Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CR-07-02436.
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Michael John Rodrigues was convicted after jury trial of three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), and one count of spousal rape (§ 262, subd. (a)(1)), involving three victims. The jury also found true special allegations as to each count that defendant committed an offense against more than one victim. (§ 667.61, subds. (b) & former (e)(5) [now (e)(4)].) The jury found defendant not guilty of two counts of sexual penetration by foreign object (§ 289, subd. (a)(1)), one count of forcible rape, and one count of attempted forcible rape (§§ 664, 261, subd. (a)(2)) as to a fourth victim. The trial court sentenced defendant to four consecutive terms of 15 years to life. (§ 667.61, subd. (i).)
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that (1) the trial court erred by admitting evidence of uncharged sexual offenses pursuant to Evidence Code sections 1108 and 352; (2) the trial court erred and his trial counsel rendered ineffective assistance by allowing a witness to testify broadly about rape trauma syndrome; (3) the trial court erred and his trial counsel rendered ineffective assistance by allowing a victim to testify that she had told defendant that she agreed to the investigating officers’ request to take a polygraph test; (4) the trial court erred and his counsel rendered ineffective assistance when the court denied counsel’s request to present testimony by a defense investigator; (5) his counsel rendered ineffective assistance during his cross-examination of a victim; (6) the trial court erred and his counsel rendered ineffective assistance when the court excluded the entire declaration of a victim; and (7) the prosecutor committed misconduct during his argument to the jury. In addition, defendant requests that this court conduct an in-camera review of the medical records of one victim, and he contends that cumulative error in his trial requires reversal of the judgment. As we find no error requiring reversal, either individually or cumulatively, we will affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with the appeal. The petition alleges trial counsel rendered ineffective assistance in his handling of various aspects of defendant’s defense. We have disposed of the petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(1)(B).)
BACKGROUND
Defendant was charged by a consolidated indictment/information with four counts of forcible rape (§ 261, subd. (a)(2); counts 1, 2, 7, & 9), one count of spousal rape (§ 262, subd. (a)(1); count 3), one count of inflicting corporal injury on a spouse (§ 273.5, subd. (a); count 4), two counts of sexual penetration by foreign object (§ 289, subd. (a)(1); counts 5 & 6), and one count of attempted forcible rape (§§ 664, 261, subd. (a)(2); count 8), involving four different victims. The indictment/information further alleged as to all counts except count 4 that defendant committed an offense against more than one victim. (§§ 667.61, subds. (b) & former (e)(5) [now (e)(4)].)
Count 4 was charged as a lesser included offense of count 3. The jury was instructed to consider count 4 only if it found defendant not guilty of count 3. As the jury found defendant guilty of count 3, it did not complete the verdict form for count 4.
Prior to trial, defendant moved for disclosure of the medical records of the alleged victim of counts 1 and 2. After hearing argument from the parties, the trial court held an in camera hearing in order to “look through the records to see if there’s something that is relevant that the defendant might be entitled to.” After reviewing the records, the court denied defendant’s motion.
Defendant also moved to exclude all Evidence Code section 1108 evidence. After holding an Evidence Code section 402 hearing, the court stated that it would “take the motion under submission and... allow re-argument after [the alleged victims] have testified.” After hearing the victims’ testimony, the court excluded the proffered testimony of some witnesses but admitted the proffered testimony of others. The court excluded the proffered testimony of Veronica Gonzalez, Diane Diaz and Javana Sammons, but admitted the proffered testimony of John Klauer and Misty R.
The Prosecution’s Case
Counts 1 and 2
Jane Doe met defendant in 1999 when he was looking for a missing dog in the apartment complex where she lived. They eventually entered into an intimate relationship. Defendant typically visited Jane at her apartment in the early morning hours after his shift. He would arrive in his patrol car, wearing his uniform. One day, Jane received a telephone call from a woman who identified herself as defendant’s wife, Kristi. Jane told Kristi that she knew that the Mikey Rodrigues she was going out with was not married. Approximately two months into Jane’s relationship with defendant, after she got to know him better, she told defendant that she did not want to see him anymore. He then called her several times a day wanting to still see her, and he came to her apartment repeatedly and knocked on her door.
The true name of the victim of counts 1 and 2 was not disclosed to the jury. The other victims identified themselves to the jury. Accordingly, we will refer to them by their names here.
Sometime in middle to late 1999, defendant came to Jane’s apartment and insisted on coming inside, even after she told him that she did not want him to. He repeatedly rang the doorbell, opened and closed the mail slot, and pounded on the door until she let him in. He came inside and, while they were talking, he walked Jane backwards into her bedroom. She sat down on the bed and told him that they had to break off their relationship. He proposed marriage and she told him no. He tore off her underwear and penetrated her vagina with his penis even though she said that she did not want to have sex with him. Afterwards, she was able to push him away. He laughed and left the apartment, and she locked the door behind him.
A similar thing happened months later, in the winter of 2000. Jane was on her break at work when defendant called her on her cell phone and insisted on seeing her on her lunch hour. She agreed to meet him at her apartment. When she got there, she told him again that she did not want to see him anymore. Once again he proposed marriage. He pushed her against the couch in her apartment and pulled down her pants. He took off her underwear and penetrated her vagina with his penis even though she said, “No. Don’t. Leave me alone.” However, this time when Jane pushed defendant away, he hit his head on the edge of a chair. He got up, got dressed and left. Jane did not see defendant again.
Jane never reported the two incidents involving defendant until a Hollister police officer came to her home one day and questioned her about him.
Count 3
Kristi met defendant in September or October 1994. She was driving home from a baby-sitting job when she noticed a patrol car following her. When she pulled over, she asked defendant, the officer in the patrol car, if she had done something wrong. They had a conversation and began dating shortly thereafter. They married in May 1996.
About four years later, Kristi noticed some unfamiliar phone numbers on defendant’s cell phone bill. She called one of the numbers that had showed up more than once, which turned out to be Jane Doe’s work number. Kristi asked Jane Doe why the phone bill showed the number being called “in the wee hours of the morning.” Jane Doe said that defendant had been calling and visiting her. In the summer of 2005, John Klauer, a licensed private investigator, advised Kristi on how to look up information about people online. Kristi had told John that defendant had been unfaithful to her.
Because some witnesses have the same last name, in order to avoid confusion, we will often refer to them by their first name only.
Kristi testified that one night in February 2006, she and defendant were in bed, starting to have sex, when “[i]t got a little scary, weird kind of.” Defendant acted like “someone I had never seen before.” He pulled off her clothes and grabbed her hair. “[H]e held my hair and asked me if I liked it like that.” She responded “No. No.” She told him to stop and she tried to push him away but he continued. He held her down and he forced her legs open with his hands, causing a bruise on her inner thigh. He penetrated her vagina with his penis, ejaculated, and then went to sleep. She was frightened and “in shock.” “[L]ike I said, I never saw that side” of him. The next morning, Kristi told Anisha Klauer what had happened. Anisha told her that it was a form of rape and that she needed to report it. Kristi did not report it because “[i]t was my husband.”
Anisha testified that she met Kristi when their husbands worked together at the Sheriff’s Department. One Saturday morning in February 2006, Kristi called Anisha and said that the night before defendant had raped her. Kristi said that defendant had held her down in bed by her hair and forced her legs apart. When she told him no, and to stop, he continued, causing her to have bruises on her thigh. Kristi said that she had never seen that side of defendant before and that she was really shocked. Anisha told her husband John Klauer what Kristi had said and he told Anisha to tell Kristi to report it to the police. John also said that if Kristi did not want to report it to the police, she should call the sheriff’s department because that was defendant’s employer. Kristi told Anisha that she was afraid to report it because she did not think that anything would be done about it.
