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Filed 12/11/20 P. v. Kosanke CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY JOHN KOSANKE,

Defendant and Appellant.

C088967

(Super. Ct. No. 17FE013259)

Defendant Gregory John Kosanke was convicted of a lewd act and an attempted 

lewd act involving A., a child under the age of 14. (Pen. Code, §§ 288, subd. (a); 664.) 

The trial court sentenced him to an aggregate term of six years in prison.

Defendant now contends (1) the trial court abused its discretion, and thereby 

violated his due process rights, by admitting propensity evidence under Evidence Code 

section 1108 without holding an evidentiary hearing under Evidence Code section 402; 

(2) the trial court violated his constitutional right to present a defense by excluding, under 

Evidence Code section 352, the testimony of A.’s former Girl Scout leader that A. often 

exaggerated or invented injuries, which was relevant to A.’s dishonesty or reputation for 
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dishonesty; (3) even if the errors were individually harmless, they were cumulatively 

prejudicial; and (4) admission of propensity evidence under Evidence Code section 1108 

undermined the fundamental fairness of defendant’s trial and violated his constitutional 

rights.

We conclude (1) the trial court did not abuse its discretion or violate defendant’s 

due process rights by admitting propensity evidence without holding an evidentiary 

hearing; (2) the trial court did not violate defendant’s constitutional right to present a 

defense; (3) there was no cumulative prejudice because there was no error; and (4) the 

admission of propensity evidence did not violate defendant’s constitutional rights.

We will affirm the judgment.

BACKGROUND

Defendant’s contentions pertain to the trial court’s rulings on the admission of 

evidence. Because we review the correctness of those rulings in light of what the trial 

court knew at the time of the ruling (People v. Hendrix (2013) 214 Cal.App.4th 216, 243

(Hendrix)), we will provide a brief summary of the background here, and then in the 

discussion provide a more complete recitation of the record as relevant to the challenged 

evidentiary rulings.

Defendant coached a basketball team. His daughter R.R. and the 10-year-old 

victim A. were members of the team. After one of the games, A. went to defendant’s 

house for a sleepover with R.R. When R.R. and A. got into R.R.’s bed, defendant got 

partly under the covers next to A. and talked about the basketball game. As he did, he 

put his hand into A.’s pants and touched her vagina for about three seconds. A. pushed 

defendant’s hand away, defendant tried to touch her vagina again, and A. again pushed 

his hand away.

The prosecution presented propensity evidence consisting of defendant’s prior 

acts. In one incident, 12-year-old S.K. was playing with R.R. in the front yard of 

defendant’s home. Defendant swung S.K. around and put his hand on her vagina when 
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he set her down. In another incident at a birthday party, defendant approached S.K. while 

she was dancing with other children and put his body against hers, grinding on her back. 

She could feel his stomach, genitals, and knees against her. After these incidents, 

defendant’s family and S.K.’s family had a feud that began when defendant and his wife 

scolded S.K. for not playing with R.R.

Defendant testified and denied the conduct with A. and S.K. He also presented 

evidence regarding the feud between his family and S.K.’s family.

DISCUSSION

I

Defendant contends the trial court abused its discretion, and thereby violated his 

due process rights, by admitting propensity evidence without holding an evidentiary 

hearing under Evidence Code section 402. He claims defense counsel’s objection to the 

evidence and offer of proof, including defense counsel’s statement that he could show the 

prior-act evidence was false, required the trial court to hold an evidentiary hearing.

We first note that defendant’s briefing on this issue is deficient because he relies 

on the evidence introduced at trial to support his argument that the trial court should have 

held an evidentiary hearing before trial. He includes about 10 pages pertaining to 

evidence introduced at trial concerning the prior acts and the feud between the two 

families. As we have mentioned, however, we review the correctness of trial court 

rulings in light of what the trial court knew at the time of the ruling, not in light of later 

events or evidence. (Hendrix, supra, 214 Cal.App.4th at p. 243; see also People v. 

Hartsch (2010) 49 Cal.4th 472, 491 [motion to suppress]; People v. Welch (1999) 

20 Cal.4th 701, 739 [review of competency determination].) Defendant presents the 

evidence from trial because he says it was what an evidentiary hearing would have 

shown. But he presents no authority indicating we should consider the evidence from 

trial in this context. We will only consider the proceedings leading up to the trial court’s 

decision to admit the prior-act evidence, including defendant’s offer of proof.
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A

“Evidence Code section 402 provides a procedure for the trial court to determine 

outside the presence of the jury whether there is sufficient evidence to sustain a finding of 

a preliminary fact, upon which the admission of other evidence depends.” (People v. 

