Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH44424
Jones, P.J.
Ariel Tamis Bumanlag appeals from a judgment entered after a jury convicted him on eight counts of oral copulation with a minor under 14 and more than 10 years younger than himself (Pen. Code, 288a, subd. (c)(1) ), one count of oral copulation with a minor under the age of 16 (§ 288a, subd. (b)(2)), eight counts of sodomy on a minor under 14 and more than 10 years younger than himself (§ 286, subd. (c)(1)), and one count of sodomy on a minor under the age of 16 (§ 286, subd. (b)(2)). He contends his conviction must be reversed because (1) the trial court excluded three adolescent spectators from the courtroom while the victim was testifying, (2) the court erroneously admitted certain evidence at his trial, and (3) he received ineffective assistance of counsel. We will reject these arguments and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of repeatedly molesting John Doe, his own son.
Seventeen-year-old T.J. gave birth to John in October 1992. The father was her boyfriend, appellant, who was then 25 years old. Appellant and J. never married and John lived with his mother until the end of first grade. At that point, John went to live with appellant on Hanover Street in Livermore where he planned to repeat the first grade. Appellant and John shared the Hanover Street residence with several relatives: John’s aunt and her family lived in the master bedroom, John’s grandparents stayed in the living room, while appellant and John shared a bedroom and a bed.
While John was living on Hanover Street and was in first grade, he noticed that his father’s penis was different from his own. John was curious and one time while they were sleeping, he touched appellant’s penis and put it in his mouth.
A few days later, appellant asked John to “‘[d]o what you did last time.’” Appellant demonstrated what he wanted by putting his mouth on John’s penis. The sensation felt good to John and he did what he was asked; he put his mouth on appellant’s penis.
So began a series of molestations that continued for several years. Appellant encouraged John to copulate him roughly every other day. At one point, appellant showed John a video of two women performing oral sex on a man and encouraged him to “do it just like in the video.”
When John was in second or third grade, appellant tried to sodomize him. John was too small and he complained of pain so appellant stopped. Appellant resumed his attempts at anal sex when John was in fourth or fifth grade. John acquiesced eventually and thereafter, appellant sodomized him roughly once a week. The intercourse was painful to John and he occasionally noticed his anus was bleeding afterwards. Appellant would stop for “a while” but then resume.
At one point, John realized that it was improper to engage in sexual activity with appellant and he tried to avoid it. Appellant, however, would coerce John by keeping the lights on or not letting him go to sleep until appellant got his way. John did not feel close enough to his mother or other family members to tell them what was happening.
By the time John was in seventh grade he often misbehaved at school and he argued with appellant at night. After one such argument, police officers came to his residence. One of the officers spoke privately with John and asked whether he was being abused. John said no because he did not know what would happen to him if he told the truth.
Shortly after John entered high school, he became friends with a fellow student named Rachel Gaines. As their friendship developed, John confided to Gaines that appellant was molesting him sexually.
On Wednesday, November 7, 2007, while John was at school, he was summoned to the vice principal’s office. When John arrived, he saw Gaines was there and he realized that she must have told about the abuse. John confirmed that appellant was molesting him and the vice principal called the police. John told police officers about appellant’s abuse.
Based on these facts, an information was filed charging appellant with, inter alia, the offenses we have set forth above. The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution buttressed its case with testimony from Detective Elaine Briggs, who interviewed John at his high school on November 7, 2007, James Yeager, the vice principal of John’s school, Dr. James Crawford, who conducted a medical examination of John shortly after he met with the police, and Rachel Gaines, who described the circumstances surrounding John’s revelation of the abuse. The prosecution also presented testimony from Miriam Wolf, an expert on Child Sex Abuse Accommodation Syndrome (CSAAS). Wolf explained that children who are abused sexually commonly behave in ways that are unexpected.
The defense countered with two witnesses. The first was John’s mother, T.J. She said that she and her daughter had occasionally shared living quarters with appellant and John and that she had not seen any inappropriate behavior. J. described John as a difficult and defiant child and she claimed that on three occasions, John had told her that the accusations against appellant were false.
John denied telling his mother that the accusations he was making against appellant were false.
The defense also presented evidence from John’s cousin, Romel Gomez, who stated that while growing up, he occasionally slept in a room with appellant and John and he did not see any inappropriate behavior.
