1

Filed 6/29/15 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v. THOMAS MICHAEL VUKODINOVICH,

Defendant and Appellant. C074871 (Super. Ct. No. CRF124524)

APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge. Affirmed. Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Henry J. Valle, Depu ty Attorney s General, for Plaintiff and Respondent.

* Pursuant to California Rules of Co urt, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts III, IV, and V of the Discussion.2

Statistics show that 1 percent of the U.S. population have developmental
disab ilities

. ( Reed, Criminal Law and the Capacity of Mentally Retarded Persons (1997)
8 3 Va

. L.Rev. 799, 801 .) Given this percentage , t here has been a “ movement toward the normalization and mainstreaming of

. . . individuals [with developmental disabilities] ” in our society. ( Id . at p. 799. ) “Greater integration into society has created opportunities in education, vocational training, and recreational activities.” ( I bi d

. ) It has “also led to more opportunities to develop consensual intimate relationships that are often positive. While opportunities for consensual relationships have increased, the sexual exploitation
and abuse of [ individuals with developmental disabilities ] continues to be a major problem.” ( Ibid

. )
P enal laws in California help address this problem by making it a felony to engage
in , among other things, sexual intercourse, oral copulation , and digital penetration with a person who “ is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent

. ” 1 ( Pen. Code, 2 § 261, s ubd. (a)(1) [ sexual intercourse] ; § 28 8a, subd. (g) [oral copulation] ; § 289, subd. (b) [penetration by a foreign objec t].) “This is true even if the victim purports to consent.” ( Peo ple v. Thompson (2006) 142 Cal.App.4th 1426, 1429. ) These penal laws a re at issue in this case. Here, d efendant Thomas Michael Vukod inovich was the 73

- year

- old bus driver
for Yolo Employment Services, a nonprofit agency providi ng work activity programs, job training, and job retention for individuals with disabilities , who was entrusted with taking
clients to and from work

. L. was a 49

- year

- old female client of Yolo Empl o yment

1 Legal consent in these contexts is defined as “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” ( Pen. Code, § 261.6.)

2 All further section references are to the Penal Code unless otherwise indicated.3

Services with a mental age of three or four and an IQ of 37 who rode defendant’s bus

. From 2009 through 2012, defendant and L. carried on a sexual r elationship , mostly in the bus consisting of sexual intercourse, oral copulation, and digital penetration. The sex acts usually took place when all the other passengers were off the bus, except sometimes the
sex acts occurred while a gentleman who could n ot speak and another gentleman who was often asleep remained on the bus. Defendant told L. to “be quiet” about the sex acts and not to tell anybody because defendant “not wanna fire,” meaning he did not want to be fired. Oftentimes, L. would say she did not want to engage in the sex acts, but defendant persisted. Defendant was prosecuted for the sex acts on the sole theory that L. was incapable of giving legal consent. The jury found defendant guilty of one count of sexual intercourse, one count of

at tempted sexual intercourse, five counts of oral copulation, and fou r counts of digital penetration , all with a person who “ is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent .” (§ 261, su bd. (a)(1) [ sexual intercourse]; § 288a, subd. (g) [or al copulation]; § 289, subd. (b) [pen etration by a foreign object].) The court sentenced defendant to 14 years in prison. In the published portion of this opinion, we reject defendant’s contentions that these pen al laws impinge on his and L.’s rights to privacy and th ere was insufficient
evidence of a lack of legal consent to support these convictions . In the unpublished portion of this opinion, we reject defendant’s other contentions.

FACTUAL AND PROCEDURAL BACK GROUND
A The Prosecution’s Case
L. has been a client of Yolo Employment Services since she was 18 years old. L.’s job , Monday through Friday from 8:30 a.m. to 2:00 p.m. , through Yolo Employment
Service s , was as a warehouse worker for Walgreens, affixing labels to products.4

