In re Steven R.

























Filed 2/7/13 In re Steven R. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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In re STEVEN R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. STEVEN R. , Defendant and Appellant.	H036784 (Santa Clara County Super. Ct. No. JV36945)
In re JEREMY R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JEREMY R., Defendant and Appellant.	H036862 (Santa Clara County Super. Ct. No. JV37243)

After a
contested jurisdictional hearing, the juvenile court found that appellant
Steven R. had committed six counts and appellant Jeremy R. had committed one
count of forcible lewd conduct on a child
under 14 (Pen. Code, § 288, subd. (b)(1)).
Steven and Jeremy were both placed on probation. On appeal, both Steven and Jeremy contend
that (1) the evidence was insufficient to support the court’s jurisdictional
findings, (2) their trial counsel were prejudicially deficient in failing to
object to the admission of the victim’s notes about their offenses, (3) the
trial court erred in excluding some defense evidence, (4) the prosecutor
engaged in prejudicial misconduct in his examination of defense witnesses and a
rebuttal witness, (5) the court utilized the wrong standard to determine their
knowledge of the wrongfulness of their conduct, (6) the court improperly relied
on extrajudicial information in making its jurisdictional findings, (7) the
court erred in denying their request for a jury trial, (8) some of the
probation conditions are invalid or require modification, (9) the court erred
in its imposition of general fund fines and penalty assessments, and (10) the
court erred in ordering payment of attorney’s fees in the absence of
substantial evidence of ability to pay.
Steven individually asserts that his trial counsel was prejudicially
deficient in failing to object to the admission of recordings of a pretext call
and a police interview with him. Jeremy
separately contends that the court erred in ordering a copy of the transcript
of the pretext call between the victim and Steven to be provided to Jeremy’s
counselor. We reject their challenges to
the court’s jurisdictional findings.
However, we remand these matters with directions for the court to modify
the probation conditions, clarify the amount of Steven’s general fund fine, and
state the statutory bases for the general fund fines and penalty assessments
imposed on both Steven and Jeremy.



I. Factual Background

Jeremy and
Steven are brothers, and L.C. is their first cousin. Steven is about 16 months older than L., and
Jeremy is about five months older than her.
Steven, Jeremy, and L. all lived together in their grandmother’s home
with their siblings and parents from the time L. was two until she was nine
years old. Four families lived in the
home, and each family had one bedroom.
As children, the cousins “played together, played sports together.”

When L. was
four years old, Steven “started to dry hump me.” “He would pin me down on the floor and get on
top of me.” Steven was “a little bit
bigger” than L. at that time. Steven
would hold her hands and feet down and thrust his hips into her. She was not able to escape. This occurred twice when she was four years
old, on both occasions in a “clubhouse” in the backyard of their home.

Steven “started
doing other stuff” when L. was six years old.
He touched her chest over her clothing and kissed her. She told him to stop, but he did not. After that, “[i]t got worse.” When she was seven or eight years old, Steven
began touching both her chest and her genitals under her clothing. These touchings occurred “[a] few times a
week,” and each touching would last “[a] couple of minutes.” L. told him to stop and tried unsuccessfully
to remove his hands from her body.

When L. was
eight years old, Steven anally penetrated L. with his penis after forcing her
pants down over her resistance. He held
her chest against him so that she could not escape.

Steven also
started to digitally penetrate her. L.
recalled eight to 10 incidents of digital penetration. One digital penetration incident occurred
after they no longer lived in the same home.
L. was at a party at Steven’s home, and she had been playing video games
with a group of cousins. The other
cousins left the room, and L. tried to follow the last one other than Steven to
leave. Steven pulled her back into the
room and locked the door. L. tried to
fight him off and tried to pull his hands away from her, but he opened her
pants and put his hands inside her underwear.


There were
also occasions when Steven would expose his penis and “force” L.’s “hand to
grab his penis,” or “force [L.’s] hand inside his pants.” His penis was erect on these occasions. There were also two to five occasions when
Steven put his mouth on her vagina. She
was “fighting him off and stuff,” but he “held my hand with one of his hands
and his other hand took down my pants and he put his tongue on my vagina.” On one occasion, they were swimming in a
public pool, and Steven swam under her, pulled her bathing suit to the side,
and put his mouth on her vagina. She was
able to kick him away from her. On
another occasion, when L. was 8 years old, Steven pulled her onto a bed, sat on
her chest with his knees pinning down her arms, grabbed her jaw, pulled out his
penis, and put it in her mouth. She bit
down, and he hit her in the head. She
bit down again, and he hit her harder.

When L. was
approximately nine years old, Steven started putting his penis in her
vagina. One time, he entered the
bathroom while she was on the toilet, pulled her to the floor, held her down as
she was “fighting him telling him to stop” and trying to push him off of her,
and put his penis in her vagina. Steven
“began moving his hips back and forth.”
She told him “to stop and that it hurt.”
He told her “to shut up, that it felt good.” He was on top of her for 10 to 15
minutes. Steven stopped only when he
heard someone calling him. L. had
vaginal pain for the rest of the day after this event. There was one other time when Steven
penetrated her vagina with his penis.

When L. was
11 to 13 years old, Steven continued to fondle her chest, digitally penetrate
her vagina, and orally copulate her. On
one occasion, when Steven was 12 or 13, Steven again forced his penis into her
mouth, and ejaculated into her mouth.
Steven stopped molesting L. when she was 13. L. “was staying after school and he had a
girlfriend at that time.”

L.
testified that Steven molested her 50 to 100 times between the time he was 11
and 14.href="#_ftn1" name="_ftnref1" title="">[1] “He always forced himself on me.” She was always “resisting.” L. suffered bruises to her arms and ribs from
Steven’s hands. Most of these incidents
happened after school when the only adult in the home was their grandmother,
and Steven and L. were alone. The
remainder of the incidents happened at Steven’s home when Steven’s mother was
babysitting L. or during family gatherings.


