Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF049826
Lambden, J.
Anthony Wayne Myers appeals from the judgment issued after jury trial finding him guilty of 28 counts of sexual offenses and sentencing him to 46 years and 4 months to life, arguing trial court error, insufficient evidence for certain convictions, and sentencing mistakes. We affirm in part, reverse in part, vacate certain sentences, and remand for further proceedings consistent with this opinion.
BACKGROUND
Defendant was tried in Del Norte County Superior Court on 28 counts involving lewd acts with a child, rape, oral copulation, and penetration with a foreign object, allegations of three prior prison-term commitments and a multiple-victim enhancement. The trial focused on defendant’s conduct toward his girlfriend’s daughter and two of her friends in 2003 and 2004.
The Prosecution’s Evidence
Testimony of Christina W.
Christina W. was 16 and in the tenth grade at the time of the trial. She testified that on Easter 2003 defendant, an adult male, came to the residence where she lived with her mother and brother, looking for friends who had previously lived there. Defendant stayed the night, soon became her mother’s boyfriend, and lived with the family thereafter, except that he was gone in June 2003 for a couple of months and from December 2003 through February 2004. He took over the disciplining of Christina and her brother. He grounded Christina for smoking marijuana, skipping school, and having a “smart mouth” with her mother.
We refer to Christina W. as Christina to avoid confusion with her friend C.W., whose testimony we also discuss.
The parties stipulated that defendant was at least 10 years older than Christina and her friend B.H., whose testimony is discussed, post.
Defendant quickly began engaging in inappropriate and unwanted behavior. He began to stand in the doorway of Christina’s bedroom every night, watch her sleep, and “play with himself.” Two weeks after he started staying at the residence, defendant began coming into her room, touching her breasts, and masturbating. This happened “all the time,” and “every night.” At some point, defendant also began to touch Christina’s “butt,” touch and suck her breasts, and rub her vagina with his fingers, masturbating while doing so. He sucked on her breasts “more than 50 times,” and rubbed her vagina “more than 10 times.”
Every couple of months, defendant offered to ease his disciplinary restrictions if Christina agreed to have sex with him. One night in July 2004 she “woke up to him inside [her],” which incident we discuss in further detail in part III, post. Subsequently, Christina woke up to find defendant touching her vagina and moaning. He said he wanted “to finish what he did in July,” and Christina said she would think about it so that he would leave her room. Defendant returned 30 minutes later and said he was “gonna rub his penis up against [her] vagina.” He grabbed her by the arms, forced his penis inside her vagina, and told her to “let it happen.” He then “actually went through—all the way.”
Christina was too embarrassed to tell her friends about defendant’s abuse. As for defendant’s actions toward her friends, one night in the summer of 2004, defendant served alcoholic drinks to her and her friend, B.H., who passed out on the couch. When another friend, C.W., was staying the night once, Christina woke up to hear C.W. scream that defendant was a pervert.
At one point, Christina told defendant she would report him to his parole officer. Defendant answered that her friends and family would “get rid” of her quickly. She also told her mother, Ann W., about defendant’s actions, but she did nothing.
After Christina heard about B.H.’s claims about defendant, Christina told a detective falsely that she had never been molested. She did not tell anyone about defendant’s actions until after defendant was arrested. After she had told police about defendant’s actions, her mother asked her to write a letter stating that she had lied.
Testimony of Ann W.
Christina’s mother, Ann, testified that she had been convicted of conspiracy to dissuade Christina’s testimony. In a letter from jail, defendant had asked her to talk to Christina, stating that “we need a letter from her,” that defendant feared going to trial, and that they needed to “get her to drop this.” Ann was on probation at the time of her testimony.
Christina had been put on restriction for sneaking out at night, for smoking marijuana, and for having people in the house when no one was home. Christina had lied to her about going into her purse and room, and had once stolen Ann’s marijuana. Christina was accustomed to getting her way before defendant moved into the house.
Christina did not tell Ann of defendant’s actions, and Ann never saw defendant strike or abuse either of her children. Defendant had wanted to leave several times because Christina was unruly, but Ann persuaded him to stay.
As for Christina’s friends, C.W. had complained to Ann that defendant had touched C.W.’s leg, and Ann told C.W. she would talk to defendant about it. Ann, not defendant, had given Christina and B.H. alcohol the night B.H. stayed over.
Ann acknowledged that when police came to the house, she lied and told them defendant was not there at defendant’s request. She denied telling police that defendant admitted to sleeping with Christina, contrary to Detective Fleshman’s testimony, discussed post.
Testimony of C.W.
C.W. testified that she had been best friends with Christina since pre-school. She was 13 when she first spent the night at Christina’s residence. She woke up that night and found defendant “touching” her leg while he was watching “porn, masturbating, and moaning.” He got up and ran into the bathroom.
In July 2004, C.W. slept over again, in Christina’s bedroom. She was awakened by defendant, who was touching her leg. She called him a pervert and told him to get out, and he left the room. Within seconds, defendant returned and said, “oh yeah, turn off your stereo.”
Defendant was not charged with any crimes for his actions regarding C.W.
Christina’s mother asked her the next day why she had called defendant a pervert, and C.W. told her he had been touching her leg. Ann said “no,” and said defendant had entered the room to tell the girls to turn off the radio.
Testimony of B.H.
B.H. testified that she was 17 and a junior in high school. She met Christina in high school, and spent the night at Christina’s residence every couple of weeks in 2003 and 2004.
Defendant had made B.H. uncomfortable because of the way he looked at her “butt.” He would touch her hands and comment that her boyfriend was not treating her right, and that she should “go out with someone like him.”
One night when she was sleeping over Christina’s, B.H. woke up to find defendant touching her leg while he massaged his genital area. He told B.H. that it was “natural.”
