Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF0229, Gregg L. Prickett, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P.J.
Appellant was convicted of committing multiple sex crimes against his stepdaughters J.G. and M.C. As to three of the counts, the jury also found true the allegation that appellant engaged in the tying and binding of the victim for purposes of the one strike law. Appellant contends the trial court erred in excluding evidence the victims and their mother, S., have accused other men of sexually abusing them in the past. He also claims the court erred in denying his motion for a new trial, and all three of the true findings on the tying and binding allegations must be reversed. We hold that only one, not all three, of those findings must be reversed. We also hold appellant’s sentence must be modified to strike the order prohibiting him from having contact with the victims. In all other respects, we affirm the judgment.
FACTS
S. has led a chaotic life. In 1991, she married Matthew G. and gave birth to her first child B. J.G. was born three years later, in 1994. In 1997, S. married Carl C., and they had one child together, M.C., who was born in 1998. The following year, the family moved to Alaska. While there, S. separated from Carl and became romantically involved with appellant. Then, in 2001, S. and appellant moved to Connecticut, as did Carl. Both before and after the move, the children spent part of their time living with Carl and part of their time living with S. and appellant. Se., S.’s only child with appellant, was born at the end of 2001.
S. and Carl both have family in that state.
Se. arrived while S. and Carl were going through divorce proceedings. During that time, J.G., then age seven, accused Carl of having sexually molested her. That led to Carl being prosecuted in Connecticut on sexual abuse charges, of which he was acquitted.
In 2002, S. married appellant and they moved to Southern California with all four of the children. The first two years they were here, the family stayed mostly in homeless shelters and trailer parks. They then moved to a motel for about a year, and after that, they lived in an Anaheim townhouse until January 2006, which is when this case broke. Although appellant was still living with the family up until that time, there was evidence S. had become involved with other men, including a banker named Tony, before appellant was arrested.
Throughout their marriage, S. and appellant’s sex life was characterized by sadomasochistic behavior. Appellant was the dominant partner in the relationship and subjected S. to acts of bondage, gagging and even asphyxiation. S. testified she liked this type of sex and willfully participated in these acts. However, the problem was appellant did not limit his dominant sexual activity to just S.; he also subjected J.G. and M.C. to repeated acts of sexual abuse.
Many of those incidents occurred at the townhouse, inside appellant’s bedroom. There, appellant would make J.G. orally copulate him by threatening her or forcing her head down onto his penis. Sometimes he also put a handkerchief over her eyes or made her wear high heels and stockings, and one time he had a pornographic movie going on his computer while J.G. was orally copulating him. The computer, it was later discovered, contained both sexual images of adults and Hentai pornography (an animated style of pornography associated with child pornography).
J.G. was so repulsed by the smell and taste of appellant’s ejaculate that one time she vomited after appellant made her swallow his semen. Afterward, appellant gave his pants to B. and told him they needed to be washed because J.G. had thrown up on them. When B. looked at the pants, he noticed there was vomit on the crotch area. M.C. noticed vomit on the pants, as well.
Although J.G. was appellant’s primary victim, he also molested M.C. on several occasions by touching her breasts and making her engage in oral copulation. He also subjected both M.C. and J.G. to repeated acts of anal penetration with a foreign object. With M.C. he accomplished the penetration with his finger, and with J.G. he used various “sex toys, ” including some “purple anal beads, ” on which J.G.’s DNA was found, a “green vibrator” and a “glass dildo.” Although appellant perpetrated these acts in private, the family’s living quarters were always rather small. Thus, there were many times when B. heard muffled crying sounds coming from inside appellant’s bedroom. M.C. also heard crying sounds when J.G. was alone with appellant.
In counts 8, 9 and 10 appellant was charged with sodomizing J.G. by force. As to each of those counts, it was also alleged appellant engaged in the “tying or binding of the victim.” Appellant used various methods to subdue J.G. during the alleged acts. Sometimes he tied her hands with rope. Other times, he wrapped a handkerchief over her eyes or put a “ball gag” or a bandana in her mouth. And on yet another occasion, he sodomized J.G. while covering her mouth and nose with his hand, causing her to black out and involuntarily urinate on the bed. Later, appellant told S. their new puppy had peed on the bed.
