P. v. Duran













Filed 11/9/10 P. v. Duran CA2/2








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. TOMAS HERRERA DURAN, Defendant and Appellant.

B217474 (Los Angeles County Super. Ct. No. NA081124)

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Modified, reversed in part, and affirmed in part.

Seymour I. Amster for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

___________________

Tomas Herrera Duran appeals from the judgment entered upon his convictions by jury of three counts of kidnapping to commit another crime (rape) (Pen. Code, § 209, subd. (b)(1), counts 1, 3 & 5),^[1] one count of sexual assault with intent to commit a felony (§ 220, subd. (a), count 2), two counts of forcible rape (§ 261, subd. (a)(2), counts 4 & 6), and three counts of aggravated sexual assault of a child (§ 269, subd. (a)(5), counts 7 & 8), § 269, subd. (a)(4), count 9), counts 7 and 8 based on sexual penetration (§289, subd. (a)) and count 9 based on oral copulation (§ 288a, subd. (c)(2)).^[2] The jury found to be true the allegations, in connection with counts 4, 6 and 7 through 9, that the sex offenses were committed against more than one victim (§ 667.61, subds. (a), (b), & (e)(5)), and, in connection with counts 4 and 5, that appellant kidnapped the victim (§ 667.61, subds. (a), (b) & (e)(1)). The trial court sentenced appellant to an aggregate state prison term of 169 years to life. Appellant contends that (1) the aggravated assault convictions in counts 7 and 8 are barred by the statute of limitations, (2) the trial court abused its discretion by denying his motion to sever, thereby violating his due process rights (3) prosecutorial misconduct mandates reversal of the convictions, (4) the cumulative effect of the errors violated appellant’s due process rights and mandate reversal, and (5) denial of appellant’s motion for mistrial was an abuse of discretion.
We modify, reverse in part, and affirm in part.
FACTUAL BACKGROUND
The prosecution’s evidence
Jessica S. (counts 7 & 8)
Jessica S., appellant’s niece, was born in December 1985. Appellant was born in January 1977. When Jessica was three years old, appellant began touching her sexually when he came to visit. Jessica recalled one incident when she was playing a video game in bed. Appellant joined her, lifted her dress and touched her vagina.
In 1995 or 1996, when Jessica was in fourth or fifth grade and was nine or 10 years old, after appellant and his mother (Jessica’s grandmother) moved into Jessica’s house, appellant’s sexual abuse became more frequent. Jessica clearly recalled one such incident when she was napping in bed after school. She awoke and saw appellant in bed with her, her pants unzipped, and appellant’s fingers inside her vagina. She tried to get up, but he pushed her down. She felt pain and unsuccessfully tried to remove his hand from her vagina. Finally, she was able to push his hand away as she rolled over, zipped her pants and left the room.
While Jessica could not recall other specific times that appellant inserted his finger in her vagina, he did so over the two-year period that he resided with her more than four times. He also exposed his penis to her twice.
When Jessica was 11 and appellant was still living with her family, she again was napping after school. She awoke to find him sitting on her bed, with his hand on her breast and a cloth over her face. Jessica was afraid of appellant because he was much bigger than she, was her uncle, and was a security guard.
When Jessica was in ninth or tenth grade, she spoke with Nancy Catellano, a school counselor because she feared appellant would sexually abuse her younger sister. Jessica had not mentioned the abuse to her mother, but had only talked to her cousin, Erica, about it. She contacted Detective Norma Carrillo after seeing appellant’s picture in the paper because he was arrested for sexual misconduct.
Erica V. (count 9)
Erica V., appellant’s niece, was born in September 1984. She described an incident that occurred in approximately 1991, when she was eight years old and appellant was babysitting for her and her sisters. The girls were watching television with a blanket over them. Appellant joined them, fondled Erica’s vaginal area and then penetrated her vagina “a little bit” with his finger. Erica’s younger sister told their mother about the incident, but nothing came of it.
Erica recalled an incident when she was 13 years old. She was staying at Jessica’s house, when appellant was living in the back house. He told her to come to his house to watch a movie. When she got there, he was watching a pornographic movie and told her to pay attention. He sat next to her and touched her vaginal area over her clothes. She felt “frozen” and scared. Appellant sat up and faced her, kneeling, while she was on the couch. Erica’s clothes were removed, and appellant licked her vaginal area, his hands at the sides of her legs to prevent her from getting up. He exposed his penis and told her to lick it. She said, “No.” He then pressed his penis against the crack of her vagina, but did not insert it all of the way. She felt pressure and moved away. Appellant then returned to licking her vaginal area and reminded her not to say anything. When the movie ended, Erica returned to the front house.
Erica recalled another incident when she was 13 years old. Appellant came into the room and said that her mother had not taught her how to properly clean herself. He talked to her about sex. She asked a question and then he kissed her, inserting his tongue in her mouth. He exposed himself and masturbated until he climaxed, standing in front of her.