Jeremy also
molested L. when she was 11 and he was 11 and 12 years old. Twice, when Jeremy was spending the night at
L.’s home, he got on top of her, pinned her down, and thrust his hips into
her. About five times, Jeremy forced her
hand into his pants, put his hand over her hand, and made her hand “go up and
down” on his penis for a few minutes.
One of these occasions occurred in the garage. Jeremy forced L. onto a couch as she fought
back before forcing her to touch his penis.
Another of these incidents occurred at Jeremy’s house in his room. On that occasion, Jeremy forced her onto the
bed, held her down with one hand, and used his other hand to stick L.’s hand
down his pants. On the final occasion,
after forcing her hand down his pants, Jeremy asked L. “did I want this or did
it feel good, did I want to try.” She
said no, and there were no more incidents.


L. did not
tell anyone about these incidents because she was “scared” that Steven “would
hurt me.” L. was not “scared” of Jeremy,
but she did not report his molestations because she feared Steven. Steven and his brothers frequently punched,
hit, and bullied L. Steven had punched
her in the arms and legs leaving bruises, and he had hit her in the head during
one of these incidents. “Most of the
time [the bullying and punching by Steven and his brothers] was playful, but
sometimes it was mean.” L. also did not
think she would be believed, as Steven and his brother were not punished for
hitting and bullying her. L. did tell
her mother that her bruises came from Steven and Jeremy hitting her, but she
did not disclose the molestations.

A couple of
years after the molestations ended, L.
first disclosed that she had been molested when she told a doctor in August
2009. The doctor had asked L. whether
she had ever been sexually assaulted, and L. hesitated. The doctor “pursued me on that and that’s when
I said that Steven had raped me.” She
did not tell the doctor more about the molestations. L. thought that her disclosures to the doctor
would be confidential, and she did not realize that her doctor was a mandated
reporter. She told her doctor that she
did not want to report that she had been molested.

L. was
contacted by San Jose Police Detective Stella Cruz-Foy soon after her
disclosure to her doctor. After an
initial telephone contact during which L. refused to identify her molester and
said only that she had been raped once by her cousin, Cruz-Foy met with L. a
few weeks later at her school. At this
September 2009 interview, L. disclosed that both Steven and Jeremy had molested
her. L. told Cruz-Foy everything she
could remember at that time. After this
interview, Cruz-Foy arranged for L. to make a “pretext phone call” to
Steven. The pretext call, during which
Steven admitted molesting L., occurred in October 2009. Cruz-Foy subsequently interviewed Steven, and
Steven made some admissions during this interview.



II. Procedural Background

Petitions
were filed alleging that both Jeremy and Steven came within the provisions of
Welfare and Institutions Code section 602.
At the contested jurisdictional hearing, L.’s grandmother and
grandfather testified that they had never seen L. try to avoid Steven or
Jeremy. The grandmother acknowledged
that she was babysitting up to nine grandchildren much of the time and could
not be watching all of them at all times.
The grandfather was not at home during the day as he worked until 6:00
p.m. Jeremy testified that he had never
molested L. in any way.

Steven
testified that he had touched L. over her clothing and once under her
clothing. He also admitted having moved
her bathing suit aside, but he insisted that he “just moved it aside” and
“didn’t do nothing to it.” Steven denied
all of L’s other allegations and denied that he had ever “forced” L. to do
anything to him. He claimed that L. had
repeatedly put her hand on his pants over his penis. Steven testified that he “stopped” when “I
realized it was wrong what we were doing.”
However, he admitted that he had been punished by his parents for
kissing L. when he was five years old.
He claimed that he understood as a result that the kissing was wrong but
did not realize that touching her vagina was wrong. Steven asserted that he was unable to recall
when the touchings had ended.

The court
found the allegations in both petitions true and found them to be
felonies. The probation department
recommended that both Jeremy and Steven be placed on probation on numerous
conditions, and the court adopted this recommendation with a few
modifications. Steven and Jeremy both
timely filed notices of appeal.



III. Discussion

A. Sufficiency of the Evidence

In our
review of the sufficiency of the evidence, we view the evidence in the light
most favorable to the court’s findings.
(In re Roderick P. (1972) 7
Cal.3d 801, 808-809.)

1. Steven

Steven
claims that there was not substantial evidence of six acts of forcible lewd
conduct during the charged period. We disagree.

“[I]n
determining the sufficiency of generic testimony, we must focus on factors
other than the youth of the victim/witness.
Does the victim’s failure to specify precise date, time, place or
circumstance render generic testimony insufficient? Clearly not.
As many of the cases make clear, the particular details surrounding a
child molestation charge are not elements of the offense and are unnecessary to
sustain a conviction. [Citations.] [¶] The
victim, of course, must describe the kind
of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has
occurred and to differentiate between the various types of proscribed conduct
(e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe >the number of acts committed with
sufficient certainty to support each of the counts alleged in the information
or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe >the general time period in which these
acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each
Sunday morning after he came to live with us’), to assure the acts were
committed within the applicable limitation period. Additional details regarding the time, place
or circumstance of the various assaults may assist in assessing the credibility
or substantiality of the victim’s testimony, but are not essential to sustain a
conviction.” (People v. Jones (1990) 51 Cal.3d 294, 315-316.)

L.’s
testimony was sufficient to support the court’s findings that Steven committed
six forcible lewd acts during the charged period. First, L.’s testimony sufficiently described
the general time period during which the acts occurred and the number of
acts. Steven’s amended petition alleged
that all of his offenses had occurred between April 9, 2004 (when
Steven was 11 years old and L. was nine years old) and August 10, 2008
(when Steven was 15 years old and L. was 13 years old).href="#_ftn2" name="_ftnref2" title="">[2] L. testified at trial that she was sexually
assaulted by Steven 50 to 100 times when Steven was between 11 and 14 years
old, which was within the charged time period.
This testimony adequately identified the number of acts. Second, L. testified that Steven committed
three types of acts against her during this time period. She described two specific incidents of rape
when she was nine years old and also testified that, when she was 11 to 13
years old, Steven repeatedly digitally penetrated her vagina and repeatedly
orally copulated her and forced her to orally copulate him. Finally, L. testified that all of Steven’s
acts were forcible and perpetrated against her physical resistance. “He always
forced himself on me.” (Italics
added.) She was always “resisting.”