Throughout the case, appellant denied any wrongdoing. At trial, he presented several character witnesses, as well as expert testimony that he was not a pedophile and that children’s memories can sometimes be unreliable. Appellant also presented expert testimony from a gynecologist who had examined J.G.’s colonoscopy results. He opined the results did not support J.G.’s claim appellant had penetrated her anus with vibrators and such.
The jury found as follows: As to J.G., it convicted appellant of three counts of oral copulation, three counts of forcible sodomy and one count of penetration with a foreign object. The jury also found appellant tied or bound J.G. during the sodomy offenses. As to M.C., the jury convicted appellant of one count each of oral copulation and penetration with a foreign object. It also found true allegations that appellant sexually abused multiple victims. As to five other charges, the jury was unable to reach a verdict. Those charges consisted of one count each of lewd conduct and penetration with a foreign object as to M.C., and one count of lewd conduct and two counts of penetration with a foreign object as to J.G. After denying appellant’s motion for a new trial, the court sentenced him to 107 years to life in prison.
I
Appellant contends the trial court erred in excluding evidence that J.G., B. and S. had made allegations of sexual abuse against other men in the past. He contends the exclusion of this evidence violated his right to confront and cross-examine witnesses and to present a defense, but we disagree and uphold the court’s ruling.
This issue stems largely from the above-mentioned case in which Carl was prosecuted for sexually abusing J.G. in Connecticut. That case arose in 2001 after J.G. told S. that Carl had molested her. After S. reported the allegation to the police, investigators interviewed her, J.G. and B., and all three of them testified for the prosecution at Carl’s trial. However, as noted, Carl was found not guilty of the charges.
Given that outcome, appellant’s attorney theorized Carl’s case was relevant to the present proceedings in that it demonstrated that some of the key witnesses against appellant — J.G., B. and S. — had made false allegations of child sexual abuse against another person in the past. Defense counsel argued Carl’s case was particularly relevant because, according to the discovery she had received, J.G.’s allegations against Carl were very similar to the allegations J.G. was making against appellant. Particularly, J.G. accused both men of tying her hands and arms, putting a ball gag in her mouth, blindfolding and sodomizing her, and forcing her to orally copulate them.
In light of these similarities, and the fact Carl had been acquitted, defense counsel argued Carl’s case was relevant to prove a pattern of deceit and false accusations by J.G., B. and S. Counsel theorized that, just as S. and the children had used false accusations to get rid of Carl so they could be with appellant, they were now using false accusations to get rid of appellant so they could be with S.’s new boyfriend, Tony. The defense viewed the circumstances surrounding Carl’s case as being relevant not only to the credibility of S. and her children, but also to show how they knew about the sexual acts that appellant allegedly committed against them.
Citing Evidence Code section 352, the prosecutor opposed any evidence regarding Carl’s case on the grounds it was prejudicially misleading and would be unduly time consuming to present. The prosecutor argued Carl’s acquittal did not prove J.G.’s claims against him were false, and since J.G. had not reneged on her claim Carl had molested her, the parties would have to devote an inordinate amount of time litigating the validity of that claim during appellant’s trial.
The court was much attuned to this concern. At a lengthy pretrial hearing on the issue, the court asked defense counsel how she intended to prove the allegations against Carl were false. Counsel said she planned to cross-examine J.G., B. and S. about the allegations and to have Carl testify they were not true. In addition, defense counsel intended to call several other witnesses who were involved in Carl’s case, including police officers and social workers. She estimated it would take several days to present these witnesses at trial, and the prosecutor said she would need several more days to present J.G.’s side of the story. Thus, the trial court was looking at over a week’s worth of additional testimony on this issue, in a trial that was otherwise expected to take about 10 days to complete.
