Opinion
B162081.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CHAN, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Antonio Chan appeals from a judgment entered upon his conviction by jury of 16 counts of committing a lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a)), two counts of continuous sexual abuse (§ 288.5), 12 counts of sodomy on a child under 14 years of age by a person more than 10 years older (§ 286, subd. (c)(1)), six counts of oral copulation with a child under 14 years of age by a person more than 10 years older (§ 288a, subd. (c)(1)), and four counts of sexual penetration of a child under 14 years of age by a person more than 10 years older (§ 289, subd. (j)). The jury also found to be true as to all of the counts the allegation that appellant committed those offenses against more than one victim (§ 667.61, subd. (c)). The trial court sentenced appellant to an aggregate state prison term of 89 years to life. Appellant contends that (1) instructing the jury in accordance with CALJIC No. 2.20.1 violated his due process rights, (2) the trial court erred in admitting evidence, pursuant to Evidence Code sections 1101 and 1108, of his uncharged wrongful acts, (3) the trial court erred in excluding evidence of accusations of sexual misconduct made by his victims against other men, (4) the trial court erred in denying his motion to exclude a tape recording and transcript of a 911 call made by one of the victims, and (5) instructing the jury in accordance with CALJIC No. 2.50.01, without instructing in accordance with CALJIC No. 2.50.1, violated due process.
All further statutory references are to the Penal Code unless otherwise indicated.
At the request of the People in the furtherance of justice, the trial court dismissed counts 7 and 26, for continuing sexual abuse (§ 288.5).
We affirm.
FACTUAL BACKGROUND
Prosecutions case.
Appellant resided with his wife, Irma C., and stepchildren, Irmas son, and three daughters, Ashley, born in May 1990, Celia (Lisa), born in December 1992, and Jennifer, born in January 1995. The family lived on Martin Luther King, Jr. Boulevard (MLK), subsequently moving to Wilmington Boulevard. Appellants misconduct occurred in Los Angeles County.
Appellants sexual abuse of Lisa.
Lisa testified to an extended history, beginning when her family resided on MLK, of appellant "d[oing] something" to her that she did not like when no one else was at home. While not specifically recalling the first incident, she testified that whenever she was home alone with appellant, he did something to her. While residing on MLK, appellant had sex with Lisa in different rooms of their residence more than 15 times. He would place an inch of his penis inside of her, sometimes lubricating it and Lisas vagina with shampoo. Lisa testified that it would hurt, but she was too frightened to tell him. When she told him to stop, he told her to "shut up," covered her mouth so she could not scream and pinned her down so she could not escape. Lisa specifically recalled one occasion when she was cooking, and appellant turned her around, placed her in a corner and began having intercourse with her in the kitchen. She testified that he exposed his penis, but her clothing was not removed and his penis did not enter her vagina.
Appellant engaged in other sexual misconduct with Lisa when they resided on MLK. He sodomized her more than five times, placing his penis in her "bottom" about an inch. She described incidents in the bathroom, where he approached her from behind when she was washing, exposed his penis and "put it in [her] behind." He also came into her mothers room while Lisa was watching television and got on top of her. If he heard someone, he instructed her to pull up her pants. While she did not recall a specific occasion, she testified that appellant would enter her room where she was on the floor doing her homework and sodomized her. He also inserted his fingers in her rectum on more than three occasions, placed his mouth on Lisas vagina more than five times, although she did not recall a specific instance, and made Lisa put her mouth on his penis more than 10 times. After each of the latter occasions, Lisa went into the bathroom and threw up.
After moving to Wilmington Boulevard, appellant continued molesting Lisa, having sex with her more than 10 times, sodomizing her more than 10 times, forcing her to place her mouth on his penis more than five times, putting his fingers in her "bottom" more than five times and putting his mouth on her vagina "a few times."
Lisa never told her mother about appellants abuse because she was afraid. After speaking with her sisters about the abuse they suffered at appellants hands, she finally decided to report it. While she was aware that Ashley had also been abused by appellant, Lisa was surprised to learn the day before she called 911 that Jennifer had also been abused. She decided to call the police because Ashley was having her period, and Lisa feared she might become pregnant.
