellant. Appellant was in favor of having the pregnancy terminated. Although the family returned to the United States to explore this option, T. ultimately "decided to keep the child." Appellant then went with the family on a trip to Disneyland.
Appellant testified that when Sabrina moved with the children to Maryland a "dispute" developed between him and Sabrina over economic and other issues. In explaining what he was thinking about during the pretext calls, appellant said that when Sabrina called him to say that T. was not doing well, he believed T. "might be having problems . . . in relationship to the pregnancy and imminent birth." He explained his remarks during the recorded phone call as an apology for using her as a "companion" and talking to her "in an adult manner." When asked about his response to T.'s comment about "having trouble understanding why you had sex with me," appellant testified, "That went right basically over my head from the standpoint I was concentrating on trying to explain to her, uh, her relationship with myself in context with my relationship with Sabrina, and that didn't register with me."
Dr. Anthony Urquiza testified as an expert in the area of child sexual abuse. He described the components of the child sexual abuse accommodation syndrome as secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. Dr. Rahn Minagawa, a psychologist who has worked extensively in the field of child sexual abuse, testified that the child sexual abuse accommodation syndrome was "intended specifically for clinical use" and "was never intended to be used in a forensic arena." He agreed with Dr. Urquiza that "anywhere between two to possibly eight percent of allegations about sexual abuse from children or adolescents was false." He said, "Fictitious allegations appear to occur in two populations . . . . One is coached children in custody disputes. And the second, adolescents who make up convincing reports out of boredom, infatuation or in an effort to retaliate."
Appellant failed to appear for closing arguments and the jury was instructed not to draw any adverse inference from his absence. In closing argument, counsel argued the credibility of T. versus appellant. Defense counsel argued, "Is this a case where a child is lying? It comes down to that. It's one way or the other." The jury retired to deliberate at 9:00 a.m. on the morning of April 13, 2005. The jury requested some clarification of counts that appeared to be "identical." At 1:24 p.m. the jury returned with a verdict convicting appellant of all 22 counts.
Appellant went to Argentina and then Uruguay where he was arrested by Interpol and returned to Monterey County. On June 18, 2007, the trial court denied appellant's motion for a new trial and sentenced him to a state prison term of 58 years.
Motion to Substitute Counsel
Appellant contends, "The trial court's denial of appellant's motion to substitute in Attorney Martinez deprived him of his constitutional right to be represented by counsel of his choice."
Background
On May 18, 2004, appellant was arrested for these charges. He consulted with attorneys Richard Rosen, Eugene Martinez, and Lawrence Biegel and retained Rosen, who appeared with appellant at his arraignment May 20, 2004, when the complaint was filed. Rosen appeared with appellant when he waived preliminary examination. On July 21, 2004, the information was filed and on July 27 the court set a trial date of September 13, 2004.
The People filed a motion to continue the case due to the unavailability of an expert witness. On September 2, 2004, Rosen asked the court to continue the trial date in order to do further investigation. The prosecutor said that she had no objection "so long as in the event that whatever date we pick the People's witnesses, if they are unavailable, Mr. Daly would continue to waive time until such time as they are available." Appellant waived time and the trial date was continued until December 6, 2004, with a jury trial calendar call on November 18, 2004. The trial court said, "The Court has that week then dedicated to this trial and would expect it to go, absent some calamity on that date or obviously if witnesses are unavailable. You should know that soon so that we don't have that week set aside for nothing." Discovery in the case continued and dates were set for the receipt of subpoenaed records during October and early November. On November 18, the matter was continued to November 30, 2004, for jury trial calendar call.
On November 30, appellant appeared with Rosen. Attorney Martinez also appeared and requested that he be substituted in as attorney of record. Martinez told the court that he could begin working on the case that day but that he would not be prepared for trial until late January or early February. Attorney Rosen told the court that he, too, would need the case continued until late January. The trial court explained that the matter would have to be continued anyway because the court was "in the middle of a murder trial" in which the defense counsel had had "some medical issues." The trial court vacated the December 6 jury trial date and set the matter for December 10 for the motion to substitute attorneys. The trial court continued the trial to January 20 for calendar call and January 31 for trial.
