Opinion
H021287.
7-18-2003
THE PEOPLE, Plaintiff and Respondent, v. ADAM TORREZ, Defendant and Appellant.
A consolidated information and indictment was filed March 25, 1998, charging defendant Adam Torrez with 31 counts of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and one count of committing substantial sexual conduct with a child under 14 (§ 288.5, subd. (a)-count 32) involving victim Carlos A. All these counts additionally alleged that defendant had substantial sexual conduct with Carlos within the meaning of section 1203.066, subdivision (a)(8). In addition, there was a tolling allegation as to counts 1 through 31.
Further unspecified statutory references are to the Penal Code.
The consolidated information and indictment also charged defendant with one count of forcible lewd acts on a child under 14 (§ 288, subd. (b)(1) — count 33), three counts of committing a lewd act on a child under 14 (counts 34-36), and one count of committing substantial sexual conduct with a child under 14 (count 37), involving victim Jane Doe (hereafter, "Jane"). All these counts also included allegations under section 1203.066, subdivision (a)(8).
On March 5, 1999, defendant waived his right to a jury trial. The court trial commenced on March 9, 1999, and continued over eight court days through May 25. On that day, the prosecution moved to amend the charging document to add an allegation pursuant to section 667.61, subdivision (b), and to dismiss counts 1 through 12, and 33 through 35. The court granted the prosecutions motions. On June 4, 1999, the court found defendant guilty of counts 13 through 32, 36, and 37, and found true all enhancement allegations as to those counts. On March 3, 2000, the court sentenced defendant to a life term plus 66 years in state prison.
On appeal defendant argues that (1) all charges concerning Carlos are barred by the statute of limitations; (2) he was denied his right of confrontation when Carlos was allowed to testify in defendants absence during an in chambers telephone conference; (3) his sentence imposed pursuant to section 667.61 violates ex post facto principles; (4) trial counsel was ineffective in his cross-examination of Carlos; (5) the courts rulings regarding Carloss testimony constituted prejudicial error; (6) cumulative error resulted in the denial of a fair trial; and (7) the court erred in failing to grant a sufficient continuance for the preparation of a new trial motion. We will affirm.
FACTS
The prosecutions case
Dr. David Kerns, who testified as an expert in the medical evaluation of possible child sexual abuse cases, reviewed a report and magnified photographs that Mary Ritter prepared of an examination she conducted on Jane on March 18, 1997. At the time of the examination Jane was eight years, nine months old, Dr. Kerns was the chairman of the pediatrics department at Valley Medical Center (VMC) and Ritter was the clinical coordinator of the Center for Child Protection at VMC. The examination and photographs of Janes external genitalia revealed a markedly narrowed hymeneal rim, which is the most frequent and consistent finding seen in cases of repeated penetrating trauma. The findings were too extensive to have been caused by a single incident, and there was no evidence of fresh or acute trauma. The findings were consistent with an attempted or actual penile penetration, and also consistent with repeated penetration by a finger or fingers.
Santa Clara police officer Filemon Zaragoza interviewed Jane on April 1, 1997. During the interview, Jane described various sexual acts involving defendant. She described his touching her genitalia, skin to skin, while she was being bathed. She described actual fondling, oral copulation, digital penetration of her vagina, and attempted penile penetration of her vagina. Jane said that this had happened more than 25 times. Although a lot of the times the touchings occurred when other people were in the home, they occurred in defendants bedroom while Jane was playing with Nintendo or other games defendant had there.
Jane testified that defendant is her fathers brother, and that he lived with her grandparents. After her parents broke up, her father lived with her grandparents also. Jane used to visit her grandparents home about once a week with her mother and brother Carlos. Defendant had his own bedroom on the second floor. He had toys and a television in there, as well as video games. Often Jane would be alone in defendants bedroom with him.
Defendant sometimes touched Jane in a way that she did not like. She did not remember when it first happened, how old she was, or what grade she was in. The first time, defendant put his hand on her vagina but she could not remember if it was over or under her clothes. The second time he touched her it was under her clothes. At a later time he put his tongue on her vagina. All these touchings happened more than twenty times, the whole time she was in the second and third grades.
Defendant also asked Jane to touch his penis. She did it because she was scared. Defendant tried to put his penis in her vagina but it hurt and she started crying. He also tried to put his penis in her rectum but she said, "No, please dont do that" and ran out of the room. Nobody else was in the room with defendant and Jane when the touchings occurred, and he would sometimes close the bedroom door. The touchings continued until Jane told her mother. After that, except for when her father died, they never went back to her grandparents house.
