Filed 6/20/13 P. v. Thompson CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




THE PEOPLE,                                                          B242201
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. BA366565)

         v.

JASON JAVON THOMPSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Gail R. Feuer, Judge. Convictions affirmed; sentence vacated and remanded.
         Edward J. Haggery, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle
and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
      Appellant Jason Javon Thompson, convicted of one count of sexual assault
of a child under the age of 14 and one count of continuous sexual abuse of a child,
contends he was not competent to stand trial and that the trial court’s contrary
finding was not supported by substantial evidence. He further contends: (1) the
trial court erred in permitting the jury to see the videotape of his police interview
because his Miranda waiver was not knowingly or intelligently made and the
statements were obtained by coercion;1 (2) the court erred in failing to instruct the
jury on the lesser offense of sodomy with a minor; (3) the court erred in excluding
certain opinion testimony from appellant’s half-brother and stepfather concerning
his intellectual ability; (4) the court abused its discretion in denying a request for a
continuance to obtain the appearance of appellant’s psychological expert; (5) the
denial of the continuance violated his due process rights; (6) counsel’s failure to
secure the appearance of the psychologist represented ineffective assistance of
counsel; (7) CALCRIM No. 1120 erroneously negates one of the elements of the
crime of continuous sexual abuse and is argumentative; (8) the court imposed a
consecutive sentence on the continuous sexual abuse count under the erroneous
impression that it was mandatory; (9) the court failed to explain its reasons for
imposing consecutive terms; and (10) the imposition of a $500 restitution fine was
not supported by substantial evidence of ability to pay. We remand for
resentencing on the continuous sexual abuse count and otherwise affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
      A. Information
      In a three-count information, appellant was charged with (1) aggravated
sexual assault of a child under the age of 14, specifically alleged to have been

1
      Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

                                           2
committed between April 1997 and April 1998 (Pen. Code, § 269, subd. (a)(3),
count one); (2) continuous sexual abuse of a minor under the age of 14, alleged to
have occurred during the period from April 1998 to April 2003 (§ 288.5, subd. (a),
count two); and sodomy by force of a victim over the age of 14, specifically
alleged to have been committed between April 2003 and April 2004 (§ 286, subd.
(c)(2)).2


       B. Evidence at Trial
             1. Prosecution Evidence
       Crystal C., appellant’s half sister, testified that the sexual abuse began in
1997, when she was eight and appellant was 21 or 22. At the time she lived with
her mother and father, Monica and John C., and her brothers Aaron C., Johnny C.,
and appellant. She stayed home from school one day due to illness and saw
appellant watching a pornographic video featuring anal sex.3 Later that day, she
was asleep in her room, lying on her stomach. She was awakened when appellant
got on top of her and inserted his penis in her anus. It hurt and she started to cry
and scream. Appellant applied sufficient force that she could not get up. After
appellant finished, he threatened to kill her if she told anyone. She believed him
because he was “always violent.”
       Crystal testified that following that initial incident, appellant regularly
sodomized her until she turned 14, up to three times a week. During the acts, he
often played loud music by a particular rap group. Sometimes he would give her
presents, such as jewelry, shirts and money. Once he put money on the floor, and

2
      Undesignated statutory references are to the Penal Code. After the close of
evidence, the court struck an allegation that appellant committed the continuous sexual
abuse by use of force under section 1203.066.
3
       Crystal suffers from a condition that causes weakness in her legs.

                                            3
when she bent down to pick it up, he sodomized her. On several occasions, he
threatened to kill her if she told anyone. On at least one occasion, appellant
sodomized her with a bar of soap while she was bathing.4 When Crystal was 12,
appellant kissed her on the mouth. Crystal recalled a specific occasion that
occurred when she was 14 when appellant forced himself on her. During the act,
she tried to get up, but his body was on top of hers and she was not strong enough.
       The last sexual incident occurred when Crystal was 14, asleep in the living
room. On that occasion, she awoke to find appellant touching her buttocks and
masturbating. She started crying and asked him why he was doing it to her.
Appellant ran out of the room. Crystal’s brother Aaron woke up and asked Crystal
why she was crying. Appellant returned and also asked what was wrong, as if he
had done nothing.
       Shortly after the final incident, Crystal told a friend at school about the
abuse. The friend advised her to tell her mother, Monica, and Aaron. Crystal told
Aaron and they both informed Monica. Monica confronted appellant, struck him,
and told him to stop and to apologize to Crystal. Monica persuaded Crystal and
Aaron not to tell their father, John, convincing them that he would kill appellant
and be sent to jail and that the family would be broken up.5 A few years later,
when Crystal was in high school, she told some friends and a teacher. Police
officers came to the family home and asked Crystal about the allegations. She
denied that anything had happened because Monica had told her she would end up
in foster care if she told the truth.

4
       Crystal initially testified this happened one time and later stated it had happened
multiple times.
5
       At trial, Aaron confirmed that Crystal had reported the abuse to him when she was
14, that they had both informed Monica, that Monica had confronted and struck
appellant, and that Monica had warned them not to say anything to John. Aaron and John
also testified that appellant possessed pornography relating to anal sex.

                                             4
      In January 2010, when the family was planning to move to a new home,
Crystal and Aaron informed their parents that they did not want to live with
appellant. Monica told Crystal she needed to forgive appellant. John asked what
was going on and Crystal told him about the abuse. John confronted appellant and
asked if he had sodomized Crystal. Appellant began to cry and said, “I don’t
know.”6 The following day, Monica and appellant moved out of the family home.
On January 5, John took Crystal to a police station to report the abuse.
      On the day of his arrest, appellant was interviewed by Detective Timothy
Shumaker.7 Appellant stated he knew Detective Shumaker was “the detective.”
Detective Shumaker asked appellant if he knew why he had been arrested;
appellant answered “[y]eah,” and immediately added, “that’s not true, you know.”
After advising appellant of his Miranda rights, Detective Shumaker asked if he
wanted to talk about what happened. Appellant replied: “Yeah. Crystal is
hallucinating a lot, takes Xanax. She goes crazy on me, and she hits me.” The
detective asked about their relationship and appellant stated that Crystal was
“sometimes real mean and vicious,” and would tell him to “[s]hut the hell up” and
“leave [her] the hell alone.”
      Detective Shumaker advised appellant to be “100 percent honest,” and
added: “[I]f you’re not going to do that, you’re not going to be truthful, then we’re
going to go nowhere. . . . It’s going to just frustrate me.” Appellant agreed he
would be “dead” if the detective found out he was lying. Detective Shumaker
asked for background information about the period when the abuse reportedly
began. Appellant said he had smoked marijuana “basically” on a daily basis. He
then acknowledged: “I touched her. That’s about it.” He went on to state that he


6
      Aaron confirmed the conversation and appellant’s response.
7
      A video of the interview was played to the jury.