On another night in the summer of 2004, defendant gave B.H., then 16, an alcoholic margarita drink. B.H. fell asleep on the couch. She woke up to find defendant on top of her with his penis in her vagina. He told her that he had been waiting “a long time,” and not to worry because he had not “come inside” her. He also put his mouth on her vagina and said he “liked it.”
On another occasion in the summer of 2004, B.H. woke up to find defendant touching her breasts and masturbating.
Testimony of Detective Fleshman
Detective Ed Fleshman of the sheriff’s department testified that in August 2004, he interviewed B.H. and went to Ann’s residence to contact defendant. Ann told him that defendant did not live there, but kept his things there and happened to be out for a walk. With her consent, Fleshman searched the home and found defendant hiding under a mattress in one of the bedrooms.
Fleshman had at least two discussions with Ann about “the sex with her daughter,” once at the scene, and once when she was in custody. She told him the same thing each time, which was “that a couple of days before my meeting them, [Defendant] had come to her and told her that he’d had sex or slept with her daughter.”
Fleshman first talked with Christina in her room with the door open. Christina “didn’t really want to talk” to him. Her mother was “around,” and Christina was looking in her direction. She might have told him that defendant had not molested her at any time, but he was not sure. After her mother was taken into custody because of the case involving B.H., Fleshman spoke with Christina again, and Christina told him something had happened to her that was similar to the incident with B.H. that he was investigating.
Fleshman, who understood that in sexual assault cases evidence could not be recovered more than 72 hours after the assault, did not send Christina for physical examination because he understood from her initial disclosure that more than that time had passed, and he did not otherwise search for physical evidence. An investigator testified for the defense that certain efforts to obtain physical evidence would have been helpful. On rebuttal, a sexual assault response team (SART) registered nurse testified that he had received a call from Fleshman, who inquired whether an exam would be useful where the sexual assault occurred four to five days prior, and the nurse had replied that it “would not be beneficial.”
When Fleshman interviewed B.H. in August 2004, she said something like “I have a bad memory,” that she was “mixed up on some of this stuff,” and could not remember time periods. He also spoke to C.W., who told him defendant touched her leg and said he was turning down the radio.
Defendant’s Evidence
Testimony of Tara Aninbashaum and Douglas Walters
Tara Aninbashaum, a certified nurse’s assistant with children of her own, testified that approximately 14 years earlier, when she was about 12 years old, defendant lived with her and her mother on and off over a five year period when he was not in prison. Defendant was strict, but treated her well and with respect, and he was a good person. He was a father figure to her. In “a roundabout way,” defendant “saved her troubled life.” Aninbashaum’s friends would often stay over, and defendant never touched her or her friends inappropriately. Aninbashaum did not have problems with defendant watching over her own children.
Aninbashaum visited defendant when he was living with Ann She thought Christina was “totally out of control,” wearing skimpy clothes, having boys over all the time, and cursing her mother. She had not seen defendant treat Christina inappropriately. She also met B.H. twice, and noticed once that she seemed “extremely high on pills.”
Jeffrey Walters testified that one of his daughters was best friends with Christina. She stayed overnight at Christina’s residence “a couple of times,” and never complained about any misbehavior by defendant. In about October 2003, his daughter said she was going to stay at Christina’s residence, and Christina said she was going to stay at his residence. Walters drove around town looking for his daughter, and found the two girls in a trailer with two boys.
Testimony of Ronald Hibler
The defense presented Ronald Hibler, the parole agent responsible for supervising defendant in part of 2003 and 2004, to testify about defendant’s arrests that were referenced in his official parole records, apparently to establish when he was absent from Ann’s residence. Defense counsel also asked Hibler to confirm that defendant had no prior convictions for sexual assault or molestation. Hibler, first noting that he did not have a “federal rap sheet,” indicated there were no such convictions on defendant’s “California rap sheet.”
On cross-examination, the prosecution asked Hibler his opinion about prior sexual misconduct, his opinion of defendant’s character, the basis for that opinion, and whether certain prior crimes buttressed that opinion, to which the defense objected. The court’s rulings and this testimony are discussed further in part I, post.
Testimony of Defendant
Defendant testified that after he was released from prison in 2003 and evicted from a rehabilitation center, he went to Ann’s house because he knew acquaintances that had lived there. She allowed him to sleep on the couch while he waited for housing approval. Defendant fell in love with Ann, they became involved, and he sometimes stayed in the house
Among other things, defendant further testified that he was a brain aneurysm survivor, and that one of his parole violations “about three years ago” was because he traveled to Baltimore without permission for surgery related to his aneurysm. He also testified that when he was at Ann’s residence, he was economically self-sufficient.
Defendant described a home in chaos. Ann took antidepressants and “kept having nervous breakdowns.” Christina asked him to have Ann “put away.” There were teenagers “all up in the house.” Ann’s purse was not safe, and Christina’s friends would take her clothes. Defendant made the teenagers leave the house, eventually restricted Christina to her room because she was “really out of hand,” grounded her for cursing at Ann, and disciplined her for climbing out of her window, throwing things at her mother, and using profanity. Christina wanted defendant out of the house because he restricted her and because she felt he was taking her mother away. However, Ann had lost her job, and defendant could not move.
B.H. sometimes came to the residence when she was “too high” to go home. Defendant did not tell B.H. that he did not like her boyfriend. Defendant had margaritas with Christina and B.H., but the drinks did not contain alcohol and he did not see the girls until the next morning. B.H. called him in August 2004, and told him she had a dream in which he was on top of her.
As for C.W., defendant was once in bed when he heard Christina’s radio alarm. He banged on the door of Christina’s room, opened the door, and kicked C.W.’s foot as she slept on the floor. After C.W. called him a pervert, he closed the door and went back to bed.
