P. v. Arredondo

Filed 6/20/08 P. v. Arredondo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Elizabeth A. Missakian, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General for Plaintiff and Respondent.

Defendant Joseph Mario Arredondo, Jr., a 28-year-old youth pastor, engaged in various sex acts with 15-year-old Jessica R. and 17-year-old Andrea Y., two students to whom he was providing spiritual counseling.

After a jury trial, defendant was found guilty of all eight charged counts including unlawful sexual intercourse with a minor more than three years younger than him (Pen. Code,^[1] 261.5, subd. (c)), three counts of unlawful oral copulation with a minor ( 288a, subd. (b)(1)), three counts of unlawful penetration of a minor with a foreign object ( 289, subd. (h)), and one count of unlawful sexual intercourse with a minor under 16 years of age by a person over 21 years of age. ( 261.5, subd. (d).)

This case is before us for a second time. In the original appeal, the People appealed an order of the trial court granting defendants motion for a new trial. On August 21, 2006, we filed an opinion reversing the trial courts grant of a new trial. Upon remand, defendant was sentenced to 13 years 4 months in state prison. Defendant timely filed a notice of appeal from that judgment.

In this appeal, defendant contends that the trial court committed several errors: (1) it erroneously instructed the jury with CALJIC No. 2.28, (2) it failed to give a limiting instruction on hearsay testimony, (3) it incorrectly overruled defense objections during defendants cross-examination, and (4) it improperly imposed the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). He also asserts that the prosecutor committed misconduct. We reject all of defendants contentions and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY^[2]

Defendant was the youth pastor at the New Beginnings Church in Corona. The youth group met on Sunday mornings and Tuesday nights. The victims, Andrea and Jessica, were members of that youth group.

Jessica first met defendant the summer before her sophomore year of high school, when she was 14 years old. Defendant counseled her while her parents were going through a divorce. Jessicas mother had also wanted her to receive counseling because of her sexual activity.

During a retreat the following summer, in 2002, Jessica and defendant spent a significant amount of time together and began developing a mutual attraction. After the retreat, they continued to spend time with each other outside of church functions.

On September 11, 2002, defendant called Jessica and invited her over to his house. After she arrived, they went into defendants bedroom, where they engaged in vaginal intercourse. They again had sex at defendants house about two weeks later. After the second time, they met together for sex almost once a week. They sometimes met at a motel to be alone because defendant and his wife Christina shared their home with other roommates. On one occasion on June 11, 2002, defendant rented a room at a Motel 6 in Corona where the two engaged in various sex acts, including anal and vaginal intercourse. During another occasion on February 12, 2003, at the same Motel 6, defendant and Jessica had oral sex and vaginal intercourse.

Defendant also began counseling Andrea early in her high school years concerning her relationship with her mother and premarital sex. Their conversations over the phone and in person became more frequent. Defendant regularly met with Andrea and Jessica after services on Tuesday nights. Although defendant taught the students to abstain from premarital sex, he privately told the girls that if he were not married, they could come to him for sex.

On April 26, 2003, a couple of days before defendants birthday, Andrea and Jessica invited defendant over to Andreas house to give him birthday gifts. One of the gifts was a pair of handcuffs engraved with their initials JAJ. As the three played a game of Truth or Dare, they took off some of their clothing and defendant, a former male escort and stripper, demonstrated one of his stripper routines. At one point, Andrea dared defendant to rent a hotel room for the three of them. Defendant rented a room at an Econo Lodge in Riverside. After Andrea and Jessica met defendant at the motel, they took turns performing various sex acts with each other, including oral sex, digital penetration, and vaginal intercourse. Defendant also instructed the girls to touch each others vagina while having sex with him.

The following day at church, defendant told the girls that they should continue having sex with him. Defendant met Andrea later that day and had vaginal intercourse with her in the back seat of her car.

On April 28, 2003, Andrea met with defendant at his house. Inside defendants bedroom, he orally copulated Andrea and then engaged in digital penetration and vaginal intercourse. During another incident at defendants house in May, defendant penetrated Andreas vagina with his finger and then had vaginal intercourse with her on the floor. Also in May, Andrea drove the three of them down an alley, where defendant had vaginal intercourse with Jessica in the backseat of Andreas car.

At a graduation party in June of 2003, Andrea told Cassandra M. (Cassie), who used to attend the New Beginnings youth group, about her sexual relationship with defendant. Cassie was good friends with defendants wife Christina. Andrea provided specific details concerning the sexual encounters, including the occasion at the motel with Jessica. After learning about the relationship, Cassie told her sister, and other members of her family and the church. She also told defendants wife.

When confronted by her father and the pastoral staff at New Beginnings, Andrea denied the relationship; however, she later admitted the relationship to her stepmother, who then took her to the Corona Police Department. During the police interview, Andrea initially mentioned only the April 26, 2003, incident.

Jessicas last sexual encounter with defendant was on June 17, 2003. On the following day, during a meeting with the senior pastor at New Beginnings, Jessica denied having a sexual relationship with defendant. Despite Jessicas denials, Jessicas mother took her to the police station and Jessica eventually disclosed to the police the details of the sexual encounters.

