Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. Nos. SC143287, SC145491
MARCHIANO, P.J.
A charge of possessing child pornography was tried together with charges of sexually assaulting an underage victim. The principal issue is whether the court’s refusal to sever the child pornography count for trial was an abuse of discretion that unfairly prejudiced the defense of the sexual assault allegations. We conclude that it was not.
Defendant Marc L. Artieres was convicted in Marin County Superior Court case No. SC145491 of sexually assaulting Jane Doe (Doe), a 14-year-old girl, and possessing child pornography. Defendant was previously convicted in Marin County Superior Court case No. SC143287 of illegal possession of drugs and weapons, imposition of sentence was suspended, and he was granted probation. We modified and affirmed the judgment in case No. SC143287 in People v. Artieres (Oct. 29, 2008, A117922) [nonpub. opn.].
Defendant now appeals from a judgment sentencing him to prison for offenses in both cases. We find no error apart from a sentencing mistake in case No. SC143287 that can be rectified by modification of the judgment, and affirm the judgment as so modified.
I. BACKGROUND - CASE NO. SC145491
A. Sexual Assault Charges
The sexual assaults were alleged to have occurred on August 25, 2005, when Doe was living in defendant’s home with defendant, defendant’s teenage son Marc, defendant’s teenage daughter Alexis, and 28-year-old Angela Griffiths. Doe and Alexis had been friends for a number of years. In the summer of 2005, Doe’s mother Charlene did not have a place for her and Doe to live, and left Doe at the home of defendant’s ex-wife, Deborah Murphy, where Alexis lived most of the time. Doe spent about three weeks with Murphy, and then went to stay with defendant. Doe estimated that she had spent about 100 nights in defendant’s home from the time she was eight years old.
Doe testified that, on the night in question, she and Alexis smoked marijuana, and then went to Alexis’ room to watch a movie. In the middle of the movie, Alexis went to the bathroom and locked the door. Doe felt “pretty high” from the marijuana, and thought that Alexis got sick from smoking it. Doe got her marijuana from defendant or a friend, and had smoked marijuana with defendant on one occasion. Doe checked on Alexis, thought she would be okay, and returned to Alexis’ room, where she went to sleep.
Doe woke up shortly thereafter with defendant on top of her in Alexis’ twin-size bed. Defendant was gently rubbing her stomach under her clothes, and slowly taking her clothes off. He had never touched her that way before, and she was “[k]ind of shocked.” She pushed defendant off her, and went to check on Alexis again. Ms. Griffiths had been out, but had returned home by that point, and Doe said she felt safe with Griffiths there. She talked with Griffiths, smoked a cigarette, and went back to sleep in Alexis’ bedroom.
Doe woke up again with defendant taking off her clothes. He put a pillow over her face so that she could breathe, but could not see him. When she was interviewed by Novato police detective Sophia Winter, Doe said that she moved the pillow and saw defendant; at trial, Doe testified she “just kn[e]w” it was him. He pulled her pants off and put his penis in her vagina for five minutes. She was shocked and felt that she had done something wrong because she did not say, “No.” She reported to police that defendant had put his fingers inside her, but could not recall at trial whether that was true. She thought that defendant had an orgasm, but did not know where he ejaculated. He rolled off her onto the floor, and pretended to be asleep.
Doe said that she left the room and found Griffiths waiting outside. Griffiths told Doe that she knew what was going on, and Doe was afraid because she thought that Griffiths would tell her mother. Doe was worried that her mother Charlene could not handle learning about the incidents, and never told her everything that happened. Griffiths told Doe that she was going to pack up Doe’s clothes, and that Doe would not be staying at defendant’s home any longer. Doe heard Griffiths talking with defendant in his room, and went to sleep with Alexis on a couch. When Doe woke up the next day, her clothes were in her suitcase by the door. Murphy picked her and Alexis up that day, and she stayed with Murphy for three days before going home with Charlene.
Two weeks later, Griffiths told Charlene what had happened; Doe learned of this when she came home from school and found Charlene crying. Charlene told her Griffiths said that defendant had raped her in Alexis’ room, and Doe replied, “Yeah.” Doe said that Charlene told her to write down everything that happened. Doe testified that she was angry when she wrote the statement because she did not intend to tell anyone what transpired and “knew it was the beginning of a lot of stress.” The statement did not describe any sexual activity between her and defendant. Doe wrote that she went to sleep on Alexis’ bed and the “next thing I know [defendant is] on the bed with me.” She “got up all confused” with defendant “pretending he was asleep.” When she went back to sleep, the “next thing I know [defendant is] on top of me with the pillow over my face.” When she got up again, Griffiths “told me what she [heard] so we talked about [defendant] drugging me and [L]exy and stuff like that.”
Psychologist Anthony Urquiza, an expert in child sexual abuse, testified about the elements of Child Sexual Abuse Accommodation Syndrome, which include “delayed and unconvincing disclosure.” Urquiza said that child victims commonly delay reporting sexual abuse, and that the reporting is often a “process of disclosure.” A victim will begin with something “vague and nondescript” such as “[h]e made me feel uncomfortable, ” and then, if the responses are supportive, disclose more about what occurred.
Griffiths testified that when she returned to defendant’s home that evening, she heard the bed in Alexis’ room making noise, and discovered that Alexis was passed out on a bathroom floor. Griffiths said that defendant emerged from Alexis’ bedroom shortly before Doe; he was dripping in sweat, with an erection she could see through his pants. Griffiths had seen defendant sweat like that before, when she and defendant had sex. Griffiths said defendant told her that he had been watching a movie with Doe in the bedroom. Defendant went back into the bedroom five or 10 minutes later, followed by Doe. Griffiths heard defendant having sex with Doe, and telling her to be quiet. Griffiths assumed that the sex was consensual, and “[s]tarted coming unglued.”
