Opinion
A147799
10-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS JOSE MONTES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-150746-6)
Jesus Jose Montes was tried and convicted, by a jury, of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)), battery (id., § 242), and two lewd acts on a child under the age of 14 (id., § 288, subd. (a)). The trial court sentenced Montes to a term of 15 years to life in prison. Montes appeals, arguing: (1) the trial court abused its discretion in deeming the victim, Jane Doe, competent to testify under Evidence Code section 701; and (2) the trial court violated Montes's right to confront the witnesses against him by improperly limiting defense counsel's cross-examination of Doe's mother. We affirm.
Undesignated statutory references are to the Evidence Code.
Montes filed a separate petition for writ of habeas corpus (no. A152234), asserting that his trial counsel was ineffective for failing to investigate Doe's intellectual functioning. By separate order filed this date, we issue an order to show cause, returnable to the Contra Costa Superior Court, in the habeas corpus proceeding.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, the Contra Costa County District Attorney charged Montes, in an amended information, with two counts of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts one & two) and two counts of lewd acts on a child under the age of 14 (id., § 288, subd. (a); counts three & four). At trial, the prosecutor elected to proceed on the theory that counts one and three were alternative counts based, respectively, on evidence Montes either digitally penetrated or touched Doe's vagina. Counts two and four were also alternative counts, based on evidence Montes either digitally penetrated or touched Doe's anus.
Prosecution Evidence
In April 2015, Doe lived in San Pablo with her mother (Maria), Maria's four other children, Maria's brother, Anna G., Doe's grandmother (Elsa), and Montes. Montes was in a romantic relationship with Elsa and slept in her room. At the time of trial, Doe was seven years old and repeating first grade.
Doe's Testimony
Doe initially testified she did not recognize Montes and had never seen him before. When asked if she knew who "Philly" was, Doe said "my grandma's dad" and that he lived with grandma. Doe testified that she lived with "grandma's dad." But when shown a picture of her house, Doe said "grandma's dad" did not live there. "He lives far away, but I don't know where he lives." She then said "[h]e used to stay in my grandma's room with her. He sleeps."
Maria testified Doe calls several different men "Philly," including Montes, the father of Maria's two youngest children, and Maria's boss, "because it becomes complicated for [Doe] to pronounce their names." On cross-examination, Doe was asked if she knew her mother's and grandmother's boss, who was named Phillip or Philly. Doe said, "He's already in jail (indicating)." She also said that the person who touched her was "asleeper" at the time.
Doe testified that "grandma's dad," named Montes, touched her. Doe had been alone with Montes in Elsa's room when Doe was looking for something. She remembered talking to a police officer about Montes "[p]utting [her] fronts and [her] back" in Elsa's room. When the prosecutor tried to determine how Doe had been touched, the following exchange occurred:
"Q. How were your clothes when that person was touching you?
"A. He went to the police.
"Q. Okay. Who went to the police?
Doe had previously testified that "Miton" was Montes.
"Q. Okay.
"A. He went to the police because we call. Right now, we call the police take him to jail.
"Q. How were your clothes when that person was touching you?
"A. With his hands.
"Q. Okay. Is that what he touched you with?
"A. (Nods head.) [¶] With their hands (indicating).
"Q. Were you wearing clothes?
"A. Yes."
When asked if she was touched over or under her clothes, Doe said, "Over the clothes, and my back one." After Doe left Elsa's room, she went to bed and did not tell anyone in her family. She did tell a police officer, who took Montes to jail. She again said she did not see Montes in the courtroom, explaining he was "already in jail."
On redirect, Doe testified Montes was asleep when he touched her, that his eyes were closed, and that he did not say anything. When asked how he touched her if he was asleep, Doe said: "He was not sleeping. He was waking and he was sleeping now because I leaved." She then said Montes was awake when he touched her. When asked again if his eyes were open when he touched her, Doe said, "No, he was sleeping a lot. He take him already in jail (unintelligible). He already escape." When asked where she was when Montes touched her, Doe said, "I was running and then I was like going to somewhere to pick something." Doe said Montes was not laying down when he touched her, but then said Montes was sleeping. Doe was standing next to Montes when the touching occurred. The prosecutor asked, "How did his hand move when he touched you?" Doe replied: "Not moving. He was only sleeping forever. Really, a lot." Doe's answer prompted the following exchange:
"Q. Did his hand move to touch your part or no?
