Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct. No. SWF018224, Albert J. Wojcik, Judge.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
A jury found defendant, Charles Richard Olson, guilty as charged of the rape of an unconscious person, Jane Doe, in count 1. (Pen. Code, § 261, subd. (a)(4).) In count 2, defendant was found guilty of assault (Pen. Code, § 240), as a lesser included offense to assault with a deadly weapon, an automobile. In count 3, defendant was found guilty as charged of battery inflicting serious bodily injury. (Pen Code, § 243, subd. (d).) Defendant was sentenced to six years in prison, and appeals.
Defendant’s sentence consists of the middle term of six years on count 1, a concurrent middle term of three years on count 3, and a concurrent term of 180 days in jail on count 2.
Defendant claims the trial court erred in (1) refusing to admit evidence that Doe told one of defendant’s friends she had been gang raped, for purposes of impeaching Doe’s trial testimony; (2) in failing to instruct the jury, sua sponte, on the effect of third party attempts to suppress evidence against defendant with Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 371, Alternative C, or a similar instruction; and (3) in failing to continue the trial, sua sponte, in order to allow defense counsel time to consult with a toxicology expert. Lastly, defendant claims that the cumulative effect of the trial court’s errors requires reversal. We find no individual or cumulative error, and affirm the judgment.
II. BACKGROUND
A. Prosecution Evidence
Defendant and Doe met in April or May 2006. Doe was a transient and often spent the night in defendant’s trailer in Lake Elsinore. Defendant expressed an interest in having “more than just a friendship” with Doe, but Doe told him she did not want to be more than friends.
Around 9:00 or 10:00 p.m. on August 23, 2006, Doe went to defendant’s trailer. Defendant asked Doe whether she wanted to smoke some methamphetamine, and Doe agreed. Doe was a regular methamphetamine user, and thought the methamphetamine had an unusual, bitter taste. Defendant then offered Doe lemonade, which Doe also thought tasted unusually bitter.
After smoking the methamphetamine and drinking the lemonade, Doe became tired and fell asleep on defendant’s couch. She awoke when she felt defendant lying behind her with his erect penis inserted into her vagina. She “screamed” at defendant, “What the fuck are you doing?” and he began hitting her in her head and face. He also bit her on the back. He stopped hitting her after she said she was “sorry.”
Defendant got off of Doe, called Doe a “fucking bitch,” and told her he would kill her if she told anyone. He spent the next 20 minutes pacing the room and yelling at her. Eventually, Doe ran out of the trailer, through a gate, and down a dirt road. Defendant began yelling at Doe to come back. He got into his truck and drove straight at Doe, forcing her to jump over a guardrail to avoid being hit by his truck.
Defendant caught up with Doe, got out of his truck, and began hitting her again. Doe pleaded with him to stop. After Doe and defendant saw the headlights of another car heading toward them, defendant got back into his truck and drove away. Doe began walking toward the highway, then blacked out.
Doe next recalled being awakened by two women asking her name. She began crying frantically and told the women that defendant had just raped her and not to call the police because she feared defendant would come back and kill her. The women called the police anyway. Doe was still crying and visibly upset when the police arrived. She was later taken to the hospital. Doe had multiple abrasions and bruising on her head, arms, and legs, and a bite mark on her back.
Toxicologist Daniel Coleman examined Doe’s urine for a wide range of legal and illegal substances. He found Promethazine, a prescription antihistamine used for sea sickness, allergy, and colds, which has a sedative effect, and Dextromethorphan, a substance found in over-the-counter cough suppressants, which also causes sleepiness or drowsiness, in Doe’s system. These substances have a bitter taste, and can be mixed with methamphetamine. Doe testified that, during the two-week period prior to the rape, she had not ingested either of these substances.
Mr. Coleman did not find either Rohypnol or GHB, the “date rape” drugs, in Doe’s system. However, these drugs “dissipate rapidly”; they do not stay in a person’s system for more than “a few hours” and may be eliminated earlier through frequent urination.
B. Defense Evidence
Defendant did not testify. The defense claimed that Doe had either fabricated her story or imagined that the rape had occurred. Defendant called a number of his relatives, neighbors, and friends, who testified they had often seen Doe engage in bizarre behavior and say “crazy things.” She often had auditory and visual hallucinations, and talked to herself and to others who were not present. One neighbor testified that, on the night of the rape, he had his windows open but did not hear any screaming or crying coming from defendant’s trailer. He also did not hear defendant’s truck start that night.
