Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC509377
ELIA, J.Gabriel Reyes Luna appeals from a judgment of conviction of two counts of lewd or lascivious conduct (Pen. Code, § 288, subd. (a)) against different victims following a jury trial. The trial court sentenced him to a total prison term of eight years.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims that the trial court improperly excluded defense evidence that the aunt of the two alleged victims and a testifying cousin of the victims improperly influenced them to "misconstrue innocent physical contacts" with defendant. He further asserts that the court's evidentiary rulings together with its denial of a request for a continuance to allow time for authorities execute a body attachment for the aunt constituted abuses of discretion and violated defendant's right to present a defense. Defendant asserts that his defense counsel rendered ineffective assistance of counsel by (1) failing to correct the trial court's erroneous belief that no evidence established a connection between the aunt and the alleged victims and (2) failing to articulate theories of admissibility for the aunt's out of court statements. He lastly requests this court to review psychiatric records reviewed in camera by the trial court to determine whether they contain exculpatory information.
We conclude that the challenged court rulings did not constitute an abuse of discretion or infringe upon defendant's constitutional right to present a defense. We also reject defendant's ineffective assistance of counsel claims. We have reviewed the psychiatric records examined in camera and affirm.
A. Procedural History
An information filed on October 13, 2006 charged defendant with three counts of lewd or lascivious conduct in violation of section 288, subdivision (a), against separate victims.
On February 26, 2007, the court reported that it had conducted an in camera review of Kaiser Permanente records pertaining to alleged victim R., which defense counsel had subpoenaed. The court stated that the documents contained no exculpatory information and no "information directly or arguably indirectly relating to the charges pending against the defendant." It found "there is no information that should be released or disclosed." The court placed the records, designated as "Court Exhibit A," in a confidential sealed envelope for possible future appellate review.
On March 5, 2007, the court granted the prosecutor's motion to dismiss count three because the prosecution had been unable to subpoena the alleged victim D. and Kathy R., both of whom had been included in the People's witness list filed February 26, 2007. The jury was sworn and, on March 7, 2007, the prosecutor gave an opening statement and began presentation of the case in chief. The witnesses on behalf of the prosecution included, among others, three of defendant's granddaughters, specifically alleged victim A. (count one), alleged victim R. (count two), and S., and defendant's niece C.
On March 12, 2007, after in chambers discussion of defense witnesses, the court stated for the record that prosecutor had objected to the prospective testimony of Kathy R. on relevance grounds and asked for an offer of proof. Defense counsel explained that he wished to ask Kathy R., who was the former spouse of the defendant's son Dan, questions regarding "her past relationship with various members of the family," including her daughter D., the victim alleged in dismissed count three, and A., R., and S. In his offer of proof, defense counsel indicated that Kathy R. was the first person to "make an allegation" against defendant whom she accused of fondling her daughter D., Kathy R. had accused defendant of fondling multiple family members in her statement to police, and she allegedly had "talked to all of them on a number of family occasions" from 1990 through the time of trial. According to defense counsel, Kathy R. had told the prosecution's investigator, "This old fart has been doing this for 30 years. He's even molested me. He's molested my sister. He's molested my cousins, and therefore, I will be happy to come in and prosecute." Defense counsel explained that Kathy R.'s testimony was being offered to show "the inter-relationship among the members of the family was not investigated in this case" and he maintained that the evidence was crucial to a determination of the witnesses' credibility and the validity of the accusations. According to defense counsel, Kathy R. had been served on March 8, 2007 with a subpoena returnable that morning at 9 a.m. but she was not there. He asked the court to consider issuing a body attachment for Kathy R.
The prosecutor responded that she had served Kathy R. and her daughter D. on several occasions but they had "never appeared for court, including the preliminary examination" and not returned her calls. Count three had been dismissed as a result and she had "no reason to believe that either [Kathy R.] or her daughter [D.] are going to be present in this trial . . . ." She asserted that, moreover, no nexus had been shown between Kathy R.'s animosity toward her former in-laws and the two alleged victims and the two other testifying female family members, S. and C. The prosecutor argued that it was "nothing more than raging speculation to assume that [Kathy R.] has somehow poisoned" those four victims. The prosecutor objected to the entire line of questioning on relevancy and Evidence Code section 352 grounds and stated that the proffered evidence had no relevance to the charges and its admission would take an unreasonable amount of time and unduly confuse the jury.
The trial court asked defense counsel whether any of the four victims had spoken to Kathy R. about being abused and whether their statements to Kathy R. had been inconsistent with their in-court testimony. Defense counsel responded that he did not have any such information because Kathy R. "obviously has refused to talk to me also." He stated that the defense theory was that Kathy R.'s "vindictiveness [against defendant] ha[d] permeated the entire family relationship from 1990 on."
Defense counsel informed the court that Kathy R. had made the following statement, in substance, to police: " 'I saw [defendant] grabbing [R.] on . . . numerous occasions. I saw him chasing my daughter around and messing with her. I had to fend him off. I had to corner him." He asserted that Kathy R. was "a percipient witness to what this man allegedly did to her daughter as well as to [R.] and [S.]." Defense counsel also stated that Kathy R. had said, " 'I saw him attacking, lying down with [R.] in the garage, lying down with her in the living room.' " Defense counsel indicated that he wanted to call Kathy R. to show her bias against defendant.
The trial court remarked that Kathy R.'s testimony regarding her observations of defendant attacking R. on numerous occasions and defendant attacking S. would be relevant to support those witnesses' credibility but would not impeach them and there had been no showing that they had talked with Kathy R. and made inconsistent statements. Defense counsel again conceded he did not know what Kathy R. would say because Kathy R. had never talked to him.
Defense counsel told the court that he planned to introduce Kathy R.'s statement to police into evidence through the officer's testimony and acknowledged that Kathy R.'s statement was hearsay. The court asked defense counsel, "What's your theory of putting her statement into evidence without her presence?" Defense counsel answered, "Don't know."
The court explained it was asking questions because it was trying to give defense counsel a preliminary ruling before counsel made his opening statement to the jury but defense counsel could say whatever he wanted. The court reiterated that it did not see a theory permitting Kathy R.'s hearsay statements to be admitted without her presence.