                                           5
put his hand under Crystal’s dress when she was ten. Asked specifically about
engaging in anal sex or sodomy with Crystal, appellant denied it.
      Employing a ruse, Detective Shumaker stated that Crystal had maintained a
diary and had written down specific details about the abuse when it occurred. At
that point, appellant admitted sodomizing Crystal. Appellant claimed that Crystal
had initiated the molestation when she was eight by coming into his room and
kissing him and said that there was “no force or nothing.” He denied watching
pornography in front of her or abusing her with soap. He denied threatening her.
      After admitting to sodomizing Crystal, appellant stated, “I’m putting myself
in a grave right now.” Detective Shumaker replied: “Well, you’re being honest.
And when you come out and [are] honest . . . you know, the truth will set you
free.” After that exchange, the detective began to inquire about the frequency of
the abuse. Appellant denied that the sexual incidents happened “every day,” and
initially stated he had sodomized Crystal “twice.” Detective Shumaker asked if he
meant “twice a month.” Appellant then stated it happened once or twice a month
or once a week until Crystal turned 14. Appellant later stated there were only ten
occasions and that it occurred “with her permission.” He ultimately confessed that
the incidents had occurred hundreds of times over the years. Asked about other
sexual acts, appellant stated that he had kissed Crystal and touched her vagina “like
three times,” and that she touched his penis and “came on to [him].” He initially
indicated that he was only 17 when the abuse began, but later admitted he was
actually 21 or 22.
      Detective Shumaker asked about the incident that had allegedly occurred
when Crystal was 14 and asleep on the couch. Appellant denied touching her
when she was asleep, but stated that she “came on to [him]” when she was 14 and
he “react[ed]” once or twice. He initially denied giving Crystal any presents other


                                         6
than Christmas presents during this period, but then admitted he sometimes gave
her money. He denied threatening her.
      After admitting to sodomizing Crystal on a number of occasions, appellant
asked the detective what was going on and if he was “doing the right thing.” The
detective stated that if he was lying, he was lying to himself and “who’s that going
to help?” Later, appellant asked: “Is there any way I could work through this like
with you? . . . Is there any way I could work this out?” Detective Shumaker said
he would “see what [he] could do.” Near the end of the interview, appellant asked
if there was a way he could “work with things” or if he could just “leave the city”
and if the detective needed to “talk to the DA.” The detective stated that someone
else would make the decision, but that he could tell the DA that appellant was
being honest and that appellant was “getting closer to the truth” with regard to the
continuous nature of the abuse.


             2. Defense Evidence
      The defense called Officer Alicia Castro, who had interviewed Crystal when
John took her to report the abuse. Officer Castro’s report indicated that Crystal
had described the first incident differently than she had at trial. Crystal told the
officer that she recalled appellant pulling up her nightgown and taking off her
underwear. Crystal had also said that appellant had taken a shower afterward and
did not report that he had worn a condom.8 With respect to other incidents, Crystal
had told Officer Castro that appellant had sodomized her with soap 20 times.
Crystal had not told the officer that appellant played specific music or that he had
thrown money on the floor and sodomized her when she bent down to pick it up.

8
       During her testimony, Crystal had said she took a bath afterward. During the
preliminary hearing, she said he had been wearing a condom. During trial, she indicated
he was not wearing a condom and had deposited semen on her.

                                           7
      C. Pertinent Argument
      During closing argument, the prosecutor made clear that count one was
based on the first incident of sodomy when Crystal was eight and count three was
based on the sodomy that Crystal had described taking place when she was 14.
The prosecutor argued that use of force sufficient to overcome Crystal’s will was
evident from the fact Crystal was face down with appellant on top of her, and that
she was unable to get up. With respect to count two (continuous sexual abuse), the
prosecutor argued that it could be established either by the evidence of multiple
acts of sodomy or by the evidence of lewd and lascivious conduct, such as
touching Crystal’s buttocks, touching her vagina, or kissing her, if “sexual intent”
was present or if appellant was “thinking about sex when he’s kissing her [or] . . .
touching her vagina.”
      The defense argued that the discrepancies between Crystal’s testimony and
her statement to Officer Castro cast doubt on her credibility. Defense counsel
further argued that the confession was unreliable because appellant had difficulty
understanding what was going on and that Detective Shumaker manipulated him
into admitting that the abuse occurred and even into admitting things that Crystal
had denied -- that appellant touched her vagina and that she touched his penis.
Defense counsel did not focus any argument on the use of force.


      D. Verdict and Sentencing
      The jury found appellant guilty of aggravated sexual assault between April
1997 and April 1998 (count one) and continuous sexual abuse from April 1998 to
April 2003 (count two). The jury was unable to reach a verdict on count three,
which was subsequently dismissed. The court sentenced appellant to 15 years to
life on count one, the mandatory sentence, and imposed a consecutive 16-year
sentence on count two.
                                          8
                                   DISCUSSION
      A. Competence to Stand Trial
             1. Background
      In September 2010, defense counsel declared doubt as to appellant’s
competence to stand trial. The court suspended proceedings and appellant was
evaluated by two psychiatrists and a psychologist -- Ari Kalechstein, Ph.D. for the
defense and Sanjay Sahgal, M.D. and Greg Cohen, M.D. for the prosecution. The
doctors prepared written reports setting forth their findings and conclusions.
Dr. Kalechstein opined that appellant’s developmental disability impaired his
capacity to comprehend his attorney’s instructions and advice, to plan legal
strategies, and to follow the proceedings in court. Dr. Sahgal concluded that
although appellant had cognitive issues and low intelligence, he was competent to
stand trial and capable of engaging with counsel and aiding in his defense. Dr.
Cohen likewise concluded appellant was competent to stand trial.
      The parties agreed to submit the issue to the court based solely on the
doctors’ written reports. The court also reviewed police records. The court found
appellant competent to stand trial. The court noted that the reports and records
indicated appellant had “a good vocabulary,” had “historically . . . been able to
hold down jobs for long periods of time,” had filled out a detailed employment
application, and had proven himself capable of responding to questions and
understanding the charges against him. The court stated that these factors
contradicted Dr. Kalechstein’s conclusion that appellant was lacking in verbal
skills or the ability to understand what was happening. The court noted that
Dr. Sahgal and Dr. Cohen were both court-approved psychiatrists, while
Dr. Kalechstein was a psychologist, not among those approved by the court, and
his report did not detail his training or experience. Ultimately, the court found the
conclusions of Dr. Sahgal and Dr. Cohen more credible. Appellant contends the
                                          9
court’s finding was not supported by substantial evidence, and that his due process
rights were violated by subjecting him to trial while he was incompetent.


