Filed 5/3/13
                       CERTIFIED FOR PARTIAL PUBLICATION‫٭‬




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----



THE PEOPLE,

                 Plaintiff and Respondent,                            C067380

        v.                                                   (Super. Ct. No. 09F07723)

JOE LYNN MCCOY,

                 Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G.
Connelly, Judge. Affirmed in part and reversed in part.

      Kat Kozik, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell,
Assistant Attorneys General, Eric L. Christoffersen and Brook Bennigson, Deputy
Attorneys General, for Plaintiff and Respondent.




‫ ٭‬Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts III, IV, VI, and VII of the discussion.

                                              1
       Defendant Joe Lynn McCoy physically and sexually assaulted his girlfriend,
Cindy H., fracturing her spine during the attack and rendering her a quadriplegic.
Because Cindy H.‟s medical condition provided reasonable grounds to fear she would be
unable to testify at trial, she was examined conditionally during the preliminary hearing
via two-way video. At trial, as anticipated, the video of this examination was played for
the jury because Cindy H. was unable to testify. Defendant was convicted of torture
(count 2), inflicting corporal injury on a cohabitant (count 3), and unlawful sexual
penetration with a foreign object (count 4). With respect to count 3, the jury found
defendant personally inflicted great bodily injury causing paralysis. With respect to
count 4, the jury found defendant personally inflicted torture.1 The trial court sentenced
defendant to state prison for a term of 25 years to life and imposed other orders.
       On appeal, defendant asserts: (1) the introduction of Cindy H.‟s conditional
examination violated his Sixth Amendment right of confrontation because (a) the video
equipment used during the conditional examination was not set up to allow him to
confront his accuser “face-to-face,” and (b) he possessed a substantially different interest
and motive in cross-examining Cindy H. during the conditional examination than he did
at trial; (2) the trial court further violated defendant‟s Sixth Amendment right of
confrontation, as well as his Fourteenth Amendment right to due process, by allowing the
prosecution to amend the information to add a one-strike torture allegation to count 4
after the conditional examination; (3) the trial court prejudicially erred when it denied
defendant‟s motion for a continuance rather than construe that motion as a request to
discharge the jury and declare a mistrial; (4) the trial court prejudicially erred in
admitting into evidence a prior act of domestic violence under Evidence Code section



1 The jury was unable to reach a verdict on count 1, which charged defendant with
attempted murder. Nor could the jury reach a verdict on a one-strike great bodily injury
allegation attached to count 4.

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1109; (5) defendant‟s conviction in count 4 for unlawful sexual penetration must be
reversed because of instructional error; (6) the trial court “mishandled” defendant‟s
motion to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118
(Marsden); and (7) the abstract of judgment must be corrected.
         The Attorney General concedes there is an error in the abstract of judgment and
also points out that the trial court neglected to impose sentence on counts 2 and 3 before
staying their execution pursuant to Penal Code section 654,2 resulting in an unauthorized
absence of sentence. We accept the concession, agree that sentence must be imposed on
counts 2 and 3, and remand the matter to the trial court for this limited purpose.
         Turning to defendant‟s remaining contentions, the first is forfeited and the
remainder fail on the merits. As we explain, defendant‟s failure to object to the manner
in which the video equipment was set up during the conditional examination has forfeited
the claim that he was deprived of the ability to confront his accuser “face-to-face.” Had
an objection been made, any error in failing to turn the camera to show defendant to
Cindy H. during her testimony could easily have been remedied. And because defendant
did not possess a substantially different interest and motive in cross-examining Cindy H.
during the conditional examination than he did at trial, we cannot conclude that playing
this examination for the jury violated his confrontation rights. Nor did the trial court
abuse its discretion or violate defendant‟s constitutional rights by allowing the
prosecution to amend the information to add the one-strike torture allegation to count 4 or
by denying his request for a continuance. We also conclude the trial court did not err in
admitting into evidence the prior incident of domestic violence. As we explain, while
this particular incident took place more than 10 years before the charged crimes, the trial
court did not abuse its discretion in concluding that admission of this evidence was in the




2   Undesignated statutory references are to the Penal Code.

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interest of justice. Nor was the jury improperly instructed with respect to the crime of
unlawful sexual penetration. Finally, we disagree that the trial court mishandled
defendant‟s Marsden motion.
                                          FACTS
       In September 2006, defendant and Cindy H. began dating. At the time, Cindy H.
lived in an apartment on La Riviera Drive in Sacramento with her two teenage sons. In
March 2007, defendant moved into the apartment. By the following March, both of
Cindy H.‟s sons had moved out of the apartment. Defendant‟s violence against Cindy H.
began three months later.
       The first violent incident occurred in June 2008. Cindy H. was drinking with
defendant at a bar when she told him she wanted to go home. Defendant refused to leave.
Cindy H. left the bar and started to walk home. Defendant then called a cab and was the
first to reach the apartment. When Cindy H. walked through the door, defendant
“backhanded” her and told her to take off her clothes. While yelling, defendant then
ripped her shirt off and hit her several times on the side of her leg. Two days later,
Cindy H. went to work with a black eye and bruises on her leg. A coworker took pictures
of the injuries.
       Between June 2008 and September 2009, defendant physically assaulted Cindy H.
“four or five” times in the apartment, each time causing black eyes. On one of these
occasions, he hit her in the head with something that caused two cuts and resulted in
“quite a bit of blood on the carpet.” Each time, defendant had been drinking. And each
time, he stood between Cindy H. and the door and “would either tell [her] to take [her]
clothes off or he would force -- forcefully remove [her] clothes.” As Cindy H. described
the impetus for these assaults, “[h]e would get it in his head that [she] was cheating on
him or that [she] was with somebody else.”
       The last violent incident continued this theme and resulted in Cindy H.‟s
quadriplegia. On September 15, 2009, she and defendant looked at houses with a realtor.

                                              4
At some point, they began to argue and returned to the apartment. Cindy H. changed into
a bathing suit and went to a place along the American River she and defendant
frequented. She brought a CD player, a book, a bottle of wine, and some lemon-lime
soda. She did not invite defendant to come along. While at the river, she talked to
defendant on the phone and asked if he was going to “come down and meet [her] at the
river.” Defendant seemed “irritated” and said that “he would be going the next day
without [her].”
       Defendant drank alcohol at the apartment while Cindy H. was at the river. When
she returned to the apartment, defendant “accused [her] of getting out of somebody‟s
truck.” She responded that “he was seeing things.” Defendant “became angry,” ripped
the top half of her bathing suit, took her CD player and “stomped” on it, emptied her
purse onto the floor, and then told her to “clean up the mess.” Cindy H. removed the
entire bathing suit, placed it in the trash, and started picking up defendant‟s mess. As she
did so, defendant hit her in the head with either his palm or the back of his hand and told
her to “hurry up.” She ended up lying face down on the carpet near the front door.
Defendant then grabbed both of her legs and forced them up and forward towards her
head. Cindy H. felt a “pop” and a “burst of heat,” and “still [lying] face down, [she
could] see [her] legs in front of [her head].” Realizing she could not move her limbs,
Cindy H. told defendant he had broken her back. He responded that she “wasn‟t hurt that
bad.” Defendant then turned her over and kicked her several times in the vaginal area,
uttering vile epithets as he did so. As a final insult to her human dignity, defendant
“inserted three double A batteries into [Cindy H.‟s] rectum,” and then removed the third
battery, which was “now covered with fecal matter, and he smear[ed] it on [her] face.”
       At some point, defendant dragged Cindy H. into the hallway and called Anthony
Colding, the maintenance man at the apartment complex. Defendant told Colding he
“needed help” with Cindy H., but did not offer any details. Colding and his wife,
Shelonar Ballard, drove from their home in South Sacramento to defendant‟s apartment

                                             5
complex and arrived about 30 minutes later. In the meantime, Cindy H. pleaded with
defendant to call for an ambulance. He continued to insist she was not seriously hurt.
When Colding and Ballard arrived at the complex, Colding went to the apartment and
Ballard remained in the car. The lights in the apartment were turned off. After knocking
on the door and receiving no answer, Colding called defendant and said he was at the
front door. The door opened and defendant let him inside.
       Colding found Cindy H. lying naked in the hallway where defendant had left her.
She was asking for help. Colding asked defendant: “What happened to her?” Defendant
answered that he “stuck some batteries up in her butt.” Defendant and Colding then
picked her up, carried her to the bedroom, and placed her on the bed. As they did so,
Cindy H. begged them not to move her. Realizing Cindy H. was seriously injured,
Colding told defendant he “need[ed] to call the ambulance.” His response: “That B[itch]
don‟t need no help.” Defendant then offered Colding a beer. Colding declined and
returned to Ballard, who was still in the car. After Colding told Ballard what he had seen
inside the apartment, he again called defendant, this time to allow Ballard to talk to
Cindy H. on the phone. Ballard told her to say “rock” as a code word to indicate she
needed help. Cindy H. did so. Ballard hung up and called 911.
       Sheriff‟s deputies arrived at the apartment during the early morning hours of
September 16, 2009, about 40 minutes after the 911 call. They knocked repeatedly and
announced their presence, but no one answered the door. Again, the lights in the
apartment had been turned off. There were no sounds coming from the apartment.
Eventually, they left. Cindy H. explained she did not call out to the deputies for help
because, based on prior experience, she was afraid defendant would strangle her if she
made a sound.
       After the deputies left, defendant fell asleep. Cindy H. woke him up at some
point, told him she was in pain, and asked to be taken to the hospital. Defendant told her
to “leave him alone so he could go back to sleep.” Later in the morning, she told

                                             6
defendant she needed to call in sick to work. Defendant made the phone call and held the
phone for her while she told her manager she was in a car accident and would not be
coming in. She then told defendant several more times she was in pain and needed help.
Each time, he refused to call for help. Instead, he placed hot towels on her arms and told
her taking a hot bath would help. When defendant tried to help her to stand beside the
bed, her legs “folded” under her weight. Defendant told her to “put [her] arms around
him and help him.” She responded: “I can‟t, you broke my back. I can‟t move my arms,
I can‟t move my legs.” Defendant lowered her to the ground next to the bed.
       At this point, defendant suggested taking Cindy H. to the hospital in the back of
his pickup truck, saying he did not want to call an ambulance because he “couldn‟t go to
jail.” Defendant then started packing a bag as if he were getting ready to leave. Cindy H.
asked if she would ever see him again. Defendant responded: “What do you think?”
She then suggested he call 911 and leave the front door unlocked for the paramedics.
Defendant decided to call an ambulance company directly rather than dialing 911.
Cindy H. promised to tell medical personnel and law enforcement that she was attacked
while at the river the night before, and she managed to drive home before losing the
ability to move. At Cindy H.‟s direction, defendant made sure the ambulance company
carried a backboard. He also told them lights and sirens would not be necessary. While
waiting for the ambulance to arrive, defendant partially dressed Cindy H. and placed a
cervical collar, which she had from a previous injury, around her neck.
       True to her word, Cindy H. told paramedics she was attacked by a woman the
night before while partying at the river, she felt “minor pain” when she got home, put on
the cervical collar, and woke up unable to move. She was taken to Mercy San Juan
Medical Center. Doctors diagnosed a fracture and dislocation of the cervical spine at the
C5/C6 location, which rendered her permanently paralyzed below her chest. She had
bruises on her lower abdomen, legs, and arms. The two batteries that remained in her
rectum were removed. She was then placed in traction to realign the spine before being

