Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF042971
BLEASE, Acting P. J.
Defendant Antonio Tello Marquez was convicted of sexually molesting his two granddaughters, N. and A. The trial court sentenced him to a determinate term of 14 years and 8 months plus an indeterminate term of 105 years to life.
The evidence against defendant came almost entirely from the testimony of his oldest granddaughter, N., who was six-years-old at the time of trial. On appeal, defendant argues in part that the admission of N.’s prior interviews constituted reversible error because the statements were hearsay and violated his Sixth Amendment right of confrontation. We shall conclude that defendant waived any hearsay objection by not properly objecting, and that there was no violation of defendant’s right of confrontation because the victim witness testified at trial, and defendant declined to cross-examine her.
Defendant raises numerous other arguments; however, we conclude there is no reversible error. We shall, therefore, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We generally outline the facts giving rise to the charges and convictions, and will add additional facts as necessary in the discussion portion of this opinion.
N. was born in July 1998, and was six-years-old at the time of trial. In April 2004, when N. was five, her mother T. was giving her a bath after N. came home from visiting her father at defendant’s house. Defendant is N.’s paternal grandfather. N.’s parents were never married. T. noticed a man-sized handprint on the inside of N.’s thighs. N. proceeded to tell T. that her grandfather had sexually assaulted her, and that it had been going on for years.
T. and her mother, Sharon, reported the assaults to the police the next day. Officer Creighton Urquhart interviewed Sharon, T., and N. He observed bruising on both of N.’s legs and a small amount of swelling around both knees. The bruising was on the shin and just above the knee.
Juliana Shon interviewed N. twice at the multi-disciplinary interview center (MDIC). The first interview was conducted on April 30, 2004, and the second on June 29, 2004. N. told the interviewer that defendant had raped her “a lot every time I go over there,” and that it had been happening since she was three. She also stated that defendant had done the same thing to her younger cousin, A. Video recordings of the MDIC interviews were played for the jury.
N. also disclosed during the second interview that she had been sexually molested by the 16-year-old son of her mother’s girlfriend.
Cathy Boyle, a nurse who specializes in examining children with a history or suspected history of sexual abuse, examined N. first on May 10, 2004, and again on June 30, 2004. During the first exam, Boyle did not see as much hymenal tissue as she would expect for a child N.’s age, and saw an irregularity at the bottom portion of the hymen. A narrow hymen is of concern because it may mean that penetration has occurred on multiple occasions so that there is a wearing away of the hymen.
After the first exam was completed, a medical team reviewed the photographs taken of the victim. The team was unable to classify the exam, so N. was brought back for a second exam. After the second exam, the team classified it as “concerning.” A “concerning” exam means the team saw injuries that may be from sexual abuse, but also may be from some other kind of injury. Later, the team’s classification system changed, and the photographs were reviewed again. After that review, the finding was changed to “indeterminate,” but Boyle continued to believe it was an abnormal exam.
Boyle also examined A. The results of that exam were normal.
Both N. and defendant testified at trial. N. continued to insist that defendant had vaginal and anal intercourse with her, and vaginal intercourse with A. In some respects her testimony was inconsistent with her statements in the MDIC interviews, and in some instances she was unable to recall details. Defendant denied any inappropriate behavior with N. or A., and testified he had never been alone with either girl, even for two minutes.
The jury found defendant guilty of four of the 10 charges of aggravated sexual assault against N. (rape) (Pen. Code, § 269, subd. (a)(1); counts 1 through 10), of two of the 10 charges of aggravated sexual assault (oral copulation) against N. (§ 269, subd. (a)(4); counts 11 through 20), of eight of the 20 charges of lewd or lascivious acts on a child under the age of 14 against N. (§ 288, subd. (a); counts 27 through 46), of one charge of aggravated sexual assault (forcible penetration) against N. (§ 269, subd. (a)(5); count 22), of one charge of genital penetration by a foreign object against N. (§ 289, subd. (j); count 24), of one charge of making criminal threats (§ 422; count 25), and of one charge of engaging in three or more acts of lewd or lascivious conduct on a child under the age of 14 against A. (§ 288.5, subd. (a); count 47). In addition to the above, the jury acquitted defendant of charges of kidnapping for rape against N. (§ 209, subd. (b)(1); count 21) and of inflicting corporal injury upon a child (N.) (§ 273d, subd. (a); count 26.) The jury found true an allegation that defendant committed an offense against more than one victim (case enhancement b). (§ 667.61, subd. (b).) The jury found an allegation that defendant personally used a deadly or dangerous weapon in the commission of a criminal threat not true (count 25a). (§ 12022, subd. (b)(1).) It found an allegation that defendant tied or bound N. not true (case enhancement a). (§ 667.61, subd. (a).)
References to an undesignated section are to the Penal Code.
The trial court sentenced defendant to seven 15-years-to-life terms for the aggravated sexual assault convictions. The sentences for violations of section 288, subdivision (a) (lewd or lascivious acts upon a child under 14) and of section 289, subdivision (j) (genital penetration by a foreign object) were stayed pursuant to section 654. Defendant received 14 years plus eight months for the remaining counts, for a total of 119 years plus eight months to life in prison.
