Filed 8/15/17 P. v. Fisher CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed with directions.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Skyy DeAnthony Fisher and his friend, Steven S., celebrated spring break in San Diego.[1] They shared a hotel room with separate beds and went bar-hopping. Returning to the room, Steven eventually fell asleep in his own bed. He awakened to find Fisher performing oral sex on him. Laboratory analysis showed "a large quantity" of Fisher's DNA on Steven's penis.

After a four-day trial, the jury returned a guilty verdict in 43 minutes, finding Fisher orally copulated an unconscious person, violating Penal Code[2] section 288a, subdivision (f).

Fisher appeals, contending: (1) the judgment is not supported by substantial evidence; (2) the court committed instructional error; (3) trial counsel rendered ineffective assistance in failing to request instructions on lesser included and related offenses; (4) the court abused its discretion in denying Fisher's requests to continue the trial; (5) the court erroneously denied his new trial motion; (6) cumulative errors rendered the trial fundamentally unfair; and (7) the abstract of judgment erroneously states he was convicted of a serious felony within the meaning of section 1192.7, subdivision (c).

The Attorney General concedes the abstract of judgment should be corrected to show Fisher's conviction is not a serious felony. We agree with that concession, reject Fisher's remaining contentions, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Fisher and Steven

In 2014 Steven was a 25-year-old college student living in Los Angeles County. Fisher was a member of the Compton School Board. Steven met Fisher through Facebook when they both commented on a mutual friend's political comment.

Steven viewed Fisher, a man who is several years older than he, as a mentor who might help him get a job. They exchanged telephone numbers and met several times to talk about politics and to socialize.

B. Spring Break in San Diego

In April 2014 Steven and Fisher decided to celebrate spring break in San Diego. They agreed to split the cost of a hotel room for a night. Steven drove.

On the way, they stopped at a liquor store, where Fisher bought some rum. They checked into a hotel, getting a room with two separate beds. Before heading out for the night, Fisher poured them each a drink. Steven also smoked some marijuana.[3]

Fisher and Steven walked to some clubs and bars, where they met some of Fisher's friends. Steven testified they were "looking at chicks walking by, doing what guys do," having drinks and dancing with women.

At about 1:30 a.m., Fisher and Steven walked back to their hotel. On the way, Steven purchased condoms at a convenience store because he planned to call a prostitute.

C. Steven and Asia

After returning to their hotel, Steven searched the internet for a prostitute while Fisher rested in his own bed. Fisher said, "You better not jack off." Steven thought this was a "weird" thing to say, and it "came out of left field." He asked Fisher if he was gay; Fisher said he was not. Steven told Fisher he would be uncomfortable sharing a room if Fisher was gay.

At about 4 a.m., Steven brought a prostitute named Asia to the room. Fisher was asleep. As Steven and Asia were having sex, Fisher woke up, got out of his bed, and walked near Steven, who pushed him away. Fisher returned to his own bed.

After about 20 minutes, Asia left. Steven smoked some marijuana. About 15 minutes later, Fisher awakened and poured himself and Steven some rum. Fisher drank his, but Steven did not drink much because he was "already high" from the marijuana and did not like rum.

D. While Steven Is Asleep, Fisher Performs Oral Sex on Him

Fisher returned to his bed, and about 20 minutes later Steven, wearing boxer shorts, got under the covers of his own bed and fell asleep. About an hour or two later, Steven awakened to see Fisher orally copulating Steven's penis. Steven saw Fisher's mouth on his penis. As soon as Fisher noticed Steven rise up, he stopped and returned to his own bed as if nothing happened.

Steven stayed in his bed for a few minutes, trying to process what had just happened. His boxer shorts were off and he could not find them anywhere. He was angry and confused. Steven gathered some of his belongings, put on clothes, and went to the hotel lobby to get his car and leave.

E. The 911 Call

Steven drove away. He had not been to San Diego before and did not know where he was going. He called his sister. Sounding frantic, fearful and crying, he told her he woke up to see Fisher "giving [him] oral sex." She told him to call 911.

Steven called 911, stating he wanted to report "an attempted rape." He said he was asleep in his hotel room and "the person that was in my room tried to, tried to rape me." He explained he was "asleep and I felt, I just felt something as I was asleep. And as I woke up I saw that he was—he was touching on me and trying to play with my penis."[4]

Steven parked and waited for police. At about 8 a.m., San Diego Police Officer Sarah Zimmerman arrived. Steven told her he was staying at a hotel with a friend, and when he woke up, Fisher was "sucking his dick." Officer Zimmerman accompanied Steven to a facility for a SART exam.[5]

F. SART Exam

Steven told the SART nurse he had sex with a female partner around 4 a.m. "and then later he went to sleep, and when he woke up there was a man performing oral sex on him." He told the nurse that because he was asleep, he was unsure what else, if anything, had happened.

The nurse took swabs from Steven's penis, scrotum, and rectum. She also performed an anal exam. The nurse found no physical injuries. She placed the swabs into an evidence envelope.

After the SART exam, Steven returned the rental car in San Diego. Steven's brother-in-law drove him home.

G. The Pretext Call

Several days later, Steven met with San Diego Police Detective Francis Bradley. In a tape-recorded interview, Steven told Detective Bradley he "woke up to [Fisher] sucking his dick." Steven said he did not consent and that he had considered Fisher a "mentor."

Initially, Steven told Detective Bradley that Asia was a "friend with benefits" he had met in Los Angeles who lived in San Diego. But after Detective Bradley turned off the tape recorder, Steven admitted that Asia was a prostitute, and he gave him Asia's telephone number.[6]

At Detective Bradley's suggestion, Steven placed a recorded "pretext" call to Fisher. In the call, Steven accused Fisher of orally copulating him while he was asleep. Initially, Fisher said he did not remember, and later in the conversation he outright denied the accusation. But after Steven threatened to "put this on Facebook if you can't own up," Fisher replied, "I'll just say I'm sorry," and "I wish it would've never happened." Fisher said, "I apologize, I was fucked up. I know I was fucked up. I was high, drunk and I wish it [ha]d never happened." Fisher said, "I wish I could take that shit back." Steven asked Fisher, "So why were you . . . sucking my dick?" Fisher replied, "I don't know. . . . I didn't do anything else. . . . I don't know why I did this shit."

