Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07NF0266. David A. Hoffer, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kristen Chenilia and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Antonio Patino (defendant) was convicted of two counts of substantial sexual conduct with a child under 14 years of age and more than 10 years younger than defendant. The day before she testified at trial, the victim, a four year old at the time of the charged offense and seven years old at the time of trial, watched a video of her Child Abuse Service Team (CAST) interview recorded three days after the last incident. The prosecution did not disclose that fact to the defense, but it became known the next day during the victim’s testimony. Defendant contends the prosecutor violated her discovery obligation and committed misconduct. He also contends the trial court prejudicially erred when it denied his mistrial motion, motion to strike the victim’s testimony, and motion to continue the trial. Lastly, he contends the trial court erred when it sentenced defendant to consecutive 15 years to life terms. We disagree.
I
FACTS
Defendant was charged in the information with committing an aggravated sexual assault on a child under 14 years of age and more than 10 years younger than defendant (§ 269, subd. (a)(3), count one) in September 2005, by forcibly sodomizing the victim. He was charged with a second count for another violation of the same section between June 2005 and September 2005 (count two). The information alleged the same victim in each count. The jury found defendant guilty of both counts and the court sentenced defendant to prison for 30 years to life.
The information alleged that the victim was under 14 years of age and more than seven years younger than defendant. In 2006, section 269 was amended to require that the victim was more than seven years younger than the defendant. (See Historical and Statutory Notes, 47C West’s Ann. Pen. Code (2008 ed.) foll. § 269, p. 553.) However, the court properly instructed the jury that it must find the victim was more than 10 years younger than the defendant, as section 269 required at the time of the charged incident. (§ 269, former subd. (a); CALCRIM No. 1123.)
All further statutory references are to the Penal Code unless otherwise stated.
At the time of trial in July 2008, R. was a few months shy of her eighth birthday. In September 2005, when R. was four years old, she lived in a three-bedroom townhome in Anaheim with her mother (Tina), her father (Eric), and Eric’s stepfather, defendant, the man who Eric always called his stepfather and who R. referred to as Juito.
We use the first names of those in R.’s family to protect her identity and no disrespect is intended.
Juito is also referred to in the reporter’s transcript as Uito. For purposes of clarity we use Juito.
One day in September 2005, defendant pulled R. into his room by her shirt and locked the door. He threw her onto the bed and took off most of her clothing. Defendant took off his pants and underwear while holding R.’s face down on the bed. R. cried because she could not escape.
Defendant got on top of R., putting his penis “on [her] butt.” R. said she cried because defendant put his penis “inside [her] butt” and she “had lots of pain.” Defendant told her in Spanish to “be quiet.” She started “crying more.” Defendant put R.’s pants on her and carried her down the stairs to R.’s mother and, in Spanish, told Tina that R. had fallen down the stairs.
R. testified she had been in defendant’s room alone with defendant “lots of times” before this incident and defendant “would do the same thing that he did that night,” including taking off R.’s clothes, taking off his clothes, and putting his “pee pees” inside R.’s “butt.”
Tina testified she was downstairs that evening in September 2005, when she heard R. crying and defendant carried R. down the stairs. Tina asked R. why she was crying and R. said defendant “was doing bad things.” Tina did not ask R. any more questions because defendant was present. Tina located Eric and they drove R. to a nearby restaurant parking lot. R. said her “poo poo” hurt. Her father examined her after removing her pants and underwear. He spread her cheeks and noticed some dampness and the skin looked irritated. He also he found a pubic hair “on top of her anus.” They left the parking lot and drove to the Anaheim Police Department.
Anaheim Police Officer Al Martinez met R. and her parents at the front desk of the police station. After R. was interviewed, her parents took her to a hospital. Martinez accompanied the family to the hospital. Toyetta Beukes, a forensic nurse examined R. at about 1:40 a.m. and found multiple, fresh anal tears. The nurse obtained a number of swabs from different areas of R.’s body, including the exterior of her anus. R. had a small, faint bruise on her lower back, right above the start of her buttocks.
