Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F07017
NICHOLSON , J.
A jury convicted defendant Manuel Djone Lopes of six counts of lewd and lascivious conduct with a child under 14 years of age (Pen. Code, § 288, subd. (a)); two counts of assault with the intent to commit rape by force or fear (§§ 220/261, subd. (a)(2)); and one count each of rape (§ 261, subd. (a)(2)); unlawful oral copulation (§ 288a, subd. (c)(2)); and forcible sexual penetration (§ 289, subd. (a)(1)). The trial court sentenced defendant to a state prison term of 36 years 8 months.
All undesignated references to sections are to the Penal Code.
Defendant appeals from his conviction, alleging the following arguments:
1. The evidence did not show that five of the six counts of lewd and lascivious conduct occurred at the time alleged in the information;
2. Convictions on the same five counts amounted to being convicted of uncharged offenses; and counsel’s failure to protect defendant against those counts constituted ineffective assistance;
3. The trial court erred by not instructing sua sponte with CALJIC No. 10.64 on limiting the use of expert testimony concerning Child Sexual Abuse Accommodation Syndrome;
4. The trial court erred by not instructing on simple assault as a lesser included offense of assault with the intent to commit rape;
5. The trial court violated defendant’s right to be present at trial when it received the verdict and polled the jurors in defendant’s absence; and
6. The prosecutor committed misconduct in his closing argument.
We conclude that the trial court committed no prejudicial error and we affirm the judgment.
FACTS
Counts one through six -- lewd and lascivious conduct with a child
Defendant sexually assaulted his daughter, V., from the time she was eight years old until she was 14 years old. The first assault occurred in 1998 when V. was in the third grade. At that time, the family lived in an apartment in Sacramento. The family consisted of defendant, his wife Patricia, son Manny, daughter V., and defendant’s brother Paul.
During the first assault, defendant entered the bedroom where V. was sleeping, put his hand underneath V.’s clothes, and rubbed her vagina. V. told defendant to stop and leave her alone, but he did not. V. next remembered being in her parents’ bedroom. She could not recall how she got there. Defendant sat down on the bed and V. stood in front of him. Defendant pulled down V.’s shorts and underwear and again rubbed her vagina. V. could not recall how this incident ended.
V. testified that over the next four years, similar incidents of defendant rubbing her vagina occurred five or six times. Three of the assaults happened while the family lived in the Sacramento apartment, while the remaining assaults occurred in defendant’s parents’ house in West Sacramento where the family had eventually moved. The assaults occurred early in the morning. Defendant would take the day off work, take his wife to work early in the morning, then come home and molest V.
V. never told anyone about these assaults because she did not want to break up the family. While molesting V., defendant told her not to tell anyone because he would go to jail.
Uncharged conduct
One evening while V. was attending the seventh grade, her brother had gone to a dance and her mother was attending a concert. Defendant drove V. along the river and parked the car. Defendant put window shades over the front and rear windshields. V. became scared and began crying because she was afraid something was going to happen.
A police car pulled up behind defendant’s car. The officer asked defendant why he had the shades up. Defendant said he and V. were just having a conversation and the lights from the other cars were hurting V.’s eyes. The officer asked V. if she was okay. V. said everything was fine. The officer told defendant to keep driving. While driving home, defendant quickly touched V.’s vagina over her clothing.
Counts seven and eight -- assault with the intent to commit rape
In January 2004, V. was in her ninth grade year. One morning, defendant took the day off work and took his wife to her work. He returned home about 5:00 a.m., came into V.’s bedroom, and took off her shorts and underwear. V. cried and asked him not to do it. Defendant told her to be quiet. Defendant attempted to insert his finger inside V.’s vagina. His finger was lubricated with a gel, and he succeeded in getting the tip of his finger inside her. V. moved away because it hurt her. He continued trying, but eventually gave up.
Then defendant climbed on top of V. His boxer shorts were off. V. felt his erection against her stomach. She cried louder. Defendant put his hand over her mouth and told her to “shut up.” V. could not recall if defendant’s penis went near her vagina or how the attack ultimately ended. After defendant left the room, V. locked her door and cried herself back to sleep clutching one of her teddy bears.
On a windy March 2004 day, defendant told V. and her brother, Manny, that they could stay home from school due to the weather. Manny went to school, but V. stayed home. Defendant took the day off work. He molested V. by touching her vagina and attempting to insert his finger into it. V could not recall if he penetrated. At trial in 2005, V. also could not recall if defendant crawled up on top of her.
During a videotaped forensic interview of V. conducted by staff at the Multi Disciplinary Interview Center (MDIC) in May 2004, V. stated that after defendant touched her vagina on this occasion, he got on top of her and attempted to put his penis inside of her. His attempt was unsuccessful. At trial, V. stated she could not remember making this statement to the interviewer.
