Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-061454-5
McGuiness, P.J.
On appeal from a conviction for sexual offenses against a child under 14 years of age, appellant Juan Hernandez asks this court to independently review information contained in the complaining witness’s juvenile court file to determine whether the trial court abused its discretion in refusing to disclose information that might have led to admissible evidence helpful to the defense. We have done so and conclude the trial court acted well within its discretion. Accordingly, we affirm.
Factual and Procedural Background
On November 22, 2006, the Contra Costa District Attorney filed an information charging Hernandez with four counts of lewd conduct with a child under 14 years of age. (Pen. Code, § 288, subd. (a).) It was further alleged in connection with all four counts that Hernandez had substantial sexual conduct with the victim, rendering him ineligible for probation under Penal Code section 1203.066, subdivision (a)(8).
At trial, “Jane Doe” testified she began having telephone conversations with Hernandez in 2006 after a friend gave Jane his phone number. Hernandez told Jane he was 17 years old. He turned 18 in March 2006. Jane told Hernandez she was 15. In fact, she was only 12.
Jane and Hernandez talked once or twice a day for more than a month. In June 2006, they met for the first time at a Burger King, drove around for half an hour, and kissed. They started talking on the phone more often. They talked about sex and said they loved each other.
On June 24, 2006, they met again at Burger King. They eventually went to a house in which Hernandez had lived, where he picked up clothes and a blanket and pillow. At around 9:00 or 10:00 p.m., they ended up at Hernandez’s brother’s house. After Hernandez told Jane he was not going to take her back home, Jane decided to “run away” from her parents and live with Hernandez for a month or two. The couple spent the night together in the living room of Hernandez’s brother’s house.
During the night they spent together, Hernandez asked Jane if she would like to have sex, and she agreed. They began to engage in vaginal intercourse but stopped because she complained that it hurt her and asked him to stop. She put her clothes back on. They started kissing again, and he asked if she would like to try again. After she agreed, they had vaginal intercourse again for about a minute. Hernandez then turned her over and engaged in anal intercourse with her for about two minutes.
Jane slept for a while. After she awoke, she kissed Hernandez and asked if he would like to have sex again. She asked if he would be responsible for a child if she got pregnant. He said yes, and they engaged in vaginal intercourse for a short time, until his alarm went off. He left for work.
When Hernandez returned home from work, Jane confessed her true age. After they called her family, his brother gave them a ride to Jane’s house. Her father and uncle were waiting outside the house. The police arrived ten minutes later. At that point, Jane claimed she wanted to live with Hernandez. She claimed she had done everything with Hernandez because she had wanted to.
When she was first interviewed by police, Jane said she was in love with Hernandez and had run away with him, but she denied anything sexual had happened. After speaking with her mother, who encouraged her to tell the truth, she admitted to the officer that she had had sex with Hernandez. Jane testified she first denied anything had happened because she did not want Hernandez to get in trouble and because she was embarrassed.
A police officer testified that she had interviewed Hernandez, who told her that he and Jane had spent the night on the couch and had engaged in vaginal intercourse on three occasions. Hernandez told the officer their plan was to live together and have children together. He also told the officer he did not see anything wrong with the relationship because it was consensual, and he planned on asking Jane’s parents if it was okay to date their daughter. The officer testified that she had attempted to make both a videotape and a digital audio recording of the interview. However, because both systems had malfunctioned, there was no record of the interview.
The sole defense witness at trial was a criminalist who subjected the couch cover from Hernandez’s brother’s home to presumptive testing for blood and semen. According to the criminalist, none of the stains on the couch cover tested positive for blood or semen.
The jury found Hernandez guilty as charged in the information. The court sentenced Hernandez to the lower term of three years in state prison on one count of lewd conduct with a child under 14 years of age. The court imposed concurrent three-year terms on the remaining three counts. Hernandez timely appealed the judgment of conviction.
