The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Earl Edward Wallner of continuous sexual abuse of a child under age 14 (Pen. Code, § 288.5- --count 1)*fn1 and a count of lewd acts with a child age 14 or 15 (§ 288, subd. (c)(1)--count 2). It acquitted him of three additional counts of the latter offense (counts 3 through 5). Defendant was sentenced to state prison for seven years, consisting of six years on count 1 plus one year on count 2.*fn2
On appeal, defendant contends (1) the evidence of continuous sexual abuse was insufficient; (2) admission of two prior digital penetrations of the victim was prejudicial error; (3) the prosecutor committed misconduct consisting of forum shopping; (4) the trial court mistakenly believed that full term consecutive sentences were mandatory; and (5) the abstract of judgment must be corrected. The Attorney General concedes this last point. We shall modify the judgment.
In 2003, defendant lived in Missouri with his wife Catherine and their daughters A.C. and S.W. A.C. was born in March 1994 and was 16 years old when she testified at trial.
While the family resided in Missouri, Catherine was killed in an automobile accident. Prior to Catherine's death, defendant would kiss A.C. and her sister on the cheek or forehead. Following the death, defendant began molesting A.C.
One night shortly after Catherine's death, A.C. became frightened because she thought she had heard her mother's voice. A.C. climbed into defendant's bed with him. When she awoke the next morning, she discovered that her underwear had been pulled halfway down her legs. Defendant's fingers were in A.C.'s vagina, and his hand was moving. A.C. started screaming that the devil was making defendant do it to her. Defendant directed A.C. to not tell her sister what he had done. A.C. described the morning after this happened as "horrible," in that "everything was really quiet, and [she] didn't say or do anything, and [defendant] turned on the T.V." When asked how she had felt, A.C. testified, "I really don't think words could really explain it."
Soon after Catherine died, defendant became romantically involved with Nancy F., who was married to Catherine's brother, Harry F., also known as "Uncle Bub." Nancy and her children moved in with defendant, A.C., and her sister.
On one occasion when the other children were in the back room with the door shut, then nine-year-old A.C. went to the living room to watch television with defendant. He told her to lie on the couch with him. While A.C. was lying on the couch, "it started happening all over again." Defendant put his fingers in A.C.'s vaginal area. He asked her if she liked it, and she told him "no." When she got up off the couch, he told her not to tell anyone what had happened. She tried to tell someone, but she was unable to do so because defendant or Nancy always was present.
After residing in Missouri, defendant, Nancy, and their children moved to New Mexico where they lived for half of A.C.'s fourth grade year, her entire fifth grade year, and half of her sixth grade year. On five to seven occasions in New Mexico, defendant inappropriately placed his hands on the clothing covering A.C.'s breasts and buttocks and simultaneously kissed her on the neck. A.C. felt the kissing and the touching were inappropriate because "a father doesn't do that to a daughter. It's not right." Defendant's inappropriate touching made A.C. feel that "everything was going wrong that possibly could."
In late 2005 or early 2006, during the second half of A.C.'s sixth grade year, the group moved to Shasta County. Initially, they lived with friends, John, Kristina and their three children, on Bruce Street in Anderson. A few months later, they moved into an apartment next door.
Shortly after the family moved in with John and Kristina, defendant resumed his inappropriate behavior. While A.C. did the dishes in the kitchen and the younger children were outside, defendant would back A.C. into a corner near the kitchen counter and would place his hands on her breasts and buttocks while he kissed her neck. Defendant would tell A.C., "Don't tell anyone." This happened more than five times, but less than 10 times, while the family lived on Bruce Street. "Probably around five to seven" of these incidents occurred before A.C. turned age 14.
After residing on Bruce Street, the family moved in with some friends on Happy Valley Road. Nancy testified that this move occurred in January 2009.
Defendant continued his inappropriate behavior of touching A.C.'s breasts and buttocks while she was in the kitchen doing dishes. A.C. could not remember how many times it happened. She later estimated that it was "three or four times" after she turned 14.
As she got older, A.C. tried to tell people what defendant was doing to her but no one would listen. Following a previous attempt to run away, A.C. successfully ran away during her freshman year in high school. She returned to Bruce Street where she had friends who would help her. An aunt and uncle picked up A.C., and she reported defendant's behavior to Shasta County Sheriff's Detective Steven Curtiss in early 2009.
On the one occasion A.C. tried to tell Nancy what defendant had done to her, Nancy called A.C. a liar and refused to believe her. In June 2008, A.C. had spoken to counselor Wendy Scott about the abuse. Scott later discussed the matter with defendant and Nancy, and they told her that none of it was true.
On cross-examination, A.C. admitted that she was upset when defendant and Nancy started a relationship after Catherine died. Nancy had been driving the car when Catherine was killed; A.C. was not sure what caused the car accident. A.C. acknowledged that she did not particularly like Nancy because Nancy had put her "through hell and back." A.C. believed that Nancy's "verbal and physical abuse" of A.C. had been unfair.
While in New Mexico, A.C. spoke to a school counselor about what defendant had done to her. The counselor brought the matter to defendant and Nancy, but the two denied that anything inappropriate had occurred. This same scenario happened with more than one counselor over time. A.C. also indicated that several Child Protective Services (CPS) workers had visited her home. When A.C. tried to talk about what defendant had done to her, he and Nancy would contradict A.C. and say that everything she had told the workers was a lie.
Melony Burns, a social worker for Shasta County Children and Family Services, worked with the Wallners to determine if the family could be reunified. In that capacity, she spoke to defendant about A.C.'s allegations. At first, defendant acted contrite and admitted he had "done it" on at least two occasions. Defendant also gave Burns a letter stating: "Shortly after Catherine . . . passed away, [A.C.] crawled in bed next to me while I was sleeping. I woke up the next morning to her yelling (dad, what are you doing). I was horrified to see that my hand was in her underwear. I immediately removed my hand and made precautions to prevent further incidents. I do not remember the details of the second incident, but I swear nothing has happened ever since."
In the course of his investigation, Detective Curtiss found that in June 2008, Shasta County Children and Family Services had reported to the Anderson Police Department that A.C. had told counselor Wendy Scott that she had been molested by defendant. Curtiss interviewed defendant in February 2009 at the sheriff's major crimes office. After Curtiss confronted defendant about the molest allegations, defendant denied ever molesting A.C. The interview was videotaped and played for the jury. At the end of the interview, defendant claimed the molestation of A.C. was an accident.
Melanie Saechao, a former neighbor of the family, never observed any inappropriate behavior ...