Opinion
B228540
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. CESAR HERNAN DURAN, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA075500)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Cesar Hernan Duran of three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) (counts 1-2, 4); one count of unlawful sexual intercourse (§ 261.5, subd. (c)) (count 3); and five counts of committing a lewd act upon a child (§ 288, subd. (c)(1)) (counts 5-9).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total prison term of 30 years four months. In counts 1, 2, and 4, the trial court imposed the upper term of eight years in each count. The trial court imposed the upper term of three years in count 3. In each of counts 5 through 9, the trial court imposed eight months (one-third the midterm).
Appellant appeals on the grounds that: (1) the trial court's exclusion of certain evidence violated his constitutional right to present evidence and his rights of due process and to a fair trial; and (2) his convictions must be reversed due to the court's failure to hold a hearing pursuant to Evidence Code section 782.
FACTS
Prosecution Evidence
In the summer of 2007, Cristina S. was 14 years old. She had a friend named Jennifer C. who introduced her to appellant. Jennifer told Cristina that appellant was a psychic. Cristina met appellant for the first time when he drove her and Jennifer to a park. There he read Jennifer's tarot cards. Appellant told Jennifer only about bad things that were going to happen to her. Appellant then read Cristina's tarot cards and told her that, by the age of 18, she would have three children, be a prostitute, and do hard drugs. Appellant also told Cristina that she would commit suicide later in life. Appellant made Cristina feel hopeless. She believed him because she believed in fortune-telling. Appellant told Cristina that he could help her.
A week later, appellant drove Jennifer, Cristina, and a boy named Christian to another park. Appellant asked Cristina and Christian to step out of the car, while appellant and Jennifer stayed inside. When Jennifer got out of the car, she told Cristina that appellant wanted her to go inside the car. Cristina sat in the front passenger seat while appellant sat in the driver's seat. Appellant read Cristina's fortune and told her something bad was going to happen to her. Appellant told Cristina that he could help her, but he needed to look at her vagina first. Cristina told him that she did not want to show him her vagina. Appellant became angry and told her that she was going to be a prostitute and have a horrible life. Cristina was scared and believed appellant. She thought these things would really happen if she did not do it. Cristina pulled her pants down to her knees, and appellant put his hands on her vagina. He looked at it and said, "Okay." Cristina felt "disgusting" and did not like it. Appellant told Cristina to step out of the car. Cristina did not tell Jennifer what had happened because "it was too humiliating."
Cristina saw appellant approximately once every three weeks at first and then more often, usually at Jennifer's house. Jennifer lived on the right side of a duplex with her parents and sister. Jennifer's two brothers lived on the left side of the duplex. The next time appellant touched Cristina was in May 2007 when he took her to the left side of the duplex and asked her to take off her pants and underwear. Appellant told Cristina that the only way he could help her was to "pass energy" through to her so that all the bad things would not happen. When Cristina told appellant she did not want to do it, he became angry. Cristina felt that she had to do what appellant wanted if she did not want her life to turn out as appellant predicted. Cristina removed her pants and underwear, and appellant removed his. He got on top of her and rubbed his penis against her vagina for five minutes. Cristina cried and appellant angrily told her she had to do it. Appellant did this on many occasions. Each time appellant rubbed his penis against Cristina's vagina, he would masturbate. Cristina allowed appellant to do this because she was scared for her life.
In July 2007, appellant went to Cristina's house to "cleanse" it because there were bad spirits in it. He explained this to Cristina's mother. He carried two eggs around the house so that the bad spirits would enter the eggs. Appellant told Cristina's mother that Cristina had to "get naked" in the shower, and appellant would do something there with the eggs. Cristina's mother refused. Cristina entered the shower with her clothes on and appellant rubbed the eggs on Cristina's body. The fact that her mother allowed appellant to cleanse the house gave Cristina more reason to believe him.
In September 2007, appellant showed Jennifer and Cristina his apartment and then took Cristina into the bedroom. Appellant told Cristina that he had to have sex with her. Although she did not want to, Cristina took off her clothes, as did appellant. He then penetrated her. Cristina told appellant that it hurt, but he "kept doing what he was doing." The sexual intercourse lasted about 10 minutes.
Cristina eventually told Jennifer everything appellant did to her. Shortly thereafter, Detective Sherry Rumsey came to Cristina's school to talk with her.