On her way home from school with two friends, Lisa stopped at a pay telephone, and one of her friends dialed 911 for her. Lisa spoke to the operator, giving her name, home address and location and reporting that appellant had been having sex with her and her sisters. When Lisa arrived home, appellant was waiting for her. After she went to her room he followed, leaving her door open. He sat on the bed, as Lisa lay on the floor, took off his shoe and stuck approximately an inch of his big toe in her buttocks, over the shorts she was wearing. She told him to stop, but he did not. She ran out of the room, and, as she did, the police arrived.
Appellants sexual abuse of Ashley.
Appellant also sexually abused Ashley when the family lived on MLK. The abuse began with an ambiguous incident during Christmas vacation. Appellants hand touched Ashleys buttocks and back. Because she was uncertain if he meant to do so, she said nothing to him.
On the next occasion, Ashley returned home from school and asked appellant if she could go outside to play. No one else was at home. Appellant told her to go to his room. He instructed her to lie down and moved "really close" to her, touching her in the middle of her buttocks with his "soft" penis, which was inside his pants, making her feel very uncomfortable. Appellant moved his penis around her buttocks and asked her if she liked it. She responded that she did not. Appellant placed his hand on her vagina over her clothing, and tried to place his hand through her belt, but could not because it was too tightly fitted.
The next incident occurred at Ashleys little sisters birthday, in January. Appellant told Ashley to go to his room. She thought he was going to apologize for previously making her feel uncomfortable. Instead he told her to lay down. He lay next to her, rubbing his penis, which was "a little hard," against her, and put his hand on her leg and moved it around her buttocks. They were clothed at the time. Appellant stopped when Irma came home.
In another incident, Ashley went to appellants room. He climbed on top of her, held her down with one hand and removed her clothing with the other. He took his penis from his pants, and placed it in her vagina, hurting her. Ashley told appellant to get off of her, but he initially ignored this request until she began to cry.
After this incident, appellant had intercourse with Ashley approximately five times when they resided on MLK, although Ashley did not specifically recall the other occasions. She did recall, however, appellant having sex with her in her room once, on that occasion, she was sleeping when he entered and got on top of her, waking her up.
Also, when they resided on MLK, appellant placed his finger in Ashleys rectum on one occasion, the specifics of which Ashley did not recall. He inserted a finger into Ashleys vagina on MLK, on five occasions. He also touched Ashleys breasts, on some occasions under her clothing, sometimes as he inserted his penis in her vagina and sometimes when he did not.
Just weeks after the family moved to Wilmington, appellant resumed his abuse of Ashley, although she could not testify to specific instances. He had sex with her more than six times and put his penis in her buttocks seven times. Sometimes he put his penis in her rectum.
Only once after moving to Wilmington did appellant insert his finger in her vagina. She did not recall in which room that occurred or if he also put his penis in her vagina on that occasion.
On MLK and Wilmington Boulevards collectively, appellant placed his mouth on Ashleys vagina a total of seven or eight times and on her breasts approximately three times. She recalled one specific occasion when no one was home and she wanted to play. Appellant told her that she could not and that she should go to her sisters room. He pushed her so she would lie down. When on her back, she felt his mouth on her vagina. Ashley did not tell her mother of appellants sexual abuse fearing her mother would become angry.
Both Jennifer and Lisa testified to having observed appellant sexually abusing Ashley. Jennifer saw appellant attempting to get on top of Ashley in Ashleys room and his back was moving back and forth. Ashley was trying to push him away. Jennifer did not mention to Ashley or her mother what she saw, but told Lisa about it. Lisa also became aware that appellant was molesting Ashley. On one occasion, she saw appellant enter Ashleys room. When Lisa passed the door to ask Ashley a question, appellant told her to go away, closed the door and blocked it with a chair. Lisa heard noises and Ashley say "stop, stop." When Lisa entered the room later, it smelled like appellants penis. On another occasion, Lisa saw Ashley lying on the couch under a blanket with appellant. She saw appellant and Ashleys buttocks moving. Neither was saying anything.
Appellants sexual abuse of Jennifer.