"A. No.
"Q. So did you sit on his hand?
"A. Huh-uh.
"Q. Can you explain to me how his hand touched your front part?
"A. Well, he was sleeping forever and I come back. I am sleeping, but—I want to go to bed too. But I don't want Miton to come in my house or he's going to touch me in the fronts or the butt.
"THE COURT: Can you say that again? What? I couldn't quite understand. You said you wanted to go sleeping too, but what? Do you remember what you just said?
"THE WITNESS: Yeah, I don't want to sleep with this guy because this is getting more dangerous. You're touching my fronts and my back, so I want him to go in jail. Not me because I didn't do anything today."
Doe's Mother's Testimony
Maria testified that, on April 11, 2015, Montes returned home around 8:30 p.m. Maria observed Montes having difficulty keeping his balance and supporting himself against the wall. Fifteen minutes after his return, Maria was in the kitchen and heard Doe in Montes's bedroom. It sounded like Doe was laughing or playing. Maria called out to Doe to leave the bedroom.
Doe walked into the kitchen and said Montes, who she called "Phillip" or "Philly," had touched her "booty." Doe also indicated, with her hand, that Montes had touched her vagina. Although Maria speaks only Spanish and Doe speaks only English, Maria understood what Doe said. With the help of Anna G., Maria called the police.
On the night in question, Montes was the only man she called "Philly" at the house.
Police Investigation
San Pablo Police Department Officer Lluvia Lopez responded at 10:00 p.m. Lopez found Montes sleeping, face down, in the bedroom. Montes was difficult to wake, but Lopez could not recall if he appeared intoxicated. Lopez interviewed Doe in a private room with the door closed. The audio recording of the interview was played for the jury. Doe said Philly touched her "butt" and "weinies." Doe said he touched her "[i]nside on my butt" and "in here and there." Doe repeatedly pointed to her vagina to demonstrate the other place she had been touched.
Doe was examined that same night by a sexual assault response team (SART). Doe told the SART nurse that, in her grandmother' room, Philly put his hands inside both the front and back of her pants, Philly touched her "booty" and "butthole," and that Philly penetrated both her "butthole" and "front waterfall." Doe said the touching hurt. Doe similarly told the examining SART doctor, "I got hurt by Philly. His hand was inside my pants in the front and in the back. He put his finger in the hole. Philly's clothes stayed on. My clothes stayed on. I didn't touch him." Doe demonstrated how Philly touched both her "waterfall" and "butthole" by making a fist with her left hand and inserting her right index finger into the bottom of her left fist. The results of the SART exam were normal.
On April 17, 2015, Doe was interviewed at the Children's Interview Center (CIC), a facility specifically designed for interviewing children suspected of being victims of abuse. A video recording of the interview was played for the jury. Doe was able to answer questions about her name, her most recent birthday, and school. She also exhibited some concrete understanding of the difference between the truth and a lie, when the CIC interviewer asked her questions about different colored pencils. However, when asked what it means to tell the truth, Doe responded, "Truth. Truth." The interviewer asked Doe, "What does truth mean?" Doe responded, "Truth and dare."
When shown a brown pencil, and told it was green, Doe correctly identified the statement as a lie. However, when shown a yellow pencil and told it was yellow, Doe said, "That's a lie." Doe explained, "You said orange." The interviewer finally showed Doe a green pencil and said it was green. Doe correctly identified this as the truth.
