PEOPLE v. HOOKER (1988)

A jury convicted appellant Cameron Hooker of kidnapping, oral copulation, rape with a foreign object, sodomy, and six counts of rape.   (Pen.Code, §§ 207, subd. (a), 261, subds. (2), (3), 286, subds. (a), (c), 288a, subds. (a), (c), 289, subd. (a).) ¹  He was sentenced to an indeterminate term of 6 to 35 years and a determinate term of 69 years.   On appeal, Hooker contends that the lower court erred by (1) excluding evidence of his victim's prior sexual conduct;  (2) assuming the role of prosecution advocate when questioning a defense witness;  and (3) applying section 667.6 retroactively at sentencing.   We reject these contentions and affirm the judgment.

I. FACTS

This case, which has attracted great media attention, involves the kidnapping and repeated sexual assault of Colleen S. by appellant Cameron Hooker, an advocate of bondage discipline and sadomasochistic sexual practices, over the course of more than seven years.   Hooker had for several years practiced bondage on his wife Janice with her consent.   Later, Janice wanted to have a child and to avoid some of her husband's more painful bondage practices.   Hooker fantasized about “practicing bondage, ․ on a girl that really couldn't say ‘no’.”   The couple agreed that Hooker could keep a woman who would become the target of his bondage, but he was not to engage in sexual intercourse with this “slave.”

On May 19, 1977, while out on a drive with Janice and their eldest child, Hooker kidnapped twenty-year-old Colleen at knifepoint and took her to his house on Oak Street in Red Bluff, Tehama County.   Colleen was gagged, blindfolded, handcuffed, and her head was encased in a specially-constructed “headbox.”   That evening, Hooker stripped Colleen and hung her by her arms from the basement rafters.   It was very painful;  when Colleen cried and tried to find something on which to rest her feet, Hooker whipped her.   Through her blindfold, Colleen could see a magazine open to a picture of a woman who was hung much like she was.   After she had hung for 10 or 15 minutes, Hooker let her rest her toes on a box.   From under her blindfold, she could see Hooker and Janice having intercourse.   When they were finished, Hooker removed the box and hung Colleen for another 10 to 15 minutes.   Finally, he took her down, placing her in a box in the basement.   He chained her wrists, put the headbox on her head, and tied her feet to the box.

The next day, Hooker took her out of the box, put her on a homemade “rack,” and chained her wrists and ankles to the corners of it.   Hooker left Colleen this way until the following day.   During one of her first days in captivity, Hooker gave Colleen a meal that she was unable to finish.   Becoming angry with her, he hung and whipped her.   Once she finished this meal, Hooker put her back on the rack.

For the next five months, he kept her—naked, bound, blindfolded, and gagged—in the basement.   The first 7 to 10 days, Colleen was kept naked, chained to the rack, and wearing the headbox.   For the remainder of the first five-month period, Colleen—still naked, bound, and wearing the headbox—was kept in a coffin-like box in the basement, leaving it only once a day to eat, drink, urinate, and defecate, always in Hooker's presence.   During this time, Hooker regularly practiced bondage on Colleen, suspending her from the rafters, constricting her breathing, whipping her, keeping her head encased in the headbox, tying her to the rack, shocking her with electrical cords, burning her pubic area with a heat lamp, and immersing her in the bathtub until she was unable to breathe.   Colleen once estimated that Hooker hung her and whipped her 90 to 100 times in the first six months.

In October 1977, Hooker built a triangular-shaped box that fit under the stairs—the “workshop”—for Colleen to live in.   Until the Hookers moved from Oak Street in April 1978, Colleen spent her days chained and locked inside the workshop and her nights doing handwork or submitting to Hooker's bondage practices.

Hooker told Colleen of an underground organization called the “Company” that bought and sold slaves, and tortured those who tried to escape.   Its members were everywhere, he said, constantly watching slaves for signs of escape.   Colleen believed this tale, which Hooker had invented.   Hooker regularly threatened Colleen with the Company's wrath, which he said was a danger both to herself and to her family.   Hooker reinforced his story in many ways.   For example, in early January 1978, Janice went to the hospital for knee surgery, returning home wearing a brace.   Hooker told Colleen that Janice had once been a slave who had tried to escape from her master.   When she was caught, he said, the Company tortured Janice, causing damage to her legs.   Janice, fearful of Hooker, was afraid to tell Colleen that she had never been a slave.   She backed up Hooker's tale about the Company and its influence.

Later in January 1978, Hooker presented Colleen with a “slave contract” for her to sign.   This contract, copied from an underground newspaper, provided that Colleen was to be Hooker's slave—that he owned her soul.   When Colleen balked at signing it, Hooker told her that she had better do so—that a representative of the Company was waiting.   In tears, afraid of both Hooker and his Company, Colleen signed the contract.

After she signed the contract, Colleen was called “Kay” ² and was allowed upstairs.   At the defendant's instruction, she addressed Hooker as “Master” or “Sir” and called Janice “Ma'am.”   He also required Colleen to kneel, bow her head, and ask permission before doing anything.   Hooker placed a collar around Colleen's neck as a symbol of her slavery.   Eventually, this collar and a subsequent one wore out;  Hooker replaced them with an earring that he pierced through her right labia.

In the first few months, Hooker did not have sexual intercourse with Colleen;  he used her for bondage purposes, engaging in intercourse only with Janice.   In February 1978, Hooker had sexual intercourse with Colleen in Janice's presence.   Janice had suggested that this might excite her, but it only upset her.   After this incident, it appears that there was no sexual intercourse between Hooker and Colleen for some time.

In April 1978, the Hookers moved to a mobile home on Pershing Road, taking Colleen with them.   Hooker had built a pedestal for the waterbed in which he and Janice slept, with a special box constructed underneath it for Colleen.   For the rest of that year, Colleen spent all day and most of the night living in this box, being let out only late at night.   Colleen was allowed to have toilet paper, a bedpan, and a radio with her in the new box.   In September 1978, Janice gave birth to her second child at home on the waterbed while Colleen was in the box underneath it.