              2. Analysis
       There is no dispute that the due process clause of the Fourteenth
Amendment prohibits a state from trying or convicting a person who is mentally
incompetent. (People v. Ary (2011) 51 Cal.4th 510, 517; People v. Ramos (2004)
34 Cal.4th 494, 507; see § 1367, subd. (a).) A defendant is mentally incompetent
if, as a result of a mental disorder or developmental disability, he or she is unable
to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner. (§ 1367, subd. (a); People v. Lawley
(2002) 27 Cal.4th 102, 131.)9 Appellant contends the trial court’s finding of
mental competence was not supported and that trying and convicting him for the
charged offenses violated his due process rights.
       Under California law, a defendant is presumed competent unless he or she
proves the contrary by a preponderance of the evidence. (§ 1367, subd. (a); People
v. Lawley, supra, 27 Cal.4th at p. 131.)10 When a trial court’s finding of
competence is challenged on appeal, “the reviewing court determines whether
substantial evidence, viewed in the light most favorable to the verdict, supports the
trial court’s finding.” (People v. Lawley, supra, at p. 131.) The court must appoint
one or more experts to evaluate a defendant once a substantial doubt arises as to his
or her legal competence. (See § 1369, subd. (a); Rules of Court, rule 4.130
(d)(1)(A).) If the experts reach contradictory conclusions, the trial court properly

9
       Neither at trial nor on appeal has appellant argued that he suffered from a mental
disorder.
10
      As explained in People v. Ary, supra, 51 Cal.4th at p. 518, this allocation of the
burden of proof does not violate due process.

                                            10
assesses and weighs the persuasiveness of the findings based on the material from
which the opinions are fashioned and the reasoning by which the experts
progressed to their conclusions. (People v. Lawley, supra, at p. 132.) The
defendant’s behavior may also aid the court in evaluating competence. (See
People v. Ramos, supra, 34 Cal.4th at p. 507.)
      Here the trial court reviewed the experts’ reports and found the bases for
Dr. Kalechstein’s opinion undermined by the evidence of appellant’s behavior in
other aspects of his life, including his behavior with the police. The court
reasonably concluded the opinions of Dr. Cohen and Dr. Sahgal were more
credible than Dr. Kalechstein’s based on that factor and on their superior
qualifications. As the material presented to and reviewed by the court provided
support for the conclusion that appellant had sufficient mental acuity to understand
the proceedings and consult with his lawyer, the court’s finding that he was
competent to stand trial is supported by substantial evidence.


      B. Motion to Suppress Confession
             1. Background
      Prior to interviewing appellant about the allegations, Detective Shumaker
advised appellant of his Miranda rights by way of the following exchange:
Detective Shumaker: “You have the right to remain silent. Do you understand?”
[Appellant]: “Yes.” Detective Shumaker: “Anything you say may be used against
you in court. Do you understand?” [Appellant]: “Yes.” Detective Shumaker:
“You have the right to the presence of an attorney before and during any
questioning. Do you understand?” [Appellant]: “Yes.” Detective Shumaker: “If
you cannot afford an attorney, one will be appointed for you free of charge before
questioning if you want. Do you understand?” [Appellant]: “Yes.” Detective


                                         11
Shumaker: “And then do you want to talk about what happened?” [Appellant]:
“Yes.”
      The prosecution filed a trial brief seeking the admission of appellant’s
statements during the interview with Detective Shumaker. The defense objected,
contending appellant had not made an intelligent and knowing waiver of his
Miranda rights, and that the confession was coerced by a promise of freedom. To
determine its admissibility, the court watched the videotape of appellant’s
confession, heard testimony from defense expert Dr. Kalechstein and prosecution
expert Barry Hirsch, Ph.D., and reviewed reports prepared by the experts.
      Psychologist Kalechstein, who held a Ph.D. in psychology, testified that he
conducted an evaluation of appellant in 2010 and concluded appellant could not
have provided a knowing and intelligent waiver of his Miranda rights. Tests
administered by Dr. Kalechstein indicated appellant’s I.Q. was 64 or 66, which Dr.
Kalechstein believed gave him the understanding of a second or third grader. Dr.
Kalechstein expressed the opinion that the job appellant had at the Braille Institute
at the time of his arrest was a simple one, and that a person with a low I.Q. could
function well in the right job environment. In connection with his evaluation, Dr.
Kalechstein had reviewed appellant’s school records, which indicated poor and
declining academic performance; he had not reviewed any of appellant’s job
applications or his prior job history. Nor had he reviewed the transcript of the
interview with Detective Shumaker or any police reports.
      During his evaluation, Dr. Kalechstein administered a test in which he read
appellant a version of the Miranda waiver and asked him to explain each sentence.
He concluded appellant did not understand most of the components of his Miranda




                                         12
rights.11 Dr. Kalechstein also administered tests geared toward determining
whether appellant was malingering, and concluded that appellant was trying his
best and not pretending to be less functional than he was. Dr. Kalechstein
expressed the opinion that appellant regularly engaged in “masking,” pretending to
understand a question when he did not by repeating the words of the question in his
answer. Dr. Kalechstein further expressed the opinion that appellant’s attempt to
deflect blame did not reflect a mature understanding of his situation, and that a
young child would do the same if caught doing something wrong.
      The prosecution expert, Dr. Hirsch, who held a Ph.D.in psychology,
evaluated appellant and concluded that he could understand his Miranda rights and
knowingly waive them. Dr. Hirsch expressed the opinion that appellant had been
malingering with Dr. Kalechstein. Dr. Hirsch had read the transcript of the
interview and the police reports and reviewed appellant’s employment history. Dr.
Hirsch based his opinion on how appellant functioned during the evaluation, in the
interview with Detective Shumaker, and in the real world. During the evaluation,
appellant appeared to have no difficulty communicating with or understanding the
doctor. In the interview with the detective, appellant’s answers were coherent and
responsive. There was never a point when appellant seemed to misunderstand the
questions being asked and he appeared to have no problems with memory. He
provided reasons for Crystal to be lying or mistaken, such as her use of
psychoactive medication. More important, appellant’s statement that he was
“digging [his] own grave” made clear that he knew he had made incriminating

11
       Dr. Kalechstein did not use the same version of the Miranda warnings as
Detective Shumaker. For example, Dr. Kalechstein asked if defendant understood the
statement “‘“You are entitled to consult with an attorney before interrogation and to have
an attorney present at the time of the interrogation.”’” In advising appellant, Detective
Shumaker had used a different phrase: “You have the right to the presence of an attorney
before and during any questioning.”

                                           13
admissions. Dr. Hirsch detected no evidence of masking. With respect to real
world functioning, the fact that appellant was able to learn Braille at the level of a
second grader indicated a higher level of intellect than measured by Dr.
Kalechstein, as did his ability to hold jobs as a cook, cashier and courier, and to
navigate to and from his jobs without a car. Dr. Hirsch attributed appellant’s
declining academic performance to his regular use of marijuana.
      The court denied the motion to exclude the admission. Having viewed the
videotape of appellant’s confession, the court noted that appellant clearly
understood difficult words such as “dehydrated,” “sodomy,” “sodomize[],”
“vagina,” and “anal.” Appellant came across as a normal person with an average
I.Q. The court specifically found appellant’s statements about digging himself a
grave and about Crystal’s accusations arising from her use of Xanax indicated a
certain amount of sophistication. The court further concluded that appellant’s
ability to hold down his different jobs and to learn elementary Braille were
indications of a higher level of intellectual ability than the I.Q. tests revealed. The
court reviewed the test administered by Dr. Kalechstein to determine appellant’s
understanding of the Miranda warning, and pointed out an alternate interpretation
to masking, namely, that appellant truthfully stated that he understood the
admonitions.
      With respect to possible coercion, the court found the detective’s comment,
“the truth will set you free” was a general statement about relieving one’s
conscience rather than a promise of freedom. The court concluded that the
confession was not coerced. Appellant contends the court erred in finding the
Miranda waiver knowing and intelligent and the interview statements uncoerced.




