Filed 5/15/14 P. v. Rodriguez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048944

         v.                                                            (Super. Ct. No. RIF148601)

RAFAEL FIGUEREO RODRIGUEZ,                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County,
Richard Todd Fields, Judge. Affirmed.
                   Siri Shetty, 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, Assistant Attorney General, Lynne G. McGinnis and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Rafael Figuereo Rodriguez of aggravated
sexual assault of a child under 14 years of age (count 1; Pen. Code, § 269, subd. (a)(4))
and lewd acts upon a child under 14 years of age (count 2; Pen. Code, § 288, subd. (a)).
The trial court sentenced defendant to 15 years to life in state prison. Defendant asserts
the court erred by admitting evidence of uncharged sexual misconduct. Defendant also
claims his trial attorney provided ineffective assistance of counsel in failing to adequately
advocate for the admission of certain audio recordings. We affirm the judgment.


                                          FACTS


              Defendant (born in 1971) began a romantic relationship with an adult
woman (mother) in 2002. Defendant and mother lived together from 2002 to 2009 in
several homes in Riverside County. At the beginning of the relationship, mother had two
young daughters, including Jane Doe. Jane Doe was born in 1998, making her 13 years
old at the time of trial but significantly younger during the time she resided with
defendant. During the course of their relationship, defendant and mother had two
children of their own, including Jane Doe 2.
              Jane Doe’s aunt and cousins moved in with the family in 2008. A teenage
cousin noticed several disturbing incidents involving defendant and Jane Doe. On one
occasion, defendant approached Jane Doe from behind and hugged her. At the time, Jane
Doe was leaning against a chair with her rear end sticking out; Jane Doe reacted to the
hug with a facial expression indicating she did not like the hug. On another occasion,
defendant asked Jane Doe to lie down with him, whereupon Jane Doe placed a pillow on
“his private part” and lay down on top of defendant (facing up, with her buttocks on the
pillow). When her cousin asked her about defendant, Jane Doe started crying and told
her cousin that defendant had touched “her parts” since Jane Doe was six years old. Jane
Doe’s disclosures ultimately led to mother calling the police.

                                               2
              The key evidence at trial consisted of a videotaped police interview of Jane
Doe, conducted on February 2, 2009. In this interview, Jane Doe described the first
incident when she was six years old: “He took me to his . . . room, and then he laid me
on the bed. He took off his shirt, and he . . . took off my clothes, and he kept on touching
me.” Defendant touched Jane Doe’s “boobs” with his hands. Defendant told Jane Doe to
keep his actions a secret or “he would leave us all on the street and he would kill [Jane
Doe’s] mom.” On other occasions, defendant “used to take off his pants and take off
[Jane Doe’s] pants, and . . . bring [Jane Doe] close to him” and place her “on his thing,”
although Jane Doe did not know if defendant “actually put his thing inside.”
“[S]ometime[s] . . . some white stuff comes out, and . . . it sounds like it hurts him
[be]cause he kind of” made an “ahhh” noise. On one occasion, defendant took his
clothes off and climbed into the bathtub with a naked Jane Doe until “white stuff came
out.” Another time, defendant showed Jane Doe a pornographic movie in which a
woman performed oral sex on a man; defendant then put his penis inside Jane Doe’s
mouth. This incident concluded when defendant “felt like white stuff was going to come
out, he told me like get your mouth out of there, and . . . then he went to the bathroom,
and then white stuff came out and he started screaming again.” Jane Doe described
defendant’s penis as “pointy and it had some, like a little line, . . . like skin on top of
it . . . when he . . . pulled the skin down, sometimes the white stuff came out.” Jane Doe
stated that defendant had a flag tattoo on his knee. The parties stipulated that defendant
had an uncircumcised penis and a flag tattoo above his knee.
              Jane Doe testified at trial about defendant’s sexual abuse. She recalled
some of what occurred, such as an occasion when defendant took her shirt off and
touched her in the breast area. She also remembered defendant getting into the bathtub
with her and an occasion on which defendant pinned her down and kissed her. Jane Doe
also recalled defendant “said if I told anyone, he would kick us out on the street and kill



