Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR192787
Jenkins, J.
Defendant Mack Cudgo appeals the judgment and sentence imposed following his jury-trial conviction for sodomy by use of force, in violation of Penal Code section 286, subdivision (c) (2). Defendant contends the judgment should be reversed on the following grounds: (1) the jury was prejudicially influenced by extraneous evidence and intimidation; (2) the prosecutor committed misconduct during his cross-examination of the defense expert; (3) the trial court erroneously denied his motion to continue sentencing; (4) the jury verdict was not supported by substantial evidence; (5) cumulative error. We conclude there was no error, and affirm the judgment.
Further references are to the Penal Code unless otherwise noted.
Facts and Procedural Background
In February 2008, the District Attorney of Solano County filed an information charging that on or about August 5, 2007, defendant committed the act of forcible sodomy on A.S. The charge was tried before a jury in November 2008.
At trial, the victim A.S. testified about her relationship with defendant and events on the night in question. A.S. testified that she first met defendant in 1999 and by 2001 the two were in a sexual relationship. Around 2003, defendant began a relationship with someone else and fathered a child. A.S. and defendant lost touch for a while and then she met him again at a job fair in early 2006. The next time A.S. saw defendant was on Mothers’ Day in May 2007, when she and a girlfriend ran into him at a bar. They got along well and had sexual relations that day. A.S. saw defendant again in the same bar in early August 2007. On that occasion, defendant became angry with A.S. because she was interacting with other males in the bar. She said defendant sat on the other side of the room and gave her “evil looks.” A few days afterwards, on August 5, 2007, they had a text message conversation. Defendant accused A.S. of “trying to play him.” A.S. assumed defendant was referring to what happened at the bar a few days before. She suggested they talk about it and agreed to visit defendant, who lived less than five minutes away from her home by car. A.S. arrived at defendant’s house at about 10:30 p.m. A.S. liked defendant and went there knowing she might have sex with him.
Defendant was waiting for A.S. when she arrived at his residence, and they went through a side entrance straight into defendant’s bedroom. A.S. knew defendant had a roommate but did not see or hear anyone else in the house while she was there. Defendant left A.S. in the bedroom and said he would be right back. The television was on and could be heard throughout the room. A.S. sat on the bed until defendant came back about 15 minutes later. Defendant sat next to A.S. on the bed and they talked a little about what happened at the bar. After that, A.S. and defendant became intimate and engaged in vaginal intercourse. At first A.S. was lying on her back. She then she turned onto her stomach and continued to have vaginal intercourse. Defendant then asked A.S. if he could have anal intercourse, and she refused. Defendant did not say anything, then A.S. felt defendant push his thumb into her anus. A.S. jumped and said, “Mack, don’t do that. Stop.” Defendant said, “Okay, calm down.” Defendant then pushed A.S. down flat on her stomach and inserted his penis into her anus. A.S. tried to push up but she couldn’t move. She was crying and when she attempted to scream defendant wrapped his hand around her mouth. A.S. had difficulty breathing and was in fear because she did not understand what was happening. She tried to pull defendant’s hand away from her mouth but defendant brought his other hand around and placed both hands over her mouth. Defendant scratched A.S.’s face below the eye and the next day her face was swollen. A.S. stated that defendant “rammed” his penis into her anus several times. He stopped when he rolled off her. A.S. did not know if defendant ejaculated inside her while penetrating her anally.
A.S. got off the bed and stood up. All she wanted to do was get out of there, but she stood for a moment because she felt very dizzy. Defendant, who was lying on the bed with his hands behind his head, said, “You putting too much on it.” A.S. threw on some clothes, grabbed the rest, and ran to her car. She immediately called her cousin J.A. on her cell phone and told him what had happened. She had to repeat what she said to J.A. because she was crying so hard. When she arrived home, J.A. helped her into the house and then called her friend, C.S. C.S. came over within minutes. A.S. told C.S. that she had been anally raped and C.S. called 911.
At some point, police arrived at the house and took A.S. to Kaiser hospital in Vallejo. At the hospital, a nurse questioned A.S. about what happened and conducted a sexual assault examination, which included taking photographs of her anus. The next day, A.S. had a lot of pain and noticed there was blood present when she urinated. A.S. testified that after the night in question she had no contact with defendant whatsoever, other than in court.
