People v. McClanahan CA3 ( 2021 )

Filed 12/3/21 P. v. McClanahan CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C088638
Plaintiff and Respondent, (Super. Ct. No. 16FE012988)
v.
JUSTIN CARL MCCLANAHAN,
Defendant and Appellant.
A jury found defendant Justin Carl McClanahan guilty of five counts of lewd and
lascivious acts on a child. The victims were his two younger sisters. He was sentenced
to an aggregate 30-year term.
On appeal, defendant contends the trial court abused its discretion in (1) admitting
certain hearsay statements made by the victims and their grandfather; (2) excluding
evidence of a victim’s false allegation unless the person accused testified as to the falsity
of the allegation; and (3) admitting expert testimony regarding Child Sexual Abuse
1
Accommodation Syndrome. He also contends (4) the errors are cumulatively prejudicial.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found that between 2003 and 2005 defendant molested his sisters (the first
and second victims) who were respectively 7 and 12 years his junior. Defendant’s
parents, the two victims, a high school teacher, a high school counselor, the director of a
boarding school, a deputy, and a detective testified.
The Mother’s Testimony
Defendant’s mother testified that defendant, “a difficult teenager,” would watch
his siblings when she slept.
In the fall of 2011, the first victim told her parents that defendant had touched her
inappropriately. They didn’t call the police but arranged therapy for the first victim. The
mother testified, “We wanted justice, but we didn’t want to ruin [defendant’s] life.” The
parents wanted defendant to apologize and make amends — though at trial the mother
conceded, “we made a wrong decision.”
When defendant and his wife visited around thanksgiving, the parents spoke to
him alone about their daughter’s disclosure. Defendant immediately said “Yeah, I did.”
They said he needed to apologize and to make it right for the victim. Defendant initially
agreed. But when he returned to Seattle, he called and said he couldn’t remember the
details of what he did, and he didn’t want to apologize for something he couldn’t exactly
remember. He asked for their patience while he saw a therapist.
The parents contacted defendant every two weeks, and defendant repeated that he
was working on it and asked them to be patient.
Nine months later, after the first victim turned 18, defendant told the parents, “you
know, now that [the first victim] is 18, you can’t go to the police on her behalf anymore.
I know she’s not going to do it and there’s nothing you can do.” The parents did not
speak to defendant for a year.
2
In 2013, the second victim was having trouble at home. She wrote about suicide
and cut and burned herself. She left her high school after being caught drinking, went to
a charter school, and then in May 2015 was sent to an out-of-state boarding school after
suicide implements were found in her bedroom.
When the parents went to visit in February 2016, the boarding school director told
them there was something they needed to know. The second victim told them defendant
had done the same thing to her that he did to the first victim.
The parents flew the second victim home and went to the Sheriff’s department.
The mother testified that they went to the police this time because “[w]e finally absorbed
the fact that he’s a predator.”
The mother testified to receiving emails threating disinheritance from her parents
if the girls continued with the investigation and testified. A letter from defendant said
they wouldn’t see their grandchildren because they wouldn’t drop their attempt to get him
to apologize and make things rights. A letter from her father (the grandfather) said what
happened, happened, and cannot be changed; everyone should move on.
The Father’s Testimony
The father provided substantially similar testimony. Defendant was a difficult
teenager — he would not want to do his schoolwork and was unkind to his younger
siblings. When the parents were out, defendant was put in charge of the younger
children. Defendant left for college in the fall of 2005 and got married three years later.
In 2011, the first victim disclosed the molestation to a teacher. She subsequently
told her parents defendant had molested her.
They decided to handle it in the family and contacted a therapist. They also
confronted defendant when he visited in November 2011. Defendant admitted the
molestation, and they told him to make amends. They did not, however, call the police.
But in December 2011, Child Protective Services (CPS) contacted the father, and he told
them his daughter had disclosed being molested by her brother.
3
The parents continued to reach out to defendant, who “kind of stalled us.” When
the first victim turned 18, defendant said he no longer had to apologize. He subsequently
made clear he did not want his parents to bring up the subject and threatened them with
not seeing their grandchild.
The father also testified that the second victim had “significant problems” and left
her high school after “things fell apart.” They put her in a charter school and then
boarding school after finding poison, nooses, and razor blades in her room.
When they visited her nine months later, they met with her and the boarding
school director. The second victim said defendant had molested her. The father testified,
“then a lot of things made sense.” They flew home and went to the sheriff’s office the
next day. On the way home, the second victim was happy to see her parents and happy to
be coming home.
At the sheriff’s department, the parents gave a statement to a deputy and the
second victim separately gave one. But the first victim was not interested in involving
law enforcement.
The father testified the disclosures created fractures in the family: “I have no
relationship with my parents, with my wife’s father.” In May 2016, they received a letter
from the grandfather that said for the good of the family, the girls should refuse to testify.
The grandfather also threatened to go to the newspaper and the father’s work and smear
the father’s reputation.
The father also testified that the second victim, who was currently living with the
parents, told them she was going to recant.
The First Victim’s Testimony
The first victim was 24 at the time of trial. She testified that starting when she was
“eight or so,” defendant, who is seven years older, would take her upstairs to his room
and tell her to undress. He would remove his shorts and touch her vagina with his hands
and penis. This happened when their mother was sleeping, their father was at work, and
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defendant was left in charge.
She couldn’t remember how defendant got her to come to his bedroom the first
time. But subsequent times, he would threaten to hit her or beat her up. He also
threatened to hurt her or her dog if she said anything.
She testified the molestations were not “super frequent,” but “frequent enough.”
Asked if it happened more than 10 times, she testified “I think so.” The molestations
ended sometime before defendant left for college.1 She did not know her younger sister
was also being molested.
The first victim described her family and home life as dysfunctional and chaotic.