III. DISCUSSION
A. The Trial Court Properly Refused to Admit Evidence, to Impeach Doe’s Credibility, That Doe Claimed to Have Been Gang Raped By Several Black Men in 2005
The trial court excluded defense-proffered testimony from defendant’s friend and neighbor, Echo Roney, that before August 2006, Doe told Ms. Roney that Doe had been gang raped by seven to nine Black men in 2005 and did not report the rape to police or seek medical attention. The evidence was offered to impeach Doe’s claim that defendant raped her in August 2006. (Evid. Code, §§ 1103, subd. (c)(5), 782.)
All further statutory references are to the Evidence Code unless otherwise indicated.
The trial court excluded the evidence on the ground the defense had no evidence that Doe’s statement to Ms. Roney was false, that is, there was no evidence that the 2005 gang rape did not occur. Defendant claims the trial court both abused its discretion and violated his federal constitutional rights to confrontation and due process in refusing to admit the impeachment evidence. We find no error.
1. Background
Following jury selection and before opening statements, the defense gave the prosecution a supplemental defense investigation report describing Ms. Roney’s proposed testimony concerning Doe’s statement that she had been gang raped in 2005. The prosecution filed a motion seeking to preclude the defense from presenting Ms. Roney’s testimony on the grounds it violated section 1103, subdivision (c)(1). The statute prohibits the defense, in rape and other sexual assault cases, from presenting “‘opinion evidence, reputation evidence, and specific instances of the complaining witness’ sexual conduct’” to show that the complaining witness consented to the alleged rape or sexual assault. (§ 1103, subd. (c)(1).)
The defense filed a written opposition to the motion, which argued that Ms. Roney’s testimony would not violate section 1103, subdivision (c)(1) because Doe’s statement about the 2005 gang rape was not being offered to show that Doe consented to having sexual intercourse with defendant. Instead, it was being offered to impeach Doe’s credibility on her present claim that defendant had raped her. (§§ 782, 1103, subd. (c)(5).) As the defense pointed out, section 1103, subdivision (c)(5) provides that, “Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782.”
Section 782 allows the defense to offer evidence of a complaining witness’s sexual conduct to impeach the complaining witness’s credibility, provided the defense follows the procedures set forth in section 782. These include the filing of a written motion stating “an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness.” (§ 782, subd. (a)(1).) The trial court is to determine whether the offer of proof is sufficient to warrant a hearing outside the presence of the jury. At the hearing, if any, the parties may examine the complaining witness. (Id., subd. (a)(2) & (3).)
At the hearing on the prosecution’s motion, the prosecutor argued there was no way to determine whether Doe’s statement to Ms. Roney was untrue, or whether Doe had been gang raped in 2005, because the matter was not reported to the police. Thus, the prosecutor argued, placing the issue before the jury would be far more prejudicial than probative and would require “an entire trial on a collateral issue.” In addition, the prosecutor complained that the defense had not followed the procedures set forth in section 782; Ms. Roney was a convicted felon, and her testimony about Doe’s statement would be hearsay.
Defense counsel said she had just received the supplemental defense investigation report, and for that reason had not filed a written motion pursuant to section 782. She was offering Ms. Roney’s testimony solely for impeachment purposes and not on the issue of consent. The defense cited People v. Adams (1988) 198 Cal.App.3d 10, 17 through 19, in which the court found it was reversible error to exclude evidence that the complaining witness had, on two prior occasions, falsely accused others of rape. Here, too, counsel argued, the jury should be allowed to determine the truth of Doe’s alleged statement to Ms. Roney about having been gang raped in 2005, particularly because Doe’s credibility was a critical issue in the case.
The trial court observed that, although the defense had not filed a written motion and offer of proof in accordance with section 782, the statute provided a mechanism to address the issues concerning Doe’s alleged statement to Ms. Roney. But the problem, the court said, was that the defense had no evidence that Doe’s claim of having been gang raped in 2005 was a false accusation of a prior rape. Defense counsel responded that Doe often made “bizarre statements like this,” and Doe’s alleged statement to Ms. Roney about the 2005 gang rape was probative of whether her claim that defendant had raped her was credible. The defense admitted, however, it had no evidence that Doe’s statement about the 2005 gang rape was true or untrue. For this reason, the court ruled that Doe’s statement could not be admitted.