H. DNA Evidence

After obtaining a search warrant, Detective Bradley took a DNA sample from Fisher. San Diego Police Criminalist David Cornacchia compared the DNA obtained during Steven's SART exam to Fisher's DNA. Cornacchia found a "large quantity" of Fisher's DNA on Steven's penis swab and a "significant amount" of Fisher's DNA on Steven's scrotum swab. The probability that someone selected at random in the African-American population would have this DNA is one in 26 sextillion.

Cornacchia testified these findings were consistent with Fisher performing oral copulation on Steven. He also testified that DNA transfer can occur without sexual contact, such as by shaking hands or wearing another's clothes. However, the amount of Fisher's DNA on Steven's penis and scrotum exceeded that which would be expected from such a transfer.

I. Verdict

After a four-day trial, the jury deliberated 43 minutes and returned a guilty verdict, finding Fisher orally copulated an unconscious person in violation of section 288a, subdivision (f). The court sentenced Fisher to the midterm of six years in prison, with credit for time served.

DISCUSSION

I. THE JUDGMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE

A. The Elements of the Charged Offense

Section 288a, subdivision (f) provides in part:

"Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions: (1) Was unconscious or asleep."

B. Fisher's Main Contentions

Fisher contends there is no substantial evidence that Steven was asleep at the time of the oral copulation. Fisher contends this case is governed by People v. Lyu (2012) 203 Cal.App.4th 1293 (Lyu), where the court reversed a conviction for oral copulation of an unconscious person because the victim was aware of the defendant's conduct as it was happening.

Fisher also contends there is no substantial evidence oral copulation occurred. He asserts Steven made "various unsubstantiated accusations," for example, telling the 911 operator he was "raped," but saying nothing about oral sex, and stating Fisher was "touching on him" and "trying to play with [his] penis." Citing Steven's testimony that in the hotel room immediately afterwards he "really didn't know what was really going on", Fisher contends the evidence, when viewed as a whole, is insufficient to support his conviction.

Additionally, Fisher contends there is no substantial evidence that he was aware that Steven was asleep. And, Fisher contends the DNA evidence does not support his conviction because the SART nurse did not detect any saliva and "the record shows only" that DNA on Steven's "groin area . . . probably came from [Fisher]—from his skin or saliva; directly from [Fisher] or transferred by a towel or clothing."

C. The Standard of Review

In reviewing the sufficiency of the evidence, we determine "'"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'" (In re V.V. (2011) 51 Cal.4th 1020, 1026, italics omitted.) The court draws all reasonable inferences in support of the judgment and does not reweigh the evidence. (People v. Vernon (1979) 89 Cal.App.3d 853, 870.) It is the exclusive province of the jury to determine witness credibility. (People v. Hovarter (2008) 44 Cal.4th 983, 996.) "The testimony of one witness, if believed, may be sufficient to prove any fact." (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)

D. Substantial Evidence That Steven Was Asleep

Contrary to Fisher's argument, substantial evidence supports the jury's determination that Steven was asleep when Fisher began oral copulating him. Steven testified, "While I was asleep, and not like an hour or two hours into my rest I woke up with him performing oral sex on me." (Italics added.) Asked, "Did you actually fall asleep?", Steven answered, "Yes." Steven also testified, "When I—my eyes opened I saw him, you know, crouched over on top of, you know, like my penis." (Italics added.) Steven testified he actually saw Fisher's mouth on his penis.

Moreover, in testimony Fisher ignores, Officer Zimmerman testified:

"Q: Did [Steven] tell you what, if anything, happened? What made him wake up?

"A: He woke up and the defendant was orally copulating him."

The SART nurse, Elizabeth Greer, similarly testified:

"Q: What did [Steven] tell you?

"A: . . . [H]e had sex with a female partner I think he said around 4:00 [a.m.], and then later he went to sleep, and when he woke up there was a man performing oral sex on him."

Fisher's assertion that Steven's testimony was vague and inconsistent is not supported by a reasonable view of the entire record. In the 911 call, Steven reported an "attempted rape." However, Steven was not giving a discourse on the legal definition of rape. He was a 25-year old student who witnesses described as being upset, frantic, confused, and angry—and on the 911 call, Steven was even crying. At trial, Steven testified he used the term "rape" on the 911 call because he "couldn't think of the words to explain the situation. That's the one that came straight to my head." In ordinary language, rape includes "unlawful sexual activity" and "an outrageous violation." (Merriam-Webster's Collegiate Dictionary (11th ed. 2006) p. 1030.) That is what occurred.

Similarly, in the 911 call Steven reported Fisher had been "touching on him" and "trying to play with [his] penis." That is simply another less graphic manner of describing oral copulation in plain language. Viewing the record as a whole, the jury could not have construed Steven's 911 call as reflecting anything less than what he said to Officer Zimmerman just a few minutes later—he awoke to see Fisher's mouth on his penis.

In any event, assuming without deciding there were inconsistencies in Steven's account of the crime, it was for the jury to determine Steven's credibility. (People v. Ashley (1954) 42 Cal.2d 246, 266.) Any conflicts in the testimony of a single witness are to be resolved by the trier of fact. (People v. Koontz (1959) 171 Cal.App.2d 633, 634.)

Fisher also contends the evidence was "unclear" whether Steven was asleep when Fisher orally copulated him because Steven testified he saw Fisher's mouth on his penis for just a "split second" and that immediately after the incident, he "didn't know what was really going on." However, Fisher's argument takes this testimony out of context. The entire colloquy, quoted below, shows Steven saw Fisher long enough to make eye contact, and he fully realized what Fisher did:

"Q: How long did you see his mouth there before he jumped back into his bed?

"A: It was like a split second.

"Q: So as you were coming up did you make eye contact with him?

"A: Yes.

"Q: Then he jumped back into his bed?

"A: Yes.

"Q: What did you do next?

"A: Well, I—still half asleep so I kind of just like closed my eyes and sat my head back like trying to wrap my finger [sic] around the situation. I really didn't know what was really going on. So I kind of laid there. I came to the realization of what really just happened." (Italics added)

Because there is substantial evidence that Steven was asleep when Fisher was orally copulating him, Fisher's reliance on Lyu, supra, 203 Cal.App.4th 1293 is unavailing. In Lyu, the victim was awake when her masseuse orally copulated her. She "instantly knew, perceived, and was cognizant" when the defendant's mouth was "down there." (Id. at p. 1301.) In contrast here, Steven testified he was asleep and then awakened to find Fisher already orally copulating him. Moreover, Steven testified that when he awoke, he had an erection, evidence from which the jury could reasonably infer Fisher had been orally copulating Steven before Steven awakened.

