Petition for Writ of Certiorari — Christopher Brian Horton, Petitioner v. California

APPENDIX

TABLE OF CONTENTS

Unreported Opinion of the California Court of Appeal, Sixth Appellate District,

People v. Christopher Horton, Case No. H042319 (filed November 8, 2017) . . . . . A001

Denial of Petition for Review, California Supreme Court,

People v. Christopher Horton, Case No. S245987 (filed February 21, 2018) . . . . . . A060

APPENDIX A

A001

FILED 11/8/17

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

H042319

(Monterey County

Super. Ct. No. SS112399A)

Plaintiff and Respondent,

v.

CHRISTOPHER BRIAN HORTON,

Defendant and Appellant.

I.

INTRODUCTION

Defendant Christopher Brian Horton was charged in a five-count amended

information with infliction of corporal injury upon a spouse occurring on November 21,

2011 (Pen. Code, § 273.5; count 1), spousal rape occurring on November 22, 2011 (Pen.

Code, § 262, subd. (a)(1)); count 2), infliction of corporal injury upon a spouse occurring on

December 23, 2011 (Pen. Code, § 273.5; count 3), forcible oral copulation spousal rape

occurring on December 23, 2011 (Pen. Code, § 288A, subd. (c)(2)(A); count 4), and assault

with intent to commit a felony occurring on December 23, 2011 (Pen. Code, § 220, subd.

(a)(1); count 5). It was alleged further in the information that defendant had suffered a prior

felony conviction for rape (Pen. Code, § 1170.12, subd. (c)(2)) and was a habitual sex

offender (Pen. Code, § 667.71). The victim of the charged offenses was defendant’s wife,

Jane Doe 1 (hereafter, Jane).

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In March 2015, a jury found defendant guilty as charged and also found true the prior

strike and habitual sex offender allegations. The court sentenced defendant to 156 years to

life in prison.

Defendant asserts six claims of error on appeal. He argues the trial court abused its

discretion by denying his pretrial motion to represent himself pursuant to Faretta v.

California (1975) 422 U.S. 806 (Faretta). Second, he contends the court erred in admitting

evidence of prior sex offenses pursuant to Evidence Code section 1108. 1 The challenged

evidence involved (1) an uncharged rape involving Jane Doe 2 occurring in Carmel in

April 1993, and (2) a 1996 rape and other sex crimes involving Jane Doe 3 of which

defendant was convicted. Third, defendant argues that admission of evidence that defendant

harassed Doe 2, resulting in her obtaining a restraining order (including the introduction of a

trial exhibit evidencing the restraining order), was error. He asserts alternatively that,

assuming the issue was not preserved for appeal, his attorney’s failure to object to the

harassment/restraining order evidence (including the trial exhibit) constituted ineffective

assistance of counsel. Fourth, defendant asserts that the trial court erred in admitting

evidence concerning certain statements made by Jane to her friend and to a police officer.

Fifth, he claims the court committed error by limiting the cross-examination of Jane. Sixth,

defendant requests that we review Jane’s sealed personnel records and a police report

concerning an unrelated crime reported by Jane to determine whether the court erred in

concluding that the records contained no discoverable information requiring their disclosure

to defendant.

We conclude that the trial court did not err (1) in denying defendant’s Faretta

motion; (2) in admitting prior sex crimes evidence pursuant to section 1108; (3) in admitting

the extrajudicial statements of Jane to the police officer; (4) in limiting the crossexamination of Jane; and (5) in concluding that Jane’s personnel records and the police

1

Further statutory references are to the Evidence Code unless otherwise stated.

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report were not discoverable. We conclude further that defendant forfeited his appellate

challenge to the admission of the harassment/restraining order evidence, and we reject his

alternative claim of ineffective assistance of counsel. 2 And while we conclude the court

erred in admitting certain statements made by Jane to her friend, the error was harmless.

Accordingly, we affirm the judgment of the trial court.

II.

A.

FACTS 3

Prosecution Evidence

1.

Charged Offenses (November 21-22, December 23, 2011)

a.

Testimony of Jane Doe 1 4

Jane met defendant at the end of August 2010 when he approached her inside a

Walmart store. After speaking over the telephone a number of times in 2010, Jane invited

him to dinner at her apartment. That evening, when defendant disclosed that he was

married, she told him she didn’t want to see him anymore.

Jane next saw defendant in March 2011 5 when he stopped by her apartment. He told

her that his wife had passed away. Thereafter, they began a relationship. In May, after

defendant told Jane that he was lonely and that his daughters and mother-in-law had

abandoned him, she allowed him to move in with her. They began having a sexual

Defendant filed a separate habeas corpus petition alleging that he received

ineffective assistance of counsel in that counsel failed to adequately cross-examine a

prosecution witness, and failed to object to inadmissible evidence concerning defendant’s

harassment of Jane Doe 2 as well as a trial exhibit involving a restraining order obtained by

Jane Doe 2 related to the harassment. (In re Christopher Horton, H044724.) We ordered

that the petition be considered in conjunction with this appeal. We have considered the

merits of this petition and by separate order filed this date, deny the petition.

3 We resolve factual conflicts in support of the verdict. (People v. Holt (1997)

15 Cal.4th 619, 667-668.)

4 Because her first language was Spanish, Jane testified through a certified Spanish

interpreter.

5 All dates hereafter in the discussion of facts are 2011 unless otherwise stated.

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relationship afterwards. In July, after they moved to Salinas, defendant asked Jane to marry

him, but she declined, saying it was too soon after his wife’s death.

Later that year, on November 11, Jane and defendant married. They had a reception

on November 19. After the reception, defendant told Jane that he had cancelled their

honeymoon, and they went home. Jane decided that, with the trip cancelled, they would

have their honeymoon at home. She “put on some special clothing” and went into the

bedroom. Defendant laughed at her and asked if she was crazy. After she said she wanted

to make love, defendant responded that “it would only happen when he wanted to, not

whenever.” In the following days, defendant’s demeanor changed. He was angry all the

time and would frequently curse, using words like “fuckin’ bitches . . . and putas [Spanish

for whores],” words he had not used before they had married.

On the evening of November 21, Jane was in the bedroom on the phone with her

daughter. Defendant came in, asked with whom she was speaking, and then ordered Jane to

hang up and not to talk to anyone on the phone. Jane continued the call. She then went into

the kitchen for a glass of milk. Defendant came in from the living room and told her she

couldn’t get anything and ordered her to put down the milk. As Jane returned to the

bedroom, defendant struck her with “a very strong blow to the head,” and she dropped the

phone. She felt dizzy and “[e]verything went dark.” Defendant yelled at her, called her

puta and said, “ ‘Why didn’t you listen to me? I told you to hang up.’ ” After Jane asked

why he had struck her, defendant kept yelling at her and told her she had to do as he

ordered. He shook her by the shoulder. After he stopped, Jane picked up the phone. In

response to her daughter asking what was wrong, Jane said she had just dropped the phone;

she was embarrassed to tell her daughter that defendant had struck her. After telling

defendant not to hit her, he said, “ ‘Shut up, whore, puta. You have to do what I say.’ ” She

sustained a bump on the back of her head as a result of defendant’s striking her. It persisted

for approximately one week.

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The next evening (November 22), Jane was lying down in the bedroom resting

because her head hurt. Defendant came in, grapped his penis, and said, “ ‘That’s what you

wanted.’ ” She told him she didn’t feel well and that her head hurt. Defendant grabbed her

by the hair, got on the bed, spread her legs, and orally copulated and digitally penetrated her.

Jane, who was crying, told him to stop, that he was hurting her, and her head hurt from him

hitting her the previous day. Defendant turned her, insulted her, called her a whore, and put

his penis in her vagina, pulling her hair and slapping her in the face while doing so. He also

grabbed her by the neck and spat on her. She repeatedly asked him to stop and told him he

was hurting her. He stopped after ejaculating inside of her.

On another occasion, defendant took Jane’s phone and her “papers” away so that she

was unable to communicate with her family in Mexico. She saw her friend, Jasmin, on the

street as Jane was walking to buy a phone after defendant had taken her phone away from

her. Defendant also forbade Jane from going to school and took her car keys. Defendant

instructed her to stay inside the house and threatened to report her to immigration. She went

to school anyway on foot.

On the morning of December 23, as they were getting ready to clean homes, 6

defendant was very upset by someone having left a drawing of him outside the door. He

swore and said, “ ‘All women are whores.’ ” After Jane asked him to stop, he said, “ ‘You,

too, bitch. Shut up.’ ” When they returned home that evening, defendant was still upset and

was yelling. At approximately 9:00 p.m., while Jane was in the bedroom on the phone with

her daughter, defendant came in from the living room and asked with whom she was

speaking. After she told him, defendant got on the bed and began orally copulating her.

After she moved him away and told him to stop because she was talking to her daughter,

defendant said, “ ‘Tell your daughter I licked your pussy.’ ” Jane told her daughter she

Defendant had a business cleaning homes, and Jane, in addition to working another

job and going to school, helped him on weekends.

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would call her back and hung up. She then said, “ ‘Brian, don’t treat me this way.’ ”

Defendant responded, “ ‘Shut up, whore, bitch. I will do whatever I want to do.’ ”

Approximately one hour later, Jane was talking on the phone with Jasmin.

Defendant came into the bedroom and again asked her with whom she was speaking. After

she told him, defendant got on the bed and spread Jane’s legs. She told him to stop, but he

did not, and he orally copulated her. She again asked him to stop. Defendant instead made

“really ugly sounds” and said, “ ‘Tell Jasmin that I’m licking your pussy.’ ” Jasmin asked

Jane what was going on, and she responded that she would call her back. After she hung up,

defendant kept calling Jane a whore, and said, “ ‘I want to fuck, bitch.’ ” Defendant

laughed and left the room.

Jane then lay on the bed and chatted on Facebook. Defendant came back and got into

bed. Jane showed him a picture of his daughter she had found. (She had conducted the

search because defendant had told her previously that “he wanted to look for his daughters,

because they didn’t want to see him.”) Defendant became very upset and started yelling at

her, again calling her a whore. He got out of bed, grabbed Jane by the neck, raised his hand

to hit her, and called her a whore. He then pulled her by the arm out of bed and started

shaking her. He pushed her into the living room.

Jane watched television (“the Animal Planet channel”) in the living room. After a

while, defendant came out of the bedroom, threw a Bible at her, and told her, “ ‘Whore,

read.’ ” She returned it to her bedside table and asked defendant not to throw it. In a later

encounter, defendant came back into the living room, pulled on his penis, and told Jane, “

‘This is what you wanted.’ ” Jane asked him not to bother her and said she wanted to rest in

the living room. Defendant pulled Jane hard towards him, took off her panties, and again

called her a whore and a bitch. He began orally copulating her; she told him to stop, tried to

close her legs, and tried to push him away. He used more force to open her legs again twice

more. Because he refused to stop, Jane kicked defendant in the stomach, and he fell back on

the floor. He then got up and grabbed Jane by the hair and hit her in the face. She asked

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him to stop. He spat in her face and tried to force her to orally copulate him. She turned her

face and told him to stop. Defendant threw Jane on the floor and continued hitting her in the

face and stomach, again calling her a bitch and a whore. Jane struck him in the groin, which

caused him to stop momentarily. Jane reached for her phone and tried to get up. Defendant

grabbed her hand. Jane said she wanted to go into the bedroom to rest; defendant said,

“ ‘No, bitch. You’re going to call the police.’ ” Jane went into the bathroom, locked the

door, and dialed 911. Defendant knocked on the door and asked her to open it; she refused.

He begged her not to call the police.

Jane told the 911 operator that her husband had struck her in the face and she felt

embarrassed. After a Spanish interpreter was brought into the conversation, Jane repeated

that her husband had struck her in the face, and that he had grabbed her by the neck and

pulled her hair. She said that “[he] wanted to abuse with me. [sic].” 7

Two or three police officers responded to the apartment. After being interviewed by

them, Jane went to Natividad Medical Center (Natividad). She had significant pain in her

left eye that was very light-sensitive. Both sides of her face were swollen, and she had pain

in her stomach. She went for a follow-up visit because of her injured eye.

b.

Officer Candi Swinscoe

Salinas Police Officer Candi Swinscoe responded to the scene on December 23. She

interviewed Jane through a Spanish-speaking officer. During the interview, Jane said that

the first incident occurred that night in the bedroom when she showed defendant

photographs from Facebook of his late wife’s children. Defendant became very angry and

pushed her out into the living room. Jane said that defendant went back to the bedroom, and

Officer Jorge Ramirez—who is fluent in Spanish and a certified bilingual

investigator—testified that he had reviewed the 911 tape. When Jane said, as translated into

English, “[defendant] wanted to abuse with me” she had used the words in Spanish, “abuser

de mi, [or] abuse of me.” Officer Ramirez testified that when the word “abuser” is used, “in

general terms, when in the Spanish language we talk of something being abused, we’re

generally talking about sexual abuse.”

