Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF129593, Darryl B. Ferguson, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Jose Ignacio Hernandez was convicted by jury trial of child molestation and failure to register as a sex offender. On appeal, he contends (1) his jury trial was barred by the guarantee against double jeopardy; (2) the trial court erred by refusing to strike his prior conviction; (3) the trial court erred when it ruled that the abstract of judgment and other documents supporting his prior conviction (the “969b package”) could be reconstructed because there was no substantial evidence the proffered documents were identical copies of the lost originals; (4) insufficient evidence supported the trial court’s finding that defendant suffered the prior conviction; (5) the trial court erred by allowing witnesses to testify about the details of a “fresh complaint”; (6) the trial court improperly instructed the jury regarding the fresh complaint evidence; (7) the trial court erred when it allowed the nurse examiner to testify regarding the victim’s statements and whether the victim’s injuries were consistent with those statements; (8) the prosecutor committed misconduct during argument; (9) the trial court committed Cunningham error when it imposed the upper term; and (10) the trial court erred by relying on an improper aggravating factor to impose the upper term. Finding no merit in these contentions, we affirm the judgment.
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
PROCEDURAL SUMMARY
The history of defendant’s case is complicated. He originally pled no contest, the trial court dismissed his prior “strike” conviction and sentenced him to six years in prison (Case 1). The People, however, appealed the trial court’s dismissal of the prior conviction (Appeal 1). We reversed and remanded. Defendant then chose to withdraw his plea and proceed with a jury trial, which resulted in guilty verdicts and a 62-year-to-life prison sentence (Case 2). Defendant now appeals from that judgment (Appeal 2). A more detailed summary follows.
We take judicial notice of Case 1 and Appeal 1, including the record on appeal (F047634).
Case 1
On October 6, 2004, defendant was charged with molestation of a child under 14 years (Pen. Code, § 288, subd. (a); count 1) and failing to register as a sex offender (§ 290; count 2). In connection with both counts, it was alleged that defendant had suffered a prior strike conviction (§ 1170.12, subd. (c)(1)) in 1998 for a violation of section 288. Various other special allegations were also charged.
All statutory references are to the Penal Code unless otherwise noted.
On February 1, 2005, the trial court entertained motions in limine and indicated a sentence of 30 years. Defendant chose to proceed to trial.
On February 2, 2005, jury selection and opening statements took place. Before the first witness was sworn, defense counsel moved to strike the prior conviction on the ground that the conviction was constitutionally invalid because “the waiver forms[] and minute notes [did] not indicate that defendant waived his fundamental constitutional rights.”
On February 3, 2005, the trial court granted defendant’s motion to strike the prior conviction. Defendant changed his plea to no contest in exchange for dismissal of count 2 and a six-year term. On February 25, 2005, the prosecution filed a motion to reconsider striking the prior conviction. On March 3, 2005, the court denied the motion to reconsider and sentenced defendant to six years.
Appeal 1 (By the People)
On March 14, 2005, the People filed notice of appeal from the trial court’s striking of the prior conviction. We reversed and remanded. Remittitur issued on January 30, 2006.
Case 2
Back in the trial court on March 22, 2006, the court informed defendant that this court had reversed the striking of the prior conviction. Defense counsel advised the trial court that defendant had been unrepresented during the appeal and counsel requested a continuance to “file the appropriate writ with the Fifth.” The court granted a two-week continuance.
The following then occurred:
“[PROSECUTOR]: Your Honor, People have a request. We believe that part of [Defense] Counsel’s complaint with regard to the appeal is that the defendant didn’t have -- didn’t understand what was going on because he needed an interpreter. The People would like to inquire if the Court thinks he may need an interpreter today.
“[DEFENSE COUNSEL]: No, that’s not the issue at all.
“THE COURT: That’s never been the issue.
“[DEFENSE COUNSEL]: I’m sorry. Just so we’re all clear, I’ll put it on the record, and, by the way, your office has previously represented that you didn’t feel comfortable with my client not having been represented with the Fifth. All of the paperwork from CCAP to my client inquires if he wants to appeal. He did not want to appeal. He was never advised that some other party had appealed and that he wanted to be represented as a respondent. So he’s being queried, ‘Do you want to appeal?’ And he says, ‘No.’
“THE COURT: All right. Let’s just go forward with the paperwork and take care of the writ and see you in two weeks.”
At the next hearing, on April 5, 2006, defendant decided to withdraw his plea and proceed to trial. Defense counsel stated: “At this point in time, it looks like my client has no option but to withdraw his previously entered plea and ask that this matter be set for jury trial.” The court set trial for May 23, 2006.
At the motions in limine hearing on May 22, 2006, when the trial court mentioned the writ, defense counsel stated: “Actually, your Honor, I misspoke when I made that representation to the Court. My office does not get involved with appellate matters. CCAP is going to have to do it.”
Jury trial began on May 23, 2006, and on May 26, 2006, the jury convicted defendant of child molestation. He pled no contest to failing to register as a sex offender. The court found the prior conviction true and sentenced defendant to 50 years to life for child molestation, plus a one-year enhancement and a five-year enhancement, and six years for failing to register as a sex offender.
Appeal 2 (By Defendant)
On July 25, 2006, defendant filed a notice of appeal. On December 10, 2007, defendant filed his opening brief.