Some time after this incident, detectives from the sheriff’s department interviewed Kristi during their investigation of defendant. At that time, Kristi told the detectives essentially what she testified to at trial. At the direction of the sheriff’s department, Kristi also reported the February 2006 incident to the Hollister Police Department. Anisha did not make a report of Kristi’s phone call until Hollister police officers questioned her following Kristi’s report of it to them.
Kristi and defendant started marriage dissolution proceedings and she and her children moved into her parents’ home. She also got a restraining order against defendant. One night, when Kristi had been drinking, defendant called her but she would not answer the phone. Defendant then came and knocked on the door and looked in the windows. Because her child’s friend was with her, and Kristi did not want the friend to have to walk home while defendant was outside, Kristi put the children in the car and drove down the street. She was pulled over by a Hollister police officer and told to get out of the car. She was arrested for suspicion of driving under the influence, but the charges were dismissed after she filed a motion arguing that it was an unlawful stop, “because the arresting officers listened to, at the time, the estranged husband of myself, Mr. Rodrigues” and “they never contacted me or talked to me....”
As a result of the incident, Kristi lost custody of her children and was allowed only supervised visits with them for six hours every Saturday. After she attended alcohol rehabilitation, she tried to get custody of her children back, but the family court told her that she had to attend AA for a longer period of time first. Kristi was devastated, and she told defendant that she would do anything to get her children back. Defendant asked her to talk to his defense investigators, and she did so in September 2008. She answered their questions and they typed up a statement for her to sign. She read it and signed it. The statement was “true and honest.” Soon thereafter, Kristi was allowed overnight visits with her children, and she entered into a 50-50 custody agreement with defendant as part of their judgment of dissolution against the advice of her attorney.
Kristi testified that at the time of defendant’s trial, she was living with Brian Cain. Cain testified that he and Kristi were living together and that they have a child together. Their relationship started while Kristi was separated from defendant and living with her parents. Cain has known defendant for 15 years, and he was friends with both defendant and Kristi while they were married.
Cain further testified that, one Saturday in February 2006, Kristi called Cain and said that defendant had got on top of her in bed and pulled her sweat pants down. He had held her by the hair and had said “Is this how you want it every night?” She had said, “No, no, no. Stop, stop, ” but he had kept going. Kristi said that she had sustained a couple of bruises on her leg from being held down.
As the jury found defendant not guilty of counts 5 through 8, we will just briefly relate the testimony relevant to those counts.
Frances V. met defendant in February 2007, when he pulled up in his patrol car behind her parked vehicle at a restaurant at 2:14 a.m. He asked what she was doing and they had a general conversation, but he did not ask to see her driver’s license or proof of insurance. When another car he was blocking had to back out, defendant said, “Follow me, ” so she did. They separately drove to another parking lot. When they got out of their cars, defendant pulled her close to him and kissed her. She pushed him away. He said he had to go on a call and told her to stay there and wait for him. She did. When he returned, he had her follow him to an isolated location off a dirt road. When they got out of their cars, he grabbed her again. When she pushed him away, he grabbed the front of her pants, pulled them, and stuck his hand down the front of them and put his finger into her vagina. She was able to push him away and then drive home to San Jose.
Frances eventually entered into a consensual sexual relationship with defendant. In June 2007, Frances was raped by a Presidio police officer. When she told defendant about the incident, defendant became angry and abusive towards her. Frances testified as to several incidents of sexually assaultive behavior between late June and November 2, 2007.
Count 9
Lee B. was introduced to defendant by her boyfriend, and defendant sent her an email on her birthday in September 2006. She did not know at first who the email was from, because defendant used the name Mark, but he sent her various clues and she figured it out. Defendant then called her repeatedly, saying that he would like to get together and to get to know her. In mid-October 2006, when she was home alone and in a great deal of pain after having had a tooth extracted, she told defendant that he could come over for a few minutes. When defendant arrived, he gave her a hug and said, “It’s good to see you.”
Lee’s children sleep in her front room, so she does not do any entertaining there. Therefore, Lee took defendant to her bedroom. They sat on opposite ends of the bed and watched television and talked. Then defendant unbuckled his belt and started to pull his pants down. Lee asked defendant what he was doing. He responded, “What do you think I’m doing.” She told him, “No, I’m not going to do this, I don’t want to have sex with you.” She said that she did not know him and that she was in a lot of pain. She jumped off the bed and ran around it towards the bedroom door, repeatedly saying no. Defendant grabbed her by the arm, said that nobody tells him no, pulled her back, and threw her down on the bed. He kept her pinned to the bed with her hands over her head while he removed her sweat pants. She repeatedly told him no and struggled to get away. He penetrated her vagina with his penis and ejaculated. She was horrified; she thought that he had just raped her and that there was nothing she could do about it because he was a deputy sheriff. She started to cry and said, “That was not a very nice thing you just did to me.” Defendant left, saying that he’d be in touch. Lee told her friend Susan about the incident soon after it occurred.
Subsequently, defendant repeatedly called Lee, sometimes 10 or 11 times a day. She would not answer the phone for days on end. When she did finally answer the phone, defendant talked her into seeing him again. They eventually began an intimate relationship, and they were still seeing each other when defendant was being investigated on other charges. The sheriff’s office contacted her in October 2007, and she told defendant about the contact when she was on her way to talk to the investigating officers. Defendant told her that, if she really loved him, she would do the right thing for him and protect him. Therefore, Lee did not tell the detectives the truth that day. She told them that she knew defendant and that the person they were describing was not the person she was seeing.
After Lee spoke to the detectives, she spoke to defendant and told him: “Well, honey, I just lied for you. And they asked me if I would take a lie detector test, and I told them yes.” Defendant responded: “Don’t worry. You won’t have to.” Lee said, “If I ever have to go to court for you, I will not lie for you then.”
Lee spoke to a detective from the sheriff’s office again in 2008, after she had stopped seeing defendant. She told the detective then that she had lied the first time to protect defendant. This time she told the detective the truth, which is what she testified to at the trial.
Susan Hirtreiter testified that she was living with Lee in October 2006, when Lee told Hirtreiter that defendant came to their home and forced her to have sex with him. Lee appeared withdrawn, but she did not complain of any physical injuries. Hirtreiter told Lee that she should report it. Lee did not report it at that time.
The Evidence Code Section 1108 Evidence
Misty R.
Misty R. testified that she dated defendant for six to eight months in 1993, before she turned 18. She first met defendant when she was driving home from work one evening and he followed her for a while in his patrol car and then pulled her over. The same thing happened again. Misty could not remember what defendant said to her but he did not give her a ticket either time. They went out to dinner on their first date. She told him how old she was and he told her that he was 32.
They had intercourse between five and ten times. At times it would become violent. Defendant hit her in her chest, back, arms or legs at times, and once he held a gun to her head. He told her on several occasions that he would kill her and hide her body so that nobody would find her. She did not tell anyone about the incidents. When she tried to end their relationship, defendant sat outside her work in his patrol car, followed her, and left her threatening phone messages. She was finally able to break off her relationship with defendant after defendant started seeing Kristi. A few years later, when she was working as a reserve Marina public safety officer, she reported the incidents to the sheriff of San Benito County.
John Klauer
At the time of trial, John Klauer had been a reserve, or part-time, deputy sheriff for 17 years. He knew defendant through that employment. In May 2004, defendant was John’s supervising sergeant when he asked John to go to a motorcycle gang task force event in Laughlin, Nevada with him. John drove them down and they shared a hotel room. They arrived on a Friday and met with other members of the task force on Saturday. On Saturday night, they went out drinking with other off-duty officers. John had five to seven drinks over the course of five to six hours. Around 3:30 a.m., defendant stated that he was going back to their hotel room. As John was walking back to their hotel about 20 minutes later, he encountered defendant talking to a woman in the parking lot near the hotel lobby. Defendant “was kind of groping her, holding her hand, had his arms around her.” It appeared to John “that based on her demeanor and her dress, ... she was most likely a drug addict and probably a prostitute as well.” John said that he was going to go to bed and he left, but he saw defendant entering the hotel with the woman.
