Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCN167044, Runston G. Maino, Judge.
McDONALD, J.
Robert Michael Rubino appeals a judgment following his jury conviction of multiple counts of committing lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)) and displaying harmful matter to a minor with the intent to seduce the minor (Pen. Code, § 288.2, subd. (a)). On appeal, Rubino contends the trial court erred by: (1) admitting Evidence Code section 1108 evidence of his prior sexual molestations; and (2) excluding evidence of a finding by an administrative law judge (ALJ) that those molestations did not occur.
All further statutory references are to the Evidence Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged Rubino with six counts of committing lewd acts on Timothy S., a child under 14 years of age (Pen. Code, § 288, subd. (a)), one count of displaying harmful matter to Timothy S. with the intent to seduce him (Pen. Code, § 288.2, subd. (a)), 10 counts of committing lewd acts on I.R., a child under 14 years of age (Pen. Code, § 288, subd. (a)), and one count of displaying harmful matter to I.R. with the intent to seduce him (Pen. Code, § 288.2, subd. (a)). The information also alleged that Rubino, in committing the lewd acts, had substantial sexual conduct with his victims (Pen. Code, § 1203.066, subd. (a)(8)) and committed the offenses against more than one victim (Pen. Code, § 667.61, subds. (b), (c), & (e)).
During trial, the prosecutor dismissed one of the 10 lewd act counts involving I.R.
At trial, the prosecution presented the testimony of Timothy S., I.R., and other percipient witnesses, as well as DNA and other evidence, regarding Rubino's commission of the charged offenses. After the trial court overruled Rubino's objection, the prosecution also presented the testimony of Raymond S. regarding prior sexual molestations committed by Rubino in 1993 against him and another minor. Rubino and other witnesses testified in his defense.
The jury found Rubino guilty on all counts and found true the related allegations. The trial court sentenced Rubino to a total determinate term of 28 years in prison, plus a total consecutive indeterminate term of 45 years to life, for an aggregate term of 73 years to life.
Rubino timely filed a notice of appeal.
DISCUSSION
I
Admission of Section 1108 Evidence of Rubino's Prior Sexual Molestations
Rubino contends the trial court erred by admitting section 1108 evidence of his prior sexual molestations because the ALJ's finding at a prior administrative hearing that those molestations did not occur precluded admission of that evidence at his criminal trial under the doctrine of collateral estoppel.
A
"In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. [Citations.] 'Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.' [Citation.]" (Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849.) "The party asserting collateral estoppel bears the burden of establishing these requirements." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
"Even assuming all the threshold requirements are satisfied, however, our analysis is not at an end. We have repeatedly looked to the public policies underlying the doctrine before concluding that collateral estoppel should be applied in a particular setting. [Citation.] As the United States Supreme Court has stated, 'the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a nineteenth century pleading book, but with realism and rationality.' [Citations.] Accordingly, the public policies underlying collateral estoppel--preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation--strongly influence whether its application in a particular circumstance would be fair to the parties and constitutes sound public policy. [Citation.]" (People v. Lucido, supra, 51 Cal.3d at pp. 342-343, fn. omitted.) "It must be remembered that '[c]ollateral estoppel is an equitable concept based on fundamental principles of fairness.' [Citation.]" (White Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754, 763.) In general, "[c]ollateral estoppel may be applied to decisions made by administrative agencies '[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate . . . .' [Citation.]" (People v. Sims (1982) 32 Cal.3d 468, 479, fn. omitted, superseded by statute on another ground as stated in Gikas v. Zolin, supra, 6 Cal.4th at pp. 851-852.)
"For an administrative decision to have collateral estoppel effect, it and its prior proceedings must possess a judicial character. [Citation.] Indicia of proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party's ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision. [Citation.]" (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.)
On appeal, most courts apply a de novo, or independent, standard of review in determining whether the trial court properly applied, or refused to apply, the doctrine of collateral estoppel. (Roos v. Red (2005) 130 Cal.App.4th 870, 878.) Where "the facts determining whether the trial court properly applied [or refused to apply] collateral estoppel are uncontested, . . . application of the doctrine is a question of law to which we apply an independent standard of review." (Ibid.)