Counts nine through eleven -- rape, unlawful oral copulation, forcible sexual penetration
By April 2004, the family had moved to a new condominium in Sacramento. Once again, defendant took a day off work, drove his wife to work, then came home and molested V. He woke her up, picked her up out of bed, and carried her into his bedroom. V. cried and asked him not to do this to her. He laid her down on top of a white towel placed on his bed. He took V.’s pants and underwear off and began rubbing her vagina. His fingertip penetrated her vagina. V. squirmed and tried to move away from defendant, hitting her head on the wall. Defendant licked V.’s vagina. He got on top of her and tried to insert his penis into her vagina, but he could not get it in completely. V. tried to move away, but defendant grabbed her by the shoulders and pulled her back down. V. cried during the attack, and defendant told her to shut up and be quiet. He told her not to tell anyone what he had done because he would go to jail if she did.
V. did not report these assaults to her mother for fear it would break up the family. She did not disclose the molestations until sometime in 2004, when she wrote a letter to a friend stating she had been molested. That same year, she also told her brother of the assaults.
We will provide additional facts as necessary.
DISCUSSION
I
Variance Between Allegations and Proof of Counts Two Through Six
Defendant contends his due process rights to notice of the charges against him and an opportunity to defend were violated when he was convicted of counts two through six. He claims we must reverse these convictions because there is no evidence showing these offenses occurred within the dates alleged in the information. We conclude defendant forfeited this argument.
A. Background information
Defendant waived his right to a preliminary hearing, and the complaint was deemed an information. Counts one through six of the information each alleged that defendant violated section 288, subdivision (a), “on or about and between August 08, 1997, and August 07, 1998,” and that V. was a child “under the age of 14 years, to wit, age 8 years[.]”
V.’s birthday is August 8, 1989.
In his opening statement, the prosecutor told the jury that the molestations began when V. was eight years old in the third or fourth grade, and they “happened on a consistent basis of approximately once or twice a month for the better part of a year.” He stated counts one through six involve the time frame when V. “was in third grade.”
At trial, V. testified to only one incident that occurred when she was in the third grade. When asked if defendant molested her any other times when she was that age, V. said, “I really don’t remember.” When asked to describe the next incident, V. described the incident that occurred in the car on their way home from the river. V. was in the seventh grade at that time.
Explaining the event in the car, V. stated she had had a feeling defendant was going to assault her because he sometimes would touch her for no reason. Asked how many times defendant had touched her before the car incident, V. said she could not remember. When asked to give her best estimate, V. said it “happened more than once, but I can say maybe about five, six times.” These incidents happened between the time V. was in the third and seventh grades, or between the ages of eight and 12 or 13. Three of the incidents happened at the Sacramento apartment, the others happened at the West Sacramento home. According to trial testimony, the family moved to West Sacramento either in 2000 when V. was 10 years old or in 2002 when V. was 12. V. gave no additional details about the five or six other incidents.
During his closing argument, the prosecutor expanded on his earlier opening statement. The prosecutor stated counts two through six “involved the first set of touches that [V.] went through . . . when she was in third grade until the time she was just ready to turn 14.”
During deliberation, the jury requested and received read back of V.’s testimony “regarding the fondeling [sic] incidents from 3rd grade through 7th grade. Regarding counts 1-6.”
The verdict forms relating to counts two through six did not require the jury to state the date of the offenses. The forms referred to a violation of section 288, subdivision (a), “as charged in Count [__] of the Information.” The information was read to the jurors at the beginning of trial, but apparently was not provided to them during their deliberations.
B. Analysis
Defendant’s argument goes to the variance between the pleading and the proof. The information alleged defendant molested V. six times while V. was eight years old. The trial testimony established that defendant molested V. at least once when she was eight, but at least three of the other incidents occurred after V. had turned 10 or 12 years old. Defendant claims the variance between the dates alleged in the information and the testimony at trial violated his due process rights.
Defendant forfeited his right to raise this argument here by not objecting to the variance in the trial court. “An objection on the ground of variance between the pleading and the proof cannot be made for the first time on appeal where defendant was not injured or prejudiced by the variance. [Citation.]” (People v. Amy (1950) 100 Cal.App.2d 126, 128.)
Defendant suffered no harm from the variance. He testified on his own behalf and declared he never molested V. at any time. Thus, no matter what day the information may have alleged, defendant’s defense would have been the same. “[A] variance may be disregarded where the action has been as fully and fairly tried on the merits as though the variance had not existed.” (Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 382.) Defendant’s failure to object to the variance at trial forfeits the argument here.
Also, by waiving a preliminary hearing, defendant forfeited his right to complain that he was provided with insufficient notice of the charges against him. “‘It is clear that in modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend. . . . [T]he time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.’ [Citation.]” (People v. Butte (2004) 117 Cal.App.4th 956, 959, italics omitted.) A defendant forfeits his right to challenge notice of the charges against him when he forgoes his right to a preliminary hearing. (Ibid.)
