Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC62511
Kline, P. J.
Danell Pratt appeals from convictions of sexual intercourse with an intoxicated person, sexual intercourse with a minor, and contributing to the delinquency of a minor. He contends the trial court erred in excluding evidence offered to explain the victim’s complaints of pain and evidence of appellant’s family’s history with the East Palo Alto Sheriff’s Office and in admitting prejudicial photographs and hearsay evidence. We affirm.
Statement of the Case
Appellant was charged by amended information filed on February 13, 2007, with sexual intercourse with a person prevented from resisting by intoxication (Pen. Code, § 261, subd. (a)(3)) (count 1); sexual intercourse with a person unconscious of the nature of the act (Pen. Code, § 261, subd. (a)(4)) (count 2); unlawful sexual intercourse with a minor more than three years younger than the perpetrator (Pen. Code, § 261.5, subd. (c)) (count 3); and misdemeanor contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1)) (count 4). It was alleged that the first two counts of the information were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(3). It was further alleged that as a result of a December 30, 1998, conviction for violating Penal Code section 246.3 (willful discharge of a firearm in a grossly negligent manner), appellant had suffered a prior strike conviction (Pen. Code, § 1170.12, subd. (c)(1)), and serious felony conviction (Pen. Code, § 667, subd. (a)) and served a prior prison term (Pen. Code, § 667.5, subd. (b)).
Trial began on February 21, 2007, and on February 28 the jury returned verdicts of guilty on counts 1, 3 and 4 and not guilty on count 2. After a bench trial on the bifurcated prior allegations, the court found the allegations true.
On June 26, 2007, appellant was sentenced to a total prison term of 18 years, consisting of the middle term of six years on count 1, doubled to 12 years pursuant to Penal Code section 1170.12, subdivision (c)(1); a middle term of two years for count 3, stayed under Penal Code section 654; a concurrent six-month jail term on count 4; and consecutive terms of five years for the prior conviction (Pen. Code, § 667, subd. (a)) and one year for the prior prison term (§ 667.5, subd. (b)).
Statement of Facts
C.D. testified that in June 2005, she was 16 years old and living at the Mile High Group Home. She was on probation after pleading guilty to a January 2005 robbery: her boyfriend, Tyrone, had committed the robbery in her presence and she fled the scene with him. Among the conditions of her probation were staying away from Tyrone and from East Palo Alto, and not using drugs. C. testified that she did not use drugs or drink alcohol (except for having had a beer for her birthday in September 2004), and that she did not have relationships with other men.
After living with her grandmother for 14 years, C. went to live with her father but was removed from his custody in September 2004 because he hit her. She subsequently lived in group homes or other placements, with periods when she ran away and lived with Tyrone and his aunt in East Palo Alto and sometimes stayed with her grandmother. She spent a month and a half in juvenile hall after her conviction and was placed at Mile High in March 2005. She ran away from the home to see Tyrone when he was released from custody on home passes. She testified that the director of Mile High, Tegre Miles, was “like a big brother” to her and she discussed her problems with him.
C. testified that, on June 15, 2005, she and her friend Crystal went into 20/20 Fashions at the Hilltop Mall for job applications. Appellant, behind the counter, said he was the store manager, told C. she was “cute” and suggested he might be able to get her and Crystal jobs and discounts at the store. Appellant, who said his name was David, gave C. his phone number and told her to call him as soon as she left the store. The card he gave her with his number bore the name Danell.
C. called appellant about the job and he asked her when they could “hook up” and tried to get to know her better, asking things like who her boyfriend was and where he was from. She asked if he knew Tyrone and he did. Appellant said he was from East Palo Alto. The next day, appellant called C. and they talked for a couple of hours. Appellant wanted to go on a date and C. said she did not know whether she could. She told him she was 16; she did not remember exactly what he told her but testified she thought he was younger than he really is, “probably about twenty.” Appellant subsequently told C. he was 25 years old and ultimately told her he was 30. C. testified that at this time Tyrone was still incarcerated but they were “doing fine” and her purpose in getting to know appellant was to get a job. She testified that she told Crystal she was not sure she would go out with appellant because she did not know whether her father would let her. She was also concerned about Tyrone finding out.
On Friday, June 17, C. was at her father’s house on a pass and got into an argument with him. Later in the day, very upset, she left without permission and went to her friend Chanel’s house nearby. At this point, she was considering going out with appellant that evening. C. contacted her grandmother to say she wanted to come to her house. She also spoke with appellant on the phone and told him about the argument with her father. He told her he would pick her up after work and she told Chanel she might be going with him. C. called Toni Armstrong, a staff member at the group home, and said she had had an argument with her father and was having appellant pick her up. Armstrong told C. to call Miles, but C. did not do so.
Appellant called C. to say he was leaving work and told her Miles had come into the store and accused him of talking to C. Appellant said he was very upset and “he doesn’t know who he’s messing with.” C. was “shocked” and explained that Miles was the group home facilitator and a former police officer. Appellant said, “I don’t care, I’ll drop his ass.”
Appellant arrived to pick C. up about 11:30 or 11:45 p.m. and she met him outside. The plan was for him to take her to her grandmother’s house. She was still upset about the argument with her father. While at Chanel’s, she had had two sips of beer.
C. realized appellant was driving toward East Palo Alto and worried because she did not want Tyrone to find out, but appellant told her not to worry. She was also worried because a condition of her probation prohibited her from going to East Palo Alto, a point she had expressed to appellant.
Appellant drove to a “little back club” where he talked to a man for five or ten minutes while C. waited in the car. He then drove to a liquor store and bought a fifth of Hennessy, a soda and, at C.’s request, gum. They drove around, then stopped outside a house appellant said was a crack house and talked in the car. Appellant told C. to open the Hennessy and, over the next 20 minutes, she drank the entire bottle. Appellant declined any, saying he did not drink and had gotten the bottle as a gift for her. Appellant tried to kiss C. and she told him not to. She was feeling intoxicated and “really sick.”