Griffiths testified that when Doe emerged from the room one-half hour later, she grabbed Doe, “started kind of not very loudly yelling at her” about what happened, and threatened to call Doe’s mother. Doe was “nonchalant” at first “like she was going to try and... deny it, ” but Doe’s demeanor changed when she realized how serious Griffiths was, and she started crying. Doe told Griffiths that she “woke up to [defendant] having sex with her, ” and that she did not want her mother to know.
Griffiths testified that when she confronted defendant about the incidents later that night, he denied having sex with Doe and said that he was being set up for money by Doe and Charlene. When Griffiths was interviewed by police before trial, she said that defendant admitted that night having had sex with Doe. She testified at trial that she asked defendant to pay her money to keep quiet about what happened. Griffiths later cashed a check from defendant’s account for $2,400 or $2,600. She testified at one point that defendant signed the check before she took it from him, and at another point that she took a blank check; the check was in any event understood between them as a bribe for her silence. She admitted that she had been arrested for selling marijuana and shoplifting.
Charlene took Doe to the police station the day Doe first admitted the incidents. Charlene testified that Griffiths suggested she try getting money from defendant, but she told Griffiths “it didn’t matter” because money “was the least of [her] worries” when she found out what had happened to her daughter. She had not sued defendant for what he did to Doe, and had no intention of doing so. Detective Winter testified that, several months after the incidents were reported, Charlene informed her that defendant’s ex-wife Murphy had called and said that defendant wanted to talk with her. Winter had told Charlene not to communicate with defendant, and insofar as Winter knew she never did so. Charlene admitted asking defendant for money for gas on one occasion, and joking that he should pay for her to have breast implants. She acknowledged a misdemeanor drug conviction.
Murphy testified that when she visited defendant in jail and asked him for child support, he said that he needed his money to retain counsel, but that she and Charlene could split the money if she could persuade Charlene to have Doe drop the charges against him. Murphy told defendant that she was not going to do that. Murphy said defendant never told her that Charlene or Griffiths were blackmailing him. Murphy said that Charlene once stole her AAA card.
Novato police officer Kevin Naugle testified that he met Doe and Charlene when they came to the police station, questioned Doe about the statement she had written, and referred her for an interview by the child abuse investigation team at the Jeanette Prandi Center. Michael Grogan, the project director at the Jeanette Prandi Center, testified that when Charlene brought Doe for her interview, Charlene told him, “I just hope she lets... it out because... she bottles everything up and doesn’t talk to me.” Detective Winter testified that when she contacted Charlene while investigating the case, Charlene’s demeanor was that of a very concerned parent, who was upset about what was going on with her daughter.
Doe placed a pretext phone call to defendant in November 2005. During the conversation, Doe asked defendant whether he had used a condom. Defendant replied, “I don’t think, maybe.... We shouldn’t even talk about it. I’m not even sure what happened that night. I was kinda sleepy. But [Griffiths] and the girls are trying to make a bunch of stories up.” Defendant told Doe that “[i]f [Griffiths] or them end up botherin’ you again, just... nothing will happen. Just shut up. She just stole from me. Now she’s just fuckin tryin to make a smoke screen.” Defendant told Doe to call him if she needed money for anything.
Defendant testified at trial and denied stroking Doe on the stomach or having sex with her. He said that he was sleepy and confused when he answered her pretext call. He said that he, Doe, and Alexis went to Alexis’ room to watch a movie on the night in question. He fell asleep, and was alone in the room when he woke up. Doe had told him that Alexis was not feeling well; he went to the bathroom, where Alexis, who was “real groggy, ” was just getting up, and brought her back to her bedroom. He went outside for awhile and then returned to the bedroom, Doe joined them, and the three of them watched the movie.
Defendant said that Griffiths woke him up the next morning and accused him of having sex with Doe. He offered to talk to Doe and go to the police station, but Griffiths declined. He asked Griffiths to leave the house that morning because he suspected her of stealing; he was going away, and he did not want her there when he was not around. She was angry and asked him for money. He refused, but told her that she could keep her possessions in his garage. Charlene asked him for money in 2005 for gas and for getting an apartment, and she was unhappy when he refused. She thought he was hiding an affair her boyfriend was having, and told him many times “[Y]ou’re all going down.”
Defendant was “convinced that [Doe] was talked into something that didn’t happen. She was stoned out of her mind, and [Griffiths] convinced her something happened, and I don’t think she knows what happened.” When defendant was interviewed by detective Winter, he said that Doe was very promiscuous and needed a lot of attention. He noted that he had been entirely alone with Doe many times, and had better opportunities to assault her on those occasions, if he had been so inclined, than on the night in question. Winters asked defendant whether there was “any reason that anything of your hairs, or semen, or anything, would be found on [Doe’s] body? Can you explain that in any way?” Defendant said that Doe sometimes wore his boxer shorts to bed. Doe denied ever wearing defendant’s boxers, and Alexis testified that she never saw Doe wearing them.
Defendant said that Murphy had brainwashed their son into thinking that he was running a big cocaine cartel and a “den of inequity.” Defendant was convicted of a misdemeanor for bringing a vial of synthetic urine to a drug test shortly before trial; he was worried about testing positive because he had done a “line of crystal.” He acknowledged that methamphetamine and cocaine were found in his home in July 2005, and admitted using methamphetamine the day before the incidents with Doe allegedly occurred.
Debbie Martinez (Debbie), defendant’s fiancée at the time of trial, testified that Charlene always said that defendant should help her financially because he had money. Debbie said that Charlene had offered to testify falsely to assist her in a sexual harassment lawsuit. Debbie acknowledged that defendant harassed her in the summer of 2005, but said that she exaggerated when she claimed in applying for a restraining order that defendant made her fear for her life; she did not think the police would protect her unless she stretched the truth. Sonoma County Deputy Sheriff Mechelle Buchignani testified that Debbie had appeared genuinely frightened when she sought the restraining order.