E. Substantial Evidence Fisher Knew Steven Was Asleep

Fisher contends there was no evidence he knew Steven was unconscious. In his reply brief, Fisher asserts "[t]he jury necessarily relied on speculation and innuendo" in determining he knew Steven was asleep and could not resist.

However, substantial evidence supports the jury's finding Fisher knew Steven was asleep. In the recorded pretext call, which Fisher's argument ignores, Fisher admitted he knew Steven was asleep:

"Steven: . . . Why did you suck my dick? Why?

"[Fisher]: Hey but I . . .

"Steven: I mean obviously you do it. Listen, I'm asleep, I don't know what the fuck else you did to me.

"[Fisher]: I didn't do shit else to you. . . . I poured some fuckin' water on you to wake you up, that was about it and you didn't wake up.

"Steven: So you poured water on me, I didn't wake up, so you decide to suck my penis." (Italics added.)

In addition to Fisher's admission, there was also circumstantial evidence that Fisher knew Steven was asleep. Steven testified that after having sex with Asia, he went to sleep in his boxer shorts. But when he awakened later to find Fisher orally copulating him, his boxer shorts were off and Fisher was crouched over his penis. The reasonable inference is Fisher stripped off Steven's shorts while he was asleep and then orally copulated him.

F. The DNA Evidence Supports the Judgment

Fisher's assertions that the DNA evidence does not support the judgment also fail. Although the SART nurse did not find saliva on Steven's penis, the examination occurred about 90 minutes after Steven left the hotel. The nurse testified that despite the absence of visible findings, "contact could have occurred."

Fisher's attempts to minimize the DNA evidence are also untenable. First, he asserts the DNA evidence is weak because the SART nurse did not find any semen. However, sexual arousal is not an element of section 288a, subdivision (f). Second, Fisher contends the record "shows only" that "DNA evidence found on the groin area of Steven probably came from [Fisher]—from his skin or saliva; directly from [Fisher] or transferred by a towel or clothing." (Italics added.) However, Fisher's DNA was not found on Steven's "groin area." Rather, a "large quantity" of Fisher's DNA was on Steven's penis, and a "significant amount" of Fisher's DNA was on his scrotum. Moreover, Fisher was not merely a "probable" source of this DNA—it was a virtual certainty he was. The likelihood that someone other than Fisher left that DNA on Steven's penis was one in 26 sextillion.

Additionally, although Cornacchia testified that DNA can be transferred by shaking hands or wearing someone else's clothing, the amount of DNA on Steven's penis and scrotum exceeded that which would be expected from shaking hands or wearing another's clothes.

II. THE COURT DID NOT COMMIT INSTRUCTIONAL ERROR

A. Factual Background

The district attorney charged Fisher with one count of oral copulation of an unconscious person in violation of section 288a, subdivision (f). After the People rested their case-in-chief, the court and counsel discussed whether the jury should be instructed on any lesser included offenses. Both lawyers said no such instructions were required:

"The Court: . . . I don't believe there are any LIO's [lesser included offenses] in this.

"[Fisher's attorney]: Any what now?

"The Court: Lesser included offenses.

"[Fisher's attorney]: Not that I was aware of.

"The Court: I looked at all the books I could get on this and I can't find any LIO's that are appropriate here. There is an attempt, but the evidence here is clear, either the act occurred or it didn't."

B. The Court Had No Duty to Instruct on Lesser Included Offenses

On appeal, Fisher contends the judgment should be reversed because the court did not sua sponte instruct on lesser included offenses. Fisher contends that Steven's testimony he saw Fisher's mouth on his penis for only "a split second," as well as his "varied claims to police and others" required instructions on attempted oral copulation of an unconscious person, sexual battery, battery, assault with intent to commit oral copulation, and assault.

"The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater." (People v. Brothers (2015) 236 Cal.App.4th 24, 29 (Brothers).) This instructional requirement "'prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither "harsher [n]or more lenient than the evidence merits."'" (People v. Smith (2013) 57 Cal.4th 232, 239-240.)

"We review the trial court's failure to instruct on a lesser included offense de novo [citation] considering the evidence in the light most favorable to the defendant." (Brothers, supra, 236 Cal.App.4th at p. 30.)

Fisher's assertion that the court should have instructed on sexual battery fails because sexual battery is not a lesser included offense of oral copulation of an unconscious person. Sexual battery must be done "for the purpose of sexual arousal, gratification, or abuse" (People v. Muniz (1989) 213 Cal.App.3d 1508, 1517, disapproved on another point by People v. Escobar (1992) 3 Cal.4th 740, 749), an element not included in section 288a, subdivision (f). Although sexual battery may be a lesser related offense, the court has no sua sponte duty to instruct on lesser related offenses. (People v. Lam (2010) 184 Cal.App.4th 580, 583.)

Moreover, although the record contains substantial evidence of oral copulation on an unconscious person, it does not contain substantial evidence of attempted oral copulation; i.e., there is no evidence of a direct but ineffectual act toward committing the crime.

The same is true of the other offenses Fisher contends are lesser included offenses in this case. The jury's choice was to believe Steven—that he awoke to see Fisher orally copulating his penis—or find Steven made the whole thing up. There was no middle ground. As discussed in part I, ante, no witness, including Steven, gave any other version of the events. Fisher committed either oral copulation of an unconscious person or he was not guilty of anything. The court had no duty to instruct on lesser included offenses.[7]

C. The Court Had No Duty to Give a Special Instruction

Without objection, the court instructed the jury with CALCRIM No. 1018, as follows:

"The defendant is charged with oral copulation of a person who was unconscious of the nature of the act in violation of Penal Code section 288a [subdivision] (f).

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant committed an act of oral copulation with another person;

"2. The other person was unable to resist because he was unconscious of the nature of the act;

"AND

"3. The defendant knew that the other person was unable to resist because he was unconscious of the nature of the act.

"Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

"A person is unconscious of the nature of the act if he or she is (unconscious or asleep/[or] not aware that the act is occurring."

For the first time on appeal, and citing Lyu, supra, 203 Cal.App.4th at page 1300, Fisher contends the court erred by not giving a sua sponte instruction that would have "further explained . . . that it was not enough to be surprised by the contact if Steven knew the act occurred as soon as it happened." He further contends his trial attorney rendered ineffective assistance by not asking for such an instruction.