On December 7, 2004, Martinez filed the motion "for substitution of attorney and for continuance of jury trial." The motion stated, "Mr. Daly's motion to discharge Mr. Rosen and substitute Mr. Martinez has been brought here in a timely fashion prior to the current trial date." It said, "The alleged victim in this case is now sixteen years old, a young mother and resides on the other side of the continent." Martinez included a declaration in which he explained that appellant had consulted with him in May 2004 but that he was not retained until November 29, 2004. By then, Martinez had been told that appellant and Rosen "had developed serious differences . . . regarding the strategy and manner of preparation of this defense for the pending trial." Martinez had reviewed some 848 pages of prosecution discovery. Martinez declared that it was his opinion that "significant potential areas of defense must be and have not been, explored" and that "considerable further investigation" needed to be done. He said that he and his staff could begin trial preparation immediately but that there was "no practical way" that preparation could be completed before late April or early May of 2005. The motion noted that "the prosecutrix delayed report of the alleged sexual assaults for twelve years from the initial alleged crime and for over four years from the last. . . . The complaint was not filed for three months following the initial report from law enforcement."
The prosecutor filed opposition to appellant's motion. The prosecutor stated that when Martinez moved to substitute in as counsel, Martinez told the court that "his own vacation schedule would preclude him from being able to be ready for trial by January 31, 2004" and that he "indicated in chambers that he would not be available for trial until May, 2005, due in part to Mr. Martinez's upcoming 2 month vacation." The prosecutor argued that "the five-plus month continuance that such a substitution would require is unreasonable and contrary to the objectives stated under Penal Code sections 1050(a), 1048(b), and California Rule of Court 4.113. The interests of justice and the rights of the victim in this child molestation trial outweigh the defendant's need for an unreasonable delay in this case." The prosecutor cited Penal Code section 1048, subdivision (b), which gives priority in child molestation cases over other criminal matters and said that although T. was willing to testify, "there is obviously stress, anxiety, and embarrassment associated with having to testify about this type of crime that will not be alleviated until the trial is over." The prosecutor stated, "The witnesses in this case include the minor victim, her two younger half siblings, and her mother, all of whom live in Maryland. There is an ongoing custody action with defendant regarding his right to visit with his two biological children which cannot be resolved until [the] criminal case has been resolved. Obviously, these witnesses are afraid for their safety."
At the December 10, 2004, hearing on the motion to substitute Martinez as counsel and to continue the trial date, Martinez noted that the case had been continued a number of times since May and that "there's never been an objection based on any Penal Code section that would accelerate this matter or point to an emergency in having it heard until now." Martinez noted that he had "asked for a date in late April, early May" but said that "if the Court has concerns for reasons expressed by the People or other concerns regarding the management of its calendar, I'd be more than glad to hear those and see if some accommodation can be made." Martinez said, "this is why we bring this matter forth now well ahead of trial. So that witnesses are not inconvenienced, that a date certain where everybody can agree we'll be prepared as set and there will be no further continuances." "But if the Court has concerns for reasons expressed by the People or other concerns regarding the management of its calendar, I'd be more than glad to hear those and see if some accommodation can be made, as is required by [People v.] Courts [(1985) 37 Cal.3d 784], in order to allow Mr. Daly to have the opportunity to have the attorney of his choice."
The trial court said that it was "still in the middle of the murder trial." The court said that that trial would resume on Monday and "We will try that case until it's done." The court had pre-planned vacation the week before and the week after Christmas. The court believed that the murder trial would end the first week in January. The court said that it had trials set in December, January, and February. Martinez told the court that he was prepared to give the court, under seal, information "so that you can see that we're not being dilatory here." He said that he did not select these dates in late April and early May arbitrarily but that the dates were based on his experience in similar cases.
The trial court said that it "didn't go through the file and identify each reason the matter was continued [although] [i]t wouldn't probably take me very long." However, the court had left the court file at home. The court said that there was a "very legitimate basis for giving high priority to cases that involve minor victims, particularly minor victims of this type of charge." The court said that living with the case until trial was "a very heavy burden for a child to bear, whether she is a young mother or not, at 16." The court said, "The other part of this is this is not a case where the public defender's involved with the case and the defendant would like to hire someone of his choice. He has already done that. He has already hired someone of his choice. . . . Mr. Rosen is prepared. . . . He has had plenty of time to prepare. . . . He's been prepared to go to trial before today."
At this point, Rosen interjected, "There is a serious disagreement between Dr. Daly and myself in this case. And I have announced ready, and I am ready, prepared in the legal sense. Nevertheless, this disagreement exists. And I just think that if the Court denies the continuance to Mr. Martinez, the result will be that Dr. Daly is going to look for another lawyer, which may mean even longer. I really don't anticipate him staying with me."