After the first defense witness testified, defense counsel called Kathy R. as his next witness, but she was not present. Later in the day, after defendant had testified on his own behalf, defense counsel asked the court to issue a body attachment for Kathy R. The court commented that the only potentially relevant evidence proffered that morning was Kathy R.’s testimony that she had seen defendant attack R. on a number of occasions, which the court observed would give "R[.] more credibility that she was touched." Defense counsel insisted the evidence was relevant to show "[Kathy R.] is the poison that has infiltrated the veins of this family." The court stated that there was "no connection to that" and defense counsel would be allowed to call Kathy R. for the limited purpose of testifying that "she saw your client . . . attack R[.]." But the court agreed to issue a body attachment for Kathy R. since she had not complied with the subpoena.
On March 13, 2007, defense counsel informed the court that he wanted to call Dr. Coleman, a psychiatrist, to testify in two subject areas: (1) child sexual abuse accommodation syndrome (CSAAS) and (2) memory fragility and suggestibility. The court indicated that, assuming the witness was qualified as an expert, it would allow Dr. Coleman to testify as to his opinion that law enforcement should not use CSAAS or be guided by it. The court agreed that Dr. Coleman would be permitted to testify about memory problems in general, children's memory problems in particular, and the interviewing techniques used in this case.
Defense counsel asked the court to permit Dr. Coleman to listen to five recorded telephone calls from Kathy R., or to review the transcripts of the calls, because the calls related to Dr. Coleman's evaluation of the police interviews. The court stated that Dr. Coleman would be allowed to testify about "questioning techniques of sexual assault victims, leading questions, memory" but "anything about [Kathy R.] [was] not evidence." The court stated there was "no evidence whatsoever" that Kathy R. had any impact on A. or R. Defense counsel indicated that Dr. Coleman needed to know Kathy R.'s input into the family to determine whether she was "a dominant figure" and whether there was "some kind of a link between her and the rest of the family." He represented that, based on Kathy R.'s link to R., "Dr. Coleman's position is going to be she was a dominant influence on [R.]" and Kathy R. was linked to other family members primarily through R.
The prosecutor argued that allowing Dr. Coleman to testify about a "speculative nexus" between Kathy R. and the alleged victims would be inappropriate because the witness would be relying upon Kathy R.'s out of court statements, which were hearsay. The court determined that "Dr. Coleman could talk about generally how the family could impact alleged victims' testimony, but the ruling is that he's not going to be allowed to make reference to [Kathy R.'s] statements at this stage."
Following Dr. Coleman's testimony, defense counsel called Kathy R. as his next witness. When the court asked if she was present, defense counsel replied that he had "no idea." The court stated that the body attachment order required Kathy R. to immediately be brought to the courtroom if she was arrested but it had no information that she had been arrested.
Defense counsel asked the court to recess the trial until Kathy R. was brought to court and he assumed that would be in a day or so. He indicated that his two remaining witnesses, defendant's son Dan who had been previously married to Kathy R. and the son's present wife, were rebuttal witnesses "essentially to refute what [kathy R.] would say]" and to substantiate recorded telephone messages indicating Kathy R.'s knowledge of A. and R., indicating Kathy R. had talked with their mother, and showing Kathy R.'s "knowledge of all of this is a little broader than what perhaps maybe [sic] perceived at this moment." Defense counsel represented that Kathy R. had made a statement that "I know that he has molested eight other people." He asserted that the statement was relevant to her state of mind, her ability to accurately perceive, her bias, and her "motive to spread the poison."
The trial court stated that A., R., S., and C. had been subjected to direct and cross-examination and no connection between Kathy R. and those witnesses had been shown. During further discussions, defense counsel read part of Kathy R.'s statement to police in which she claimed to have witnessed defendant touching R. before she discovered that defendant had done something to her daughter D. and indicating that "the fight had been on for a few years to make him stop doing anything" and that defendant had "touched a few of [Kathy R.'s] sisters" and he had "grabbed [Kathy R. ] coming out of the shower" and Kathy R. had knocked him in the stomach and in the head. Defense counsel argued that Kathy R.'s statement was a "poster child exhibit" for an "interconnective network."
The court stated that it was not willing to continue the case indefinitely. It indicated its surprise that Kathy R. had not been subpoenaed "months and months ago for the start of a trial date so that she could be ordered back or get a body attachment for not showing up" given counsel's insistence that her testimony was important and her history of failing to appear. The court ruled defense counsel would be allowed to call the remaining two witnesses and, if Kathy R. was not present by 10 a.m. the following morning, they would proceed with instructions and argument. Defense counsel asked for a mistrial, which was denied.
Defense counsel subsequently indicated that, in light of Dr. Coleman's testimony, he would like to "delineate exactly what the networking interaction familial activity is in this case . . . ." In a further offer of proof, defense counsel stated that defendant's son Dan Luna would testify that Kathy R. had initially alleged that defendant had molested their daughter during a 1990 argument with him, their daughter had not repeated this accusation despite prompting by Kathy R., and their daughter claimed never to have made such accusation. According to counsel, the son believed that Kathy R. began accusing defendant of molesting D. in 1990 because Kathy R. "had been caught with a male church member during bible studies."
Defense counsel represented that defendant's son Dan would testify that, whenever he and Kathy R. argued in 1991 and 1992, Kathy R. threatened to, " 'Turn [his] dad over to the police.' " In 1995, when the son's and Kathy R.'s home went into foreclosure, his father and mother bailed them out. Defendant's son Dan and Kathy R. had a bitter breakup and divorce, mainly because his mother and father refused to put the home in both his and Kathy R.'s names when saving it from foreclosure.
Defense counsel indicated that defendant's son would testify regarding threats made by Kathy R. "In 1998, the divorce proceedings terminated by [Kathy R.] threatening [defendant's son] Dan that she was going to go to the police if he tried to get custody of [D.] . . . ." "Between 1999 to 2004, [Kathy R.] would periodically threaten to go to the police if [defendant's son Dan] didn't give her help." Before criminal charges were filed against defendant, defendant's son recorded three threats made by Kathy R. on the telephone in which she "threatened to say that his father molested their daughter [D.] and her cousins" unless he gave her money. Later, after criminal charges were filed against defendant, Kathy R. threatened to file a civil lawsuit against defendant after his criminal conviction. Defense counsel further represented that defendant's son Dan would testify that Kathy R. had always maintained she was molested by her own grandfather.