Detective Randy Ryder corroborated that defendant had rented a room at the Econo Lodge on April 26, 2003. He also confirmed that defendant had reserved a room at the Motel 6 in Corona on eight separate occasions, including the two specific dates provided by Jessica.

Defendant denied having sex with the two girls. Defendant explained that he rented the rooms at the Motel 6 either to have sex with his wife or for the homeless to have a place to stay. Defendants wife corroborated defendants story and said that she and defendant often rented motel rooms for privacy because they shared their house with roommates, including Christinas father. As for the room at the Econo Lodge, defendant admitted that he was with Andrea and Jessica and that he rented the room as a joke during a game of Truth or Dare. According to defendant, they never used the room.

DISCUSSION

A. Giving CALJIC No. 2.28 Was Harmless Error.

As part of his motions in limine, the prosecutor informed the trial court that he did not receive a defense witness list with witness statements as to the content of their testimony until five days earlier. Defense counsel responded that all of the witnesses related to an alibi defense and made an offer to discuss the witness list with the prosecutor during court breaks. The prosecutor objected and asked that all discussions be held on the record, based on his previous dealings with the defense attorney. The trial court agreed to put all matters on the record and urged counsel to reach as many agreements as possible.

As court and counsel went through the witness lists, the prosecutor objected to Christinas testimony on the grounds of untimeliness ( 1054.3) and relevancy. Defense counsel stated Christina would provide an alibi defense that defendant had sex in the motel rooms with her and not the minors. The trial court ruled that her testimony would be admitted.

After a lunch break, defense counsel informed the trial court that during the break he met with Gordon Fraser, a witness who would testify that he interviewed defendant for a job at his security company, Alarm King, during the time that Jessica claimed defendant was having sex with her at his home. The prosecutor objected to this belated disclosure of the witness. The trial court ruled that there was no discovery violation as defense counsel informed the trial court as soon as the defense witness was discovered.

The next morning, defense counsel provided the prosecutor with notes of his interviews with Fraser and Daniel Martinez, another employee of Alarm King. Again, the prosecutor objected that the discovery was untimely. The trial court impliedly overruled the prosecutions objection by stating that defense counsel was only required to turn the information over once he received it.

At the conclusion of the prosecutions case, defense counsel made a motion to acquit. ( 1118.1.) The trial court denied the motion.

Defense counsel next moved to admit business planners that defendant had used in 2002 and 2003. Yet again, the prosecutor complained that this evidence was untimely disclosed. He also argued that the planners were hearsay. The trial court ruled that defense counsel could examine defendant outside the presence of the jury to lay a foundation for the business planners. The trial court also stated that the People may be entitled to a late discovery instruction.

Defendant testified that he had possession of his calendars until July 2003. When his prior attorney, Lisa Lewis, requested his planners, defendant turned them over to her. She kept them until defendants trial attorney, Alexander Petale, became his attorney of record. Petale kept them in a large case file until he pulled them out two weeks earlier. At the conclusion of the hearing, the trial court ruled that defendants business planners were admissible.

Court and counsel discussed jury instructions. Both the trial court, on its own motion, and the prosecutor wanted CALJIC No. 2.28 (Failure to Timely Produce Evidence) to be included in the instructions. The prosecutor asked that the jury be informed that defense witnesses, the business planners, and Alarm Kings business records were late discovery. Defense counsel objected and the trial court responded, Surely youre not objecting to [CALJIC] No. 2.28?

The trial court then gave a modified version of CALJIC No. 2.28, as follows:

The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non-complying partys evidence. [] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, Defendant failed to timely disclose the following evidence: the names of certain of the defense witnesses; the business records of Alarm King, and the calendars of the defendant. [] Although the Defendants failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [] The weight and significance of any delayed disclosure are matters for your consideration. However, you should consider whether the untimely disclosed evidence pertains to a fact of importance, something trivial or subject matters already established by other credible evidence.

On appeal, defendant contends the trial court should not have given the instruction because there was no factual basis to support giving the instruction and the instruction violates state and federal law.

We agree with both of defendants contentions. We find there was insufficient evidence for the trial court to have given CALJIC No. 2.28. We also acknowledge that there exists a growing body of cases criticizing the instruction. However, we reject defendants contention that the error is reversible. Under either prejudicial standard of review, we conclude that the error was harmless because the evidence in this case very strongly points towards defendants guilt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [the error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [a more favorable result would not be reasonably probable even had the instruction been given].)

1. Insufficient Evidence to Support the Instruction.

The trial courts revised instruction informed the jury that defendant failed to timely disclose the names of certain defense witnesses, the business records of Alarm King, and the calendars of defendant.

The trial court had never found that defense witnesses Fraser, Martinez, and Christina were belatedly disclosed. The trial court ruled that there was no discovery violation as defense counsel turned over information regarding defense witnesses^[3]as soon as he learned about them. As defense counsel had timely disclosed the witnesses names and other information, it was error for the court to instruct the jury that defendant failed to timely disclose the names of certain defense witnesses.

With respect to Alarm Kings business records, it is unclear from the record if those records were previously provided to the trial court by means of a subpoena duces tecum, filed by defense counsel, or submitted in some other manner.^[4] Again, the trial court had never ruled that there was a belated disclosure of this defense exhibit. Thus, it was error for the trial court to inform the jury that defendant had failed to timely disclose Alarm Kings business records.

