People v. Wareham

Full title: THE PEOPLE, Plaintiff and Respondent, v. JEFFREY CRAIG WAREHAM, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

Date published: Aug 1, 2011

No. A128406 (Cal. Ct. App. Aug. 1, 2011)

Opinion

A128406

08-01-2011

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY CRAIG WAREHAM, Defendant and Appellant.

Pollak

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. H46871)

Defendant Jeffrey Craig Wareham appeals from his conviction for four counts of aggravated sexual assault on a child and one count of ongoing sexual abuse stemming from sexual abuse of his daughter, M. He argues that the jury should have been instructed on lesser included nonforcible offenses and should have been given a specialized definition of "force." He also argues that the trial court improperly commented on the use of inconsistent statements, improperly allowed the prosecutor to examine the sexual assault nurse regarding her interview of M., and erred by admitting testimony on child sexual abuse accommodation syndrome. We shall affirm.

BACKGROUND

Prosecution evidence

Defendant was born in November 1972. M. was 13 years old in July 2008, when she reported her father's sex abuse to police. She was 15 years old at the time of the trial.

M. testified that she moved in with her father and her grandparents when she was seven years old. Before that she lived with her mother, T.E. When she was 10 or 11 years old she and her father moved into an apartment together, where she had her own bedroom. At some point, defendant's brother Justin began staying at the apartment. He slept on an air mattress in the living room.

M. testified that as a small child she lived with her mother in Vacaville. No one else lived with them. When she was in second grade, she was surprised to learn that she would be moving in with her father. She was to live with him because her mother "was a drug addict to meth and she wasn't doing very well. She didn't have a job. She was just living off of child support and my mom told me that she said she was suicidal one day at court so . . . I moved in with my dad."

When M. was six or seven years old, she and her father lived with defendant's parents and defendant "grabbed me in a way I didn't like," on her buttocks. Other times, he would have her touch his penis when he was in front of the computer or in the bathroom. She did not remember how he had her touch him but testified that this happened more than 10 times. While she was touching him, defendant would rub her stomach or touch her buttocks. He also touched her vagina "[p]robably less than five" times, while she and her father were living with her grandparents. When M. was "about nine or ten" defendant began having her perform oral sex on him. This happened "[a]t least once a month" while they lived with defendant's parents. If M. did not comply, defendant would "grab my arms and shake me or he'd hit me in the face." She was scared of defendant and never told anyone what was happening.

When M. was 10 or 11 years old, she and her father moved into an apartment by themselves. She had her own room. M. testified that "When I turned 10—between 10 and 11 is when he started putting his penis into my vagina. [^] [I]t would happen [ ] at least twice a month and he'd—he just would have me just come over to him and he'd just start." She remembered one time when they were in the bathtub and defendant "put some KY onto his penis and he started forcefully putting it in my vagina." Defendant told M. that "it doesn't hurt. It's just pressure," but M. testified that it hurt. She did not know if his penis "went all the way in. I don't remember." However, she testified that "I don't know if the very first time he went all the way in, but after a few—like a month or so after, I knew it went all the way in." She believed that it did so every time he had sex with her after that.

Defendant stopped molesting M. "for about three months" when he had a girlfriend, Janelle, and was considering proposing to her. Defendant and Janelle dated for about one year. Defendant stopped molesting M. when Janelle rejected his proposal and "he was depressed." The molestations then resumed and defendant would vaginally penetrate M. "two or three times a month." Defendant also showed M. pornographic videos and told her "to act out what the girl was doing." One time when this happened M. testified that "I was just giving him a blow job and then he told me to go into his room to go get the KY and a dildo." When she returned with these items "he pulled my pants down and he started putting KY on the dildo." Defendant then "turned me around and he started putting the dildo into my rectum." M. began to cry, but "[h]e kept just putting it in and then taking it out." He then instructed M. "to get on him," and put his penis in her vagina. M. believes that she was "[m]aybe 12 or 11" when this happened.

M. testified that defendant anally penetrated her one time "accidentally]." "[W]e were doing penis to vagina and he came out and I guess he didn't' think he did and then I felt it go in my rectum." Defendant once asked M. to wear a pair of thong underwear he had purchased for Janelle. While she wore them, "[h]e was videotaping me, asking me questions, and pretty much mimicking Girls Gone Wild." Defendant also filmed M. and "made me touch myself" under her underwear. On another occasion, "[h]e made me do the splits." After defendant filmed M. he "told me to go next to him and he showed me that he deleted it." M. testified that defendant only filmed her once. M. remembered two occasions where defendant made her engage in a "69" position during which they performed oral sex on each other.

When M. was 12 or 13, defendant would sometimes vomit after molesting her. Around this time, he told her, " 'I'm sorry. I really am. I'm gonna try to get help,' " after molesting her. He said this to her "[m]ore than I can count," but did not stop sexually abusing her.

M. missed her mother but defendant would not allow her to see or speak with T.E. In the summer of 2007, defendant told M. that she had to have sex with him and that then he would arrange for her to see her mother. M. agreed to have sex with defendant and then she was allowed to contact her mother on the phone and to send her letters. In August 2007, she was allowed to see her mother. Defendant drove her to the rehabilitation program where her mother was staying.

Although M. saw her mother many times from August 2007 through July 2008 when she went to the police, she never told her mother what defendant was doing "because I was scared because he was threatening me saying that he was—that if I told I was going to an orphanage and then no one was going to want me and I believed him."

M. testified that she saw her uncle Justin "like a big brother," and felt that she could confide in him or go to him for protection. She did not do so, however, "[b]ecause I knew if I told, that since Justin's parole had to be in Alameda County, that there would be no one else for him to go to and he might end up on the street."

M. testified that defendant also sexually assaulted her in May 2008. She entered his bedroom while he was working on the computer "[b]ecause I wanted to discuss what we were getting for my uncle's birthday. [¶] . . . [¶] He looked at me and he didn't say anything at first and then he started pulling his pants down. [¶] . . . [¶] . . . I didn't say or do anything and he said he didn't care about that right now, about . . . my uncle's birthday and he pulled his pants down and he said, 'Suck it.' " M. told him, " 'No, I'm not going to do it,' " and defendant "stood up from his computer chair and he turned me around and pushed me onto the bed, onto his bed." M. began to cry and tell him, " 'Stop.' " Defendant "pulled my pants down and then he . . . started putting his penis into my butt." She "was holding onto the sheets trying to get away." M. "felt pain in my rectum and I kept hanging onto the sheets hoping it . . . would end and he kept going until he ejaculated." Defendant did not hit M., but she was frightened. When he stopped, M. was still crying and defendant said to her, " 'Wow, you're a trooper.' " Defendant was laughing when he said this.

On July 27, 2008, M. went to the mall with her father. At the mall they purchased clothing that M. needed and, at defendant's suggestion, went to a Victoria's Secret store. M. testified that she did not like going there. Defendant purchased "[s]ome undergarments" that M. chose. They also purchased "[s]ome underwear[] and bras" at Macy's, which M. also chose. As they were leaving the mall, a woman approached M. and gave her a brochure about auditioning for a commercial or a television show. M. was excited because "I could tell she wasn't going up to random people because she passed by a group of girls and she went up to me." M. wanted to audition but testified that her father "said maybe. And when we got home he said, 'I'll think about it,' and I kept asking him, but he kept—didn't respond. And then we just never went."

