Filed 7/3/13 P. v. Augustus CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D060939

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE 304177)

TREVOR BERNE AUGUSTUS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.

Cookson, Judge. Affirmed.

         Marianne Harguindeguy-Cox, under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       A jury found Trevor Berne Augustus guilty of two counts of committing a lewd

act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). The trial court

sentenced Augustus to five years in prison.

       On appeal, Augustus claims that the trial court erred in admitting statements he

made to a pastor and to a member of his church, in which he admitted that he had

molested the victim. Augustus also claims that the prosecutor violated his constitutional

rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny by failing to

timely disclose a prosecution witness's prior misdemeanor conviction. Finally, Augustus

claims that the trial court erred in admitting a recording of a police interview of the

victim during which the victim disclosed the molestations.

       We affirm the judgment.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The People's evidence

       In early 2010, Augustus lived with his wife, Michelle and their adopted children,

12-year-old M.B. and her brother. Augustus's mother, Barbara Augustus (Barbara), also

lived on the property.

       In the spring of 2010, Augustus took M.B. on a two-night camping trip. On the

second night, while M.B. was in her sleeping bag in the tent, Augustus touched M.B.'s

breasts and vagina, both over and under her clothing and bra. The touching lasted for

                                              2
about 30 minutes. One weekend after the camping trip, at around 4:00 a.m., Augustus

entered M.B.'s bedroom and touched her chest and vagina for about 10 minutes.

Augustus also touched M.B.'s breast and vagina under and over her clothing on two other

mornings when he entered her bedroom to wake her up.

       On the afternoon following the last incident, M.B. told Michelle that Augustus had

touched her chest area and "private," and that it made her feel uncomfortable. M.B. also

told Barbara that Augustus had touched her that morning and gestured with her hand

toward her vaginal area.

       Barbara confronted Augustus, asking him, "[W]ere you feeling [M.B.] up?"

Augustus sobbed and said, "[N]o—I guess [you] know—yeah." Augustus also admitted

to Barbara that he had touched M.B. in the groin area during the camping trip. Barbara

advised Augustus to seek spiritual guidance from a pastor.

       On April 19, 2010, Augustus called Sean Speed, a member of, and volunteer at,

the Bethel Assembly Christian Church in Alpine. Speed met with Augustus, who

appeared distraught, remorseful, and a "little bit fearful." Augustus told Speed that he

was a "child molester," that he had touched M.B. inappropriately when she was sleeping

at night, and that he felt bad about it. Speed testified that Augustus told him that M.B.

was becoming beautiful and that she was adopted.

       The next day, April 20, Augustus called associate pastor Craig Osborne of the

Bethel Christian Assembly Church and told Osborne that he wanted to meet with him.

Osborne met with Augustus in Osborne's office at the church. Augustus told Osborne

that Michelle and Barbara had confronted him about an incident with M.B. Augustus

                                             3
also told Osborne that he had touched M.B. inappropriately on three occasions while she

was in her room and Augustus thought she was sleeping. Augustus said that he enjoyed

touching M.B. and that it excited him. Augustus also told Osborne that M.B. was getting

older and more mature, and mentioned that she was adopted.

      On April 21, Osborne reported Augustus's conduct to Child Protective Services.

Detective Heather Czerwinski of the San Diego County Sheriff's Department

subsequently interviewed Michelle, Barbara, Augustus and M.B. Barbara told Detective

Czerwinski that M.B. had disclosed to her that Augustus had touched her vaginal area.

M.B. told Detective Czerwinski about Augustus's molestation of her on the camping trip.

M.B. also told the detective that Augustus had molested her on several occasions during

the early morning hours in her bedroom. M.B. explained that during the molestations in

her bedroom and on the camping trip, Augustus would touch her vagina and breasts.

B.    The defense

      Augustus testified on his own behalf. Augustus said that he snuggled, cuddled and

tickled M.B. on the camping trip, but denied having done anything sexual to her, and

specifically denied touching her breasts and vagina. Augustus also testified that he would

awaken M.B. in the morning for school by playing music and then nudging, shaking,

pushing and poking her. If she was awake but not getting out of bed, he would tickle her

neck, stomach and sides. Augustus maintained that he had never done anything sexual

with M.B.




