Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF03380.
SIMS, Acting P.J.
Convicted of sexually abusing his stepson D. S. for years and then trying to keep him from testifying about it, defendant James Lyons Hawes contends: (1) By permitting D. S., aged 22 at the time of trial, to testify with a support person, and without holding a hearing to determine whether it was needed, the trial court violated defendant’s right to a fair trial. (2) Due process requires reversal of defendant’s convictions on all counts of lewd conduct supported only by generic testimony. (3) The trial court violated defendant’s constitutional rights by admitting testimony about prior misconduct and instructing the jury to use it to infer guilt even if it was proven only by a preponderance of the evidence. (4) The trial court abused its discretion by refusing to appoint new counsel to litigate a new trial motion based on ineffective assistance of counsel. (5) The trial court abused its discretion by failing to grant a new trial when newly discovered evidence showed that D. S. had not told the truth at trial. (6) The trial court violated due process and defendant’s right to jury trial by imposing upper terms and full consecutive terms based on facts not tried to the jury. We shall affirm.
PROCEDURE
The information charged the following offenses:
Count 1: Penal Code section 288.5, subdivision (a) (section 288.5 (a)), the “resident child molester” statute [three or more lewd and lascivious acts upon child under 14 residing in same home]), on or about and between January 16, 1997, and July 8, 1997.
Undesignated section references are to the Penal Code.
Count 2: Section 288.5(a), on or about and between August 1, 1996, and July 8, 1997.
Counts 3-5: Section 288, subdivision (a) (lewd and lascivious act upon child under 14 (section 288(a)), on or about and between August 1, 1996, and November 20, 1996.
Count 6: Section 288a, subdivision (c)(1) (oral copulation with child under 14 and more than 10 years younger than defendant (section 288a(c)(1)), on or about November 21, 1996.
Count 7: Section 288a(c)(2); oral copulation with child under 14 by means of force, violence, duress, menace, and fear of immediate and unlawful bodily injury on victim and another person, on or about November 21, 1996.
Counts 8 and 9: Section 286, subdivision (c)(1) (sodomy with child under 14 and more than 10 years younger than defendant (section 286(c)), on or about November 21, 1996.
Counts 10 and 11: Section 286(c)(2) (sodomy by means of force, violence, duress, menace, fear of immediate and unlawful bodily injury on victim and another person, and by threatening to retaliate in the future against victim and another person), on or about and between July 9, 1997, and July 8, 2000.
Count 12: Section 269, subdivision (a)(4) (aggravated sexual assault [oral copulation by force, violence, menace, duress, and fear of immediate bodily injury] of child under 14 and more than 10 years younger than defendant (section 269(a)), on or about November 21, 1996.
Counts 13 and 14: Section 269(a)(3) (aggravated sexual assault [sodomy by force, violence, menace, duress, and fear of immediate bodily injury] of child under 14 and more than 10 years younger than defendant), on or about November 21, 1996.
Count 15: Section 288(a), on or about and between November 22, 1996, and July 8, 1997.
Count 16: Section 288(c)(1) (lewd or lascivious act upon child aged 14 or 15 and at least 10 years younger than defendant), on or about and between July 9, 1997, and August 31, 1997.
Counts 17 and 18: Section 288a(c)(1), on or about and between November 22, 1996, and July 8, 1997.
Counts 19 and 20: Section 288a(b)(2) (oral copulation with person under 16 by person over 21), on or about and between July 9, 1997, and August 31, 1997.
Counts 21 and 22: Section 288(c)(1), on or about and between August 15, 1997, and September 1, 1997.
Count 23: Section 288a(b)(2), on or about and between August 15, 1997, and September 1, 1997.
Count 24: Section 422 (threats to commit crime resulting in death or great bodily injury), on or about and between March 1, 2003,, and May 31, 2003.
Count 25: Section 140 (threat of force or violence on a witness or victim because of assistance in prosecution), on or about and between March 1, 2003, and May 31, 2003.
Count 26: Section 136.1, subdivision (c)(1) (dissuading a witness (section 136.1)), on or about and between March 1, 2003, and May 31, 2003.
The information also alleged that section 803, subdivision (g) (section 803(g)), tolled the time limitation to commence prosecution because D. S. reported the offenses to a law enforcement agency on or about October 31, 2002, the offenses charged in counts 3 through 11 and 19 through 23 involved substantial sexual conduct (§ 1203.066, subd. (b)), and independent evidence corroborated D. S.’s allegations.
During trial, the People dismissed count 1 in the interests of justice, and the trial court granted defendant’s unopposed motion to dismiss counts 8, 9, 13, and 14 for insufficient evidence (§ 1118.1). The court instructed the jury that conviction on count 2 would require acquittal on counts 3 through 7, 12, 15, 17, and 18, charged in the alternative to count 2. (People v. Johnson (2002) 28 Cal.4th 240, 248; § 288.5(c).)
The jury convicted defendant on counts 2, 10, 11, 16, 19, 24, 25, and 26, acquitting on the remaining counts, and found the section 803(g) allegation true.
After denying defendant’s motion for new trial, the trial court sentenced him to consecutive terms as follows: 16 years (the upper term) on count 2, eight months (one-third the middle term) on counts 16 and 19, eight years (the upper term) on counts 10 and 11, and three years (the middle term) on count 26, totaling 36 years and four months. The court also imposed two years (the middle term) on counts 24 and 25, but stayed sentence pursuant to section 654.
FACTS
Prosecution case
Background
Defendant married B. S., his third wife, in October 1989. She had two sons: D. S., aged six, and C. S., aged one.
By the time of trial, B. S. had divorced defendant and married M. M., who also testified at trial.
Over the next few years, the family moved quite often. In 1993 or 1994, the family moved to Kentucky for two years (when D. S. was 10 to 12 years old), then briefly to Manteca, California (where D. S. turned 13), and, in August 1996, to Davis, California. In Davis, defendant and B. S. managed the apartment building the family lived in until defendant’s arrest in January 2003.
D. S.’s account
According to D. S., one night in Kentucky he and defendant were in the basement watching the movie “Stargate” on television. When a male character touched a female character, defendant put his hand on D. S.’s leg, saying that it should feel good when someone touched him. D. S. got an erection. Defendant suggested that D. S. go behind the water heater, touch his penis, and tell defendant how it felt. D. S. went behind the water heater and put his hands in his pants. After he came back, defendant put his own hands in D. S.’s pants, touched D. S.’s penis over his underwear, and asked him how it felt. D. S. told him it felt good.
A month or two later, when they were in the living room watching Star Trek: Voyager (the first season), defendant told D. S. to go into his room, get under the covers, and touch himself. D. S. did so, but nothing happened. Defendant told him not to worry about it but keep doing it, because it would be the best feeling D. S. ever felt. Another time, defendant played a pornographic tape for D. S., which induced an erection.