Steven
argues that L.’s testimony was inadequate because she did not “specifically
describe” the force involved in six specific incidents during the relevant time
period. He concedes that her testimony
was sufficient to support three counts of forcible lewd conduct during that
period, but he claims that it was not sufficient to support the other three
counts of forcible lewd conduct and asks that those counts be reduced to
nonforcible lewd conduct. Steven’s
argument is inconsistent with Jones. As long as the victim’s generic testimony is
sufficient to support each element of the offense, the victim need not describe
specific events in any greater detail.
Moreover, we “ ‘presume the
existence of every fact the trier could reasonably deduce from the evidence in
support of the judgment.’ ” (In re
Arcenio V. (2006) 141 Cal.App.4th 613, 615.) The evidence in this case included quite
detailed descriptions of the force that Steven used to perpetrate his various
sex acts against L. While L. did not
provide specific descriptions of the force used during six specific acts during
the relevant time period, L’s testimony that Steven “always forced himself” on
her, coupled with her detailed descriptions of the type of force he used to perpetrate
the types of acts he committed against her during this time period, was
sufficient to permit the juvenile court to “reasonably deduce” that he used the
same type of force on all of the occasions within the relevant time period as
he had used on the occasions she described in detail.

“A
defendant uses ‘force’ if the prohibited act is facilitated by the defendant’s
use of physical violence, compulsion or constraint against the victim other
than, or in addition to, the physical contact which is inherent in the
prohibited act.” (People v. Bolander (1994) 23 Cal.App.4th 155, 163 (Mihara, J.
concurring) (Bolander).) “The evidentiary key to whether an act was
forcible is not whether the distinction between the ‘force’ used to accomplish
the prohibited act and the physical contact inherent in that act can be termed
‘substantial.’ Instead, an act is
forcible if force facilitated the act rather than being merely incidental to
the act.” (Id. at pp. 163-164.) “[A]cts
of grabbing, holding and restraining that occur in conjunction with the lewd
acts themselves” are sufficient to support a finding that the lewd act was
committed by means of force. (>People v. Alvarez (2009) 178 Cal.App.4th
999, 1005 (Alvarez).)

Steven’s
focus on the force used to perpetrate fondlings of L.’s chest is misplaced, as
L. clearly identified more than six acts of rape, digital penetration, and oral
copulation during the charged period, and her descriptions of the force used to
perpetrate those acts were plainly sufficient to demonstrate the use of
“force.” He pinned her down to
accomplish the rapes and held her hands to overcome her resistance to the
digital penetrations and oral copulations.
His “grabbing, holding and restraining” (Alvarez, supra, 178
Cal.App.4th at p. 1005) was sufficient to support findings of force.

The
evidence supports the juvenile court’s findings that Steven committed six acts
of forcible lewd conduct within the charged period.

2. Jeremy

Jeremy
makes three challenges to the sufficiency of the evidence. First, he challenges the court’s finding that
he knew of the wrongfulness of his conduct.
Second, he contends that there was insufficient evidence of force to
support the juvenile court’s finding.
Finally, he claims that there was inadequate evidence that he acted with
the requisite specific intent.

“In
determining whether the minor knows of the wrongfulness of his conduct, the
court must often rely on circumstantial evidence such as the minor’s age,
experience, and understanding, as well as the circumstances of the offense,
including its method of commission and concealment.” (In re
James B. (2003) 109 Cal.App.4th 862, 872.)
Jeremy’s lewd acts against L. were always preceded by his efforts to
isolate L. where they could not be seen by others. During the incidents, he ignored her pleas to
stop and used force to overcome her resistance.
He always discontinued his conduct when he heard someone coming. Jeremy’s use of concealment and force along
with his obvious fear of discovery provided the requisite proof that he was
aware of the wrongfulness of his conduct.
Had he thought that his conduct was not wrongful, there would have been
no need to conceal it, to fear discovery, or to use force to perpetrate it. While Jeremy was just 11 or 12 years old when
he engaged in this conduct, the circumstances of the offenses rebutted the
inference that his youth precluded him from knowing that his conduct was
wrongful.

As we have
already noted, force may be established by evidence of “compulsion or
constraint against the victim other than, or in addition to, the physical
contact which is inherent in the prohibited act.” (Bolander,
supra, 23 Cal.App.4th at p. 163
(Mihara, J. concurring).) Evidence that
the act was facilitated by “grabbing, holding and restraining” the victim
satisfies the force requirement. (>Alvarez, supra, 178 Cal.App.4th at p. 1005; Bolander, at pp. 163-164.)

L.
testified that, on one occasion, Jeremy forced her onto a couch as she fought
back before forcing her to touch his penis and, on another occasion, he forced
her onto a bed, held her down with one hand, and used his other hand to stick
L.’s hand down his pants. His acts of
grabbing, holding, and restraining L. facilitated his acts and were not merely
incidental to them. Therefore, there was
sufficient evidence of force to support the court’s finding.

The
specific intent element of lewd conduct requires that the perpetrator act with
“the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child.”
(Pen. Code, § 288, subd. (a).)
“Because intent can seldom be proved by direct evidence, it may be
inferred from the circumstances.” (>In re Jerry M. (1997) 59 Cal.App.4th
289, 299.) The fact that Jeremy ensured
that his acts took place in seclusion suggests that he wanted to obtain sexual
gratification. More importantly, the
fact that he compelled L. to stroke his penis in a masturbatory fashion and
that his penis was erect at the time was highly suggestive of an intent to
gratify his own sexual desires. While
his youthfulness might weigh against such a finding in other circumstances,
these circumstances were so clearly calculated to appeal to Jeremy’s sexual
desires that they cannot be outweighed.
The evidence supports the juvenile court’s specific intent finding.





B. Ineffective Assistance

Steven and
Jeremy contend that their trial counsel were deficient in failing to renew
their hearsay objections to the admission of L.’s “notes.” Steven contends that his trial counsel was
prejudicially deficient in failing to object to the admission of “involuntary
statements” made by Steven during the pretext call and to his statements during
a subsequent police interview (on the ground that they were tainted by the
pretext call statements).

1. Notes

a. Background

Cruz-Foy
interviewed L. in September 2009 and again in April 2010. In August 2010, L. prepared two sets of
notes. One set of notes was two and
one-half pages of single-spaced handwritten narrative recounting in detail
Jeremy’s molestations of her. The second
set of notes was 11 and one-half pages of single-spaced handwritten narrative
recounting in great detail Steven’s molestations of her. In September 2010, L. was interviewed by an
investigator for the district attorney’s office.href="#_ftn3" name="_ftnref3" title="">[3] She told him everything she could remember at
that time.

