Opinion
A167200
03-18-2024
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL GUARCASTOL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. FCR346362)
STREETER, Acting P. J.
A jury convicted defendant Victor Manuel Guarcastol of child sex offenses, and the trial court imposed a lengthy prison sentence. On appeal, Guarcastol contends the court erred by ruling he could not cross-examine the child's mother about whether she expected immigration benefits in what is known as the "U visa" program based on her cooperation in Guarcastol's prosecution. We agree that, on this record, applying the reasoning we recently set forth in Castaneda-Prado, supra, 94 Cal.App.5th 1260, the court's ruling violated Guarcastol's right to confront a witness against him and the error was not harmless. We will therefore reverse and remand for a new trial.
A U visa is "a type of visa that can provide legal status for victims of certain crimes who assist in the investigation of those crimes." (People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1267 (Castaneda-Prado); see id. at p. 1267, fn. 1; 8 U.S.C. § 1101(a)(15)(U).)
I. BACKGROUND
A. The Evidence Presented at Trial
1. The Prosecution's Case
N.M. was born in 2011. As a young child, she shared a bed with her mother, M.V., and her mother's boyfriend, Guarcastol, whom she considered her father. A.G., a son born to M.V. and Guarcastol, also shared the bed.
M.V. worked the night shift at a Subway store for about five years, before switching to the morning shift in 2019. While she was at work, Guarcastol watched both children. N.M. testified that Guarcastol began sexually abusing her while M.V. was out of the home.
The first time Guarcastol sexually abused N.M., she was four or five years old. Guarcastol put his hand on N.M.'s buttocks, with skin-to-skin contact, and began moving his hand around. N.M. did not tell anyone what happened because Guarcastol said he would cut her hand if she did.
When N.M. was seven years old, Guarcastol picked her up and carried her to the bed. He touched her breasts. N.M. did not tell anyone because Guarcastol "still said he would cut my hand."
Guarcastol began using his penis to penetrate N.M.'s vagina. She estimated he did so about 50 times, "[l]ike daily." Guarcastol would carry N.M. to the bed and get on top of her while neither of them wore any clothes. N.M. could feel Guarcastol's penis was hard as he was "shaking" it and "doing it super fast." It felt "weird." Eventually, Guarcastol would slow down and then stop before going to the bathroom. The last time Guarcastol did this to N.M. was when she was eight years old.
During these acts, Guarcastol's penis also touched N.M.'s buttocks. On multiple occasions, Guarcastol also touched N.M.'s vagina with his hands.
One night when N.M. was eight years old, she saw Guarcastol doing the same thing to her mother that he had done to her. N.M. tried to go to sleep, but she heard noises and saw Guarcastol and M.V. on the bedroom floor. They were both naked, and Guarcastol was "doing it really fast." N.M. felt "pretty weird." The next morning, N.M. told her mother that Guarcastol had done the same thing to her.
M.V. testified she had sexual intercourse with Guarcastol on the bedroom floor during the night of July 9, 2019. Although N.M. was in the bedroom, M.V. believed N.M. was asleep. The next morning (July 10, 2019), N.M. told M.V. that she had heard Guarcastol and M.V. having sex. N.M. then told M.V. what Guarcastol had done to her. M.V. screamed and cried. She then took N.M. to the hospital.
On July 10, 2019, Lisa Lewis-Javar, a forensic nurse, conducted a sexual assault medical exam ("SART exam") of N.M. The exam showed N.M. had an anal tag (excess tissue) and had immediate dilation of her anus, both of which Lewis-Javar testified were "concerning" findings. Lewis-Javar testified the anal tag could result from an injury to the anus that healed in a tag-like formation. The anal dilation could be caused by chronic penetration.
Lewis-Javar collected swabs from N.M.'s vagina and anus. No male DNA was found on the vaginal swab, while one of the anal swabs had potential trace male DNA. But the results on the anal swab were inconclusive, and the level of any DNA was too low to continue processing the samples, because it would not have been possible to establish a DNA profile.
Also on July 10, 2019, N.M. was interviewed at the Fairfield Police Department. During the forensic interview, N.M. reported Guarcastol's sexual abuse of her. A video recording of the interview was played for the jury.
An expert on Child Sexual Abuse Accommodation Syndrome ("CSAAS"), Dr. Anna Washington, testified about common misconceptions that people have about the way in which a sexually abused child would respond. Dr. Washington testified a victim of such abuse may have a desire to maintain secrecy, may feel helpless, may wish to accommodate the abuser, and may make delayed or unconvincing disclosures. Dr. Washington testified delays in disclosure are especially common with younger victims.
2. The Defense Case
On July 10, 2019, Fairfield Police Officer Travis Whipple spoke with M.V. about N.M.'s physical and medical history. The officer asked M.V. if she had noticed any redness or visible trauma to N.M.'s genitals. M.V. said that she had not. M.V. also told the officer that, when N.M. had a physical exam about six months earlier, the doctor asked N.M. whether she had ever been touched in an inappropriate manner, and N.M. responded that she had not. Earlier in the trial, when M.V. was asked about these statements to Officer Whipple, she stated she had not checked N.M.'s genitals to see if there was redness or trauma, and she denied telling the officer that she had done so. M.V. also denied that N.M. told her doctor that no one had touched her inappropriately.