The jurors considering this evidence convicted appellant on all the charged counts. Subsequently, the court sentenced appellant to 39 years, 4 months in prison.
II. DISCUSSION
A. Exclusion of Adolescent Spectators
At the beginning of trial, and before the start of testimony, the prosecutor informed the court that there were children in the courtroom. She asked the court to exclude the children during John’s testimony on the grounds that testifying in front of them would be embarrassing to John and potentially harmful to the children.
Defense counsel replied that the children were relatives of appellant and that they were accompanied by their parents. Counsel argued that excluding the children would violate appellant’s constitutional right to a public trial.
The court identified the children involved. Two were 13 years old and one was 14 years old. All had permission from their parents to miss school and to attend the proceedings.
After hearing argument from counsel, the court ruled the children would be excluded from the courtroom during John’s testimony, explaining its decision as follows: “In view of the age of the children, two 13-year-olds and a 14-year-old, and – given their age, primarily, because – for reasons of protecting the victim – the complaining witness in this type of sexual assault, the court is going to order that the children be excluded from hearing this graphic testimony. So I’m going to have the... two 13-year-olds and the 14-year-old wait outside. They are underage, and this is a sensitive case. And the court does have some leeway in terms of protecting this victim of crime – alleged victim of crime.”
Appellant now contends his conviction must be reversed because the court excluded his three adolescent relatives from the courtroom while John was testifying.
A criminal defendant has the right to a public trial that is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 15 of the California Constitution. (People v. Prince (2007) 40 Cal.4th 1179, 1276.) The right to a public trial serves two important interests. First, it protects those who are accused of a crime helping to ensure that the innocent are not unjustly convicted and the guilty awarded a fair trial. (In re Oliver (1948) 333 U.S. 257, 270, fn. 25.) Second, there is a “strong societal interest in public trials.” (Gannett Co. v. DePasquale (1979) 443 U.S. 368, 383.) They provide an opportunity for spectators to observe the judicial system, improve the quality of testimony, encourage witnesses to come forward with relevant testimony, and prompt judges, lawyers, witnesses, and jurors to perform their duties more conscientiously. (Ibid.)
While the right to a public trial is important, it is not inviolable. “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” (Waller v. Georgia (1984) 467 U.S. 39, 45; see also Presley v. Georgia (2010) ___ U.S. ___, ___ [130 S.Ct. 721, 724].) Even then, however, a complete closure of trial must be supported by exceptional circumstances. To justify a complete closure, there must be an overriding interest that is likely to be prejudiced, the closure must be no broader than is necessary to protect that interest, reasonable alternatives to closure must be considered, and there must be adequate findings to support the closure. (Ibid.; see also Presley v. Georgia, supra, 130 S.Ct. at p. 724 & People v. Woodward (1992) 4 Cal.4th 376, 383.)
A different rule is applied to partial closures, including the situation where members of the defendant’s family are excluded solely for the testimony of a single witness. In partial closure cases, the reviewing court must determine “whether the trial judge had a substantial reason for the closure” and “whether the closure was narrowly tailored to exclude spectators only to the extent necessary to satisfy the purpose for which it was ordered.” (U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, 1357; see also Martin v. Bissonette (1st Cir.1997) 118 F.3d 871, 875; Woods v. Kuhlmann (2d Cir.1992) 977 F.2d 74, 76; Nieto v. Sullivan (10th Cir. 1989) 879 F.2d 743, 752-754.) The less stringent standard is justified because a partial closure does not implicate the same secrecy and fairness concerns as a complete closure. (Woods v. Kuhlmann, supra, 977 F.2d at p. 76.)
Applying the less stringent standard here, we conclude appellant’s rights were not violated. There was a “substantial reason” for the closure. The trial court explained that it wanted to avoid embarrassing John (who was only 15 years old at the time of trial) by having him testify about “graphic” allegations of sexual abuse in front of his adolescent relatives. The United States Supreme Court has recognized that protecting the psychological well-being of a minor witness is a compelling justification that can justify a closure. (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607-608.) Many other courts have ruled similarly. (See, e.g., U.S. v. Osborne (5th Cir. 1995) 68 F.3d 94, 98-99; U.S. v. Farmer (8th Cir. 1994) 32 F.3d 369, 372; U.S. v. Sherlock, supra, 962 F.2d at p. 1357.) The closure was also “narrowly tailored” to the specific circumstances. It applied only to three minors and even then, only as to a single witness. We conclude the exclusion was reasonable under the circumstances and that the partial closure did not violate appellant’s constitutional right to a public trial.
