P. v. Olmedo

Filed 9/13/07 P. v. Olmedo CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Ralph Olmedo (appellant) was convicted, following a jury trial, of two counts of continuous sexual abuse of a child. On appeal, he contends (1) the trial court erred in admitting evidence of prior uncharged sexual offenses; (2) the trial court erred when it refused to allow a defense expert to testify; (3) the trial court erred when it refused to allow defense counsel to ask certain questions of a defense witness; and (4) the prosecutors misconduct during closing argument requires reversal of appellants conviction.

Appellant also has filed a petition for writ of habeas corpus, which we have consolidated with the direct appeal, alleging his counsel was ineffective for (1) failing to investigate information about appellants family providing the victims grandmother with money, at her request; (2) failing to timely object to and request an admonition regarding instances of prosecutorial misconduct during argument to the jury; and (3) failing to retain an expert in a timely manner and failing to adequately prepare the expert for and question her at an Evidence Code section 402 hearing.

We shall affirm the judgment and shall deny the petition for writ of habeas corpus.

PROCEDURAL BACKGROUND

Appellant was charged by information with two counts of continuous sexual abuse of a child (Pen. Code,  228.5).

On November 10, 2005, a jury found appellant guilty as charged.

On December 16, 2005, the trial court sentenced appellant to the midterm of 12 years on count one, plus one third the midterm (four years) consecutive on count two, for a total of 16 years in state prison.

On January 4, 2006, appellant filed a notice of appeal.

FACTUAL BACKGROUND

Prosecution Case

J.D., who was 10 years old at the time of trial, testified that she lived with her mother and siblings, as well as sometimes with her grandmother Carmen. She and her younger sister R. would sometimes go with Carmen and her husband to the house of J.s Uncle Ralphie (her great uncle by marriage), identified by her at trial as appellant, and his wife Esperanza. They sometimes went on weekdays and sometimes on weekends. The children played or watched television there.

Appellant sometimes touched her when she was at his house; it happened sometimes in the garage and sometimes in the second bedroom. Once when J. was sitting by herself in a rolling chair in the garage watching television, appellant came in and sat in another rolling chair. He pulled her chair toward him and he put his fingers under her clothes and touched the outside of her vagina for a little bit. Appellant did not say anything and J. did not say anything because she was scared.

Appellant touched J. in the garage other times as well. He also touched her in the second bedroom. Once, when she was sitting on the bed watching television, appellant came in and sat down on the bed next to her. He then touched her vagina area (where I go pee) with his fingers, under her clothes. That was not the only time he touched her vagina in the second bedroom. Appellant also sometimes touched J.s breasts with his fingers, under her clothes. When he touched her vagina, he would move his fingers.[1] She could not remember other specific times when he touched her in the bedroom or garage. Appellant never said anything while he was touching J. J. never told her mother or grandmother about what appellant did because she was scared; she thought she would get in trouble. It was J.s sister, R., who eventually said something to their mother.[2]

R.D., who was eight years old at the time of trial, testified that she used to visit her Uncle Ralphies[3] house with her Grandma Carmen almost every weekend. Appellant touched her chi-chis, her colita, and her butt during visits. He did this at times in the garage, the second bedroom, and the living room.

When she was in the garage, she would watch television or sweep sawdust off the floor. Once, when she was in the garage sweeping, appellant came in and hugged her from behind and quickly touched her vagina (colita) with his hands, outside her clothes. That was not the only time he touched her vagina in the garage. Once when R. was alone in the second bedroom watching a movie and she got up to change the channel, appellant came in and hugged her from the front, touching her quickly on the butt with his hands, over her clothes. Another time, when R. was watching a movie in the living room, appellant came in and hugged her from the back. He touched her breasts (chi-chis).

Appellant never said anything when he touched R. He touched her every time she was at his house. R. did not tell her mother or grandmother about the touching when it first started happening because she was scared.

On cross-examination, R. testified that she first told her mother about appellant and his touching when she, her mother, and J. were at home watching television and a commercial about belly dancers came on. Her mother said, I do not like that, and R. said, Like Tio Ralphie, and her mother said, What? R. then told her mother where appellant had touched her, saying, on our chi-chis, on our colita and on our butt.[4] J. was sitting next to their mother at the time R. spoke. R. believed the touching started when she was five years old. Appellant touched her more than 30 times altogether, always over her clothing and always while giving her a hug.

Bertha Nevarez testified that she worked at the Calico Center, a child abuse listening coordination center in San Leandro. Prior to July 2004, she had interviewed over a thousand children who had allegedly been victims of physical or sexual abuse. She also had received ongoing training in child forensic interviewing, including suggestibility. On July 13, 2004, she interviewed J. at the Calico Center; the interview was videotaped and transcribed. J. told Nevarez that appellant touched her breasts, her butt, and her behind-butt. On a drawing of a girl, J. circled the girls vagina in describing her butt, and the girls buttocks in describing her behind-butt. J. said that appellant put his fingers inside her butt, i.e., her vagina, although Nevarez acknowledged that J.s words were ambiguous as to exactly what she meant by that.