By waiving his preliminary hearing and by not objecting to the variance at trial, defendant forfeited his right to challenge the variance here on appeal.
II
Conviction of Uncharged Crimes and Ineffective Assistance
Defendant argues the variance between the information’s allegations of counts two through six occurring when V. was eight years old and V.’s testimony at trial, as just described, resulted in him being convicted of crimes for which he was not charged. Defendant failed to raise this objection below, and thus has forfeited the argument here. (See People v. Gil (1992) 3 Cal.App.4th 653, 659 [failure to object that offenses shown at trial were not the same ones shown at the preliminary hearing results in forfeiture of argument on appeal].)
Defendant contends he suffered ineffective assistance of counsel due to his attorney’s failure to object to the inconsistency between the pleading and the proof. Specifically, he claims his attorney: failed to request an instruction, such as CALJIC No. 4.71 or Judicial Council of California Criminal Jury Instructions, CALCRIM No. 207, to inform the jury that the People had to prove the crimes were committed on or about the dates alleged in the information; failed to object to the prosecutor’s closing argument asking for convictions of crimes outside the dates in the information; and failed to move for an acquittal based on the failure to prove the incidents occurred on or about the dates alleged in the information.
To establish ineffective assistance of counsel, defendant must show (1) his counsel’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability the result would have been different absent the error. (In re Resendiz (2001) 25 Cal.4th 230, 239, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].)
Defendant cannot show a reasonable probability of a different result absent counsel’s failure to object. First, the variance was immaterial, and the court and jury could disregard it. “The precise time of a crime need not be declared in the accusatory pleading. It is sufficient if it alleges the commission of the offense at any time before the filing of the information, except where the time is a material ingredient of the offense.” (People v. Wrigley (1968) 69 Cal.2d 149, 155.)
The specific date is not a material factor in proving a violation of section 288, subdivision (a), except as to prove the victim was under the age of 14 years at the time of the offense. The information met this requirement. “Even in alibi cases, neither the time [citation] nor the place at which an offense is committed [citations] is material, and an immaterial variance will be disregarded [citation].” (People v. Pitts (1990) 223 Cal.App.3d 606, 906 (Pitts).) An objection thus would not have changed the verdict.
Second, had defense counsel objected, the court most likely would have allowed the prosecution to amend the dates alleged in the information. Defendant claims section 1009 would have forbidden the court from allowing such an amendment. Defendant reads section 1009 too broadly.
Section 1009 provides, in relevant part: “The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. . . . An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.”
As explained in People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters), “Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted. The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion. Moreover, a trial court correctly exercises its discretion by allowing an amendment of an information to properly state the offense at the conclusion of the trial. Similarly, where the amendment makes no substantial change in the offense charged and requires no additional preparation or evidence to meet the change, the denial of a continuance is justified and proper. [Citations.]”
In Winters, the defendant was charged with possession of methamphetamine for sale. Defendant waived a preliminary hearing. On the second day of trial, the trial court allowed the prosecution to amend the information to allege a second count of transportation of methamphetamine. The appellate court reversed defendant’s conviction on the added count. The court concluded that because the preliminary hearing was waived, there was no evidence presented at a preliminary hearing upon which the amendment could be based. The court was left with the allegations of the complaint. An amendment that added a different crime than asserted in the complaint changed the offense charged and was not proper under section 1009. (Winters, supra, 221 Cal.App.3d at pp. 1007-1008.)
Here, an amendment to change the dates of the alleged crimes would not add any new counts or charge any violations of new or different code sections. The only difference between the information and the amended information would have been the time frames. The amended information still would have charged defendant with six acts of lewd and lascivious acts on V., a child under 14 years of age, under section 288, subdivision (a). The amendment would not have changed the essential ingredients of the offenses charged: the perpetrator remained the same, the victim remained the same, and the conduct remained the same. The amendments would not have charged a different offense not shown by evidence at a preliminary hearing. Rather, it only would have corrected an immaterial variance. Such an amendment does not run afoul of section 1009.
This is particularly true in light of defendant’s decision to waive a preliminary hearing. The function of the preliminary hearing is to give the defendant notice of “all the particulars of the crime charged.” (Pitts, supra, 223 Cal.App.3d at p. 905.) The information, by contrast, provides much more general notice of the charges. (Id. at p. 904.) “‘Notice of the specific charge is a constitutional right of the accused. [Citation.] An information which charges a criminal defendant with multiple counts of the same offense does not violate due process so long as (1) the information informs defendant of the nature of the conduct with which he is accused and (2) the evidence presented at the preliminary hearing informs him of the particulars of the offenses which the prosecution may prove at trial. [Citations.] The information plays a limited but important role -- it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant.’” (Ibid.)