Shortly after Erica turned 14 years old, she was living in Texas with her aunt and uncle. She was in her aunt’s bedroom. Appellant, who was visiting, entered the room and remarked on how Erica had grown. He added that her breasts were growing, as he touched her breast outside of her blouse.
In 1995 or 1996, Erica learned from Jessica that appellant had also abused her. In February 2009, Erica called Detective Carrillo because she saw in the newspaper that appellant might have committed more molestations.
Thao H. aka Kiki H. (counts 3 & 4)
At approximately 3:30 a.m., on February 13, 2008, 20-year-old Kiki H. was walking on Clark Street, heading towards Artesia Boulevard, in the City of Bellflower, when a brown, older model GMC or Chevrolet van pulled up, and appellant asked if she wanted a ride. When she said “no,” he persisted, and Kiki kept walking. The van followed her, and she became frightened and walked faster. As she did, the van stopped next to her, with the engine running. Appellant got out, and Kiki ran. Appellant caught and grabbed her. She fought him and fell down, so he dragged her by the ankles into the van. Kiki cried and asked appellant to let her go. When she kept reaching for her purse, appellant hit her in the back of her head. He placed a sun visor over the dashboard to cover the windshield and took off his and Kiki’s clothes. He fondled her breasts, got on top of her and inserted his penis in her vagina and ejaculated, despite her crying requests that he stop.
When appellant was finished, he drove away. After a couple of hundred feet, Kiki opened the door and jumped out while the car was still running, leaving her cell phone. She ran to a friend’s house and telephoned police.
Natalie S. (counts 1 &2)
At approximately 10:50 p.m., on June 6, 2008, 18-year-old Natalie S. was walking on Paramount Boulevard near Artesia Boulevard, looking for a bus stop to catch a bus home. A dark-colored van pulled next to her, and appellant kept asking if she would like a ride, which she kept refusing. She kept walking, as he drove slowly next to her. She eventually accepted his offer. Appellant drove a few blocks and said he needed gas. He stopped at a gas station, Natalie remaining in the van.
After appellant began driving again, Natalie saw the bus she needed and told him. He pulled into a dark side street, and as she tried to get out of the car, he grabbed her, held her hands down and tried to take her pants off. She struggled, but he got on top of her. Natalie tried to get out of the door and to open her purse which had Mace in it, but appellant held her down, pulled off her pants, and placed a sun visor over the windshield. Natalie struggled the whole time, telling appellant to stop. He told her to “shut up” and pushed her into the middle row of seats, hitting her in the face and causing her nose to bleed. He removed his pants, got on top of Natalie, put a hand over her mouth, and inserted his penis in her vagina area, though he never actually penetrated her, and ejaculated on her leg. He grabbed a towel, wiped himself and threw it at her. Natalie wiped herself with the towel, collected her personal items and left the car.
Once outside of the van, Natalie recorded the van’s license plate number in her cell phone. Upset and crying, she ran to the nearest store and telephoned 911. She gave the detective the license plate number.
Maria M. (counts 5 & 6)
Near 5:00 a.m., on December 17, 2008, 35-year-old Maria M. was walking on Artesia Boulevard near Dumont Avenue, in Cerritos, when she observed a dark-colored Chevy Astro van driving slowly next to her. Appellant, the driver, repeatedly asked if she wanted a ride. She continued to say, “No” and became afraid. Appellant drove ahead, made a U-turn and stopped the van. He came out of the van, ran toward Maria and forcibly dragged her to the van. He banged her against the van and pulled her inside. She was crying and told him to “let [her] go.” Appellant pushed Maria into the middle row of seats in the van, as she pleaded for him not to do anything to her. But he drove a few blocks to a more secluded area, placed a sun shield over the front window and pulled Maria’s pants down. She said she was having her period, and he responded that her period was almost finished. Despite her pleas, he penetrated her vagina with his penis, ejaculated and got dressed.
Appellant drove away. Maria asked him to let her go and said she would not say anything. Appellant finally stopped the van and let her out. She later called the police.
The investigation
Norma Carrillo, Long Beach Police Detective in the sex crimes detail, investigated the sexual assault of Natalie. Detective Carrillo used the C.L.E.T.S. system to run the license plate number Natalie had given and learned that appellant was the registered owner of the vehicle, and lived on Artesia Boulevard in Bellflower.
On February 12, 2009, Detective Carrillo went to the address and saw the van. She prepared a search warrant for the vehicle and residence and requested an oral swab from appellant, who was arrested. Officers recovered a cell phone from his pocket. An oral swab was taken. Detective Carrillo noted that two of the incidents occurred within a mile of appellant’s residence and the third, within two miles.
The parties stipulated that a criminalist from the Los Angeles County Sheriff’s Department analyzed the oral swab taken from appellant and the sexual assault kits that had been taken from Natalie, Maria and Kiki. The criminalist concluded that DNA in sperm and nonsperm material found in the samples was consistent with appellant’s DNA. The probability that the DNA was from someone other than appellant was one in 67 quintillion.
The defense’s evidence
Christine Labesh (Labesh), appellant’s older sister, testified that she had a close relationship with her nieces, Jessica and Erica. She had seen appellant with each of them and never saw anything unusual in their behavior. Neither Jessica nor Erica ever complained to her about inappropriate behavior by appellant.
