P. v. Whicker

Filed 6/26/07 P. v. Whicker CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Richard Scott Whicker was convicted of sexually molesting his two prepubescent sons. On appeal he contends that the trial court committed numerous errors in the admission and exclusion of evidence. We agree that the court erred in at least four respects, by admitting extremely flimsy evidence of other inappropriate behavior by defendant toward children; by admitting irrelevant or marginally relevant but highly prejudicial evidence concerning his sexual predilections toward adults; by admitting incriminating extrajudicial statements by his sons without following the clearly prescribed statutory procedure for assessing their reliability; and by misapplying the rule of evidence permitting the admission of an entire conversation, or its relevant portions, when part has been admitted. The sheer number of unsustainable evidentiary rulings makes it impossible for us to conclude that defendant received a fair trial, or that the verdict was not the product of these errors. Accordingly, we will reverse the judgment.

Background

In 1991 defendant met his sons mother, whom we shall call Rebecca, via a dial-up bulletin board system.[1] Their first son, whom we shall call Rusty, was born in the winter of 1995 with cystic fibrosis. Their second son, whom we shall call Alfie, was born in the spring of 1998.

In late 1999, when Rusty was four years old, he told Rebecca that he and a neighbor boy had been playing a game called woogies and butts and woogies and mouths. Woogie was the familys term for a penis. Rusty, who had a speech impediment, was originally understood to say that he participated in this activity with Justin, a boy then aged slightly over 10 years. The parents reported the matter to police, and on October 16, 1999, San Jose Police Officer DArrigo went to the familys Foothills apartment, took a statement from Rebecca, and spoke to Rusty. DArrigo understood Rusty to say that Justin had touched his woogie and that Justin puts his woogie in my butt.

The matter was assigned to San Jose Police Officer Buell, who on October 28, 1999, interviewed Rusty at the police departments child interview center. In the interview, Rusty identified the neighbor boy in question as not Justin, but Justins younger brother Christian, then aged about four and a half. Buell reported this to the parents, and said that because Christian and Rusty were about the same age, he viewed it as a case of child sexual play and was not inclined to take action. They asked him to drop the case, which he did.[2]

Several months later, defendant told Rebecca he had found Rusty and Christian together, with one of them sucking on the others penis. The boys were kept apart for a few days, and defendant told Rebecca he had spoken to Christians parents. A month or two later Christians family moved away.

Rebecca testified that in late 2000 or the first half of 2001, while she and the boys were visiting her mother, Rusty remarked, in the presence of herself and her mother, that his dad had touched his woogie. Rebecca questioned him but was unable to elicit any details. She did not discuss it with defendant because she was afraid of him . . . retaliating with Rusty, whom she felt he had begun to punish inappropriately. Hoping to find out what had actually happened, she got a referral to a licensed social worker, whom she took Rusty to see. She did not take him again because she felt the social worker had asked an improperly suggestive question by showing Rusty a doll and saying, Where did daddy touch you? In November 2000, Rebecca took Rusty to see psychiatrist Ray Cendana, because Rusty was having some behavioral issues. Rusty remained under Dr. Cendanas care until April 2002.

Beginning in 2000, defendant and Rebecca talked about separation and divorce. As of the fall of 2001, they were on cordial terms, but still had problems. Rebecca testified over a relevancy objection that she felt the biggest problem was defendants dishonesty, i.e., she couldnt depend on him. She also testified that during the last couple of years there had been almost no sexual relationship. When they had had such a relationship, she testified, defendant had liked to have his nipples pinched during intercourse. During the first couple of years of their marriage, he might have shaved his pubic hairs once or twice. He was concerned about his penis being too small. He never expressed a belief to her that he could make his penis larger by masturbating.

Rebecca testified that in October 2001, during another visit to her mothers house, Rusty indicated his protruding navel and said, When my woogie sticks out like that, daddy sucks on it or sometimes daddy sucks on it. She asked Rusty if he had been told not to tell. And he said no. Unsure what to do, she took no immediate action. A few days later, however, when Rusty was hospitalized with pneumonia, she told Dr. Cendana what he had said. She knew the doctor was a mandated reporter, and expected the police to get involved.

Dr. Cendana contacted child protective services. On October 17, 2001, then-detective Phan of the San Jose Police Department opened an investigation into Rustys allegations of sexual abuse by defendant. He arranged to meet with Rebecca and Rusty on October 24, 2001. Before the interview Rebecca told Rusty that she was taking him there to talk about the stuff that happened with daddy. During the interview, however, Rusty did not answer any questions concerning the allegations. Nor did he answer relevant questions after Phan went and got Rebecca and Alfie and brought them into the room. A videotape of the interview was played for the jury.

After Phan ended the interview, he asked Rebecca if she would be willing to place a pretext call to defendant. She agreed to do so and called defendant at work, with Detective Phan listening in and feeding her questions. An edited recording of the call was played at trial. In the portion heard by the jury, defendant alluded to Rustys having become suddenly sexually active at age four, then remarked, It doesnt help that you know, that he caught me you know, that he caught me maybe twice, masturbating, and then he wanted to join me, and its like, well, no way. Defendant told her that while he was masturbating in his bed, Rusty had run into the house and interrupted him before he could cover up. Rusty, he said, had asked him what he was doing, to which he had replied that he was making my woogie bigger, or something like that. Then, he said, Rusty had asked if he could, you know, lie, you know, lie down with me, be in bed with me, or do it too, to which he had definitely told him no . . . . Rebecca testified that this was the first she had heard of such an occurrence. When she asked defendant during the call if he would ever do this kind of thing, defendant replied that he would not, even if he [Rusty] was like a thirty year old . . . . Why would I want him to like grow up thinking of, thinking that his dad is a homo? In response to further questions he said, Im not interested in guys. Ive never been interested in guys.