Here, the information informed defendant of the kinds of offenses charged and the number of charges that resulted in prosecution. To the extent defendant sought more specificity as to the time, place and manner of the charges, he was entitled to receive it at a preliminary hearing. He waived that right. Thus, this case does not present a contradiction between the trial testimony and any preliminary hearing testimony.
Third, defendant suffered no prejudice. He was charged with six violations of section 288, subdivision (a), and his defense to each was that he never molested V. Given the amended information at hand, his defense did not change. It would not have changed even if the information had been amended. For all of these reasons, defendant cannot show he suffered prejudicial harm from any ineffective assistance of counsel.
III
CALJIC No. 10.64
Defendant asserts the trial court erred by not instructing sua sponte with CALJIC No. 10.64 on account of an expert witness’s testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). The instruction tells a jury to consider the expert’s testimony solely for showing that the victim’s reactions were not inconsistent with having been molested, and not to use it to determine whether the victim’s testimony was true. We conclude any error committed by the court by not instructing with CALJIC No. 10.64 was harmless.
CALJIC No. 10.64 reads in pertinent part: “Evidence has been presented to you concerning [[child sexual abuse accommodation] syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim’s [molestation] claim is true. [¶] [Child sexual abuse accommodation] syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a [molestation] has occurred, and seeks to describe and explain common reactions of [children] to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.] [¶] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with [her] having been [molested] . . . .”
A. Additional background information
The prosecutor put on Dr. Anthony Urquiza, a psychologist, as an expert witness on CSAAS. He stated his purpose in testifying was to give jurors an understanding of what typically happens with a child who has been sexually abused.
He explained five characteristics which, according to the CSAAS theory, often occur in children who have been sexually abused: (1) secrecy, or seeking to keep the victim silent by means that may include threats, intimidation, or physical abuse aimed at the victim or the victim’s parent; (2) the victim’s feeling of helplessness; (3) the victim’s feeling of entrapment and attempts to cope by accommodation; (4) delayed or unconvincing disclosure of the abuse; and (5) retraction, especially after the abuser or a proxy has had access to the victim and has made threats or has tried to arouse the victim’s feelings of guilt and responsibility for harming the abuser or others in the family.
Dr. Urquiza stated he had not met with V. or read police reports documenting V.’s claims. It was not his place to make a determination whether a particular person had been abused or was a perpetrator. Rather, he and the CSAAS theory were to inform and educate. Determining whether a child had been abused is “not the role of the accommodation syndrome. . . . [T]he purpose is educational, not to make a determination about guilt or innocence about whether a person has been abused or not. It’s not diagnostic. It’s really is [sic] a means to educate a jury about sexual abuse.”
The prosecutor posed a hypothetical question to Dr. Urquiza. A child is in the presence of her father, a molester, in a vehicle in a deserted area. The father was about to molest the child when a police officer arrived and conducted a brief investigation. Asked if it would be consistent with CSAAS for the child not to disclose a history of molestation to the officer, Dr. Urquiza replied it would be consistent to be reluctant or to fail to disclose, as the child might have been afraid of what was going to happen and of the potential consequences to her father.
The prosecutor followed up with additional facts to the scenario. If the same child was afraid that disclosure would break up the family and lead to economic uncertainty, and if the father had instructed the child not to disclose to avoid him going to jail, would CSAAS account for nondisclosure? “Certainly,” Dr. Urquiza responded.
During closing argument, the prosecutor stated that one of the reasons the jury should find V. credible was that her delayed disclosures of the molestations and her behavior “are entirely consistent with how molested children operate.”
B. Analysis
Expert testimony on CSAAS is permissible to disabuse jurors of myths or misconceptions about sexual abuse victims. However, the testimony cannot be used to suggest that abuse occurred in a particular case. (People v. Housley (1992) 6 Cal.App.4th 947, 954-955 (Housley).)
Expert witness testimony on CSAAS is permissible for rehabilitation of the alleged victim’s credibility, and is “‘limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand.’” (People v. Jeff (1988) 204 Cal.App.3d 309, 331-332 (Jeff), quoting People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100.) The purpose of this limitation is to prevent the potential misuse of the expert’s testimony by the jury to conclude the victim has essentially been diagnosed with a syndrome that presupposes the molestation occurred. (Jeff, supra, 204 Cal.App.3d at p. 331.)
There is “some disagreement concerning whether the defendant is entitled to a sua sponte instruction specifically limiting the use of this evidence.” (Housley, supra, 6 Cal.App.4th at p. 957.) Some courts have concluded it is appropriate to impose such a duty (e.g., id. at pp. 958-959; People v. Bowker (1988) 203 Cal.App.3d 385, 394), while others have suggested a limiting instruction is required only if requested. (People v. Stark (1989) 213 Cal.App.3d 107, 116; People v. Sanchez (1989) 208 Cal.App.3d 721, 735; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588, overruled on other grounds in People v. Scott (1994) 9 Cal.4th 331, 348.)
