People v. Castaneda-Prado ( 2023 )

Filed 8/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A164897
v. (Sonoma County Super. Ct.
CECILIO CASTANEDA-PRADO, No. SCR7368411)
Defendant and Appellant.
A jury convicted defendant Cecilio Castaneda-Prado of five counts of
committing a lewd act on a child under age 14, as well as allegations that the
charges involved multiple victims and substantial sexual conduct. The trial
court sentenced Castaneda-Prado to 125 years to life, consisting of five
consecutive prison terms of 25 years to life.
On appeal, Castaneda-Prado contends the court erred by excluding
evidence that one of the children (a girl referred to in these proceedings as
Jane Doe 2) believed that, by accusing Castaneda-Prado of sexual
molestation, she was helping her mother obtain a “U visa,” a type of visa that
can provide legal status for victims of certain crimes who assist in the
investigation of those crimes.1
1 A U visa is “a temporary nonimmigrant visa” that provides “legal
status for noncitizens who assist in the investigation of serious crimes in
1
We agree. Because the exclusion of this evidence violated Castaneda-
Prado’s right to confront a witness against him under the federal and state
constitutions (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; see Delaware
v. Van Arsdall (1986) 475 U.S. 673 (Van Arsdall)) and on this record cannot
be considered harmless beyond a reasonable doubt (Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman)), we will reverse the convictions and
sentences, and remand for a new trial.
I. BACKGROUND
A. The Evidence Presented at Trial
1. The Prosecution’s Case
Jane Doe 1 was born in January 2005, and Jane Doe 2 was born in
April 2005.2 They were close childhood friends. Castaneda-Prado’s family
was close with the girls’ families, and they sometimes spent holidays
together; the girls viewed Castaneda-Prado and his wife as parents or
grandparents. Castaneda-Prado and his wife lived with their two older
children in Santa Rosa. Castaneda-Prado’s wife and children often babysat
Doe 1 and Doe 2 at Castaneda-Prado’s home when the girls were in
elementary school.
At trial, Doe 1 and Doe 2 testified about incidents of sexual abuse by
Castaneda-Prado. Doe 1 and Doe 2 could not remember the specific dates or
times of the incidents, but they testified the abuse occurred when they were
which they have been victimized. (See 8 U.S.C. § 1101(a)(15)(U); [citation].)”
(People v. Morales (2018) 25 Cal.App.5th 502, 506.) “[I]nformation . . .
relat[ing] to an alien who is the beneficiary of an application for” a U visa is
generally confidential. (8 U.S.C. § 1367(a)(2); see Hawke v. U.S. Dept. of
Homeland Sec. (N.D. Cal., Sep. 29, 2008, No. C-07-03456 RMW) 2008 WL
4460241 at pp. **5–7.)
2 Doe 1 and Doe 2 were 16 years old and in high school at the time of
Castaneda-Prado’s trial.
2
in elementary school (which ended when they were age 12). Doe 1 believed
she was in fifth or sixth grade and was older than 8 or 9 when the incidents
occurred. Doe 2 believed she was around 8 or 9 years old and in third grade
when the incidents occurred.
One night, Doe 1 was sleeping on the living room floor at Castaneda-
Prado’s house when she awoke to Castaneda-Prado “[r]ubbing” “[t]he middle”
of her vagina with his fingers. Castaneda-Prado was on his knees in front of
Doe 1 rubbing the inside and outside of her vagina. Doe 1 had gone to sleep
under a blanket while wearing a dress and underwear, but she found the
blanket was no longer on her, her dress was pulled up, and her underwear
had been removed. Doe 1 did not understand what was happening. She
asked Castaneda-Prado what he was doing, and he said he was putting a
blanket on her. Doe 1 heard Castaneda-Prado’s son in the shower down the
hallway; Castaneda-Prado got up and left the living room when he heard his
son come out of the shower.
On another evening, Doe 1 was lying on Castaneda-Prado’s bed
watching television with a blanket over her when Castaneda-Prado started
rubbing her vagina on the outside. Castaneda-Prado was lying next to Doe 1,
and the bedroom door was closed. Castaneda-Prado had told Doe 1 to go to
his bedroom to watch television. Doe 1 did not understand what Castaneda-
Prado was doing, but she felt “scared” and “uncomfortable.” Doe 1 tried to get
away, but Castaneda-Prado grabbed her ankle “really tight” and pulled her
toward him. Doe 1 “struggled to get off the bed.” She managed to get away
and went into the bathroom.
On a different day, while Doe 1 and Doe 2 were staying at Castaneda-
Prado’s home, he told them to go watch television in his bedroom. Doe 1 and
Doe 2 went into the bedroom and sat on the bed with Castaneda-Prado. The
3
girls sat on either side of Castaneda-Prado; the bedroom door was closed and
locked. According to Doe 1, Castaneda-Prado told them they had to
“massage” him if they wanted snack chips. Doe 2 stated she was “[v]ery
sure” Castaneda-Prado did not threaten to withhold snack chips if she did not
go to his bedroom and massage him.
Castaneda-Prado pulled down his pants zipper and told the girls to
“ ‘touch’ ” or “grab” his penis. Doe 2 refused to touch Castaneda-Prado’s penis
with her bare hands, and he told her to get gloves from the bathroom, which
she did. Both girls testified they touched Castaneda-Prado’s penis. Doe 1
testified Castaneda-Prado pulled her hand toward his penis.
Doe 1 got off the bed and went toward the door while Doe 2 remained
under a blanket next to Castaneda-Prado. To Doe 1, Doe 2 looked
“uncomfortable” and like she “wanted to leave.” Castaneda-Prado touched
Doe 2’s thighs and vagina. Doe 2 was “confused” and “shocked”; she slid off
the bed and onto the floor. The girls left the bedroom and returned to the
living room.
Doe 1 eventually became scared to be alone with Castaneda-Prado
because she believed he would hurt her. She started putting a small pillow
between her legs when she lay down so she would know something had
happened if it was removed. Doe 1’s mother had given her an old cell phone,
and Doe 1 “would always keep the [phone’s] light on.”
Doe 1 and Doe 2 did not disclose the sexual abuse to anyone at the time
it occurred. They had agreed not to tell anyone, in part because their families
were close with Castaneda-Prado and his family and they did not want to
disrupt those relationships.
As Doe 1 got older, she felt depressed and ashamed about what had
happened. She started cutting herself. She “cut” classes at school and
4
started smoking marijuana to avoid thinking about it. At some point she
wanted to kill herself. Doe 1 began therapy sessions provided by her school.
She disclosed the sexual abuse to her school counselor and her mother. Doe 1
was “scared for what was gonna happen next.” Doe 1’s mother telephoned
Doe 2’s mother. When Doe 2’s mother asked Doe 2 if something had
happened to her, Doe 2 disclosed her version of the sexual abuse.
Doe 1 and Doe 2 later participated in forensic interviews arranged by
the police.
The police also arranged for Doe 1’s mother to initiate a recorded
pretext call with Castaneda-Prado. A recording of the call was played for the
jury and admitted into evidence. According to a transcript of the call,
Castaneda-Prado said “Well look, uh, I sincerely, I didn’t, I didn’t hurt your
daughter (unintelligible). Do you understand me? Maybe one day I did do
this. But, I didn’t (unintelligible). . . . Perhaps I wasn’t okay. I was drunk
(unintelligible). But I didn’t hurt her. I didn’t do (unintelligible). . . . [¶] I
regretted all of it because it was an accident.” Castaneda-Prado also said “I
didn’t hurt your daughter in a big way,” repeatedly apologized, and asked for
forgiveness from Doe 1, her mother, and God.
An expert testified about Child Sexual Abuse Accommodation
Syndrome. He testified that five “components” that appear frequently in
child sexual abuse cases are (1) secrecy, (2) helplessness, (3) entrapment and
accommodation, (4) delayed or conflicting disclosure, and (5) retraction or
recanting.
2. The Defense Case
The defense presented several witnesses, including Castaneda-Prado’s
family members and friends, who testified he was not the type of person who
would sexually molest children. Some of those witnesses also testified that
5
Doe 1 was or had been manipulative and was known to lie, and that Doe 2
was a follower and would get bossed around by Doe 1.
Castaneda-Prado’s wife Maria Veronica Rodriguez Arroyo (who went by
Vero) and their 25-year-old son Omar Castaneda and 27-year-old daughter
Veronica Diaz Castaneda confirmed Veronica and Omar babysat Doe 1 and
her younger brother during the weekdays when Doe 1 was in elementary
school.3 Omar and Veronica did not babysit Doe 2, but she would often visit,
and Veronica or Castaneda-Prado’s wife would look after her.
