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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. William McKee BLEDSOE, Defendant and Appellant.

Cr. 15121.

Decided: February 24, 1983

Michael R. Collins, Huntington Beach, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington and Patricia D. Benke, Deputy Attys. Gen., for plaintiff and respondent.

William McKee Bledsoe appeals his judgment of conviction for forcible rape (Pen.Code,1 § 261, subd. 2).   The jury found Bledsoe not guilty of assault with a deadly weapon (§ 245, subd. (a)) and did not use a deadly and dangerous weapon during the commission of the forcible rape.   The jury was unable to reach a decision on a charge of false imprisonment (§ 236);  thereafter the People dismissed that count.   Bledsoe was sentenced to the upper term of eight years in prison.


On November 13, 1981, Melanie, the 14-year-old victim, went to a party at a friend's home in Huntington Beach.   Although her mother drove her, it was planned for friend Skip to drive her home before midnight.   Bledsoe also attended this party.   During the evening Melanie consumed beer and cocaine;  Bledsoe drank beer.   Melanie missed her ride home and asked Bledsoe for a ride.   The two left for her home but stopped at his trailer for some money.   While in the car Melanie noticed a knife under the driver's seat.   When asked what it was for, Bledsoe replied it “came in handy.”   She was invited to enter the trailer and entered to use the bathroom.

Melanie testified to the details of the attack:  While she was zipping up her skirt in the bathroom, Bledsoe came up behind her and placed a rag over her mouth;  the odor from the rag made her feel dizzy;  he pulled her to the living room as she kicked and hit him;  freeing herself, she ran to the door;  he grabbed her, struck her with his hand and threw her onto the couch;  while straddling her, he used one hand to hold her down and the other to cover her mouth with the odorous rag.   During the struggle, a button was ripped from her skirt or blouse.

Melanie then explained in detail Bledsoe's threats:  he said he would cut her throat if she did not do what he requested;  he said there were other guys in the house who would do the same thing if she didn't cooperate;  he reached over the side of the couch, leading her to believe he had a knife there.   In sum, she believed his threats.

She then related what followed:  Bledsoe, his pants off, stripped her of her skirt and undergarments;  he announced he was “going to make her a woman.”   After removing a tampon from her vagina, he accomplished an act of sexual intercourse.

Following this assault, Melanie begged Bledsoe to return her to the party.   While waiting outside, she became dizzy and vomited.   While in the car she told him she would remain silent about what happened.   Bledsoe responded he didn't care, because what he had done was “right” and “good.”   Returned to the party, she immediately reported the rape to her friends.3  Melanie was crying, upset, and remained hysterical until the police took her to the hospital.

The attack left Melanie with a bruised eye, red welts under one ear, a swollen cheek, bumps on her head, a bruised hip and hand, and a sore throat.   Later, and as a result of the event, she experienced despondency, nightmares, bouts of crying, confusion and a general inability to make decisions.

Melanie received help for this emotional trauma from a rape counselor, Leslie Jacobson-Wigg, a licensed marriage, family and child counselor and a technical reserve officer with the Huntington Beach Police Department.   This counselor was called as an expert by the prosecution, over defense objection, to testify that Melanie suffered from “rape trauma crisis syndrome.”

Procedural Background

At the preliminary hearing, December 2, 1981, Melanie testified she had had sexual intercourse before.   Parenthically, she told Bledsoe, as he removed the tampon and boasted he was going to make her “a woman,” she had been molested before.   This testimony was adduced later at trial by defense counsel.

At the arraignment on the information, December 14, 1981, Bledsoe was still represented by the Public Defender.   On January 11, 1982, the Public Defender's Office declared a conflict and new counsel was appointed.   On January 26, 1982, another defense attorney was appointed.   The felony trial, scheduled for February 8, 1982, was then trailed until February 9, on which occasion Bledsoe waived time and the trial was continued to February 16, 1982.   Trial began that day.

Pursuant to the jury verdict, the trial court found Bledsoe statutorily ineligible for probation under section 1203.065, subdivision (a).   The court found circumstances in aggravation existed, stating “circumstances in aggravation include great violence, the threat of great bodily harm, and other acts disclosing a high degree of cruelty pursuant to Rule 421(a)(1) [Cal.Rules of Court].   The 14-year-old victim was particularly vulnerable pursuant to Rule 421(a)(3).”