2. Applicable Law
The issue before the trial court involved the long-standing, inherent tension and conflicting policy considerations underlying sections 1103, subdivision (c), and 782. As noted, the former statute prohibits the defense in rape and other sexual assault cases from introducing evidence concerning a complaining witness’s prior “sexual conduct” to prove that the complaining witness consented to the current rape or sexual assault. (§ 1103, subd. (c)(1).) “In adopting this section the Legislature recognized that evidence of an alleged victim’s consensual sexual activities with others has little relevance to whether consent was given in a particular instance. [Citation.]” (People v. Chandler (1997) 56 Cal.App.4th 703, 707.)
Section 1103 provides, in pertinent part: “(c)(1) Notwithstanding any other provision of this code to the contrary, and except as provided in this subdivision . . . opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness’ sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the complaining witness. [¶] . . . [¶] (5) Nothing in this subdivision shall be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. [¶] (6) As used in this section, ‘complaining witness’ means the alleged victim of the crime charged, the prosecution of which is subject to this subdivision.”
Section 782 provides, in pertinent part: “(a) In any of the circumstances described in subdivision (c), if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: [¶] (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. The affidavit shall be filed under seal and only unsealed by the court to determine if the offer of proof is sufficient to order a hearing pursuant to paragraph (3). After that determination, the affidavit shall be resealed by the court. [¶] (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352 of this code, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court. . . .”
Section 1103, subdivision (c)(5), the credibility exception, provides that the statute shall not be construed as prohibiting “evidence offered to attack the credibility of the complaining witness as provided in Section 782.” Together, sections 1103, subdivision (c)(5) and 782 allow evidence of the complaining witness’s sexual conduct to be admitted to impeach the credibility of the complaining witness, provided the defense follows the procedures set forth in section 782. As noted, section 782 requires the defendant, the proponent of the impeachment evidence, to file a written motion and an affidavit stating an offer of proof concerning how the evidence is relevant to the credibility of the complaining witness. (§ 782.)
The procedures outlined in section 782 “diminish the potential abuse” of the credibility exception in part by requiring that the trial court apply section 352 and assess whether the probative value of the sexual conduct evidence, on the issue of credibility, is substantially outweighed by the danger that its admission will confuse the issues or result in undue prejudice. (People v. Chandler, supra, 56 Cal.App.4th at pp. 707-708.) The trial court must also balance the need to preserve the defendant’s confrontation rights, on the one hand, against the policy of limiting public exposure of the complaining witness’s sexual history, on the other. (See ibid.; People v. Blackburn (1976) 56 Cal.App.3d 685, 690-691 [credibility exception of § 1103, subd. (c)(5), formerly subd. (c)(4), preserves defendant’s right of confrontation].)
“By narrowly exercising the discretion conferred upon the trial court in this screening process, California courts have not allowed the credibility exception in the rape shield statutes to result in an undermining of the legislative intent to limit public exposure of the victim’s prior sexual history.” (People v. Chandler, supra, 56 Cal.App.4th at p. 708.) As a result, “[t]he credibility exception has been utilized sparingly, most often in cases where the victim’s prior sexual history is one of prostitution.” (Ibid.) Absent an abuse of discretion, an appellate court will not disturb a trial court’s ruling on the admissibility of sexual conduct evidence for impeachment purposes. (Id. at p. 711.)
3. Analysis
As noted, defendant claims the trial court, in excluding Doe’s statement to Ms. Roney that Doe had been gang raped in 2005, both abused its discretion and violated his constitutional rights to present a defense and due process. The People argue that defendant’s claim fails on procedural grounds because the defense did not comply with the procedures outlined in section 782 in seeking to admit Doe’s statement for impeachment purposes. Alternatively, the People argue that defendant’s claim fails on its merits. We agree that the claim fails on its merits.
First, it is apparent from the discussion of the matter in the trial court that defense counsel’s failure to file a written motion and affidavit pursuant to section 782 did not affect the trial court’s ruling. There was no need to hold a hearing outside the presence of the jury to ascertain the circumstances surrounding the statement, because defense counsel admitted there was no evidence that the statement was untrue. The trial court reasonably determined that this rendered the statement more prejudicial than probative on the issue of Doe’s credibility.