Labesh noted that there was animosity among her family members over money, as a large amount of money was left by her father to appellant and her parents’ estate plan provided for all the money to go to him when his mother died. She felt that estrangements in her family were due to her parents’ favoritism toward appellant.
Appellant testified on his own behalf. He denied ever inappropriately touching Jessica or Erica or showing Erica a pornographic movie. He admitted picking up Kiki, Natalie and Maria, getting them into his van and having intercourse with them. He claimed, however, that he engaged in consensual intercourse with each of them and denied using force.
Rebuttal evidence
After appellant’s arrest, Detective Carrillo asked him who, except his wife, ordinarily drove his van. Appellant said that he was the only person. She asked him whether he ever met or picked up women in the area of Artesia and Paramount. He said that he did not and that he said that he did not offer rides to anyone.
DISCUSSION
I. Statute of limitations
A. Background
The information alleges that the charge of aggravated sexual assault on Jessica in count 7 occurred between January 1, 1995, and June 30, 1996, and, in count 8 occurred between July 1, 1996, and December 31, 1997. The guilty verdict forms reflect that the jury found that the offense in count 7 occurred between January 2, 1995, and June 30, 1996, and the offense in count 8 occurred between July 1, 1996, and December 31, 1997. Jessica testified that the charged offenses against her occurred in 1995 and 1996, when she was nine or 10 years old. She spoke to her school counselor about appellant’s conduct in 2001, when she was in ninth or tenth grade.
The aggravated sexual assault on Erica in count 9 occurred in or about 1997. Appellant was almost nine years older than Jessica and more than seven years older than Erica.
B. Contentions
Appellant contends that his convictions of aggravated sexual assault of Jessica in counts 7 and 8 are barred by the statute of limitations. Before deciding this issue, we must first determine whether appellant was properly convicted of those offenses, or whether those convictions (as well as his conviction of the same offense against Erica) violated the proscription against ex post facto laws.^[3]
C. Ex post facto prohibition
At the time the charged offenses were committed against Jessica and Erica, section 269, subdivision (a) provided that: “Any person who commits any of the following acts upon a child who is under 14 years of age and 10 or more years younger than the person is guilty of aggravated sexual assault of a child.” (Italics added.) When appellant was prosecuted for those offenses in 2009, an amended version of section 269, subdivision (a), only required the victim to be “seven or more years younger” than the perpetrator. The information alleges a violation under the 2009 version of the statute.
We conclude, and the People concede, that appellant’s convictions of aggravated sexual assault on a child violate the ex post facto clause of the United States Constitution and cannot stand. That clause states that “‘No state shall . . . pass any . . . ex post facto law . . . .’ (U.S. Const., art. I, § 10, cl. 1.) A law violates the ex post facto clause only if it is retroactive—that is, if it applies to events occurring before its enactment—and if its application disadvantages the offender.” (People v. Sandoval (2007) 41 Cal.4th 825, 853.) A statute that creates a punishment or makes an existing punishment more severe may not be applied to crimes committed before the date that the statute became effective. (See Carmell v. Texas (2000) 529 U.S. 513, 522-525.) Laws that “define[] past conduct as a crime, increase[] the punishment for such conduct, or eliminate[] a defense to a criminal charge based on such conduct” cannot be applied to crimes committed before the measure’s effective date. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)
Appellant is almost nine years older than Jessica and more than seven and one-half years older than Erica. Consequently, at the time of the charged offenses, when section 269 required at least a 10-year age difference between the sex offender and the child, appellant was not 10 or more years older than his victims and could not be prosecuted or convicted under that section. The subsequent amendment of section 269, reducing the required age difference to only seven years (an age difference appellant exceeded with each of the girls), made appellant’s prior conduct a crime only after the fact, a classic example of an ex post facto law. His convictions of section 269 can therefore not be sustained.
D. Imposition of lesser included offenses
In appropriately disposing of a matter, an appellate court “[m]ay reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed. . . .” (§ 1260; People v. Moore (2006) 39 Cal.4th 168, 174.) When the record reveals that a defendant cannot be held for the crime of which he was convicted and sentenced, but can be properly convicted of a lesser included offense which is not barred by the same infirmity as the greater offense, we may modify the judgment to reflect conviction of the included offense. (People v. Jerome (1984) 160 Cal.App.3d 1087, 1097; People v. Enriquez (1967) 65 Cal.2d 746, 749.)
A lesser offense is necessarily included in the charged offense if it meets the “‘elements test.’” (People v. Lopez (1998) 19 Cal.4th 282, 288.) That test is satisfied when all of the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. (Ibid.)
Subdivisions (a)(5) and (a)(4) of section 269, state that a person who commits one of the acts specified in that section on a child under 14 years of age and seven or more years younger than the perpetrator is guilty of aggravated sexual assault of a child. The specified proscribed acts include, “(4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. [¶] (5) Sexual penetration in violation of subdivision (a) of Section 289.”
