Filed 3/27/18 P. v. Banaag CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY ALMERIDA BANAAG,

Defendant and Appellant.
C079952

(Super. Ct. No. 13F05401)




A jury found defendant Jerry Almerida Banaag guilty of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and five counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The trial court sentenced him to an aggregate term of 46 years to life in prison.
On appeal, defendant contends: (1) the trial court’s refusal to allow him access to certain Child Protective Services (CPS) records to impeach the victim violated his federal constitutional rights; (2) the court committed prejudicial error when it prohibited him from using documents from a family court file for purposes of impeachment; (3) this (appellate) court violated his federal constitutional right to appeal the judgment by refusing to unseal certain CPS records; and (4) the cumulative effect of the trial court’s evidentiary errors requires reversal. Disagreeing, we affirm the judgment.
FACTUAL BACKGROUND
The victim, Jane Doe, was born in December 2000. At the time of trial, she was 14 years old and lived with her mother, Hazel V.
In 2003 or 2004, Hazel began dating defendant. Sometime thereafter, he moved into the family home. At trial, Jane claimed that defendant sexually abused her numerous times over the course of several years.
Jane initially described two incidents that occurred a few days apart in her mother’s bedroom when she was six or seven years old and in second grade. During these incidents, defendant unzipped his pants and made Jane touch his penis by guiding her hand until he ejaculated. Jane claimed that defendant made her do the same thing a “few times a week” through the fourth grade. While most of the touching occurred in the family home, Jane recounted an incident where she touched defendant’s penis inside a parked car while they were waiting for Hazel in a Wal-Mart parking lot.
Jane described two additional incidents that occurred sometime between when she was in second grade and when she started fifth grade. The first incident occurred after defendant, Hazel, and Jane had gone into the Jacuzzi. While Hazel was in the shower, defendant took Jane into a bedroom and laid her down on the floor. He then took her bathing suit off and put his penis “slightly” inside her bottom. When Jane told defendant he was hurting her, he stopped. In the second incident, defendant made Jane touch his penis while he guided her hand as she sat on the couch. He then touched her vagina with his hand underneath her clothing until he ejaculated. According to Jane, defendant touched her vagina in the same manner two or three other times during the time period from when she was in second grade until she completed fourth grade.
Jane also recounted the details of other instances of abuse that occurred when she was in third or fourth grade. In one of the incidents, defendant made her orally copulate him in her mother’s bedroom. Jane claimed defendant made her orally copulate him on at least five additional occasions. In another incident, defendant orally copulated Jane in the living room while she was watching television. Jane claimed that defendant orally copulated her on one other occasion.
Jane told her mother about the sexual abuse for the first time when she was seven or eight years old. She claimed that defendant was touching her but did not provide any details about the touching. Hazel did not immediately confront defendant or report him to the police. Instead, she told Jane she would keep an eye on him. According to Jane, Hazel’s reaction made her feel alone and think Hazel did not believe her. Following this conversation, defendant continued to abuse Jane.
When Jane reported the sexual abuse to her mother a second time, Hazel confronted defendant. Defendant yelled at Jane in front of Hazel and told Jane to stop lying. Because Jane was scared defendant was going to hurt her and her mother, she said, “okay,” in response. The three of them agreed to never talk about Jane’s accusations again. According to Jane, her mother told her not to talk about the abuse because she did not believe Jane. Defendant continued to abuse Jane after this conversation.
Because Jane felt her mother was not protecting her, she subsequently told her grandmother that defendant was “hurting” her. Hazel, however, interrupted Jane and the conversation ended. Jane’s grandmother did not ask any follow-up questions. Thereafter, defendant continued to abuse Jane.
Defendant moved out of state when Jane was nine or 10 years old. When Jane was around 12 years old and in sixth grade, she told her godfather about the abuse in general terms. She explained that she did not want to go home because she was afraid defendant might move back in. After Hazel spoke with Jane’s great-grandparents, Hazel agreed to allow Jane to stay with them.
Around five months later, Jane’s godmother took Jane to the police department so she could make a statement about what defendant had done to her. Following an investigation into Jane’s allegations of sexual abuse, defendant was arrested and extradited to Sacramento.
DISCUSSION
I
Judicial Notice
On February 27, 2017, defendant filed a fifth motion to augment the appellate record with court records the trial court took judicial notice of. The court records are from a family court file involving the divorce of Jane’s parents and issues of child custody that occurred prior to Jane’s allegations of sexual abuse. On March 21, 2017, we treated defendant’s motion as a request for judicial notice and deferred ruling pending calendaring and assignment of the panel.
