Opinion
C077998
11-09-2018
THE PEOPLE, Plaintiff and Respondent, v. CLINTON DEAN GROSSE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM036209)
A jury convicted defendant Clinton Grosse of continuous sexual abuse of his stepdaughter E.D. The trial court sentenced him to six years in prison.
Defendant now contends the trial court erred in (1) allowing the People to amend the information after defendant waived his right to a preliminary hearing; (2) excluding the testimony of defendant's daughters; (3) admitting evidence of E.D.'s out-of-court statements as fresh complaints; (4) instructing the jury with CALCRIM No. 318, which allowed the jury to consider fresh complaint evidence for the truth of the matter asserted; and (5) excluding approximately six minutes from the video recording of E.D.'s police interview. Defendant further contends the prosecutor (6) committed misconduct by making certain remarks during her rebuttal closing argument.
Finding no prejudicial error, we will affirm the judgment.
BACKGROUND
Defendant married E.D.'s mother when E.D. was six years old. The couple had two daughters together, K. and J. Defendant and E.D.'s mother separated in 2008, and defendant filed for divorce when E.D. was in the 6th grade. However, E.D. continued to live with defendant most of the time until her mother sent her to live with a relative in Washington. E.D. moved to Washington in November 2008, when she was in 6th grade. The couple later reconciled and E.D. resumed living with defendant in May 2009, at the end of 6th grade. Defendant again filed for divorce in 2010, when E.D. was in 8th grade. E.D. stopped living with defendant in 2011. The divorce was finalized on April 11, 2012, four days before police arrested defendant for the crime charged in this case.
In April 2012, E.D. disclosed to her best friend S.S. that defendant molested her. S.S. was the first person E.D. confided in about the molestation. Upon S.S.'s urging, E.D. told her mother and her counselor Lori Eiler about the molestation.
At trial, E.D. admitted having trouble remembering when the sexual abuse occurred. She could not remember if it was before or after she moved to Washington. She said the abuse occurred when she lived with defendant when she was between the 6th and 7th grades and it lasted for six to 12 months. She said defendant sexually abused her one or two times a week.
According to E.D., the first act of molestation occurred when E.D.'s mother was at work and E.D.'s younger sisters were asleep in another room. While defendant and E.D. were sitting on defendant's bed watching a movie, defendant took E.D.'s hand, placed it on his penis on the outside of his pants, and squeezed E.D.'s hand.
E.D. testified about other sexual acts, although she could not remember when they occurred or how many times they happened. Defendant had E.D. stroke his penis, sometimes outside his clothes and sometimes under his clothes. He "blew air" onto E.D.'s vagina, outside her clothes. He pushed the back of her head and neck with his hand and told her to "blow air" onto his penis; sometimes defendant had pants on and sometimes he was in his underwear. Once or twice a week during the abuse, defendant had E.D. orally copulate him. Sometimes defendant ejaculated in her mouth and sometimes he ejaculated onto his stomach. On more than one occasion, defendant had E.D. sit astride him and he moved E.D. back and forth over his erect penis. Defendant ejaculated on at least one occasion during that type of sexual act. During a boating trip, defendant gave E.D. beer, French kissed her, and put his finger in her vagina. Defendant stopped when E.D. complained that it hurt. Defendant sometimes gave E.D. a few dollars after a sexual act and told her to keep it a secret.
In the last sexual encounter, defendant had E.D. orally copulate him and he ejaculated in her mouth. E.D. was in 7th grade. Defendant gave E.D. money and said, "this was wrong."
E.D. testified that at the time of the abuse, she did not know it was wrong. She did not tell anyone about the abuse because defendant instructed her not to tell, she was afraid her mother would be angry with her, she did not want anyone to know and think badly of her, and she was scared defendant would hit her. Defendant had previously hit E.D. for other reasons.
Paradise Police Officer Patrick Feaster interviewed E.D. the same day E.D. disclosed to Eiler. Defendant played the videotaped interview at trial. Lieutenant Steven Rowe interviewed E.D. two days later. Defendant played a video recording of Lieutenant Rowe's interview with E.D. at trial, except for the last approximately six minutes excluded by the trial court. Butte County Children's Services social worker Lexi Jones conducted a Child Abuse Response Team (CART) interview with E.D. E.D.'s CART statements were consistent with her statements to Lieutenant Rowe.