When they returned from the mall, defendant "was in his room watching TV on his computer and I was watching TV in the living room. [¶] . . . [¶] It came around nighttime and . . . he just . . . came in the room saying I need to get my PJs on and he went to the video store." Defendant was gone approximately 15 minutes. When he returned, M. was watching television. Defendant began playing the video he had rented. M. had put on her pajamas, a "little purple top and . . . capris, I believe." Defendant went into the kitchen and "got a blender out and some ice and this type of alcohol-looking drink. [¶] . . . [¶] It was like it was this bottle that he had that was in his like . . . alcohol beverage shelf." Defendant used the blender to make a "red, pinkish" drink. He put the drink into cups and told M. to drink some. She asked what it was and defendant told her it was a margarita. M. "was thinking I'm not old enough, but he kept saying drink this." S he "took a sip and I thought it was nasty, but . . . then he said you need to keep drinking it. [¶] . . . [¶] I was trying to . . . resist but he kept looking at me and saying you need to drink it. [¶] . . . [¶] Like when he was paying attention to the movie . . . I wasn't really trying to drink the margarita, but every time he looked at me I took a little sip. [¶] . . . [¶] Then when I was done, then he made me some more and then he said keep drinking."

After the second drink, M. "was just a little bit dizzy. Not a whole lot. And I just sat on Justin's bed and we just continued watching the movie." Defendant was sitting on the loveseat. When the movie ended, defendant told M. "to come closer to him." She believed that "[s]omething bad was going to happen. [¶] I could feel it in my gut. . . . [¶] . . . [¶] When I got closer to him he started pulling his pants and underwear down. [¶] . . . [¶] I was freaking out, like, not this again." After defendant had removed his pants and underwear, "[h]e said come over and suck it." M. understood this to mean "[t]hat he wanted me to give him a blow job." She told him "no." "He just looked at me and then he started forcefully pulling my head down. [¶] . . . [¶] He grabbed the back of my head . . . ." She tried to resist by pulling back but "he was stronger than me so he was forcefully making me give him a blow job." This activity continued for "not very long." When M. took her mouth away, she "was scared and he got up and he moved to the front of the sofa and I got up and he said lay down and I kept saying, 'no , no, stop. No.' " M. testified that, "since I was resisting, he pushed me onto the . . . air mattress." "Then he got onto his knees and started pulling me closer towards him. [¶] "I kept saying, "no. Stop. I'm gonna call the cops. Stop." Defendant replied, "You better not," and continued to pull her closer. At some point, defendant placed his hand on her throat and "was squeezing a little bit."

Once M. was on her back, defendant grabbed her by the waist and pulled her towards him and began pulling her pajama bottoms and underwear off. Defendant then "started putting his penis into my vagina." "[H]e just started having sex with me and then I kept trying to resist by putting my hands on his thighs, trying to push away." Defendant then "took his penis out of my vagina and flipped me over onto my hands and knees." M. continued to try and resist him. He reinserted his penis into her vagina. M. did not remember how long this continued, but continued to tell defendant to stop. Defendant said nothing in response. Eventually he "ejaculated into a napkin." Defendant then told M. "to go clean up and go to bed." She did not see what he did with the napkin. She went to the bathroom and "took a quick shower." She still felt dizzy. After she finished showering, she dried off with a towel. She and her father had separate towels that they used, but both were in the same bathroom. She told defendant she was dizzy and he gave her "Tylenol or an aspirin."

M. then went to her bedroom and "I just laid there in my bed thinking about how I said I was gonna call the cops and then he went into his room and he fell asleep." She thought about the fact that she had threatened to call the police "[a] few times" previously, but had never done so. She waited until defendant fell asleep then got dressed. "I was thinking about how enough was enough . . . . [¶] How it's been going on too long." She decided she would inform the police. After dressing, she got a bag out and "got a few of the important belongings." "I put in my . . . phone and a picture of my mom and my wallet." She left the house and used a payphone to call the police. An officer arrived and took M. to the police station.

The police took a breathalyzer test, which revealed a blood alcohol level of .019 percent, and interviewed M. After the interview, the police took her to Children's Hospital in Oakland where she was examined and spoke with a social worker. From the hospital, M. was moved to Calico Center where she was again interviewed.

On cross-examination, M. testified that her father expected her to perform an unfair amount of the household chores. When she lived with her father, he insisted that she complete her homework every night before he allowed her to play with her friends. She was an A or a B student at the time. Since defendant was arrested and M. began living with her mother, she is a C student. She testified that her mother also insists that she complete her homework. When her father was employed, he was able to take her to theme parks and on vacations, but when he took a buyout, they did these things less frequently and by Easter of 2008 he was not able to afford to do these things for M. at all. M. enjoyed going to theme parks, and once she was living with her mother began going "a lot." "Any time on the weekends when there's no homework."

M. testified that defendant is "kind of strict; that he would not let her wear makeup, have a boyfriend, paint her nails, dye her hair, or use social networking sites on the internet. M. has a cousin named Kaitlin who is the same age. They see each other several times each year. The girls are very close and sometimes confide in each other. Kaitlin was allowed to do all of the things that M. was forbidden to do by defendant. M. believed her father was unfair not to allow her to do those things. She talked to her mother "about how mad I got" that he would not allow her to do those things. M. believed that if she were living with her mother, she would not have those restrictions. M. testified that "I wasn't trying to think about how to get back to her. I just knew I wanted to be with her again," and that she spoke with her mother about moving back in with her.

M. testified that defendant did not hit her on the night of July 27, but only pushed her. However, she told police that when she told defendant she would call the police if he did not stop assaulting her, he said, " 'You're not calling the police on me.' And then he starts hitting me." She told the police that defendant hit her "[m]aybe five times or more" on her face. Also contrary to her trial testimony, M. told the doctors and the social worker who examined her the night of July 28 that she had not taken a shower or a bath after the assault.

Defendant was arrested the morning of July 28 and transported to a police holding facility, where his clothes were collected and he was given a paper jumpsuit. While in detention, defendant was given a bedroll. After being transported to two different facilities, physically examined, and stripped of his belongings including his clothing, sheriff's deputies found a pair of pink women's underwear in the bedroll. Defendant denied ever having seen them and did not know how they came to be in the bedroll.

The trauma nurse who examined defendant shortly after he was arrested testified that she conducted a physical examination in which she looked for "any kind of scars or skin lesions, tattoos, any identifying marks, as well as looking for any kind of secretions, anything dried or fiber that I would be able to see, foreign materials on the skin or body." She also scanned defendant with a Wood's lamp, which is an ultraviolet light that illuminates any secretions including saliva as well as hair and fiber. She found no secretions, hair or fiber. She also collected fingernail scrapings, a buccal swab from defendant's cheek, performed a genital examination, collected pubic hair, swabbed defendant's penis and scrotum, and took a blood sample. She did not observe or collect any dried secretions, fibers or loose hairs or semen from defendant. Defendant told the nurse that he had not bathed, brushed his teeth, eaten or had anything to drink since the previous day.

