(Super. Ct. No. SCD209633) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
The opinion of the court was delivered by: Irion, J.
CERTIFIED FOR PUBLICATION
Robin Andrew Dunn appeals the judgment sentencing him to prison after a jury found him guilty of committing sex crimes against an eight-year-old relative and infecting her with syphilis. Dunn contends the judgment must be reversed because (1) the trial court abused its discretion in denying his motion for mistrial, which was based upon the failure of his retained expert witness to appear at trial; and (2) trial counsel provided ineffective assistance by failing to subpoena the expert witness to appear at trial. We reject these contentions and affirm the judgment.
A. Dunn's Molestation of Minor
In the summer of 2007, Dunn and a relative who was eight years old at the time (hereafter Minor) lived in an apartment with Dunn's girlfriend, Ava Loftis. Several relatives of Loftis also lived in the apartment.
One night, while Loftis was at work, Minor watched a movie with Dunn in the master bedroom and then went to sleep on the floor. Dunn picked Minor up from the floor, laid her supine on the bed, removed her pajama bottoms and underwear, and lowered his own underwear. Then, in the words of Minor, Dunn got "on top of [her]," "humped" her, and touched his "private part" to her "private part" in a way that hurt her.*fn1 As Minor tried to push Dunn away, she told him "to get off [her] and [she] wasn't his girlfriend," but Dunn told her to be quiet.
Dunn eventually got off Minor, who went back to the floor and lay down. Approximately five minutes later, Dunn lifted Minor back onto the bed, and again touched his "private part" to her "private part."
B. Minor's Reports of the Molestation
The following morning, Loftis's son told Minor he heard her say, "Stop. You're nasty. I'm not Ava," and asked her why she said that.*fn2 Minor told him what Dunn had done to her in the bedroom.
When Loftis returned home from work, Minor also told her that Dunn "was feeling on her and humping on her." A few days later, Loftis and Minor telephoned and reported the molestation to Minor's mother (hereafter Mother), who immediately went to Loftis's apartment to pick up Minor.
Mother took Minor to a hospital. While there, Minor met with a social worker and informed her that she (Minor) was in the hospital because Dunn had "humped" her and touched her with his penis "inside [her] pants."
Minor also spoke to a police officer at the hospital. She told the officer she was at the hospital because "she had humped [Dunn]," and explained that " 'humped' meant that two people lie down, one on top of the other, and they don't wear any clothes and then they go up and down." Minor also told the officer that Dunn had taught her what "humped" means.
Minor later repeated this account of the molestation to a forensic interviewer. During the videotaped interview, which was played for the jury, Minor used anatomically correct dolls to illustrate how Dunn had "humped" her. Minor pointed to the "private" on the male doll and stated Dunn put that "[i]nside" her "private."
C. Minor's Sexual Assault Examination
After Mother and Minor left the hospital, Mother immediately took Minor to be examined by Marilyn Kaufhold, a pediatrician specializing in child abuse. Kaufhold examined Minor's genitalia and anus, but found nothing of significance that was abnormal.
Kaufhold testified that a normal physical examination was consistent with Minor's report that Dunn had "humped" her and it hurt, provided Dunn had rubbed his penis against Minor's vulva (or external genitalia) but had not inserted it into her vagina. Kaufhold explained that young children generally do not know the anatomy of their genitals or understand how the various parts "fit together." Thus, a girl might say something went "inside" her if it went "inside the labia and in the vestibule without going into the anatomic vagina." If Dunn's penis had actually penetrated Minor's vagina, however, Kaufhold would expect to have found "serious tears" requiring surgical repair.
D. Minor's Diagnosis with Syphilis
Approximately six weeks after Mother took Minor to Kaufhold, Mother took Minor to her regular pediatrician, Genevieve Minka, for a scheduled appointment. Mother informed Minka that Minor had a discharge in her underwear, and Minor's vulva "had a sore spot" and "looked swollen like somebody was messing with her." Minka observed a circular ulcer with a raised edge on Minor's right labium majus. The lesion extended from the outer to the inner aspect of the right labium majus; to visualize it fully, Minka had to separate Minor's labia majora. Minka also detected redness and enlarged lymph nodes in Minor's groin. Based on these physical findings and the history of sexual abuse, Minka suspected Minor might have a sexually transmitted disease and ordered her blood tested. The test came back positive for syphilis.
Before this diagnosis of Minor with syphilis, neither Minor nor Mother had been diagnosed with or treated for that disease. Subsequently, Mother's blood tested ...