Filed 9/28/26 P. v. Gaffney CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C101485
Plaintiff and Respondent,
(Super. Ct. No. 19FE022502)
v.
AMARI GAFFNEY,
Defendant and Appellant.
After a jury found defendant Amari Gaffney guilty of rape, the trial court
sentenced defendant to eight years imprisonment. Defendant now argues the court erred
in excluding certain impeachment evidence against a witness. He also contends the
prosecutor committed misconduct by vouching for witnesses during closing argument
and, to the extent this claim is forfeited, asserts that his trial counsel provided ineffective
assistance of counsel by failing to object. Lastly, defendant argues cumulative error
compels reversal.
We conclude the prosecutorial misconduct claim is forfeited and the evidentiary
claim and ineffective assistance of counsel claim fail on the merits, and thus affirm the
judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The People charged defendant with the rape of Kaitlin Doe (Pen. Code, § 261,
subd. (a)(3); count one); the assault of Alicia Doe with the intent to commit oral
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copulation and rape (id., § 220; count two); unlawfully committing an act of oral
copulation on Alisia Doe (id., § 287, subd. (f)(1); count three); and the assault of Alisia
Doe during the commission of a residential burglary with the intent to commit oral
copulation and rape (id., § 220, subd. (b); count four). The People alleged several
aggravating circumstances.
At trial, the People introduced evidence of uncharged sexual assault conduct by
defendant against Lisa Doe and Ruby Doe. Ruby testified that she had a romantic
relationship with defendant from 2019 to 2023. In March or April 2019, she went to the
Flame Club with defendant. Ruby ordered herself a vodka tonic before defendant
arrived. After he arrived, defendant ordered Ruby a second drink called “The Amari,”
which was named after defendant. Ruby testified that she could “handle” her alcohol;
that she did not drink to the point of being drunk or losing her abilities; and that she could
manage one or two drinks comfortably. Despite this, after having two drinks, she was
“getting dizzy, weak, [and] lightheaded.” Defendant walked Ruby back to her truck and
they sat in the back seat. Defendant started kissing Ruby and leaning on top of her.
Ruby told defendant no and she tried to push him away. Ruby testified, “[e]verything
happened so fast. ... My pants and underwear are off and he’s penetrated already inside
me. He finishes and I’m crying.” Ruby did not feel, based on her level of intoxication,
she could have consented to sex at that time.
Ruby testified that she “somehow ... still entered into a relationship” with
defendant. She said that during their relationship, there was consensual sex but also
instances of nonconsensual sexual acts. Their relationship ended when defendant got
“caught up in his lies” around February 2023. Defendant told Ruby he was not involved
with another woman named Alice Y. but Ruby ultimately found out defendant and Alice
were living together, physically together, and in a relationship.
On cross-examination, Ruby testified that she sent Alice videos of defendant at
Ruby’s house. Ruby denied that: (1) she sent these videos to show Alice that defendant
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was still interested in her; and (2) she wanted Alice to break up with defendant so she
could have defendant for herself.
Defense counsel asked Ruby about a video text message she sent to defendant in
January 2023. Ruby said she was not angry in the message but just tired. Defense
counsel requested that the video be played for the jury. The court called a recess and the
jury was excused. The parties agreed the video could be shown so the jury could
determine whether Ruby was angry in the video. Defense counsel said he had “other
videos that I want to show to show her bias” toward defendant. The court indicated it
would consider that issue later.
The video was played for the jury. According to a transcript, Ruby said the
following in the video message to defendant: “You’re fucking stupid Amari. You’re
really allowing your past movements to contaminate you. Does it hurt you that much to
fucking know that you might actually have a fucking female who’s giving you a blank
slate opportunity to fucking love you? But you wanna fucking sit there and make
accusations towards me? Just fucking know I’m not that fucking female Amari. Don’t
get drunk, call me and make fucking stupid comments towards me that are not true
because that is how you move or your past relationships move. I’m not that bitch. Does
it hurt you that much to know that you fucking love me? That you wanna fucking be shit
with me in three years that you wanna wake up next to me? But you can’t. Why? Let
me call you out on your bullshit. Because you’re still with her, you’re still with Alice.
Does it hurt you that much? Just fucking know you love me but you can’t be with me?
Because you’re choosing not to be with me, fuckin’ free me and just say you’re with her
and then we’re not together. Stop fucking leading me on.”