                                            4
                                             III.

                                       DISCUSSION

A.     The trial court did not err in admitting statements that Augustus made to
       Speed and Osborne

       Augustus claims that the trial court erred in admitting the statements he made to

Speed and Osborne. Specifically, Augustus claims that the trial court violated his right to

due process by determining the admissibility of his statements to Speed without holding

an evidentiary hearing, and that the trial court erred in denying his motion in limine to

exclude his statements to Osborne pursuant to the penitent-clergy privilege.

       1.     Factual and procedural background

       Prior to trial, defense counsel filed a motion in limine to exclude all statements

that Augustus made to both Speed and Osborne. Augustus claimed that all of these

statements were inadmissible pursuant to the penitent-clergy privilege. The prosecutor

filed a trial brief in which she requested that the trial court deny Augustus's motion in

limine in its entirety. The prosecutor argued that Augustus's statements to Speed were

admissible because Speed is not a clergy member, and the penitent-clergy privilege

therefore does not apply to communications between Augustus and Speed. The

prosecutor contended that Augustus's statements to Osborne were not privileged because

in order for the privilege to apply, the member of the clergy must have a duty, under the

tenets of his church, to keep secret communications between a parishioner and a member

of the clergy, and the tenets of Osborne's church do not mandate that disclosures such as

Augustus's be kept secret.


                                              5
       During a pretrial hearing, the trial court discussed the in limine motion with

counsel and stated, "Tentatively, it seemed like privileged conversations in both instances

[i.e., with respect to Augustus's statements to Osborne and with respect to Augustus's

statements to Speed]." However, the court stated that there was a question as to whether

the tenets of Osborne's church mandated that disclosures such as those at issue in this

case be kept secret. The court indicated that it would conduct an Evidence Code section

402 hearing1 concerning the tenets of Osborne's church with respect to this issue, and

that it would hold a separate hearing with respect to the statements made to Speed at a

later date, if necessary.2

       Later that day, the trial court held a section 402 hearing. At that hearing, the

prosecutor asked Osborne, "And in your job description or in any tenet of the church as

far as consulting with your main pastor, if someone were to disclose something like

molesting or hurting a child, do you know, is there a policy in your church or a tenet in

your church of what you do in that situation?" Osborne replied:

           "As pastors on staff, we're all under the same understanding
           of . . . being mandated reporters, so when we hear things like that
           when something is done to a minor, then we all understand that we

1      All further statutory references are to the Evidence Code unless otherwise
specified.
       Section 402, subdivision (b) provides, "The court may hear and determine the
question of the admissibility of evidence out of the presence or hearing of the jury; but in
a criminal action, the court shall hear and determine the question of the admissibility of a
confession or admission of the defendant out of the presence and hearing of the jury if
any party so requests."

2     In her trial brief, the prosecutor noted that Speed and Osborne are members of the
same church.
                                              6
           are legally bound to report that. When someone comes for
           counseling, there is a reasonable expectation of confidentiality that
           we won't turn and as we walk out the door tell somebody. But there
           is nothing stat[ing] I can't say anything or talk to anybody."

       The prosecutor then asked, "So you don't say that to someone that speaks to you,

''[W]hatever you tell me I'm not going to tell anybody?' " Osborne responded, "No, no,

no."

       On cross-examination, defense counsel asked, "At least there's a reasonable

expectation that the things people come to tell you are told in a confidential nature,

correct?" Osborne responded, "Yes, unless it's deemed illegal, broken [sic] a law

concerning—specifically concerning a minor."

       Osborne testified that after his conversation with Augustus, he talked with the

senior pastor at his church and asked, " 'Hey, you know, what do I do with this

information?' " Osborne explained that the senior pastor told him that "his understanding

was I needed to report it."

       At the conclusion of the hearing, the trial court ruled that all of the statements that

Augustus made to Osborne were admissible. The court reasoned that "the tenets of this

church require[d] the pastor . . . to disclose." The court also ruled that Augustus's

statements to Speed were admissible, reasoning that Speed is not a priest or minister

under section 1030.3



3       Section 1030 provides, "As used in this article, a 'member of the clergy' means a
priest, minister, religious practitioner, or similar functionary of a church or of a religious
denomination or religious organization."

