Filed 6/16/14 P. v. Sands CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



THE PEOPLE,                                                                                  C068905

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM030229)

         v.

PATRICK BRYAN SANDS,

                   Defendant and Appellant.




         Defendant Patrick Bryan Sands was convicted of continuous sexual abuse of a
child. In this appeal, he claims the trial court erred when it refused to allow him to
impeach the victim with evidence of her prior sexual history and a statement she made to
her physician, and when it refused to allow him to establish a witness’s bias by
questioning her about the fact her own daughter had previously been molested. We find
no error and affirm.




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                                          FACTS
       The victim, Jane Doe 1 (Jane), lived with defendant, her uncle, and his wife from
when she was seven years old until she turned 14. Testifying at trial at the age of 16
years, she described five separate molestations by defendant. The first occurred when
she was 10 years old. She was in her room drawing when defendant came in and threw
her on her bed. He took her clothes off while she struggled to get away. He held her legs
apart and rubbed his erect penis against her vagina. He penetrated just “a little bit.”
       The second molestation happened a few weeks later. Defendant sat by Jane on the
living room couch, grabbed her feet, and pulled her toward him. He pulled down her
pants and underwear and inserted his penis partly into her vagina and began moving back
and forth. He stopped when he heard his wife moving around in their bedroom.
       A third incident happened one or two weeks later in Jane’s bedroom. Jane had just
showered and was in her room with only a towel around her. Defendant walked in,
ripped the towel off her, and threw her onto the bed. Jane tried to get away, but
defendant grabbed her legs and pulled her toward him. He attempted intercourse, his
penis partially penetrating her once. He left the room when he heard a car outside.
       A fourth molestation occurred just prior to Jane’s 11th birthday. As Jane walked
to the computer room, defendant grabbed her and pulled her into his bedroom. He threw
her on the bed and pulled down her shorts. Defendant again attempted intercourse. His
penis made contact with her vagina, and he moved it back and forth along the outside.
He stopped when he heard a noise outside.
       A fifth incident happened when Jane was 12 years old. On that occasion,
defendant orally copulated her.
       In February 2009, defendant’s boyhood friend, Bryan Byars, visited from out of
town and met up with defendant at a local bar. During their conversation, defendant told
Byars he was “fooling around sexually” with Jane, including kissing her and performing


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oral sex. Byars asked defendant if he and Jane had engaged in intercourse. Defendant
replied, “It didn’t fit.”
       Byars told his mother, Carol Ramirez, about his conversation with defendant.
Ramirez later confronted defendant about the information. Defendant told her he had
fallen in love with Jane, and he “was attracted to her curvy little body.” Defendant also
told her he felt excited when Jane would lie down next to him on the couch with her
buttocks up against his genitals.
       A prosecution expert witness, Dr. Anthony Urquiza, testified regarding Child
Sexual Abuse Accommodation Syndrome, a theory used by therapists to understand and
explain how a child reacts after being sexually abused. In short, secrecy and helplessness
often lead a child victim to delay or even retract disclosures.
       A jury convicted defendant of continuous sexual abuse of a child under 14 years of
age (Pen. Code, § 288.5), and found true an allegation that defendant had engaged in
substantial sexual conduct with Jane (Pen. Code, § 1203.066, subd. (a)(8)). The trial
court sentenced defendant to state prison for the middle term of 12 years.
                                       DISCUSSION
       Defendant contends the trial court violated his constitutional right to confront
witnesses when under Evidence Code section 782 it refused to allow him to impeach Jane
with evidence of her past sexual conduct and with a conflicting statement about her lack
of sexual activity she allegedly made to her doctor, and when it refused to allow him to
cross-examine Carol Ramirez for bias based on the fact her own daughter had been
molested. We disagree with his contentions.
1.     Evidence of sexual conduct
       a.      Additional background information
       Defendant filed two motions pursuant to Evidence Code section 782 seeking
permission to introduce evidence of Jane’s prior sexual conduct to impeach her
credibility. One (in limine motion No. 3) sought to introduce a statement Jane allegedly