Instructions that do not involve general principles of law, but instead relate particular facts to an element of the charged offense are required to be given only if requested and if substantial evidence supports the proffered instruction. (People v. Nelson (2016) 1 Cal.5th 513, 542.) Here, even if Fisher's trial attorney had requested such an instruction, the court would have properly refused it because it would not have been supported by the evidence. Steven woke up to find his erect penis in Fisher's mouth. There is no substantial evidence that Steven was already awake when Fisher began orally copulating him.

III. THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING FISHER'S REQUESTS TO CONTINUE THE TRIAL

Fisher contends the court prejudicially abused its discretion in denying his trial counsel's motions to continue the trial. As explained next, we disagree.

A. Factual Background

1. The first two continuances

The district attorney filed a felony complaint against Fisher in July 2014. At the preliminary hearing in December 2014, Fisher was represented by his retained counsel, Maryetta C. Marks. Two witnesses testified at the preliminary hearing: Steven and Cornacchia, the DNA analyst. Marks cross-examined both witnesses.

The court set trial for March 5, 2015. By stipulation, the trial was continued to May 12, 2015, and by another stipulation, was continued again to September 21, 2015.

2. The third continuance

On September 17, 2015, Marks filed a motion to continue the trial for a third time. She asserted there was "additional discovery" she had not yet received, and unspecified "additional investigation" she needed to complete.

In an accompanying declaration, Marks stated that on August 12, 2015, she had money ($42) to pay for discovery, but was told no discovery was available. Marks stated that 19 days later, on August 31, 2015, when she learned the discovery was available, she no longer had money to pay for it.

The prosecutor agreed to continue the trial to January 20, 2016. However, concerned that it was now September and Marks still had not yet picked up the discovery, the prosecutor told the court, "I think she's indicated she doesn't have the money to pick it up. And that's obviously an issue, because I don't want to come back here in January."

The court instructed Marks to see the judge in Department 11, who could "authorize funds to make the discovery." However, the prosecutor was still concerned, stating, "[W]e are putting this out quite a bit, and my concern is, I don't know what else will come . . . . I have had occasion where [a] defense attorney needs help with getting an investigator, or . . . a[n] expert witness, and so I just don't want to find myself in January . . . dealing with some of these issues."

The court replied that it would be "really inappropriate" to continue trial again, and the court offered to help Marks by contacting Department 11 himself on her behalf. Marks stated she needed to get the discovery and also hire an investigator, and would "do a declaration and a motion" to obtain funds. The court again offered to inform the judge in Department 11 "as to what's going on, and tell her that [Marks] may be making a motion, hopefully quickly." (Italics added.) Marks replied, "Yes."

3. Motion for a continuance—January 7, 2016

Despite stating in September 2015 that she would seek funds "quickly," by January 2016, Marks still had not filed a motion seeking money to pay for discovery or investigation.

Instead, on January 7, 2016, she filed another motion for a trial continuance. In an accompanying declaration, Marks stated that as of August 31, 2015, she learned there was additional discovery, but had "yet to receive all of the discovery, all at one time."

At the hearing, the prosecutor summarized the relevant procedural history: On August 12, 2015, apparently while in San Diego on other business, Marks appeared unannounced at the district attorney's discovery desk to obtain discovery and was told none was available. About two weeks later, on August 28, 2015, a paralegal with the district attorney's office sent Marks an e-mail and followed up with a telephone call, informing her discovery was available and its cost. However, Marks did not request the discovery until November 18, 2015, when she sent an e-mail to the paralegal, stating she now had funds to obtain the discovery. Two days later, the paralegal instructed Marks on how to get the discovery. The prosecutor told the court, "I have heard nothing else" until "a few days" before the January 7, 2016 hearing, when she learned Marks still had not picked up the discovery. The prosecutor commented, "All we can do is make discovery available. We can't force her to pick up the discovery."

Next, the prosecutor told the court she brought the discovery to court, it was not voluminous, and "if counsel wants the discovery, I have it here. . . . She can take it, we're still a few weeks out from the trial." The prosecutor said, "[T]his is very concerning to me that this case is going on and on and on, and I have, you know, a very serious crime that the defendant is out on bail, I have a victim who has a right to a speedy trial, and this case should be moving forward. And the only reason it's not moving forward is because [Marks is] not picking up the discovery to which to do her further investigation." The prosecutor said that if Marks was not able to pay the $61.50 for the discovery, "perhaps the court wants to order me to turn it over, and I'm happy to, and then she can provide [the money] when she has [it]. I just want to move this case along."

Marks replied that she was "prepared to issue a check to pay for the discovery" and she asked the prosecutor to represent this was all the discovery in the case.

The prosecutor stated the discovery she brought to the hearing was "[a]s far as I know," everything except for the "detective's file," which was unavailable because the detective was out of town until January 12, 2016. The prosecutor promised to review that file on January 12 and "f there's anything additional, I will forward it. But to my knowledge, this is everything."

4. [i]Motion for a continuance—January 20, 2016

About two weeks later, on January 20, 2016, Marks filed another motion to continue the trial. Marks again stated she had "yet to be provided with the full and complete discovery," and she needed to do "additional investigation, research and preparation." Marks stated that the "prosecution's consistent failure to provide discovery in a timely manner" caused the defense to "have to completely restructure the theory of the defense and investigate and research the new evidence." She noted that in October 2014 she "personally delivered" to the prosecutor an informal request for discovery.

The court conducted a hearing, first noting it was now about 390 days since Fisher was arraigned. Marks stated the defense "has been diligent in seeking to get discovery" and although she is privately retained, lack of money has hindered how the defense has received discovery.

The court asked Marks whether she ever asked the prosecutor to waive the "rather modest fee for the discovery." After Marks said she did not remember, the court asked Marks if she sought an order compelling the prosecutor not to charge the defense for the discovery. Marks conceded she did not, stating it was easier to borrow the money than to prepare a motion.

The court stated the defense had not shown due diligence to justify a continuance. Turning to the issue of prejudice, the court stated, "What's the prejudice? I mean, this case is pretty simple. You read the preliminary hearing transcript. It's clear the . . . alleged victim, says something happened. There is a pretext phone call to the defendant . . . . [T]hen there is the DNA. All of that has been known to you at the time of the preliminary hearing which was . . . December 2014."

Marks replied that there were foundational issues with the DNA evidence and the prosecutor had "ambushed" the defense with a "witness list . . . at least doubling in size at the last minute . . . ."

The court asked the prosecutor, "Is there anyone on [your] witness list that is not mentioned in the police reports or other discovery?" The prosecutor stated, "No."

The court agreed the foundation for the DNA evidence was a "critical issue"; however, the court stated he was "prepared to meet it when the prosecutor puts on their evidence. If they don't show a proper foundation it does not come in. So, that's simple."