Amparo Ozuna testified that she had been a forensic child interviewer at the Calico Center for three years and had interviewed well over 300 children prior to July 2004. She had received ongoing training in child forensic interviewing. She also had received various trainings on avoiding suggestibility while interviewing children.[5] On July 13, 2004, she interviewed R. at the Calico Center; the interview was videotaped. On a drawing of a girl, R. circled the girls breasts, which she called chi-chis; she circled the girls vagina, which she called her colita; and she circled the girls buttocks, which she called her butt. R. told Ozuna that appellant had touched her chi-chis, colita, and butt. On cross-examination, Ozuna testified that R. had said that J. told her that appellant had touched her too, and they had an agreement to keep it a secret. R. also said that her mother had told her that Uncle Ralphie was sick in the brain.

Carmen D., who was 45 years old at the time of trial, testified that she had two children, Alberto and Maria Christina (Maria).[6] Carmen came to Oakland from Mexico when she was six years old, along with her brother, Ruben, and her sister, Esperanza, who is 16 years older than Carmen. Her father and another brother, Juan, were already in Oakland. Appellants family had helped Carmens father when he first came to the United States. Two or three months after Carmen arrived in Oakland, Esperanza married appellant, who is some 30 years older than Carmen.

When Carmen was eight or nine years old, appellant began touching her. She occasionally spent the night at appellant and Esperanzas house, and slept in the second bedroom. Appellant would get up early in the morning and bring coffee to Esperanza, and then he would come into the room in which Carmen was sleeping. He started out by patting her leg to wake her up and it slowly progressed to where he started touching her butt, and then tried to kiss her on the lips. He then started touching her breasts and vagina over her underwear. He later started touching her under her clothes, including sticking his hands inside her underwear and touching her vagina. He also put his finger in her vagina. This touching happened while Carmen was between the ages of eight and 14. On several occasions when she was watching television in the living room and the adults were gathered in the kitchen, appellant would come into the living room, sit next to her, and touch her. One time, when she was about 12 years old, appellant came into the living room, forced his knee between her legs, and kissed her. Appellant never said anything when he touched her.

At the age of eight or nine, Carmen told her mother that appellant was touching her. Her mother did not want Carmen to tell Esperanza because she did not want appellant to stop her (Carmen and Esperanzas mother) from visiting Esperanza. Her mother never called the police and Carmen never told Esperanza about the touching because I loved my sister, because I didnt want to hurt her, because I didnt want my family to be pulled away. After the touching stopped, when Carmen was about 14 years old, she put the touching in the back and just moved on and tried to see [appellant] as my sisters husband, as the man that I learned to care about as a father.

After she had her children, Carmen continued to see Esperanza and appellant. She did not think about whether appellant might touch someone else because she wanted to be around her sister; she also did not believe he would do that to her daughter. Starting when her daughter Maria was about six years old and her son Alberto was about eight years old, her children would sometimes spend the night at the home of appellant, who also had two children. Carmens children were close to their cousins; the cousins were her childrens godparents.

Starting at age six, Maria would spend the night at appellants house once or twice a month. When Maria was eight years old, Carmen found out that appellant was touching her. Carmens sister-in-law, Gloria, told her and Maria said it was true. Carmen did not do anything about it because she did not want to be away from her family; she did not want to hurt her sister, who was like a second mother to her; and she did not want her mother not to be able to visit her daughter, Esperanza.[7]

When Maria was near her 14th birthday, someone called from Marias school and asked Carmen to come to the school. Carmen spoke to officers from the Oakland Police Department, who asked whether she knew her daughter was being molested by appellant. She said she knew, and also said she had been molested by appellant as well. Carmen asked Maria not to press charges because I figured if I could forget about it, if I was strong enough to forget about it, she would be able to do the same thing and put it behind her, and we would keep the family together. Carmen and her daughter did not have a relationship after that. However, Carmen was always very close to her two granddaughters, J. and R.

When Carmen and her husband moved to 60th Avenue in Oakland in 2003, J. and R. were living with them part of the time and with their mother, Maria, part of the time. Although she and Maria were not talking to each other, Maria would drop the girls off at her house. The new house was two and one-half blocks from appellants home. Carmen visited her sister, Esperanza, almost every weekend between October 2003 and June 2004, and would always bring J. and R. with her.

Carmen never thought that appellant might touch her granddaughters because he was recuperating from bypass surgery and she thought that, because he had been close to death, he would try to improve the way he had been. Carmen never told her daughter that she was taking the girls to appellants house because she and Maria did not have good communication and because when she had the girls with her, she was responsible for them.

Appellant was at home when Carmen brought the girls there. She would watch movies, talk with her sister, and just be there when she visited, mainly staying in the living room and kitchen. Her granddaughters would sometimes be in the yard, sometimes in the garage, but mostly in the second bedroom because they watched cartoons there. Appellants grandchildren would often be there too, and there were a lot of kids going in and out, never staying in one place.

On June 18, 2004, Carmens son, Alberto, brought J. and R. to Carmens house. Alberto told her to talk to the girls. She first called J. into her bedroom and said Alberto said she had something to say. J. just started crying, and Alberto finally said, Ralph happened. Thats what happened. Carmen hugged J. R. came in and the girls told her what had happened with appellant. Carmen was afraid to tell Maria because they were not on good terms and Carmen did not want to get into a confrontation with her. Alberto convinced Carmen to talk to Maria, and Carmen told her she was sorry and said, [W]hatever you decide to do, Im with you. If you want to speak up, Im with you. She wanted to let her daughter know that, as much as she loved her family or thought she was protecting her family, she had put her granddaughters at risk by trying to pretend this would not happen.

