1

Filed 7/30/14 P. v. Slape CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

DARRELL RAVAN SLAPE, 

 Defendant and Appellant. 

 A136669 

 (Humboldt County 

 Super. Ct. No. CR083870S) 

 Defendant Darrell Ravan Slape appeals a judgment entered upon a jury verdict 

finding him guilty of sexual penetration by a foreign object of a person unconscious of 

the nature of the act (Pen. Code,1

 § 289, subd. (d)(4); count one); sexual battery by fraud 

(§ 243.4, subd. (c); count two); and misdemeanor battery (§ 242; count three). The trial 

court sentenced him to a prison term of seven years. He contends he was deprived of the 

effective assistance of counsel, that the trial court abused its discretion in denying his 

motion for a new trial and in excluding expert testimony, that he received inadequate 

accommodations for his hearing disability, and that his sentence constitutes cruel and 

unusual punishment. We shall affirm the judgment. 

 1

 All undesignated statutory references are to the Penal Code. 
2

I. BACKGROUND 

A. Factual Background 

 Defendant committed his crimes against two victims, Jane Doe One and Jane Doe 

Two, while giving them massages at his business.2

 

 Doe One had injured her psoas muscle,3

 which caused her pain from her lower 

back down to her thigh, and in 2007 was referred to Back in Action (or Healthy Life 

Alternatives), a business owned by defendant. During her first appointment, defendant 

told her he would give her a massage, and directed her to undress. He massaged the 

inside of her upper thighs as she lay on her back, and his hand brushed against her 

genitals a couple of times. He suddenly put his fingers inside her vagina, directly onto 

the area that was painful, and she was immediately in pain. A female physical therapist 

had performed internal massage of the knots inside Doe One’s vagina in the past, but she 

had not given defendant permission to do so. 

 Defendant told Doe One to lie on her stomach and told her to lift her hips off the 

table. He again inserted his fingers into her vagina, causing her to have an orgasm. He 

told her to lie on her back again, asked her if he could massage her breasts, and did so. 

After the massage, Doe One tried to behave normally. She wrote a check to pay for the 

massage, made more appointments, and left. She was upset afterward, discussed the 

matter with her husband and pastor, and reported the incident to the police. 

 2

 In his briefing on appeal, defendant almost entirely ignores the facts underlying 

his convictions, instead limiting his “Statement of Facts” to an explanation of his 

massage therapy practice, a discussion of his hearing difficulties, a discussion of the 

testimony that his proposed expert witnesses would have provided, and a summary of the 

procedural history of the case. While recital of the facts of this case can be discomfiting, 

these facts are necessary to an understanding of the issues defendant raises on appeal, 

particularly his challenge to the exclusion of expert evidence on “referred sensation.” We 

remind defendant’s counsel of his obligation to set forth the significant facts in 

appellant’s opening brief. (Cal. Rules of Court, rule 8.204(a)(2)(C).) 

3

 The psoas is “a large flexor muscle of the hip-joint which arises from the lumbar 

vertebrae and sacrum and is inserted along with the iliac into the lesser trochanter of the 

femur.” (12 Oxford English Dict. (2d ed. 1989) p. 755.) 
3

 Doe One had taken lorazepam (Adavan) that morning, and an Ambien tablet the 

previous night. The lorazepam relieved stress, but she did not otherwise feel its effects. 

She had not noticed any adverse effects from the Ambien, which helped her sleep. She 

had been prescribed, and occasionally took, other medications for migraines (Maxalt and 

Soma) and Percocet, but did not recall taking them before the incident. She also took 

Cortef, which she said was a hydrocortisone in tablet form, and which she said caused no 

side effects other than weight gain. Defendant presented evidence that some of the 

medications Doe One took acted as central nervous depressants and could affect memory. 

 Jane Doe Two was a massage therapist. She sought treatment for back problems 

in 2009, and defendant told her that since her insurance would not pay for his services, 

she could use some of his business’s equipment if she gave him massages in return. 

