Filed 8/8/13 P. v. Silva 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                   B239340

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. LA062814)
          v.

ALEX DA SILVA,

          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathleen Kennedy, Judge. Affirmed.
          Edward J. Haggerty, 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, Victoria B. Wilson and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
                                         ______________________________
       Defendant Alex Da Silva appeals from the judgment entered upon his jury
conviction of forcible rape (Pen. Code § 261, subd.(a)(2))1 of one victim and assault with
intent to commit rape (§ 220) of another. He raises numerous issues, none of which
warrants reversal of the judgment. We affirm.


                      FACTUAL AND PROCEDURAL SUMMARY
       Defendant, a salsa dancing champion of some television fame, taught dance
classes. In 2010, he was charged with four counts of forcible rape, two counts of assault
with intent to commit rape, sodomy or oral copulation, and two counts of sexual
penetration by a foreign object as to four different victims he met at salsa dance clubs. A
jury found defendant guilty of assault with intent to commit rape as to victim J.T. (count
6) and of forcible rape as to victim P.D. (count 7). Defendant was sentenced to a six-year
term on count 7 and a consecutive four-year term on count 6. He was ordered to pay
various fines and fees, including a $2,000 restitution fine under section 1202.4,
subdivision (b).
       Since only counts 6 and 7 are at issue in this appeal, our summary is limited to
evidence pertinent to those counts.
       1. Forcible Rape of P.D.
       P.D. took dance classes with defendant in 2002. In August of that year, she agreed
to go to dinner with him. They ended up going to his house, where at some point he
pushed her against a couch and started kissing her. She repeatedly protested, and he
eventually stopped and gave her a ride back home.
       The next day, P.D. accompanied defendant while he ran errands. They again
ended up at his house, and P.D. agreed to watch a movie in his bedroom. She did not
object when he removed his clothes and remained in his underwear. At some point
during the movie, defendant pushed P.D. down on the bed and pinned her down with his
body weight. She lay rigid, did not reciprocate, and tried to hold on to her underwear.


       1
           Statutory references are to the Penal Code, unless otherwise indicated.
                                               2
Defendant pushed it to the side and penetrated her vagina. She noticed that he was
wearing a condom. After he finished, defendant told P.D. he had to attend an audition,
got ready, and left the house. P.D. remained on the bed until defendant returned and gave
her a ride back home.
       After three weeks of no contact with defendant, P.D. again took one of his classes.
Once again, she agreed to go to defendant’s house, where he started kissing her and
invited her to watch a movie in his bedroom. She declined, called a taxi, and went home.
Some time later in 2002, defendant called P.D. on the telephone and asked her to book a
flight for him on the internet. She obliged. In 2005, P.D. told her boyfriend that
defendant had raped her; she reported the rape to police in 2009.
       At trial, P.D. offered the following explanation for her behavior: her
sisters and she had seen defendant on TV and were “starstruck.” P.D. was attracted to
defendant but did not feel ready to have sex with him. After he raped her, she remained
in his house because she was in shock and wanted to pretend the rape did not happen.
She went back to defendant’s class because she did not want to accept that defendant was
a “bad guy” and a rapist. P.D. liked defendant and even considered “just get[ting] past”
this incident if he wanted to date her. She agreed to help him book a flight on the internet
because her sister was excited defendant had called P.D., and P.D. did not want her to
know what had happened. The jury convicted defendant of forcible rape, as charged.
       2. Assault with Intent to Commit Rape of J.T.
       J.T. took salsa classes with defendant in March 2009. After the first class, he
invited her to take another class with him at a different venue. After the second class, she
accompanied him to a deserted apartment, where he “came on to [her] aggressively,” and
they had sexual intercourse. A week later, after another class, she accompanied
defendant to a different apartment, where, once again, they had sexual intercourse. Both
times, she did not intend to engage in sexual relations with defendant, but did not resist
his advances.
       Two weeks later, after defendant had returned from a salsa congress in Arizona,
J.T. told him she did not want to have sex with him any longer, and he promised they

                                             3
would just have lunch together to celebrate his birthday. Defendant picked up food and
took J.T. to the same deserted apartment to which he had taken her the first time. After
they ate, defendant pushed J.T. down onto a couch. Although she tried to push him away
and repeatedly said “no,” he managed to move her underwear to the side and push his
fingers into her vagina. He then pushed his penis against her. She noticed he had a
condom on. J.T. continued to resist and eventually, after sucking on her breasts,
defendant let her go home.
       While driving home, J.T. called a friend and told him her dance instructor had
“pinned her down and forced himself onto her.” J.T. hesitated about reporting the
incident to police because she was unsure if it was “serious enough.” She did report it
later that night and underwent a sexual assault examination. Defendant’s DNA was
found inside her bra. J.T. gave contradictory accounts as to whether defendant’s penis
penetrated her vagina. She told the nurse examiner that it had touched her only on the
outside because she was trying to avoid penetration. At trial, she testified it had
penetrated her “a little bit.” As to J.T., the jury acquitted defendant of the rape charge but
found him guilty of assault with intent to commit rape.
       3. Uncharged Rape of S.L.
       Evidence of an uncharged rape of S.L. was introduced at trial under Evidence
Code section 1108. S.L. testified that in 2009 she attended a salsa congress in Arizona,
where she participated in a workshop taught by defendant. He invited her to dinner, but
instead they ended up at her house because defendant asked to use her computer. He
eventually went into her bedroom, pulled her onto a bed, and started kissing her. She
kissed him back but did not want to go any further and told him she wanted to return to
the salsa congress. Defendant pinned her down and continued kissing her while she was
trying to push him away. Although she protested, he put on a condom, pushed her
underwear aside, and inserted his penis into her vagina. After he finished, they returned
to the salsa congress, where S.L. told a friend that defendant had raped her. She reported
the incident to police the next morning.


