Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS050555
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
After a jury trial, defendant Thomas Lee Horton was convicted of 40 felony and misdemeanor counts involving eight minor victims, including 10 felony counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)), two felony counts of criminal threats (§ 422), 13 counts of misdemeanor child molestation (§ 647.6, subd. (a)), 13 counts of misdemeanor indecent exposure (§ 314), and two counts of misdemeanor dissuading a witness (§ 136.1, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed consecutive sentences of 15 years to life on the 10 section 288, subdivision (a) counts and concurrent terms of two years on the two section 422 counts, for an aggregate sentence of 150 years to life in prison. The trial court also sentenced defendant to one year in jail on each of misdemeanor convictions for child molestation (§ 647.6, subd. (a)) and dissuading a witness (§ 136.1, subd. (b)(1)), plus 180 days on the misdemeanor convictions for indecent exposure (§ 314), stayed.
On appeal, defendant contends that the trial court made several reversible errors with respect to the testimony of 12-year-old victim Christina, which the court allowed her to give via two-way closed-circuit television pursuant to section 1347. Defendant claims that (1) the trial court failed to expressly find on the basis of clear and convincing evidence, as required by section 1347, subdivision (b)(2), that testimony in the presence of defendant would result in Christina suffering serious emotional distress to the extent that she would be unavailable as a witness unless closed-circuit testimony was used; (2) the trial court failed to make the finding required by section 1347, subdivision (b)(3), that the equipment available for closed-circuit television would accurately communicate Christina’s demeanor to the judge, jury, defendant, and attorneys; (3) the trial court’s failure to make all the findings required by section 1347 violated defendant’s federal due process right and does not constitute harmless error; (4) the trial court abused its discretion in allowing Christina to testify by way of closed-circuit television despite the “unmistakable warnings in the record” that she would be unable to complete her testimony; and (5) the trial court abused its discretion in denying defendant’s motion for mistrial after Christina broke down during direct examination and defendant had no opportunity to cross-examine her. Defendant also contends that the trial court made a sentencing error when the court imposed 10 consecutive sentences of 15 years to life on the section 288, subdivision (a) counts.
The People concede defendant’s claim of sentencing error, and for reasons that we will explain we find the concession appropriate. We find no merit in defendant’s remaining contentions regarding Christina’s testimony, for reasons we will also explain. Therefore, we will reverse the judgment and remand for the limited purpose of resentencing.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information filed April 13, 2005, charged defendant with 48 counts arising from allegations of sex offenses involving eight minor victims. The counts included one felony count of continuous sexual abuse of a child under the age of 14, Jane Doe 3 (§ 288.5, subd. (a); count 1); six felony counts of lewd acts upon a child, Jane Doe 3 (§ 288, subd. (a); counts 2-7); five felony counts of lewd acts upon a child, Jane Doe 1 (§ 288, subd. (a); counts 8-12); three misdemeanor counts of dissuading a witness, Jane Doe 3 (§ 136.1, subd. (b)(1); counts 13-15); two misdemeanor counts of dissuading a witness, Jane Doe 1 (§ 136.1, subd. (b)(1); counts 16, 17); three felony counts of threats of violence to Jane Doe 3 (§ 422; counts 18-20); two felony counts of threats of violence to Jane Doe 1 (§ 422; counts 21, 22); four counts of misdemeanor child molestation involving Jane Doe 3 (§ 647.6, subd. (a); counts 23, 25, 27, 29); two counts of misdemeanor child molestation involving Jane Doe 2 (§ 647.6, subd. (a); counts 31, 33); two counts of misdemeanor child molestation involving Jane Doe 1 (§ 647.6, subd. (a); counts 35, 37); one count of misdemeanor child molestation involving Jane Doe 4 (§ 647.6, subd. (a); count 39); one count of misdemeanor child molestation involving John Doe 5 (§ 647.6, subd. (a); count 41); one count of misdemeanor child molestation involving John Doe 6 (§ 647.6, subd. (a); count 43); one count of misdemeanor child molestation involving John Doe 7 (§ 647.6, subd. (a); count 45); one count of misdemeanor child molestation involving Jane Doe 8 (§ 647.6, subd. (a); count 47); and 13 counts of indecent exposure (§ 314; counts 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48). The information also alleged, as to counts 1 through 12, that defendant came within the sentencing provisions of section 667.61, subdivision (e)(5).
B. The Proceedings Regarding Christina’s Testimony
1. The Motion in Limine
Before trial, the People filed a motion in limine requesting leave to present the testimony of Christina (identified in the information as Jane Doe 3) by way of closed-circuit television pursuant to section 1347, on the ground that she had exhibited extreme fear and anxiety at the prospect of testifying in the presence of defendant. Defendant opposed the motion. Jury trial commenced on March 13, 2006. On the first day of trial, the trial court heard argument regarding the People’s motion in limine.
The prosecutor explained that Christina had been a next door neighbor of defendant; that she was the “child who would introduce other children into the household of [defendant] ostensibly for cleaning;” and that she had been threatened by defendant. The prosecutor also advised the trial court that he had recently met with Christina and her grandmother. During that meeting, he was informed that Christina was unable to be in the same room as defendant and would testify only if she could do so by way of closed-circuit television. The prosecutor also stated that the equipment for two-way closed-circuit television had been set up. After listening to argument, the trial court determined that a hearing was necessary before the court could decide whether closed-circuit television testimony by Christina would be permitted under section 1347.
2. The Hearing Regarding Closed-Circuit Television Testimony
The hearing on the People’s motion in limine was held on the second day of trial, March 14, 2006, outside the presence of the jury. The prosecutor advised the trial court that under section 1347 the court was required to determine Christina’s age and whether she was incapable of testifying in the presence of defendant due to her emotional state. The first witness examined was Christina’s grandmother. She stated that Christina, age 12, had lived with her since the age of three. According to her grandmother, Christina was very angry after her interviews with law enforcement and had nightmares and wet the bed. Christina had also thrown up while she was waiting with her grandmother in the courthouse hallway prior to the hearing. Christina’s grandmother did not think that Christina was capable of testifying in the courtroom with defendant present, asserting that “[s]he will not be able to speak. She will crumble.”