In addition to the victim’s testimony, the prosecution also presented testimony from Mr. J.A. (the victim’s cousin and roommate), C.S. (the victim’s best friend), City of Vallejo Police Officer Carl Dean (responding officer), and Kari Garcia (the sexual assault nurse examiner who interviewed and examined A.S. on the night in question). J.A. testified that he is A.S.’s cousin and has known her all his life. The two share a house together in Vallejo. Late in the evening of Sunday August 5, 2007, he was at home when A.S. called him on his cell phone. A.S. sounded hysterical and was crying. She told J.A. to come outside to meet her as she arrived home. J.A. went outside and saw A.S. parked in the middle of the street. He got into the passenger seat. A.S. told him that she had been anally raped by defendant and that defendant put his hand over her face as he raped her. As A.S. was telling J.A. this, she was having trouble breathing, as though she was having an asthma attack. J.A. put his arm around A.S.’s shoulder and helped her into the house. Once inside the house, J.A. called C.S., a close friend of A.S. who lives nearby. After C.S. arrived and learned what had happened, she said they should call the police.
C.S. testified that has known A.S. for about three years and considers her a best friend. She also knows J.A., A.S.’s cousin. On the evening in question, C.S. was at home asleep when she was wakened by a call from J.A., who asked her to come to the house because something was wrong with A.S. When C.S. arrived at the house, she saw A.S. in bed crying. C.S. had never seen A.S. in a state like this before. A.S. told her that she had been anally raped by a “guy named Mack.” C.S. told A.S. not to take a shower and called 911.
Officer Carl Dean testified that at about 12:30 a.m. on the morning of August 6, 2007, he was dispatched to A.S.’s residence in Vallejo. When he arrived at the residence, Dean found A.S. lying on the bed crying and described her as being “obviously upset.” A.S. told Dean what had happened. Dean noticed that she had a scratch about half an inch long under her right eye, which appeared to be a recent injury.
Kari Garcia, the sexual assault nurse examiner who interviewed and examined A.S. on the evening in question, testified for the prosecution as an expert in the area of sexual assault exam and findings. Part of her training involved learning to distinguish between a laceration in the anus inflicted by a sexual assault and other naturally occurring conditions, such as anal tags, anal fistulas and hemorrhoids. Garcia conducted a sexual assault examination on A.S. between 1:45 a.m. and 3:30 a.m. on the morning of August 6, 2007. Garcia interviewed the patient, conducted a physical examination and produced a report of her findings.
A.S. reported that she was anally raped, in particular that defendant inserted his thumb and then his penis four or five times into her anus. She also reported that defendant “held my mouth by his two hands and pulled me towards him.” A.S. was unsure whether defendant ejaculated. Garcia noted a fresh injury to A.S.’s face, which she described as “a half-inch laceration with erythema (redness) and blood.” Garcia also conducted a physical examination of the anal area. Garcia did not conduct a physical examination of the vaginal area because A.S. reported that she had engaged in consensual vaginal intercourse. Garcia carried out a physical examination of A.S.’s anal area using a colposcope, a magnification tool that takes photograph images with a 35mm camera. Garcia observed a laceration or tear at “nine o’clock” on the anal folds just outside the anal orifice. There was no doubt in Garcia’s mind that the injury was a laceration and not a naturally occurring anatomical condition. Garcia took photographs of the injury with the colposcope. Upon completing her physical examination of the victim, Garcia concluded that the physical injuries she observed to the victim were consistent with the history recited by the victim. Garcia stated she could not conclude that the laceration to the victim’s anus was definitely caused by forced anal intercourse. Garcia noted that in conducting about 150 sexual assault exams she had never seen injuries to the genital area so severe that they could only have been caused by a forcible sexual assault. Garcia described a study published in the American Journal of Obstetrics and Gynecology in 2004. The study showed that of 819 women who were examined after a sexual assault, 41 percent showed no sign of injury to the vaginal or anal area. Of the 819 women in the study, 141 complained of anal penetration. Of the 141 women complaining of anal penetration, 72 percent showed no trauma when examined by colposcope, and only 16 percent showed evidence of anal laceration. After Garcia completed her testimony, the jury heard a stipulation by the parties that the two anal swabs Garcia took from the victim were examined in a toxicology lab for the presence of sperm and both tested negative.
When Garcia reviewed the photos several weeks later after they had been developed, she noticed that they were out of focus and did not show the laceration clearly.