                                               7
       2.      The trial court did not violate Augustus's right to due process in
               determining the admissibility of the statements that he made to Speed
               without holding an evidentiary hearing

       Without citation to any relevant authority, Augustus claims that the trial court

violated his "federal due process rights"4 in admitting the statements he made to Speed

without first holding an evidentiary hearing. We are not aware of any authority that

supports Augustus's contention that due process requires such a hearing. On the contrary,

in People v. Hoyos (2007) 41 Cal.4th 872 (Hoyos), the California Supreme Court rejected

a defendant's claim that a trial court violated his right to due process by determining the

admissibility of his codefendant's (Alvarado) admissions to a jailhouse informant

(Jimenez) without holding an evidentiary hearing:

            "Nor was the trial court required to hold an evidentiary hearing on
            federal due process grounds. . . . [U]nder the federal due process
            clause, a defendant has a right to an evidentiary hearing on the issue
            of his confession's voluntariness. [Citations.] Although the Jimenez
            statements reported Alvarado's admissions, defense counsel never
            raised the issue of the voluntariness of Alvarado's admissions to
            Jimenez. Rather, defense counsel claimed Jimenez's statements
            were inherently unreliable because Jimenez was a jailhouse



4       Augustus does cite to portions of section 402. To the extent that Augustus claims
that the trial court violated section 402, subdivision (b), we reject that argument, as well.
"[S]ubdivision (b) of Evidence Code section 402 does not mandate . . . that a court must
hold an evidentiary hearing on request. Subdivision (b) states only that if a court holds
an evidentiary hearing concerning the admissibility of a confession or admission, then it
must do so outside the presence of the jury, if any party so requests." (Hoyos, supra, 41
Cal.4th at p. 897.)
        It is undisputed that the trial court did not hold an evidentiary hearing concerning
the admissibility of Augustus's statements to Speed in the presence of the jury, but rather,
determined the admissibility of Speed's statements outside the presence of the jury. (See
pt. III.A.1., ante.) Thus, the trial court did not violate section 402, subdivision (b) in
determining the admissibility of Augustus's statements to Speed.
                                              8
            informant. Therefore, the due process cases defendant cites are
            inapplicable." (Id. at p. 897.)

       As in Hoyos, Augustus did not raise any claim in the trial court, and has not raised

any claim in this court, that the statements he made to Speed were involuntary.

Accordingly, we reject Augustus's claim that his right to federal due process required that

the trial court hold an evidentiary hearing prior to determining the admissibility of his

statements to Speed.5

       3.      The trial court did not err in admitting Augustus's statements to Osborne

               a.     Governing law

       Sections 1030 through 1035 define the penitent-clergy privilege. Section 1033

provides in relevant part:

            "[A] penitent, whether or not a party, has a privilege to refuse to
            disclose, and to prevent another from disclosing, a penitential
            communication if he or she claims the privilege."

       Sections 1031 and 1032 define "penitent" and "penitential communication" as

follows:

            "As used in this article, 'penitent' means a person who has made a
            penitential communication to a member of the clergy." (§ 1031.)

            "As used in this article, 'penitential communication' means a
            communication made in confidence, in the presence of no third


5      In his reply brief, Augustus contends that the trial court's ruling with respect to the
admissibility of his statements to Speed is not supported by substantial evidence. It is
well settled that, " ' "points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before. . . ." '
[Citation.]" (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847, 894, fn. 10.) Augustus fails to present any reason why he did not raise
this contention in his opening brief. Accordingly, we decline to consider this claim.
                                               9
           person so far as the penitent is aware, to a member of the clergy
           who, in the course of the discipline or practice of the clergy
           member's church, denomination, or organization, is authorized or
           accustomed to hear those communications and, under the discipline
           or tenets of his or her church, denomination, or organization, has a
           duty to keep those communications secret." (§ 1032.)

       In Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131

Cal.App.4th 417 (Roman Catholic Archbishop), the court summarized the requirements

for a statement to qualify as privileged pursuant to the penitent-clergy privilege:

           " 'In order for a statement to be privileged, it must satisfy all of the
           conceptual requirements of a penitential communication: 1) it must
           be intended to be in confidence; 2) it must be made to a member of
           the clergy who in the course of his or her religious discipline or
           practice is authorized or accustomed to hear such communications;
           and 3) such member of the clergy has a duty under the discipline or
           tenets of the church, religious denomination or organization to keep
           such communications secret. [Citations.]' [Citation.]" (Id. at pp.
           443-444, italics omitted.)