Christina was then questioned by the trial court in chambers in the presence of the attorneys, the court clerk, and Christina’s support person. The trial court made a few conversational inquiries about Christina’s age, school, and favorite classes, and then introduced the attorneys. The trial court also told Christina that she would not be hurt in the courtroom. The following colloquy then occurred.
“[THE COURT]: So now thinking, knowing that and thinking about it, do you think that you could go into the courtroom and testify?
“[CHRISTINA]: (SHAKES HEAD.)
“[THE COURT]: And the reason is?
“[CHRISTINA]: Well, when I was over there, [defendant] told me that he would hurt my family if I told on him. And he showed me his gun and he pointed at me because he said he would use it if he had to.
“[THE COURT]: You know that can’t happen, right? I mean it can’t happen. It is something that he said to you. I understand that. It’s something that you remember, but it’s not the kind of think that’s likely to occur. [¶] Do you understand that?
“[CHRISTINA]: Yeah. I just, I’d be too nervous. I wouldn’t be able to do anything.”
The trial court then questioned Christina about her contacts with defendant. Christina said that defendant had threatened her because she did not want to touch him or do the things he made her do. She recalled that during the past year, defendant had made her tie a rope to his private parts, massage his private parts, hit him with a ruler, and “draw on his butt.” When Christina told defendant that she wanted to go home, he would not let her go until she promised that she would not “tell on him.” The following colloquy then occurred:
“[THE COURT]: [I] can tell you’re quite upset at the idea of having to be in the courtroom in [defendant’s] presence. I guess I’m interested in knowing whether or not you are upset at other times besides having to come to court when you think about this?
“[CHRISTINA]: I don’t like to think about it. Whenever anyone brings it up, I just try to pass it on because I don’t like to think about it.
“[THE COURT]: Okay. Do you ever get upset about the thought of it?
“[CHRISTINA]: Yes. I don’t like it. I just think he is gone, I don’t need to deal with this any more. I didn’t even want to be here, but I know I had to because I already said yes so. But I want him gone. But it’s just too scary to be in the same room with him because it would just make me freeze. I won’t be able to do nothing. I probably get sick. I don’t know. I just wouldn’t be able to do anything.
“[THE COURT]: Did you get sick today?
“[CHRISTINA]; My stomach hurts, and I’ve been wanting to throw up all day but I can’t.
“[THE COURT]: Is it because of me?
“[CHRISTINA]: No. Even last night, I was just feeling like I had to throw up, but I - - it won’t. I can’t throw up. I just can’t.
Christina also told the trial court that she had difficulty sleeping because she had nightmares in which nothing happened to defendant and he came back and hurt her family. After a brief recess, the trial court reconvened the hearing in open court outside the presence of the jury and announced the court’s findings.
3. The Trial Court’s Findings and Orders
The trial court’s findings, announced March 14, 2006, were as follows: “The minor’s testimony will involve a recitation of the facts of an alleged sexual offense committed on or with the minor. [¶] The impact on the minor clearly shows that testimony in the courtroom would cause her to be unavailable, for all intents and purposes. She would be unavailable. She would be unable to communicate in any reasonable fashion whatsoever, unless she is permitted to do so by closed-circuit testimony. [¶] There isn’t any question in the Court’s assessment that testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress, so that the child would be unavailable as a witness. [¶] And it is the Court’s considered opinion that the problem is due to only one reason or one primary reason; and that is, the presence of the defendant and not simply the having to come to court and testifying. She’s emotional about it, but she has nightmares that keep her up, believing that nothing will happen as a result of this and that the threats that she says occurred will come true, which is a threat to her life and her family’s life. [¶] And the Court does find that the defendant threatened serious bodily injury to the child or the child’s family. And the child’s family, actually, in this case.”
The court then ordered as follows: “So those findings having been made, the Court will order that the testimony of Christina be conducted by way of two-way closed-circuit television.” The trial court further ordered that “a complete record of the examination of the minor, including the images and voices of all persons who in any way participate in the examination, be made and preserved on videotape, in addition to being stenographically recorded. And the videotape shall be transmitted to the clerk of the court in which the action is pending, and shall be made available for viewing to the prosecuting attorney or the defendant and his attorney during ordinary business hours.”
C. Trial Proceedings
Trial testimony began on March 14, 2006. A brief summary of the testimony of each witness follows.
Testimony of Officer Thorson
Clarence Thorson is the police officer for the City of Marina who investigated the allegations against defendant. When the investigation began, Officer Thorson was aware of three complaining witnesses, including Beth (Jane Doe 1), her sister T. (Jane Doe 2), and Christina (Jane Doe 3). He ultimately determined that there were eight complaining witnesses. The additional complaining witnesses included Amanda (Jane Doe 4), Katelyn (Jane Doe 5), her brothers C. (John Doe 6) and K. (John Doe 7), and Michelle (Jane Doe 8).
After Officer Thorson interviewed the eight minors, he obtained a search warrant for defendant’s apartment and an arrest warrant for defendant. When Officer Thorson executed the search warrant, he knocked on the front door. When there was no response but Officer Thorson heard rustling inside, he told another officer to hit the door with a ram. After the door opened, Officer Thorson saw defendant standing at the bottom of the stairs completely naked. Officer Thorson took a number of photographs depicting various parts of defendant’s apartment and also drew two diagrams of the apartment in the course of executing the search warrant. The photographs and the diagrams were introduced into evidence.
Testimony of Katelyn (Jane Doe 5)
Katelyn is in the sixth grade. Defendant was her next door neighbor. Katelyn and a friend would knock on neighbors’ doors and ask if they needed any help. When she knocked on defendant’s door, he had her come in and clean his apartment. One of the things she cleaned was defendant’s china cabinet. She also picked up “dog poop” in the backyard. Defendant paid Katelyn $5, $10, or $20 for cleaning. Defendant also invited her brothers K., age 17, and C., age 14, to his apartment.
An incident occurred in defendant’s apartment one day when Katelyn was in the fifth grade. Her brothers were present and Katelyn was washing defendant’s china cabinet. She saw defendant lying on his back on the living room floor while wearing a robe. Defendant asked them if it would be okay if he took off the robe. Defendant then lay on the floor naked with a towel covering his eyes or forehead and masturbated. Katelyn recalled this happened twice.