The defense case consisted of testimony by Doctor Steven Gabaeff, an emergency physician at Sutter Amador Hospital in Jackson, California, who testified as an expert in the area of sexual assault exams and findings and Lorrinda Stoddard, defendant’s roommate. Also, defendant testified in his own defense.
Dr Gabaeff opined that sexual assault nurses do not have the expertise required to differentiate between a sexual assault injuries and normal genital anatomy. Part of the problem, according to Gabaeff, is that the sexual assault nurse accepts that the patient is telling the truth, and studies have shown that false accusations are in the range of 20 percent.
Gabaeff further opined that Garcia’s examination of the victim fell below the standard of care. In support of this opinion, Gabaeff noted that Garcia did not examine the vagina for ejaculate. According to Gabaeff, if ejaculation took place in the vagina and no trace of ejaculate was found in the anus, then it is practically impossible that anal penetration followed vaginal penetration. Also, Garcia should have screened the victim for drugs because “the role of drugs in sexual assault is prominent.” Furthermore, in the context of an alleged sodomy, Garcia should have examined the victim with an anoscope, an instrument about six inches long, which permits examination of the anal canal and lower part of the rectum for tissue damage as well as the collection of body fluids from that area.
Gabaeff also testified that he had examined the photos taken by Garcia with the colposcope and opined that they showed “no evidence here of a laceration at all.” In addition, Gabaeff stated that physical findings associated with anal intercourse often disappear within 24 hours. Gabaeff found it significant that the victim was examined within about two and a half hours of the incident because there should have been have been signs of blood, swelling, redness and fecal material around the anus given the sexual assault she allegedly suffered.
Lorrinda Stoddard testified that defendant lived in her house in a bedroom that had previously been a garage. The house, according to Stoddard, does not afford residents much privacy because everything can be heard through the heating vents. On the evening in question, a woman came over about 10:00 p.m. and went straight into defendant’s room. At some point, Stoddard heard defendant and the woman having sex, but she “didn’t hear any TV.” Stoddard never heard the woman scream, or say “no” or “stop.” Stoddard noticed the woman leave about 11:00 p.m. because she got up to look out of her window when the outside light came on. The woman was completely dressed and walked to her car. She did not appear to be in any distress. Some time after the woman left, police came to the house looking for defendant but he was not at home. About four days later, defendant showed Stoddard a text message on his cell phone that said “Sorry about what happened. Are you still mad at me?” Stoddard did not look at the date on the text message itself.
Defendant, testifying on his own behalf, told the jury he met A.S. in early 1999. They began a sexual relationship that lasted through 2007. They were never boyfriend and girlfriend and their relationship was strictly sexual. About a month before the evening in question, defendant saw A.S. in a bar after she failed to meet him, as planned, earlier that evening. He had no interaction with her at the bar and was not upset with her.
On the night in question, defendant was at home with a friend. A.S. texted defendant several times asking to come over. Defendant met A.S. outside as she arrived and escorted her into his room. Once inside his room, he got her a Coke and left her in the bedroom to go back and socialize with his friend until his other roommates arrived home. About ten minutes later, defendant went back to the bedroom. A.S. was in bed naked. Defendant got undressed and started to have vaginal sex with her in the missionary position. Defendant was not wearing a condom and ejaculated. Defendant denied that they changed position during sex, denied having any interest in anal sex, and denied that he engaged in anal sex with the victim. Moreover, defendant testified that during his sexual relationship with A.S., he never had vaginal sex with her in a non-missionary position. After they had sex, A.S. said, “Is this it?” Defendant replied, “What do you mean. This is the way our relationship has always been.” They dressed, and A.S. left. Defendant had “no bad vibes from her, no eerie feeling or nothing.”
About 1:00 a.m. in the morning, defendant received a phone call from a person who identified himself as a law enforcement officer. The caller said, “Mack, I need to talk to you. We don’t know where you live.” The caller never asked for defendant’s address. The caller/officer told defendant he needed to talk to him about A.S., then said, “Can you meet me at the local Chevron?” The Chevron is about three or four minutes from defendant’s house. Defendant got dressed, went to the Chevron station and waited there, but the police did not arrive. After about 20 minutes, defendant got a call from his roommate saying the police were at the house asking for him. Defendant stated he was arrested about five weeks later.
On November 19, 2008, the jury returned a verdict of guilty. On September 11, 2009, the trial court sentenced defendant to the midterm of six years in state prison. Defendant filed a timely notice of appeal on September 18, 2009.