I
Admissibility of MDIC Recordings
N. was interviewed twice at the MDIC. In these interviews N. described abuse by defendant of her and her cousin, A. Video recordings of these interviews were played for the jury before N. testified at trial. Defendant argues the recordings were improperly admitted hearsay because: (1) they did not qualify as prior inconsistent or consistent statements, and (2) their admission denied him his right to confront the witnesses against him.
A. Additional Facts and Procedural Background
Defendant filed an in limine motion to exclude the MDIC recordings. Defendant’s written motion did not argue that the hearsay exceptions asserted by the prosecution were inapplicable, but instead argued that because the minor’s statements during the MDIC interview were “testimonial” as described in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), they would violate his right to confront the witnesses against him, even if they were admissible through some exception to the hearsay rule.
In Crawford, the United States Supreme Court held that the confrontation clause prohibits the admission into evidence of “testimonial” hearsay statements against a defendant in a criminal trial unless: (1) the declarant is unavailable as a witness and the defendant has had a prior opportunity to cross-examine the declarant, or (2) the declarant appears for cross-examination at trial. (541 U.S. at p. 59 [158 L.Ed.2d at p. 197].) It overruled the former rule, set forth in Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 608] that said the admission of hearsay statements from unavailable witnesses did not violate the Confrontation Clause if such statements fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness.
The prosecution proposed the MDIC recordings be admitted pursuant to Evidence Code sections 1520 (content of a writing may be proved by an original) and 1360. However, admission of the video recording under Evidence Code section 1360 required the trial court to find that the time, content, and circumstances of the statement provided sufficient indicia of its reliability. The prosecutor never requested such a finding, and the trial court never made such a finding. Therefore, the MDIC recordings were not made admissible by Evidence Code section 1360.
The motion also refers to Evidence Code Section 1250, but this was apparently intended to refer to section 1520.
Evidence Code section 1360 provides:
At the hearing regarding the admissibility of the MDIC recordings, defense counsel again argued the recordings were testimonial, and should therefore be excluded until N. testified and he had a chance to confront her. The trial court indicated that Crawford would not apply if the witness testified. Defense counsel agreed that the issues would go away if the child testified first, but unless the child testified first, the statements would be objectionable hearsay based on Crawford.
The trial court opined that the recordings would not be excluded under Crawford, but would be hearsay without an exception, unless they were prior inconsistent statements. Defense counsel agreed.
The prosecutor noted defense counsel was not objecting to the admission of the recordings once the child testified, only to the recordings being played before she testified. The prosecutor then asked that she be allowed to play the tapes first because of scheduling issues. The court asked defense counsel if the evidence could be taken out of order subject to the court admonishing the jury if the evidence was not “connected up . . . .” Defense counsel agreed.
N. testified at trial. Her trial testimony was consistent with the taped interviews inasmuch as she continued to assert that her grandfather had molested her many times and that he also molested A.
Her testimony was inconsistent with her prior statement in several details. For example, in the interview N. claimed defendant molested her once in the living room, but at trial she stated he never did it in the living room. In the interview she claimed he took her and A. to a motel, but at trial she said he never took her to a motel. In the interview she claimed he hit her with a hammer all over, but at trial she said he never hit her. In the interview she said his “privates” smelled nasty, but at trial she said she never smelled his “privates.” In the interview she said defendant put his “private” in her mouth, but at trial she denied it.
At trial, N. used the term “privates” for breasts and genitals. We use her terminology where appropriate.
N. was unable to remember some things at trial. For example, she could not remember what time of day the last molestation occurred, or what she was wearing. She could not remember how many times her hand touched defendant’s “privates,” or how many times he had vaginal intercourse with her, although she remembered it was more than 10 times. She did not remember if defendant had ever molested her anywhere but his bedroom. She did not remember if defendant ever put chocolate on his privates, although she claimed he had in her taped interview. She could not remember if defendant ever put his hands in A.’s mouth, or how many times he put his hands on her “privates,” but she remembered it was more than once.
When N.’s testimony was partially completed, defense counsel renewed his objection to “all the hearsay that’s come in . . . .” The explanation for the objection was somewhat confused. Defense counsel claimed it was based on the fact that the prosecutor said “she was going to tie it up by the time [N.] got to testify, and that didn’t happen.” Counsel also claimed he could not cross-examine N. because she said she had forgotten. Finally, he said he wanted to strike all the hearsay “based on her going to say that she said those things, and now she’s already said that she didn’t.”
The trial court tried to get defense counsel to be more specific as to what evidence was objectionable. Defense counsel replied: “Well, everything that she has testified to or said [or] said in the examinations with the interviewer . . . .” The trial court said it was going to deny the request and allow defendant to conduct cross-examination because the objection was premature. The trial court stated defendant could renew the objection after N. was cross-examined. Later, defense counsel informed the court it would not be cross-examining N. The hearsay objection was not renewed.
B. Hearsay Objection Was Waived
Defendant argues the MDIC recordings should have been excluded because the trial court conditionally admitted them on the prosecutor’s assertion they would be admissible as either prior consistent or inconsistent statements, but the prosecutor failed to establish their admissibility as such. He claims the statements were not admissible as prior inconsistent statements because N. could not remember many incidents, and the statements were not admissible as prior consistent statements under Evidence Code section 791 because there was no implied claim that her trial testimony was fabricated or influenced by bias.