In order to prove J.G.’s allegations against Carl were false, defense counsel said she also intended to rely on the fact Carl was acquitted in his trial. However, the court noted “a finding of not guilty is not a finding [that] it didn’t happen.” Thus, the verdict in Carl’s case could actually be somewhat misleading as to whether the accusations against him were true or not.
Beyond the time and proof issues, there were also questions about whether Carl would have the right to invoke his Fifth Amendment privilege as to possible acts of sexual abuse that were not encompassed within his trial. The parties did not know the extent to which Carl would be willing to discuss the particulars of the allegations that were made against him in Connecticut.
Given these concerns, the court made a tentative ruling that it would not allow the defense to introduce evidence from Carl’s case for the purpose of proving that J.G., B. and S. had made a prior false allegation of child sexual abuse. However, the court ruled the defense could elicit statements J.G. made in connection with Carl’s case to demonstrate her knowledge of any sexually related matters that were at issue in this case. The court reasoned this would give the defense ammunition in case the prosecutor argued that, given J.G.’s young age, she would not know about certain sexual acts unless appellant exposed them to her. While the court gave the defense leeway to use J.G.’s prior statements for this limited purpose, it emphasized it wanted the focus of appellant’s trial to be on whether he committed the charged offenses, and not whether J.G.’s prior allegations against Carl were true or not.
At trial, J.G. testified that after she and her siblings moved from Alaska to Connecticut, sometimes they lived with Carl and sometimes they lived with S. and appellant. Without mentioning Carl by name, defense counsel asked J.G., “Didn’t you tell the Connecticut social worker that you were molested by another person?” That prompted an objection from the prosecutor, and during an extensive hearing held outside the presence of the jury, the court and counsel hammered out the parameters of defense counsel’s questioning in this area. Ultimately, the court stuck to its earlier ruling that “it was appropriate for the jury to learn that [J.G. had knowledge of certain] sexual activities prior to the reporting in this case.” While the court did not want the defense to get into the specifics of Carl’s case, it did acknowledge that some context to the questioning was necessary so the jury would know appellant was not involved in Carl’s case.
When cross-examination resumed, J.G. denied making statements to anyone in another state that she was blindfolded or ball gagged, but she did admit telling a social worker that she was “tied up.” She further testified that said she could not remember if she made any statements about a man putting his penis in her bottom or in her mouth or about something of his tasting nasty, like “rotten eggs.”
At the S.t of appellant’s case, the court conducted yet another hearing on the issue. Following a detailed offer of proof, the court ruled the defense could elicit statements that J.G. made in connection with Carl’s case for two purposes. First, the statements could be used to show J.G.’s knowledge of certain sexually related matters that were at issue in this case. And second, they could be used to impeach J.G. insofar as they were inconsistent with her trial testimony.
To that end, the defense called a Connecticut police sergeant who interviewed J.G. in March 2002. He testified that when he asked J.G. if anyone had sexually abused her, she said someone had put a ball in her mouth and also told her to “suck on his privates.” A Connecticut social worker testified J.G. made a similar statement about a ball being put in her mouth, when she interviewed her in 2001. In addition, the parties stipulated that J.G. “testified on January 15, 2003, at a separate hearing under oath that she was blindfolded.”
Continuing on this theme, B. testified that J.G. had previously talked to him about the “rotten egg taste of ejaculate.” Signaling that the statement was not made in reference to appellant, B. said J.G. had made the statement to him at “another time and another place, not here.”
When questioned about the Connecticut proceedings, S. denied she had coached J.G. and B. when they were interviewed. But she did admit that their allegations involved various “sex acts” and that she told them that, as a result of their allegations, “the other person was taken away.”
Based on this evidence, defense counsel argued before the jury that J.G. knew full well of the power associated with leveling accusations of molestation against another person. Counsel asserted, “Back in the other state after statements about sex acts were made, the person went away. So... [J.G.] learned that the most effective way to get rid of someone is to accuse him of child molest.” The court sustained the prosecutor’s objection to this argument, in that it suggested J.G. had falsely accused another person of abusing her in the past. However, consistent with its earlier ruling, the court did allow defense counsel to argue that J.G.’s prior statements demonstrated her knowledge of certain sexual matters and that she lacked credibility because her prior statements contradicted her trial testimony.
