P. v. Rick
Filed 3/29/13 P. v. Rick CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
TED JULIUS RICK,
Defendant
and Appellant.
E054826
(Super.Ct.No. FBA1000401)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Victor R. Stull, Judge. Affirmed.
Patricia L. Brisbois, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Ted Julius Rick raped his
11-year old stepdaughter, M., and was convicted of one count of
the age of 14 years. Defendant
essentially claims on appeal that his rights to confrontation and a fair trial
under the federal Constitution were violated by the trial court refusing to
allow him to cross-examine M. regarding previously being molested by her
biological father.
I
PROCEDURAL BACKGROUND
Defendant was found guilty by a San
Bernardino County Superior Court jury of aggravated sexual assault (rape by
force or fear) upon M. when she was a child under 14 years of age and at least
7 years younger than defendant. (Pen.
Code, §§ 261, subd. (a)(2); 269, subdivision (a)(1)).
years to life.
II
FACTUAL BACKGROUND
A.
M., born in March 1999, was 12 years
old at the time of trial. On June 22, 2010, she was home in
Needles with her mother, her sister, a friend, and defendant, who was born on December 20, 1977. M. and the friend fell asleep in the living
room. Defendant was watching a movie on
the couch in the living room; M.’s sister and her mother were asleep in the
bedrooms.
M. testified at trial that defendant
woke her up to watch the movie with him.
They both sat on the couch.
During the movie, defendant asked M. for 20 hugs and 20 kisses. She gave him hugs and kisses. Some of the kisses were on the lips. When she kissed him on the lips, he put his
tongue in her mouth. M. told him that
she did not want him to put his tongue in her mouth.
the movie.
M. went to the kitchen to get a
glass of water and returned to the living room.
Defendant asked her to sit on his lap, and she complied.
way. She tried to get up off his lap,
but he held his arms around her stomach.
Defendant slid his hand underneath her nightgown (which was one piece)
and touched her breast. M. was facing
defendant on his lap straddling him.
Defendant inserted his “private
area†into her “private area.†He kept
his hands on her hips. Defendant had
moved M.’s underwear to get inside her.
She described that his “private†was “[a] little†inside her.
hands but was unsuccessful. He said
nothing to her. Defendant finally let
her go, and she ran to her room. As she
ran to her room, he told her not to tell anyone. Defendant left for work the following
morning, and M. told her mother what had happened.
M. was interviewed on June 29, 2010, at the Child
Assessment Center. The interviewer noted that children who have
been molested commonly will minimize what has happened to them. The interviewer mentioned in the interview
that she had talked to M. a year before about her biological father. M. told the interviewer, “[N]ow it’s my
stepdad.†She indicated that she was
there because her stepfather “screwed up†by molesting her.
M. explained that she and defendant
were on the couch watching a movie, and she got on his lap to kiss him good
night. She tried to kiss him on his
cheek, but he moved and kissed her on the mouth. He put his tongue in her mouth. He then put his hands under her night gown
and touched her chest. Defendant
unzipped his jean shorts. M. was facing
defendant. He put his “private part in
[hers].â€
M. tried to get away but did not
want to scream and wake up her mother.
M. tried to push him away, but he held her tight on the waist. M. put her arm against his neck. Defendant told her stop. She listened to him and drew back her arm
because she had a “bad habit†of listening to her parents. M. then went back to bed, and defendant took
a shower in order to go to work. It hurt
when he put his penis in her private area, and she did not like it. M. thought she saw “white stuff†coming out
of his penis.
title="">[5] She had seen the same thing when she had
talked to the interviewer the year before.
A pretext telephone call (which was
a way to try to get a suspect to confess or talk about the alleged crime) was
set up between defendant and M. M.
called defendant at work. She told him
that he hurt her “really bad†and that she “didn’t want that.†Defendant asked where she was, and she
responded the “library.†He then asked
if M.’s mother was there. M. told him
that she was not, and he told her he had to close the door at his work. He then told her that he was sorry. He claimed he was confused and said, “I don’t
know if you can forgive me or not.†M.
told him she could not keep it a secret.
He asked if he could tell her mother that night. M. told him that she was going to tell her
mother, and he begged her to wait until he got home.