Jane told her mother about the touchings because she was tired of defendant hurting her. At the same time, she told her mother that Carlos had rubbed himself against her while they both had their clothes on. Carlos had to leave her house and she was not allowed to see him again. She told Carlos before he left what defendant had done to her. It was after that, and after she had told a counselor about the touchings, that she was examined by a nurse and talked to a policeman. Jane had not told anybody about the touchings before then.
Rachel is Janes and Carloss mother. Rachel and Carlos began visiting Janes grandparents home weekly in 1987. At the time, Carlos was about five and defendant was about 17. Jane joined the visits after she was born in June 1988. During the visits, defendant and Carlos were alone in defendants bedroom on a number of occasions, including overnight at Christmas. When Rachel would check on them, the bedroom door was usually halfway open, except at night when all doors would be closed. When he got older, Carlos did not want to go with Rachel and Jane to the visits. By this time, Jane was about five. Jane continued to visit her grandparents home with Rachel while she was in the second and third grades, but the visits occurred then only once or twice a month. Rachel did not remember ever going up to defendants room and finding him alone with Jane, or ever finding Jane in the room with the door closed, but defendant did have opportunities to be alone with Jane for periods of time. In March 1997, Jane told Rachel that she had been molested by defendant, which caused Rachel to stop the visits.
In order to protect their privacy, we refer to the family member witnesses and their friends by their first name only.
Carlos entered Martin House, a residential facility for juvenile offenders in Citrus Heights, in May or June of 1997. While there he attended both group and private counseling. In mid-November 1997, Carlos told his counselor that he was concerned that his sister was at risk from a certain individual with a family relation of some sort. When the counselor asked Carlos why he felt that way, Carlos revealed for the first time that he had been sexually assaulted as a child. The counselor reported the conversation to the authorities within 24 hours, on November 13, 1997.
Carlos called his mother in November 1997 and told her that he had been advised by a counselor to tell her what had happened to him. Before then, he had not said anything to Rachel about the sexual contact between defendant and him.
In mid-November 1997, Officer Zaragoza heard from Rachel that she had just learned that Carlos was also complaining of being the victim of sexual abuse. Zaragoza spoke with Carlos over the telephone on November 22, 1997. Carlos stated that he was about five or six when defendant began to fondle him at Janes grandparents home. At first defendant fondled Carlos and Carlos was made to fondle defendant. Later Carlos was forced to orally copulate defendant, and defendant sodomized Carlos. All such acts by defendant ended when Carlos was about 10 years old.
Carlos had a bowel disorder that began prior to when Rachel met Janes father. The disorder would cause Carlos to soil his pants at least once a day. He had the disorder during the whole period of time that he was visiting Janes grandparents home, and he just got over the problem a few years ago. Defendant and some other members of his family would make fun of Carlos and call him names because of his problem.
Carlos testified that he was about five years old when he first met defendant. He and his mother used to visit defendants family in their home on weekends. Defendant had toys and games and Nintendo in his room, and Carlos would spend time with defendant there. Most of the time it was just the two of them, but sometimes there were other people in the room.
Defendant first fondled Carloss penis when Carlos was six years old. The next time, defendant wanted Carlos to fondle defendants penis. Carlos was hesitant, but defendant took his hand and placed it there. Defendant told him not to tell anybody and that, if he did, he would be the one to get in trouble. Later, defendant started to orally copulate Carlos, and he asked Carlos to do the same thing to him. When Carlos said no, defendant said that if he did not do so defendant would not let him play with his toys or video games. Defendant used his hand to move Carloss head toward his penis. When Carlos was seven or eight, defendant began to sodomize him. Some type of touching occurred almost every time that Carlos visited defendant.
When Carlos was about nine years old, he started telling his mother that he did not want to go to defendants house. She would then sometimes let him stay with other relatives. Even when he did go with his mother to the visits, the touchings by defendant did not happen as often. The last touching occurred when Carlos was ten. The first person Carlos ever told about the touchings was his counselor at Martin House. He did not tell anybody about them before then because he was afraid that he would get into trouble.
Dr. Angela Rosas, a pediatrician at the U.C. Davis Medical Center who testified as an expert in the medical evaluation of possible sexual abuse, examined Carlos on December 8, 1997. During the examination she found that Carlos had some very dark spots on one side around his anus that were unusual. After consultation with other colleagues she felt assured that these spots were pigment discoloration from scarring around the anus from penetration injury. The age of the scarring was consistent with the time frame of the history of sexual abuse Carlos had described to her. Any object penetrating the anus that would be large enough to cause injury to the anus itself could cause the scarring. Carloss chronic bowel problem is seen in both children who have and children who have not been sexually abused, and the problem would not be the cause of the scarring she found.