Castaneda-Prado’s wife and children stated they never babysat Doe 1
and Doe 2 at the same time. On one occasion, Doe 1 yelled at Castaneda-
Prado and called him names after Castaneda-Prado told her to stop yelling at
her younger brother. Veronica and Omar testified they never saw
Castaneda-Prado alone with Doe 1 or Doe 2.
Castaneda-Prado testified in his defense. He was 55 years old at the
time of trial, had been married for almost 38 years, and had four children.
He had worked as a landscaper. His wife worked with Doe 1’s mother from
2010 to 2020, and their daughter Veronica looked after Doe 1, as did his son
Omar occasionally. Castaneda-Prado knew Doe 2 since she was a baby; his
wife would look after her. He stated Doe 1 and Doe 2 were never looked after
in his home at the same time.
Castaneda-Prado denied touching Doe 1 or Doe 2 inappropriately or
making them touch him, and he stated he did not allow children in his
bedroom.
Castaneda-Prado discussed the incident when Doe 1 yelled at him for
breaking up a fight between her and her brother. Doe 1 called him “stupid.”
3 Because Castaneda-Prado’s adult children share a surname, we refer
to them by their first names for clarity, intending no disrespect.
6
Castaneda-Prado yelled at Doe 1 and called her “rude.” Castaneda-Prado felt
bad for yelling at Doe 1 because he is “not the type of person that usually
yells at children” or “mistreats” them. Castaneda-Prado testified that, when
Doe 1’s mother called him (the pretext call), he believed her allegations
concerned the fighting incident between Doe 1 and her brother. Castaneda-
Prado was apologizing for having scolded Doe 1. For instance, when
Castaneda-Prado said, “ ‘I regretted all of it because it was an accident,’ ” he
“was referring to what had happened” when he yelled at Doe 1 and not any
sexual abuse.
B. Procedural Background: The Charges, Verdict, and Sentence
An amended information charged Castaneda-Prado with five counts of
committing a lewd or lascivious act upon a child under the age of 14 (Pen.
Code,4 § 288, subd. (a)).5 As to each count, it was alleged Castaneda-Prado
committed offenses against multiple victims (§ 667.61, subds. (j)(2), (e)(4))
and engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)).
The jury found Castaneda-Prado guilty on all counts and found true the
allegations that the offenses involved multiple victims and substantial sexual
conduct.
The trial court sentenced Castaneda-Prado to five consecutive prison
terms of 25 years to life. Castaneda-Prado appealed.
4 Undesignated statutory references are to the Penal Code.
5 Based on the prosecutor’s closing argument and the court’s response
to a question from jurors during deliberations, the parties on appeal agree
that count 1 corresponds to the incident with Jane Doe 1 in the living room;
count 2 involves the incident with only Jane Doe 1 in the bedroom; counts 3
and 4 relate to Jane Doe 1 and Jane Doe 2 touching Castaneda-Prado’s penis
in the bedroom; and count 5 involves his touching Jane Doe 2’s vagina on that
occasion.
7
II. DISCUSSION
Doe 2 testified at the preliminary hearing that she had filed a
declaration accusing Castaneda-Prado of sexually abusing her to assist her
mother in obtaining a U visa. By the time of trial, Castaneda-Prado’s counsel
reported to the court that Doe 2 and her family were “pursuing immigration
relief based on the allegations in this case.” The trial court barred any cross-
examination of Doe 2 on these topics. On appeal, Castaneda-Prado argues
that this was error. We conclude the argument is well-taken.
A. Additional Background
1. The Preliminary Hearing
At the preliminary hearing in July 2020, toward the end of Doe 2’s
cross-examination, defense counsel questioned Doe 2 about the fact she and
her mother had filed a request for a civil harassment restraining order
against Castaneda-Prado in April of that year. Counsel asked Doe 2 whether
there was “any other reason” for making that request, other than to “seek
protection” from Castaneda-Prado, and Doe 2 said, “No.” Counsel then asked
about the declaration Doe 2 submitted with the request.
“[DEFENSE COUNSEL]: In this declaration, did you tell the Court
that [Castaneda-Prado] had put his hands on your private area like you told
the counselor [during the forensic interview]?
“[DOE 2]: Yeah.
“[DEFENSE COUNSEL]: And in this declaration you mentioned
nothing about your touching his private area, is that correct?
“[DOE 2]: No, I was embarrassed.
“[DEFENSE COUNSEL]: Okay. You were born in the United States,
correct?
“[DOE 2]: Yes.
8
“[DEFENSE COUNSEL]: And did you file this declaration to assist
your mother in getting a U-visa?
“[DOE 2]: Yes.
“[DEFENSE COUNSEL]: You did?
“[DOE 2]: Yes.”
On redirect examination, the prosecutor asked Doe 2 if she had
fabricated the allegations against Castaneda-Prado to secure a U visa; Doe 2
stated she had not. Specifically, the following exchange occurred:
“[PROSECUTOR]: [Doe 2], thank you for opening up with us today and
talking about some things that I know are embarrassing and difficult to talk
about. It is important that we have all of the information and the truth.
[¶] Everything that you are saying that [Castaneda-Prado] did, are you
saying that [Castaneda-Prado] did that because he did do that or are you
saying that he did that related to a U-visa?
“[DOE 2]: He did do that.”
2. Motions In Limine
In October 2021, shortly before trial began, the parties filed motions in
limine pertaining to U visas and immigration issues. In his trial brief, the
prosecutor moved to “exclude any questioning of [Doe 2] or any other
witnesses about any witnesses’ current or former status as a citizen of the
United States, or any other country, as well as exclude any questioning about
U visas or immigration relief.” The prosecutor described the exchange about
U visas that had occurred at the preliminary hearing. The prosecutor cited
People v. Villa (2020) 55 Cal.App.5th 1042 (Villa) (which we discuss further
below) and stated that “[n]either Jane Doe 2, nor her mother, has in fact
submitted a U visa application for certification.”
The prosecutor elaborated: “At no point has Jane Doe 2 or her mother
applied for certification of a U visa application, and at no point has Jane
9
Doe 2 or her mother indicated that any aspect of their participation in the
criminal investigation and proceedings has anything to do with a U visa. To
the contrary, given that Jane Doe 2 and her family reported the sexual abuse
by [Castaneda-Prado] in 2019, a criminal case was filed in early 2020, the
case proceeded through a live-witness prelim at which Jane Doe 2 testified in
July of 2020, and now, more than a year later in October 2021 as this case is
set to proceed to trial neither Jane Doe 2 nor her mother have submitted a
U visa application for certification, a U visa appears to be at most a mere
afterthought to Jane Doe 2 and her family. Accordingly, any questioning of
witnesses about potential prospective pursuit of a U visa lacks sufficient
relevance to be admitted at trial.” Finally, the prosecutor argued concerns
about undue consumption of time, confusion of the issues, and potential
prejudice weighed against admission of evidence about immigration status
and any immigration relief, including U visas.
For his part, defense counsel requested that the court order the
prosecution “to provide to the defense any benefit, including . . . U-visa
applications provided to any testifying witness, or their families, by the State,
or any other organization as a result of this case.” Counsel stated: “To date,
the people have provided evidence that the mother of Jane Doe #2 has
applied for a U-visa based on this case but the DA has not provided any
documents or applications the witness created in furtherance of this. The
defense believes that these documents should be provided. Additionally, the
defense has reason to believe that Jane Doe #1’s family have applied for a U-
visa as well and the defense believes the Sonoma County District Attorney’s
office should provide information to the defense regarding this prior to any
testimony by Jane Doe #1 or her family.”
10
In a different motion in limine, defense counsel requested pursuant to
Evidence Code section 352 “[t]hat no mention be made of [Castaneda-Prado’s]
immigration status” because “[his] national origin, and immigration status in
the United States is not probative of any element of the charged [offenses]
and is highly prejudicial.”
3. The Hearing on the Motions In Limine
At the October 15, 2021 hearing on the motions in limine, Castaneda-
Prado’s counsel argued he “need[ed] to be able to inquire about U visa status
in order to have a fair trial,” because Jane Doe 2 had “admitted under oath”
at the preliminary hearing that she filed her declaration to assist her mother
in obtaining a U visa. Counsel also referred to a report by an investigator
from the district attorney’s office who had spoken with Jane Doe 2’s mother.
In the report (dated October 4, 2021), the investigator stated: “I asked [the
witness] if she had applied for a U-visa. She told me, in summary, that she
had inquired about how to get one and tried to make an appointment.
Someone from Catholic Charities told her she needed to submit paperwork
such as a police report and court documents first so at this point she is not
sure if she’ll be getting an appointment or not. She submitted those
documents about 2 ½ weeks ago but hasn’t heard anything back from them
yet.”