1. Rape Counselor's Testimony:

Bledsoe contends the trial court erred in refusing to conduct an Evidence Code section 4024 hearing outside the presence of the jury to determine the admissibility of the witness' proffered testimony.

 Bledsoe's argument appears to rely, in part, on the court's retreating from an earlier indication or tentative ruling it intended to conduct an Evidence Code section 402 hearing.   We know of no rule preventing the trial court from changing its mind on a preliminary procedural ruling;  furthermore, he cites no authority for this proposition.   Bledsoe's argument also appears to rely, in part, on an abuse of the court's discretion in allowing the jury to hear evidence on the expert's qualifications before the trial judge ruled on whether the witness was qualified to testify as an expert.   True, the court had an obligation to find as a preliminary fact Ms. Jacobson-Wigg was a qualified expert, entitled to render an opinion as to whether Melanie suffered from the rape trauma crisis syndrome.   This it did.   And this it told the parties it was going to do, even though the jury was also going to listen to the witness' expert qualifications so as not to delay the trial proceedings.   The court explained to counsel:

“[I]f the court determines, in a hearing conducted before the jury, that the witness lacks qualification to form an expert opinion, the court will disallow the forming of opinion and information before the jury and the testimony would have no value and no meaning ․”

We find the court did not abuse its discretion;  indeed, it handled the preliminary fact request so as to preserve the rights of the objecting party and to ensure judicial economy.   An Evidence Code section 402 hearing was neither obligatory nor necessary.

 Bledsoe also contends the rape counselor's testimony was inadmissible,5 citing People v. Clark, 109 Cal.App.3d 88, 90, 167 Cal.Rptr. 51, and People v. Guthreau, 102 Cal.App.3d 436, 441–442, 162 Cal.Rptr. 376.   Clark and Guthreau, however, stand for the proposition an expert's testimony is inadmissible to support the reasonableness of the victim's resistance.   In the present case, the expert's testimony was offered to show Melanie was suffering from the rape trauma crisis syndrome.   Such testimony is relevant on whether the forcible rape, in fact, occurred.   It was not offered to show Melanie's resistance was reasonable.

In making our review on a case-by-case basis as we must (see, e.g., People v. Clark, supra, 109 Cal.App.3d 88, 167 Cal.Rptr. 51), we discover another important difference between the facts in this case and those in Guthreau and Clark.   Here, the relationship between Ms. Jacobson-Wigg and Melanie was that of therapist-client.   Melanie consulted Ms. Jacobson-Wigg independent of the Huntington Beach authorities.   Melanie was undergoing counseling with Ms. Jacobson-Wigg, having three or four one-hour sessions in the month period before trial.

In Guthreau, a “police expert on rape [testified] to the effect the degree of resistance displayed by [victim] was entirely reasonable under the circumstances.”  (Guthreau, supra, 102 Cal.App.3d 436, 441, 162 Cal.Rptr. 376.)   We are unable to glean from that brief fact statement the victim underwent any treatment with the police rape expert or, for that matter, she ever interviewed with the expert.   Aside from the expert's testimony on an irrelevant matter—the victim's resistance was reasonable—it appears the Guthreau expert was testifying in the abstract, rendering an opinion from a hypothetical.

The rape expert in Clark likewise testified from a hypothetical question based on assumed facts.   Once again there is no hint the victim consulted with or was treated by the expert.   Indeed, the Clark court wrote “[the expert] said a victim under similar circumstances was unable to effectively use self-defense for it would only irritate the assailant.”  (People v. Clark, supra, 109 Cal.App.3d 88, 92, 167 Cal.Rptr. 51.)   A permissible inference is the expert was not testifying with personal knowledge as to the victim's particular experience.

 We must be cautious not to give the prosecution an unfair advantage in otherwise weak rape cases 6 by permitting rape expert testimony in the abstract.   Even if the proffered testimony is relevant (i.e., an opinion as to whether the victim is suffering from the rape trauma crisis syndrome, as here, or whether the defendant reasonably believed the victim consented, as suggested in Guthreau ), nonetheless an abstract expert opinion in such a case may create a substantial danger of undue prejudice, confuse issues, or mislead the jury, requiring its exclusion under Evidence Code section 352.

