PEOPLE v. STARK

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Rodney Fred STARK, Defendant and Appellant. IN RE: Rodney Fred STARK On Habeas Corpus.

Nos. D013167, D015181.

Decided: August 24, 1992

Cleary & Sevilla and Charles M. Sevilla, San Diego, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., and William M. Wood, Deputy Atty. Gen., for plaintiff and respondent.

OPINION ON REHEARING

Following conviction of eight counts of lewd and lascivious acts and four counts of oral copulation with a child, Rodney Fred Stark (Stark) appeals.   Stark asserts trial court error in excluding evidence, admitting evidence, and in rulings on other matters.   By petition for writ of habeas corpus, Stark also asserts ineffectiveness of his retained counsel at trial.

Because our review of the record has demonstrated that the challenged rulings were correct, or in any event no prejudice appears, we affirm the judgment.   Because the factual predicate for the assertion of ineffective counsel is absent, we also deny the petition for writ of habeas corpus.

STATEMENT OF THE CASE

By information filed May 14, 1990, the District Attorney of San Diego County charged Stark with 12 sexual offenses with Clayton T. (Clayton, also known as “Tyker”).   All of the counts alleged Stark occupied a special position of trust and engaged in substantial sexual conduct with Clayton.

A jury found all charges and allegations true.   On September 28, 1990, Stark was sentenced to state prison for a total term of 16 years, 8 months.   On September 3, 1991, the sentence was modified to a total term of 15 years in state prison.   Stark filed timely notice of appeal, and has also petitioned for writ of habeas corpus.   We have consolidated the appeal and writ petition for disposition.

STATEMENT OF FACTS

Stark, born in 1948, had been a sixth grade teacher in the Poway Unified School District since leaving the Navy in 1973.   Stark also had a long association with the Boy Scouts, having been a Boy Scout until entering the Navy, and an assistant Scoutmaster and Scoutmaster thereafter.   Stark was divorced in 1978, and his son Ryan lived with him during all relevant times.   As Scoutmaster of the largest Boy Scout troop in San Diego, more than 1,000 boys had been involved in Stark's Boy Scout troops.

Stark and the T. family both live within a mile of each other in Rancho Penasquitos.   Clayton's older brother, Chris, was a member of Stark's Scout troop, attaining the rank of Eagle Scout.   In the summer of 1986, preparing to enter the sixth grade and celebrate his eleventh birthday, Clayton also joined Stark's Scout troop.   One of Clayton's first Boy Scout campouts with Stark was a trip to Camp Pendleton.

On the Camp Pendleton trip Clayton slept in a tent next to Stark.   Clayton awoke during the night because Stark was fondling him.   Clayton didn't know what to do, and so he pretended to still be asleep.   Clayton was confused because of his fondness for Stark, who was “real nice to the Scouts” and “fun to be around” because “he wouldn't be like a normal adult” and was “real nice” to Clayton.

In the summer of 1987 Clayton and Stark attended a Boy Scout gathering in Mexico.   While Stark and Clayton were driving in Stark's vehicle on the winding dirt road leading to the camp, Stark reached over and fondled Clayton's penis for a few minutes, keeping his hand outside Clayton's clothes.   On one of the nights at this campout Stark's troop was awakened by a fire at a nearby campsite.   As they laid back down, Stark reached inside Clayton's sleeping bag and fondled his penis.   Then Stark leaned over, put his head inside Clayton's sleeping bag, and orally copulated Clayton.   While Stark was touching him, Clayton had an erection.

During the summer of 1988 Clayton attended another Boy Scout gathering, a three-night stay at Camp Mataguay.   Stark and Clayton were sleeping with a group near the road.   Stark slept about a foot away from Clayton.   Clayton was once more awakened by Stark's fondling, which caused Clayton to have an erection, and which again was followed by oral copulation.  (These incidents were charged as Counts 7 and 8.)

At another campout in the summer of 1988, at Indian Flats, Clayton and Stark were playing cards by lantern light while lying on their sleeping bags.   Stark began to fondle Clayton outside his shorts, and Clayton had an erection.   Stark then leaned over and pulled Clayton's shorts down until his penis was showing, and then Stark orally copulated Clayton.   During the touching, Stark would make a snake-like motion with his arm towards Clayton.   The next night Stark, who was between Clayton and another scout, again fondled Clayton.  (These incidents were charged as Counts 9, 10 and 11.)

In September 1988 Clayton attended a camp at Crestline, on Palomar Mountain.   The first night Clayton slept alone, in order to earn a merit award.   The next morning Clayton joined a group of scouts playing Penguin Encounter, in which boys standing encased inside their sleeping bags attempt to knock each other down.   After several rounds of the game, Clayton flopped down near Stark, who had been watching.   Stark reached over and fondled Clayton inside the sleeping bag.  (This incident was charged as Count 12.)

In early 1990 Stark invited Clayton to go with two other boys (Stark's son Ryan and another boy also named Ryan) and Stark on a four-wheeling back country trip.   While Clayton was seated on the center console, Stark reached under Clayton's shirt and into his underpants, and fondled Clayton (Count 5).   Clayton tried to ignore this.   That night at the camp site Stark again fondled (Count 4) and then orally copulated Clayton (Count 3).   The next day Stark allowed his son Ryan and the other boy to drive the vehicle.   Stark also allowed Clayton to drive while sitting on Stark's lap.   While Clayton was steering, Stark reached inside Clayton's pants and fondled his penis (Count 6).   Clayton pushed Stark's arm away several times, but Stark continued his activities.

Clayton was scheduled to go on a Boy Scout campout at Camp Hual–Cu–Cuish the last weekend of February 1990.   Clayton did not want to go, and attempted to be excused from attending.   Clayton's father observed his reluctance to go, and had noticed (although he did not then understand why) that after Clayton returned from a campout he would be “terrible to live with and not his normal character” and “just unbearable.”