After about 25 minutes, appellant drove to another house and went inside, then after about five minutes came to get C, saying they were going to his friend’s house. She was stumbling badly and he helped her walk. Inside, C. saw the man from the club and a woman, said “hi” to them, and went to the restroom. She fell and appellant picked her up and led her to a room that looked like a basement, with a washer and dryer and a blanket or bedspread and pillow on the floor. C. lay on her back on the cover. Appellant left briefly, then returned and took a condom from a box C. had noticed on the dryer. He then got on top of her, straddling her on his knees, and started to kiss her neck, she protested, then she blacked out. She woke up and found him still straddling her, then blacked out again. She believed appellant was clothed at this time and was not sure whether she was, though she was wearing clothes when she lay down.
The next thing C. remembered was waking up in her grandmother’s living room early the next afternoon, “full of feces and throw up.” She felt dirty and wanted to take a shower, felt pain in her vaginal area and buttocks, had a knot on her head and some red marks on her breasts, had a very upset stomach and a headache, and felt sore and “[s]ort of out of it.” Her grandmother told her a man named David Page had dropped her off and asked her what had happened. After telling her grandmother, C. called appellant and asked him what had happened. C. testified that appellant told her they had had sex, she asked, “are you serious?” and he told her she had performed oral sex on him. He told her to take a shower because “they can identify him by his pubic hairs.” Her grandmother would not let her take a shower and called Miles, who told C. not to shower. C. noticed that appellant’s phone number and text messages and calls between her and appellant had been erased from her cell phone, which she had had with her the prior evening. She had not erased this data.
C.’s grandmother testified that she received a call at 4 a.m. from a man who said he was David Page and wanted to bring C. to her house. He said C. had been at a party, had been drinking alcohol, was vomiting and had a problem with her bowels. When they arrived, C. was unconscious, “completely covered” with excrement and smelled “like a whiskey barrel.” The next morning, C. got three phone calls from appellant. Her grandmother got on the phone and appellant told her to have C. take a shower; she said she would not.
Tegre Miles testified that he received a call from Toni Armstrong at about 8:30 on Friday evening saying C. had told her she planned to leave her father’s house and go out with a boy she had met at 20/20 Fashions. Miles had Armstrong get some more information from C., including the person’s name and description, then went to the store. Miles introduced himself to appellant, who fit the description he had been given, and asked if he knew C. Appellant said no and that he was married. Miles explained that C. was 16 years old and living in a facility, asked appellant to leave her alone, and told him about statutory rape and contributing to the delinquency of a minor. Appellant acted like he did not know the girl and repeated that he was married. Shortly after Miles left the store, Armstrong called saying C. had called her, upset that Miles had gone to the store. Miles called C.’s father and told him to watch her closely. About 11:30 p.m., C.’s father called and told Miles C. had “awoled.”
About 4 a.m., C.’s grandmother called, uncharacteristically “hysterical” and “agitated,” saying C. had been brought home by a young man and was extremely intoxicated and defecating and urinating uncontrollably. Miles called and spoke to C. at 8 a.m. and found her “pretty much lucid.” She told him a “wild story” about being at a party, then going with a young man to a liquor store in the East Bay and ending up in East Palo Alto. In response to questions from Miles, C. complained of pain in her rectum and vaginal area and said she had some bruises or marks on her. Miles asked C.’s grandmother a number of questions about the person who had brought C. home. After considering the situation, Miles felt a crime might have occurred and called back, telling C.’s grandmother not to let C. take off her underwear, go to the bathroom by herself or take a shower.
He arrived at the house at about 11 a.m. and found C. “distraught,” “emotional,” “teary” and “really, really agitated,” with her hair “matted and wild,” defecation stains on her pants and feces and vomit on the pallet on the floor. C. said she had been at a party with the man from the mall and he had had her drink, then gave it back to her. She said she started to feel more intoxicated after they left the party and the liquor store and went to a location, and that she blacked out “after a small situation when they had contact.” C. said while she and appellant were sitting in the car drinking the Hennessy, he propositioned her for sex and she said, “I don’t get down like that, I need to get to know you better.”
Miles took C. to Highland Hospital and then to the Keller Center for a rape examination. On the way, C. was still very distraught and expressed worry about having violated her probation by going to East Palo Alto, asking, “why did he take me there, I didn’t want to go over there.” Miles also recalled C. saying that she remembered appellant “climbing on her, straddling her, and inserting his penis” into her vagina.
C. testified that she had not showered, but she had used the bathroom and wiped with tissue afterward. She was examined by emergency room and forensics nurse Nicole von Stijgeren, following the state’s “OCJP 923 form” for sexual assault. The examination consisted of interviewing and doing a head-to-toe assessment of the victim, conducting a Wood’s Lamp examination (an ultraviolet lamp that fluoresces in the presence of sperm) and a pelvic examination, collecting swabs and taking photographs. In response to questions from the nurse, C. reported that her vagina and rectum were sore, and said she did not have any pertinent medical condition that would affect the interpretation of current medical findings and did not have any pre-existing physical injuries. Asked yes/no questions about specific sexual acts during the assault, C. said “yes” to “penetration of vagina by penis” and to orally copulating appellant, as well as to kissing and licking. She said “attempted” to penetration of vagina by fingers; “unsure” to penetration of anus by penis, finger or object, to appellant orally copulating her, to oral copulation of anus and to “suction injury” and biting; and “no” to penetration of vagina by object. C. also indicated she was unsure whether there had been ejaculation and whether contraception had been used. C. reported that she had drunk a fifth of Hennessey and thought she might have had Ecstasy in her drink.