That evening, Carmen went to appellants house, where she had a conversation with him. She was not satisfied with the conversation. The next day, Saturday, Carmen talked to Maria, who said she was definitely going to call the police; she was not going to let appellant get away with it again. The following day, Sunday, appellants son called early in the morning and said appellant wanted Carmen to come over and talk to him. She went to appellants house. He was alone in the living room. Appellant said he did not think he was doing anything wrong, asked if there was any way to take care of this without getting anyone else involved, and asked if $5,000 would help. He offered the money to make it better. She said, how dare he tries [sic] to buy my girls. My girls were not for sale. Their future is not for sale.

Carmen and Maria agreed that Carmen would call the police since the girls had been under her care and were her responsibility, and she did so. The police came to her home on June 23 and took J. and R. outside to their patrol cars to take statements from them.

Maria Christina D., who was 26 years old at the time of trial, testified that she has five children; the two oldest are J. and R. When she was very young, Maria was close to her Aunt Esperanza and her Uncle Ralph, appellant. Growing up, she was close to her cousins, Robert and Sylvia, who are appellants children.

When Maria was five or six years old, appellant began touching her inappropriately in the living room at his house. She stayed overnight at his house regularly and would sleep on the living room couch. She remembered waking up to him touching her very early in the morning before anyone woke up. At first he touched her over her clothes, and later he started touching her breasts and vagina under her clothes. The worst was when he put his fingers inside her vagina. The touchings went on for a total of nine or ten years and happened so many so many times, I cant keep count. Appellant never said anything when he touched her.

In 1993, Maria first told relatives at a family party, including appellants children, that appellant had been molesting her. The family did nothing about it. That same year, when she was in junior high school, she told a school psychologist about the molestation. The school called the police. A police officer came and took a statement from Maria, which she signed. She was asked if she wanted to press charges and she said no, because she did not want to split up the family. After that, she only occasionally saw appellant at family parties. She forgave him.

Marias daughters, J. and R., were very close to their grandmother, Carmen, and would sometimes spend the night at her house on weekends. Between October 2003 and June 2004, Maria was not talking to her mother. Maria did not know her daughters were regularly going over to her Aunt Esperanzas house on weekends.

On June 18, 2004,[8] Maria was at home with her daughters when R. blurted out that Uncle Ralphie touches us here, here and here, while pointing to her chest, vaginal area, and behind area. Maria responded, No, no. Dont tell me that, and J. said, You see, [R.D.]. You werent supposed to say nothing. It was a secret. J. was mad and would not talk about it.[9] Marias brother came in and, after she told him what had happened, he asked her what she wanted to do. She said she was going to call the police. I knew when they first told me. I knew that I was going to put an end to this. Her brother then took the girls to her moms house. Maria called the police that same day, though officers did not come to take a report until later.

Alberto Moran, Carmens son and Marias brother, testified that, before June 2004, he was close to appellants family. After June, he, his mother, and his sister were not close to appellants family. In June 2004, he lived in an apartment in the same building as his sister, Maria. On June 18, 2004, Maria called Alberto into her apartment; she was crying. She asked J. and R. to tell him what had happened. J. did not want to talk, but R. said that her Uncle Ralph had touched her and pointed to her breasts and her vagina. Alberto and his sister talked about what to do and, at some point, it was decided that he would take the girls to his mothers house to tell her, which he did. While they were there, Carmen called J. into her room and asked her what had happened. J. started crying, but did not say anything. When R. came in, she told Carmen what she had told Alberto earlier.

Alberto and his mother, Carmen, went to appellants house later that day. Carmen and appellant went into the garage and Alberto waited in the living room with appellants son, Robert. Alberto told Robert what the girls had said. Robert just shook his head and put his hand over his head. Alberto and his mother eventually left.

Defense Case

Oakland Police Officer Kevin McDonald testified that he interviewed J. in his patrol car on June 23, 2004. He took her statement, at which time she reported that, inter alia, after sliding his four fingers inside me, appellant would take them out and rub my breast more. J. also said she and R. had told their mother about appellants conduct [a] few months ago. On cross-examination, Officer McDonald acknowledged that he had received no special training on interviewing child witnesses. He also acknowledged that J. talked about appellant putting his fingers inside her underwear.

Susana Reyes-Oregon testified that she had lived next door to appellant and his family for 17 years, since she was12 or 13 years old. Between ages 12 and 15, she was regularly at appellants house and was occasionally alone with him. He never touched her inappropriately, nor had she ever seen him touch any other girls inappropriately. She had never known appellant to be dishonest and she had allowed her six-year-old daughter and four-year-old son to be in his presence.

Martha Estella Zamarripa, Susana Reyes-Oregons sister, testified that she had lived next door to appellants family since she was five years old. Zamarripa was at appellants house two to three times a week between the ages of five and 12. Appellant, with whom she was never alone, never touched her in a way that made her uncomfortable. She never saw him touch other young girls in a way that was inappropriate. He was always a nice neighbor and she never knew him to be untruthful.

