The trial court excluded the evidence of O.s sexual conduct, but allowed the two prostitution convictions to be used for impeachment, stating: I think we have to balance [Evidence Code section] 1103 and impeachment of a witness. [] And if the conduct is admitted, then what we have done is[,] in the name of impeachment[,] just abrogated [section] 1103.

Defendant, in part, faults the trial court for not conducting an evidentiary hearing at which O. would have testified. A hearing is warranted as follows: If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. (Evid. Code,  782, subd. (a)(3).) Under the statutory scheme, the trial court first accepts the offer of proof as true. He [or she] then determines whether, if the evidence is as the defendant claims, it is relevant and if relevant whether its probative value is outweighed by the probability of undue prejudice or the undue consumption of trial time. (Evid. Code,  352.) Only if the judge determines both questions in favor of admissibility is the offer of proof sufficient. Only if it is sufficient is the trial court required to conduct the hearing to determine if the offer truly recites what the evidence will be. (People v. Blackburn (1976) 56 Cal.App.3d 685, 691-692.) Thus, the purpose of the hearing is to verify the accuracy of the offer of proof. In this case, there was no dispute about the accuracy of the defense affidavit. On appeal, defendant does not explain how a hearing at which O. testified would have bolstered his theory of admissibility. Nothing in the record suggests that having O. testify would have added relevant information to the trial courts ultimate decision to exclude the evidence of her subsequent sexual conduct, apart from the prostitution convictions themselves.

In connection with this claim of procedural error, defendant inappropriately seizes on a comment by the Attorney General. At the end of the Attorney Generals argument, he contends that if we find the trial court erred on the merits of its ruling, instead of reversing outright, we should remand for an evidentiary hearing to test the offer of proof. Defendant characterizes this as a concession of procedural error. We do not view the Attorney Generals statement as a concession of procedural error. It is merely an alternative, prophylactic, argument.

Defendant also contends the trial court erred procedurally by failing to exercise its discretion in determining the admissibility of the sexual conduct evidence. On the record, after considering the written submissions and oral arguments of the parties, the trial court stated that allowing sexual conduct evidence beyond O.s prostitution convictions would abrogate[] the rape shield laws. Defendant interprets this to mean that the trial court failed to engage in the evidentiary weighing process contemplated by that scheme. We disagree. The Peoples opposition papers quoted Evidence Code section 352 and explained its relevance in making a section 782 determination, in part arguing that the evidence is of little probative value and is highly prejudicial. And, as quoted ante, the trial court stated: I think we have to balance [Evidence Code section] 1103 and impeachment of a witness. [] And if the conduct is admitted, then what we have done is[,] in the name of impeachment[,] just abrogated [section] 1103. Thus, the trial court explicitly referred to the need to balance. It is clear that the trial court was not stating that such evidence would never be admissible, it was stating it was not admissible for lack of an adequate showing. The fact the trial court did not place on the record the details of its analysis does not mean it did not balance the appropriate factors, as defendant surmises. (See People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

On the merits of the trial courts ruling, defendant states the evidence was relevant to the kidnap allegations because it would have impeached [the victims] testimony that she did not willingly travel in [defendants] car to the park and instead would tend to show she accompanied defendant there voluntarily, to complete an act of prostitution. In the reply brief, defendant emphasizes the evidence was to be introduced to demonstrate the complaining witness was willing to get in cars at night with strangers, in the area of the charged incident, for sex.

A trial courts ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion. (People v. Chandler (1997) 56 Cal.App.4th 703, 711 (Chandler).) The credibility exception should not impermissibly encroach upon the rule itself and become a back door for admitting otherwise inadmissible evidence. (People v. Rioz (1984) 161 Cal.App.3d 905, 919; see id. at p. 918 (Rioz).) The trial courts ruling in part allowed the introduction of O.s prostitution convictions to impeach her. The trial court could rationally conclude the details of how O. engaged in prostitution would not significantly change the jurys view of her credibility, but would only further deprecate her character.

Further, the trial court could conclude the circumstances of the rape, involving violence with objective corroboration of injuries, and fresh complaints, obviated the defense claim. This case is strikingly like an example discussed in another case, as follows: A defendant charged with forcible rape [offers] to prove that the complaining witness, a convicted prostitute, agreed to have sex with the defendant for money and charged him with rape to get even with him when he refused to pay her. However, not only has the complaining witness denied that the sexual activity with the defendant was consensual, but other evidence establishes without contradiction that the complaining witness was beaten in connection with the event. Given the potentially prejudicial impact of a prostitution conviction on the victims testimony that she did not consent, the trial court, in the exercise of its discretion, may determine that the injuries suffered by the victim are wholly inconsistent with the defendants offer of proof and either reject the sufficiency of the offer of proof in the first instance or exclude evidence of the prostitution conviction, after a hearing, pursuant to Evidence Code section 352. (Rioz, supra, 161 Cal.App.3d at pp. 916-917.)