Also on July 10, 2019, prior to N.M.'s forensic interview, Investigator Kathryn Lenke asked N.M. a few questions to try to establish a timeline. Investigator Lenke asked N.M. when was the last time Guarcastol had abused her. N.M. initially said she could not remember but that it was a long time ago. Investigator Lenke then asked N.M. if anything happened a few months prior while she was in the first grade, in kindergarten, or before kindergarten, and each time N.M. responded, "no." When Investigator Lenke again inquired as to the timeline, N.M. said that the abuse occurred when she "didn't have no school," and she responded affirmatively when the investigator asked if the abuse happened when N.M. was "really little."
Nicole Yadon, a nurse with expertise in forensic SART exams, reviewed photos and reports from N.M.'s July 10, 2019 exam and from a follow-up exam that was conducted on July 16, 2019. Yadon testified that an anal tag can be caused by abuse or by a normal variant such as constipation, diarrhea, hemorrhoids, or ineffective hygiene. Yadon noticed N.M. had a hygiene issue, such that there was a buildup of smegma around her vaginal area. Yadon testified that having a smegma condition could correlate to having an anal tag. Yadon also testified constipation could have caused N.M.'s anal dilation. Yadon testified she would expect to see some type of injury on a child who recently had sexual intercourse with an adult.
Dr. William O'Donohue, an expert on child sexual abuse investigation, testified about criticisms of the Child Sexual Abuse Accommodation Syndrome (CSAAS) theory in the scientific literature. Dr. O'Donohue testified that CSAAS cannot be used to establish whether an allegation of abuse is true or false. Dr. O'Donohue testified that a parent's repeated questioning, along with a child's directly witnessing events, could suggest to a child that something similar is happening to them. Dr. O'Donohue testified that it is unusual for a victim of child abuse to compare and use as a framework for their experience a sexual interaction of their parents. Dr. O'Donohue testified that post-traumatic stress disorder (PTSD) is the most common diagnosis for children who have been sexually abused.
Trinie Castelan, who lived in the same apartment complex and helped to babysit for N.M. and A.G., never saw Guarcastol act inappropriately toward N.M. Castelan testified N.M. would not always listen to her. On one occasion, Castelan told N.M. to lower the volume on the television, and N.M. responded, "[m]y mom said I don't have to listen to you, and I'm going to call the police and say you spanked me."
One of Guarcastol's friends, Argelio Cordova, testified he had a daughter who was about five years old during a period of time in which Cordova lived with Guarcastol. Cordova's daughter would visit Cordova while he was staying with Guarcastol. Guarcastol behaved very well around Cordova's daughter and never acted inappropriately toward her or toward his own children.
Cordova's daughter, who was 22 years old at the time of trial, confirmed that Guarcastol never behaved inappropriately toward her. She considered him "like an uncle."
Guarcastol's son, Christopher, who was 18 years old at the time of trial, testified that he saw Guarcastol interact with N.M. on a regular basis. He never saw Guarcastol act inappropriately toward N.M. or toward Christopher's sister, Z.
Z. testified that Guarcastol is not her biological father but is like a dad to her. Z. was around nine years old when she spent some time with N.M. and Guarcastol. Z. testified that Guarcastol never behaved inappropriately toward her. Z. never saw Guarcastol act inappropriately toward N.M.
B. Procedural Background: The Charges, Verdict, and Sentence
An information charged Guarcastol with sexual intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a); count 1), sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); count 2), and committing a lewd act on a child under age 14 (§ 288, subd. (a); count 3). The jury found him guilty of all three charges. The trial court imposed consecutive terms of 25 years to life for count 1, 15 years to life for count 2, and six years for count 3.
Undesignated statutory references are to the Penal Code.
Guarcastol appealed.
II. DISCUSSION
Guarcastol contends the trial court erred by barring him from crossexamining N.M.'s mother, M.V., about whether she had a motive to fabricate the allegations against Guarcastol to obtain immigration benefits for herself and her daughter under the U visa program. For the reasons we explain below, we conclude that the court erred and that the error was not harmless.
Because we reverse on the ground the court's pretrial ruling was prejudicially erroneous, we need not address Guarcastol's contention the court also erred by denying a post-verdict motion for a new trial based on new evidence pertaining to the U visa issue.
A. Additional Background
On August 31, 2021, prior to trial, defense counsel filed a motion in limine seeking permission to cross-examine M.V. about her potential bias or motive to encourage her daughter to fabricate allegations of sex offenses by Guarcastol to obtain immigration benefits under the federal U visa program.