The prosecutor pointed out that count three had been dismissed and D. was no longer a charged victim in the case. She maintained that Kathy R.'s conduct with respect to D. was irrelevant to the remaining charges. D. had not been called as a witness.
Defense counsel added that defendant's son Dan would testify that his daughter D. is very close to A. and R. and they see each other on holidays.
The court told defense counsel that most of the proffered testimony, which primarily dealt with D., would be subject to relevance and hearsay objections, which the court would sustain if interposed. The court stated that Dan could be called to testify about the victims' relationships with each other but there was nothing to suggest defendant's son would provide evidence of additional discussions of molestation among the victims.
The next morning, Kathy R. was not present. Defense counsel indicated he intended to call Sheilagh Luna to authenticate the recordings. The court told counsel that he would not be allowed to call her "if that's your offer of proof" because the court had already ruled on it. Defense counsel then commented that defendant's son Dan was "going to be the same thing" so calling him would be "a useless act." The court said "your record is just crystal clear" and its ruling was not going to change. The defense rested without calling any further witnesses.
The jury found defendant guilty of counts one and two.
B. Evidence
At the time of trial in 2007, A. (count one) was 13 years old. She testified that, in 2001, when she was about eight years old, she and other family members were at her grandparents' house to celebrate a birthday. A. recalled that she was in her grandfather's bedroom leaning against the bed watching TV when her grandfather, defendant, came into the bedroom. Defendant started walking toward the door to the bathroom, whose entrance was at the back of the bedroom. She "moved aside" and "tried to move out of the way because [she] thought he wanted to go into the bathroom." Defendant grabbed her from behind, put his hand inside her shirt, and directly touched her breast. A. remembered feeling scared and she "pushed him off and went into the kitchen where everyone else was."
A. testified that, on the day of the incident, she did not tell anyone what had happened but she subsequently told three school friends. A. eventually told her sister R., who was about six and a half years older. A. explained that, when she was about 11 years old, R. disclosed that defendant had molested her but R. did not tell her any details. A. stated that she told R. about the incident between herself and defendant when A. was 12 years old, approximately two years before trial. A. decided to tell R. because A. already "knew it happened to [R.]" and believed that her older sister would understand. It was A.'s recollection that, the following day, R. told their mom about the incident between A. and defendant and, immediately afterward, their mom called A. in to talk.
In September 2005, A. told her school counselor that defendant had touched her but did not tell her how. A. was sent to the hospital, where she told a doctor she had been molested but gave no details. On September 6, 2005, she talked with a police officer and stated that defendant had touched her chest under her clothing.
R., the alleged victim in count two, was 20 years old at the time of trial. She testified that defendant, her paternal grandfather, had touched her in an inappropriate way when she was very young, about 5, 6, or 7 years old. R. could not remember exactly when the touching began but she recalled one specific incident when she and her younger cousin S. were watching television in their grandparents' bedroom. Defendant came into the bedroom and "rubbed his crotch on [her] crotch" over their clothes. Her cousin S. was sitting on the bed. R. thought she had been school age but she was not sure whether she was in kindergarten. She was "pretty sure" there had been other incidents but at trial she could not remember when they were or what specifically had occurred. She had previously testified at the preliminary hearing that defendant had touched her chest and indicated that she was then telling the truth but she could no longer remember the incident. R. thought defendant stopped touching her when she was about seven or eight years old.
Years later, R. had spoken with her cousins about what had happened to her. R. and S. had spoken about it more than once but their conversations occurred long after the incident and they never discussed the fact that S. was in the room when defendant touched R. R. indicated she had also talked to D.'s mother Kathy R. and a middle school friend. R. testified that she did not tell her mom what happened to her for "a long time after it happened." R. recalled that A. disclosed the incident with defendant before A. reported it to her school counselor.
R. stated she had last spoken with Kathy R. "just a little bit after my sister first made her report" and more than a year had passed since they had spoken. R. was asked whether, when she did have a conversation with Kathy R., Kathy R. had given her "any information about what she knew" about her sister or her. She replied, "I don't think she told me anything that I didn't already know."
At the time of trial, S. was 16 years old and lived with her grandparents. S. had been living with her grandparents for about two years and, before that time, she had lived with them on and off. S. denied that defendant, her grandfather, had ever molested her or touched her in a sexually inappropriate way. But she had made some inconsistent statements during a previous interview with police, which had been recorded in September 2005.
During the interview, a police officer had informed S. that her cousins had told him that defendant may have done something to make her feel uncomfortable. S. had replied, "Well, when we were younger." She had indicated to the officer that she had some memory of defendant putting them on his lap and touching them in places they should not be touched, including her "butt." At trial, S. denied making those statements to police. The interview transcript reflected that S. had nonverbally responded by nodding her head in the affirmative when the officer asked whether S. had been about five years old at the time defendant touched her but, at trial, she denied nodding her head. S. had explained to the officer that she did not know if her father had ever confronted her grandfather but her father had told her grandmother, who did not want to believe it. At trial, she denied making that statement.
The interview transcript also reflected that S. had told the officer that defendant had "kind of fucked up our lives" but, at trial, she also denied saying that. S. had stated to the officer that she had "kept it in" and "barely told" her boyfriend during the previous year but, at trial, she denied telling her boyfriend that defendant had touched her in an inappropriate way. S. had told the officer that she would not want to stay home alone with defendant but she could defend herself now but, at trial, she denied saying so. She had indicated to the officer that she did not communicate with defendant beyond hi and bye but, at trial, she denied giving that statement as well.
S. was aware that her three cousins, R., A. and D., had accused defendant of molesting them. S. claimed R. had never shared what had happened to her. S. was unaware that defendant's niece C. had accused defendant of molesting her about 20 years earlier and did not even know C.
