P. v. Jones

Filed 12/22/09 P. v. Jones CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.

Law Offices of Tabone and Derek L. Tabone, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Christopher Jones challenges his convictions for committing lewd acts on children under the age of 14, and battery. We affirm.

Defendants contentions are numerous but meritless. The charges were properly joined because they are connected crimes of the same class. The lewd act convictions are sufficiently supported by victim testimony that defendant orchestrated a strip poker game with nine, 11, and 12-year-old boys. Expert testimony of Child Sexual Assault Accommodation Syndrome (CSAAS) and victim photographs were permissibly admitted. Evidence of the victims prior sexual activity was permissibly excluded. The court properly instructed the jury on adoptive admissions and constructive touching; it properly declined to instruct the jury on accomplice testimony and battery as a lesser included offense to three lewd act counts. The court permissibly remanded defendant into custody during the trial due to his misconduct and correctly declined to strike the multiple victim allegations. And defendant was not prejudiced by being bound over on three counts for which he was not convicted, or because the jurors failed to return an extra set of unused verdict forms.

FACTS

Factual Allegations

The charges against defendant arise from allegations involving different children over several years. These allegations are presented here in rough chronological order, not in the numerical order of the counts. Defendant was convicted of offenses arising from some incidents, but acquitted of offenses arising from others.

J.B. Defendant taught Sunday school at a Yorba Linda church. He befriended the family of two of his Sunday school students; J.B. (age 7) and Z.B. (age 6). After church one day in 2001, defendant drove the two boys to a restaurant and the park, where J.B. got mud on his clothes. Defendant took the boys to their house so J.B. could change his clothes. Defendant and boys went to J.B.s room, and J.B. got undressed. While J.B. was naked, defendant put him over his lap and hit him on his buttocks.

A.L. and T.S. Defendant befriended A.L. (age 10) and T.S. (age 11), who were staying with his neighbors during the summer of 2003. The two boys and some friends visited defendant to watch boxing. Defendant had the boys bet on each round of the fight, with the losers required to run around in their underwear. Two of the friends stripped down to their underwear. A.L. started to pull down his pants, but stopped halfway because it felt kind of weird.

Defendant would take A.L. for rides in the limousine he drove for a living. One time, defendant told A.L. to pull down his pants. A.L. pulled his pants and underwear down to his knees, exposing his penis. Defendant looked down at A.L.s waist area and placed his hand on A.L.s thigh. During another limousine ride, defendant played truth or dare with A.L. and T.S. Defendant dared A.L. to show him his underwear, which A.L. did.

A.L. and T.S. once ran into defendant at a county fair, where the boys and some friends had watched a hypnotist. Defendant later claimed he could hypnotize the boys. He tried to hypnotize A.L. into taking off his clothes. A.L. stripped down until he was naked.

A.L. and some friends visited defendant, finding pornographic magazines in his bedroom. They looked at the magazines while defendant watched. Another time, A.L. and T.S. looked at pornographic magazines in defendants bedroom while he showered. A.L. and T.S. also visited defendant at his parents home, where defendant showed them pornographic videos and pictures of naked women on the computer.

Alex M., Anthony M., and E.G. Defendant lived with a friend and his two sons, Alex M. (age 11) and Anthony M. (age 9). Defendant would get the boys ready for school while their father was at work. The friend dated and eventually married a woman who had a son, E.G. (age 12). One time, defendant showed pornographic pictures on the computer to Alex M. Another time, defendant woke up Alex M. and asked him, Would you sleep with me for a couple hours. Ill let you play video games on the computer. Alex M. went to sleep next to defendant in defendants bed. Defendant also took naked pictures of Anthony M. and E.G.

One day in 2004, defendant drove the three boys to his parents home to play in the pool and watch the movie Gladiator. Defendant told them before they watched the movie, they had to play strip poker. Defendant produced a deck of cards and explained the game to the boys. He dealt the cards, told the boys who won or lost each hand, and directed the losers to take off some clothes. The boys did as instructed. Alex M. remembered he and Anthony M. stripped down to their underwear. Anthony M. remembered only himself getting naked. E.G. remembered the other two boys stripped him naked and took off their own shirts. During the game, E.G. noticed defendants dick was getting larger and you could see it through his pants.