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made that she had once before had consensual sexual intercourse with a boy. In his offer
of proof, defense counsel alleged Jane underwent four interviews; the first with Child
Protective Services worker Carmel Kennedy, the second with forensic interviewer Lisa
Salzman, the third with district attorney investigator Alisa Burns, and the fourth with
district attorney investigator Jeff Wiles. In the first two interviews, Jane denied
defendant had sexual intercourse with her. In the third interview, Jane initially denied
defendant had sexual intercourse, but after additional questioning by Burns, Jane stated
she had been penetrated and that defendant had sexual intercourse with her on two
occasions. In the fourth interview, Jane told Wiles that defendant violently raped her
every other week for three years.
       Counsel alleged that in the second interview, Jane admitted she had experienced
consensual sexual intercourse with a boy one time. Counsel claimed this statement was
relevant to impeaching Jane’s credibility and was more probative than prejudicial.
Because she had experienced intercourse before, she knew what penetration was. Thus,
Jane allegedly lied either in the first two interviews when she said there was no
intercourse, or in the third and fourth interviews when she changed her story and said
there had been intercourse.
       The trial court denied this in limine motion. It concluded the alleged statement’s
prejudicial effect outweighed its probative value. The court found the evidence could
confuse the jury on whether minors could consent to sexual activity, and proving the
statements true would cause unreasonable delay. It also determined the evidence would
only marginally address credibility. Whether Jane had sex once with a boy was irrelevant
to her ability to describe defendant’s assaults on her. The inconsistencies in her
statements, of which there were many, were more probative on the issue of credibility
than a delayed disclosure of a consensual sexual act with a boy.
       The second motion pursuant to Evidence Code section 782 (in limine motion No.
4), sought to introduce a statement made by Jane about touching her brother’s genitals

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and her later recantation of the statement. A dependency disposition report stated that in
2000, when she would have been five years old, Jane disclosed she had touched her
brother’s “weenie” and he had liked it. The report stated Jane later said she was not
telling the truth when she made that statement. Defense counsel sought to introduce this
statement purely for credibility purposes; Jane stated she had touched and then later
denied it.
       The trial court denied this in limine motion, ruling the statement’s prejudicial
effect outweighed its probative value. Because Jane allegedly made the statement when
she was five years old, the statement had little probative value as to Jane’s credibility as a
13-year-old when she first complained about defendant or as a 16-year-old testifying at
trial. Admitting the statement also would consume the court’s time if Jane denied or
could not recall making the statements, and time had to be spent finding and examining
the person who recorded the statement.
       In addition to the two in limine motions, defendant sought to admit a third
statement under Evidence Code section 782 Jane allegedly made regarding her sexual
history, this one to her doctor. Defense counsel alleged that during an exam in February
2008, Jane told her doctor she was not sexually active. At trial, however, Jane testified
she was raped by defendant repeatedly from January 2005 until October 2008 when she
was removed from defendant’s home. According to counsel in his motion for new trial,
and to the prosecution in its opposition to the motion for new trial, the trial court refused
to allow defendant to introduce the statement allegedly made to the doctor. Defendant
claims the statement should have been admitted as it went to Jane’s credibility. Neither
party here cites to the record where the motion was actually made and denied.
       b.     Analysis
       “[A] criminal defendant states a violation of the Confrontation Clause by showing
that he was prohibited from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of the witness, and thereby ‘to