The family moved to Davis when D. S. was 13 years old. In Davis, prior to November 22, 1996 (when the movie “Star Trek: First Contact” was released), defendant asked D. S. if he had ever masturbated successfully and D. S. told defendant he had not. Defendant asked if D. S. wanted help and D. S. agreed. Defendant masturbated D. S. at least five times, at least once while watching the Playboy Channel. D. S. enjoyed it, but felt “dirty” afterward.
Eventually, defendant told D. S. he was giving D. S. “a gift, sharing something” with D. S. and D. S. needed to “share something back.” D. S. felt emotional pressure to allow defendant to touch him because defendant was his stepfather, and defendant told him that was what “fathers and sons do.” Defendant also warned D. S. not to tell his mother, who would not understand, or his brother, who told her everything.
The day before the “Star Trek” movie premiered, defendant put on a pornographic video. D. S. masturbated himself and then masturbated defendant. Defendant then orally copulated D. S., who ejaculated in defendant’s mouth. Defendant seemed disappointed when D. S. said he was not ready to reciprocate. Defendant told D. S. what they were doing together was healthy and normal and that he loved D. S.
Between the movie premiere and D. S.’s 14th birthday (July 9, 1997), he and defendant would watch adult movies, then engage in mutual masturbation; defendant also orally copulated him at least once a week, either in the computer room or the living room.
Defendant and D. S. occasionally engaged in sex acts in the building’s recreation room and in a vacant neighboring apartment. At 15, D. S. began to orally copulate defendant. At 16 or 17, on defendant’s orders and feeling powerless to resist, D. S. sodomized defendant around three times; eventually, if D. S. did not do so, defendant would retaliate against him. Defendant tried to sodomize D. S. three or four times, but his penis was too large, making his attempts at penetration painful. D. S. participated “in the molest because [he] felt [he] didn’t have a choice, that it was appropriate and because that is what [he] was told that [he] was to do by [his] stepfather.”
D. S. had worked with and for defendant at the building starting at age 14.
D. S. told Davis Police Detective Alan Dunn that this happened the first time when C. S. and B. S. were outside in the pool. At trial, however, he “remember[ed] it differently.”
D. S. felt trapped and feared defendant, who owned many guns and had been violent with him. In Kentucky, defendant had picked him up by the throat and pinned him against the wall. When D. S. was in tenth grade, defendant ended an argument between D. S. and C. S. by hitting D. S. in the face, injuring his nose and chipping his teeth. The summer after graduating from high school, D. S. stood 6 feet 1 inch tall but weighed only 130 pounds, while defendant, though shorter, was much heavier. Defendant called D. S. “fag” (among other things) and mocked his way of speaking and carrying himself.
According to C. S., defendant carried a snub-nose pistol in his pocket at almost all times. B. S. and M. M., who was a maintenance man at the apartment building while defendant and B. S. lived there together, also testified as to defendant’s gun ownership. O. L., a tenant in the apartment building, testified that D. S. seemed afraid of defendant.
C. S. also testified about this episode.
Although D. S. hated defendant for mistreating him, he wanted a father. Defendant told him that fathers and sons did these kinds of things, and that some old men had done them to defendant when he was a child.
According to D. S.’s testimony, the last molestation, which involved oral copulation, masturbation, and sodomy, took place just before a school mock trial competition. Although he had previously said the molestation ended in 1999, he was now positive it continued until 2001.
D. S. finally was able to stop the molestation by avoiding the situations which led to it. This made defendant very angry and caused “hell” to “break loose” in the home. Defendant dictated a “contract” about D. S.’s alleged misbehavior and need to reform, which D. S. wrote out and signed.
D. S. admitted that he had drunk alcohol in high school, used alcohol and drugs after graduating, had homosexual relations with another teenager in 1997, and was told by B. S. that she intended to kick him out of the apartment.
One night when D. S. came home late, then tried to walk away from defendant, defendant punched him and blackened his eye. The next day, B. S. said he did not have to come home that night.
D. S. was then working at a Quizno’s restaurant. The owner and the other employees saw D. S.’s black eye and heard from him how he got it.
After moving in with acquaintances, D. S. started heavy drinking and drug use; he also took up dyeing his hair and wearing black nail polish. He had sexual contact with another male during this period. He enrolled at Sacramento City College, but dropped out.
About six months after leaving home, D. S. moved to Southern California, where he cut down on drinking and drugs and joined a church. In August 2002 he started seeing Kathy Lewczyk, a therapist at the church, reporting depression, anger, and suicidal impulses. He told Lewczyk at their first session that defendant had molested him.
Called by the defense, Lewczyk testified that she had had 26 counseling sessions with D. S. from August 2002 to August 2003. He was extremely depressed and claimed three suicide attempts. He disclosed on his first visit that he had been molested about once per week between the ages of 10 and 15 (i.e., from 1994 to 1999), with the first incident occurring after he and defendant watched “Stargate” together. He mentioned mutual masturbation and oral sex, but not anal sex.
On October 31, 2002, D. S. reported the molestation to Davis Police Officer Manuel Guerrero in a telephone interview, saying that it began around 1992, when he was nine, and ended in 1998, when he was 15 and told defendant he wanted it to stop. He alleged that defendant showed him pornography, engaged in oral sex with him, and attempted to penetrate him.
Defendant tried to impeach Officer Guerrero for bias by showing that the two had clashed in the past over unrelated matters.
D. S. also called B. S. and told her about the molestation, but she refused to believe him or to speak to him for months after. In May 2003, however, they reconciled. In August 2003, he returned to Davis, staying first with M. M., the handyman of B. S.’s and defendant’s building, then with a girlfriend. After B. S. and M. M. married in November 2004, D. S. moved in with them.
M. M. acquired legal residency in the United States by marrying B. S. Before then, defendant had said when he had a problem with M. M. that it would be easier to deport him.
After Officer Guerrero, D. S. spoke to Davis Police Detective Alan Dunn. D. S. told Detective Dunn that the molestation began in Kentucky and ended during the summer of 1999. He described defendant’s oral copulation and attempted anal penetration of him, and his anal penetration of defendant, on the night before the premiere of the Star Trek movie (“the worst night of [his] life”). He said that between that night and his 14th birthday there had been about 25 more sex acts with defendant, mostly oral copulation, but also including masturbation and a few instances of anal penetration by D. S. The first act of oral copulation took place in the living room around August 1997, either late at night or while B. S. and C. S. were swimming. Defendant regularly showed him pornographic videos.
D. S. told his ex-neighbor G. J., however, that defendant did it to him on or around November 13, 2002, a day when she had seen police at the building.
Other evidence
B. S. testified that defendant was much closer to C. S. than to D. S., with whom he shared only a taste for science fiction. She and D. S., however, were very close.
