Opinion
F072670
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES MORTON SALSGIVER, SR., Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR049177)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant James Morton Salsgiver appeals following his convictions on nine counts relating to allegations of inappropriate conduct with a minor child relative that lived with him in 2009 and 2010. The charges include three counts each of sodomy (Pen. Code, § 288.7, subd. (a)) and oral copulation (Id., subd. (b)) on a child under 10, and three counts of lewd and lascivious acts upon a child under 14 (§ 288, subd. (a)) with the special allegation that appellant is a habitual sexual offender (§ 667.71). Appellant contends evidence of his victim's alleged sexual conduct should have been admitted in appellant's defense. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case moved from Utah to California in 2009 to live with appellant, his grandfather, and appellant's wife, in Coarsegold, California. Several years after the victim returned to Utah, he reported to a teacher that he had been molested by his grandfather while he lived in California.
At trial, the victim detailed a consistent pattern of abuse at appellant's hands. The victim testified appellant would regularly watch pornographic videos on his computer and would ask the victim to watch them with him. Appellant would then have the victim orally copulate him as he watched the videos. At other times, appellant would take the victim to an unused building on the property where the two would engage in anal intercourse. The victim testified regarding appellant's use of "ointment" as a lubricant during some of these incidents and further explained that at times he was asked to penetrate appellant. After the victim returned to Utah, he testified appellant came to visit and, at that time, showed him a picture where appellant was standing in his underwear in a river. Evidence collected in the subsequent investigation resulted in the discovery of multiple pornographic Web sites visited by appellant's computer that related to incest and intercourse with young-looking boys, bottles of sexual lubrication, and several pornographic images involving appellant, including a video of him wearing women's lingerie while in a river. The investigation also uncovered another alleged victim, a young girl, who testified at trial to uncharged acts allegedly committed by appellant.
Appellant denied any criminal conduct occurred. He and his wife testified to facts suggesting the victim was at an afterschool care program at the time much of the alleged abuse occurred. Although appellant admitted to having an addiction to pornography, he claimed he had never shown any such videos or other pornographic images to the victim. Appellant's wife testified she had seen no signs of abuse.
In further support of his defense, appellant sought to introduce facts concerning the reason the victim lived with him and his wife to demonstrate how the victim gained knowledge relating to the sexual acts in question. Specifically, appellant alleged the victim came to live with him because of the victim's prior sexual misconduct. A police report created in Utah after the victim returned showed the victim told police he had engaged in prior sexual conduct with his siblings and other children that included anal intercourse. According to counsel, as the report was never introduced into evidence, the victim stated this conduct occurred around four or five years before the report, placing it prior to the alleged molestation.
Unconvinced that counsel's arguments were sufficient to demonstrate the timing of the events in question, the court held a hearing on the admissibility of this proffered evidence. At that hearing, the victim testified regarding the reported conduct and confirmed he told police he had engaged in sexual conduct with his siblings and other neighborhood children. The victim, however, was unable to state when this conduct had occurred, stating he thought it occurred before moving in with appellant but was not sure. In response, the prosecutor called the victim's father, who testified that to his knowledge the victim had no sexual issues before going to California and that the victim was sent to live with appellant only because he was having trouble getting along with his stepmother. It was only after returning that the victim engaged in inappropriate conduct with a female relative. The trial court considered this evidence and denied appellant's request to raise the victim's prior sexual history. The court noted at the time the victim "wasn't sure" when the acts occurred and "his father indicated that they did not happen and that he wasn't aware of any, and that's not the reason they sent him."
At the conclusion of the trial, appellant was found guilty, by a jury, of all nine charged offenses. He was ultimately sentenced to a term of 195 years to life. This appeal timely followed.
DISCUSSION
Appellant raises two partially alternative arguments related to his request to question the victim about the victim's sexual history. In the first, appellant contends the trial court wrongly precluded questioning under Evidence Code, section 782. In the second, appellant contends counsel failed to identify an alternative argument to admit the same evidence. As appellant's primary argument predominates, we begin with section 782. Standard of Review and Applicable Law
All further statutory references are to the Evidence Code unless otherwise stated. --------
Generally, a defendant may not question a witness who claims to be the victim of sexual assault about the victim's prior sexual activity. (§ 1103, subd. (c)(1); People v. Mestas (2013) 217 Cal.App.4th 1509, 1513 (Mestas).) Section 782, however, provides an exception to this general rule, and applies when the defense seeks to introduce relevant evidence of the prior sexual conduct of a complaining witness to attack the complaining witness's credibility. (See generally People v. Bautista (2008) 163 Cal.App.4th 762, 781-782; People v. Chandler (1997) 56 Cal.App.4th 703, 707-708 (Chandler); People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).)