Galambos (2002) 104 Cal.App.4th 1147, 1156.) A full evidentiary hearing is not 

mandated by Evidence Code section 402 in cases such as this. The statute provides: 

“When the existence of a preliminary fact is disputed . . . . [¶] . . . The court may hear 

and determine the question of the admissibility of evidence out of the presence or hearing 

of the jury; but in a criminal action, the court shall hear and determine the question of the 

admissibility of a confession or admission of the defendant out of the presence and 

hearing of the jury if any party so requests.” (Evid. Code, § 402, subds. (a) & (b), italics 

added.) As in the present case, in “situations not involving confessions or admissions 

going directly to the crime charged, it is within the trial judge’s discretion as to whether 

[to] initially hear evidence outside the presence of the jury as to a preliminary fact that 

may bear upon the admissibility of proffered evidence.” (People v. Slocum (1975) 

52 Cal.App.3d 867, 888.) The trial court thus may exercise its discretion concerning 

whether to hold an evidentiary hearing outside the presence of the jury. (See People v. 

Williams (1997) 16 Cal.4th 153, 196 (Williams) [the trial court did not abuse its 

discretion in declining to hold a hearing outside the presence of the jury on the 

admissibility of gang evidence]; People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1211 

[the trial court did not abuse its discretion in declining to conduct an evidentiary hearing 

before allowing the prosecutor to call a witness over the defendant’s objection that the 

testimony was irrelevant and prejudicial], overruled on another ground in People v. 

Rangel (2016) 62 Cal.4th 1192, 1216.)

With this in mind, we recount the proceedings leading up to the trial court’s 

decision to admit the prior acts propensity evidence without holding an evidentiary 

hearing.
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B

The prosecution filed a motion in limine to admit evidence of defendant’s prior 

lewd touching of a 12-year-old girl, S.K., in 2011, under Evidence Code sections 1101 

and 1108. In connection with the motion in limine, the prosecutor made a written offer of 

proof. S.K. lived next door to defendant, and her family was invited to defendant’s 50th 

birthday party in 2011. S.K.’s father reported to police during the investigation in this 

case in 2016 that he observed defendant approach S.K., put his chest to her chest, and 

wiggle his chest against hers. S.K. immediately backed away. Defendant looked over at 

S.K.’s father and walked away. S.K. reported to police during the investigation in this 

case that defendant approached S.K. while she was dancing with other girls. He put his 

body against her and shook his upper and lower body against her. S.K. also reported that, 

on another occasion, she and defendant’s daughter R.R. were playing in the front yard 

when defendant picked up S.K. and swung her around. When he put her down, he 

grabbed her vagina over her clothes.

The defense filed an opposition to the prosecution’s motion to admit the prior-act 

evidence. In the opposition, defense counsel wrote that defendant and S.K.’s family were 

involved in a feud after defendant and his wife confronted S.K.’s family about S.K. not 

playing with R.R. According to defense counsel, S.K.’s family “joined forces” with A.’s 

family during the investigation in this case. Defense counsel attached police reports of 

interviews with S.K. and her father.

Defense counsel claimed that nearly everything S.K.’s family said to law 

enforcement turned out to be provable lies. He argued it was highly unlikely the alleged 

acts with S.K. happened given the lies, adding: “[T]he willingness of [S.K’s family] to 

lie about anything and everything to do with [defendant’s family] and the way [S.K.’s 

family] treated [defendant’s family] for years during their feud suggest a bias so 

pervasive, that under [Evidence Code section] 352 analysis, none of their evidence has 

sufficient reliability to be believed.” The defense asked the trial court to conduct an 
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evidentiary hearing under Evidence Code section 402 on the admissibility of the prior-act 

evidence.

