Opinion
H041118 H044620
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRIAN MARIANT, Defendant and Appellant. In re DAVID BRIAN MARIANT, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1084997)
Defendant David Brian Mariant was convicted by a jury of continuous sexual abuse of a child (Pen. Code, § 288.5) and lewd conduct with a minor aged 14 or 15 years (§ 288, subd. (c)(1)). He was sentenced to a total term of 14 years in prison. On appeal, he argues: (1) the trial court erred when it excluded a videotape depicting him in a manic state around the time the victim, his oldest daughter (J.), reported the abuse, (2) the trial court erred when it admitted e-mails containing explicit descriptions of his prior sexual acts with other adults, (3) his trial counsel was ineffective for failing to exclude the statements he made during a pretext call with J. as involuntary, and (4) CALCRIM No. 1110, which was given to the jury, contained an error that negated one of the elements of section 288, subdivision (c)(1). Additionally, defendant asks that this court independently review J.'s therapist's files to determine if all properly discoverable evidence was given to the defense. For the reasons set forth below, we affirm the judgment.
Unspecified statutory references are to the Penal Code.
Appellate counsel has also filed a petition for writ of habeas corpus, which this court ordered considered with this appeal. In his petition, defendant raises several claims of ineffective assistance of counsel and argues this court deprived him of due process by denying his request for expert funding to conduct tests to determine if he suffers from memory or cognitive defects. We deny the petition for writ of habeas corpus.
BACKGROUND
1. The First Trial, Mistrial, and the Amended Information
On February 24, 2011, defendant was charged by information with six counts of sexual abuse of his three daughters. Following a trial, the jury was unable to return a verdict on any of the counts. The trial court declared a mistrial.
On April 24, 2013, the information was amended to drop the charges concerning defendant's two younger daughters. The amended information charged defendant with seven counts concerning his older daughter, J.: continuous sexual abuse of a child (§ 288.5, count 1), lewd conduct with a minor under the age of 14 years (§ 288, subd. (a), counts 2-6), and lewd conduct with a minor aged 14 or 15 years (§ 288, subd. (c)(1), count 7).
2. The Second Trial
a. The Prosecution's Case
i. J.'s Testimony
J., born in 1987, is the oldest daughter of defendant and his wife, Diane. J. has four siblings, two brothers and two sisters. Defendant has bipolar disorder. He previously suffered three manic episodes, which occurred in 1999, 2000, and in 2010. When manic, defendant can become unpredictable and have delusions of grandeur.
When J. was eight years old, defendant touched her sexually for the first time. She was in the top bunk of her bunk bed when defendant came into her room, which she shared with her sisters, to say goodnight. Defendant played a tickle game with J., which they had frequently played in the past. This time the game was different. Defendant asked J. to take her nightgown off, which he had not done before. He tickled J. "[e]verywhere that was visible." He then pulled down J.'s panties. When J. resisted, defendant told her, "[J]ust a little more. It's okay. We're playing the game." Defendant continued to hold J.'s panties down and tickled her legs, chest, stomach, and vagina. Defendant asked J. if the tickling felt good. J. could not recall if she answered. The tickling lasted approximately five to 10 minutes. Afterwards, defendant stopped tickling J. He kissed her goodnight and went to bed. J. pulled her clothes back on. She did not tell anyone, including Diane, about what had happened.
When J. was around nine or 10 years old, she decided she wanted to become a massage therapist when she grew up. Around that time, defendant began coming into J.'s room at night so she could give him back massages to help him sleep. During the massages, he typically wore only shorts or boxers and no shirt. He often insisted on giving J. massages in return. When she first started giving defendant massages, J. would wear pajamas. When she was around 12 years old, defendant started asking her to change into two-piece bathing suits.
Defendant touched J. in a sexual way for the second time when he gave her a massage when she was around 10 years old. The incident occurred in the middle of the night. J. was lying on her back in her bed. Defendant was sitting on the bed massaging her feet. Defendant's hands went upwards past J.'s thighs. He reached in under J.'s shorts and rubbed her vagina hard, over her panties. J. sat up, pushed defendant away, and told him "no." Defendant did not say anything to J., but he stopped touching her and left.
The next day, defendant took J. to the family's motor home, which was parked in the side yard of the house. He apologized profusely to J. While crying, defendant told J. he never should have done what he did and said he would never do it again. Based on defendant's statements, J. believed her Diane knew what had happened the day before. J. did not tell anyone else about what had happened. At that time, J. did not want defendant to get into trouble.
Two years later, J. was present when defendant told Diane that he had touched J. inappropriately. He was behaving erratically at the time he made the admission. After he confessed, Diane slapped defendant. However, she did not ask J. what defendant meant when he said he had touched her inappropriately. She also did not follow up with J. J., however, believed that Diane knew about both incidents. Defendant said he had told a counselor about what had happened, who reported the matter to child protective services. Defendant further said child protective services had completed an investigation and determined he was not a threat. J. later learned that defendant had lied and told the investigator that he had accidentally touched her.
Based on J.'s testimony at trial, it is unclear which incident defendant was referring to at the time.
J. was sent to counseling after the incident. She did not tell the counselor about what happened. She believed the abuse she had suffered was "over and done with," so she did not need to talk about it. When J. was growing up, her family placed a huge emphasis on forgiveness and moving on. They also placed an emphasis on protecting the family.
Defendant touched J. inappropriately again when she was 13 years old. The family had gone on a camping trip in their motor home. During this particular trip, J. slept on the table bed closest to the master sleeping area where her parents slept. It was nighttime, and only J., Diane, and defendant were awake. Diane was changing clothes at the time. Defendant was massaging J., rubbing her feet. J. was sitting on the bed, and she could see Diane. Defendant reached into the waist of J.'s pants and rubbed J.'s vagina with his fingers. Defendant touched J. hard, hurting her. J. did not say anything, but she pushed defendant away. She did not say anything to Diane. She was worried that Diane would become upset if she found out what happened.
The next incident of abuse took place when J. was 15 years old. Defendant and J. were in defendant's bedroom. J. had just finished giving defendant a full body massage. He insisted on giving J. a massage in return. He told J. to take off her shirt and bra so he could massage her upper body. J. hesitated, but defendant told her it was "no big deal" because he was her father and was not a stranger. J. complied and took off her shirt and bra. Defendant then massaged J.'s chest and breasts. Again, J. did not tell anyone about this incident. She felt helpless and believed Diane knew defendant was coming into her room at night but did nothing to stop him.
J. wrestled with defendant on several occasions when she was in her early teens. When J. was approximately 15 years old, she remembered she felt defendant's erect penis against her leg when she was wrestling him. Defendant also pinned her to her bed and told her that he could rape her.
The abuse did not stop when J. was 15 years old. Defendant molested J. again when she was 16. At the time, J. had used marijuana several times, which defendant used as a justification for conducting strip searches of her. Defendant said the searches were necessary to make sure J. was not bringing drugs inside the house. During a strip search, J. would stand facing away from defendant. She would take off one article of clothing at a time while both defendant and Diane watched. One time, when J. took off her shirt, defendant ran his hands down her breasts and around her bra. He then asked J. to take off her pants. Defendant then ran his hands down and in between J.'s legs and asked her to take off her panties. Diane watched and did nothing to stop defendant. Defendant conducted a similar strip search another time when Diane was not present.
Another incident took place when J. was 16 years old. Defendant played a "touch game" with J. J. had just given defendant a massage and was wearing a bikini. Defendant had J. lay down on her bed and close her eyes. He started running objects, like feathers and beads, up and down her body. Defendant told J. he had a great idea. He went downstairs, retrieved a serrated steak knife, and told J. to close her eyes. He ran the knife up and down her body, around her breasts, and across her neck. J. kept her eyes open, because she was frightened. J. told him she was scared, and he stopped.
J. had a boyfriend named Peter when she was around 16 years old. Defendant found out about J.'s relationship with Peter after she was caught being intimate with him. Defendant became enraged. J. initially told defendant that Peter had raped her. She recanted when defendant took her to a police station to report the crime. Defendant took J. to all the places where she had sex with Peter and took pictures of her at each location. He quizzed her extensively about what had happened at each location. J. was sent to counseling again after her parents discovered her relationship with Peter.
According to J., it was important to keep defendant happy. When upset, defendant could get "very very angry." He would take away privileges from his children. He would also take his anger out on the rest of the family and could be "incredibly aggressive." He hit J. once when she was 16. He also had a "spanking stick" that he used on the children when they were younger. The spanking stick was a metal rod that was about three or four feet long. All of the children were terrified of the stick. Defendant used the spanking stick on J. several times when she was younger. He mostly used the stick on one of J.'s brothers.
Defendant apologized to J. for abusing her multiple times when she was a teenager, between the ages of 14 and 17. Defendant would come into J.'s room and describe the sequence of events precipitating the incidents of abuse. He would break down, cry, and apologize for his actions. He would also promise J. he would not do anything like that again.
On March 4, 2009, defendant sent J. an e-mail. The e-mail included an attached article about a man who got aroused after seeing his daughter masturbate. Defendant wrote in the e-mail that the article may be relevant to J., and if she read the article she would understand what he meant. Defendant further wrote, "I have really hurt you and don't want my trying to resolve past issues to hurt you further." Defendant also sent the e-mail to Diane.
The following day, defendant sent J. another e-mail. In the e-mail, defendant thanked J. for taking the time to talk to him. He also wrote: "Rest assured that stuff is in the past, you and your sisters are safe and abuse will never be an issue from me again." He went on to say, "Thanks for your love and forgiveness. And once more, I'm so very sorry for hurting you, taking away your sexual purity and shaping a confused sexuality within you." This e-mail was also sent to Diane.
In early 2010, defendant went off the medication he used to control his bipolar disorder. He became manic by April of that year. J. called the police to report him. Defendant had been acting strangely and J. hoped the police would be able to get him back on medication. A police officer arrived and spoke with Diane and told her they could not do anything because he was not a threat to himself or to others. Diane told the officer that defendant had not harmed anyone before. J. replied sarcastically: "[W]ell, aside from molesting me my whole life, sure, he hasn't hurt anybody." J. did not think the officer heard her.
Diane was shocked after J. made her statement. She apologized to J. for not seeing the abuse and told J. she believed they could fix the problem together as a family. In the ensuing months, Diane remained supportive of J. and tried to get J. to talk about her issues. Diane was supportive until defendant was arrested. Diane became upset with J. after the arrest, because she believed the police did not need to be involved.
