Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F3429.
BLEASE, Acting P. J.
Miguel Rodriguez appeals from the judgment of conviction after a jury found him guilty as charged of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2); Cts. 1, 2), one count of forcible sodomy (§ 286, subd. (c); Ct. 3), and one count of forcible oral copulation upon the victim, D. (§ 288a, subd. (c)(2); Ct. 4.) The trial court sentenced him to an aggregate prison term of 24 years, comprised of four mid-term sentences ordered to run fully consecutive under the more stringent provisions of section 667.6, subdivision (d).
All further section references are to the Penal Code unless otherwise specified.
On appeal, he raises several challenges including the claim that the trial court had a sua sponte duty to instruct on the defense of mistake of fact. Finding no legal error, we shall affirm the judgment.
Defendant contends the trial court erred by failing to exclude expert witness testimony on Child Sexual Abuse Accommodation syndrome, the defense was ineffective for eliciting damaging testimony from the expert, and the court erred by imposing full term consecutive sentences in violation of defendant’s Sixth Amendment right to a jury trial.
FACTUAL BACKGROUND
D., the victim in this case, was born in February 1988 and lived with her family in Mexico. She first met defendant when she was about seven years old and he began visiting her family every two or three years. She called him uncle although he is her mother’s cousin.
D. wanted to go to the United States to learn English and defendant told her he would bring her here and help her. When she was 14 years old and he was 29 years old, he helped her to immigrate illegally and after she crossed the United States-Mexican border, he drove her to McArthur in Shasta County where they lived with relatives.
A month later, D. and defendant moved to a one-bedroom trailer in McArthur located on property owned by her aunt and uncle, D.M. and O.O. D. slept in the bedroom and defendant slept on the couch. Her aunt and uncle lived in a house about one-half mile from the trailer. Defendant occasionally told D. she was pretty, which made her uncomfortable. One night about two weeks after they moved into the trailer and shortly after D. turned 15 (February 2003), defendant entered her bedroom and woke her up. He was standing next to her bed and was naked. She tried to stand up and leave the room but he prevented her from getting out of bed. He climbed into bed with her and told her not to tell anybody. He grabbed her hands and removed her panties. She told him she did not want to have sexual intercourse but he ignored her pleas, and while she attempted to get away, he was too strong and was able to engage in vaginal intercourse with her. He ordered her not to tell anyone and because she was afraid of him and she had nowhere to go, she did not tell anyone what he had done to her.
After this first incident, defendant engaged in sexual contact with D. every day that he was home, although there were some days he was not home because he worked as a long haul truck driver and during those periods D. spent the night at D.M.’s house. She did not tell D.M. about the sexual abuse because defendant told her not to tell anyone and she did not feel safe disclosing his behavior.
About two months after the first incident, defendant began forcing D. to orally copulate him. He grabbed her hair, pulled her head down to his penis, and moved her head back and forth by pulling on her hair. She told him she did not want to do it but he forced her and told her that if she told anyone, he would do something to her family or her sisters and she believed him. Defendant also forced D.’s legs apart and placed his mouth on her vagina. Although she did not want him to do this, she was unable to stop him because he was stronger than she.
When D. was menstruating, and usually at night in the bedroom, defendant put his penis in her anus. This hurt and she did not want him to do it. He had anal sex with her more than once but it was never on the same day that he engaged in vaginal intercourse.
Defendant threatened to hit D. if she did not do what he wanted and told her she had to comply with his sexual demands to repay him for bringing her to the United States. His treatment of her caused her to feel worthless and sad and after a while, she stopped trying to physically resist him, believing her efforts were futile. She was not comfortable telling his relatives about the sexual abuse. She believed some of them knew about it and because they were closer to defendant than to her, she believed they would not help her. She did not tell her own family about the abuse because she was ashamed and felt they would not help her either and she feared he would harm them.
On one occasion, D.M. and O.O. approached the trailer and saw defendant and D. through the window. Defendant was sitting on the couch naked. D. was clothed and crying. O.O. knocked on the trailer door and defendant ran into the bathroom. As D. opened the door, defendant came out of the bathroom wrapped in a towel and said he had been in the shower. D.M. subsequently spoke to D. about this incident and D. told her nothing happened but that defendant “was insistent upon her.”
On another occasion, O.O. saw defendant get on top of D. and forcibly hold her down as he grabbed her neck. He also saw defendant grab D.’s breasts a couple of times. O.O. did not want to create problems for defendant since he was family, but he told defendant that he did not like what he saw.
One day, D. showed up at their house asking for help. She was crying and while she was initially afraid to describe what happened between her and defendant, she eventually told them that he had pressured her into having sex and she did not want to live with him any longer. D. also told them defendant threatened her.