The criminalist who examined the sexual assault kits collected from M. and defendant, and who was qualified as an expert in DNA testing testified that the oral, vaginal, and anal swabs collected from M. did not contain semen. She found a single spermatozoon and epithelial (skin) cells on one of the penile swabs collected from defendant. The epithelial cells were from two individuals.

Dr. James Crawford testified as an expert on sexual assault examinations. He had viewed M.'s sexual assault examination and testified that she was "a healthy adolescent female who was fully pubertal, meaning she physiologically looked like somebody who's finished the transformation from childhood to what an adult body looks like." The physician who examined M. had checked a box on the sexual examination form indicating that "their exam is unremarkable, essentially what we can say with that information is that the person is healthy but we can't offer any insight as to whether the allegations are true or not . . . ." He testified that a colposcopic examination of her genital area did not show any new injuries such as bruising or scraping. As to "any anatomic evidence of old injury" the exam was inconclusive. They scheduled M. to return for a follow-up examination but she did not appear and although the hospital made "multiple phone calls to the foster mother to have them come back and see us . . . they did not do that."

Dr. Crawford testified that even if a girl were to begin having sexual intercourse, it would not necessarily cause damage to the hymen. "[C]ertainly sexual contact can injure the hymen and I've seen lots of cases where that's true. And I've seen lots of cases where, you know, sexual contact has been identified and there's no . . . evidence of injury . . . ." He testified that the photographs of M.'s vagina revealed no acute trauma to her hymen, and that he could not answer whether there had been "a previous or an old healed injury to the hymen" with any certainty. "There are two pictures that raise for me a question that there might have been, but because of the way the photos are taken, I can't see the margin well enough to offer an opinion, so I'm not saying that I'm offering an opinion that it's an abnormal finding, but it was for that reason that we wanted—one of the reasons that we wanted this young lady to come back to see us in our clinic." He testified that he had seen adolescent girls who had been forced to work as prostitutes who nevertheless had "anatomically unremarkable hymens." Defense evidence

Defendant testified that M. was the product of an approximately two-month long relationship with T.E. M. lived with her mother for about eight years after she was born. Defendant began proceedings to obtain custody of M. because he learned that she was failing the second grade. "I was devastated by that because she's . . . smart. She's very witty, she's very smart. And subsequent to that, I also found out that she was hit by a car late at night and that it was in front of her mom's window and they couldn't wake her up . . . ." Defendant obtained custody but made efforts to ensure that M. could see her mother by taking M. to her maternal grandparents' house. "And they would always call me two to three hours into the visit and say just come pick her up. [Her mother is] not showing up."

After defendant obtained custody, T.E. stayed in contact with M. by phone for a few months, but then did not contact her again after September 3, 2002, until defendant reinitiated contact in May 2007. The last defendant heard about T.E. prior to May 2007 was that she had lost her apartment and her parents did not know where she was. In May 2007, however, M.'s maternal grandmother told defendant that T.E. was "doing good. That she's in a rehab place . . . . And that she had a job at Safeway. So I was excited to hear that. I let [M.] know that the grandparents told me that and she asked to see her mother. And I always promised her keep your grades up and stuff, and if her mom comes around, we'd do whatever it takes so she could see her mom." Defendant contacted T.E. and took M. to see her that weekend for Mother's Day.

In March 2004, defendant bought a townhome and moved there with M. She had her own bedroom and they shared a bathroom. In May 2007, defendant's brother Justin moved in with them.

In June 2007, defendant took a buyout offer from his employer, which initially provided him with "a good chunk of money." Until that time, he had made "a decent income" and was able to take M. to Disneyland, Universal Studios, Hawaii, camping, and to the movies often. After the buyout, defendant was not able to find new employment and their lifestyle changed "[d]ramatically." Approximately two and a half months after the buyout, "I realized things were getting pretty grim with money and with the job." T.E. had offered to pay $100 per month in child support, but rarely did.

Around the same time that defendant's financial situation became strained, he learned that whenever M. visited her mother they were going to Great America or Marine World and that T.E. was buying M. presents. He also learned that T.E. had purchased a car, although she told him that her boyfriend had rented it. Defendant was borrowing money from his parents to buy clothing for M., and was a month in arrears on his mortgage. Defendant decided to seek a court order for child support.

In July 2008, about two weeks before he was arrested, defendant spoke to M. about seeking child support. "I tried to explain as nice as I could, but I don't know if you really can, that her mother hasn't been paying me and she's been spending a lot of money on you, so I'm going to let the courts decide, and until that's done, you're not going to be going on visits with your mother." Under the court orders then in effect, T.E. had no visitation rights and defendant told T.E. that he would not allow visitation until a child support order was entered. He reasoned that T.E. "was so irresponsible before I got custody of her and I was hoping that she changed. And obviously with her lying about purchasing a vehicle and spending money on my daughter instead of paying anything in child support, I could just see that she was being irresponsible again."

Defendant testified that on July 27, 2008, while he was at the mall with M., a woman in a suit approached them and said, "Hey, your daughter's beautiful and I'd like to give you these audition papers, and it was a flyer stating where there was auditions for kids that went on to become TV stars, musicians, and other stuff like that." Defendant testified that M. was excited, but that he told her he could not afford for her to participate in the audition because it required a current photo shoot. M. also would have needed new clothes and a haircut, which defendant could not afford. He told M., " 'Well, maybe call your mother. Maybe she might have some money for you, but I don't have any money for this. I'm sorry.' " M. was disappointed and upset.

Shortly after this incident on the same afternoon, the two went to Costco. While there, M. received a phone call from her maternal grandmother. Defendant noticed that M. was crying. He asked what was wrong and she told him that her maternal grandmother had suffered a heart attack. However, when defendant pressed her for details, M. said that she had not had a heart attack, but that her blood pressure was low and that she was being kept in the hospital for observation. Defendant believed that the grandmother "exaggerates a lot of things and she's always making my daughter feel guilty about something. I think she's an attention-getter." Defendant was upset that the grandmother had called and made M. feel badly. When the phone call was finished, defendant told M. to give him the telephone, "that we were going to have a day together, and she gave me her phone."

They left Costco, rented several episodes of The Sopranos and went home. M. napped while defendant watched the show. Defendant then began to prepare dinner and then he and M. went out to buy ice. When they returned home, they ate dinner and defendant made himself a margarita using a strawberry mix. Defendant asked M. if she wanted to taste it. She took a small sip, told him that it tasted "gross." When he observed that the mix was expired, defendant threw the drinks away. After dinner, the two watched a movie. M. sat on the mattress. Defendant fell asleep before the movie was over. Around 10:00 p.m. he told M. he was going to bed and that she could stay up until 11:00. He woke around nine the following morning and went downstairs. "As soon as I went down my stairs, [the] SWAT ran up on me pointing assault rifles at me and telling me to freeze

Defendant denied all of the abuse testified to by M. He denied ever having had any sexual contact with M. or having videotaped M. He admitted that he had a video called Girls Gone Wild, but testified that he never played it or "anything of a sexual nature in front of my daughter." He admitted that he owned a dildo, which he and Janelle used and which he kept hidden, but testified that he never showed it to M. or used it with her.