The court denied the continuance. The court said that appellant might "choose someone else and that someone else will come in and say that they can be prepared for trial because they are not taking the next two months off, that they will be working on this case for the next two months." Martinez pointed out that the case "has been continued since May, has been set for January 31st, and this is not an eve-of-trial motion, and no one has objected to this setting, to the time that it's taken to get to January 31st, no one has interposed an objection based on the age of the victim and then suddenly – " The prosecutor said that "there's a general hardship on the victim of a case of this nature" and that the family was "living under a dark shadow of all this."
The court said, "I know Mr. Rosen is prepared to try this case. He may have a disagreement with his client, and it wouldn't be the first time an attorney tried a case that had a disagreement with his client." Martinez asked the court to set the case for the last week in March, indicating that that would be less than 60 additional days from the current setting. The court said that the court could accommodate this request, adding, "There's no question about that." The court said, "although you have declared in your declaration, you say now that you can be ready by the end of March, after you declared under penalty of perjury that the earliest you could be prepared for this is the end of April. . . . Now can you be done by March 31st?" Martinez explained that he was giving his "best estimate I can so that we can rely on a date." Martinez said that because he was being "pushed" by the court, he could "marshal the support of several of the attorneys and my staff, add another investigator to this effort, mobilize the question of experts, and can I get this done, how far can I go to meet this Court's accommodation?"
The court said that it had made it clear that it was not interested in having Martinez enter the case and having it continued until May. The court said, "All I'm hearing now is your representation in court that you could do it sooner than what you declared under penalty of perjury that you could do it. . . . And that's the credibility problem." The court again referred to Rosen and said, "He's ready. You're not." The court said "I'm going to be concerned about what impact this has lingering and malingering on the minds of the victim, the victim's family, friends. That's a significant interest, so I am going to deny the motion."
On January 13, 2005, appellant filed a motion to substitute in attorney Lawrence Biegel for Rosen. In support of the motion for substitution, Biegel included declarations from Rosen and appellant stating that they had "developed significant differences regarding the conduct of [appellant's] defense." Biegel also pointed out the "most important distinction" between his substitution motion and the motion brought by Martinez that had been denied. Biegel noted that "Martinez was leaving on vacation for two months and was requesting a continuance until at least May of 2005, five months after the currently scheduled trial date. In contrast, Mr. Biegel is not going on vacation. He is requesting a one or two month continuance." Again, the prosecutor filed opposition to the motion.
On January 20, 2005, Rosen and Biegel appeared with appellant. Biegel said that he had spoken to appellant and Rosen. He said that his motion differed from that of attorney Martinez in that he was prepared "to go as fast as I possibly can" "to give Mr. Daly the best defense possible." He said that with "all due respect to Mr. Martinez, and I think he knew it – five months was just never going to cut it, under any circumstances." Biegel said he had been working on the case "pretty constantly . . . since the first week in January." The court continued the motion for Biegel to consult with Rosen. At the continued hearing on this motion, the trial court asked Biegel when he could be prepared to try the case to determine "whether or not that fits into the schedule that we can work around." Biegel suggested a date in late March adding that that date suited the prosecutor "in terms of about 95 percent of her witnesses." Biegel also told the court that a two-week estimate for trial was more realistic than a one-week estimate. The trial court sought and received an assurance from Biegel that he could be ready to try the case during the week of March 21 with pretrial motions to be heard one week earlier. The court sought and received assurance from Biegel that he did not have the differences with appellant that had developed between appellant and Rosen. With those assurances, the trial court granted the motion for substitution and continued the matter to February 17, 2005 for discussion of the timing of pretrial motions.
Discussion
Appellant contends, "The trial court's denial of appellant's motion to substitute in attorney Martinez deprived him of his constitutional right to be represented by counsel of his choice."