From April 1979 to January 1980, Janice worked nights after Hooker came home from his job.   During this time, Hooker let Colleen out of the box in the evenings to fix his dinner and wash the dishes.   In June 1980, Janice got a day job.   Hooker let Colleen babysit with the two children while he and Janice were at work.   During this time, Colleen spent her nights sleeping in the back bathroom, chained to the toilet.   This arrangement continued until February 1981, when Janice quit working because Hooker wanted to put Colleen back in the box.   During this period, Colleen was relatively free to do what she wanted when the Hookers were at work.   However, Colleen did not feel that she could leave, because the Company would track her down and torture her.

At home in the evenings, Colleen did some piecework for Janice's employer, an electronics company.   Colleen's salary was signed over to the Hookers.   In 1979 or 1980, some of Colleen's evenings were spent helping Hooker dig a large hole on their property while Janice, at her husband's instruction, stood guard.   The hole was lined with concrete blocks.   The project took two years to complete.

During her captivity, Hooker committed a series of sexual assaults on Colleen.   Colleen estimated that Hooker raped her once or twice a week from March 1980 to 1981.   The incidents that were charged at trial include the following:

1. In September 1979, while Janice and the two children were at a birthday party, Hooker sodomized Colleen.

2. Between October and December 1979—although it might have been in 1980—while Hooker and Colleen were away cutting posts, he forced her to insert a whip into her vagina.

3. Between January 1979 and October 1980—probably in 1980—Hooker forced her to orally copulate him when she was on the stretcher, a specially-constructed device to which her arms and legs were attached and pulled taut.

4. Between April 1979 and October 1980, Hooker raped Colleen in a shed near the mobile home.   Colleen was hanging suspended in the air at the time of this incident.

5. Between March and October 1980—but perhaps in 1979—Hooker raped Colleen while she was tied to his stretcher.

6. Between March and October 1980, Hooker raped Colleen while she was tied to the legs of a television set.

7. Between March and October 1980, Hooker raped her while she was attached to a frame, a four-sided imitation of a doorway.

During 1980, Colleen told Hooker that she loved him.   This was untrue, but she thought he might treat her better if he believed it.   She also told him so at another time because she was grateful for the little freedom he did give her.

Colleen often asked Hooker for permission to visit her parents.   She had been allowed to make a few telephone calls to her family in 1980, under Hooker's supervision.   While Janice was still working in February 1981, she learned that Hooker planned to take Colleen to Riverside the following month.   Before the trip, Hooker told Colleen that he had to get permission from the Company and put up a $30,000 security deposit to cover the Company's cost of watching Colleen and her family.   A week before the trip, at Hooker's instruction, Colleen told the children and the neighbors that she was leaving.   Hooker drove off as if he were taking her to the bus station, but smuggled her back to the mobile home and put her into the box under the waterbed.   As a test of her obedience, Hooker had Colleen place a gun in her mouth and pull the trigger.   The gun was empty.

In mid-March 1981, Hooker took Colleen to Riverside for two days.   On the way, they stopped in Sacramento at “Company headquarters.”   Hooker had told her that before they went to Riverside, the Company would test her and would make her take a lie detector test.   Colleen was nervous about being able to pass a lie detector test.   In Sacramento, Hooker left Colleen in the car, returning a while later with the news that the Company had waived the test requirement.

In Riverside, Colleen saw many members of her family and was left alone with them at times.   Hooker posed as her boyfriend.   Colleen wanted to tell her family the truth, but she was afraid that the Company would kill them.   When they returned from Riverside, Janice was not at home.   Hooker raped Colleen and put her back in the box under the waterbed.

When Hooker brought Janice home, she learned that Colleen was back in the box.   From March 1981 until May 1984, Colleen lived in this box.   During most of this time, Hooker let Colleen out only for short periods each evening, although there were some nights when she was allowed out all night.   For years, the Hooker children were unaware of Colleen's presence in their home.

Hooker regularly threatened Colleen with the Company's wrath, which she feared even more than she feared Hooker.   He told her that their telephone calls were monitored by the Company and his home was being watched;  the same was true for the homes of Colleen's family in Riverside.   Colleen believed this.

In April 1982, Janice was hospitalized for more knee surgery.   While Janice was away, Hooker raped Colleen.   The same year, Hooker admitted to Janice that when he was practicing bondage on Colleen, he was also having intercourse with her.   Janice was upset and hurt by this revelation.

In late 1982, Hooker required Janice to read the Bible to him.   He pointed out the passages that required wives and slaves to be submissive.   Janice felt helpless, and believed Hooker when he told her that if she did not obey him she would go to hell.   In 1983, Hooker told Janice that he was preparing dungeons in order that he might keep as many as four slaves.   He continued to tell Janice this until August 1984.   Janice was upset by this news, and by further revelations of intercourse with Colleen.

At the end of 1983, Hooker put Colleen in the hole that they had dug.   After a week, it began to rain and the hole began to fill with water.   Janice took Colleen out of the hole and put her in the box under the bed.   Three weeks later, Hooker put Colleen back in the hole.   She was there about a week before the Hookers began to suspect that a child had seen Colleen in the hole.   Colleen was placed back in the box under the bed.

In January 1984,³ Colleen was allowed more freedom.   She was let out of the box at night, sleeping in the back bathroom.   However, she still believed that the Company posed a threat to her.   In May, Colleen began to work as a maid at the King's Lodge, a hotel in Red Bluff a few miles from the mobile home.   Sometimes, Janice drove her to work;  sometimes Colleen rode a bicycle.   Colleen gave her paychecks to Hooker, who gave her about $20 spending money.

Five or six times in July, Hooker had intercourse with one of the two women while fondling the other.⁴  He told Janice that Colleen was his slave wife, comparing his slave to Abraham's biblical servant Hagar.   Janice participated in these acts because she thought she had to do so or go to hell.   That same month, Hooker announced that he would have intercourse with Colleen and Janice on alternate nights.   Neither of the women liked this arrangement, but each felt she had to submit to it.