       "[I]n this context, the privilege-claimant 'has the initial burden of proving the

preliminary facts to show the privilege applies.' [Citation.] 'Once the claimant

establishes the preliminary facts . . . , the burden of proof shifts to the opponent of the

privilege. . . . [Citation.]' [Citation.]" (Roman Catholic Archbishop, supra, 131

Cal.App.4th at p. 442, fn. and italics omitted.)

       An appellate court reviews "the trial court's privilege determination under the

substantial evidence standard. ' " 'When the facts, or reasonable inferences from the

facts, shown in support of or in opposition to the claim of privilege are in conflict, the

determination of whether the evidence supports one conclusion or the other is for the trial

court, and a reviewing court may not disturb such finding if there is any substantial


                                              10
evidence to support it [citations].' " [Citation.] Accordingly, unless a claimed privilege

appears as a matter of law from the undisputed facts, an appellate court may not overturn

the trial court's decision to reject that claim.' [Citation.]" (Roman Catholic Archbishop,

supra, 131 Cal.App.4th at pp. 442-443.)

              b.     Application

       In discussing the tenets of his church, Osborne testified that "there is nothing

stat[ing] I can't say anything or talk to anybody," with respect to statements made by a

parishioner during a church counseling session. Osborne also stated that he never tells

individuals involved in such sessions that what they say during the sessions will be

received in confidence. Further, while Osborne agreed with defense counsel that a

person participating in a church counseling session would generally have a "reasonable

expectation of confidentiality," Osborne clarified that this expectation would not apply if

the person were to make statements about having engaged in illegal conduct, particularly

if the illegal conduct involved a minor.

       Osborne's testimony constitutes substantial evidence to support the trial court's

ruling that the statements Augustus made to Osborne were admissible, since the tenets of

Osborne's church do not include "a duty to keep those communications secret." (§ 1032.)

B.     The prosecutor did not violate Augustus's right to due process or his right to
       confront adverse witnesses by failing to disclose that Speed had previously
       suffered a misdemeanor conviction

       Augustus claims that the prosecutor violated his right to due process and his right

to confront adverse witnesses by failing to disclose that Speed had previously suffered a

misdemeanor conviction.

                                             11
       1.        Factual and procedural background

       During the trial, after Speed testified, the prosecutor advised the court outside the

presence of the jury that defense counsel had contacted her the previous evening

concerning the possibility that Speed had suffered a prior "felony sexual conviction."

The prosecutor stated that in response to counsel's inquiry, she instructed a paralegal in

her office to "run the FBI raps," and that she learned that Speed had suffered a 2004

misdemeanor conviction in Utah for "criminal mischief." The prosecutor stated that

Speed had been required to pay a $200 fine and that he had not been placed on probation.

       The prosecutor informed the court and defense counsel that she asked Speed about

the conviction. According to the prosecutor, in describing the circumstances of the facts

underlying the conviction, Speed stated that he had been talking to someone who was

refusing to listen to him. Speed said that he closed a door and told the person that the

person was going to " 'hear him out.' " Speed told the prosecutor that in lieu of fighting

charges related to his conduct, he paid a $200 fine. The prosecutor also stated that her

office had contacted the district attorney's office in Utah, and that office had confirmed

Speed's conviction. The prosecutor added that the Utah district attorney's office did not

think that a police report had been prepared, and said that they had been unable to locate

such a report.

       The court responded, "It sounds like you did as much as you possibly could given

the short notice." Defense counsel stated, "I'm satisfied it would not have [risen] to an

impeachable area."



                                             12
       After defense counsel's closing argument, the prosecutor advised the court and

defense counsel that she had just received a copy of a Utah police report concerning the

incident giving rise to Speed's conviction. The report described an incident during which

Speed had helped a woman who was having car trouble take her car to a garage for

repairs. According to the report, after the woman refused Speed's request to have sex,

Speed masturbated to the point of ejaculation in front of the woman in a closed room at

the garage. The woman was afraid and felt that she could not leave. Speed was

convicted of criminal mischief based on his conduct.