Given all of the evidence and argument about Carl’s case, it is hardly surprising the jury was curious about it. During deliberations, the jury sent a note to the court asking, “Why haven’t prior allegations of molestation been explained after [they were] mentioned in trial?” In response, the court told the jurors, “You are to decide this case based only on the evidence presented to you [] and to decide if the prosecution has met its burden of proving each crime and allegation to you beyond a reasonable doubt.”
Quite clearly, the court did not want the jury speculating about what became of those prior allegations. The court also denied appellant’s request to introduce evidence that S. had falsely accused her own father of molesting her back in 1986. The court excluded the evidence “on 352 grounds, finding that it was too remote and it was collateral impeachment.”
Although appellant frames his argument in constitutional terms, the logical S.ting point for our analysis is the statutory rule set forth in Evidence Code section 352. Under that provision, “‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ ‘[A] trial court’s exercise of discretion under [that section] will not be reversed on appeal absent a clear showing of abuse’” meaning that “‘the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]’ [Citation.]” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.)
The trial court’s authority under Evidence Code section 352 includes the “discretion to admit or exclude evidence offered for impeachment.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) In fact, “‘the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 301.)
Nevertheless, it is well established that the defendant in a criminal trial must be afforded certain rights to ensure the basic fairness of the proceedings. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, [citations], the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ [Citation.]” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) Under these constitutional provisions, “the defendant in a criminal prosecution [has] the right of cross-examination, which includes exploration of bias. [Citation.]” (People v. Greenberger (1997) 58 Cal.App.4th 298, 349.)
Still, these rights only pertain to “relevant and material” evidence. (Washington v. Texas (1967) 388 U.S. 14, 23.) Evidence lacking significant probative value may properly be excluded without offending the constitution. (People v. Babbitt (1988) 45 Cal.3d 660, 684.) As the United States Supreme Court has explained, the confrontation clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics omitted.) Unlimited inquiry into collateral matters is not permitted. (People v. Jennings (1991) 53 Cal.3d 334, 372.) “Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, ‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 623; accord, People v. Greenberger, supra, 58 Cal.App.4th at p. 350 [the exclusion of “impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendant’s right of confrontation”].)
Applying these principles to the case at hand, it is clear the trial court did not abuse its discretion under Evidence Code section 352 or violate appellant’s right to present his defense or cross-examine witnesses. It is undisputed that “‘[A] prior false accusation of sexual molestation is... relevant on the issue of the molest victim’s credibility.’ [Citation.]” (People v. Tidwell, supra, 163 Cal.App.4th at p. 1457.) However, J.G.’s prior accusation of sexual molestation against Carl “would have no bearing on her credibility unless it was also established [that complaint was] false. [Citation.]” (Ibid., italics added.) And, establishing the falsity of that accusation would not have been an easy task in this case. Appellant argued below that Carl’s acquittal was evidence that the complaints against him were false, but as the trial court correctly observed, an acquittal in a criminal trial does not mean the accused did not commit the charged offenses. Rather, it simply means the jury was not convinced the prosecution had proved its case beyond a reasonable doubt.
As our Supreme Court has observed, “Our criminal justice system, which permits a conviction only if the jury unanimously finds beyond a reasonable doubt that a defendant is guilty of the particular charge, gives the defendant the benefit of the doubt. Moreover, a jury clearly has the unreviewable power, if not the right, to acquit whatever the evidence. An inevitable result of this system, and one that society accepts in its quest to avoid convicting the innocent, is that some criminal defendants who are guilty will be found not guilty.” (People v. Palmer (2001) 24 Cal.4th 856, 865.) That being the case, evidence of Carl’s acquittal had little bearing on appellant’s case. Contrary to defense counsel’s suggestion, it would not have proven J.G., B. and S. were liars. Instead, it would only have served to mislead the jury into thinking that had been previously established.
