P. v. Holland








Filed 10/12/11 P. v. Holland CA2/3





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. Marc David Holland, Defendant and Appellant.

B228289 (Los Angeles County Super. Ct. No. GA077491)

APPEAL from a judgment of the Superior Court of Los Angeles County, Candace Beason, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Marc David Holland appeals from the judgment entered following a jury trial which resulted in his conviction of forcible rape (Pen. Code, § 261, subd. (a)(2)),[1] and sexual penetration by a foreign object (§ 289, subd. (a)(1)), during each of which he tied or bound the victim (§ 667.61, subd. (b)), two counts of corporal injury to a cohabitant (§ 273.5, subd. (a)) and the trial court’s finding that, within the previous seven years, he had been convicted of corporal injury to a cohabitant (§ 273.5, subd. (e)(1)). The trial court sentenced Holland to 15 years to life, plus 4 years in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
On July 27, 2009, L. R. lived in an apartment in Pasadena with appellant, Marc Holland. Sometime before July 22, Holland told L. R. that he was going to be leaving for a few days. He was going to Sacramento with a friend. He arrived home fairly early on the morning of the 27th, took a shower and decided to go to sleep on the couch. L. R. went to sleep on the bed.
Early that morning, Holland woke up, went into the bedroom and asked L. R., “ ‘So[,] can we have sex now‌’ ” When L. R. said, “ ‘No[,]’ ” Holland “grumbled [and] mumbled” some foul words and went back into the living room. A few hours later, Holland returned to the bedroom with a roll of masking tape. While L. R. was still half asleep, Holland used the tape to tie up her legs. Holland then kneeled on the bed, “grabbed [L. R.’s] wrists and . . . taped them together.” When L. R. asked Holland what he was doing, he said, “ ‘Well, I’m going to teach you a lesson.’ ” Holland then rolled L. R. onto her side, pulled down her pajamas and, using some kind of lubricant, put his fingers into her vagina “a few times.” Holland said, “ ‘I’m going to fuck you whether you want it or not[,]’ ” then put his penis in L. R.’s vagina. L. R. struggled and told Holland not to do it. However, she did not scream because she “ha[s] neighbors and [she has] pride.”
Approximately 30 minutes after he had penetrated her with his penis, Holland, who had left the room, came back and cut the tape from L. R.’s legs and wrists. He didn’t say anything at the time and, after he went back into the living room, L. R. peeled off the remainder of the tape, went into the bathroom and placed the tape under the liner of the trash can. She then wiped her vaginal area with a tissue and placed the tissue in the trash can. Finally, L. R. brushed her teeth, put some water on her face and “laid back down and tried to go back to sleep, tried to just keep the peace . . . .”
Approximately one hour after the incident with the tape, L. R. again heard Holland walking down the hall toward the bedroom. Holland ejaculated, then “flung” his semen on her. L. R. felt “[h]ot, sticky stuff on [her] face, [her] clean jammies [and her] bedding.” Holland asked L. R., “ ‘How do you like that‌’ ” and she nearly “elevated off [the] bed. [She] freaked out.” L. R. “jumped up, . . . turned the lights on[,] took a look and proceeded to strip down everything [she] could off [of her] bed, [her] pajamas, [and her] face . . . . [She] just . . . threw it behind [her] door and remade [her] bed.”
The next day, July 28, 2009, both Holland and L. R. were in the apartment. Holland took L. R. to the Dollar Store, where she bought some ice cream, chips, soda and other snacks. At about 7:00 that evening, L. R. was watching television in her bedroom when Holland came in and “whacked [her] a couple of times on the face and forehead.” After he told L. R. that she had gone to the “fucking store and [hadn’t gotten] him anything,” Holland said, “ ‘I’m fucking leaving’ ” and he left the apartment.
Heather Coburn had planned to have a party for her husband’s birthday on the evening of Tuesday, July 28, 2009, and she had invited L. R. Coburn and some friends were sitting in the garage when she heard “squealing tires” and “some voices.” Coburn went out to the driveway and saw Holland in his car. He was “red in the face [and] yelling.” He indicated that L. R. had failed to give him a message, then said that he was going to “ ‘stab that fucking cunt.’ ” After yelling out a few more obscenities, Holland “squealed out of the driveway.”
