Opinion
H042319
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER BRIAN HORTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS112399A)
I. INTRODUCTION
Defendant Christopher Brian Horton was charged in a five-count amended information with infliction of corporal injury upon a spouse occurring on November 21, 2011 (Pen. Code, § 273.5; count 1), spousal rape occurring on November 22, 2011 (Pen. Code, § 262, subd. (a)(1)); count 2), infliction of corporal injury upon a spouse occurring on December 23, 2011 (Pen. Code, § 273.5; count 3), forcible oral copulation spousal rape occurring on December 23, 2011 (Pen. Code, § 288A, subd. (c)(2)(A); count 4), and assault with intent to commit a felony occurring on December 23, 2011 (Pen. Code, § 220, subd. (a)(1); count 5). It was alleged further in the information that defendant had suffered a prior felony conviction for rape (Pen. Code, § 1170.12, subd. (c)(2)) and was a habitual sex offender (Pen. Code, § 667.71). The victim of the charged offenses was defendant's wife, Jane Doe 1 (hereafter, Jane).
In March 2015, a jury found defendant guilty as charged and also found true the prior strike and habitual sex offender allegations. The court sentenced defendant to 156 years to life in prison.
Defendant asserts six claims of error on appeal. He argues the trial court abused its discretion by denying his pretrial motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Second, he contends the court erred in admitting evidence of prior sex offenses pursuant to Evidence Code section 1108. The challenged evidence involved (1) an uncharged rape involving Jane Doe 2 occurring in Carmel in April 1993, and (2) a 1996 rape and other sex crimes involving Jane Doe 3 of which defendant was convicted. Third, defendant argues that admission of evidence that defendant harassed Doe 2, resulting in her obtaining a restraining order (including the introduction of a trial exhibit evidencing the restraining order), was error. He asserts alternatively that, assuming the issue was not preserved for appeal, his attorney's failure to object to the harassment/restraining order evidence (including the trial exhibit) constituted ineffective assistance of counsel. Fourth, defendant asserts that the trial court erred in admitting evidence concerning certain statements made by Jane to her friend and to a police officer. Fifth, he claims the court committed error by limiting the cross-examination of Jane. Sixth, defendant requests that we review Jane's sealed personnel records and a police report concerning an unrelated crime reported by Jane to determine whether the court erred in concluding that the records contained no discoverable information requiring their disclosure to defendant.
Further statutory references are to the Evidence Code unless otherwise stated.
We conclude that the trial court did not err (1) in denying defendant's Faretta motion; (2) in admitting prior sex crimes evidence pursuant to section 1108; (3) in admitting the extrajudicial statements of Jane to the police officer; (4) in limiting the cross-examination of Jane; and (5) in concluding that Jane's personnel records and the police report were not discoverable. We conclude further that defendant forfeited his appellate challenge to the admission of the harassment/restraining order evidence, and we reject his alternative claim of ineffective assistance of counsel. And while we conclude the court erred in admitting certain statements made by Jane to her friend, the error was harmless. Accordingly, we affirm the judgment of the trial court.
Defendant filed a separate habeas corpus petition alleging that he received ineffective assistance of counsel in that counsel failed to adequately cross-examine a prosecution witness, and failed to object to inadmissible evidence concerning defendant's harassment of Jane Doe 2 as well as a trial exhibit involving a restraining order obtained by Jane Doe 2 related to the harassment. (In re Christopher Horton, H044724.) We ordered that the petition be considered in conjunction with this appeal. We have considered the merits of this petition and by separate order filed this date, deny the petition.
II. FACTS
We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
A. Prosecution Evidence
1. Charged Offenses (November 21-22 , December 23 , 2011)
Because her first language was Spanish, Jane testified through a certified Spanish interpreter.
Jane met defendant at the end of August 2010 when he approached her inside a Walmart store. After speaking over the telephone a number of times in 2010, Jane invited him to dinner at her apartment. That evening, when defendant disclosed that he was married, she told him she didn't want to see him anymore.
Jane next saw defendant in March 2011 when he stopped by her apartment. He told her that his wife had passed away. Thereafter, they began a relationship. In May, after defendant told Jane that he was lonely and that his daughters and mother-in-law had abandoned him, she allowed him to move in with her. They began having a sexual relationship afterwards. In July, after they moved to Salinas, defendant asked Jane to marry him, but she declined, saying it was too soon after his wife's death.
All dates hereafter in the discussion of facts are 2011 unless otherwise stated.
Later that year, on November 11, Jane and defendant married. They had a reception on November 19. After the reception, defendant told Jane that he had cancelled their honeymoon, and they went home. Jane decided that, with the trip cancelled, they would have their honeymoon at home. She "put on some special clothing" and went into the bedroom. Defendant laughed at her and asked if she was crazy. After she said she wanted to make love, defendant responded that "it would only happen when he wanted to, not whenever." In the following days, defendant's demeanor changed. He was angry all the time and would frequently curse, using words like "fuckin' bitches . . . and putas [Spanish for whores]," words he had not used before they had married.
On the evening of November 21, Jane was in the bedroom on the phone with her daughter. Defendant came in, asked with whom she was speaking, and then ordered Jane to hang up and not to talk to anyone on the phone. Jane continued the call. She then went into the kitchen for a glass of milk. Defendant came in from the living room and told her she couldn't get anything and ordered her to put down the milk. As Jane returned to the bedroom, defendant struck her with "a very strong blow to the head," and she dropped the phone. She felt dizzy and "[e]verything went dark." Defendant yelled at her, called her puta and said, " 'Why didn't you listen to me? I told you to hang up.' " After Jane asked why he had struck her, defendant kept yelling at her and told her she had to do as he ordered. He shook her by the shoulder. After he stopped, Jane picked up the phone. In response to her daughter asking what was wrong, Jane said she had just dropped the phone; she was embarrassed to tell her daughter that defendant had struck her. After telling defendant not to hit her, he said, " 'Shut up, whore, puta. You have to do what I say.' " She sustained a bump on the back of her head as a result of defendant's striking her. It persisted for approximately one week.
The next evening (November 22), Jane was lying down in the bedroom resting because her head hurt. Defendant came in, grapped his penis, and said, " 'That's what you wanted.' " She told him she didn't feel well and that her head hurt. Defendant grabbed her by the hair, got on the bed, spread her legs, and orally copulated and digitally penetrated her. Jane, who was crying, told him to stop, that he was hurting her, and her head hurt from him hitting her the previous day. Defendant turned her, insulted her, called her a whore, and put his penis in her vagina, pulling her hair and slapping her in the face while doing so. He also grabbed her by the neck and spat on her. She repeatedly asked him to stop and told him he was hurting her. He stopped after ejaculating inside of her.
On another occasion, defendant took Jane's phone and her "papers" away so that she was unable to communicate with her family in Mexico. She saw her friend, Jasmin, on the street as Jane was walking to buy a phone after defendant had taken her phone away from her. Defendant also forbade Jane from going to school and took her car keys. Defendant instructed her to stay inside the house and threatened to report her to immigration. She went to school anyway on foot.
On the morning of December 23, as they were getting ready to clean homes, defendant was very upset by someone having left a drawing of him outside the door. He swore and said, " 'All women are whores.' " After Jane asked him to stop, he said, " 'You, too, bitch. Shut up.' " When they returned home that evening, defendant was still upset and was yelling. At approximately 9:00 p.m., while Jane was in the bedroom on the phone with her daughter, defendant came in from the living room and asked with whom she was speaking. After she told him, defendant got on the bed and began orally copulating her. After she moved him away and told him to stop because she was talking to her daughter, defendant said, " 'Tell your daughter I licked your pussy.' " Jane told her daughter she would call her back and hung up. She then said, " 'Brian, don't treat me this way.' " Defendant responded, " 'Shut up, whore, bitch. I will do whatever I want to do.' "
Defendant had a business cleaning homes, and Jane, in addition to working another job and going to school, helped him on weekends.
Approximately one hour later, Jane was talking on the phone with Jasmin. Defendant came into the bedroom and again asked her with whom she was speaking. After she told him, defendant got on the bed and spread Jane's legs. She told him to stop, but he did not, and he orally copulated her. She again asked him to stop. Defendant instead made "really ugly sounds" and said, " 'Tell Jasmin that I'm licking your pussy.' " Jasmin asked Jane what was going on, and she responded that she would call her back. After she hung up, defendant kept calling Jane a whore, and said, " 'I want to fuck, bitch.' " Defendant laughed and left the room.
Jane then lay on the bed and chatted on Facebook. Defendant came back and got into bed. Jane showed him a picture of his daughter she had found. (She had conducted the search because defendant had told her previously that "he wanted to look for his daughters, because they didn't want to see him.") Defendant became very upset and started yelling at her, again calling her a whore. He got out of bed, grabbed Jane by the neck, raised his hand to hit her, and called her a whore. He then pulled her by the arm out of bed and started shaking her. He pushed her into the living room.
Jane watched television ("the Animal Planet channel") in the living room. After a while, defendant came out of the bedroom, threw a Bible at her, and told her, " 'Whore, read.' " She returned it to her bedside table and asked defendant not to throw it. In a later encounter, defendant came back into the living room, pulled on his penis, and told Jane, " 'This is what you wanted.' " Jane asked him not to bother her and said she wanted to rest in the living room. Defendant pulled Jane hard towards him, took off her panties, and again called her a whore and a bitch. He began orally copulating her; she told him to stop, tried to close her legs, and tried to push him away. He used more force to open her legs again twice more. Because he refused to stop, Jane kicked defendant in the stomach, and he fell back on the floor. He then got up and grabbed Jane by the hair and hit her in the face. She asked him to stop. He spat in her face and tried to force her to orally copulate him. She turned her face and told him to stop. Defendant threw Jane on the floor and continued hitting her in the face and stomach, again calling her a bitch and a whore. Jane struck him in the groin, which caused him to stop momentarily. Jane reached for her phone and tried to get up. Defendant grabbed her hand. Jane said she wanted to go into the bedroom to rest; defendant said, " 'No, bitch. You're going to call the police.' " Jane went into the bathroom, locked the door, and dialed 911. Defendant knocked on the door and asked her to open it; she refused. He begged her not to call the police.
Jane told the 911 operator that her husband had struck her in the face and she felt embarrassed. After a Spanish interpreter was brought into the conversation, Jane repeated that her husband had struck her in the face, and that he had grabbed her by the neck and pulled her hair. She said that "[he] wanted to abuse with me. [sic]."
Officer Jorge Ramirez—who is fluent in Spanish and a certified bilingual investigator—testified that he had reviewed the 911 tape. When Jane said, as translated into English, "[defendant] wanted to abuse with me" she had used the words in Spanish, "abuser de mi, [or] abuse of me." Officer Ramirez testified that when the word "abuser" is used, "in general terms, when in the Spanish language we talk of something being abused, we're generally talking about sexual abuse."