After they spoke in his office, he told her he had a massage certificate and suggested they 

trade half-hour massages. While defendant was massaging Doe Two, he asked if she 

knew where her first “chakra” was. She said she did not, and he slipped his hand under 

the sheet covering her and under her underwear, and put his hand and finger at the 

opening of her vagina. He asked her to put her hand to his other hand, and asked if she 

could feel the vibration between them. She was upset, but after the massage she was 

afraid defendant might have locked the door or that he might pursue her if she tried to 

leave, and she decided to give him a massage before leaving. As she did so, he told her 

he wanted her to work on his chakra, took her hand, and placed it on his perineum. Doe 

Two told him she was not comfortable with that, and he asked her to continue massaging 

him. After the massage, Doe Two made more appointments with defendant because she 

was frightened that he would lock her up if he knew she was uncomfortable. She later 

reported the matter to the police. 

 Michael Drew, who had taught defendant massage therapy in 1996, testified that 

he taught his students that it is not appropriate to touch a client’s genitals or massage a 

woman’s breasts. However, internal or pelvic massage could be used as part of “trigger 
4

point therapy,”4

 to search for painful spots that might be referring pain to other areas. A 

massage therapist should only do so under the supervision of a doctor or other licensed 

medical professional. 

 Drew testified on cross-examination that there can be trigger points in the perineal 

area. He also testified that it was possible that if a massage therapist activated a nerve in 

the lower spine area, a sensation could be felt in the genital area, and that some of the 

nerves that run to the genital area might run through the psoas muscle. If a cramped 

muscle was released, the client could feel both painful and pleasurable sensations in the 

genitals. A client who was having referred sensation would feel it both where the 

pressure was applied and in the area to which the sensation was referred. 

 Janette Johnson, a certified massage therapist and massage therapy instructor, 

testified for the People as an expert in massage therapy and professional standards of 

conduct. On cross-examination, she testified that when pressure was applied to a “trigger 

point,” sensation could be referred to another site. When a muscle in the inner thigh area 

or perineum was activated, referred pain could be felt in the genitals. 

 M.G. testified that she received massage therapy from defendant in 1998, that he 

asked her to disrobe completely, and that over time, he focused his massages more on her 

crotch area and her breasts. On several occasions, as he worked on pressure points near 

her pubic area, he “hit” her genitals. After each massage, he would give her a hug in 

order to “crack [her] back,” and on two occasions he kissed her. 

 Defendant testified in his own defense. He testified that he performed trigger 

point therapy on Doe One, and that it could be painful. He found trigger points in her 

right hip area, and “relieved the entrapment that was preventing circulation of the 

neuromuscular portion of her hip.” When an entrapment was released, the client could 

feel sensations throughout the body. The psoas muscle encompassed the vagina, and 

when it was released, the client could experience sensation in the genitalia, because 

 4

 Drew explained that people develop trigger points from overuse injuries or acute 

injuries. 
5

“those nerves that go to the genitalia actually go through the psoas muscle.” This could 

result in a simulated orgasm. While he was massaging Doe One, he got no closer than 

three inches to her vagina, and he denied penetrating her. He massaged her right upper 

quadrant, but denied touching her breasts. When Doe One was on her stomach, he asked 

her to push her hips up into his hand so he could determine how much pressure she could 

withstand. He did not penetrate her as he did so, and he was not aware that she was 

having an orgasm. He believed both Doe One and Doe Two might have experienced 

referred sensation. 

 Defendant testified that Doe Two told him she was a massage therapist and that 

they agreed to trade massages. He said he was within a few inches of her genitals as he 

was massaging her, but denied touching them. He said Doe Two had asked for “chakra 

infusion,” but that he was unable to “get to” chakra number one, located on the perineum, 

because of her body weight, so he went to chakra number two, just above the navel. 

 Defendant also testified that as part of the therapy he received for the effects of a 

broken back, a massage therapist regularly massaged his perineum. When Doe Two was 

massaging him, he placed her hand on his perineum. 

B. Procedural History 

 As to Doe One, the jury found defendant had committed the charged crimes of 

sexual penetration by a foreign object of a victim unconscious of the nature of the act 

(§ 289, subd. (d)(4)) and sexual battery by fraud (§ 243.4, subd. (c)). As to Doe Two, the 

jury found defendant not guilty of sexual battery by fraud (§ 243.4, subd. (c)), but guilty 

of the lesser included offense of misdemeanor battery (§ 242). 