According to B. S., defendant owned many guns and stored them, loaded, throughout the apartment. He also owned a small crossbow, with which, in D. S.’s presence, he once killed a cat that had climbed on the patio railing. Defendant told stories, some of which the children heard, about killing dogs and ducks.
B. S. recalled that defendant showed her pornographic videos and admitted a taste for pornography involving animals. In 1996 or 1997, defendant showed her two computer images which he found amusing -- one of a horse and a woman having sex, the other of a woman defecating on a man. In 1999, however, after he told B. S. that D. S. had visited a pornographic website, they took him to see a school psychologist.
When B. S. learned of D. S.’s allegations in August 2002, she would not believe them or have anything to do with him for nine months. They made up after Mother’s Day 2003.
The police served a search warrant on the apartment in November 2002. Defendant told B. S. and M. M. that if the police asked when the third bedroom became an office, the answer should be “not until 1999.”
After defendant’s arrest in January 2003, he was upset about having to strip in jail because it might reveal a distinctive mole on one testicle. B. S. asked how D. S. would be able to describe it; defendant said D. S. could have seen it any number of times, such as in the shower.
For a while after defendant’s arrest, B. S. still believed he was innocent; she visited him regularly in jail until early September 2003. She wrote him affectionate letters at his request so that he could show them to his fellow inmates.
She filed for divorce in October 2003. It became final in July 2004.
In jail, defendant told B. S. that he had become a friend of gang members among the inmates, including Raul Ramos, who had had someone murdered. Ramos and other inmates wrote letters to C. S., which defendant said was to encourage C. S. to stick by defendant.
C. S. testified that he visited defendant in jail with B. S. four or five times. During one visit, defendant said he had had to stop another inmate from calling someone to make D. S. disappear; if defendant said he wanted that, it would be done. C. S. did not immediately tell the police because he was mad at D. S. for getting defendant jailed and he did not think defendant would carry out the threat. But after C. S. got a letter from defendant in September 2003 which called another inmate a snitch and fantasized in gangster-like language about wreaking vengeance on C. S.’s enemies, C. S. reported defendant’s prior statement to Detective Dunn.
The letter said, inter alia: “Anybody messes with you a vengeful wind will blow out of the north and carry your enemies away with it. . . . As the sun sets on that day, the sky will be red, not blue.”
Davis Police Detective Brent Buehring, a member of the Sacramento Valley High Tech Crime Task Force, testified about searches of computers seized from defendant’s apartment (including the bedroom turned office) in the fall of 2002. One computer in the converted bedroom/office contained five images of bestiality, originally saved on October 7, 1997, and last accessed on March 1, 1998; it also contained bookmarks for sexually-related websites, created on January 30, 1997. Another computer (currently out of use) in the bedroom/office also had images of bestiality on it, as did a floppy disk found there. Among the images on the floppy disk was one named “trigger.jpg”; it was saved on September 4, 1995, and last accessed on February 4, 1996. Most of the pornography on the computers was found by doing searches associated with defendant’s name; very little was found by searching for D. S.’s name.
This computer had no e-mail records for D. S.
Dr. Anthony Urquiza, a psychologist, testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS), a pattern of behavior which can occur in molested children. It includes secrecy, a sense of helplessness, entrapment, delayed and unconvincing disclosure, and retraction (though not all occur in every case). According to Urquiza, an estimated 35 to 40 percent of victims do not disclose their molestation before they turn 18. When disclosure happens, either in adults or in children, it may grow fuller over time, sometimes including the recovery of repressed memories or fragments of memories. Hypnosis or suggestion can implant false memories, but this is rare.
Two relatives of defendant, M. H. and W. R., testified pursuant to Evidence Code section 1108 (§ 1108). M. H., defendant’s niece, was 40 at the time of trial; W. R., defendant’s nephew and M. H.’s brother, was 35.
M. H. recalled four incidents of violent sexual abuse by defendant. When she was five or six, her grandparents took her to a house where defendant gave her a puppy; she and the puppy were then taken to a basement, where defendant, wearing a hooded black robe, shot the puppy, said the same would happen to her if she told anyone, and sodomized her. When she was seven and defendant was staying at M. H.’s home, he came into her bedroom and raped her, causing her to bleed; he told her that if she disclosed it he would kill her siblings; he then pulled out a small gun, forced it against her nose, and said he wished he could smash her face in. When she was 12, she was in a basement or warehouse with her grandfather, defendant, and three other men wearing robes; her grandfather and defendant took turns holding her down on a table and raping her; when a third man began to rape her, she blacked out. Finally, when she was 14 or 15, she was going into her grandparents’ living room when defendant appeared, blocked her path, and raped her.
She denied remembering anything ritualistic about this incident.
M. H. also testified that defendant came to her wedding in 1986, along with his second wife.
W. R. recalled that when he was four to seven years old, defendant once sodomized him and once forced him to orally copulate defendant by threatening to kill W. R. or a family member. W. R. also recalled that sometime during the same period, defendant, W. R.’s grandfather, and other adults, wearing hooded robes, apparently beat a baby to death, tore it apart, and tried to force W. R. to eat a portion. When W. R. was around 12 or 14, defendant told him to get a big bag from defendant’s car, then started to pull guns from the bag in the presence of W. R.’s mother, J. R., who was terrified of guns; her reaction amused him.
W. R. claimed to have remembered the molestation and baby-killing for many years. He told no one about the molestation until Detective Dunn contacted him in the present case, however, and then only reluctantly (as Dunn confirmed in his testimony). He told the story about the baby-killing for the first time at a hearing in this case. Like M. H., he had undergone therapy with Martin Quisenberry, but denied that his memories originated at that time.
The conditional examination of J. R. was read into the record. She supported her children’s stories. She also claimed that defendant’s entire side of the family engaged in “pagan religion and satanism.”
Defense case
Defendant, testifying on his own behalf, denied the alleged molestation and almost all other wrongdoing.
According to defendant, he and D. S. had had a poor relationship in the six months before D. S. moved out, partly because defendant had had to intervene for a year or more in the ongoing fighting between D. S. and C. S. Sometimes, however, he would “unground” D. S. so that they could watch Star Trek together.
Defendant admitted striking D. S. twice. Once he slapped D. S. after D. S. had given C. S. a bloody lip. The other time, the night before D. S. moved out, defendant struck him by accident, probably with an elbow, after D. S., apparently drunk, grabbed defendant’s hand and pulled away.
By the time of that incident, B. S., fed up with D. S.’s contentiousness and disrespect toward the rest of the family, had given him a deadline to move out. Defendant had then drawn up the “contract” with D. S., trying to mediate between him and B. S. and to make it clear what rules he had to follow to avoid being kicked out.
Defendant collected weapons and gave safety training on them, but never threatened anyone with them. He never shot a cat with a crossbow. He had shot dogs and ducks in Kentucky, but only to protect people or to put injured animals down humanely.