Defendant never touched Christina, B.H., or C.W. He never entered Christina’s room because it was “too dirty and nasty.” He hid from the police when they came to the residence in August 2004 because he was not sure who was there, and wanted to find out what was going on before he went to jail. He wrote letters to Ann after his arrest, but they were love letters being taken out of context, and Christina’s charges against him were untrue.
Testimony of Prosecution Rebuttal Witnesses
Hibler testified that during defendant’s stay at Ann’s residence, he observed defendant driving a vehicle without a license, and defendant attempted to evade him. A subsequent search of the residence revealed a marijuana pipe in the master bedroom, and defendant’s urine sample tested positive for marijuana.
Ann’s sister, Elizabeth B., testified that Christina and her brother were living with her at the time of the trial. Christina was not a discipline problem and was well behaved. Elizabeth B. never caught Christina lying.
Douglas W., Ann’s son and Christina’s brother, testified that defendant was telling Christina and Douglas what to do and when to be home within a few weeks of moving in. Defendant found ways to ground Christina, sometimes for things she did not do. Defendant said “about 10 times” that Christina had a good body and could “get any guy she wanted.” Christina did not use profanity around Ann. Defendant had pornography DVDs, would drink when they went to the river, and also gave marijuana to Christina. On the day he was arrested, defendant finished a phone call, said he had to leave, went out the back door, came back inside, and went into Douglas’s room. Douglas conceded that he had “kind of enjoyed [his] freedom” before defendant arrived, and that he did not hear C.W. yell that defendant was a pervert, although he would have heard it.
The Verdict and Sentence
The jury found defendant guilty of 28 counts. Regarding Christina, he was found guilty of 20 counts of lewd acts with a child (Pen. Code, § 288, subd. (c)(1)), two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)), and sexual penetration by a foreign object with a person under 16 years of age (Pen. Code, § 289, subd. (i)). Regarding B.H., defendant was found guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)), rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)), oral copulation of a person under the age of 18 years (Pen. Code, § 288, subd. (b)(1)), and unlawful sexual intercourse with a person under 18 years of age (Pen. Code, § 265.1, subd. (c)). The jury also found true the multiple victim allegation (Pen. Code, § 667.61) and that defendant had three prior convictions (Pen. Code, § 667.5, subd. (b)).
The trial court imposed a state prison term of 46 years and 4 months to life, the details of which we discuss further in part V, post. Defendant subsequently filed a timely appeal.
DISCUSSION
I. Hibler’s Testimony is Not a Basis for Reversal
Defendant argues that the trial court committed prejudicial error by permitting his parole agent, Ronald Hibler, to testify about defendant’s character based on improper references to his purported past conduct and criminal history referred to in certain documents.. This is incorrect.
The trial court has broad discretion to admit opinion evidence. We review the court’s determinations under an abuse of discretion standard. (See People v. Farnam (2002) 28 Cal.4th 107, 153-154; People v. Maglaya (2003) 112 Cal.App.4th 1604, 1609.)
Character evidence is admissible pursuant to Evidence Code section 1100, which provides in relevant part that “[e]xcept as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion . . . and evidence of specific instances of such person’s conduct) is admissible to prove a person’s character or a trait of his character.” While Evidence Code section 1101, subdivision (a), generally limits the admissibility of character evidence, Evidence Code section 1102 provides that evidence of a defendant’s character or a trait of his character is not inadmissible if such evidence is offered by the prosecution to rebut evidence adduced by the defendant to prove his conduct in conformity with his character or a trait of his character.
Lay opinion testimony is governed by Evidence Code section 800, which states, “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.”
In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), our Supreme Court held that Evidence Code section 800 applies to testimony about character given pursuant to Evidence Code section 1102, stating “we now read” Evidence Code section 800 into section 1102. (McAlpin, at p. 1306.) The court focused on the statute’s reference to testimony rationally based on a witness’s own perceptions.
The Supreme Court noted that subdivision (b) of Evidence Code section 800 is not applicable to testimony given about character pursuant to Evidence Code section 1102. (McAlpin, at p. 1306, fn. 11.)
While the court did not specifically address the prefatory language in Evidence Code section 800 that allows testimony “in the form of . . . an opinion as is permitted by law, including but not limited to” opinion testimony rationally based on a witness’s own perceptions, (Evid. Code, § 800; italics added) its reading of section 800 into section 1102 indicates this language also applies to testimony about character.
A. The Prison Incidents Referred to in the Parole Records
Defendant first argues the court erred by admitting Hibler’s testimony that his negative opinion of defendant’s character was based on reports in his records that defendant engaged in acts of indecent exposure and public masturbation while in prison in 1996.
1. Trial Court Proceedings
The defense sought character evidence from Tara Aninbashaum, which the court made clear allowed the prosecution to introduce evidence of defendant’s bad character. Subsequently, defense counsel elicited testimony from Hibler that he was the custodian of defendant’s official parole records, which showed various dates when defendant was arrested and released in 2003 and 2004, and which did not show any prior convictions for sexual assaults or molestations. The prosecution did not object to the defense’s use of these records.
Nonetheless, when the prosecution sought testimony from Hibler about specific instances of sexual misconduct referred to in the records, the defense objected and a sidebar was held. Defense counsel raised a hearsay objection, to which the prosecution responded that “since [Hibler is] now qualified as an expert and he’s now got that C-file into evidence that something he’d used to render his opinion about it’s admissible.” The court stated that character is typically not proven by expert testimony “because lay witnesses can testify to their opinion as to good or bad character,” that such witnesses cannot rely on hearsay for the truth of the matter contained within it, and that a limiting instruction so indicating would suffice. Defense counsel responded that “he’s not an expert per se. He’s a custodian of records.” The court agreed, and continued to focus on its proposed limiting instruction.
