Filed 12/30/19 P. v. Santa Maria 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Nevada)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

GUADALUPE ESTEBAN SANTA MARIA,

Defendant and Appellant.

C087157

(Super. Ct. No. F16000158)

Following a jury trial, defendant Guadalupe Esteban Santa Maria was convicted of two counts of spousal rape (Pen. Code, § 262, subd. (a)(1)), one count each of lewd act on a child under the age of 14 (§ 288, subd. (a)), sexual battery (§ 243.4, subd. (e)(1)), and the misdemeanors molesting a child under the age of 18 (§ 647.6, subd. (a)(1)) and battery (§ 242). The trial court sentenced defendant to serve 14 years in state prison.

On appeal, defendant contends (1) it was an abuse of discretion to deny his new trial motion based on newly discovered evidence that one victim recanted after trial, and (2) trial counsel was ineffective based on six instances of alleged ineffective assistance. We conclude the trial court did not abuse its discretion in denying the new trial motion and trial counsel was not ineffective. The judgment is affirmed.

BACKGROUND

Prosecution Case

V.P.

V.P. was married to defendant for nearly 20 years before their divorce. Problems developed during the last five years of their marriage. V.P. suffered from cerebral palsy, causing her to walk with a limp, lose feeling in her body, and move clumsily. Defendant forced himself on her sexually on more than 10 occasions. The first time this happened, V.P. woke up to defendant having sex with her. V.P. told him to stop, but defendant did not stop until he finished. Her attempts to resist were unsuccessful.

Every one of the incidents occurred under similar circumstances. She would tell defendant she was sleeping, she did not feel well, did not want it, and asked him to stop. Defendant would reply that she was married to him and therefore his property. Although she cried out during these incidents, defendant would not stop until about a minute after hearing her cry. When V.P. confronted defendant about his actions, he said they were normal because they were married.

A.P.

A.P. was born in 1998. Defendant was a friend of her family. A.P. was friends with defendant’s daughter E.E. and often stayed over at defendant’s house. Sometimes she and her cousin M.P. would spend the night at the house with E.E.

A.P. eventually felt uncomfortable going over to defendant’s house. Several times she woke up to defendant walking around in his underwear, saying he was looking for the television remote. In one instance, defendant rubbed A.P.’s body when she, M.P., and E.E. were sleeping in the same room on two couches.

Another incident, witnessed by M.P., happened the last time A.P. stayed at defendant’s house. A.P. and M.P. were sleeping next to E.E.’s bed and her mirrored closet doors, while E.E. slept on her bed. They had fallen asleep watching television. M.P. woke up in the middle of the night and saw defendant reflected in the closet door mirrors. Defendant turned the television off, stood over A.P., and pulled off her blankets. He then pulled down A.P.’s strapless shirt and started touching her breasts. M.P. tried to wake up A.P. by scooting over, but she continued to sleep. Defendant got up very quickly and walked to the bathroom after A.P.’s younger brother walked into the room. Defendant returned after A.P.’s brother left; he sat down near A.P. and looked at her. Defendant then pulled up A.P.’s shirt before leaving the room. M.P. later cried, which awakened A.P. She was too scared to tell A.P. what happened, so she said she could not fall asleep.

M.P.

M.P. was born in 2000 and grew up with defendant’s children, who were about her age. She is A.P.’s cousin and defendant was her godfather. Her mother, P.P., knew defendant since P.P. was 16. The two families spent much time together; M.P. was particularly close to defendant’s daughter E.E. and she often spent the night at defendant’s house.

Two to three years before M.P. talked to law enforcement authorities in 2014, M.P. and E.E. had made makeshift beds on the floor one night. E.E. was asleep while M.P. was still awake. Defendant entered the living room wearing only his underwear. Scared that defendant would try to do something if she was awake, M.P. pretended to be asleep. Defendant walked over and stood next to M.P, which made her cry. He pulled down the blankets and started touching her in her private parts, over her underwear and below her waist. He rubbed her intermittently for about two minutes. Defendant told her she was okay and everything would be fine when M.P. continued to cry. E.E. woke up and told M.P. everything would be fine.