Defendant had mentioned sexual fantasies to B. S., but had never asked her to act them out. He had never talked to her about bestiality. The images of bestiality and defecation B. S. described were on the computer in the master bedroom in the fall of 1998, but he did not put them there: like other such items, they appeared after D. S. had been left alone at home. Defendant had visited pornographic websites, but only in response to deceptive e-mails or to show others what he had found on the computer.
This behavior was what prompted defendant and B. S. to consult a school psychologist about D. S. in his sophomore year.
He did at one time own a few adult videos (e.g., “Behind the Green Door”) and had shown them to B. S. once or twice.
Defendant denied sexually assaulting M. H. or W. R. He also denied taking part in any family ritual or cult.
Three relatives from a different branch of the family, M. U., R. U. and C. U., who all claimed to dislike defendant personally, testified the family had not engaged in a satanic cult or pagan rituals.
According to defendant, he did not threaten D. S. from jail. When other inmates talked about making defendant’s problems go away, they were just playing a joke on him. He and inmate Ramos had formed a sort of jailhouse-lawyer team to help other inmates. He had mentioned other inmates and had asked them to write to C. S. to try to put him at ease about defendant’s situation. The letter from him which C. S. construed as gang code was just an attempt to be “hip”; its reference to another inmate as a snitch was the kind of thing people laughed about in jail.
Two expert witnesses testified for the defense. Gordan Douglas, a computer expert, opined that D. S. and his friends could have downloaded much of the pornography on the family computers. Dr. Jeffrey Younggren, a psychologist, opined that CSAAS is a poorly validated pseudo-syndrome, therapists have been known to induce false memories in patients, the existence of satanic ritual abuse has never been verified, and persons who claim to remember sexual abuse in conjunction with satanic rituals are probably not credible.
DISCUSSION
I
During trial, D. S. testified with two “support persons” (§ 868.5) in the courtroom: B. S. and victim/witness counselor Karen Sifuentes, who did not testify. Defendant claims that because section 868.5 “permits trial courts to allow support persons without even a minimal showing of necessity, it violates the Sixth Amendment Right to Confrontation and the presumption of innocence.” Defendant acknowledges this claim has been roundly rejected in the California Courts of Appeal. (People v. Johns (1997) 56 Cal.App.4th 550, 555-556; People v. Adams (1993) 19 Cal.App.4th 412, 443; People v. Patten (1992) 9 Cal.App.4th 1718, 1727.)
Defendant has cited no authority finding section 868.5 unconstitutional. The cases which have considered this issue have found there is no inherent prejudice in section 868.5 (Adams, supra, at pp. 436, 437), there is no effect on the presumption of innocence (Patten, supra, at p. 1733; Adams, supra, at p. 436), there is no due process violation (Patten, supra, at p. 1727; Johns, supra, at p. 586) and, no infringement on any constitutional rights. (Patten, supra, at p. 1727.) We find the reasoning in these cases persuasive and agree that the statute is not unconstitutional.
At best, there is a suggestion in Adams that there is a requirement of a showing of necessity implicit in the statute. (Adams, supra, at p. 444.) Even with that, however, Adams does not hold that the statute is facially unconstitutional. Further, nothing in Adams suggests that where the support person does not testify there is a required showing of necessity. (See Adams, supra, 19 Cal.App.4th at p. 434.)
Perhaps anticipating this conclusion, defendant continues his argument “even if permitting a support person without a hearing is proper in some cases, it violated due process here because the support person was unrelated to [D. S.], the prosecutor made sure the jury knew the support person’s location and purpose, and [D. S.] was 22 years old.” We are not persuaded.
Background
The People moved in limine to permit the presence of a support person. Asserting that they did not yet know whom, if anyone, D. S. might want in that capacity, they requested either one or two support persons, including “Victim/Witness counselor” Sifuentes.
Before trial, the prosecutor told the trial court that D. S. would like B. S. as a support person, “and of course, the victim witness person as well, which isn’t an issue.” Because B. S. would be a witness, defense counsel objected to her also being a support person, “especially if someone from victim witness is there.” The court asked how old D. S. was. The prosecutor said “20,” but noted that the statute providing for support persons does not restrict their use to children; the prosecutor added that if B. S. were allowed to be a support person, she would testify before D. S. The court took the matter under submission as to B. S. There was no objection to a victim/witness counselor acting as a support person.
Just before jury trial began, the trial court asked whether they had “worked . . . out” the support person issue; the court recalled: “I allowed it, I think.” The prosecutor said: “He wants his mother. She’s going to testify first.” Defense counsel did not comment. The court said it was granting the motion for a support person: “I did previously.” Again, no one objected to a victim/witness counselor being a second support person for D. S.
During D. S.’s cross-examination, defense counsel asked about his application for victim/witness funding to help pay for counseling and showed him the application. D. S. stated that Karen Sifuentes had filled it out in March 2003.
Defense counsel was exploring the periods in which D. S. had sought and received counseling, and the manner in which that counseling was being paid for. Specifically, he was apparently attempting to suggest that D. S. was being dishonest in his complaints about having been molested, because even though the victim compensation fund had authorized up to 30 sessions of counseling, he did not avail himself of that opportunity. In trying to raise this specter, defense counsel questioned D. S. about whether he had applied for victim/witness funding for counseling, when he did so, and whether he filled out the application himself. D. S.’s answers were largely uncertain about the form and the funding. Defense counsel asked who prepared the funding application for him and D. S. named Karen Sifuentes. On re-direct, the prosecution elicited more information about D. S.’s relationship with Karen Sifuentes.
On redirect, after eliciting from D. S. again that Sifuentes had filled out the application, the prosecutor asked: “Do you see her here in court?” D. S. said that he did and that she was sitting “next to my mom.” He explained that she was “a victim/witness counselor or worker.” He agreed that she was also his “advocate” and added that “[s]he is supposed to help me get help. She is supposed to advocate for me so that I can be okay.” The prosecutor asked: “And help you get counseling if need be?” D. S. answered: “Yes.” Defense counsel did not object to this questioning.
Analysis
Section 868.5 authorizes a prosecuting witness in cases involving particular offenses, including sections 288a or 288.5, to have up to two support people during their testimony. (§ 868.5, subd. (a).) If the support person is also testifying, the prosecution must present evidence that the person’s attendance is both desired by and helpful to the prosecuting witness. (§ 868.5, subd. (b).) After making such a showing, the court must grant the request, unless defendant has put forward evidence, or the court notices, that the person’s attendance “poses a substantial risk of influencing or affecting the content of that testimony.” (§ 868.5, subd. (c).) If the support person does not testify, there is no requirement that there be a showing the support person is desired or helpful to the prosecuting witness. (§ 868.5, subds. (a) & (b); Johns, supra, 56 Cal.App.4th at pp. 554-555; Adams, supra, 19 Cal.App.4th at p. 434.)