Lastly, the record reflects that defense counsel had defendants calendars in his possession for at least one week prior to the trials commencement, if not earlier. Defense counsel had an obligation to turn them over to the prosecution much earlier than at the beginning of defendants case-in-chief. ( 1054.3.) We find the trial court properly included defense counsels belated disclosure of defendants calendars in its jury instruction.

Consequently, we conclude there was insufficient evidence to support the trial courts instruction that defendant belatedly disclosed defense witnesses names and Alarm Kings business records. However, there was sufficient evidence to instruct the jury that defense counsel failed to timely disclose defendants business planners.

2. The Modified Instruction Was Legally Deficient.

Citing People v. Bell (2004) 118 Cal.App.4th 249, People v. Cabral (2004) 121 Cal.App.4th 748, and People v. Saucedo (2004) 121 Cal.App.4th 937, defendant argues that the instruction contains a number of errors, among them: (1) it misleads the jury by stating that defendant, rather than defense counsel, tendered belated discovery, (2) it fails to provide guidance on how that failure should affect their deliberations, (3) it infers a consciousness of guilt on defendants part without his being personally involved in the late disclosure, and (4) it fails to inform the jury that a discovery violation is insufficient on its own to support a guilty verdict.

The People concede that defendant has correctly cited to cases which have criticized the instruction. The People maintain, however, that despite the instructions failings, defendant was not prejudiced by the instruction. We agree.

Section 1054.5, subdivision (b), authorizes the court to advise the jury of any failure or refusal to disclose and of any untimely disclosure. However, the manner of doing so is important.

As both parties correctly note, CALJIC No. 2.28 has been roundly criticized in People v. Lawson (2005) 131 Cal.App.4th 1242, 1246-1249; People v. Bell, supra, 118 Cal.App.4th at pages 255-257, People v. Cabral, supra, 121 Cal.App.4th at pages 751-752, and People v. Saucedo, supra, 121 Cal.App.4th at pages 942-943, because its language improperly encourages speculation and offers insufficient direction. [Citation.] (People v. Lawson, at p. 1248.) Similarly in this instance, the instruction suggested that defendant was responsible for the belated discovery. Clearly it was defense counsel, and not defendant, who failed to provide defendants business planners in a timely fashion.

The instruction failed to inform the jury how to evaluate the significance of this discovery violation. (People v. Bell, supra, 118 Cal.App.4th at p. 257.) As there was no evidence that defendant was personally involved in the late disclosure, the jury was left without any guidance on how to assess the late disclosure. The instruction informed the jurors that the delayed disclosure may have denied the People an opportunity to obtain rebuttal evidence even though there was no evidence that this was true. (People v. Saucedo, supra,121 Cal.App.4th at p. 942.) Defendant used his business planners to refresh his memory regarding where he was located to rebut the girls allegations that he was having sex with them. Using the business calendars to refresh defendants memory does not cause the prosecution to be prejudiced by the late disclosure.

Based on these failures, we add our voice to the growing chorus that CALJIC No. 2.28 is problematic and it most likely is error to give the instruction. However, under either the Chapman or Watson standards of review, defendant has not established prejudice. We conclude the result would have been the same even if the instruction had not been given.

3. The Instruction Did Not Prejudice Defendant.

The evidence of defendants guilt in this case is very strong, if not overwhelming. Jessica testified that she had sexual intercourse with defendant (count 15) on September 11, 2002, and remembered the date because it was the year anniversary of 9-11, the New York City terrorist attacks. She stated that defendant took her to his Corona home on a Wednesday around 1:00 p.m. When she testified two and a half years^[5]later, Jessica correctly remembered that September 11, 2002, fell on a Wednesday.^[6] She also recalled that she left school early because it was a minimum day. A school administrator corroborated that September 11, 2002, was, in fact, a minimum school day where the students were let out early.

Jessica testified that she engaged in sexual intercourse with defendant on February 12, 2003 (count 14). On that date, defendant picked her up in his car after school and together they went to a Motel 6 in Corona. When the investigating detective went to the Corona Motel 6, he asked for a list of dates defendant was registered as a guest. February 12, 2003, was listed as one of the dates defendant was a registered guest. It was Jessica who supplied the detective with the date of her Motel 6 visit, rather than the detective asking Jessica if she visited the motel on February 12.

The same holds true for count 10. Jessica testified that she had sexual intercourse with defendant on June 11, 2003, the day before school let out for the year. Jessica again correctly identified that June 11, 2003, fell on a Wednesday.^[7] Jessica recalled that they went to the Corona Motel 6. The June 11, 2003, visit to the motel was independently corroborated by the hotels guest folio documenting that defendant was a registered guest on that date.

Jessica testified that the last tryst she had with defendant occurred on June 17, 2003 (count 9). Defendant picked her up at her home, got lunch at a drive-thru restaurant, and then drove to his home. The two engaged in sexual intercourse. They remained in the home for approximately 30 to 45 minutes and left around 2:45 p.m. in defendants white truck.