Under section 782, the defendant must first file a motion requesting to introduce the contested evidence and provide an offer of proof. "If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant." (§ 782, subd. (a)(3).) "At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court." (Id., subd. (a)(4).)
Under section 780, relevant evidence is "any matter that has any tendency in reason to prove or disprove the truthfulness of [a witness's] testimony at the hearing." In Daggett the court discussed how a molestation victim's sexual history could be relevant:
"A child's testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them. In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant. Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted." (Daggett, supra, 225 Cal.App.3d at p. 757.)
When considering whether to admit evidence of this nature, it is not permissible for "the trial judge to make a credibility determination at the in camera hearing." (Chandler, supra, 56 Cal.App.4th at p. 711.) However, "[t]he purpose of an Evidence Code section 782 hearing is to establish the truth and probative value of the offer of proof, not to allow a fishing expedition based on sketchy and unconfirmed allegations." (Mestas, supra, 217 Cal.App.4th at p. 1518.) Thus, the court may reject allegations of prior conduct that are "sketchy and unconfirmed." (Ibid.)
A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. (Chandler, supra, 56 Cal.App.4th at p. 711.) Discussion
Appellant contends the trial court abused its discretion by failing to allow questioning about the victim's prior sexual experiences because appellant properly demonstrated that the victim engaged in sexual activity prior to the charged conduct. However, the record does not support this conclusion. While it is correct that appellant's offer of proof intoned that these acts occurred prior to the events leading to the relevant charges, the record at the subsequent hearing did not support this claim.
In requiring the hearing and again at its outset, the trial court expressed its concern that the allegations made would not be relevant if appellant could not demonstrate the conduct occurred prior to the acts leading to the pending charges. In reviewing the testimony provided at the hearing, the court noted that the victim could not recall exactly when the events occurred and that additional evidence concerning the victim's experience with other children showed those events arose after the molestation alleged in this case. Based on this review of the evidence presented, the trial court concluded the proffered evidence would not be admitted.
We see no abuse of discretion in the trial court's conclusion. First, while the trial court could not resolve credibility issues in reaching its conclusion, it could review the evidence and determine whether the proffered evidence was sufficient to demonstrate relevance in the form of adequate evidence of the timing of the conduct. The court's ruling appears partially related to an uncontested finding that postallegation conduct is irrelevant. The victim claimed he could not recall when the events occurred, despite believing he had been in trouble for some improper sexual activity before going to live with appellant, while the victim's father testified the only known incident of improper sexual conduct occurred after the victim returned from living with appellant. The trial court did not abuse its discretion in concluding this vague evidence regarding the timing of the victim's alleged sexual activity was insufficient to demonstrate relevance under section 782. With no demonstrable evidence of the relevant date, the proffered evidence was little more than a fishing expedition into the victim's past.
Second, the trial court was also permitted to exercise its discretion under section 352 to conclude the evidence was more prejudicial than probative. As noted, the evidence left substantial questions regarding the timing of the victim's alleged conduct. Even if the court accepted the victim's belief that he had been in trouble for sexual misconduct before being sent to live with appellant, there was no direct evidence on the timing or scope of those events. Additional evidence from the victim's father conflicted with the assertion the incidents involved multiple people or pre-allegation conduct. With no reasonable record of when the alleged conduct occurred, or how extensive the conduct was, the court was within its discretion to conclude any questioning would be unduly prejudicial due to the sketchy and unconfirmed nature of the evidence uncovered. Considering the nature of the evidence uncovered at the hearing, we find the trial court's decision to exclude the evidence on prejudice grounds would not constitute an abuse of discretion.
In his partially alternative argument, appellant contends that the evidence of the victim's report, if not demonstrated to be a true account occurring prior to his alleged molestation, was relevant as a prior false allegation of sexual assault. As appellant's counsel did not attempt to introduce the evidence on this ground, appellant contends he suffered from ineffective assistance of counsel. We do not agree. The fact the trial court could not identify the date when the alleged conduct occurred does not demonstrate the alleged report was false, only that it was not demonstrated to be relevant or otherwise would be unduly prejudicial. In our review, we see no evidence suggesting the alleged report—the sum or substance of which was never actually introduced into evidence—was indeed false. For this reason, we conclude appellant has not demonstrated counsel was deficient in failing to seek to introduce the evidence on this ground. Accordingly, appellant's ineffective assistance of counsel claim must fail. (See In re Champion (2014) 58 Cal.4th 965, 1007; People v. Hart (1999) 20 Cal.4th 546, 623-624 [" 'To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" ' "].)
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
DETJEN, J.