P. v. Noriega

Filed 8/21/07 P. v. Noriega CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.

J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On March 21, 2005, the Fresno County District Attorney filed a 12 count information in superior court charging appellant Joe Angel Noriega with multiple felonies and multiple attendant special allegations.

On April 12, 2005, appellant was arraigned, pleaded not guilty to the substantive counts and denied the special allegations.

On July 28, 2006, the prosecution filed a first amended information charging appellant as follows:

Counts I and IIIforcible rape (Pen. Code,  261, subd. (a)(2)) with use of a deadly weapon ( 12022.3, subd. (a)) with enhanced penalties ( 667.61, subds. (a), (b)) for personal use of a dangerous weapon ( 667.61, subd. (e)(4)) and multiple victims ( 667.61, subd. (e)(5));

Count IIforcible oral copulation (Pen. Code,  288a, subd. (c)(2)) with use of a deadly weapon ( 12022.3, subd. (a)) with enhanced penalties ( 667.61, subds. (a), (b)) for personal use of a dangerous weapon ( 667.61, subd. (e)(4)) and multiple victims ( 667.61, subd. (e)(5));

Count IVsecond degree robbery (Pen. Code,  211) with personal use of a deadly and dangerous weapon ( 12022, subd. (b)(1));

Count Vassault with a deadly weapon (Pen. Code,  245, subd. (a)(1)); and

Counts VI and VIIforcible rape (Pen. Code,  261, subd. (a)(2)) with enhanced penalties ( 667.61, subds. (a), (b)) for personal use of a dangerous weapon ( 667.61, subd. (e)(4)) and multiple victims ( 667.61, subd. (e)(5)).

Also on July 28, 2006, appellant was arraigned on the amended information. Additionally on this date, appellant waived his right to a jury trial as to all substantive charges and special allegations contained in the first amended complaint and trial commenced before the court sitting without a jury.

On August 4, 2006, the court found appellant guilty of the substantive counts as charged and found all of the special allegations to be true.

On August 31, 2006, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to a total term of 55 years to life in state prison. The court imposed the term of 25 years to life on count I (forcible rape with use of a deadly weapon) and identical concurrent terms on count II (forcible oral copulation with a deadly weapon) and count III (forcible rape with a deadly weapon). The court imposed a concurrent upper term of five years on count IV (second degree robbery) with a concurrent one-year enhancement for the related weapon-use allegation. The court also imposed a concurrent four-year term on count V (assault with a deadly weapon). The court imposed terms of 15 years to life on counts VI and VII (forcible rape). The court imposed a $10,000 restitution fine (Pen. Code,  1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and ordered appellant to submit to DNA and AIDS testing ( 296, 1202.1) and to register as a sexual offender ( 290).

On September 1, 2006, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Facts Underlying the Offenses against I.P.

At 11:00 a.m. on August 25, 2004, 18-year-old I.P. was sitting at a bus stop near the Manchester Center shopping mall in central Fresno. Appellant sat down next to her and began a conversation. Appellant said he had just ridden on the bus she had been on earlier and that he was a student at Fresno City College (FCC). Appellant showed a drop/add form from FCC bearing the handwritten given name Angel and the surname of either Ramirez or Martinez. Appellant asked I.P. whether she wanted to buy some weed (marijuana) and I.P. declined. Appellant said he had some weed but she never saw any in his possession. I.P. was new to Fresno and had never ridden the bus before that day. Appellant offered to show her the location of the stop for the next bus she needed to take.

Appellant and I.P. left the bus bench and began walking. She accompanied appellant because he offered to show her where to catch the correct bus. On cross-examination, she initially testified she also accompanied him because he offered her marijuana. However, moments later she said she did not want any marijuana from appellant. They walked along the edge of a canal bank for about five minutes. At one point, they stopped walking and had a conversation. I.P. said she had a strong feeling something was going to happen. Appellant suddenly grabbed her by the right arm and threw her into a small, fenced area behind an apartment complex. He then demanded her money, took off her backpack, and threw the contents of the pack around. Appellant looked in her purse and wallet but found only a dollar or two.

I.P. began to fight back and resist appellant because she did not have any money to give him. Appellant hit her in the face, forehead, and nose multiple times with his fist. I.P. punched appellant back in an effort to escape. He threw her to the ground or knocked her to the ground with a punch. I.P. and appellant struggled on the ground until he pulled out a red-handled knife and she stopped resisting. I.P. later testified that appellant produced the knife just before he inserted his penis inside her vagina.

Appellant told I.P. to get off of the ground and to remove her pants. She pulled her blue jeans down to her ankles and knees. Appellant crouched on his knees in front of her, ripped off her undergarments, and masturbated to gain an erection.^[1] Appellant climbed on top of I.P., pulled her legs apart, inserted his penis into her vagina, and engaged in nonconsensual sexual intercourse with I.P. for at least five minutes. Appellant threatened to shank I.P. if she did not close her eyes. She complied and kept asking appellant if he was going to kill her. I.P. testified she thought her life was over at the time of the incident. Appellant told her that she better shut up because her parents were going to see her dead in a ditch on the morning news. At one point, I.P. asked whether appellant was going to kill her and appellant replied by saying he was not going to shank her.

