Filed 1/7/14 P. v. Cialini CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056630

v.                                                                        (Super.Ct.No. SWF029540)

GIANNI CIALINI,                                                           OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,

Judge. Affirmed.

         Law Offices of Ronald A. Ziff, Ronald A. Ziff and Abby Bessner Klein for

Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Lynne G.

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury found defendant and appellant Gianni Cialini, guilty of committing a lewd

or lascivious act upon a child under the age of 14 years old. (Pen. Code, § 288, subd.

(a).) The trial court granted defendant formal probation for a period of 36 months, with

the requirement defendant register as a sexual offender. (Pen. Code, § 290.) Defendant

contends (1) the trial court erred by excluding evidence, and (2) the trial court’s

evidentiary rulings violated his constitutional rights of confrontation and due process.

We affirm the judgment.1

                    FACTUAL AND PROCEDURAL HISTORY

       A.     MOLESTATION

       The female victim was born in March 2004. The victim’s mother (Mother)

worked with defendant, and Mother referred to defendant as the victim’s godfather. On

August 16, 2009, when the victim was five years old, Mother went to a concert with her

husband (Husband) in Los Angeles and left the victim and the victim’s one-year-old

sister in the care of defendant and defendant’s girlfriend. At approximately 1:00 a.m.

on August 17, Mother went to defendant’s house in San Jacinto to pick up her children.

       Mother asked defendant, “How well did [the] children do?” Defendant “said

there was an incident.” Defendant explained the victim accused him of “touching her

when they were trying to put her to bed.” Defendant’s girlfriend confirmed that she

heard the victim “hollering” while defendant was trying to put the victim to bed.



       1Defendant has filed a petition for writ of habeas corpus in connection with this
appeal. We dispose of the petition via a separate order.


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       The following morning, on the way to school, Mother told the victim about

defendant informing her of the victim’s allegations. Mother told the victim such

accusations were “serious stuff” and “[p]eople get in big trouble for this.” The victim

responded, “I’m not lying, Mommy.”

       During dinner that night, Husband questioned the victim. The victim said she

was sitting on defendant’s lap while they were playing on the computer and defendant

“put his hand down her pants.” The victim demonstrated how defendant pulled the

victim’s pants away from her body. Mother and Husband called the police.

       On August 19, 2009, a forensic (RCAT) interview was conducted with the

victim. During the interview, the victim said she was sitting on defendant’s lap at a

desk, playing on the computer, when he opened her pants. Defendant placed his finger

in the victim’s vagina, spun his finger around, and moved it “up and down.” Defendant

removed his finger from the victim’s vagina, placed it “close to his nose,” “sniff[ed] it,”

and then placed his finger in his mouth. At trial, the victim recalled defendant touching

her genitals and smelling his finger afterward.

       B.     PRETRIAL MOTION

       Defendant filed a motion in limine seeking to admit evidence of the victim’s

prior false molestation accusation against her stepgrandfather and to cross-examine

witnesses about the prior false accusation. Specifically, the defense had evidence

reflecting Mother told two of her friends that the victim had told Mother her

stepgrandfather inserted his fingers in the victim’s vagina, but Mother did not believe

the victim. The defense asserted that when Mother reported the offense involving


                                             3
defendant, she said the victim described a sexual situation that she could not have

fabricated “‘because she is just a little girl,’” who would not know about such issues.

The defense asserted Mother lied when making this statement because Mother knew the

victim had previously made a false molestation accusation against her stepgrandfather,

thus reflecting the victim had the knowledge to fabricate the allegations against

defendant.

       The trial attorneys and trial judge had “extensive discussions” off the record, in

chambers, concerning the motions in limine. When the trial attorneys and judge

returned to the record, it was to conduct an Evidence Code section 4022 hearing.

Mother testified at the hearing. Mother said the victim had never previously discussed

sexual topics so she was shocked to hear the victim’s allegations against defendant.

       Mother explained that the victim’s grandmother and stepgrandfather, Tony

Carter (Carter), had told Mother that when they were babysitting the victim, Carter went

into the restroom to wipe the victim’s buttocks after a bowel movement and the victim

said, “Oh, Papa stuck his finger in me,” likely referring to her anus. Carter

“overreacted,” denied placing a finger in the victim’s anus, and said “he would never do

that.” Mother never heard the victim’s accusation from the victim, she only heard it

from Carter and Carter’s wife. Mother “dismissed” the accusation against Carter.