Coburn was “terrified” for L. R. so she went up to L. R.’s apartment to check on her. Coburn found L. R. in her bedroom. She had “redness and some puffiness on one side of her face.” When Coburn asked L. R. to come down and join her at the birthday party, L. R. refused. Coburn turned on the light, looked at L. R. and said, “ ‘I’m so fucking tired of him hitting you. I’m just so fucking tired of it.’ ”
Holland arrived home at approximately 9:00 p.m. Although he “grumbled a little bit here and there,” there was no interaction between him and L. R.
The following day, July 29, 2009, L. R., who had been sleeping in the bedroom, woke up at approximately 8:00 a.m. and wanted to make some coffee. However, Holland was asleep on the couch in the living room and L. R. did not want to wake him up. Finally, at about 10:00 a.m., L. R. tip-toed down the hallway to the kitchen and attempted to make coffee as quietly as possible. Apparently, she wasn’t quiet enough. As L. R. was making the coffee, Holland yelled from the living room to “shut the fuck up.”
L. R. went back to her bedroom and realized that, while she had been in the kitchen, one of Holland’s friends had left a message on L. R.’s cell phone.[2] L. R. listened to the message and the woman who had left it seemed “frantic.” L. R. took the phone into the living room, woke up Holland and told him that he had a message from a friend who sounded frantic and needed to speak with him. After telling L. R. to “ ‘fuck off’ ” several times, Holland “grabbed” the phone and L. R. went back to the bedroom. When it was quiet again in the living room, L. R., believing the call was over, went back out and asked Holland for her phone back. Holland refused to give it to her, indicating that he needed to “ ‘fucking call [his] sister.’ ” Holland then turned around, called his sister in San Diego and told her, “ ‘You got to come up here and get all my stuff. I’m going to jail. You got to come up here and get all my crap. I’m going to jail.’ ”
After that conversation was over, L. R. again asked Holland for her phone. He refused and they had a kind of “tug of war.” Holland, however “won” and was able to keep the phone in his possession. L. R. turned her back and started to walk down the hallway to the bedroom. Holland, who was approximately one-half step behind her, swung his arms and pulled down the curtain that divided the hallway from the living room. He then “shoved” L. R., pushing her from behind. She landed on her hands, knees and elbows and slid across the floor, hitting her head against a cabinet. When Holland then started to yell at L. R., she curled up onto her back in a fetal position. While telling her that she “was a useless piece of shit,” that she “never [did] anything for him” and that she “need[ed] to get a job,” Holland knelt down over L. R., placed his left hand around her neck and began to squeeze. Although she was having difficulty breathing, L. R. decided to respond to Holland’s remarks. She told him, “ ‘I’ve never asked you for rent. I pay for rent, utilities, I pay for everything. I never asked you to get a job. I never asked you for a dime. I never asked for anything [from] you.’ ” After Holland yelled more obscenities at L. R., he got up, said, “ ‘I’m fucking out of here, cunt[,]’ ” then left the hallway and went into the living room.
L. R. decided to hide. She went into her bedroom, locked the door and “pretended . . . [she] wasn’t home.” She “turned the TV low and sat there and hid with a cold rag in [her] hand.” After a time, L. R. decided to leave the apartment and go to see her friend, Heather Coburn. When Holland asked L. R., “ ‘Where are you fucking going, bitch‌’ ” L. R. responded, “ ‘I’m going to Heather’s to get a cigarette.’ ”
Coburn was working in her garage when she heard L. R. yell out, “ ‘Call 911. Call 911.’ ” L. R. went inside, approached Coburn and said, “ ‘Heather, please help me. I can’t do this anymore. Help me, please. Somebody call the police, please.’ ” Then, about three minutes later, L. R. said, “ ‘Don’t. He’s going to kill me. I’m just going to go back.’ ” Coburn insisted on walking back to the apartment with L. R. When they reached the apartment, Holland was on the landing yelling, “ ‘Keep it up, bitch. Keep it up, bitch.’ ” Coburn turned L. R. around and told L. R. to come with her. The two women went back to Coburn’s garage and had a cigarette.