L. could not drive or take public transportation. She lived with one of her sisters,
who was her caretak er. L. was partially blind and could not read or write. She could not cook. She could bathe herself and change herself, but s he did not consistently select clothes appropriate for the weather. While she had “feelings like any other woman,” talking about “this boy cute” and had communicated in the past with her sister about sex in basic slang terms such as, “dick in the pussy,” before the charged incidents she had never talked to her sister about other types of sex acts. L.’s source of transportation to and from work was defendant and his bus through Yolo Employment Services. Defendant was L.’s bus driver from 2009 through Au gust 2012. During rides home from L.’s work, defendant would direct L. to move up to the front seat, and then he would have her lie down on the floor and remove her c lothes. Defendant would put “[p]inky, two hand” in her “gina.” It felt “ [ n ] ot good

. ” S ometimes he kissed her breasts and “gina.” Sometimes they engaged in sex acts while the bus was parked at a lake by L.’s house. She told defendant, “No more, Tom, no more, no more, stop.” But defendant would push her to the floor and make her lick his “ peanut” and put it in her mouth. L. “[n]o like it in [her] m outh, hurt.” When s he told defendant, “no more,” defenda nt “[a]gain, ” “ pushed [her] head down.” The “green, green” came out of his penis. The sex acts usually took place in the afternoons wh en defendant had dropped off

most other clients at their houses. Sometimes remaining in the bus would be a gentleman
who could see but could not talk and another gentleman who would usually be asleep

. If that gentleman opened his eyes, defendant would st op any sexual activity with L. Defendant told L. to “be quiet” and not to tell anybody because defendant “not wanna fire,” meaning he did not want to be fired. L. did not want defendant to be fired, so she “did q uiet ” and did not tell anybody.5

Once, d efendant told L. to sit on his lap while he was in the driver’s seat, and he put “[h]is peanut” in her “gina.” It felt “[n]ot good” and she said, “ [S]top. Tom, I said stop.” Defendant did not stop and said “go, go.”
Another time , defendant drove L. t o her house and came in. Defendant had to use the bathroom, and when he came out he kissed her and pulled her pants down. He then put his “peanut” in her “gina.” At trial, on redirect examination, when asked if she wante d to have sex with defendant, L. responded, “A little bit, not a lot.” When asked why she wanted to have sex with defendant, she responded, “It’s good.” W hen asked whether she wanted defendant to put his finger in her vagina, L. responded, “Yeah, one, not two.” L.’s sister learned of the sex acts between L. and defendant in June 2012 when a family acquaintance reported seeing the bus parked over a dozen times and defendant and
L. interacting in ways that seemed inappropriate (i.e., L. was standing over defendant
with her arm around hi m; L. was rub bing defendant’s shoulders; L. was in between the passengers’ seats and the driver seat, and as the family acquaintance approached the bus , L. moved into a passenger’s seat , all the while defendant remained seated in the driver’s

seat ).
Defe ndant was interviewed twic e by police. He admitted to the sexual acts with L., but said that the acts began when she became “aggressive” toward him. L. “started putting her hands down [his] pants” and after resisting for days, he “gave into it.” He felt “trapped” by L. because he was afraid she would tell everybody what was happening if
he said “ no ” to her advances. L. thought of defendant as her boyfriend and wanted to marry him. L. had conversations with defendant in which she talked about past sexua l encounters and from those conversations, defendant thought that L. “apparently . . . enjoys sex and wants it from wherever she can get it.”
L. was interviewed at the multi disciplinary inte rview center, where adults with developmental disabilities who are alleged sexual abuse victims are interviewed. L. said6

“this man . . . Tom . . . touchin’ my body

. . . and there was . . . dick in my mouth.” “I not want it. Uh, I was afraid.” He put his penis in her “gina” and it felt “[i]n the funny.”
Defendant also made her hand touch his “[ p]eanut.” When asked what sex meant to her,
she said , “The baby. Don’t wanna a baby.” Dr. Phyllis Williamson was a clinical psychologist who performed a consultation
with L. in 1991. Dr. Williamson was the one who asse ssed L.’s mental age at three or four with an IQ of 37. Someone like her would have a “very concrete, black and white” ability to understand the concept of sex. She woul d have names for body parts, would be able to say where babies come from, but could n ot weigh the “ pros and cons ” in terms of making a decision about whether to have sex. She could explain that a person could get “sick” from having sex, but she could not “really comprehend the consequence of having
an STD.” A person like this might want to engage in sexual activities because if she had sexual experiences, she is “going to recognize that as being a pleasurable experience.”
B The Defense Sharon McKee, a supervisor at Yolo Employment Services, had known L. for 25
years. She considered L. t o be her friend, and L. regularly visited McKee’s house for a couple of days at a time, walking her dog, “hang[ing] out,” going swimming, going to dinner, and going to the movies. L. had signed legal documents on her own relating to her placements and her Medicaid