The first night at Hual–Cu–Cuish Clayton did not sleep near Stark.   The second night, however, Clayton joined a group of boys who played cards with Stark until everyone fell asleep.   Later that night Clayton was awakened by a skunk passing by the sleeping area, and he in turn woke up Stark.

Stark told Clayton the skunk would go away, and it did.   After a minute or so Stark unzipped his sleeping bag, unzipped Clayton's sleeping bag, and reached into Clayton's bag.   Stark pulled Clayton's shorts down until they were out of the way, and then fondled Clayton's penis until he had an erection (Count 2).   Then Stark leaned closer, put his head into Clayton's sleeping bag, and began orally copulating Clayton (Count 1).

A few days after the Hual–Cu–Cuish campout, Clayton, who “had to tell someone,” decided to tell Jay Rafail, his pole vaulting coach.   Clayton felt he could trust Rafail to keep the problem secret, because Clayton was embarrassed, and also because he did not want to cause any trouble for Stark.   During a long telephone conversation Clayton told Rafail he was being molested by Stark.

The next day at school Rafail got Clayton out of class and advised him to go talk with the principal.   Clayton did not want to do this, but eventually decided to agree.   After talking with the principal, Scott Fisher, and the district superintendent, Dr. Robinson, Clayton's parents came to the school.   After talking with them, Clayton was told the police would be called.

Clayton was interviewed the next day by Officer Janet Wright, and then Detective Dana Gassaway came to Clayton's house.   Gassaway attached a recording device to a telephone, and Clayton made a telephone call to Stark.

Stark's son Ryan answered, and then Stark came on the line.  (Clayton's nickname of “Tyker” was typically shortened by Stark to “Ty,” a name for Clayton used only by Stark.)   The recording of the conversation was played for the jury.   After Stark took the call, this was the conversation:

“[STARK]:  Hello?

“[CLAYTON]:  Rod?

“[STARK]:  Hi.

“[CLAYTON]:  Hi.

“[STARK]:  Hi Ty.

“[CLAYTON]:  How you doin'?

“[STARK]:  Pretty good.   How 'bout you?

“[CLAYTON]:  Okay.

“[STARK]:  Okay, good.

“[CLAYTON]:  Um, I have to talk to you about somethin'.

“[STARK]:  Yeah.

“[CLAYTON]:  Um I was thinking about quitting Scouts because you keep giving me, you know, blow jobs and playing with me.

“[STARK]:  Mm, okay.

“[CLAYTON]:  Okay.   But see I really don't want to quit but see I have to because of you keep doing this.

“[STARK]:  No, well, it's up to you Ty.

“[CLAYTON]:  Cause [sic] I mean it's really been bothering me and

“[STARK]:  Okay.

“[CLAYTON]:  I don't know what to do about it.

“[STARK]:  Okay, well it won't happen any more.

“[CLAYTON]:  Okay, Um, okay.

“[STARK]:  Okay?

“[CLAYTON]:  Yeah.

“[STARK]:  Anything else?

“[CLAYTON]:  No.

“[STARK]:  Okay.

“[CLAYTON]:  Okay.

“[STARK]:  Okay, take care, bye.

“[CLAYTON]:  Bye.”

Matthew S., a student at San Diego State University, also grew up in Rancho Penasquitos.   Matthew's sixth grade teacher and Boy Scout troop master was Stark.   In 1983 or 1984, when Matthew was in seventh or eighth grade, he would frequently visit Stark's house to practice playing drums or work on Stark's computer.   Matthew would sometimes spend the night at Stark's house, sleeping in a waterbed with Stark and Stark's son Ryan.   One morning Matthew awoke early to discover Stark had his hand on Matthew's genitals and was fondling him.   Matthew pretended to be asleep for the five or ten minutes this went on.   After this incident Matthew visited Stark less often, and would never again spend the night with him.

Chris T., Clayton's older brother, had also known Stark both as sixth grade teacher and Boy Scout leader.   Over several years of association with Stark, Chris had been bothered by Stark's inappropriate grabbing of Chris's groin area in wrestling matches.   Chris discussed this with others.   Also, while in Stark's jacuzzi with him once, Stark had put his foot in Chris's groin.   When Stark engaged in inappropriate grabs at the groin area of young boys, he would make a motion like a snake with his arm, as Clayton had described.   Chris never spent the night at Stark's house.

Nathan K. had also been in Stark's Scout troop.   During a summer camp five years earlier he had noticed Stark grabbing the genital area of boys in wrestling matches.   Stark's actions made Nathan K. and Chris T. feel awkward.

In his defense, Stark introduced the testimony of a number of witnesses as to his good character with respect to children and otherwise.   Stark also testified in his own behalf, and in general denied ever having molested Clayton at any time, denied having molested Matthew S., and also denied that Matthew had ever spent the night at his house.

According to Stark, the telephone call from Clayton had simply involved Clayton's crude way of telling Stark that he, Clayton, was quitting the Boy Scouts.   According to Stark, his statement to Clayton that “it won't happen any more” meant simply that he would no longer bend the rules in an effort to keep Clayton involved in the Boy Scouts.

In rebuttal, John C. testified he met Stark when he, John, joined the Boy Scouts in the sixth grade.   John testified that Stark had molested him from the time he was in the sixth grade through the eighth grade.   On a campout with the troop, John, in his sleeping bag, awoke to find Stark had his mouth on John's penis, although there were other people sleeping nearby.   John pretended to be asleep while Stark orally copulated him.

John also testified that Stark would often fondle him and orally copulate him in Stark's waterbed.   Stark would fondle and orally copulate John on many campouts, and Stark also made snake-like motions with his arm when grabbing John's groin while driving in Stark's car.   John was molested about 25 different times by Stark.