                                             7
taken to the operating room where spinal surgery was performed. When the surgeon
asked how she received the spinal injury, she again claimed to have been attacked by a
woman the night before.
       Defendant was arrested about three weeks later at a Motel 6 in South Sacramento.
                                       DISCUSSION
                                              I
                       Admission of the Conditional Examination
       Defendant contends the trial court violated his Sixth Amendment right of
confrontation by admitting into evidence Cindy H.‟s conditional examination.
Specifically, he argues: (1) the video equipment used during the conditional examination
was not set up to allow him to confront his accuser “face-to-face,” and (2) he possessed a
substantially different interest and motive in cross-examining Cindy H. during the
conditional examination than he did at trial because a one-strike torture allegation was
added to count 4 after the conditional examination was conducted. The first of these
contentions has been forfeited. The second fails on the merits.
                                             A.
                                   Statutory Framework
       In order to place defendant‟s contentions in context, we begin with a brief
overview of the statutory scheme governing conditional examinations.
       In all criminal cases, “other than those for which the punishment may be death”
(§ 1335, subd. (a)), the prosecution may apply for a court order compelling a material
witness to submit to a conditional examination if the witness “is about to leave the state,
or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will
be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult.”
(§ 1336, subd. (a).) The prosecution may also apply for such an order in cases in which
the “defendant has been charged with a serious felony or in a case of domestic violence,”
even where the punishment may be death, “if there is evidence that the life of the witness

                                              8
is in jeopardy.” (§§ 1335, subd. (b), 1336, subd. (b); People v. Jurado (2006) 38 Cal.4th
72, 113 [“conditional examination of a prosecution witness is permitted in a capital case
when the witness‟s life is in jeopardy”].)
       The application for a conditional examination “may be made to the court or a
judge thereof, and must be made upon three days‟ notice to the opposite party.” (§ 1338;
but see People v. Frank (1933) 132 Cal.App. 360, 363 [order shortening time may issue
upon a proper showing that the exigencies of a given case require notice of less than three
days].) “If the court or judge is satisfied that the examination of the witness is necessary,
an order must be made that the witness be examined conditionally, at a specified time and
place, and before a magistrate designated therein.” (§ 1339.) “The defendant has the
right to be present in person and with counsel at the examination.” (§ 1340, subd. (a).)
However, “[i]f the court determines that the witness to be examined is so sick or infirm as
to be unable to participate in the examination in person, the court may allow the
examination to be conducted by a contemporaneous, two-way video conference system,
in which the parties and the witness can see and hear each other via electronic
communication.” (§ 1340, subd. (b).)
       At the conditional examination, “[t]he testimony given by the witness shall be
reduced to writing and authenticated in the same manner as the testimony of a witness
taken in support of an information. Additionally, the testimony may be video-recorded.”
(§ 1343.) “[I]f the examination was video-recorded, that video-recording may be shown
by either party at the trial if the court finds that the witness is unavailable as a witness
within the meaning of Section 240 of the Evidence Code. The same objections may be
taken to a question or answer contained in the . . . video-recording as if the witness had
been examined orally in court.” (§ 1345.) Among other statutory conditions, a witness is
“unavailable as a witness” if he or she is “unable to attend or to testify at the hearing
because of then-existing physical or mental illness or infirmity.” (Evid. Code, § 240,
subd. (a)(3).)

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                                              B.
                                   Additional Background
          On March 3, 2010, the date set for the preliminary hearing, the prosecution applied
for an order directing that Cindy H. be conditionally examined the following day via two-
way video conference system. As the prosecutor explained: “I learned after being
assigned to this courtroom that [Cindy H.], who is a quadriplegic as a result of this crime
and who is currently in a care facility, became ill with pneumonia. We had learned that
she was ill with pneumonia yesterday, however, [Cindy H.] indicated to me she felt she‟d
be well enough to attend today‟s hearing. [¶] What I learned this morning was from the
actual care facility who indicated [Cindy H.], her pneumonia [sic] had become worse, she
was not going to be able to travel. And they were carefully monitoring her condition in
the hopes that the medication or prescription she was on would help alleviate her
symptoms. [¶] The People became concerned that [Cindy H.] would not be able to travel
for some time or may even get worse, her condition may even get worse, so we chose to
petition the Court requesting that we conduct a conditional examination of [Cindy H.]
given that at this point in time she is unable to travel from her care facility.”
          Defendant‟s attorney pointed out that section 1338 required the prosecution to
provide him with “three days notice on the issue,” and stated: “I may be willing to waive
that and proceed tomorrow, but I‟m going to ask the Court to allow me overnight to
conduct legal research on this.” The magistrate, Judge David I. Brown, found good cause
to continue the preliminary hearing for one day and directed defendant‟s attorney to
People v. Frank, supra, 132 Cal.App. 360, explaining that the Court of Appeal in that
case held a deposition taken under section 1336 was admissible even though the
deposition was taken the same day the application was filed rather than on three days‟
notice.
          On March 4, 2010, the preliminary hearing resumed and the same magistrate
explained he was treating the prosecution‟s application for a conditional examination

                                              10
upon less than the statutorily required three days‟ notice as an application for an order
shortening time to conduct the requested examination. Defendant‟s attorney objected to
the lack of notice and further objected that conducting the examination via two-way
video conference would violate defendant‟s Sixth Amendment right to confront his
accuser, arguing that “there could be some distinctions and some differences in my ability
to cross-examine her today by video conference as compared to her live testimony in the
sense that I won‟t have a chance to look at body language, it may be difficult for me to
understand some of her answers or questions, and you would lose the ability to interact
with each other in a live format.”
       The prosecutor responded: “Our concern is, based on what the medical staff is
telling us, that pneumonia can be very detrimental to somebody who is a quadriplegic
and, therefore, not only was she unable to travel due to her illness but our concern was
getting her testimony documented should she become more severely ill.” The magistrate
interjected: “Or die?” The prosecutor answered: “Yes.” The magistrate then granted
the application and addressed defendant‟s attorney: “I believe that you‟ll have the
appropriate opportunity to cross-examine the witness. Admittedly, she won‟t be present
here in the flesh, but she will be present in the flesh in another location where a video
conferencing setup will allow us to be able to cross-examine her and ask her questions
regarding her recollection of what occurred and her statements relating to her condition.
[¶] I assume, of course, that those are going to be the areas that are going to be addressed
primarily, as well as her relationship to the defendant, so that we can make a
determination based on the witness‟s own statements.”
       The conditional examination was conducted during the afternoon session. A two-
way video conference system was set up connecting Cindy H. at the care facility with the
magistrate, defendant, defense counsel, and the prosecutor in the courtroom. The system
enabled the parties to see and hear Cindy H. while she testified and enabled Cindy H. to
see and hear each attorney who asked her questions. When the prosecutor finished her

                                             11
examination of Cindy H., the camera was moved to show defendant‟s attorney during his
cross-examination of the witness. The camera was not moved to show defendant to
Cindy H. during her testimony, except when she identified him as her attacker.
Defendant‟s attorney did not object to the manner in which the system was set up.
Following the preliminary hearing, defendant was held to answer.
       On November 9, 2010, the prosecution moved to amend the information to add
two one-strike allegations to count 4. The amendment sought to allege defendant
inflicted aggravated mayhem or torture during the commission of the sex offense within
the meaning of section 667.61, subdivision (d)(3), and that he also personally inflicted
great bodily injury during the commission of this crime within the meaning of section
667.61, former subdivision (e)(3).3 Defendant objected to the amendment, arguing the
prosecution introduced “absolutely no evidence” during the preliminary hearing that he
inflicted mayhem, torture, or great bodily injury while inserting the batteries into
Cindy H.‟s rectum. On November 18, 2010, the trial court entertained argument on the
proposed amendment and deferred ruling on the motion.
       On November 29, 2010, prior to opening statements, the prosecutor advised the
trial court Cindy H. was unable to come to court because she was hospitalized due to a
bladder infection. The parties agreed to hold opening statements in abeyance until they
received further information concerning her condition. That afternoon, the prosecutor
informed the trial court Cindy H. was in the intensive care unit due to both a urinary tract



3 At the time of the crime, section 667.61, subdivision (e)(3), provided: “The defendant
personally inflicted great bodily injury on the victim or another person in the commission
of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.” (Stats.
2006, ch. 337, § 33, p. 2640.) Currently, this subdivision provides: “The defendant
personally used a dangerous or deadly weapon or a firearm in the commission of the
present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.”
(§ 667.61, subd. (e)(3).) Former subdivision (e)(3) can now be found in subdivision
(d)(6).

                                             12
infection and pneumonia, she was nonresponsive, her breathing was being assisted by a
breathing tube, and the doctors would know more about her condition in two or three
days. The trial court indicated the trial would proceed the following day with opening
statements and prosecution witnesses, followed the next day by a hearing on whether the
conditional examination would be played for the jury. Defense counsel objected to
playing the conditional examination for the jury and explained: “My concern at this point
would really be compounding of the conditional examination with the amended
information. [¶] The Court is aware that we would have three days notice as required by
law. The Court found a reason at the time of the preliminary hearing to allow the District
Attorney to not have to comply with that requirement. But now [defendant] is in a
position where the conditional exam[ination] is held over his objection without adequate
notice, and since that time now an amended information has been filed adding two rather
substantial enhancements. One 15 years to life, one 25 [years] to life, which he did not
have an opportunity to cross-examine on at the time of the preliminary hearing and
conditional exam[ination].” The trial court then entertained further argument regarding
the prosecution‟s motion to amend the information and granted the motion.
      On December 1, 2010, the trial court held a hearing outside the presence of the
jury concerning whether Cindy H. was unable to testify because of physical illness within
the meaning of Evidence Code section 240, subdivision (a)(3). Dr. Daniel Yuen testified
concerning her medical condition. He explained that while Cindy H. was being treated
for a urinary tract infection, she became unresponsive due to a lack of oxygen and had to
be placed on a respirator. A chest x-ray revealed she also had pneumonia. The
pneumonia had become worse in the previous two days and Cindy H. was under sedation.
Dr. Yuen did not believe she would be able to have the breathing tube removed within a
week in order to testify. Dr. Yuen also expressed doubt about whether she would be able
to nod her head in response to questions because of her neck injury. In response to a
question by defendant‟s attorney, Dr. Yuen clarified that because quadriplegia makes it

                                            13
difficult to recover from pneumonia, “it may be a long, long time” before Cindy H. would
be able to be taken off of the respirator. Indeed, a tracheotomy may be required. The
best case scenario was that it would take “at least a month” for her to be able to come into
court to testify. The worst case scenario was that she might not survive.
       Prior to ruling on the prosecution‟s request to play the conditional examination for
the jury, the trial court allowed both sides to argue the matter. Defense counsel again
expressed concern that he did not have an opportunity to cross-examine Cindy H. about
the one-strike allegations that were added to the information after the conditional
examination. He argued that, because of this, playing the conditional examination for the
jury would violate defendant‟s Sixth Amendment right to confront his accuser. Defense
counsel then requested a continuance of an unspecified duration, as he put it, “to see if we
can obtain [Cindy H.‟s] testimony either live or by video conference.” In response, the
prosecutor pointed out that the initial information contained a charge of attempted murder
with a great bodily injury enhancement and a charge of torture. Thus, argued the
prosecutor, during the conditional examination, defense counsel was given an opportunity
to cross-examine Cindy H. concerning whether defendant inflicted great bodily injury
and torture during his violent assault. Defense counsel responded by reminding the trial
court that “this was a situation where the three-day notice requirement was not met and
that aggravates.”
       The trial court granted the request to play the conditional examination for the jury.
Citing People v. Frank, supra, 132 Cal.App. 360, the trial court confirmed the
magistrate‟s ruling with respect to allowing the conditional examination to take place on
less than three days‟ notice. The trial court then reviewed Dr. Yuen‟s testimony
concerning Cindy H.‟s medical condition and ruled she was “unavailable as a witness”
within the meaning of Evidence Code section 240. The trial court also pointed out that,
although notice was shortened, defense counsel had “effectively a full day notice”
Cindy H. would be examined conditionally during the preliminary hearing. Moreover,