Procedural History

In case No. 05HF1675, defendant was charged with two counts of committing a lewd act on a child under the age of 14 (Pen. Code, 288, subd. (a))[1] and one count of exhibiting harmful matter to a minor ( 288.2, subd. (b)) in 2003.

In case No. 07HF1762, defendant was initially charged with six counts. After the preliminary hearing, the People filed an amended complaint charging defendant with three counts of committing a lewd act on a child under the age of 14 in 2004 and one count of committing a lewd act on a child under the age of 14 in 2001. ( 288, subd. (a).)

The court granted the Peoples motion to consolidate the two cases. The People then filed an amended consolidated complaint charging defendant with the following offenses: count 1, committing a lewd act on a child under the age of 14 (A.L. in the limousine); count 2, committing a lewd act on a child under the age of 14 (A.L. during hypnosis); count 3, exhibiting harmful matter to a minor (T.S.); count 4, committing a lewd act on a child under the age of 14 (E.G. during strip poker); count 5, committing a lewd act on a child under the age of 14 (Alex M. during strip poker); count 6, committing a lewd act on a child under the age of 14 (Anthony M. during strip poker); and count 7, committing a lewd act on a child under the age of 14 (J.B.) It also alleged defendant committed the lewd acts against multiple victims. ( 1203.066, subd. (a)(7).)

The jury convicted defendant on counts 4, 5, and 6, the lewd acts arising from the strip poker game. It also convicted defendant on count 7 of the lesser included offense of battery arising from spanking J.B. It found true the multiple victim allegation. It acquitted defendant of count 1, the lewd act involving A.L. in the limousine, and count 3, exhibiting harmful matter to T.S. It failed to reach a verdict on count 2, the lewd act arising from hypnosis with A.L. The court declared a mistrial as to that count, and dismissed it at the prosecutors request. The court sentenced defendant to three concurrent low terms of three years in state prison for the lewd act counts, and 65 days in county jail for the battery count.

DISCUSSION

The Charges Were Properly Joined

Defendant contends the two cases were improperly consolidated over his objection because the offenses charged in the two complaints were not of the same class.

The court may join two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses. ( 954.) The phrase regarding offenses connected together in their commission under section 954 includes offenses that share a common element, such as . . . commission of several crimes against male juveniles. [Citation.] Such offenses are deemed to be connected together even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims. [Citation.] [] Section 954 also permits joinder of offenses of the same class of crimes. Offenses are of the same class when they possess common attributes, such as lewd conduct toward young female minors. (People v. Leney (1989) 213 Cal.App.3d 265, 269 (Leney).) Whether offenses are connected together in their commission or of the same class, and thus subject to joinder, are questions of law reviewed independently. (People v. Alvarez (1996) 14 Cal.4th 155, 187-188.)

The charged offenses against defendant were subject to joinder. In case No. 05HF1675, defendant was charged with committing lewd acts on A.L. and exhibiting harmful matter to T.S. In case No. 07HF1762, before consolidation, defendant was charged with committing lewd acts on E.G., Alex M., Anthony M., and J.B. Each count alleged defendant committed a sexually related offense against a boy under the age of 14. The offenses were thus connected together in their commission and of the same class . . . . ( 954; see also Leney, supra, 213 Cal.App.3d at p. 269 [several crimes against male juveniles are connected; instances of lewd conduct toward young female minors are of the same class]; People v. Poon (1981) 125 Cal.App.3d 55, 69 [The offenses joined here share numerous common elements; the most significant being sexual motivation and young girl victims]; People v. Kemp (1961) 55 Cal.2d 458, 476 [consolidation proper because [i]n each crime the obvious motive was satisfaction of appellants sexual desires].)