Testifying as an expert, Eiler explained that E.D.'s flat affect as she discussed the molestation was consistent with the demeanor of other sexual abuse victims Eiler had encountered. Eiler said victims of continuous sexual abuse may describe events inconsistently because when there are many instances of abuse the victim may not remember things in a linear fashion.
Defendant testified at the trial. He denied sexually abusing E.D. and offered various explanations for E.D.'s accusations. He said E.D.'s mother was extremely vindictive, she used the children against him, and she was capable of manipulating E.D. Defendant added that E.D. fabricated the sexual abuse allegation because she was hurt by his repeated refusal to let her live with him after the 2010 separation and because he would not let her have money from a trust fund. Defendant said he did not let E.D. live with him because she had lied about him to her mother and vice versa.
E.D. denied asking to live with defendant after defendant and E.D.'s mother separated. Defendant's father testified, however, that before she accused defendant of molestation, E.D. asked to live with defendant several times. Defendant's father further testified that E.D. twice asked for money from a savings account he opened for E.D., and she was upset when he denied her requests. According to defendant's father, E.D. accused defendant of sexual abuse not long after her second request for money was denied.
Defendant also presented evidence of an incident in 2013 when E.D. took pens out of another girl's backpack and lied about it. The other girl and her mother testified that E.D. exaggerated stories and told lies. E.D. admitted previously exaggerating a story to make it sound more dramatic and telling an adult something because she thought that was what the adult wanted to hear, but she said she told the truth to the police. The other girl and her mother also testified about E.D. watching pornography on their home computer, an assertion E.D. denied at trial.
Defendant presented Dr. Bradley McAuliff, an expert on suggestibility in forensic interviews and child memory, who criticized the way the police interviewed E.D. Dr. McAuliff said studies showed that up to 60 percent of children were willing to falsely implicate a known innocent person when a parent encouraged them to do so.
The jury convicted defendant of continuous sexual abuse. (§ 288.5, subd. (a).) The trial court sentenced him to the low term of six years in prison.
Undesignated statutory references are to the Penal Code.
Additional background is included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant claims the trial court erred in granting the People's motions to amend the information to expand the time period when the charged offense allegedly occurred. He argues it was error because defendant waived his right to a preliminary hearing based on the allegations in the original information.
A
The People filed a complaint charging defendant with one count of continuous sexual abuse of E.D. (§ 288.5, subd. (a).) Defendant and the People waived a preliminary hearing and the complaint was deemed the information. Thereafter, on the eve of trial, the People moved in limine to amend the information, seeking to extend the outer range of the criminal acts from November 15, 2008, to June 15, 2009. The trial court asked defense counsel if she objected to the amendment, and granted the People's motion when defense counsel voiced no objection. At the same hearing, the prosecutor indicated the information should read "three or more acts of substantial sexual conduct or three or more lewd or lascivious acts" to be consistent with the jury instructions for the charged offense. The trial court said it would take up that issue the next court day.
The next court day was the first day of trial. Before voir dire concluded, the People moved to amend the information to state that defendant did "unlawfully engage in three or more acts of substantial sexual conduct . . . or three or more lewd and lascivious acts" instead of "unlawfully engage in three and more acts of substantial sexual conduct . . . and three and more lewd and lascivious acts." Defense counsel again voiced no objection to the amendment, and the trial court granted the People's motion.
On the fifth day of trial, after the People rested their case and after the prosecutor cross-examined defendant, the prosecutor moved to amend the information once again based on E.D.'s trial testimony, to show that the alleged criminal acts ended on June 15, 2010, instead of June 15, 2009. Defense counsel objected that the People should have known, before trial, when the alleged misconduct occurred. Defense counsel noted the jury would be instructed pursuant to CALCRIM No. 207 that the criminal acts need not occur on the dates alleged, and thus no amendment of the information was needed. The trial court allowed the People to amend the information to conform to proof over defendant's objections.
