P. v. Jimenez

Filed 3/19/07 P. v. Jimenez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Martin L. Herscovitz, Judge. Modify and as modified, affirmed.

Nasatir, Hirsch, Podberesky & Genego, William J. Genego and Richard G. Hirsch, for Defendant and Appellant.

Bill Lockyer, and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Defendant and appellant Juan Antonio Jimenez appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of sexual battery and filing a false police report.^[1] He contends: (1) the trial court prejudicially erred in excluding evidence relevant to the victims credibility; (2) he was denied a right to a fair trial as a result of the jurys receipt of extrajudicial information.^[2] We modify the judgment and otherwise affirm.

FACTS

Because defendant was not convicted of the offenses involving Jane Doe, we recite only the facts relating to Megan and the false police report. Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the following evidence was adduced at trial. At all relevant times, defendant was employed as a Los Angeles County deputy sheriff and was assigned to the Malibu Lost Hills station.

A. Filing a False Police Report (Count 4)

On October 4, 2002, Kira Miller and her mother arrived at the Canyon Club sometime between 11:00 and 11:30 p.m. and left at about 1:00 a.m. While Kira went to get her mothers car, her mother struck up a conversation with the two sheriffs deputies who were parked nearby in two separate patrol cars. When Kira drove up, one of the patrol cars was gone and her mother was at the window of the other car, talking to the deputy, who was defendant. When her mother continued talking to defendant after Kira told her lets go, Kira jokingly said, I think we need a police escort home. Her mother then got in the car and Kira started driving. Kira noticed that defendant was following them. At home, Kira parked in the driveway and defendant parked near the mailbox. Kira and her mother walked over to defendants patrol car. Defendant got out of the car and the three of them talked for between 10 and 15 minutes.

After agreeing to Kiras request for a ride-a-long, defendant drove Kira to a nearby park where he stopped and went through the contents of her purse, explaining that he was looking for drugs or weapons. When he resumed driving, defendant allowed Kira to run a few names, including her boyfriends, on the computer. When they encountered some California Highway Patrol officers, defendant pulled up behind them and inquired whether they needed any assistance. When they declined, defendant continued driving.

Eventually, defendant drove Kira to an alley off of Topanga Canyon Boulevard. After coasting halfway down the dark alley, defendant stopped. Kira, who was cold, began rubbing her legs to warm up. When defendant asked if she was okay, Kira said she was fine: I said I just shaved, and now I was going to have to shave again. Defendant asked what else I shaved. When Kira said her arms, defendant asked if there was anything else. And I said that was none of his business. Kira began to feel a little weirded out by defendants intimate questions. At that moment, Kira heard tires screeching and said to defendant, Oh, lets go pull someone over. From the location where they were parked in the alley, it was not possible to see Topanga Canyon Boulevard. But as they emerged from the alley the street was visible and Kira saw several vehicles exiting a parking lot across the street from the alley; the last vehicle was a red truck which made a right out of the parking lot onto Schoenborn Street, where it stopped for a red light before turning left onto Topanga Canyon Boulevard. After the truck turned onto Topanga Canyon Boulevard, defendant pulled out of the alley and followed it, eventually pulling it over at the corner of Roscoe and Topanga Canyon Boulevard. After talking to the driver of the truck, defendant came back to the patrol car and instructed Kira to get out and stand next to the passenger side door. Defendant then went back to the truck, handcuffed the driver and put him in the back seat of the patrol car. While the driver was in the back seat, defendant went through his wallet and showed Kira some white powder which defendant said he thought was cocaine. At defendants instruction, Kira got back into the patrol car. As defendant drove, he instructed Kira to call her mother to pick her up at a gas station because he could not drive her home now that there was someone in the back seat. Defendant explained that Kiras mother could not meet them at the sheriffs station because Kira was not supposed to be in the car. When defendant dropped Kira off at the gas station, he gave her his business card. Kira identified an aerial photograph showing the alley, Topanga Canyon Boulevard and Schoenborn Street (Peoples Exh. 5).

In the report of the incident defendant filed that morning (Peoples Exh. 7), defendant wrote: While traveling southbound on Topanga Canyon Road in my marked patrol vehicle approaching Roscoe Boulevard, I saw a red Toyota Pickup . . . screeching its rear tires, causing both rear tires to smoke as onlookers cheered in violation of [section] 23109(b) [of the California Vehicle Code]. In the east parking lot beside me, the truck sped towards the intersection of Roscoe Boulevard and Topanga in front of me. I effected a traffic stop at the above location to warn/cite the driver regarding the above violation. I contacted the driver.

