Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F00127
ROBIE, J.
A jury found defendant guilty of raping a person incapable of giving consent. The trial court found defendant had two prior strikes that were serious felonies and sentenced him to 35 years to life in prison.
Defendant’s sole contention on appeal is the court erred in excluding from evidence additional segments of his jailhouse telephone conversations once the prosecutor introduced certain segments of those conversations. Disagreeing with this contention, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Seventy-eight-year-old G. has dementia. In 2003, G.’s niece moved her into a Sacramento board and care home called Manna House, which was owned by defendant’s grandmother and run by defendant’s mother. Defendant lived at Manna House in his own room and worked there as a patient caregiver.
In January 2006, defendant’s mother called G.’s niece and told her G. was “‘bleeding from her anus.’” A hospital examination revealed G. was bleeding from two lacerations in her vaginal area. According to one of the nurse practitioners who reviewed G.’s case, the degree of vaginal tearing was “very significant” and suggested a “fair amount of force or significant amount of force.” She had not seen this degree of tearing in any of the 1,000 examinations she had conducted and believed that a “normal functioning person” would be unable to tolerate this type of pain.
A police interview of G. proved inconclusive. When a detective tried to speak with G., she would respond with a blank stare and would answer some questions only after long pauses. She did state she knew a “young,” “nice gentleman” who was 74 years old named Perry. When the detective asked whether Perry touched her private parts, G. responded, “‘did not touch.’” She also responded that Perry “‘puts his penis in me when he washes me.’” Police could not find anyone named Perry associated with Manna House.
Defendant’s DNA, however, matched DNA from sperm found inside G.’s vagina. Defendant was arrested for raping G. and when arrested told his mother he was sorry for what he had done.
In jail, defendant made telephone calls that were tape recorded by jail personnel. In those telephone conversations, defendant admitted “having sex” with G., believed that the DNA could have come from “nobody else,” and explained he “pulled out” before he ejaculated and the sex “kind of tore her.”
DISCUSSION
Defendant contends the court erred in excluding six additional segments of the jailhouse telephone conversations. These segments can be synopsized as follows:
Segment 1: Defendant was not going to lie about working at Manna House. Defendant’s attorney told him he had to prove the sex was consensual.
Segment 2: Defendant had to wash G. because she smelled. G. said that a person named Perry touched her groin and told her he was studying to be a doctor. Defendant does not know who Perry is.
Segment 3: Defendant told his lawyer he hopes G. can remember having sex with him. Defendant did not rape anybody.
Segment 4: Defendant is not going to lie in court. A person in a board and care facility who is on medication can be very bright.
Segment 5: Defendant did not know G. had Alzheimer’s. G. seemed bright and intelligent.
Segment 6: G. told defendant, “she wanted to.” He said, “okay, well, then let’s do it.”
According to defendant, these six segments were admissible because they had “some bearing” on the already-admitted portions of the telephone calls and were necessary to place the admitted portions of the calls in context and to avoid a misleading impression. We review defendant’s argument concerning the exclusion of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)
As is relevant here, Evidence Code section 356 reads as follows: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
The purpose of Evidence Code section 356 is to “prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’” (People v. Arias (1996) 13 Cal.4th 92, 156.)
“By its terms section 356 allows further inquiry into otherwise inadmissible matter only, (1) where it relates to the same subject, and (2) it is necessary to make the already introduced conversation understood.” (People v. Gambos (1970) 5 Cal.App.3d 187, 192.)
Here, neither criterion is satisfied. First, the subject matter of the segments defendant wanted to introduce did not relate to the same subject as the segments the prosecutor introduced. The subject matter of the prosecutor’s segments was whether defendant was the person who had sex with G. and caused her physical injuries. The subject matter of defendant’s segments was whether defendant was going to tell the truth, whether Perry touched G., whether G. had the capacity to consent to sex, and whether defendant had knowledge of her incapacity. Second, defendant’s segments were not necessary to make the prosecutor’s segments understood. The prosecutor’s segments were not ambiguous and did not paint a misleading portrait of defendant. On this record, defendant has failed to show an abuse of discretion.
Defendant’s contention that the exclusion of this evidence violated his federal constitutional right to present a defense made in this same argument fails as well. Application of the ordinary rules of evidence under state law does not violate a criminal defendant’s federal constitutional right to present a defense. (People v. Abilez (2007) 41 Cal.4th 472, 503.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.