B
Defendant did not preserve his appellate claim regarding the first two amendments to the information because he did not object to those amendments at trial. (People v. Fernandez (2013) 216 Cal.App.4th 540, 555; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056.) As to the third amendment, changing the outside date to June 15, 2010 to conform to proof, the trial court did not abuse its discretion in permitting the amendment. (People v. McQuiston (1968) 264 Cal.App.2d 410, 417-418; People v. Wilder (1955) 135 Cal.App.2d 742, 749; People v. Lachuk (1935) 5 Cal.App.2d 729, 730; People v. Anthony (1912) 20 Cal.App. 586, 590-591 (Anthony); see also In re Application of Davis (1936) 13 Cal.App.2d 109, 112.)
Due process requires that the person accused be informed of the nature and cause of the charges so he or she has a reasonable opportunity to prepare and present a defense. (People v. Peyton (2009) 176 Cal.App.4th 642, 657 (Peyton).) A variance in pleadings is not material unless it misleads the accused. (Id. at p. 659.) And an accusatory pleading is not insufficient based on a defect of form that does not prejudice a substantial right of the defendant. (§ 960; Peyton, supra, 176 Cal.App.4th at p. 659.) Section 1009 authorizes the trial court to permit an amendment of the information for any defect or insufficiency at any stage of the proceedings. But an information may not be amended to charge an offense not shown by the evidence taken at the preliminary examination. (§ 1009.) The trial court may grant "a reasonable postponement, not longer than the ends of justice require" if the substantial rights of the defendant would be prejudiced by an amendment. (§ 1009.) Whether the People should be permitted to amend the information is within the sound discretion of the trial court. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)
Accordingly, when a preliminary hearing is waived, the People may not amend the information to charge additional crimes that were not charged in the complaint. (People v. Rogers (2016) 245 Cal.App.4th 1353, 1361; Winters, supra, 221 Cal.App.3d at pp. 1007-1008; Peyton, supra, 176 Cal.App.4th at pp. 652-655.) At the same time, where the date of the offense is not "a material ingredient of the offense charged," amending an information to change the date of the offense does not affect the substantial rights of the defendant nor prejudice the defendant. (Anthony, supra, 20 Cal.App. at p. 591.) In fact, "[t]he precise date on which an offense was committed need not be stated in an accusatory pleading unless the date is material to the offense [citation], and the evidence is not insufficient merely because it shows the offense was committed on another date." (Peyton, supra, 176 Cal.App.4th at p. 660; see § 955.)
Unlike in Winters, a case defendant claims is factually parallel to this one, the People did not amend the information to add a new charge. The information and amendments thereto contain the same charge involving the same victim, namely one count of continuous sexual abuse in violation of section 288.5, subdivision (a). The time frame of the alleged sexual abuse changed, but that change is not material because it did not alter the fact that E.D. was under the age of 14 years at the time of the alleged offense and because defendant did not present an alibi defense. (See People v. Garcia (2016) 247 Cal.App.4th 1013, 1022-1023; People v. Amy (1950) 100 Cal.App.2d 126, 127-128; cf. People v. Obremski (1989) 207 Cal.App.3d 1346, 1354.) Defendant denied any misconduct whatsoever, making the time frame when the molestation occurred immaterial. Moreover, defendant did not assert at trial that he needed a continuance or needed to present additional or different evidence as a result of the amendments.
Defendant argues that without the amendments he could have presented a stronger argument that E.D. changed her story about when the alleged molestation occurred. But the jury could already conclude from the evidence that E.D.'s recollection of when the molestation occurred was inconsistent. For example, E.D. testified at trial that the molestation occurred between the 6th and 7th grades, whereas she told Lieutenant Rowe it occurred between the end of 5th grade and the beginning of 6th grade. Defendant's trial counsel vigorously challenged E.D.'s credibility. She urged the jury to carefully assess E.D.'s credibility and to look for corroborating evidence. There is no showing that the amendments caused prejudice.
II
Defendant next contends the trial court erred in excluding the testimony of his daughters K. and J.
