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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. RAFAEL FIGUEREO RODRIGUEZ, Defendant and Appellant. G048944
(Super. Ct. No. RIF148601)

O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, Richard Todd Fields, Judge. Affirmed. Siri Shetty, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Ly nne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 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 ag e (count 2; Pen. Code, § 288, subd. (a)). The trial court sentenced defendant to 15 year s to life in state prison. Defendant asserts the court erred by admitting evidence of un charged sexual misconduct. Defendant also claims his trial attorney provi ded ineffective assistance of co unsel in failing to adequately
advocate for the admission of certain audi o recordings. We affirm the judgment.

FACTS

Defendant (born in 1971) began a romantic rela tionship with an adult woman (mother) in 2002. Defendant and moth er lived together fro m 2002 to 2009 in several homes in Riverside County. At the be ginning 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 tim e she resided with defendant. During the course of their re lationship, 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 in volving defendant and Jane Doe. On one occasion, defendant approached Jane Doe from be hind 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 di d not like the hug. On another occasion,
defendant asked Jane Doe to lie down with him, whereupo n Jane Doe placed a pillow on “his private part” and lay down on top of de fendant (facing up, with her buttocks on the pillow). When her cous in asked her about defendant, Jane Doe started crying and told her cousin that defendant had touched “her part s” since Jane Doe was six years old. Jane Doe’s disclosures ultimately led to mother calling the police.3 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, a nd he kept on touching
me.” Defendant touched Jane Doe’s “boobs” w ith 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 pl ace her “on his thing,” although Jane Doe did not know if defe ndant “actually put his thing inside.” “[S]ometime[s] . . . some white stuff come s out, and . . . it sounds like it hurts him [be]cause he kind of” made an “ahhh” nois e. 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 Ja ne Doe a pornographic movie in which a woman performed oral sex on a man; defendan t then put his penis inside Jane Doe’s
mouth. This incident concluded when defe ndant “felt like white stuff was going to come out, he told me like get your mouth out of ther e, and . . . then he went to the bathroom,
and then white stuff came out and he star ted screaming again.” Jane Doe described defendant’s penis as “pointy and it had some, like a little line, . . . li ke skin on top of it . . . when he . . . pulled th e skin down, sometimes the white stuff came out.” Jane Doe
stated that defendant had a fl ag tattoo on his knee. The par ties stipulated that defendant had an uncircumcised penis and a flag tattoo above his knee.
Jane Doe testified at trial about defe ndant’s sexual abuse. She recalled some of what occurred, such as an occas ion when defendant took her shirt off and
touched her in the breast area. She also re membered defendant getting into the bathtub
with her and an occasion on wh ich 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 kill4 my mom.” Jane Doe did not recall many de tails about defendant’s conduct. Jane Doe
mentioned she had attended th erapy and had tried to forget what had happened. Over a defense objection, the prosecu tion also called Jane Doe 2 (Jane Doe’s younger sister) to the w itness stand. Jane Doe 2 was eight years old at the time of
trial. Jane Doe 2 testified th at defendant touched her in the vaginal area with his hand.
This incident occurred while defendant was in side 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 reca ll how old she was when this
incident occurred. Jane Doe 2 did not tell a nyone what occurred because she was scared. During her direct examination, Jane Doe 2 denied there were a ny other times that
defendant touched Jane Doe 2. On cross-exam ination, Jane Doe 2 ag reed that defendant
touched her “boobies” on the same day.
A video interview of Jane Doe 2’s J une 2009 interview by police was also played for the jury. After Jane Doe 2 had be en allowed to testify over defense counsel’s objection, defense counsel advocat ed for this evidence to be admitted and the prosecutor did not oppose it. Jane Doe 2 did not want to answer ques tions at the beginning of the interview. Later, Jane Doe 2 drew a pictur e circling her “pee part” and “butt.” Using leading questions, the intervie wer extracted responses sugges ting 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 wa s 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 he r breasts. Jane Doe 2 then said defendant licked her tongue with his to ngue. Finally, Jane Doe 2 claimed defendant5 licked her “pee part,” but then said the ton gue was touching her cl othes (not the “pee part”). This happened three tim es 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, defenda nt 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 ag ainst defendant — defendant’s discovery of an alleged plot between mother and several of her relatives to kill defendant for his life insurance proceeds. Moreove r, an expert witness opined th at defendant did not have any of the characteristics typically present in child molesters. Fi nally, the court took judicial notice (and instructed the jury to accept as true) that defendant was acquitted in a previous trial of the charge that he had committed a lewd act upon Jane Doe 2. 1 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 su fficiency of the evid ence supporting the convictions. Instead, defendant advocates fo r reversal on two grounds: (1) the court erred by admitting evidence of incidents of unch arged sexual miscondu ct 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 de fendant’s assertions.