Debbie’s daughter, Michelle Martinez (Michelle), recalled a night when she stayed at defendant’s house while he was out of town, and found Charlene at 3:00 a.m. rummaging through garbage outside the house and trying to get into the garage. Charlene thought that her boyfriend was in the house, and begged Michelle to let her inside. Michelle said that Doe was dirty and hungry when Charlene dropped her off at defendant’s house around Christmas of 2004. Doe was supposed to stay at the house for only a few hours, but remained there over a week. Michelle lent Doe clothes, and defendant fed Doe and gave her money.
James Michael Anthony, an attorney who had at one time represented defendant in the case, testified that when he met with Griffiths in January 2007, she denied telling the police that she had overheard defendant and Doe having sex. Griffiths told him that she had reported this inaccuracy in the police reports to the prosecutor. Anthony took no notes of the meeting. Anthony said that he “found the police to be extremely biased and prejudiced [against defendant] in this case.” Anthony’s license to practice law was suspended in 2007 for violation of State Bar rules.
B. Child Pornography Charge
Defendant was being investigated by law enforcement in July 2005 for stalking Debbie. Debbie had obtained a restraining order that prohibited defendant from contacting her, but he was sending her threatening e-mails. Rohnert Park police arrested defendant in the early afternoon of July 22, 2005, a block away from Debbie’s house. Deputy Buchignani and other officers served a search warrant on defendant’s home in Novato on July 23, 2005, and seized a computer from his bedroom. The computer was found to contain child pornography, and a further warrant was obtained to search its contents.
Deputy Sheriff John Eubanks testified that he found 77 videos and 1, 000 images of child pornography in various places on the computer, including temporary internet files, the recycle bin, and a folder on the desktop called “HP Demo.” Seventy-nine of the photos Eubanks described as the “most egregious” were admitted into evidence; the court precluded the prosecution from displaying more than 15 of them in court. The prosecution introduced a spreadsheet showing the dates and times the photos were last written and accessed. Brief excerpts of two of the videos were played during the trial. Eubanks also searched the computer’s hard drive for “teen porn”-“pornography of teenagers that possibly could be under the age of 18”-looking for females with blond hair, and 10 such photos were admitted into evidence. Eubanks testified that pornography collectors usually copy their contraband files onto other media such as compact disks and thumb drives, but he was never apprised that any such media were found in defendant’s home.
Search terms for child pornography, such as “Lolita, ” were found on defendant’s computer. When Eubanks interviewed defendant in October 2005, defendant appeared to be familiar with those search terms, and broached the term “CP, ” a shorthand for child pornography. Joe Brumbaugh, a friend who helped defendant with his computer, testified that he found a “Lolita-type website” on the computer, and a photo of a young boy that caused him concern. When Brumbaugh mentioned them to defendant, defendant said that he was not aware of them and told Brumbaugh to delete them. Debbie told Buchignani in an August 2005 interview that she had seen what she believed to be teenage pornography on defendant’s computer.
Defendant denied downloading child pornography. He said that child pornography had popped up on a couple of occasions in e-mails he received, and that he had deleted it. Defendant said that he did not keep his computer password a secret, and that many people used his computer, including his children, Michelle Martinez and her friends, and other guests in his house. Defendant said that Michelle had her own password protected area on the computer, and that her password was kept secret because he did not want his children seeing photos posted by Michelle and her friends for California Hard Bodies. Michelle testified that she was working as a stripper at the time, and was in contact with Hustler and Playboy magazines. Michelle denied having a password on defendant’s computer, and said that “[a]nybody had access to [it].” She said that defendant’s “house was always unlocked. Anybody had free reign to that house if they wanted.” Among the people who came and went were defendant’s “[k]ids, kids’ friends, me, my mom, his ex-wife, friends of his, friends of friends of his.”
The prosecution spreadsheet cataloguing the 79 child pornography photos in evidence showed that many of them had been last written, and most of them had been last accessed, in the afternoon or evening of July 22, 2005, after defendant’s arrest earlier that day. Murphy spent the night of July 22, 2005 at defendant’s house, and was there when the police seized defendant’s computer the next morning. She did not think she used defendant’s computer, and did not know if anyone else used it that night. She said that she might have checked her e-mail, but she generally used the computer in Alexis’ room, not defendant’s computer. Deputy Eubanks attributed the common “last accessed” date for most of the child pornography photos to the running of an antivirus scan on defendant’s computer.
Eubanks’ opinion was disputed by defense witness Stephen Hummel, an expert on computer viruses. Hummel doubted that an antivirus scan had been run because he found 13 viruses on defendant’s computer, and while an antivirus program would typically scan the entire hard drive, not all files had a July 22, 2005 “last accessed” date. Hummel found Trojan horse viruses that would allow unknown persons to access defendant’s computer. Hummel agreed with Eubanks’ tallies of child pornography images and videos on the computer. Hummel was asked, “Would you agree that the more different locations you find child pornography on a computer, the more likely it is it was intentionally placed there by a user?” He answered, “Temporary internet files-you might have thousands of those things placed there-don’t show me that. Things placed in other locations would show me that.” He acknowledged finding “[a]ll different kinds” of child pornography in the “HP Demo” desktop folder, which appeared to be encrypted or password controlled. In his investigations, Hummel had encountered only one computer with more child pornography than defendant’s computer contained.
