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Name: People v. Mestas
Case #: C066730
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/22/2013

In a child molestation case, the trial court did not abuse its discretion under Evidence Code section 782 by refusing to hold an evidentiary hearing on some of the proffered evidence of the victims’ sexual history. Appellant was charged with molesting his girlfriend’s younger sisters. Prior to trial, he filed a motion pursuant to section 782 to admit evidence of the victims’ sexual history, accompanied by a declaration detailing the intended evidence. Section 782 provides that if the court finds the offer of proof sufficient it shall order a hearing out of the presence of the jury at which the complaining witness may be questioned. If at the conclusion of the hearing the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted. Here, the court permitted a hearing as to only one of the victims and as to only specified allegations. At the hearing, after the victim stated she could not remember the alleged incidents, the court ruled that it would not allow introduction of past sexual incidents. The appellate court found that the trial court did not abuse its discretion by refusing to hold an evidentiary hearing on all the proffered evidence because there was no showing that any of the alleged prior incidents were sufficiently similar to the conduct in the instant offense and thus the evidence was not sufficiently probative of the victims’ credibility to require a hearing. Not admitting some evidence of a victim’s sexual history under section 782 does not violate a defendant’s fair trial rights because the court may properly exclude all such evidence under Evidence Code section 1103. The court also found no ineffective assistance of counsel for failure to investigate further because there was no showing of prejudice. Appellant’s claims as to what further investigation may have produced were merely speculative.