I. THE APPEAL

A. RULINGS EXCLUDING EVIDENCE1. Motive for Accusation

 Stark's first contention is that error was committed when the trial court excluded testimony which purportedly would have disclosed a motive for Clayton to have fabricated the charges against Stark.   In an offer of proof, counsel stated he had a witness willing to testify to “an unhealthy relationship, inappropriate” between Clayton and Jay Rafail, the pole vaulting coach with whom Clayton first discussed the molestations which Stark had committed on Clayton.   Another proposed witness would supposedly testify there was “actual inappropriate touching between Mr. Rafail” and Clayton.   The point of all this was supposedly to prove (1) Rafail was due to be terminated the day Clayton talked to the principal, and (2) the report by Clayton was a mere fabrication intended to preserve Rafail's job with the school district.   On this showing the court deferred resolution of the question until more proof on the issue appeared.

The key to the entire issue was the question of whether there was evidence to support the offer of proof,1 that Rafail in fact had been “scheduled for termination” the day Clayton talked with school authorities about Stark's actions.   When Michelle Yontz, a pool lifeguard and the witness in support of this proposition was examined, however, she related that her employment discussion with Rafail was the day after the molestations by Stark were brought to the attention of school authorities.   Whatever tenuous relevance there might have otherwise been to the alleged evidence of a “motive” to fabricate charges was thus erased.

“In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value.   Its rulings will not be overturned on appeal absent an abuse of that discretion.  [Citations.]”  (People v. Edwards (1991) 54 Cal.3d 787, 817, 1 Cal.Rptr.2d 696, 819 P.2d 436.)   No abuse of that discretion appears here.

Counsel's effort to get (in the words of the trial judge) “off into the daisy patch” of Clayton's relationship with Rafail was, in the circumstances of this case, quite comprehensible.   Clayton had been a very effective and straightforward witness, as were the other boys who testified about Stark's molestations.   In these circumstances Stark's trial strategy necessarily was to attempt to raise side issues concerning other witnesses, such as Rafail, particularly if he could thus substitute another person than Stark as the molestor who was involved with Clayton.   The facts, however, were fatal to this enterprise.   The showing made had too little relevance to support exploration of the matter before the jury, and the trial judge's restriction of this line of inquiry was correct.

Stark's constitutional rights were in no manner violated by this ruling.   While “a criminal defendant has a constitutional right to present all relevant evidence of significant probative value in his favor [citations], ‘[t]his does not mean that an unlimited inquiry may be made into collateral matters.’ ”   (People v. Jennings (1991) 53 Cal.3d 334, 372, 279 Cal.Rptr. 780, 807 P.2d 1009, italics in original.)   The inquiry into collateral matters attempted here for the purpose of portraying Clayton not as Stark's victim, but as a conspirator having an “unhealthy relationship” with Rafail while plotting to fabricate charges of molestation against an innocent Stark, was unsupported by any facts or evidence, and thus properly limited by the trial judge.   (People v. Kaurish (1990) 52 Cal.3d 648, 685, 276 Cal.Rptr. 788, 802 P.2d 278.)

2. Testimony of Intimidation of Police Officer Witness

 Stark next asserts error by reason of the trial court's refusal to permit a police officer witness called on behalf of Stark to testify concerning his “intimidation” by the deputy district attorney prosecuting the case.   San Diego police officer Kevin McNamara was a character witness for Stark, whom McNamara had known for 15 years.   Officer McNamara appeared at trial not in civilian attire, but in uniform, to testify on Stark's behalf.   After his testimony, Officer McNamara sought and was given an opportunity to speak with the judge in her chambers.

In chambers (and not under oath) McNamara related that he had spoken with the prosecutor prior to his testimony out of concern for his career.   He stated the prosecutor refused to offer him guarantees his appearance as a witness on behalf of Stark would be absolved, as she felt Stark had called McNamara primarily because of his employment as a police officer.   McNamara also told the judge that while he was upset by this exchange, it did not in any way affect his testimony, as he was “not going to sell out a 15 year friend.”

Thereafter trial counsel sought to put McNamara on the stand to tell the jury about the officer's “intimidation” by the prosecutor.   Trial counsel indicated Officer McNamara would testify that “direct pressure” by the deputy district attorney had caused him to “pause and definitely think about it,” but “did not cause him to testify differently at all.”   Because there was no effect on the officer's testimony, and because the question might well require the prosecutor and the investigating officer to take the stand and testify, the trial judge determined the issue “goes nowhere.   It raises, I think, a whole little mini trial on something that ultimately has no bearing on the case.”

On appeal, the argued grounds for relevancy of this testimony are (a) relevance to credibility of the witness and (b) relevance to the strength of the prosecutor's case (i.e., the deputy district attorney's supposed “intimidation” of Officer McNamara demonstrated the weakness of her case).

On the facts of this case, however, neither ground offers the slightest basis for Officer McNamara's testimony.  “The determination that an explanation of [the witness's demeanor] would be relevant to the jury's assessment of h[is] credibility was well within the discretion of the trial court.  [Citation.]”  (People v. Avalos (1984) 37 Cal.3d 216, 232, 207 Cal.Rptr. 549, 689 P.2d 121.)   Where, as here, there was no effect of any “intimidation” on the testimony of the witness (who in any event only testified as to character, rather than fact), there was no error.

3. Exclusion of Psychiatric Evidence

 Stark also claims that error was committed when the trial judge determined not to permit the testimony of a psychiatrist, Dr. Rabiner, medical director of a psychiatric hospital.   Stark asserts that under the reasoning of People v. Stoll (1989) 49 Cal.3d 1136, 265 Cal.Rptr. 111, 783 P.2d 698, such testimony was admissible, and its exclusion constituted prejudicial error.   While agreeing exclusion of the proffered testimony was error, we find there was no prejudice.

Rabiner testified that the definition of pedophilia was simply having a six-month history of sexual arousal by young children.   Some pedophiliacs have a history in their early lives of sexual abuse.   Rabiner did not administer any standardized tests to Stark, but did interview him once at the hospital.   During this interview with Rabiner, Stark “seemed forthright in discussing the events leading to his arrest.”