C. had her menstrual period at the time of the examination. During the examination, she reported tenderness in her vagina and rectum. Von Stijgeren observed an abrasion over her right eyebrow and scratches and redness on her breasts. The Wood’s Lamp examination revealed two streaks running from C.’s throat to her chest. Von Stijgeren did not see evidence of trauma on visual inspection of C.’s vaginal area but testified that trauma sometimes exists that cannot be seen with eyes alone. Accordingly, she took photographs with a colopscopy camera that magnifies the area. The photographs, however, were obscured by the “excessive amount of menstrual blood” and were taken at too low a magnification. Von Stijgeren testified that she could not rule out the possibility that there was trauma in C.’s vaginal or genital area, and that her findings were consistent with the history C. described.
Diana Cummings, a nurse practitioner and Clinical Forensic Coordinator at the Keller Center, testified as an expert in forensic examination. One of Cummings’s responsibilities was to review the records of sexual assault examinations at the center. She testified that the photographs of C.’s external genital area were obscured by “significant” menstrual blood so that she could not evaluate the skin for injuries. The photograph of C.’s cervix was also obscured by blood. Cummings stated that from these photographs it was not possible to say there were no injuries. She testified that absence of injury is not a significant factor in determining whether someone has been vaginally sexually assaulted, as 38 or 40 percent of people who have been sexually assaulted have no genital injuries or trauma. She did not consider absence of sperm in a vagina or cervical area a significant factor either, explaining that in the majority of the over 800 sexual assault examinations she had performed there was no sperm present. Cummings testified that she could not say to a degree of medical certainty that C. had sexual intercourse, nor could she conclude intercourse did not occur. Cummings concurred with von Stijgeren’s conclusion that the results of C.’s examination were consistent with the history she reported, and testified that the seminal fluid on C.’s chest and her report of tenderness supported the opinion that she had had sexual intercourse within 24 hours of the examination.
Cummings testified that one of the questions on the sexual assault form is whether the victim has suffered any injuries in the last 60 days that “may affect the interpretation of current physical findings.” Cummings testified that a major surgery or injury within 60 days of the examination might “cloud the findings in terms of complaints of pain or injury” and would be something she would consider. Asked whether a complaint of injury or surgery within 60 days of the sexual assault examination would be a factor in her conclusion as to whether a complaint of pain supported a finding that a sexual assault had occurred, Cummings responded, “It depends on the procedure and injury.” She testified that if the victim reported an injury or surgery within 60 days prior to the examination from which she had not beenfeeling pain, the injury or surgery would be irrelevant to her interpretation of the examination.
Subsequent testing confirmed the presence of semen on one of the swabs taken from C.’s neck area and demonstrated that the DNA profile for this semen matched appellant’s DNA profile. No evidence of semen was found on oral, vaginal, cervical or anal swabs from C.’s examination or on items of C.’s clothing.
Criminalist Alice Neumann calculated that this DNA profile would occur once in 770 quadrillion individuals in the African-American population, once in 320 quintillion individuals in the Caucasion population and once in 8.7 quintillion individuals in the Hispanic population.
While at the Keller Center, C. spoke with Detective Ceferino Gonzalez. She testified that she still felt sore and nauseated, her head still hurt and she was very tired and emotional, but she was truthful with him. Gonzalez asked her to make a pretext phone call to appellant and gave her questions to ask him with the goal of getting him to admit he had sex with her. The tape of this call was played for the jury. In it, appellant told C. she drank the whole bottle of Hennessey and they went to the guest room of his “partner’s” house and “made out.” She asked, “So we didn’t do it?” Appellant said, “Well . . . for a little bit cause you started . . . you know what I mean? You was like, really drunk.” Appellant told her, “All you kept telling me is, ‘fuck me, fuck me.’ I’m like, what the hell? But you was drunk and swearing.” C, asked if they used a condom and appellant said “two.” She said she did not want to get pregnant and he said, “No . . . hell, nah. You ain’t got to worry about that.” She asked, “I didn’t suck you up or nothing,” and he said she did. With reference to her having blacked out, C. asked if they were “doing it” while she was asleep. Appellant said, “Um-um, hell no!” C. asked, “So that’s when you stopped?” Appellant replied, “Yeah, it was like, uh-uh, I’m cool.”
Gonzales testified that when he spoke with C. at the hospital she was tired and crying, and said she had a headache and stomachache. She told him that she did not remember actually having sexual intercourse with appellant and that she blacked out after seeing him fully clothed holding a condom. She said she called appellant after waking up at her grandmother’s and he told her to take a shower because he was afraid “they” would identify him by his pubic hairs.
Gonzalez spoke with C. again on June 22, at which time she was more attentive and aware than she had been at the hospital. C. said that she had invited appellant to attend the party at Chanel’s house but he declined and stayed in the car outside. She told Gonzales she had been getting irritated that appellant was taking so long to pick her up. She did not tell Gonzales she had called her grandmother or Toni Armstrong, or that she had wanted a ride to her grandmother’s house. She said she had consumed “sips of beer” at Chanel’s but was sober before she and appellant stopped at the liquor store; by the time they got to appellant’s friend’s house, she was feeling intoxicated. C. said that when she woke at her grandmother’s, she felt something had happened and called appellant. During that call, he began laughing and, when she asked why, said “because we did it.” Gonzales responded in the affirmative when asked whether C. reported that she asked if appellant was serious and he replied, “Yeah, we had sex.”
Also on June 22, Gonzales and Detective Taylor met with appellant at the 20/20 Fashions store. Appellant said he met C. in the store and gave her his phone number to call when she was coming in so he could give her a discount. He said Miles had come into the store and, although appellant denied knowing C., told him C. was 16 years old. On Friday or Saturday, C. called appellant and said she was feeling sick and needed a ride home. He picked her up from outside an apartment; she was drunk and crying, her speech was slurred, and she said she wanted to go home. He found her grandmother’s number in her cell phone and called, then drove C. to her grandmother’s house. Appellant said he did not know C. but helped her because she sounded distressed and he was the sort of person who would help someone in trouble. He denied kissing C. or having any kind of sex with her, saying she was “a kid.” He said he was 30, and married. He denied taking C. to East Palo Alto and insisted the story she had told the police was not true. The police told appellant, as a ruse, that they had retrieved appellant’s finger prints from C.’s breast area and thigh; appellant said he had put her in and out of his car and she was wearing a halter top, but stated his fingerprints could not have been on her thigh. He said C. fell and hit her head when she was getting out of his car at her grandmother’s house.