C. Charges, Verdicts, and Sentence
Defendant was charged with: rape (Pen. Code, § 261, subd. (a)(2); count 1); sexual battery by restraint (§ 243.4, subd. (a); count 2); unlawful sexual intercourse (§ 261.5, subd. (c); count 3); a lewd act upon a child (§ 288, subd. (c)(1); count 4); misdemeanor possession of child pornography (§ 311.11, subd. (a); count 5); misdemeanor contributing to the delinquency of a minor (§ 272, subd. (a)(2); count 6); and rape by a foreign object (§ 289, subd. (a)(1); count 7). Count 4 (lewd act) was based on the first incident Doe reported, when defendant rubbed her stomach under her clothes; count 6 (contributing to the delinquency of a minor) was based on defendant’s furnishing of marijuana to Doe; count 7 (foreign object penetration) was based on the digital penetration Doe reported to the police, but could not recall at trial.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
The jury convicted defendant of count 1 (rape), count 3 (unlawful intercourse), count 4 (lewd act), and count 5 (child pornography). The jury acquitted him of count 6 (contributing to the delinquency of a minor) and count 7 (foreign object penetration). With respect to count 2 (sexual battery by restraint), the jury convicted him of the lesser included offense of misdemeanor sexual battery (§ 243.4, subd. (e)); the court later dismissed the conviction on this count for insufficient evidence.
Defendant was sentenced to eight years eight months in prison, representing the upper term of eight years for the rape (count 1), plus eight months (one-third the midterm) for the lewd act (count 4); an upper term sentence of three years on count 3 (unlawful intercourse) was stayed pursuant to Penal Code section 654, and a concurrent county jail sentence of six months was imposed on count 5 (child pornography).
II. DISCUSSION
A. Issues Relating to Case No. SC145491
(1) Motion to Sever
(a) General Principles and the Court’s Ruling
Defendant contends that the court erred in denying his motion to sever the trial of the child pornography count from the other charges. Section 954 provides: “An accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts.... [T]he court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately....”
A ruling on a motion to sever is reviewed under a deferential abuse of discretion standard. (See People v. Soper (2009) 45 Cal.4th 759, 774 (Soper).) The ruling will not be reversed unless it exceeded the bounds of reason and the defendant makes a clear showing of prejudice. (Ibid.) “Whether a trial court abused its discretion in denying a motion to sever necessarily depends upon the particular circumstances of each case.” (People v. Marshall (1997) 15 Cal.4th 1, 27.) “Where joinder requirements [citation] are met, the difficulty of showing prejudice from denial of severance is so great that the courts usually reject claims of abuse of discretion.” (5 Witkin, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 395, p. 562.) The factors to be considered are: “ ‘(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.’ ” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220−1221.)
“The trial court’s denial of a motion to sever must be evaluated in light of the facts and circumstances apparent to the court at the time of its ruling.” (People v. Earle (2009) 172 Cal.App.4th 372, 387 (Earle).) However, prejudice must ultimately be assessed in light of what transpired at trial. “ ‘[E]ven if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts... for trial resulted in gross unfairness depriving the defendant of due process of law. [Citations.]’ ” (Soper, supra, 45 Cal.4th at p. 783.)
Defendant argued in the motion to sever that the pornographic “images provided by the prosecution are, in a word, ghastly. They are also prolific in number. If the prosecution is allowed to present this material to the jury during trial of the felony counts there is certain to be an overwhelming amount of loath[ing] and contempt generated which would destroy the possibility of an objectively fair trial.” The prosecution replied that “all of the charges are ‘ghastly’ and involve ‘ghastly’ conduct. Possession of child pornography and rape of a 14-year-old are equally inflammatory crimes.”
The prosecution also asserted that “a large portion of the child pornography [found on defendant’s computer] involves young, teenage, blond girls, similar to the victim in this case. Although a variety of child pornography was found on the defendant’s computer, it is clear that he had a proclivity for young, blond teen or preteen girls.” In support of those assertions, the prosecution submitted exhibits “documenting specific examples of the child pornography photos which have many examples of blond children, specifically teenagers, similar to the blond teenage victim in this case.” Many of the photos described in the exhibits referred to the ages of the minors, and more of the minors were identified as “pre-teens” and “teens, ” than as “under ten” and “pre-pubescent.”
The court cited a number of reasons for denying the severance motion. The court found that the charges “are properly joined under 954 of the Penal Code, and the intent element in the underlying child sexual assault count is essentially the same as that in the possession of child pornography count. There’s certainly some degree of cross-admissibility relating to the defendant’s sexual desires on the present occasion as gleaned from his alleged accumulation of photographs in that regard.” The court also found “under [section] 352, the prejudicial value [of the pornography evidence] is outweighed by the probative value, which I find to be significant.” The court thus denied the motion, but in doing so ruled that no more than 10 (later increased to 15) pornographic images, and five minutes of pornographic video, could be displayed to the jury during the trial.
With respect to cross-admissibility, the court reasoned that “to the extent some of the child pornography photos and/or videos dealt with teens or preteens, that certainly was and is relevant as to the defendant’s mental state, intent, in the child sexual assault counts. [¶] The possession of child pornography involving young children, three-, four-, five-year-olds, carries less relevance when it comes to the child sexual assault of the 14-year-old. There may be some slight relevance in that they’re all children, including the 14-year-old, but they’re of differing ages; and the main relevance comes from those pictures involving the preteens and the teens. [¶] However, since the child pornography count involves both preteens, teens under 18, and young children, it does not make sense to me to sever Count 5 and still hear evidence as to a great deal of that child pornography involving the preteens and teens, and then have to try the case all over again presenting that same evidence, plus the young, young children.”
(b) Cross-Admissibility
“[T]he first consideration in evaluating a motion to sever is ‘cross-admissibility, ’ i.e., the extent to which evidence of charge A would have been admissible in a hypothetical separate trial of charge B, and vice versa.” (Earle, supra, 172 Cal.App.4th at p. 388.) “If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” (Soper, supra, 45 Cal.4th at pp. 774−775.)