Defendant testified that he had slapped M. only one time, "[s]everal months before my arrest. I confronted her about a lie that she was . . . continuing to tell me right in front of me and I lost my cool and I slapped her." He stated that he never touched her buttocks, and never touched her or had her touch him in a sexual manner.

Defendant testified that he had trouble getting M. to perform her chores and this sometimes led to arguments. He also testified that he and M. would use one towel between them that they both used.

M.'s cousin Kaitlin testified that she and M. are only three weeks apart in age, and were very close. When M. was living with defendant, Kaitlin testified that M. "was always happy. . . . she was just a . . . happy little girl that was always with me and we had fun together and . . . there was nothing like she was sad about anything." M. complained to Kaitlin that her father was strict, but otherwise did not complain about him. The last time M. visited Kaitlin was the week before defendant was arrested. M. told Kaitlin that "she hated [defendant] because she wasn't able to see her mom until she paid child support." During that visit, M. received a phone call from her mother. M. asked her mother why she was not at work and "asked her how she was going to support them if she wasn't going to work." M. told Kaitlin that "she [M.] controls her mom and she's the parent."

Kaitlin testified that when M. was eight or nine years old, M. told Kaitlin she "controls her mom and that she's the parent." Kaitlin and M. were close and shared secrets with each other, but M. never told Kaitlin that her father was sexually abusing her.

Janelle Charles, who dated defendant from 2002 until late 2004, testified that she saw defendant every weekend during that time period. She stated that defendant treated M. "very well. He was a very good father. Very normal relationship with his daughter and she was his first priority. Everything was for her. He worked for her. He paid the bills for her. I mean, it was just a very normal relationship." She described his parenting style as "Normal. I mean . . . she was disciplined if she did something wrong or if she lied. Given chores to do around the house. . . . homework when you get home from school." "He wanted her to do well in life so . . . he was strict in the sense of . . . she had rules for homework. You know, you have to do homework every day after school. You can't play outside until you do your homework." Charles testified that defendant was concerned lest M. "follow in the path of her mother."

M. never expressed any dissatisfaction to Charles about the way her father treated her. However, Charles testified that "[M.] lied a lot. . . . [A]t the time it was a lot of little lies about, you know, 'I did my homework,' when she really didn't or . . . she would come to me and say, 'Oh, my dad said I could have some cookies,' when, in fact, he didn't." Charles was very close to defendant and testified that he had proposed marriage to her. However, she did not accept his proposal "[b]ecause of [M.]" She told defendant that this was the reason she would not marry him. She testified that defendant is "[a] very caring, giving person, very gentle. He would do anything for anyone when asked of him. He would give his last dollar in his pocket if someone needed it. . . . [H]e was just a very good friend and just a very good person."

Meghan Stanbrough, who had known defendant well for approximately three and a half years at the time of trial, testified that prior to defendant's arrest he and M. would come over to her home "[a] couple times a week at least." Sometimes during these visits, defendant and Stanbrough's boyfriend would be engaged in an activity together and Stanbrough and M. would do something else together. "[S]ometimes they would go see a movie that I wouldn't want to see so I'd ask [M.] to go see like a chick flick or a movie that we'd want to see rather than an action movie. Or I took her shopping a lot with me. . . . So there was a lot of times that it was the two of us." M. called Stanbrough "auntie," and Stanbrough believed they were very close. The only complaint she ever heard M. make concerning defendant was shortly after he bought a new car, and M. complained that defendant was "always" interested in the car. She testified that defendant "was a good parent. He was a very strict father. You know, didn't allow her to have a Facebook or a MySpace because she was too young to . . . . [He] didn't want her to have any boyfriends or anything. I mean, she was allowed to go out and do things with her friends like under certain circumstances. She had her chores and her stuff that she needed to do. [He] was a good, normal father, I thought."

M. confided in Stanbrough about boys she liked at school and other personal matters. Stanbrough was aware of occasions when M. lied about her grades. She described defendant as "a very good person. He was always honest. He was extremely caring. I mean, he was just a great guy. He was like . . . a brother. . . ."

M.W., defendant's sister-in-law, testified that she was married to defendant's brother and had known defendant for 20 years, and saw him "[f]ifty to a hundred times a year." She likewise saw M. "[a]ll the time." M.W. and M. were close. "[S]he would tell me everything, it seemed." M. told M.W. that she was unhappy about the rules defendant imposed on her concerning makeup and clothing. She testified that defendant was "[a] good parent. He was always there. He didn't allow her to wear clothes that were revealing. She wasn't allowed to wear makeup and do things that weren't appropriate for her age." M. complained to M.W. about the fact that she was not allowed to use the internet or have a MySpace account. M. sometimes talked about her mother. "She would just say that she missed her and that . . . for a while there they didn't know where . . . she was so she would always tell me that."

Lisa Vargas, whose husband Tony is a good friend of defendant, testified. M. frequently came to their house to swim in the summer. Vargas testified that defendant was an "honest, strict father, but I thought he was a very good parent. I thought he was doing an awesome job for being a single parent." Four or five times a month, M. would be left with Vargas while defendant and Tony did things together. Vargas testified that she had a "[v]ery good" relationship with M. and "treated her like my niece." M. would confide in Vargas. She talked to Vargas about other kids at school and about the fact that her mother was not in her life. Vargas testified that after defendant accepted a buyout from his workplace, he was under some financial strain because he was unemployed for more than a year. Vargas brought a video camera with her to court which she testified belonged to defendant. She testified that it had been in her possession since April of 2007 when she went to Hawaii and borrowed it.

Defendant's mother, Joan Wareham, testified that when M. was approximately six years old, M. and defendant moved in with Joan and her husband. Defendant and M. shared a large bedroom with two beds. After approximately two years, defendant and M. moved into their own apartment in the same complex. Joan testified that defendant and M. "were like father and daughter. Very much so. I mean, he was extremely important as far as her education, her homework. About as normal for a relationship as a father and daughter can get." As for her relationship with M., Joan testified that "One of the best things in my life that ever happened was having grandchildren, and so having a granddaughter in my home was great. We were very close. . . . We got to obviously get to know each other a lot better because we were in the same household, and we love having her around." Joan never had any indication that M. had problems with defendant. Joan and her husband moved to South Dakota in October 2005, but Joan continued to talk to M. on the phone daily.

Defendant was charged by information with one count of aggravated sexual assault of a child by oral copulation (Pen. Code, § 269, subd. (a)(4))¹ on a minor under the age of 14 and more than 10 years younger than defendant; two counts of aggravated sexual assault of a child by rape (§ 269, subd. (a)(1)); one count of aggravated sexual assault of a child by sodomy (§ 269, subd. (a)(3)); and one count of continuous sexual abuse (§ 288.5, subd. (a)). All of the counts alleged that the victim was under the age of 14 years and all but the count of continuous sexual abuse alleged that she was more than 10 years younger than defendant.

1 Further statutory references are to the Penal Code unless otherwise specified.

The jury convicted defendant on all the counts. The trial court sentenced defendant to three consecutive terms of 15 years to life for three of the counts of aggravated sexual assault of a child, one concurrent term of 15 years to life for the fourth count of aggravated sexual assault, and a determinate consecutive 12 year term for the continuous sexual assault. Defendant timely appealed.

