Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05781
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Thomas White of rape (Pen. Code, § 261, subd. (a)(2)) and simple assault (Pen. Code, § 240), a lesser offense to assault with intent to commit sodomy. Sentenced to state prison, defendant appeals. He contends that the trial court’s erroneous exclusion of certain defense evidence violated his right to due process, to present a defense and to confront witnesses. We will affirm the judgment.
FACTS
In the evening on June 30, 2006, the 38-year-old victim left Los Angeles with her sister-in-law, E.P., her girlfriend, S.M., and S.M.’s 14-year-old disabled daughter, M.M., on a road trip to Sacramento. E.P. wanted to visit her long time friend, Jeff Tatum, and to meet Ronnie Barksdale, a man she had developed a friendship over the telephone. S.M. wanted to visit her boyfriend. The victim was just along for the ride.
Upon arrival in Sacramento around 3:00 a.m. on July 1, 2006, they checked into Motel 6. E.P. received a telephone call from Barksdale. Barksdale wanted to see her right away and to bring a friend. E.P. reluctantly agreed unbeknownst to the victim. Meanwhile, the victim had taken her luggage to the room and took a shower. After putting on her pajamas, the victim left the bathroom, finding Barksdale and defendant in the room.
The victim described defendant as “extremely filthy” and his breath smelled like he had been smoking and drinking “forever.” He was “[v]ery disorderly, disrespectful, belligerent, sarcastic, and rude.” He used profanity and discussed sexual acts, commenting on the victim’s feet and smell. The victim told defendant to stop using profanity around 14-year-old M.M. and he responded in a “belligerent” manner.
After about 20 minutes, the victim got into one of the two beds which she was to share with E.P. The other bed was for S.M. and her daughter M.M. The victim started to doze off. Defendant sat next to her and “sniff[ed] over” her, commenting that she smelled good, had pretty feet, and that he wanted to suck her toes. The victim told him that he was “nasty” and, when he tried to touch her feet, she told him to “[k]eep his filthy hands off of [her] and get away.” She put her feet under the sheets. Defendant said he was not leaving until he got what he came for and went to the other bed. The victim dozed off again but awoke to S.M.’s shouting, “What are you doing?” Defendant had pulled the comforter off the other bed for M.M. to sleep on the floor. Defendant explained that he was making everybody comfortable so they could all go to bed. E.P. stated there was no room for defendant and Barksdale and that it was time for them to leave. Defendant responded angrily, “[W]e didn’t wait up all night for dumb bitches to come over and just leave.” Barksdale told defendant that they should leave and they left.
A short time later, E.P. looked out the window and saw Barksdale and defendant sitting in defendant’s car in the motel parking lot. Shortly thereafter, Barksdale called E.P. and asked for a ride home. E.P. agreed and, not wanting to go alone, took S.M. and M.M. with her, telling the victim they were leaving but would return shortly. The victim was asleep when they left.
The victim awoke to defendant’s knock on the door. She asked what he wanted. Defendant claimed, “We are out here and I need to get my shirt.” The victim believed that “we” included E.P. and the others. The victim opened the door. Defendant entered the room and walked towards the vanity. The victim got back into bed. After searching around, defendant walked to the door, closed it and locked it. Defendant got on top of the victim who was lying on her stomach and tried to kiss her. The victim told him to stop and to get off. When he pulled her hair, the victim grabbed her cell phone and hit defendant with it. He moved her underwear and tried to sodomize her. The victim struggled and defendant put his penis in her vagina. He did not wear a condom. The victim continued to struggle to get away and then falsely claimed she had AIDS. Defendant continued and she hit him on the head with her cell phone and the phone partially broke. She continued to struggle and defendant fell to the floor. The victim did not know whether defendant had ejaculated. He left the room.
The victim immediately called E.P. The victim was upset and crying. E.P. was in the parking lot of the motel, having just returned from dropping Barksdale off, and saw defendant walking down the stairs from the room. The victim told E.P. that defendant had raped her. E.P. called 911 and defendant drove slowly out of the parking lot.
About nine police officers responded to the scene at 6:00 a.m. One of the officers stated that upon arrival, the victim was crying and had red marks on her neck. Another officer at the scene spoke with the victim who recounted the sexual assault substantially as she testified at trial.
