P. v. Rodriguez

Filed 7/19/07 P. v. Rodriguez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEALS from judgments of the Superior Court of Los Angeles County.

John T. Doyle, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Ismael Rodriguez.

Lawrence R. Young & Associates, Lawrence R. Young and Andy Miri for Defendant and Appellant Jaime Valderama.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Defendants Ismael Rodriguez (Rodriguez) and Jaime Valderama (Valderama) appeal from the judgments entered after a jury trial in which they were convicted of forcible rape (Pen. Code, 261, subd. (a)(2)) and forcible rape while acting in concert (Pen. Code, 264.1).[1] Each defendant was sentenced to an aggregate term of seven years in state prison.

Valderama contends that the evidence is insufficient to support the judgment, as the victims testimony was not reasonable and credible and of such solid value that a reasonable trier of fact could properly rely on such evidence in finding the defendant guilty beyond a reasonable doubt. Rodriquez contends that (1) he was denied his Sixth Amendment right to confrontation, as the trial court unduly limited his cross-examination of three prosecution witnesses, (2) by improperly restricting his own trial testimony, the trial court denied him his due process right to present a complete defense, and (3) the cumulative effect of the trial courts improper evidentiary rulings denied him due process and a fair trial.

We conclude that the contentions lack merit and affirm the judgments.

FACTS

I. The Prosecutions Case-in-chief

A. K.H.s and N.H.s Testimony

On Saturday evening, May 21, 2005, 15-year-old K.H. attended a party with her school friend, 15-year-old C.A.[2] The teenagers mothers had planned that after the party, K.H. would spend the night at C.A.s residence. K.H.s mother, N.H., testified that normally she would not let her daughter go anywhere unsupervised. However, C.A.s mother had told N.H. that the mother would drive the teenagers to the party and home again, and N.H. and K.H. understood that the party was for a little boy. The party was being held at the Compton duplex where C.A.s married sister N.S. lived. N.S. lived in the front unit of the duplex with the family of her husband, Ramon Happy Santana, Jr. Elizabeth Liz Montes, age 23, lived with several other Santana family members in the duplexs rear unit. Montes was Santanas aunt. The party was held on the driveway next to the duplex.

At 6:30 to 7:00 p.m. on the evening of the party, C.A.s mother drove K.H. and C.A. to the Compton duplex. Some 30 to 60 persons attended the party. All evening, K.H. sat with the girls and some of the women attending the party and danced with them. Montess baby was with them. Early in the evening, K.H. changed from the black dress she had arrived in into her pink polka dot pajamas. At trial, K.H. explained that the pajamas were more comfortable. Early in the evening, C.A. brought K.H. a cup of about four inches of tequila. K.H. drank the liquor and claimed that she did not feel its effects. Later, during the party, C.A. introduced K.H. to Bones, whom C.A. wanted to date, and to his friend Sleepy. For a while, C.A. talked to Bones and danced with him. Then, Bones went off to talk to others. When Bones was present, K.H. had little to say. She just sat there next to C.A. and Bones. Bones brought K.H. a coke. As the party went on, K.H. saw Sleepy there. He was sitting over by the disc jockey.

When the party wound down after midnight, C.A. told K.H. that she was going to the bathroom. C.A. disappeared, and K.H. could not find her. K.H. believed that she saw a young woman who looked like C.A. driving away with a male in a car. Because K.H. was supposed to drive home with C.A. and she knew no one there well, K.H. felt scared and panick[y]. K.H. looked again inside and on the driveway for C.A. and then stood in front of the duplex awaiting C.A.s return. After a while, K.H. asked several persons to use their cellular telephone to call C.A., but they refused. At about 3:00 a.m., K.H. asked N.S. about C.A.s whereabouts, and N.S. assured K.H. that C.A. would return.

At 3:00 to 3:30 a.m., Sleepy and Bones walked out of the party area to the front of the duplex. The youths assured K.H. that they would take care of her. Suddenly, they grabbed her, dragged her to a van parked in front of the duplex, and threw her inside. Bones held her down on a seat while Sleepy pulled down her pajama bottoms and panties and inserted his penis into her vagina. He moved in and out seven to 10 times. She resisted the rape, but was overpowered. Bones had a hand over her mouth, and she bit him hard. When he pulled his hand quickly away from her mouth, she started screaming, Stop. Bones told Sleepy that someone was going to hear her and said, Lets go. The youths ran from the van.