Defense counsel contended that Hibler’s testimony on direct examination about defendant’s convictions was admissible because “he has firsthand knowledge about that. He’s sent him to prison on parole issues[.]” Counsel questioned the relevance and weight of the uncharged incident reports if the incidents had not occurred, but the court indicated the defense could cover that on cross-examination. The court asked if there was any reason not to allow the prosecution to ask about the prior incidents as a basis for character opinion, provided there was a limiting instruction. Defense counsel questioned whether the incidents had occurred within a relevant time period and, after the prosecution represented that the incidents had, the court ruled that the testimony would be allowed with a limiting instruction.
Hibler then referred briefly to the two 1996 references in the “field file” indicating defendant had engaged in an incident of indecent exposure and of public masturbation while in prison as bases for Hibler’s opinion of defendant’s character. The court immediately instructed the jury that it was “allowed to consider this evidence only to the extent that it provides a basis or a lack of basis in part for this witness’s testimony about the defendant’s moral character. You cannot consider this testimony as proof that . . . the incident itself that it relies upon actually occurred, but you are to consider whether it . . . would or would not provide justification for the opinion about the defendant’s character that this witness has expressed.”
Defendant suggests these reports may have been referring to one act of public masturbation.
2. Analysis
Defendant argues Hibler improperly referred to the 1996 prison incidents because his character opinion testimony could only be supported by evidence from personal perceptions pursuant to Evidence Code section 1102 and McAlpin, supra, 53 Cal.3d 1289. He contends the trial court may have been misapplying rules relevant only where a defense witness describes a defendant’s character. Defendant’s argument lacks merit.
The only objection defendant made at trial arguably related to the character evidence issue he raises on appeal was a hearsay objection. However, as the People point out in their appellate brief, “[t]he defense deliberately opened the door to the subject of appellant’s sex-offense history and the trial court correctly allowed these specific instances of sexual misconduct to rebut defense good character evidence.” The People do not provide legal authority in support of this argument. Nonetheless, they are correct. The defense first asked about hearsay matters contained in these same records on direct examination, those matters being the dates of certain arrests and the lack of past convictions for sexual assaults or molestations. “It is axiomatic that a party who himself offers inadmissible evidence is estopped to assert error in regard thereto.” (People v. Williams (1988) 44 Cal.3d 883, 912 [regarding evidence of criminal history].) Thus, defendant’s use of these same records to probe his own criminal history for his own advantage prevents him from maintaining an argument about the limits of character evidence based on the hearsay objection he made before the trial court. Accordingly, defendant’s argument that we must reverse because the trial court erred by allowing testimony about the 1996 prison incidents is without merit.
Contrary to the defense assertion at the sidebar that Hibler had some sort of “firsthand knowledge” about defendant’s previous convictions, Hibler’s trial testimony did not establish that this was the case. To the contrary, Hibler testified that he did not receive defendant’s case until October 21, 2003.
It appears that defendant relies on his hearsay objection at trial for his character evidence argument on appeal. To the extent he intends by his argument to contend that Hibler’s testimony was somehow otherwise barred pursuant to Evidence Code section 1102 and McAlpin, supra, 53 Cal.3d 1289, he has forfeited this argument by failing to raise it first before the trial court. (Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 435 [“[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct”].)
B. The “969(b) Package” and Federal Rap Sheet
Defendant argues reversal is also necessary because the court allowed Hibler to testify that defendant’s previous convictions and absconding, as referred to in a “969(b) package” and defendant’s federal rap sheet, reinforced Hibler’s opinion about defendant’s character. Defendant again contends violations of Evidence Code section 1102 and McAlpin, supra, 53 Cal.3d 1289. This too is incorrect.
Trial counsel apparently referred to Penal Code section 969b in describing this “package.”
1. Trial Court Proceedings
In the midst of the parties’ sidebar about Hibler’s testimony, the prosecutor asked whether he could ask Hibler about defendant’s prior convictions by introducing a “969(b) package” so they could “solve having [a] second phase of the trial.” The trial court asked if there were “any reason anymore that his priors can’t simply go into evidence?” Defense counsel responded, “No, there’s probably no good argument for that . . . .”
The prosecution introduced into evidence defendant’s “969(b) package.” and Hibler testified from these records about three prior convictions, namely, “December 10th 1990, conviction for burglary second and possessing stolen property. On 9-10-93, a conviction for receiving stolen property. On 9-14-93, conviction for receiving stolen property. And 2-8-96, conviction of petty theft with prior.” Hibler further testified that defendant served prison terms for each of these convictions and was never free from custody for any period of five years, and that “I have three episodes of absconding [from parole] since he started his parole.”
Subsequently, the prosecution asked Hibler whether he was aware of other crimes that would help him opine about defendant’s character. The defense objected, stating “[h]e’s not an expert in that capacity. He can testify to what—what he knows, but otherwise . . . .” The court responded that the prosecution could ask Hibler “based upon what he knows if there’s other information that would—that would have a tendency to reflect upon the defendant’s character, go ahead.”
Hibler indicated he could testify from defendant’s history of parole and California rap sheet, but that the federal rap sheet would give an even clearer picture, and the prosecution then showed him such a document. The defense objected to the document as uncertified. The court stated that it was not being offered into evidence and that the document could be shown to Hibler to “see whether that is the kind of thing the witness recognizes and whether he’s able to render any . . . opinion on it or whether . . . it alters his opinion of the defendant for bad character.” After the court overruled the defense’s foundation and certification objections, Hibler testified that information in the document “reinforced” his opinion about defendant. After another defense objection, this time that the witness was going to read from a non-certified document, the court instructed the jury that whatever Hibler testified to from the document should not be considered for whether the underlying facts of the entries actually occurred, “but can be considered by you in deciding whether this witness’s opinion is supported or not supported . . . on some reasonable basis.”