Her parents fought, and her mother and defendant argued and fought “a lot.” The first
victim was not close with defendant: “We had times that we could laugh or joke about
something, but for the most part, he picked on me a lot.” Defendant would hit her and his
younger brother.
She wasn’t close with her parents and did not feel she could go to them with
problems. Her mother was “always angry about something.” She felt afraid of her
mother, who “would tell us how to behave and what would happen if we didn’t.” And
when she told her father that defendant would hit us, “he didn’t really do anything.”
In high school, she was depressed and drank, cut her wrists, and took pills.
Towards the end of her junior or beginning of her senior year, she told a bible class
teacher what defendant did. The teacher said she needed to tell her parents. She initially
resisted, but eventually did. Her mother said, “we don’t want [defendant] to get in
1 The first victim testified that she had told an officer that the molestations continued
until defendant went to college, but her mother had told her to say that because the
second victim had also said it. Also, the mother said, “you should put it in there because
if it did happen after he is 18, he should be held accountable.” Ultimately, the first victim
testified that “I can’t say for sure that it did happen until he went to college, and I can’t
for sure say it didn’t happen until he went to college just because I never made a land
marker of when it stopped. I just knew it had stopped.”
5
trouble.” The first victim testified that around that time, defendant had been threatening
their mother with not seeing the grandkids, and “I think that was the big factor in not
wanting to upset him.”
She also told a school counselor defendant had touched her inappropriately for
three months. Though she testified that she had minimized the time span “so it wouldn’t
blow up.”
The counselor contacted CPS, and a social worker visited the school. The first
victim told the social worker she didn’t want to talk about it. Her mother had told her not
to tell the whole truth to CPS. 2
At some point, the parents confronted defendant. She later learned that they had
planned to have defendant apologize. But defendant never “owned up to it” or
apologized.
At another point, her mother told her the second victim had also been molested by
defendant. The first victim spoke with law enforcement in 2016. She testified her
mother coerced her into telling the police what happened: “She basically put a ton of
pressure on me to go to the police with my sister and share what happened, implying
things like that I would be cut off and . . . wouldn’t have any support if I didn’t.”3
2 The mother testified to no memory of telling the first victim to minimize what she said
to CPS. But on cross, when asked, “So by telling [the first victim] that she could say
whatever she wanted to say, didn’t you know and wasn’t that a signal to [the first victim]
to say nothing?” She testified, “I can see how it would be viewed that way and that was
wrong of me and [the father].”
3 Also before trial, the first victim texted defendant’s wife, stating: “I’m going to shut
down every question at the trial and tell them point blank it was because of my mother’s
coercion,” and, “I will help you sue her [the mother] when this is over.” About the text,
she testified: “I had just been kicked out of my parents’ house, and I was upset at my
mom for the hurtful things she said to me as she was kicking me out, and I basically was
thinking I don’t want [defendant] to go to jail. So I’m going to do everything I can to
6
She also testified that in early 2016, she had been asked by a cousin (who shortly
thereafter passed away) to tell defendant “hello” and that he loves him. When she called
defendant to pass along the message, defendant told her he was sorry for anything that he
might have done to hurt her. She didn’t ask for clarification.
Another time in 2016, the first victim spoke with defendant’s wife over Skype and
told her what defendant had done. Toward the end, defendant joined the conversation. In
mid-2016, she received an email from defendant’s wife, expressing her dismay about
going to the police, saying if defendant went to prison, her son would grow up without a
father.
Also in 2016, two grandparents and several aunts and uncles emailed and called,
pressuring her to recant. A phone conversation she had with her grandfather is discussed
in more detail, post.
The High School Bible Class Teacher’s Testimony
The high school bible class teacher testified that the first victim told him she had
been sexually abused by defendant. She said it had gone on since she was eight until she
was 12, and that was the reason for her depression and drinking.
The teacher called CPS, testifying, “I’m under legal obligation to do so, and so I
had to have a conversation with my superintendent and administration . . . .” He also
encouraged the first victim to talk with the school counselor. The first victim, however,
said she didn’t want to tell her parents. The teacher described the parents as “angry and
abusive in that relationship.”
The teacher also had defendant as a student in 2006. Once defendant came to him
after class and asked about forgiveness, saying “you don’t understand what I’ve done or
how bad I am.” The teacher testified, “I had no idea if it was referring to anything.”
keep that from happening. But then after the anger passed, I kind of realized I still had a
responsibility to what happened to me to speak the truth.”
7
The High School Counselor’s Testimony
The counselor testified that the first victim was referred to her by the bible class
teacher in late 2011. She understood that the first victim had disclosed being molested by
her brother and that CPS had been contacted. Eventually, the first victim disclosed the
molestation to her. She said she had been molested for three months during the summer,
when she was eight and defendant was 18.
The first victim also said that her mother had told her to lie to CPS. The mother
wanted to protect defendant’s reputation and didn’t want to be cut off from future
grandkids.
The counselor had also counseled the second victim, who was cutting herself,
suffering from an eating disorder, and posting provocative pictures online. At some point
the second victim discovered what had happened to her sister, and the counselor made a
note in early 2013 that she was “still processing what happened between [defendant] and
[the first victim].” The counselor explained, “She wasn’t really wanting to talk about it.”
When the counselor asked the second victim if anyone had touched her inappropriately,
she said no and that she didn’t want to talk about it.
The Second Victim’s Testimony
The second victim was 19 at the time of trial. She testified that nothing
inappropriate happened between her and defendant, explaining that “my sister had
already told my parents, and . . . I didn’t want to talk about what was going on with
myself and my own issues, so I piggybacked on her problem, and that was awful of me.”
She testified that when the first victim was 17, the first victim told her and their
parents that defendant had molested her. The second victim did not disclose also being
molested because, as she testified, nothing had happened to her.