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she went back to looking at Facebook on her laptop and turned on the television to “[a]n

adult channel.” Officer Swinscoe testified further that defendant went into the living room

and threw a Bible at her; she took it back into the bedroom and told defendant never to

throw it again. Jane said that a short time later, defendant returned to the living room,

demanding sex. He removed Jane’s underwear, orally copulated her, and digitally

penetrated her as she kept telling him not to. Jane reported to the officer that after she

pushed him away, he grabbed her hair, pulled her off the couch onto the floor, and slapped

her across the face. After Jane punched him in the groin, she got the telephone and called

911. Officer Swinscoe asked Jane if there were any prior incidents. Jane responded that

there were two instances in which defendant had struck her in the back of the head; she did

not mention any prior sexual assaults.

Officer Swinscoe observed that both of Jane’s cheeks were red and slightly swollen

and one of her fingers was bleeding. The officer later observed that there was slight

swelling to Jane’s inner thigh. Officer Swinscoe testified that Jane did not appear to have

been intoxicated, although she told the officer she had drunk between one glass and two

glasses of wine.

c.

Testimony of Jasmin Deanda

Jasmin Deanda (Jasmin) is Jane’s friend. They met at Hartnell Junior College, where

they were both students. When she first met defendant (before Jane and he had married),

defendant told Jasmin that he did not like friends of his wife or girlfriend receiving visitors

at his home or her receiving phone calls from them. On the day that Jasmin met him, she

was invited to go shopping with them to Gilroy. On the way there, defendant made a

comment that Jasmin felt was “out of place . . . and inappropriate”—that “he had a fantasy

that he wanted to be with two women at the same time.”

After defendant and Jane married, Jasmin saw less of Jane. On one occasion while

she was driving, Jasmin saw Jane on the sidewalk; she was walking, crying and dressed

unusually in pajama pants and a long coat. Jasmin transported Jane so that she could pay

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her phone bill, because defendant had taken away her other phone. Jane told Jasmin that she

was crying because she was having problems in her marriage; she said defendant became

aggressive when Jane did not do as he said and that there had been physical contact.

On another occasion, Jasmin called Jane about a homework assignment. Jane said

that she couldn’t talk, saying “it in a desperate manner.” Jasmin testified that defendant

“was trying to perform oral sex on [Jane] and . . . he wanted her to tell [Jasmin] what he was

doing to her.”

On December 23, Jane called Jasmin and asked her to take her to the hospital. Jane

was very sad and was crying, and she said she was in pain. Jasmin observed that one of

Jasmin’s eyes was very swollen.

d.

Officer Jorge Ramirez

Jorge Ramirez, a peace officer employed as an investigator with the Monterey

County District Attorney’s Office, interviewed Jane for approximately ten minutes on the

morning of January 12, 2012, and he confirmed her willingness to testify at the preliminary

hearing. Jane testified that afternoon. Officer Ramirez met briefly with Jane beforehand;

she was visibly upset because someone had trespassed in her apartment over the noon hour.

She reported the trespass to Officer Ramirez and the Salinas Police Department. From his

investigation into the trespass, Officer Ramirez determined that the perpetrator was someone

who knew defendant.

Officer Ramirez met twice with Jane five days later. The initial purpose of meeting

with her was the further investigation of the trespass at her home. In the second meeting,

Jane brought Officer Ramirez some documents relating to her sexual assault case, namely,

photographs she had taken of herself, discharge papers from Natividad, and a drawing that

had been placed on her front door on December 23 that had enraged defendant. Jane

disclosed to Officer Ramirez additional details concerning the sexual assault than she had

not previously given him. He said that, in his experience, this circumstance was common in

sexual assault cases. Jane talked about the drawing; the conversation she was having with

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her daughter when defendant orally copulated her; the conversation she was having with her

friend when defendant orally copulated her; and about defendant attempting to force her to

orally copulate him on December 23 while in the living room. Jane was upset in recounting

the incidents, was ashamed, and was vehement that she did not want her daughter contacted.

On cross-examination, Officer Ramirez testified that Jane had initially told him—and

had similarly testified at the preliminary hearing—that defendant had “ ‘[n]ever’ ” abused

her prior to the December 23 incidents. Officer Ramirez also testified on cross-examination

that when he interviewed Jane in August 2012, she told him that defendant had penetrated

her with his penis on December 23.

e.

Testimony of Officer Daniel Garcia

On January 12, 2012, Salinas Police Officer Daniel Garcia responded to a report of

trespass by Jane at her apartment. When he met with Jane, “she was crying . . . [and] was

scared.” She told Officer Garcia that she was concerned about testifying in court later that

day. According to Officer Garcia, “She said she felt pressured. She was scared to testify in

court and tell the truth. If she told the truth, that something was going to happen to her.”

f.

Testimony of Karen Price

Karen Price, a physician’s assistant at Natividad, treated Jane on December 23. She

complained of pain in her head, left side of her jaw, right shoulder, legs, and abdomen. Jane

was diagnosed as having multiple contusions and tenderness in her upper left quadrant

(below the left side of the ribcage). Price did not note any injury to Jane’s left eye. Price

was not told that Jane had been sexually assaulted.

g.

Testimony of Dr. Jeffrey Bass

Jeffrey Bass is an emergency room physician performing all of his clinical work at

Natividad. He treated Jane on December 25, two days after her initial visit to the hospital.

She was complaining of pain in her left eye, stating that light would cause her pain and she

had some blurry vision in the eye. Jane told Dr. Bass that the eye had been injured in a

domestic violence incident, that “she was punched in the eye.” Dr. Bass found Jane’s eye to

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be red and inflamed; shining light on her left eye caused it to hurt more. He diagnosed her

as having traumatic iritis of the left eye. Iritis is the inflammation of the iris. One cause of

iritis is trauma, including the patient having been struck by a blow. The condition is

treated—and Jane was so treated—with eyedrops for dilation to neutralize the pain and antiinflammatory medicine to prevent the formation of scar tissue; the formation of scar tissue

to the iris may result in significant vision loss.

h.

Testimony of Deborah Jacroux

Deborah Jacroux is a licensed marriage and family therapist specializing in

counseling domestic violence victims. She testified that domestic violence may include

emotional abuse, physical abuse, financial abuse, and sexual abuse. The cycle of violence

found in domestic violence cases “is a wheel of power and control and it’s an ongoing cycle

that includes intimidation, isolation, certain acts of violence, verbal intimidation and can

also include physical violence and sexual violence.” The dynamic most typically begins

with verbal and emotional abuse that escalates into physical and sexual abuse. Jacroux

testified that isolation can be a component of domestic violence and may consist of the

perpetrator limiting the partner’s contacts with family and friends—both direct contacts and

through electronic means such as email and social media—thereby eliminating the outside

support of the partner. It is common for the victim of domestic violence not to report the

abuse for various reasons, such as fear of reprisal, guilt, shame, and internal conflict within

the victim.

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2.

Uncharged Offenses

a.

Testimony of Jane Doe 2 (April 8, 1993) 8

Jane Doe 2 (Doe 2) met defendant on Carmel Beach in December 1992. Doe 2 was

visiting the area for an undetermined period of time and had leased property in Carmel.

They began a platonic friendship; over the course of several months, defendant made

“constant attempts to make the relationship more than a friendship.” But she always told

him she was not interested in a romantic relationship. Defendant’s overtures were both

verbal and physical (including touching her breasts outside of her clothing several times).

When Doe 2 asked defendant to stop, he complied. He came by her house many times,

often unannounced and uninvited. (He had deduced where she lived by her general

description of the location; her landlord was his client and he had cleaned the house.)

On the evening of April 8, 1993, Doe 2 invited defendant to her house for dinner.

She made dinner for him, and she had three to four glasses of wine over the course of the

evening. Defendant, as he had done in the past, tried to draw Doe 2 out to discuss her past

relationships and sexual experiences, which made her uncomfortable. He groped her by

touching her breasts, and she told him again she was not interested in a physical

relationship. Later in the evening, defendant said he was tired and asked if he could lie

down for a while; she agreed, telling him that there would be no “sexual activity

whatsoever.” He went into the bedroom to lie down. After some time passed, Doe 2 went

to lie down. She thought defendant was asleep when she got into bed to go to sleep, having

removed her pants, but not her top or underwear. Defendant then began groping Doe 2’s

breasts. She repeatedly said “No,” but he jumped on top of her. He pinned her down with

his arms and body. He was able to take off Doe 2’s underwear and his underwear, and he

Because Jane Doe 2 lived out of state and was terminally ill, the court determined

that she was unavailable as a witness and it ordered her conditional examination pursuant to

section 240. Her testimony was preserved 10 months before trial, and her videotaped

testimony was played for the jury.

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used his legs to open her legs. Defendant penetrated her vagina with his penis until he

ejaculated. Doe 2 did nothing to encourage his sexual advances.

Afterwards, Doe 2 went into the living room to sleep. She stayed there until

defendant left sometime the next morning. Doe 2 testified that she had been naïve in

permitting defendant to sleep at her house. She stated that she had many male friends, had

grown up with three brothers and many cousins, and that it was not unusual to sleep in the

same bed with them. She testified further that she had an agreement with defendant that he

wouldn’t pursue her physically, and she “wouldn’t have allowed [him to sleep at her home]

if he hadn’t absolutely agreed.” Doe 2 testified that she did not call the police after

defendant raped her because she was traumatized and ashamed, and she “wanted the

situation to go away.” She asked herself, “ ‘What did I do to cause this?’ ”

Defendant called her shortly after the incident, and she told him that she was very

angry about what he had done. He repeatedly called her, but she didn’t know how to handle

the situation and did not want to make the problem worse. After an incident at a bank in

which she became very afraid because he had displayed extreme anger, defendant’s

telephone calls to her became abusive. She told him not to call again, but he persisted with

abusive calls. Doe 2 went to the Carmel Police Department for assistance. After she moved

to a different rental property in Carmel of which defendant was unaware, his phone calls

stopped. But after Doe 2 moved again to Monterey and obtained a listed telephone number,

defendant resumed phoning her. Doe 2 hired an attorney, who obtained a restraining order

to prevent defendant from contacting her further. Phone calls from defendant increased, and

Doe 2 ultimately obtained, through her attorney, an order of contempt.

b.

Testimony of Jane Doe 3 (1996)

In 1996, Jane Doe 3 (Doe 3) was living with her nine children in Salinas. While she

was walking to the market in the middle of the day, a man (defendant) called out to her.

Since he spoke in English, and Doe 3 spoke little English, she did not understand him very

well. With some translation assistance from three passers-by, Doe 3 understood that

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defendant said he was looking for some help to clean houses that day. Doe 3 badly needed

work at the time. Defendant followed her in his car while Doe 3 drove home to change to

prepare for work. He then drove Doe 3 in his van to the supposed job site. After stops at a

house in Seaside and at a restaurant where defendant bought her lunch, he took Doe 3 to a

house near Monterey that seemed old or abandoned.

After defendant directed her inside the house, he closed and locked the door with a

key and “threw [Doe 3] towards the sofa with such force and anger.” He chased her around

the room and tried to undress her. She asked him to let her go, but he had the key to the

locked room. After Doe 3 tired from struggling with him, he took her into a bedroom and

again tried to undress her. He forced her to orally copulate him. He then undressed her and

spread her legs. He attempted to orally copulate her, but she prevented him from doing so.

He digitally penetrated her, and penetrated her vagina with his penis. Afterwards, he

instructed her to get in his van, took her to a bus stop, gave her $3 and left her there.

Doe 3 did not initially tell anyone what had happened to her because she was

ashamed and thought no one would believe her. She later told her son, and with his help,

she contacted the police and ultimately testified in court against defendant. Defendant was

convicted of six sex offenses related to his assault upon Doe 3.

B.

Defendant’s Testimony

1.

Charged Offenses

Defendant testified that he has ulcerative colitis. On his wedding night, he was in

bed sick and told Jane to wait until he felt better to have sex. He denied that he ever

(1) withheld keys from Jane, (2) prevented her from leaving the house, (3) prevented her

from going to school, (4) attempted to keep her from having a phone, (5) forcefully inserted

his penis in her vagina at any time, (5) forcefully placed his mouth on her vagina at any

time.

He recalled an incident on November 21 when they were in the kitchen together and

he was preparing dinner. Jane was on the phone and bumped into him. He playfully tapped

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her on the head. He did not strike her with force. Defendant denied raping Jane on

November 22 or forcing sex on her in any way.

On December 23, he was feeling extremely ill and had been “continually bleeding.”

He denied having raped Jane. He also denied having had forcible oral sex with her on that

day, testifying he had no sex with her at all that day. He denied further that he heard Jane

talking on the phone with either her daughter or her friend Jasmin any time while they were

home that day.

That evening, after arriving home from a doctor’s visit to address his colitis, he tried

unsuccessfully to get Jane to come into the living room to watch a Christmas special.