Karina Sanchez, who was 21 years old at the time of trial, testified that Esperanza is her aunt. She had known appellant all her life and had been alone with him on several occasions between the ages of eight and 15. He never touched her in a way that made her uncomfortable and she never saw him touch any other girls in an inappropriate way. She testified that appellants reputation for honesty and truthfulness is that he is a good and honest man. Sanchez testified that Carmens reputation is that she is flaky. Marias reputation is that she lies.

Sylvia Frates, appellants daughter, who was 37 years old at the time of trial, testified that she is married and has two children, a girl who is seven years old and a boy who is four years old. There is a big age difference between her and Maria and they were not close growing up. Sylvia and her brother, Robert, were godparents to Maria and her brother Alberto. She never heard allegations that her father had touched Maria inappropriately before the present case arose. Growing up, none of her friends ever said appellant made them uncomfortable or had touched them inappropriately. She never saw him act in an inappropriate way toward any of her girlfriends. Sylvia saw Carmen at appellants house every weekend between October 2003 and June 2004, but Sylvia only remembered J. and R. being there two or three times.

Roberto Olmedo, appellants son, who was 37 years old at the time of trial, testified that he had three children, two girls, ages seven and two, and one boy, age 10. Between October 2003 and June 2004, Roberto was renting a house next door to his parents and was at their house frequently. During his teen years, he was close to his cousins Maria and Alberto and hung out with them on a weekly basis at their grandmothers house; he did not recall them ever spending the night at his parents house.

Roberto recalled Maria accusing appellant of molesting her in 1993, but he did not give it any value. She was intoxicated at the time. Robertos children were at appellants house often and appellant never acted inappropriately with them. He learned about the allegations against appellant regarding J. and R. after Carmen came over to talk to appellant; she looked like something was bothering her and, after she left, appellant told him what she was bothered about. Later, at appellants request, Roberto called Carmen and asked her to come over. That conversation got pretty loud, with Carmen being the loudest.

Robert Frates, appellants son-in-law and Sylvia Fratess husband, testified that he had known appellant for 10 years. Between October 2003 and June 2004, he was at appellants house almost daily. He never saw appellant touch a child in an inappropriate way and he had no concerns about leaving his children with appellant. Carmen was at appellants house often, and she frequently had J. and R. with her. He saw them there on a weekly basis, on average. He never saw either girl alone with appellant. It was a small house and there were always a lot of people there. It is difficult for anybody to be alone in appellants house.

Esperanza Olmedo, who was 62 years old at the time of trial, testified that she had been married to appellant for 40 years and had also moved into their home on 62nd Street in Oakland 40 years ago. When Esperanzas younger sister Carmen (who she called Carmelita) was between the ages of five and 14, she never spent the night at Esperanza and appellants house. Carmen only came to the house with their mother and father, and Esperanza was not aware of Carmen ever being alone with appellant because there were always so many people in the house. Carmen never said anything to Esperanza about appellant touching her in an inappropriate manner. She and Carmen were not close after Esperanza married appellant because Carmen got married at a very young age.

As far as Esperanza could recall, her niece, Maria, never spent the night at her and appellants house when Maria was between the ages of five and 15. She never felt particularly close to Maria.

From 2003 through June 2004, there were always lots of children at Esperanzas home. Three of her grandchildren lived with her and the neighbors children came over too. During that time, she did not recall seeing children alone in the house. She never saw her grandnieces, J. and R. , alone in any room with appellant during that time either; there were always other kids with them. Also, the children were supposed to keep the door open in the rooms they were in. There was no door between the kitchen and living room, and it was possible to see inside the second bedroom from one of the chairs at the kitchen table. The house had a garage in the backyard and there also was a big, vicious dog in the backyard. The children were not allowed to go in the backyard without a grownup or unless the dog was tied up or put in its dog run. They were not allowed in the garage without adult supervision.

In the year before June 2004, when Carmens husband was painting Esperanza and appellants house, Carmen came over three or four days a week and also on the weekends to watch movies. Carmen brought J. and R. to the house only two or three times on the weekends. The girls would play outside with the other children or watch cartoons with the older kids in the second bedroom or the living room. Between October 2003 and June 2004, Esperanza never saw J. or R. acting unusually or trying to stay away from appellant.

Appellant testified that he was born in 1929 in Oakland. After he and Esperanza married in 1966, Carmen would come to their house to visit with her family, never alone. She never spent the night at his house. When she was a girl, he never approached her while she was sleeping and touched her and never touched her in the living room of his house. He never heard of Carmen alleging that he had touched her inappropriately before this case started. He often was the earliest one up in the morning at his house and, while everyone else was sleeping, would get up and make coffee. He would then bring coffee to Esperanza to wake her up.

Appellant saw Maria, Esperanzas niece, at family get-togethers when she was a child. He did not recall her spending the night at his house. He never placed his hand under her clothes and rubbed her breasts or vaginal area. He learned that she had made allegations about his touching her in about 1993. The police never came to talk to him about the allegations.