Ruby testified that when she had a conversation with an investigator in 2021, she
told the investigator there was not an instance in which she would consider having been
raped by defendant. But later in March 2023, after she had broken up with defendant,
Ruby told the investigator that there were occasions where defendant had forced himself
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on her. Ruby also testified that she had texted with an ex-girlfriend of defendant’s named
Shawna. Shawna eventually told Ruby not to reach out to her.
Ruby denied that she still loved defendant and that she made up the allegations
against defendant because she was angry at him for being with Alice. Ruby admitted she
never told the police about any incident of nonconsensual sex with defendant and that she
did not text defendant about them. She also admitted to sending defendant videos saying
“I miss you” and “I love you,” and that in some of the videos she was angry at defendant.
During a recess, defense counsel sought to admit other videos of Ruby to show she
was biased against defendant and had a motive to lie. The trial court asked, “Hasn’t that
already been shown through her testimony, as well as the one video that was played”?
Defense counsel responded, “Not to the degree it needs to.” The court said that, in the
video shown to the jury, “just the pure number of references to the F-word indicate that
this woman is angry.” The court explained the remaining videos were “clearly hearsay,
they’re duplicative, and you have more than sufficient evidence.” The court continued:
“You’ve already established through her testimony that she’s angry. You also played a
recording that demonstrates more effectively than the duplicative nature of the other
recordings that she’s angry with him during the relevant time frame.” The People
responded with an “[Evidence Code section] 352 cumulative objection.” (Statutory
section citations that follow are found in the Evidence Code unless otherwise stated.)
The prosecution explained: “Ruby has testified that she was -- she gave a statement on
March 25th of 2023. And it has been established both through my direct examination and
through extensive cross-examination that in the months leading up to that, January and
February, she has said numerous times that she was angry with Mr. Gaffney because,
based on her perception, he was cheating on her with someone named Alice.”
The trial court decided that “under [section] 352, that the statements that you seek
to offer are cumulative.” The court explained: “I think the record clearly establishes that
this witness, Ruby, was upset with Mr. Gaffney during the relevant time frame in early
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2023, around the time that she reported to the officers. The evidence shows that she was
hot and cold on him. [¶] And there was so much evidence relevant to Alice, and who
Alice was, and the communications with Alice. Alice being, what might be argued, is a
rival for the affections of Mr. Gaffney, thereby establishing some motive for her to testify
in the manner in which she testified.”
Alice also testified. She said she told Ruby to stop texting her and that she had to
block Ruby several times. There was a time when Alice had blocked Ruby and Ruby
contacted Alice from a different phone number. Alice said the messages had “a harassing
tone” and that she felt threatened by Ruby. In October 2020, Ruby went to Alice’s home,
banged on the door, and tried to open it. Alice considered getting a restraining order
against Ruby.
Chana W. testified she was defendant’s friend and that she had been intimate with
him. Chana had also been in contact with Ruby. Chana described Ruby’s messages as
“harassive.” Chana also told Ruby to stop contacting her.
Defendant testified in his defense. As relevant here, he testified as follows
regarding his relationship with Ruby:
“Q Has she ever threatened you?
“A Yes, she has.
“Q What has she threatened you with?
“[Prosecutor]: Objection, Your Honor. It’s 1101(a) and improper character and
irrelevant.
“THE COURT: Sustained.
[¶] . . . [¶]
“Q Did she harass you?
“A Yes, she did.
“[Prosecutor]: Same objection.
“THE COURT: Sustained. Response will be stricken.”
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In summation, defense counsel said the following regarding the uncharged
offenses presented to the jury: “[Ruby] we know is a liar. She’s a liar. She clearly has a
motiv[e] to lie. We were able to show that. Unfortunately, we weren’t so fortunate with
the case 35 years ago [involving Lisa Doe]. That was a little more difficult. We didn’t
have the text messages and the videos to impeach her with from 1991, but I would say
this: They didn’t prove what happened to [Ruby]. It’s a reason it’s not charged. [Ruby]
was lying and she had a motiv[e]. Lisa, on the other hand, was from 1991.”
In rebuttal, the prosecutor responded to this point: “I want to speak just a moment
to this. [Defense counsel] spoke of Lisa Doe’s case and Rudy [sic] Doe’s case and he
said to you, there’s a reason they were not filed. ... He wants you to believe that just
because Lisa and Rudy [sic] are not charged victims in this proceeding, that that
somehow means and you should conclude that I don’t believe her -- them, that my office
doesn’t believe them, and that the police didn’t believe them because their claims are
spurious and unfounded. That is not true. They would not be witnesses in this case if
that were not true. Obviously we believe these women are telling the truth which is why
we called them to speak their truth.” Defense counsel did not object.
