Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM3328, Peter M. Schultz, Judge.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On September 1, 2006, the Kings County District Attorney filed an information in superior court charging appellant Jonathan Charles Severs and codefendant Robert David Asher as follows:
Count I—kidnapping (Pen. Code, § 209, subd. (b)(1));
All further statutory references are to the Penal Code unless otherwise indicated.
Count II—rape in concert (§§ 264.1, 261, subd. (a)(2));
Count III—forcible rape (§ 261, subd. (a)(2));
Count IV—rape of an intoxicated person (§ 261, subd. (a)(3));
Count V—oral copulation (§ 288a, subd. (c)(2));
Count VI—oral copulation of an intoxicated person (§ 288a, subd. (i));
Count VII—forcible rape (§ 261, subd. (a)(2)) (appellant only);
Count VIII—rape of an intoxicated person (§ 261, subd. (a)(3)) (appellant only);
Count IX—sodomy (§ 286, subd. (i)) (appellant only);
Count X—eavesdropping or recording confidential communications (§ 632, subd. (a)); and
Count XI—unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)).
As to counts I-XI, the district attorney alleged appellant had served a prior prison term (§ 667.5, subd. (b)). As to counts I-VI, X, and XI, the district attorney alleged codefendant Asher had served a prior prison term (§ 667.5, subd. (b)).
On September 5, 2006, appellant and codefendant were arraigned, pleaded not guilty to the substantive counts, and denied the truth of the special allegations.
On September 28, 2006, the court conducted a pretrial conference and appellant and codefendant each declined a prosecution plea offer to one count of forcible rape.
On October 30, 2006, the Kings County District Attorney filed an amended information in superior court charging appellant and codefendant Asher as follows:
Count I—rape in concert (§§ 264.1, 261, subd. (a)(2));
Count II—forcible rape (§ 261, subd. (a)(2));
Count III—rape of an intoxicated person (§ 261, subd. (a)(3));
Count IV—oral copulation (§ 288a, subd. (c)(2));
Count V—oral copulation of an intoxicated person (§ 288a, subd. (i));
Count VI—forcible rape (§ 261, subd. (a)(2)) (appellant only);
Count VII—rape of an intoxicated person (§ 261, subd. (a)(3)) (appellant only);
Count VIII—sodomy (§ 286, subd. (i)) (appellant only);
Count IX—eavesdropping or recording confidential communications (§ 632, subd. (a)); and
Count X—unlawful taking and driving of a vehicle (Veh. Code, § 10851, subd. (a)).
As to counts I-X, the district attorney alleged appellant had served a prior prison term (§ 667.5, subd. (b)) and as to count X the district attorney alleged codefendant had been previously convicted of a Vehicle Code section 10851 violation (§ 666.5). As to counts I-V and X, the district attorney alleged codefendant had served a prior prison term (§ 667.5, subd. (b)).
On the same date jury trial commenced.
Appellant and codefendant were tried together and found guilty of various substantive offenses and special allegations. They filed separate appeals.
On November 2, 2006, both sides rested and the following stipulation was made before the jury and entered into the record:
“On or about 4/16/2002, Jonathon Severs date of birth 1/31/81 was convicted in Solano Superior Court in case number FCR192708 of four felonies, namely unlawful sexual intercourse, a violation of 261.5(c) of the Penal Code, committed on or about 7/4/2001, 6/2/2001, 6/23/2001 and 6/20/2001.”
On the same date, the court and counsel agreed to treat the charge in count I as an enhancement to count II and the court directed the prosecutor to prepare verdicts as to count II “with a special finding to be found true or not true that the crime was committed in concert within the meaning of Penal Code section 264.1.”
On November 3, 2006, the jury returned verdicts finding appellant guilty of counts II-X of the amended information and finding the forcible rape charged in count II to have been committed while acting in concert.
On the same date, the jury returned verdicts finding codefendant Asher guilty of counts II-V, IX, and X of the amended information and finding the forcible rape charged in count II to have been committed while acting in concert.
On December 1, 2006, the prosecutor filed a statement in aggravation as to appellant and codefendant (Cal. Rules of Court, rule 4.437).
On December 19 and 22, 2006, respectively, appellant and the prosecution filed sentencing briefs.
On January 5, 2007, appellant moved for new trial based on inadequate assistance of trial counsel. The court relieved his counsel and appointed new defense counsel.
On January 29, 2007, appellant filed a motion for new trial based upon ineffective pretrial assistance of counsel.
On February 16, 2007, the prosecutor filed written opposition to appellant’s motion for new trial.
On March 2, 2007, the court conducted a contested hearing on appellant’s new trial motion, took the matter under submission, and denied the motion by minute order.
On March 6, 2007, the court denied appellant probation and sentenced him to a total term of 20 years 4 months in state prison. The court imposed the middle term of six years on count V, a concurrent middle term of six years on count VIII, a consecutive term of eight months (one-third of the middle term) on count IX, a consecutive term of eight months (one-third of the middle term) on count X, a consecutive middle term of seven years on count II, and a consecutive middle term of six years on count VII. The court stayed the terms on counts III, IV, and VI and struck the prior prison term enhancement because the court used that factor to impose consecutive terms. The court imposed a $6,000 restitution fine, imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 279 days of custody credits, and ordered appellant to register as a sex offender (§ 290).
On March 6, 2007, appellant filed a timely notice of appeal.
On June 26, 2007, appellant’s appellate counsel filed an application for judicial notice of his guilty plea to sexual offenses in Solano County Superior Court (case No. FCR192708).
On July 2, 2007, this court filed an order deferring a ruling on the application for judicial notice pending consideration of appellant Severs’s appeal on the merits.
Judicial notice may be taken of the records of any court of this state. (Evid. Code, § 452, subd. (d)(1).) A reviewing court may take judicial notice of any matter specified in Evidence Code section 452. (Evid. Code, § 459, subd. (a).) The Solano County court documents attached to appellant’s application are relevant to issues I, II, and III and are hereby judicially noticed.
STATEMENT OF FACTS
On July 6, 2006, Lindsay and her friend, Virginia, resided in a house at the Lemoore Naval Station. Lindsay and her husband, a member of the military, were separated and in the process of obtaining a dissolution.
On the morning of July 6, Lindsay took an anti-depressant called Lexapro. Lindsay and Virginia planned to celebrate the latter’s birthday that evening by going to dinner and then visiting some local bars. At 7:00 p.m., Lindsay, Virginia, and the latter’s friend, Michael, went to Applebee’s Restaurant in Hanford. Virginia’s boyfriend, Jonathan, was deployed on a ship in San Diego, and he allowed Virginia and Lindsay to use his pickup truck for transportation during his absence. The trio met two of Virginia’s sisters and several friends at the restaurant. The group shared a large margarita and ate some appetizers. Lindsay said she did not feel the effects of the alcohol at the time she left Applebee’s.
