(Santa Clara County Super. Ct. No. CC775742)
The opinion of the court was delivered by: Mihara, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Timothy William Hawley was convicted by jury trial of four counts of aggravated sexual assault on a child (Pen. Code, § 269), three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), three counts of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)), one count of forcible sodomy (Pen. Code, § 286, subd. (c)(2)), and one count of misdemeanor battery (Pen. Code, § 242). He was committed to state prison to serve an indeterminate term of 60 years to life consecutive to a determinate term of 36 years.
On appeal, he contends that the trial court erred in (1) excluding evidence of the victim's prior sexual conduct offered to provide an exculpatory explanation for anal lacerations or admitting evidence of the anal lacerations, (2) precluding the defense from asking, in cross-examining the victim, if the victim's diary contained her "sexual fantasies," as opposed to "intimate details of her life," (3) admitting evidence of defendant's post-arrest statement " 'I know, I'm a shit,' " (4) refusing to disclose the victim's medical records to the defense, and (5) imposing full consecutive terms under Penal Code section 667.6, subdivision (d). We reject his contentions and affirm the judgment.
A. is defendant's stepdaughter. Defendant married A.'s mother in 1996 when A. was five years old, and defendant and A.'s mother lived together thereafter in a house with A. and A.'s older sister. When A. was 12 years old, defendant took her and his son Travis to a racetrack in Sacramento called American for the weekend. They stayed at a hotel. During the drive to the hotel, A. fell asleep in the car. Defendant carried her into the hotel. She woke up as she was being carried into the hotel, but she pretended to be asleep because she was too tired to walk on her own. Defendant put her down on one of the beds in the hotel room. Travis went into the bathroom and took a shower. While Travis was in the shower, defendant removed A.'s pants, shorts, and underwear. A. was scared and remained still. Defendant's hands touched A.'s chest. A. felt defendant's finger inside of her, but she was unsure if his penis touched her.*fn1 Although the penetration by defendant's finger hurt, A. remained silent. Defendant removed his finger and pulled A.'s shorts back up. A. could not understand what had happened.
After the incident in Sacramento, defendant began coming into A.'s bedroom at night and putting his finger and his penis in her vagina. This occurred about two or three times a week for more than four years. A. always pretended to be asleep when this occurred. A. could not differentiate between the events because "it happened the same way basically every time." A. recalled one incident that occurred when she was 12 or 13 because defendant had ripped her favorite pair of boxer shorts when he pulled on them while molesting her in her bed. On that occasion, A. remembered that defendant put his penis in her vagina, but she could not remember if he touched her in any other way. However, she did recall that, when she was 13 years old and in eighth grade, defendant more than once put both his penis and his fingers inside her vagina. Defendant's abuse of A. continued when she was 14, 15, and 16 years old. Defendant repeatedly put his fingers and his penis in her vagina.
On an occasion when A. was 16 years old and defendant came into her room at night when she was in bed, A. was on her period and had a tampon in her vagina. Defendant pulled down A.'s pants, turned her over so that she was face down, and put his penis in her "butt." This "really hurt" A., but she bit her tongue and continued to pretend to be asleep. After this event, A. tried to position her body when she went to sleep so that defendant would not be able to flip her over. She was not successful. The anal penetration was repeated "[a]bout five to seven times" while she was 16 years old. On one of those occasions, A. could remember praying "as hard as I could" that it would stop while the event was occurring.
For years, A. was too scared to tell anyone about defendant's abuse of her, and she always pretended to be asleep. She never said anything to defendant about the abuse, and he never said anything to her about it. A. acted like the abuse was not occurring, and she still loved defendant. In December 2006, when A. was 16 years old and in 11th grade, A. told her boyfriend M. about defendant's sexual abuse of her. He was the first person she told about the abuse. She told M. "not to say anything." M. encouraged A. to report the abuse, but A. did not think she would be believed. The abuse continued. In August 2007, A. and M. came up with a plan. They decided that the next time the abuse occurred, they would tell M.'s mother. A. wanted to disclose the abuse because she wanted it to stop.