. McKee has known L. to be untruthful , and L. knows how to “figure ou t stories to keep herself out of trouble.” They have talked about “private body parts,” which L. referred to as “ dick ” and “ pussy, ” and “things of a sexual
nature.” L. has ta lked to her about things of a sexual nature that she has asked McKee not to tell L.’s sister s

. After defendant was arrested, L. told her that she and defendant7

had had sex a lot of times, 3 he did not force her to do anything, she loved him, she
wanted to marry him, and she was “terrified that her sisters would find out.” Another long

- term employee of Yolo Employment Services, Alice Tapley, had
known L. for almost three decades. She has also known L. to be untruthful, although the
incidents of untruthful ness had tapered off in the last 10 years. In 2005, L. accused a bus driver of touching her and another client in a sexually inappropriate way. When the other
client s aid it did not happen , L. admitted she was lying because she was mad at the bus
driver and then said she was sorry.
C
The Verdicts The jury found defendant guilty of 10 sex acts and one attempted sex act. The jury could not reach a verdict on 46 other charged sex acts (oral copulation and penetration by a foreign object), so the court di smissed those counts on the prosecutor’s
motion

. DISCUSSION Defendant appeals from the resulting judgment, contending : (1) the statutes criminalizing sexual acts with people incapable of consent due to a developmental disability are unconstitutional beca use they violate his and L.’s federal and state rights to privacy; (2) there was insufficient evidence that L. lacked legal capacity to consent to the sexual acts; (3) the trial court abused its discretion and violated his right to present a
defense when i t excluded some evidence of L.’s sexual history; (4) the cumulative effect of the errors prejudiced him; and (5) the trial court violated the prohibition against ex post facto laws when it imposed a $280 restitution fine. Disagreeing with these
contention s, we affirm.

3 L. said the sex hurt becau se “there was so much of it.” It was McKee’s opinion that L. “wasn’t used to having so much sex.”8 I The Penal Code Sections Criminalizing Sexual Conduct With P eople Incapable Of Consent Do Not Violate Defendant’s Right To Privacy
Defendant contends that the statutes criminalizing sexual conduct with people incapable of consent due to a developmental disability (§ 261, subd. (a)(1) [sexual intercourse] ; § 28 8a, subd. (g) [oral copulation]; § 289, subd. (b) [penetration by a foreign object]) are unconstitutional because they violate his federal and state right to right to privacy. 4
In s upport of his contention, he relies on Lawrence v. T exas (2003) 539 U.S. 558 [156 L.Ed. 2d 508 ] , in which the United States Supreme Court held the “[p] etitioners’ criminal convictions for adult consensual sexual intimacy in the home ,” which consisted
of sod omy, violate d “ their vital interests in liberty and privacy protected by the Due
Process Clause of the Fourteenth Amendment

. ” ( Lawrence , at pp. 564, 578

- 579 [ 156 L.Ed.2d at pp. 51 6 , 525

- 526]

. ) The United States Supreme Court, however, made clear its deci sion in Lawrence
did not extend beyond protecting the private sexual conduct of two consenting adults:

“ The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where conse nt might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons
seek to enter. The case does involve two adults who, w ith full and mutual consent from
each other , engaged in sexual practices common to a homosexual lifestyle. The

4 To the extent defendant raises a violation of L.’s right to privacy, he lacks standing to do so. (See People v. Badgett (1995) 10 Cal.4th 330, 343 [“def endants must allege a violation of their own rights in order to have standing”].)9

petitioners are entitled to respect for their private lives. ” ( Lawrence v. T exas , supra , 539 U.S. at p. 578 [156 L.Ed.2d at p. 5 25 ] , italics ad ded .) In fact, “[t] he principle that rape may be committed by having sex with a person so mentally incapacitated as to be incapable of consenting is hardly novel. ‘ Under English
common law this situation was considered no different from intercourse with an unconscious person

