Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA067500. James R. Brandlin, Judge.
ORIGINAL PROCEEDING Petition for writ of habeas corpus. James R. Brandlin, Judge.
Mark S. Given, under appointment by the Court of Appeal, for Defendant and Appellant.
Antoine Demetrius Reed, in pro. per., for Petitioner.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
A jury convicted Antoine Demetrius Reed of one count of rape, one count of oral copulation with a person under age 16 and two counts of lewd conduct with a person age 14 or 15. Because the trial court erroneously refused to allow Reed to call the victim’s mother as a witness we conditionally reversed the judgment and remanded the cause with directions to give Reed an opportunity to present “all relevant testimony mother has to offer” and thereafter to determine whether her testimony warrants a new trial. (People v. Reed (Mar. 4, 2009, B206326) [nonpub. opn.] (Reed I).)
After hearing the mother’s testimony, the court denied Reed’s motion for a new trial and reinstated his three strikes sentence of 110 years to life. Reed filed a timely appeal from the reinstated judgment. He also filed a petition for habeas corpus alleging evidentiary errors by the trial court, ineffective assistance of trial and appellate counsel and misconduct by the prosecutor. We ordered the habeas petition considered along with the appeal.
We reverse the judgment and remand the matter to the trial court once again because the court prevented Reed from seeking relevant evidence from the victim’s mother on relevant topics. Given this disposition we need not reach the issues raised in the habeas petition and dismiss the petition without prejudice as moot.
BACKGROUND
The prosecution’s evidence showed that Reed approached 15-year-old S. between 7:00 and 8:00 in the morning as she waited at a bus stop to go to school. Reed told S. that he was a “modeling agent” and asked her to walk over to his car to look at photographs and his camera. S. agreed. At the car, Reed showed S. a document that he said was his “modeling agent” license, his camera and an album of photographs of young women. Reed told S. that he would pay her $200 if she would go with him to model for some photographs. Believing that she was going to earn $200 for modeling, S. agreed to go with Reed. During the drive to the Botanic Garden in Palos Verdes, S. told Reed that she was 15 years old and Reed told her that he had daughters close to her age.
In a secluded area of the Botanic Garden, Reed raped S., placed his penis in her mouth and forced her to masturbate him. Afterward Reed dropped S. off at her high school. As he drove away, S. wrote down the license number of his car.
Initially S. told police that Reed had “picked her up” and “thrown her into the car.” Later she told police that Reed had threatened to “use a knife on her” if she did not get into his car. Still later, S. admitted to police that these versions were untrue and at trial she testified to the version of events described above. On cross-examination she admitted that she had initially lied to the police.
Reed, appearing in pro per, testified in his own defense. He stated that S. approached him and expressed interest in being a model. She agreed to go to the Botanic Garden with him to pose for pictures in return for $20 and a copy of the prints to use in her modeling portfolio. S. told Reed that she was 19 years old and he believed her. At the Garden, Reed photographed S. as agreed. After the photo session ended, they argued over the amount Reed had agreed to pay S. for her modeling; Reed claiming it was $20 and S. claiming it was $200. In the course of their argument Reed remarked that S. would “have to do a little bit more than that for $200” and S. replied “let it do what it do.” Taking that reply as a consent to engage in sex, and believing S. to be 19, Reed found a “nice spot, ” engaged in vaginal intercourse with her and ejaculated on her face and neck. Reed denied forcing S. to touch his penis and denied putting his penis in her mouth or putting his mouth on her breast.
Reed proposed calling S.’s mother as a defense witness to testify whether the police had “manipulate[ed]” S.’s testimony. Although he conceded that he did not know what the mother would say and was not able to make an offer of proof of her testimony because she had refused to talk to his investigator, he did explain: “She had a[n] inclination to not allow detective Montenegro to talk to her daughter because she felt like they were manipulating her daughter.” The court, however, refused Reed’s request to call the mother as a witness stating “this isn’t the time for depositions” and that Reed’s “hope that she’s going to be able to provide relevant information” was not enough of a showing to allow her testimony.