The defense case
Defendants mother Sally testified that when Carlos first visited her home with Rachel he had very little contact with defendant because he was too young. Carlos spent more time with her grandson Manuel. When Carlos was old enough to play the Nintendo then he would play with it with defendant in defendants room. The door to defendants room was always open. When Jane came on the visits, she spent most of her time with Janes grandfather or father. Rachel spent most of the visits with Sally in Sallys bedroom, which was down the hall from defendants room.
Defendants father Johnnie testified that he has babysat Jane since she was a baby. When she visited his home, Jane was always with him. She went with him everywhere he went. Sometimes defendant and Jane watched cartoons together downstairs or in his room, and one time Jane stayed to watch cartoons with defendant while Johnnie went to the store. Johnnie did not remember ever seeing Jane in defendants room alone with him. Carlos spent most of time during his visits downstairs watching television or sleeping. Often defendant would be downstairs watching television with Carlos. Sometimes Carlos would be upstairs playing with defendant. Defendants door would always be open.
Manuel, defendants nephew, testified that he was eight years old and shared a bedroom with defendant at the time he first met Rachel and Carlos. Carlos is about three years younger than Manuel, and defendant is about six years older. During the early visits, Carlos would be under the close supervision of his mother. Carlos was not allowed to be in Manuels bedroom because he was too young. He was never alone with either Manuel or defendant in the room. If Carlos came into the room when Manuel and defendant were in there, Carlos would only be allowed to stay a few minutes before he was ushered out.
Between the ages of 10 and 12, Manuel did not live with defendant. They shared a room again when Manuel returned at age 12 until he moved out at age 20. Manuel did not see Carlos as frequently then as he had before. Nothing inappropriate ever happened during either time Manuel shared a room with defendant. The bedroom door was always kept open, even while they slept. And Manuel often had his friends Marcus, Brandon, and David visiting him when Rachel and her children were visiting. Sometimes Manuel would play basketball with Carlos. Jane spent most of the visits with her grandfather. Manuel never allowed Jane to play with the Nintendo.
Manuels friend David testified that he used to live across the street from Manuels grandmother and began visiting the home on almost a daily basis when he was about nine. That is also about the time he met Carlos. During his visits, Manuel and David would play video games, watch television, and eat. Defendant would be there. They were not allowed to close the bedroom door. They did not play with Carlos, who would usually be downstairs with the rest of the family.
During the time that Manuel did not live in his grandmothers home, David still visited the home once or twice a month. He does not recall ever seeing defendant there when Carlos was there. When Manuel returned to the home, Davids again visited almost daily. Carlos was still visiting then and Jane was a toddler. David did not play with Carlos or Jane, and her never saw Manuel or defendant play with them. Jane favored her grandfather.
Manuels friend Brandon testified that he started visiting Manuel at Manuels home in 1993 or 1994, when he was in high school. Manuel introduced defendant to Brandon. Brandon did not know Carlos, but he knew Jane. He had seen Jane in Manuels home four or five times. Sometimes Jane would come up to defendants and Manuels room when they were there, but they did not want her there. Brandon never saw defendant play with Jane.
Manuels friend Marcus testified that he visited Manuel and defendants home frequently in the past five years, during his own high school years. He did not know Manuel until then. He saw Jane at the home about two times, while somebody was babysitting her. She was always downstairs watching television, and they were usually in defendants room. Marcus did not know Carlos.
Defendant testified that he was still in high school when he met Carlos, who was then about five years old. At the time, he shared his bedroom with his nephew Manuel. Rachel and Carlos would visit about once a month. Defendant would spend 15 minutes with Carlos, at the most, during the visits. Defendant tried to be Carloss friend, but sometimes Carlos would bother him and he would ask Rachel to keep Carlos away from him. During the first year, defendant only allowed Carlos in his room once, and that was to sleep overnight. Manuel was not there at the time. Carlos was not alone in defendants room with him other than that time, and Carlos never slept in defendants room again. Defendant had toys and Nintendo in his room, but he did not let Carlos play with the Nintendo until he was nine or ten. Manuel was usually in the room when Carlos was there. They never had the door closed. Carlos spent more time with Manuel then he did with defendant.
After Jane was born, the family visits increased to about three times a month, and then decreased again when Jane was about four. Carlos did not come on most of these visits. Defendant spent most of the time during the visits at a friends house. When he was there with Jane, he would watch television with her downstairs. He was only left alone with her once, and then only for 15 minutes while his father went to the store. When Jane was four, she told Rachel that defendant had touched her the wrong way, but he denied it. Defendant tried to avoid Jane after that.