Testimony of C. (John Doe 6)
C., age 14, is the brother of Katelyn and K.. When C. worked for defendant, he cleaned defendant’s china cabinet and cleaned up “bird poop.” An incident occurred that made C., then age 11 or 12, uncomfortable when he was cleaning defendant’s apartment. Defendant took off his bathrobe, lay on the living room floor and started masturbating in front of C. and his brother and sister. C. cleaned defendant’s apartment more than 30 times and that was the only time an uncomfortable incident occurred. Defendant usually paid C. $10 for cleaning. On the day C. saw defendant masturbating, defendant paid him, his brother and his sister $50 each.
Testimony of K. (John Doe 7)
K. is the 17-year-old brother of C. and Katelyn. K. went to defendant’s apartment to clean more than 10 times. He would clean defendant’s barbecue, china cabinet, and bird cages. One day when K., C. and Katelyn were cleaning the china cabinet, defendant took off his robe, lay on the living room floor, and told them not to look. However, Katelyn asked K. to look at what defendant was doing, and he saw that defendant was massaging his penis and had a towel or rag over his eyes. While defendant usually paid K. $10 for cleaning, on the day K. saw defendant masturbating he was paid $50. K. admitted that he has a juvenile criminal record.
Testimony of Amanda (Jane Doe 4)
Amanda, age 11, is a friend of Katelyn. She met defendant when she and Katelyn went to clean his house. Something happened there that made Amanda uncomfortable. Wherever she and Katelyn went in the house, defendant’s robe was open and he was positioned so that Amanda could see his penis. Before they left, defendant told them to come pet his dog. The dog was on defendant’s lap and they could see defendant’s private parts while they were petting the dog. Amanda did not see defendant touching himself. Defendant paid each of them $10 for cleaning.
Testimony of Tracy
Tracy is the mother of Beth (Jane Doe 1). In December 2005, Tracy called the police because she had discovered, through a telephone call to Christina’s grandmother, that Beth and Christina were at a neighbor’s house instead of Christina’s house, where Beth was supposed to spend the night. When Tracy called again, she spoke with Beth, who was crying and upset. Tracy then went to Christina’s home with the police and retrieved Beth. While they were in the car, Beth was scared. She screamed and said, “[N]ow he’s going to kill me.” Tracy asked Beth who was going to kill her, and Beth said, “[Defendant].” Tracy then asked Beth how he was going to kill her and Beth screamed, “[H]e has guns.” Beth also told Tracy that defendant walked around her with no clothes on and that he had hired her to clean his house.
Testimony of Beth (Jane Doe 1)
Beth is 13 years old. She and Christina used to be friends. She met defendant when she went with Christina to clean his house. It was Christina’s idea. Christina wanted money and she did not want to go to defendant’s house alone. Beth and Christina went to defendant’s house about five times and were paid by defendant each time. The second time that Beth went to defendant’s house, she observed that he was naked. Beth also saw defendant masturbating in the living room. Christina was in the room when defendant was masturbating.
During their fourth visit to defendant’s house, Beth and Christina went upstairs to get a vacuum cleaner. While she was upstairs, Beth saw defendant masturbating in his room. He was lying on his back while wearing a mask and headphones. Christina was present when Beth saw defendant masturbating in his room. More things happened on the fourth visit that made Beth uncomfortable. Defendant came downstairs and asked Beth and Christina to tie rubber bands around his penis. Beth put on one or two rubber bands and Christina put on more. Defendant also asked them to walk him up and down the stairs while pulling a rope with two leads that he had attached to his penis. When they led defendant up and down the stairs, he was crawling. Defendant also had Beth and Christina hit him “on his butt” with a back scratcher. Beth also spanked defendant with a ruler or yardstick. Additionally, defendant had Beth and Christina draw “on his butt” with felt-tip markers and then wash the ink off with a sponge.
Until her mother found out about it, Beth did not tell anyone what had happened at defendant’s house because she was scared. Defendant had threatened to kill them and she had seen guns in his house.
Testimony of T. (Jane Doe 2)
T. is Beth’s 12-year-old sister. T.’s friend Christina brought her to defendant’s house. T. went four or five times, always with Christina. Defendant paid her $20 or $25 for cleaning. On the first visit, she cleaned little deer sculptures. Nothing happened on that visit that made her uncomfortable.
However, on T.’s second visit she saw defendant masturbating in his bedroom while wearing a mask and an open robe. She went to defendant’s bedroom because Christina had suggested that they go upstairs to ask defendant what to clean next. Later that same day, defendant came downstairs. He put a towel on the floor, then lay down on his back and masturbated until sperm came out. Christina was present at that time and also when defendant was masturbating in his bedroom. On all but the first visit to defendant’s house, T. saw defendant sitting outside on the porch with his robe open, showing his penis.
Testimony of Michelle (Jane Doe 8)
Michelle is in the seventh grade. Christina, who is her friend from school, introduced her to defendant. Michelle agreed to clean defendant’s house. She went there four times with Christina and defendant paid them each time. On Michelle’s first visit, she felt uncomfortable because defendant was wearing a robe and moved his leg so that she could see his penis. Michelle also became uncomfortable on her third visit, when defendant asked her and Christina to clean the mirrors in the upstairs bathroom. When they went upstairs, Christina paused at the door to defendant’s room. Michelle went to see what Christina was looking at and saw defendant masturbating while wearing only a black eye mask.
Testimony of Christina (Jane Doe 3)
On March 15, 2006, the trial court described the closed-circuit television procedure that would be used for Christina’s testimony, as follows: “Bill McBride, the two-way closed circuit TV technician, is present. [¶] As far as the closed-circuit set up is concerned . . . we would have a view in chambers. The view would be of counsel’s table, essentially showing both attorneys and the defendant. And from the courtroom, the view would be of the witness and support person framed together. The support person being directly beside and behind.” The trial court and the prosecutor also discussed the procedure for displaying Powerpoint photographs to the jury and the witness, and asked defense counsel whether there was any objection. Defense counsel did not object. Further, defense counsel stated that there was no objection to the closed-circuit television process that had been described, noting that it seemed to “be in compliance with the statute.”