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expose to the jury the facts from which jurors . . . could appropriately draw inferences
relating to the reliability of the witness.’ [Citation.]” (Delaware v. Van Arsdall (1986)
475 U.S. 673, 680 [89 L.Ed.2d 674, 684], italics added.) However, the ordinary rules of
evidence as a general matter do not impermissibly infringe on a defendant’s right to
present a defense. (People v. Lucas (1995) 12 Cal.4th 415, 464.)
       A defendant’s right to cross-examination “is not a matter of ‘absolute right.’
Although we have said that ‘[c]ross-examination to test the credibility of a prosecuting
witness in a criminal case should be given wide latitude’ [citation], such latitude does not
‘prevent the trial court from imposing reasonable limits on defense counsel’s inquiry
based on concerns about harassment, confusion of the issues, or relevance’ [citations].
Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal
impeachment value that would entail the undue consumption of time generally does not
contravene a defendant's constitutional rights to confrontation and cross-examination.
[Citation.]” (People v Brown (2003) 31 Cal.4th 518, 545.)
       Our Legislature has imposed these principles by statute to evidence of a sexual
assault victim’s prior sexual conduct. “Evidence of the sexual conduct of a complaining
witness is admissible in a prosecution for a sex-related offense only under very strict
conditions. A defendant may not introduce evidence of specific instances of the
complaining witness’s sexual conduct, for example, in order to prove consent by the
complaining witness. (Evid. Code, § 1103, subd. (c)(1).) Such evidence may be
admissible, though, when offered to attack the credibility of the complaining witness and
when presented in accordance with the following procedures under [Evidence Code]
section 782: (1) the defendant submits a written motion ‘stating that the defense has an
offer of proof of the relevancy of evidence of the sexual conduct of the complaining
witness proposed to be presented and its relevancy in attacking the credibility of the
complaining witness’ (id., § 782, subd. (a)(1)); (2) the motion is accompanied by an
affidavit, filed under seal, that contains the offer of proof (id., subd. (a)(2)); (3) ‘[i]f the

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court finds that the offer of proof is sufficient, the court shall order a hearing out of the
presence of the jury, if any, and at the hearing allow the questioning of the complaining
witness regarding the offer of proof made by the defendant’ (id., subd. (a)(3)); and (4) if
the court, following the hearing, finds that the evidence is relevant under Evidence Code
section 780 and is not inadmissible under [Evidence Code] section 352, then it may make
an order stating what evidence may be introduced by the defendant and the nature of the
questions to be permitted. (Id., § 782, subd. (a)(4).)” (People v. Fontana (2010) 49
Cal.4th 351, 362.)
       An offer of proof is sufficient if it demonstrates how the proffered evidence is
relevant to attacking the witness’s credibility under the factors listed in Evidence Code
section 780. (Evid. Code, § 782, subd. (a).)
       “The Legislature’s purpose in crafting these limitations is manifest and represents
a valid determination that victims of sex-related offenses deserve heightened protection
against surprise, harassment, and unnecessary invasions of privacy. [Citations.] By
affording victims protection in most instances, these provisions also encourage victims of
sex-related offenses to participate in legal proceedings against alleged offenders.
[Citations.] Accordingly, our courts have properly exercised the discretion afforded by
Evidence Code section 782 ‘narrowly’ (People v. Chandler (1997) 56 Cal.App.4th 703,
708), and we emphasize that ‘[g]reat care must be taken to insure that this exception to
the general rule barring evidence of a complaining witness’ prior sexual conduct . . . does
not impermissibly encroach upon the rule itself and become a “back door” for admitting
otherwise inadmissible evidence.’ [Citation.]” (People v. Fontana, supra, 49 Cal.4th at
pp. 362-363.)
       A court’s proper application of Evidence Code section 782, as with other rules of
evidence, does not deprive a defendant of his constitutional right to confront witnesses.
(See People v. Fontana, supra, 49 Cal.4th at p. 370.) “A trial court’s ruling on the
admissibility of prior sexual conduct will be overturned on appeal only if appellant can