The People argue defendant’s failure to obtain a final ruling on the admissibility of the MDIC recordings results in a waiver of the issue on appeal. We agree that the issue on appeal is waived for two reasons.
First, where the trial court reserves judgment on the admissibility of evidence, and the defendant thereafter fails to specifically object, any claim of error is waived on appeal. (People v. Wash (1993) 6 Cal.4th 215, 258.) A tentative evidentiary ruling does not preserve the issue for appeal if the appellant could have, but did not, renew the objection and press for a final ruling. (People v. Holloway (2004) 33 Cal.4th 96, 133.) “‘“‘Where the court rejects evidence temporarily or withholds a decision as to its admissibility, the party desiring to introduce the evidence should renew his offer, or call the court’s attention to the fact that a definite decision is desired.’”’ [Citation.]” (Ibid.) Likewise, a party desiring to exclude evidence should renew its objection and seek a definite decision after the court rules the objection premature.
Here, the trial court told defense counsel the motion to exclude the MDIC interviews was premature because the witness had not been cross-examined, and allowed defendant to raise the objection later. When defense counsel informed the court he would not cross-examine N., he did not renew the hearsay objection and obtain a ruling, thus waiving the claim of error on appeal.
Second, defendant’s blanket objection to the entire recording was not a valid objection because he did not specify the statements to which he was objecting. (Ballos v. Natural (1928) 93 Cal.App. 601, 608.) We agree that N.’s prior consistent statements were hearsay and that her failure to remember certain details was not inconsistent with her earlier statement recounting those details. However, her prior inconsistent statements were admissible, and defendant’s general objection to the whole of her prior statement was not a valid hearsay objection.
A party objecting to evidence must not only specifically state the grounds for the objection, but also must direct the objection to the particular evidence properly sought to be excluded. (People v. Harris (1978) 85 Cal.App.3d 954, 957.) Furthermore, “it is settled law that where evidence is in part admissible, and in part inadmissible, ‘the objectionable portion cannot be reached by a general objection to the entire [evidence], but the inadmissible portion must be specified.’ [Citations.].” (Ibid.)
The trial court attempted to focus defense counsel on the specific evidence he found objectionable, but defense counsel insisted all of N.’s prior statements should be excluded. Defendant cannot rely on such a general objection, and his objection to the portions of N.’s statement on hearsay grounds, when some of the statements were clearly admissible inconsistent statements, is deemed waived. (Ballos v. Natural, supra, 93 Cal.App. at p. 608.)
C. MDIC Recordings Did not Deny Right to Confront Witness
Defendant argues the MDIC recordings should have been excluded because N.’s “large memory lapse” denied him the right to a meaningful and effective cross-examination and violated his right to confrontation. Preliminarily, we strongly disagree with defendant’s characterization of N.’s memory loss. Contrary to defendant’s assertion, N. claimed memory loss very few times during her trial testimony, and most of her inability to remember related to details such as how many times something happened or what she was wearing at the time. Thus, for the most part, her testimony was either consistent with her earlier statements or inconsistent with them.
Even if N.’s memory loss at trial had been more substantial, defendant’s argument fails for two reasons. First, loss of memory provides no basis for a confrontation clause argument. Second, he cannot assert he was denied the right to confront witnesses when he chose not to exercise the right.
Crawford, supra, the United States Supreme Court’s recent decision analyzing the constitutional right of confrontation and the case on which defendant relies for his assertion that the MDIC recordings were testimonial statements, stated without equivocation that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements[,]” and “[t]he Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford, supra, 541 U.S. at p. 59, fn. 9 [158 L.Ed.2d at p. 197].)
In U.S. v. Owens (1988) 484 U.S. 554 [98 L.Ed.2d 951], the court held that the Confrontation Clause is not violated by the admission of an out of court statement where the declarant testifies at trial, even if the declarant is unable to recall the events that are the subject of the statement. The court explained that “the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.” (Id. at p. 560 [at pp. 958-959].) Quoting an earlier concurrence by Justice Harlan, the court stated, “‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.”’ [Citations.]” (Id. at p. 559 [at p. 957].)
Furthermore, because defendant declined to cross examine N., he cannot now claim he was deprived of the right to confront her at trial. “One who does not attempt to exercise his right of confrontation cannot successfully claim a deprivation of that right.” (In re Deon D. (1989) 208 Cal.App.3d 953, 964, disapproved on another ground in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2 & pp. 983-984, fn. 13.) Defendant’s right to confront the witnesses against him was not violated.
II
Threat Instructions Were Correct
Defendant argues the trial court had a duty to sua sponte instruct the jury that threats from a third person must have been conveyed to the third party by the defendant with the specific intent that the threat be conveyed to the victim. The trial court had no such sua sponte duty in this case because there was evidence defendant himself used force, violence, duress, menace, or fear of bodily injury in accomplishing the offenses, and the prosecution never asserted, nor was evidence presented, that defendant threatened N. through a third party.