The trial court’s concern was well founded. Shortly after John began testifying, the court called a recess and met with the prosecutor and defense counsel privately. The court noted that John obviously was “struggling” and characterized the examination as “painful to watch.”
The conclusion we reach on this point is fully supported by California law. In People v. Esquibel (2008) 166 Cal.App.4th 539, 554, the court ruled the defendant’s constitutional rights were not violated when two spectators were excluded during the testimony of a single minor witness. As that court explained, “There was no order excluding the press or the public in general. Except for these two spectators, no one else connected with appellant was excluded from the courtroom and the exclusion was only during the testimony of the single witness. Members of appellant’s family remained in the courtroom. There was no showing that the excluded individuals had any special relationship to appellant or were needed to provide him support during trial.” (Ibid.)
As in Esquibel, we conclude the partial exclusion here did not violated appellant’s constitutional rights.
None of the arguments appellant advances convinces us the trial court erred. First, appellant notes that the persons excluded were relatives and he argues relatives are among those who would have a particularly strong interest in attending trial and assuring that the proceedings be fair. That might be true, but the record indicates other members of appellants family were allowed to remain in the courtroom and that they were not affected by the court’s ruling. We have no reason to believe that those other family members could not do whatever was necessary to assure the fairness of the proceedings.
According to the record, John’s grandmother, three uncles, an aunt, and three cousins were in court while he was testifying.
Next, appellant argues that his adolescent relatives should not have been excluded because they were not unduly young and they were there with the permission of their parents. Again, while that may be true, the fact remains that the excluded adolescents were younger than John and they were still quite young. We think the trial court reasonably could conclude that having John provide what plainly was embarrassing testimony in front of his younger relatives would be harmful to John.
Next, appellant notes that John was allowed to use a pseudonym to protect his identity and that he was allowed to have a support person sitting with him at the witness stand when he testified. Noting that the presence of a support person can affect the jury’s observation of a witness’s demeanor (People v. Adams (1993) 19 Cal.App.4th 412, 441), appellant argues that under these circumstances, “it was even more important that the counterbalancing safeguard of a public trial be more punctiliously assured.” The factors appellant cites could validly be considered by the court when making its ruling. However, none of those factors, either alone or in combination, compelled the conclusion that the adolescent spectators should have been allowed to remain. We conclude the trial court did not abuse its discretion even though a different conclusion might also have been reasonable. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Finally, appellant suggests the court’s ruling must be reversed because the court did not question John before deciding whether to exclude the adolescent spectators. He claims such questioning was required by People v. Baldwin (2006) 142 Cal.App.4th 1416, 1422. We reject this argument for several reasons. First, while the court did not question John specifically, it did conduct an inquiry into whether the adolescent spectators should be excluded. That inquiry was adequate under the circumstances. Second, the court in Baldwin was faced with a different issue: whether the trial court erred when it closed the courtroom to all spectators when the 14-year-old victim testified. (Id. at p. 1419.) We are not faced with a total closure here. Third, the Baldwin court itself recognized that courts are not required to conduct a hearing before closing the proceedings. (Id. at p. 1422.) Baldwin does not compel a different result.
We conclude the trial court did not err when it temporarily excluded the adolescent spectators in question.
B. Evidentiary Issues
1. Testimony from Miriam Wolf
Prior to trial, the prosecutor filed a motion asking that she be allowed to present testimony from Miriam Wolf on the topic of CSAAS. The defense opposed the motion, but the trial court granted it, ruling Wolf could testify about the various patterns exhibited by child victims of sexual abuse.
Shortly before Wolf took the stand at trial, the defense moved to prevent the prosecutor from asking Wolf about how frequently false accusations of molestation are made. The prosecutor replied that she did not intend to ask questions on that topic.
Wolf then testified about CSAAS. She stated that CSAAS is not a diagnosis, but a “framework for looking at children’s responses to child sexual abuse....” The syndrome is characterized by five types of behavior. The first is secrecy. Sexually abused children are likely to keep the abuse quiet for a long period of time. The second is helplessness. Because an abuser frequently is older and more powerful than the victim, the victim will not know how to respond. The third involves entrapment and accommodation. Children don’t always feel they can tell someone about the abuse, and when they don’t tell, they feel trapped. Their response is to try to live with the abuse as best they can. The fourth is delayed, conflicted, or unconvincing disclosure. The abuse may be disclosed piecemeal and over a long period of time. The fifth characteristic is it is not uncommon for victims of abuse to retract or recant allegations they have made.