She also testified that during high school she suffered from depression, had an
eating disorder, and was cutting herself. She was expelled in her sophomore year for
drinking. She began an independent study program and then went to an out-of-state
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boarding school in May 2015. Her parents took her to boarding school under the guise of
visiting a sibling but ended up dropping her off. She testified that “hurt a lot.” She was
there for nine months and had nightmares, anxiety attacks, and long crying spells, though
“more towards the beginning.”
Around October 2015, she said to the director of the boarding school, “why me,”
and “I can’t live like this.” She also said defendant had hurt her and that she couldn’t
stop reliving her brother’s room and all he did to her there. She testified, however, “that
wasn’t true what I told her.” She explained, “I was going through a lot of stuff, and I
didn’t want to tell her what I was going though, and so I — I am very sorry for this now,
but I pinned it on something that was already going on with my sister, and I regret that.”
The director told her she had to tell her parents and she did not want to because, as
she testified, “It wasn’t true.” But when her parents came and she met with them in front
of the director, she told them defendant had molested her. The parents pulled her out of
boarding school and brought her home.
They went to the sheriff’s office the next day and spoke to a deputy. She testified,
“I told the deputy what I had said happened, but it did not happen.” She also testified that
she thought up, on the spot, the details of the molestations and defendant’s threats to kill
her cat.
She later met with a detective. The detective read her the statement she gave to
the deputy, and she confirmed everything was true except for her birth date. She
testified, however, that she was lying.
Sometime before talking to the detective, she Skyped with the first victim and told
her about what had happened to her. Her sister was upset and crying, and said, “I’m so
sorry, I’m so sorry.” The first victim flew home to see her.
The second victim also testified she could not remember if defendant had babysat
her and her siblings when her parents were out, and she denied that defendant had picked
on her. She denied her homelife was chaotic or dysfunctional, and testified she got along
9
with her parents and could talk to them. She denied her depression had to do with her
homelife, or with defendant: “I had been picked on at school, but nothing other than
that.”
She testified that she did not tell anyone she had falsely accused defendant, until a
few weeks before trial when she contacted the prosecutor’s office and told her parents she
had lied.
The Boarding School Director’s Testimony
The director of the boarding school testified that when the second victim came to
the school, the director had been told her sister had disclosed being molested and was
suicidal, and they thought that perhaps the same thing had happened to the second victim.
At the boarding school, the second victim started having nightmares, and would
say, “I keep reliving it,” but would not explain. She also had panic attacks and would
start crying and shaking suddenly.
Right before her parents were scheduled to visit, the second victim told the
director that she kept reliving what happened in her brother’s bedroom and said he had
not only molested her sister, but her as well. The director told her she needed to tell her
parents. The second victim said she didn’t want to be treated differently; she didn’t want
to be treated like her sister.
When the parents arrived, the director told them the second victim had something
to say. The second victim then disclosed defendant had molested her.
The Deputy’s Testimony
The deputy testified that she took a statement from the second victim, who
reported defendant had molested her since she was three years old. The second victim
couldn’t recall the details of the first incident but recalled her father was working, her
mother was napping, and defendant was watching her and her siblings in the early
afternoon. Defendant was then a teenager and a lot bigger than her. Defendant grabbed
her arm and took her upstairs to his bedroom. She didn’t know why he seemed angry.
10
Upstairs, he closed the door and “threw her on his bed.” He got on top of her and
said, “if you fight, it will make it worse.” He held her arms above her head, then opened
her knees with his. He then pulled down his pants and put his penis inside her.
When she tried to scream, he put his forearm over her mouth and nose, pushing
down hard. Defendant threatened to kill her cat if she said anything or didn’t do
everything he said. He then put his fingers in her vagina.
He tried to kiss her but stopped when she tried to bite him. He told her he would
kill her if she didn’t stop fighting.
She said the abuse went on for the next three years, occurring approximately two
to three times a week. She also said defendant would frequently babysit her and her
siblings. She did not know that defendant was also abusing her sister. But she said at
times defendant would take her older sister to a different room.
The Detective’s Testimony
The detective testified that she interviewed both victims. The detective’s February
2016 recorded interview with the second victim was played for the jury. In the interview,
the detective asked the second victim’s age and she responded that she was turning 17
soon, adding, “so that’s kinda like the reason — because . . . when it happened to my
sister and my parents found out when she was 17… [¶] [defendant] . . . was like, ‘Oh
just, um, I’ll make it right somehow’ until she turned 18 and then he was like, ‘Well,
joke’s on you.’ ” She also said the first victim was “scared of him so she doesn’t want to
[press charges], adding Like she wants to. I know because I feel the same way.”
In the interview, the detective read the deputy’s report to the second victim. The
victim confirmed her statements to the deputy were correct.
The victim also described the last time defendant molested her, she was playing
outside, and defendant came out and asked her to help him pack. She protested that he
wasn’t leaving for a month, but he said, “Just come help me anyway.” “I had to go
because of his voice,” she explained, “I knew if I went what would happen and I knew
11
what would happen if I didn’t go . . . .”
He locked the door to the house. In his bedroom, he took off her shorts and
underwear and put his fingers in her vagina. He put his mouth on her vagina, but she
kicked him. He also put his penis in her vagina. At the end he said, “ ‘Remember if
anyone ever finds out what’s gonna happen to you and what’s gonna happen to me.’ ”
He then pulled up his pants, walked out and slammed the door. She waited five to ten
minutes before leaving the room.
She also told the detective that defendant never punched her, but he had grabbed
her in a way that left a bruise, and he wiped boogers on her. But “[h]e was worse about it
to my sister.”