We held that the court abused its discretion in excluding the mother’s testimony because the record supported the possibility that mother could give material testimony and the court’s requirement that Reed demonstrate how the mother would testify “imposed an insurmountable burden on the defense.” Because we could not determine whether the exclusion of the mother’s testimony was prejudicial we conditionally reversed the judgment and remanded the case to the trial court to hear the mother’s testimony and determine whether it required granting Reed a new trial. We specifically directed the trial court not to limit the mother’s testimony to the “manipulation” issue but to “hear all relevant testimony mother has to offer.” We further directed that after the court heard all of the mother’s relevant testimony it “shall evaluate the materiality of this new evidence in light of the whole record and determine whether to grant Reed a new trial.”
Upon remand, the court held a hearing at which S.’s mother was questioned by Reed, again appearing in pro per, and the prosecutor.
Mother testified that she received telephone calls from her mother (S.’s grandmother) and the police informing her that S. had been raped and was at the police station. When she arrived at the police station she saw S. and hugged her. The police did not allow her to be present when they interviewed S. Mother stated that she was angry at being excluded from the interview and came away with the impression that female officers at the police station had been rough, mean and rude toward S. That was why, she explained, she was initially reluctant to allow detective Montenegro to come to the house to speak further with S. Once she realized that Montenegro was not one of the officers who had “disrespected” her daughter she allowed Montenegro to come and interview S. Mother testified that in the days following the alleged rape, S. told her, in bits and pieces, a version of what happened that was fairly close to her testimony at trial.
Mother further testified that she did not believe S. was a liar, S. had never been in trouble for ditching classes, she was a “model student” who received “straight A’s” and that S. had never had any problems in school.
Following the hearing the court denied Reed’s motion for a new trial and reinstated the judgment.
DISCUSSION
In this case, if a rape occurred it occurred in private and there were only two persons who witnessed the act, S. and Reed. Accordingly, S.’s credibility is extremely important to the prosecution and the defense. Contrary to our instructions, however, the court did not allow Reed to present “all relevant testimony mother has to offer” on the issue of her daughter’s credibility. The court erred in sustaining relevancy objections to Reed’s questions seeking evidence that S. was afraid of her mother.
A. Questions About S.’s Fear of Mother’s Discipline
At the hearing, Reed asked S.’s mother: “In your opinion, [do] you consider yourself a strict mother?” The prosecutor objected on the ground of relevance and the court sustained the objection.
In his offer of proof, Reed stated that S. had changed her stories in the past and that she had told Detective Montenegro that she made up the kidnapping story, that Reed had picked her up and thrown her into his car, “‘because I didn’t want to get in trouble at home.’” Therefore, Reed explained, he wanted to go into the discipline that S. could expect at home “that would cause S. to be afraid” to admit that she had engaged in sex with Reed for money. The prosecutor did not dispute Reed’s account of S.’s testimony about being afraid of getting into trouble at home but argued there was no evidence at trial that S. testified the way she did out of fear of being punished at home or that she had to say she was kidnapped or her mother would punish her. The court ruled, “I don’t think it’s relevant” what punishment, if any, S. would receive at home if she admitted to trading sex for money. Furthermore, the court stated, undue consumption of time and confusion of the issues “far outweighs any probative value.”
The court erred in excluding the evidence.
On the issue of relevancy, People v. Caldwell (1921) 55 Cal.App. 280, 293-294 is directly on point. In Caldwell, the defendant attempted to show that the prosecutrix, a minor, claimed he raped her out of fear of her parents’ reaction if she admitted their sex was consensual. Defendant asked the prosecutrix on cross-examination whether she was afraid of her father the night of the alleged rape, whether she would have kept silent about the event “had it not been for your fear of your father and mother, ” and whether her mother “abused” her when she arrived home. (Id. at p. 293.) The prosecutor objected to these questions on the grounds they were “incompetent, irrelevant and immaterial.” In response, defense counsel stated: “‘We offer to prove that this girl is testifying under the influence of her father and mother and has all the way through the proceedings, that she is under the duress of her adopted father and mother, and we make the offer to prove it by cross-examination as well as other witnesses.’” (Ibid.) The trial court rejected the offer of proof and sustained the objections. (Ibid.)
In reversing Caldwell’s rape conviction, the Court of Appeal held that the prosecutor’s objections to questions about the prosecutrix’s fear of her parents were “not tenable.” (People v. Caldwell, supra, 55 Cal.App. at p. 293.) On the contrary, the court stated, “[i]t is certainly most important in a rape case that proof be made, if such be the fact, that the prosecutrix is influenced by her fear of others to testify against the defendant.” (Id. at p. 294.) This is particularly true in the case of a minor, such as S., because a minor “‘may be under great parental or social pressure to testify and to lay the blame for certain conduct or a certain condition on the accused.’” (In re Miguel L. (1982) 32 Cal.3d 100, 109.)