However, the trial court noted that the prosecutor had advised the court that Christina was “adamantly refusing” to come to court. The prosecutor then explained that he had met with Christina that morning and she had insisted that she could not testify, and that she had been crying, sobbing and threatening to run away. Christina’s grandmother told the prosecutor that Christina had been unable to sleep the night before and that she had vomited during the evening.
The trial court then spoke to Christina in chambers in the presence of counsel, Christina’s grandmother, her support person, and the court reporter. The trial court explained the closed-circuit television procedure to Christina and the following colloquy took place.
“[THE COURT]: You would hear everything that we say and we would hear everything you say, and that’s how the testimony would be given.
“[CHRISTINA]: I can’t do it.
“[THE COURT]: Okay. I suppose the whole idea here is that you are a witness who is having a difficult time, but still you’re a subpoenaed witness that is told to come to court and tell what happened, just like every other witness that is subpoenaed to come to court. [¶] It’s important that you do your duty as a witness and say what happened. [¶] Do you understand that?
“[CHRISTINA]: I understand, but I can’t do it.”
The trial court then informed Christina that she would not have to make a decision about testifying right away. The trial court asked her to think about it and return to court the next afternoon.
The next day, March 16, 2006, Christina returned and the trial court inquired as to whether she would testify, as indicated in the following colloquy:
“[THE COURT]: Okay. You know the question?
“[CHRISTINA]: Yes, I do.
“[THE COURT]: What’s the answer?
“[CHRISTINA]: No.
“[THE COURT]: Just can’t do it?
“[CHRISTINA]: No, I can’t.
“[THE COURT]: If I told you had to do it, would you do it?
“[CHRISTINA]: No.
“[THE COURT]: No? The reason is?
“[CHRISTINA]: I just can’t. No specific reason, I just can’t. [¶] . . . [¶]
“[THE COURT]: You’re afraid of something?
“[CHRISTINA]: No. I just can’t.
“[THE COURT]: Is there anything I can do to get you to testify?
“[CHRISTINA]: Not really.”
Thereafter, the prosecutor asked Christina to consider attempting to testify and briefly described the nature of the questions that he and defense counsel would ask. Christina agreed to think about it. After Christina and her support person stepped out of chambers, the trial court discussed the situation with counsel. Defense counsel stated that “my concern is her getting halfway through direct, collapsing, and me not crossing.” Christina then returned to chambers and the trial court asked her a few questions about her name, school, grade, etc., in preparation for testifying. However, Christina remained reluctant to testify, as indicated in the following colloquy:
“[THE COURT]: How hard is it answering questions like that?
“[CHRISTINA]: Not very.
“[THE COURT]: So could you continue to do that?
“[CHRISTINA]: No, I can’t.
“[THE COURT]: You sure?
“[CHRISTINA]: Yes.
“THE COURT]: If I – I’m starting to think that you could do it if I told you to do it.
“[CHRISTINA]: I wouldn’t.
“[THE COURT]: Can you try?
“[CHRISTINA]; No.
“[THE COURT]: All right. I am going to try a little bit here. Christina, I’m going to have [the prosecutor] ask you some questions, okay?
“[CHRISTINA]: Fine.”
A mock direct examination then took place. When questioned by the prosecutor, Christina stated that she knew defendant because he was her neighbor and she went to his apartment to clean. She explained that “I thought I was going over to clean, but he had something else in mind.” The prosecutor asked, “What did he have in mind?” Christina responded, “I don’t want to do this.” The trial court then told Christina to just answer the question. The examination continued and Christina stated that she had seen defendant naked in his house and she had also seen him masturbate.
Thereafter, the trial court explained the closed-circuit television procedure to the jurors and proceeded with Christina’s sworn testimony via two-way closed circuit television. Christina, age 12, testified that she has lived with her grandmother since she was a baby. She met defendant when she was six years old because he was her grandfather’s friend. Later defendant paid her $15 to $20 for cleaning his house. The first thing defendant did that made her uncomfortable was taking off his clothes. She was probably 11 years old at that time. Christina told defendant to put his clothes back on, but defendant said he could do what he wanted in his own house. Defendant was also in the habit of walking around naked while Christina cleaned his house. He also hugged her to say goodbye, which made her uncomfortable.
The prosecutor then asked Christina if defendant had done anything else that made her uncomfortable. Christina responded by asking for a break. The trial court advised Christina that the court would give her a break “in just a second.” The prosecutor then showed Christina a picture of a pillow hanging on a rack made of string and asked, “Is there anything significant about that string?” Christina said yes, then said, “I told you I needed a break.” She refused to answer the question when the trial court asked her to do so before taking a break. During the break, Officer Anderson spoke with Christina. The following colloquy then took place before Christina’s testimony was terminated.
“[THE COURT]: And I know that [conversation with Officer Anderson] made you feel a little bit better. And then I came and told you, asked you if you could continue, and what did you say to that?
“[CHRISTINA]: No, I can’t.
“[THE COURT]: That’s correct. So will you
“[CHRISTINA]: No.
“[THE COURT]: -- answer any more questions?
“[CHRISTINA]: No.
“[THE COURT]: And for the record, if it wasn’t captured on camera, Christina is very upset. And where she was not flushed before and relaxed, this shows a dramatic change in her demeanor. She is flushed now. She was crying. And I don’t see how we could proceed any further with her. [¶] That’s the end of it. Okay?”
Motion for Mistrial
After Christina was excused, defense counsel moved for a mistrial. Counsel stated, “Well, I imagine that the Court will strike Christina’s testimony that was elicited on direct from the record and order the jury to disregard what they heard. [¶] However, I am obliged at this point to make a motion for mistrial. I believe that the bell cannot be unrung. They had an opportunity for 10 or 15 minutes to watch that witness, to [elicit] some damaging testimony against the defendant. And now they’re going to be told to simply disregard that. I don’t believe that can be done. [¶] So I am going to ask the Court to order a mistrial at this time.”