In the present case, we find no such danger.   The expert's opinion was based on her personal knowledge of Melanie's physical, mental and emotional condition.   The professional treatment, from which the opinion comes, was not orchestrated by law enforcement.   Only after Bledsoe testified, contending Melanie consented, did the prosecution present Ms. Jacobson-Wiggs' opinion in rebuttal.   While her opinion no doubt reinforced Melanie's credibility, its purpose was to impeach Bledsoe's account of the incident.   We conclude the expert's testimony was properly admitted.

2. Melanie's Prior Sexual Conduct:

At the trial level, Bledsoe's counsel knew he was statutorily barred from asking Melanie about prior sexual experience to show consent.  (Evid.Code, § 1103, subd. (b)(1).)   Likewise, he knew it was difficult, and impossible absent a noticed motion, to impeach Melanie's credibility based on such prior conduct.  (Evid.Code, § 782.)   Accordingly, at trial and now on appeal Bledsoe contends Melanie's prior sexual conduct is relevant and admissible on the jury's sentencing prerogative under the lesser included offense of unlawful sexual intercourse.  (§§ 261.5 and 264.7  )

 Although not charged with unlawful sexual intercourse, on defense request the trial judge gave the section 261.5 lesser included offense instructions.   The issue is, can the defendant delve into the chastity and prior sexual experience of the minor prosecutrix in a forcible rape prosecution simply because unlawful sexual intercourse, i.e., with a female under eighteen, is a necessarily lesser included offense?

In answering this question, we make several observations.   The People correctly conclude Bledsoe's argument would be an “end run” around Evidence Code sections 782 and 1103.   These laws manifest a legislative intent to protect victims of forcible sexual assaults from being harassed or intimidated while testifying.   The People also point out the relevance of such prior sexual conduct with third persons is slight, at best.  (People v. Guthreau, supra, 102 Cal.App.3d 436, 444, 162 Cal.Rptr. 376.)   Since consent is not a defense to the lesser included offense of unlawful sexual intercourse, the only effect of the proffered evidence would be to show the victim was unchaste, thereby penalizing her rather than the defendant, who is on trial.   By implication, Bledsoe suggests he is entitled to the jury's largess for having violated a non-virgin.   He cites no authority for such a proposition;  we know of none.   Finally, if we were to accept Bledsoe's argument, we would end up with a curious result:  The sexual promiscuity of a minor victim would be admissible whereas, on the same facts, the sexual promiscuity of the adult victim would remain inadmissible.   This disparate treatment of victims could not have been contemplated by our Legislature.

We conclude the possibility of a conviction on a lesser included offense, considering the facts in this case, does not entitle Bledsoe to argue “sentencing” matters before a jury by attacking Melanie's chastity.

3. Incompetent Counsel;  Inadequate Representation:

 Once again we consider the claim of Pope 8 error.   Once again we apply the Pope standard:  did trial counsel fail to act in a manner expected of a reasonably competent defense attorney and did counsel's acts or omissions result in the withdrawal of a potentially meritorious defense?

Bledsoe first claims his trial counsel had insufficient time to prepare a defense.   Specifically, he contends rule 30 9 of the Orange County Superior Court Rules effectively prevented his third (and trial) attorney from noticing a motion under Evidence Code section 782 to have the court rule on the admissibility of Melanie's prior sexual conduct for purposes of impeaching her at trial.   A review of the trial record reveals trial counsel never attempted to attack Melanie's character.   Rather he sought to introduce the evidence of prior sexual contacts on the issue of “sentencing.”   Accordingly, the inability to make the suggested motion is immaterial;  counsel did not need the motion as a vehicle for what he was attempting to do.   Additionally, the defense was consent.   As previously discussed, Melanie's prior sexual conduct is irrelevant on that issue.   Bledsoe testified as to Melanie's consent.   That defense, although rejected by the jury, was presented, not withdrawn.   Bledsoe's bald complaint his attorney didn't have enough time to “properly evaluate the applicable defenses, review supporting case law and time to prepare motions and evaluate witnesses” calls for sheer conjecture as to whether he had effective counsel.   In any event, he has not shown how these omissions resulted in a withdrawal of a defense to the charges.