Defendant was charged with aggravated sexual assault of a child (§ 269, subd. (a)), forcible acts of sexual penetration (§ 289, subd. (j)), and making criminal threats (§ 422). The trial court instructed the jury pursuant to CALJIC Nos. 10.00 (rape), 10.10 (unlawful oral copulation by force or threats), 10.30 (forcible acts of sexual penetration), 10.50 (forcible acts of sexual penetration with person under 14 years), and 9.94 (criminal threats).
A. Criminal Threat Charge
Section 422 provides:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
This court has interpreted the language of this section to include circumstances where the threat is delivered through a third party intermediary selected by the defendant. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) However, the statute is not violated unless the defendant specifically intends the threat to be conveyed to the victim. (Ibid.)
Defendant points to the above principles, set forth in In re David L., supra, to support his argument that the sua sponte instruction regarding intent should have been given. Specifically, he argues the trial court should have instructed: “As to evidence of threats made by others, unless you find that appellant initiated the threat with the specific intent that it be conveyed to the recipient, you may not rely on this as evidence of force, menace, duress or threat to retaliate.” Defendant never requested this instruction be given, and under the circumstances of this case the trial court had no sua sponte duty to give the instruction.
The evidence that defendant claims gave rise to the trial court’s sua sponte duty consisted of testimony by N.’s mother, T., about an incident that happened after N. reported the abuse. N. told her father (defendant’s son) what defendant had done, and the father threatened to take N. to Mexico if she did not keep her mouth shut. He also told her he would kill her mom and her family. No evidence was presented that this threat originated with defendant.
The trial court must instruct the jury on the general principles of law that are closely connected to the facts of the case and are necessary to the jury’s understanding of the case, even in the absence of a request by the defendant. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The proposed instruction speaks to the defendant’s intent, and directs that when a defendant initiates a threat to a third party who then conveys the threat to the victim, the jury must find the defendant intended the threat to be so conveyed. Here, there was no evidence defendant initiated a threat that was conveyed to the victim by a third party. Therefore, there was no need to instruct the jury that defendant must have had the requisite intent in making the threat. The proposed instruction had no connection to the facts of the case, and the trial court did not err in failing to give the instruction sua sponte.
B. The Remaining Charges Involving Force or Threats
As to the aggravated sexual assault charges, the jury must find that the sexual act was “accomplished” by means of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” (§ 261, subd. (a)(2).) Clearly, the father’s threats to N. after the fact could not have been relevant to these charges.
Moreover, the basis for defendant’s argument is his claim that the prosecutor referred to the father’s threats in the context of the aggravated sexual assaults. The prosecutor made no such reference.
The prosecutor’s arguments were directed to the trial court’s rape instruction. That instruction was, in pertinent part, as follows:
“Every person who engages [in] an act of sexual intercourse with another person who is not the spouse of the perpetrator accomplished against the person’s will by means of force[,] violence[,] duress, menace[,] or fear of immediate and unlawful bodily injury to that person, or to another person is guilty of the crime of rape. . . . Menace means any threat[,] declaration[,] or act that shows an intention to inflict an injury upon another. [¶] Duress means a direct or implied threat o[f] force, violence, danger or retribution sufficient to [coerce] a reasonable person of ordinary susceptibilities to perform an act which she would not otherwise have performed or to acquiesce in an act . . . to which she otherwise would not have submitted.
The total circumstances including, but not limited to the age of the alleged victim, his or her relationship to the defendant[, t]hreats to harm the victim[, p]hysically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the . . . perpetrator[’s] conduct would result in jeopardizing the safety of the victim or the victim’s family are factors to consider in appraising the existence of the duress.”
The prosecutor made the following argument in an attempt to tie the court’s instruction to the evidence.
“And then the judge defined duress[:] an implied or direct threat of force[,] violence[, danger, or] retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which she would not otherwise have performed or acquiesce to an act which she would not otherwise have committed.
The total circumstances including, but not limited to[,] the age of the alleged victim. This is a three year old and her grandpa[,] a four year old and grandma (sic), a five year old and grandma (sic).
Her relationship to the defendant. It’s her grandfather. Threats to harm the victim.
Listen to her tapes. He was gonna hurt her if she talked. He hit her with a belt if she told. He threatened her. And warnings to the victim that revealing the perpetrator[’]s conduct would result in jeopardizing her safety and her family[’s] safety.
Again look at the video tapes to hear those threats that’s where they’re clearest. The fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances.
Watch her on the video show you the scars she had. Look at the bruises she had on her body.
Menace says any threat declaration or act that shows an [intention] to inflict injury on another.” (Italics added.)
Defendant points to the italicized language as proof the prosecutor was referring to the threats N.’s father made to her. However, in context it appears this language was merely the prosecutor’s repetition of the portion of the jury instruction defining duress. The prosecutor followed this recitation by directing the jury to look to the video of the MDIC interview as evidence of the threats. She did not mention the father’s threats to N.
III
No Sentencing Error
Defendant argues he was improperly sentenced to a consecutive term of 12 years on count 47, which alleged three or more acts of lewd or lascivious conduct against A. pursuant to section 288.5, subdivision (a). Defendant claims the sentence was in error because the reporter’s transcript reflected he was found not guilty on count 47, even though the verdict form and minute order both reflect a finding of guilty.