Instead, she stayed in the bedroom with her phone and watched pornography on a laptop

computer. Later, defendant went to bed, but she was still watching pornography on her

laptop. While in bed, Jane showed him a photograph on Facebook of defendant’s deceased

wife and their daughter and made a disrespectful comment. He asked her not to be

disrespectful of his late wife or their daughters. Defendant kept looking at her laptop,

despite his asking her to go in the living room. He then got up, grabbed a glass of wine Jane

had been drinking, and poured it down the kitchen sink. (Defendant testified that Jane

consumed approximately one and one-half bottles of wine that evening.) Eventually, Jane

went out to the living room after defendant pulled back the covers, said he was sick, and

again asked her to leave the bedroom. He did not push her out of the room.

After he had been asleep for a short time, defendant was awakened by moaning from

the living room. He went into the living room and saw Jane on the phone, watching an adult

program and masturbating. Defendant went into the bedroom to retrieve the Bible, and he

tossed it to her, saying, “ ‘This is what you need to be looking at the night before

Christmas.’ ” Jane stood up and said, “ ‘Watch it, Brian. Let me remind you . . . . Watch

what you say, what you do.’ ” Defendant testified that “[s]he’d always told me she could

put me in jail and I would never get out.’ ” Defendant returned to the bedroom.

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He was again awakened shortly afterward by the same noises. He returned to the

living room and turned off the television. He sat down near Jane on a sectional couch and

asked her why she wasn’t happy with him. She did not respond. He then tried to hold her

and comfort her. Then the Christmas tree lights, which were on a timer, went off and Jane

remarked, “ ‘Maybe Jesus [defendant’s late wife] is here with us.’ ” He responded, “ ‘You

ungrateful bitch. How dare you sit there and disrespect my wife. My daughters. My wife.

Me.’ ” He told Jane, “ ‘You know what, you’re not happy with me. Tomorrow I go find

Anna. That’s who I should have married.’ ” She responded by calling defendant a

“ ‘motherfucker,’ ” spitting on him, and throwing a small statue at him, striking him on the

shoulder. She also threw two remote controls, hitting him on the head. Jane continued to

call him names and kicked him. He slapped her once on the left cheek with the palm of his

hand, doing so forcefully enough to redden it. They fell between a coffee table and sofa

during their struggle. After Jane said she was leaving, defendant responded, “ ‘You’re not

going anywhere. You’ve been drinking.’ ” She insisted she was leaving. Jane reached for

her phone and he tried to remove it from her. He eventually let her have it; she said she

would call Jasmin, and he told her she could call anyone but she was not driving.

Jane went into the bathroom and called 911. Defendant also called 911. After the

police arrived, defendant told Officer Swinscoe that he and his wife both had fallen, and that

Jane had struck her face on a table. He admitted that he had falsely denied having struck

Jane when he was interviewed by the police. He explained that he was fearful that he would

be arrested because he is a convicted felon.

2.

Uncharged Offenses

Examination of defendant by his counsel concerning Doe 2 was cursory and broad,

and therefore defendant’s answers were somewhat ambiguous. Defendant testified that he

had dated Doe 2; in very general terms, he denied the allegations she made in her testimony.

Defendant responded in the negative to the question, “[I]s what [Doe 2] said happened, did

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that happen?” He thereafter answered, “Yes,” in response to the question by his counsel,

“But you’re adamant that what [Doe 2] said happened did not happen?”

Defendant’s testimony on direct examination concerning Doe 3 was similarly brief.

Defendant’s response to his counsel’s question as to whether he admitted raping Doe 3 was:

“I admit that I placed Jane Doe [3] in a position that she should not have been in. I admit

that I wrongly used my business to mix with pleasure. I admit that I was a dirty adulterer.

And I admit that it was wrong what happened between [Doe 3] and I [sic], yes.”

On cross-examination on the same subject, the following exchange took place:

“Q. So you did rape Jane Doe Number [3], correct? [¶] . . . [¶] A. I was convicted of this,

yes. [¶] Q. Did you rape Jane Doe Number [3]? [¶] A. They said I did, yes. [¶] Q. Did

you rape Jane Doe Number[3]? [¶] A. What did I just say? Yes.” Defendant’s further

testimony during cross-examination, as to whether he admitted to having raped Doe 3 was

similarly equivocal: “Q. Further in the investigation you told [the police] it [sex with Doe

3] was consensual; correct? [¶] A. Yes. [¶] Q. And now you’re telling us that you raped

her? [¶] A. I’m telling you I was convicted of this. [¶] Q. But did you rape her? [¶] . . .

[¶] A. What do you want from me? [¶] . . . [¶] Q. I want you to testify to what you did. [¶]

A. And I have to sit here and tell you the honest to God truth and I have to tell you that they

didn’t hear not even half of what happened with Jane Doe Number [3] and myself. [¶] . . .

[¶] Q. Did you rape Jane Doe Number [3]? [¶] A. I have to again tell you I was convicted

of this. What happened between Jane Doe Number [3] and myself was completely wrong

and that I was wrong for putting her in a position for what she was. [¶] . . . [¶] A. If that is

considered rape and I’m found guilty of it, then I guess I did. [¶] Q. You’re still not

admitting you raped her? [¶] A. Again, what do you want from me? [¶] . . . [¶] Q. You

were convicted of six felony counts; correct? [¶] A. Yes. [¶] . . . [¶] Q. And as you sit here

today, you still cannot tell us that you raped that woman; correct? [¶] A. Again, I’m going

to tell you that what I did was wrong. Very wrong. [¶] Q. When you say that, does that

mean that you had sex with that woman while you were married to Jesus? [¶] A. It means

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that. It means that I made a very improper, inappropriate, wrongful decision as a

businessman. [¶] Q. What was that improper, inappropriate, decision as a businessman?

[¶] A. To sleep with this woman. [¶] Q. To have sex with her in a home in Carmel;

correct? [¶] A. A home that my business cleaned for, yes. [¶] Q. Forcible sex; correct? [¶]

A. Is it forcible when she went to the restroom and painted her face and fixed her lipstick

and asked me where my wife was? Was that forcible? Was it force? [¶] . . . [¶] A. I don’t

know how to answer this. I’m truthfully telling you I do not know how to answer this. I’m

telling you I was convicted of this. And I’m also telling you in front of my jury that not

even half was let in of what took place with Jane Doe Number [3] and I [sic] [myself].”

III.

PROCEDURAL BACKGROUND

Defendant was charged in a five-count amended information with infliction of

corporal injury upon a spouse occurring on November 21, 2011 (Pen. Code, § 273.5;

count 1), spousal rape occurring on November 22, 2011 (Pen. Code, § 262, subd. (a)(1));

count 2), infliction of corporal injury upon a spouse occurring on December 23, 2011 (Pen.

Code, § 273.5; count 3), forcible oral copulation spousal rape occurring on December 23,

2011 (Pen. Code, § 288A, subd. (c)(2)(A); count 4), and assault with intent to commit a

felony occurring on December 23, 2011 (Pen. Code, § 220, subd. (a)(1); count 5). 9 It was

alleged further in the information that defendant had suffered a prior felony conviction for

rape (Pen. Code, § 1170.12, subd. (c)(2)) and was a habitual sex offender (Pen. Code,

§ 667.71).

The amended information traced its origin from two separate complaints. The three

crimes alleged to have occurred on December 23, 2011—that ultimately became counts 3

through 5—were initially alleged in a complaint filed (Monterey County Superior Court

case No. SS112399) on December 28, 2011. The two crimes alleged to have occurred on

November 21 and 22, 2011—that ultimately became counts 1 and 2, respectively—were

initially alleged in a complaint filed (Monterey County Superior Court case No. SS142169)

on or about August 25, 2014. The two cases, upon motion of the District Attorney, were

ordered consolidated on January 22, 2015.

9

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A jury trial commenced on March 9, 2015. On March 20, 2015, the jury found

defendant guilty of each of the five offenses alleged and found true the enhancements. On

May 5, 2015, the court sentenced defendant to prison for a term of 156 years-to-life.

Defendant filed a timely notice of appeal.

IV.

A.

DISCUSSION

Claim of Error Based upon Denial of Faretta Motion

1.

Defendant’s Motions to Discharge Counsel

Defendant’s first counsel of record after the filing of the initial complaint on

December 28, 2011, was Charles Shivers of the Monterey County Public Defender’s Office.

On February 7, 2012, based upon the declaration of conflict filed by the County Public

Defender, the office was relieved as counsel, and the court appointed Alternate Public

Defender Steven Liner as defendant’s counsel. Thereafter, over the course of approximately

three years, defendant made a total of 10 motions to discharge counsel pursuant to People v.

Marsden (1970) 2 Cal.3d 118 (Marsden): three motions involved Liner, one was brought to

discharge successor counsel Scott Erdbacher, and six were brought seeking to discharge

counsel who ultimately tried the case, Richard Rutledge.

The court appointed Rutledge as defense counsel on February 26, 2013. On

January 7, 2014, defendant made a Marsden motion to discharge Rutledge. Defendant’s

complaints against Rutledge were similar to those defendant had made in prior Marsden

motions involving prior counsel (Liner and Erdbacher). The court denied the motion.

Defendant made a second motion to discharge Rutledge, which was set for a

Marsden hearing on April 10, 2014. The record reflects that defendant withdrew that

motion on the date of the scheduled hearing.

A third Marsden motion seeking to discharge Rutledge was made by defendant on

May 8, 2014. Defendant’s complaints were ones raised at the prior Marsden hearing on

January 7, 2014, adding that Rutledge had not visited him in jail for more than four months.

Rutledge stated he had not visited defendant because at a prior hearing, defendant had

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threatened him. The court denied the Marsden motion. In public proceedings immediately

afterward, the court recited that at the conclusion of the Marsden hearing, defendant had

“turned in the Court’s presence to Mr. Rutledge and stated, ‘You wonder why you were

slashed in court.’ ” At the conclusion of the public proceedings, defendant stated, “I won’t

be here for trial.”

On May 22, 2014, immediately before Doe 2 was sworn as a witness to testify at the

conditional examination, defendant stated that he had been told that another attorney was

being appointed to represent him. The court recited its understanding to the contrary, based

upon the denial of defendant’s Marsden motion on May 8, 2014. Defendant then stated—

notwithstanding Rutledge’s appearance and participation at the conditional examination—

“At this time, I do not have an attorney representing [¶] . . . [¶] me. I made this clear at the

Marsden motion.”

Defendant made a fourth Marsden motion to discharge Rutledge on August 25, 2014.

The court denied the motion.

Defendant made a fifth Marsden motion to discharge Rutledge on January 8, 2015.

Defendant’s complaints concerning Rutledge were ones raised at the three prior Marsden

hearings, including Rutledge’s lack of visits and communication with defendant in jail, and

differences concerning trial strategy. During the hearing, defendant stated three times that

he wanted “to take [his] case [him]self” if the court did not discharge Rutledge and appoint

a new attorney. The court denied the motion. In public proceedings that immediately

followed, defendant reiterated that he wished to represent himself, and the court scheduled a

hearing on his Faretta motion (discussed, post).

A sixth Marsden motion seeking to discharge Rutledge was made by defendant on

the day of trial, March 9, 2015. The court denied the motion.

2.

Defendant’s Faretta Motion

After the court denied his fifth Marsden motion (as to attorney Rutledge) on January

8, 2015, defendant asked that the court permit him to represent himself. After advising

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defendant that he should carefully consider whether he wanted to represent himself, and

after providing him with a questionnaire and waiver advisement to review and complete, the

court scheduled a hearing on defendant’s Faretta motion for January 22, 2015. In doing so,

the court stated that it was giving defendant “two weeks to think about this.”

At the hearing on January 22, 2015, defendant presented a signed waiver form with

advisements and waiver of right to counsel. He acknowledged in the form, inter alia, that

“no continuance will be allowed without a showing of good cause, and that such request

made just before trial will most likely be denied.” Defendant, in the form and at the hearing,

stated a desire to represent himself. But he also stated at least seven times at the hearing

that he could not be ready to go to trial as a self-represented defendant by March 9, 2015.

He stated that he would need time to (1) obtain his files from Rutledge, (2) determine what

the attorney had done on his behalf, (3) meet with the investigator previously used by

Rutledge, and (4) prepare for trial based upon what he learned from the files as to

Rutledge’s efforts. Defendant also complained that he did not have adequate prescription

glasses for reading, there was no law library at his disposal in jail, and he had concerns

about receiving adequate funds for investigation.

After hearing argument, the court denied defendant’s Faretta motion. The court

stated that it would not grant defendant’s self-representation request if he would not be

ready for trial on the established March 9 trial date. The trial judge explained: “We have

had this matter set for trial for quite a significant period of time. [¶] And your request to

represent yourself at this point is one where you are saying that it would require you to

delay this trial. And that is not something that the court or the cases allow. [¶] If you are

asking for a last minute request to represent yourself, you need to be able to move forward

with the trial as it is currently set. And it’s set some six to seven weeks away . . . . [¶] If you

were ready to proceed to trial on . . . the trial date that’s set, I would be happy to go further

into your request to represent yourself.”

