IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 13, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TIMOTHY WILLIAM HAWLEY, DEFENDANT AND APPELLANT.
(Santa Clara County Super. Ct. No. CC775742)
The opinion of the court was delivered by: Mihara, J.
P. v. Hawley
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
I. Factual Background
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, and A. said nothing about defendant molesting her. Lindsey testified that it was her opinion that A. was not "a very truthful person."
After three hours of deliberations, the jury found defendant guilty of all of the charged offenses except for Count 1. As to Count 1, which was based on the Sacramento incident, the jury found defendant guilty of simple battery.*fn3 The court imposed consecutive 15 years to life terms for each of the four aggravated sexual assault counts and full, consecutive midterm sentences of six years for each of the other felony counts except for the September 3, 2007 rape count, for which it imposed a concurrent term. Defendant timely filed a notice of appeal.
A. Prior Sexual Conduct and Evidence of Anal Lacerations
Defendant's written motions in limine did not include any request that the trial court admit evidence of A.'s prior sexual conduct. The prosecutor mentioned the SART exam in her opening statement. "[Y]ou will hear from the SART nurse who examined A[.] and hear her findings of that examination, findings of the genital examination with respect to the rape, the sexual act that had just occurred [on September 3, 2007] consistent with what A[.] described -- tenderness, laceration. [¶] In addition, because A[.] gave her history with [defendant] and described what had happened, [the nurse] examined [A.'s] anus, rectum and buttocks area, and there were findings consistent with what A[.] said."
A. was the first witness at trial. During A.'s trial testimony, the defense sought permission to introduce evidence that A. had engaged in consensual anal sex a couple of weeks before the SART exam to show that defendant was not the source of the anal lacerations. Defendant argued that this evidence was not precluded by Evidence Code sections 782 and 1103 because it went to neither credibility nor consent. "The evidence is being offered for a noncharacter purpose to explain physical evidence . . . ." "I'm offering the anal sex with boyfriend evidence to show there's an alternative explanation for anal lacerations." Defendant's trial counsel asserted that he was not obligated to make a motion in limine to obtain admission of such evidence. Defendant's trial counsel maintained that the SART nurse would testify that "you can't reliably age those [anal] lacerations." "I'm entitled to tell the jury that there is a different source of those injuries and a different source of the conditions that were observed by the SART nurse." "[I]f there's going to be evidence of anal laceration, then I can't imagine how we can have a trial without my being able to elicit evidence from A[.] regarding consensual anal sex." The prosecutor complained that, "had there been some suggestion that they were seeking to offer sexual conduct that would impact these results [the SART findings], it [the lacerations] wouldn't have been mentioned in my opening [statement] at all."
The court disagreed with defendant's trial counsel about the necessity for an in limine motion. The court put off ruling on the issue until the SART nurse had testified. "I think it is proper cross-examination if there is evidence regarding her sexual activity at that time period." "[W]e don't know exactly what the SART nurse is going to testify to and whether or not the defense can get into other sexual acts that would be a basis for that." "It is admissible to show that there is another source of what the SART nurse observed, which is what makes this difficult because I don't think at this point without the SART nurse's testimony I can allow defense to go into other sexual activity A[.] had." "Depending upon what the SART nurse testifies as to the time frame, I am ruling that that would be admissible for the defense to ask, did you have a sexual relationship or encounters with other males during this time period that the nurse says these . . . injuries could have occurred?"
The court thereafter held an Evidence Code section 402 hearing to determine what testimony Richards, the SART nurse, would be providing. Richards testified at the hearing that she had performed a SART exam on A. on the afternoon of September 3, 2007. Richards first obtained a history from A. When Richards asked A. if she had had consensual sex in the last five days, A. told Richards that she had had consensual vaginal intercourse on August 30 and had not had consensual anal intercourse in the last five days. Richards did not ask about any other period of time. A. described defendant's rape of her at 2:00 a.m. on September 3. She told Richards that defendant had penetrated her vagina with both his finger and his penis. Richards asked A. whether there had been any anal penetration. A. responded: " 'It happened before maybe four or five times but not this morning.' " Richards did not ask when the last anal intercourse had occurred. A. also denied that any other type of sexual activity had taken place that morning.