Hibler then testified that information in the document “reinforces the fact that [defendant] has a long criminal history resulting in convictions; that he has a history of absconding; there are indications that he failed to appear. His criminal history in the FBI rap sheet is similar in many respects of the types of crimes to his California rap sheet. His—the fact that he has basically absconded from courts in other states goes along with his history of absconding on parole. So in that way the federal rap sheet reinforces my opinion that [defendant] is not—not a moral person, not the type of person who should be—he doesn’t act the way that a normal person should in society.” Hibler answered affirmatively when asked if there were “crimes such as robbery or assaultive conduct,” “things like vehicle theft, more thefts, assaults with weapons,” and referred to “possession of deadly weapons, possession of stolen property, robbery with a deadly weapon, armed robbery. Assault and battery on a police officer.”
2. Analysis
Defendant argues we must reverse because the trial court should not have allowed Hibler to testify about his criminal history based on his “969(b) package” and federal rap sheet to “bolster” his opinion of defendant’s character. Defendant contends he did not do so “until after the court had erroneously ruled that [Hibler] would be allowed to recite these three offenses—plus many others—as bases for his opinion.” However, the record indicates that defense counsel agreed to the prosecution’s proposal to introduce evidence of the priors through Hibler in the midst of the sidebar with the court, and before the court had finally ruled on the parameters of Hibler’s testimony. By doing so, he forfeited any further objection to the introduction of this evidence.
Defendant’s position is also flawed for reasons the People do not advance on appeal. Although the People do not raise their “opened the door” argument regarding Hibler’s testimony about the “969(b) package” and federal rap sheet, it has equal merit here because the defense inquiry on direct about the absence of convictions for sex crimes was an apparent effort to elicit character evidence as well. (People v. Williams, supra, 44 Cal.3d at p. 912.) Furthermore, defendant failed to make an objection at trial that preserved his appeal. When the prosecution first asked Hibler if he was aware of other crimes that would help him opine about defendant’s character, defense counsel objected that the witness could only testify to “what he knows.” This is not the issue raised here, however, since a witness can “know” something via hearsay. Furthermore, when Hibler referred to defendant’s previous state convictions and the information contained in his federal rap sheet, defense counsel objected merely on foundation and certification grounds. Therefore, defendant appears to have forfeited his appellate arguments regarding testimony about the “969(b) package” and the federal rap sheet by failing to raise them properly before the trial court. (People v. Partida, supra, 37 Cal.4th at p. 434.) Nonetheless, we do not rely on these analyses for our holding because the People do not raise these issues.
The trial court appeared to sustain this objection. The court stated that Hibler could testify “based upon what he knows if there’s other information . . . that would have a tendency to reflect upon the defendant’s character, go ahead.”
C. Harmless Error
Assuming for the sake of argument that the court erred by admitting Hibler’s testimony about the 1996 reports of prison incidents, the “969(b) package,” and federal rap sheet, the error was harmless because there is not a reasonable probability of a more favorable result if the evidence had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) This was not a close case. Three girls, B.H., Christina, and C.W., testified about defendant’s sexual misconduct. They testified about defendant’s actions and certain events in very consistent ways, corroborated portions of each other’s testimony, and provided straightforward accounts of the incidents in which they were involved. C.W.’s account of defendant touching her leg one night as she slept was particularly compelling because Ann corroborated that C.W. had spoken to her about it at the time. Defendant did not present evidence beyond his own testimony to suggest the three girls were lying, or a compelling theory for why they would do so together. While there are indications in the record, such as in Fleshman’s testimony, that Christina and B.H. changed what they initially told him, nothing suggests this was because they concocted lies about what actually occurred.
The trial court’s exercise of its discretion in the course of making the evidentiary rulings defendant challenges did not affect defendant’s federal constitutional rights. (People v. Escudo (1993) 6 Cal.4th 585, 611 [“ ‘[a]s a general matter, the ordinary rules of evidence do not impermissible infringe on the accused’s [constitutional] right to present a defense’ ”].) Therefore, contrary to defendant’s assertion, the state standard for harmless error applies.
Certain other evidence strongly indicates that defendant lied about his conduct. Fleshman, the investigating detective, testified that Christina’s mother, told him twice in the course of his investigation that defendant had admitted to her that he had engaged in sex with Christina. Ann’s testimony indicated defendant wrote to her after his arrest asking her to persuade Christina to drop her story because he feared going to prison. Douglas W.’s testimony made clear defendant sought to run from the police when they came to the residence to arrest him, and provided other details consistent with the girls’ accounts about defendant’s conduct, such as his use of marijuana and his possession of pornography DVD’s.
Any error was harmless for two additional reasons. First, the trial court limited any prejudice from Hibler’s testimony by instructing the jury in every instance not to consider the records evidence for its truth, but only with regard to Hibler’s opinion of defendant’s character, which instruction the jury is presumed to have followed. (See, e.g., People v. Bryden (1998) 63 Cal.App.4th 159, 184.) While defendant contends that the jurors generally have “normal psychological limits” that make it impossible for them to ignore this kind of evidence in assessing guilt, he points to nothing in the record to overcome this presumption.
Finally, as we have indicated, the jury had already heard evidence of defendant’s prior convictions, incarcerations, and parole violations from Hibler and other witnesses, and none of the additional crimes Hibler referred to involved a sex crime. Thus, this evidence did not create great prejudice against defendant, notwithstanding the case law defendant cites regarding the potential prejudice of “other-crimes” evidence. Similarly, Hibler’s brief references to two reports of public masturbation and indecent exposure in prison in 1996 were of minimal prejudice in light of the criminal history evidence that had already been admitted and the dissimilarity of these purported incidents from the charges at hand.