The victim was taken to U.C. Davis Medical Center. She arrived about 7:30 a.m. and waited until 11:20 a.m. for a sexual assault examination to begin. The examination revealed tears inside her vagina which were consistent with recent blunt trauma which was often seen during such examinations. The examination concluded at 1:00 p.m. The victim’s testimony at trial was consistent with her report of the assault to the examiner except the victim had stated that defendant had pulled out some of her hair and had grabbed her by the neck and flipped her over and licked her neck and chest. The examiner noticed no hair missing. The examiner collected a black nightgown. The victim tested negative for alcohol and all drugs.
The victim claimed she does not drink but consumed alcohol on her birthday. E.P. testified that the victim has a drink every now and then.
The defense called Sacramento County Sheriff Detective Lisa Bowman who interviewed the victim at the medical center before the victim was examined. The victim’s trial testimony was somewhat inconsistent with the statement she gave to Bowman. The victim told Bowman that she put her pajamas on after defendant and Barksdale arrived; she did not state that she had falsely told defendant she had AIDS; she did not claim she broke her cell phone during the attack; she knew defendant’s name was “Tivo”; E.P. woke her up before they left); and she followed defendant to the door to lock it behind him but he pushed her to the bed. Bowman noticed no missing braids despite the victim’s claim that defendant had pulled some out.
Barksdale testified that during the victim’s trip from Los Angeles to Sacramento, defendant and the victim spoke on the phone a few times. Barksdale claimed that E.P. invited them to the motel and that the victim put on a see-through black nightie. Barksdale claimed the victim had insulted him about his height and that she had used profanity. Defendant, who had had “a few beers,” and was intoxicated gave the victim a 30- minute massage. Barksdale got tired and he, not E.P., suggested that they leave. When he and defendant got into defendant’s car, defendant felt sick. After sitting in the car for 45 minutes, Barksdale called E.P. and asked for ride home because defendant was unable to drive.
On cross-examination, Barksdale stated that after he heard about the victim’s accusations, Barksdale asked defendant what had happened. Defendant claimed that the victim had waved him up to the room and that the sexual intercourse was consensual. Barksdale testified that defendant seemed confused about the victim’s complaints.
Defendant testified at trial. During the victim’s ride up to Sacramento, he talked to her on the phone. They planned to “kick it” and have drinks. At the motel, the victim was rude, called Barksdale a name, “Shorty,” and used profanity. Defendant argued with her. The victim made suggestive comments about sucking toes. He offered her a massage and she accepted. The victim told him that if her friends were not there, they could do something. When E.P. asked defendant and Barksdale to leave, they did but sat in the car in the parking lot for half an hour. Defendant was not ready to leave so Barksdale called E.P. for a ride. As E.P. drove off with Barksdale, defendant went up the stairs as the victim watched him from the window and the victim immediately opened the door when he knocked. Without any conversation, the victim went to the bed and got on her knees, “in the doggie style position.” He moved her panties aside and put his penis in her vagina. Five to 10 minutes later during sexual intercourse, the victim said, “‘This isn’t right, we shouldn’t be doing this.’” He pulled up his pants and left. He claims the victim was not mad. He then sat in his car in the parking lot for 25 minutes, drinking a beer and smoking a cigarette, contemplating what he was going to tell his wife when he got home. He denied he raped the victim. He also denied that he attempted to sodomize her.
On cross-examination, defendant denied telling a detective that after the phone call during the victim’s drive up to Sacramento, he planned to have sex with her. He admitted that he lied when he told Barksdale that the victim waved him up to the room. He denied he told a detective that he liked the victim’s rudeness.
In rebuttal, the prosecutor introduced Barksdale’s videotaped statement to detectives made the day of the attack. Barksdale said that when he talked to E.P., she told them they had arrived at the motel and were going to sleep; Barksdale asked to visit that night. When he and defendant left the motel room, they sat in defendant’s car and defendant refused to drive away. Barksdale told defendant, “‘You didn’t catch the hint? They want us to leave. They [are] tired.’” Barksdale called defendant “a little drunk fool.”
The prosecutor also introduced defendant’s videotaped statement to detectives. Defendant stated that he did not know the victim’s name. He did not know if he talked to the victim on the phone during her ride up to Sacramento. He planned to have sex with one of the women at the motel. When they got to the motel, the victim was asleep or was pretending to be asleep. He liked that the victim was rude to him in the room. After E.P. left with Barksdale, defendant planned to go to the room and have sex with the victim. Defendant stated that the victim never asked him to get everyone to leave and then come back to the room.