As the watch sergeant on October 4, 2002, Peter Charbonneaus responsibilities included reviewing reports for accuracy. Unless there is a glaring omission, Charbonneau approves the report. In the report defendant submitted regarding the arrest of the truck driver that night, defendant identified violation of Vehicle Code section 23109 (exhibition of speed) as the probable cause for stopping the truck. Defendants report did not mention Kira or identify any witnesses. Ride-a-longs must be 16 years old and they may ride-a-long on either the day shift or the 3:00 p.m. to 11:00 p.m. shift; ride-a-longs are not allowed on the 11:00 p.m. to 7:00 a.m. shift; prior approval from the watch sergeant must be obtained and they must be listed in the ride-a-long book; the ride-a-long must sign a waiver. Where Topanga Canyon Boulevard intersects with Roscoe Boulevard is within the territory of the Los Angeles Police Department, not the sheriffs department.

B. Sexual Battery Upon Megan F. (counts 2 and 3)

Some time after 10:00 p.m. on December 20, 2002, 16-year-old Megan F. was driving on the 118 Freeway with her friends Chantel and Angel to pick up some friends of Chantels living in the Chatsworth hills. Soon after exiting the freeway at Topanga Canyon Boulevard, Megan pulled over and parked because she was lost. Chantel called her friends and asked them to come guide the three friends to their destination. While Megan, Chantel and Angel waited in Megans car, they stayed in cell phone contact with Chantels friends and joked around about playing the game strip-twister; at some point, Megan got into the back seat and pulled her pants below her knees while positioning herself to display her buttocks against the car window.

When Chantels friends eventually arrived in a van, one of them came over to Megans car. Within 10 to 15 seconds, a police car pulled up behind Megans car. Megan quickly pulled up her pants and moved back into the front seat. When defendant and his partner, deputy sheriff Gastineau, approached Megans car, Megan was afraid she might be arrested for loitering. Angel, who was sitting in the back seat, complied when the officers instructed him to get out of the car. When the officers asked Megan for her drivers license, she informed them that she lost it but she was able to give him her license number. Defendant returned to his patrol car with that information. When defendant came back to Megans car, he told her to get out of the car and then walked her back to the patrol car and instructed her to sit in the back. After telling Megan that she was not under arrest, he asked for her drivers license information again. From her vantage point in the back seat of the patrol car, Megan watched as defendant, who was sitting in the front seat, entered Megans information into a computer and details about Megan appeared on the screen. Defendant told Megan her drivers license was valid and that she could get out of the car. As Megan did so, she heard defendant instruct his partner to search Megans car for drugs or paraphernalia. While Megan was standing at the open back door of the police vehicle, defendant stood in front of her and asked if she was clean. Understanding him to mean not under the influence of alcohol or drugs, Megan responded affirmatively. Defendant next asked if Megan shaved. Unsure what he meant by the question, Megan said, What? Defendant repeated the question and, before Megan could respond, he asked me if he could feel me, and he told me that he didnt want to arrest me, so could he just feel me. Whereupon, defendant put his hand down the waistband of Megans pants, underneath her underwear, and pushed his finger an inch into her vagina. After removing his hand, defendant told Megan that she was cute and asked for her phone number; Megan gave him her mothers cell phone number, which defendant wrote down in his notebook. Then, he told her she was free to go.

Driving away from the scene with Chantel and Angel, Megan told them what had happened. Megan next called her mother and told her what had happened. After the police car passed them, Megan drove Chantel and Angel to Chantels friends house, then she drove home. At home, Megan talked with her mother about what had happened; they called the Los Angeles Police Department. The police arrived and questioned Megan at her home, then took her to a hospital. At the hospital, a sheriffs deputy questioned Megan. Because his uniform looked similar to defendants uniform, Megan felt uncomfortable talking to him about what had happened. Megan was subsequently interviewed by other officers.

Megans mother, Jean F., recalled that when Megan called her that night, Megan was sobbing so much that it was hard to understand what she was saying. Megan told her mother that she had been molested by a law enforcement officer; Jean could not recall whether Megan said police officer or sheriffs officer. The next afternoon, Jean was interviewed by law enforcement officers.