Richards's physical examination revealed that there were three "areas of tenderness" in the vaginal area and one "laceration" on A.'s anus. The anal laceration was a "recent injury" that "hadn't even started to heal yet." Richards explained that "[r]ecent means in a matter of hours, not days or weeks . . . ." This laceration could not have been three weeks old. Richards testified: "I don't have any specific training for timing an injury." However, the injury "looked much fresher than ten or 11 days" old. The anal laceration was not consistent with A.'s statement that she had not had anal intercourse in the last five days. Richards's opinion was that the anal laceration had been inflicted between 12 hours earlier and five days earlier. Richards insisted that the anal laceration could not have been inflicted a month earlier. The laceration had been caused by some sort of blunt force trauma. In Richards's opinion, the laceration was "more consistent with non-consensual" anal intercourse than consensual anal intercourse because "anal sex that is consensual is done slowly with a lot of lubrication so you don't have injury, so it doesn't hurt."
After hearing Richards's testimony at the Evidence Code section 402 hearing, the trial court stated that "[t]he time frame that would be relevant to ask A[.] about other sexual encounters is five days." Defendant's trial counsel asserted that he could offer expert testimony "regarding the aging of the anal injuries" that would contradict Richards's testimony. When the prosecutor complained that she would have no time to prepare to examine defendant's expert, defendant's trial counsel said "I'm not sure if I'm going to call a medical expert." Then he said "I'm not intending to call her still at this point." Nevertheless, he claimed that his expert "stated that the injuries were consistent with an anal penetration one month earlier and they could also be consistent with a penetration significantly more recent than that." The court decided that, because the five-day period was "the only evidence shown," questioning "is so limited to that time frame."
Defendant's trial counsel responded with an offer of proof. He asserted that A. had made a posting to her blog on August 15, 2007, in which she accused her boyfriend of getting drunk and "try[ing] to do me in the butt."*fn4 Defendant's trial counsel claimed that this posting established that there had been an incident of "either attempted or actual anal sex with someone other than [defendant] in the two and a half weeks prior" to Richards's examination of A. He sought permission to ask A. about the event referred to in the "Xanga posting." The prosecutor argued that, "based on the state of the evidence now, the question should be limited to five days." The court agreed with the prosecutor. "[G]etting into this blog, the only reason to get into that blog is to attack her credibility if she says they didn't have anal sex during that time period. So I'm not going to allow that."
Defendant's trial counsel sought further clarification: "MR. BARTON [defendant's trial counsel]: And is the court indicating that it does not want to hear from Dr. Norrell [the possible defense expert] as well, if I could call Dr. Norrell to have her testify as to what I made, the offer of proof? That would not be something that would cause the court to reconsider its ruling? [¶] THE COURT: That's correct. [¶] MR. BARTON: Thank you. [¶] THE COURT: You certainly can call the doctor in your case and if you wish to at that point I can make a ruling as to whether or not you can recall A[.] and get into those areas . . . ." "You have the opportunity to bring in your expert. I'm not precluding that and then if you want to recall A[.], you can do that . . . and we would have further hearing as to what areas I would allow you to get into after I have heard any expert that you bring forth that gives us a foundation for going into other time periods."
The defense subsequently moved to exclude evidence that Richards had observed an anal laceration on A. during the SART exam.*fn5 Defendant's trial counsel argued that the anal laceration "simply isn't probative of anything . . . ." The court refused to exclude evidence of the anal laceration. Defendant's trial counsel then asked the court if it would "revisit" its ruling "regarding prior sexual conduct" if the defense "decide[d] to call in our case in chief an expert to testify regarding the anal laceration, the how old it is, whether it's possible to date it." The court responded: "That's -- your question calls for speculation counsel. I don't know what you may or may not present to me. So I certainly am not saying no to anything at this point. I just have no idea." The court suggested that a "hearing outside the presence of the jury" would likely be necessary.
A. subsequently testified on cross-examination that defendant had not touched her anus on September 3, 2007. Defendant's trial counsel elicited A.'s testimony that she had had sex once with M. during the five days before September 3, 2007. He asked A. to review a Xanga posting from August 2007 regarding her relationship with M. A. testified that this posting referred to a fight between her and M. in January 2007. After redirect examination, defendant's trial counsel asked no further questions of A. but asked that she be subject to recall.