Motion to Recall Remittitur
On July 9, 2008, defendant filed with this court a motion to recall the remittitur on the ground that he was unrepresented by counsel during Appeal 1. He maintains he did not have appointed counsel, did not waive counsel and did not elect to proceed in propria persona.
On November 5, 2008, we denied that motion, having concluded defendant waived his right to counsel on appeal.
FACTS
M.J. testified that defendant, a family friend, molested her when she was seven years old. While he was working on a car, he pushed her into the car and told her to push the gas pedal. Defendant’s hands were greasy. He approached her, lifted her dress and touched her vaginal area and inserted his fingers into her vagina.
M.J. told her sister, who then told their mother. M.J. also later told their mother what had happened. Both M.J.’s sister and mother testified.
A nurse examiner testified that M.J.’s injuries were consistent with her statement describing the molestation.
Two other victims, L.R. and S.L., testified defendant had molested them when they were younger.
Defense Evidence
Defendant testified on his own behalf. He denied molesting M.J., L.R. and S.L. He admitted he pled no contest and was convicted for molesting L.R. in 1998, but explained that he did so to minimize his prison time.
DISCUSSION
I. Double Jeopardy
Defendant contends his jury trial in Case 2 was barred by the guarantee against double jeopardy because his guilty plea in Case 1 effectively placed him in jeopardy. We disagree.
The double jeopardy clause guarantees that criminal defendants shall not “be twice put in jeopardy of life or limb” for the “same offence.” (U.S. Const. 5th Amend.) A defendant may raise a double jeopardy claim only if he has been put in jeopardy (jeopardy has “attached”) sometime before the alleged “second” prosecution. (See, e.g., Crist v. Bretz (1978) 437 U.S. 28, 32-33). It is undisputed that jeopardy attaches when a jury is empaneled. (Id. at p. 36.) Here, because defendant entered into his plea agreement with the prosecution after the jury had been empaneled in his first trial, jeopardy had attached.
However, several federal Courts of Appeals have held that double jeopardy does not bar the trial of a defendant who withdraws his guilty plea even though that plea was entered after trial began. (United States v. Podde (2nd Cir. 1997) 105 F.3d 813, 816-817; Taylor v. Kincheloe (9th Cir. 1990) 920 F.2d 599, 604-606; United States v. Baggett (11th Cir. 1990) 901 F.2d 1546, 1549; Fransaw v. Lynaugh (5th Cir. 1987) 810 F.2d 518, 525-526.) “[A] defendant should not be able to reject a plea bargain and then erect the shield of double jeopardy to the revived counts. This concern for fairness (and for the integrity of the plea bargaining process) is equally compelling when the plea is entered and abandoned after trial begins.” (Fransaw v. Lynaugh, supra, at p. 526.)
“The [United States] Supreme Court has stated that ‘the conclusion that jeopardy has attached begins, rather than ends, the inquiry .…’ [Citations.] This fact, that the attachment of jeopardy does not end the inquiry, is clearly demonstrated by the familiar rule that the double jeopardy clause ‘imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.’ [Citations.] [¶] … [¶] [W]hen a defendant successfully seeks a reversal of his conviction, society’s interest in punishing him, if guilty, outweighs the fact that he will be put in jeopardy again on retrial. [Citation.] [¶] Similar reasoning underlies the Supreme Court’s sanction of retrials following mistrials requested by defendants or mandated by ‘manifest necessity,’ such as a hung jury. [Citations.] For example, with regard to ‘manifest necessity’ mistrials, the Supreme Court has noted that, were retrial barred, this would be ‘an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.’ [Citation.] In such cases, society’s interest in protection from the guilty is greater than the accused’s interest in avoiding retrial. [Citation.]” (Fransaw v. Lynaugh, supra, 810 F.2d at pp. 527-528, fn. omitted.)
California law mandates the same result. “Familiar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored. When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into. [Citation.]” (People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258; see also People v. Bean (1989) 213 Cal.App.3d 639, 646 [“[h]aving successfully overturned his [plea] bargain, defendant will be placed in the position he faced prior to any plea bargain or plea”].)
The outcome is no different where, as here, the defendant enters his plea after a jury has been sworn. Such a plea implies consent to the discharge of the jury. (See People v. Ramirez (1972) 27 Cal.App.3d 660, 670 [defendant may impliedly consent to discharge of jury].) A defendant’s consent to the discharge of the jury waives the claim of once in jeopardy. (People v. Franklin (1976) 56 Cal.App.3d 18, 23 and cases cited therein [context of mistrial].)
“The numerous cases that consider this issue ‘hold with apparent unanimity that when [the] defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy ... obstacle to restoring the relationship between defendant and state as it existed prior to the defunct bargain.’ [Citation.] … Anything else would give rise to intolerable manipulation and gamesmanship on the part of defendants. [Citation.]” (United States v. Podde, supra, 105 F.3d at p. 817.)
We agree with the conclusion in Fransaw v. Lynaugh: “[Defendant’s] withdrawal of his guilty plea is analogous to these situations. Like the defendant who abandons the possibility of acquittal in the first proceeding by requesting a mistrial, [defendant] voluntarily surrendered the plea bargain’s refuge against prosecution …. Crist v. Bretz[, supra, 437 U.S. 28] emphasizes that jeopardy attaches when a jury is empaneled because of ‘the need to protect the interest of the accused in retaining a chosen jury.’ [Citation.] But [defendant] sought out the state after appearing before his chosen jurors and entered an arrangement designed to insulate him from what he feared would be their unfavorable reaction to his case. [T]he double jeopardy clause guards against the harassment, embarrassment, expense, and increasing odds of conviction that accompany repeated prosecutions. Here, however, this burden was voluntarily shouldered by [defendant]. In sum, relevant precedent not only fails to require the rule proposed by [defendant], it clearly points to the opposite conclusion.” (Fransaw v. Lynaugh, supra, 810 F.2d at p. 528, fn. omitted.)