Defendant argues that child pornography evidence was not admissible on the sexual assault charges because, contrary to the trial court’s statements, they do not share any common intent element. (See generally Evid. Code, § 1101, subd. (a) [character evidence generally inadmissible to prove conduct on a specific occasion], Evid. Code, § 1101, subd. (b) [criminal conduct admissible “when relevant to prove some fact (such as motive, opportunity, intent...) other than his or her disposition to commit such an act”].) Whereas some of the sexual assault offenses were specific intent crimes requiring a purpose of sexual arousal (see Judicial Council of California Criminal Jury Instructions (2011) CALCRIM Nos. 935 [sexual battery by restraint], 1045 [foreign object penetration], 1112 [lewd act on a child]), no such purpose is involved in possession of child pornography; to be guilty of that offense, the defendant need only knowingly possess the material and know that it depicts a person under age 18 engaging in or simulating sexual conduct (CALCRIM No. 1141). Defendant further submits that his intent was not genuinely at issue in connection with any of the sexual assault charges because, as his counsel put it in closing argument to the jury, “[I]f [defendant] did those things that the prosecution would have you believe he did, obviously, his intent is established. You don’t need any dirty pictures to tell you what the intent is. It’s just a smoke screen to substitute for lack of proof.”
However, defendant’s intent was in fact at issue with respect to the sexual assault offenses that required a specific intent. “[A] fact-like defendant’s intent-generally becomes ‘disputed’ when it is raised by a plea of not guilty or a denial of an allegation. [Citation.] Such a fact remains ‘disputed’ until it is resolved.” (People v. Rowland (1992) 4 Cal.4th 238, 260 (Rowland).) Defendant’s intent was, moreover, “genuinely” disputable with respect to the lewd act charge, which was predicated on Doe’s testimony that he rubbed her stomach under her clothes during the first incident in the bedroom. Defendant’s possession of pornography depicting children like Doe engaging in sexual conduct had a “tendency in reason to prove” that the touching was for the purpose of sexual arousal. (Evid. Code, § 210 [defining relevant evidence].) The evidence was thus admissible even if the offenses were “far from identical.” (Rowland, supra, 4 Cal.4th at p. 260; see also People v. Page (2008) 44 Cal.4th 1, 40 (Page) [possession of sexual images may be probative of the defendant’s intent]; People v. Garelick (2008) 161 Cal.App.4th 1107, 1113−1114 [child pornography on the defendant’s computer admitted as probative of his intent to attempt to commit a lewd act on a child under 14].)
Defendant contends that “[w]hat the court was referring to was not intent at all, but [his] supposed sexual desires and interests, which is just another way of saying his sexual propensity.” But defendant was not prejudiced by any conflation of intent and propensity because, while the trial court did not rely on Evidence Code section 1108, the child pornography evidence was admissible under that statute to prove his disposition to commit the sexual assault offenses. Like the sexual assault offenses, the child pornography offense is among the enumerated sexual offenses (Evid. Code, § 1108, subd. (d)(1)(A)) that are admissible in a sexual offense prosecution notwithstanding Evidence Code section 1101 (Evid. Code, § 1108, subd. (a)). Defendant maintains that it would be “entirely speculative” to infer anything about his sexual desires from his possession of child pornography, but it was reasonable to infer, from his possession of pornography involving children like Doe, that he would have been sexually attracted to her.
In this respect and others, the situation in this case is different from that in Earle, supra, 172 Cal.App.4th 372, which, as defendant notes, involved issues similar to those presented here. In Earle, refusal to sever indecent exposure and sexual assault charges was an abuse of discretion that resulted in a “grossly unfair” trial. (Id. at p. 379.) Earle held that evidence of indecent exposure was not admissible under Evidence Code section 1108 on a sexual assault charge without expert testimony that “commission of indecent exposure rationally supported an inference that the perpetrator has a propensity or predisposition to commit rape.” (Earle, supra, at p. 398.) Unlike the attenuated inference to be drawn in Earle, the proposition here is simply that a pornography collection may be probative of prurient interest-a matter of common sense that would have required no expert support. This aspect of Earle is further distinguished by the expert declaration submitted in support of the severance motion in that case, which stated: “ ‘Exhibitionistic behavior alone cannot be considered indicative of or a precursor to an individual committing an act of rape. In fact, it is more likely exhibitionists will only engage in exhibitionistic behavior rather than to progress to acts of hands-on sexual assault, such as rape.’ ” (Id. at p. 385.)
Defendant contends that his possession of “ten images of blonde females who appear to be teenagers, in a collection of 1, 000 child pornography photographs” cannot be deemed probative of any disposition to sexually assault children like Doe. Ten photographs Deputy Eubanks found when searching for “teen porn” involving blond females who were “possibly” under age 18 were introduced into evidence, but he did not testify that they were the only pornographic images defendant had of children like Doe. In any event, the fact that the prosecution focused more at trial on 79 of the “most egregious” photos than on those of youths who might only have been mistaken for minors does not bear on the propriety of the court’s ruling on the severance motion. As we have indicated, the ruling is judged in light of what was apparent to the court when it was made (Earle, supra, 172 Cal.App.4th at p. 387), and the prosecution had presented evidence that many of defendant’s pornographic photos were of “teens” and “pre-teens” around Doe’s age, rather than younger children.
The trial court thus correctly determined that at least some of the child pornography evidence would be admissible in the trial of the sexual assault charges.
(c) Other Factors
We would find no abuse of discretion even if none of the evidence was cross-admissible. “[T]he absence of cross-admissibility alone [is] not... sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion.” (People v. Geier (2007) 41 Cal.4th 555, 577; see § 954.1.) The pornography and assault counts were joinable as offenses of the same class, namely sexual offenses, and defendant does not argue otherwise. (Pen. Code, § 954; Evid. Code, § 1108, subd. (d)(1)(A).) The other relevant factors-unusually inflammatory charges, and joinder of a strong case with a weak one-do not establish that the court was required to grant the severance motion.