Also in July, Colleen began to attend church, sometimes with Janice.   Janice began to tell the church pastor how they had been living for the past seven years.   He advised Janice to send Colleen home, leave Hooker, or turn him in to the authorities.

By August, Janice thought she was having a nervous breakdown.   On August 9, Janice took Colleen to work at the hotel and went to visit the church pastor.   He advised that both of the women should leave.   Janice went back to the hotel, found Colleen, and told her for the first time that there was no Company.   Colleen was devastated by this news;  Hooker had made the threat of the Company seem real to her.   The two women visited the pastor again before returning to spend the night in the mobile home.   Janice did not tell Hooker that Colleen knew he had lied about the Company;  she was afraid he would kill them.

On August 10, after Hooker went to work, Janice and Colleen took the children, and went to Janice's parents' house.   Colleen called her own parents and arranged for them to wire her busfare.   The next day, Colleen left for home, after calling Hooker from the bus station.   She told him that she was leaving—that there was nothing he could do to keep her there anymore.   The next morning, Colleen's family met her in Riverside.   In response to her family's inquiries, she told them some of the cause of her seven-year absence.

Meanwhile, Janice had moved back into the mobile home with Hooker after a week apart.   Hooker attended church with her for a while and Janice urged him to obtain counseling.   At Janice's request, the Hookers destroyed some of his bondage paraphernalia in late August or early September.   Janice also hid some other items that were not destroyed.   She was afraid that Hooker would use them on her because she had let Colleen go.   Unable to eat and sleep in the mobile home, Janice returned to her parents' home on September 28.   Her anxiety attacks stopped as soon as she moved out.

In the next few months, Colleen continued to communicate, by letter and telephone, with Janice and Hooker.   Janice asked Colleen not to go to the police, because she wanted to give him a chance to straighten himself out.   Colleen agreed to this request.   Both Hooker and Janice were very concerned about whether Colleen would contact the police.   Colleen's family was pressuring her to turn them in, but at this point, Colleen was grateful to have been released and wanted to forget the entire incident.

On November 1, Janice went to the mobile home to see if Hooker had destroyed the rest of his bondage paraphernalia.   He had not.   On November 7, a friend in whom she had confided suggested that Hooker might hurt Janice or the children.   Later that day, she talked again with her pastor, who contacted law enforcement officials.

In Tehama County, Hooker was charged with kidnapping, false imprisonment, and multiple sex offenses.   Venue was moved to San Mateo County.   An information was filed charging Hooker with one count of kidnapping with use of a deadly weapon, three counts of false imprisonment, seven counts of forcible rape, two counts of abduction for illicit relations, and single counts of forcible sodomy, forcible oral copulation, and penetration with a foreign object.  (§§ 207, 236, 261, subd. (2), 266b, 286, subd. (a), 288a, subd. (a), 289, subd. (a), 12022, subd. (b).) ⁵  Hooker pled not guilty to all charges.

Before trial, Hooker argued that he should be allowed to introduce evidence of Colleen's life before her kidnapping, including evidence of prior sexual conduct.   The trial court ruled this evidence inadmissible.

At trial, Janice and Colleen were the key prosecution witnesses.⁶  Janice's testimony was punctuated by emotional outbursts, but Colleen's delivery was flat and unemotional.   Corroborating evidence was provided by the Hooker's neighbors and children, Colleen's sister, and the pastor who counseled Janice and Colleen.   The trial court admitted into evidence over 100 pieces of physical evidence introduced by the prosecution, including the headbox, photographs of Colleen in bondage, a copy of the slavery contract, the waterbed pedestal and its concealed box, and the stretcher.

Colleen and Janice did disagree about whether Janice had invited Colleen to leave years before she actually did.   Janice testified that before Colleen went to Riverside in March 1981, she told her she could go, but Colleen said “God doesn't want me to go yet.”   Colleen denied that this ever happened, but testified that Hooker had told her that God put her with him to straighten out her life.

Two expert witnesses also testified for the prosecution—a physician who examined Colleen after she left Red Bluff, and a psychologist who offered his opinions about Colleen's captivity and her reactions to Hooker's treatment.   The psychologist listed a number of factors that led him to conclude that Colleen was coerced into remaining with Hooker and obeying him.   He explained how Hooker's conduct—abducting Colleen suddenly, isolating her, removing her clothes, abusing her, removing her from daylight, controlling her food and water intake, controlling her urination and defecation, creating an atmosphere of total dependency, requiring her to ask permission for everything, threatening her family, threatening to sell her to another captor who might treat her even worse, torturing her, obtaining her signature on the slave contract, and establishing a new life pattern for Colleen—was an effective technique to coerce a victim into giving up any overt resistance to the captor.   He also explained that information about such techniques were available in bondage discipline and sadomasochism literature, with which Hooker was familiar.   Finally, the psychologist suggested that it would take one such as Colleen some time after return to a normal life before being able to confront and accuse her captor.

Hooker testified in his own behalf.   He admitted kidnapping Colleen, keeping her in a box, and engaging in some bondage with her, but he insisted that Colleen consented to all of the charged sex acts.   He offered two defenses to the sex offenses charged—Colleen's consent and his reasonable belief that she consented.   He also contended that the detention of Colleen was not continuous—that Colleen could have left at various times but chose to stay because she loved him.   He acknowledged lying to Colleen about the Company, but said that a few months before they moved to the mobile home, he told her that he had bought out her contract.   However, he also agreed with the testimony of prosecution witnesses that Colleen did not know that Hooker was not a member of the Company until August 1984.

