(Super. Ct. No. 09F03428)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Andy Lauderdale Luttrell, Jr., sexually assaulted two of his stepchildren, K.H. and A.H., on multiple occasions. He was convicted by jury of three counts of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code*fn1 , § 288, subd. (a)) (Counts 3, 4, and 6), two counts of committing such an act by use of force, violence, duress, menace, or fear of immediate bodily injury (§ 288, subd. (b)(1)) (Counts 1 and 2), and one count of continuous sexual abuse of a child (§ 288.5, subd. (a)) (Count 5). The jury also found that these crimes were committed against more than one victim within the meaning of the "One Strike Law." (Former § 667.61, subd. (e)(5).)*fn2 The trial court sentenced defendant to five consecutive terms of 15 years to life and imposed other orders.
On appeal, defendant contends: (1) the trial court prejudicially erred by admitting into evidence an out-of-court statement from A.H. to his older sister disclosing inappropriate sexual conduct by defendant; (2) the trial court also prejudicially erred by instructing the jury, pursuant to CALCRIM No. 1190, that conviction of a sexual assault crime may be based on the testimony of a complaining witness alone; (3) the trial court further prejudicially erred by instructing the jury, pursuant to CALCRIM No. 1193, that expert testimony on child sexual abuse accommodation syndrome (CSAAS) could be considered in evaluating witness credibility; (4) the cumulative prejudice arising from the foregoing assertions of error requires reversal; (5) defendant's sentence of 15 years to life imposed on Count 5 must be vacated because the crime of continuous sexual abuse of a child was not listed in section 667.61, subdivision (c), at the time defendant committed this crime; and (6) the court facility fee imposed by the trial court must be stricken as an ex post facto application of the law.
The Attorney General concedes the sentence imposed on Count 5 must be vacated. We accept this concession. Defendant's remaining contentions are meritless. With regard to the first contention, the fresh complaint doctrine allows into evidence the out-of-court statement from A.H. to his older sister disclosing the sexual conduct by defendant. As to the challenges to the jury instructions, the California Supreme Court has upheld the instructions given in this case. As we have found no single instance of error, prejudicial or otherwise, there is no cumulative prejudicial error. And defendant's ex post facto challenge to the court facility fee must fail based on our rejection of this claim in several prior cases.
Accordingly, we affirm the judgment of conviction and remand the matter to the trial court with directions to impose sentence on Count 5 in accordance with section 288.5.
Incidents on Treeleaf Way (Counts 1-4 & 6)
In March 1999, K.H. and A.H. moved into a house on Treeleaf Way in Citrus Heights with their mother, D.L., and their stepfather, defendant. At the time of the move, K.H. was almost three years old and A.H. was four years old.
K.H.'s first memory of being sexually assaulted by defendant was when she was three years old. K.H. and A.H. were playing in an inflatable swimming pool in the back yard when defendant called them into the house to take a nap. A.H. and K.H. went to their separate bedrooms to do so. Before K.H. fell asleep, defendant entered her room and told her to follow him to his bedroom. She obeyed. Once inside, defendant locked the door and told her to take off her swimsuit. She again obeyed. Defendant then took off his shorts, picked up K.H., placed her on top of him on the bed, and inserted his penis in her vagina. K.H. cried out in pain and yelled: "Stop. It hurts."
At this point, A.H. came to the door and knocked several times, saying: "Let me in, let me in." K.H. continued to cry. Defendant told A.H. that he could not come into the room, withdrew his penis from K.H.'s vagina, and sat her on the bed next to him. K.H. took this opportunity to retreat to the master bathroom. She urinated, "but it hurt." When she came out of the bathroom, defendant was lying on the floor between the bed and a dresser. He told her to come over to him, again placed her on top of him, and again inserted his penis in her vagina. K.H. cried while A.H. continued knocking on the door. At some point, defendant ended his assault on his three-year-old stepdaughter, allowed her to put her swimsuit back on, and threatened to "hurt" her if she told anyone about what happened. Defendant got dressed, opened the door, and allowed K.H. and A.H. to continue playing in the pool.
About a month later, K.H. and A.H. were playing in the pool when defendant called them both into his bedroom. In the room, defendant told A.H. to take off his swim shorts. A.H. obeyed. While defendant and A.H. were sitting on the bed, defendant started "pulling on" his stepson's penis with his hand. He then told K.H., who was also on the bed, to do the same. She also obeyed. After some time, A.H. put his shorts back on and defendant took them both to get ice cream.
Incidents on Winlock Avenue (Count 5)
In November 2001, the family moved in with defendant's parents on Winlock Avenue, also in Citrus Heights. By this time, D.L. had given birth to defendant's daughter, K.L. They then moved into another house on Treeleaf Way in March 2002. In ...