                                          14
             2. Analysis
                    a. Knowing and Intelligent Waiver
      “Under the familiar requirements of Miranda, designed to assure protection
of the federal Constitution’s Fifth Amendment privilege against self-incrimination
under ‘inherently coercive’ circumstances, a suspect may not be subjected to
custodial interrogation unless he or she knowingly and intelligently has waived the
right to remain silent, to the presence of an attorney, and to appointed counsel in
the event the suspect is indigent.” (People v. Sims (1993) 5 Cal.4th 405, 440.) The
prosecution bears the burden of demonstrating that a defendant who makes a
statement in the absence of counsel knowingly and intelligently waived the
privilege against self-incrimination and the right to counsel. (People v. Peevy
(1998) 17 Cal.4th 1184, 1192.)
      “[I]n order to determine whether a defendant voluntarily, knowingly, and
intelligently has waived his Miranda rights, a court analyzing the question must
consider two distinct components: ‘First, the relinquishment of the right must have
been voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception. Second, the waiver must have
been made with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it. Only if the “totality of the
circumstances surrounding the interrogation” reveals both an uncoerced choice and
the requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived. [Citations.]’” (People v. Whitson (1998) 17
Cal.4th 229, 247, quoting Moran v. Burbine (1986) 475 U.S. 412, 421.)
      “‘In considering a claim that a statement or confession is inadmissible
because it was obtained in violation of a defendant’s rights under [Miranda], we
accept the trial court’s resolution of disputed facts and inferences, and its
evaluation of credibility, if supported by substantial evidence.’” (People v.
                                          15
Whitson, supra, 17 Cal.4th at p. 248, quoting People v. Wash (1993) 6 Cal.4th 215,
235-236.) Although appellate courts “‘independently determine whether, from the
undisputed facts and those properly found by the trial court, the challenged
statements were illegally obtained [citation],” we “‘“give great weight to the
considered conclusions” of a lower court that has previously reviewed the same
evidence.’” (Ibid.)
      With regard to appellant’s reported lack of mental acuity, a low I.Q. does not
by itself represent “‘“a proper basis to assume lack of understanding,
incompetency, or other inability to voluntarily waive the right to remain silent
under some presumption that the Miranda explanation was not understood.”’”
(People v. Lewis (2001) 26 Cal.4th 334, 384.) Instead, a defendant’s intellectual
level is merely a factor to be considered together with all other factors surrounding
the waiver. (People v. Jenkins (2004) 122 Cal.App.4th 1160, 1171; In re Norman
H. (1976) 64 Cal.App.3d 997, 1001; U.S. v. Crews (9th Cir. 2007) 502 F.3d 1130,
1140.)
      Here, although the record clearly indicates that appellant was advised of and
waived his Miranda rights prior to being interviewed by Detective Shumaker, he
contends the waiver was not knowing and intelligent. Dr. Hirsch evaluated
appellant and concluded he was able to understand his rights and knowingly and
intelligently waive them. Dr. Hirsch based his conclusion on appellant’s ability to
function in the real world and on his ability to understand and communicate with
the detective in the interview and with the doctor in the evaluation. In ruling the
confession admissible, the court relied on Dr. Hirsch’s opinion and on the court’s
own review of the interview tape.12 The court saw nothing in appellant’s behavior
or demeanor to suggest a debilitating level of mental impairment or inability to
12
      The record reflected that Dr. Kalechstein had not watched the interview prior to
expressing his opinion concerning the waiver.

                                           16
understand basic legal concepts. To the contrary, the interview reflected an
understanding of language, including some difficult words. Moreover, as the court
observed, appellant’s statement about digging his own grave and his attempt to
undermine Crystal’s credibility by informing the detective of her mental health
issues and use of Xanax reflected that he understood his legal predicament and was
attempting to create skepticism about the accusations.
      In his brief, appellant focuses on the report and testimony of
Dr. Kalechstein, who expressed the opinion that appellant’s lower than average
I.Q. rendered him unable to comprehend the meaning and consequences of the
waiver and, in particular, on the test Dr. Kalechstein administered to determine
appellant’s understanding of the various Miranda admonitions. Appellant
contends “the defense presented objectively verifiable evidence that [appellant]
. . . did not understand key components of the rights he allegedly waived” and that
the trial court “ignored his inability to understand the unfamiliar concepts
contained in the Miranda warnings as shown by his poor performance on the . . .
Miranda test.” The record reflects that the court did not ignore the test, but
reviewed it and the supporting data carefully. As the court stated, appellant’s
actual responses indicated an understanding of the admonitions. It was
Dr. Kalechstein’s interpretation of those responses that led him to opine that
appellant was “masking,” pretending to understand words and concepts he did not.
The court reasonably concluded otherwise based on Dr. Hirsch’s opinion, the
underlying data, appellant’s ability to comprehend the detective’s questions during
the interview, and his ability to successfully maneuver in the job market and other
real world settings. The court’s conclusions were reasonable and supported by
substantial evidence.




                                          17
                    b. Coercion
      A confession is considered coerced or involuntary if it was “‘“‘extracted by
any sort of threats’”’” or “‘“‘obtained by any direct or implied promises.’”’”
(People v. Neal (2003) 31 Cal.4th 63, 79.) Pointing to Detective Shumaker’s
statement that “the truth will set you free,” appellant contends the detective
coerced the confession by impliedly promising him freedom if he admitted abusing
Crystal.
      Determining whether a statement is voluntary or coerced “does not turn on
any one fact, no matter how apparently significant, but rather on the ‘totality of
[the] circumstances.’” (People v. Neal, supra, 31 Cal.4th at p. 79.) The ultimate
issue presented is “whether a defendant’s will was overborne by the circumstances
surrounding the giving of a confession.” (People v. Thomas (2012) 211
Cal.App.4th 987, 1008.) In making this determination, courts consider “the nature
of the interrogation and the circumstances relating to the particular defendant.”
(People v. Dykes (2009) 46 Cal.4th 731, 752.) Among the specific factors to be
considered are “‘“‘the length of the interrogation [citation]; its location [citation];
[and] its continuity’. . . .”’” (Ibid.) With respect to the defendant’s circumstances,
the relevant factors are “‘“‘the defendant’s maturity [citation]; education [citation];
physical condition [citation]; and mental health.’”’” (Ibid.)
      The interview at issue here was brief and free from any element of physical
intimidation. There was no evidence that appellant was in poor physical condition.
His argument that the confession was coerced is based solely on the contention that
due to his limited intellectual capacity he viewed the detective’s statement as a
promise of leniency. As the trial court pointed out, however, the statement at issue
referred to clearing one’s conscience. That appellant did not mistake the
detective’s meaning is made evident by the fact that subsequent to the detective’s
statement, appellant repeatedly asked if there was a way to work things out and if
                                           18
the detective could talk to the DA. From these statements, it is clear that he
understood the detective had made no promise of literal freedom.