Verdict and Sentencing
The jury found defendant guilty of five counts of lewd or lascivious acts by means
of force, violence, duress, menace, or threat (Pen. Code, § 288, subd (b)(1)), with a
finding of substantial sexual conduct (Pen. Code, § 1203.066, subd (a)(8)). Two of the
counts pertained to the first victim, three to the second. The jury also found the charged
offenses were committed against more than one victim (Pen. Code, § 1203.066, subd
(a)(8)). But on two of the counts of lewd and lascivious conduct on the first victim, the
jury acquitted.
The trial court imposed an aggregate 30-year term consisting of five full-term
consecutive middle terms.
DISCUSSION
I. Admission of Asserted Hearsay and Section 352 Objections
On appeal, defendant first contends the trial court abused its discretion in
admitting certain hearsay evidence: (1) the recording of the detective’s interview with
the second victim; (2) the recording of the first victim’s call to the grandfather; (3) the
grandfather’s trial testimony; and (4) the first victim’s statements as presented through
other witnesses. Defendant styles this contention as a hearsay objection, but the bulk of
12
the claim is that the evidence should have been excluded under Evidence Code Section
3524 because the probability of undue prejudice substantially outweighed probative
value.
We conclude these challenges are forfeited for failure to raise specific objections
in the trial court.
A. The Detective’s Interview with the Second Victim
Defendant argues that only parts of the second victim’s recorded interview with
the detective were inconsistent with her testimony, and thus the remaining portions
should have been excluded. We conclude this challenge is forfeited.
1. Additional Background
After the second victim testified disclaiming the molestation, and before the jury
heard a recording of her interview with the detective, defense counsel objected on
hearsay grounds: “I would like to object as hearsay on the grounds that . . . there are
parts of it that [are] inconsistent, but in its entirety it should not be admitted, and I submit
on that.”
The trial court responded: “I assume there are going to be both prior inconsistent
as well as consistent statements since she is denying in totality that any of the events
happened. I assume that all of the interview . . . is going to be relevant to show her state
of mind then, her demeanor, the fact that she had made inconsistent statements [prior] to
trial, but that they were consistent with statements that she made during her disclosure.”
The court continued: “if there’s something particular you wanted me to look at
that you thought was prejudicial or really out of bounds, I’d certainly consider that. But
based on what I know and what I have seen in the trial, it seems to me that the entirety of
the statement would be relevant, not only for consistency and inconsistency, but for
4 Undesignated statutory references are to the Evidence Code.
13
demeanor and the nature of that disclosure to the detective. So I would be prepared to
allow it in its entirety without further specific objection at this point.” (Italics added.)
Defense counsel responded: “Yes, your Honor, thank you.”
Just before the recording was played, defense counsel renewed the objection: “I
would just restate our previous objection,” but he offered no specific challenge to any
portion of the interview.
2. Analysis
On appeal, defendant identifies several portions of the recording that he contends
are not inconsistent with the second victim’s testimony and far more prejudicial than
probative.5 But the failure to raise those challenges in the trial court forfeits them on
appeal.
No verdict can be set aside based on the erroneous admission of evidence —
including under section 352 — unless the record shows an objection “mak[ing] clear the
specific ground.” (§ 353; People v. Harrison (2005) 35 Cal.4th 208, 230.) And here,
defense counsel offered only a blanket objection to the recording.
Defendant, however, maintains that “his objection was clearly enough to bring the
issue to the trial court’s attention.” We disagree. The trial court indicated it would
consider a specific objection “if there’s something particular [counsel] wanted” the court
to consider and then ruled it would allow the evidence in the absence of a “specific
objection,” and despite this, counsel did not identify any specific portion of the interview
and state specific grounds for exclusion.
5 Defendant belatedly takes issue with (1) the detective’s statements to the second victim
that defendant “took all your power away,” “needs to go to jail,” and “knew what he was
doing”; (2) the second victim’s statement that she had heard defendant may have
molested his cousin; and (3) the speculation that defendant was a danger to other
children, including that it was “kinda scary” that he worked with kids.
While some portions of the recording may have been objectionable, the evidence of
guilt rendered the erroneous admission of hearsay evidence harmless. (See fn. 9, post.)
14
An objection must “fairly inform the trial court, as well as the party offering the
evidence, of the specific reason or reasons the objecting party believes the evidence
should be excluded, so the party offering the evidence can respond appropriately and the
court can make a fully informed ruling.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
Defense counsel’s blanket, nonspecific objection did not do this, and that failure deprived
the prosecution of the opportunity to respond. (Id. at p. 434 [objecting “ ‘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’ ”].) Moreover, “[a] party
cannot argue the court erred in failing to conduct an analysis it was not asked to
conduct.” (Id. at p. 435; see also People v. Holford (2012) 203 Cal.App.4th 155, 169
(Holford) [applying section 353 to claims of error for failure to exclude evidence under
section 352].) Thus, the challenge is forfeited.
B. The Recording of the Phone Conversation with the Grandfather
Defendant next challenges the admission of a recorded phone conversation the
first victim had with her grandfather. Defendant argues its admission was an abuse of
discretion because the recording was hearsay and the danger of undue prejudice far
outweighed any probative value.
We conclude that portions of the conversation were relevant and any claims
concerning objectionable portions of the conversation are forfeited.
1. Additional Background
a. The In Limine Motion
The defense moved in limine to exclude the grandfather as a witness, explaining
the grandfather had, in a phone call, tried to dissuade the first victim from testifying.
Counsel argued: “this family has . . . a dozen people like [the grandfather] always talking
to each other about what someone should do and what someone shouldn’t do. There is
no link between that conversation and [defendant], and if the Court were concerned
whether there was a link, I would ask for a [section 402 hearing] on it.” Counsel added
15
that it was unclear who called who. 6
Counsel also objected that the statements in the recording were hearsay and
irrelevant, but he did not specify any particular statements. He also noted that the
grandfather had Fifth Amendment rights regarding possible attempted witness dissuasion.