J., however, was not the one who reported defendant to the police. J.'s two younger sisters had overheard J.'s sarcastic comment to the police officer about defendant's history of abuse after defendant's most recent manic episode. After learning that J. had been abused, they became upset. Diane told the girls' counselor at school that they had just found out their older sister had been molested. The counselor at the girls' school called child protective services, and child protective services contacted the police.
Detective Mark Shimada interviewed J. in May or June of 2010. Shimada asked J. to put together a statement summarizing the incidents that she remembered. J. was not confident the police investigation would get anywhere, because there was no physical evidence that defendant had committed a crime. Shimada suggested that J. speak with defendant over the phone and record their conversation. Initially, J. was reluctant to make the pretext phone call. It was stressful for J. to think about the past abuses and to talk about them with defendant. Ultimately, she decided to initiate the phone call, which took place in August 2010. Shimada was with J. when she made the call. He advised her to use certain tactics when speaking with defendant. During the call, defendant referenced several incidents that J. could not remember, including an incident when he asked J. to take off her panties and touched her vagina in the family's trailer and an incident that occurred when J. was approximately eight or nine years old when he massaged her chest.
J. believed defendant made bad financial decisions for her family and irresponsibly spent the limited amount of money the family had. J. said her father frequently spoke to her about his affairs. He also spoke with J. about other sexual topics, such as how to masturbate and pleasure herself as an alternative to being sexually active. He talked to J. about vibrators and dildos. He also talked to J. about which items Diane used, and told J. about sexual issues he had with Diane.
J. had a difficult home life with defendant. When J. was growing up, defendant often took away her privileges. She was essentially grounded until she was 18 years old. She was not allowed to see her friends, her bedroom and locker were searched, her car mileage was tracked to see how far she had gone in a day, and she was unable to watch television. In 2005, she was sent to her grandmother's house for about a month because her parents could not handle her. J. said she was angry about everything by the time she was 15 or 16 years old. She wanted to join the Air Force when she was 17 years old, but her parents would not allow it. She spent three years making her own movie, writing a script and filming it, only to have defendant take it away from her. When J. went to college, she was unable to qualify for financial aid, because her parents refused to disclose their financial information.
J. was involved with the Santa Clara Police Explorer Program when she was growing up. The program was designed to teach children about law enforcement and careers in law enforcement. J. did not mention the abuse to any of the police officers she met while participating in the program. She did not think the officers would be able to do anything about the abuse, because there was no evidence against her father. She stopped participating in the program when she was 21 years old.
J. acknowledged she had lied in the past, including to her car insurance company when she got into a car accident as a teenager.
ii. The Pretext Call
The audio and transcript of the pretext call made by J. in August 2010 was admitted into evidence. The call began with J. and defendant chatting about defendant's recent vacation and birthday. J. then mentioned certain e-mails she had recently been exchanging with defendant and expressed that she was nervous about talking to him. Defendant told J. it was okay for her to share her feelings, and he was not going to judge her or argue with her.
J. explained she had become upset after she had accused him of molesting her all of her life when the police were called during defendant's last manic episode. She had started to become concerned about her two younger sisters. Defendant explained that about a year and half before, he began weaning himself from some of his medication. After he reduced his medication, he began remembering things. J. asked him, "how many times do you remember molesting me? Or touching me inappropriately?" Defendant said he did not have an answer and was not sure how to answer her question. J. asked, "You don't know how many times? I mean, that's okay." Defendant responded, "I'm not sure . . . I'm not sure what you want me to say."
J. responded that she had written notes describing each incident so she could remember them. Defendant asked her to describe the incidents, and he could confirm if he remembered them. He told J., "I'm aware of the gravity of what I've done . . . ."
J. recounted the first time she remembered defendant touched her inappropriately. She recalled it happened when she was around nine years old and shared a bedroom with her two sisters. J. said she remembered defendant took her nightgown off, pulled her panties down, and tickled her everywhere, including her vagina. Defendant said he did not remember the incident and did not believe it happened.
Defendant said he remembered an incident that occurred in the family's motor home or tent trailer on a camping trip. He remembered J. pulled her panties down, but he did not actually touch her. J. did not recall the incident.
J. said her next memory was an incident that occurred in her old bedroom. She was about 10 years old and had just given defendant a massage. Defendant came into the bedroom in the middle of the night because he could not sleep. He started giving her a massage. J. said that she was wearing shorts and a t-shirt at the time, and defendant was massaging her legs. As defendant massaged close to her vagina, he slipped his hands underneath her shorts, over her underwear, and began rubbing her. J. remembered she pushed defendant's hand away and told him "no." Afterwards, defendant left the room. The following day, he apologized to J. in the motor home. In response, defendant said he did not recall "playing with . . . [J.'s] privates." He did, however, recall several incidents where he massaged her and got close to her crotch area. He remembered J. pushing his hand away several times.
J. asked him if he remembered that they once had a conversation about a time when defendant touched her and felt moisture under her panties. Defendant said he recalled that incident. He said he remembered J. was not wearing panties at the time. Defendant said he recalled massaging her and feeling moisture, but he did not fondle or play with her private parts. He believed the incident happened around 12 years ago.
Defendant asked J. to clarify what she remembered about the incident that occurred in her bedroom. J. said, "You were giving me a massage and I was wearing shorts and I remember you were massaging my thighs and you went up under my pants, under my shorts and you massaged I think with your two, with your two big fingers, you massaged my vagina. You, you rubbed it for just a couple of seconds because I remember saying, 'No,' and I pushed your hand away. . . [¶] . . . And then you immediately . . . immediately got up and walked out of the room. And then the next day, that's when you went . . . you took me to the motor home and we talked for a long time. And you made a very, you know, very meaningful apology and we were crying and really upset and you told me that you should never have touched me like that. That's what I remember." Defendant told J. he remembered "everything [she] just said." Defendant said he asked for clarification, because he thought J. said he had "finger bang[ed]" her.
J. asked defendant why he touched her. Defendant asked J. if she was asking him why he was "inappropriate the times I was inappropriate," and said that he did not have an answer for her. He further explained, "being a dad, having children, I never expected this type of thing to happen." He said he had never been inappropriate with J.'s two sisters.
J. then described an incident that happened in the family's motor home when she was around 12 or 13 years old. She remembered defendant first massaged her legs then massaged her crotch area for a few seconds. J. said she pushed defendant's hand away. She remembered Diane was in the motor home at the time the incident occurred. Defendant said he did not remember the setting of the incident, but he did have a "visual memory of something like that occurring." He said he believed he had J. take her panties off during that time. J. said she did not believe defendant had her take her panties off, because Diane was in the room at the time. Defendant remarked that maybe she was remembering a different event. J. said she remembered defendant had her take her panties off when they played a touch game when she was younger.
Afterwards, J. said she remembered defendant massaged her breasts, stomach, and back when she was not wearing a shirt when she was around 15 years old. Defendant said he remembered doing that, but she was younger and did not have breasts yet.
J. asked defendant why he kept coming to her room to give her massages even after he confessed to Diane and to child protective services that he had touched her inappropriately. Defendant said he did not know that she felt uncomfortable and victimized when he went into her room to massage her. Later, defendant said, "I wish I would have had sense in my mind not to do any of this. It's the most shameful stuff I've ever done."
J. then brought up the times when defendant strip searched her as a teenager. She expressed she was angry that Diane sat there and watched defendant conduct the strip searches even though she knew defendant had touched her inappropriately in the past.
Afterwards, J. described the incident when defendant used a knife during a touching game. She remembered that defendant ran the knife all over her stomach and then up her throat while playing the touch game. Defendant said he recalled the incident but did not remember J. crying afterwards.
Defendant explained that he learned sexual inappropriateness from his brother and another individual that had been inappropriate with him. He also described himself as having trouble with boundaries.
J. said that Diane told her that defendant blamed Diane for not being sexual enough and blamed J. for wearing clothes that were too revealing. Defendant said he and Diane had challenges with their sexual relationship. Some of his affairs were a result of his previous sexual problems.
iii. Other Prosecution Witnesses
In 2000, Bruce Fitts worked at the Santa Clara Department of Family and Children's Services (Department) as an emergency response worker. In July 2000, Fitts received a referral that J., who was 12 years old at the time, had been sexually abused by defendant. Fitts visited the family's home to investigate. According to Fitts's report, defendant explained the alleged sexual touch was an "isolated incident." He vowed to Fitts that it would never happen again. Fitts asked defendant to have Diane, who was not at home, call him. Diane spoke with Fitts over the phone, and Fitts asked Diane to call back the following week for a follow-up. Diane called Fitts back and left a voicemail. Fitts never responded to Diane's message. He also never spoke to J. about the incident, which was against the Department's protocols requiring he speak directly to the alleged victim. Fitts explained he had received information that the touching may have been accidental. He had also received information that defendant had disclosed he touched J. on the genitals a year before. The report indicated that Fitts spoke with J.'s sister during the home visit. Fitts asserted he was sure he did not accidentally confuse J. with one of her sisters in his report. Fitts later closed the referral as unfounded.
In 2004, Jane Bahou graduated from a master's program in counseling psychology. Between 2003 and 2006 she was a marriage and family therapist trainee and intern at the center where J. received therapy. She began seeing J. in July 2004 after Diane called the center. Prior to starting therapy sessions with J., Bahou received a phone call from defendant. Defendant told Bahou that he had molested J., and the family was concerned that J. was not handling the experience well. Defendant also explained that he had found therapy helpful and he wished J. to have a similar experience. He also said he wanted J. to be in therapy because of her relationship with her boyfriend.
Defendant and Diane sometimes attended counseling sessions with J. J. sometimes spoke with Bahou about the abuse, but she minimized the incidents. She said she had blocked out certain memories. She told Bahou she did not speak to anyone about the molestation, because she did not want to get defendant in trouble. Bahou did not make a referral to child protective services after receiving information about the molestation. Both her supervisor and the center's intake counselor had assured her that a referral had already been made.