DISCUSSION
Defendant contends that the trial court erroneously excluded evidence concerning the victim’s behavior the evening after the alleged rape, violating his constitutional rights to due process, to present a defense and to confront witnesses. We find no error.
Background
Prior to the commencement of voir dire, the prosecutor sought to exclude the testimony of Tatum whose statement the prosecutor had received from defense counsel. According to the prosecutor, Tatum claimed that after the alleged assault, the victim did not act like a rape victim in that she wore a mini-skirt and flirted with two men who were friends with S.M. Tatum said the victim flirted when “she would lie down on the bed in a certain way” for a couple of minutes. The prosecutor argued such subjective interpretations and beliefs about how a rape victim should act should be excluded on the grounds that it was irrelevant and inadmissible sexual conduct evidence, citing Evidence Code sections 782, 1103, and 352. Defense counsel did not file a written motion or present an affidavit as to Tatum’s testimony. Instead, defense counsel chose to orally argue the motion. He claimed that Tatum’s testimony was offered to show that “a reasonable person would not have acted as [the victim] had had she been raped the same day.” Defense counsel argued he was not offering Tatum’s testimony to prove the victim acted a certain way with defendant or gave consent but instead to impeach her credibility. He claimed Evidence Code sections 782 and 1103 were inapplicable since Tatum’s testimony was not about the victim’s prior sexual conduct. The prosecutor claimed the evidence was marginally relevant, if at all, more prejudicial than probative, and would confuse the jury. The prosecutor noted that defense counsel had not followed the required procedure under section 782. The court suggested that Tatum’s testimony was relevant to consent in that a victim who had been raped would not have acted in the manner Tatum claimed and that sections 782 and 1103 would preclude the admission of such evidence. Defense counsel insisted that consent was a different issue. The court granted the prosecutor’s motion to exclude Tatum’s testimony, finding that Tatum’s claims about the victim’s behavior after the sexual assault were related to consent and precluded by Evidence Code sections 782 and 1103. The court stated that the issue may be revisited depending on the victim’s testimony.
The prosecutor also sought to exclude Barksdale’s statement that the victim was not acting like a rape victim since she was “ready to kick it with the next dude.” Defense counsel withdrew his request to introduce Barksdale’s statement because his statement was based on hearsay.
Evidence Code section 782 provides:
Evidence Code section 1103 provides:
Evidence Code section 352 provides:
On cross-examination, the victim testified that S.M.’s boyfriend and a friend of his visited them at the motel a couple of hours after the victim left the hospital and that they went to a Chinese restaurant that night. The court sustained the prosecutor’s relevancy objection when defense counsel asked who went to the Chinese restaurant. The victim stated the two friends of S.M. stayed long enough to go to the room. The victim stated that she returned to Los Angeles the next night but the court sustained the prosecutor’s relevancy objection as to whether it was sooner than when they had originally planned.
Later during trial and outside the presence of the jury, defense counsel stated that he had had problems locating Tatum who was supposedly at Folsom Prison. Defense counsel explained that Tatum would testify that the victim’s demeanor changed during the day after the alleged sexual assault in that she seemed happy and went to dinner with S.M., S.M.’s boyfriend and another man. The prosecutor objected on the same grounds as previously raised. The court excluded such testimony, finding that such testimony was inconsistent with Evidence Code section 1103 and irrelevant.
Subsequently, defense counsel explained that he had located Tatum who was in custody in Sacramento County Jail. Tatum had confirmed his statements and added that he had gone with E.P. and the victim to the hospital. Upon the victim’s release, E.P. told Tatum that she was unable to visit with him because she and the victim had to leave that evening and return to Los Angeles based on what had happened. The victim stated that they did not have to leave and that they could stay and “‘party.’” E.P. and the victim stayed. The court excluded the proposed testimony, stating: “I’m still not going to allow Mr. Tatum’s testimony. I find it’s not relevant to the issues here. What you’re asking me to do is to allow testimony with regard to how a person should act having recently gone through a rape examination. And I don’t find, in fact, the testimony of Mr. Tatum would be probative on that issue since I don’t know how we make the determination as to how a rape victim should ever act.”