S. claimed that she had been under the influence during the police interview because she had been drinking earlier that morning. She had not told the police that information. The officer, who interviewed S. and who was trained to recognize the symptoms of being under the influence, stated that S. had not appeared to be under the influence at the time of the interview.
The same officer also had interviewed defendant. During the interview, defendant had written a note to his granddaughters: "[T]his is directed to my granddaughters; directed to tell them if they ever felt that I touched them inappropriately, those times that you were in my house, I beg that you forgive me because I feel bad about all of this."
C. testified that defendant was her uncle on her father's side of the family. C., who was 27 years old at the time of trial, stated that she spent time at defendant's house when she was young, she would see him at a lot of family functions, and he would baby sit her once in a while. Other than a "short" encounter about five years before trial, however, C. had not had any substantive contact with defendant in over 10 years.
When C. was about six years old and lying on defendant's bed watching television during a visit, defendant climbed into bed, pushed her legs open, moved her shorts to the side, and began kissing her vagina with his mouth. She was crying and scared. She ran into the living room but did not say anything about it that day because she was afraid of getting in trouble.
After this incident, there were about four additional incidents. All the incidents involved oral copulation. The final incident, which occurred about a year after the initial incident, "started the same way it usually did" but then defendant put his fingers inside her vagina. C. ran out of defendant's room. That same day, C. told her mom what had happened; she was then approximately seven years old. C.'s mother was upset and she had wanted to report the matter to the police but no police report was made because C.'s father did not want anything said. C.'s parents divorced about a year later and she tried to stay away from her father's side of the family as much as she could. She had not known A., R., or D. and had not spoken to them about their claims of molestation.
Carl Lewis, a senior criminal investigator for the District Attorney's Office, testified about child sexual abuse accommodation syndrome (CSAAS), a term coined by "Dr. Roland Summit in an article that he published in a multi-disciplinary academic journal in 1983." Lewis explained that CSAAS relates to misconceptions about the behavior of child sexual abuse victims in five categories: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, unconvincing disclosure, and (5) retraction. Lewis acknowledged that the syndrome was not a diagnostic tool. Lewis confirmed that he did not know the defendant or any party, the specific charges against defendant, or the facts of the case.
Defendant testified at trial. He denied ever molesting or inappropriately touching A. or R. He stated that A.'s claim that he had touched her breast was fabricated. When asked if he had ever inappropriately touched his granddaughter S., he replied, "I don't remember." He recalled an incident in his bedroom in about 1985 or 1986 when he tried to make C., who was lying on his bed watching TV, laugh and he touched her stomach but she "got scared and left the room and ran to the kitchen." When asked about inappropriate touching of C., he replied, "That was the only one time." He stated that C.'s testimony that he put his mouth on her vagina was "false" and her testimony that he tried to put his finger into her vagina was "a lie."
Dr. Coleman, a psychiatrist, also testified about CSAAS. He explained that Dr. Summit intended the CSAAS information to be used by mental health professionals as a reminder not to dismiss belated claims of molestation as unfounded or false. In a second article published about 10 years before trial, Dr. Summit had complained that he had not intended CSAAS to be used in legal cases and his original article was being misused by the prosecution and certain expert witnesses. Dr. Coleman believed that the once common scenario of a child surrounded by unsupportive, disbelieving adults was no longer the case. He indicated there was now "a very, very great pressure to want to accept the child's statements and act on it . . . ." Dr. Coleman stated that very few people would now agree that children never make false allegations.
Dr. Coleman discussed suggestibility and memory. He stated that "just as children can accommodate . . . to pressures to not say anything has been done to them, they could also accommodate to pressures to say that something did happen to them." Dr. Coleman cited a research study in which researchers and parents "reminded" a 10-year-old boy of his traumatic experience of being lost in a shopping center for several hours and, even though the incident had never happened, the boy agreed that he remembered it and he subsequently disbelieved the adults when they told him that the incident did not happen because "he could remember it." He explained that "children can respond to suggestive pressures," "memory is not a rigid storage device like a tape recording," and memory can be influenced. The development of allegations over time must be considered.
He testified that, when he reviews material in a case of alleged child molestation, he asks whether the person who first heard the allegation has a relationship to the child and whether there is "any information suggesting that the person who first heard it has a point of view, an axe to grind, an agenda . . . ." He looks at whether that initial person had a "certain opinion" and interacted with the child in "a suggestive way." He then looks at all the people with whom the child has interacted or communicated on that subject and whether the content of the child's statement has altered over time.
In this case, Dr. Coleman had reviewed videotapes and read police reports and submitted statements. Dr. Coleman thought, with regard to alleged victim A., the most important concern was the potential impact of R., who had shared with her younger sister that "the grandfather had done some touching he shouldn't have done" prior to A. making any accusation of defendant. Dr. Coleman's main concern with respect to R.'s interviews was that "she seemed to be trying to search for memories" and "wasn't sure." He stated that the evidence is that a person with an abusive experience has a hard time not thinking about it "as opposed to somehow losing the memory." Dr. Coleman testified that had he learned about R's contact with "other family members who had communicated their belief that she was a victim, sometimes even intervening directly physically because they believed she was at that moment being victimized." He stated: "In other words, [R.] had been subjected to direct adult influence that could easily have stayed with her that, 'You are a victim. You have been a victim. You were a victim[.]' "
Dr. Coleman criticized the police investigation with respect to S. for not conducting an "in-depth" inquiry into S.'s conversations with her cousins about their grandfather and what he supposedly did and not focusing on that network. He believed that the police should have conducted further investigation of C.'s expressed hostility toward defendant.
Dr. Coleman indicated that, in his opinion, the family context was ignored and the investigation in this case was "of very poor quality." He stated: "There was a family network of feelings and attitudes toward Mr. Luna that needed to be factored into what was going on. A family network of opinions, agendas, and . . . in my judgment, you can't ignore that if you want to do the best job of finding the truth." He explained that the surrounding network of influences, rather than individual characteristics, is critically important in assessing suggestibility. He indicated the importance of considering indirect communications, stating "[y]ou need to study all the potential interactions, because . . . people could convey information, opinions, biases, messages back and forth . . . ."