Based on this, Rabiner was prepared to testify “[t]here was no indication from my examination of any psychopathology.”   Rabiner felt Stark “certainly did not fit, given the history that I was able to obtain from him, the typical picture of the child molester.”   During Rabiner's interview of Stark he found no inconsistencies, but as to whether Stark was telling him the truth, Rabiner had “no idea.”   No psychological testing was performed.   A diagnosis of pedophilia “really hinges on the sexual arousal on the part of the individual, which he may conceal.”

Dr. Melvin Goldzband had testified as to the difficulty in making a diagnosis of pedophilia.   In considering whether to admit Rabiner's opinion that Stark did not display psychopathology, the trial judge observed “it would be much easier for me to just throw the psychiatrists on and let the chips fall where they may, but I think to make an honest decision based on what I have heard between Dr. Goldzband and Dr. Rabiner ․ when you start looking at the diagnosis of pedophilia, the bottom line is that the psychiatrist is asking the patient whether they have sexual fantasies, whether they have a history of [abuse] themselves, and what went on in the current case, all of which is a decision on the credibility of that patient.  [¶]  And that is what the jury does.”

The district attorney pointed out also that People v. Stoll had involved objective testing, well recognized in the scientific community, from which inferences might be drawn which would not be possible to draw from an interview.   The trial judge determined not to admit Rabiner's opinion because it was more properly a function of the jury to make credibility determinations as to Stark.

The People correctly point out (as did the district attorney at trial) that the opinion testimony held improperly excluded in People v. Stoll was based largely upon extensive psychological testing and interpretation of the test results.   The Supreme Court has summarized the holding in Stoll very clearly:  “[T]he defendant may be permitted to introduce expert character evidence, based on standardized tests and personal interviews, to the effect that his personality profile does not include a capacity for deviant behavior against children.  (See People v. Stoll (1989) 49 Cal.3d 1136, 1161 [265 Cal.Rptr. 111, 783 P.2d 698] )”  (People v. Jones (1990) 51 Cal.3d 294, 320, 270 Cal.Rptr. 611, 792 P.2d 643, italics added.)

People v. Ruiz (1990) 222 Cal.App.3d 1241, 272 Cal.Rptr. 368, relied upon by Stark, involved similar facts.   While that case involved exclusion of expert testimony to the effect “Ruiz did not share characteristics commonly associated with persons suffering from pedophilia” (id. at p. 1243, 272 Cal.Rptr. 368) the expert there “had examined Ruiz and had administered to him several standard psychological tests. ”  (Ibid., italics added.)   In this case no such standard test results, or any comparable evidence, was ever offered.

The absence of such standardized objective testing here distinguishes this case.   We do not agree with the contention advanced by the People, however, that this distinction supports disregarding the holding in Stoll, and excluding the proposed testimony of Rabiner as to his opinion of Stark's character.

As our Supreme Court has recently noted, “an appellate court should, in the usual case, defer to a trial court's decision admitting or excluding expert testimony.”  (People v. Sanders (1990) 51 Cal.3d 471, 505, 273 Cal.Rptr. 537, 797 P.2d 561.)   We cannot do so here.   Rabiner's testimony, while not based upon objective materials but instead only upon one interview with Stark, was nonetheless admissible character evidence, because “lack of sexual deviance is a character trait subject to proof by opinion testimony.”   (People v. McAlpin (1991) 53 Cal.3d 1289, 1306, 283 Cal.Rptr. 382, 812 P.2d 563.)   While the absence of standardized testing goes to the weight to be accorded this testimony, it has little to do with the relevance of the proposed testimony, which was the focus of the ruling below.   The ruling excluding the proffered testimony on grounds of lack of relevance thus was error.

 The remaining question is whether on this record such error was prejudicial.   As we have observed, the excluded matter here differed from the testimony improperly excluded in Stoll, and “while that difference does not affect its admissibility, it may affect its weight for purposes of prejudice analysis.”  (People v. McAlpin, supra, 53 Cal.3d at p. 1312, 283 Cal.Rptr. 382, 812 P.2d 563.)   Given the marginal value of testimony concerning the one interview with Stark, which could have had little probative effect, no prejudice appears from rejection of this testimony.

Exclusion of character evidence may require reversal in a close case, but here “a review of the transcript shows it was not merely ‘[Clayton's] word against [Stark's]’:  to have acquitted [Stark], the jury would have had to believe not only that [Clayton] was lying, but that [every other prosecution witness] was lying as well.”  (People v. McAlpin, supra, 53 Cal.3d at p. 1312, 283 Cal.Rptr. 382, 812 P.2d 563.)   In contrast to many prosecutions for child molestation, the victim in this case was an articulate and credible witness whose testimony was fully supported both by his contemporaneous statements to others and the similar-acts testimony of several other credible witnesses.

In sum, consideration of all the evidence received below demonstrates a very strong case for guilt.   Thus, “[e]ven if we assume the court abused its discretion [by excluding the proffered evidence], no prejudice appears.”   (People v. Jennings, supra, 53 Cal.3d at p. 372, 279 Cal.Rptr. 780, 807 P.2d 1009.   See also People v. Gonzalez (1990) 51 Cal.3d 1179, 1247, 275 Cal.Rptr. 729, 800 P.2d 1159, and our decision in People v. Vu (1991) 227 Cal.App.3d 810, 815, 278 Cal.Rptr. 153 [exclusion of expert opinion harmless].)   Because this was not a close case, “after a full review of the record we cannot conclude that it is reasonably probable that a verdict more favorable to defendant would have been reached in the absence of the error.”   (People v. McAlpin, supra, 53 Cal.3d at p. 1313, 283 Cal.Rptr. 382, 812 P.2d 563.)

4. Exclusion of Evidence of Stark's Habit or Custom

 In this area, Stark last contends error was committed by reason of the exclusion of proffered testimony on his behalf as to Stark's habit and custom in using the word “okay” when talking to Boy Scouts.   The witness proposed to testify that when Stark used the term “okay,” it means “okay, you're responsible for your own actions and you're capable of making decisions.”   The witness also stated, however, that the expression “blow job” was not normally heard on Boy Scout campouts.   While counsel offered this testimony to explain that Stark's statement “okay” after being accused of molestation by Clayton in the telephone call was not an admission by Stark of improper behavior, the trial court did not permit the testimony before the jury.