Appellant eventually removed his penis from I.P.s vagina and told her to give him oral sex. She complied but gagged on appellants penis. Appellant then reinserted his penis into her vagina and had sexual intercourse with her for another five to 10 minutes. During sexual intercourse, appellant held her down by keeping the knife at her throat. She believed appellant partially ejaculated in her vagina and partially on her shirt during the second penetration. She thought there was a spot of semen on her shirt.

When appellant finished assaulting I.P., he allowed her to get up and she pulled up her pants. He helped her gather the contents of her purse that had been thrown around. However, he took her Social Security and California Identification cards and said if she went to the police, he knew where she lived and he would come to kill her. I.P. made her way to a nearby AT&T store and used a telephone to summon a friend. I.P. then went to Saint Agnes Medical Center where medical personnel examined her, collected semen samples from her body, and took her clothing for analysis.

Sexual assault nurse Dina Wells examined I.P. on the evening of the offenses and documented bruises to her arms and back, dirt and redness of the skin on her back, and bruises along the hairline of her forehead. She also noted petechia (pinpoint bruises) on the back of her throat, dirt in her cervix, and tenderness in her vagina.

As a result of the sexual encounter with appellant, I.P. suffered bruises to her arms, bruises and swelling to her forehead, bumps on her head, black-and-blue eyes, and scratches to her back. She could not brush her hair because of soreness and swelling. She believed that appellant may have pulled her hair at some point. A partially eaten McDonalds chicken sandwich was among the many things appellant threw from I.P.s purse. Police officers later found the sandwich at the scene.

Facts Underlying the Offenses against A.N.

On the afternoon of September 22, 2004, 17-year-old A.N. was talking to her boyfriend on a pay telephone while waiting for a bus. The phone was located near the bus stop at Palm and McKinley Avenues in Fresno. The bus arrived and she ran to it, but the bus departed before she could get on. She walked back to the pay telephone and called her boyfriend again. While she was on the telephone, appellant approached A.N. and asked her the time. At first she waved him off and completed her call. When the call was done, A.N. told appellant the time and they began a conversation.

Appellant asked A.N. for her name and whether she wanted to smoke some weed. At trial she could not recall her response but denied saying she wanted to smoke weed. Appellant told A.N. he was going to Fresno State or FCC. He told A.N. she was beautiful, that she should be a model, and that he was getting paid for attending school. At one point, he told A.N. his name was Jokey. A.N. began walking with appellant down McKinley Avenue toward the intersection with Fruit, where there was another bus stop. Appellant walked with A.N. at first but then trailed behind her after she decided to walk separately.

A.N. eventually turned into an alley off of McKinley Avenue to get away from appellant. When she was almost halfway down the alley, appellant swung A.N. by the arm from behind and threw her to the ground. She ended up on her back and appellant kneeled on top of her. He unbuttoned his pants, forcibly took her jeans off or down below her buttocks, and pulled her underwear down. Appellant touched her breasts, masturbated, and rubbed himself on her body. He then got on top of A.N.s body, put his penis inside her vagina, and had nonconsensual sexual intercourse with her. A.N. did not know how long the intercourse lasted or whether appellant ejaculated. She was crying at the time. At one point during the sexual activity, a bicyclist passed by at the end of the alley. A.N. looked at the person and appellant asked whether she really thought they were going to see or hear her.

After engaging in intercourse, appellant got up, A.N. pulled up her undergarments and pants, and she got to her feet. At this time, she grabbed onto appellants shirt, reached into his pocket, and tried to grab something bearing his name for evidence. He called her a bitch, told her he would hit her, and said she was stupid. As appellant started to leave the alley, A.N. said she had a cell phone and would be calling the police. Appellant then ran away from the scene.

A.N. went to a nearby 7-Eleven store and used a pay telephone to call her boyfriend. A store attendant asked whether she was all right and A.N. said she had been attacked. A.N.s boyfriend arranged for a cousin to pick her up and take her to his uncles home. When the uncle asked what had happened, A.N. explained the sequence of events and he contacted the police. She did not want to tell what had happened because she did not want her mother to find out. Although she was embarrassed and nervous, she ultimately told officers what had happened. The officers took A.N. to University Medical Center for examination. Nurse Cynthia Felix examined A.N. and collected semen samples, blood, swabs, fingernail scrapings, and pubic hair from her body. Medical personnel also took A.N.s clothing for further analysis. Felix observed redness on A.N.s cervix at the time of the examination.