O.O. confronted defendant with D.’s accusations and he confessed to having forcible sexual relations with her. Defendant appeared to know that his conduct was wrong and O.O. told him on several occasions to leave D. alone.
About a month after D. told D.M. and O.O. about the sexual abuse, the police arrived at the trailer and told her they had received a report that she was being molested. The officers told her they would talk to her at school where there was an interpreter and gave her a card with their contact information.
When defendant learned that D. had spoken to the police, he took the card away and told her she was not allowed to talk to them. He told her the next time the police tried to speak to her, she should tell them he did not do anything to her and that she was sexually abused in Mexico while she was crossing the border.
D.M. took D. to the Shasta County Sheriff’s office in Burney on September 30, 2003, where they spoke with Detective Mike Matheson. Fearing defendant’s reaction, D. told Matheson she was not having a sexual relationship with defendant. She expressed a desire to live with D.M. though at the same time asking whether she could visit defendant. Matheson closed the case after interviewing defendant who denied having a sexual relationship with D.
In October 2003, D. went to a health center where she was examined by physician’s assistant, Bonnie Boyer, who told her that she had genital warts. Following defendant’s directions, D. told Boyer she was not having sex with him but was raped in Mexico. She lied because she feared defendant would harm her and she had no way of escaping as she had no money, she did not speak English, and she had no one to help her.
A short time later, defendant drove D. to Sacramento where they stayed overnight and arranged to have his cousin Nancy Torres take D. away. He told D. she needed to leave the trailer so the authorities could not talk to her and that Nancy was going to help make the problem disappear.
When Nancy arrived, D. told her she did not want to leave her aunt D.M. but Nancy and another woman drove D. to Nancy’s home in Alturas and then to Nevada where defendant’s brother Silvestre lived. D. did not tell Silvestre about the sexual abuse because she was still talking to defendant and he told her not to say anything. Defendant picked her up about a week later and told her there were no more problems and she could remain with him. He drove them to Oregon where they lived for about five months and continued to have sexual intercourse against D.’s will.
Eventually, D.’s mother found out about the abuse and arranged for her to live with her Uncle Gabriel. Gabriel drove to Oregon and took her back to Fresno where she lived with his family for about five months until she moved to Merced to live with her brother and another uncle.
After living in Merced for a while, D. decided to be truthful with the police because by then defendant was far away and she was in therapy. Detective Matheson reopened the case in January 2005 and on March 3, 2005, D. made a recorded “pretext” telephone call to defendant. During the call, defendant stated that he really appreciated what Nancy had done, but even more, he appreciated what D. had done and he recognized that she had to put up with so much and was so strong about everything. He admitted that he and Nancy told D. what to say and that she followed their directions. He also told her that whatever was going to happen to him was in her hands and he thanked her for all she put up with.
On August 18, 2005, defendant was interviewed by the Oregon police. After initially denying that he had sexual relations with D., he admitted that they had consensual sex, although he claimed D. was the pursuer. He also admitted that they had engaged in oral sex a couple of times and that they had sex approximately 100 times. He denied having anal sex with her although he admitted that one time his penis “went in the wrong way.”
Clinical psychologist, Dr. Marilyn Wooley, testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). She explained that CSAAS is a model of behavior exhibited by children who have been sexually abused, which differs from the behavior one would normally expect from such children. Children who suffer from CSAAS go through five stages of behavior, including secrecy, helplessness, entrapment and accommodation of the abuse, disclosure, and retraction. A more detailed discussion will follow in Part I of the Discussion portion of the opinion.
Defense
Defendant called numerous witnesses to show that D. was not telling the truth, that she had been sexually abused in Mexico and her behavior was inconsistent with her testimony that he had abused her and she was afraid of him.
Bonnie Boyer, the physician’s assistant who examined D., testified that D. came to the health clinic several times complaining of various physical ailments and pain. In May 2003, she denied being sexually active, but told Boyer in October 2003 that she was living with a 30-year-old male family member and was having consensual unprotected sexual intercourse with him. Two days later, when D. went in for a blood draw, she told Boyer she was not having any sexual activity with a family member but had been raped twice crossing the border.
Defendant’s brother and sister-in-law testified that when D. stayed with them, she appeared normal, defendant called her frequently and she was always waiting for his call, she never told them she was afraid of defendant or that he had forced her to have sexual relations with him, they never saw him abuse her, and she expressed no apprehension when she left with him. On the other hand, D. spoke about a cousin in Mexico who had frequently sexually abused her and when she lived in Fresno with her uncle and his family, she told her uncle she wanted to go with defendant but he refused to allow it and she cried.