A
The People moved in limine to exclude testimony from K. and J. that defendant did not molest them, arguing such evidence was irrelevant and inadmissible under Evidence Code section 352. Defendant's trial counsel countered that the evidence was relevant to whether defendant molested E.D. In addition, she argued it was uncommon for a perpetrator not to victimize everyone in the household. The prosecutor responded that Evidence Code section 1108 authorized the admission of uncharged sexual misconduct evidence but a denial of molestation was different. The prosecutor said she was aware of no expert testimony that a perpetrator typically molested all children in a home. The trial court deferred ruling on the motion, saying it was inclined to exclude the evidence but wanted to review the videotaped interviews of K. and J. and hear further argument before ruling. The trial court said it did not have a sense of K. and J.'s ages or credibility.
K. and J. were eight and 10 years old at the time of the trial. They were two or three and four or five years old when defendant molested E.D.
On the third day of trial, the trial court asked whether defendant still intended to call K. or J. Defendant's trial counsel said she understood the trial court had excluded that evidence and defendant would instead ask Lieutenant Rowe about K. and J. The trial court replied, "Okay. That was the Court's ruling, and so we don't need to address those two witnesses, they are not going to be called."
B
We review a trial court's decision to exclude evidence for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 745; People v. McAlpin (1991) 53 Cal.3d 1289, 1310, fn. 15 (McAlpin) [Evidence Code section 352 ruling].) We will not disturb the trial court's decision except on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Peoples, at p. 745.) We presume that a judgment or order of the trial court is correct, all intendments and presumptions are indulged to support it when the record is silent, and error must be affirmatively shown by the appellant. (People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Tang (1997) 54 Cal.App.4th 669, 677.) In addition, under Evidence Code section 354, a judgment cannot be reversed based on erroneous exclusion of evidence unless the error resulted in a miscarriage of justice and it appears in the record that the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof or by any other means.
While the trial court tentatively indicated that the evidence from K. and J. was irrelevant, the record before us and defendant's appellate brief do not show the basis for a ruling by the trial court regarding K. and J.'s testimony. Thus defendant fails to affirmatively demonstrate that the trial court abused its discretion in excluding the evidence.
Defendant contends K. and J. would have testified they never saw anything inappropriate between defendant and E.D. But he fails to cite the portion of the record indicating this, and we do not see it in the record. We need not consider factual assertions made without citation to the record. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.)
Defendant also argues K. and J.'s testimony was admissible as lay opinion concerning defendant's good character and lack of deviant behavior. Evidence Code section 1102 provides that evidence of a criminal defendant's character or trait in the form of an opinion is admissible if such evidence is offered by the defendant to prove his conduct in conformity with such character or trait when it is relevant to the charge. (Evid. Code, § 1102, subd. (a); McAlpin, supra, 53 Cal.3d at p. 1305.) In a child molestation case, the fact that the defendant is not a sexual deviant is a relevant character trait and the defendant may prove such character trait by lay opinion testimony. (McAlpin, at pp. 1305-1310.) A witness's opinion about the defendant's character based on the witness's observation of defendant's conduct is admissible; testimony about specific acts of non-molestation is not. (Id. at p. 1309-1310.) Further, the trial court has discretion to exclude the opinion testimony under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues or of misleading the jury. (Id. at p. 1310, fn. 15.)
Defendant forfeited his Evidence Code section 1102 claim by not raising it in the trial court. (People v. Jones (2017) 3 Cal.5th 583, 604; People v. Fauber (1992) 2 Cal.4th 792, 854.) In any event, nothing in the record shows that K. and J. would render an opinion about defendant's character or trait as opposed to defendant's conduct on specific instances. But defendant did present evidence, through Lieutenant Rowe, that K. and J. said defendant did not sexually abuse them. According to the lieutenant, he spoke with K. and J. and the police had no information that K. and J. were being abused. Accordingly, there is no showing of prejudice.
III
Defendant also argues the trial court erred in admitting evidence of E.D.'s out-of-court statements to her friend S.S. and to Eiler as fresh complaints.