A criminal defendant's right to counsel and to present a defense are among our most cherished constitutional rights. (People v. Ortiz (1990) 51 Cal.3d 975, 982; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) These rights include the right to discharge hired counsel the defendant no longer wishes to retain. (Ortiz, supra, at pp. 983, 985.) "The right to discharge retained counsel is based on ' "necessity in view both of the delicate and confidential nature of the relation between [attorney and client], and of the evil engendered by friction or distrust." ' [Citation.]" (Id. p. 983 (original brackets).) In addition to "insuring reliability of the guilt-determining process," the right to chosen counsel serves as a bulwark of liberty in another respect, reinforcing "the state's duty to refrain from unreasonable interference with the individual's desire to defend himself in whatever manner he deems best, using every legitimate resource at his command." (People v. Crovedi (1966) 65 Cal.2d 199, 206.) While a defendant may discharge appointed counsel only if that lawyer is rendering inadequate representation or there exists an irreconcilable conflict between counsel and client (Ortiz, supra, at p. 984; see People v. Marsden(1970) 2 Cal.3d 118, 123), the defendant may discharge retained counsel with or without cause. (Ortiz, supra, 51 Cal.3d at p. 983.)
This right is not absolute, however. The trial court may reject a motion to relieve retained counsel "if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice' [citations]." (Ortiz, supra, 51 Cal.3d at p. 983 .) The court "must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.' " (Id. at p. 984.) Thus, the court "must balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution." (People v. Lara(2001) 86 Cal.App.4th 139, 153 .) The "prospect of possibly impairing efficient judicial administration" must be sufficiently weighty "to overcome defendant's interest in obtaining counsel of his [or her] choice" (People v. Gzikowski(1982) 32 Cal.3d 580, 589); indeed, the disruption must be "unreasonable under the circumstances of the particular case." (Crovedi, supra, 65 Cal.2d at p. 208.)
A request for a trial continuance that is linked to an assertion of the right to retained counsel should be accommodated " 'to the fullest extent consistent with effective judicial administration.' [Citation.]" (Courts, supra, 37 Cal.3d at p. 791.) But, even where a continuance request is linked to a request to substitute counsel, the defendant has the burden of showing good cause for a continuance under Penal Code section 1050, subdivision (e). (People v. Smithey (1999) 20 Cal.4th 936, 1011.) In deciding whether the denial of a continuance linked to a request to substitute counsel was so arbitrary as to violate due process, we look to the circumstances of the case, particularly the reasons given at the time the request is denied. (Courts, supra, at p. 791.)
The trial court had before it three motions, each related to the other. One was to discharge retained counsel, one was to substitute counsel and one was to continue the trial date. The trial court acted within the scope of its discretion in denying a continuance for substitute counsel where counsel had a planned a two-month vacation and the case had multiple out-of-state witnesses and priority under Penal Code section 1048. Had the court permitted Martinez to substitute in for Rosen, the court would have had to continue the matter for investigation and for an additional two months to accommodate Martinez's vacation. This would be a disruption unreasonable under the circumstances of the case, and was not a justifiable request for delay. Although at the hearing on the motion Martinez indicated that he could try to be ready for trial by late March, the court was understandably skeptical of this assertion given the characterization of Martinez's comments in chambers and his declaration under penalty of perjury that he would need until late April or early May to be ready. Here the trial court made clear that, although the case had priority under section 1048, it would accommodate a substitution that would be less disruptive to the orderly process of a case that needed a date certain for trial due to out-of-state witnesses, expert witnesses, and trial calendar logistics. The court specifically told appellant at that time that he could "choose someone else and that someone else will come in and say that they can be prepared for trial because they are not taking the next two months off, that they will be working on this case for the next two months." Although the court's comments about Rosen's competence were irrelevant to the issues before the court, the court did not err in declining to permit Martinez to enter the case given his scheduling uncertainties.
The trial court, after denying the continuance and substitution motion, could have permitted appellant to discharge Rosen, leaving appellant unrepresented while he sought to arrange for substitute counsel who could be prepared within a reasonable period of time. However, that is essentially what happened. Appellant's very next court appearance, following the denial of Martinez's motion for a continuance, was with Biegel for his motion for substitution and continuance. The court did not insist that the matter be tried on the date set, and granted Biegel the reasonable continuance for trial preparation that he sought through his very specific supporting declarations to the court. The outcome of the court's rulings here comported with Ortiz, Crovedi, and Courts, in that the trial court permitted appellant to discharge his retained counsel, permitted him to substitute in another retained attorney who could come in to the case without an unreasonable delay, and gave that attorney a reasonable continuance under the circumstances of the case to prepare for trial. Appellant was not deprived of his constitutional rights to discharge his retained counsel and to substitute in another attorney so that he could be represented by counsel of his choice.