Counsel stated in the motion that M.V., the "reporting party," is "originally from Mexico and currently undocumented." Counsel stated that, during their relationship, M.V. had accompanied Guarcastol to his immigration appointments. Counsel further stated: "[M.V.] had knowledge of the U-Visa process and discussed the requirements for obtaining immigration benefits with Mr. Guarcastol. [M.V.] learned during this period that a police report is required to begin the U-Visa process." Relying in part on the right to confront witnesses under the Sixth Amendment to the United States Constitution and on state law, including Evidence Code section 780,counsel argued Guarcastol had a right to cross-examine M.V. on this topic.
Evidence Code section 780 provides in part: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] ...."
The prosecutor filed an opposition, arguing that neither M.V. nor her daughter (N.M.) had applied for a U visa, and that there was no evidence they knew of the U visa program when N.M. made her allegations. Absent such proof, the prosecutor contended, any evidence about U visas or immigration status was irrelevant. And if such evidence had any probative value, it would be low and outweighed by concerns of confusion and undue consumption of time that would result from admitting it.
At a hearing on September 1, 2021, the prosecutor argued M.V. had not applied for a U visa and therefore Guarcastol's request should be denied as speculative. The prosecutor also referred the court to the decision in People v. Villa (2020) 55 Cal.App.5th 1042 (Villa) (a case we discuss further below). Defense counsel argued that an application for benefits was not necessary and that a witness's knowledge of the U visa program "could be a factor for impeachment and bias." The court questioned whether knowledge would be relevant if no application had been granted, but the court deferred ruling on the issue.
At a hearing on September 8, 2021, the parties presented further argument. The prosecutor continued to oppose Guarcastol's request, partly on the ground M.V. had not applied for a U visa. Defense counsel argued that M.V. was aware of the U visa process as a result of her conversations with Guarcastol's immigration attorney and with Guarcastol himself, and that obtaining lawful immigration status "was a big issue in the family." The parties also disputed whether questioning about the U visa issue would raise questions such as undue consumption of time under Evidence Code section 352. The court continued the hearing to allow defense counsel to file an additional brief.
Defense counsel filed a supplemental brief and offer of proof on September 9, 2021. Counsel stated her belief that M.V. knew about the U visa procedure at the time N.M. made her allegations of abuse, because M.V. had discussed the process with Guarcastol and had attended meetings with Guarcastol and his immigration attorney. Counsel also stated she was informed and believed that M.V. had used a false social security number to obtain employment. Counsel argued this conduct showed a willingness to make false statements to obtain employment and corroborated the defense position that M.V. had an understanding of immigration procedures. Counsel also argued that whether or not M.V. had applied for a U visa was irrelevant. Instead, if M.V. believed she might be able to obtain immigration benefits by testifying, that was a sufficient basis to cross-examine her about her potential bias or motive for testifying.
At a hearing on September 14, 2021, the court denied defense counsel's request to cross-examine M.V. about the U visa program. Noting that M.V. had not applied for a U visa, the court found that the evidence was irrelevant and that any relevance was outweighed by the potential for confusion or prejudice under Evidence Code section 352. The court stated that, if there was any relevance, it was "marginal at best," and that "under 352, the chance of confusing the jury, the chance of there being, you know, prejudice including that, I just don't think it's under-doing that balancing, it's admissible under 352."
In cross-examining M.V. at trial, defense counsel attempted to show M.V. had a motive to fabricate allegations against Guarcastol because there were difficulties in the relationship. Defense counsel also elicited testimony from M.V. in which she acknowledged paying money to obtain a false social security card so that she could use the number for employment purposes.
The jury reached its verdict finding Guarcastol guilty of the charged crimes on September 24, 2021.
On August 25, 2022 (after the jury's verdict but prior to sentencing), defense counsel filed a motion for new trial. The motion argued the court should order a new trial because M.V. consulted with an immigration attorney before the trial began and then applied for a U visa after Guarcastol was convicted.
The court denied the new trial motion on November 7, 2022. The court stated the evidence at issue was only impeachment evidence; the witness was impeached on other grounds; and it was unlikely admission of the evidence would have produced a different result at trial.
B. Analysis
Guarcastol contends the trial court violated his confrontation and due process rights by precluding all cross-examination about the U visa issue. We begin our analysis by summarizing the governing legal standards, which we discussed recently in more detail in Castaneda-Prado. (See Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1278-1284.)
1. Legal Standards
The right to conduct cross-examination in criminal cases "is not only fundamental to the adversarial process; it is constitutionally protected." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279.) The Sixth Amendment to the United States Constitution (applicable to the states through the due process clause of the Fourteenth Amendment) "guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.'" (Davis v. Alaska (1974) 415 U.S. 308, 315.) A trial judge has "broad discretion" "to preclude repetitive and unduly harassing interrogation" (id. at p. 316), but stringent restrictions will give rise to confrontation clause questions because they may fundamentally undermine the right of cross-examination itself. (Delaware v. Fensterer (1985) 474 U.S. 15, 19.)
The California Constitution provides the same protection. (Cal. Const., art. I, § 15; Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279, fn. 7.)