Two or three police officers responded to the apartment. After being interviewed by them, Jane went to Natividad Medical Center (Natividad). She had significant pain in her left eye that was very light-sensitive. Both sides of her face were swollen, and she had pain in her stomach. She went for a follow-up visit because of her injured eye.
b. Officer Candi Swinscoe
Salinas Police Officer Candi Swinscoe responded to the scene on December 23. She interviewed Jane through a Spanish-speaking officer. During the interview, Jane said that the first incident occurred that night in the bedroom when she showed defendant photographs from Facebook of his late wife's children. Defendant became very angry and pushed her out into the living room. Jane said that defendant went back to the bedroom, and she went back to looking at Facebook on her laptop and turned on the television to "[a]n adult channel." Officer Swinscoe testified further that defendant went into the living room and threw a Bible at her; she took it back into the bedroom and told defendant never to throw it again. Jane said that a short time later, defendant returned to the living room, demanding sex. He removed Jane's underwear, orally copulated her, and digitally penetrated her as she kept telling him not to. Jane reported to the officer that after she pushed him away, he grabbed her hair, pulled her off the couch onto the floor, and slapped her across the face. After Jane punched him in the groin, she got the telephone and called 911. Officer Swinscoe asked Jane if there were any prior incidents. Jane responded that there were two instances in which defendant had struck her in the back of the head; she did not mention any prior sexual assaults.
Officer Swinscoe observed that both of Jane's cheeks were red and slightly swollen and one of her fingers was bleeding. The officer later observed that there was slight swelling to Jane's inner thigh. Officer Swinscoe testified that Jane did not appear to have been intoxicated, although she told the officer she had drunk between one glass and two glasses of wine.
c. Testimony of Jasmin Deanda
Jasmin Deanda (Jasmin) is Jane's friend. They met at Hartnell Junior College, where they were both students. When she first met defendant (before Jane and he had married), defendant told Jasmin that he did not like friends of his wife or girlfriend receiving visitors at his home or her receiving phone calls from them. On the day that Jasmin met him, she was invited to go shopping with them to Gilroy. On the way there, defendant made a comment that Jasmin felt was "out of place . . . and inappropriate"—that "he had a fantasy that he wanted to be with two women at the same time."
After defendant and Jane married, Jasmin saw less of Jane. On one occasion while she was driving, Jasmin saw Jane on the sidewalk; she was walking, crying and dressed unusually in pajama pants and a long coat. Jasmin transported Jane so that she could pay her phone bill, because defendant had taken away her other phone. Jane told Jasmin that she was crying because she was having problems in her marriage; she said defendant became aggressive when Jane did not do as he said and that there had been physical contact.
On another occasion, Jasmin called Jane about a homework assignment. Jane said that she couldn't talk, saying "it in a desperate manner." Jasmin testified that defendant "was trying to perform oral sex on [Jane] and . . . he wanted her to tell [Jasmin] what he was doing to her."
On December 23, Jane called Jasmin and asked her to take her to the hospital. Jane was very sad and was crying, and she said she was in pain. Jasmin observed that one of Jasmin's eyes was very swollen.
d. Officer Jorge Ramirez
Jorge Ramirez, a peace officer employed as an investigator with the Monterey County District Attorney's Office, interviewed Jane for approximately ten minutes on the morning of January 12, 2012, and he confirmed her willingness to testify at the preliminary hearing. Jane testified that afternoon. Officer Ramirez met briefly with Jane beforehand; she was visibly upset because someone had trespassed in her apartment over the noon hour. She reported the trespass to Officer Ramirez and the Salinas Police Department. From his investigation into the trespass, Officer Ramirez determined that the perpetrator was someone who knew defendant.
Officer Ramirez met twice with Jane five days later. The initial purpose of meeting with her was the further investigation of the trespass at her home. In the second meeting, Jane brought Officer Ramirez some documents relating to her sexual assault case, namely, photographs she had taken of herself, discharge papers from Natividad, and a drawing that had been placed on her front door on December 23 that had enraged defendant. Jane disclosed to Officer Ramirez additional details concerning the sexual assault than she had not previously given him. He said that, in his experience, this circumstance was common in sexual assault cases. Jane talked about the drawing; the conversation she was having with her daughter when defendant orally copulated her; the conversation she was having with her friend when defendant orally copulated her; and about defendant attempting to force her to orally copulate him on December 23 while in the living room. Jane was upset in recounting the incidents, was ashamed, and was vehement that she did not want her daughter contacted.
On cross-examination, Officer Ramirez testified that Jane had initially told him—and had similarly testified at the preliminary hearing—that defendant had " '[n]ever' " abused her prior to the December 23 incidents. Officer Ramirez also testified on cross-examination that when he interviewed Jane in August 2012, she told him that defendant had penetrated her with his penis on December 23.
e. Testimony of Officer Daniel Garcia
On January 12, 2012, Salinas Police Officer Daniel Garcia responded to a report of trespass by Jane at her apartment. When he met with Jane, "she was crying . . . [and] was scared." She told Officer Garcia that she was concerned about testifying in court later that day. According to Officer Garcia, "She said she felt pressured. She was scared to testify in court and tell the truth. If she told the truth, that something was going to happen to her."
f. Testimony of Karen Price
Karen Price, a physician's assistant at Natividad, treated Jane on December 23. She complained of pain in her head, left side of her jaw, right shoulder, legs, and abdomen. Jane was diagnosed as having multiple contusions and tenderness in her upper left quadrant (below the left side of the ribcage). Price did not note any injury to Jane's left eye. Price was not told that Jane had been sexually assaulted.
g. Testimony of Dr. Jeffrey Bass
Jeffrey Bass is an emergency room physician performing all of his clinical work at Natividad. He treated Jane on December 25, two days after her initial visit to the hospital. She was complaining of pain in her left eye, stating that light would cause her pain and she had some blurry vision in the eye. Jane told Dr. Bass that the eye had been injured in a domestic violence incident, that "she was punched in the eye." Dr. Bass found Jane's eye to be red and inflamed; shining light on her left eye caused it to hurt more. He diagnosed her as having traumatic iritis of the left eye. Iritis is the inflammation of the iris. One cause of iritis is trauma, including the patient having been struck by a blow. The condition is treated—and Jane was so treated—with eyedrops for dilation to neutralize the pain and anti-inflammatory medicine to prevent the formation of scar tissue; the formation of scar tissue to the iris may result in significant vision loss.
h. Testimony of Deborah Jacroux
Deborah Jacroux is a licensed marriage and family therapist specializing in counseling domestic violence victims. She testified that domestic violence may include emotional abuse, physical abuse, financial abuse, and sexual abuse. The cycle of violence found in domestic violence cases "is a wheel of power and control and it's an ongoing cycle that includes intimidation, isolation, certain acts of violence, verbal intimidation and can also include physical violence and sexual violence." The dynamic most typically begins with verbal and emotional abuse that escalates into physical and sexual abuse. Jacroux testified that isolation can be a component of domestic violence and may consist of the perpetrator limiting the partner's contacts with family and friends—both direct contacts and through electronic means such as email and social media—thereby eliminating the outside support of the partner. It is common for the victim of domestic violence not to report the abuse for various reasons, such as fear of reprisal, guilt, shame, and internal conflict within the victim.
2. Uncharged Offenses
a. Testimony of Jane Doe 2 (April 8, 1993)
Because Jane Doe 2 lived out of state and was terminally ill, the court determined that she was unavailable as a witness and it ordered her conditional examination pursuant to section 240. Her testimony was preserved 10 months before trial, and her videotaped testimony was played for the jury.
Jane Doe 2 (Doe 2) met defendant on Carmel Beach in December 1992. Doe 2 was visiting the area for an undetermined period of time and had leased property in Carmel. They began a platonic friendship; over the course of several months, defendant made "constant attempts to make the relationship more than a friendship." But she always told him she was not interested in a romantic relationship. Defendant's overtures were both verbal and physical (including touching her breasts outside of her clothing several times). When Doe 2 asked defendant to stop, he complied. He came by her house many times, often unannounced and uninvited. (He had deduced where she lived by her general description of the location; her landlord was his client and he had cleaned the house.)
On the evening of April 8, 1993, Doe 2 invited defendant to her house for dinner. She made dinner for him, and she had three to four glasses of wine over the course of the evening. Defendant, as he had done in the past, tried to draw Doe 2 out to discuss her past relationships and sexual experiences, which made her uncomfortable. He groped her by touching her breasts, and she told him again she was not interested in a physical relationship. Later in the evening, defendant said he was tired and asked if he could lie down for a while; she agreed, telling him that there would be no "sexual activity whatsoever." He went into the bedroom to lie down. After some time passed, Doe 2 went to lie down. She thought defendant was asleep when she got into bed to go to sleep, having removed her pants, but not her top or underwear. Defendant then began groping Doe 2's breasts. She repeatedly said "No," but he jumped on top of her. He pinned her down with his arms and body. He was able to take off Doe 2's underwear and his underwear, and he used his legs to open her legs. Defendant penetrated her vagina with his penis until he ejaculated. Doe 2 did nothing to encourage his sexual advances.
Afterwards, Doe 2 went into the living room to sleep. She stayed there until defendant left sometime the next morning. Doe 2 testified that she had been naïve in permitting defendant to sleep at her house. She stated that she had many male friends, had grown up with three brothers and many cousins, and that it was not unusual to sleep in the same bed with them. She testified further that she had an agreement with defendant that he wouldn't pursue her physically, and she "wouldn't have allowed [him to sleep at her home] if he hadn't absolutely agreed." Doe 2 testified that she did not call the police after defendant raped her because she was traumatized and ashamed, and she "wanted the situation to go away." She asked herself, " 'What did I do to cause this?' "
Defendant called her shortly after the incident, and she told him that she was very angry about what he had done. He repeatedly called her, but she didn't know how to handle the situation and did not want to make the problem worse. After an incident at a bank in which she became very afraid because he had displayed extreme anger, defendant's telephone calls to her became abusive. She told him not to call again, but he persisted with abusive calls. Doe 2 went to the Carmel Police Department for assistance. After she moved to a different rental property in Carmel of which defendant was unaware, his phone calls stopped. But after Doe 2 moved again to Monterey and obtained a listed telephone number, defendant resumed phoning her. Doe 2 hired an attorney, who obtained a restraining order to prevent defendant from contacting her further. Phone calls from defendant increased, and Doe 2 ultimately obtained, through her attorney, an order of contempt.
b. Testimony of Jane Doe 3 (1996)
In 1996, Jane Doe 3 (Doe 3) was living with her nine children in Salinas. While she was walking to the market in the middle of the day, a man (defendant) called out to her. Since he spoke in English, and Doe 3 spoke little English, she did not understand him very well. With some translation assistance from three passers-by, Doe 3 understood that defendant said he was looking for some help to clean houses that day. Doe 3 badly needed work at the time. Defendant followed her in his car while Doe 3 drove home to change to prepare for work. He then drove Doe 3 in his van to the supposed job site. After stops at a house in Seaside and at a restaurant where defendant bought her lunch, he took Doe 3 to a house near Monterey that seemed old or abandoned.
After defendant directed her inside the house, he closed and locked the door with a key and "threw [Doe 3] towards the sofa with such force and anger." He chased her around the room and tried to undress her. She asked him to let her go, but he had the key to the locked room. After Doe 3 tired from struggling with him, he took her into a bedroom and again tried to undress her. He forced her to orally copulate him. He then undressed her and spread her legs. He attempted to orally copulate her, but she prevented him from doing so. He digitally penetrated her, and penetrated her vagina with his penis. Afterwards, he instructed her to get in his van, took her to a bus stop, gave her $3 and left her there.