A school administrator testified he saw Jessica getting out of a white pickup truck that was driven by defendant when she returned to school at the end of a lunch period. Although the school administrator did not remember the specific date, he remembered that he was in charge of the schools graduation and he had just returned from picking out a flower arrangement for the graduation when he observed defendant and Jessica together.

Counts 11, 12, and 13 (Jessica) and counts 6, 7, and 8 (Andrea) involve defendant taking the two girls to an Econo Lodge in Riverside on April 26, 2003.

It was a few days before defendants birthday and defendant was leading a mens retreat. Defendants retreat duties included setting up and tearing down equipment. Pastor Del Campo, defendants employer at the time, testified that defendant was not present for the equipment teardown that occurred between 3:15 and 3:30 p.m.

That same day, defendant and Jessica spoke on the phone. Defendant was returning home from a mens retreat. Jessica told him that Andreas mother was out of town and that she and Andrea were alone at Andreas house. Defendant came over to Andreas house. When defendant arrived the girls presented him with a pair of handcuffs, a birthday card, and a deck of cards as birthday gifts.

After a while, the three began to play a game of Truth or Dare, which resulted in all three disrobing into varying stages of undress. Andrea dared defendant to get them a motel room. Defendant took Andrea up on her challenge: the three of them got dressed and began driving around Corona looking for a motel room. Defendant was in his car and the two girls were in Andreas car. Defendant stopped at three or four motels but they were either occupied or too expensive, so they drove to Riverside and found a room at an Econo Lodge. Defendant booked room No. 211 and paid for it by charging his credit card at 6:46 p.m. The hotel receipt reflects that defendant drove a silver Honda.

Once inside the motel room, they continued the Truth or Dare game where they had left off. The three of them removed all their clothing and piled onto the bed completely naked. Defendant inserted his finger into their vaginas and engaged in vaginal intercourse and oral copulation with both girls.

When separately interviewed by police, each girl corroborated details of the sexual liaison provided by the other girl. When the investigating detective obtained the Econo Lodge registration receipt, the date on the motels receipt and the room number corroborated the information given by the girls. Even defendant admitted that he participated in the Truth or Dare game and as a result booked the hotel room for the two girls.^[8] However, defendant denied that he engaged in sexual activity with them.

Andrea testified that she had sexual intercourse with defendant on April 27, 2003, in the back of her car. Andrea said that defendant had ejaculated in a condom. Andreas story that defendant had used a condom, which prevented any semen from spilling onto the cars back seat, is corroborated by the inability of the forensic technician to find any of defendants DNA on the back seat.

As part of an alibi defense, defendants wife Christina testified that she and her husband had rented a motel room in Riverside for marital privacy away from household roommates. Defendants alibi fell part, however, when Christina testified that they stayed at the Motel 6 in Riverside, and not the Econo Lodge in Riverside. She also testified that she had sex with her husband at the Corona Motel 6 but could not remember if it was on Valentines Day or on their February 26 anniversary date. Christina did not testify that she was at the Corona Motel 6 on February 12, the date reflected in the motels guest registration, which was the date defendant had sex with Jessica.

Another defense alibi theory was that defendant booked rooms at the Corona Motel 6 on behalf of homeless people as part of his ministerial duties for the church. This defense claim was rebutted by Pastor Del Campo who verified that the church did have a benevolence program that would occasionally set homeless people up in motel rooms; however, the use of petty cash had to be cleared by Pastor Del Campo. Since payments for a hotel exceeded the $20 or $30 denominations used for petty cash transactions, the normal procedure was that hotels were paid for with a check or a credit card, which were given directly to the hotel. Pastor Del Campo testified he never authorized the use of church funds by defendant for homeless men.

Defendant and Christina also claimed the girls had a motive to lie and make up the sexual allegations because defendant told them they were not invited to come along to set up a new church with him. However, when Jessica and Andrea were first confronted by Pastor Del Campo and police regarding the allegations, both denied that anything untoward had occurred, or they minimized the number of incidents because they did not want defendant to get into trouble and sought to protect him.

Finally, defendant made many admissions that he improperly engaged in sex with the girls. In a recorded pretext call set up by police, Andrea asked defendant:

[Andrea]: Well, what do you think theyre gonna do to you if I do come out and say what happened?

[Defendant:] Well, if you have to say whatever you have [to] say, you know, um, Ill be away for the rest of my life.

[Andrea]: So you think theyll put you in jail?

[Defendant:] Theres no doubt. Theres no doubt. You know . . . .

[Andrea]: . . . are you still, ah, are you still gonna deny it and everything?

[Defendant:] Yeah [be]cause I didnt do anything. I mean, theyre saying like 16 years someone told me, you know, that Ill have 16 years in prison. Its just like wow, you know, and I know I crossed the boundaries with certain things I said and things I . . . .

[Andrea]: [W]hat you said?

[Defendant:] And things that happened but I just, its just shocking to me. . . .

As the prosecutor cogently noted in his closing argument, why would defendant talk about being put in prison for 16 years if he only crossed a little boundary by renting a hotel room? Clearly, such a statement by defendant is an admission of guilt. Additionally, after the Truth or Dare game at the Econo Lodge motel, defendant told the girls, well have to keep doing that, I had a really good time last night. He told the girls that [they] could never say anything because if it came out, he would lose everything and go to jail. Lastly, defendant warned Jessica that if she got pregnant, her baby wouldnt have a father because hed be in jail.