                                            14
“the initial charges as they existed prior to the preliminary hearing and at the time of the
preliminary hearing encompass the fundamental enhancements as they were later sought
and amended . . . . [¶] The notable great bodily injury here was the spinal injury which
would be consistent with the facts used by the mayhem enhancements, which is pled in
the alternative to the torture. As to the torture itself, the violation of . . . Section 206 was
asserted at that time in the Information. [¶] So the issue of torture and great bodily
injury specifically by way of factual background including the spinal injury were directly
immediately at issue in the context of the preliminary hearing.”
       The conditional examination was played for the jury later that day. As mentioned,
the jury convicted defendant of torture, inflicting corporal injury on a cohabitant (with a
great bodily injury enhancement), and unlawful sexual penetration with a foreign object
(with a one-strike torture enhancement). Defendant‟s new trial motion, arguing in part
that his Sixth Amendment right of confrontation was violated by the trial court‟s decision
to allow the conditional examination to be played for the jury, was denied.
                                               C.
                     Defendant’s Right to Face-to-face Confrontation
       Defendant argues the introduction of Cindy H.‟s conditional examination violated
his Sixth Amendment right to confront his accuser face-to-face because “the camera
equipment was not set up to show [defendant] to [Cindy H.] as she testified.”
Defendant‟s failure to object on this ground at a time when the purported error could
have been remedied by the magistrate forfeits the issue on appeal.
       The failure to raise a claim of federal constitutional error before the trial court
forfeits the issue on appeal unless “ „it appears that (1) the appellate claim is the kind that
required no trial court action to preserve it, or (2) the new arguments do not invoke facts
or legal standards different from those the trial court was asked to apply, but merely
assert that the trial court‟s act or omission, in addition to being wrong for the reasons
actually presented to that court, had the legal consequence of violating the

                                               15
Constitution.‟ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 809, quoting People v.
Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Riccardi (2012) 54 Cal.4th 758, 801;
People v. Redd (2010) 48 Cal.4th 691, 730 [failure to raise objection based on
confrontation clause forfeited claim on appeal].) Moreover, in order to avoid forfeiture,
the defendant must have objected on the “specific grounds” asserted as error on appeal.
(People v. Fuiava (2012) 53 Cal.4th 622, 689.)
       Here, as mentioned, defendant objected to the taking of the conditional
examination based on the lack of three days‟ notice and further objected that conducting
the examination via two-way video conference would violate his Sixth Amendment right
to confront Cindy H. because “there could be some distinctions and some differences in
[defense counsel‟s] ability to cross-examine [Cindy H.] by video conference as compared
to her live testimony in the sense that [counsel] won‟t have a chance to look at body
language, it may be difficult for [counsel] to understand some of her answers or
questions, and [they] would lose the ability to interact with each other in a live format.”
Thus, the constitutional objection went to whether the conditional examination should be
conducted in person as opposed to through video conference. We first note “the right to
confrontation is „ “basically a trial right.” ‟ ” (People v. Miranda (2000) 23 Cal.4th 340,
350-351 [use of hearsay at preliminary hearing does not violate the confrontation clause],
quoting Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1079, italics omitted.)
Accordingly, defendant did not have a constitutional right to confront Cindy H. at the
conditional examination. However, it was anticipated by all parties that Cindy H.‟s
conditional examination testimony could be used at trial. Defense counsel‟s objection
may therefore be construed to be that if the conditional examination was held via video
conference, then its subsequent admission at trial would violate defendant‟s
confrontation rights. The magistrate (Judge Brown) overruled the objection and allowed
the conditional examination to be conducted via video conference.



                                             16
       Later in the day, the video conference system was set up and the conditional
examination was conducted. All parties could see and hear Cindy H. while she testified
and Cindy H. could see and hear each attorney who asked her questions. Defendant
never objected to the fact that the camera equipment was not set up to allow Cindy H. to
see him on the screen while she testified. Again, while the confrontation clause generally
“guarantees a criminal defendant „a face-to-face meeting with witnesses appearing before
the trier of fact‟” (People v. Lujan (2012) 211 Cal.App.4th 1499, 1504-1505, quoting Coy
v. Iowa (1988) 487 U.S. 1012, 1016 [101 L.Ed.2d 857]), this right attaches at trial.
However, defense counsel could have objected that if the video conference system did
not allow for a face-to-face confrontation, then the subsequent admission of the
conditional examination at trial would violate defendant‟s confrontation rights.
Defendant could also have objected that such a system would violate section 1340,
subdivision (b), requiring a video conference system “in which the parties and the witness
can see and hear each other via electronic communication.” No such objection was
made. Had either objection been made, the magistrate could have ruled on whether to
turn the camera during Cindy H.‟s testimony to allow her to see defendant.
       Moreover, at no time during trial did defendant object to the playing of the
conditional examination based on the position of the camera equipment during the
examination. While defendant objected on confrontation grounds, his objection was
based on the argument that he did not have an opportunity to cross-examine Cindy H.
about the one-strike allegations added to the information after the conditional
examination.
       Anticipating forfeiture, defendant argues his failure to object “should be excused
as futile.” We are not persuaded. The magistrate addressed the logistics of setting up the
video conference system and stated: “It‟s not required that [Cindy H.] sees us, but it
certainly is required that we see her. [¶] . . . [¶] And that we have a full and complete
opportunity to, you know, examine and cross-examine her. [¶] . . . [¶] It would be

                                             17
preferable if she could see us as well, and there may well be a camera that allows her to
do that.” Defendant quotes only the first sentence and argues: “Clearly, the magistrate
had already made up his mind.” We disagree for two reasons. First, the sentence
defendant relies upon was in response to the prosecutor‟s statement she did not believe
“the code” required Cindy H. to be able to see the parties while she testified. Thus, the
magistrate‟s response had nothing to do with the requirements of the confrontation
clause. Second, immediately thereafter, the magistrate expressed a preference for a video
conference system that enabled Cindy H. to see the parties while she testified, which is
exactly the system that was set up. And while this system did not show defendant to
Cindy H. while she testified, defendant should have made a specific objection based on
his right to face-to-face confrontation and given the magistrate the opportunity to rule on
the matter.
       Finally, we decline defendant‟s request to address the claim on the merits in order
to “forestall a claim of ineffective assistance of counsel.” The burden of proving a claim
of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden
(1976) 16 Cal.3d 808, 816.) And when, as here, counsel has not had the opportunity to
explain his conduct, we will not find ineffective assistance of counsel unless there could
be no satisfactory explanation. (People v. Lewis (1990) 50 Cal.3d 262, 288.) Here, as the
Attorney General argues, defense counsel could have determined that having the camera
focus on defendant‟s face during the conditional examination might have made her
“emotional and upset,” which may have made her more sympathetic to the jury who
ultimately would be viewing the video of the examination later at trial. Defendant‟s only
response is that this explanation “fails to explain why counsel would later object at trial,
. . . but do so inadequately.” But, as we have explained, counsel‟s objection to the
playing of the conditional examination at trial did not include any argument that the
placement of the camera equipment prevented defendant from confronting Cindy H. face-
to-face. A satisfactory explanation for this would lie in counsel‟s belief the trial court

                                             18
would have considered the issue forfeited by his failure to object on these grounds at a
time when the magistrate could have corrected the purported error.
       We conclude defendant has forfeited the contention that playing the conditional
examination for the jury violated his Sixth Amendment right to confront his accuser face-
to-face because the camera equipment was not set up to allow Cindy H. to see him while
she testified.

                                            D.

                      Similarity of Defendant’s Interest and Motive in
                 Cross-examining Cindy H. at the Conditional Examination
       Defendant also argues the trial court violated his Sixth Amendment right of
confrontation by allowing the conditional examination to be played for the jury because
he possessed a substantially different interest and motive in cross-examining Cindy H.
during that examination than he did at trial. We disagree.
       “A criminal defendant has a constitutionally guaranteed right to confront and
cross-examine the witnesses against him or her. [Citations.] The right of confrontation is
not absolute, however, and may „in appropriate cases‟ bow to other legitimate interests in
the criminal trial process. [Citations.] An exception to the confrontation requirement
exists where the witness is unavailable, has given testimony at a previous judicial
proceeding against the same defendant, and was subject to cross-examination by that
defendant. [Citations.] Further, the federal Constitution guarantees an opportunity for
effective cross-examination, not a cross-examination that is as effective as a defendant
might prefer. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1172.)
       In People v. Zapien (1993) 4 Cal.4th 929 (Zapien), our Supreme Court held the
admission of an unavailable witness‟s preliminary hearing testimony “is permitted under




                                            19
Evidence Code section 1291[4] and does not offend the confrontation clauses of the
federal or state Constitutions.” (Id. at p. 975.) This is so, explained the court, “not
because the opportunity to cross-examine the witness at the preliminary hearing is
considered an exact substitute for the right of cross-examination at trial [citation], but
because the interests of justice are deemed served by a balancing of the defendant‟s right
to effective cross-examination against the public‟s interest in effective prosecution.”
(Ibid., citing Ohio v. Roberts (1980) 448 U.S. 56, 64 [65 L.Ed.2d 597, 606]; see also
California v. Green (1970) 399 U.S. 149, 165-168.) And while a defendant‟s motive for
cross-examining a witness during a preliminary hearing will often differ from his motive
for cross-examining that witness at trial, the court explained that “these motives need not
be identical, only „similar.‟ ” (Zapien, supra, 4 Cal.4th at p. 975, quoting People v.
Alcala (1992) 4 Cal.4th 742, 784.)
       Defendant asserts his motive for cross-examining Cindy H. during the conditional
examination was not similar to his motive for cross-examining her at trial because a one-
strike torture allegation was added to count 4 after the conditional examination was
conducted. According to defendant, “[t]he significance of the newly added one-strike
torture allegation dramatically eclipsed everything else against which [he] needed to
defend because it so greatly increased the amount of prison time he faced. Given the
allegation‟s severity, the defense had a very strong interest and motive to focus its cross
examination of [Cindy H.] upon it at trial. In contrast, the defense had scant incentive in




4 Evidence Code section 1291 provides in relevant part: “(a) Evidence of former
testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was
a party to the action or proceeding in which the testimony was given and had the right
and opportunity to cross-examine the declarant with an interest and motive similar to that
which he has at the hearing.”

                                              20
pursuing such questioning at [Cindy H.]‟s earlier conditional examination because the
allegation had not even been brought.”
          As the trial court correctly observed, the information charged defendant with the
substantive crime of torture at the time of the conditional examination. Thus, defendant
had a motive for cross-examining Cindy H. concerning whether he “inflict[ed] great
bodily injury” on her “with the intent to cause cruel or extreme pain and suffering for the
purpose of revenge, extortion, persuasion, or for any sadistic purpose.” (§ 206.) The
one-strike torture allegation added after the conditional examination subjected defendant
to a term of 25 years to life for the crime of unlawful sexual penetration with a foreign
object if, “in the commission of” that crime, he inflicted torture in violation of section
206. (§ 667.61, subds. (a), (d)(3).) Accordingly, defendant complains he did not have an
adequate opportunity to cross-examine Cindy H. concerning whether he inflicted torture
“in the commission of” the sex offense within the meaning of section 667.61, subdivision
(d)(3).
          In People v. Jones (2001) 25 Cal.4th 98 (Jones), our Supreme Court held that the
defendant, who wielded a knife against his victim after he sexually assaulted her, used the
weapon “in the commission of” the sex offenses within the meaning of section 667.61,
former subdivision (e)(4).5 (Id. at p. 109.) The court explained that whether the
defendant used the knife in the commission of the sex offenses was “not „ “a matter of
semantics or simple chronology.” ‟ Instead, „the focus is on the relationship between the
[sex offenses] and the [use of the weapon].‟ [Citation.]” (Ibid.) “[T]he dispositive
question is whether the relationship between the [sex offenses] and [the use of the
weapon] was sufficiently close to justify an enhanced punishment.” (Ibid.) Moreover,



5This subdivision provided: “The defendant personally used a dangerous or deadly
weapon or firearm in the commission of the present offense in violation of Section
12022, 12022.3, 12022.5, or 12022.53.” (Stats. 1998, ch. 936, § 9, p. 6875.)