       The trial attorneys and trial judge returned to chambers to discuss the issue off

the record. When the attorneys and judge returned to the courtroom, the trial court

       2 All subsequent statutory references will be to the Evidence Code unless
otherwise indicated.


                                             4
explained to defendant that the evidence of the false accusation against Carter was

inadmissible hearsay, since Mother did not have firsthand knowledge of the

accusation—she only heard about the accusation from Carter and Carter’s wife. The

trial court informed defendant there was “no admissible evidence of any such prior

complaint, [so] your lawyer would have to have Mr. [Carter] or Mrs. [Carter], whoever

actually heard the victim say these things, come to court.”

       The trial court told defendant that if he or his trial counsel requested a

continuance in order to locate Carter, then the trial court would grant the request

because it appeared to the court that Mr. and Mrs. Carter “are important witnesses in

this case,” although the court conceded they had not yet been interviewed. After

defendant consulted with his trial attorney, defendant elected not to request a

continuance, instead, defendant went forward with the trial.

       The following day, the trial court summarized the issue. The trial court

explained the parties were making tactical decisions to not call Mr. and Mrs. Carter as

witnesses. The court explained it was excluding the evidence about the Carter

accusation due to it being hearsay—the court did not make a section 352 or relevance

ruling. In regard to the defense witnesses who would testify they did not believe the

accusations against defendant due to Mother informing them about the prior accusations

against Carter, the court ruled both sides would be allowed to have witnesses “state their

general character opinion regarding the truth and veracity of any witness, but that the

testimony will be limited to general opinions of the truth and veracity, and neither side

will be allowed to go into alleged specific instances of dishonesty by any witness.”


                                             5
       In regard to impeachment, the trial court said, “Furthermore, once a witness has

been asked to voice an opinion about some other witness’s truth and veracity generally,

then should either side have evidence that the witness giving the character opinion—

evidence that that witness has expressed inconsistent statements in the past on the

question of character for truth and veracity, that those prior inconsistent statements may

be brought in to not only impeach the character opinion given in court, but also, like any

other prior inconsistent statements, may be brought in . . . as truth of the witness’s true

opinion about the character of the other witness.

       “But because we’re only going to deal with the opinions generally, not opinions

specifically about this particular case and truth or accuracy of this particular allegation,

neither shall either side be able to bring in prior inconsistent statements about witnesses’

opinions about this particular case. Those are off limits. [¶] I think that summarizes

what we’ve decided so far.”

       C.     MOTION FOR NEW TRIAL

       In (1) the argument section of defendant’s motion for new trial, and

(2) defendant’s trial counsel’s declaration in support of the motion for new trial,

information was presented reflecting an off-the-record discussion took place about

perjury evidence. Defendant’s trial counsel, in his declaration, wrote: “The Court was

also apprised that Maria Ruffin would testify that [Mother] was her friend, and that

[Mother] visited Ms. Ruffin one day, unannounced—and contrary to [Mother’s]

statement that they only knew each other through a cancer walk program—and that they

had discussed the allegations against [defendant]. Ms. Ruffin reported that [Mother]


                                              6
told her that she did not believe the allegations, as [the victim] had made false

accusations in the past. When asked by Ms. Ruffin why she did not come forward and

tell the these things [sic], she reported that [Husband] would not allow her to do so.”

Defendant’s trial counsel further declared, “[T]he court ruled that Ms. Ruffin’s

testimony was hearsay, and would not allow it.” The trial court denied defendant’s

motion for a new trial.

                                      DISCUSSION

       A.     ADMISSIBILITY OF EVIDENCE

       Defendant contends the trial court erred by excluding various items of evidence,

such as (1) the testimony of Mother’s two friends who allegedly heard Mother say she

did not believe the victim to be honest due to the prior allegations against Carter; (2) the

cross-examination of Mother related to her prior inconsistent statement concerning the

victim’s dishonesty; and (3) evidence of Mother’s plans to perjure herself. Defendant

asserts the evidence and cross-examination were admissible for a variety of reasons.

       We review the trial court’s evidentiary rulings for an abuse of discretion.

(People v. Her (2013) 216 Cal.App.4th 977, 981.) We address each of defendant’s sub-

arguments in turn.

              1.     INCONSISTENT STATEMENTS

       First, defendant contends the testimony of Mother’s friends and cross-

examination of Mother should have been permitted as prior inconsistent statements. (§

1235.) Specifically, defendant asserts Mother testified at trial that the victim was

honest. Therefore, Mother’s statements to her two friends about not believing the


                                             7
victim due to the victim falsely accusing Carter would have been relevant as being

inconsistent with Mother’s testimony about the victim’s honesty.

       “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.” (§ 1235.) Thus, “[t]he ‘fundamental

requirement’ of section 1235, is that the statement in fact be inconsistent with the

witness’s trial testimony. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1219.)

       During the direct examination of Mother, the following exchange took place:

       “[Prosecutor]: So it’s fair to say, then, that she’s a seven-year-old girl and lies

sometimes. Correct?