During the
prosecutor’s direct examination of L. at the jurisdictional hearing, he asked
her about the notes. L. testified that
she had written down in these notes “everything [she] could remember” about the
molestations. When the prosecutor sought
admission of the notes, the defense objected on hearsay grounds.href="#_ftn4" name="_ftnref4" title="">[4] The prosecutor asked to reserve the issue
until after cross-examination because he expected “that there will be prior
consistent or inconsistent statements provided in these documents based on
counsel’s cross-examination.” The court
reserved the issue.

Steven’s
trial counsel cross-examined L. extensively about the notes, asking her about
much of the content in the notes about Steven.href="#_ftn5" name="_ftnref5" title="">[5] He also questioned L. about inconsistencies
between her testimony on direct and her statements to the district attorney’s
investigator. Jeremy’s trial counsel
suggested in his cross-examination of L. that there were certain details that
L. had never mentioned prior to her trial testimony.href="#_ftn6" name="_ftnref6" title="">[6] He asked her about her interview with the
district attorney’s investigator and about her notes. Jeremy’s trial counsel proceeded to rely
heavily on the content of the notes in examining L. about inconsistencies
between the notes and her testimony. He
also cross-examined her about inconsistencies between her testimony and
statements she had made to the district attorney’s investigator, and about
inconsistencies within her statements to the district attorney’s
investigator.

After
cross-examination, the prosecutor renewed his request for admission of the
notes. “The People believe there’s been
sufficient impeachment of consistent and inconsistent statements provided by
both counsel during cross-examination for the documents to overcome the hearsay
objection made earlier.” Both defense
attorneys stated that they had no objections, and the court admitted the notes
into evidence. On redirect, the
prosecutor questioned L. about the notes.


The defense
subsequently sought and obtained admission of the entirety of L.’s interview
with the district attorney’s investigator on the grounds that she had made
inconsistent statements during that interview.
This interview was played in court.


b. Analysis

Steven and
Jeremy contend that their trial counsel were prejudicially deficient in failing
to renew their hearsay objection to the admission of the notes. They claim that the notes were not admissible
under Evidence Code section 791.

“Evidence
of a statement previously made by a witness that is consistent with his
testimony at the hearing is inadmissible to support his credibility unless it
is offered after: [¶] (a) Evidence of a statement made by him that
is inconsistent with any part of his testimony at the hearing has been admitted
for the purpose of attacking his credibility, and the statement was made before
the alleged inconsistent statement; or
[¶] (b) An express or implied charge
has been made that his testimony at the hearing is recently fabricated or is
influenced by bias or other improper motive, and the statement was made before
the bias, motive for fabrication, or other improper motive is alleged to have
arisen.” (Evid. Code, § 791.)

Jeremy and
Steven contend that Evidence Code section 791, subdivision (a) is inapplicable
here because they did not attack L.’s credibility with any inconsistent
statements made after the preparation of the notes. Steven concedes that his trial counsel
“ask[ed] [L.] several questions” about her interview with the district
attorney’s investigator (which occurred after preparation of the notes), but he
claims that these questions “did not focus on” inconsistencies between her
testimony and her statements in the interview.
We disagree. Steven’s trial
counsel asked L.: “Now, when you were
talking to the D.A.’s investigator you said that the rape in the bathroom >happened when you were 10, not when you were
7. And that he pulled you off of the
toilet while you were using it, is that correct?” (Italics added.) L. had testified on direct that this incident
occurred when she was eight or nine
years old. This question by Steven’s
trial counsel therefore clearly focused on the inconsistency between L.’s
testimony and her statement to the district attorney’s investigator about the
age when this incident occurred.
Jeremy’s trial counsel also focused on an inconsistency between L.’s
direct testimony and her statement to the district attorney’s investigator. He asked L.:
“[Y]ou told them, both the D.A. and the investigator that Steven
actually pulled you over the bed, pulled the sheets over you and that’s when he
sodomized you. Your testimony today is
Steven walks into the room and goes and lies down next to you, and gets behind
you, and holds you, and then sodomized you.”
L. explained that her statement to the district attorney’s investigator
was accurate. Jeremy’s trial counsel
then asked: “But that wasn’t your
testimony just about an hour ago. Do you
have an explanation?” This too was an
attempt to focus the trier of fact’s attention on an inconsistency between L.’s
testimony and a prior statement made after preparation of the notes.

Both Steven
and Jeremy contend that, even if their trial counsel did impeach L. with her
inconsistent statements to the district attorney’s investigator, that would not
justify the admission of the “entirety of the notes” but only of “certain
aspects” of the notes. Neither of them
elaborate on this contention. Evidence
Code section 791, subdivision (a) contains no such limitation. It requires only that the prior consistent
statement be “offered after” evidence of a later statement “inconsistent with
any part of his testimony at the hearing has been admitted for the purpose of
attacking his credibility . . . .” (Evid. Code, § 791, subd. (a).) The statute does not require that the prior
consistent statement concern the same fact as the prior inconsistent
statement. The credibility focus of the
statute and its broad reference to a statement that is inconsistent “with any
part” of the witness’s testimony suggests that the statute was intended to
permit prior consistent statements to be admitted to support a witness’s
credibility generally when it is attacked with a prior inconsistent statement
rather than merely to rebut such an attack as to a particular factual
issue.

In any
case, it is inconceivable that trial counsel would have been successful in
obtaining such a limitation in this case because they had both introduced a
large amount of the content of the notes through their own questioning of
L. (See Evid. Code, § 356.) In fact, the record strongly indicates that
trial counsel made a strategic decision to utilize the notes and L.’s
inconsistencies during the interview with the district attorney’s investigator
to attack L.’s credibility rather than attempt to obtain the exclusion of all
or parts of the notes. “Judicial
scrutiny of counsel’s performance must be highly deferential[;] . . . a court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.”
(Strickland v. Washington
(1984) 466 U.S. 668, 689.) Thus,
whenever counsel’s conduct can be reasonably attributed to sound strategy, a
reviewing court will presume that the conduct was the result of a competent
tactical decision, and the defendant must overcome that presumption to
establish ineffective assistance. (>Ibid.)
The main thrust of the defense at trial was that L.’s inconsistencies
demonstrated that she was not a credible witness. Their trial counsel’s strategy to utilize the
notes and the interview with the district attorney’s investigator to support
this defense theory was not unreasonable.
Jeremy and Steven make no attempt on appeal to overcome the presumption
that their counsel made a competent tactical decision to allow the notes to
come into evidence.href="#_ftn7" name="_ftnref7"
title="">[7] They have failed to establish that their
trial counsel were deficient in this regard.