Christina referred to defendant going to prison in 2003, and to threatening to talk to his parole officer; the court denied defense motions for a mistrial in both cases, which defendant does not challenge on appeal. Tara Aninbashaum also referred to defendant’s previous incarcerations, and defendant referred to a previous conviction in his own testimony.
II. Lack of a Unanimity Jury Instruction
Defendant argues the trial court violated his federal due process and state constitutional rights by not instructing the jury on unanimity. He seeks reversal of 21 convictions for conduct toward Christina, they being the counts charging lewd and lascivious acts between April 2003 and July 2004 and the anal and genital penetration by a foreign object in July 2004. The trial court erred, but this was prejudicial only regarding nine of the 21 convictions defendant challenges.
A. The Legal Standards
Article I, section 16 of the California Constitution guarantees that a criminal conviction may only be secured by a unanimous jury. The standard unanimity instruction, CALJIC No. 4.71.5, codifies this principle. (People v. Jones (1990) 51 Cal.3d 294, 321 (Jones).)
CALJIC No. 4.71.5 states: “Defendant is accused [in Count[s] _____] of having committed the crime of _____, a violation of section _____ of the Penal Code, on or about a period of time between _____ and _____. [¶] In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of [a specific act [or acts] constituting that crime] [all of the acts described by the alleged victim] within the period alleged. [¶] And, in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] [all of the acts described by the alleged victim] within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.” (CALJIC No. 4.71.5 (7th ed. 2005).)
In child molestation cases, “generic testimony” is sometimes presented, in which a victim describes multiple incidents that are not differentiated by dates, times, or places. Such testimony may be presented in cases where the molester has resided in the victim’s home and molested the victim repeatedly, so that “[a] young victim . . . may have no practical way of recollecting, reconstructing, distinguishing or identifying by ‘specific incidents or dates’ all or even any such incidents.” (Jones, supra, 51 Cal.3d at p. 305.) This can create certain issues of proof in molestation cases. In Jones, our Supreme Court reconciled the tensions between a defendant’s due process rights with society’s need “to assure that the resident child molester is not immunized from substantial criminal liability merely because he has repeatedly molested his victim over an extended period of time.” (Ibid.) The court held that if certain minimum requirements are met, generic testimony can support a conviction:
“The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period.” (Jones, supra, 51 Cal.3d at pp. 316.)
The Supreme Court stated that the jury also should be given an appropriate unanimity instruction: “In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Jones, supra, 51 Cal.3d at pp. 321-322.)
Courts have subsequently held that the trial court has a sua sponte duty to provide such unanimity instructions when appropriate. (E.g., People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Matute (2002) 103 Cal.App.4th 1437, 1448.)
Because a unanimity instruction had been given to the jury in Jones, supra, 51 Cal.3d at page 322, the Supreme Court had no need to address whether to apply the state or federal harmless error analysis when a trial court does not give a unanimity instruction to the jury. Appellate courts have subsequently disagreed over the subject, with some applying the state “reasonable probability” standard articulated in People v. Watson, supra, 46 Cal.2d 818, 836 (e.g., People v. Vargas (2001) 91 Cal.App.4th 506, 562), and others applying the federal “beyond a reasonable doubt” standard stated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) (e.g., People v. Melhado, supra, 60 Cal.App.4th at p. 1536; People v. Matute, supra, 103 Cal.App.4th at pp. 1448-1449; People v. Wolfe (2003) 114 Cal.App.4th 177, 185-188). We apply the federal standard because, while the unanimity requirement for conviction is a state standard, “the failure to give a unanimity instruction has the effect of lowering the prosecution’s burden of proof, and an instruction that lowers the prosecution’s burden of proof violates due process.” (People v. Wolfe, supra, at p. 186.)
B. The Trial Proceedings
Christina testified that defendant moved into the house on Easter 2003, first touched her breast two weeks later, and that this kind of touching would occur “all the time” and “every night,” except when he was in prison. Later, she testified that defendant would touch her “butt” and also suck on her breasts. She was then asked, “Did—the touching get worse from there between sucking your breasts and touching your butt? Did he touch another part of your body? She answered affirmatively, and indicated that he would rub her vagina with his fingers, and that all these touchings would occur “every night.”
Christina also testified that defendant did not touch her when B.H. stayed with her in the summer of 2004. The prosecution asked, “From the touchings that you talked about and the sucking of your breasts, did it get worse?” Christina testified that defendant “would just touch my private areas and then in July he wanted me to sleep with him,” and that defendant’s fingers would go into parts of her vagina, doing so “more than 10 times.”
As we have discussed, defendant’s testimony did not challenge the details of Christina’s allegations. Instead, he denied touching her at all.
The trial court did not give the jury any unanimity instruction. The jury found defendant guilty of 20 counts of molesting Christina in violation of Penal Code section 288, subdivision (c)(1) in the months of April, May, October, November, and December 2003, and in March through July 2004 (consisting of two counts for each month, one for touching and sucking her breasts and one for touching her vagina). The jury also found defendant guilty of one count of anal and genital penetration by a foreign object in violation of Penal Code section 289, subdivision (i), during the month of July 2004.
C. Analysis
The trial court erred when it failed to give the jury a unanimity instruction because Christina’s testimony identified more molestations than charged, and was of the generic variety. (Jones, supra, 51 Cal.3d at pp. 321-322; People v. Matute, supra, 103 Cal.App.4th at p. 1448.)