John went to the hotel room alone, got ready for bed, got into the bed furthest from the door, and went to sleep. Around 15 or 20 minutes later, he heard the door to the room open and people enter. After a minute or two, John looked over and saw that defendant was fully dressed but the woman had her jeans off. When defendant saw that John was awake, he threw the woman on top of John’s bed and said, “Fuck him....” John immediately pushed the woman away and told defendant to get her out of the room. Defendant grabbed the woman and took her to the other bed, and John went back to sleep.
A few minutes later, the woman approached John and whispered in his ear that she did not want to have anything to do with defendant. John told her to leave. Defendant grabbed the woman by the arm and took her into the bathroom. John got up and listened at the bathroom door. He heard defendant say, “Well, if it’s cocaine you want, I can go out and get you some.” The woman said that she did not want to do anything, and then John heard some rustling noises. He returned to bed. He heard defendant and the woman leave the bathroom, stand at the foot of defendant’s bed, more rustling noises, and the woman scream, “No. Stop. Leave me alone.”
John saw that both defendant and the woman were naked. The woman was lying on her stomach on the bed. Defendant was on top of her holding her arms over her head and trying to penetrate her. She was trying to avoid the penetration by moving her body and she continued to scream for him to stop. Defendant said, “John, come over here and hold this bitch down for me.” John got up, grabbed defendant off the woman, and swore at him. He told defendant that he had to get the woman out of the room. The woman yelled at both John and defendant. Defendant grabbed the woman by the arm and threw her, naked, out of the room.
Defendant threw the woman’s clothes and purse out to her over the next couple of minutes while she banged on the door. John yelled at defendant that he had to leave. Defendant dressed and, three to four minutes after the woman left, he left. John then went back to sleep. Defendant returned to the room around 8:00 a.m., and told John that it was time to leave. They showered and drove home, during which they did not say much to each other. John told an internal affairs officer about the Laughlin incident in July 2004. Because the woman had not reported the incident, so it would be John’s word against defendant’s, nothing further was done. John told Kristi about the Laughlin incident in early 2006.
The Rape Trauma Syndrome Evidence
Jenny Adler, volunteer and counseling coordinator at the Silicon Valley YWCA Rape Crisis Center, testified as an expert in rape trauma syndrome. She did not conduct any investigation in this case and she did not know the specific charges against defendant. She described rape trauma syndrome as “a common set of reactions that rape victims tend to experience following a sexual assault.” It is a way of understanding the experiences of rape victims; it is not a diagnosis.
There are three “stages” to the syndrome. The first stage is “crisis impact, ” the second stage is “reorganization, ” and the third stage is “resolution.” During the crisis impact stage, “there’s a lot of shock and denial.” A lot of victims will not report the sexual assault because they either do not realize that that is what happened or they are trying to pretend that what happened was not a sexual assault. A victim might also begin or continue a relationship with the perpetrator. Then “a crash... occurs.” The victims “usually end up going into a place of despair and depression that’s much worse than they have known before in their life.” “You can see anxiety attacks starting at that point. You can see a difficulty with eating, having difficulty sleeping, having nightmares, someone may develop a lot of phobias at that point.” During the reorganization stage, the victims “become reorganized to accommodate the experience that they have had.... [T]hey are trying to continue in their daily life but having a lot of symptomology of someone who has gone through a sexual trauma.” During the resolution stage, the victims “finally regain a sense of stability in their li[ves].... You tend to see a stability in their mood, a stability in their behavior.” However, some victims do not ever get back to the same level of functioning that they had had before the sexual assault. They might fall into a cycle of victimization, or turn to alcohol or drug use, or display other self-harming behaviors.
Rape trauma syndrome can be very similar to posttraumatic stress disorder. But because the trauma that a victim of sexual assault goes through is so intense, it is different from that experienced by the victim of a car accident or similar trauma. Statistics indicate that only one-third of sexual assaults on adults are reported, both because of the shock and denial and because of the shame, discomfort, and embarrassment that is associated with the issue.
The Defense Case
Maria Salazar testified that Jane Doe lives in the apartment complex she has managed since 1978. Salazar usually walks the property around 9:00 p.m. each night, but she does not do security checks. She has never seen defendant before. She does not remember seeing a sheriff’s car repeatedly coming to the apartment complex in 1998 or 1999, or ever seeing a sheriff’s deputy visiting Jane or knocking on her door.
Hollister Police Captain Carlos Reynoso interviewed Jane at her apartment on September 13, 2007. Captain Reynoso testified that Jane told him that she had had a relationship with defendant for about seven months starting in October 1999. She said that he would come over at night when he was off work or when he was on his way back from working in the south county, but she could not give specific times. She did say that she usually got off work at 11:00 p.m., but sometimes it was at 10:00 p.m.
Deputy Sheriff Tom Keylon testified that when he interviewed Jane Doe, she said that her relationship with defendant started in 2000. The parties stipulated that “[o]n September the 5th, 2007, Jane Doe... said to Sergeant Keylon regarding Michael Rodrigues, ... ‘You know, he parked the vehicle in my parking space.’ ”
Gregg Dietz, a private investigator, testified that he was hired by the defense to follow up on Jane Doe’s statements, the police reports, and the grand jury testimony. He went to Jane’s apartment complex and spoke with the manager. He learned where Jane’s parking stall is. He also canvassed the area for other residents who had lived there during the relevant time period.
Sheriff’s Sergeant Tony Lamonica testified that he met defendant when he worked for the Hollister Police Department. When he began working for the sheriff’s department in January 2007, he worked under defendant. Sometime in 2007, he was assigned to do an internal affairs investigation of defendant. As part of that investigation, he interviewed Lee B. one time. He asked her what she thought of the allegations against defendant. She responded that she had never seen that side of defendant. She said that defendant had never been violent with her and had never forced anything on her.
Deputy Keylon testified that he interviewed Lee B. two times as part of an internal affairs investigation of defendant. During the first interview, Lee did not make any accusations against defendant. During the second interview, which was in September 2008, Lee said that she had lied during the first interview because of her feelings for defendant. After defendant had harassed and threatened her, she wanted to clear her conscience.
Kim DeShong testified that she knows defendant because they used to ride motorcycles together. She knows Lee B. because Lee was her mother-in-law’s physical therapist, and they became friendly. Lee told DeShong about an incident involving defendant. DeShong approached Lee because “she seemed kind of down, ” and DeShong asked her what the problem was. DeShong said that she heard that Lee had been raped. Lee responded, “No, I’m just really pissed off. I shouldn’t have said it. It was a mistake.” DeShong told Lee that she hoped Lee would “fix the problem.” Lee responded that she would.
Denise Caprino testified that she has been dating defendant since July 21, 2007. One day, she and defendant were having coffee when Caprino saw Lee B. walk by them. Lee began sending Caprino text and voice messages in late August or early September 2008. Lee also began driving by when Caprino was with defendant. Caprino responded by texting Lee that she was harassing her and that she was going to call the police. Caprino did not call the police. Defendant admitted that he had had a sexual relationship with Lee B., but he denied having had a relationship with anybody else except Kristi.
Defendant did not testify.
Verdicts and Sentencing
On September 25, 2009, the jury found defendant guilty of counts 1, 2, and 9 (forcible rape, § 261, subd. (a)(2)), and count 3 (spousal rape, § 262, subd. (a)(1)). The jury further found true as to each count that the defendant committed an offense against more than one victim. The jury found defendant not guilty of counts 5 and 6 (sexual penetration by foreign object; § 289, subd. (a)(1)), count 7 (forcible rape), and count 8 (attempted forcible rape). On November 20, 2009, the court sentenced defendant to four consecutive terms of 15 years to life. (§ 667.61, subds. (b), former (e)(5) [now (e)(4)], & (i).)