Defense counsel argued there were now “two confirmed reports by
district attorney witnesses that Jane Doe 2 and her family are pursuing
immigration relief based on the allegations in this case. I do not think this
issue will be confusing to a jury. I think it’s really a matter of asking a couple
of questions of the witness.” Counsel also said he intended to call an
immigration attorney “who can succinctly describe what a U visa is and how
one might be obtained,” and provided a declaration from the immigration
attorney.
11
Counsel argued the U visa evidence was relevant to Jane Doe 2’s
credibility under Evidence Code section 780, subdivision (f) and showed
“bias, interest, other motives while testifying, motive to fabricate.”6 Finally,
counsel stated that, “as the Court is aware, there’s lots of other issues of
character and credibility of both Jane Doe No. 1 and Jane Doe No. 2, with
multiple witnesses saying that Jane Doe No. 1 is dishonest and had the
ability to manipulate Jane Doe No. 2. [¶] So I think this issue and the
character-evidence issue are intertwined with the U visa issue . . . .”
The prosecutor responded that “none of the people involved in this case
have filed a petition for an application for a U visa or any other immigration
relief that the People are aware of.” Instead, the family might have been
having informal discussions with Catholic Charities about a U visa. The
prosecutor also argued (as he had in his written motion) that the evidence
should be excluded under Evidence Code section 352, i.e., the probative value
was substantially outweighed by the probability its admission would
necessitate undue consumption of time or confuse or mislead the jury.
Defense counsel then argued that, because it was not clear “what
documents were submitted to whom and for what,” the court should hold a
hearing under Evidence Code section 402 to “get a little bit more information
here.” Counsel also stated that what was important was the intent to seek a
U visa, which had been “demonstrated over the life of this case.”
6 Evidence Code section 780 provides in part: “Except as otherwise
provided by statute, the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove
or disprove the truthfulness of his testimony at the hearing, including but not
limited to any of the following: [¶] . . . [¶] (f) The existence or nonexistence of
a bias, interest, or other motive. [¶] . . . .”
12
The trial court granted the prosecution’s motion to exclude evidence
about U visas. Citing Villa, the court concluded the probative value of the
evidence was substantially outweighed by its prejudicial nature and the
dangers of wasting time, confusing the issues, and distracting the jury. First,
stating that it understood the argument that the evidence was relevant, the
court noted the present case was several years old but the subject of U visas
was only recently discussed with Catholic Charities. The court noted the
issue did come up earlier, at the preliminary hearing, where, the court stated,
Jane Doe 2 “answered apparently incorrectly.”
As to prejudice and related concerns, the court stated: “But first I do
think I’m agreeing with many things that [the prosecutor] said at this point
as far as the Villa case, that all the factors about time, undue consumption of
time, substantial risk of distracting and confusing the jury, kind of all the
reasons you don’t want—you don’t want anyone knowing it. [¶] And I’m not
sure who is in the state legally or the country legally and who is not. It’s one
of the reasons that . . . I believe that [defense counsel’s] in limine mentioned
the defendant’s immigration status not being discussed. It’s prejudicial,
distracting, confusing to the jury, potential to prejudice the jury against the
victim, in your case against the defendant—and all those factors in Villa, I
think, apply here.”
Defense counsel again asked the court to hold an Evidence Code
section 402 hearing, arguing that testimony from Jane Doe 2’s mother “would
clear a lot of this up” and that the key issue was whether there was an intent
to apply for a U visa. The prosecutor opposed the request, arguing that an
expression of intent to seek a U visa in the future should not change the
court’s analysis as to the admissibility of the evidence under Evidence Code
section 352. The prosecutor stated: “If the Court agrees and would maintain
13
its ruling even if somebody in this case expressed a potential intent or even a
definite intent to apply for immigration relief through the U visa process at
some point in the future, then there’s no need for a 402; and the People
believe that would be an appropriate order.” The court declined to hold an
Evidence Code section 402 hearing, stating its “analysis would be the same.”
Later in the same hearing, when addressing the defense motion for an
order requiring the prosecution to provide information about U visa
applications, the court stated it was granting that motion and directing the
prosecutor to turn over any available information “for any further argument.”
The prosecutor stated the People agreed with the court’s order and explained
“the measures that the People [had] engaged in with this issue” to ascertain
if there was anything “determinative.”
The prosecutor stated his understanding of the U visa process is that
an application can be submitted either to the investigating agency (the Santa
Rosa Police Department) or the district attorney’s office. The prosecutor
stated the People had inquired at the police department a few weeks earlier
and learned that no applications had been submitted for Jane Doe 1, Jane
Doe 2, or either of their mothers. An inquiry at the district attorney’s office
yielded the same result. Because of Jane Doe 2’s statements at the
preliminary hearing, the People had spoken with Jane Doe 2’s mother to
double-check, but “there was nothing to indicate that she has submitted an
application for a U visa.”
In response, defense counsel suggested the prosecutor should look into
whether either of the families had sought information about a U visa from
the victim advocates in his office. The court stated it was “not ordering [the
prosecution] to do anything,” but asked the prosecutor if he had “[a]ny
information.” The prosecutor stated: “[The] People will just state we’re not
14
conceding that—the extent of a relationship the defense has essentially
speculated to in the existence of this case. [¶] The People would just note
that, with respect to the actual application, the People believe we’ve looked
into this and there’s no reason at this time to believe that it’s been submitted.
I think any discussions are a separate issue.”
4. Midtrial Requests for Reconsideration of the Court’s In
Limine Ruling
a. Before Doe 1’s Testimony
Prior to Doe 1’s testimony, defense counsel asked outside the presence
of the jury that the court reconsider its order excluding any references to
U visas. Counsel stated: “I made a fairly long record about [the U visa issue]
in in limines, but I do think it is undisputed that it is relevant and I think
credibility of witnesses is a very big issue in this case. And I know the Court
made a ruling under [Evidence Code section] 352 earlier excluding any
questioning on that topic, but I would like the Court to reconsider that. I
want to put that on the record that I’m making that request again.” The
court declined counsel’s request, stating its previous ruling would stand.
b. During Doe 2’s Cross-Examination
During Doe 2’s cross-examination, and outside the presence of the jury,
defense counsel stated he intended to ask Doe 2 whether she or her family
were receiving any benefit from her testimony, an area counsel argued was
relevant to show bias and motive to fabricate. The prosecutor opposed the
request, stating counsel’s question was “problematic” in light of the court’s
prior ruling precluding questioning about the U visa issue. Defense counsel
argued “this is critical to my defense to give the jury some understanding of
why a minor may fabricate something.” Counsel acknowledged the question
might open the door to questioning about the U visa.
15
Because defense counsel did not articulate (in response to a question
from the court) any specific basis for the question other than the U visa issue,
the court denied counsel’s request, reasoning the proposed question was
“intended to go down the road of the U-Visa.” The court stated: “I’ve heard
your argument. I’ve ruled on it. I appreciate you coming back here more
than you know at this point and bringing it up to us. My ruling is going to
stand. The objection will be noted for the record. If there is any other basis
that you have, information why to ask that question about a good faith belief
for something else, and anything given this witness I would absolutely 100
percent believe it is admissible. But I’m not hearing that at this point. I’m
not going to allow the question.”
c. During the Prosecutor’s Closing Argument
During closing argument, the prosecutor stated: “Just in terms of
recollection, if this was a case of false accusations, would you expect an
answer to every question? Jane Doe-1 and Jane Doe-2 didn’t try to do that.
They couldn’t do that. They were candid about what they remembered and
candid about what they didn’t. And in considering the credibility of Jane
Doe-1 and Jane Doe-2, there is a lack of an identifiable reason to lie.”
Defense counsel objected, and the court overruled the objection.
The prosecutor continued: “When you think about false accusations in
a case like this, you think what does a person have to gain. Is it money? Is
this person going after somebody’s money? There has been no evidence
presented in this case to suggest anything like that. Is it custody perhaps?
Is it somebody who needs to maybe use the accusation as a tool to get away
from somebody? Nothing.” Defense counsel objected to the prosecutor’s “line
of argument given prior discussions”; the court overruled the objection.
The prosecutor then stated: “Frankly, aside from psychological well-
being, from the loss of family, from the loss of friends, loss that these girls
16
knew they and their mothers would experience. There was a lot more to lose
than to gain in some regards.”
Immediately after the prosecutor’s closing argument, and outside the
presence of the jury, defense counsel asked to make a further record about
the U visa issue. The court stated that it had made its ruling and understood
counsel’s position, which had “been on the record a thousand times already.”