Defendant contends that under the reasonable doubt standard articulated in Chapman, supra, 386 U.S. at page 24, the court’s failure was prejudicial error because Christina was far from clear on the timing and number of events. The People argue that no instruction was necessary, and that any error was harmless under People v. Watson, supra, 46 Cal.2d at page 836, as well as Chapman, because the jury was presented with an “all-or-nothing” choice.
The People are correct that the jury was presented with an “all-or-nothing” situation where they were required to determine whether Christina or the defendant was lying. The jurors were obviously unanimous in their belief that defendant was lying, as they found defendant guilty on all charges that were tried. Thus, to the extent Christina’s testimony satisfied the evidentiary prerequisites outlined in Jones, supra, 51 Cal.3d at page 316, any error was harmless under the Chapman standard, which we must apply here. Christina was required to describe the kind of acts committed, the number of acts with sufficient specificity, and the general time period in which the acts occurred. (Jones, supra, at p. 316.)
Christina testified that defendant touched and sucked on her breasts virtually every night that he was living in her home, beginning two weeks after his arrival in April 2003. This satisfies the Jones requirements. Accordingly, we have no reason to reverse these convictions for lack of a unanimity instruction. Defendant contends that we should not give Christina the same kind of leeway afforded to minors less capable of recalling circumstances because she “was not a small child but a young woman.” However, Christina’s testimony on these matters was very clear, and no leeway is necessary for us to reach our conclusion.
However, as we discuss in part IV, post, there is another basis for reversal of defendant’s conviction for count 1, as well as for count 12.
Christina’s testimony also was very clear that defendant, when he was living in her home, frequently touched her vagina, and that his fingers repeatedly went into her vagina. Her testimony that defendant “would just touch my private areas and then in July he wanted me to sleep with him,” and that while he touched her vagina, her “butt,” and her breasts “every night,” he did not do so when B.H. stayed with her in the summer of 2004, made clear that defendant touched her “private areas” and her vagina in the month of July 2004. Accordingly, the trial court’s error was harmless under the Chapman standard with regard to the count against him for touching Christina’s vagina in July 2004, and the count involving anal and genital penetration by a foreign object in July 2004.
However, Christina did not indicate when these vaginal touchings began, although her testimony suggested that they began at a later date than defendant’s touching of her breasts. In the face of this ambiguity, jurors could have had some questions about the general time period involved for these particular vaginal touchings. Therefore, we cannot conclude beyond a reasonable doubt that the trial court’s error did not contribute to defendant’s convictions for counts 12, 13, and 15 through 21, involving vaginal touchings in the months of April, May, and October through December of 2003, and March through June of 2004. Accordingly, we reverse these convictions.
We note that the People represent, based on Christina’s testimony, that “[i]n July 2004, the abuse worsened,” and that “[s]tarting in July 2004,” defendant penetrated her vagina with his fingers more than 10 times.
III. Counts 28 and 31, Regarding Forcible Rape
Defendant next argues that there was insufficient evidence to support his convictions for forcible rape of Christina as charged in count 28, and for forcible rape of B.H. as alleged in count 31. This is incorrect.
“We review the whole record, in a light most favorable to the judgment, to determine whether it discloses substantial evidence—evidence which is reasonable, credible and of solid value—whether direct or circumstantial, and even if exculpating inferences might seem to us reasonable as well.” (People v. Haynes (1998) 61 Cal.App.4th 1282, 1291.)
Rape is sexual intercourse against the person’s will “by means of force, violence, duress, menace, or fear of immediate and unlawful injury on the person of another.” (Pen. Code, § 261, subd. (a)(2).) Forcible rape is proved “when a jury finds beyond a reasonable doubt that defendant accomplished an act of [rape] by use of force sufficient to overcome the victim’s will.” (People v. Guido (2005) 125 Cal.App.4th 566, 576.) “[T]the kind of force necessary need not be substantially different or greater than the physical force normally inherent in an act of consensual sexual intercourse.” (People v. Mejia (2007) 155 Cal.App.4th 86, 99.) “ ‘[I]n order to establish force within the meaning of section 261, [former] subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].’ ” (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.) “The Legislature has never sought to circumscribe the nature or type of forcible conduct that will support a conviction of forcible rape, and indeed, the rape case law suggests that even conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will, can support a forcible rape conviction.” (Id. at pp. 1027-1028.)
A. Defendant’s Forcible Rape of Christina
Christina testified that in July 2004, defendant “wanted me to sleep with him,” and that one night, “I woke up to him inside of me.” She stated, “I woke up because I felt a pain and I budged and I hit him with my elbow and he fell off the bed and got up and left,” and “I woke up and I elbowed him in the stomach.” The pain was in her vagina, and she did not know whether his penis went inside her vagina, but “felt a pain down there so I was just guessing he did.” The pain went away a few days later. She also testified that he took this action against her will.
Christina’s testimony is substantial evidence that defendant forcibly raped her in July 2004. It indicated defendant put his penis in her vagina as she slept, as evidenced by the pain in her vagina that she felt when she woke up, and that defendant continued, by some quantum of physical force, to place his penis in her vagina when she became conscious, as also evidenced by the pain she felt. Her testimony also indicated that he acted against her will, and did not remove himself until Christina elbowed him in the stomach. A rational trier of fact can reasonably infer that Christina’s elbowing was an act of resistance, and that Christina could not otherwise get defendant away from her.
Defendant was also convicted of raping Christina and B.H. while they were unconscious in the same incidents. Defendant does not challenge these convictions. He does challenge the court’s sentencing for these counts, which we discuss in part V, post.