Here, as indicated, the trial court allowed the prostitution convictions into evidence, unlike in the example just described. The victims corroborated injuries and fresh complaints are not consistent with the defense view that the sex was consensual. The defense speculated that someone else beat the victim up after she and defendant engaged in consensual prostitution, but there was no evidence supporting that theory and the evidence excluded by the trial courts ruling would not have changed that calculus.

Defendant cites authority for the proposition that the evidence was admissible because the charged offenses included oral copulation. The case cited states in part: We do not, here, hold that in every rape case where the prosecutrix is a prostitute, evidence of that fact must be admitted to show consent. The official records offered here show, not only that the woman was a prostitute, but: (1) that, in pursuit of her profession, she walked the night streets, in this very area, to solicit customers; and (2) that, in the practice of that profession, she not only engaged in normal intercourse, but that she specialized in oral copulation. The first fact is here of special significance in that it casts light on the womans story that she was walking to the bus stop because the friend who had driven her from the friends home had callously refused to drive two blocks further, to the bus stop because the friend had, at 11:30 p.m., an urgent appointment at home. The second fact is also very significant in that it tends to support the defense claim that the oral copulation, on which count IV was based, was voluntarily engaged in by the woman. These special factors, we conclude, made it an abuse of discretion to deny the disclosure motion. (People v. Varona (1983) 143 Cal.App.3d 566, 569-570.) Varonas view that oral copulation was a special factor justifying introduction of sexual conduct evidence is stale. Varona was decided just a few years after consensual oral copulation had been decriminalized, in 1976. (See People v. Rossi (1976) 18 Cal.3d 295, 298.) It is now wholly unremarkable that a prostitute, or an unpaid sexual partner, would engage in oral copulation. But Varona also noted that the evidence showed the prosecutrix ostensibly plied her trade in the very area in which the alleged crime occurred. (Varona, supra, at pp. 569-570.) Arguably, the same can be said here--that the evidence the prostitution cases arose from conduct in the vicinity of the charged crimes would bolster the claim that the victim lied about what she was doing that night.

Assuming this view demonstrates a misapplication of legal standards by the trial court and the evidence should have been introduced, any error was harmless. The jury already learned the victim was a prostitute and had used crack cocaine in the days before the alleged attack. Further details about her method of prostitution would not have changed its view of her veracity. (See Chandler, supra, 56 Cal.App.4th at pp. 711-712 [jury learned victim engaged in sex for drugs, fact jury did not learn how often she did so harmless].) Arguably, the defense evidence may have convinced the jury she lied about why she got into defendants car, but she testified she did so voluntarily, and defendant was not charged with participating in an act of prostitution, he was charged with forcible sex offenses accomplished by a savage beating. Defendant fails to explain why, even if the jury thought the victim lied about why she got into the car, the jury would think she lied about how she was assaulted or who assaulted her.

Defendant speculates that the jury may have found the victim and defendant had consensual sex and then got into an argument in which he beat her, or that the victim may have been beaten by some other man. As indicated above, there is no evidence in the record supporting these theories, and the excluded evidence would not change this evidentiary gap.

Defendant contends the trial courts evidentiary ruling undermined his ability to raise a defense that he reasonably believed the victim consented. (See People v.Mayberry (1975) 15 Cal.3d 143 (Mayberry).) We disagree.

Although a defendant need not testify in order to raise a Mayberry defense, there must be evidence in the record from which the jury could rationally find the defendant acted with a reasonable belief in consent. (See People v. Simmons (1989) 213 Cal.App.3d 573, 579-580; People v. Anderson (1983) 144 Cal.App.3d 55, 59-60, 62 [witness to incident did not perceive force].) Such a defense requires the defendant to subjectively believe the victim consented, by showing evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent[,] and, objectively, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction. (People v. Dominguez (2006) 39 Cal.4th 1141, 1148, quoting People v. Williams (1992) 4 Cal.4th 354, 360-361.) A Mayberry instruction is warranted only where there is evidence from which the jury could rationally find a reasonable doubt based on the mistake about consent. (People v. Rhoades (1987) 193 Cal.App.3d 1362, 1368-1369; People v. Romero (1985) 171 Cal.App.3d 1149, 1156 [a Mayberry defense cannot be raised without some evidence that the victim acted in a manner that reasonably could be misunderstood by the defendant].) There was no such evidence in this case. O.s testimony of abuse showed her struggling and defendant responding with violence to force her to submit, a description incompatible with mistaken consent. The trial courts ruling did not exclude evidence from which the jury could rationally have found defendant mistakenly thought the victim consented.