Montes attempts to use these answers to demonstrate Doe was incompetent to testify at trial. However, because the April 2015 interview was conducted almost five months before trial, and her competency during the CIC interview is not directly at issue, we focus instead on her testimony at trial and the competency hearing. With respect to child witnesses, a finding of incompetency to testify at trial raises a presumption of incompetency at the time earlier out of court statements were made. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1018 ["[i]f a child is incompetent at a given point in time by virtue of his or her youth, it can reasonably be presumed that the child was incompetent at an earlier point in time" (italics added)].) We know of no authority for the contrary proposition.
Doe told the CIC interviewer she had gone into her grandmother's room to retrieve some food, when Montes grabbed her. She said, "No" and told Montes to stop, but he touched her "butt" and her "fronts" with his hand, inside her pants. He put his finger "in [her] little hole" in her butt and "tipped the hole" in front. Doe said he did not say anything, when he touched her, because he was sleeping. She also said he touched her "100 times" and then said, he touched her "two times"—in her "butt" and her "front"—and that "it hurt[]."
Defense Case
Montes testified that on April 11, 2015, around midday, he visited two bars where he "had some beers." He returned to the home he shared with Elsa shortly after 8:00 p.m. Montes stated he was not "drunk" at that time, but admitted previously telling the police he had also used cocaine and was feeling the effects of both the cocaine and alcohol when he returned home. Montes stated he went straight to bed and slept until the police woke him. He denied touching Doe.
At trial, Montes claimed he had been confused about the date and ingested cocaine on April 10, 2015.
Jury Verdict and Sentence
The jury found Montes guilty of two counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts three & four), and one count of sexual penetration of a child 10 years of age or younger (id., § 288.7, subd. (b); count two). With respect to count one, Montes was convicted only of the lesser offense of battery (id., § 242); he was acquitted on the greater charge involving penetration of Doe's vagina (id., § 288.7, subd. (b)). Montes was sentenced to a term of 15 years to life in state prison. This timely appeal followed.
II. DISCUSSION
Montes argues the trial court abused its discretion in deeming Doe competent to testify under section 701, and his right to confront witnesses against him was violated by the trial court's limit on defense counsel's cross-examination of Doe's mother. Montes shows no error. A. Doe's Competency to Testify
Montes contends the trial court abused its discretion by overruling his competency objection to Doe's testimony. "Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." (§ 700.) "A person is disqualified to be a witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him [or her]; or [¶] (2) Incapable of understanding the duty of a witness to tell the truth." (§ 701, subd. (a).) Montes challenges only Doe's capacity to understand the duty to tell the truth.
Montes bore the burden of establishing Doe's incompetence by a preponderance of the evidence. (People v. Lewis (2001) 26 Cal.4th 334, 360 (Lewis); People v. Farley (1979) 90 Cal.App.3d 851, 868-869.) A witness's capacity to communicate, and to understand the duty of truthful testimony, are preliminary facts determined exclusively by the trial court and its determination "will be upheld in the absence of a clear abuse of discretion." (Lewis, at p. 360; accord, People v. Anderson (2001) 25 Cal.4th 543, 573.)
1. Background
Defense counsel asked the court to preclude Doe from testifying unless she was found competent. The court held a section 402 hearing, in chambers, at which Doe testified. Doe promised to tell the truth and testified about her age and family members. The following colloquy then occurred between the Prosecutor and Doe:
"Q. Let me ask you some questions about the truth versus a lie. Okay. Do you see this pen I'm holding up? [¶] . . . [¶]
"A. Oh, yes.
"Q. What color is this pen?
"A. Pink.
"Q. Okay. If I said this pen was a blue pen, would that be a truth or a lie?
"A. A lie.
"Q. Okay. Why would it be a lie?
"A. Because it's not blue. It's only pink.
"Q. Okay. And what about this pen, what color is this pen?
"A. Yellow.
"Q. If I said this pen was green, would that be the truth or a lie?
"A. Lie.
"Q. Okay. [¶] . . .[¶] . . . For the record, I did show her a pink pen first. And for the record, the second pen I showed her was a yellow pen."
The Prosecutor also asked Doe:
"Q. Is it better to tell the truth or a lie?