2. Pretext Call

Steven
contends that his trial counsel was prejudicially deficient in failing to
object to the admission of a recording and a transcript of the pretext call.

a. Background

The pretext
call occurred after Cruz-Foy interviewed L. in September 2009. Cruz-Foy “asked [L.] if she could make a
pretext phone call” to Steven. Cruz-Foy
gave L. “the recorder” and told her that she could “do it on her own without me
present.” L. tried to call Steven on her
own, but she was unable to reach him.
When L. actually reached Steven, she did so in Cruz-Foy’s presence at
the YMCA. Cruz-Foy testified that she
“conducted” the pretext call, listened to the conversation between L. and
Steven during the pretext call, and recorded it. She also testified that it was her practice
to “guid[e] the victim as to what kind of questions to ask.”

During the
pretext call, L. asked Steven if he remembered “what you did to me?” He said “No.”
This colloquy followed:
“[L.]: You know when you touched
my vagina? [¶] STEVEN:
When we were little? [¶] [L.]:
Yeah. [¶] STEVEN:
(*) long time ago? [¶] [L.]:
Yes. [¶] STEVEN:
Uh-huh. [¶] [L.]:
Well, I just want to ask you, you know why did you do that? Why do you touch my vagina? [¶]
STEVEN: I don’t know that was a
long time ago. I mean when we were
little, little.” After Steven claimed a
lack of memory, L. said: “You just told
me we did that stuff when we were kids.”
Steven responded: “Yeah, that’s
all I know, but I don’t know, remember anything like about it.” “[L.]:
I’m just asking why you did it.
[¶] STEVEN: Well, I don’t know, but (*) because you were kids.” L. sought an apology and insisted that she
needed to know “[w]hy you did it.”
Steven responded: “Well, I don’t
have a reason.” Then, this colloquy
occurred: “[L.]: I never said anything to anybody if that’s on
your mind right now. I don’t want to
tell anybody this I just want an apology of why me. [¶]
STEVEN: Uh, great, really I don’t
know why you know I was young and stupid now that you think about it you
know? [¶] [L.]:
But you forced me to touch your penis.
And you put your fingers in my vagina Steven. [¶]
STEVEN: Well, I know I was young
and stupid and now alright I’m sorry.
[¶] [L.]: You’re sorry?
[¶] STEVEN: Yeah.”
L. asked: “Can you tell me what
you’re sorry what are you sorry for?”
Steven responded: “For what I
did.” L. said that he had “just stopped
two years ago,” and asked “Why did you stop Steven?” He responded:
“Hmm, because I finally knew that, knew that it was bad.” When L. asked “why did you start” and “why
didn’t you stop when I said no,” Steven responded “I don’t know.” L. mentioned numerous incidents of
molestation by Steven, and he did not deny her assertions. At the end of the conversation, Steven asked
if he could call her back later. She
said: “No, it’s okay I just wanted an
apology.” Steven said: “Okay, well, sorry.” Just before she hung up, L. told Steven: “I’m not gonna tell anybody about this by the
way.” Steven said “Okay,” and they said
“bye” to each other.

Cruz-Foy
interviewed Steven nine days after the pretext call. During this interview, he admitted that he
had “kissed” L. on the lips when they were in the first or second grade and he
was six years old. “I didn’t know it was
bad you know I was little.” He initially
denied putting his hands in L.’s pants, and denied any recollection of the
other sexual acts that L. had reported.
Steven also denied that L. had “ever confronted [him] on this or
anything.” After this denial, Cruz-Foy
told Steven that she knew he was lying because she had been present during the
pretext call. Steven claimed: “I gave her an apology for, for it, but I
don’t remember none of that.” Cruz-Foy
asked him “why you did it,” and Steven said “Cause I was young.” He claimed that “she didn’t tell me to stop
you know.” “But I didn’t know it was bad
you know, cause I was young, I didn’t know it was bad. I was like probably, I wasn’t even like ten
years old yet you know?” He asked: “Am I gonna get in trouble for any of this,
cause?”

He told
Cruz-Foy that he now remembered putting his hands down L.’s pants but not
putting his fingers in her vagina. He
thought this had occurred “[p]robably like two or three” times. He claimed that L. would place his hand on
her and “try to make me rub it then I’ll just put my hand inside her pants
that’s it.” He insisted that only “one
time” was “under her underwear.” He also
insisted that L. never said stop and that she “would pull me on top of her on
the bed.” “And then she’ll like start
trying to like move like uh, humping me.”
He said this “humping” happened twice. Steven denied having vaginal or anal sex with
L. or ever putting his finger in her vagina.


He also
denied ever having gone to the public swimming pool. However, he admitted that, in the pool at his
home, he had pulling her swimming suit to the side. Yet he denied ever putting his mouth on her
vagina or ever having L. put her mouth or her hand on his penis. Steven claimed that L. “would grab” his penis
over his clothing when they were sitting next to each other watching
television. He denied that L. had ever
touched his penis under his clothing. He
also denied ever using force and denied that L. had ever said no. Steven said that these incidents stopped when
“I finally realized it was bad like.” He
claimed that he stopped “a long time ago,” which was more than two years ago,
maybe when he was 11 or 12 years old.

Steven’s
trial counsel was the first to mention the pretext call at the jurisdictional
hearing when he asked L. about it during his cross-examination of her. His questioning of L. appeared to be intended
to demonstrate that Steven had not made significant admissions during the
pretext call. Steven’s trial counsel
expressly stipulated to “the foundation” for admission of the pretext call. A recording of the pretext call was played at
the end of the prosecution’s case without objection, and it was received into
evidence without objection. A recording
of Cruz-Foy’s interview with Steven was also played in court without objection
and received into evidence without objection.


b. Analysis

Steven
contends that his trial counsel was prejudicially deficient in failing to
challenge the admissibility of the recording of the pretext call on the ground
that it contained “involuntary statements” by Steven.