A corrected reporter’s transcript has been filed with this court, indicating the verdict on count 47 was guilty. There was no error in sentencing.
IV
The Evidence Was Sufficient to Support Conviction on Count 47
Count 47, the only offense alleged to have been committed against A., claimed that defendant violated section 288.5, subdivision (a) by engaging in three or more acts of lewd or lascivious conduct upon a child under the age of 14. Section 288.5 provides in pertinent part:
(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of . . . lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”
Defendant argues there was insufficient evidence to convict him on this count because the evidence against him was inherently improbable. We disagree.
A. Evidence Relating to Count 47
The evidence relating to count 47 was from N.’s trial testimony, her MDIC recordings, and expert testimony. At trial, N. testified that defendant touched A. five times, but that she only saw him do it three times. It happened in defendant’s room, when A. was a baby, “[a]nd one, until she got older.” When this happened A. had on a shirt, but defendant took off her diaper. Defendant had on a shirt, but he pulled his pants down around his ankles. N. said, “He was touching her just like me. . . . He was touching her with his privates. . . . In her privates.” A. tried to get away, but she could not. She was turning and turning, but he still held on to her hips. A. was on the bed with her legs off of the bed and opened. Defendant also touched A. with his hands on her “private areas,” and put his penis in her buttocks. He also made A. hold his penis more than once.
During the MDIC interviews, N. stated that she loved A. and that defendant did to her little cousin, who was one-year-old, the same things he did to her. She said he “did” A. first, “and then he did me, and then he did me first and then he did her second and then he did her first and then he did me . . . . [¶] He did the same thing that happened to me. . . . [¶] Everything I told you that happened to me . . . happened to [A.] . . . . [¶] He took off all her clothes and he put his private, he slammed her a little bit and her mom was mad, mad, mad.”
N. said A.’s mom knew because N. told her the same things she told the cop and the same things she told the interviewer. When she told A.’s mom, A.’s mom spanked defendant harder than he spanked N.
Cathy Boyle, a nurse practitioner who specializes in treating children with a history or suspected history of sexual abuse, testified that the hymen of a 23-month-old girl looks more like that of a girl going through puberty because they still have estrogen left over from their mothers, and because the body makes estrogen for a couple of years. A 23-month-old’s hymen would be a little less sensitive, but would still be uncomfortable for the child to have it touched. She stated that some younger kids would actually allow manipulation of the hymenal tissue without moving or making any sound, even though it was obviously uncomfortable for them. These are generally younger kids, from 18 months to two and one-half, and often there is no clear history of what happened to them.
Dr. Kevin Coulter testified that a child might be able to refrain from yelling out if someone inserted his penis into her vagina, but it would be difficult because it hurts.
B. Defendant’s Arguments
Defendant first points to the following evidence to support his argument that N.’s testimony was inherently improbable and physically impossible. N. said that defendant assaulted A. all of the times he assaulted N., but she also said defendant began molesting her (N.) when she was one-year-old. Because N. is four years older than A., if defendant began molesting N. when she was one, it would have been impossible for him to have also molested A., since A. was not yet born.
The relevant evidence was from the MDIC recordings. The interviewer asked, “Have you seen him do it to [A.]?” To which N. replied, “All I know is because I seen him do it, all the times he does it to me are all the times he does it to her.”
Sharon, N.’s maternal grandmother, testified that N. uses the same expressions she uses, and that when she says “all the time” it might not really mean all the time, depending on what she is talking about. Sharon said she might say N. visited her grandparents “all the time,” but really only mean “whenever she goes over there.” N.’s testimony was not inherently improbable and physically impossible, because the jury could have reasonably assumed that when a five-year-old child said that he did it to A. “all the times” he did it to me, she did not literally mean every time, but, like her grandmother, meant every time she was at defendant’s house.
The jury also heard the testimony of Dr. Anthony Urquiza, a psychologist specializing in abused children. He stated that children who have been abused multiple times make mistakes about such things as where, when, and how long their abuse occurred. Thus, the jury may also have assumed that while it seemed to N. that defendant molested A. every time he molested N., she was mistaken in that perception. Nevertheless, the jury could have reasonably concluded from the evidence that defendant molested A. at least three times over a period of three months.
Defendant also points to the fact that N. described penetration of an infant when she said that defendant put his “privates” in A.’s “privates,” yet there was no medical evidence of any harm to A.
Dr. Coulter testified that he had performed around 2,000 examinations of children having a history of sexual contact, or for whom there was a concern of sexual contact, and consulted on at least that many more. He stated that the majority of those children had normal findings. He testified that good, reputable studies have found that 80 to greater than 90 percent of exams are normal, even where there is a very good history of sexual abuse.
Nurse Boyle testified that the exams of very few children have findings of sexual contact, and that the literature on this topic says that 95 percent of children have normal exams when they actually have had something happen to them. Thus, the exam is more likely to be normal than abnormal, even when abuse is present. Genital injuries heal very quickly. Some heal in as little as 24 hours, and by one to three weeks they are completely healed.
Thus, a normal finding on A.’s exam did not render the remaining evidence inherently improbable or physically impossible.
