Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. INF055999, Harold W. Hopp, Judge.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Dennis Paul Decker of molesting his stepdaughter, Vanessa. Specifically, the jury found him guilty of four counts of rape of a child (Pen. Code, § 269, subd. (a)(1)), two counts of sexual penetration of a child (§ 269, subd. (a)(5)), one count of lewd acts with a child (§ 288, subd. (a)), three counts of forcible sexual penetration (§ 289, subd. (a)(1)), and four counts of forcible rape (§ 261, subd. (a)(2)). The court sentenced defendant to a total term of 134 years to life, consisting of eight consecutive determinate terms (totaling 44 years) plus six consecutive indeterminate terms of 15 years to life (totaling 90 years to life). On appeal defendant contends the court erred by excluding from evidence letters between Vanessa and two corroborating witnesses and by restricting his cross-examination concerning the letters. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
The jury acquitted defendant of one count and failed to reach a verdict on five counts. Four of these counts involved a victim named Angel.
FACTS
Under the usual rules of appellate review, we recite the facts in the light most favorable to the judgment, and which bear most closely on the claimed evidentiary error. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Vanessa’s Account of the Molestations
During most of the molestations, Vanessa lived with her whole family -Chris (her half-brother), Lisa (the children’s mother and defendant’s then wife), and defendant. At the time of trial, Vanessa was 18 years old. Defendant is Chris’s natural father and has been Vanessa’s stepfather since she was a baby.
The molestations began when Vanessa was seven or eight years old, a time when the family lived on Mountain View. At that time, defendant “tried to put his penis in [Vanessa’s] vagina, ” but said she was “too tight, ” and therefore put his fingers in her vagina “to loosen [her] up.” Over the next five years, defendant could not force his penis into Vanessa’s vagina. Instead, “every couple months” he digitally raped and orally copulated her and made her masturbate him. When Vanessa was 11 or 12 years old, defendant had intercourse with her. She resisted, but he warned her not “to tell anyone because [her] mom would get mad, ” he would go to jail, and Vanessa would lose everything that [she] had, ” including their house.
Child Protective Services (CPS) interviewed Vanessa at the Mountain View house in response to a report that “Vanessa and [defendant] were showering together.” Vanessa did not reveal that defendant was molesting her because she “didn’t want him to go to jail” and didn’t want to “lose everything that [she] had.” CPS concluded the allegation was “unfounded.”
When Vanessa was 11 or 12 years old, the family moved to a home on Avenida Alta Loma, where they lived for one year. There, defendant forced Vanessa to have intercourse with him “two or three times a month.” He raped her in the laundry room “at least eight times, ” on one occasion “up against the garage door, ” another time “on the ground.”
Another molestation took place in Vanessa’s bedroom when she was between 11 and 13 years old. Defendant took off Vanessa’s pants and shirt, “inserted his penis in [her] vagina, ” “moved in and out, ” then “pulled out and ejaculated on [her] stomach.” Vanessa wiped off the semen, then “went out to play with [her] brother outside on [their] bikes.” Sweating, she pulled up her shirt and smelled a “distinct” odor on her stomach.
Another time, defendant “was taking a shower” in the “master bathroom, ” when Vanessa “went in there to grab something.” Defendant “brought [her] in the shower, ” although she had said no, and rubbed her breasts and vagina. The sexual activity stopped when Chris knocked on the bathroom door.
Defendant continued to warn Vanessa not to tell anyone.
The family then moved to West Street, where they lived for one year while defendant was attending the police academy. Defendant digitally penetrated Vanessa twice during that year, once in his bedroom and once in her bedroom.
When Vanessa was 13 or 14 years old, the family moved to a home on El Rio. Defendant raped Vanessa there at least once a month, and also digitally penetrated her twice.
CPS investigators interviewed Vanessa at the El Rio home in response to reports from other students that Vanessa was cutting herself. Defendant sat next to her during the interview. Vanessa claimed she was cutting herself because her friends “were doing it, ” and defendant confirmed the explanation. CPS concluded the report of abuse was “unfounded.”
After the CPS investigators left, defendant asked Vanessa why she was cutting herself. She “didn’t really give a good answer, ” so he became angry and shoved her. He threatened that if she told CPS that “something was going on, ” he would tell Lisa (her mother) that he had found “a Bacardi bottle, a razor blade, and some marijuana” in Vanessa’s room. Vanessa threatened to tell Lisa about the sexual abuse. Defendant “hugged [Vanessa] and said he was sorry.”