It is of no moment that defendant felt he “had no choice” but to withdraw his plea. “Whatever the defendant’s motivation for pleading guilty and for withdrawing his plea, his voluntary choice to do so releases the government from its obligation not to prosecute and there is no double jeopardy bar to retrying him on the [original] charges ….” (United States v. Podde, supra, 105 F.3d at p. 818, fn. omitted.) “[T]he Double Jeopardy Clause ... does not relieve a defendant from the consequences of his voluntary choice.” (United States v. Scott (1978) 437 U.S. 82, 99.)
Furthermore, “the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the noncapital sentencing context.” (Monge v. California (1998) 524 U.S. 721, 734; People v. Monge (1997) 16 Cal.4th 826, 845; People v. Barragan (2004) 32 Cal.4th 236, 239, 243-259 [an appellate ruling reversing a finding of a prior conviction on the ground of insufficient evidence does not bar retrial of the prior conviction allegation].)
Defendant suggests in his reply brief that the People lacked the statutory right to appeal under section 1238, subdivision (a)(8). (People v. Chacon (2007) 40 Cal.4th 558, 564 [prosecution’s right to appeal in a criminal case is strictly limited by statute; permissible circumstances listed in § 1238].) He is incorrect.
II. Refusal to Strike the Prior Conviction
Defendant asserts that the trial court in Case 2 erred in refusing to strike the prior conviction because during Appeal 1 (in which we reversed the trial court’s earlier striking of that prior conviction in Case 1) defendant was denied the right to counsel and did not validly waive counsel. Defendant contends that in light of his deprivation of counsel, the doctrine of the law of the case does not apply because its application would result in an unjust decision, and collateral estoppel does not apply because he lacked an opportunity to fully and fairly litigate the issue. Thus, he maintains, the trial court abused its discretion when it followed our opinion and declined to reconsider striking his prior conviction.
Defendant’s claim must fail because it is predicated on the contention that our appeal was invalid due to the denial of defendant’s right to counsel on appeal. Defendant properly raised this issue in a motion to recall the remittitur, which contended that he had not waived his right to appellate counsel and that this court operated under the mistaken belief that he had. We determined defendant had waived his right to counsel and we denied the motion. Accordingly, the present issue has no merit.
III. Abstract of Judgment and 969b Package
In preparation for the present appeal, it was discovered that documents considered by the trial court in Case 2 as evidence to establish the prior conviction had been lost or destroyed. New documents were proffered to reconstruct the record for our review and the trial court determined the record was substantially reconstructed.
The reconstructed record includes a chronological and movement history, an abstract of judgment, fingerprint cards and a photograph. They are attached to a 2004 Department of Corrections letter to the district attorney. The reconstructed record also includes the district attorney’s 2004 request for a 969b package, which included defendant’s name, prisoner number, date of birth and pending court date.
Defendant contends the trial court’s ruling that the record was reconstructed was error because there was no substantial evidence the proffered documents were identical copies of the lost documents. Defendant claims he has been denied due process of law and the appellate record is inadequate for meaningful review of the prior conviction. He requests that his sentence be reduced to the statutory midterm of six years.
“A defendant in a criminal case is entitled to an appellate record adequate to permit ‘meaningful appellate review.’ [Citations.]” (People v. Seaton (2001) 26 Cal.4th 598, 699; People v. Harris (2008) 43 Cal.4th 1269, 1280 [state law entitles a defendant only to an appellate record adequate to permit him to argue the points raised on appeal; federal constitutional requirements are similar].) “‘The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.’ [Citation.]” (People v. Seaton, supra, at p. 699.)
Reconstruction of lost parts of the original trial record is an accepted mechanism that permits meaningful appellate review and avoids automatic reversal. (See People v. Osband (1996)13 Cal.4th 622, 663.) For example, in People v. Coley (1997) 52 Cal.App.4th 964, a defendant found to have prior convictions contended he was entitled to reversal because the documentation supporting the allegations of prior conviction had been lost. The Court of Appeal rejected this contention as follows: “Criminal defendants are entitled to due process, not perfect process. [Citation.] Thus, an imperfect representation of the exhibits is not grounds for reversal unless it is reasonably probable the outcome is affected by the deficiencies in the record.... [¶] While the defendant is entitled to a record adequate to afford a meaningful appeal, he bears the burden to show the deficiencies in the record are prejudicial. [Citation.] That burden is not carried by simply citing an administrative dereliction. Lost exhibits may be reconstructed in many instances. [Citation.] If they can be reconstructed, the appellate court can review them as if they had not been lost, with no resulting prejudice to the defendant. As models or replicas are admissible in the absence of an actual piece of evidence to assist the jury, reconstructed exhibits similarly assist the appellate court. [Citation.] Consequently, it would be a violation of the constitutional requirement that we not reverse a conviction absent prejudice if we were to reverse a conviction because the exhibits were lost when no attempt has been made to reconstruct them. [Citation.] The test is whether the exhibits can be reconstructed sufficiently to determine there was no prejudicial error at trial.” (People v. Coley, supra, at pp. 969-970, citing People v. Osband, supra, 13 Cal.4th 622; People v. Harris, supra, 43 Cal.4th at p. 1280 [defendant has burden of showing record is inadequate to permit meaningful appellate review].)