The trial judge refused the proffered testimony because, while “okay” might mean one thing in normal Scouting discussions, the telephone conversation in which Clayton accused Stark of sexual misconduct “is a different situation altogether.   It's a very bizarre and unusual situation.  [¶]  So I don't think this witness has the foundation to say what the defendant would mean by the word “okay” in this situation, and the request is denied.”

On appeal Stark argues Evidence Code section 1105 (“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom”) supports admissibility of the rejected testimony.   We disagree.   As the Law Revision Commission comments to this section point out, this evidence concerns “a regular response to a repeated specific situation.”   As the trial judge correctly pointed out, the proffered testimony did not pertain to Stark's response to the “repeated specific situation” of being accused of child molestation, and thus was not proper evidence of habit and custom, but merely “someone else's interpretation of what the defendant meant without any foundation, really.”   This ruling was correct.  (Cf. People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22, 214 Cal.Rptr. 832, 700 P.2d 446.)

B. OTHER OFFENSE/OTHER VICTIM EVIDENCE

 Stark contends the court committed prejudicial error by permitting testimony about previous incidents of molestation.   We do not agree the court committed error in allowing testimony about these most relevant incidents.

Evidence of a defendant's prior bad acts or uncharged crimes is inadmissible to show he had the criminal propensity to commit the crime charged.  (Evid.Code, § 1101, subd. (a);  People v. Scott (1987) 194 Cal.App.3d 550, 552–556, 239 Cal.Rptr. 588.)   However, Evidence Code section 1101, subdivision (b) permits admission of prior “bad acts” if relevant to resolving an issue in the case or to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.

“The admissibility of other-crimes evidence depends on three principal factors:  (1) the materiality of the fact sought to be proved or disproved;  (2) the tendency of the uncharged crime to prove or disprove the material fact;  and (3) the existence of any rule of policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352.  [Citations.]”  (People v. Sully (1991) 53 Cal.3d 1195, 1224, 283 Cal.Rptr. 144, 812 P.2d 163;  see also People v. Gordon (1990) 50 Cal.3d 1223, 1239, 270 Cal.Rptr. 451, 792 P.2d 251);  and our decisions in People v. Bergschneider (1989) 211 Cal.App.3d 144, 161, 259 Cal.Rptr. 219, and People v. Callan (1985) 174 Cal.App.3d 1101, 1108–1109, 220 Cal.Rptr. 339.

If the court determines the evidence is relevant, the court then must also determine whether its probative value substantially outweighs its prejudicial effect.  (Evid.Code, § 352.)   The court must affirmatively articulate it has weighed probative value against prejudice.  (People v. Farmer (1989) 47 Cal.3d 888, 906, 254 Cal.Rptr. 508, 765 P.2d 940.)

In People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, the court rejected the theory that evidence of prior sex offenses was admissible solely to corroborate the complaining witness.  Tassell states evidence of other past crimes must be relevant to an issue actually in dispute in the present case.  (Id. at p. 88, 201 Cal.Rptr. 567, 679 P.2d 1;  see also People v. Thompson (1980) 27 Cal.3d 303, 165 Cal.Rptr. 289, 611 P.2d 883.)   While Stark relies upon the latter case to dispute the relevancy of the challenged testimony to any matter “at issue” in this case, Thompson has been “substantially limited,” and “contrary to Thompson, it appears that defendant's plea does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence under Evidence Code section 1101, unless the defendant has taken some action to narrow the prosecution's burden of proof.”  (People v. Daniels (1991) 52 Cal.3d 815, 857–858, 277 Cal.Rptr. 122, 802 P.2d 906, fns. omitted.)   As our decision in People v. Callan, supra, 174 Cal.App.3d 1101, 220 Cal.Rptr. 339 makes clear, other offenses which are close in time, similar to the charged acts, and committed against similar victims are relevant and admissible to show a common scheme or plan in molestation cases.  (Id. at p. 1110, 220 Cal.Rptr. 339.)

In Callan, we held that other-offense other-victim testimony of uncharged acts “was material and relevant.”  (People v. Callan, supra, 174 Cal.App.3d at p. 1110, 220 Cal.Rptr. 339.)   Here, the evidence demonstrates a common scheme and plan of Stark's to (1) use his position of authority to meet boys about age 12, and (2) obtain their trust, then (3) initiate physical contact which (4) became sexual in nature during night time periods sleeping near the children, with (5) the type of sex act (fondling of penis followed by Stark's oral copulation) and (6) the location of the activity (Stark's home, car, and campouts) being remarkably similar in all cases.   Thus, as we have seen, in this case the evidence of Stark's other offenses had much material value here in resolving issues in dispute.

C. OTHER OFFENSE/SAME VICTIM EVIDENCE

 Stark next asserts it was error to admit Clayton's testimony concerning two prior incidents of abuse in addition to the charged offenses.   Stark relies on the “rule” of People v. Stanley (1967) 67 Cal.2d 812, 817, 63 Cal.Rptr. 825, 433 P.2d 913, to the effect that “the trier of fact is not aided by evidence of other offenses where that evidence is limited to the uncorroborated testimony of the prosecution witness.”   The People argue the “rule” cited above did not survive enactment of Proposition 8.   We need not here decide the question, however interesting.   Wholly apart from the fact Clayton's testimony was corroborated, for the reasons which follow, we conclude there was no Stanley violation, and, even assuming such error, it would in any event be harmless.

In this case the testimony of Clayton as to the earliest incidents of molestation was admissible for the same reason the evidence of offenses against other boys was admissible, to show Stark's motive, intent, and scheme in commencing molestations of young boys, with the initial overtures starting soon after the young boy would enter Stark's Boy Scout troop.   Clayton's testimony as to the uncharged offenses, properly limited by the trial court's instructions to the jury as to the purposes for which it could be considered, was correctly admitted.  (People v. Gallego (1990) 52 Cal.3d 115, 171–172, 276 Cal.Rptr. 679, 802 P.2d 169;  People v. Gordon, supra, 50 Cal.3d at pp. 1239–1240, 270 Cal.Rptr. 451, 792 P.2d 251;  People v. Callan, supra, 174 Cal.App.3d at p. 1112, 220 Cal.Rptr. 339.)