When Richards testified at trial, defendant's trial counsel asked Richards if A. "indicated she had not had anal sex in that five day period," and Richards said "That's correct." Defendant's trial counsel then asked: "And did you follow up with any additional questions regarding any history of anal sex?" Richards said "No." He asked Richards if she was "certain" that the anal lacerations "are not more than five days old," and she said "Yes." Defendant's trial counsel asked that Richards also be subject to recall.
After the prosecution rested, defendant's trial counsel stated "at this point I don't believe I'm calling a SART expert." He nevertheless renewed his motion to admit evidence of prior sexual conduct. Defendant wanted to introduce evidence that A. had engaged in anal intercourse with her boyfriend during the time period preceding the SART examination. "Now, the jury has before it evidence from both Linda Richards and a chart they will be permitted to take into the jury room about anal lacerations. Without the ability to admit evidence of prior sexual conduct, we are left in a position we are unable to explain to the jury, unable to provide an alternative explanation to the jury for this physical evidence. The jury may well draw an inference from Ms. Richards' testimony from the evidence presented that those anal injuries were a result of conduct by [defendant]. We are left in a position now where we are unable to rebut that inference." The court denied the renewed motion.
The prosecutor made no reference to anal lacerations in her opening argument to the jury. It was defendant's trial counsel who referenced the anal lacerations. "There are the anal lacerations. Nurse Richards says those injuries occurred either about 12 hours before the examination, going back to five days. A[.] says that [defendant] did not touch her anal area on September 3rd, 2007. And if he had, I think there would be no reason for A[.] to lie about that given the complaints that she made later that day. And she was asked about consensual anal contact with anybody other than [defendant] during that time period, and she said that did not occur. There is nothing that connects those injuries to the time period with which [defendant] is charged with an act of sodomy." "Do not make the mistake of confusing the fact of anal lacerations with corroboration for the sodomy charges [sic]. They are not. Nurse Richards offered an opinion about when they occurred. If Ms. McGuire was not happy with that opinion, she could present contrary evidence. There is nothing that connects those injuries to [defendant's] charges."
The prosecutor responded in her closing argument. "The evidence was not meant to mislead you. . . . [¶] The laceration, [Richards] said that finding was consistent because in her experience it is not unusual that there are findings like when there has not been a disclosure or when that kind of conduct was not described. What I want to say about this, folks, is Mr. Barton [defendant's trial counsel] is right. So you don't need to resolve that in order to find [defendant] guilty of Count 10 [the sodomy count] because there is no sodomy charged on September 3rd, and you can spend a lot of time trying to figure it out, but I just want to point out to you there was no sodomy charged on September 3rd."
Defendant mounts a two-pronged attack on the trial court's rulings. He claims that the trial court was obligated to either grant his request to admit evidence of A.'s prior anal intercourse with her boyfriend or exclude evidence of the anal lacerations observed by Richards.
"A defendant generally cannot question a sexual assault victim about his or her prior sexual activity. [Citation.] However, a limited exception is applicable if the victim's prior sexual history is relevant to the victim's credibility. [Citations.] . . . Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witness's sexual conduct. [Citations.] Evidence Code section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures' unless the defense is able to show in advance that the victim's sexual conduct is relevant to the victim's credibility. [Citation.] If, after review, 'the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted.' [Citation.] 'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.' " (People v. Bautista (2008) 163 Cal.App.4th 762, 781-782.)