Nonetheless, defendant contends consolidation was improper because the evidence offered to prove the offenses charged in case No. 05HF1675 was inadmissible to prove the offenses initially charged in case No. 07HF1762.[2]

Because consolidation ordinarily promotes efficiency, the law prefers it. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) When the requirements for joinder [are] satisfied, defendant can predicate error only on a clear showing of potential prejudice. (Ibid.) And when evidence of each set of crimes would have been admissible [to prove the other] any inference of prejudice [is] dispelled. (Ibid.) Thus, [i]f the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial courts refusal to sever properly joined charges. (People v. Soper (2009) 45 Cal.4th 759, 774-775 (Soper).)[3]

The court expressly found the evidence in each case would be cross-admissible pursuant to Evidence Code section 1108, subdivision (a). This statute provides, In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352. (Evid. Code,  1108, subdivision (a).) Defendant contends the evidence of the alleged offenses against A.L. and T.S. was unduly prejudicial and thus inadmissible pursuant to Evidence Code section 352. In determining whether to admit evidence of a prior sexual offense pursuant to that statute, trial judges must consider such factors as [the prior sexual offenses] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (People v Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).)

The court did not abuse its discretion by finding the evidence of the alleged offenses against A.L. and T.S. would be admissible in the consolidated case. The alleged offenses involving A.L. and T.S. were similar in nature to the offenses involving E.G., Alex M., Anthony M., and J.B., as already noted. The offenses were separated by three years or less, and thus not overly remote. And different witnesses provided the evidence of the alleged offenses. (Falsetta, supra, 21 Cal.4th at p. 917 [noting the probative value of other crimes evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense].) Some uncertainty surrounded the commission of the alleged offenses against A.L. and T.S. defendant was acquitted of those counts. On the other hand, those acquittals showed the jury was able to segregate each offense and so was not confused, misled, or distracted by the evidence. (Ibid.)

In sum, the court did not abuse its discretion by finding the evidence of the alleged offenses in each case was cross-admissible. Accordingly, it did not abuse its discretion by consolidating the cases.

The Lewd Act Convictions are Supported by Substantial Evidence

Defendant contends insufficient evidence supported the lewd act convictions because no substantial evidence showed he touched the victims or had the specific intent to gratify his sexual desires. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) We view the evidence in the light most favorable to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . . ( 288, subd. (a).)

[S]ection 288 was enacted to provide children with special protection from sexual exploitation. [Citation.] The statute recognizes that children are uniquely susceptible to such abuse as a result of their dependence upon adults, smaller size, and relative naivet. [Citation.] The statute also assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire. For this reason, courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the gist of the offense has always been the defendants intent to sexually exploit a child, not the nature of the offending act. (People v. Martinez (1995) 11 Cal.4th 434, 443-444.)

In People v. Austin (1980) 111 Cal.App.3d 110, 114-115 (Austin), the court held a defendant commits a lewd act upon a childs body when the defendant cause[s] the child to do [a lewd] touching upon or with itself. (Id. at p. 115.) There the defendant showed children a knife, asked them if they want[ed] to make a couple bucks, ordered a girl to pull down her pants, and paid her a dollar. (Id. at p. 112.) Relying on the common law rule of agency, Austin concluded the defendant was responsible for the touching and removal of the childs pants as surely as if he had done it himself. (Id. at p. 115.)

The doctrine was later applied where a defendant, acting as a photographer, instructed or posed the children in such manner that their hands were caused to be placed upon their own genitalia. (People v. Meacham (1984) 152 Cal.App.3d 142, 154 (Meacham), abrogated on another ground in People v. Brown (1994) 8 Cal.4th 746, 756-757, 763.) Meacham h[e]ld the childrens touching of their own genitalia at the instigation of appellant was a constructive touching by appellant himself. (Meacham, at p.153.) The California Supreme Court has impliedly endorsed the constructive touching doctrine. (See People v. Memro (1995) 11 Cal.4th 786, 872 [The disrobing [of the victim] while alive, actual or constructive . . . establishes a violation of section 288]; People v. Mickle (1991) 54 Cal.3d 140, 176 [the actual or constructive disrobing of a child by the accused . . . , [w]here committed for a sexually exploitative purpose . . . is presumptively harmful and prohibited by section 288[, subd.] (a)].)