The prosecutor opposed the motion for mistrial on the ground that Christina’s testimony was not sufficiently prejudicial. The trial court ordered Christina’s testimony stricken from the record and denied the mistrial, finding that “in the overall context of the evidence that’s been presented in this case, the Court doesn’t find that it’s sufficiently prejudicial to warrant a mistrial . . . .” The court then instructed the jury to disregard Christina’s testimony and to evaluate the case without any reference to it.
Testimony of Christina’s Grandmother
The next witness to testify was Christina’s grandmother. Defendant was their neighbor and a friend of her husband. He paid her husband to perform household chores and to look after defendant’s house when he was away. Defendant also loaned her husband money.
Christina’s grandmother was aware that Christina had been going into defendant’s house for more than a year before the police came in December 2004. Prior to December 2004, Christina’s personality had changed from being open and loving to being very angry. She also had nightmares and cried at night. Christina threw up after speaking with the prosecutor on the telephone recently. When they came to court the day before, Christina was in a panic and threw up in the hallway while waiting to see the judge. Christina also became very upset during a previous interview with the prosecutor.
Testimony of Katelyn’s Mother
The mother of Katelyn, C. and K. testified that they lived in the same apartment complex as defendant. She considered him a friend. However, on one occasion defendant suggested that she could earn some money by putting a string around his testicles and spanking him, which she declined to do. Defendant also loaned her money.
Jury Verdict
Prior to the jury’s verdict, the People moved to dismiss counts 1, 2, 13, 14, 17, 18, 19 and 22 in the furtherance of justice. The trial court granted the motion. On March 17, 2006, the jurors returned a verdict of guilty on all remaining counts and found the sentencing allegations pursuant to section 667.61, subd.(e)(5) to be true.
D. Sentencing
On May 10, 2006, the trial court imposed an aggregate sentence of 150 years to life, structured as follows: consecutive terms of 15 years to life on each of the 10 counts of lewd act on a child (§ 288, subd. (a); victim Jane Doe 3 (Christina) -- counts 3, 4, 5, 6, 7; and victim Jane Doe 1 (Beth) -- counts 8, 9, 10, 11, 12); and concurrent terms of two years on two counts of threats of violence (§ 422; victim Jane Doe 3 (Christina) – count 20; and victim Jane Doe 2 (Beth) -- count 21). The trial court also sentenced defendant to one year in jail on each of the misdemeanor dissuading a witness counts (§ 136.1, subd. (b)(1)) and the misdemeanor child molestation counts (§ 647.6, subd. (a); counts 15, 16, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47), and 180 days in jail on each of the misdemeanor indecent exposure counts (§ 314; counts 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48), stayed.
Thereafter, defendant filed a timely notice of appeal. On this court’s motion, the two videotapes of Christina’s closed-circuit testimony on March 16, 2006, were ordered transmitted to this court under seal and made available for viewing by defendant’s counsel only.
III. DISCUSSION
Defendant’s first four arguments on appeal attack the trial court’s decision to allow Christina to testify via two-way closed-circuit television, pursuant to section 1347, and the court’s statement of reasons for its decision. We will therefore begin our analysis with a review of the relevant provisions of section 1347.
A. Section 1347
Enacted in 1985, section 1347 authorizes the trial court to allow a child witness to testify by way of closed-circuit television under certain circumstances. (In re Amber S. (1993) 15 Cal.App.4th 1260, 1263-1264 [addressing minors’ closed-circuit television testimony in a juvenile dependency case].)
The trial court exercises its discretion in determining whether to allow closed circuit television testimony by a child witness, as set forth in subdivision (a) of section 1347: “It is the intent of the Legislature in enacting this section to provide the court with discretion to employ alternative court procedures to protect the rights of a child witness, the rights of the defendant, and the integrity of the judicial process. In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court's truth finding function. This discretion is intended to be used selectively when the facts and circumstances in the individual case present compelling evidence of the need to use these alternative procedures.” (§ 1347, subd. (a).) In accordance with this statutory language, the applicable standard of review for the trial court’s order allowing a child witness to testify by way of closed-circuit television is abuse of discretion.
Subdivision (b) of section 1347 provides that closed-circuit testimony by a child witness may be allowed where the trial court finds that certain facts and circumstances exist. In pertinent part, subdivision (b) of section 1347 provides, “Notwithstanding any other law, the court in any criminal proceeding . . . may order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court makes all of the following findings: [¶] (1) The minor’s testimony will involve a recitation of the facts of any of the following: [¶] (A) An alleged sexual offense committed on or with the minor. [¶] . . . [¶] (2) The impact on the minor of one or more of the factors enumerated in sub paragraphs (A) to (E), inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used. [¶] (A) Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness. [¶] . . . [¶] (C) The defendant threatened serious bodily injury to the child or the child’s family . . . to prevent the minor from reporting the alleged sexual offense, or from assisting in criminal prosecution. [¶] . . . [¶] In making the determination required by this section, the court shall consider the age of the minor, the relationship between the minor and the defendant or defendants, any handicap or disability of the minor, and the nature of the acts charged. The minor’s refusal to testify shall not alone constitute sufficient evidence that the special procedure described in this section is necessary to obtain the minor’s testimony. (3) The equipment available for use of closed-circuit television would accurately communicate the image and demeanor of the minor to the judge, jury, defendant or defendants, and attorneys.”
The parties have not brought to our attention any decisions construing section 1347 in the context of a criminal proceeding. However, the United States Supreme Court in Maryland v. Craig (1990) 497 U.S. 836, 840, was called upon to determine “whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant’s physical presence, by one-way closed circuit television.” The Supreme Court found that “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” (Id. at p. 853.)
The Supreme Court also ruled in Maryland v. Craig, supra, 497 U.S. 836 that an adequate showing of necessity must be made on a case-by-case basis: “The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify.” (Id. at p. 855.) The court concluded that the Confrontation Clause did not bar use of a closed-circuit television procedure that “despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” (Id. at p. 857.)
In the present case, defendant does not challenge the constitutionality of section 1347. However, defendant contends that the trial court erred by failing to comply with the requirements of section 1347 in several respects. We will first address defendant’s challenge to the trial court’s decision to permit Christina to testify by way of two-way closed-circuit television.
