PEOPLE v. VANG








Filed 3/6/09






CERTIFIED FOR PARTIAL PUBLICATION^*



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. CHUE VANG, Defendant and Appellant.

C058020 (Super. Ct. No. 05F11321)

STORY CONTINUE FROM PART I….

Thus, we find that defendant’s contention was preserved for appeal. On the merits, however, it fails.
When a witness’s competence is challenged, the trial court must determine competence as a preliminary fact before allowing the witness to testify. (Evid. Code, § 405; People v. Liddicoat (1981) 120 Cal.App.3d 512, 514-515.) As noted, the burden of proving incompetence rests on the challenger. (People v. Roberto V., supra, 93 Cal.App.4th at p. 1368.) The determination of the issue rests within the trial court’s sound discretion. (Ibid.) The trial court properly exercised its discretion here.
Although A. was relatively young and showed some difficulty (linguistic or otherwise) in understanding and answering questions, these are not sufficient grounds to find incompetence. Many witnesses younger than A. have been held competent to testify. (People v. Roberto V., supra, 93 Cal.App.4th at pp. 1368-1369, and cases cited.) And even if some questions at the hearing confused her, it became clear that A. understood the difference between the truth and a lie and her duty to tell the truth. Thereafter, she consistently testified that defendant and no one else assaulted her and supported her story with abundant circumstantial detail. Any inconsistencies or contradictions in her testimony went to credibility, not competence.
In short, the trial court’s ruling that A. was competent to testify did not deprive defendant of due process or a fair trial, and his assertion that the ruling deprived him of his right to confrontation is not meritorious. By permitting A. to testify and face cross-examination, the court ensured that defendant could confront his accuser. If this confrontation led A. into confusion or self-contradiction, that could only have helped defendant’s case.
II
Defendant contends the trial court erred prejudicially by refusing his request to modify the standard instruction on witnesses’ credibility. This contention lacks merit.
Background
The trial court proposed to give California Judicial Council Criminal Jury Instructions (CALCRIM) No. 226 (2006) as follows:
“You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin.^[[1]] You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“How well could the witness see, hear, or otherwise perceive the things about which the witness testified‌
“How well was the witness able to remember and describe what happened‌
“What was the witness’s behavior while testifying‌
“Did the witness understand the questions and answer them directly‌
“Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided‌
“What was the witness’s attitude about the case or about testifying‌
“Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony‌
“How reasonable is the testimony when you consider all the other evidence in the case‌
“Did other evidence prove or disprove any fact about which the witness testified‌
“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
“If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.
“If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (Italics added.)
At the instructions conference, defense counsel requested the last paragraph be modified to read: “If you decide that a witness deliberately lied or inaccurately testified about something significant in this case[,] you should consider not believing anything that witness says. Or[,] if you think the witness lied or inaccurately testified about some things[,] but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” (Italics added.) As authority for this modification (said to derive from Forecite), counsel alluded to federal cases but did not cite any.^[2]
After the prosecutor objected, the trial court refused the proposed modification, ruling that it clashed with the original paragraph’s emphasis on deliberate lying and that the rest of CALCRIM No. 226 sufficiently covered other kinds of inaccuracies. The court thereafter gave the jury CALCRIM No. 226 unmodified.
Analysis
Defendant contends that CALCRIM No. 226 as given did not fully and fairly inform the jury of his theory of the case: that A.’s testimony was incredible, not because she was deliberately lying but because “she did not fully understand the proceedings . . . or what it meant to tell the truth or tell a lie” or because she was “coached to tell a lie about [defendant].”^[3] We are not persuaded.
In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights. (People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148; People v. Martin (2000) 78 Cal.App.4th 1107, 1112.)
In essence, defendant contends that the last paragraph of CALCRIM No. 226 should be modified as proposed here whenever there is evidence that a witness might have testified inaccurately for reasons other than mendacity or bad faith. This appears to raise an issue of first impression.^[4] However, the paragraph of the instruction at issue generally corresponds to former CALJIC instruction No. 2.21.2 (witness willfully false; cf. CALJIC (Fall 2006 ed.) p. 53) and its predecessor, former CALJIC instruction No. 2.21, which have received ample judicial construction.^[5] Therefore we turn to case law construing the former instructions for guidance.