"A. The truth.
"Q. . . . [¶] When . . . you're at school, what happens if someone tells a lie?
"A. It tells on peoples.
"Q. It tells on people. Okay.
"A. Some tells some teachers like, I'm gonna tell on you because you pushed me.
"Q. Okay. What if someone told a lie to the teacher, what would happen to that person?
"A. Um, a timeout. [¶] . . . [¶]
"Q. Do you promise to tell the truth today?
"A. Yeah."
When defense counsel began his questioning, Doe's answers became more muddled:
"Q. [Doe], is it important to tell the truth to your mother?
"A. Um, yeah.
"Q. How come?
"A. Um, how much, much. I would say much (unintelligible.)
"Q. What happens if you don't tell the truth to your mother?
"A. Um, I don't want to do that to my mom because I don't want to. [¶] . . . [¶]
"Q. What happens when you lie to your mother?
"A. I lie to my mother what we were going here today. We go on a school day. We didn't went to school. [¶] Really getting bored. Me or my mom. She really likes it hot. [¶] . . . [¶]
"Q. And what would happen to you at home if you didn't tell your mother the truth?
"A. Well, I'm not telling the truth because not right here and not my house because I can't do the truth on it. Only right here you can do the truth. [¶] . . . [¶]
"Q. Only here you can do the truth?
"A. Yeah, not right at my house because I need to relax a little bit.
"Q. Okay. Um, do you have to tell the truth at home?
"A. Um, no.
"Q. Okay.
"A. My grandma is gonna be mad or my sister.
"Q. If what? Why would your grandma or your sister be mad?
"A. Because I don't want to tell the truth today. [¶] Ow, my ear hurts because I'm getting more—my eyes hurts.
"Q. What do you mean you don't want to do the truth today?
"A. I'm very bored. Tomorrow . . . is gonna be school."
On redirect, Doe made clear she did not want to be testifying in court and was bored. She also testified:
"Q. . . . Do you promise to tell the truth today?
"A. (Nods head.)
"[THE PROSECUTOR]: For the record, she's shaking her head up and down.
"THE WITNESS: Five so two.
"[THE PROSECUTOR]: What do you mean five and two?
"A. We already done it. We already have two already. We already have five. So we done that. Now, two (indicating). That's all. That's all.
"Q. What do you mean by five and two?
"A. The two—these are gone already, and two (indicating), they're already done. Already done.
"Q. What two are you talking about? What's the two?
"A. And you're done with the two of them, you go home.
"Q. Are you talking about questions?
"A. Yes."
The trial court found Doe competent to testify, reasoning: "When one looks simply at the direct examination, [Doe] would clearly pass the competency test. It is when [defense counsel] started asking about what happens at home that we ran into some unusual answers. But on balance, I am going to find that she's competent to testify. It may be that she can't tell the truth about this incident at home; I don't know. But it was clear that she does have the capacity to communicate and she understands a duty to tell the truth in court. And she may understand the duty to tell the truth at school. It's at home that there appears to be some confusion." (Italics added.) The trial court inferred that Doe "did not want to be [in court]."
When she testified before the jury, Doe said it would be a lie to say a green pen was pink or an orange pen was yellow. However, when asked if it was better to tell the truth or a lie, Doe replied, "[a] lie." When asked if she understood the difference between the truth and a lie, Doe said, "I think; I don't know." Next, the prosecutor gave Doe a series of instructions to follow, such as placing a pen in front of her nose, on top of her head, and inside a Kleenex box, which Doe was able to successfully follow. When asked what happened if someone lied at school, Doe said, "A true don't lie anyone. . . . Someone like lies on peoples and peoples cried." She agreed that if people lie, people will cry. She said that her teacher would not do anything if a student lies. But then she said the teacher would change the color of a lying student's card to yellow.
On cross-examination, Doe contradicted this testimony. When asked if they give yellow cards at school if someone gets in trouble, Doe said, "No." She said, if you tell a lie at school, "You can't do the truth or dare." Defense counsel also asked Doe what happens if she lies to her mother. Doe said, "I don't lie to my mother."