B. The Decision to Allow Christina’s Closed-Circuit Television Testimony
According to defendant, a trial court abuses its discretion under section 1347 when the court permits a child to testify by way of closed-circuit television despite clear indications that the witness will be unable to complete his or her testimony. Defendant does not reference any provision of section 1347 in making this argument. Instead, defendant relies upon the statements by Christina and her grandmother regarding Christina’s refusal to testify and her physical illness and emotional upset at the prospect of testifying. He asserts that it was a near certainty that Christina would break down during direct examination if forced to testify and as a result the jurors would hear testimony against him that was not subject to cross-examination. For that reason, defendant argues that the trial court’s decision to allow Christina to testify via closed-circuit television failed to consider defendant’s rights, as well as the integrity of the judicial process, and the trial court therefore abused its discretion.
As the People acknowledge, in the context of expert witness testimony it has been held that the trial court has the discretion to exclude the testimony of a witness where the court “determines in advance” that the witness will refuse to answer questions. (People v. Price (1991) 1 Cal.4th 324, 421. In Price, a gang expert refused to answer questions about the persons he had interviewed although their statements formed the basis of his opinions. The California Supreme Court determined that trial court had properly declined to admit the expert’s testimony due to the extent the expert’s refusal impaired the defendant’s right to cross-examination. (Ibid.; see also People v. Vasco (2005) 131 Cal.App.4th 137, 156.) However, the People argue that the trial court properly allowed Christina’s testimony because Christina’s refusal to testify was not consistent and the People have a strong interest in presenting relevant testimony that is otherwise unprotected by privilege.
For purposes of analysis, we assume, without deciding, that the rule set forth in Price, supra, 1 Cal.4th 324, 321, is applicable to child witnesses and therefore the trial court may exclude the testimony of a child witness where the court determines in advance that the child witness will refuse to answer questions. However, we are also mindful that the exclusion of witness testimony “necessarily may affect the factfinding process and therefore, ‘. . . the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.’ [Citation.]” (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757 [addressing the exclusion of witness testimony as a sanction for failure to identify witnesses in advance of trial], quoting Taylor v. Illinois (1988) 484 U.S. 400, 415.)
Under the circumstances of this case, we find that the trial court did not err in allowing Christina to testify despite her obvious reluctance to do so. Although Christina repeatedly advised the court that she did not want to testify, the record reflects that Christina was able, while in chambers, to answer questions about defendant’s sexual misconduct on two occasions prior to trial. As the People note, on March 15, 2006, the trial court questioned Christina in chambers in an effort to persuade her to testify. When the trial court asked Christina about her contacts with defendant, Christina said defendant threatened her because she did not want to touch him or do the things he made her do. She recounted that defendant had made her tie a rope to his private parts, massage his private parts, hit him with a ruler, and “draw on his butt.” Subsequently, on March 16, 2006, Christina returned to court and answered questions posed during a mock direct examination. Christina stated, “I thought I was going over to clean, but he had something else in mind.” The prosecutor asked, “What did he have in mind?” Christina responded, “I don’t want to do this.” The trial court then asked Christina to answer the question. When the examination continued, Christina stated that she had seen defendant naked in his house and she had also seen him masturbate.
Accordingly, we determine that the trial court, having observed two demonstrations in chambers of Christina’s capacity to answer questions about defendant’s alleged sexual misconduct, did not abuse its discretion in permitting Christina’s closed-circuit television testimony to go forward despite defense counsel’s stated concern that she would break down during direct examination.
C. The Trial Court’s Statement of Reasons for its Decision
Defendant also contends that the trial court committed reversible error when the court failed to comply with the section 1347 requirements for a statement of reasons. According to defendant, the trial court failed to expressly state on the record, as required by section 1347, subd. (b)(2), that the court had found on the basis of clear and convincing evidence that the testimony in the presence of the defendant would cause the child serious emotional distress such that the child would be unavailable as a witness unless the child was allowed to testify by way of closed-circuit television. Additionally, defendant claims that the trial court failed to expressly state on the record, as required by section 1347, subdivision (b)(3), that the equipment available “for use of closed-circuit television” would accurately communicate the image and demeanor of the minor to the judge, jury, defendant and attorneys.
With regard to the required statement of reasons, section 1347, subdivision (e)(1), generally provides, “When the court orders the testimony of a minor to be taken in another place outside of the courtroom, the court shall do all of the following: [¶] Make a brief statement on the record, outside of the presence of the jury, of the reasons in support of its order. While the statement need not include traditional findings of fact, the reasons shall be set forth with sufficient specificity to permit meaningful review and to demonstrate that discretion was exercised in a careful, reasonable, and equitable manner.”
We believe that the trial court’s stated reasons met the statutory standard with respect to the finding required by section 1347, subdivision (b)(2), that “[t]he impact on the minor of one or more of the factors enumerated in subparagraphs (A) to (E), inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used.” The trial court stated, “There isn’t any question in the Court’s assessment that testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress, so that the child would be unavailable as a witness. [¶] And it is the Court’s considered opinion that the problem is due to only one reason or one primary reason; and that is, the presence of the defendant and not simply the having to come to court and testifying. She’s emotional about it, but she has nightmares that keep her up, believing that nothing will happen as a result of this and that the threats that she says occurred will come true, which is a threat to her life and her family’s life. [¶] And the Court does find that the defendant threatened serious bodily injury to the child or the child’s family. And the child’s family, actually, in this case.”
Contrary to defendant’s assertion, section 1347, subdivision (e)(1), does not require the trial court to expressly state that the court has found by “clear and convincing evidence” that the testimony in the presence of the defendant would cause the child serious emotional distress such that the child would be unavailable as a witness unless the child was allowed to testify by way of closed-circuit television. Section 1347, subdivision (e)(1), only requires that the trial court’s statement of reasons be “set forth with sufficient specificity to permit meaningful review and to demonstrate that discretion was exercised in a careful, reasonable, and equitable manner.” Here, the trial court’s stated reasons were more than sufficiently specific to show that the court had found by clear and convincing evidence that the emotional impact on Christina of testimony in defendant’s presence would render her unavailable as a witness if she were not allowed to testify via closed-circuit television. Therefore, we find no merit in defendant’s contention that the trial court’s statement of reasons was deficient in that respect.
