1 Filed 6/26/13 P. v. Barajas CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JUAN TRUJILLO BARAJAS, Defendant and Appellant. E054746 (Super.Ct.No . FWV1001187) OPINION

APPEAL from the Superior Court of San Bernardino Count y. Stephan G. Saleson, Judge. Affirmed. William A. Elliott for De fendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, and Barry Carlton and Joy Utomi, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 I. INTRODUCTION Defendant Juan Trujillo Barajas appeals from his conviction of continuous sexual abuse (Pen. Code, 1 § 288.5, subd. (a)), two counts of le wd acts on a child under the age of 14 (§ 288, subd. (a)), 13 c ounts of committing a lewd act on a 14- or 15-year-old child (§ 288, subd. (c)(1)), six counts of forcible rape (§ 261, subd. (a)(2)), and two counts of oral copulation of a child under the age of 16 (§ 288a, subd. (b)(2 )) and his resulting 58- year prison sentence. Defendant contends (1) the prosecutor violated a cour t ruling in closing argument by referring to statements the victim’s a unt made to the victim during a telephone conversation, and (2) the trial court improperl y excluded the victim’s statement during a pretext telephone call to defendant and defend ant’s response to that statement. We find no error and we affirm. II. FACTS AND PROCEDURAL BACKGROUND Defendant was victim Jane Doe’s stepfa ther. Doe was born in 1994. Until high school, she shared a room with defendant, her mother, and two younger siblings, in a home they shared with other relatives in Montclair. Afte r Doe turned 12 years old, defendant began to fondle her vaginal area over her clothing; he did th at at least 10 times. When she was 13, defendant be gan to have penile-vaginal sex with her; that occurred once or twice a week until she was 15. Th e abuse usually happened after Doe got home from school when no other adult was at home or during the night when everyone else was

1 All further statutory references are to the Penal Code except as otherwise indicated.3 asleep. Defendant would pull Doe into a bedr oom, tell her to undress, and have sex with her. He usually stood next to the bed with Doe ly ing in front of him, and he pulled her legs apart. After penetrati ng her, he would withdraw and ej aculate into napkins he kept in his pocket. After Doe turned 14, he or ally copulated her twice and ordered her to orally copulate him once. He sometimes used his fingers to penetrate her vagina. He also had sex with her in Doe’s mother’s ca r and in the restaurant where he and Doe worked. Defendant repeatedly told Doe not to tell anyone about the molestations. He said no one would believe her, and sh e would be kicked out of th e house. Doe did not report the molestations for years b ecause she believed her siblings loved defendant , and she did not want to destroy the family. In a telephone conversation, Doe eventually told her Aunt Sandra, who lived in another stat e, about the molestations. Th e aunt told Doe that if she told anyone, she should tell only a trusted friend. The aunt also said Doe could live with a relative if she was kicked out of the home. Doe told school friends about the abuse, the friends told school officials, and the police were called. The jury found defendant guilty of one coun t of continuous sexu al abuse (§ 288.5, subd. (a)); two counts of lewd acts on a child under the age of 14 (§ 288, subd. (a)); 13 counts of committing a lewd act on a 14- or 15-year-old child (§ 288, subd. (c)(1)); six counts of forcible rape (§ 261, subd. (a)(2)); and two counts of oral copulation of a child under the age of 16 (§ 288a, subd. (b)(2)). The trial court sentenced him to 58 years in prison. Additional evidence is set forth in the disc ussion of the issues to which it pertains.4 III. DISCUSSION A. Prosecutorial Misconduct Defendant contends the pros ecutor violated a court ruling in closing argument by referring to statements the victim’s aunt made to th e victim during a telephone conversation. 