Chanel Santiago confirmed that C. came to her house on Friday evening upset about a fight with her father. She testified that C. was on and off her cell phone a lot. C. left about 11:30 p.m., saying a friend was picking her up but not where she was going. She was “just fine” when she left, but wanted to get away from Chanel’s house because she did not want her father to come and “have problems” there. Chanel had never seen C. drink alcohol except for some beer on C.’s birthday in 2004. Chanel had not discussed the events of June 17 with C., although after Chanel received a call from a private investigator C. asked if she had spoken with him and Chanel told her she had.
Discussion
I.
Appellant contends the trial court erred in excluding evidence he wanted to introduce to explain C.’s complaints of pain in her rectum and vaginal area. One of appellant’s pretrial motions was to admit evidence that C. underwent an abortion approximately one to two months prior to June 17, 2005, in order to give the jury a possible alternative explanation for the pain C. reported after the alleged offense. In explaining the relevance of the evidence, defense counsel noted that the physical examination did not reveal injuries that would explain C.’s pain and that the prosecution would argue the reported pain was caused by appellant’s conduct “when in medical records related to the abortion she’s making the same complaints.”
In its pretrial motion to exclude evidence, the prosecution stated that C. reported to the nurse at the time of the sexual assault examination that she had had an abortion on May 4, 2005, but that medical records showed the abortion was actually performed on April 6, 2005, some two and a half months before the offense, and that C. reported having had no complications or further medical treatment associated with the abortion, including no on-going pain after the first week.
The court felt there might be a foundational problem and questioned whether a preliminary showing was needed to support the possibility that the abortion could have been a source of pain two and a half months later, noting that the burden was on appellant as the proponent of the evidence. The court explained that “[i]f the two events were a little bit closer in time, it might be more logical,” but that it was not sure “where two and a half months fits into the spectrum.” The court also expressed concern under Evidence Code section 352 with the prejudicial effect of the proposed evidence, which the jury might impermissibly use as character evidence. Defense counsel suggested some of the court’s questions would be answered in the hearing required by section 782, which governs evidence of sexual conduct of the complaining witness offered to attack the witness’s credibility.
All further references are to the Evidence Code unless otherwise indicated.
When the prosecution argued evidence of an abortion had nothing to do with credibility, defense counsel agreed with the court’s clarification that the evidence was not being offered as to credibility but rather to show a different source of the reported pain. The court stated it would not foreclose the defense from attempting to establish a medical foundation for the evidence but, in the absence of a foundation, tentatively ruled it inadmissible. The court reiterated its concern with prejudicial effect and potential misuse of the evidence. The prosecutor offered that C. would testify that she rested for four to five days after the abortion and did not have pain or further medical treatment, and that Diana Cummings would testify that if C. had been suffering from an injury or infection they would have seen some sign of this on her physical examination. The court stated that this offer of proof reinforced its view that a medical foundation would be needed before it would consider admitting evidence of the abortion.
In his opening statement, defense counsel referred to C. having gotten pregnant a few months before the alleged offense. In response to the prosecutor’s subsequent argument that this remark violated the court’s order not to mention the abortion, the court clarified that it would permit no evidence of a prior pregnancy unless and until the defense demonstrated relevance to a material fact such as injury.
During Diane Cummings’s cross-examination, over the prosecution’s objection, the court permitted defense counsel to elicit testimony that one of the questions on the OCJP form used during sexual assault examinations was whether the victim has suffered any injuries in the last 60 days that “may affect the interpretation of current physical findings.” Cummings testified that a major surgery or injury within 60 days of the examination might “cloud the findings in terms of complaints of pain or injury.” Asked whether a complaint of injury or surgery within 60 days of the sexual assault examination would be a factor in her conclusion as to whether a complaint of pain supported a finding that a sexual assault had occurred, Cummings responded, “It depends on the procedure and injury.” She acknowledged that such a report would be something she would consider in determining whether a sexual assault had occurred, and that it would affect her opinion if she knew the victim had not complained of pain prior to the alleged assault. The prosecutor objected when defense counsel asked whether C. had complained of an injury within the 60 days prior to the offense and defense counsel withdrew the question.
After Cummings’s testimony, the prosecutor expressed concern that the defense questioning was directly related to the abortion which defense counsel knew fell outside the 60-day window. When defense counsel said he would be asking Nicole von Stijgeren about the 60-day prior injury question on the form, the prosecutor asked how this could be relevant if the only injury in this case was something to which the court had excluded reference. The court found this objection “well taken.” The court acknowledged the defense point that if the only physical evidence was the victim’s complaint of pain, the defense had to have an opportunity to explain there could be causes other than a sexual assault, but reiterated that it would not allow the excluded evidence to “creep in.”
After trial, appellant filed a motion for a new trial arguing, among other things, that the court erred in excluding evidence of the abortion. This motion pointed out that the OCJP form reflected C. having told the nurse that she had an abortion on May 4, 2005—within 60 days of the offense—and argued that this should have been enough to establish the medical foundation the court required. The motion also argued that questions about the statement on the form would have been relevant to C.’s credibility, as she gave the nurse a different date for the abortion than the one reflected on a medical form from Highland Hospital.
At the hearing on the new trial motion, the prosecutor reiterated that the abortion actually occurred on April 6 and that the defense had not offered a medical foundation. She also argued the credibility issue had not been raised previously and was not part of the court’s ruling. Defense counsel argued that the issue of C.’s false statement or misstatement about the date of the abortion came as a “slight surprise” at trial and C.’s giving an incorrect date for such a profound event raised questions about her statements to the nurse, which the nurse relied on heavily in concluding a sexual assault had occurred. The court denied the motion for a new trial, stating that the defense never offered the necessary medical foundation and even with a medical foundation the court would have had serious concerns under section 352 because of the serious risk of prejudice from the “particularly inflammatory” nature of the evidence with regard to a 16 year old.