After finishing at Applebee’s, Lindsay, Virginia, and Michael went to the Secrets bar in Hanford, where they drank and socialized. Lindsay consumed two or three strong drinks. Lindsay went outside the bar to smoke a cigarette and encountered appellant and codefendant Asher, who were walking down the street. They asked Lindsay to recommend a bar in the area. She recommended the Bastille Bar and said she would be there later in the evening. However, she did not exchange names or telephone numbers with the two men.
After spending 30 to 45 minutes at Secrets, Lindsay, Virginia, and Michael went to the Bastille Bar to hear a live band. Lindsay testified she was feeling a “little drunk” at this point. Lindsay assumed she and her friends arrived at 8:30 or 9:00 p.m., stayed at the Bastille Bar for several hours, and continued drinking. Virginia thought they stayed until between midnight and 1:20 a.m. Michael thought they left at 11:30 p.m.
During their time at the Bastille, Lindsay saw and socialized with appellant and Asher. Lindsay said she was “drunk” at this point. Lindsay said appellant was flirtatious at the Bastille and kissed her at one point. She admitted flirting back with appellant. At trial, Virginia recalled seeing Lindsay flirt with appellant at the Bastille but said the flirting was not sexual. However, Virginia told Dennis Reed, an investigator with the Kings County District Attorney’s Office, that Lindsay and appellant touched each other a lot when they talked. At one point in the evening, appellant picked up Lindsay and twirled her around. She responded by wrapping her legs around appellant’s waist. At trial, Virginia said she did not hear any sexual discussions between Lindsay and appellant at the Bastille. However, Virginia told Investigator Reed that Lindsay laughed along when appellant made some sexual jokes. Michael said he saw Lindsay talking with appellant at the Bastille but did not see any flirting.
The group decided to go home when Virginia became intoxicated. Lindsay asked whether she could invite appellant and codefendant back to their home for more drinking and talking and Virginia agreed. Lindsay stopped drinking about 30 minutes before the group left the Bastille. She obtained a cellular telephone number for the defendants and someone put the number into Virginia’s cell phone. The group left the Bastille at about 1:20 a.m. Lindsay testified that she acted as the designated driver that evening and stated: “We were all pretty drunk.” Virginia and Michael said she was not intoxicated and drove well on the way home from the Bastille.
Lindsay, Virginia, and Michael drove to a gas station in the pickup truck and appellant and codefendant purchased some beer and followed them in a separate vehicle. Appellant and codefendant parked their vehicle in a guest parking area at the Naval Air Station because they did not have a permit to park on the base. Appellant and codefendant then got into Moser’s truck and they all entered the base together. Once they arrived at the residence of Lindsay and Virginia, Lindsay placed the truck keys in her purse and set the purse on the kitchen counter.
Lindsay and the others began to drink beer and Lindsay thought she consumed five or six beers. After about an hour of visiting, Virginia and Michael went to Virginia’s bedroom to go to sleep. Virginia did not see the two guests again until appellant entered her bedroom to ask to borrow her cell phone. Michael remembered appellant entering the bedroom twice that night. On the first occasion, appellant offered Michael a beer but Michael declined. On the second occasion, appellant asked to borrow Virginia’s cell phone because he could not get a signal on his own cell phone. Michael remembered appellant saying that Lindsay had given appellant and codefendant permission to sleep on the couch.
At some point in the evening, Virginia went to get some water and heard loud music playing on the television in the living room. Virginia turned off the television since Lindsay was not in the room. Virginia said Lindsay usually turned off the television if she was not watching it. Virginia also noticed that Lindsay had closed her bedroom door, something she never did. Virginia said appellant entered her bedroom about 10 to 15 minutes after she turned off the television set. He asked to borrow her cell phone so he could call his boss. Appellant told Virginia that Lindsay had said it was okay for them to sleep on the couch and offered to take them to their truck so they could get to work at 6:00 a.m. Appellant said he needed to call his boss but his phone was not working and that is why he asked to borrow Virginia’s. According to Virginia, he took her cell phone out of the room, returned the instrument about five minutes later, and thanked Virginia. Shortly after appellant returned Virginia’s phone, she heard the sound of a departing vehicle.
Lindsay, appellant, and codefendant remained in the living room and began to watch a movie on the television. Lindsay felt drunk and left the room briefly. When she returned, appellant asked her to finish her beer and Lindsay complied. About 10 minutes later, Lindsay’s condition deteriorated and she began to feel heavy. Appellant began kissing Lindsay on her neck and mouth. Lindsay kissed appellant back at first. When codefendant also began to kiss Lindsay on the neck, she became uncomfortable and pulled away. Lindsay said she began to feel heavier and heavier and felt like she could not move. Appellant and codefendant pulled her shirt up and kissed her breasts. Lindsay said she was confused and could not understand what was happening to her.
Appellant and codefendant eventually stood Lindsay up and took her to her bedroom. Lindsay felt incapable of speaking. The two men removed her clothing, lay on the bed with her, and kissed her neck, breasts, and face. The two men told her she was sexy and good looking and undressed down to their boxer shorts. Lindsay said she was unbalanced, confused, and felt unable to talk or move. She also said she could not talk or hold her head up.
Appellant began to have genital intercourse with Lindsay. Lindsay was lying underneath appellant on her stomach. At trial, she had difficulty remembering details of the sexual offenses and the order in which they occurred. Lindsay said appellant and codefendant both made her orally copulate them. Each man grabbed her head and pushed it toward his penis. Lindsay resisted by pulling her head back and closing her mouth. She said she never did suck on their penises. According to Lindsay, the men kept saying, “‘Open your mouth, baby, open your mouth.’” During the sexual assault, appellant had sex with Lindsay when she was on her back. At one point, appellant turned to codefendant and said it was his turn. Codefendant then had sexual intercourse with Lindsay.
During the events in her bedroom, Lindsay saw appellant hold up his cell phone and point it at Lindsay and himself. She thought appellant was using the phone to take pictures of the various sexual acts. Lindsay said she never permitted the men to photograph or videotape her. Lindsay eventually told the men she did not want to have sex with them. The men responded by telling her that she did want to have sex with them. Although Lindsay disagreed and tried to get up, the men would lay her back down on the bed. At some point, appellant was having sex with Lindsay while she lay on her stomach. Appellant pulled his penis out of her and reinserted it into her rectum. Lindsay said she felt pain when this occurred but was unable to speak. She also said appellant’s penis remained in her rectum for about five seconds before he reinserted it into her vagina. At trial, Lindsay thought the rectal penetration could have been an accident. She previously told District Attorney Investigator Reed, “‘He just missed and sort of entered the wrong hole.’”