Defense Evidence
Before trial, appellant moved for the introduction of evidence concerning appellant's relationship with Sabrina, Sabrina's affair with a family friend, school records about T.'s appearance and behavior, as well as T.'s sexual behavior in Brazil and her pregnancy. The trial court granted these requests. The defense also wanted to introduce evidence to show that Sabrina was "extremely sensitized and vigilant to suspected child abuse." The defense also sought to introduce evidence attacking T.'s credibility by showing "prior false accusations of sexual misconduct of third parties."
Appellant contends, "Appellant's judgment must be reversed because the trial court erroneously excluded relevant defense evidence in violation of appellant's right to due process." Specifically, he contends, "The trial court erred in excluding evidence of T[.]'s prior false allegation of sexual molestation," and "the trial court erred in excluding evidence that Sabrina believed she had been molested as a child and evidence that she believed T[.] had been molested by Lisa B[.]." He further contends, "These errors require reversal singly and cumulatively."
The defense sought to introduce evidence to show "that T[.] at age 4 made a false allegation of sexual molest by Lisa B[.], Paul B[.] 's second wife after he split with Sabrina." The defense also wanted to introduce evidence "that Sabrina badgered T[.] into making this false allegation as shown in a recording Sabrina made of her interrogation of 4-year old T[.]" The defense planned to "introduce the evidence of the false allegation through testimony by Lisa and Sabrina."
At the hearing to consider the admissibility of this evidence, the trial court listened to a taped conversation between Sabrina and T. made when T. was four years old. Excerpts from the tape were read into the record, as well. Much of the tape involved Sabrina questioning T. about whether or not Lisa B., T.'s father Paul B.'s wife, had touched T.'s "pee-pee hole." Defense counsel said that three years later "at Denny's when the B[.]s were leaving to go to Arizona, T[.] sat there and looked at Lisa B[.] and apologized, and said I'm sorry that I said those things about you." Lisa B. had given a statement to the defense that she, Paul, Sabrina, and T. had met at a Denny's and that Sabrina had told her that T. had something to tell her. Lisa said that T. told her "I know you didn't do anything wrong to me" and "definitely used the words, 'I'm sorry I lied.' "
After reviewing the tape and transcript, the court said that T. had not made a false allegation of sexual abuse against Lisa B. The court said that the tape showed "a persistent resistance to the mother's effort to get something damning against Lisa. And where every opportunity is given to the child to make a report of some inappropriate touching, the fact of the matter is throughout that transcript the minor really never does. Whenever she comes close to saying something, it's apparent by either the next syllable she utters or phrase that she utters that she's somewhere else. She is not talking about Lisa molesting her." The court said that "in addition to the four year old persistently resisting the interrogation designed to elicit statements from the child against Lisa, is that her attitude during the interviews appeared innocent, naïve, and noncondemning." The court said that it was "convinced that the litigation on that issue would be focused on whether the minor ever made a statement regarding Lisa inappropriately touching her or did Sabrina create that because she wanted to hear it. It's really Sabrina's credibility, not the minor's credibility, that is put in issue there."
Prior false accusations are relevant to impeach a victim's credibility by showing a character trait for dishonesty. (Evid.Code, § 780.) "As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. (Evid.Code, § 352; [citation].) A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Here, the trial court determined that the tape did not reveal an accusation by T. of having been molested by Lisa B. The trial court ruled that "the prejudicial aspects far outweighed any probative value particularly in view of the age and apparent capacity of the child at the time, and the ambiguity of whatever statement might have been made." We agree that the wandering, inconsistent, and confused answers by T. to Sabrina's pointed interrogation simply do not amount to an accusation. Whether or not Sabrina believed T. had been molested by Lisa B., or was simply being manipulative to obtain something to use in a civil action against Lisa and Paul B. related to visitation and support is, as the trial court determined, irrelevant to T.'s credibility. That Sabrina prompted T. to apologize to Lisa years later does not change the underlying lack of an accusation.
We note that the defense sought to introduce this evidence as relevant to appellant's state of mind when Sabrina told him on the visit to Brazil that T. had accused him of molesting her. The defense wished to argue that Sabrina had told appellant about the Denny's meeting and that "from that day forward [appellant] had a belief state that T[.] was prone to making false accusations. It was that mind set which affected his behavior when confronted by Sabrina in Brazil in July of 2002. He did not believe T[.] and assumed that, based on her prior history, neither did Sabrina." Appellant did testify that when Sabrina told him of T.'s accusations, he said that T. "tells a lot of stories and lies and this was a fabrication on her part." And, as the trial court noted, substantial evidence was "presented to the jury about lies and other dishonest acts committed by T[.]"