In order to prove these three witnesses had lied in connection with Carl’s case, the defense, by its own admission, would have had to call a slew of witnesses to prove Carl was factually innocent. The prosecution then would have had the right to cross-examine these witnesses and present evidence of its own to show Carl had in fact molested J.G. It is easy to see how this would have bogged down appellant’s trial and diverted the jury’s attention away from its main task, which was to assess appellant’s culpability, not Carl’s. The trial court was rightly wary of letting this happen. (See People v. Tidwell, supra, 163 Cal.App.4th at p. 1458 [“In addition to the weakness in the evidence concerning the falsity of the (victim’s prior) rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view (that the prior complaint was false) and the prosecution introduced evidence” that it was true.].)
Significantly, however, the trial court did not exclude any and all evidence regarding Carl’s case. Defense counsel was permitted to question S. as to her involvement in the investigation and whether she coached the children during their interviews with authorities in Connecticut. And, the court allowed defense counsel to question J.G. and several other witnesses about various statements that J.G. made as part of Carl’s case. This was important to appellant’s defense for two reasons. First, it demonstrated J.G. had previously talked about (and thus had prior knowledge of) such things as ball gags, blindfolds and ejaculate. As the trial court correctly predicted, this effectively prevented the prosecutor from arguing J.G.’s knowledge of such things could have only come about by virtue of appellant’s having exposed them to her.
Second, the court determined J.G.’s prior statements concerning Carl’s case constituted prior inconsistent statements. Consequently, defense counsel was allowed to use the statements to impugn J.G.’s credibility. The court also allowed the defense to impeach J.G. with various other statements she made in connection with appellant’s case, e.g., statements she made to Orange County investigators. And, the defense called several expert witnesses in an attempt to demonstrate J.G.’s allegations against appellant were not true. We do not believe it can be said the court violated appellant’s right of cross-examination or his right to present his defense.
All things considered, the court acted well within its discretion in limiting the amount of evidence the defense could present regarding Carl’s case. The court’s handling of this issue fairly comports with Evidence Code section 352 and did not amount to an infringement of appellant’s constitutional rights.
The same is true of the court’s decision to preclude the defense from eliciting evidence S. had accused her own father of molesting her when she was a girl. Because that evidence related to events that occurred over 20 years ago and was offered to impeach S. on an issue that was not directly related to this case, the court properly exercised its discretion in excluding it. No evidentiary error has been shown.
In connection with his claim the court erred in excluding evidence about Carl’s case, appellant asks us to review various documents that were subpoenaed by defense counsel before trial and filed under seal. Some of those documents were released to the defense, but not others. Having reviewed the documents, and the trial court’s notes pertaining thereto, we do not believe they would have had a material impact on appellant’s case. (See People v. Avila (2006) 38 Cal.4th 491, 607 [failure to release certain documents about a witness was not prejudicial where such failure did not prevent defendant from challenging the witness’s credibility through other means].)
II
Appellant also contends the trial court erred in denying his motion for a new trial based on newly discovered evidence. We disagree.
Following the verdict, the prosecutor became aware of various documents obtained and generated in connection with the dependency case that arose from appellant’s conduct in the present case. Upon learning of the documents, the prosecutor turned them over to the court, and it then released them to the defense. One of those documents is a Child Abuse Services Team (CAST) questionnaire S. filled out about J.G.’s medical history. On the questionnaire, S. reported J.G. once made a false claim of sexual abuse against one of Carl’s friends. According to S., J.G. made the claim out of anger and recanted it the very same day she made it.
Based on this information, appellant moved for a new trial on the grounds of newly discovered evidence. (Pen. Code, § 1181, subd. 8.) In opposing the motion, the prosecutor pointed out that in appellant’s dependency case, his attorney had asked S. about whether J.G. had ever claimed to have been sexually abused in the past, and S. said she had once accused Carl’s friend of touching her. In light of this response, the prosecutor argued appellant had sufficient information to investigate the circumstances of the prior allegation, and therefore the late disclosure of the CAST questionnaire was not cause for a new trial. The defense disagreed, claiming it had no way of knowing J.G. had actually recanted her claim against Carl’s friend until it received the questionnaire. In the end, the court denied appellant’s motion for a new trial, finding it was not reasonably probable he would have obtained a more favorable verdict had the CAST questionnaire been provided to him before trial.