When Vanessa was between ages 15 and 17, the family lived in a house on Estrella. Defendant raped her there at least 20 times. Vanessa would try to avoid intercourse with him by pulling away or saying, “I’m watching TV, leave me alone or I’m trying to sleep or I’m on the phone.” Defendant continued unabated. One night, when her bedroom door was closed, he came in and asked if she was awake. With her eyes closed, she pretended to be asleep. He lay next to her, rubbed her legs and breasts, and “tried pulling [her] on top of him.” She still feigned sleep. He “got on top of” her and had intercourse. She did not move as she continued to feign sleep, so he picked her up and rolled her on top of him. “He grabbed [her] hips and moved [her] up and down.” “He got frustrated because [she] wasn’t doing anything, then he rolled [her] back over, and he continued moving up and down on top of” her.
Once again, CPS visited the house, but Vanessa did not tell them that defendant was molesting her because she did not want him to go to jail and did not want to “lose everything that [she] had.”
The last rape took place at a condominium in Marina Del Rey, where defendant was staying. Vanessa, Chris, and Chris’s girlfriend, spent a weekend (two nights) there. At the time, Vanessa was 17. On Friday night, defendant told Chris and his girlfriend to sleep in the living room. Vanessa fell asleep in the living room, but defendant “woke [her] up and told [her] to go to bed.” Vanessa pretended to be asleep, but defendant had intercourse with her and digitally penetrated her vagina. Vanessa recalled that someone came in and used the bathroom once. The next day, Vanessa started her period. She voluntarily slept in the bed Saturday night.
Vanessa’s Disclosure of the Abuse to Ryan, Heather, and Chelene
At the time of trial, Ryan was 16 years old. He had met both Vanessa and defendant in the police explorers program. Defendant was the program’s advisor.
The police explorers program allows youth to shadow police officers and learn about the profession.
Vanessa told Ryan that defendant had raped her “numerous times since she was seven” years old. In September 2006, Angel (a 13-year-old girl in the police explorers program) told Ryan that defendant “was sending her inappropriate e-mails and text messages.” Angel became “teary eyed [and] started crying, ” so they showed the Explorers’ assistant advisor the four or five e-mails, which “shocked” the advisor. Ryan disclosed that Vanessa was “another possible victim.”
Defense counsel cross-examined Ryan at length about his relationship with Vanessa. When Ryan was around 13 years old and in eighth or ninth grade, he dated Vanessa, but not in a “serious intimate relationship.” Ryan’s relationship with Vanessa was “off and on” for a couple of years. Defense counsel showed Ryan about 10 letters he had written Vanessa between May 2005 and March 2006. In the first letter, written when Ryan was in eighth grade, he told Vanessa he “would be a good boyfriend and [some] nice things about her and her characteristics.” In one letter he mentioned “a rumor about how she wanted to break it off” and wrote “‘I love you’ about ten times on the back.” Another letter mentioned they were going to homecoming together. Many letters concluded with, “Love Ryan, ” and/or stated, “I love you.” At the time of trial, Ryan had no “personal friendship feelings” for Vanessa because they did not “see each other enough to” have such feelings.
When Vanessa was 14 or 15, she told her friend, Heather Peterson, that defendant “had been molesting her and raping her since she was eight” years old. After that first disclosure, Vanessa told Heather “just about every time it happened.” Vanessa would call Heather “within a couple of hours” after it happened, and would be upset, crying, and feeling sick, “like throwing up.” Heather suggested that Vanessa “tell someone about it, ” but Vanessa did not “want to break up her family” and “was scared that people wouldn’t believe her.” Heather received more than 20 reports from Vanessa. Heather never saw defendant act sexually inappropriately with Vanessa.
At the time of trial, Heather had known Vanessa for three years. Defense counsel cross-examined Heather at length about her relationship with Vanessa. They “became a couple” in May 2005 and dated for two years, although they “continuously broke up and got back together.” The girls loved each other and exchanged love letters. Heather confirmed that in at least four letters, she told Vanessa she loved her; Heather confirmed that a remaining “stack of letters” consisted of “love letters.” Heather knew that Vanessa had a relationship with Ryan during a time when Heather and Vanessa had broken up.