Sabrina did not testify. The defense also sought to introduce evidence about Sabrina's belief that she had herself been molested as a child. The evidence was that in "approximately 1992, Sabrina Daly obtained a book entitled 'The Courage to Heal' in which she wrote in the margins how she had been sexually abused by members of her family when she was a child." Counsel argued that this evidence was to rebut anticipated prosecution evidence about the Child Sexual Abuse Accommodation Syndrome, specifically the helplessness aspect of that syndrome. Counsel argued, "Sabrina Daly is the least likely person in the world to have not been vigilant about sexual abuse in her family."
The court said that "The margin comments in the Courage to Heal generally deal with the mother's personal issues. . . . [I]ntroduction of her margin comments would necessarily lead to a mini-trial on whether or not the victim, the minor's mother Sabrina, was molested as a child. [¶] The relevance of any comments in that margin are far outweighed by the prejudicial impact in terms of confusing the issues, undue delay and time consumption."
Appellant argues that "it is reasonable for a jury to infer that a mother who was familiar with the experience of having been molested would be responsive to her daughter's statement that she had been . . . [and] relevant to rebut Dr. Urquiza's lengthy testimony regarding the probability that a child sexual molest victim, such as T[.], may be reluctant to disclose her molestation for 10 years due to a fear of being disbelieved." Appellant states that this evidence "was not to be considered for the truth of the matter but simply for its tendency to show Sabrina's attitude toward the possibility that T[.] was molested."
Respondent argues that this evidence was propensity evidence which could be excluded under Evidence Code section 1101, subdivision (a), in that "Sabrina's belief that she had been molested would have dictated her conduct in relation to any evidence that T[.] had been molested." Appellant counters, "Evidence of a belief is not evidence of character or a trait of character." Whether or not this evidence fits within Evidence Code section 1101, it was properly excluded by the trial court. The issue for the jury to decide was whether or not T. was telling the truth about being molested by appellant. Evidence about the Child Sexual Abuse Accommodation Syndrome is admitted for the limited purpose of evaluating T.'s behavior in delaying her report of sexual abuse. The defense was not prepared to introduce evidence that T. had any knowledge of whether or not Sabrina had been molested as a child. Thus, Sabrina's status as a victim of child sexual abuse could not have had an impact on T.'s thoughts about whether or not she would be believed if she had disclosed the molests earlier. Whether or not Sabrina had actually been molested, and the assumption that if she had been she would have been vigilant to any suspected sexual abuse of her children, would indeed have taken the trial off in an entirely different direction concerning the sexual history of someone who did not even testify. This evidence had no bearing on the probability or improbability that appellant had been falsely accused of molesting T.
Evidence Code section 1101, subdivision (a), provides in relevant part, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
As impeachment evidence, the defense sought to introduce evidence of a prior inconsistent statement by T. about her sexual activity with her boyfriend. Defense counsel represented that a proposed witness, Katie Moore, was T.'s friend in the summer of 2000 when T. was living in Sonora. Defense counsel represented that Moore would testify that she had spoken to T. over the course of that summer and that T. had said that "Jeremy was [T.]'s boyfriend, that they had slept together and then later on she said she was a virgin, and [Moore] thought those were inconsistent." Although the court did permit Moore to testify that in the summer of 2000 T. had said that she was a virgin, the court did not permit Moore to testify that T. had said that she had "slept with" her boyfriend. The trial court observed that "Sleeping with someone is a whole lot different than having intercourse."
Appellant argues that "there is no question that if T. claimed both to have had sexual intercourse with her boyfriend, and to be a 'virgin,' her veracity when it comes to matters of sexual conduct may be suspect." "In the absence of any indication T[.] was being strictly literal when she told Katie that she 'slept with' her boyfriend, it was unreasonable for the trial court to exclude the evidence because it was not explicit enough." Appellant cites People v. Rundle (2008) 43 Cal.4th 76, 128, and People v. Smith (2003) 30 Cal.4th 581, 633, as cases which implicitly recognized that the term "slept with" generally refers to having had sexual relations. However, it was not unreasonable for the trial court to recognize that a 13-year-old girl, speaking casually to her girlfriend, might not have the same understanding of that phrase that a California Supreme Court justice would. It was within the trial court's discretion to make the ruling it did as to this evidence.