See ante, footnote 2.
DISCUSSION
Discovery of Jane Doe’s Medical Records
Prior to trial, defendant moved for disclosure of the medical records of Jane Doe, the victim of counts 1 and 2. Defendant argued that Jane Doe’s statements and testimony to the grand jury “included approximate dates when she was diagnosed with cancer and the level of treatment... as benchmarks about when she met [defendant] and when she was allegedly attacked. In addition, she purported to have been impregnated from the relationship with [defendant]. That alleged pregnancy, she stated resulted in a miscarriage at the Health Foundation of San Benito County.” “These [medical] records are material to address the credibility and believability of the witness. Without such records the cross[-]examination will be unfairly limited. A jury may consider the cross-examination as a fishing expedition as opposed to confrontation of information set forth in the written records.”
After hearing argument from the parties, the trial court held an in camera hearing in order to “look through the records to see if there’s something that is relevant that the defendant might be entitled to.” After reviewing the records prior to Jane Doe’s testimony, the court denied defendant’s motion. “The defense... had earlier requested and subpoenaed health records for Jane Doe[], and it is my opinion that the affidavit is insufficient to even require [an] in camera hearing, but since the records were already here and in the file I took the step of making an in camera review.... [¶] None of the information was of the nature that the defendant’s attorney was requesting and none of the information I think has any evidentiary value, nor any discovery value....” Jane Doe later testified that she met defendant after she was diagnosed with cancer, and that she was diagnosed with cancer in November 1998.
Defendant contends that he showed good cause for discovery of Jane Doe’s medical records, and he requests that this court conduct an independent examination of the records to determine if any information in them was improperly withheld from him. The Attorney General contends that defendant’s request should be denied as he has not made a sufficient showing to merit this court’s review.
The records are before this court on a CD.
“Documents and records in the possession of nonparty witnesses... other than agents or employees of the prosecutor are obtainable by subpoena duces tecum. [Citation.]” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318.) “Sections 1326 and 1327 set forth the procedure for... the defendant to obtain discovery records possessed by third parties. A subpoena duces tecum does not require the party subpoenaed to provide the defendant with a copy of the materials sought, but does require that person or entity to produce the information in court for the defendant’s inspection. [Citation.]” (Id. at p. 1315.) “A criminal defendant has a right to discovery by subpoena duces tecum of third party records by showing ‘the requested information will facilitate the ascertainment of the facts and a fair trial.’ [Citation.]” (Id. at p. 1316.) “In such case, if the custodian of records objects to disclosure of the information sought, the party seeking the information must make a plausible justification or a good cause showing of need therefor.” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045-1046.)
“A ruling on a motion to compel discovery—like that here—is subject to review for abuse of discretion. [Citations.]” (People v. Ashmus (1991) 54 Cal.3d 932, 979.) In order to determine whether the trial court has abused its discretion, the appellate court must independently review the records in question. (See People v. Avila (2006) 38 Cal.4th 491, 606-607.)
We have reviewed the medical records of Jane Doe that had been subpoenaed by defendant. We agree with the trial court, and we conclude that these records do not contain any material information that would have assisted the defense in this case or would have had any effect on the outcome. There is nothing in the records that would have impeached Jane Doe’s testimony.
The Evidence Code Section 1108 Evidence
Prior to trial, defendant moved to exclude all Evidence Code section 1108 evidence. After holding an Evidence Code section 402 hearing, at which John Klauer and Misty R. gave testimony similar to their trial testimony, the court stated that it would “take the motion under submission and... allow re-argument after [the alleged victims] have testified.” After hearing the victims’ trial testimony, the court excluded the proffered Evidence Code section 1108 testimony of three witnesses but admitted the testimony of John Klauer and Misty R. “In regards to John Klauer, I have weighed its probative value. Its probative value I think is significant and it is not outweighed by any undue consumption of time or misleading the jury or causing any undue prejudice, and I would allow you to call John Klauer. [¶] With respect to Misty [R.], I believe her testimony is highly probative. The probative value is not outweighed by any undue consumption of time or confusing the issues or misleading the jury or creating undue prejudice, so I will allow you to present that witness also.”
Defendant now contends that the trial court erred in admitting John Klauer’s and Misty R.’s testimony. “First, Evidence Code section 1108 violates the due process clause of the United States Constitution; second, [defendant’s] Evidence Code [section] 352 objection was meritorious; and third, admission of the prior sex acts was not permissible per Evidence Code sections 1108 or 1101.”
The Attorney General contends that “the evidence was particularly probative because the testimony was that the victim in Laughlin and Misty R. were sexually assaulted by [defendant] in the same way he assaulted Jane Doe[, Kristi, and Lee B.] in the present matter and in each case the acts were without consent. The trial court properly admitted this testimony as evidence of [defendant’s] propensity to commit sexual offenses. Moreover, the trial court considered whether the concerns underlying Evidence Code section 352 warranted exclusion of the evidence, and reasonably concluded they did not.”
Evidence Code section 1108, subdivision (a), states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 1101, subdivision (a), states in pertinent part: “Except as provided in this section and in Section[]... 1108, ... evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” “Nothing in this section prohibits the admission of evidence that a person committed a crime... when relevant to prove some fact (such as... intent, ... identity, ...) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
Defendant acknowledges that our Supreme Court has rejected a due process challenge to Evidence Code section 1108. “[W]e think the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s due process challenge.” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) Defendant also acknowledges that this court is bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He states that he is presenting his due process challenge in order to “preserve his ability to take his challenge to a higher court if need be.” Therefore, we will not further address this contention.
Evidence Code section 352 provides that a court has discretion to “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.” However, “[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘... The “prejudice” referred to in Evidence Code 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.)
The trial court has broad discretion to exclude evidence of prior sex offenses under Evidence Code section 1108 where the probative value of the evidence is outweighed by its prejudicial effect. (Falsetta, supra, 21 Cal.4th at p. 919.) Accordingly, the standard of review for an order admitting evidence of prior sex offenses is abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.) “A prior court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in any arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Relying on People v. Harris (1998) 60 Cal.App.4th 727 (Harris), defendant points to three factors which he contends weighed in favor of exclusion of John Klauer’s and Misty R.’s testimony. In Harris, the appellate court enumerated five factors that should be considered in reviewing proffered Evidence Code section 1108 testimony under an Evidence Code section 352 analysis. These factors are the inflammatory nature of the evidence, the probability of confusion, the remoteness or staleness of the prior conduct, the consumption of time, and the probative value of the evidence. (Harris, supra, at pp. 737-739.) Defendant argues that “the inflammatory nature of the prior conduct, its dissimilarities, its remoteness, plus the fact that there was no conviction as to said conduct” leads to “the conclusion that the trial court abused its discretion in determining that its probative value outweighed its prejudicial effect.”
The Attorney General contends that the admission of John Klauer’s and Misty R.’s testimony was proper under Evidence Code section 1108 and that it was not more prejudicial than probative.
“In People v. Ewoldt (1994) 7 Cal.4th 380 [(Ewoldt)], the California Supreme Court (at p. 405) deemed it important in evaluating prior uncharged acts pursuant to section 352, whether ‘[t]he testimony describing defendant’s uncharged acts... was no stronger and no more inflammatory than the testimony concerning the charged offense.’ ” (Harris, supra, 60 Cal.App.4th at pp. 737-738.) We find that the testimony describing defendant’s uncharged offenses was no stronger and no more inflammatory than the testimony by the victims of defendant’s charged offenses. The uncharged offenses constituted forcible rape or attempted rape as did the charged offenses. Misty R. was a minor at the time of the offenses against her, but this alone does not make it more inflammatory than the forcible rapes of Jane Doe, Kristi, and Lee B.