As to defendant’s contention that the trial court failed to state on the record, as required by section 1347, subdivision (b)(3), that the equipment available “for use of closed-circuit television” would accurately communicate the image and demeanor of the minor to the judge, jury, defendant and attorneys, we agree that the trial court failed to make that express finding. However, we find that defendant’s failure to object to this omission in the trial court’s statement of reasons is fatal to his claim of error.
In the context of sentencing choices, it has been held that “a defendant cannot complain for the first time on appeal about the trial court’s failure to state reasons for a sentencing choice.” (People v. Bautista (1998) 63 Cal.App.4th 865, 868.) The court in Bautista observed that the claimed defect in the statement of reasons “could easily have been prevented and corrected had it been brought to the court’s attention. [Citation.]” (Ibid.) We believe the same rule is applicable to the statement of reasons required by section 1347, subdivision (e)(1). Had defendant objected to the trial court’s failure to expressly find that the closed-circuit television equipment available would accurately communicate the image and demeanor of the minor to the judge, jury, defendant and attorneys, the trial court could have easily corrected the omission.
In any event, as the People point out, the record amply demonstrates that the available equipment for two-way closed-circuit television met the statutory standard. The trial court stated in the presence of defendant, both counsel and the closed-circuit television technician that, “As far as the closed-circuit set up is concerned, describing it for the record, we would have a view in chambers. The view would be of counsel’s table, essentially showing both attorneys and the defendant. And from the courtroom, the view would be of the witness and support person framed together. The support person being directly beside and behind.”
Moreover, the record reflects that, after hearing the trial court’s description of the closed-circuit television set up, defense counsel confirmed that defendant had no objection to the available equipment and expressly stated that the closed-circuit television process described by the trial court and the prosecutor seemed to “be in compliance with the statute.”
For these reasons, we also reject defendant’s contention that the trial court’s failure to make all the findings required by section 1347 violated defendant’s federal due process right and does not constitute harmless error.
D. The Order Denying Defendant’s Motion for Mistrial
Defendant argues that the trial court abused its discretion when the court denied defendant’s motion for mistrial after Christina’s breakdown during direct examination deprived defendant of the opportunity to cross-examine her. Because he believes the impact of Christina’s testimony and appearance was devastating, defendant contends that his chances of a fair trial were irreparably damaged and the prejudice could not be cured by admonition or instruction. The People disagree, asserting that the trial court’s order striking Christina’s testimony and the admonitions to the jury to disregard it were sufficient to overcome the prejudicial impact of her testimony.
The California Supreme Court has ruled that the standard of review for an order denying a motion for mistrial is abuse of discretion. “ ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation]. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” ’ [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953; People v. Ledesma (2006) 39 Cal.4th 641, 683.) Thus, the trial court should grant a motion for mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.)
In determining whether a defendant’s chances of receiving a fair trial were irreparably damaged by the jurors hearing testimony that was later stricken, we presume that the jurors followed the trial court’s subsequent instruction not to consider the testimony for any purpose. (People v. Avila, supra, 38 Cal.4th at p. 574; see also People v. Cox, supra, 30 Cal.4th at p. 953 [prosecutor’s improper reference to witness’s polygraph examination cured by admonition].) “ ‘It is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” ’ [Citation.]” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404
In the present case, the trial court instructed the jurors, immediately after Christina’s testimony, as follows: “Ladies and gentlemen, there will be no further testimony by Christina. Her testimony is stricken from this record. And you’ll recall, I’ve already instructed you as to what that means. It simply means that you are to disregard it. To evaluate this case without any reference to that testimony.” Subsequently, the trial court further instructed the jurors, in the course of giving jury instructions, that “Th[is] Court has stricken the testimony of Christina. As with all evidence stricken by the Court, in your deliberations do not discuss or consider any aspect of her testimony stricken by the Court. The subject must not in any way affect your verdict.” During closing argument, the prosecutor also asked the jurors to disregard Christina’s testimony: “All of the findings you’ll have to make as to the victim Christina, I would ask you to make through the testimony of Beth and Christina’s grandmother. . . .”
Having examined the record carefully, we do not find the case before us to be the exceptional case where the prejudicial impact of stricken witness testimony cannot be cured by admonition or instruction. Before Christina refused to continue her testimony, she answered the following questions on direct examination regarding defendant’s alleged sexual misconduct:
“[THE PROSECUTOR]: What was it that [defendant] first did to start making you feel uncomfortable?
“[CHRISTINA]: He took off his clothes. [¶] . . . [¶]
“[THE PROSECUTOR]: And when [defendant] first became naked in front of you, did you say anything to him?
“[CHRISTINA]: Uh, yes.
“[THE PROSECUTOR]: What did you tell him?
“[CHRISTINA]: I told him he should put back on his clothes.
“[THE PROSECUTOR]: Why did you tell him that?
“[CHRISTINA]: Because I didn’t like it. [¶] . . . [¶]
“[THE PROSECUTOR]: What’s the next thing he did besides just taking off his clothes that made you uncomfortable?
“[CHRISTINA]: He would - - I don’t understand the question.
“[THE PROSECUTOR]: Okay. He would walk around naked after awhile when you cleaned the house, correct?
“[CHRISTINA]: Yes.
“[THE PROSECUTOR]: Was he in the habit of being naked when you cleaned the house?
“[CHRISTINA]: Yes. [¶] . . . [¶]
“[THE PROSECUTOR]: [W]hat is the first thing [defendant] did to touch you when he was naked?
“[CHRISTINA]: Um, he hugged me. [¶] . . . [¶]
“[THE PROSECUTOR]: Now after that, did [defendant] do anything else that made you uncomfortable?
“[CHRISTINA]: Um, I need a break.” [¶] . . .[¶]
“[THE PROSECUTOR]: Christina, do you recognize that [photograph]?
“[CHRISTINA]: Um, I think that’s a pillow.
“[THE PROSECUTOR]: Okay. What’s the pillow on?