Marias daughters, J. and R. , would come over to his house at times with Carmen between January 2003 and June 2004. He never touched J. on her breasts, vaginal area, or butt, over or under her clothes. He first learned of these allegations when Carmen came to his house on June 18, 2004. He was surprised by the allegations and told her they were not true. A few days later, appellant had his son, Robert, call Carmen and ask her to come over. She came over with her son, Alberto. Appellant offered her money because she was having financial problems and he thought she needed money and was scheming. So he told her he had just requested $5,000 from his 401-k plan. He said: We can take care of the situation. Otherwise, this can go into a very messy, expensive situation. Carmen did not want his money.

Appellant never touched R. in a sexual way. He never touched either J. or R. in a way intended to arouse himself or anybody else. Nor was there any truth to the claims of Maria or Carmen that he touched them inappropriately.

DISCUSSION

I. Admission of Prior Sexual Offense Evidence

Appellant contends the trial court erred in admitting testimony, pursuant to Evidence Code sections 1101 and 1108,[10] regarding prior sexual offenses committed by appellant.

A. Trial Court Background

Before trial began, the prosecutor filed a motion seeking to admit evidence of appellants prior uncharged sexual acts against Carmen and Maria, as propensity evidence pursuant to section 1108 and to prove appellants intent, absence of mistake, or common scheme or plan pursuant to section 1101, subdivision (b). Defense counsel filed an opposition to the motion, arguing that the evidence should be excluded pursuant to sections 352 and 1101, subdivision (a).

At the conclusion of a hearing at which both counsel further argued the issues, the trial court found the prior sexual offense evidence admissible under both sections 1108 and 1101, subdivision (b), with the exception of evidence that appellant had forced both Carmen and Maria to touch his penis and evidence that he attempted to rape Carmen, which were excluded under section 352 as dissimilar from the charged offenses. The court noted that its ruling was based on the Defendants position of trust, familiarity with the parties, access to the parties and the similarities in and the actual touching. All of those areas are areas of similarity.

B. Legal Analysis

We need not decide whether the prior sexual offense evidence was admissible to show intent, absence of mistake, or common scheme or plan under section 1101, subdivision (b), because we conclude that it was properly admitted to show propensity under section 1108.

Section 1108, subdivision (a), provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court found that section 1108, which permits introduction of propensity evidence in cases alleging the commission of sexual offenses, D.s not violate a defendants due process rights. While acknowledging the general rule against admitting such evidence due to its great potential to unduly prejudice the defendant, the court held that, in light of the substantial protections afforded to defendants in all cases to which section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence. (Id. at p. 915.)^[11]

The substantial protections to which the Falsetta court referred consist of the requirement that the court engage in a careful weighing process under section 352.[^[12]] Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] (Falsetta, supra, 21 Cal.4th at pp. 916-917; accord, People v. Harris (1998) 60 Cal.App.4th 727, 737-742.)

The Falsetta court concluded that the trial courts discretion to exclude propensity evidence under section 352 saves section 1108 from defendants due process challenge. . . . This [section 352] determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 D.s not violate the due process clause. [Citation.] (Falsetta, supra, 21 Cal.4th at pp. 917-918.)

Here, appellant first argues that the trial court erred in admitting the prior sexual offense evidence under section 1108 because that section is unconstitutional. However, we find no objection on that ground in the trial court record. Moreover, we are bound by our Supreme Courts finding in Falsetta, supra, 21 Cal.4th 903, that section 1108 is constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also argues that the court should have found the evidence inadmissible pursuant to section 352. We disagree.

Consideration of the factors discussed in Falsetta supports admission of Carmen and Marias testimony. Appellant asserts that the fact that appellant inserted his fingers into Carmen and Marias vaginas and that the touching of Maria began when she was five years old made the prior conduct both more inflammatory than and dissimilar to the charged offenses. First, the prior offenses were not particularly inflammatory compared to the present matter for the very reason that they were quite similar to the charged offenses. The testimony that appellant may have touched Maria when she was five or six is plainly not so different from when he started to touch R.at not quite seven years oldas to be inflammatory. Moreover, while J.s testimony was somewhat ambiguous as to whether appellant actually inserted his fingers into her vagina, his acts of rubbing her breasts and vaginal area without ever saying a word was strikingly similar overall to the uncharged conduct. In addition, while the evidence showed that appellant touched R. over her clothes, both Carmen and Maria testified that appellant started by touching their breasts and vagina over their clothes, and only later started touching them under their clothes.

As respondent summarizes, in noting the similarity of the prior and present offenses, [i]n all instances, appellant was in a position of authority and trust in a close-knit family and he took advantage of that by touching the young, trusting girls on their breasts and vagina while they were in a secluded area of his house. We also note that the court excluded evidence of the dissimilar, and potentially inflammatory, prior conduct regarding the forced touching of appellants penis and the attempted rape of Carmen.

Appellant further argues that the incidents with Carmen and Maria were so remote in time as to require exclusion of the prior offense evidence. However, [n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. (People v. Branch (2001) 91 Cal.App.4th 274, 284.) In light of the strong similarities between the prior and current offenses, including the fact that three generations of the same family were victimized as children, the trial court was reasonable in concluding that the probative value of the evidence balanced out the remoteness. (People v. Waples (2000) 79 Cal.App.4th 1389, 1395; see also People v. Walker (2006) 139 Cal.App.4th 782, 807; People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch, supra, 91 Cal.App.4th at p. 284.)