DISCUSSION

Lesser included offenses

Defendant argues that the trial court erred in failing to instruct sua sponte on certain nonforcible sexual offenses, which he contends are lesser included offenses of the forcible crimes with which he was charged. The parties disagree as to whether the nonforcible crimes were necessarily included and as to whether there was evidence to support instruction on the lesser crimes. Were lesser offenses necessarily included in the charged offenses?

Defendant was charged with four counts of aggravated sexual assault of a child under section 269—one count by oral copulation, two by rape, and one by sodomy. Section 269 provides, as relevant here: "(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child: [¶] (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. [¶] . . . [¶] (3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. [¶] (4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a." (Italics added.)

Defendant argues that non-forcible oral copulation of a "person who is under 14 years of age and more than 10 years younger than he or she" (§ 288a, subd. (c)(1)) is a necessarily lesser included offense of the first count in the information.² Likewise, he argues that non-forcible sodomy on "another person who is under 14 years of age and more than 10 years younger" than the defendant (§ 286, subd. (c)(1)) is a necessarily included offense of the fourth count, and that unlawful sexual intercourse with a minor (§ 261.5) is a necessarily included lesser offense of the aggravated sexual assault by rape charged in the second and third counts of the information.

2 Section 288a, subdivision (c)(1) provides, "Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years."

"Like most jurisdictions, California recognizes that an offense expressly alleged in an accusatory pleading may necessarily include one or more lesser offenses. The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)

As to the first and fourth counts (oral copulation and sodomy), defendant relies on the language of the information, which alleged an age difference of more than 10 years between defendant and M., although the age difference specified by section 269 was changed to seven years in 2006, well before the information in this case was filed. (Stats. 2006, ch. 337 (Sen. Bill 1128).) The Attorney General responds that those sections are not lesser included offenses because section 269 requires only a seven year age difference and therefore one could violate section 269 without violating the non-forcible oral copulation and sodomy sections (if the perpetrator was more than seven but less than 10 years older than the victim). The Attorney General argues that the age difference plead in the information was "erroneous" and that defendant "should not be permitted to rely on the erroneous language in the information. Appellant fails to acknowledge that sometime during trial the parties must have recognized the error in the information because the instructions given the jury, and the verdict forms, correctly stated that appellant was being charged with committing oral copulation, rape, and sodomy by force, violence, duress, menace and fear of immediate and unlawful bodily injury upon [M.], 'who was under the age of 14 years,' while appellant 'was more than 7 years older than she was.' " (Italics omitted.)

However, the accusatory pleading test for lesser included offenses is so called with reason: the measure is the accusatory pleading. "When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements of any lesser necessarily included offense. Hence, the stated charge notifies the defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information. [Citations.] The statutory law of California explicitly provides that the defendant may be found guilty 'of any offense, the commission of which is necessarily included in that with which he is charged.' (§ 1159, italics added.)" (People v. Birks, supra, 19 Cal.4th at p. 118.)³ Under this test, non-forcible oral copulation and non-forcible sodomy were necessarily included lesser offenses of the first and fourth counts and if there was substantial evidence that defendant committed only the lesser, the jury should have been so instructed.

3 See also People v. v. Marshall (1957) 48 Cal.2d 394, 407 ["a pleading which forthrightly alleges not only the statutory language of the greatest offense charged but also known details as to the manner of its commission is more helpful to a defendant, particularly if he is innocent, and is more fair and, hence, more worthy of the proper stature of the state's attorney than a pleading which alleges the general statutory language and no more."]

As to the counts of aggravated assault based on rape (counts three and four), defendant argues that the jury should have been instructed on unlawful sexual intercourse (§ 261.5) as a lesser included offense. Subdivision (a) of that section provides that "Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor." Section 261.5, subdivision (c) provides that "Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony . . . ." The information alleged that M. was under 14 years of age, and defendant was charged as an adult and therefore necessarily was over the age of 18. Under the facts as alleged, defendant could not have committed the rape without also violating section 261.5, subdivision (c). Therefore, under the accusatory pleading test, unlawful sexual intercourse was a lesser included offense to the counts of aggravated sexual assault of a child by rape. Was there substantial evidence such that sua sponte instruction on the lesser offenses was required?

"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence 'raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.' " (People v. Lopez (1998) 19 Cal.4th 282, 287-288.)

"California decisions have held for decades that even absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks, supra, 19 Cal.4th at p. 118.) However, "[t]he trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses." (People v. Wickersham (1982) 32 Cal.3d 307, 325, disapproved on other grounds by People v. Barton (1995) 12 Cal.4th 186.) "The sua sponte duty to instruct, . . . in connection with a lesser offense . . . exists when there is substantial evidence to support the defendant's culpability of the necessarily included crime. [Citations.] That duty exists even though the evidence supporting the lesser offense is inconsistent with the accused's defense." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016-1017 (Sinclair).) Nevertheless, "[i]t is well settled that 'the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense.' [Citation.] Where a defendant 'denies any complicity in the crime charged, and thus lays no foundation for any verdict intermediate between "not guilty" and "guilty as charged" . . . [¶] . . . it is error to so instruct [on the lesser offense] because to do so would violate the fundamental rule that instructions must be pertinent to the evidence in the case at bar.' " (People v. Trimble (1993) 16 Cal.App.4th 1255, 1260.) In Sinclair the court held that there was no error where the jurors had not been instructed on voluntary manslaughter on a heat of passion theory where the defendant denied entirely that he shot the victim. "When defendant denied he shot the decedent, none of the alleged evidence of heat of passion and imperfect self-defense was of the type 'that a reasonable jury could find persuasive.' [Citation.] Simply stated, the duty to instruct on inconsistent defenses does not extend to cases such as this where the sworn testimony of the accused completely obviates any basis for finding a lesser included offense." (Sinclair, supra, 64 Cal.App.4th at pp. 10211022.)

Defendant did not argue that there was nonforcible sexual contact with M. Rather, he denied touching M. in a sexual manner entirely. Even if defendant is correct that the lesser crimes were necessarily included in the greater charged crimes, the court was under no obligation to instruct the jury as to the lesser crimes since the evidence of sexual contact was exclusively M.'s testimony, and that testimony was that she resisted defendant and that the contact was forcible. Defendant points to the fact that the sexual assault examination of M. revealed no tearing or bruising, but lack of physical evidence that force was used does not undermine M.'s testimony that she told defendant to stop, or that he grabbed her and pulled her to him in order to rape her on July 27. The verdict reflects the jury's acceptance of M.'s testimony and disbelief in defendant's testimony. There was no substantial evidence to support a finding of the lesser crimes if the greater crimes were not also committed and therefore the trial court did not err by failing to offer instruction on those crimes. Instruction on_force

The jury was instructed that in order to find defendant guilty of the count of aggravated sexual assault on a child by oral copulation, it must find that "1) the defendant committed an act of oral copulation with someone else; 2) the other person did not consent to the act; and 3) the defendant accomplished this act by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone." The jury was also instructed that "An act is accomplished by . . . force . . . if a person uses physical force to overcome the other person's will. [¶] Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to. . . . Menace means a threat, statement, or act showing an intent to injure someone. An act is accomplished by fear if the person is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it." These same instructions were given regarding the aggravated sexual assault by rape counts. The court instructed as to the sodomy count that it must have been accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury, but the court did not repeat the definition of these terms separately as to that count.