Coburn looked at L. R. and saw “that there was blood on one of her arms.” In looking more closely at the arm, Coburn saw, not bruising, but what one would call a precursor to bruising: swelling, puffiness and redness. L. R. had the same type of markings on her face and neck and her “hair was like a mat on the back of her head.” After a few moments, however, L. R. changed her mind about calling 911 and decided to go back to her apartment. Coburn agreed to accompany her and, as they turned the corner and were walking toward L. R.’s driveway, they saw Holland at the top of the stairs, in the doorway. He was yelling, “quite red in the face” and standing in a “threatening” manner. There was a lot of swearing and Holland yelled out, “ ‘Keep it up, bitch. Just keep it up.’ ” Coburn turned around and, taking L. R. with her, went back to her garage. It was then that Coburn heard Holland “peel[]” out of the driveway. [3] He had left the apartment building in his car. Although she was trembling and attempting not to cry, L. R. wanted to go back to her apartment. Coburn was reluctant to let her go. However, since Holland had left the building, Coburn acquiesced.
L. R. returned to her apartment. She shut the door and made it look as though she wasn’t home. She went back to her room, sat on her bed, turned on the TV so that it was very low and hid.
Coburn wished to call 911 but was not sure whether it was appropriate for her to do so. In addition, she was afraid to call. When she had walked L. R. back to her apartment, Holland had looked at her in a threatening way. Instead of calling the police, Coburn called a friend, Jennifer Rhoads, and told her what had happened. She asked Rhoads to call 911.
Jennifer Rhoads lives in the apartment next door to L. R. and Holland. On Tuesday, July 28, 2009, a few months after Rhoads had moved into her apartment, she was down on the driveway with several other tenants celebrating Heather Coburn’s husband’s birthday when she heard a commotion coming from the back of the apartments. When Rhoads looked at the men standing there and said, “ ‘Maybe one of you should go and see what’s going on[,]’ ” one of the men responded, “ ‘No need. Here comes [Holland].’ ” Holland got into his car, “peeled” out of the driveway, then stopped in front of the group. He was angry at L. R. and he said that he had to get out of there because he wanted to “ ‘stab that fucking cunt.’ ”
The next day, Wednesday the 29th, Rhoads was driving home in her car when she received a phone call from Coburn. After talking to Coburn, Rhoads pulled her car to the side of the road and, from a pay phone, made an anonymous call to the police reporting an incident of domestic violence. Rhoads wanted the call to be anonymous because she was “scared of [Holland].” After making the call, Rhoads got back in her car and drove home. A short time later, two unmarked police cars pulled up and parked in L. R.’s driveway. Two officers then went into L. R.’s apartment, where they stayed for what seemed like “a long time.”
After returning to her apartment, L. R. heard what sounded like someone breaking down her door. She decided to go out and investigate because she was frightened. Two police officers were standing in the doorway and one of them said, “ ‘Ma’am, are you okay‌’ ” When L. R. told the officers that she was “ ‘good,’ ” they said, “ ‘No, you’re not.’ [¶] . . . [¶] . . . ‘Did you look at yourself‌’ ” L. R. looked in a mirror and began to cry. It was then that she decided to tell the officers what had been happening. After she spoke with them for some time, the officers transported L. R. to the forensic hospital in Northridge where she was examined by a nurse practitioner.
Sandra Wilkinson is a sexual assault nurse examiner at Northridge Hospital. Such a nurse specializes in women’s health and, at times, the examination of physically or sexually abused individuals brought to the hospital by police officers or sheriffs deputies. The nurse performs a physical examination and interviews the patient, then concludes whether what the individual told the nurse is “really consistent with what [he or she is] seeing.” In addition, the nurse does “evidence collection.” “[W]hen there’s a possibility of somebody’s body fluids on [the patient’s] body, [the nurse] . . . swabs . . . that area.” The swabs are then sealed and sent to a crime lab for evidence of DNA.