Appellant also argues that the fact that appellant was not convicted of the prior incidents involving Carmen and Maria weighed against admissibility of this evidence. (See People v. Branch, supra, 91 Cal.App.4th at p. 284 [explaining that [i]f the prior offense did not result in a conviction, that fact increases the danger that the jury may wish to punish the defendant for the uncharged offenses and increases the likelihood of confusing the issues because the jury [has] to determine whether the uncharged offenses [in fact] occurred ].) According to appellant, not only did the jury have to decide whether appellant had actually sexually abused Carmen and Maria, it also might have wanted to punish appellant for committing those prior offenses, rather than assessing his guilt or innocence of the present charges. (See id. at p. 284.) However, the degree of certainty of the prior sex offenses commission is just one of many factors for the trial court to consider. (Falsetta, supra, 21 Cal.4th at p. 917.) Here, in light of the marked similarities between the past and present offenses, the lack of a conviction did not require exclusion of the evidence.

The prior sex offense evidence that the trial court admitted in this case was extremely similar to the charged offenses, and hence was relevant to the question whether appellant had committed the acts against J. and R. alleged in the information. The court reasonably found that the probative value of the prior offense evidence outweighed its potential for prejudice, and there was no abuse of discretion. (See Falsetta, supra, 21 Cal.4th at pp. 916-918.)

II. Exclusion of Expert Testimony

Appellant contends the trial court erred when it denied his request to introduce the testimony of Dr. Katherine Okla, who would have testified as an expert on the suggestibility of child witnesses and the forensic interviewing of children, thereby violating his constitutional right to present a defense. In addition, in his habeas petition, appellant contends defense counsel was ineffective due to his failure to retain an expert in a timely manner, failure to adequately prepare the expert for the section 402 hearing, and failure to ask the expert the proper questions at the hearing to elicit testimony from her that would demonstrate the relevance of her proposed trial testimony to the case.

A. Trial Court Background

Over the prosecutors objection, defense counsel sought to introduce Dr. Oklas testimony in the areas of suggestibility of child witnesses and forensic interview techniques. During a discussion with the trial court and the prosecutor regarding the proposed expert testimony, the court asked defense counsel what Dr. Oklas findings were. Counsel responded: She found that in her opinion, there were issues with, the technical phrase I believe she used was, report monitoring procedures with respect to how these children were dealt with. She found that there were inconsistencies in the manner of J.s reporting with that of the normal of [sic] other similarly situation children, based on the studies that have been done. [] And the one other area I dont remember, because I just took real brief notes, I asked her to actually send me an email with an outline of her findings, which unfortunately, apparently her home was without power for a great deal of the weekend, and I never got it. So I dont know the full extent of what her findings were, other than what Ive just related to the Court.

The trial court held a section 402 hearing to enable it to determine whether to permit Dr. Okla to testify as an expert witness at trial. At the hearing, Dr. Okla testified extensively regarding her training and experience, including, inter alia, that she had a Ph.D. in clinical psychology from the University of Michigan; that she had qualified as an expert in the areas of forensic interview techniques, suggestibility, and patterns of child sexual abuse 40 to 50 times, primarily in Michigan, but also in Arizona, Iowa, and Ohio; and that she had interviewed thousands of children during her clinical career, with the bulk of her current work involving conducting forensic interviews of children or critiquing such interviews.

Dr. Okla testified that she had reviewed the videotaped interviews of J. and R. and the relevant police reports prior to the hearing. She also testified generally about issues related to forensic interviewing and suggestibility in children. However, when asked by both the prosecutor and the trial court whether she had made any findings or reached any conclusions in this case regarding suggestibility and the forensic interviewing techniques used, she responded that she had not. She also had difficulty responding to the courts question whether her role in the case was as a consultant or an expert.

At the conclusion of the section 402 hearing, the trial court ruled as follows: I listened very carefully to the proposed expert, and when [sic] she had been posed any hypotheticals, whether she could actually render an expert opinion. And it appears that the information she has shared with the Court thus far is that she would provide suggestions of what may have resulted, in her opinion, to be pertinent areas to control forensic interviews and areas of suggestibility.

Shes indicated that she has not rendered any opinion with regards to suggestibility in this case, that shes not rendered any opinion with regards to forensic technique. I did not hear any discussion with regard to any hypothetical that may have been posed to her, and it appears on the totality of the circumstances and the testimony on the 402 hearing, that her participation, thus far, has been more by way of a consultant than an expert on the ultimate issues of suggestibility and forensic technique when making an evaluation, because when posed with those questions, she indicated she had suggestions in areas which you should be sensitive to.

So under [sections] 352, 801, 720, my review of her testimony, it appears her testimony is not relevant to these proceedings and that she D.s not qualify as an expert in the areas of suggestibility as it relates to this matter.

Defense counsel then asked if the court was finding Dr. Okla not qualified, and the court responded: Theres no grounds for her to be called as an expert witness in this particular case under the circumstances, under [section] 720, given her testimony and sequence [sic].