Bledsoe next complains his attorney failed to present corroborating witnesses.10  It is difficult to fathom what percipient witnesses counsel would have called since neither Bledsoe nor Melanie testified there were any third party witnesses.   Considering the circumstances and nature of the assault, it is unlikely there were any observers.   Bledsoe suggests there were other witnesses who saw Melanie kissing him, thereby relevant on the defense of consent.   However, no corroborating witnesses were necessary to the “kissing” incident since Melanie admitted kissing Bledsoe following the assault.

 Bledsoe further contends his attorney failed to argue a “critical” defense and to adequately rebut the prosecutor's characterization of the him as a predator.11  The latter contention goes to the effectiveness and style of counsel's argument to the jury but does not touch upon the “withdrawal of a defense.”   The former contention apparently refers to defense counsel's failure to emphasize to the jury Melanie's consent stemmed from self-intoxication at the party, not from marijuana supplied her by Bledsoe at his trailer.   Bledsoe testified, on direct examination, he gave Melanie marijuana cigarette(s) just before the act of intercourse.   This created a dilemma for defense counsel.   If he ignored this testimony, the jury might be unpersuaded Melanie consented.   If he reminded the jury of this testimony he ran the risk of fueling the prosecution's alternative theory under CALJIC No. 10.02: 12  if Melanie consented, but her lack of resistance resulted from drugs Bledsoe furnished her, there is no consent as a matter of law.

Under these circumstances, we can envision competent counsel making an election to forego reference to the marijuana testimony in his argument.   Perhaps defense counsel did not wish to emphasize the rather sordid picture of Bledsoe attempting to take advantage of a 14-year-old who he first plied with marijuana.   This is trial counsel's tactical choice which the appellate courts will not disturb.  (People v. Fain, 70 Cal.2d 588, 600, 75 Cal.Rptr. 633, 451 P.2d 65.)   In any event, Bledsoe's testimony about Melanie's consumption of marijuana was before the jury.   The consent defense was presented, not withdrawn.

 Finally, Bledsoe argues his trial attorney was incompetent for failing to object to a wide range of questions posed to the rape counselor and to Officer Shaner.   Without reviewing each contention,13 we are unable to discern how these alleged omissions resulted in a withdrawal of a defense.   Since the record in this area does not illuminate the basis for counsel's alleged errors, Bledsoe has not sustained his burden of showing ineffective assistance of counsel.  (People v. Camden, 16 Cal.3d 808, 816–817, 129 Cal.Rptr. 438, 548 P.2d 1110.)   Accordingly, habeas corpus proceedings are the appropriate vehicle rather than direct appeal.  (People v. Pope, supra, 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

We conclude Bledsoe has failed to show his trial counsel was incompetent.   Further, he has not shown his counsel's alleged actions or inactions withdrew a potentially meritorious defense.

4. Imposition of the Upper Term:

 Bledsoe contends the trial court did not articulate its reasons for imposing the upper term.   This argument is without merit.   As set forth in the procedural background, supra, the court listed four reasons.   They were, in part, stated in the language of rule 421(a)(1), California Rules of Court, and are ultimate facts required by rule 439(c).14  One fact alone—the 14-year-old was particularly vulnerable 15 —is a sufficient circumstance in aggravation to warrant the imposition of the upper term.  (People v. Covino, 100 Cal.App.3d 660, 670, 161 Cal.Rptr. 155.)   Bledsoe's authorities, People v. Hernandez,16 100 Cal.App.3d 637, 643, 160 Cal.Rptr. 607 and People v. Davis,17 103 Cal.App.3d 270, 163 Cal.Rptr. 22, are inapposite.   The trial judge committed no error.

Judgment of conviction is affirmed.

I dissent.