Wolf made clear that she knew nothing about the case against appellant, how many victims were involved, or how old they were. She viewed her role as “an expert to come in and educate the trier of fact... as to some of the dynamics in child sexual abuse....”
Appellant now challenges Wolf’s testimony on two grounds. The first involves a line of inquiry that was developed during defense counsel’s cross-examination of Wolf. Under questioning, Wolf acknowledged that children sometimes make false accusations of sexual abuse and that it might be “equally plausible” that some of the patterns of CSAAS would be present in cases of false accusations. However, Wolf stated that the professional literature showed that “lies of omission” (i.e., where an abused child fails to disclose abuse) are more common than lies of commission (i.e., where a child makes a false accusation of abuse.)
After defense counsel finished his cross-examination, the prosecutor asked to approached the bench. The court asked whether it was “regarding the door?” The prosecutor said yes and she argued that defense counsel’s questions about the frequency of false accusations had “open[ed] the door” to further inquiry on that topic. The court agreed.
On redirect examination, the prosecutor asked Wolf whether false accusations were taken into consideration in the CSAAS framework. Wolf said false accusations are not part of the syndrome, but that the issue arises as part of her clinical practice. According to the literature she had reviewed, between 2 and 10 percent of child abuse allegations are false. On recross, Wolf acknowledged that the 2 to 10 percent figure was an “imperfect statistic.” She also acknowledged that one researcher had estimated that as many as 35 percent of accusations are false, and that false accusations are most frequently made by teenagers seeking to avoid punishment and very young children who have been manipulated by an adult.
Appellant now contends the trial court erred when it allowed Wolf to testify about how frequently false allegations of abuse are made. He argues that evidence was inadmissible under case law that holds CSAAS testimony cannot be admitted to prove that a sexual assault actually occurred. (See, e.g., People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) Appellant did not object on this ground in the court below so he has forfeited the right to raise the argument on appeal. (Evid. Code, § 353.) We also reject the argument on the merits. Wolf’s testimony on this point was unrelated to CSAAS. She could not have made this more clear. Wolf stated specifically, that false allegations abuse are “not in the syndrome....” Since Wolf’s testimony about how frequently false allegations of abuse are made was unrelated to her testimony about CSAAS, case law holding that CSAAS testimony cannot be used to prove guilt is irrelevant.
Appellant attempts to avoid this conclusion by arguing that Wolf’s testimony about the frequency of false allegations was inadmissible under case law that disapproves testimony that is based on certain types of mathematical analysis. However, the cases upon which appellant relies are distinguishable. Appellant relies first on People v. Collins (1968) 68 Cal.2d 319. There, an eyewitness to the crime had observed some characteristics of the perpetrators, such as they seemed to be a Caucasian woman with a blonde ponytail accompanied by an African-American man with a beard in a yellow automobile. (Id. at p. 321.) An expert witness, (a mathematics instructor) used these assertedly distinctive features to calculate that there was a 1 in 12 million chance that a couple other than the defendants could have met this description. (Id. at p. 325.) Our Supreme Court ruled the expert’s opinion should not have been admitted because the values he assigned to the individual components of his analysis lacked an evidentiary basis. (Id. at p. 327.) The court found the error prejudicial, because it distracted the jury from its task and encouraged jurors to rely upon “an engaging but logically irrelevant expert demonstration[.]” (Id. at p. 327.)
Here, Wolf did not try to calculate the probability that John’s allegation might be false based on independent variables that lacked foundation. Rather the testimony she provided was based on her review of the scientific literature. Collins is not controlling here.
We reach a similar conclusion about People v. Cella (1983) 139 Cal.App.3d 391, the other case upon which appellant relies. There, the defendant tried to invalidate a search with testimony from a mathematician who testified that there was only a 2 or 3 chance in 100, 000 that the names of certain corporations would appear on two different lists in the same order. (Id. at pp. 403-404.) The appellate court rejected the argument as follows: “There could be any number of reasons, not quantified by the mathematician, why 10 corporate names would appear twice in the same order. Our duty does not include speculation as to the quality of proof to be gained from misapplied statistics.” (Id. at p. 405, fn. omitted.) Again, here we are not faced with testimony from a mathematician who asserts an opinion based on mathematical probabilities. Rather we are addressing testimony from an expert witness based on her review of the scientific literature. Cella is not controlling.