1 The jury hung as to th e Jane Doe counts at the fi rst 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.6 The Court was Entitled to Admit Evidence of Defendant’s Un charged 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 defe ndant’s constitutional right to a fair trial. The court denied defendant’s motion in limine to exclude Jane Doe 2’s testimony. Explicitly conducting an Evidence Code section 352 2 analysis, the court characterized the evidence as “certainly probative. ” The court deemed the Jane Doe 2 evidence to be “less inflammatory” than the charge d offenses and concluded th at the evidence would not confuse the jury, “require an undue consumpt ion of time, or be unduly prejudicial.” Section 1108 “permits ev idence that the defendant committed other sexual offenses to prove his propensity to co mmit the charged sexual offenses.” ( People v.
Cottone (2013) 57 Cal.4th 269, 281.) “The ge neral public policy on character or propensity eviden ce is that it is not admissible to prove conduct on a given occasion. [Citations.] Section 1108 creates a narrow exce ption to this rule based on the recognition that ‘“[t]he propens ity 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 eviden ce of other sexual offens es is limited by section 352. (§ 1108, subd. (a) [“if the evidence is not inadmissi ble 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 admissi on will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudic e, of confusing the issues, or of misleading the jury”].) “Rathe r 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.7 possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the juro rs 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 uncharg ed 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 fo r an abuse of discretion. ( People v.
Robertson (2012) 208 Cal.App.4th 965, 991.) Acco rding 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 inconsiste ncies between Jane Doe 2’s testimony and her 2009 police interview. At th e previous trial, Jane Doe 2 denied that defendant had improperly touched he r. 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 [“eviden ce 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 tim e of the instant trial in 2012, meaning she was, at most, five years old at the time of th e 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 reporte d after defendant’s arrest, precluding an inference that her complaint was made inde pendently 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 unch arged sexual misconduct when victim did not have knowledge of charged offenses].) We acknowledge the weaknesses of the Ja ne Doe 2 evidence. But, if true, the allegation that defendant molested Jane Doe 2 is probative. If defendant in fact touched his own biological da ughter on her vagina with lewd intent when she was a8 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 incide nts both involved very young girls living in defendant’s household during th e 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 le dger, 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 mislead ing of the jury. The admission of Jane Doe 2’s testimony did not significan tly add to the difficulties of the defense, because it
involved one discrete event upon which defe ndant had already been acquitted in a prior
trial. This Jane Doe 2 evid ence 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 certainl y inflammatory given the young age of the victim and the threats made by defend ant to his own daughter. But the Jane Doe 2
evidence was less infl ammatory than the ch arged 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 unlik ely to provoke an emotional response by the jury (beyond that evoked by direct evidence of th e incidents involving Jane Doe). (See People v. Ewoldt (1994) 7 Cal.4th 380, 405; People v. Brown (2000) 77 Cal.App.4th 1324, 1338 [“eviden ce 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 tria l. And, as required, the court took judicial9 notice of defendant’s acquittal of the prior se xual misconduct involving Jane Doe 2. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659-6 69 [court was within its discretion by admitting evidence of uncharged offenses but erred by refusi ng to allow evidence that defendant was acquitted of committing one of th e offenses].) In th eory, this cuts both ways. On one hand, it make s it less likely the jury w ould believe Jane Doe 2’s allegations. On the other hand, if the jury di d believe Jane Doe 2, it might be tempted to punish defendant for his lewd ac ts with Jane Doe 2 in this case. The theoretical concern that the jury might punish defend ant 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 discre tion. Even if the probative value of section 1108 evidence is “slight ,” the evidence is still admi ssible if there is not “any significant ‘prejudicial’ effect, as that wo rd is used in . . . section 352.” ( People v. Ennis (2010) 190 Cal.App.4th 721, 733.) 3