The prosecutor then reviewed the history of discovery in the case, essentially repeating the chronology she gave at the January 7, 2016 hearing. Additionally, she told the court that on January 7, 2016, she told Marks that in preparing for trial, she had interviewed Steven's sister and Willie Shelton, his brother-in-law. The prosecutor told Marks what they had said and promised to provide a written report later the same day. Later on January 7, 2016, the prosecutor sent the complete discovery to Marks. The prosecutor also said that she had now reviewed the detective's file and was giving Marks "three pages" of notes that "don't seem to be very significant, but I will turn those over as well here today." Last, the prosecutor stated the witnesses she identified for trial were "either in reports, [or] took reports."

The court denied Fisher's motion for a continuance. The court determined the prosecution had not committed a discovery or Brady[9] violation. The court also determined the defense had not acted with due diligence, and there was no prejudice.

5. Motion for continuance—January 25, 2016

On January 25, 2016—the day before the first witness testified—Fisher filed another motion for a trial continuance, asserting "defense counsel does not have discovery compliance." Fisher also asked for a discovery compliance hearing and dismissal of all charges because of the "consistent and historic failure to provide discovery at least thirty . . . days before trial . . . ."

In an accompanying declaration, Marks stated the prosecutor waited until January 20, 2016, to file a motion to admit into evidence an uncharged act. Marks also complained that for the first time on January 20 the prosecutor showed her Steven's rap sheet, showing a conviction for possessing marijuana for sale, and that of another possible witness with a grand theft conviction.

The prosecutor told the court the uncharged act was from Fisher's own Facebook records and that Marks had known for a long time his Facebook "was an issue in the case."[10] The court stated it was not making a finding of late discovery, but nevertheless denied the prosecutor's motion to admit the uncharged act in the People's case-in-chief.

Regarding the rap sheets, the prosecutor told the court that the previous week (January 20), she gave Marks "all of the rap sheets to view as long as she wanted. She handed them back to me." The prosecutor stated, "Our practice is to run rap sheets . . . close to trial [because] . . . a lot of times [witnesses] pick things up." The prosecutor said she did not intend to call the witness with the grand theft conviction, but if she did, Marks could impeach with the conviction.

Regarding Steven's conviction, the court asked Marks, "[W]hat type of investigation needs to be done on that? In other words, it is what it is. You know, when you impeach that witness you simply say: Isn't it true on a certain date you were convicted of a felony of moral turpitude? You can give the section that he was convicted of. And you don't go into the sentence or anything else. I mean, what's the big thing here? What's the big deal?"

Marks replied that she wanted to investigate the job application Steven had completed with the Compton School District because "it's even questionable if he in fact put that information, that conviction on the job applications" which would impeach his credibility, a main issue in the case.

The court asked the prosecutor why she had not given Steven's rap sheet to Marks before January 20, 2016. The prosecutor replied she gave it to Marks at the preliminary hearing. However, Marks disagreed, stating, "I definitely was not shown his rap sheet at any preliminary hearing."

The court stated that whether Steven lied on an employment application was "impeachment really on a pretty collateral issue." The court ruled that Marks could cross-examine Steven about his conviction and whether he informed his employer about it, but denied the motion for a continuance.

B. Legal Standards

Section 1050, subdivision (e) provides in part, "Continuances shall be granted only upon a showing of good cause." The trial court has broad discretion in determining whether good cause exists. (People v. Doolin (2009) 45 Cal.4th 390, 450.) "The court must consider '"'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.'"' [Citation.] While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence [citation], the trial court may not exercise its discretion 'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.'" (Ibid.; see also People v. Jenkins (2000) 22 Cal.4th 900, 1037 ["A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence."].)

"'The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.'" (People v. Fuiava (2012) 53 Cal.4th 622, 650.) "'Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.'" (Ibid.)

C. The Court Did Not Abuse Its Discretion in Denying the January 7, 2016 Motion for a Continuance

Fisher contends the court abused its discretion in denying his January 7, 2016 motion for a continuance because "the prosecuting attorney admitted multiple times items had not been turned over prior to January 5, 2016."

Fisher is correct that it was not until January 5, 2016, that the prosecutor provided photographs taken at Steven's SART exam. However, Fisher fails to show he was prejudiced from this late production. The SART nurse testified Steven had no visible injuries, and she did not detect any dry or moist secretions, including saliva. If Steven had sustained a physical injury, or if there were visible secretions still on his body, a picture might be worth a thousand words. But in this case, the uncontradicted evidence was that Steven had no physical injuries and no visible evidence of the alleged crime on his body. The court did not abuse its discretion in determining Fisher was not prejudiced by any tardy production of photographs that showed no injury and no physical evidence, and which were cumulative of the nurse's testimony.

Fisher also fails to explain how he was prejudiced by any tardy disclosure of the prosecution's attempt to use his Facebook record as evidence of a prior uncharged act. The court denied the prosecutor's pretrial motion to admit such evidence in her case-in-chief and the evidence never came in. Moreover, in August 2014 Marks knew the prosecution was obtaining these records. On August 28, 2014, Marks filed a motion to quash a search warrant issued to Facebook. The court denied the motion in November 2014. Thus, for more than a year before trial, Marks knew the prosecution had obtained the Facebook evidence.

At the hearing on Fisher's motion for a continuance, the prosecutor told the court that in preparing for trial, she had subpoenaed witnesses who her investigator had interviewed. She offered to provide to Marks the investigator's notes of these conversations and, in the meantime, said, "I'm happy to give you the gist of it now if you want."

On appeal, Fisher contends the investigator's notes are "another late bit of discovery" showing the court abused its discretion in denying a continuance. However, in the trial court Marks made no such complaint, and on appeal Fisher fails to explain how he was prejudiced.

Fisher also contends he was prejudiced because eight days later, on January 15, 2016, the prosecutor filed a trial brief with a 12-person witness list, "seven more than previously indicated." Fisher contends Marks had "no prior warning these witnesses would be called to testify." Fisher notes that in October 2014, he served the prosecutor with an informal discovery request, including a request for discovery of witnesses. Fisher also asserts that because he lacked "sufficient advance notice" that Steven's brother-in-law, Willie Shelton, would testify, Marks was unable to conduct a "full" cross-examination of that witness.

However, the court did not abuse its discretion in determining Fisher was not prejudiced by the prosecution's witness list. The court asked the prosecutor, "Is there anyone on [your] witness list that is not mentioned in the police reports or other discovery?" The prosecutor stated, "No." Moreover, the police reports and other discovery had been available to Fisher's attorney since August 28, 2015.