"Cross-examination for bias, in particular, has a special place in confrontation clause jurisprudence." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1279.) Courts have long" 'recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.'" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 (Van Arsdall).) The Supreme Court has stated that "[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." (United States v. Abel (1984) 469 U.S. 45, 52.) Because of the importance of bias evidence, "[w]here a proper foundation is laid for the inquiry, 'the trial judge may not deny a reasonable opportunity . . . to prove the witness's bias' through cross-examination or through other witnesses, but 'she has a discretion to control the extent of the proof.' (1 McCormick on Evidence (8th ed. 2022) Bias and partiality, § 39.)" (Castaneda-Prado, at p. 1280.)
In Van Arsdall, supra, 475 U.S. 673, the high court held that, although trial courts "retain wide latitude . . . to impose reasonable limits" on cross-examination for bias, a court may not prohibit a defendant "from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness." (Van Arsdall, supra, 475 U.S. at pp. 679, 680.) In Van Arsdall, where the trial court barred all cross-examination of a witness about his having obtained a dismissal of a driving under the influence (DUI) charge, a confrontation clause violation was shown because "[a] reasonable jury might have received a significantly different impression" of the witness's credibility if the proposed line of cross-examination had been permitted. (Id. at pp. 680, 676.)
As to prejudice, Van Arsdall held a constitutionally improper denial of the opportunity to impeach a witness for bias is subject to harmless-error analysis under Chapman v. California (1967) 386 U.S. 18 (Chapman). (Van Arsdall, supra, 475 U.S. at p. 684; id. at p. 680, citing Chapman, at p. 24; see Castaneda-Prado, supra, 94 Cal.App.5th at p. 1281.) We summarized the Van Arsdall prejudice test in Castaneda-Prado:" 'The correct inquiry,' the [Van Arsdall] court explained, 'is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.' (Van Arsdall, supra, 475 U.S. at p. 684.) Whether a particular confrontation clause violation is harmless, the court said, 'depends upon a host of factors,' including 'the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case.'" (Castaneda-Prado, at p. 1281.)
To apply Van Arsdall, a reviewing court must first consider "whether the trial court exercised sound discretion under state law evidentiary standards in limiting the scope of cross-examination." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1282.) Next, if "a trial court effectively renders cross-examination an exercise in futility, we must proceed to a second stage of analysis. Here, we ask a further, purely constitutional question whether '[a] reasonable jury might have received a significantly different impression' of the challenged witness's credibility if the proposed line of cross-examination had been permitted." (Ibid., quoting Van Arsdall, supra, 475 U.S. at p. 680.) We review this latter point de novo. (Castaneda-Prado, at p. 1283.) Finally, "[w]here courts reach the second stage of the Van Arsdall analysis and find error, reversal is required unless the government can show the error was harmless beyond a reasonable doubt under Chapman." (Ibid.)
2. Admissibility of U Visa Evidence
Applying the above framework of analysis, we concluded in Castaneda-Prado that the trial court prejudicially erred by categorically excluding evidence that a critical teen witness (referred to as Jane Doe 2) alleging past sexual abuse by the defendant was motivated to testify by the belief that doing so would assist her mother in obtaining a U visa. (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1284-1294.) We distinguished the decision in Villa, where an appellate panel affirmed the exclusion of evidence the domestic violence victim there had applied for a U visa. (Castaneda-Prado, at pp. 1286-1288; Villa, supra, 55 Cal.App.5th at pp. 1052-1053.) A key point of dispute by the parties in the present appeal is whether the facts here more closely resemble those in Castaneda-Prado or in Villa. As we explain below, we conclude this case is more similar to, and is controlled by, Castaneda-Prado, rather than Villa. We will therefore reverse.
Relevant evidence is generally admissible (Evid. Code, § 351), subject to a trial court's authority to 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." (Evid. Code, § 352.) The trial court need not expressly set forth its weighing process on the record, but the" 'better practice'" is for it to do so. (People v. Carter (2005) 36 Cal.4th 1114, 1151.) The discretion granted by Evidence Code section 352 is" 'not absolute'" and "must always be 'exercised reasonably in accord with the facts before the court.'" (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1284-1285.)
The trial court, noting M.V. had not applied for a U visa, found the proffered evidence here was irrelevant (or at best of "marginal" relevance), and stated generally that any probative value was outweighed by the potential for confusion or prejudice.
As we outlined in Castaneda-Prado: "The Evidence Code speaks in terms of avoiding 'undue' consumption of time on collateral matters (Evid. Code, § 352, italics added) and 'undue' prejudice or jury distraction (ibid., italics added).' "Unless the dangers of undue prejudice, confusion, or time consumption' "substantially outweigh"' the probative value of relevant evidence, a section 352 objection should fail."' (People v. Doolin (2009) 45 Cal.4th 390, 439, italics added.) Thus, Evidence Code section 352 balancing is undertaken on a sliding scale. 'The more substantial the probative value of the evidence, the greater the danger of the presence of one of the excluding factors that must be present to support an exercise of trial court discretion excluding the evidence. [Citation.] [¶] Where the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference, the testimony must be received over a section 352 objection absent highly unusual circumstances.'" (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1285.)