K.H. pulled up her clothing. Blood was running down her leg, and she saw white stuff on her panties. She went to the rear duplex and asked for Montes. Montes or the family members in the house claimed that there was no telephone in that unit of the duplex, and Montes let K.H. spend the night in her bedroom with her and her baby. K.H. said nothing to Montes about the rape. She explained that it had been too weird; suddenly, after the rape, everyone had disappeared from the area. It was[] like everyone knew what was going to happen. So she did not trust anyone at the duplex. Also, during the rape, Sleepy and Bones told her that if she said anything, they would kill her and [her] family would die.

At 8:00 a.m., Montes drove K.H. to C.A.s residence, where K.H. showered and slept until 1:30 p.m. K.H. told C.A. about the rape, and K.H. talked about telephoning her mother, but C.A. discouraged her and told her to shower and rest. C.A. told her not to report the rape. Later that afternoon, K.H.s mother picked her up and drove her home.

When K.H. arrived home, she did not tell her mother about the rape. Because of the threat, she was still frightened. At home, she locked herself in her room. She felt dirty and not right, and she attempted to commit suicide by cutting her wrists with a needle. It hurt, and she gave up.

On Monday morning, May 23, 2005, K.H.s mother went to work. K.H. wrote a note to her siblings revealing the rape and went to D.s residence. K.H. knew D. through D.s brother, with whom K.H. had attended school. D. talked to K.H. about telling her mother about the rape, and that evening, D. telephoned N.H. and told N.H. about the rape. N.H. drove over to pick up K.H.

In the car, K.H. told her mother about the rape, and her mother comforted her. They drove to C.A.s residence. C.A.s mother and C.A. accompanied K.H. and her mother to the duplex, where out in front on the sidewalk, the two mothers attempted to discover the rapists identities from N.S. A group of youths K.H. believed were gang members emerged from the duplex and threatened to shoot N.H. and K.H. if they did not leave. Leaving C.A. and her mother there, N.H. and K.H. drove home and then went to the Compton Sheriffs Station.

Sometime after 6:00 p.m. on Monday, May 23, 2005, K.H. reported the rape to two deputies, one of whom was Deputy Joseph Rodriguez (Deputy Rodriguez). Shortly after midnight on Tuesday, May 24, 2005, Deputy Rodriguez drove K.H. to the hospital for a sexual assault examination. The nurse specialist saw two tears in K.H.s hymen and reddening on her labia that corroborated K.H.s claim of forcible, nonconsensual sexual intercourse.[3]

On May 24, 2005, Sergeant Richard Ruiz was assigned to investigate the rape. During the day on May 24, 2005, the sergeant telephoned C.A. for a statement. C.A. told him that N.S. was married to a member of the Compton Vatos Locos criminal street gang. Sergeant Ruiz spoke to a local gang officer, and at 1:30 p.m. that day, he showed K.H. a six-pack photographic display. K.H. identified Valderama, who was in the No. 3 position in the display, as Bones, the youth who had assisted the rape. K.H. told the sergeant that Valderama might have a tattoo of a V on one arm and an L on the other and that she had bitten him hard on the finger. She also told the sergeant that early during the party, she drank a cup of tequila. At some point, she also told her mother about the tequila, but she did not disclose that bit of information to Deputy Rodriguez or to the nurse specialist.

On May 26, 2005, Sergeant Ruiz showed K.H. another six-pack display. She selected Rodriguezs photograph from that display and identified him as the youth who actually had sexual intercourse with her. In court at the preliminary hearing and at trial, she identified defendants as her rapists. During the identifications, K.H. said that she was certain that defendants were her assailants.

During direct testimony, K.H. testified that she was a virgin. During cross-examination, K.H. denied that she had or ever had had a boyfriend, that she did not know a youth named Juan nor Bernando Nono Westeclawe, Jr., and that she did not write two letters, exhibit Nos. C-1 and C-2, to C.A. She denied smoking during the party and was adamant that she was never drunk. Also, at the party, she did not drink an alcoholic beverage by the name of Alazaid. She admitted that on one previous occasion, at a family party, she had been given a beer. Otherwise, she did not drink.

N.H. testified that she had never heard of a youth named Juan nor a youth named Westeclawe.