       Defense counsel asserted that if she had known about Speed's conviction, she

would have "want[ed] to have impeach[ed] him on that." The court and counsel

proceeded to have extensive discussions concerning the circumstances of the prior

conviction, Speed's testimony in this case, Speed's failure to accurately describe the prior

conviction to the prosecutor, and the fact that the prosecutor had been unable to locate

Speed for potential further proceedings. In the wake of these discussions, the court stated

that it was contemplating holding a section 402 hearing with Speed for the purpose of

learning more about the conviction. However, the court ultimately ruled, pursuant to

section 352, that the court would limit any evidence pertaining to the conviction to a

possible stipulation to be entered into between the parties. The court reasoned:

          "I'm going to deny it,[6] [section] 352. I find as I go
          through . . . probing this, it's going to be very difficult to limit both


6      The court's reference to "deny[ing] it," is apparently a reference to Augustus's
request to be permitted to conduct additional cross-examination of Speed pertaining to
the conviction.
                                              13
           sides to the matter at hand, whether or not he was convicted of a
           2004 misdemeanor—of moral turpitude. . . . And it has nothing to
           do with the timeliness of it.[7] I'm willing to wait. It's just that I'm
           fearful that we're going to end up in a circus based upon what has
           happened so far. So I want to do the right thing, but it's obvious to
           me it's not going to be the right thing because we're going to go far
           afield and [put] Mr. Speed on trial, and I don't want to do that.

           "So if you two want to huddle and talk about a stipulation that the
           Court would feel comfortable taking that I can say or I believe Mr.
           Speed would agree that this was the conduct he engaged in [in]
           2004, I will accept that stipulation. I will read it into the
           record . . . ."

       The parties subsequently agreed to a stipulation pertaining to Speed's conviction

and the court read the stipulation to the jury. The stipulation provided:

           " 'In 2004 Sean Speed suffered a conviction . . . out of the state of
           Utah for a Class B misdemeanor of criminal mischief—lewd
           conduct that is public masturbation. This evidence is offered for the
           limited purpose of determining whether the witness had engaged in
           conduct that reflected on his . . . believability.' "

       After reading the stipulation to the jury, the trial court permitted defense counsel

to reopen her closing argument for the purpose of addressing the subject matter of the

stipulation. Defense counsel argued to the jury that Speed's suggestion that appellant was

using the fact that his daughter was adopted as a justification for the molestation reflected

       Speed's "little, sick, twisted mind." Defense counsel also argued that Speed was

not credible in light of this prior conviction.




7       By discussing the "timeliness of it," the court was apparently referring to the fact
that information about the events underlying Speed's conviction had not been discovered
until closing arguments.
                                              14
       2.      Governing law

       In People v. Whalen (2013) 56 Cal.4th 1, 64 (Whalen), the California Supreme

Court summarized the following principles of law that govern a claim under Brady,

supra, 373 U.S. 83 and its progeny:

            " 'The federal due process clause prohibits the prosecution from
            suppressing evidence materially favorable to the accused. The duty
            of disclosure exists regardless of good or bad faith, and regardless of
            whether the defense has requested the materials. [Citations.] The
            obligation is not limited to evidence the prosecutor's office itself
            actually knows or possesses, but includes "evidence known to the
            others acting on the government's behalf in the case, including the
            police." [Citation.] [¶] For Brady purposes, evidence is favorable if
            it helps the defense or hurts the prosecution, as by impeaching a
            prosecution witness. [Citations.] Evidence is material if there is a
            reasonable probability its disclosure would have altered the trial
            result. [Citation.] Materiality includes consideration of the effect of
            the nondisclosure on defense investigations and trial strategies.
            [Citations.] Because a constitutional violation occurs only if the
            suppressed evidence was material by these standards, a finding that
            Brady was not satisfied is reversible without need for further
            harmless-error review. [Citation.]' [Citation.]" (Whalen, supra, at
            p. 64, italics added.)

       3.      Application

       On appeal, Augustus argues that the prosecutor's failure to disclose information

concerning Speed's conviction violated his right to due process under Brady as well as his

right to confrontation. Specifically, Augustus contends that if the prosecutor had timely

disclosed the conviction, "It would have enabled [defense counsel] to properly cross-

examine Speed as to the underlying facts of his conviction as well as the false

information he gave to the prosecutor regarding it." Augustus also argues, "Had the




                                              15
evidence underlying Speed's conviction been introduced at trial, it would have rendered

[Speed's] testimony biased and unconvincing."

       As noted above, the trial court ruled that, pursuant to section 352, the sole

evidence of Speed's prior conviction that the court would admit at trial would be a

stipulation entered into between the parties concerning the circumstances of that

conviction. Augustus does not claim on appeal that the trial court erred in so ruling.

Augustus has not established that the prosecutor's failure to disclose Speed's conviction

earlier in the proceedings was prejudicial, since, in light of the court's section 352 ruling,

the trial court would not have admitted any additional evidence pertaining to that

conviction in any event.