                                               3
my mom.” Jane Doe did not recall many details about defendant’s conduct. Jane Doe
mentioned she had attended therapy and had tried to forget what had happened.
              Over a defense objection, the prosecution also called Jane Doe 2 (Jane
Doe’s younger sister) to the witness stand. Jane Doe 2 was eight years old at the time of
trial. Jane Doe 2 testified that defendant touched her in the vaginal area with his hand.
This incident occurred while defendant was inside the bathroom with Jane Doe 2. The
door was closed. Defendant told Jane Doe 2 that if she told her mother anything,
defendant would kill Jane Doe 2. Jane Doe 2 could not recall how old she was when this
incident occurred. Jane Doe 2 did not tell anyone what occurred because she was scared.
During her direct examination, Jane Doe 2 denied there were any other times that
defendant touched Jane Doe 2. On cross-examination, Jane Doe 2 agreed that defendant
touched her “boobies” on the same day.
              A video interview of Jane Doe 2’s June 2009 interview by police was also
played for the jury. After Jane Doe 2 had been allowed to testify over defense counsel’s
objection, defense counsel advocated for this evidence to be admitted and the prosecutor
did not oppose it. Jane Doe 2 did not want to answer questions at the beginning of the
interview. Later, Jane Doe 2 drew a picture circling her “pee part” and “butt.” Using
leading questions, the interviewer extracted responses suggesting defendant touched Jane
Doe 2 with his finger on her “pee part” and “cola” (translated as “butt”). This occurred in
mother’s room when mother was working. Jane Doe 2 was sleeping on the bed. The
touching occurred over her clothes. Defendant said he would kill Jane Doe 2 if she told
mother. Jane Doe 2 then volunteered that defendant had touched Jane Doe on her
“chichis” (translated as “boobs”). Jane Doe 2’s mother had told Jane Doe 2 about what
happened to Jane Doe. During the second part of the interview, Jane Doe 2 claimed
defendant wanted her to touch his private part and threatened to kill Jane Doe 2, but she
did not touch it. Jane Doe 2 added that defendant touched her breasts. Jane Doe 2 then
said defendant licked her tongue with his tongue. Finally, Jane Doe 2 claimed defendant

                                             4
licked her “pee part,” but then said the tongue was touching her clothes (not the “pee
part”). This happened three times in her sister’s room.
              In addition to Jane Doe’s hazy memory at trial, defense counsel had several
other arrows in her quiver. For one, defendant testified, unequivocally denying any
wrongdoing or any sexual interest in children. Defendant also testified to a motive for
mother to gin up sexual abuse allegations against defendant — defendant’s discovery of
an alleged plot between mother and several of her relatives to kill defendant for his life
insurance proceeds. Moreover, an expert witness opined that defendant did not have any
of the characteristics typically present in child molesters. Finally, the court took judicial
notice (and instructed the jury to accept as true) that defendant was acquitted in a
                                                                                  1
previous trial of the charge that he had committed a lewd act upon Jane Doe 2. At the
previous trial, Jane Doe 2 denied that defendant touched her.


                                       DISCUSSION


              The jury found defendant guilty beyond a reasonable doubt of both charged
counts. Defendant does not contest the sufficiency of the evidence supporting the
convictions. Instead, defendant advocates for reversal on two grounds: (1) the court
erred by admitting evidence of incidents of uncharged sexual misconduct involving Jane
Doe 2 and (2) trial counsel was ineffective in failing to argue for the use of certain
recordings (discussed in detail below), both as impeachment evidence and in defendant’s
case-in-chief. We reject each of defendant’s assertions.




1
              The jury hung as to the Jane Doe counts at the first trial, splitting 10 to two
in favor of acquittal on count 1 and six to six on count 2. The jury in this case was not
made aware of this fact.


