Filed 11/19/18 P. v. Capriotti CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge.

Mitchell Law Group, Inc., Michael E. Mitchell; Billy C. Washam for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

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Brent Capriotti was charged with and convicted of two counts of lewd and lascivious acts on a child under 14 years of age by force, violence, duress, menace, or threat of great bodily harm (Pen. Code, § 288, subd. (b)(1); counts 1 and 2),[1] and one count of lewd and lascivious acts on a child under fourteen years of age (§ 288, subd. (a); count 3), in relation to three incidents involving his girlfriend’s daughter, T.R.[2] Capriotti was sentenced to a determinate 18-year prison term.

On appeal, Capriotti challenges the denial of his motion to dismiss the case or sanction the prosecution for a police officer’s failure to preserve evidence, exclusion of certain evidence regarding the victim and her father, the sufficiency of the evidence to support the conviction, amendment of the information following the close of the People’s case-in-chief, defense counsel’s failure to move for a judgment of acquittal, and denial of a motion for new trial and the release of juror identifying information.

We reject appellant’s contentions and affirm the judgment.

FACTUAL BACKGROUND

T.R.’s parents divorced in 2009. In mid- to late-2010, Mother began dating Capriotti. On January 1, 2011, Mother introduced Capriotti to her family, including T.R. who was then eight years old.

A few months later, Capriotti drove T.R. to rent a movie and, while in the car, forced T.R. to masturbate him. After this incident, and as explained further below, Capriotti forced T.R. to touch him 10 to 15 more times over the course of approximately two years. Additionally, two other incidents occurred, one in which Capriotti touched T.R.’s breast under her clothes while she was sleeping, and one in which Capriotti walked naked into the living room where T.R. was awake.

T.R. reported these last two incidents to Mother. Mother confronted Capriotti, who claimed that he touched T.R.’s chest accidentally while trying to cover her with a blanket and did not know T.R. was awake when he entered the living room naked. Mother accepted these explanations.

A few weeks later, in May 2013, T.R. reported to her sister, K.R., that Capriotti made T.R. touch him. A few days later, K.R. informed her pastor of these allegations, and the pastor reported them to Father, who called the police. While Father and T.R. waited for the police, they talked about the allegations and Father wrote down what was said.

I. The People’s Case

Police Officer Matthew McCombs responded to Father’s call. Father informed Officer McCombs that he had spoken with T.R. and handed Officer McCombs a piece of paper containing five or six sentences of notes. Officer McCombs reviewed the paper, based his questions to T.R. on what he read, and referred to that information during his interview. At the time of trial, these notes could not be located; they were not produced to the defense.

In a recorded interview, Officer McCombs questioned T.R. regarding Capriotti “acting inappropriately toward [her].” T.R. reported that Capriotti forced her to touch him 10 to 15 times. These incidents occurred once in a car, once in the hallway of her house, and multiple times while she was on the couch. Capriotti also touched her breast under her clothes on one occasion. The first incident occurred about a year and half prior to the interview, a few months after Mother and Capriotti began dating. The last incident occurred about five weeks before the interview. About a month before the interview, T.R. reported the allegations to Mother but Mother did not believe her.

Officer McCombs turned the investigation over to Detective Brent Cederquist, who handles sex crimes and crimes against children. A few days after T.R.’s initial report, Detective Cederquist contacted T.R. to conduct a “pretext phone call,” a recorded call in which a potential victim, witness, or suspect tries to elicit information regarding a crime from another witness, victim, or suspect.

During the pretext call with Capriotti, T.R. stated, “I – told a friend when I – when you made me touch you.” Capriotti responded, “I don’t think that happened. What do you mean?” and “I don’t know what you’re talking about.” T.R. stated that she did not “want that to happen anymore.” Capriotti told her nothing was going to happen and urged her to speak with Mother. He told T.R. not to text him and stated, “I can’t talk about this on the phone.” He stated that they could “just act like normal and just be friends.” T.R. stated that she wanted to tell her teacher. Capriotti responded, “[I]f you tell somebody then I’m gonna go to jail and your mom’s never gonna see me.” He also told her, “[Y]ou can’t tell anybody else.”

When T.R. asked Capriotti why he “would do that,” the following exchange ensued:

[CAPRIOTTI]: I don’t – I don’t know why that happened, okay? I don’t. And I’m really sorry.

[T.R.]: I am too.

[CAPRIOTTI]: I’m really sorry, I thought about it a lot. And I don’t like it either. And it bothers me and that’s why I try not to think about it anymore. And that’s why nothing is gonna ever happen again.

[T.R.]: Again. That’s – I’m not sure if that’s actually true. How can I trust you with it? You know some people don’t keep promises.

[CAPRIOTTI]: Well, I’ll tell you what. If you promise not to tell anybody what you’re telling me right now, I promise nothing will happen to you. I’ll keep you safe.

[T.R.]: How will you keep me safe if I don’t even feel safe around you? I mean, it’s – it’s hard enough just being – thinking about you. And what you made me do.

[CAPRIOTTI]: I’m sorry.

[T.R.]: I don’t know what to do right now. I’m just I’m scared.

[CAPRIOTTI]: Don’t go telling everybody because then I’ll go to jail. I’ll go to jail- I’ll go to jail just because you said that. They won’t even have to do anything. They’ll just say – they’ll ask you…

[T.R.]: Well…

[CAPRIOTTI]: …and you’ll say what – what happened.

[T.R.]: Will you at least tell my mom.

[CAPRIOTTI]: …and it won’t even matter.

.…

[CAPRIOTTI]: Your mom already knows.

[T.R.]: No she doesn’t. I told her and she didn’t believe me. Ev—you were there yourself.

[CAPRIOTTI]: I think the best thing to do is just not talk about it anymore. And then it’ll just go away right?

[T.R.]: No. … it won’t go away in – in my mind. I’ll still be thinking about it. And I just want you to tell my mom the truth. Like what really happened.

[CAPRIOTTI]: [T.R.] I’m wondering the same thing is why you did it.

[T.R.]: I didn’t do it. You made me.

[CAPRIOTTI]: I didn’t make anybody do anything.

[T.R.]: Yeah you did.

[CAPRIOTTI]: No I didn’t.

Capriotti then assured T.R. that “[e]verything will be okay” and that she didn’t do anything wrong. At the conclusion of the call, he stated, “Don’t tell anybody and we’ll talk about it later okay?”

A few days later, T.R underwent an interview with a Child Forensic Interview Team (CFIT). During the interview, T.R. again stated that Capriotti made her touch him “in his private parts” 10 or 15 times. The first incident occurred approximately one year before the interview, when T.R. was eight or nine years old, and possibly in the spring. T.R. was traveling in Capriotti’s truck[3] to rent a movie when Capriotti undid his belt and zipper, opened his underwear, and took out his penis. He grabbed T.R.’s hand, wrapped it around his penis, and made her masturbate him. More than once, T.R. tried to take her hand away but Capriotti returned it to his penis. Capriotti sometimes closed his eyes “a tiny bit” during the incident and sometimes said, “Ah.” The incident lasted for approximately five minutes and stopped when they reached the parking lot at their destination. T.R. did not see anything come out of Capriotti’s penis.

T.R. stated that this happened numerous times and that it “usually happened the same.” The interviewer asked T.R. to describe the time she remembered most, and T.R. described an incident that occurred at approximately 2:00 a.m., during which Capriotti approached T.R. wearing only underwear while she sat on the couch playing on a laptop computer. Capriotti sat down next to T.R. and told her to keep playing. He took out his penis, grabbed T.R.’s arm, and made her rub his penis with his hand over hers. Eventually, T.R. reached for a glass of water and spilled it on herself to create a reason for her to get up to grab a paper towel. Once she did so, Capriotti left. Similar incidents happened “over and over,” sometimes while she was on a laptop and sometimes while on a computer in her hallway.

T.R. told the interviewer Capriotti touched her chest at about the time she was turning 10. T.R. was sleeping on the couch in the early morning when she felt something touching her breast and realized Capriotti had put his hand under her bra and shirt near her nipple. She turned away and Capriotti jerked his hand back quickly. T.R. thought this incident may have occurred before the incident on the couch.

On another occasion, Capriotti came into the living room completely naked in the early morning. T.R. told him she was going to sleep soon and he left.

T.R. reiterated that she spoke with Mother regarding Capriotti touching her breast and coming naked into the living room, that Mother confronted Capriotti, that Capriotti explained the incidents as accidental, and that Mother considered the matter resolved.