B
Before trial, the prosecution filed an in limine motion for admission of section 1108 evidence that Rubino sexually molested minors Raymond S. and Jason B. in 1993 while living in Florida. Rubino moved to exclude that evidence on the ground that the People were collaterally estopped from presenting that evidence. Rubino argued that the issue of whether he sexually molested Raymond S. and Jason B. in 1993 was previously decided by the ALJ in an administrative hearing on his appeal from the denial by the State of California Department of Social Services (DSS) of his 1998 application for a foster home license.
Section 1108, subdivision (a), provides: "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." Section 1108 "therefore permits the trier of fact to consider defendant's prior sex offenses as propensity evidence. [Citation.]" (People v. Pierce (2002) 104 Cal.App.4th 893, 897.)
In February 1999, DSS denied Rubino's application for a foster home license. On September 25, 2000, following an administrative hearing during which witnesses testified regarding the alleged 1993 incidents and other matters, Vallera Johnson, the ALJ, issued a proposed decision (Decision) summarizing that testimony. Although Raymond S. testified Rubino engaged in sexual conduct with him and Jason B., Rubino and Jason B. denied sexual conduct. The ALJ found the testimonies of Rubino and Jason B. more credible than the testimony of Raymond S. Accordingly, in the Decision, the ALJ found "[Rubino] did not engage in sexual conduct with one or more minors including but not limited to [Jason B.] and/or [Raymond S.], then minors, in 1993." Nevertheless, because Rubino did not carry his burden to prove by a preponderance of the evidence that in 1997 he did not arrange to have a minor transported from another state into California for sexual purposes, the ALJ proposed in the Decision that DSS uphold its denial of Rubino's application for a license to operate a foster family home. On October 25, DSS adopted the Decision as its decision, effective November 4.
In moving to exclude from his criminal trial section 1108 evidence of his prior sexual molestations of Raymond S. and Jason B. in 1993, Rubino argued the doctrine of collateral estoppel should apply based on the ALJ's specific finding that he did not engage in sexual conduct with either Raymond S. or Jason B. in 1993. The prosecution opposed Rubino's motion. After considering extensive arguments of counsel, the trial court denied Rubino's motion to exclude the section 1108 evidence of his prior sexual molestations of Raymond S. and Jason B. in 1993.
C
Independently considering the circumstances in this case, we conclude the trial court correctly denied Rubino's motion to exclude the section 1108 evidence because the ALJ's administrative finding (as adopted by DSS) did not collaterally estop the prosecution from offering evidence of Rubino's 1993 sexual molestations of Raymond S. and Jason B.
No Privity. Assuming arguendo the other four threshold requirements for application of collateral estoppel were satisfied, we conclude the threshold requirement of privity was not satisfied. The fifth threshold requirement is that the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Gikas v. Zolin, supra, 6 Cal.4th at p. 849; Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) The determination whether a party is in privity with another for purposes of collateral estoppel is a policy decision. (Gikas, supra, at p. 849.) " 'Privity is essentially a shorthand statement that collateral estoppel is to be applied in a given case [assuming the other requirements are satisfied]; there is no universally applicable definition of privity.' [Citations.] 'The concept refers "to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is 'sufficiently close' so as to justify application of the doctrine of collateral estoppel." ' [Citations.]" (Ibid.)
Although we assume the third threshold requirement was satisfied, we nevertheless doubt whether the ALJ necessarily decided that Rubino did not engage in sexual conduct with Raymond S. and Jason B. in 1993. Based on the ALJ's finding that Rubino did not carry his burden to prove he did not arrange in 1997 to have a minor transported from another state into California for sexual purposes, the ALJ proposed that DSS uphold its denial of his application for a license to operate a foster home, which DSS did by adopting the Decision as its own. Therefore, the ALJ's finding regarding Rubino's 1993 sexual conduct could be deemed unnecessary to the Decision.