Codefendant left the bedroom and returned with some condoms. Lindsay said they resembled the condoms she carried in her purse. Appellant and codefendant put on the condoms, had sexual intercourse with her, and made her orally copulate them. Lindsay recalled the men orally copulating her two times apiece and having sexual intercourse with her two times each. The men eventually dressed, left the bedroom, and had a conversation that she could not understand. Appellant returned alone and again had sexual intercourse with Lindsay. During the entire encounter, Lindsay felt very heavy and unable to move. After the last act of intercourse, appellant entered the bedroom between two and four times to check on Lindsay. Lindsay said she was just starting to feel like she could move again when appellant reentered the bedroom alone. Lindsay tried to get up and get dressed. Appellant asked her, “‘What are you doing?’” Appellant wrapped Lindsay in a comforter, laid her down on the bed, and told her, “‘It’s okay. It’s okay. Just go to sleep.’” During this same time, appellant told Lindsay she agreed to have sex with them. She responded by saying she did not agree to it.
A few minutes after appellant left the bedroom for the last time, Lindsay heard the tires of a vehicle squealing in her driveway. Lindsay had never told the two men they could take the truck keys out of her purse and Virginia never gave the men permission to borrow the truck. Lindsay got up, dressed herself, entered Virginia’s bedroom, and said they needed to call 911 because the men had stolen the truck and raped her. Lindsay called 911 and reported that two men had just raped her and taken their truck. Lindsay estimated an hour elapsed between the time they entered the bedroom and the time the two men left the house.
Alan Bohannon, a 911 dispatcher at the Naval Air Station, received the emergency call from Lindsay at 2:38 a.m. on July 7, 2006. He transferred the call to Fresno County authorities but remained on the phone line. The prosecution played the recording of the 911 call for the jury.
Brian Alexander, a Navy military police officer, received a call about a stolen vehicle at about 2:40 a.m. on July 7, 2006. Upon receiving the call, the base shut down to incoming and outgoing traffic. Alexander stopped appellant and codefendant at the gate and confiscated their cell phones. The military police took the two men into custody. John Gillett, another Navy military police officer, responded to Lindsay’s residence at about 2:38 a.m. When Gillett arrived, he found Lindsay curled up in a fetal position. She was crying and shaking. Lindsay told Gillett she had been raped and their truck had been taken. She also explained she was intoxicated and did not realize what was happening at first. Lindsay showed Gillett a picture of appellant on her MySpace page and said, “‘It was this guy right here.’”
Alison Caldwell, an investigator with Naval Criminal Investigative Services (NCIS), processed the crime scene. Caldwell also met with appellant and codefendant at the NCIS office on the base, photographed codefendant, and took custody of appellant and codefendant’s cell phones. Caldwell found recorded images of Lindsay and appellant on one of the cell phones. Caldwell was not certain which phone was taken from which person. Caldwell turned over the cell phones to District Attorney Investigator Reed on July 13, 2006. On July 14, Reed gave the phones to Kings County Computer Forensic Analyst Marlene Dunn for technical examination.
Marlene Dunn accessed both phones on July 17, 2006 and looked for recorded photographic evidence. Dunn made a compact disc (CD) of 14 photographic images that she downloaded from one of the cell phones. Dunn was also able to access three video clips from that same phone. That cell phone also contained a number under the heading “Girls” and that number was reflected on the “recent dialed” and “received calls” lists of the phone. Dunn could not determine whether this cell phone dialed Virginia’s phone number or was dialed by it. The prosecution presented no evidence of any image or video files in the other cell phone.
The prosecution played the video clips during trial. During the clips, a man repeatedly urged Lindsay to put “it” in her mouth and said it will be over after she is done. He said, “It’ll be over after you’re done. No. Stop. You want it to be done right?” “Put it in your mouth real quick and it’ll be all over.”
Sexual Assault Examiner Patti Driscoll examined Lindsay at 6:05 a.m. on July 7, 2006. Driscoll found disrupted tissue in Lindsay’s vaginal area and a reddened area around her cervical opening. Driscoll said the condition of Lindsay’s tissue was consistent with sexual assault because tissue disruption is less likely when intercourse is consensual and the participants are aroused. Driscoll noted that Lindsay’s rectal area was very tender and said she was unable to examine the interior portion because of Lindsay’s pain. In Driscoll’s opinion, Lindsay was tender as a result of the reported anal penetration. Driscoll took a blood sample from Lindsay at 7:55 a.m. on July 7.
In August 2006, codefendant sent Lindsay a letter and pleaded with her to “tell the truth” and say the events of July 6 and 7 were “consensual.” Codefendant included a picture of his daughter and a sonogram of his unborn son with the letter and Lindsay was upset by the correspondence.
On August 24, 2006, District Attorney Investigator Reed interviewed Lindsay and Virginia. Lindsay told Reed she was having a difficult time remembering and that details came to her over time. Lindsay told Reed she took some Lexapro and “probably” had something to drink before going out on the evening of July 6. She also said she shared a daiquiri at the restaurant. Lindsay also said she had two drinks at the first bar, one or two light beers at the Bastille, and more than three beers once the group returned home. She also told Reed the group stopped at Taco Bell before going back to the base. Lindsay described appellant’s penetration of her anus by saying, “‘He just missed and sort of entered the wrong hole.’”
Bill Posey, a toxicologist with Central Valley Toxicology in Clovis, California, testified that Lexapro is an antidepressant that “has a potential of having an additive central nervous depressant effects when mixed with alcohol.” In Posey’s view, Lexapro taken with alcohol has the potential for increasing the effect of alcohol on an individual. However he noted “most of the studies have indicated that the additive effect is not a profound one. There are warnings against using the drug with alcohol.”
Bill Posey, a toxicologist with Central Valley Toxicology, testified he received Lindsay’s blood sample from NCIS on August 28, 2006. That sample had been drawn by Nurse Driscoll. Posey tested the blood sample from the sexual assault evidence collection kit. He did not detect any drugs or alcohol in the sample. In addition to conducting a standard drug and alcohol screen, Posey looked for chemicals that have a sedative effect when combined with alcohol. Posey said one such substance, gamma-hydroxybutyrate (GHB), can extend the effects of alcohol but typically leaves the blood stream in six hours, depending upon the dosage. Responding to a hypothetical question, Posey said a person who had several drinks between 7:00 p.m. and 1:00 a.m. and then consumed five or six light beers over the next hour would experience a rapid onset of sedation if the last beer contained GHB. He said such a person would feel sluggish or even totally comatose. Posey further testified that GHB metabolizes quickly so that every 13 minutes the individual would feel half of the effects of the drug. Such a person would be expected to come out of the state of sedation very quickly.