                                              4
       4. Rape Trauma Expert’s Testimony
       An expert in rape trauma testified to the ways in which acquaintance rape differs
from stranger rape. The former does not involve significant force, and the victims
commonly have a difficult time acknowledging that it has occurred. They tend to
minimize, distort, deny or discount it, or they blame themselves. That is so because
acquaintance rape conflicts with the core assumption that a person the victim has chosen
to trust would not betray that trust.
       The expert also testified there is “no universal response to trauma,” but the
common patterns of behavior are to freeze, flee, or fight. When victims of assault freeze
in fright, disassociate, or shut down, they may not seem distressed at all. This reaction is
the most difficult for others to understand.


                                        DISCUSSION
                                               I
       Defendant challenges the sufficiency of the evidence supporting the forcible rape
conviction on the ground that P.D.’s testimony was inherently improbable.
       On appeal, we view the evidence in the light most favorable to the judgment and
draw all reasonable inferences in its support. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.) The testimony of a single witness is sufficient to support a conviction, unless the
testimony is physically impossible or inherently improbable. (People v. Young (2005)
34 Cal.4th 1149, 1181.) To be deemed improbable, testimony accepted by the trier of
fact must be “‘so inherently incredible, so contrary to the teachings of basic human
experience, so completely at odds with ordinary common sense, that no reasonable
person would believe it beyond a reasonable doubt.’ [Citation.]” (People v. Hovarter
(2008) 44 Cal.4th 983, 996.) The falsity of such testimony ““‘must be apparent without
resorting to inferences or deductions.” [Citations.]”’ (People v. Ennis (2010) 190
Cal.App.4th 721, 728.)




                                               5
       Cases finding inherent improbability are “so rare as to be almost nonexistent.”
(People v. Ennis, supra, 190 Cal.App.4th at p. 728.) Defendant cites three such cases, all
dating back to the 1940’s and 1950’s. The cases are distinguishable.
       In People v. Casillas (1943) 60 Cal.App.2d 785, the trial court convicted the
defendant of raping his daughter. (Id. at p. 793.) On direct examination, the daughter
testified her father had sexual intercourse with her twice. On cross-examination, she
recanted and accused a boy named Manuel instead. On recross-examination, she testified
her father and the boy each had sexual intercourse with her once. (Id. at p. 792) The
appellate court reversed the conviction because the daughter had given “three separate,
distinct and contradictory versions” of the facts, so that her testimony “was, in one part or
another, perjurious.” (Id. at p. 794.) Defendant does not contend P.D.’s testimony was
perjurious on its face, and the record does not indicate that she contradicted herself in any
material way.
       In People v. Headlee (1941) 18 Cal.2d 266, the defendant was charged with
kidnapping two women and a taxi driver. He also was charged with two counts of rape,
based on his having sexual intercourse with one of the women, first in the taxicab and
then in a motel, to which all four went. (Id. at pp. 269–270.) The jury convicted the
defendant of kidnapping and rape in the motel room, but not in the taxicab. The Supreme
Court reversed, noting that to acquit the defendant of rape in the taxicab the jury must
have found the act either did not occur or occurred with the victim’s consent. In either
case, the jury could not reasonably believe the victim’s testimony that she was raped in
the motel room. (Id. at pp. 274–275.) In contrast, defendant’s conviction of forcible rape
as to P.D. was not inconsistent with his acquittal of the unrelated rape charge as to J.T.
and with the jury’s inability to reach a verdict on other unrelated charges of sexual assault
as to other victims.
       In People v. Carvalho (1952) 112 Cal.App.2d 482, the appellate court reversed the
defendant’s conviction of kidnapping his estranged wife while armed. (Id. at p. 490.) It
held the wife’s actions during the alleged kidnapping and in the month before she
reported it did not show she was afraid of the defendant. The court emphasized the many

                                              6
opportunities the wife had to escape or ask for help while she drove the defendant from
her house to his and then to a drive-in. (Ibid.) It also found significant the fact that, after
the defendant had put the gun away, she had sexual intercourse with him and helped him
bathe. (Ibid.)
       Defendant argues this case is similar to People v. Carvalho because, like the
complainant in that case, P.D. either agreed to or tacitly acquiesced to defendant’s
actions, remained in his house after the alleged rape, had further contact with him, and
delayed reporting the incident. But, as defendant acknowledges, P.D. tried to hold onto
her underwear during the alleged rape. Thus, not all her actions are consistent with
consent. Additionally, P.D.’s explanation of her subsequent conduct—that she was in
shock, wanted to pretend the rape did not happen, and sought contact with defendant to
assure herself that he was not a “bad guy” or a rapist—was not inherently incredible. The
rape trauma expert informed the jury that there is no standard response to trauma, and
that victims of acquaintance rape have a more difficult time acknowledging they have
been raped and tend to minimize or deny the incident. In light of this testimony, the jury
could infer that P.D.’s conduct, even if counterintuitive, was not inconsistent with her
rape allegation.
       Defendant, in essence, asks us to redetermine the issue of credibility and draw
from P.D.’s testimony inferences favorable to himself. We cannot do that. (See People
v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Ennis, supra, 190 Cal.App.4th at p. 732.)
                                              II
       Defendant challenges the adequacy of two jury instructions: on rape trauma and on
prior consensual sexual intercourse. The adequacy of jury instructions is subject to de
novo review. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
   A. Rape Trauma Instruction
       The jury was instructed with CALCRIM No. 1192 that “testimony about rape
trauma is not evidence that the defendant committed any of the crimes charged against
him. [¶] You may consider this evidence only in deciding whether or not an alleged rape
victim’s conduct was not inconsistent with the conduct of someone who has been raped,