On August 17 or 18, 2007, A. was assigned to sleep on the downstairs couch in her home because visitors were sleeping in her room. She was lying on the couch pretending to be asleep when defendant removed her blankets, pulled down her pajamas, and put his fingers and then his penis into her vagina. A. tried to call M., but his phone was off. She did not feel that she could report the abuse by herself. On a subsequent occasion in August 2007, defendant abused A. while M. was out of town.
A.'s birthday was at the end of August. That night, defendant came into her bedroom and pulled down her pajama bottoms. Then he left the room, and she could hear him going downstairs and then coming back up the stairs. He moved her legs so that they were open, and he then took pictures.
On September 2, 2007, at about 11:00 p.m., A. went to sleep in her bed in her bedroom. She was subsequently awakened by the sound of someone coming up the stairs. Defendant came into her room. A. pretended to be asleep. Defendant climbed up the steps to the top bunk on which she always slept. He pulled the bedding up, put it over A.'s head, removed her pajama bottoms, and pulled up her top. A., who was lying on her back, continued to pretend to be asleep. She was afraid of defendant because he was bigger and stronger than her. Defendant touched A.'s vagina with his fingers and then put his fingers inside her vagina. He removed his fingers and replaced them with his penis. After a while, he removed his penis and left the room. He did not remove the covers from her head or replace her clothing.
A. looked at her cell phone and saw that it was 2:22 a.m. She decided that "[t]his will be the last time," and she sent a text to M. A. then talked to M. on the phone and arranged to meet him and his mother nearby. She dressed, left the house, and met them at the corner. A. asked to be taken to the hospital, and M.'s mother drove them to the hospital. From the hospital, A. went to the police department.
At the police department, A. made a recorded telephone call to defendant.*fn2 She told defendant that he "hurt me last night" and said "I wanna know that it won't happen again." Defendant responded "It won't happen again, ever." He also said: "I promise. I swear to you. I promise." However, he insisted that it had been a one-time event. Defendant also claimed that he had used only his fingers. Defendant asked A. if she had told her friend. When she said no, he said "Do you know what could happen to me?" He insisted: "I think um, I think it's over. It's done. Forget it." "Do you know you could ruin everything-my entire life. I've ruined it. I, I ruined it. You can't ruin it, I did. I'm sick [A.]. Alright? I'll stop. I'm sorry." "Okay, if you say anything to anybody, if you say anything to mom, our entire world is gonna fall apart. I'll go to jail." He asserted that the event had occurred because he "had too much to drink" and claimed "I don't really remember." He continued to insist that he had used only his fingers, but then he said "I never did it in you anyways." Defendant eventually conceded that it had not been a one-time event. A. asked him "when was the first time?" and he replied "Maybe American. I don't know. I don't remember." "American" was the race track in Sacramento where defendant and A. had been on the weekend of the first incident of abuse.
After the phone call, the police took A. to another hospital where a sexual assault examination (SART exam) was performed. Linda Richards performed the SART exam. A. told Richards that defendant had assaulted her that morning. A. said that defendant had put both his finger and his penis inside of her. A. stated that defendant had ejaculated in her vagina and that she "felt wetness on the bed." A. denied that there had been any anal penetration.
When Richards asked if A. had engaged in vaginal sex in the last five days, A. said she had had vaginal sex on August 30 and had not had anal sex in the last five days. Richards noted that A. had tenderness upon palpation around the vaginal opening. Richards saw lacerations on the "anal verge which are those little splits that the rectal opening has that expand open when a person makes a bowel movement." Richards described the anal lacerations as "recent" and explained that "they would be somewhere within the 12 hour range." These lacerations were not bleeding, but they had not yet begun to heal. Richards did not find any semen on A.'s body, and no semen was found in A.'s vagina.