Later, J. shared her online journal with Bahou. J.'s online journal described that defendant had struck her, giving her a split lip. Bahou called defendant and told him she was going to report this incident. She did not recall seeing visible injuries on J. at the time. Bahou believed child protective services investigated following her report.
b. The Defense's Case
i. Defendant's Testimony
Defendant was diagnosed with bipolar disorder in 1999. He continues to suffer from the disorder. He takes four different types of medication to control his symptoms, and he believes each medicine affects his memory. Defendant often writes things down as a memory aid. He also makes audio and video recordings and takes extensive photographs. During the trial, defendant testified that his memories are similar to bits and pieces, like a single frame taken from a video. He explained he did not have complete memories, only fragments. He processes memories by trying to make sense of the pieces he has.
In July 2000, defendant suffered from a major manic attack and had to be hospitalized. Defendant had been with J. and Diane at the time. He had been delusional, believing that Diane was going to kill him. He talked about casting out demons and said hurtful things in front of J. He discussed how he had an affair. He also said he accidentally touched J. in her private area. J. appeared afraid. From then on, defendant assumed the accidental touch had really occurred.
Defendant had an image in his mind that the accidental touch occurred in the family's trailer when J. was approximately 10 or 11 years old. He remembered sitting down on one of the beds inside the trailer while J. was lying down. At the time, J. was wearing a bathing suit. Defendant remembered rubbing her legs and feeling a wetness in her crotch area. At the time, J. had wanted to become a masseuse. So, defendant had asked J. to take her top off and was showing her different muscle groups. Defendant denied ever touching J. in her nipple area. The following day, defendant started to think that it had been inappropriate for him to ask J. to take her top off. Defendant apologized to J.
When J. was 16 years old, defendant received a phone call from the community center informing him that J. had been using marijuana and had been caught having sex with her boyfriend. After he received this call, defendant questioned J. about her behavior. J. repeatedly changed her story about what happened. J. eventually admitted to having sex with her boyfriend. Defendant forced her to write apology letters to the community center and to the school. He took her to the places where she had sex and took photos of her. J. was angry at defendant. Defendant worried that J. would become pregnant and would get an abortion. He searched her room and found a runaway list, which included a gun. Defendant became very upset after seeing the list. He asked J. to disrobe and searched her clothes. Diane was present during all the searches except for one. Defendant maintained the searches were not sexually motivated. Afterwards, he arranged for J. to receive counseling.
On cross-examination, defendant explained that he did not want J. to get an abortion and wanted her to read books about virginity because of his Christian faith. However, he admitted that despite his religious beliefs, he had committed infidelity throughout his marriage. He also disapproved of homosexuality, but one of his affairs was with a man. He stated he disapproved of molestation.
In 2009, defendant sent an e-mail to James, one of his sons. At the time, James was 20 or 21 years old. The e-mail contained explicit details about sex acts he had done with Diane and with another man. Defendant explained that he was manic when he sent the e-mails and had just learned James was gay.
Defendant recalled writing the e-mail to J. in 2009 that included an attached article about a man getting aroused while seeing his daughter masturbate. Defendant explained he naturally visualized words. J. would sometimes make "sexualized statements," which caused defendant to have unpleasant sexualized visualizations of J. In his e-mail to J., defendant wrote, "Don't assume I'm implying or relating events or characters with either of us." Defendant explained he meant he was not specifically referring to himself and J. in his e-mail and was not implying he had improper thoughts about J. Defendant acknowledged he sent J. an e-mail that said: "Rest assured, that stuff is in the past. You and your sisters are safe and abuse will never be an issue for me again."
Sometime around April or May 2010 defendant went off his medication. He became delusional. He began rambling and took his clothes off. J. was present at the time. His family called the police to get him committed. That was when J. said he had molested her throughout her life.
In June 2010, defendant sent J. an e-mail asking if she could meet to discuss his "inappropriateness" with her. The "inappropriateness" defendant referred to was the abusive searches he had conducted. The following month, he sent J. another e-mail stating he wanted to know where he stood with her.
In August 2010, defendant was experiencing extreme depression. He was also still somewhat paranoid and delusional. He received the pretext call from J. on his birthday. Defendant knew she was angry about the allegations of abuse. J. was going to be married in a few weeks, and defendant hoped to at least attend the wedding. Thus, his goal during the phone call was to validate J. and to help her heal. During the pretext call, defendant could only remember bits and pieces of what had happened. He recalled talking about the incident where he massaged J.'s legs in the trailer when she was 10 or 11 years old.
ii. Jacob's Testimony
Jacob, J's younger brother, was four years younger than his sister. Jacob recalled J. asking defendant for massages and wrestling with defendant. She asked defendant to wrestle with her, because she wanted to be a police officer and was training to be one through the police explorer program. J. would ask for massages in the living room. The wrestling would also take place in the living room or other common areas of the house. Jacob found out about J.'s allegations against defendant the day he was arrested.
iii. Diane's Testimony
Diane and defendant had been married for 28 years. Defendant had suffered manic attacks in 1999 and in 2000. J., who was 12 at the time, had been present during the 2000 manic attack. During that manic attack, defendant had believed Diane was a witch and was casting spells. He said Diane was preventing the family from escaping in the event of a fire. He also thought Diane had murdered his brother. During the manic episode, defendant talked about how he had an affair and how he had accidentally touched J. inappropriately before. Diane took J. to therapy to help her process what she had witnessed for approximately six weeks. She did not take any of her other children to therapy, because J. was the one who had witnessed the bulk of defendant's manic attack.
A few days after defendant said he had touched J., Diane asked J. about what happened. J. told Diane she did not remember the incident. She then said the touching had been accidental. Diane gave this information to J.'s therapist.
Diane recalled a conversation that took place between defendant and J. in 1997. During that conversation, defendant apologized to J. and to Diane. Defendant said he had wanted to show J. how to do a Swedish massage. He had asked J. to take her shirt off so he could show her the muscles that are worked on during the massage. Later, defendant said he felt that he should not have asked J. to take her shirt off.
In 2004, when J. was 16 years old, defendant and Diane discovered J. was involved with a boy. Diane and defendant became concerned about J.'s "secret life." Defendant began disciplining J. He and Diane also started searching J.'s room. They found a runaway list in her room, which included a gun. Defendant and Diane became concerned that J. wanted a gun and also became worried that she may be using drugs. They started searching J. before she came inside the house. Diane would hold a large throw blanket up to J.'s neck, and J. would take her clothes off and hand them to defendant either under the blanket or over the top of the blanket. Defendant would then search through J.'s clothes. After they were done with the search, J. would get dressed and leave. Diane maintained that defendant was always on the opposite side of the blanket away from J. She never saw defendant touch J. inappropriately during the searches.
In April 2010, Diane and defendant went to Las Vegas to celebrate their anniversary. Defendant had started weaning himself off of the medication he took to control his bipolar condition. Defendant became psychotic on the trip. Diane called J. and told her about what was happening with defendant. Diane told J. she was afraid. Defendant often sent Diane incoherent, rambling text messages, which she forwarded to J. By May 2010, defendant's condition had deteriorated. Diane and her daughters went to defendant's mother's house to try to get him hospitalized. While there, defendant gave a rambling, two-hour speech to his family. At one point he left the room, and Diane later saw him outside wearing only a jacket with nothing underneath.
Eventually, the family called the police. When the police arrived, J. made a comment about how defendant had molested her all of her life. Immediately, Diane told J. that defendant had not molested her, he had accidentally touched her. J. then told Diane about other incidents where defendant touched her inappropriately. J. said defendant had rubbed her chest when she was not wearing a shirt and had played a touching game where he had held a knife to her throat.
Afterwards, Diane became supportive of J. She frequently talked to J. on the phone, texted her, and e-mailed her. Diane also confronted defendant and got into an argument with him. However, Diane did not want the police involved. She wanted the family to go to counseling. She was conflicted but believed her husband was innocent. Defendant had delusions several days before J. made the pretext phone call. After Diane heard the recording of the pretext call, she learned that J. had said Diane had seen defendant touch J.'s breasts and crotch. These statements made Diane question the veracity of J.'s statements, because Diane had never witnessed defendant touch J. inappropriately.
When J. was 16 years old, she implied to Diane that she thought Diane should divorce defendant. J. did not like that defendant controlled the family's finances and made medical decisions for the family. When J. was in college, she asked her parents for their financial information so she could qualify for financial aid. Defendant told Diane not to give J. any information, because J. was living with someone he did not approve of. Diane subsequently withheld the information from J.
iv. Defense Expert Testimony
Dr. David Hensley was a staff psychiatrist and chief of the adult unit at Kaiser San Jose Medical Center. He began seeing defendant as a patient in June 2010. Dr. Hensley explained that defendant was diagnosed with Bipolar I disorder. His condition meant that he had intermittent mood abnormalities and sometimes had episodes of mania.
Defendant took several medications that could affect his memory. Some of his medications were meant to be self-administered by defendant on an as-needed basis. Between 2000 and 2010, defendant reported having memory problems twice. Defendant also reported having memory problems to Dr. Hensley in June 2011. In his medical opinion, Dr. Hensley believed defendant suffered from memory problems.
Defendant was sent to an intensive outpatient treatment program at Kaiser between May 24, 2010, and June 4, 2010 after his most recent hospitalization. Defendant's memory was evaluated on May 24, 2010, and was found to be within normal limits. Dr. Hensley evaluated defendant again on June 18, 2010. At the time, defendant's memory appeared to be intact, and his thought process appeared logical. Dr. Hensley saw defendant again on August 3, 2010, and September 22, 2010. Dr. Hensley's assessment of defendant remained the same. Dr. Hensley had never evaluated defendant to determine whether he had suffered any cognitive or memory defects as a result of his mental illness or his medication. Dr. Hensley's assessment that defendant suffered from memory loss was based on defendant's self-reporting complaints that he had memory issues.
Dr. Annette Ermshar was a forensic psychologist and was qualified as an expert in memory suggestibility and Bipolar I disorder and its effect on memory. Dr. Ermshar explained that individuals with Bipolar I disorder are more suggestible than ordinary people. The more manic episodes an individual has, the more likely he or she suffers from long term cognitive defects. Cognitive defects last on average about 27 months. Dr. Ermshar opined that cognitive testing was not required to diagnose memory defects, although she admitted it could be a helpful tool. Dr. Ermshar had never evaluated defendant to see if he suffered from memory defects.