Eileen S., Cristina's mother, recalled that appellant went to her home and told her that there were bad spirits around Cristina, and he would help Cristina by cleansing her. He was at their house for approximately 30 minutes. He said Cristina would die of cancer before the age of 18. Eileen believed appellant, since she believed in psychics and fortune-telling. Eileen did not permit appellant to be alone with Cristina in the bathroom, and appellant requested that this occur on another day. However, Eileen's husband said appellant could not come back to the house. Prior to the summer of 2007, Cristina was a normal 14-year-old. During that summer, Cristina began to fear being alone in the house. She awoke at night in fear and would sleep with the lights and television on. After the summer of 2007 was over, Cristina was not terrified any longer and did not have nightmares.
Jennifer was 16 years old in the summer of 2007. She met appellant in March or April 2007 through his stepson, Julio, who dated Jennifer's friend. Appellant told Jennifer that he could read her future. Jennifer and her family strongly believed in fortune-telling. Appellant told Jennifer that she was very lonely, that she was going to die in a year, and that her mother was going to get very sick. Appellant gave Jennifer his phone number and told her he could prevent these things, and she should call him whenever she needed help. Jennifer believed that appellant was telling the truth, since she did feel lonely and her mother was getting sick.
Jennifer called appellant because she felt "really bad." They arranged to meet, and on the next day appellant took Jennifer to an apartment on Inglewood Avenue. No one was there except the two of them. Appellant told Jennifer that he could prevent her from dying, or from having bad things happen to her, but he had to "go in" her. Jennifer understood what he meant when he took her to the bedroom. He told her to take off her pants, and he took off his. Jennifer lay on the bed and covered her breasts with her arms. Jennifer turned her face away as appellant rubbed his penis against her private part. She told him she was scared because she had never had sex, and he said they had to do this because something could happen to her. Appellant did not penetrate Jennifer or ejaculate.
Appellant rubbed his penis against Jennifer's vagina about once a week for several months. During this time he was also telling her fortune, which contained only bad things. Each time, appellant's penis was hard, and he ejaculated on her thigh. Jennifer told him each time that she did not want to do it, and appellant would respond angrily that they had to. In June 2007, appellant put his penis inside of Jennifer. When Jennifer told appellant to stop because it hurt, appellant got upset and told her that the "spirit" would not want to see her cry. Appellant inserted his penis in Jennifer's vagina five times, and each time Jennifer told him, "No." Each time, appellant said that he had to do it, and anything bad that happened would be her fault. The last time appellant put his penis inside Jennifer's vagina was around August 2007.
From March to October 2007, appellant bought clothes for Jennifer and left them outside her house. Jennifer felt that appellant wanted her to be his girlfriend, which made her feel disgusting. She never asked appellant to buy her anything, never asked to borrow money from him, and never demanded money from him.
Jennifer's mother, Elsa M., knew appellant through his job at Los Ponchos restaurant. Jennifer told Elsa in March or April 2007 that she had met appellant and that appellant knew something about reading cards. Elsa noticed that Jennifer, who had been a very happy girl, became withdrawn in the summer of 2007. In October 2007, Jennifer told Elsa that appellant had touched her. Elsa contacted the police.
Two male Inglewood Police Department officers went to Jennifer's home. Jennifer was embarrassed and told them only that appellant had rubbed his "private part" against hers and did not put his penis inside her vagina. On November 6, 2007, Jennifer spoke with Detective Rumsey. Jennifer felt more comfortable talking to Detective Rumsey because she was a woman, and Jennifer gave her more details. Jennifer did not talk to anyone else about this case.
Twice during the summer, appellant drove Elsa places: one time to physical therapy, and another time to places on Hawthorne Boulevard. Appellant drove Jennifer and her brothers to Magic Mountain one time. Jennifer and appellant had telephoned each other a lot beginning in March or April 2007 when she first met him. She called him to learn her future and to obtain help. Appellant's stepson Julio also called appellant from Jennifer's house approximately three times.
Elsa never asked appellant to pay for her and her family's meals at Los Ponchos. She never asked him to buy things for her children. Elsa did not demand $5,000 from appellant and tell him that she would go to the police and report that he had raped her daughter if he did not pay. She never borrowed money from appellant. Elsa was having financial difficulties in October 2007 related to her family home. She had not paid the mortgage during the spring and summer of 2007. The house was eventually foreclosed upon, and the family was evicted.