Discussion
A. Jury Bias
Defendant contends he was denied the rights guaranteed under the federal and state constitutions to trial by an unbiased, impartial jury on the grounds that (1) one or more of the jury members were biased against him as a result of spectator misconduct amounting to jury intimidation; and, (2) the jury improperly considered extraneous evidence that defendant and defense witness Lorrinda Stoddard lived in a high crime area of Vallejo.
1. Jury Intimidation
(a) Background
Shortly after jury deliberations commenced, the bailiff reported to the court that Juror No. 7 told him, in the presence of the jury, that while she was walking to her car the day before someone “was looking at her with evil eyes” and made her feel very uncomfortable. At defense counsel’s request, the court instructed the bailiff to bring Juror No. 7 into court. Juror No. 7 told the court that the day before a man stared her down outside the courtroom, making her feel uncomfortable and placing her “in a little bit of fear.” Juror No. 7 said she wasn’t the only juror who got that feeling and the jury had talked about it as a group. Juror No. 7 identified the man as a spectator currently present in the courtroom. The man identified himself to the court as Phillip Lamoureaux.
The court questioned Mr. Lamoureaux. He stated he observed the trial the day before and denied any inappropriate behavior towards jury members. Lamoureaux offered to leave “if it’s going to cause any problems.” The court asked Lamoureaux to leave the courtroom.
After questioning Mr. Lamoureaux (see fn. 3, ante), the court brought the entire jury back into court. The court enquired whether anyone had shared an experience similar to the one described by Juror No. 7. In response, Juror No. 5 stated that during closing argument earlier that day two men were looking in the window of the courtroom. Juror No. 5 looked up and made eye contact. The men were looking directly at the jury and Juror No. 5 “felt very intimidated.”
The court admonished the jury that the incident described by Juror No. 5 may have been entirely unrelated to the case and that there is no evidence that either the prosecution or defendant was associated with that conduct. The court next stated: “So after all that being said, I need your assurance that whatever incident may have happened has got nothing to do with the trial; it’s got nothing to do with the facts; [and] it’s got nothing to do with the law that you are applying to the facts as you’re trying to figure them out. [¶] My question is, can you do that? And if you can’t, I want you to tell me, because these sides have a right to know whether or not you’ll be able to set aside your experience this morning and this woman’s experience yesterday afternoon. [¶] Is everybody ok with that?” The jury all nodded affirmatively after the court’s admonishment. The court again asked the jury, “Does everybody think they can proceed, or did you want to tell me anything else?” In response, Juror No. 6 stated, “I was just concerned about walking out to my car because I’m parked across the street.” The bailiff responded, stating he had “addressed [Juror No. 6’s] concern, and I told her and all the 12 members of the jury that we’re going to bring them through the back, and I will have a few deputies with me.” Thereafter, the jury returned to its deliberations and defense counsel moved for a mistrial, which the court denied without prejudice.
Defendant subsequently filed a motion for new trial in May 2009 based on jury intimidation and insufficiency of the evidence. Attached to the motion were several declarations, two by members of the jury and others by individuals who spoke with members of the jury, attesting to feelings of fearfulness or discomfort (or lack thereof) experienced by some members of the jury during deliberations.
(b) Analysis
“An accused has a constitutional right to a trial by an impartial jury. (Citations.) An impartial jury is one in which no member has been improperly influenced (citations) and every member is ‘ “capable and willing to decide the case solely on the evidence before it” ’ (Citations).” (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) “ ‘[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance... which suggests a likelihood that one or more members of the jury were influenced by improper bias.’ (Citation.)” (Id. at p. 294.)
In regard to defendant’s claim of jury intimidation, “ ‘[a] sitting juror’s involuntary exposure to events outside the trial evidence, even if not “misconduct” in the pejorative sense, may require... examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation. [Citations.]’ (Citation.) ‘[T]ampering contact or communication with a sitting juror[ ] usually raises a rebuttable “presumption” of prejudice. [Citations.]’ (Citation.) ‘Still, whether an individual verdict must be overturned for jury misconduct or irregularity “ ‘ “is resolved by reference to the substantial likelihood test, an objective standard.” ’ ” [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]’ (Citation.) We independently determine whether there was such a reasonable probability of prejudice. (Citation.)” (People v. Harris (2008) 43 Cal.4th 1269, 1303.)