After a recess, defense counsel reiterated (and the court granted) his
request to make a record about the U visa issue and the prosecutor’s closing
argument. Counsel stated: “There was a portion where [the prosecutor] had
a slide on the computer screen from a Power Point presentation that was
essentially about credibility of witnesses. One of the points on the slide said
that there was no incentive for Jane Does to lie in this case. I know I brought
this up several times, but it is my belief based on a statement Jane Doe-2
made under oath at the preliminary hearing that she and her family were
seeking a U-Visa, also based on a statement turned over to me from the
District Attorney’s office that to me indicated that Jane Doe-2 and her family
were seeking a U-Visa based on this case. I know that’s in the Court file. I
submitted that during motions in limine. I thought that was an improper
argument given that there is a potential benefit and reason to lie that’s been
suppressed. That’s why I objected. I wanted to make that clear for the
record.”
The prosecutor countered that the argument was proper, stating the
slide made “a reference to identifiable reason to lie. Specifically an argument
based on the body of evidence that’s been presented in this case, which is the
body of evidence from which this jury needs to base its decision. With respect
to whether or not that evidence—the state of the evidence the People believe
that was already address[ed]. But to be clear about what came up. It was a
17
comment from the body of evidence for which the jury must base their
decision.”
The court noted defense counsel’s objection and stated it “was overruled
with the previous basis [having been] stated.”
B. Analysis
Castaneda-Prado argues the trial court violated his confrontation and
due process rights by excluding all evidence related to a U visa. Before
turning to our analysis, we begin with the governing legal standards.
1. Legal Standards
a. Sixth Amendment Protection of Cross-Examination
Cross-examination is known as “ ‘the greatest legal engine ever
invented for the discovery of truth.’ ” (White v. Illinois (1992) 502 U.S. 346,
356.) “Subject always to the broad discretion of a trial judge to preclude
repetitive and unduly harassing interrogation,” the United States Supreme
Court has said, “[c]ross-examination is the principal means by which the
believability of a witness and the truth of his testimony are tested.” (Davis v.
Alaska (1974) 415 U.S. 308, 316 (Davis).)
In criminal cases, the right to cross-examine is not only fundamental to
the adversarial process; it is constitutionally protected. The Sixth
Amendment to the United States Constitution, applicable to the states
through the due process clause of the Fourteenth Amendment (Pointer v.
Texas (1965) 380 U.S. 400, 403), “guarantees the right of an accused in a
criminal prosecution ‘to be confronted with the witnesses against him.’ ”
(Davis, supra, 415 U.S. at p. 315.)7 As Professor Wigmore once said, “ ‘The
7 Article I, section 15 of our state constitution supplies the same
guarantee, providing a criminal defendant with “the right . . . to be
confronted with the witnesses against” him. (See People v. Cromer (2001)
18
opponent demands confrontation, not for the idle purpose of gazing upon the
witness, or of being gazed upon by him, but for the purpose of cross-
examination, which cannot be had except by the direct and personal putting
of questions and obtaining immediate answers.’ ” (Davis, supra, 415 U.S. at
p. 316, quoting 5 Wigmore on Evidence (3d ed. 1940) § 1395, p. 123.)
The high court’s “Confrontation Clause cases fall into two broad
categories: cases involving the admission of out-of-court statements and cases
involving restrictions imposed by law or by the trial court on the scope of
cross-examination.” (Delaware v. Fensterer (1985) 474 U.S. 15, 18.) In the
latter class of cases, restrictions so stringent as to render cross-examination
ineffective will give rise to confrontation clause questions because, in that
scenario, they “ ‘effectively . . . emasculate the right of cross-examination
itself.’ ” (Id. at p. 19.)
Cross-examination for bias, in particular, has a special place in
confrontation clause jurisprudence. Courts have long “ ‘recognized that the
exposure of a witness’ motivation in testifying is a proper and important
function of the constitutionally protected right of cross-examination.’ ” (Van
24 Cal.4th 889, 896.) “The California constitutional provision was added in
1974 in order to restate what had already been in existence in the due
process clause of the state Constitution. The California Constitutional
Revision Commission treated the new clause as being identical with the right
afforded by the U.S. Constitution.” (In re Damon H. (1985) 165 Cal.App.3d
471, 477, fn. 6.) Although our state charter is “ ‘ “a document of independent
force” ’ [citation] that sets forth rights that are in no way ‘dependent on those
guaranteed by the United States Constitution’ ” (People v. Buza (2018)
4 Cal.5th 658, 684; see Cal. Const., art. I, § 24), we see “no reason to think”
California’s confrontation clause “would be interpreted differently than the
United States Supreme Court has interpreted the United States
constitutional right of confrontation.” (People v. Bertoldo (1978)
77 Cal.App.3d 627, 632.)
19
Arsdall, supra, 475 U.S. at pp. 678–679; see United States v. Abel (1984)
469 U.S. 45, 52.) That is because, among the many varieties of impeachment
evidence, bias has traditionally been viewed as especially powerful. (Alford v.
United States (1931) 282 U.S. 687, 693.) The cases in this area tend to treat
cross-examination on motive to fabricate more favorably than other forms of
impeachment. (United States v. Abel, supra, 469 U.S. at p. 52 [“Proof of bias
is almost always relevant because the jury, as finder of fact and weigher of
credibility, has historically been entitled to assess all evidence which might
bear on the accuracy and truth of a witness’ testimony.”].)
This is consistent with how proof of bias has traditionally been handled
in the law of evidence generally. As the high court explained in Abel, “The
‘common law of evidence’ allowed the showing of bias by extrinsic evidence,
while requiring the cross-examiner to ‘take the answer of the witness’ with
respect to less favored forms of impeachment.” (United States v. Abel, supra,469 U.S. at p. 52.) So it is under the confrontation clause, where facts
showing bias are considered so highly probative of credibility they are almost
never deemed categorically off-limits. (Id. at p. 52, citing Hale, Bias as
Affecting Credibility (1949) 1 Hastings L.J. 1.) Where a proper foundation is
laid for the inquiry, “the trial judge may not deny a reasonable opportunity
. . . to prove the witness’s bias” through cross-examination or through other
witnesses, but “she has a discretion to control the extent of the proof.”
(1 McCormick on Evidence (8th ed. 2022) Bias and partiality, § 39.)
b. Delaware v. Van Arsdall
Davis v. Alaska, supra, 415 U.S. 308, and Delaware v. Van Arsdall,
supra, 475 U.S. 673, are the leading United States Supreme Court cases on
the constitutional protection of cross-examination for bias. Both cases are
relevant here, but because the holding in Van Arsdall is central to our
analysis, it deserves fulsome consideration to set the stage for the discussion
20
to come. There, defendant Van Arsdall and his friend Pregent were the only
two people in Pregent’s apartment with Epps, the victim, when she was
stabbed to death. (Van Arsdall, supra, 475 U.S. at p. 674.) The evidence of
who committed the killing, Pregent or Van Arsdall, was circumstantial.
(Ibid.) Fleetwood, who lived in the apartment across the hall, testified that
on the evening of the homicide, he walked over, looked into Pregent’s living
room from the open doorway, and saw Van Arsdall sitting on the edge of the
sofa bed next to Pregent’s feet. (Id. at p. 675.)
At Van Arsdall’s trial for the murder of Epps, the trial court refused to
allow the defense to cross-examine Fleetwood about his having agreed to
speak to investigators only on condition that a pending driving under the
influence (DUI) charge against him be dismissed. (Van Arsdall, supra,475 U.S. at p. 676.) Fleetwood was drunk on the evening of the homicide (id.
at p. 677), and in closing argument the defense was able to attack the
accuracy and reliability of his recall for that reason (ibid.), but due to the
trial court’s ruling on dismissal of the DUI charge, the defense was totally
foreclosed from attempting to show that he had a motive to fabricate. On
appeal, the Delaware Supreme Court held that “ ‘a blanket prohibition
against exploring potential bias through cross-examination’ ” violates the
confrontation clause and is “ ‘per se error’ ” requiring automatic reversal
without any inquiry into prejudice. (Id. at pp. 677–678.) The United States
Supreme Court reversed on the prejudice point (id. at pp. 680–684), but
largely embraced the Delaware Supreme Court’s finding of a Sixth
Amendment violation (id. at pp. 678–680).
The high court’s holding was twofold. First, reiterating the caveat laid
down in Davis for traditionally recognized trial court discretion to control the
scope of cross-examination (Davis, supra, 415 U.S. at p. 316), the court
21
explained that trial courts “retain wide latitude . . . 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.” (Van Arsdall,
supra, 475 U.S. at p. 679.) But defendant Van Arsdall was flatly prohibited
“from engaging in otherwise appropriate cross-examination designed to show
a prototypical form of bias on the part of the witness.” (Id. at p. 680.) And
under those circumstances, the court held, a confrontation clause violation
was shown because “[a] reasonable jury might have received a significantly
different impression” of Fleetwood’s credibility if the proposed line of cross-
examination had been permitted. (Ibid.)