There may be a probability of confusion when the uncharged acts did not result in criminal convictions, because there is an increase in the danger that the jury might be inclined to punish defendant for the uncharged offenses. (Harris, supra, 60 Cal.App.4th at pp.727-728; Ewoldt, supra, 7 Cal.4th at p. 405.) In this case, John Klauer testified that the victim did not report the Laughlin incident to the police, and Misty R. testified that she did not report the incidents involving her to the police until a few years after the incidents. The court instructed the jury both before John Klauer’s and Misty R.’s testimony, and again after the close of all the evidence, that the incidents John Klauer and Misty R. testified to were not part of any count filed against defendant, that it could consider this evidence only if the People had proved beyond a reasonable doubt that defendant had in fact committed those uncharged offenses, and that, even if it found beyond a reasonable doubt that defendant had committed an uncharged offense, that factor was not sufficient by itself to prove that defendant was guilty of committing the charged offenses. (See CALCRIM No. 1191.) Thus, we find that there was little probability of confusing the jury regarding the evidence of the uncharged offenses.
The court instructed the jury: “The People presented evidence that the defendant committed the forcible rape, an attempted forcible rape, and an unlawful sexual intercourse with a minor who was more than three years younger than the defendant that are not part of any count filed against the defendant. [¶] The elements of the uncharged offenses of forcible rape and attempted forcible rape are defined earlier in these instructions. The elements of unlawful sexual intercourse with a minor who is more than three years younger than the defendant are defined in Section 1071 below. [¶] You may consider the evidence of an uncharged offense only if the People have proven beyond a reasonable doubt that the defendant in fact committed the uncharged crime. If the People have not met this burden as to any of the uncharged offenses, you must disregard the evidence of that unproven charge entirely. [¶] If you decide beyond a reasonable doubt that the defendant committed an uncharged offense, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit one or more of the sexual offenses as charged here. [¶] If you conclude that the defendant committed one or more of the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence in this case. Proof of an uncharged sexual offense is not sufficient by itself to prove that the defendant is guilty of any of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt.”
“ ‘Remoteness’ or ‘staleness’ of prior conduct is an appropriate factor to consider in a section 352 analysis. [Citation.]” (Harris, supra, 60 Cal.App.4th at p. 739.) “Remoteness of prior offenses relates to ‘the question of predisposition to commit the charged sexual offense.’ [Citation.] In theory, a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offense. However, ... significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch).) In Branch, the appellate court found that a 30-year gap between the prior offenses and the charged offenses was balanced out by the similarities between them. (Id. at pp. 284-285.) In this case, although Misty R.’s testimony related to incidents in 1993, which occurred six years before the incident involving Jane Doe, the similarities between those offenses and the charged offenses against Jane Doe, Kristi, Frances V., and Lee B. “balance out” any remoteness. (See also People v. Soto (1998) 64 Cal.App.4th 966, 990-992 [passage of over 20 years did not render evidence of the prior similar incidents prejudicial and inadmissible].)
“ ‘On the issue of probative value, materiality and necessity are important. The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative.’ [Citation.]” (Harris, supra, 60 Cal.App.4th at pp. 739-740.) While Evidence Code section 1108 requires a significant similarity between the charged offenses and the uncharged offense to establish relevancy, it does not require that the uncharged offenses mirror the charged offenses. (See e.g., People v. Soto, supra, 64 Cal.App.4th at p. 991.) The degree of similarity is not determinative of the issue, but it does “tend to bolster the probative force of the evidence.” (Harris, supra, 60 Cal.App.4th at p. 740.) Here, the Laughlin incident was different from the charged offenses because it involved a stranger and the charged offenses involved known victims. However, both the charged offenses and the uncharged offenses involved forcible sexual assaults. The evidence of the uncharged offenses did not “lack... any significant probative value.” (Harris, supra, 60 Cal.App.4th at p. 741.)
We conclude that the factors discussed in Harris favor admitting the evidence of the uncharged offenses. The evidence was no more inflammatory than the evidence relating to the charged offenses, there was little probability of confusion, the uncharged offenses were not remote or stale, and the evidence did not lack any significant probative value. Accordingly, we find that the trial court did not abuse its discretion in admitting John Klauer’s and Misty R.’s testimony under Evidence Code sections 1108 and 352. (Harris, supra, 60 Cal.App.4th at pp. 737-739; Branch, supra, 91 Cal.App.4th at pp. 283-287.) As we find that the testimony was properly admitted under Evidence Code sections 1108 and 352, we need not address defendant’s contention that it was inadmissible under Evidence Code section 1101.
The Rape Trauma Syndrome Evidence
On the day that Jenny Adler testified, defendant filed a memorandum of points and authorities on rape trauma syndrome. He contended only that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped. Although defendant’s counsel voir dired Adler on her training and experience, he did not object to Adler testifying as an expert regarding rape trauma syndrome. Nor did he object to the breadth of her testimony. Rather, he cross-examined her regarding rape trauma syndrome in general as well as regarding her specific experiences with rape victims.
At the close of all the testimony, the court instructed the jury pursuant to CALCRIM No. 1192 on the limited use of Adler’s testimony. The prosecutor then argued to the jury, without objection, that Adler testified that two-thirds of sexual assault are not reported for a number of reasons, including that “it’s much easier not to be a rape victim. It’s much easier not to have to come and sit on that stand years after you have tried your best to put it behind you and have to look at the man who did that to you. That’s what Jane Doe... did.” The prosecutor further argued without objection, “Remember Ms. Adler talked about that. One of the things that rape victims may do is consent to a sexual relationship with their perpetrator later, or even search out their perpetrator later because they can play those mind games on themselves, and they can say to themselves, well, it must not have been a sexual assault if now we’re in a relationship. I don’t have to be a sexual assault victim or a rape victim. Do you remember her saying that? I asked her those questions and she said that. She helped us understand that.”
The court instructed the jury: “You have heard testimony from Jen August Adler regarding rape trauma syndrome. Her testimony about rape trauma syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not any of the victims or other witnesses’ conduct was not inconsistent with the conduct of someone who had been raped in evaluating the believability of that [sic] witnesses.”
Defendant now contends that “the trial court’s allowance of a general unlimited discussion of rape trauma syndrome constitutes reversible error. Further, his trial counsel rendered ineffective assistance of counsel by failing to request that said testimony be limited in scope to the myths/misconceptions the prosecutor sought to dispel.” “Reversal is required as it is more reasonably probable than not that but for counsel’s failure to object to inadmissible expert opinion, the result would have been different.”
The Attorney General contends that defendant has forfeited his claims that Adler’s testimony was not limited to that necessary to dispel the myths identified by the prosecutor in his closing argument because he failed to object to the testimony when it was presented. The Attorney General further contends that Adler’s testimony was proper and relevant, and that, even if it was error for the court to admit it, it is not reasonably probable a result more favorable to defendant would have been reached absent the error.
It is well settled that to establish a claim of ineffective assistance of counsel, defendant must first demonstrate that trial counsel’s representation fell below the standard of reasonableness under prevailing professional norms. He must also show that trial counsel’s deficient representation subjected him to prejudice, i.e., that there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
In People v. Bledsoe (1984) 36 Cal.3d 236, 246-248 (Bledsoe), the California Supreme Court held that expert testimony regarding rape trauma syndrome is “inadmissible when offered to prove that the complaining witness has in fact been raped.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin), citing Bledsoe, at pp. 248-251.) But the court “recognized, as other courts had held [citation], that such testimony is admissible to rehabilitate the complaining witness when the defendant impeaches her credibility by suggesting that her conduct after the incident—e.g., a delay in reporting—is inconsistent with her testimony that she was raped.” (McAlpin, at p. 1300; see also People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099; People v. Brown (2004) 33 Cal.4th 892, 905.) The Bledsoe court “reasoned that ‘in such a context expert testimony on rape trauma syndrome would play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.’ ” (McAlpin, at p. 1300, quoting Bledsoe, at pp. 247-248.)