Defendant asserts that Evidence Code section 782's procedures were inapplicable in this case because he did not seek to introduce evidence of A.'s prior sexual conduct to attack her credibility but instead to provide an exculpatory explanation for the anal laceration evidence. We need not consider whether Evidence Code section 782's procedures apply where this is the purpose for which the defense seeks admission of evidence of a sexual assault victim's prior sexual conduct, as defendant's failure to follow Evidence Code section 782's procedures was not the basis for the trial court's exclusion of this evidence.*fn6
The trial court excluded the proffered prior sexual conduct evidence on relevance grounds because the only evidence before the jury was that the anal lacerations were no more than five days old. The trial court did not preclude the defense from eliciting evidence of A.'s sexual conduct during that five-day period, but it concluded that, in the absence of evidence that the anal lacerations could have been caused by sexual conduct prior to that period, that sexual conduct had no relevance to the source of the anal lacerations.*fn7 We agree. "No evidence is admissible except relevant evidence." (Evid. Code, § 350.) The only evidence before the jury was that the anal lacerations were no more than five days old. Thus, A.'s sexual conduct prior to that five-day period could not have resulted in those lacerations. Since this evidence was proffered solely on the issue of the source of the anal lacerations, and it was not relevant to that issue, the trial court did not abuse its discretion in excluding evidence of A.'s prior sexual conduct.
Defendant's alternative contention is that the trial court erred in admitting evidence of the anal lacerations. He claims that this evidence was irrelevant because A. denied that defendant had had any contact with her anus in the five days prior to the SART exam. We agree with defendant that this evidence lacked relevance. Defendant claims that this error violated his federal constitutional right to due process and his right to present a defense, but he cites no authority for his claim that the admission of this brief bit of irrelevant evidence was a federal constitutional error. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) Defendant provides no reason for us not to apply the general rule in this case. Consequently, we review the trial court's error in overruling defendant's relevance objection under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Ibid.)
Reversal is required only if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) Defendant's prejudice argument in his opening brief is limited to his claim that the trial court erred in excluding evidence of A.'s prior sexual conduct. He does not explain how the exclusion of irrelevant evidence of anal lacerations would have resulted in a more favorable verdict. In his reply brief, he claims that the admission of the anal laceration evidence was prejudicial because "it allowed the jury to improperly conclude that [defendant] was the cause of the anal laceration."
It is not reasonably probable that the jury contorted the anal laceration evidence in the fashion that defendant suggests. Richards testified at trial unequivocally that the anal lacerations were no more than five days old. A. explicitly denied that defendant had had any contact with her anus in the five days preceding Richards's observation of the anal lacerations. This evidence excluded defendant as the source of the anal lacerations.*fn8 The prosecutor did not suggest to the jury that the anal lacerations proved that defendant had committed the sodomy count or any other charged offense. Instead, in response to defendant's trial counsel's argument that the anal lacerations were not relevant to any of the charged offenses, including the sodomy count, the prosecutor explicitly stated: "Mr. Barton [defendant's trial counsel] is right." Under these circumstances, it is inconceivable that the trial court's erroneous admission of the irrelevant anal laceration evidence prejudiced defendant in any respect.
Defendant's trial counsel mentioned A.'s diaries in his opening statement. "During this time period A[.] kept detailed diaries. She wrote to herself and she wrote things that A[.] didn't want anybody else to hear. She didn't want anybody else to read. She wrote painfully personal things about her loves, her crushes, her fears, her sexual fantasies, her devastating relationships with her peers, with her friends as she bounced through all those things people go through in high school. Four and a half years of detailed diary entries, writing to herself and not a single mention of what she now says; that she was being raped twice a week for four and a half years."
During trial, defendant sought permission to ask A. whether she had written about her sexual fantasies in her diaries, but had not mentioned the abuse. During a hearing outside the presence of the jury, defendant's trial counsel explained: "It was my intention, and is my intention if the Court allows me to in crediting the importance of the nondisclosure to the diary, ask A[.] isn't it true that in diaries you wrote down things that you wouldn't want anybody else to know, things about boys, things about your crushes, things about fights with girlfriends, your fantasies, including sexual fantasies and fears? [¶] I have no intention of offering them into evidence or of getting into the explicit fantasies that I'm referring to. The sole purpose in making that reference in opening statement and the sole purpose for which I would elicit that is to credit the importance of her diary and the significance of the nondisclosure in that context." "[M]y sole use of the diaries was to say you kept them and didn't write that down."
The prosecutor explained that she had been unaware of the existence of the diaries until defendant's trial counsel mentioned them in his opening statement. She objected to the mention of "sexual fantasies" and asserted that "counsel could have made the same point by just saying she kept diaries for four years and there was no mention of them." The prosecutor argued that reference to "sexual fantasies" should be excluded under Evidence Code section 352.