During cross-examination, Vanessa confirmed she had been “really in love with Heather.” She had been “obsessed” with Heather and once expressed she would “die” for her. Defense counsel asked Vanessa if she recognized some letters Ryan had written her. She testified she did. She stated she and Ryan had “dated twice back and forth, ” and she had had “strong feelings” for him. Vanessa affirmed she had sometimes dated Heather and Ryan at the same time. Vanessa had told an investigator that she is bisexual.
In June 2004, Vanessa’s mother, Lisa, had found a letter from Heather to Vanessa that enraged Lisa. Lisa and defendant hit Vanessa and prohibited her from talking with Heather. Lisa also phoned Heather and told her not to contact Vanessa again. But the girls continued to secretly see each other. Defense counsel asked Vanessa whether she “would have done just about anything to maintain that relationship.” Vanessa replied, “Somewhat, yes.”
Vanessa and Heather ended their relationship in March 2006. In June 2006, Heather gave birth to twins. At the time of trial, Vanessa and Heather had not had a close relationship with each other for about a year. By then, Vanessa was living with Nicole, with whom Vanessa had a “strong relationship”; Vanessa had said “she would die for Nicole.” She had the same kind of feelings for Nicole as she had had for Heather, only “[s]tronger.”
Chelene has been Vanessa’s best friend since eighth grade. Chelene had received numerous phone calls from Vanessa, who would say, while crying, that defendant had raped her. Chelene could not “even count how many times. It’s ridiculous. It would happen all the time.” Together, Vanessa and Chelene devised a plan for Vanessa to try to avoid the molestations: whenever defendant tried to approach Vanessa, Vanessa would phone Chelene and act like they were “having a regular conversation.” Vanessa was afraid to report the abuse because she feared defendant “would go to jail and... her family would be torn apart.”
Chelene denied ever having an “intimate friendship” with Vanessa. Chelene knew about Vanessa’s relationships with Heather and Ryan.
Pretext Call Between Ryan and Vanessa
A district attorney’s investigator, Thomas Reid, interviewed Angel about the e-mail messages defendant had sent her. Angel told Reid that Ryan had said defendant raped Vanessa. Reid then interviewed Ryan, who warned Reid that Vanessa would not “disclose [the molestations] to law enforcement... because she’s not ready because she’s afraid of what will happen.” Reid asked Ryan to make a pretext phone call to Vanessa so that the information could be used “to confront Vanessa.”
The jury heard a recording of the pretext call. Vanessa told Ryan about visiting defendant with her brother and Charlene. Ryan asked whether she had had sex with her “dad.” Vanessa responded, “Well not voluntarily no.” Ryan pressed Vanessa, asking whether “he forcefully did it to you.” Vanessa responded, “Well yeah it wasn’t voluntarily.” Ryan urged Vanessa to “tell someone, ” but Vanessa said “I am not going to tell anybody... not until I am a lot older....”
Interview of Vanessa
On the day after Ryan’s pretext phone call, another district attorney’s investigator, Patti Phoenix, interviewed Vanessa. (An audio recording of the interview was played for the jury.) Phoenix introduced herself to Vanessa as a sexual abuse investigator and said she had received information “about some inappropriate behavior between” Vanessa and defendant. Vanessa at first continued to deny inappropriate behavior, but acknowledged that if something inappropriate had happened, she would be afraid of the family breaking up and not having enough money. “Mom’s income, her income wouldn’t pay for this house payment, ... insurance..., [t]here’s no way.”
After an extensive period of questioning during which Vanessa did not disclose any inappropriate behavior by defendant, Phoenix informed Vanessa that her mother had been phoned, was “supportive” of her, and was “coming right now.” Immediately, Lisa arrived at the house. Lisa told Vanessa “whatever is happening... I have to know because I need to protect you.” Vanessa continued to deny anything had happened, but ultimately told Phoenix that defendant had intercourse with her in Marina del Rey, that the abuse started when she was seven to 10 years old, that defendant had intercourse with her at least 30 times, and that defendant told her not to tell anyone because it would ruin the family and he would go to jail and they would not be able to live without him.
At Phoenix’s request, Vanessa agreed to make a pretext phone call to defendant. Vanessa then changed her mind and left the room to go talk with Lisa. When Vanessa returned, she “was very emotional and crying.” She recanted, saying “everything she had said... was a lie.” Phoenix said she did not believe Vanessa’s recantation because Vanessa had provided detailed information. Vanessa then “went into the bathroom and threw up.”