Defendant sat in the living room after he stopped; E.E. told M.P. to go back to sleep. M.P. called her mother and cried after defendant left the room and E.E. went to sleep. She did not tell her mother what happened because she was scared.

On three or four other instances when she slept over at defendant’s house, M.P. would wake up to defendant stroking and playing with her hair.

M.P. later told her mother about what defendant did to her and to A.P. P.P. immediately called V.P. and related what M.P. had told her. The two mothers decided to wait until after an upcoming gymnastics tournament to call Child Protective Services.

K.P.

K.P. is a friend of V.P. In November 2014, she stayed at defendant’s home after a dental procedure, sleeping on the bed in V.P.’s bedroom, next to K.P.’s dog. After being awakened by her dog’s shaking, K.P. realized her shirt was pulled up and her breasts exposed. Defendant was standing in the corner, next to the television. K.P. walked to the porch; defendant followed her and said she had been drinking. K.P. denied it and called V.P., telling her to come home from work.

K.P. called defendant the next morning, telling him what he did was wrong and he would continue this behavior if he did not admit to it. Defendant apologized and admitted having a problem.

Defendant’s Statements

In 2014, defendant made an appointment with a resource center for victims of domestic violence, sexual assault, and human trafficking. He met with Laura Chavez, a bilingual advocate for the center. Speaking with defendant in Spanish, Chavez assessed defendant to determine whether he was eligible for the center’s services. Defendant said he came to the center because he had a sex problem and could not control his sexual impulses. When Chavez said the center helped victims, defendant replied that he was a victim because he could not say no to sex. Defendant admitted having sex with his wife until her vagina was completely swollen and red, and without regard to whether she wanted to, because defendant felt sex was a duty. He believed his wife had an obligation to have sex with him. Chavez thought defendant was not a victim the center would assist, and gave him information for resources on sex addiction. She reported defendant’s statements to the police because Chavez was a mandated reporter.

Defendant went to the Nevada County Sheriff’s office for an interview on December 17, 2014. He denied forcing his wife to have sex. He thought an example of force would be tying someone up and forcing the person to perform an act against their will or when the person could not resist. He admitted having sex with his wife after she asked him to stop.

In an interview following his arrest on November 13, defendant admitted lifting up K.P.’s shirt because he found her “hot” and attractive.

Prior Uncharged Misconduct

P.P. and her ex-husband were friends with defendant and V.P. for nearly 20 years, and the two families’ children grew up together.

In 2008, P.P. was taking her sons to a soccer tournament, and was sharing a hotel room with defendant, V.P., and defendant’s son, who also played in the tournament. P.P. slept in one of the beds with one of her sons, with her other son sleeping on the floor with defendant’s son. Defendant and V.P. slept in the other bed. P.P. woke up to find defendant in his boxer shorts, crawling on the floor between the beds. Defendant reached up to her shirt and touched her breasts over her bra. P.P. rolled over and pretended to be asleep. She never confronted defendant because P.P. did not want to break up his marriage or the close relationship between their two families.

Another incident happened on New Year’s Eve in either 2012 or 2013. P.P. was hanging out and drinking at defendant’s house. She passed out on a couch with a blanket over her. She awakened to defendant in his boxer shorts trying to get inside the blanket and touch her. P.P. could feel defendant’s hand crawling up into the blanket as he tried to get into her shorts and pants. Defendant’s hand went further up her shirt and touched her breasts. He did not stop when P.P. rolled over. After she rolled over a few more times, defendant said he was looking for a remote control.

A.P.’s mother, Mo.P., knew defendant for about 20 years. In 2014, she went to a barbecue at defendant’s house with her family and a family friend. Everyone went to sleep after the barbecue; Mo.P. slept at one end of a large couch in the living room, her son slept on the other end, her husband slept on an adjacent love seat, and her friend slept on the floor. The television was on when they feel asleep.