On January 23, 2008, Inglewood Police Department Detective Gabriel Delatorre conducted a recorded interview with appellant in Spanish. The video of the interview was played for the jury. Appellant admitted having sexual relations with Cristina, but he denied that he penetrated her. Appellant said his sexual relationship with Jennifer came about because she wanted to experiment. Appellant said he could not get an erection during his first encounter with Cristina, but he did penetrate Jennifer. Jennifer told him she was 17 and one-half years old. Their relationship began in April, and they would have relations once a week. He always told her it was her decision and he was not forcing her.
Appellant told the detective that Cristina was 15 years old and had used drugs since she was 12 years old. He said that her parents sold drugs. Cristina started taking off all of her clothes at their first encounter to show him some marks. After she took off all of her clothes, appellant "decided to touch her." He did not penetrate her because he could not. He denied putting his penis close to her vagina or ejaculating on top of her. He tried to have relations with Cristina about three times, but he could not. This occurred in Jennifer's house. They tried one last time at appellant's apartment.
Defense Evidence
Martha Pineda had worked at Los Ponchos restaurant since 2004 and knew appellant from the restaurant. Pineda knew Elsa and Jennifer as customers. During the summer of 2007, Elsa and her whole family, including Jennifer, would eat at the restaurant two or three times a week. Appellant would sit with them when he was not working, and he always paid for them.
Pineda said it was defense counsel who told her what Jennifer's name was and who asked her about the summer of 2007. Otherwise, Pineda would not have been able to tell the jury when Jennifer and her family frequented Los Ponchos. Pineda knew members of appellant's family well. Pineda knew appellant as a good person.
Appellant stayed with Silvia Padilla, his older sister, for six months prior to his arrest. Padilla and her daughter, Angeline Melendez, slept in the bedroom, and appellant slept in the living room. Melendez worked at the airport from 4:00 p.m. to 12:30 or 2:00 a.m., Friday through Sunday. Appellant worked five or six days a week at Los Ponchos restaurant, from 9:00 p.m. to 2:00 a.m. He usually slept until noon or 1:00 p.m. Padilla cleaned houses. Her work was slow during the summer, and appellant did not know her schedule. Melendez usually was at home when she was not in summer school or at work. As a result of her and her daughter's schedules, Padilla did not believe it was possible for appellant to bring girls who were 15 or 16 years of age to the apartment to have sex when she and Melendez were not there. Melendez testified she was home most of the time during the summer of 2007. Her mother was usually home in the afternoons, and appellant was normally at home also.
Padilla and appellant were very close, and he was like a son to her. It would surprise Padilla to learn that appellant read tarot cards. Although Padilla's opinion of appellant as a good person would change if she found out he had sex with a girl of 14 or 16, Padilla knew the girls were lying.
Alelia Pott married appellant in March 2005, and they separated in June 2007. Pott had three children from a prior marriage. Appellant moved out because he did not get along with Pott's children. Pott's daughters never complained about the way appellant acted toward them. Appellant was always helpful to others. Pott did not believe appellant could be "sexually predatory" toward teenage girls. He is mild-tempered and not aggressive. Pott never saw appellant practice fortune-telling. Pott went to Los Ponchos about three times a week and she once saw appellant socializing with Jennifer and her family there.
Appellant testified that, in the spring of 2007, he had known Elsa for approximately 10 years. Appellant first met Jennifer during the last week of April 2007 at the apartment he shared with Pott and her three children at that time. Appellant denied that when he first met Jennifer, he acted like a fortune-teller and told her she was going to die. Appellant gave Jennifer his phone number because she told him she was Elsa's daughter. Appellant wanted Jennifer to give the number to her mother.
Three days after their first meeting, Jennifer called appellant and asked him to come to her house because her mother wanted to borrow $40. When appellant arrived, the whole family was there. Appellant gave the money to Jose, Jennifer's stepfather. Elsa said the money was for food, and she would pay it back that Friday. On Friday, Elsa asked for $60 more, which he gave her. In the spring and summer of 2007, appellant lent money to Elsa's family many times, usually in amounts of $40, $60, or $100. They never paid him back. Appellant lent them a total of about $800. When appellant asked Jennifer who was forcing her to ask him for money, Jennifer said it was her mother. Appellant was receiving about five calls a day from Jennifer, and he told her he was not going to answer her calls anymore because it had gone too far. During that summer, appellant paid for the family's dinner at Los Ponchos four times. He fed Elsa's children for two weeks when she was ill in August 2007.