The anal swab contained a sperm fraction. The DNA in the sperm fraction matched defendant’s DNA. The probablility that another randomly selected male would have the same DNA profile is less than one in one trillion.
Martinez went with the family to their residence after R.’s examination and arrested defendant. Sergeant Steve Pena interviewed defendant the next morning with the assistance of Detective Lucelia Sandoval who interpreted. After being advised of his rights, defendant was asked to explain in his own words why the officers were speaking with him. Defendant said it was because of what happened with “the little girl.” He said, “She told me that she wanted to have sex with me.”
According to defendant, “[E]verytime that I would get home from work [R.] would go to my room... with me and she would tel[l] me that she wanted to have sex with me.” He said he always told her “no” in the past. On this last occasion when he went into his room, R. ran after him and grabbed his penis through his jeans. Defendant said R. told him she wanted to have sex with him and pulled down her pants. Defendant took off his pants. According to defendant, R. touched his penis again and told him she wanted to have sex with him, and knelt down on the bed. Defendant said he stood behind R. and his penis touched her vagina. He attempted to penetrate her, but she cried and he stopped. Defendant later admitted his penis went in “a little bit.”
When the police informed defendant a pubic hair was found “down there on [R.],” defendant said, “I think it is going to be mine.” Defendant denied covering R.’s mouth when she cried, but admitted he told her not to cry. He told her not to cry because the police would be called.
II
DISCUSSION
The day before she testified in July 2008, R. watched a video of her September 2005 CAST interview. The day after watching the video, R. testified on direct examination that she watched the video of her CAST interview and had not remembered the incident prior to viewing it. She further testified her memory was refreshed by viewing the video:
“Q. Okay. Prior to coming here to talk to all of us, did you watch a tape of the interview you gave in that room with a woman?
“A. Yes.
“Q. Okay. And when did you watch that tape?
“A. Yesterday.
“Q. Okay. And did it — when you watched it, did you remember sitting in that room and talking to that lady?
“A. Yes.
[¶]... [¶]
“Q. You told us about Juito having you on your stomach, him on your back the night that you cried. Do you remember that?
“A. Yes.
“Q. Okay. And the other times before that, you said he either put his pee pees in your butt or your pee pees, do you remember that happening?
“A. Yes.”
Defense counsel objected that the prosecutor violated her discovery duty and committed misconduct by failing to inform the defense of this contact with R. and the fact that R. had been shown the video of her CAST interview.
Prosecutorial Misconduct
Defendant contends the “act of showing [R.] the tape of her 2005 interview, on the day before she testified in 2008, amounted to prosecutorial misconduct....” According to defendant, because R. had “no recollection, independent of the recording,” showing the video to R. “primed” R. and was an act of deception.
“[O]n claims of prosecutorial misconduct our state law standards differ from those under the federal Constitution. With respect to the latter, conduct by the prosecutor constitutes prosecutorial misconduct only if it ‘“‘“so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.”‘“‘ [Citations.] By contrast, our state law considers it misconduct when a prosecutor uses ‘“‘“deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citations.]... ‘A defendant’s conviction will not be reversed for prosecutorial misconduct’ that violates state law, however, ‘unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.)
Defendant cites no authority for the proposition that showing a child witness an earlier statement to refresh the witness’s recollection is improper, much less misconduct. We have found none. Evidence Code section 771, anticipates the use of “a writing” to refresh the witness’s recollection “while testifying or prior thereto.” (Evid. Code, § 771, subd. (a), italics added.) Evidence Code section 320 defines writing. That definition includes a video. (People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12.)
“[I]t is clearly established that there is no objection to a witness refreshing his recollection and memory prior to taking the witness stand.... [Citation.]” (People v. Grayson (1959) 172 Cal.App.2d 372, 377.) Moreover, it has been noted that “any careful lawyer” would present a witness the opportunity to refresh the witness’s recollection before testifying. (Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 73; see Vance v. Superior Court (1958) 51 Cal.2d 92, 93 [defendant entitled to require prosecution to let him review statement made to police to refresh his recollection when he has forgotten what he said].)