                                              5
The Court was Entitled to Admit Evidence of Defendant’s Uncharged Sexual Misconduct
              Defendant first argues the court erred by allowing the introduction of Jane
Doe 2’s testimony as evidence of the truth of the allegations (concerning Jane Doe)
against him in this case, thereby infringing defendant’s constitutional right to a fair trial.
The court denied defendant’s motion in limine to exclude Jane Doe 2’s testimony.
                                                       2
Explicitly conducting an Evidence Code section 352 analysis, the court characterized the
evidence as “certainly probative.” The court deemed the Jane Doe 2 evidence to be “less
inflammatory” than the charged offenses and concluded that the evidence would not
confuse the jury, “require an undue consumption of time, or be unduly prejudicial.”
              Section 1108 “permits evidence that the defendant committed other sexual
offenses to prove his propensity to commit the charged sexual offenses.” (People v.
Cottone (2013) 57 Cal.4th 269, 281.) “The general public policy on character or
propensity evidence is that it is not admissible to prove conduct on a given occasion.
[Citations.] Section 1108 creates a narrow exception to this rule based on the recognition
that ‘“[t]he propensity to commit sexual offenses is not a common attribute among the
general public.”’” (Id. at p. 285.) Section 1108 “authorizes the admission of evidence
not just of convictions but of a defendant’s ‘commission’ of prior sex crimes.” (People v.
Wilson (2008) 44 Cal.4th 758, 798.)
              The admissibility of evidence of other sexual offenses is limited by section
352. (§ 1108, subd. (a) [“if the evidence is not inadmissible pursuant to Section 352”];
see § 352 [“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”].) “Rather than admit or exclude every sex offense a
defendant commits, trial judges must consider such factors as its nature, relevance, and

2
              All statutory references are to the Evidence Code unless otherwise stated.

                                               6
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other sex offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917.)
              We review the court’s decision for an abuse of discretion. (People v.
Robertson (2012) 208 Cal.App.4th 965, 991.) According to defendant, the court abused
its discretion primarily because the truth of Jane Doe 2’s testimony was too uncertain to
justify its admission. There are inconsistencies between Jane Doe 2’s testimony and her
2009 police interview. At the previous trial, Jane Doe 2 denied that defendant had
improperly touched her. Defendant was acquitted by an earlier jury of the conduct
testified to by Jane Doe 2 in the instant trial. (But see People v. Brown (2011) 192
Cal.App.4th 1222, 1233 [“evidence of a prior act may be introduced as propensity
evidence even if the defendant was acquitted of criminal charges based upon that act”].)
Jane Doe 2 was only eight years old at the time of the instant trial in 2012, meaning she
was, at most, five years old at the time of the alleged lewd conduct by defendant. Jane
Doe 2’s testimony did not include the sort of details that might buttress its credibility.
Jane Doe 2’s allegations were first reported after defendant’s arrest, precluding an
inference that her complaint was made independently of her knowledge of Jane Doe’s
allegations. (Cf. People v. Balcom (1994) 7 Cal.4th 414, 427 [recognizing increased
probative value of victim’s report of uncharged sexual misconduct when victim did not
have knowledge of charged offenses].)
              We acknowledge the weaknesses of the Jane Doe 2 evidence. But, if true,
the allegation that defendant molested Jane Doe 2 is probative. If defendant in fact
touched his own biological daughter on her vagina with lewd intent when she was a

                                              7
preschooler, it is certainly more likely defendant also sexually abused Jane Doe when she
was between the ages of six and 10 years old. The uncharged offense had several
important similarities to the charged offense. The incidents both involved very young
girls living in defendant’s household during the same general period of time. Both girls
testified about defendant’s use of threats to obtain their silence. Thus, Jane Doe 2’s
testimony had some probative value.
              On the other side of the section 352 ledger, several factors support the trial
court’s exercise of discretion in concluding that the probative value of Jane Doe 2’s
testimony was not substantially outweighed by an undue consumption of time, undue
prejudice, confusion of the issues, or misleading of the jury. The admission of Jane Doe
2’s testimony did not significantly add to the difficulties of the defense, because it
involved one discrete event upon which defendant had already been acquitted in a prior
trial. This Jane Doe 2 evidence did not in fact occupy a substantial portion of the trial
(about 25 pages of testimony in the reporter’s transcript, plus about 36 pages of the police
interview in the clerk’s transcript).
              The Jane Doe 2 evidence was certainly inflammatory given the young age
of the victim and the threats made by defendant to his own daughter. But the Jane Doe 2
evidence was less inflammatory than the charged incidents because it was limited to
manual touching, as opposed to defendant’s use of his penis in the Jane Doe incidents.
The Jane Doe 2 testimony was therefore unlikely to provoke an emotional response by
the jury (beyond that evoked by direct evidence of the incidents involving Jane Doe).
(See People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Brown (2000) 77
Cal.App.4th 1324, 1338 [“evidence of past offenses was not inflammatory, and there was
no risk of confusion because the prior acts of domestic violence were less serious than the
charged act”].)
              The jury was informed (through Jane Doe 2’s testimony) that she had
testified in a different manner at the first trial. And, as required, the court took judicial