                                               7
and in evaluating the believability of her testimony.” Defendant argues this jury
instruction misstates the law because rape trauma testimony is not admissible to support
the complaining witness’s credibility.
       Under People v. Bledsoe (1984) 36 Cal.3d 236, expert testimony about rape
trauma syndrome is admissible to “disabus[e] the jury of some widely held
misconceptions about rape and rape victims, so that it may evaluate the evidence free of
the constraints of popular myths.” (Id. at pp. 247–248.) In cases where the defendant
suggests “that some conduct of the victim after the incident—for example, a delay in
reporting the sexual assault—is inconsistent with her claim of having been raped,” such
testimony may be introduced to rebut this inference “by providing the jury with recent
findings of professional research on the subject of a victim’s reaction to sexual assault.”
(Id. at p. 247.) However, expert testimony may not be used to suggest that, because a
complaining witness suffers from rape trauma syndrome, the witness must have been
raped. (Id. at p. 251.)
       This reasoning was extended to the use of expert testimony on child sexual abuse
accommodation syndrome. (See People v. Bowker (1988) 203 Cal.App.3d 385, 391–
394.) Thus, psychological testimony was held admissible to rehabilitate the credibility of
a child who had retracted her molestation claim. (People v. Housley (1992) 6
Cal.App.4th 947, 956.) But to avoid prejudice to the defendant “in the event such
evidence is misused,” courts were required to give a sua sponte limiting instruction that
“(1) such evidence is admissible solely for the purpose of showing the victim’s reactions
as demonstrated by the evidence are not inconsistent with having been molested; and
(2) the expert’s testimony is not intended and should not be used to determine whether
the victim’s molestation claim is true.” (Id. at pp. 958–959.)
       Defendant acknowledges that CALCRIM No. 1192 properly instructed the jury
not to consider the rape trauma testimony as evidence that a rape actually occurred. But
he contends that by allowing the jury to consider this evidence in evaluating the
complaining witness’s credibility, the instruction effectively “permits the jurors to


                                             8
consider the expert testimony as supportive of the truth of the allegations made against
the defendant.” We disagree.
       Rehabilitating a rape victim’s credibility against unfavorable inferences based on
popular misconceptions is meant to level the playing field and help jurors evaluate a
victim’s credibility objectively. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
Defendant conflates this permissible use of expert testimony with impermissible
bolstering of a victim’s credibility about the rape allegations. CALCRIM No. 1192
clearly limits the latter use, while allowing the former. As the court noted in People v.
Housley, supra, 6 Cal.App.4th 947, the danger of misusing an expert’s testimony does
not exist where the expert testifies in general terms, and describes “behavior common to
abused victims as a class, rather than any individual victim.” (Id. at p. 959.) The expert
in this case testified about rape trauma in general terms. She did not opine that any of the
complaining witnesses suffered from rape trauma syndrome, or that because they suffered
from that syndrome, they must have been raped.
       It is unlikely that, as instructed, the jury used the expert’s general testimony about
rape trauma for any purpose other than to evaluate objectively the complaining witnesses’
credibility. We find no instructional error.
   B. Instruction on Prior Consensual Sexual Intercourse
       Defendant challenges the court’s failure to include P.D. in CALCRIM No. 1194.
The form jury instruction states: “You have heard evidence that (<insert name of
complaining witness>/Jane Doe/John Doe) had consensual sexual intercourse with the
defendant before the act that is charged in this case. You may consider this evidence
only to help you decide (whether the alleged victim consented to the charged act[s]/[and]
whether the defendant reasonably and in good faith believed that (<insert name of
complaining witness>/Jane Doe/John Doe) consented to the charged act[s]). Do not
consider this evidence for any other purpose.”
       The prosecutor argued that this instruction applies only to undisputed evidence
that a victim had prior consensual sexual intercourse with defendant. The court agreed
and modified CALCRIM No. 1194 to read as follows: “You have heard undisputed

                                               9
evidence that J.T. and F.M. [another alleged victim] had consensual sexual intercourse
with the defendant before the act that is charged in this case. You may consider this
evidence only to help you decide whether the alleged victim consented to the charged
acts and whether the defendant reasonably and in good faith believed that J.T. and F.M.
consented to the charged acts. Do not consider this evidence for any other purpose.”
Since P.D. disputed defendant’s testimony that they had only consensual sex, she was not
included in the instruction.
       CALCRIM No. 1194 derives from section 1127d, subdivision (a), which requires
a limiting instruction “if evidence was received that the victim consented to and did
engage in sexual intercourse with the defendant on one or more occasions prior to that
charged against the defendant in this case . . . .” Neither the statute nor CALCRIM
No. 1194 require that the evidence be undisputed. In the same vein, the older jury
instruction on this subject, CALJIC No. 10.61.1, expressly admonished jurors that they
should consider the evidence of prior consensual sexual intercourse for its limited
purpose only if they believed it.
       The People effectively concede the trial court erred in modifying the instruction to
apply only to undisputed evidence. They argue instead that defendant’s testimony about
having consensual “sex” with P.D. before the charged crime was too vague to establish
the two had had “sexual intercourse.” Assuming defendant’s testimony constituted
substantial evidence supporting the inclusion of P.D. in CALCRIM No. 1194, we
nevertheless agree the error was harmless because it is not reasonably probable that
defendant would have obtained a more favorable result had P.D. been included in the
instruction. (See People v. Perez (1987) 194 Cal.App.3d 525, 530, citing People v.
Watson (1956) 46 Cal.2d 818, 836.)
       Defendant argues that the failure to include P.D. in CALCRIM No. 1194 sent a
message to the jury that defendant’s testimony about having had prior consensual sex
with P.D. was not credible. But the court did not strike defendant’s testimony, and the
jury was free to consider it. The jury was admonished that it should not draw factual
suggestions from particular instructions, that it alone should judge the witnesses’