Appellant first sexually abused Jennifer near the time of her fifth birthday, when the family lived on Wilmington Boulevard. On that occasion, he called her into his room. He was wearing only a T-shirt and no underwear, and Jennifer saw his penis. She was frightened to enter the room, but appellant pulled her by the wrist. She tried to scream, but appellant threatened to kill Irma if Jennifer said anything. He told her to come next to him. When she said "no," he became angry. Appellants hard penis touched Jennifers vagina and her buttocks, and he inserted an inch of his penis into her "bottom" and a quarter of an inch into her vagina. She did not remember if it hurt. Afterwards, Jennifer bled from her rectum. Jennifer testified that she did not remember if appellant ever put his penis in her buttocks again, although she told the detective that he did it three or four times. He "scooted" her twice: pulling her towards him with her back facing him, then placing his penis in her vagina. She could not remember if appellant ever inserted his finger in her vagina and did not recall telling a detective that he did. Appellant never put his mouth on her body, and she never put her mouth on his. She could not remember if he ever touched her on her chest.
Physical examination of the girls.
On March 1, 2002, Sandra Elvik, a pediatric nurse, conducted a "non-acute," sexual assault examination of Jennifer and a complete examination of Ashley. She found no indication that either girl had been sexually abused. But Elvik testified that if an adult placed part of his penis inside a six to seven year old girl, she would not necessarily expect to find physical evidence because children do not understand the difference between placing the penis inside of the large lips of the vagina and in the vaginal canal. Even if a penis was placed all the way into the canal, a delay in discovery of the abuse might prevent revelation of the abuse because young children heal quickly. For similar reasons, she would not be surprised to find no evidence of anal intercourse. A girls hymen going through puberty becomes very elastic and might not evidence intercourse. But if a penis had been placed inside of the vaginal canal, she would have expected to see trauma.
Defenses case.
Appellant took the stand in his defense. He testified that he lived with Irma since 1996, before they were married, but was in prison in 1997 and deported for a probation violation. In 1998, he returned to live with Irma. He got along with his stepdaughters. On direct examination, he testified that he was never alone with the girls as he was working, and Irma was on welfare and always at home. Although she went to school, she attended only from 8:00 a.m. to 11:00 a.m. and returned home before the children were out of school. He denied ever touching his stepdaughters or their friend Monica C.
On cross-examination, appellant admitted that he only worked for a temporary agency, and, because he could not obtain working papers, could not work steadily, often staying home. He also admitted that in the previous year, Irma attended school from 4:30 p.m. to 10:30 p.m. He claimed his stepdaughters were angry with him because he and Irma used cocaine, and the girls did not want to go back into foster care.
Dr. Earl Fuller testified for the defense. He reviewed the records of appellants stepdaughters and testified that prepubescent girls do not have estrogen and thus their tissues are inelastic and cannot easily accommodate a penis or a finger without tearing.
DISCUSSION
I. CALJIC No. 2.20.1 is constitutional.
The jury was instructed, both before opening statements and before closing arguments, regarding the factors it could consider in evaluating the credibility of witnesses, in accordance with CALJIC No. 2.20. After the second reading of CALJIC No. 2.20 to the jury, the trial court instructed in accordance with CALJIC No. 2.20.1, as follows: "In evaluating the testimony of a child ten years of age or younger you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] `Cognitive means the childs ability to perceive, to understand, to remember and to communicate any matter about which the child has knowledge."
CALJIC No. 2.20, as given, stated: "Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. [¶] In determining the believability of a witness you may consider anything that has a tendency to prove or to disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: [¶] The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified; [¶] The ability of the witness to remember or to communicate any matter about which the witness testified; [¶] The character and quality of that testimony; [¶] The demeanor and manner of the witness while testifying; [¶] The existence or nonexistence of a bias, interest, or other motive; [¶] The existence or nonexistence of any fact testified to by the witness; [¶] The attitude of the witness toward this action or toward the giving of testimony; [¶] A statement previously made by the witness that is either consistent or inconsistent with his or her testimony."
Appellant contends that CALJIC No. 2.20.1 violated his constitutional rights to a jury trial and due process in that it "invaded the jurys province and unfairly bolstered the sisters credibility by telling the jury not to consider a child witnesss level of cognitive development — her inability to perceive, understand, remember, or communicate — as indications she was not believable, though such factors are certainly relevant to assessing any other witnesss credibility." He also argues that it violated his rights to present a defense and confront the witnesses against him by "unfairly impairing his ability to impeach the girls credibility based on their inability to perceive, understand, remember, and communicate."