Defendant was standing next to Mo.P. with his hand over her when Mo.P. woke up. Mo.P. testified, “I just remember like I could feel somebody like right in my area. I opened my eyes and Lupe is standing there with his hand over me. He’s like, ‘I am looking for the control. The T.V. is too loud.’ I said, ‘I don’t have it. Richard has it.’ He said, ‘Okay.’ Then he walks away real slow. I am already awake. I am laying there with my eyes closed.” She remained on the couch with her eyes closed. Defendant again walked towards Mo.P. and tried to grab her. When Mo.P. opened her eyes, defendant again said he could not find the remote control. Defendant returned to his room after Mo.P. again said her friend had the remote and he should turn off the television manually.

Defense Case

Nevada County Sheriff’s Sergeant Sean Peter Scales interviewed Mo.P. and A.P. A.P. did not have an independent recollection of defendant touching her, knowing only what M.P. had told her. When he asked Mo.P. whether she thought V.P. made up the allegations against defendant to get a divorce, she replied, “I think she used the girls as an excuse.”

E.E. testified that defendant never touched her inappropriately. Neither M.P. nor A.P. ever complained to her about defendant touching them. She was a very light sleeper and did not recall an incident where defendant touched M.P. when she was sleeping over with E.E. A.P. often did not want to leave when she slept over at defendant’s house.

Testifying on his own behalf, defendant denied forcing V.P. to have sex with him. V.P. had a medical condition that sometimes made intercourse painful for her, but she always said it was okay. He did not touch M.P., A.P., P.P., or Mo.P. inappropriately. He did lift up K.P.’s shirt, but did not touch her breasts.

Defendant thought V.P. made up her allegations because she was unhappy with defendant and cheating on him. Mo.P., P.P., M.P., and A.P. all falsely accused defendant because they loved V.P. very much and wanted to help her. The incident with K.P. was the only time he was not able to control his sexual impulses. He believed this incident was half K.P.’s fault and half his fault because K.P. provoked him all of the time.

Defendant made the appointment at the resource center because he wanted to get information from someone who spoke Spanish. He told Chavez he was looking for marriage counseling. Chavez told defendant she did not do that type of work, as she worked with people who suffered from violence. He never told Chavez that he had any problems, but instead was trying to explain the allegations against him.

Rebuttal

Sergeant Scales testified on rebuttal that, when asked if he thought A.P. and M.P. were lying if they said defendant touched them inappropriately, E.E. replied that if they said that, then they were not lying. He also thought defendant would not do anything like that.

DISCUSSION

I

Newly Discovered Evidence

Defendant contends the trial court abused its discretion in denying defendant’s motion for a new trial based on newly discovered evidence. We conclude there was no abuse of discretion.

A.

New Trial Motion

Defendant filed a new trial motion based on newly discovered evidence of a signed statement from V.P. executed after the trial retracting her spousal rape allegations. The recantation was appended to the motion, and reads as follows:

“I would like to retract my claims of spousal rape against Santa Maria Guadalupe. Although we were experiencing marital problems, rape was not one of them. I feel that my statement was twisted by the investigators and others involved in this case. Even though I wanted nothing to do with this case I was forced to testify and was told that I could face charges if I didn’t do so. I feel that words were blown out of proportion and got out of hand quickly. I felt I was pressured to go along with the accusations being made after being misunderstood so many times.

“Although Guadalupe and I had our marital problems, he has always been a good father and has always been present in our children’s lives, never failing to provide for their needs. Our children have lived with their father from birth until the day he was incarcerated on 8/23/17. Our children love and need their father to be present in their lives.

“My sincere apologies

“[V.P.]”

The trial court denied the motion finding, “I observed the witness testifying and the jury did as well. As you are well aware, [] recantation[s] would have to be looked upon very carefully before they would amount to grounds for a new trial and I don’t find it [rises] to that level here. I’m going to deny the motion for a new trial.”

B.

Analysis

Section 1181, subdivision 8, permits one convicted of a crime to move for a new trial “[w]hen new evidence is discovered material to the defendant, and which he [or she] could not, with reasonable diligence, have discovered and produced at the trial.” (People v. Delgado (1993) 5 Cal.4th 312, 328, fn. 6.)

“ ‘ “The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.” ’ [Citation.] [¶] In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘ “1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v. Delgado, supra, 5 Cal.4th at p. 328.) “In addition, ‘the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable.’ [Citation.]” (Id. at p. 329.)