Here, as in Castaneda-Prado, the proffered evidence is bias evidence, so the "Evidence Code section 352 balancing must begin . . . with a sharp tilt on the sliding scale in favor of admissibility." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1285.) Proof of bias has traditionally been given great weight in evidence law generally, and" '[a] party can offer evidence, by proffered extrinsic evidence or by cross-examination of a witness, to attack the credibility of a witness, if such evidence tends reasonably to establish that the witness has a motive to fabricate, or some other motive, that tends to cause the giving of untruthful testimony, even though there may be no reasonable basis for the existence of such a motive.'" (Castaneda-Prado, at p. 1285.)
Another important similarity between Castaneda-Prado and the present case is that the bias evidence at issue "was proffered on a highly consequential issue" for the defendant. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1286.) In Castaneda-Prado, we noted the prosecution's case depended largely on the credibility of the witnesses (referred to as Jane Doe 1 and Jane Doe 2) who alleged the defendant had sexually abused them, as "[t]here was no physical evidence of the alleged sexual offenses, and investigators . . . had no ability to seek to obtain physical corroboration of the 'historical disclosure[s]' by the two victims." (Id. at p. 1286.) Because credibility was central, the U visa evidence proffered to impeach Doe 2 was "evidence of weighty probative value on a critical issue." (Id. at p. 1287.)
We contrasted this circumstance with Villa, where there was extensive corroboration of the charged domestic violence, including medical evidence of the victim's wounds and the testimony of a police officer who pulled over the defendant's truck shortly after the assault occurred and saw the victim had visible wounds. (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1286-1287; Villa,, supra, 55 Cal.App.5th at pp. 1044-1047.) In the different situation presented in Villa, the proffered impeachment evidence "had only slight probative value" in light of the extensive corroboration of the victim's testimony. (Castaneda-Prado, at p. 1287; Villa, at pp. 1052-1053.)
Here, like Castaneda-Prado and unlike Villa, the prosecution's case depended largely on witness credibility, as there was no physical evidence providing clear corroboration of N.M.'s testimony that Guarcastol sexually abused her. We recognize, as the Attorney General points out, that the SART exam of N.M. did produce some "concerning" findings, specifically that N.M. had an anal tag and immediate anal dilation, findings that can be consistent with abuse. But this evidence was inconclusive, as there was also testimony these findings could be normal variants and consistent with non-abuse factors, such as constipation, diarrhea, or poor hygiene. In her closing argument, the prosecutor acknowledged the centrality of witness credibility, repeatedly asking the jurors, "Do you believe [N.M.]?"
We do note, as the Attorney General stresses, that, while N.M.'s credibility was the primary basis for the prosecution's case, the U visa evidence proffered by the defense was meant to impeach N.M.'s mother, M.V., whom the Attorney General characterizes as a "peripheral" witness. But the defense theory in seeking to cross-examine M.V. about the U visa issue was that the potential availability of immigration relief gave M.V. a motive to encourage her daughter, who was a young child and "suggestible" at the time of the disclosures, to fabricate allegations of abuse against Guarcastol. Defense counsel also argued M.V. was herself a central witness, as she brought the allegations of abuse forward to hospital staff. For the defense, impeaching M.V.'s credibility and challenging her motives was an important means to seek to impeach N.M.'s credibility and cast doubt on the veracity of her account. And the prospect of immigration benefits under the U visa program arguably provided a strong incentive for M.V. to encourage her daughter to fabricate allegations of abuse. Given this context, we do not agree with the Attorney General that M.V. was an insignificant witness or that the defense's need to seek to impeach her should be weighed lightly in the Evidence Code section 352 balancing.
The defense presented a sufficient foundation in the trial court to pursue the proposed line of cross-examination. As noted, in her motion in limine and in subsequent oral and written arguments on the U visa issue, defense counsel stated M.V. had knowledge of the U visa process, had accompanied Guarcastol to his immigration appointments, had discussed the issue with Guarcastol himself, and understood a police report was needed to begin the U visa process. The trial court, adopting the prosecutor's view, appeared to believe the only foundation that would be sufficient to make the U visa evidence relevant was some proof that M.V. had already filed an application for a U visa. We rejected this view in Castaneda-Prado. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1286 [while a U visa application would justify an inference the witness believed testifying favorably to the prosecution would benefit her mother, "that was not the only way her intent could be proved"].) The proffer made here by the defense provided a good faith basis to cross-examine on the U visa issue. "The only remaining question had to do with the scope of cross-examination, not whether it could be undertaken at all." (Ibid.)
