Opinion
H035143
10-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DEL EDDY COLEGROVE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. F17039)
In 2009, a jury convicted defendant Del Eddy Colegrove of 30 sexual offenses against M., a minor. Defendant was sentenced to 64 years in state prison and timely appeals. On appeal, defendant contends that the trial court committed reversible error by (1) denying his request for a continuance of trial to respond to the prosecution's late discovery of an Evidence Code section 1108 witness; (2) admitting evidence of a prior crime pursuant to Evidence Code section 1108; (3) admitting evidence of adult pornography and sexual aids he used with his wife; and (4) admitting evidence of a hole in a door in the house in which he and the victim lived together. He also argues that some of the jury's verdicts are not supported by substantial evidence, and that the court committed various sentencing errors. Finally, he alleges that the convictions should be reversed for cumulative error. We will affirm.
By separate order, we deny defendant's petition for writ of habeas corpus.
CHARGES, VERDICTS AND SENTENCING
By amended information the Santa Cruz County District Attorney charged defendant with 46 sexual offenses against M. between 1997 and 2008. A jury trial commenced on July 14, 2009. On July 22, the trial court granted the defense motion for acquittal of 14 counts of forcible sexual penetration by a foreign object on August 12, 2008 (counts 19-24) and nonforcible sexual penetration by a foreign object against a person under age 18 between January 1, 1997 and August 12, 2008 (counts 39-46). (Pen. Code, § 289, subds. (a)(1) & (h).)
Unless otherwise indicated, all further statutory citations are to the Penal Code.
The jury acquitted defendant of committing a lewd act upon a child under age 14 between January 1, 1997 and December 31, 1998 (count 1). (§ 288, subd. (a).) The jury was unable to agree on a second lewd act alleged between January 2, 2002 and December 31, 2002, and that count was eventually dismissed (count 2).
Defendant was convicted of 30 counts. For the six-month period between June 1, 2007 and December 31, 2007, the jury convicted defendant of seven counts of forcible oral copulation (counts 3, 13, 14, 15, 16, 17, 18) and three counts of forcible penetration by a foreign object (counts 4, 5, 6). (§§ 288a, subd. (c)(2), 289, subd. (a)(1).)
For the 25-month period between July 1, 2006 and August 25, 2008, the jury convicted defendant of six counts of forcible rape (counts 7, 8, 9, 10, 11, 12) (§ 261, subd. (a)(2)), and eight counts of oral copulation of a person under age 18 (counts 31, 32, 33, 34, 35, 36, 37, 38). Defendant was also convicted of six counts of unlawful sexual intercourse on or about August 12, 2008 with a minor more than three years younger than the defendant (counts 25, 26, 27, 28, 29, 30).
On November 13, 2009, appellant was sentenced to a total term of 64 years: eight years for the forcible foreign object penetration in count 4 (the principal term) and consecutive terms of eight years each for the forcible penetration by a foreign object in count 6 and the six rapes in counts 7 through 12. On the other counts, the court imposed concurrent sentences or stayed sentences. The court ordered appellant to pay a $10,000 restitution fine, suspended a parole revocation fine in the same amount, ordered restitution, and imposed other fines and/or assessments. Defendant received total credits of 188 days.
The six counts of unlawful sexual intercourse charged in counts 25 through 30 appear to have been charged in the alternative to the six counts of rape charged in counts 7 through 12, while the eight counts of nonforcible oral copulation charged in counts 31 through 38 appear to have been charged in the alternative to the seven counts of forcible oral copulation charged in counts 3 and 13 through 18.
EVIDENCE AND PROCEEDINGS AT TRIAL
The crimes for which defendant was convicted occurred in two places on eight occasions: twice in a house in Campbell, and six times in defendant's apartment in Los Gatos. In closing argument, the defense admitted that "there were eight incidents of sexual contact." However, defendant contended that he was guilty only of statutory rape and non-forcible oral copulation and foreign object penetration because M. consented to the sexual acts and was at least 16 years old when they occurred. As defendant testified, "I am responsible for some of the things that I've been accused of but I'm not responsible for all of them."
I. Prosecution's Case
A. M.'s Family Relationship with Defendant
M. was born in 1991. M.'s mother (Mother) married defendant in 1994. Defendant was not M.'s biological father. Mother and defendant separated in 2007. However, they continued to have intimate relations from September 2007 until August 2008 when Mother first learned of M.'s accusations against defendant.
M. turned 16 in 2007. She reported the crimes in August 2008 when she was 17 and beginning her junior year in high school.
M.'s relationship with her mother was "bad," and defendant was aware of that fact. According to M., after Mother and defendant separated, he "controlled all the money." Defendant's financial support helped Mother pay the rent. Mother qualified for welfare by saying that M. lived with her, even though M. stayed with her mother only part-time, depending on how well they were getting along. Sometimes, when they fought, Mother told M. to stay with defendant. In general, M. was allowed to decide where she would stay.
According to M., defendant was a father figure to her; she was never romantically interested in him. Nevertheless, defendant often exploited the tension between M. and her mother by intervening on M.'s behalf when M. got into trouble, and then using his intervention as a way to extract sexual favors from her: "It would be, like, either something would happen [and] he'd help me out with something, he defended me, we'd be really close and really cool. He had me thinking that [i.e., their sexual relationship] was over with and done with. And he could go back to being what he was in my life. And he acted like he really understood me and why I wanted the things I wanted in life. And then after I said, ['O]h, can I go do this?['] He'd [say], like, ['Y]eah, yeah, yeah. You can do that. I'll tell your mom this, and this is how that will be.['] And then later on we'd be at home[,] then he'd want something for it."
B. Defendant's Sexual Acts With M. During Her Early Childhood
M. testified that when she was five or six, defendant would play a game with her that involved him putting his tongue in her mouth. He would put his lips to hers and would blow air into her mouth. She would blow back. Then he would stick his tongue in her mouth. It happened more than once. The air blowing game happened when she was really young; she was not sure how often.
When M. was around six, she complained to her mother that defendant was touching her "weird." M. told Mother that defendant had been waking up at night, coming into the front room where she was sleeping, and touching her.
These acts were charged in counts 1 and 2. The jury acquitted appellant on count 1 and could not reach a verdict on count 2.
When M. was nine or 10, defendant licked M.'s breasts. She was going out to play, and he was in the kitchen. Defendant told M. that she needed to let him lick her "boobs" if she wanted to go outside. She lifted her shirt and let him do it. He touched her left breast with his tongue. She pulled down her shirt and ran outside. M. did not mention this incident to her mother because she didn't want to be a nuisance or get defendant into trouble.
C. M.'s Testimony About Defendant's Sexual Acts During Her Teenage Years
When M. was 13 and in the sixth grade, defendant said something to M. like: "It's going to happen" and "I need to prepare you for what you're going to get into." Scared and mad, M. ran into the bathroom, locked the door, and started crying. She did not tell Mother about the comment.
Defendant first touched M.'s vagina when she was 16. At the time, defendant was living in a house in Campbell, which was owned by one of his friends (Campbell house). Defendant's friend also lived there, with his girlfriend. M. stayed at the Campbell house two to three times a week.
After vacating the Campbell house, defendant moved to a small two-bedroom apartment in Los Gatos, which was owned by the father of L., one of M.'s close girlfriends. M. and defendant lived by themselves in the Los Gatos apartment for about eight months, starting around January 2008. Approximately every two weeks, M. would stay with her mother or a friend, but mostly she stayed at the Los Gatos apartment.
M. testified that defendant put his penis in her vagina more than eight times without her consent. She also testified that he orally copulated her vagina "[a]ll the time"; she mentioned at least eight times. Defendant also penetrated her with his finger "[a]ll of the time."