S.'s father testified that S. had never told him that she had been molested by defendant. Defendant's wife testified at trial that she first heard about molestation allegations against defendant when a detective had spoken to them the previous year. Defendant's grandson Gabriel, who was also Kathy R.'s nephew, had never heard any accusations of child molestation against defendant and thought he was a good man.
C. Exclusion of Evidence
1. Kathy R.'s testimony
On appeal, defendant contends that the trial court's ruling limiting Kathy R.'s prospective testimony was erroneous. To begin with, we see no basis for reversal since defense counsel conceded he did not know what Kathy R. would say as a witness and, therefore, could not relate the substance of her prospective testimony and since no judicial restrictions were ever implemented in that Kathy R. failed to respond to the defense subpoena and was absent at trial. (See Evid. Code, § 354 [substance, purpose, and relevance of excluded evidence must be made known to the court and any error resulting in the exclusion of evidence must result in a miscarriage of justice]; Law. Rev. Com. com., 29 B Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 354, p. 332 [Evidence Code section 354 "reiterates the requirement of the California Constitution that a judgment may not be reversed . . . because of an error unless the error is prejudicial"]; see Cal. Const., art. VI, § 13.)
Moreover, the court's limitation of Kathy R.'s prospective testimony to anything other than her percipient observations was not an abuse of discretion. At trial, defendant's theory of relevancy offered to support admission of Kathy R.'s testimony consistent with her out of court statements was that it would reveal her hostility toward and prejudice against defendant, which defense counsel asserted permeated the family and "poisoned" the alleged victims' memories or understanding of incidents involving defendant. The proffered testimony did not support a logical inference that Kathy R.'s influence within the extended family had caused any witness to develop a false memory concerning defendant's conduct.
Under California law, "[n]o evidence is admissible except relevant evidence" (Evid. Code, § 350) and "[e]xcept as otherwise provided by statute, all relevant evidence is admissible" (Evid. Code, § 351). " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see Evid. Code, § 780 ["Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . ."].) "[U]nder [Evidence Code] Section 210, 'relevant evidence' includes not only evidence of the ultimate facts actually in dispute but also evidence of other facts from which such ultimate facts may be presumed or inferred." (Law. Rev. Com. com., 29B Pt.1 West's Ann. Evid. Code (1995 ed.) foll. § 210, p. 23.) "Evidence is irrelevant, however, if it leads only to speculative inferences. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 711; see People v. Babbitt (1988) 45 Cal.3d 660, 681-682.) Courts "review a trial court's ruling excluding evidence on grounds of irrelevance (Evid. Code, § 350) for abuse of discretion." (People v. Thornton (2007) 41 Cal.4th 391, 444.)
In the absence of an offer of proof or any evidence that Kathy R. engaged in suggestive communications, directly or indirectly, with A., R., S. or C., it was within the bounds of reason to conclude that Kathy R.'s prospective testimony about what she believed defendant had done and her anger at him was not directly relevant and any inference that she improperly influenced any witness through her interactions or communications would be speculative. The "exclusion of evidence that produces only speculative inferences is not an abuse of discretion. [Citations.]" (People v. Babbitt, supra, 45 Cal.3d at p. 684.)
Moreover, the prosecutor also objected to Kathy R.'s proposed testimony on Evidence Code section 352 grounds. Even if the proffered testimony had some remote tendency in reason to prove that Kathy R. injected negative thinking about defendant and pressure to adversely interpret defendant's conduct into the extended family's dynamics, it was reasonable to conclude that the probative value of such prospective testimony was at best negligible in the absence of any chain of evidence linking Kathy R.'s proffered testimony regarding her attitudes and beliefs to the testifying witnesses' memories of defendant's conduct and certainly outweighed by other valid considerations, such as the risk of undue consumption of time and confusion of the issues.
The trial court acted with its discretion in limiting potential testimony by Kathy R. based upon the defense's offer of proof.
2. Kathy R.'s Out of Court Statements
The court indicated to defense counsel that Kathy R.'s statement to police was "pure hearsay" and it did not see any theory of admissibility. Defense counsel did not articulate either a nonhearsay purpose or an exception to the hearsay rule, which was required to preserve the issue of admissibility for appeal. (See Evid. Code, § 354.) Moreover, the court did not expressly bar admission of Kathy R.'s out-of-court statements. The court merely indicated that it could not discern a theory of admissibility and was attempting to provide a preliminary ruling before defense counsel made his opening statement.
Hearsay statements of memory of or belief about past events are not admissible to prove the fact remembered or believed. (Evid. Code, §§ 1200, 1250, subd. (b).)
3. Dr. Coleman's Testimony
On appeal, defendant maintains that the court abused its discretion in prohibiting Dr. Coleman from testifying specifically about Kathy R.. Defendant insists that the trial court's restriction of Dr. Coleman's testimony in regard to Kathy R. was an abuse of discretion "if it was based on the trial court's mistaken belief that there was no evidence in the record of the link between [Kathy R.] and any of the prosecution's witnesses" or if it was based on an erroneous belief that expert opinion cannot be predicated on hearsay.
The record does not show that the court's ruling that Dr. Coleman would not be "allowed to make reference to [Kathy R.’s] statements at this stage" was based upon any factual or legal misconception. Rather, the court expressed its concern that the notion that Kathy R. was a dominant figure influencing the family was "pure speculation."
At trial, defense counsel asserted that Dr. Coleman should be allowed to testify that Kathy R. played a dominant role in the extended family and improperly influenced R., and, through R., improperly influenced A. An opinion testified to by an expert must be "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801, subd. (b).) This rule "permits an expert to base his opinion upon reliable matter, whether or not admissible, of a type that may reasonably be used in forming an opinion upon the subject to which his expert testimony relates." (Law Revision Com. com., 29B Pt. 3 West's Ann. Evid.Code (1995 ed.) foll. § 801, p. 21.) Thus, defendant is correct that "[a]n expert may rely on hearsay in forming his opinion. (Evid. Code, § 801, subd. (b).)" (People v. Arias (1996) 13 Cal.4th 92, 184; see In re Fields (1990) 51 Cal.3d 1063, 1070.)
