The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jason Edgar Hall molested his stepdaughter over a period of years. He also molested his stepdaughter's friend at a sleepover. An information charged defendant with two counts of a lewd act with a child aged 14, two counts of sexual battery by restraint, and two counts of a lewd act on a child under the age of 14. (Pen. Code, §§ 288, subd. (c)(1), 243.4, subd. (a), 288, subd. (a).)*fn1 A jury found defendant guilty of all counts. Defendant appeals, contending there was insufficient evidence on the sexual battery by restraint counts, the trial court improperly admitted defendant's statements of drug use and pornography possession, and sentencing error. We shall modify count 4 to reflect a conviction for battery and remand the case to the trial court for resentencing on that count. In all other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant married M.M.'s mother when M.M. was about six years old. He began molesting M.M. when she was about eight years old. The molestation continued when M.M. was 11 and 12. Defendant also molested a 14-year-old friend of M.M. at a sleepover.
An amended information charged defendant with lewd act on a child aged 14 (counts 1 & 2); sexual battery by restraint (counts 3 & 4); and lewd act on a child under the age of 14 (counts 5 & 6). As to counts 5 and 6, the amended information also alleged defendant engaged in substantial sexual conduct. (§ 1203.066, subd. (a)(8), (b).) Defendant entered a plea of not guilty and a jury trial followed. The following evidence was produced at trial.
Defendant began molesting his stepdaughter when she was about eight years old. Defendant showed her his penis five times. On the first occasion, M.M. was in the bathroom adjacent to her parents' bedroom. Defendant, who was lying in bed, lifted the covers and showed M.M. his penis.
Another incident took place when M.M. was 12. M.M. was in her bedroom when defendant appeared at her door holding his laptop computer. Defendant touched his exposed penis for 10 to 15 minutes. On several occasions, defendant masturbated in M.M.'s presence.
When M.M. was 11, defendant sat next to her on the couch, grabbed her hand, and forced her to stroke his exposed penis. When M.M. was 12, she sat on defendant's lap while defendant rubbed her vagina over her clothing. In 2007 M.M. told her aunt about the molestations but did not tell her mother because she did not want to hurt her.
In 2010 14-year-old H.S. attended M.M.'s birthday party at defendant's home. Defendant, who was drinking during the party, offered the girls alcohol. H.S. took a "sip."
Defendant told H.S. to sleep next to M.M. because he did not want M.M. to sleep next to a boy. H.S. awoke to find a hand groping her breast. She silently pushed the hand away, but the person kept touching her breasts, first over her shirt, then under her shirt and bra.
Initially, H.S. was unsure who was touching her, but she determined it was defendant. Defendant touched her stomach and tried to reach into her pants. H.S. pushed his hands away "with all [her] strength." Defendant forced H.S. to touch his bare penis with her hand, telling her, "I know you want to." H.S. told defendant to stop.
Defendant got off the couch, grabbed H.S.'s face, and turned it toward him. He put his tongue in H.S.'s mouth. H.S. began to cry and defendant got on the couch.
H.S. approached her friend Z., who was on the couch, and asked to speak with her privately. H.S. told Z. what had happened. She also told defendant's wife, who looked mad and frustrated but not surprised.
Defendant then apologized to H.S. for the incident. Defendant asked, "Which one of you is it? I'm sorry, I thought you were my wife." After M.M. learned about the incident with H.S., she disclosed defendant's prior molestations.
Conversation Between Defendant and His Wife
The jury also heard a recording of a conversation between defendant and his wife while he was in jail following his arrest. Defendant's wife told him about M.M.'s allegations that defendant had masturbated in front of her on several occasions. Defendant responded, "I don't know. [¶] . . . [¶] . . . I have no idea what the hell is going on." He told his wife he did not know he was doing anything and asked why he would need sex from a little girl.
Defendant then told his wife, "If she's sayin' I did it, I musta been doin' something." Defendant also said, "Sorry. Guess I'm just a fuckin' perv or somethin'."
Defendant and his wife had the following exchange: "[Defendant]: And then when I got caught up in drugs, doin' that shit too. [¶] [Wife]: Yeah. You wouldn't admit it . . . for the longest time and then you finally admitted. [¶] [Defendant]: I know. And I finally quit. [¶] [Wife]: Yeah . . . I don't know what to do." Defendant told his wife, "apparently this is when it all happens is when I drink and . . . [¶] . . . [¶] . . . I was doin' drugs that time." When defendant turned himself in to police he stated, "I groped a girl that was at my daughter's birthday party last night."
Evidence from Defendant's Computer
At trial an investigator from the district attorney's office testified he examined defendant's laptop computer. The computer contained between 500 and 1,000 pornographic images. However, none of the pornography involved children.
Defendant's son A.H., aged 16, testified. M.M. never confided in him about defendant's alleged abuse. She never acted as though "there was a problem."
The 2010 party at which the incident with H.S. occurred was a party for both A.H. and M.M. Defendant drank about a case of beer that evening. A.H. went to bed around 4:00 o'clock the next morning. At a family meeting the next day, defendant said he was probably going to jail.
Defendant's wife testified she had been married to defendant for 10 years. In 2007 she spoke with child protective services about M.M.'s accusations against defendant, which M.M. had revealed to her aunt. M.M. did not tell her mother about the molestations. She tried to ask M.M. about the incidents, but M.M. would not tell her anything. Child protective services did not tell defendant's wife what had happened.
Defendant's wife never observed anything sexual between defendant and M.M. Defendant drank heavily between 2004 and 2007. Defendant also used drugs.
According to his wife, defendant drank a 36-pack of beer the night of the 2010 party. She went to sleep around 1:30 a.m. but got up several times to check on everyone. Defendant was still up at 4:30 a.m. and seemed exhausted. Defendant's wife did not have a problem with his sleeping on the couch in a roomful of teenaged girls because when he drank he was "not sexual."
Defendant's wife returned to bed and woke up to hear three girls, including H.S., talking in the bathroom. One girl said, " 'Your husband touched her.' " Defendant's wife woke defendant, who was "groggy, sleepy, out of it." She accompanied defendant to the ...