. . . . ’ [Citation.] In California law, the phrase ‘ inca pable

. . . of giving legal consent’ d ates back at least as far as the original Penal Code of 1872, which defined rape so as to include ‘ an act of sexual intercourse accomplish ed with a female, not the wife of the perpetrator,

. . . [¶]

. . . [¶] [w]here she is incapable, through lunacy or other unsoundness of mind, whether temporary or perman ent, of giving legal

consent

. . . . ’ ” ( People v. Thompson , supra , 142 Cal. App. 4th at p. 1434. ) Were we to accept the alternative conclusion that defendant had a constitutional right to engage in sexual conduct with a person who had developmental disabilities and who lacked the legal capacity to consent, we would render the state incapable of protecting individuals with disabilities

. “Obviously, it is the proper business of the state to stop sexual predators from taking advantage of developmentally disabled people. ” ( People v. Thompson , supra , 142 Cal.App. 4th at p. 1429. )
We therefore re

ject defendant’s contention that the penal laws at issue here designed to protect individuals with developmental disabilities from sexual exploitation , when there is evidence that the victim lacked the legal ability to consent, violate his right to privacy

. II

Substantial Eviden ce Supported The Jury’s Finding L. Lacked The Legal Capacity To Consent To Sexual Conduct
Defendant contends his convictions must be reversed because there was insufficient evidence that L. lacked legal capacity to consent to the se xu al conduct here.10

We disagree and begin our analysis with a line of cases similar to ours where this issue has been raised and rejected

. As we have noted, l egal consent as applied here is defined as “positive cooperation in act or attitude pursuant to a n exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the ac t or transaction involved.” (§ 261.6.) Over a century ago, our Supreme Court explained that “[t] his degree of intelligence may exist with an im paired and weakened intellect, or it may not. ” ( People v. Griffin (1897) 117 Cal. 583, 585. ) Since then, a series of three cases has found
sufficient evidence that the victim s lacked legal capacity to consent in situations similar

to ours

. First, in Peo

ple v. Boggs (1930) 107 Cal.App. 492, this court upheld a defendant’s conviction of rape where the victim had the me nta l capac ity of a 10 or 12 year old and lacked “ ‘sufficient mentality to protect herself from the ordinary vicissitudes of life.’ ” ( Id

. at pp. 493

- 494.) T he victim testified as follows in response to the question whether
she resisted : “ ‘If I didn’ t let him do it he would just stand there and wouldn’t let me get anything done and I didn’t want him to stand there all day and not let me ge t anything done for I was busy and I told him I was busy and had work to do and that I didn’t have
time. . . . I didn’t want him to stay there all day for I wouldn’t get anything done.’ ” ( Id

. at p. 494 .) While “[i]t [wa]s true that she seemed to know w hat constitutes the physical act [of intercourse] and that pregn ancy might result therefrom, . . . she apparently had little conception of other serious consequence s which would follow.” ( Ibid .) Second, in People v. Mobl ey (1999) 72 Cal.App.4th 761 , disa pproved on other grounds in People v. Trujillo (2006) 40 Cal.4th 165, 181, f ootnote 3, the appellat e court upheld a defendant’s convictions of unlawful sodomy of two men in their early 20’s

. ( Mobley , at p. 767.) Both victims had low IQ ’ s (80 and 75) , t he cognitive functioning o f adolescents (14 y ear old and 11 year old), and some basic sex education. ( Id . at pp. 771,
773

- 774, 777

- 779.) One of the victims answered, “ ‘Yep, ’ ” when asked if he “agree[d]11

to have sex with [defe ndant] freely and voluntari ly,” and the other one “agreed he
voluntaril y did the acts with [defendant]. ” ( Id . at pp. 776 , 777 .) “ M ore importantly, [however], the jury heard the full testimonies [of the victims],” and the jury “could have reasonably inferred from the prosecution ev idence, including [the victims’] direct testimonies, that [they] did not have the capacity to give legal consent at the time the acts of sodomy were committed .” ( Id . at pp. 789 , 790

. ) This testimony included that the
defendant had befriended both victims (who we re best friends) and “explain[ed] to [one of the victims] that friends kiss, go to bed together and engage in sex.” ( Id . at p. 775

. )

“ [Defendant] also told [that victim] about the cave [anal sex] , exp laining what it meant and that ‘it was cool’ a nd ‘would feel good.’ ” ( I bi d