The next morning, Phoenix learned that Lisa had stated Vanessa “was prepared to do the pretext phone call.” Vanessa said she had recanted because she was afraid defendant would go to jail.
Pretext Call Between Vanessa and Defendant
Vanessa made a pretext phone call to defendant the day after her interview with Phoenix. (The jury heard a tape recording of the call.) Vanessa told defendant she was “waiting to go to the doctor’s” because she thought she might be pregnant. Defendant said he did not believe that possible because “there was something used.” “[T]here are two things in play there... you were on your period” and “I used a thing.” Defendant tried to reassure Vanessa, saying: “Will you let me know what happens and - and you and I will take care of it OK.”
After listening to this conversation, Phoenix alerted Reid who arrested defendant.
DISCUSSION
Defendant argues the trial court deprived him of his constitutional rights “to present a defense and confront witnesses when it excluded the letters between Vanessa and Ryan and from Heather to Vanessa and limited [his] cross-examination of Vanessa.” Alternatively, defendant contends the court abused its discretion under Evidence Code section 352 by excluding the letters.
The Dispute over Admissibility of the Letters
Defendant contends his defense theory “was that Vanessa fabricated the allegations against him because she was angry with [defendant] about his efforts to restrict her relationship with Heather.” He argues the letters showed “that Vanessa was manipulative and duplicitous” and therefore capable of lying, and that Heather and Ryan falsely supported her claims because they loved Vanessa so obsessively “that they ‘would do anything’ for” her. He notes that the court, in contrast to its exclusion of the letters, admitted into evidence, at the People’s request and over his objection, over 43 e-mail messages between defendant and Angel (the 13-year-old police explorer). Defendant distills the essential question to be whether the excluded letters had “impeachment value” to attack the credibility of Vanessa, Heather and/or Ryan, “and whether the exclusion of those letters had a prejudicial effect on [his] defense.”
We note at the outset that in defendant’s November 6, 2009 request for transmission of exhibits to this court, he specified only letters to and from Heather, as well as defendant’s e-mail messages to and from Angel, not Ryan’s letters to Heather, even though defendant discusses the contents of Ryan’s letters in his appellate briefs. We review the court’s ruling based solely on the evidence before us.
In a pretrial hearing, the court and counsel discussed the People’s in limine motion to introduce evidence, under the fresh complaint doctrine, that Vanessa told three witnesses about the molestations. (The fresh complaint doctrine provides that “proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose - namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others - whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (People v. Brown (1994) 8 Cal.4th 746, 749-750.)
Defense counsel revealed that love letters existed showing Vanessa had a sexual relationship with Heather. He asked to introduce evidence of the letters to show that Vanessa had a motive to make false accusations against defendant because he and Lisa had restricted Vanessa from seeing Heather. The court and the prosecutor asked defense counsel whether he planned to introduce the letters themselves into evidence. Defense counsel replied he did not. He did, however, wish to reveal the “intimate relationship between [the] two young girls.” He also disclosed that all three corroborating witnesses (“Heather, Shaylene, and Ryan”) “had intimate relations with Vanessa”; defense counsel sought to introduce evidence of the relationships and that Vanessa’s parents disciplined her. The prosecutor asked to see the letters, but defense counsel did not have them. The court ruled defense counsel could elicit evidence that the parents discovered Vanessa was involved in relationships the parents “considered to be inappropriate, ” but that the details of the relationships would be inadmissible as more prejudicial than probative under Evidence Code section 352.
Although the reporter’s transcript refers to “Shaylene, ” defense counsel was clearly referring to Chelene (Vanessa’s friend), since he stated, “These are the three people that are... coming forward to say they have fresh evidence.”
The court later noted that if defense counsel wanted “to prove that Vanessa was involved in some sort of sexual relationship with someone [to show] she’s got a bias to make false accusations, ” he would “need to comply with [Evidence Code section] 782” (procedure for admitting evidence of sexual conduct of complaining witness).
During Heather’s testimony, the prosecutor objected under Evidence Code section 352 to defense counsel’s plan to ask defendant about 15 letters individually. The prosecutor stated: “We’ve already established that they were a couple, they had an on and off relationship for two years, that she loves her, that she said she loved her in these letters, and she still loves her.” Defense counsel then stated he would have Heather authenticate the letters and would ask “follow-up questions” the court could rule on as they came up. Heather then authenticated the letters. Heather testified they were love letters, that Lisa phoned Heather and told her not to call or “hang out” with Vanessa, and that the girls secretly continued their relationship and even went to Vanessa’s house without Vanessa’s parents knowing about it.