Although Doe’s statement to Ms. Roney was hearsay, if Doe admitted making the statement, it could have been admitted directly through Doe. Alternatively, if Doe denied making the statement, it could have been admitted through Ms. Roney’s testimony pursuant to the prior inconsistent statement exception to the hearsay rule. (§ 1235.)
Indeed, Doe’s statement that she had been gang raped in 2005 involved evidence of her prior sexual conduct with others. As such, the statement had the potential of prejudicing the jury against Doe and the prosecution’s case and of confusing the issues. Therefore, it was critical that the statement be accompanied by “some evidence” it was untrue. The admission of the statement for impeachment purposes, without any evidence that the statement was untrue, would have invited the jury to unfairly assume the statement was untrue. Thus, the statement’s probative value for impeachment purposes was substantially undermined, and its potential prejudicial effect was significantly increased, by the lack of evidence that it was untrue. The trial court recognized this, and did not abuse its discretion in ruling that the statement was inadmissible for this reason.
Defendant maintains that the credibility of the statement was a matter for the jury to decide. This argument disregards the trial court’s obligation to apply section 352 in determining whether to admit evidence involving the sexual conduct of a complaining witness to impeach the witness’s credibility. (§ 782, subd. (a)(4).) It is not sufficient to say, as defendant does here, that the jury should determine the credibility of any impeachment evidence that involves sexual conduct of the complaining witness. As discussed, other considerations are at stake—including the statement’s potential to prejudice the prosecution’s case and confuse the issues.
We note that People v. Adams, supra, 198 Cal.App.3d at pages 17 through 19, upon which defendant relies, is distinguishable on its facts. There, the court held it was error to exclude, for impeachment purposes, evidence that the complaining witness had falsely accused others of rape. Although the record was unclear, the court assumed that the defense would have been able to present evidence that the prior rape accusations were in fact false. (Id. at pp. 16, 18.) Here, however, the defense admitted it had no evidence that Doe’s 2005 gang rape allegation was false.
Regarding defendant’s constitutional claims, we observe that, “‘“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.”’” (People v. Gurule (2002) 28 Cal.4th 557, 620.) Here, too, there was no right to confrontation or due process violation.
The trial court properly applied the rules of evidence and consciously weighed the section 352 factors for and against admitting the evidence for impeachment purposes. It is also notable that the defense was able to present extensive evidence tending to impeach Doe. The jury heard testimony from several of defendant’s friends and neighbors that Doe had engaged in bizarre behavior and often said “crazy things.” The jury also heard that Doe had four prior convictions involving moral turpitude. Thus here, the exclusion of Doe’s statement, for impeachment purposes, did not deprive defendant of due process or his right to present a defense.
B. The Trial Court Did Not Have a Duty to Instruct Sua Sponte Regarding Third Party Attempts to Suppress Evidence
During trial, one of defendant’s neighbors, Sharon Alston Nitz, testified that, shortly before trial, a truck drove by her house and someone in the truck yelled out, “Anybody that’s going to testify is going down.” Defendant was in custody at the time.
Ms. Nitz first testified that during the early morning hours of August 24, 2006, she was awakened by a boom and thought there may have been an accident. When she looked outside she saw Doe standing near a truck and heard a male voice yell at Doe, “Get your fucking butt back in the fucking truck.” She denied seeing that defendant was the male in the truck. Deputy Carl Coates later testified that he took Ms. Nitz’s statement around 5:00 a.m. on August 24. At that time, Ms. Nitz told him she was standing in her yard when she saw Doe running away while defendant was chasing her in a white pickup truck and she heard defendant yell at Doe to get into the truck.
Based on Ms. Nitz’s testimony, defendant claims the trial court had a duty to instruct the jury, sua sponte, that it could not attribute third party statements to suppress witness testimony to defendant unless it found that defendant authorized or participated in the third party’s statements or actions. (See, e.g., CALCRIM No. 371, Alternative C.) Defendant did not request any such instruction in the trial court, however.
CALCRIM No. 371 (Alternative C—fabrication or suppression by third party) states: “If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his/her guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself.”
We reject this claim, precisely because defendant did not request CALCRIM No. 371, Alternative C, or a similar instruction in the trial court. “Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request.” (People v. Lang (1989) 49 Cal.3d 991, 1020; People v. Boyer (2006) 38 Cal.4th 412, 465.) Nor is there any reason why the general rule that limiting instructions are not required to be given sua sponte should not apply in this case.
