Filed 7/22/13
                         CERTIFIED FOR PARTIAL PUBLICATION*




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



THE PEOPLE,                                                           C066730

                  Plaintiff and Respondent,                  (Super. Ct. No. 09F08618)

        v.

EDWARD DALE MESTAS,

                  Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County, Delbert
W. Oros, Judge. Affirmed.

        Ken Moyal for Defendant and Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and
Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts II and III.

                                               1
        Convicted of molesting his girlfriend‟s young sisters and sentenced to state prison
for an indeterminate term of 75 years to life, defendant Edward Dale Mestas appeals. He
contends: (1) the trial court abused its discretion by refusing to hold an evidentiary
hearing on some of the proffered evidence of the victims‟ sexual history and (2) his trial
counsel was constitutionally deficient for not investigating further the victims‟ sexual
history. We conclude: (1) the trial court did not abuse its discretion by refusing to hold
an evidentiary hearing on some of the proffered evidence of the victims‟ sexual history
because the alleged conduct was not sufficiently similar to the conduct charged in this
case and, therefore, was not highly probative of the victims‟ credibility in this case and
(2) the defendant‟s assertion that his counsel was constitutionally deficient fails because
it is based on speculation concerning what further investigation may have revealed.
Finding no error, we affirm.1
                                FACTS AND PROCEDURE
        In early 2009, six-year-old T.M. and seven-year-old J.M. lived with their mother,
their 20-year-old sister T.P., and the defendant (who was T.P.‟s boyfriend), as well as
others, in Sacramento. While they lived together, the defendant molested T.M. and J.M.
        On different occasions, the defendant masturbated in front of T.M., penetrated her
anus with his penis, forced T.M. to orally copulate him more than once, pressed his penis
against T.M.‟s lips when she refused to open her mouth, and rubbed his penis on her
back.
        The defendant also masturbated in front of J.M. and forced her to orally copulate
him.




1    In the unpublished portion of this opinion, we conclude the prosecutor did not
commit misconduct and there was no prejudice from cumulative error.

                                             2
       The contentions raised on appeal -- and our resolution of those contentions -- do
not require us to recount at length how the molestations came to light.2 However, we
note that the defendant denied molesting T.M. and J.M. He caught them watching
pornographic videos. And he claimed that T.M. and J.M. accused him of the
molestations after he had mistreated the family‟s dog.
       A jury convicted the defendant of committing two counts each of:
       a lewd act by force or fear on T.M. (Pen. Code, § 288, subd. (b)(1); counts one and
       five) and
       oral copulation of T.M. (Pen. Code, § 288.7, subd. (b); counts three and four),
       The jury also convicted the defendant of committing one count of:
       oral copulation of J.M. (Pen. Code, § 288.7, subd. (b); count seven).
       Finally, the jury found true the special allegation that the defendant committed
lewd acts on more than one child under 14. (Pen. Code, § 667.61, subd. (e)(4).)
       The trial court sentenced the defendant to five consecutive terms of 15 years to
life, for a total state prison sentence of 75 years to life.
                                         DISCUSSION
                                                 I
                                    Victims’ Sexual History
       The defendant contends the trial court abused its discretion and violated his
constitutional fair trial rights by excluding evidence of the victims‟ sexual history. He
also contends that trial counsel was constitutionally deficient for failing to investigate the
allegations of the victims‟ sexual history. These contentions are without merit.




2      The defendant does not recount the facts of the molestations or the investigation in
his opening brief.

                                                3
       A.     Evidence Code section 782
       Generally, a defendant may not question a witness who claims to be the victim of
sexual assault about the victim‟s prior sexual activity. (Evid. Code, § 1103, subd. (c)(1);
People v. Woodward (2004) 116 Cal.App.4th 821, 831.) Evidence Code section 782,
however, provides an exception to this general rule.3 (See generally People v. Bautista


3      Evidence Code section 782, subdivision (a) provides:

       “[I]f evidence of sexual conduct of the complaining witness is offered to attack the
credibility of the complaining witness under Section 780, the following procedure shall
be followed:

       “(1) A written motion shall be made by the defendant to the court and prosecutor
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.