When a victim delays disclosure, "[a]dmission of evidence of the circumstances surrounding [the] delayed complaint, including those that might shed light upon the reason for the delay, will reduce the risk that the jury, perhaps influenced by outmoded myths regarding the 'usual' or 'natural' response of victims of sexual offenses, will arrive at an erroneous conclusion with regard to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 761-762 (Brown).) "The jury may consider the evidence 'for the purpose of corroborating the victim's testimony, but not to prove the occurrence of the crime. [Citation.]" (People v. Manning (2008) 165 Cal.App.4th 870, 880 (Manning).) However, "only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule." (Brown, supra, 8 Cal.4th at p. 760.)
A complaint need not be made promptly or be volunteered to be admissible as a fresh complaint. (Brown, supra, 8 Cal.4th at pp. 749-750, 763.) Rather, the timing of a complaint and the circumstances under which it was made are factors which are relevant in assisting the trier of fact in assessing the significance of the victim's statements together with all of the other evidence presented. (Id. at p. 763.)
Here, the People moved in limine to admit evidence, under the fresh complaint doctrine, that E.D. disclosed the molestation to her friend S.S. and to her counselor Eiler. Defendant opposed the motion, arguing the complaints were not fresh and the evidence was hearsay. Upon defendant's request, the trial court deferred ruling on the People's motion.
The People called S.S. as their first witness. On direct examination, S.S. testified about a conversation she had with E.D. in April 2012. According to S.S., E.D.'s whole attitude changed during the conversation. E.D. became really quiet and her voice became muffled, which S.S. said was completely out of character for E.D. When S.S. began to describe what E.D. told her, defense counsel objected on the ground of hearsay.
At a sidebar discussion, the prosecutor argued S.S. could testify about the fact and nature of E.D.'s statement under the fresh complaint doctrine because E.D.'s credibility was at issue. Defendant's trial counsel responded that the statement was hearsay and E.D. could testify about any complaints she made. The trial court ruled that S.S. could testify about the general statement made by E.D., without any specifics. S.S. then testified regarding the general nature of, and circumstances surrounding, E.D.'s report to S.S. S.S.'s testimony describing the general nature of, and circumstances surrounding, E.D.'s report to S.S. did not exceed the scope of the fresh complaint doctrine. (Brown, supra, 8 Cal.4th at p. 760.) The trial court did not abuse its discretion in allowing that testimony.
E.D. testified after S.S. E.D. testified, without objection, that she told S.S., her mother, her counselor and then police about the molestation by defendant.
Eiler then testified that in April 2012, E.D. disclosed the sexual molestation by defendant. Eiler recounted the statements E.D. made to her and described E.D.'s affect during the disclosure. Unlike S.S., Eiler recounted the details of E.D.'s report. However, any error in admitting Eiler's testimony under the fresh complaint doctrine is harmless. E.D. had already testified about the sexual acts the defendant committed upon her in detail and she testified about disclosing the abuse to Eiler and others before Eiler testified. Thus, the jury did not have to rely on E.D.'s secondhand statements to Eiler but was able to hear from E.D. directly and judge E.D.'s credibility. Eiler's testimony about what E.D. reported was consistent with E.D.'s testimony. It is not reasonably probable that defendant would have obtained a more favorable result had Eiler been precluded from testifying about the details of E.D.'s report. (See also People v. Blacksher (2011) 52 Cal.4th 769, 818, fn. 29; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526-1527; see also Manning, supra, 165 Cal.App.4th at pp. 880-881.)
IV
Defendant further contends the trial court erred in instructing the jury with CALCRIM No. 318 because the instruction allowed the jury to consider fresh complaint evidence for the truth of the matter asserted.
The trial court reviewed the jury instructions to be given with counsel. Defendant did not object to giving the CALCRIM No. 318 instruction. The trial court instructed the jury, pursuant to CALCRIM No. 318 as follows: "You have heard evidence of statements that a witness made before trial. If you decide that the witness made those statements, you may use those statements in two ways: [¶] One, to evaluate whether the witness's testimony in court is believable; [¶] And two, as evidence that the information in those earlier statements is true."