On October 30, 2006, Lindsay viewed the photographic CD and three video clips at the District Attorney’s office. Lindsay explained that the image of people on a bed depicted appellant and her in her room. Lindsay also said the three video clips showed the sexual acts that appellant and codefendant committed and included her moaning sounds. The prosecution played the video clips for the jury. The first clip depicted appellant putting his penis in Lindsay’s mouth. The second clip depicted Lindsay and appellant’s penis. Lindsay left the courtroom in tears when the prosecution played the third video clip.
The parties stipulated that appellant was convicted of four counts of statutory rape (§ 261.5, subd. (c)) in Solano County on April 16, 2002.
Defense
NCIS Special Agent Irene Howard testified she met with Lindsay on the morning of July 7, 2006, and escorted her to her medical examination. She also interviewed Lindsay. Lindsay told Howard she had five or six beers before going to the restaurant on July 6. Lindsay also said that appellant “‘began grabbing’” on her and kissing her once they were back at her place on the base. Lindsay told Howard she “‘didn’t have any problem with that.’” Lindsay also told Howard she took a Lexapro pill at about 5:00 p.m. on July 6.
With respect to appellant’s anal penetration, Lindsay told Howard, “‘[h]e just missed and sort of entered the wrong hole.’” Lindsay further told Howard that she screamed during the sexual encounter and ran to her roommate’s bedroom following the encounter. Lindsay said appellant was the individual who picked her up and carried her to the bedroom. She said codefendant just watched them. Lindsay told Howard she wanted to scream but it seemed like there was no sound coming out of her mouth. Lindsay said she screamed when appellant’s penis penetrated her anus and appellant told her, “‘It’s all right, baby, just hold still.’”
Officer Gillett said he spoke to Lindsay about the MySpace page featuring appellant’s picture. Lindsay said she and appellant visited their respective MySpace pages that evening and appellant asked her to add him to her “friends” list.
DISCUSSION
I.
NEW TRIAL MOTION
Appellant contends the trial court erroneously failed to grant his motion for new trial to remedy ineffective assistance of counsel during the plea negotiation process.
A. Events Leading to the New Trial Motion
On December 12, 2006, appellant wrote a letter to the trial judge, the Honorable Peter M. Schultz. Appellant advised Judge Schultz he would be moving for a new trial based on the ineffective assistance of his trial counsel. Appellant claimed (1) he never saw the phone videos before trial even though he made several requests to his attorney, Marianne Gilbert; (2) he was never told the maximum exposure he could face if he was found guilty; and (3) he rejected a plea bargain of five years based on misadvisement by his counsel.
On January 5, 2007, the court received the letter, relieved attorney Gilbert, and appointed attorney Brian Gupton to determine whether there was any legal basis for such a motion. On January 29, 2007, attorney Gupton filed a motion for new trial on appellant’s behalf. Appellant alleged ineffective pretrial assistance of counsel based upon (a) the failure to advise appellant of the possible maximum consequences upon conviction; (b) misadvisement leading to the rejection of a nine-year plea bargain; and (c) the failure to advise appellant of the nature of the evidence against him, specifically video clips on his cell phone. On February 16, 2007, the prosecution filed written opposition to the motion. The prosecution represented that (1) attorney Gilbert advised appellant of the consequences of the charges; (2) appellant refused to discuss plea negotiations based on his insistence that the sexual encounter was consensual; (3) attorney Gilbert did not show the video clips to appellant but did provide him with a transcript of the commentary from the clips and provided a copy of the clips to appellant’s mother; and (4) attorney Gilbert told appellant what she observed in the clips and offered her opinion about how the clips would affect his case.
On March 2, 2007, the court conducted an evidentiary hearing on the defense motion for new trial. Appellant testified that the prosecution offered a negotiated plea of guilty to one count of forcible rape for a term of five, seven, or nine years. Appellant further testified that attorney Gilbert advised against the bargain, saying no other prosecutor would take the case to trial, that she and codefendant’s counsel would team up on the deputy district attorney, and that they would refuse to waive time. According to appellant, Gilbert said “‘this is a really good case.’”
Appellant also testified that several times prior to trial he asked Gilbert to show him the video clips. However, he never saw those clips until they were screened for the jury during trial. Appellant also said he spoke to Gilbert on the Friday before trial began and told her he was not ready to proceed. He also said he still wished to see the video clips. Although counsel promised to show him those clips later that day, she never did. Gilbert told appellant the clips supported a defense that the sexual conduct was consensual.
Appellant testified he was never advised prior to trial of his maximum potential sentence. He believed the maximum term was nine years. Appellant said counsel told him just before jury deliberations that the maximum exposure was 18 years 8 months. Appellant acknowledged having a jail telephone conversation with his mother on November 2, 2006. During that conversation, appellant told his mother he did not think the clips showed what the district attorney claimed they showed. Appellant asked his mother if the clips showed a rape, forcible oral copulation, sodomy, or anything against Lindsay’s will. His mother acknowledged it did not. Later in the conversation, appellant told his mother:
“… Well this is what Gilbert told me. Gilbert said, Come here I want to show you my closing argument. She says the video is bad. And I told her. That’s the first time I’ve seen the video. I thought the video was gonna be way worse than that. You know from the gate. When we first got our two attorneys besides Marianne Gilbert and Donna Tarter. There’s a lawyer named Mr. Meyer. And he came up and told us, I’ve seen the video. The video is blurry. It doesn’t show what the DA wants it to show. The lingo is terrible. But he said, get a speedy trial. Don’t waive any time. Do not... But he said from the gate that it’s not bad. When I seen that video[,] Mom, it didn’t show what the DA’s trying to prove. Now. The jury is gonna get specific instructions on how to handle this case tomorrow.”
At the hearing on motion for new trial, appellant said, “Had I seen that video like I asked, no, I probably wouldn’t have went to trial. I would have negotiated and accepted a plea deal.”
Attorney Michael Woodbury testified he represented appellant in August 2006 at the pretrial conference and preliminary hearing. Although he did not have an independent recollection of advising appellant, Woodbury said his usual practice is to explain to the client the charges and the potential penalties. Although Woodbury had no independent recollection of his discussions with appellant, he did convey an offer from the prosecution to appellant. According to Woodbury’s file, the offer was for appellant to plead to one count of rape in concert, one count of unauthorized recording, and one count of vehicular theft with the admission of a prior prison term for a total sentence of 11 years 4 months. Woodbury recalled that appellant rejected the offer based on his assertion of innocence.