Based on this record, we conclude there is no substantial likelihood that the jurors were actually biased against defendant on account of spectator behavior. The record reflects that three members of the jury expressed concerns to the court regarding spectator behavior: Juror No. 7 related her “stare down” experience with Mr. Lamoureaux as she went to her car the day before the jury rendered its verdict; Juror No. 5 related his experience of seeing two men looking in the window during closing argument; and Juror No. 6 expressed a concern over walking to her car parked across the street. None of the jurors reported any verbal or physical threats of any kind, and there is no evidence at all of any unauthorized contact with the jury by written or verbal communication.
Rather, the record reflects that the jurors’ concerns arose from the non-verbal experience of being stared at by Mr. Lamoureaux and two other unidentified individuals. This does not raise a substantial likelihood that that the jury harbored actual bias against defendant. Other courts have reached the same conclusion under comparable circumstances. (See In re Hamilton, supra, 20 Cal.4th at p. 306 [objective circumstances of attempt to intimidate juror by “silent menace” (defendant’s sister and the sister’s boyfriend parked in an alley behind juror’s house and drove away when the juror appeared) gave rise to no substantial likelihood of actual bias]; People v. Panah (2005) 35 Cal.4th 395, 480 [“spectator misconduct on the part of defendant’s supporters who, intentionally or not, made themselves conspicuous to the jurors in a manner that some of the jurors [understandably] interpreted as intimidating” does not amount to juror misconduct that denied defendant an impartial jury].) Thus, judged objectively on the record as a whole, there is no substantial likelihood that “one or more jurors were actually biased against the defendant” on account of their experience of being stared at. (People v. Harris, supra, 43 Cal.4th at p. 1303, emphasis added.) Moreover, we see no merit in defendant’s argument that the trial court should have conducted a more extensive inquiry of the jury’s concerns. The court’s discussion with all the jurors involved was adequate and complete under the circumstances. (See People v. Harris, supra, 43 Cal.4th at p. 1304 [required procedure for handling a presumptively prejudicial incident of juror tampering is to hold “a prompt hearing to explore the circumstances of the threat and the possibility of bias”].)
By our remarks, we do not mean to be either dismissive of, or unsympathetic to, the subjective feelings of discomfort, or even fearfulness, felt by some jurors (either expressed in court or attested to in declarations) in response to individuals staring at them inside or outside the courtroom.
In sum, we conclude that the entire record before us, “including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant” based on the alleged spectator misconduct. (People v. Harris, supra, 43 Cal.4th at p. 1303.)
3. Extraneous Evidence
(a) Background
In June 2009, defendant filed a supplement to his motion for a new trial, presenting newly discovered information in support of his claim. The new information was set forth in a declaration by Melissa Dague, an attorney employed by defendant’s trial counsel who conducted post-trial investigation for the defense. Dague stated in her declaration that Juror No. 7 related she is a resident of Vallejo, was familiar with the area in which defendant and defense witness Stoddard lived, and knew it to be a “high-crime, high-narcotics area.” In a supplemental declaration dated August 25, 2009, Juror No. 7 stated that she shared this information with the other members of the jury.
The trial court denied defendant’s motion for a new trial at the sentencing hearing held in September 2009. Regarding the issue of extraneous evidence, the court ruled: “I’ll make a finding that the jury probably should not have considered the neighborhood where the defendant lived. They shouldn’t have considered that because they had no evidence of that, but... actual bias has not been shown. There’s not a substantial likelihood that a different verdict would occur... had they not done that.”
(b) Analysis
“A juror who... ‘shares improper information with other jurors’ commits misconduct.” (People v. Tafoya (2007) 42 Cal.4th 147, 192.) “Jury misconduct ‘raises a rebuttable “presumption” of prejudice.’ (Ibid.) Whether jury misconduct was prejudicial presents a mixed question of law and fact “subject to an appellate court’s independent determination.” (People v. Danks (2004) 32 Cal.4th 269, 303.) “ ‘The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.’ [Citation.]” (People v. Tafoya, supra, 42 Cal.4th at pp. 192-193.) Under this second, or “circumstantial, ” test, the entire record must be reviewed to determine whether bias was likely, and this includes “the nature of the juror’s conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issues at trial, and the strength of the evidence against the defendant.” (In re Carpenter (1995) 9 Cal.4th 634, 654.)