Second, the court held that “the constitutionally improper denial of a
defendant’s opportunity to impeach a witness for bias, like other
Confrontation Clause errors, is subject to Chapman harmless-error analysis.”
(Van Arsdall, supra, 475 U.S. at p. 684; id. at p. 680, citing Chapman, supra,386 U.S. at p. 24.) “The correct inquiry,” the court explained, “is whether,
assuming that the damaging potential of the cross-examination were fully
realized, a reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt.” (Van Arsdall, supra, 475 U.S. at
p. 684.) Whether a particular confrontation clause violation is harmless, the
court said, “depends upon a host of factors,” including “the importance of the
witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and . . . the overall strength of the
prosecution’s case.” (Ibid.)
22
Proper application of Van Arsdall requires threshold consideration of
whether the trial court exercised sound discretion under state law
evidentiary standards in limiting the scope of cross-examination. The high
court’s acknowledgment that trial courts “retain wide latitude . . . to impose
reasonable limits on such cross-examination” (Van Arsdall, supra, 475 U.S.
at p. 679) leaves room for an evaluation of admissibility under the Evidence
Code, tested under the deferential abuse of discretion standard of review
governing such discretionary questions (People v. Waidla (2000) 22 Cal.4th
690, 713–714).8 If the trial court excluded “evidence of marginal
impeachment value” (People v. Brown (2003) 31 Cal.4th 518, 545) or
otherwise merely carried out the routine evidentiary function of controlling
the scope of permissible cross-examination, the answer to this initial evidence
question will generally be yes—the trial court was within its discretion—and
the inquiry comes to an end. There was no error, under either state law or
under the Sixth Amendment.
We say “generally” because the Sixth Amendment circumscribes the
trial court’s discretion. (See People v. Linton (2013) 56 Cal.4th 1146, 1188
[“ ‘Within the confines of the confrontation clause, the trial court retains wide
8 See, e.g., People v. Mendez (2019) 7 Cal.5th 680, 704, 705 (cross-
examination question about exhibit showing witness’s gang membership
“would have risked wasting time and creating confusion[,] . . . all without
much benefit,” and “was permissibly barred under Evidence Code
section 352”); People v. Pearson (2013) 56 Cal.4th 393, 455-456 (proposed
cross-examination questions lacked foundation and were speculative); see
also, e.g., People v. Virgil (2011) 51 Cal.4th 1210, 1252 (proposed cross-
examination questions lacked foundation, were cumulative, and were
argumentative); People v. Sully (1991) 53 Cal.3d 1195, 1220, 1221
(impeachment value of proposed cross-examination questions was “marginal,”
“peripheral to the issue in the case,” without foundation, and potentially
prejudicial).
23
latitude in restricting cross-examination that is repetitive, prejudicial,
confusing of the issues, or of marginal relevance.’ ”].) Where a trial court
effectively renders cross-examination an exercise in futility, we must proceed
to a second stage of analysis. Here, we ask a further, purely constitutional
question whether “[a] reasonable jury might have received a significantly
different impression” of the challenged witness’s credibility if the proposed
line of cross-examination had been permitted. (Van Arsdall, supra, 475 U.S.
at p. 680.) At this stage of the analysis, courts conduct what is akin to a
mini-prejudice inquiry focused on the witness’s cross-examination rather
than the outcome of the trial as a whole, examining whether the defense had
other means of impeachment,9 and always bearing in mind that “ ‘the
Confrontation Clause guarantees an opportunity for effective cross-
9 See, e.g., People v. Gonzalez (2021) 12 Cal.5th 367, 406–407 (“[T]he
record makes clear defense counsel was allowed to ask Rowan and Celina
questions that were intended to examine whether the answers they provided
on direct examination were tainted by their desire to secure a lesser sentence.
While the trial court prohibited the defense from asking differently phrased
questions that were meant to examine that same issue, we fail to see how
those questions would have produced ‘a significantly different impression’
[citation] of the witnesses’ credibility.”); People v. Quartermain (1997)
16 Cal.4th 600, 624 (“Younge admitted on cross-examination that he had
previously perjured himself ‘many times’ while testifying in other judicial
proceedings, that he had bribed others to commit perjury, and that he had
coached yet another witness in a different proceeding to give perjured
testimony. Younge also admitted that he had been convicted of ‘a hundred
and thirty something’ counts of mail fraud as well as sale of cocaine and
conspiracy to manufacture and distribute methamphetamine. . . . Because of
the impeachment evidence that was presented, a reasonable jury would not
have received a significantly different impression of Younge’s credibility had
he additionally been cross-examined regarding his bribery of two judges in
other proceedings.”); see also, e.g., People v. Williams (1997) 16 Cal.4th 153,
207–208; People v. Chatman (2006) 38 Cal.4th 344, 374.
24
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’ ” (Van Arsdall, supra, 475 U.S. at
p. 679, emphasis in original.)
While our Supreme Court has not squarely addressed the standard of
review applicable to this core aspect of the Van Arsdall analysis, the court
generally speaks of abuse of discretion when addressing claims of Van
Arsdall error. (See, e.g., People v. Mendez, supra, 7 Cal.5th at p. 703; People
v. Pearson, supra, 56 Cal.4th at pp. 455-456; People v. Peoples (2016)
62 Cal.4th 718, 765; People v. Belmontes (1988) 45 Cal.3d 744, 781.) But
“[t]he abuse of discretion standard is not a unified standard” of review
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711) and “the deference
it calls for varies according to the aspect of a trial court’s ruling under
review.” (Ibid.) By analogy to other areas of confrontation clause
jurisprudence, we will undertake de novo review of whether a reasonable jury
might have received a significantly different impression of Doe 2’s credibility
had the proposed line of cross-examination been permitted.10
Where courts reach the second stage of the Van Arsdall analysis and
find error, reversal is required unless the government can show the error was
harmless beyond a reasonable doubt under Chapman. This two-step analysis
under Van Arsdall, with an initial question under state evidence law, and a
10 See People v. Garcia (2020) 46 Cal.App.5th 123, 168–169 (“We apply
de novo review to [a] claim that [the defendant’s] rights under the
confrontation clause were violated [under Crawford v. Washington (2004)
541 U.S. 36]. [Fn. omitted.] [Citation.] [But w]hen reviewing whether
substantial evidence supports the gang enhancement, ‘We review the entire
record in search of reasonable and credible evidence of solid value, viewing all
the evidence in the light most favorable to the prosecution, and drawing all
reasonable inferences in favor of the jury’s findings.’ ”); see also People v.
Seijas (2005) 36 Cal.4th 291, 304.
25
second, sometimes overlapping constitutional question present in the
background under the Sixth Amendment, is similar to the established mode
of analysis utilized in “cases involving the admission of out-of-court
statements.” (Delaware v. Fensterer, supra, 474 U.S. at p. 18; see Crawford v.
Washington, supra, 541 U.S. 36; People v. Sanchez (2016) 63 Cal.4th 665,
674.) As we shall explain below, after proceeding through the entire Van
Arsdall framework, we conclude that, on this record, there was a
confrontation clause violation under Van Arsdall, and that Chapman
requires reversal.
2. Evidence Code Section 352
All relevant evidence is admissible unless otherwise provided by
statute. (Evid. Code, § 351.) “Relevant evidence” is defined as evidence that
has any reasonable tendency to prove or disprove any disputed fact that is of
consequence to the determination of the action. (Evid. Code, § 210.) The
outer bounds of relevance, always within the trial court’s discretion to set, are
subject to the court’s authority to exclude proffered 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.” (Evid.
Code, § 352.) Although the trial court need not expressly set forth its
weighing process on the record, since its reasoning can often be inferred, the
“ ‘better practice’ ” is for it do so. (People v. Carter (2005) 36 Cal.4th 1114,
1151.)
Giving reasons, the trial court struck the Evidence Code section 352
balance here in favor of excluding any evidence relating to expected benefits
from the U visa program. Its rationale was twofold, initially articulated in
support of its in limine ruling prior to trial and then maintained when
defense counsel returned to the issue during trial. First, adopting the
26
prosecution’s principal argument for exclusion, the court found significant the
fact that there was no evidence any U visa application had been
submitted. Second, the court pointed out that, in addition to undue
consumption of time and a substantial risk of distracting and confusing the
jury, introducing the topic of anyone’s undocumented immigration status
could prejudice the minds of the jury, not only against Doe 2 but potentially
against Castaneda-Prado himself.
“The discretion granted the trial court by section 352 is not absolute.”
(Brainard v. Cotner (1976) 59 Cal.App.3d 790, 796.) It is a “ ‘legal
discretion,’ ” always cabined by the legal premises on which it rests (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773), and it must always be “exercised reasonably in accord with the facts
before the court.” (Brainard v. Cotner, supra, 59 Cal.App.3d at p. 796.)