Carlos was recalled and testified via telephone that in June or July 1997 he began using the handle of a toilet plunger to penetrate his own rectum. He did this about five times, the last time in August 1997. He never put anything else in his rectum.
Jane was recalled and testified that the one time her brother touched her inappropriately he just rubbed himself up against her. He never did anything to her at any time other than that. She once told her mother before she was eight about defendant touching her. She did not remember how old she was, but remembered saying that defendant once touched his hands on her private parts, hurting her. Defendant was nicer to her after that, and did not hurt her as much when he touched her. Defendant continued to touch her, but she waited to tell her mother again because she was afraid and did not know if defendant would hurt her.
DISCUSSION
Defendant first argues that the charges concerning Carlos are barred by the statute of limitations and should be dismissed. He argues that the tolling provisions of section 803, subdivision (f), were not satisfied because there was no evidence that at least one crime was committed within the limitations period. He further argues that the tolling provisions of section 803, subdivision (g), were not pleaded and were not satisfied by clear and convincing evidence at trial independently connecting defendant to the charged offenses.
The People argue that section 803, subdivision (g), permitted the filing of the charges here against Carlos, that the tolling allegation in the charging documents was sufficient to put defendant on notice that section 803, subdivision (g), applied, and that clear and convincing corroborating evidence existed that defendant engaged in substantial sexual conduct with Carlos.
Section 803, subdivision (g), provides in pertinent part, "(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section . . . 288 . . . . [P] This subdivision applies only if both of the following occur: [P] (A) The limitation period specified in Section 800 or 801 has expired. [P] (B) The crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual, and there is independent evidence that clearly and convincingly corroborates the victims allegation. No evidence may be used to corroborate the victims allegation that otherwise would be inadmissible during trial. Independent evidence does not include the opinions of mental health professionals."
The lewd acts involving Carlos of which defendant was convicted, counts 13 through 31, occurred in 1990 and 1991. The statute of limitations for those counts is six years. (§ 800.) Section 803, subdivision (g), was enacted in 1993. (Stats. 1993, ch. 390.) Because section 803, subdivision (g), was not enacted after the expiration of the applicable limitations period, its application to defendant does not violate the Ex Post Facto clause. (See, Stogner v. California (2003) 156 L. Ed. 2d 544, ___ U.S. ___ .)
As set forth above, section 803, subdivision (g) allows an otherwise time-barred action for sexual abuse to proceed if the prosecution files a criminal complaint within one year of the victims allegation to the police. Because the prosecution filed an indictment against defendant on March 4, 1998, alleging the charges involving Carlos less than one year after the charges relating to Carlos were reported to the police in November 1997, the action would be timely under the terms of section 803, subdivision (g). (Cf. § 804, subd. (a).)
Defendant argues that the tolling provisions of section 803, subdivision (g), are inapplicable because they were not pleaded in the consolidated information and indictment. The tolling allegation, included in the charging document after count 32, states: "It is further alleged that a complaint containing the offenses charged in Count One through Thirty-One was filed within one year of the date of a report, to wit: on or about November 8, 1997, to a responsible adult and agency, to wit: Julian Lawrence, by a child under 18 years of age, to wit: Carlos A[.], of the age of 16 years, that said child was the victim of a crime described in Penal Code Section 288.5(a), and furthermore, that any applicable limitation period specified in Penal Code Sections 800 and 801 has expired with respect to at least one alleged offense, and the said defendant, Adam Torrez, has committed at least one violation of Penal Code Section 288a [sic] within the limitation period specified for that crime in Penal Code Sections 800 and 801."
The tolling allegation does not state the specific subdivision of section 803 that the prosecution was relying upon. However, the language appears to follow the statutory language of section 803, subdivision (f). The People argue that any error in defectively pleading the tolling provisions under section 803 does not require reversal.
"(1) Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date of a report to a responsible adult or agency by a child under 18 years of age that the child is a victim of a crime described in Section . . . 288 . . . . [P] (2) For purposes of this subdivision, a `responsible adult or `agency means a person or agency required to report pursuant to Section 11166. This subdivision applies only of both of the following occur: [P] (A) The limitation period specified in Section 800 or 801 has expired. [P] (B) The defendant has committed at least one violation of Section . . . 288 . . . against the same victim within the limitation period specified for that crime in either Section 800 or 801." (§ 803, subd. (f).)