Defendant argues that the court was required to instruct the jury that force other than that needed to accomplish the lewd act itself was required to find that he was guilty of violating section 269. He did not request such an instruction, but relying on People v. Cicero (1984) 157 Cal.App.3d 465, disapproved on other grounds by People v. Soto (2011) 51 Cal.4th 229, (Cicero), he argues that court was required to provide such an instruction sua sponte.

In Cicero, the court considered whether the force required to commit a forcible lewd act on a child under section 288, subdivision (b) was simply the force used to perform the act or whether some force was needed beyond that necessary to commit the lewd act. Section 288, subdivision (a) prohibits committing "any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." Subdivision (b)(1) of that statute prohibits the same acts accomplished "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." The Cicero court determined that some amount of force beyond the force necessary to accomplish the act was required to establish a violation of subdivision (b) because the two subdivision "on their face draw a distinction between those lewd acts that are committed by force and those that are not." (Cicero, supra, 157 Cal.App.3d at p. 473.) The court concluded that "[s]ubdivision (b) must therefore proscribe conduct significantly different from that proscribed by subdivision (a)." (Cicero, supra, 157 Cal.App.3d at pp. 473-474.)

Our Supreme Court recently reaffirmed the formulation of the court in Cicero, supra, 157 Cal.App.3d 465, 474, that "the harsher penal consequences of a conviction under section 288(b), as compared to section 288(a), require that the force used for a subdivision (b) conviction be 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' " (People v. Soto (2011) 51 Cal.4th 229, 242, overturning Cicero on other grounds.)

In People v. Griffin (2004) 33 Cal.4th 1015, 1026-1027 (Griffin), the Supreme Court addressed whether rape, as defined by section 261, requires force beyond that needed to accomplish the sexual act. Section 261, subdivision (a)(2) defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] (2)[w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." The court held that "force" as used in this statute does not have a special meaning, distinguishing rape from lewd acts on a child under section 288. "The Cicero court was clearly focusing on the distinctions between nonforcible lewd acts under section 288, subdivision (a), and forcible lewd acts proscribed by former subdivision (b), now (b)(1), of that section. The court reasoned that in order for the statutory scheme of section 288 to make sense, the Legislature must have intended that the 'force' required to commit a forcible lewd act under subdivision (b) be substantially different from or substantially greater than the physical force inherently necessary to commit a lewd act proscribed under subdivision (a). [¶] That same distinction does not arise in the context of the rape statute. The element of force in forcible rape does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288. When two adults engage in consensual sexual intercourse, whether with or without physical force greater than that normally required to accomplish an act of sexual intercourse, the forcible rape statute is not implicated. The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Griffin, supra, 33 Cal.4th at p. 1027.) The court concluded that no special instruction defining force is needed. (Id. at p. 1028.)

In People v. Guido (2005) 125 Cal.App.4th 566 (Guido), the court considered whether a special instruction on the meaning of force is needed where the crime charged is aggravated sexual assault of a child by rape and by forcible oral copulation under section 269, subdivisions (a)(1) and (4), one of the sections charged in the instant case. The Guido court concluded that the statute prohibiting forcible oral copulation is more like the statute prohibiting rape than like the lewd acts statute considered in Cicero. "These concepts [from Griffin]apply equally to the crime of forcible oral copulation. Consensual oral copulation, with or without physical force greater than that normally required to accomplish the act, is not unlawful except when accomplished under circumstances violative of section 288a. As with forcible rape, the gravamen of the crime of forcible oral copulation is a sexual act accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As with forcible rape, it is only when one participant in the act uses force to commit the act against the other person's will that an otherwise lawful act becomes unlawful." (Guido, supra, 125 Cal.App.4th at p. 576.)

Finally, in In re Asencio (2008) 166 Cal.App.4th 1195 (Asencio),the court considered whether force greater than that needed to accomplish sexual penetration is required in order to establish a violation of section 269, subdivision (a)(5), aggravated sexual assault of a child by sexual penetration. Section 289, subdivision (a)(1)(A) provides, "Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years."

The Asencio court reasoned: "Unlike the lewd acts law in Cicero but like the rape statute at issue in Griffin, the element of force in a forcible sexual penetration offense 'does not serve to differentiate between two forms of unlawful sexual contact as it does under section 288.' [Citation.] Just as consensual sexual intercourse between adults does not violate the law against rape, the law against forcible sexual penetration is not violated when adults engage in consensual sexual penetration, even if that penetration is accomplished by physical force greater than that normally required to accomplish an act of sexual penetration. [Citation.] The gravamen of the crime of forcible sexual penetration is a sexual penetration accomplished against the victim's will by means of force, violence, duress, menace, or the fear of immediate and unlawful bodily injury on the victim or another person, just as forcible rape under section 261, subdivision (a)(2) is sexual intercourse accomplished against the victim's will by force or other listed coercive means." (Asencio, supra, 166 Cal.App.4th at pp. 1204-1205.)

Thus, no specialized instruction on force was required for the counts of rape and oral copulation. The same reasoning applies with regard to aggravated sexual assault of a child by sodomy, the only offense with which defendant was charged that is described as "forcible" and which has not been the subject of an appellate opinion. The underlying act, if consensual and between adults, does not violate the law even if accomplished by force greater than that needed to accomplish the act. Therefore, no instruction defining the necessary degree of force was required. Moreover, even if greater force than that required to accomplish the sexual acts was required, M.'s testimony established that defendant used such force, and there was no contrary testimony regarding the circumstances surrounding the acts. ⁴ Instruction on prior inconsistent statements

4 To the extent that defendant argues M.'s testimony was insufficient to establish the force needed to support his conviction, the contention is rebutted by the very facts included in his own argument: "As to the unlawful intercourse counts, M. testified that after the act of oral copulation appellant pushed her onto the air mattress and . . . 'my legs were around him.' . . . [M.] testified that she protested, 'Please stop. No. Please stop.' . . . Appellant continued sexual intercourse after flipping [M.] onto her hands and knees. . . . [M.] testified that she 'kept trying to resist,' and added that as he put his hand to her neck before he flipped her over. . . . [¶] As to the May, 2008 sodomy count, [M.] testified that she walked into appellant's room and he started pulling his pants down; then appellant told [M.] to orally copulate him. . . . Appellant pushed her onto the bed, pulled her pants down, and accomplished [the] act of sodomy. . . . [M.] admitted that appellant did not hit her . . . ." (Italics added.) Defendant implies that because [M.] put her legs around defendant and because she testified that he did not hit her, the force was insufficient. "A number of cases have held that if the defendant grabs or holds a victim who is trying to pull away, that is the use of physical force above and beyond that needed to accomplish the act." (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)

After the jury retired for deliberations, it asked for further instruction on the meaning of "inconsistent." The trial court repeated standard instructions on witness credibility and inconsistent testimony, then commented briefly on those instructions. Defendant argues that the court's comments violated his constitutional right to a fair trial.

Before deliberations, the jury was instructed on credibility as follows: "You alone must judge the credibility or believability of witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. . . . You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors you may consider are: . . . [¶] How well was the witness able to remember and describe what happened? . . . [¶] . . . [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony here in court? . . . [¶] . . . [¶] Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember."