Analysis
Defendant argues that the trial court abused its discretion in excluding the evidence of the victim’s conduct because neither Evidence Code section 782 nor Evidence Code section 1103, subdivision (c), is applicable to the victim’s conduct after the alleged sexual assault. Defendant claims that said code sections are applicable to the victim’s prior sexual conduct. He also argues that the evidence he sought to introduce was related to the victim’s credibility and necessary to counter the prosecution’s evidence that the victim was visibly upset after the alleged violent sexual assault. Defendant contends that the trial court’s error violated his rights to due process, to present a defense, and to confront and examine the witnesses against him. Anticipating the Attorney General’s argument that defendant has forfeited his claim that the exclusion of the evidence violated his rights to due process and confrontation by failing to expressly so state, defendant cites People v. Partida (2005) 37 Cal.4th 428 (Partida) for the proposition that he is permitted to argue that the trial court’s exclusion of the evidence on statutory grounds had the further legal consequence of violating his constitutional rights. Defendant argues his defense was undermined and the trial court’s error was not harmless beyond a reasonable doubt since the evidence was not overwhelming but instead was “rife with inconsistencies.”
Evidence Code section 1103, subdivision (c) “provides that a defendant cannot introduce opinion evidence, reputation evidence, and evidence of specific instances of the alleged victim’s previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts alleged. In adopting this section the Legislature recognized that evidence of the alleged victim’s consensual sexual activities with others has little relevance to whether consent was given in a particular instance.” (People v. Chandler (1997) 56 Cal.App.4th 703, 707, fn. omitted (Chandler).)
Evidence Code section 1103 provides an exception, however, for evidence relevant to attack the victim’s credibility. (Evid. Code, § 1103, subd. (c)(5).)
Evidence Code section 782 sets forth the procedure a defendant must follow in order to present evidence attacking the credibility of the victim in a sexual offense case. He must file a written motion with an offer of proof of the relevancy accompanied by an affidavit. (Evid. Code, § 782, subd. (a)(1) & (2).) If the court finds the offer of proof to be sufficient, the court must allow a defendant to cross-examine the victim on the offer of proof outside the presence of the jury. (Evid. Code, § 782, subd. (a)(3).) The court then determines in its discretion whether the evidence is relevant to the victim’s credibility and not more prejudicial than probative under Evidence Code section 352. (Evid. Code, § 782, subd. (a)(4).)
In exercising its discretion, the trial court must “insure that this exception to the general rule barring evidence of a complaining witness’ prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a ‘back door’ for admitting otherwise inadmissible evidence.” (People v. Rioz (1984) 161 Cal.App.3d 905, 918-919.)
“Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, original italics.)
Finding People v. Shoemaker (1982) 135 Cal.App.3d 442 (Shoemaker) analogous, the Attorney General argues that Evidence Code sections 782 and 1103, subdivision (c)(1), should not be limited to a victim’s prior sexual conduct but instead should be interpreted to apply as well to a victim’s subsequent sexual conduct.
In Shoemaker, the defendant was convicted of assault with a deadly weapon and the jury found that he inflicted great bodily injury. (135 Cal.App.3d at p. 444.) During trial, the prosecutor moved to exclude defense evidence of the victim’s subsequent acts of violence. About two and a half months after defendant’s assault on the victim, the victim terrorized an elderly couple and shot at one of them. (Id. at p. 445.) Shoemaker held that the subsequent character evidence was relevant and admissible under Evidence Code section 1103 unless properly excluded under Evidence Code section 352. (Id. at p. 448.) Although the case law considering character evidence of violence under Evidence Code section 1103 discussed prior rather than subsequent acts of aggression, Shoemaker found the views of Wigmore “compelling”: “the time of character evidence ‘. . . as a question of Relevancy, is simple enough . . . . Character at an earlier or later time than that of the deed in question is relevant only on the assumption that it was substantially unchanged in the meantime, i.e., the offer is really of character at one period to prove character at another, and the real question is of relevancy of this evidence to prove character, not of the character to prove the act.’ (1 Wigmore, Evidence (3d ed. 1940) § 60, p. 463; italics in original.) He then concluded that ‘. . . there is no difficulty from the point of view of the relevancy of character; a man’s trait or disposition a month or a year after a certain date is as evidential of his trait on that date as his nature a month or a year before that date; because character is a more or less permanent quality and we may make inferences from it either forward or backward.’ (5 Wigmore, Evidence (Chadbourn rev. ed. 1974) § 1618, p. 595.)” (Shoemaker, supra, 135 Cal.App.3dat pp. 447-448.)