“We review the court’s findings regarding the reconstruction of the missing exhibits, which are essentially factual, on a deferential substantial evidence standard. [Citation.] We then independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully.” (People v. Osband, supra, 13 Cal.4th at p. 662.)
Here, we first observe that defendant testified at trial in Case 2 that he suffered the prior conviction and served a prison term for it. Later, at the bifurcated trial on the prior conviction, the trial court noted: “The defendant on the stand has admitted his prior conviction before the jury. That testimony is admissible in this trial.” The court examined a July 14, 1998 minute order and stated:
“The sentencing was on August 10th. And the date on the change of plea form was July 14, 1998.”
The prosecutor then offered a certified copy of the abstract of judgment of the prior conviction and a certified copy of the 969b package from the Department of Corrections. The court stated:
“It appears that Exhibit 21 is a copy of the abstract of judgment from 1998, April 7th of 1998. The sentencing was on August 10th. It looks like prosecution was filed on April 7th of ’98. The date of sentence was August the 10th of 1998. This is in Case Number 40885.”
The court identified the 969b package as exhibit 14. The court found the prior conviction allegation true.
Although the reconstructed record appears to be missing some documents to which the trial court referred in Case 2, we believe we have located at least some of those documents in the supplemental record filed in Appeal 1 (F047634), of which we take judicial notice. That record includes defendant’s 1998 plea agreement, a July 14, 1998 minute order, an August 10, 1998 minute order, a 1998 disposition of arrest and court action, and a 1998 abstract of judgment. In light of the availability of these additional documents for our review, there is no issue regarding the adequacy of the record for review. Nevertheless, we briefly address some of defendant’s claims.
Defendant complains that the abstract of judgment submitted as part of the reconstructed record is not the original because it does not mention April 7, 1998, or the prosecution start date, as the court recited. In addition, the case number on the abstract is 98-40885, not 40885 as the court recited. Furthermore, the abstract states the defendant’s name as “Ignacio Elorza Hernandez,” whereas “the prosecutor proceeded against ‘Jose Ignacio Elorza Hernandez.’” Thus, defendant argues, “while the sentencing date is the same date, the discrepancies indicate that the court was observing a different document.”
As for the name discrepancy, we point out that defendant has utilized, or at least acquiesced to the use of, a variety of names. When defendant pled no contest to the prior conviction, he wrote his “true name” as “Ignacio Hernandez.” A 2004 Department of Corrections document referred to him as “Hernandez, Ignacio, Elorza.” The information in Case 1 identified him as “Jose Ignacio Elorza Hernandez.” At the trial in Case 2, defense counsel called “Ignacio Hernandez” as a witness. When defense counsel asked defendant to state his name, he said, “Jose Ignacio Hernandez.” The trial minute orders refer to him as either “Hernandez, Jose” or “Hernandez, Jose Ignacio Elorza.” Defendant has fabricated an issue where he knows there is none.
We agree that the abstract of judgment does not bear the date of April 7, 1998, but defendant fails to refer to the entire quote of the trial court, in which it is obvious the court initially misspoke, then corrected itself: “It looks like prosecution was filed on April 7th of ‘98” (Italics added.) Thus the court was referring not to the date of the abstract of judgment, but to the date the prosecution was filed. We believe the court was referring to a document entitled “DISPOSITION OF ARREST AND COURT ACTION,” which includes the April 7, 1998 date of prosecution and is part of the record in Appeal 1.
The date of sentencing on the abstract is the same as that recited by the court and the case number on the abstract (98-40885) differs from the one recited by the court (40885) only by the prefix 98. Some documents, including defendant’s plea form, state the case number as 40885.
Substantial evidence supports the trial court’s conclusion that the submitted abstract of judgment was the same document (or a copy of the document) submitted at the trial.
Defendant also complains that the reconstructed 969b packet contains discrepancies compared to the trial court’s recitation:
“He was sentenced on August 10, 1998. And the 969-B package states that he was released on August 24th, paroled to U.S. Immigration and Naturalization Service on October 24, 2003.”
The proffered documents establish defendant was discharged on October 24, 2003, although they do not state that he was paroled to the Immigration and Naturalization Service on that date. We find this omission entirely inconsequential.
It is perfectly clear that the reconstructed documents refer to defendant and his prior conviction, which occurred on July 14, 1998. Substantial evidence supports the trial court’s conclusion that the record was sufficiently reconstructed. Furthermore, the reconstructed record is amply corroborated by the extensive record of the prior conviction filed as part of the record in Appeal 1. We can readily determine there was no prejudicial error at trial in Case 2. Any discrepancies in these documents are harmless, particularly in light of defendant’s own admission of the prior conviction.
Having so concluded, we also reject defendant’s related claim that insufficient evidence supported the finding that he suffered the prior conviction because the reconstructed documents are inadequate.
IV. Fresh Complaint
Defendant argues that although the testimony of M.J.’s sister and mother was admissible to establish that M.J. had made a complaint, the portion of their testimony recounting the details of the molestation was inadmissible hearsay. Defendant also asserts the trial court should have provided a sua sponte limiting instruction.