Initially, we note defendant has forfeited this claim of error by failing to request a hearing, failing to request a determination of necessity or to otherwise object in any way to the presence of Sifuentes in the courtroom as a support person. (People v. Lord (1994) 30 Cal.App.4th 1718, 1722.) Defendant only objected to B. S. as a support person, and that objection was partially based upon the fact that B. S. was not necessary because Sifuentes would be there as a support person. However, even if this claim were not forfeited, defendant’s claim is without merit.
In his reply brief, defendant contends the lack of objection does not forfeit his challenge to section 868.5 because his challenge is to the facial constitutionality of the section. We have addressed that challenge above. However, defendant does not only challenge the facial constitutionality of section 868.5. Recognizing the weight of authority is against this facial challenge, defendant also challenges the constitutionality of the section as applied in this case. That challenge can be forfeited by a lack of objection.
Section 868.5 does not, in fact, require a hearing to determine whether the prosecuting witness needs support, it requires a showing. It only requires such a showing when the support person will also be a witness. Where the support person does not testify, there is no requirement of a showing of necessity. (Johns, supra, 56 Cal.App.4th at pp. 554-555.) Because Sifuentes did not testify, there no showing of necessity was required.
Furthermore, even if, as defendant claims, a showing was mandated in this case, and even if the court erred in not requiring the prosecution to make such a showing, defendant has not pointed to anything in the record which would make such an error prejudicial. Relying on Patten, defendant argues the lack of a hearing was prejudicial because D. S. was not a minor, Sifuentes was identified as a victim/witness advocate, and Sifuentes was not a family member. These factors, defendant claims, created a significant risk the jury would be improperly influenced by Sifuentes’ presence.
In Patten, the People requested the victim be allowed two support people. Defendant objected, based on the victim’s “age and everything else.” (Patten, supra, 9 Cal.App.4th at p. 1724.) When asked to state her need for the support people, the victim stated, “I would appreciate it.” (Ibid.) There was no hearing. (Ibid.) The court found the “absence of . . . a case-specific showing of necessity does not, as defendant argues, make this statute unconstitutional per se. This is so because procedures available to utilize support persons pursuant to the statute would not infringe any constitutional rights.” (Id. at p. 1727.)
The facts in Patten do not reveal the victim’s age. However, it is clear she was an adult victim as she had three-year-old and 18-year-old-daughters at the time she was assaulted. (Patten, supra, 9 Cal.App.4th at p. 1721.)
The court went on to evaluate whether under the specific circumstances of that case, a showing of necessity was required even though not required by the statute. (Patten, supra, 9 Cal.App.4th at p. 1727.) The court noted there were various individualized variables and circumstances which would affect whether the presence of a support person violated defendant’s rights. (Id. at p. 1731.) Those variables included, but were not limited to, the relationship between the victim-witness and the support person, the proximity of the support person to the victim-witness and whether the support person does anything that might influence the victim-witness or the jury. (Id. at pp. 1731-1732.)
Because of the wide range of factors contributing to the question of error and prejudice, the court found, “It is critical that the appellate record reflect as clearly as possible all the factors bearing on the issue. At the least, the record should reflect who the support person is, the precise location of the support person during the witness’s testimony, and any activities of the support person during the testimony. In those cases where the procedures employed in the use of the support person might unfairly influence the jury’s determination of credibility, the court should explore on the record the necessity of the procedure and explore the viability of other alternatives. Without a record detailing how the procedure was carried out, we can find no particular factors demonstrating that the jury may have been unfairly influenced by the presence of support persons. [¶] . . . [¶] . . . The utilization of support persons is not by itself a practice that presents an unacceptable risk that impermissible factors will come into play which might erode the presumption of innocence. Defendant has not presented any facts here that the particular practice presented an unacceptable risk or that the court should have required a showing of necessity for the procedure. Nor has defendant shown any actual prejudice. Defendant has failed to show a due process violation.” (Patten, supra, 9 Cal.App.4th at p. 1733, fn. omitted.)
Here, to the extent the record reveals Sifuentes’ proximity to D. S. when he was testifying, the suggestion is that she was in the back of the courtroom. The only reference to her location came in the context of the hearing on the motion regarding B. S. as a support person, at which the prosecutor noted D. S. just wanted his mother in the courtroom, in the back. When Sifuentes was identified in the courtroom during D. S.’s testimony, she was sitting next to B. S. The record does not suggest that Sifuentes was seated at the witness stand with D. S. while he was testifying, which is the concern noted with respect to the support person’s location.
As for Sifuentes’s identification to the jury as a support person, Sifuentes was not identified as a neutral or objective support person. Sifuentes was specifically identified as a victim-witness advocate who had been helping D. S. in matters such as obtaining counseling. Such an identification does not, in and of itself, bolster a witness’s credibility. The identification and presence of a support person does not “require the jury to infer that the support person believes and endorses the witness’s testimony.” (Adams, supra, 19 Cal.App.4th at p. 437.) There is nothing in the record which suggests Sifuentes did anything to convey she was vouching for D. S.’s credibility. Nor did Sifuentes testify herself. Thus, she did not gain any additional stature or import with the jury as an objective professional who had assessed and accepted the validity of D. S.’s claims. D. S. had already been identified as a potential victim. His claims had been assessed by neutral professionals in the district attorney’s office and the police department. Sifuentes’s presence in the courtroom as a victim-witness advocate did no more to bolster D. S.’s credibility than the fact that charges had been brought based on D. S.’s claims.
Nor was the court necessarily required to admonish the jury to disregard the presence of the support person. Trial testimony in this case constitutes over 1,900 pages of transcript. D. S.’s testimony covers over 300 pages of that transcript. Defendant’s testimony also covers over 300 pages of that transcript. The combined total of reference to Sifuentes in the transcript is about two pages. In such a circumstance it is not unreasonable for the court to conclude such an admonishment would draw undue attention to Sifuentes’s otherwise unobtrusive presence. (See Patten, supra, 9 Cal.App.4th at p. 1732.)
Nor do we believe such a deminimus reference to Sifuentes would have drawn “particular attention” to her as a support person. (See Patten, supra, 9 Cal.App.4th at p. 1727.)
As for Sifuentes’s conduct during the trial, there is simply no evidence in this record that Sifuentes engaged in any conduct which would have improperly influenced either D. S.’s testimony or the jury. Under the statute, evidence of a substantial risk of improper influence may be presented by the defendant or it may be conduct which is noticed by the court. If the court notices such improper conduct, it can remove the support person from the courtroom. (§ 868.5, subd. (b).) “Thus, the statute provides a safety valve where a defendant is unable to present substantive evidence of improper influence but the court, which is able to observe the proceedings and the demeanor of the witness, concludes there is a substantial risk of influence.” (People v. Kabonic (1986) 177 Cal.App.3d 487, 498.) On this record, we can find no particular factors indicating either that D. S.’s testimony was unfairly influenced or that the jury was improperly influenced by Sifuentes’s presence as a support person. (See Patten, supra, 9 Cal.App.4th at p. 1733.) Accordingly, even if there was an error in the proceedings related to Sifuentes, such an error could not have been prejudicial.