The thrust of defendant’s argument is that R. did not have “personal knowledge of the matter” as required by Evidence Code section 702 and would not have been permitted to testify had the prosecution not shown her the video. Had R. been placed in the witness stand, asked if she remembered the incident involving defendant, and answered “no,” the prosecutor could have attempted to refresh her recollection with the video at that point. There is no reason to believe R.’s memory would not then have been refreshed had she first been shown the video while on the witness stand. Refreshing her recollection the day before does not change the analysis.
R. testified she remembered the incident after watching the video. “Q.... When you saw yourself on the video, did that help you to remember what happened three years ago.” [¶] “A. Yes.” She also explained why she did not remember before viewing the video: “Well, I didn’t remember it because before I just [didn’t] want to think about it.” R. had been “trying to forget” what had happened to her.
The prosecutor did not commit misconduct. There was nothing improper in having R. refresh her recollection before she testified, as opposed to waiting until she took the witness stand to refresh her recollection.
Discovery
Defendant contends the prosecutor violated her discovery duty by failing to disclose to the defense the fact that R. watched the CAST video the day before testifying. The Attorney General argues there was no duty to disclose the fact that R. watched the video and that even if such a duty existed, defendant was not prejudiced by the failure to disclose.
The reciprocal discovery chapter of the Penal Code sets forth the respective discovery obligations of the prosecution and defense. The prosecution is statutorily obligated to disclose to the defense: “(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (§ 1054.1.) The prosecution must disclose the above information “at least 30 days prior to the trial.” (§ 1054.7.) The duty to disclose the information listed in section 1054.1 is a continuing one. “If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.” (§ 1054.7.)
The trial was already underway when R. told the district attorney’s investigator she did not remember the incident, and the investigator showed her the video of her CAST interview. Because the trial was already underway, any required disclosure had to be made “immediately.” (§ 1054.7.) Although the fact that R. viewed the video and did not remember the incident before viewing the video was made known to the defense the very next day, it was not because the prosecutor intentionally disclosed those facts. Rather, these facts came to light during the direct examination of R. when R. volunteered that she saw a video of the CAST interview the day before.
On appeal, a prosecutor’s violation of the reciprocal discovery statute is subject “to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and thus is a basis for reversal only where it is reasonably probable, by state-law standards, that the omission affected the trial result.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We are bound to follow the standard declared by our Supreme Court in Zambrano (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450) and reject defendant’s contention that the asserted discovery violation should be treated as a “structural error, requiring reversal per se, without an inquiry into prejudice.”
Defense counsel thoroughly cross-examined R. She questioned R. about what R. was told by the district attorney investigator before watching the video and about R. watching herself on the television. Counsel brought out the fact that R. did not remember the incident before watching the video because R. had been trying to forget the matter. R. testified to incidents she did not mention in the CAST video, but defense counsel got R. to testify on cross-examination that R. told the woman on the video “all the bad things that happened” thus casting doubt on the existence of those additional incidents. (Italics added.) In short, defendant was in no different or worse position than he would have been had the prosecutor informed him the previous afternoon that R. had been shown the CAST interview earlier that day and that prior to watching the video R. said she did not remember the incident. Assuming, without deciding, that the prosecutor violated her discovery duty (see § 1054.1, subd. (e)), we conclude any such error is harmless.
The Attorney General correctly notes that defendant does not contend on appeal that the alleged discovery violation violated defendant’s federal constitutional rights as discussed in Brady v. Maryland (1963) 373 U.S. 83.
Because we find the prosecutor did not commit misconduct and any discovery violation was harmless, there is no need to separately discuss whether the court’s denial of defendant’s motion for mistrial or his motion to strike R.’s testimony, both based upon the alleged misconduct and discovery violation, requires reversal.
Continuance Motion
Defense counsel also made a motion to continue the trial to allow her to consult with and possibly retain a memory expert to “deal with memory issues.” The trial court denied the motion. Defendant contends the denial requires reversal.