                                            10
credibility, and that it could choose to believe all, part or none of any witness’s
testimony.
       In arguments to the jury, neither side highlighted the exclusion of P.D. from
CALCRIM No. 1194. Defense counsel argued in closing that defendant’s testimony was
credible while P.D.’s rape claim bordered on the absurd. In rebuttal, the prosecutor
challenged defendant’s claim that he had only consensual sex with P.D. by emphasizing
actions that showed his use of force and her lack of consent during the alleged rape
itself—that defendant pinned P.D. down so that she could not move and that she tried to
hold up her underwear with one hand.
       Section 1127d, from which CALCRIM No. 1194 derives, sets limits on the use of
evidence of prior sexual activity because it was enacted to counter the notion that an
“unchaste woman” was more likely to have consented to sexual intercourse with the
defendant. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 222 (Arabian, J.,
concurring).) It does not require the jury to infer consent from prior conduct regardless
of evidence to the contrary. Thus, whether or not the jury believed defendant had had
consensual sex with P.D. on prior occasions, it still needed to determine if the evidence
supported an inference that she consented on the occasion giving rise to the charge
against defendant.
       The jury also was instructed with CALCRIM No. 1000 that a woman may
withdraw her consent: “A woman who initially consents to an act of intercourse may
change her mind during the act. If she does so, under the law, the act of intercourse is
then committed without her consent if: [¶] 1. She communicated to the defendant that
she objected to the act of intercourse and attempted to stop the act; [¶] 2. She
communicated her objection through words or acts that a reasonable person would have
understood as showing her lack of consent; [¶] AND 3. The defendant forcibly continued
the act of intercourse despite her objection.” Since the jury was instructed P.D. could
withdraw her consent at any time, and her actions reasonably indicated lack of consent at
the time of the charged offense, the jury could find defendant guilty of raping P.D. on the


                                              11
particular occasion, whether or not it believed P.D. had engaged in prior consensual
sexual intercourse with him.
       Any instructional error as to P.D. was also harmless because the jury found
defendant guilty of assault with intent to commit rape as to J.T., even though she was
included in CALCRIM No. 1194. That verdict indicates the evidence of prior consensual
sexual intercourse was not determinative. Defendant’s suggestion that his acquittal of the
rape charge as to J.T. had something to do with her inclusion in CALCRIM No. 1194 is
not well taken. The acquittal of the greater offense was due to the uncertainty in J.T.’s
testimony regarding penetration and had nothing to do with the issue of consent.
       We find no instructional error requiring reversal.
                                              III
       A friend of J.T.’s was allowed to testify over a hearsay objection that J.T. told him
her “dance instructor” had “pinned her down and forced himself onto her.” Defendant
argues the testimony regarding the identity of J.T.’s assailant and the details of the assault
exceeded the scope of the fresh complaint doctrine, under which it was admitted.
       Historically, the fresh complaint doctrine allowed admission of evidence that a
victim of a sexual offense had promptly complained. The doctrine was based on the
assumption that “‘[i]t is natural to expect that the victim of a crime would complain of it,
and the prosecution can show the fact of complaint to forestall the assumption that none
was made and that therefore the offense did not occur.’” (People v. Brown (1994)
8 Cal.4th 746, 756, quoting People v. Burton (1961) 55 Cal.2d 328, 351.) Although this
assumption has been discredited, evidence may still be admitted “for the nonhearsay
purpose of establishing the circumstances under which the victim reported the offense to
others . . . .” (People v. Brown, at pp. 759–760.) The evidence “should be limited to the
fact of the making of the complaint and other circumstances material to this limited
purpose.” (Id. at p. 763.) That includes evidence “demonstrating that the complaint
“‘related to the matter being inquired into, and [was] not a complaint wholly foreign to
the subject . . . .”’” (Id. at p. 756, citing People v. Burton, at p. 351.) Stating “the nature
of the offense and the identity of the asserted offender, without details, is proper.” (Ibid.)

                                              12
       The challenged testimony identified defendant, J.T.’s “dance instructor,” as the
person who pinned her down and “forced himself onto her,” a euphemistic way of saying
he perpetrated a forcible sexual act, possibly rape. This limited testimony does not
appear to exceed the scope of the fresh complaint doctrine. In any event, the trial court
would have been required to instruct the jury on the limited non-hearsay purpose for
which it was admitted, had such a request been made. (People v. Manning (2008)
165 Cal.App.4th 870, 880.) We have not been cited to a place in the record where a
request for a limiting instruction was made with regard to this evidence, or where the jury
was instructed that the evidence should not be considered for its truth.
       Any error with regard to the admission of this evidence was undoubtedly harmless
since J.T. testified at trial, and her extrajudicial statements to her friend were simply
cumulative. It is not reasonably probable that a different result would have occurred had
those statements been excluded or properly limited. (See People v. Manning, supra,
165 Cal.App.4th at p. 881 [failure to give limiting instruction is harmless error where
victim testified at trial]; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526
[admission of hearsay statements is harmless error where declarant testified at trial].)
                                              IV
       Defendant argues the trial court abused its discretion and violated his right to due
process in denying his request to continue the trial to allow the testimony of Alien
Ramirez, his girlfriend at the time of his alleged assault on J.T. In related arguments,
defendant contends that the error deprived him of his right to present a defense and to
confront witnesses, and that his counsel was ineffective in failing to present the issue
sufficiently to the trial court.
       “A continuance in a criminal case may be granted only for good cause. (§ 1050,
subd. (e).) Whether good cause exists is a question for the trial court’s discretion.
(People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court 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