As to the balancing authorized by Evidence Code section 352, the trial court referred broadly to prejudice and jury confusion that might result from admission of the U visa evidence, although the court did not discuss particular concerns in any detail. Under the circumstances here, we conclude the court abused its discretion. Significantly, the foundation for the court's balancing analysis was its view that, since M.V. had not applied for a U visa, the proffered evidence was either irrelevant or had "marginal" relevance "at best." But as discussed, the court erred on this point-no application was necessary to provide a foundation for the evidence's relevance. Indeed, because the prosecution's case against Guarcastol depended largely on witness credibility, the proffered bias evidence here was not just relevant; it was "evidence of weighty probative value on a critical issue." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1287.) To outweigh the substantial probative value of this evidence, significant countervailing factors would need to be present. (See id. at pp. 1290, 1285.)
The record does not support a conclusion that factors such as undue consumption of time, confusion, or prejudice substantially outweighed the probative value of the U visa evidence. As to time consumption and potential juror distraction or confusion, it is true that, unlike in Castaneda-Prado, there was not an admission here by M.V. that she was motivated by the U visa program to provide testimony (see Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1288-1289), so there likely would have been a need to present some evidence about the program and to question M.V. about whether and when she learned about it. The Villa court held that such concerns supported the ruling of the trial court there precluding cross-examination about the U visa issue. (Villa, supra, 55 Cal.App.5th at p. 1053.)
We are not persuaded that result is appropriate here. The trial court was free to craft limitations on the scope of evidence to be presented on the U visa issue. The danger of undue prejudice, especially with victim witnesses-and even more so with child witnesses-is properly of great concern in sex offense cases, and the scope of cross-examination should be carefully controlled to account for that concern. But we are not dealing with a victim witness here, and in any event the court would not necessarily have had to permit a thoroughly comprehensive exploration of the topic of U visa. And as noted, unlike in Villa, the starting point for the balancing analysis here (as in Castaneda-Prado) is that the proffered U visa evidence had substantial, rather than limited, probative value. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1287; Villa,, supra, 55 Cal.App.5th at pp. 1052-1053.) The concerns about time consumption and jury distraction that outweighed the limited probative value of the U visa evidence in Villa did not justify a blanket preclusion of U visa evidence in the different circumstances here. The trial court exceeded its discretion in concluding otherwise.
As to prejudice, the trial court did not identify specific concerns and did not appear to be focused on preventing prejudice that might flow from M.V.'s undocumented status, a concern that the Villa court found well-grounded in that case but that we found insubstantial on the facts presented in Castaneda-Prado. (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 12891290; Villa, supra, 55 Cal.App.5th at pp. 1053-1054.) As Guarcastol notes, the court allowed cross-examination of M.V. about her purchase of a false social security card. And in any event, defense counsel made clear in her motion in limine that she did not seek to introduce evidence that M.V. is undocumented. She sought to probe M.V.'s eligibility for a U visa, an immigration benefit which is available not just to undocumented persons, but also to certain categories of non-citizens who are legally present in the United States. Thus, any stigma associated with this proposed line of cross-examination could have been mitigated by a carefully crafted limiting instruction to the jury. In our view, therefore, the scope of cross-examination could and should have been managed so that no significant prejudice resulted from allowing the jury to hear cross-examination of M.V. about the U visa issue.
Finally, the Attorney General notes that one reason the Villa court found cross-examination about the victim's U visa application would not have been very probative (along with the extensive corroborating evidence) was that the victim's account of the defendant's abuse had remained consistent (including statements before and after she learned of the U visa program), so there was little basis to suggest she had changed her testimony to obtain immigration benefits. (Villa,, supra, 55 Cal.App.5th at pp. 1052-1053.) In Castaneda-Prado, among other significant differences between that case and Villa, we noted Doe 2's account had not remained consistent but had become more detailed and more incriminating to the defendant over time. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1288.) The Attorney General argues that, in this respect, the present case is more like Villa because "there is no indication that M.V.'s trial testimony differed from any prior statement made by her."
We do not think this is entirely correct. As noted, M.V.'s trial testimony differed in some respects from her prior statements to police, including about whether she checked N.M.'s genitals for redness or trauma and whether N.M. told a doctor she had not been touched inappropriately in the past. But in any event, the Attorney General's argument on this point does not change our conclusion that the trial court abused its discretion. As discussed above, the U visa evidence here, as in Castaneda-Prado, was highly probative because witness credibility was so central to the prosecution's case. The fact that the witness's account changed over time in Castaneda-Prado, part of the constellation of circumstances we found to be material there, was not so singularly important to our analysis that the absence of significant changes to M.V.'s testimony would lead us to a different conclusion in this case. Moreover, as noted, the defense theory here was not that M.V. changed her testimony when she learned about the U visa program, but that M.V. already knew about the U visa program before any allegations were made, and that she was motivated by it to encourage N.M. to fabricate the allegations of abuse. Finally, because the evidence had substantial probative value, only significant countervailing factors-which are not present here- could have justified its blanket exclusion under Evidence Code section 352.