Marianne Gilbert testified she was appointed to represent appellant on September 5, 2006. Gilbert said appellant wrote her several letters. The first one requested copies of discovery in the case and Gilbert responded by supplying him with redacted copies. The discovery included transcripts of the three video clips. Gilbert said she “hounded” the prosecutor about deleting a kidnapping count from the original information and the amended information did omit that charge. Gilbert said the deletion of that charge was significant because it was the only original charge that carried a life penalty.
Gilbert said she and the prosecutor reviewed the video clips together on October 10, 2006. After seeing the clips, Gilbert spoke with appellant, told them she found the clips to be offensive, and thought they would be highly offensive to a jury. Gilbert said appellant never told her he needed to see the video clips to be ready for trial. She believed he was ready for trial and noted they had discussed the defenses he had in the case. Gilbert said she never told appellant, “‘Don’t worry. The video does not show anything.’” She also said after she saw the video clips and described them to appellant, he was not interested in taking any kind of plea. She said, “He was very adamant that it was a consensual encounter and he told me he would never do that, plead guilty to that, to a sex crime.” According to Gilbert, appellant did not believe he was guilty of committing a sex crime.
As to the maximum potential term, Gilbert said appellant knew there was a life term potential on count I of the original information. As to the other counts, Gilbert showed appellant a copy of the complaint that attorney Woodbury had annotated with possible prison terms. She added additional possible terms to Woodbury’s notations. Gilbert also said she reviewed the prison consequences of charges in the information where they differed from the allegations of the complaint. Gilbert said the prosecutor offered a bargain by which appellant would “plead to any sex crimes with a three, six, eight triad, picking any one.” Appellant declined the offer and countered with an offer to plead to Vehicle Code section 10851. However, the prosecutor rejected the counteroffer.
Gilbert said she and appellant discussed total exposure after the amended information was filed but before the verdicts were read. Appellant asked her, “‘Am I looking at 18 years?’” Gilbert responded, “More than that.” Gilbert said from the beginning appellant was only willing to plead to a violation of Vehicle Code section 10851. As to the video clips, Gilbert acknowledged that appellant wanted to see the clips but she had difficulty in getting the compact disks to work in her computers. She said appellant never took the position that he had to see the clips before the jury trial could commence.
On cross-examination, Gilbert acknowledged the prosecution made an eight-year offer at the trial readiness hearing. She said she discussed the alternatives with appellant if he did not take the offer and advised him “it was risky” because he would be looking at a lot more than eight years of prison time if he lost. She offered to calculate the maximum term but he said, “‘No, I’m not going to plead guilty to a sex crime.’” Gilbert said she did not advise appellant that he had a good defense to the sex charges or that her review of the clips indicated consensual sex. Gilbert also acknowledged that she did not calculate the maximum terms for appellant after the amended complaint was filed, did not tell appellant the maximum consequences he was facing, and never discussed with him the issue of consecutive versus concurrent sentences.
On redirect-examination, Gilbert said she did not think a computation of the total consequences would have changed appellant’s position. In Gilbert’s view, appellant believed he was innocent. On recross-examination, Gilbert said it would have made no difference if appellant had the opportunity to see the video clips and discuss them with counsel. On further redirect-examination, Gilbert said the prosecutor had provided her with several photographs taken from the video clips. Gilbert said she had shown and provided those photographs to appellant.
Deputy Probation Officer Dan Luttrell testified he interviewed appellant at the jail on November 20, 2006. Luttrell asked appellant about the video clips and appellant said the videotape was misleading. Appellant also told Luttrell that “when he had sex he’s the type of person that talks dirty.” According to Luttrell, appellant did not express shock at what he saw on the video clips during trial. When Luttrell asked him about potential sentencing, appellant told Luttrell he hoped to be out of prison by the time he was in his 40’s. Appellant never complained to Luttrell that attorney Gilbert failed to show him the video clips. On cross-examination, Luttrell said he told appellant during the interview that he was unsure of the total sentencing. However, Luttrell did advise appellant of the sentencing triad for each crime.
B. Ruling of the Trial Court
The court reviewed the written points and authorities and appellant’s declaration, considered the arguments of counsel and the testimony adduced at the new trial hearing, and ruled from the bench in relevant part:
“With regard to the testimony of Mr. Luttrell, his testimony about Mr. Severs’ statement about an expectancy or a hope as to when he would be released is not particularly probative of anything because it appears that that occurred after Mr. Luttrell had talked with him about Mr. Luttrell’s views of the sentencing parameters, at least to the extent that he’d be able to resolve them at that point.
“With regard to the testimony of Mr. Woodbury and Mrs. Gilbert, the Court finds ... them to be both highly credible witnesses, and I do not find Mr. Severs to be a particularly credible witness. [¶] ... [¶]
“Certainly, it is the obligation of counsel in normal circumstances to apprise a defendant of the maximum potential penalties available if a defendant goes to trial and loses.
“The situation is undoubtedly made more difficult when the client tells counsel that he is not interested in knowing that information and that it would not make any difference anyway because he doesn’t intend to accept any plea agreement other than a plea, in this case, to vehicle-taking, and would not entertain the thought of pleading guilty to a sex offense.
“Clearly, the best practice would be to, even if the client’s not wanting to hear it, would be to tell the client anyway what the maximum potential punishment would be, and although I’m not aware of any case deciding the point, I suspect it’s probably ineffective assistance of counsel to fail to do so.
“However, as stated by the Supreme Court In Re: Alvernaz, ‘It is incumbent upon the defense in bringing a motion or a writ for ineffective assistance of counsel to establish prejudice, and that there would have been a different result but/for the complaint of conduct by counsel.’
“The Supreme Court says that, ‘In this context, a defendant’s self-serving statement after trial conviction and sentence that with competent advice he or she would have accepted a proffered plea bargain is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked clove of easily-fabricated claims.’
“In this case, not only has Mr. Severs not met that burden of proof, the Court affirmatively finds that it’s clearly established that he would not have responded any differently to the plea agreement offered by the People even if the Court were able to accept such a plea agreement.
“The evidence clearly establishes that he was not of a mind to plead guilty to anything other than vehicle-taking, and, accordingly, the motion for a new trial is denied.”
C. Applicable Law
A new trial may be granted where the trial court finds the defendant received ineffective assistance of counsel. To prevail on this ground, a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to the defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (People v. Callahan (2004) 124 Cal.App.4th 198, 212.)