Appellant also gave rides to the family because they had no car. Appellant gave the family approximately 50 rides that summer. Elsa sometimes called appellant after 1:00 a.m. to take her somewhere.
Elsa told appellant to counsel Jennifer about things in her past because Jennifer was a little rebellious and had tried to commit suicide. Appellant told Jennifer to be careful; he never told her she was going to die or that she was lonely. Jennifer asked appellant for advice about personal relationships and her relationship with her mother. Appellant did not consider himself a fortune-teller, but Elsa asked him to act like a fortune-teller. Appellant never told Jennifer and Cristina that he had powers or that they had to have sexual contact with him if they wanted to prevent harm to themselves or their family.
Appellant never took Jennifer anywhere to have sexual activity. Elsa was always at home when he went to their house, and he was never alone with Jennifer there. Appellant took only Jennifer to his sister's apartment, and only one time. Jennifer used the computer, and his niece was there. He did not engage in any type of sexual conduct in his sister's apartment. Appellant denied that he went into the other side of Jennifer's duplex to have sex with Cristina. Appellant testified that there was an "important matter" regarding the welfare of Cristina and Jennifer that caused him to go to Elsa's home in July and August 2007.
On the morning of July 24, 2007, Cristina telephoned appellant and said that there was something in her house. She gave him the address and asked him to go there. Cristina's mother invited him in. Cristina's mother said there was a spirit in the house that followed Cristina. Appellant did not perform any type of ceremony.
In August 2007, Elsa told appellant that her house was in foreclosure. In September, Elsa asked appellant for $5,000 in order to move. Elsa said if appellant did not give her the money, she would accuse him of having sex with her daughter. Jose asked appellant for money in October, and he said he would sue appellant.
Appellant was shivering with cold while he waited for Detective Delatorre to take him to the restroom at the police station. He admitted some acts of misconduct because he was nervous, cold, and very confused. He cooperated with the detective because he thought it would get him out of that place.
When appellant told Detective Delatorre that he did not deny having sex with Jennifer and Cristina, that was a lie. It was also a lie when he said they had sex beginning a year before. Everything appellant said to Detective Delatorre about sex during the police interview was a lie. Appellant did not tell the police about Jennifer's family demanding $5,000 from him to prevent sexual allegations against him because he did not "want to say that."
The parties stipulated that from April 28, 2007, to October 24, 2007, there were more than 350 calls made from Jennifer s house to appellant's cell phone, and there were more than 180 calls from appellant's cell phone to that house. The parties stipulated that the defense had an expert review the DVD of appellant's police interview, and the expert stated that the DVD was complete and not edited in any way.
DISCUSSION
I. Exclusion of Evidence
A. Appellant's Argument
Appellant contends the trial court erred by excluding evidence critical to his defense. The trial court refused to allow evidence that appellant had been involved in ongoing communications with police concerning his victims' involvement with drugs, and it excluded evidence of the victims' sexual histories. The exclusions violated appellant's Sixth and Fourteenth Amendment rights to a fair trial and to present evidence on his behalf.
B. Proceedings Below
1. Evidence of Cristina's and Jennifer's Sexual History
On March 8, 2010, the trial court considered defense counsel's motions seeking to admit evidence of Jennifer's and Cristina's sexual histories under Evidence Code section 782. With respect to Cristina, defense counsel pointed out that Cristina was obviously pregnant at the time of the preliminary hearing, and she "could very well have gotten pregnant about the time she went to the police and made her complaint" in November 2007. Trial counsel argued that her sexual history thus showed a sophistication and a lack of vulnerability on Cristina's part. It also tended to show that she may have wanted to blame the pregnancy on appellant. Counsel argued that these points showed enough to get to the next stage and have her testify out of the presence of the jury.
Evidence Code section 782 provides in pertinent part: "(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:
"(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
"(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
"(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
"(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 [of this code], the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court."
The prosecutor argued that even if Cristina had been sexually active with boys, it did not show a sophistication that would amount to a defense against the defendant molesting or raping her. Defense counsel argued that the sophistication and maturity showed that Cristina could not possibly have believed the alleged inducements and threats by appellant.
The trial court asked defense counsel if he meant that Cristina's sexual history in itself might provide a factual basis for arguing that she was mature overall, more "worldly," and could not have believed the defendant had powers to cure her and protect her. Trial counsel responded, "Right." When the court suggested that Cristina's education and whether or not she worked and other aspects of her life might all show this, defense counsel agreed that all of those things would be relevant.