T.R. was asked to describe Capriotti’s penis. She stated that the top looked like a mushroom and the bottom like a whistle. It was mushy and “kinda soft,” had freckles, and was wrinkly. There was extra skin “so when it was going up, it kinda curved on the mushroom.” There was hair all around it on the “mushroom” and “stick.” When she rubbed it, it made an “eh” sound or a sound like a vacuum. Capriotti’s hands were hard and rough.

T.R. told the CFIT interviewer that she no longer wished to live with Mother because Mother did not believe her. T.R. told her sister about the abuse because T.R. couldn’t keep it to herself and felt nervous and weird around other people. When T.R. told her sister, her sister stated, “Are you lying to me? You better not be lying to me. I’m telling you if you are lying to me, [T.R.], I’m going to kill you.”

At trial, T.R. described much of her recollection of Capriotti’s abuse as vague. She explained that the first incident occurred when she was eight years old and rode with Capriotti in his truck to rent a movie. Over the course of approximately five minutes, Capriotti forced her to rub his penis up and down.

After this incident, Capriotti made T.R. touch him 10 to 15 times. These incidents happened inside her house, and most of them happened on the couch. T.R. recalled an incident that occurred when she was nine. She was on the couch playing on a laptop computer when Capriotti sat next to her, took his penis out of his boxers, and made her stroke his penis. T.R. purposely spilled a glass of water to give herself a reason to get up. The incident lasted no more than three minutes.

Another incident occurred at a desk in the hallway of her home. Around 11:00 p.m., T.R. was playing on the computer when Capriotti came out, stood next to her, took his penis out of his boxers, and made T.R. stroke his penis. T.R. also had a vague recollection of another incident that occurred in Capriotti’s residence in a neighboring county, where she again touched his penis.

T.R. described another incident that occurred when she was nine and woke up to Capriotti’s hand on her breast while she was sleeping on the couch. She also described an incident in which Capriotti entered the living room naked while T.R. was on the couch. T.R. reported these two incidents to Mother. Mother confronted Capriotti but ultimately concluded that Capriotti “wasn’t that kind of man.”

Defense counsel questioned T.R. regarding the details of her statements and the incidents, such as whether the first incident occurred in a car or a truck. T.R. was unable to recall certain details, such as what movie she was going to rent, what song was playing on the radio, how tall she was at that time, how she was sitting in the truck, whether she was looking out the window, whether Capriotti grabbed both her hand and her wrist, whether her hand was open or in a fist, and what Capriotti’s penis looked and felt like.

K.R. testified regarding her conversation with T.R. T.R. told K.R. that Capriotti touched T.R. while T.R. was sleeping and made T.R. touch him a couple of times, but K.R. could not recall any details. K.R. did not doubt that T.R. was telling the truth.

Mother testified that she dated Capriotti from 2010 until T.R. reported her allegations to the police. Capriotti stayed at Mother’s house most weekends and some weekdays. Prior to Capriotti staying over, T.R. slept in Mother’s room. When Capriotti came over, T.R. would frequently knock on Mother’s locked bedroom door, and this became a problem.

Mother confirmed that T.R. told Mother that “she was asleep, that Mr. Capriotti had – she said he grabbed the blanket to cover me and touched my boobs.” T.R. told Mother this incident occurred about two months before their conversation. T.R. also told Mother that she saw Capriotti go to the kitchen naked in the middle of the night. T.R. did not tell Mother that Capriotti made her touch him. When Mother confronted Capriotti, he admitted he went to the kitchen naked, but stated that he did not know T.R. was awake. He denied intentionally touching T.R., stating instead that he caught his finger on her blouse when he was trying to cover her with a blanket. In Mother’s view, Capriotti’s explanation “cleared it up.” About two months after T.R. made this report to Mother, the police took the children from her home after T.R. made her report to the police.

Mother recalled only one occasion that Capriotti took the children to rent a movie without her present. On that occasion, Capriotti took both T.R. and her brother, F.R.

III. Defense Case

The defense called a private investigator who had examined Capriotti’s penis in both “soft and erect” states. Prior to the examination, defense counsel informed the investigator that T.R. had described Capriotti’s penis as having “extra hanging skin” and “enough skin to cover up the head of the penis.”[4] The investigator also read a portion of a transcript wherein T.R. described Capriotti’s penis as having freckles. However, the investigator found Capriotti’s penis to be without freckles. Additionally, Capriotti was circumcised and his penis was without extra skin or “anything hanging over the head of the penis.” Capriotti was standing up during the examination. The investigator did not observe Capriotti wrap his own hand around his penis.

T.R.’s brother, F.R., testified that he worked with Capriotti for a summer while he was in high school. Based on that experience, F.R. testified that Capriotti was well respected in the community and people looked up to him as a successful businessman. The allegations made by T.R. did not change F.R.’s opinion of Capriotti.

Capriotti testified that he is a self-employed sheet metal fabricator. He has two children from a prior marriage. At the time he began dating Mother, he was divorced.

Capriotti spent weekends at Mother’s house but rarely stayed there on weekdays. T.R. would knock on the bedroom door when Capriotti and Mother would have it closed. T.R. would also stay awake past her bedtime.

Capriotti denied ever providing T.R. any transportation while the two of them were alone. He was never involved in any inappropriate physical contact with T.R. He does not wear underwear. His hands are not rough because he wears gloves at work and does not play sports.

Capriotti denied touching T.R.’s breast. He acknowledged that an incident occurred in which he covered T.R. with a blanket and she rolled over “like it was no big deal.” He also acknowledged that he walked outside of the bedroom naked by mistake on one occasion. Aside from these two occasions, Capriotti was never alone with T.R. during the entire course of his relationship with Mother.

Capriotti testified he was “terrified” during the pretext call and thought that Father had “put her up on the phone and was recording it.” He apologized to T.R. during the phone call to calm her down and reassure her. In reference to his statement in the pretext call, “[T.R], I’m wondering the same thing is why you did it,” Capriotti explained:

“I remember a night we were watching a movie. Me and [Mother] were sitting there in front of the computer on the floor and [Mother] was to my left, [F.R.] was in a chair over maybe four or five feet to the left. [T.R.] came up halfway through the movie, she’s sitting on her mom’s left. And I feel a hand go across my thigh. And at the same time I look down [Mother] is grabbing [T.R.’s] hand and saying, ‘[T.R.], watch where you put your hand.’ That’s what I thought she was talking about.”

In closing, defense counsel asserted that T.R. kept Mother and Capriotti “from coming together and having a happy life.” He further argued that T.R. fabricated the allegations because Capriotti was coming between T.R. and Mother. Defense counsel claimed that “convincing others that this something happened” would “vindicate” T.R. after Mother disbelieved her initial report of inappropriate conduct. Additionally, defense counsel argued that T.R. could not recant because she believed K.R. would kill her.

Defense counsel pointed to inconsistencies in T.R.’s statements and testimony and her lack of recall to argue she was lying. For example, defense counsel pointed out that T.R. contended the first incident occurred in a car but also in a truck, that Capriotti’s hands were rough, that his penis had freckles and extra skin, and that Capriotti wore boxers. She also gave inconsistent statements regarding the time of year and time of day that the first incident occurred. She could not recall various details, such as whether she was leaning sideways in the truck when Capriotti brought her arm across the center console to his penis. She also made statements that did not make sense, such as that Capriotti’s penis made vacuum noises, that he closed his eyes during the encounter but continued driving, that his hands were on the steering wheel but also holding her hand on his penis, and that nothing came out of his penis.

DISCUSSION

I. Preservation of Evidence

Capriotti argues his due process rights were violated when Officer McCombs failed to preserve as evidence the notes handed to him by T.R.’s father during the initial investigation of the case. Capriotti contends that this evidence had then-apparent exculpatory value and that no comparable evidence can be obtained. Accordingly, Capriotti argues, the court erred in failing to dismiss the action or instruct the jury they could presume the missing evidence was unfavorable to the People’s case. The People argue that the claim is without merit because the evidence had no then-apparent exculpatory value and the police did not act in bad faith. We conclude that Capriotti is not entitled to relief on this claim.

A. Additional Factual Background

Prior to the start of trial, defense counsel alerted the court to a potential violation of California v. Trombetta (1984) 467 U.S. 479 (Trombetta) due to loss of evidence. Counsel explained that, during Officer McCombs’s initial interview of T.R., he referenced a list of questions Father asked T.R. Defense counsel only learned of this list upon reviewing the transcript of the interview and the list itself had not been located.