M. then asked defendant, “[W]hat if
I’m pregnant?†Defendant responded, “I
know. That’s why I’m asking you please
let me – let me tell – let me wait till I get home tonight. Please, [M.], . . . I’m
begging you.†When M. again told him she
was going to tell her mother, he told her he did not know what was going on the
prior night, and he swore he would pack his things and leave. He promised that she would never see him
again. Defendant kept begging her not to
tell her mother until he got home.
Defendant told M. that if she told her mother, that the police would
come and arrest him. He told her he did
not want to ruin her life.
Defendant was arrested that same
day. He was briefly interviewed when he
was arrested. He was asked if he knew
why he was being arrested. He stated, “I
have an idea, but if it’s what I think it is, I’m not sure what happened if that’s
what it is.†The arresting sheriff’s
deputy asked him what he thought it was about.
Defendant responded, “Well, my little girl, my wife’s little girl said
something happened last night, and if that’s what happened, I don’t know if it
did or not, because I’ve been having trouble blacking out the last couple of
days.†Defendant thought it was due to
his blood pressure.
Defendant was interviewed again at
the sheriff’s station. Defendant stated
that he was not going to argue with M. as to what she was saying and said,
“[T]hen I did it then.†Defendant knew
that M. was 11 years old but thought of her as being 14 or 15 years old because
she was mature for her age. He again
expressed concern that he had been blacking out and not remembering
things.
Defendant first recalled that at
10:30 p.m., M. and her friend came in the living room where he was
sleeping. He put on a movie. At either 2:00 or 4:00 a.m., M. gave him a
hug and a kiss. She was wearing a nightgown. Defendant did not know what had happened
between them and wanted to talk to M. and her mother at home. Defendant was told by the interviewer that
his story was “bullshit.â€
Defendant was asked if M. should be
checked to see if she is pregnant. He
responded, “Sir, get her checked. I
don’t know. Please God – uh plea – I’m
praying. Just if – if I did, get her checked. I don’t know.
Okay? I don’t know.â€
Defendant finally admitted that M.
had been sitting on his lap and was kissing him and that he got aroused. Defendant remembered that he asked her if
this was what she wanted and why did she want it. M. responded that she did not know and
stopped kissing him. M. rubbed his penis
with her leg.
M. straddled him, and defendant put
his arms around her. Defendant asked M.
about her father and whether he had done this to her; he asked if she did it
because it felt good. Defendant told her
that they could not do it, because it was wrong. He recalled that she was rubbing against him
and that “something happened.†Defendant
blurted out, “I’ll be damned. I had sex
with her.â€
Defendant could not recall if he ejaculated
inside M. He did not think that the sex
lasted long. He did not know why he had
sex with her; it may have been because she came over to him.
B.
Defendant briefly testified to
identify the clothes that he was wearing the night of the incident.
Jeff Williams was an investigator
employed by defendant’s counsel. He
interviewed M. on January 13, 2011, at her home with her mother present. M. told him that defendant shook her up while
she was lying down in the living room and asked for kisses and hugs. She kissed him five times, and he put his
tongue in her mouth. M. claimed to have
blacked out and did not remember anything more.
She woke up the following morning in her bedroom.
Williams interviewed her again on
January 28. M. said that she had on
pajamas with tops and bottoms.
name="_ftnref7" title="">[7] M. gave defendant 15 kisses on the cheek and
then a few on the lips. She thought it
was “no big deal†to kiss him on the lips because “mom’s†and “dad’s†always
give kisses on the lips. When he put his
tongue in her mouth, she tried to push him away. Defendant asked M. if she was trying to get
away. Defendant then said to her, “. . .
I am sorry, I guess I did a wrong thing.â€
She then walked away, and either she tripped or defendant grabbed
her. He asked her not to go and pulled
her down on his lap.
M. indicated that defendant was
wearing his work pants. She told
Williams that defendant pulled down her underwear and put his “dick†inside
her.
“drowsy.†She got up and got a drink of
water.
III
RESTRICTION ON CROSS-EXAMINATION
Defendant contends that the trial
court erred by not allowing him to cross-examine M. on the previous molestation
committed by her biological father. He
insists his Sixth and Fourteenth Amendment
rights under the federal Constitution were violated by the restriction on
his cross-examination.