1. The First Incident at the Campbell House
The first time defendant put his mouth on M.'s vagina occurred at the Campbell house, probably at the beginning of the school year, in September 2007. M. and defendant shared a bed in a bedroom. Defendant started to say M.'s name in his sleep. He said, "I want your pussy." She hit him, woke him up, and told him he was talking in his sleep. He apologized. Then he said he had to have her and couldn't stop thinking about it, and maybe "it" would "go away" if he did "it." He asked her: "Let me go down on you." M. repeatedly said no, and defendant repeatedly begged her to let him. M. started to cry.
Defendant told her she owed it to him because of how much he had done for her mother and her. He said her social life, her relationship with Mother, and their finances would suffer if she didn't do it. She told him "no," swore, and hit him. She told him he was "gross" and insulted him. He said he shouldn't do anything more for her because she couldn't do this for him. He said he wasn't going to be her friend any more. He said he could not continue to help her and would make her life hell. She objected and was repulsed. He asked her if he could get her drunk so that she wouldn't remember the next day and it would be easier for her. She told him it wasn't right. Finally, M. relented and "communicated" her acquiescence. She was crying. He told her not to cry and to take her sweatpants off. She pulled her pants down.
This was the first time alcohol came up in a sexual context. He had previously bought alcohol for her and a friend, in her sophomore year. He had also offered her marijuana at the same age.
He put his mouth on her vagina. His tongue went inside her. He then put his finger inside her, masturbated himself, and ejaculated, but not on her. The sexual acts took two or three minutes. After ejaculating, defendant apologized and said it would never happen again. She went to the bathroom, cried, and washed her vagina. The entire incident lasted for two hours and ended around 4:30 a.m. M. told no one because she was afraid her life would be miserable and defendant would stop supporting her mother financially.
2. The Second Incident at the Campbell House
About two months after the first incident, in 2007 while M. was still 16, defendant found out that M. had smoked marijuana at camp. He threatened to tell Mother, and M. feared that Mother would send her to live with her grandparents in Hayward. Defendant told her he always covered for her and lied to her mother, so M. should let him do "that" again to help him get rid of his stress. She begged him not to do it and reminded him that he had promised that he would not do it again. Defendant got mad, and said he was always doing "this" for her and "[got] nothing." He said this would be the last time, and that it was her fault because she wasn't honest and put stress on him. She tried to get him to realize what he was doing and said, "Why can't you deal with it like every other man?" She then gave up, cried, and said no more. He told her to take her pants off. He went "down on me." His tongue touched her vagina, then his finger touched her afterward. He touched himself and ejaculated. She went to the bathroom, where she cried and washed herself.
D. Six Incidents at the Los Gatos Apartment
According to M., defendant sexually molested her at the Los Gatos apartment on at least six occasions in 2008 during the time she and defendant lived there. All of the incidents occurred in the front room, and included both oral sex and sexual intercourse.
M. testified variously about whether defendant digitally penetrated her at the Los Gatos apartment. At first, she did not remember being digitally penetrated at that location. On redirect, however, she testified that defendant used his fingers "[e]very time" he had intercourse with her, "[b]ecause it was a process of things that he went through every time in the same order." She guessed she was not "loose enough" for him, so he "had to" use his fingers. On recross-examination, she said he used his fingers "most of the time" and "frequently" but she couldn't remember which specific times he used his fingers. On redirect, she said that out of the six episodes of sexual intercourse and oral copulation, defendant used his fingers four or five times.
The longest interval between sexual incidents at the Los Gatos apartment was almost a month, when a friend of defendant stayed with them or when M. left. The first incident occurred after defendant had been living there for a month, but on the first night she stayed there. The second incident occurred at least a month and a half after the first. M. did not recall how long the intervals were between the next four incidents. The interval between the penultimate incident and the last one was two weeks. The last incident occurred in July or August 2008, a couple of weeks before she talked to the police. About four to six months before she talked to the police, M. punched a hole in her bedroom door out of frustration and anger at defendant's refusal to stop raping her despite her protests.
1. The First Incident at the Los Gatos Apartment
Defendant and M. were getting ready to sleep on the futon in the front room. Defendant asked her to "let him do that to me one more time." He said he wanted to make love to her. He swore it would be the last time. She got mad, started to cry, and asked him why. The "same cycle" occurred. He called her a selfish bitch and told her she owed it to him because of all he had done for her and Mother. He said he couldn't believe she could let him suffer. He said everything she had—school, friends, environment, sports—will go away. She called him a manipulative monster. He wore her down with his begging until she gave up. He told her to take her clothes off and got a condom. She "went, oh, no." She took her clothes off. He put his mouth on her vagina and, for the first time, his penis in her vagina. He said something that "grossed [her] out," so she told him to shut up and not talk, just do it. She covered her head with a pillow. She was on her back on the futon, and he was on top of her. After he took his penis out of her, he didn't do anything. She did not remember if he put his finger in her on this occasion. She went into her room and shut the door. He knocked on the door and said he was sorry. She told him to go away.
2. The Second Incident at the Los Gatos Apartment
Defendant had "started giving signs" of sexual interest in M. before the second incident in the Los Gatos apartment. "His hugs were like extra." He asked her to have sex with him. She said "no." He asked if she wanted him to be her boyfriend: he said he wanted to be a couple, in a relationship with her. She said "no." She was mad, and he got insulted. He complained about all the things he did for her and said she was ungrateful. The conversation continued for about an hour. She was trying to talk him out of it. She yelled and cried. Eventually, she took off her clothes because he demanded it. He told her to lie down and she did. He touched her with his mouth and penetrated her with his penis. She did not remember if he touched her digitally.
3. The Third Incident at the Los Gatos Apartment: The Bra
On one occasion, appellant asked M. to wear a black wire bra with both cups cut out. He handed the bra to her and told her to put it on. She looked at it, said "no," and kept hitting him with it. She began to cry. She told him to get it over with. He said he couldn't if she was crying, so she covered her head with a pillow.
4. The Fourth Incident at the Los Gatos Apartment: Hands and Knees
On another occasion, defendant "went through the whole thing again" and asked her to "flip over." She refused. He grabbed her, flipped her over, and positioned her on the floor on her hands and knees. Then he penetrated her with his penis. He demanded it over and over; she said "no." She was in shock. The incident made her feel like a rape victim and a slave.
5. The Fifth and Sixth Incidents at the Los Gatos Apartment
On one occasion, M. felt so powerless that she started screaming and hitting herself in the head and against a wall. Defendant restrained her, got her down to the floor, and told her to stop; he told her she was acting like her mother. Afterwards, he put his penis inside her and his mouth on her vagina, as he had done the other times. This was not the last time: "It happened more after that."
6. Defendant's Written Promise to Stop
At one point during their sexual relationship, M. told defendant she couldn't live with him at the Los Gatos apartment if he was going to have sex with her all the time. He apologized and said he liked having her live with him because she was one of his closest friends, and he didn't want her to leave. She said he was going to lose her forever if it kept going on. It was his idea to have her write a statement that he would sign, saying that he would not touch her again. She wrote: "I, Del Colegrove, will not touch [M.] ever again" and he signed the statement. He then put it in a vacuum bag in her closet. That was the last she saw it.
E. Defendant's Sexual Acts Involving M.'s Friends
1. The Incident with R.
M.'s female friend R., born in August of 1992, testified that she met M. through L. R. also knew Mother and defendant. In late June 2008, when R. was 15, going on 16, defendant touched her in a sexual way. The incident occurred in the Los Gatos apartment.