                                              13
substantial justice will be accomplished or defeated by a granting of the motion.’”’
(Ibid.)” (People v. Doolin (2009) 45 Cal.4th 390, 450.)
       When a defendant seeks a continuance to secure a witness’s testimony, the
defendant has the burden of showing he or she ‘“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.’ [Citations.]”
(Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 270.) “When a witness is not
under subpoena, his or her absence generally does not constitute good cause for the
continuance of a trial [citations][.]” (Id. at p. 271; see also Pham v. Nguyen (1997)
54 Cal.App.4th 11, 17–18.)
       We review the denial of a motion for a continuance for abuse of discretion and
consider whether it is so arbitrary as to deny due process. (People v. Riccardi (2012)
54 Cal.4th 758, 834; People v. Doolin, supra, 45 Cal.4th at p. 450.) Not every denial of a
request for a continuance violates due process, “even if the party seeking the continuance
thereby fails to offer evidence. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907,
921.) “Absent a showing of an abuse of discretion and prejudice, the trial court’s denial
does not warrant reversal. [Citation.]” (People v. Doolin, at p. 450.)
       As to the related claim of ineffective assistance of counsel, we “need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” (Strickland v.
Washington (1984) 466 U.S. 668, 697.)
       Defendant’s first trial ended in a mistrial in April 2011, when his attorney became
suddenly unavailable due to a personal tragedy. Jury selection in the retrial began on
August 24, 2011. On that day, defense counsel advised the court that Ramirez was not in
California and would be outside the United States between September 2 and 12. He
represented she was under subpoena on call to him, but had not responded to his
messages whether she could testify before September 2. Counsel suggested Ramirez


                                             14
would be available on September 13. The court responded that would be outside the
three-week estimate given the jurors.
       Counsel renewed the request for a continuance on September 1, and the court
reiterated it would not be granted. On September 7, counsel yet again requested a two-
day break in the trial to allow Ramirez to testify on September 13. In denying the
request, the court noted counsel had not proven Ramirez had ignored a subpoena when
she left the jurisdiction. Counsel responded that was correct. Presentation of the
evidence ended on September 8, followed by closing arguments on September 9.
Deliberations started on September 12.
       On this record, we cannot conclude the court abused its discretion in denying the
continuance. Even though counsel asked for a delay of only two court days, the record
does not indicate Ramirez was under subpoena when she left California and it is unclear
whether counsel had made diligent efforts to obtain her presence at trial before she left
the jurisdiction. Additionally, the court had no way of judging the likely benefit to
defendant from her expected testimony since counsel apparently made no offer of proof
until the hearing on the motion for a new trial. Even then, counsel stated in general terms
that Ramirez “would have testified about events in this case that were inconsistent with
what the girls said and would have also testified about [defendant]’s character, having
dated him so long.” Counsel referenced a declaration that contained this offer of proof,
but the declaration is not attached to the motion for a new trial included in the record on
appeal. The representations counsel made do not make clear whether the inconsistencies
to which Ramirez would have testified were material to the convictions from which
defendant appeals.
       Defendant argues Ramirez would have corroborated his testimony that he took
J.T. to other people’s apartments because he was in a relationship with Ramirez.
Ramirez also would have confirmed her presence at a club at which J.T. arrived uninvited
the night after defendant and J.T. had consensual sex for the second time. This, he
claims, would have supported the defense’s theory that J.T. was angry at defendant
because of his relationship with Ramirez.

                                             15
       The fact that defendant and Ramirez were in a relationship was not disputed, nor
was Ramirez’s presence at the club on the night in question. Defendant testified Ramirez
and he were dance partners; they also taught salsa classes together, and they argued about
a routine in front of other people at the club. J.T. similarly testified defendant argued
with his “dance partner” in front of everybody at the club, and the relationship between
the two appeared to be romantic. Her testimony was consistent with defendant’s in all
respects except she believed defendant had invited her to the club, and he denied that.
J.T. testified she was upset because she had to stand in line at the club and defendant did
not pay any attention to her that night. The trial testimony does not indicate Ramirez had
any personal knowledge of the facts underlying J.T.’s allegations against defendant or
would have added anything material to his defense.
       Additionally, the defense called a number of character witnesses, who testified
women flirted with defendant at clubs, and he dated a lot of women. Women who had
long-term consensual sexual relationships with defendant testified he did not force them
to have sex when they did not want to have it. Other women testified that defendant
made no sexual advances towards them, or that he more or less respected their wishes
when they rejected his advances. In light of the ample character evidence presented by
the defense, Ramirez’s testimony regarding her sexual relationship with defendant most
likely would have been cumulative.
       We see no abuse of discretion or ineffective assistance of counsel resulting in
prejudice to defendant from the denial of his request for a continuance.
                                             V
       Defendant also argues the trial court abused its discretion in failing to remove a
sleeping juror, thus depriving defendant of due process and a fair trial. In a related
argument, he contends counsel was ineffective in failing to request that the juror be
removed.
       When it has notice that a juror is sleeping during trial, the trial court must conduct
an investigation. (People v. Bonilla (2007) 41 Cal.4th 313, 350.) The scope of the


                                             16
investigation and the decision whether to discharge the juror are reviewed for abuse of
discretion. (Ibid.)
       In People v. Bonilla, supra, 41 Cal.4th 313, a juror notified the court he had
“drifted off to sleep a couple of times” during trial. (Id. at pp.350–351.) The court held a
hearing at which the juror explained he had caught himself nodding off but did not
believe he had missed anything. (Id. at pp. 351–352.) After holding an additional
hearing at which no evidence indicating an ongoing problem with the juror was adduced,
the court denied the defendants’ motion to dismiss the juror. (Id. at p. 352) The Supreme
Court found no abuse of discretion. (Ibid.)
       In People v. Bradford (1997) 15 Cal.4th 1229, the trial court and defense counsel
commented that a juror was asleep on two days of trial. (Id. at p. 1348) The Supreme
Court concluded the trial court did not abuse its discretion in not investigating further
without evidence of “the juror’s inattentiveness over a more substantial period.” (Id. at
p. 1349.) It noted that courts generally are reluctant to find juror misconduct based on
inattentiveness without evidence that a juror slept during material portions of trial. (Ibid.)
       Here, during the first week of trial, the court advised counsel of its concern that
Juror No. 10 may have fallen asleep “at various times.” At one point, he appeared to be
snoring, then suddenly looked up when nudged by Juror No. 11. For the most part,
however, the court was unsure whether Juror No. 10 was sleeping or listening with his
eyes closed. The prosecutor and defense counsel were not sure either. Defense counsel
advised the court that, even though the juror had sat with his eyes closed during jury
selection, he appeared to be listening. The court asked counsel to “pay a little
attention . . . and just see if anything seems obvious.”
       During deliberations, Juror No. 11 sent a note to the court complaining, among
other things, that Juror No. 10 “fell asleep many times during the trial, did not pay full
attention to the trial process. I had to pat his shoulder to wake him up. Juror No. 6 also
noticed that.” The court questioned Juror No.10, who admitted to closing his eyes, but
claimed he prevented himself from falling asleep by chewing on peanuts and had “fully
understood and heard the case.” The court noted that after its initial concern that Juror

