People v. Cannedy, E044512 (Cal. App. 2/26/2009)

• Decision Date: 26 February 2009
• Docket Number: E044512
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. EARL EUGENE CANNEDY, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. EARL EUGENE CANNEDY, Defendant and Appellant.

E044512

Court of Appeals of California, Fourth Appellate District, Division Two

February 26, 2009

Not to be Published in Official Reports

Appeal from the Superior Court of Riverside County, No. INF047689, John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P. J.

Following a jury trial, defendant Earl Eugene Cannedy was found guilty of oral copulation of a person prevented from resisting by an intoxicating, anesthetic or controlled substance (Pen. Code,¹ § 288a, subd. (i)), and oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). On October 19, 2007, he was sentenced to state prison for a total term of two years, to be served consecutively to the sentence he received in Superior Court case No. INF046350 (10 years eight months).² Defendant appeals, contending he was denied his constitutional rights when the trial court refused to allow him to call J.C. as a defense witness to discredit A.G.'s testimony against him.

I. FACTS

P., C., and Jane Doe³ are sisters. P. was married to defendant. A.G. is Jane Doe's niece, P.'s daughter by another man.

In 2000, when Jane Doe was 17, she spent Christmas with P. and defendant in Palm Desert. Jane Doe was sleeping in A.G.'s bedroom because A.G. was away. On December 23, after the family returned home from shopping, defendant got a bottle of vodka from the freezer to share with Jane Doe while P. was making dinner. Defendant showed Jane Doe how to "guzzle" the vodka. After about four or five "guzzles," Jane Doe became affected. She thought she must have blacked out, because she did not remember much about dinner. She remembered waking up in A.G.'s bedroom in her pajamas. Jane Doe felt paralyzed. The room was dark and defendant was at the foot of the bed. She remembered P. walking to the room, asking defendant to come to bed. Jane Doe fell asleep.

When Jane Doe woke up again, defendant was near the foot of the bed, tugging her ankles and knees to turn her on her back and pull her down to the foot of the bed. He grabbed the waistband of her pajamas and pulled them down to her knees. She was not wearing underwear. He commented that she had a "beautiful pussy" and he loved it. He put his mouth on her vagina and made a "sucking type of motion." He was kneeling on the floor and leaning over her, sucking and moaning. She wished her sister would come in and take him away. She did not try to stop defendant and did not fight him because she could not move her arms or legs, and she could hardly stay awake. She was scared and very uncomfortable and she wanted defendant to stop, but she did not say anything. Defendant was licking his fingers and spreading her vagina, putting moisture from his mouth there with his hand. When there was enough moisture he pulled out a "rubber dildo" in the shape of a penis, and put it into her vagina, moving it in and out.

At last, P. came in and yelled at defendant to come to bed. Jane Doe fell asleep and didn't wake up until daytime, feeling the affects of drinking. C. was telling Jane Doe to gather her things because she was leaving. Fearing that she would be blamed for defendant's action, Jane Doe did not report what had happened until June 2001.

C. described a frantic phone call she received from P. on December 23 or 24, 2000, at 4:00 or 5:00 in the morning. P. said she was calling from A.G.'s closet. She sounded hysterical. P. said that Jane Doe was drunk and that defendant was "eating out" Jane Doe. P. told C. to come get Jane Doe and take her home with her. C. arrived around 7:30 a.m. and picked up Jane Doe. Jane Doe and C. agreed not to disclose what defendant had done.

A.G. testified that defendant is her stepfather.⁴ She lived with P., her mother, and defendant until January 2004. Her relationship with P. fell apart after defendant sexually molested her (A.G.) over the Christmas holidays in 2003. P. did not want to believe A.G. and took defendant's side.

One evening before Christmas 2003, A.G. was in the family room watching a movie with defendant. As she lay on the couch watching a movie, with her legs across defendant's lap, he asked her if she wanted a foot massage. He started with a foot massage and then slowly started moving his hands up her leg, inside the pajama leg. He moved his hands far enough up to touch her vagina with his hand, then moved his fingers around and then inside her vagina. A.G. did not say anything, but she was hurt and didn't understand why he was doing this. She did not try to stop him but did get up and go to her bedroom. She did not tell anyone else what happened.

A.G. was afraid that it would happen again. A few weeks later, but still before Christmas, A.G. was sick and was lying on the couch around 10:00 p.m. P. was at work. When defendant came home from work, he sat down with A.G. on the couch. A.G. said her back was hurting. Defendant offered, and A.G. accepted, a back massage. His hands again went under her pajama bottoms, moving down to massage her buttocks. He then started to lift up her hips and take off her pants and underwear. He pulled them down to her knees, then put his mouth to her vagina while her buttocks were up in the air. He kept licking her vagina until he saw her crying really hard. She felt betrayed. She did not say anything to him, but he stopped and said he was sorry, he did not know it was wrong and it would not happen again. She kept crying and finally went to her room. She did not tell her mother because he promised her it would not happen again.

On Christmas morning in 2003, A.G. was in her parents' bed with her mother, defendant, and two stepsisters. Her mother left to take a shower, and her sisters were sleeping, when defendant reached over and started putting his hands down her pants again. Going under her underwear, he touched her vagina, but as soon as she felt that she got up and went to her bedroom. She did not tell her mother because she did not know how. She was also afraid because defendant told A.G. that she and her sister would be taken away if anyone found out. Nonetheless, A.G. eventually reported defendant's actions to the police. Defendant was charged and later convicted of his actions.

Defendant testified on his own behalf. He denied sexually molesting either Jane Doe or A.G. but admitted that he was convicted of molesting A.G.

II. EVIDENCE CONCERNING A.G. RECANTING ACCUSATIONS AGAINST DEFENDANT

Defendant contends the trial court's refusal to allow the testimony of J.C. for the purpose of impeaching A.G.'s testimony constituted a violation of his rights to due process and to call defense witnesses. He refers to the testimony of J.C., which would show that A.G. recanted her charge of sexual molestation when she posted an "away message" on the Internet.⁵ Alternatively, if we find that defendant's constitutional objections were waived due to trial counsel's failure to specify such grounds, defendant argues ineffective assistance of counsel. In any event, defendant maintains the People cannot show that the error in not allowing this impeaching evidence was harmless beyond a reasonable doubt.

A. Standard of Review

Citing numerous case authorities, including Chambers v. Mississippi (1973) 410 U.S. 284, 294 (Chambers), defendant claims the exclusion of J.C.'s impeaching testimony violated his federal constitutional right to present a defense. "A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court's application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations]. . . . Although the high court in Chambers determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question `the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' [Citation.]" (People v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds as stated in People v. Doolin, 2009 Cal. Lexis 2, 49 (Cal. Jan. 5, 2009).)

In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. (Evid. Code, §§ 210, 351; People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court is vested with wide discretion in determining the relevancy of evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The question whether the defendant presented an adequate foundation to establish the relevance of the evidence also lays within the trial court's broad discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) "`Exclusion of evidence as more prejudicial, confusing or distracting than probative, under Evidence Code section 352, is reviewed for abuse of discretion.' [Citation.] But `exclusion of evidence that produces only speculative inferences is not an abuse of discretion.' [Citation.]" (People v. Cornwell, supra, 37 Cal.4th at p. 81.)

Turning to the case before this court, we consider whether the trial court abused its discretion in finding a lack of foundation to admit defendant's impeaching evidence.

B. Additional Background

A.G. described how defendant molested her around Christmas 2003. During cross-examination, A.G. admitted that she had access to a computer in December 2003 and early 2004. She...