We agree with the Attorney General that Evidence Code section 1103, subdivision (c), should be interpreted the same way - it applies equally to the victim’s subsequent sexual conduct. Thus, evidence of specific instances of the victim’s subsequent sexual conduct is not admissible to prove the victim consented.
Here, defendant did not follow the procedure in section 782 for introduction of the victim’s subsequent sexual conduct. He argued instead that section 782 was not applicable because the victim’s subsequent conduct was not sexual conduct but instead was conduct that went to her credibility. “[S]exual conduct, as that term is used in sections 782 and 1103, encompasses any behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity. The term should not be narrowly construed.” (People v. Franklin (1994) 25 Cal.App.4th 328, 334, fn. omitted.)
Defendant sought to introduce evidence that countered the prosecutor’s evidence that the victim was visibly upset after the sexual assault. Several witnesses had testified that the victim had been crying and was upset. Defendant wanted to introduce Tatum’s testimony that subsequent to the sexual assault examination at the hospital, the victim’s demeanor changed in that she (a) declined to go home to L.A. immediately thereafter, (b) and instead, wanted to stay in Sacramento to “party,” (c) seemed happy when she went to dinner later that night, (d) wore a mini-skirt, and (e) flirted with two men by lying on a bed in an unspecified manner for a couple of minutes.
The conduct described in (e), flirting with men by lying on a bed, could possibly be considered “sexual conduct” or “behavior that reflects the actor’s or speaker’s willingness to engage in sexual activity” but the victim’s manner of lying on the bed was not specified. The lack of a written motion and affidavit under section 782 forfeits relief here. (People v. Sims (1976) 64 Cal.App.3d 544, 553-554.) In any event, “the credibility exception” allowing admission of evidence of the victim’s sexual history to attack the victim’s credibility has been used “sparingly, most often in cases where the victim’s prior sexual history is one of prostitution. [Citations.] Evidence the victim participated in a form of prostitution is conduct involving moral turpitude which is admissible for impeachment purposes. [Citation.] Prostitution is a crime of moral turpitude. [Citations.]” (Chandler, supra, 56 Cal.App.4th at pp. 708-709.) Here, there was no evidence of prostitution.
Since a victim’s manner of dress during the commission of the offense is not relevant and admissible unless shown otherwise in the interests of justice (§ 1103, subd. (c)(2)), the victim’s manner of dress, that is, a mini-skirt, subsequent to the assault was not relevant since it was not shown to be relevant. Further, the issue is forfeited by defendant’s failure to file a written motion and sworn affidavit.
Here, evidence of the victim’s manner of dress during the commission of the offense was admitted. The victim testified she wore pajamas. The examiner stated that she collected the victim’s black nightgown. The parties stipulated that part of the victim’s sleepwear consisted of a black gown, 33 inches long and 30 1/2 inches wide.
The victim’s desire to stay in Sacramento to “party” was not otherwise specified and certainly was not described as behavior reflecting her “willingness to engage in sexual activity.” That the victim declined to return to L.A. after the assault examination and seemed happy at dinner does not amount to behavior reflecting her “willingness to engage in sexual activity.” Such conduct was not sexual conduct subject to the procedure set forth in section 782.
The evidence, however, was only marginally relevant, if at all, to the victim’s credibility. The only issue at trial was whether the victim consented to the act of sexual intercourse. Defendant testified and admitted that he had sexual intercourse with the victim and that she consented. The victim testified that she did not consent. The evidence defendant sought to introduce was not inconsistent with the testimony of witnesses that the victim was visibly upset after the assault which occurred about 5:00 a.m. on July 1. The evidence defendant offered did not conflict with this testimony. No one testified that the victim was visibly upset after the sexual assault examination. The victim waited some time in the hospital before the start of the examination. The examination did not conclude until 1:00 p.m. on July 1, about seven hours after the assault. The trial court did not abuse its discretion in excluding the evidence. The probative value of the evidence offered was minimal.