Doe 3 did not initially tell anyone what had happened to her because she was ashamed and thought no one would believe her. She later told her son, and with his help, she contacted the police and ultimately testified in court against defendant. Defendant was convicted of six sex offenses related to his assault upon Doe 3.
B. Defendant's Testimony
1. Charged Offenses
Defendant testified that he has ulcerative colitis. On his wedding night, he was in bed sick and told Jane to wait until he felt better to have sex. He denied that he ever (1) withheld keys from Jane, (2) prevented her from leaving the house, (3) prevented her from going to school, (4) attempted to keep her from having a phone, (5) forcefully inserted his penis in her vagina at any time, (5) forcefully placed his mouth on her vagina at any time.
He recalled an incident on November 21 when they were in the kitchen together and he was preparing dinner. Jane was on the phone and bumped into him. He playfully tapped her on the head. He did not strike her with force. Defendant denied raping Jane on November 22 or forcing sex on her in any way.
On December 23, he was feeling extremely ill and had been "continually bleeding." He denied having raped Jane. He also denied having had forcible oral sex with her on that day, testifying he had no sex with her at all that day. He denied further that he heard Jane talking on the phone with either her daughter or her friend Jasmin any time while they were home that day.
That evening, after arriving home from a doctor's visit to address his colitis, he tried unsuccessfully to get Jane to come into the living room to watch a Christmas special. Instead, she stayed in the bedroom with her phone and watched pornography on a laptop computer. Later, defendant went to bed, but she was still watching pornography on her laptop. While in bed, Jane showed him a photograph on Facebook of defendant's deceased wife and their daughter and made a disrespectful comment. He asked her not to be disrespectful of his late wife or their daughters. Defendant kept looking at her laptop, despite his asking her to go in the living room. He then got up, grabbed a glass of wine Jane had been drinking, and poured it down the kitchen sink. (Defendant testified that Jane consumed approximately one and one-half bottles of wine that evening.) Eventually, Jane went out to the living room after defendant pulled back the covers, said he was sick, and again asked her to leave the bedroom. He did not push her out of the room.
After he had been asleep for a short time, defendant was awakened by moaning from the living room. He went into the living room and saw Jane on the phone, watching an adult program and masturbating. Defendant went into the bedroom to retrieve the Bible, and he tossed it to her, saying, " 'This is what you need to be looking at the night before Christmas.' " Jane stood up and said, " 'Watch it, Brian. Let me remind you . . . . Watch what you say, what you do.' " Defendant testified that "[s]he'd always told me she could put me in jail and I would never get out.' " Defendant returned to the bedroom.
He was again awakened shortly afterward by the same noises. He returned to the living room and turned off the television. He sat down near Jane on a sectional couch and asked her why she wasn't happy with him. She did not respond. He then tried to hold her and comfort her. Then the Christmas tree lights, which were on a timer, went off and Jane remarked, " 'Maybe Jesus [defendant's late wife] is here with us.' " He responded, " 'You ungrateful bitch. How dare you sit there and disrespect my wife. My daughters. My wife. Me.' " He told Jane, " 'You know what, you're not happy with me. Tomorrow I go find Anna. That's who I should have married.' " She responded by calling defendant a " 'motherfucker,' " spitting on him, and throwing a small statue at him, striking him on the shoulder. She also threw two remote controls, hitting him on the head. Jane continued to call him names and kicked him. He slapped her once on the left cheek with the palm of his hand, doing so forcefully enough to redden it. They fell between a coffee table and sofa during their struggle. After Jane said she was leaving, defendant responded, " 'You're not going anywhere. You've been drinking.' " She insisted she was leaving. Jane reached for her phone and he tried to remove it from her. He eventually let her have it; she said she would call Jasmin, and he told her she could call anyone but she was not driving.
Jane went into the bathroom and called 911. Defendant also called 911. After the police arrived, defendant told Officer Swinscoe that he and his wife both had fallen, and that Jane had struck her face on a table. He admitted that he had falsely denied having struck Jane when he was interviewed by the police. He explained that he was fearful that he would be arrested because he is a convicted felon.
2. Uncharged Offenses
Examination of defendant by his counsel concerning Doe 2 was cursory and broad, and therefore defendant's answers were somewhat ambiguous. Defendant testified that he had dated Doe 2; in very general terms, he denied the allegations she made in her testimony. Defendant responded in the negative to the question, "[I]s what [Doe 2] said happened, did that happen?" He thereafter answered, "Yes," in response to the question by his counsel, "But you're adamant that what [Doe 2] said happened did not happen?"
Defendant's testimony on direct examination concerning Doe 3 was similarly brief. Defendant's response to his counsel's question as to whether he admitted raping Doe 3 was: "I admit that I placed Jane Doe [3] in a position that she should not have been in. I admit that I wrongly used my business to mix with pleasure. I admit that I was a dirty adulterer. And I admit that it was wrong what happened between [Doe 3] and I [sic], yes."
On cross-examination on the same subject, the following exchange took place: "Q. So you did rape Jane Doe Number [3], correct? [¶] . . . [¶] A. I was convicted of this, yes. [¶] Q. Did you rape Jane Doe Number [3]? [¶] A. They said I did, yes. [¶] Q. Did you rape Jane Doe Number[3]? [¶] A. What did I just say? Yes." Defendant's further testimony during cross-examination, as to whether he admitted to having raped Doe 3 was similarly equivocal: "Q. Further in the investigation you told [the police] it [sex with Doe 3] was consensual; correct? [¶] A. Yes. [¶] Q. And now you're telling us that you raped her? [¶] A. I'm telling you I was convicted of this. [¶] Q. But did you rape her? [¶] . . . [¶] A. What do you want from me? [¶] . . . [¶] Q. I want you to testify to what you did. [¶] A. And I have to sit here and tell you the honest to God truth and I have to tell you that they didn't hear not even half of what happened with Jane Doe Number [3] and myself. [¶] . . . [¶] Q. Did you rape Jane Doe Number [3]? [¶] A. I have to again tell you I was convicted of this. What happened between Jane Doe Number [3] and myself was completely wrong and that I was wrong for putting her in a position for what she was. [¶] . . . [¶] A. If that is considered rape and I'm found guilty of it, then I guess I did. [¶] Q. You're still not admitting you raped her? [¶] A. Again, what do you want from me? [¶] . . . [¶] Q. You were convicted of six felony counts; correct? [¶] A. Yes. [¶] . . . [¶] Q. And as you sit here today, you still cannot tell us that you raped that woman; correct? [¶] A. Again, I'm going to tell you that what I did was wrong. Very wrong. [¶] Q. When you say that, does that mean that you had sex with that woman while you were married to Jesus? [¶] A. It means that. It means that I made a very improper, inappropriate, wrongful decision as a businessman. [¶] Q. What was that improper, inappropriate, decision as a businessman? [¶] A. To sleep with this woman. [¶] Q. To have sex with her in a home in Carmel; correct? [¶] A. A home that my business cleaned for, yes. [¶] Q. Forcible sex; correct? [¶] A. Is it forcible when she went to the restroom and painted her face and fixed her lipstick and asked me where my wife was? Was that forcible? Was it force? [¶] . . . [¶] A. I don't know how to answer this. I'm truthfully telling you I do not know how to answer this. I'm telling you I was convicted of this. And I'm also telling you in front of my jury that not even half was let in of what took place with Jane Doe Number [3] and I [sic] [myself]."
III. PROCEDURAL BACKGROUND
Defendant was charged in a five-count amended information with infliction of corporal injury upon a spouse occurring on November 21, 2011 (Pen. Code, § 273.5; count 1), spousal rape occurring on November 22, 2011 (Pen. Code, § 262, subd. (a)(1)); count 2), infliction of corporal injury upon a spouse occurring on December 23, 2011 (Pen. Code, § 273.5; count 3), forcible oral copulation spousal rape occurring on December 23, 2011 (Pen. Code, § 288A, subd. (c)(2)(A); count 4), and assault with intent to commit a felony occurring on December 23, 2011 (Pen. Code, § 220, subd. (a)(1); count 5). It was alleged further in the information that defendant had suffered a prior felony conviction for rape (Pen. Code, § 1170.12, subd. (c)(2)) and was a habitual sex offender (Pen. Code, § 667.71).
The amended information traced its origin from two separate complaints. The three crimes alleged to have occurred on December 23, 2011—that ultimately became counts 3 through 5—were initially alleged in a complaint filed (Monterey County Superior Court case No. SS112399) on December 28, 2011. The two crimes alleged to have occurred on November 21 and 22, 2011—that ultimately became counts 1 and 2, respectively—were initially alleged in a complaint filed (Monterey County Superior Court case No. SS142169) on or about August 25, 2014. The two cases, upon motion of the District Attorney, were ordered consolidated on January 22, 2015.
A jury trial commenced on March 9, 2015. On March 20, 2015, the jury found defendant guilty of each of the five offenses alleged and found true the enhancements. On May 5, 2015, the court sentenced defendant to prison for a term of 156 years-to-life. Defendant filed a timely notice of appeal.
IV. DISCUSSION
A. Claim of Error Based upon Denial of Faretta Motion
1. Defendant's Motions to Discharge Counsel
Defendant's first counsel of record after the filing of the initial complaint on December 28, 2011, was Charles Shivers of the Monterey County Public Defender's Office. On February 7, 2012, based upon the declaration of conflict filed by the County Public Defender, the office was relieved as counsel, and the court appointed Alternate Public Defender Steven Liner as defendant's counsel. Thereafter, over the course of approximately three years, defendant made a total of 10 motions to discharge counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden): three motions involved Liner, one was brought to discharge successor counsel Scott Erdbacher, and six were brought seeking to discharge counsel who ultimately tried the case, Richard Rutledge.
The court appointed Rutledge as defense counsel on February 26, 2013. On January 7, 2014, defendant made a Marsden motion to discharge Rutledge. Defendant's complaints against Rutledge were similar to those defendant had made in prior Marsden motions involving prior counsel (Liner and Erdbacher). The court denied the motion.
Defendant made a second motion to discharge Rutledge, which was set for a Marsden hearing on April 10, 2014. The record reflects that defendant withdrew that motion on the date of the scheduled hearing.
A third Marsden motion seeking to discharge Rutledge was made by defendant on May 8, 2014. Defendant's complaints were ones raised at the prior Marsden hearing on January 7, 2014, adding that Rutledge had not visited him in jail for more than four months. Rutledge stated he had not visited defendant because at a prior hearing, defendant had threatened him. The court denied the Marsden motion. In public proceedings immediately afterward, the court recited that at the conclusion of the Marsden hearing, defendant had "turned in the Court's presence to Mr. Rutledge and stated, 'You wonder why you were slashed in court.' " At the conclusion of the public proceedings, defendant stated, "I won't be here for trial."
On May 22, 2014, immediately before Doe 2 was sworn as a witness to testify at the conditional examination, defendant stated that he had been told that another attorney was being appointed to represent him. The court recited its understanding to the contrary, based upon the denial of defendant's Marsden motion on May 8, 2014. Defendant then stated—notwithstanding Rutledge's appearance and participation at the conditional examination—"At this time, I do not have an attorney representing [¶] . . . [¶] me. I made this clear at the Marsden motion."
Defendant made a fourth Marsden motion to discharge Rutledge on August 25, 2014. The court denied the motion.