                                               21
regardless of whether the use of the weapon “occurred before, during, or after the
technical completion of the felonious sex act,” the “operative question is whether the sex
offense posed a greater threat of harm, i.e., was more culpable ‒ ‒ because the defendant
used a deadly weapon to threaten or maintain control over his [or her] victim.” (Id. at
pp. 109-110.)
       We first note Cindy H.‟s testimony supports the conclusion that the sex offense
was part of a continuous course of torturous conduct, beginning with the assault that
rendered her a quadriplegic, including the insertion of the batteries into her rectum, and
continuing throughout the night while defendant refused to call for an ambulance despite
her obvious agony and inability to move. Indeed, the insertion of the batteries evinces a
sadistic intent on the part of defendant. And while the great bodily injury was inflicted
before the batteries were inserted, the jury could infer from their insertion that defendant
also possessed a sadistic intent when he inflicted the great bodily injury. Second, and
more importantly, as Jones, supra, 25 Cal.4th 98 makes clear, the question of whether
defendant inflicted torture in the commission of the sex offense depends not on whether
he inflicted great bodily injury on Cindy H. with the requisite mental state during the
technical completion of the sex act, i.e., while he placed the batteries into her rectum. On
this point, Cindy H. testified that defendant broke her back before he sexually assaulted
her. The dispositive question is whether the relationship between the sex offense and the
torture was sufficiently close to justify an enhanced punishment. Thus, even if defendant
is correct that the torture occurred before the sex offense, this offense “posed a greater
threat of harm, i.e., was more culpable” (Jones, supra, 25 Cal.4th at p. 110), because the
torture rendered Cindy H. a quadriplegic and therefore unable to resist the sexual assault.
       At trial, defendant did not dispute his violent assault against Cindy H. resulted in
her quadriplegia or that he sexually assaulted her. He did dispute whether his actions
amounted to torture. He had a strong motive to cross-examine Cindy H. concerning the
torture count during the conditional examination. Because further cross-examination

                                             22
concerning the timing of events would not have changed the fact the torturous assault that
rendered Cindy H. a quadriplegic rendered the subsequent sexual assault more culpable,
we cannot conclude defendant‟s motive to cross-examine Cindy H. at trial was
substantially different from his motive to cross-examine her during the conditional
examination.
       Nor are we persuaded defendant‟s motive for cross-examining Cindy H.
concerning the one-strike torture allegation at trial was dissimilar to his motive for cross-
examining her concerning the substantive crime of torture at the conditional examination
simply because the one-strike allegation carried a term of 25 years to life, as opposed to
the life term attached to the torture count (§ 206.1). (See People v. Wharton (1991) 53
Cal.3d 522, 589-590 [defendant‟s motive in cross-examining alleged victim at
preliminary hearing in unrelated rape prosecution was sufficiently similar to motive in
cross-examining this witness during penalty phase of subsequent capital murder trial to
warrant admission of preliminary hearing testimony]; see also People v. Ogen (1985) 168
Cal.App.3d 611, 617 [defendant‟s motive in cross-examining murder victim at
preliminary hearing in prior related kidnap-rape prosecution was sufficiently similar to
motive in cross-examining this witness during subsequent murder trial to warrant
admission of preliminary hearing testimony].)
       The trial court did not violate defendant‟s right of confrontation by allowing
Cindy H.‟s conditional examination to be played for the jury.
                                             II
                              Amendment of the Information
       In a related argument, defendant asserts the trial court violated his Sixth
Amendment right of confrontation, as well as his Fourteenth Amendment right to due
process, by allowing the prosecution to amend the information to add the one-strike
torture allegation to count 4. He is mistaken.



                                             23
       “Due process requires that „an accused be advised of the charges against him [or
her] so that he [or she] has a reasonable opportunity to prepare and present his [or her]
defense and not be taken by surprise by evidence offered at his [or her] trial.‟ [Citation.]
Thus, it is the rule that „a defendant may not be prosecuted for an offense not shown by
the evidence at the preliminary hearing or arising out of the transaction upon which the
commitment was based.‟ [Citations.]” (People v. Graff (2009) 170 Cal.App.4th 345, 360
(Graff).)
       In accordance with this rule, our Supreme Court has interpreted sections 739 and
1009 to “ „permit amendment of the information to add charges or enhancements which
are supported by the actual evidence at the preliminary hearing, provided the facts show
due notice by proof to the accused.‟ [Citations.]” (People v. Superior Court (Mendella)
(1983) 33 Cal.3d 754, 764, superseded by statute on another point as stated in In re
Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8.) “Under section 739, „the law is settled that
unless the magistrate makes factual findings to the contrary, the prosecution may amend
the information after the preliminary hearing to charge any offense shown by the
evidence adduced at the preliminary hearing provided the new crime is transactionally
related to the crimes for which the defendant has previously been held to answer.‟
[Citations.] „Under the case law interpreting section 1009, the test applied is whether or
not the amendment changes the offense charged to one not shown by the evidence taken
at the preliminary examination. [Citation.]‟ [Citation.] As long as the above standards
are met, there is no bar to adding to the information enhancement allegations that were
not charged in the complaint.” (Mendella, supra, 33 Cal.3d 754; § 1009 [“indictment or
accusation cannot be amended so as to change the offense charged, nor an information so
as to charge an offense not shown by the evidence taken at the preliminary
examination”].)
       Defendant does not dispute that the one-strike torture allegation was shown by the
evidence adduced at the preliminary hearing. Nor does he dispute the transactional

                                             24
relationship between this allegation and the crimes for which he was held to answer.
Instead, he relies on Graff, supra, 170 Cal.App.4th 345, and People v. Berkowitz (1977)
68 Cal.App.3d Supp. 9 (Berkowitz), disapproved on other grounds in People v. Superior
Court (Douglass) (1979) 24 Cal.3d 428, in arguing he was prejudiced by the “late
amendment” of the information. Such reliance is misplaced.
       In Graff, supra, 170 Cal.App.4th 345, the Court of Appeal reversed the
defendant‟s convictions on two counts of committing a lewd or lascivious act on a child
of 14 or 15 years in violation of section 288, subdivision (c), “because the jury was
permitted to convict based on charges not established at the preliminary hearing.” (Id. at
p. 349.) The defendant was initially charged with six such counts. At the preliminary
hearing, the victim testified to five incidents of lewd conduct committed by the
defendant, two of which involved defendant watching her masturbate. Because the
victim was not certain whether the masturbation incidents occurred before or after she
turned 16 years old, the magistrate dismissed the two counts that were based on these
incidents. After the hearing, an information was filed charging the defendant with three
counts of violating section 288, subdivision (c). (Id. at pp. 350-351.)
       At trial, the victim testified to the same five incidents of lewd conduct. She was
allowed to testify concerning the masturbation incidents “as indicative of motive or
intent” under Evidence Code section 1101. (Graff, supra, 170 Cal.App.4th at p. 352.)
This time, she testified she was 15 years old when the first masturbation incident
occurred, but was unsure when the second incident occurred. (Id. at p. 354.) In the
defense closing argument, defense counsel stated that there were “[n]o charge[s]
concerning the masturbation episodes.” (Id. at p. 357.) In rebuttal, the prosecutor
disagreed and argued the defendant could be convicted of “any lewd act that he
committed with [the victim] while she was 14 or 15 years old,” including the
masturbation incidents. (Id. at p. 358.) The jury convicted the defendant of two counts
of violation of section 288, subdivision (c). (Id. at p. 360.)

                                              25
       The Court of Appeal reversed, holding that the defendant‟s “due process rights to
notice of the charges against him were violated by the prosecution‟s decision to go
forward with charges not established at the preliminary hearing.” (Graff, supra, 170
Cal.App.4th at p. 360.) The court first explained the magistrate was correct in ruling “the
prosecution failed to present evidence [at the preliminary hearing] that the masturbation
incidents fell within the time frame necessary to establish a section 288,
subdivision (c)(1), violation.” (Id. at p. 361.) The court then explained “the prosecution
did not seek, and the trial court did not permit, an amendment [of the information] at any
time.” (Id. at p. 362.) In response to the Attorney General‟s argument that “ „the trial
court‟s act of allowing the jury to convict [defendant] on the basis of [the masturbation]
incidents amounted to a constructive amendment‟ ” of the information, the court
explained such an amendment would not have been proper because “late amendments are
not permitted where the defendant would be prejudiced. [The defendant] was prejudiced
by the failure of the prosecution to make its theory clear prior to the last phase of closing
argument. In cross-examining [the victim], defense counsel had no reason to pin down
the dates of the masturbation incidents or to impeach [the victim] with her earlier
testimony that she could not remember when either of the incidents occurred.” (Ibid.)
The court further explained that, “even where the prosecution complies with the
necessary procedures and no specific prejudice is shown, appellate courts are compelled
to reverse convictions where substantial evidence was presented at trial that did not
correspond to the charges established at the preliminary hearing.” (Ibid.)
       Defendant argues: “Thus, Graff stands for the proposition that the amendment of
an accusatory pleading after the close of evidence to place in dispute an essential element
previously of no real consequence prejudices a defendant‟s „substantial rights‟ if the
element presents fertile grounds for cross-examination.” “[B]ecause the most crucial
evidence against [defendant] was already closed,” i.e., Cindy H.‟s conditional
examination testimony, the amendment adding the one-strike torture allegation “had all

                                             26
the hallmarks of a „late amendment.‟ ” Defendant argues he was prejudiced by this late
amendment because: “Had defense counsel known that the relationship between the
torture and sexual penetration charges was at issue when he examined [Cindy H.] ‒ -
indeed so much so as to elevate [defendant‟s] exposure to 25 years to life imprisonment
‒ - he could have questioned her in an effort to undermine any connection between the
two.” We disagree for two reasons.
       First, defendant mischaracterizes the holding in Graff, supra, 170 Cal.App.4th
345. As explained, Graff held that the defendant‟s “due process rights to notice of the
charges against him were violated by the prosecution‟s decision to go forward with
charges not established at the preliminary hearing.” (Graff, supra, 170 Cal.App.4th at
p. 360.) Here, Cindy H.‟s preliminary hearing testimony established that defendant
“inflict[ed] great bodily injury” on her “with the intent to cause cruel or extreme pain and
suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.”
(§ 206.) This testimony also established that he did so “in the commission of” the crime
of unlawful sexual penetration with a foreign object. (§ 667.61, subd. (d)(3).)
Accordingly, unlike Graff, the information in this case was not amended to add a charge
or enhancement allegation that was not established at the preliminary hearing.
       Second, we disagree that defendant was prejudiced by the amendment because his
attorney was unable to question Cindy H. concerning the connection between the torture
and the sexual assault. As we explained in the previous section of this opinion, defendant
had an adequate opportunity to cross-examine Cindy H. concerning the facts surrounding
the torture during the conditional examination. As defendant acknowledges, Cindy H.
testified that defendant inserted the batteries into her rectum after she was already
paralyzed. Nevertheless, defendant posits that his attorney “could have sought to elicit,
for example, that [defendant] penetrated [Cindy H.] before he subjected her to any
serious physical abuse, i.e., just after she voluntarily took off her bathing suit bottom to
become completely naked before him.” However, even if defendant inserted the batteries

                                              27
into Cindy H.‟s rectum before he viciously assaulted her, this would not negate the
connection between the sex offense and the torture for purposes of section 667.61
subdivision (d)(3). Indeed, this order of events would cause the case to more closely
resemble Jones, supra, 25 Cal.4th 98, where the sex offense was technically completed
before the knife was used to maintain control over the victim. Similarly, here, even if the
sex offense was technically completed before the torture began, this offense still “was
more culpable” because defendant used the subsequent debilitating assault to maintain
control over his victim. (Id. at p. 110.)
       Defendant further posits that “counsel could have sought to elicit that [Cindy H.]
and/or [defendant] left and then returned to the apartment after the sexual penetration and
before the torture. If such cross-examination were successful, it would have undermined
that [defendant] maintained control over [Cindy H.] during one „continuous transaction‟
involving both the sex crime and torture.” This is pure speculation. Cindy H. testified
quite clearly that she was paralyzed when the sexual assault occurred. Thus, she did not
possess the ability to leave the apartment. And even if defendant left, this would not have
lessened the control he had over Cindy H. by virtue of her inability to move. Further, it
does not matter whether defendant left and came back because torture can be committed
by a course of conduct over time. (People v. Hamlin (2009) 170 Cal.App.4th 1412,
1427-1429.) We find no prejudice.
       Nor are we persuaded by defendant‟s reliance on Berkowitz, supra, 68 Cal.App.3d
Supp. 9. There, a misdemeanor complaint charging the defendant with two counts of
practicing medicine without a license was amended at the close of the trial to add two
new counts alleging he also dispensed dangerous drugs without a good faith prior
examination. (Id. at p. 12.) With respect to the newly-added counts, the appellate
department of the Los Angeles County Superior Court reversed the defendant‟s
convictions, explaining: “We think that the action of the trial court clearly prejudiced the
substantial rights of the defendant. As a matter of elemental due process it prevented his