On Wednesday, July 29, 2009, Wilkinson examined L. R. During the examination, Wilkinson found injuries on L. R.’s face and neck: she had a bruise above her right lip, a bruise on her temple and “finger mark type” bruises on her neck. L. R. also had “multiple linear bruises” on her wrists, just above a “sticky-type” residue of tape, and bruises on her knees. L. R.’s vagina was red and tender, which was consistent with what L. R. had told Wilkinson. Wilkinson swabbed the left side of L. R.’s temple, face, neck, ear, genitals and right wrist.
Throughout the investigation, police officers continuously attempted to contact Holland on L. R.’s cell phone. On July 30, 2009, the day after she had been contacted by police, one of L. R.’s neighbors, Ms. Rhoads, came to L. R.’s apartment with her phone. Rhoads told L. R. that Holland had been calling her on Rhoads’s phone.
When the officers brought L. R. home, Rhoads offered to let her stay at her house. L. R. spent part of the night at Rhoads’s apartment, then decided to go home.
Elizabeth Cole’s apartment shared a bedroom wall with L. R.’s bedroom wall. In November 2008, Cole’s work schedule changed. She arrived home earlier and was at home for more hours than she had been in the past. She began to hear “[h]eated, verbal exchanges and physical altercations” come from L. R.’s bedroom. She recognized Holland’s voice. It was “heated, very angry, [and] full of obscenities. It was scary [and] [v]ery loud.” L. R.’s voice was “much more on the defensive, a lot of no[’s] and don’ts and please stops.” On one occasion, Cole heard L. R. scream “ ‘You’ve made me bleed. I’m bleeding now.’ ”
After one of Holland’s and L. R.’s altercations, Cole saw L. R. in the apartment complex. L. R. told Cole that if she “ever heard anything, not to notify anyone because she was afraid of what might happen.”
Paul Malewitz lived with Elizabeth Cole. He and Cole had lived in the apartment next door to Holland and L. R. since June of 2008. According to Malewitz, Holland and L. R. had “very loud fights, and after the fights, . . . you wouldn’t see [L. R.] for a long time.” Malewitz indicated that, at times, Holland and L. R. would have “big” fights. During those, “you would hear . . . loud sounds, slamming. It sounded like just heavy meat hitting our back walls, [there was] whimpering, crying [and] pleading [and it was] just really . . . shaking our apartment, [it was] violent.” In addition, the nature of the fighting “seemed to pick up over time. The fights seemed to sustain themselves for longer. The noises got louder. The pleadings definitely got deeper and more like . . . [he] couldn’t make out distinct words, but . . . [one] can hear fear in the human voice . . . .” The pleading sounded as though it was coming from L. R. As a result of hearing L. R.’s “voice like that,” Malewitz was “concerned for her safety.”
After one of these altercations, L. R. would usually be gone for a little while. She would stay in her apartment for three or four days. Then, “[w]hen [one] first saw her, she looked a little worse for the wear, maybe like she had fallen down steps, had some bruises, [things] like that.”
With regard to previous incidents of violence involving Holland, L. R. testified that one occurred on January 14, 2006. On Fridays, L. R.’s ex-husband would drop off her “allowance.” Holland wanted it. L. R. had hidden the money and Holland wanted to know where it was. He “ripp[ed] through the house trying to find it.” He “[k]nocked over vases, a planter [and] whacked [L. R.] on the head screaming [and] yelling, ‘Where’s . . . the fucking money‌’ ” L. R. decided to leave the apartment. However, while she was walking down the hallway, Holland tackled her, grabbed her purse, dumped it and took what money she had, her cell phone and her keys, which had a “very bright pink lanyard chain attached to them.” He then hit L. R. in the forehead and “took off.”
L. R. left the apartment, went to the front office and called the police. An hour or so later, when she and a police officer returned to her apartment, she could open the door only a half inch. She later discovered that the door had been barricaded with a mattress.
In January of 2007, L. R. had made plans to go to Las Vegas for a furniture show with her 65-year-old friend, Jan Graf. Graf “had an inside thing for a cheap ticket to Las Vegas, so [L. R.] gave her cash” to get one. When Holland heard that L. R. had given cash to Graf, he told her to get the money back. Holland grabbed L. R. between the elbow and the shoulder and “dragged” her to Graf’s apartment.