After five days of deliberations, the jury reported that it was deadlocked on all counts except the first (aggravated sexual assault of a child by oral copulation). The court inquired whether there was "any reasonable probability that there's something that could occur that might make it possible for you to reach a verdict?" The foreperson replied, "I do not believe so. I believe that we are at a standstill based on the believability of certain testimony." The court offered to have testimony read back, and the foreperson replied that, "As you know, we had the court reporter read back certain testimony earlier today . . . with the hopes that it would . . . change the preliminary vote. It did not." The foreperson did indicate, however, that there had been some movement in ballots since the preliminary vote. After the foreperson left the room, the jury sent another note to the court asking for "the legal definition of 'inconsistent.' "

After discussion with counsel, the trial court gave the following supplemental instructions: "In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors you may consider are . . . There are many bulleted items. One of them reads: Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] So essentially you're talking about a statement made outside of court before the trial as compared to what was testified to in court during trial. [¶] If you look to the two paragraphs after the bullets, they state: Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event, yet see or hear it differently. [¶] If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject. [¶] That paragraph says if they don't remember today, they said something different before, those would be inconsistent. Then if you consider the next full instruction on page 8, which talks about prior statements as evidence, that says: You have heard evidence of statements that witnesses made before trial. If you decide the witness made those statements, you may use those statements in two ways: One, to evaluate whether the witness's testimony in court is believable; and, two, as evidence that the information in these earlier statements is true.

"It's risky for judges to comment on what these instructions mean. Essentially you have to decide if a person says they don't remember today and they said something different in the past, were they telling the truth in the past when they made that statement . . . ? They could be telling the truth and they don't remember it today. They could be telling the truth in the past. It's possible. You have to decide if they are telling the truth on either or both of those occasions. [¶] If you decide they are telling the truth here and they are telling the truth in the past, that may lead you to some conclusion. You can rely on—if you think they are telling the truth in the past, you can use that for the truth of the matter. You can use it to tell if they are telling the truth today. In either of those ways. [¶] It's kind of a—sometimes we remember things people tell us in the past and they tell us something different now and we're like, well, we think they're not telling the truth. This instruction says sometimes there's a good reason for them not to be able to remember what they said in the past when they come to court. That's all." (Italics added.)

After the jury returned to its deliberations, defense counsel objected that, "in your commenting afterward you were saying you could use it to decide the person was telling the truth now. You could use it to decide the person was telling the truth back then. And I would ask the court to bring them out and add to them you can also use it to decide that the person was not telling the truth at a particular time, because all of your comments were in terms of using this to find that the person was telling the truth, and I think that was biased towards the prosecution, and if they are brought out right now it could be remedied and I would ask the court to do that." The prosecutor disagreed with defendant counsel's characterization of the comment. The court stated, "I just reviewed the reporter's notes of what I said and it appears that my statement was you can use it to determine whether or not they were telling the truth. I don't think that's tending to favor truth or not if you use it in that alternative, tell the truth or not. [¶] So I was cautious in what I said and I do not believe that I have favored either side . . . and I won't bring the jury back for that reason."

"[A]ppellate courts . . . must evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court's remarks deprived the accused of his right to trial by jury." (People v. Rodriguez (1986) 42 Cal.3d 730, 770.) When a jury announces that it is deadlocked, "Article VI, section 10, of the California Constitution permits the court to 'make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.' (Italics added.) The purpose of this provision is to allow the court 'to utilize its experience and training in analyzing evidence to assist the jury in reaching a just verdict.' " (People v. Proctor (1992) 4 Cal.4th 499, 541-542.) Our Supreme Court has observed that "the decisions admonish that judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power." (People v. Rodriguez, supra, 42 Cal.3d 730, 766.)

However, " 'In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.' [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.] The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.] Further, in examining the entire charge we assume that jurors are ' " ' "intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " ' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.)

The jury here was properly instructed on its role in evaluating witness testimony. Although the court's final comments suggested that inconsistent testimony should be evaluated to determine whether the in-court statements were truthful or whether the earlier statements were truthful, and did not explicitly state that the jury could wholly disbelieve a witness whose testimony had been inconsistent, the comments were consistent with the basic instruction that credibility is a matter for the jury to decide. The initial instructions on the subject were fair and accurate. There is no reasonable likelihood that the jury understood the court's comments to imply that testimony could not be disbelieved because of a prior inconsistent statement, or in any way that violated defendant's right to a fair trial.⁵ SART report

5 Having concluded that the trial court did not prejudicially err in commenting on the use of inconsistent statements, we likewise reject defendant's related contention that the trial court was required sua sponte to give CALCRIM No. 3530, which instructs: "Do not take anything I said or did during the trial as an indication of what I think about the evidence, the witnesses, or what your verdict should be. [¶] Now, I will comment on the evidence only to help you decide the issues in this case. However, it is not my role to tell you what your verdict should be. You are the sole judges of the evidence and believability of witnesses. It is up to you and you alone to decide the issues in this case. You may disregard any or all of my comments about the evidence or give them whatever weight you believe is appropriate."

Defendant called Shelley Hamilton, the manager for the Center for Child Protection at Children's Hospital in Oakland, to testify regarding her interview of M. on July 28, 2008. Through Hamilton, defendant introduced a three-page summary of her interview with M. Referring to that summary, Hamilton testified that in response to the question whether defendant had ever used an object for anal penetration, M. answered, "no." The report of the interview that Hamilton wrote noted that defendant "would videotape assault and sometimes make her watch them," which suggested to Hamilton that defendant had videotaped more than one assault. M. also indicated to Hamilton that defendant had taken photographs of her during the abuse. M. also indicated that defendant had given her alcohol on more than one occasion.

Defendant introduced the summary in order to highlight the inconsistencies between what M. told Hamilton and her trial testimony; specifically, that Hamilton's report suggested that M. told her that defendant had videotaped his assaults on M. on multiple occasions rather than just once, as M. testified at trial, and that M. told Hamilton that defendant had never inserted an "object" in her anus, whereas at trial M. testified that defendant inserted a dildo into her anus.

Over defendant's objection,⁶ on cross-examination the prosecutor asked Hamilton about the interview on which she had based the summary. He elicited testimony that M. had told Hamilton about "a chronic and extensive history of sexual abuse beginning at age six or seven," that defendant had "sexually abused her well beyond 20 times," and that defendant had threatened her with force and threatened that she would be sent to an orphanage if she reported the abuse.

6 Before the cross examination, and out of the presence of the jury, defense counsel stated that the prosecutor "had given an indication that he was going to go into all of the other questions that were asked in terms of history. . . . I think that that is inadmissible hearsay and I would object to . . . him being allowed to go into all of those things."

Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." The trial court has broad discretion in ruling on admission of evidence under this section. (People v. Pride (1992) 3 Cal.4th 195, 235.)