During the prosecutor’s direct examination of M.J.’s thirteen-year-old sister, the following occurred:
In these passages, we quote verbatim without correcting or noting errors in usage or grammar.
“[THE PROSECUTOR:] Now, you said a few minutes ago that your younger sister was hurt by the defendant. Was there one evening that she came to you crying?
“[M.J.’S SISTER:] Yes. I was in my -- [¶] … [¶]
“[THE PROSECUTOR:] Did your sister tell you why she was crying?
“[M.J.’S SISTER:] Yes.
“[THE PROSECUTOR:] What did she tell you?
“[M.J.’S SISTER:] She was
“[DEFENSE COUNSEL]: Objection, calls for speculation.
“THE COURT: Overruled. Fresh complaint.
“[M.J.’S SISTER]: She went to me crying and she said that she didn’t really wanted … to tell me, but I beg her to tell me what had happened because she was just crying. She was, like, in the floor scratching herself, pulling her hair, and I asked her a lot of time what had happened, and she told me that, like, he had got her in the car and that he had touched her, put his finger inside her private part.
“[THE PROSECUTOR:] After she told you that, what did you do?
“[M.J.’S SISTER:] Because she didn’t want me to tell my mom because she was scared. And I told her that I needed to tell her, and she said no that she didn’t want me. If I was her sister, I should do what she said. And I told her no, that I needed to tell my mom. I went outside to look for my mom and I tell her. That’s what had happened.
“[THE PROSECUTOR]: That’s all the People have, your Honor.”
Following defense counsel’s cross-examination of M.J.’s sister, the prosecutor questioned M.J.’s mother as follows:
“[THE PROSECUTOR:] Two years ago, did your daughter come to you and explain an event that happened with [defendant]?
“[M.J.’S MOTHER:] It was my [other] daughter. It was [M.J.’s sister].
“[THE PROSECUTOR:] Did your other daughter, [M.J.], come to you and explain an event that happened between her and the defendant?
“[M.J.’S MOTHER:] Yes. [¶] … [¶]
“[THE PROSECUTOR:] When [M.J.] came to you, how was she acting?
“[M.J.’S MOTHER:] Crying, very scared.
“[THE PROSECUTOR:] This event that she told you about, did she state whether it had just happened or not?
“[M.J.’S MOTHER:] Yes. Yes.
“[THE PROSECUTOR:] Was [M.J.’s sister] with her?
“[M.J.’S MOTHER:] Yes.
“[THE PROSECUTOR:] How was [M.J.’s sister] acting?
“[M.J.’S MOTHER:] Very angry.
“[THE PROSECUTOR:] What did [M.J.] tell you happened?
“[M.J.’S MOTHER:] The one that told me was [M.J.’s sister].
“[THE PROSECUTOR:] Did [M.J.] tell you anything that happened to her?
“[M.J.’S MOTHER:] No. [M.J.’s sister] was the one that told me. She did not want to tell me. She did not want to tell me. [¶] … [¶]
“[DEFENSE COUNSEL]: Excuse me, your Honor, I’m going to object to the last answer as being hearsay.
“THE COURT: That’s not hearsay. She didn’t want to tell her. That’s not hearsay.
“[DEFENSE COUNSEL]: Speculation.
“THE COURT: Overruled. Overruled. [¶] … [¶]
“[THE PROSECUTOR:] Did [M.J.] eventually tell you what happened to her?
“[M.J.’S MOTHER:] Afterwards. [¶] … [¶]
“[THE PROSECUTOR:] Based on what [M.J.’s sister] told you, what did you do?
“[M.J.’S MOTHER:] I went to tell my husband and I told him that we had to go and notify the police. [¶] … [¶]
“[THE PROSECUTOR:] Did [M.J.], that evening, tell you what the defendant had done to her?
“[M.J.’S MOTHER:] Yes.
“[THE PROSECUTOR:] What did she tell you was done to her?
“[DEFENSE COUNSEL]: Objection, your Honor, hearsay. This is no longer a fresh complaint.
“THE COURT: It’s not being offered for the truth of the matter. It’s being offered to establish why they did what they did, decided to do, overruled.
“[M.J.’S MOTHER]: That he had push her in the car, and that he had pricked or poked her with his fingers in her private parts.
“[THE PROSECUTOR:] Did you call the sheriff?
“[M.J.’S MOTHER:] Yes.”
While instructing the jury, the trial court gave CALCRIM Nos. 303 and 318 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)) as follows:
“During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.
“You have heard evidence of statements that a witness made before the trial. If you decide that a witness made those statements, you may use those statements in two ways: One, to evaluate whether a witness’[s] testimony in court is believable, and; two, as evidence that the information in those earlier statements is true.”
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless there exists an exception to the rule which permits its admission. (Id., subd. (b).)
Under the fresh-complaint doctrine, however, the court may admit evidence of a complaint made by a victim of a sexual offense. (People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).) In Brown, the California Supreme Court articulated the modern view of the doctrine: “[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose -- namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others -- whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred. Under ... generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the ‘freshness’ of a complaint, and the ‘volunteered’ nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence.” (Id. at pp. 749-750.)