In the circumstances of this case, we conclude that DSS in the administrative proceeding and the San Diego County District Attorney (DA) in the instant criminal proceeding were not "sufficiently close" to warrant application of collateral estoppel. Privity is not established solely on the basis of the status of each party as an agent of the State of California. (People v. Sims, supra, 32 Cal.3d at pp. 487-488.) Although DSS and the DA are both agents of the State of California, we must also consider their relationship to each other in the context of the prior administrative proceeding. (Ibid.) In Sims, cited by Rubino, the court concluded there was privity between the parties because their relationship was sufficiently close in the circumstances of that case, explaining Sonoma County's district attorney closely cooperated with Sonoma County's social services department, and was directly involved in the investigation and administrative prosecution of welfare fraud under the relevant statutory scheme. (Ibid.) Sims stated: "The close association between the County and the district attorney's office can also be seen from the fact that the agencies operate jointly in investigating and controlling welfare fraud." (People v. Sims, supra, 32 Cal.3d at p. 487.) After discussing the specifics of the statutory welfare fraud scheme, Sims concluded: "In view of this close association between the County and the district attorney in controlling welfare fraud, and the fact that both entities are county agencies representing the state, this court finds that the County and the district attorney were in privity with each other." (Id. at p. 488, fn. omitted.) In Garcia, the California Supreme Court described (and reaffirmed) its finding of privity in Sims: "In view of the integrated relationship between the county and the district attorney in controlling welfare fraud, this court found in Sims that the county and the district attorney were in privity for purposes of applying collateral estoppel." (People v. Garcia (2006) 39 Cal.4th 1070, 1079.)
Sims explained: "[T]he County [was required] to establish a special investigative unit (SIU) to investigate suspected welfare fraud and to function as a liaison between the County and law enforcement agencies. The information gathered by the SIU is used by both the County and the district attorney. When evidence of fraud is uncovered, the SIU must request issuance of a criminal complaint from the district attorney and provide him with all records and reports pertinent to the case. [Citation.] [¶] In addition, an attempt by the County to obtain restitution of overpayments made to a welfare recipient suspected of fraud is sufficient to satisfy the [statutory] mandate . . . that the district attorney seek restitution before commencing criminal proceedings. [Citation.] Finally, when requested, the County must provide documentary evidence to the district attorney and ensure the appearances of investigators and other county officials at hearings and trials. [Citation.]" (People v. Sims, supra, 32 Cal.3d at pp. 487-488, fn. omitted.)
Unlike the circumstances in Sims, in this case the DA was not involved in either DSS's initial denial of Rubino's application for a license to operate a foster home or DSS's defense of his appeal of that denial in the administrative hearing before the ALJ. Furthermore, there is nothing in the record showing the DA received notice, or was otherwise aware, of Rubino's license application or the subsequent administrative hearing. Also, unlike Sims, there is no statutory or regulatory scheme involving the DA in the investigations of and decisions by DSS on applications for licenses to operate a foster home.
Because the DA was not a party to and did not have a sufficient interest in, participation in, or control over, the administrative hearing on Rubino's appeal of DSS's denial of his application for a license to operate a foster home, we conclude there was no privity between the DA and DSS for purposes of the doctrine of collateral estoppel. (Cf. People v. Demery (1980) 104 Cal.App.3d 548, 560-561, overruled in part on other grounds in People v. Sims, supra, 32 Cal.3d at p. 483, fn. 13 [finding at administrative hearing on physician's medical license by State Board of Medical Quality Assurance that physician did not violate Health and Safety Code section 11154 did not collaterally estop district attorney from prosecuting physician at criminal trial for the same violation, noting in part: "The function of the administrative proceeding was merely to police licensing requirements rather than make determinations of guilt or innocence of criminal charges."]; State v. Fritz (Conn. 1987) 527 A.2d 1157, 1166 [similar], overruled on another ground in State v. Crawford (Conn. 2001) 778 A.2d 947, 954, fn.6.; Pawlowski v. Pierce (1988) 202 Cal.App.3d 692, 698 [distinguishing Sims and finding no privity between DMV and district attorney where DMV suspended plaintiff's driver's license for failing to take a chemical test]; Bianchi v. City of San Diego (1989) 214 Cal.App.3d 563, 571 [no privity between city and city's retirement board regarding disability finding]; Geoghegan v. Retirement Board (1990) 222 Cal.App.3d 1525, 1533-1534 [same]; City of Gilroy v. State Bd. of Equalization (1989) 212 Cal.App.3d 589, 606-607 [no privity between city and State Board of Equalization regarding finding on sale of lottery tickets]; People v. Dawkins (1987) 195 Cal.App.3d Supp. 1, 4, 7 [no privity between BART and district attorney regarding prior arbitration finding that defendant/employee did not steal money from ticket machine]; People v. Meredith (1992) 11 Cal.App.4th 1548, 1559-1560 [no privity between state and federal prosecutors where state prosecutors were not involved in prior federal prosecution in which search was found unreasonable].)