Appellant argues the court applied the wrong standard in denying his motion. He admits that in seeking a new trial based on newly discovered evidence, a defendant generally must show the evidence is such as to render a different result reasonably probable on a retrial of the matter. (Pen. Code, § 1181, subd. 8; People v. Howard (2010) 51 Cal.4th 15, 43; People v. Delgado (1993) 5 Cal.4th 312, 328.) However, he claims a different standard should apply because in failing to disclose the CAST questionnaire before trial, the prosecution violated his rights under Brady v. Maryland (1963) 373 U.S. 83 (Brady). The claim is not well taken.
Brady held “the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) However, evidence is material under Brady only “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ (United States v. Bagley (1985) 473 U.S. 667, 682.)” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.) Therefore, whether considered under the newly discovered evidence rubric or the Brady standard, the same rule applies: A new trial is only warranted if it is reasonably probable that timely disclosure of the subject evidence would have resulted in a more favorable outcome for the defendant. (People v. Ochoa (1998) 19 Cal.4th 353, 473.)
That standard has not been met in this case. Granted, the evidence about J.G. having recanted an accusation of molestation against Carl’s friend could have been used to impeach her at trial. However, J.G. was subjected to vigorous cross-examination, which included pointed questioning about prior inconsistent statements she had made in connection with Carl’s case. While the details surrounding that case were not provided to the jury, defense counsel was permitted to elicit evidence indicating J.G. was not being forthright in terms of what she told authorities in that prior case. In addition, the defense was allowed to present evidence indicating J.G. had a potential motive to falsely accuse appellant of molestation, that being, to “get rid” of appellant so S. could be with her new boyfriend, Tony.
All of this may explain why the jury was unable to reach a verdict as to three of the counts involving J.G. Even without the CAST questionnaire evidence, there was no danger of the jury viewing J.G.’s testimony under a false aura of honesty. However, the fact remains, her testimony was corroborated by S., B. and M.C. in certain important respects.
For example, both B. and M.C. testified they heard J.G. crying out on various occasions while she was behind closed doors with appellant. They also noticed vomit on the crotch of appellant’s pants after J.G. threw up on them following an episode of forced oral copulation. In addition, S. testified that on the same day appellant caused J.G. to blackout and urinate on his bed while sodomizing her, he told S. that their puppy had peed on the bed. The evidence quite plainly demonstrated that while appellant tried to keep his abusive conduct toward J.G. and M.C. a secret, it was too prevalent to keep under wraps forever. Moreover, once it was disclosed, forensic testing revealed the presence of J.G.’s DNA on the purple anal beads appellant allegedly abused her with. Although the beads were kept in S. and appellant’s bedroom closet, and theoretically J.G.’s DNA could have gotten on them some other way, the most obvious explanation is that the DNA transfer occurred while appellant was penetrating her with the beads, as she testified.
The sum total of the evidence convinces us it is not reasonably probable appellant would have obtained a more favorable verdict had the CAST questionnaire been provided to him before trial and had he been allowed to impeach J.G. with the information it contained. Therefore, the trial court did not err in denying appellant’s motion for a new trial based on the prosecution’s failure to disclose this information to him as part of the pretrial discovery process.
III
Next, appellant challenges the jury’s true findings on the tying and binding allegations attendant to the forcible sodomy counts. His argument is three-fold: 1) the court erroneously defined the term “tying and binding” for the jury; 2) as defined by the court, the term is unduly vague; and 3) his conduct in covering J.G.’s nose and mouth during one of the sodomy acts is insufficient as a matter of law to constitute tying or binding. Finding these arguments meritorious, we will reverse the jury’s true finding on one of the tying and binding allegations.