 The jury rendered its verdicts on May 29, 2012, and the trial court initially set the 

sentencing hearing for August 3, 2012. Defendant filed a substitution of attorney on July 

6, 2012, substituting Duncan James for his trial counsel, Jerold Schultz. Shortly 

thereafter, defendant filed a motion to continue the judgment and sentencing, supported 

by James’s declaration that he needed additional time to review the trial transcripts in 

order to determine whether there were grounds for a motion for a new trial. On July 25, 

2012, the trial court continued the sentencing hearing until August 15. Defendant filed 
6

another motion to continue sentencing, on the ground that the trial transcripts were not 

yet available and that he was seeking additional testimony to support a motion for new 

trial. At the hearing on this motion, held August 8, 2012, the trial court denied 

defendant’s request for an evidentiary hearing at the motion for new trial, ruling instead 

that the motion would be decided based on declarations. The court granted a continuance 

until August 31. 

 On August 10, 2012, defendant filed a third motion to continue the judgment and 

sentencing, on the ground that his new counsel had not yet received all the trial 

transcripts and that he needed more time to prepare expert witness declarations to support 

his new trial motion. An assigned judge heard the motion on August 17 and denied it 

without prejudice. 

 Defendant filed a fourth motion to continue the judgment and sentencing and 

motion for new trial, stating that he had received all but one of the trial transcripts, that 

his counsel needed time to read them in order to prepare a motion for new trial, and that 

he needed time to prepare expert declarations. He asked for a 60-day continuance. At 

the August 24, 2012 hearing on the motion, the trial court granted a continuance until 

September 14, 2012, and indicated again that it would not allow live testimony at the 

hearing on the motion for new trial. 

 Defendant filed his motion for a new trial on August 24, 2012. The motion was 

made on the grounds that defendant was unable to hear the trial properly and therefore 

could not participate in his defense, that his trial counsel rendered ineffective assistance 

by (1) not concerning himself with defendant’s inability to hear, (2) not filing a points 

and authorities on the effects of spina bifida, a disease Doe Two suffered from, and (3) 

failing to advocate properly for the admission of the testimony of an expert witness, Dr. 

John Podboy, and that the lack of Dr. Podboy’s testimony deprived him of a fair trial. 

Defendant submitted an expanded memorandum of points and authorities and additional 

evidence in support of the motion before the September 14 hearing. The expanded 

memorandum of points and authorities argued in addition that trial counsel rendered 

ineffective assistance in that he failed to advocate adequately for the admissibility of the 
7

testimony of another proposed expert witness, Dr. Harry Friedman, that counsel was 

unprepared for trial in that he did not bring a laptop computer or a printer, and that 

counsel did not realize Dr. Podboy could testify about spina bifida. Defendant also 

argued that the trial court erroneously excluded the testimony of both Dr. Podboy and Dr. 

Friedman, and that the testimony of Doe One and Doe Two did not constitute substantial 

evidence that defendant had committed the crimes of which he was convicted. A 

supporting declaration asserted that trial counsel improperly challenged the originally 

assigned trial judge in order to accommodate counsel’s own schedule. 

 At the hearing on the motion for a new trial, defendant unsuccessfully renewed his 

request to subpoena his trial counsel, Schultz, to testify at the hearing.5

 The trial court 

denied the new trial motion. The judge noted that defendant had received 

accommodations for his hearing disability: he had the use of a headset, and he was given 

the use of a computer with a “realtime feed” from the court reporter so he could follow 

the proceedings as they occurred. The judge stated, “Now, throughout the trial, I was 

well aware of Mr. Slape’s stated hearing deficiencies, and being so aware and advised, I 

did purposely and intentionally throughout the proceeding observe Mr. Slape; and I had a 

direct view of Mr. Slape at the table throughout the proceedings, and viewing him as I did 

and again emphasizing ‘purposely and intentionally’ regarding the hearing issue, I saw 

Mr. Slape viewing the realtime reporting, and he appeared to be, to my observation, 

reading along with the realtime.” The judge also noted that he had also seen defendant 

using the headset on occasion, and that he “would look at the examiners, and he would 

act—nod and act in conformance with the questions and answers. [¶] So I had absolutely 

no belief that Mr. Slape was not fully participating in the proceedings throughout.” As to 

the testimony of Dr. Podboy, the court noted that trial counsel had been “persistent” in 

 5

 Defendant’s new attorney, James, argued, “It’s very difficult to prepare a 

declaration and then send it to the attorney, the trial attorney, and get him to sign it. 