As the state Supreme Court has recognized, there may be a duty to give a limiting instruction sua sponte in the “‘occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’” (People v. Lang, supra, 49 Cal.3d at p. 1020, quoting People v. Collie (1981) 30 Cal.3d 43, 64.) “‘In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.’” (People v. Bunyard (1988) 45 Cal.3d 1189, 1225, quoting People v. Collie, supra, at p. 64.)
But this is not an extraordinary case in which a limited instruction was necessary to protect defendant’s interests. Ms. Nitz’s testimony concerning the unidentified third party’s threat to her was not an important part or even a minor part of the prosecution’s case against defendant. The prosecutor did not mention the third party threat to Ms. Nitz during closing argument. Moreover, there was no evidence that defendant authorized or participated in the third party threat to Ms. Nitz. It is also far from clear whether CALCRIM No. 371, Alternative C, would have helped or harmed defendant. Indeed, defense counsel had a sound, strategic reason not to request the instruction because it would have focused the jury’s attention on the third party threat to Ms. Nitz when, in fact, there was no evidence that defendant authorized or had anything to do with the threat.
As defendant acknowledges, there is no case law supporting the proposition that CALCRIM No. 371 or a similar instruction must be given sua sponte. Nevertheless, defendant urges this court to hold there is a duty to give the instruction, sua sponte, when, as here, the evidence shows a third party suppressed or attempted to suppress evidence. We decline to adopt such a rule. Such a rule would be contrary to established law (e.g., People v. Boyer, supra, 38 Cal.4th at p. 465 [no duty to give limiting instruction sua sponte]) and would deprive defendant of the strategic option defense counsel apparently exercised here—that is, electing not to focus the jury’s attention on a minor point of evidence.
The Bench Notes to CALCRIM No. 371 state: “No authority imposes a duty to give this instruction sua sponte.” And, although the Bench Notes further state that a duty to instruct sua sponte was found under the circumstances described in People v. Atwood (1963) 223 Cal.App.2d 316, 333 and 334 (Atwood), Atwood is another type of “extraordinary case.” Unlike the “extraordinary case” described in People v. Collie, supra, 30 Cal.2d at page 64, which involved the failure to give a limiting instruction on prior crimes or “other bad acts” evidence, Atwood involved the failure to instruct on another type of important evidence—evidence pertaining to whether the defendant admitted his guilt of the charged crime.
The defendant in Atwood was charged with burgling a garage. An inspector testified that defendant was silent when informed that his palmprint had been found in the garage, and that defendant also made pretrial statements to the inspector that conflicted with the defendant’s trial testimony. (Atwood, supra, 223 Cal.App.2d at pp. 321, 333-334.) The jury was not instructed on the facts or circumstances it had to find in order to infer that defendant’s silence or his prior statements to the inspector showed he had a consciousness of guilt. Nor was the jury instructed that a consciousness of guilt, standing alone, is insufficient to prove guilt. (Id. at pp. 333-334.)
As the Bench Notes to CALJIC No. 371 state, the conflicting testimony presented in Atwood “pertained to the vital question of whether defendant admitted his guilt.” Indeed, whether the defendant in Atwood admitted his guilt through his silence or through his statements to the inspector were crucial issues in the case. (Atwood, supra, 223 Cal.App.2d at p. 333.) The Atwood court described the issue presented as whether the trial court had failed to instruct on “general principles of law governing the case” or “specific points developed at trial.” (Id. at pp. 331-332.) The trial court in Atwood had a duty to instruct sua sponte on the former, but not on the latter. (Ibid.) Based on the importance of the conflicting evidence on the issue of defendant’s admission, the court held that the trial court had a duty to instruct on the evidentiary issues sua sponte.
Unlike Atwood, the present case does not involve a failure to instruct on a critical evidentiary issue that directly pertained to defendant’s guilt. (Cf. Atwood, supra, 223 Cal.App.2d at pp. 331-332.) Nor does the present case involve a failure to instruct on general principles of law closely and openly connected with the facts before the court and necessary for the jury’s understanding of the case. (See People v. Breverman (1998) 19 Cal.4th 142, 154.) Thus, here, the exception described in Atwood does not apply.