A.N. admitted serving time in juvenile hall in 2005 for being an accessory after the fact to a felony. On cross-examination, she denied that appellant offered her marijuana to smoke and that was the reason they walked to the alley. She also denied that appellant showed her a bottle of Extasy pills and offered to exchange those pills for sex.

Facts Underlying the Offenses Against D.B.

On the afternoon of November 17, 2004, 14-year-old D.B. took the bus to Manchester Center and then began walking to her mothers home on Palm and Dakota Avenues. Appellant approached her near a McDonalds restaurant and asked her name. D.B. said she did not want to talk to him, ignored him, and continued walking. Appellant was persistent, told her she was pretty, and asked whether she had a boyfriend. He also asked where she was going. D.B. told appellant she was going to her mothers house. He asked to walk with her but she continued walking and ignored him. Appellant also asked whether she smoked weed. When D.B. said yes, appellant offered her some and said his name was Angel.

D.B. began to speak with appellant after he offered her the marijuana. When he asked whether she wanted to get high, she replied in the affirmative. Appellant said he lived nearby and attended FCC. As they walked on Blackstone Avenue, appellant told D.B. he knew of a shortcut to her mothers house. They walked down some small streets in the direction of a nearby canal. At the canal, they crossed over and walked along the bank to a place where D.B. believed they could smoke marijuana. This was apparently the same place where appellant had his sexual encounter with I.P.

D.B. said an old bicycle was located in a fenced area. Appellant asked her to get the bicycle for him. When she complied, he pushed her back in the fenced area and told her that he would hurt her if she screamed. D.B. nevertheless screamed and appellant grabbed her arm, pushed her to the ground, and held his hand over her mouth. He also hit her in the face with his hand. Appellant told her he had a gun but she did not see a weapon. Appellant was carrying a book bag and he reached into the bag as if he had a gun stored there.

Appellant forcibly held D.B. on the ground. He unbuttoned and unzipped her pants and pulled them down below her knees. He said he had done this to two other women. D.B. told appellant she was only 12 years old and he acted as if he did not care. He told D.B. that meant she must be tight. Appellant pulled down his pants and masturbated to create an erection. He then inserted his penis into her vagina and had nonconsensual sexual intercourse with her. While engaged in intercourse, appellant pulled down D.B.s shirt and began kissing and licking her breasts. The sexual activity lasted between 20 and 30 minutes and D.B. scratched appellants wrists and arms. When appellant finished he wiped her vagina with his shirt. He ejaculated at some point but she was unsure whether he ejaculated inside of her. D.B. told an examining nurse that she thought he ejaculated on the surface between her legs. D.B. testified she saw a wet substance on appellants shirt after the sexual conduct.

Appellant told D.B. that if she told anybody about what happened, he knew the area where she lived. Appellant took her shoes, underwear, and jeans and threw them over a fence in an apartment yard. He then left the scene on the bicycle. D.B. kicked down some fence boards, retrieved her clothes, and dressed in her outer garments. She put her underwear in her pocket.

During the encounter, some glitter, makeup, and cocoa butter fell out of her jacket pocket. She left behind some stockings that she had used to stuff her shoes. Police personnel later photographed these items in the apartment yard near the scene of the crime. D.B. left the scene and made her way back toward her mothers house. She ran into some friends as she walked near some railroad tracks. Her friends asked what was wrong and D.B. told them what had happened. She got in her friends car and they drove around to look for appellant. When they were unable to find appellant, the friends took D.B. to her mothers apartment and they summoned police.

The police contacted D.B. and she was crying and shaking. She had dirt on her clothing and dirt, grass, and other debris in her hair. She had scratches on the top of her hands and on her face, nose, and chin. Officers took D.B. back to the crime scene and observed the items that she had left there. They next took her to University Medical Center for examination. Medical personnel collected semen samples from her body and took her clothing for further analysis. A medical examination revealed that D.B. had abrasions on her back, lower shoulder blade area, knees, and knuckles.

Valerie Caporale, a sexual assault nurse at University Medical Center, examined D.B. and said she was tearful but cooperative. Caporale said vaginal swabs and fingernail scrapings were taken from D.B.

Additional Evidence

I.P., D.B., and A.N. identified appellant as their assailant after viewing a photographic lineup prepared by the Fresno Police Department.

Laura Bailey-Van Houten, a criminalist with the California Department of Justice Regional Crime Laboratory in Fresno, testified about DNA evidence. She said blood was obtained from appellant for such analysis. DNA was obtained from I.P.s clothing for purposes of comparison. According to Bailey-Van Houten, appellant could not be eliminated as the source of sperm found on I.P.s clothing. Bailey-Van Houten tested nine different areas of DNA and appellants DNA shared the same profile in every instance with the sperm found on I.P.s clothing. According to Bailey-Van Houten, the chance of a random occurrence of that precise DNA profile in the Hispanic population was one in 520 billion.