Based on defendants admissions, the large amount of circumstantial evidence admitted at trial, and the instructions given as a whole, we conclude that under any standard of review, it is not reasonably likely that the jury would have reached a verdict more favorable to defendant.

B.Failure to Give a Hearsay Limiting Instruction Was Harmless Error

In a pretrial motion in limine, the prosecutor asked the trial court to admit hearsay statements made by Andrea which Cassie overheard at a graduation party. The prosecutor argued that the out-of-court statements were not hearsay because they were not for the truth of the matter asserted. Rather, Andreas words were nonhearsay statements that were admissible to explain their effect on Cassie: that when she heard Andreas statements, the words caused her to report the unlawful sex acts to church authorities. Defense counsel objected to Cassies testimony on hearsay grounds. The trial court overruled the objection, stating it would allow the testimony with a limiting instruction (CALJIC No. 2.09Evidence Limited as to Purpose).

Cassie testified that during a graduation party in June 2003, she overheard Andrea tell another friend that she was sleeping with someone. Cassie asked Andrea who she was sleeping with. Andrea said she couldnt say because he was married and Cassie knew him. Cassie became concerned, so she started to guess who it was. When Cassie asked if it was defendant, Andrea smiled and said, Yes, it is. Cassie got angry and told Andrea it was wrong. Andrea revealed to Cassie that she engaged in oral and vaginal sex with defendant on numerous occasions, and that one instance occurred when defendant left a mens retreat early and met her and Jessica at a motel where defendant had sex with both her and Jessica.

Defense counsel did not request a limiting instruction at the time of Cassies testimony. CALJIC No. 2.09, a general limiting instruction, was given at the end of trial.

Defendant contends that CALJIC No. 2.09 failed to restrict Cassies testimony to the nonhearsay purpose of explaining Cassies conduct. Instead, Andreas statements were admitted for the truth of the matter asserted: that Andrea had sexual relations with defendant. Defendant also argues that giving CALJIC No. 2.13 was error because it stated that Andreas statements to Cassie were prior consistent statements. When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly. (Evid. Code,  355, italics added.) Although a court should give a limiting instruction upon request, it has no sua sponte duty to do so. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Thus, defense counsels failure to request the instruction does not constitute error on the trial courts part.

Even if CALJIC No. 2.09 had been given, the result would not have been different. The standard of review applied to the failure to give a limiting instruction is the Watson test of whether it is reasonably probable a more favorable outcome to defendant would have resulted absent the error. (People v. Cavitt (2004) 33 Cal.4th 187, 209.) In this instance, we conclude that the result would have been the same. Defendant would still have been convicted, based upon the overwhelming evidence discussed in the previous section.

C. The Prosecutors Actions Did Not Rise to the Level of Misconduct.

Defendant claims the prosecutor resorted to misconduct in three separate instances: (1) when cross-examining Christina, (2) when cross-examining defendant, and (3) when making his closing argument.

We note at the outset that in each of the complained instances, defense counsel did not lodge an objection to the prosecutors action. A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. [Citation.] (People v. Lopez (2008) 42 Cal.4th 960, 966; see also Evid. Code, 353, subd. (a).) Thus, defendants claims are forfeited on appeal.

Even if the issues had been preserved for review on appeal, we would conclude that defendants claims are without merit. We analyze each contention in turn.

1. Cross-examination of Christina.

The prosecutor cross-examined Christina regarding defendants disclosure that the girls made sexual allegations against him:

[Prosecutor:] As a result of the disclosure about this dare, did that cause further problems in your marriage?

[Christina:] I would say no.

[Prosecutor:] At that point in time were you having any problems in your marriage? [] . . . []

[Christina:] Yes.

[Prosecutor:] Would one of those problems have been his infidelity?

[Christina:] No.

[Prosecutor:] He never discussed with you him sleeping with other women?

[Christina:] No.

[Prosecutor:] How about him sleeping with little girls?

[Christina:] No.

[Prosecutor:] How about him kissing another person?

[Christina:] No.

[Prosecutor:] He never told you that he kissed a girl in the church in his office?

[Christina:] No.

[Prosecutor:] Had he said things like that, would you have remembered them?

[Christina:] Yes.

Later on, the prosecutor queried Christina on her opinion that the girls were motivated to fabricate false allegations against her husband. She stated that she and defendant were starting up a new church in Norco that was separate from the New Beginnings Church. Andrea and Jessica had wanted to come along and participate in the new church. Defendant informed the girls they were not invited to come to the new church. Christina said Andrea and Jessica were upset by this news and invented the allegations at issue. Christina claimed that the girls were very jealous and that people could be vindictive. Christina stated her impression that Jessica routinely treated other people badly and did not get along with other girls. She also believed that Andrea routinely made things up.

Defendant maintains that the prosecutors questions regarding defendants infidelity were irrelevant assertions that were never proven by sworn testimony. He asserts that the questions regarding the motives of the girls to lie were speculative, irrelevant, argumentative, and not based on Christinas personal knowledge. We disagree.