Counsel also argued that no statement from the grandfather established that defendant
made any admissions to him.
The court asked if the recording might go to the victim’s state of mind: “If she has
a blood relative saying drop it, and she is still willing to come and testify, isn’t there
relevance there at least to her state of mind?” “[S]houldn’t the prosecutor at least be able
to ask . . . did anybody ever tell you to drop it? [J]ust like your sister.” “It seems to me,”
the court continued, “that . . . the heart of the defense is going to be they are making this
up, mom is pulling the strings, and one of the sisters . . . says I’m out. [I]sn’t it relevant
for the trier of fact to know that [the first victim’s] receiving pressure from the outside to
recant like her sister.”
The trial court agreed defendant could be prejudiced if the jury believed he was
behind the grandfather’s pressuring, but such prejudice could be cured, the court
explained, by telling the jury or stipulating that “there’s no evidence that the defendant
himself . . . had this in mind. This was strictly grandpa’s idea.”
The prosecutor also told the court the grandfather had said defendant regrets what
he did. Defense counsel did not specifically object to those statements as unrelated to the
credibility of the first victim or her state of mind. Nor did he register a section 352
objection. The trial court, however, suggested they would need to have an Evidence
Code section 402 hearing regarding any purported admissions defendant made to the
grandfather.
6 The prosecutor confirmed the first victim called the grandfather.
16
The following week, defense counsel asked for clarification of the court’s ruling
concerning the recorded phone conversation. The court reiterated that the recording was
relevant and admissible as to the first victim’s state of mind, regarding the provision of
testimony. Stating he was not sure if he “sufficiently articulated” his objection, defense
counsel again argued the problem with the recording was that “it might create an
implication that somehow [defendant] had been the initiation or the genesis of that
dissuasion by [the grandfather]. There is no evidence in our discovery to show that that
is true.” Counsel complained he would not be able to call the grandfather to testify why
he engaged in the dissuasion because the grandfather could assert his right against self-
incrimination, and the defense had no authority to immunize him. “That’s the only thing
I forgot to mention is that the implication is that the dissuasion might have come from
[defendant].”
The trial court noted that had been argued during the in limine hearing the
previous week. The court added that it would instruct the jury, “that they are to take that
call only to consider the effect of the state of mind of the witness and that there is no
evidence and they should not consider that that in any way was at the prompting of the
defendant.”
In rearticulating his objection, counsel never mentioned the portions of the
conversation where the grandfather implied defendant’s guilt, such as grandfather’s
statements to the first victim indicating defendant regrets what he did; nor did counsel
pose a section 352 objection. Consequently, the court was not called upon to make a
ruling on that part of the recording. 7
7 The record does not disclose if the parties asked the trial court to listen to the recording
of the phone conversation at any point prior to ruling on it; nor does it appear that the
court did so.
17
b. The Recording
Later, the first victim testified in front of the jury that her grandfather on her
mother’s side had told her father to get her to drop the charges. She subsequently had a
phone conversation with that grandfather, which she recorded at the detective’s behest.
In the recording, played for the jury, the grandfather repeatedly asked the first
victim to drop the charges saying, among other things: “I think [defendant] has suffered
every day,” and, “[i]f [defendant] goes to prison he’s going to be beaten and possibly
killed, and he’s going to be sodomized frequently.” He told her that inmates in prison do
not like child molesters and the guards provide no protection. He also told her he had
written her parents a letter stating “in this situation there were no winners. There was
only losers. [The first victim’s] a loser. [The second victim’s] a loser. And [defendant]
is a loser also. There are no winners. There’s only losers.”
The grandfather also implied the allegations were true, stating: “I think
[defendant] has regrets that’ll never go away”; “there’s things in our lives that we wish
we could take back and we could change, but we can’t”; “I think [defendant] made a
terrible mistake”; “I know he threatened you and you being a child, you were afraid.”
“He did a bad thing but he’s not a bad person”; and “my heart goes out to you and [the
second victim]. I didn’t know what was happening.”
The first victim, in turn, maintained her desire for justice and to testify, stating:
“He’s my brother but I think he should be held to the same standard -- that other people
do . . . .” and “He’s my brother but . . . such evil has occurred that . . . I do feel like he
needs to be held accountable for it.”
She asked the grandfather, “Are you worried about what he could and might be
doing to other kids too?,” who replied: “No. It won’t happen again.” But when she said,
“I would worry everyday about the possibility of something happening to some other
child,” the grandfather responded, “I think that’s a fair statement.”
18
At one point, the first victim said: “you didn’t live in the house when [defendant]
would beat up me and [my brother] just for fun and laugh at us when we had bruises . . .
on our face and [my brother] would just sit there and take it . . . . And you didn’t see
when I as a six and seven-year-old would have to jump in between [them] and just, kind
of, curl up in a ball in order to protect [my brother] and take [defendant’s] punches. You
didn’t hear his laugh as he enjoyed what he was doing. And . . . you didn’t see and
experience the countless, countless times that he abused me and [the second victim] in
such horrific ways that I think sometimes, especially as someone who is your blood, it
can be easier to think of them as better . . . than they are.”
During a break in the playing of the recording, defense counsel stated: “I was
thinking at the end of the tape we should admonish the jury . . . . [The grandfather’s]
theories are not relevant. What is relevant is the impact that that had on [the first victim].