B. C.A.s Testimony

C.A. testified that K.H. had lied to her mother, N.H., to get permission to go the party. K.H. did not drive to the party with C.A. and her mother; K.H. arrived at the party when N.H. dropped K.H. off at about 6:00 p.m. C.A. claimed that she had driven there earlier with her sister Ysenia. C.A. said that during the party, K.H. wore a black dress, danced, smoked, and drank a considerable amount of beer and tequila until she was buzzed. C.A. described K.H. as falling down drunk. C.A. recalled an incident later in the evening where K.H. grabbed a bottle of Alazaid, an alcoholic beverage made with fruit, from two women who had just arrived at the party. C.A. claimed that K.H. drank that entire bottle of liquor alone. C.A. told the sergeant that she also had been drinking.

C.A. agreed that Valderama, or Bones as she knew him, was at the party, and she acknowledged her romantic interest in him. She denied that the Sleepy she knew had attended the party. She said that as she left the party, she saw Valderama leaving the duplex in a white truck with his brother. She said that after the party, at 8:00 a.m. on Sunday morning, she saw Westeclawe drop off K.H. at her residence. That afternoon, K.H. told her that she had been raped by Bones and Sleepy, and C.A. told K.H. that she should report the crime.

C.A. said that K.H. had an ex-boyfriend, Juan, and a current boyfriend, Westeclawe, who was age 21 and a crew member who was out of school. C.A. explained that at the end of the party, at about 2:50 a.m., her uncle came to pick her up. He was mad at her because she was supposed to be home by 1:00 a.m. Because the uncle was mad at C.A., K.H. declined a ride home with them. C.A. made several inconsistent claims to the effect that K.H. was planning to get a ride from the boyfriend then or in the morning, and that K.H. had planned to spend the night with N.S.

C.A. claimed that K.H. did not attempt suicide after the rape. To the contrary, she said that K.H. had attempted to slash her wrists months earlier in March 2005. C.A. claimed that the reason for the suicide attempt was that K.H. was sad because she had not been allowed to see Westeclawe. C.A. brought to court two letters, one of which was prepared largely on a computer. C.A. explained that K.H. wrote the letters. C.A. explained that in the letters, K.H. was writing about her boyfriends and about how sad K.H. was because she was unable to see them.[4]

C. Sergeant Ruizs Testimony

Sergeant Ruiz testified about the contents of the May 24, 2005, telephone statement C.A. made that impeached C.A.s trial testimony. In their conversation, C.A. said that her mother had driven her to the party, that she left the party with some friends, and that she had forgotten all about K.H. She acknowledged that Bones and Sleepy attended the party, that she introduced K.H. to defendants, and that defendants were friends of hers who belonged to the Compton Bario Locos gang. The sergeant explained that during their conversation, it was apparent that C.A. was reluctant to speak to him because N.S.s husband was a member of the same gang as the rape suspects. The sergeant had a hard time getting information from C.A. C.A. mentioned nothing about K.H. having a plan to stay at the duplex overnight or that at the party K.H. was drinking alcoholic beverages and was falling down drunk. C.A. also admitted to the sergeant that she had told K.H. not to report the rape. She claimed that she said that because defendants were very dangerous.

On June 2, 2005, the sergeant arrested Valderama and Rodriguez. Valderama had no tattoos on his arms and no bite mark. Rodriguez, however, had smile now and cry later tattoos on his arms, which amounted to U- or smile-shaped tattoos, one on each arm and one of which was upside down.

II. The Defense

A. Valderamas Defense

Valderama did not testify.

Montes testified that on May 21, 2005, she gave herself a birthday party. It was a family party, to which a few friends were invited, and she had a disc jockey. At about 7:00 p.m., she saw K.H. at the party. Montes met K.H. that night, and she testified to an almost identical version of C.A.s testimony about how K.H. wore a black dress, that she was dancing and drinking at the party, and that she was falling down on the dance floor. Montes said that K.H. later grabbed a bottle of Alazaid out of the hands of one girl and drank it alone. Montes acknowledged that Valderama was at the party and that he was the brother of a friend of hers. She claimed that at about 3:00 a.m., she saw Valderama leave the party in a white truck with his brother.