Defendant made a fifth Marsden motion to discharge Rutledge on January 8, 2015. Defendant's complaints concerning Rutledge were ones raised at the three prior Marsden hearings, including Rutledge's lack of visits and communication with defendant in jail, and differences concerning trial strategy. During the hearing, defendant stated three times that he wanted "to take [his] case [him]self" if the court did not discharge Rutledge and appoint a new attorney. The court denied the motion. In public proceedings that immediately followed, defendant reiterated that he wished to represent himself, and the court scheduled a hearing on his Faretta motion (discussed, post).
A sixth Marsden motion seeking to discharge Rutledge was made by defendant on the day of trial, March 9, 2015. The court denied the motion.
2. Defendant's Faretta Motion
After the court denied his fifth Marsden motion (as to attorney Rutledge) on January 8, 2015, defendant asked that the court permit him to represent himself. After advising defendant that he should carefully consider whether he wanted to represent himself, and after providing him with a questionnaire and waiver advisement to review and complete, the court scheduled a hearing on defendant's Faretta motion for January 22, 2015. In doing so, the court stated that it was giving defendant "two weeks to think about this."
At the hearing on January 22, 2015, defendant presented a signed waiver form with advisements and waiver of right to counsel. He acknowledged in the form, inter alia, that "no continuance will be allowed without a showing of good cause, and that such request made just before trial will most likely be denied." Defendant, in the form and at the hearing, stated a desire to represent himself. But he also stated at least seven times at the hearing that he could not be ready to go to trial as a self-represented defendant by March 9, 2015. He stated that he would need time to (1) obtain his files from Rutledge, (2) determine what the attorney had done on his behalf, (3) meet with the investigator previously used by Rutledge, and (4) prepare for trial based upon what he learned from the files as to Rutledge's efforts. Defendant also complained that he did not have adequate prescription glasses for reading, there was no law library at his disposal in jail, and he had concerns about receiving adequate funds for investigation.
After hearing argument, the court denied defendant's Faretta motion. The court stated that it would not grant defendant's self-representation request if he would not be ready for trial on the established March 9 trial date. The trial judge explained: "We have had this matter set for trial for quite a significant period of time. [¶] And your request to represent yourself at this point is one where you are saying that it would require you to delay this trial. And that is not something that the court or the cases allow. [¶] If you are asking for a last minute request to represent yourself, you need to be able to move forward with the trial as it is currently set. And it's set some six to seven weeks away . . . . [¶] If you were ready to proceed to trial on . . . the trial date that's set, I would be happy to go further into your request to represent yourself."
The trial judge explained further to defendant: "I acknowledge and recognize that you have a right to represent yourself. But not when that right impinges on the reasonable progress of this case. The case has been pending for quite sometime [sic]." The court reiterated that defendant had the constitutional right to represent himself, "[b]ut that right has to be weighed against other . . . things that relate to the process and to the proceedings. [¶] If you had made this motion and had stuck by this motion several months ago, prior to us setting this trial date, we would be in a completely different situation than we are today." The trial judge quoted from the written waiver of counsel signed by defendant, stating, " 'I understand that no continuance will be allowed without a showing of good cause.' And what I'm telling you is, serving as your own attorney is not good cause." As an additional consideration—one related to the timing of defendant's Faretta request—the trial judge explained: "My concern is that you are making this at a late date . . . . And honestly, my other concern is that you are intending to use this to delay this trial unnecessarily. That you are using this to manipulate the process of the court." The court concluded: "So based on that [defendant's statement he is not prepared to proceed to trial on the date set], if you cannot move forward at that time in representing yourself, then the court will respectfully deny your request to represent yourself."
3. No Error in Denial of Faretta Motion
Defendant contends the court committed reversible error in its denial of his motion to represent himself at trial. He argues that he made a timely, unequivocal Faretta motion in which he knowingly and intelligently waived the right to counsel, and that the court therefore had no discretion to deny it. He asserts that this constituted a denial of his Sixth Amendment right to present his own defense and the error is reversible per se.
a. Applicable Law
In Faretta, supra, 422 U.S. at page 821, the United States Supreme Court recognized that "[t]he Sixth Amendment, when naturally read, . . . implies a right of self-representation." This conclusion was rooted in the notion that "[t]he right to defend [provided in the Sixth Amendment] is given directly to the accused; for it is he [or she] who suffers the consequences if the defense fails." (Id. at pp. 819-820.) The high court observed that while it was undoubtedly true that in most instances the defendant would be better served by having the guidance of counsel rather "than by [his or her] own unskilled efforts," because "[t]he defendant . . . will bear the personal consequences of a conviction . . . [he or she] must be free personally to decide whether in his [or her] particular case counsel is to his [or her] advantage." (Id. at p. 834.) Thus, the high court concluded in that case because the defendant, "weeks before trial, . . . clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel" (id. at p. 835), and the record showed that this waiver of counsel was knowing and voluntary by a competent and literate person, the denial of self-representation deprived him of the constitutional right to conduct his own defense. (Id. at pp. 834-835.)
Following Faretta, our state Supreme Court has held that "in order to invoke the constitutionally mandated unconditional right of self representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted (Windham).) It held further that after the "defendant has chosen to proceed to trial represented by counsel," his or her self-representation motion is "addressed to the sound discretion of the court." (Id. at p. 128, fn. omitted.) Although the United States Supreme Court "has never delineated when a motion may be denied as untimely" (People v. Lynch (2010) 50 Cal.4th 693, 722 (Lynch)), "eve of trial" motions have been ruled untimely (ibid.), while motions "made long before trial [have been found] timely. [Citation.]" (Id. at p. 723.) Where a Faretta motion is made between those "two extreme time periods" (id. at p. 723), the trial court may assess its timeliness based upon "the totality of the circumstances . . . [including] the time between the motion and the scheduled trial date . . . [as well as] such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Id. at p. 726.)
Lynch, supra, 50 Cal.4th 693 was overruled on another point in People v. McKinnon (2011) 52 Cal.4th 610.
In People v. Marshall (1997) 15 Cal.4th 1 (Marshall), our Supreme Court stressed the importance of the requirement that a defendant's assertion of the right to self-representation be unequivocal. It noted that "[s]everal lower courts have declared that a [Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. [Citations.]" (Marshall, supra, 15 Cal.4th at p. 21.) The court in Marshall concluded: "[I]n order to protect the fundamental constitutional right to counsel, one of the trial court's tasks when confronted with a motion for self-representation is to determine whether the defendant truly desires to represent himself or herself. [Citations.] The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (Id. at pp. 22-23; see also People v. Roldan (2005) 35 Cal.4th 646, 683.)
The California Supreme Court has reiterated that the constitutional right of a criminal defendant to self-representation "is not absolute. '[The] government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his [or her] own lawyer.' [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 253 (Williams), quoting Martinez v. Court of Appeal (2000) 528 U.S. 152, 161; see also Lynch, supra, 50 Cal.4th at p. 721.) In addition to the fact that a Faretta motion may be denied as untimely or unequivocal, "[t]he court may [also] deny a request for self-representation that is . . . intended to delay or disrupt the proceedings." (People v. Butler (2009) 47 Cal.4th 814, 825 (Butler).)
b. Whether there was Faretta error
As noted, the California Supreme Court has held "the right of self-representation is not absolute" and the state's " 'interest in ensuring the integrity and efficiency of the trial' " may in some instances outweigh the defendant's self-representation right. (Williams, supra, 58 Cal.4th at p. 253; see also People v. Espinosa (2016) 1 Cal.5th 61, 77, fn. 4.) Thus, a Faretta request may be denied when it "is . . . intended to delay or disrupt the proceedings. [Citation.]" (Butler, supra, 47 Cal.4th at p. 825; see also Lynch, supra, 50 Cal.4th at p. 722; Marshall, supra, 15 Cal.4th at p. 27 [concluding that defendant's statements "did not represent an unequivocal and sincere invocation of the right of self-representation, and that they were made for the purpose of delay rather than in a sincere effort to secure self-representation."].)
Although the Supreme Court in Butler did not specify the standard of review involved for a trial court's denial of a self-representation request based upon a finding it was "intended to delay or disrupt the proceedings" (Butler, supra, 47 Cal.4th at p. 825), its use of the phrase "may deny" is indicative that the trial court may exercise its discretion in denying the request on this basis. (See, e.g., People v. Arjon (2004) 119 Cal.App.4th 185, 191 [use of "may" in Pen. Code, § 997 is indicative that Legislature gave trial court discretion to hear pretrial § 995 motion after defendant has entered plea]; People v. Ciancio (2003) 109 Cal.App.4th 175, 196 [use of " 'may' " in Welf. & Inst. Code, § 6602.5, subd. (a) indicative that trial court has discretion to place sexually violent predator in state hospital after probable cause determination]; Lewis v. Clarke (2003) 108 Cal.App.4th 563, 569 [" '[m]ay' ordinarily is construed as permissive, that is, a grant of discretion, while 'shall' ordinarily is construed as mandatory"].) And as the Supreme Court explained in People v. Welch (1999) 20 Cal.4th 701 (Welch): "[A] trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant's right to self-representation and the exercise of that discretion 'will not be disturbed in the absence of a strong showing of clear abuse.' [Citations.] We see no reason not to use the same deference when it comes to deciding whether a defendant's motion for self-representation should be granted in the first instance." (Id. at p. 735; see also People v. Burton (1989) 48 Cal.3d 843, 853 (Burton) [court's denial of Faretta motion based on finding it is made for purposes of delay is "within the court's discretion"].) Therefore, we determine here whether the trial court abused its discretion by denying defendant's Faretta request based upon it having been intended to delay the proceedings.
Here, there was ample evidence from which the trial court reasonably concluded that defendant made the Faretta request for purposes of delay and to obstruct the proceedings. This evidence included the length of time the proceedings had been pending (over three years), defendant's dissatisfaction with at least three attorneys to whom the court over time had assigned his case, his repetitive and numerous Marsden motions, his failure to make the Faretta request at an earlier date, and his repeated statements at the Faretta hearing that he could not be ready to represent himself at the trial scheduled six weeks hence. As noted by the Ninth Circuit Court of Appeals, "[A] court may consider events [preceding] a motion for self-representation to determine whether the request is made in good faith or merely for delay. [Citation.]" (U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669, 675, citing Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784.)
The California Supreme Court has cited U. S. v. Flewitt, supra, 874 F.2d 669 with approval in People v. Valdez (2004) 32 Cal.4th 73, 103, and in Marshall, supra, 15 Cal.4th at p. 22. Further, it has cited Fritz v. Spalding, supra, 682 F.2d 782 with approval in Burton, supra, 48 Cal.3d at page 853.
Defendant indicated his dissatisfaction with various attorneys assigned to represent him, making a total of 10 Marsden motions between April 2012 and March 2015. Given this constant dissatisfaction with appointed counsel, defendant could have made a request to represent himself long before he did so on January 8, 2015. Moreover, the record shows that he contemplated making a Faretta request long before he actually did so. At the January 22, 2015 hearing on defendant's Faretta request, defendant noted that he had previously (in August 2014) told another attorney from the Alternate Defender's Office that, due to his dissatisfaction with Rutledge, he "was strongly considering taking [his] own case."