At the outset, the People argue that defendant has waived his challenges to CALJIC No. 2.20.1, having failed to object to it at trial. We reject this contention, finding that the constitutional rights appellant asserts are substantial and have not therefore been waived. (§ 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; see also People v. Van Winkle (1999) 75 Cal.App.4th 133, 139-140.) We thus turn to the merits of appellants claim which we independently review. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)
In 1986, the Legislature enacted section 1127f, which provides: "In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury as follows: [¶] In evaluating the testimony of a child you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child." This statute was apparently adopted to dispel long-held myths that childrens testimony was inherently less credible than testimony of adults. (See People v. Jones (1990) 51 Cal.3d 294, 315.) CALJIC No. 2.20.1 embodies the mandated language of section 1127f.
The language of CALJIC No. 2.20.1 does not support appellants arguments. Directly contrary to his assertion that it instructs the jury not to consider a childs level of cognitive development in assessing the childs credibility, it states explicitly that the jury is to evaluate childrens credibility by "consider[ing] all of the factors surrounding the childs testimony including the age of the child and any evidence regarding the childs level of cognitive development." The second sentence of CALJIC No. 2.20.1 simply cautions that in evaluating a childs credibility, the childs performance on the witness stand may differ from that of an adult because of the level of cognitive development, but that does not mean the child is any "more or less" believable. (People v. Jones (1992) 10 Cal.App.4th 1566, 1573-1574.) The third sentence explains the thrust of the instruction; that a childs testimony should not be discounted simply because he or she is a child. No reasonable juror is likely to give CALJIC No. 2.20.1, read as a whole, the interpretation appellant suggests.
As stated in People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393: "[CALJIC No. 2.20.1] tells the jury not to make its credibility determinations solely on the basis of the childs `age and level of cognitive development, but at the same time invites the jury to take these and all other factors surrounding the childs testimony into account. The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom `"traditional assumptions" may previously have biased the fact finding process."
Other appellate courts have rejected objections to CALJIC No. 2.20.1 virtually identical to those appellant asserts. (See People v. Jones, supra, 10 Cal.App.4th at pp. 1572-1574 [rejecting challenge that CALJIC No. 2.20.1 invades jury function of assessing witnesses credibility]; People v. Gilbert, supra, 5 Cal.App.4th at p. 1393 [rejecting challenge that CALJIC No. 2.20.1 inflates childrens testimony and decreases the governments burden]; People v. Harlan (1990) 222 Cal.App.3d 439, 456 [rejecting challenge that CALJIC No. 2.50.1 undermines impeachment and impairs the right to confrontation].) Moreover, in rejecting a claim of ineffective assistance of counsel for failing to request an instruction in accordance with section 1127f, our Supreme Court in People v. Dennis (1998) 17 Cal.4th 468, 527, stated: "The section 1127f instruction informs a jury that a child may `perform differently as a witness from an adult due to the childs cognitive development level, that a child is not any more or less credible than an adult, and that a childs testimony should not automatically be discounted or distrusted." The Supreme Court did not interpret CALJIC No. 2.20.01 as does appellant.
Even if we were to conclude that CALJIC No. 2.20.1 is technically defective and should not have been given, that error was harmless as it is not reasonably probable that a more favorable verdict would have been reached had that instruction not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) In reviewing any claim of instructional error, the court of appeal must consider the jury instructions as whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire record. (K. G. v. County of Riverside (2003) 106 Cal.App.4th 1374, 1379.) CALJIC No. 2.20.1 must be read in conjunction with CALJIC No. 2.20, which clearly indicates the factors to be considered in properly evaluating the credibility of any witness.
II. The trial court did not abuse its discretion in admitting evidence of appellants uncharged wrongful acts.
Monica C., a friend of appellants stepdaughters, testified that she was playing with Lisa and Ashley at their house, when appellant asked his stepdaughters to leave, blocked the door so Monica could not, and touched her on her buttocks.
Appellant objected to the admission of this testimony based upon Evidence Code section 352. The trial court overruled the objection, concluding that the prejudice did not outweigh the probative value. It believed that unlike appellants stepdaughters, Monica had less reason to lie. It found Monicas testimony no more inflammatory than the charges before the jury and relevant to appellants intent.
Appellant contends that the trial court erred in allowing Monica to testify because her testimony was irrelevant pursuant to Evidence Code section 1101, subdivision (b), on any contested issue, was irrelevant under Evidence Code section 1108, and its prejudice outweighed its probative value pursuant to Evidence Code section 352. This contention is without merit.
