Filed 1/7/14 P. v. Cialini CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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
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.
1 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.
2 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
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.
10 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.
12 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].)
14 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
RICHLI J.