                                             28
counsel from conducting research to see whether testimony could be presented to
overcome the new charge. It requires no citation of authority to state the proposition that
the giving of notice is a basic essential of due process.” (Id. at p. 14.) Acknowledging
the rule that trial amendments in felony cases are limited to charges supported by the
evidence at the preliminary hearing, the People argued misdemeanor cases “are not as
serious and „it is more a matter of determining the propriety and fairness of adding a new
count‟ in a misdemeanor case.” (Ibid.) The court responded “that the unfairness is
inherent in requiring an unprepared and unforewarned defendant to submit an already
tried case to a jury without any opportunity to think about a defense to a newly
interposed charge.” (Id. at pp. 14-15.)
       Here, unlike Berkowitz, supra, 68 Cal.App.3d Supp. 9, the amendment was
supported by evidence taken at the preliminary hearing. This supplied sufficient notice to
satisfy defendant‟s due process rights.
       There was no due process violation. And for reasons expressed previously, we
also find no violation of defendant‟s right of confrontation.
                                              III
                    Denial of Defendant’s Request for a Continuance
       In the alternative, defendant claims the trial court prejudicially erred when it
denied his motion for a continuance rather than construe that motion as a request to
discharge the jury, declare a mistrial, and have the case set for trial at a later date. Not so.
       “Granting or denying a motion for midtrial continuance is within the sound
discretion of the trial court, which must consider not only the benefit the moving party
anticipates, but also the likelihood the benefit will result.” (People v. Gonzales (2011) 52
Cal.4th 254, 291.) The trial court must also consider “ „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

                                              29
a reversal of a judgment of conviction.‟ ” (Zapien, supra, 4 Cal.4th at p. 972; People v.
Fudge (1994) 7 Cal.4th 1075, 1105-1106.)
        As mentioned, defendant objected to playing Cindy H.‟s conditional examination
for the jury and asked for a continuance of an unspecified duration, as he put it, “to see if
we can obtain [Cindy H.‟s] testimony either live or by video conference.” The trial court
denied the motion, noting that Cindy H. could be on the ventilator for two or three weeks
and may lose the ability to speak if a tracheotomy is performed. The trial court also
noted that, “in the best case scenario, it would be at least a month before she could testify
in a reasonable and informed way,” and there was “no guarantee at all that [she] will be
available to testify” because “she may not survive at all.” The trial court concluded: “So
there is not a rationale [sic] reason to continue based on really only a possibility that at
some future point far beyond the normal termination of this trial that [Cindy H.] would be
able to testify.”
        We find no abuse of discretion. Nor does defendant argue the requested
continuance should have been granted. Instead, citing People v. Ramirez (1972) 27
Cal.App.3d 660 (Ramirez), he argues the trial court should have construed his motion for
a continuance as a request to discharge the jury, declare a mistrial, and have the case set
for trial at a later date.
        In Ramirez, the defendant was arraigned on an information charging him with
escape from state prison. He pled not guilty. After the jury was sworn, the trial court
allowed the prosecution to amend the information to add a charge of escape by a person
committed as a narcotic addict. Defense counsel requested a continuance of “[t]wo or
three weeks” to prepare to go to trial on the new charge. (Ramirez, supra, 27 Cal.App.3d
at pp. 668, 663.) The trial court granted the continuance and asked defense counsel
whether the case should be referred back to the criminal department for the setting of a
new trial date. Counsel agreed. The trial court then assigned the case back to the
criminal department and discharged the jury. Following the subsequent trial, defendant

                                              30
appealed his conviction and argued that double jeopardy principles barred retrial on the
charge of escape. (Id. at p. 668.) The Court of Appeal disagreed, holding that defendant
had impliedly consented to the discharge of the jury through his attorney‟s request for a
continuance of two to three weeks together with his request that the case be referred back
to the criminal department for the setting of a new trial date. (Id. at pp. 669-670.)
       Nothing in Ramirez, supra, 27 Cal.App.3d 660 suggests the trial court has a sua
sponte duty to construe a motion for a lengthy midtrial continuance as a request to
discharge the jury, declare a mistrial, and have the case set for trial at a later date.
Moreover, had the trial court done so, an argument could be made that, unlike Ramirez,
defendant‟s attorney did not request that the case be referred back to the criminal
department for the setting of a new trial date. Thus, discharge of the jury may well have
prevented retrial. We need not resolve this question here. We do hold that the trial court
was not required to construe defendant‟s motion for a continuance as a request to
discharge the jury and declare a mistrial.
                                               IV
                      Admission of a Prior Act of Domestic Violence
       We also reject defendant‟s contention the trial court prejudicially erred in
admitting into evidence a July 4, 1998, act of domestic violence perpetrated against
defendant‟s former girlfriend, Cynthia Nielsen.
                                               A.
                                   Additional Background
       Nielsen testified to four incidents of domestic violence committed by defendant
between 1998 and 1999. The consumption of alcohol preceded each assault. Because
defendant challenges the admission of only the first of these assaults, we shall not recite
the details of the other three incidents.
       Defendant moved in with Nielsen and her daughter sometime in 1997. On July 4,
1998, after visiting a bar and attending a barbeque, defendant and Nielsen were driving to

                                               31
defendant‟s mother‟s house to pick up Nielsen‟s daughter. As Nielsen drove, defendant
started hitting her. She stopped the car, got out, and ran across a field. Defendant gave
chase, caught up to her, and “started beating on [her] in the face.” When she fell to the
ground, defendant climbed on top of her and continued the assault. He then “put his
hands around [her] throat, and he said „I‟ve never killed anyone before, but now I have to
kill you.‟ ” While she was being choked, Nielsen managed to say her daughter‟s name,
which prompted defendant to release her throat. Still on top of Nielsen, defendant “just
sat back” and “looked at [her].” Nielsen said: “We have to go.” They then went back to
the car and continued on to defendant‟s mother‟s house. When they arrived, Nielsen
screamed out for her daughter, who ran outside to see what was going on. Nielsen and
her daughter then ran “six or eight blocks” to a friend‟s house, where police and
paramedics were called. Nielsen was taken to the hospital. While there were no broken
bones, “both eyes were black and swollen” and she “had bruises all over.”
                                               B.
                                            Analysis
         Generally, “evidence of a person‟s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of specific
instances of his or her conduct) is inadmissible when offered to prove his or her conduct
on a specified occasion.” (Evid. Code, § 1101, subd. (a).) However, with certain
exceptions, Evidence Code section 11096 provides that, “in a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant‟s commission of other domestic violence is not made inadmissible by Section
1101 if the evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a)(1).)
One such exception is found in subdivision (e), which provides: “Evidence of acts




6   References to subdivisions of section 1109 are to Evidence Code section 1109.

                                               32
occurring more than 10 years before the charged offense is inadmissible under this
section, unless the court determines that the admission of this evidence is in the interest
of justice.” (§ 1109, subd. (e).)
       Thus, where a prior act of domestic violence is not more than 10 years old,
evidence of the act is admissible unless the trial court determines the “probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, §§ 352, 1109, subd. (a)(1).) Where the
prior act of domestic violence is more than 10 years old, evidence of the act is
inadmissible unless the trial court determines “the admission of this evidence is in the
interest of justice.” (§ 1109, subd. (e).) Both determinations are reviewed for abuse of
discretion. (People v. Johnson (2010) 185 Cal.App.4th 520, 531, 539 (Johnson).)
       Here, as defendant correctly observes, the July 4, 1998, act of domestic violence
committed against Nielsen occurred more than 10 years before the charged crimes,
subjecting it to the “more stringent standard of admissibility” of subdivision (e).
(Johnson, supra, 185 Cal.App.4th at p. 539.) However, “the „interest of justice‟
requirement obviously was not intended to present an insurmountable obstacle to
admission of more remote prior conduct. Nor do we think subdivision (e) necessitates an
inquiry different in kind from that involved in a determination under [Evidence Code]
section 352. The [Evidence Code] section 352 balancing approach gives consideration to
both the state‟s interest in a fair prosecution and the individual‟s constitutional rights.
We believe this same type of analysis is appropriate for the „interest of justice‟ exception
under subdivision (e). [¶] To the extent a higher degree of scrutiny is called for, it is the
conclusion drawn from the balancing test, not the process itself, that must change under
subdivision (e). Under subdivision (a)(1) and [Evidence Code] section 352, evidence
may be excluded only where its probative value is „substantially outweighed‟ by its
prejudicial effect [or the other statutory counterweights, i.e., undue consumption of time,

                                              33
confusion of the issues, and misleading the jury]. Though it reversed the presumption in
subdivision (e), we believe the Legislature intended to allow admission of evidence
whose probative value weighs more heavily on those same scales.” (Ibid.)
                                              1.
                                      Probative Value
       The probative value of the July 4, 1998, incident was great. “ „The principal factor
affecting the probative value of an uncharged act is its similarity to the charged offense.
Other factors affecting the probative value include the extent to which the source of the
evidence is independent of the charged offense, and the amount of time between the
uncharged acts and the charged offense.‟ ” (People v. Hollie (2010) 180 Cal.App.4th
1262, 1274.) “Section 1109 was intended to make admissible a prior incident „similar in
character to the charged domestic violence crime, and which was committed against the
victim of the charged crime or another similarly situated person.‟ [Citation.] Thus, the
statute reflects the legislative judgment that in domestic violence cases, as in sex crimes,
similar prior offenses are „uniquely probative‟ of guilt in a later accusation. [Citation.]
Indeed, proponents of the bill that became section 1109 argued for admissibility of such
evidence because of the „typically repetitive nature‟ of domestic violence. [Citation.]
This pattern suggests a psychological dynamic not necessarily involved in other types of
crimes. [Citation.]” (Johnson, supra, 185 Cal.App.4th at p. 532; see also People v.
Hoover (2000) 77 Cal.App.4th 1020, 1027-1028.)
       Here, the July 4, 1998, incident was similar in character to the charged crimes and
was committed against a similarly situated person. Prior to each incident, defendant had
been drinking. In both incidents, defendant violently assaulted his girlfriend in a manner
that made it difficult for her to get help. This was accomplished in the July 4, 1998,
incident by assaulting Nielsen on a rural road, where her only means of escape was
running through a field. In the charged crimes, as well as the other assaults committed
against Cindy H., defendant blocked her access to the door to the apartment and either

                                             34
told her to remove her clothes or removed them for her. While factually different, it can
be inferred from each incident that defendant‟s motive was to prevent his victim‟s escape.
Moreover, both incidents involved a level of violence that required trips to the hospital.
In the July 4, 1998, incident, defendant severely beat, choked, and threatened to kill
Nielsen. In the charged crimes, defendant broke Cindy H.‟s spine, resulting in
quadriplegia.
       Paraphrasing the opinion in Johnson, supra, 185 Cal.App.4th at page 533, the
common factors in each incident strongly suggest defendant has a problem with anger
management, specifically with regard to female intimate partners, and specifically when
he has been drinking. He has also shown a pattern of attempting to limit their means of
escape and inflicting serious injury during the assault. “Whatever the psychological
forces at work, the Legislature has concluded that in these types of cases, evidence of
past domestic violence is particularly probative of the likelihood to repeat such
behavior.” (Ibid.)
       We also note the probative value of the July 4, 1998, incident is enhanced by the
fact that Nielsen‟s testimony was independent of the charged offenses. (Johnson, supra,
185 Cal.App.4th at p. 533.) And while more than 10 years passed between the July 4,
1998, incident and the charged offenses, defendant has not “led a substantially blameless
life in the interim.” (Id. at p. 534.) Indeed, the July 4, 1998, incident was the first of four
assaults committed against Nielsen. In each of those assaults, defendant continued the
pattern of becoming violent after drinking. This pattern continued when he became
intimately involved with Cindy H. The incident that encompasses the charged offenses
was the last of “four or five” assaults against her. Thus, the passage of about 11 years
between the July 4, 1998, incident and the charged crimes does not “significantly lessen
the probative value of [the] evidence.” (People v. Ewoldt (1994) 7 Cal.4th 380, 405
[uncharged molestation incident involving prior victim occurred about 12 years prior to
trial; probative value not significantly lessened because only a few years elapsed between