The trial court denied the defense motion, stating: "Okay. I disagree with that because there are lots of immature people having sex and I don't think there's a real nexus between the two. I think much more probative might be many other aspects of a person's life, not just sex, with respect to maturity, whether or not the person has been through traumatic experiences and recovered. But I just disagree with the defense. I don't see that it's relevant. Denied."
In his motion with respect to Jennifer, defense counsel argued that there would be testimony showing she had three boyfriends, and her sexual activity with them would be relevant to her possibly alleging that appellant had sex with her. The testimony would go to Jennifer's sophistication, to her knowledge as to what acts to describe to the police, and to show that she was under pressure from her family to accuse appellant because of the sex with these other guys.
The trial court again inquired if defense counsel meant that having sex meant that Jennifer was a sophisticated, complex individual. Counsel replied, "Right." Counsel explained that Jennifer having sex with her other boyfriends, which he was not sure had occurred, would show that Jennifer had a motive to falsely accuse appellant of having sex with her. The trial court expressed a lack of understanding as to why Jennifer's fear of her family finding out she was having sex with boys would cause her to deflect the attention away from that by saying she had sex with a family friend, i.e., appellant. Counsel explained that Jennifer could say that the sex she had with appellant was not voluntary.
The prosecutor pointed out that the defense theory was speculation, and it was at odds with the defense claim that appellant was such a nice guy to Jennifer. The trial court denied the motion.
2. Evidence Regarding Drug Use
In the same pretrial proceeding, the parties discussed potential character witnesses for the defense. Defense counsel stated that appellant's sister would testify to his character as a kind person who is concerned about people, and this would tie in to testimony that appellant was reporting to Detective Islas at the end of July and August 2007 that he feared Cristina and Jennifer were getting involved in drugs. Defense counsel claimed it was relevant testimony under Evidence Code section 1102. The prosecutor argued that the evidence regarding appellant's fear the girls were using drugs was pure speculation and hearsay. The trial court ruled that the evidence that the girls were using drugs was excluded.
Evidence Code section 1102 provides: "In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)."
--------
Defense counsel also sought to introduce testimony about a drug dealer in Inglewood named Cristina Nicole Lopez who was "believed to sell or provide drugs to victims Cristina and Jennifer." The testimony would come from appellant, who allegedly called Detective Islas about this because he wanted to protect "these girls." According to defense counsel, the relevance was that appellant was not having sex with these girls but was instead worried about them and for that reason he went to the police. The detective's phone records would show calls back and forth between them, and her testimony would confirm it. The prosecutor informed the trial court that at the beginning of the case Detective Islas believed there was some drug activity on the part of Jennifer's brother. Detective Rumsey stated in a police report that Detective Islas looked into the matter and there was nothing to support it. Therefore, there was no investigation. The prosecutor argued the evidence was barred under Evidence Code section 352 because it was irrelevant.
The court elicited from defense counsel that the drug-use allegations constituted "really just character evidence" in favor of appellant. The trial court ruled that it was excluding under Evidence Code section 352 any testimony about Lopez and Detective Islas, and appellant could not introduce the detective's phone records.
Beginning on the first day of trial, defense counsel repeatedly attempted to introduce evidence of appellant's contacts with Detective Islas, and the trial court repeatedly reminded defense counsel that it had already ruled, and counsel was making the same arguments without presenting new facts. The trial court understood appellant's argument that he was concerned about the girls' welfare enough to contact the police about their drug use, and that it was therefore less likely he would have committed the alleged offenses on them. However, the evidence was more prejudicial than probative. The trial court eventually allowed counsel to ask appellant if he went to Cristina's house "to deal with some other issues, too." Counsel again tried numerous times to bring in appellant's contacts with Detective Islas during his questioning of appellant, and the trial court finally admonished counsel. Appellant was permitted to say that there was another, important reason for him to go to Cristina's house, apart from the bad spirits in the house, and that he had spoken to Cristina and her mother about the important reason.
C. Relevant Authority
Only relevant evidence is admissible. (Evid. Code, § 350.) All relevant evidence is admissible, except as otherwise provided by statute. (Evid. Code, § 351.) Relevant evidence is evidence, "including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive. [Citations.]" (People v. Garceau (1993) 6 Cal.4th 140, 177.)