The Court conducted an Evidence Code section 402[5] hearing (402 hearing) on the issue, at which Officer McCombs testified. Officer McCombs explained he spoke with Father briefly upon arriving at his residence. Father showed Officer McCombs a piece of paper the size of a large index card with handwritten notes on it. They did not discuss the notes. At the time of the hearing, Officer McCombs could not remember exactly what was written on the paper, except that the notes pertained to the incidents. Officer McCombs described the notes as being in outline or bullet point form, but could not recall whether it was a list of questions Father had for T.R., or a list of answers that T.R. provided, or a combination of both. He explained the paper contained five or six short sentences “or types of sentences” with information Father learned during his conversation with T.R. Officer McCombs further testified:

It appears to me, basing on my recollection, that [Father] had asked his daughter some questions about an incident that had occurred that she brought to his attention. Or series of incidents. And so those questions he was asking, I believe he was just providing me with that sheet of paper that he asked these questions already and I think he was just letting me know that he’d already had a conversation with her about it.

Officer McCombs could not recall whether he kept the notes in his hand while he was talking to T.R., but did not think he did so. He did not recall returning the notes to Father but likewise did not recall keeping them. He acknowledged he used the information in the notes to focus the investigation, and opined that he likely learned various details he referenced in his questioning of T.R. from the notes. When asked why he did not keep the notes, Officer McCombs stated, “I believe I was beginning my own investigation based upon information that I had learned that evening.”

The court deferred ruling on the issue pending briefing by the parties. Capriotti then brought a formal motion to dismiss and/or for sanctions due to this “destruction” of evidence. Capriotti argued the existence of the notes indicated T.R. had been coached by Father, and the information contained therein was used by Officer McCombs to further coach T.R.’s responses to questioning. According to Capriotti, this coaching, together with inconsistencies in T.R.’s later CFIT interview, suggested her story was fabricated.

Prior to a ruling on the motion, Officer McCombs testified at trial, where he was questioned regarding Father’s notes. Officer McCombs could not recall the content of the notes “word-for-word” but testified that he based his questions to T.R. upon information he read in the notes and referenced the notes during his questioning. He did not keep the notes because he “didn’t see it as evidence or for [his] report.” T.R. testified at trial that Father wrote the notes “[w]hen he asked questions and then when I answered he would write down what I answered.”

The trial court eventually denied Capriotti’s motion as follows:

I don’t – in the Court’s mind, it does not appear to have been – whether he should have known it was evidence, I don’t know. But it’s clear that he didn’t know. He didn’t feel that it was anything of value. He felt he was doing his own investigation, did not see the significance of it. I don’t believe it is such, based upon the testimony that we’ve heard in the trial, that it is such information that would have been known or should have been known to the officer that it was evidence that he should have preserved it. Does not appear that anyone has made any attempts to locate it or attempt to find it or see if it still exists. On that basis, the Court is not going to grant the motion either to dismiss or provide an additional instruction to the jury on that issue.

In closing argument, defense counsel referred to the notes to suggest Officer McCombs’s interview of T.R. involved coaching and to question the veracity of her claims, noting that the details of the offenses “start[ed] coming out on this piece of paper that just disappears.”

B. Applicable Legal Standards

The Due Process clause of the Fourteenth Amendment affords criminal defendants the right to a fair trial and the opportunity to present a complete defense. (Trombetta, supra, 467 U.S. at p. 485.) These rights impose on the prosecution an obligation to preserve evidence, but this duty is limited to evidence “that might be expected to play a significant role in the suspect’s defense.” (Id. at p. 488, fn. omitted; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.) “This standard of ‘constitutional materiality’ imposes two requirements that a defendant must meet in order to show a due process violation. As an initial matter, the evidence must ‘possess an exculpatory value that was apparent before [it] was destroyed.’ [Citation] Additionally, it must ‘be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” (People v. Lucas (2014) 60 Cal.4th 153, 221 (Lucas), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)

The destruction of evidence “with only potential, rather than apparent, exculpatory value is without remedy under Trombetta .…” (Lucas, supra, 60 Cal.4th at p. 221.) However, a defendant may challenge the government’s failure to preserve “ ‘potentially useful’ ” evidence under Arizona v. Youngblood (1988) 488 U.S. 51, 58 (Youngblood). (Lucas, at pp. 221-222; People v. Montes (2014) 58 Cal.4th 809, 838 (Montes). Under Youngblood, the failure to preserve evidence that is not clearly exculpatory but that “could have been subjected to tests, the results of which might have exonerated the defendant,” does not violate due process unless the defendant can show bad faith on the part of the government. (Youngblood, at pp. 57-58.) “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” (Youngblood, at p. 56, fn. *; Montes, at p. 838.)

We review the trial court’s denial of Capriotti’s motion to dismiss and for sanctions for substantial evidence. (People v. Duff (2014) 58 Cal.4th 527, 549; Montes, supra, 58 Cal.4th at p. 838.)

C. Analysis

Capriotti argues the trial court did not find the notes lacked then-apparent exculpatory value because the court stated, “whether [the officer] should

have known it was evidence, I don’t know.” However, the trial court went on to state, “I don’t believe it is such, based upon the testimony that we’ve heard in the trial, that it is such information that would have been known or should have been known to the officer that it was evidence that he should have preserved it.” In so stating, the court impliedly found that the notes lacked then-apparent exculpatory value.

This finding is supported by substantial evidence. The notes were described as memorializing a conversation between Father and T.R. that occurred before the police arrived. The notes either documented Father’s questions, or T.R.’s answers, or both. It therefore appears that the notes may have been inculpatory, rather than exculpatory. There is no suggestion that the notes contained direct evidence of fabrication or exculpated Capriotti by stating that he did not commit the offenses. (See Lucas, supra, 60 Cal.4th at p. 221 [evidence not constitutionally material where there was “no indication” it “would have exculpated defendant”]; People v. Cook (2007) 40 Cal.4th 1334, 1349 [“defendant failed to show [the evidence] actually contained possibly exculpatory evidence”].) Indeed, Capriotti himself acknowledges that the notes would not have controverted T.R.’s claims, but merely would have suggested that T.R.’s responses were coached.

The sole evidentiary value of the notes appears to be that they permit speculation that Father asked leading questions regarding fabricated events that supplied T.R. with facts necessary to make a false report. However, “ ‘[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ ” (Lucas, supra, 60 Cal.4th at p. 234; People v. Thomas (2012) 54 Cal.4th 908, 929 [speculation that unrecorded portion of interview differed from written notes and might have been helpful to defense is insufficient under Trombetta].) We therefore conclude that the notes lacked apparent exculpatory value at the time they were lost or destroyed.

Additionally, support for this speculative inference of coaching was available through comparable evidence obtained through alternative means. Both Officer McCombs and T.R. testified at trial regarding the contents of the notes and were subject to cross-examination. Officer McCombs acknowledged that the notes may have contained Father’s questions and that he relied on the notes in questioning T.R. Defense counsel relied on the existence and disappearance of the notes to argue that T.R. was coached. The loss of the notes therefore did not deprive Capriotti of the opportunity to present this defense to the jury. (See People v. Fauber (1992) 2 Cal.4th 792, 830 [comparable evidence of unrecorded interview was available through testimony of interviewee, and this evidence was elicited during cross-examination and relied on during closing argument]; see also People v. Walker (1988) 47 Cal.3d 605, 638 [comparable evidence of recorded conversation was elicited through cross-examination of officer who monitored the recording].)

Because the evidence lacked then-apparent exculpatory value and other, comparable evidence of coaching could be obtained, Capriotti may only demonstrate a due process violation if the government acted in bad faith in failing to preserve the evidence. (Youngblood, 488 U.S. at p. 57-58.) However, the trial court credited Officer McCombs’s testimony that he did not believe the notes were evidence, did not feel they had value, and did not see them as significant. The trial court further found that the evidence was not such that Officer McCombs would have known or should have known it should have been preserved. In so doing, the trial court impliedly found that Officer McCombs did not act in bad faith.

This finding is also supported by substantial evidence. Officer McCombs testified that he did not preserve Father’s notes because he was conducting his own investigation. He did not know what happened to the notes. There is nothing in the record indicating the notes were purposely destroyed to prevent appellant from benefiting from any exculpatory value they might have. (See People v. Webb (1993) 6 Cal.4th 494, 519 [bad faith requirement is “primarily intended to deter the police from purposefully denying an accused the benefit of evidence that is in their possession and known to be exculpatory”].) Without more, Officer McCombs’s failure to preserve the notes does not establish bad faith. (People v. Roybal (1998) 19 Cal.4th 481, 510 [substantial evidence supported conclusion that disappearance of evidence was inadvertent].) Capriotti does not argue otherwise.

Because Capriotti failed to make the required showing under Trombetta and Youngblood, the court properly denied his request to sanction the prosecution by either dismissing the case or giving the jury a “missing evidence” instruction. (See People v. Cooper (1991) 53 Cal.3d 771, 811 [where no due process violation has occurred, the trial court is not required to impose any sanction, including jury instructions].) We find neither a violation of due process nor instructional error.