A.
The trial court discussed pretrial
motions that had been filed in open court after a chambers conference. It stated in general that based on the
People’s pretrial motion it would preclude the defense from asking about
matters under the Rape Shield Law. It
stated, “No reason why we should deviate from that. I’ll grant that.â€
The People presented a caveat to the
above ruling. They referred to a
statement made by defendant during his interview that he asked M. that night if
what he was doing was what her biological father had done to her. The People claimed that M. also told law
enforcement that defendant said this, which corroborated the testimony. The People stated, “I want that statement
in. I don’t think that we’re violating
the Rape Shield Law by alluding or inferring that this child has been a prior
victim of a sexual assault. It’s only
for the purpose of allowing that statement in for the purpose to corroborate
one other [sic].†The People also noted that under Evidence
Code section 782, defendant could not ask her anything in regards to the
specifics of the prior sexual incident in order to attack her credibility.
Defendant’s counsel stated that his
understanding of the Rape Shield Law was that he could not address other sexual
conduct by M. in order “to cast aspersions upon her character and the like.†Defendant’s counsel, however, noted that from
a “psychological point of view†this may be the way that her biological father
taught her to deal with male parental figures who are mad at her.
The trial court stated, “On the 782
issue, it requires a motion and an affidavit . . . . So I’ll need that.†The trial court later stated, “And also,
again, on the issue of the testimony which may be limited under Evidence Code
Section 782. If you want to pursue that
cross-examination of the victim on the issue of credibility, then I do need a
motion. I do need an affidavit.†Defendant’s counsel was given time to file
the motion.
Just prior to the trial, the trial
court inquired of defendant’s counsel if he was going to file the Evidence Code
section 782 motion, as one had not been filed.
Defendant’s counsel argued that the People were introducing the evidence
by playing the transcript of the interview, which included defendant and the
interviewing officer discussing that M. had been abused by her biological
father. Although defendant’s counsel had
not planned to introduce M.’s sexual history, it was being introduced by the
People. It opened the door, and
defendant should be able to discuss it.
Defendant’s counsel also suggested that the statements not be
introduced. Defendant’s counsel argued
that he should be able to ask if she was taught to act a certain way because of
the abuse. The trial court was not sure
how it was relevant and asked the People what they planned to introduce as to
the biological father’s molestation.
The People explained that the
defendant said during the interview that he asked M. if what he was doing was
what she had done with her biological father.
M. confirmed that defendant said this to her during the molestation. This corroborated M.’s story. The People argued that Evidence Code section
782 applied to prior acts of sexual conduct to attack credibility, and the
People did not intend to introduce any prior acts. The specific acts could not
be introduced because consent was not an issue.
Defendant’s counsel referred the
trial court to defendant’s interview. He
argued that if M. was used to initiating sexual conduct when she believed an
adult male was upset with her, the jury should be notified of why she acted
this way. Defendant’s counsel was not
seeking to admit the specific acts of molestation.
Just prior to testimony being
presented, the People acknowledged that M. had not said anything about her
biological father in her interview. The
People argued it was still admissible as a statement by defendant within the
meaning of Evidence Code section 1220.
with M.
The trial court noted Evidence Code
section 782 did not appear to apply to the People. Defendant’s counsel again argued that the
People had opened the door. He also
argued that the statement should be redacted and not brought into the case; the
probative value of the statement was greatly outweighed by the prejudice.
The People did not understand the
prejudice of the statement. They denied
that they were seeking to admit any of the prior sexual acts committed on M.
that would violate Evidence Code section 782.
The trial court found the statements about M. being molested by her
biological father admissible and that it was not unduly prejudicial.
During the interview with the
defendant that was played for the jury, one of deputies stated, “Nobody wants
to hear blackout stor[i]es. . . . I believe that little
girl, because . . . I dealt with her last time.†The deputy stated, “And I believed her then,â€
and defendant responded, “And I believe her too, sir.†Later, one of the deputies asked defendant
why he would hurt her, and defendant claimed he did not want to hurt her. The deputy responded, “You did. You’re no better than her dad.†Defendant was asked if M. touched him while
he was aroused. The deputy said, “You
gotta remember, maybe she’s got a little experience from this previous . . . past
experience she’s had. Maybe she’s
confused and thinking this is what you want.â€
One of the deputies again reiterated that M. “has experience†and that
maybe she initiated the contact.