       “(2) The written motion shall be accompanied by an affidavit in which the offer of
proof shall be stated. The affidavit shall be filed under seal and only unsealed by the
court to determine if the offer of proof is sufficient to order a hearing pursuant to
paragraph (3). After that determination, the affidavit shall be resealed by the court.

       “(3) If the 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.

       “(4) At the conclusion of the hearing, if the court finds that evidence proposed to
be offered by the defendant regarding the sexual conduct of the complaining witness is
relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the
court may make an order stating what evidence may be introduced by the defendant, and
the nature of the questions to be permitted. The defendant may then offer evidence
pursuant to the order of the court.

       “(5) An affidavit resealed by the court pursuant to paragraph (2) shall remain
sealed, unless the defendant raises an issue on appeal or collateral review relating to the
offer of proof contained in the sealed document. If the defendant raises that issue on
appeal, the court shall allow the Attorney General and appellate counsel for the defendant
access to the sealed affidavit. If the issue is raised on collateral review, the court shall
allow the district attorney and defendant's counsel access to the sealed affidavit. The use

                                              4
(2008) 163 Cal.App.4th 762, 781-782; People v. Chandler (1997) 56 Cal.App.4th 703,
707-708; People v. Daggett (1990) 225 Cal.App.3d 751, 757 (Daggett).)
       Evidence Code section 782 requires a defendant seeking to introduce evidence of
the witness‟s prior sexual conduct to file a written motion accompanied by an affidavit
containing an offer of proof concerning the relevance of the proffered evidence to attack
the credibility of the victim. (Evid. Code, § 782, subd. (a)(1), (2); Daggett, supra, 225
Cal.App.3d at p. 757.) The trial court is vested with broad discretion to weigh a
defendant‟s proffered evidence, prior to its submission to the jury, “and to resolve the
conflicting interests of the complaining witness and the defendant.” (People v. Rioz
(1984) 161 Cal.App.3d 905, 916.) “[T]he trial court need not even hold a hearing unless
it first determines that the defendant‟s sworn offer of proof is sufficient.” (Ibid.; see
Evid. Code, § 782, subd. (a)(2).)
       If the offer of proof is sufficient, the court must conduct a hearing outside the
presence of the jury and allow defense counsel to question the complaining witness
regarding the offer of proof. (Evid. Code, § 782, subd. (a)(3); People v. Fontana (2010)
49 Cal.4th 351, 365-368.) “The defense may offer evidence of the victim‟s sexual
conduct to attack the victim‟s credibility if the trial judge concludes following the hearing
that the prejudicial and other effects enumerated in . . . Evidence Code section 352 are
substantially outweighed by the probative value of the impeaching evidence.” (People v.
Chandler, supra, 56 Cal.App.4th at p. 708; see Evid. Code, § 782, subd. (a)(4).)
       Evidence Code section 782 applies when the defense seeks to introduce relevant
evidence of prior sexual conduct by a child. (Daggett, supra, 225 Cal.App.3d at p. 757.)
In Daggett, the defendant was convicted of molesting a child under the age of 14. (Id. at
p. 754.) On appeal, he successfully challenged the trial court‟s refusal to hold a hearing



of the information contained in the affidavit shall be limited solely to the pending
proceeding.”