. ) Defendant in itiated the cave, directing one of the victim s “ to take off his clothes, lie on the bed, and do as directed. ” ( I bi d

. ) He also told one o f the victims not to tell. ( Ibid

. ) Over time, one of the victims “just got used to it and ‘cooperated.’ ” ( Ibid .) The other victim testified , “he was confused and had mixed feelings when [the defendant] showed him pornographic videos and asked him to do sexual things. [This victim] did not know whether it was right to

sta y or go at those times. He agreed he voluntarily did the acts with [the defendant] because ‘[he] was told.’ ” ( Id . at p. 777

. )
And third , in People v. Thompson , supra , 142 Cal.App.4th at page 1426, the appellate court found substantial evidence that th e victim was incapable of giving legal consent, where she “could not cook, use a bus, or do simple arithmetic. She was even more seriously disabled than the victims in Mobley , in that she could not hold down a real job, handle money, or cast an independen t vote. She conversed at the level of a nine or 10 year old and read at the level of a seven or eight year old. Although she had attended high school, she, like the victim in Boggs , was not really qualified for a diploma.” ( Thompson , at p. 1436.) “Also like the victim in Boggs , [the victim] had some idea of what sexual intercourse was, including that it could result in pregnancy. However, her understanding was on the same level as t he children’ s rhyme, ‘ First comes love, then12

comes marriage, then c omes a baby in a baby carriage.’ She did not understand th at sex could result in disease.” ( Thompson , at p. 1436.) It was also “relevant that [the] defendant was one of [the victim’s] caretakers and that he exploited her vulnerability, the very type of harm the statute seeks to guard against.” ( Id . at p. 1440. ) Under the reasoning of these line of cases, we also find substantial evidence L.

was incapable of giving legal consen t during the charged sex acts with defendant

. At the
time the sex acts were comm itted, L. was effectively under the control of defendant, who
had been entrusted to drive her to and from her job , something she could not do on her

own

. She had the mental age of three or four and an IQ of 37 , putting her in the “moderately [disabled] ca tegory

. ” She was partially blind. She could not read or write. She could bathe herself and change herself, but did not consistently select clothes appropriate for the weather. She could not cook. While she had “feelings like any other woman,” talking about “this boy cute” and had communicated in the past with her sister about sex in basic slang terms such as, “dick in the pussy,” before the charged incidents she had never talked to her sister about other types of sex acts. W hen L. and her sister
would see sexual intercourse on television, L. would tell her sister, “ ‘that’s bad,’ ” prompting her sister to change t he channel because it was making L. uncomfortable. When asked by the interviewer at the multi disciplinary interview center what sex meant

to her, L. said , “The baby. Don’t wanna a baby.” When asked at trial whether she knew she could “get sick” from having sex, L. responded “Yes,” but then when asked “[w]hat can happen,” she replied only, “Sick .” W hile defendant points out that on redirect

exa mination L. said she wanted to have sex with defendant, “[a] little bit, not a lot” and that she wanted sex because, “[i]t’s good,” these facts d o not prove capacity to give legal

consent. What appears to be consent from somebody who lacks capacity to consent is, in effect, nothing at all.13 III
The Trial Court Did Not Err In Excluding
Some Evidence Of L.’s Sexual History Defendant contends the trial court abused its discretion and violated his right to present a defense when it excluded some evidence of L.’s sexual history. We disagree.
A
The Evidence Defendant Is Claiming On Appeal

Should Have Been Admitted The evidence defendant is claiming on appeal should have been allowed at trial
was as follows: In 1990, L. reported to her supervisor that her bu s driver had fondled her private parts. The incident occurred when nobody else was on the bus and the driver took her to a secluded area with walnut trees near her house. She had not told anyone else because
she was afraid and because the bus driver said she would no longer be able to ride the bus
if she told. There was no evidence whether the 1990 incident was tru e or false.
In 1 991 Dr . Williamson , who interviewed L. , wrote a report about L . She wrote, among other things, that L. had been seen “mast urbating herself and grabbing male
members in a sexually intrusive manner ” and “attemp t ing to engage in sexual behavior with fellow workers.”
In 2000, L. “was written up for telling several people in the shop to su ck in the