Chantel testified that on December 20, 2002, she and Megan were high school classmates and best friends. Chantels recollections of the events of that night were generally consistent with Megans in all material respects. Chantel recalled that, when the police car pulled up behind them, Megan was obviously scared: her eyes filled with tears and she said, I really cant deal with it. Megan told the officers that she did not want any trouble and would go home right away. About 20 minutes after defendant walked Megan back to the patrol car, Megan returned and they left. As she was driving away, Megan was screaming and she was shaking and she could not drive and I was telling her to stop and she was yelling . . . and thats when . . . I asked her what happened[.] Megan told Chantel that the officer asked if he could touch her genitals. While in the car, Megan called her mother and told her the same thing she had just told Chantel. Chantel opined that Megan could be dramatic, but she did not lie.

Craig Gastineau testified that he and defendant were on patrol that night when they noticed a van and a red Honda parked in dirt lot off the 118 Freeway. Gastineau, who was driving, pulled the patrol car up behind the Honda. While Gastineau approached the two males standing between the van and the Honda, defendant approached the passenger side of the Honda. After telling Gastineau, Her pants are down, defendant instructed the two men to go toward Gastineau. Concerned that the girl with her pants down might be the victim of a sexual assault, Gastineau walked the two men back to the passenger side of the patrol car where he patted them down, questioned them and checked the computer for wants and warrants. As he did so, Gastineau was not watching defendant, although he did notice defendant walk with one of the women in the car to the drivers side of the patrol car. Gastineau testified that separating the possible victim from the suspects was standard practice in a sexual assault investigation. When Gastineau finished with the men, defendant instructed him to find out who was in the Honda and to run their names through the computer. When Gastineau finished that chore, defendant instructed him to search the car for marijuana. After doing so and finding none, Gastineau concluded that there was no crime being committed and that these were just kids out after curfew. When Gastineau walked back to the patrol car, defendant informed Megan that she was free to leave. After thanking both officers, Megan returned to the Honda. She was not crying or shaking and did not appear traumatized. The investigation of the occupants of the van and Honda was not reflected in the officers daily log for that day. Gastineau testified that there are parameters that a male officer must observe when searching a female: You cannot search from the knees to the waistband unless you see something that you know is a weapon or could hurt you or a gun or a knife. You can search [over] the waistband[.] . . . And as far as the breast area if you are going to search has to be with the back of your hand and no palms. Nothing that happened that evening lead Gastineau to believe that Megan had a weapon.

James Kagy testified that, although now retired, in December 2002 he was a sergeant with the sheriffs department and had been assigned to the Internal Affairs Criminal Investigations Bureau since 1993. In the context of his investigation into Megans accusations against defendant, Kagy interviewed Megan. Based on Megans statements, Kagy instructed the sheriffs department to place a lock on defendants work locker. Upon a subsequent search of that locker, Kagy found defendants field notebook, which contained a number of names and telephone numbers. These included the name and number of the victim identified in count 1 of the indictment; Megans name and a telephone number which corresponded to Megans mothers cell phone number; and Kiras name as well as her mothers name. Kagy or some other investigator interviewed these people regarding their contacts with defendant. After interviewing Kira, Kagy accompanied her to the alley where defendant drove her that night. Kagy also reviewed the sheriffs departments mobile digital records for that night, which include deputy daily work sheets, patrol car histories and administrative messages from the patrol cars to the station. The daily work sheets for defendants patrol car on October 4, 2002, show investigations regarding Kira, her mother, and her boyfriend shortly before the time of the narcotics stop on Roscoe and Topanga Canyon Boulevard.

C. Defense Case

Sergeant Daniel Raimo testified that on December 20, 2002, he was the field supervisor at the Malibu Lost Hills sheriffs station. At about 4:00 a.m. that day, he was dispatched to the Northridge Medical Center to meet officers from the Los Angeles Police Department and a sexual assault victim. Because it was determined that the assault occurred in the sheriffs department jurisdiction, the investigation was turned over to Raimo. At the hospital, Raimo, who was in uniform, interviewed Megan, who was not crying and did not appear upset. Megan told Raimo that a deputy asked her if she shaved and whether she was clean, and then asked if he could check. Megan told Raimo that she responded in the affirmative, but she was not sure whether the deputy placed his finger in her vagina.