II. Exclusion of Evidence Regarding Father

Capriotti contends the trial court erred in excluding testimony that suggested Father bore negative beliefs that affected T.R.’s attitude toward Capriotti. Specifically, he challenges the exclusion of testimony regarding Father’s “excessive religiosity and abnormal fears of sexual conduct” and of his “hatred” for Capriotti. Capriotti theorizes that Father’s negative views caused T.R. to fabricate her claims and argues the exclusion of this testimony precluded him from presenting this defense to the jury.

A. Additional Factual Background

Capriotti brought a motion in limine to “present defense evidence on alleged victim’s father’s role in spurring false allegations of molest due to moral and religious objection to mother’s lifestyle and the role that defendant played in that lifestyle.” The motion was supported by transcripts of recordings made by T.R.’s brother, F.R.[6] One transcript purports to be taken from a meeting regarding the custody of the children during dependency proceedings that arose out of the allegations at issue in this case. Therein, Father is alleged to have expressed the view that the children should attend church, that the family was “in this case” because Mother had moved out of the church, and that, as a result of these spiritual changes, T.R. “naturally was abused.” Father opined T.R. was abused because she was living with Mother, and there was a danger that it would happen again because Mother would “continue with that lifestyle.” He claimed Mother would begin dating someone else and put the children “back in square one.” Father stated, “[I]f things don’t be done in a way that we protect those children, in just a little bit of time, there’ll be more victims of something else because you don’t have any idea on how the devil works.” Father claimed that things would get “worse and worse” if the children were placed back with Mother and, by the time they were “killed or raped,” it would be too late for CPS to intervene.

The second transcript purported to reflect a conversation between Father and F.R. in which Father is alleged to have described Mother’s “ugly ways” of “running around with a younger guy.” Father told F.R. that Mother would not do this if she cared about F.R. Father opined that Mother did not care about the family, that she tore the family apart, and that she needed to go to church and repent.

In a hearing on the motion, defense counsel argued that these transcripts reflected Father’s “morbid fascination” with the idea of molestation. Defense counsel asserted that Father wanted to keep his children in the church and have them attend church nearly every day, but Mother would not require them to attend church. Defense counsel therefore argued that Father’s religious beliefs were relevant to his “motive and means of control of his children.” Defense counsel claimed that Father’s “motive for spurring on this false accusation was … twofold. To … punish his ex-wife and to regain control of or to have more control of the religious upbringing of the children.” The court stated, “Well, I think if the direct examination is such you can go into the area of this motive if you wish, but I’m not sure we are going to explore his religious beliefs.”

The prosecutor objected to Father being called as a witness on the ground the defense had made no offer of proof as to relevance. Defense counsel claimed that the transcripts attached to the motion constituted an offer of proof. Defense counsel described the transcripts as detailing Father’s “obsessive religious fears and motives and it is the defense theory that he prompted the alleged victim to make the false report in order to further his overall objectives, which is to gain control of the children and their upbringing from his wife, whom he deems to be an impure woman and a woman who places herself above her children based upon in no small part her relationship with a younger man, to wit, Mr. Capriotti, the defendant.” The court deferred ruling on the motion pending a 402 hearing.

During a hearing on the People’s motions in limine, the court addressed other negative statements Father purportedly made regarding Capriotti, which the People sought to exclude. The court stated, “To the extent they were statements made by the father to the complaining witness in this matter, they are made prior to the report of the charge that is alleged, I think that’s relevant and that comes in.” However, statements made after the report or in front of others were deemed irrelevant.

The court later revisited the issue of Father’s religious beliefs but again deferred ruling, stating, “If it’s a fact he attended church and he has certain religious principles, I’m not sure how that’s relevant. But to the extent that he has communicated certain things to the complaining witness prior to the reporting of the incidences, they may or may not be relevant and the Court may or may not allow his testimony to come in.”

The court eventually held a 402 hearing, at which T.R. testified that Father thought T.R. should come and live with him for religious reasons. Father did not like to discuss Mother and did not discuss Mother having a boyfriend. He did not speak ill of Capriotti; indeed, T.R. could not recall Father speaking of Capriotti at all.

Thereafter, the court concluded there was no basis to call Father as a witness on this issue. Capriotti then sought to introduce testimony from F.R. that Father made negative remarks about Capriotti in front of the children. The court stated that such testimony could be admitted to impeach T.R., to the extent T.R. testified to the contrary. Another 402 hearing was conducted in which F.R. testified that Father would speak with the siblings collectively about Capriotti prior to T.R.’s report of abuse. F.R. assumed T.R. was present for these conversations, although he could not recall any specific occasions. However, due to the frequency of the discussions, T.R. was “[d]efinitely” there on one or more occasions.

F.R. testified that Father viewed Capriotti “very negatively” and made a point to emphasize that Capriotti was not a good role model for F.R. and F.R. shouldn’t follow Capriotti’s path or be anything like him. These things were not expressly stated, but “heavily implied.” F.R. could not recall concrete examples of what was said, other than that Father used “negative language” that would be used to put a person down. These conversations occurred at a point where F.R. had not known Capriotti very long and was still forming his initial impressions of him. Defense counsel asked F.R. whether Father would speak in religious parables or quote scripture, but the prosecution’s objection to this question was sustained.

The trial court concluded F.R.’s testimony was irrelevant because he could not describe what was said, and the comments appeared to apply only to F.R. Additionally, there was no information regarding what specifically was said when T.R. was present, other than that it implied that Capriotti had negative traits. The court concluded that the evidence was not the “type of evidence that would provide a motive or a bias as to the witness.”

F.R. ultimately was called as a defense witness and testified to Capriotti’s positive reputation in the community.

K.R. testified that she lived with Father rather than Mother due to “[r]eligious differences.” Defense counsel asked K.R. to describe the religious differences, but the prosecutor’s objection as to relevance was sustained.

B. Applicable Legal Standards

Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) A trial court’s determination regarding relevance is reviewed for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 474.) Under this standard, the exclusion of evidence will be upheld unless the trial court acted arbitrarily, capriciously, or in a patently absurd manner that resulted in a manifest miscarriage of justice. (Lucas, supra, 60 Cal.4th at p. 240; People v. Ledesma (2006) 39 Cal.4th 641, 705.)

C Analysis

1. Negative Statements About Capriotti

The trial court did not abuse its discretion in excluding testimony regarding whether Father made negative statements regarding Capriotti. Capriotti theorizes that Father expressed his hatred of Capriotti to T.R. and argues T.R.’s allegations were therefore a product of Father’s hatred. However, Capriotti’s offer of proof in the trial court was vague. T.R. denied that Father discussed Capriotti in her presence. F.R. testified that Father spoke negatively about Capriotti in front of T.R., but he could not recall any specific statements. Instead, F.R. could recall only that Father used negative language and “implied” that Capriotti was a poor role model for F.R. Although Capriotti contends F.R.’s testimony is sufficient to suggest T.R.’s report was the result of bias, this inference is attenuated at best. We cannot say that the trial court acted arbitrarily, capriciously, or in a patently absurd manner in determining that this testimony was not relevant to motive or bias and was therefore inadmissible.

2. Father’s Religious Beliefs

Capriotti sought to introduce evidence that Father harbored morbid or obsessive religious views of sexual conduct that prompted T.R. to interpret Capriotti’s innocent acts as heinous ones. The trial court determined that Father’s religious attendance and beliefs were not, in themselves, relevant. Capriotti makes no coherent argument to the contrary, other than to assert that Father’s religious views were relevant to motive.[7] We find no abuse of discretion in the exclusion of this evidence.

As an initial matter, Capriotti made no offer of proof to suggest that Father communicated any “abnormal” religious or sexual views to T.R. prior to her report of molestation. Instead, the offer of proof consisted entirely of statements purportedly made by Father in an inadmissible recording, well after T.R.’s report of abuse, in which Father expressed concern that the children would be unsafe in Mother’s custody. We see no relevance in Father’s post hoc view that T.R. was put at risk by Mother’s irreligious lifestyle.