Bailey-Van Houten also said appellants DNA profile was consistent with sperm samples taken from D.B.s body and clothing. Bailey-Van Houten said there were two different contributors to the sperm specimens found on the crotch area of D.B.s jeans. D.B. advised authorities that she had borrowed the jeans from an older cousin. Bailey-Van Houten referred to the sperm contributors as the major contributor and the minor contributor. According to Bailey-Van Houten, the major contributor was consistent with appellants DNA. Bailey-Van Houten said appellants DNA profile matched sperm samples taken from A.N. in 15 areas. In the case of I.P., the genetic markers in the sperm were expected to randomly occur in one in approximately 520 billion Hispanics. In the cases of D.B. and A.N., the genetic markers in the sperm were expected to randomly occur in one in 180 quadrillion Hispanics.

Fresno police searched appellants apartment and found a book bag. The bag contained a Fresno bus schedule and FCC paperwork bearing appellants name. D.B. said the book bag looked exactly like the one appellant wore on his shoulder on the day he assaulted her. D.B. also identified a puffy, black jacket seized from appellants apartment and said it was similar to the one he wore on the day of the incident.

A.N. testified the seized book bag looked like the one appellant was carrying on the day of their encounter. She told officers the book bag had an envelope on it bearing the word north. Officers examined the bag and found a tag on the back bearing the word Northwest.

During an interview with Fresno Police Detective Pam Kobashi, appellant denied knowing or having nonconsensual sexual intercourse with I.P., D.B., and A.N.. He maintained to officers that his DNA would not be found on the three girls. Appellant did not testify during the defense case. At closing argument, despite appellants statements to Detective Kobashi, defense counsel argued that the circumstantial and physical evidence was just as consistent with consensual sex as with forcible rape.

DISCUSSION

I.

PRECLUSION OF CROSS-EXAMINATION OF A.N. REGARDING THE

TRUTHFULNESS OF HER STATEMENTS TO POLICE IN AN UNRELATED

CRIMINAL MATTER

Appellant contends the trial court committed prejudicial error, abused its discretion, and denied his right to state and federal due process of law by precluding defense cross-examination as to whether A.N. lied to police in another case.

On direct examination of A.N. during the Peoples case-in-chief, the prosecutor elicited the fact that A.N. was the subject of a juvenile adjudication after her encounter with appellant. She testified that during the juvenile proceeding she had been adjudicated an accessory after the fact to a felony. On cross-examination, the following exchange occurred:

Q [by Deputy Public Defender Nancy Schultz] Okay. Now, Mr. MacMichael [deputy district attorney] asked you some questions about your juvenile adjudication in 2005?

A Yes.

Q That was for shooting, was it not?

A Yes.

Q So what you were convicted of was being an accessory to a shooting; is that right?

A Yes.

Q And when you were first questioned by the police about that, did you deny any involvement?

Mr. MACMICHAEL: Objection, relevance.

MS. SCHULTZ: It goes to her credibility, your Honor.

MR. MACMICHAEL: Its already been the adjudication has already been put into evidence, and I dont think any further details are relevant.

MS. SCHULTZ: Judge, if I could be heard at a sidebar possibly?

THE COURT: Yes. Give me just a moment.

(Sidebar discussion held, not reported.)

THE COURT: All right. The Courts going to rule on the objection that was raised to the question of whether the question that was raised by Ms. Schultz was whether the witness had been untruthful with law enforcement in a in the case which she acknowledged having had a juvenile conviction. With respect to the objection of the People, the object is sustained under the authority of Evidence Code Section 787 and 352, the Court having weighed matters in determining that the use of time exceeds any probative value.

MS. SCHULTZ: Thank you, your Honor.

Q [A.N.], are you still on juvenile probation as a result of that conviction?

MR. MACMICHAEL: Objection, relevance.

THE COURT: Overruled, under authority of Davis versus Alaska.

THE WITNESS: Yes.

MS. SCHULTZ: Q And for how long will you continue to be on probation?

MR. MACMICHAEL: Same objection.

THE COURT: Sustained.

Appellant now contends the evidence was relevant, Evidence Code section 787 (governing specific instances of conduct to attack or support witness credibility) was inapplicable in a criminal case, the court improperly excluded the evidence under section 352, and that exclusion of evidence denied appellant his right to effective cross-examination and confrontation of the witness. He argues in pertinent part:

The excluded evidence was relevant to [A.N.s] credibility in the general sense that it showed a readiness to lie to those in positions of authority. This would include matters such as whether she had engaged in consensual sex. It also would have specifically shown that she was willing to lie about her own involvement in criminal activity. If she was willing to lie about her involvement in crime, there is a strong inference she was willing to lie about other criminal activity, such as unlawful drug use. The theory of the defense was that appellant had consensual sex with all of the females in exchange for drugs, and when he did not give them drugs they cried rape. The excluded evidence would have substantially strengthened the defense theory.