The court precluded, under Evidence Code section 352, any reference to "sexual fantasies" because "it really does not add anything to your cross-examination that you couldn't get in without mentioning sexual fantasies in a teenage girl's diary."*fn9 "The questions are limited . . . to . . . did you have a diary during this period? Did you write everything in it? Did you write anything other than the sexual fantasies?" The court told defendant's trial counsel that he could use the phrase "[i]ntimate details of your life" instead of "sexual fantasies." Defendant's trial counsel stated that he would ask A.: "[D]id you maintain a diary of your most intimate things in your life in that diary. You didn't write anything about the alleged sexual abuse. That's my examination essentially."
During defendant's trial counsel's cross-examination of A., he established that A. had kept diaries when she was 12 through 16 years old in which she described "details of [her] life" including "boys," "boy problems," "problems with [her] girlfriends," and "embarrassing personal things." A. affirmed that, in her diaries, she "talked about the most intimate details of [her] life." She confirmed that she had never mentioned defendant's abuse in her diaries. On redirect, A. testified that she had thought it was possible that her siblings might obtain her diaries and read them.
Defendant's trial counsel argued to the jury regarding the diaries: "There is not a word in her diary where she wrote regularly and told the most intimate things happening in her life." The prosecutor responded in her closing argument. "I forgot her diaries. . . . What she did tell you is when I asked her the question did you think that anyone would ever read those diaries, she said maybe my brother or sister might find them, but no one like here [in court]. And because of the possibilities someone in her home would find them for your consideration probably you can conclude that is a reasonable conclusion why she didn't have anything in the diaries about what was going on with her."
Defendant claims that his federal constitutional rights to confront and cross-examine witnesses and to due process were violated by the trial court's ruling "disallowing trial counsel from cross-examining A[.] regarding her diary entries about her sexual fantasies."
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that 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." (Evid. Code, § 352.) We apply an abuse of discretion standard of review to a trial court's exclusion of evidence under Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 724.) "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain).)
Here, the trial court's ruling simply required defendant's trial counsel to substitute "intimate details of your life" for "sexual fantasies" in his questioning of A. about her diary entries. This questioning was intended to show that, because A. wrote about highly sensitive, personal subjects in her diary, her failure to mention the sexual abuse suggested that it had not occurred. The reference to "sexual fantasies" was calculated to highlight the highly personal nature of A.'s diary entries so as equate them with the highly personal nature of the sexual abuse. Defendant claims that referring to "sexual fantasies" was necessary to point out that A.'s diary entries covered "the sensitive topic of her sexuality." We disagree.
Defendant's trial counsel was not precluded from asking A. whether she had recorded "embarrassing personal things" and "the most intimate details of [her] life" in her diaries. If anything, these descriptions of her diary entries were far more analogous to the sexual abuse than a reference to "sexual fantasies." Sexual fantasies are events that have not occurred, rather than events that have occurred. Defendant's trial counsel's asserted intent to demonstrate that the sexual abuse was akin to the highly personal events recorded in the diary would not have been furthered by evidence that A. had recorded imaginary events in her diary. The probative value of using the words "sexual fantasies" rather than "intimate details of your life" and "embarrassing personal things" was practically nonexistent. Against this lack of probative value, the trial court was entitled to weigh the substantial danger that evidence that A. had written about "sexual fantasies" might be used to improperly suggest that the reported sexual abuse was a mere fantasy, thereby confusing the issues and misleading the jury. We can find no abuse of discretion in the trial court's ruling excluding reference to "sexual fantasies" under Evidence Code section 352.
Nor do we see any violation of defendant's federal constitutional rights. Evidence that A. had recorded her "sexual fantasies" in her diary would not have given the jury a significantly different impression of A.'s credibility (Quartermain, supra, 16 Cal.4th at pp. 623-624), so the preclusion of the use of those words did not violate defendant's rights to confront and cross-examine A. Application of the ordinary rules of evidence, including Evidence Code section 352, does not violate a defendant's federal due process rights. (People v. Snow (2003) 30 Cal.4th 43, 90.)