Discussion
Hernandez asks this court to review the sealed transcript of an in camera hearing held to determine whether any of Jane Doe’s juvenile court records should have been disclosed at trial. The trial court denied disclosure after reviewing the file in camera.
During the pendency of this appeal, Hernandez’s appellate counsel requested that this court allow her to view the sealed transcript of the in camera hearing at which the court reviewed Jane’s juvenile file. We denied the request, stating that the “right to appellate review is limited to a determination as to whether the lower court’s ruling was correct. This Court may make its determination by reviewing the transcript of the in camera proceedings.” Our ruling was premised on the principle that “Parties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable ‘must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record.’ [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 493, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1162; see also People v. Collins (1986) 42 Cal.3d 378, 395, fn. 22; Herrera v. Superior Court (1985) 172 Cal.App.3d 1159, 1163.)
We have reviewed the sealed transcript of the in camera hearing conducted on March 29, 2007, at which the trial court considered whether to disclose information contained in Jane’s juvenile court file. The sealed record provided to this court does not contain a copy of Jane’s juvenile court file. Instead, the sealed transcript contains a description of the offense giving rise to juvenile court proceedings against Jane. The court’s description of the file’s contents is sufficient for purposes of our review. (Cf. People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
Hernandez makes two arguments in support of his request for this court to review the transcript of the in camera hearing. First, he contends the information in Jane’s juvenile file could have led to admissible evidence supporting his theory that Jane had a motive to fabricate her story based on her fear she would be sent to Mexico if she did something wrong again. He also contends that the record of an offense demonstrating moral turpitude might have been admissible to impeach Jane’s credibility. We address these arguments in turn after laying out the facts supporting Hernandez’s defense that Jane had a motive to lie.
1. Background
Jane testified at trial she was worried she would get in trouble with her parents for being away from her house. Her parents had previously threatened they would send her to Mexico if she “did something bad.” Defense counsel asked why her parents had made that threat, and Jane responded, “I had done something and they weren’t okay with that.” She said, “I’d rather not talk about it.” Defense counsel sought the court’s permission to ask Jane about what she had done so the jury could “judge whether that would motivate her to do everything she is doing, reporting this and having . . . had sexual intercourse . . . all to stay in this country and continue to stay here so her parents won’t send her to Mexico.”
The court denied the defense request to question Jane further about the nature of what she may have done to provoke her parents’ threat. The court stated: “I don’t think it’s relevant what she may have done to motivate her parents to threaten to send her to Mexico. What matters is the threat to send her to Mexico, not what she might have done to occasion that threat. She has already testified that the threat was there and she feared it. I have no problem with [defense counsel] going to that as a motive for whatever untruths [counsel] think[s] she has told. I think that . . . what she may have done that so angered her parents and got them threatening to send her to Mexico is beside the point.”
The court also expressed its concern that the questioning might prompt some admission of criminal conduct, requiring the court to stop the proceedings and appoint counsel to advise her on her Fifth Amendment right not to testify, which “would consume tremendous amounts of time on something that is really irrelevant.” The court ruled under Evidence Code section 352 that the requested area of inquiry was “unduly consumptive of time . . . which outweighs any marginal relevance it might have.” The court stated it had “no problem with [defense counsel] going into the fear of going to Mexico and whatever motivation that might have given [Jane] to lie.”
When the cross-examination of Jane resumed, defense counsel elicited from Jane that her parents had said if she “did something wrong again,” they would send her to Mexico. She testified she was afraid she would be sent to Mexico and was willing to do anything to avoid it.
2. Analysis
a. Impeachment with evidence of specific motivation to lie
Hernandez contends the court’s refusal to disclose information contained in Jane’s juvenile court file may have prevented him from presenting a complete defense. According to Hernandez, his defense was that “Jane fabricated the story of sex with [him] to shift the spotlight of blame away from her ‘bad act’ of running away.” He asserts the information in the juvenile court file may have led to admissible evidence supporting his theory. The argument is meritless.