We are likewise unpersuaded by Capriotti’s reliance on the Second District Court of Appeal’s decision in People v. Scholl (1964) 225 Cal.App.2d 558 (Scholl). Scholl involved uncorroborated allegations of sexual offenses against an eight-year-old child. (Id. at 560.) The defense attempted to impeach the child’s mother as a “coprosecutrix” “by inquiring if she had complained of advances made to her by various men.” (Id. at 560, 562.) The trial court rejected the proffer, but the Court of Appeal reversed. (Id. at 562-564.) In so doing, the Court of Appeal noted its concern regarding the inherent unreliability of child victims who, the court opined, may be motivated by malice against the defendant or the child’s own sexual fantasies. (Id. at 563.) Combined with these concerns, the court reasoned, are “problems inherent in the testimony of a mother or other relative” for whom “the normal concern for the welfare of their child may take an aggravated form. If the mother is abnormally oriented toward sexual conduct, and has an abnormal fear of and reaction to sexual relations, she may, quite unconsciously, build up, in her own mind, a quite innocent act or caress into a grievous wrong.” (Ibid.) These abnormal views, the court reasoned, may become “implanted” in the mind of a suggestible child, resulting in the conversion of “an innocent act into a heinous one.” (Id. at p. 564.) Thus, the court concluded, “it seems to us error to deny to the defendant a reasonable opportunity to explore the not impossible existence of such a morbid fear of sexual acts in the mind of the mother as to make the charge a creature of that morbidity.” (Ibid.)

Scholl was soundly criticized by the Third District Court of Appeal in People v. Foss (2007) 155 Cal.App.4th 113, 123-124 (Foss). There, the court described the views of the Scholl court as “archaic,” and concluded that “Scholl does not accurately reflect current law and should not be followed for three reasons. First, the Scholl court made no attempt to apply the appropriate standard of review to the question of whether the questioning was properly limited. Second, the defense in Scholl apparently made no offer of proof concerning what evidence the attempted line of questioning would produce. And third, the assumptions and reasoning underlying the Scholl court’s conclusion are no longer valid because they are outdated and have been disproved in the cases and statutes to be discussed below.”[8] (Id. at 123-124, 128.) The court explained: “Just as the testimony of victims of sexual crimes is no longer deemed inherently suspect, we conclude the testimony of a non-complaining witness in a sex crime case who may have been a victim herself of unwanted sexual attention or advances, likewise should not be inherently distrusted.” (Id. at 128.) Ultimately, the Foss court upheld the exclusion of evidence regarding a witness’s alleged “morbid fear of sexual matters and child molestation” because the defense offer of proof was unspecific and speculative and, based thereon, it could not be said that the trial court had abused its discretion. (Id. at pp. 126-128.)

We agree with Foss that Scholl “no longer has binding or persuasive value” (Foss, supra, 155 Cal.App.4th at p. 130), and that theories that single out the credibility of sexual assault complaints as suspect “ ‘ “have no place in a modern system of jurisprudence.” ’ ” (Id. at p. 129.) We therefore decline to follow the holding in Scholl, that it is permissible to question a victim’s relative regarding potentially “abnormal” sexual beliefs simply because it is “not impossible” that such beliefs influenced the victim. (Scholl, supra, 225 Cal.App.2d at pp. 563-564.) Like Foss, we conclude that a specific offer of proof is necessary before such evidence may be considered admissible. (Foss, at pp. 126-128; see Evid. Code, § 354, subd. (a).)

Here, Capriotti made no offer to proof to suggest that Father conveyed morbid or abnormal religious beliefs regarding sexual conduct to T.R. prior to T.R.’s report of abuse, or that such views influenced T.R.’s claims. Capriotti’s argument, taken almost word-for-word from Scholl, is based on speculation and antiquated views regarding the reliability of child sex assault victims. Based on this speculative offer of proof, the trial court did not abuse its discretion in excluding evidence of Father’s religious views.

3. Motive

The court indicated that Father’s purported motive to gain custody and control of the children’s religious upbringing could be a permissible area for defense inquiry. Ultimately, however, Capriotti failed to make an adequate offer of proof on this point.

Father himself was not called to testify as a witness in any 402 hearing or at trial. T.R. testified at a 402 hearing that Father wanted T.R. to live with him for religious reasons. Defense counsel asked T.R. whether Father felt it was improper for T.R. to be living in a home where Mother’s boyfriend visited. The court sustained the prosecutor’s objection for speculation. Defense counsel did not pursue the matter further through proper questioning on matters over which T.R. had personal knowledge. Moreover, the sole question defense counsel posed to F.R. on this subject concerned whether Father spoke in religious parables or quoted scripture, not whether Mother and Father disagreed about the children’s religious practice, upbringing, or living arrangements. In short, none of the testimony presented at the 402 hearings addressed Father’s motive to prompt T.R. to make a false report.

Based on the offer of proof, we find no abuse of discretion by the trial court in excluding evidence of Father’s religious motivations.

4. Constitutional Concerns

Capriotti contends that the exclusion of evidence regarding Father’s religious beliefs and negative views of Capriotti violated his constitutional rights “to be heard and present evidence central to the defendant’s claim of innocence.” We disagree.

The federal Constitution guarantees a criminal defendant a meaningful opportunity to present a complete defense, including the right to confront and cross-examine witnesses against him. (U.S. Const., 6th Amend., 14th Amend.; Crane v. Kentucky (1986) 476 U.S. 683, 690-691.) Both the right of confrontation and the right to present a defense are subject to reasonable limitation. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall); People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge).) Thus, the constitutional right to present a defense does not include the right to present inadmissible evidence (People v. Cudjo (1993) 6 Cal.4th 585, 611; see People v. Ayala (2000) 23 Cal.4th 225, 269), and the application of the ordinary rules of evidence generally “ ‘does not impermissibly infringe on a defendant’s right to present a defense.’ ” (Fudge, at pp. 1102-1103.)

Thus, trial judges retain “wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Van Arsdall, supra, 475 U.S. at p. 679.) “The court’s ‘limitation on cross-examination does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.’ ” (People v. Williams (2016) 1 Cal.5th 1166, 1192.) “ ‘Exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendant’s right of confrontation.’ ” (People v. Ardoin (2011) 196 Cal.App.4th 102, 119; see Van Arsdall, at p. 679.)

Here, we have concluded the evidence of Father’s negative view of Capriotti, religious beliefs, and motive to control the children’s religious upbringing was properly excluded under the rules of evidence. Additionally, this evidence had minimal, if any, probative value on the issue of T.R.’s veracity. The suggestion that T.R. was prompted by Father to make her report was speculative at best, particularly where the record establishes that T.R. reported Capriotti’s actions to both Mother and K.R. prior to Father becoming aware of her report.

Moreover, defense counsel vigorously cross-examined T.R. regarding her own motives to fabricate the claims, including her alleged dislike of Capriotti and desire to remove him from Mother’s house. Defense counsel also attacked T.R.’s credibility on more concrete grounds than those urged here, by pointing to inconsistencies in T.R.’s account of the events and arguing that T.R. craved “drama” and was upset with Capriotti for kicking her out of Mother’s room. We therefore cannot conclude that a reasonable jury would have maintained a significantly different impression of T.R.’s credibility had the excluded testimony been permitted. The exclusion of this evidence was harmless beyond a reasonable doubt given its lack of probative value.

III. Exclusion of Evidence regarding T.R.

Capriotti asserts that the court abused its discretion by excluding one of T.R.’s diary entries and testimony regarding whether T.R. made false statements about K.R. during her CFIT interview.

A. T.R.’s statements regarding K.R.

During the CFIT interview, T.R. stated:

I, I couldn’t help keeping it to myself. I was nervous, just nervous out in front of a whole crowd of people because I was every day feeling weird about it; and – okay, I finally got the courage in myself to tell my sister. She said, ‘Are you lying to me? You better not be lying to me. I’m telling you if you’re lying to me, [T.R.], I’m going to kill you.’ And at that time, she wasn’t kidding. I’m pretty sure she would have killed me if I was lying to her about that.

During cross-examination, defense counsel questioned T.R. regarding this statement:

[DEFENSE COUNSEL]: Okay. And do you recall towards the end of the interview describing that you finally got the courage in yourself to tell your sister and she said, “Are you lying to me? You better not be lying to me?”

[T.R.]: Yes.

[DEFENSE COUNSEL]: Did that happen?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. And do you remember what you said when she asked you the questions?

[T.R.]: I remember saying something along the line of “I wouldn’t lie about something like this.”

[DEFENSE COUNSEL]: Okay. Did she tell you, “I’m telling you, if you are lying to me, [T.R.], I’m going to kill you”?

[T.R.]: I guess.

[DEFENSE COUNSEL]: You guess?

[T.R.]: I don’t remember exactly.

[DEFENSE COUNSEL]: Okay. So you don’t remember her telling you that she was going to kill you if you were lying?

[T.R.]: I’m assuming if she did it was completely theoretical.

[DEFENSE COUNSEL]: Do you remember telling the interviewer on May the 29th, 2013, “And at that time she wasn’t kidding. I’m pretty sure she would have killed me if I was lying to her about that”?

[T.R.]: I guess, yes.