Other defense witnesses were members of Hooker's family, a neighbor, and a psychiatrist who offered expert testimony about whether Colleen was coerced into committing the charged sex acts.   Dr. Donald T. Lunde opined that Colleen was not coerced because she was not in physical captivity for the entire seven-year period, which he thought was an essential requirement of coercion.   He also testified that it was not reasonable for Colleen to believe in the existence of a slave underground such as the Company.   He suggested, instead, that Colleen stayed in the Hooker home because she had fallen in love with the defendant and the children who were often left in her care.   To corroborate this theory, Hooker placed into evidence several letters from Colleen to Hooker, as well as telephone records establishing the calls she made to the Hookers after she left Red Bluff.

At one point in his testimony, Dr. Lunde referred to “attention drills” that Hooker forced Colleen to perform, likening them to similar drills required of Marine Corps recruits.   At the end of the questioning by counsel, the trial judge questioned the doctor about this reference.

Eventually, the jury found Hooker guilty of kidnapping with use of a deadly weapon, forcible oral copulation, penetration with a foreign object, forcible sodomy, and six counts of rape.   The only remaining charge, the seventh count of rape, resulted in a hung jury;  this count was dismissed.   The defendant was sentenced to an indeterminate term ⁷ of one to 25 years for the kidnapping, with a consecutive term of five to ten years for the weapon use enhancement, to be followed by a 69–year determinate term in state prison for the remaining offenses.   Hooker filed a timely appeal from the judgment.

II. VICTIM'S PRIOR SEXUAL CONDUCT

First, Hooker contends that the lower court erred by refusing to admit evidence of his victim's prior sexual conduct.   At trial, Hooker had sought to admit a writing in which Colleen had described her past.   Colleen prepared this document in 1980 at Hooker's instruction, in order to avoid being punished.   The trial court ruled this writing inadmissible for three reasons:  it had limited relevance, section 1103 of the Evidence Code specifically prohibited its admission, and the conditions under which Colleen produced the document satisfied the trial court that the writing was coerced.   On appeal, Hooker criticizes each of these reasons, claiming that exclusion of this evidence prevented him from having a full and fair opportunity to establish that Colleen consented to the charged acts, prevented him from proving that it was reasonable for him to believe that she consented to have sex with him, and gave Colleen a false aura of credibility in the eyes of the jury.

 Clearly, section 1103 of the Evidence Code prohibits introduction of this evidence to establish consent.  (Evid.Code, § 1103, subd. (b)(1);  see People v. Jordan (1983) 142 Cal.App.3d 628, 632, 191 Cal.Rptr. 218.) ⁸  Hooker contends that this statutory prohibition must yield to his constitutional rights to due process—his right to confront his accuser, to cross-examine her, and to present a defense.   In effect, Hooker raises a constitutional challenge to this statute.   However, the “limited exclusion [of section 1103 of the Evidence Code] no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay, opinion evidence, and privileged communications․  In those situations, policy considerations dictate that the evidence be excluded, and those policy considerations are deemed incorporated within the definition of a fair trial.”  (People v. Blackburn (1976) 56 Cal.App.3d 685, 690, 128 Cal.Rptr. 864).   These same cases characterize the relevance of a victim's past sexual conduct with persons other than the defendant to the issue of her consent to sexual intercourse with the defendant as “slight at best” and reason that exclusion of evidence of such limited relevance cannot deprive a defendant charged with rape of a fair trial.  (Id., at pp. 690–691, 128 Cal.Rptr. 864;  see People v. Fleming (1983) 140 Cal.App.3d 540, 544, 189 Cal.Rptr. 619, disapproved on another point in People v. Craft (1986) 41 Cal.3d 554, 562, fn. 4, 224 Cal.Rptr. 626, 715 P.2d 585.)

In addition to its reliance on the evidence's limited relevance and the specific prohibition on admissibility contained in the Evidence Code, we concur with the trial court's conclusion that this evidence should have been excluded because it was “coerced”—in other words, that it was not reliable because of the circumstances under which Colleen prepared it.⁹  Colleen's testimony established that she wrote this document out of fear of Hooker.   This coercive atmosphere tainted the reliability of the proffered evidence much like police coercion can taint a criminal defendant's confession (see People v. Hogan (1982) 31 Cal.3d 815, 841, 183 Cal.Rptr. 817, 647 P.2d 93), and the trial court was within its authority to exclude it.

 Hooker also contends that this evidence was relevant to his alternative defense of reasonable belief in his victim's consent.  (See People v. Mayberry (1975) 15 Cal.3d 143, 153–158, 125 Cal.Rptr. 745, 542 P.2d 1337 [defendant's mistake of fact about victim's consent, if reasonable, is defense to rape].)  Section 1103 of the Evidence Code prohibits exclusion of such evidence when offered to prove consent, but is silent on whether admission is proper if the defendant asserts a reasonable belief in the victim's consent.  (See Evid.Code, § 1103, subd. (b)(1).)   We have been unable to find any cases discussing the interrelationship of the Mayberry defense and this statutory provision.   However, the policy reasons that support exclusion of this evidence when offered to prove consent apply with equal force when the evidence is offered to prove a reasonable belief in the victim's consent.   In addition, if the statute did not extend to ban admission of evidence when offered to prove a Mayberry defense, its impact in consent cases would soon be circumvented by defendants alleging both defenses as a matter of routine.   For these reasons, we find that the statutory prohibition of section 1103 of the Evidence Code applies equally to the defenses of consent and reasonable belief in consent.

 On the issue of Colleen's credibility, Hooker contends that if the jury had heard the proffered evidence, it “would have had an entirely different picture of Colleen” than the one offered by the prosecution.   This argument would apply equally well to the other two defenses, but assumes that the jury was ignorant of any details of Colleen's past.   In fact, in support of his consent defense, Hooker testified about what Colleen had told him of her past.   For example, he testified that Colleen told him that she used drugs, that her mother had kicked her out when she was 13, that she had been married at age 16 and was divorced, that she did not get along with her family, that she had been associated with a motorcycle gang, and that before she was kidnapped she was being supported by someone who was on welfare for a time.   He also testified that she was hitchhiking and appeared to be on drugs at the time of the kidnap.   Hooker was not allowed to cross-examine Colleen about her past, however.