Under the one strike law, a person is eligible for a life sentence if he commits a specified offense, such as forcible sodomy, under certain circumstances. (Pen. Code, § 667.61, subds. (a), (b).) One of the circumstances listed under the law is that “[t]he defendant engaged in the tying or binding of the victim[.]” (Pen. Code, § 667.61, subd. (e)(5).)
As to that circumstance, the jury was instructed as follows: “If you find the defendant guilty of [forcible sodomy as] charged in Counts, 8, 9, 10, ... you must decide whether, for each crime the People have proved the additional allegation that the defendant tied or bound [J.G.]... during the commission of those crimes. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (CALCRIM No. 3182.)
During deliberations, the jury sent the court a note, asking, “What is the difference between tied and bound? Would holding your hand over the person’s mouth constitute tying or binding?” Defense counsel wanted the court to respond to this question simply by telling the jury “no.” However, the court instructed the jury, “‘Tying or binding’ are actions which render a victim more particularly vulnerable, whether by restricting her freedom of movement or depriving her of one or more senses.”
The trial court derived this instruction from People v. Campbell (2000) 82 Cal.App.4th 71 (Campbell). In that case, the defendant was charged with the tying and binding allegation based on the fact he wound masking tape around the victim’s head and over her eyes before sexually assaulting her. Although the defendant did not bind the victim’s feet or hands during the assault, i.e., restrict the victim’s movement, the Campbell court determined there was sufficient evidence from which a jury could find that he engaged in the tying or binding of the victim.
In so finding, the court first looked to the dictionary definition of tying and binding. The court observed that “The verb ‘tie’ is defined as ‘to bind, fasten, make fast (one thing to another, or two or more things together) with a cord, rope, band, or the like ... to confine (a person or animal) by fastening to something, ’ while ‘bind’ is defined in its two principal senses as ‘To tie fast’ and ‘To tie about, bandage, gird, encircle.’ The noun ‘tie’ itself derives from Old Norse ‘taug, ’ or rope. [Citation.]” (Campbell, supra, 82 Cal.App.4th at p. 77, fn. omitted.)
The Campbell court also noted that, like the other circumstances which subject sex offenders to enhanced punishment under the one strike law (e.g., kidnapping, using a gun or drugging the victim), tying and binding has the effect of rendering the victim particularly vulnerable. (Campbell, supra, 82 Cal.App.4th at p. 78.) The court observed, “While the increased vulnerability of a victim whose hands or feet (or both) are tied is immediately clear, we cannot in any logical manner distinguish such an enhanced vulnerability from that inherent in being bound so as to be unable to see. In both instances the victim’s ability to flee her attacker, to resist the assault, or to summon help is severely impaired, and in the case of blindfolding, there is added vulnerability flowing from the psychological stresses associated with sensory deprivation.” (Ibid., fn. omitted.) Therefore, the court construed the tying and binding allegation to include “those actions which render a victim more particularly vulnerable, whether by restricting her or his freedom of movement or by depriving her or him of one or more senses.” (Id. at p. 80, fn. omitted, italics added.)
This construction may make sense when, as in Campbell, the defendant actually ties or binds the victim in some fashion. However, we can’t lose sight of the fact that, as worded, an essential requirement of the allegation is the “tying or binding of the victim.” (Pen. Code, § 667.61, subd. (e)(5).) Absent that requirement, it is not enough that the victim was deprived of one or more of her senses. A different interpretation could lead to the absurd situation in which a defendant is found to have engaged in the tying or binding of the victim for such things as turning off the lights or putting ear muffs on the victim during the underlying sex crime. We do not believe the Legislature intended the enhancement to apply to this sort of conduct. Rather, there must be some act of tying or binding that renders the victim particularly vulnerable.
Because the court defined tying and binding to include acts which merely deprive the victim of one or more of her senses, the instruction was erroneous. This error allowed the jury to find appellant’s conduct in covering J.G.’s nose and mouth with his hand amounted to tying and binding. However, as such conduct involved neither tying nor binding of the victim, it was legally insufficient to support the tying and binding allegation.