When Graf did not answer her door, Holland took L. R. back to their apartment. After a little while, Holland told L. R. that she should go looking for Graf because he wanted the money and L. R. was not going to go to Las Vegas. When L. R. still could not find Graf, Holland “screamed and shouted and knocked over half of [her] good things [then] . . . left the apartment” by jumping over the back wall.
Holland eventually found Graf and she paid him with her own money. After Holland left the area, Graf called the police, who came and took a report. They took a photograph of L. R., whose clothes were “ripped” and who had red marks on her arms and neck.
Pasadena Police Detective Schuyler Sandeen “deal[s] with sexual assaults of adult victims.” The detective was assigned to Holland’s case on July 30, 2009, the day after Holland was arrested. Upon reviewing the matter, Sandeen found that the arresting officers had “done a sufficient job for prosecution of the case.” They had “interviewed all the critical witnesses that were apparent, they had collected the evidence at the scene, and they had . . . done a pretext phone call and followed up with the arrest of the suspect in the case.” All of the information gathered was then taken to the district attorney, who determined what charges should be filed.
Once the district attorney determined that charges should be filed against Holland, Sandeen sent the sexual assault kit and the victim’s clothing to the Los Angeles County Crime Lab for testing. Vaginal samples, anal samples, external genital samples and samples taken from L. R.’s pajama bottoms all came back negative. There was no evidence of Holland’s DNA. However, swabs taken from L. R.’s face, neck and wrist were positive. They each bore evidence of Holland’s DNA. There were a number of items, such as sheets and towels, which Sandeen chose not to send to the lab. Since DNA was found on the swabs, it was Sandeen’s opinion that no useful evidence would be found on the sheets.
Psychologist, Dr. Sandra Baca, has been studying the “dynamics involved in intimate partner battering” since 1986. Intimate partner battering occurs when couples abuse each other. “It could . . . be physical abuse, emotional abuse, sexual abuse, [or] economic abuse. And the abuse is intended to get the other person to do what you want them to do.”
According to Dr. Baca, it is difficult for victims of domestic violence to come forward. “There’s always the fear of being misunderstood or judged. . . . [A]nd it’s humiliating. It’s difficult for them to . . . talk about intimate details that have occurred.” A battered woman will not usually tell other people that she is being abused. “ [A]s a rule, [she] will not disclose that to anybody.” She may “[n]ot go outside[,] . . . [she may] put heavy make-up on, [or] wear some sunglasses [or] . . . long sleeves, and try to avoid people.” Fear also plays a part in a battered woman’s actions. “[I]f the person has been threatened or intimidated, and the person has a history of being abused in the past, the woman then knows what this person is capable of doing.” The fear that the abuser will act on his threats is “foremost in [the victim’s] mind.”
Dr. Baca also indicated that, at times, the situation changes the abused woman’s perception of herself. “[H]er reality becomes the abuser’s.” “[I]f the abuser is constantly telling her ‘it’s your fault, it’s your fault that this is wrong. If you didn’t do this, this wouldn’t happen[.]’ She eventually begins to believe that. And [when] she believes that, . . . she begins to [have] self-doubt[s].” She feels that, “ ‘if I wasn’t the way that I am,’ or ‘if I did things differently,’ this wouldn’t happen.”
Richon Tate is a senior criminalist at the Los Angeles County Sheriff’s Department Crime Lab in the Forensic Biology Section. On August 13, 2009, a sexual assault kit from L. R., which included some DNA samples, was booked into the Lab.
On October 26, 2009, Tate went down to the evidence control section of the laboratory and “gained custody” of the assault kit. On October 27, he began his analysis of the kit. Tate opened the manila envelope which contained all of the items from the medical evaluation that the examining nurse had performed. This generally includes samples “collected from various body orifices, or areas, or from the clothing of the victim.” L. R.’s kit included “a neck sample, a wrist sample, an external genital sample, an anus sample, a vaginal sample[,] . . . a vaginal lavage, a urine sample, a face sample, and a blood reference sample.” Once he had an inventory of all the samples and had read the medical report indicating “what the victim said happened,” Tate looked at the samples to see whether they contained any biological fluids. He first looked at various samples to see if they contained sperm cells. When he found that they did not, he “performed a presumptive chemical test for the presence of [a] protein that’s found in semen.” He found the protein on L. R.’s face, wrist and neck samples. Tate then forwarded these positive samples to another part of the lab for DNA analysis.