Defendant denied Christina’s claims at trial, but acknowledges on appeal that her testimony indicates actions that constitute the rape of an unconscious person in violation of Penal Code section 261, subdivision (a)(4). He argues that it is not evidence of forcible rape, however, because Christina did not describe “having her hands or arms pinned or restrained,” testify that “she was unable to move any portion of her body,” express “fear of immediate and unlawful bodily injury,” nor testify “to anything remotely qualifying as duress, menace or violence. In fact, Christina testified that she struck [defendant] with her elbow and knocked him to the ground, after which he left.”
Defendant’s arguments ignore that “ ‘the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim].’ ” (People v. Griffin, supra, 33 Cal.4th at pp. 1023-1024.) They suggest a requirement to show something more, which is incorrect. Furthermore, that defendant discontinued the rape after he was elbowed and fell off the bed is of no relevance to his prior actions. “The circumstance that defendant did not apply additional force to continue the intercourse after [the victim] objected does not eliminate his culpability for his initial penetration of [the victim] against her will by use of force.” (Id. at p. 1029.)
Finally, defendant’s theory about the import of Christina’s elbowing is not relevant under our substantial evidence standard of review. “ ‘ “Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.” [Citation.]’ ” (People v. Southard (2007) 152 Cal.App.4th 1079; 1085; italics added.)
B. Defendant’s Forcible Rape of B.H.
As we have already discussed, B.H. testified that one night in July or August 2004, defendant gave B.H., then 16, an alcoholic margarita drink. She fell asleep on a couch, and woke up to find defendant on top of her. When B.H. was asked at trial what defendant was doing, she responded, “[r]ape,” and indicated that his penis was inside her vagina.
B.H.’s testimony provides substantial evidence of forcible rape. While it indicates defendant began raping her while she was unconscious, a violation of Penal Code section 261, subdivision (a)(4), which defendant also concedes, it also indicates he continued to force his penis into her vagina against her will after B.H. regained consciousness, as indicated by B.H.’s simple description of his actions as “[r]ape.” Furthermore, defendant, a grown man, was lying on top of her from the moment she woke up, by which it can reasonably be inferred he was able to restrict her movement in order to continue the rape. Defendant makes the same arguments about this evidence that he makes about the evidence of his forcible rape of Christina. They are equally unavailing.
IV. Offenses Against Christina During April 2003
Defendant argues that his convictions for counts 1 and 12, for lewd acts toward Christina in April 2003, must be reversed for lack of sufficient evidence. We agree.
Christina testified that defendant first came to her house on Easter 2003, which occurred on April 20. There was no dispute that, as Ann testified, he began staying at the house on the same day that he appeared. When Christina was asked “how long after when he moved in April of 2003” did the first “touching” occur, she replied, “Maybe—I think two weeks.” Thus, Christina’s testimony indicates her belief that the first touching occurred in early May 2003. The People contend she testified “that the touches began within ‘maybe—I think two weeks’ of [defendant’s] appearance at her residence,” (italics added) and that the jury reasonably inferred from this “estimate” that defendant’s lewd touchings began before the end of April. Her testimony does not support this characterization and the People do not point to any other evidence. However, the jury convicted defendant of counts 1 and 12 for acts “during the month of April 2003.” There is insufficient evidence for these convictions, and we reverse them.
By order issued on January 7, 2007, we granted defendant’s request that we take judicial notice of this date. In any event, the record includes a reference to it. Ann agreed with the prosecutor’s statement at trial, “He gets there April 20th, thereabouts, and he doesn’t—you invite him in.”
V. Sentencing Violations of Penal Code Section 654
Finally, defendant argues, and the People concede, that the trial court improperly imposed consecutive terms of sentence for counts 26, 28, 31, 32, and 36 in violation of Penal Code section 654. We agree.
Defendant initially argued to this court that there was insufficient evidence to support his convictions for counts 11, 22, and 23, because there was not sufficient evidence of Christina’s age in July 2004, when the acts involved occurred. After the People in their respondent’s brief identified testimony by Ann establishing Christina was 15 years of age in July 2004, defendant conceded the issue in his reply brief. Therefore, we do not discuss the issue further.
Penal Code section 654 provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).)
The trial court imposed consecutive terms for counts 26, 28, 31, 32, and 36, after the jury found defendant guilty of each of them. Count 31 charged defendant with the rape of B.H. in violation of Penal Code section 261, subdivision (a)(2); count 32 charged him with the rape of B.H. in violation of Penal Code section 261, subdivision (a)(4); and count 36 charged him with the rape of B.H. as a person under the age of 18, in violation of Penal Code section 261.5, subdivision (c). The trial court advised the jury that “counts 31, 32 and 36 should be understood to refer to the same incident or transaction.” B.H.’s testimony was consistent with the court’s characterization. Defendant should only have been sentenced to one term pursuant to Penal Code section 654.
Count 26 charged defendant with the rape of Christina in July 2004 in violation of Penal Code section 261, subdivision (a)(4). Count 28 charged him with the rape of Christina in July 2004 in violation of Penal Code section 261, subdivision (a)(2). The trial court denied defendant’s motion for acquittal pursuant to Penal Code section 1118.1, and in doing so stated that “it understood that count 26 and 28 are the same act charged two different ways,” and subsequently advised the jury that these counts “refer to the same criminal act.” Christina’s testimony was consistent with this characterization. Again, defendant should only have been sentenced to one term pursuant to Penal Code section 654.
Therefore, we must vacate the sentences for these convictions and remand this matter for re sentencing consistent with this opinion.
DISPOSITION
We affirm the trial court’s judgment, except that we reverse counts 1, 12, 13, and 15 through 21. Furthermore, the trial court’s sentences for counts 26, 28, 31, 32, and 36 are vacated, and this matter remanded to the trial court for further sentencing proceedings consistent with this opinion.
We concur: Kline, P.J., Haerle, J.
In light of our ruling, we need not address the other arguments raised by the parties.