DISCUSSION
I.
Expert Testimony on CSAAS
Defendant raises several challenges in connection with expert testimony on CSAAS, claiming the trial court committed prejudicial error by failing to exclude the evidence under Evidence Code section 352 and as a result of late discovery. He also claims defense counsel was ineffective for eliciting certain damaging testimony from the expert.
We shall address each claim in turn but first set forth the procedural background and a more detailed summary of the expert’s testimony.
A. Background
D. completed her testimony on August 16, 2006, and the following day, the prosecution filed an in limine motion proffering expert testimony on CSAAS and rape trauma syndrome. The prosecutor’s theory was that the testimony was admissible for “‘the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.’” She argued that she first became aware of the critical need for this testimony during D.’s cross-examination, which revealed that D. had failed to report the abuse despite the fact she had numerous safe opportunities to do so and that she had made repeated denials, an unconvincing disclosure, and repeated recantations after her initial disclosure. Without the proffered testimony, jurors might incorrectly believe D.’s behavior was completely inconsistent with that of a person who was being forced to have sex against her will.
At the hearing on the motion, defense counsel conceded the evidence was generally admissible but argued it should be excluded in this case because the prosecution had failed to give timely notice of its intent to offer the evidence and he needed more time to familiarize himself with CSAAS and the proposed expert witness so that he could effectively cross-examine her. He also indicated that he would not have enough time to consult with his own expert.
The prosecutor informed the court that her expert would not be called to testify until August 22nd, which would give counsel five days to prepare for cross-examination. She explained that the issue was not as apparent from the police reports and it was not until cross-examination of the witnesses who came in contact with D. that she realized the extent of the problem.
The trial court ruled the evidence was admissible, finding it was relevant to a matter that was “definitely an issue” raised by the evidence during a lengthy cross-examination, the law governing the admissibility of CSAAS evidence was well established, and the expert would not be giving an opinion on specific facts.
Counsel renewed his objection on August 22nd on the grounds he had insufficient time to consult with another expert and to otherwise prepare for the testimony. He further argued that the evidence was not necessary because the issue had been discussed fairly extensively during voir dire regarding the matter of late reporting, it was unclear what myths would be dispelled by the expert’s testimony, and the risk of prejudice was great because the jury might misuse the evidence to infer the allegations were true if the victim matched the CSAAS profile. The court denied the motion and Dr. Marilyn Wooley was called to testify.
Dr. Wooley, a clinical psychologist, testified that CSAAS was first described by Dr. Roland Summit in a paper published to assist clinicians understand why children who have been sexually abused may not behave as one would expect, such as to scream, run away, or immediately report the abuse. The syndrome is characterized by five stages.
See Summit, The Child Sexual Abuse Accommodation Syndrome (1983) 7 Int'l. J. of Child Abuse & Neglect, p. 177.
The first stage is secrecy, which allows the sexual abuse to take place. There is a grooming period in which the abuser makes the child feel he or she is in collusion with the abuser, which then allows the abuser to later coerce the child into complying with the abuser’s ongoing sexual demands. The abuser also tells the victim not to inform anyone about the abuse because the abuser will get in trouble, which places the child in a psychological bind. Secrecy is enabled by families that do not discuss sexual behavior. CSAAS generally occurs when there is a close emotional relationship between the abuser and the victim. Many victims may appear to be happy and normal in their daily functioning, while suffering physical symptoms such as stomach aches, sleeplessness, nightmares, and other signs of stress. Because they feel the need to keep the secret, children with CSAAS frequently do not disclose the abuse until years after it has stopped and may deny the abuse when asked directly.
The second stage is exhibited by feelings of helplessness and the inability to escape the abuser. This factor relates to the power differential between the adult abuser and the victim and arises because children are taught to respect and obey older family members.
The first two stages lead to the third stage of entrapment and accommodation. The victim feels trapped and cannot escape because she fears disclosure would destroy her family or the abuser, or she will get in trouble. The victim begins to feel the abuse is her fault and accommodates it to avoid any trouble. A victim who is keeping the abuse secret will do what she is told by the abuser and may feel controlled by the abuser even after she is no longer under his physical control.
The fourth stage is disclosure, which may be contradictory and confusing and the victim may not remember all of the incidents or may confuse them. Generally, there is a reason someone discloses and frequently disclosure first occurs while the victim is in therapy.
The fifth stage is retraction, which is a protective mechanism that may result when the victim is pressured by a family member, or desires to preserve his or her family, which is in chaos and falling apart, or to return to their family after being placed in foster care.