3. Verdict and Sentencing
On March 25, 2014, the jury found defendant guilty of continuous sexual abuse of a child (§ 288.5, count 1) and lewd conduct with a minor aged 14 or 15 years (§ 288, subd. (c)(1), count 7) and not guilty of five counts of lewd conduct with a minor under the age of 14 years (§ 288, subd. (a), counts 2-6). Counts 2 through 6 had been charged in the alternative to count 1.
On May 30, 2014, the trial court sentenced defendant to a total term of 14 years in prison. It imposed the middle term of two years for count 1 and the middle term of 12 years for count 7. Defendant appealed.
DISCUSSION
I. APPEAL
1. Exclusion of the Video Depicting Defendant in a Manic State
a. The Videos and the Trial Court's Ruling
During the second trial, defendant sought to admit three videos into evidence. The first video was titled "Manic Moments," the second video was titled either "Manic Moment" or "Later Same Night," and the third video was titled "Manic Moment—The Day After." The first video had been played at defendant's first trial. All three videos depicted defendant while he was in a manic state. They were filmed as part of defendant and Diane's life coaching business. Defendant and Diane spoke and wrote publications about bipolar disorder and worked with other people diagnosed with the disorder. Diane also filmed defendant when he was manic because he sometimes thought he was "quite normal" and she wanted to show him what his behavior was like. J. was not present in any of the videos.
In the first video, "Manic Moments," defendant is seen talking to Diane. The conversation he has with Diane is mostly incoherent, and defendant quickly jumps from various subjects. For example, defendant first tells Diane that he is thinking of his dead brother, Michael. He then recites a scripture from the Bible and explains that his brother needs to be pardoned by the President of the United States. Diane asks defendant how the President will pardon someone who is dead, and defendant responds that the President will understand. Later, defendant talks about a casserole he is making. He says he will solve his brother's murder, which will be worth a lot of money. Subsequently, the film cuts to a scene where defendant is seen arranging bottles and nuts around a tree. When prompted, defendant explains that nuts were the first fruit and "Artesian water" represented "three families." Defendant says that because the families died, he poured water on the neighborhood houses and placed the nuts around the tree for forgiveness.
Defense counsel moved to admit the videos into evidence and explained they were filmed around the time the family called the police to have defendant hospitalized in May 2010. Defense counsel argued the videos were relevant to show why J. lied about the molestation. The defense's theory was that J. wanted her mother to divorce her father because of his mental illness. J. did not want her father to be in charge of the family's finances or make medical decisions for the family. She also feared for her mother's safety. Defense counsel argued the videos depicted defendant's bipolar disorder, which made him suggestible and delusional. The videos also showed that defendant may appear normal even when he is not in touch with reality. Additionally, the videos depicted how he behaved after going off medication.
The prosecution objected to the admission of the videos. It argued that Diane appeared to be asking questions and purposefully eliciting responses to exaggerate or make defendant's bipolar condition appear more obvious. It further argued it was unclear when the videos were filmed. Furthermore, J. was not present during the filming and did not observe defendant in the manic state as depicted in the videos. There was also no evidence defendant was in the same "overtly manic" state at the time J. made her pretext phone call. The prosecution insisted the videos would prejudice the jury by creating a "mental health defense" when such a defense does not legally exist. The videos could also generate sympathy and confusion for defendant with the jury.
After hearing argument from the parties, the trial court expressed concerns about the videos. First, the trial court questioned the authenticity of the videos. The court noted that in many instances it was clear the videos had been purposefully edited. There were multiple instances when the camera was turned off, defendant appeared in different clothes, and it was obvious that there had been lapses in time. One of the videos had an audio track that did not match the video.
The court also expressed concerns about the relevance of the videos. Diane did not appear emotionally affected by defendant's manic state. Additionally, the court found the probative value of the videos to be low, because the videos were not taken around the same time the pretext phone call was made. It also agreed with the prosecution that the video would be prejudicial, because the portion of the video where defendant discussed his brother's death could generate feelings of sympathy for defendant.
In response, defense counsel explained that he had over five hours of video footage, which had been condensed for use at trial. The first video he sought to introduce had already been edited by defendant and Diane for use in their life coaching business. The other two videos were created from the five hours of footage in defense counsel's possession and edited to showcase defendant's manic behavior. Defense counsel explained he would speak to Diane about when the videos were recorded to address the court's concerns about authenticity.
Following defense counsel's explanation, the trial court tentatively found the videos to be inadmissible. The court stated: "I'll wait until the parties regroup on this [issue] and bring it back to me. The Court's tentative ruling now is that the evidence of those videos will not be admitted at this trial. But that will be subject to whatever else you bring to me later."
Later, the admissibility of the videos was discussed at another hearing. At the later hearing, the prosecution asked the court if it had made a final ruling on the admissibility of the videos. Defense counsel interjected and specifically requested the court not make a final ruling until the trial, because he believed the videos' relevance would become clear at that point. He further explained he intended to edit the videos and wanted to reintroduce the newly edited videos at trial. The court agreed not to make a final ruling. Defense counsel, however, never attempted to introduce the videos during the trial.
b. Defendant Has Forfeited His Argument
We find defendant has forfeited his argument that the trial court erred when it refused to admit the videos because he failed to press for a final ruling on the matter. "A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself. [Citations.] ' " 'Where the court rejects evidence temporarily or withholds a decision as to its admissibility, the party desiring to introduce the evidence should renew his offer, or call the court's attention to the fact that a definite decision is desired.' " ' " (People v. Holloway (2004) 33 Cal.4th 96, 133.)
Defendant argues forfeiture should not apply, because the court had the full opportunity to consider the issue and already made its position clear. He argues People v. Wattier (1996) 51 Cal.App.4th 948 is applicable. In Wattier, the appellate court concluded the defense did not forfeit his claim that evidence was improperly excluded even though the trial court made a tentative ruling and gave the defense the opportunity to provide further authority and the defense did not do so. (Id. at p. 952.) The defense counsel in Wattier had argued the objection "in a way that adequately informed the court as to his reasons." (Id. at p. 953.)
Unlike the situation contemplated in Wattier, defense counsel in this case essentially never finished his argument that the videos should be admitted into evidence. At the first hearing where the videos were discussed, the trial court questioned defense counsel about the date the recordings were made. Defense counsel informed the trial court that he would ask Diane for further clarification. At the subsequent hearing when the videos were discussed again, defense counsel specifically requested the trial court postpone making a ruling. Defense counsel explained that he believed the relevancy of the videos would become apparent in the context of the trial, and he stated that he intended to reedit the videos to provide additional clarity.
In short, defense counsel stated at multiple points during the proceedings that he intended to provide the court with additional information. However, he failed to do so. Defense counsel did not provide the court with information from Diane about the date of the recordings and did not attempt to introduce reedited videos during the trial. Thus, contrary to the situation contemplated in Wattier, the trial court here was not given the full opportunity to consider the issue. The trial court also clearly stated that its initial ruling was not final. During the initial hearing, the trial court stated it would "wait until the parties regroup on this [issue] and bring it back to me," and reiterated that its ruling was "subject to whatever else you bring to me later."
Based on the foregoing, we conclude that since defendant failed to press for a final ruling on the admissibility of the videos, he has forfeited his arguments on appeal.
c. Authenticity of the Videos
Even if defendant did not forfeit his claim that the trial court erred when it excluded the videos, we would find it still fails on the merits because the videos were not properly authenticated.
"To be admissible in evidence, an audio or video recording must be authenticated. [Citations.] A video recording is authenticated by testimony or other evidence 'that it accurately depicts what it purports to show.' " (People v. Mayfield (1997) 14 Cal.4th 668, 747, abrogated on different point as stated in People v. Scott (2015) 61 Cal.4th 363, 390.) " '[W]hat is necessary is a prima facie case. "As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility." ' " (People v. Dawkins (2014) 230 Cal.App.4th 991, 1002.) " 'The decision whether the foundational evidence is sufficiently substantial is a matter within the court's discretion.' " (People v. Rundle (2008) 43 Cal.4th 76, 129, overruled on another point as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, defense counsel did not offer testimony or other evidence to prove the video depicted what it purported to show. Although defense counsel claimed he would speak to Diane about when the videos were recorded, he never provided the court with additional information. He also did not request an evidentiary hearing under Evidence Code section 402 or elicit testimony at trial from Diane so she could provide a foundation to admit the videos into evidence.
Defendant claims that his and Diane's respective testimonies during the first trial were sufficient to authenticate the first video, which was admitted at the first trial. A mistrial, however, dissolves all evidentiary rulings made in the first proceeding, unless the parties stipulate otherwise. (People v. Sons (2008) 164 Cal.App.4th 90, 99.) We are unaware of any stipulation that required the court to adhere to evidentiary rulings made during the first trial. Additionally, evidence presented at the first trial authenticating the first video was not properly before the trial court at the second trial.
Defendant maintains the trial court's conclusion that the videos were inadmissible was a finding as to the video's credibility, not authenticity, which should be determined by the jury. We disagree with this characterization. A video must be authenticated by evidence showing that it accurately depicts what it is offered to show. (People v. Mayfield, supra, 14 Cal.4th at p. 747.) The trial court questioned whether the videos accurately depicted defendant in a manic state at or around May 2010, when his family called the police due to his deteriorating mental health. Thus, the trial court's concerns were related to the video's authenticity. And since defendant failed to offer evidence, circumstantial or otherwise, that demonstrated the videos did depict the events they purported to show, the trial court did not abuse its discretion when it excluded the videos.
Based on our conclusion, we need not address defendant's arguments that the videos were relevant and not more prejudicial than they were probative under Evidence Code section 352.
d. Ability to Present a Complete Defense
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' " (Crane v. Kentucky (1986) 476 U.S. 683, 690.) Defendant claims exclusion of the videos deprived him of this constitutional right. He insists that without the videos, the jury was unable to understand how suggestible he can be while manic. However, it is defense counsel, not the trial court, that failed to press for a final ruling on the videos and failed to reintroduce the videos during the trial. Additionally, defendant was able to provide testimony, from himself and from his defense experts, about the memory problems stemming from his manic episodes and the effects of his bipolar disorder.
We also note that " '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense.' " (People v. Dement (2011) 53 Cal.4th 1, 52, overruled on a different point as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Thus, to the extent the trial court refused to admit the videos due to defense counsel's failure to authenticate them, this denial did not deprive defendant of an opportunity to present a complete defense.