Moreover, defendant stated repeatedly at the January 22, 2015 Faretta hearing that he could not be ready for trial on March 9, 2015. The court asked defendant several times concerning his trial readiness and reiterated that if his Faretta request was tied to the expectation of a trial continuance, the request would be denied. And, although defendant was given ample opportunity at the hearing, he failed to give any indication as to when, if not on March 9, 2015, he would in fact be ready for trial as a self-represented defendant. (Cf. People v. Ruiz (1983) 142 Cal.App.3d 780, 787-792 [upholding trial court's denial of Faretta request made six days before trial where request was necessarily conditioned on trial continuance].)
In support of his claim of error, defendant relies on People v. Miller (2007) 153 Cal.App.4th 1015 (Miller). There, the appellate court held that a defendant's Faretta request made after trial but two months before sentencing was timely and should have been granted. (Id. at pp. 1022-1024.) While the timing of the Faretta request in Miller and in this case—two months before the sentencing hearing and trial, respectively—is similar, other circumstances are not. In Miller, there was no history of dilatory conduct, repetitious Marsden motions, or threats to disrupt the proceedings. And, significantly, in Miller, there was no trial court finding that the Faretta request was intended to delay or disrupt the proceedings. To the contrary, the defendant in Miller did not request a continuance and stated he would be ready on the assigned day for sentencing. (Id. at p. 1020.) Miller is distinguishable and does not support defendant's position.
The trial court concluded that defendant "intend[ed] to use [his Faretta request] to delay this trial unnecessarily . . . [and] to manipulate the process of the court." (See People v. Rudd (1998) 63 Cal.App.4th 620, 626 [trial court has discretion to deny Faretta request that is "merely a tactic designed to cause delay"]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689 [trial court did not abuse discretion in conditioning grant of Faretta request on defendant's proceeding to trial without a continuance, finding that his Faretta request tied to a continuance "a delaying tactic and not because he needed time to prepare a defense"].) The court reiterated this conclusion concerning the Faretta request posttrial, at the hearing on defendant's motion for new trial. There was ample basis for the court's finding that defendant's request to represent himself was made for purposes of delay and to manipulate the proceedings. Accordingly, finding no abuse of discretion, we will not disturb the court's denial of the Faretta request. (See Butler, supra, 47 Cal.4th at p. 825; Marshall, supra, 15 Cal.4th at p. 27.)
B. Admission of Uncharged Sex Crimes Evidence
1. Background
Defendant contends that the court erred in admitting evidence of prior uncharged sex crimes allegedly committed by defendant involving Doe 2 and Doe 3. The evidence was admitted pursuant to section 1108. (Hereafter, this evidence is sometimes collectively referred to as the section 1108 evidence.) Defendant contends that the court abused its discretion in permitting the jury to hear this evidence of uncharged sex crimes because it was "highly inflammatory" and its probative value was substantially outweighed by the probability of its undue consumption of time and that its admission would "create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
The admissibility of the section 1108 evidence was considered by the court in two pretrial hearings. In or about August 2014, Rutledge filed a detailed motion in limine on behalf of defendant seeking to exclude this evidence. The People submitted a brief in response, and Rutledge filed a reply brief. At a pretrial hearing on August 22, 2014, after hearing argument, the court ruled that the section 1108 evidence was admissible. The court again reviewed the in limine motions on the first day of trial on March 9, 2015. Its rulings were the same as those made on August 22, 2014.
2. Applicable Law
Section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." As explained by our Supreme Court, section 1108 was enacted "to expand the admissibility of disposition or propensity evidence in sex offense cases." (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) "Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes." (Id. at p. 915.) Such evidence "constitutes relevant circumstantial evidence that [the defendant] committed the charged sex offenses." (Id. at p. 920.) Evidence of prior sexual offenses under section 1108 may be considered for any relevant purpose, "subject only to the prejudicial effect versus probative value weighing process required by section 352." (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Section 352 provides that 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." In cases involving evidence potentially admissible pursuant to section 1108, trial courts "must engage in a careful weighing process under section 352." (Falsetta, supra, 21 Cal.4th at p. 917.)
Our Supreme Court has explained that the legislative history of section 1108 informs us that the statute "was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility." (Falsetta, supra, 21 Cal.4th at p. 911.) The Falsetta court explained further that "the Legislature's principal justification for adopting section 1108 was a practical one: By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes. [Citation.]" (Id. at p. 915.)
In Falsetta, the court explained that various factors inform "the trial court's discretionary decision to admit propensity evidence under sections 352 and 1108." (Falsetta, supra, 21 Cal.4th at p. 919.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Id. at p. 917.)
We review the trial court's decision to admit evidence under sections 1108 and 352 for an abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295.) Under this deferential standard, the trial court's ruling will " 'not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
3. No Error in Admission of Section 1108 Evidence
a. Doe 2 Evidence
i. Relevance/Similarity
In evaluating the admissibility of the uncharged sex crimes evidence involving Doe 2 occurring in April 1993, we initially address the factors of "nature, relevance . . . [and] similarity to the charged offense." (Falsetta, supra, 21 Cal.4th at p. 917.) Included among the crimes Doe 2 alleged defendant committed was the crime of forcible rape, the same as one of the charged crimes. There were similarities in the circumstances involved with the two women. In each instance, defendant cultivated the relationships by initially seeking out the women in public places—at Carmel Beach with Doe 2 and at a Walmart with Jane. In each case, defendant held a position of trust with the women. He had known Doe 2 for approximately five months, and she had trusted him when he assured her repeatedly that he would respect her wishes that their friendship remain a Platonic one. Defendant had known Jane (excluding a brief period when they first met) for approximately eight months, and after they married in November 2011 (shortly before the commission of the first charged crime), there was a position of trust between husband and wife. Defendant took advantage of that position of trust with Doe 2, as noted by the court, by "lur[ing] his way into her bed when he complained he was too tired to drive home" after she had invited him to dinner. He likewise abused his position of trust with his wife by forcibly raping her on November 22, and forcibly performing oral sex on her and attempting to force her to perform oral sex on him on December 23, 2011. The trial court thus properly concluded the uncharged sex crimes evidence concerning Doe 2 was relevant and had similarities to the charged offenses.
Although no charges were ever filed against defendant concerning the April 1993 incident, based upon Doe 2's testimony, there were potentially multiple sex crimes committed. We will therefore refer to the uncharged crimes alleged by Doe 2 in the plural.
ii. Remoteness
The factor of "possible remoteness" (Falsetta, supra, 21 Cal.4th at p. 917) of the uncharged sex offense concerns "the question of predisposition to commit the charged sexual offenses." (People v. Harris (1998) 60 Cal.App.4th 727, 739.) There are no specific time limits that dictate a finding of remoteness. (People v. Branch (2001) 91 Cal.App.4th 274, 284; see, e.g., ibid. [uncharged crime occurred 30 years prior to charged offense]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [uncharged offenses occurring 15 and 22 years before trial held not too remote].) The fact that the defendant may have been incarcerated for a substantial period of time between the commission of the uncharged offense and the charged offense may argue against the defendant's claim of remoteness. (See People v. Wesson (2006) 138 Cal.App.4th 959, 970 [defendant was incarcerated for 11 years after commission of uncharged offense, which occurred 13 years prior to charged offense]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 (Pierce) [although uncharged offense occurred 23 years earlier, defendant incarcerated for at least 12 years afterward].)
Here, although the uncharged sex crimes involving Doe 2 allegedly occurred in April 1993—some 18 years prior to the charged offenses—defendant, as pointed out by the court, was incarcerated for approximately eight years between the two dates. The court properly concluded that possible remoteness was not a factor that favored excluding the uncharged sex crimes evidence.
iii. Certainty of Commission
As to the "degree of certainty of [the uncharged crime's] commission" (Falsetta, supra, 21 Cal.4th at p. 917), the trial judge observed that she had presided over the conditional examination of Doe 2 taken in May 2014, and she had found her testimony to be believable. We give great deference to the trial judge on this point. (See People v. Jones (1990) 51 Cal.3d 294, 314 [witness credibility within "the exclusive province" of trier of fact].) Moreover, a conviction is not required for the uncharged conduct to be admissible under section 1108. (People v. Johnson (2000) 77 Cal.App.4th 410, 419, fn. 6.)
iv. Potential Confusion
The uncharged sex crimes involving Doe 2 were separate and distinct from the 2011 charged crimes involving defendant's wife, Jane. There was thus little likelihood—as concluded by the trial court—that introduction of evidence of the uncharged crimes related to Doe 2 would cause jurors to be confused, distracted, or misled.
v. Consumption of Time/Defendant's Burden
Defendant argues that presentation of the uncharged sex crimes evidence concerning Doe 2 should have been excluded because it involved an undue amount of trial time. We disagree. The evidence consisted of the testimony of only one witness, Doe 2, consuming 67 pages of the court transcript. And the burden placed upon defendant to respond to that testimony—as evidenced by the fact that his response consisted of defendant's testimony (five questions and answers consuming less than one page of the court transcript)—was very minimal.
vi. Prejudice
Defendant emphasizes the likelihood that evidence of the uncharged sex crimes involving Doe 2 had a prejudicial impact on the jurors in this instance. In addressing this claim of undue prejudice here, we first recite important principles enunciated by the Supreme Court: " ' "Prejudice" as contemplated by . . . section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption " 'substantially outweigh' " the probative value of relevant evidence, a section 352 objection should fail. [Citation.] " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 438-439 (Doolin); see also People v. Karis (1988) 46 Cal.3d 612, 638.)
The fact that defendant was neither charged nor convicted of any crimes concerning Doe 2 raised a possible danger of prejudice in that the jury might have wished to punish defendant for the uncharged crimes by rendering a guilty verdict for the charged crimes. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) But where "[t]he testimony describing defendant's uncharged acts . . . [is] no more inflammatory than the testimony concerning the charged offenses[, t]his circumstance decreased the potential for prejudice." (Ibid.; see also People v. Morton (2008) 159 Cal.App.4th 239, 247.) The trial court made such a finding here, noting that the uncharged sex crimes relating to Doe 2 were not "particularly inflammatory," and (unlike the charged crimes) were not those "where the defendant has beat[en] the victim up." (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1140 [testimony of prior domestic violence that was no more inflammatory than the charged crime held admissible under §§ 1109 and 352].) Further, any risk that the jury might punish defendant for the uncharged crimes involving Doe 2 was mitigated by jury instructions given by the court, specifically, instructions patterned on CALCRIM No. 1191A, concerning the limited purpose for which the jury could consider the section 1108 evidence. (See People v. Frazier (2001) 89 Cal.App.4th 30, 42 [risk of jury punishing defendant for uncharged crimes "counterbalanced" by instructions, including instruction that jury must not convict defendant of uncharged crime].)