A trial court has broad discretion to determine whether good cause exists for a continuance. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) “The court must consider ‘“‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’”’ [Citation.]” (People v. Doolin, supra, 45 Cal.4th at p. 450.) “The determination of whether a continuance should be granted rests within the sound discretion of the trial court, although that discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare. [Citations.]” (People v. Sakarias (2000) 22 Cal.4th 596, 646.)
On review of the denial of a continuance, the defendant bears the burden of establishing both an abuse of discretion and prejudice. (People v. Barnett (1998) 17 Cal.4th 1044, 1126; People v. Beeler (1995) 9 Cal.4th 953, 1003.) “‘In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, “‘particularly in the reasons presented to the trial judge at the time the request [was] denied.’” [Citations.]’ [Citations.]” (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) “‘Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citation.]’” (Ibid.) “In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of his or her motion for a continuance does not require reversal of a conviction. [Citations.]” (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
Because this case came to trial a little less than three years after the date of the alleged offenses and the victim was very young at the time of the incidents, all concerned would expect the extent of R.’s memory to play a significant part in the trial. During pretrial motions, defense counsel argued R. would likely need to have her memory refreshed at some point in time during the trial with the CAST video or the transcript of the video, and that some portion of the video will be admitted into evidence. (See Evid. Code, § 1235 [“Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing....”]; Evid. Code, § 1236 [“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing....].) The fact that R.’s memory was refreshed one day earlier than anticipated did not materially change defendant’s situation. Thus, we conclude the trial court’s denial of defendant’s request for a continuance did not “‘exceed[] the bounds of reason, all circumstances being considered.’” (People v. Froehlig, supra, 1 Cal.App.4th at p. 265.) We find no abuse of discretion.
Even were we to find the trial court abused its discretion in denying the request for a continuance, defendant has failed to demonstrate any prejudice resulting from the denial. Defendant has not shown there was evidence he could have produced had the court granted his request to continue the trial. As a result, he has failed to establish prejudice and reversal is not warranted. (People v. Barnett, supra, 17 Cal.4th at p. 1126.)
Sentencing
Defendant contends he is entitled to be resentenced because the court sentenced him to consecutive terms of 15 years to life under the mistaken belief that section 667.6 mandated consecutive terms. According to defendant, section 667.6 did not apply in his case because section 269 is not among the offenses listed in section 667.6.
Defendant was convicted of violating section 269, subdivision (a)(3) on two separate dates. The same victim was involved in each count. The court sentenced defendant to consecutive 15 years to life terms. The court did so because it concluded section 667.6, subdivision (d), as it existed in 2005, required consecutive sentences.
“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13.) If section 667.6 did not mandate imposition of consecutive terms, defendant would be entitled to be resentenced because the trial court failed to exercise discretion it possessed.
The penalty for a violation of section 269 is imprisonment for 15 years to life. (§ 269, subd. (b).) As of November 8, 2006, subdivision (c) of section 269 requires the court to impose consecutive sentences for violations of section 269 involving the same victim on separate occasions. (See Historical and Statutory Notes, 47C West’s Ann. Pen. Code. (2008 ed.) foll. § 269, pp. 553-554.) However, this subdivision was enacted after defendant committed his offenses and therefore cannot be applied to him. (Collins v. Youngblood (1990) 497 U.S. 37, 43 [legislature may not retroactively increase the punishment for criminal acts].)
Section 667.6 was in effect at the time of defendant’s 2005 offenses. The 2005 version of subdivision (d) of section 667.6 mandated that “[a] full, separate, and consecutive term shall be served for... committing sodomy... in violation of Section 286... by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim... if the crimes... involve the same victim on separate occasions.” Defendant contends that as subdivision (d) of section 667.6 listed a number of offenses requiring consecutive sentences when the crimes involve the same victim on separate occasions and a violation of section 269 is not included in that list, the mandatory consecutive sentence provision does not apply to violations of section 269. This argument was previously considered and rejected in People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez). Defendant acknowledges that decision, but contends Jimenez was wrongly decided. We disagree.