Section 782 of the Evidence Code specifies the procedure to be followed when a defendant offers evidence of a victim's prior sexual conduct on the issue of credibility.   This provision vests the trial court with broad discretion to weigh the evidence and resolve the conflicting interests of the victim and the defendant.   It also reaffirms the role of Evidence Code section 352 in authorizing the trial court to exclude relevant evidence that is more prejudicial than probative.  (People v. Casas (1986) 181 Cal.App.3d 889, 895–896, 226 Cal.Rptr. 285;  People v. Rioz (1984) 161 Cal.App.3d 905, 916, 207 Cal.Rptr. 903.)   In this case, the trial court ruled that the evidence was of only slight relevance, clearly outweighed by its prejudicial impact.   We are satisfied that the trial court did not abuse its discretion in excluding this proffered evidence—Hooker's apparent attempt to divert attention from his own crimes committed during the relevant seven-year period by putting Colleen on trial for the manner in which she conducted her life before this time.

III. JUDICIAL QUESTIONING OF DEFENSE EXPERT

Next, Hooker claims that the trial court improperly assumed the role of prosecution advocate when questioning Dr. Donald Lunde, a defense expert witness.   Dr. Lunde offered a lengthy testimony, including the opinion that “attention drills” that Hooker forced Colleen to perform were similar to drills required of Marine Corps recruits.   The trial judge, stating that he was confused by some of the doctor's testimony, asked him whether he equated other specific allegations of Hooker's treatment of Colleen to Marine Corps boot camp training;  and whether Colleen's belief that she was Hooker's captive, even when beyond his immediate physical presence, was reasonable.¹⁰  On appeal, Hooker contends that “the court, by its questions, clearly aligned itself with the prosecution and assumed the role of an advocate.” ¹¹

Initially, we note that Hooker did not object to the trial court's questions during questioning nor afterwards in the form of a motion for mistrial.   It is well-settled that a judge's examination of a witness may not be assigned as error on appeal when no objection was made when questioning occurred.   (People v. Corrigan (1957) 48 Cal.2d 551, 556, 310 P.2d 953;  People v. Worthy (1980) 109 Cal.App.3d 514, 527, 167 Cal.Rptr. 402.)

 Even if we address the merits of Hooker's claim, we find no error.   A trial judge has a statutory right to question witnesses the same as if they had been produced by a party to an action.   The parties may object to questions asked by the judge and the evidence adduced the same as if the witnesses were examined by an adverse party.  (Evid.Code, § 775.)   While great caution should be used in its exercise, the trial court's discretion to invoke its statutory right will be not disturbed on appeal unless is appears that the manner in which the judge questioned the witness tended unduly to impress the jury with the importance of the testimony elicited, or would be likely to lead the jury to suppose that the judge was of the opinion that one party rather than the other should prevail in the case.  (People v. Flores (1952) 113 Cal.App.2d 813, 818, 249 P.2d 66.)

 Before his examination, the judge indicated that his questions were intended to clarify testimony that Dr. Lunde had already given.   This is borne out by the fact that the questions themselves were pertinent to the matters in dispute.   After careful review of these questions, we find that they were not phrased in a manner that would tend to convey to the jury that the judge did not believe the witness.   The trial court did not abuse its discretion in asking these questions.

Having reviewed the three thousand pages that constitute the transcript of this trial, we note that the trial judge conducted what could have been a highly charged proceeding in an even-handed fashion.   His rulings favored neither prosecution nor defense and, except for the few questions put to Dr. Lunde, he did not inject himself into the trial.   We believe that this overall performance bolsters our conclusion that the examination of the defense expert was proper.   In addition, the jury was instructed before deliberation that it should consider the credibility of the expert witnesses and give the testimony of such witnesses the weight to which it found the testimony to be entitled.   The jury was advised that the judge did not intend by any of his questions to suggest what it should find to be the facts or what the judge believed about the credibility of any witness.   The court specifically instructed the jury to disregard any such indication and form its own opinion.   Absent evidence to the contrary, we must presume that the jury followed these instructions.   (People v. Hunt (1915) 26 Cal.App. 514, 517, 147 P. 476;  see People v. Martin (1983) 150 Cal.App.3d 148, 163, 197 Cal.Rptr. 655, cert. den. 469 U.S. 930, 105 S.Ct. 323, 83 L.Ed.2d 60.)

 Even if we were to assume that the trial court's questioning was improper, any error would be necessarily harmless.   The corroborative effect of Janice's testimony on Colleen's version of her seven-year captivity, combined with Hooker's admissions of the initial kidnapping, his acts of bondage against Colleen, and his creation of the Company, provide overwhelming evidence of Hooker's guilt of the disputed charges.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, cert. den. 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55.)

IV. CONSECUTIVE TERMS

Finally, Hooker contends that the sentencing court erroneously applied section 667.6 and imposed fully consecutive terms for offenses committed before the effective date of that statute.   This contention affects five counts:  the rape on the stretcher, the rape in the shed, the oral copulation on the stretcher, the penetration with a foreign object after cutting posts, and the sodomy on or about the date of the younger Hooker child's first birthday.   The information charges that four of these offenses occurred on dates ranging from before the January 1, 1980 effective date of section 667.6 (see Stats.1979, ch. 944, § 10, p. 3258;  see also Gov.Code, § 9600, subd. (a)) to dates after the effective date.   On the sodomy count, the amended information alleged that the offense had been committed in September 1979.   On each of these counts, the lower court, applying subdivision (d) of section 667.6, sentenced Hooker to full, separate and consecutive terms.   On appeal, Hooker contends that section 667.6 could not be applied to these five counts because the allegations of the information that the jury found to be true by its verdicts did not specify that the offenses were committed after January 1, 1980.