Dr. Wooley testified that she did not interview D., did not know the factual allegations involved in this case, and had no opinion as to whether abuse had taken place.
The trial court instructed the jury in accordance with CALCRIM No. 1193, which is a limiting instruction regarding the use of CSAAS testimony and CALCRIM No. 332 relating to the use of expert witness testimony.
Defendant argues the trial court abused its discretion under Evidence Code section 352 by admitting Dr. Wooley’s testimony. Respondent contends defendant forfeited this claim and that it has no merit. We find the evidence was properly admitted.
Respondent argues that defendant’s sole objection to the evidence was based upon its late disclosure. We disagree. Questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892.) While defendant’s initial objection was based on late disclosure, when he renewed his objection on August 22nd, he argued that the evidence was unnecessary because it was unclear what myth would be dispelled and the risk of prejudice was great because the jury would improperly use the evidence to infer D. was a victim. In so arguing, counsel raised an implied objection under Evidence Code section 352 (People v. Gibson (1976) 56 Cal.App.3d 119, 137), sufficient to preserve the question for appellate review.
The trial court has discretion to exclude evidence under Evidence Code section 352 if its probative value “is substantially outweighed by the probability its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The trial court’s discretion is broad when assessing whether the probative value is outweighed by undue prejudice or confusion (People v. Brown (2000) 77 Cal.App.4th 1324, 1337) and its decision will not be overturned on appeal in the absence of a showing that it exercised its discretion in an “arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [Citation.].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The law governing the admissibility of CSAAS is well established in California. It is inadmissible to prove the charges of sexual abuse are true or that the alleged victim is a credible witness (People v. Patino (1994) 26 Cal.App.4th 1737, 1744); it is admissible for the limited purpose of rehabilitating a victim witness’s credibility when the defense has suggested the victim’s conduct following the abuse is inconsistent with her testimony that she was abused. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300; People v. Bowker (1988) 203 Cal.App.3d 385, 392 (Bowker); People v. Housley (1992) 6 Cal.App.4th 947, 955; In re S.C. (2006) 138 Cal.App.4th 396, 418.)
Expert testimony explaining CSAAS serves to disabuse jurors of commonly held misconceptions concerning the behavior of child sexual abuse victims by explaining the “‘emotional antecedents of abused children’s seemingly self-impeaching behavior.’” (People v. McAlpin, supra, 53 Cal.3d at p. 1301; Bowker, supra, 203 Cal.App.3d at p. 392.) Thus, when admitted, the evidence must be tailored to target the particular myth or misconception suggested by the evidence and to avoid the danger it might be considered by the jury as a predictor of molestation. (Bowker, supra, 203 Cal.App.3d at pp. 393-394; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 [rape syndrome].)
Conceding evidence of CSAAS is generally admissible, defendant argues that the evidence lacked probative value; D.’s testimony raised no issue other than her delayed disclosure, which he argues is not a proper subject for expert testimony. He further argues that there remained a great risk of prejudice from the expert’s “‘aura of special reliability and trustworthiness.’”
On the question of delayed disclosure, defendant argues expert testimony was unnecessary because prospective jurors were asked during voir dire whether a woman’s failure to immediately report rape would be grounds for disbelieving her subsequent claim of rape.
We disagree and find the probative value of the evidence far outweighed any prejudicial effect. First and contrary to defendant’s assertion, expert testimony on CSAAS was probative and necessary because the evidence showed D. went through all five stages of the syndrome, which called into question many aspects of her behavior. These included her failure to report the abuse despite having numerous opportunities to inform relatives and others, appearing normal while suffering physical symptoms, and feelings that she was worthless and helpless resulting from defendant’s treatment of her, her inability to escape and her belief that any physical resistance was futile, her initial disclosure to D.M. followed by her recantation to the Burney police, and her late disclosure to the police two years later when she was living with her brother and uncle and had begun mental health counseling.
Nor do we find any unfair prejudice resulting from the CSAAS evidence. Although Dr. Wooley’s testimony covered all stages of the syndrome, as we have just outlined, D. went through all five stages, raising issues with respect to the myths and misconceptions held in connection with each stage. However, Dr. Wooley expressed no views on whether or not D. had been sexually assaulted and she made it clear that she had never interviewed D., she knew nothing about the allegations in this case, and did not know whether defendant had abused D. The jury was also given proper limiting instructions, which informed the jury that Dr. Wooley’s testimony about CSAAS was not evidence that defendant committed any of the crimes charged and it “may consider this evidence only in deciding whether or not D.’s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony.” The jury was also directed on the proper use of expert testimony. Under these circumstances, we find no abuse of discretion.