Absent the threshold requirement of privity, the DA was not collaterally estopped by the ALJ's factual findings at the administrative hearing from proving contrary facts at Rubino's instant criminal trial. The DA was not bound by the ALJ's administrative hearing finding that "[Rubino] did not engage in sexual conduct with one or more minors including but not limited to [Jason B.] and/or [Raymond S.], then minors, in 1993." The trial court correctly concluded the DA could present section 1108 evidence of Rubino's prior sexual offenses, including his 1993 sexual molestations of Raymond S. and Jason B., as propensity evidence in proving Rubino's guilt of the instant sexual molestation offenses.
Public Policies. In addition to the absence of the threshold requirement of privity between the DA and DSS, we further conclude the public policies underlying the doctrine of collateral estoppel preclude its application in the circumstances of this case. The public policies underlying the doctrine of collateral estoppel are: (1) preservation of the integrity of the judicial system; (2) promotion of judicial economy; and (3) protection of litigants from harassment by vexatious litigation. (People v. Lucido, supra, 51 Cal.3d at p. 343.) We, like the court in Lucido, conclude the first public policy consideration outweighs the public policy considerations of judicial economy and protection from vexatious litigation. (Id. at pp. 347-351.) Although "[p]ublic confidence in the integrity of the judicial system is threatened whenever two tribunals render inconsistent verdicts," consistency between findings at a prior proceeding and a subsequent proceeding "is not the sole measure of the integrity of judicial decisions." (Id. at p. 347.) "We must also consider whether eliminating potential inconsistency (by displacing full determination of factual issues in criminal trials) would undermine public confidence in the judicial system. As has the majority of courts in other jurisdictions, we conclude it would." (Ibid.) As with the probation revocation hearing discussed in Lucido, an administrative hearing on DSS's denial of an application for a foster home license serves a different public interest than a criminal trial. (Ibid.)
An administrative hearing on a denial of an application for a foster home license presumably involves a determination of whether an applicant has shown he or she can provide a safe and nurturing environment for foster children under DSS's oversight. In contrast, a criminal trial involves a determination of whether a defendant has committed one or more criminal offenses. "It would not be fair to the People of this state to bind them by a decision made at a hearing which evolved from [a denial of an application for a foster home license]. Although the issue of fact may have been identical, the motivation to litigate was not the same. [¶] The purpose of the criminal justice system is to promote personal security and the stability of society by preventing conduct that unjustifiably threatens individual or public interests. The [DA] has the distinct goals of deterring crime specifically and generally, and of seeing that offenders are punished, and, if necessary, incarcerated. [DSS] has no interest in . . . incarcerating [applicants for foster home licenses] to prevent recurrences of crimes, or in generally deterring [nonapplicants]." (People v. Dawkins, supra, 195 Cal.App.3d at p. Supp. 7.)
Preemption in a criminal trial or of factual issues involved therein by findings made at a prior administrative proceeding "designed to perform a wholly independent social and legal tack would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes. (See Cal. Const., art. I, § 14 ['Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.'] [citation]." (People v. Lucido, supra, 51 Cal.3d at p. 349.) Lucido noted that collateral estoppel applies to preclude criminal trials only in those cases, like Sims, "when compelling public policy considerations [outweigh] the need for determinations of guilt and innocence to be made in the usual and criminal trial setting." (Lucido, at p. 349.) Lucido stated: "Our concern here about the overall integrity of the criminal trial process as the intended forum for determinations of guilt and innocence was less at issue in Sims, because the legislative determination about the relationship between the hearing and the criminal trial process deemphasized the role of criminal trials in the overall scheme for resolution of welfare fraud cases." (Id. at pp. 349-350.)