Assuming for purposes of argument that the trial court had a duty to give sua sponte a limiting instruction, the court’s failure to do so here was not prejudicial and does not require reversal. When the expert testimony about CSAAS is couched in general terms and the jury is informed that the expert had no contact with the victim or knowledge of the underlying facts, it is not reasonably probable that the jury could have interpreted the expert testimony as being offered as proof that the victim in fact was sexually abused. In that instance, the failure to provide a limiting jury instruction is harmless. (Housley, supra, 6 Cal.App.4th at p. 959.)
Such was the case here. Dr. Urquiza’s testimony described behavior common to abused victims as a class, rather than any individual victim, and he testified that he had neither met the victim nor read any of the police reports filed on the incidents. Hence, it is not reasonably probable that defendant would have received a more favorable verdict had a limiting instruction been given.
Defendant, however, argues that the prosecutor’s solicitation of the expert’s opinion to hypothetical facts patterned on the actual facts of an incident was prejudicial error in light of the court’s failure to give a limiting instruction. We disagree. The error was not prejudicial because Dr. Urquiza, the prosecutor, and defense counsel clearly informed the jury that Dr. Urquiza was not testifying to make a determination that a particular person had been sexually abused.
Dr. Urquiza testified he was not determining whether a person had been abused or was a perpetrator. He had read no police reports and had not met with V. He stated that the purpose of the CSAAS theory was solely educational, not diagnostic. Determining whether a child had been abused is “not the role of the accommodation syndrome.”
In his closing argument, the prosecutor explained that he brought Dr. Urquiza before the jury to explain away myths surrounding how people believe molested children in general should act. The prosecutor emphasized that V. acted consistently with the behaviors described by Dr. Urquiza, but he did not at any time indicate that Dr. Urquiza had determined V. had been molested.
To make sure the jury understood this point, even defense counsel emphasized it in his closing argument: “Dr. Urquiza . . . very honestly tells you that this is an educational tool. And we’re giving it to you to educate you on something you may not be aware of.”
Thus, the purpose and limitation of Dr. Urquiza’s testimony was driven home at least three times. CALJIC No. 10.64 would have added only a fourth recitation of the same information. With their common understanding of Dr. Urquiza’s purpose, the jury would not have used Dr. Urquiza’s testimony as a basis for determining the molestations here at issue occurred. Any error thus was not prejudicial.
IV
Instruction on Lesser Included Offense of Assault
Defendant contends the trial court committed prejudicial error by not instructing sua sponte on assault (§ 240) as a lesser included offense to counts seven and eight, assault with the intent to commit rape. (§§ 220, 261, subd. (a)(2).) His trial counsel did not request such an instruction. He claims the court was required to give the instruction because the evidence supporting his convictions on counts seven and eight was not so strong as to preclude a conviction of simple assault. We disagree. Defendant is confusing elements of an offense with the credibility of evidence.
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. . . . [T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162, italics added.)
Counts seven and eight charged defendant with assault with the intent to commit rape. An assault, of course, is an “unlawful attempt, coupled with present ability, to commit a violent injury” on another person. (§ 240) Rape is an act of sexual intercourse with a person who is not the spouse of the perpetrator where, among other possibilities, “it is accomplished against a person’s will by force, violence, duress, menace, or fear of immediate or unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).) Simple assault is a lesser included offense of assault with intent to commit rape. (People v. Elam (2001) 91 Cal.App.4th 298, 308.)
People v. Bradley (1993) 15 Cal.App.4th 1144 (Bradley), overruled on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 19-22, provides a good example of what constitutes an assault with the intent to commit rape. The 16-year-old victim in that case was using a pay phone when the defendant came up from behind, grabbed her arm, and forced her to walk around the side of a building to a dimly lit dumpster area. Continuing to hold onto the victim’s arm, the defendant used his free hand to pull back her hair. He kissed her neck, and attempted to kiss her mouth. He used his free hand to caress the victim underneath her shirt. He slid his hand down her shorts and caressed her within an inch of her vaginal area. Defendant was pressing the front of his clothed body against the victim’s back, and she could feel defendant’s erection pressing against her back. Suddenly, car lights shined into the dumpster area, and the assailant fled. (Bradley, supra, 15 Cal.App.4th at pp. 1149-1150.) The Court of Appeal determined this was sufficient evidence to support the jury’s finding that defendant committed an assault with the intent to rape. (Id. at pp. 1154-1155.)
