Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 05F09637
MORRISON, Acting P.J.
A jury convicted Gilberto Hernandez of eleven counts of lewd conduct committed against his niece and nephew. (Pen. Code, §§ 288, subd. (a), 667.61, subd. (e)(5).) The trial court sent him to prison for 30 years to life, and he timely appealed.
On appeal, defendant contends the trial court improperly excluded evidence that showed that his niece had sex with someone else, which could have explained her damaged hymen and undermined her credibility generally. As we explain, this claim is partly based on inaccurate facts. We shall conclude that any error was harmless.
BACKGROUND
Defendant’s Pretrial Motion
Nine counts alleged sexual conduct between defendant and his niece, M. Five of the counts, as alleged, described acts which, if committed, could have damaged the victim’s hymen, four alleging hand-to-vagina contact and one alleging penile-vaginal penetration. Medical evidence showed some damage to M.’s hymen. The defense wanted to introduce evidence that M. had had sex with a young man named Alejandro, both to raise a doubt about how M.’s hymen was damaged and to show that she was not a credible witness, because she would testify that she had not had sex with anyone but defendant.
The People filed an in limine motion, on the ground that the evidence about sexual conduct between M. and Alejandro “is speculative and as such, should be excluded pursuant to Evidence Code Section 782 and 352.”
Defense counsel filed a counter-motion, arguing the evidence would explain “healed hymenal trauma in the alleged victim, M[].” A defense investigator’s report set forth alleged statements by two of defendant’s cousins, Martin and Angel Hernandez. Counsel declared his belief that if called as witnesses, they would testify that Alejandro admitted he had had sexual relations with M., and that Alejandro and M. had been seen in sexually compromising positions.
The investigator’s report reflected the following: Angel told the investigator that he had seen Alejandro, a man “in his early twenties” at home alone with 14-year-old M. “on at least three occasions between October 2004 and December 2004. Each time this occurred [defendant], Angel and Martin observed [M.] and Alejandro hastily escape the residence through the garage or the backyard and drive away in Alejandro’s white vehicle. On the second occasion, after they just left, Martin found what appeared to be semen in two moist condoms that were on top of trash inside the bathroom waste container.” Martin told the investigator the same thing, and added that some time after that second incident, Martin spoke with Alejandro, who replied that M.’s mother “was aware of their sexual relationship and promised continuing moral support” in case M. became pregnant, and that M.’s mother at times asked Alejandro to pick M. up from school.
Defense counsel represented to the court that “my client also caught them in a compromising position, that is, [Alejandro] and [M.], the victim. And . . . our position is that’s what started the whole chain of events which led to these allegations and his arrest.”
Based on the defense submission, the trial court conducted a hearing outside the presence of the jury at which M., defendant, Angel and Martin testified.
M. testified that as of the time she first told her mother that defendant had been sexually abusing her, she had never been vaginally penetrated by anyone, and specifically, had never been penetrated by Alejandro and had never kissed him. She never rode in Alejandro’s car and although she had gone to a movie with him, her brother and sister, as well as Alejandro’s sister, were with them. She had been to his house with her parents. She denied that defendant had ever caught her in an embrace with Alejandro. Martin and Angel Hernandez were her father’s cousins. The day after M. told her mother that defendant had been abusing her, there was a family meeting attended by her mother, father, brother, sister, grandfather and two uncles, Manuel and Guillermo Hernandez. At that meeting, her father, uncles and grandfather asked her to say nothing happened. She agreed, only because she was not allowed to leave the meeting unless she agreed, and her mother had already called the police.
Angel Hernandez testified that he had seen M. and Alejandro together several times talking, and once together in a car. He denied having told the investigator that he had ever seen them together alone at the house. Thus, his testimony contradicted the defense investigator’s report regarding Angel’s statements.
Martin Hernandez testified he had seen M. twice at the house he shared with Alejandro. Once when he arrived at the house they left through the garage, “And then I went into his room. I went into the bathroom, and I saw two used condoms.” Alejandro told him he was taking M. home. Angel was with Martin on this occasion. The second time “She was already leaving. I was going into the house. And she was getting into the car for him to take her.” Martin never saw any physical contact between them. He denied telling an investigator he had seen them together three times and denied telling him defendant was there. This, too, contradicted the defense report.