Christopher Lee is a forensic DNA analyst at the Los Angeles County Sheriff’s Department Crime Lab. On November 17, 2009, Lee received from Tate “a face sample, a neck sample, [and] a wrist sample” and a reference from L. R. Later, on January 13, 2010, Lee received a “reference sample” from Marc Holland.
In this instance, “the face sample, the neck, and the wrist sample had enough DNA detected that [they] could go forward for DNA analysis.” In addition, Lee was able to develop a “profile” from the face sample. The “profile” was consistent with that of Marc Holland.
b. Defense evidence.
Patrol Officer Robert Dubois works for the Pasadena Police Department. At approximately 1:00 p.m. on Wednesday, July 29, 2009, Dubois and his partner, Officer Preston, were directed to report to Heather Coburn’s apartment. Coburn sent them to a nearby apartment at 1105 North Los Robles, where L. R. lived. The call which Dubois and his partner answered involved a “domestic disturbance” and, when L. R. answered the door, Dubois asked her what was going on. The officers entered the apartment and began to interview L. R. She answered their questions in a “logical and calm manner.” She was not hysterical or so badly shaken that she could not respond to the officers’ inquiries and she provided them with significant details surrounding the incident. L. R. first told the officers about Monday, July 27. She told them that, after she had refused to have sex with him, Holland immediately returned to her bedroom and bound her legs and wrists with masking tape, then sexually assaulted her. He then left the room, returned three to five minutes later and again sexually assaulted her. Holland left the room after the masking tape had been cut off.
L. R. indicated that, after Holland left, she went into the bathroom, wiped herself with a tissue and threw it in the trash can. When the officers were in L. R.’s apartment, they went into the bathroom. Dubois, however, could not remember if there was tissue in the trash can.
After she cleaned herself, L. R. went back to bed. She told Officer Dubois that approximately 20 to 30 minutes later, she heard the floor creaking and Holland enter the bedroom. When she asked him what he was doing there, Holland apparently stated he was “going to cum all over her.” L. R. told the officers that Holland was naked, had an erect penis and was masturbating. However, she did not tell Dubois that, after she had gone back to bed, “she felt something hot on her neck.”
L. R. went into the bathroom and showed Dubois the towel she had used to clean her face. Dubois had then instructed an evidence technician to collect the purple towel, which was marked “evidence No. 5.” In addition to the towel, evidence technicians collected a purple pillow case. Defense counsel requested that these items be marked C-1 and C-2.
With regard to July 28, 2009, Dubois stated that L. R. had told Dubois that, at approximately 7:30 that evening, she was in her room when Holland walked in “and said some words to her and struck her with an open left palm on the right side of her face.”
Officer Dubois did not remember that L. R. told him about several incidents which had occurred over the previous few days. He did remember her telling him that, as she was walking down the hall Holland pushed her, causing her to land on her hands, knees and elbows. From his report, the officer read that L. R. then rolled onto her back. “Mr. Holland [then] put his hand around [her] mouth and . . . choked her with his right hand for approximately seven seconds.” The officer’s report also indicated that “[t]here were no visible injuries to [L. R.’s] head from where [she] claimed Holland had hit her.”
Hayle Holland is Marc Holland’s sister. On July 29, 2009, she received a phone call from Holland during which he seemed quite jovial. He did not say anything about Hayle[4] needing to come to Pasadena to get his things because he was going to jail.
According to Hayle, her brother had dated L. R. for between five and seven years. During that time, Hayle had met L. R. and friends and acquaintances of L. R.’s. After meeting L. R. and her acquaintances, Hayle had come to the conclusion that she is not particularly truthful. As one example, Hayle indicated that when she first met L. R., she asked L. R. how she had met Holland. L. R. stated that she was a drug counselor for the State of California and that Holland had been one of her clients. However, she asked Hayle not to say anything about how she and Holland had met, because she could “get in trouble for it.” Hayle later determined that L. R. was never a drug counselor.