Section 289, subdivision (a), sexual penetration by force, violence, duress, menace, or fear of immediate bodily injury, and section 288a, subdivision (c)(2), oral copulation by force, violence, duress, menace, or fear of immediate bodily injury, are lesser included offenses of section 269, subdivisions (a)(4) and (a)(5), respectively, under the elements test because section 269 expressly makes them elements of that offense by defining aggravated sexual assault to include them. (See § 269, subds. (a)(4) & (a)(5).) Hence, all of the legal ingredients of the lesser offenses are included in the greater offense.
As a result, if section 289 can withstand appellant’s statute of limitations challenge to his convictions in counts 7 and 8, that section must replace his convictions of section 269 in those counts. Because appellant does not assert a statute of limitations challenge to count 9, a conviction of section 288a must replace appellant’s conviction of section 269 in that count.
E. Statute of limitations
1. Applicable limitations period when the charged offenses occurred
Having concluded that appellant could properly be convicted of section 289, subdivision (a) in counts 7 and 8, we must now determine whether the applicable statute of limitations for that offense had run on either of those convictions before the prosecution was commenced. The prosecution has the burden of proving that the charged offense was committed within the applicable limitations period. (People v. Lopez (1997) 52 Cal.App.4th 233, 248.)
As reflected in the guilty verdict forms, the jury found that the offense charged in count 7 occurred no earlier than January 2, 1995, and no later than June 30, 1996, and the offense charged in count 8 occurred no earlier than July 1, 1996, and no later than December 31, 1997, which verdicts were supported by the evidence, the sufficiency of which appellant does not challenge. During these time periods, the applicable statute of limitations was set forth in section 800, which provided that “prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense.” The maximum penalty for violating section 289, subdivision (a) was eight years in prison.
Because the jury found that the offense in count 7 occurred no earlier than January 2, 1995, that is the earliest date that the six-year statute of limitations in section 800 could have begun to run, and January 2, 2001, is the earliest date by which it could have run. Similarly, because the jury found that the offense in count 8 occurred no earlier than on July 1, 1996, that is the earliest date that the limitations period could have begun to run, and July 1, 2002, the earliest date by which it could have run.
2. January 1, 2001, extension of limitations period in section 803, subdivision (h)
On January 1, 2001, former section 803, subdivision (h), became effective, providing a 10-year limitations period for violation of section 289, subdivision (a).^[4] Its effective date was before the earliest date that the six-year statute of limitations applicable to counts 7 and 8 would have run. Before a statute of limitations has run, it can be extended by a new statute of limitations without offending the ex post facto clause. (People v. Superior Court (German) (2004) 116 Cal.App.4th 1192, 1196; People v. Vasquez (2004) 118 Cal.App.4th 501, 504; In re White (2008) 163 Cal.App.4th 1576, 1583.) Therefore, former section 803, subdivision (h) extended the statute of limitations applicable to count 7 to no earlier than January 2, 2005, and to count 8 to no earlier than July 1, 2006.
3. January 1, 2006, extension of limitations period in section 801.1
Effective January 1, 2006, the Legislature amended section 801.1, to add subdivision (a), which modified the statute of limitation applicable to counts 7 and 8 by providing, “Notwithstanding any other limitation of time described in this chapter, prosecution for a felony offense described in Section . . . 289 . . . relating to penetration by an unknown object, that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim’s 28th birthday.”^[5]
Because the jury found that the offense charged in count 7 occurred between January 2, 1995, and June 30, 1996, the 10-year statute of limitations, added by the January 1, 2001, adoption of section 803, subdivision (h), would have run at the earliest on January 2, 2005, and at the latest on June 30, 2006. If the charged molestation occurred between January 2, 1995, and December 31, 1995, the first part of the period in which the jury found that it occurred, the 10-year statute of limitations would have run before the adoption of section 801.1. If, however, the molestation occurred between January 2, 1996 and June 30, 1996, the latter portion of the period in which the jury found that the incident occurred, then the 10-year limitations period would not have run before adoption of section 801.1. When during the period of January 2, 1995, and June 30, 1996, the offense occurred would determine if the statute of limitations had run before the January 1, 2006, adoption of section 801.1; if the molestation occurred between January 2, 1995, and December 31, 1995, the statute would have run, had it occurred between January 1, 1996, and June 30, 1996, it would not have run.
It was the prosecution’s burden to establish that the offense was committed within the limitations period. (People v. Lopez, supra, 52 Cal.App.4th at p. 248.) But the prosecution failed to introduce evidence sufficient to establish when specifically the offense occurred and that the statute of limitations had not run before the January 1, 2006, adoption of section 801.1. The charge in count 7 could therefore not be revived by the new statute of limitations without offending the ex post facto clause. (Stogner v. California (2003) 539 U.S. 607, 632–633 [“law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution”].)