Appellant now argues that evidence of the abortion was relevant because the critical fact at issue in the case was whether he had sexual intercourse with C., C.’s report of vaginal and anal pain was the only evidence that intercourse had occurred, and the abortion evidence was the only evidence available to support an alternative explanation for the pain she reported.
“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) Only relevant evidence is admissible. (§ 350.) “ ‘[E]vidence which produces only speculative inferences is irrelevant evidence.’ ” (People v. Babbitt (1988) 45 Cal.3d 660, 682, quoting People v. De La Plane (1979) 88 Cal.App.3d 223, 242, italics omitted.) The trial court is vested with wide discretion in determining the relevance of evidence, and a decision to admit or exclude evidence “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice (People v. Jones (1998) 17 Cal.4th 279, 304).” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Kelly (1992) 1 Cal.4th 495, 523.)
Under section 354, in order to preserve a claim of erroneous exclusion of evidence, the proponent of the evidence must make the “substance, purpose, and relevance” of the evidence known to the court “by the questions asked, an offer of proof, or by any other means.” “ ‘Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.’ (In re Mark C. (1992) 7 Cal.App.4th 433, 445 . . . .) [¶] . . . [¶] An offer of proof must consist of material that is admissible, and it must be specific in indicating the name of the witness and the purpose and content of the testimony to be elicited. (In re Mark C., supra, 7 Cal.App.4th at p. 445.) ‘ “The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue.” ’ (Id. at p. 444; see Douillard v. Woodd (1942) 20 Cal.2d 665, 669 . . . .)” (People v. Rodrigues (1994)8 Cal.4th 1060, 1176-1177.) An offer of proof “must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53; People v. Foss (2007) 155 Cal.App.4th 113, 128.)
Here, appellant urges that the requisite foundation for the evidence he sought to admit was supplied by Cummings’s testimony that “any surgery or injury within a 60-day window prior to the offense would affect the conclusions drawn from the examination.” This is not exactly what Cummings testified. Rather, her testimony was that she would “consider” an injury or surgery within 60 days prior to the offense in interpreting the examination, but whether it would affect her conclusion would depend on the procedure or injury. Cummings also testified that if the victim had not been complaining of pain before the offense, the prior surgery or injury would be irrelevant. Thus, Cummings testimony did no more than confirm the court’s concern by stating that an injury or surgery within the 60-day window might be relevant to the assessment whether a sexual assault had occurred, but might not be. Cummings testimony did not support a conclusion that C.’s surgery could have been responsible for the pain C. reported at the time of the offense.
The court’s concern was appropriate. The question on the OCJP form addressed injuries or surgeries which “may affect the interpretation of current physical findings.” Clearly, not every injury or surgery within the 60-day window would have potential to affect the findings of the sexual assault examination. Some such injuries or surgeries might affect a completely unrelated part of the victim’s body, some might have sufficiently healed that they could not play any role in the current evaluation. Without medical evidence concerning the potential relationship between C.’s abortion and her physical condition at the time of the examination, appellant was essentially asking the court, and the jury, to speculate that the abortion might have been the source of the pain she reported. Completely missing was any offer of evidence to demonstrate that this could have been the case. Nor did appellant ever identify what evidence he would offer to demonstrate that the abortion was within the 60-day window prior to the offense or that C. was complaining of vaginal and/or rectal pain between the time of the abortion and the assault. “This speculation and lack of specificity was inadequate to preserve the issue for consideration on appeal.” (People v. Foss, supra, 155 Cal.App.4th at p. 128.)
Given this conclusion, it is not necessary for us to consider the parties’ arguments on the relative probative value and prejudicial effect of the abortion evidence.
Appellant also argues the abortion evidence should have been admitted as relevant to C.’s credibility. A court or jury “may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.” (§ 780, subd. (c).) Where the defendant seeks to use evidence of the complaining witness’s sexual conduct to attack her credibility, the procedures of section 782 must be followed, including a written motion and offer of proof of relevancy and a hearing to determine admissibility. Here, during trial, appellant expressly sought admission of the abortion evidence solely to demonstrate an alternative source of pain. Accordingly, respondent urges appellant forfeited the argument that the evidence should have been admitted as relevant to C.’s credibility. Appellant in turn argues respondent forfeited this challenge by failing to object to the new trial motion on this basis.
Section 782, subdivision (a) provides, in pertinent part, that in specified prosecutions for sexual offenses, “if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:
In discussing the pretrial motion to admit the abortion evidence, defense counsel explicitly stated that the evidence was not being offered with respect to C.’s credibility, only to provide an alternative explanation for her pain. The first time appellant raised the credibility issue was in his motion for a new trial, when he argued he should have been allowed to cross-examine C. about the inconsistency between her statement, reflected on the OCJP form, that she had an abortion on May 4, and the earlier date for the abortion reflected on a medical form from Highland Hospital, because if she gave incorrect information in that regard she may have given other incorrect information to the nurse. At the hearing on the new trial motion, the prosecutor argued that this credibility argument had not been raised before and “therefore would not have been appropriate to be part of the court’s ruling anyway,” that the point was not significant enough to have resulted in a miscarriage of justice, and the court’s ruling “even if that argument had been made, was appropriate.” Defense counsel responded that C.’s giving an incorrect date for the abortion “came as a slight surprise to both of us” and “we both were sort of caught off guard.”