Here, we conclude there is no evidence of bias under either test. Under the first test, the information that defendant lived in a “high crime, high narcotics” area, judged objectively, was not by its very nature so damaging or inflammatory in and of itself that the information was substantially likely to have influenced the vote of one or more jurors, (see In re Carpenter, supra, 9 Cal.4th at p. 653 [extraneous information is inherently prejudicial only if its “erroneous introduction in the trial itself would have warranted reversal of the judgment”]): Rather, information about the area in which a crime was committed is the sort of common background knowledge jurors are likely to bring to their deliberations. (See People v. Marshall (1990) 50 Cal.3d 907, 950 [noting that the knowledge jurors bring to their deliberations must be accepted as both a strength and a weakness of the judicial system].)
Even though the extraneous information received by the jury about the area in which the crime took place was not inherently prejudicial, under the “second, or ‘circumstantial, ’ test, ” we must examine the totality of the circumstances “to determine objectively whether a substantial likelihood of actual bias nonetheless arose.” (In re Carpenter, supra, 9 Cal.4th at p. 654.) Here, although Juror No. 7 told the jury the crime took place in a “high crime, high narcotics” area, this reference fails to establish “actual bias” against defendant, especially since the evidence showed the victim lived in the same area. Moreover, information about the neighborhood in which the crime took place was not material to the key issue at trial, namely, whether defendant, as claimed by the victim, sodomized her after consensual vaginal intercourse. On this issue, the evidence presented by the prosecution was very strong. This evidence included the testimony of the victim and the corroboration of the victim’s testimony by three witnesses to whom she reported the crime immediately after it occurred (J.A., C.S. and Officer Dean). These witnesses also testified how the victim’s demeanor indicated the distress she was under in the wake of her ordeal, which was also reflected in the 911 call played to the jury. The victim’s testimony was further corroborated by the physical injuries she displayed, including the fresh scratch on her face and the laceration found to her anal orifice. In sum, in light of the record as a whole, we conclude it is not “substantially likely” the jury was actually biased against the defendant. (People v. Tafoya, supra, 42 Cal.4th at pp. 192-193.)
B. Prosecutorial Misconduct
During cross-examination Doctor Gabaeff, the defense expert in the area of sexual assault exams and findings, testified that he kept notes about his findings in this case on his computer, but did not write a report because he was not asked to do so by defense counsel. Gabaeff acknowledged the prosecutor wrote to him asking for written report and he refused to provide a report unless the prosecutor paid for it. Thereafter, the prosecutor asked, “Now, one of the reasons that you actually didn’t produce a written report in this case is you did not want me to have an opportunity to be able to know what you were going to say, so I could have a chance to meaningfully cross-examine you, true? Gabaeff answered “No.” Defense counsel then objected to the question as argumentative, and the trial court sustained the objection.
Based on the above exchange, defendant contends the prosecutor committed misconduct in his cross-examination by “creating the false inference that the defense prevented the prosecutor from meaningfully cross-examining Gabaeff by refusing to provide him with a written report.” Defendant also asserts the challenged cross-examination violates the rule that a prosecutor may not ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist. This contention lacks merit.
During his cross-examination of Doctor Gabaeff, the prosecutor undertook a line of questioning seemingly aimed at undermining the weight of Gabaeff’s testimony by showing that, unlike Nurse Garcia, he had not opened his findings to peer review by putting them in the form of a written report. During this line of questioning, Gabaeff said often times he does not produce a report because the “public defenders with low budgets... don’t have the funds” to pay for it. Defense counsel did not object to any of these questions. Ultimately, the prosecutor concluded this line of inquiry with the question suggesting that Gabaeff had not prepared a written report in order to frustrate an effective cross-examination by the prosecution. Defense counsel immediately objected to this question as argumentative, and the trial court sustained the objection. Based upon our review of the record, we reject defendant’s claim of prosecutorial misconduct. The prosecutor was entitled to inquire about whether Gabaeff had prepared a written report or documented his findings in some other discoverable form. (See People v. Lamb (2006) 136 Cal.App.4th 575, 580 [defense must disclose not only expert’s written report but also any “statements of experts made in connection with the case”].) The fact that the prosecutor asked one question to which the court sustained an objection does not establish prosecutorial misconduct. (See People v. Freeman (1994) 8 Cal.4th 450, 495 [“[M]erely asking a question to which an objection is sustained does not itself show misconduct.”].) Moreover, even assuming for purposes of argument that the prosecutor’s question was improper, it did not amount to prejudicial misconduct under either the federal or state constitution. (See People v. Gionis (1995) 9 Cal.4th 1196, 1218-1219 [prosecutor’s conduct did not “render the trial fundamentally unfair” or amount to “a deceptive or reprehensible method of persuasion, ” therefore it “did not constitute misconduct under federal or state standards. (Citations.)”].)