“The fact that an important prosecution witness has recanted does not necessarily compel the granting of the motion. In such a case the trial judge is required to weigh the evidence offered in support of the motion, and he [or she] may reject it if he [or she] deems it unworthy of belief. [Citations.]” (People v. Langlois (1963) 220 Cal.App.2d 831, 834.) “In this state, it is settled that the offer of a witness, after trial, to retract his [or her] sworn testimony is to be viewed with suspicion. [Citations.]” (In re Weber (1974) 11 Cal.3d 703, 722; Langlois, at p. 834.)

The trial court implicitly found V.P.’s retraction was not credible when it denied the new trial motion. We see no reason not to defer to the trial court’s implicit finding. We reject defendant’s claim.

II

Ineffective Assistance of Trial Counsel

Defendant, through new retained counsel, also moved for a new trial based on ineffective assistance of trial counsel, raising six instances of alleged ineffective assistance. The trial court rejected the allegation.

To establish ineffective assistance, defendant must show counsel’s performance was deficient and that he or she was prejudiced as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) “[A]s we have long observed, if the record does not preclude a satisfactory explanation for counsel’s actions, we will not, on appeal, find that trial counsel acted deficiently. [Citations.]” (People v. Stewart (2004) 33 Cal.4th 425, 459.)

“On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009; see People v. Mickel (2016) 2 Cal.5th 181, 198 [reversal is warranted on direct appeal only if there is “affirmative evidence that counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission”].)

1. Defendant claims trial counsel failed to call the following witnesses: V.P.’s sisters E.S. and E.M., and her mother R.U. All gave statements to a defense investigator that were summarized in a statement appended to the motion. We summarize them as follows.

E.S. stated V.P. was the dominant personality in the marriage and was very controlling. She made all of the big decisions and all of the decisions regarding their children. Several times when working at E.S.’s restaurant, defendant would have to contact V.P. before making any decisions about his work schedule. V.P. would often use demeaning and disparaging terms when speaking with defendant in front of others, including their children.

E.S. told the investigator that V.P. had always been a liar. According to E.S., V.P. would lie about things that did not matter or had little impact, such as whether she had dropped an orange peel on the kitchen floor. E.S. confronted V.P. about having an affair with one of E.S.’s employees at the market she owns. V.P., who flirted in public with the employee, denied having the affair; the employee later admitted having the affair.

E.S. also confronted V.P. about having an intimate affair with one of E.S.’s former employees, J.G., who worked at the market from 2013 to 2015. J.G. told defendant he was having an affair with V.P.; at the same time a photo of E.S. and J.G. lying in bed together, partially clothed was posted on V.P.’s Facebook page. She also thought V.P. had an affair with another of E.S.’s former employees, a person defendant considered to be his friend. E.S. thought defendant did not commit the charged crimes, and V.P. wanted him out of her house and did not understand the seriousness of her allegations.

E.M. told the investigator she saw several photographs of V.P. and other men on Facebook after V.P. made the allegations against defendant. V.P. was in a bar or drinking establishment in one picture. Another photograph showed V.P. sitting at the end of a bed dressed in a nightgown while a man was lying in the bed, shirtless with a sheet covering him to the waist. A family meeting was held to address V.P.’s marriage to defendant and her allegations against him; V.P., when confronted about the pictures, said J.G. was just a friend, but E.M. thought she was lying.

R.U. told the investigator she became concerned about her daughter V.P.’s marriage around June 2013 because V.P. was often rude, angry, and insulting to defendant. She became concerned about V.P.’s lack of honesty around the same time. V.P. accused defendant of inappropriate behavior.

At one point, R.U. convinced defendant to stay with her for two weeks to give V.P. some space. R.U. believed V.P. wanted defendant out of the house so she could entertain other men there. According to R.U., her son S.U. witnessed V.P. entertaining other men in her home. R.U. saw on V.P.’s Facebook page four different photographs of V.P. and J.G. lying together in bed. After V.P. made the allegations, defendant told R.U. he knew V.P. was having an extramarital affair.