In contrast to Sims, in this case there has been no legislative determination that a finding at an administrative hearing on DSS's denial of an application for a foster home license should deemphasize the role of, or preclude, a criminal trial involving the same factual issues. (People v. Lucido, supra, 51 Cal.3d at pp. 349-350.) Therefore, Sims does not compel us to conclude either that the need to avoid inconsistent judicial determinations or preservation of the integrity of the judicial system warrants application of collateral estoppel. (Lucido at p. 350.) Because the differences between criminal trials and administrative hearings on DSS's denial of an application for a foster home license "outweigh whatever adverse effect inconsistent factual determinations would have on the integrity of the judicial system" (ibid.), we conclude the public policy of preservation of the integrity of the judicial system would be better served by finding collateral estoppel inapplicable in this case. Furthermore, like the court in Lucido, we believe that the concern regarding relitigation of issues, with potential or actual inconsistent findings, "is outweighed by the importance of preserving the criminal trial process as the proper forum for determinations of criminal guilt and innocence." (People v. Lucido, supra, 51 Cal.3d at p. 350, fn. 11.)
Furthermore, as in Lucido, we conclude there was "no fundamental unfairness to" Rubino because collateral estoppel did not preclude the admission of section 1108 evidence at his criminal trial, assuming arguendo the jury found true by a preponderance of the evidence that Rubino did sexually molest Raymond S. and Jason B. (People v. Lucido, supra, 51 Cal.3d at p. 350.)
Although, as Rubino notes, his criminal trial on the instant offenses could have proceeded even had the section 1108 evidence been excluded, we believe the public policy favoring the determination of criminal guilt or innocence in criminal trials supports the admission of that propensity evidence, even though there was a prior contrary administrative finding, because a prosecutor generally should not be precluded from presenting all evidence in his or her possession admissible to prove a defendant's guilt, including section 1108 propensity evidence.
Weighing the public policy of preservation of the integrity of the judicial system against the public policy of promotion of judicial economy, we, like the court in Lucido, conclude "the importance of preserving the criminal trial process as the exclusive forum for determining guilt or innocence" outweighs the public policy goal of judicial economy. (People v. Lucido, supra, 51 Cal.3d at p. 351.) Finally, regarding the third public policy consideration of protection of litigants from harassment by vexatious litigation, we, like the court in Lucido, conclude "it [was] neither vexatious nor unfair" for Rubino to be subjected to evidentiary hearings on his alleged 1993 sexual conduct both at the DSS administrative hearing and at his criminal trial on the instant offenses. (Ibid.) "The essence of vexatiousness . . . is not mere repetition. Rather, it is harassment through baseless or unjustified litigation. [Citation.]" (Ibid.) The record does not support a reasonable inference that either the instant criminal trial, or the admission of section 1108 evidence at that trial, was intended to harass Rubino. The public policy of protecting litigants from harassment by vexatious litigation would not be served by application of collateral estoppel in the circumstances of this case. (People v. Lucido, supra, 51 Cal.3d at p. 351.)
Because the threshold requirement of privity between the DA and DSS was not satisfied and the public policies underlying the doctrine of collateral estoppel militate against its application in the circumstances of this case, the trial court correctly concluded the DA was not collaterally estopped from presenting section 1108 evidence of Rubino's sexual molestations of Raymond S. and Jason B. in 1993, despite the ALJ's contrary finding at the prior DSS administrative hearing.
II
Exclusion of Evidence of ALJ's Finding
Rubino contends the trial court erred by excluding evidence on the ALJ's finding at the prior DSS administrative hearing that he did not engage in sexual conduct with Raymond S. and Jason B. in 1993. However, Rubino concedes his trial counsel did not expressly request that the ALJ's finding be admitted in evidence. Nevertheless, he argues any such request for admission of that evidence would have been futile because the record conclusively shows the trial court would have excluded it.