       “[Mother]: Correct.

       “[Prosecutor]: And she tells the truth sometimes. Correct?

       “[Mother]: Correct.”

       Given that Mother testified the victim sometimes lied, the trial court could

reasonably conclude the evidence about the victim’s dishonesty would not be

admissible as an inconsistent statement because the evidence was consistent with

Mother’s testimony. In other words, the testimony about the victim’s dishonesty

matched Mother’s testimony, so the trial court could reasonably find the inconsistent

statement law to be inapplicable. Accordingly, the court did not abuse its discretion.

       Second, defendant asserts Mother’s friend would have testified that Mother said

she could not testify truthfully, thus impeaching the totality of Mother’s testimony.

From the court’s ruling, there is nothing indicating Mother’s friend could not have


                                             8
testified about hearing Mother say she planned to perjure herself. The court’s ruling

excluded the Carter allegations, but nothing else, as that was the focus of the motion in

limine. In other words, it does not appear the court’s ruling excluded the defense from

presenting this testimony.

       Defendant’s motion for new trial reflects an off-the-record discussion and ruling

took place regarding the perjury evidence. The only information we have about the

perjury discussion and ruling is derived from (1) defendant’s motion for new trial, and

(2) defendant’s trial counsel’s declaration in support of the motion for new trial. This

perjury information creates a problematic record because it comes from defendant’s trial

counsel’s recollection of a conversation and ruling that occurred off the record. This is

essentially an ex parte settled statement. (Cal. Rules of Court, rule 8.837 [setting forth

the procedure for statements on appeal].) This court cannot conclude the trial court

erred and reverse a judgment based solely upon defendant’s trial counsel’s recollection

of the trial court’s ruling. (Cal. Rules of Court, rule 8.837.) We need a transcript of the

ruling or a statement on appeal. Accordingly, we must affirm on this issue because the

ruling in the record does not appear to have excluded the perjury evidence.

              2.     BASIS OF CREDIBILITY

       Defendant contends the trial court erred by excluding evidence of Mother telling

a friend she would perjure herself because the evidence was admissible as proof of

Mother’s truthfulness.

       A “jury may consider in determining the credibility of a witness any matter that

has any tendency in reason to prove or disprove the truthfulness of his testimony . . .


                                             9
including[:] [¶] . . . [¶] (e) His character for honesty or veracity or their opposites[;] [¶]

(f) The existence or nonexistence of a bias, interest, or other motive[;] [¶] . . . [¶] (j) His

attitude toward the action in which he testifies or toward the giving of testimony[; and]

[¶] (k) His admission of untruthfulness.” (Evid. Code, § 780.)

       Defendant asserts Mother’s friend would have testified that Mother said she

planned to perjure herself because Husband insisted she do so. The trial court’s ruling

reflects: “[W]e’re only going to deal with the opinions generally, not opinions

specifically about this particular case and truth or accuracy of this particular allegation,

neither shall either side be able to bring in prior inconsistent statements about witnesses’

opinions about this particular case. Those are off limits. [¶] I think that summarizes

what we’ve decided so far.”

       Testimony about Mother’s plans to perjure herself would not fall within the

categories of (1) truth or accuracy of the allegations, or (2) prior inconsistent statements

about witnesses’ opinions. Rather, information about perjury would be a basic fact

about Mother’s testimony; it would bear no relation to the allegations or a prior opinion.

As a result, it does not appear that the trial court excluded the testimony about Mother’s

alleged perjury. Thus, we conclude the trial court did not err.3




       3  As set forth ante, it appears from defendant’s motion for new trial that a
specific perjury ruling occurred off the record, but do not have a settled statement
concerning that ruling. Accordingly, we address the perjury issue with the record
before us—a record that does not include the off-the-record perjury ruling.


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              3.     VICTIM CHARACTER EVIDENCE

       Defendant contends the evidence concerning the victim’s prior false allegations

against Carter were admissible as evidence of the victim’s character.

       Section 1103 allows evidence about the victim’s character to be admitted in

certain circumstances, such as when it is offered by the defendant to prove the victim

acted in conformity with the alleged character trait. Defendant’s argument concerning

section 1103 is problematic because the section does not appear to create an exception

to the hearsay rule. Rather, it is an exception to the character evidence rule in section

1101. Since the evidence concerning the victim’s prior allegations against Carter was

excluded because it involved multiple levels of hearsay, defendant’s argument

concerning the character evidence exception is not persuasive because it is off-point.

              4.     STATE OF MIND

       Defendant contends his testimony concerning his knowledge of the victim’s false

allegations against Carter should have been admitted as evidence of his state of mind.