Ample evidence showed defendant constructively touched the boys during the strip poker game. Defendant instigated the strip poker game, coerced them into playing by promising them they could watch a movie, and directed them to undress during the game. (Cf. Austin, supra, 111 Cal.App.3d at pp. 112, 114 [the defendant caused the victim to touch herself, in part by offering her money]; Meacham, supra, 152 Cal.App.3d at p. 151 [the defendant told [the victim] to remove her clothing [and] gave [her] cookies].) This instigation and direction made defendant responsible for the touching and removal of the [clothes] as surely as if he had done it himself. (Austin, at p. 115; accord Meacham, at p. 154.)

Substantial evidence also shows defendant orchestrated the strip poker game with the specific intent to gratify his sexual desires. The requisite intent may be found from surrounding circumstances. (Meacham, supra, 152 Cal.App.3d at p. 156.) Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victims cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.)

The circumstances here show defendants sexual intent. Defendant had engaged in other lewd conduct with the boys taking naked pictures of them, showing pornography to Alex M., and getting Alex M. to sleep next to him. He had the boys gamble not for quarters or matchsticks, but for the right to remain dressed. He drove the boys to his parents house, reasonably suggesting he was attempting to avoid detection. He offered the boys the reward of watching a gladiator movie if they played strip poker. And E.G. saw defendant get an erection during the game. This is ample evidence of defendants sexual intent. (See In re Jerry M., supra, 59 Cal.App.4th at p. 299; see also In re Paul C. (1990) 221 Cal.App.3d 43, 54 [erection shows sexual intent].)

The Court Committed No Reversible Error in Its Evidentiary Rulings

Defendant contends the court made three evidentiary errors. The purported errors are neither abuses of discretion nor prejudicial.

First, the court permissibly admitted expert testimony on CSAAS. The prosecution offered the testimony of psychologist Veronica Thomas over a defense objection. She testified CSAAS is a group of component characteristics of clients in treatment that have been molested by somebody they know. The components include a duty of secrecy, a feeling of helplessness, a rationalization called entrapment and accommodation, the eventual disclosure, and an effort at recantation. The components of CSAAS can explain how children who have been molested by somebody that they know can give delayed and discrepant responses about what happened.

CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [] Identifying a myth or misconception has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victims credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) The prosecution may offer CSAAS testimony in its case-in-chief whenever the victims testimony may raise an obvious question . . . in the minds of the jurors, such as why the molestation was not immediately reported if it had really occurred or why [the victim] went back to [the defendants] home a second time after the first molestation. (Id. at p. 1745.)

The court did not abuse its discretion by admitting the CSAAS testimony here. The victims testimony raised questions about why they delayed in reporting the alleged lewd acts. A.L. did not report defendants alleged acts until his mother pressed him about defendant a year later. T.S. testified he did not mention the alleged acts until A.L. reported them. Anthony M. stated he did not report the strip poker game to his father for a week; his father testified the boys told him about the game after a couple days. These reporting delays justified the courts decision to allow the CSAAS evidence.

Moreover, the court appropriately admonished the jury concerning the CSAAS testimony. It instructed the jury that the testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [] You may consider this evidence only in deciding whether or not any of the alleged victim[s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of the alleged victims testimony. So, this evidence is being admitted for that limited purpose only. [] You may consider that evidence only for that limited purpose and no other. (Cf. People v.Patino, supra, 26 Cal.App.4th at p. 1745 [court handled the matter carefully and correctly by giving similar admonishment].) The jury is presumed to have followed this instruction. (See People v. Avila (2006) 38 Cal.4th 491, 574.) Moreover, the psychologist herself testified she was not opining whether any of the alleged lewd acts actually occurred. No prejudice could have flowed from any error.