 Even assuming the evidence of the earlier offenses was not proper, we would have to determine whether the error was prejudicial.   That is, was Clayton's testimony as to asserted prior acts of abuse likely to have influenced the jury's verdicts on the offenses of which Stark was convicted?   In the circumstances, we are unable to say it is reasonably probable a verdict more favorable to Stark might have been returned absent Clayton's testimony as to the earlier acts of abuse.   This is especially so where, as in this case, the jury deliberations indicate the jurors had no difficulty resolving the issue of the respective credibility of the parties.   Thus “we do not think it reasonably probable that absent the testimony of [Clayton as to the earlier offenses] the jury would have reached a verdict more favorable to defendant.”  (People v. Daniels, supra, 52 Cal.3d at p. 860, 277 Cal.Rptr. 122, 802 P.2d 906.)

D. FIFTH AMENDMENT VIOLATION

 Stark also challenges his cross-examination at trial.   Prior to trial, by motion in limine Stark sought to exclude use of statements he had made during an interrogation after his arrest.   After hearing argument on the matter, the trial judge ruled there had been no Miranda 2 violation until a point in the interview where Stark had asserted his Fifth Amendment rights.   The court found the interview had been conducted in a non-coercive manner, and Stark's responses during the interview indicated he fully understood his rights.   On these findings, the trial judge ruled the People could use evidence of Stark's statements for impeachment if he testified at trial.3

Stark did testify at trial, and on direct examination he denied having committing any offense against Clayton.   The prosecutor thereafter impeached his denial with evidence that, during the interview which followed his arrest, Stark had equivocated and failed to deny the charges clearly.   Trial counsel again asserted this evidence was not relevant, or was impermissibly prejudicial.

The trial judge disagreed, holding that while evidence of an invocation of his Fifth Amendment privilege by Stark would itself be inadmissible, equivocal statements were properly admissible in impeaching Stark's clear denials at trial that he had committed any offense.

While not challenging the non-coerced and voluntary nature of his statements, Stark argues the statements used for impeachment were in fact invocations of his Fifth Amendment rights, and thus inadmissible under Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91.   Whether a defendant has invoked his Fifth Amendment rights “is a question of fact to be decided in light of all the circumstances.”  (People v. Hayes (1985) 38 Cal.3d 780, 784, 214 Cal.Rptr. 652, 699 P.2d 1259.)   We review the trial court's resolution of this mixed question of law and fact independently.   (People v. Benson (1990) 52 Cal.3d 754, 779, 276 Cal.Rptr. 827, 802 P.2d 330;  People v. Jennings (1988) 46 Cal.3d 963, 979, 251 Cal.Rptr. 278, 760 P.2d 475.)

Stark argues responses he made to the effect that “I am not saying one way or the other” and “I am not going to answer that” constituted invocations of his Fifth Amendment rights.   In People v. Ashmus (1991) 54 Cal.3d 932, 969–970, 2 Cal.Rptr.2d 112, 820 P.2d 214, our Supreme Court reviewed a trial court determination admitting in evidence statements made after a suspect in custody said, “ ‘now I ain't saying no more.’ ”   The court held:  “Within their context—clearly in the transcript and more clearly still in the audiotape—defendant's words cannot reasonably be deemed an invocation of his right to silence.   He spoke to his interrogators;  he uttered the words in question;  and without hesitation he proceeded to speak to them further.   He evidently sought to alter the course of the questioning.   But he did not attempt to stop it altogether.”  (Ibid.)

In this case also, “clearly in the transcript and more clearly still in the audiotape,” both of which we have reviewed, Stark's responses (such as those cited above) cannot reasonably be deemed invocations of his right to silence, but of his decision to limit the course and scope of his response.  (People v. Silva (1988) 45 Cal.3d 604, 629–630, 247 Cal.Rptr. 573, 754 P.2d 1070.   See also People v. Mickey (1991) 54 Cal.3d 612, 648–653, 286 Cal.Rptr. 801, 818 P.2d 84.)   No rights of Stark were violated by permitting the prosecutor to question him concerning his earlier statements which were inconsistent with his testimony at the time of trial.  (People v. Thompson (1990) 50 Cal.3d 134, 164–166, 266 Cal.Rptr. 309, 785 P.2d 857.)

E. BIAS OF JUROR

 Stark's next assertion of error concerns alleged misconduct by a juror.   The juror, Rita Costello, recognized the witness, Matthew S., as someone who lived in her neighborhood.   In chambers it developed that the juror had only a slight acquaintance with the witness, had no opinion one way or another on the witness's credibility, and would not be affected in her actions by this minimal knowledge.   Trial counsel had no question concerning the truthfulness of these responses, and did not seek to have the juror removed.

Later, however, after the trial judge cautioned the juror to keep her acquaintance with the witness to herself, the juror indicated that one other juror had guessed from her reaction that she knew the witness.   Trial counsel at this point desired to remove the juror, but the judge determined instead to admonish the jury not to consider matters outside the evidence received in court.   This was proper.

Jury “misconduct raises a presumption of prejudice that may be rebutted by proof that no prejudice actually resulted.  (People v. Holloway [1990] 50 Cal.3d [1098,] 1108 [269 Cal.Rptr. 530, 790 P.2d 1327];  People v. Honeycutt (1977) 20 Cal.3d 150, 156 [141 Cal.Rptr. 698, 570 P.2d 1050].)   There was, however, no misconduct․  As the trial court found, the jur[or] did nothing improper.”  (People v. Cooper (1991) 53 Cal.3d 771, 835, 281 Cal.Rptr. 90, 809 P.2d 865.)   Given the trivial nature of the “misconduct” and the merely speculative possibility another juror would somehow be influenced thereby, the court's actions here were correct.