And there is a reasonable chance, more than a mere abstract possibility, that had the evidence been admitted, the trial court would have found appellant not guilty of raping [A.N.]. Her participation as an accessory after the fact to a shooting demonstrated conduct involving moral turpitude, raising serious questions as to her credibility. In addition, her testimony had certain incredible aspects to it. She testified she turned into an alley off McKinley, a major boulevard, to get away from appellant. If she was frightened of appellant, this was hardly a place of refuge. It was an inherently unbelievable explanation. Going into a secluded alley is far more consistent with the defense theory that there was consensual sex in exchange for drugs.

The manner in which [A.N.] testified the sexual intercourse with appellant took place is also inherently incredible. She claimed appellant was able to penetrate her vagina with his penis while her pants were just below or under her buttocks. At first she testified she did not have to open her knees in order for appellant to enter her. Then she testified she assumed he used his knees to spread her legs apart, but really did not remember. It would have been impossible for appellant to have entered her as she claimed with her pants under or just below her buttocks. DNA evidence showed appellants sperm in her vagina. While sexual activity obviously took place, it did not, and could not have, taken place as she testified.

Given the serious questions concerning [A.N.s] credibility, had the excluded evidence that she had lied to police been admitted, there is a reasonable probability of a more favorable verdict. For the same reasons, the error is not harmless beyond a reasonable doubt.

Evidence Code section 352 states:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Evidence Code section 787 states:

Subject to Section 788 [governing prior felony convictions for purposes of attacking the credibility of a witness], evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

Evidence Code section 354 states:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:

(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;

(b) The rulings of the court made compliance with subdivision (a) futile; or

(c) The evidence was sought by questions asked during cross-examination or recross-examination.

As a general matter, the application of the ordinary rules of evidence does not impermissibly infringe on a defendants right to present a defense. 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. If the trial court missteps, the trial courts ruling is merely an error of law; there is no refusal to allow a defendant to present a defense, but only a rejection of some evidence concerning the defense. Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)

A trial court has the inherent discretion and duty to control proceedings and to exclude evidence it deems to necessitate an undue consumption of time. (Evid. Code,  352; Pen. Code,  1044.) We review a claim of the erroneous exclusion of evidence only to determine whether the exclusion led to a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316; Evid. Code, 354.) A miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836; accord People v. Breverman (1998) 19 Cal.4th 142, 149; People v. Callahan (1999) 74 Cal.App.4th 356, 363.)

Relevant evidence includes evidence relevant to the credibility of a witness having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210; People v. Harrison (2005) 35 Cal.4th 208, 229.) The credibility of a witness may be attacked or supported by any party, including the party calling him. (Evid. Code,  785.) In determining the credibility of a witness, the trier of fact may consider any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing. Such matter includes the witnesss character for honesty or veracity or their opposites. (Evid. Code,  780.)

Appellant contends:

[A.N.s] lying to police about her own wrongdoing would have dovetailed perfectly with counsels contentions that the three females in this case had consensual sex in exchange for drugs. In addition to bearing on [A.N.s] general credibility, if there had been evidence she had lied to police about her involvement in the prior shooting, the trial court could have reasonably concluded that she was also lying about having consensual sex with appellant. The court may reasonably have believed she was lying at least in part because she did not want to admit she was hoping to use, or had used, unlawful drugs. The ruling thus denied appellant his federal due process right to present favorable evidence on his behalf.

Evidence Code section 352 allows broad latitude for exclusion of impeachment in individual cases. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. When exercising its discretion under section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. (People v. Wheeler (1992) 4 Cal.4th 284, 296.) The court must consider the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relative to the main or only a collateral issue, and the necessity of the evidence to the proponents case as well as the reasons recited in section 352 for exclusion. (People v. Houston (2005) 130 Cal.App.4th 279, 304.)

For example, the past lies of a party can be relevant to credibility issues in a murder case. (People v. Houston, supra, 130 Cal.App.4th at p. 305.) In the instant case, however, we are not addressing past statements to police. Rather, we are addressing statements purportedly made to law enforcement officers in an unrelated matter occurring after the date of the charged offense. Appellant has not cited and we have been unable to find any authority addressing the admissibility of such after-the-fact credibility evidence. Appellant submits the excluded evidence was relevant to A.N.s credibility in the general sense that it showed a readiness to lie to those in positions of authority. Where a trial courts ruling did not constitute a refusal to allow a defendant to present a defense, but merely rejected certain evidence concerning the defense, the ruling does not constitute a violation of due process. The appropriate standard of review is whether it is reasonably probable that admission of the evidence would have resulted in a verdict more favorable to a defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)

As noted above, after the alleged offenses, officers took A.N. to University Medical Center for examination. Nurse Cynthia Felix examined A.N. and collected semen samples, blood, swabs, fingernail scrapings, and pubic hair from her body. Medical personnel also took A.N.s clothing for further analysis. Felix observed erythema or redness on A.N.s cervix at the time of the examination and found a whitish discharge at the cervix, in the vagina. A.N. told Felix her vagina had been twice penetrated by a penis. Criminalist Laura Bailey-Van Houten said appellants DNA profile matched sperm samples taken from A.N. in 15 areas. In the case of A.N., the genetic markers in the sperm were expected to randomly occur in one in 180 quadrillion Hispanics. Detective Pam Kobashi testified she interviewed appellant at Fresno Police Department headquarters on November 21, 2004. Kobashi asked appellant if he ever had sexual intercourse with A.N., I.P., or D.B. She also asked several times whether he had consensual sex with the three girls. According to Kobashi, He [appellant] responded in the three and a half years prior he hadnt had sex with anybody consensually or non-consensually, other than his wife.