Because appellate courts review trial counsel’s conduct in hindsight, we hesitate to second-guess a trial counsel’s tactical decisions. Moreover, appellate courts are equally reluctant to second-guess the trial court’s discretionary ruling on a new trial motion. That is because the trial court is in the best position to make an initial determination and intelligently evaluate whether counsel’s acts or omissions were those of a reasonably competent attorney. (People v. Callahan, supra, 124 Cal.App.4th at p. 212.)
The primary purpose of the requirement that counsel render effective assistance is to ensure a fair trial. The benchmark for judging a claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (People v. Callahan, supra, 124 Cal.App.4th at p. 212.) To establish a claim of ineffectiveness in the context of a defendant’s rejection of a proffered plea bargain, a defendant must show: (1) counsel’s representation was deficient, i.e., fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel’s deficient performance subject defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (In re Alvernaz (1992) 2 Cal.4th 924, 936-937 (Alvernaz).)
D. Appellant’s Contentions on Appeal
Appellant contends in relevant part:
“Ms. Gilbert claimed that she discussed and described the video clips to appellant after she viewed them with the prosecutor. A description of a human encounter is one thing. A video recording of the event, however, carries an impact that many times cannot be accurately conveyed by a description or even by the still photograph which trial counsel claims to have shown to appellant. ‘If a picture is worth a thousand words, a moving picture is worth a million.’ (People v. Post (2001) 94 Cal.App.4[th] 467, 476 [quoting People v. Webb (1999) 74 Cal.App.4[th] 688, 690].) Appellant needed to see the video clips to gauge their potential impact on a jury and to make an intelligent, informed decision of whether he wished to risk a trial in which the video clips would be played or to accept a plea bargain with a shorter sentence which could avoid that situation. [Citation.]
“The record before this Court thus establishes that trial counsel failed to advise appellant properly on two keys aspects of the decision whether to accept the plea bargain or to proceed to trial. The record also provides corroboration for appellant’s claims. [¶] ... [¶]
“The record contains facts of a type which have previously been found to support a finding of prejudice. In Riggs v. Fairman [(9th Cir. 2005) 399 F.3d 1179], the disparity between the 9-year sentence, which counsel told the defendant was his maximum exposure, and the 25-years-to-life sentence which was the actual maximum term, was deemed one factor in the prejudice calculus. Another factor indicating prejudice was that the prosecution case against the defendant was strong. (Riggs v. Fairman (9th Cir. 2005) 399 F.3d 1179, 1183.)
“In our case, both of these two factors exist. The proffered plea bargain carried a maximum term of 8 or 9 years, depending on whether appellant’s or trial counsel’s recollection is the accurate one. In contrast, appellant’s maximum exposure in this case was more than 30 years. [Citation.]
“In addition, appellant realized when he finally saw them during trial that the video clips were far more damaging than he previously believed. His assessment of the strength of the prosecution case was thus affected by counsel’s failure to show the video clips to him in advance of trial, when he might have negotiated a disposition and avoided trial. [Citation.] [¶] The record thus establishes prejudicial ineffective assistance of counsel with respect to the plea negotiations.”
E. Discussion
Ineffective representation that results in a defendant’s decision to proceed to trial can give rise to a claim of ineffective assistance of counsel. However, a defense attorney’s simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence the defendant is likely to receive upon conviction will not—without more—give rise to a claim of ineffective assistance. In determining whether a defendant, with effective assistance, would have accepted a plea offer, pertinent factors include: (1) whether counsel actually and accurately communicated the offer to the defendant; (2) the advice, if any, given by counsel; (3) the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and (4) whether the defendant indicated he or she was amenable to negotiating a plea bargain. (Alvernaz, supra, 2 Cal.4th at pp. 934, 937-938.)
In this context, a defendant’s self-serving statement—after trial and conviction—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice. Such a statement must be corroborated independently by objective evidence. In addition to proving that he or she would have accepted the bargain, a defendant must also establish the probability that it would have been approved by the trial court. Such a requirement is indispensable to a showing of prejudice because judicial approval is an essential condition precedent to any plea bargain negotiated by the prosecution and defense. A plea bargain is ineffective unless and until it is approved by the court. (Alvernaz, supra, 2 Cal.4th at pp. 938, 940-941.)
A reviewing court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice, that course should be followed. (Alvernaz, supra, 2 Cal.4th at p. 945.) Here, we initially note that appellant has failed to establish the probability that a plea bargain would have been approved by the trial court. (Id. at pp. 940-941.) Assuming arguendo appellant established or could have established such a probability, we must closely scrutinize whether appellant established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain. (Id. at p. 938.)
The prosecution made two plea offers to appellant, the first conveyed to him by attorney Woodbury and the second conveyed to him by attorney Gilbert. Woodbury believed he discussed the penal consequences of all of the counts with appellant as well as the potential for fully consecutive sentences. Woodbury said he explained to appellant that the charge of kidnapping—alleged in the original information—carried a life term with the possibility of parole. Woodbury said the prosecution’s offer was for a maximum term of 11 years 4 months. However, appellant was adamant about his innocence and maintained the sexual intercourse was consensual.
Gilbert said she and appellant discussed the fact that a life term was the maximum prison exposure based upon the kidnapping charge in the original information. Gilbert said she wrote the potential terms on a copy of the criminal complaint and informed appellant about the maximum potential term for each count. Gilbert said the prosecution’s offer was for a maximum term of eight years. At the time of the offer, appellant indicated he did not want to take the deal and Gilbert never calculated a total potential maximum term for the offenses carrying determinate terms. Gilbert recalled that appellant was not interested in a plea agreement that entailed a sex offense. Appellant made a counteroffer, expressing a willingness to plead guilty to a vehicular offense. At one point Gilbert told appellant it was risky not to take the prosecution’s offer because he would face more than eight years in prison if he lost at trial. Gilbert said she asked appellant if he wanted her to review the prison exposure calculations with him but appellant said he did not want to do so because he was not going to plead guilty to a sex crime.
Gilbert received the second settlement offer on September 28, 2006. The amended information that deleted the kidnapping charge was not delivered to Gilbert until October 25, 2006. Therefore, appellant had accurate information about his maximum exposure at the time he rejected the prosecution’s second plea offer.
Appellant’s maximum exposure was later reduced by the filing of the amended information, which deleted the kidnapping charge. Nevertheless, at the time the plea offers were conveyed and rejected, appellant was facing a life term and declined to accept prosecution offers of determinate terms. Moreover, Gilbert timely provided appellant with transcripts of the three video clips and advised appellant that a close-up shot of a woman’s crotch, recorded commentary by appellant, and the depiction of two men having intercourse with one woman would likely be offensive to the jury. Despite these facts and circumstances, appellant refused to consider a plea offer beyond the crime of vehicle theft. In view of this situation, appellant cannot show that he would have taken the eight-year offer had he been given different advice or had he screened the video clips in advance of trial. Appellant failed to demonstrate prejudice and the trial court properly denied his motion for new trial.