Because otherwise it sounds like he has some special knowledge that [defendant] is guilty
and that really was the basis of our objection.” (Italics added.) The court agreed and
thereafter instructed the jury: “During this phone call . . . [the grandfather] offers
opinions regarding a variety of subjects. His opinions are not relevant and should not be
considered as proof of any element of the charged offenses. The evidence is being
offered for the sole purpose of its effect, if any, on [the first victim].” The trial court
gave a similar admonition as part of the final instructions to the jury. 8
8 The trial court gave the following further admonition as part of the final instructions:
“The opinions and theories of [the grandfather] cannot be considered for the truth of the
matter. . . . [The grandfather’s] opinions are relevant only to [the first victim’s] state of
mind. You cannot consider his opinions as evidence of anything else. You cannot
consider them as admissions of the defendant, as they were not offered for that purpose,
and there was no testimony from any witness that would allow you to infer that.” We
presume the jury followed these instructions. (People v. Davis (2005) 36 Cal.4th 510,
537.)
19
2. Analysis
Defendant argues the admission was an abuse of discretion because the recording
was hearsay, and its undue prejudice far outweighed its probative value. He also argues
the first victim’s state of mind was not at issue, reasoning that the first victim’s
willingness to testify falsely despite pressure from family members was consistent with
the defense’s theory of the case. In his reply brief, defendant acknowledges cases hold
that a witness’ fear of recrimination can be relevant to assess the witness’ credibility, but
maintains this does not permit the admission of “an entire recorded hearsay conversation
replete with prejudicial comments simply because the conversation could be construed as
creating such a fear.”
We disagree that the victim’s state of mind regarding testifying was not relevant.
“ ‘A witness who testifies despite fear of recrimination of any kind by anyone is more
credible because of his or her personal stake in the testimony.... [¶] Regardless of [the
source of the threat], the jury would be entitled to evaluate the witness’s testimony
knowing it was given under such circumstances.’ ” (People v. Merriman (2014) 60
Cal.4th 1, 86, quoting People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369, italics
added.) Thus, “a trial court has discretion, within the strictures of Evidence Code section
352, to permit the prosecution to introduce evidence supporting a witness’s credibility
even on direct examination, so long as the prosecution reasonably expects the defense to
attack the witness’s credibility during cross-examination.” (Merriman, at p. 86.) The
first victim’s credibility was unquestionably at issue. Accordingly, here, it was proper for
the prosecution to ask the first victim about family members, including the grandfather,
that pressured her not to testify and to play those portions of the recorded conversation
with her grandfather related to that pressure.
The People maintain that any challenge as to undue prejudice is forfeited for
failure to object on that basis. We agree. After much of the recording was played for the
jury, counsel belatedly articulated as grounds for the objection that the grandfather’s
20
statements sounded like “he has some special knowledge that [defendant] is guilty and
that really was the basis of our objection.” Despite the claim “that really was the basis of
our objection,” counsel never made this specific objection before, and when he
mentioned it on this occasion after part of the recording had been played, he did not cite
section 352; nor did counsel ever suggest an evidentiary alternative under section 352,
such as redaction of the specific statements that implied defendant’s guilt. Failure to do
so forfeits the claim on appeal. (Holford, supra, 203 Cal.App.4th at pp. 169-170 [noting
that a timely and specific objection is required to preserve a section 352 claim on appeal
and holding that “when making a section 352 objection grounded upon the existence of
an evidentiary alternative [e.g., redaction], the requirement in section 353, subdivision
(a), to state specific reasons for an objection necessarily requires the objecting party to
identify the evidentiary alternative with specificity”].)9
9 We also note that, although the grandfather’s statements implying defendant’s guilt
were objectionable, defendant was not prejudiced by their admission. Nine witnesses
testified to a consistent timeline related to the allegations: the victims were molested at a
young age; they separately disclosed five years apart, both while in high school, and both
while suffering from depression; they both disclosed to multiple individuals who testified
to hearing those disclosures; while the second victim maintained she had been lying, her
testimony corroborated the timeline, and did not in any way suggest the first victim was
lying; given the family pressure brought to bear upon the first victim, a reasonable jury
could have inferred that the second victim’s recantation was the result of similar pressure;
despite the family pressure, the parents both testified that defendant admitted molesting
the first victim; and the teacher’s testimony lent credence, recalling that defendant had
said to him, “you don’t understand what I’ve done or how bad I am.” There was no
reasonable probability that defendant would have obtained a more favorable result had
the objectionable portions of the recorded statement been redacted. (Strickland v.
Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674]; see also (Harrington v.
Richter (2011) 562 U.S. 86, 104 [178 L.Ed.2d 624] [“It is not enough ‘to show that the
errors had some conceivable effect on the outcome of the proceeding’ ” and “the
likelihood of a different result must be substantial, not just conceivable”].)
21
C. The Grandfather’s Testimony
Defendant also argues the court compounded the error of admitting the first
victim’s phone conversation with the grandfather by permitting the prosecution to call the
grandfather to testify and question him about his statements on the recording. We
conclude the contention is forfeited.
1. Additional Background
Later in the trial, after the recording of the phone conversation was played for the
jury, the prosecution called the grandfather to testify. The prosecutor’s questions elicited
that the grandfather had had 15 visits with defendant between 2015 and trial. Also the
grandfather had helped defendant through the proceedings, financially and with advice.
The prosecutor asked the grandfather whether he considered himself a “Christian
man,” whether he had imparted the ideas of “Christian forgiveness” on his children, and
whether he believes in the criminal justice system. She also asked if forgiveness
outweighs being held accountable in a court of law. The prosecutor also questioned the
grandfather at length about his letter and the phone conversation: “did you want to hold
the family together so much that you attempted to get [the first victim] to drop the
charges?”
During a break, defense counsel asked the court to “shut down” the testimony and
admonish the jury to disregard it. He cited the closeness between the grandfather and
defendant, “so it’s really [section] 1101 on [defendant], unless [the grandfather] were to
say [defendant] asked me and urged me to try to dissuade, which he hasn’t done. And I
have made this argument before, Judge.”