In view of the strong DNA evidence and appellants denial of sexual conduct to Detective Kobashi, it is not reasonably probable that admission of the credibility evidence arising from the subsequent juvenile adjudication would have resulted in a verdict more favorable to appellant. Exclusion of the credibility evidence as to A.N. does not require reversal in the instant case.

II.

PRECLUSION OF CROSS-EXAMINATION OF D.B. REGARDING THE

EXTENT OF HER PRIOR MARIJUANA USAGE

Appellant contends the trial court committed reversibleerror by precluding cross-examination of D.B. concerning the extent of her prior marijuana use.

The following exchange occurred on direct examination of D.B. during the Peoples case-in-chief:

Q [by Deputy District Attorney MacMichael] Okay. And then what happened?

A [by D.B.] Well, we well, after that he asked if I smoked weed, and I said, well, yes, I smoke weed and he said -- he offered me some, so we took off to [] ... []

Q When you said weed, what do you mean by weed?

A Well, pot, drugs.

Q Okay. So pot, weed, whats the actual name for that?

A Marijuana. [] []

Q Okay. So then, so after that, after he offered you that, did you start talking to him then?

A Umm, I guess, yeah, you could say that.

Q Okay. And then did he were you afraid of him at that point?

A Not so much, but I just he just talked to me about that he lived nearby, and just simple questions you would ask people that you barely meet. [] ... []

Q Okay. And so were you walking on streets at this time?

A Yes. We were still walking on Blackstone well, we were cutting when he was asking me these questions we were still walking on Blackstone, and then finally made a turn towards the canal. [] ... []

Q Okay. When you got on the other side [of the canal], what did you do?

A We walked while he said that theres a little area where we can probably smoke at, and then we went towards where he raped me at.

The following exchange occurred on cross-examination of D.B.:

Q [by Deputy Public Defender Schultz] And then at some point he [appellant] asked if you wanted to get high; is that right?

A [by D.B.] Yes.

Q And then he told you that he had some marijuana with him; isnt that right?

A Yes.

Q And so you went with him to smoke the marijuana; is that right?

A Umm, I was he really just said that there was a shortcut. He said there was a shortcut, so might as well take the shortcut, and we were going to do that.

Q And you just

A Im not lying. Im just telling you what.

Q I understand. You told Officer Garrison that this man said Ive got some marijuana, do you want to get high, and you said yes, and thats when you went with him?

A Yeah.

Q Okay. So the two of you walked to a place that he said he knew; is that right?

A Not towards a particular place, just towards my house. We were walking to my house.

Q Along the canal?

A Yes. He just said you can cut through there, basically, and just smoke the weed on the canal while we were walking.

Q And did you in fact light up?

A No, I didnt.

Q You didnt?

A Huh-uh.

Q You didnt. All right. [] Before that date in November, November 17th, on how many occasions had you smoked marijuana?

A I havent

MR. MACMICHAEL: Objection.

THE COURT: Sustained.

On appeal, appellant maintains that evidence of D.B.s prior marijuana usage was not excludable under Evidence Code sections 1101, 787, and 352 and he asserts that [r]elevant exculpatory evidence may not be excluded based on principles of legal relevancy under state law such as Evidence Code section 352. He specifically contends:

The defense theory of the case was that appellant had consensual sex with all of the females involved in exchange for drugs. When he failed to produce the drugs, they cried rape. As in the case with the other complaining females, whether sex was consensual or forced with [D.B.] was completely dependent on [D.B.s] testimony. Her credibility was thus critical.

Although [D.B.] was 14 years old at the time, there is a strong inference that she was no stranger to sex. Sperm from another donor was found on the crotch of the jeans she was wearing. If the court chose to draw the inference that [D.B.] had had sex with at least one other male, her accompanying appellant not only to get high on marijuana but also to have sex in exchange for the drug is a plausible scenario. Had [D.B.] testified that her marijuana use was frequent, it would have shown that marijuana was something she particularly desiredsomething she may have craved and was quite possibly willing to do whatever was necessary to obtain, including having sex with a stranger. And when she did not get it from appellant after they had sex, the court could reasonably have found that she became extremely angry because she had desperately wanted to get high. [D.B.] and her friends driving around looking for appellant after the incident is just as consistent with being angry at him for not coming through on his promise to give her drugs in exchange for sex as it is for being angry at him for raping her.