2. Admission of Evidence of Defendant's Sexual Acts with Other Adults
a. Evidence of Defendant's Extramarital Affairs and Other Sex Acts
Before the second trial, defendant moved to exclude evidence concerning his sexual conduct with other adults, including an extramarital affair that included oral copulation with another man, as irrelevant to his charged crimes. The prosecution filed a brief insisting that defendant's sexual conduct with other adults was admissible and relevant, and it intended on introducing evidence that defendant had inappropriate conversations with J. about his sex life and sexual exploits.
The parties discussed the admissibility of the evidence at a pretrial hearing. The prosecution explained that defendant had discussed his extramarital affairs with J. during the pretext call, and he had spoken to J. about his affairs years before the allegations of molestation. The trial court stated it believed evidence about the affair was relevant, because it corroborated J.'s testimony that defendant had previously described the affair to her. The court, however, agreed with the defense that the explicit details of the affairs were more prejudicial than probative under Evidence Code section 352 and asked the parties to work on a stipulation about how the evidence could be sanitized.
Evidence of defendant's sex acts with other adults was considered again at a later hearing. During the hearing, defense counsel explained that in the pretext call, J. accused defendant of telling her he had engaged in certain specific sex acts with other men when he was on a camping trip. In the pretext call, defendant responded to J.'s accusation by explaining the only sex act that had occurred when he went on a camping trip happened when he was 13 when another boy wanted to have anal intercourse with him.
The prosecution argued this statement was relevant for two reasons: it showed defendant had engaged in inappropriate discussions about his sexual experiences with his daughter, and it showed that defendant was able to separate two distinct memories (an incident that occurred on a camping trip when he was 13 and a consensual sexual relationship with another man that occurred when he was an adult) that J. had conflated. In other words, the statement demonstrated that defendant did not readily adopt J.'s suggestion that such an event had occurred, and defendant was able to distinguish between actual and made-up events.
Again, the court agreed with the prosecution that the evidence appeared relevant. However, the court believed the portion of the statement referencing specific sexual acts was more prejudicial than probative under Evidence Code section 352. The trial court suggested sanitizing the evidence to remove references to the specific sex acts and references to the fact that the sex act had been with another man.
During the trial, J. testified about defendant's views on premarital sex and sexuality. As she was growing up, defendant had emphasized to her that sex before marriage and abortions were sinful and evil. Defendant also had J. read religious books about virginity.
On direct examination, defendant discussed how his memory worked. He explained that he visualized words. In the past, J. had used inappropriate language around him that had created unpleasant, inappropriate visualizations. He claimed he had spoken to J. about how he visualized words and had asked her to stop using sexualized language around him. He also confirmed that he had forced J. to read religious books on virginity after learning about her relationship with her boyfriend when she was 16 years old.
Defendant explained some of the statements he made during the pretext call. During the pretext call, J. had remarked that defendant had confessed to Diane and child protective services about touching J. inappropriately. J. then asked defendant why he continued to go to her room to give her massages even after he admitted to the inappropriate touching. Defendant had responded that he did not specifically remember touching J., and he did not have an answer for her. He had also said he did not realize at the time that J. felt victimized, and he apologized to her. He then said, "I wish I would have had sense in my mind not to do any of this. It's the most shameful stuff I've ever done."
In two separate instances, defense counsel asked defendant about what he was referring to in the call with J. when he said there was an incident "that . . . bothered [him] the most" and the incident that he found "the most troubling." Defendant responded both times that he was referring to the time he touched J. inappropriately by accident.
On cross-examination, the prosecutor asked defendant why he forced J. to read religious books on virginity. Defendant said that abstaining from sex before marriage was important to him. The prosecutor then asked him why abstinence was important to him, and defendant responded that it was part of his Christian faith. Defendant further stated that due to his religious beliefs, he did not agree with abortion. The prosecution asked him what else he disapproved of because of his faith, and defendant answered that his religious beliefs also meant he disapproved of lying, stealing, and breaking the Ten Commandments. He testified he disapproved of certain sexual acts, including molestation. He also disapproved of homosexuality. The prosecution then asked him about the pretext call and how he had described accidentally touching J. to be the "most shameful thing" he had ever done. Defendant confirmed he believed it was the most shameful thing he had done, because he had to tell other people including child protective services what had happened, and J. "would have an image of that of her dad." He was also standing trial for his acts, which brought him "more shame."
After eliciting this testimony from defendant, the parties had a sidebar with the court. Thereafter, the prosecution asked defendant about how he had engaged in extramarital affairs during his marriage despite his strong religious beliefs. The prosecution also asked defendant about how one of his affairs was with another man. Referencing his earlier statement that the most shameful thing he had ever done was putting the image of himself touching J. in her head, the prosecutor then asked defendant about an e-mail he had sent his son, James. Specifically, the prosecution asked defendant if he had included in his e-mail to James explicit details about his affair with another man and sexual acts he had done with Diane. The prosecution asked defendant if he had e-mailed James and told him that he had "deep throated a man's cock," he had been "fucked in the ass till I was bleeding," and that he had enjoyed "kissing [his] wife's entire soft body, holding her soft breasts and sucking on them." The prosecution then asked defendant if sending these e-mails was more shameful than telling J. he had accidentally touched her.
Later, the trial court explained what had happened during the sidebar discussion with counsel. The prosecution had requested permission to admit into evidence the explicit e-mails that had previously been excluded by the court. The prosecution had explained that it felt introduction of the evidence was warranted due to some of defendant's comments during direct examination. On direct examination, defendant had talked about forcing J. to read religious books about virginity. Thus, the prosecution had argued that defendant had opened the door to impeachment evidence showing that he had violated his own strong religious beliefs and called into credibility his testimony about the most shameful act he had ever committed. Defense counsel had objected to the admission of this evidence as improper character evidence. He also insisted that he had not opened the door to admission of the evidence.
b. Admission of the E-mails Under Evidence Code Section 352
On appeal, defendant argues evidence of the specific details about his affair with another man and his having an extramarital affair was irrelevant and unduly prejudicial. As we explain below, although we agree with defendant that the e-mails should have been excluded, reversal is not necessary because their erroneous admission was not prejudicial.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) Relevant evidence is evidence that has some "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) This includes evidence "relevant to the credibility of a witness." (Ibid.)
To determine a witness's credibility, the jury may consider "[t]he existence or nonexistence of any fact testified to by him." (Evid. Code, § 780, subd. (i); Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946 ["[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony"].) Thus, impeachment evidence may be admitted when it calls into question a witness's credibility.
Not all impeachment evidence is admissible. Impeachment evidence is subject to exclusion under Evidence Code section 352. (People v. Lucas (2014) 60 Cal.4th 153, 240, disapproved on another point in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) Under Evidence Code section 352, a trial court "may 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." " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Additionally, some matters are collateral and irrelevant even if they touch on a witness's credibility. (People v. Contreras (2013) 58 Cal.4th 123, 152 ["A fact may bear on the credibility of a witness and still be collateral to the case."].) Collateral evidence that is relevant for impeachment purposes may be admissible at trial but is subject to exclusion under Evidence Code section 352. (People v. Lavergne (1971) 4 Cal.3d 735, 742 (Lavergne) ["collateral matters are admissible for impeachment purposes"].) "[T]he collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." (Ibid.)
For example, in People v. Harris (2008) 43 Cal.4th 1269, the Supreme Court held the trial court did not abuse its discretion when it excluded evidence of a witness's prior poor performance on probation under Evidence Code section 352 despite its relevance to show the witness's "lax character and general lack of credibility." (People v. Harris, supra, at p. 1291.) In People v. Rodriguez (1999) 20 Cal.4th 1, the Supreme Court concluded the trial court did not abuse its discretion when it stopped a prosecution witness who saw a murder from the rooftop of a building from being impeached with evidence that disputed his statement that he was on the rooftop with permission from the building's management. (Id. at p. 9.) Similarly, in Lavergne, supra, 4 Cal.3d 735, the Supreme Court concluded the trial court properly excluded evidence that a witness in a robbery case had stolen a car when defense counsel deliberately cross-examined him about the car's ownership solely to introduce impeachment evidence. (Id. at p. 742.) The Supreme Court noted that the fact that the witness had stolen the car had no bearing on the defendant's guilt or innocence and did not provide a motive for the witness to falsely implicate the defendant of the robbery. (Ibid.)
On appeal, we review a trial court's rulings on the admission or exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Here, defendant argues case law clearly establishes evidence of sexual conduct with other consenting adults is irrelevant in child molest cases. He also argues that evidence of defendant's affair with another man is unduly prejudicial, because old prejudices that imply homosexuals are more likely to be child molesters may persist and influence the jury. He cites to People v. Kelley (1967) 66 Cal.2d 232, 244-245 (Kelley), disapproved of on another point in People v. Alcala (1984) 36 Cal.3d 604, 624, People v. Garcia (2014) 229 Cal.App.4th 302, 310-312 (Garcia), and U.S. v. Gillespie (9th Cir. 1988) 852 F.2d 475, 478 (Gillespie).
In Kelley, the defendant was accused of orally copulating his stepson and forcing his stepson to masturbate him. (Kelley, supra, 66 Cal.2d at p. 236.) The trial court admitted evidence that defendant had admitted committing certain sexual acts with other adults, including another man. (Id. at p. 237.) The Supreme Court concluded the other sexual acts were not " 'of a similar nature' " to the crime charged, because they were committed with consenting adults and involved "distinctly different conduct" on the part of the defendant. (Id. at p. 244.) Thus, the court concluded the evidence could not "be relevant enough to the seduction of an 8-year-old boy [the stepson] to outweigh its prejudicial effect upon the jury." (Id. at p. 245.) Accordingly, the evidence should have been excluded.
In Garcia, the appellate court concluded that the defendant, who was charged with sexually abusing a girl that she babysat, was deprived of due process and did not receive a fair trial when the prosecution repeatedly emphasized that she was a lesbian during closing argument. (Garcia, supra, 229 Cal.App.4th at p. 304.) The defendant's sexual orientation had no connection to proving she abused a child and was not relevant to show intent or motive. (Id. at pp. 313-314.) However, during closing argument, the prosecutor argued that the defendant's attraction to other women gave her motive to sexually abuse the victim. (Id. at p. 317.) The appellate court concluded that given the evidence and argument on the issue, the defendant was deprived of a fair trial and reversal was required. (Id. at p. 318.)