Carrie Richards Fee had known Holland for three or four years. She had gotten to know Holland and L. R. through her boyfriend. Fee recounted one occasion when she and her boyfriend went to Pasadena to visit Holland and L. R. When they knocked on the door to the apartment, L. R. answered “backwards with her hands tied behind her back.” She was laughing and when Fee asked, “ ‘What are you guys doing‌’ ” L. R. winked and said, “ ‘Oh, you know.’ ” L. R. had been wearing a long T-shirt. Fee could not remember what else she had been wearing.
On another occasion, at Fee’s boyfriend’s Tommy’s house, Fee, Tommy, L. R. and Holland were playing a “truth or dare” “love board” game. “[O]ne of the dares was to allow somebody to restrain you while standing in the middle of the room on a chair. . . . That was what [L. R.] was dared to do, and she did” it. She was a “willing participant.” On another occasion at Tommy’s house, Fee, Tommy, Holland and L. R. went into Tommy’s bedroom where he had a “sex swing.” L. R. was the first person to try it. Although she was fully clothed and just “joking around,” L. R. asked Holland and Fee to strap her into the swing.
During her examination of L. R., Sandra Wilkinson took a number of photographs. For example, there are photographs of L. R.’s wrists. One, designated A1, shows “multiple linear bruises.” The second, designated A2, shows “residue of tape.” There is a photograph of a bruise on the back of L. R.’s arm and a photograph depicting another bruise on one of L. R.’s wrists, near a tattoo on her forearm. A photograph of one of L. R.’s arms shows the residue of tape. However, the tape residue is “very vague.” It looks like a “smudge.” A photograph of L. R.’s right knee shows two bruises. A photograph of L. R.’s left knee shows a bruise, residue, a “couple of healing scratches [and] some stretch marks.” On that photograph, too, the tape residue “looks like a smudge.” A photograph of part of L. R.’s face showed a bruise above the right side of her mouth and a bruise on her right temple. Another photograph shows three bruises on the right side of L. R.’s neck. Photographs of the left side and front of L. R.’s neck showed nothing of significance.
In addition to the photographs of L. R.’s injuries, Wilkinson did a genital examination. During the examination, Wilkinson took swabs of the vagina and cervix. While taking the swabs, she found no signs of injury in the vaginal canal.
As to the age of the bruises, Wilkinson indicated that “the only thing you can say . . . is that if it’s yellowing, then it’s at least 24 hours old. But you can’t say, i[t] i[s] five days old. Or if it’s a dark bruise, i[t] i[s] less than 24 hours old. [¶] So[,] except for the yellowing as to being more than 24 hours, that’s the only thing you can tell.”
3. Rebuttal.
Brian Forrester is a field technician for a geotechnical engineering firm. He lives in an apartment in the same building as L. R. and Holland. He has lived there for just over one year and sees L. R. “[p]retty much on a daily basis.” She has a reputation as an honest person.
Becky Lenh also lives in the Pasadena apartment building. She has lived there for approximately one year and, during that time, has gotten to know L. R. She trusts L. R. L. R. has a reputation for honesty and is known to be respectful and courteous. “And she would give her shirt off her back for anybody to help them and take care of them.”
2. Procedural history.
Following a preliminary hearing, on August 26, 2010 an amended complaint was filed alleging that Holland committed forcible rape (§ 261, subd. (a)(2)) (count 1), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 2), and two counts of corporal injury to a cohabitant (§ 273.5, subd. (a)) (counts 4 & 5).
Trial was by jury. After the jury heard all of the evidence and most of the instructions, the trial court indicated that it had one more instruction to give. The court then stated: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose the names of two prosecution witnesses within the legal time period. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
At approximately 10:48 a.m. on September 14, 2010, the jury submitted to the trial court the following request: “We, the jury in the above-entitled action, request the following: [¶] Read back of [L. R.’s] testimony regarding pen[e]tration of finger [and] penis.” Later that afternoon, at approximately 1:30 p.m., with all members of the jury, the bailiff and both counsel present, the court reporter read the requested testimony to the jury.