Defense counsel renewed his objection and ultimately moved to strike Doe's testimony on incompetency grounds. The trial court denied Montes's motion to strike. The court observed: "[I]t was quite dismaying to the court that she could not articulate an understanding of the difference between truth and a lie, at least at first. Then she didn't seem to be aware of any consequences for lying. And I think it may be the way it's presented to her. We're using terms with limited familiarity for her, is my impression. So while she certainly knows her colors, and knows what inside means, the standard is low as far as competency and I will find her competent." (Italics added.)
2. Analysis
Montes acknowledges that Doe "was able, at times, to answer rudimentary questions about the difference between a lie and the truth," but insists there was no evidence she understood her duty to tell the truth. The People, on the other hand, contend we must defer to the trial court's resolution of Doe's conflicting testimony. Although this is certainly a close case, the People have the better argument.
Montes relies on In re Crystal J. (1990) 218 Cal.App.3d 596, in which the trial court deemed a seven year old incompetent to testify when he repeatedly stated he did not know the difference between the truth and a lie. (Id. at p. 601.) The reviewing court upheld that ruling, finding no abuse of discretion. (Ibid.)
We fail to see how the Crystal J. court's affirmance of an incompetency determination suggests the trial court's competence ruling, in this case, was an abuse of discretion. Certainly, Doe was far from an ideal witness. Her responses to questions were occasionally nonsensical and she repeatedly contradicted herself. However, many of the conflicts in Doe's testimony were solely for the jury to resolve. (See Lewis, supra, 26 Cal.4th at p. 361 ["[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness"]; People v. Mincey (1992) 2 Cal.4th 408, 444 ["[i]nconsistencies in testimony and a failure to remember aspects of the subject of the testimony . . . do not disqualify a witness" but merely "present questions of credibility for resolution by the trier of fact"].) More problematic is that Doe also demonstrated repeatedly that she was unable to answer abstract questions about the meaning of the words "truth" and "lie." Yet we are unaware of any authority suggesting such an abstract understanding is required. (See § 701, subd. (a)(2); In re Ana C. (2012) 204 Cal.App.4th 1317, 1326-1329 [no abuse of discretion when juvenile court found competent a moderately retarded 14 year old, who demonstrated her understanding of the duty to tell truth despite answering "no" when asked if she knew what it meant to tell the truth or if it was wrong to tell a lie].)
When it came to her concrete understanding of the duty to tell the truth, Doe's understanding came through. Doe correctly testified it would be a lie to say a pink pen was blue. She also repeatedly expressed her understanding that when she was asked a question in court, she was to tell the truth. Most importantly, with the exception of one answer, Doe's testimony was clear that she understood she could get in trouble and hurt other people if she lied. It is not determinative that she provided conflicting answers on the exact nature of such consequences. Doe was surely correct that lying may produce numerous and varied consequences.
The record here presented a close question for the trial court. However, we see no basis to distinguish this case from authority in which similar competence findings, on mixed records, have been upheld. (See In re Ana C., supra, 204 Cal.App.4th at pp. 1326-1329; People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 936, 959-961 [fantastical statements by five-year-old witness insufficient to disturb trial court's competency ruling]; People v. Anderson, supra, 25 Cal.4th at p. 574 [prosecution witness, who testified about delusions, including her imaginary son's presence during murder, not incompetent]; People v. Farley, supra, 90 Cal.App.3d at pp. 868-869 [10-year-old witness not incompetent to testify when she stated she knew the difference between telling truth and lying, but at times said "she would not tell the truth"]; People v. Jones (1968) 268 Cal.App.2d 161, 164-166 [prosecution witness, whose testimony was "confused in several areas" and whom the trial judge characterized as a "mental defective," not incompetent].)