The impact of evidence showing a defendant's homosexuality was also examined in Gillespie, supra, 852 F.2d 475. In Gillespie, the defendant was accused of transporting a child to the United States to molest her. (Id. at p. 477.) The prosecution sought to introduce evidence that the defendant had slept with his adoptive father as evidence of the defendant's motive, intent, plan, and design for bringing the child to the United States. (Id. at p. 478.) The Ninth Circuit found the evidence to be irrelevant to proving whether the defendant was guilty of the charged offense. It further found the introduction of the evidence to be highly prejudicial. (Id. at pp. 478-479.)
For the same reasons articulated in Kelley, Garcia, and Gillespie, we agree with defendant that evidence of his prior affairs with consenting adults is irrelevant to proving or disproving he sexually abused J. The People, however, maintain that the evidence was not introduced to directly prove or disprove the alleged abuse. Rather, the prosecution introduced the e-mails to impeach defendant's claim that telling J. about accidentally touching her was the most shameful thing he had ever done, and to demonstrate that despite his strong religious beliefs and stance against homosexuality he had committed extramarital affairs, including an affair with another man.
There are several problems with the prosecution's argument and the trial court's admission of this evidence. First, the evidence had marginal impeachment value and constituted improper character evidence under Evidence Code section 1101, which prohibits evidence of a person's character trait "when offered to prove his or her conduct on a specified occasion." (Id., subd. (a).) Here, the prosecution presented evidence that defendant went against his religious beliefs when he committed adultery and had an affair with another man. During closing argument, the prosecution argued that defendant's hypocrisy on these supposed beliefs tended to show he committed his crimes. In essence, the prosecution urged that defendant's hypocrisy made it more likely he was guilty of the charged crimes.
Character evidence may be admitted when offered by the prosecution to rebut the defendant's character evidence. (Evid. Code, § 1102, subd. (b).) However, as defendant points out, he did not paint himself as someone who strictly adhered to his Christian faith. On cross-examination, he stated he disapproved of certain things—like molestation and homosexuality—based on his religious beliefs. Yet, he did not make a sweeping statement or generalization that he could not have committed the acts charged because of his religion. (C.f. People v. Morrison (2011) 199 Cal.App.4th 158, 165-166 [impeachment of defendant's testimony about his employment and use of a work van properly admitted as relevant to defendant's credibility in robbery case].)
Additionally, defendant correctly notes that the e-mails were not admitted to impeach his testimony on direct examination but rather his testimony on cross-examination. It was the prosecution that elicited defendant's answers about his religious beliefs on cross-examination following his testimony on direct examination that he had required J. to read religious books on virginity. "A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted. [Citations.] This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party's questions." (Lavergne, supra, 4 Cal.3d at p. 744.) That is precisely what occurred here.
Furthermore, even if the evidence was relevant to defendant's credibility, its admission was still subject to exclusion under Evidence Code section 352. Defendant argues that under Evidence Code section 352, its probative value was outweighed by its prejudicial effect. We agree. Collateral evidence that is relevant for impeachment purposes may be admissible at trial. However, "the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury." (Lavergne, supra, 4 Cal.3d at p. 742.) Although the evidence was relevant for impeachment purposes, the prejudicial and inflammatory nature of the explicit e-mails outweighed their minimal probative value.
However, reversal of the judgment is required only if we find defendant was prejudiced by the erroneous admission of the e-mails. Defendant argues we must evaluate prejudice using the "harmless beyond a reasonable doubt" test as articulated in Chapman v. California (1967) 386 U.S. 18, 24. We disagree. In general, " 'the application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution, and thus we review allegations of error under the "reasonable probability" standard of [People v. Watson (1956) 46 Cal.2d 818] . . . .' " (People v. Jandres (2014) 226 Cal.App.4th 340, 357.) Under Watson, prejudicial error exists when it is " 'reasonably probable' " that a result more favorable to the appealing party would have been reached in the absence of error. (People v. Harris (1998) 60 Cal.App.4th 727, 741.)
Based on the overwhelming evidence against defendant, we find it is not reasonably probable that a different verdict would have been reached had the e-mails been excluded. The prosecution presented ample evidence of defendant's guilt. J. testified at length about the abuse. During the pretext call, defendant apologized for his inappropriate behavior, corroborating many of J.'s accusations and providing details about events that even J. did not remember. The abuse was also mentioned by defendant in e-mails he sent to J. in 2009, which were introduced into evidence. In one e-mail, defendant wrote that J. and her sisters were "safe and abuse will never be an issue for me again." In another e-mail, he told J. he was "very sorry for hurting [J.], taking away [J.'s] sexual purity and shaping a confused sexuality in [J.]." In one of the e-mails, defendant attached an article about a man lusting over his own daughter. Defendant wrote in that e-mail that "[i]mage after image flashed by about my abuse of you."
Defendant argues the evidence of his affairs was uniquely inflammatory and led to unreasonable inferences about defendant's character. We agree that the salacious details of the e-mails likely did not aid the defense. However, the amount of inflammatory material that was introduced was relatively small. The prosecution cross-examined defendant briefly about several lines of e-mails. The focus of the prosecution's case was J.'s testimony against defendant, the pretext phone call, and the e-mails sent to J.—not the e-mails sent to James. Additionally, J. had already testified during the trial that defendant told her about sexual problems he had with Diane and talked to her about how to masturbate. J. also talked about how defendant discussed vibrators and other sex toys with her when she was younger. Thus, the jury was already aware that defendant had inappropriate conversations with his children. The inclusion of the e-mails did not drastically paint defendant's character in a different light.
We also reject defendant's claim that the specific nature of the e-mails—its content detailing defendant's homosexual encounter—is so highly prejudicial that its introduction necessarily warrants reversal of his conviction. As we discussed earlier, cases like Gillespie noted that "[e]vidence of homosexuality is extremely prejudicial." (Gillespie, supra, 852 F.2d at p. 479.) Gillespie, however, was decided approximately two decades ago. As noted in Garcia, supra, 229 Cal.App.4th 302, "[p]ublic attitudes toward homosexuality have changed considerably since that time." (Id. at p. 315.) "While it would be naive to believe that prejudice against homosexuals is a thing of the past, we acknowledge it is not as antithetical to a fair trial as it once was." (Ibid., fn. omitted.) Although details of defendant's homosexual affair—and his disapproval of his son's homosexuality—may be potentially inflammatory, introduction of such evidence can be harmless depending on the context of the case. As we have determined, given the weight of the other evidence against defendant, including the evidence of his propensity to discuss sexually explicit topics with his children, we do not believe there is a reasonable probability defendant would have received a more favorable verdict had the e-mails been excluded.
c. Ineffective Assistance of Counsel
Next, defendant argues that if we find that defense counsel opened the door to admission of the e-mail evidence, he must have rendered ineffective assistance of counsel.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
As we have already previously explained, we do not believe admission of the evidence prejudiced defendant. There was already overwhelming evidence of defendant's guilt based on his e-mails confirming J.'s accounts and the portions of the pretext call that corroborated the abuse. Thus, even assuming that defense counsel erred and opened the door to the admission of the evidence, defendant's claim of ineffective assistance of counsel would fail because he cannot demonstrate prejudice.
3. The Pretext Call
Defendant argues his trial counsel was ineffective for failing to object to the admission of the pretext call at trial. He argues J. was acting as an agent of the police at the time she made the call, so his statements were involuntarily obtained. We find no merit in defendant's contentions.
"It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion." (People v. Neal (2003) 31 Cal.4th 63, 79.) "A statement is involuntary if it is not the product of ' "a rational intellect and free will." ' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' [Citation.] ' "The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear petitioner's will to resist and bring about confessions not freely self-determined.' [Citation.]" [Citation.] In determining whether or not an accused's will was overborne, "an examination must be made of 'all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.' " ' " (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).)
"A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions." (Maury, supra, 30 Cal.4th at p. 404.) Confessions are involuntary if they are obtained by threats or violence, direct or implied promises, or other improper influences. (People v. Benson (1990) 52 Cal.3d 754, 778.) For example, psychological coercion can result in involuntary confessions. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-287.) In Fulminante, the defendant confessed to a murder after a fellow inmate, acting on behalf of the police, offered to help the defendant get protection from other inmates if the defendant confessed. (Id. at p. 283.) At the time, the defendant had been beginning to receive rough treatment from other inmates, because there was a rumor that he had killed a child. (Ibid.) The Supreme Court found there was a credible threat of violence against the defendant, which motivated the defendant's confession and rendered it the product of coercion. (Id. at p. 288.)
Even assuming J. was acting as an agent of the police during the pretext call, we do not find J.'s statements to defendant during the pretext call to be so psychologically coercive as to render his responses involuntary. Defendant argues that his mental illness and psychological state exacerbated the involuntariness of his statements. However, it is well-settled that there must be some coercive state action to support a due process violation claim under the Fourteenth Amendment. (Colorado v. Connelly (1986) 479 U.S. 157, 165.) The fact that defendant's mental state might render some of his statements to be less reliable does not automatically mean his statements were involuntary. "[W]hile mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry." (Ibid.)
Defendant claims that J. took advantage of his mental frailty when she made the pretext call. The record belies his claim. There is nothing in the record that indicates J. or Detective Shimada specifically took advantage of defendant's bipolar condition or psychological state during the pretext call. At trial, J. testified she was aware defendant had been hospitalized in the psychiatric unit in May 2010. The pretext call took place in August 2010, several months after defendant's hospitalization. J. acknowledged that she knew defendant's mental state had been worsening up until his hospitalization. However, she also testified she knew he normalized quickly after restarting his medication. J. asserted that she had seen him since his hospitalization and it seemed like he was "essentially back to normal."
Furthermore, the tactics Detective Shimada urged J. to utilize during the pretext call were not so suggestive as to override defendant's free will. Detective Shimada told J. to express anger to incite a response. Thus, if defendant said he did not remember an event, J. was told to begin talking about events as she remembered them. J. was also instructed to act frustrated if defendant said he could not recall certain events. However, the use of strategies or tactics to coax defendant into confessing does not necessarily render a confession involuntary. Even the use of deceptive statements, including misrepresentations and omissions, is permissible, so long as they are not of the kind likely to produce false confessions. (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.) In fact, much more psychologically coercive techniques have found to be proper by the California Supreme Court. (See, e.g., In re Walker (1974) 10 Cal.3d 764, 777 [statement to defendant en route to a hospital that he may be dying and the smart thing to do would be to confess to the police was deceptive but did not render subsequent admission inadmissible]; People v. Thompson (1990) 50 Cal.3d 134, 167 [admission was voluntary even though police officers lied and said they found physical evidence linking defendant to crime].)