B. Legal AnalysisDirect Appeal

 A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code,  720, subd. (a).) (People v. Davenport (1995) 11 Cal.4th 1171, 1207.) The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. (Evid. Code,  801; [citation].) Such evidence is admissible even though it encompasses the ultimate issue in the case. (Evid. Code,  805; [citation].) (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)

The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: The competency of an expert is in every case a relative one, i.e., relative to the topic about which the person is asked to make his statement. [Citation.] [Citation.] Absent a manifest abuse, the courts determination will not be disturbed on appeal. [Citations.] (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)

In the present case, appellant argues that Dr. Oklas proposed testimony was the proper subject for expert testimony and was extremely relevant to the question whether J. and R.s statements and testimony regarding the molestation were tainted by improper forensic interview techniques. He asserts that the courts refusal to admit her testimony was an abuse of discretion. Appellant observes that no published California case has addressed the admissibility of expert testimony regarding the suggestibility of child witnesses and the forensic interviewing of children, but cites several cases from other jurisdictions that have found such expert testimony admissible.

For example, in State v. Speers (Ariz.Ct.App. 2004) 98 P.3d 560, 562, an Arizona appellate court held that the trial court erred when it refused to allow the defendant to present expert testimony regarding the proper protocols for interviewing young children to avoid suggestiveness and implantation of false memories. The court noted that, [a]lthough there are decisions to the contrary in some jurisdictions, most courts that have considered the issue hold that expert testimony regarding the methods for interviewing young children or evaluating the interview techniques used in a particular case is properly admissible. (Id. at p. 566.) The court explained that the proposed expert testimony was not the type subject to a reliability inquiry under Frye [v. United States (D.C. Cir. 1923) 293 F. 1013] and involves an area of expertise beyond the ken of the average layman [citation] . . . . (State v. Speers, at p. 567; accord, United States v. Rouse (8th Cir. 1997) 111 F.3d 561, State v. Wigg (Vt. 2005) 889 A.2d 233, 239; 571; State v. Sargent (N.H. 1999) 738 A.2d 351, 353-354; Barlow v. State (Ga. 1998) 507 S.E.2d 416, 417-418; State v. Sloan (Mo.Ct.App. 1995) 912 S.W.2d 592, 596-597; State v. Kirschbaum (Wis.Ct.App. 1995) 535 N.W.2d 462, 466-467.)

Respondent counters that the trial court properly denied appellants motion to admit Dr. Oklas testimony because her testimony was irrelevant; invaded the jurys province; and ran afoul of the Kelly-Frye[13] test, under which the admissibility of expert testimony based on a new scientific technique requires proof of its reliability. We need not address all of respondents arguments against admissibility because, even assuming expert testimony regarding the suggestibility of child witnesses and the forensic interviewing of children is otherwise admissible in California, we conclude that the trial court did not abuse its discretion in excluding Dr. Oklas testimony. This is because Dr. Okla did not demonstrate, at the section 402 hearing, how her testimony would be germane to the specific facts admitted in evidence at trial.

Specifically, while, in her testimony at the hearing, Dr. Okla spoke generally regarding suggestibility in children and the possible detrimental effect of some interview techniques, she never testified about particular concerns in this case. When asked multiple times whether she had made any findings or reached any conclusions regarding suggestibility in the present matter, her responses were extremely vague and indefinite. She did not point out any particular problems with the interviews and other evidence she had reviewed in the case, but instead merely spoke generally and theoretically about problems in interviewing children.

For example, when the prosecutor asked whether she had made any findings or reached any conclusions after reviewing the videotaped interviews and police reports, Dr. Okla responded: I wouldnt say Id draw any conclusions. I made some observations about the areas that I would have that I would suggest would be useful for an expert to testify about. When the prosecutor then asked what her observations were, Dr. Okla spoke generally about memory suggestibility in children and forensic interviewing techniques. Even when asked whether there was anything else, specifically as it relates to this case and what you reviewed, that she had told the defense she could testify to, Dr. Okla again spoke in generalities and mentioned possible questions to be asked, as for example: Just general issues about, you know, are there details? Are there sensory contactual details provided along with the allegation, or is it just a simple repeat of the same state [sic] over and over again? Are there inconsistencies in terms of what happened? Is there sort of an emotional or affective fit with what the content of the report is?

The closest Dr. Okla came to discussing the facts of this case occurred when the prosecutor asked what notes she took while going through the information in the case and Dr. Okla responded: Just I generally take notes of what people are saying during the interview. For example, I might note this is not a free narrative. Theres a lot of direct interrupting of the questioner or comments on whether or not the child understands the truth or a lie. I pretty much do that so I can go back and look at any inconsistencies, if I need to later on, sort of a run-in. Im taking my own verbatim notes during the interview. Again, Dr. Okla spoke theoretically about the type of notes she takes, and did not tie her response to any concrete findings regarding the facts of the case before her.[14]

The trial court also asked questions in an attempt to elicit specific answers regarding Dr. Oklas findings in this case, but to no avail. The court asked: With regards to suggestibility only, have you reached any conclusions with regards to the materials that you have reviewed in this case? Dr. Okla replied: No, not ultimate conclusions about whether or not they had been affected by questions about potential places, where they had been. The court followed up with another question, regarding whether Dr. Oklas conferences with counsel had been as a consultant to prepare lay witnesses or to cross-examine witnesses, as opposed to give an expert opinion on suggestibility? So have you acted as a consultant or an expert to give testimony on whether there was any suggestibility in this particular case? Dr. Okla responded: Its difficult for me to answer that question, because what I recall saying was here are places where you might need to go, and whether that was through a lay witness or through an expert witness, I dont know that I distinguished that. I suggest things that I, as an expert, could speak to like, for example, De Pools research on repeated question [sic] and the ability to influence children to believe something happened when it really didnt. And that would be an example of the type of information that might be usable.