Shortly after Rebeccas report to Dr. Cendana, Detective Phan told her that the children would be removed from her custody unless she or defendant moved out of the house. She called defendant at work and told him he needed to move out because allegations of sexual abuse had been made against him. Defendant then moved out. About a week later, Rusty asked Rebecca if daddy was dead. She told him that, no, daddy had to move out because of what happened with you and daddy. She may have said that he had to move out to keep them safe. She had made such statements to them repeatedly, most recently within a few weeks of trial.

For some months Rebecca disregarded the police order not to allow contact between the boys and defendant. The boys saw defendant at holidays, he sometimes watched over them for her, and they sometimes went over to his parents house. They stayed overnight with him several times. Eventually a social worker told Rebecca she had to stop permitting such contacts.

In early 2002 the boys were brought under the jurisdiction of the juvenile court, which set up weekly supervised visits with defendant. Rebecca testified that during this period Rusty told her more details concerning sexual contact between defendant and him. Also, around April or May 2002, after a bath, Alfie told her something about daddy's penis that stuffpee would come out and daddy had to go take a shower. Alfie said something about his own penis, too.

Alfies revelation came about eight months after defendant moved out of the house. Prior to this revelation, Rusty had made multiple sexual overtures to Alfie. He exposed himself and told Alfie, who was breast-feeding, that his, Rustys, penis was a boob and he should suck on it. Rebecca had also seen them touching each others penises with their hands during or immediately after a bath. When she initially asked Rusty about sexual contacts with Alfie, he denied it. Only after visiting a counselor did he tell her he had had sexual contact with Alfie. Rusty never said that he had learned this behavior from his father. Nor did Alfie say that he had learned any of that behavior from his father. However Rusty said that first there had been the stuff with daddy, then after he moved out I did stuff with Alfie.

Rebecca reported Alfies allegations, as well as the further information from Rusty, to a social worker in the juvenile court matter. Apparently as a result of this information, all visitation between defendant and the boys ceased in May 2002.

Around that time defendant met his fiance-to-be, Angie T., in an internet chat room. She then lived in Maine, and in June 2002, they decided he should come there for a face-to-face meeting. Defendant eventually moved into a Bangor apartment with Angie, though he returned to California three times for juvenile court matters. Defendant did not immediately tell Rebecca how to contact him, but within a month or two he included her in a mass e-mail with his new contact information. Based on this evidence, the prosecution secured an instruction on flight as circumstantial evidence of guilt, arguing to the jury that defendant moved to Maine in order to impede police investigation into these allegations.[3]

Meanwhile, on July 12, 2002, Rusty and Alfie were interviewed by Detective Asato. Rebecca was not present in the interview room. Before the interview, however, she told the boys they were being taken to talk about the stuff that they did with daddy. Video recordings of the interviews were played for the jury. In Rustys case, Detective Asato was still asking preliminary questions when Rusty volunteered, You know what? [] . . . . [] My dad hehe sucked on my wiener. He went on to say that defendant had also touched his wiener with his hands, and that this had happened [a] lot. On the first occasion, he said, he had been sleeping in his bed when his dad awakened him and just started doing it. It would happen when his mom wasnt there. He thought he was [m]aybe five when it started. Later, when asked what his dad used his penis for, Rusty said. [F]or me to suck on. He went on to say, however, I never suck on his because it was too much fur[] . . . . []and it also tasted yucky. He said his dad had tried to make him do that about a million times. Later he said his dad had in fact made me suck on it for about a minute. Still later he said this type of stuff happened more than five times.

When these things would happen, Rusty said, it was in mommys room. It was always at nighttime when his mom wasnt there. His little brother was there. His dad was kissing him while he had his hands on his body, and Rusty was sucking on his dads nipples, when suddenly something all white came out of his daddy. It went on his daddy so that he needed to take a shower. His dad never touched himself.

In his separate interview Alfie told Asato he was four. Asked if he knew why he was there, he replied, to tell you stuff, i.e., that daddy is playing with my woogie. Asked how his daddy was playing with it, he replied, Sucking it. Asked by Asato if anyone told him to tell her that, he said, Mommie did. He said he had been in his parents bedroom when his dad sucked on his woogie. Nobody else was in the room. His mom was in the living room. His dad sucked on his woogie five times. His dad never said anything to him while doing it: You cant talk when you are sucking on something.[4] He said he told his mom about it right after it happened.

In January 2003, Detective Phan contacted Bangor authorities and asked them to question defendant. They did so on February 5 and 28, 2003. An edited audio recording of the second interview was played for the jury. In it, defendant steadfastly denied any memory of sexual contact with Rusty or Alfie. He said the boys might have seen him naked upon coming into the bathroom after he took a shower. He also described an incident like two and a half years ago, when Rusty walked in on him while he was masturbating in his bedroom. Rusty burst in asking him to fetch Rustys bike, but then said, [W]hat are you doing? whereupon defendant told him he was making my penis bigger, or something to that effect. Rusty asked if he could do it too, to which defendant said no, and changed the subject immediately.