“Reasonable exercise of trial court discretion pursuant to Evidence Code
section 352 requires” “consideration of the relationship between the evidence
and the relevant inferences to be drawn from it, whether the evidence is
relevant to the main or only a collateral issue, and the necessity of the
evidence to the proponent’s case as well as the reasons recited in section 352
for exclusion.” (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291.)
The Evidence Code speaks in terms of avoiding “undue” consumption of
time on collateral matters (Evid. Code, § 352, italics added) and “undue”
prejudice or jury distraction (ibid., italics added). “ ‘Unless the dangers of
undue prejudice, confusion, or time consumption “ ‘substantially outweigh’ ”
the probative value of relevant evidence, a section 352 objection should fail.’ ”
(People v. Doolin (2009) 45 Cal.4th 390, 439, italics added.) Thus, Evidence
Code section 352 balancing is undertaken on a sliding scale. “The more
substantial the probative value of the evidence, the greater the danger of the
27
presence of one of the excluding factors that must be present to support an
exercise of trial court discretion excluding the evidence. [Citation.] [¶] Where
the evidence relates to a critical issue, directly supports an inference relevant
to that issue, and other evidence does not as directly support the same
inference, the testimony must be received over a section 352 objection absent
highly unusual circumstances.” (Kessler v. Gray, supra, 77 Cal.App.3d at
pp. 291–292.)
Because we are dealing with bias evidence, Evidence Code section 352
balancing must begin here with a sharp tilt on the sliding scale in favor of
admissibility. It has long been recognized that a criminal defendant may
“ ‘explore whether a witness has been offered any inducements or expects any
benefits for his or her testimony, as such evidence is suggestive of bias.’ ”
(People v. Pearson, supra, 56 Cal.4th at p. 455; People v. Duran (1976)
16 Cal.3d 282, 294; Evid. Code, § 780, subd. (f).) As a Second District,
Division Three panel explained 45 years ago—consistent with the high court’s
later recognition in Van Arsdall of the weight traditionally given to proof of
bias in evidence law generally—“A party can offer evidence, by proffered
extrinsic evidence or by cross-examination of a witness, to attack the
credibility of a witness, if such evidence tends reasonably to establish that
the witness has a motive to fabricate, or some other motive, that tends to
cause the giving of untruthful testimony, even though there may be no
reasonable basis for the existence of such a motive.” (People v. Allen (1978)
77 Cal.App.3d 924, 931.)11
11 See Simons, California Evidence Manual (2022) Attacking or
supporting credibility—Bias, interest, or other motive, section 3:43 (“A
witness may be questioned about promises, expectations, or any hope of
benefits from the other party, however unreasonable”).
28
It is also important to bear in mind that the bias evidence we have
here was proffered on a highly consequential issue for Castaneda-Prado.
Sometimes, “Impeachment of a witness can make the difference between
acquittal and conviction, especially where credibility is the major issue in a
case and evidence at trial will consist of opposing stories presented by the
defense and the prosecution witnesses.” (Abatti v. Superior Court (2003)
112 Cal.App.4th 39, 52.) The trial court acknowledged the relevance of the
proffered U visa evidence to Castaneda-Prado’s defense, and at no point
suggested that it was peripheral to the case or that it added little to the
impeachment material Castaneda-Prado already had at his disposal. While
there is certainly room for debate about whether the probative value of the
U visa evidence was so potent that it could have led to acquittal on all
charges, the court implicitly recognized the evidence deserved to be given
substantial probative weight. And correctly so. The jury’s guilty verdicts
turned almost entirely on the credibility of Does 1 and 2. There was no
physical evidence of the alleged sexual offenses, and investigators in this case
had no ability to seek to obtain physical corroboration of the “historical
disclosure[s]” by the two victims.
During the argument on the motion in limine, there was much
discussion of whether anyone in Doe 2’s family had actually applied for a
U visa. In the absence of any proof of an application for U visa benefits, the
court apparently believed a “preliminary fact” requisite to admissibility had
not been established. (Evid. Code, § 403, subd. (a); see People v. Lucas (1995)
12 Cal.4th 415, 466.) The Attorney General takes the same position in his
responding brief here on appeal, contending “there was no basis for defense
counsel to pursue the theory that Doe 2 altered her testimony in the hopes of
obtaining a U visa for her mother” and that it was speculative to do so. But
29
the idea that a foundation was lacking for Castaneda-Prado’s proposed cross-
examination of Doe 2 is misplaced. Although a U visa application would
certainly have justified an inference that Doe 2 believed testifying favorably
to the prosecution would benefit her mother (so long as she knew of the
application and had some understanding of what it meant), that was not the
only way her intent could be proved. Here, she admitted trying to help her
mother obtain a U visa at the preliminary hearing. Nothing else was
necessary to provide a good faith basis to cross-examine on the issue at trial.
The only remaining question had to do with the scope of cross-examination,
not whether it could be undertaken at all.
In defense of the trial court’s Evidence Code section 352 ruling, the
Attorney General relies heavily on the recent opinion in Villa, supra,
55 Cal.App.5th 1042, just as the prosecutor did in the trial court. But we see
this case in all material respects as the polar opposite of Villa. Villa involved
a prosecution for various offenses arising out of a domestic violence incident
in which defendant Villa was accused of beating his girlfriend, Jane Doe,
while they were both riding in Villa’s truck. (Id. at pp. 1044–1047.) Villa,
who was at the wheel, struck Jane Doe repeatedly and ordered her to get out
of the vehicle even though they were on the freeway. (Id. at p. 1045.) He also
tried to intimidate her into not reporting his abuse. (Id. at p. 1046.) There
was medical evidence of the wounds Doe suffered and evidence of defendant
Villa’s intoxication (ibid); the officer who pulled over the truck saw that she
had visible wounds (ibid.); and Doe had suffered a previous beating at the
hands of defendant Villa only weeks before (ibid.). Doe testified at a
preliminary hearing before submitting a U visa application—at an Evidence
Code section 402 hearing she stated she was unaware of what a U visa was
when she gave her preliminary hearing testimony—and she then testified to
30
similar facts at trial, after learning about and submitting a U visa
application. (Villa, at pp. 1048, 1052–1053.)
The Villa trial court excluded any evidence of the U visa application at
trial, and an appellate panel affirmed, concluding that (1) the evidence “didn’t
provide much of a basis to question [Doe’s] testimony” in light of the
extensive corroborating evidence in the case and the consistency in her
accounts, which made its probative value limited (Villa, supra, 5 Cal.App.5th
at pp. 1052–1053), (2) the evidence “would have been unduly time consuming
to present” because of the need to explore exactly what Doe knew about the
U visa program and when she knew it (id. at p. 1053), (3) to evaluate whether
the U visa program gave Doe “a strong reason to lie,” there was a substantial
risk the jury might have been distracted with collateral issues concerning the
likelihood Doe would receive permanent residency status (ibid.), and (4) there
was “at least some potential” for prejudice to Doe, since one or more jurors
“might be inclined to view her unfavorably if they found out she could use her
standing as a victim of abuse to gain a path to legal immigration status”
(ibid.).12
Villa differs from this case in at least three notable respects. First,
because the prosecution’s case against Castaneda-Prado turned almost
entirely on credibility, the Evidence Code section 352 analysis here, as noted
above, starts with the fact we are dealing with evidence of weighty probative
12 The court stated that “[t]his concern is precisely the reason Evidence
Code section 351.4 limits evidence of a person’s immigration status in
criminal trials.” (Villa, supra, 55 Cal.App.5th at p. 1054; see Evid. Code,
§ 351.4, subd. (a) [“In a criminal action, evidence of a person’s immigration
status shall not be disclosed in open court by a party or their attorney unless
the judge presiding over the matter first determines that the evidence is
admissible in an in camera hearing requested by the party seeking disclosure
of the person’s immigration status.”].)
31
value on a critical issue. Villa, by contrast, is a case where the proffered
impeachment for bias had only slight probative value because there was
extensive corroboration for Doe’s testimony, both documented and from other
witnesses. Second, the Villa court recognized that, if U visa evidence had
been admitted in that case, there would have been an inevitable contest over
whether, in Doe’s mind, the U visa process could possibly have influenced her
testimony and to what extent. That is evident because Doe testified to
knowing nothing about the U visa program when she first stepped forward to
testify at the preliminary hearing. In this case, by contrast, Doe 2 admitted
she knew of and was motivated by potential U visa benefits when she first
gave a sworn statement accusing Castaneda-Prado of abuse in April 2020.