Montes said that after 3:00 a.m., she was cleaning up, and she saw K.H. out front speaking to a Hispanic youth she did not know. After 4:00 a.m., K.H. approached her, looking as if she was tired after a night of drinking. K.H. said that she had no ride home and wanted to spend the night. Montes let her sleep on the floor of her bedroom. The family had a telephone. At 8:00 a.m. the next morning, K.H. left her to ask N.S. whether she could use N.S.s cellular telephone to call her boyfriend to ask him to pick her up. At about 9:00 a.m., Montes saw K.H. get into a car occupied by a male and drive off.

The party disc jockey, Mercy Villa, testified. She said that K.H. was drinking, smoking, and apparently drunk at the party. Villa also claimed to have observed K.H. grab and drink from a bottle of Alazaid. Villa said that she saw Valderama at 3:00 a.m. leaving the party in a white truck with his brother. She explained that she saw K.H. at about 3:40 a.m. She asked K.H. whether she wanted a ride, and K.H., who had a cellular telephone in her hand, replied that she was telephoning her boyfriend to ask him to come and drive her home.

B. Rodriguezs Defense

Rodriguez testified to an alibi. He said that on Saturday and Sunday, May 21 and May 22, 2005, he was at home with his family watching television or sleeping. He also said that ever since his arrest, after he had been told that he was being charged with rape, he had maintained his innocence.

Rodriguezs mother, brother, and sister corroborated the alibi, except that they acknowledged that they were asleep overnight from at least 12:30 a.m. to 7:00 a.m. on the Sunday morning in question. Rodriguezs brother testified that he shared a bedroom with Rodriguez. During cross-examination, the family members agreed that they had never reported the alibi to law enforcement or to the prosecutor.

DISCUSSION

I. Valderamas Contention

Valderama contends that the evidence is insufficient to support the judgment. We disagree.

A. TheStandard of Review

Our review of the sufficiency of the evidence is deferential. We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witnesss credibility for that of the jury. (People v. Koontz (2002) 27 Cal.4th 1041, 1078; accord, People v. Smith (2005) 37 Cal.4th 733, 738-739.)

B. The Analysis

Defendant complains that K.H.s testimony was not reasonable and credible and of such solid value that a reasonable trier of fact could find guilt beyond a reasonable doubt. He argues that K.H.s accusation was uncorroborated and inconsistent with the testimony of the other witnesses and that there was other evidence that Valderama left the party before the rape occurred. He points to certain evidence supporting his claims:
(1) there was conflicting evidence as to whether K.H. consumed a number of alcoholic beverages at the party and was falling down drunk, (2) K.H. failed to tell the sergeant and the nurse specialist about drinking tequila, (3) Montes, C.A., and Villa testified that about 3:00 a.m., they saw Valderama leave the party in a white truck with his brother, (4) at about 3:00 a.m., Montes saw K.H. talking with a Hispanic male, a stranger, out in front of the duplex, (5) K.H. asked Montes whether she could spend the night, (6) at Valderamas arrest, he did not have the described V and L tattoos, nor any tattoos on his arms, nor was there a bite mark on his finger, (7) there was conflicting testimony from K.H. and C.A. with respect to how and when the teenagers arrived at the party, (8) there was conflicting testimony about the clothing K.H. wore during the party, and (9) there was conflicting testimony as to whether K.H. declined to leave the party with C.A., whether K.H. claimed that she was getting a ride home with her boyfriend, and whether she was planning to spend the night at the duplex.

Valderama also argues that K.H.s testimony is rampant with inconsistencies, so much so that it calls the evidence into question and undermines the reliability of the prosecutions case. He asserts that the evidence presents a classic he said, she said case, in which there is only one prosecution witness whose creditability cannot be verified or corroborated. Valderama asserts that K.H.s testimony was incredible in that either she lied during the trial, or all the other trial witnesses must have lied.

The contention lacks merit. It amounts to no more than an invitation to this court to reweigh the evidence and substitute its judgment for that of the jury. That is not the function of an appellate court. (People v. Culver (1973) 10 Cal.3d 542, 548.) The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.) The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.] (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.)

In this case, K.H. testified to a coherent version of the events of the party, the subsequent rape, and to the events that occurred after the rape and during her overnight stay at the duplex. She said that she attended what she anticipated would be a family or childrens party at the duplex where her friends sister lived. However, C.A. apparently took advantage of her mothers absence to take off with friends or a potential boyfriend, leaving K.H. alone at the party late at night without access to a telephone and without a ride to C.A.s residence. K.H. waited for C.A. to return, but C.A. had forgotten about her. The defendants, who attended the party, saw K.H. alone, frightened, and standing outside in front of the duplex. They forcibly dragged K.H. to a nearby van, and while one youth held her down, the other youth raped her.