But the matters upon which an expert relies in forming an opinion "must provide a reasonable basis for the particular opinion offered, and . . . an expert opinion based on speculation or conjecture is inadmissible. [Citations.]" (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) "It is improper to use conjectural and speculative matters to support an expert's opinion on any subject because they render the opinion unreliable and irrelevant." (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008) § 29.40, p. 623; see People v. Richardson (2008) 43 Cal.4th 959, 1008 [an expert's opinion may not be based on speculative or conjectural factors]; Law Revision Com. com., 29B Pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 801, p. 20 ["under existing law, irrelevant or speculative matters are not a proper basis for an expert's opinion"].)
A trial court "may . . . exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion." (Evid. Code, § 803.) "Under [Evidence Code] Section 803, as under existing law, an opinion may be held inadmissible or may be stricken if it is based wholly or in substantial part upon improper considerations." (Law Rev. Com. com., 29B Pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 803, p. 99.) A trial court's determination of whether matters are "of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject" (Evid. Code, § 801, subd. (b)) is reviewed for an abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 688.)
Evidence Code section 802 authorizes "[a] witness testifying in the form of an opinion" to "state on direct examination the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." But "Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. (Coleman, supra, 38 Cal.3d at pp. 91-93.)" (People v. Montiel (1993) 5 Cal.4th 877, 919.) "A trial court . . . 'has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.' (People v. Price (1991) 1 Cal.4th 324, 416 . . . .) A trial court also has discretion 'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' (People v. Coleman (1985) 38 Cal.3d 69, 91 . . . .)" (People v. Gardeley (1996) 14 Cal.4th 605, 619.) "The discretion to exclude hearsay applies to defense, as well as prosecution, expert evidence. (People v. Nicolaus, supra, 54 Cal.3d at pp. 582-583.)" (People v. Carpenter (1997) 15 Cal.4th 312, 403, superseded by statute on another point as discussed in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
Here, the trial court expressly allowed Dr. Coleman to testify regarding "how the family could impact the alleged victim's testimony" but disallowed his reference to Kathy R.'s extrajudicial statements. It was certainly within the court's discretion to exclude Kathy R.'s hearsay statements. (See People v. Nicolaus (1991) 54 Cal.3d 551, 582 ["It is well established that the court may, within its sound discretion, exclude the hearsay basis of an expert's opinion"].)
While the court never expressly ruled that Dr. Coleman could not state an opinion that Kathy R. exerted an undue influence upon any witness (cf. People v. Cornwell (2005) 37 Cal.4th 50, 81 [expert expressly precluded from testifying about "unconscious transference" because testimony was irrelevant and the theory that any witness unconsciously transferred an earlier sighting of defendant to the time and scene of the robbery was entirely speculative]), to the extent any such limitation was implicit, it was not an abuse of discretion. Defendant's offer of proof failed to show that Dr. Coleman's opinion would not be predicated upon factual speculation and conjecture concerning communications that might have taken place and did not establish that any such opinion would meet the requirements of Evidence Code section 801. The trial court acted within its discretion in restricting Dr. Coleman's testimony.
4. Defendant's son Dan Luna
Defendant asserts that the trial court erred in excluding testimony of defendant's son Dan concerning Kathy R.'s animosity toward defendant and her "outlandish allegations of sexual molestation." He maintains that the proffered testimony was not hearsay because it was not being offered for its truth but rather to establish Kathy R.'s state of mind. He argues that evidence of Kathy R.'s state of mind was relevant in this action because, if Kathy R. conveyed her beliefs regarding past molestations, she may have led witnesses to develop false memories of molestation.
"If the declarant's statement is an assertion of other facts, and the statement is offered as circumstantial evidence of the declarant's state of mind, no hearsay use of the statement is involved, and a hearsay exception is not needed for admissibility." (1 Jefferson, Cal. Evidence Benchbook, supra, § 14.11, p. 219.) In this case, however, defense counsel never explicitly offered Dan's testimony regarding Kathy R. for the nonhearsay purpose of circumstantially proving Kathy R.'s state of mind. (See Evid. Code, § 354.) But even if the court so understood the proffer, we discern no abuse of discretion.
"Any statement of a past event is, of course, a statement of the declarant's then existing state of mind — his memory or belief — concerning the past event." (Assem. Com. On Judiciary com., 29B Pt.4 West's Ann. Evid. Code (1995 ed.) foll. § 1250, p. 281.) A hearsay statement of facts other than the declarant's state of mind that is offered as circumstantial evidence of the declarant's state of mind and not for "the truth of the matter stated" does not implicate the hearsay rule and requires no hearsay exception. (See Assem. Com. On Judiciary com., 29B Pt.4 West's Ann. Evid. Code (1995 ed.) foll. § 1250, p. 281 ["no hearsay problem is involved if the declarant's statements [of facts other than existing mental state] are not being used to prove the truth of their contents but are being used as circumstantial evidence of the declarant's mental state"].)
"Past cases make it clear that an out-of-court statement is not made admissible simply because its proponent states a theory of admissibility not related to the truth of the matter asserted." (People v. Bunyard (1988) 45 Cal.3d 1189, 1204.) "A hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute." (People v. Armendariz (1984) 37 Cal.3d 573, 585.) Thus, even if an out-of-court statement is offered to circumstantially prove the declarant's state of mind, "if the declarant's state of mind does not have any tendency in reason to prove or disprove some disputed fact in the case, it is irrelevant and evidence of the out-of-court statement is inadmissible on the ground of irrelevancy . . . ." (1 Jefferson, Cal. Evidence Benchbook, supra, § 1.41, p. 27; see Evid. Code, §§ 210, 350.)
While there was brief testimony that Kathy R. and R. had talked, there was no evidence to suggest that Kathy R. made any remark during those conversations that might have swayed R. There was no evidence that any witness who testified that defendant had touched her when she was a young girl had been exposed, directly or indirectly, to suggestive comments by Kathy R., which conceivably might have led to imagined or inaccurate memories of inappropriate touching by defendant. The trial court could reasonably conclude that it was too speculative to draw any inference of false memories from evidence of Kathy R.'s state of mind. (See Evid. Code, § 210.)