“[CHRISTINA]: Uh, like a hanging rack on the outside of his patio.
“[THE PROSECUTOR]: What is the rack made out of?
“[CHRISTINA]: String.
“[THE PROSECUTOR]: Okay. Is there anything significant about that string?
“[CHRISTINA]: Yes.
“[THE PROSECUTOR]: What’s that, Christina?
“[CHRISTINA]: I told you I need a break.”
Before Christina testified as quoted above, the jurors had heard testimony regarding defendant’s alleged sexual misconduct from all of the other minor witnesses in the case, including Katelyn, T., C., K., Beth, Amanda, and Michelle. Thus, the jurors had been exposed to detailed evidence regarding defendant’s habit of being naked in the presence of the eight children who cleaned his apartment prior to Christina’s testimony. The jurors had also heard testimony about defendant’s use of string before Christina testified, when Beth testified that defendant had them lead him up and down stairs by a string tied to his penis. Christina’s testimony therefore added very little to the evidence regarding defendant’s alleged sexual misconduct that the jurors had already heard. Moreover, evidence regarding defendant’s alleged sexual misconduct in the presence of Christina had been presented through the earlier testimony of Beth.
Consequently, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for mistrial because we presume that the jurors followed the trial court’s admonition not to consider Christina’s testimony for any purpose.
E. Sentencing Error
Defendant’s final contention is that the trial court made a sentencing error when the court sentenced him to a consecutive sentence of 15 years to life on each of the 10 counts of lewd act on a child (§ 288, subd. (a); victim Jane Doe 3 (Christina) -- counts 3, 4, 5, 6, 7; and victim Jane Doe 1 (Beth) -- counts 8, 9, 10, 11, 12). In his supplemental opening brief, defendant asserts that under former section 667.61, subdivision (g), no more than two 15 years to life sentences may be imposed on the section 288, subdivision (a), counts because the five lewd acts involving Christina and the five lewd acts involving Beth all occurred on the same occasion. The People concede the sentencing error, and we find the concession appropriate.
Section 667.61 was amended by the Legislature, effective September 20, 2006, to state, “For any offense specified in paragraphs (1) to (7) exclusive, of subdivision c, the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions, as defined in subdivision (d) of [s]ection 667.6.” (§ 667.61, subdivision (i).) Section 667.6, subdivision (d), provides in pertinent part, “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”
At the time of the sentencing hearing held on May 10, 2006, the trial court determined that each of the lewd acts involving Christina and Beth (counts 3 through 12) constituted a separate occasion and therefore the court could impose a consecutive sentence on each of the 10 section 288, subdivision (a) counts. The trial court stated, “The choice, the basis for [the consecutive sentences] choice, is the entire scheme, the entire series of events. Each one being different from the other. Each one having its psychological impact on each of these children. Each one reflecting for most of us an unknown side of humanity. And each of these events, each of them is a scar, is a lesion that will never go away and they shouldn’t.” The trial court further noted that the section 288, subdivision (a) offenses occurred on a “[s]eparate occasion. Clearly separate in time. Separate event. A separate memory for you and them.”
We must determine whether the trial court’s analysis was correct under former section 667.61, subdivision (g), which was in effect at the time of the sentencing hearing. The California Supreme Court has instructed that “[former] section 667.61 mandates an indeterminate sentence of either 25 years (id., subd. (a)) or 15 years to life [id., subd. (b)) when a defendant is convicted of certain forcible sex offenses committed under specific aggravating circumstances. [Former section] 667.61 provides, in subdivision (g), as follows: ‘The term specified . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified . . . shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed under any other law, including [former] Section 667.6, if applicable.’ ” (People v. Jones (2001) 25 Cal.4th 98, 103.)
In Jones, our Supreme Court addressed the question of “what is the meaning of the phrase ‘single occasion’ under [former section] 667.61, subdivision (g)?” (People v. Jones, supra, 25 Cal.4th at p. 100.) The court concluded that “for the purposes of [former section] 667.61, subdivision (g), sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” (Id. at p. 107.) Thus, “the Legislature intended to impose no more than one such [indeterminate life sentence] per victim per episode of sexually assaultive behavior.” (Ibid.) Applying the rule in Jones, the appellate court in People v. Fuller (2006) 135 Cal.App.4th 1336 determined that only one indeterminate life sentence could be imposed under former section 667.61, subdivision (g), where the defendant kept the victim “under his continuous and uninterrupted control” while committing three rapes. (Id. at p. 1343; see also People v. Stewart (2004) 119 Cal.App.4th 163, 174-175.)
As an intermediate appellate court, we are guided by the California Supreme Court’s ruling in Jones, supra, 25 Cal.4th at p. 107. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Following Jones, we believe that the trial court applied an incorrect standard when the court determined that each section 288, subdivision (a) offense against Christina and Beth constituted a separate occasion and on that basis imposed a consecutive sentence of 15 years to life on counts 3 through 12. The five lewd acts alleged in counts 3 through 7 (involving Christina) and 3 through 12 (involving Beth) were described in Beth’s testimony concerning her fourth visit with Christina to defendant’s house. Beth testified that during the fourth visit defendant had the girls tie rubber bands around his penis, walk him up and down stairs while pulling a rope attached to his penis, spank him with a back scratcher and a ruler, draw on his buttocks, and wash the ink off his buttocks.
On the basis of Beth’s testimony, we believe that it is appropriate for the trial court to determine, under the standard articulated in Jones, whether the section 288, subdivision (a) offenses against Christina and Beth occurred on a single occasion under the standard established in Jones, supra, 25 Cal.4th at p. 107. If the trial court makes that finding, only two consecutive sentences of 15 years to life may be imposed on counts 3 through 12. Therefore, we will remand the case for resentencing on counts 3 through 12.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing on counts 3 through 12 (lewd acts upon a child, § 288, subdivision (a)). Upon resentencing, the trial court shall determine whether counts 3 through 12 were committed on a single occasion (former § 667.61, subd. (g)) under the standard articulated in People v. Jones (2001) 25 Cal.4th 98. In all other respects, the judgment is affirmed.
WE CONCUR: MIHARA, J., duffy, J.