He concedes
that an analysis of the voluntariness of Steven’s statements is required only
if those statements were obtained by “state action.” “A finding of coercive police activity is a prerequisite for a finding that a confession
was involuntary under the due process clauses of the federal or the state
Constitution.” (People v. Mayfield (1997) 14 Cal.4th 668, 759.) “ ‘Absent
evidence of complicity on the part of law enforcement officials, the admissions
or statements of a defendant to a private citizen infringe no constitutional
guarantees.’ ” (In re
Eric J. (1979) 25 Cal.3d 522, 527.)
Since the pretext call was solely between Steven and L., the key
question is whether L. was acting as a “police agent” when she spoke with
Steven during the pretext call. Steven
predicates his claim that L. was acting as an agent of the state on three
cases.

>People v. Walker (1972) 29 Cal.App.3d
448 (Walker) was a case in which a
doctor hired by the prosecution interviewed the defendant while he was in
jail. At the outset of the interview,
the doctor advised the defendant of his constitutional
rights and the defendant invoked his right to an attorney, which the doctor
disregarded. (Walker, at pp. 451-452.)
The Court of Appeal concluded that the doctor’s failure to heed the
defendant’s invocation was a violation of the defendant’s constitutional
rights. It concluded that the doctor was
clearly acting as an agent of the state because he was hired by the prosecutor
to perform the interview. (>Walker, at pp. 453-454.) Walker
is clearly inapposite. L. was not hired
by the prosecutor to interview Steven.
Steven had a conversation with his cousin, not with an employee of the
prosecution. Walker does nothing to show that this conversation involved >state action.

>People v. Cribas (1991) 231 Cal.App.3d
596 (Cribas) involved a telephone
conversation between a rape victim and a jailed defendant who had been
appointed counsel. The rape victim was
provided housing by the state making her, in the court’s view, a “paid informant,”
and she was instructed to extract incriminating statements from the
defendant. (Cribas, at p. 604.) The
issue was whether the state had violated the defendant’s Sixth Amendment rights
by having the rape victim question him in the absence of counsel; the
voluntariness of his statements was not at issue. (Cribas,
at p. 605.) The court found that
the police had violated the defendant’s rights by engineering an interrogation
by the rape victim in the absence of counsel.
“In every sense, the police deliberately created the setting and led
Cribas into it. Surreptitious
questioning was conducted at their request about a matter on which counsel had
been appointed.” (Cribas, at p. 605.)

While >Cribas has a few factual similarities to
the situation before us, it is distinguishable.
Cribas did not involve the
Fifth Amendment, but the Sixth Amendment.
The court in Cribas viewed the
rape victim as a “paid informant,” which easily established that she was an
agent of the state, and focused on whether the police had engineered a
violation of Cribas’s Sixth Amendment rights.
Here, our concern is the Fifth Amendment and voluntariness, neither of
which were at issue in Cribas. L. was not compensated by the police or the
prosecution. There is no evidence here
that L. was acting as an agent of the state rather than simply as a crime
victim assisting the police in their investigation of that crime.

Steven’s
reliance on Arizona v. Fulminante
(1991) 499 U.S. 279 (Fulminante) is
also misplaced. The href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court did not consider in Fulminante whether there was state action because the parties
agreed that there was state action.href="#_ftn8"
name="_ftnref8" title="">[8] (Id. at
p. 287, fn. 4.)

In our
view, where a crime victim simply participates in a recorded pretext call to
the unincarcerated perpetrator of the crime, who is the victim’s family member,
the victim is not acting as an agent of the state for href="http://www.fearnotlaw.com/">Fifth Amendment voluntariness purposes.href="#_ftn9" name="_ftnref9" title="">[9] Cruz-Foy recorded the call, but she did not
participate in it. Indeed, she
originally suggested that L. make the call on her own, and there was no
evidence that Cruz-Foy manipulated L.’s conversation with Steven beyond providing
advice to L. None of the coercive
pressures associated with state action are present in this situation. Consequently, as there was no state action,
Steven’s trial counsel was not deficient in failing to move to suppress the
recording of the pretext call on Fifth
Amendment grounds.href="#_ftn10"
name="_ftnref10" title="">[10]

Furthermore,
Steven’s trial counsel was not deficient in failing to seek suppression of the
pretext call on voluntariness grounds because such a motion had no prospect for
success. “A finding of coercive police
activity is a prerequisite to a finding that a confession was involuntary under
the federal and state Constitutions.
[Citations.] A confession may be
found involuntary if extracted by threats or violence, obtained by direct or
implied promises, or secured by the exertion of improper influence. [Citation.]
Although coercive police activity is a necessary predicate to establish
an involuntary confession, it ‘does not itself compel a finding that a
resulting confession is involuntary.’
[Citation.] The statement and the
inducement must be causally linked.” (>People v. Maury (2003) 30 Cal.4th 342,
404-405.)

What is
lacking here is any inducement for Steven to make incriminating
statements. Steven contends that L.
impliedly promised to conceal the molestations if he apologized, thereby
inducing his admissions. However, the
transcript of the pretext call rebuts this interpretation. By the time L. told Steven that she “never
said anything to anybody” and “I don’t want to tell anybody this I just want an
apology,” Steven had already made substantial admissions. Steven’s trial counsel could not have
believed that she would be able to credibly rebut the prosecution’s showing that
the alleged inducement, which occurred in the midst of a string of admissions
by Steven, had not caused Steven’s
admissions. Consequently, she was not
deficient in failing to seek suppression on this ground.



C. Evidentiary Issues

Steven and
Jeremy contend that the juvenile court violated their confrontation rights by
restricting questioning of L. regarding her relationship with a former teacher
and also erred in excluding evidence of L’s “physical aggressiveness.”