C. Ineffective Assistance of Counsel
Defendant contends counsel was ineffective by inadvertently eliciting testimony from Dr. Wooley that it is rare for children to make a false accusation of sexual abuse, effectively vouching for D.’s credibility. He argues her testimony was prejudicial because this was an exceptionally close case in which the jury had doubts about D.’s credibility. Respondent contends this claim is without merit because counsel may have had a tactical reason for asking the question and given subsequent testimony elicited by counsel there was no prejudice. We find defendant has failed to demonstrate the requisite prejudice.
To establish the ineffective assistance of counsel, defendant must show (1) counsel’s “‘“representation fell below an objective standard of reasonableness . . . under prevailing professional norms"’” and (2) counsel’s error or omission resulted in prejudice such that there is a reasonable probability the result would have been different absent the error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693-694, 698]; In re Avena (1996) 12 Cal.4th 694, 721.) Where as here, the defendant cannot establish prejudice, the appellate court need not consider whether counsel’s representation fell below objectively reasonable norms. (People v. Boyette (2002) 29 Cal.4th 381, 430-431.)
The line of questioning at issue occurred at the beginning of counsel’s cross-examination of Dr. Wooley.
“Q. “So you don’t have any preconceptions in this case as to whether child abuse occurred or didn’t; isn’t that true?”
A. I have no idea.”
Q. Do you believe that children do make false claims of sexual abuse?
A. They can; it’s rare but they can.
Q. This particular syndrome -- and doesn’t it vary depending on the age of the child as to whether a child is more likely to make false claims of sexual abuse?
A. It’s still rare I suppose you could say. I don’t know any research that supports that, but . . .
Q. You don’t know any research as to whether a child of 6 years old may be less likely to make a claim of sexual abuse than a 17 or an 18-year-old?
A. I don’t know any research that supports one way or the other. I mean, there may be -- there may be research that says certain things, but it tends to be -- it’s rare anyway.”
To the extent this quoted exchange was prejudicial standing alone, counsel minimized it by his subsequent line of questions, which elicited the following testimony from Dr. Wooley: CSAAS was developed as a therapeutic tool; all claims of abuse that were made in the model studies were accepted at face value to be true; no attempt was made in these studies to determine whether the claim of sexual abuse was true or false because the therapeutic role is to accept the alleged victim’s claim and to look for symptomology that might exist to help the therapeutic process.
Upon further questioning, Dr. Wooley testified that patients exhibiting CSAAS behaviors could potentially include some who made false claims because the truth or falsity of the claim was never determined and was not the purpose of the therapy and this is also true for rape trauma syndrome; children who are molested often immediately reveal the molestation to authorities or a family member; and the level of helplessness felt by a sexual abuse victim who has been molested since the age of six or seven is different than for one who was molested beginning at age 15. Moreover, as recounted above, Dr. Wooley testified on direct examination that she never interviewed D. and she was unaware of the allegations in this case.
Nor was this a close case as defendant asserts. D.’s testimony was clear and convincing, she was cross-examined at great length, and her testimony was corroborated by medical testimony that she had genital warts and by the testimony of D.M. and O.O, who saw defendant standing in the window of the trailer, naked while D. was crying. When O.O. knocked on the door, defendant ran into the bathroom and exited moments later with a towel wrapped around him, falsely stating he had just taken a shower. D.M. and O.O. also testified to other occasions when they saw defendant touching D. in a sexually inappropriate manner. Additionally, there was evidence defendant demonstrated a consciousness of guilt by his elaborate efforts and schemes to keep D. from talking to the police, and his admissions to the police and to O.O.
Given the totality of this evidence and the entirety of Dr. Wooley’s testimony, it is not reasonably probable the jury would have returned a different verdict in the absence of counsel’s initial questions to Dr. Wooley. (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698].)
D. Late Disclosure
Defendant contends the trial court committed prejudicial error under federal and state constitutional law by allowing Dr. Wooley to testify even though the prosecution failed to disclose her as a witness until almost the end of trial. Respondent contends this claim has no merit because there was no discovery violation and no prejudice. We agree with respondent.