On that day, R. and L. drank vodka at L.'s house. The girls went to the apartment looking for M. Defendant was there. The girls went inside to wait for M. to come home. R. was "buzzed" but not drunk. R. brought the vodka into the apartment with her. Defendant gave R. marijuana and a beer, which she smoked and drank, along with more vodka. It was not her first time drinking beer or vodka or smoking marijuana. On a previous occasion, defendant had offered her marijuana, but she had declined because she was scared that her father would find out.
Defendant sat between R. and L. on the living room couch in the apartment watching television. According to R., when L. left the room to talk on a cell phone in the bathroom, defendant tried "to get on top of [her] and kiss [her]." He kissed her on the neck, cheek, and lips. He did not climb into her lap; he just turned to his right. L. ran in, "freaked out," and pulled R. "out from under" defendant. The touching did not last long. R. was shocked and surprised. She froze up, not knowing what to do. The girls had been in the apartment for a little over an hour. Defendant apologized and begged the girls not to tell anyone. The girls went downstairs to L.'s room, where they talked about what had happened. R. was upset and really drunk.
Later, R. told another friend about what defendant had done, but R. never told M. She did not tell anyone else what had happened until she told the prosecutor and his investigator on June 30, 2009. She "[w]anted to forget about it."
In April 2009 R. and L. stole clothes from Macy's. They went to the store with the intent to steal clothes, and selected particular items worth $375, which they took to a dressing room and put in a bag after tearing up the price tags. They were caught walking out of the store with the bag of clothes.
R. also admitted that she had a "MySpace" page on which she wrote: "I'm a firm believer that sometimes it's right to do the wrong thing." She also had a picture of herself and L. on her My Space page along with a statement that L. was her best friend and she will "do anything for her." On two different My Space pages that she created, she inaccurately gave her age as 18 and 19, respectively. She also admitted that she was supportive of M.; that she wanted to help get defendant convicted; and that she would do anything to help M.
2. M. Confronts Defendant About the Incident with R.
L. called M. and told her about an incident involving defendant and R. M. asked defendant if he wanted to tell her what happened with R. and L. He said, "What?" She told him not to play dumb and to tell her what happened. He said, "[H]old on. Let me tell you what really happened." Defendant told M. that R. and L. drank and smoked with him, and started kissing and touching each other in front of him. He said he couldn't help himself and they were making it so hard. R. and L. "came on" to him, and R. started kissing him. L. got "freaked out" and went to the bathroom; R. remained with him and "came on" to him.
F. M.'s Disclosure of Defendant's Sexual Abuse
1. M's Disclosure to Her Mother and Aunt
Mother and defendant "got into a real big fight" at his place on August 1, 2008. After that fight, M. went to stay at her aunt's (Aunt) home because she wasn't ready to go back to the house with defendant. A week later, while at Aunt's house, M. told Aunt that defendant had been sexually abusing her.
Defendant had been badgering M. with text messages about when she was going to come back to his place. Aunt and Mother asked M. why she didn't want to return defendant's home. When Mother excused herself and went to the back of the house, Aunt asked M. what was going on. M. told her that defendant had been touching, hurting, molesting, and raping her. She gave Aunt the information in "trickles" because she had difficulty telling her. It was easier for M. to tell Aunt than to tell her mother because M. had so much anger towards her mother. Aunt told M. she had to tell Mother. When Mother returned to the room, Aunt repeated that M. had to tell her mother. When M. said she couldn't, Aunt said she would, and the two adult women went into a back room. A minute later, M. heard Mother scream. M. went to the room where her mother and aunt were and told her mother that defendant had molested her, but did not go into specifics.
The next day, Mother went by herself to a women's shelter in Santa Cruz, but it was closed. Mother talked to a person on the help line. Mother returned to the shelter with M. on Monday. The people at the shelter advised Mother to call Child Protective Services (CPS) and she did. After Mother and M. went home, defendant came to the house. Mother told him to leave and then she called the police. Two officers came to the house that day, and separately interviewed Mother and M. When the officers came, defendant ran away.
2. The Pretext Call
On August 12, 2008, Mother and M. were transported to the sheriff's office by two deputies to be interviewed further. Detective Krissi Durant interviewed M., while Sergeant Mitchell watched the interview on a television monitor in her office. Mitchell later interviewed Mother. The officers arranged for M. to make a pretext call to defendant on August 14, 2008. A recording of the call was played for the jury.
In the telephone call, defendant apologized for the fight he had with Mother. He said he was going to anger management classes and was seeing a therapist. M. said everyone around her was asking her why she didn't want to go back to living with him. Defendant asked her, "Well, why don't you want to come back?" M. responded: "Well, dad, why do you think?" Defendant said, "Honey, there's nothing like that's ever gonna happen again." M. said "the sex . . . has to stop seriously." Defendant agreed. He said, "[T]he thing between me and you, that's done and gone." She said, "Yeah, that's what you said all those other times." He told her to "take this to heart." She said, "Take it to heart. Just like the last time?" He said, "Okay, you have reason to say that." She said, "Yes I do." He said, "Absolutely. So I'm not even going to argue that point."
Defendant advised M.: "This cannot be discussed with anyone or I'll go to jail." He said his therapist told him that she "cannot advise [him] to tell [her] anymore" because the law required her "to turn this in." He said he was talking to the therapist by "using . . . [the phrase] 'my friend.' "
M. asked him how he expected her to "believe all this is gonna happen" when he had "even signed a piece of paper saying you wouldn't ever . . . have sex with me again." She said, "And . . . you did it. You kept doing it." Defendant said, "I know." M. said, "What am I suppose to think?" Defendant said, "I don't know." She asked whether she should talk to a therapist "about this sex thing[.]" He said, "No, because I'll go to jail." He said his therapist had told him so.
3. M's Disclosure of the Incident with R.
M. had promised L. that she would not tell anyone about the incident with defendant and R. That was why, when the police asked M. if she had heard about similar incidents, she said "no." This was a lie. Later, M. decided to tell the whole truth instead of just part of it because she wasn't the only one who was hurt and the other people needed to be recognized.
District Attorney Inspector Aaron Morse interviewed M. at her home in Hayward on May 28, 2009, after M. had contacted the district attorney's office. M. said that she originally felt her friends didn't want her to talk about "this stuff." Later she decided it was something she should tell the police. She said she became angry when she heard all the things defendant was denying and said, "What else can I bring to this that's just going to make his life hell?"
G. Mother's Testimony about Lingerie and Pornography Evidence
Mother testified that People's Exhibits 5, 6, and 7 were erotic story collections that she and defendant used when they had sex. Mother kept them in a bag, which she gave to the police. Defendant's favorite story was People's Exhibit 6, "[f]amily letters" with the theme of incest. Defendant was obsessed with the pornography. Incest was not his only interest. Mother denied ever buying pornography. People's Exhibits 8A through D were items of lingerie. Mother kept them in a drawer in her apartment. People's Exhibits 8A through C were bras with the cups cut out. People's Exhibit 8D was a corset with the cups cut out. Defendant asked Mother to wear the items when they had sex. Mother brought everything she had to the police.
II. Defendant's Case
Defendant denied any sexually inappropriate behavior with M. when she was under the age of 14, and denied ever playing a kissing game with either of his daughters. He did admit blowing air into M.'s cheeks but did so without kissing her. He did not use his tongue.