Section 269 was not listed in section 667.6, former subdivision (d) as one of the crimes requiring a full, consecutive sentence when the crimes involve the same victim on separate occasions. However, former subdivision (d) of section 667.6 did include sodomy in violation of section 286 “by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.” For the jury to have found defendant guilty on each count in this matter, it had to find as to each count that defendant committed a sodomy “in violation of Section 286,... by force, violence, duress, menace, or fear or immediate and unlawful bodily injury on the victim or another person.” (§ 269, former subd. (a)(3).) Defendant does not contend otherwise. In these circumstances the only difference between a violation of section 286 by force or violence and a violation of section 269, subdivision (a)(3) is the additional element in section 269 that the victim was under the age of 14 years and more than 10 years younger than the defendant. (Jimenez, supra, 80 Cal.App.4th at p. 291.)
The object to be achieved by the enactment of section 667.6 is the imposition of full, consecutive sentences on those defendants who forcibly sodomize the same victim on separate occasions. In other words, the statute “aggravates sex offenses involving... multiple offenses.” (Jimenez, supra, 80 Cal.App.4th at p. 291.) The 2005 version of section 269 served “a different purpose,” increasing the penalty for those who commit certain offenses against victims under the age of 14 years old and more than 10 years younger than the defendant. (Ibid.)
“Under accepted rules of statutory construction, we must harmonize [statutes], if possible, giving full effect to each. [Citations.]” (Cacho v. Boudreau (2007) 40 Cal.4th 341, 352.) The purposes of section 269 and 667.6 are each served by an interpretation requiring consecutive sentences under section 667.6, former subdivision (d) for those who commit acts of forcible sodomy on the same victim on separate occasions, regardless of the age of the victim. Given the fact one convicted of section 269, subdivision (a)(3) necessarily has been found beyond a reasonable doubt to have violated section 286 by force or fear, it is irrational to conclude the Legislature meant to exempt from mandatory consecutive sentences those defendants who forcibly sodomize a victim of particularly tender years on more than one occasion. (Jimenez, supra, 80 Cal.4th at pp. 291-292.)
The same issue was also raised in People v. Figueroa (2008) 162 Cal.App.4th 95, where the defendant was convicted of two counts of forcibly raping a victim under 14 years of age and more than 10 years younger than he (§ 269, subd. (a)(1)). (Id. at p. 98.) The Figueroa court, too, concluded consecutive sentences were required under section 667.6, subdivision (d) due to defendant’s convictions for violating section 269, subdivision (a)(1) on separate occasions.
In People v. Glass (2004) 114 Cal.App.4th 1032, the defendant was convicted of raping his young stepdaughter in violation of section 269 and was found to have inflicted great bodily injury in the commission of that offense. (See § 12022.7.) Section 12022.8 imposes a five-year enhancement when a defendant inflicts great bodily injury in the course of, among other sex offenses, forcible rape. Like section 667.6, former subdivision (d), section 12022.8 lists a number of sex offenses to which it applies. Glass contended section 12022.8 could not be applied to him because section 269 is not included among the offenses set forth in section 12022.8. (Id. at p. 1036.) For essentially the same reasons set forth in Jimenez, the Glass court concluded that section 12022.8 applied to Glass. The Glass court reasoned that when the jury found defendant committed a section 269 violation against his stepdaughter it necessarily found beyond a reasonable doubt that he forcibly raped her, an offense listed in section 12022.8. (Id. at p. 1036.) “By parity of reasoning, a defendant convicted of violating section 269 would also face the enhancement found in section 12022.8.” (Id. at 1037.)
We agree with the courts that have previously considered this issue that when a defendant violates section 269 by committing offenses listed in section 667.6, former subdivision (d), on separate occasions against a victim under 14 years of age and more than 10 years younger than the defendant, the court is required to impose full, consecutive sentences on those convictions. Accordingly the court did not err in sentencing defendant to two consecutive terms of 15 years to life.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J.FYBEL, J.