Defendant's statements in the pretext call also demonstrate that the tactics employed by Detective Shimada and J. were not coercive enough to override his free will. Defendant flatly denied some of J.'s accusations. He told J. he did not believe some of the incidents she had described had happened. He agreed that certain events may have happened but questioned the details that J. recounted. His demeanor during the pretext call does not align with his claim that his mental state rendered him so suggestible as to render his statements involuntary.
For the same reasons, we must also reject defendant's claim that his statements were coerced, because he believed the purpose of the conversation was to assist J. in her therapy and validate her feelings. As we just noted, defendant did not unquestioningly adopt all of J.'s statements.
During the call, defendant agreed not to argue with J. and mentioned several times that he wanted to validate her feelings.
Trial counsel renders ineffective assistance when counsel's representation falls below an objective standard of reasonableness. (Strickland, supra, 466 U.S. at p. 688.) Since defendant's statements to J. during the pretext phone call were voluntary, objecting to the admission of the pretext call would have been futile. Defense counsel was under no obligation to raise a futile objection; thus, defendant cannot prevail on his claim of ineffective assistance of counsel.
4. CALCRIM No. 1112
The court instructed the jury on section 288, subdivision (c)(1) with CALCRIM No. 1112 as follows: "The defendant is charged in Count 7 with a lewd or lascivious act on a 14- or 15-year-old child who was at least 10 years younger than the defendant in violation of Penal Code section 288(c)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desire of (himself/herself) or the child; [¶] 3. The child was 14 or 15 years old at the time of the act; [¶] AND [¶] 4. When the defendant acted, the child was at least 10 years younger than the defendant. [¶] The touching need not be done in a lewd or sexual manner. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct. [¶] It is not a defense that the child may have consented to the act." (First set of italics added.)
Defendant contends the inclusion of the phrase "[t]he touching need not be done in a lewd or sexual manner" negated the requirement that the touching must have been committed with sexual intent, an essential element of the crime as set forth under section 288, subdivision (c)(1). We review defendant's claim of instructional error de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) After examining the challenged instruction, we find no error.
Defendant argues he may raise this claim of instructional error despite failing to object below, because the court has a sua sponte duty to correctly instruct on the elements of the charged offenses. The People do not assert the claim has been forfeited. We therefore proceed to address defendant's arguments on the merits.
The language in CALCRIM No. 1112 as instructed is an accurate statement of the law. Section 288, subdivision (c)(1) criminalizes acts as defined under section 288, subdivision (a), when the victim is a child of 14 or 15 years and the perpetrator is at least 10 years older than the child. Section 288, subdivision (a) states that any person who "willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part of member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony." " 'Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.' " (People v. Shockley (2013) 58 Cal.4th 400, 404.) "[C]ases have made clear that a 'touching' of the victim is required, and that sexual gratification must be presently intended at the time such 'touching' occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted." (People v. Martinez (1995) 11 Cal.4th 434, 444.) Thus, the instruction correctly stated the touching need not be done in a lewd or sexual manner.
As defendant acknowledges, a nearly identical argument was rejected by the appellate court in People v. Sigala (2011) 191 Cal.App.4th 695 (Sigala). The Sigala court considered a challenge to the same language in former CALCRIM No. 1120, the instruction for a charge of continuous sexual abuse of a minor (§ 288.5). (Sigala, supra, at p. 699.) It rejected the defendant's challenge, finding the statement that the " 'touching need not be done in a lewd or sexual manner' " to be an accurate statement of the law, a conclusion that we also reach here. (Id. at p. 700.)
Defendant argues the analysis in Sigala is flawed, because it relied on People v. Martinez, supra, 11 Cal.4th 434, which addressed CALJIC Nos. 10.41 and 10.42, not CALCRIM No. 1112. We disagree. Although Martinez considered a different jury instruction, its statements summarizing the elements of the offense as codified in section 288 applies with the same force here.
Additionally, Sigala is not undermined by the decision in People v. Cuellar (2012) 208 Cal.App.4th 1067 (Cuellar). Cuellar, like Sigala, considered the language as set forth in former CALCRIM No. 1120. (Cuellar, supra, at pp. 1070-1071.) The Cuellar court found that taken alone, "the sentence is capable of the construction defendant suggests," and "[a]t best, it is unfortunate and possibly confusing." (Id. at p. 1071.) However, Cuellar ultimately concluded that reading the instructions as a whole and taking into consideration the overwhelming evidence against the defendant, the jury instruction did not mislead the jury. (Id. at p. 1072.)
Defendant argues that unlike Cuellar, the evidence of his guilt was not overwhelming. He points out that the jury deadlocked at his first trial, and the main issue for this particular count was not whether he touched J.—that point was undisputed, because they had given each other massages—but whether he possessed the requisite intent when he touched her.
Essentially, defendant urges us to consider the challenged language in CALCRIM No. 1112 in a vacuum. However, as emphasized in Cuellar, a jury instruction is not reviewed alone. Rather, instructions must be examined as a whole. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In context, CALCRIM No. 1112 is not as ambiguous as defendant claims. CALCRIM No. 1112 clearly states that to find defendant guilty, the jury must find the defendant committed the act "with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child." Furthermore, the prosecutor clarified the instructions during closing argument and explained it as follows: "It need not be done in a lewd or sexual manner. We'll talk about what that means . . . . [¶] . . . [¶] If somebody walks up to a child and just rubs them on the hair, most of us would say, that's not a lewd or lascivious act, unless it's done with a sexual intent. It is if it's done to arouse the defendant, because they're turned on by hair, that's a lewd or lascivious act. It doesn't have to be obviously lewd or lascivious."
Based on our review of the instructions, we do not believe the jury was erroneously instructed on the elements of section 288, subdivision (c)(1). Any ambiguity that arises from examining the challenged sentence in isolation is resolved by viewing it in context of the remainder of the jury instructions.
Defendant argues to the extent the trial court did not have a sua sponte duty to correct the instruction, trial counsel was ineffective for failing to request a correction. Since we find the challenged instruction is a correct statement of law, defense counsel was not ineffective for failing to challenge it below.
5. J.'s Therapist's File
Before trial, defendant served a subpoena duces tecum on J.'s therapist's office, requesting records of J.'s sessions with her therapist. Defendant sought attendance records to determine when the sessions took place and if anybody accompanied her. The People opposed the subpoena and filed a motion to quash, arguing the therapist records were confidential and protected from disclosure. The People's motion to quash was granted in part, and some of the records were redacted and released to the defense. Defendant requests an independent review of the subpoenaed records to determine whether the trial court properly withheld disclosure of some of the requested material. The People oppose defendant's request, arguing that J.'s therapist already testified at trial about whether individuals were present at J.'s therapy sessions.
We find defendant's request to be reasonable. Due process requires that any material exculpatory evidence be disclosed to the defense in a criminal trial, even when the evidence is subject to a state privacy privilege, "at least where no clear state policy of 'absolute' confidentiality exists." (People v. Webb (1993) 6 Cal.4th 494, 518.) "When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are 'material' to guilt or innocence." (Ibid.) Thus, this court must conduct a review of the sealed records to ensure defendant's due process rights were not violated. We have done so and conclude that the therapist's files contain no additional evidence that would have been material to the defense.
6. Cumulative Prejudice
Lastly, defendant argues the cumulative effects of all the alleged errors violated his constitutional right to a fair trial. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) Here, however, we have found only one error (the admission of the explicit e-mails), and the error was not prejudicial. It follows that defendant's claim of cumulative prejudice must be rejected.
II. WRIT PETITION
1. Ineffective Assistance of Counsel Claims Related to Admission of Defense Videos
In his petition for writ of habeas corpus, which we ordered considered with his appeal, defendant argues his trial counsel was ineffective when he (1) failed to secure a final ruling on the admissibility of the videos depicting him in a manic state, (2) failed to submit sufficient evidence to authenticate the videos, and (3) failed to make an adequate offer of proof to demonstrate the video was relevant.
As we previously discussed, to prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland, supra, 466 U.S. at p. 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
We have already determined that defendant forfeited his appellate arguments pertaining to the admissibility of the videos because he failed to obtain a final ruling below. We have also determined that notwithstanding this forfeiture, defendant's claims on appeal would still fail, because the trial court did not abuse its discretion when it determined the videos were not properly authenticated. However, even assuming that defendant's trial counsel was ineffective for failing to obtain a final ruling and for failing to provide a sufficient offer of proof to authenticate the videos, reversal would not be required unless defendant can demonstrate he was prejudiced by the exclusion of the videos.
Defendant argues prejudice is readily demonstrated, because the videos could have permitted the jury to understand the extent of defendant's bipolar condition and the profound effect it had on J. Defendant insists the contents of the videos would have given jurors perspective and insight into why J. was motivated to falsely accuse her father of molesting her. Furthermore, the videos, which were purportedly recorded when defendant was going through a manic period, could have helped the jury to understand how defendant could have been manic at the time of the pretext call even though he sounded and behaved like a normal person.
We disagree and do not find it is reasonably probable that had the videos been admitted, defendant would have received a more favorable result. Although defendant claims the videos would have presented new evidence that would have aided his defense, the videos would have been largely cumulative of evidence that was already presented. For example, defendant insists the videos depict how suggestible he is when he is manic, and how his memory suffers from defects as a result of his disorder. However, defendant already presented testimony from Dr. Hensley and Dr. Ermshar on this very topic. Dr. Hensley testified that defendant had been taking medications that could affect this memory and further testified that he believed defendant had problems with his memory. Dr. Ermshar testified that individuals suffering from bipolar disorder are more suggestible. Additionally, the jury was aware that defendant had suffered from a manic attack in 2010 at around the time the police were called and J. made her accusation to the police.
Defendant also claims the videos would have helped the jury to understand that he may appear normal while going through a manic episode. It is unclear how this would have assisted his defense. Defendant did not argue he was in a similar mental state and was manic at the time J. made the pretext phone call.