The prosecutor asked Christina general lines of questioning regarding whether she observed any sexual misconduct on the part of defendant or the girls. Christina denied all claims that her husband acted inappropriately. She also discussed how her husbands starting of a new church and separating from the old church caused a great deal of political upheaval. When defendant tried to mitigate the political fallout by barring the girls from leaving the old church to go to his new church, the girls became upset.

The prosecutors questions concerning whether Christina made any observations regarding defendants sexual conduct (or lack thereof) with other women, probed and tested the defense theory that it was defendant and Christina who used the motels and not defendant with the underage girls. The prosecutors purpose in asking Christina whether defendant had been unfaithful with other women was to see if she would testify consistently or inconsistently with the prior statements she gave to the district attorneys investigator, Mary Ortiz.

Christina told Ortiz that she often went to hotels with defendant because she was embarrassed to have sexual relations with her husband in the same house where her father was living. Christina told Ortiz that one of the hotels she went to with defendant was the Motel 6 in Riverside. Christina consistently testified she went to the Motel 6 in Riverside and the Motel 6 in Corona in February 2003 for special occasions. However, Christinas statements did nothing to support the defenses alibi theory. Defendant admitted that he rented the Econo Lodge in Riverside for the girls, and not the Motel 6 in Riverside. The guest registration receipt for the February 2003 visit to the Corona Motel 6 matched the exact date given by Jessica and not the vague Valentines Day or anniversary dates given by Christina. Prior consistent and inconsistent statements may be considered to prove or disprove the truthfulness of a witness. (Evid. Code, 780, subds. (g) & (h).)

The prosecutors questions regarding the establishment of a new church were used to educe evidence to assess credibility. Defendant claimed that Jessica and Andrea fabricated the sexual allegations because they wanted a part in defendants new church. The prosecutors rebuttal elicited evidence that showed Jessica and Andrea did not fabricate the sexual offenses because they initially shielded defendant from punishment by secular and religious authorities. Christinas claim that the girls made up the allegations because they were jealous demonstrated her bias in favor of the defense and against the prosecution. Hence, the prosecutor was entitled to ask Christina about her belief that the girls had a motive to lie in order to demonstrate her bias, interest, and motive. (Evid. Code, 780, subd. (f).)

Finally, defendant argues that the prosecutor repeatedly asked questions which called for answers disclosing information within the marital communication privilege or the attorney-client privilege. The prosecutor did not violate the marital communication privilege because defendant broke the news to Christina about the girls sexual allegations in front of his mother, sister, and brother-in-law. The marital privilege is waived if one of the spouses discloses, without coercion, any significant part of the communication or has consented to the disclosure. (Evid. Code, 912, subd. (a).)

2. Cross-examination of Defendant.

Defendant points to three separate parts in his cross-examination to support his claims that the prosecutor violated his attorney-client privilege, the questions were irrelevant, and they improperly asked about uncharged acts involving pornography.

[Prosecutor:] And isnt it correct that prior to the assignment to this trial department, you had never provided this information [Alarm King employment application] to your attorney?

[Defendant:] Yes.

[Prosecutor:] Do you recall the date that you provided it to your attorney?

[Defendant:] I never provided the application for him.

[Prosecutor:] Never provided it?

[Defendant:] Huh-uh.

[Prosecutor:] Never gave him the name, Gordon Fraser. Correct?

[Defendant:] No, I didnt.

[Prosecutor:] Never gave him the name of Matt Logan. Correct?

[Defendant:] Not correct.

The prosecutors questioning continued:

[Prosecutor:] And back on June 26, 2003, you hadnt been completely honest with your wife about what had happened, had you? [] . . . []

[Defendant:] No, I was honest then.

[Prosecutor:] On June 18th, 2003, were you completely honest with your wife when you told her about the accusations?

[Defendant:] That was the date, yes. That was the date I told her.

[Prosecutor:] And you were honest then too?

[Defendant:] From what I know, yes, at that time.

After eliciting testimony that Andrea and Jessica had told defendant they were watching a pornographic film, the prosecutor asked the following:

[Prosecutor:] You yourself ever have a problem with porn? [] . . . []

[Defendant:] Yes.

[Prosecutor:] Would you consider yourself addicted to porn?

[Defendant:] No.

[Prosecutor:] Would you consider that your inclination towards porn caused stress on your marriage?

[Defendant:] No.

[Prosecutor:] Was part of the reason for your termination at New Beginnings Church connected with porn at all?

[Defendant:] Not at all.

We agree with defendants assertion that the prosecutors questions were irrelevant. Whether defendant viewed pornography or whether pornography had caused stress in his marriage to Christina was irrelevant to the issue of whether defendant had engaged in sexual activity with Jessica and Andrea. We also find the prosecutor improperly sought to elicit inadmissible character evidence. Evidence Code section 1101, subdivision (a), prohibits evidence of a persons character when offered to prove his or her conduct on a specified occasion.