The general rule against evidence of criminal propensity, as embodied in Evidence Code section 1101, subdivision (a), is a long-standing one (People v. Falsetta (1999) 21 Cal.4th 903, 913), designed to insure that a defendant is convicted for what he has done, not for who he is. In the mid 1990s, the Legislature carved out exceptions to this general rule for defendants charged with sex offenses (Evid. Code, § 1108) and with acts of domestic violence (Evid. Code, § 1109). In each case, other similar misconduct was made admissible because of the critical need for this evidence "`given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial." (People v. Falsetta, at p. 911.)
However, both the Legislature and the courts have been mindful of the potency of such evidence and risk that a jury might be tempted to convict a defendant for his past conduct although his current charges have not been proven beyond a reasonable doubt, thereby implicating due process. (People v. Falsetta, supra, 21 Cal.App.4th at pp. 916, 918.) To guard against this risk, the Legislature made admission of evidence of other misconduct permissible only if it "is not inadmissible pursuant to section 352" (Evid. Code, §§ 1108, subd. (a), 1109, subd. (a)(1)), and the courts have determined that, at least in part, Evidence Code sections 1108 and 1109 are saved from due process defects because "section 352 affords defendants a realistic safeguard in cases falling under section 1108." (People v. Falsetta, supra, at pp. 917-918.)
Both Evidence Code sections 1108 and 1109 have been upheld as against due process challenges. (See People v. Falsetta, supra, 21 Cal.4th at p. 922 [Evid. Code, § 1108; People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 [Evid. Code, § 1109].)
Evidence Code section 352 provides: "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." "Review of a trial court decision pursuant to Evidence Code section 352 is subject to abuse of discretion analysis. [Citations.] `The weighing process under section 352 depends upon the trial courts consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. . . . [Citation.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) "[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Abuse occurs when the trial court "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.) "`[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded." (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
In considering whether the probative value of uncharged crimes is outweighed by the prejudice, we must evaluate the inflammatory nature of that evidence, the probability of confusion, consumption of time, remoteness as well as other unique factors presented. (People v. Harris (1998) 60 Cal.App.4th 727, 738-740; see also People v. Falsetta, supra, 21 Cal.4th at p. 917.)
We cannot say that the trial court abused its discretion here. The evidence regarding appellants conduct towards Monica did not unduly consume the courts time, occupying a mere 15 pages of the trial transcript. The incident occurred during the same time period as appellants sexual abuse of his stepdaughters. It was far less inflammatory than the charged offenses, as appellant did not engage in intercourse or other explicit sexual acts with Monica, but only momentarily touched her fully clothed buttocks. Moreover, Monicas testimony was particularly trenchant, as she did not have the same motive to lie as did appellants stepdaughters. Therefore, on the question of the appellants disposition to molest little girls, the trial court did not abuse its discretion by finding that the probative value of Monicas testimony outweighed its prejudice.
Although the trial court did not purport to justify admission of the evidence as relevant to appellants disposition to commit the charged offenses, but instead as evidence of intent, so long as the trial courts ruling can be sustained on any ground, we must do so. "We affirm the ruling if it is correct on any ground, regardless of the trial courts stated reasons. [Citation.]" (Rancho Viejo v. Tres Amigos Viejos (2002) 100 Cal.App.4th 550, 558.)
III. The trial court did not err in excluding evidence of the victims accusations of sexual abuse against men other than appellant.
Appellant sought to cross-examine Ashley about accusations of sexual misconduct she allegedly made against other men. He had information that a friend of his was being investigated for molesting appellants stepdaughters. The prosecution objected on relevance grounds because "[t]heres no evidence whatsoever that those charges were false or they made up or fabricated anything. Unless he has some type of offer of proof that they did, then I would object on the grounds of relevance." The trial court inquired of appellants counsel: "So you just want to bring out that theyve made allegations of molestation against somebody else? [¶] [DEFENSE COUNSEL]: Multiple parties. [¶] [THE COURT]: Well, without something more than that, just the mere fact that they made such an allegation, I dont see that thats relevant. There has to be something more to it than just that."