Defense counsel later sought to admit some of the letters as exhibits. He argued that the letters from (and to) Vanessa, Heather, and Ryan showed their bias as witnesses. He stated Ryan’s testimony was “they went out a few times, no big deal, ” but in reality, “He’s talking about how he’s going to change her life and change her world. And every one of these letters, they profess their love to each other. In the case of Heather, they’re on again, off again, on again relationship. Intense emotionality... that would make a... significant impression as far as credibility with the jury.” Defense counsel felt Heather’s and Ryan’s testimony lacked the emotional intensity memorialized in their letters in which they said they would always “be there [for Vanessa] no matter what, forever.” He argued the letters showed (1) the intensity of the relationships; (2) the timeframe showing Vanessa made no complaints prior to the dispute with her parents about her relationship with Heather; (3) Vanessa’s deceptiveness to Heather and Ryan and her duplicity in leading them on; and (4) the competition between Heather and Ryan for Vanessa. The prosecutor countered that the foregoing had already been testified to in court by the witnesses.
The court found the letters were relevant based on People v. Mickle (1991) 54 Cal.3d 140. But, after conducting an Evidence Code section 352 balancing, the court denied defendant’s request to admit the letters into evidence. The court ruled that on Evidence Code section “352 grounds... especially in light of the... policy against introducing evidence of sexual conduct of an alleged victim such as Vanessa and the chance of confusing the jury, consumption of time, I think on balance, we’ve allowed you to cross examine the witnesses using the documents to help show their bias, I think that’s the appropriate balance.”
In People v. Mickle, supra, 54 Cal.3d 140, our Supreme Court held that letters written by a jailhouse informant were relevant as “tending to show [the] witness ha[d] some motive, bias, or interest that might induce false testimony....” (Id. at p. 168.) The informant had written the letters “to judges in three separate criminal cases pending against him several months before [the] defendant’s trial, ” “vigorously offer[ing] to inform on various people in exchange for leniency, and explain[ing] that he feared injury and death in prison and had been threatened with sexual assault in jail.” At the defendant’s trial, the informant testified he “had received no benefit for his testimony” and “simply wanted to ‘help society’ and become a ‘better’ person.” (Id. at p. 167.)
Exclusion of the Letters Did Not Deny Defendant a Fair Opportunity to Defend
We address defendant’s constitutional claims first. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” (Chambers v. Mississippi (1973) 410 U.S. 284, 294.) A criminal defendant has a “fundamental constitutional right to a fair opportunity to present a defense.” (Crane v. Kentucky (1986) 476 U.S. 683, 687.) “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, supra, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (Id. at p. 690.) “Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553.)
Under the Sixth Amendment, a criminal defendant also has the right to cross-examine and impeach witnesses against him or her, such as by “revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” (Davis v. Alaska (1974) 415 U.S. 308, 316-317.) Nonetheless, a trial judge has “broad discretion... to preclude repetitive and unduly harassing interrogation.” (Ibid.) “Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.” (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) “[U]nless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye, supra, 18 Cal.4th at p. 946.)