When detectives asked what had triggered defendants impulse to masturbate, he said that he might have been trying to enlarge his penis, which he considered small. The detectives asked where he had gotten the idea that he could enlarge his penis by masturbating; he replied that he had gotten this idea from the internet. When asked why Alfie would report seeing white stuff bubbling out of his penis, defendant repeated that Alfie had never seen his penis, and then added, Whenever I do masturbate Ive never like gotten myself to a point of ejaculation . . . . Beaulieu asked what would be the point of masturbating in that case, and defendant replied, to try and loosen things up down there. Trying like get it longer. After the detectives expressed disbelief that he had never masturbated to ejaculation, defendant said that he had almost never done so, and though he might have done it in college, he had no memory of it. He insisted that he had not done so since I was married to [Rebecca], or during [t]he entire time since the boys were born . . . . When he masturbated, he said, it would always go soft because he would lose interest or just cant keep[]cant keep it up.

Detective Cotton denounced these statements as a lie and asserted that defendant was deliberately trying to repress your memory. Defendant then said that he remembered masturbating after the birth of the boys because hell it was like[]went three whole years without having sex with my wife. And I remember just having a desire, having a need. But, he said, he would look through mens magazines and swimsuit magazines and would not get an erection. In his then-new relationship with Angie, however, he had sex almost every day and was able to get an erection just fine . . . . Asked what would help him to get an erection before, he said, Playing with my nipples or whatever. [] . . . . [] Pinching my nipples and stuff like that.

Pressed by the detectives to acknowledge some misconduct toward the boys, defendant said, Im not exactly sure if I did make a mistake because everyone is pointing at me and saying you must have done something Rick. Its like OK fine I must have done something. I really wish I knew what it was. And if there is some kind of repressed emotion, if its something spit [sic] personality, if its some psychosomatic thing, then fine you know. You know lock me up, throw away the key. [] . . . . []  . . . . I, in my own and going through everything thats in my memory, I dont remember doing anything. Detective Beaulieu suggested that defendant might indeed be afflicted with a split personality thing or some psychometric thing that was interfering with his memory. Pressed to acknowledge this as a possibility, defendant said, Its possible that I was taking antidepressants and they werent working at all and who know what I did. The detectives continued to press defendant to acknowledge that it was possible that something occurred that makes this child say this . . . . Eventually defendant said, I think its possible The detectives then suggested that, as a result of defendants taking antidepressents, something could have happened that was out of your control. Defendant acceded to the possibility. Then, however, he asked why he would have no memory of the events, adding, Why would I be encouraging my son to go a shrink? Speaking of Rusty, he said, for a whole year he didnt say anything to the psychiatrist and then suddenly in October here he suddenly makes this outrageous remark to my wife. Later he said, For the past 18 months Ive been thinking that my ex-wife has been planting these ides in my boys[] head. And you know everyone is saying no thats no[t] possible. After the detectives continued to suggest the possibility of repressed memory, defendant said Its possible. [] . . . . [] Anythings possible. The detectives then persuaded defendant to write a letter of apology to the boys, which they said they could forward to the social worker in the boys dependency case to get things rolling towards showing that you feel and want to reunify with the kids. Defendant repeatedly expressed his love for his children and his desire to see them again, which he had not done since May. Detectives repeatedly suggested that an apology letter might advance this objective.

Defendant wrote such a letter, in which he stated, Some people that Ive been talking to and that have been helping me so that I can see you guys again, told me that they want to keep helping. . . . These people say that I might be forgetting what happened when I was living with you and Mommy. That sometimes I might have done some bad things, but now my brain wont let me remember it. If I did do bad stuff to you or [Alfie], then Im really sorry. Im so incredibly sorry if I hurt you and made it so Im not living with you guys right now. I miss and love both of you so much! I cant remember doing any bad stuff, but I guess its possible that my brain doesnt remember it, or maybe I really didnt do these bad things. I just dont know. But I think these people that Ive been talking to are going to help us, so I can be some one safe to be around and be a better Daddy. . . .

After Detective Beaulieu reported the results of the interview to California authorities, a warrant issued for defendants arrest. He was arrested in Maine on March 20, 2003. On June 17, 2004, an information was filed charging defendant with four felonies: (1) aggravated sexual assault consisting of oral copulation by coercion upon Alfie when the latter was three and four years old (Pen. Code, 269, 288a); (2) lewd and lascivious act by coercion upon Alfie during that same time (Pen. Code, 288, subd. (b)(1)); (3) aggravated sexual assault consisting of oral copulation by coercion upon Rusty when he was three, four, and five years old; and (4) lewd and lascivious act by coercion upon Rusty.[5] It was further alleged that defendant had committed the charged offenses against more than one victim, so as to trigger the enhanced punishments provided by Penal Code sections 667.61, subdivisions (b) and (e).

After a jury trial before Judge Joyce Allegro, defendant was convicted on all counts, and the multiple victim enhancement was sustained. The court sentenced defendant, who was then 35 years old, to four consecutive terms of 15 years to life, making him ineligible for parole until he served 60 years.

I. Jailhouse Phone Calls

A. Background

Defendant contends the trial court erred by permitting the jury to listen to two phone conversations between defendant and his then-fiance Angie, which were recorded while he was in jail. The statements to which he particularly objects may be placed in four categories: (1) Statements tending to show that he was sexually attracted to adult males; (2) statements concerning the type of male to which he was attracted; (3) statements concerning Angies involvement in a mnage trois with a man and a woman; and (4) statements concerning defendants masturbation into a tube sock while in jail. We have concluded that evidence in the first and last categories was potentially relevant and, properly circumscribed to limit its prejudicial potential, could in the trial courts discretion be admitted to establish the falsity of earlier statements and thus to support an inference of consciousness of guilt. Evidence in the second and third categories, however, possessed little if any probative value, and its admission was a highly prejudicial abuse of discretion.