Evidence Code section 452 provides that judicial notice may be taken of the records of any court of this state. (§ 452, subd. (d).) Section 453 provides that the trial court shall take judicial notice of any matter specified in section 452 if a party requests it and the adverse party is given sufficient notice of the request. (§ 453, subd. (a).) “The reviewing court shall take judicial notice of (1) each matter properly noticed by the trial court and (2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.” (§ 459, subd. (a).)
On appeal, the People do not contend that the trial court erred in granting judicial notice. Because we conclude the trial court properly took judicial notice of the court records, we do the same here.
II
Evidentiary Claims
Defendant contends the trial court’s refusal to allow him access to 2005 CPS records to impeach Jane violated his federal constitutional rights to confront and cross-examine witnesses, compulsory process, effective assistance of counsel, and due process. According to defendant, evidence from that file was relevant to undermine Jane’s credibility because it tended to show that she had a history of lying about her caregivers, including defendant.
Defendant further contends the trial court committed prejudicial error in prohibiting him from using documents from the family court file to impeach Jane. According to defendant, documents from this file were essential to his challenge to Jane’s credibility because they demonstrated she made false accusations in the past, including accusations that defendant had locked her in a room, Hazel frequently spanked her with a belt, and Hazel prevented her from playing with other children. We find no evidentiary error.
A. Background
Prior to trial, defendant filed a written motion requesting the release of confidential medical and educational records relating to Jane. Defense counsel sought the records because he believed they might contain information relevant to Jane’s credibility. Counsel requested that the trial court conduct an in camera review of the records to determine whether they contained relevant and material information. In addition, as part of his motions in limine, defendant requested the court take judicial notice of the family court file related to the divorce proceedings between Hazel and Jane’s biological father. According to defense counsel, the file contained a declaration from Hazel responding to Jane’s accusations that she disciplined Jane to the point of abuse.
At the hearing on the motions, the trial court released medical records to defense counsel for review with the understanding that the records could only be used in this matter. The court took judicial notice of the family court file but deferred ruling on the admissibility of the documents in the file. In doing so, the court noted that it did not understand why allegations in a divorce proceeding that were made prior to the current allegations of sexual abuse were relevant. However, the court indicated that counsel could move to introduce documents from the file during trial.
Later that same day, defense counsel advised the trial court that the released medical records disclosed potential impeachment evidence regarding Jane that he was previously unaware of, including psychological treatment Jane received around 2010, and a CPS report prepared around 2010. Defense counsel stated that he believed the 2010 CPS report could contain exculpatory information. Defense counsel also stated that the family court file mentioned a CPS report that was prepared sometime between 2003 and 2005, and that he had been unable to obtain this report despite going through “great lengths” to do so. The prosecutor agreed to facilitate the process of obtaining these records.
The following day, the prosecutor informed the court that there were two CPS files. One of the files involved a sexual abuse report in 2013 relating to this case. The other file involved a report from June or July 2005 relating to alleged emotional and/or physical abuse of Jane. The prosecutor and defense counsel believed the 2005 report contained allegations that Hazel was disciplining Jane with a belt, as mentioned in the family court file. The parties agreed that the prosecutor would obtain both CPS files for an in camera review by the trial court. The prosecutor confirmed that Jane had received psychological counseling in 2010, and indicated she was working on obtaining records for the court to review and release, if appropriate.
Four days later, the trial court advised the parties that it had reviewed various CPS records involving Jane and her family. The trial court stated, in relevant part, as follows: “One contact was back in June and July of 2005. There [were] no sustained findings. The court does not find any basis to turn those records over. They don’t seem relevant to this case at all. The second contact was in August 2013. That contact was directly about this incident. . . . [¶] . . . And because that report relates directly to this incident, I am going to disclose that to both parties.” Defense counsel noted for the record that he was requesting the court to release the 2005 CPS file. The court acknowledged counsel’s request but stated it had conducted an in camera review and determined the file related “to events that occurred a couple of years before the charges in this case, and there is nothing that would appear to be at all [relevant] to this case.”