Furthermore, the state Supreme Court has interpreted Atwood as not imposing a “categorical duty on trial courts to instruct” on issues pertaining to the defendant’s consciousness of guilt. (People v. Najera (2008) 43 Cal.4th 1132, 1139, fn. 3, citing People v. Carter (2003) 30 Cal.4th 1166, 1197-1198.)
Defendant points out that, at the beginning of trial in March 2007, the trial court told the prosecutor and defense counsel that it preferred to use CALJIC jury instructions. Defense counsel agreed to use the CALJIC instructions but said she preferred to use CALCRIM. As noted, CALCRIM No. 317 contains an alternative instruction, Alternative C, that defendant now claims the trial court had a duty to give sua sponte. The CALJIC instructions, on the other hand, do not contain a similar instruction.
CALJIC No. 2.05 concerns third party attempts to procure, not suppress, false or fabricated evidence, and CALJIC No. 2.06 concerns a defendant’s, not a third party’s, attempts to suppress evidence.
The trial court’s use of the CALJIC rather than the CALCRIM instructions was not erroneous, however. (People v. Thomas (2007) 150 Cal.App.4th 461, 465-466 [adoption of CALCRIM instructions did not render the CALJIC instructions invalid or outdated].) In any event, if defendant wanted the trial court to give CALCRIM No. 371, Alternative C, he could have requested it despite the trial court’s preference for the CALJIC instructions.
The prosecutor requested and the trial court gave CALJIC No. 2.06 (Efforts to Suppress Evidence), based on defendant’s attempt to intimidate Doe from reporting the rape. This instruction told the jury, “If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” In closing argument, the prosecutor argued that defendant attempted to suppress evidence based, in part, on Doe’s testimony that, while she and defendant were still in defendant’s trailer, defendant told her she had better not tell anyone about the rape because no one would believe her and defendant would “slit her throat.” As discussed, however, the prosecutor neither mentioned nor alluded to the third party threat to Ms. Nitz as grounds for inferring that defendant attempted to suppress evidence and therefore showed a consciousness of guilt.
C. The Trial Court Did Not Err in Failing to Continue the Trial, Sua Sponte, to Allow Defense Counsel to Consult With a Toxicology Expert
Defendant claims the trial court further erred in failing to continue the trial, on its own motion, for the purpose of allowing his defense counsel to consult with a toxicology expert, so that defense counsel could prepare to cross-examine the prosecution’s toxicology expert. We reject this claim, because defendant failed to ask for a continuance in the trial court. In any event, defendant has failed to demonstrate any resulting prejudice.
1. Background
Near the end of the prosecution’s case-in-chief, the prosecutor informed the court and defense counsel that he would be calling toxicologist Daniel Coleman to testify concerning the types of chemicals that were found in Doe’s system on August 24, 2006, when a urine sample was taken. The Department of Justice had just released its toxicology screening report, which included a list of all the chemicals found in Doe’s system. The prosecutor had given defense counsel a copy of the screening report, a description of the chemicals that were found in Doe’s system, and a copy of the toxicologist’s resume.
Defense counsel objected to the toxicologist testifying. She was concerned he would testify he found Rohypnol, a date rape drug, in Doe’s system, and she would be at a disadvantage in cross-examining him because she was not in a position to consult with an expert. She asked only that the prosecutor be precluded from asking the toxicologist about date rape drugs, including Rohypnol.
The prosecutor responded that there was no mention of Rohypnol or other date rape drugs in the toxicology report, but the toxicologist was expected to testify that depressants were found in Doe’ system. Still, the prosecutor argued he should be able to ask the toxicologist about the lengths of time Rohypnol or other date rape drugs were detectable in a person’s system following their ingestion.
At this point, Doe was expected to be recalled to testify that she did not voluntarily ingest any depressants, and the prosecutor wanted to argue that Doe had not voluntarily ingested any depressants. As an alternative means of explaining what it was that tasted funny to Doe when she drank the lemonade, and why Doe lost consciousness during the alleged rape, the prosecutor also wanted to argue that Doe may have ingested a date rape drug—provided the toxicologist’s testimony supported that theory.
The trial court ruled that the toxicologist could testify concerning the period(s) of time date rape drugs were detectible following ingestion. And, if the drugs dissipated in a short period of time, the toxicologist could testify whether it was unusual for no trace to be found in a person’s system so many hours after ingestion.