The court instructed the jury, in accordance with CALCRIM No. 1191A, as follows: "The People presented evidence that the defendant committed the crimes of rape; rape by foreign object, [and] assault with intent to commit rape that were not charged in this case. These crimes are defined for you in these instructions. You may consider this evidence to conclude that the defendant was disposed to commit sexual assault offenses only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. [¶] . . . [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit spousal rape, forcible oral copulation and assault with intent to commit forcible oral copulation, as charged here. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of spousal rape, forcible oral copulation and assault with intent to commit forcibly oral copulation. The People must still prove these charges beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose of, one, determining the defendant's credibility. And two, regarding proof of the prior conviction allegations that I will instruct you on in Instruction 3100."
vii. Conclusion
Based upon consideration of the various Falsetta factors, there was no error in the admission of the uncharged sex crimes evidence concerning Doe 2 pursuant to section 1108. The trial court did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the probability that its admission would "(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
b. Doe 3 Evidence
i. Relevance/Similarity
Some of the 1996 crimes involving Doe 3 of which defendant was convicted, including forcible rape, were the same as the charged crimes here. Further, as noted by the trial court, there were issues of similarity as between the two victims, Doe 3 and Jane. They were of a similar age, they were both Hispanic, and they both had limited English-speaking skills. In addition, while their respective relationships with defendant were very different, each woman had a relationship of trust and vulnerability relative to defendant. Doe 3 was solicited by defendant under the guise of performing work for his business at a time when she was greatly in need of money. After being kind to her, taking her in his van to a restaurant, and buying her lunch, when they arrived at the house defendant supposedly wanted her to clean, he locked her inside, prevented her from leaving, and raped her. Likewise, by virtue of being married to defendant, Jane's relationship with him involved trust as well as, the court noted, "some amount of secrecy and privacy . . . similar to the 1996 event with Jane Doe Number [3]." And as the court also observed, in each instance, after the victim placed her trust and confidence in defendant, his "demeanor change[d] when he [was] in the private location of secrecy or safety . . . where the kindness and attentiveness change[d] and defendant bec[ame] aggressive and violent."
ii. Remoteness
As was true with the section 1108 evidence concerning Doe 2, the court properly found that the possible remoteness of the prior offenses—in this case occurring in 1996, 15 years before the charged offenses—did not suggest the evidence should have been excluded. This determination was likewise based in part upon the fact that defendant had been incarcerated for approximately eight years between 1997 and 2005. (See Pierce, supra, 104 Cal.App.4th at p. 900.)
iii. Certainty of Commission
Defendant was convicted, sentenced, and served a prison term for the crimes involving Doe 3. There was thus no issue concerning the certainty of the prior crimes' commission that would suggest its exclusion. (See Falsetta, supra, 21 Cal.4th at p. 917.)
iv. Potential Confusion
The trial court determined that there was little likelihood that admission of the uncharged sex crimes evidence concerning Doe 3 would result in the jurors' confusion or distraction. The court properly found that any such concerns were mitigated by defendant's having been convicted and having served a prison sentence for the prior uncharged crimes. (Cf. People v. Balcom (1994) 7 Cal.4th 414, 427 [uncharged crime evidence properly admitted under § 1101 to show common design or plan, where "attention of the jury was not diverted to . . . whether or not defendant had committed the uncharged offenses, because that fact had been determined conclusively by . . . conviction"].)
v. Consumption of Time/Defendant's Burden
Defendant asserts that permitting evidence of the uncharged crimes involving Doe 3 resulted in the undue consumption of time. The evidence was presented through the testimony of one witness, Doe 3, consisting of 48 pages of the court transcript. And the burden placed upon defendant to respond to that testimony—as evidenced by the fact that his response consisted of defendant's testimony (five questions and answers consuming less than one page of the court transcript (aside from modest cross-examination that followed)—was very minimal.
vi. Prejudice
Defendant emphasizes the prejudice he claims to have been associated with the introduction of the uncharged crimes evidence involving Doe 3. The court, in conducting a weighing under section 352 of the probative value of the evidence against its potential prejudicial effect, concluded that the evidence was not excludable. And in its analysis, the court considered that the potential for prejudice was mitigated by the fact that defendant had been convicted and had served a prison sentence for the prior uncharged crimes relating to Doe 3. As our Supreme Court has held: "[T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses." (Falsetta, supra, 21 Cal.4th at pp. 916-917; see also People v. Loy (2011) 52 Cal.4th 46, 61.) Further, the court, while acknowledging the evidence was inflammatory, indicated that "any offense that is a prior sexual conduct would be inflammatory. [Sic.]" (See Doolin, supra, 45 Cal.4th at pp. 438-439 [fact that challenged evidence is inconvenient to defendant or is damaging to his or her case does not render it unduly prejudicial under § 352].) Moreover, defense counsel in closing argument urged the jury that it would be improper to convict defendant of the charged crimes as punishment for his commission of the prior crimes involving Doe 3.
vii. Conclusion
There was no error in the admission of the uncharged sex crimes evidence concerning Doe 3 pursuant to section 1108. The record reflects that the trial court gave thoughtful consideration of the factors enunciated by the Supreme Court in Falsetta. The court did not abuse its discretion in determining that the probative value of the uncharged crime evidence was not substantially outweighed by the probability that its admission would "necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
C. Admission of Harassment/Restraining Order Evidence (Doe 2)
1. Defendant's Contentions
Defendant contends the trial court erred as well in the admission of evidence that Doe 2, after her alleged rape by defendant, was harassed and stalked by defendant, resulting in Doe 2's reporting the issue to the police, hiring an attorney, and obtaining a restraining order. He argues that this testimony was improper because section 1108 is limited to the introduction of uncharged acts of sexual misconduct and is inapplicable to nonsexual misconduct such as stalking or harassment.
Defendant contends further the court erred in permitting the introduction of trial exhibit 8, the restraining order obtained by Doe 2 and accompanying documents related thereto. Defendant identifies the objectionable material in trial exhibit 8 that was prejudicial to his case as including the following out-of-court statements: (1) by Doe 2's friend, recounting a telephone conversation with defendant in which he made disparaging remarks about Doe 2 (" 'Has the doctor fixed that bitch's head yet,' " and " 'What are you doing hanging around that fat bitch[? Y]ou must be a faggot.' "); (2) by Doe 2's former landlady, who had disclosed that defendant had told her that Doe 2 "had engaged in wild parties at her house and had participated in porno movies at the house"; (3) by someone from the Carmel Police Department who told Doe 2 that defendant had a criminal record; (4) by Doe 2's attorney, Douglas Oldfield, who stated that defendant had "date-raped [Doe 2] and then began a pattern of abusive telephone calls to [her] and her friends and business acquaintances"; (5) by Oldfield that defendant had telephoned Doe 2 on December 26, 1994, and had asked " 'What did Santa bring you this year, a collar or a bone?' "; (6) in a Monterey Police Department report noting that Doe 2 had reported the December 26, 1994 telephone call from defendant in violation of a restraining order and that defendant had "sexually assaulted her about a year and a half ago [and h]e then began making a series of obscene phone calls to her"; and (7) by an agent of the Monterey County Sheriff's Department stating she had been unable to serve a writ of execution on defendant and that a judgment deficit of $1,038.22 was outstanding. Defendant argues that these statements constituted inadmissible hearsay and were excludable as testimonial statements of third party witnesses whom defendant had no opportunity to cross-examine in violation of the Sixth Amendment under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).)
Defendant argues further that, assuming the objections asserted at trial concerning the admission of the testimony of Doe 2 (including the introduction of trial exhibit 8) were insufficient, the claim is nonetheless cognizable on appeal because he received ineffective assistance of counsel. We conclude that the appellate challenges to the admission of the testimony of Doe 2 concerning defendant's alleged harassment and her obtaining a restraining order, and the introduction of trial exhibit 8 (hereafter, collectively the harassment/restraining order evidence) were forfeited, and we reject defendant's ineffective assistance of counsel argument.
2. Trial Exhibit 8
Before addressing defendant's challenge to the admission of the harassment/restraining order evidence, we address an issue raised by the Attorney General. The Attorney General asserts that there is considerable doubt that trial exhibit 8 consisted of over 100 pages of documents relating to Doe 2's restraining order proceeding (as contended by defendant). Rather, the Attorney General argues, the actual trial exhibit presented to the jury was only the order to show cause and temporary restraining order and the attachment to application and declaration for order (seven pages). The Attorney General bases this contention on (1) the trial court's having referred to the exhibit at the time it was admitted at trial as "the restraining order and related documents related to Jane Doe Number [2]"; and (2) the fact that the documents (107 pages) following the first seven pages of the exhibit "are separately combined and not only do not contain an exhibit tag, but include documents that do not appear to relate to Jane Doe [2's] restraining order." The Attorney General argues that "[w]hile it appears that this material [the 107 pages] was stored with the exhibit admitted at trial as People's Exhibit 8, there is no reason to believe it was admitted as part of that exhibit or that the jury was able to review these pages while deliberating."
The Attorney General identifies these documents as consisting of "only four pages." But because three of the pages are two-sided, there are in fact a total of seven pages.
Trial exhibit 8, transmitted by the superior court to this court, consists of 114 total pages. The 107 pages affixed behind the seven initial pages (order to show cause and temporary restraining order and the attachment to application and declaration for order) do generally relate to Doe 2's restraining order and consisted of various pleadings that were all filed in the superior court in the same proceeding initiated by Doe 2 with her application for a temporary restraining order. Further, we understand the trial court's identification of the exhibit as "the restraining order and related documents" to be a shorthand reference, rather than an expression that the documents were all ones filed in connection with the initial hearing in which Doe 2 sought a restraining order. And the fact that the 107 pages do not contain a separate exhibit label identifying them as being part of trial exhibit 8 is of no consequence. It is commonplace for a multiple-page trial exhibit to include an exhibit identification on only the first page.
The 107 pages of documents attached to the seven initial pages of trial exhibit 8 consist of (1) a proof of service of the order and application, (2) the court's findings, and restraining order after hearing, (3) a minute order from a hearing of January 14, 1994, (4) a proof of service of the findings and restraining order, (5) an order to show cause re contempt and accompanying declaration relative to the prior restraining order, (6) clerk's minutes of January 6, 1995, concerning an order to show cause re contempt, (7) a second order to show cause re contempt and accompanying declaration relative to the prior restraining order, (8) a proof of service of the second order to show cause, (9) defendant's responsive declaration to order to show cause, (10) defendant's objection to evidence submitted in connection with the order to show cause, (11) reply brief and declarations submitted on Doe 2's behalf relative to the order to show cause, (12) two further declarations submitted on defendant's behalf in opposition to the order to show cause; (13) further evidentiary objections submitted on defendant's behalf, (14) a minute order of February 10, 1995, from the hearing on the order to show cause, (15) an order of contempt filed February 27, 1995, (16) a notice of entry of the order of contempt, (17) a writ of execution, and (18) a notice of filing of bankruptcy petition on behalf of defendant.
The clerk of the court is required to retain "[a]ll exhibits which have been introduced or filed in any criminal action or proceeding." (Pen. Code, § 1417.) There is a presumption "that official duty has been regularly performed." (§ 664.) This presumption under the Evidence Code is applicable to court clerks. (People v. Martinez (2000) 22 Cal.4th 106, 125.) Thus, the Supreme Court has held that "[u]nder Evidence Code section 664, we presume the clerk 'regularly performed' [the clerk's] official duty and submitted to the jury only the admissible portions of any exhibits which they requested. [Citations.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1056; see also People v. Jackson (1996) 13 Cal.4th 1164, 1213.) Here, it is presumed that the superior court clerk properly identified and maintained the documents consisting of trial exhibit 8, and that the clerk properly transmitted the documents comprising that trial exhibit to this court. The Attorney General has made no showing rebutting that presumption.