B.
“Evidence of the sexual conduct of a
complaining witness is admissible in a prosecution for a sex-related offense only
under very strict conditions.†(
362.) This evidence may be admissible
when “offered to attack the credibility of the complaining witness†and when
presented in accordance with the procedures under Evidence Code section
782. (Ibid.)
“ . . . Evidence Code section 782 provides for a
strict procedure that includes a hearing outside of the presence of the jury
prior to the admission of evidence of the complaining witness’s sexual
conduct. [Citations.] Evidence Code section 782 is designed to
protect victims of molestation from ‘embarrassing personal disclosures’ unless
the defense is able to show in advance that the victim’s sexual conduct is
relevant to the victim’s credibility.
[Citation.] If, after review,
‘the court finds the evidence relevant and not inadmissible pursuant to
Evidence Code section 352, it may make an order stating what evidence may be
introduced and the nature of the questions permitted.’ [Citation.]â€
(People v. Bautista (2008) 163
Cal.App.4th 762, 782.)
“By narrowly exercising the
discretion conferred upon the trial court in this screening process, California
courts have not allowed the credibility exception in the rape shield statutes
to result in an undermining of the legislative intent to limit public exposure
of the victim’s prior sexual history.†(
703, 708.) “Great care must be taken to
insure that this exception to the general rule barring evidence of a
complaining witness’ prior sexual conduct, i.e., Evidence Code section 1103,
subdivision (b)(1), does not impermissibly encroach upon the rule itself and
become a ‘back door’ for admitting otherwise inadmissible evidence.†(People
v. Rioz (1984) 161 Cal.App.3d 905, 918-919.)
We review the trial court’s ruling
in denying the admission of sexual conduct for an abuse of discretion. (People
v. Chandler, supra, 56 Cal.App.4th at p. 711.)
Defendant indisputably failed to
comply with Evidence Code section 782 in the manner required by law. Although prompted by the trial court to file
such a motion so it could consider whether the evidence of the acts
constituting the prior molestation could be admitted at trial, defendant failed
to do so. Clearly the trial court
disagreed with defendant’s argument that Evidence Code section 782 was not
applicable and advised defendant to file the motion. The trial court could reasonably conclude
that defendant’s cross-examination would elicit the circumstances of the prior
molestation despite defendant’s claim that he only sought to ask her if she had
been groomed to have sex with male parental figures. Because of defendant’s failure to follow the
trial court’s order, the trial court could exclude any cross-examination on the
acts committed against M. by her biological father.
Additionally, defendant’s offer of
proof was insufficient in order for the trial court to conclude that Evidence
Code section 782 did not apply. Evidence
Code section 354 provides in pertinent:
“A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous exclusion of
evidence unless the court which passes upon the effect of the errors is of the
opinion that the error or errors complained of resulted in a
record that: [¶] (a)
The substance, purpose, and relevance of the excluded evidence was made
known to the court by questions asked, an offer of proof, or by any other means . . . .â€
Here, defendant made little or no
offer of proof of how he intended to show that M. initiated the sexual
intercourse because her biological father had taught her to deal with male
parental figures by having sex with them.
Defendant and M. never said as much in their statements. It is just as reasonable to surmise that M.’s
biological father forcibly raped or otherwise molested her without her consent
as to speculate that she had been groomed to have sexual relations with her
parental figure. Defendant could not
expect the trial court to allow him to go on a fishing expedition by
questioning M. as to whether this was true.
The trial court asked defendant to file an Evidence Code section 782
motion so that it could consider the evidence.
Because defendant failed to do so, the trial court was not in a position
to allow the cross-examination of M. in order for defendant to hope to prove
she initiated the sexual intercourse, and the trial court could reasonably be
concerned the sex acts would be disclosed.