Defendant does not argue the evidence did not support giving the CALCRIM No. 318 instruction. Such a contention would lack merit because the trial court admitted E.D.'s statements to Lieutenant Rowe, in part, as prior consistent and inconsistent statements. (See People v. Friend (2009) 47 Cal.4th 1, 41.) Defendant argues instead that while CALCRIM No. 318 correctly states the general rules governing the jury's consideration of a witness's prior statements, it is incorrect when fresh complaint evidence is admitted. But " ' " ' "a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested an appropriate clarifying or amplifying language." ' " ' " (People v. Tuggles (2009) 179 Cal.App.4th 339, 364, italics omitted.) Defendant forfeited his challenge to CALCRIM No. 318 because he did not object to the instruction in the trial court and did not seek to modify the instruction.
A defendant may request an instruction on the limited purpose for which fresh complaint evidence was admitted. (Manning, supra, 165 Cal.App.4th at p. 880.) The trial court must give the limiting instruction upon request. (Ibid.) However, the trial court has no sua sponte duty to give the limiting instruction absent a request. (Brown, supra, 8 Cal.4th at p. 757; Manning, supra, 165 Cal.App.4th at p. 880.) Defendant did not request a limiting instruction and thus the trial court had no duty to give one.
Anticipating this result, defendant claims his trial counsel was ineffective for failing to object to the CALCRIM No. 318 instruction or to request a proper instruction. To establish ineffective assistance of counsel, defendant must prove (1) that his trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury); Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either of those components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington, supra, 466 U.S. at p. 687 .)
We review trial counsel's performance with deferential scrutiny, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and recognizing the many choices that attorneys make in handling cases and the danger of second-guessing an attorney's decisions. (Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, at p. 689.) We accord great deference to counsel's tactical choices. (People v. Mickel (2016) 2 Cal.5th 181, 198.) "It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)
Defendant's trial counsel was not asked for a reason for not requesting a modified CALCRIM No. 318 instruction or a limiting instruction for fresh complaint evidence. However, her closing argument suggests a rational tactical purpose for the lack of objection or request. As we have explained, E.D. gave inconsistent statements about when the sexual abuse occurred. Defense counsel could have wanted the jury to consider E.D.'s out-of-court statement that the molestation occurred when she was in the 6th grade so that defense counsel could capitalize on the inconsistencies in E.D.'s story, call her credibility into question and allow the jury to conclude that E.D.'s accusation was false because she was in Washington for most of her 6th grade year.
Defendant also fails to show prejudice. The jury was able to judge E.D.'s credibility without relying on her out-of-court statements. Her testimony that defendant sexually abused her, and about the types of sexual acts defendant committed, was consistent with her out-of-court statements. In addition, the prosecutor did not argue that the jury should consider E.D.'s out-of-court statements for the truth of the matter asserted. Instead, the prosecutor's case was based on E.D.'s trial testimony. Defendant's ineffective assistance claim lacks merit.
V
Defendant also argues the trial court erred in excluding the last six minutes of E.D.'s videotaped interview with Lieutenant Rowe.
A
Defendant sought to play a video of E.D.'s interview with Lieutenant Rowe at trial, arguing it was relevant to E.D.'s credibility. The videotaped interview was in two parts marked as exhibits B and C. The People objected on hearsay grounds and argued that the video should be redacted if defendant intended to use it for impeachment. The trial court said it needed to see the video before making a ruling.
The trial court further discussed exhibits B and C with counsel during E.D.'s cross-examination. The prosecutor again objected on hearsay grounds and said the video had to be redacted if defendant wanted to use it as evidence of prior inconsistent statements. Defense counsel offered the video as prior inconsistent statements and to show E.D's demeanor which related to her credibility. The trial court said it was inclined to exclude the video under Evidence Code section 352 as too time consuming and because the need for the video was not apparent to the trial court. Defense counsel then explained that E.D. was laughing and joking at the end of the videotaped interview, her demeanor at the interview differed from her demeanor on the stand, and the probative value of the video outweighed any prejudice. The trial court again deferred ruling.
The trial court took up the issue of exhibits B and C again on the third day of trial. Defense counsel argued exhibit C was relevant and it was important for the jury to see E.D. giggling, laughing and being flirtatious after she recounted the sexual abuse. The prosecutor argued the portion of the video after E.D.'s mother entered the room was not relevant and did not contain inconsistent statements because E.D. and her mother were discussing irrelevant matters. The trial court ruled the video was admissible as evidence of prior consistent and inconsistent statements and was relevant to E.D.'s credibility. The trial court said the video would be played in its entirety.