"No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits." (§ 960.) We consider the issue here to be one of a variance between pleadings and proof. As our Supreme Court stated some time ago, in People v. LaMarr (1942) 20 Cal.2d 705, 711, "If there be any point to defendants contention it is purely a question of variance between pleading and proof. An immaterial variance should be disregarded [citations]. The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense. [Citations.]"
Defendant has not, at the trial court level or in this court, articulated any prejudice whatsoever as a result of the variance between pleading and proof. He was on notice that the prosecution intended to toll the normally expired statute of limitations pursuant to section 803. It is inconceivable that the defense presented would have been altered in any way had the charging document alleged tolling language pursuant to section 803, subdivision (g), rather than section 803, subdivision (f). Any error in the tolling language of the consolidated information and indictment does not require reversal. (Accord, People v. Lamb (1999) 76 Cal.App.4th 664, 675-676; see also, People v. Posten (1980) 108 Cal. App. 3d 633, 648-649, 166 Cal. Rptr. 661.)
Defendant also argues that there was not clear and convincing evidence that independently corroborated Carloss allegations of sexual misconduct as required by section 803, subdivision (g). We disagree.
The tolling provisions of section 803, subdivision (g), only come into play if the allegations involve substantial criminal conduct as described in section 1203.066, subdivision (b), and there is independent evidence that clearly and convincingly corroborates the victims allegations. (§ 803, subd. (g)(2)(B).) Section 1203.066, subdivision (b), defines "substantial sexual conduct" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." Carlos testified that defendant fondled him, sodomized him, and had Carlos orally copulate defendant. Thus, Carloss testimony involved substantial criminal conduct as described in section 1203.066, subdivision (b).
There was also independent evidence that clearly and convincingly corroborated Carloss testimony. Evidence of other similar incidents of sexual misconduct, whether charged or uncharged, can be used to corroborate a victims allegation of sexual abuse under section 803, subdivision (g). (People v. Yovanov (1999) 69 Cal.App.4th 392, 403-404; People v. Mabini (2001) 92 Cal.App.4th 654, 658-659; People v. Zandrino (2002) 100 Cal.App.4th 74, 84-85.) Thus, evidence that defendant committed similar sex offenses against Jane constituted sufficient corroboration for purposes of section 803, subdivision (d). In addition, Dr. Rosas testified that the scarring around Carloss anus was consistent with the time frame of the history of sexual abuse by defendant that Carlos had described to her. We will not dismiss the charges concerning Carlos.
Rights of confrontation
After defendant testified, defense counsel informed the court that he wished to recall Rachel, Jane and Carlos. During the discussion, which occurred around 10:40 a.m. on March 26, 1999, the court ordered Rachel and Jane returned and asked if they could be available that afternoon. The court then ordered defendant to return at 2:00 p.m., and indicated for the record that defense counsel was going to call Carlos "and talk with him concerning the plunger that is in the medical records."
Carlos was still residing at the Martin House.
After recessing while defense counsel made the telephone call, the court reconvened at 11 a.m. with the district attorney and defense counsel present, and Carlos on the telephone. Defense counsel waived defendants presence. After Carloss telephone testimony as stated above, and termination of the telephone call, the following occurred.
"THE COURT:
The reason that you waived your clients presence was that he left; right?
"[DEFENSE COUNSEL]: It was my fault, your Honor. He asked me to come back at 2:00 and I said yes, forgetting we were going to have the conversation.
"THE COURT: And we didnt know we could get the boy this quickly because he had to be pulled out of class.
"[DEFENSE COUNSEL]: I will advise my client. Maybe we can make a brief transcript of the conversation, and my client can have . . . it prior to the next court date." The court then recessed until 2:00 p.m., at which time defendant was present and Jane and Rachel were recalled to testify.
Defendant now argues that the questioning of Carlos by telephone constituted a denial of his rights of confrontation, in that he did not have a face-to-face meeting with Carlos, and the court, as the trier of fact, was unable to observe Carloss demeanor. He argues that counsel had no authority to waive defendants presence due to counsels error. He further argues that he was prejudiced as Carloss telephone testimony was important to the prosecutions case, but was intrinsically doubtful. The People argue that defense counsels waiver of Carloss personal presence before both the court and defendant was valid and binding, and that defendant suffered no prejudice because of it.