3. Forfeiture of Appellate Claim
Section 353 provides in relevant part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." (Italics added.) As our high court has explained: "In accordance with [section 353], we have consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable. [Citation.]" (People v. Seijas (2005) 36 Cal.4th 291, 302.) The rationale for this principle of forfeiture in the context of criminal cases is that "[t]he objection requirement is necessary . . . because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' [Citation.] 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' [Citation.]" (People v. Partida (2005) 37 Cal.4th 428, 434.)
The testimony of Doe 2 presented at trial was entirely through her conditional examination taken in May 2014 in which defendant and his trial counsel participated. Thus, the totality of Doe 2's prospective testimony, including her discussion of defendant's alleged harassment, her obtaining a restraining order, and the identification of the documentary evidence concerning the restraining order, was completely known to defendant and his counsel 10 months before trial. This knowledge notwithstanding, defense counsel did not object to the harassment/restraining order evidence on the basis of its being nonsexual conduct outside the purview of section 1108 at any of the following opportunities: (1) in his August 2014 written in limine motion specifically seeking exclusion of the section 1108 evidence on stated grounds that it was inadmissible under section 352; (2) in his reply memorandum in support of his in limine motion; (3) at the first hearing concerning potential exclusion of the section 1108 evidence on August 22, 2014; (4) at the second hearing concerning potential exclusion of the section 1108 evidence on March 9, 2015; (5) at the time Doe 2's testimony was presented to the jury; or (6) at the time the prosecution offered trial exhibit 8 into evidence.
Thus, defendant forfeited his appellate challenge to the harassment/restraining order evidence on the ground that it was nonsexual conduct not made admissible under section 1108, because he failed to object on that basis at trial. (Doolin, supra, 45 Cal.4th at p. 438 [where evidentiary objection at trial was upon a different ground than one advanced on appeal, appellate challenge to evidence is not preserved]; see also Pierce, supra, 104 Cal.App.4th at p. 898 [appellate claim that assault with intent to commit rape is not a sexual offense under section 1108 forfeited, where argument was not raised at trial].) Further, he forfeited his appellate challenge to the introduction of trial exhibit 8 on the bases—not raised below—that the exhibit included statements that were inadmissible hearsay and ones that were testimonial out-of-court statements inadmissible because they violated defendant's constitutional right to confrontation of witnesses under Crawford. (See (People v. Tafoya (2007) 42 Cal.4th 147, 166 (Tafoya) [appellate challenge that ruling prohibiting cross-examination violated constitutional rights under the confrontation clauses of the federal and state Constitutions forfeited, where ground not asserted at trial]; People v. Harrison (2005) 35 Cal.4th 208, 239 (Harrison) [hearsay challenge forfeited, where objection at trial to evidence was upon different ground]; but see People v. Rangel (2016) 62 Cal.4th 1192, 1215 [where case was tried before Crawford, appellate claim not forfeited due to failure to raise confrontation clause objection at trial].)
Defendant cites People v. Nguyen (2010) 184 Cal.App.4th 1096 (Nguyen) in support of his position that his claim was preserved on appeal. In Nguyen, the appellate court concluded that while the trial court did not abuse its discretion under sections 1108 and 352 in admitting prior uncharged sex offenses involving the victim, T.V., the court erred in admitting evidence of nonsexual uncharged offenses, namely, two violent attacks on T.V.'s friend (and later husband), vandalism of the victim's car and theft of the victim's car key, stalking T.V., and attempting to break into T.V.'s house. (Nguyen, at pp. 1119-1120.) The appellate court held that while defendant did not distinguish these nonsexual offenses from the sexual offenses in opposing the introduction of the evidence, the trial court nonetheless should have excluded the former offenses as inadmissible under section 1108. (Nguyen, at p. 1120.)
The circumstances in Nguyen are distinguishable from this case in that (1) the case included separate acts of violence involving the victim's friend unrelated to the sexual offenses, and (2) there was no contention by respondent that defendant had forfeited the claim of error by failing to argue the nonsexual conduct was inadmissible under section 1108. Because here, the People do assert that defendant has forfeited the challenge that the harassment/restraining order evidence was nonsexual conduct inadmissible under section 1108, and because we perceive the contention to be a separate and distinct ground from the objection raised below (i.e., inadmissibility under section 352 because the probative value was substantially outweighed by the probability of undue prejudice, etc.), we conclude the appellate challenge to the admissibility of the harassment/restraining order evidence is forfeited. Moreover, as Nguyen did not concern hearsay and confrontation clause challenges to the admissibility of court documents regarding a restraining order obtained by the victim, it has no bearing on our conclusion that defendant forfeited the challenge to trial exhibit 8 on those grounds. (See Tafoya, supra, 42 Cal.4th at p. 166; Harrison, supra, 35 Cal.4th at p. 239.)
4. Ineffective Assistance of Counsel
a. Applicable Law
A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant not simply to "bare assistance" but rather to effective assistance. (People v. Jones (1991) 53 Cal.3d 1115, 1134.) This constitutionally adequate assistance requires that the attorney diligently and actively participate in the complete preparation of the client's case, and investigate all defenses of law and fact. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on another ground, People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
An ineffective assistance of counsel claim requires a showing that "counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial." (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "[T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.) This means that the defendant "must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to [the] defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.] " (People v. Kipp (1998) 18 Cal.4th 349, 366 (Kipp), quoting Strickland, supra, 466 U.S. at p. 686.)
" 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . .' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland, supra, 466 U.S. at p. 689.) The failure of counsel to object to certain evidence is rarely a successful basis for reversal of a conviction on ineffective assistance grounds. (People v. Boyette (2002) 29 Cal.4th 381, 424.) And if "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged," we must reject the claim on appeal "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (Pope, supra, 23 Cal.3d at p. 426.)
The "prejudice" element requires a showing that "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201.) Prejudice requires a showing of "a ' "demonstrable reality," not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Defendant's burden of establishing ineffective assistance of counsel is a significant one: "Surmounting Strickland's high bar is never an easy task. [Citations.]" (Padilla v. Kentucky (2010) 559 U.S. 356, 371.) And in deciding an ineffective assistance claim, the reviewing court need not inquire into the two components (deficient performance and prejudice) in any particular order. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020.) "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697.)
b. Prejudice Not Shown
We address the second Strickland prong here: prejudice. The primary focus of the case was Jane's testimony. She presented strong and direct evidence that defendant committed the charged offenses. Her testimony was corroborated in part by her friend, Jasmin, who confirmed that she spoke with Jane by telephone on one occasion in which Jane said, "in a desperate manner" that she couldn't talk because defendant "was trying to perform oral sex on [Jane] and . . . he wanted her to tell [Jasmin] what he was doing to her." Jasmin also corroborated Jane's testimony concerning defendant's controlling nature, i.e., defendant telling her in Jane's presence that he did not like friends of his wife or girlfriend visiting at his home or calling Jane. And Jasmin witnessed an instance in which she saw Jane—inappropriately dressed and crying—walking on the sidewalk to pay for her phone because defendant had taken it away from her.
Further, Jane's testimony concerning having been physically injured by defendant on the evening of December 23, 2011, was corroborated by (1) Jasmin, who took Jane to the hospital, observed that one of her eyes was very swollen, and was told by Jane that she was in pain; (2) Officer Swinscoe, who observed physical injuries to Jane that night; and (3) the physician's assistant (Price) who treated Jane that night and diagnosed her as having multiple contusions and tenderness just below the left side of her ribcage. Additionally, Officer Swinscoe corroborated Jane's testimony, in that Jane told her in the interview the night of the incident that defendant, in addition to forcibly orally copulating her, pushed her out of the bedroom, grabbed her by the hair and pulled her off the couch, and slapped her across the face. And Dr. Bass, who treated Jane two days later, testified that defendant had suffered a significant injury to her left eye, traumatic iritis, which can be caused by the patient being struck by a blow.
Additionally, the case against defendant was strengthened by the introduction of the prior uncharged sex crimes involving Doe 2 and Doe 3—which was "relevant circumstantial evidence that [defendant] committed the charged sex offenses" (Falsetta, supra, 21 Cal.4th at p. 920) that was, as we have concluded, ante, properly admitted under section 1108. And while the harassment/restraining order evidence placed defendant in a bad light relative to his alleged actions toward Doe 2, it was far less inflammatory than the properly admitted evidence that defendant, after befriending Doe 2, gaining her trust, and assuring her that he would respect her desire that they have no physical relationship, forcibly raped her.
The statements in trial exhibit 8 that defendant on appeal contends were improperly admitted hearsay and testimonial statements in violation of his right of confrontation were largely cumulative of Doe 2's testimony (e.g., that defendant had raped her). And the exhibit included statements favorable to defendant concerning Doe 2's claim that he harassed her, including statements in his declaration that (1) the calls Doe 2 claimed were made by him from his personal calling card were from two telephone numbers unknown to him, (2) multiple persons had access to his telephone number, (3) he had not spoken with Doe 2 since the January 24, 1994 hearing on the restraining order application and had not attempted to contact her since that time, and (4) he had never sexually assaulted Doe 2.
Moreover, the prosecutor made only minimal reference to the harassment/restraining order evidence in her argument to the jury. She referred fleetingly that one of the pieces of documentary evidence to be made available the jury was "the restraining order that was submitted into evidence when Jane Doe Number [2] testified in her conditional exam." The prosecutor also stated that Doe 2 had not called the police after defendant had raped her and only did so later when "the harassment became too much and she could not get rid of him." Further, there were no juror questions suggesting that the jury placed any significance upon the claim that defendant had stalked Doe 2, causing her to obtain a restraining order. And we observe that the jury deliberated for only one hour and five minutes before reaching guilty verdicts on all counts. (See People v. Weaver (2001) 26 Cal.4th 876, 974 [rather than indicative of jury's improper consideration of death penalty in guilt phase, it was more likely " 'the relatively short duration of the jury's deliberations simply reflected the strength of the prosecution's case' "].)
We conclude from our review of the record that—assuming trial counsel's failure to object to Doe 2's testimony concerning defendant's alleged harassment and her obtaining a restraining order, and to the admission of trial exhibit 8 was deficient under prevailing professional norms—defendant has failed to meet his burden of establishing prejudice. (People v. Vines (2011) 51 Cal.4th 830, 875.) We do not find that " 'counsel's [assumed] deficient performance resulted in prejudice to [the] defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (Kipp, supra, 18 Cal.4th at p. 366.)
D. Evidence of Statements Made by Jane to Third Parties
1. Defendant's Contentions
Defendant contends that the court erred in admitting evidence of statements Jane made to third parties under the spontaneous statement exception to the hearsay rule. Specifically, he challenges admission of certain statements made by Jane to (1) to her friend, Jasmin, and (2) Officer Garcia. The statement to Jasmin was made at the time she saw Jane on the sidewalk, dressed inappropriately and crying. While Jasmin was taking Jane to pay her phone bill, Jane told Jasmin she was crying because "she had been having problems in her marriage . . . That he would become aggressive when she didn't do what he said and that there had been occasions in which there had been physical contact." Officer Garcia testified that on January 12, 2012, while investigating a reported trespass at Jane's apartment, she told him, while "she was crying . . . [and] scared," that "she felt pressured. She was scared to testify in court and tell the truth. If she told the truth, that something was going to happen to her." Defense counsel objected to the testimony Jasmin and Officer Garcia on hearsay grounds; the court overruled the objection in both instances. Defendant argues that the statements were not properly admissible under the spontaneous statement exception to the hearsay rule (§ 1240).