II.
EVIDENCE OF UNLAWFUL CONSENSUAL SEX
Appellant contends the trial court committed reversible error by permitting the prosecutor to prove appellant’s predisposition to commit nonconsensual sexual offenses with an adult woman by introducing evidence that “a then 20-year-old appellant engaged in unlawful but consensual sex with teenagers.”
During trial, the prosecutor moved to introduce evidence that appellant was convicted in a single case of four counts of unlawful intercourse with teenage girls when he was 20 years old (§ 261.5). Defense counsel objected to the proffered evidence. Counsel noted the then-20-year-old appellant had consensual sex with teenage girls on separate occasions and that such evidence had no logical tendency to prove disposition to engage in nonconsensual sexual offenses with an adult woman. Counsel maintained the proffered evidence was “very prejudicial” and not probative of a predisposition to commit the charged crimes. The court ultimately ruled:
“Section 1101 of the Evidence Code provides the general rule that evidence of character is not admissible to prove conduct; however, it provides that there’s an exception to that general rule. Actually, there are a number of exceptions to the general rule provided by statute, and one of those is 1108.
“Section 1108 of the Evidence Code also states that an exception to the general rule under 1101 provides that in a criminal action in which a defendant is accused of a sexual offense, evidence that the defendant committed another sexual offense is not made inadmissible by Section 1101 if the evidence is not inadmissible under Evidence Code Section 352.
“Penal Code Sections 261, 264.1, 288(a), 286, and 261.5 are all specifically defined as sexual offenses within the meaning of this statute by Section 1108.
“The Court’s considered the factors described in Evidence Code Section 352 with regard to the issue. The prior convictions that are offered have some probative value as tending to show that Mr. Severs has a character to engage in sexual conduct without regard to the legality of the conduct or the legal ability of the victim to legally consent to the act, so there’s some probative value.
“The proffered evidence appears to consist of documents showing the convictions. It does not appear to involve any undue consumption of time, nor any undue tendency to confuse issues.
“The nature of a violation of Section 261.5 is less serious than most of the charged sexual crimes in this case, and there appears to be no danger of the evidence creating any undue prejudice.
“Accordingly, the Court finds the probative value of the proffered evidence outweighs any tendency to confuse the issues, to involve undue consumption of time, or to provide undue prejudice, and the proffered evidence is admissible.”
The parties ultimately stipulated before the jury that on April 16, 2002, appellant was convicted of four counts of unlawful sexual intercourse with teenage girls, that the underlying offenses occurred in June and July 2001, that appellant was age 20 when those offenses occurred, and that appellant sustained the convictions in Solano County Superior Court case No. FCR-192708.
During her initial argument to the jury, the prosecutor observed in relevant part:
“You heard testimony that Mr. Severs has ... four felony convictions, and what are they? Sexual offenses, unlawful sexual intercourse with a minor, four different counts occurring with three different victims ... occurring over a course of one month, four different days of unlawful sexual intercourse with three minor victims under the age of 18....
“And how is it that you can consider this evidence? Well, there’s a jury instruction on it. It’s on Page 6. It’s Evidence of Uncharged Sex Acts. ... [W]hat you can ask yourself is if the Defendant Severs ....
“If the defendant did it before, he did it here; he did it this time. It’s called propensity evidence. Kind of like, ‘Well ... he committed a sexual offense there, well, he did here in this case, too.’
“And what you have – what I would submit to you is that these crimes are very similar. You have very vulnerable victims. You have an intoxicated, passed-out adult female who’s vulnerable, and why is she vulnerable? Because she can’t consent.
“And then from the previous crimes you have somebody who’s incapable of giving consent under the law; under 18 years old. You can’t give consent. It’s the same type of crime; somebody who can’t give consent. Mr. Severs is a predator. That’s what he is.”
Appellant submits the trial court abused its discretion when it admitted the challenged evidence:
“Lindsay in this case accused appellant of non-consensual sexual acts with an adult woman. In contrast, the prior convictions were based on consensual but unlawful intercourse between the 20-year-old appellant and teenage companions. Evidence that appellant engaged in consensual sexual relations with young women did not logically tend to prove a predisposition to engage in non-consensual sexual offenses with adult women. There was no suggestion, let alone evidence, that the unlawful intercourse convictions were based on conduct involving any force or taking advantage of an intoxicated person.
“The charged and uncharged acts were thus so dissimilar that the uncharged offenses lacked any probative value with respect to the charged offenses. Because the uncharged offenses did not have sufficient probative value on the asserted purposes of admission, the uncharged offenses evidence should have been excluded.”
As a general rule, evidence of a defendant’s prior conduct is inadmissible when offered by the opposing party to prove the defendant’s conduct on a specific occasion, unless it involves the commission of a crime, civil wrong, or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act. (Evid. Code, § 1101, subds. (a), (b); People v. Falsetta (1999) 21 Cal.4th 903, 911.) In 1995 the Legislature enacted Evidence Code section 1108 (Stats. 1995, ch. 439, § 2), which expanded the admissibility of disposition or propensity evidence in sex offense cases. (Falsetta, supra, at p. 911.) Section 1108, subdivision (a), provides:
“In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Evidence Code section 1108 was intended, in the case of sex crimes, to sweep away the narrow categories of admissibility of other crimes evidence that had existed under Evidence Code section 1101. (People v. Britt (2002) 104 Cal.App.4th 500, 505.) Instead, such evidence is admissible, unless otherwise excluded by Evidence Code section 352, whenever it may be helpful to the jury, on a common sense basis, for resolution of any issue in the case, including the probability or improbability that the defendant has been falsely accused. (See People v. Britt, supra, at p. 506.)
A trial court retains the discretion to admit or exclude evidence under Evidence Code section 352. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) A trial court’s exercise of its discretion under Evidence Code section 352 is reviewed for abuse of discretion and will not be disturbed on appeal absent a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner. (People v. Rodriguez, supra, at pp. 9-10.)
In People v. Harris (1998) 60 Cal.App.4th 727, the court set out five factors for evaluating the admissibility of prior offense evidence. These included: the inflammatory nature of the evidence, the probability of confusion, the remoteness in time of the prior incidents, the consumption of time involved, and the probative value of the prior offense evidence. (Id. at pp. 737-741.)