We conclude the trial court did not err when it allowed Wolf to testify about how frequently false allegations of abuse are made.
Appellant’s second argument regarding Wolf’s testimony is based on a procedure that the court followed. The court allowed the jurors to submit questions that they would like a particular witness to answer. After vetting those questions with counsel, the court would then ask those questions that it deemed appropriate. Two of the questions posed to Wolf and her answers are at issue here. The relevant colloquy is as follows:
“Q. [The Court] Is it common for a child to say that they did not disclose sexual abuse sooner because they did not want to get their parent in trouble?”
“A. [Wolf] Yes. That is one of the reasons that we hear. Sometimes we ask kids directly ‘Who did you tell? How did you decide to tell?’ We don’t want to put blame on them for not telling, but we try to ascertain how come they told and when they told. And one of the common things they’ll tell us is they were worried about getting the person who’s accused in trouble.
“Q. [The Court] All right. Is it common for a child to disclose sexual abuse to a friend rather than law enforcement or other adults?
“A. [Wolf] Um, yes. It is very rare that the first disclosure is to a formal interviewer. Normally, cases come to the attention of law enforcement or child welfare because the child has said something to somebody else. And the statement to somebody else may be accidental, like they didn’t really kind of plan it, just a part of it leaked out and they told. Part of it may be that they look for a safe relationship in which to try to tell the first time. And so they tell in the realm of that safe relationship, which for some kids can be a school counselor, for some kids it can be a friend, and they tell a little bit. So it would not be uncommon at all that the disclosure would be to somebody other than a law enforcement officer.”
Appellant now contends the questions posed by the court, and Wolf’s answers violated case law that prohibits a CSAAS expert from “describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393.) Again, appellant did not raise this argument in the court below so he has forfeited the right to raise it on appeal. (Evid. Code, § 353.) We reject this argument on the merits because Wolf did not “describe[e] the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case....” Indeed, the court’s questions did not mention CSAAS and Wolf’s responses did not attempt to correlate any particular aspect of that syndrome. The distinction is important because although Wolf qualified as an expert witness on CSAAS, the parties did not limit her testimony to that syndrome. Wolf also explained that she performed forensic sex abuse interviews for the local district attorney’s office and she described some of the techniques that are used to interview the victims of child sexual abuse. Among other things, Wolf explained that an interviewer should investigate any possible inconsistencies in a child’s report, that interviews should be short, and that children should be asked questions that are developmentally appropriate. Given the breadth of Wolf’s testimony, it is not at all surprising that the jurors would ask her questions that were not specifically related to her testimony concerning CSAAS. We conclude the court did not err on this ground.
2. Testimony of Detective Elaine Briggs
Detective Elaine Briggs testified at appellant’s trial. She said she had conducted “[w]ell over a hundred” sexual assault investigations more than half of which involved children, and that she interviewed John at his school on November 7, 2007. John told her the molestations began when he was in first grade and was around 4 or 5. After Briggs acknowledged that children commonly begin first grade when they are six or seven years of age, the prosecutor asked Briggs about the inconsistency.
“Q. Okay. And did the fact that he said 1st grade but also said 4 or 5 concern you?
“A. No.
“Q. Why not?
“[Defense Counsel] Objection. Irrelevant.
“[The Court] Overruled.
“Q. [Prosecutor] Why not?
“A. Because children typically don’t remember specific dates and times, especially when traumatic things happen to them.
“Q. And has that been your experience in your investigations?
“A. Yes. I mean, I can recall traumatic events that happened in my life as a child, but I can’t give you specific dates and times of those events.”
Appellant now contends the trial court should have sustained the objection because Briggs’s testimony on this point “amounted to little more than an implied assessment that she, Briggs, based on her experience in interviewing children in sexual assault cases found John Doe credible.”