"We review a trial court's relevance determination under the deferential abuse of discretion standard. (People v. Heard (2003) 31 Cal.4th 946, 973 . . . .)" (People v. Jablonski (2006) 37 Cal.4th 774, 821.) "[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion. [Citations.]" (People v. Babbitt, supra, 45 Cal.3d 660, 684.) It was well within the court's discretion to conclude that the proffered testimony by Dan Luna concerning Kathy R. was inadmissible because it was hearsay if offered for the truth of the matter stated and irrelevant for any nonhearsay purpose (see Evid. Code, §§ 210, 350, 1200) and, further, any possible remote probative value was outweighed by other valid considerations (see Evid. Code, § 352).
5. Cumulative Error
Defendant complains that the evidentiary errors require reversal whether considered singly or cumulatively because the "net result of the trial court's rulings was the exclusion of the defense theory of the case." Since we have found no error as to each individual evidentiary ruling, we have no cumulative error to assess for prejudice. (See People v. Jablonski, supra, 37 Cal.4th 774, 832.) We discuss the right to present a defense below.
D. Continuance
Defendant contends that the trial court abused its discretion by denying the defense counsel's request for a continuance to allow time for Kathy R. to be brought into court pursuant to the body attachment order. We discern no abuse of discretion in refusing to indefinitely continue trial until Kathy R. appeared.
"To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. (Owens v. Superior Court (1980) 28 Cal.3d 238, 250-251 . . .; see also § 1050.)" (People v. Howard (1992) 1 Cal.4th 1132, 1171.) " ' "The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' (People v. Zapien, supra, 4 Cal.4th at p. 972 . . ., quoting People v. Laursen (1972) 8 Cal.3d 192, 204 . . . .)" (People v. Barnett (1998) 17 Cal.4th 1044, 1125-1126.)
"Defendant bears the burden of establishing that denial of a continuance request was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003 . . . .)" (People v. Panah (2005) 35 Cal.4th 395, 423.) "In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. (Ibid.)" (People v. Barnett, supra, 17 Cal.4th at p. 1126.)
The record shows that the defense served Kathy R. with a subpoena only after the dismissal of count three during trial. Defense counsel apparently had no information regarding the prospects for locating Kathy R. and he made no showing that Kathy R.'s presence could be secured within a reasonable time. Defense counsel had no idea what Kathy R. would say and had not clearly established the relevance and admissibility of her potential testimony or its benefit to defendant. The trial court did allow a little extra time for Kathy R. to be brought before the court pursuant to the body attachment. Defendant has not demonstrated any abuse of discretion or prejudice in refusing to indefinitely continue trial until Kathy R. appeared.
E. Constitutional Right to Present a Defense
Defendant contends that the court's limitations on the proposed testimony from Kathy R., Dr. Coleman, and defendant's son, together with the court's failure to postpone trial to allow time for Kathy R. to be brought to court pursuant to the court's body attachment order, denied him his right to present a complete defense guaranteed by the compulsory process clause of the Sixth Amendment or the due process clause of the Fourteenth Amendment. Even assuming the constitutional issues were preserved for appeal although not raised below (see People v. Partida (2005) 37 Cal.4th 428, 431, 433-439 [on appeal, defendant may argue the asserted evidentiary error in overruling objection had the additional legal consequence of violating due process]; but see People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 [defendant's failure to argue below that exclusion of the expert testimony constituted constitutional error waived issue]), we conclude defendant was not denied his constitutional right to present a defense.
"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, supra, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.' California v. Trombetta, 467 U.S., at 485, 104 S.Ct., at 2532; cf. Strickland v. Washington, 466 U.S. 668, 684-685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ('The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment')." (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142].)
"Few rights are more fundamental than that of an accused to present witnesses in his own defense. [Citations.] In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." (Chambers v. Mississippi (1973) 410 U.S. 284, 302 [93 S.Ct. 1038].) "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.' Rock, supra, at 56, 107 S.Ct., at 2711; accord, [Michigan v. Lucas (1991) 500 U.S. 145,] 151, 111 S.Ct., at 1747." (U.S. v. Scheffer (1998) 523 U.S. 303, 308 [118 S.Ct. 1261].)
A defendant has no constitutional right to present irrelevant evidence. (U.S. v. Tatoyan (9th Cir. 2007) 474 F.3d 1174, 1179, fn. 6.) The exclusion of irrelevant evidence does not deprive a defendant of his right to present a defense. (See People v. Thornton, supra, 41 Cal.4th 391, 445.)
Even "[a] defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. See Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653-654, 98 L.Ed.2d 798 (1988); Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987); Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973)." (U.S. v. Scheffer, supra, 523 U.S. at p. 308.) "[T]he proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. . . . 'The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.' Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). Relevant evidence may, for example, be excluded on account of a defendant's failure to comply with procedural requirements. See Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 1747, 114 L.Ed.2d 205 (1991). And any number of familiar and unquestionably constitutional evidentiary rules . . . authorize the exclusion of relevant evidence. For example, Federal . . . Rule of Evidence 403 provides: 'Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' . . . Hearsay rules, see Fed. Rule Evid. 802, similarly prohibit the introduction of testimony which, though unquestionably relevant, is deemed insufficiently reliable." (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [116 S.Ct. 2013] (plurality opinion), fn. omitted.)
"A defendant has the general right to offer a defense through the testimony of his or her witnesses (Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019), but a state court's application of ordinary rules of evidence . . . generally does not infringe upon this right. (People v. Lawley, supra, 27 Cal.4th at pp. 154-155 . . .; People v. Lucas (1995) 12 Cal.4th 415, 464 . . . .)" (People v. Cornwell, supra, 37 Cal.4th at p. 82.) There is "nothing fundamentally unfair about applying ordinary rules of evidence to exclude speculative opinion testimony . . . ." (Id. at p. 84.)
We have already found that the trial court did not abuse its discretion in making any of the challenged rulings based upon its application of the ordinary rules of evidence and procedure. Those rulings did not offend defendant's right to present a defense or render the trial fundamentally unfair.