A
Rubino cites two excerpts from the trial record in support of his assertion that it would have been futile for his trial counsel to offer evidence of the ALJ's contrary finding. First, during cross-examination of Rubino, the prosecutor asked him: "Of course, nothing happened between you and Jason [B.]?" Rubino answered: "No, and the judge ruled that nothing happened in another case [presumably referring to the ALJ's finding at the administrative hearing]." The trial court sustained the prosecutor's motion to strike that portion of Rubino's answer after he said "No," finding it was not responsive, and instructed the jury to ignore it. The second excerpt is from a discussion among the trial court and counsel, out of the jury's presence, during a break in Rubino's testimony. The trial court stated: "[J]ust to set a record on the [ALJ's] decision. You both know I have been trying to stay away from that, and I want to congratulate both of you for doing a good job." After discussing the reasoning underlying the ALJ's decision, the trial court stated: "I wanted to stay away from it [i.e., the ALJ's decision]. It's [a section] 352 issue. If that comes in, it would have meant there would be a big argument what the [ALJ] saw and heard." When the trial court asked counsel if they wanted "to set a further record on that issue," Rubino's counsel stated: "Your honor, only to the extent that the court's comments go to the collateral estoppel issue. I would disagree in terms of what the order is in conflict." He stated he "certainly [didn't] want to forego a collateral estoppel issue . . . ."
B
In general, a reviewing court will not consider an appellate contention that a trial court made an erroneous ruling where an objection could have been, but was not, made in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; People v. Saunders (1993) 5 Cal.4th 580, 589-590; In re Dakota S. (2000) 85 Cal.App.4th 494, 501; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444.) "Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error. [Citation.]" (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.) For example, an appellant has been deemed to have waived an argument on appeal "that the [trial] court failed to give a specific instruction when [the appellant] did not request such instruction [citations]." (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 171.) The general rule of waiver or forfeiture is based on the unfairness to the trial court and adverse party were the appellant allowed to take advantage of an error on appeal when that error could easily have been corrected at trial. (Doers v. Golden Gate Bridge etc. Dist., supra, 23 Cal.3d at pp. 184-185, fn. 1; People v. Saunders, supra, 5 Cal.4th at p. 590; In re Dakota S., supra, 85 Cal.App.4th at p. 501.) Furthermore, "it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, ' "thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." [Citation.]' [Citation.]" (In re Dakota S., supra, at p. 501.) " 'The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .' [Citation.]" (People v. Walker (1991) 54 Cal.3d 1013, 1023.) " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (U.S. v. Olano (1993) 507 U.S. 725, 731.)
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a 'waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ' "intentional relinquishment or abandonment of a known right." ' [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Nevertheless, for the purposes of our discussion, we use the terms "waiver" and "forfeiture" interchangeably.
Nevertheless, an erroneous ruling may be raised on appeal even without an objection in the trial court if an objection to that ruling would have been futile. (People v. Welch (1993) 5 Cal.4th 228, 237; People v. Williams (1976) 16 Cal.3d 663, 667, fn. 4; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.) In the circumstances in People v. Chavez (1980) 26 Cal.3d 334, the court stated: "[A]ny objection at trial on the grounds urged before this court would clearly have been futile, in light of a number of prior Court of Appeal decisions upholding the admissibility of such prior inconsistent statements in the face of similar state constitutional challenges. [Citations.]" (Id. at p. 350, fn. 5.)
In the context of this appeal, Rubino does not cite any analogous case in which an appellant was allowed to raise on appeal a trial court's error in excluding evidence that was not offered by the appellant's trial counsel. Our review of relevant law shows a contention on appeal that a trial court erred in excluding evidence is generally waived or forfeited unless an offer of proof and/or objection to that error was made in the trial court. (§ 354 ; People v. Morrison (2004) 34 Cal.4th 698, 711 [offer of proof required].) "An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice." (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) "[A]n appellant must make an offer of proof in the trial court in order to claim on appeal that evidence was wrongly excluded. [Citation.] Similarly, if an appellant wishes to argue a point on appeal, it must first make a record by raising the point in the trial court. [Citations.]" (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433.)
Section 354 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." (Italics added.)
However, if an offer of proof or objection would have been futile, an appellant nevertheless may raise on appeal a trial court's erroneous exclusion of evidence. (Evid. Code, § 354, subd. (b); In re Catherine H. (2002) 102 Cal.App.4th 1284, 1292-1293.) "Where an entire class of evidence has been declared inadmissible or the trial court has clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal . . . ." (Beneficial etc. Ins. Co. v. Kurt Hitke & Co. (1956) 46 Cal.2d 517, 522; see also People v. Schmies, supra, 44 Cal.App.4th at p. 54, fn. 9; Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818, 1827, disapproved on another ground in Bonds v. Roy (1999) 20 Cal.4th 140, 149, fn.4.)