As to count 8, the jury found that the offense occurred between July 1, 1996, and December 31, 1997. The 10-year statute of limitations therefore ran, at the earliest, on July 1, 2006, and at the latest on December 31, 2007. Even at the earliest date that the 10-year statute of limitations could have run, it would not have run before section 801.1, extending the statute until the victim was 28 years old, was adopted. Hence, that statute extended the limitations period as to count 8.^[6] (People v. Superior Court (German), supra, 116 Cal.App.4th at p. 1196; People v. Vasquez, supra, 118 Cal.App.4th at p. 504; In re White, supra, 163 Cal.App.4th at p. 1583.) At the time the prosecution was initiated, Jessica was not yet 28 years old.^[7]
F. Conclusions
We conclude that (1) appellant’s convictions of aggravated sexual assault of a minor (§ 269) in counts 7, 8 and 9 violate the ex post facto clause of the United States Constitution and cannot be sustained, (2) appellant could be convicted of the lesser included offenses of section 289 in counts 7 and 8, and section 288a in count 9, (3) the prosecution and conviction of appellant for violating section 289, in count 7 was barred by the statute of limitations and it, and all related enhancements, are reversed and dismissed, and (4) the prosecution and conviction of appellant for violating section 289 in count 8 was not barred by the statute of limitations.
II. Denial of motion to sever
A. Background
Appellant filed a motion to sever counts 1 through 6, pertaining to the sexual attacks on the adult victims, from counts 7 through 10 pertaining to the sexual offenses against the children.^[8] He argued that the evidence in counts 1 to 6 was based on overwhelming DNA evidence and the cell phone recovered from appellant at the time of his arrest. It reflected crimes against adult females walking alone in public, stalked by the perpetrator who planned the attack. The evidence in counts 7 through 10 was based on the eyewitness evidence of children, for which there was no corroborating physical evidence, and only one of the children ever reported any incident. The children only came forward after hearing that appellant had been charged with the offenses against the adults. Appellant also argued that the two groups of offenses occurred more than 10 years apart and were based on entirely different facts, victims and defenses, as he had a consent defense to the offenses against the adults, but not the offenses against the children.
The prosecutor argued that all of the offenses involved force, menace or duress, the same class of offenses, and identity was not an issue. The same evidence would be allowed to show propensity and intent, under Evidence Code sections 1101, subdivision (b) and 1108, all of the victims were currently adults, and the least degree of similarity was required to introduce evidence on the issue of intent.
The trial court denied the motion. It found that the same class of crimes was involved, was unconvinced that one type of evidence was stronger than another, section 954 favors joinder, the time gap between the crimes was of no consequence, and no one crime was more inflammatory.
B. Contentions
Appellant contends that the trial court abused its discretion and denied him due process by denying his motion to sever. He argues that the crimes in counts 1 through 6 were a different class of crimes than those contained in counts 7 through 10 and that trying them together was prejudicial. This contention is without merit.
C. Standard of review
A trial court’s denial of a motion for severance may be reversed only for an abuse of discretion. (People v. Ramirez (2006) 39 Cal.4th 398, 439.) An abuse is found when the trial court’s ruling falls outside the bounds of reason. (Ibid.)
D. Requirements to combine charges
Section 954 provides: “An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated . . . .” Consolidation must be evaluated against the backdrop of a legislative preference for joint trials. (People v. Sullivan (2007) 151 Cal.App.4th 524, 557; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 [consolidation or joinder of charged offense is preferred by law].) It serves the important function of promoting “‘judicial efficiency.’” (People v. Gray (2005) 37 Cal.4th 168, 221.) Hence, the trial court has broader discretion in ruling on consolidation than on the admission of evidence. (Alcala v. Superior Court, supra, at p. 1221.)
As provided in section 954, a pleading may charge two or more different offenses so long as at least one of two conditions are met. The offenses are: (1) connected together in their commission, or (2) “‘of the same class.’” (People v. Soper (2009) 45 Cal.4th 759, 771.) Consolidation here was proper under either condition.
Murder, robbery and rape are “‘“offenses of the same class of crimes”’” for purposes of section 954, as they are all “‘assaultive crimes’” against the person. (People v. Ramirez, supra, 39 Cal.4th at p. 438; People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Charges of rape, sex perversion and sodomy belong to the same class of crimes within section 954, (People v. Lindsay (1964) 227 Cal.App.2d 482, 492), as do rape and lewd and lascivious conduct. (People v. Ross (1960) 178 Cal.App.2d 801, 805.) Similarly, aggravated sexual assault against a child belongs to the same class of offense as the crimes of rape and sexual assault. They are all sexual offenses against the person.
Additionally, the consolidated matters here were “connected together in their commission.” (§ 954.) The cases construing this language have uniformly allowed joinder of several offenses for trial even though they do not relate to the same transaction and were committed at different times and places and against different victims, where there is “‘“a common element of substantial importance in their commission”’” (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted; People v. Lindsay, supra, 227 Cal.App.2d at pp. 491–492.) A common element is sexual motivation. (People v. Poon (1981) 125 Cal.App.3d 55, 69.)
While the offenses here certainly had numerous significant differences, they also had several “‘“common element[s] of substantial importance.”’” (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted.) All of the consolidated charges were based on conduct that was sexually motivated. Appellant engaged in sex with the three adult women in which he reached orgasm, reflecting his sexual gratification. With the minors, he penetrated their vaginas with his fingers and, on at least one occasion, he masturbated in front of Erica until he climaxed, reflecting the sexual motivation for his conduct.