Here, the evidence that defendant was guilty only of simple assault was not substantial enough to merit an instruction on assault as a lesser included offense. There was more evidence here than in Bradley to support the convictions for assault with the intent to rape. In one instance (count seven), defendant came into V.’s bedroom and took off her shorts and underwear. V. cried and asked him not to do it. Defendant told her to be quiet. Defendant attempted to insert his lubricated finger inside V.’s vagina, and he succeeded in getting the tip of his finger inside her. V. moved away because it hurt her. Then defendant climbed on top of V. He had no boxer shorts on. She felt his erection against her stomach. She cried louder. Defendant put his hand over her mouth and told her to “shut up.” This was sufficiently strong evidence obviating any need to instruct the jury on simple assault as a lesser included offense of this particular crime.
In the second instance (count eight), defendant took the day off work and molested V. by touching her vagina and attempting to insert his finger into it. V. claimed in a forensic interview at the MDIC that defendant also got on top of her on this occasion and attempted to insert his penis inside of her. This evidence was also sufficiently strong to eliminate any need to instruct on simple assault as a lesser included offense.
In short, if the jurors believed V., their only option was to convict defendant of the charged crimes. If the jurors believed defendant, they would have acquitted defendant. They would not have convicted him of a lesser offense. There was no reason for an instruction on lesser included offenses.
Defendant argues that under CALJIC No. 2.13, the jurors could not consider V.’s statement in the MDIC interview for its truth until they first determined that V. was lying in court when she said she could not recall making that statement. Defendant reads the instruction incorrectly.
CALJIC No. 2.13 as given by the court states: “Evidence that at . . . some other time, a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in this trial, maybe [sic] considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.
“If you disbelieve a witnesses [sic] testimony that he or she no longer remembers a certain event, that testimony is inconsistent with prior statements or statements by him or her describing that event.”
CALJIC No. 2.13 “informs the jury that a witness’s prior inconsistent statements may be considered not only as they bear on the witness’s credibility, but also as evidence of the truth of the facts as stated by the witness on the prior occasion.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62.) Nothing in the instruction requires the jury first to disbelieve the witness’s trial testimony before it can believe the witness’s earlier statement. Disbelieving the witness’s trial testimony only affects whether that testimony is to be considered consistent or inconsistent with the earlier statements. The jury remains free to give the earlier statement whatever weight it chooses whether or not it believes the trial testimony.
Thus, the jury here was free to consider V.’s earlier statement to the MDIC staff for its truth. That statement, that defendant attempted to insert his penis inside V., was sufficient to establish an assault with the intent to rape, and it obviated any need the court had to instruct on simple assault as a lesser included offense of count eight.
V
Defendant’s Right to be Present at Trial
Defendant asserts the trial court violated his federal and state constitutional right and his state statutory right to be present at trial when the court received the jury verdict, polled the jury, and discharged the jurors without defendant being present. Assuming there was error, we find no prejudice.
A. Additional background information
At 2:00 p.m., August 2, 2005, the court was informed that the jury had reached a verdict. At 3:05 p.m., the attorneys appeared in court. Defendant was not present. The court stated it had notified counsel over an hour before and asked defense counsel if he had attempted to reach defendant. Defense counsel stated he had left a message on defendant’s cell phone about an hour prior telling him the jury had reached a verdict and he was expected in court. At around 2:40 p.m., counsel told defendant’s father that he was unable to reach defendant. The father said he would attempt to find defendant. Counsel also stated he had told defendant the previous day to be within 30 minutes of the courthouse.
After receiving this explanation, the court said, “Okay. Bring the jury in.” The court received and read the verdicts, and polled the jurors. Defense counsel did not object to this procedure. After the jury was excused, the court issued a no bail bench warrant for defendant’s arrest, noting that bail was forfeited.
At 3:15 p.m., just minutes after excusing the jury, defendant arrived in court. At 3:25 p.m., the attorneys were present, and the court read the verdicts to defendant. The court informed him that the jurors had been polled and it had confirmed their verdicts. The record contains no statement by defendant or his counsel at this point in time objecting to the court’s procedure.
B. Analysis
According to the United States Supreme Court, “even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ (Snyder v. Massachusetts [(1934)] 291 U.S. 97, 105-106 [78 L.Ed. 674].) Although the Court has emphasized that this privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a shadow’ (id. at pp. 106-107), due process clearly requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence.’ (Id. at p. 108.) Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 647].)
The California Constitution grants to criminal defendants the right “to be personally present with counsel, and to be confronted with the witnesses against the defendant.” (Cal. Const., art. I, § 15.) California courts interpret this right to be present using the same test that applies to the federal right. (People v. Waidla (2000) 22 Cal.4th 690, 741-742.) “The defendant must show that any violation of this right resulted in prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]” (People v. Hines (1997) 15 Cal.4th 997, 1039.)