                                              17
No. 10 may be sleeping during trial, it watched him carefully and did not notice any
further problem.
       We find no abuse of discretion or ineffective assistance of counsel under these
circumstances. The trial court itself had watched Juror No. 10 and had noticed no
ongoing problem. The juror maintained he had taken measures to stay alert during trial
and had been “pretty much aware of what was going on.” Defense counsel also had
observed that despite closing his eyes, the juror appeared to be paying attention. There
was no evidence that Juror No. 10 had actually missed substantial or material portions of
trial. Counsel was not required to request that Juror No. 10 be removed in the absence of
such evidence, and the court’s handling of the matter was within its discretion.
                                            VI
       The court instructed the jury with CALCRIM No. 1191 on the use of propensity
evidence admitted pursuant to Evidence Code section 1108. Defendant argues the jury
instruction violated his right of due process because it deprived him of the presumption of
innocence and the right to have his guilt determined beyond a reasonable doubt. In a
related argument, he contends Evidence Code section 1108 itself violates the right to due
process and equal protection. Defendant concedes he challenges settled California
precedent in order to preserve the issues for possible review in federal court. We reject
these arguments.
   A. CALCRIM No. 1191
       The court instructed the jury with CALCRIM No. 1191 that if the uncharged rape
of S.L. was proven by preponderance of the evidence, the jury was allowed, but not
required, to conclude that defendant was disposed to commit sexual offenses. From that,
the jury was allowed to conclude further that defendant was likely to commit and
committed the offenses with which he was charged. The jury was admonished the
uncharged offense was to be considered as a factor with other evidence but not as
evidence of guilt by itself. The jury also was admonished the People had to prove the
elements of every charge beyond a reasonable doubt.


                                            18
       As defendant concedes, in People v. Reliford (2003) 29 Cal.4th 1007, the Supreme
Court upheld the older instruction on the use of propensity evidence, CALJIC
No. 2.50.01, against a due process challenge. (Id. at pp. 1012–1016 [holding instruction
unlikely to mislead jury regarding prosecution’s burden to prove elements of charged
crimes beyond reasonable doubt].) Subsequent cases have held that CALCRIM No. 1191
is not materially different from CALJIC No. 2.50.01. (See, e.g., People v. Anderson
(2012) 208 Cal.App.4th 851, 894–896; People v. Schnabel (2007) 150 Cal.App.4th 83,
87; People v. Cromp (2007) 153 Cal.App.4th 476, 480.)
       Defendant argues that inferring a defendant’s disposition to commit sexual
offenses, as permitted by CALJIC No. 2.50.01, is materially different from concluding
the same thing, as permitted by CALCRIM No. 1191. He argues further that this one-
word difference in the instructions deprived him of the presumption of innocence. We
disagree. Despite defendant’s assertion that “conclude” is “a more definitive term,” a
conclusion and an inference are functional synonyms. A conclusion of fact is “an
evidentiary inference,” and an inference is “[a] conclusion reached by considering other
facts and deducing a logical consequence from them.” (See Black’s Law Dict. (9th ed.
2009) pp. 329, col. 2 & 847, col. 2.) CALCRIM No. 1191 and CALJIC No. 2.50.01 are
not materially different.
       We are bound by the Supreme Court’s holding in People v. Reliford, supra,
29 Cal.4th 1007, under principles of stare decisis. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
   B. Evidence Code Section 1108
       Evidence Code section 1108, subdivision (a) makes evidence of a defendant’s
commission of a sexual offense admissible in a criminal prosecution of the defendant for
another sexual offense, subject to the balancing of probative value and undue prejudice
under Evidence Code section 352. In People v. Fitch (1997) 55 Cal.App.4th 172, 182–
184, the Court of Appeal held that section 1108 does not violate equal protection. That
holding was cited with approval in People v. Falsetta (1999) 21 Cal.4th 903, where the
Supreme Court held that section 1108 does not violate due process because it allows trial