                                              35
the time defendant stopped molesting that victim and started molesting victim of the
charged crimes].)
                                                 2.
                Prejudicial Effect and the Other Statutory Counterweights
       The probative value of the July 4, 1998, incident was not outweighed by the
danger of undue prejudice. “ „The factors affecting the prejudicial effect of uncharged
acts include whether the uncharged acts resulted in criminal convictions and whether the
evidence of uncharged acts is stronger or more inflammatory than the evidence of the
charged offenses.‟ ” (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.)
       Here, as was the case in Johnson, supra, 185 Cal.App.4th 520, defendant was
convicted of the July 4, 1998, assault on Nielsen. “Although the jury was not so
informed, the fact that the prior misconduct had resulted in conviction . . . reduced the
likelihood that defendant could have produced evidence to rebut [Nielsen‟s] testimony.
Therefore, the unfairness of forcing a defendant to mount a defense against evidence of a
long-past incident was not a legitimate consideration in this case.” (Id. at p. 533.)
       Also like Johnson, supra, 185 Cal.App.4th 520, the July 4, 1998, incident was
“somewhat inflammatory.” (Id. at p. 533.) Defendant assaulted Nielsen, chased her into
a field to continue the assault, threatened to kill her, and then choked her, stopping only
after she said her daughter‟s name. However, the trial court concluded this incident was
“less severe than the incident charged,” which it characterized as “one of the more severe
instances of domestic violence this court has seen outside, of course, of murder.” We
agree with this assessment. While damaging, the July 4, 1998, incident was not unduly
prejudicial. “[E]vidence is unduly prejudicial under [Evidence Code] section 352 only if
it „uniquely tends to evoke an emotional bias against the defendant as an individual and
. . . has very little effect on the issues‟ [citation], or if it invites the jury to prejudge „“a
person or cause on the basis of extraneous factors.”‟ [Citation.] „Painting a person



                                                 36
faithfully is not, of itself, unfair.‟ ” (Id. at p. 534, quoting People v. Harris (1998) 60
Cal.App.4th 727, 737.)
       Finally, presentation of the July 4, 1998, incident did not “necessitate undue
consumption of time” or “create substantial danger of . . . confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) Nielsen‟s testimony about this incident
spanned slightly more than two pages of transcript. She covered all four prior incidents
in less than seven pages of transcript. With respect to confusing the issues or misleading
the jury, more than eight years elapsed between the last assault on Nielsen and the first
assault on Cindy H. Thus, like Johnson, supra, 185 Cal.App.4th 520, “[t]he past acts of
violence were separated by time and involved [a] different victim[] and witness[]. And
there was no deception or confusion engendered by the arguments of counsel.” (Id. at
p. 533.)
       The trial court did not abuse its discretion in concluding the July 4, 1998, assault
against Nielsen was admissible under section 1109, subdivision (e).
                                               V
                               Sexual Penetration Instruction
       Defendant further asserts his sexual penetration conviction must be reversed
because CALCRIM No. 1045 “related the necessary mental state of sexual abuse,
gratification or arousal to only the prohibited act of sexual penetration.” Defendant
argues this instruction should also have related this mental state to “the means by which
the sexual penetration is accomplished, i.e., the application of force, fear etc.” Defendant
did not object to this instruction at trial. “Failure to object to instructional error forfeits
the issue on appeal unless the error affects defendant‟s substantial rights. [Citations.]
The question is whether the error resulted in a miscarriage of justice under People v.
Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th
919, 927.) We find no error, much less a miscarriage of justice.



                                               37
       Section 289, subdivision (a)(1)(A), provides: “Any person who commits an act of
sexual penetration when the act is accomplished against the victim‟s will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the state prison for three,
six, or eight years.” Subdivision (k)(1) of this section provides: “ „Sexual penetration‟ is
the act of causing the penetration, however slight, of the genital or anal opening of any
person or causing another person to so penetrate the defendant‟s or another person‟s
genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any
foreign object, substance, instrument, or device, or by any unknown object.”
       As relevant to the claimed instructional error, CALCRIM No. 1045 informed the
jury: “The defendant is charged in Count Four with sexual penetration by force in
violation of . . . Section 289. To prove that the defendant is guilty of this crime, the
People must prove that: [¶] 1.) The defendant committed an act of sexual penetration
with another person. [¶] 2.) The penetration was accomplished by using a foreign
object. [¶] 3.) The other person did not consent to the act. [¶] And 4.) The defendant
accomplished the act by force, violence, duress, menace or fear of immediate and
unlawful bodily injury to another person. [¶] Sexual penetration means penetration
however slight of the anal opening of the other person for the purpose of sexual abuse,
arousal or gratification. [¶] Penetration for sexual abuse means penetration for the
purpose of causing pain, injury or discomfort.”7


7 The instruction continued: “In order to consent, a person must act freely and
voluntarily and know the nature of the act. [¶] Evidence that the defendant and the other
person dated is not enough by itself to constitute consent. . . . [¶] An act is accomplished
by force if a person uses enough physical force to overcome the other person‟s will. [¶]
Duress means a direct or implied threat of force, violence, danger, hardship or retribution
that is enough to cause a reasonable person of ordinary sensitivity to do or to submit to
something that she [or he] would not otherwise do or submit to. [¶] When deciding
whether the act was accomplished by duress, consider all the circumstances including the
age of the other person and her [or his] relationship to the defendant. [¶] Retribution is a

                                              38
       The trial court also instructed the jury with CALCRIM No. 252, providing that
“[t]he crimes and other allegations charged in this case require proof of the union or joint
operation of act and wrongful intent,” and described “unlawful sexual penetration with
the foreign object as charged in Count Four” as a “specific intent” crime, requiring that
defendant “must not only intentionally commit the prohibited act or intentionally fail to
do the required act, but must do so with a specific intent and mental state. The act and
the specific intent and mental state required are explained in the instruction for that crime
or allegation.”
       Defendant claims the specific intent required for the crime of unlawful sexual
penetration is like that required for the crime of robbery. He argues: “The mental state
for robbery, the intent to permanently deprive, applies to two acts necessary for
commission of the offense ―- (1) the taking of the victim‟s property and (2) the means
by which the taking is accomplished, i.e., the application of force or fear. [Citation.] If
the defendant applies force to the victim for a purpose unrelated to theft, such as anger,
fear, jealousy, or revenge, and then, seeing the victim disabled, decides to take advantage
of the situation by taking an item of his or her personal property, the offense is not
robbery because „there is no “joint operation of act and intent. . . .”‟ [Citations.] The
pattern instruction defining robbery explicitly requires concurrence between the
prohibited mental state and both prohibited acts, the taking of property and the
application of force or fear. [Citation.] Due to the similarities in definition between the




form of payback or revenge. [¶] Menace means a threat, statement or act showing an
intent to injure someone. [¶] An act is accomplished by fear if the other person is
actually and reasonably afraid. [¶] The defendant is not guilty of forcible sexual
penetration if he [or she] actually and reasonably believed that the other person consented
to the act. The People have the burden of proving beyond a reasonable doubt that the
defendant did not actually and reasonably believe that the other person consented. [¶] If
the People have not met this burden, you must find the defendant not guilty.”

                                             39
crimes of robbery and sexual penetration with a foreign object, their concurrence
requirements should be interpreted similarly.”
       The Attorney General argues the crime of unlawful sexual penetration is a general
intent crime, requiring defendant to have harbored only the intent to commit the acts
constituting the crime. According to the Attorney General‟s view, “[t]he fact that the
term „sexual penetration‟ is defined as being for the purposes of sexual abuse[,] arousal[,]
or gratification does not mean that the force, violence, or duress be inflicted with the
specific intent to commit the act of sexual penetration. [Citations.]”
       The case law only tangentially addresses whether the crime of unlawful sexual
penetration is a specific or general intent crime and appears to be in conflict.
       In People v. Dillon (2009) 174 Cal.App.4th 1367, the defendant claimed
CALCRIM No. 890, the pattern jury instruction for the crime of assault with intent to
commit unlawful sexual penetration (§ 220) was deficient for failing to inform the jury
that the prosecution had the burden of proving lack of consent. (Id. at p. 1378.)
Agreeing with the defendant that section 220 “requires not only the specific intent to
commit the underlying sexual act, but a specific intent to commit that act without the
consent of the victim,” the Court of Appeal nevertheless held that “[a] reasonable juror
reviewing CALCRIM No. 1045, as instructed by CALCRIM No. 890, would conclude
that unless he acted against the will or consent of the complainant, [the defendant] could
not have held the specific intent to commit the crime of penetration of the genital opening
of another by force, and therefore could not be guilty of the lesser included assault
offense as defined in CALCRIM No. 890.” (Id. at p. 1379.)
       Rejecting the defendant‟s argument that “because CALCRIM No. 1045 fails to
define the intent required for the crime of forcible sexual penetration, the jury would be
unable to determine from looking at CALCRIM No. 1045 whether the defendant had the
intent to commit that offense when he performed the act constituting the assault,” the
Court of Appeal stated: “As [the defendant] and the People both agree, and contrary to

                                             40
the trial court‟s instruction under CALCRIM No. 252, forcible sexual penetration is a
general intent crime. The defendant need not harbor the intent to commit a crime as long
as he intended to commit the act or acts constituting the crime. But the mental state
required to be found guilty of forcible sexual penetration is not the same as the specific
intent to commit that crime. [Citation.] Reading CALCRIM No. 1045 to determine the
intent required under CALCRIM No. 890, jurors would reasonably conclude that if the
prosecution failed to prove the complainant‟s lack of consent, the defendant could not be
guilty of assault with intent to commit forcible sexual penetration.” (People v. Dillon,
supra, 174 Cal.App.4th at p. 1380.)
       In People v. Senior (1992) 3 Cal.App.4th 765, the defendant claimed the trial court
erred by failing to instruct the jury that the crime of unlawful sexual penetration required
the specific intent to commit the offense “by „force, violence, duress, menace, or fear of
immediate and unlawful injury.‟ ” (Id. at p. 776.) The Court of Appeal disagreed,
explaining: “This element . . . does not require a specific intent. It describes types of
intimidating conduct by the defendant and not any particular state of mind of the
defendant. . . . The only specific intent involved in foreign object penetration is „the
purpose of sexual arousal, gratification, or abuse.‟ (§ 289, subd. (a).)” (Ibid.; see also
People v. Stone (1994) 27 Cal.App.4th 276, 282-283 [assuming defendant submitted case
on basis of victim‟s grand jury testimony, Court of Appeal held this did not amount to a
slow plea of guilty because defendant did not concede guilt on charges but instead
argued, among other things, that foreign object penetration was not done for sexual
arousal or gratification and that voluntary intoxication negated specific intent].)
       Based on the language of section 289 and our Supreme Court‟s guidance with
respect to the difference between specific and general intent crimes, we conclude the
crime of unlawful sexual penetration requires the specific intent to gain sexual arousal or
gratification or to inflict abuse on the victim. However, as long as the act of penetration
is done with this specific intent, and that act is “accomplished against the victim‟s will by