It would not necessarily have been clear to the court, when it heard the motion, that the child pornography case would be substantially stronger than the case on the sexual assaults. Severance was not required, in any event, even if it appeared that the prosecution had a somewhat stronger pornography case. “[A]s between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other.” (Soper, supra, 45 Cal.4th at p. 781.) “The chief source of potential prejudice is ‘spillover effect, ’ i.e., the risk that evidence not admissible as to one of the charges, but admitted in connection with another, will affect the verdict on the charge as to which it is inadmissible.” (Earle, supra, 172 Cal.App.4th at p. 387.) “A mere imbalance in the evidence... will not indicate a risk of prejudicial ‘spillover effect, ’ militating against the benefits of joinder and warranting severance of properly joined charges.” (Soper, supra, at p. 781.)
The child pornography charge, and the evidence introduced to support it, had the potential to be particularly inflammatory. However, sexual assaults of a 14-year-old girl were even more heinous offenses than possession of child pornography, and the court acted to prevent prejudice stemming from the child pornography evidence by limiting the amount of it that could be displayed at trial. The court’s weighing of the probative value of the child pornography evidence against the potential for prejudice cannot be considered entirely unreasonable under the circumstances.
The court was also required to balance the potential prejudice against the considerations of efficiency and judicial economy that make joinder of charged offenses “ ‘the course of action preferred by the law.’ ” (Soper, supra, 45 Cal.4th at p. 772.) The court must “take into account the circumstance that, as a general matter, a single trial of properly joined charges promotes important systemic economies.” (Id. at p. 782.) “Although our courts work diligently to ensure due process in all proceedings, their resources are limited.... [T]he opportunity for joinder with its attendant efficiencies provided by section 954 is integral to the operation of our public court system. Manifestly, severance of properly joined charges denies the state the substantial benefits of efficiency and conservation of resources otherwise afforded by section 954.” (Ibid.)
Therefore, the relevant factors apart from cross-admissibility did not dictate that the severance motion be granted.
(d) Actual Prejudice
The trial record does not establish that defendant was actually prejudiced on the sexual assault charges by the child pornography evidence.
As we look again at the relative strength of the cases-a factor that must inevitably be weighed largely in hindsight in view of what unfolded at trial-the prosecution presented a strong case for possession of child pornography. However, the sexual assault case was not weak. A great deal of evidence peripheral to the issues was introduced on the sexual assault charges, but the case on those charges was ultimately straightforward, and likely persuasive to the jury entirely apart from the pornography evidence. Griffiths may have been viewed as an unreliable witness, and Charlene as a less than ideal mother, but Charlene appeared to have been a conscientious parent insofar as the sexual assaults were concerned, and no substantial grounds were developed for doubting Doe’s veracity. The Earle case again provides a useful contrast. There, the indecent exposure charge was “tacitly conceded, ” and many reasons surfaced for doubting whether the sexual assault victim had correctly identified the defendant as the perpetrator. (Earle, supra, 172 Cal.App.4th at pp. 378−379.)
Moreover, the prosecutor in Earle relied heavily on the defendant’s indecent exposure to overcome weaknesses in the sexual assault case. In closing argument, he “mentioned the indecent exposure at every opportunity, on every conceivable pretext, and for every possible purpose” (Earle, supra, 172 Cal.App.4th at p. 409), “compar[ing it] to DNA evidence and ‘modus operandi, ’ and cit[ing it] as proof that [the] defendant was a ‘predator’ and ‘scary guy’ ” (id. at p. 379). Nothing of the sort occurred here. The prosecutor simply noted in closing argument, consistent with the court’s instructions, that the jury could consider the child pornography evidence in connection with the sexual assault offenses as proof of his intent and motive, but not as proof of his disposition or bad character. She mentioned the subject twice, but did not dwell on it at any length, or emphasize it except to say, “I submit to you [the child pornography is] compelling evidence of his intent in this case.”
The defense devoted more of its closing argument to the cross-admissible evidence than the prosecution, stating among other things that the pornography and assault charges “are really two separate cases that have absolutely nothing to do with each other, ” and that they were “put together because the prosecution knows they’re both inherently weak by themselves, and they want to inflame you and appeal to your emotion and disgust you and revile you so that you won’t scrutinize the weaknesses in their case and the holes in their factual presentation. They want to attack the character of [defendant], overwhelm you with disgust, and use that as a substitute for proof.” As for the photos of minors resembling Doe, defense counsel stated: “[T]he prosecution tells you that there was some photos of blond girls, and that means something. They pick out some photos and dangle them in front of him and say, ‘Doesn’t this look like [Doe]?’ He said, ‘Well, there’s one blond in there.’ Out of supposedly... thousands of photographs and dozens of videos they pick out a couple and say, ‘Doesn’t this look like [Doe]?’ That is nothing but pure innuendo.”
The child pornography evidence evidently did not inflame the jury, despite its potential to do so. To the contrary, the jury acquitted defendant of three of the seven charges, and convicted him of only a lesser included offense to one of those three. Defendant’s case is similar in this regard to People v. Stewart (1985) 165 Cal.App.3d 1050, 1056−1057 (Stewart), where denial of a severance motion was upheld in part because the verdicts showed that there had been no “spillover effect.” The jury in Stewart acquitted the defendant of a murder charge, convicted him of lesser included offenses to two other counts, and thus “zealously adhered to the trial court’s instruction that each of the counts charged represented a distinct offense and that each count must be decided separately.” (Id. at p. 1056.) The concern “that the jury would aggregate all the evidence, presented separately in relation to each charge, and convict defendant on all the charges in a consolidated trial, simply did not materialize here.... The jury clearly resisted any tendency to believe the defendant guilty of one or another charge merely because he was ‘a likely person to do such acts.’ ” (Id. at p. 1057.)
Defendant’s jury was instructed pursuant to CALCRIM No. 3515 that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.”