1. Relationship With Former
Teacher

a. Background

During
Jeremy’s trial counsel’s recross of L., he asked her if she had had a middle
school teacher named John Servanda. She
confirmed as much. When he asked her
what grade this was in, the prosecutor objected on relevance and “outside the
scope of direct” grounds. Jeremy’s trial
counsel claimed that this was relevant because “[i]t’s our argument that the
minor is in a current . . . inappropriate relationship with
that teacher” and “that all of these allegations are as a result of that
particular relationship . . . . And the minor is using the allegations
against both these minors to cover up that particular relationship.” He insisted that he was not asserting that there was “any kind of sexual relationship,” but
only that “[t]hey hung out together.
They went camping together. At
this point, they may be residing together.”
The trial court was skeptical.
“And when you say ‘inappropriate,’ don’t be trying to get something past
this Court. You’re talking about a
sexual relationship. If you weren’t, why
would you bring it up?”

When the
court sought the factual basis for his questions, Jeremy’s trial counsel
vaguely referred to a letter to Servanda that had apparently been forwarded to
L.’s residence and to a report that Servanda had been seen dropping L. off at
her grandmother’s home. He again denied
that he was trying to show that L. had a sexual relationship with
Servanda. “I have no evidence of there
being anything sexual going on between [L.] and [Servanda].” He premised the relevance of his proffered
evidence on reports that L. had hugged, kissed, and held hands with Servanda in
public, that Servanda had “purchased presents” for L., and that Servanda had
gone “trick or treating” with L. He
claimed that any kind of
“relationship” between a teacher and a student was “inappropriate.” The prosecutor asked the court to exclude
this evidence under Evidence Code sections 352 and 782. He represented that, in fact, Servanda was a
friend of L.’s family.

The court
reasoned that the implication of an “inappropriate relationship” was tantamount
to a claim of a sexual relationship, for which there was no factual basis. The court concluded that all of the href="http://www.mcmillanlaw.com/">proffered evidence, other than the
holding hands and kissing, would establish nothing more than that L. and
Servanda had a “friend relationship.”
The evidence of holding hands and kissing amounted to allegations of
sexual conduct, which were barred because the defense had not complied with Evidence
Code section 782. The court found the
proffered evidence to be “irrelevant” and to have, at best, minimal probative
value. “[I]t would be an undue
consumption of court trial to have a mini trial within the trial to have this
court get to the bottom of whether or not this actually happened or not.” “So the court has considered all of this
under 352. The court engaged in a
balancing process to determine if the probative value of the evidence in the
prior act is substantially outweighed by the possibility that its admission
will create a substantial danger of undue prejudice.”

Nevertheless,
the court decided that “the defense has a critical point to make in this case,
which is that the minor is lying to hide a friend relationship with [Servanda]
and I will allow that. [¶] But the question has to be phrased in this
way: quote, is it true that you were
saying that you were sexually assaulted by Steven or Jeremy to hide a friend
relationship with John Servanda, close quotes.”
“No other questions can be asked of this area. If the witness says yes then you can explore
it going into the friend contacts which I’ve identified. If she says no there is no more questions
that can be asked by any of the three attorneys in the courtroom.” Jeremy’s trial counsel asked that precise
question. L. responded: “No, that’s not true.”

At the
commencement of the defense case, the prosecutor sought to exclude testimony
about Servanda. The court noted that
“[m]y ruling on the 782 content doesn’t extend to the friend relationship with
the teacher . . . .”
When the prosecutor sought the exclusion of evidence that Servanda had
been seen at “their home,” the court told the defense that “you are permitted
to go into it if you want.” During his
cross-examination of the mother of Jeremy and Steven, Jeremy’s trial counsel
elicited her testimony that L. had “brought” Servanda “to the house” on
Halloween of 2009. Jeremy testified that
he was aware of the “friend relationship” between L. and Servanda, and that he
knew that Servanda “would take her shopping and buy her stuff. They would go see movies together.”

b. Analysis

“ ‘ “[T]rial judges retain wide latitude
insofar as the Confrontation Clause
is concerned to impose reasonable limits
on . . . cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of issues, the witness’ safety,
or interrogation that is repetitive or only marginally relevant.” ’ ”
(People v. Jennings (1991) 53
Cal.3d 334, 372.) “ ‘ “[T]he Confrontation Clause guarantees
an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.”
’ ” (People v. Cooper (1991) 53 Cal.3d 771, 817 (Cooper).) “[R]eliance on
Evidence Code section 352 to exclude evidence of marginal impeachment value
that would entail the undue consumption of time generally does not contravene a
defendant’s constitutional rights to confrontation and cross-examination.” (People
v. Brown (2003) 31 Cal.4th 518, 545.)
“ ‘There is no Sixth
Amendment violation at all unless the prohibited cross-examination might
reasonably have produced “a significantly different impression of [the
witness’s] credibility . . . .” ’ ” (>Cooper, at p. 817.)

Steven and
Jeremy ignore the fact that their trial counsel disclaimed any intent to
introduce evidence of a sexual relationship between L. and Servanda and that
the trial court found that they were precluded from doing so because they had
failed to comply with Evidence Code section 782. They repeatedly argue that evidence of L.’s
“inappropriate” relationship with Servanda would have been “relevant to her
precocious knowledge of sexual matters” and to her “possible motivations” for reporting
that she had been raped by Steven.

The
juvenile court very carefully bifurcated the proffered evidence into two
categories. One category was evidence of
sexual conduct—kissing and holding hands—that was inadmissible due to a lack of
compliance with Evidence Code section 782.
Steven and Jeremy do not address Evidence Code section 782, so they
obviously do not purport to challenge the court’s ruling regarding this
category of evidence. The other category
was, as the court put it, evidence of a “friend relationship” between Servanda and
L. This category of evidence consisted
of evidence that L. had spent time with Servanda, including going
trick-or-treating with him, he had bought her presents, and he had dropped her
off at her grandmother’s home. The
relevance of this category of evidence is difficult to identify. Steven and Jeremy argued below and argue on
appeal that any relationship between a teacher and a student is by definition
“inappropriate.” However, they fail to
explain how the existence of an innocent friendship between L. and her former
teacher would have impacted L.’s credibility.
Their suggestion that L. might have made up her claim that Steven and
Jeremy sexually molested her to cover up her “inappropriate” friendship with
Servanda is not supported by the proffered evidence and is nothing more than
unsupported speculation. The juvenile
court’s balancing of the practically nonexistent probative value of the
proffered evidence against the consumption of time involved in its presentation
was clearly within the court’s discretion under Evidence Code section 352. Furthermore, the court did permit them to ask
L. about this speculative theory, albeit limiting them to one very carefully
constructed question. We can find no
abuse of discretion in the juvenile court’s ruling in this regard. Moreover, presentation of further evidence of
L.’s friendship with Servanda, which the trial court did not preclude the
defense from presenting through its own witnesses, would not have created “ ‘ “a significantly different impression
of [the witness’s] credibility” ’ ”
(Cooper, supra, 53 Cal.3d at p. 817), so it was not a violation of the
Confrontation Clause.