F. Ineffective Assistance of Counsel
1. Failure to Remind Trial Court of R.'s Testimony
Defendant claims that defense counsel rendered ineffective assistance of counsel by failing to remind the trial court that there was evidence of a connection between Kathy R. and R. in that R. testified at trial that she talked to Kathy R. about being molested by defendant. He maintains that this omission was critical since his entire defense was predicated on theory that " [Kathy R.] had convinced [R.] that she was the victim of sexual abuse, and that [R.] had in turn convinced her younger sister [A.], and her younger cousin [S.] that they too were victims of sexual abuse." Defendant has failed to demonstrate that his defense counsel rendered ineffective assistance.
"To prevail on a claim of ineffective assistance of counsel, a defendant ' "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." ' (People v. Hart, supra, 20 Cal.4th at p. 623.) . . . Moreover, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington, supra, 466 U.S. at p. 694 [104 S.Ct. at p. 2068].)" (People v. Maury (2003) 30 Cal.4th 342, 389.)
Even if defense counsel did not point out R.'s testimony whenever the trial court voiced its belief that the evidence did not show a connection between Kathy R. and any witness, defense counsel could have reasonably concluded that such argument was not useful because R. referred only briefly to Kathy R. and had not testified about any specific communication that might have corrupted R.'s memory. More importantly, defendant has not established that his defense counsel's omissions resulted in prejudice. R.'s testimony that she had spoken to Kathy R. at some point about what happened with defendant does not, as defendant asserts, suggest that Kathy R. held a "central position in a network in which allegations that Mr. Luna had molested the young girls in the family were discussed" and did not render evidence of Kathy R.'s state of mind relevant. Defendant has not satisfied either the deficient performance or the prejudice prong of Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052].
2. Failure to Articulate Theory for Admission of Kathy R.'s Hearsay Statements
On appeal, defendant asserts that defense counsel's performance was deficient insofar as he failed to articulate a nonhearsay purpose supporting the introduction into evidence of Kathy R.'s out-of-court statements. He maintains that those statements were admissible as circumstantial evidence of Kathy R.'s state of mind.
We accept that the hearsay rule would not have precluded admission of Kathy R.'s out-of-court statements if they were offered for a nonhearsay purpose and not for the truth of the matters asserted. (See Evid. Code, § 1200 ["hearsay evidence" defined as evidence of statement "made other than by a witness while testifying at the hearing" "offered to prove the truth of the matter stated"]; see ante, fn. 3.) Regardless, defendant has not demonstrated the prejudice required for an ineffective assistance claim. There is not a reasonable probability that the result of the proceeding would have been different had defense counsel offered Kathy R.'s out-of-court statements to circumstantially prove Kathy R.'s state of mind since such state of mind evidence could reasonably be determined to be irrelevant and inadmissible (Evid. Code, § 210, 350) and such evidence, even assuming arguendo that it had any remote probative value, was certainly excludible under Evidence Code section 352. (See Strickland v. Washington, supra, 466 U.S. at p. 694.)
G. In Camera Review
Defendant asks this court to independently examine the psychiatric records reviewed by the trial court in camera to determine, in light of Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989], whether they contain "information, including impeachment information, that is favorable [to him] and material on the question of guilt." The People state that this court's "examination of the confidential records appears to be appropriate" in light of People v. Webb (1993) 6 Cal.4th 494. But they explain that they do not address the issue whether disclosure of such information is constitutionally compelled since defendant does not raise it.
In Pennsylvania v. Ritchie, supra, 480 U.S. at pages 42-43, the general question presented was "whether and to what extent a State's interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence." Ritchie argued, among other things, "that the failure to disclose information that might have made cross-examination more effective undermines the Confrontation Clause's purpose of increasing the accuracy of the truth-finding process at trial." (Id. at p. 52.) A plurality of the United States Supreme Court rejected the argument that the Sixth Amendment right to confrontation created a concomitant right to pretrial discovery, stating: "The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." (Id. at p. 53, fn. omitted.)
In People v. Hammon (1997) 15 Cal.4th 1117, the California Supreme Court "decline[d] to extend the defendant's Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information." (Id. at p. 1128.) The Supreme Court concluded that "the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers" (id. at p. 1119) and "the trial court did not err in refusing to review in camera the documents sought by subpoena" (id. at p.1128). "Under Hammon, supra, 15 Cal.4th 1117 . . ., psychiatric material is generally undiscoverable prior to trial." (People v. Gurule (2002) 28 Cal.4th 557, 592.)
The United States Supreme Court recognized in Pennsylvania v. Ritchie that as a matter of due process, however, "the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment." (480 U.S. at p. 57.) The court determined that "Ritchie's interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the [Pennsylvania Children and Youth Services] files be submitted only to the trial court for in camera review." (Id. at p. 60.)
In Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194], the U.S. Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." "Impeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972)." (U.S. v. Bagley (1985) 473 U.S. 667, 676 [105 S.Ct. 3375].)
In People v. Webb (1993) 6 Cal.4th 494, the defendant argued that "limited pretrial disclosure of the psychiatric records prejudicially undermined" his right to effectively cross-examine a prosecution witness at trial. (Id. at p. 517.) The California Supreme Court "question[ed] whether records stemming from [the witness's] voluntary treatment by private and county therapists can be deemed 'in the possession' of the 'government' in the manner assumed by Ritchie." (Id. at p. 518.) It observed that "[t]he records were not generated or obtained by the People in the course of a criminal investigation, and the People have had no greater access to them than defendant." (Ibid.) In the court's opinion, "[g]iven the strong policy of protecting a patient's treatment history, it seems likely that defendant has no constitutional right to examine the records even if they are 'material' to the case." (Ibid.) Nevertheless, the court reviewed the records and determined that, "even assuming Ritchie applie[d], no error occurred." (Ibid.)
Subsequent to Webb, the California Supreme Court noted: "Due process may require the state to disclose exculpatory evidence, including psychiatric records of a witness, when such material is already in the state's possession and is not made absolutely privileged by state law. (Ritchie, supra, 480 U.S. 39, 57-58 [107 S.Ct. 989, 1001]; see also People v. Webb (1993) 6 Cal.4th 494, 518 . . . .)" (People v. Anderson (2001) 25 Cal.4th 543, 577, fn. 11.)
In this case, we have carefully reviewed the confidential records examined by the trial court in camera. Even assuming Ritchie applies, we find no error.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.