       Further, even assuming that the trial court would have permitted the defense to

offer additional evidence pertaining to the conviction if the prosecutor had disclosed the

conviction at an earlier point in the proceedings, reversal still would not be required.

Most fundamentally, even assuming that the jury would have entirely disregarded Speed's

testimony in light of additional information concerning the 2004 misdemeanor

conviction, Speed's testimony was far from the only evidence that Augustus committed

the charged offenses. Among other evidence, the jury heard M.B.'s recorded statements

to Detective Czerwinski that Augustus had molested her (see part III.C., ante), and M.B.'s

grandmother's recorded statement to law enforcement officers that M.B. had indicated

through gestures that Augustus had touched her vaginal area. The jury also heard the

grandmother's recorded statement that Augustus admitted to her that he had touched

M.B.'s groin area on the camping trip. Associate pastor Osborne also testified that

                                              16
Augustus admitted to him that he had touched M.B. inappropriately on three occasions,

and that the touching had excited Augustus. In light of this evidence, there is no

" 'reasonable probability . . . disclosure [of the prior conviction] would have altered the

trial result. [Citation.]' " (Whalen, supra, 56 Cal.4th at p. 64.)

       Accordingly, we conclude that the prosecutor did not violate Augustus's

constitutional rights by failing to disclose earlier in the proceedings that Speed had

suffered a prior misdemeanor conviction.

C.     The trial court did not abuse its discretion in admitting a recording of M.B.'s
       police interview in evidence

       Augustus contends that the trial court abused its discretion in admitting in

evidence an audio recording of Detective Czerwinski's interview of M.B. Augustus

claims that the trial court erred in failing to redact Detective Czerwinski's statements

from the interview on the ground that her statements constitute hearsay. Augustus also

claims that the trial court erred in concluding that statements that M.B. made during the

interview were admissible as prior inconsistent statements. Finally, Augustus contends

that the trial court erred in denying his motion to exclude the interview on the ground that

its probative value was substantially outweighed by the risk of undue prejudice.

       We apply the abuse of discretion standard of review to these claims. (See e.g.,

People v. Williams (1997) 16 Cal.4th 153, 197 ["On appeal, a trial court's decision to

admit or not admit evidence . . . is reviewed only for abuse of discretion"].)




                                              17
       1.     Factual and procedural background

              a.      Augustus's motion to exclude statements made by Detective
                      Czerwinski during her interview of M.B.

       Prior to trial, Augustus filed a motion to exclude "superfluous statements by law

enforcement officers during the interviews of witnesses." Augustus argued that the

detectives had "interject[ed] personal feelings or opinions into the interviews . . . [and]

interpret[ed] the meaning of other hearsay statements." As an example, Augustus noted

that during Detective Czerwinski's interview with M.B., the detective stated, "[I]t takes a

lot of guts to do what you did. And you know what? It's a good thing that you did

because I'll tell you why. I've been doing this job a long time[.] If you didn't, it would

have gotten worse." Augustus argued that these statements were irrelevant, constituted

hearsay, and should be excluded pursuant to section 352.

       In their trial brief, the People argued that the defense was attempting to "piecemeal

[sic] the recordings and only introduce portions of them because [Augustus] is not in

agreement with the mode of questioning of Detective[] Czerwinski . . . ." The People

argued that "[t]he jury has the right to listen to each recording in its entirety and

determine for themselves what weight and credibility to give each." The People further

contended that "eliminating certain statements made by the detective may lead the jury to

speculate as to what was said and [would] not be an accurate representation of the

conversation."

       During a pretrial hearing, the trial court ruled that the entire interview was

admissible.


                                              18
              b.     Augustus's motion to exclude statements made by M.B. during her
                     interview with Detective Czerwinski

       At trial, M.B. acknowledged that she told Detective Czerwinski both that

Augustus had touched her breasts and vagina while the two were on a camping trip and

that Augustus had engaged in similar conduct on approximately four other occasions in

her bedroom at her house. However, M.B. testified that she now realized that Augustus

had not molested her in fact, and said that she had been dreaming with respect to each

incident that she had reported.8

       After M.B. testified, Augustus filed a motion to exclude all of the statements that

M.B. made during her interview with Detective Czerwinski on the ground that the

statements were not inconsistent with her trial testimony.9 In the same motion, the

defense argued that M.B.'s interview statements should be excluded as cumulative

because "the defense anticipates that multiple witnesses will testify as to the statements

the victim made during pretrial interviews with social workers, therapists, and police."