There was also some discussion about the applicability of Evidence Code section 782, which provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of a complaining witness's sexual conduct, and Evidence Code section 1103, subdivision (c), which, although not applicable to a proceeding under Penal Code section 288, makes specific incidents of a complaining witness's sexual conduct inadmissible to prove consent.
The court gave a general explanation of its evidentiary rulings. The court said that "There are aspects of the case that the Court finds it difficult not to provide some evidence relating to the victim's sexuality and knowledge of sexuality." The court acknowledged, "Not every 17 year old would have knowledge of some of the things that apparently this victim is going to be talking about. And the question then is where did that knowledge come from. [¶] Well, there is a reasonable alternative in her case, and that is that her sexuality and she has engaged in that sexuality. . . . On the other hand, other aspects of her sexuality, the details of her sexual life are by [and] large irrelevant and protected. So the Court is going to limit evidence regarding sexual activity of the victim alleged in this case to the fact that she has been sexually active in her later teens, that she gave birth to a child, and that the defendant, obviously, is not the father."
Appellant argues that the evidentiary errors he urges here "singly and cumulatively" require reversal. Although we find no error, we observe that any error would not have brought about a different result here. The credibility contest between appellant and T. was lost by appellant through the introduction into evidence of the pretext call. Appellant's statements in that call, as well as his placating, cautious tone of voice during it, especially when directly asked about having sex with T. would never have been accepted by the jury as being other than an admission of wrongdoing. His repeated references in the call to having done the "wrong thing" and taking things to the "wrong extreme," and his many apologies make his testimony that he was attempting to explain to T. that he was sorry for having discussed world affairs and stocks with the child, or taken her on errands, completely incredible.
Closing Argument
Appellant contends, "Appellant's judgment must be reversed because the trial court erroneously limited defense argument to the jury."
Background
Defense counsel began his closing argument by observing that when "a child says, whether true or false, if a child says I've been harmed in any way" that there were laws in place to mandate reporting. Counsel said that he wanted to give examples "of when a kind of hysteria has taken over when a child is not telling the truth." Counsel began to describe the Salem Witch Trials. After describing these trials as a "kind of class struggle," counsel said, "And so it wasn't done out of the fact that these children were psychotic. And I believe if you recall they were in the neighborhood of 14-, 15 -, 16-year-old girls." The prosecutor objected saying, "That's not in evidence" and the court sustained the objection.
Counsel said, "The one I think everybody remembers in our history occurred a long time ago. 1692 in Salem, Massachusetts. This was not one child, but a number of children getting together and telling stories, very significant stories about people in that town doing things that were thought of as witchery or witchcraft. None of them had done these things, but for some reason, these stories were told. And they were all young ladies by the way, although I don't think that telling stories is confined to the female gender by any means because boys have done this too, and the second story I'll tell you contains a lot of boys. [¶] But the point is that, it doesn't just stop when someone makes a false allegation and that a child who might see, oh, my goodness look what I've created, would then back off and say, oh, no, I can't go farther with this. [¶] In that case, 19 people were executed, four people died in jail, and 200 people were arrested before the hysteria calmed down and people understood that these things were not true. And the historians who have done research into how this happened came to the conclusion that this was - - what was the case of this? This was based on kind of a class struggle between the accused and the accusers and money was involved and there was kind of a vindictiveness."
Counsel then transitioned to another example "closer to our life times and this involves boys, so not to pick on girls. [¶] Between 1987 and 1990, there was something in Los Angeles called the McMartin Preschool." The prosecutor objected and both counsel approached the bench. At the reported side bar conference, defense counsel argued that it was "well within the rules of final argument to be able to cite instances in history in our collective experience that demonstrate a point. And the point I'm making is that people sometimes make false accusations and they should be looked at very very carefully so as to avoid an injustice."
The court said that as to the Salem Witch Trials example, counsel had started "putting in facts that are not common knowledge." The prosecutor argued that "the facts of [McMartin] are not common knowledge." The trial court said, "I don't mind you making reference to it" but added "let me think a minute." Defense counsel said "I will try to put a sentence in that ends it and goes on." Counsel continued his argument, saying, "Let me come to the conclusion of this portion of what I want to tell you just by saying that the names Salem Witch Trial and McMartin, and there are other names in our history, tell us that at a minimum we have to be incredibly sensitized to the possibility of false allegations." Counsel went on to argue at great length the evidence which undermined T.'s credibility, including the expert testimony.