Rose Villanueva testified that she had known defendant for 10 years and in her opinion he was one of the most honest individuals that Ive ever had the privilege of knowing. Eric Hayes, who had served with defendant in Korea, also attested to defendants honesty.

Defense private investigator Jack Scully testified that he went to the alley described by Kira and determined that there was a place in the alley from which the street was visible.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion Relating To An Alleged Prior Assault

Defendant contends the trial court abused its discretion in excluding, on relevancy grounds and under Evidence Code section 352 ( 352): (1) evidence that Megan had been the victim of a sexual assault on November 23, 2002;^[3]and (2) the expert opinion of clinical psychologist Jeffrey Whiting, that the prior assault had an effect on Megans ability to perceive, recollect and communicate the incident involving defendant. He argues that the evidence was relevant to Megans credibility. In addition, defendant argues, the evidence was relevant as a prior inconsistent statement by Megans mother, regarding exactly what Megan told her when she called from the car immediately after the incident with defendant. We disagree.

Only relevant evidence is admissible and, with certain statutory exceptions, all relevant evidence is admissible. (Evid. Code,  350, 351.) Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code,  210.) However, the erroneous exclusion of relevant evidence cannot be the basis of a reversal unless the error resulted in a miscarriage of justice. (Evid. Code,  354.) Evidence Code section 780, subdivision (c) makes relevant evidence of the extent of [a witnesss] capacity to perceive, to recollect, or to communicate any mater about which he testifies.

But even relevant evidence may be excluded under section 352, which gives the trial court discretion to exclude evidence  if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.  (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1309-1310 (Espinoza); see also People v. Pelayo (1999) 69 Cal.App.4th 115, 121.) A trial courts exercise of its discretion to exclude evidence pursuant to section 352 will not be reversed unless the probative value of the evidence clearly outweighs any probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Peoplev.Von Villas (1992) 10 Cal.App.4th 201, 249; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [A trial courts exercise of discretion under Evidence Code section 352 shall not be disturbed on appeal absent a showing that such discretion was exercised  . . . in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice ].) A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant. [Citations.] (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)

In People v. Alvarez (1996) 14 Cal.4th 155 (Alvarez), the defendant was convicted of, among other things, rape. The trial court excluded evidence that the victim made a prior rape complaint against an unidentified man only after she had been approached by the police about an unrelated matter she subsequently made a rape complaint against defendant only after she had been approached by the police about [an unrelated theft]. (Id. at p. 199, italics added.) The defendant argued that it was prejudicial error to exclude this evidence because it was relevant for impeachment purposes because it revealed a propensity to fabricate. (Ibid.) Our Supreme Court rejected this contention reasoning that, whereas a false accusation would be relevant, a true accusation would have no relevance for impeachment whatsoever. (Id. at p. 201.)

In Espinoza, supra, 95 Cal.App.4th 1287, the defendant was convicted of, among other things, lewd conduct upon his 12-year-old daughter, L., who had been living with her mother in Nebraska before coming to live with defendant a few weeks before the alleged incident. L. had made prior molestation allegations against her uncle in Nebraska, and her uncle had admitted that he had fondled L., but the allegations never made it to trial. (Id. at p. 1300.) The trial court precluded the defendant from introducing the opinion of a psychiatrist that L.s behavior showed that she had been a victim of long-term sexual abuse that had destroyed her ability to distinguish between fact and fantasy and the past and present making her an unreliable reporter of sexual abuse. (Id. at pp. 1301.) The defendant in Espinoza argued to the trial court that the Nebraska molestation had caused L. to suffer from Post Traumatic Stress Syndrome such that L. mixed-up the Nebraska incident with subsequent events. (Id. at pp. 1302, 1307.) The trial court excluded the evidence, noting that under Evidence Code section 782, a false allegation of abuse would be relevant to credibility, but that there was no evidence that L.s accusation against the uncle was false. (Id. at pp. 1304, 1309.) Regarding the expert witness, the trial court excluded the evidence under section 352, finding it to be weak and speculative.^[4] The appellate court affirmed. In so doing, it noted that the antiquated beliefs that led to the former distrust of complaining witnesses in sex offense cases had been disapproved and discarded by the courts and Legislature, as a result of which there is now no authority for admitting psychiatric evidence regarding the credibility of sex crime victims. (Id. at pp. 1311-1312.)