In this case, none of the victims immediately reported defendant’s rapes to authorities, although both Kristi and Lee B. reported the rapes to their friends. Jane Doe admitted defendant into her home after the first rape, and defendant used the opportunity to rape her again. Lee began a consensual sexual relationship with defendant after he raped her. In light of this evidence, the trial court properly permitted Adler to testify regarding rape trauma syndrome to dispel any misconception that a woman normally would immediately report to authorities that a rape had occurred and/or would not agree to see her rapist again and/or would not thereafter enter into a consensual sexual relationship with her rapist. In addition, the court instructed the jury as to the limited use of Adler’s testimony. As the court properly admitted Adler’s testimony, and gave a proper limiting instruction as to her testimony, defendant has not shown that he was prejudiced by his counsel’s failure to object to her testimony.
Evidence of Lee B.’s Offer to Take a Polygraph Test
Lee B. testified that she told defendant that she had lied to the investigating officers the first time she spoke to them. She said that the officers had asked her if she would take a lie detector test, and she told them yes. Defendant responded, “Don’t worry. You won’t have to.” Defendant’s counsel did not object to this testimony. On appeal, defendant contends that the admission of the testimony was error and that his counsel rendered ineffective assistance by failing to object to the testimony and to request that the testimony be stricken.
The Attorney General contends that defendant forfeited his claim that admission of the testimony was error due to his failure to object to it. The Attorney General further contends that, because the testimony was actually favorable to defendant, he cannot demonstrate that his counsel’s failure to object to the testimony prejudiced him.
Evidence Code section 351.1, subdivision (a) states in relevant part: “Notwithstanding any other provision of law, ... any reference to an offer to take, ... a polygraph examination, shall not be admitted into evidence in any criminal proceeding, ... unless all parties stipulate to the admission of such results.” “However, the trial court had no sua sponte duty to exclude evidence, remedy misconduct, or instruct the jury on specific evidentiary limitations. [Citations.] Thus, counsel’s failure to act waived direct claims of error.” (People v. Montiel (1993) 5 Cal.4th 877, 918.)
In addition, we find no deficient performance by trial counsel warranting reversal. The decision whether to object to inadmissible evidence is a tactical one and is accorded substantial deference on appeal. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) “ ‘[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.’ ” (Id. at p. 1197.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
After carefully reviewing the record, we find that it suggests several possible tactical reasons why counsel did not object to Lee B.’s testimony. Lee’s credibility was a crucial issue at the trial. Lee testified that she first told defendant that she had lied to the investigators and then she told defendant that she agreed to take a lie detector test. Defendant’s counsel could have reasonably believed that Lee’s testimony regarding offering to take a lie detector test was brief and not damaging to the defense, but that an objection to the testimony might highlight it and lead the jury to speculate about the possible results of such a test. In addition, defendant’s counsel cross-examined Lee extensively on the inconsistencies in her statements to the investigating officers, and counsel could have reasonably believed that impeaching Lee in this way would be more effective than objecting to her statement about offering to take a lie detector test. Accordingly, we cannot find that counsel’s failure to object in this case prejudiced defendant. (Compare People v. Basuta (2001) 94 Cal.App.4th 370, 388 [improper revelation that crucial prosecution witness had taken a polygraph test, in combination with error in excluding some defense evidence, was prejudicial].)
Even if we were to find that counsel’s failure to object to Lee B.’s testimony regarding a lie detector test constituted deficient performance, we would find that defendant is unable to show that he was prejudiced. The testimony was brief and was not referred to again by either party and it did not suggest that she had actually taken a polygraph examination. It is not reasonably probable defendant would have obtained a more favorable result had counsel objected to the testimony.
Evidence of Gregg Dietz’s Investigation
Gregg Dietz, a private investigator, testified that he canvassed the area of Jane Doe’s apartment complex for other residents who had lived there during the relevant time period. The trial court sustained the prosecutor’s relevance objection to defense counsel’s questions of Dietz: “Were you able to find anyone that ever saw Mr. Rodrigues ever in that area?” “[D]id you try and find out if anybody ever saw a sheriff’s deputy vehicle in that area?” The court concluded that Deitz’s proffered testimony that “[i]t was an investigation which produced no witnesses, ” was irrelevant because Dietz spoke to only five individuals, only one of those individuals (Mr. Duarte) lived in the apartment complex during the relevant time period, and defense counsel was not going to call Mr. Duarte to testify because of his ill health.
Defendant now contends that the trial court’s refusal to admit evidence of the results of Dietz’s investigation, “negative evidence, ” was “error that violated his federal constitutional right to present a defense.” He further contends that his counsel rendered ineffective assistance because counsel should have called Mr. Duarte to testify at trial or should have otherwise preserved his testimony.
The Attorney General contends that the trial court did not abuse its discretion by excluding the proffered testimony because it had “almost no probative value. At best, it would only have... shown that in addition to Ms. Salazar, Mr. Duarte had not seen a patrol car parked there.”
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “ ‘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.” (Evid. Code, § 210.)
“Negative evidence” is evidence that a witness in a position to hear or see something did not hear or see that thing. (Riddick v. Jim Hay Company (1975) 45 Cal.App.3d 464, 472 (Riddick).) The general rule is that negative evidence lacking in probative value is properly excluded as too speculative in nature. (People v. Mehaffey (1948) 32 Cal.2d 535, 556.) The fact that a witness did not observe something someplace does not necessarily have a tendency in reason to prove that it was not there or did not happen. (Ibid.)
In this case, the fact that Dietz did not find a witness many years later who had seen defendant’s patrol car outside Jane Doe’s apartment during the relevant time period does not have a tendency in reason to either prove that the patrol car was never there or to impeach Jane Doe’s testimony. First, Dietz spoke to only five people, and only one of those persons (Mr. Duarte) lived at the apartment complex during the relevant time period. Second, there was no showing that Mr. Duarte was in a position to have seen the patrol car at the times that Jane Doe testified that the car would have been at the apartment complex. (Compare Riddick, supra, 45 Cal.App.3d at p. 472 [testimony in an accident case by witnesses in a position to hear and see, that they did not hear any warning whistle or see any signal, is admissible evidence].) Accordingly, the trial court did not err or abuse its discretion by sustaining the prosecutor’s relevancy objection to the proffered testimony in this case. Further, defendant cannot show on this record that he was prejudiced by counsel’s failure to call Mr. Duarte to testify on defendant’s behalf.
Impeachment of Jane Doe
Defense counsel wanted to recall Jane Doe in order to question her about an out-of-court statement she had made that she had become pregnant, because “we believe that statement has all the earmarks of not being credible.” The court asked whether defendant had any evidence that the statement was “not accurate.” Defense counsel replied that neither Deputy Keylon nor anybody else had investigated the statement “to find out if it’s true, ” and that fact was “evidence that [it] was not a true statement.” The court noted that Jane Doe “testified as to two instances of rape, and she testified to many other instances of consensual sex, ” and that “sometimes females that engage in sex that tell a lie get pregnant.” But, because defendant had “no evidence, no indices of any kind that it’s not true, ” “I’m excluding it under [Evidence Code section] 352.”
Defendant now contends that his counsel rendered ineffective assistance “as to this line of impeachment. Rather than try to prove something he could not prove, he could and should have offered the evidence as to the pregnancy and miscarriage for bias and motive, a perfectly permissible avenue of admissibility. Further, he should have questioned the witness about it on cross-examination before she was excused.” Jane Doe’s “pregnancy by [defendant] and her subsequently suffering a miscarriage would clearly give her a reason to have animosity toward him and thus a reason to lie, particularly in light of the fact that she wanted more out of the relationship that he did. Such evidence was thus relevant and admissible on that basis.” “Trial counsel’s failure to take the appropriate steps that would have allowed him to fully impeach [Jane Doe] with what information he had available and to offer such impeachment on a basis that had viable admissibility compels reversal pursuant to the Strickland standard.”