                                              5
pursuant to Evidence Code section 782 on the admissibility of evidence that the child had
been previously molested by two older children. (Id. at p. 757.) The defendant‟s offer of
proof consisted of evidence that the child had told a mental health worker and a doctor
who had examined him that he had been molested by two older children when he was
five years old. (Ibid.)
        The Daggett court discussed the relevance of a molest victim‟s sexual history: “A
child‟s testimony in a molestation case involving oral copulation and sodomy can be
given an aura of veracity by his accurate description of the acts. This is because
knowledge of such acts may be unexpected in a child who had not been subjected to
them. [¶] In such a case it is relevant for the defendant to show that the complaining
witness had been subjected to similar acts by others in order to cast doubt upon the
conclusion that the child must have learned of these acts through the defendant. Thus, if
the acts involved in the prior molestation are similar to the acts of which the defendant
stands accused, evidence of the prior molestation is relevant to the credibility of the
complaining witness and should be admitted.” (Daggett, supra, 225 Cal.App.3d at p.
757.)
        B.    Background
        The defendant filed a motion, pursuant to Evidence Code section 782, to admit
evidence of the victims‟ sexual history. The motion stated: “[T]here has been
documented suspicion and complaints by at least one of the minor victims, to wit, [T.M.],
of a prior molestation. In addition, Defendant expects to introduce evidence of both
minors hav[ing] access to and viewing pornographic movies prior to the allegations
involving Defendant.”
        Counsel for the defendant filed a declaration supporting the Evidence Code
section 782 motion, detailing information she had received.
        Concerning J.M., the declaration stated that (1) when she was three years old and
in foster care the boys in the home removed her shirt and underwear, kissed her on the

                                              6
lips, and touched her “private area”; (2) apparently about the same time she was cut with
a knife in her private area; and (3) when she was five years old a foster mother caught her
masturbating with a toothbrush.
       Concerning T.M., the declaration stated that (1) when she was three years old she
reported being molested in foster care in Kansas, but the specifics were “sketchy and
unconfirmed”; (2) when she was four years old a foster mother observed her “ „humping
her younger brother and wanting to get under the covers‟ ”; and (3) when she was five
years old her foster mother caught her masturbating and telling J.M. to “ „smell this.‟ ”
       As to both victims, the declaration stated that the victims were caught twice in
2009, when they were six and seven years old, watching pornographic movies.
       The trial court considered the declaration and made the following rulings with
respect to whether a hearing would be held on each of the seven allegations of sexual
history contained in defense counsel‟s declaration:
       1.      The removing of J.M.‟s shirt and underwear was not relevant because it
was not necessarily sexual conduct; the kissing incident was not relevant because no
similar conduct was charged in this case; and the touching of the private area was
sufficiently relevant to be addressed at an evidentiary hearing.
       2.      J.M.‟s being cut in the private area was relevant and could be explored in
the evidentiary hearing.
       3.      J.M.‟s masturbation with a toothbrush was also relevant and could be
explored in the evidentiary hearing.
       4.      The report of molestation of T.M. in Kansas, which the trial court
understood involved some kind of “gentle rubbing,” was too vague to permit proper
Evidence Code section 782 analysis.
       5.      T.M.‟s “humping” her brother and trying to get under the covers with him
was not relevant, even though it was sexualized conduct, because it was not similar to the
facts of this case.

                                             7
         6.     T.M.‟s masturbation and telling her sister to “smell this” were not relevant
because there was no similar conduct alleged in this case.
         7.     As to the pornographic movies, the court found that there was insufficient
specificity concerning the content of the movies to determine whether the depictions were
sufficiently similar to the facts of this case.
         In summary, the trial court decided that the evidentiary hearing would explore
only three of the allegations of sexual history, all involving J.M.: (1) the touching of
J.M.‟s private area by boys in a foster home; (2) the cut in J.M.‟s private area; and (3)
J.M.‟s masturbation with a toothbrush.
         At the evidentiary hearing, J.M., who was eight years old at the time of trial,
testified that she did not remember any of these alleged incidents from when she was
very young, as young as three years old. Based on that testimony, the court stated that it
could not admit the evidence but that it was willing to hold a further evidentiary hearing
if the defense found evidence -- from the foster mothers, for example -- of what happened
to J.M. when she was younger.
         Two days later, the court clarified that it was excluding the proffered evidence of
J.M.‟s sexual history under Evidence Code section 782, subject to admission under some
other theory such as proof of prior injury, because J.M. did not remember the incidents
and, therefore, they could not provide her with knowledge of sexual matters. The court
added that it would have excluded the evidence under Evidence Code section 352, in any
event.
         C.     Analysis
         The defendant contends that the trial court abused its discretion by determining
that three of the incidents recounted in defense counsel‟s declaration were not sufficiently
similar to the facts of this case to require an evidentiary hearing. He also contends that
exclusion of this evidence violated his right to a fair trial. Those incidents were: (1) the
boys in the foster care home removing J.M.‟s shirt and underwear when she was three