Defendant told Bangor police detectives that he had never masturbated, or had no memory of masturbating, to the point of ejaculation. He also told them, as he told his estranged wife Rebecca in the pretext phone call, that he had no sexual interest in men. In the first of the two jailhouse phone conversations heard by the jury, defendant discussed with his fiance Angie a sexual encounter in which she proposed to participate with a couple, male and female. Defendant told her to memorize details concerning the male participant, specifically whether he was circumcised, how much body hair he has, and the length of his penis. She asked him to explain why it matters. He replied in pertinent part, [I]ts like so uh, extremely sensitive, uh, you know, the tip on an uncircumcised person is so extremely sensitive that, you know, I mean, you can actually hurt them by doing certain things. [] . . . . [] So if you, you know, hes circumcised then, you, then I know that, you know, I can do certain things like, you know, nibble and, and you know, other things. And you know, if hes uncircumcised, then I cant. [] . . . . [] Because, you know, then hed be in agony.

The second call took place after the encounter. Angie told defendant she had taken the notes you wanted me to take, that the man had almost no body hair, was circumcised, was not huge, and had extremely sensitive nipples. Defendants only responses to these statements were signals of acknowledgment, e.g., Mm hmm, Okay, and Huh. He asked her at one point whether she ever ha[d] [her] hand on . . . him, and requested details when she said she had been mostly the upper-body person.

Later in the conversation defendant said that he didnt know whether to be envious of Angies three times when he had only had one time today. This produced the following exchange: [ANGIE]: Onewhoa, whoa, whoa, what, where, what now? []  [DEFENDANT:] Well, I, I had one time today. [] [ANGIE]: Oh. Had some time to yourself, did you? [] [DEFENDANT:] Yeah. [] [ANGIE]: Oh. []  [DEFENDANT:] And you know, me, me and, me and my tube sock uh, got along quite nicely. [] [ANGIE]: (Laughs.) Thats funny. [] [DEFENDANT:] Well, its, you know, its gotta go somewhere, and I figured, you know, tube sock rather than the sheets, so. [] [ANGIE]: Hmm. Yeah, the tube socks a lot easier to wash out. []  [DEFENDANT:] Yes. And its very absorbent, too. I love you. [] [ANGIE]: I love you.

B. Contentions

Defendant raises several interrelated claims of error in the admission of the foregoing conversation as well as his statements to Maine detectives that he never masturbated to the point of ejaculation: (1) The phone calls were merely introduced to paint him as a bad character.  (2) It was likely that jurors would simply be offended by the evidence and punish him for his deviance rather than for his guilt on the charges. (3) [I]t was preposterous to infer that his possible predisposition to engage in oral copulation with an adult male meant that he would engage in it with a male child; any such inference would require a foundation in expert testimony, which was neither offered nor admitted. (4) The details of Angies sexual encounter with the other couple, as reported by her in the second call, were totally gratuitous and prejudicial, completely irrelevant to the charges, and served only to paint [defendant] as a sexual deviant and a person of bad morals and bad character. (5) The evidence also diminished Angies credibility as a witness crucial to the defense.

Respondent lumps defendants pretrial statements together and argues that they were all admissible to show consciousness of guilt. Respondent also notes, more narrowly (and plausibly) that this rationale applies to defendants statements relating to sexual interest in males generally and masturbating to ejaculation. Respondent also asserts that defendants statement that he engaged in the identical sex act complained of by the victims is clearly relevant and of high probative value that outweighed any prejudicial effect. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1023 [defendants pretrial statement was admissible not for its truth but to support the credibility of the witness].)

C. Prior False Statements to Show Consciousness of Guilt

One of the rationales for introducing the jail conversations was that they tended to show the falsity of three prior statements by defendant. First, in the pretext call with Rebecca, he told her he was not interested in guys. Ive never been interested in guys. A few seconds later, he emphasized the point: Im not interested in old guys. Im not interested in middle age guys. Im not interested in guys. Second, he similarly insisted to Maine detectives that he had no sexual interest in males, and that when he watched pornography just the image of a penis you know I lose interest and get turned off by it. Third, he told the detectives that he had never masturbated to the point of ejaculation or that if he had it was in college and he could not remember it. During the jail phone call, defendant expressed interest in adult male sexual partners and indicated that he had masturbated to the point of ejaculating into a sock.

A false or misleading statement by a defendant relating to a charged offense may show [he] was aware of [his] guilt and thus may be viewed by the jury as circumstantial evidence of guilt.[6] (CALCRIM No. 362; see People v. Mendoza (1987) 192 Cal.App.3d 667, 672.) Where the prosecution offers an assertedly false statement for this purpose, the untruth of the statement may be established by any otherwise proper evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498.) It follows that a relevance objection is properly overruled when the challenged evidence tends to establish that the defendant lied about matters bearing on the accusations against him under circumstances supporting an inference of guilty knowledge.[7]

Recognition of the potential relevance of this evidence, however, is only the starting point. The next question is whether it should have been excluded, or limited, under Evidence Code section 352 ( 352). When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers substantially outweigh probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Here the trial court was required, in the first instance, to determine the extent to which defendants earlier statements, if found to be false, reasonably tended to establish consciousness of guilt. Such an inference becomes weaker as the subject matter becomes more remote from the accusations and as the evidence points to alternative motives for deception. Thus defendants denials to Rebecca that he had any sexual interest in men supported only a weak inference, if any, of consciousness of guilt. Defendant was not lying to a police officer or investigator, and although Rebecca was acting as a police agent, she was doing so surreptitiously; hence the term pretext [more accurately, pretense] call. So far as matters appeared to defendant, he was lying only to his estranged wife about certain sexual predilections that were incompatible with conventional matrimony, not to mention monogamy, and which he had obviously always concealed from her. Surely this concealment was not originally motivated by an intention to conceal the future molestation of their as-yet unborn children. It obviously arose from other motives. Apart from a presupposition of guilt, there was no rational basis to suppose that those original motives (now reinforced by the desire to conceal his own deception) had been displaced by consciousness of guilt. There was simply no basis for a rational inference that he was speaking from that motive. His denials to Rebecca therefore lacked substantial probative value.