Appellant contends that the trial court erred in refusing to allow cross-examination regarding accusations of sexual abuse by appellants stepdaughters against others. He argues that that evidence was relevant to the credibility of appellants stepdaughters and admissible under Evidence Code section 1103 and that precluding that cross-examination deprived him of his right to present a defense under the Sixth Amendment to the United States Constitution and due process.
Respondent asserts that appellant waived his constitutional claims by failing to assert them in the trial court. As discussed in Part I of this opinion, the constitutional claims appellant asserts here, exclusion of cross-examination of his accusers going to the heart of their credibility, are substantial. We thus conclude that appellants challenge to the restriction on his cross-examination presents a substantial question that has not been waived. (§ 1259.) We therefore turn to the merits of appellants claim.
Evidence Code section 1103 provides: "(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)." Under this section, evidence that the victim of an alleged sexual offense has made previous false accusations of such conduct against others is admissible as it is relevant to the credibility of the witness. (People v. Franklin (1994) 25 Cal.App.4th 328, 335; People v. Adams (1988) 198 Cal.App.3d 10, 18.)
If appellants stepdaughters had made false sexual abuse accusations against others, those accusations would be relevant to their credibility. However, true accusations of such abuse would not. Appellants offer of proof only suggested that accusations had been made, not that they were false. The record suggests that at least one of the other accusations was the subject of an ongoing investigation. Permitting evidence of accusations about other men, with no evidence of their falsity might require protracted trial testimony to allow the jury to evaluate their veracity and create a substantial risk that the jury would confuse the mere making of accusations against different people, with making of false accusations. In light of these facts, we cannot conclude that the trial court abused its discretion in excluding the cross-examination.
IV. The trial court did not abuse its discretion in denying appellants motion to exclude 911 tape recording and transcript.
On the way home from school with two friends, Lisa reported appellants molestation to a 911 operator. A tape recording of that call reflected that Lisa reported that "there was something I havent told my parents. I mean my mom. That I know my dad is doing this with my sisters and me. Hes having it with us. [¶] [OPERATOR]: Hes doing what? [¶] LISA: Sex with us." After Lisa gave the operator her identifying information, the operator told her to wait there for the police. Instead, Lisa went home.
Appellant moved in limine to exclude the recording and transcript, arguing that only a portion related to what Lisa personally knew, the remainder being hearsay of what her sisters told her. He argued that the recording was admissible only as to what Lisa personally observed. The prosecutor responded that she could lay a foundation that Lisa personally observed appellant engage in sexual behavior with Ashley and spoke with Jennifer the day before the telephone call as to what appellant did to her, and in any event, the conversation was admissible as a spontaneous utterance or within the "fresh complaint" doctrine. She also argued that the conversation was not being admitted for the truth of the matter asserted, and was therefore admissible with a limiting instruction to show Lisas "learning of these things and . . . causing the subsequent action of [her] making the 911 call to explain the declarants subsequent conduct which is a hearsay exception." While the trial court did not believe that the evidence was admissible as a fresh complaint to the extent it pertained to what happened to Lisas siblings, it apparently accepted the argument that it was not hearsay, admonishing the jury: "Theres some statements from the witness that are in the tape that are being admitted not for the truth of the matter, but to explain her state of mind. Theres some comments where shes referring to the fact that certain things have happened to all three sisters or have happened to all of them. And by law, she can only testify to the truth of something she actually witnessed herself, not based on something that may have been told to her or something she may have concluded based on things she might have observed. [¶] So it was nonetheless relevant I thought to show her state of mind in calling the police, why she called the police at the time that she did. But you are instructed you are not to consider the contents of the tape that refers to things having happened to other sisters for the truth of the matter, but to explain her reasons for contacting the police at the time that she did."
In addition to the hearsay objection he made in the trial court, appellant presents an additional contention on appeal. He argues that the trial court erred in allowing into evidence any portion of the 911 tape recording and transcript because it did not weigh the evidence as required by Evidence Code section 352.
The People rightly point out that appellant never objected to admission of the 911 tape recording on Evidence Code section 352 grounds in the trial court and contend that appellant has thus waived that claim. We agree. A judgment cannot be reversed because of the erroneous admission of evidence unless an objection or motion to exclude it was timely made in the trial court, clearly specifying the grounds of the motion. (Evid. Code, § 353; People v. Derello (1989) 211 Cal.App.3d 414, 428 ["A prerequisite to raising an issue for appellate review is an objection in the trial court thus preserving the issue for the appeal court. . . . The rule also requires the objection be made on the same grounds urged on appeal. [Citation.]"].) Appellant objected in the trial court exclusively on hearsay grounds and did not raise or preserve for appeal any objection based on Evidence Code section 352.