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The trial judge explained further to defendant: “I acknowledge and recognize that

you have a right to represent yourself. But not when that right impinges on the reasonable

progress of this case. The case has been pending for quite sometime [sic].” The court

reiterated that defendant had the constitutional right to represent himself, “[b]ut that right

has to be weighed against other . . . things that relate to the process and to the proceedings.

[¶] If you had made this motion and had stuck by this motion several months ago, prior to us

setting this trial date, we would be in a completely different situation than we are today.”

The trial judge quoted from the written waiver of counsel signed by defendant, stating, “ ‘I

understand that no continuance will be allowed without a showing of good cause.’ And

what I’m telling you is, serving as your own attorney is not good cause.” As an additional

consideration—one related to the timing of defendant’s Faretta request—the trial judge

explained: “My concern is that you are making this at a late date . . . . And honestly, my

other concern is that you are intending to use this to delay this trial unnecessarily. That you

are using this to manipulate the process of the court.” The court concluded: “So based on

that [defendant’s statement he is not prepared to proceed to trial on the date set], if you

cannot move forward at that time in representing yourself, then the court will respectfully

deny your request to represent yourself.”

3.

No Error in Denial of Faretta Motion

Defendant contends the court committed reversible error in its denial of his motion to

represent himself at trial. He argues that he made a timely, unequivocal Faretta motion in

which he knowingly and intelligently waived the right to counsel, and that the court

therefore had no discretion to deny it. He asserts that this constituted a denial of his Sixth

Amendment right to present his own defense and the error is reversible per se.

a.

Applicable Law

In Faretta, supra, 422 U.S. at page 821, the United States Supreme Court recognized

that “[t]he Sixth Amendment, when naturally read, . . . implies a right of selfrepresentation.” This conclusion was rooted in the notion that “[t]he right to defend

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[provided in the Sixth Amendment] is given directly to the accused; for it is he [or she] who

suffers the consequences if the defense fails.” (Id. at pp. 819-820.) The high court observed

that while it was undoubtedly true that in most instances the defendant would be better

served by having the guidance of counsel rather “than by [his or her] own unskilled efforts,”

because “[t]he defendant . . . will bear the personal consequences of a conviction . . . [he or

she] must be free personally to decide whether in his [or her] particular case counsel is to his

[or her] advantage.” (Id. at p. 834.) Thus, the high court concluded in that case because the

defendant, “weeks before trial, . . . clearly and unequivocally declared to the trial judge that

he wanted to represent himself and did not want counsel” (id. at p. 835), and the record

showed that this waiver of counsel was knowing and voluntary by a competent and literate

person, the denial of self-representation deprived him of the constitutional right to conduct

his own defense. (Id. at pp. 834-835.)

Following Faretta, our state Supreme Court has held that “in order to invoke the

constitutionally mandated unconditional right of self representation a defendant in a

criminal trial should make an unequivocal assertion of that right within a reasonable time

prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 127-128,

fn. omitted (Windham).) It held further that after the “defendant has chosen to proceed to

trial represented by counsel,” his or her self-representation motion is “addressed to the

sound discretion of the court.” (Id. at p. 128, fn. omitted.) Although the United States

Supreme Court “has never delineated when a motion may be denied as untimely” (People v.

Lynch (2010) 50 Cal.4th 693, 722 (Lynch)), 10 “eve of trial” motions have been ruled

untimely (ibid.), while motions “made long before trial [have been found] timely.

[Citation.]” (Id. at p. 723.) Where a Faretta motion is made between those “two extreme

time periods” (id. at p. 723), the trial court may assess its timeliness based upon “the totality

of the circumstances . . . [including] the time between the motion and the scheduled trial

Lynch, supra, 50 Cal.4th 693 was overruled on another point in People v.

McKinnon (2011) 52 Cal.4th 610.

10

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date . . . [as well as] such factors as whether trial counsel is ready to proceed to trial, the

number of witnesses and the reluctance or availability of crucial trial witnesses, the

complexity of the case, any ongoing pretrial proceedings, and whether the defendant had

earlier opportunities to assert his right of self-representation.” (Id. at p. 726.)

In People v. Marshall (1997) 15 Cal.4th 1 (Marshall), our Supreme Court stressed

the importance of the requirement that a defendant’s assertion of the right to selfrepresentation be unequivocal. It noted that “[s]everal lower courts have declared that a

[Faretta] motion made out of a temporary whim, or out of annoyance or frustration, is not

unequivocal—even if the defendant has said he or she seeks self-representation.

[Citations.]” (Marshall, supra, 15 Cal.4th at p. 21.) The court in Marshall concluded: “[I]n

order to protect the fundamental constitutional right to counsel, one of the trial court’s tasks

when confronted with a motion for self-representation is to determine whether the defendant

truly desires to represent himself or herself. [Citations.] The court faced with a motion for

self-representation should evaluate not only whether the defendant has stated the motion

clearly, but also the defendant’s conduct and other words. Because the court should draw

every reasonable inference against waiver of the right to counsel, the defendant’s conduct or

words reflecting ambivalence about self-representation may support the court’s decision to

deny the defendant’s motion. A motion for self-representation made in passing anger or

frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the

orderly administration of justice may be denied.” (Id. at pp. 22-23; see also People v.

Roldan (2005) 35 Cal.4th 646, 683.)

The California Supreme Court has reiterated that the constitutional right of a criminal

defendant to self-representation “is not absolute. ‘[The] government’s interest in ensuring

the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting

as his [or her] own lawyer.’ [Citation.]” (People v. Williams (2013) 58 Cal.4th 197, 253

(Williams), quoting Martinez v. Court of Appeal (2000) 528 U.S. 152, 161; see also Lynch,

supra, 50 Cal.4th at p. 721.) In addition to the fact that a Faretta motion may be denied as

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untimely or unequivocal, “[t]he court may [also] deny a request for self-representation that

is . . . intended to delay or disrupt the proceedings.” (People v. Butler (2009) 47 Cal.4th

814, 825 (Butler).)

b.

Whether there was Faretta error

As noted, the California Supreme Court has held “the right of self-representation is

not absolute” and the state’s “ ‘interest in ensuring the integrity and efficiency of the trial’ ”

may in some instances outweigh the defendant’s self-representation right. (Williams, supra,

58 Cal.4th at p. 253; see also People v. Espinosa (2016) 1 Cal.5th 61, 77, fn. 4.) Thus, a

Faretta request may be denied when it “is . . . intended to delay or disrupt the proceedings.

[Citation.]” (Butler, supra, 47 Cal.4th at p. 825; see also Lynch, supra, 50 Cal.4th at p. 722;

Marshall, supra, 15 Cal.4th at p. 27 [concluding that defendant’s statements “did not

represent an unequivocal and sincere invocation of the right of self-representation, and that

they were made for the purpose of delay rather than in a sincere effort to secure selfrepresentation.”].)

Although the Supreme Court in Butler did not specify the standard of review

involved for a trial court’s denial of a self-representation request based upon a finding it was

“intended to delay or disrupt the proceedings” (Butler, supra, 47 Cal.4th at p. 825), its use

of the phrase “may deny” is indicative that the trial court may exercise its discretion in

denying the request on this basis. (See, e.g., People v. Arjon (2004) 119 Cal.App.4th 185,

191 [use of “may” in Pen. Code, § 997 is indicative that Legislature gave trial court

discretion to hear pretrial § 995 motion after defendant has entered plea]; People v. Ciancio

(2003) 109 Cal.App.4th 175, 196 [use of “ ‘may’ ” in Welf. & Inst. Code, § 6602.5, subd.

(a) indicative that trial court has discretion to place sexually violent predator in state hospital

after probable cause determination]; Lewis v. Clarke (2003) 108 Cal.App.4th 563, 569

[“ ‘[m]ay’ ordinarily is construed as permissive, that is, a grant of discretion, while ‘shall’

ordinarily is construed as mandatory”].) And as the Supreme Court explained in People v.

Welch (1999) 20 Cal.4th 701 (Welch): “[A] trial court must undertake the task of deciding

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whether a defendant is and will remain so disruptive, obstreperous, disobedient,

disrespectful or obstructionist in his or her actions or words as to preclude the exercise of

the right to self-representation. The trial court possesses much discretion when it comes to

terminating a defendant’s right to self-representation and the exercise of that discretion ‘will

not be disturbed in the absence of a strong showing of clear abuse.’ [Citations.] We see no

reason not to use the same deference when it comes to deciding whether a defendant’s

motion for self-representation should be granted in the first instance.” (Id. at p. 735; see

also People v. Burton (1989) 48 Cal.3d 843, 853 (Burton) [court’s denial of Faretta motion

based on finding it is made for purposes of delay is “within the court’s discretion”].)

Therefore, we determine here whether the trial court abused its discretion by denying

defendant’s Faretta request based upon it having been intended to delay the proceedings.

Here, there was ample evidence from which the trial court reasonably concluded that

defendant made the Faretta request for purposes of delay and to obstruct the proceedings.

This evidence included the length of time the proceedings had been pending (over three

years), defendant’s dissatisfaction with at least three attorneys to whom the court over time

had assigned his case, his repetitive and numerous Marsden motions, his failure to make the

Faretta request at an earlier date, and his repeated statements at the Faretta hearing that he

could not be ready to represent himself at the trial scheduled six weeks hence. As noted by

the Ninth Circuit Court of Appeals, “[A] court may consider events [preceding] a motion for

self-representation to determine whether the request is made in good faith or merely for

delay. [Citation.]” (U.S. v. Flewitt (9th Cir. 1989) 874 F.2d 669, 675, citing Fritz v.

Spalding (9th Cir. 1982) 682 F.2d 782, 784.) 11

The California Supreme Court has cited U. S. v. Flewitt, supra, 874 F.2d 669 with

approval in People v. Valdez (2004) 32 Cal.4th 73, 103, and in Marshall, supra, 15 Cal.4th

at p. 22. Further, it has cited Fritz v. Spalding, supra, 682 F.2d 782 with approval in

Burton, supra, 48 Cal.3d at page 853.

11

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Defendant indicated his dissatisfaction with various attorneys assigned to represent

him, making a total of 10 Marsden motions between April 2012 and March 2015. Given

this constant dissatisfaction with appointed counsel, defendant could have made a request to

represent himself long before he did so on January 8, 2015. Moreover, the record shows

that he contemplated making a Faretta request long before he actually did so. At the

January 22, 2015 hearing on defendant’s Faretta request, defendant noted that he had

previously (in August 2014) told another attorney from the Alternate Defender’s Office that,

due to his dissatisfaction with Rutledge, he “was strongly considering taking [his] own

case.”

Moreover, defendant stated repeatedly at the January 22, 2015 Faretta hearing that

he could not be ready for trial on March 9, 2015. The court asked defendant several times

concerning his trial readiness and reiterated that if his Faretta request was tied to the

expectation of a trial continuance, the request would be denied. And, although defendant

was given ample opportunity at the hearing, he failed to give any indication as to when, if

not on March 9, 2015, he would in fact be ready for trial as a self-represented defendant.

(Cf. People v. Ruiz (1983) 142 Cal.App.3d 780, 787-792 [upholding trial court’s denial of

Faretta request made six days before trial where request was necessarily conditioned on

trial continuance].)

In support of his claim of error, defendant relies on People v. Miller (2007)

153 Cal.App.4th 1015 (Miller). There, the appellate court held that a defendant’s Faretta

request made after trial but two months before sentencing was timely and should have been

granted. (Id. at pp. 1022-1024.) While the timing of the Faretta request in Miller and in

this case—two months before the sentencing hearing and trial, respectively—is similar,

other circumstances are not. In Miller, there was no history of dilatory conduct, repetitious

Marsden motions, or threats to disrupt the proceedings. And, significantly, in Miller, there

was no trial court finding that the Faretta request was intended to delay or disrupt the

proceedings. To the contrary, the defendant in Miller did not request a continuance and

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stated he would be ready on the assigned day for sentencing. (Id. at p. 1020.) Miller is

distinguishable and does not support defendant’s position.

The trial court concluded that defendant “intend[ed] to use [his Faretta request] to

delay this trial unnecessarily . . . [and] to manipulate the process of the court.” (See People

v. Rudd (1998) 63 Cal.App.4th 620, 626 [trial court has discretion to deny Faretta request

that is “merely a tactic designed to cause delay”]; People v. Douglas (1995) 36 Cal.App.4th

1681, 1689 [trial court did not abuse discretion in conditioning grant of Faretta request on

defendant’s proceeding to trial without a continuance, finding that his Faretta request tied to

a continuance “a delaying tactic and not because he needed time to prepare a defense”].)

The court reiterated this conclusion concerning the Faretta request posttrial, at the hearing

on defendant’s motion for new trial. There was ample basis for the court’s finding that

defendant’s request to represent himself was made for purposes of delay and to manipulate

the proceedings. Accordingly, finding no abuse of discretion, we will not disturb the court’s

denial of the Faretta request. (See Butler, supra, 47 Cal.4th at p. 825; Marshall, supra,

15 Cal.4th at p. 27.)

B.