At the same time those denials, if shown to be false, possessed unique and significant potential for prejudice because they painted defendant as a man who lied to his wife about matters intimately affecting their marriage. This may have been despicable of him, but that is no reason to admit the evidence; quite the reverse. The inference of guilty conscience from false statements is not intended as some kind of punishment for lying. It is intended to aid the search for truth. It can only justify the admission of evidence to the extent that the lying appears in fact to have been motivated by consciousness of guilt. On this record, evidence that defendant lied to his wife about his sexual interest in men was nothing but character assassination. It was an abuse of discretion to expose the jury to that evidence.

This analysis does not extend to defendants assertedly false statements to the Maine detectives that he had no interest in men and that he had never masturbated (or could not recall masturbating) to the point of ejaculation. Defendant issued these denials to persons he knew were investigating the charges against him. Nor does the evidence strongly suggest alternative motives, as it does with his misstatements to his wife. A factfinder could reasonably infer that these statements to the detectives, if false, were motivated by a desire to deflect inquiries that might tend to establish his guilt. Nor does evidence of these misstatements carry the same potential for prejudice that accompanied the evidence of his lies to Rebecca.

In conducting the section 352 calculus, however, the court must consider not only the probative value and prejudicial potential of the assertedly false statement but also of the evidence offered to establish its falsity. Here it would have been proper to prove that the statements to the detectives were false, but only by evidence not so inflammatory as to impede the search for truth, and critically, not by evidence more inflammatory than was necessary. The jailhouse phone conversations between defendant and Angie had an obvious potential for prejudice in that they disclosed sexual practices and preferences by both conversants going well beyond defendants apparent interest in adult male sexual partners and well beyond the boundaries of what many people would consider aberrant, immoral, perverse, or even execrable. None of this information was necessary to show that defendant made false statements to the Maine detectives. All that was necessary for that purpose was to establish that, in speaking to Angie, defendant had (1) expressed an interest in, and seemingly firsthand knowledge of, engaging in sex with adult males; and (2) reported, on at least one occasion, masturbating to the point of ejaculation. There is no evidence that these facts could not be elicited by asking Angie about them. If she were asked and gave unsatisfactory answers, the way might have been open to making some use of the jail conversation, if only to refresh her memory. Under no circumstances, however, could the need to show the falsity of defendants statements to detectives justify the wholesale introduction of Angies mnage trois and the other salacious details of their conversations.

We conclude that it was not an abuse of discretion to admit evidence that defendant made false statements to the Bangor detectives about his sexual interest in men and his masturbation practices. However, it was an abuse of discretion to admit evidence that defendant lied to his wife about his sexual interest in men. Moreover, the wholesale introduction of the jail phone calls cannot be justified on the basis that it was necessary to establish the falsity of defendants statements to detectives.

D. Predisposition

The record suggests a broader theory for admitting the jail calls, i.e., that they supported an inference that defendant was predisposed to commit acts of the type reported by Rusty and Alfie. The prosecutor initially argued that the calls established defendants interest in a particular type of adult maleone with minimal body hair, diminutive genitalia, and a circumcised penis, and that this tended to corroborate Rustys and Alfies accusations, since both of them, being prepubescent, had hairless bodies and small penises, and Rebecca testified that the boys were circumcised. The prosecutor argued that the evidence was relevant insofar as it showed defendants preference toward performing oral sex on circumcised males. Later, in response to defense objections that the evidence was more prejudicial than probative, the prosecutor said that without this evidence, all the jury would know was that defendant had been married to the boys mother and was now in a heterosexual relationship. Thats naturally going to raise a doubt for some jurors, was this heterosexual man having oral sex with his boys. So I think the fact that he has sexual interest in males has relevance on that point.[8]

In ruling the calls admissible, the trial court appeared to adopt an even broader theory. At first the court seemed to echo the prosecution theory, stating that the jailhouse calls tended to corroborate the boys testimony because the boys too dont have large penises and dont have body hair since theyre very young. Defense counsel objected under section 352, saying, you can be a heterosexual woman and be interested in whether a man has a lot of body hair or not. It doesnt mean youre interested in a child. You can be interested in the size of a mans penis. The court countered, Were not talking about a heterosexual woman having this conversation. Later defense counsel said that she had talked to experts who indicated that bisexual proclivities with respect to adult partners had no tendency to show that an individual was more likely to be disposed to pedophilia. Counsel also argued that the evidence lacked probative value in the absence of expert testimony. Rejecting all of these points, the court ultimately said, [T]he fact that the defendant was discussing having sex of some sort with a male under the circumstances of this case is relevant information, its corroborative information, and its more probative than prejudicial.