In the instant case, these factors weighed in favor of admission of the evidence. As to the inflammatory nature of the evidence, the stipulation setting forth appellant’s uncharged acts was no stronger and far less inflammatory than the testimony concerning the charged offenses. As to the probability of confusion, the record reflects a clear demarcation between evidence relating to the charged offenses involving Lindsay in Kings County and the stipulation as to the uncharged offenses involving the underage females in Solano County. Moreover, as respondent points out, the stipulation was very straightforward and left no chance for confusion. With respect to remoteness, appellant was placed on probation on the prior crimes on July 30, 2002, and that probation was revoked on March 8, 2005. He was paroled on August 8, 2005, and was not free from custody for a year when he committed the instant offenses. As to consumption of time, the stipulation was set forth in less than two pages of reporter’s transcript. The total transcript of the trial was in excess of 1,000 pages. The prior evidence consumed very little time. Finally, the proffered evidence was relevant to show that appellant would engage in sexual conduct without regard to the legality of that conduct or the legal ability of the victim to consent. The evidence tended logically and by reasonable inference to prove the issue upon which it was offered and was not merely cumulative. (See People v. Harris, supra, 60 Cal.App.4th at pp. 739-740.)
Appellant lastly argues that admission of evidence of the four prior convictions of “unlawful intercourse with teenage girls” violated his right to due process. The California Supreme Court has upheld the constitutional validity of Evidence Code section 1108 against a due process challenge in People v. Falsetta, supra, 21 Cal.4th at pages 907-908, 912-922. This court is bound by that precedent and appellant’s claim must be rejected. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III.
CIRCUMSTANTIAL EVIDENCE ADMITTED TO PROVE PREDISPOSITION
Appellant contends the trial court committed prejudicial error by instructing the jurors that evidence of uncharged offenses offered as circumstantial evidence to prove predisposition, motive, and intent was subject to a preponderance standard of proof.
The trial court instructed the jury in CALCRIM No. 1191 as follows:
“The People presented evidence that Defendant Severs committed crimes of unlawful sexual intercourse with a minor, a violation of Penal Code Section 261.5, that were not charged in this case. This crime was defined for you during the trial.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offense.
“Proof by a preponderance of the evidence is a different burden of proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it’s more likely than not that the fact is true.
“If the People have not met this burden of proof, you must disregard the evidence entirely. If you decide that the Defendant Severs committed the other sexual offenses, you may consider that evidence and weigh it together with all of the other evidence received during the trial to help you determine whether he committed the sex offenses charged in this case.
“Remember, however, that evidence of another sexual offense is not sufficient alone to find the defendant guilty of any sexual crime in this case. The People must still prove each element of each offense beyond a reasonable doubt.”
On appeal, appellant contends evidence of uncharged offenses is used as circumstantial evidence of guilt and it is thus error and a violation of due process to instruct jurors that this form of circumstantial evidence is subject to the lesser preponderance standard of proof. In People v. Reliford (2003) 29 Cal.4th 1007, 1009 (Reliford), the Supreme Court held the 1999 version of former CALJIC No. 2.50.01 correctly stated the law. That instruction, as given in the trial of that case, provided:
“‘Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense other than that charged in the case.
“‘“Sexual offense” means a crime under the laws of a state or of the United States that involves any of the following:
“‘Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
“‘If you find that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused.
“‘However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense in 1991 involving S[.]B[.], that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide.
“‘You must not consider this evidence for any other purpose.’” (Reliford, supra, 29 Cal.4th at pp. 1011-1012.)
The Supreme Court held it was not reasonably likely that a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. The court noted that nothing in the instructions authorized the jury to use the preponderance of the evidence standard for anything other than the preliminary determination whether the defendant committed a prior sexual offense in 1991 involving S.B., the victim in the Reliford case. The instructions explained that, in all other respects, the People had the burden of proving the defendant guilty beyond a reasonable doubt. (Reliford, supra, 29 Cal.4th at p. 1016.)
The Supreme Court also gave tacit approval to the 2002 revision of former CALJIC No. 2.50.01, stating:
“… The 2002 revision ... deletes the sentence, ‘The weight and significance of the evidence, if any, are for you to decide’ and inserts an additional cautionary statement: ‘If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.’ ... [W]e think the new sentence is an improvement. It provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard of proof for a conviction of the charged offenses.” (Reliford, supra, 29 Cal.4th at p. 1016.)
Respondent properly notes that CALCRIM No. 1191 is even more restrictive than its CALJIC predecessors because it expressly advises the jury “that evidence of another sexual offense is not sufficient alone to find the defendant guilty of any sexual crime in this case. The People must still prove each element of each offense beyond a reasonable doubt.” Under the doctrine of stare decisis, the decisions of the Supreme Court are binding upon and must be followed by all the state courts of California. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Appellant’s contention must be rejected under the authority of Reliford.
IV.
SUBSTANTIAL EVIDENCE: THE SODOMY CONVICTION
Appellant submits the brief anal penetration of Lindsay was unintentional and accidental. Therefore, the judgment of conviction of sodomy is not supported by substantial evidence.
In determining a claim of insufficiency of evidence, a reviewing court must ascertain whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. Simply put, if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Farnam (2002) 28 Cal.4th 107, 142-143.)
Section 286, subdivision (a) defines sodomy as the “contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” Sodomy is a general intent crime that requires the intent to do the act that causes the harm. (People v. Davis (1995) 10 Cal.4th 463, 518, fn. 15.) In the instant case, appellant pulled his penis out of Lindsay’s vagina and reinserted his penis into her rectum. Lindsay said it hurt when this occurred but she was unable to speak. Lindsay said appellant’s penis remained in her rectum for about five seconds before he reinserted his sexual organ into her vagina. At the time appellant penetrated Lindsay’s rectum, he told her, “It’s all right, baby, just hold still.” Lindsay’s rectum was so sore following the assault, that she was unable to permit Nurse Driscoll to examine the interior of her rectum.
Although Lindsay made statements that appellant “missed” and “entered the wrong hole,” the jury could have reasonably concluded that the duration of the penetration, appellant’s comments during the penetration, and the condition of her rectum following the penetration all combined to establish guilt of sodomy beyond a reasonable doubt. The judgment of conviction was supported by substantial evidence and reversal is not required.
At two points in his opening brief on appeal, appellant contends cumulative error requires reversal in the instant case. Our review of the record shows no cumulative error requiring reversal of the judgment. (See People v. Bradford (1997) 15 Cal.4th 1229, 1344.) “A defendant is entitled to a fair trial but not a perfect one.” (Lutwak v. United States (1953) 344 U.S. 604, 619.) Appellant received the fair trial to which he was entitled.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J. DAWSON, J.