Moreover, all of the charged offenses involved sexual gratification achieved by the use of force, fear, or duress, by taking advantage of vulnerable females. The adult women were plucked from the street, physically forced into appellant’s van and raped. The young girls were pressured by appellant’s seniority, relationship to them as their uncle, and their fear. We find these common elements sufficient to support the consolidation of the charges. The statutory criteria authorizing consolidation were therefore met.
Appellant argues that “[t]he brutality and planning of the crimes [against the adult women] is non-existent in [the counts against the children].” He also points to the facts that the ages of the victims differed as did the type of sexual activity. We determine the class of offenses, not by their differences, but by their common elements. We find those significant here.
E. Prejudice
Once it is determined that the statutory requirements for joinder of charges are met, the defendant must then shoulder a heavy burden of establishing a clear showing of substantial prejudice from the failure to sever the charges. (People v. Ramirez, supra, 39 Cal.4th at pp. 438–439; People v. Ochoa (1998) 19 Cal.4th 353, 409.) In determining whether the trial court abused its discretion in denying a motion to sever charges properly joined, the reviewing court must consider the particular circumstances of each case, though certain criteria have emerged to provide guidance (People v. Soper, supra, 45 Cal.4th at p. 774), including, (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong one or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161; People v. Soper, supra, at pp. 774–775.)
1. Cross-admissibility
Much of the evidence regarding the sexual offenses against each of the two groups of victims would likely have been cross-admissible if tried separately. Evidence Code section 1108, subdivision (a) provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”^[9] To be admissible on the issue of the defendant’s propensity to commit the charged sexual offense, prior sexual misconduct need not be as similar to the charged offenses under Evidence Code section 1108, as under Evidence Code section 1101. (People v. Escudero (2010) 183 Cal.App.4th 302, 311 (Escudero).) “It is enough the charged and uncharged offenses are sex offenses.” (Ibid.) In Escudero, the Court of Appeal concluded that the fact that the prior victims of the defendant’s sexual offenses and the charged victim was a young minor “had substantial probative value despite the age differences.” (Ibid.)
Though, as previously stated, there were significant differences between the offenses against the two groups of victims, we find that the significant similarities predominate and would likely have led to cross-admissibility of evidence. “[T]he willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.” (Review of Selected 1995 California Legislation (1996) 27 Pacific L.J. 761, 762, 768.) Absolute similarity is not required. (See People v. Callahan (1999) 74 Cal.App.4th 356, 368.) “‘[S]ex offenders are not “specialists,” and [may] commit a variety of offenses which differ in specific character.’” (Ibid.)
As discussed in part IID, ante, there are similarities between appellant’s sexual misconduct with his nieces and with the adults whom he molested. All of the victims were in vulnerable situations; the young children were alone with a much older uncle, who took advantage of his position of trust, and the adult women were alone in the street during hours when most people were asleep. Appellant focused his molestation on their vaginal areas and climaxed with the adults and, on at least one occasion, with the children. All of the offenses reflected a common brazenness in appellant’s efforts to gratify himself. Moreover, appellant utilized varying degrees of physical force in all of the offenses. Thus, it is likely that some of the offenses would be cross-admissible. Cross-admissibility is sufficient to dispel any prejudice. (Alcala, supra, 43 Cal.4th at p. 1221.)
2. Inflammatory nature of consolidated action
We agree with the trial court that neither set of offenses is appreciably more inflammatory than the other. Unlike in People v. Earle (2009) 172 Cal.App.4th 372, relied upon by appellant, the charges against each of the two groups of victims were very serious. Appellant was charged with kidnapping and forcible rape of the adults and forcible penetration and oral sex with the young children. The rapes of the adult victims were violent, brutal and terrifying to its victims. The attack on Kiki involved physically dragging her to the van and forcing her inside. Appellant repeatedly hit Natalie in the face as he was trying to get her into the van. The offenses against the adults were committed by appellant when he purported to be offering them a ride home late at night or early in the morning.
While the molestation of the children was less violent, it was no less coercive, forceful and horrifying. When appellant was penetrating Jessica with his finger, he forced her down as she tried to get away, and she experienced pain in her vaginal area. In some respects, these offenses were more inflammatory than those against the adult victims, as any sexual offense by a relative against a child relative is viewed as heinous because of the girls’ ages and the advantage taken by the relative of his relationship with the children.
3. Consolidating weak case with a strong case
This matter did not involve consolidating a strong case with a weak one, or two weak ones, to improve the likelihood of conviction. The cases relating to both groups of victims were strong. While appellant claims that DNA evidence is stronger evidence than percipient testimony of two adults as to what appellant did to them years earlier when they were children, exact equality in strength of the consolidated claims has never been required. The children corroborated each other’s story, and one incident was reported to Erica’s mother.