F. FRESH COMPLAINT EVIDENCE

 Stark next argues that evidence of Clayton's “fresh complaint” was received too many times.   Although objection was made to this evidence twice, other aspects of Clayton's coming forward and discussing Stark's molestation of him were received without objection, or were not objected to on the grounds now urged on appeal.   In these circumstances, any asserted error in receiving this evidence is waived.  (People v. Benson (1990) 52 Cal.3d 754, 788, 276 Cal.Rptr. 827, 802 P.2d 330;  People v. Gallego, supra, 52 Cal.3d at p. 174, 276 Cal.Rptr. 679, 802 P.2d 169.)   Because the theory on which the evidence now is urged to be inadmissible was never urged before the trier of fact as to the bulk of said evidence, the issue is not reviewable on appeal.  (People v. Lang (1989) 49 Cal.3d 991, 1018, 264 Cal.Rptr. 386, 782 P.2d 627.)   In any event, whatever possible error may have been committed in over-receiving evidence of the circumstances under which Clayton made his complaint was, on this record, clearly harmless in that no other result is reasonably probable.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

G. TRIAL COUNSEL EFFECTIVENESS

Stark asserts his trial counsel was ineffective in failing to take “actions to protect against improper prosecution conduct.”   Stark points to three instances of alleged “prosecution overreaching and intimidation” to support this claim of trial counsel's ineffectiveness.

Specifically, it is asserted (1) counsel did not properly protect Michael D., a witness on Stark's behalf, (2) counsel improperly failed to request a mistrial or an admonition with respect to a question concerning a death threat against Clayton by one of Stark's supporters, and (3) counsel failed to protect his client against inadmissible evidence concerning whether Stark had offered Clayton money to go on a campout.   We consider these matters in turn.

 As the trial court noted, during the examination of Michael D. the court formed the “distinct impression he is not telling the truth.”   At a break in the proceedings, the prosecutor remarked to her investigator that the witness might be committing perjury.   The witness apparently overheard this remark and reported it to defense counsel, who notified the judge.   Counsel advised the witness to walk around a little before coming back to the stand.

Nothing in this transaction implicates ineffectiveness of counsel.   The determination to let the matter pass, rather than having an extended inquiry into these collateral areas (which may well in fact have involved the witness's committing perjury) was well within the range of tactical matters committed to the sound judgment of trial counsel.   Stark “has the burden of proving counsel's unreasonable performance and resulting prejudice.   [Citations.]”  (People v. Gallego, supra, 52 Cal.3d at p. 205, 276 Cal.Rptr. 679, 802 P.2d 169.)   He has met neither prong of the burden here.

Nor can counsel be faulted for failing to move for a mistrial with respect to this incident.   It is a rare case in which the merits of a motion for a mistrial are so clear that counsel's failure to move for one amounts to ineffective assistance.  (People v. Jennings, supra, 53 Cal.3d at p. 380, 279 Cal.Rptr. 780, 807 P.2d 1009, citing People v. Haskett (1982) 30 Cal.3d 841, 854, 180 Cal.Rptr. 640, 640 P.2d 776.)   This is not such a case.

 Stark's arguments about a question asked one of his witnesses, John Tiffany, are without merit.   Tiffany was being questioned about his bias in favor of the defendant, and was asked if he was aware his son had made threats towards Clayton.   The line of questioning was eventually ruled irrelevant.   In the absence of any demonstration of bad faith or lack of basis for the enquiry, however, nothing in the mere asking of the question, when exploring bias of the witness, amounts to misconduct.  (People v. Fierro (1991) 1 Cal.4th 173, 233, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)   In any event there is no reason to question counsel's competence in determining not to call the matter to the jury's attention any further, and also no basis for a claim of ineffectiveness by reason of failure to have moved for a mistrial.  (People v. Jennings, supra, 53 Cal.3d at p. 380, 279 Cal.Rptr. 780, 807 P.2d 1009.)

Finally, Stark may not assert ineffectiveness of counsel with respect to the question asked Clayton about payment for going on camping trips.   The matter was the subject of an unreported conference at side bar.   The question is thus subject to the rule that where the record does not reveal the basis for an action or failure to act, “unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.  [Citation.]”  (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859, fn. omitted.)   There could be many reasons for counsel's actions herein, and we will not engage “in the perilous process of second-guessing.”  (People v. Miller (1972) 7 Cal.3d 562, 573, 102 Cal.Rptr. 841, 498 P.2d 1089.)   The assertions of error here are rejected.

H. REFUSAL TO DISCHARGE COUNSEL

 Stark next argues he should have been permitted to discharge his retained counsel after trial and before sentencing in this matter, relying on People v. Ortiz (1990) 51 Cal.3d 975, 981, 275 Cal.Rptr. 191, 800 P.2d 547 (“a defendant—whether indigent or not—who seeks in a timely manner to discharge retained counsel, ordinarily should be permitted to do so.”)   The key questions are, of course, whether the request here was “timely” and thus whether Stark should have been permitted to discharge trial counsel “ordinarily.”   Because the request here was most untimely, and would have disrupted the orderly administration of the case, this matter was not one in which “ordinarily” discharge of counsel must be permitted.

As our Supreme Court noted in the very case on which Stark relies, a “defendant's right to discharge his retained counsel, however, is not absolute.   The trial court, in its discretion, may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations].”  (People v. Ortiz, supra, 51 Cal.3d at p. 983, 275 Cal.Rptr. 191, 800 P.2d 547.)   Refusal to discharge counsel just prior to sentencing, in this lengthy and very complex matter where the reporter's transcript (which would be required for new counsel to function properly) was not to be available for several months, was well within the trial court's discretion.  (People v. Whitt (1990) 51 Cal.3d 620, 658–659, 274 Cal.Rptr. 252, 798 P.2d 849.)