The Attorney General contends that “[e]ven if counsel had acted in exactly the same manner as [defendant] now asserts counsel should have acted, the jury’s verdict would have been the same.” “Impeachment with evidence of a reported miscarriage would not have been an effective means of discrediting the statements of Jane Doe[] made regarding [defendant] forcibly raping her in her home. In fact, it may have strengthened the People’s case and weakened the defense case which was based on an argument that Jane Doe[] was ‘delusional.’ ” “In sum, [defendant] is unable to prove either incompetence or demonstrable prejudice from that incompetence.”
Unless prohibited by statute, the jury, in determining the credibility of a witness, may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of [the witness’s] testimony at the hearing, ” including the extent of the witness’s capacity to perceive, recollect, or communicate any matter about which the witness testifies, and the existence or nonexistence of a bias, interest, or other motive. (Evid. Code, § 780.) Even if evidence is relevant, the court has the discretion to exclude it 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.” (Evid. Code, § 352.)
In this case, as the trial court found, Jane Doe testified that she and defendant had consensual sex on a number of occasions, and that defendant had raped her on two occasions after she told him that she wanted to end their relationship. The probative value of testimony regarding Jane Doe’s possible pregnancy and miscarriage would have been slight given her admitted consensual sexual relationship with defendant. Defendant does not contend that Jane Doe claimed that she became pregnant as a result of defendant’s unlawful, as opposed to lawful, conduct. And any bias or hostility she harbored against defendant could have been due to the conduct that she testified to even if she did not become pregnant. As the probative value of any testimony regarding the possible pregnancy and miscarriage would have been slight, we cannot say that the trial court erred or abused its discretion in excluding it under Evidence Code section 352. In addition, we cannot say that counsel rendered ineffective assistance by failing to offer the evidence “for bias and motive, ” as defendant now claims.
Even if we were to find that counsel’s impeachment of Jane Doe was deficient, we would find that defendant is unable to show that he was prejudiced thereby. The court had denied counsel’s request for release of Jane Doe’s medical records and counsel had no evidence that Jane Doe’s alleged claim of a pregnancy and miscarriage were not true. Accordingly, we find that it is not reasonably probable that a more favorable outcome would have occurred had counsel offered the evidence “for bias and motive, ” as defendant now claims.
Kristi’s Declaration
Kristi testified that she talked to defense investigators in September 2008. She answered their questions and they typed up a statement for her to sign. She read it and signed it. Defendant sought admission into evidence of the contents of Kristi’s signed statement, arguing that it contained a statement that she “never witnessed any behavior that made her feel fearful of him, which is a prior inconsistent statement we believe in some capacity with her testimony.” It also contained a statement “that she felt that she was manipulated by the [s]heriff’s [d]epartment and considered vulnerable, she was going through a separation and difficult divorce proceedings.” Counsel asked that “the entire declaration be submitted, your Honor, without redaction.”
The court ruled as follows. “In reviewing that document, the unmarked portion on the first page is the only relevant part. It’s one sentence which she testified to on examination and/or cross-examination that she did say she signed the document that said she had never been afraid of [defendant]. [¶] And on page two, the only possible relevant stuff -- calling it as nice a word as I can -- is her -- is the one sentence, and I will read it under quotes, because it doesn’t necessarily make a complete sentence, quote, ‘As I look back now with a clear mind, I can honestly say that the night in question when the sheriff deputies alleged spousal rape was actually consensual.’ I’m not sure that’s a complete sentence. I think there are words missing that make it context [sic]. [¶] And on the third page there is nothing relevant to this case that’s admissible other than the declaration under penalty of perjury, and not all of the prior statement is admissible just to get in some inconsistent parts. And the remainder of this declaration I find is filled with inadmissible, irrelevant, unproven allegations against numerous other persons and groups of persons and its admission would greatly confuse the jury and mislead the jury as to the issues in this case and admit inadmissible conjecture, speculation, and argument inputted by whoever was the drafter of the document. So [the document] is not received.”
Defendant brought up the declaration again during the parties’ discussion with the court about the jury instructions. Defense counsel argued: “[T]o disallow that declaration from being shown to the jury with respect to contradictory evidence that she signed with specific language addressing her reasoning behind the first accusation is fundamentally unfair to the defense, your Honor. And it’s not hearsay because it’s not offered for the truth of the matter. [¶] Those statements whether or not they are true is not the reason. It shows her state of mind. Whether or not the sheriffs actually pressured her, that’s not -- whether they actually did it is not the reason.” The prosecutor argued that the evidence showed that Kristi talked to the defense investigators after she lost custody of her children and she told defendant that she would do anything to get them back, and that shortly after she signed the declaration she got her children back. “The content of the declaration is [¶]... [¶] -- you know, irrelevant.” The court declined to change its ruling on the admission of the declaration.
Defendant now contends that “it was reversible error for the trial court to exclude the declaration in its entirety.” “[P]ortions of the declaration the contents of which were not otherwise admitted during [Kristi’s] testimony were admissible as relevant to [her] credibility.... The trial court agreed that these portions were relevant. And clearly they were and should have been admitted.” Defendant separately contends that trial counsel rendered ineffective assistance by failing to get the declaration admitted. “First, in the face of the trial court’s clearly stated view that only a portion of the declaration was arguably admissible, counsel failed to limit his request for the admission of the part the court deemed relevant after being rebuffed on the admission of it in its entirety, thereby losing any benefit at all to be gained by said declaration. Second, counsel failed to lay the proper foundation for admission of [Kristi’s two relevant statements].” “Counsel’s errors compel reversal because ‘it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel’s failings.’ ”
The Attorney General contends that “to the extent that [defendant’s] claim is that... two statements were requested and disallowed the claim is forfeited as [he] never requested that those two particular statements be provided the jury.” The Attorney General further contends that “[t]estimony surrounding the declaration was already before the jury, ” and that defendant “fails to explain how the two statements in the declaration... were necessary for the understanding of, or to give context to, statements already introduced. [Defendant’s] claim should be rejected.”
Defendant requested that the court admit Kristi’s “entire declaration... without redaction.” The court denied the request, finding that only two sentences in the declaration were possibly relevant. We review the trial court’s decision to admit or exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292; People v. Parrish (2007) 152 Cal.App.4th 263, 274.) As defendant now concedes that only two portions of Kristi’s declaration were possibly relevant and admissible, he has waived any claim that the court erred in failing to admit the entire declaration.
In addition, defendant has failed to show that he was prejudiced by counsel’s failure to request that only the two possibly relevant portions of the declaration be shown to the jury. Kristi testified regarding the context in which the declaration was prepared and signed. She was also examined and cross-examined regarding the contents of the declaration, and she testified that the declaration was “true and honest.” The declaration itself was hearsay, i.e., “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Defense counsel argued that the declaration was not hearsay, because it was not offered for its truth but to show Kristi’s state of mind. (Evid. Code, § 1250, subd. (a).) However, the statements in Kristi’s declaration that sheriff’s deputies “swayed” her into obtaining a restraining order and that her allegations against defendant were due to the deputies’ “aggressive pursuit, ” which are the two portions of the declaration that defendant argues here should have been admitted, are allegations as to the deputies’ conduct that were offered for the truth of the matter asserted and not to prove Kristi’s state of mind. In addition, the trial court could properly find that the allegations could confuse or mislead the jury regarding the proper issues before it. As Kristi testified generally as to the existence and relevant contents of her declaration, and defendant has not shown that counsel failed to get any specific portion of the declaration admitted into evidence that could have been properly admitted, he has not shown that he was prejudiced by counsel’s actions.
“Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts of conduct of the declarant.” (Evid. Code, § 1250, subd. (a).)
The Prosecutor’s Arguments to the Jury
Defendant contends that several of the prosecutor’s statements during his arguments to the jury constitute misconduct.
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” [Citations.] ‘Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29.)