The trial court’s ruling on discovery motions is reviewed for abuse of discretion (People v. Prince (2007) 40 Cal.4th 1179, 1232) as is the trial court’s ruling on the admissibility of evidence and its ruling will not be overturned in the absence of a manifest abuse of discretion resulting in a miscarriage of justice. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)
Discovery in criminal cases is governed almost exclusively by the reciprocal discovery statutes enacted in 1990. (§ 1054 et seq., added by Initiative Measure (Prop. 115), approved June 5, 1990; In re Littlefield (1993) 5 Cal.4th 122, 129.) As part of its discovery obligations, the prosecution must provide the defense with the “‘names and addresses of persons’” it “‘intends to call as witnesses at trial’” (§ 1054.1, subd. (a)), including rebuttal witnesses. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375-376; People v. Hammond (1994) 22 Cal.App.4th 1611, 1621-1622.) The phrase “‘intends to call’” includes all witnesses the prosecution “‘reasonably anticipates’” calling to testify. (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 376, fn. 11.) Discovery must be made at least 30 days prior to trial unless good cause is shown why a disclosure should be denied, and if the material or information becomes known to the party within the 30 days of trial, disclosure shall be made immediately absent good cause. (§ 1054.7; People v. Hammond, supra, 22 Cal.App.4th at p. 1620.)
Upon a showing a party has not complied with the discovery requirements, the trial court may make any order necessary to enforce the provisions of the discovery chapter, including but not limited to “immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order . . . .” (§ 1054.5, subd. (b).) However, exclusion of testimony is an inappropriate remedy unless “all other sanctions have been exhausted” (§ 1054.5, subd. (c)) and there has been a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758; People v. Jordan (2003) 108 Cal.App.4th 349, 357-358.)
Trial commenced with voir dire on Tuesday, August 8, 2006, and the verdicts were returned on Wednesday, August 23, 2006. The eight-day trial was held on Tuesdays through Thursdays. The prosecution called D. to testify on Tuesday, August 15 and her testimony was completed on August 16. The prosecution filed its in limine motion proffering Dr. Wooley’s testimony the following day, on August 17th.
Defendant argues that the prosecutor should have reasonably anticipated calling Dr. Wooley because the question of late disclosure was evident from the police report. While it is true the police report raised the issue of late disclosure, as the prosecutor argued, that issue alone was insufficient to require expert testimony because late disclosure is common and most jurors understand that.
It must be kept in mind that “[a] trial is not a scripted proceeding. Rather, it is a process which ebbs and flows . . . [and] during the trial process, things change and the best laid strategies and expectations may quickly become inappropriate: witnesses who have been interviewed vacillate or change their statements; events that did not loom large prospectively may become a focal point in reality. Thus, there must be some flexibility. After all, the ‘“true purpose of a criminal trial”’ is ‘“the ascertainment of the facts.”’ (In re Littlefield, supra, 5 Cal.4th at p. 131.)” (People v. Hammond, supra, 22 Cal.App.4th at p. 1624, italics added.) Thus, “[a]fter hearing a witness, the necessity of a rebuttal witness may become more important.” (Ibid.)
Here the prosecutor did not decide to call the expert until after D.’s lengthy cross-examination revealed more problematic behavior and the issue became more critical. As we outlined above, her testimony showed that she failed to disclose the abuse despite many opportunities to inform multiple people, she repeatedly denied that defendant sexually abused her, made no effort to escape, and repeatedly telephoned him while she was living with her uncle’s family in Fresno.
Because the prosecutor informed the defense about her intention to call Dr. Wooley as soon as she made the decision to call this witness, we find no discovery violation. To the extent the prosecutor should have anticipated calling Dr. Wooley earlier, there is nothing in the record to suggest her failure to notify counsel about this witness at an earlier date was willful misconduct motivated by a desire to obtain a tactical advantage at trial. (People v. Gonzales, supra, 22 Cal.App.4th at p. 1758.)
Nor did her late disclosure result in significant prejudice. (People v. Gonzales, supra, 22 Cal.App.4th at p. 1758.) Because trial was only held on Tuesday through Thursday, counsel had four days (Friday through Monday) to review the cases and the literature in preparation for cross-examination, and as we discussed in sub-part B, he effectively cross-examined the expert, eliciting several mitigating concessions. Second, as discussed above in sub-parts A and B, Dr. Wooley’s testimony was properly admitted for a limited purpose and she testified within those limits, the evidence of defendant’s guilt was strong, and the jury was properly instructed on the limited purpose of her testimony. Accordingly, we find the trial court did not abuse its discretion by allowing Dr. Wooley to testify.
II.
There Was No Sua Sponte Duty to Instruct on Mistake of Fact
D., the victim in this case, was born in February 1988 and lived with her family in Mexico. She first met defendant when she was about seven years old and he began visiting her family every two or three years. She called him uncle although he is her mother’s cousin.
D. wanted to go to the United States to learn English and defendant told her he would bring her here and help her. When she was 14 years old and he was 29 years old, he helped her to immigrate illegally and after she crossed the United States-Mexican border, he drove her to McArthur in Shasta County where at first they lived with relatives.