                                             41
means of force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person” (§ 289, subd. (a)(1)(A)), the crime has been
committed. This is so regardless of whether the force, violence, duress, menace, or fear
is also used with the intent to gain sexual arousal or gratification or to inflict abuse on the
victim.
       “ „When the definition of a crime consists of only the description of a particular
act, without reference to intent to do a further act or achieve a future consequence, we ask
whether the defendant intended to do the proscribed act. This intention is deemed to be a
general criminal intent. When the definition refers to defendant‟s intent to do some
further act or achieve some additional consequence, the crime is deemed to be one of
specific intent.‟ [Citation.]” (People v. Atkins (2001) 25 Cal.4th 76, 82.) Stated
differently: “ „A crime is characterized as a “general intent” crime when the required
mental state entails only an intent to do the act that causes the harm; a crime is
characterized as a “specific intent” crime when the required mental state entails an intent
to cause the resulting harm.‟ [Citation.]” (Id. at p. 86.) “Language that typically denotes
specific intent crimes” includes “ „with the intent‟ to achieve or „for the purpose of‟
achieving some further act.‟ ” (Ibid.) In determining whether the Legislature intended to
create a general or specific intent crime, we must look to the language of the statute.
       Issues of statutory interpretation are questions of law subject to de novo review.
(Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492.) “Our fundamental task in
interpreting a statute is to determine the Legislature‟s intent so as to effectuate the law‟s
purpose. We first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory language permits more than

                                              42
one reasonable interpretation, courts may consider other aids, such as the statute‟s
purpose, legislative history, and public policy. [Citations.]” (Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737; San Leandro
Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th
822, 831.)
       As mentioned, section 289, subdivision (a)(1)(A), makes it a felony to commit “an
act of sexual penetration when the act is accomplished against the victim‟s will by means
of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person.” Read in isolation, this subdivision appears to set forth a
general intent crime. (See People v. DePriest (2007) 42 Cal.4th 1, 48 [“Forcible rape is a
general intent crime involving an act of sexual intercourse accomplished against the
victim‟s will by means of force or fear”].) However, we must read this subdivision
together with subdivision (k)(1) of section 289, which defines the act of sexual
penetration to be “the act of causing the penetration, however slight, of the genital or anal
opening of any person or causing another person to so penetrate the defendant‟s or
another person‟s genital or anal opening for the purpose of sexual arousal, gratification,
or abuse by any foreign object, substance, instrument, or device, or by any unknown
object.” (§ 289, subd. (k)(1), italics added.) This definition refers to the defendant‟s
intent to achieve an “additional consequence,” i.e., arousal, gratification, or abuse.
(People v. Atkins, supra, 25 Cal.4th at p. 82.) Thus, in drafting section 289, the
Legislature required the act of penetration to be committed with the specific intent to gain
sexual arousal or gratification or to inflict abuse on the victim.
       CALCRIM No. 1045 accurately described the crime of unlawful sexual
penetration for the jury. And CALCRIM No. 252 correctly informed the jury that
defendant was required to possess the specific intent described in CALCRIM No. 1045.
We find no error.



                                              43
       Nor are we persuaded by defendant‟s analogy to the crime of robbery. “Robbery
is the felonious taking of personal property in the possession of another, from his [or her]
person or immediate presence, and against his [or her] will, accomplished by means of
force or fear.” (§ 211.) Thus, “[r]obbery is larceny with the aggravating circumstances
that „the property is taken from the person or presence of another‟ and „is accomplished
by the use of force or by putting the victim in fear of injury.‟ [Citation.]” (People v.
Anderson (2011) 51 Cal.4th 989, 994.) While the larceny statute (§ 484) does not set
forth the intent required, our Supreme Court has long held the crime to require a specific
intent to steal, i.e., “to deprive the owner of the property permanently.” (People v. Brown
(1894) 105 Cal. 66, 69; People v. Kunkin (1973) 9 Cal.3d 245, 251.) This specific intent
requirement is “part of the common law of larceny of which . . . section 484 is
declaratory.” (People v. Davis (1998) 19 Cal.4th 301, 318, fn. 15.) For purposes of
larceny, the intent to steal “must exist at the time of the taking and carrying away.”
(People v. Turner (1968) 267 Cal.App.2d 440, 444; § 20 [“In every crime or public
offense there must be a union, or joint operation of act and intent, or criminal
negligence”].) And while the robbery statute similarly does not set forth the intent
required, this crime also requires a specific intent to steal, which must exist at the time of
the act of force or intimidation used to accomplish the taking and carrying away. (People
v. Anderson, supra, 51 Cal.4th at p. 994; People v. Huggins (2006) 38 Cal.4th 175, 214.)
This too is part of the common law of robbery, of which section 211 is declaratory. (See
People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.)
       Thus, robbery has been described as “a combination of assault and larceny.” (2
Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 85,
p. 118.) In order to constitute robbery, both the assault and the larceny must have been
done with the specific intent to steal.
       In contrast to robbery, the crime of unlawful sexual penetration contains an
express intent requirement that applies only to the act of penetration. (§ 289, subd.

                                              44
(k)(1).) We decline to extend this intent requirement to the act of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury. To do so would contravene the
plain meaning of the statute. Nor is the crime of unlawful sexual penetration a
combination of assault and another offense, with common law roots requiring the specific
intent necessary to commit the other offense at the time of the assault. As we have
explained, the Legislature did not remain silent with respect to the intent necessary to
commit the crime. It required the act of penetration to be done with the intent to gain
sexual arousal or gratification or to inflict abuse on the victim, no more and no less.
(§ 289, subds. (a)(1)(A) & (k)(1).)
       The trial court did not err by instructing the jury with CALCRIM No. 1045. And,
in any event, any error would be harmless in light of the fact that the intent required to
commit the act of sexual penetration includes an intent to abuse, meaning “to injure or
hurt badly, not lewdness.” (People v. White (1986) 179 Cal.App.3d 193, 205.)
Assuming the jury should have been instructed defendant was required to possess the
specific intent to gain sexual arousal or gratification or to inflict abuse on Cindy H. while
committing the assault that enabled him to penetrate her rectum with the batteries, based
on these facts, we have no doubt the jury would have found he possessed the intent to
abuse her during both the assault and the sexual penetration.
                                             VI
                    Denial of Defendant’s Motion to Replace Counsel
       Defendant also contends the trial court “mishandled” his final Marsden motion,
which was considered the same day as a new trial motion, by failing to inquire into his
“complaint that trial counsel had provided ineffective assistance in failing to develop
mental state evidence during trial and in connection with [the] pending new trial motion.”
We are not persuaded.




                                             45
                                             A.
                                      Applicable Law
       Our Supreme Court recently reiterated the rules governing the grant and review of
Marsden motions: “„In [Marsden, supra, 2 Cal.3d 118], we held that a defendant is
deprived of his [or her] constitutional right to the effective assistance of counsel when a
trial court denies his [or her] motion to substitute one appointed counsel for another
without giving him [or her] an opportunity to state the reasons for his [or her] request. A
defendant must make a sufficient showing that denial of substitution would substantially
impair his [or her] constitutional right to the assistance of counsel [citation], whether
because of his [or her] attorney‟s incompetence or lack of diligence [citations], or
because of an irreconcilable conflict [citations]. We require such proof because a
defendant‟s right to appointed counsel does not include the right to demand appointment
of more than one counsel, and because the matter is generally within the discretion of the
trial court. [Citation.]‟ [Citation.] When reviewing whether the trial court abused its
discretion in denying a Marsden motion, we consider whether it made an adequate
inquiry into the defendant‟s complaints. [Citation.]” (People v. Mungia (2008) 44
Cal.4th 1101, 1127-1128.)
                                              B.
                              Defendant’s Marsden Motions
       Defendant filed a series of Marsden motions in this case. We need not recite in
detail the facts surrounding each motion because, except for the final motion, defendant
candidly admits “the trial court conscientiously allowed [him] to voice his complaints
against counsel, allowed counsel to respond and, based on the information gathered, ruled
on whether substitution was warranted.” Accordingly, we provide an overview of
defendant‟s Marsden motions and recite in detail only the facts relating to the final
motion.



                                             46
                                             1.
                            Overview of the Marsden Motions
       The first Marsden motion was filed on October 7, 2010, and withdrawn the same
day.
       On November 9, 2010, defendant made an oral Marsden motion. Among other
things, defendant complained that his attorney had not spent an appropriate amount of
time discussing the case with him. Defendant also complained that, when he asked his
attorney about whether he could have a competency hearing, his attorney responded that
“he didn‟t think [defendant] would qualify for it.” As mentioned, defendant concedes his
attorney addressed each of his concerns at the hearing on the motion. Nor does he
dispute that the trial court appropriately denied substitution. After denying the motion,
the trial court asked defense counsel to “check with records” and provide the court with
specific dates he met with defendant between September and November.
       On November 16, 2010, during jury selection, the trial court stated on the record:
“The defendant came in before we got on the record, expressed frustration about why he
was here. Used the word pro per and indicated he was on medication.” The trial court
then continued jury selection until the following day for defendant to speak to his
attorney.
       On November 17, 2010, the trial court explained it had ordered “any psychiatric
treatment records that [defendant] received in the jail be made available to [the court] in a
sealed fashion,” that the court had not looked at them, and would not look at them, unless
defense counsel expressed a doubt as to defendant‟s competency to stand trial. Defense
counsel then reviewed the “three-page document” and stated he did not intend to declare
a doubt about defendant‟s competency to stand trial. The trial court then heard from
defense counsel, outside the prosecutor‟s presence, concerning the specific dates he met
with defendant at the jail. When asked whether he still wanted to remove his current



                                             47
attorney as his counsel, defendant responded: “No.” The trial court confirmed its
previous ruling denying substitution.
       On November 30, 2010, the evidentiary phase of the trial began. On December 6,
2010, after the prosecution concluded its case-in-chief, defendant took the stand in his
own defense. In response to defense counsel‟s seventh question, asking defendant
whether he was present when Nielsen testified, defendant responded: “Your Honor, I ask
for a mistrial. [My attorney] has been treating my case as I am [sic] guilty. I been [sic]
in jail all this whole time chained to this chair, chained to that chair.” The trial court
promptly interrupted defendant, cleared the courtroom, and asked if he was reasserting
his Marsden motion. Defendant responded: “Yes, your Honor, the whole thing.”
       Among other things, defendant complained: “Instead of just pleading guilty, your
Honor, there are other issues that I want brought up. He just refuse [sic] to listen to my
story that I had.” When asked to elaborate on these other issues, defendant stated:
“Well, just my mental state of mind at the time, that doesn‟t sound like a normal guy
doing this stuff.” Addressing this concern, defense counsel explained: “My particular
relationship with [defendant] is that I tried to be straight forward with him. What I have
explained to him is that there is substantial evidence. [¶] I think his best defense lies in
an absence of intent to kill and absence of intent to torture.” The trial court then asked
defense counsel whether he gave defendant an opportunity to explain “what his theory
was, why he was doing this or not doing that,” and whether defendant answered “at the
level of detail [defense counsel] would normally expect.” Defense counsel responded: “I
asked [defendant] repeatedly what his position was, how he would approach the facts of
that evening, and he‟s never really had much of an explanation other than -- and it is
consistent with our defense in this case, he never was trying to kill anybody. He wasn‟t
trying to hurt anybody. It was a drunken fight between a couple which under the law
that‟s not okay, but something of a pattern in his life. [¶] It is a felony assault because



                                              48
she was severely injured, but he was not trying to kill anybody. He wasn‟t trying to hurt
anybody, and that‟s been consistently his position on the case.”
       The trial court denied substitution, finding that defense counsel “had a good
understanding of [defendant‟s] point of view and attitudes about the case and his
opinion.” The trial court also addressed defendant‟s remaining concerns. Again,
defendant does not dispute that the trial court appropriately denied substitution.
Following the Marsden hearing, defendant decided not to testify. As mentioned, he was
convicted of torture, inflicting corporal injury on a cohabitant with an enhancement for
inflicting great bodily injury causing paralysis, and unlawful sexual penetration with a
one-strike finding he inflicted torture in the commission of the offense.
                                             2.
                           Defendant’s Final Marsden Motion
       On January 3, 2011, defendant filed a final Marsden motion. On February 1,
2011, defense counsel filed a new trial motion arguing that a new trial should be granted
because the admission of Cindy H.‟s conditional examination testimony violated
defendant‟s Sixth Amendment right of confrontation, the trial court further violated this
right by allowing the prosecution to amend the information to add the one-strike torture
allegation, and the trial court should not have allowed into evidence prior acts of
domestic violence.
       On February 4, 2011, before the hearing on the new trial motion, the trial court
heard from defendant concerning the Marsden motion. The trial court first explained it
had reviewed the record of the previous Marsden motions. Defendant then stated his
complaint: “I contacted [defense counsel] and asked him to come to the jail. . . . I told
[defense counsel] I found some evidence under Brady versus Maryland. I would like to
have him file motion [sic] for new trial. [¶] [Defense counsel] said no without even
listening to what I had to say.” Defendant elaborated: “[M]y witnesses were talking
about me passing out -- not passing out but blacking out. . . . [Y]ou asked [defense