The trial court held a hearing on the prosecution’s motion in limine. The 

prosecutor described the similarities between the prior acts and the current case. After 

arguing that the trial court could not do a full Evidence Code section 352 analysis based 

on the briefing, defense counsel gave a detailed description of the evidence he believed 

should lead the trial court to exclude the prior-act evidence. According to defense 

counsel, defendant’s family and S.K.’s family had been involved in a feud for five or six 

years. S.K.’s family engaged in reprehensible conduct toward defendant’s family, calling 

defendant’s wife names and engaging in conduct to annoy defendant’s family. S.K.’s 

family blamed defendant’s family for getting them kicked out of their rental. A.’s family 

searched the neighborhood for anyone to say bad things about defendant’s family and 

found only S.K.’s family. Witnesses from defendant’s 50th birthday party did not see 

defendant engage in any conduct with S.K. Even though S.K. said she told her parents 

about the touching when defendant swung her around, her parents claimed not to have 

heard about it. S.K. did not report defendant’s conduct until six years later. If S.K.’s 

family had anything on defendant or his family, they would have brought it up during the 

feud. Even though S.K.’s father said his family had no more contact with defendant’s 

family after the 50th birthday party, there is evidence they continued to have contact. 

Although S.K.’s family asserted that defendant molested another girl in the 

neighborhood, that girl denied being molested. Finally, defense counsel said: “The 

allegations themselves are so improbable. The one at the dance is just provably not true. 

The one where he’s twirling her around is not provably false, but doesn’t really make 

sense that these people who hate [defendant’s family] so much, their daughter would 

come tell them he touched me in my private parts when she was 12 years old and they 

would do nothing, not hear her, not register, doesn’t make any sense.” Defense counsel 

again asked for an evidentiary hearing.
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The trial court stated: “I have read all the attached motions and your report. A 

402 hearing is necessary if there’s a preliminary fact in dispute. And here what you’re 

arguing is basically there are people who would come and contradict what some of the 

People’s witnesses would say and it would go to their credibility, and you’ve also 

introduced statements regarding what bias they may have.” Concerning the birthday 

party incident, the trial court noted: “So, [the defense has] witnesses saying they didn’t 

see it. [The prosecutor] has two witnesses saying it did happen. So I understand that 

there are witnesses who are going to come and impeach or say something that is different. 

That is different than something that is absolutely not provable.”

After defense counsel argued the prior-act evidence would consume an enormous 

amount of time, the trial court accepted the defense’s offer of proof concerning the 

evidence and the bias of S.K.’s family. The trial court proceeded to a detailed analysis 

under Evidence Code sections 352 and 1108, which we need not recount here, and 

concluded it would admit the prior-acts evidence because the prejudicial effect of the 

evidence did not substantially outweigh its probative value and the evidence would not 

consume an undue amount of trial time.

C

Defendant contends the trial court’s refusal to hold an evidentiary hearing meant it 

did not perform an adequate analysis under Evidence Code section 352, especially 

concerning the probative value of the evidence and the consumption of time. To the 

contrary, the trial court addressed the probative value of the evidence and the 

consumption of time. When it did so, it had received the parties’ offers of proof. It 

understood the basic elements of the potential trial testimony and the substantial amount 

of time the prior-acts evidence would consume. Nothing more was necessary for the trial 

court to make an informed ruling on the admissibility of the evidence. Defendant fails to 

establish, based on what the trial court knew at the time of the ruling, that an evidentiary 

hearing under Evidence Code section 402 was necessary to a proper analysis of the 
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admissibility of the prior-acts evidence. The trial court did not abuse its discretion and 

did not violate defendant’s due process rights by ruling on the admissibility of the 

evidence without holding an evidentiary hearing. (Williams, supra, 16 Cal.4th at pp. 196-

197.)

II

Defendant next contends the trial court violated his constitutional right to present a 

defense by excluding, under Evidence Code section 352, the testimony of A.’s former 

Girl Scout leader that A. often exaggerated or invented injuries, which defendant claims 

was relevant to A.’s credibility or reputation for dishonesty.

We review the trial court’s evidentiary rulings under the abuse of discretion 

standard. (People v. Hamilton (2009) 45 Cal.4th 863, 944.) However, defendant asserts 

that, because he is making a constitutional argument, we must review this ruling de novo, 

giving no deference to the trial court. He is mistaken. Even when a defendant claims 

exclusion of defense evidence deprived him of his constitutional right to present a 

defense, we review the ruling under the abuse of discretion standard. (Ibid.; contra 

People v. Seijas (2005) 36 Cal.4th 291, 304 [de novo review when ruling affects 

defendant’s right to confront witnesses].)