Augustus also argued that the statements should be excluded pursuant to section 352

because "the recording's probative value may be relevant in so much as it goes to




8      During another portion of her testimony, when asked by the prosecutor whether
Augustus had touched her "breast or vaginal area" during the camping trip, M.B.
responded, "I do not think so." In addition, during another segment of M.B.'s testimony,
the prosecutor asked, "Did your dad touch your breasts and vagina again while at home?"
M.B. responded, "I do not remember."

9      Augustus did not identify any specific statements that he sought to exclude, but
rather stated, "Because the entire recording is not a single inconsistent statement[,] the
consistent portions of the tape are inadmissible hearsay and should be excluded."
                                             19
impeach the credibility of the victim, but its probative value is significantly diminished

because there is no necessity of proving the issue by this particular piece of evidence."

       At a hearing on Augustus's motion, defense counsel argued that none of the

statements that M.B. made during her interview were admissible as inconsistent

statements because, at trial, M.B. admitted having made the statements. The People

argued that M.B.'s interview statements in which she provided details of the various

molestations were admissible because they were inconsistent with her trial testimony, in

which she claimed that she now realized that Augustus had not in fact molested her, and

that she had only been dreaming.

       The trial court denied the motion, and ruled that the People would be permitted to

play the interview in its entirety. The court reasoned:

          "[T]he Court finds that this audiotape would be inconsistent in large
          part with the victim's testimony. And the Court is not going to order
          you to part and parcel statements and splice them up because then
          the Court's concern would be the potential error in taking statements
          out of context."

       The court also ruled that the interview should not be excluded on the ground it was

cumulative of other evidence, and that the probative value of the interview outweighed

the possibility of prejudice stemming from its admission.

       After the court ruled, the People played an audiotape of Detective Czerwinski's

interview of M.B. During the interview, M.B. stated that Augustus had touched her

vagina and her chest while the two were staying in a tent together on a camping trip.

M.B. also said that Augustus had come into her bedroom while she was sleeping on

approximately four occasions and touched her vagina and chest.

                                             20
         2.    The trial court did not abuse its discretion in admitting statements that
               Detective Czerwinski made during the interview

         Augustus claims that the trial court erred in admitting Detective Czerwinski's

statements in evidence on the ground that these statements constituted inadmissible

hearsay. In his brief, Augustus lists a series of statements that he contends "should have

been redacted." The statements include Detective Czerwinski telling M.B. that Augustus

had been "honest" in a police interview and that it was a "good thing" that Augustus had

"admitted it was his fault." In addition, Augustus claims that questions such as, "Do you

think [Augustus] should be arrested?" and "I mean do you think it's right what your dad

did?" should have been redacted. Augustus argues that the "audiotape as well as the

transcript were out-of-court statements of the detective at the interview, introduced for

their truth (i.e., to show the nature of appellant's fault for the underlying charges against

him)."

               a.     Governing law

         "Hearsay evidence," defined as " 'evidence of a statement that was made other than

by a witness while testifying at the hearing and that is offered to prove the truth of the

matter stated,' " is generally inadmissible. (§ 1200, subd. (a), italics added.) "Evidence

of an out-of-court statement is . . . admissible if offered for a nonhearsay purpose—that

is, for something other than the truth of the matter asserted—and the nonhearsay purpose

is relevant to an issue in dispute. [Citations.] For example, an out-of-court statement is

admissible if offered solely to give context to other admissible . . . statements." (People

v. Davis (2005) 36 Cal.4th 510, 535.)


                                              21
               b.     Application

       While Augustus contends that Detective Czerwinski's statements were offered for

their truth, he points to nothing in the record that would indicate that this is the case.

Further, Augustus does not suggest that the trial court refused to instruct the jury that the

detective's statements were not admissible for their truth. Given that Detective

Czerwinski was interviewing M.B., the trial court could reasonably have determined that

the detective's statements were admissible for the nonhearsay purpose of providing

context for M.B. statements. (See People v. Davis, supra, 36 Cal.4th at p. 535; People v.

Riccardi (2012) 54 Cal.4th 758, 801, fn. 21 ["Detective Purcell's statements were

admitted for the nonhearsay purpose of giving context to Young's answers" given during

police interview].)