-- ”
In 2002, L. “asked male workers essentially to suck her pussy, pointed to her female parts, and asked another client to suck his dick using gestures.” The court did admit a 2005 incident in which L. accused a bus driver of touching her and another client in a sexually inappro priate way. When the other c lient said it did not happen , L. admitted she was lying because she was mad at the bus driver and then said she was sorry.14 B Procedural Facts Relating To The Admissibility Of L.’s Sexual History The issue of L.’s sexual histo ry was first brought up by the People , who filed a
written motion to exclu de evidence of the incidents from 1990, 2000, and 2005, arguing it was irrelevant to the issue of whether L. could legally consent here. The court grant ed
the motion.
Defendant th en tried to have the report that Dr. Williamson wrote admitted to show the information an expert considered in evaluating L. ’s “ condition. ” The court
excluded the informatio n “under [section] 352 ” because it would “be difficult, if not impossible, for a j uror listening to the testimony from this expert about what reports she relied on, reports that don’t come from her firsthand knowledge, but from the facility’s staff to go through the mental gymnastics of using that information only to assess the
exper t’s ultimate opinion and not re ly on that information

. . . . ”
Defendant then filed a written motion to have the sex acts from 1990 and 2005 admitted as relevant to L.’s credibility. The trial court excluded from evidence the 1990
incident because it was irrelevant, as there was no evidence whether the report was true
of false. It ruled the 2005 incident was admissible as a specific instance of lying.
Defendant then made an offer of proof regarding what he would have elicited
about L. ’s sexual history , which included the following: In 2000, L. “was written up for telling several people in the shop to suck in the

-- . ” In 2002, L. “asked male workers essentially to suck her pussy, pointed to her female parts, and asked another client to suck
his dick u sing gestures.”
The court ruled the 2002 incident was never brought up by defendant in any of his
motions and it was untimely to bring it up now. The court said nothing about the 2000
incident.15 C The Trial Court Did Not Err In Excluding
Some Evidence Of L.’s Sexual History Defendant contends the court erred in excluding the ev idence of L.’s sexual history from 1990, 2000, and 2002 because the evidence would have explained L.’s legal capacity to consent in that she knew about various sex acts and was an a dult who “was
inter ested in sex and enjoyed sex.” We take each incident in turn. As to the 1990 incident, it was not established whether the incident was true or false, so it had no probative value in terms of L.’s veracity or L.’s knowledge of sex acts through that alleged encounter. The refore, the trial court correctly excluded it as irrelevant. (See Evid. Code , § § 350 [ only r elevant evidence is admissible], 210 [r elevant evidence is that “having any tendency in reason to prove or disprove any dispute d fact that is of consequence to the determination of the action ”]

. ) As to the 2000 incident, the court did not provi de a specific ruling on it, and defendant’ s failure to obtain a ruling on that issue forfeits the issue on appeal. ( People v. Murphy (19 62) 207 Cal.App.2d 885, 888

- 890 [if court fails to rule upon issue raised by party, it is incumbent upon objecting party to seek ruling, otherwise issue is deemed forfeited].) 5 As to the 2002 incident, the trial court ruled it was never brought up by defe ndant in any of his motions and it was untimely to bring it up now. Defendant offers no argument as to why this ruling was incorrect, even when brought to his attention by the People in their respondent’s brief in a section entitled, “Waiver.” As such, h e has not

5 This could have been because L.’s alleged sexual conduct in this instance was not at all clear. Defendant’s offer of proof stated rather vaguely as follows: In 2000, L. “was written up for telling several people in the shop to suck in the

-- . ”16

carried his burden of persuading us that the trial court incorrectly held his motion as to the 2002 incident was untimely.
A s to the incidents contained in the psychologist’s 1991 report about L.’s sexual
behavior that included masturbating hers elf and sexually ag gressive behavior toward
others , the trial court acted within its discretion in excluding from evidence this hearsay
in the report the psychologist relied on in forming her opinions. “When expert opinion is offered, much must be left to the trial court’ s discretion.” ( People v. Carpenter (1997) 15 Cal.4th 312, 403 .) “Although an expert may base an opinion on hearsay, the trial co urt may exclude from the expert’ s testimony ‘any hearsay matter whose irrelevance, unreliability, or potenti al for prejudice outwei ghs its proper probative value.’ ” ( People
v. Pollock (2004) 32 Cal.4th 1153, 1172.) Here, the trial court acted within its discretion in preventing Dr. Williamson from testifying about the underlying incidents about which
she had no personal knowledge becau se of the potential the jury might be confused by the fact that it could not rely on these acts for the truth of the matter. Finally, we address defendant’s argument that his Sixth Amendment r ight to present a defense was “ imp inged greatly upon” because of the exclusion of all of this
evidence. The evidence excluded touched on two points