K.H.s testimony was corroborated in collateral respects by her mother. Her testimony was also corroborated by her physical condition as observed by the nurse specialist during the sexual assault examination. K.H.s testimony was additionally corroborated by C.A.s initial May 24, 2005, statement to Sergeant Ruiz, and by K.H.s independent out-of-court identification of two gang youths who had known gang monikers matching the names of her assailants. K.H. was certain of her identifications of defendants, and the tattoos on Rodriquezs arms matched the description of the tattoos K.H. mistakenly attributed to Valderama.

There was some conflicting testimony in the case. However, K.H.s testimony was not physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181 [unless the testimony is physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction].) K.H.s bite may not have broken Valderamas skin, or the bite may have healed during the 11 days before his arrest. The jury had the opportunity during trial to observe the demeanor of the witnesses and to decide who was telling the truth. The jury was under no obligation to believe Valderamas or Rodriquezs partial alibi evidence. Valderama and Rodriquez were Compton Vatos Locos gang members, and N.S. was married to a fellow gang member. With such evidence, the jury was entitled to believe that C.A., Montes, and Villa, who at trial launched almost identical assaults on K.H.s credibility, had all been influenced either by the gang or by family ties and that they had concocted a defense to persuade the jury that K.H. was a liar.

The trial evidence was sufficient to support Valderamas convictions of forcible rape and forcible rape in concert.

II. Rodriguezs Contentions

Rodriguez makes shotgun claims that the trial court denied him his state and federal constitutional rights to confrontation and to present a complete defense at trial by a number of its evidentiary rulings. He also contends there was cumulative prejudicial error that resulted in a fundamentally unfair trial that effectively denied him due process.

The contentions lack merit.

A. The Relevant Legal Principles

All relevant evidence is admissible. (Cal. Const., art. 1, 28, subd. (d); Evid. Code, 351.) Relevant evidence is evidence with a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The test of relevance is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. [Citation.] (People v. Deletto (1983) 147 Cal.App.3d 458, 478.)

A trial courts ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (People v. Ledesma (2006) 39 Cal.4th 641, 705.)

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. . . .  Confrontation means more than being allowed to confront the witness physically. . . .  [A] primary interest secured by it is the right of cross-examination. [Citation.] (Davis v. Alaska (1974) 415 U.S. 308, 315.)

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness. [Citations.] However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation], the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] (People v. Hillhouse (2002) 27 Cal.4th 469, 494.)

The right of a defendant to offer the testimony of witnesses, including his own testimony, is a fundamental element of due process of the law. (Washington v. Texas (1967) 388 U.S. 14, 19.) In some limited circumstances, the United States Supreme Court has found that excluding critical evidence offered by a defendant violates the due process clause. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683, 687-690 [trial courts exclusion of evidence of circumstances of defendants confession denied defendant fair opportunity to present a defense]; Chambers v. Mississippi (1973) 410 U.S. 284, 302-303 [criticizing exclusion of critical evidence of declarations against interest and finding a constitutional violation in conjunction with other trial error].) But the United States Supreme Court has acknowledged its traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts. (Crane v. Kentucky, supra, 476 U.S. at p. 689.)

Our own state Supreme Court has criticized attempts to inflate garden-variety evidentiary questions into constitutional ones. (People v. Boyette (2002) 29 Cal.4th 381, 427.)  In Boyette, our Supreme Court explained: As a general matter, the [a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense. [Citations.]  Although completely excluding evidence of an accuseds defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accuseds due process right to present a defense. [Citation.] If the trial court misstepped, [t]he trial courts ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense. [Citation.] (Boyette, supra, at pp. 427-428.)

B. The Analysis

1. The Right to Confrontation

Rodriguez contends that the trial court abused its discretion and denied him his constitutional rights to confrontation during the cross-examination of prosecution witnesses K.H., N.H. and Deputy Rodriguez.

He asserts that the trial court improperly precluded trial counsel from questioning K.H. and her mother about the extent and the origin of K.H.s emotional instability. He claims that he was entitled to question K.H. to rebut her claim of virginity and to demonstrate that she fabricated the rape to obfuscate the fact [K.H.] slept with [a boyfriend,] Westeclawe. Also, he was entitled to cross-examine K.H. and N.H. in these areas to rebut the suicide attempt as it corroborated the rape.