As these excerpts make clear, when asked repeatedly about her findings and conclusions with respect to the evidence in this case, Dr. Okla testified that she had not reached any specific conclusions and merely spoke in generalities that did not relate to the particular facts at issue here. Moreover, when directly asked whether her involvement in the case was more as a consultant or expert witness, she did not state that she was an expert, but instead spoke vaguely about her suggestions regarding places [the defense] might need to go through either a lay or expert witness.

In light of Dr. Oklas failure to explain the relevance of her general testimony on suggestibility in children and forensic interviewing to the specific facts of this case or what her role would be, we find that the trial court acted well within its discretion when it found that her testimony was not relevant to the proceedings and that she did not qualify as an expert in the area of suggestibility as it relates to this matter. (See  720, 801[15]; People v. Ramos, supra, 15 Cal.4th at p. 1175; cf. State v. Willis (Wash. 2004) 87 P.3d 1164, 1167-1168 [Washington Supreme Court held that where expert did not offer to testify that improper interview techniques may have compromised child victims ability to accurately recall events, trial court did not abuse its discretion in excluding experts proposed testimony]; State v. Sargent, supra, 738 A.2d at p. 354 [New Hampshire Supreme Court held that [t]here must be a particularized showing that improper interview techniques were used . . . before a party can introduce expert testimony regarding proper techniques used to interview child victim witnesses]; Barlow v. State, supra, 507 S.E.2d at p. 418 [where Georgia Supreme Court explained that [c]ertainly, a trial court has the discretion to exclude expert testimony regarding how techniques of law enforcement officers and caseworkers could cause false memories or mistaken attributions [with a child witness], where the proffered testimony is not based upon either the facts within the experts knowledge or other facts admitted in evidence]; State v. Kirschbaum, supra, 535 N.W.2d at p. 467 [no erroneous exercise of discretion in trial courts denial of defense request to hire expert where there was only a broad assertion in [defendants] counsels affidavit that the psychologist would testify on the bias or suggestion that occurred in the interviews conducted with [the child victim]. [Defendants] counsel failed to point to a single specific example of an improper interview technique that her expert would discuss such that the court could invoke its decisional process. [Citation.]].)

Likewise, the court acted within its discretion in excluding Dr. Oklas testimony pursuant to section 352. (People v. Ramos, supra, 15 Cal.4th at p. 1175.) Given the courts finding that the testimony was not relevant to the matter at hand, its potential to necessitate an undue consumption of time and confuse the issues also warranted its exclusion under section 352. (See People v. Mickle (1991) 54 Cal.3d 140, 185 [trial court acted within its discretion when it excluded expert testimony, pursuant to section 352, where, inter alia, nothing in the offer of proof indicated that [the expert] would describe the particular facts or complexities of this case. The court could reasonably conclude that the probative value of [the experts] testimony was low, while the risk of undue delay and jury confusion was high. No error occurred].)[16]

C. Legal AnalysisHabeas Petition

In his petition for writ of habeas corpus, appellant claims that counsel was ineffective for failing to retain Dr. Okla in a timely manner, failing to adequately prepare her for the section 402 hearing, and failing to ask her proper questions at the hearing to elicit testimony from her that would demonstrate the relevance of her testimony to the case.

To prove ineffective assistance of counsel, a defendant must show that counsels representation fell below an objective standard of reasonableness . . . [] . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.) If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. (Id. at p. 697.)

With respect to appellants claim that defense counsel failed to retain an expert in a timely manner, in a declaration attached to the habeas petition, defense counsel stated that it took him and his investigator six months to find an expert, ultimately finding Dr. Okla in early October 2005, just before the start of appellants trial. Trial had been set for September 26, 2005, and counsel had requested a continuance, in part, as he explained at the hearing on his request, because he needed more time to contact, retain, and confer with an expert witness regarding witness suggestibility. The request for a continuance was denied, which was unexpected to defense counsel. Counsel therefore was only able to have several brief phone conversations and email exchanges with Dr. Okla and to meet with her briefly and receive her notes regarding the subject areas of her testimony on the morning of the section 402 hearing. Counsel did not have a complete grasp of what her testimony would be, nor did he ask her what her specific findings were regarding this case due to lack of time to adequately confer with her.

It is unclear from the record and from defense counsels declaration why it took him six months to retain an expert witness. However, even assuming that counsels late retention of Dr. Okla reflects inadequate representation on his part, for the reasons discussed, post, we find that any such deficiency did not affect the results of the proceeding. (See Strickland v. Washington,