 In effect, Hooker contends that the jury must find that the offense was committed after the effective date of section 667.6 in order for that provision to apply.   He is correct that the trier of fact at the guilt phase must find the fact which invokes the full-force terms of section 667.6.  (People v. Cortez (1986) 187 Cal.App.3d 1152, 1156, 232 Cal.Rptr. 374.)   Cortez requires a jury finding that the applicable definitional language of section 667.6 is true before the trial court may invoke it.   Hooker does not claim that his jury failed to make such definitional findings.   Instead, the issue on appeal is whether the jury must find another fact—that the offense was committed after the operative date of section 667.6.   As this fact is not part of the definition of this statute, Cortez does not assist us in determining this question.

The full-force sentencing provisions of section 667.6 do not constitute an enhancement that must be proven or pleaded.   As the advisory committee comments to the rules of court state, while the facts giving rise to most enhancements must be charged and found, “enhancement arising from consecutive sentences results from the sentencing judge's decision to impose them, and not from a charge or finding.”   The same is true of consecutive sentences imposed pursuant to section 667.6.   This provision affects the length of the consecutive sentence.   It does not change the fact that the consecutive term is imposed for the underlying crime that has clearly been charged in the information.   There is nothing else to charge or find other than that the defendant committed the crime of which he had notice.  (People v. Reynolds (1984) 154 Cal.App.3d 796, 810–811, 201 Cal.Rptr. 826;  see Advisory Com. Comment, Cal. Rules of Court, rule 405.)   As such, we believe that the judge properly decided the issue of whether the crimes were committed after January 1, 1980, in order to determine whether it could invoke section 667.6.

 In McMillan, the United States Supreme Court reviewed a Pennslyvania statute that required the sentencing court to impose a minimum five-year prison term if the court found that the defendant “visibly possessed a firearm” during commission of the offense.   Then-Justice Rehnquist described the statute as one that “operates to divest the judge of discretion to impose any sentence of less than five years for the underlying felony;  it does not authorize a sentence in excess of that otherwise allowed for that offense.”   (Id., at p. ––––, 106 S.Ct. at p. 2414, 91 L.Ed.2d at p. 73.)   In effect, this is what subdivision (d) of section 667.6 does;  it eliminates the lower court's discretion to impose consecutive terms calculated on the basis of one-third of the middle base term by requiring that certain defendants serve full, consecutive terms for certain offenses.   Neither statute creates a new penalty;  both simply require the sentencing court to impose a fuller measure of the statutory penalty than the court might otherwise select.   As the Pennsylvania law at issue in McMillan was held not to “[alter] the maximum penalty for the crime committed” but merely to limit “the sentencing court's discretion in selecting a penalty within the range already available to it” (id., at p. ––––, 106 S.Ct. at pp. 2417–18, 91 L.Ed.2d at p. 77), then subdivision (d) of section 667.6 may also be characterized in this fashion.   The trial court finding that the offenses were committed after January 1, 1980 may be made by a preponderance of the evidence.

In the alternative, Hooker contends that the evidence adduced at trial does not establish that the offenses were committed after January 1, 1980, and that, in fact, Colleen's testimony tended to establish that the offenses were committed before this date.   Therefore, he reasons, the application of section 667.6 violated the constitutional prohibition against ex post facto laws.  (See Weaver v. Graham (1981) 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17;  In re Ramirez (1985) 39 Cal.3d 931, 936, 218 Cal.Rptr. 324, 705 P.2d 897, cert. den. ––– U.S. ––––, 106 S.Ct. 2266, 90 L.Ed.2d 711 (1986);  see U.S. Const., art. I, § 10;  Cal.Const., art. I, § 9.)

For the most part, we disagree with Hooker's conclusion.   The record contains substantial evidence to support the trial court's implied conclusion that four of the five offenses—the penetration with a foreign object while cutting posts, the oral copulation on the stretcher, the rape in the shed, and the rape on the stretcher—were committed after January 1, 1980.   We have already concluded that making this determination was a proper judicial function at sentencing.   Therefore, as to these four counts, there was no ex post facto violation.

 On the sodomy count, the offense was charged to have been committed in 1979, before the effective date of the statute.   Although application of section 667.6 to the sodomy count was error, it was harmless.   At sentencing, the judge indicated his intent to sentence Hooker to the maximum term possible.   If the sentencing court had properly concluded that it could not give full, consecutive terms for this single offense, it would simply have made the sentence for the sodomy, rather than that for the rape on the stretcher, the principal term in the determinate sentence, resulting in an identical term.   As such, it is not necessary for us to remand this case for resentencing.  (People v. Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243;  People v. Preyer (1985) 164 Cal.App.3d 568, 577, 210 Cal.Rptr. 807;  People v. Skenandore (1982) 137 Cal.App.3d 922, 925, 187 Cal.Rptr. 368.)

The judgment is affirmed.

APPENDIX A

“THE COURT:  Doctor, I was kind of confused yesterday by a couple of things.

“Was it your testimony yesterday that it's your understanding that what the victim in this case was subjected to was basically equivalent to Marine Corps boot camp training?

“THE WITNESS:  That answer was in reference to questions about attention drills, coming to attention on command;  and I said that aspect, that type of drill, was reminiscent of Marine Corps training.

“Then there was a question—

“THE COURT:  You didn't intend to equate what happened here to Marine Corps boot camp training, did you?

“THE WITNESS:  No.   It was a specific aspect, namely, the attention drills, being called to attention and having to hop to a stand-up-straight position.

“THE COURT:  I think you also referred to it in connection with the attempted drowning of Colleen [S.]   Do you equate that with Marine Corps drills?

“THE WITNESS:  No, I don't equate the overall experience.   It's the episode of having some similarity.   But obviously[,] there are significant differences between Marine Corps training and this experience.   There are some similarities ․ such as the indoctrination, the control of what time you go to bed and what time you get up, bodily functions, when you go to the bathroom, those types of things.   Those are similarities.   But there are differences.   You are in the hands of what you know to be government society-sanctioned agencies.   You know the time in which you are getting out.   Those are differences.   You can make phone calls, write letters, even though you are confined.   So I would say by no means they are identical.