The trial established that S. lied to the police more than once about the events in question. Reed was entitled to show, if he could, that S.’s motive to lie arose out of her fear of her mother’s reaction if she found out that S. had sex for money.
Furthermore the court abused its discretion in excluding the mother’s testimony on the basis of undue consumption of time and confusion of the issues. As we explained in Reed I: “A trial court has broad discretion in excluding evidence under Evidence Code section 352. Nevertheless, in exercising discretion whether to admit or exclude evidence proffered by a criminal defendant this Division has cautioned that ‘discretion should favor the defendant in cases of doubt because in comparing prejudicial impact with probative value the balance “is particularly delicate and critical where what is at stake is a criminal defendant’s liberty.”’ (People v. De Larco (1983) 142 Cal.App.3d 294, 306....)” (ReedI, B206326, p. 18, fn. omitted.) Mother’s testimony about the scope and degree of her punishment of her children including S. and examples of punishment she has meted out in the past would not consume an undue amount of time. And, as we discussed above, evidence of a minor’s fear of her parents, if it exists, does not confuse the issues but is “most important in a rape case.” (People v. Caldwell, supra, 55 Cal.App. at p. 294.)
B. Questions About S.’s Need For Money for Her Cell Phone and Food and Whether She Would Lie About Her School Attendance
The evidence was undisputed that S. owns a cell phone. To show that S. had a need for money Reed asked S.’s mother “how would [S.] get money to pay for [her cell phone]?” and “[d]id you ever give your daughter money to pay for [her cell phone]?” The court sustained relevancy objections to both questions.
Reed argues that the questions about how S. paid her cell phone bill sought relevant testimony because if Mother responded that she did not give S. the money and didn’t know where S. got it such evidence would suggest S. had a motive to agree to have sex with Reed for money and would support his testimony that after having sex they argued about how much he was going to pay her.
Reed asked S.’s mother whether she fed S. every day. The prosecutor objected and the court sustained the objection. Later Reed made an offer of proof to show the relevancy of this question. He explained that one of S.’s teachers had testified at trial that “he would give S. money in order to eat because she was having [a] hard time at home.” Reed argued that if mother testified that she fed S. every day that evidence would not only undermine S.’s credibility but “a jury could conclude that S. has a habit of trying to trick adults out of their money” and possibly tried to trick me out of my money. The trial court affirmed its original ruling on the grounds that the mother’s answer to the question would not constitute relevant evidence and, even if it did, it would be unduly time consuming and confuse the issues.
The court allowed Reed to question S.’s mother about whether S. had “any issues with truancy” or got into trouble for “ditching classes” prior to the alleged rape. Mother answered, “No.” But when Reed asked mother whether she thought S. would lie to cover up ditching school the court sustained the prosecutor’s objection that the question called for speculation. Although the parties have not briefed the issue it appears the testimony Reed sought would have been admissible under Evidence Code section 1100 because the answer would have been relevant to S.’s credibility.
Evidence Code section 1100 states: “Except as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion...) is admissible to prove a person’s character or a trait of his character.”
Given the latitude in cross-examination to which a defendant is entitled, the court should allow Reed to question mother on all three topics.
C. Prejudice And Remedy
Once again we are unable to affirm or reverse Reed’s conviction because we do not know, and have no way of determining from the record, what S.’s mother would have testified had the court permitted “all relevant testimony mother has to offer” as we ordered in Reed I. The appropriate disposition in this situation is to remand the cause to the trial court for resolution of the evidentiary questions and, depending on that resolution, a reinstatement of the judgment or an order for a new trial. (People v. Minor (1980) 104 Cal.App.3d 194, 199 (cited with approval in People v. Moore (2006) 39 Cal.4th 168, 177).)
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to hold a de novo hearing at which Reed may question mother on any relevant issue regardless of whether the subject was covered at the previous hearing. After hearing mother’s testimony, the court shall evaluate the materiality of this new evidence in light of the whole record and determine whether to grant Reed a new trial. If the court determines not to order a new trial then the court shall reinstate the judgment. Reed is entitled to be present at this hearing.
The petition is dismissed as moot.
We concur: MALLANO, P. J. JOHNSON, J.