Admission of Uncharged Sex Crimes Evidence

1.

Background

Defendant contends that the court erred in admitting evidence of prior uncharged sex

crimes allegedly committed by defendant involving Doe 2 and Doe 3. The evidence was

admitted pursuant to section 1108. (Hereafter, this evidence is sometimes collectively

referred to as the section 1108 evidence.) Defendant contends that the court abused its

discretion in permitting the jury to hear this evidence of uncharged sex crimes because it

was “highly inflammatory” and its probative value was substantially outweighed by the

probability of its undue consumption of time and that its admission would “create

substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

(§ 352.)

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The admissibility of the section 1108 evidence was considered by the court in two

pretrial hearings. In or about August 2014, Rutledge filed a detailed motion in limine on

behalf of defendant seeking to exclude this evidence. The People submitted a brief in

response, and Rutledge filed a reply brief. At a pretrial hearing on August 22, 2014, after

hearing argument, the court ruled that the section 1108 evidence was admissible. The court

again reviewed the in limine motions on the first day of trial on March 9, 2015. Its rulings

were the same as those made on August 22, 2014.

2.

Applicable Law

Section 1108, subdivision (a) provides: “In a criminal action in which the defendant

is accused of a sexual offense, evidence of the defendant’s commission of another sexual

offense or offenses is not made inadmissible by Section 1101, if the evidence is not

inadmissible pursuant to Section 352.” As explained by our Supreme Court, section 1108

was enacted “to expand the admissibility of disposition or propensity evidence in sex

offense cases.” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “Section 1108

provides the trier of fact in a sex offense case the opportunity to learn of the defendant’s

possible disposition to commit sex crimes.” (Id. at p. 915.) Such evidence “constitutes

relevant circumstantial evidence that [the defendant] committed the charged sex offenses.”

(Id. at p. 920.) Evidence of prior sexual offenses under section 1108 may be considered for

any relevant purpose, “subject only to the prejudicial effect versus probative value weighing

process required by section 352.” (People v. Britt (2002) 104 Cal.App.4th 500, 505.)

Section 352 provides that the “court in its discretion may exclude evidence if its

probative value is substantially outweighed by the probability that its admission will (a)

necessitate undue consumption of time or (b) create substantial danger of undue prejudice,

of confusing the issues, or of misleading the jury.” In cases involving evidence potentially

admissible pursuant to section 1108, trial courts “must engage in a careful weighing process

under section 352.” (Falsetta, supra, 21 Cal.4th at p. 917.)

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Our Supreme Court has explained that the legislative history of section 1108 informs

us that the statute “was intended in sex offense cases to relax the evidentiary restraints

section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware

of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s

credibility.” (Falsetta, supra, 21 Cal.4th at p. 911.) The Falsetta court explained further

that “the Legislature’s principal justification for adopting section 1108 was a practical one:

By their very nature, sex crimes are usually committed in seclusion without third party

witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting

versions of the event and requires the trier of fact to make difficult credibility

determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity

to learn of the defendant’s possible disposition to commit sex crimes. [Citation.]” (Id. at

p. 915.)

In Falsetta, the court explained that various factors inform “the trial court’s

discretionary decision to admit propensity evidence under sections 352 and 1108.”

(Falsetta, supra, 21 Cal.4th at p. 919.) “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 defendant’s other sex

offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id.

at p. 917.)

We review the trial court’s decision to admit evidence under sections 1108 and 352

for an abuse of discretion. (People v. Story (2009) 45 Cal.4th 1282, 1295.) Under this

deferential standard, the trial court’s ruling will “ ‘not be disturbed on appeal except on a

showing that the court exercised its discretion in an arbitrary, capricious or patently absurd

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manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994)

8 Cal.4th 1060, 1124-1125.)

3.

No Error in Admission of Section 1108 Evidence

a.

Doe 2 Evidence

i.

Relevance/Similarity

In evaluating the admissibility of the uncharged sex crimes evidence involving Doe 2

occurring in April 1993, 12 we initially address the factors of “nature, relevance . . . [and]

similarity to the charged offense.” (Falsetta, supra, 21 Cal.4th at p. 917.) Included among

the crimes Doe 2 alleged defendant committed was the crime of forcible rape, the same as

one of the charged crimes. There were similarities in the circumstances involved with the

two women. In each instance, defendant cultivated the relationships by initially seeking out

the women in public places—at Carmel Beach with Doe 2 and at a Walmart with Jane. In

each case, defendant held a position of trust with the women. He had known Doe 2 for

approximately five months, and she had trusted him when he assured her repeatedly that he

would respect her wishes that their friendship remain a Platonic one. Defendant had known

Jane (excluding a brief period when they first met) for approximately eight months, and

after they married in November 2011 (shortly before the commission of the first charged

crime), there was a position of trust between husband and wife. Defendant took advantage

of that position of trust with Doe 2, as noted by the court, by “lur[ing] his way into her bed

when he complained he was too tired to drive home” after she had invited him to dinner. He

likewise abused his position of trust with his wife by forcibly raping her on November 22,

and forcibly performing oral sex on her and attempting to force her to perform oral sex on

him on December 23, 2011. The trial court thus properly concluded the uncharged sex

crimes evidence concerning Doe 2 was relevant and had similarities to the charged offenses.

Although no charges were ever filed against defendant concerning the April 1993

incident, based upon Doe 2’s testimony, there were potentially multiple sex crimes

committed. We will therefore refer to the uncharged crimes alleged by Doe 2 in the plural.

12

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ii.

Remoteness

The factor of “possible remoteness” (Falsetta, supra, 21 Cal.4th at p. 917) of the

uncharged sex offense concerns “the question of predisposition to commit the charged

sexual offenses.” (People v. Harris (1998) 60 Cal.App.4th 727, 739.) There are no specific

time limits that dictate a finding of remoteness. (People v. Branch (2001) 91 Cal.App.4th

274, 284; see, e.g., ibid. [uncharged crime occurred 30 years prior to charged offense];

People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [uncharged offenses occurring 15 and

22 years before trial held not too remote].) The fact that the defendant may have been

incarcerated for a substantial period of time between the commission of the uncharged

offense and the charged offense may argue against the defendant’s claim of remoteness.

(See People v. Wesson (2006) 138 Cal.App.4th 959, 970 [defendant was incarcerated for 11

years after commission of uncharged offense, which occurred 13 years prior to charged

offense]; People v. Pierce (2002) 104 Cal.App.4th 893, 900 (Pierce) [although uncharged

offense occurred 23 years earlier, defendant incarcerated for at least 12 years afterward].)

Here, although the uncharged sex crimes involving Doe 2 allegedly occurred in

April 1993—some 18 years prior to the charged offenses—defendant, as pointed out by the

court, was incarcerated for approximately eight years between the two dates. The court

properly concluded that possible remoteness was not a factor that favored excluding the

uncharged sex crimes evidence.

iii.

Certainty of Commission

As to the “degree of certainty of [the uncharged crime’s] commission” (Falsetta,

supra, 21 Cal.4th at p. 917), the trial judge observed that she had presided over the

conditional examination of Doe 2 taken in May 2014, and she had found her testimony to be

believable. We give great deference to the trial judge on this point. (See People v. Jones

(1990) 51 Cal.3d 294, 314 [witness credibility within “the exclusive province” of trier of

fact].) Moreover, a conviction is not required for the uncharged conduct to be admissible

under section 1108. (People v. Johnson (2000) 77 Cal.App.4th 410, 419, fn. 6.)

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iv.

Potential Confusion

The uncharged sex crimes involving Doe 2 were separate and distinct from the 2011

charged crimes involving defendant’s wife, Jane. There was thus little likelihood—as

concluded by the trial court—that introduction of evidence of the uncharged crimes related

to Doe 2 would cause jurors to be confused, distracted, or misled.

v.

Consumption of Time/Defendant’s Burden

Defendant argues that presentation of the uncharged sex crimes evidence concerning

Doe 2 should have been excluded because it involved an undue amount of trial time. We

disagree. The evidence consisted of the testimony of only one witness, Doe 2, consuming

67 pages of the court transcript. And the burden placed upon defendant to respond to that

testimony—as evidenced by the fact that his response consisted of defendant’s testimony

(five questions and answers consuming less than one page of the court transcript)—was very

minimal.

vi.

Prejudice

Defendant emphasizes the likelihood that evidence of the uncharged sex crimes

involving Doe 2 had a prejudicial impact on the jurors in this instance. In addressing this

claim of undue prejudice here, we first recite important principles enunciated by the

Supreme Court: “ ‘ “Prejudice” as contemplated by . . . section 352 is not so sweeping as to

include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that

term is used in a section 352 context, merely because it undermines the opponent’s position

or shores up that of the proponent. The ability to do so is what makes evidence relevant.

The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice,

confusion, or time consumption “ ‘substantially outweigh’ ” the probative value of relevant

evidence, a section 352 objection should fail. [Citation.] “ ‘The “prejudice” referred to

in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias

against the defendant as an individual and which has very little effect on the issues. In

applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]”

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[Citation.] [¶] The prejudice that section 352 “ ‘is designed to avoid is not the prejudice or

damage to a defense that naturally flows from relevant, highly probative evidence.’

[Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a

person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]” [Citation.] In

other words, evidence should be excluded as unduly prejudicial when it is of such nature as

to inflame the emotions of the jury, motivating them to use the information, not to logically

evaluate the point upon which it is relevant, but to reward or punish one side because of the

jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial

because of the substantial likelihood the jury will use it for an illegitimate purpose.’

[Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 438-439 (Doolin); see also People v.

Karis (1988) 46 Cal.3d 612, 638.)

The fact that defendant was neither charged nor convicted of any crimes concerning

Doe 2 raised a possible danger of prejudice in that the jury might have wished to punish

defendant for the uncharged crimes by rendering a guilty verdict for the charged crimes.

(See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) But where “[t]he testimony describing

defendant’s uncharged acts . . . [is] no more inflammatory than the testimony concerning the

charged offenses[, t]his circumstance decreased the potential for prejudice.” (Ibid.; see also

People v. Morton (2008) 159 Cal.App.4th 239, 247.) The trial court made such a finding

here, noting that the uncharged sex crimes relating to Doe 2 were not “particularly

inflammatory,” and (unlike the charged crimes) were not those “where the defendant has

beat[en] the victim up.” (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1140

[testimony of prior domestic violence that was no more inflammatory than the charged

crime held admissible under §§ 1109 and 352].) Further, any risk that the jury might punish

defendant for the uncharged crimes involving Doe 2 was mitigated by jury instructions

given by the court, specifically, instructions patterned on CALCRIM No. 1191A,

concerning the limited purpose for which the jury could consider the section 1108 evidence.

(See People v. Frazier (2001) 89 Cal.App.4th 30, 42 [risk of jury punishing defendant for

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uncharged crimes “counterbalanced” by instructions, including instruction that jury must not

convict defendant of uncharged crime].) 13

vii.

Conclusion

Based upon consideration of the various Falsetta factors, there was no error in the

admission of the uncharged sex crimes evidence concerning Doe 2 pursuant to section 1108.

The trial court did not abuse its discretion in determining that the probative value of the

evidence was not substantially outweighed by the probability that its admission would

“(a) necessitate undue consumption of time or (b) create substantial danger of undue

prejudice, of confusing the issues, or of misleading the jury.” (§ 352.)

b.

Doe 3 Evidence

i.

Relevance/Similarity

Some of the 1996 crimes involving Doe 3 of which defendant was convicted,

including forcible rape, were the same as the charged crimes here. Further, as noted by the

trial court, there were issues of similarity as between the two victims, Doe 3 and Jane. They

were of a similar age, they were both Hispanic, and they both had limited English-speaking

The court instructed the jury, in accordance with CALCRIM No. 1191A, as

follows: “The People presented evidence that the defendant committed the crimes of rape;

rape by foreign object, [and] assault with intent to commit rape that were not charged in this

case. These crimes are defined for you in these instructions. You may consider this

evidence to conclude that the defendant was disposed to commit sexual assault offenses

only if the People have proved by a preponderance of the evidence that the defendant in fact

committed the uncharged offenses. [¶] . . . [¶] If you decide that the defendant committed

the uncharged offenses, you may, but are not required to conclude from that evidence that

the defendant was disposed or inclined to commit sexual offenses, and based on that

decision, also conclude that the defendant was likely to commit spousal rape, forcible oral

copulation and assault with intent to commit forcible oral copulation, as charged here. [¶] If

you conclude that the defendant committed the uncharged offenses, that conclusion is only

one factor to consider along with all the other evidence. It is not sufficient by itself to prove

that the defendant is guilty of spousal rape, forcible oral copulation and assault with intent to

commit forcibly oral copulation. The People must still prove these charges beyond a

reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the

limited purpose of, one, determining the defendant’s credibility. And two, regarding proof

of the prior conviction allegations that I will instruct you on in Instruction 3100.”