We reject defendant’s contention that the trial court’s rulings resulted in a violation of his constitutional rights to due process, to present a defense and to confront witnesses. The “basic rules of evidence do not violate a defendant’s constitutional right to present a defense.” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) To the extent defendant contends that due process required the court to admit Tatum’s testimony to attack the victim’s credibility, the argument is not cognizable because defendant did not raise that ground in the trial court. (Partida, supra, 37 Cal.4th at pp. 437-438.) To the extent defendant argues the court’s ruling itself violates due process, he has failed to demonstrate that the ruling rendered the trial fundamentally unfair. (Id. at pp. 438-439.)
Assuming any error, it was harmless under People v. Watson (1956) 46 Cal.2d 818. “Where a ‘trial court’s ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense,’ the ruling does not constitute a violation of due process and the appropriate standard of review is whether it is reasonably probable that the admission of the evidence would have resulted in a verdict more favorable to defendant.” (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
The defense presented other similar evidence. The defense got in evidence the victim’s manner of dress during the commission of the offense. Contrary to the impression that the victim wore pajamas during the commission of the sexual assault, the parties stipulated that part of the victim’s sleepwear included a black gown. On cross-examination, the victim testified that S.M. and her boyfriend and another friend came to the motel room a couple of hours after the victim’s sexual assault examination and that “they” went out to dinner. Although the court sustained the prosecutor’s relevancy objection to defense counsel’s query as to who the victim meant by “they,” a reasonable inference from her testimony was that by “they,” the victim included herself. The victim also testified on cross-examination that she did not return to Los Angeles until the following night. Any error in excluding Tatum’s testimony was clearly harmless.
DISPOSITION
The judgment is affirmed.
I concur: NICHOLSON, Acting P. J., ROBIE, J.
“(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed:
“(1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.
“(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court.
“(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
“(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
“(5) An affidavit resealed by the court pursuant to paragraph (2) shall remain sealed, unless the defendant raises an issue on appeal or collateral review relating to the offer of proof contained in the sealed document. If the defendant raises that issue on appeal, the court shall allow the Attorney General and appellate counsel for the defendant access to the sealed affidavit. If the issue is raised on collateral review, the court shall allow the district attorney and defendant’s counsel access to the sealed affidavit. The use of the information contained in the affidavit shall be limited solely to the
pending proceeding.
“(b) As used in this section, ‘complaining witness’ means:
“(1) The alleged victim of the crime charged, the prosecution of which is subject to this section, pursuant to paragraph (1) of subdivision (c).
“(2) An alleged victim offering testimony pursuant to paragraph (2) or (3) of subdivision (c).
“(c) The procedure provided by subdivision (a) shall apply in any of the following circumstances:
“(1) In a prosecution under Section 261, 262, 264.1, 286, 288, 288a, 288.5, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit any crime defined in any of those sections, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504.
“(2) When an alleged victim testifies pursuant to subdivision (b) of Section 1101 as a victim of a crime listed in Section 243.4, 261, 261.5, 269, 285, 286, 288, 288a, 288.5, 289, 314, or 647.6 of the Penal Code, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.
“(3) When an alleged victim of a sexual offense testifies pursuant to Section 1108, except if the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4 of the Penal Code, or in the state prison, as defined in Section 4504 of the Penal Code.”
“(a) In a criminal action, evidence of the character or a
trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
“(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
“(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).
“(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision, in any
prosecution under Section 261, 262, or 264.1 of the Penal Code, or under Section 286, 288a, or 289 of the Penal Code, or for assault with intent to commit, attempt to commit, or conspiracy to commit a crime defined in any of those sections, except where the crime is alleged to have occurred in a local detention facility, as defined in Section 6031.4, or in a state prison, as defined in Section 4504, opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness.
“(2) Notwithstanding paragraph (3), evidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution for an offense specified in paragraph (1), unless the evidence is determined by the court to be relevant and admissible in the interests of justice. The proponent of the evidence shall make an offer of proof outside the hearing of the jury. The court shall then make its determination and at that time, state the reasons for its ruling on the record. For the purposes of this paragraph, ‘manner of dress’ does not include the condition of the victim’s clothing before, during, or after the commission of the offense.
“(3) Paragraph (1) shall not be applicable to evidence of the
complaining witness’ sexual conduct with the defendant.
“(4) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and that evidence or testimony relates to the complaining witness’ sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the prosecutor or given by the complaining witness.
“(5) Nothing in this subdivision shall be construed to make
inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.
“(6) As used in this section, ‘complaining witness’ means the
alleged victim of the crime charged, the prosecution of which is
subject to this subdivision.”
“The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”