4. The Confrontation Clause
We also conclude, based on our independent review of the record, and based on the same factors we discussed in connection with state law admissibility, that the trial court's refusal to allow cross-examination on the U visa issue violated the confrontation clause. Here, as in Castaneda-Prado, the evidentiary ruling cannot be characterized as a routine exercise of trial court discretion (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1291), so we must proceed to consider whether Guarcastol has established a violation of the confrontation clause under Van Arsdall (see Castaneda-Prado, at pp. 1291-1294 [finding confrontation clause violation]). That step of the analysis has a critical effect on the applicable prejudice inquiry (id. at p. 1294 &fn. 16), which must proceed under Chapman, supra, 386 U.S. 18, which applies to confrontation clause violations, rather than People v. Watson (1956) 46 Cal.2d 818, which applies to Evidence Code section 352 abuses of discretion.
The challenged ruling at issue did not simply set limits on the scope of cross-examination on the topic of U visas. It blocked any cross-examination on the topic altogether. Defense counsel's proffer as to M.V.'s knowledge of the U visa program provided a foundation to cross-examine M.V. about that knowledge and about the defense theory that M.V. expected N.M.'s allegations of abuse could lead to immigration benefits for M.V. and for N.M. By precluding all inquiry about the topic of U visas, the trial court "prohibited [Guarcastol] from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness ...." (Van Arsdall, supra, 475 U.S. at p. 680; see Castaneda-Prado, supra, 94 Cal.App.5th at p. 1291.)
And in our view, if defense counsel had been permitted to pursue the U visa issue, "[a] reasonable jury might have received a significantly different impression" of M.V.'s credibility. (Van Arsdall, supra, 475 U.S. at p. 680; see Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1291-1292.) Specifically, a reasonable jury presented with the defense's proposed line of attack could have viewed M.V. with skepticism, both as to her own testimony about N.M.'s disclosures to her, and as to whether N.M.'s testimony alleging Guarcastol's abuse was embellished with M.V.'s encouragement.
The Attorney General is correct in noting the trial court here did permit the defense to cross-examine M.V. about prior conduct that could have caused jurors to doubt her veracity-her admitted purchase of a false social security card to obtain employment. And to some degree, this is a point of distinction between this case and Castaneda-Prado, where we found exclusion of the U visa evidence left the defendant with "no other meaningful way to impeach Doe 2." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1291.) But in our view, the permitted examination about the social security number issue does not lead to a different answer to the "significantly different impression" inquiry under Van Arsdall, supra, 475 U.S. at p. 680. While the questioning about the false social security number revealed a prior act that provided a basis to question M.V.'s veracity as a general matter, the U visa evidence could have had a very different and more specific impact. It could have presented to the jury a direct motive as to why M.V. might have decided to participate prospectively with the prosecution, and why she might have sought to encourage N.M. to fabricate allegations of abuse against Guarcastol, allegations that could lead to immigration benefits for M.V. and N.M.
We emphasize that "we do not endorse any particular reading of the evidence" and we "do not intend to weigh in on whether [N.M. or M.V.] testified truthfully." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1292, fn. 17.) We hold only that the defense should have been permitted to present its theory to the jury. (See ibid.)
As to prejudice, we conclude, as we did in Castaneda-Prado, that the error here cannot be deemed harmless beyond a reasonable doubt under Chapman. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1293.) As outlined in Van Arsdall, the factors relevant to the Chapman harmless-error analysis in this context include "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution's case." (Van Arsdall, supra, 475 U.S. at p. 684.)
Here, M.V., the witness the defense sought to cross-examine about the U visa issue, while not as central a witness as her daughter N.M., was nonetheless an important witness. M.V.'s testimony about N.M.'s disclosures corroborated that aspect of N.M.'s testimony. And M.V.'s testimony provided additional, indirect corroboration by showing that M.V. herself gave credence to N.M.'s disclosures. M.V.'s conduct in immediately taking N.M. to the hospital demonstrated her belief the disclosures were credible. Moreover, as discussed, in light of the defense theory that M.V. was the driving force encouraging N.M. to fabricate the abuse allegations against Guarcastol, evidence pertaining to M.V.'s credibility and motives took on an importance that went beyond M.V.'s own testimony, likely extending to how the jury would view N.M.'s testimony as well.
The Attorney General argues on appeal that M.V. was not a key witness. But at trial, after M.V. invoked her Fifth Amendment privilege against self-incrimination in declining to answer questions about her purchase of a false social security card, the prosecutor petitioned for, and the trial court issued, an order under section 1324 compelling M.V. to testify based on the prosecutor's statement M.V. was a "necessary and material witness." The court informed the jury of this grant of immunity, including that the prosecutor had stated M.V. was a "necessary and material witness," thus emphasizing to the jury the importance of M.V.'s (corroborating) testimony.
As to the other Van Arsdall prejudice factors, we do not view M.V.'s testimony corroborating the circumstances of N.M.'s disclosures as being cumulative in the sense that it could be considered unimportant. Corroboration of a young child's testimony in a case such as this one (even though principally as to the circumstances in which the child made her disclosures) is significant in our view. There was no evidence clearly corroborating or contradicting M.V.'s testimony. Other cross-examination of M.V. was permitted (including as to her past use of a false social security number), but as we have discussed, in our view that inquiry was not likely to have the same type of impact as the requested cross-examination about the U visa issue, which arguably provided a direct motive for M.V. to encourage her daughter to fabricate the abuse allegations.