"The right guaranteed by the Confrontation Clause includes not only a `personal examination, [citation], but also `(1) insures that the witness will give his statements under oath . . .; (2) forces the witness to submit to cross-examination . . .; [and] (3) permits the [trier of fact] that is to decide the defendants fate to observe the demeanor of the witness in making his statement . . . . [Citation.]" (Maryland v. Craig (1990) 497 U.S. 836, 845-846, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (Craig).) "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Id. at p. 845.) "The Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness[s] testimony . . . ." (Delaware v. Fensterer (1985) 474 U.S. 15, 22, 88 L. Ed. 2d 15, 106 S. Ct. 292; Craig, supra, 497 U.S. at p. 847.) "In sum, our precedents establish that `the Confrontation Clause reflects a preference for face-to-face confrontation at trial [citation], a preference that `must occasionally give way to considerations of public policy and the necessities of the case, [citation]." (Craig, supra, 497 U.S. at p. 849.) "Indeed, one commentator has noted that `it is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation. [Citation.]" (Id. at p. 850.)
"`In both civil and criminal matters, a partys attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters; in other words, `counsel is captain of the ship. [Citation.] The attorney may not, however, bind the party as to certain fundamental matters. [Citations.] For example, in a criminal case, only the defendant personally may waive a jury trial. [Citations.]" (People v. Masterson (1994) 8 Cal.4th 965, 969, 884 P.2d 136, italics omitted.) In this case, counsel waived defendants presence during telephone testimony in chambers during a court trial. Our Supreme Court has held "`that the defendants absence from various court proceedings, "even without waiver, may be declared nonprejudicial in situations where his presence does not bear a `reasonably substantial relation to the fullness of his opportunity to defend against the charge." [Citation.]" (People v. Carpenter (1997) 15 Cal.4th 312, 376, 935 P.2d 708.)
Defendant and the court were both present during Carloss original testimony and cross-examination, and during the examination and cross-examination of Dr. Rosas. Defense counsel received Dr. Rosass additional medical reports at the time she testified, so he could not cross-examine Carlos at the time he originally testified about the information in the additional medical reports regarding Carloss self-infliction of a toilet plunger in his rectum. Instead, after defendant testified in his own behalf, defense counsel persuaded the trial court to permit him to recall Carlos regarding that information. Given Carloss location, he would not be available to testify that day except by telephone call. The telephone call to Martin House was then made and, instead of waiving the opportunity to question Carlos, defense counsel expressly waived defendants right to be present and impliedly waived defendants right to have Carlos testify in person in order to get the information on the record. Moreover, defendant apparently received a transcript of the testimony. Although Carloss testimony was directly relevant to the charges against defendant, defendants absence at the brief proceeding did not bear a reasonable relation to the fullness of his opportunity to defend against the charges. (See, People v. Carpenter, supra, 15 Cal.4th at p. 378.) Defense counsels partial waiver of defendants confrontation rights was binding on defendant. (See also, People v. Rios (1992) 9 Cal.App.4th 692, 702 [defense counsels acceptance of the terms of an in chambers meeting constituted a binding partial waiver of the defendants right to confrontation].) No prejudicial error has been shown.
As stated above, an allegation under section 667.61, subdivision (b), seeking a life term on grounds that defendant had been convicted of sex offenses against two different victims in this proceeding, was orally added to the consolidated indictment and information during trial. The court found the allegation true, and the court subsequently imposed a life term for count 36, a violation of section 288, subdivision (a), involving Jane. Defendant argues that the application of section 667.61 in his case violates ex post facto principles because his offenses against Carlos occurred in 1990 and 1991, prior to the operative date of the statute. We disagree.
The ex post facto clauses of the federal and state Constitutions prohibit the imposition of punishment which, after commission of a crime, has been increased or made more burdensome. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9; In re Paez (1983) 148 Cal. App. 3d 919, 922, 196 Cal. Rptr. 401, disapproved on other grounds by In re Ramirez (1985) 39 Cal.3d 931, 938, 218 Cal. Rptr. 324, 705 P.2d 897.) "The critical question is whether the law changes the legal consequences of acts completed before its effective date." (Weaver v. Graham (1981) 450 U.S. 24, 31, 67 L. Ed. 2d 17, 101 S. Ct. 960.)
