People v. Espinoza

Opinion

MIHARA J.

Defendant was convicted after a court trial of four counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), one count of forcible lewd conduct on a child (Pen. Code, § 288, subd. (b)) and one count of attempted forcible rape (Pen. Code, §§ 261, subd. (a)(2), 664). He was committed to state prison for a term of eight years. On appeal, he claims that his due process rights were violated by the trial court’s exclusion of (1) evidence that the victim had made a prior false allegation of molest, (2) testimony by a defense psychiatrist regarding the victim’s credibility and (3) testimony by the victim’s foster mother regarding the victim’s credibility. He also asserts that the evidence was insufficient to support a finding of force or duress as to the forcible lewd conduct count or the attempted forcible rape count. In an accompanying petition for writ of habeas corpus, defendant asserts that he is entitled to a new trial because he has recently discovered evidence which undermines the prosecution’s case.

We conclude: (1) defendant never proffered evidence that the victim’s prior accusation was false, (2) the proffered expert psychiatric evidence was

[1292]

inadmissible and its exclusion did not violate defendant’s due process rights, (3) Welfare and Institutions Code section 827 did not justify exclusion of the foster mother’s testimony but its exclusion was not a violation of defendant’s right to due process and did not prejudice him, (4) there was insufficient evidence of duress and (5) his petition is meritless. We therefore modify and affirm the judgment and deny the petition.

Facts

In early April 1999, defendant and his father drove to Nebraska from California and picked up defendant’s three daughters L., J. and A. and their elder half sister M. from their mother to bring the girls to live with him in Salinas. L. and J. wanted to come live with defendant because they “missed him.” Defendant had promised to take them to Disneyland and Knott’s Berry Farm. Their half sister M. went to live with a friend initially and then with defendant’s sister. M. did not live with defendant because defendant had molested M. three times between 1988 and 1990. When M.’s mother had confronted defendant about M.’s allegations at the time, defendant said he had molested her because she “was not his.” Defendant had been prosecuted and convicted of molesting M. When he came to pick up the girls in April 1999, defendant got on his knees, cried and asked their mother to forgive him for molesting M. Defendant claimed that he had “changed,” that he was attending church and that he “would never do that again.” Before defendant left Nebraska with the girls, their mother told him that L. had been molested by L.’s uncle in Nebraska. Defendant had no reaction to this disclosure.