                                               8
notice of defendant’s acquittal of the prior sexual misconduct involving Jane Doe 2. (See
People v. Mullens (2004) 119 Cal.App.4th 648, 659-669 [court was within its discretion
by admitting evidence of uncharged offenses but erred by refusing to allow evidence that
defendant was acquitted of committing one of the offenses].) In theory, this cuts both
ways. On one hand, it makes it less likely the jury would believe Jane Doe 2’s
allegations. On the other hand, if the jury did believe Jane Doe 2, it might be tempted to
punish defendant for his lewd acts with Jane Doe 2 in this case. The theoretical concern
that the jury might punish defendant for the Jane Doe 2 incident is less likely in this case,
however, given the stronger evidence for the Jane Doe allegations.
              In sum, the court did not abuse its discretion. Even if the probative value of
section 1108 evidence is “slight,” the evidence is still admissible if there is not “any
significant ‘prejudicial’ effect, as that word is used in . . . section 352.” (People v. Ennis
                                     3
(2010) 190 Cal.App.4th 721, 733.)


Counsel’s Performance Did Not Fall Below the Standard of Professional Competency
              Defendant’s second contention is that his trial counsel’s failure to seek
admission of certain recordings as impeachment evidence prejudiced defendant and
constituted ineffective assistance of counsel. “A criminal defendant’s federal and state
constitutional rights to counsel [citations] include the right to effective legal assistance.
When challenging a conviction on grounds of ineffective assistance, the defendant must
demonstrate counsel’s inadequacy. To satisfy this burden, the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of

3
               The California Supreme Court made clear in People v. Falsetta, supra, 21
Cal.4th 903, that section 1108 is constitutional. (See People v. Loy (2011) 52 Cal.4th 46,
60-61 [declining to reconsider the issue]; People v. Wilson, supra, 44 Cal.4th at p. 797
[same].) Thus, to the extent defendant is claiming that his constitutional right to a fair
trial was violated even if the court was within its discretion in admitting the Jane Doe 2
evidence, we reject his argument.

                                               9
reasonableness under prevailing professional norms. Second, the defendant must show
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
              Some additional background is necessary to place the recordings (of which
we have transcripts in the appellate record) in context. First, defendant’s testimony: At
some point in his relationship with mother he had purchased two life insurance policies
naming mother as the beneficiary. In late 2008, defendant’s relationship with mother
began to suffer after mother’s sister (aunt) moved into the house. Defendant noticed “a
certain mystery between them. A lot of talking in low tones behind my back. And I
would ask [mother], and she never gave me a concrete answer. And so that began to
bother me.” Defendant heard mother and aunt “talking about something related to some
kind of witchcraft, some plan to harm me, to kill me, with the end and the goal of
getting” the proceeds from the two insurance policies. Defendant confronted mother
about her plot to kill him in late January 2009. Mother told defendant she did not know
what he was talking about. Defendant and mother had an argument. Defendant told
mother he was going to leave her; when he returned to the house 30 minutes later, the
police were there to question him.