Counsel’s Performance Did No t 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 impeac hment evidence prejudiced defendant and
constituted ineffective assistance of counsel. “A criminal defendant’s federal and state constitutional rights to counsel [c itations] include the right to effective legal assistance. When challenging a conviction on grounds of in effective assistance, the defendant must demonstrate counsel’s inadequacy . To satisfy this burden, the defendant must first show counsel’s performance was defici ent, 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 11 08 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 with in its discretion in admitting the Jane Doe 2 evidence, we reject his argument.10 reasonableness under prevailing professional norms. Second, the de fendant must show resulting prejudice, i.e., a reasonable prob ability that, but for counsel’s deficient performance, the outcome of the proceedi ng would have been different. When examining an ineffective a ssistance 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 assist ance. On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the re cord affirmatively di scloses counsel had no rational tactical purpose for the challenged ac t or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there si mply could be no satisfactory explanation.
All other claims of ineffective assistance ar e more appropriately re solved in a habeas corpus proceeding.” ( People v. Mai (2013) 57 Cal. 4th 986, 1009.) Some additional background is necessary to place the reco rdings (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 rela tionship with mother began to suffer after mother’s sister (aunt) m oved into the house. Defendant noticed “a certain mystery between them. A lot of ta lking 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. De fendant confronted mother about her plot to kill him in late January 2009. Mother to ld 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.11 Conversely, mother testified in rebu ttal that she learned about the sexual abuse of Jane Doe from aunt. At the time, sh e “couldn’t believe it. How could I believe the father of two of my daughters, the man th at 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 a busing 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 Sant eria 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 th e police. Mother did not recall defendant confronting her about wanting to kill him. She delayed re porting the incident to police
because she was in shock. On cross-examination, mo ther clarified that she did not recall what she asked or prayed for with rega rd 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 sa ints and God. Mother at first did not recall her testimony from the prior trial that she as ked 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 br other. 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 th at.” Mother agreed that defendant had two life insurance policies of which mother was the beneficiary. During her cross-examination, aunt deni ed being involved in a plot to kill defendant. Counsel noted during a colloquy with the court that she had nothing with12 which to impeach aunt (unlik e mother, who was impeached wi th 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. De fendant wished to in troduce evidence to establish that mother was using witchcraft to kill defendant for hi s 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 s how the charges were made after defendant supposedly discovered a plot to kill him. Th e court explicitly ruled that the recordings
were inadmissible under Penal Code secti on 632, subdivision (d), without any argument to the contrary from counsel. 4 In his initial argument on appeal, defe ndant does not contend the court’s ruling was in error with regard to the defense’s case-in-chie f. Instead, defendant claims
trial counsel should have tried to use the recordings as impeachment evidence against mother and aunt. As noted above, defens e counsel asked mother and aunt questions concerning the supposed plot to kill defenda nt and impeached mother with her testimony from the prior trial, but did not try to intr oduce the audio recordings as impeachment evidence. Defendant posits that evidence inadmissible un der Penal Code section 632 “can be used to impeach inconsistent te stimony 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 s ection, no evidence obta ined as a result of eavesdropping upon or record ing a confidential communicati on in violation of this section shall be admissible in any judici al, administrative, legislative, or other proceeding.”13 Our review of the transcripts of the (u ndated) audio recordings contained in
the record 5 suggests the surreptitious recordings were vague and unclear, and did not include significantly mo re information beyond that communi cated to the jury as part of
the cross-examination of mother. Two of the recordings feature only mundane conversations without any conceivable pertinen ce 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 (purporte dly mother) talking to other individuals (purportedly mother’s siblings) about startin g some process at midnight in which “he” needed to “be deeply asleep.” The sec ond 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 eith er 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 moth er, 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 ou t about the sexual abuse of Jane Doe or a motive for her to invent false accusations ag ainst defendant once he found out about the supposed plot? On the record before us, the contents of th e 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 defici ent or that prejudice occurred as a result of

5 It appears these transcripts were ad mitted as exhibits in the first trial.14 such deficiency. In his reply brief, defendant suggests “it is not clear that the record on appeal contains the entirety of the eviden ce relied on by trial counsel.” Of course,
assertions that evidence outside the record support a claim of ine ffective assistance of counsel are better dealt with in a habeas proceedi ng. 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 Pe rtaining to Penal Code Section 632 In supplemental briefing, defendant cl aims his trial attorney also should have argued that the audiotapes were admi ssible in his case-in-chief (not just as impeachment evidence), notw ithstanding Penal Code se ction 632, subdivision (d). 6 This supplemental briefing was triggered by a December 2013 published opinion interpreting the applicability of Penal Code section 632, subd ivision (d) in criminal cases in light of the “Right to Truth-in-Evide nce” provision of the Califor nia 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 cas e was ordered depub lished by our Supreme

6 Defendant also argues in his supple mental briefing that the court erred by excluding this evidence pursu ant to Penal Code section 632, subdivision (d), without regard to the ineffective assi stance 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.Ap p.4th 229, 282 [“Where, as here, a proponent of evidence does not assert a part icular ground of admissibility below, he or she is precluded from arguing on appeal th at the evidence was admissible under a particular theory”]; Evid. Code , § 354.) Indeed, defense coun sel explicitly represented to the court in writing that she would “not seek to admit the actual r ecordings, rather, just [defendant’s] knowledge of, and response to, su ch statements.” Thus , just as the claim that the recordings s hould have been introduced as im peachment evidence could only be raised via an ineffective assist ance claim, so too with the admissibility of the recordings in defendant’s case-in-chief.15 Court. (See People v. Algire (Dec. 17, 2013) B244557, o pn. ordered nonpub. Mar. 19, 2014.)
Defendant nonetheless maintains that trial counsel provided ineffective assistance by not arguing that the Right to Truth-in-Evide nce provision nullified Penal Code section 632, subdivision (d) in criminal ca ses. But for the same reasons stated in the previous section pertaining to the use of the audio recordings as impeachment evidence, defendant cannot demonstrate defici ent performance or prejudice in this direct appeal. The shortcomings of the record ings (e.g., vague, sometimes nonsensical statements) meant that counse l could have had viable reas ons for wishing to rely on defendant’s testimony and the cross-examina tion of mother, rather than trying to introduce recordings that were not particul arly probative of anything. The recordings were arguably relevant to the defense, but defense counsel accomplished more or less the same thing through cross-exam ination 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.