Defendant argues N. described brutal actions against A., slamming her resulting in dripping blood, and inserting a hammer into her vagina. He argues such abuse should have revealed some type of finding for a one-year-old infant.
The dripping blood incident defendant refers to came up in the second of the two MDIC interviews. N. described an incident where her grandmother, defendant’s wife, was trying to call the police, but defendant was taking the phone away. N. said she and A. were trying to call 911, but defendant was grabbing the phone, and her grandfather “looked at her face and she had like, all, all up here, and all red, blood, just . . . blood dripping. My abuelita, me and [A.].” The interviewer asked whose face had blood dripping all over it, and N. replied, “Mi mami.” Later, N. explained her abuelita had to go to the doctor to show the doctor her face. Thus, it was N.’s grandmother, not A., who was hit so hard she had blood dripping on her face.
As for the testimony about the hammer, N. never claimed defendant inserted a hammer in A.’s vagina. N. stated in the MDIC interview that defendant pushed a hammer into her (N.’s) “privates.” She later said defendant got toy hammers for her and A., but never claimed defendant molested A. with a hammer, toy or otherwise.
Defendant argues N.’s testimony that she and A. tried calling 911 is inherently improbable because one-year-old children are incapable of calling 911. It is unclear when this incident happened, so A. could have been older than one year. If it occurred around the time N. reported the abuse in April, 2004, A. would have been almost two years old. In any event, it is a reasonable assumption that N. was trying to relate that she and A. were together, and she was trying to call 911, whether or not A. was actively doing the same.
Finally, defendant argues it is inherently improbable that A.’s mother knew about the assaults, but did nothing other than get mad and hit defendant. This argument assumes N. told A.’s mother at an earlier point in time than the evidence indicates.
In the MDIC interview, N. was asked what she told A.’s mother. She replied: “That he did the same thing that she, that he did to me, and told the questions that happened to [A.] and me. She was mad at her dad.” The interviewer asked N. what she said to A.’s mother, and N. replied, “I said the same things I was saying to you and to the cop I said to her.”
Defendant’s interpretation of this statement is that A.’s mother knew about the offenses as they were happening, but did nothing to stop them. However, the more reasonable interpretation of the above statement is that A.’s mother did not find out until N. reported the incidents to the police, because she told A.’s mom “the same things I was saying to you and to the cop . . . .” Thus, by the time A.’s mother found out what was happening, defendant had already been reported to the police, and there was nothing for A.’s mother to do except get mad at defendant.
There was credible evidence supporting the conviction relating to A., and the evidence was not inherently incredible or physically impossible.
V
Failure to Instruct With CALJIC No. 2.72
Defendant claims the trial court erred when it failed to instruct the jury pursuant to CALJIC No. 2.72. CALJIC No. 2.72 instructs the jury that a person cannot be convicted of a crime unless there is some proof of each element of the crime independent of any admissions the defendant has made outside the trial. The instruction must be given sua sponte when applicable. (People v. Beagle (1972)6 Cal.3d 441, 455, superseded by constitutional amendment on other grounds as stated in People v. Castro (1985) 38 Cal.3d 301, 307-313.)
The omission to which defendant claims the instruction was applicable was defendant’s admission to N. that he had molested A. two times when N. was not present. The evidence was admitted during N.’s trial testimony. After N. testified that defendant had touched A., the following exchanged occurred:
“Q: How many times did it happen to [A]?
A: Five.
Q: Did you say five times?
A: Two times, I missed.
Q: So you saw three times?
A: Yes.”
Later, N. was asked if she saw all three times with A., and she replied that she had. Then she was asked, “How come you know there are two other times?” She answered, “[h]e told me.” She then clarified that the “he” was defendant, and said he told her he did not want her to tell because he did not want to get in trouble. He said that if she told, he would want to do it to her (N.) more.
The failure to instruct with CALJIC No. 2.72 is not reversible error if the corpus delicti is established independently of admissions. (People v. Beagle, supra, 6 Cal.3d at pp. 455-456.) In this case the violation of section 288.5, subdivision (a) was established independently of defendant’s admission because that offense requires only three or more acts of lewd or lascivious conduct, and N. testified she saw defendant molest A. three times. Thus, the violation was established by N.’s eyewitness testimony, not by defendant’s admission.
Defendant attempts to argue error by misconstruing N.’s testimony. He contends that when N. said, “Two times, I missed” she was saying that she knew of only two occurrences, not five. He argues N. was then fed the answer that he had done it three times. This is an unreasonable interpretation of the transcript for two reasons.
First, if N. had implied by her tone that “I missed” really meant, “I made a mistake” rather than “I missed seeing two of the times he molested her,” then defense counsel would have objected when the prosecutor clarified that N. saw three times. Second, N. later clarified that when she saw defendant molest A., it happened in the bedroom, “but the two times I didn’t know because I wasn’t there.” The prosecutor then asked, “but the three times you did know were in the bedroom?” N. responded, “[y]es.”
Because the corpus delicti of the offense was established independently of defendant’s admission, the error in failing to give the instruction was harmless.