And third, Doe’s testimony in Villa remained consistent from the beginning,
while in this case, after initially reporting the alleged offense to her mother—
the potential beneficiary of the U visa program—Doe 2’s testimony grew more
detailed and more incriminating to Castaneda-Prado over time.13
In light of Doe 2’s preliminary hearing testimony, why the court
expressed concern about undue consumption of time and jury distraction is
puzzling. It is not at all clear that any inquiry into U visa practice and
procedure, with attendant complexities requiring expert explanation, or any
probing of Doe 2’s understanding of the likelihood her mother would actually
obtain immigration relief, was required here. What mattered most was that
Doe 2 apparently believed she was furthering her mother’s interest in
13 We do not suggest that Doe 2’s testimony was not believable because
of these changes. For any witness, recounting the same facts multiple times
at a distance of years will often result in such variations, and in any event
differences in Doe 2’s recall at different times were only a factor for the jury
to consider in weighing her testimony. (See CALCRIM No. 226 [jury to
“consider anything that reasonably tends to prove or disprove the truth or
accuracy of that testimony”].)
32
obtaining a U visa by giving damaging testimony about Castaneda-Prado.
Defense counsel was entitled to probe that belief on cross-examination, no
matter how unreasonable or untutored it may have been.14 Legally, this
point was not subject to reasonable debate; overlooking it was an error of law.
Factually, the trial court brushed off Doe 2’s preliminary hearing testimony
with the comment that the testimony was “apparently incorrect[].” But that
was a credibility issue for the jury to assess. For the court to decide the issue
in an exercise of Evidence Code section 352 discretion was an improper
invasion of the jury’s role. The fact that the court did so without an Evidence
Code section 402 hearing makes things even more problematic. Rather than
hold such a hearing, the court said it was unnecessary to take that step
because, no matter what facts were presented, it would adhere to its earlier
announced view that any inquiry into U visa matters was inadmissible and
off-limits. Developing the record further was pointless, the court concluded,
because admission of U visa related evidence at trial would inevitably cause
problems of time consumption and distraction of the jury.
The difficulty with this categorical approach to the admissibility
analysis is that, based on Doe 2’s preliminary hearing testimony alone—
without more—Castaneda-Prado had already established a foundation for
cross-examination questions on the topic of expected U visa benefits. Rather
than flesh out the record in order to provide suitable Evidence Code
section 352 guardrails for the scope of cross-examination—and for any other
14 See People v. Cornwell (2005) 37 Cal.4th 50, 93–94 (defense counsel
should be able to cross-examine a prosecution witness, who had received
immunity for his role in the crime, as to the sentence the witness believed he
was facing, even if that belief was inaccurate; there was no need to explore
the “basis” for that belief); Simons, California Evidence Manual, supra,
section 3:43.
33
testimony Castaneda-Prado or the People might have wished to present on
the matter—the court, like the trial court in Van Arsdall, supra, 475 U.S. at
page 679, flatly prohibited all inquiry into the subject. This was not only
unwarranted because some exploration of the permissible scope of U visa
cross-examination was needed at that point, but due to the court’s
unwillingness to consider any additional information, the ruling was made
without adequate consideration of the relevant Evidence Code section 352
factors.
The court also expressed considerable concern about the potential for
prejudice, but on that issue, too, the record fails to support the ruling. As
pertinent here, all the court knew was that (1) Castaneda-Prado and Does 1
and 2 were part of a close family and community network in which there was
shared responsibility for babysitting children, (2) Doe 2 is a United States
citizen, having been born in the United States, (3) Doe 2’s mother, who did
not testify at trial, apparently is an undocumented person, and
(4) Castaneda-Prado made a successful pretrial motion in limine to exclude
any evidence of his immigration status.
Why, against this backdrop, the court believed that U visa related
evidence might potentially prejudice either Doe 2 or Castaneda-Prado is
unclear. Even accepting the eminently reasonable premise that evidence
concerning the immigration status of parties or witnesses is inherently
volatile in some communities, we do not think it follows that evidence
pointing to the undocumented status of someone in the family and
community network of which Castaneda-Prado and Doe 2 were part would
inspire feelings of anti-immigrant prejudice specifically toward one or both of
them in the eyes of a reasonable jury. There was no evidence in the record
that either of them was an undocumented person; no one proposed to
34
introduce such evidence; and any risk of the jury speculating about that
possibility could easily have been addressed in a cautionary instruction.
While we recognize and see the importance of minimizing any “chilling effect”
on the willingness of potential U visa applicants to step forward and apply for
benefits,15 the prejudice prong of Evidence Code section 352 is not governed
by generalized policy concerns.
In our view, the bias Castaneda-Prado sought to probe—which had to
do with Doe 2’s belief that her mother could potentially derive some benefit
from the U visa program—did not pose any substantial risk of prejudice to
any party or witness in this case. The fact that, by statute, Evidence Code
section 351.4 limits evidence of “a person’s immigration status” in criminal
trials makes no difference on this record. There was no danger of the
evidentiary filter that statute establishes—requiring an advance, in camera
ruling on admissibility before any disclosure may be made in open court of
“evidence of a person’s immigration status” (Evid. Code, § 351.4, subd. (a))—
being violated here. In Villa, the court was understandably concerned about
prejudice directly affecting the key prosecution witness in the case, the
defendant’s girlfriend. Any comparable concern in this case was attenuated
at best. To outweigh the substantial probative value of the proffered bias
15 See Pritchett, Shielding the Deportable Outsider: Exploring the
Rape Shield Law as Model Evidentiary Rule for Protecting U Visa Applicants
as Witnesses in Criminal Proceedings (2017) 40 Harv. J.L. & Gender 365, 392
(The prospect of cross-examination at trial “can be devastating to the U visa
applicant because many applicants have entered the country without
inspection or admission and worked without authorization. Answering these
questions truthfully in open court can have serious consequences such as
alerting Immigration and Customs Enforcement to immigration violations
and removability of the witness, as well as admission of criminal liability.”).
35
evidence here, Evidence Code section 352 demanded a more particularized
showing of prejudice.
In sum, the trial court improperly discounted the fact that Doe 2’s
preliminary hearing testimony provided an adequate foundation to inquire
into her belief that stepping forward with accusations under oath of sexual
abuse by Castaneda-Prado would aid her mother (which meant there was no
need for the elaborate exploration of U visa related matters the court believed
might be confusing, distracting and time consumptive), and there is no basis
in the record to find a substantial risk of prejudice to any party or witness in
this case. In the Evidence Code section 352 balance—appropriately struck—
the probative value of the proffered evidence of bias here was weighty, and
there was virtually nothing of any significance on the other side. We must
therefore conclude the court abused its discretion. Because this is not a case
in which it can be said that the evidence at issue was of “marginal” relevance
(People v. Brown, supra, 31 Cal.4th at p. 545) or otherwise inadmissible
under a routine exercise of the trial court’s authority to regulate the limits of
cross-examination, we must move on to the second stage of the Van Arsdall
analysis.16
16 The Attorney General argues that, even if the trial court’s
evidentiary ruling barring any cross-examination on the U visa issue was
error, the error was harmless. Here, too, he relies on Villa. (Villa, supra,
55 Cal.App.5th at p. 1054 [“Even if the trial judge had erred by excluding the
evidence Doe was seeking a U visa, Villa cannot establish prejudice.”].) But
Villa never reached the last step of the confrontation clause analysis. It is
hard to tell what the precise legal basis of the Villa court’s alternative
harmless-error rationale is because the court does not mention Van Arsdall,
consider the “significantly different impression” test (Van Arsdall, supra,
475 U.S. at p. 680), or cite to either Chapman or People v. Watson (1956)
46 Cal.2d 818. As we read the court’s opinion, the prosecution’s evidence in
that case appears to have been strong enough to meet both prejudice
36
3. The Confrontation Clause
Upon independent review of the record, we conclude that Castaneda-
Prado has established a confrontation clause violation under Van Arsdall
because (1) Doe 2’s testimony at the preliminary hearing supplied a
foundation for cross-examining her about whether she expected her
accusations against Castaneda-Prado would help her mother gain an
advantage in obtaining a U visa, (2) by granting a motion in limine
precluding all inquiry into the topic of U visas and then adhering to that
blanket ruling when Castaneda-Prado attempted to cross-examine Doe 2
about whether she expected to derive any benefit from testifying against
Castaneda-Prado, the trial court “prohibited [him] from engaging in
otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness” (Van Arsdall, supra, 475 U.S. at
p. 680), and (3) since Castaneda-Prado had no other meaningful way to
impeach Doe 2, the court’s rulings barring him from exploring the topic might
have left a reasonable jury with a “significantly different impression” of
Doe 2’s credibility than it otherwise would have had (ibid.). Much of our
analysis on this constitutional issue tracks our Evidence Code section 352
abuse of discretion analysis, but the third point—that Castaneda-Prado was
left with almost nothing to use on the subject of bias in his attempted cross-
standards. But regardless of how Villa’s harmless-error discussion is read,
the ambiguity in Villa on this point highlights why we have taken care in this
case to delineate the two strands of analysis under Van Arsdall, one under
state law evidentiary standards, and a second, purely constitutional inquiry.