The court’s definition of tying and binding also created a vagueness problem because it extended the scope of the allegation so far beyond its actual text that a reasonable person would not know that it applied to placing a hand over the victim’s nose and mouth. (See generally Bloom v. Municipal Court (1976) 16 Cal.3d 71, 80 [consistent with due process, laws must be interpreted so that a reasonable person would know what type of conduct is prohibited thereby].) For that reason as well, appellant’s conduct in placing his hand over J.G.’s mouth and nose cannot be used to support the jury’s verdict on the tying and binding allegations. (Compare Campbell, supra, 82 Cal.App.4th at p. 80 [reasonable person would know that binding the victim’s head with tape during the underlying sex crime amounted to tying or binding].)
We now turn to the issue of prejudice. Even though appellant was charged with only three counts of forcible sodomy, the prosecution relied on five separate episodes to support those counts. The evidence showed that during those episodes, appellant 1) used a ball gag on J.G., 2) tied her wrists with rope, 3) tied a handkerchief over her eyes, 4) wrapped a bandana around her mouth, and 5) covered her mouth and nose with his hand. Appellant does not dispute that, as to the first four episodes, the jury could reasonably find his conduct amounted to tying or binding of the victim.
Given that there are four separate legally sufficient acts to support three tying and binding allegations, the Attorney General urges us to affirm the jury’s true finding on all three allegations. The problem with this is the jury may have based one of its true findings on the legally insufficient episode. Jurors are presumed to be intelligent people who are capable of understanding and following the trial court’s instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) But “‘[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law.... When, therefore, jurors have been left with the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.’ [Citation.]” (People v. Guiton (1993) 4 Cal.4th 1116, 1125, quoting Griffin v. United States (1991) 502 U.S. 46, 59.)
In this case, the jury’s note about the tying and binding allegations strongly indicates it was focused on the one legally insufficient theory of culpability, i.e., the hand over the nose and mouth theory. And, the court’s response to the note fully enabled the jury to use that theory to support a true finding as to one of the allegations. Under these circumstances, the jury’s true finding as to one of the tying and binding allegations must be reversed.
However, the fact remains the jury could only have used the legally insufficient action to support one of its true findings on the tying and binding allegations. Because there are four other legally sufficient episodes to support the two other true findings, we affirm the jury’s true findings on the remaining two tying and binding allegations. It is simply incontrovertible that two of the jury’s true findings must have been based upon legally sufficient acts. The erroneous instruction could not have affected those allegations.
Since we are reversing the jury’s true finding on one of the tying and binding allegations, appellant’s sentence on one of the forcible sodomy counts must be modified. As to each of those counts, the jury found two allegations to be true, tying and binding and multiple victimization, resulting in a sentence of 25 years to life on each count. (Pen. Code, § 667.61, subds. (a), (e)(4) & (5).) Because one of the tying and binding allegations must be reversed, appellant’s sentence on one of the sodomy counts must be modified to 15 years to life. (Pen. Code, § 667.61, subd. (b), (e)(4).) That will result in a reduction of appellant’s sentence from 107 to 97 years to life in prison.
IV
The remaining issue is undisputed. In rendering its sentencing decision, the court prohibited appellant from having any visitation with the victims or from contacting them directly or indirectly. The Attorney General concedes that while the no-visitation order is proper, the court lacked authority to issue the no-contact order. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383; People v. Stone (2004) 123 Cal.App.4th 153, 159.) Accordingly, the no-contact order must be stricken.
DISPOSITION
The jury’s true finding on one of the tying and binding allegations attendant to the forcible sodomy counts (counts 8-10) must be reversed. While it makes no difference which count that is, we choose count 10. As to that count, appellant’s sentence is modified from 25 to 15 years to life, thereby reducing his overall sentence from 107 to 97 years to life in prison. Appellant’s sentence is also modified to delete the prohibition on his having contact with the victims. The clerk of the superior court is ordered to prepare an amended abstract of judgment reflecting this modification and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.