Defendant claims these witnesses would have cast doubt on V.P.’s credibility. He argues trial counsel’s failure to call these “obviously material and exculpatory witnesses” could not have been “a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.” From this, he concludes trial counsel was ineffective.

“Whether to call certain witnesses is . . . a matter of trial tactics, unless the decision results from unreasonable failure to investigate. [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 334.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Trial counsel knew of all three witnesses because they were on the defense’s witness list before trial. Thus, the decision not to call them was a tactical one, rather than based on an unreasonable failure to investigate. We defer to trial counsel’s tactical decision.

2. Defendant claims trial counsel failed to aggressively cross-examine V.P. regarding her motive to provide false testimony. He claims trial counsel should have cross-examined V.P. about what E.S., E.M., and R.U. told the defense investigator, namely her alleged extramarital affairs and that she, rather than defendant, had the control in the relationship. This is another way to raise the claims regarding failure to call these witnesses. To what extent and how to cross-examine witnesses is typically within the wide range of tactical decisions competent counsel must be allowed to make. (People v. Cleveland (2004) 32 Cal.4th 704, 746-747.) The decision not to directly attack V.P. or to bring up what appears to be conflict within her family regarding defendant is within the range of tactical decisions made by competent counsel. We reject this claim.

3. Defendant claims counsel was ineffective in failing to seek suppression pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] of his second statement to law enforcement.

Defendant was first interviewed at the Nevada County Jail following his arrest on November 13, 2014. He was given a Miranda warning before questioning, appeared to understand his rights, and agreed to questioning after the warning. Defendant admitted during questioning that he had lifted up K.P.’s shirt one time. He also told the detective that he found K.P. attractive and “hot.”

Defendant’s second interview, the one in question here, took place on December 17, 2014. Defendant was no longer under arrest at the time, and he came to the interview at the sheriff’s office on his own accord. At the beginning of the interview he was advised that he was free to leave at any time. He was also told the door to the interview room was unlocked. Defendant told the officers he understood and he needed to leave for work at 5:00 p.m. Toward the end of the interview, defendant got out his keys and said he needed to go to work. Defendant was told that was okay. Shortly thereafter, defendant was given directions on how to get out of the building. The interview lasted a little over 65 minutes, during which defendant made incriminating statements.

For Miranda to apply, “ ‘the suspect must be in “custody,” and the questioning must meet the legal definition of “interrogation.” ’ [Citation.]” (People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) “Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. [Citations.] When there has been no formal arrest, the question is how a reasonable person in the defendant’s position would have understood his [or her] situation. [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 395.)

While defendant was under arrest (and given a Miranda warning) at the first interview, he was not under arrest at the second interview. He came to that interview of his own choice, was told he was free to leave at any time, successfully terminated the interview, and was allowed to leave. Under no circumstances could defendant be considered in custody during this interview. Thus, a Miranda motion to suppress this interview would fail. Failing to raise a futile motion does not constitute ineffective assistance. (People v. Thompson (2010) 49 Cal.4th 79, 122 [“[c]ounsel is not ineffective for failing to make frivolous or futile motions”].)

4. Defendant claims trial counsel was ineffective in failing to object to Chavez’s testimony under the psychotherapist privilege.

A patient “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist.” (Evid. Code, § 1014.) For the purpose of defining the privilege, “ ‘confidential communication between patient and psychotherapist’ means information, including information obtained by an examination of the patient, transmitted between a patient and his [or her] psychotherapist in the course of that relationship and in confidence . . . .” (Evid. Code, § 1012.)

The problem with defendant’s contention is Chavez was not a therapist and there is no evidence defendant had reason to believe she was one when he made his statements to her. Chavez was employed as a bilingual advocate by a resource center for victims of domestic violence, sexual assault, and human trafficking. While psychotherapeutic resources were something Chavez might find for a victim who went to the center, she was not a therapist and nothing supports a finding that any part of her conversation with defendant came within the privilege. This is reinforced by Chavez’s testimony, in which she stated her conversation with defendant was merely to assess whether it was appropriate for defendant to receive services through the center. Trial counsel was not ineffective for declining to raise a futile privilege objection to Chavez’s testimony.