The jury found defendant guilty of count one and found true two aggravating
circumstances. The jury could not reach consensus on the remaining counts and the trial
court declared a mistrial on those counts. The court sentenced defendant to the upper
term of eight years.
Defendant timely appealed.
DISCUSSION
Defendant first argues the trial court erred by sustaining the prosecutor’s
objections when defendant was asked, regarding Ruby, “What has she threatened you
with?” and “Did she harass you?” In defendant’s view, this evidence was relevant to
establish Ruby’s bias against defendant and her motive to fabricate sexual assault
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allegations. Defendant contends exclusion of this evidence violated California law and
his federal constitutional rights by depriving him of the opportunity to present a complete
defense.
Initially, the parties dispute whether this claim is preserved for appeal. The People
point out that defendant did not explain why the evidence was admissible, did not object
after the trial court had ruled against defendant, and did not make an offer of proof as to
the excluded testimony. Section 354 provides that a “verdict or finding shall not be set
aside ... by reason of the erroneous exclusion of evidence unless,” among other things,
“[t]he 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.” (Italics
added.) Defendant submits that the substance, purpose, and relevance of the excluded
testimony was apparent given the context of the trial, the prior evidentiary issues
considered by the court, and the questions asked. We agree. Given this, the court’s
adverse ruling excluding the evidence was sufficient to preserve the claim for appeal.
Turning to the merits, the prosecutor objected to the questions at issue as
“improper character [evidence] and irrelevant.” The People now argue “the court could
have properly sustained the prosecutor’s objections under Evidence Code section 352”
because “[f]urther impeachment would have been cumulative and confused the issues
which the court already indicated in its prior ruling excluding the other videos” Ruby had
sent defendant. Defendant insists the evidence would not have been cumulative because
it would have shown that Ruby personally targeted defendant with threats and
harassment. The People have the better argument.
Section 352 provides: “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “[S]ection 352 allows the
trial court to exclude even relevant evidence if its probative value is outweighed by ... the
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risk that admission will necessitate undue consumption of time. Cumulative evidence is
excludable on this basis.” (People v. Burgener (1986) 41 Cal.3d 505, 525, disapproved
of on another ground by People v. Reyes (1998) 19 Cal.4th 743, 753-756.) “It is within
the discretion of the trial court to exclude impeachment evidence as cumulative when
there is already evidence of the witness’s lack of credibility.” (Ibid.)
We review a challenge to the exclusion of evidence for abuse of discretion.
(People v. Foss (2007) 155 Cal.App.4th 113, 124.) We may uphold the trial court’s
ruling on any legally sufficient ground. (See People v. Geier (2007) 41 Cal.4th 555, 582
[“Although the trial court did not expressly base its ruling on Evidence Code section 352,
we review the ruling, not the court’s reasoning and, if the ruling was correct on any
ground, we affirm”].)
Here, the trial court acted well within its discretion to exclude the evidence at
issue. Defendant submits that his testimony on whether he believed Ruby was harassing
him and how Ruby had threatened him was relevant to establish that Ruby was biased
against defendant and therefore had a motive to lie. But ample evidence of Ruby’s bias
against defendant had already been introduced, including: (1) the video Ruby sent
defendant in which she angrily cursed at him; (2) the evidence that defendant was
cheating on Ruby with Alice; and (3) defendant’s testimony that Ruby had threatened
him. Ruby’s credibility was further undermined by: (1) the fact that Ruby only reported
the uncharged conduct after a period where she was angry with defendant; (2) Ruby’s
repeated and unwanted contact with other women who defendant had been involved with;
(3) Alice and Chana’s testimony that Ruby was harassing them; and (4) Alice’s testimony
that she felt threatened by Ruby and that Alice considered getting a restraining order
against her. Any testimony by defendant as to whether he considered Ruby’s conduct
toward him to be harassing was cumulative given the evidence of Ruby’s conduct to
defendant and others. Similarly, given all the evidence of Ruby’s bias against defendant,
the probative value of testimony concerning how Ruby had threatened defendant was
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marginal, and plainly outweighed by the cumulative nature of the evidence on this point.
(Cf. 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. The statute empowers
courts to prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues’ ”].)