       During defendant’s direct examination, he was questioned about a conversation

he had with his girlfriend, Deidre, on the night the molestation occurred. The following

exchange took place during the examination:

       “[Defense Attorney]: So I’m assuming that when [the victim] got put to bed, you

and Deidre discussed this.

       “[Defendant]: Very, very briefly.

       “[Defense Attorney]: What did you guys talk about?




                                            11
       “[Defendant]: Uh, we basically said that we needed to tell her parents. I mean,

that was—that was the discussion. Very important for us to do that.

       “[Defense Attorney]: Okay. How were you feeling at the time?

       “[Defendant]: We were concerned. We were a little concerned, but, uh—we

knew she had made these kinds of allegations about other people before, so we knew

that it was important to just tell her parents.

       “[Prosecutor]: Objection. Hearsay. Move to strike. Lack of foundation.

       “The Court: The answer is stricken. Lack of personal knowledge.

       “[Defense Attorney]: You hadn’t personally heard her say anything about

anybody before?

       “[Defendant]: No, not me personally.

       “[Defense Attorney]: Okay. So—but in your mind—at least in your mind at the

time, it was important that you let her parents know?

       “[Defendant]: Yes. We cared very very much about [the victim].”

       The trial court sustained the prosecutor’s objection because defendant lacked

personal knowledge concerning the prior false allegations. Section 702 provides a

witness may only testify about matters of which he has personal knowledge. The “state

of mind” rule, upon which defendant is relying, is a hearsay exception. (§ 1250.) This

evidence was excluded due to a lack of personal knowledge—it was not excluded on

hearsay grounds. Thus, defendant’s hearsay argument is not persuasive because it is

off-point.




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       Defendant did not have personal knowledge of the hearsay statement because he

did not observe the victim make the hearsay statement. Thus, it was not a hearsay

problem that required the objection be sustained—it was defendant’s lack of personal

knowledge concerning the hearsay statement. (See People v. Valencia (2006) 146

Cal.App.4th 92, 103 [“‘Courts require that declarants of a hearsay statement have

firsthand knowledge before the hearsay statement is admissible, however. [Citations.]

The party offering a statement has the burden of proving personal knowledge.’

[Citation.]”.) In sum, defendant’s argument about the state of mind exception is not

persuasive.

       B.     CONSTITUTIONAL RIGHTS

       Defendant contends the trial court violated his federal constitutional rights of due

process and confrontation by excluding evidence about Mother’s plans to perjure herself

and Mother’s prior statements about the victim’s habit of being dishonest. We disagree.

       Defendant relies on the following law: “Erroneous evidentiary rulings can rise to

the level of a due process violation. (Montana v. Egelhoff [(1996)] 518 U.S. 37, 53[.])”

As set forth ante, the trial court did not err when issuing its evidentiary rulings. As a

result, we are not persuaded by defendant’s argument that his due process rights were

violated by the alleged evidentiary errors.

       Further, we note the trial court offered defendant an opportunity to continue the

trial so as to secure the testimony of Carter and/or Carter’s wife—the people who

supposedly had personal knowledge of the alleged false allegations—but defendant

declined the opportunity. Thus, to the extent defendant is asserting he was denied an


                                              13
opportunity to present exculpatory evidence, such an assertion is also not persuasive,

since defendant rejected the offer to continue the trial.

       In regard to the right of confrontation, defendant asserts he should have been able

to cross-examine Mother about her prior inconsistent statement concerning the victim’s

dishonesty. We apply the de novo standard of review, since defendant’s assertions

involve his constitutional right of confrontation. (People v. Seijas (2005) 36 Cal.4th

291, 304.) As set forth ante, Mother testified that the victim was sometimes dishonest.

Thus, there was not a prior inconsistent statement, as the statements were consistent. As

a result, defendant was not denied an opportunity to cross-examine Mother about a prior

inconsistent statement.

       Defendant also contends he was denied an opportunity to cross-examine Mother

about her plan to perjure herself. As set forth ante, there is nothing in the trial court’s

on-the-record ruling reflecting that evidence about perjury was excluded. Thus, we are

not persuaded the trial court denied defendant an opportunity to cross-examine Mother

about this issue.

       Defendant contends the trial court’s cumulative evidentiary errors violated his

right of due process, right of confrontation, and right to present a full defense. We have

not found an error on the part of the trial court. As a result, defendant’s cumulative

error argument is unpersuasive. (In re Reno (2012) 55 Cal.4th 428, 483 [there cannot

logically be cumulative error when there are no errors to cumulate].)




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                                      DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                    MILLER
                                                             J.


We concur:


McKINSTER
                    Acting P. J.


RICHLI
                                 J.




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