Additionally, Marks effectively cross-examined Shelton. For example, through Shelton's testimony Marks established that Steven was arrested for possessing marijuana for sale, and that Steven used marijuana "on a continuous basis." Fisher cites nothing in the record supporting his broad assertion that Marks's cross-examination of Shelton was limited or impaired.

D. The Court Did Not Abuse Its Discretion in Denying the January 20, 2016 Motion for a Continuance

Fisher contends the court abused its discretion in denying his January 20, 2016 motion for a continuance because the prosecutor had not timely provided discovery. However, the trial court did not abuse its discretion in denying the motion on the grounds Marks had not exercised due diligence. The bulk of the discovery was available to Marks on August 28, 2015. In November 2015 the district attorney's office again notified Marks to retrieve the discovery, but she failed to respond.

Fisher correctly states the prosecutor made some discovery available as late as January 2016. As noted, on January 5, 2016, the prosecutor realized the People had inadvertently not provided Steven's SART exam photographs and a download from Fisher's Facebook account. She provided those to Marks on that date. On January 7, 2016, the prosecutor provided Marks with two pages of witness summaries. The same day, she told the court and Marks the only discovery remaining was her review of Detective Bradley's file. By January 20, 2016, the prosecutor had reviewed that file and provided three pages of notes she characterized as insignificant—a description Fisher does not challenge.

Fisher contends these January 2016 disclosures violated section 1054.7, which generally provides that the prosecuting attorney is required to disclose materials and information "at least 30 days prior to trial . . . ." However, that statute also provides, "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred." Fisher does not demonstrate the court abused its discretion in determining the prosecution acted reasonably and Fisher was not prejudiced by any of the discovery first obtained and provided in January 2016.

E. No Abuse of Discretion Regarding the January 25, 2016 Motion

Fisher's opening brief does not separately argue the court abused its discretion in denying his January 25, 2016 request for a continuance. Accordingly, the issue is forfeited. (People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5 (Crosswhite) [reviewing court may disregard claims perfunctorily asserted without development and without clear indication they are intended to be discrete contentions].) Moreover, even if not forfeited, we would find no abuse of discretion. There was no showing of prejudice. Marks successfully excluded the Facebook evidence from the People's case-in-chief, and in any event, had been aware of its existence since 2014. The court also allowed Marks to cross-examine Steven about his marijuana conviction. The other potential witnesses with convictions were not called to testify.

F. No Brady Violation

The prosecution has an affirmative duty to disclose material exculpatory evidence to the defense. (Brady, supra, 373 U.S. at p. 87.) "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.] Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt or innocence.'" (People v. Salazar (2005) 35 Cal.4th 1031, 1043.)

Evidence is material when it is reasonably probable that, had it been disclosed, the result of the trial would have been different. (People v. Jenkins, supra, 22 Cal.4th at p. 954.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings." (Ibid.) "It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract." (People v. Dickey (2005) 35 Cal.4th 884, 907-908.)

In denying Fisher's January 20, 2016 motion for a continuance, the court stated, "I don't think there is a discovery violation either statutory or under Brady. On appeal, Fisher contends in so ruling the court abused its discretion. We disagree.

On appeal, "[w]e independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)

Fisher contends the People committed Brady violations because before trial the prosecution failed to provide him with laboratory reports showing that on the day of the incident, Steven had (1) a blood alcohol level of 0.01 percent, and (2) cannabinoids.[11] Fisher also contends the prosecution violated Brady by not providing (a) "impeachment materials concerning Steven's background" obtained from the Compton Unified School District; (b) photographs of Steven at the SART exam that would have "illustrated the total lack of bruising and bodily fluids on his body"; and (c) unspecified "notes or reports from Detective Bradley's interviews with other potential witnesses."

We reject Fisher's argument because he cannot show the requisite prejudice. The laboratory reports showed what Steven admitted in his trial testimony—he drank some rum and smoked marijuana before falling asleep.

Fisher contends that without evidence of Steven's negligible 0.01 percent blood alcohol level, the prosecution was able to elicit Steven's "fundamentally unchallenged testimony" that Fisher was attempting to ply him with alcohol "throughout the night and bolstering the claim of unconsciousness." However, Steven's testimony on this point actually favored Fisher. Steven testified that he drank only one mixed drink at the first club. At the next club, he had no alcohol. Steven testified he had no alcohol upon returning to the hotel room after 1:30 a.m. And although Steven testified Fisher poured him a cup of rum around 4:30 a.m., Steven stated he "didn't drink too much of it because [he] was already high from the weed and [he] do[esn]'t like the alcohol that much." Indeed, at sentencing, the court commented that the evidence did not show Fisher tried to get Steven drunk.

Moreover, Steven's employment records with the Compton School Board were not improperly withheld. During trial, the school board was unable to locate any relevant records. Moreover, after trial (but before Fisher filed a motion for new trial), although the school board found some responsive documents after taking another look, the documents apparently had no impeachment value. After the court and counsel examined the records, the matter was dropped.

As discussed ante, the SART photographs were immaterial because the prosecution did not assert Fisher used any force, caused any visible injuries, or left any visible physical evidence on Steven's body. The SART nurse testified Steven had no physical injuries and there were no wet or dry secretions on his body.

On January 20, 2016, before trial, the prosecutor gave Marks three pages of Detective Bradley's notes, stating, "I have three pages here that are notes that don't seem to be very significant, but I will turn those over as well here today." In neither the trial court nor on appeal has Fisher stated what these notes contain, and thus he has failed to sustain his burden of showing prejudice from any tardy production.[12]

IV. THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING

FISHER'S MOTION FOR NEW TRIAL

A. Factual and Procedural Background

After the verdict but before sentencing, the court relieved Marks as Fisher's attorney and appointed the public defender's office as his counsel. Fisher's new attorney filed a motion for new trial on the ground of ineffective assistance of trial counsel. In the points and authorities, Fisher's attorney asserted Marks rendered ineffective assistance by failing to: (1) consult with a DNA expert, (2) retain a psychologist to perform a Stoll[13] evaluation, and (3) initiate plea negotiations. The motion was accompanied by a declaration from Marks and a written report from a DNA expert, R. Vincent Miller.