Following the court’s ruling, toxicologist Daniel Coleman testified that he did not find either Rohypnol or GHB, the “date rape” drugs, in Doe’s system. He also said that these drugs “dissipate rapidly” and do not stay in a person’s system for more than “a few hours.” They may also be eliminated earlier through frequent urination.
In addition to methamphetamine and amphetamine, Mr. Coleman found Promethazine, a prescription antihistamine which has a sedative effect, and Dextromethorphan, a substance found in over-the-counter cough suppressants, and which also causes sleepiness or drowsiness, in Doe’s system. Both substances have a bitter taste, and can be mixed with methamphetamine. Doe testified she had not ingested either of these substances during the two-week period prior to the rape.
2. Applicable Law and Analysis
When, as here, defense counsel does not request a continuance in the trial court, the defendant cannot be heard to complain on appeal that the trial court failed to grant a continuance on its own motion. (People v. Alcala (1992) 4 Cal.4th 742, 782.)
In any event, defendant has not shown he was prejudiced by his defense counsel’s failure to request or obtain a continuance. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746 [prejudice prong of ineffective assistance claim requires defendant to demonstrate a reasonable probability he would have realized a more favorable result but for his counsel’s alleged error].)
Defendant claims his counsel “might have been able to establish, either through Coleman’s cross-examination or a defense expert’s direct examination, that street drugs such as [Doe] routinely ingested often were ‘cut’ with other substances; this would have provided an innocent inference for how those drugs got in her system.”
Defendant has not shown how an “innocent” explanation of how the Promethazine or Dextromethorphan got into Doe’s system would have assisted his defense. The drugging of Doe was not an element of the rape charge; the charge required a showing that Doe was unconscious and therefore unable to resist at the time of the rape, and that her condition was known or reasonably should have been known to the defendant. (Pen. Code, § 261, subd. (a)(3).) Thus, the jury did not have to find that defendant intentionally or even accidentally drugged Doe. It only had to find that defendant knew or should have known that Doe was unable to resist as a result of being intoxicated or drugged. (Ibid.)
Furthermore, Mr. Coleman testified that Promethazine and Dextromethorphan can be mixed with methamphetamine, and these drugs, together with methamphetamine and amphetamine, a breakdown product of methamphetamine, were found in Doe’s system. Doe testified that she had been using methamphetamine heavily around the time of the rape, but she did not testify she was using any other illegal substances. Moreover, the other evidence belies an “innocent” explanation for the drugging. The evidence showed that Doe went to defendant’s trailer, he gave her methamphetamine and lemonade and that both tasted unusually bitter, she became tired and fell asleep, then she awoke to find defendant raping her.
Defendant also argues he might have been able to show that Mr. Coleman performed a “qualitative” rather than a “quantitative” drug screening; in other words, Mr. Coleman did not ascertain the amounts of drugs in Doe’s system. But Mr. Coleman testified he performed a qualitative rather than a quantitative drug screening; he did not ascertain the amounts of drugs found in Doe’s system. Moreover, and on this point as well, defendant has failed to explain how consulting with a toxicologist would have assisted his defense. Specifically, he has not shown how demonstrating the quantities of drugs found in Doe’s system would have assisted his defense.
In sum, defendant has not demonstrated a reasonable probability that he would have realized a more favorable result at trial had his trial counsel obtained a continuance and consulted with a toxicologist.
D. No Cumulative Error
Lastly, defendant claims the cumulative effect of the trial court’s errors requires reversal. Because we have found no individual error, there is no cumulative error. (People v. Richardson (2008) 43 Cal.4th 959, 1036.)
IV. DISPOSITION
The judgment is affirmed.
We concur: McKinster, Acting P.J., Richli, J.
When confronted with her prior inconsistent statement to Deputy Coates, Ms. Nitz denied making the inconsistent statement to Deputy Coates but also admitted she did not want to testify at trial. When asked why she did not want to testify, Ms. Nitz explained that, on March 16, 2007, only four days before the trial began, and after she had been in court for the first time, a truck came down her street at 10:20 p.m. and someone inside the truck yelled, “Anybody that’s going to testify is going down.” Someone inside the truck also used defendant’s name. As a result, Ms. Nitz was nervous and frightened to testify.
Also, while discussing jury instructions, the prosecutor told the court he was not requesting CALJIC No. 2.06 based on the third party threat to Ms. Nitz but on defendant’s threat to Doe. The prosecutor told the court he “can’t possibly link” the third party threat to defendant.