Evidence Code section 352 provides an exception to the admission of relevant evidence, stating that "[t]he 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." A trial court's discretion to exclude or admit relevant evidence under the criteria of Evidence Code section 352 must not be disturbed on appeal unless there is a showing that the court used its discretion in an "'arbitrary, capricious or patently absurd manner.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Evidence Code section 1103 provides in part: "(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, . . . opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness' sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. [¶] . . . [¶] (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782."
"A defendant generally cannot question a sexual assault victim about his or her prior sexual activity. [Citation.] However, a limited exception is applicable if the victim's prior sexual history is relevant to the victim's credibility. [Citations.] In prosecutions brought pursuant to section 288, Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witness's sexual conduct. [Citation.] Evidence Code section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility. [Citation.] If, after review, 'the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted.' [Citation.] 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.' [Citation.]" (People v. Bautista (2008) 163 Cal.App.4th 762, 781-782.)
D. Evidence Properly Excluded
We conclude the proffered evidence was not relevant. Neither the evidence of appellant's alleged interest in the girls' welfare, as shown by his contacts with Detective Islas, nor evidence of the girls' sexual conduct with their boyfriends was relevant to their credibility with respect to the charges of lewd conduct and rape. Even if the evidence were relevant, the trial court properly excluded the evidence under Evidence Code section 352. The evidence was more prejudicial than probative.
The trial court elicited that the defense believed the evidence of the sexual conduct was relevant to show that the girls were sophisticated and that therefore they could not have been duped by appellant. The evidence of sexual conduct with others had no tendency to show that the girls were so worldly that they could not have believed appellant's psychic predictions, and that they were therefore clearly lying when they accused appellant of the sexual acts set out in the charges. Any link between evidence that Cristina was pregnant before trial and the purely speculative evidence (as defense counsel admitted) that Jennifer may have had sex with one of three boyfriends that she denied having was extremely tenuous. And, as the trial court pointed out, sophistication and worldliness could be shown by other means. Equally tenuous is any inference that either girl lied about appellant in order to cover up having sex with boyfriends. The potential for prejudice was apparent. Given the strong policy considerations that gave birth to rape-shield laws (see People v. Fontana (2010) 49 Cal.4th 351, 362-363, and cases cited therein; People v. Casas (1986) 181 Cal.App.3d 889, 895), evidence of prior incidents that did not involve involuntary sexual acts had only marginal relevance in the instant case, and they were not probative of Cristina's and Jennifer's credibility. The credibility exception to the rape shield laws found in Evidence Code section 782 should not "impermissibly encroach upon the rule itself and become a 'back door' for admitting otherwise inadmissible evidence." (People v. Rioz (1984) 161 Cal.App.3d 905, 919.)
Likewise, the evidence that appellant was supposedly contacting Detective Islas to prevent the girls from becoming involved with drugs had no relevance to the instant crimes or to the credibility of the accusations. Evidence that produces only speculative inferences is irrelevant evidence. (People v. De La Plane (1979) 88 Cal.App.3d 223, 244, disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 39.) This proffered evidence did not show that appellant had a consciousness of innocence as was repeatedly claimed below. The trial court properly found that the evidence had no probative value on whether or not appellant had sex and performed sexual acts on the girls, since he was not claiming that drug use affected their memories. At the same time, seeking to elicit that family members sold drugs and that the girls had used drugs from an early age would be prejudicial to the victims and their families. In addition, the evidence would have required a trial within a trial on the issue of the girls' supposed drug use, drug selling, and the involvement with drug use and selling by members of their families. Moreover, the prosecutor told the trial court that the drug-use allegations were investigated by Detective Islas and found to be baseless. Because the relevance of the evidence "was so minimal and the risk of confusing the jury so palpable," the trial court did not abuse its discretion in excluding the evidence under Evidence Code section 352. (People v. Woodward (2004) 116 Cal.App.4th 821, 832.)
We also conclude that exclusion of the evidence did not violate appellant's constitutional rights to produce evidence on his behalf and to a fair trial. "The general rule remains that '"the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice."' [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 155.) "Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; see also People v. Hawthorne (1992) 4 Cal.4th 43, 58-59.) Appellant's offers of proof to show the sophistication of Cristina and Jennifer and his concern for their welfare by his contacts with Detective Islas were tangential points in this trial. Having concluded that the trial court did not abuse its discretion under the ordinary rules of evidence, we also conclude the exclusion of the evidence did not implicate the federal Constitution. (People v. Marks (2003) 31 Cal.4th 197, 226-227.)