                                              10
              Conversely, mother testified in rebuttal that she learned about the sexual
abuse of Jane Doe from aunt. At the time, she “couldn’t believe it. How could I believe
the father of two of my daughters, the man that I shared several years of my life [with],
and that I had deposited all my trust with my daughters?” Mother thought about whether
she would notify the police. She added, “I wanted to kill him.” She explained she
wanted to kill defendant “[b]ecause he was abusing my daughters. I never thought that I
was going to kill him, or kill him with a knife. It was just based on instinct.” Mother
confirmed she practiced the Santeria religion, but denied she had specifically prayed for
the death of defendant. Mother admitted telling her relatives that she wanted defendant
to die. But this had to do with the molestation allegations. Mother and defendant argued
about defendant’s actions before she called the police. Mother did not recall defendant
confronting her about wanting to kill him. She delayed reporting the incident to police
because she was in shock.
              On cross-examination, mother clarified that she did not recall what she
asked or prayed for with regard to the death of defendant. Defense counsel confronted
mother with her testimony from the prior trial, which was that she asked for the death of
defendant. She agreed she had asked all the saints and God. Mother at first did not recall
her testimony from the prior trial that she asked a particular saint, but then agreed she
asked the saint she believed in for defendant’s death. Mother denied trying to put a
“spell” on defendant with the help of her brother. Mother did not recall defendant asking
her why she wanted to kill him at the argument prior to the police being called. But after
reviewing her testimony from the prior trial, she agreed that “possibly during the
argument that we had, he could have said that.” Mother agreed that defendant had two
life insurance policies of which mother was the beneficiary.
              During her cross-examination, aunt denied being involved in a plot to kill
defendant. Counsel noted during a colloquy with the court that she had nothing with



                                             11
which to impeach aunt (unlike mother, who was impeached with her testimony from the
prior trial).
                In a pretrial motion in limine, the prosecutor sought to exclude from
evidence any mention of mother’s Santeria religion as well as certain recordings
defendant surreptitiously made of mother. Defendant wished to introduce evidence to
establish that mother was using witchcraft to kill defendant for his insurance money.
Defense counsel stated that she did “not seek to admit the actual recording, rather, just
[defendant’s] knowledge of and response to such statements.” In its pretrial ruling, the
court prospectively allowed defendant to show the charges were made after defendant
supposedly discovered a plot to kill him. The court explicitly ruled that the recordings
were inadmissible under Penal Code section 632, subdivision (d), without any argument
                               4
to the contrary from counsel.
                In his initial argument on appeal, defendant does not contend the court’s
ruling was in error with regard to the defense’s case-in-chief. Instead, defendant claims
trial counsel should have tried to use the recordings as impeachment evidence against
mother and aunt. As noted above, defense counsel asked mother and aunt questions
concerning the supposed plot to kill defendant and impeached mother with her testimony
from the prior trial, but did not try to introduce the audio recordings as impeachment
evidence. Defendant posits that evidence inadmissible under Penal Code section 632
“can be used to impeach inconsistent testimony by those seeking to exclude the
evidence.” (People v. Crow (1994) 28 Cal.App.4th 440, 452; see also Frio v. Superior
Court (1988) 203 Cal.App.3d 1480, 1497.)

4
               Penal Code section 632, subdivision (d), states that “[e]xcept as proof in an
action or prosecution for violation of this section, no evidence obtained as a result of
eavesdropping upon or recording a confidential communication in violation of this
section shall be admissible in any judicial, administrative, legislative, or other
proceeding.”