[¶] So really the only way we can proceed on that level is to have him subpoenaed and 

have him subject to live testimony.” 
8

trying to offer that testimony and that the court’s own research had persuaded it that the 

testimony was inadmissible. 

 The trial court denied probation and sentenced defendant to a six-year term for 

count one, an additional one-year term for count two, and a concurrent 180-day term for 

count three, for a total term of seven years. 

II. DISCUSSION 

A. Exclusion of Evidence 

 Defendant contends the trial court abused its discretion in excluding evidence by 

two proposed experts, Dr. Podboy, a clinical and forensic psychologist, and Dr. Harry 

Friedman, a doctor of osteopathy. 

1. Background 

 Defendant sought to introduce the testimony of Dr. Podboy at trial on “the issue of 

perception and memory as affected by prior trauma.” According to defense counsel’s 

declaration, the expert testimony would “inform the jury of various psychological factors 

that affect perception and the reliability of memory.” This included an explanation that 

“current perceptions can be affected by psychological experiences at the time of the 

event,” and that “[m]emory of current perceptions will be influenced by intrusive past 

feelings regarding similar events.” The expert would also testify that massage could 

cause flashbacks of memories of past sexual assaults and a person might confuse 

memories and past and current events. Dr. Podboy was also expected to testify that 

trigger point massage causes referred pain, and that trigger points “usually send their pain 

to some other site.” 

 It appears that both Doe One and Doe Two had suffered sexual assault in the past. 

In argument to the trial court, defense counsel described the nature of Dr. Podboy’s 

anticipated evidence about Doe One as follows: “We need testimony that posttraumatic 

stress sufferers can relive these past memories and can have confusion with these 

memories. [¶] Also that’s going to be clear that she was in a great deal of pain, and I 

think we need evidence that stressors such as pain can cause the memory and the mind to 

relive these events that are associated with this pain, and we need expert opinion 
9

regarding that fact. [¶] We have the issue of psychotic transference, where she sees 

things that are just not true. And he can testify that it’s not unusual for people who have 

posttraumatic stress disorder to have a psychotic transfer where she imagines things or 

has delusions about what reality is all about. [¶] . . . [¶] There’s evidence from her doctor 

that she was being treated, that she has sexual abuse in her history and that she’s 

suffering from posttraumatic stress from that injury. She has anxiety and depression as 

well. [¶] All of those are going to affect her ability to perceive, and it’s these unresolved 

psychological problems that she has [that] can be taken out against Darrell Slape, that she 

has these incidents in her background where she was assaulted sexually. [¶] She wants to 

regain control over her life, and psychologically replaces Darrell Slape as those abusers 

in the past and takes out her anger and her hostility against him. [¶] All of those are 

issues that Dr. Podboy can address.” Defense counsel also informed the court that Doe 

Two suffered from spina bifida, that the condition could impair thinking and memory, 

and that Dr. Podboy would testify about those effects. 

 Defendant sought to introduce Dr. Friedman’s testimony “regarding referred 

sensation in the massage experience from trigger-point massage.” His counsel explained 

that referred sensation meant that “a touching in one part of the body will cause a 

sensation in another part of the body.” 

 The court excluded the testimony of Dr. Podboy and Dr. Friedman, reasoning that 

the question of whether people can misperceive events was within the province of the 

jury and was not an appropriate subject of expert testimony. The court also concluded 

that a theory that massage released past memories was “a, quite frankly, stretch,” but told 

defense counsel each of the victims could be questioned about how other massages had 

affected them. 