However, after the defense played exhibit B and upon further objection by the prosecutor that exhibit B showed E.D. laughing and flirting and exhibit C contained a discussion of irrelevant and prejudicial child custody issues, the trial court concluded there was no discussion with E.D. about the molestation in exhibit C and excluded that evidence. The trial court said it exercised its discretion under Evidence Code section 352, finding the probative value of exhibit C was substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of misleading the jury or confusing the issue. The trial court further found that the purpose defendant sought to serve in playing exhibit C had been served.
B
" 'A trial court's exercise of discretion in admitting or excluding evidence [under Evidence Code section 352] 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. Thuss (2003) 107 Cal.App.4th 221, 234 (Thuss).) After reviewing the portion of the videotaped interview which was played at trial and that which was excluded, we conclude the trial court did not abuse its discretion in excluding exhibit C. Nor did the exclusion violate defendant's constitutional right of confrontation or right to present a defense.
In exhibit C, Lieutenant Rowe talked with E.D.'s mother about future child custody issues, arrangements for CART interviews with E.D. and her sisters, and how to contact E.D.'s mother. Defendant does not contend that those issues are relevant to his defense. Exhibit C does not contain any consistent or inconsistent statement by E.D. The only statements E.D. made in exhibit C did not relate to the molestation. Exhibit B shows E.D.'s demeanor while answering the lieutenant's questions and when her mother joined them after the conclusion of E.D.'s interview, including E.D. giggling or laughing during portions of her interview. Exhibit C shows E.D. laughing to a lesser extent than in exhibit B. Because the probative value of exhibit C was limited and defendant had already presented evidence of E.D.'s demeanor by playing exhibit B, it was not error for the trial court to exclude exhibit C. (People v. Virgil (2011) 51 Cal.4th 1210, 1252, 1273; People v. Ardoin (2011) 196 Cal.App.4th 102, 117-123 [no abuse of discretion and no violation of defendants' right to confront witness where evidence challenging witness's credibility and character was cumulative]; Thuss, supra, 107 Cal.App.4th at p. 234 [no abuse of discretion to exclude cumulative evidence regarding witness's credibility].) Because the evidence was cumulative, defendant also cannot show its exclusion prejudiced him. (People v. Foster (1926) 79 Cal.App. 328, 334.)
VI
Defendant further argues the prosecutor committed misconduct by appealing to the jurors' sympathy and asserting a personal belief in defendant's guilt.
Defendant's trial counsel argued to the jury that E.D. did not act like a victim. She said E.D. was "unattached to her words," appeared to have no interest in what she was saying and seemed like she was reciting a story. Addressing defense counsel's comments, in rebuttal the prosecutor reminded the jury of the expert testimony regarding detachment as a coping mechanism for sexual abuse victims. The prosecutor then said, "I'd also like you to think something about maybe in your own life that might help. If you've ever lost a loved one, somebody close to you. And right away when that first happens, trying to talk to somebody else about it and describe your loss is hard. You may tear up. You may get quiet. You may get choked up. Everybody handles that differently, too. But as time goes on and years go by, talking about that loss becomes easier." Defendant argues the prosecutor's rebuttal comments were an attempt to appeal to jurors' fear and sympathy.
In her closing statement, defendant's trial counsel outlined 10 things which she said did not make sense in the People's case. In rebuttal, the prosecutor said, "Defense gave you [10] reasons to kind of question this. I don't think those reasons add up at all." Defendant says the prosecutor's remarks expressed her personal belief why the defense was wrong and defendant was guilty.
Defendant did not object to the closing argument remarks by the prosecutor which he now asserts constitute misconduct. He did not ask the trial court to admonish the jury regarding the challenged remarks. He has thereby forfeited his prosecutorial misconduct claims. (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Panah (2005) 35 Cal.4th 395, 462.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.) By failing to object at trial, defendant did not give the trial court an opportunity to address his objections and remedy any resulting prejudice.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
DUARTE, J.