A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.] (People v. Hoyos (2007) 41 Cal.4th 872, 923.) While improper, the prosecutors inquiry into defendants pornography practices did not so infect his trial that he was denied due process. The query was brief, comprising only three questions. Out of a 1,000-page record, the minute diversion was less than one page in length. Nor did the prosecutor argue the matter in his closing argument. As the prosecutors cross-examination on pornography was so short, and he made no reference to it in his closing argument, we find that it could not have had any effect on the jury.

Finally, defendant waived the attorney-client privilege when he failed to assert itat trial he made no specific objection to this line of questioning. His argument is waived due to his failure to make a timely and specific objection. (Evid. Code, 353, 912 [attorney-client privilege waived if holder fails to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege].) Additionally, his voluntary responses to the questions on cross-examination waived any future claim of privilege.

3. Prosecutions Closing Argument.

Defendant claims that the prosecutor committed misconduct when he misstated the facts in his closing argument:

What did the defendant say when he got up on the stand? Went directly to the Econo Lodge in Riverside. Does that make sense to a man who, according to him and his knowledge of the motels in the area in Corona, because he frequents them with his wife so often, he chooses to go to Riverside and pay more than double, more than double what he pays for a hotel room with his wife? Or is it like the girls said, they did go to the Motel 6 on Lincoln in Riverside and it was full, no vacancies? At least thats what Joe told them. And they tried another motel and finally ended up in Riverside.

Defendant argues that the prosecutor misstated the evidence because defendant never claimed to have driven directly from Andreas house to the Riverside Econo Lodge. He asserts that the prosecutors argument excoriate[d] [defendant] with an assertion he never made.

As we stated earlier, failure to object and request an admonition waives the matter on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 959.) Even if the matter had been preserved on appeal, we conclude that the prosecutions argument as a whole was accurate, and that an isolated statement did not render the remainder of his argument prejudicially misleading. Defendant testified he started driving to the Corona Motel 6 but decided not to go there and took the freeway towards Riverside. He admitted he lied to the girls when he told them he stopped at the Corona Motel 6 but that it did not have any vacancies. After stopping at two other motels, defendant obtained a room at the Riverside Econo Lodge.

D. The Trial Court Properly Overruled Defense Evidentiary Objections.

As part of defense attempts to prove defendant did not engage in sexual activity with the girls, defense counsel attacked the girls credibility by proving that they never saw defendants penis. (Evid. Code, 780, subd. (c).)^[9] When defense counsel cross-examined Jessica and Andrea, they testified that defendants penis was circumcised. Defendant offered into evidence pictures of his penis showing that he was not circumcised.

In order to authenticate the photographs of defendants penis, defense counsel called defendants mother to the stand to lay a foundation that she recognized her sons uncircumcised penis in the photograph. During his cross-examination of defendant, the prosecutor asked defendant several questions regarding those photos:

[Prosecutor:] Prior to the taking of the photographs, did you have to touch yourself?

[Defense Counsel:] Objection. May we approach, your Honor?

[The Court:] You may.

[Discussion held at sidebar and the court directed the question be rephrased.]

[Prosecutor:] Mr. Arredondo, two nights ago you and Robin^[[10]] were in a room together to take these photos. Correct?

[Defendant:] Yes. Thats my bedroom.

[Prosecutor:] And with regard to these photos, did you or anyone else in the room place your penis in any sort of condition prior to the taking of the photograph?

[Defendant:] Placed it in something?

[Prosecutor:] No. Did you play with it?

[Defendant:] No, I didnt.

[Prosecutor:] Did you just pull your pants down?

[Defendant:] Correct.

[Prosecutor:] Were you sexually excited at all by pulling your pants down in front of Robin at that time?

[Defense Counsel]: Objection. Relevance.

[Court:] Its relevant.

[Defendant:] As you can see, Im not.

[Prosecutor:] Is that a No, sir?

[Defendant:] Yes.

[Prosecutor:] All right. Are you telling us that your penis looks different when you are excited?

[Defendant:] No. It looks exactly the same.

[Prosecutor:] Oh, I must have misunderstood your earlier comment, then.

[Defendant:] The foreskin hangs over whether its erect or not erect. [] . . . []

[Prosecutor:] With regard to defense Exhibit number N, is that the state of your penis flaccid?

[Defendant:] Not totally.

[Prosecutor:] Okay. Are you taking back the earlier statement that you were not sexually excited by having Robin in the room?

[Defendant:] No, Im not.

[Prosecutor:] So Robin is not someone that sexually excites you. Is that what youre telling us?

[Defendant:] No, Im not telling you that.

[Prosecutor:] Robin is somebody that sexually excites you?

[Defense Counsel]: Objection. Relevance. [] . . . []

[Court]: Overruled.

[Defendant:] Theres never been a time where she has excited me. I just needed someone to Polaroid a picture.

[Prosecutor:] That wasnt my question, sir. Does Robin sexually excite you?

[Defendant:] No.

[Prosecutor:] There is no sexual relationship between you and Robin?

[Defendant:] Not at this time.

[Prosecutor:] Is there a time that you would see yourself in a sexual relationship with Robin?

[Defendant:] I dont know.

[Prosecutor:] Is Robin your girlfriend?

[Defendant:] I wouldnt call her that yet, a girlfriend.

[Prosecutor:] You wouldnt call her that yet?

[Defendant:] We just hang out.