A month later, D. and defendant moved to a one-bedroom trailer in McArthur located on property owned by her aunt and uncle, D.M. and O.O. D. slept in the bedroom and defendant slept on the couch. Her aunt and uncle lived in a house about one-half mile from the trailer.
The alleged sexual offenses occurred during the period when D. was 14 and 15 years of age and defendant and D. lived together in the trailer. Among other offenses, defendant was convicted of one count of forcible sodomy.
Defendant contends the trial court had a sua sponte duty to instruct on the defense of mistake of fact in light of his statement to police that while engaged in vaginal intercourse with D., he mistakenly inserted his penis into her anus. He argues that the trial court’s failure to give this defense instruction constitutes prejudicial constitutional error.
Respondent contends defendant’s statement to the police does not raise a mistake of fact defense and the jury was adequately instructed. We agree with respondent.
In the absence of a request, the trial court has a duty to instruct the jury “‘sua sponte on general principles which are closely and openly connected with the facts before the court.’” (People v. Abilez (2007) 41 Cal.4th 472, 517.) This duty extends to particular defenses (People v. Breverman (1998) 19 Cal.4th 142, 157-158) when raised by substantial evidence and the defense is not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
Count three of the felony complaint charged defendant with sodomy by force. (§ 286, subd. (c).) Sodomy is defined as sexual conduct consisting of contact between one person’s penis and another person’s anus. Any sexual penetration, however slight, is sufficient to complete the crime. (§ 286, subd. (a).) It is a general intent crime. (People v. Davis (1995) 10 Cal.4th 463, 519.)
Persons who commit an act or omission under a mistake of fact are exempt from criminal liability (§ 26, subd. Three) because the mistake negates the element of intent. (People v. Rivera (1984) 157 Cal.App.3d 736, 742.) A reasonable mistake of fact may be raised to defend against a general intent crime. (People v. Hernandez (1964) 61 Cal.2d 529, 534-536.)
In this case, the evidence established that during a police interview, defendant initially denied having anal sex with D., but in response to further questioning, he admitted that “one time, like when we were doing fast, I know [it] went in the wrong way.”
Defendant asserts this statement is sufficient to raise the defense of mistake of fact. However, even if his statement could be characterized as a mistake of fact, any error in failing to give the defense instruction was harmless because the jury necessarily resolved the factual issue adversely to defendant on other properly given instructions. (People v. Sedeno (1974) 10 Cal.3d 703, 721; People v. Jones (1991) 234 Cal.App.3d 1303, 1314-1315, fn. 9.)
The trial court instructed the jury on the elements and definition of sodomy and that sodomy was a general intent crime, which required proof defendant not only committed the prohibited acts, but did so “intentionally or on purpose.” This instruction served the same purpose as a mistake of fact instruction because it allowed the jury to find defendant did not commit an act of sodomy when “[it] went in the wrong way” if it believed he did not intend to penetrate D.’s anus.
The jury resolved the question of guilt on the count of forcible sodomy adversely to defendant because his statement to the police admits to only one instance of accidental anal penetration while D. testified he committed numerous acts of anal penetration and that he did so when she was menstruating and on those occasions they did not engage in vaginal intercourse. Thus, in accordance with the properly given instructions, if the jury believed defendant’s statement to police, it could have found he did not intend to sodomize her on that one occasion and still convicted him on count three based upon a finding he sodomized her on at least one other occasion. For this reason, it is not reasonably probable a different verdict would have resulted had the trial court given the mistake of fact instruction. We therefore reject defendant’s claim of prejudicial error.
III.
Full Term Consecutive Sentences
Defendant contends imposition of full term consecutive sentences under section 667.6, subdivision (d) violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) because the decision to impose consecutive sentences requires a judicial finding the offenses were committed on separate occasions. Respondent contends defendant forfeited this claim of error and argues it is without merit because People v. Black (2007) 41 Cal.4th 799 (Black II) found Blakely and Cunningham inapplicable to the decision to impose consecutive sentences.
We find no merit to defendant’s claim of constitutional error.
We reject respondent’s contention that defendant forfeited this claim by failing to raise it in the trial court. A defendant is not required to make futile objections. (People v. Welch (1993) 5 Cal.4th 228, 237–238.) Defendant was sentenced on March 16, 2006, after the decision in Cunningham and before Black II. However, Cunningham did not address the question of consecutive sentences nor did it undermine the holding in Black I, which held in part that imposition of consecutive sentences does not implicate Blakely and its progeny. (See Black II, supra, 41 Cal.4th at p. 821.) More importantly, he was sentenced well after the decision in People v. Groves (2003) 107 Cal.App.4th 1227 where the court rejected the identical claim raised by defendant herein. Because that decision is binding on the trial court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and was not expressly overruled by Cunningham, any objection by defendant on the grounds raised on appeal would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) We shall therefore address the merits of his claim.