2. L’s Alleged Aggressiveness

a. Background

L.
testified that she was unsuccessful in her attempts to physically resist Steven’s
molestations of her. On cross, Steven’s
trial counsel elicited L.’s testimony that she had “wrestled” with boys. During Jeremy’s trial counsel’s
cross-examination of L., he elicited her testimony that she “used to roughhouse
with the bigger boys” and “played football” and “wrestled” with them.

Before the
defense witnesses testified, the prosecutor moved to exclude “irrelevant” and
“inadmissible character evidence” concerning L.’s alleged “penchant for
violence.” He sought exclusion of
testimony that L. “beat up her brother a lot” and “is always the aggressive
person,” “violent and always kicking or punching somebody.” The defense claimed that this evidence was
relevant because L. had testified that she was “unable to fight back” during
the molestations. They argued that the
evidence they sought to introduce would show that she was “quite able to fight
back” and that she was “a very physical person,” which would be “inconsistent
with” her testimony. The defense wanted
to show that L. had “the physical prowess to defend
herself . . . .”

The court
excluded evidence that L. was a “violent” “aggressor,” but it ruled admissible
testimony that L. “would win” when “wrestling” with Steven or Jeremy. The court did not exclude evidence “that she
could thwart” Jeremy or Steven. The
court also told the defense that there were “many ways” it could show that L.
had the “physical prowess to defend herself,” but the court would not permit
the defense “to do it with impermissible acts and prior violence.” The court’s ruling suggested that it was
based, at least in part, on Evidence Code section 352: “[I]f I allow
this . . . this trial will never end.” “[T]he fact that some child struck another
child some time in their life time is not really that relevant because almost
all children strike other children at some point.”

b. Analysis

Steven and
Jeremy argue on appeal that the excluded evidence was “impeachment testimony”
about L’s “trait of physical aggressiveness and violence, based on reputation
and specific incidences of conduct” that would have undermined L.’s credibility
by casting doubt both on her testimony that she did not report the molestations
due to her fear of Steven and on her testimony that she resisted but no one
ever heard or saw what was happening.

We can find
no abuse of discretion in the court’s ruling.
The juvenile court’s ruling did not preclude the defense from
introducing evidence of L.’s physical interactions with Jeremy and Steven. Its ruling was limited to her acts of
violence and aggression against others. Jeremy and Steven had already established
that L. wrestled, played football, and “roughhouse[d]” with her larger male
cousins, which established her “physical prowess.” Evidence that she had “beat up” her little
brother and had been physically violent toward some other children not
including Jeremy and Steven would have had little probative value on L.’s
credibility. She did not claim that she
was incapable of resisting but only
that her resistance had been unsuccessful.
The court did not preclude the defense from adducing evidence that L.
was able to successfully overcome Jeremy or Steven if it had such evidence, but
the defense produced no such evidence.
L.’s testimony that she resisted but no one heard or saw any of the molestations
had nothing to do with her ability to hit or punch her attackers. Nearly all of the molestations occurred when
L. and her molester were alone, and she did not claim that she called out for
help. Hence, the failure of others to
discover the molestations while they were occurring had nothing to do with L.’s
ability to physically resist. Given the very minimal probative value of
this evidence, the court was well within its discretion in deciding that its
limited relevance was substantially outweighed by the risk of undue time
consumption and confusing the issues.
The issue here, after all, was not whether L. was a violent person but
whether she was telling the truth when she testified that Jeremy and Steven had
forcibly molested her. We find no abuse
of discretion or violation of Steven’s or Jeremy’s constitutional rights in the
court’s ruling excluding this nearly irrelevant evidence.



D. Prosecutorial Misconduct

Steven and
Jeremy contend that the court’s orders must be reversed because the prosecutor
engaged in prejudicial misconduct by improperly questioning defense witnesses
and eliciting improper opinion testimony from Cruz-Foy that Steven had lied on
the witness stand.

1. Background

After L.’s
grandmother testified that she had no knowledge of the allegations against
Steven and Jeremy, the prosecutor asked her if she was aware of the pretext
call. She said no. Steven’s trial counsel’s relevance objection
was overruled. The prosecutor proceeded
to read a portion of the pretext call transcript to L.’s grandmother. He then asked her “How do you feel about
that?” She said “I feel bad.” The prosecutor asked her “what did you think
you were coming to court to talk about today?”
Steven’s trial counsel’s relevance objection was overruled. She said “I don’t know really.” The prosecutor also asked her whether she was
aware that Steven had “admitted to doing all of these things to [L.]” when he
was interviewed by the police. Steven’s
trial counsel’s “misstates the evidence” objection was sustained.

At the
beginning of the grandfather’s testimony on cross, this colloquy occurred: “Q Can
you hear me okay? [¶] A I
can’t hear that good. [¶] Q I am
going to try to speak up.” The
grandfather acknowledged that he was aware that they were in court due to L.’s
allegations of sexual assault against Steven and Jeremy. He said that “[t]he victim was Jeremy and
Steven,” and he stated that he did not believe L.’s allegations. The prosecutor asked him if the fact that
Steven had admitted “these things” during a “recorded phone call” would “change
your opinion.” He said: “No.”
The prosecutor proceeded to read portions of the pretext call transcript
to the grandfather. No objection was
interposed. After reading this section,
the prosecutor asked the grandfather if he knew “that Steven had admitted to
[L.] he had sexually assaulted her during this time?” The grandfather answered “No.” Steven’s trial counsel’s “misstating the
evidence” objection was overruled. The
prosecutor also asked the grandfather whether he knew about Steven’s admissions
to the police. He said no. When the prosecutor started to read portions
of the police interview, Jeremy’s trial counsel objected on relevance
grounds. The objection was