                                             19
courts to exclude unduly prejudicial evidence under section 352. (Id. at p. 917–918,
919.)
        Defendant contends the state precedent should be reconsidered in light of
Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, overruled on other grounds by
Woodford v. Garceau (2003) 538 U.S. 202. We are not persuaded. As defendant
acknowledges, decisions of the federal intermediate courts are not binding on us.
(People v. Bradley (1969) 1 Cal.3d 80, 86.) But we are bound by People v. Falsetta,
supra, 21 Cal.4th 903. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d
at p. 455.) As defendant also acknowledges, Garceau v. Woodford involved the
introduction of propensity evidence in a capital murder case. The Ninth Circuit in that
case was not faced with a constitutional challenge to Evidence Code section 1108, and
the case cannot stand for a proposition not actually considered. (See People v. Barragan
(2004) 32 Cal.4th 236, 243.) The Ninth Circuit has upheld the admission of propensity
evidence in sex offense cases both under Evidence Code section 1108 and its rough
analogue, Federal Rule of Evidence 414. (See Mejia v. Garcia (9th Cir. 2008) 534 F.3d
1036, 1047; United States v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022, 1031.) We see
no conflict between Garceau v. Woodford and these sex offense cases. Even were there a
conflict in Ninth Circuit decisions, it is not for us to resolve.
        Not only does defendant urge us to disagree with binding precedent, but he cannot
show prejudice. Since the jury could not reach a verdict on at least some of the charges,
it cannot be said that the uncharged rape of S.L., which was the sole subject of
CALCRIM No. 1191, determined the result of his trial.
                                              VII
        Defendant urges us to find cumulative error based on the issues we discussed so
far. Since we find no individual error requiring reversal of his convictions, we also reject
his claim of cumulative error. (See People v. Panah (2005) 35 Cal.4th 395, 479–480
[error harmless when considered separately do not give rise to cumulative error].)




                                               20
                                            VIII
       Defendant argues that the $2,000 restitution fine under section 1202.4, subdivision
(b) violated his federal constitutional rights because the fine is punitive and the court
imposed it on judicially determined facts. This argument was recently rejected in People
v. Kramis (2012) 209 Cal.App.4th 346.
       As the court in that case explained, “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (People v. Kramis, supra, 209 Cal.App.4th at p. 350,
quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) This requirement applies to
the imposition of criminal fines as well. (Southern Union Co. v. United States (2012)
567 U.S. ___, 132 S.Ct. 2344, 2357.) However, it has no application in cases where the
trial court exercises its discretion by imposing a sentence within a statutory range. (See
People v. Kramis, at p. 351 and cases cited there.) A sentence within such a range is
supported by the jury’s verdict, and any factor the trial court uses to determine the precise
sentence within the range is not a sentence enhancement. (Ibid.)
       The statutory range set forth for a fine in a felony conviction in section 1202.4,
subdivision (b)(1) used to be between $200 and $10,000. (See People v. Kramis, supra,
209 Cal.App.4th at p. 349.) Since January 1, 2012, it has been between $240 and
$10,000. (Id. at p. 350, fn. 2.) Defendant was sentenced on January 27, 2012 for crimes
committed in 2002 and 2009. The $2,000 fine is within the statutory limit under either
version of the statute.
       Defendant argues that, under section 1202.4, subdivision (c), the applicable
statutory maximum was $200 because the court was to determine his ability to pay if it
decided to impose a fine in a higher amount. That is contrary to the plain language of
subdivision (c), which refers to a “minimum” fine. A defendant’s ability to pay is one
factor, among others, that the court considers in setting the amount of the fine above the
statutory minimum but within the statutory range. (See People v. Kramis, supra, 209
Cal.App.4th at p. 350, citing § 1202.4, subds. (c)–(d).) Since no factor enhanced the fine


                                              21
beyond the statutory maximum authorized by the jury verdict, Apprendi v. New Jersey,
supra, 530 U.S. 466 and its progeny have no application in this case.
                                               IX
       Defendant argues the court abused its discretion in denying his motion for a new
trial based on jury misconduct, without holding an evidentiary hearing or ordering
disclosure of juror identifying information.
       A petition for release of juror identifying information must be supported “by a
declaration that includes facts sufficient to establish good cause for the release” of this
information. Denial of such a petition is reviewed for abuse of discretion. (People v.
Carrasco (2008) 163 Cal.App.4th 978, 991.)
       The trial court also has discretion “to conduct an evidentiary hearing to determine
the truth or falsity of allegations of jury misconduct, and to permit the parties to call
jurors to testify at such a hearing. [Citation.] . . . ‘The hearing . . . should be held only
when the defense has come forward with evidence demonstrating a strong possibility that
prejudicial misconduct has occurred. Even upon such a showing, an evidentiary hearing
will generally be unnecessary unless the parties’ evidence presents a material conflict that
can only be resolved at such a hearing.’ [Citations.]” (People v. Avila (2006) 38 Cal.4th
491, 604.)
       The trial court has broad discretion “to act upon a motion for new trial. [Citation.]
When the motion is based upon juror misconduct, the reviewing court should accept the
trial court’s factual findings and credibility determinations if they are supported by
substantial evidence, but must exercise its independent judgment to determine whether
any misconduct was prejudicial.” (People v. Dykes (2009) 46 Cal.4th 731, 809.)
       As we noted, on the second day of deliberations, Juror No. 11 sent a note to the
court, complaining that Juror No. 10 slept during trial. He also complained Juror Nos. 8
and 10 were biased in defendant’s favor based on their personal experiences. Because of
this perceived bias, on the third day of deliberations, Juror No. 11 asked to be dismissed
from the jury, stating he had doubts Juror Nos. 8 and 10 “will change their biased mindset
about the case which was openly pronounced in the deliberation room, due to their