Defendant was arrested that afternoon. His penis was swabbed, and the swabs were collected. The penile swabs were found to contain defendant's DNA mixed with A.'s DNA. A.'s DNA was the "major contributor."
Two days after defendant's arrest, he telephoned his home collect from jail. His wife's sister answered the telephone and accepted the call. When defendant came on the line, he said: " 'I know, I'm a shit.' " Then he asked " 'if she is still talking to me.' " His wife's sister understood him to be referring to his wife, and she responded: " 'As far as I know.' " Defendant twice asked her to tell her sister that he had called, and she said yes both times. That was the end of the call.
A. returned to her home after defendant's arrest. A. was "really hurt" that her mother was "mad that he was in jail" more than she was concerned about A. A.'s mother told A. that it was A.'s fault defendant was in jail, and she took away A.'s cell phone and car. A. was very concerned about her mother, who was angry and cried a lot, and A. thought "if I like took back everything that I said, then maybe she would be like okay and happy again." A. mentioned recanting to her mother, and her mother said " 'don't say anything to anyone until I get a lawyer.' " A. thought briefly that, if she was going to recant, she might as well get something out of it like a new car. She told her mother that she would recant and that she wanted a Hummer. A. used a friend's computer to pick out the most expensive Hummer available. A.'s mother refused to get her a Hummer. However, A.'s mother "started to be really nice" to A., returned her cell phone, allowed her to use her mother's car, and took A. to see a lawyer about recanting. A. told the lawyer that she would not recant. A. and her mother did not get along after that, and A. stopped living with her mother. Eventually A. went to live with her father.
II. Procedural Background
Defendant was charged by amended information with five counts of aggravated sexual assault on a child (Pen. Code, § 269), three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), three counts of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)), and one count of forcible sodomy (Pen. Code, § 286, subd. (c)(2)). Three of the aggravated sexual assault counts were based on underlying offenses of forcible rape, and the remaining two counts were based on underlying offenses of sexual penetration.
At trial, the defense asserted that defendant had touched A. and masturbated in her presence on September 3, 2007, but insisted that this was a one-time event. Defendant's trial counsel asked the jury to acquit defendant of 11 of the 12 counts. The defense tried to suggest that A.'s testimony should not be believed because she had never told anyone about the abuse earlier and no one in the house had ever heard or seen defendant abusing her despite the fact that there were numerous people in the house and the house had thin walls and creaky stairs. The defense also attempted to show that the Sacramento event could not have occurred without having been observed by Travis.
Travis testified that he was "pretty sure" that another man was sharing the hotel room with defendant, A., and Travis in Sacramento. He did not recall anything "strange" occurring on that occasion, and he could not recall if he took a shower that evening. However, he had no "clear recollection" of that night. Travis also testified that he visited defendant's home on alternate weekends from the time A. was 12 until she was 16. A.'s bedroom was on the second floor of the house. For part of this time, her bed was the top bunk of bunk beds with steps leading up to it. During another part of this time, she had a regular twin bed. A.'s bed was right next to the wall of her room, and Travis's room was on the other side of that wall. He could easily hear her bed squeak because the walls were thin. From his bedroom, Travis could also hear people using the stairs. While he was sleeping in his bedroom, he never heard anyone come up the stairs in the middle of the night and make noise, and he never heard any "strange sounds" coming from A.'s bedroom. However, Travis admitted that he was a "sound sleeper." A. never told Travis that defendant was molesting her, but they were not "that close" that A. shared "personal" things with him.
Travis's sister Lindsey, who shared a room with Travis on some of those weekends until A. turned 14, and also lived in the house in the summer of 2007, testified that the walls were thin and that the stairs and floor creaked. She said that people walking on the second floor could be heard by people on the first floor. Lindsey never heard anyone walking up the stairs in the middle of the night, and she never heard any "strange noises" coming from A.'s bedroom. Lindsey spend a lot of time with A. in the summer of 2007, ...