Second, the court permissibly allowed introduction of certain photographs. During various witness examinations, the prosecution marked for identification seven blowup photographs showing defendant, the victims, and the home of defendants parents. The blowup photographs were published to the jury without objection. When the prosecution moved to have them admitted into evidence, defense counsel stated, I dont have any objection to the photos. I think the blowups shouldnt be admitted, but regular-size photographs of the same thing I have no objection to. Defense counsel argued, Its one thing I dont want the jury taking into the [jury] room. I dont think its appropriate to put all around the jury room kids looking down on them. The court overruled the objection, noting once theyre published to the jury, I assume theres going to be no objection and [w]hether they go into the jury room in current form is a different question.

The court did not abuse its discretion by admitting the photographs into evidence. The jury had already seen the blowups without objection. Defendant does not contend the photographs were graphic or sensational in any way just large. (Cf. People v. Bryden (1998) 63 Cal.App.4th 159, [no error to admit blowups includ[ing] pictures of [the victims] bloated decomposing head and bloated decomposing body].) And given the state of the evidence and the benign subject matter of the photographs, any error in admitting them would be harmless. No reasonable probability exists that defendant would have obtained a better result if the photographs had been excluded. (Peoplev. Watson (1956) 46 Cal.2d 818, 836.)

Third, the court permissibly granted the prosecutions motion in limine to bar defense counsel from cross-examining the victims regarding their prior sexual conduct. Defendant violated the statutory prerequisite of making [a] written motion . . . stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. (Evid. Code, 782, subd. (a)(1).) Here, defendant did not file an affidavit or written motion as required by [Evidence Code] section 782. Consequently, he may not now complain of error. (People v. Sims (1976) 64 Cal.App.3d 544, 554.) In addition, the evidence would have been irrelevant. Defendant contends the victims past sexual conduct would have tended to show he had no sexual intent. This contention is incoherent. Whether the victims had engaged in prior sexual conduct or even welcomed defendants conduct, as he seems to suggest would not tend to show defendant lacked sexual intent.

The Court Properly Instructed the Jury

Defendant asserts four instructional errors. None have merit.

First, the court properly instructed the jury on adoptive admissions.[4] Defendant contends no evidence supported giving the instruction. But J.B.s mother testified when she confronted defendant, he apologized and stated he did not understand why he had done what he had done . . . . This is a tacit admission of the statements made in his presence, and is thus an adoptive admission. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) Even if defendants response is considered an actual admission, the instruction directs the jury not [to] consider either the statement or the defendants response for any purpose if the prerequisites are not met. Thus, if the jury found defendant made no adoptive admission, it would not have applied the instruction. (See People v.Avila, supra, 38 Cal.4th at p. 574 [jury presumed to obey instructions].)

Second, the court properly instructed the jury on constructive touching. The court instructed the jury, The touching necessary to violate Penal Code section 288[, subd.] (a) may be done by the child victim on his own person providing such touching was at the instigation of a person who had the required specific intent. Defendant contends the court wrongly used the word instigation instead of compulsion, and claims the constructive touching must be compelled by actual or threatened force. But both Austin and Meacham used the word instigation. (Austin, supra, 111 Cal.App.3d at p. 114 [stating in heading, THE TOUCHING NECESSARY TO VIOLATE . . . SECTION 288 MAY BE DONE BY THE CHILD VICTIM ON ITS OWN PERSON PROVIDING SUCH TOUCHING WAS AT THE INSTIGATION OF A PERSON WHO HAD THE REQUIRED SPECIFIC INTENT]; Meacham, supra, 152 Cal.App.3d at p. 153 [We hold the childrens touching of their own genitalia at the instigation of appellant was a constructive touching by appellant himself].) Neither case required actual or threatened force just any act that cause[s] the child to do [a lewd] touching upon or with itself. (Austin, at p. 114; accord Meacham, at p. 153 [defendant asked victims to undress, posed them, and gave one cookies].) More generally, [t]here are many situations where one is compelled, i.e., forced, to do something against ones will but the compulsion does not involve personal violence or threats of personal violence. (People v. Grant (1992) 8 Cal.App.4th 1105, 1112-1113 [discussing unlawful restraint element of sexual battery].) The constructive touching instruction correctly stated the law.