       C. Failure to Instruct on Lesser Offense
               1. Background
       With respect to count one, the jurors were instructed pursuant to CALCRIM
No. 1123: “The defendant is charged in count 1 with aggravated sexual assault of
a child who was under the age of 14 years and at least seven year younger than the
defendant in violation of Penal Code section 269(a). To prove that the defendant is
guilty of this crime, the People must prove that: [¶] 1. The defendant committed
sodomy on another person; and [¶] 2. When the defendant acted, the other person
was under the age [of] 14 years and was at least seven years younger than the
defendant. To decide whether the defendant committed sodomy please refer to the
separate instructions that I will give you on that crime.” The only subsequent
definition of sodomy given by the court was in connection with the third count for
sodomy by force, in which sodomy was defined as “any penetration no matter how
slight of the anus of one person by the penis of another person. Ejaculation is not
required.”13
       During deliberations, after the jury had asked a series of questions about
count three, defense counsel pointed out that aggravated sexual assault of a child as
defined by section 269, subd. (a)(3) and CALCRIM No. 1123 requires more than



13
       Because that instruction was given in connection with the crime of forcible
sodomy, it went on to state: “In order to consent, a person must act freely and voluntarily
and know the nature of the act. An act is accomplished by force if a person uses enough
physical force to overcome the other person’s will.” In the original discussion of the
instructions, defense counsel agreed that appellant’s position was that the sexual acts did
not take place at all, not that Crystal consented.

                                            19
penetration, but also requires an element of force.14 The court agreed that the
instruction given should have required the jury to find sodomy by force and called
the jury back into court to amend the instruction on count one. When the jurors
arrived, they gave the court a note stating they had reached verdicts on counts one
and two, and were hung on count three. The court informed the jury that the
instruction on count one contained a mistake. The court explained the instruction
“previously read ‘the defendant committed sodomy on another person.’ It now
reads, ‘and you must find, to find the defendant guilty[,] the defendant committed
sodomy by force on another person.’”15 The court went on to give further
instruction on the meaning of the term “‘force.’” After hearing this, one juror
asked if there was a separate offense of “sodomy of a minor.” The court stated that
was a good question and that it would be answered after conference with counsel.
       After the jurors returned to deliberations, the court and counsel tentatively
agreed the jury should be instructed on the lesser offense of sodomy without force
of a child under the age of 14 under section 286, subdivision (c)(1).16 Before


14
       Section 269, subdivision (a)(3) defines aggravated sexual assault on a child as
sodomy in violation of section 286 subdivision (c)(2), (c)(3), or (d). Subdivision (c)(2) of
section 286 requires the act to be accomplished “by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury.” Subdivision (c)(3) of section
286 requires the act to be accomplished “by threatening to retaliate in the future against
the victim or any other person . . . .” Subdivision (d) of section 286 requires the act to be
done “in concert with another person.”
15
       The court also read the entire revised instruction to the jurors and sent a copy into
the jury room.
16
        Section 286, subdivision (c)(1) provides that “[a]ny person who participates in an
act of sodomy with another person who is under 14 years of age and more than 10 years
younger than he or she shall be punished by imprisonment in the state prison for three,
six, or eight years.” CALCRIM No. 1090 provides that to prove the defendant guilty of
this crime, “the People must prove that: [¶] 1. The defendant participated in an act of
sodomy with another person; [¶] AND 2. At the time of the act, the other person was
under the age of 14 years and was at least 10 years younger than the defendant.”

                                             20
receiving any additional instructions, the jurors sent out a note stating they were
hung on counts one and three. Almost immediately thereafter, however, the jurors
sent out a note stating they had reached a verdict on count one. The court
concluded that the section 286, subdivision (c)(1) offense was not a lesser included
offense and that there was no requirement that the court instruct on it sua sponte.17
In view of the fact that the jurors had reached a verdict on count one, it did not
instruct them further. Appellant contends the court committed reversible error in
failing to instruct the jury on the offense of sodomy of a child under the age of 14
(§ 286, subd. (c)(1)) as a lesser included offense of aggravated sexual assault of a
child under the age of 14 (§ 269, subd. (a)(3)).


             2. Analysis
      A trial court has a duty to instruct on a lesser included offense when there is
sufficient evidence in the record to merit consideration by the jury that the
defendant is guilty of only the lesser offense. (See, e.g., People v. Breverman
(1998) 19 Cal.4th 142, 162.) “An offense is necessarily included in another if
. . . the greater statutory offense cannot be committed without committing the
lesser because all of the elements of the lesser offense are included in the elements
of the greater.” (People v. Hughes (2002) 27 Cal.4th 287, 365.)
      At the time the act in count one was allegedly committed (sometime
between April 1997 and April 1998), section 286, subdivision (c)(1) provided
punishment, as it does today, for “any person who participates in an act of sodomy

17
       The court based its conclusion on the fact that section 286, subdivision (c)(1)
requires that the victim be more than 10 years younger than the perpetrator, whereas
section 269, subdivision (a)(3) requires that the victim be more than seven years younger
than the perpetrator. As will be seen, in reaching this conclusion, the court mistakenly
relied on the current version of section 269, which had been revised with respect to the
age requirement subsequent to the time appellant committed the offense.

                                           21
with another person who is under 14 years of age and more than 10 years younger
than he or she . . . .” During the relevant timeframe, former section 269,
subdivision (a) similarly provided a penalty for commission of certain types of
sexual acts, including forcible sodomy, for “[a]ny person who commits any of the
. . . acts upon a child who is under 14 years of age and 10 or more years younger
than the person . . . .”18 (Stats. 1994, 1st Ex. Sess., 1993-1994, ch. 48, § 1.) As
both parties acknowledge in their briefs, the court relied on the language of the
newer version of section 269 in concluding that section 286, subdivision (c) was
not a lesser included offense of the crime charged in count one. The parties do not
dispute that under the version of section 269 in effect at the time of the alleged
offenses, section 286, subdivision (c)(1) was a lesser included offense.
Respondent, however, disputes the existence of evidence to support a finding that
appellant committed only the lesser and not the greater offense.
      We agree there was no evidence presented to support the section 286,
subdivision (c)(1) offense, assuming it was a lesser included offense of the charged
crime.19 The force needed to support a conviction for forcible sexual penetration
need not be greater than the force needed to accomplish the act. (In re Asencio
(2008) 166 Cal.App.4th 1195, 1205.) Crystal was eight years old, an age at which
the ability to initiate or consent to a sexual act is nonexistent. She was asleep when


18
        Section 269 was amended in 2006 and currently provides a penalty for “[a]ny
person who commits any of the [enumerated] acts upon a child who is under 14 years of
age and seven or more years younger than the person . . . .” (Stats. 2006, ch. 337, § 6,
italics added.)
19
       We note that even under the applicable version of section 269, it was technically
possible to commit that crime without committing the section 286, subdivision (c)(1)
crime. Former section 269 was violated when the victim was 10 or more years younger
than the perpetrator. Section 286, subdivision (c)(1) is violated when the victim is more
than 10 years younger. Thus, were the victim exactly 10 years younger, section 269
would be violated but section 286, subdivision (c)(1) would not.