On appeal, appellant argues that he raised the credibility issue “at its first availability” by bringing the new trial motion “when it was revealed during trial that C. made inconsistent statements.” The record belies this assertion. In discussion of the pretrial motions related to the abortion evidence, the first point the court made was that while appellant’s motion asserted the abortion occurred one to two months prior to the offense, the prosecution’s offer of proof indicated the date of the abortion was April 6. Defense counsel stated that his assertion was based on C.’s statement. Later, in discussing the prosecutor’s objection to defense counsel questioning Cummings about the OCJP form’s questions concerning injuries or surgeries within 60 days prior to the examination, the prosecutor referred to “the abortion that was mischaracterized as happening in May . . .” and the court clarified, “not by [defense counsel] but in the report.” The prosecutor continued, “Exactly. But the point is he knows that at this point, first of all, that it was beyond 60 days.”
It is apparent from the record that the defense was aware both before and during trial of the different dates for the abortion indicated by medical forms related to the abortion on the one hand and by C., as reflected on the OCJP form, on the other. The defense nevertheless chose not to press for admission of the abortion evidence as bearing on C.’s credibility. Raising this issue for the first time in a motion for new trial was insufficient to preserve it for review. (See Sepulveda v. Ishimaru (1957) 149 Cal.App.2d 543, 547; 8 Witkin, Cal. Procedure (4th Ed. 1997) Attack on Judgment in Trial Court, § 142, p. 642.) Contrary to appellant’s argument, the prosecutor did point out that appellant had not raised the credibility issue before or during trial, and, in denying the new trial motion, the trial court did not address the merits of the credibility issue, only of the relevance of the proposed evidence to prove a source of C.’s pain. Additionally, it is apparent that appellant’s concern with regard to the abortion evidence was not its value for undermining C.’s credibility but its substantive use to provide an explanation for C.’s reported pain: Appellant’s argument that the court’s exclusion of the evidence was prejudicial is entirely based on the importance of the evidence as an alternative explanation for C.’s pain and never mentions the effect of the evidence on the jury’s evaluation of her credibility. C.’s credibility was challenged in several ways at trial, by reference to her felony conviction and motivation to avoid being found in violation of the terms of her probation, to her relationship with her boyfriend and concern over his learning out she was with appellant, and to inconsistencies and lies in C.’s testimony.
II.
Appellant contends the trial court erred in admitting photographs showing C.’s vagina and rectum. Von Stijgeren, who took the photographs during the sexual assault examination, and Cummings, who subsequently reviewed them, both testified that it was not possible to determine from the photographs whether there was injury to C.’s vaginal or genital area because the photographs were taken with insufficient magnification and were obscured by C.’s menstrual blood.
Appellant objected to admission of the photographs as “inflammatory” and not “probative to any injury.” The prosecutor argued the photographs should be admitted because they confirmed the witnesses’ testimony that their subject was obscured by blood, they were not inflammatory and the jurors all indicated on voir dire that it would not be problematic for them to see graphic photographs. The court found the probative value of the photographs outweighed their prejudicial effect, noting they were “graphic” but “not inflammatory.”
As stated above, we review the trial court’s decision to admit the evidence for abuse of discretion. (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) “The trial court’s exercise of discretion in determining relevance and the admissibility of photographs will not be disturbed on appeal unless their probative value clearly is outweighed by their prejudicial effect.” (People v. Hughes (2002) 27 Cal.4th 287, 336.)
Appellant argues the photographs were inadmissible because they did not prove that sexual intercourse occurred and therefore were not relevant to any element of the charges. He urges the photographs were cumulative of von Stijgeren’s and Cummings’s testimony and any “slight” probity they may have had was outweighed by the “substantial and patent” danger of prejudice due to their “shocking and inflammatory” depiction of a 16-year-old’s genetalia.
We find no abuse of discretion in the court’s determination that the photographs were relevant. A significant aspect of appellant’s defense was his argument that no physical evidence demonstrated the penetration required to support his rape conviction. Cummings testified that as part of her review of sexual assault examinations, when an examiner did not see injuries, she would review the photographs and independently evaluate whether they showed any injuries. Consistent with von Stijgeren’s testimony that her ability to determine whether C. sustained vaginal or genital injuries was impaired by C.’s menstrual blood, Cummings testified that the photographs she reviewed were obscured by blood. The photographs were offered to demonstrate this point, in other words, to help explain why the medical testimony was not able to determine whether C. had sustained such injuries. While appellant is correct that he did not dispute the fact that C. was menstruating at the time of the examination, the point of the photographs was not to demonstrate that she was menstruating but to illustrate the extent to which her menstruation affected what could be observed during the examination.
As appellant recognizes, photographs are not “irrelevant or inadmissible simply because they duplicate testimony, depict uncontested facts, or trigger an offer to stipulate. (People v. Crittenden [(1994)] 9 Cal.4th 83, 132–133; People v. Pride [(1992)] 3 Cal.4th 195, 243.)” (People v. Stitely (2005) 35 Cal.4th 514, 545.)
The photographs “served to clarify” the medical testimony (People v. Crittenden, supra, 9 Cal.4th at p. 132) and “could assist the jury in understanding and evaluating the testimony.” (People v. Price (1991) 1 Cal.4th 324, 441.)
Appellant does not explain why the photographs should be considered unduly prejudicial except to state that they “revealed a 16-year-old girl’s genitalia.” The trial court concluded the photographs were “graphic” but “not inflammatory.” We cannot find this conclusion an abuse of discretion. These were clinical photographs taken during a medical examination. There is no reason to believe they would bias or inflame the passions of the jury.
III.
Appellant next contends the trial court erred in permitting Tegre Miles to testify about his conversations with Toni Armstrong concerning Armstong’s conversations with C. As described above, Miles testified that Armstrong told him C. had said she planned to leave her father’s house and go out with a boy she met at the Hilltop Mall, who worked at 20/20 Fashions, gave him appellant’s name and physical description, and told him the plan was for appellant to pick C. up. This testimony was admitted over defense hearsay objections, for the limited purpose of showing how Miles responded to the information he was given. Miles then testified, again over objection and for the same limited purpose, that after his interaction with appellant at the store, Armstrong told him C. had called her, upset, asked why Armstrong had sent Miles to speak with appellant and said she had told appellant Miles was a retired police officer. At this point, appellant objected again and the court sustained the objection.