VI
Failure to Give CALJIC No. 2.71
Also with reference to N.’s claim that defendant told her about two other times he had molested A., defendant argues the trial court erred in failing to sua sponte instruct the court with CALJIC No. 2.71. CALJIC No. 2.71 instructs the jury to view evidence of an alleged admission with caution.
The People concede error, but argue the omission was harmless. We agree. The standard of review for the erroneous failure to give the instruction is: whether it is reasonably probable the jury would have reached a result more favorable to the defendant had the instruction been given. (People v. Dickey (2005) 35 Cal.4th 884, 905.)
The Supreme Court has stated that the purpose of CALJIC No. 2.71 is to help the jury to determine whether the statement was in fact made. Because of this purpose, when determining prejudice, courts look to see whether there is any conflict in the evidence about the exact words used, or their meaning, or whether they were repeated accurately. (People v. Dickey, supra, 35 Cal.4th at p. 905.) Where the defendant simply denies he made the statement, the failure to give the instruction is usually harmless. (Id. at p. 906; People v. Wilson (2008) 43 Cal.4th 1, 19.)
In this case, defendant denied ever being alone with either N. or A. He testified that nothing N. said happened actually happened. He specifically denied ever touching N. or A. in an inappropriate way. Given his denials, the real issue was whether N. was a credible witness, not whether she relayed his exact words or meaning.
Even though the trial court failed to give CALJIC No. 2.71, it thoroughly instructed the jury on evaluating the credibility of a witness. It instructed the jury that prior consistent or inconsistent statements could be considered for determining credibility. (CALJIC No. 2.13.) It instructed the jury that it was the judge of the witness’ believability. (CALJIC No. 2.20.) It gave specific instructions in evaluating the testimony of a child, and that a child is not because of its age and cognitive development any more or less believable than an adult. (CALJIC 2.20.1.) It gave CALJIC No. 2.21.1, on how to treat discrepancies in testimony. It instructed the jury to give the testimony of a single witness whatever weight it was deemed by the jury to deserve, and to carefully review all of the evidence upon which the proof of the fact depended. (CALJIC No. 2.27.)
Additionally, during closing argument, both the prosecutor and the defense counsel pointed out that the case turned on whether the jury believed N. The prosecutor told the jury:
“The first thing I want you to understand is in this case[,] as I said from the beginning, you have the word of a five year old. She’s now six. You had to listen to her and evaluate what she had to say and whether you believed it.”
Defense counsel pointed out the inconsistencies in N.’s testimony and urged the jury to look on her testimony with skepticism because of the lack of any corroborating physical evidence:
“You have to be critical of everything [whether] it’s Sara [defendant’s wife], the defendant, [N.], [T.], Sharon [N.’s maternal grandmother], everyone that testifies. [¶] You need to be critical[,] thinking critically [of] what they say. What backs up what they said. . . .
Don’t give her [N.] a break unless she’s entitled to it. And when you see the number of times that she changes her story, you have to do the same thing you would do with any other witness, and that’s disregard her testimony.
Be very skeptical of it.”
Because of the instructions given, trial counsel’s arguments, the fact that defendant flatly denied the charges, and the unquestioned circumstance that the entire case turned on the believability of N., the jury was aware that it should view her testimony with caution, and it is not reasonably probable that it would have reached a more favorable verdict had the instruction been given.
We also reject defendant’s federal constitutional due process argument regarding the harmless instructional errors. “‘Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution. [Citation.] Failure to give the cautionary instruction is not one of the ‘“‘very narrow[ ]’”’ categories of error that make the trial fundamentally unfair. [Citation.]’ [Citation.]” (People v. Dickey, supra, 35 Cal.4th at p. 905.)
VII
Jury Correctly Found Multiple Victims
Section 667.61 provides for a 15-year-to-life sentence for a defendant convicted of a qualifying felony sex offense against more than one victim. (Id. at subds. (b) & (e)(5).) The jury found true the allegation that defendant committed an offense against more than one victim.
Citing his previous arguments for reversible error as to count 47, alleging three or more lewd or lascivious acts against A., defendant argues the true finding as to multiple victims should be reversed. We have found no reversible error with respect to count 47. Therefore, the true finding remains valid.
VIII
CSAAS Evidence was Properly Admitted
Dr. Urquiza testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). He stated that of the children who are sexually abused, 90 percent have an ongoing relationship with their abuser. He described behaviors that are common to abuse victims: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction.
In her opening statement, the prosecutor told the jury that there would be limitations placed on the evidence presented by Dr. Urquiza. She stated that the jury would have to find N. was sexually abused before considering his testimony. The trial court instructed the jury with CALJIC No. 10.64, which told the jury that it must not consider the evidence of CSAAS as proof of the truth of the victim’s molestation claim. The court instructed, “[y]ou 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.” In closing argument, the prosecutor told the jury that the most important thing about the CSAAS evidence is that “you can’t even consider this evidence unless you have also concluded that she was molested.”
Defendant acknowledges that California law allows the admission of CSAAS evidence to rehabilitate the victim’s credibility where the issue of credibility is raised. Use of such evidence is not limited to rebut defense attacks on the victim’s credibility, but may be used in the prosecution’s case-in-chief where, as here, the victim’s credibility is at issue because of delayed reporting, or partial retraction of earlier statements. (People v. Housley (1992) 6 Cal.App.4th 947, 956.) Defendant argues this court should adopt the rule followed in three other states holding such evidence inadmissible for any purpose.