The trial court sentenced defendant to a total prison term of 24 years after finding the four offenses were all committed on separate occasions. It therefore imposed full term consecutive sentences as required under section 667.6, subdivision (d).
Prior to imposing sentence, the trial court found defendant “paid to have [D.] illegally brought into the country and then lived in the eastern portion of the county in a very rural area and basically made her his sex slave, and although there was contact with other family members on occasion, this is a really heinous series of events . . . .”
Section 667.6 authorizes the trial court to impose full term consecutive sentences when the defendant has been convicted of two or more predicate offenses. Under subdivision (c), the trial court has discretion to impose a full term consecutive sentence in lieu of the term provided in Section 11701.1 for “each violation of” a specified offense “if the crimes involve the same victim on the same occasion.” (§ 667.6, subd. (c).) By contrast, subdivision (d) of the same section is mandatory. It provides that “[a] full, separate, and consecutive term shall be imposed for each violation” of a specified offense “if the crimes involve separate victims or involve the same victim on separate occasions.” The crimes for which defendant was convicted, rape, sodomy, and oral copulation, are among the specified offenses. (§ 667.6, subd. (e)(1), (4), (7).)
The second paragraph of subdivision (d) of section 667.6 provides that in “determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.” (Italics added.)
Turning to well established constitutional principles, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 455], italics added.) The “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham, supra, 549 U.S at p. __ [166 L.Ed.2d at p. 864], the United State Supreme Court held that California’s procedure for selecting the upper term of imprisonment violates the defendant’s Sixth and Fourteenth Amendment right to a jury trial. The court reasoned that the upper term may be imposed only when the trial judge finds an aggravating circumstance (see § 1170, subd. (b)) and therefore the middle term, not the upper term, is the relevant statutory maximum under Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at pp. 873, 876].)
On remand, the California Supreme Court in Black II, supra, 41 Cal.4th 799 reaffirmed its earlier holding in People v. Black (2003) 35 Cal.4th 1238 (Black I) that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment right to a jury trial. (Black II, supra, 41 Cal.4th at pp. 821, 823.) Cunningham did not undermine its earlier conclusion because the underlying rationale of Apprendi and Blakely is inapplicable to the question of consecutive sentences. Under those cases, a sentence enhancement is treated as the functional equivalent of a greater crime and therefore the factual predicate of the enhancement is treated as an element of the greater offense, which is subject to the defendant’s right to a jury trial on all elements. “‘Nothing in the high court’s decisions . . . suggests that [those rights] . . . apply to factual determinations that do not serve as the “functional equivalent” of an element of a crime.’” (Black II, supra, at p. 821, quoting Black I, supra.) The decision to impose consecutive sentences under section 669 is fully discretionary and the statutory scheme does not establish a presumption in favor of concurrent sentences. While the trial court may consider aggravating and mitigating factors in the exercise of its discretion, there is no requirement that imposition of consecutive terms be justified upon a finding that an aggravating factor exists. (Id. at p. 822.)
The Supreme Court in Black II concluded that the determination whether to impose consecutive terms “is a ‘sentencing decision [] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate [] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (41 Cal.4th at p. 823.)
This reasoning applies equally to consecutive sentences imposed under section 667.6. As the court found in Groves, supra, 107 Cal.App.4th 1227, imposition of consecutive sentences under section 667.6 does not implicate Blakely and Apprendi. Subdivision (c) of the section authorizes the trial court to impose full term consecutive sentences as a matter of discretion based solely upon the jury’s verdict finding a defendant guilty of two predicate offenses against the same victim. Because a defendant who is convicted of two or more predicate offenses is eligible for the more stringent sentencing scheme without any judicial fact finding, the mandatory imposition of full term consecutive sentences under subdivision (d) does not constitute an increase in the maximum possible sentence. (107 Cal.App.4th at pp. 1230-1231; see also People v. Retanan (2007) 154 Cal.App.4th 1219, 1227-1228.)
Groves was approved in Black I, supra, 35 Cal.4th at page 1263, footnote 19.
We agree with the reasoning in Groves and find the trial court properly imposed full term consecutive sentences on all four counts because each offense was a predicate offense within the meaning of section 667.6, subdivision (e). We therefore reject his constitutional claim of error.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., BUTZ, J.