Thereafter, the prosecutor filed a motion in limine seeking exclusion of any reference to the contents of the family court file. The prosecutor argued that the evidence should be excluded under section 352 because the information in the file was irrelevant, remote in time, and would likely cause a trial within a trial on a wholly collateral matter. The prosecutor noted that the file contained a declaration from Jane’s biological father stating that he called CPS in 2005 because Jane (then four years old) did not want to go to Hazel’s house and was very upset. The declaration asserted, among other things, that Jane claimed Hazel spanked her all the time and hit her with a belt, Hazel did not allow her to play with other children, and defendant had locked her in a room. In addition, the prosecutor noted that the file contained a responsive declaration from Hazel admitting she spanked Jane with a belt on prior occasions when Jane misbehaved but that CPS found the allegations of physical abuse to be unfounded. Hazel’s declaration also denied that defendant had locked Jane in a room.
At the hearing on the motion, the trial court initially noted that it was undisputed that Hazel had used a belt to discipline Jane. The court then asked defense counsel to explain the relevance of the manner in which Hazel disciplined Jane years before the current allegations against defendant. According to defense counsel, the “conflict” between Jane and Hazel as to whether the belt use was excessive was relevant to Jane’s credibility and the reason why Hazel did not believe Jane’s allegations of sexual abuse. Counsel further argued that the contents of the family court file demonstrated that Jane made up the allegations of abuse against defendant to avoid living with Hazel because the allegations were made long after defendant moved out of the family home. In response, the prosecutor noted that there was no dispute between Jane and Hazel about whether Hazel’s use of a belt was excessive. The prosecutor explained that Hazel did not deny hitting Jane with a belt. Rather, she denied other allegations made in the biological father’s declaration, including the allegation defendant locked Jane in a bedroom. The prosecutor noted that Jane was four years old at the time the allegations were made, and that the allegations arose out of “incredibly suggestive” leading questions by Jane’s aunt. The prosecutor argued that the allegations, which were made during a custody dispute between Jane’s parents, had no relevance to the allegations in this case. In making this argument, the prosecutor noted that there had been no showing that Jane had said anything that was not true, and Hazel never claimed she did not believe Jane’s allegations against defendant because Jane exaggerated about being disciplined with a belt. After indicating that the allegations in the biological father’s declaration might be relevant on cross-examination of Hazel as to why she did not report Jane’s claims of sexual abuse, the trial court declined to issue a final ruling until it heard the trial testimony. The court noted that it would give defense counsel latitude to challenge Hazel’s stated reason for why she did not report the abuse but stated: “Now, whether we go back to something that occurred two years earlier, . . . it may be under [section] 352 that while it may be relevant and probative, that given that it’s involved in this custody battle, given the age of the child, given she may have been coached to say things; but maybe under [section] 352, I might disallow it.”
When Jane testified, she denied making up any lies about defendant in the hopes her parents would get back together. On cross-examination, Jane admitted that she had lied to her mother about “normal stuff a kid would lie about” but could not recall any specific things she lied about. Defense counsel did not ask Jane about the prior allegations against Hazel and defendant or request to reference any of the declarations in the family court file.
Following Jane’s testimony, the trial court revisited the admissibility of the contents of the family court file, remarking: “It does seem to me if we get into a morass of competing declarations in a Family Law file that occurred a couple of years, two or three years before this incident, it’s really not explicating anything, it’s not really getting additional information . . . .” When the court asked defense counsel to explain what he was specifically seeking to introduce from the file, counsel indicated that he wanted to ask Hazel whether Jane had ever said something negative about defendant that was not true; specifically, counsel wanted to ask Hazel about the truth of Jane’s allegation that defendant locked her in a room. In response to the court’s inquiry as to why this line of questioning would not elicit relevant information regarding Jane’s feelings about defendant, the prosecutor argued that Jane’s prior allegation against defendant was irrelevant because Jane did not make the allegation to Hazel, and Jane was not asked during her testimony whether she actually made the allegation. After again remarking on the probability that the parties would be “relitigating disputed issues in the Family Law file” if the disputed evidence were to come in, the trial court excluded any reference to the declarations contained therein but indicated that it would address the admissibility of the declarations during Hazel’s testimony, if necessary.
B. Analysis
On appeal, defendant initially asks us to review the 2005 CPS records in camera to determine whether the trial court erred in denying him access to the records. This is the appropriate procedure under these circumstances.