1. Additional Background Defendant moved in limine to exclude st atements Doe’s aunt made to Doe in telephone conversations. In a first conver sation, the aunt questioned Doe about what defendant had done to her. In a second conversation, the a unt said that Doe could stay with a relative if she were kicked out of the house and that she should tell only a trusted friend about the abuse. The trial court pre liminarily ruled it would exclude the aunt’s portion of the first convers ation because she was not available as a witness. Later, the trial court ruled the second conv ersation would be admissible: “I will allow the part about that she, you know, coul d stay with somebody and if you are going to tell somebody, becaus e that gives the context.” The co urt added, “Well, to the extent that there is an objection to the part about that [Doe] could go live someplace else, that is overruled. If there is an objection to the pa rt about, ‘If you are going to tell anybody, tell a close friend,’ that part is overruled. But I will instruct the jury, as I just did a few minutes ago when you objected to hearsay, that those statements are not going to be admitted for the truth of the matter.” As recounted above, at trial Doe testifie d that she reported the abuse to school friends shortly after a telephone conversation with her aunt.5 During closing argument, the prosecutor st ated, “She’s on the phone with Aunt Sandra. Aunt Sandra has a conversation with Jane Doe, and in response to something Sandra says, the victim told her, the very first person the victim ever told about the molestation. Sandra said she’d take care of it, she’d find the victim a safe place to live and to only tell close friends.” No objection was raised. 2. Analysis Defendant bases his argument on the trial c ourt’s ruling to excl ude evidence of the first telephone conversation. However, the trial court expressly allowed the second conversation into evidence, and the pros ecutor’s argument referred to that second conversation. Consequently, the pr osecutor did not commit misconduct. B. Exclusion of Evidence Defendant contends the tr ial court improperly exclude d the victim’s statement during a pretext telephone call to de fendant and defendant’s response. 1. Additional Background At the direction of police, Doe made a pretext telephone call to defendant, during which the victim falsely st ated she was pregnant. De fendant responded by saying, “‘Who’s the boy that did it to you.’” Defenda nt sought to admit Doe’ s statement that she was pregnant and argued that his own respons e was hearsay. He argued Doe’s statement would impeach her credibility because she was not actually pregnant, and the statement showed she was willing to set defendant up fo r a crime. The trial court excluded Doe’s statement on the grounds it was irrelevant and misleading, but stated it would reconsider its ruling if defendant testified.6 2. Standard of Review We review the trial court’s ruling on th e admissibility of ev idence under the deferential abuse of discretion standard. ( People v. Gutierrez (2009) 45 Cal.4th 789, 827.) 3. Analysis Evidence must be relevant to be admissi ble. (Evid. Code, § 350.) “Relevant evidence” is eviden ce that reasonably tends to prove or disprove any disputed material fact. (Evid. Code, § 210.) The trial court ha s discretion to exclude relevant evidence if its probative value is outweighed by the likeliho od of prejudice, of c onfusing the jury, or of undue consumption of tim e. (Evid. Code, § 352.) Defendant sought to introd uce Doe’s statement to attack her credibility. However, Doe made the statement during a pretext telep hone call at the directi on of police officers. Thus, the trial court could properly determ ine that the conversa tion was of marginal relevance to Doe’s credibility. Moreover, the trial court c ould reasonably de termine that introduction of the conversatio n would have necessitated fu rther evidence as to the circumstances under which it was made, incl uding evidence that a law enforcement officer had originated the ruse . And, as the prosecutor po inted out, introduction of the statement would have required di sproving that Doe was pregna nt. We conclude the trial court did not abuse its discretion in concludi ng that the probative va lue of the proffered evidence was substantially out weighed by the probability that its admission would confuse the issues or lead to undue consumption of time. (See, e.g., People v. Valdez (2012) 55 Cal.4th 82, 133-134.)7 Defendant argues for the first time on ap peal that his own response to Doe’s statement should have been ad mitted as a spontaneous declar ation. Although his counsel stated in the trial court that defendant’s statement was spontaneou s, his counsel also stated he was not trying to admit that statem ent. We conclude defendant has forfeited his argument. IV. DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST Acting P. J. We concur: RICHLI J. MILLER J.