                                                  8
years old; (2) the Kansas report that T.M. was molested when she was three years old;
and (3) T.M.‟s masturbating when she was five years old.
        We first conclude that exclusion of the evidence of a victim‟s sexual history does
not deny the defendant a fair trial. There is no fair trial problem with exclusion of all
such evidence under Evidence Code section 1103. “That limited exclusion no more
deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion
evidence, and privileged communications.” (People v. Blackburn (1976) 56 Cal.App.3d
685, 690.) Therefore, because the trial court may properly exclude all such evidence
without violating a defendant‟s fair trial rights, there is no merit in the argument that not
admitting some of the evidence under Evidence Code section 782 deprives the defendant
of a fair trial.
        We next conclude that the trial court did not abuse its discretion by refusing to
hold an evidentiary hearing on the proffered evidence. The alleged conduct was not
sufficiently similar to the conduct charged in this case and therefore was not sufficiently
probative of the victims‟ credibility to require an evidentiary hearing.
        The allegation that boys in the foster care home removed J.M.‟s shirt and
underwear when she was three years old was not probative of J.M.‟s credibility in this
case. There is no allegation that she learned something from that incident that would
inform the jury that some of J.M.‟s testimony in this case may be false.
        Likewise, the Kansas report that T.M. was molested when she was three years old
is not probative of her credibility. As defense counsel said in her declaration, the details
of the molestation were “sketchy and unconfirmed.” The purpose of an Evidence Code
section 782 hearing is to establish the truth and probative value of the offer of proof, not
to allow a fishing expedition based on sketchy and unconfirmed allegations.
        The defendant‟s only argument that the court should have allowed an evidentiary
hearing on the allegation of T.M.‟s masturbation is that the court allowed an evidentiary
hearing concerning the similar allegation that J.M. also masturbated. There is no logic to

                                              9
this because the probative value of each incident must stand on its own. In other words,
that J.M.‟s masturbation may have been probative does not establish that T.M.‟s
masturbation, at a different time and age and under different circumstances, was
probative.
       In any event, the trial court did not abuse its discretion by refusing to hold an
evidentiary hearing on the allegation that T.M. masturbated when she was five years old
and told J.M. to “smell this.” Even if the trial court found the allegation true after a
hearing, the evidence would have been excluded under Evidence Code section 352
because it had very little probative value with respect to T.M.‟s credibility. The
allegations against defendant were not similar or related to T.M.‟s alleged masturbation.
       The trial court did not abuse its discretion by refusing to hold an evidentiary
hearing on these three allegations.
       D.     Effective Assistance of Counsel
       The defendant further contends that trial counsel‟s representation was
constitutionally deficient because she failed to investigate the facts that related to the
Evidence Code section 782 offer of proof. This contention fails because there is no basis
for concluding any such deficient representation prejudiced the defendant.
       To demonstrate ineffective assistance of counsel, a defendant must show two
things: deficient representation and prejudice resulting from the deficient representation.
The standard for prejudice is whether there is a reasonable probability the defendant
would have obtained a better result absent the deficiency. (People v. Avena (1996) 13
Cal.4th 394, 418; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80
L.Ed.2d 674, 693-694, 697-698].) If there is no showing of prejudice, we need not
examine counsel‟s performance. (Strickland v. Washington, supra, at p. 697.)
       Here, there is no showing of prejudice. He asserts that, if trial counsel had been
more diligent, “more information regarding the complaining witnesses[‟] past sexual
knowledge and conduct would have come before the jury.” This is mere speculation. It