We reject defendant’s claim of constitutional error stemming from this evidence’s
exclusion, as it “attempt[s] to inflate garden-variety evidentiary questions into
constitutional ones.” (People v. Boyette (2002) 29 Cal.4th 381, 427.) As a general
matter, the application of ordinary rules of evidence, including section 352, does not
infringe on the right to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834.)
“Although completely excluding evidence of an accused’s defense theoretically could
rise to this level, excluding defense evidence on a minor or subsidiary point does not
impair an accused’s due process right to present a defense.” (People v. Fudge (1994)
7 Cal.4th 1075, 1103.) Indeed, neither the right to a fair trial nor the right to present a
defense confer on defendant “ ‘a constitutional right to present all relevant evidence in his
favor, no matter how limited in probative value such evidence will be so as to preclude
the trial court from using Evidence Code section 352.’ ” (People v. Babbitt (1988)
45 Cal.3d 660, 684.) Here, the trial court did not completely preclude any defense, as
defendant was permitted to present evidence that Ruby Doe was biased and, in fact,
expressly argued to the jury that Ruby had a motive to lie and was lying.
Next, defendant contends that the prosecutor committed misconduct by
impermissibly vouching for Lisa Doe and Ruby Doe during summation. He
acknowledges that this claim may be forfeited because his attorney did not object to the
prosecutor’s statements and did not request the jury be admonished to disregard the
statements. Nonetheless, he asks that we exercise our discretion to reach the merits of the
issue. In the alternative, defendant argues his trial counsel’s failure to object constitutes
ineffective assistance of counsel.
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Defendant has forfeited this claim by failing to object below. (See People v.
Seumanu (2015) 61 Cal.4th 1293, 1328 [“It is well settled that making a timely and
specific objection at trial, and requesting the jury be admonished ... is a necessary
prerequisite to preserve a claim of prosecutorial misconduct for appeal”].) We decline to
exercise our discretion to consider the claim’s merits.
As to the alternative claim, to establish a claim for ineffective assistance of
counsel, defendant must show his counsel’s performance was deficient and that he
suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 181, 198.) We presume
that “counsel’s actions fall within the broad range of reasonableness, and [we] afford
‘great deference to counsel’s tactical decisions.’ ” (Ibid.) If the record on appeal sheds
no light on why trial counsel acted or failed to act in the manner challenged, an appellate
claim of ineffective assistance of counsel must be rejected unless counsel was asked for
an explanation and failed to provide one or there could be no satisfactory explanation.
(People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) A defendant thus bears a difficult
burden when asserting an ineffective assistance claim on direct appeal. (Mickel, supra, at
p. 198.) Moreover, “ ‘[t]he decision facing counsel in the midst of trial over whether to
object to comments made by the prosecutor in closing argument is a highly tactical
one ....’ [citation], and ‘a mere failure to object to ... argument seldom establishes
counsel’s incompetence.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 675.)
The record here offers no insight as to why defense counsel did not object to the
prosecutor’s statements. But even assuming an objection would have had merit, we
perceive reasonable tactical grounds why defense counsel might have declined to object.
The challenged comments were a small part of a lengthy rebuttal argument that spanned
35 pages in the reporter’s transcript. Given this, it is entirely possible trial counsel
wanted to avoid drawing the jury’s attention to the prosecutor’s statements by objecting.
(See People v. Huggins (2006) 38 Cal.4th 175, 206 [even where an objection would have
been successful, competent counsel “could have preferred not to draw the jurors’
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attention to particular comments by the prosecutor by objecting to them”]; People v.
Ramirez (2019) 40 Cal.App.5th 305, 311 [finding no deficient performance for failure to
object to prosecutor’s comments in closing argument because “the jury may have looked
bored, and the stimulus of an objection may have awakened the jurors’ interest in a
counterproductive way”]; cf. People v. Aguirre (2025) 18 Cal.5th 629, 707 [“ ‘From a
strategic perspective, ... many trial lawyers refrain from objecting during closing
argument to all but the most egregious misstatements by opposing counsel on the theory
that the jury may construe their objections to be a sign of desperation or hyper-
technicality’ ”].) Accordingly, defendant has not established that his counsel’s
performance was deficient and we reject his claim of ineffective assistance of counsel.
Lastly, defendant contends that the accumulation of the errors he raises on appeal
undermined his right to a fair trial. Having found no errors, this claim is necessarily
without merit. (See People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
DISPOSITION
The judgment is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
FEINBERG, J.
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