Moreover, the videos would have added little to the defense's theory that J. was motivated to lie about the molestation, because she wanted her mother to leave defendant. The taxing effect of defendant's mental disorder on his family was already before the jury. Diane, defendant, and J. all testified about the effects of defendant's mental health on the family's life. Although video clips of defendant in a manic state may have provided the jury with some additional context, we do not believe its admission would have made it reasonably probable the jury would have acquitted him of the charges.
Defendant insists prejudice from exclusion of the videos can be inferred from the fact that his first trial resulted in a hung jury. We agree that a hung jury in a first trial sometimes supports a finding of prejudice in a second trial. (See People v. Diaz (2014) 227 Cal.App.4th 362, 385.) However, the relevance of the hung jury is diminished when the evidence presented at both trials is dissimilar. (Ibid.) Despite defendant's claim that one of the only significant differences between the first and second trials is that one of the video clips was shown at his first trial, there were several other major differences. The most noteworthy difference is that the charges that defendant molested J.'s two other sisters were dropped for the second trial. Thus, the evidence—and the presentation of the evidence—differed greatly between the first and second trial. We therefore reject defendant's claim that the fact that the first trial ended in a hung jury demonstrates the existence of prejudice.
2. Ineffective Assistance of Counsel for Failing to Impeach J.
At trial, J. described an incident when defendant touched her inappropriately when she was around 10 years old. Several years later, defendant told Diane and a counselor, who informed child protective services. Child protective services investigated the matter. J. testified that she was never interviewed during the course of the child protective services investigation, and the investigation concluded the touching was accidental based off of defendant's statements to the investigator. Fitts, the investigating social worker, confirmed J.'s statement that she had not been interviewed at the time, despite it being required that he speak with the complaining witness. Fitts testified at trial that according to his notes, he spoke with one of J.'s sisters.
Defense counsel, however, had a copy of the report prepared by Fitts following his investigation. According to the report, he conducted a "Home Visit with [one of J.'s sisters] and father." At the time, the sister that Fitts's report indicated he spoke to was only four years old. J. was 12 years old. On appeal, defendant argues it is likely that Fitts spoke with J. and accidentally wrote down the name of J.'s sister in his report. Given the age discrepancy between J. and her sister, defendant argues it is implausible that Fitts confused the two girls. Trial counsel has submitted a declaration asserting that he cannot remember why he did not question Fitts in more detail about the likelihood that he made a mistake on the report. Thus, defendant argues trial counsel rendered ineffective assistance when he failed to press Fitts about his investigation.
We do not believe trial counsel's failure to impeach J. with evidence she spoke with Fitts rendered his representation ineffective. There is a satisfactory explanation for why trial counsel did not press Fitts on this issue—the prosecution already directly asked Fitts about this during direct examination. During the trial, the prosecutor asked Fitts the following question: "Any possibility in your mind that you could have mixed up the names [of J.] and [J.'s sister] in your narrative?" Fitts responded, "No. That's not something I would have done." Fitts's response was unequivocal. He clearly rejected the notion that his report contained an error. Thus, trial counsel could have reasonably made the tactical decision not to question Fitts any further, because it would have been futile.
Even assuming trial counsel was ineffective for failing to press Fitts about his report, we do not believe defendant has demonstrated prejudice. Defendant claims that if trial counsel had elicited testimony from Fitts that he had spoken with J. about the abuse, it could have resulted in an opportunity to impeach J. and demonstrate to the jury that she lied on the stand about not speaking with child protective services during their investigation. Defendant further argues that such testimony, if elicited, would have also shown that J. initially told child protective services a version of events that corroborated defendant's account that the touching was accidental. However, it is not reasonably probable that impeaching J. would have resulted in a more favorable verdict for defendant. J.'s credibility had already been put in doubt. Defendant was able to cross-examine her about multiple instances where she had lied in the past. The defense was also able to present evidence that J. also had multiple opportunities to report the abuse as a child but failed to do so.
3. Ineffective Assistance of Counsel for Failing to Obtain Memory and Cognitive Testing
Next, defendant argues his counsel rendered ineffective assistance, because he failed to arrange for a psychological examination to determine if he suffers from memory or cognitive defects. He also argues this court's denial of his application for $10,000 in fees to retain an expert psychologist to evaluate him for memory or cognitive defects deprived him of his constitutional right to effective counsel.
Evidence of defendant's memory deficits was presented at trial. Dr. Hensley, defendant's treating psychiatrist, testified that defendant had self-reported having memory problems three times since he began treatment in 2000. Dr. Hensley also testified that he believed defendant suffered from memory issues. However, Dr. Hensley conceded on cross-examination that he had never evaluated defendant to determine whether he had any memory or cognitive defects due to his bipolar disorder. He also testified that defendant was evaluated on May 24, 2010, after his most recent hospitalization, and at that time his memory appeared to be intact and within normal limits.
Trial counsel also had Annette Ermshar, an expert in memory suggestibility and Bipolar I disorder and its effect on memory, testify at the trial. Ermshar explained that individuals with Bipolar I disorder are more suggestible than ordinary people. The more manic episodes an individual has, the more likely they suffer from long term cognitive defects. Cognitive defects last on average about 27 months. Ermshar opined that cognitive testing was not required to diagnose memory defects, though it is a helpful tool. Ermshar had never evaluated defendant to see if he suffered from memory defects.
Defendant argued at trial that he suffered from memory defects. He insisted that the admissions made in the pretext call were suspect, because he did not actually remember the events J. described. Defendant testified he only remembered bits and pieces of actual events. He also argued his memory defects and suggestibility arising from his bipolar disorder caused him to say things during the pretext call that could be considered incriminating. Trial counsel did not have defendant evaluated for memory defects. As a result, the prosecution attacked the defense's theory by pointing out that defendant had never been objectively evaluated for memory or cognitive defects, and his history of memory problems was mostly self-reported.
After being appointed to represent defendant on appeal, appellate counsel filed an application under seal with this court seeking $10,000 to retain Dr. Karen Froming as an expert witness. According to his declaration, appellate counsel says Dr. Froming said that memory, cognitive, and attention deficits are present in almost all patients with bipolar disorder. Furthermore, after reviewing defendant's case, Dr. Froming believed defendant should have been evaluated to ascertain what kind of memory or cognitive deficits he may suffer. Appellate counsel claims this evaluation would provide objective evidence that defendant suffers from such problems.
In a declaration submitted with defendant's petition for writ of habeas corpus, trial counsel explains he did not have defendant tested for memory defects, because he did not believe it would have been helpful. In appellate counsel's declaration accompanying the application for expert fees, appellate counsel states that trial counsel told him he did not retain an expert to conduct testing on defendant because it did not occur to him to do so.
We reject defendant's claim that trial counsel rendered ineffective assistance for failing to secure memory and cognitive testing. Although Dr. Froming's assertion that all individuals who have bipolar disorder also suffer from memory, cognitive, or attention deficits may be considered stronger than Dr. Ermshar's testimony, trial counsel was under no obligation to shop around for an expert until he had found one that will testify to a certain defense. (See People v. Williams (1988) 44 Cal.3d 883, 944-945.)
Additionally, trial counsel articulated a rational, tactical reason for failing to secure testing for defendant. Trial counsel stated in his declaration that he did not believe testing would be helpful. This was not an unreasonable determination. "Unlike a later reviewing court, the [trial] attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Harrington v. Richter (2011) 562 U.S. 86, 105.)
Here, trial counsel had already secured the testimony of defendant's treating psychiatrist, Dr. Hensley, who gave his medical opinion that defendant suffered from memory problems. Trial counsel also had Dr. Ermshar testify, and she clarified that she did not believe testing was a required component of making a clinical or medical opinion that a patient suffers from memory deficits. The jury was already informed of defendant's memory and cognitive defects. There was evidence that defendant self-reported having problems with his memory several times before the criminal case against him had commenced and J. made her allegations to the police. Dr. Hensley also testified that defendant took a variety of medications, many of which could impact his memory. Dr. Ermshar testified that individuals with bipolar disorder can be suggestible and may suffer from memory problems. Based on the foregoing, we do not believe defense counsel's strategy to rely on Dr. Hensley and Dr. Ermshar's testimonies was incompetent and constitutionally deficient. "Strickland does not guarantee perfect representation, only a ' "reasonably competent attorney." ' " (Harrington v. Richter, supra, 562 U.S. at p. 110.)
With the benefit of hindsight, we agree that it may have been helpful to test defendant for memory or cognitive defects to provide additional objective evidence that he in fact suffers from such impairments. Nonetheless, "[c]ounsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." (Harrington v. Richter, supra, 562 U.S. at p. 107.)
Defendant also argues this court violated his due process rights when we denied his request for expert fees to conduct memory and cognitive testing. He argues this court was statutorily and constitutionally obligated to provide funds to compensate for an expert under sections 1241, 987, 987.2, subdivision (a), and 987.8.
We agree with defendant that the right to counsel includes the right to effective counsel, which includes the right to ancillary defense services like expert witnesses that are shown to be reasonably necessary in preparation of a defense. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319, fn. 9.) Typically, a claim of ineffective assistance of counsel based on a failure to call witnesses at trial must be supported by declarations or testimony showing " 'both the substance of the omitted evidence and its likelihood for exonerating the accused.' " (People v. Bolin (1998) 18 Cal.4th 297, 334.) Defendant, however, failed to articulate how additional testing was reasonably necessary to prepare for his defense.
In the declaration attached to his request for fees, appellate counsel indicated he would have used the expert fees to secure the services of an expert psychologist, Dr. Froming, who would evaluate defendant for memory and cognitive defects. However, appellate counsel did not articulate what type of tests Dr. Froming intended to use. If Dr. Froming intended to test or evaluate defendant by observing his behavior or asking him questions, the results of such an exam would suffer from the same flaws that were exploited by the prosecution against Dr. Hensley and Dr. Ermshar's testimonies—chiefly, that defendant could either dupe the exam or exaggerate his own symptoms. Absent a showing that Dr. Froming's tests would produce results that override the prosecution's core concerns, defendant has not established that additional testing was reasonably necessary to assist his defense.
Having concluded that defendant's trial counsel did not render ineffective assistance for failing to submit defendant to memory or cognitive testing, we also reject defendant's claim that this court deprived him of due process when we denied his application for expert fees.
DISPOSITION
The judgment is affirmed.
Defendant's petition for writ of habeas corpus is denied.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.