C
Although Rubino concedes he did not offer the ALJ's finding for admission in evidence at trial, he argues the offer would have been futile because the record conclusively shows the trial court nevertheless would have excluded it. Accordingly, he argues his instant contention was not waived or forfeited and can be raised on appeal.
Our review of the two excerpts cited by Rubino does not support his assertion that his offer of evidence of the ALJ's finding would have been futile. Regarding the first excerpt quoted above, the trial court merely excluded as nonresponsive to the prosecutor's question Rubino's reference to the ALJ's finding he did not sexually molest Jason B. The record cannot reasonably be interpreted as a ruling by the trial court that the ALJ's finding would be excluded had it been offered in evidence. Regarding the second excerpt quoted above, the trial court expressed its appreciation that counsel "stayed away" from the ALJ's decision. Citing section 352, the court explained that it wanted to stay away from the ALJ's decision. However, considering the record favorably to support the judgment, we conclude the record supports, at most, an inference that the trial court did not want counsel to refer to facts not admitted in evidence (i.e., the ALJ's finding). Although the court also mentioned its concerns regarding section 352, we cannot conclude, based on the record, that the court clearly would have excluded evidence of the ALJ's finding had Rubino offered that evidence.
Rather, we conclude that had Rubino offered evidence of the ALJ's finding and adequately argued in favor of its admissibility, the trial court would likely have admitted that evidence despite any initial section 352 concerns. At the time of Rubino's 2006 trial, there was case law that would have influenced the trial court to admit evidence of the ALJ's finding had Rubino offered it. In People v. Mullens (2004) 119 Cal.App.4th 648 (Mullens), we summarized the "Griffin rule:"
"In sum, [People v. Griffin (1967) 66 Cal.2d 459], and its progeny, as they pertain to this case, stand for the proposition . . . that if a trial court permits the prosecution to present evidence that the defendant committed one or more similar offenses for which he or she is not charged in the current prosecution, the trial court must also allow the defense to present evidence of the defendant's acquittal, if any, of such crimes, and failure to allow such acquittal evidence constitutes error. [Citations.]" (Mullens, supra, 119 Cal.App.4th at pp. 664-665.)
In Mullens, we concluded the Griffin rule applied in a sex offense case in which the trial court admitted section 1108 propensity evidence offered by the prosecutor showing the defendant had committed an uncharged sex offense. (Mullens, supra, 119 Cal.App.4th at pp. 665-669.) We stated:
"In a prosecution involving charges that the defendant committed lewd and lascivious acts against a child, admission of section 1108 propensity evidence that the defendant committed a sex offense against another child involves the risk of serious if not severe prejudice when the defendant is precluded from introducing evidence the defendant was acquitted of that offense." (Mullens, supra, 119 Cal.App.4th at p. 665.)
"To give full meaning to the presumption of innocence in a case in which the prosecution is permitted to present section 1108 propensity evidence showing the defendant committed an uncharged sex crime, a trial court must grant the defense an opportunity to present evidence showing the defendant was acquitted of that alleged uncharged sex offense. In such cases, justice is best served by applying the Griffin rule so as to give the trier of fact the opportunity to consider and weigh both types of evidence in reaching a verdict that is based not on who the defendant is, but on what the defendant did." (Mullens, supra, 119 Cal.App.4th at p. 666, italics added.) We concluded:
"For the foregoing reasons, we hold that the Griffin rule applies to cases in which propensity evidence is admitted under section 1108 and, if the defendant in such a case has been acquitted of a prior sex offense to which the section 1108 propensity evidence pertains, the trial court in such a case is required to admit evidence of the defendant's acquittal. [¶] Applying this holding to the present case, we conclude that the excluded evidence of Mullens's acquittal of the previously charged sex offense against V.A. was admissible as a matter of law under [Griffin] and its progeny, and thus the court committed error by excluding that evidence." (Mullens, at p. 669, italics added.)