                                            22
the act alleged in count one began and suffered from a physical condition that
made her weak. Appellant was a grown man in his 20’s when he climbed into her
bed, removed or pushed aside her clothing, placed his adult body on top of her, and
penetrated her anally with his penis. During the entirety of the act, she was pinned
to the bed, immobilized. Crystal testified that she protested in the only way she
could, by crying and screaming. But whether or not the jury believed that
testimony, the evidence established that the act could only have been accomplished
by use of considerable force. The defense did not suggest otherwise. Rather it
denied the incident ever happened. Accordingly, the court did not err in failing to
instruct on the lesser offense of sodomy of a minor under section 286, subdivision
(c)(1).
          Moreover, even had the court committed instructional error, “in a noncapital
case, error in failing sua sponte to instruct, or to instruct fully, on all lesser
included offenses and theories thereof which are supported by the evidence [is]
reviewed for prejudice . . . under Watson.” (People v. Breverman, supra, 19
Cal.4th at p. 178.)20 Examining the entire record, we conclude it is not reasonably
probable that any error affected the outcome. The evidence that appellant

20
       As the court explained in Breverman, it cannot be said that an erroneous failure to
instruct on a lesser included offense is necessarily prejudicial: “[T]he sua sponte duty to
instruct on a lesser included offense arises if there is substantial evidence the defendant is
guilty of the lesser offense, but not the charged offense. [Citation.] . . . In deciding
whether evidence is ‘substantial’ in this context, a court determines only its bare legal
sufficiency, not its weight. [Citation.] [¶] Appellate review under Watson, on the other
hand, takes an entirely different view of the evidence. Such posttrial review focuses not
on what a reasonable jury could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that evaluation, an appellate court
may consider, among other things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.” (People v. Breverman, supra, 19 Cal.4th at
p. 177.)

                                             23
repeatedly and regularly sodomized Crystal, the first time when she was eight, was
overwhelming. Appellant essentially admitted it when confronted by Monica and
John, and expressly admitted it in the interview with Detective Shumaker.
Crystal’s testimony was consistent in all significant details with her prior reports.
The defense did not argue that insufficient force was used in perpetrating count one
or that a lesser offense occurred, but that the act did not occur at all. Appellant’s
attempts to persuade the jurors that the entire matter had been fabricated was to no
avail. We find it implausible that reasonable jurors could conclude that the force
used to subdue and sodomize a physically weak child of eight was insufficient to
support the force necessary to convict appellant of the offense charged in count
one.


       D. Lay Testimony on Appellant’s Intellectual Capacity
             1. Background
       During trial, the court sustained an objection to a question defense counsel
asked Detective Shumaker concerning whether during his investigation, he learned
that both Crystal and appellant were “mentally challenged.” The court ruled that
lay witnesses could testify about concrete observations that might indicate a mental
condition, but not about any specific diagnosis. During defense counsel’s cross-
examination of Aaron, he asked if Aaron considered appellant “a little bit mentally
slow.” The court sustained an objection and at a sidebar, suggested an Evidence
Code section 402 hearing. At the hearing, the court stated that inquiry could
properly be made of family members concerning appellant’s level of
comprehension and understanding of everyday conversations and instructions, as
long as the witnesses did not testify to conclusions about his mental capacity.
After the hearing, while Aaron was still in the courtroom, defense counsel


                                          24
informed the court he did not wish to recall Aaron or ask him any further
questions.
       During defense counsel’s cross-examination of John, counsel asked whether
appellant had trouble understanding things he was told. John responded that
appellant was not the “best conversationalist” and had not gone far in school.
Defense counsel inquired whether appellant had trouble understanding anything
John had said to him. The court sustained an objection to the question as phrased.
Counsel did not re-phrase it but went on to another topic. John later testified in
response to questioning from the prosecution that he had trouble understanding
appellant sometimes. John further testified that appellant dressed himself, got
himself to work, held down various jobs, and handled his own money John
subsequently testified in response to questioning from the defense that appellant
was unable to obtain a driver’s license because he “wasn’t catching on to the laws
of the streets.” Appellant contends the trial court erred in limiting the opinion
testimony of Aaron and John concerning appellant’s intellectual ability.


              2. Analysis
       Generally, a lay witness’s testimony in the form of an opinion is limited to
opinions “[r]ationally based on the perception of the witness” and “[h]elpful to a
clear understating of his [or her] testimony.” (Evid. Code, § 800.) “A lay witness
may testify in the form of an opinion only when he cannot adequately describe his
observations without using opinion wording.” (People v. Sergill (1982) 138
Cal.App.3d 34, 40; see People v. Melton (1988) 44 Cal.3d 713, 744 [“A lay
witness is occasionally permitted to express an ultimate opinion based on his
perception, but only where ‘helpful to a clear understanding of his testimony
. . . .’”].) “‘Whenever feasible “concluding” should be left to the jury.’” (People v.
Sergill, supra, at p. 40.)
                                          25
      We review a trial court’s ruling on the admission and exclusion of evidence
under the abuse of discretion standard. (People v. Thompson (2010) 49 Cal.4th 79,
128.) The erroneous exclusion of evidence requires reversal only where it is
reasonably likely that the outcome of the case would have been different had the
evidence been admitted. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170; see
People v. Watson (1956) 46 Cal.2d 818, 836.)
      Here, the court permitted Aaron and John to testify concerning their personal
observations of appellant and his mental functioning, as long as they did not do so
in a conclusory fashion. This did not represent an abuse of discretion. Aaron and
John were competent to relate events they had observed, and were permitted to do
so. Indeed, John testified he believed appellant understood what he had done when
confronted. Neither, however, was competent to diagnose appellant or express an
opinion concerning his mental condition. Moreover, any error in this regard was
necessarily harmless in view of the evidence. Crystal’s testimony was confirmed
not only by appellant’s own statements, but also by his behavior when confronted
by John in 2010 and by Monica years earlier. The evidence was overwhelming
that the sexual abuse occurred and that appellant knowingly acknowledged his
conduct.