Appellant contends the trial court erred in admitting Miles’s testimony about Armstrong’s statements because the state of mind exception to the hearsay rule (§ 1250, subd. (b)) is concerned with the state of mind of the declarant and Armstrong’s state of mind was irrelevant. This argument misses the mark because the evidence was not admitted as hearsay, for its truth, but for the nonhearsay purpose of explaining Miles’s state of mind and response to the information. “ ‘ “ ‘Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.’ ” ’ (People v. Duran (1976) 16 Cal.3d 282, 295 . . ., italics omitted.) Such evidence is not hearsay. (People v. Lo Cicero (1969) 71 Cal.2d 1186, 1189–1190 . . . .)” (People v. Thornton (2007) 41 Cal.4th 391, 447.)
Appellant further argues that Miles’s testimony relating Armstrong’s statements was inadmissible because it was not relevant to any issue in the case as neither Miles’s state of mind nor his reasons for taking any action he took were at issue. Respondent urges the testimony was relevant to show why Miles went to talk with appellant at the mall and useful to explain why he directed C.’s grandmother to preserve her clothing and not allow C. to shower.
Appellant did not object to Miles’s testimony on grounds of relevance. Bypassing the questions whether he forfeited the issue (People v. Carey (2007) 41 Cal.4th 109, 126 [failure to raise relevance objection to photographs forfeited issue on appeal]; People v. Cole (2004) 33 Cal.4th 1158, 1198-1199 [same]; People v. Alvarez (1996) 14 Cal.4th 155, 204, fn. 14 [failure to object to testimony as irrelevant forfeited issue on appeal]; but see People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [“inadmissible hearsay” objection sufficient to preserve relevance argument where evidence “totally devoid of any nonhearsay probative value”]), and whether the testimony was in fact relevant, we are convinced that any error was harmless. Most of what Miles related having been told by Armstrong—that C. had said she planned to leave her father’s house and go out with appellant, whom she had met at 20/20 Fashions at Hilltop Mall, and that C. was upset about Miles going to talk to appellant and had told appellant Miles was a retired police officer—was described by C. in her trial testimony. That Armstrong related to Miles C.’s report of appellant’s name and description could not have prejudiced appellant, as there was no issue of identity at trial.
Appellant urges he was prejudiced by Miles’s testimony because it corroborated C., who was an unreliable witness. This argument is difficult to accept, since C. was the source of all the information Armstrong relayed to Miles. The gist of appellant’s argument is that Miles’s testimony was offered for the truth of the matter stated—that C. planned to go out with appellant—and permitted the jury to infer that Miles or Armstrong believed appellant planned to sexually assault C. and were correct in their beliefs. The jury was expressly instructed not to consider the statements at issue for the truth of the matter stated and is presumed to have followed this instruction. (People v. Young (2005) 34 Cal.4th 1149, 1214; People v. Delgado (1993) 5 Cal.4th 312, 331.) Additionally, the inferences appellant suggests were by no means compelled from the evidence: As the director of C.’s group home, Miles could well have been moved to look into the circumstances of an unknown male with whom C. was forming a relationship with no thought that appellant was acting with criminal intent. Moreover, as appellant stresses, the only real question in this case was whether appellant had sexual intercourse with C. Nothing in the statements Miles related had any bearing whatsoever on this question. Even if Miles and Armstrong suspected that appellant planned to sexually assault C., their suspicion would be irrelevant to the question whether appellant committed the specific act of sexual intercourse.
IV.
Appellant’s argues that the trial court erred in excluding evidence of his family’s history with the East Palo Alto Sheriff’s Office. As described above, when the police interviewed appellant at the Hilltop Mall on June 22, appellant told them he gave C. his phone number to call for a discount at the store; she called him for a ride home because she was feeling sick and when he picked her up outside an apartment she was drunk, crying, and her speech was slurred; and he did not have any sexual contact with her or take her to East Palo Alto.
Defense counsel asked Detective Gonzales, on cross-examination, whether he had had “knowledge or experience with the Pratt family in this area before you went and interviewed” appellant. The prosecutor’s relevance objection was sustained. Defense counsel then asked whether there was discussion of appellant’s twin brother Lanell when Gonzales talked to appellant, and Gonzales responded affirmatively. After a few questions about the ruse regarding appellant’s fingerprints, in which Gonzales was asked whether he knew at the time of the interview that “the DNA had matched his twin brother” and said he did not, the cross-examination concluded.
Prior to presentation of the defense case, the court invited defense counsel to put on the record an evidentiary issue that the parties and court had discussed. Defense counsel stated that he had “sought a preliminary indication from the court on whether or not I would be allowed to ask Detective Gonzales on defense direct examination regarding the hostile dynamic between the Pratt family members, immediate family members of the defendant, and local law enforcement being the East Palo Alto and the sheriff’s office that has a substation in East Palo Alto for the purpose of explaining potential false statements in the June 22nd statement of Mr. Pratt that was played last week.”
The court stated: “[T]he threshold issue that we discussed was that Mr. Pratt has elected not to testify, which of course is his right. However, in order to get into issues of his substantive motivation with regard to why he gave the statements that he did to Sergeant Gonzales, the court would need some affirmative evidence to support getting into the issue of family members’ contacts with local law enforcement. That is to say without Mr. Pratt testifying, there’s no evidentiary basis to infer that he had such an alleged motive to fabricate facts to Sergeant Gonzales. So it seems to me that’s a factual predicate to even go down the road considering that extraneous evidence.” The prosecutor added that “the People would then want to be able to impeach the defendant with his prior contacts with the police where he did not apparently lie to the police. And that opened an entire area under [section] 352 that would require a substantial amount of testimony and witnesses as well.” The court said it could foresee “lots of problems in terms of deciding the perimeters of such evidence making close determinations of probative value versus prejudicial effect” and concluded that it did not need to undertake “an elaborate [section] 352 analysis” because there was not a sufficient foundation “that there was such a substantive motivation by Mr. Pratt.”