Good cause to compel production of confidential records in a criminal action does not entitle a defendant to receive them. Rather, the custodian of the records is to forward the records to the trial court; the trial court will review them in camera, balance the defendant’s right of confrontation against the subject of the record’s right of privacy, and determine which records, if any, are essential to the defendant’s right of confrontation. (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295-1296.) If the trial court determines after an in camera hearing that no records may be disclosed, a defendant is not entitled to view the documents to show the court abused its discretion. Instead, the reviewing court looks at the same evidence to determine whether the trial court abused its discretion. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-60 [94 L.Ed.2d 40, 60-61] [the defendant’s right to fair trial when seeking disclosure of confidential records is adequately protected by an in camera review of the records].)
We have reviewed the sealed 2005 CPS records and conclude the trial court did not abuse its discretion in denying defendant access to them. There is no impeachment evidence related to Jane’s credibility within the documents at issue. The documents are simply not relevant.
We further conclude the court did not abuse its discretion in prohibiting defendant from using documents from the family court file to impeach Jane. Evidence of a victim making prior false accusations may be relevant on the issue of the victim’s credibility if there is “conclusive evidence” of falsity. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457-1458; see also People v. Miranda (2011) 199 Cal.App.4th 1403, 1424-1425 (Miranda).) The trial court has discretion under section 352 to exclude evidence of a victim’s prior accusations. (Miranda, at p. 1424.) The probative value of such evidence for purposes of impeachment depends upon proof the prior accusations were false (People v. Bittaker (1989) 48 Cal.3d 1046, 1097, overruled on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920), and the trial court retains discretion under section 352 to exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Admitting or excluding evidence under section 352 is a matter of discretion and we must uphold the exercise of that discretion unless the trial court misunderstood the law or misapplied it to the facts of a particular case, in manner that resulted in a miscarriage of justice. (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.)
Here, there was no misapplication of the law as defendant contends. The trial court understood the balancing test and made no error in its application. There was simply no conclusive evidence showing that Jane made prior false accusations against defendant or Hazel. Nothing in the family court file shows that the prior accusation that defendant locked Jane in a room was false, and the mere fact that a social worker concluded that the accusation of physical abuse against Hazel was unfounded is not clear evidence of falsity. (See Miranda, supra, 199 Cal.App.4th at p. 1425 [“The conclusion that the claim was unfounded was an opinion of a social worker, and the admissibility of that conclusion is doubtful”].) Further, Heather did admit to hitting Jane with a belt, as Jane had claimed; the dispute was over frequency. Evidence from the family court file would not have established that Jane made prior false accusations against defendant or Hazel; further evidence would have been needed. As the trial court suggested when expressing its reluctance to admit documents from the family law file into evidence at defendant’s trial, this would have resulted in a mini-trial on collateral matters unrelated to defendant’s guilt or innocence, which had the potential to confuse the jury and consume an undue amount of time.
The differences between the prior accusations and Jane’s current accusations also weigh in favor of exclusion. (See Miranda, supra, 199 Cal.App.4th at p. 1426 [“According to defense counsel, the current and prior complaints had a connection to the divorce of [the victim]’s parents and issues of child custody, matters far afield from the charges in this case”].) In addition, the relative remoteness in time of the prior accusations supports exclusion. (People v. Harris (1998) 60 Cal.App.4th 727, 739 [“ ‘[r]emoteness’ or ‘staleness’ of prior conduct is an appropriate factor to consider in a section 352 analysis”].) Here, Jane was 14 years old when she testified. The prior accusations against Hazel and defendant were made when Jane was four years old during a custody dispute between her parents, several years before she initially disclosed defendant’s sexual abuse to Hazel, and some eight or so years before she reported the abuse to the police when she was 12 years old.
On this record, we cannot conclude the trial court abused its discretion in precluding evidence under section 352. Because the trial court did not abuse its discretion, defendant’s constitutional claims also fail. (See Miranda, supra, 199 Cal.App.4th at pp. 1422, 1426 [rejecting claim that exclusion of evidence of prior false claim violated the defendant’s constitutional right to cross-examine witness], citing People v. Panah (2005) 35 Cal.4th 395, 484, fn. 32; People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [“the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense’ ”].)
III
Refusal to Unseal Records
We reject defendant’s contention that we violated his federal constitutional due process right to appeal the judgment by refusing to unseal the 2005 CPS records. In this case, consistent with customary and approved procedure, the confidential CPS records made part of the appellate record have been sealed and appellate counsel for defendant has not been permitted to view them. (See People v. Hughes (2002) 27 Cal.4th 287, 330.)
IV
Cumulative Error
Defendant argues the cumulative effect of the trial court’s evidentiary errors requires reversal. Because we have rejected defendant’s claims of evidentiary error, there is nothing to cumulate. (See In re Reno (2012) 55 Cal.4th 428, 483.)
DISPOSITION
The judgment is affirmed.




/s/
Duarte, J.



We concur:



/s/
Hull, Acting P. J.




/s/
Robie, J.