About six weeks after Melanie's confrontation with Bledsoe she consulted Leslie Jacobson-Wigg, a licensed marriage, family and child counselor for the State of California.   In overruling Bledsoe's objection to the therapist's testimony on foundational and relevance grounds, the court said:  “The relevance obviously is that a rape occurred and the continuing condition and strife of the alleged victim is further evidence of the fact that a rape occurred, as opposed to evidence that, in fact, a rape did not occur.”   Thus the testimony was admitted not only to enhance Melanie's credibility, but as circumstantial evidence to support the inference that Melanie had been raped.   In my view, the court prejudicially erred in receiving this testimony and accordingly I would reverse the judgment.

This court on two previous occasions has held the testimony from a “rape expert” is inadmissible in a criminal prosecution for forcible rape.  (People v. Clark (1980) 109 Cal.App.3d 88, 167 Cal.Rptr. 51;  People v. Guthreau (1980) 102 Cal.App.3d 436, 162 Cal.Rptr. 376.)   In urging the extent of prejudice had to be resolved on a case by case basis (People v. Clark, supra, 109 Cal.App.3d at p. 94, 167 Cal.Rptr. 51), we recognized in some cases the error in receiving the expert's testimony might be harmless.   Neither the rationale of that holding nor the opinion itself, however, suggests the result should turn on such distinctions as the form of the question which may be asked the expert.   Unlike the majority, I am unpersuaded this case can be truly distinguished from precedent.   Rather I see a striking similarity between the trial court's statement here (see dis. opn., p. 733) and what the deputy attorney general said in People v. Clark, supra, 109 Cal.App.3d at p. 94, 167 Cal.Rptr. 51:  “ ‘[I]t's essentially that the utilization of the expert in this case is merely to corroborate the testimony by the victim as to the subjective state of mind;  ․ I think that should be evident to increase essentially her credibility is all it really comes down to.’ ”  (Italics supplied.)   Because of this precedent and the scope of those holdings, I cannot agree with the majority.   But there are other reasons as well.

Initially I observe any testimony is inadmissible on the issue of credibility.  (See Jefferson, California Evidence Benchbook (2d ed.1982) vol. 2, § 2811, rule 4, p. 960.)   The only evidence that may be admitted to support a witness' credibility is evidence that tends to disprove the existence of the matter or facts introduced to impeach that witness.  (Ibid.)  Jacobson-Wigg could not have provided any information on this issue because she had no personal knowledge of Melanie's reputation.   Jacobson-Wigg could, however, provide circumstantial evidence to support the inference Melanie had been raped.

The threshold question properly presented to the trial court on Bledsoe's relevance objection was whether “rape trauma syndrome” had become sufficiently accepted in the scientific community for evidence on that subject to be admitted at trial.  (See People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)   In failing to address this issue, the trial court incorrectly assumed an affirmative answer to this question.   On a barren record, I believe it is inappropriate for me to speculate on what the answer should, or will be;  but it is clearly a question which must be answered before the evidence can be admitted.   One high court has expressly held:  “Rape trauma syndrome is not the type of scientific test that accurately and reliably determines whether a rape has occurred.”  (State v. Saldana (Minn.1982) 324 N.W.2d 227, 229;  see also State v. McGee (Minn.1982) 324 N.W.2d 232;  but contra State v. Marks (Kan.1982) 231 Kan. 645, 647 P.2d 1292.)   Whether our Supreme Court will reach a similar result will of course turn on the contents of a record that should properly be made in the trial court and the Supreme Court's evaluation of that record in light of the scientific information which may be presented.   A brief perusal of the literature indicates that this is indeed a highly debated and uncertain question.   Two leading textbooks in psychiatry recognize “post-traumatic stress disorder” as a neurotic disorder which occurs in response to severely stressful life-threatening situations.  (Freedman, Kaplan and Sadock, Comprehensive Textbook of Psychiatry (3d ed. 1980) 1517–1525;  American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed.1980) 236–238.)   Both texts mention rape only as one of a number of stressors which will cause post-traumatic stress.   Other stressors include combat, industrial accidents and other life-threatening situations “severe enough to be outside the range of human experience usually considered to be normal.”  (Freedman, Kaplan and Sadock, Comprehensive Textbook of Psychiatry, supra, at p. 1519.)