The trial court observed Doe's demeanor while testifying and thus, we must defer to its assessment that Doe's conflicting answers were a result of unfamiliarity with abstract terminology, rather than a reflection that she did not understand the difference between the truth and a lie. (See People v. Farley, supra, 90 Cal.App.3d at p. 869 [trial court did not abuse its discretion in finding witness competent when "the evidence was conflicting and capable of divergent inferences regarding the 'preliminary fact' of whether [the child witness] had the capacity to understand the duty of a witness to tell the truth"].) The trial court did not abuse its discretion. B. Limits on Cross-Examination of Maria
Montes also maintains the trial court improperly limited cross-examination of a prosecution witness, and thereby violated his right to confront the witnesses against him. "We review a trial court's decision to exclude evidence for abuse of discretion. [Citation.] The decision to exclude evidence 'will not be disturbed except on a showing [that] 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. Peoples (2016) 62 Cal.4th 718, 757.)
1. Background
On direct examination, Maria identified Doe's teacher by name and stated that Doe had the same teacher during the previous school year. When the prosecutor asked Maria if Doe had ever lied to her, the trial court sustained defense counsel's foundation and section 352 objections. The trial court stated: "This jury saw [Doe]. They can judge . . . what they saw."
On cross-examination, defense counsel established Doe was repeating first grade. The trial court sustained, on foundation grounds, the prosecutor's objection to the next (and final) question asked of Maria, on cross-examination—was she "aware of why [Doe was] repeating first grade?" After the trial court sustained the prosecutor's objection, defense counsel did not make any offer of proof. Instead, he stated he had no further questions. The prosecutor then conducted redirect examination, and Maria was excused (subject to recall). Only after the following witness (Officer Lopez) was excused did defense counsel make a further record, outside the presence of the jury:
"[DEFENSE COUNSEL]: I wasn't aware [until] today that [Doe] had repeated the first grade and it causes me a little bit of concern. I did ask the mom, Maria, why she had to repeat the first grade. And I don't know if there is something going on that I don't know about, some developmental disability; maybe it's just a language issue with the child. I don't know. I don't know if we need to have some sort of hearing and—I don't even know if the mother knows why her child—and I understand probably why the objection was made, but I think it's an area that I would like to maybe address with the mother. I did not subpoena the school records because I did not think this was going to be an issue.
"THE COURT: Here's, off the top of my head, the problem. The child is clearly delayed developmentally in that she does not speak or act like any seven-year-old that I have ever encountered. She seems to act more at the three- or four-year-old level. That's the court's opinion. . . . I don't know that repeating the first grade is the key here as far as any developmental delays. I think counsel, based on discovery, would recognize that there were delays. [¶] So I'm not inclined to go into why she . . . had to repeat the first grade. I don't think that is particularly key as much as how she presents herself.
"[DEFENSE COUNSEL]: I guess my only concern [is] if there's some underlying condition.
"THE COURT: Well, you should have had that concern based on what you viewed in the discovery, not just based on her repeating the first grade. I mean, she's a seven-year-old who is in the first grade. That might have been a clue that she was repeating. [¶] Now, certainly the fact that she speaks English and her mother speaks Spanish, that's very odd, but nobody really inquired, either in the 402 hearings or on the stand, why that was. And I don't know why counsel chose not to, but that's what the evidence is. So I don't know where you're going with this.
"[DEFENSE COUNSEL]: I don't know either. It just struck me. . . . So, . . . I guess what I was requesting is a hearing outside the presence of the jury with the mother.
"THE COURT: To what end?
"[DEFENSE COUNSEL]: To discern whether or not [Doe] has some learning disorder, educational disorder, something to that effect.
"THE COURT: And how would that affect what has gone on at this time?
"[DEFENSE COUNSEL]: I think it would be evidence that could be presented to the jury to show about her credibility and her ability to remember and relate facts. That could be important for the jurors to know.
"THE COURT: I, again, am not sure how that one fact stated by the mother, that she repeated first grade, given all the other evidence concerning her demeanor and her lack of ability to communicate and her lack of ability to be consistent has not already demonstrated—that has been demonstrated. [¶] So Mr. [Prosecutor]?