It is well settled that former CALJIC instruction No. 2.21.2 (and its predecessor, former CALJIC No. 2.21) correctly stated the law. (See, e.g., People v. Carey (2007) 41 Cal.4th 109, 130; People v. Beardslee (1991) 53 Cal.3d 68, 94; People v. Turner, supra, 50 Cal.3d 668, 698-699.)
The former instruction’s purpose was to “set[] out a commonsense principle for evaluating witness credibility.” (People v. Murillo (1996) 47 Cal.App.4th 1104, 1108.) Specifically, it told jurors that “if they [found] that a witness willfully lied in one material part of his testimony[] [t]hey [might] reject the whole testimony of such a witness, but they [were] not required to. They [might] nevertheless believe the remainder of the witness’s testimony if they [found] the probability of truth favor[ed] his testimony in other particulars.” (People v. Reyes (1987) 195 Cal.App.3d 957, 965.)
The last paragraph of CALCRIM No. 226 serves the same purpose as former CALJIC No. 2.21.2. Like the former instruction, it tells the jurors that if they find a witness lied about a material part of his testimony, they may but need not choose to disbelieve all of his testimony. Furthermore, if they find that though he willfully lied on one point he told the truth on others, his lie on the former point does not bar them from believing the rest. Thus, like former CALJIC No. 2.21.2, the last paragraph of CALCRIM No. 226 aims specifically, and only, to address deliberate lying on the stand.
Defendant’s proposed modification of CALCRIM No. 226 would have misstated the law. CALCRIM No. 226 allows the jury to disbelieve a witness who deliberately lies about something significant because experience has taught us that a deliberate liar cannot be trusted. The same is not true of a witness who is merely mistaken at some points in her testimony. Defendant cites no authority for the proposition that a witness’s mere inadvertent inaccuracy on any significant point should prompt a jury to disbelieve his entire testimony, which is plainly at odds with the earlier portion of CALCRIM No. 226, and we know of no such authority. Indeed, it is hard to see how any jury could ever decide any case if it thought it could accept only the testimony of witnesses who had committed no inaccuracies. This is particularly true of cases in which children are witnesses, because their use of language is not fully developed.
Furthermore, CALCRIM No. 226 addresses credibility questions other than deliberate lying in its earlier paragraphs, which generally correspond to two former CALJIC instructions: Nos. 2.20 (believability of witnesses) and 2.21.1 (discrepancies in testimony). (CALJIC (Fall 2006 ed.) pp. 48-49, 52.) As we shall explain, this portion of CALCRIM No. 226 sufficiently educated the jury on how to assess inaccuracies caused by anything other than mendacity.
Tracking former CALJIC No. 2.20, CALCRIM No. 226 begins with a list of factors other than deliberate lying which the jury should consider in weighing the credibility of every witness, including the witness’s capacity to perceive, remember, and describe events, his demeanor, his ability to understand and answer questions, his possible bias or prejudice (including that stemming from a personal relationship with someone involved in the case), his attitude about the case, any consistent or inconsistent past statements, and the reasonableness of his testimony in light of all the other evidence. Tracking former CALJIC No. 2.21.1, CALCRIM No. 226 then warns the jury against rejecting testimony merely because of inconsistencies or conflicts because witnesses frequently and innocently forget things or remember them differently from each other. In total, then, CALCRIM No. 226 -- prior to its final paragraph about deliberate lying -- covers every possible source of good faith inaccuracy in testimony and correctly informs the jury how to assess them.
Contrary to defendant’s view, therefore, his proposed modification was unnecessary to inform the jury how to weigh the possibility that A.’s testimony was inaccurate for any reason other than deliberate lying. The unmodified instruction plainly told the jury to consider whether A. could perceive, describe, and remember events correctly; whether she could clearly convey her version of events in response to questioning; whether her MDIC interview was inconsistent with her testimony; and whether her testimony was reasonable in light of all the other evidence. The instruction also alerted them to the possibility of improper influence from A.’s parents or anyone else personally involved in the case.
Thus, CALCRIM No. 226 as given fully covered the defense theory of the case. As we have indicated above, defense counsel’s closing argument highlighted all of the relevant factors identified in the instruction. The instruction, together with counsel’s argument, fully and fairly informed the jury as to defendant’s theory of the case.
The trial court correctly refused defendant’s proposed modification of CALCRIM No. 226.
III
Defendant contends that the trial court erred prejudicially by refusing to allow his medical expert, Dr. Crawford, to testify, in support of defendant’s third party culpability theory, that an 11-year-old boy is physiologically capable of rape. The trial court did not err.
Background
During the redirect examination of Dr. Crawford, the following colloquy occurred:
“Q [by defense counsel]. And let me just ask you. The history that you get from female children that you speak to or examine or that you read about, is the assault on them always by an adult male‌
“[The prosecutor]: Objection, relevance.
“THE COURT: Sustained.
“[Defense counsel]: I’ll ask it this way.
“Q. Physiologically would it be possible for a young person to cause these injuries that you see on A[.]‌
“A. In the context of an assault‌
“Q. Sure.
“Q. A boy as young as eleven‌
“[The prosecutor]: Objection, facts not in evidence.
“THE COURT: Sustained.
“[Defense counsel]: It is possible [sic] or is it not, doctor, that a finger could have caused these injuries‌
“A. Sure.
“[The prosecutor]: Objection. Facts not in evidence. Ask it be stricken.
“THE COURT: Sustained. It is stricken.
“[Defense counsel]: Can I be heard‌”
After an unreported bench conference, defense counsel moved on to another subject.
Subsequently, the trial court and counsel memorialized on the record the prior bench conference and the court’s ruling. Defense counsel stated: “I sought from [Dr. Crawford] the following testimony[:] that in his expert opinion is an 11-year-old boy capable of having an erection. [¶] And I solicited that so that the jury would be able to consider who the other potential perpetrators of these acts could be. Specifically, the people living in that house that were male [were L. V.], an adult, [B. V.], an adult, [N. V.], an adult . . . . [¶] There were . . . four sons of [L. V.] all of whom were older than J[.], and so . . . the jury didn’t need any expert testimony to determine whether or not these people could be potential culprits. [¶] But with J[.], they would need expert testimony to understand whether or not he could have used his penis in some way to cause the injury to A[.] And the Court I believe granted or sustained [the prosecutor]’s objection.”
The trial court explained that it had sustained the objection because it felt the question posed as a hypothetical was not supported by any prior evidence. Defense counsel replied that the prior evidence supporting the question was that J. was a potential perpetrator because he lived in the same house and slept in the same bed as A. The trial court stated that there was no evidence A. had implicated J. in the crime, and the fact that J. had access to her was not enough to support a third-party culpability defense. (The court noted, however, that counsel could properly argue that if A. was molested repeatedly, as Dr. Crawford opined, some explanation of her injuries other than a single attack by defendant would better fit the evidence.)
Analysis
Defendant contends that the trial court’s ruling deprived him of his constitutional right to present a defense. We disagree. There is no constitutional right to present a defense unsupported by admissible evidence. Defendant’s third party culpability theory was such a defense.
Only relevant evidence is admissible. (Evid. Code, § 210; People v. Morrison (2004) 34 Cal.4th 698, 724.) To be relevant and therefore admissible, “evidence of third party culpability must be capable of raising a reasonable doubt of the defendant’s guilt; ‘there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’” (People v. Davis (1995) 10 Cal.4th 463, 501, quoting People v. Hall (1986) 41 Cal.3d 826, 833.) Evidence of opportunity or motive, without more, is insufficient. (People v. Yeoman (2004) 31 Cal.4th 93, 140; People v. Hall, supra, 41 Cal.3d at p. 833.) The trial court’s decision to admit or exclude evidence offered to prove third party culpability is reviewed for abuse of discretion. (People v. Yeoman, supra, 31 Cal.4th at pp. 140-141; People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
Here, as the trial court found, defendant offered no evidence linking J. to the crime. The only evidence counsel cited to justify eliciting an opinion about the sexual maturity of an 11-year-old boy was that J. sometimes slept in the same bed as A. Even assuming the jury believed A.’s testimony on that point rather than J.’s contrary testimony, that is mere evidence of opportunity, which is insufficient to support a third party culpability defense. (People v. Yeoman, supra, 31 Cal.4th at p. 140; People v. Hall, supra, 41 Cal.3d at p. 833.) The trial court therefore correctly sustained the prosecutor’s objection to this line of questioning.
Defendant’s invocation of the constitutional right to present a defense does not assist him. “‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’” (People v. Jones (1998) 17 Cal.4th 279, 305, quoting People v. Hall, supra, 41 Cal.3d at p. 824.) The first rule of evidence is relevance. Evidence that 11-year-old boys in general can have erections (assuming Dr. Crawford would have so testified) and that J. sometimes shared A.’s bed, without more, had no tendency in reason to link J. to the crime. Therefore, the application of the ordinary rules of evidence to exclude the proposed opinion testimony as irrelevant did not infringe impermissibly on defendant’s right to present a defense.
Defendant has shown no error on this issue.
IV
Lastly, defendant contends that cumulative error compels reversal. As we have found no error, we reject this contention.
DISPOSITION
The judgment is affirmed.



SIMS , J.



We concur:



BLEASE , Acting P. J.



RAYE , J.


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