He also claims that the trial court improperly cut off his cross-examination of Deputy Rodriguez, the deputy who took the initial rape report. He urges that the questioning was relevant, as trial counsel wanted to use cross-examination to demonstrate that the deputy was inexperienced and that the deputy had conducted a superficial police investigation.

He asserts that these improper limitations emasculated Rodriguezs ability to test the credibility of the prosecutions primary witnesses, and for that reason, the judgment should be reversed.

We conclude that the trial courts evidentiary rulings were well within its discretion, and the cross-examination in the case was sufficient to meet the requirements of the state and federal confrontation clauses.

The use of psychiatric testimony to impeach a witness is generally disfavored. (See 1112 [notwithstanding subd. (d) of  28 of art. I of Cal. Const., trial court may not order psychiatric examination of a witness to assess credibility]; People v. Marshall (1996) 13 Cal.4th 799, 835 [a trial court is not required to interrupt trial for psychological evaluation of a witness where cross-examination adequately discloses that a witnesss competency may have affected her credibility].) As a foundational matter, defendant made no proffer that mental illness had impacted K.H.s ability to accurately recall or to describe past events. (People v. Gurule (2002) 28 Cal.4th 557, 591-592.)

Also, trial counsels inquires were not narrowly tailored to elicit whether K.H. had any problems in the past that affected her ability to perceive and recollect. The jury learned through K.H.s and her mothers testimony that since May 21, 2005, K.H. was initially suicidal, that following the rape, K.H. still cried a lot and was continually sad, that she was being treated by a doctor, and that she had been or was engaged in some form of psychotherapy. The trial court permitted impeachment with the letters that C.A. produced in court, which tended to corroborate that K.H. was lying to cover up that she had had sexual intercourse with a boyfriend or that she was mad at Westeclawe and agreed to have sexual intercourse with a youth at the party or with some stranger. The trial court properly sustained the prosecutors objections to the efforts by trial counsel to elicit the specifics of K.H.s present psychiatric condition. The mother had testified that K.H. was now healed. Even if K.H. was currently in therapy with a psychiatrist, neither K.H. nor N.H., lay witnesses, could give an expert opinion on K.H.s psychiatric condition, if any.

Where the information sought during cross-examination is irrelevant to the issues in the case or to witness credibility, a trial court is entitled to use Evidence Code section 352 to prevent harassment and the use of misleading evidence. That is all the trial court did here. Also, defendant was not entitled to elicit expert opinion from these lay witnesses.[5]

Pursuant to Evidence Code section 352, some of the replies to trial counsels inquiries to Deputy Rodriguez were also properly excluded. Deputy Rodriguez was the deputy who took K.H.s initial report, not the case investigator. The investigator for the case was Sergeant Ruiz. Deputy Rodriguezs testimony was relevant only in that he took the initial rape report and that he drove K.H. to the hospital for the sexual assault examination. The deputy also testified that when she reported the rape K.H. appeared to be upset. The accuracy of Deputy Rodriquezs recollections of what he included in the initial police report or how many pages the initial report contained were points that were unimportant in light of the entire force of the trial evidence. Hence, the trial court properly excluded that testimony pursuant to Evidence section 352.

The Truth-in-Evidence provision of Proposition 8, which added article I, section 28, subdivision (d), to the California Constitution, does not require that this court find the trial court abused its discretion by excluding such evidence. [I]n criminal proceedings, section 28(d) supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of section 28(d) itself. (People v. Stern (2003) 111 Cal.App.4th 283, 297-298.) The Truth-in-Evidence provision of the California Constitution expressly does not apply to existing evidentiary rules regarding the admissibility of hearsay and the trial courts exercise of discretion pursuant to Evidence Code section 352.[6]

Also, a defendant does not have a constitutional right to elicit all relevant evidence in his favor, no matter how limited in probative value such evidence is and so as to preclude the trial court from exercising its discretion pursuant to Evidence Code section 352. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) [I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value. (People v. Chatman (2006) 38 Cal.4th 344, 373, quoting from People v.Wheeler (1992) 4 Cal.4th 284, 296-297, fn. omitted.)