Defendant testified that he was not sexually interested in M. before she was 16. He became sexually interested in M. in the fall of 2007 when he found on M.'s computer provocative photos of M. "with other women" in which she was "posing lingerie and stuff". The pictures made him realize to his horror that she had grown up "[q]uicker than [he] thought." He told her she had to stop posing. M. was scared about what defendant was going to do with the information, but he did not threaten to disclose the information. He was worried by the pictures and at the same time "found attraction." The day he found the photos he told her to sleep on the couch. She got into bed with him anyway and they talked. She said she didn't want him to tell her mom what he found. He agreed not to tell. He did not threaten or coerce her. They "fooled around and pressed each other." He "went down on her." There was no screaming or crying. He didn't tell her to orally copulate him. He didn't plead with her. There were no raised voices. He felt horrible because he realized a line had been crossed. He apologized. She apologized for "forcibly pressing . . . ." He had failed to say "no" because he had been aroused and "it was very tempting . . . ." He apologized because he was the adult and was responsible for what happened.
Detective Krissi Durant found three recordings lasting a total of 45 seconds of M. in lingerie. No one else appeared in any of the recordings.
The second incident happened after she "wanted to do certain things" and "[he] reluctantly said "no." That evening they went to bed and "they both went there." Afterward, he felt bad.
M. moved into the Los Gatos apartment with him toward the end of January. About a week after she moved in, defendant mentioned that he "wanted to take it to the next level." The feeling was mutual, and they had sexual intercourse. He did not threaten to take away her freedom or privileges if she refused, or force her. Each of them undressed. She did not scream or cry. She did not go to her room. They slept on a futon. Afterward, he felt bad and apologized to M. "because it just wasn't right." However, M. was not upset with him.
From January to August 2008, he engaged in "some kind of sexual activity" with M. six times. He never forcibly put her on her hands and knees. He never put her in any other position, but she was not always on her back. She never put a pillow over her head. She cried twice. On the first occasion that she cried, he stopped. She had a boyfriend, and the situation "was getting very confusing." She said she wanted to spend time with her boyfriend.
They both agreed it had to stop. They both wrote a document, and signed it. They had no sex after that. It was May or June. He admitted that he masturbated after the early incidents in which he orally copulated M. He admitted orally copulating M., digitally penetrating her, and putting his penis in her vagina. He did all those things more than once. He did them after promising he would not do it again. They made promises on a couple of occasions. He denied ever physically restraining M. or seeing her bang her head against the wall. He said it was he, not she, who punched a hole in her door and that he did it accidentally. His friend Ron Statin witnessed it.
He was never alone at home with R. The incident with R. and L. never happened. He never had a conversation with M. about R.; M. did not confront him. He did allow M. to drink alcohol at home with her friends, but he never got M. drugged or drunk to engage in sexual activity. He did not provide marijuana or beer to her friends. He did provide marijuana to M. and smoked it with her.
Defendant admitted he bought the lingerie for Mother and cut the cups out of the bras. Mother wore the items. He hid them from M. and never asked her to wear an item like that. He denied purchasing the pornography but admitted looking at it and having an interest in it. He denied showing it to M. The pornography was not his; it belonged to Mother. He agreed that what he did with M. could be described as incest. One of the items (People's Exhibit 5) said "[d]addy's little girl" and "[y]oung and tight."
Defendant told the police he did "whatever [M.] said" he did. He said that because he didn't think she would say the things she did.
III. Defendant's Requests to Continue the Trial
Although at first M. failed to advise the police that there had been any sexually inappropriate conduct on defendant's part with her friends, the CPS narrative disclosed that according to Mother, defendant had solicited M.'s friends. The defense received that narrative as part of the initial discovery, along with a hundred contacts from M.'s cell phone including the cell phone numbers for R. and L. In any event, neither the prosecution nor the defense did anything with the information.
In early April 2009 the trial court set a trial date of July 13, 2009. In late May 2009, M. had a change of heart and contacted the prosecution about the incident with R. On May 28, 2009, M. made a recorded statement to the prosecution about the incident. According to the prosecutor, he sent the defense "the report detailing what [M.] had said" "more than 30 days before trial." According to defense counsel, the prosecutor notified her by e-mail on June 11 that a supplemental interview with M. was coming, but the e-mail did not include the content of the interview. Defense counsel received the report of the interview on June 15, 2009.
On Tuesday, June 30, 2009, the prosecutor and his investigator separately interviewed R. and L. Each interview lasted less than half an hour. Two days later, in a conference call with the judge, the prosecutor told defense counsel about the substance of the interviews. Between July 2 and July 6, the prosecutor authorized overtime so that his investigator could write up a report and reduce his tapes to discoverable form. On July 6, the prosecutor e-mailed the investigator's interview summaries to defense counsel. He also directed that the tape of the interview with R. be sent to defense counsel by Federal Express, but the tape was sent by regular mail.
On July 7, 2009, defense counsel filed a motion for a continuance of trial, citing incomplete discovery. At the hearing on Thursday, July 9, 2009, defense counsel received an audio cassette of R.'s interview. In addition, the prosecutor had given defense counsel his master copies of the R. interview and the most recent M. interview. The trial court denied the motion to continue the trial, based on the fact that the tape of R.'s interview was less than half an hour long, there was no tape of L.'s interview, and it was "solely up to the trial judge to determine whether or not the [Evidence Code section] 1108 [testimony] will even come in."
On Monday, July 13, defense counsel submitted a renewed motion for continuance supported by her "ex parte declaration under seal." According to the declaration: (1) since July 9, counsel had directed a licensed investigator to attempt to contact R. and L. and to conduct some background investigation of them, including their connection to M.; (2) L.'s mother refused to let the investigator speak with L.; (3) both R. and L. had My Space pages, and on two such pages R. was listed as older than her actual age; (4) R. had posted many pictures of herself with L. and one picture counsel believed was taken with M.; (5) R. had posted a statement saying that "sometimes it's right to do the wrong thing;" and that L. was her best friend and she loved L. more than anything. Counsel also stated that communications between R. and L. on MySpace and Facebook were accessible via subpoena, but her investigator's previous experience subpoenaing records and electronic data from both companies led him to believe that it would take two to three weeks to comply with subpoenas of this sort. Based on these public postings, counsel believed that "there may be evidence relevant to the witnesses' credibility" in the "private" communications between R. and L. accessible only by subpoena, and that "[w]ithout adequate time to seek MySpace and Facebook material, defense counsel will not have provided effective assistance of counsel to the defendant in terms of independent investigation." After considering the declaration, the trial judge denied the second continuance motion for lack of good cause.
On July 14, the court heard in limine motions, including defense counsel's motion to exclude R.'s testimony as a sanction for a discovery violation under section 1054.7. The court ruled that the prosecution had met the conditions for excusing late discovery. It also found the evidence "far more probative than prejudicial under Evidence Code section 352" and admitted the evidence under Evidence Code section 1108.
The court stated that it was revising its time estimate for trial to give "us a little bit more time to be able to do this . . . in the right way at a good pace where everybody's not feeling like they're under time constraints." The jury was sworn on Wednesday, July 15. The prosecution presented one witness on Thursday, July 16. Trial was not in session on Friday or Monday. M. and R. testified when trial resumed on Tuesday, July 21. L. did not testify.
DISCUSSION
I. The Trial Court Did Not Commit Evidentiary or Procedural Error
A. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence Of the Sexual Assault on R.
Citing Evidence Code sections 352 and 1108, the trial court admitted the evidence that M.'s friend, R., was sexually assaulted by defendant.
1. R. Qualified as an Evidence Code section 1108 Witness
Defendant argues that R. did not qualify as an Evidence Code section 1108 witness because her testimony did not demonstrate that defendant committed any of the crimes listed in that section. Specifically, he argues that his conduct did not violate sections 647.6 (annoying or molesting a child under 18) or 243.4 (sexual battery), and that her testimony was therefore inadmissible. The Attorney General does not argue that defendant's conduct constituted a sexual battery, but does argue that his conduct violated section 647.6. We agree.