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show an abuse of discretion. [Citation.]” (People v. Chandler, supra, 56 Cal.App.4th at
p. 711.)
       Here, the trial court combined the two-step process required by Evidence Code
section 782 into one step. It apparently considered the offers of proof to be relevant and
assumed Jane and the other involved witnesses would testify as the offers stated, and then
it considered the proposed testimony’s prejudicial effect under Evidence Code section
352 without convening an in camera hearing. Defendant does not challenge the trial
court’s process, but instead challenges the court’s decision on its merits.
       We cannot say the trial court abused its discretion by concluding the proffered
testimony was unduly prejudicial under Evidence Code section 352. It could reasonably
conclude the proffered evidence’s probative value as to credibility was weak and
cumulative when compared with its likely prejudicial effect. Jane’s statements to
investigators and at trial disclosed a number of conflicts in her versions of the facts.
Using her later admissions and denials of having experienced intercourse, reporting she
touched her brother’s genitals and then recanting, and not being sexually active added
little to developing the contradictions in her stories and testing her credibility by them, a
trial tactic of which defense counsel strongly availed himself.
       Her having had consensual sexual intercourse was no prerequisite to being able to
determine whether defendant’s penis touched or entered her vagina. That fact does little
to aid a jury in knowing whether and when Jane was telling the truth. Her retracted
statement of touching her brother occurred when Jane was only five years old and some
11 years before trial. Her character for veracity as a five-year-old had little relevance to
her credibility as a teen. And her response to her doctor’s vague question of being
“sexually active” could be anything from a mistruth to a misunderstanding of what the
doctor meant. Being sexually active does not necessarily imply being molested.
       The trial court’s concerns about jury confusion and possible consumption of trial
time were also reasonable in light of the statements’ low probative value. The court was

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concerned about confusing the jury with testimony that a victim of sexual assault
consented to sexual intercourse while a minor, when consent was not at issue in the trial.
Also, putting on witnesses to prove the truth of Jane’s excluded statements would incur
additional time for testimony that was at best cumulative. We do not fault the court for
having these concerns.
       Against this lack of probative weight laid the substantive threat the jury, upon
hearing she had had consensual sex as a young teen and had touched her brother, would
discredit her based on those facts, as opposed to the contradictions in testimony for which
defendant sought to use them.
       Even were we to conclude the trial court’s denials deprived defendant of his
constitutional right of confrontation, we would still affirm, as the error would be
harmless. A violation of the confrontation clause is harmless if we find “ ‘beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.’ ” (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680, quoting Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710].)
       We would make that finding here. There is no reasonable doubt defendant would
not have received a more favorable verdict had the excluded testimony been admitted.
Defendant himself admitted to his friend, Bryan Byars, he had been “fooling around
sexually” with Jane, including kissing and performing oral sex. He also told Byars he
had attempted intercourse with her, but “[i]t didn’t fit.” Moreover, defendant told
Byars’s mother, Carol Ramirez, he had fallen in love with Jane and became excited when
her buttocks were next to him. The evidence defendant sought to admit would not have
overcome his own admissions.
       In addition, the prosecution admitted expert evidence from Dr. Urquiza about
Child Sexual Abuse Accommodation Syndrome that provided the jury a reasonable
explanation for the contradictions in Jane’s testimony, including those that defendant
sought to introduce but were excluded. Under the totality of the evidence here, there is

                                             9
no reasonable doubt the jury would have reached the same verdict had the excluded
evidence been admitted. Any error was therefore harmless.
2.     Evidence of bias
       While cross-examining Carol Ramirez, defense counsel asked if the reason she
had a visceral emotion upon hearing of a molestation was because her own daughter had
been molested. The prosecutor objected. At a bench conference, the trial court did not
recall an in limine motion on this issue. The prosecutor stated she had disclosed the fact
of the molestation to the defense about two or three days prior, and she had told counsel
they would need to have an Evidence Code section 402 hearing if he was going to
question Ramirez about it. The court agreed, and it refused to allow the line of
questioning. The court was concerned about the privacy interests of Ms. Ramirez and her
daughter, and about not knowing what the evidence would be before determining its
admissibility.
       Defendant claims the court erred in excluding the evidence. However, the court
informed defendant of the procedure by which he could seek to have the evidence
admitted; an Evidence Code section 402 hearing. Defendant never requested one. The
court was well within its discretion to require an Evidence Code section 402 hearing
before admitting such potentially prejudicial evidence, and defendant’s failure to seek
one forfeits his argument here.
                                     DISPOSITION
       The judgment is affirmed.

                                                       NICHOLSON             , Acting P. J.

We concur:

      ROBIE                 , J.


      BUTZ                  , J.


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