                                              10
assumes that, if trial counsel had done more investigation, she would have discovered
facts that the trial court would have found admissible. It further assumes that such
unknown facts would have been of a nature to undermine the jury‟s confidence in the
victims‟ testimony. We will not assume there are such facts or that the trial court would
have exercised its discretion to admit such unknown facts. Therefore, the defendant has
failed to establish that he would have obtained a better result absent trial counsel‟s
alleged deficiency.
       The defendant‟s ineffective assistance of counsel argument is without merit.
                                              II
                             Alleged Prosecutorial Misconduct
       The defendant claims that the prosecutor made three statements during closing
argument that violated his due process and confrontation rights. Those statements were:
   1. “What about [T.M.] and [J.M.][?] [D]o they have anything to gain by sitting here
       telling you about their first sexual experience in their life with that man?”
   2. “Now, imagine that [you‟re] seven years old and you are not talking about your
       last sexual experience. You are talking about your very first with a grown man . . .
       .”
   3. “These girls have lost a lot. They‟ve lost their virginity, lost probably self
       respect.”
       The defendant forfeited his argument that these statements constituted prejudicial
misconduct because he failed to make a timely objection to any of them or to ask for a
jury instruction that the statements should be disregarded. In any event, they were not
prejudicial.
       A.      Law Concerning Prosecutor‟s Conduct
       “The standards governing review of misconduct claims are settled. „A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial

                                             11
with such “ „unfairness as to make the resulting conviction a denial of due process.‟ ”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial.‟ [Citation.]”
(People v. Friend (2009) 47 Cal.4th 1, 29 (Friend).)
       “ „A defendant may not complain on appeal of prosecutorial misconduct unless in
a timely fashion, and on the same ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the perceived impropriety.‟
[Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966; see Friend, supra, 47 Cal.4th
at p. 29.) Where, as here, counsel did not object at trial to alleged prosecutorial
misconduct, the defendant may argue on appeal that counsel‟s inaction violated his
constitutional right to effective assistance of counsel. (People v. Lopez, supra, 42 Cal.4th
at p. 966.) Therefore, we address the merits of the defendant‟s claim despite the lack of
an objection below. However, if the prosecutor‟s comments were not improper, there
was no basis for an objection by trial counsel and the claim of ineffective assistance of
counsel fails. (Id. at p. 968.)
       “ „To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.‟ [Citation.]” (People v.
Wilson (2005) 36 Cal.4th 309, 337.) “ „[W]e “do not lightly infer” that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor‟s statements.
[Citation.]‟ [Citation.]” (Id. at p. 338.) “A prosecutor is given wide latitude during
closing argument. The argument may be vigorous as long as it is a fair comment on the
evidence, which can include reasonable inferences or deductions to be drawn therefrom.”
(People v. Harrison (2005) 35 Cal.4th 208, 244.) Further, although a defendant may
single out certain comments made by the prosecutor during argument in order to
demonstrate misconduct, as the reviewing court we “must view the statements in the
context of the argument as a whole.” (People v. Cole (2004) 33 Cal.4th 1158, 1203.)