We reject both the courts broad theory and the prosecutions narrower one. In the absence of expert testimony, defendants interest in sex with adult menregardless of their typecould not support a rational inference that defendant committed the acts described by Rusty and Alfie. So far as this record shows, a general attraction to adult males is no more indicative of a pedophilic tendencies than is a general attraction to adult females. The courts apparent view to the contrary was rejected in this state a half-century ago. (People v. Giani (1956) 145 Cal.App.2d 539, 541 [prejudicial error to ask defendant charged with oral copulation of a boy whether he was a homosexual].) If that precedent is to be overturned, it must be on the basis of scientific evidence, not lay supposition. Such professional literature as we have located suggests that pedophiles are significantly less likely to differentiate between genders in selecting their victims than are non-pedophile adults in selecting partners. (Freund, et al., Erotic Gender Differentiation in Pedophilia (1991) 20 Archives of Sexual Behavior 555, 563-564.) Indeed the prosecution here introduced evidence of supposedly pedophilic behavior by defendant toward female children. If he were on trial for that conduct, would the court have admitted evidence that he liked sex with adult females? We suspect not.

Nor do we believe a permissible inference of guilt can be drawn from defendants posited preference for adult men with relatively hairless bodies and modestly sized, circumcised penises. Based on this evidence, the prosecutor argued to the jury that defendant was guilty in part because Rusty, like the male participant in the mnage trois, lacked body hair and was circumcised. He said that defendant had, in the jail calls, admitt[ed] knowledge of [a] sex act and an interest in that sex act, [that was] the same sex act described by Rusty . . . .

We recognize a certain superficial appeal in this notion. Two of the features preferred by defendanthairlessness and small genitalsmay be viewed as characteristics that many males lose with puberty. It might thus be supposed that a man who is attracted to those characteristics would also be attracted to pre-pubescent boys. There are two things wrong with this supposition. First, a man, no matter how boyish looking, is not a boy. At least in the absence of expert testimony, the mere fact that a man (or woman) is attracted to boyish-looking men cannot be equated with an attraction to children, let alone a willingness to violate the criminal prohibition against sex with children. Boys and men simply are not the same thing. The prosecution theory is like saying that a man who likes 12-cylinder Bentleys is more likely than another man to steal a 12-cylinder Ferrari. A Bentley is not a Ferrari, and a Ferrari is not a Bentley, no matter how many cylinders they may have. A mans fondness for one of them cannot, without more, betoken a fondness for the other, let alone a willingness to steal it.

Second, the prosecution theory rests on the wholly speculative premise that it is the boyishness of the preferred mens appearance that appealed to defendant, i.e., that he was attracted to such men because they resembled, in these respects, children. That assumption illustrates the danger of inviting the jury to rely on folk psychology, for under critical examination such a preference might be seen to rest on any number of factors wholly unrelated to any predisposition to pedophilia. A hairless man may indeed be thought to resemble, in that respect, a boy. But he may also be thought to resemble a woman. Perhaps a bisexual male would find him more attractive than other men because he appears more feminine and less challenging to the beholders sense of his own masculinity. An adult, male or female, might prefer a certain body type for reasons of physiognomic fit, or because they mirror his or her own traits and thus appeal to a narcissistic streak. Indeed a given trait may not positively attract the beholder at all, but be preferred by him out of aversion to its opposite. Thus one might prefer partners with minimal body hair not because hairlessness itself has positive sexual associations but because hirsuteness has negative associations. A man who feels underendowed might prefer similarly configured males because the alternative would make him feel insecure or inadequate. Other explanations for a given preference may be sought in deeper, perhaps irretrievable origins such as association with some long-forgotten object of early sexual attachment or experience.

To misquote an old radio program, who knows what lusts lie in the hearts of men?let alone why. It may be possible, even easy, to identify the objects of a mans lusts, but it is perilous to indulge easy suppositions about whence they arise or what, if anything, they tell us about their host. Perhaps expert witnesses could be found who would profess to know whence a particular preference arises and what it implies about other, unacknowledged impulses. But prosecutors and judges do not know these things, and neither do lay jurors. A citizen accused of incestuous child molestation, no less than any other criminal defendant, is entitled to be tried based upon solid evidence and rational inferences, not facile conjecture and tendentious surmise.

As for circumcision, defendant himself explained his preference for that trait, and it had nothing to do with pedophilia. He said in essence that he liked to perform a particular form of oral sexnibblingthat was only tolerable to his partner if the latters penis were circumcised. This statement might have become relevant if either Rusty or Alfie had reported that defendant nibbled on his penis, but neither did. They consistently stated only that he sucked on them. This refutes respondents assertion that defendants statements to Angie involved the identical sex act complained of by the victims . . . . The prosecutor made the same assertion below, going so far as to write that the evidence would not have been relevant if the sex acts were not identical. But that is exactly the case. The acts described by the boys and those discussed by defendant with Angie were identical only at a level of generality where any two contacts between a mouth an a penis are identical. At that level of generality, the word identical is all but meaningless. Interest in engaging in common forms of sexual activity with adults simply is not evidence that one engages or wishes to engage in those same activities with children.

In sum, evidence of defendants preferred type in consensual adult partners was, in the absence of expert testimony, wholly lacking in probative value.[9] Evidence of defendants more general interest in male partners was not admissible to establish a predisposition to commit offenses of the type charged, but was admissible solely to contradict and establish the falsity of his denials to the Maine detectives of any such interest. Because that objective could presumably be established merely by questioning Angie, the actual recording and transcript of the jail calls possessed miniscule probative value.[10]