Also, appellant admitted having sex with the adult women. He claimed that the intercourse was consensual. Given that defense, the DNA evidence, while compelling that appellant had intercourse with the women, was not determinative of his guilt. The jury still had to determine whether the intercourse was with the consent of the women. Only one of the women was physically hurt during the rape, providing evidence that it was not consensual. In the other rapes, it was a matter of appellant’s word against the victim’s.
The charges relating to appellant molesting his nieces were also based on eyewitness evidence by the victims. Appellant’s defense to this charge was that he never touched them inappropriately.
4. Charges are not noncapital offenses
This case does not involve a capital offense nor did consolidation render any offense a capital offense.
In light of the foregoing, we conclude that there was not undue prejudice and the trial court did not abuse its discretion in denying appellant’s motion to sever the charges relating to his sexual crimes against the adult victims from those against the children.
III. Prosecutorial misconduct
A. The prosecutor’s challenged comments
During opening statements, the prosecutor made numerous comments that appellant now challenges. The prosecutor referred to the sexual assault on the minor victims, and said, “I think you will see them beating themselves up a little bit that they didn’t continue to push this. I think they feel a little guilty that there are victims there. They will testify in that regard.” During closing argument, she argued to the jury, discussing social issues with molestation by priests, stating, “It didn’t happen. Here we have in our day, there was a day when we really wouldn’t listen to our kids. You think of the ministry situation, you think of things. Everybody can sit here in court and it’s wonderful how much our society has progressed in that regard.” She called appellant “Mr. Sexually Excited.” “The one thing about it, we need all 12. When you go into the deliberation room, remember that there may be one or two of you that will hear someone say something, and you are going, did they see the same trial I did‌ I mean it’s so easy with this emotion. We need all 12.” The prosecutor argued regarding the element of consent, “Let’s say you’re demented. I think I’m Jesus Christ. I think every woman wants me like you cannot believe, and I go around raping people. I believe they wanted it. Look at me,” contrasting it with “the reasonable person.” “You don’t let people that have deranged orientation towards sexual things to decide what the standard is.” In describing actions of appellant, the prosecutor said, “what’s so sick.”
B. Contentions
Appellant contends that the prosecutor’s above-stated comments, and others, constituted prosecutorial misconduct. He argues that the prosecutor urged “the jury to utilize their anti-deviant bias to evaluate the case, as well as their own experience of guilt and regret in hindsight of not preventing something.” The prosecutor “confused the issues to the jury by treating the counts as one whole rather than separate counts.” He claims that the argument enticed the jury to not consider the charges individually but for each crime to “build upon his guilt of each other crime, that his deviance in committing each crime in succession proves his guilt for the next. . . .” This contention is utterly without merit.
The People contend that appellant has forfeited this contention by failing to object to any of the challenged evidence on this ground and to request an admonition. We agree.
C. Forfeiture
“Generally, ‘“a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’ [Citation.] This general rule, however, does not apply if a defendant’s objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct; nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 1001; People v. Carter (2005) 36 Cal.4th 1114, 1204.) Additionally, to preserve an objection for appeal, it must be accompanied by “the specific ground of the objection.” (Evid. Code, § 353, subd. (a).)
Appellant failed to object, let alone request an admonition, to a single comment by the prosecutor that he now contends constituted misconduct. He has therefore failed to preserve this contention for appeal.
D. Misconduct
Even if appellant had not forfeited this claim, we would nonetheless reject it on the merits. The well-established federal and state standards for assessing a claim of prosecutorial misconduct were set forth by our Supreme Court in People v. Samayoa (1997) 15 Cal.4th 795, 841: “‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] 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 court or the jury.’”’” To support a claim of prosecutorial misconduct, a defendant must show either a pattern of egregious conduct or employment of persuasion methods so deceptive as to create a reasonable likelihood that such behavior prejudicially affected the jury. (See also People v. Ochoa, supra, 19 Cal.4th at p. 427.) The misconduct need not be intentional. (People v. Bolton (1979) 23 Cal.3d 208, 214.)
Appellant refers to numerous statements out of context from the prosecutor’s argument that he argues directs the jury to rely on anti-deviant bias. We find none of the comments improper, and upon our careful review of the prosecutor’s entire argument, fail to see anything that goes beyond the bounds of proper argument. This case is about deviant sexual behavior, making it unsurprising and appropriate for the prosecutor to argue that the behavior is deviant and appellant therefore a deviate. Use of the epithet “Mr. Sexually Excited” is also permissible. (See People v. Poggi (1988) 45 Cal.3d 306, 339 [“‘evil spirit in a bottle’”].) The prosecutor may discuss the facts and law as he or she sees fit, advance any theory fairly within the evidence and urge any conclusions or deductions deemed proper. (People v Hardy (1969) 271 Cal.App.2d 322, 329–330.) “Counsel have a right to present to the jury their views of the proper deductions or inferences which the facts warrant. Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel.” (People v. Willard (1907) 150 Cal. 543, 552.) None of the challenged comments, individually or collectively, rendered the trial “fundamentally unfair.” (See People v. Ochoa, supra, 19 Cal.4th at p. 427.)