... Had the excluded evidence been admitted, there is a reasonable chance, more than an abstract possibility, that the trial court would have issued a more favorable verdict in the [D.B] rape allegation. For the same reason, the error cannot be characterized as harmless beyond a reasonable doubt. (Fn. omitted.)

A trial courts ruling under Evidence Code section 352 is reviewed for abuse of discretion. To preserve an alleged error for appeal, an offer of proof must inform the trial court of the purpose and relevance of the excluded evidence. This is in accord with the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 108.) An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. To accomplish these purposes an offer of proof must be specific and must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 53.)

A review of the record does not reveal an offer of proof on the part of the defense. Assuming arguendo preservation of the alleged error, it is not reasonably probable a result more favorable to the appellant would have occurred. Valerie Caporale, a registered nurse and certified sexual assault forensic examiner, examined D.B. on November 17, 2004. Caporale said D.B. had scratches to her face and was tearful. D.B. had linear abrasions on her back and on the lower portion of her shoulder blade. She had other abrasions on her knees and her knuckles. D.B. had a scratch on the side of her face and on the side of her nose. Caporale swabbed some white mucus during the course of a pelvic exam of D.B. D.B. told Caporale that appellant choked her with his right hand, straddled her body, and digitally penetrated her. D.B. told Caporale that appellant threatened to shoot her and pushed her onto her back.

Criminalist Laura Bailey-Van Houten testified the crotch of the pants worn by D.B. bore DNA fluids from at least two sperm donors and she referred to them as the major donor and the minor donor. Bailey-Van Houten characterized appellant as a possible major contributor of the sperm sample found on D.B.s jeans based on an analysis of 15 genetic markers. Bailey-Van Houten said the major contributors genetic profile would randomly occur in only one in approximately 180 quadrillion Hispanics. Detective Pam Kobashi interviewed appellant on November 21, 2004. He specifically denied any knowledge of a rape on November 17, 2004, and said he was not responsible for that crime. Appellant also told Kobashi in the three and a half years prior he hadnt had sex with anybody consensually or non-consensually, other than his wife.

Despite appellants argument to the contrary, the record did not demonstrate that appellant actually offered D.B. some marijuana for sex. Rather, she told Officer Shawn Garrison that appellant said, Ive got some marijuana, do you want to get high[?] D.B. told Garrison that she answered appellants question in the affirmative but she never actually smoked marijuana while they were walking along the canal bank. From the foregoing medical and scientific evidence and appellants statements to Detective Kobashi, it is not reasonably probable a result more favorable to appellant would have occurred had the trial court allowed an extended inquiry into D.B.s alleged usage of marijuana.

III.

PRECLUSION OF CROSS-EXAMINATION OF I.P. REGARDING THE

EXTENT OF HER KNOWLEDGE OF CRYSTAL METHAMPHETAMINE

Appellant contends the trial court committed reversible error by precluding cross-examination of I.P. regarding her knowledge of crystal methamphetamine, which he characterizes as a vital matter relevant to her credibility, thereby excluding relevant favorable evidence on appellants behalf.

The following exchange occurred on cross-examination of I.P.:

Q [by Deputy Public Defender Schultz] And when you were interviewed by Officer Buller, you told him step-by-step what happened August 25th; is that correct?

A [by I.P.] Yes, I did.

Q And were you honest and truthful with him?

A Yes, I was.

Q And you were interviewed by Officer Buller at Saint Agnes; is that correct?

A Yes.

Q And within at the outside two hours of this incident?

A Yes.

Q And so your memory was fairly fresh at that time; is that correct?

A Yes.

Q Okay. Going back to the bus stop where you saw, where you first started talking to this man, do you remember telling Officer Buller that he said he asked you whether you were interested in buying or using some crystal meth?

A No.

Q Did you tell Officer Buller that he asked you if you wanted to buy any weed?

A Yes.

Q Was there ever any mention of crystal meth in your conversation with this man?

A No.

Q Do you know what crystal meth is?

A Yes.

Q And how do you know?

A Because I know what it is.

Q And how do you know is the question?

A Because Ive heard of it before.

Q Youve heard of it before?

A Correct.

Q Okay. Youve never seen it?

A No.

MR. MACMICHAEL: Judge, relevance.

THE COURT: Sustained.

MS. SCHULTZ: Goes to her knowledge, your Honor. Goes to her credibility.

THE COURT: Overruled Ill sustain the objection. Continue to sustain the objection.

Appellant contends:

The defense theory of the case was that appellant had consensual sex with all of the females involved in exchange for drugs. When he failed to produce the drugs, they cried rape. Although [I.P.] denied having sex in exchange for marijuana or crystal methamphetamine, numerous facts support a consensual sex defense. [I.P.] went with appellant knowing he had marijuana. She testified that he offered to sell her marijuana at the bus stop but she told him no. Since she only had a dollar or two, she was not in a position to buy it, or at least not much of it. If she wanted drugs, sex in exchange was certainly one way to overcome her lack of funds.