The court explained “I’m confident about my prior ruling,” noting the
grandfather’s efforts “to attempt to, at least in the prosecutor’s view, to dissuade the
witness [the first victim] from testifying” is relevant to the victim’s state of mind. But
the court noted it would be inappropriate for defendant’s character to be impinged by the
grandfather’s, thus a cautionary instruction had been given and, the court added, “I would
22
be happy to give another one . . . .” As noted, the trial court gave an instruction further
admonishing the jury as to the limited purpose of the testimony as part of its final
instructions. (See fn. 8, ante.)
On cross-examination, the grandfather testified the writing and “meddling” he did
was not encouraged or requested by defendant. The grandfather said he did it, “[t]rying
to hold our family together.”
2. Analysis
On appeal, defendant challenges specific portions of the elicited testimony: (1)
the prosecutor asking if the grandfather considered himself a Christian in order to
contrast his beliefs with his conduct; (2) questioning his concept of forgiveness and how
it conforms to the law; (3) questioning his support for defendant, “deftly associating
[defendant] with [his grandfather’s] conduct”; (4) probing the grandfather’s out-of-court
statements from the recording and in a letter to the father; and (5) offering questions that
were “thinly disguised denunciations.” He argues that the grandfather had no relevant
evidence to offer, his attempt to dissuade the victim was already in evidence, and his
testimony could only serve to unfairly prejudice defendant.
Like the recorded phone conversation between the grandfather and the first victim,
portions of the grandfather’s testimony had some relevance to the victim’s credibility.
And like the phone conversation, some of the testimony was properly subject to a section
352 objection. But again, no objection was made to specific portions of the testimony
and no section 352 object was raised, which forfeits the challenge on appeal. 10
10 We again note that given the overwhelming evidence supporting the guilty verdicts,
defendant was not prejudiced by the failure to object to specific portions of the testimony
or make a specific section 352 objection. (See fn. 9, ante.)
23
D. The First Victim’s Other Hearsay Statements
Defendant next challenges the admission the first victim’s out-of-court statements
as presented through various witnesses. He argues they were inadmissible for the first
victim’s state of mind because her state of mind was not relevant, nor were they
admissible as consistent statements under section 791, because it was the defense’s
theory that the first victim had a motive to lie from the start of her accusations.11 He also
argues the repeated invocations of the first victims’ disclosures were substantially more
probative than prejudicial.
The People again respond that the contention is forfeited for failure to object to the
challenged testimony in the trial court.12 And we again agree with the People. The
failure to object to inadmissible hearsay evidence at trial forfeits the claims on appeal.
(People v. Eubanks (2011) 53 Cal.4th 110, 142; § 353.)
II. Evidence of a Prior False Allegation
Defendant next contends the trial court abused its discretion “by dictating which
witness” defendant must call to admit impeachment evidence. The record does not
demonstrate that the trial court abused its discretion in precluding the defense from
presenting evidence of a prior false allegation through the testimony of the proffered
witness.
11 Section 791 subdivision (b) permits the introduction of consistent statements where:
“An express or implied charge has been made that his testimony at the hearing is recently
fabricated or is influenced by bias or other improper motive, and the statement was made
before the bias, motive for fabrication, or other improper motive is alleged to have
arisen.” (Italics added)
12 Although the Attorney General asserts forfeiture, defendant does not address this
forfeiture assertion in his reply brief.
24
A. Additional Background
The defense moved in limine to admit evidence of an alleged prior false
accusation of rape and sexual misconduct by the first victim. The evidence, as proffered,
was that between October 2016 and October 2017, the first victim had a relationship with
a married pastor. Toward the end, the first victim told the pastor’s wife she loved the
pastor and texted her a picture of his genitalia. For several weeks, she implored the
pastor to leave his wife, implying she was a danger to herself if he did not (the pastor’s
home was also vandalized). When the pastor declined, she sued him, claiming he raped
her, coerced her into sex, and hit her. 13 Both sides sought temporary restraining orders.
The defense sought to impeach the first victim by showing she had accused the
pastor of rape and assault after he refused to leave his wife. At the hearing, the trial
court, citing People v. Winbush (2017) 2 Cal.5th 402, 469 (Winbush), noted the prior
accusation of rape must be “shown to be false.” The court questioned if the defense
could make that showing through, as proposed, the testimony of pastor’s wife: “The only
way that a true false allegation can be proved is if the [the pastor] would be willing to
come into this courtroom and sit in that chair and say we had a consensual relationship, I
never forced her to do anything.”
Defense counsel countered that the first victim “came to [the pastor’s wife’s] front
door and told her they had a consensual sexual relationship. So we will prove it out of
[the first victim’s] own words to [the wife].”
The court responded that the first victim could have believed at that time the
relationship was consensual but later understood it was the product of coercion: “because
she is filtering that through, wait a second, he is a pastor. He’s 40 years older than me.”
13 The first victim’s civil complaint alleged the pastor “used emotional, verbal, and
physical force to coerce [her] into having sex with him on hundreds of occasions under
the guise that he was helping to heal her PTSD and trauma from childhood sexual abuse.”
25
The court went on, “here is the crux of it, the fact that the wife would say she told me it
was consensual, that does not in my mind get to the issue of whether or not it is a false
report of coerced sex.” The court noted, the wife “wasn’t there” and couldn’t testify to
how they interacted with each other, “[t]he only person who can speak to that is the
husband . . . . If you had that, that seems to me to be the type of evidence, the quality of
evidence that is required under [People v. Tidwell (2008) 163 Cal.App.4th 1447(Tidwell)] and Winbush.”
Later, after the prosecution closed its case in chief, defense counsel informed the
court that it had opted not to call the Pastor: “after meeting with [the pastor], I’ve come
to the inescapable conclusion that his credibility would be very difficult for this jury. [¶]
I think it would probably cast [the first victim] . . . in a very sympathetic light. . . . [The
pastor] would not be helpful for the defense.”