In her declaration, Marks asserted she was unprepared for trial because of the prosecutor's discovery violations. She also asserted Fisher was denied a fair trial because: (1) the victim was referred to by his first name only, (2) the jury questionnaire contained an improper question about homosexuality, (3) Fisher was the only African-American male in the courtroom and there were no African-American males in the 60-person panel from which the jurors were selected, (4) the court improperly denied her challenges for cause, and (5) the court erroneously denied her request to exclude evidence of the uncharged Facebook act for all purposes.

The court conducted an evidentiary hearing. The parties stipulated that if called as a witness, Miller would testify to the contents of his report. In his report, Miller stated he had reviewed the San Diego Police Department laboratory reports, notes, worksheets, and supporting documentation. Miller concluded that the finding Fisher's DNA was on Steven's penis swab is "supported by the data." However, Miller stated the laboratory did not test for saliva, and therefore the laboratory "cannot definitively show that saliva was present or determine the potential bodily source of [Fisher's] DNA . . . ." Miller concluded "t is possible" the source of Fisher's DNA on Steven's penis "could have been secondary transfer."
Marks testified she has been a criminal defense trial lawyer since 1987, her primary practice is in Los Angeles County, and she became involved in this case in June 2014 when Fisher called her after police obtained his DNA. Fisher agreed to pay her $125,000; however, he never paid her anything, and she continued to represent him. Marks testified she was "very involved and aggressive in [her] defense on [Fisher's] behalf." She attended approximately 20 court appearances throughout the year and a half the case was pending.

Marks testified she did not ask for funding to retain a [i]Stoll expert. She added that as of January 7, 2016, she did not know that in San Diego there is a procedure for retained counsel to obtain indigent funds.[14]

On direct examination, Marks testified she did not discuss a negotiated plea because she did not have all the discovery. However, on cross-examination, Marks testified that Fisher told her he was innocent[15]—and in all the court appearances she made in the case, she was not going to "talk plea negotiations" because she believed Fisher was innocent and wanted the case tried.

After hearing the witnesses, the court stated that before trial it was concerned that Marks had failed to (1) pick up discovery in a timely manner, (2) ask the court to find Fisher indigent so she could get discovery without cost or an investigator, (3) ask for an investigator in a timely manner, (4) move for a continuance in a timely manner, and (5) challenge the jury panel in a timely manner. The court was not concerned with Marks's failure to explore a negotiated plea because, "I don't think it's incompetent at all to say, 'Look. I want to go to trial because my client says that he's not guilty.'"

However, the court stated, "I thought Ms. Marks did a good job at trial . . . ." The court further explained:

"There was a good cross-examination of the victim. . . . [¶] The cross of the officer that originally talked to Steven. . . . I thought it was a very thorough examination of the officer. Detective Bradley was questioned about whether this Asia was a male or female, got the detective's testimony that the victim wasn't candid when he talked about smoking . . . marijuana."

"The DNA expert was very, very thorough about the transfer. She got the expert to admit that it can—contamination happens and that there was foreign DNA on the swab."

"I thought her closing argument was excellent. She even mentioned that the Bible talks about one witness not being enough to prove something. There was no objection to that by the prosecutor, but I don't know if I would have sustained it or not, but, anyway, it was a very effective argument."

"Marks did challenge the Facebook search warrant. She did persuade me to exclude the Facebook material."

"I reread the preliminary hearing transcript. . . . I thought she was very thorough in that."

"She got the case continued many times. I think at one time I added it up. I think it was almost five or six times. But, frankly, I think that's usually a good tactic for the defense . . . . [S]he did a good jury questionnaire. There was extensive questioning of the jurors."

"This business about no . . . Stoll . . . evaluation—I don't know if that really makes much of a difference. There's a risk in doing that. I think that expert might have been able to be asked did the expert consider the Facebook material."

The court denied the new trial motion, stating, "I do believe, I really do believe that Ms. Marks did a very competent job at trial. I had my doubts as to pretrial things, but at trial I had no doubt by the end of the trial that her client got an outstanding defense, really. So any deficiencies, if there are some, particularly as to this DNA, I don't think caused the defendant to get an unfavorable result."[16]

B. Legal Standards

Ineffective assistance of counsel is a ground for a new trial. (Fosselman, supra, 33 Cal.3d at pp. 582-583.) To establish a claim of ineffective assistance of counsel, a defendant must show: (1) trial counsel's performance fell below an objective standard of reasonableness; and (2) the defendant suffered prejudice; i.e., there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694, 687-688; People v. Carter (2003) 30 Cal.4th 1166, 1211.) A reasonable probability is "a probability sufficient to undermine confidence in the outcome." (Carter, at p. 1211.)

We "'need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)

On appeal from the denial of a new trial motion based on a claim of ineffective assistance, we defer to the trial court's factual findings if supported by substantial evidence, and we exercise de novo review over the ultimate issue of whether defendant's constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)

C. No Error

1. Contentions made only in Marks's declaration

Fisher's motion for new trial asserted only a claim of ineffective assistance of counsel. However, in a separately filed declaration, Marks asserted a new trial should be granted on several other grounds, including alleged discovery violations, improper jury selection, and certain evidentiary rulings.

The court considered Fisher's ineffective assistance of counsel claims, but did not consider the other asserted errors discussed in Marks's declaration. Fisher contends the court should have ruled on the additional bases for new trial presented in Marks's declaration and, by failing to do so, abused its discretion.

Contrary to Fisher's contention, the court properly limited its ruling to the ineffective assistance claims asserted in the motion. "A motion for new trial may be granted only upon a ground raised in the motion." (People v. Masotti (2008) 163 Cal.App.4th 504, 508.) The only ground raised in Fisher's motion was ineffective assistance of counsel. Marks's declaration was filed in support of Fisher's motion for new trial, but was not itself a motion or an application for relief. Nor could it be so. The court relieved Marks as Fisher's attorney on April 18, 2016. When Marks filed her declaration on July 14, 2016, she no longer represented Fisher. The caption of her declaration is entitled, "Declaration of Attorney Maryetta C. Marks, Former Counsel, In Support of . . . Fisher's Motion for New Trial . . . ." (Italics added.)

2. Failure to consult with a DNA expert

Fisher contends Marks was ineffective for failing to retain a DNA consultant, who could have informed her that DNA taken from Steven was not tested to determine whether it came from saliva. He contends that without this test, the "crucial defense" that the DNA resulted from "secondary transfer" from shaking hands or sharing clothes and the like was "never presented."