She later testified that appellant had offered to give her marijuana. That was the reason she went with him. Despite her inconsistent statements, her testimony is an implicit acknowledgement that she wanted drugs and expected to receive some.

Yet her testimony again changed. She testified a little later that she never wanted any weed. She denied that appellant had said he had some weed and would be happy to give her some. This appears to contradict her testimony that she went with appellant because he offered to give her marijuana. Whatever the truth was, her changing story suggests a young woman who is either unwilling or unable to tell the truth. [] ... []

And against this backdrop, the excluded evidence that [I.P.] claimed she had never seen crystal meth could have made a difference if it had been admitted. This was a young woman who was obviously interested in drugs. At one point she even admitted she went with appellant because he offered her drugs. There was thus a strong inference she was a drug user. The extent to which she used drugs was in issue. She knew what crystal meth was, but claimed she had never seen it. It is extremely doubtful that someone willing to go with a stranger in the expectation of receiving marijuana would have never seen crystal methamphetamine.... [] ... []

Had the trial court considered the excluded evidence, there is a reasonable chance, more than an abstract probability, that it would have determined that the entire scenario was simply a case of sex for drugs that had gone sour when appellant failed to keep up his end [I.P.] became angry, decided to get even and reported that he had forcibly had sex with her and robbed her. And for the same reasons there is a reasonable probability that the evidence had it been admitted would have resulted in more favorable verdicts ....

Dina Wells, a nurse and sexual assault forensic examiner, testified she worked at Saint Agnes Medical Center and collected evidence from I.P. on August 25, 2004. I.P. reported she had been sexually assaulted. Wells documented bruises on her back, redness in the middle of her back, and bruises to her forehead in her hairline. Wells also noted petechia or little pinpoint bruises to the back of I.P.s throat. Wells examined the innerfolds between I.P.s vagina and legs and noted the presence of dirt there and in the cervix. According to Wells, I.P. complained of a lot a discomfort during the vaginal examination and Wells noted redness in the posterior fourchette, the vaginal pool underneath the cervix. Wells took oral and vaginal swabs from I.P. and bagged her clothing and gave it to law enforcement.

Criminalist Laura Bailey-Van Houten later analyzed I.P.s shirt for the presence of DNA. Several white stains contained nucleated E-cells, epithelial cells, and sperm cells. Bailey-Van Houten examined and compared a blood sample from appellant with the stains on I.P.s shirt. She testified: ... I tested nine different areas of DNA, and in every area Suspect Noriega shares the same profile as the sperm. She also testified the genetic profile obtained from the sperm in I.P.s shirt was expected to randomly occur in one in approximately 520 billion Hispanics.

Once again, Detective Pam Kobashi interviewed appellant on November 21, 2004, at the Fresno Police Department headquarters. When she brought up the three alleged rapes of August 25, September 22, and November 17, 2004, appellant said he had no knowledge of and was not responsible for any of those crimes. He denied knowing I.P. and told Kobashi in the three and a half years prior he hadnt had sex with anybody consensually or non-consensually, other than his wife.

Here, I.P. initially testified that appellant offered to give her marijuana and she went with him because he offered to give her marijuana. The court was well aware of this testimony and further aware that I.P. knew about crystal methamphetamine. In our view it is nonetheless not reasonably probable a result more favorable to appellant would have occurred had the court allowed an extended inquiry into the basis for I.P.s knowledge of crystal methamphetamine. From the medical and DNA evidence, the court could reasonably conclude that appellant engaged in forcible sexual intercourse with I.P. on August 25, 2004. Appellants counsel argued at trial that any intercourse was consensual, stating: They got burned. They were promised drugs for sex, they had sex with him, consensual sex, he never produced any drugs. There is one big motive for crying rape. However, this argument ran contrary to appellants statement to Detective Kobashi that he had not engaged in consensual or nonconsensual sexual intercourse with anyone other than his wife during the three years preceding their interview.

Even if the court had allowed extensive inquiry into the basis for I.P.s knowledge of crystal methamphetamine, it is not reasonably probable a result more favorable to appellant would have occurred given the strong direct and circumstantial medical and DNA evidence presented at trial. Reversal for alleged evidentiary error is not required.

DISPOSITION

The judgment is affirmed.

_____________________

HARRIS, J.

WE CONCUR:

________________________

VARTABEDIAN, Acting P.J.

_____________________

DAWSON, J.

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Analysis and review provided by San Diego County Property line attorney.

^[1]I.P. told an investigating officer that appellant cut off her underwear with a knife and that the underwear stayed around her waist during the entire incident. She said appellant inserted his penis into her vagina through an open space in the underwear.