13

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skills. In addition, while their respective relationships with defendant were very different,

each woman had a relationship of trust and vulnerability relative to defendant. Doe 3 was

solicited by defendant under the guise of performing work for his business at a time when

she was greatly in need of money. After being kind to her, taking her in his van to a

restaurant, and buying her lunch, when they arrived at the house defendant supposedly

wanted her to clean, he locked her inside, prevented her from leaving, and raped her.

Likewise, by virtue of being married to defendant, Jane’s relationship with him involved

trust as well as, the court noted, “some amount of secrecy and privacy . . . similar to the

1996 event with Jane Doe Number [3].” And as the court also observed, in each instance,

after the victim placed her trust and confidence in defendant, his “demeanor change[d] when

he [was] in the private location of secrecy or safety . . . where the kindness and attentiveness

change[d] and defendant bec[ame] aggressive and violent.”

ii.

Remoteness

As was true with the section 1108 evidence concerning Doe 2, the court properly

found that the possible remoteness of the prior offenses—in this case occurring in 1996, 15

years before the charged offenses—did not suggest the evidence should have been excluded.

This determination was likewise based in part upon the fact that defendant had been

incarcerated for approximately eight years between 1997 and 2005. (See Pierce, supra, 104

Cal.App.4th at p. 900.)

iii.

Certainty of Commission

Defendant was convicted, sentenced, and served a prison term for the crimes

involving Doe 3. There was thus no issue concerning the certainty of the prior crimes’

commission that would suggest its exclusion. (See Falsetta, supra, 21 Cal.4th at p. 917.)

iv.

Potential Confusion

The trial court determined that there was little likelihood that admission of the

uncharged sex crimes evidence concerning Doe 3 would result in the jurors’ confusion or

distraction. The court properly found that any such concerns were mitigated by defendant’s

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having been convicted and having served a prison sentence for the prior uncharged crimes.

(Cf. People v. Balcom (1994) 7 Cal.4th 414, 427 [uncharged crime evidence properly

admitted under § 1101 to show common design or plan, where “attention of the jury was not

diverted to . . . whether or not defendant had committed the uncharged offenses, because

that fact had been determined conclusively by . . . conviction”].)

v.

Consumption of Time/Defendant’s Burden

Defendant asserts that permitting evidence of the uncharged crimes involving Doe 3

resulted in the undue consumption of time. The evidence was presented through the

testimony of one witness, Doe 3, consisting of 48 pages of the court transcript. And the

burden placed upon defendant to respond to that testimony—as evidenced by the fact that

his response consisted of defendant’s testimony (five questions and answers consuming less

than one page of the court transcript (aside from modest cross-examination that followed)—

was very minimal.

vi.

Prejudice

Defendant emphasizes the prejudice he claims to have been associated with the

introduction of the uncharged crimes evidence involving Doe 3. The court, in conducting a

weighing under section 352 of the probative value of the evidence against its potential

prejudicial effect, concluded that the evidence was not excludable. And in its analysis, the

court considered that the potential for prejudice was mitigated by the fact that defendant had

been convicted and had served a prison sentence for the prior uncharged crimes relating to

Doe 3. As our Supreme Court has held: “[T]he prejudicial impact of the evidence is

reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring

that the jury would not be tempted to convict the defendant simply to punish him for the

other offenses, and that the jury’s attention would not be diverted by having to make a

separate determination whether defendant committed the other offenses.” (Falsetta, supra,

21 Cal.4th at pp. 916-917; see also People v. Loy (2011) 52 Cal.4th 46, 61.) Further, the

court, while acknowledging the evidence was inflammatory, indicated that “any offense that

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is a prior sexual conduct would be inflammatory. [Sic.]” (See Doolin, supra, 45 Cal.4th at

pp. 438-439 [fact that challenged evidence is inconvenient to defendant or is damaging to

his or her case does not render it unduly prejudicial under § 352].) Moreover, defense

counsel in closing argument urged the jury that it would be improper to convict defendant of

the charged crimes as punishment for his commission of the prior crimes involving Doe 3.

vii.

Conclusion

There was no error in the admission of the uncharged sex crimes evidence

concerning Doe 3 pursuant to section 1108. The record reflects that the trial court gave

thoughtful consideration of the factors enunciated by the Supreme Court in Falsetta. The

court did not abuse its discretion in determining that the probative value of the uncharged

crime evidence was not substantially outweighed by the probability that its admission would

“necessitate undue consumption of time or (b) create substantial danger of undue prejudice,

of confusing the issues, or of misleading the jury.” (§ 352.)

C.

Admission of Harassment/Restraining Order Evidence (Doe 2)

1.

Defendant’s Contentions

Defendant contends the trial court erred as well in the admission of evidence that

Doe 2, after her alleged rape by defendant, was harassed and stalked by defendant, resulting

in Doe 2’s reporting the issue to the police, hiring an attorney, and obtaining a restraining

order. He argues that this testimony was improper because section 1108 is limited to the

introduction of uncharged acts of sexual misconduct and is inapplicable to nonsexual

misconduct such as stalking or harassment.

Defendant contends further the court erred in permitting the introduction of trial

exhibit 8, the restraining order obtained by Doe 2 and accompanying documents related

thereto. Defendant identifies the objectionable material in trial exhibit 8 that was prejudicial

to his case as including the following out-of-court statements: (1) by Doe 2’s friend,

recounting a telephone conversation with defendant in which he made disparaging remarks

about Doe 2 (“ ‘Has the doctor fixed that bitch’s head yet,’ ” and “ ‘What are you doing

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hanging around that fat bitch[? Y]ou must be a faggot.’ ”); (2) by Doe 2’s former landlady,

who had disclosed that defendant had told her that Doe 2 “had engaged in wild parties at her

house and had participated in porno movies at the house”; (3) by someone from the Carmel

Police Department who told Doe 2 that defendant had a criminal record; (4) by Doe 2’s

attorney, Douglas Oldfield, who stated that defendant had “date-raped [Doe 2] and then

began a pattern of abusive telephone calls to [her] and her friends and business

acquaintances”; (5) by Oldfield that defendant had telephoned Doe 2 on December 26,

1994, and had asked “ ‘What did Santa bring you this year, a collar or a bone?’ ”; (6) in a

Monterey Police Department report noting that Doe 2 had reported the December 26, 1994

telephone call from defendant in violation of a restraining order and that defendant had

“sexually assaulted her about a year and a half ago [and h]e then began making a series of

obscene phone calls to her”; and (7) by an agent of the Monterey County Sheriff’s

Department stating she had been unable to serve a writ of execution on defendant and that a

judgment deficit of $1,038.22 was outstanding. Defendant argues that these statements

constituted inadmissible hearsay and were excludable as testimonial statements of third

party witnesses whom defendant had no opportunity to cross-examine in violation of the

Sixth Amendment under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).)

Defendant argues further that, assuming the objections asserted at trial concerning the

admission of the testimony of Doe 2 (including the introduction of trial exhibit 8) were

insufficient, the claim is nonetheless cognizable on appeal because he received ineffective

assistance of counsel. We conclude that the appellate challenges to the admission of the

testimony of Doe 2 concerning defendant’s alleged harassment and her obtaining a

restraining order, and the introduction of trial exhibit 8 (hereafter, collectively the

harassment/restraining order evidence) were forfeited, and we reject defendant’s ineffective

assistance of counsel argument.

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2.

Trial Exhibit 8

Before addressing defendant’s challenge to the admission of the

harassment/restraining order evidence, we address an issue raised by the Attorney General.

The Attorney General asserts that there is considerable doubt that trial exhibit 8 consisted of

over 100 pages of documents relating to Doe 2’s restraining order proceeding (as contended

by defendant). Rather, the Attorney General argues, the actual trial exhibit presented to the

jury was only the order to show cause and temporary restraining order and the attachment to

application and declaration for order (seven pages). 14 The Attorney General bases this

contention on (1) the trial court’s having referred to the exhibit at the time it was admitted at

trial as “the restraining order and related documents related to Jane Doe Number [2]”; and

(2) the fact that the documents (107 pages) following the first seven pages of the exhibit

“are separately combined and not only do not contain an exhibit tag, but include documents

that do not appear to relate to Jane Doe [2’s] restraining order.” The Attorney General

argues that “[w]hile it appears that this material [the 107 pages] was stored with the exhibit

admitted at trial as People’s Exhibit 8, there is no reason to believe it was admitted as part of

that exhibit or that the jury was able to review these pages while deliberating.”

Trial exhibit 8, transmitted by the superior court to this court, consists of 114 total

pages. The 107 pages affixed behind the seven initial pages (order to show cause and

temporary restraining order and the attachment to application and declaration for order) do

generally relate to Doe 2’s restraining order and consisted of various pleadings that were all

filed in the superior court in the same proceeding initiated by Doe 2 with her application for

a temporary restraining order. 15 Further, we understand the trial court’s identification of the

The Attorney General identifies these documents as consisting of “only four

pages.” But because three of the pages are two-sided, there are in fact a total of seven

pages.

15 The 107 pages of documents attached to the seven initial pages of trial exhibit 8

consist of (1) a proof of service of the order and application, (2) the court’s findings, and

restraining order after hearing, (3) a minute order from a hearing of January 14, 1994,

14

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exhibit as “the restraining order and related documents” to be a shorthand reference, rather

than an expression that the documents were all ones filed in connection with the initial

hearing in which Doe 2 sought a restraining order. And the fact that the 107 pages do not

contain a separate exhibit label identifying them as being part of trial exhibit 8 is of no

consequence. It is commonplace for a multiple-page trial exhibit to include an exhibit

identification on only the first page.

The clerk of the court is required to retain “[a]ll exhibits which have been introduced

or filed in any criminal action or proceeding.” (Pen. Code, § 1417.) There is a presumption

“that official duty has been regularly performed.” (§ 664.) This presumption under the

Evidence Code is applicable to court clerks. (People v. Martinez (2000) 22 Cal.4th 106,

125.) Thus, the Supreme Court has held that “[u]nder Evidence Code section 664, we

presume the clerk ‘regularly performed’ [the clerk’s] official duty and submitted to the jury

only the admissible portions of any exhibits which they requested. [Citations.]” (People v.

Mitcham (1992) 1 Cal.4th 1027, 1056; see also People v. Jackson (1996) 13 Cal.4th 1164,

1213.) Here, it is presumed that the superior court clerk properly identified and maintained

the documents consisting of trial exhibit 8, and that the clerk properly transmitted the

documents comprising that trial exhibit to this court. The Attorney General has made no

showing rebutting that presumption.

(4) a proof of service of the findings and restraining order, (5) an order to show cause re

contempt and accompanying declaration relative to the prior restraining order, (6) clerk’s

minutes of January 6, 1995, concerning an order to show cause re contempt, (7) a second

order to show cause re contempt and accompanying declaration relative to the prior

restraining order, (8) a proof of service of the second order to show cause, (9) defendant’s

responsive declaration to order to show cause, (10) defendant’s objection to evidence

submitted in connection with the order to show cause, (11) reply brief and declarations

submitted on Doe 2’s behalf relative to the order to show cause, (12) two further

declarations submitted on defendant’s behalf in opposition to the order to show cause;

(13) further evidentiary objections submitted on defendant’s behalf, (14) a minute order of

February 10, 1995, from the hearing on the order to show cause, (15) an order of contempt

filed February 27, 1995, (16) a notice of entry of the order of contempt, (17) a writ of

execution, and (18) a notice of filing of bankruptcy petition on behalf of defendant.

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3.

Forfeiture of Appellate Claim

Section 353 provides in relevant part: “A verdict or finding shall not be set aside, nor

shall the judgment or decision based thereon be reversed, by reason of the erroneous

admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to

exclude or to strike the evidence that was timely made and so stated as to make clear the

specific ground of the objection or motion . . . .” (Italics added.) As our high court has

explained: “In accordance with [section 353], we have consistently held that the

‘defendant's failure to make a timely and specific objection’ on the ground asserted on

appeal makes that ground not cognizable. [Citation.]” (People v. Seijas (2005) 36 Cal.4th

291, 302.) The rationale for this principle of forfeiture in the context of criminal cases is

that “[t]he objection requirement is necessary . . . because a ‘contrary rule would deprive the

People of the opportunity to cure the defect at trial and would “permit the defendant to

gamble on an acquittal at his trial secure in the knowledge that a conviction would be

reversed on appeal.” ’ [Citation.] ‘The reason for the requirement is manifest: a

specifically grounded objection to a defined body of evidence serves to prevent error. It

allows the trial judge to consider excluding the evidence or limiting its admission to avoid

possible prejudice. It also allows the proponent of the evidence to lay additional foundation,

modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’

[Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 434.)