II
Defendant contends that state and federal due process require the reversal of his convictions on counts 16, 19, 20, 21, and 22, as they are each supported only by generic testimony as to time, place, and frequency. Defendant argues that “[g]iven the generalized nature of the state’s evidence on these counts, [defendant] was not adequately advised of the charges against him so that he had a reasonable opportunity to prepare and present a defense.”
Defendant also makes this argument with respect to Count 23. However, defendant was acquitted on Count 23.
Defendant relies on two vintage cases, People v. Williams (1901) 133 Cal. 165 and People v. Castro (1901) 133 Cal. 11, to support his claim of a due process violation. However, as defendant acknowledges, the California Supreme Court has more recently held that convictions for multiple counts of unlawful sexual conduct based on generic testimony do not necessarily violate due process. (People v. Jones (1990)51 Cal.3d 294, 316-320.)
In Jones, the Court held that “the due process and evidentiary concerns that troubled us in Castro and Williams do not outweigh the state’s interest in fully prosecuting and convicting resident child molesters.” (Jones, supra, 51 Cal.3d at p. 311.) “[G]iven the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself, result in a denial of a defendant's due process right to fair notice of the charges against him.” (Jones, supra, at p. 318.) “Moreover, contrary to the stated assumptions of Castro [] and Williams [] generic child molestation charges by no means deprive the defendant of a reasonable opportunity to defend.” (Jones, supra, 51 Cal.3d at p. 320.)
Jones held, “[t]he victim, of course, 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.” (Jones, supra, 51 Cal.3d at p. 316.)
D. S. described acts of masturbation, oral copulation and sodomy. He testified that prior to November, 1996, when the movie “Star Trek: First Contact” was released, defendant masturbated him at least five times. The day before the movie premiered, defendant orally copulated him. Between the movie premier and his 14th birthday in July, 1997, there were incidents of mutual masturbation and oral copulation at least once a week. At 16 or 17, defendant had D. S. sodomize him three or four times, at least once in a vacant apartment and once in their living room. The last molestation occurred before a school mock trial competition when D. S. was 17. This testimony was sufficiently specific under the guidelines of Jones.
Defendant cites no facts and offers no reasoning that would take this case outside the holding of People v. Jones, supra. Therefore we must reject defendant's contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
At trial M. H. and W. R. testified pursuant to section 1108 about defendant’s sexual abuse of them when they were children. M. H. testified about four incidents of molestation by defendant: a sodomy when she was five or six years old; a rape when she was seven years old; a gang rape when she was 12 years old; and, a rape when she was 14 or 15 years old. W. R. testified about two incidents of sexual abuse by defendant, a sodomy and an oral copulation, when W. R. was between the ages of four and seven years old.
Defendant complains section 1108, which authorized the admission of this evidence is unconstitutional. Defendant recognizes that this issue has already been adversely decided in People v. Falsetta (1999) 21 Cal.4th 903, at pages 912 through 920 and 922. We are bound by that decision and will not consider the issue further. (Auto Equity Sales, Inc., supra, 57 Cal.2d 450, 455.)
Defendant also contends the instructions given to the jury regarding their use of the evidence of his prior sexual offenses and the burden on the prosecution relative to those prior offenses constituted reversible error. The jury was instructed with CALJIC 2.50.01.
Defendant attacks CALJIC No. 2.50.01 as given, asserting that it violated state and federal due process and undercut the presumption of innocence and the right to proof beyond a reasonable doubt. As defendant acknowledges, we rejected a challenge to a similar instruction on prior domestic violence (Evid. Code, § 1109) in People v. Pescador (2004) 119 Cal.App.4th 252 at pages 261 through 262, relying on People v. Reliford (2003) 29 Cal.4th 1007 at pages 1013 through 1016. Reliford, in turn, rejected a challenge to a previous version of CALJIC No. 2.50.01 which was not materially different from that given here. (Reliford, at pp. 1013-1016.)
As given in this case, the jury was instructed, “Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense or offenses on one or more occasions other than that charged in this case.
The instruction considered in Reliford was the older version of CALJIC No. 2.50.01, but there “is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses.” (People v. Cromp (2007) 153 Cal.App.4th 476, 480.) For the reasons stated in Reliford and Pescador, we reject defendant's challenge to CALJIC No. 2.50.01 here.
IV
Defendant claims the trial court abused its discretion in denying his motion to appoint substitute counsel to prepare a new trial motion based on alleged ineffective assistance of counsel. We find no error.
Background
On January 26, 2006, defendant wrote to the court and among other issues, stated he had “issues with [his] court appointed attorney” and that he was seeking appointment of counsel to help him in preparing a motion for new trial alleging ineffective assistance of counsel.
On March 10, 2006, the court held a Marsden hearing, based on that letter. The court was not certain whether defendant had actually been making a Marsden motion, so asked defendant if he was seeking a substitution of attorney because his attorney was ineffective. Defendant answered his relationship with counsel had not broken down and went on to say, “I have a lot of respect for [counsel], I think he worked very hard on my case. Whether a person is effective or not I don’t think that has to do so much with their effort, but the result.” Defendant then confirmed he was not asking to have his attorney relieved as counsel.
People v. Marsden (1970) 2 Cal.3d 118.
On May 11, 2006, defendant filed a motion seeking the appointment of substitute counsel to pursue a new trial motion alleging ineffective assistance of counsel. The motion detailed various instances of alleged failings of counsel. Among these alleged failings were that counsel: refused to call defendant’s daughter Kim Swan as a witness to impeach the section 1108 witnesses; refused to call an expert on satanic sexual abuse; refused to call an expert on “lying” and homosexuality; failed to adequately investigate D. S.’s use of the computers to download pornography; failed to speak with potential witnesses who would claim a weapon defendant allegedly used belonged to someone else; failed to present an affirmative defense at the preliminary hearing and at trial; failed to object to inadmissible evidence; failed to object to prosecutorial misconduct; failed to adequately meet with defendant or provide him with copies of discovery materials prior to the preliminary hearing; failed to obtain a copy of a police report offered in discovery; failed to fully investigate claims of bias against the lead detective on the case; and, forced defendant to testify against his wishes.