As against its minimal probative value the trial court should have weighed the great potential of this evidence to unfairly prejudice the defense. It held defendant and one of his main witnesses up to contempt and condemnation on grounds wholly unrelated to this matter, i.e., their disregard for deeply embedded taboos, including but not limited to those against simultaneous multiple sex partners, homosexual conduct, and promiscuity in general. Worse, it invited the jury to indulge the grossly pernicious supposition that defendants willingness to deviate from conventional sexual norms with consenting adults betokened a willingness to violate the far more grave sexual norms against incest and pedophilia. In his address to the jury, the prosecutor protested that he had no desire to conduct a referendum on how the defendant conducts his private life with consenting adults. The remark might be considered sincere had the prosecutor gone on to unequivocally tell the jurors that they could not conduct such a referendum and could not infer defendants guilt from lawful sexual proclivities, no matter how offensive or disturbing they might find them. Instead he offered the perhaps unintentionally revealing embellishment, I hope none of you think that by presenting that evidence, I am in any way commenting on what two [sic] consenting adults do in the privacy of their own home. This may be an example of apophasis, the rhetorical device of asserting something by a feigned refusal to do so. (See American Heritage College Dict. (3d ed. 1997) p. 64 [Allusion to something by denying that it will be mentioned.].) Even if the prosecutor spoke in utter good faith, his impulse to issue such a disclaimer highlights the intrinsically prejudicial tendency of this evidence.

As defendant correctly points out, the evidence also created a grave risk that jurors would hold Angie in moral opprobrium, and improperly refuse to credit her testimony, because of her unconventional sexual proclivities. She was a crucial defense witness not only on defendants character but also in seeking to discredit the highly debatable prosecution theory that defendant had fled to Maine to impede the investigation of Rusty and Alfies accusations. To allow the prosecution to gratuitously paint her as a sexual deviant was an extravagant abuse of discretion.

In sum, evidence of defendants general sexual interest in adult males and of his ability to masturbate to the point of ejaculation was admissible to show that he had lied to detectives on those subjects, and that his having done so reflected awareness of his guilt of the charged offenses. In all other respects the evidence of his telephone conversations with Angie was either entirely irrelevant, or so grossly lacking in probative value, and so fraught with potential for prejudice and confusion, that its admission was a textbook abuse of discretion. Because of the limited purpose and scope of the admissible evidence, the prosecution should have been required first to inquire of Angie whether defendant had admitted these matters to her. If she denied it, or the defense otherwise put the falsity of the earlier statements in issue, then the court might have been justified in admitting such additional evidence as was reasonably necessary to establish the relevant facts. As it is, the wholesale admission of this highly prejudicial material was clear error.

II. Boys Extrajudicial Statements

Defendant contends that the trial court erred by admitting Rusty and Alfies videotaped statements to Detective Asato. His chief argument is that the court did not conduct the hearing and make the findings required by Evidence Code section 1360 ( 1360).[11] Secondarily, he asserts that the evidence did not support the required findings. The first point is plainly correct; we do not reach the second.

In the prosecutors written motion in limine, he expressed the intention to introduce the boys videotaped statements into evidence under section 1360. When the issue was first discussed, the court professed familiarity with section 1360 but then stated, contradicting the plain language of the statute, [T]he law clearly provides that the videotaped interview of a child can be shown after they have testified in trial. The court went on to say, more accurately, [I]f you want me to review the tapes ahead of time prior to ruling on this, Ill be glad to do that because I do need to find that the time, content, and circumstances of the statement provides sufficient indicia of reliability, so I cant really do that without having reviewed them . . . . The court noted that it was the responsibility of the prosecutor, as proponent of the evidence, to make the recordings available for its review.

It does not appear that the court in fact watched the interview tapes, or otherwise conducted any inquiry into their admissibility under section 1360, before they were played to the jury. Two days after the above colloquy, the court stated that it had received various recordings from the prosecutor but realized I simply was not going to have enough time to view all the tapes and listen to them, so I read all the transcripts; I have reviewed each of those transcripts, and I keep in mind the fact the transcript is always just someones opinion of what the tape actually said. When the subject next came up, the prosecutor asked about the status of my 1360 motion, stating, I know you had taken under submission to review the tape, but I dont recall if you ruled yet. The court replied, If the children testify, my understanding of the law is you can use the tapes. Later, when defense counsel sought to make sure the record reflected her objection under section 1360, the court interrupted her and stated, I already ruled that it could come in under 1360.

The court did not expressly make the findings required by section 1360 until long after the fact when, in denying defendants motion for new trial, it said, Next, you argue that Rusty and Alfies prior statements to Detective Asato were improperly admitted under Evidence Code 360 [sic]. Again, you failed to point out why the Courts ruling on this issue was deficient; and more importantly, how it prejudiced your case. The statement did comply with Evidence Code 360 [sic] and In Re Cindy L., a 97 case, 17 Cal. 4th. at 15. [] Although I dont recall exactly what I said in ruling the interviews could be played, I believe I established a proper record. It did appear to me that the time, content, and circumstances of the statements provided sufficient indicia of reliability. I did not find that the officers led the witnesses. I thought that their statements were mainly consistent with their testimony at pretrialat prelim and trial, and while they have mental issues, there was nothing about their mental issues that appeared to make them unable to tell the truth and to tell what had happened to them, and the boys said several times how much they cared for their father, missed him, were sad that he wasnt home anymore. I dont find that there was any motive to lie.

There is little room for doubt that the court failed to comply with the plain terms of section 1360. It never conducted a hearing to evaluate the sufficiency of the indicia of reliability affecting the boys videotaped statements. Respondent refers to the first colloquy cited above as a hearing, but it was not the hearing contemplated by the statute. The court expressly reserved a determination on the reliability of the statements until such time as it could review the videotapes. Even if such a review could satisfy the requirement of a hearing, there is no evidence that the court in fact reviewed the videotapes prior to their admission, and its most pertinent comments strongly suggest the contrary. It appeared to rely on the proposition, which it twice stated, that [i]f the children testify, . . . you can use the tapes. This view is clearly mistaken; the statute contemplates both the required hearing and findings, and that the children either testify or are unavailable to do so. These requirements are plainly stated in the conjunctive. ( 1360, subd. (a) [statements admissible if all of the following apply].) The presence of one required condition does not excuse the absence of others.