Brown also placed limits on the type of testimony that may be admitted under the fresh-complaint doctrine: “[E]vidence of the victim’s report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose.” (Brown, supra, 8 Cal.4th at p. 763.) The fact of the making of the complaint includes “evidence demonstrating that the complaint ‘“related to the matter being inquired into, and [was] not a complaint wholly foreign to the subject ....”’ [Citation.]” (Id. at p. 756, citing People v. Burton (1961) 55 Cal.2d 328, 351 (Burton).) This limitation is required in order to “eliminat[e] or at least minimiz[e] the risk that the jury will rely upon the evidence for an impermissible hearsay purpose” -- that is, “as tending to prove the truth of the underlying [sexual offense] charge.” (Brown, supra, at pp. 762-763.)
According to Burton, “the alleged victim’s statement of the nature of the offense and the identity of the asserted offender, without details, is proper. (E.g., People v. Adams (1928), 92 Cal.App. 6, 16 [‘that appellant had “ruined her”’]; People v. Porter (1920), 48 Cal.App. 237, 241-242; People v. Lopez (1917), 33 Cal.App. 530, 534 [‘that she had had sexual intercourse with her father’]; [citation].)” (People v. Burton, supra, 55 Cal.2d at pp. 351-352.) In Burton, the victim’s testimony that the victim’s stepfather “‘made me play with his peter’” was permissible as a statement of the fact of molestation. (Id. at pp. 337, 351; see also People v. Butler (1967) 249 Cal.App.2d 799, 804 [“‘the man was sucking his thing’”]; People v. Cordray (1963) 221 Cal.App.2d 589, 594 [“‘he had pulled her pants down and he had kissed her between the legs’”].) In light of these authorities, we believe that the statements of M.J.’s sister and mother that M.J. told them defendant “had got her in the car and that he had touched her, put his finger inside her private part” and “had push her in the car, and that he had pricked or poked her with his fingers in her private parts” were permissible as statements of the fact of molestation. The detail in these statements did not exceed what has been found acceptable in other cases. The admission of the statements was not an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203 [abuse of discretion standard applicable].)
Defendant further argues that the trial court failed to sua sponte instruct the jury with a limiting instruction regarding the use of the fresh complaint evidence. As the court in Brown stated, a trial court has no duty, absent a request, to provide such a limiting instruction. (Brown, supra, 8 Cal.4th at p. 757.) Defendant made no request for a limiting instruction in this case and therefore he cannot now complain about the trial court’s failure to provide one.
V. Expert Witness Testimony
Margie Jessen, a registered nurse and forensic nurse specialist, had performed approximately 150 sexual assault examinations on children and had served as an expert witness throughout the region. On June 27, 2004, at about 1:00 a.m., she examined M.J. The physical examination revealed a hymenal transection or tear. M.J. was actively bleeding. The nurse noticed and collected some debris around the vaginal area. The nurse also took a history from M.J. -- that is, the nurse recorded what M.J. told her had happened. The nurse recounted the following history during direct examination:
“[M.J.’s] father’s friend, Ignacio, placed her inside his car to check the gas. While in the car, [M.J.] state[d] -- and I have it in quotes -- ‘He poked me,’ pointing to her vaginal area. And [M.J.] stated in quotes, ‘It hurt me.’ Then [M.J.] told her sister and her sister told her parents.”
When the prosecutor asked the nurse whether, in her opinion, M.J.’s injuries were consistent with the history of the sexual assault given to her by M.J., the nurse responded affirmatively. In all of the child examinations conducted by the nurse, this was the only case in which the child was actively bleeding.
On cross-examination, the nurse agreed that, if she had noticed black grease or oil on M.J.’s vaginal area, she would have noted it in her report. M.J., however, had urinated since the assault.
A. Opinion Exceeding Expertise
Defendant first complains the nurse’s opinion that M.J.’s injuries were consistent with a sexual assault was beyond the nurse’s expertise. He states there was no foundation that the nurse had special knowledge regarding whether the injuries might have been inflicted by other means and therefore she was not qualified to opine that a particular injury was consistent with a sexual assault.
“An expert is permitted to offer an opinion on ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.] And a particular expert is sufficiently qualified if ‘the witness has sufficient skill or experience in the field so that his [or her] testimony would be likely to assist the jury in the search for the truth.’ [Citation.] A trial court’s ruling permitting expert testimony is reviewed on appeal under the deferential abuse of discretion standard. [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 766; see also Evid. Code, §720, subd. (a).)
Here, the trial court did not abuse its discretion when it determined that the nurse was qualified to give an opinion on whether the victim’s injuries were consistent with a sexual assault. Contrary to defendant’s claim, the nurse’s opinion was well within her expertise. The record establishes that she had extensive training and experience in the field of children’s sexual assaults. Furthermore, the nurse’s opinion was fully supported by the evidence, which demonstrated that M.J. suffered a hymenal tear and was still actively bleeding when she was examined.
B. Opinion as to Guilt
Defendant next argues that the nurse’s opinion that M.J.’s injuries were consistent with a sexual assault amounted to a “thinly veiled opinion” that M.J. was a credible witness.