C. Motion to Continue Sentencing Hearing
The jury returned its guilty verdict on November 19, 2008. The sentencing hearing was initially set for January 9, 2009, but was not held until September 11, 2009. During the intervening nine months, the hearing was continued on multiple occasions so that defendant could prepare a motion for new trial and obtain telephone records in support of his motion. Defendant made his penultimate request for a continuance at the hearing on August 21, 2009, on the grounds Metro PCS had not yet provided the documents requested in response to his subpoena. The court granted a further continuance until September 11, 2009, and at defendant’s request issued an order to show cause to Metro PCS. At the sentencing hearing on September 11, 2009, the court denied defendant’s request for a new trial. Defense counsel asked the court to grant a further continuance before imposing sentence, so that he could obtain the awaited telephone records and file another new trial motion. Counsel stated the additional ground for a new trial was trial counsel’s ineffective assistance in failing to obtain telephone records to corroborate defendant’s trial testimony that a police officer called and asked to meet at the Chevron station on the night in question. The trial court denied the request for an additional continuance, stating: “Well, I think the request, number one, is speculative and, number two, I think you’ve already had sufficient time.”
Defendant contends that the trial court’s denial of his further request to continue sentencing, made on September 11, 2009, constitutes an abuse of discretion that resulted in a denial of his constitutional rights to representation of counsel and due process of law. We disagree.
Continuances in a criminal case may be granted only upon a showing of good cause. (§1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012 (Frye), disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A showing of good cause requires a demonstration that both counsel and the defendant have used due diligence in their preparations. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The determination of whether a continuance should be granted rests within the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Absent a showing of abuse of discretion and prejudice to the defendant, the denial of a motion for continuance does not require reversal. (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
Under these standards, no abuse of discretion is shown. After trial, the court continued the sentence hearing on multiple occasions so that defendant could gather evidence and documentation necessary to his motion for new trial. From the outset, defendant knew he would need telephone records to support the claim that the victim sent him a text message after the alleged rape asking if he was still angry with her. Defendant failed to obtain these telephone records in the ten months that elapsed between the jury verdict and the sentencing hearing on September 11, 2009. Thus, whereas at the September 11 hearing defendant stated an additional reason for wishing to obtain the telephone records, i.e., to corroborate his trial testimony he had been contacted by a police officer on the night of the rape, the fact remains the trial court had already delayed sentencing for almost ten months so he could obtain any documents necessary for his new trial motion. Moreover, the victim was present at the hearing on September 11, 2009, in order to address the court for sentencing purposes. The court was entitled to take that fact into account in denying a further continuance. (See (§ 1050, subd. (g)(1) [court shall into account convenience of witnesses in granting or denying a continuance].) In sum, there was no abuse of discretion. Accordingly, we also reject appellant’s constitutional claims. (See People v. Samayoa, supra, 15 Cal.4th at pp. 840-841.)
D. Sufficiency of the Evidence
Defendant contends that the prosecution failed to present substantial evidence that he forcibly sodomized the victim, thereby violating his rights under the federal and state constitutions to due process of law. This claim is meritless.
In reviewing the sufficiency of the evidence, “courts apply the ‘substantial evidence’ test. Under this standard, the court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Cuevas (1995) 12 Cal.4th 252, 260-261; Jackson v. Virginia (1979) 443 U.S. 307, 319 [“relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”].)
Here, there is ample record evidence to support defendant’s sodomy conviction. As noted above, the prosecution presented a strong case, which included the testimony of the victim, as well as corroboration of her testimony by witnesses to whom she reported the crime immediately after it occurred. The victim’s testimony was further corroborated by the physical injuries she displayed, including the fresh scratch on her face and the laceration found to her anal orifice. This evidence is easily sufficient for “a [rational] trier of fact [to] find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Cuevas, supra, 12 Cal.4th at pp. 260-261.) Furthermore, because defendant’s conviction is supported by substantial evidence, he suffered no deprivation of due process.
Defendant also contends that the cumulative effect of his claims of error prejudicially affected his case. However, because we affirmatively found no error, defendant’s claim of cumulative error necessarily fails.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.