The federal courts appear to have split on whether the right to be present applies to the return and announcement of a verdict. In Rice v. Wood (9th Cir. 1996) 77 F.3d 1138 (Rice), the Ninth Circuit Court of Appeals stated that whether a defendant had a constitutional right to be present at sentencing by a jury in a death penalty case “is an open question.” (Id. at p. 1140, fn. 2.) The Court of Appeals did not answer the question because the state in that case conceded the point, to the surprise of the court. The court noted that the Supreme Court has held there is no constitutional right to be present in proceedings where the defendant could not have done more to help his cause than simply appear for the jury’s announcement. “(See [Kentucky v.] Stincer, supra, 482 U.S. at p. 745 (no right to be present during hearing to determine competency of prosecution’s key witnesses); United States v. Gagnon [(1985)] 470 U.S. 522, 526-27 [84 L.Ed.2d 486] (per curiam) (no right to be present during in camera examination of juror who complained of being intimidated by defendant); Snyder [v. Massachusetts], supra, 291 U.S. at p. 122 (no right to be present when jury was taken to view the crime scene).)” (Rice, supra, 77 F.3d at pp. 1140-1141, fn. 2.)
However, two other circuit courts of appeals concluded a defendant has a due process right to be present in court when the verdict is rendered. (United States v. Canady (2d Cir. 1997) 126 F.3d 352, 361-362 (Canady); Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395-396.) The Canady court explained the right exists because “the defendant’s mere presence exerts a ‘psychological influence upon the jury.’ [Citations.] This is because the jury in deliberating towards a decision knows that it must tell the defendant directly of its decision in the solemnity of the courtroom.” (Canady, supra, 126 F.3d at pp. 361-362.)
The parties cite us to no published California case on point, and we have found none. When presented with the opportunity to discuss the issue, our Supreme Court in People v. Lewis and Oliver (2006) 39 Cal.4th 970, assumed without deciding there was a constitutional right to presence at the reading of the verdict. (Id. at p. 1040.) In that case, the court upheld a trial court’s rendering of the guilt verdict while the defendant was hospitalized in very critical condition and described as “comatose.” “Consistent with due process principles, we conclude that the trial court properly determined that any constitutional right to presence was not absolute, and that -- in the interest of justice -- the verdict could be read while [defendant] was physically incapacitated and unable to attend court following a third party assault. [Citation.]” (Ibid.)
California statutes also provide a right of presence. State law generally requires a defendant in a felony case to be present at trial. (§§ 977, subd. (b)(1); 1043, subd. (a).) However, where the trial commenced in the defendant’s presence, the defendant’s absence does not prevent the trial from continuing up to and including the return of the verdict where the defendant is being prosecuted for an offense not punishable by death and the defendant “is voluntarily absent.” (§ 1043, subd. (b)(2).)
The court may also receive the verdict in the absence of a defendant charged with a felony where, “after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that the verdict be received in his absence.” (§ 1148.) This exception mirrors the exception found by the Supreme Court in People v. Lewis and Oliver.
Following the Supreme Court’s lead, we, too, assume without deciding that defendant had a constitutional right to be present when the verdict was read. We also conclude that the trial court’s actions did not violate his right because the court implicitly determined defendant had voluntarily absented himself and it proceeded in the interest of justice, as allowed under People v. Lewis and Oliver and section 1148.
Defendant obviously was not in custody, and he had made whatever decision he made so as not to be accessible or readily available when the verdict was returned. Through counsel, the court exercised reasonable diligence to secure defendant’s attendance. Defendant’s counsel had instructed defendant the previous day to stay within 30 minutes of the courthouse. Counsel attempted to contact defendant by phone, but was able only to leave a voice mail message. Counsel also left a message with defendant’s father. Approximately 40 minutes after the court learned the jury had reached a verdict, defendant’s father spoke with counsel, stating he would attempt to find defendant. More than one hour after the court had summoned the parties, defendant still was no where to be found. The court had waited almost twice as long as the time period defendant was instructed to be within the courthouse. Once defendant finally arrived, he made no protest and, more importantly, offered no explanation as to why he had not been within 30 minutes of the courthouse. These efforts constituted reasonable diligence to find him.
Moreover, the jury had been empanelled for four weeks at great disruption to the jurors’ personal lives. The court would not want to keep the jury empanelled for more time not knowing whether or when defendant might appear. In short, the operation of justice was not to be unreasonably delayed due to the significant uncertainty presented to the court. We conclude the trial court did not abuse its discretion in proceeding to verdict in defendant’s voluntary absence in the interest of justice.
Defendant disagrees with our holding. First, he claims the court made no express finding of voluntary absence or acting in the interest of justice. We presume the existence of all findings necessary to support the judgment and, as just discussed, the record adequately supports such a finding.
Second, in the absence of such a finding, defendant claims the error was structural pursuant to Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302]. We disagree.