Defendant contends that he did not
have to comply with Evidence Code section 782 because the People opened the
door to the evidence being admitted.
relevant to show how M. learned to behave with the father figures in her life,
to show that she initiated the sexual contact, and to negate the element of
force. He argues, “Under the
circumstances, this showing was more than sufficient to permit
cross-examination of [M.] on the topic of the prior molestation by her
father.†Again, defendant’s offer of
proof was lacking in that he provided nothing to the trial court to support
that M. had been groomed to have sex with male parental figures. There simply is no evidence that this was the
case and even though the People introduced that she had been previously
molested, this did not open the door for defendant to (1) ask her about the
specific sex acts unless he complied with Evidence Code section 782 or (2) ask
her if this was the way she was taught to deal with men, when there was no
offer of proof that this was the circumstance.
The trial court properly restricted defendant’s cross-examination.
Defendant’s attempts to show error
are to no avail. The People introduced
evidence from which it could be inferred M. was subjected to some type of
molestation by her biological father.
The details of that molestation were not introduced and were not before
the jury. Defendant claims he did not
seek to introduce the details but rather to question her in order to imply that
this was the way she dealt with male parental figures, thereby negating the use
of force. However, without an offer of
proof from defendant as to what occurred between M. and her biological father,
the trial court was not in a position to rule on the issue. Defendant was given an opportunity to give an
offer of proof but failed to present one.
As such, the trial court, and now this court, is left with no evidence
of the sexual molestation or whether M.’s biological father trained her to deal
with male parental figures by having sex with them. Mere speculation does not amount to error.
Defendant claims for the first time
on appeal that his federal Constitutional rights to present a defense and to
confront witnesses was violated by the restriction on his cross-examination of
M. Defendant failed to object on these
grounds in the lower court. The failure
to object waives the argument on appeal.
(People v. Sanders (1995) 11
Cal.4th 475, 510, fn. 3.)
Even if we were to consider his
claim, his federal constitutional rights were not violated. “[N]ot every restriction on a defendant’s
desired method of cross-examination is a constitutional violation. Within the confines of the confrontation
clause, the trial court retains wide latitude in restricting cross-examination
that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance. [Citations.] California law is in accord. [Citation.]
Thus, unless the defendant can show that the prohibited
cross-examination would have produced ‘a significantly different impression of
[the witnesses’] credibility’ [citation], the trial court’s exercise of its
discretion in this regard does not violate the Sixth Amendment.†(People
v. Frye (1998) 18 Cal.4th 894, 946, disapproved of on other grounds in
421, fn. 22.)
Defendant was given ample
opportunity to attack M.’s credibility.
He presented the testimony of Williams that the first time he
interviewed M., she claimed that she blacked out and did not recall what had
happened with defendant. Williams later
interviewed M. again, and she remembered the events of that night. However, in conflict with her trial testimony
and her pretrial interview, she denied that defendant ever touched her breasts
and that she was wearing a one-piece nightgown.
M. could not recall if defendant grabbed her or if she tripped. She admitted that she kissed defendant on the
lips. M. at one point said she saw
“white stuff†coming out of defendant’s penis, but later denied she saw his
penis at all.
Had the jury been advised (which is
pure speculation on defendant’s part) that M. was groomed to have sex with male
parental figures, it would not have given the jury a significantly different
impression of her credibility.
Finally, even if we were to assume
that through cross-examination of M., defendant could establish that she dealt
with male parental figures by complying with their demands to engage in sexual
intercourse, the exclusion of such evidence was harmless under any standard. Defendant claims that “[t]o the extent
evidence relating to the prior molestation would have tended to show [M.]
engaged in similar acts of sexual conduct with her biological father for a
lengthy period of time, this would have been highly relevant to show she may
have willingly engaged in the act of sexual intercourse with [defendant].â€
“Absent fundamental unfairness,
state law error in admitting evidence is subject to the traditional
The reviewing court must ask whether it is reasonably probable the
verdict would been more favorable to the defendant absent the error. [Citations.]â€
(People v. Partida (2005) 37
Cal.4th 428, 439.) Defendant claims that
he is entitled to the more stringent beyond-a-reasonable-doubt standard of review
under Chapman v. California (1967)
386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].
However, as set forth, ante,
there was no constitutional violation.
Defendant was convicted of violating
section 269, subdivision (a)(1) and 261, subdivision (a)(2). “The offense[] of aggravated sexual assault .