The trial court ruled that any testimony by Jane as to what she did to provoke her parents to threaten her was irrelevant and would involve an undue consumption of time. What was relevant to a possible motivation to lie was Jane’s fear of her parents’ threat, not her parents’ reasons for making such a threat. The jury heard evidence that Jane feared being sent to Mexico and would have done anything to avoid that fate. Thus, any possibility that Jane might have had a specific motive to lie was before the jury. Plainly, the court did not abuse its discretion under Evidence Code section 352 by excluding evidence about what Jane had done to provoke her parents. (See People v. Holloway (2004) 33 Cal.4th 96, 134 [exclusion of evidence reviewed for abuse of discretion].)
Likewise, it was not an abuse of discretion for the court to refuse to disclose evidence of prior misconduct contained in Jane’s juvenile court records. At most, such evidence might have explained why Jane’s parents threatened to send her to Mexico, although it is conceivable the threat grew out of an incident not reflected in Jane’s juvenile court file. In any event, the reason for the threat is largely irrelevant, as the trial court observed. It should be noted, too, that the offense giving rise to juvenile court proceedings against Jane bears no relationship to the facts of this case.
We also observe that Hernandez’s argument is somewhat illogical. Why would twelve-year old Jane fabricate a story about participating in consensual sex with a man over eighteen years of age, a matter certain to be viewed by her parents as a “bad thing” on her part, to shift the spotlight away from the mere act of staying out all night? It seems more likely that her fear of being sent to Mexico would motivate her to falsely claim she either did nothing wrong, i.e., that she did not engage in sex at all, or that she was forced to participate against her will. To admit engaging in consensual sex would seem to make it more—not less—likely her parents would follow through on their threat.
b. Impeachment with evidence of prior conduct evidencing moral turpitude
Hernandez argues the information contained in Jane’s juvenile court file may have been admissible to impeach her credibility as past conduct demonstrating moral turpitude. As the Attorney General correctly points out, Hernandez forfeited this claim by failing to argue in the trial court that disclosure was justified on this basis. (See People v. Holloway, supra, 33 Cal.4th at p. 128; People v. Waidla (2000) 22 Cal.4th 690, 715-717.) Rather, his sole argument for disclosure at trial was that there might have been information in Jane’s juvenile court file supporting his defense that she had a motive to lie. To avoid any suggestion that Hernandez’s trial counsel was ineffective for failing to seek disclosure of Jane’s juvenile court file on the ground it might show past conduct demonstrating moral turpitude, we briefly address the merits of the claim.
A trial court has discretion to permit impeachment of a juvenile witness with prior conduct evidencing moral turpitude contained in a juvenile court record. (See People v. Smith (2007) 40 Cal.4th 483, 512-513.) In this case, there could have been no abuse of discretion because the offense giving rise to juvenile court proceedings against Jane was not a crime of moral turpitude. Indeed, the trial court made such a finding during the in camera hearing, notwithstanding the fact that defense counsel did not make a specific request for disclosure on the ground the record may have contained evidence of prior conduct evidencing moral turpitude. Further, even if the offense could be characterized as a crime of moral turpitude, we cannot say the trial court abused its discretion in declining to disclose the information contained in Jane’s juvenile court file. “Admission of . . . prior misconduct evidence [is] subject to the trial court’s discretion under Evidence Code section 352, which ‘empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380.)
Furthermore, even if information contained in Jane’s juvenile court records had been erroneously excluded, any error would have been harmless in light of the overwhelming and uncontradicted evidence of guilt. In his police interview, Hernandez admitted to engaging in sexual intercourse with Jane on multiple occasions. He even planned to seek permission from Jane’s parents to continue the relationship. Under any standard of harmless error, Hernandez suffered no prejudice as a consequence of the trial court’s refusal to disclose the contents of Jane’s juvenile court file.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.