B. Analysis
Defendant argues that the trial court abused its discretion in conditioning the
admission of the false accusation evidence on the pastor testifying. He argues that
whether the pastor’s wife’s testimony sufficed to prove the accusations were false went to
the weight of the evidence, not admissibility. We conclude defendant has not shown that
the trial court abused its discretion.
“A prior accusation of rape is relevant to the complaining witness’s credibility, but
only if the accusation is shown to be false.” (Winbush, supra, 2 Cal.5th at p. 469, citing
Tidwell, supra, 163 Cal.App.4th at p. 1457, italics added.) As this court explained in
Tidwell, whether to admit such evidence is considered under the rubric of section 352.
(Tidwell at pp. 1456-1458.) As such, a false allegation’s probative value turns on the
proof that the prior allegation was in fact false. (Id. at p. 1458.) Further, establishing the
falsity of an allegation related to a past incident that never reached the point of formal
charges may consume considerable time and divert jurors’ attention from the case at hand
— another relevant section 352 consideration. (Tidwell at p. 1458.)
26
We review a trial court’s decision to exclude evidence of a prior accusation of rape
under 352 for abuse of discretion. (Winbush, supra, 2 Cal.5th at p. 469; Tidwell, supra,
163 Cal.App.4th at p. 1457.) An exercise of discretion in precluding such evidence will
be affirmed unless it was arbitrary, capricious, or patently absurd and the ruling resulted
in a miscarriage of justice. (Winbush, at p. 469.)
Here, we cannot say the trial court abused its discretion in excluding the testimony
of the pastor’s wife to prove a prior false allegation. As the trial court explained, the wife
knew little of the actual relationship between the pastor and the first victim. Though the
wife could repeat the victim’s statements professing love for the pastor and the
characterization that the relationship was consensual, such testimony would have
relatively low probative value as to whether the relationship was actually coerced. The
pastor’s testimony, by contrast, would go to the heart of that question. (See Tidwell,
supra, 163 Cal.App.4th at p. 1458 [Noting that “[a]lthough there was some evidence [the
victim] made inconsistent statements, there was no conclusive evidence that her prior
rape complaints were false” as “the defense was unable to obtain evidence from the men
that [the victim] accused, and inferences could be drawn either way from the
circumstances of the prior incidents and [the victim’s] statements concerning the
incident” (Italics added)].)
Defendant has failed to prove the trial court’s exercise of discretion in precluding
the wife’s testimony was arbitrary, capricious, or patently absurd and resulted in a
miscarriage of justice. Accordingly, we find no abuse of discretion.
III. Child Sexual Abuse Accommodation Syndrome
Next, defendant challenges the admission of testimony regarding Child Sexual
Abuse Accommodation Syndrome. We conclude this challenge is also forfeited.
A. Additional Background
The prosecution moved in limine to admit expert testimony “to dispel
misconceptions about child molestation,” averring that several myths would likely be
27
alluded to, including: (1) the victims’ failure to immediately disclose the abuse; (2) the
victims not appearing frightened, upset, or traumatized; (3) the victims continuing to
socialize with defendant; (4) the victims not knowing specific dates and times of the
molestations; and (5) the victims’ failure to protect themselves from being molested.
At the hearing, the trial court announced to the parties: “That brings us to the
Child Abuse Accommodation Syndrome.” The court asked defense counsel, “did you
want to object to or make any comment regarding [the expert’s testimony]?” Counsel
answered: “We would object and submit.”
The court responded, “[s]o this is pretty common now,” and citing People v.
Patino (1994) 26 Cal.App.4th 1737, 1744, which explained that Child Sexual Abuse
Accommodation Syndrome “testimony has been held admissible for the limited purpose
of disabusing a jury of misconceptions it might hold about how a child reacts to
molestation.” And according to the trial court, testimony explaining why a victim would
not immediately report was “an appropriate area for discussion.” The court then admitted
the expert testimony “for the limited purposes that the People have offered,” noting it “is
relevant, [and] will be helpful to the jury.”
Defense counsel offered no further objection and did not object when the
prosecution’s expert testified to Child Sexual Abuse Accommodation Syndrome.
B. Analysis
On appeal, defendant argues admitting the testimony was an abuse of discretion.
While noting such testimony is permissible in certain circumstances, he maintains those
circumstances were not present here. He argues the defense did not attack the victims’
claims based on their delayed reporting. Rather, the defense’s theory was that the
victims’ claims were the result of the mother’s influence. He also argues that neither
party articulated a basis to assume the jury would adhere to any myth based on the facts
of the case.
28
The people maintain the claim is forfeited. We agree. (See People v. Marks
(2003) 31 Cal.4th 197, 228 [“A general objection to the admission or exclusion of
evidence, or one based on a different ground from that advanced at trial, does not
preserve the claim for appeal”].) No argument now advanced on appeal was raised
before the trial court. Counsel’s blanket objection was insufficient to preserve them. 14
The contention is therefore forfeited.
IV. Cumulative Error
Defendant finally claims the above errors were cumulatively prejudicial. As we
have rejected every contention raised, we decline to find cumulative prejudice. We
therefore find no cumulative error.
14 Defendant maintains that he sufficiently objected because the prosecution “laid out the
relevant issues — including the potential prejudice of the evidence — in their motion in
limine,” and by objecting, he put the trial court on notice that he disputed the
prosecution’s arguments. Also, the trial court, “conducted an analysis of its own accord
based on the objection.” We disagree. The arguments raised on appeal were never raised
below. Thus, neither the prosecution nor the trial court had the opportunity to specifically
address them. And that the trial court “conducted an analysis” that peripherally relates to
an argument raised on appeal does not obviate trial counsel’s obligation to make a
specific objection.
29
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
30