      E. Denial of Request for Continuance
             1. Background
      Shortly after the court ruled appellant’s confession to Detective Shumaker
was admissible, defense counsel stated he wished to call Dr. Kalechstein to testify
with respect to masking. The court stated there would need to be an Evidence
Code section 402 hearing before the testimony could be admitted. The court
subsequently ruled that it would be appropriate for an expert to testify regarding
the factors that could impact the reliability of a confession, including the
                                          26
confessing party’s mental capacity, and that an expert could also properly testify as
to appellant’s comprehension level to assist the jury in determining the reliability
of the confession. During the hearing, defense counsel reported that
Dr. Kalechstein, whom he intended to call to testify concerning these matters, was
unavailable until the following Monday, a week later. Counsel requested a
continuance, further stating that Dr. Kalechstein would need to perform additional
research in the area of confessions and the factors that impact the reliability of
confessions.
      Preliminarily, the court observed that counsel’s statement regarding
Dr. Kalechstein’s need to prepare raised doubt as to whether the psychologist
would qualify as an expert in the field of confession reliability. The court went on
to deny the request as untimely, pointing out that the relevance of evidence relating
to appellant’s mental capacity and the reliability of the confession was apparent
once the court ruled the confession admissible, and counsel could have informed
the court of Dr. Kalechstein’s scheduling conflicts before the jury was sworn.
Alternatively, counsel could have asked the court to order Dr. Kalechstein to return
when he was in court to testify at the pretrial hearing on the admissibility of the
interview. The court further noted that during voir dire, some of the jurors had
revealed commitments that would interfere with their ability to return after a
continuance, and that putting the trial over would result in the loss of jurors. The
court also pointed out that other evidence had been presented relevant to
appellant’s mental capacity and the reliability of the confession. Appellant
contends the trial court abused its discretion in refusing the request for
continuance.




                                          27
             2. Analysis
      “‘The granting or denial of a motion for continuance in the midst of a trial
traditionally rests within the sound discretion of the trial judge who must consider
not only the benefit which the moving party anticipates but also the likelihood that
such benefit will result, the burden on other witnesses, jurors and the court and,
above all, whether substantial justice will be accomplished or defeated by a
granting of the motion. In the lack of a showing of an abuse of discretion or of
prejudice to the defendant, a denial of his motion for a continuance cannot result in
a reversal of a judgment of conviction. [Citations.]’” (People v. Zapien (1993) 4
Cal.4th 929, 972, quoting People v. Laursen (1972) 8 Cal.3d 192, 204.) To
establish good cause for a continuance in order to secure the presence of a witness,
a defendant has the burden of “showing that he had exercised due diligence to
secure the witness’s attendance, that the witness’s expected testimony was material
and not cumulative, that the testimony could be obtained within a reasonable time,
and that the facts to which the witness would testify could not otherwise be
proven.” (People v. Howard (1992) 1 Cal.4th 1132, 1171.)
      Defense counsel did not establish the materiality of Dr. Kalechstein’s
proposed testimony. It appeared from counsel’s comments that the psychologist
was not an expert on the reliability of confessions. (Cf. People v. Page (1991) 2
Cal.App.4th 161, 180-182 [expert in field of persuasion, interpersonal
communication, and conformity was knowledgeable about studies indicating
people’s propensity to construct scenarios to link disparate elements together when
confronted with seemingly incontrovertible evidence that contradicts their
memories].) In addition, as the trial court noted, counsel was not diligent, either in
informing the court of Dr. Kalechstein’s scheduling conflicts prior to swearing the
jury or in seeking the court’s assistance at the prior hearing to secure
Dr. Kalechstein’s future appearance. Finally, the court’s concern about the affect a
                                          28
multi-day continuance would have on the ability to retain the jurors was a
legitimate one. Under these circumstances, the court did not abuse its discretion in
denying the request for continuance.
      Appellant alternatively contends the denial of the continuance deprived him
of his due process right to present a defense. “In deciding whether the denial of a
continuance was so arbitrary as to violate due process, the reviewing court looks to
the circumstances of each case . . . .” (People v. Courts (1985) 37 Cal.3d 784,
791.) “‘[N]ot every denial of a request for more time . . . violates due process even
if the party fails to offer evidence . . . .’” (People v. Howard, supra, 1 Cal.4th at
pp. 1171-1172.) Here, the court’s decision was not arbitrary, but based on the need
to prevent the loss of jurors sure to result from an almost week-long continuance in
the middle of a trial. The court also considered the importance of the evidence and
whether similar evidence was available through other channels. As noted, it was
by no means clear that Dr. Kalechstein would qualify as an expert in the area or
that his testimony would be helpful. Family members offered an alternative
manner of placing appellant’s mental issues before the jury. The jury had before it
the actual videotape of appellant’s confession and could make its own
determination whether appellant was truthfully admitting culpability or going
along with the detective’s version of events. Under these circumstances, we
discern no error affecting appellant’s federal constitutional rights.


      F. Ineffective Assistance of Counsel
      Appellant contends trial counsel was incompetent or ineffective for failing to
arrange for Dr. Kalechstein’s attendance at trial. In order to establish ineffective
assistance of counsel sufficient to overturn a conviction, the defendant must show:
“(1) deficient performance under an objective standard of professional
reasonableness and (2) prejudice under a test of reasonable probability of an
                                          29
adverse effect on the outcome. [Citation.]” (People v. Berryman (1993) 6 Cal.4th
1048, 1081, overruled on a different ground in People v. Hill (1998) 17 Cal.4th
800.) “On direct appeal, a claim of ineffective counsel cannot be established by
mere speculation regarding the ‘likely’ testimony of potentially available
witnesses.” (People v. Medina (1995) 11 Cal.4th 694, 773.) The defendant is
required to affirmatively show that the omitted evidence would have made a
difference; “[w]e cannot assume from a silent record that particular witnesses were
ready, willing and able to give mitigating testimony, nor can we speculate
concerning the probable content or substance of such testimony.” (Ibid.) We
cannot conclude there was a reasonable probability that Dr. Kalechstein’s
testimony would have affected the outcome of the trial where neither his
qualifications nor his expected testimony were clear.


      G. CALCRIM No. 1120
             1. Background
      With respect to count two, continuous sexual abuse of a child under the age
of 14 (§ 288.5, subd. (a)), the jury was instructed in accordance with CALCRIM
No. 1120 as follows: “To prove that the defendant is guilty of this crime, the
People must prove that: 1. the defendant lived in the same home with the minor
child; [¶] 2. the defendant engaged in three or more acts of substantial sexual
conduct or lewd and lascivious conduct with the child; [¶] 3. three or more months
passed between the first and last acts; and, [¶] 4. the child was under the age of 14
years at the time of the acts. [¶] Substantial sexual conduct means oral copulation
or masturbation of either the child or the perpetrator or penetration of the child’s or
perpetrator’s vagina or rectum by the other person’s penis or by any foreign object.
[¶] Lewd and Lascivious conduct is any willful touching of a child accomplished
with the intent to sexually arouse the perpetrator or the child. The touching need
                                          30
not be done in a lewd or sexual manner. Contact with a child’s bare skin or private
parts is not required, any part of the child’s body or the clothes the child is wearing
when [sic, should be ‘may be’] touched.” (Italics added.) The court further
instructed the jurors: “Actually arousing, appealing to or gratifying the lust,
passion or sexual desires of the perpetrator or child is not required for lewd and
lascivious conduct.”
      Based on the italicized language, appellant contends CALCRIM No. 1120 is
internally inconsistent and misleading because the phrase “‘[t]he touching need not
be done in a lewd or sexual manner’” negates the requirement that the lewd and
lascivious conduct be “accomplished with the intent to sexually arouse the
perpetrator or the child.” He further contends the instruction is impermissibly
argumentative because it emphasizes facts the prosecution is not required to prove
-- that the conduct actually aroused or gratified the perpetrator or victim.