                                               22
personal experiences.” Juror No. 11 assured the court he took jury duty seriously and
wanted to do “a good job as a juror,” but did not want to participate in a “task” that was
“likely to fail . . . justice.” The court questioned Juror No. 10 about the allegations
against him, and admonished him to decide the case on the evidence. The court also
admonished Juror No. 11 that disagreement with other jurors was not a ground to
withdraw from his position as a juror.
       Defendant’s motion for a new trial was based on a declaration by Juror No. 10,
whom Juror No. 11 had earlier accused of bias. In the declaration, Juror No. 10 alleged
that, after the prosecutor rested, Juror No. 11 told him that when they go back into the
jury room, “‘in five minutes we’re done.’” Juror No. 10 also claimed that, when
deliberations began, Juror No. 11 immediately stated defendant was guilty, but “never”
gave a reason for his opinion. Juror No. 10 alleged further that, one day during
deliberations, Juror No. 9 came into the jury room crying. She told the jury, “We need to
get this guy off the street,” and always voted to convict defendant.
       The trial court denied the motion for a new trial and declined to release juror
identification information, finding defendant had not made a prima facie case of juror
misconduct or prejudice. The court noted the jury deliberated for several days, the court
and counsel addressed issues that came up during deliberations, and defendant could not
“pick through [the] whole deliberative process.”
   A. Juror No. 11
       Defendant relies on People v. Brown (1976) 61 Cal.App.3d 476 to argue that Juror
No. 11 committed misconduct. In that case, a juror signed a declaration, stating that,
before the prosecution rested, a fellow juror had commented, ““He is guilty.” “There is
no doubt about it.’”’ (Id. at p. 479) Based on that uncontradicted declaration, the
appellate court found the juror who made the comments engaged in prejudicial
misconduct by prejudging the case “early in the proceedings independent of the evidence
and the law.” (Id. at p. 482.)
       Defendant also relies on Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th
778, where one juror was alleged to have told another, ‘“‘I made up my mind already.

                                              23
I’m not going to listen to the rest of the stupid argument.’”’ (Id. at p. 784.) The trial
court granted a motion for new trial based on juror misconduct, finding this remark was
made two weeks into a five-week trial. (Id. at p. 795.) The Court of Appeal affirmed,
stating the juror’s remark “requires neither interpretation nor the drawing of inferences. It
is a flat, unadorned statement that this juror prejudged the case long before deliberations
began and while a great deal more evidence had yet to be admitted.” (Id. at p. 794.)
       The People in turn rely on People v. Allen and Johnson (2011) 53 Cal.4th 60.
There, the Supreme Court concluded that a remark a juror made during deliberations,
“‘When the prosecution rested, she didn’t have a case,’” was “subject to some
interpretation” and was “not an ‘unadorned statement’ that he had conclusively prejudged
the case.” (Id. at pp. 66, 73.) The court reasoned that “[a] juror who holds a preliminary
view that a party’s case is weak does not violate the court’s instructions so long as his or
her mind remains open to a fair consideration of the evidence, instructions, and shared
opinions expressed during deliberations.” (Id. at p. 73.)
       The record in this case is somewhat unclear whether the court credited Juror
No. 10’s allegation that Juror No. 11 had prejudged the case. The court stated tentatively
that “maybe there is a suggestion . . . maybe there was some comment . . . who knows
what was said.” Considering that Juror No. 11 already had accused Juror No. 10 of bias
during deliberations, the court could rightfully suspect Juror No. 10’s counter-accusation.
       Assuming that the court credited the declaration, the remark, “when we go back
into the jury room ‘in five minutes we’re done,’” does not unequivocally show that, by
the end of the prosecution’s case, Juror No. 11 had decided defendant was guilty beyond
any doubt and was refusing to listen to the defense’s case. Since the remark required
some interpretation, it was closer to the statement at issue in People v. Allen and Johnson
than to those in Grobeson v. City of Los Angeles and People v. Brown.
       Juror No. 10 also claimed Juror No. 11 announced his belief in defendant’s guilt
on the first day of deliberations without providing a reason for that belief. But the
declaration does not establish that Juror No. 11 refused to listen to the opinions of other
jurors or to consider the evidence and instructions. (See People v. Allen and Johnson,

                                              24
supra, 53 Cal.4th at p. 73.) On the contrary, Juror No. 11’s complaints during
deliberations suggest that he listened to Juror Nos. 8 and 10’s views and disagreed with
them because he perceived them to be based inappropriately on those jurors’ personal
experiences rather than on the evidence. Whether or not that perception was correct,
Juror No. 11 apparently was trying to follow the instruction that the case should be
decided on the evidence presented at trial.
   B. Juror No. 9
       Defendant argues the allegations that Juror No. 9 cried at one point during
deliberations and told the other jurors, “We need to get this guy off the street,” presented
good cause for granting the motion for a new trial. Defendant is correct that “both trial-
related and non-trial-related stress can provide good cause for discharging a juror.”
(People v. Diaz (2002) 95 Cal.App.4th 695, 703 and cases cited in it.) But the question is
whether the stress interferes with a juror’s ability to perform as a juror. (Ibid.)
       In two of the cases on which defendant relies, the juror herself brought her
inability to perform as a juror to the court’s attention. (See People v. Collins (1976)
17 Cal.3d 687, 690) [juror asked to be excused because she could not follow court’s
instructions, “felt more emotionally than intellectually involved and . . . thought she
would not be able to make a decision based on the evidence or the law”], disapproved on
a different ground in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19; People v. Van
Houten (1980) 113 Cal.App.3d 280, 285 [juror asked to be excused because evidence was
so graphic and upsetting to her she tuned it out].) In People v. Diaz, supra, 95
Cal.App.4th 695, the foreperson alerted the court that a juror was refusing to deliberate.
(Id. at p. 700.) Although the juror’s emotional distress became apparent in subsequent
questioning, it was not the sole or primary basis for removing her. (Id. at pp. 702, 705.)
       Here, there is no evidence Juror No. 9 was unwilling or unable to deliberate,
follow instructions, or assess the evidence rationally. Rather, defendant infers from the
allegation that the juror had become emotional on one occasion during several days of
deliberation that she generally could not perform as a juror. The inference is speculative
absent other evidence. The juror’s alleged comment that defendant should be taken “off

                                              25
the street” and her consistent vote to convict may suggest she strongly believed he was
guilty, but they do not demonstrate that her belief was the result of an emotional reaction
as opposed to deliberation and rational examination of law and evidence.
       The trial court reasonably concluded that Juror No. 10’s declaration failed to
establish juror misconduct. In light of that conclusion, the court did not abuse its
discretion in denying the motion for a new trial without releasing juror information or
holding an evidentiary hearing.


                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       MANELLA, J.



       SUZUKAWA, J.




                                             26