We disagree. Briggs did not offer an express or implied opinion about John’s credibility. She simply acknowledged an obvious discrepancy in the statement John provided explaining that based on her lengthy experience investigating sexual assaults, and child sexual assaults in particular, “children typically don’t remember specific dates and times, especially when traumatic things happen to them....” That testimony was relevant on the issue of John’s credibility and plainly was admissible on that basis. (Evid. Code, § 210.)
Evidence Code section 210 defines relevant evidence as “evidence, including evidence relevant to the credibility of a witness... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
Subsequently, defense counsel challenged Briggs’s testimony, getting her to admit inconsistencies with her testimony at the preliminary hearing, questioning why she did not follow-up on certain inconsistencies in the statements that John provided, and questioning her failure to follow certain leads or contact potential witnesses.
During redirect, apparently in an effort to rehabilitate Briggs, the prosecutor questioned her as follows:
“Q. What is the goal of your investigations?
“A. The goal is to determine if an allegation is true or false.
“Q. And when you go into an investigation, do you keep the possibility that it may be false in your mind?
“[Defense counsel] Objection. Calls for speculation. Irrelevant.
“[The Court] I’ll overrule.
“A. Yes. It’s just as important to free somebody that’s innocent of a crime than wrongly convict him.” (Italics added.)
Appellant now contends the trial court erred when the court admitted the testimony we have italicized arguing that Brigg’s motives when conducting an investigation were irrelevant.
Even if we were to assume appellant was correct on this point, we would not reverse. Brigg’s comments about her motivations were little more than a harmless platitude that could not under any circumstances affected the outcome of this case. Any possible error on this point was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
3. Testimony of Rachel Gaines
Appellant’s friend Rachel Gaines testified at trial. She stated that John was troubled by his father’s molestations and that one time he told her “it would just be better if I died because I’m already going to hell.” On another occasion, John pretended to hold a gun to his head, a motion that “really scared” Rachel. John also talked about committing suicide.
Shortly after the pretend gun incident, Rachel attended an assembly at school that was presented by an anti-suicide group. The organizers described the signs of abuse and depression and “every single thing they said was something that [John] and I had done and talked about or had happened to him.” Rachel was so upset by the similarities that she decided to disclose John’s secret.
After the prosecutor and defense counsel concluded their initial questioning of Rachel, the court asked several questions that were posed by the jurors. Three of those questions and Rachel’s responses are relevant here. They are as follows:
“Q. [The Court] Has John ever lied to you?
“A. Um, no, he’s never lied to me.
“Q. Next question: Do you still believe John’s abuse allegations are true?
“A. Yes.
[¶]...
“Q. You said that they gave the signs of depression at the assembly, and you recognized the signs in John.
“Which of those signs did you recognize?
“A. Um, they had, like, previous attempt of suicide, sexual abuse, upset, like things like that.”
Appellant now contends the trial court erred when it admitted the questions and answers we have set forth above.
The first question and answer clearly were proper. It is well settled that an individual who has known a witness for a reasonable amount of time may testify as to the witness’s character for honesty and veracity. (People v. Sergill (1982) 138 Cal.App.3d 34, 39; see also Evid. Code, § 780, subd. (e).)
It is debatable whether the second question and answer were proper. In People v. Melton (1988) 44 Cal.3d 713, 744 our Supreme Court held lay opinion about the veracity of the particular statements made by another witness is inadmissible. However, in People v. Padilla (1995) 11 Cal.4th 891, 946-947 (overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1), the court questioned whether this aspect of the Melton opinion remained viable. In any event, even more recently, our Supreme Court recognized that a lay witness’s opinion about another person’s veracity is unlikely to carry much weight with jurors. (See People v. Riggs (2008) 44 Cal.4th 248, 300-301.) Gaines made clear in her testimony that she liked John and that she believed him when he said he had been molested. It is inconceivable that Gaines’s acknowledgement of that fact could somehow have affected the outcome of the trial. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Appellant contends the third question and response were improper because they produced inadmissible hearsay, and improperly elicited expert opinion. We disagree. As the trial court stated, Gaines’s response was not hearsay because the facts were not admitted to prove they were true: i.e., that John talked of suicide, said he had been sexually abused, or that he was upset. Rather that response was admissible, as appellant acknowledges, to show the factors that motivated Rachel to act -- to break John’s confidence and reveal his secret. The trial court reasonably concluded Rachel’s testimony was relevant and admissible for that purpose. (Evid. Code, § 210.) Moreover, we disagree that the jury would consider Rachel’s response any more than lay testimony stating what signs described at the assembly she saw John exhibit. The court did not err.