The nurse, however, was not vouching for M.J.’s truthfulness when she answered that the injuries were consistent with the history given by M.J. The statement was not a conclusive assertion of causation, and the nurse did not testify that she had formed an opinion that M.J. was telling the truth. The jury was instructed that it was the sole judge of the credibility of the witnesses and it was given certain factors to consider in evaluating truthfulness. (CALCRIM No. 226.) We assume the jury followed the instructions as given by the trial court and that it made its own determination of M.J.’s credibility. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
C. Hearsay Regarding Defendant’s Identification
Defendant lastly contends M.J.’s statement to the nurse identifying defendant as her abuser was not admissible under Evidence Code section 1253 because defendant was not a member of M.J.’s family or household.
According to Evidence Code section 1253, “evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect....” Evidence Code section 1253 was enacted in 1995 (Stats.1995, ch. 87, § 2) and was patterned after rule 803(4) of the Federal Rules of Evidence (People v. Brodit (1998) 61 Cal.App.4th 1312, 1331). “The federal courts have consistently held that a child’s statements describing the nature and circumstances of sexual abuse, made in the course of a child sexual abuse examination ... are admissible under the rule as they are reasonably pertinent to diagnosis or treatment. [Citations.] Moreover, although a declarant’s statement to a physician that identifies the person responsible for the declarant’s injuries is ordinarily inadmissible under Federal Rules of Evidence, rule 803(4) (28 U.S.C.), a hearsay statement revealing the identity of a sexual abuser who is a member of the victim’s family or household is admissible where the abuser has such an intimate relationship with the victim that the abuser’s identity becomes reasonably pertinent to the victim’s proper treatment. This is because ‘[a]ll victims of domestic sexual abuse suffer emotional and psychological injuries, the exact nature and extent of which depend on the identity of the abuser. The physician generally must know who the abuser was in order to render proper treatment because the physician’s treatment will necessarily differ when the abuser is a member of the victim’s family or household.’ [Citations.]” (People v. Brodit, supra, at p. 1331, italics added; see also In re Daniel W. (2003) 106 Cal.App.4th 159, 164.)
Assuming it was error to admit the portion of M.J.’s statement identifying defendant to the nurse, we conclude that error was harmless. Any error in admitting the evidence would warrant reversal of defendant’s conviction only if we conclude that it is reasonably probable the jury would have reached a different result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) It is inconceivable in this case that the absence of such evidence would have made any difference in the outcome of the trial. The admission of M.J.’s hearsay statement identifying defendant did not bring evidence before the jury that it otherwise would not have heard. M.J. testified at trial and was subject to cross-examination. M.J.’s sister and mother also testified. The effect, if any, of the admission of the hearsay statement was merely to corroborate their testimony. It was up to the jury to consider M.J.’s credibility. Therefore, it is not reasonably probable that the jury would have come to a more favorable verdict had the hearsay testimony been excluded.
VI. Prosecutorial Misconduct
Defendant contends the prosecutor committed reversible error when she requested during argument that the jury listen to the victims and protect them and other girls in the community from defendant. The People concede the impropriety of the comments but maintain the error was harmless under any standard.
During the prosecutor’s closing argument, the following occurred:
“[THE PROSECUTOR:] I can’t stress it enough, please listen to the testimony of MJ. Please recall the pattern of escalation in this case. Please listen to the girls, protect these girls and other girls in this community from that person.
“THE COURT: That’s improper.
“[DEFENSE COUNSEL]: Objection, Judge.
“THE COURT: Your job, ladies and gentlemen, is to evaluate the evidence in this case and not to protect anyone else. Your job is to evaluate the evidence in this case and determine whether or not it’s been proven beyond a reasonable doubt.
“That’s improper argument, Counsel.
“[THE PROSECUTOR]: These girls were between six and seven years old. Helpless girls in relation to an adult. Please listen to their cries. Thank you.”
“[O]n claims of prosecutorial misconduct our state law standards differ from those under the federal Constitution. With respect to the latter, conduct by the prosecutor constitutes prosecutorial misconduct only if it ‘“‘“so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.”’”’ [Citations.] By contrast, our state law considers it misconduct when a prosecutor uses ‘“‘“deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citations.] … ‘A defendant’s conviction will not be reversed for prosecutorial misconduct’ that violates state law, however, ‘unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1070.)
Defendant argues the prosecutor’s comments were of federal constitutional magnitude, but we conclude the comments did not “‘“‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process’”’” in violation of the federal Constitution. (People v. Earp (1999) 20 Cal.4th 826, 858; Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.)
We also conclude the comments did not constitute prejudicial misconduct under state law. Without waiting for defense counsel’s objection, the court immediately and unequivocally criticized the argument as improper, then clearly informed the jury that its job was to evaluate the evidence in the case and not to protect anyone in the community. The trial court’s admonition to the jury was adequate to cure any prejudice from the prosecutor’s improper argument. (See In re Brian J. (2007) 150 Cal.App.4th 97, 122-123 [trial court’s admonition emphasized that jury’s duty was to determine whether petition was true beyond a reasonable doubt, not to insure the protection of society].) No reasonable probability exists that without the objectionable comments the jury would have reached a verdict more favorable to defendant.
VII. Upper Term Sentence
Defendant asserts that the trial court erred when it relied on certain aggravating factors -- that the victim was particularly vulnerable and that defendant took advantage of a position of trust -- to impose the upper term for failing to register as a sex offender because (1) the aggravating factors were not found true beyond a reasonable doubt by a jury, in violation of Cunningham, supra, 549 U.S. 270 and (2) the aggravating factors did not relate to the crime of failing to register as a sex offender.