Defendant received a fair trial and was not deprived of due process by virtue of the court’s refusal to sever the charges.
(2) Erroneous Admission of Some Child Pornography Evidence
Defendant notes that the limiting instructions on use of the child pornography evidence in connection with the sexual assault allegations did not distinguish between images and videos of children of Doe’s age and those of much younger children, which the trial court believed had only “slight relevance” to the assault charges. All of the child pornography evidence was thus effectively admitted to prove intent and motive in the alleged assaults.
Defendant argues that all of the child pornography evidence should have been excluded as to the assault charges under Evidence Code section 352 as more prejudicial than probative. We disagree with defendant insofar as the pornography involved children like Doe, but will assume for purposes of this opinion that he is correct with respect to the pornography involving much younger children, which had the potential to be particularly inflammatory and which in the trial court’s own estimation had little probative value.
However, it is not reasonably probable that the result would have been different if the evidence had been excluded. (See Page, supra, 44 Cal.4th at pp. 41−42, applying People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) As explained in the preceding section, we find no indication that defendant was prejudiced by the jury’s consideration of the child pornography evidence in connection with the sexual assault charges. Accordingly, the evidentiary error provides no grounds to reverse. (Evid. Code, § 353, subd. (b) [erroneous admission of evidence must produce a miscarriage of justice].)
(3) Judicial Notice
Defendant contends that the court erred in taking judicial notice, and informing the jury, of the fact that Debbie Martinez had been called by attorney Anthony to testify as a witness for defendant in case No. SC143287.
The prosecution requested the taking of judicial notice, on the day before the case was submitted to the jury, to rebut defendant’s testimony that Debbie had previously testified as “the prosecution’s witness” in a case against him. Defendant objected that his testimony had not related to case No. SC143287, but rather to a Sonoma County proceeding in which Debbie obtained a restraining order against him. The court expressed doubt that defendant’s testimony had referred to case No. SC143287, but agreed to take judicial notice as requested, stating that it would revisit the issue at the close of evidence to give defense counsel time to look into grounds for an objection. There was no further discussion of the point, and after the parties rested later that day, the court told the jury: “Deborah Martinez testified in a separate matter regarding the defendant, and in that matter she was called as a witness by the defense, specifically, by Attorney Michael Anthony.”
The prosecutor was in fact mistaken about the nature of defendant’s testimony; the transcript shows that when he mentioned Debbie having testified for the prosecution, he was being questioned regarding “the trial about the restraining orders.” It is thus clear from the record that the testimony concerned the restraining order case, not case No. SC143287. Defendant is therefore correct that the court erred in taking judicial notice of an irrelevant matter. The error, however, was not prejudicial.
Defendant was being cross-examined at the time about lying to the police about stalking Debbie: “Q. Did you tell any police officers on the phone before you were arrested that you were in San Francisco? A. I don’t remember. I might have because that’s probably-I was trying to get Debbie back, so I was pursing her. Q. And when you told that officer you were in San Francisco, you were, in fact, in Sonoma County pursuing Ms. Martinez? A. I never said I was in San Francisco. I am just assuming that you’re telling the truth and that I did. I don’t remember that at all, no, but I was, yes, pursuing Ms. Martinez. Q. You were a little out of control, to say the least, with your behavior? A. I was in love. And it worked. We’re engaged. Q. And she came to court and testified on your behalf in the trial about the restraining orders, didn’t she? A. On my behalf? She testified. She was the prosecution’s witness. I don’t think that’s my behalf. She was their witness. Q. Ms. Martinez? A. Ms. Martinez was a prosecution witness, yes.... Q. How many times during the times when you violated the restraining order did you lie to the police? A. I have no idea. She violated, too.”
Defendant contends that the evidence was used in closing argument to impugn his and Debbie’s credibility, but the prosecutor made no mention of Debbie’s prior testimony on defendant’s behalf. The prosecutor attacked Debbie’s credibility based on Debbie’s admitted perjury on her restraining order application, not on her prior testimony for defendant. Defendant argues that the reference to Debbie’s prior testimony enabled the prosecution to falsely claim that he had suborned perjury in this case. The prosecutor ventured, in discussing defendant’s contacts with the police when he was stalking Debbie, that he would do anything to get what he wanted, including “having witnesses commit perjury.” But the jury knew that defendant and Debbie were engaged, and heard that both had lied to police in connection with the restraining order. In view of that testimony, the prosecution did not need evidence that Debbie had previously testified for defendant in order to suggest that she might, at his urging, be testifying falsely for him in this case.
Debbie apparently became amused during her cross-examination when the prosecutor asked her to read an excerpt from the application: “Q. Read for me what that says. A. ‘I fear for my life. [Defendant] said if I don’t get a restraining order, he will take me out... and anyone around me. I have this on a message. He came to my house on 6/11 and tried to break in. Called police. He has made numerous comments that he’d kill my cats.’ Q. Is there something funny? A. Yeah, I think the whole thing is funny because this isn’t true. Q. Because you submitted a document under penalty of perjury that you now find humorous. A. If you want to call it penalty of perjury, then that’s what I did.”
“I want to remind you, ” the prosecutor said, “when I asked him about the many times he was contacted by police officers during those summer months when he was violating the restraining orders-I asked him, ‘How many times do you think you lied to a police officer?’ And he said, ‘I don’t know.’ But then he sat back, and he quite proudly said, ‘But it worked. We’re engaged.’ [¶] I hope you all took note of that, because I did, and I think it spoke volumes as to how he lives his life. Whatever it takes to get what you want, whether it’s lying, cheating, stealing, raping, having witnesses commit perjury, thinking it’s a joke in a serious case such as this. If it works, he’s going to try it.”
Therefore, it is not reasonably probable that the judicial notice taken of Debbie’s prior testimony had any effect on the outcome of the case. (Watson, supra, 46 Cal.2d at p. 836.)