Section 667.61 became effective November 30, 1994. (Stats. 1994, 1st Ex. Sess., ch. 14, § 1, p. 8570.) The section 288, subdivision (a) offense involving Jane, count 36, occurred in 1997, long after the effective date of section 667.61. Section 667.61 provides that a person convicted of violating section 288, subdivision (a), who has been convicted in the present case or cases of committing such an offense against more than one victim shall be punished by imprisonment for 15 years to life. (§ 667.61, subds (b), (c)(7) & (e)(5).) We agree with respondent that the matter that precipitates the life term is the commission of a qualifying offense after the effective date of the statute. The sentencing scheme in section 667.61 is analogous to recidivist enhancements that increase punishment for a crime committed after the effective date of the statutory change because of a conviction for a crime prior to that date. (See, e.g., People v. Snook (1997) 16 Cal.4th 1210, 947 P.2d 808 [enhanced penalty for repeat driving under the influence offenders]; People v. Williams (1983) 140 Cal. App. 3d 445, 189 Cal. Rptr. 497 [enhancement under section 667.5, subd. (b), for prior convictions predating the enactment of the statute].) "In the context of habitual criminal statutes, `increased penalties for subsequent offenses are attributable to the defendants status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense. [Citation.]" (People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal. Rptr. 623, 694 P.2d 736.)
Here, defendant was convicted of a qualifying offense, count 36, after the effective date of section 667.61. The court imposed a life term for that count under section 667.61 because defendant was a repeat offender. The sentence arises as an incident of the later offense rather than constituting a penalty for the earlier offense. No ex post facto violation has occurred.
Ineffective assistance of counsel
Defendant raises several claims of ineffective assistance of trial counsel based on counsels cross-examination of Carlos. He claims that counsel entered into stipulations that were later used against him, and failed to pursue important impeachment of Carlos. He claims counsels actions were not reasonable or tactically justified. Lastly, he claims that he has been prejudiced by counsels actions.
To obtain reversal due to ineffective assistance of counsel, a defendant must establish that counsels performance fell below an objective standard of reasonableness under prevailing norms and then demonstrate a "reasonable probability" that but for counsels professional errors, the result of the proceedings would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Lucas (1995) 12 Cal.4th 415, 436, 907 P.2d 373; People v. Pope (1979) 23 Cal.3d 412, 423-425, 152 Cal. Rptr. 732, 590 P.2d 859.) When the claim of ineffective assistance of counsel is made on direct appeal, the claim will be sustained "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal. Rptr. 855, 659 P.2d 1144; People v. Zapien (1993) 4 Cal.4th 929, 980, 846 P.2d 704.) As the California Supreme Court has explained, "The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsels part and seldom establish a counsels incompetence. . . . In the heat of a trial, defendants counsel is best able to determine proper tactics in the light of the [factfinders] apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. . . . [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1140, 954 P.2d 384, internal quotation marks omitted.) With these principles in mind, we will consider each of defendants claims.
Prior to trial, defense counsel agreed to stipulate that neither Jane nor Carlos would be questioned regarding her allegation of his molest of her. Defendant argues that counsel negligently entered into these stipulations. We find that defendant cannot show any prejudice from counsels decision. During the prosecutions case, the court heard testimony that Carlos had allegedly rubbed himself against Jane while they were both fully clothed. The court later decided that the incident could be further explored through questioning of Jane, but not Carlos, and allowed defense counsel to recall Jane for that purpose. Upon recall, Jane testified that Carlos did not do anything more than rubbing himself up against her. Accordingly, defendant cannot show that he was prejudiced by counsels stipulations.
During the testimony of Dr. Rosas, defense counsel was given some additional medical reports relating to her examination of Carlos. The reports disclosed that Carlos reported molesting other children starting at about 13 years of age, that he resided in a group home for juvenile "perpetrators," and that he admitted recently using the handle of a toilet plunder to penetrate his own anus. The reports further state that Carloss group home counselor reported Carlos had "been caught" masturbating in his room, in violation of house rules, and that the counselor suspected that Carlos was having sex with other male housemates. Although the reports were considered by the court in determining whether Carlos should be recalled to testify, they were never offered as substantive evidence at trial. Nor, with the exception of the information about the self-penetration with the toilet plunger, did counsel cross-examine Carlos about the information in the reports. Defendant argues that all of this information was admissible and important, and that counsels failure to pursue it was ineffective assistance.
Defense counsel had received one medical report prior to trial.
The court heard testimony that Carloss alleged molest of Jane simply involved his having rubbed himself against Jane while they were both fully clothed. The court also heard testimony that Carlos was living in a group home for juvenile offenders, and that he was undergoing both group and individual counseling. The court reviewed all the medical reports involving Carlos and allowed defense counsel to recall Carlos based on the information in the additional reports. Thus, counsel had presented to the court, and the court was well aware of, Carloss reported history. As the record does not affirmatively disclose that counsel had no rational tactical purpose in not further pursuing the information in the additional reports during his recall of Carlos, we will not attempt to second-guess counsels reasons for not doing so. Defendants alternative argument that court rulings barring such impeachment, "if such there be," were prejudicial error must fail as no specific court rulings are discussed.