The testimony of Doe 2 presented at trial was entirely through her conditional

examination taken in May 2014 in which defendant and his trial counsel participated. Thus,

the totality of Doe 2’s prospective testimony, including her discussion of defendant’s

alleged harassment, her obtaining a restraining order, and the identification of the

documentary evidence concerning the restraining order, was completely known to defendant

and his counsel 10 months before trial. This knowledge notwithstanding, defense counsel

did not object to the harassment/restraining order evidence on the basis of its being

nonsexual conduct outside the purview of section 1108 at any of the following

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opportunities: (1) in his August 2014 written in limine motion specifically seeking

exclusion of the section 1108 evidence on stated grounds that it was inadmissible under

section 352; (2) in his reply memorandum in support of his in limine motion; (3) at the first

hearing concerning potential exclusion of the section 1108 evidence on August 22, 2014; (4)

at the second hearing concerning potential exclusion of the section 1108 evidence on March

9, 2015; (5) at the time Doe 2’s testimony was presented to the jury; or (6) at the time the

prosecution offered trial exhibit 8 into evidence.

Thus, defendant forfeited his appellate challenge to the harassment/restraining order

evidence on the ground that it was nonsexual conduct not made admissible under section

1108, because he failed to object on that basis at trial. (Doolin, supra, 45 Cal.4th at p. 438

[where evidentiary objection at trial was upon a different ground than one advanced on

appeal, appellate challenge to evidence is not preserved]; see also Pierce, supra, 104

Cal.App.4th at p. 898 [appellate claim that assault with intent to commit rape is not a sexual

offense under section 1108 forfeited, where argument was not raised at trial].) Further, he

forfeited his appellate challenge to the introduction of trial exhibit 8 on the bases—not

raised below—that the exhibit included statements that were inadmissible hearsay and ones

that were testimonial out-of-court statements inadmissible because they violated defendant’s

constitutional right to confrontation of witnesses under Crawford. (See (People v. Tafoya

(2007) 42 Cal.4th 147, 166 (Tafoya) [appellate challenge that ruling prohibiting crossexamination violated constitutional rights under the confrontation clauses of the federal and

state Constitutions forfeited, where ground not asserted at trial]; People v. Harrison (2005)

35 Cal.4th 208, 239 (Harrison) [hearsay challenge forfeited, where objection at trial to

evidence was upon different ground]; but see People v. Rangel (2016) 62 Cal.4th 1192,

1215 [where case was tried before Crawford, appellate claim not forfeited due to failure to

raise confrontation clause objection at trial].)

Defendant cites People v. Nguyen (2010) 184 Cal.App.4th 1096 (Nguyen) in support

of his position that his claim was preserved on appeal. In Nguyen, the appellate court

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concluded that while the trial court did not abuse its discretion under sections 1108 and 352

in admitting prior uncharged sex offenses involving the victim, T.V., the court erred in

admitting evidence of nonsexual uncharged offenses, namely, two violent attacks on T.V.’s

friend (and later husband), vandalism of the victim’s car and theft of the victim’s car key,

stalking T.V., and attempting to break into T.V.’s house. (Nguyen, at pp. 1119-1120.) The

appellate court held that while defendant did not distinguish these nonsexual offenses from

the sexual offenses in opposing the introduction of the evidence, the trial court nonetheless

should have excluded the former offenses as inadmissible under section 1108. (Nguyen, at

p. 1120.)

The circumstances in Nguyen are distinguishable from this case in that (1) the case

included separate acts of violence involving the victim’s friend unrelated to the sexual

offenses, and (2) there was no contention by respondent that defendant had forfeited the

claim of error by failing to argue the nonsexual conduct was inadmissible under section

1108. Because here, the People do assert that defendant has forfeited the challenge that the

harassment/restraining order evidence was nonsexual conduct inadmissible under section

1108, and because we perceive the contention to be a separate and distinct ground from the

objection raised below (i.e., inadmissibility under section 352 because the probative value

was substantially outweighed by the probability of undue prejudice, etc.), we conclude the

appellate challenge to the admissibility of the harassment/restraining order evidence is

forfeited. Moreover, as Nguyen did not concern hearsay and confrontation clause challenges

to the admissibility of court documents regarding a restraining order obtained by the victim,

it has no bearing on our conclusion that defendant forfeited the challenge to trial exhibit 8

on those grounds. (See Tafoya, supra, 42 Cal.4th at p. 166; Harrison, supra, 35 Cal.4th at

p. 239.)

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4.

Ineffective Assistance of Counsel

a.

Applicable Law

A criminal defendant has the right to the assistance of counsel. (U.S. Const., 6th

Amend.; Cal. Const., art. I, § 15.) This constitutional right to counsel entitles a defendant

not simply to “bare assistance” but rather to effective assistance. (People v. Jones (1991)

53 Cal.3d 1115, 1134.) This constitutionally adequate assistance requires that the attorney

diligently and actively participate in the complete preparation of the client’s case, and

investigate all defenses of law and fact. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope),

overruled on another ground, People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)

An ineffective assistance of counsel claim requires a showing that “counsel’s action

was, objectively considered, both deficient under prevailing professional norms and

prejudicial.” (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington

(1984) 466 U.S. 668, 687 (Strickland).) “[T]he burden is on the defendant to show (1) trial

counsel failed to act in the manner to be expected of reasonably competent attorneys acting

as diligent advocates and (2) it is reasonably probable that a more favorable determination

would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990)

50 Cal.3d 262, 288.) This means that the defendant “must show both that his counsel’s

performance was deficient when measured against the standard of a reasonably competent

attorney and that counsel’s deficient performance resulted in prejudice to [the] defendant in

the sense that it ‘so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.’ [Citations.] ” (People v. Kipp

(1998) 18 Cal.4th 349, 366 (Kipp), quoting Strickland, supra, 466 U.S. at p. 686.)

“ ‘In determining whether counsel’s performance was deficient, a court must in

general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of

counsel’s acts or omissions . . . under the circumstances as they stood at the time that

counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation],

courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of

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hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) “[T]here is a ‘strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland,

supra, 466 U.S. at p. 689.) The failure of counsel to object to certain evidence is rarely a

successful basis for reversal of a conviction on ineffective assistance grounds. (People v.

Boyette (2002) 29 Cal.4th 381, 424.) And if “the record on appeal sheds no light on why

counsel acted or failed to act in the manner challenged,” we must reject the claim on appeal

“unless counsel was asked for an explanation and failed to provide one, or unless there

simply could be no satisfactory explanation.” (Pope, supra, 23 Cal.3d at p. 426.)

The “prejudice” element requires a showing that “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result would have been more

favorable to defendant, i.e., a probability sufficient to undermine confidence in the

outcome.” (In re Ross (1995) 10 Cal.4th 184, 201.) Prejudice requires a showing of

“a ‘ “demonstrable reality,” not simply speculation.’ [Citations.]” (People v. Fairbank

(1997) 16 Cal.4th 1223, 1241.)

Defendant’s burden of establishing ineffective assistance of counsel is a significant

one: “Surmounting Strickland’s high bar is never an easy task. [Citations.]” (Padilla v.

Kentucky (2010) 559 U.S. 356, 371.) And in deciding an ineffective assistance claim, the

reviewing court need not inquire into the two components (deficient performance and

prejudice) in any particular order. (See In re Cox (2003) 30 Cal.4th 974, 1019-1020.) “[A]

court need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)

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b.

Prejudice Not Shown

We address the second Strickland prong here: prejudice. The primary focus of the

case was Jane’s testimony. She presented strong and direct evidence that defendant

committed the charged offenses. Her testimony was corroborated in part by her friend,

Jasmin, who confirmed that she spoke with Jane by telephone on one occasion in which

Jane said, “in a desperate manner” that she couldn’t talk because defendant “was trying to

perform oral sex on [Jane] and . . . he wanted her to tell [Jasmin] what he was doing to her.”

Jasmin also corroborated Jane’s testimony concerning defendant’s controlling nature, i.e.,

defendant telling her in Jane’s presence that he did not like friends of his wife or girlfriend

visiting at his home or calling Jane. And Jasmin witnessed an instance in which she saw

Jane—inappropriately dressed and crying—walking on the sidewalk to pay for her phone

because defendant had taken it away from her.

Further, Jane’s testimony concerning having been physically injured by defendant on

the evening of December 23, 2011, was corroborated by (1) Jasmin, who took Jane to the

hospital, observed that one of her eyes was very swollen, and was told by Jane that she was

in pain; (2) Officer Swinscoe, who observed physical injuries to Jane that night; and (3) the

physician’s assistant (Price) who treated Jane that night and diagnosed her as having

multiple contusions and tenderness just below the left side of her ribcage. Additionally,

Officer Swinscoe corroborated Jane’s testimony, in that Jane told her in the interview the

night of the incident that defendant, in addition to forcibly orally copulating her, pushed her

out of the bedroom, grabbed her by the hair and pulled her off the couch, and slapped her

across the face. And Dr. Bass, who treated Jane two days later, testified that defendant had

suffered a significant injury to her left eye, traumatic iritis, which can be caused by the

patient being struck by a blow.

Additionally, the case against defendant was strengthened by the introduction of the

prior uncharged sex crimes involving Doe 2 and Doe 3—which was “relevant circumstantial

evidence that [defendant] committed the charged sex offenses” (Falsetta, supra,

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21 Cal.4th at p. 920) that was, as we have concluded, ante, properly admitted under section

1108. And while the harassment/restraining order evidence placed defendant in a bad light

relative to his alleged actions toward Doe 2, it was far less inflammatory than the properly

admitted evidence that defendant, after befriending Doe 2, gaining her trust, and assuring

her that he would respect her desire that they have no physical relationship, forcibly raped

her.

The statements in trial exhibit 8 that defendant on appeal contends were improperly

admitted hearsay and testimonial statements in violation of his right of confrontation were

largely cumulative of Doe 2’s testimony (e.g., that defendant had raped her). And the

exhibit included statements favorable to defendant concerning Doe 2’s claim that he

harassed her, including statements in his declaration that (1) the calls Doe 2 claimed were

made by him from his personal calling card were from two telephone numbers unknown to

him, (2) multiple persons had access to his telephone number, (3) he had not spoken with

Doe 2 since the January 24, 1994 hearing on the restraining order application and had not

attempted to contact her since that time, and (4) he had never sexually assaulted Doe 2.

Moreover, the prosecutor made only minimal reference to the harassment/restraining

order evidence in her argument to the jury. She referred fleetingly that one of the pieces of

documentary evidence to be made available the jury was “the restraining order that was

submitted into evidence when Jane Doe Number [2] testified in her conditional exam.” The

prosecutor also stated that Doe 2 had not called the police after defendant had raped her and

only did so later when “the harassment became too much and she could not get rid of him.”

Further, there were no juror questions suggesting that the jury placed any significance upon

the claim that defendant had stalked Doe 2, causing her to obtain a restraining order. And

we observe that the jury deliberated for only one hour and five minutes before reaching

guilty verdicts on all counts. (See People v. Weaver (2001) 26 Cal.4th 876, 974 [rather than

indicative of jury’s improper consideration of death penalty in guilt phase, it was more

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likely “ ‘the relatively short duration of the jury’s deliberations simply reflected the strength

of the prosecution’s case’ ”].)

We conclude from our review of the record that—assuming trial counsel’s failure to

object to Doe 2’s testimony concerning defendant’s alleged harassment and her obtaining a

restraining order, and to the admission of trial exhibit 8 was deficient under prevailing

professional norms—defendant has failed to meet his burden of establishing prejudice.

(People v. Vines (2011) 51 Cal.4th 830, 875.) We do not find that “ ‘counsel’s [assumed]

deficient performance resulted in prejudice to [the] defendant in the sense that it ‘so

undermined the proper functioning of the adversarial process that the trial cannot be relied

on as having produced a just result.’ [Citations.]” (Kipp, supra, 18 Cal.4th at p. 366.)

D.

Evidence of Statements Made by Jane to Third Parties

1.

Defendant’s Contentions

Defendant contends that the court erred in admitting evidence of statements Jane

made to third parties under the spontaneous statement exception to the hearsay rule.

Specifically, he challenges admission of certain statements made by Jane to (1) to her friend,

Jasmin, and (2) Officer Garcia. The statement to Jasmin was made at the time she saw Jane

on the sidewalk, dressed inappropriately and crying. While Jasmin was taking Jane to pay

her phone bill, Jane told Jasmin she was crying because “she had been having problems in

her marriage . . . That he would become aggressive when she didn’t do what he said and that

there had been occasions in which there had been physical contact.” Officer Garcia testified

that on January 12, 2012, while investigating a reported trespass at Jane’s apartment, she

told him, while “she was crying . . . [and] scared,” that “she felt pressured. She was scared

to testify in court and tell the truth. If she told the truth, that something was going to happen

to her.” Defense counsel objected to the testimony Jasmin and Officer Garcia on hearsay

grounds; the court overruled the objection in both instances. Defendant argues that the

statements were not properly admissible under the spontaneous statement exception to the

hearsay rule (§ 1240).

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2.