[DEFENSE COUNSEL]: You saw that on the tape just a few days ago, didn’t you?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. And you remember saying it?

[T.R.]: I don’t remember saying it. But apparently I did.

[DEFENSE COUNSEL]: Okay. Was it the truth?

[T.R.]: I was just overexaggerating.

[DEFENSE COUNSEL]: Ah. Now, do you remember at the beginning of the interview that you did on May the 29th of 2013 you were asked what had happened that day, that very day, yes?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. And you remember that at the very beginning of the interview you promised that you would just tell the truth between you and the interviewer and then there would be no lies during this interview, yes?

[T.R.]: Yes.

[DEFENSE COUNSEL]: You understood the difference between a truth and a lie at that point in time, yes?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. And would having a transcript of the interview help refresh your recollection?

[T.R.]: I don’t know what a transcript is.

[DEFENSE COUNSEL]: Well, where somebody wrote down everything that was said in the interview.

[T.R.]: I -- yes.

Counsel then provided T.R. with a copy of the CFIT interview transcript for purposes of refreshing her recollection, and resumed questioning:

[DEFENSE COUNSEL]: Okay. Does that help refresh your recollection on telling the truth and promising to tell the truth that day?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. So did you promise to tell the truth, yes?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. And yet you exaggerated?

[T.R.]: Yes.

[DEFENSE COUNSEL]: Okay. So you didn’t keep that promise, did you?

[PROSECUTOR]: Objection. Relevance.

THE COURT: You may answer the question if you understand it.

BY THE WITNESS: I -- yes.

[DEFENSE COUNSEL]: You did keep the promise?

[T.R.]: Well --

[DEFENSE COUNSEL]: To tell the truth.

[T.R.]: I don’t know. I’m assuming at the time I believe she would have. But I was still overexaggerating.

[DEFENSE COUNSEL]: So she didn’t threaten to kill you if you were lying?

[T.R.]: I don’t remember.

[PROSECUTOR]: Objection. Speculation.

THE COURT: Sustained. Counsel, I think it’s already been asked and answered. Let’s move on to something else.

Capriotti now contends the trial court erred by preventing counsel from impeaching T.R. with her statements to the CFIT interviewer and this error violated his constitutional rights.[9]

It is unclear whether the court sustained the People’s objection on grounds of speculation, or because the question was asked and answered, or both. We agree with Capriotti that speculation was not a proper ground for sustaining the objection. Evidence Code section 702 provides: “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.” T.R. was competent to respond to a question regarding whether her sister had made the statement in question in T.R.’s presence.

However, Evidence Code section 774 provides that a witness may not be “reexamined as to the same matter without leave of the court.” The court has discretion to sustain an objection to a question that repeats a question already asked. (People v. Walker (1948) 33 Cal.2d 250, 257.) On cross-examination, counsel has some latitude to ask the same question multiple times to probe whether a subject will modify his or her testimony. (People v. Riel (2000) 22 Cal.4th 1153, 1197.) However, the court also has latitude to curtail questioning that “threaten[s] to become unduly repetitious and unproductive.” (People v. Mayfield (1997) 14 Cal.4th 668, 756, abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)

Here, T.R. had already responded to the same question more than once. The first time T.R. was asked whether K.R. had stated “I’m telling you, if you are lying to me, [T.R.], I’m going to kill you,” she responded “I guess,” and then, “I don’t remember exactly.” The second time she was asked, she responded, “I’m assuming if she did it was completely theoretical.” The third time she was asked, the People’s objection was sustained. However, before it was, T.R. responded, “I don’t remember.” The court was within its discretion to curtail this repetitive questioning.

Moreover, we cannot conclude that the jury would have harbored a significantly different view of T.R.’s credibility had Capriotti been permitted to pursue this questioning further. Even if the objection had not been sustained, T.R.’s response, “I don’t remember,” was consistent with her prior testimony. Additionally, testimony to support Capriotti’s theories of the case had already been elicited. On the one hand, defense counsel suggested T.R.’s statement about K.R.’s threat to kill her was an exaggeration, and that T.R. therefore exaggerated or lied throughout the interview. This theory could be supported by T.R.’s testimony that she could not recall whether the statement was true and now believed the statement to be an exaggeration. Alternatively, defense counsel argued that T.R. believed K.R. would kill her and therefore was unable to recant. This inference also could be supported by T.R.’s testimony, “I’m assuming at the time I believe she would have [killed me].”

We conclude the court did not abuse its discretion or violate Capriotti’s constitutional rights in curtailing this repetitive questioning.

B. T.R.’s Diary

In a motion in limine, the prosecution sought to exclude evidence of a diary entry written by T.R. in October 2014, more than a year after she reported the abuse. In the entry, T.R. wrote, “I would suck dad off if it meant I could be with babe again.” Detective Cederquist was contacted by Mother regarding this diary entry and conducted further investigation. When he asked T.R. about the entry, T.R. stated that she wrote the comment because she was mad at her mother, who had made her stop talking with a boy. T.R. also denied anything inappropriate had occurred with Father.

Defense counsel objected to the exclusion of this evidence, arguing that it was relevant to show what T.R. would do to take revenge on Mother and because it was a “very unusual diary entry for a child of her age.” Defense counsel asserted T.R. wrote the statement to get even with Mother and argued that “by fantasizing or coming up with these scenarios, true or not, of performing sex acts with family. She would get even with her mother. If she would get even with her mother in that way, what would she do to Mr. Capriotti .…”

In a 402 hearing, T.R. testified that she wrote the entry because she was “upset with my mother” because “[s]he would not allow [T.R.] to date a boy.” On cross-examination, she testified she was frustrated when she wrote the entry. She admitted that she would not actually “suck off dad” in order to date the boy, so the entry was false or an exaggeration.

Following the hearing, the court again asked defense counsel to explain the relevance of the entry. Counsel responded, “well, you know, we don’t have to move it into evidence.” No other argument was provided. The court ruled the diary and any reference to it was inadmissible because it was irrelevant and, even if marginally relevant, its relevance was outweighed by undue consumption of time and prejudice.

Capriotti now argues the court abused its discretion in excluding evidence of the diary entry and that this error violated his constitutional rights. However, he abandoned his objection to the exclusion of this evidence after the 402 hearing by stating, “we don’t have to move it into evidence.”

In any event, the evidence was properly excluded. Trial counsel himself was unable to articulate the relevance of this evidence after hearing T.R.’s testimony. The diary entry was written in anger more than a year after T.R.’s report of abuse. It does not concern a false report of abuse or any other matter that would seem to reflect on T.R.’s credibility. Nor can we say it reflects that T.R. had an unusually advanced knowledge of sexual matters at the time she made her report, given that the diary entry was written more than a year later.

Even assuming the evidence held a modicum of relevance, it was properly excluded under Evidence Code section 352, which provides that evidence is inadmissible if the court determines its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) Here, again, the probative value of the evidence, if any, is low. The court did not abuse its discretion in concluding that this probative value was outweighed by the possibility that presentation of the evidence would be outweighed by undue consumption of time.

IV. Sufficiency of the Evidence

Capriotti argues there is insufficient evidence to support his convictions. He claims that, due to inconsistencies or ambiguities in T.R.’s descriptions of the acts, the evidence raises only a suspicion of his guilt. We conclude substantial evidence supports the judgment.[10]

In reviewing the sufficiency of the evidence, “ ‘we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) “We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) “The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (Cravens, 53 Cal.4th at p. 508.)

Counts 1 and 2 charged Capriotti with violations of section 288, subdivision (b)(1), and Count 3 charged him with violation of section 288, subdivision (a). All three counts required the People to prove that Capriotti “willfully and lewdly commit[ted] any lewd or lascivious act, ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a).) Counts 1 and 2 additionally required the People to prove that Capriotti committed the acts “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 288, subd. (b)(1).)

It is undisputed that T.R. was under the age of 14 at the time of each alleged incident. As to Count 1, T.R. testified that Capriotti forced her to put her hand on his penis and rub it while they were driving together in his truck. She attempted to remove her hand, but Capriotti wouldn’t let her. This testimony constitutes substantial evidence to support the jury’s conclusion that Capriotti willfully and lewdly committed a lewd or lascivious act with the body of a child with the intent of arousing or gratifying his own lust, passions, or desires, and that he did so through use of force. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 [“Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.”].)

T.R. testified that Capriotti made her touch him 10 to 15 other times. She testified specifically regarding two incidents, either of which could support the judgment on Count 2. In the first incident, T.R. was sitting on the couch playing on the computer when Capriotti sat down next to her, removed his penis from his underwear, put her hand on his penis, and made her stroke it. In the other incident, T.R. was in the hallway playing on the computer when Capriotti stood next to her, removed his penis from his boxers, grabbed T.R.’s wrist, and made her stroke his penis. Either incident would support the jury’s findings on each of the elements of section 288, subdivision (b)(1).