-- credibility and L.’s sexual history. But evidence as to these points was already introduced, so the excluded evidence
would not have crea ted a significantly different impression of L. for the jury. (See People v. Frye (1998) 18 Cal.4th 894, 946 [ there is no violation of the Sixth Amendm ent right to present a defense “ unless the defendant can show that the prohibited cross

e xamination would have produced ‘ a significantly diffe rent impression of [the witness’s] credibility’ ” ]

. ) For example, as to credibility, L.’s friend and a supervisor at Yolo Employment Services, Sharon McKee, testified that L. has been untruthful and knows how to “figur e17

ou t stories to keep herself out of trouble.” Another long

- term employee of Yolo Employment Services, Alice Tapley, also had known L. to be untruthf ul, and related a story that L

. had made up in 2005 about a bus driver touching her and another client i n a

s exually inappropriate way. As to L.’s sexual history, McKee testified she and L. talked about “private body parts,” which L. referred to as “dick” and “pussy,” and “things of a sexual nature.” L. had in the past talked to her about things of a sexua l nature that she had asked McKee not to tell L.’s sister s

. Similarly, defendant told police when interviewed that L. told him about her past sexual encounters and from those conversations, defendant thought that L. “apparently . . . enjoys sex and wants it from wherever she can get it.” Given this evidence that defendant was allowed to introduce, defendant’s Sixth Amendment right to present a defense was not impinged upon by the court’s exclusion of the other, similar evidence.
IV
There Were No Error

s To Accumulate Defendant contends the cumulative effect of the errors he has alleged deprived him of due process of law and a f air trial, requiring reversal. As our above discussion illustrates, we have found no errors to accumulate.
V
The Trial Court D id Not Violate Ex Post Facto Principles When Imposing The $280 Restitution Fine The court imposed a $280 restitution fine as follo ws: “As the probation officer points out, by law I must impose a restitution fine pursuant to Penal Code [s]ection
1202.4

. That fine would be two hundred and eighty dollars.” The probation report had recommended that “[p]ursuant to Penal Code section 1202.4(b), the defendant shall pay a
restitut ion fine of $300 for each felony conviction.”18

From 2009 through 2012 , the yea r s in which defendant committed the crimes , the
restitution fine provided by former section 1202.4, subdivision (b)(1) ranged from
minimum s of $200 and $240 , respectively , to a maximum of $10,000

. ( § 1202.4, subd. (b)(1), as amended by Stats. 2009, ch. 454, § 1 & Stats. 2011, ch. 358, § 1.) In 2013, the year in which defendant was sentenced, the minimum had been increased to $280. (§ 1202.4, subd. (b)(1), as amended by Stats. 2012, ch. 873, § 1.5.) Because the court imposed a $280 restitution fine , defend ant contends the trial

court intended to impose the mi nimum amount applicable which was “ $200 or even $240,” but the court incorrectly used the minimum applicable in 2013. This, according to defendant, resulted in a violation of the principle against ex p ost facto laws

. We disagree. “It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions.” ( People v. Souza (2012) 54 Cal.4th 90, 143.) Additionally, restitution fines are assessed based on the version of section 1202.4 in effect on the date the defendant committed his or her criminal offense or offenses, not the date upon which the defendant was sentenced. ( Souza , a t p. 143.) However , defendant
reads too much into a record that is silent as to why t he court chose the $280 figure. “ [I]n light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope o f that discretion.” ( People v. Gutierrez (2 009) 174 Cal.App.4th 515, 527.) Accordingly, the

co urt was authorized to impose a $280 restitution fine, and we reject defendant’s ex post facto contention.19 DISPOSITION The judgment is affirmed.

ROBIE , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.