2. Applicable Law
Our Supreme Court has identified three elements necessary to admit evidence under the spontaneous statement (declaration) exception to the hearsay rule as provided in section 1240: " '(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) The rationale for this exception to the hearsay rule " 'is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief." ' [Citation.]" (Ibid.)
Section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
The trial court assesses whether a statement meets the requirements of section 1240, a matter that is generally a question of fact. (People v. Thomas (2011) 51 Cal.4th 449, 495.) The appellate court "will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception. [Citations.]" (People v. Merriman (2014) 60 Cal.4th 1, 65.)
3. No Prejudicial Error
The statements by Jane to Jasmin concerning her marital problems and defendant's having been aggressive and physical do not appear to satisfy the three elements identified in Poggi required for admission of a spontaneous statement under section 1240. First, the showing was insufficient that there was " 'some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting.' " (Poggi, supra, 45 Cal.3d at p. 318.) Jasmin neither identified the date of her encounter with Jane on the street nor described a specific startling occurrence that was the apparent cause of Jane's distress. And Jane testified only that the instance in which Jasmin found her walking on the sidewalk was "around" November 21, 2011, and Jane related it to her walking to the store to "pay [her] phone" because defendant had taken away her phone and car keys. This did not establish the foundation of a startling occurrence upon which a spontaneous utterance could be based. It follows that since no startling occurrence was established, it was not shown that " '(2) the utterance [was] before there ha[d] been time to contrive and misrepresent, . . . [or that it] (3) . . . relate[d] to the circumstance of the occurrence preceding it.' [Citations.]" (Ibid.) There was thus no substantial evidence to support the admission of Jasmin's testimony under the spontaneous statement exception to the hearsay rule.
There was foundational support under section 1240 for the spontaneous statement by Jane to Officer Garcia concerning her fear that something might happen to her if she testified in court. There was evidence of a startling occurrence, i.e., a recent crime of trespass at Jane's apartment. And Jane's statement to Officer Garcia made while "she was crying . . . [and] scared" occurred shortly after she had learned of this trespass, thereby supporting a conclusion that " 'the utterance [was made] before there [was] time to contrive and misrepresent.' " (Poggi, supra, 45 Cal.3d at p. 318.) This temporal component was established not only through Officer Garcia; Officer Ramirez testified that he met with Jane both in the morning of January 12, 2012, and again early that afternoon after she had learned about the trespass, when he observed that she was very upset. We therefore conclude there was substantial evidence to support the conclusion that Jane's statements to Officer Garcia qualified as spontaneous statements under section 1240 and there was no abuse of discretion in admitting the testimony.
Where there is error in the admission of hearsay evidence, the Watson standard for determining whether the error is prejudicial applies, that is, the judgment will not be reversed unless "after examining the entire cause, including the evidence, it is . . . 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1308 (Seumanu), quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Here, Jane's hearsay statements to Jasmin concerning Jane's marital problems and her statement that defendant had been "aggressive" and that "there had been physical contact" were not inflammatory and concerned matters to which Jane herself had testified in detail. Moreover, while defendant attaches heightened significance to the challenged evidence, we observe that the prosecutor did not even refer to this testimony by Jasmin in her arguments to the jury. Rather, she emphasized Jasmin's testimony as it concerned (1) defendant's statement to her the first time they met that he fantasized about having sex with two women at the same time; (2) defendant's statement to Jasmin that he did not like visits or phone calls from the friends of his girlfriend or wife; (3) the changes she saw in Jane after she and defendant married, evidencing that defendant isolated and controlled Jane; and (4) having seen Jane on the street without car keys or a phone. We conclude from a review of the entire record that it is not reasonably probable that defendant would have achieved a more favorable result absent any error in the admission of the hearsay statements of Jane through the testimony of Jasmin. (Seumanu, at p. 1308.)
E. Limitation of Cross-Examination of Jane Doe 1
1. Defendant's Contentions
Defendant contends that the trial court abused its discretion in limiting the cross-examination by defense counsel of Jane. The examination related to her ownership of a vehicle and whether she possessed a driver's license during the time she was married.
During cross-examination, Jane was asked about a Jeep Cherokee automobile she referred to in her direct examination. She testified that she "would drive it." Defense counsel asked if she owned the vehicle, and, over the People's relevance objection (which the court overruled), Jane responded that it was owned by another person. The court thereafter sustained the People's relevance objections to defense counsel's questions: (1) whether the owner was a person named Rangel; (2) whether it was true that the owner of the vehicle wanted it back at the time she possessed it; and (3) whether she had a driver's license at the time she was driving the vehicle. After Jane's testimony was completed, defense counsel stated for the record that because Jane had testified that defendant had taken her documents, "we felt it was relevant to be able to probe into whether or not she had a California driver's license and that was part of the documentation that [defendant] kept." Defense counsel did not mention the inquiry as to ownership of the vehicle or whether the owner had wanted to take back possession of the car. The court responded that it had "found that going any further into that line of questioning would not be relevant . . . to the issues before the Court and . . . jury."
Defendant argues that this was proper cross-examination, following up on Jane's direct testimony that defendant took her car keys (as well as her phone and papers) away from her. He asserts that the inquiry was very important to the exploration of the nature of his relationship with Jane before December 23, 2011. Defendant contends that the error violated his constitutional rights of due process and confrontation of witnesses. And he claims that the error was prejudicial under the Chapman standard because the People cannot "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v. California (1967) 386 U.S. 18, 24.) He argues alternatively that even if the Watson standard is applicable, it is reasonably probable that he would have achieved a more favorable result absent the error. (See Watson, supra, 46 Cal.2d at p. 836.)
2. Applicable Law
"Trial judges retain 'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 705 (Ledesma), quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680.) Thus, although a criminal defendant's right to cross-examine witnesses has "long been recognized as essential to due process" (Chambers v. Mississippi (1973) 410 U.S. 284, 294), "the trial court has wide latitude under state law to exclude evidence offered for impeachment that is collateral and has no relevance to the action [citations], [and its evaluation] . . . necessarily encompasses a determination that the probative value of such evidence is 'substantially outweighed' by its prejudicial, 'confusing,' or time-consuming nature. [Citations.]" (People v. Contreras (2013) 58 Cal.4th 123, 152; see People v. Lewis (2001) 26 Cal.4th 334, 374-375 [§ 352 gives trial court broad power to prevent " ' "nitpicking" ' " over " ' "collateral credibility issues" ' "].)
We review a trial court's ruling admitting or excluding evidence offered for impeachment for abuse of discretion. A ruling admitting or excluding such impeachment evidence "will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]" (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)
3. There Was No Error
The court did not abuse its discretion in the purported curtailment of the cross-examination of Jane by defense counsel. First, it is unclear how evidence that Jane purportedly did not have a valid California driver's license at the time she was married to defendant would have been relevant, let alone significant evidence pertaining to what defendant asserts was the "critical issue at trial," the nature of his relationship with Jane before December 23, 2011. If the speculative import was that defendant took away her car keys because he did not want her to drive without a valid license, this is refuted (1) directly by defendant's own testimony that he "[n]ever" prevented Jane from "having the keys"; and (2) inferentially by the fact that, despite having the opportunity, he provided no testimony that he was concerned about Jane purportedly driving without a valid license. Further, defense counsel was able to elicit testimony from Jane that she had told an investigator that defendant had kept her documents, which she described in court as being "[d]ocuments from my country, the counselor matricula and [her] driver's license from that country." The jury could have inferred from this testimony that Jane did not in fact have a California driver's license at the time she was married (and that therefore defendant never kept it from her).
Second, the significance of Jane possessing the Jeep Cherokee vehicle while she was married to defendant and of the registered owner's purported desire to regain possession of it are not manifest from the record. Indeed, at the time defense counsel placed on the record his concerns about the court's purported limitation of his cross-examination, he did not even mention the issue of the vehicle's ownership or the owner's purported desire to reclaim it. There is no indication that defendant did not want her driving the vehicle because she did not own it. To the contrary, his only testimony potentially related to the matter is that he never kept Jane from "having the keys." And, again, while defendant had the opportunity to present affirmative evidence concerning the vehicle's ownership, reasons Jane did not drive it, or concerns he had concerning Jane driving it, he did not do so, either through his own testimony or through the testimony of third parties.
We conclude that the trial court, in exercising the " 'wide latitude' " it possesses in placing limits on cross-examination (Ledesma, supra, 39 Cal.4th at p. 705), did not abuse its discretion in this instance. (See Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Defendant contends further that reversal is required due to cumulative error. We have concluded there is one nonprejudicial error concerning the admission of Jane's statements through the testimony of Jasmin. There are thus no multiple errors to cumulate. In addressing the challenge to admission of the harassment/restraining order evidence, we have assumed without deciding that counsel's performance was deficient in failing to object to this evidence, but have concluded there was no ineffective assistance of counsel that was prejudicial. This assumed error, together with the nonprejudicial error concerning the admission of Jane's statements through Jasmin's testimony, does not warrant reversal. Considered separately or together, we find "no serious flaw" in the judgment, and "[o]ur careful review of the record persuades us that the trial was fundamentally fair and its determination reliable." (People v. Millwee (1998) 18 Cal.4th 96, 168.) --------
F. Discovery Order
Defendant lastly contends the trial court may have erred in concluding that the following documents did not need to be disclosed to defendant: (1) personnel records pertaining to Jane from the Mexican-American Opportunity Foundation (Foundation; hereafter, records are collectively, the Foundation documents); and (2) the police report from the Salinas Police Department pertaining to a claimed rape of Jane in December 2010 (report no. 11-110811; hereafter Police Report). Defendant requests that this court review these materials to determine whether the court erred.
Defendant subpoenaed personnel records pertaining to Jane. Defense counsel advised the court that he had reason to believe that there had been disciplinary actions taken against Jane by the Foundation. At a hearing on January 28, 2014, defense counsel asked the court to "consider discovery in its broadest scope and . . . permit . . . [defendant] to review the information that was subpoenaed to see if it did have any relevance or bearing on the alleged victim's credibility in this case." The court, after considering the matter and after having reviewed the Foundation documents, denied defendant's request, concluding that "there is nothing in the records other than regular employment records on boarding reviews, temporary layoffs. So there is nothing that would fit into the category that [defendant] request[ed]."
In October 2013, defendant filed a motion to compel production of the Police Report, and requested that the People produce the report. The People opposed the motion. On October 15, 2013, the court denied defendant's motion, concluding that it was "not relevant to the current case and is not likely to lead to relevant evidence either."
We have reviewed the documents produced by the Foundation concerning Jane in response to a subpoena duces tecum. We agree with the trial court's conclusion that there were no materials that should have been disclosed to defendant.
We have further reviewed the Police Report. We agree with the trial court's conclusion that the materials are not relevant to this case and are not likely to lead to the discovery of relevant evidence.
V. DISPOSITION
The judgment of conviction is affirmed.
/s/_________
Bamattre-Manoukian, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Mihara, J.