Applicable Law

Our Supreme Court has identified three elements necessary to admit evidence under

the spontaneous statement (declaration) exception to the hearsay rule as provided in section

1240: “ ‘(1) there must be some occurrence startling enough to produce this nervous

excitement and render the utterance spontaneous and unreflecting; (2) the utterance must

have been before there has been time to contrive and misrepresent, i.e., while the nervous

excitement may be supposed still to dominate and the reflective powers to be yet in

abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding

it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) 16 The rationale for

this exception to the hearsay rule “ ‘is that if the declarations are made under the immediate

influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to

be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of

trustworthiness is “that in the stress of nervous excitement the reflective faculties may be

stilled and the utterance may become the unreflecting and sincere expression of one’s actual

impressions and belief.” ’ [Citation.]” (Ibid.)

The trial court assesses whether a statement meets the requirements of section 1240,

a matter that is generally a question of fact. (People v. Thomas (2011) 51 Cal.4th 449, 495.)

The appellate court “will uphold the trial court’s determination of facts when they are

supported by substantial evidence and review for abuse of discretion its decision to admit

evidence under the spontaneous statement exception. [Citations.]” (People v. Merriman

(2014) 60 Cal.4th 1, 65.)

Section 1240 provides: “Evidence of a statement is not made inadmissible by the

hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act,

condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while

the declarant was under the stress of excitement caused by such perception.”

16

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3.

No Prejudicial Error

The statements by Jane to Jasmin concerning her marital problems and defendant’s

having been aggressive and physical do not appear to satisfy the three elements identified in

Poggi required for admission of a spontaneous statement under section 1240. First, the

showing was insufficient that there was “ ‘some occurrence startling enough to produce this

nervous excitement and render the utterance spontaneous and unreflecting.’ ” (Poggi,

supra, 45 Cal.3d at p. 318.) Jasmin neither identified the date of her encounter with Jane on

the street nor described a specific startling occurrence that was the apparent cause of Jane’s

distress. And Jane testified only that the instance in which Jasmin found her walking on the

sidewalk was “around” November 21, 2011, and Jane related it to her walking to the store to

“pay [her] phone” because defendant had taken away her phone and car keys. This did not

establish the foundation of a startling occurrence upon which a spontaneous utterance could

be based. It follows that since no startling occurrence was established, it was not shown that

“ ‘(2) the utterance [was] before there ha[d] been time to contrive and misrepresent, . . . [or

that it] (3) . . . relate[d] to the circumstance of the occurrence preceding it.’ [Citations.]”

(Ibid.) There was thus no substantial evidence to support the admission of Jasmin’s

testimony under the spontaneous statement exception to the hearsay rule.

There was foundational support under section 1240 for the spontaneous statement by

Jane to Officer Garcia concerning her fear that something might happen to her if she

testified in court. There was evidence of a startling occurrence, i.e., a recent crime of

trespass at Jane’s apartment. And Jane’s statement to Officer Garcia made while “she was

crying . . . [and] scared” occurred shortly after she had learned of this trespass, thereby

supporting a conclusion that “ ‘the utterance [was made] before there [was] time to contrive

and misrepresent.’ ” (Poggi, supra, 45 Cal.3d at p. 318.) This temporal component was

established not only through Officer Garcia; Officer Ramirez testified that he met with Jane

both in the morning of January 12, 2012, and again early that afternoon after she had learned

about the trespass, when he observed that she was very upset. We therefore conclude there

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was substantial evidence to support the conclusion that Jane’s statements to Officer Garcia

qualified as spontaneous statements under section 1240 and there was no abuse of discretion

in admitting the testimony.

Where there is error in the admission of hearsay evidence, the Watson standard for

determining whether the error is prejudicial applies, that is, the judgment will not be

reversed unless “after examining the entire cause, including the evidence, it is . . .

‘reasonably probable that a result more favorable to the appealing party would have been

reached in the absence of the error.’ [Citation.]” (People v. Seumanu (2015) 61 Cal.4th

1293, 1308 (Seumanu), quoting People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Here, Jane’s hearsay statements to Jasmin concerning Jane’s marital problems and her

statement that defendant had been “aggressive” and that “there had been physical contact”

were not inflammatory and concerned matters to which Jane herself had testified in detail.

Moreover, while defendant attaches heightened significance to the challenged evidence, we

observe that the prosecutor did not even refer to this testimony by Jasmin in her arguments

to the jury. Rather, she emphasized Jasmin’s testimony as it concerned (1) defendant’s

statement to her the first time they met that he fantasized about having sex with two women

at the same time; (2) defendant’s statement to Jasmin that he did not like visits or phone

calls from the friends of his girlfriend or wife; (3) the changes she saw in Jane after she and

defendant married, evidencing that defendant isolated and controlled Jane; and (4) having

seen Jane on the street without car keys or a phone. We conclude from a review of the

entire record that it is not reasonably probable that defendant would have achieved a more

favorable result absent any error in the admission of the hearsay statements of Jane through

the testimony of Jasmin. (Seumanu, at p. 1308.)

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E.

Limitation of Cross-Examination of Jane Doe 1

1.

Defendant’s Contentions

Defendant contends that the trial court abused its discretion in limiting the crossexamination by defense counsel of Jane. The examination related to her ownership of a

vehicle and whether she possessed a driver’s license during the time she was married.

During cross-examination, Jane was asked about a Jeep Cherokee automobile she

referred to in her direct examination. She testified that she “would drive it.” Defense

counsel asked if she owned the vehicle, and, over the People’s relevance objection (which

the court overruled), Jane responded that it was owned by another person. The court

thereafter sustained the People’s relevance objections to defense counsel’s questions:

(1) whether the owner was a person named Rangel; (2) whether it was true that the owner of

the vehicle wanted it back at the time she possessed it; and (3) whether she had a driver’s

license at the time she was driving the vehicle. After Jane’s testimony was completed,

defense counsel stated for the record that because Jane had testified that defendant had taken

her documents, “we felt it was relevant to be able to probe into whether or not she had a

California driver’s license and that was part of the documentation that [defendant] kept.”

Defense counsel did not mention the inquiry as to ownership of the vehicle or whether the

owner had wanted to take back possession of the car. The court responded that it had

“found that going any further into that line of questioning would not be relevant . . . to the

issues before the Court and . . . jury.”

Defendant argues that this was proper cross-examination, following up on Jane’s

direct testimony that defendant took her car keys (as well as her phone and papers) away

from her. He asserts that the inquiry was very important to the exploration of the nature of

his relationship with Jane before December 23, 2011. Defendant contends that the error

violated his constitutional rights of due process and confrontation of witnesses. And he

claims that the error was prejudicial under the Chapman standard because the People cannot

“prove beyond a reasonable doubt that the error complained of did not contribute to the

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verdict obtained” (Chapman v. California (1967) 386 U.S. 18, 24.) He argues alternatively

that even if the Watson standard is applicable, it is reasonably probable that he would have

achieved a more favorable result absent the error. (See Watson, supra, 46 Cal.2d at p. 836.)

2.

Applicable Law

“Trial judges retain ‘wide latitude insofar as the Confrontation Clause is concerned to

impose reasonable limits on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.’ [Citations.]” (People v. Ledesma (2006)

39 Cal.4th 641, 705 (Ledesma), quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679680.) Thus, although a criminal defendant’s right to cross-examine witnesses has “long

been recognized as essential to due process” (Chambers v. Mississippi (1973) 410 U.S. 284,

294), “the trial court has wide latitude under state law to exclude evidence offered for

impeachment that is collateral and has no relevance to the action [citations], [and its

evaluation] . . . necessarily encompasses a determination that the probative value of such

evidence is ‘substantially outweighed’ by its prejudicial, ‘confusing,’ or time-consuming

nature. [Citations.]” (People v. Contreras (2013) 58 Cal.4th 123, 152; see People v. Lewis

(2001) 26 Cal.4th 334, 374-375 [§ 352 gives trial court broad power to prevent

“ ‘ “nitpicking” ’ ” over “ ‘ “collateral credibility issues” ’ ”].)

We review a trial court’s ruling admitting or excluding evidence offered for

impeachment for abuse of discretion. A ruling admitting or excluding such impeachment

evidence “will not be disturbed except on a showing the trial court exercised its discretion in

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice [citation]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 (Rodriguez).)

3.

There Was No Error

The court did not abuse its discretion in the purported curtailment of the crossexamination of Jane by defense counsel. First, it is unclear how evidence that Jane

purportedly did not have a valid California driver’s license at the time she was married to

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defendant would have been relevant, let alone significant evidence pertaining to what

defendant asserts was the “critical issue at trial,” the nature of his relationship with Jane

before December 23, 2011. If the speculative import was that defendant took away her car

keys because he did not want her to drive without a valid license, this is refuted (1) directly

by defendant’s own testimony that he “[n]ever” prevented Jane from “having the keys”; and

(2) inferentially by the fact that, despite having the opportunity, he provided no testimony

that he was concerned about Jane purportedly driving without a valid license. Further,

defense counsel was able to elicit testimony from Jane that she had told an investigator that

defendant had kept her documents, which she described in court as being “[d]ocuments from

my country, the counselor matricula and [her] driver’s license from that country.” The jury

could have inferred from this testimony that Jane did not in fact have a California driver’s

license at the time she was married (and that therefore defendant never kept it from her).

Second, the significance of Jane possessing the Jeep Cherokee vehicle while she was

married to defendant and of the registered owner’s purported desire to regain possession of

it are not manifest from the record. Indeed, at the time defense counsel placed on the record

his concerns about the court’s purported limitation of his cross-examination, he did not even

mention the issue of the vehicle’s ownership or the owner’s purported desire to reclaim it.

There is no indication that defendant did not want her driving the vehicle because she did

not own it. To the contrary, his only testimony potentially related to the matter is that he

never kept Jane from “having the keys.” And, again, while defendant had the opportunity to

present affirmative evidence concerning the vehicle’s ownership, reasons Jane did not drive

it, or concerns he had concerning Jane driving it, he did not do so, either through his own

testimony or through the testimony of third parties.

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We conclude that the trial court, in exercising the “ ‘wide latitude’ ” it possesses in

placing limits on cross-examination (Ledesma, supra, 39 Cal.4th at p. 705), did not abuse its

discretion in this instance. (See Rodriguez, supra, 20 Cal.4th at pp. 9-10.) 17

F.

Discovery Order

Defendant lastly contends the trial court may have erred in concluding that the

following documents did not need to be disclosed to defendant: (1) personnel records

pertaining to Jane from the Mexican-American Opportunity Foundation (Foundation;

hereafter, records are collectively, the Foundation documents); and (2) the police report

from the Salinas Police Department pertaining to a claimed rape of Jane in December 2010

(report no. 11-110811; hereafter Police Report). Defendant requests that this court review

these materials to determine whether the court erred.

Defendant subpoenaed personnel records pertaining to Jane. Defense counsel

advised the court that he had reason to believe that there had been disciplinary actions taken

against Jane by the Foundation. At a hearing on January 28, 2014, defense counsel asked

the court to “consider discovery in its broadest scope and . . . permit . . . [defendant] to

review the information that was subpoenaed to see if it did have any relevance or bearing on

the alleged victim’s credibility in this case.” The court, after considering the matter and

after having reviewed the Foundation documents, denied defendant’s request, concluding

that “there is nothing in the records other than regular employment records on boarding

Defendant contends further that reversal is required due to cumulative error. We

have concluded there is one nonprejudicial error concerning the admission of Jane’s

statements through the testimony of Jasmin. There are thus no multiple errors to cumulate.

In addressing the challenge to admission of the harassment/restraining order evidence, we

have assumed without deciding that counsel’s performance was deficient in failing to object

to this evidence, but have concluded there was no ineffective assistance of counsel that was

prejudicial. This assumed error, together with the nonprejudicial error concerning the

admission of Jane’s statements through Jasmin’s testimony, does not warrant reversal.

Considered separately or together, we find “no serious flaw” in the judgment, and “[o]ur

careful review of the record persuades us that the trial was fundamentally fair and its

determination reliable.” (People v. Millwee (1998) 18 Cal.4th 96, 168.)

17

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reviews, temporary layoffs. So there is nothing that would fit into the category that

[defendant] request[ed].”

In October 2013, defendant filed a motion to compel production of the Police Report,

and requested that the People produce the report. The People opposed the motion. On

October 15, 2013, the court denied defendant’s motion, concluding that it was “not relevant

to the current case and is not likely to lead to relevant evidence either.”

We have reviewed the documents produced by the Foundation concerning Jane in

response to a subpoena duces tecum. We agree with the trial court’s conclusion that there

were no materials that should have been disclosed to defendant.

We have further reviewed the Police Report. We agree with the trial court’s

conclusion that the materials are not relevant to this case and are not likely to lead to the

discovery of relevant evidence.

V.

DISPOSITION

The judgment of conviction is affirmed.

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Bamattre-Manoukian, J.

WE CONCUR:

Elia, Acting P.J.

Mihara, J.

People v. Horton

No. H042319

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APPENDIX B

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