 During the court’s ruling, defense counsel twice tried to present further argument 

about the admissibility of Dr. Podboy’s testimony, but the trial court refused to hear it. 

Defense counsel again raised the issue of whether expert testimony on referred sensation 

would be allowed, and the trial court ruled it inadmissible, stating it was “a stretch for . . . 

expert testimony.” 
10

2. Discussion 

 “[E]xpert psychiatric testimony may be admissible to impeach the credibility of a 

prosecution witness where the witness’ mental or emotional condition may affect the 

ability of the witness to tell the truth. The admissibility of such testimony rests within the 

discretion of the trial court. Generally, however, attempts to impeach a prosecution 

witness by expert psychiatric testimony have been rejected [citations], except in certain 

sex offense cases.” (People v. Cooks (1983) 141 Cal.App.3d 224, 302 (Cooks), italics 

added.)6

 As our high court has explained, “there is a ‘judicial policy disfavoring attempts 

to impeach witnesses by means of psychiatric testimony. [Citations.] California courts 

have viewed such examinations with disfavor because “ ‘[a] psychiatrist’s testimony on 

the credibility of a witness may involve many dangers: the psychiatrist’s testimony may 

not be relevant; the techniques used and theories advanced may not be generally 

accepted; the psychiatrist may not be in any better position to evaluate credibility than the 

juror; difficulties may arise in communication between the psychiatrist and the jury; too 

much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists 

may cloud rather than clarify the issues; the testimony may be distracting, timeconsuming and costly.’ ” ’ ” (People v. Chatman (2006) 38 Cal.4th 344, 375–376 

(Chatman), italics added; see also People v. Alcala (1992) 4 Cal.4th 742, 781, People v. 

Marshall (1996) 13 Cal.4th 799, 835 (Marshall)). 

 In excluding the proffered expert testimony of Dr. Podboy, the trial court relied 

explicitly on the rule of Chatman, Marshall, and Cooks that attempts to impeach 

witnesses through psychiatric testimony are disfavored. We see no abuse of discretion in 

this ruling. Dr. Podboy had no personal knowledge of either Doe One or Doe Two, and 

 6

 The court in Cooks went on to note that section 1112, which postdated the sex 

offense cases mentioned, prohibited the trial court from ordering the victim in a sexual 

assault prosecution to submit to a psychiatric or psychological examination in order to 

assess his or her credibility. (Cooks, supra, 141 Cal.App.3d at p. 302, fn. 61; see also 

People v. Anderson (2001) 25 Cal.4th 543, 575 [section 1112 overruled cases allowing 

psychiatric examination of complaining witness in sex-crime case to assist in evaluating 

witness’s credibility].) 
11

his general testimony on the possible effects of sexual trauma on memory raises several 

of the concerns enumerated in Chatman: the jury might place too much reliance on 

opinions Dr. Podboy had formed without even examining Doe One or Doe Two, the 

testimony could be so speculative as to cloud the issues, and presentation of the evidence 

could be distracting and time-consuming. 

 Nor do we see any abuse of discretion in excluding the evidence of Dr. Friedman. 

In any case, even if he should have been allowed to testify about referred sensation, 

defendant was able to elicit testimony on this subject when cross-examining two of the 

People’s own witnesses, as well as to present it in his own testimony. Defendant has not 

shown he was prejudiced by the trial court’s ruling. 

B. Ineffective Assistance of Counsel During Trial 

 Defendant contends he was deprived of effective assistance of counsel through his 

attorney’s failure to call or effectively interview Dr. Podboy and Dr. Friedman. In 

support of defendant’s motion for a new trial, Dr. Podboy stated in a declaration that 

defendant’s trial counsel appeared to have little knowledge of the psychological histories 

of the victims, that he did not show interest when Dr. Podboy suggested he investigate 

spina bifida, and that he did not appear to have read the research materials provided by 

Marsha Yates, a friend who was helping defendant in the case. Yates submitted a 

declaration stating that trial counsel did not seem aware of the issues related to spina 

bifida, that he said Podboy was “tainted” as a witness, and that he had not heard 

defendant’s version of events. Dr. Friedman stated in his declaration that he spoke with 

trial counsel once on the phone and received correspondence from him, but otherwise had 

little contact with him about the details of his proposed testimony. 