The trial courts rulings were proper and unaffected by the Truth-in-Evidence provision. The prosecutors numerous objections did not prevent adequate cross-examination; in large part, the prosecutor objected to prevent the introduction during trial of irrelevant and misleading evidence. Trial counsel had an adequate opportunity to cross-examine K.H., N.H., and Deputy Rodriguez, and the trial courts rulings did not prevent defendant from exposing to the jury evidence from which they could appropriately draw inferences relating as to the reliability of the witnesses. The trial courts rulings were in conformity with the ordinary state rules of evidence, and thus the rulings did not deprive Rodriguez of his constitutional rights to confrontation.[7]

2. The Claim of a Denial of the Opportunity to Present a Defense

On appeal, Rodriquez contends that three of the trial courts evidentiary rulings, which excluded some of his trial testimony, denied him his due process right to present a complete defense. He complains about the exclusion of the following testimony: (1) that he was cooperative during his arrest and answered Sergeant Ruizs questions, (2) that he was not permitted to testify about how he had performed as a student during high school, and (3) that he had told Sergeant Ruiz after his arrest that he did not attend the party.

Defendant argues that he was entitled during his trial testimony to inform the jury that he was cooperative with the police at the time of his arrest and that he had performed well in school. His theory of admissibility for this evidence is that all relevant evidence is admissible following Proposition 8s Truth-in-Evidence provision, and the first two items of evidence constituted evidence of good character that was properly admissible pursuant to Evidence Code section 1102 to rebut the prosecutions use of bad character evidence. Rodriguez claims that the bad character evidence that he was entitled to rebut was the testimony indicating that he and Valderama were gang members.

Defendant misstates the law. It is settled that Evidence Code section 1102 is unaffected by the Proposition 8s Truth-in-Evidence provision. (People v. Ewoldt (1994) 7 Cal.4th 380, 390-393; People v. Felix (1999) 70 Cal.App.4th 426, 431-433.) Section 1101, subdivision (b) permits evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .) other than his or her disposition to commit such an act. Section 1102 is an exception to the rule in section 1101 and provides as follows: In a criminal action, evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a). (Evid. Code,  1101, 1102.)

The gang evidence was not admitted for the purpose of proving defendants bad character; it was admitted to bolster K.H.s identifications of defendants as the rapists. Defendant could have prevented the jurys consideration of this evidence as propensity evidence by merely requesting appropriate limiting instructions. Even assuming that such evidence properly could have been rebutted by defense character evidence, the two proffered items of defendants testimony were inadmissible for that purpose. Defendant argues that at trial he was entitled to use specific instances of good conduct pursuant to Evidence Code section 1102. But section 1102 permits only the use of opinion evidence or reputation evidence to prove conduct in conformity with such character or trait of character. Accordingly, the trial court properly excluded these items of specific instances of conduct. (People v. Felix, supra, 70 Cal.App.4th at pp. 432-433.)

Further, defendants self-serving and exculpatory out-of-court statements made at the time of the arrest to Sergeant Ruiz were not admissions pursuant to Evidence Code section 1220, which were admissible during a trial. (People v. Picl (1981) 114 Cal.App.3d 824, 865.) Defendant argues that not withstanding his statements inadmissibility as an admission, the statement qualifies as a prior consistent statement which may be used for rehabilitation where a charge is made that a defendants trial testimony was recently fabricated or influenced by bias. (Evid. Code, 1236, 791; see, e.g., People v. Hayes (1990) 52 Cal.3d 577, 609.)

He urges admissibility because the prosecution made an implied charge that his alibi was recently fabricated. He explains that at trial, he and his family testified to an alibi. On cross-examination, the prosecutor asked his family members whether prior to trial they had informed the police or the prosecutor about the alibi. The prosecutions purpose in making these inquiries was to imply that he and his family members had recently fabricated the alibi. He claims that, consequently, his statements to the sergeant denying attendance at the party disproved that inference.

Rodriguez has failed to demonstrate that the statement met the requirements of Evidence Code section 791. A prior statement consistent with a witnesss trial testimony is admissible only if either (1) a prior inconsistent statement was admitted and the consistent statement predated the inconsistent statement, or (2) an express or implied charge is made that the testimony is recently fabricated or influenced by bias or other improper motive, and the consistent statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen. (Evid. Code, 791.) (People v. Smith (2003) 30 Cal.4th 581, 630.) The party seeking to introduce a prior consistent statement must show that the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen. (People v. Ainsworth (1988) 45 Cal.3d 984, 1014.)