Finally, appellant cannot show he was prejudiced by exclusion of the evidence. The evidence against appellant was overwhelming, and he damaged his own credibility by admitting that he repeatedly lied during his police interview. Appellant confessed to having sexual contact with Jennifer and Cristina and that he knew their ages. Appellant then said on the stand that everything he had told Detective Delatorre about sex was a lie. He did not tell the detective, however, that Jennifer's family had demanded $5,000 from him under the threat that a failure to pay would result in accusations of sexual conduct. His only explanation for omitting this exculpatory evidence was that he did not "want to say that" to the detective. In sum, any error in the exclusion of the evidence was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
II. Lack of Hearing Under Evidence Code Section 782
A. Appellant's Argument
Appellant contends that the trial court erred because it failed to follow the step in Evidence Code section 782, subdivision (a)(3) that requires the trial court to examine the defendant's offer of proof and to determine if it is sufficient to order a hearing. According to appellant, the trial court found the offer of proof neither sufficient nor insufficient. He asserts that the trial court "missed the point."
B. No Error
Section 782, subdivision (a)(1) provides that "[a] written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness . . . and its relevancy in attacking the credibility of the complaining witness." (Italics added.) The motion must be accompanied by an affidavit in which the offer of proof is described, and the affidavit is to be filed under seal. It is to be unsealed by the court to determine if the offer of proof is sufficient to order a hearing outside the presence of the jury in which the complaining witness may be questioned. (Evid. Code, § 782, subds. (a)(2), (3).)
Appellant filed two motions under Evidence Code section 782: one filed on November 25, 2009, as to Cristina, and another filed on March 2, 2010 as to Jennifer. Both motions stated that an affidavit/declaration of counsel was filed under seal, and that the affidavit explained "in detail the sexual history sought to be admitted/received into evidence in this matter through cross examination of the witness, and possible direct examination of the defendant and other witnesses." This court has not been provided with any documents under seal. The record shows that defense counsel provided the district attorney with copies of both declarations. Defense counsel told the court that "the copy that goes in the file has to be under seal."
Defense counsel then revealed that his declaration for the motion regarding Cristina stated that she was pregnant and that the baby was probably due shortly after the August 2008 preliminary hearing; that she could well have become pregnant at the time she went to the police; and that the relevance of this information was to show a sophistication on her part as reflected in her decision to have a child. With respect to the motion regarding Jennifer, counsel also revealed the contents of his declaration. He told the court that there would be testimony and phone records showing that she called appellant frequently and testimony that she had three boyfriends and possibly had sex with them. Counsel asserted that the testimony about her having sex would show sophistication. Counsel said that if the court ordered Jennifer to testify outside the presence of the jury, counsel might elicit that she was under pressure from her family to report appellant. The repeated phone calls would show she was not afraid of appellant.
Although it is true that the procedure set out in Evidence Code section 782 was not strictly followed in this case, the argument on the motion, which was undertaken with the full consent and cooperation of defense counsel, did not prejudice appellant. Had the trial court merely read the declarations in chambers and denied the motions, appellant would have had less of an opportunity to present his case for the relevance of the proffered evidence. As it happens, the trial court, in denying the motions, showed that it had thoroughly considered the defense offers of proof and found them insufficient to proceed to questioning of the witnesses. The trial court clearly determined that, even if questioning of the two complaining witnesses produced the kind of information the defense was hoping to elicit, the information was not relevant to the charges in this case. The trial court assumed the defense offer of proof contained accurate information, but determined that the evidence of the girls' sexual history was not necessary to show the degree of sophistication that appellant believed would absolve him of guilt. And the proffered evidence showed only a convoluted motive for Jennifer to lie about appellant's conduct. Indeed, defense counsel stated that he had no knowledge of any sexual conduct on the part of Jennifer with her alleged three boyfriends. Appellant cannot explain how a hearing at which Jennifer and Cristina testified would have bolstered his theories of admissibility. Nothing in the record suggests that having them testify would have added relevant information to the trial court's decision to exclude the proffered evidence. Therefore, any error in not examining the offers of proof in chambers but rather airing them in a hearing was harmless.
Finally, any procedural error is harmless for the reasons we explained in the first section: the strong evidence of appellant's guilt as seen in his confession and in the victims' testimony, and his admissions that he lied repeatedly and elaborately to police.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P. J. We concur:
ASHMANN-GERST, J.
CHAVEZ, J.