Third, the court properly declined to instruct the jury that accomplice testimony requires corroboration. (See  1111.) Defendant notes E.G. testified Alex M. and Anthony M. removed his clothes during the strip poker game, and asserts this rendered the two boys accomplices. But Alex M. was only 11 years old at the time; Anthony M. was 9 years old. It has long been settled that where a penal statute expressly outlaws conduct against minors, a minor who is a victim of the proscribed conduct is not an accomplice and the jury need not be instructed that the minors testimony requires corroboration. (People v. Tobias (2001) 25 Cal.4th 327, 334 [minor cannot be accomplice to incest].) The other boys were victims of the same lewd conduct a strip poker game and thus cannot be accomplices to that conduct as a matter of law. (Ibid.)

Finally, the court properly declined to instruct the jury on battery as a lesser included offense to the strip-poker lewd acts alleged in counts 4, 5, and 6. Authorities are split as to whether battery is a lesser included offense of committing a lewd act. (Compare People v. Santos (1990) 222 Cal.App.3d 723, 739 [battery [citation] is not a lesser included offense to the offenses charged in this case [including committing a lewd act on a child under the age of 14]. At best, battery was a lesser related offense] with People v. Thomas (2007) 146 Cal.App.4th 1278, 1293 [Like battery, lewd acts requires a touching of the victim. [Citations.] We perceive no basis to conclude that the touching can be constructive under section 288 but not under section 242. We conclude that battery is a lesser included offense of lewd acts].)

But the law is clear on another point: the court need not instruct on time-barred lesser included offenses when the defendant refuses to waive the limitations period. [W]henever . . . a court considers whether to instruct the jury on [] a lesser offense, [the court and prosecutor] should determine whether there may be a problem with the statute of limitations regarding that offense. If so, the court should elicit a waiver of the statute as a condition of the . . . giving [of] the instruction. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 376-377.) But when a defendant is given a choice whether to waive the statute of limitations on the lesser offenses included in the charged offense and knowingly cho[oses] not to do so, the court may refuse to instruct the jury on the lesser included offenses. (Spaziano v. Florida (1984) 468 U.S. 447, 457.) No reason exists for the jury [to] be tricked into believing that it has a choice of crimes for which to find the defendant guilty, if in reality there is no choice. (Id. at p. 456.)

Defendant expressly refused to waive the statute of limitations on battery for all counts except count 7 involving J.B. Battery charges arising from the 2004 strip poker game alleged in counts 4, 5, and 6 would have been time-barred by the one-year limitations period. The court had no need to instruct the jury on battery counts upon which it could not convict.

The Court Permissibly Remanded Defendant into Custody

During the trial, the court granted the prosecutions request to revoke defendants bail and remand him into custody because he spoke with a witness in the hallway and hugged her in front of the jurors. The court noted the issue of defendants misconduct had come up three or four times in this case. It remanded defendant, stating, No finding required. Penal Code section 1129 is the only finding I am making.

When a defendant who has given bail appears for trial, the Court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the court, and he must be committed and held in custody accordingly. ( 1129.) This statute has been held to be constitutional and not violative of the right to bail [citations], nor is any hearing or showing required to be made or notice given for the court to be able to exercise its discretion under the statute. (People v. Enos (1973) 34 Cal.App.3d 25, 43.) In Enos, the [trial] court apparently exercised its discretion because of defendants uncooperative conduct. (Ibid.) The Enos court stated, It seems that under the terms of the statute the trial court has broad discretion. [Citations.] In any event, defendant has not made any showing that the conduct of his trial was prejudiced by his incarceration. (Ibid.) The same is true here defendant shows neither an abuse of discretion nor prejudice.

The Court Correctly Declined to Strike the Multiple Victim Allegation

Defendant contends the court should have stricken the multiple victim allegation due to an error in the verdict form. The complaint alleged defendant committed violations of section 288 (lewd acts) against more than one victim. (See  1203.066, subd. (a)(7).) The jury returned three separate verdict forms finding defendant guilty of violating section 288 against Alex M., Anthony M., and E.G. The jury also returned a verdict form providing, We the Jury . . . find it to be TRUE that the Defendant committed these offenses on more than one victim, within the meaning of . . . Section 1203.066(a)(7). At the bottom of the verdict form, the victims were listed as A[.] L., E[.] G., ALEX M., ANTHONY M. AND J[.] B.