Indeed, in our view, the U visa evidence, rather than being cumulative of other admitted testimony, would have complemented the impeachment of M.V. that was permitted. The cross-examination permitted by the trial court allowed M.V. to be impeached about (1) her use of the false social security number, (2) her denial that she had checked N.M.'s genitals and saw no trauma or redness, and (3) her denial that N.M. had told a doctor she had not been inappropriately touched in the past. The U visa evidence could have provided a possible reason why M.V.'s testimony on some of these points differed from her earlier statements to police. Although the defense theory was that M.V. already knew about the U visa program before N.M. made her allegations, the jury could have considered the U visa evidence as a reason M.V. might have refined her account to some degree over time. With the benefit of the U visa evidence, the jurors could have considered fully the defense arguments and given them whatever weight they deemed appropriate.
In light of these circumstances, and because the prosecution's case depended largely on witness credibility, "we cannot say the overall strength of the prosecution's evidence compelled but one conclusion-[Guarcastol] was guilty as charged beyond a reasonable doubt." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1293.) As noted, the physical evidence was inconclusive. In addition, N.M. provided vague and sometimes conflicting timelines for the abuse she suffered. This was not a case where the overwhelming nature of the prosecution's case obviates the evidentiary error at issue.
In addition to the specific prejudice factors outlined in Van Arsdall, other aspects of the trial testimony confirm our conclusion that the exclusion of the U visa evidence was not harmless under Chapman. M.V. testified that, during the time leading up to N.M.'s disclosures, M.V. and Guarcastol argued frequently, including when N.M. was home. M.V. told N.M. that if Guarcastol ever "hit [M.V.] very hard," N.M. should call the police. M.V. testified that, during these arguments, Guarcastol would use her legal status against her, i.e., he would "threaten [M.V.] with [her] legal status." Around the same timeframe, Guarcastol threatened to kill M.V. M.V. testified she was stupid for not calling the police on that occasion; she later testified that, on that or a different occasion, she did call the police but did not file charges. M.V. also told Guarcastol he was free to leave if he was not happy with the relationship.
This testimony about M.V.'s and Guarcastol's relationship was before the jury, as was the fact M.V. and Guarcastol continued to live together despite their difficulties. But the U visa evidence would have allowed the defense to present a stronger version of its fabrication theory, in which evidence that M.V. sought to obtain legal status was added to the background of her conflict with Guarcastol, including M.V.'s testimony that Guarcastol used her legal status against her.
Another relevant fact revealed by the trial testimony was M.V.'s practice of telling N.M., every day, that no one (not M.V., or Guarcastol, or anyone else) could touch N.M. M.V. testified that every morning before school, she told N.M. "that nobody could touch her, nobody, including myself, including him. Nobody from my family." These frequent references to touching could have been viewed by the jury as a form of coaching, whether inadvertent or deliberate. This testimony also could be viewed as having additional significance in light of the defense expert's opinion that a child's reference to sexual activity observed between parents was an "unusual" way to report having been abused. Evidence about the U visa issue (and the defense theory that the U visa provided a motive to fabricate) might have caused the jury to see M.V.'s practice in a different light.
We also note the prosecutor made statements in her rebuttal closing argument suggesting M.V. had no reason to fabricate allegations of abuse (while also explaining the false social security card in benign terms). The prosecutor stated: "And like many people, [M.V.] is an undocumented worker in the United States. Just trying to give her children a better life, trying to get by. That's why she bought that Social Security number, so that she could get a job. It's also why she doesn't want to come to court. She doesn't want her daughter to be involved in court. She doesn't want her business to be publicized to a room full of strangers in court, not unless-" After defense counsel objected, "That's not in evidence," and the court overruled the objection, the prosecutor continued by stating, "not unless it was absolutely necessary. And it became necessary. It became necessary because the defendant engaged in sexual intercourse and sodomy with [N.M.]."
Although in our view this argument was less pointed and less likely to have had a significant impact on the jury than the prosecution closing argument that we addressed in Castaneda-Prado (see Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1293-1294), we agree with Guarcastol that the prosecutor's statements here are relevant and may have exacerbated the prejudice from the trial court's preclusion of cross-examination about U visas. Because that evidence of a potential motive to fabricate had been excluded, the prosecutor was able to suggest M.V. would not have wanted to bring the matter to court unless the allegations of abuse were true. The prosecutor's statement thus exploited the court's exclusion order to make a point the defense was not permitted to explore or rebut. The prosecutor's argument, considered in conjunction with the other circumstances outlined above, bolsters our conclusion that the erroneous evidentiary ruling here was not harmless beyond a reasonable doubt.
For all the foregoing reasons, we conclude the trial court's erroneous ruling prohibiting cross-examination of M.V. about U visas was not harmless beyond a reasonable doubt.
III. DISPOSITION
The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
WE CONCUR: GOLDMAN, J., SMILEY, J. [*]
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.