C. Defendant's Statement
Defendant moved in limine to exclude under Evidence Code section 352 his statement to his wife's sister, " 'I know, I'm a shit,' " which he made two days after his arrest. The defense argued that this evidence was "very dangerous," was "probative of virtually nothing," and had "tremendous potential" for "misuse" by a juror, who might view the statement as an admission. The prosecutor argued that the statement was properly viewed as an admission. The court concluded that "there is evidence that [the statement] is some sort of an admission of his culpability." The court found the statement "not so prejudicial" and ruled that "the probativeness of it . . . outweighs any prejudicial effect."
Defendant's wife's sister testified to the " 'I know, I'm a shit' " statement at trial. The prosecutor very briefly mentioned the statement in her argument to the jury. "When his sister-in-law came in to testify about him saying he was a shit, excuse my language, that's what he said, when he called a couple of days after his arrest."
Defendant claims that the trial court erred in admitting this evidence because it was irrelevant. lacked probative value, and was unduly prejudicial. We cannot accept defendant's claim that his statement was irrelevant. The timing of his statement and the context in which it was made strongly suggested that his statement was a tacit admission that he had sexually abused A. in some manner. The statement was made in a collect call from jail just two days after defendant's arrest for sexually abusing A. and after he made damaging admissions in a recorded telephone call. His statement was followed by his inquiry as to whether his wife "is still talking to me." In this factual context, the clear import of defendant's " 'I know, I'm a shit' " statement was that he was taking responsibility for the events that had led to his arrest and to his belief that his wife was no longer speaking to him. Those events were his acts of sexual abuse of A. Hence, we find defendant's " 'I know, I'm a shit' " statement was relevant as an admission that he had sexually abused A.
This relevant statement had significant probative value because it demonstrated defendant's consciousness of his guilt on the sexual abuse charges. It had no potential to confuse the issues as his guilt on these charges was the focus of the trial. Nor was it substantially likely to mislead the jury as there was no evidence to suggest that there was some other viable non-inculpatory explanation for his statement. While the statement was harmful to defendant's case, it is only undue prejudice that must be avoided, "not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638.) The trial court did not abuse its discretion in refusing to exclude this statement under Evidence Code section 352.
D. Medical Records
Defendant asks us to review A.'s medical records on the premise that the trial court prejudicially erred in failing to disclose to the defense relevant evidence in those medical records. The trial court conducted an in camera review of the medical records before trial and declined to release them to the defense. It found that the records contained no relevant evidence and the "possibility of some sort of impeachment does not outweigh the privilege of medical records." At trial, A. testified that she never said anything about the abuse to a doctor prior to reporting the abuse in September 2007. During cross-examination of A., defendant's trial counsel asked the trial court to review the medical records again. The court did so and again found nothing relevant that merited disclosure.
We have conducted a review of the medical records and have found nothing relevant that merited disclosure. Therefore, we reject defendant's claim that the trial court erred in failing to order disclosure of the medical records to the defense.
E. Consecutive Sentences
At the sentencing hearing, defendant's trial counsel argued that Penal Code section 667.6, subdivision (d) did not apply because the sexual penetration and rape offenses did not occur on separate occasions, and a court finding of separate occasions was barred by Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296. He also argued that violations of Penal Code section 269 were not subject to mandatory consecutive sentences under Penal Code section 667.6.
The trial court found that the acts "were separate and distinct enough from each other that it is appropriate to run them consecutive." The court imposed full consecutive midterms under Penal Code section 667.6, subdivision (d) for each of the determinate term counts except for the second September 3, 2007 count, for which it imposed a concurrent term. The total determinate term sentence was 36 years. The court imposed full consecutive 15 years to life terms for the four Penal Code section 269 counts under Penal Code section 667.6, subdivision (d), for a total of 60 years to life. The indeterminate terms were imposed consecutive to the determinate terms.
Defendant makes two contentions regarding the trial court's utilization of Penal Code section 667.6, subdivision (d) in sentencing him.