The trial court read and considered defendant’s motion requesting substitute counsel and denied the request. The court found the motion had no merit based on the claims defendant presented. The court went on to find “[m]oreover, the references to what may have happened or taken place prior to or during the preliminary hearing would not be a basis for granting the motion. [¶] And I just couldn’t see, through reading the request, anything of materiality that would rise to the level of ineffective assistance of counsel. In fact, quite the opposite. [¶] I understand the concern from your standpoint. Obviously, you believe you were wrongfully convicted, and there’s quite naturally a viewpoint when one feels that way to look around and to see errors everywhere else, including your counsel. [¶] . . . [¶] So clearly, in my view, there is not inadequate assistance of counsel, quite the opposite. I thought your counsel was very diligent, very thorough. Some of the issues you are pointing out to me in terms of hiring one expert versus the other expert, those are tactical decisions that are made properly by the lawyer who represents you. [¶] In fact, for what it is worth, I thought the expert you hired, Mr. Younggren or something was outstanding, and I told Counsel that I thought he was an outstanding witness, one of the best experts I have heard in nearly eight years on the bench. [¶] So I am going to deny your request for advisory counsel.”
Analysis
A claim of ineffectiveness of counsel may be raised in a new trial motion. (People v. Smith (1993) 6 Cal.4th 684, 693 (Smith).) The defendant must establish “trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings.” (Id. at p. 691.) The standard is the same whether the motion is made before or after trial. (Id. at p. 696.) “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Ibid.) The decision to appoint new counsel lies in the sound discretion of the trial court and “will not be overturned on appeal absent a clear abuse of that discretion.” (Ibid.)
“If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a ‘colorable claim’ of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.’” (Smith, supra, 6 Cal.4th at pp. 692-693.) That is, defendant is required to “credibly establish[] to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (People v. Stewart (1985) 171 Cal.App.3d 388, 397, disapproved on other grounds in People v. Smith, supra, 6 Cal.4th 684, 694-696.) “The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This [determination] lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Smith, supra, 6 Cal.4th 684, 696.)
We agree with the trial court; we see no material deficiencies in the representation provided by defense counsel. Defendant did not show that defense counsel failed to present exculpatory evidence or testimony that would have substantially benefited the defense. Defendant also did not show that defense counsel failed to articulate legally valid challenges to the admission of any portion of the People's case or to any of the prosecution’s conduct in the case. Defendant did not show that defense counsel failed to adequately investigate or prepare for trial. Defendant’s bare assertions of failings, on largely peripheral issues, without an indication of how the result would have been more favorable to him in the absence of those failings, do not make his claims “colorable”.
Even on appeal, defendant’s appellate attorney offers no argument as to the ways in which a cure of any of counsel’s alleged failings of investigation, calling of particular witnesses, or objecting to evidence or prosecutorial misconduct would have actually resulted in a determination more favorable to defendant. Defendant speculates curing counsel’s alleged failures would have resulted in a different outcome; “yet he has failed to establish as a demonstrable reality any professional lapse in the defense actually employed. [Citation.]” People v. Cox (1991) 53 Cal.3d 618, 662.) “We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant's unsubstantiated speculation.” (Id. at p. 662.) We decline to join defendant in his speculation. (See People v. Bolin (1998) 18 Cal.4th 297, 334.)
It appears that, in truth, defendant’s complaints were most accurately expressed at the March 10, 2006, Marsden hearing, that a counsel’s effectiveness is best judged not by their effort, but by the result. However, “[l]ack of success does not reflect incompetence of counsel. [Citations.]” (Cox, supra, 53 Cal.3d at p. 662.)
When a defendant requests substitution of new counsel after trial in order to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, the court must, as a preliminary matter, elicit from defendant the reasons he believes he was inadequately represented at trial. (People v. Stewart, supra, 171 Cal.App.3d 388, 395.) This can be done in camera or in open court. (People v. Winbush (1988) 205 Cal.App.3d 987, 991.) “Once a trial judge is informed of the facts underlying a defendant's claim of inadequate assistance, he [or she] is then in a position to intelligently determine whether he [or she] may fairly rule on the defendant’s motion for a new trial, or whether new counsel should be appointed to more fully develop the claim of inadequate representation." (People v. Stewart, supra, 171 Cal.App.3d at pp. 395-396.)
With both the March 20, 2006, hearing and the May 18, 2006, motion, defendant had an adequate opportunity to explain the reasons why he thought his current counsel had been ineffective and to explain why he wanted a new attorney appointed to prepare a motion for new trial. These hearings adequately informed the court of the defendant’s claims and enabled it to intelligently determine whether it could rule on the matter or whether counsel should be appointed to more fully develop the matter. This satisfied the court's duty. “After listening to defendant's explanation of his reasons for concluding that his counsel had performed inadequately, the trial court reasonably concluded that defendant had not made a ‘colorable claim’ that counsel’s performance at trial was prejudicially inadequate. The trial court did not abuse its discretion in denying defendant’s request for new counsel to argue the issue of inadequacy.” (People v. Diaz (1992) 3 Cal.4th 495, 574.)
V
Defendant also contends the trial court abused its discretion in denying his motion for a new trial based on newly discovered evidence. We find no abuse of discretion.
On May 24, 2006, defendant filed a supplemental new trial motion. This motion alleged that defendant had found new evidence supporting defendant’s claim that D. S. was not a believable witness “based on his reputation of lying and based upon numerous statements that were inconsistent.” Specifically, defendant’s investigator had interviewed Shawn Pratt, a long-time friend of D. S.’s. Pratt provided a statement to the investigator which suggested D. S. had not been truthful about the pictures of genitalia. That is, D. S. testified the genitalia pictures were of him, whereas Pratt stated the pictures were of himself, D. S. and D. S.’s brother. At trial, D. S. testified the molestation stopped because he started avoiding the situations which led to it. By contrast, Pratt said D. S. had told him about defendant’s molestation of D. S., but that D. S. said he stopped the molestation by threatening defendant with a brick and telling him to stay away from him. Pratt also said D. S. had told him that defendant had made D. S. eat fecal matter and have sex with the dog. In his motion, defendant claimed if this information had “been known by the defense at the time of trial, it would have provided additional ammunition to emphasize the false allegations made by D. S.”
In denying the motion for new trial, the court stated, “in terms of newly discovered evidence, the code actually wants any witness statements to be by way of affidavit. I notice in this case it was a summary of an investigative report. [¶] I can see the reason for the legal requirement of an affidavit under penalty of perjury. It assists the Court in determining the probative value of the actual testimony as opposed to a summarization, which makes it a little more difficult for the Court. [¶] In that situation, or the situation here, the Court has to read between the lines, if you will, to try to glean what the possible testimony would be. But I do not find it rising to the level required under 1181 that would render a different result probable on retrial of the cause.” The court then correctly delineated the factors a trial court must consider upon a motion for new trial. The court went on to state, “But I find even though this is not an affidavit, cutting through that, just reading the statement and reflecting on this trial and the evidence that was elicited, that this information from Mr. Pratt would not render a different result probable on a retrial of the cause, so the motion for new trial is denied.”