. . on a child under the age of 14 years require[s] proof that ‘force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person’ was used.
[Citations.] [¶] ‘Force’ as used in this context means
‘physical force substantially different from or substantially greater than that
necessary to accomplish the lewd act itself.’
[Citation.] A number of cases
have held that if the defendant grabs or holds a victim who is trying to pull
away, that is the use of physical force above and beyond that needed to
accomplish the act. [Citations.]†(People
v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on other grounds in
248, fn. 12.)
First, there is “the long-standing
presumption that children under age 14 cannot
give legal consent to sexual activity.â€
(People v. Soto,
11.) And, when the law “‘implies
incapacity to give consent, . . . this implication is conclusive. In such case the
female is to be regarded as resisting, no matter what the actual state of her
mind may be at the time. The law resists
for her.’ [Citation.]†(Id.
at p. 248, fn. omitted.) Even if M.
consented to the sexual intercourse, such consent was not relevant in this
case. The only possible relevance of the
evidence was to the use of force.
Here, the evidence that was
presented showed that defendant used force to accomplish the rape of M. M. testified that defendant put his hands on
her hips or around her stomach. M.
stated that she put her arm up on his chest to get away from him, but he
convinced her to stop, relying upon his position of power over her. In addition, during the pretext telephone
call, M. told defendant that he hurt her and he did not deny it. Based on the foregoing, there was ample
evidence from which the jury could conclude defendant used force against
M. Even if M. had been groomed to have
sexual intercourse with male parental figures, the evidence here established
that defendant used force in order to commit the rape in this case.
Defendant points to the fact that
the jury had questions regarding the definition of force to show reversal is
necessitated by the restriction on cross-examination. During deliberations, the jury asked for a
more detailed definition of force, asking if someone had their hands around
someone, did that constitute force. The
jury was referred back to the instruction on rape by force, fear, or
threats. The fact that defendant held M.
with his hands on her hips constituted force.
She was consistent that he held onto her. Moreover, the other evidence supported force,
including that she told him he hurt her, which he did not deny.
Overwhelming evidence showed that
defendant had committed the forcible rape of M.
Defendant has failed to show the trial court erred or that his federal
constitutional rights were violated.
IV
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Defendant claims that to the extent
the People argue that he waived his claim that his federal constitutional
rights were violated by the limitation on his cross-examination of M., and that
his counsel failed to file a motion pursuant to Evidence Code section 782, he
received ineffective assistance of counsel.
“Under both the Sixth Amendment to
the United States Constitution and article I, section 15, of the California
Constitution, a criminal defendant has the right to the assistance of
counsel.†(People v. Ledesma (1987) 43 Cal.3d 171, 215.) “To establish constitutionally inadequate
representation, a defendant must demonstrate that (1) counsel’s representation
was deficient, i.e., it fell below an objective standard of reasonableness
under prevailing professional norms;
and (2) counsel’s representation subjected the defendant to prejudice, i.e.,
there is a reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the defendant. [Citations.]
‘When a defendant on appeal makes a claim that his counsel was
ineffective, the appellate court must consider whether the record contains any
explanation for the challenged aspects of representation provided by
counsel. “If the record sheds no light
on why counsel acted or failed to act in the manner challenged, ‘unless counsel
was asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,’ [citation], the contention must be
rejected.â€â€™ [Citations.]†(People
v. Samayoa (1997) 15 Cal.4th 795, 845.)
The record does not disclose why
defendant’s trial counsel refused to file a motion pursuant to Evidence Code
section 782. The trial court did not
state it would necessarily exclude the cross-examination; it wanted an offer of
proof that complied with Evidence Code section 782. Even if counsel disagreed with the ruling,
there is no explanation as to why he refused to file the motion. An equally reasonable explanation is that the
circumstances of the prior molestation did not support his theory. On this record, it is not possible to
determine the reason counsel refused to file an Evidence Code section 782
motion.
Moreover, as stated,
violation in this case. Hence, even if
defendant’s trial counsel had objected on these grounds, the results of the
case would be the same. As fully
explicated, the evidence in this case was overwhelming. Assuming that defendant’s counsel was deficient,
defendant cannot show prejudice.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
later testified that she said nothing and just gave him a “look.â€