Here, defense counsel argued that evidence that Megan was the victim of a sexual battery on November 23, 2002, was probative of whether Megan was perceiving what happened on the evening in question a few weeks later through the lens or prism of what happened to her a short time before, which, again, involves a person of authority, or at least posing as a person of authority. [] It involves a pat down. It involves someone reaching inside her pants. And I believe her mother said she told her there was skin-to-skin contact. [] So its almost an identical act to whats alleged that our client has done here. [] And if, in fact, its true, then its our view that its more relevant than if its not true, because if its true, its something that would have been traumatic and would have affected her judgment and perception of what occurred on the evening in question. The prosecutor countered that the evidence was irrelevant to Megans ability to perceive this incident and that it would be confusing to the jury because in some ways it suggests that because it happened once before, it couldnt happen again, or she would somehow imagine something happening that was similar.

The trial court excluded the evidence, reasoning that, the defenses theory of relevance was slight, at best and the evidence would be more prejudicial than probative under section 352. The trial court noted that, while a prior false report would be relevant to Megans credibility, evidence that Megan actually suffered a prior sexual battery would be confusing to the jury: [A] knee-jerk reaction a juror would come to as a trier of fact is what youre trying to insinuate[, which is] . . . that lightening cant strike two places within a month, and, therefore, she should be distrusted as a witness because she says a similar thing happened to her before. [] . . . Thats the knee-jerk reaction I had when I heard the evidence. . . .

Subsequently, defense counsel renewed his request to introduce evidence of the prior assault and to introduce psychologist Whitings expert opinion that a person who has been sexually assaulted in the past is more apt to fabricate a subsequent sexual assault. In an Evidence Code section 402 hearing, Whiting testified: [A] report of subsequent sexual assault by the victim [of an event like the November 23, 2002, assault], I would want to carefully evaluate for veracitys sake. . . . [] Its been my experience that victims of a sexual assault, given some of the parameters that Ive outlined, have made false allegations at times in the future when theyve been confronted by an analogous incident experience that mirrors to some degree the original assault. Whiting testified that his opinion was based solely on clinical practice inasmuch as there were no studies identifying the percentage of sexual assault victims who subsequently make false reports of a sexual assault; there were, however, studies that showed sexual assault victims have an increased likelihood of becoming victims of future sexual assaults. In response to questioning by the trial court, Whiting opined that a person who has been sexually assaulted in the past is more apt to fabricate a sexual assault: there is an increased risk of somebody making a false allegation if theyve been previously traumatized . . . . In excluding Whitings evidence, the trial court observed: Dr. Whiting sets back how the criminal justice system treats sexual assault victims almost 40 years. The trial court analogized the facts at issue here to those at issue in Espinoza. Moreover, noting that Whitings opinion was not based on any studies of the issue, the trial court found Whitings evidence to be more prejudicial than probative under section 352. We find no error.^[5]

Under Alvarez, the trial court did not abuse its discretion in concluding that evidence that Megan had been the victim of a prior sexual assault was no more relevant than was evidence that the victim in Alvarez had been the victim of a prior rape. And under Espinoza, the trial court did not abuse its discretion in concluding that Whitings opinion that sexual assault victims are more likely to fabricate allegations of sexual assaults in the future, was speculative and more prejudicial than probative.

B. There Was No Juror Misconduct

Defendant identifies two acts of alleged prejudicial juror misconduct which, he argues, necessitate a reversal. First, after the verdicts were delivered, Juror Nos. 2 and 5 told defense counsel that, during deliberations, another juror informed the panel that a Toyota truck of the model allegedly observed by [defendant] cannot, contrary to [defendants] allegedly false report, peal-out with both tires. That juror further informed the panel that he owned such a truck, and that it is only possible for that type of truck to peal-out with one tire. Second, these same jurors said that another juror disclosed during deliberations that he owned a house between the alley and Topanga Canyon Boulevard, which was the location of the events underlying the false report charge.^[6] We find no misconduct.

Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law. (People v. Karis (1988) 46 Cal.3d 612, 642.) Receipt of outside information raises a rebuttable presumption of prejudice. (People v. Stanley (2006) 39 Cal.4th 913, 950 (Stanley).) But jury members do not leave their life experiences at the jury room door. Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them. (Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 741-742.) For example, in Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 720 (Ducey), a personal injury suit brought against the state and the employer of the driver of a vehicle which crossed the freeway median and collided with the plaintiffs vehicle, our Supreme Court held that, in evaluating the evidence and applying the definition of dangerous condition contained in the judges instructions, the jurors were free to draw upon their own common driving experiences which might well have suggested to them that many traffic accidents, including cross-median accidents, occur without the negligence of any party.

Here, there was no evidence that the juror who made the observation about screeching tires made any independent tests of whether a Toyota could perform in the manner described in defendants report; rather, the evidence is that his observation and the subsequent casual comment, were drawn from his own driving experiences. Under Ducey, that comment did not constitute juror misconduct, especially considering the evidences tangential connection to the trial. We also agree with the trial court that whether one or both tires smoked was not germane. Obviously smoke coming from tire traction is transitory and at some times may appear in different areas near a vehicle. No reasonable jury, if it otherwise would have believed defendant, would disbelieve him based solely on his statement about the smokes origin.

With respect to the juror who realized during deliberations that he owned a house in the vicinity of the incident, there was no evidence that the juror shared with the panel anything more than that fact. Our independent research has found no authority, and defendant has cited us to none, that supports the proposition, implicit in defendants claim of juror misconduct, that prior familiarity with the location of a crime constitutes misconduct. Again, this is not a situation where a juror goes out to investigate the location of the events underlying the charge; on the contrary, the juror simply had a prior familiarity with the location. There is nothing in the record that suggests the jurors information related in any way to whether defendant could or could not have seen the truck from his vantage point.

DISPOSITION

The clerk of the superior court shall correct the judgment to reflect conviction of one count of sexual battery and forward a copy of the modified judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] Defendant was charged by indictment with two counts of sexual penetration by a foreign object under threat of authority (Pen. Code,  289, subd. (g)) (count 1 (Jane Doe) and count 2 (Megan F.)), one count of sexual penetration by foreign object on a person under the age of 18 years (Pen. Code,  289, subd. (h)) (count 3 (Megan)), and filing of a false police report (Pen. Code,  118.1) (count 4). A jury was unable to reach a unanimous verdict on the charge involving Jane Doe (count 1) but found defendant guilty of the lesser included offense of sexual battery (Pen. Code,  243.4, subd. (e)(1)) on the charges involving Megan (counts 2 and 3), and guilty of count 4. After defendants new trial motion was denied, he was sentenced to a total of two years six months, comprised of two years in prison on count 4, plus a consecutive six months in jail on count 2; a six month jail term was imposed on count 3 but stayed pursuant to Penal Code section 654.

^[2] The parties agree that the abstract of judgment should be corrected to reflect that defendant was convicted of just one count of sexual battery inasmuch as counts 2 and 3 charged different offenses arising out of a single act and defendant was convicted of the same lesser included offense on both counts. We agree.

^[3] Apparently, the prior incident involved a person representing himself as a security guard but in civilian clothing [who was] seen loitering around the school, was chased by these persons, [and who] was subsequently reported to having caused a similar incident earlier at that school. Defendant did not claim that the November 23rd incident was fabricated; he offered to stipulate that this incident did, in fact, occur.

^[4] The trial court in Espinoza noted that, since it was not a jury trial, there was no issue of confusing the jury. (Espinoza, supra, 95 Cal.App.4th at p. 1309.)

^[5] As to whether a victim of a prior sexual assault would be likely to confuse the first incident with a later one, the trial court asked Whiting: Youre saying if the police officer searches a womans belt line, she could perceive that as hands on her vagina or inside her vagina? Whiting replied: It is possible that she may be unconsciously provoked and stimulated and in a way because its analogous to the assault that she suffered at a previous time. Its possible. Whitings testimony implied its speculative nature. More often, Whiting went on to explain, the later accusations were fabricated. We find the mere possibility of the confusion that Whiting suggests to be inherently speculative and, as such, supports the trial courts conclusion that any relevance was far outweighed by the prejudice.

^[6] At the hearing on defendants new trial motion on the grounds of, inter alia, juror misconduct, defense counsel conceded that, once the juror realized, after looking at a photograph of the location near the end of trial, that he recently purchased investment property there, the juror said he did not go to the location again. Defense counsel had no evidence that the juror actually committed any misconduct.