IV. Cumulative error
Appellant contends that there was cumulative error which collectively violates due process. He points to a potpourri of claims cumulatively mandating reversal, including claims that the trial court was biased against him by failing to rule on defense objections while ruling on the prosecutor’s objections, that evidence of pressure put on Jessica by her aunt in the hallway of the courtroom just before testifying and without instructing the jury on how to consider this evidence, the trial court’s failure to limit introduction of evidence of crime outside of the court’s jurisdiction and other grounds. We reject this meritless contention, which is not adequately articulated or supported.
Appellant includes a plethora of claims, not previously briefed or discussed, with minimal discussion and analysis and no citation of authority. He fails to meet his burden of affirmatively demonstrating any error he alleges. (People v. Garza (2005) 35 Cal.4th 866, 881; People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6.) A point asserted on appeal without authority or adequate development of argument will not be considered. (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9.) California Rules of Court, rule 8.204(a)(1)(B) requires each point be made under a separate heading.
V. Denial of motion for mistrial
A. Background
Jessica testified to an incident in which appellant first molested her when she was three years old. Appellant objected to this line of questioning on the ground that it was irrelevant. The objection was overruled. No motion for mistrial was made.
Later during trial, Erica testified regarding an incident with appellant in Texas, when Erica was 14-years-old, where appellant commented that Erica’s breasts had grown, as he touched her breast. Defense counsel’s objection that the incident was irrelevant was overruled. He then asked for a limiting instruction. At a sidebar conference, the prosecutor stated that the evidence was an admission that appellant had been fondling Erica and of subsequent conduct in conformity with the alleged conduct. Defense counsel argued that, “There is no jurisdiction; she is in Texas,” and that that evidence was not an admission that appellant had previously done something to Erica. He also argued that “[t]here is no 1108 notice to us that they would be introducing this as 1108 evidence. It’s not charged.” The trial court overruled the objection, commenting that the evidence “goes to the evidence of knowledge.”
On cross-examination, defense counsel elicited from Erica that her little sister immediately told her mother about the first incident. Because this answer was nonresponsive to the question asked, the trial court struck it. Erica then testified that she or her mother first reported an incident involving appellant when Erica was eight years old.
Later, defense counsel made a motion for a mistrial^[10] “based on [his] previous arguments, and then when Erica . . . brought out that her mother had complained about her sister being a victim as well,” which “just adds to the prejudice. . . .” The trial court then asked defense counsel if he would like an admonition to explain to the jury the complaint by Erica’s mother. It did not appear that the jury wrote any notes regarding the testimony, and defense counsel then said he did not want an admonition unless the motion was denied.
The trial court denied the motion, “there being no request for admonition,” because there was extensive discussion during Jessica’s testimony about why she did not report that appellant had molested her. An explanation of why Erica did not report “goes to her state of mind.” She did not report because when previously reported, nothing came of it. The trial court found that it was not unfairly prejudicial, and was “innocuous at best.”
B. Contention
Appellant contends that the trial court abused its discretion in denying his motion for mistrial. He argues that there was improper evidence admitted, including evidence of appellant’s molestation of Jessica when she was three years old, appellant’s molestation of Erica when she was in Texas, and that a prior incident was reported to law enforcement and not taken seriously. Further, there was no notice of these incidents given to the defense as required by Evidence Code section 1108. This contention is meritless.
C. No abuse
A trial judge has broad control over the proceedings during criminal trials. (§ 1044.) “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555 [affirmed denial of mistrial request, finding it insignificant in context of entire trial that a witness referred to “parole office”].)
When the testimony was elicited regarding appellant molesting Jessica when she was three years old and the Texas incident with Erica, there were no requests for a mistrial. Consequently, the failure to grant a mistrial where none was made cannot be error. However, a request was made after Erica testified that she did not tell anyone about the incidents with appellant because an earlier report of such conduct by her sister did not result in any action against appellant. While appellant termed the motion for mistrial as a renewed motion for mistrial, “based on my previous arguments,” it does not appear that any other motion for a mistrial had been made. Furthermore, there was no specification as to which “previous arguments” appellant was referring.
In any event, the trial court properly admitted that evidence because appellant was asserting that the alleged molestations never occurred, as reflected by his nieces’ failure to report the incidents. Erica’s brief testimony that she did not report the incidents because her sister’s prior report did not result in any action being taken against appellant, did not irreparably damage his “chances of receiving a fair trial” (People v. Bolden, supra, 29 Cal.4th at p. 555) so as to warrant granting the motion for mistrial.
DISPOSITION
Appellant’s conviction of count 7 and related section 667.61 enhancement are reversed and dismissed; his conviction in count 8 of aggravated sexual assault (§ 269, subd. (a)(5)) is modified and made a conviction of section 289, subdivision (a); his conviction in count 9 of aggravated sexual assault (§ 269, subd. (a)(4)) is modified and made a conviction of section 288a, subdivision (c)(2). The judgment is otherwise affirmed. This matter is remanded to the trial court for resentencing consistent with this decision.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



_________________________, J.
ASHMANN-GERST
We concur:


_______________________, Acting P. J. _________________________, J.
DOI TODD CHAVEZ

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