Penal Code section 667.6, subdivision (d) mandates that "[a] full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions." Penal Code section 667.6, subdivision (e) provides: "This section shall apply to the following offenses: [¶] (1) Rape, in violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261. [¶] (2) Spousal rape, in violation of paragraph (1), (4), or (5) of subdivision (a) of Section 262. [¶] (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. [¶] (4) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 286. [¶] (5) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] (6) Continuous sexual abuse of a child, in violation of Section 288.5. [¶] (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d) or (k), of Section 288a. [¶] (8) Sexual penetration, in violation of subdivision (a) or (g) of Section 289. [¶] (9) As a present offense under subdivision (c) or (d), assault with intent to commit a specified sexual offense, in violation of Section 220. [¶] (10) As a prior conviction under subdivision (a) or (b), an offense committed in another jurisdiction that includes all of the elements of an offense specified in this subdivision." (Pen. Code, § 667.6, subd. (e).)
Defendant contends that Apprendi prohibits the imposition of mandatory consecutive sentences under Penal Code section 667.6, subdivision (d) based on a court, rather than jury, finding that the offenses occurred on "separate occasions." Yet defendant concedes that the California Supreme Court has already rejected this contention in People v. Wilson (2008) 44 Cal.4th 758 (Wilson). (Wilson, at p. 813.) Because we are bound by the California Supreme Court's decision in Wilson (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we must reject this contention.
Defendant also contends that the trial court erred in applying Penal Code section 667.6, subdivision (d) to his Penal Code section 269 convictions. He points out that the offenses listed in Penal Code section 667.6, subdivision (e) do not include a violation of Penal Code section 269.*fn10 Defendant concedes that the underlying offenses for his Penal Code section 269 offenses were violations of offenses listed in Penal Code section 667.6, subdivision (e), and he acknowledges that two published cases have rejected his contention. Nevertheless, defendant contends that these cases were wrongly decided.
At the outset, we note that Penal Code sections 269 and 667.6, subdivision (d) are not duplicative. Each of them serves to increase the punishment for specified sex offenses on an independent basis. Penal Code section 269 imposes life terms for certain sex offenses, which would otherwise be punished by determinate terms, only where the victim is under 14 and seven or more years younger than the perpetrator. This lengthier term is clearly based solely on the vulnerability of young child victims to significantly older perpetrators. Penal Code section 667.6, subdivision (d) requires the court to impose a full consecutive term, rather than allowing the court discretion to impose a concurrent term or a one-third consecutive term, for each additional specified sex offense that the perpetrator commits on a single victim on a separate occasion. This increase in the punishment for the additional offense is based solely on the fact that the additional offense occurred on a separate occasion. To accept defendant's argument, we would have to conclude that the Legislature intended for the imposition of increased punishment based on the vulnerability of the victim (Penal Code section 269) to preclude the imposition of increased punishment based on the fact that the abuse was repeated on separate occasions (Penal Code section 667.6, subdivision (d)). Such a conclusion would defy rationality.
Defendant's contention was rejected a decade ago in People v. Jimenez (2000) 80 Cal.App.4th 286 (Jiminez). In Jiminez, the defendant was convicted of two Penal Code section 269 offenses, both of which were based on underlying sodomy violations. (Jiminez, at pp. 288-290.) The trial court imposed consecutive terms for the Penal Code section 269 offenses under Penal Code section 667.6, subdivision (d), and the defendant claimed on appeal that this was error because Penal Code section 269 was not listed in Penal Code section 667.6, subdivision (e). (Jiminez, at p. 290.) The Fifth District Court of Appeal rejected his contention. The court pointed out that Penal Code section 269 had not existed when Penal Code section 667.6 was enacted, and, while both of the statutes aggravated the punishment for certain sex offenses, they did so on different bases. (Jiminez, at pp. 291-292.) The Fifth District concluded that the two statutes are "cumulative, not alternative, to each other." (Jiminez, at p. 292.) It found no error in the court applying Penal Code section 667.6, subdivision (d) where the underlying offense that triggered application of Penal Code section 269 was listed in Penal Code section 667.6, subdivision (e) because the necessary "factual predicate" for application of Penal Code section 667.6, subdivision (d) had been established. (Jiminez, at p. 291.) In People v. Figueroa (2008) 162 Cal.App.4th 95 (Figueroa), the Fourth District addressed the same contention and agreed with Jiminez. (Figueroa, at pp. 99-100.)
We agree with the analysis in Jiminez and Figueroa, and we therefore reject defendant's contention.
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J. McAdams, J.