“THE COURT:  You do equate it to a certain degree?

“THE WITNESS:  There are similarities, sure.   The government has people who know about these things and how you mold the opinions and behavior and so on to get a group of young men, 18, 19 years old, to become a cohesive unit and want to go out and do something that presumably they have never done in their lives, and can be killed or be prepared to kill.   And there are certain techniques and there are some similarities in techniques and that certainly is not a matter of secret information or anything.

“THE COURT:  There is one other thing I didn't understand.

“In regard to this business of Riverside, is it your testimony that a captor, who imposes coercive persuasion and threats on the victim, could never ever let that victim go home and expect to retrieve 24 hours later?

“THE WITNESS:  Oh, I think—no, I don't think that's inconceivable.   I think that again, depending on things you have mentioned earlier, the reasonableness ․ of what has been told to the person, the basis for their believing or not believing certain things—

“THE COURT:  Well, Doctor, what may appear to be reasonable to a person would depend a lot on what they are told, isn't that true?

“THE WITNESS:  Yes.   But if you figure this person in the hypothetical has had 20 years of experience in this society and schools and so on versus a much lesser number of years with the captor, presumably absent the conditions I mentioned of mental illness or something, those things would still stand them in good stead in terms of having some awareness that, you know, basically out there, there are agencies, police and so forth, that represent the law and are here to protect me and, if I ever get a chance to tell somebody or get to a phone, I will make use of it.   That assumes a person wants to get away.

“THE COURT:  So every rational victim would immediately call the police regardless of the threats that were made?

“THE WITNESS:  Oh, I think, if they want to get away, sure.

“First, they are being made, in the hypothetical here, the person is threatened in captivity;  is threatened with torture and injury and death.   Surely they are going to try to make contact with the police, or what have you, when they are freed because that's the best chance they have if they genuinely believe, if they go back into captivity, then they are certainly going to be subjected to these things, then taking the risk, ‘Well, I might or might not get caught,’ and report it.

“THE COURT:  That's regardless of what threats were made?

“THE WITNESS:  Well, I think if they—yes, if the person it free of all, as presumed in the hypothetical, if they are actually free at the moment from any people who can execute the threat, that's the sequence presented to me, a person is home with a family with nobody around, there were no guards around, no people with guns keeping an eye on her or whatever, she has a chance then to decide, in writing or verbally, to convey to people, if she wanted to, that ‘Hey, I am being held prisoner.   I am being tortured.   Someone might kill me.   Help me.’

“Out there is the best chance a person has.

“If, on the other hand, they were accompanied somehow, if they were never in private, never actually in a home but they were out to meet with their family in a public park;  and I know of some situations where this has happened, kidnap victim or a captor-captive situation has occurred and a person is allowed to meet with relatives in a park, for example, where there are a lot of people around and they were told, ‘We are going to have a lot of people around’ and they were told, ‘We are going to have a lot of people in plainclothes and you don't know who they are and they have guns.   All you are to say to your parents is “Hello” and tell them you are fine.   If you attempt to do anything else or contact the police, we are going to grab you.   If you resist, we will shoot you.’

“THE COURT:  Then Doctor, the key then is whether the victim is in a safe place?

“THE WITNESS:  Right.

“THE COURT:  So if the victim perceives the place as not to be safe, it's not rational then to try to escape, is it?

“THE WITNESS:  If she doesn't perceive her own home in the presence, in the sole presence, of people that she knows and has known for many, many years—

“THE COURT:  Doctor, let's stay abstract, then it will become concrete.

“If the place is perceived by the victim to be an unsafe place, the victim would not try to escape, would she?

“THE WITNESS:  If she believed that, sure.

“THE COURT:  So the key then is whether the victim believes the place is a safe place?

“THE WITNESS:  Well, I think there are two keys.   One is the next question.   One is the victim sees it that way;  and the second is:  Is it a reasonable belief for adult persons in this society?

“THE COURT:  How rational would you expect a person to be after a period of torture?

“THE WITNESS:  I have seen many subjected to much more severe torture than these.   Skin and bones, scarred from head to toes, and who were still resisting and still jumped at the first chance to get away when it arose.

“THE COURT:  Were their families being threatened?

“THE WITNESS:  No.

“THE COURT:  What is ‘altruistic love’?

“THE WITNESS:  Altruistic love is love given with no expectation of return.

“THE COURT:  Basically, it puts the person's life beneath those of the person loved, is that true?

“THE WITNESS:  Sure.

“THE COURT:  For instance, the parent who sacrifices his life to save a child is an example of altruistic love?

“THE WITNESS:  Sure.

“THE COURT:  Wouldn't it be an example of altruistic love if someone decided not to risk the lives of their family and sacrifice themselves?

“THE WITNESS:  I am saying it could be.   I am saying, in the situation presented to me, I don't think it's the only alternative explanation.   Certainly it's one explanation.   It's a question of—it's not for me—first, whether the facts happened that way;  and secondly, it's a reasonable belief, knowing the various people involved in the various situations, and whether or not someone would not believe that their own family could be trusted.

“THE COURT:  Altruistic love is a fairly common experience, is it not?

“THE WITNESS:  Well, I am afraid it's not nearly as common as one would like or we would have a much more pleasant society.

“THE COURT:  I have no further questions.”

I concur in the judgment.   I write separately only to express my views with respect to how the exclusion of evidence of the victim's prior sexual conduct and the questioning by the trial court of defense expert Dr. Donald Lunde should be analyzed.

A. Evidence of the Victim's Prior Sexual Activities.

Among the reasons given by the trial court for excluding evidence concerning prior sexual conduct by the victim was that such evidence had “limited relevance.”   Reading that as meaning the offered evidence was not relevant at all, I fully agree.   Such evidence had absolutely no tendency in reason to prove or disprove whether the victim in fact consented and it is therefore by definition not relevant (Evid.Code, § 210) and not admissible (Evid.Code, § 350).   I would end the analysis of the evidentiary issue here.   For this reason, I express no opinion on the other theories explored by the majority in Part II.