“When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.] A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. ‘ “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets....’ ” [Citations.]’ [Citation.] ‘A defendant’s conviction will not be reversed for prosecutorial misconduct... unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 244 (Harrison).)
The court instructed the jury prior to the parties’ closing arguments. As part of those instructions, the court gave CALCRIM No. 220 on the presumption of innocence. It also gave CALCRIM No. 222 which states in part: “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses and exhibits admitted into evidence and all stipulations agreed to by the lawyers. Nothing the attorneys say is evidence. In their opening statements and closing remarks the attorneys discussed the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they help you to understand the witnesses’ answers. And do not assume that something is true just because one of the attorneys asked a question that suggested it was true.”
Near the start of his argument to the jury, the prosecutor asked: “What did we learn through the testimony? What can we conclude? Without a doubt we can conclude this: The defendant is a serial rapist. He’s not just a rapist. A rapist rapes one woman one time. He has raped five women, he has committed seven rapes. In addition, he’s got two attempted rapes and two forcible penetrations with a foreign object. Serial rapist. No doubt. [¶] What I’m going to do now is I’m going to take you through the law and together we’re going to learn how to reach that conclusion with respect to each individual count.” Defendant did not object to this argument, so he has forfeited any claim that it constitutes misconduct. Moreover, given the evidence of defendant’s conduct involving Misty R., Jane Doe, Kristi, Lee B., and in Laughlin, the prosecutor’s characterization of defendant as a serial rapist fell within the permissible bounds of argument. (See Harrison, supra, 35 Cal.4th at pp. 244-245.)
Near the end of his opening argument, the prosecutor stated: “The other thing that I want to talk to you about -- I’m almost done, Your Honor -- is that we need to understand, too, which I’m sure many of you do, that our search for the truth and our ability to do justice depends on the mechanisms of the court, the judiciary. What that means is that every little time-consuming, prejudicial, confusing, misleading piece of evidence doesn’t get to come before you, so I apologize for any delays that were heard because we had to discuss such matters. I tried to, and I believe –[.]” Defendant objected to this argument: “There is no evidence of misleading or the words he is saying, Your Honor.” “I’d like an admonition that that was an improper statement to the jury, Your Honor. That was totally uncalled for. I can go on the other side and say, well, he’s keeping stuff out because he’s hiding it from the jury.” The court “noted” the objection and stated that it would “relisten to it during the lunch break.” The prosecutor continued: “As I was saying, ladies and gentlemen, I tried, and I think we did a pretty good job of presenting evidence to you properly, without much interruption so that you could get to the truth and you can make a decision.” Soon thereafter, the trial broke for the lunch recess. Before calling the jury back after the recess, the court stated: “The court has read the portion that was objected to when you interrupted him before he made reference to anything that was not evidence in court, but his comments, such as they are, are not prosecutorial misconduct.”
Defendant contends that the prosecutor’s argument here “improperly disparaged the defense, defense counsel and violated [defendant’s] federal constitutional rights to counsel and to present a defense.” “[C]omments to the effect that [defendant’s] defense consisted of time consuming, prejudicial, confusing and misleading evidence struck at the heart of [these] two of [his] most fundamental rights.”
The question before us is whether there is a reasonable likelihood that the jury construed or applied the complained-of remarks in an objectionable fashion. (Harrison, supra, 35 Cal.4th at p. 244.) We do not find that there is a reasonable likelihood that the jury construed the prosecutor’s argument as implying that all the delays during trial were due to defendant’s attempts to introduce confusing and misleading evidence. Rather, we find, as did the trial court, that the prosecutor’s remarks were simply an apology for all the interruptions that had occurred during the trial because the court had to ensure that both parties were presenting proper evidence to the jury. Moreover, the court instructed the jury on the presumption of innocence, that the prosecutor’s closing remarks are not evidence, and that it must decide the facts in the case based only on the evidence that was presented. We must presume the jury followed the court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)
During his closing argument, the prosecutor stated: “Then he [defense counsel] said we wanted you to believe that [defendant] somehow snapped his fingers or made a phone call to the judge and got her her kids back. We never said that. I never said that. They never said that. What you heard was that he created the situation that got the kids taken away. And in violation of a restraining order he’s pounding on doors and windows, calling, calling, calling, calling, and she won’t answer.” Defendant objected that “[t]here is no evidence of that, your Honor.” The court overruled the objection stating, “He is able to argue the evidence the best he remembers it.” The prosecutor continued: “Look up Kristi’s testimony. It’s there. [¶] In any event, we clarified that with her later, ‘Why was the case dismissed?’ Because the officers took the word of her estranged husband and arrested her. The judge threw out the case because the judge said, ‘How can you rely on the word of that guy?’ ” Defendant again objected. The court “noted” the objection and allowed the prosecutor to “complete” his argument. The prosecutor continued, “ ‘How can you take the word of that guy?’ And he threw out the case. But he still got what he wanted out of it. The judge already had made a custody order.”
Defendant contends that “the prosecutor’s statements unsupported by the evidence as to why [Kristi’s] DUI case was dismissed... constituted a clear violation of [defendant’s] federal constitutional rights of confrontation and prosecutorial misconduct as well. The message implicit in such comments was not only to create animosity toward [defendant], leading to a verdict not based on the evidence, but to destroy his credibility based on no evidence.”
Kristi testified that her driving under the influence case was dismissed after she filed a motion arguing that it was the result of an unlawful stop because the arresting officers relied on the word of defendant rather than contacting her. A prosecutor’s argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom. (Harrison, supra, 35 Cal.4th at p. 244.) We cannot say that it was unreasonable for the prosecutor to argue to the jury that they should infer from the evidence presented that Kristi’s driving under the influence case was dismissed because the court concluded that the arresting officer should not have relied on defendant’s statements.
Later in the prosecutor’s closing argument he stated: “He [defense counsel] said I made an error on my PowerPoint because I put up there he raped seven times. It’s not an error. Let’s go through it. Let’s see. Can we go chronologically or -- okay. Let’s do it this way. [¶] Charges: Jane Doe[], once; Jane Doe[], the second time; Kristi, that’s three; [the alleged victim of count 7], once;... Lee [B.], five; and then Misty [R.], 6 and 7, statutory and at gunpoint. That’s at least seven times.... [¶] And who knows? Like [defense counsel] said, the gap in time from ’99 to when he raped Kristi, who knows how many women he raped in between there. We don’t know. Only two-thirds of victims ever come forward -- excuse me -- two thirds of victims don’t come forward, I’m sorry.” Defendant did not object to this part of the prosecutor’s argument, so he has forfeited any claim on appeal that it constitutes misconduct.
Near the end of the prosecutor’s closing argument he stated: “Ladies and gentlemen, I know you’re going to do what you’re supposed to do and you’re going to focus on the facts of this case, of the evidence and the testimony before you. And let’s be clear. That’s exactly what I have asked you to do. I started off yesterday saying, and I say again, that man is a serial rapist.” Defendant did not impose an objection and, as we did regarding the first time the prosecutor referred to defendant as a serial rapist, we find that the prosecutor’s argument fell within the permissible bounds of argument. (Harrison, supra, 35 Cal.4th at p. 244.)
Cumulative error
Defendant contends that “the issues raised herein warrant reversal for their cumulative effect if they do not require reversal individually.” “The errors here are of constitutional magnitude. Respondent cannot demonstrate beyond a reasonable doubt that the errors did not contribute to the jury’s verdict.”
The California Supreme Court has recognized that the cumulative impact of errors, though by themselves may not be sufficient to warrant reversal of the judgment, may when taken together warrant reversal. (See e.g., People v. Hill (1998) 17 Cal.4th 800, 845.) As we have found no abuse of discretion or error on the part of the court, no prosecutorial error, and no ineffective assistance of counsel, as alleged by defendant, we further find no cumulative error requiring reversal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.