In many cases—Villa appears to be an example—the distinction will be
immaterial. Here it matters. Our resolution of the first inquiry in
Castaneda-Prado’s favor requires us to reach the second.
37
examination of Doe 2, which as a practical matter meant her testimony stood
effectively unchallenged—goes further.
Of the two young victim witnesses in this case, the testimony from
Doe 2 was the most crucial. Castaneda-Prado was able to attack Doe 1’s
credibility by putting on evidence of her reputation for falsity and
manipulation of others. By contrast, all defense counsel had in his cross-
examination of Doe 2 were a few discrepancies in her account of what
happened compared to Doe 1’s account and the fact that Doe 2 testified for
the first time at the preliminary hearing that she had complied with
Castaneda-Prado’s demand to touch his genitals, a new detail that
highlighted some of the most incriminating evidence against him. If
Castaneda-Prado had been allowed to cross-examine Doe 2 on the topic of
U visa related evidence, it would have given him a powerful basis to question
her veracity.
Applying Van Arsdall’s “significantly different impression” test, we
conclude that a reasonable jury, presented with that avenue of attack, could
have viewed Doe 2’s testimony as the confabulated recollections of a 16-year-
old who found a way to help her mother attain legal residency, while also
supporting a close friend she believed was experiencing the trauma of
recalled childhood memories of abuse that Doe 2 had not in fact witnessed
and in fact knew nothing about. Davis is instructive. There, the trial court,
citing concerns about maintaining the statutorily protected confidentiality of
a witness’s juvenile record, categorically blocked defense counsel from
exploring the fact a juvenile witness may have wished to curry favor with the
prosecution to protect his probation status. The high court reversed,
explaining as follows: “While counsel was permitted to ask [witness] Green
whether he was biased, counsel was unable to make a record from which to
38
argue why Green might have been biased . . . . On the basis of the limited
cross-examination that was permitted, the jury might well have thought that
defense counsel was engaged in a speculative and baseless line of attack on
the credibility of an apparently blameless witness . . . .” (Davis, supra,
415 U.S. at p. 318.) Because defense counsel was permitted to pursue neither
line of inquiry, the facts here are even more compelling. Castaneda-Prado’s
counsel was blocked from asking whether Doe 2 had a previously admitted
expectation of deriving benefit from her testimony and from making a record
as to why she had that expectation.17
Moving to prejudice, we conclude the Attorney General has failed to
carry his burden of showing that the confrontation clause error here was
harmless beyond a reasonable doubt. In so concluding, we take into account
not just the disabling effect the trial court’s Evidence Code section 352 ruling
had on Castaneda-Prado’s ability to cross-examine Doe 2, but all the other
factors the Van Arsdall court outlined as considerations for the Chapman
harmless-error analysis, specifically “the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative,
17 We emphasize here that we do not endorse any particular reading of
the evidence and we certainly do not intend to weigh in on whether either or
both of Doe 1 and Doe 2, or Castaneda-Prado for that matter, testified
truthfully. (See Davis, supra, 415 U.S. at pp. 317–318 [“We cannot speculate
as to whether the jury, as sole judge of the credibility of a witness, would
have accepted this line of reasoning had counsel been permitted to fully
present it. But we do conclude that the jurors were entitled to have the
benefit of the defense theory before them so that they could make an
informed judgment as to the weight to place on Green’s testimony which
provided ‘a crucial link in the proof . . . of petitioner’s act.’ [Citation.] The
accuracy and truthfulness of Green’s testimony were key elements in the
State’s case against petitioner. The claim of bias which the defense sought to
develop was admissible to afford a basis for an inference of undue pressure
because of Green’s vulnerable status as a probationer.”].)
39
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and . . . the overall strength of the prosecution’s case.”
(Van Arsdall, supra, 475 U.S. at p. 684.) Doe 2 was, as we have noted, the
most crucial prosecution witness in the case; her testimony was not
cumulative, since it added new, more incriminating detail to Doe 1’s account;
and nothing decisively corroborated or contradicted her account. In a case
that rested almost entirely on credibility, even more so for Doe 2 than Doe 1
(the pretext call featured by the prosecution, after all, concerned only Doe 1),
we cannot say the overall strength of the prosecution’s evidence compelled
but one conclusion—Castaneda-Prado was guilty as charged beyond a
reasonable doubt. Even if the jury chose to believe Doe 1 and not Doe 2, that
would have spared him of convictions on two of the five counts against him,
not to mention exposure to the multiple victim allegations (which drove the
severity of the punishment up significantly).
We also take into account as particularly important to the prejudice
analysis the prosecutor’s closing argument. In support of the convictions for
sexual abuse of both victims, the prosecutor highlighted the absence of any
proven basis to question the motives of either Doe 1 or Doe 2. He argued
that, in assessing Doe 1’s and Doe 2’s credibility, there was “a lack of an
identifiable reason to lie,” and that “no evidence” had been “presented” that
Doe 1 or Doe 2 had something “to gain,” such as money or an advantage in
custody proceedings. As noted, defense counsel unsuccessfully objected to
these statements, and, outside the presence of the jury, counsel contended the
prosecutor had engaged in “improper argument” because there was “a
potential benefit and reason to lie” (the U visa issue) that had been
“suppressed.” After hearing the prosecutor’s response (i.e., that his argument
40
and the corresponding PowerPoint slide were proper because they were
focused on “the body of evidence that’s been presented in this case”), the trial
court overruled the defense objection “with the previous basis being stated”
(i.e., the court relied on its earlier ruling that the U visa evidence should be
excluded).
Even when a ruling excluding evidence is correct—the underlying
evidentiary ruling here was not—it is improper for an advocate to take unfair
advantage of the ruling in closing argument, which is what this prosecutor
did. “It is well settled that it is misconduct for a prosecutor to base argument
on facts not in evidence.” (People v. Mendoza (2016) 62 Cal.4th 856, 906.)
And “[i]t is improper for counsel to assert or imply facts not in evidence that
counsel knows excluded evidence could refute.” (Jackson v. Park (2021)
66 Cal.App.5th 1196, 1214; id. at pp. 1205–1206, 1214, 1217 [affirming grant
of new trial in civil case based on defense counsel’s misconduct in closing
argument, including his assertion that evidence of defendant’s intoxication
did not exist when counsel knew it existed and the evidence had been
excluded at the defense’s behest]; accord, Hoffman v. Brandt (1966) 65 Cal.2d
549, 555 [defense counsel’s argument in civil case falsely implying defendant
lacked insurance was misconduct requiring reversal of judgment].)
No matter how fervently the prosecutor here believed in Castaneda-
Prado’s guilt and in the egregiousness of Castaneda-Prado’s behavior toward
Does 1 and 2, he had no business suggesting to the jury that the absence of a
motive to lie was significant to the issue of veracity, when in fact he knew
that there was such evidence, having vigorously and successfully fought to
keep the jury from hearing it. To put it mildly, the argument was
disingenuous. Prosecutors should never assert or imply that there is no
evidence on a certain point when they know such evidence exists but was
41
excluded by the court. Such arguments may, in an appropriate case, result in
the granting of a new trial motion or an appellate reversal on grounds of
prosecutorial misconduct. Castaneda-Prado timely objected to the
prosecutor’s closing argument on this point, but on appeal he chose not to
raise the issue of misconduct; instead, he has framed the prosecutor’s closing
remarks about the absence of any proven motive to lie as a prejudice
argument. While we have no occasion to rule upon any issue of prosecutorial
misconduct, we conclude that Castaneda-Prado’s prejudice argument is well-
taken, in no small part because of the prosecutor’s closing argument. (See
D.Z. v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 232 [in a
case where the underlying ruling excluding evidence on a certain point is
erroneous, a closing argument that highlights the lack of evidence on that
point may support a conclusion that the evidentiary error was prejudicial].)
III. DISPOSITION
The judgment is reversed and the cause is remanded for further
proceedings consistent with this opinion.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
FINEMAN, J.*
* Judge of the Superior Court of California, County of San Mateo,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
42
Trial Court: Superior Court of California, County of Sonoma
Trial Judge: Hon. Robert M. LaForge
Counsel: Jeffrey Kross, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Donna M. Provenzano,
Supervising Deputy Attorney General, and Jalem Z.
Peguero, Deputy Attorney General for Plaintiff and
Respondent.
People v. Castaneda-Prado – A164897