At approximately 1:53 p.m. that same day, the jury sent a note to the trial court indicating: “We have verdicts for counts 1, 2, 4, 5. Page 17 of the instructions refers to counts 3 and 4. We are under the impression of counts 1 through 4. [¶] Also, need new verdict copies for counts 1 and 2. Accidentally signed both. Sorry.” In response, the trial court wrote: “The instructions [on page 17] should have said counts 4 [and] 5. There is no count 3.”
The following colloquy then occurred: “[The Court:] And that was at 2:21. Did you receive that‌ [¶] Juror No. 2: Yes. [¶] The Court: And did you receive your clean verdict forms for counts 1 and 2‌ [¶] Juror No: 2 Yes, Ma’am. [¶] The Court: And did you X through the ones that had been signed in error‌ [¶] Juror No. 2: Yes, Ma’am. [¶] The Court: And you have unanimous verdicts on each of the counts‌ [¶] Juror No. 2: Yes, Ma’am.”
The court clerk then read the verdicts. The jury found Holland guilty of forcible rape in violation of section 261, subdivision (a)(2) as charged in count 1 of the information. In addition, it found the allegation that Holland engaged in the tying and binding of the victim pursuant to section 667.61, subdivision (b) to be true. With regard to count 2, sexual penetration by a foreign object in violation of section 289, subdivision (a)(1), the jury found Holland guilty. It further found to be true the allegation that during the offense he engaged in the tying and binding of the victim pursuant to section 667.61, subdivision (b). As to count 4, the jury found that on or about July 28, 2009, Holland did willfully and unlawfully inflict corporal injury resulting in a traumatic condition upon L. R., a felony in violation of section 273.5, subdivision (a). Finally, as charged in count 5, the jury found that on July 29, 2009, Holland willfully and unlawfully inflicted corporal injury resulting in a traumatic condition upon L. R., a felony, in violation of section 273.5, subdivision (a).
After the jury was polled, the trial court informed Holland that he had a right to have a jury trial with regard to his alleged prior convictions. However, after waiving his right to a jury, Holland agreed to a court trial. The trial court took judicial notice of court files showing Holland had suffered convictions for corporal injury to a spouse or cohabitant, the victim being L. R., in violation of section 273.5, subdivision (a) on January 14, 2006 and January 23, 2007. The court then noted that the files were consistent with L. R.’s testimony and the testimony of two Burbank police officers. After reviewing this evidence, the trial court found beyond a reasonable doubt that, as alleged with regard to counts 4 and 5 in the current matter, Holland had suffered two prior convictions.
L. R. was present in court when Holland was sentenced on October 20, 2010. With regard to count 1, the forcible rape in violation of section 261, subdivision (a)(2) and “the allegation [that he engaged in the tying and binding of the victim ] pursuant to Penal Code section 667.61, [subdivision] (b),” the trial court imposed a term of 15 years to life. The trial court then commented: “And there’ s a discussion presented as to whether or not the court should give full consecutive terms or whether the court should do one-third the midterm on the [remaining] counts. And the ‘separate occasions’ language is what is guiding the court. [¶] The court does not find it to be separate occasions based on the testimony that was presented. And so the court will select the consecutive one-third the midterm. And so one-third the midterm on count 2” is “an additional two years.” With regard to counts 4 and 5, Holland’s convictions of inflicting corporal injury to a spouse or cohabitant, the trial court chose to impose consecutive sentences of one-third the mid-term, or one year four months as to each count. In total, Holland was sentenced to 15 years to life, plus 4 years 8 months in prison.
Holland was ordered to pay a $120 court security assessment (§ 1465.8, subd. (a)(1)), a $120 criminal conviction assessment (Gov. Code, § 70373), an $800 restitution fine (§ 1202.4, subd. (b)) and a stayed $800 probation revocation restitution fine (§ 1202.45). He was to provide a DNA sample and a fingerprint sample and, when released on parole, to register as a sex offender.
Holland filed a timely notice of appeal on October 20, 2010.
This court appointed counsel to represent Holland on appeal on February 3, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 22, 2011, the clerk of this court advised Holland to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.


REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





KITCHING, J.


We concur:


KLEIN, P. J.





CROSKEY, J.


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