C. Ineffective Assistance
After the jury returned its verdict finding appellant guilty, appellant’s trial attorney, Thomas Knutsen, was replaced by new counsel, Kenneth Kramer. Kramer then filed a motion for new trial based on ineffective assistance. The motion was supported by declarations and written statements from several of John’s family members.
An apparent relative named Joyce Lozano declared that one time John put soap in her drink and a knife to her neck and then lied about it. John also told her he could lie to the police and say his father had only done it once so they would let him go. Then his father could go to work to make money for him.
Milagros Bumanlag repeated the allegation that John had put a knife to Joyce’s neck and then lied about it. She also castigated John for allowing the shampoo and conditioner to leak out in the shower and putting wet tissue on the bathroom wall.
Someone named Mia Tia submitted an e-mail in which she relayed various misdeeds that John allegedly committed. Someone named Zeni Lozano declared that she heard John boast that “‘I can hurt you but you can’t hurt me. If you hurt me, I will call a cop on you.’”
Finally for present purposes, an apparent relative named Marlyn Garcia submitted a declaration in which she stated that John asked her to buy him clothes and let him stay the night. When Garcia replied that the attorneys had told him that would not be appropriate, John said he would simply lie to the district attorney. Garcia also relayed an incident where John asked appellant for money. When appellant refused John became upset and he stated, “One of these days, I will make [appellant’s employer] pay.”
At the hearing on appellant’s motion for new trial, Kramer called Knutsen as a witness. Knutsen stated that he personally had spoken to only two of appellant’s family members but that his investigator had spoken to several others. Kramer never asked Knutsen why he did not call other members of appellant’s family to question John’s credibility. However, Kramer did question Knutsen about why appellant did not testify on his own behalf at trial. Knutsen replied that appellant had made “a number of statements, admissions in his interview with law enforcement that I felt would be great fodder for the prosecution on cross-examination.”
The trial court considering this evidence denied appellant’s motion for new trial noting that appellant had aggressively presented the defense that new counsel was proposing: i.e., that John was a liar. The court noted that the jurors believed John despite the evidence that had been presented and that Knutsen’s tactical choices were “all very valid.”
Appellant now contends the trial court erred when it denied his motion for new trial based on ineffective assistance.
A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
The standard of review we must apply on appeal varies depending upon how the issue is presented. “Innumerable cases, both civil and criminal, have said that the trial court has broad discretion in ruling on a new trial motion, and that the ruling will be disturbed only for clear abuse of that discretion. [Citations.] But refinements to this general rule have developed.” (People v. Ault (2004) 33 Cal.4th 1250, 1260.) Cases distinguish between orders granting and orders denying a new trial. (Ibid.) We review the denial of a motion for a new trial de novo when claimed errors of constitutional magnitude, such as a claim of ineffective assistance of counsel, are at stake. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225 & fn. 7.) As the court explained in In re Alvernaz (1992) 2 Cal.4th 924, 944-945, “we undertake an independent review of the record [citation] to determine whether petitioner has established by a preponderance of substantial, credible evidence [citation] that his counsel’s performance was deficient and, if so, that petitioner suffered prejudice.”
Applying independent review, we conclude the trial court ruled correctly. The thrust of appellant’s motion was that trial counsel was ineffective because he failed to present evidence from John’s relatives that would demonstrate that John was a liar. However, as the trial court noted, trial counsel had followed that precise line of attack. He presented evidence from John’s own mother who described him as a liar who was defiant, disrespectful, rude and mean. Having challenged John’s credibility on the precise grounds asserted, we conclude trial counsel was not ineffective because he declined to present additional evidence on that some point.
Appellant acknowledges that trial counsel had already attempted to attack John’s credibility. However, he focuses on the declaration of Marlyn Garcia arguing it gave a more “mercenary” focus to John’s animus against his father. While Garcia did state that John was willing to lie about getting clothing he wanted, and that he threatened to get money from appellant’s employer, we fail to see how either point advances appellant’s position. Appellant presented evidence at trial in an attempt to show that John was a mean and disrespectful liar. The fact that John also allegedly was willing to lie to get things he wanted does not challenge John’s credibility in a meaningfully different way.
We conclude the trial court did not err on this ground.
III. DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Bruiniers, J.