Defendant testified he saw M. and Alejandro having sex once, leaning up against a hallway wall: M. “had her right leg up and her shorts riding high. [¶] And Alejandro’s shorts were below his butt. [¶] And on the front also the shorts were down.” There were several adults in the driveway at this time. He never told the police about this incident when he was questioned about the instant charges.
Thus, as defense counsel conceded during argument on the motion, the testimony was far weaker than the version of evidence painted by the investigator’s report. Defense counsel conceded he had no reason to call Martin or Angel to testify because “it’s irrelevant, it’s hearsay or it’s too sketchy at best.” “So I would submit on basically asking the court to just allow me to question my client in the areas that I questioned him today.”
The People opposed the narrowed request that defendant be allowed to testify to what he saw, because it was incredible, defendant had never told this story when he gave other statements to the police, and there was no corroboration of it.
The trial court found the evidence—that is, defendant’s testimony that he saw M. and Alejandro having sex—relevant, but upon weighing the credibility of M. and defendant, found that the prejudicial effect of the evidence outweighed its probative value. The trial court denied the defense motion.
Facts at Trial
M. testified she was 15 at trial and her brother M.H. was 14. Her father has two sisters and several brothers, one of whom is defendant. When she was 7, in second grade, the family moved to Sacramento. When she was about 5, and went to kindergarten in Fairfield, defendant came to the United States and lived with her family.
When she was 5 or 6, living in Fairfield, defendant touched her vagina, moving his hand on the inside “a lot of times.” He also had her touch his penis by moving her hand. He told her not to tell anyone because they would not believe her.
In Sacramento, at the Summerset Apartments, defendant lived in a different apartment, but in the same complex. Defendant touched the inside of her vagina there, too, more than once. He also had her touch his penis more than once a week.
When M.’s family moved to a house on 51st Avenue, defendant would come over to babysit while her parents were both at work. About every day he would touch her vagina with his hand and have her touch his penis at the same time. He again told her not to tell anyone because she would not be believed, which left her confused. “Quite a few” times he would have her turn on her stomach and he would put his penis in her shorts and move on—but not in—her bottom, leaving her shorts wet. Once or twice when she was about 11 he put his penis in her vagina. This hurt her and there was blood on her underwear afterwards.
Defendant left her alone for a while, but in 2005 he touched her bottom; when she swore and told him to leave he just laughed and left.
The next day M. told her mother what happened because she was “mad that he thought he could still do this.” After her mother called the police, M. went with her mother to a family meeting at a park, where male relatives insisted she not tell the police what happened because it would make her grandmother sick; M. agreed so she would be allowed to leave.
M. had never had anyone else’s finger or penis in her vagina.
M.H. testified he was 14. When he was about 6 or 7, defendant, his uncle, said he would give him a dollar if he rolled over; when M.H. did, defendant sodomized M.H. and it felt like a baseball bat going inside his rectum. Before that, defendant moved M.H.’s hand on defendant’s penis. M.H. had to run to the bathroom because he thought he was going to defecate; defendant laughed, and also gave him a dollar. M.H. touched defendant’s penis two to four times. Once after M.H. touched defendant’s penis, defendant offered him $10-15 if he would lick it, but M.H. refused.
M.H. did not tell anyone until his sister revealed what defendant had been doing to her. He was present at the park when the relatives tried to suppress M.’s tale of abuse: this made M.H. mad because he felt defendant should be punished.
Sacramento Police Department Detective Denise Phillips testified that both children made reports substantially in accord with their trial testimony.
A nurse practitioner on a pediatric sexual assault team testified that M. had a damaged hymen; M.H.’s anus had no visible damage, which is not uncommon for anal penetration. Although some girls damage their hymens without penetration, that normally happens with a “straddle” injury, like a fall onto a bicycle bar, which leaves a different sort of injury than the kind M. had on her hymen.
Jose Vargas, defendant’s brother-in-law, testified M. and M.H.’s mother simulated fellatio with play dough in front of the children, and asked M. to pay attention to the demonstration. He had not mentioned this in a pretrial statement.