I. SENTENCING ERROR

Stark's last contention on direct appeal is that the subordinate term imposed exceeds the five-year limit on non-violent felony convictions established by Penal Code section 1170.1, subdivision (a).   The People agree.   While Stark urges this court to reduce his sentence by the one year and eight months it exceeds the permissible, the People urge us to remand for resentencing.   The trial court here has already recognized the problem, however, and on September 3, 1991, that court issued a corrected order establishing Stark's total term at a lawful 15 years.   As the trial court has thus afforded Stark the relief requested, and notified all appropriate authorities, no further action by us is warranted.

SUMMARY

As the trial judge stated, “This case did hinge on credibility.   Every one of the prosecutor's young witnesses I found to be very credible, and in particular the complaining witness was a highly credible witness.  [¶]  At one point when he was asked in this courtroom how he felt about the defendant, that was the one time when he emotionally broke down to show us very spontaneously and clearly that he had had the highest regard for this man and had trusted him and had looked up to him and that this testimony was very difficult for him.   That rather emotional moment in the courtroom was a very telling one, I believe.”

This case was entirely about credibility, and as the trial judge observed, Clayton and other boys who testified to molestations were very credible, while Stark's testimony, denials, and explanations were not.   In another recent molestation case, our Supreme Court observed that “to the triers of fact the case may not have been as close as defendant now speculates.”  (People v. McAlpin, supra, 53 Cal.3d at p. 1313, 283 Cal.Rptr. 382, 812 P.2d 563.)   This record contains, as noted by the trial judge, overwhelming support for the verdicts rendered.   Thus, even were we to have determined error was committed in admission or exclusion of evidence or in another area, “after a full review of the record we cannot conclude that it is reasonably probable that a verdict more favorable to defendant would have been reached in the absence of this error.”  (Ibid.)

II. THE HABEAS CORPUS

On the habeas corpus petition, counsel for Stark returns to the question of the trial court's refusal to allow evidence of a supposed “motive” for Clayton to have fabricated allegations against Stark, asserting deficient performance by counsel in not presenting more clearly and forcefully his offer of proof.   As noted earlier, on this question Stark “has the burden of proving counsel's unreasonable performance and resulting prejudice.  [Citations.]”  (People v. Gallego, supra, 52 Cal.3d at p. 205, 276 Cal.Rptr. 679, 802 P.2d 169;  see also In re Marquez (1992) 1 Cal.4th 584, 602–603, 3 Cal.Rptr.2d 727, 822 P.2d 435.)   Neither element has been demonstrated, because (as on the appeal) the “factual” assertions underlying the application for writ of habeas corpus are unsupported.

Counsel urges us, in essence, to accept a hearsay report by a defense investigator as an operative “fact” in place of the sworn testimony at trial of the hearsay declarant, Michelle Yontz.   The crucial and dispositive issue on the offer of proof was the timing of Yontz's supposed advisement to Rafail of a scheduled interview concerning his job termination.   While the defense investigator's report indicates Yontz advised Rafail of this interview on February 28, the day before the molestation was reported to the school, at trial Yontz testified clearly that this conversation (which was only about performance, not job termination) occurred the day after Clayton reported the molestation.   This sworn testimony destroys any factual basis for a supposed conspiracy by Clayton and Rafail (and also many others) to falsely accuse Stark, and renders meaningless the accumulated hearsay statements of others submitted in support of the application for the writ.

This was not a close case.   Stark's commission of acts similar to those performed on Clayton was corroborated by testimony of other witnesses.   While some witnesses did characterize Clayton as untruthful, the jury nonetheless concluded Clayton's version of events was more credible than Stark's.   In these circumstances the excluded evidence is unlikely to have influenced the outcome of the trial.

Thus, even were we to assume (as Stark urges) there was another, earlier conversation about Rafail's employment, we would not inquire whether trial counsel's performance in this area was adequate or otherwise, because Stark has failed to demonstrate there is a reasonable probability of a different result.   In these circumstances “even if counsel's performance was deficient, [Stark] has failed to sustain his burden on the issue of prejudice.”  (In re Alvernaz (1992) 2 Cal.4th 924, 945, 8 Cal.Rptr.2d 713, 830 P.2d 747.)

On this evidence the trial judge properly precluded the defense efforts to impeach Clayton by suggesting that he, rather than having been in fact a victim of Stark's molestations, was instead a precocious homosexual plotting against an innocent Stark.   These suggestions, with no foundation in fact, were properly rejected in the trial court.   Their repetition now on this petition for writ of habeas corpus in no way adds to their merit.

DISPOSITION

Judgment affirmed.   Petition for habeas corpus denied.

FOOTNOTES

1.   This offer of proof is also the subject of the related habeas corpus petition, which asserts that “[i]f trial counsel failed to adequately present the proffer of this key evidence, he was ineffective.”   We resolve this contention, infra.

2.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

3.   This ruling was correct.   In 1974 California adopted the United States Supreme Court's view of the matter:  “A statement inadmissible as substantive evidence for violating Miranda may nevertheless be used to impeach a defendant's credibility if the statement is otherwise trustworthy.  (Harris v. New York (1971) 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1].)”  (People v. Nudd (1974) 12 Cal.3d 204, 207, 115 Cal.Rptr. 372, 524 P.2d 844.)   In People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272, however, the court decided to “overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California.”   Finally, In 1988 the court decided the question of “whether the Disbrow exclusionary rule survived the 1982 amendment of the California Constitution by Proposition 8 which added [section 28(d) ].  We find it did not.”  (People v. May (1988) 44 Cal.3d 309, 315, 243 Cal.Rptr. 369, 748 P.2d 307.)Thus, the proper inquiry for determining admissibility of statements for impeachment is not Miranda compliance, but whether the statements were “coerced or involuntary.”  (Harris v. New York, supra, 401 U.S. at p. 224, 91 S.Ct. at 645.)   The trial judge's determination here that Stark's statements were neither coerced nor involuntary is abundantly supported by the record before us.

NARES, Associate Justice.

WIENER, Acting P.J., and TODD, J., concur.