Defendant contends that the trial court erred in overruling defense counsels relevancy objections. The questions were irrelevant in that they did not help to establish a foundation for the photographs, and questions regarding the photographers identity were meaningless so long as the witness could describe when the pictures were taken and that they were a fair representation of what was depicted. If the issue of whether Robin aroused him was relevant to the condition of his penis, the issue should have been limited to the time the photographs were taken. He complains that the questions regarding whether Robin sexually aroused him introduced highly prejudicial testimony. We disagreewe find that the line of questioning was decidedly relevant.^[11]

Proffered evidence is admissible only if the court finds that the evidence of the existence of a preliminary fact is sufficient to sustain a finding by the trier of fact that the preliminary fact exists. (Evid. Code, 400, 401 & 403, subd. (a).) A writing, which includes within its definition a photograph, may not be received into evidence until it is authenticated. (Evid. Code, 250, 1401.) A writing offered in evidence is similar to a material object, in that the party who offers such an item in evidence must establish as a preliminary fact that it is in some way relevant to an issue in the case. The preliminary fact of the relevancy of a writing generally requires some proof that the writing is genuine or authentic. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2007) Meaning of and Need for Authentication of Writing, 30.9, p. 661.)

To authenticate a photograph, a foundation must be laid by showing that the picture is a faithful representation of the objects or persons depicted. The showing must be made by a competent witness who can testify to personal knowledge of the correctness of the representation. (2 Witkin, Cal. Evidence (4th ed. 2000) Foundation, 16, p. 25.)

The prosecutors questions regarding the condition of defendants penis depicted in the photograph went to the significant issue of whether the girls lied when they testified defendants erect penis was circumcised. The prosecutors queries to defendant regarding the extendibility, flaccidity, rectilinearity, and rigidity of his penis, and whether the condition of defendants penis in the photograph was caused by another persons presence is germane to the preliminary fact: whether the picture is a faithful representation of the object depicted.

Defense counsel had extensively cross-examined Andrea regarding whether defendant was circumcised. Defendant called the investigating detective as a witness to testify that Andrea told him defendant was circumcised. Defense counsel argued in closing that Andreas prior statement that defendant was circumcised was a basis to reject the whole of her testimony.

We find no error in the trial courts evidentiary rulings.

E. Defendant Was Properly Sentenced to the Upper Term on Count 9.

In sentencing defendant, the trial court selected count 9 as the principal count, which charged defendant with having sexual intercourse with Jessica on September 11, 2002. The trial court imposed the upper term of four years on that count because it found the following aggravating factors: that defendant abused a position of trust, used a great deal of planning and sophistication to carry out the sexual acts upon the young girls, and inflicted long-lasting damage to the victims. It also imposed consecutive terms of eight months on each of the remaining counts.

Defendant argues it was unconstitutional to impose the upper term on count 9 and to run each term consecutively because the jury did not find any of the aggravating factors beyond a reasonable doubt. He also submits that the California Supreme Court erred when it ruled in People v. Black (2007) 41 Cal.4th 799, 813 (Black) that a single aggravating factor renders a defendant eligible for the upper term, rather than weighing the aggravating versus mitigating factors. Finally, he asserts that imposing the upper term violated the ex post facto clause because the upper term was imposed before the Legislature amended section 1170, subdivisions (a)(3) and (b) to make the three Determinate Sentencing Law (DSL) sentencing choices a discretionary range, rather than having the midterm as the presumptive term.

We reject out of hand several of defendants contentions. A single aggravating term has been determined to be legally sufficient to make a defendant eligible for the upper term. (Black, supra,41 Cal.4th at p. 813.) Additionally, the upper term can be imposed retroactively prior to the amendment of section 1170. (People v. Sandoval (2007) 41 Cal.4th 825, 854 (Sandoval).) Finally, imposing consecutive sentences does not violate a defendants Sixth Amendment right to a jury trial as elucidated in Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny of cases. (Black, at p. 821.) As we are duty-bound to follow the California Supreme Courts precedents in Black and Sandoval, we find that the retroactive imposition of the upper term is not an ex post facto violation, a single aggravating factor is sufficient to impose the upper term, and a trial judge may impose consecutive terms. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendants claim that he was entitled to have the jury, rather than the trial judge, find the aggravating factors to be true, is meritorious. The Sixth Amendment of the United States Constitution compels any fact which exposes a defendant to a greater potential sentence be found by a jurynot a judgeand established beyond a reasonable doubt. (Sandoval, supra, 41 Cal.4th at p. 835, citing Cunningham, supra, 127 S.Ct. at pp. 863-864.) Under Cunningham, the midterm was the statutory maximum that a judge may impose based on the facts found in the jurys verdict alone, without a judge finding any additional aggravating facts. (Cunningham, at pp. 870-871.) The failure to have the jury determine all aggravating factors which increase a defendants penalty violates the Sixth Amendment.

However, we review any failure to submit a sentencing factor to the jury for harmless error. (Washington v. Recuenco (2006) 548 U.S. 212, 221; Sandoval, supra,41 Cal.4th at p. 838.) Applying the Chapman standard of review,^[12]we find that the trial courts error in finding the aggravating factors true was harmless beyond a reasonable doubt.&l