At sentencing, the trial court stated it had read and reviewed the probation report and had reviewed defendant’s criminal record set out in that report. The probation report showed that defendant’s criminal record consisted of six prior convictions, including five misdemeanor convictions, followed by a felony conviction for which defendant served a prison term (the prior conviction in this case). The probation officer listed defendant’s serious prior record of criminal conduct as an aggravating factor, citing rule 4.421(b)(2) of the California Rules of Court. The court imposed sentence as follows:
All references to rules are to the California Rules of Court unless otherwise noted.
“[THE COURT:] In Count 2 [failing to register as a sex offender], he’s committed to state prison for the aggravated term of six years .… [¶] The basis for the aggravat[ed] term is that the victim was particularly vulnerable and the defendant took advantage of a position of trust or competence [sic] to commit the offense. There are no mitigating factors in this Court’s opinion and therefore the aggravating factors outweigh the mitigating factors. The total term or credits of 428 days.
“[DEFENSE COUNSEL]: Excuse me, Judge, I just have to object to the Court’s findings. Count 2 doesn’t pertain to [section] 288 conduct.
“THE COURT: I’m imposing the aggravat[ed] term. And also, in Count 1, the defendant is committed to state prison for 50 years to life plus one year pursuant to [section] 667.5(b) with zero presentence credits.”
As noted above, the trial court did not expressly rely on defendant’s criminal record when it imposed sentence.
A. Cunningham Error
Cunningham held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296. (Cunningham, supra, 549 U.S. at pp. 274-275.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court stated: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816, italics added.) Consequently, “[t]he issue to be determined in each case is whether the trial court’s factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Id. at p. 815.) “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey, supra, 530 U.S. at p. 490] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) The Supreme Court further concluded the defendant was not entitled to a jury finding on whether his prior convictions were numerous or increasingly serious. (Id. at pp. 819-820.) The court stated, “[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’” (Ibid.)
Black II makes clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) The court also stated that it considered “other aggravating circumstances set out in the district attorney’s sentencing brief.” These included the defendant’s criminal history. The probation report also included the defendant’s criminal history. This was sufficient even though the trial court did not mention the defendant’s criminal history explicitly. (Id. at p. 818.)
In this case, defendant’s six prior convictions constituted “numerous” prior convictions within the meaning of rule 4.421(b)(2). (See People v. Stuart (2008) 159 Cal.App.4th 312, 314 [six prior misdemeanor convictions “plainly ‘numerous’” within meaning of rule 4.421(b)(2) and thus proper basis for aggravated term]; People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions are “numerous” under former rule 421(b)(2) ].) Furthermore, they were of increasing seriousness. (See People v. Ramos (1980) 106 Cal.App.3d 591, 609-610 [where defendant convicted of robbery had two minor juvenile offenses and prior adult convictions for petty theft and driving without a license, the prior convictions were of increasing seriousness], disapproved on another ground in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16.) The trial court therefore did not err by imposing the upper term sentence because the record established defendant was eligible for that sentence. Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial by imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)
We respectfully disagree with People v. Cardenas (2007) 155 Cal.App.4th 1468, in which Division Seven of the Second District Court of Appeal found reversible error because the trial court imposed the upper term based on its view that the crime involved planning and sophistication. The defendant had prior misdemeanor convictions and the Court of Appeal assumed they were included in the probation report (id. at p. 1482), but it held that this was not enough under Black II. The court stated: “[T]he language of Black II strongly suggests the trial court must have at least relied on the defendant’s prior criminal record as one of its reasons for imposing the high term before it can be considered as making that defendant ‘eligible’ for the high term and thus ‘authorizing’ that elevation of the sentence and allowing the trial court to use otherwise constitutionally infirm factors in deciding to do so.” (People v. Cardenas, supra, at p. 1481.) In our opinion, however, the trial court in Black II did not rely on the defendant’s prior convictions, but relied instead on “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) The trial court stated that it merely “considered ... the other aggravating circumstances set out in the district attorney’s sentencing brief,” which included the defendant’s prior convictions. (Id. at p. 818, italics added.)
B. Unrelated Aggravating Factors
Defendant also contends the trial court erred because the aggravating factors did not relate to the offense of failing to register as a sex offender (see People v. Garcia (1995) 32 Cal.App.4th 1756, 1779 [in selecting base term for a substantive offense, trial court can use facts relating to the crime only if they relate to that offense; similarly, in selecting base term for an enhancement, trial court should use such facts only if they relate to that enhancement]). Any error in relying on improper aggravating factors was harmless. A single factor in aggravation will justify the imposition of the upper term, and where there remains one “unassailable valid” factor, any error in considering improper factors is harmless. (People v. Forster (1994) 29 Cal.App.4th 1746, 1759; People v. Osband, supra, 13 Cal.4th at p. 728.) Here, the factor of defendant’s numerous prior convictions is an unassailable valid factor and therefore it is not reasonably probable a different sentence would have been reached by the trial court had it not relied on the improper factors. (People v. Dreas (1984) 153 Cal.App.3d 623, 636-637.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J. Cornell, J.
According to subdivision (a)(10) of section 1238, the People may appeal from “[t]he imposition of an unlawful sentence …. As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” The Supreme Court has held that “the People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the ground that defendant’s sentence is unlawful because the trial court erred in ruling that [an] alleged prior conviction was not a strike.” (People v. Trujillo (2006) 40 Cal.4th 165, 169.)