We decline defendant’s invitation to go against established authority as set forth by the courts of this state. The Supreme Court has recognized that CSAAS testimony “‘is admissible to rehabilitate [a complaining] witness’s credibility when the defendant suggests that the child’s conduct after the incident--e.g., a delay in reporting-- is inconsistent with his or her testimony claiming molestation.’” (People v. Brown (2004) 33 Cal.4th 892, 906.) Numerous courts of appeal, including this one, have likewise held the evidence admissible to disabuse the finder of fact of “common misconceptions it might have about how child victims react to sexual abuse.” (In re S.C. (2006) 138 Cal.App.4th 396, 418; see also People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Housley, supra, 6 Cal.App.4th at p. 955; People v. Archer (1989) 215 Cal.App.3d 197, 205, fn. 2; People v. Sanchez (1989) 208 Cal.App.3d 721, 735, criticized on other grounds in People v. Jones (1990) 51 Cal.3d 294, 311; People v. Bowker (1988) 203 Cal.App.3d 385, 392.)
The trial court did not err in admitting the CSAAS evidence.
IX
Consecutive Sentences did not Violate Sixth Amendment
The trial court sentenced defendant to seven consecutive terms on each of the section 269, subdivision (a) convictions. Section 269 mandates consecutive sentencing where the offenses involve separate victims or the same victim on separate occasions as defined in subdivision (d) of section 667.6. The trial court indicated on the record that it was imposing consecutive sentences because the crimes were separate, and occurred at different times and different places.
Section 667.6, subdivision (d) provides in pertinent part, that the court 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” in determining whether crimes against a single victim were committed on separate occasions.
Defendant contends the imposition of consecutive sentences violated his Sixth and Fourteenth Amendment rights as determined in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). This claim is without merit.
Any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and found beyond a reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455].) The “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In People v. Black (2005) 35 Cal.4th 1238, 1261-1262 (Black I), the California Supreme Court rejected the defendant’s claim that consecutive sentencing pursuant to section 669 violates Blakely. The court stated that under section 669, the judge must direct whether the sentences for two or more crimes are to run consecutively or concurrently, and that if the court fails to specify either, the sentence runs concurrently. (Ibid.) The court reasoned that Blakely’s underlying rationale is inapplicable to the imposition of consecutive sentences. Sentence enhancements are treated as the functional equivalent of a greater crime, the factual predicate of which is treated as an element of the greater offense and therefore subject to the defendant’s right to jury trial. (Id. at p. 1263.) However, consecutive sentences are authorized by the jury’s verdict finding the defendant guilty of two or more crimes, permitting the statutory maximum sentence for each offense. (Ibid.)
Black I, supra, was overruled in Cunningham, supra, but in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court noted that “[t]he high court's decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.] Accordingly, we . . . conclude that [a] defendant's constitutional right to jury trial [is] not violated by the trial court's imposition of consecutive sentences . . . .” (Black II, supra, 41 Cal.4th at p. 823.)
The reasoning of Black I and II applies equally to consecutive sentences imposed under section 667.6 because, like consecutive sentences under section 669, the factual predicate that makes a defendant eligible for full term consecutive sentences under section 667.6 is found by the jury. Subdivision (c) of section 667.6 grants the trial court discretion to impose a full term consecutive sentence in lieu of the term provided in section 11701.1 for “each violation of” a predicate offense “if the crimes involve the same victim on the same occasion.” (§ 667.6, subd. (c).) Subdivision (d) of section 667.6 makes a full term consecutive sentence mandatory “for each violation of an offense specified in subdivision (e) if the crimes involve . . . the same victim on separate occasions.”
As the court in People v. Groves (2003) 107 Cal.App.4th 1227, 1230-1231 found, imposition of a full term consecutive sentence under section 667.6, subdivision (d) does not violate Apprendi/Blakely. Because imposition of such a sentence is discretionary under subdivision (c) of the section based solely upon the jury's verdict finding a defendant guilty of two predicate offenses against the same victim, mandatory imposition of the maximum possible sentence does not constitute an increase in the maximum possible sentence. (Ibid.)
Since defendant was convicted of committing two or more predicate offenses against N., he was eligible for consecutive sentences under the more stringent provisions of section 667.6, subdivision (d). We therefore hold that imposition of the mandatory consecutive sentences on the aggravated sexual assault charges (§ 269, subd. (a)) did not violate defendant's constitutional rights to due process and a jury trial.
X
Cumulative Error
Defendant argues that the cumulative effect of all the errors resulted in a miscarriage of justice. Having rejected most of defendant’s claims of error, and having determined that the two instructional errors were harmless, and not of federal constitutional magnitude, we conclude there is no merit in defendant’s claim of cumulative error.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., BUTZ, J.
“(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
(1) The statement is not otherwise admissible by statute or court rule.
(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
(3) The child either:
(A) Testifies at the proceedings.
(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.
(c) For purposes of this section, ‘child abuse’ means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and ‘child neglect’ means any of the acts described in Section 11165.2 of the Penal Code.”