"[PROSECUTOR]: I'll submit to the court. I would object to a 402 hearing with the mother for the same reason.
"THE COURT: Yes, I think they are discovery issues and they are not triggered by the mother's testimony. The concerns you're addressing are not triggered simply by the mother stating that she repeated first grade." (Italics added.)
2. Analysis
An objection was sustained to only one question asked of Maria on cross-examination. Specifically, the trial court sustained the prosecutor's foundation objection when defense counsel asked Maria whether she knew "why [Does was] repeating first grade?" After the objection was sustained, defense counsel asked no further questions. Thus, the only line of questioning raised was whether Maria knew why Doe was repeating the first grade. The only evidence excluded by the trial court was "yes" or "no." On appeal, Montes contends the trial court abused its discretion in sustaining the foundation objection because the question was "designed to establish a foundation for further questioning" or was preliminary to "show[ing] that the witness had personal knowledge about why Doe was required to repeat first grade." But Montes's quarrel is not really with this evidentiary ruling. Neither at the time the objection was made, nor in his later offer of proof, did Montes raise this argument or otherwise explain how Maria would have personal, rather than hearsay, knowledge of why Doe was repeating first grade. In fact, Montes's trial counsel conceded he understood why the objection was made. Instead, in his late offer of proof, Montes asserted, for the first time, the specific claim he raises now—that evidence of any possible developmental or intellectual disability Doe suffers was relevant to her credibility.
In his opening brief on appeal, Montes asserts: "[D]irect evidence about deficits in Doe's intellectual functioning . . . would have been significant evidence about her credibility. It would not only have reinforced and supported whatever conclusions the jury may have drawn from Doe's inability to communicate and her demeanor, it would have helped explain those deficits." Perhaps. But the disputed question to which objection was sustained did not seek to elicit direct evidence about deficits in Doe's intellectual functioning, and counsel made no effort to establish that Maria would have been qualified to opine on whether Doe had a "learning disorder" or "educational disorder," or to establish any link between such disorders and Doe's apparent communications deficits. Montes forfeited this broader argument by failing to ask questions eliciting such information, if it existed, and only making an offer of proof well after Maria had been excused. We are aware that a specific offer of proof is normally not required if evidence is excluded in response to a party's questions on cross-examination (§ 354, subd. (c); Tossman v. Newman (1951) 37 Cal.2d 522, 525). Here, however, defense counsel did not ask Maria (or Doe), during cross-examination, if Doe had any underlying disability, and the trial court did not restrict Montes's cross-examination of Maria to the point that we can agree with him that it would have been futile to pursue other lines of questioning on the topic. (§ 354, subds. (b), (c).) "If the evidence the defendant seeks to elicit on cross-examination is not within the scope of the direct examination, an offer of proof is required to preserve the issue." (People v. Foss (2007) 155 Cal.App.4th 113, 127.)
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error . . . is of the opinion that the error . . . complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." (§ 354, italics added.)
Even if we assume Montes's argument was preserved by the subsequent (and speculative) offer of proof, the court did not abuse its discretion in excluding, under section 352, testimony from Maria about any intellectual disability Doe may have suffered. Montes's theory is that, if Doe repeated first grade due to an intellectual disability, it would call into question her credibility by challenging her capacity to perceive and recollect. Montes is correct that a party may treat a witness's capacity to perceive and recollect as " 'a matter of impeachment,' and . . . impeach [the witness's] capacity through cross-examination and expert testimony. (. . . § 780, subd. (c); see also People v. Cooks (1983) 141 Cal.App.3d 224, 302 ['A witness may be cross-examined about his mental condition or emotional stability to the extent it may affect his powers of perception, memory (recollection), or communication'].)" (Lewis, supra, 26 Cal.4th at p. 357.) "Generally . . . attempts to impeach a prosecution witness by expert psychiatric testimony have been rejected [citations], except in certain sex offense cases." (Cooks, at p. 302.) However, Penal Code section 1112 precludes ordering a psychiatric examination for the purpose of evaluating the complaining witness's credibility.