During the testimony from Carloss Martin Home counselor, the prosecutor asked the counselor, "And when confronted with something that he had done and in effect been caught at, did [Carlos] always lie?" The counselor responded, "No. What he would do is, I was working with him on talking about its okay if youve done something. You know. We can work it out. And he started to buy into that way of thought and he started to be more — he would catch himself and say, you know what? I want to say no. I say yes. He would be more honest and truthful even though he knew what the consequences were." Defendant argues that defense counsels failure to object to this testimony as an inadmissible lay opinion as to Carloss truthfulness constituted ineffective assistance.
Evidence relating to the credibility of a witness is always relevant. "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: . . . [P] (e) His character for honesty or veracity or their opposites." (Evid. Code, § 780.) The counselor who testified here had been involved in Carloss counseling for some six months prior to November 1997, when Carlos first reported the sexual abuse, and for almost two years prior to defendants trial. Given the length and the nature of his relationship with Carlos, we believe that the counselor was qualified to render an opinion on Carloss character for honesty and veracity. (See e.g., People v. Smith (1989) 214 Cal. App. 3d 904, 915, 263 Cal. Rptr. 155; People v. Sergill (1982) 138 Cal. App. 3d 34, 39, 187 Cal. Rptr. 497.) Defense counsel cannot be faulted for failing to object to the counselors testimony. Defendant has not carried his burden of showing ineffective assistance of counsel.
Cumulative error
Defendant argues that he was denied a fundamentally fair trial and reversal should be ordered due to an accumulation of the individual errors of trial counsel. As we have found no individual errors, we will not further address this issue.
Continuance of sentencing
On December 13, 1999, more than six months after the court pronounced its finding of guilt, defendant filed a motion to substitute in new retained counsel and to continue sentencing, then set for January 3, 2000, for the purpose of allowing new counsel to prepare for sentencing and a motion for new trial. On January 11, 2000, the court granted defendants motion to substitute in new retained counsel. On January 13, defendant filed a new motion to continue sentencing. The court denied the continuance motion on January 14, but set the sentencing hearing for February 15. The court finally sentenced defendant on March 3.
Defendants January 13, 2000 continuance motion consisted of a request for additional time in order to investigate and prepare a motion for new trial based on alleged ineffective assistance of defendants trial counsel. Attached to the motion was a declaration from new counsel indicating that trial counsel had stated that he had not used any investigator or experts to prepare for trial. Also attached was a declaration of another attorney claiming that, in his opinion based on the information in trial counsels file and trial counsels admission that he did not have an investigator, the duty of effective representation was not satisfied in this case. In ruling on the motion the court stated, "I was the trial judge in this matter, as you know, and it was a Court trial and I believe the victims. I looked at their credibility; I looked at the victims and I believed them. I thought that [trial counsel] did a very good job. I thought the evidence was overwhelming." "I think this case was prepared and I stand on my ruling that I believe those victims. I had a chance to look at them. It was a Court trial. We took a lot of time, I took copious notes, and I reviewed my notes, and so your motion is denied."
Defendant argues that the court abused its discretion in refusing to grant a continuance to prepare a new trial motion. He argues that good cause for the continuance "was abundantly established by the combination of what new counsel showed and what the trial court knew." We find no abuse of discretion.
A continuance in a criminal proceeding "shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) The trial court has broad discretion to grant or deny a request for a continuance, and the defendant has the burden of establishing an abuse of judicial discretion. In determining whether a denial of a continuance amounts to a denial of due process, the appellate court looks to the circumstances of each case and the reasons presented for the request. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, 959 P.2d 183; People v. Howard (1992) 1 Cal.4th 1132, 1171-1172, 824 P.2d 1315.)
In this case, defendant did not seek to have new counsel substituted in until December 1999, more than six months after the court had pronounced its finding of guilt. New counsels January 2000 motion for a continuance in order to investigate and prepare a new trial motion was filed over a month later. The motion indicated that defendant had already begun investigating the possibility of seeking a new trial based on alleged ineffective assistance of trial counsel. The court stated that it felt that trial counsel had prepared the case and did a good job. Although the trial court denied the request for a continuance, it set the sentencing hearing for over another month later, effectively giving defendant additional time to continue his investigation. Defendant was not sentenced until March 3, 2000, almost three months after defendant sought substitution in of new counsel, and nine months after the trial court pronounced its finding of guilt. On this record we cannot say that defendant was not granted sufficient time to investigate and prepare a new trial motion. No abuse of discretion has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Premo, Acting P.J., and Elia, J.