Citing In re Cindy L. (1997) 17 Cal.4th 15, 35, respondent asserts that the admission of hearsay evidence will not be overturned on appeal absent an abuse of discretion. But this presupposes that (1) the trial court was vested with discretion to admit the evidence and (2) the court exercised that discretion. Here section 1360 invested the court with discretion to determine whether the proffered statements satisfied the statutory conditions for admission. The trial court, however, never exercised that discretion, relying instead upon an erroneous categorical rule of admissibility. Such a ruling is entitled to no appellate deference; it is clearly erroneous on its face.

Respondent does not contend that defense counsel forfeited the issue by failing to adequately object to the courts failure to conduct the required hearing and make the required findings. Such a failure, if found, would seem to lack any conceivable tactical motive, and thus to constitute ineffective assistance of counsel. Respondents only defense of the courts ruling is that the court performed its duty under the statutea proposition we reject. Beyond that respondent contends that any error was harmless in light of the overwhelming evidence of guilt provided in the credible testimony of the two victims, appellants extensive extra-judicial statements reflecting his consciousness of guilt, and the propensity evidence showing his inclination to engage in lewd touching with children. We will reserve consideration of this assertion until we have completed our canvass of defendants claims of error.[12]

III. Swimming Pool Incidents

A. First Incident

Sandra DiLeo testified over objection that she lived in the Foothills apartment complex while defendant and his family lived there. In the early summer of 1999 she was sitting at the complexs swimming pool with a friend and fellow resident. Defendant was in the pool, as were several children. Defendants sons were on lounge chairs at one end of the pool. Defendant was playing a game with Chelsea, a girl or five or six. He was chasing her like Jaws, and she was laughing and splashing. He was telling her to get out of the pool and jump back in. He would catch her, she would roll around in his arms like a fish, and then get away.

Ms. DiLeo testified, [I]t caught my attention because I couldn't believe what I was seeing. I thought I was seeing things. I mean, he would catch her between her crotch and her upper body. By this she meant that [h]e would catch her between her legs, right where her vagina was. Then he would chase her like jaws for a while and guide her back out of the pool where she would jump back in and he would catch her again in the same way. His hand would always be on her vagina when he caught her. He would not move his hand, as Ms. DiLeo felt was normal if you catch a child. He left it there for the entire two or three minutes that he would have her under the water playing the game. It seemed deliberate to her. However, she could not see his hand when it was under the water. She inferred that it stayed there because his arm never moved and when he would lift it back up to come out, his hand would still be there. His other hand was positioned toward her upper body, more balancing than holding her.

Ms. DiLeo testified that this happened 10 or 12 times, at least. After the first couple of times she turned to her friend and said that it wasnt right. She asked defendant to approach and speak to her. He swam over and she asked him could he please leave that little girl alone. He laughed and replied that he could play with the children. She told him that one of his boys was sleeping and the other was shivering, freezing, and that she was going to take care of Chelsea and he was to leave her alone. He laughed and returned to doing exactly what he had been doing, except that now every time he caught Chelsea he would look at me with a look, a glare . . . . After three or four more repetitions he got out of the pool and left with his boys.

Ms. DiLeo did not report the incident to Chelseas mother. But the next time she saw her, she went up to her and I said, I dont think you should let Chelsea be left around Mr. Whicker unattended anymore.  At some later point Ms. DiLeo saw a flyer signed by defendant. The flyer, which the court admitted, was apparently distributed to numerous residents of the complex.[13] It gives defendants version of the events at the pool, stating that he has been forced to defend himself because of a single persons opinion that I may have some sort of interest in mentally or physically hurting young children, which ill rumor rested on that persons exaggerated version of the incident.

Called by the defense late in the trial, Chelsea, the supposed victim in the foregoing incident, testified that she was 11 years old at the time of trial. She remembered playing in the pool with Rick, who would pick her up and throw her in the water. She did not remember where he put his hands. At that time she was not afraid of him. She remembers a time when an adult woman was watching over her and got upset with Mr. Whicker. The woman said something to Chelseas mother, who then told Chelsea she wasnt allowed to go into the Whickers house any more. She stopped playing games with him in the swimming pool after that. The trial court refused to permit the defense to introduce earlier statements by Chelsea in which she had said that she remembered defendant touching her between the legs but believed it to have been an accident.

B. Second Incident

Sandra DiLeos adult son, Craig DiLeo, testified that he also lived in the Foothills complex in his own apartment right above the pool. On one occasion when he was smoking outside his apartment watching people in the pool, an altercation took place between himself and defendant.[14] Defendant was in the pool playing with two girls, aged about eight or nine. Defendant was holding them like you would hold a cake, with his hands underneath them. He had one hand on the chest and the other on the vagina. He would rotate and then, with a hand on the buttocks between the legs, push them off. It didnt look or feel right. Defendant did this for a couple minutes, enough to do it two or three times with each girl. He then went to some steps at the end of the pool where his two boys were sitting. He grabbed the two girls and put one on each leg, facing away from him. He then started bouncing and splashing, with water going everywhere. This went on for 10 or 20 seconds until Craig intervened. I called down to him, Buddy, hey, and he ignored me. So I saidI raised my voice a little bit and I said, Hey, you know, you. Could I have your attention? [] And he turned around. [] And I told him I think he should be playing with his own kids and not with the other kids. He should maybe leave them alone. [] And he told me to mind my own business. He said, You cant