Montes asserts we cannot address section 352 balancing on appeal because the trial court did not address it. We disagree. The trial court appears to have conducted section 352 analysis—suggesting that any testimony Maria could give of intellectual or developmental disability would not be particularly probative and would be cumulative. "[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under section 352." (People v. Williams (1997) 16 Cal.4th 153, 213.)
We are similarly unpersuaded by Montes's contention the trial court necessarily abused its discretion because it declined to hold a section 402 hearing to determine what Maria knew about the reasons Doe was repeating first grade. Montes asserts: "Because the trial court refused to hold a hearing to determine what admissible information regarding Doe's intellectual functioning her mother had, the trial court simply did not have the facts necessary for a proper exercise of discretion." The trial court's "broad discretion" extends to "whether or not to decide [such] questions under . . . section 402." (People v. Williams, supra, 16 Cal.4th at p. 196.) Montes does not explain why the trial court was obligated to further explore the subject absent something more than speculation on defense counsel's part.
Section 780 provides, in relevant part: "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, including but not limited to any of the following: [¶] (a) His demeanor while testifying and the manner in which he testifies. [¶] (b) The character of his testimony. [¶] (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies." (Italics added.) --------
If Doe's capacity to perceive and recollect was impaired by a developmental or intellectual disability, this may have been a relevant area of inquiry under section 780. However, section 780 "does not require that any and all questions relative to credibility be allowed on cross-examination." (People v. Alfaro (1976) 61 Cal.App.3d 414, 423; see People v. Ayala (2000) 23 Cal.4th 225, 301 [" '[t]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad' "].)
Montes's reliance on People v. Stark (1989) 213 Cal.App.3d 107 is unpersuasive. In that case, a school psychologist testified that a child witness, in a sex abuse case, had a learning disability affecting "his ability to sequence events and put events in chronological order." (Id. at p. 112.) The prosecution offered the evidence because the witness's physical appearance could have caused the jury to exaggerate his learning disability (id. at p. 113, fn. 3), and the psychologist's expert testimony was helpful to "ward off potential preconceived notions about retardation based on physical appearance in the minds of lay jurors" (id. at p. 114, fn. 4). The reviewing court rejected the defendant's challenge to admission of the evidence. (Id. at p. 113.) It reasoned: "[E]xpert testimony explaining [the witness's] cognitive development as his ability to understand questions and communicate 'falls well within the broad statutory description of "any matter that has any tendency in reason" to bear on the credibility of a witness. (. . . § 780.)' " (Id. at p. 114.) Admission of the evidence did not constitute an abuse of discretion under section 352 because the testimony was probative, extremely brief, and did not confuse or mislead the jury. (Id. at p. 115.)
Here, unlike in People v. Stark, there is no suggestion that evidence from a lay witness regarding intellectual disability was necessary to rebut preconceived notions the jury might have from Doe's appearance. (Stark, supra, 213 Cal.App.3d at p. 113, fn. 3.) To the contrary, the trial court's repeated statement that this was a "discovery matter" appears to us to refer to the absence of expert testimony to explain to the jury how any intellectual or developmental disability suffered by Doe would affect her powers of perception, memory, or communication. Thus, the probative value of Maria's nonexpert testimony alone would have been minimal.
The proffered evidence was also cumulative. Montes's trial counsel was able to establish, from cross-examination of Maria, that Doe had repeated first grade. From defense counsel's cross-examination of Doe herself, it was clear to the trial court that "Doe is . . . delayed developmentally." The court explained, "[Doe] does not speak or act like any seven-year-old that I have ever encountered. She seems to act more at the three- or four-year-old level." Montes presents no persuasive reason the jury would have a dissimilar impression. Thus, the trial court acted reasonably in determining any minimal probative value would be outweighed by delay and its potential for confusing the jury. The trial court did not abuse its discretion or violate Montes's confrontation rights.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.