5. Defendant claims trial counsel was ineffective in failing to seek admission of previous allegations by M.P. that her stepbrother molested her.

During cross-examination of M.P., defendant’s trial counsel asked her a “[r]eal serious question now. Is this real[i]ty or is this a dream.” M.P. said it was reality. Counsel then started to ask about a previous incident when she was much younger, but the trial court sustained the prosecutor’s relevance objection.

In a discussion about the ruling outside the jury’s presence, defense counsel stated: “In her tapes and whatnot she talks about how when [s]he was roughly seven years old she had previously been the victim of molest[ation]. She’s now having a discussion about that it felt like it was a dream. All that I want to ask is just the one question on that. Have you previously had any incidents where you were the victim of a molest[ation]? I just want a yes or no to that. I am not going into it in the least. Then I just want to discuss the issue about whether this is truth or a dream. That’s all I want to do.”

The prosecutor argued this line of questioning was prohibited by the rape shield law, Evidence Code section 782. The trial court ruled defendant did not comply with Evidence Code section 782 so its ruling on the prosecutor’s objection would stand.

Defendant argues on appeal that trial counsel was ineffective for failing to seek admission of this evidence under Evidence Code section 782. He asserts the prior incident would be relevant as a prior false accusation of sexual misconduct. (See People v. Franklin (1994) 25 Cal.App.4th 328, 336.)

Defendant asserts trial counsel obtained a police report containing 2009 allegations of molestation made by M.P. against her stepbrother, and that most of the complaining witnesses in this case along with E.E. were interviewed about it. He further claims the accused denied the charges and there was no evidence criminal prosecution was pursued. In support of these claims, he cites a single page from the report prepared by substitute counsel’s defense investigator for the new trial motion. The evidence on this page supporting this claim is R.U. telling the defense investigator she heard from P.P. that she did not want to file a police report against defendant because M.P. had already been molested in Placer County where she was subject to investigation and scrutiny, and had two-and-one-half years of therapy. R.U. also told the investigator that the accused, a son of P.P.’s then-boyfriend, had been tried and convicted.

Under California’s rape shield law, evidence of the complaining witness’s sexual conduct with persons other than the defendant may be admissible “when offered to attack the credibility of the complaining witness, provided that its probative value outweighs the danger of undue prejudice and the defendant otherwise complies with the procedures set forth in Evidence Code section 782. First, the defendant must file a written motion and an offer of proof detailing the relevancy of the evidence. [Citation.] If the court finds the offer sufficient, it shall order a hearing out of the presence of the jury to allow questioning of the complaining witness regarding the offer of proof. [Citation.] If the court finds the evidence relevant under section 780 and admissible under section 352, the court may make an order stating what evidence may be introduced by the defendant and what questions are permitted. [Citation.]” (People v. Fontana (2010) 49 Cal.4th 351, 354.)

Evidence Code section 782 is designed to protect victims of molestation and sexual assault “from ‘embarrassing personal disclosures’ unless the defense is able to show in advance that the victim’s sexual conduct is relevant to the victim’s credibility. [Citation.]’ ” (People v. Bautista (2008) 163 Cal.App.4th 762, 782.) “By narrowly exercising the discretion conferred upon the trial court in this screening process, California courts have not allowed the credibility exception in the rape shield statutes to result in an undermining of the legislative intent to limited public exposure of the victim’s prior sexual history. [Citations.]” (People v. Chandler (1992) 56 Cal.App.4th 703, 708.) Our high court has emphasized that “ ‘[g]reat care must be taken to insure that this exception to the general rule barring evidence of a complaining witness’ prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a “back door” for admitting otherwise inadmissible evidence.’ [Citation.]’ ” (People v. Fontana, supra, 49 Cal.4th at p. 363.)

The evidence in the record cited by defendant does not support his claim that the prior allegation was false. Assuming there is evidence the matter was never prosecuted, this does not mandate an inference that the prior claim was false. Litigating the truth of the prior claim of abuse against a third party risks a subsidiary trial on this issue that may cause undue delay and confuse the jury, both valid reasons to exclude the evidence under Evidence Code section 352. This is the type of evidence that would be excluded under Evidence Code section 782. We conclude trial counsel was not ineffective.