As to Count 3, T.R. testified that Capriotti grabbed her breast under her clothes one night while she slept on the couch. T.R.’s account of the incident is sufficient to support a finding that Capriotti’s conduct was willful, rather than accidental as Capriotti claimed. T.R.’s testimony alone is sufficient to support the jury’s finding on Count 3.

Capriotti nonetheless argues that T.R.’s lack of specificity regarding the dates of the incidents undermines this evidence. However, the details of a child molestation charge – including date and place – are not elements of the offense and are not necessary to sustain a conviction. (People v. Jones (1990) 51 Cal.3d 294, 315 (Jones).) The victim must describe the general time period in which the acts occurred only to assure the acts were committed within the applicable limitation period, and to show the age of the victim. (Id. at p. 316; § 288, subd. (a).) The evidence is not insufficient if it shows that the offense occurred on a date not identified in the information. (People v. Garcia (2016) 247 Cal.App.4th 1013, 1022 (Garcia).) While the complainant must be able to “describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information,” (Jones, at p. 316, italics omitted), T.R. did so here. We therefore reject Capriotti’s argument that the evidence is insufficient because T.R. could not remember precisely when the incidents occurred.

The fact that T.R. could not remember details such as whether Capriotti’s vehicle had an automatic or manual transmission, the season in which the incidents occurred, or which hand Capriotti used to force T.R. to touch him, likewise does not undermine our conclusion. These details are not elements of the offense and the People were not required to prove them. At most, they called into question T.R.’s credibility, a point which the jury resolved in her favor and which we do not review on appeal. (People v. Booker (2011) 51 Cal.4th 141, 173 [“[O]n review we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that could reasonably be inferred from the evidence.”].)

We therefore conclude that the judgment is supported by substantial evidence.

V. Amendment to Information

Capriotti argues that the court abused its discretion in permitting the People to amend the information at the close of their case-in-chief. He contends the amendment prejudiced his defense and violated his rights under the Confrontation Clause. He states that, absent amendment at this stage, he “might well have established an alibi for one or more of the acts,” or identified other evidence to refute the claims, such as evidence of T.R.’s absence from the home on particular dates or the presence of other percipient witnesses.

A. Applicable Legal Standards

Due process requires that the accused be informed of the nature and cause of the accusation so that he has a reasonable opportunity to prepare and present a defense and is not surprised by the evidence offered against him at trial. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 15; People v. Fernandez (2013) 216 Cal.App.4th 540, 554 (Fernandez); People v. Torres (2011) 198 Cal.App.4th 1131, 1139-1140.) Several procedures, including the information, the preliminary examination, and pretrial discovery, afford criminal defendants notice of the charges against them. (Jones, supra, 51 Cal.3d at pp. 317-318.)

Section 1009 provides that the court may order or permit an amendment to an information at any stage of the proceedings. Amendment is permissible under the due process clause so long as the defendant’s substantial rights are not prejudiced. (People v. Graff (2009) 170 Cal.App.4th 345, 361-362 (Graff).) An information may not be amended to charge an offense not shown by the evidence taken at the preliminary examination. (§ 1009; see Graff, at p. 362.) However, the timing of a crime is generally not an element of an offense, and thus the information need not provide notice of the specific time or place of the offense. (Jones, supra, 51 Cal.3d at p. 317; § 955.) A correction to the date of the charged offense generally does not amount to an allegation of a new or different crime from the one disclosed at the preliminary hearing.

The trial court’s ruling on a motion to amend the information is reviewed for abuse of discretion. (People v. Winters (1990) 221 Cal.App.3d 997, 1005.)

B. Analysis

As originally filed, the information alleged that the offense in count 1 occurred “on or about and between September, 2010 and August, 2011,” the offense in count 2 “on or about and between September, 2011 and August, 2012,” and the offense in Count 3 “on or about and between September, 2011 and August, 2012.” At the close of the prosecution’s case in chief, the People moved to amend the information to conform to the proof at trial. The court granted the motion over Capriotti’s objection. In the amended information, count 1 was alleged to have occurred on, about, or between February 1, 2011 and January 31, 2012; count 2 on, about, or between February 1, 2012 and January 31, 2013; and count 3 on, about, or between August 28, 2011 and August 27, 2012. In other words, the original information charged offenses occurring between September 2010 and August 2012, while the amended information charged offenses occurring between February 1, 2011 and January 31, 2013, a period ending five months later than originally alleged. The amendment did not add new offenses or change the nature of the crimes alleged. (See Jones, supra, 51 Cal.3d at p. 317.)

Capriotti nonetheless argues that he was prejudiced by the amendment because he was unable to develop an alibi defense or other evidence to refute T.R.’s claims, such as evidence that she was not in the home on specific dates or testimony from percipient witnesses. However, Capriotti could not present an alibi defense for even the original range of dates, given that he and Mother both testified at trial that he regularly spent the night at Mother’s house between January 1, 2011 and T.R.’s report of abuse in May 2013. Similarly, given the broad range of dates, evidence of T.R.’s or other individuals’ presence in or absence from the home on particular dates during the applicable period would not have refuted her claims. We fail to see how Capriotti was prejudiced in this regard.

The court did not abuse its discretion in permitting amendment of the information.

VI. Ineffective Assistance of Counsel

Capriotti argues that trial counsel’s failure to move for a judgment of acquittal at the close of the prosecution’s case-in-chief constituted ineffective assistance of counsel. He contends that, had counsel made a timely motion, this court would consider only the People’s evidence in determining whether substantial evidence supports the judgment. Additionally, such motion would have foreclosed the prosecution’s amendment of the information to conform with T.R.’s trial testimony.

“ ‘[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel’s performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 736.) A reviewing court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697.) “To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198.)

Here, even postulating that counsel’s performance was deficient, there was no prejudice to Capriotti. As explained above, the judgment is substantially supported by T.R.’s testimony, which was introduced in the People’s case-in-chief. Additionally, because the date of the offense is not an element necessary to sustain a conviction, a motion for judgment of acquittal brought prior to the amendment of the information would not have succeeded even if the offenses were proved to have been committed on different dates. (Jones, supra, 51 Cal.3d at p. 315; Garcia, supra, 247 Cal.App.4th at p. 1022 [“ ‘The law is clear that, when it is charged that an offense was committed “on or about” a named date, the exact date need not be proved unless the time “is a material ingredient in the offense” [citation], and the evidence is not insufficient merely because it shows that the offense was committed on another date.’ ”].)

Capriotti would not have obtained a more favorable result had counsel pursued a motion for judgment of acquittal at the close of the People’s case-in-chief. His claim of ineffective assistance of counsel fails.

VII. Motion for New Trial and Juror Identifying Information

Capriotti argues the court abused its discretion in denying his motions for new trial and release of juror information. He contends Juror No. 6, the “lone ‘holdout’ juror,” was induced by other jurors to commit improper internet research. Capriotti theorizes that some or all of the original jurors encouraged Juror No. 6 to commit this misconduct so they could force his removal from the jury, which would allow them to proceed to a verdict of guilt. Alternatively, he theorizes the jurors may have encouraged Juror No. 6 to conduct outside research to support or explain his views. We find Capriotti’s contentions are unsupported and conclude the trial court did not abuse its discretion.

A. Additional Factual Background

The jury initially deliberated over the course of more than two days, then recessed for the weekend. Upon returning, the jury foreperson, Juror No. 10, sent a note stating that a juror wished to disclose that he had “looked up non case specific information on pedophilia” over the weekend. Juror No. 10 was questioned by the court and stated that Juror No. 6 made this disclosure “first thing in the morning” and had not shared the information he found. Juror No. 10 revealed that Juror No. 6 did not reference his research during deliberations and that Juror No. 6 “did not want to deliberate until he had [the court’s] consent to continue to be a juror.”

The court then questioned Juror No. 6. Juror No. 6 explained, “At the end of our meeting Friday, I asked the other jurors for their understanding of what you had given us as jury directives as far as the research. And their understanding, sir, was that it was all right to do a general investigation, but not specifically looking into the case.” When asked what he researched, Juror No. 6 stated, “I didn’t feel well enough informed on child abuse and pedophilia, so I did a general search of those subjects.” He stated that he spent 30 to 45 minutes researching this area on the internet. Juror No. 6 stated that he had not spoken to any of the jurors regarding any of his findings.