Evidence Code section 1108 provides in relevant part: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. [¶] . . . [¶] (d) As used in this section, the following definitions shall apply: [¶] (1) 'Sexual offense' means a crime under the law of a state or of the United States that involved any of the following:
(A) Any conduct proscribed by Section . . . 647.6, of the Penal Code." "The trial court has the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact. (People v. Lucas (1995) 12 Cal.4th 415, 466.) To determine admissibility, the trial court makes a preliminary determination of whether the proffered evidence is sufficient for the jury to find the uncharged offense true by a preponderance of the evidence. (Evid. Code, § 403; People v. Simon (1986) 184 Cal.App.3d 125, 132-134; People v. Carpenter (1997) 15 Cal.4th 312, 382.) We review the trial court's determination of this preliminary fact under the abuse of discretion standard. (People v. Lucas, supra, 12 Cal.4th at p. 466.)
To be guilty of a violation of section 647.6, the prosecution must prove that the defendant: (1) engaged in conduct directed at a child; (2) a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant's conduct; (3) the defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under the age of 18 years at the time of the conduct. (CALCRIM No. 1122.) It is not necessary that the child be actually touched or annoyed. The test is an objective one. (People v. Lopez (1998) 19 Cal.4th 282, 289-290.)
Defendant contends that his interest in R. was not abnormal or unnatural, and that a normal person would not have been "unhesitatingly irritated" by his conduct. Neither argument is convincing. The trial court reasonably concluded that a jury could find by a preponderance of the evidence that taking advantage of a friend's temporary absence to commence kissing the neck, face and lips of an inebriated girl is indicative of an abnormal sexual interest in that girl. In June 2008, when defendant kissed R. under these circumstances, she was 15 years old and defendant was 40 years old. The jury could reasonably posit that middle-aged men do not typically kiss adolescent girls on the face, neck and lips, that such conduct has a sexual connotation, and that the average 15-year old girl would be unhesitatingly irritated by a middle-age man's sexual advances. The court did not err in permitting the jury to determine whether defendant's conduct with R. amounted to a violation of section 647.6. Furthermore, substantial evidence supports the jury's implicit finding that R.'s testimony established a violation of section 647.6 by a preponderance of the evidence. R. testified that she was shocked and surprised by defendant's advances, and that they caused her to freeze up and not know what to do. These unpleasant feelings are equivalent to unhesitating irritation. No error appears.
2. There Was No Discovery Violation
The trial court allowed the prosecution to call R. as a witness on the grounds that it did not find an untimely disclosure. On appeal, defendant maintains that the prosecutor's disclosure of R.'s testimony was untimely under Evidence Code section 1108 and section 1054.7. At a minimum, he argues, the trial court should have granted his request for a sanction such as instructing the jury with CALCRIM No. 306.
CALCRIM No. 306 provides in relevant part: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: _____ [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
a. The Trial Court Did Not Abuse Its Discretion in Finding Timely Discovery Compliance Under Section 1054.7
Section 1054.7 provides in relevant part: "The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. 'Good cause' is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (Emphasis added.) We review the trial court's ruling on discovery for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 458 (Panah).)
The trial court implicitly found, and the record discloses, that full discovery concerning R.'s proposed testimony was not made until July 2, 2009: "within 30 days" of trial, that is, less than 30 days before trial. The trial court also found that the prosecution did not unreasonably delay in notifying the defense about R., and substantial evidence supports that finding as well. As the trial court observed, "[t]hey couldn't force [M.], put her under a hot lamp and say tell us everything you know." M. did not disclose what she had heard from L. about the incident involving R. until May 28, 2009.
Defense counsel did not argue that the prosecutor unduly delayed in interviewing R. and L. after M.'s disclosure. Instead, she argued that, notwithstanding M.'s denial of knowledge, the prosecutor should have put two and two together in August 2008, based on the information in the CPS and police reports. However, "the prosecution 'has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense.' [Citation.] . . . [¶] Moreover, there was apparently no information in the report to which defendant did not already have access. . . . [D]efendant's failure to adequately prepare for cross-examination cannot be attributed to the belated production of a report containing information already in his possession." (Panah, supra, 35 Cal.4th at p. 460; see also People v. Rutter (2006) 143 Cal.App.4th 1349, 1353-1354.) The prosecution acted with reasonable alacrity in providing to defendant the details of R.'s accusation by the July 2 conference call, and full discovery by the July 9 hearing. The trial court did not err in concluding that the prosecutor complied with its discovery obligation "immediately" within the meaning of the statute as interpreted in Panah. Furthermore, even assuming error in the delay between July 2 and July 9, the record does not disclose that defendant was prejudiced by that delay. (People v. Verdugo (2010) 50 Cal.4th 263, 280-281.) Since discovery was timely, there was also no error in the trial court's refusal to instruct the jury with CALCRIM No. 306.
b. The Trial Court Did Not Abuse Its Discretion in Denying Defense Counsel's Requests for a Continuance
A continuance may not be granted in a criminal case absent a showing of good cause. (§ 1050, subd. (e).) "Motions to continue the trial of a criminal case are disfavored and shall be denied unless the moving party, pursuant to Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance." (Cal. Rules of Court, rule 4.113.) " 'Whether a defendant has affirmatively demonstrated that justice requires a continuance is a factual matter' " (People v. Rhodes (1989) 212 Cal.App.3d 541, 555), and we review the denial of a continuance for abuse of discretion. (People v. D'Arcy (2010) 48 Cal.4th 257, 287.)
Defense counsel's first motion, filed July 7, 2009, was based on incomplete discovery. However, by the end of the hearing on July 9, defense counsel had been provided all the outstanding discovery regarding R. Based on the brevity of R.'s recorded statement and the uncertainty about whether she would even be permitted to testify, the trial court reasoned that a continuance was not warranted at that time. Counsel presented no basis to refute the trial court's reasoning.
The record supports the trial court's implied finding that the ends of justice would not be frustrated by the denial of a further continuance. First, defense counsel's declaration in support of her second motion to continue demonstrated that in the time allowed she had uncovered significant impeaching information, suggesting that she had adequate time to prepare for trial. The declaration also revealed that certain other avenues of investigation were foreclosed by L.'s mother's refusal to let L. be interviewed by the defense: a limitation that would not have been alleviated by a further continuance. (Panah, supra, 35 Cal.4th at p. 458.) Finally, counsel's assertion that something more might be mined from private MySpace or Facebook communications between R. and L., and that it would take those companies weeks to respond to a subpoena, was speculative. Nothing in the declaration suggests that the girls even had Facebook accounts. It was not unreasonable to conclude that, at best, any additional information from private MySpace conversations would be cumulative to the information counsel had already developed from the girls' public comments. Moreover, as noted above, on the day after denying the second motion, the trial court delayed trial until the following Tuesday, giving the parties two extra court days (a four-day hiatus) to prepare further for trial. At this juncture, defense counsel did not indicate she needed even more time to prepare or to do more investigation. In fact, the impeachment evidence against R. included not only her public MySpace comments but also the prior theft that she and L. had committed together. We find no abuse of discretion in either of these rulings denying a continuance; if the court erred, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
This court granted defendant's motion to augment the record with counsel's declaration which had been filed under seal.