Evidence Code section 352 provides: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” When a trial court 

excludes evidence under Evidence Code section 352, we will reverse only on a showing 

of prejudicial abuse of discretion, a showing that the trial court’s ruling was arbitrary, 

capricious, or patently absurd and resulted in a manifest miscarriage of justice. (People 

v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

The defense informed the trial court and the prosecutor that it intended to call 

Nicole Liotine, A.’s Girl Scout leader, as a witness to offer an opinion concerning A.’s 
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truthfulness and honesty. The prosecutor objected to admission of the testimony based 

on Evidence Code section 352. Defense counsel made an oral offer of proof: Liotine 

was A.’s Girl Scout leader with “plenty of opportunity to observe her interacting with 

other girls over the weeks and months leading up to the allegations.” Defense counsel 

added that he intended to question Liotine about A.’s reputation for truthfulness and 

honesty, citing Liotine’s observations that A. “was always pretending to be sick or hurt or 

injured, seeking attention.” The trial court noted that the defense had not given the 

prosecution notice of this testimony from Liotine and directed defense counsel to reduce 

to writing Liotine’s statements. After this discussion concluded, defense counsel 

informed the trial court that it misspoke and Liotine was not the witness who was A.’s 

Girl Scout leader. Instead, the Girl Scout leader was Joanne Brand. Defendant states in 

his opening brief that the trial court “appeared to exclude” the evidence concerning A.’s 

credibility and reputation for dishonesty. However, no such ruling appears on the cited 

page of the record on appeal.

After defense counsel got organized, the trial court entertained the issue of 

whether Joanne Brand, the former Girl Scout leader, would be able to testify that A. was

dramatic and always looking for attention, that she always had an “owie,” and that she 

would wear a knee brace or an arm brace. According to the offer of proof, it was Brand’s 

opinion that A. was not injured but was looking for attention and that she was dishonest. 

The trial court noted the defense could not establish A. was dishonest if there was no 

evidence the injuries were faked. The trial court observed that it appeared Brand’s 

opinion concerning A.’s reputation for truthfulness was based on speculation that she did 

not really have the injuries. The trial court excluded the testimony under Evidence Code 

section 352 because Brand’s opinion of A.’s dishonesty and reputation for dishonesty 

was based on speculation.

Joanne Brand later testified but did not opine on A.’s reputation for dishonesty. 

Defendant attempts to rely on some of those later proceedings to show the trial court 
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abused its discretion when it ruled on the admissibility of Brand’s testimony concerning 

A.’s credibility and reputation for dishonesty. We will not consider those proceedings 

because they occurred after the trial court made its ruling. (Hendrix, supra,

214 Cal.App.4th at p. 243.)

Defendant argues the trial court abused its discretion because the issue of whether 

A. was credible or had a reputation for dishonesty was essential to his defense. While we 

agree with defendant that testimony about A.’s credibility and reputation for dishonesty 

could have been relevant, the trial court appropriately noted that the way the evidence 

was presented was based on speculation. Brand observed that A. wore an arm brace or a 

knee brace, and Brand believed the injuries were faked. But the offer of proof did not 

indicate that A. was not actually injured, it merely indicated Brand thought A. was not 

actually injured. Therefore, Brand’s opinion that A. was dishonest or had a reputation for 

dishonesty was based on speculation. Under these circumstances, the testimony had little 

probative value, if any, and the trial court did not abuse its discretion by excluding it and 

therefore did not violate defendant’s right to present a defense.

III

Defendant contends that, even if the errors were individually harmless, they were 

cumulatively prejudicial. Because we find no error, we also conclude there was no 

cumulative prejudice.

IV

Defendant further contends admission of propensity evidence undermined the 

fundamental fairness of his trial and violated his constitutional rights. He acknowledges 

that we are bound by the decision of the California Supreme Court in People v. Falsetta

(1999) 21 Cal.4th 903, finding that admission of propensity evidence under Evidence 

Code section 1108 does not violate a defendant’s constitutional rights. Nonetheless, he 

asks this court to “add its respected voice to the conversation . . . .” We decline the 

invitation, except to note that Falsetta has been the law of California for 21 years now.
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DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

ROBIE, Acting P. J.

 /S/

HOCH, J.