“‘“The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citations.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.”’ [Citation.] [¶] In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Section 1181, subdivision 8, provides a motion for new trial may be granted on the basis of newly discovered evidence “[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.” (Italics added.)
Defendant did not produce an affidavit by Pratt, or any other witness. There was not even an affidavit by the investigator who spoke with Pratt. Because of the lack of such an affidavit, there was not a sufficient legal basis for a new trial on the ground of newly discovered evidence, and the court was justified in denying the motion. (See People v. Beeler (1995) 9 Cal.4th 953, 1005 [declaration by counsel, not a witness, legally insufficient].) Accordingly, the trial court did not abuse its discretion in denying the motion for a new trial based on the allegedly newly discovered evidence from Pratt.
VI
Defendant’s final contention is that the trial court violated his due process and jury trial rights by imposing upper term sentences on counts 2, 10, and 11 imposing full consecutive terms on counts 10, 11, and 26 and imposing consecutive terms on counts 16 and 19. We disagree.
Upper Terms - Counts 2, 10, and 11
At sentencing, the trial court imposed the upper term on counts 2, 10, and 11, finding the crime involved a high degree of callousness, that defendant took advantage of a position of trust or confidence (specifically, his position as D. S.’s stepfather) and that he induced D. S. to “participate in the various acts by telling him ‘That’s how fathers and sons express their love for one another,’” and finding the victim was particularly vulnerable. The court also noted, “[t]he position of trust would be enough of an aggravating factor, in my view, to outweigh the mitigation of no prior record.”
Defendant contends that under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], these aggravating factors had to have been proven to the jury beyond a reasonable doubt.
“Denial of the right to jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman [v. California (1967)] 386 U.S. 18, [24,] 17 L.Ed.2d 705, [710-711]. [Citations.] Under this standard, ‘we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury's verdict would have authorized the upper term sentence.’ ([People v. ]Sandoval[ (2007) ]41 Cal.4th[ 825,] 838.) If we conclude, ‘beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.’ (Id. at p. 839, italics added.)” (People v. Curry (2007) 158 Cal.App.4th 766, 794.) The record in this case supports such a finding.
A single aggravating fact can support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the court specifically indicated it would have used this single factor to impose the upper term. The evidence in this case was undisputed that defendant was D. S.’s stepfather and was entrusted with D. S.’s care. The record is replete with evidence that defendant used his position as D. S.’s stepfather to facilitate the molestations. He repeatedly told D. S. this was how fathers and sons expressed their love, and D. S. participated in the molestation because it was what his stepfather told him to do. As a matter of law and common sense, defendant was placed in a position of trust and confidence regarding D. S. (See People v. Clark (1992) 12 Cal.App.4th 663, 666.) No reasonable jury could have found otherwise.
“Based on this record, we conclude a jury would have found the cited aggravating circumstances true beyond a reasonable doubt had they been given the opportunity. Accordingly, any []Cunningham error was harmless.” (Curry, supra, 158 Cal.App.4th at p. 794.)
Full Consecutive Terms - Counts 10, 11 and 26
The court sentenced defendant to full consecutive terms on counts 10 and 11, based on the mandate of section 667.6, subdivision (d). Under section 667.6, subdivision (d), “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.” Defendant contends that under Cunningham this finding of separate victims or separate occasions must be found by a jury beyond a reasonable doubt.
As with the argument above, even if we were to hold Cunningham required the jury to make the section 667.6, subdivision (d), finding, any error would be harmless. D. S. testified he and defendant engaged in acts of sodomy three or four times when he was 16 or 17 years old. D. S. described two specific incidents, one occurring in a vacant apartment which defendant managed and one occurring in the living room of their home. D. S. described a number of incidents in which various sexual acts were committed, sometimes masturbation, oral copulation or anal sex. D. S. described occasions in which multiple acts of masturbation or oral copulation occurred. D. S. did not describe any single occasion on which more than one act of anal sex occurred. Defendant denied all instances of any sexual contact between himself and D. S. As proven by the sodomy convictions, the jury believed D. S. Thus, the evidence proved defendant committed the charged offenses against D. S. on separate occasions. Based on the jury’s two sodomy convictions, we are convinced beyond a reasonable doubt that the jury would have found that the offenses occurred on separate occasions under section 667.6, subdivision (d). (See People v. Retanan (2007) 154 Cal.App.4th 1219, 1230.)
As to count 26 (dissuading a witness in violation of section 136.1), the court deemed this count a subordinate term and relying on section 1170.15, sentenced defendant to the full middle term, rather than one-third the middle term. Defendant again contends that the applicability of section 1170.15 should have been determined by a jury. In this case, the jury did, in fact, make all the findings necessary to impose a full consecutive term under section 1170.15.
As relevant, section 1170.15 provides: “Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against the victim of . . . the first felony. . ., the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed.”
Here, the jury found defendant guilty of seven felonies in addition to finding him guilty of violating section 136.1 in count 26. D. S. was the victim of each of those felonies, including section 136.1. Thus, as to each fact necessary for the imposition of a full middle term sentence on count 26, the jury did find each predicate fact true beyond a reasonable doubt.
Counts 16 and 19
Lastly, the court sentenced defendant to consecutive terms of eight months (one-third the middle term) on counts 16 and 19. Defendant contends the imposition of these consecutive sentences violated his Sixth Amendment rights. However, jury findings are not required to support ordinary discretionary consecutive terms. (People v. Black (2007) 41 Cal.4th 799, 823.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J., RAYE , J.
Lewczyk assessed D. S. as sensitive, charming, and a bit manipulative. He exhibited posttraumatic stress disorder and possible bipolar disorder, but was not delusional. He also appeared sexually promiscuous, which could be expected in a sexual abuse victim.
In 1988, because she told her mother that she was “having memories,” she took her mother’s advice to see a therapist, one Martin Quisenberry. Except for the rape at age seven, she first remembered these incidents during her therapy with Quisenberry or later in a group for abused women. She first reported the two earliest memories to the police, along with one of an incident involving her grandfather, in 1989.
She spoke to Davis Police Detective Dunn in January 2003. She told him about some but not all of what she testified to at trial. She never met D. S. until this trial and did not even know of his existence until Detective Dunn told her about him. (Similarly, D. S. testified that he had never met M. H. or W. R. before the trial.)
When he was around 17 or 18, W. R. heard from his mother about a “family cult.” When he was 21, he bought a gun to protect himself from defendant. His side of the family broke off contact with defendant’s side around 1989. In 2001, he received a letter from defendant which he took as a threat to himself and his mother.
“‘Sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following:
“Any conduct made criminal by . . . section 262(a)(2), which is forcible rape; 288a(c)(2), which is forcible oral copulation, and 286(a)(2) which is forcible sodomy. The elements of this crime are set forth elsewhere in this instruction.
“If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses.
“If you find that the defendant has this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused of [sic].
“However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense or offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime or crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime or crimes.
“Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”