3. The Trial Court Did Not Abuse Its Discretion in Admitting R.'s Testimony Under Evidence Code Section 352.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review the trial court's ruling for abuse of discretion. (People v. Huy Ngoc Nguyen (2010) 184 Cal.App.4th 1096, 1116 (Nguyen).) "The factors to be considered by a trial court in conducting the Evidence Code section 352 weighing process depend upon 'the unique facts and issues of each case . . . .' [Citation.] 'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' [Citation.] [¶] Condensing this list, five factors stand out as particularly significant in an Evidence Code section 1108 case. These factors are: (1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time. [Citation.] A trial court balances this first factor, i.e., the propensity evidence's probative value, against the evidence's prejudicial and time-consuming effects, as measured by the second through fifth factors. [Citation.]" (Id, at pp. 1116-1117.)
Defendant's argument that R.'s testimony "ha[d] virtually no probative value" is unpersuasive. Under Evidence Code sections 352 and 1108, R.'s testimony was relevant because it tended to prove that defendant had a sexual attraction to teenage girls and a propensity to sexually assault them. Moreover, given defendant's argument that M. consented to defendant's sexual advances, R.'s testimony tended to show that defendant had a propensity to foist himself upon non-consenting teenage girls, and to rebut the implication that defendant harbored no criminal intent when he made sexual advances to teenage girls.
Here, the Nguyen factors bearing on potential prejudicial effect all favor admission of this evidence. The conduct was similar enough to the charged behavior for purposes of showing criminal intent and negating a defense of mistake; R.'s testimony was far less inflammatory than the evidence of the defendant's charged acts; the uncharged conduct was recent, not remote or stale; it was unlikely to confuse or distract the jurors from their main inquiry by tempting the jury to punish the defendant for his uncharged, unpunished conduct or consuming an undue amount of time. In short, we perceive no abuse of discretion in the trial court's balancing of probative value and potential prejudice under section 352.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Sexual Aids Defendant Used With His Wife
Defendant argues that the trial court abused its discretion in admitting evidence of erotic magazines, erotic stories involving incest, and brassieres with the cups removed that defendant and Mother used during sex. He claims they lacked a proper foundation or relevance. We disagree. Mother testified that defendant bought these materials and used them during sex with her. She kept them and turned them over to law enforcement. M. testified that one time defendant asked her to wear a brassiere without cups when they engaged in sexual acts but she refused. In our view, Mother's and M.'s testimony provided an adequate foundation for their admission. Furthermore, the incest items were highly relevant to show the depth of defendant's sexual interest in M., and M.'s refusal to wear the modified brassieres also tended to rebut defendant's claim that M. was sexually interested in him and consented to have sex with him.
Defendant also challenges the trial court's admission of photos of M. posing in lingerie that were found in the Los Gatos apartment. These photos underscored Mother's and M.'s testimony that defendant was sexually motivated by the females wearing revealing lingerie. In our view, this evidence was far less inflammatory than the charged acts, consumed little trial time to present, and was far more probative than prejudicial. No error appears.
C. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of A Hole in a Door
Defendant argues that the trial court erred in admitting photographs of a hole in a door in the Los Gatos apartment because it was late discovery and because it was an abuse of discretion under Evidence Code section 352. He argues that the discovery violation should have ended the matter but, in any event, the photographs "had no probative value at all," because "[t]hey merely showed that there was a hole in the door located in the interior of" the Los Gatos apartment. He also argues that the photographs distracted the jury from the major issues in the case, and "allowed the jury to view additional tangible material which, like the Evidence Code section 1101 adult material and altered lingerie, were presented to establish [defendant's] guilt of the charged offenses." We disagree with defendant's assessment of the photographs.
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In this case, the photographs were admitted to illustrate and corroborate M.'s testimony that, about four to six months before she talked to the police, she punched a hole in her bedroom door out of frustration and anger at defendant's refusal to stop raping her despite her protests. Evidence that M. was distraught about her sexual relationship with defendant, in turn, tended to disprove that the sexual relationship between M. and her stepfather was consensual. Consent was a major issue at trial.
It is true, as defendant asserts, that the photos did not prove M. punched the door, and defendant provided the alternative explanation that he accidentally put the hole in the door. These assertions did not divest the photos of probative value; they merely created a factual dispute for the jury to resolve. The photographic evidence was not inflammatory, time-consuming to present, or confusing to understand. The trial court did not abuse its discretion in admitting them.
Even if it was error to admit the photographs over a late discovery objection, any error was manifestly harmless. There is no reasonable probability whatsoever that exclusion of the photographs of a hole in a door would have resulted in a different outcome. (People v. Watson, supra, 46 Cal.2d at p. 836.)
II. The Jury's Verdict Is Supported by Substantial Evidence
Defendant argues that the evidence only supports jury findings on three counts of oral copulation rather than eight and three counts of rape rather than six, because she only described in detail three acts of each. He admits that M's general testimony supports all of the charges. We also note that defendant also testified that there were six sexual encounters at the Los Gatos apartment.
In his opening brief, defendant failed to cite People v. Jones (1990) 51 Cal.3d 294 (Jones), in which our Supreme Court held that the particular details of a charge of child molestation are not elements of the offense and are not necessary to sustain a conviction. Rather, "[t]he victim . . . must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id., at p. 316)
M.'s testimony meets the Jones test. In his reply brief, defendant argues that Jones is factually distinguishable because the case involved "a victim significantly younger and less mature than . . . [M.]" However, Jones did not limit its holding to victims under a certain age. Defendant also argues that M.'s testimony about specific acts suggests that the three "insertions" challenged by him "might have occurred during the same encounter or even during the three encounters for which she did provide details." This argument fails to demonstrate a lack of substantial evidence to support the charges. Finally, citing Justice Mosk's dissent in Jones and a 1977 federal appellate court decision, defendant appears to argue for the first time that the holding in Jones undermines the rule requiring juror unanimity. The present case is governed by Jones, which is binding upon us as an intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450.) In light of Jones, substantial evidence supports all of the jury's verdicts.
III. The Trial Court Did Not Commit Sentencing Error
Defendant argues that the trial court committed several errors in sentencing defendant to 64 years in prison. First, he argues, the court committed Cunningham error. (Cunningham v. California (2007) 549 U.S. 270 (Cunningham).) Next, defendant argues that he was deprived of due process of law and a fair trial because the information did not allege that separate and consecutive sentences were being sought under section 667.6. Third, defendant argues that counts 4, 6, 13, 14, 15, 16, 17, and 18 were not "separate occasions" distinct from counts 3, 5, 7, 8, 9, 10, 11, and 12; therefore, at least eight of the counts were not subject to mandatory, full and consecutive sentencing under section 667.6, subd. (d). Fourth, defendant argues that counts 3 and 5 are not subject to full, separate and consecutive sentencing under section 667.6, because violation of section 288a, subdivision (c) [forcible oral copulation] is not one of the specified offenses listed in section 667.6, subdivision (e). Fifth, defendant contends that the trial court failed to consider, on the record, "mitigating aspects of [his] character before pronouncing sentence." Finally, defendant argues that three of the four aggravating factors on which the trial court relied are not supported by substantial evidence. We reject all of these contentions.
A. No Cunningham Error Occurred
Defendant contends that the imposition of full, consecutive, aggravated terms pursuant to section 667.6, subdivisions (d) and (e) violates his Sixth Amendment right to a jury trial because it is based on a fact—that the crimes were committed against a single victim on separate occasions—which was not found by a jury beyond a reasonable doubt.
Defendant's argument is based upon Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham, supra, 549 U.S. 270 (Cunningham). In Apprendi, the United States Supreme Court held that "[o]ther than . . . a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) In Blakely, the Court explained that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.'" (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, the Court applied the reasoning of Apprendi and Blakely to California's determinate sentencing law and determined that the middle term—not the upper term—is the "statutory maximum" for Apprendi purposes. (Cunningham, supra, 549 U.S. at 289.) The Court held that, by allowing imposition of an upper-term sentence based on aggravating circumstances found solely by the judge, California's determinate sentencing law "violates Apprendi's bright-line rule" (id. at p. 288), and that the upper term may be imposed only if the factors relied upon comport with the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. 293; former § 1170, subd. (b), Stats.2004, ch. 747, § 1; see also People v. Sandoval (2007) 41 Cal.4th 825, 852-853.)