Roberto Hernandez, defendant’s brother and father of the victims, testified the family had not asked the children to lie at the meeting in the park. His wife (their mother) had threatened to deprive him of custody if he testified at trial.
Angelina Nazario, defendant’s sister, testified that she babysat the children, not defendant.
Manuel Hernandez, defendant’s brother, testified he was at the park meeting and nobody asked the children to lie.
Defendant testified he did not molest either child. He was allowed to testify that he had cautioned M. about her relationship with Alejandro, had seen him with her alone, and had told her that he would tell her father about it, but he never did tell her father. He admitted he sometimes cared for the children, although other witnesses tried to establish he was not their regular babysitter.
DISCUSSION
Appellate counsel states “appellant’s testimony and development of the testimony of his cousins Angel and Martin was crucial[]” to the defense. But trial counsel dropped the request to have the cousins testify. This was an explicit tactical decision made after Angel and Martin testified in a pretrial hearing to facts that would not have helped the defense case. Therefore, to the extent that appellate counsel’s argument is based on the defense investigator’s discredited report about what Angel and Martin would have testified to, we decline to address it.
The only issue before the trial court when it made its ruling was whether defendant could testify to the “hallway” incident, that is, whether defendant could testify that he saw Alejandro and M. having sex.
After a hearing, “if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.” (Evid. Code, § 782, subd. (a)(4).)
Evidence Code section 782 requires the court to consider whether the evidence “is relevant pursuant to Section 780,” that is, relevant to credibility.
“Evidence of prior sexual activity of a crime victim is generally excluded. . . . A limited exception to these general rules exists for prior molestation incidents involving child victims. . . . The theory behind the admission of a molestation victim’s prior molestation is that a child would not have knowledge of certain sexual practices other than as a result of the prior molestation.” (People v. Woodward (2004) 116 Cal.App.4th 821, 831 (Woodward).)
Here, the evidence, if believed, would also have explained the victim’s damaged hymen.
“‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations].” [Citation.]’” (Woodward, supra, 116 Cal.App.4th at p. 832.)
The weighing process of section 352 must be undertaken carefully, lest the purpose of the rape shield law be thwarted. (See People v. Nemie (1978) 87 Cal.App.3d 926, 930-931 [conc. opn. of Puglia, P.J.].) The record indicates that the trial court excluded the evidence because defendant’s story was not credible. For purposes of this appeal we accept defendant’s claim that the trial court thereby abused its discretion:
“The rape shield statutes do not permit the trial judge to make a credibility determination at the in camera hearing. Instead, the trial judge must evaluate the proffered evidence under the admissibility guidelines set forth in Evidence Code section 352, i.e., weighing of prejudicial effect versus probative value and additional evidentiary criteria. Credibility of the proffered witness is not included under these guidelines.” (People v. Chandler (1997) 56 Cal.App.4th 703, 711 (Chandler).)
Contrary to defendant’s view, a trial court’s error excluding evidence supporting a defense is reviewed under Watson (People v. Watson (1956) 46 Cal.2d 818, 836), that is, not every evidentiary error results in a deprivation of federal due process, requiring application of the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]). (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [hearsay ruling did not eliminate defense, it merely reduced the evidence supporting it]; People v. Foss (2007) 155 Cal.App.4th 113, 130; Chandler, supra, 56 Cal.App.4th at p. 711 [similar error under Evid. Code, § 782 reviewed under Watson].) The trial court’s ruling will be reviewed under Watson.
Defendant must show “that it is reasonably probable” that he would have achieved a better result had the trial court allowed him to testify that he saw M. and Alejandro having sex up against a wall in a hallway. (Watson, supra, 46 Cal.2d at p. 836; Chandler, supra, 56 Cal.App.4th at p. 711.)
Such testimony would not have had any impact on the charges involving M.H. It is not reasonably probable that the evidence would have made any difference as to the charges involving M. Defendant had an obvious motive to lie. His story would not significantly weaken the victim’s testimony, it would simply show she lied about having sex with Alejandro. His testimony would have been that a very young girl was engaged in sexual intercourse in a hallway, while any of several adults could have walked in. There was no corroboration of this remarkable event. The jury rejected defendant’s testimony that he did not molest M.H. and M. It is improbable that the jury would have believed the hallway story. The alleged error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.