       Accordingly, we conclude that the trial court did not abuse its discretion in

refusing to exclude statements that Detective Czerwinski made to M.B. during her police

interview.10

       3.      The trial court did not abuse its discretion in admitting statements that M.B
               made to Detective Czerwinski as prior inconsistent statements

       Augustus claims that the trial court erred in admitting in evidence M.B.'s out-of-

court statements to Detective Czerwinski as prior inconsistent statements.




10    In light of our conclusion, we need not consider the People's contention that
Augustus partially forfeited his claim by failing to specify in the trial court all of the
statements that he sought to exclude.
                                              22
              a.     Governing law

       Section 1235, which pertains to inconsistent statements, provides, "Evidence of a

statement made by a witness is not made inadmissible by the hearsay rule if the statement

is inconsistent with his testimony at the hearing and is offered in compliance with Section

770."11 In People v. Cowan (2010) 50 Cal.4th 401 (Cowan), the Supreme Court

summarized the admissibility of inconsistent statements pursuant to sections 1235 and

770:

          " 'A statement by a witness that is inconsistent with his or her trial
          testimony is admissible to establish the truth of the matter asserted in
          the statement under the conditions set forth in Evidence Code
          sections 1235 and 770.' [Citation] 'The "fundamental requirement"
          of section 1235 is that the statement in fact be inconsistent with the
          witness's trial testimony.' [Citation.] ' "Inconsistency in effect,
          rather than contradiction in express terms, is the test for admitting a
          witness's prior statement. . . . " ' [Citation.]" (Cowan, supra, at p.
          462, fn. omitted.)

              b.     Application

       M.B.'s trial testimony that Augustus had not molested her was plainly inconsistent

with her statements to Detective Czerwinski that Augustus had molested her.

Accordingly, we conclude that the trial court did not abuse its discretion in admitting

statements that M.B. made to the detective as prior inconsistent statements.




11     Augustus does not dispute that the statements at issue were offered in compliance
with section 770.
                                            23
       4.      The trial court did not abuse its discretion in denying Augustus's request to
               exclude the recording of Detective Czerwinski's interview with M.B.
               pursuant to section 352

       Augustus claims that the trial court erred in denying his request to exclude the

interview pursuant to section 352. Augustus claims that the statements that Detective

Czerwinski made during the interview were irrelevant and that admission of the interview

was cumulative in light of M.B.'s admissions at trial that she had previously told

Detective Czerwinski that Augustus had molested her.

               a.     Governing law

       Section 352 provides:

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

       "Under Evidence Code section 352, the trial court enjoys broad discretion in

assessing whether the probative value of particular evidence is outweighed by concerns

of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8

Cal.4th 1060, 1124.) The undue prejudice section 352 seeks to avoid " ' "is not the

prejudice or damage to a defense that naturally flows from relevant, highly probative

evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of

'prejudging' a person or cause on the basis of extraneous factors." ' [Citation.] Painting a

person faithfully is not, of itself, unfair." (People v. Harris (1998) 60 Cal.App.4th 727,

737.) A trial court may exercise its discretion to exclude cumulative evidence, pursuant

to section 352. (See People v. Partida (2005) 37 Cal.4th 428, 436, fn. 2.)

                                             24
              b.     Application

              With respect to statements that Detective Czerwinski made during the

interview, for the reasons discussed above, the trial court reasonably exercised its

discretion to admit those statements in evidence for the purpose of giving context to

M.B.'s interview statements. As to the statements that M.B. made during the interview,

while M.B. acknowledged at trial having made many of the statements, she also testified

that she "tried" to tell Detective Czerwinski that the alleged molestations were just a

dream, by saying "it was foggy." M.B. also testified that she "didn't know how to"

convey to Detective Czerwinski the idea that the molestations were a dream. Under these

circumstances, the probative value of the particular wording that M.B. used to disclose

the molestations to Detective Czerwinski was extremely high. Accordingly, we conclude

that the trial court reasonably exercised its discretion in determining that the probative

value of permitting the jury to hear the actual interview was not substantially outweighed

by the prejudice stemming from the potentially cumulative nature of portions of the

interview.




                                             25
                                    IV.

                                DISPOSITION

    The judgment is affirmed.



                                              AARON, J.

WE CONCUR:



          NARES, Acting P. J.



               O'ROURKE, J.




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