Defendant contends the verdict form is inadequate because it does not specify which of the five boys were the victims of defendants section 288 violations. This is sophistry. The jury found defendant guilty of violating section 288 only with respect to Alex M., Anthony M., and E.G. These verdicts, and only these verdicts, support the jurys finding on the multiple victim allegation. The superfluous references to A.L. and J.B. in the multiple victim verdict form create no ambiguity and do not require reversal.

Defendant Was Not Otherwise Prejudiced

Defendant contends the court erred at the preliminary hearing in case No. 05HF1675 by holding him over on three counts not supported by the evidence. Defendant was not convicted on any of the three counts. The jury acquitted him of the lewd act count involving A.L. in the limousine and the exhibiting harmful matter count. The court dismissed the lewd act count involving hypnosis with A.L. at the prosecutions request, after the jury hung and the court declared a mistrial. There is no adverse judgment on these counts to reverse, even if defendant is right. Thus, he failed to show any prejudice from the purported error. [I]rregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)

Defendant also contends he was prejudiced by jury misconduct. During deliberations, the jury announced it was deadlocked on all charged counts and lesser included offenses. It then informed the court, WE THE JURY, HAVE COME TO A NEW CONCLUSION REGARDING SOME OF THE CHARGED OFFENSES! MAY WE HAVE NEW VERDICT FORMS? [] (PLEASE DISREGARD THE PRIOR NOTICE). The jury returned one full set of forms reflecting their verdicts. The record does not disclose what happened to the other set, though the jury was instructed to [r]eturn any unsigned verdict form. Defendant contends this misconduct shows the jury was incapable of following any instructions and failed to issue a valid verdict.

This is not reversible error. First, defendant forfeited any error by failing to make a contemporaneous objection to the purported jury misconduct. (People v. Wisely (1990) 224 Cal.App.3d 939, 947-948.) Defendants claim of error in a new trial motion was not timely, as it deprived the court of an opportunity . . . to correct any error and mitigate any prejudice. (People v. Williams (1997) 16 Cal.4th 153, 254 [untimely objection to prosecutorial misconduct].) Second, it is not clear the jury committed any misconduct. They returned all unsigned verdict forms from the operative set of verdict forms. They failed only to return an extra set. Third, no reasonable probability of prejudice appears. Verdict forms have no significance in or of themselves the court has no duty to provide them at all. (People v. Mundt (1939) 31 Cal.App.2d 685, 688.) The jurors were polled individually as to their verdicts without irregularity. The whereabouts of a stack of duplicate paperwork casts no doubt on the verdicts.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] In his reply brief, defendant contends joinder was improper because no evidence was offered at the preliminary hearing to support counts 1 and 2 as alleged in the operative information, and so the court lacked jurisdiction to try them at all. This court will not consider new material raised for the first time in a reply brief because the opposing party is deprived of a meaningful opportunity to respond. (In re M.S. (2009)

174 Cal.App.4th 1241, 1255, fn. 6.)

[3] Defendant also complains the cases should not have been consolidated because the evidence of the alleged offenses against A.L. and T.S. in case No. 05HF1675 was weak. Cross-admissibility trumps any such concern. (Soper, supra, 45 Cal.4th at p. 775 [court considers the possible spill-over effect of the other-crimes evidence on the jury such as whether a weak case has been joined with a strong case or another weak case only if it determine[s] that evidence underlying properly joined charges would not be cross-admissible].)

[4] The court instructed the jury, If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [] 1. The statement was made to the defendant or made in his presence; [] 2. The defendant heard and understood the statement; [] 3. The defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true; [] AND [] 4. The defendant could have denied it but did not. [] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [] If you decide that any of these requirements has not been met, you must not consider either the statement or the defendants response for any purpose. (CALCRIM No. 357; see also Evid. Code,  1221.)