B. Issues Relating to Case No. SC143287
(1) Violation of Section 12316
Defendant argues that he was wrongly convicted in case No. SC143287 of violating section 12316, subdivision (b)(1), based on his possession of ammunition while subject to a family law protective order. When officers executed the search warrant on defendant’s residence on July 23, 2005 and seized his computer, they also found a number of guns and large quantities of ammunition. Defendant does not dispute having possessed ammunition when he was subject to a family court protective order, but argues, as a matter of statutory construction, that he could not be found to have violated section 12316, subdivision (b)(1).
Section 12316, subdivision (b)(1) provides: “No person prohibited from owning or possessing a firearm under Section 12021... of this code... shall... possess... any ammunition....” Section 12021, subdivision (g)(2) provides: “Every person who owns or possesses a firearm knowing that he or she is prohibited from doing so by... a protective order as defined in Section 6218 of the Family Code... is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year....” Defendant reasons that section 12021, subdivision (g)(2) did not prohibit him from possessing a firearm within the meaning of section 12316, subdivision (b)(1), because section 12021, subdivision (g)(2) merely specifies the punishment for firearm possession that is prohibited by another statute, namely, Family Code section 6389, subdivision (a). Family Code section 6389, subdivision (a) provides: “A person subject to a protective order, as defined in Section 6218, shall not... possess... a firearm while that protective order is in effect. Every person who... possesses... a firearm while the protective order is in effect is punishable pursuant to subdivision (g) of Section 12021 of the Penal Code.”
Defendant was required to advance this argument in the prior appeal in case No. SC143287. The doctrine of res judicata “effectively preclude[s] the relitigation of issues that were or could have been decided in the first appeal.” (People v. Wycoff (2008) 164 Cal.App.4th 410, 415; see also People v. Joseph (1957) 153 Cal.App.2d 548, 551 [res judicata prevents relitigation of issues determined by a final judgment in a prior action between the same parties].) A defendant granted probation who takes a second appeal after probation is revoked and sentence is imposed cannot obtain review of matters arising prior to pronouncement of the initial judgment. (People v. Glasser (1965) 238 Cal.App.2d 819, 821.) We therefore reject defendant’s belated challenge to his conviction under section 12316, subdivision (b)(1).
(2) Section 654
Defendant was sentenced to a consecutive term of eight months for possessing ammunition in violation of section 12316, subdivision (b)(1), and a concurrent term of two years for possessing firearms in violation of section 12021, subdivision (g)(2). Defendant contends that he could not be sentenced for both violations under section 654, which prohibits multiple punishment for a single act or an indivisible course of conduct with a single objective. (People v. Coleman (1989) 48 Cal.3d 112, 162.) We declined to reach this argument when it was advanced in the prior appeal, finding it premature before the imposition of sentence, but noted that defendant could raise it if sentence was later imposed. We thus address it now.
Defendant’s section 654 argument is based on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), where a handgun, with a bullet in the chamber and bullets in the magazine, was found in the defendant’s pocket. The defendant was sentenced to prison for unlawful possession of a firearm, and received a concurrent term for unlawful possession of ammunition. The court held that the concurrent sentence for possession of ammunition had to be stayed pursuant to section 654. The court wrote: “While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and section 654 precludes multiple punishment.” (Lopez, supra, at p. 138.)
This case is distinguishable from Lopez, where the defendant’s “obvious intent was to possess a loaded firearm.” (Lopez, supra, 119 Cal.App.4th at p. 138.) The police found far more than a single loaded gun in defendant’s house. They found over sixteen hundred rounds of ammunition in addition to ten loaded and unloaded magazines, five rifles, two shotguns, and three handguns. The evidence thus disclosed an intent to reload multiple firearms multiple times, an objective beyond mere possession of a loaded firearm. “[T]he purpose of section 654 ‘is to insure that a defendant’s punishment will be commensurate with his culpability.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Defendant’s weapons offenses were far more serious than those of the defendant in Lopez and could be punished as such.
C. Sentencing Mistake and Errors in the Abstract of Judgment
The two-year-concurrent sentence defendant received for firearm possession was erroneous; the maximum term under section 12021, subdivision (g)(2) is one year in county jail. The error can be corrected at this time. (See People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence is one that could not lawfully be imposed under any circumstances in the particular case]; People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7 [an unauthorized sentence is subjected to judicial correction whenever it comes to the attention of the reviewing court]). Defendant asks that we remand the case for resentencing in light of that mistake, but resentencing is not required when we can use our power to modify the judgment to effectuate the trial court’s apparent intent. (People v. Chacon (1995) 37 Cal.App.4th 52, 67.) We will do so in this instance, and modify the concurrent sentence on the firearm possession count to one year in county jail.
In addition, two errors in the abstract of judgment need to be corrected: the sentence for the lewd act on a child should be shown as eight months, rather than eight years; and the total sentence should be shown as 17 years, not 17 years and four months.
As previously indicated, the aggregate state prison term in case No. SC145491 is eight years eight months. The aggregate term in case No. SC143287 is eight years four months, consisting of consecutive terms of: three years for possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a); count 4); eight months for ammunition possession (Pen. Code, § 12316, subd. (b)(1); count 3); eight months for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 6), and two years each for two on-bail enhancements (Pen. Code, § 12022.1, subd. (b)).
III. DISPOSITION
The judgment is modified to impose a concurrent sentence of one year in county jail for illegal possession of firearms (§ 12021, subd. (g)(2)). As so modified, the judgment is affirmed. The trial court is directed to prepare and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation, which reflects the modification, lists an eight-month sentence on the lewd act count (§ 288, subd. (c)(1)), and shows an aggregate state prison sentence term of 17 years.
We concur: MARGULIES, J., DONDERO, J.