At trial, when Rodriguez sought to introduce the statement that he had not attended the party, trial counsel made no proffer that the statement was a prior consistent statement. Also, at that time, trial counsel failed to establish the foundational fact that the statement was made prior to the time at which a motive to fabricate arose. Consequently, the trial court properly excluded Rodriguezs postarrest claim that he did not attend the party. Later, trial counsel elicited from Rodriguez that upon his arrest, he was surprised by the accusation of rape, and after having been told of the charge, he maintained his innocence. Even if this latter testimony supported admitting Rodriguezs statement as a prior consistent statement, at the point the potential foundational testimony came into evidence, trial counsel failed to go further and ask the trial court to reconsider the admissibility of the excluded testimony. (See People v. Maury (2003) 30 Cal.4th 342, 414 [an incomplete proffer of the admissibility of evidence puts a defendant in no position to assign error to a trial courts ruling].)

Having failed to have timely proffered the issue on a proper theory, on appeal, the issue is waived. Furthermore, during his testimony, Rodriguez covered the same ground by simply denying the rape and claiming that he did not attend Montess party.

A criminal defendant is not denied his right to present a defense whenever critical evidence favorable to him is excluded. (Montana v. Egelhoff (1996) 518 U.S. 37, 53.) Although the complete exclusion of evidence establishing a defense may be a constitutional violation, the exclusion of defense evidence on minor or subsidiary points is not. (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; accord, People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) In this case, the trial courts rulings were proper under the California Evidence Code. Furthermore, the impact of the excluded evidence on the issues in the case was negligible, and the exclusions fail to support a conclusion that defendant was denied his right to present a complete defense.

3. Cumulative Error

Defendant further contends that cumulative errors in the trial courts evidentiary rulings compel a reversal. This contention also fails. We find no error; thus, there is no cumulative error to provide the predicate for a due process claim; and the claim accordingly fails. (See People v. Robinson (2005) 37 Cal.4th 592, 637.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, P. J.

BOREN

We concur:

____________________, J. ____________________, J.

DOI TODD ASHMANN-GERST

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] K.H. testified with the assistance of a Spanish interpreter.

[3] The nurse specialist took photographs of the fresh cuts on K.H.s wrists and had K.H. examined by a psychiatrist because of the suicide attempt. After the psychiatrists examination, the psychiatrist permitted K.H. to go home. K.H.s pajama bottoms and panties were sent out for testing. The forensic chemist was unable to find any semen on the clothing for DNA testing.

[4] The trial court admitted one letter, exhibit No. C-1, only insofar as it read, as follows: Juan and me been together through our ups and down. But I really know what split our love up. I say to myself all the time I need to stop wishing for the past as it was not ment [sic] to be I have to let my baby go, but it never seems to happen. Im clicked on him. I wish ALEX would take me to meet NONO to see wuzz up so I can try my VERYYYYYYYYYYYYY [sic] best to forget Juan. The trial court also admitted the portion of the letter that was in handwriting, which said: Im missing my baby (Juan) but hopefuly [sic] soon NONO. It admitted another handwritten letter, exhibit No. C-2, which said the following: I WANT 2C NONO! [] TELL HIM 2 COME PICK US UP4 LUNCH.

[5] During final argument, without any objection, trial counsel was permitted to argue that K.H. was a liar and mentally . . .  ill. Trial counsel told the jury that notwithstanding the prosecutors efforts to prevent Rodriguez from discovering information about K.H.s mental state during K.H.s examination, the mother had disclosed that K.H. was under continuous medical care and treatment, providing them with even the doctors name and the name of the clinic. At length, trial counsel argued the weaknesses in the identity evidence and the inconsistencies between K.H.s testimony and that of C.A. and the other defense witnesses. Rodriquezs trial counsel closed his argument by asserting that the jury was being asked to believe a disturbed 15-year-old girl with suicidal tendencies, instead of Rodriguez.

[6] Article I, section 28, subdivision (d) of the California Constitution provides as follows: Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.

[7] Defendant does not explain whether he attempted during pretrial discovery to obtain nonprivileged and privileged information about K.H.s psychiatric history. (See People v. Gurule, supra, 28 Cal.4th at pp. 593-596.)