Appellants argument that the evidence was improperly admitted because it contained inadmissible hearsay is met by respondent who states that it was admissible because (1) it was not offered for the truth of the matter asserted, but to explain the reasons for Lisas 911 call, (2) it was within the spontaneous declaration exception to the hearsay rule, and (3) it was within the fresh complaint doctrine. As we conclude that the recording was not admitted for the truth of the matter asserted, and the jury was so instructed, we need not consider the other asserted justifications for its admission.
The tape recording explained that Lisa called 911 to report sexual abuse by appellant of her and her sisters, and for that purpose, was not hearsay and was admissible. The instruction given by the trial court made clear its non hearsay purpose. The recording did not go into detail as to that abuse. In fact, only a few sentences of the conversation related to appellants misconduct, the balance only dealing with identifying information.
Even if we were to conclude that the tape recording and transcript were erroneously admitted in evidence, we would nonetheless find it to be harmless in that it is not probable that a more favorable result to appellant would have been obtained had the report not been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) The recording was not prejudicial. It did not contain a lurid description of the sexual incidents but only indicated in general terms in a sentence or two that appellant was having sex with Lisa and her sisters. This was merely duplicative of evidence of that conduct introduced by the testimony of each of the three girls in far more glaring detail. Most of the tape recording contained information identifying Lisa, and appellant as the perpetrator, and their locations. Additionally, the trial court gave a limiting instruction, advising the jury that the recording was admitted and could be considered by it only with regard to the reasons Lisa telephoned 911, not for the truth of what happened to her sisters.
V. Instructing in accordance with CALJIC No. 2.50.01, without giving CALJIC No. 2.50.1 did not violate due process.
The trial court instructed the jury in accordance with CALJIC No. 2.50.01, as follows: "Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case. [¶] `Sexual offense means a crime under the laws of the state or of the United States that involves any of the following: [¶] A. Any conduct made criminal by Penal Code Section 288a, 286(c)(1), and 288a(c)(1). The elements of these crimes are set forth elsewhere in these instructions. [¶] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt, that he committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide. [¶] Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
The jury was not instructed in accordance with CALJIC No. 2.50.1, which provides: "Within the meaning of the preceding instruction[s], the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed [a] [crime[s]] [or] [sexual offense[s]] other than [that] [those] for which [he] [she] is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other [crime[s] [or] [sexual offense[s]]. [¶] [If you find other crime[s] were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged [or any included crime] in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime."
Appellant contends that giving CALJIC No. 2.50.01 without giving CALJIC No. 2.50.1 lowered the burden on the prosecution to prove each element beyond a reasonable doubt. He argues that CALJIC No. 2.50.01 allows the jury, if it finds the prior offense to be true by a preponderance of the evidence, to convict the defendant if there is any evidence of the current offense. Further, he argues, that if the jury finds the prior conduct true beyond a reasonable doubt, it may infer the defendants guilt of the current charge without regard to the evidence of the current offense. Finally, he argues that the failure to instruct in accordance with CALJIC No. 2.50.1 allowed the jury to consider the evidence regardless of whether it met the burden of proof. These contentions are without merit.
Appellants arguments have been rejected by the California Supreme Court in its recent decision of People v. Reliford (2003) 29 Cal.4th 1007, which found that "the 1999 version of CALJIC No. 2.50.01 correctly states the law." (Id. at p. 1009.) While the court was not directly called upon to determine whether the failure to also instruct in accordance with CALJIC No. 2.50.1 somehow made CALJIC No. 2.50.01 constitutionally infirm, it implicitly decided that question by finding that CALJIC No. 2.50.01 correctly states the law. Furthermore, there is no obligation to give CALJIC No. 2.50.1 without a request, which appellant did not make. (People v. Simon (1986) 184 Cal.App.3d 125, 134.) Given the Supreme Courts unequivocal approval of the constitutionality of the 1999 version of CALJIC No. 2.50.01, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J., DOI TODD, J.