6. Defendant’s final claim is trial counsel was ineffective in failing to cross-examine the detective who interviewed him about alleged errors he made summarizing defendant’s interview on direct examination.

Direct Examination

Nevada County Sheriff’s Detective Russell Green testified on direct examination that, during the second interview, defendant had “two different responses” when asked if he had sex with his wife without her consent. Detective Green explained: “When asked if he had sex with her without her consent forcefully he said no. But when asked if he had sex with her after she had asked him to stop he said that he did.” Detective Green said defendant explained his wife had a painful medical condition and she would ask defendant to stop after experiencing pain during sex. According to Detective Green, when asked if this was confusing or did he continue, defendant said, “Yes, I would continue.” Detective Green also testified defendant specifically confirmed V.P. would tell him no while they were having sex but he would continue.

Interview Transcript

The transcript of the second interview shows Detective Green asked defendant if he would ever “make her have sex with you or anything like that?” Defendant answered, “No, no, not like that. Not like that.” Asked what he meant by “no,” defendant explained, “I mean, it was like, you know, y-, w-, we both agree, you know? But, w– I didn’t ever force her like she says. You know, I don’t know why she’s sayin’ that.” Defendant then interrupted Detective Green to say: “Maybe that’s what she feels like that, but, before, uh, she, uh . . . she always had, like when we did something, like sex s-, things like . . . . [¶] . . . [¶] –um, she always have problem with her body for those thing, like things under n-, n-, there and has to have remove it. And you know, probably it hurts. You know, probably that. You know, but it was like . . . .”

Later in the interview, asked what it meant to force someone to have sex, defendant replied, “Oh, uh, w-, well, when . . . probably when somebody says ‘no’ it’s no– supposed to be no. You know? That’s, you know, number one, I think.” Continuing, he said, “And now if you ever go over that– if you do, like ___ (one word unintelligible) somebody, you know? You know, and, and, and do it even if you don’t want to, and, that, you know, is even worse. You know?” Asked what happens if a person first says yes but later says no, defendant said that is where you get confused. Defendant said V.P. had done this. He also admitted it would get confusing when his wife did this. V.P. would tell him to stop after he started but he never forced her “like” by holding her down.

Cross-examination

Trial counsel cross-examined Detective Green about defendant’s second interview as follows:

“Q. When you asked him about the issue of sex with his wife he [was] pretty clear that he didn’t believe that he had forced himself upon her, wasn’t he?

“A. Yes.

“Q. Did you ask him if she ever said no?

“A. I don’t know if I did during that interview.

“Q. I’m sorry. I didn’t hear you.

“A. I don’t know if I did during that interview.

“Q. Did you ask him during either of the interviews whether she ever said no?

“A. Yes. I believe that was discussed.

“Q. What did he say?

“A. As I indicated, he clearly said to Captain Burget that she would have pain and he would continue.

“Q. I understand that he said that she had pain but did he ever say that she said no?

“A. I don’t know if he said that she said specifically no.”

Shortly thereafter, counsel asked Detective Green: “Did he admit to having forceful sex with his wife?” The detective answered, “No. Not in the definition that we were talking about.” The following exchange took place soon after:

“Q. Did she say she wanted it to stop or did she say it was painful?

“A. As I indicated, I don’t know — I don’t know that she said specifically no, but based on her testimony yesterday and based in speaking with her she indicated to me that he clearly knew and that —

“Q. He knew it was painful?

“A. Right. And that he shouldn’t have continued.

“Q. Where was the admission that he knew it shouldn’t have continued? When did he admit that?

“A. He didn’t say that specifically.”

Defendant claims trial counsel did not properly cross-examine Detective Green about the content of the interview. Trial counsel’s cross-examination elicited from Detective Green that defendant said he did not force sex on V.P. and he never said he continued to have sex with her when she said no. This is within the parameters of competent representation, and we decline to second-guess trial counsel on the particular tactics employed to cross-examine this witness.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

MAURO, Acting P. J.

/s/

KRAUSE, J.