" 'In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. "In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence . . . .' " (People v. Zapien (1993) 4 Cal.4th 929, 959.) Having introduced the summary of the interview, defendant cannot complain that the prosecutor explored the substance of the interview that led to the summary. The jury is entitled to know the context from which the summary was made. (People v. Sanders (1995) 11 Cal.4th 475, 518-519 [where defense counsel elicited portions of investigative interview with witness, prosecution not foreclosed from inquiring into context of statements on redirect examination of witness and cross-examination of investigator].) The trial court did not err in allowing the prosecutor to cross examine Hamilton regarding the interview on which her report was based. Testimony on Child Sexual Abuse Accommodation Syndrome

Defendant argues that the trial court erred in admitting expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS).

Miriam Wolf testified as an expert on CSAAS. She had no information about this case and had never met M. She told the jury that her role was "to educate . . . the jury about some dynamics that are commonly seen and some reasons for that that they can then apply to the facts that they hear about this particular case." "[T]here are different beliefs that people have about the way that an individual—in this case a child—might respond if there were a true allegation of sexual abuse and that some of the ways that children respond are not what we would expect." She testified that there are five behaviors that have been observed in children who have been sexually abused: "secrecy; helplessness; entrapment and accommodation; delayed, conflicted or unconvincing disclosure; and retraction."

Because child sexual abuse occurs "in secret," she testified, the abuser may give the child a message that it must be kept secret. The message "can be very gentle. [It] can be, you know, 'Don't tell. This is our special secret.' . . . to more menacing, 'This is the kind of thing that might happen if you tell.' " She agreed that a statement such as " 'If you tell anybody, you're going to be sent to an orphanage,' " is "an example of something that is [an] . . . overtly threatening kind of a menacing message." Another strategy used by abusers to keep the abuse secret is "gift giving and making the relationship special. For many children, particularly in the early stages of a relationship, a sexual relationship with an adult, it's not all bad. It can be sometimes a very positive time spent together . . . that is rewarded in certain ways by the adult . . . ." She was asked if the abuser ever uses "a combo of that? Like . . . carrot and the stick. There's rewards and there's threats—" Defendant objected and was overruled. Wolf continued, "I've seen many cases that include both examples. Both a threat and a gift giving or special relationship dynamic."

Wolf testified that, regarding the element of helplessness, "child sexual abuse is a crime that involves a child and an older person. Usually a person that's in some kind of a position of power, or by virtue of the relationship, that it's a family member, it's a trusted person, and that, by definition, because somebody is older and in a position of power, the child is younger, helpless—more helpless and less able to really understand the consequences of this relationship. . . . [¶] . . . [T]hey're both physically smaller and more helpless and also psychologically more helpless." She testified that this dynamic would occur if the abuser were the child's biological father. "[I]f a child were to confront the perpetrator and say, 'I don't like this. I want this to stop,' and they were ignored and the abuse continued, that could contribute again to the child's feeling, 'I don't have anywhere to go with this. I can't say no. I'm not listened to . . . ."

Wolf testified that "entrapment and accommodation refers to following from the secrecy component and then the helplessness that the child feels . . . essentially trapped in this relationship. And for many children the best option, since they don't have anywhere to go with this, they are trapped in it, is to try and figure out how to survive in spite of the abuse that's happening. . . . . . Accommodation means to get used to or to live with." The prosecutor asked if it was "unusual for a child who is being molested to exhibit no emotional signs of distress in front of her family?" Wolf replied, "It's not unusual at all . . . . [T]he majority of children actually don't show outside distressing symptoms. Psychological kinds of symptoms." She also testified that it is "not at all" unusual for a child who is being molested to have a good relationship with the perpetrator. "For a lot of children, what they want is for the moles[ation] to stop. They don't necessarily want the relationship to go away. And that makes sense to us when we think about the fact that most people who do molest children are people who are known to the child and trusted by the child . . . . They are much more concerned about losing that person in their life overall than they are about the sexual abuse."

Wolf testified that often "there [are] long periods of waiting between abuse and when children would come out and tell. Because the vast majority of child sexual abuse is a secret, often when it does get disclosed it's in response to some kind of precipitating event or factor, and the time of disclosure compared to when the sexual abuse started is very big gaps: weeks, months, in many cases years." The delay is "explained by the earlier three things we talked about. That those threats are much more significant in the child's mind. Remember, this is a child trying to do the best that they can and generally coping on their own. They don't necessarily have the people to tell, and so there are— there are times when there's some trigger event that causes them to come forward, that may change that thinking for the child."

Wolf testified that children who are "molested over a period of time, multiple events, particularly if somebody has ongoing, recurring access to a child . . . one thing that has been observed is that the memory becomes like one big lump. It gets harder to discern between individual events unless they are tied to something like it happened at a birthday party or at a Christmas celebration. The child remembers the core events about the sexual abuse but can't necessarily distinguish between what happened on February 13th and what happened on October 15th."

Finally, Wolf testified concerning retraction that "whatever a child says about child sexual abuse, she or he is likely to take it back [because] the child wondered about or feared from the threats, from the secrecy . . . . [F]or some of them . . . the best way of managing what happens, all the fallout, mom does cry, stepgrandpa does go to jail, everybody's mad at the child, etcetera, etcetera, the easiest way to manage that if you are a child is to say, 'I take it back. It didn't really happen.' . . . [¶] [I]t isn't the hundred percent . . . but it does occur in some substantial proportion of kids."

She explained that these five elements are not "a diagnosis. It isn't something where somebody has all these things and there are check boxes to check off. They are simply explanations which may or may not be present in a particular child or in a particular child's report. What it does do is help explain some of those things that just look unbelievable to us from our adult framework, our adult frame of mind, because we tend to think if something bad were happening, I'd just go out and tell. I'd make it stop."

Opinion testimony by an expert witness is admissible if it is "[R]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a)). "[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.)

"Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [¶] Identifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)

Defendant argues that Wolf's testimony was improperly admitted because "there were no myths or misconceptions that needed clarification by such testimony." However, not only did M. delay by years reporting the molestation, but there were numerous inconsistencies in her accounts of the incidents over the years, and friends and family members testified that she had a close and good relationship with her father and that there was nothing visibly wrong with M. during the years in which she reported the molestation was occurring. Therefore, Wolf's testimony was properly admitted to explain M.'s behavior and to bolster her credibility. Conclusion

Although there was no legal error in the proceedings below, the conviction rests solely on the unsupported testimony of the victim, who the evidence indicates was anxious to escape from her father's discipline and live instead with her mother. Despite M.'s testimony of horrific, extreme, and ongoing sexual abuse over a period of years, including in the hours shortly before she reported to the police and was physically examined, there is a near total lack of physical evidence to support her testimony. The jury may well have had reservations over the sufficiency of the evidence, as reflected by its initial deadlock on all counts except the count based on oral copulation, for which the absence of tangible evidence is less surprising. However, the jury, which had the opportunity to observe the witnesses and weigh the properly admitted evidence, and which was properly instructed on the law, ultimately found M.'s testimony credible. The defendant made no motion for a new trial, which would have permitted the trial judge to make an independent evaluation of the weight and sufficiency of the evidence. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 102, pp. 134135.) We, however, are bound to accept the jury's finding because M.'s testimony does provide substantial evidence supporting the verdict. (People v. Ozene (1972) 27 Cal.App.3d 905, 910.)

DISPOSITION

The judgment is affirmed.

Pollak, Acting P.J. We concur: Siggins, J. Jenkins, J.