Furthermore, we rejected the People's assertion that a trial court nevertheless retains discretion under section 352 to exclude Griffin evidence. (Mullens, supra, 119 Cal.App.4th at pp. 669-670, fn. 9.) We stated: "For the reasons already discussed, if the court in conducting its section 352 analysis decides that the section 1108 propensity evidence should be admitted, the court must also admit the evidence of acquittal to rebut the propensity evidence. The admission of acquittal evidence under the Griffin rule to rebut the propensity evidence assures fundamental fairness and protects the defendant's due process right to a fair trial and the right to present a defense." (Id. at p. 670, fn. 9, italics added.)
In the circumstances of this case, had Rubino offered in evidence the ALJ's finding that he did not engage in sexual conduct with Raymond S. and Jason B. in 1993 to rebut the prosecution's section 1108 propensity evidence showing Rubino sexually molested them, we conclude the trial court would likely have admitted that evidence of the ALJ's finding as the court presumably was aware of Mullens's holding regarding the Griffin rule and its analogous application to this case. In fact, the record shows the prosecutor cited and discussed Mullens with the trial court and Rubino's counsel in the course of opposing Rubino's in limine motion to exclude the propensity evidence based on collateral estoppel. The prosecutor noted that in Mullens the defendant had previously been acquitted of molesting a child, yet on the defendant's trial on other charges the prosecution could present evidence of that prior molestation as propensity evidence despite the acquittal. Accordingly, the prosecutor requested that the trial court follow Mullens and deny Rubino's motion to exclude the propensity evidence in this case. The trial court then asked Rubino's counsel: "What about the Mullens[] case? I thought it was appropriate. I don't know why I didn't mention it. The fact you are acquitted doesn't mean that you are innocent. It means that the D.A. hasn't met the standard of proof. Here the same standard of proof is being used in the administrative hearing as is used to bring in [section] 1108 evidence." Rubino's counsel replied: "I believe what the Mullens[] court is saying, the People may have not proved it up and fell short. . . . So we feel it can come in, which is the [section] 1108 standard."
Although neither the trial court nor counsel expressly discussed the Griffin rule aspect of Mullens, by their discussion of Mullens on the admissibility of section 1108 propensity evidence we presume they were also aware of our primary holding in Mullens--i.e., that the Griffin rule required the trial court to admit evidence offered by the defendant that he was acquitted in a prior trial of a charge involving that propensity evidence. Therefore, had Rubino offered in evidence the ALJ's finding, we conclude the trial court, aware of our Mullens holding, would have analogized this case to Mullens and applied it in the circumstances of this case and admitted that evidence to rebut the propensity evidence offered by the prosecutor.
Furthermore, even had the trial court not independently recalled that aspect of Mullens, it likely would have applied Mullens to admit evidence of the ALJ's finding had Rubino's counsel brought that holding to the trial court's attention.
Although Mullens involved a jury verdict acquitting the defendant of a charge involving propensity evidence and this case involves an administrative finding by the ALJ that Rubino did not engage in sexual conduct with Raymond S. and Jason B., that factual difference is not conclusive and would not have caused the trial court in this case to conclude our holding in Mullens was inapplicable. Rather, on reading our reasoning in Mullens, the trial court would likely have concluded Mullens applied to permit admission of evidence of the ALJ's finding to rebut the prosecutor's propensity evidence involving the same minors. However, because Rubino did not offer in evidence the ALJ's finding, the trial court had no occasion to decide that question and admit that evidence. Based on the record in this case, because Rubino did not offer in evidence the ALJ's finding and such an offer would not have been futile, we conclude Rubino waived or forfeited his contention on appeal that the trial court erred by excluding that evidence. (§ 354; People v. Morrison, supra, 34 Cal.4th at p. 711; Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at p. 1433; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1303-1304 [appellate contention held meritless because defendant failed to proffer evidence and trial court never made a ruling excluding that evidence]; cf. In re Catherine H., supra, 102 Cal.App.4th at pp. 1292-1293; Beneficial etc. Ins. Co. v. Kurt Hitke & Co., supra, 46 Cal.2d at p. 522.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., IRION, J.