                                             12
       B.     Analysis
       As noted, the defendant, by failing to object, forfeited his argument that the
prosecutor‟s comments constituted misconduct. However, he also claims trial counsel
was constitutionally deficient for failing to object. Therefore, we consider whether the
comments were prejudicial. We conclude that they were not.
       The defendant made the same arguments concerning the prosecutor‟s comments in
a motion for new trial. The trial court, which of course observed the trial, denied the
motion. The court‟s analysis of the prosecutor‟s comments is instructive. Therefore, we
will quote the trial court‟s ruling and then consider each of the defendant‟s arguments.
              1.     Comment About First Sexual Experience
       The trial court stated:
       “The comment was alleged to have been a misstatement of fact because the
victims were known to have had sexual experiences with others before their contact with
the defendant. [¶] In fact, the statement made by the prosecutor is true because there was
no concrete evidence to suggest that either victim had engaged in any sexual contact with
the third person before the defendant. And, although, vague references to CPS records
alluded to possible sexual contact or sexualized behavior, there was absolutely no
evidence presented to confirm those allegations.”
       Apparently ignoring the trial court‟s ruling about this statement, the defendant
states on appeal: “[T]his statement was highly misleading and inflammatory. In
addition, the prosecutor knew the statement to be untrue.” (Boldface type omitted.) As
the trial court noted, however, there was no concrete evidence to support the prior-sexual-
contact allegations. Accordingly, the defendant‟s argument is without merit.
              2.     Comment About First Sexual Experience with a Grown Man
       The trial court stated:
       “The statement is simply designed to acquaint the jury with the stress the victims
were under when asked to describe matters of a sexual nature to a jury of strangers. [¶]

                                             13
The preceding paragraph has -- and I‟m referring to the transcript -- has the district
attorney telling the jury [a] „story‟ from a recent training designed to illustrate that very
point. The quoted sentence was simply the last line of the [prosecutor‟s] comments
addressing the point that child sexual victims are put under significant and considerable
stress in testifying in a courtroom before strangers.”
       On appeal, the defendant argues that the prosecutor: (1) impermissibly asked the
jurors to put themselves in the victims‟ position and (2) knowingly made a false
statement of fact concerning this being the victims‟ first sexual experience. We have
already addressed the second argument (it was not a misstatement of fact, based on the
evidence), and the first argument is likewise without merit.
       The defendant cites two cases from other jurisdictions for the proposition that the
prosecutor should not ask the jurors to put themselves in the place of the victim. (See
Mills v. United States (D.C. 1991) 599 A.2d 775, 787 [misconduct, though harmless, for
prosecutor to invite jury to think of victim‟s suffering]; Settles v. United States (D.C.
1992) 615 A.2d 1105, 1113 [misconduct, though harmless, to invite the jury to consider
victim‟s promising future].) We need not attempt to apply these foreign cases, which
found the misconduct harmless and do not bind us in any event, to this case because,
under the California standard, this statement did not result in a fundamentally unfair trial
or involve deceptive or reprehensible tactics. (Friend, supra, 47 Cal.4th at p. 29.) In
context, it was innocuous.
              3.      Comment About Loss of Their Virginity
       The court stated:
       “It‟s argued that the statement is false because it was contradicted by the girls‟
own testimony. It‟s unclear if the statement was meant to be taken literally [or] simply
figuratively. If the former, then the defense is correct, it was not necessarily supported by
the actual evidence. [¶] However, the Court has taken the comment to be at best



                                              14
figurative in that the defendant robbed the victims of a sense of purity or innocence
through his actions. That fact was proven true leaving the analogy to be harmless.”
       On appeal, the defendant complains that the prosecutor‟s comment was a
misstatement of fact. This argument is frivolous. As the trial court noted, the comment
as a figurative reference to what was done to the victims was supported. It was within the
latitude granted the prosecutor in argument and was neither deceptive nor reprehensible.
(See People v. Thomas (2012) 53 Cal.4th 771, 822 [prosecutor given wide latitude in
argument].)
       Because the prosecutor‟s comments were unobjectionable or harmless, the
performance of the defendant‟s trial counsel was not constitutionally deficient for not
objecting.
                                             III
                                Alleged Cumulative Error
       The defendant contends that the errors he complains of on appeal cumulatively
require reversal. Since we have found no error, we need not consider whether the
cumulative effect of such asserted errors requires reversal.


                                      DISPOSITION
       The judgment is affirmed.


                                          NICHOLSON            , Acting P. J.

We concur:



      MAURO            , J.



      MURRAY           , J.


                                             15