             2. Analysis
                    a. Lewd or Sexual Manner
      In People v. Cuellar (2012) 208 Cal.App.4th 1067, this court explained that
the phrase at issue -- “[t]he touching need not be done in a lewd or sexual manner”
-- was apparently intended to express “the long-established rule that touching of a
sexual organ is not required for violation of the statute” and acknowledged that the
language was “unfortunate and possibly confusing.” (Id. at pp. 1070-1071.) We
further stated: “It may be that, ‘read as a whole’ the sentence does no harm,
although we think that is subject to question. It certainly does no good.” (Id. at
p. 1071.) We urged the Judicial Council’s Advisory Committee on Criminal Jury
Instructions to “reconsider the language of this sentence and propose new language
that simply states that the touching need not be made to an intimate part of the
victim’s body, so long as it is done with the required intent” and explained “[i]f
                                          31
that revision is made the two sentences would complement each other and any
arguable inconsistency would be removed.” (Id. at pp. 1071-1072.) We
concluded, however, that the instruction as given did not mislead the jury in the
case before us because “virtually all of the touching described in the testimony was
sexual, rather than incidental, in nature” and “the evidence of defendant’s guilt was
overwhelming.” (Id. at p. 1072.)
      The same is true here. The charges were based primarily on appellant’s
repeated sodomy of his young half-sister. There was little evidence of incidental
touching. Indeed, Crystal denied that she ever touched appellant’s genitals or that
he touched hers. Crystal described the final incident as appellant touching her
buttocks while masturbating, but assuming the jury based any portion of the verdict
on this testimony, there was no question concerning appellant’s lewd and
lascivious intent. The prosecutor did not argue that innocent touching could
support the offense. To the contrary, she advised the jury that sexual intent was
required to convict based on the lewd and lascivious acts of touching and kissing.
Accordingly, we conclude any error in the language of the instruction was
harmless.


                    b. Argumentative
      Appellant contends that the language of CALCRIM No. 1120 was
impermissibly argumentative. He focuses particularly on the language advising the
jury that certain matters need not be proven to establish the offense, such as that
the actions “[a]ctually arous[ed], appeal[ed] to or gratif[ied[ the lust, passions or
sexual desires of the perpetrator or child . . . .” “A trial court has no sua sponte
duty to revise or improve upon an accurate statement of law without a request from
counsel [citation], and failure to request clarification of an otherwise correct
instruction forfeits the claim of error for purposes of appeal . . . .” (People v. Lee
                                           32
(2011) 51 Cal.4th 620, 638.) The challenged provisions represent an accurate
statement of the law. Appellant failed to object to the language of the instruction.
Accordingly, he has forfeited this issue on appeal. (Ibid.; People v. Stone (2008)
160 Cal.App.4th 323, 330-331.)
      Moreover, we disagree that an instruction is necessarily argumentative when
it informs the jurors of matters that need not be proven. “An argumentative
instruction ‘invite[s] the jury to draw inferences favorable to [a party] from
specified items of evidence on a disputed question of fact . . . .’” (People v. Flores
(2007) 157 Cal.App.4th 216, 220, quoting People v. Wright (1988) 45 Cal.3d 1126,
1135 [rejecting contention that assault instruction informing jury that prosecution
need not prove that touching caused pain or injury was impermissibly
argumentative].) Here, the instruction merely assisted the jury in understanding
difficult and unfamiliar concepts and corrected misconceptions a lay person might
have about sexual gratification or arousal being an element of a sexual abuse
crime. It did not highlight any evidence or invite the jury to draw improper
inferences favorable to the prosecution. Accordingly, we reject the contention that
the instruction was unnecessarily argumentative.


      H. Sentencing Issues
             1. Discretion to Impose Concurrent Sentence
      The prosecution’s sentencing memorandum stated that “[t]he crimes of
which [appellant] was convicted in this case require consecutive sentencing,”
citing section 667.6, subdivision (d). After imposing a sentence of 15 years to life
on count one, the court imposed a consecutive upper term sentence of 16 years on
count two. The court stated it was doing so “pursuant to the Penal Code.”
      Section 667.6, subdivision (d), provides that “[a] full, separate, and
consecutive term shall be imposed for each violation of any offense specified in
                                          33
subdivision (e) if the crimes involve separate victims or involve the same victim on
separate occasions.” The crime of continuous sexual abuse of a child, a violation
of section 288.5, is specified in section 667.6, subdivision (e)(6). However, the
parties agree that section 288.5 was added to this provision in 2006, and that
during the relevant period (from April 1998 to April 2003), the Penal Code did not
require mandatory consecutive sentencing for this offense. Accordingly, it appears
the trial court did not exercise discretion in imposing the consecutive sentence on
count two.
       “Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. [Citations.] A court which is
unaware of the scope of its discretionary powers can no more exercise that
‘informed discretion’ than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s record. [Citation.]”
(People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) When a court may have
been influenced by an erroneous understanding of the scope of its sentencing
powers, remand for reconsideration of the sentence imposed is appropriate. (Ibid.;
see People v. Hiscox (2006) 136 Cal.App.4th 253, 257-258 [ex post facto clauses
of United States and California Constitutions preclude sentencing under laws
inflicting greater punishment enacted after offense committed, and ex post facto
violation may be raised for first time on appeal].)21 Because the record indicates
the court was unaware of its discretion, we remand for reconsideration of the
sentence on count two.



21
        Because we conclude remand is required for resentencing of count two based on
the trial court’s failure to exercise discretion, we need not address appellant’s alternate
contention that the matter must be remanded because the court failed to adequately
explain its reasons for imposing consecutive terms.

                                             34
             2. Restitution Fine
      The trial court imposed a sex offender restitution fine in the sum of $500
pursuant to section 294, which permits imposition of such fine based on “the
defendant’s ability to pay.” Appellant contends substantial evidence does not
support the finding of ability to pay. In imposing the $500 fine, after initially
proposing a fine of $1,000, the court noted that “[t]ypically, the funds that are
ordered would be paid out of any money that the defendant makes while under the
custody of the Department of Corrections.” In determining ability to pay, the trial
court may properly consider the defendant’s prospective prison wages. (People v.
Hennessey (1995) 37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28
Cal.App.4th 1374, 1376-1377; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
Because the court based the amount of restitution on appellant’s future ability to
pay from prison wages, the amount of the fine was adequately supported.




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                                  DISPOSITION
      The sentence on count two is vacated and the matter is remanded for
resentencing. In all other respects, the judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              MANELLA, J.


We concur:




EPSTEIN, P. J.




SUZUKAWA, J.




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