Finally, defendant contends the ruling violated his federal rights to due process and to confront witnesses, and therefore any error must be deemed prejudicial unless it was harmless beyond a reasonable doubt. We disagree. Generally, the neutral application of state law evidentiary rules does not violate a defendants right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) More specifically, A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624; see Bautista, supra, 163 Cal.App.4th at p. 783.) Here, as indicated, the jury learned from the victims testimony that she was a drug-abusing prostitute at the time of the attack, and that she continued to work as a prostitute thereafter, as shown by her two subsequent prostitution convictions. She was not portrayed as a person of chaste character.

II.

Oral Copulation

Defendant contends substantial evidence supports only two counts of forcible oral copulation. We agree.

We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)

The evidence must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value[.] (Estate of Teed (1952) 112 Cal.App.2d 638, 644, quoted with approval by People v. Johnson (1980) 26 Cal.3d 557, 576.)

A reasonable inference . . . may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] [] Evidence is sufficient to support a conviction only if . . . it reasonably inspires confidence [citation], and is credible and of solid value. (People v. Raley (1992) 2 Cal.4th 870, 891 (Raley).)

The record amply supports the jurys conclusion that defendant violently attacked O., and suggests the beating he inflicted impaired her ability to recall with precision everything that he did to her. But her testimony that defendant forced her to have oral sex [a]bout two or three times, is an estimate or a surmise. Such testimony does not reasonably inspire[] confidence (Raley, supra, 2 Cal.4th at p. 891) that the answer was three as opposed to two.

The Attorney General points out that the victim also testified defendant varied his method of abuse, having her go back and forth between oral sex and intercourse, which happened [t]wo or three times. But this back and forth was also described by an estimate, it happened [t]wo or three times. As stated, such testimony does not provide substantial evidence of the higher number.

Count 3, one of the three counts charging oral copulation, must be reversed for lack of substantial evidence. Because a retrial would be barred by the principles of double jeopardy (see Burks v. United States (1978) 437 U.S. 1, 16-18 [57 L.Ed.2d 1, 12-14]; People v. Hatch (2000) 22 Cal.4th 260, 271-272), that count must be dismissed. We see no purpose in a remand. Each of the oral copulation counts resulted in an additional six years to the determinate term. Accordingly, we will reduce defendants determinate term by six years. (Pen. Code,  1260.)

III.

Consecutive Sentencing

The kidnap findings triggered application of one strike sentencing, and defendant was sentenced to 25 years to life on count 4 (rape). (Pen. Code,  667.61, subd. (a).) Count 5 (rape) was the principal determinate term and the trial court imposed the six-year midterm. The trial court ordered full consecutive six-year sentences on the remaining counts, finding that the defendant did have a reasonable opportunity to reflect on his actions and, nevertheless, resumed sexually assaultive behavior. This resulted in a determinate term of 36 years, apart from the indeterminate term of 25 years to life.

Defendant contends imposition of full-term consecutive sentencing was improper because the fact relied on by the trial court, whether defendant continued to commit assaults despite an opportunity to reflect, was not determined to be true by the jury. He relies on Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and related cases interpreting the Sixth Amendment.

The Apprendi rule does not apply to the decision to impose consecutive sentences. (Oregon v. Ice (2009) ___ U.S. ___ [172 L.Ed.2d 517]; People v. Wilson (2008) 44 Cal.4th 758, 813; People v. Black (2007) 41 Cal.4th 799, 820-823; People v. Quintanilla (2009) 170 Cal.App.4th 406, 414; People v. Martinez (2008) 166 Cal.App.4th 1598, 1603-1606.) Accordingly, we reject defendants contention of Sixth Amendment error.

DISPOSITION

The judgment is modified by reversing count 3, dismissing that charge, and reducing the total determinate sentence to 30 years. As so modified, the judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment.

CANTIL-SAKAUYE , J.

We concur:

RAYE , Acting P. J.

ROBIE , J.

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