Appellant argues that a sufficient foundation for the evidence was established by his offer of proof that he wanted to elicit testimony from Gonzales about prior incidents between appellant’s family and the East Palo Alto Sheriff’s Department to explain why appellant lied to the police. Appellant urges that the evidence was offered to establish precisely the point the trial court found lacking, appellant’s motive to lie. He argues the evidence would not have confused the jury or consumed undue time and was the only means by which the defense could explain appellant’s statements to the police, given appellant’s constitutional right not to testify. (U.S. Const., 5th Amend.; Ca. Const., art. I, § 15.)
As discussed above, an offer of proof must “be specific in indicating the name of the witness and the purpose and content of the testimony to be elicited” (People v. Rodrigues, supra, 8 Cal.4th at pp. 1176-1177) and “must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies, supra, 44 Cal.App.4th at p. 53; People v. Foss, supra, 155 Cal.App.4th at p. 128.) Here, appellant was specific as to the witness and purpose of the testimony he sought to elicit, but not as to its content. Appellant stated on the record, and states in his briefs here, only that he sought to question Gonzales “regarding the hostile dynamic” between appellant’s family and the police, and “about prior incidents” between the family and the police. He did not explain what the hostile dynamic or prior incidents consisted of or how they would have given appellant a motive to lie to the police when they questioned him about his contact with C. Appellant’s offer of proof was “conclusory and concerned only the area of questioning,” and “did no more than speculate as to what might be proven.” (People v. Foss, supra, 155 Cal.App.4th at p. 128.) We find no abuse of discretion in the trial court’s determination that it was insufficient.
Defense counsel did address this subject in his opening statement, as follows: “[Appellant] lied to Detective Cef Gonzales. But you are also going to hear why he did that. You are going to hear that Danell Pratt had been raised in East Palo Alto where he was raised in a community that taught him not to trust East Palo Alto Police Department. Where his older brother had been shot by local law enforcement, his identical twin brother Lanell, L-A-N-E-L-L, was arrested by local law enforcement, his uncle had been in and out of jail all through Danell’s childhood at the hands of local law enforcement. He knew nothing else other than not to trust local law enforcement.” These statements, of course, were not evidence; they did not satisfy the requirements for an offer of proof and counsel did not refer to these points in discussing the evidentiary issue with the court.
Appellant suggests in his reply brief that no offer of proof was required because the subject was raised on cross-examination, by his question whether Gonzales had prior knowledge of or experience with appellant’s family. Section 354’s requirement of an offer of proof does not apply to evidence “sought by questions asked during cross-examination or recross-examination.” (§ 354, subd. (c).)
In any event—and putting aside question of admissibility under section 352 which the trial court refrained from determining—we are convinced any error in precluding this line of questioning was harmless. The consciousness of guilt suggested by appellant’s lies to the police was also suggested by the evidence that he falsely told Miles he did not know C., that he lied to C.’s grandmother about his name and how he came to be with C., and that he told both C. and her grandmother to have C. take a shower. Despite the absence of evidence of visible injury, the medical evidence supported the conclusion that appellant had sexual intercourse with C., and the pretext phone call further confirmed this conclusion. Even if the defense could have persuaded the jury that appellant lied to the police because of distrust borne of his family’s interactions with the police in the past, this evidence would not have addressed the other evidence pointing to his guilt. Moreover, while appellant’s false statement to the police may have given the jury additional reason to discredit his defense, it could only have done so as a general reflection of his consciousness of guilt in sexually assaulting C.; it would have had no bearing on the determination whether the sexual assault included sexual intercourse. It is not reasonably probable a different result would have been reached if appellant had been able to question Gonzales about appellant’s family’s past relations with the police.
Appellant argues the alleged error must be reviewed under the more stringent test for prejudice from constitutional error (Chapman v. California (1967) 386 U.S. 18) because exclusion of the evidence prevented him from presenting a defense. As appellant recognizes, “[a]s a general proposition, the ordinary rules of evidence do not infringe on a defendant’s right to present a defense.” (People v. Frye (1998) 18 Cal.4th 894, 945; People v. Cornwell (2005) 37 Cal.4th 50, 82.) Appellant’s false statement to the police was not so critical to the prosecution’s case that failure to permit appellant to suggest an explanation for it left him unable to present a defense.
V.
Finally, appellant argues that his convictions must be reversed due to the cumulative prejudice from the alleged errors discussed above. This argument is premised, of course, on the assumption that the challenged rulings were in fact erroneous. Having concluded that this is not the case, we must find this last contention baseless.
Disposition
The judgment is affirmed.
We concur: Haerle, J., Richman, J.
“(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. “(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court. “(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. “(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. “(5) An affidavit resealed by the court pursuant to paragraph (2) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant raises that issue on appeal, the court shall allow the Attorney General and appellate counsel for the defendant access to the sealed affidavit. If the issue is raised on collateral review, the court shall allow the district attorney and defendant’s counsel access to the sealed affidavit. The use of the information contained in the affidavit shall be limited solely to the pending proceeding.”
We are not convinced that this exception applies here. Defense counsel specifically stated that he was making an offer of proof about what he wished to pursue on direct examination of Gonzales. It is not even clear that his question on cross-examination about appellant’s family was intended to address this subject: It was followed by questions about discussion of appellant’s brother, fingerprint evidence, and the brother’s DNA. If defense counsel wanted to pursue the theory that past history of appellant’s family’s relations with the police gave appellant a motive to lie to the police, he did not make this clear to the court during the cross-examination, only in preparation for presentation of the defense case. (See People v. Allen (1986) 42 Cal.3d 1222, 1270, fn. 31 [rule that offer of proof not necessary to challenge sustained objection to question asked on cross-examination not applicable where clear court has overlooked question’s probable relevance].)