We need not determine whether Marks's failure to consult with a DNA expert was deficient because even assuming without deciding that it was—the court properly determined Fisher cannot show he was prejudiced. Contrary to Fisher's assertion, even without the expert consult, Marks was able to present evidence that Fisher's DNA got on Steven's penis from secondary transfer. On cross-examination, Marks got Cornacchia to concede that "absolutely, yes"—DNA can be transferred from one person to another and "not involve sexual contact." Cornacchia then testified such transfer could occur by shaking hands or wearing someone else's clothing. As the trial court aptly commented in denying the new trial motion, "[W]hen you get a jury, you usually have about 450 years of human experience sitting over there, and you think that out of all those years of human experience, some might say, 'Well, since the defendant and the victim know each other, it's reasonable to assume they shook hands.' The victim had this sexual encounter with Asia, meaning he probably was touching his genitals and that there may have been a transfer. I mean, I don't think a jury has to be told that by an attorney to sort of figure that out."

To establish prejudice, Fisher has to show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. He has to show prejudice as a "'"demonstrable reality,"'" not simply speculation as to the effect of counsel's errors or omissions. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) It is not reasonably probable that the jury would have reached a different result, even if Marks had brought out that the samples were not tested for saliva.

Fisher's defense failed because Steven testified that when he awakened, he saw Fisher's mouth on his penis—and the jury believed him. Evidence that the samples were not tested for saliva is not inconsistent with such a determination. Moreover, the DNA expert testified that the significant quantity of Fisher's DNA on Steven's penis and scrotum could not have come from secondary transfer—in other words, the most likely source of DNA on Steven's penis was Fisher's saliva. Evidence that the samples were not tested for saliva is also not inconsistent with that determination.

3. Failure to retain and present a Stoll expert

An exception to Evidence Code section 1101 allows a criminal defendant to introduce evidence of his character or trait of his character that is relevant to the charge made against him. (Evid. Code, § 1102.) Thus, in Stoll, supra, 49 Cal.3d 1136, the California Supreme Court held a defendant charged with child molesting may introduce such character evidence through expert testimony that he does not fit the profile of a child molester.

Here, Fisher contends Marks rendered ineffective assistance by not consulting and retaining a Stoll expert to testify he lacked the psychological traits of a man predisposed to orally copulate an unconscious male. However, the record does not indicate why Marks failed to consult with or retain such an expert. The declaration she filed in support of the new trial motion is silent on the Stoll issue, and at the hearing she was not asked why she did not retain a Stoll expert. The record therefore does not show Marks lacked a tactical reason for declining to present a Stoll expert at trial. (People v. Lucas (1995) 12 Cal.4th 415, 437 ["'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."].)

Moreover, the record indicates Marks could have made a reasonable and prudent tactical decision to not offer Stoll evidence because it would have opened the door to highly prejudicial evidence in rebuttal. Defense use of character evidence under Stoll opens the door to rebuttal evidence of character. (Evid. Code, §1102, subd. (b).) A psychological report submitted by Fisher's attorney at sentencing states that Fisher acknowledges he "is a gay man" and has been leading "two separate lives" because of his sexual orientation. According to the forensic psychologist, Fisher "possesses an inflated sense of self-worth" and can be expected to engage in "exhibitionistic and self-enhancing behavior." The report further states, "Also notable is [Fisher's] preoccupation with minor fantasies of success, beauty, or love, a somewhat undisciplined imagination that takes liberties with objective reality to assert and reinforce his boastful self-image. He places few limits on his fantasies or rationalizations, and his imagination is left to run free of the constraints of reality or the views of others." Although this report was prepared after trial for sentencing purposes, it is reasonable to believe that in rebutting any testimony from a Stoll expert, the prosecution would have offered similar testimony at trial.

Moreover, presenting a Stoll expert may have opened the door to examining the Stoll expert about Fisher's Facebook material. Fisher's Facebook account shows he engaged in an online chat about an unconscious male in Fisher's car. Fisher's message states, "I should suck his dick, huh?" and then adds, "[b]ut low key he wouldn't know." Near the end of his online conversation, Fisher wrote, "If [yo]u was single I would suck [yo]ur dick and eat [yo]ur ass tonight."

We do not know what a Stoll expert might have said about Fisher's propensity to commit the charged offense. However, in light of the likely rebuttal evidence such testimony would have triggered, the trial court acted well within the bounds of its discretion in determining Marks did not render ineffective assistance of counsel by not retaining and presenting a Stoll expert. The risk/reward calculation would make a decision to forego a Stoll expert a reasonable, if not a compelling, tactical choice.

4. Plea negotiations

Marks testified the prosecutor never offered a plea bargain. Marks did not approach the district attorney with a plea offer either. Marks discussed with Fisher the maximum sentence he could receive if convicted. Fisher told Marks he was innocent, and Marks testified at the new trial motion hearing she did not "talk plea negotiations because [she] believed [Fisher] was innocent of the charges."

Fisher has failed to demonstrate the trial court erred in determining counsel was not deficient and there was no prejudice by failing to inquire about a plea bargain. First, there is no evidence a lesser charge was even available from the prosecution. Steven told Detective Bradley he "felt that he had been violated," and he wanted the case prosecuted "to the fullest extent of the law." The undisputed evidence is the prosecutor never made a settlement offer. Moreover, Fisher offered no evidence he would have pleaded guilty to any charge. Marks's declaration says nothing about plea negotiations and at the hearing Marks testified Fisher claimed he was innocent and wanted Marks to try the case.

V. NO CUMULATIVE PREJUDICIAL ERROR

Fisher contends the "many errors" in this case cumulatively resulted in prejudice and require reversal.[17] However, as Fisher has failed to persuade us that any error occurred, his cumulative error argument is without merit. (People v. Heard (2003) 31 Cal.4th 946, 982.)

VI. THE ABSTRACT OF JUDGMENT SHOULD BE CORRECTED TO REFLECT THAT FISHER WAS NOT CONVICTED OF AN ENUMERATED SERIOUS FELONY

Fisher's abstract of judgment indicates his violation of section 288a, subdivision (f) is a serious felony. However, oral copulation of an unconscious person in violation of section 288a, subdivision (f) is not listed as a serious felony in section 1192.7, subdivision (c). Oral copulation is a serious felony under section 1192.7, subdivision (c) if "by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person."

Appellate courts may order correction of clerical errors in an abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 187.) The Attorney General concedes the error in the abstract of judgment and concurs in Fisher's request that we order it corrected.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment to reflect that Fisher's conviction was not for a serious felony within the meaning of Penal Code section 1192.7, subdivision (c), and to forward a certified copy of the corrected abstract to the Department of Corrections.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.