However, defendant was sentenced on November 13, 2009. Section 1170, subdivision (b), was amended effective January 1, 2008. (Stats.2007, ch. 740, § 1.) Thus, at the time defendant was sentenced, that statute provided, as it does to this day, that "the choice of the appropriate term shall rest within the sound discretion of the court." This amendment "cure[d] the constitutional defect in the statute" and permitted the trial court to impose an upper-term sentence based on facts not found by a jury beyond a reasonable doubt. (People v. Sandoval, supra, 41 Cal.4th at p. 844.) Application of the amendment to crimes committed before its effective date does not violate ex post facto or due process principles. (Id. at pp. 853-857.)
Defendant also argues that section 667.6 is an enhancement statute, and that full, separate and consecutive terms may not be imposed unless a jury makes the factual findings upon which the application of section 667.6 is premised. However, by its own terms and under well-established California precedent, section 667.6 is not an enhancement statute; it is, instead, an alternative sentencing scheme that comes into play "[i]n lieu of the term provided in Section 1170.1, . . . for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." (§ 667.6, subd. (c); People v. Stought (1981) 115 Cal.App.3d 740, 742; People v. Reynolds (1984) 154 Cal.App.3d 796, 810-811.)
"The Legislature enacted section 667.6 in 1979 to provide longer prison terms for certain sex offenders. (Stats.1979, ch. 944, § 10, p. 3258.) Before then, the principal provisions governing the sentencing of persons convicted of multiple felonies were sections 669 and 1170.1. Section 669 authorizes the court to decide whether sentences should run concurrently or consecutively. Subdivision (a) of section 1170.1 establishes a formula for computing the length of the aggregate term should the court impose consecutive sentences. Under that formula, the longest term for one offense, including enhancements, becomes the 'principal term,' and to it are added any 'subordinate terms' for the other offenses, limited to one-third of the middle term for each such offense. (§ 1170.1, subd. (a).) [¶] As a more severe consecutive sentencing alternative to the section 1170.1 formula, section 667.6, subdivision (c), permits the imposition of a full, separate, and consecutive term 'for each violation of' the enumerated sex offenses." (People v. Jones (1988) 46 Cal.3d 585, 592.) Since section 667.6 is not an "enhancement" added to a normal section 1170.1 sentence, but rather a separate sentencing scheme for certain offenses, the reasoning of Apprendi and it progeny does not require that section 667.6 be pleaded and proved to a jury or admitted by the defendant before it can apply.
Moreover, imposition of consecutive sentences on the basis of judicial rather than jury findings does not violate a defendant's Sixth Amendment right to jury trial. In Oregon v. Ice (2009) 555 U.S. 160, the United States Supreme Court rejected the contention that Apprendi, supra, 530 U.S. 466 and its progeny apply to the sentencing court's decision to impose consecutive sentences. (See also People v. Cardona (2009) 177 Cal.App.4th 516, 530; People v. Quintanilla (2009) 170 Cal.App.4th 406, 414; People v. King (2010) 183 Cal.App.4th 1281, 1324.) Based on these authorities, we conclude the sentencing judge did not violate defendant's Sixth Amendment right to a jury trial by imposing full, consecutive, aggravated sentences under section 667.6.
B. Defendant Has Not Demonstrated that Due Process Requires the Information to Plead section 667.6, subdivisions (c), (d) and (e)
Defendant also argues that "[u]nder the Fifth, Sixth and Fourteenth Amendment to the United States Constitution, a defendant has a right to due process of law and the right to a fair trial," and that "[d]ue process of law includes the right to be notified of the charges and the punishment sought." He asserts that this right was violated because he "was not given formal or informal notice that full, separate and consecutive sentences were being sought in this case." Defendant cites no authority for the proposition that failure to allege section 667.6 in the information violates due process.
In addition, we reject the assumption on which defendant's argument is predicated. First, and as discussed above, section 667.6 is not an enhancement. Second, the charges themselves put defendant on notice that if he were to be convicted of them he could be punished under section 667.6's alternative sentencing scheme for such offenses. As the court of appeal explained in People v. Strought, supra, 115 Cal.App.3d 740, "Penal Code section 1170.1, subdivision (e), states in pertinent part: 'The enhancements provided in Sections . . . 667.6 . . . shall be pleaded and proven as provided by law.' (Italics added.) Penal Code sections 667.6, subdivision (a) and 667.6, subdivision (b), provide respectively for five- and ten-year 'enhancements' for prior sex offenses. There is thus no question that these are subject generally to the pleading-proof requirement of section 1170.1, subdivision (e). [¶] But Penal Code section 667.6, subdivision (c), states: 'In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of subdivision 2 or 3 of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction. . . . Such term shall not be included in determination pursuant to Section 1170.1. . . .' (Italics added.) [¶] Subdivision (c) thus unequivocally provides for a special consecutive term independent or 'in lieu' of that established by section 1170.1. The Legislature provided for enhancements in subdivisions (a) and (b), but not in subdivision (c) or (d). A 'full, separate and consecutive' term is an option available to the trial court when a sex crime enumerated in subdivisions (c) and (d) has been committed. There is nothing to plead and prove as an additional ingredient of such an offense. An 'enhancement' results in a penalty additional to that normally imposed for the charged offense, based on proof of additional facts. The consecutive sentence permitted by Penal Code section 667.6, subdivision (c), is based on the crime for which convicted; no additional factual finding incidental to another charge is necessary." (People v. Stought, supra, 115 Cal.App.3d at pp. 742-743.) We therefore reject defendant's unsupported argument that due process requires that the alternative sentencing provisions of section 667.6 be pleaded.
C. Defendant Was Not Given Full, Consecutive, Aggravated Sentences for Offenses Included in One Incident
Defendant argues that "Counts 4, 6, 13, 14, 15, 16, 17 and 18 are not subject to mandatory, full and consecutive sentencing under Penal Code section 667.6 (d) to Counts 3, 5, 7, 8, 9, 10, 11 and 12" because there is insufficient evidence that he was able to reflect on his conduct during the sex acts comprising each separate incident, even if there was sufficient evidence of reflection between separate incidents. Defendant's argument fails because he did not receive consecutive sentences for intra-incident offenses. Counts 3 and 4 involved an act of forcible oral copulation followed by an act of forcible digital penetration that occurred during one episode. The court selected count 4 as the principal term and imposed an aggravated term of eight years. For count 3, the court imposed a concurrent aggravated term. Nothing in section 669, 1170.1 or 667.6 prohibits the court from selecting and imposing a concurrent aggravated term, assuming valid aggravating factors exist.
Similarly, counts 5 and 6 involved an act of forcible oral copulation followed by an act of digital penetration that occurred during an episode separate from the episode involving counts 3 and 4. The court imposed a concurrent aggravated sentence for count 5, and selected a full, aggravated sentence for count 6 consecutive to count 4, the principal term. The court selected full aggravated and consecutive sentences for counts 7, 8, 9, 10, 11, and 12, each of which represented a separate incident of forcible rape. However, for the companion sex crimes alleged in each of counts 13 through 18 (all based on forcible oral copulation), the court also imposed concurrent terms. No sentencing error appears.