Here, the court’s exclusion of the letters and restriction of cross-examination concerning the letters did not deny defendant a fair opportunity to present his defense. Essentially, his defense was that Vanessa had been duplicitous and manipulative with Heather and Ryan, and that Heather and Ryan were so obsessed with Vanessa they were willing to falsely state she had complained to them about defendant’s molestations. The record reveals defendant was not foreclosed from presenting that defense. He cross-examined the three witnesses about the letters and established that Vanessa was dating Heather and Ryan at the same time and that Heather and Ryan felt they loved Vanessa at the time the letters were written. (See People v. Smith (2007) 40 Cal.4th 483, 521 [“the absence of Jesse’s testimony did not deprive defendant of his ability to present a defense; because Joseph testified at defendant’s trial, defense counsel was free to cross-examine Joseph about his alleged confession to Jesse”].) The jury heard about Vanessa’s parents forbidding her to see Heather, about Vanessa’s love for Heather, and about Vanessa’s resulting defiance toward her parents, thus establishing Vanessa’s potential motivation to fabricate allegations against defendant. Ryan testified that Vanessa, “like anybody else, ” was not always honest with him. On the central issue of Vanessa’s credibility, our review of the exhibit letters does not support defendant’s assertion that they show Vanessa to be duplicitous. (Evid. Code, § 1103, subd. (a)(1) [character evidence offered by defendant “to prove conduct of the victim in conformity with the character or trait of character”].) In fact, the letters reveal Vanessa was frank with Heather about her relationship with Ryan. Nor do the letters show Vanessa was unilaterally manipulative (if at all). Rather, Heather herself talked about a boy named Richard with whom she (Heather) was involved with, moving away unless she and Vanessa were together, “calling Darrell, ” and being accused of “ditch[ing Vanessa] to see Arica.” By the February 9, 2006 letter, Heather was pregnant. In the final letter in the exhibits, it is Heather who breaks up with Vanessa and apologizes for “all the pain” and all the break-ups she put Vanessa through. On the whole, the letters do not reveal an extraordinary intensity of passion; in fact, often times Heather wrote them during class time out of boredom with her school work. Nor would further cross-examination about the letters have produced “‘a significantly different impression of [the witnesses’] credibility.’” (People v. Frye, supra, 18 Cal.4th at p. 946.) The jury heard abundant evidence that Heather and Ryan had loved Vanessa. In closing argument, defense counsel emphasized the letters, e.g., pointing out that Vanessa never told anyone about the molestations until after her parents found Heather’s letter and that Heather and Ryan, who “supposedly corroborat[ed] Vanessa’s words” had exchanged “letter after letter after letter after letter” with Vanessa. In sum, defendant’s constitutional rights were not infringed.
In only one letter did Heather accuse Vanessa of lying, and the accusation resulted from Heather’s “read[ing] between the lines” that Chelene was trying to “get between” Heather and Vanessa. In contrast, in Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1271, 1272 (disapproved on another ground in Payton v. Woodford (9th Cir. 2002) 299 F.3d 815, 827), cited by defendant, the excluded evidence showed the victim made a prior accusation of sexual molestation against her mother similar to the ones she made against defendant.
The Court Did Not Abuse Its Discretion by Excluding the Letters Under Evidence Code Section 352
Absent constitutional considerations, Evidence Code section 352 accords a court discretion to “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.” (Ibid.) “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against... [one party] as an individual and which has very little effect on the issues, ’” and thus includes prejudicing the jury “against the victim or the prosecution.” (People v. Wright (1985) 39 Cal.3d 576, 585.) Under the deferential abuse of discretion standard of review, “a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
Here, the court excluded the letters under Evidence Code section 352 due to the substantial danger they would unduly prejudice the People (because of references to Vanessa’s sexual conduct), confuse the jury, and consume inordinate time. The court did not abuse its discretion by doing so. The letters referred to the girls’ sexual conduct and Vanessa’s drug use, which might have biased and confused the jury. Defense counsel devoted exhaustive time to cross-examining Heather, Ryan and Vanessa about the letters - 10 reporter’s transcript pages for Heather, 13 for Ryan, and 13 for Vanessa. The admission into evidence of the letters would, for the most part, have resulted in repetitive, cumulative evidence; the court pointed out many entries were “duplicative, ” “saying largely the same thing.” Even defendant recognizes that the impact of the letters would have been a matter of degree: “The fact that the three were romantically involved is some evidence that Ryan and Heather might be willing to lie for Vanessa. Their statements that they would do anything for Vanessa is much stronger evidence.” As discussed above, the probative value of the letters concerning Vanessa’s credibility was minimal. The court did not abuse its discretion by excluding the letters pursuant to Evidence Code section 352.
In one letter, Heather wrote to Vanessa, “[D]id it feel weird to kiss me with that thing in my lip.... God you look good in gay clothes. You know that hotness.” Another had a symbolic drawing with the word “Lezbians.” In a third, Heather stated, “I’m happy to know people think I’m a slut.” In another, Heather said that Ricky said “he would like being with two girls.” In another letter, Heather wrote, “Now I’m crying about the hole [sic] drug thing.... But if you keep on twicking [sic] it[’]s going to fuck up what might happen between us.”
Finally, defendant complains that the court admitted into evidence e-mail messages defendant sent to Angel. But these e-mail messages were written by defendant to an alleged victim; therefore their probative value was high. Nor did the e-mail messages contain potentially prejudicial references to sexual conduct by the victim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P.J., ARONSON, J.