Discussion
Appellant contends that the trial court committed structural error in limiting defense counsel's argument to the jury. Appellant argues that "counsel attempted to make the simple and permissible point that the standard of proof beyond a reasonable doubt is of amplified importance where there is a danger of false and inflammatory allegations such as those at trial here. He was entitled to draw upon historical examples of verified false allegations resulting in destruction of the lives of the accused when lower standards were employed."
A criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. (People v. Marshall (1996) 13 Cal.4th 799, 854.) Closing argument "may be based on matters in evidence or subject to judicial notice. It may also refer to matters of common knowledge or illustrations drawn from experience, history, or literature. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 922, overruled on other grounds as noted in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Although a defendant may refer to other cases to demonstrate that children do fabricate claims against adults, a trial court can properly bar trial counsel from commenting on other specific cases with different facts where there is a danger that the jury will become confused with irrelevant facts. (People v. Mendoza (1974) 37 Cal.App.3d 717, 725.) In Mendoza, the defendant was convicted of committing a lewd act on a child under the age of 14. On appeal, he contended that the trial court had erred in barring defense counsel from reading two newspaper clippings about unrelated cases in which children were reported to have fabricated accusations against innocent men. (Id. at p. 725.) The Court of Appeal held that the trial court "properly denied defense counsel license to read newspaper clippings about unrelated specific crimes, hearsay material which could only confuse the jury with irrelevant facts. [Citations.]" (Ibid.)
Penal Code section 1044 vests the trial court with broad discretion to control the conduct of a criminal trial. In exercising its discretion under section 1044, a trial court must be impartial and must assure that a defendant is afforded a fair trial. When there is no patent abuse of discretion, a trial court's determinations under section 1044 must be upheld on appeal. (People v. Cline (1998) 60 Cal.App.4th 1327, 1333-1334 ; People v. Marshall, supra, 13 Cal.4th at p. 855.) An appellate court reviews rulings on the scope of argument for abuse of discretion. (Marshall, supra, 13 Cal.4th at pp. 854-855.) No abuse occurs where the trial court's ruling controls the scope of closing argument and does not preclude the defendant from making his central point. (Ibid.)
Appellant argues, "Counsel sought to convey no more than that serious consequences can flow from a single false allegation, and that the children who made the allegations were apparently normal children caught in an adult power struggle." "The limitation on defense counsel's argument, which attempted to draw on historical experience of confirmed false allegations and mistaken 'verdicts' was the final blow that left appellant utterly at the mercy of the prosecution."
Counsel made his point about serious consequences flowing from false allegations with his example of the Salem Witch Trials. Although factually quite far from the case before the jury, this historical example is well-known, as it is taught in school and has been the subject of books, plays, and movies. Counsel made his central point with his dramatic illustration of the tragic consequences of the Salem Witch Trials, and was only reined in when he began to recite details about those trials which are not well-known. The McMartin Preschool case is notorious, but whether counsel read from an article or just recited details about it, this example of an unrelated specific prosecution is so dissimilar to the case before the jury that it was within the court's discretion to curtail a recitation of its particulars. The trial court acted well within its authority and the limits on defense counsel's closing argument were not an abuse of discretion or a denial of appellant's right to present a defense.
The McMartin Preschool case was a six-year legal odyssey originating in Manhattan Beach in the late 1980s that produced no convictions. "In August 1983, a woman complained that her two-year-old son had been sodomized by a male preschool teacher. Within a year, 208 counts of child abuse were filed against seven adults. Allegations surfaced that the teachers belonged to a Satanic cult, peddled child pornography, and engaged in animal sacrifices. The McMartin trial stretched to 1990 at a cost exceeding $15 million. It was the most expensive criminal prosecution in U.S. history. Only two defendants went to trial: Peggy Buckey, who was acquitted, and her son, Ray, whose two trials resulted in hung juries, after which all charges were dropped. He was jailed for five years during the trials. [¶] The criminal defendants became plaintiffs in civil suits, charging that ABC television reporter Wayne Satz, whose sensational exclusives riveted the city, was romantically linked with child abuse investigator Kee McFarland, who was charged with abusive questioning techniques. The efforts of the defendants to recover damages foundered on the statutes of limitations and the child abuse reporting immunities." (Where the Law Was Made In L.A. (March 2003) Los Angeles Lawyer, 18, 28.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.