D. The Court Did Not Impose a Fully Consecutive Sentence Under Section 667.6 For a Non-Enumerated Offense
Next, defendant argues that the court erred by applying section 667.6 sentencing to counts 3 and 5, because forcible oral copulation in violation of section 288a, subdivision (c) is not one of the enumerated offenses to which section 667.6 applies. Defendant is correct that forcible oral copulation is not among the enumerated offenses to which 667.6 applies, but that fact does not assist him because the court did not impose fully consecutive sentences for counts 3 and 5. As noted, the court imposed concurrent sentences for those offenses. No sentencing error appears.
E. Substantial Evidence Supports the Aggravated Sentences
The trial court found by a preponderance of the evidence that four of the aggravating factors listed in the California Rules of Court applied to defendant: (1) the crimes involved the threat of harm and disclosed a high degree of cruelty, viciousness or callousness, because in each incident there was both oral copulation and either digital or penile sexual penetration; (2) the victim was particularly vulnerable; (3) the crime was carried out in a way that indicates sophistication and planning, because "[h]e thought about it. He dissuaded her from seeing her friends unless she did this"; and (4) defendant took advantage of a position of trust or confidence to commit each of the offenses. (Cal. Rules of Court, rule 4.421) At sentencing, defense counsel conceded that defendant took advantage of a position of trust or confidence.
California Rule of Court 4.421(a) states in relevant part: "Factors relating to the crime, whether or not charged or chargeable as enhancements include that: [¶] (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; [¶] (2) The defendant was armed with or used a weapon at the time of the commission of the crime; [¶] (3) The victim was particularly vulnerable; [¶] (4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission; [¶] (5) The defendant induced a minor to commit or assist in the commission of the crime; [¶] (6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process; [¶] (7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed; [¶] (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; [¶] (9) The crime involved an attempted or actual taking or damage of great monetary value; [¶] (10) The crime involved a large quantity of contraband; and [¶] (11) The defendant took advantage of a position of trust or confidence to commit the offense."
On appeal, defendant likewise "does not dispute that he took advantage of a position of trust and confidence to commit the crimes, as the trial court found." He maintains, however, that the record does not contain substantial "evidence of 'great' or other 'violence' or 'high degree' of 'cruelty,' 'viciousness' or 'callousness';" that M. "was not 'particularly vulnerable'" because she was 16 years old and, according to the court, the adult in the relationship, who showed maturity beyond her years in her ability to handle the criminal proceedings and testify at trial; and that far from "involv[ing] 'planning and sophistication,' . . . his conduct was glaringly unsophisticated and appears to have involved no planning at all." We disagree.
Rule 4.421(a)(1) lists as an aggravating factor that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Emphasis added.) In other words, great violence, great bodily harm, and the threat of great bodily harm are examples of acts that disclose a high degree of cruelty, viciousness, or callousness. In this case, the trial court found that the acts "involve[d] [a] threat or harm" disclosing the requisite degree of cruelty, viciousness or callousness because each of the eight incidents involved two different sexual assaults: oral copulation and either digital or penile penetration. Defendant does not address this point in either his opening or reply briefs. M.'s testimony provides substantial evidentiary support for the trial court's finding that each separate incident involved more than one type of sexual assault. The court did not abuse its discretion in considering the number and type of sex acts per incident as indicative of a higher degree of callousness than an incident involving only one sexual assault.
With respect to victim vulnerability, we interpret the court's comments about M.'s age and maturity differently. The court remarked: "I realize[d] the day that I heard the pretext phone call this was a young lady who basically had to grow up. And I remember things struck me the most about that phone call as I said to myself, my goodness, she's the adult in this relationship. By 16, 17 years old and he's the child. . . . And the maturity that she showed, the ability to testify, the ability to go through this really said a lot. . . . But she . . . had to grow up well beyond her years. Really doesn't deserve that. . . . You know, when children are teenagers, the biggest control that parents have over them is saying what they can and can't do, especially when it relates to their friends. When you can Lord it over them and say, well, I'm not going to allow you to go see your friends and go do things, that's the biggest control you have over them because teenagers are in that period of time where they're still trying to find themselves but they're still trying to fight you. You know, this may not have been force. This may not have been fear but it was mental duress. And that kind of duress that kind of—well, you know, I'll let you go be with your friends but you got to do this to me. That's why the law says that duress is equal to force in terms of raising a sex crime to a forcible sex crime."
Putting those remarks in context, the court clearly viewed M. as particularly vulnerable because defendant's conduct had reversed the normal roles of parent and child, forcing her to "grow up well beyond her years," that is, faster than she should or would have grown up if defendant had not pursued a coercive sexual relationship with her. In addition, the trial court considered that defendant achieved his sexual goals by applying pressure where M. was most vulnerable to it as a teenager, by conditioning what she wanted most—freedom to be with her friends—on her provision of sexual favors. Again, M.'s testimony fully supports the court's view of the evidence, and we find no abuse of discretion in the court's assessment that M. was particularly vulnerable to the type of psychological coercion defendant applied to her.
Finally, the record supports the trial court's finding that defendant "thought about it" and "dissuaded [M.] from seeing her friends unless she did this." Using psychological coercion as a tactic for obtaining sexual favors requires forethought. The trial court did not abuse its discretion in finding that such conduct demonstrated some planning and sophistication.
In short, we conclude the court did not err in finding that the offenses were aggravated because the crimes disclosed a high degree of cruelty, viciousness or callousness, the victim was particularly vulnerable, and the crime was carried out with planning and sophistication.
F. The Record Does Not Show That the Court Failed to Consider Mitigating Factors
Finally, defendant argues that "[t]he record of the sentencing proceedings makes it abundantly clear that the court did not address or consider, on the record, the personal characteristics of [defendant] which would have militated in favor of a lesser sentence." We disagree. The court stated, on the record, that it had read all of the statements in mitigation submitted for its review "in some detail." The court heard testimony from four defense witnesses and defendant himself. The court heard defense arguments in favor of mitigation. At the conclusion of the presentations, the court stated that the circumstances proferred in mitigation either didn't "amount to much" or were, in fact, absent. The court found that the circumstances in aggravation outweighed those in mitigation.
The Attorney General reminds us that "a sentencing judge will be deemed to have considered all relevant criteria 'unless the record affirmatively reflects otherwise.' " (Cal. Rules of Court, rule 4.409) Neither consideration of mitigating factors, nor the reasons for rejecting mitigating factors, need be stated on the record. (People v. Johnson (1988) 205 Cal.App.3d 755, 758; People v. Coombs (1986) 184 Cal.App.3d 508, 511.) Here, the record affirmatively reflects that (a) the court considered the mitigating factors presented to it, and (2) rejected them as insufficiently weighty or non-existent, especially as considered against the factors in aggravation. No sentencing error appears.
IV. There is No Cumulative Error
Finally, defendant argues that if no one error alone warrants reversal, all of the errors together cumulative require reversal. Inasmuch as we have not found any error, we reject defendant's cumulative error argument.
CONCLUSION
The trial court did not commit any errors in admitting evidence of the sexual assault against R. She qualified as an Evidence Code section 1108 witness, discovery compliance was timely, defense requests for continuances were properly denied, and there was no abuse of discretion under Evidence Code section 352. The court did not err in admitting evidence of defendant's use of sexual aids with his wife or a hole in the wall. The verdicts were supported by substantial evidence.
Nor did the trial court commit any sentencing errors. There was no Cunningham error, no pleading error, no error giving full, consecutive aggravated sentences under section 667.6 for one incident, and no error giving a fully consecutive sentence for a non-enumerated offense. Substantial evidence supports the aggravated sentences. The court considered but rejected mitigating factors.
DISPOSITION
The judgment is affirmed.
____________________
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
--------
WE CONCUR:
_______________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
___________________
MIHARA, J.