In Rice, the Ninth Circuit concluded that receiving a jury’s sentencing decision without the defendant being present was not structural error. Its reasoning is persuasive to the rendition of a jury verdict, and we adopt it here: “The Supreme Court has explained that trial errors are those ‘which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.’ [(Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308.)] Structural errors, on the other hand, are defects that permeate ‘the entire conduct of the trial from beginning to end’ (id. at 309), or that ‘affect[] the framework within which the trial proceeds, rather than simply an error in the trial process itself" (id. at 310).
“[Defendant’s] absence when the jury announced his sentence simply does not fall within the narrow category of structural errors. Had he been present, he couldn’t have pleaded with the jury or spoken to the judge. He had no active role to play; he was there only to hear the jury announce its decision. The error in this case does not, like the denial of an impartial judge or the assistance of counsel, affect the trial from beginning to end. Rather, like most trial errors, it can be quantitatively assessed in order to determine whether or not it was harmless.” (Rice, supra, 77 F.3d at pp. 1141.)
Thirdly, and alternatively, defendant argues the error was not harmless beyond a reasonable doubt. We disagree for the same reasons expressed in Rice as to why the error was trivial. “[B]ased on experience, it is unlikely that a juror will change his vote merely because defendant is present at return of the verdict and polling.” (Rice, supra, 77 F.3d at p. 1144.) Moreover, each juror was polled and each expressed his agreement to the verdict. Nothing in the record suggests that either defendant, defendant’s counsel, the prosecutor, the judge, or any member of the jury hesitated or expressed doubt about the verdict or the procedure used to announce it. Even had defendant been present, he could not have argued or attempted to convince the jury in any way. Any error associated with the rendering of the verdict in defendant’s absence was harmless beyond a reasonable doubt.
VI
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during his closing argument. Defendant forfeited his right to raise this argument.
A. Additional background information
During closing argument, the prosecutor stated that if V. had made a prior inconsistent statement to law enforcement officers or during her videotaped forensic interview at the MDIC, defendant would have introduced those statements during trial. The prosecutor argued the defendant did not introduce those statements because the statements were consistent with V.’s trial testimony. The argument in pertinent part went as follows:
“What I’m gonna suggest to you is that if there was a single variation between what [V.] told [Officer] Hirai on April 29th 2004, from what [V.] told the [MDIC] interviewer on May 10th, 2004, to what she told you last week, the defense would have brought in Hirai and the defense would have showed you that videotape. Did the defense do either of those? No.
“Why? Because they’re the same. Because her story has been consistent from the start. What she told Hirai, what she told that MDIC interviewer and that was videotaped, you could have watched it, could have seen it, could have evaluated her testimony at that day and you could have held it up against what she told you in court had the defense wanted you to see it.
“They didn’t show it to you. You’d better ask yourself why. They went through a lot of trouble attacking that girl, and it’s no trouble to get an officer in here and no trouble to show you a videotape. The answer is very clear. There was no variation. That child has been telling the same report of molests since this affair started over a year ago.”
“Now, MDIC, a 45 minute interview on May 10th, 2004 was videotaped, conducted by a trained interviewing forensic interviewer and if the content conflicted, you would have seen it.
“Inferentially then, the MDIC was absolutely consistent with [V.’s] in-court testimony, as was her testimony of Hirai. She is now telling you what she has always stated.”
Defense counsel did not object to the prosecutor’s argument.
B. Analysis
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820.)
Defendant did not lodge an objection during closing argument, nor did he seek to have the jury admonished to disregard the prosecutor’s statements. He thus has forfeited this claim on appeal.
Defendant argues he was excused from the requirement to object because any objection and admonition would not have cured the harm caused by the alleged misconduct. (See People v. Hill, supra, 17 Cal.4th at p. 820.) He asserts an admonition would not have enabled jurors “to set aside the prosecutor’s assertion that [V.] had made two ‘entirely consistent’ statements to investigators before the trial.”
Defendant’s assertion does not explain why the admonition would not address defendant’s concerns. Rather, it highlights the reason why the prosecutor’s argument was not misconduct. Defendant submitted no evidence showing V.’s pretrial statements were inconsistent with her trial testimony. It was the defendant’s burden to make that showing. The prosecutor was free to comment on defendant’s failure to call logical witnesses or present material evidence. (People v. Valdez (2004) 32 Cal.4th 73, 127.)
Before us, defendant argues the prosecutor’s statements were particularly egregious because the prosecutor knew V.’s pretrial statements were in fact inconsistent with her trial testimony. He relies on a police report summarizing the MDIC interview for this claim. The summary states V. told the interviewer that the molestations happened when she was eight years old, and that during the uncharged incident in the vehicle, defendant was masturbating when the police officer arrived. The report was attached to the complaint. However, the report was never introduced into evidence, nor was the authoring officer or V. ever questioned about the prior statements. We thus may not consider the hearsay report.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J. BUTZ , J.