                                              12
                Our review of the transcripts of the (undated) audio recordings contained in
          5
the record suggests the surreptitious recordings were vague and unclear, and did not
include significantly more information beyond that communicated to the jury as part of
the cross-examination of mother. Two of the recordings feature only mundane
conversations without any conceivable pertinence to the case. The other two recordings
are in large measure incomprehensible. Only a few snippets qualify as arguably relevant.
The first recording included someone (purportedly mother) talking to other individuals
(purportedly mother’s siblings) about starting some process at midnight in which “he”
needed to “be deeply asleep.” The second recording includes the following colorful
comment (purportedly by mother): “He’s gonna get the shit scared out of him. He’s
going to regret the day he was born. I am going to do some fucking witch craft on him,
fucking dog.”
                Defendant has failed to establish either deficient performance by his trial
counsel or resulting prejudice. As shown in the preceding paragraphs, defendant was in
fact allowed to pursue his defense that mother, motivated by a desire to deflect attention
from her own wrongful plot to kill defendant, commanded her daughters to falsely claim
defendant had sexually abused them. Defendant was even allowed over the objection of
the prosecutor to link mother’s religious beliefs and practices to her alleged plot. The
jury was presented with a disputed question of cause and effect: Was mother’s desire for
defendant’s death the result of her finding out about the sexual abuse of Jane Doe or a
motive for her to invent false accusations against defendant once he found out about the
supposed plot? On the record before us, the contents of the recordings simply do not add
significantly to the impeachment of mother or aunt. It is unclear whether any of the
statements in the recordings are inconsistent with the testimony of mother or aunt. Thus,
it cannot be said that trial counsel was deficient or that prejudice occurred as a result of

5
                It appears these transcripts were admitted as exhibits in the first trial.

                                                13
such deficiency. In his reply brief, defendant suggests “it is not clear that the record on
appeal contains the entirety of the evidence relied on by trial counsel.” Of course,
assertions that evidence outside the record support a claim of ineffective assistance of
counsel are better dealt with in a habeas proceeding. It is not the role of appellate courts
to speculate as to evidence that might or might not exist in evaluating a claim of
ineffective assistance of counsel.


Ineffective Assistance of Counsel Pertaining to Penal Code Section 632
              In supplemental briefing, defendant claims his trial attorney also should
have argued that the audiotapes were admissible in his case-in-chief (not just as
                                                                                        6
impeachment evidence), notwithstanding Penal Code section 632, subdivision (d). This
supplemental briefing was triggered by a December 2013 published opinion interpreting
the applicability of Penal Code section 632, subdivision (d) in criminal cases in light of
the “Right to Truth-in-Evidence” provision of the California Constitution (Cal. Const.,
art. I, § 28, subd. (f), par. (2) [stating in part that “relevant evidence shall not be excluded
in any criminal proceeding”]). However, between defendant’s supplemental opening
brief and supplemental reply brief, the case was ordered depublished by our Supreme


6
               Defendant also argues in his supplemental briefing that the court erred by
excluding this evidence pursuant to Penal Code section 632, subdivision (d), without
regard to the ineffective assistance of counsel framework. But this claim was forfeited,
as defendant failed to seek admission of the recordings or argue the point below. (See
Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [“Where, as here, a
proponent of evidence does not assert a particular ground of admissibility below, he or
she is precluded from arguing on appeal that the evidence was admissible under a
particular theory”]; Evid. Code, § 354.) Indeed, defense counsel explicitly represented to
the court in writing that she would “not seek to admit the actual recordings, rather, just
[defendant’s] knowledge of, and response to, such statements.” Thus, just as the claim
that the recordings should have been introduced as impeachment evidence could only be
raised via an ineffective assistance claim, so too with the admissibility of the recordings
in defendant’s case-in-chief.

                                              14
Court. (See People v. Algire (Dec. 17, 2013) B244557, opn. ordered nonpub. Mar. 19,
2014.)
             Defendant nonetheless maintains that trial counsel provided ineffective
assistance by not arguing that the Right to Truth-in-Evidence provision nullified Penal
Code section 632, subdivision (d) in criminal cases. But for the same reasons stated in
the previous section pertaining to the use of the audio recordings as impeachment
evidence, defendant cannot demonstrate deficient performance or prejudice in this direct
appeal. The shortcomings of the recordings (e.g., vague, sometimes nonsensical
statements) meant that counsel could have had viable reasons for wishing to rely on
defendant’s testimony and the cross-examination of mother, rather than trying to
introduce recordings that were not particularly probative of anything. The recordings
were arguably relevant to the defense, but defense counsel accomplished more or less the
same thing through cross-examination of mother. We fail to see how defendant was
prejudiced by his counsel’s decision not to pursue admission of the recordings.


                                     DISPOSITION


             The judgment is affirmed.


                                                 IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.



                                            15