Even if I were to accept the trial court's assumption of scientific validity to “rape trauma syndrome” it is still necessary to determine whether Jacobson-Wigg had the requisite qualifications.   Unfortunately, without further definition of the scientific body of knowledge embracing the “rape trauma syndrome” it is impossible to determine what the alleged expert's qualifications should be.   In any event, it seems to me that something in addition to treating and observing the symptoms manifested by the tragic victims of rapes is necessary.   Scientific accuracy requires more, including not only substantive information on causes of trauma, but the controlled receipt of relevant data.

But independent of the foregoing, a court must also determine whether there is a need for expertise, and even if there is that need, weigh the probative value of the evidence against the possible prejudice.   I agree with Saldana which answered this question as follows:  “Because the jurors were equally capable of considering the evidence and determining whether a rape occurred, Dreyer's [the expert's] opinion was not helpful.   Her testimony was a legal conclusion which was of no use to the jury.   Furthermore, the danger of unfair prejudice outweighed any probative value.   Dreyer's testimony ‘gave stamp of scientific legitimacy to the truth of the complaining witness's factual testimony.’  [Citations.]”  (State v. Saldana, supra, 324 N.W.2d at pp. 230–231;  see also People v. Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240.)

The question remains, however, whether the trial court's error in receiving testimony from Jacobson-Wigg was prejudicial.   From the jury's perspective, this appears to have been a close case.   It started to deliberate late on the morning of February 24 and requested testimony and certain instructions to be reread that day.   When the jury returned the following morning and resumed deliberations it again asked for the rereading of some of the instructions, finally reaching a verdict on some of the counts in the early afternoon.   The impact of Jacobson-Wigg's testimony must have been dramatic.   In laying the foundation for her expertise, she described the severe psychological effects caused by rape on the substantial number of persons she had treated and then expressed her opinion that Melanie had suffered rape trauma syndrome.   In light of the verdicts returned, and the time necessary to reach those verdicts, I conclude it is reasonably probable that a different result would have occurred absent the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Therefore, I would reverse the judgment.



FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The relevant facts are not in dispute.   What follows is a compilation of relevant facts from the briefs, setting the stage for Bledsoe's several contentions.

3.   Several angry male friends of Melanie went to Bledsoe's residence to confront him.   He met them with a bayonet in hand, stating he “didn't do nothing,” all of this before any of the group made an accusation of rape.

4.   Evidence Code section 402 reads, in pertinent part, as follows:  “(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury;  but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.”  (Italics added.)

5.   Bledsoe also objects on appeal to Ms. Jacobson-Wigg's testimony on a two-fold foundational basis:  (1) the witness failed to qualify as a rape counselor expert, and (2) the science of rape counseling “has not progressed to the point of establishing for purposes of direct evidence whether the defendant had a reasonable belief consent was given.”   An examination of the trial court record reveals defense counsel raised only the relevancy and Evidence Code section 402 objections, not the foundational objections urged above.   Having failed to raise those objections below, Bledsoe may not now argue them.  (6 Witkin, Cal.Procedure (2d ed.1971) Appeal, § 276, et seq., pp. 276–277.)

6.   In making this statement, we do not mean to suggest the present case is weak.   The jury had for its consideration evidence of Melanie's injuries, her hysteria, Bledsoe's implied admission conduct/statement when confronted by Melanie's friends, and Bledsoe's unbelieved alternate defense he thought Melanie was 18 years old or older.

7.   At the time of the offense, section 264 read in pertinent part:  “Unlawful sexual intercourse, as defined in Section 261.5, is punishable either by imprisonment in the county jail for not more than one year or in the state prison, and in such case the jury shall recommend by their verdict whether punishment shall be by imprisonment in the county jail or in the state prison ․”   The jury's recommendation has since been deleted from the section.  (Stats.1981, ch. 110, § 2, p. 434.)