Juror No. 6 left the courtroom and the court then stated, “The Court would be inclined to excuse this juror for the following reasons: He clearly violated the Court’s directive not to do any research on the case or anything related or connected to the case. This obviously was that. It does appear that he hasn’t discussed his findings with any of the other jurors. So at this time I’d be inclined to excuse him. But if either counsel would like to ask him additional questions, we can bring him back in for that.” Defense counsel expressed that he was troubled by Juror No. 6’s statement that “he had broached the subject of doing this research with the other jurors and had been told by them that it would be okay to do a general search, non case specific search.” Juror No. 6 was then called back to the courtroom and questioned by defense counsel as follows:

[DEFENSE COUNSEL]: Regarding the discussion that you had on Friday with other jurors, did you propose to do research in their presence?

JUROR NO. 6: No. I said that I felt like I would feel better if I was a little better informed and I asked them if their interpretation of the Judge’s reading allowed for just background information research in that area.

[DEFENSE COUNSEL]: Background information in any specific area?

JUROR NO. 6: I think – I don’t recall what I said to them specifically, but I was interested in knowing more about child abuse and pedophilia.

[DEFENSE COUNSEL]: And do I understand right that your fellow jurors gave you the green light to do that?

JUROR NO. 6: Yes, sir. I didn’t hear any dissenting voices. So I understood the interpretation to be that way.

Thereafter, Juror No. 6 was excused. The court brought in the remaining jurors and asked them to raise their hands if they conducted any research regarding the case or anything connected with the case, if Juror No. 6 had communicated to them any of his findings, or if any of them thought it was permissible to conduct outside research to aid in their decision. None of the jurors raised their hands. Counsel was offered the opportunity to further question the jurors but declined.

Juror No. 6 was eventually replaced with alternate Juror No. 13. The reconstituted jury was instructed to begin its deliberations anew. The jury deliberated for approximately 27 minutes before reconvening in court for a requested playback of the pretext call. The jury then deliberated for an additional 54 minutes before reaching a verdict.

After the verdict was rendered, defense counsel moved for release of juror information and a new trial. Defense counsel stated that a single juror had remained after trial to speak with counsel. That juror identified Juror No. 6 as “the sole ‘holdout’ for reasonable doubt.” Defense counsel opined that the remaining jurors “utilized a highly improper method” to remove Juror No. 6 by inducing him to conduct research on the internet. Defense counsel theorized that the remaining jurors did so because they were unable to persuade Juror No. 6 to change his opinion. Defense counsel additionally argued that Juror No. 6 was motivated to conduct outside research because other jurors were requiring him to justify his reasonable doubt. Defense counsel also pointed out that the newly constituted jury requested playback of only one piece of evidence and deliberated briefly in comparison to the originally constituted jury. Based on these facts, defense counsel argued that the reconstituted panel did not truly deliberate.

The trial court denied the motion to release juror information, finding the defense had failed to meet its burden and the jury had, in fact, deliberated. The court likewise denied appellant’s motion for new trial based on juror misconduct.

B. Applicable Legal Standards

Trial courts must seal jurors’ identifying information. (Code Civ. Proc., § 237, subd. (a)(2).) However, the defense may petition the court for release of juror identifying information that is “necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.” (Code Civ. Proc., § 206, subd. (g).) The petition must be “supported by a declaration that includes facts sufficient to establish good cause for the release of the juror’s personal identifying information.” (Code Civ. Proc., § 237, subd. (b).) If the trial court finds that the moving party has made a prima facie showing of good cause, and if it finds no compelling interest against disclosure, it must set the matter for hearing. (Code Civ. Proc., § 237, subd. (b).) Good cause, in this context, means “a sufficient showing to support a reasonable belief that jury misconduct occurred ....” (People v. Rhodes (1989) 212 Cal.App.3d 541, 552, superseded by statute on other grounds as noted in People v. Wilson (1996) 43 Cal.App.4th 839, 852.) “Good cause does not exist where the allegations of jury misconduct are speculative, conclusory, vague, or unsupported.” (People v. Cook (2015) 236 Cal.App.4th 341, 346 (Cook).)

A motion for new trial based on juror misconduct is governed by Evidence Code section 1150, subdivision (a), which states, in relevant part: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” “When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.” (People v. Perez (1992) 4 Cal.App.4th 893, 906.)

The trial court’s rulings on a motion for release of juror information and motion for new trial are reviewed for abuse of discretion. (Cook, supra, 236 Cal.App.4th at 345-346; People v. Williams (1997) 16 Cal.4th 635, 686.)

C. Analysis

Capriotti’s theories of misconduct by jurors other than Juror No. 6 are based solely on speculation. The record reflects that the idea to conduct outside research originated with Juror No. 6. He explained to the court that he “asked the other jurors for their understanding of what [the court] had given us as jury directives as far as the research” and the other jurors responded that “it was all right to do a general investigation, but not specifically looking into the case.” Upon further questioning by defense counsel, Juror No. 6 denied that he proposed, in the presence of other jurors, to do internet research, stating instead that he told them he “would feel better if [he] was a little better informed” and asked if they understood the instructions to permit background research. He did not recall specifically what he told them regarding the area he wished to research. He then “did not hear any dissenting voices” and interpreted the jurors’ response to permit such research.

Nothing said by Juror No. 6 suggests that he was induced by other jurors to conduct outside research. At most, the record reflects that Juror No. 6 asked about conducting additional research and the other jurors did not dissuade him. Capriotti does not argue they had a responsibility to do so. He does not cite, and we do not find, authority to suggest that it is misconduct for one juror to prevent the misconduct of another. Furthermore, Juror No. 6 was well aware he may have been treading into unauthorized territory by conducting outside research. He was unsure whether his conduct was proper, but did not seek clarification from the court before proceeding. He informed the other jurors “first thing in the morning” that he had conducted research, and immediately sought the court’s approval before continuing deliberations. It is apparent that Juror No. 6 had at least some concern that his conduct was improper, but nonetheless went forward with his research. Capriotti fails to make even a prima facie showing that this misconduct should be attributed to anyone other than Juror No. 6.

We further note that Capriotti failed to develop further facts to support this claim through his questioning of either Juror No. 6 or the juror who talked to counsel after trial, despite having an opportunity to do so. Nothing before the court suggests that either juror indicated that Juror No. 6’s misconduct is attributable to anyone other than himself.

Capriotti claims that “[t]he trial court acknowledged the possibility that other jurors may have encouraged Juror No. 6 to conduct outside research.” We disagree with this characterization of the record. The court stated that “the other jurors either didn’t say anything or they didn’t say, no, don’t do it.” At one point, the court asked defense counsel to make a legal argument assuming that the jurors either said nothing “[o]r said, go ahead, do whatever you’re going to do.” The court made no factual finding that Juror No. 6’s conduct was encouraged by other jurors.

Capriotti also argues that the trial court did not “adequately consider” whether jurors other than No. 6 conducted outside research. This argument was not raised below and is therefore forfeited. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) In any event, the court questioned the jurors on this point, asking them to raise their hand if they had conducted research or thought that doing so was permissible. None of the jurors raised their hands. Capriotti characterizes this as “tacit denials” that should not be credited absent “more extensive inquiry.” Again, however, trial counsel was offered the opportunity to further question the jurors and declined. Capriotti has failed to make a prima facie showing of juror misconduct in this regard.

Lastly, Capriotti appears to argue that the jury did not deliberate because they decided the matter within “only a few hours.” As explained, the jury deliberated for a little under 30 minutes before requesting a playback of the pretext phone call. After listening to the call, they deliberated for nearly another hour. The court found that the jury had deliberated, and this finding is supported by substantial evidence.

Finally, we find unpersuasive Capriotti’s citation to People v. Atkins (1988) 203 Cal.App.3d 15. Atkins preceded amendments to Code of Civil Procedure section 237 that were intended “to maximize juror privacy and safety, while retaining a criminal defendant’s ability to contact jurors after the trial if sufficient need is shown.” (Townsel v. Superior Court (1999) 20 Cal.4th 963, 1087, italics added.) The standard applied in Atkins no longer governs. In any event, Atkins involved deliberations of only 20 minutes and is therefore distinguishable.

In sum, Capriotti failed to make a prima facie showing that juror misconduct occurred. Accordingly, the trial court did not abuse its discretion in denying his motions for new trial and the release of juror identifying information.

VIII. Cumulative Error

Capriotti argues that the cumulative effect of the trial court’s errors compels reversal. Because we find no error, there is no cumulative prejudicial effect to consider. (People v. Covarrubias (2016) 1 Cal.5th 838, 910.) We therefore reject this argument.

DISPOSITION

The judgment is affirmed.

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SNAUFFER, J.

WE CONCUR:

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DETJEN, Acting P.J.

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PEÑA, J.