B. Judicial Questioning of Defense Expert Dr. Lunde.

The defense made no contemporaneous objection to this unusual activity by the trial court judge.   That ends defendant's ability to complain on appeal.   (People v. Corrigan (1957) 48 Cal.2d 551, 556, 310 P.2d 953;  People v. Worthy (1980) 109 Cal.App.3d 514, 527, 167 Cal.Rptr. 402.)   It also ends any function of this court to either condone or condemn the questioning by the trial court.

Nevertheless, the majority opinion proceeds to address the merits and to find that the trial court's questions “were not phrased in a manner that would tend to convey to the jury that the judge did not believe the witness.”   (Majority opn., ante, p. 347.)   Worth reading in evaluating that conclusion are the trial court's comments to the jury after the verdicts were returned:  “I want to particularly commend you for having the intelligence to reject the testimony of Dr. Donald Lunde, the defense psychiatrist.  [¶] I think that witnesses like that are a real menace to the criminal justice system.   They come in here posing as objective scientists when in fact they are nothing but paid advocates;  and I am happy that you had the good sense to see through him because one Dan White case is enough.”   Whether such strongly held opinions were in tone communicated to the trier of fact during the questioning by the trial court is thus a difficult question that fortunately is not before us.¹

FOOTNOTES

1.   All statutory references are to the Penal Code, unless otherwise indicated.

2.   In 1976, the Hookers saw a film, “The Story of O,” about a young girl being “educated” to adopt a sadomasochistic lifestyle.   In this film, the slave was renamed with an initial rather than a full name.

3.   All subsequent dates refer to the 1984 calendar year, unless otherwise noted.

4.   One of the 1984 rapes was charged, but the jury could not reach a verdict on it.   The count was ultimately dismissed.

5.   The false imprisonment counts and one count of abduction for illicit relations were dismissed on the People's motion.

6.   Janice Hooker, an accomplice, testified under a grant of immunity.

7.   As the kidnapping occurred on May 19, 1977, before the July 1, 1977 effective date of the Determinate Sentencing Law (see Stats. 1976, ch. 1139, §§ 136, 351.5, pp. 5099, 5176), Hooker was properly sentenced to an indeterminate term of one to 25 years.  (See Stats. 1923, ch. 238, § 1, p. 486.)

8.   Subdivision (b)(1) of section 1103 of the Evidence Code provides:  “[I]n any prosecution under Section 261 ․ evidence of specific instances of the complaining witness' sexual conduct ․ is not admissible by the defendant in order to prove consent by the complaining witness.”

9.   Hooker contends that the trial court's ruling that Colleen's statement was coerced is a misapplication of the privilege against self-incrimination to one who was not a criminal defendant.   At trial, the court explained its reasoning:  “I can find no case in which a statement, tortured from a witness, was excluded.   There's a whole line of cases pre-Miranda.   Of course, they stopped with Miranda basically because the question of torture more or less has become secondary.   But there is a whole line of cases prior to Miranda that say that, if the circumstances are shocking to the conscience of the court, that the evidence is inadmissible.  [¶] In the present case, the inhuman and brutal torture inflicted upon the victim, literally putting her on the rack and doing every conceivable and warped thing that could possibly be done to influence and change the mind of the victim, and to rob her of any initiative, to literally make her a slave, and of course the definition of a slave is someone who has no choice, has no mind, and is literally under the complete control of another person, are so shocking to the conscience of this court that under no circumstances, save a direct order from a higher court, would I permit the introduction of such evidence before me.  [¶] I could only say that no defendant has a right to rely on such a statement and it is inherently unreasonable even if proved it's unreliable.  [¶] And the closest thing I could find in the authorities is in the case called People versus Berve, which is found at 51 Cal.2d, 286, at page 292 [332 P.2d 97 (1958) ], where a confession was tortured out of a criminal defendant and the California Supreme Court in that case said:  [¶] ‘Torture destroys not only physically but psychologically.   Elements of despair, fatigue, craving for companionship, identifying one's interrogator as a friend and source of aid, and suggestions of guilt were all present in a crude, haphazard form in this case.   They are the prime elements in the more devious and elaborate systems of menticide employed to obtain confession in totalitarian states.’  [¶] There is no question in [my] mind that, at the time [this statement] was extorted from her by being tortured, that she feared, if she didn't sign it, she was going to be tortured and perhaps killed, that she was not acting unreasonably and had good reason for her fears.  [¶] Accordingly, even if the other factors that the court has enunciated should fail, the court feels that such evidence has no place in a rational judicial system in a free country.”When read in this context, we are satisfied that the court merely analogized Colleen's situation to that of a criminal defendant coerced to confess, and that his ruling was, in essence, that the writing was not admissible because it was involuntary and therefore unreliable.

10.   The challenged exchange between the trial judge and Dr. Lunde is set out in Appendix A, which follows this opinion.

11.   In support of his contention, Hooker notes that after the verdict the trial judge specifically commended the jury for rejecting Lunde's testimony.   While this comment leaves no doubt about the trial court's assessment of Dr. Lunde's credibility, it was not made until after the verdict was rendered.   The issue on appeal is whether the trial court, by its questions, telegraphed this assessment to the jury before deliberations.

1.   Lurking here is a question of trial counsel's competency due to the failure to lodge an objection to the court's questioning.   There is, however, an obvious tactical reason for taking that tack:  trial counsel might have well thought that the conduct by the trial court would cause a reaction favorable to the defense if the jury viewed those comments either as overreaching or as prosecutorial.   That suffices for review by direct appeal.  (People v. Pope (1979) 23 Cal.3d 412, 425–426, 152 Cal.Rptr. 732, 590 P.2d 859;  accord People v. Phillips (1985) 41 Cal.3d 29, 61, 222 Cal.Rptr. 127, 711 P.2d 423;  People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)

CHANNELL, Associate Justice.

SABRAW, J., concurs.