8.   People v. Pope, 23 Cal.3d 412, 424–425, 152 Cal.Rptr. 732, 590 P.2d 859.

FN9. Counsel have not supplied us with a copy of this rule.   Nevertheless, for the purposes of this opinion, we will assume appellate counsel's restatement of the rule is accurate, namely:  pretrial motions in criminal cases require notice to the other party within 10 days in advance for hearing on any Friday which is more than 15 days prior to the date of trial.   Bledsoe contends the late appointment of counsel who tried the case rendered making the motion by such attorney impossible.  (Refer to the time frame as outlined in the facts recited in the main body of this opinion.)   Respondent counsel does not controvert this factual impossibility..  FN9. Counsel have not supplied us with a copy of this rule.   Nevertheless, for the purposes of this opinion, we will assume appellate counsel's restatement of the rule is accurate, namely:  pretrial motions in criminal cases require notice to the other party within 10 days in advance for hearing on any Friday which is more than 15 days prior to the date of trial.   Bledsoe contends the late appointment of counsel who tried the case rendered making the motion by such attorney impossible.  (Refer to the time frame as outlined in the facts recited in the main body of this opinion.)   Respondent counsel does not controvert this factual impossibility.

10.   The plain assertion Bledsoe was prejudiced by his attorney's failure to call as witnesses persons who could verify Melanie's behavior at the party is wholly without merit.   First, trial counsel was able to cross-examine Melanie and other witnesses who had seen her at the party.   Second, her consumption of intoxicants was never in dispute.

11.   Bledsoe complains the prosecutor argued longer than defense counsel and saved his best argument for rebuttal.   We observe the number of words used has no relation to the persuasiveness of the argument.   Also, the prosecutor has the right to construe evidence in a light most favorable to the People.  (People v. Washington, 71 Cal.2d 1061, 1084, 80 Cal.Rptr. 567, 458 P.2d 479.)

12.   CALJIC No. 10.02, requested by the prosecution, was given.   It reads:  “[Defendant is charged in [Count I of] the information, with the commission of the crime of rape, a violation of Section 261 of the Penal Code.]“The crime of rape as charged against the defendant in this case is an act of sexual intercourse with a female person not the wife of the perpetrator, without her consent, when she is prevented from resisting by [intoxicating liquor] [an intoxicating narcotic] [an anesthetic substance] administered by or on behalf of such perpetrator.“In order to prove the commission of the crime of rape, each of the following elements must be proved:“1. That a person engaged in sexual intercourse with a female,“2. That the female was not his wife,“3. That she did not consent to such act of intercourse,“4. That she was prevented from resisting such act because she was drugged or intoxicated, and“5. That the drug or intoxicant was administered by or on behalf of such person.”

13.   The claim of incompetence for failure to object to the result of the warrantless search is disingenuous.   First, it was the defense attorney, over prosecution objection, who asked Officer Shaner about the search.   Second, there was good reason to ask:  the results of the search were negative.   Counsel succeeded in getting before the jury the fact that Bledsoe's trailer contained no incriminating evidence.

14.   This is a shorthand reference to facts and reasons which must be stated orally on the record by the sentencing judge as mandated by section 1170, subdivision (b), and California Rules of Court, rules 439(c) and 443.

15.   The trial court's statement comports with rule 443, which reads:  “Whenever the giving of reasons by the sentencing judge is required, the judge shall state in simple language the primary factor or factors that support the exercise of discretion or, when applicable, state that the judge has no discretion.   The statement need not be in the language of these rules.   It shall be delivered orally on the record.”  (Italics added.)   Accordingly, the People's invitation to consider the district attorney's statements in aggravation to explain or support the trial judge's statement is respectfully declined.

FN16. In Hernandez, the sentencing court stated it had considered a prior conviction and the probation department's recommendation, and there appeared no evidence in mitigation and considerable evidence in aggravation.   The reviewing court found this did not comport with rule 439(c) specifications and was tantamount to an incorporation by reference of the probation report..  FN16. In Hernandez, the sentencing court stated it had considered a prior conviction and the probation department's recommendation, and there appeared no evidence in mitigation and considerable evidence in aggravation.   The reviewing court found this did not comport with rule 439(c) specifications and was tantamount to an incorporation by reference of the probation report.

FN17. In Davis, the trial court didn't even disguise its shorthand incorporation of the probation report into the record.   In disapproving sentencing to the upper term in this manner, the appellate court explained the problems and confusion which might ensue on appeal..  FN17. In Davis, the trial court didn't even disguise its shorthand incorporation of the probation report into the record.   In disapproving sentencing to the upper term in this manner, the appellate court explained the problems and confusion which might ensue on appeal.

MOON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

COLOGNE, Acting P.J., concurs.