                                             49
counsel] if I was competent to stand in court [sic]. Normally people do competency
hearing [sic], correct?” The trial court explained: “I don‟t answer those kind[s] of
questions because it depends on a whole complexity of facts. [¶] I am trying to get the
specific evidence that you brought to his attention or wanted to bring to his attention.”
Defendant answered: “Mental state of mind at the time of the crime.” He went on to
explain: “How I wanted to bring it up, the mental state of mind at the time. But I was
denied a competency hearing. [¶] I figured if I would had [sic] a competency hearing
that would have give[n] a qualified witness to testify to my state of mind.” Asked who
this witness was, defendant answered Cindy H. testified during the conditional
examination that he had blacked out in the past and Nielsen also had information
concerning incidents of defendant blacking out while they were dating.
       The trial court then clarified: “So this is how I‟m understanding your complaint.
Your complaint is that [defense counsel] should have filed a new trial motion based on
the failure to get a competency hearing, or to develop this information in front of the
jury?” Defendant answered by further complaining defense counsel did not provide him
with a copy of the trial transcript as he requested, defendant had to fight with defense
counsel over everything, defense counsel never came to see him during the proceedings,
defendant was not allowed to confront his accuser, and defense counsel told the jury
defendant was guilty during closing argument.
       Defense counsel responded by explaining he had met with defendant twice since
the jury returned its verdict. The first meeting was “tense.” Defendant wanted a copy of
the trial transcript in connection with the new trial motion, and possibly a motion to have
the judge removed from the trial. Defense counsel explained he did not see a basis to
order the transcript or have the judge removed, prompting defendant to become “upset”
and “frustrated.” The meeting ended in name calling. After this meeting, defense
counsel drafted and filed a new trial motion based on the issues set forth above. He then
returned to meet with defendant and had a “productive” meeting discussing the new trial

                                             50
motion and reviewing the probation report in anticipation of the sentencing hearing.
With respect to defendant‟s complaint concerning the closing argument, defense counsel
explained he discussed with defendant his strategy of conceding the assault on Cindy H.,
but attacking the charges of attempted murder and torture based on negating the specific
intent required for the commission of those crimes.
        The trial court denied the motion. With respect to the confrontation issue, the trial
court explained defense counsel was “very aggressive” in arguing that the conditional
examination should not be played for the jury. Defendant interrupted with: “He was.”
Turning to the competency issue, the trial court explained: “There was not given the
evidence that I heard both in these in camera hearings, Marsden hearings and outside of
it, the evidence to express a doubt, and I didn‟t[,] that would raise competency issues for
the trial.”
        The trial court then commented on the defense strategy: “It is a proper role for the
attorney to make strategic decisions. I know you can‟t see this, but [defense counsel]
crafted what I thought was a very shrewd defense given the facts as they existed on your
behalf. [¶] A defense that was based on reason, and a defense that was strong given the
facts that were in this case, and he was successful as to the attempted murder charge. His
argument and how he expressed that argument is within his discretion, but it was
certainly effective in part, and it was not unreasonable, and it was clearly an appropriate
strategy decision.” Turning to the request to review the trial transcript, the trial court
explained that “whether or not a copy of the trial transcript is helpful in filing the new
[trial] motion” is also a decision for counsel to make. Finally, the trial court found no
“fundamental breakdown” in the attorney-client relationship requiring substitution.
        Following the Marsden hearing, the trial court denied the new trial motion and
sentenced defendant to state prison to serve a term of 25 years to life.




                                              51
                                              C.
                                           Analysis
       Defendant complains the trial court “mishandled” the final Marsden motion by
failing to inquire into his “complaint that trial counsel had provided ineffective assistance
in failing to develop mental state evidence during trial and in connection with [the]
pending new trial motion.” According to defendant, “[t]he trial court knew from prior in
camera hearings that [defendant] was confused about what exactly „competency‟ meant,
but he had linked it to mental state and consistently expressed interest both in having his
„competency‟ tested and in contesting his mental state. At the previous Marsden hearing,
the court had also heard [defendant] complain that counsel had not adequately brought up
at trial „my mental state of mind at the time [of the crimes], that doesn‟t sound like a
normal guy doing this stuff.‟ Additionally, the court was aware that [Cindy H.] had
testified in her conditional examination that [defendant] expressed surprise and confusion
over [Cindy H.]‟s injuries after some of the beatings, drank regularly and had been
drinking during the charged incident.”
       Thus, argues defendant, the trial court was “on notice that one of [his] complaints
against counsel at the February 4, 2011, hearing was that counsel should have developed
for trial information about [defendant‟s] „blacking out‟ in regards to his mental state at
the time of the crimes, and counsel should have sought a new trial based on having failed
to do so. . . . [¶] Inexplicably, the trial court never made trial counsel address [this]
complaint. It could not, therefore, intelligently rule on whether counsel should be
removed because he was providing ineffective assistance.”8



8 Defendant further argues he stated during the February 4, 2011, hearing that “the
information [concerning his mental state] should have been developed in formal
proceedings by a „qualified witness,‟ presumably a mental health expert. The trial court
basically understood [defendant‟s] claim in this manner as reflected by its summary of
[defendant‟s] remarks.” This view of defendant‟s statements at the Marsden hearing is

                                              52
       We conclude the trial court made more than an adequate inquiry into defendant‟s
complaints. As mentioned, “a criminal defendant who seeks to substitute counsel must
be allowed to state the specific reasons for his [or her] dissatisfaction with counsel.”
(People v. Clemons (2008) 160 Cal.App.4th 1243, 1250.) That happened here. As
mentioned, the trial court understood defendant‟s complaint to be “that [defense counsel]
should have filed a new trial motion based on the failure to get a competency hearing, or
to develop this information[, i.e., evidence that defendant had blacked out in the past,] in
front of the jury.” This understanding is consistent with defendant‟s argument on appeal.
Thus, the trial court heard defendant‟s complaint.
       Once the trial court provides an opportunity to state specific reasons for
dissatisfaction with counsel, “it is within the trial court‟s discretion whether the
circumstances justify a substitution of counsel. Substitution is required if the record
clearly shows defense counsel is not providing adequate representation or there is such a
conflict between the defendant and counsel that ineffective assistance of counsel is likely
to result. The trial court‟s determination will not be disturbed on appeal absent a showing
that denial of the motion substantially impaired the defendant‟s right to the effective
assistance of counsel.” (People v. Clemons, supra, 160 Cal.App.4th at p. 1250.) While
the trial court did not ask defense counsel during the Marsden hearing to specifically
address defendant‟s complaint concerning his failure to put forth additional evidence of
defendant‟s purported blackouts, we conclude the trial court had sufficient information to
rule on the motion. Indeed, defendant acknowledges Cindy H. testified during the
conditional examination that the morning after some of the beatings, defendant expressed


belied by the record. As set forth above, defendant complained he tried to convince his
attorney to file a new trial motion based on evidence of his mental state. He then
complained he was denied a competency hearing, in which he believed a “qualified
witness” would testify to his mental state. When asked who this witness was, defendant
answered “both of them,” referring to Nielsen and Cindy H. Defendant was not referring
to a mental health expert.

                                              53
confusion about some of her injuries. Cindy H. was unavailable to testify at trial. Thus,
there was nothing defense counsel could have done to elicit further information
concerning defendant‟s purported blackouts through her testimony. And assuming
Nielsen had information about defendant not remembering his assaults on her, the trial
court could reasonably have concluded the failure to elicit such testimony would not have
supported the grant of a new trial. Without prejudice flowing from defense counsel‟s
allegedly deficient performance, the trial court could not have found merit in defendant‟s
claim of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S.
668, 687, 693-694.) For the same reason, we cannot find denial of the Marsden motion
substantially impaired defendant‟s right to the effective assistance of counsel.
Accordingly, reversal is not warranted.
                                            VII
                                    Sentencing Issues
       Finally, the parties agree the abstract of judgment does not accurately reflect the
oral pronouncement of judgment because it incorrectly states the sentence imposed
pursuant to section 667.61, subdivision (d)(3), was stayed. The parties further agree the
trial court neglected to impose sentence on counts 2 and 3 before staying the execution of
sentence pursuant to section 654. This resulted in an “unauthorized absence of sentence”
which must be corrected. (People v. Alford (2010) 180 Cal.App.4th 1463, 1472
(Alford).)
       While the parties agree there was error, they disagree on the appropriate remedy.
The Attorney General argues that, in order to avoid the “futility and expense” of a new
sentencing hearing, we should modify the judgment to impose a life term sentence on
count 2, an upper term sentence of four years on count 3, plus a consecutive five-year
term for the great bodily injury enhancement. Defendant argues we must either remand
the matter to the trial court for a new sentencing hearing or impose the middle term



                                             54
sentence on count 3. We conclude the matter should be remanded to the trial court for
the limited purpose of imposing sentence on counts 2 and 3.
       In Alford, supra, 180 Cal.App.4th 1463, the defendant committed burglary and
grand theft by entering a Wal-Mart, loading a shopping cart with over $500 worth of
meat and camping supplies, and attempting to leave the store without paying. The trial
court sentenced him to the middle term of two years for the burglary and stayed
imposition of sentence on the grand theft conviction under section 654. (Id. at pp. 1466-
1467.) We held this resulted in an “unauthorized absence of sentence” because “[a] trial
court must impose sentence on every count but stay execution as necessary to implement
section 654.” (Id. at p. 1472.) Citing the “futility and expense” of remanding the case to
the trial court for resentencing, we modified the judgment to impose the middle term
sentence of two years for the grand theft conviction, explaining, “that is undoubtedly the
sentence the trial court would have imposed, because the grand theft involved the same
conduct as the burglary.” (Id. at p. 1473.)
       Here, the trial court possesses no discretion but to impose a life term on count 2
(§ 206.1) and a five-year term for the great bodily injury enhancement attached to count 3
(§ 12022.7, subd. (b)). However, count 3 is punishable by “imprisonment in the state
prison for two, three, or four years.” (§ 273.5, subd. (a).) “Absent some agreement by
the defendant or the unavailability of the trial judge for other than internal administrative
problems or convenience of the court, or some other good cause shown, a defendant
should be able to have the trial judge who was familiar with the evidence at the trial
impose sentence.” (People v. Strunk (1995) 31 Cal.App.4th 265, 275-276, fn. 13.) In
Alford, we could conclude the trial court would have imposed the middle term sentence
on the defendant‟s grand theft conviction because the trial court imposed a middle term
sentence on the burglary conviction based on the same facts that supported the grand theft
conviction. Given the facts of this case, the trial court could impose the upper term
sentence. But it is not “undoubtedly” the case that the trial court will impose the upper

                                              55
term. (Alford, supra, 180 Cal.App.4th at p. 1473.) Accordingly, we must remand the
matter to the trial court for the limited purpose of imposing sentence on counts 2 and 3.
       We also direct the trial court to amend the abstract of judgment following
resentencing to reflect the sentences imposed on counts 2 and 3, and to further reflect that
the sentence imposed pursuant to section 667.61, subdivision (d)(3), was not stayed.
                                      DISPOSITION
       Defendant‟s convictions are affirmed. The matter is remanded to the trial court for
resentencing on counts 2 and 3. Following resentencing, the trial court shall amend the
abstract of judgment to reflect the sentences imposed on these counts and to reflect the
sentence imposed pursuant to Penal Code section 667.61, subdivision (d)(3), was not
stayed. A certified copy of the amended abstract of judgment shall be forwarded to the
Department of Corrections and Rehabilitation.



                                                      HOCH             , J.



We concur:



        ROBIE             , Acting P. J.



        MURRAY            , J.




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