 “Establishing a claim of ineffective assistance of counsel requires the defendant to 

demonstrate (1) counsel’s performance was deficient in that it fell below an objective 

standard of reasonableness under prevailing professional norms, and (2) counsel’s 

deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ 

that, but for counsel’s failings, defendant would have obtained a more favorable result.” 

(People v. Dennis (1998) 17 Cal.4th 468, 540.) “A court must indulge a strong 
12

presumption that counsel’s acts were within the wide range of reasonable professional 

assistance.” (Id. at p. 541.) “Reviewing courts reverse convictions on direct appeal on 

the ground of incompetence of counsel only if the record on appeal demonstrates there 

could be no rational tactical purpose for counsel’s omissions.” (People v. Lucas (1995) 

12 Cal.4th 415, 442.) Moreover, “[i]f a defendant has failed to show that the challenged 

actions of counsel were prejudicial, a reviewing court may reject the claim on that ground 

without determining whether counsel’s performance was deficient.” (People v. Mayfield

(1997) 14 Cal.4th 668, 784.) Prejudice is established when counsel’s performance “ ‘so 

undermined the proper functioning of the adversarial process that the trial cannot be 

relied on as having produced a just result.’ ” (Ibid., quoting Strickland v. Washington

(1984) 466 U.S. 668, 686.) Prejudice must be proved as a demonstrable reality, not 

simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.) 

 Defendant has not met his burden to show his counsel’s failure to inquire further 

of the proposed expert witnesses or to call them at trial prejudiced him. Trial counsel 

adequately informed the trial court of the substance of Dr. Podboy’s proposed testimony, 

and argued vigorously for its admission. Based on its own analysis of the law, the trial 

court ruled the evidence inadmissible. Trial counsel also explained that Dr. Friedman 

would testify about referred sensation. It would be pure speculation to conclude that the 

trial court would have admitted the testimony of either proposed expert if trial counsel 

had prepared more thoroughly. Moreover, as we have noted, defendant was able to elicit 

from two prosecution witnesses testimony that pressure in one part of the body during 

massage could cause sensation in another part of the body, including painful and 

pleasurable sensations in the genitals. Because defendant has not shown prejudice, we 

need not consider whether his counsel’s performance was in fact deficient. 

C. Motion for New Trial 

1. Motions to Continue 

 As we have explained, defendant was convicted on May 29, 2012, and sentencing 

was originally set for August 3, 2012. In early July 2012, defendant filed a substitution 
13

of counsel,7

 and his new counsel, Duncan James, sought to continue the sentencing in 

order to receive and review trial transcripts and prepare a motion for a new trial. By 

August 16, 2012, James had received all but one of the trial transcripts. The trial court 

granted three continuances, the final one until September 14, 2012. Defendant contends 

that by refusing to grant a longer continuance, the trial court deprived him of the effective 

assistance of his counsel. 

 “Under section 1050, subdivision (e), ‘[a] “trial court has broad discretion to 

determine whether good cause exists to grant a continuance of the trial. [Citation.] A 

showing of good cause requires a demonstration that counsel and the defendant have 

prepared for trial with due diligence.” [Citation.] Such discretion “may not be exercised 

so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” 

[Citation.] “To effectuate the constitutional rights to counsel and to due process of law, 

an accused must . . . have a reasonable opportunity to prepare a defense and respond to 

the charges.” [Citation.]’ [Citation.] ‘[B]road discretion must be granted trial courts on 

matters of continuances; only an unreasoning and arbitrary “insistence upon 

expeditiousness in the face of a justifiable request for delay” violates the right to the 

assistance of counsel.’ ” (People v. Alexander (2010) 49 Cal.4th 846, 934 (Alexander).) 

 In Alexander, the jury reached its penalty phase verdict on March 18, 1996, and a 

hearing on a motion for new trial was set for April 23 (later than the date defense counsel 

had suggested). On March 22, defendant filed a motion for release of the jurors’ 

identifying information so his counsel could interview the jurors to determine whether 

misconduct had occurred that could form the basis of a new trial motion. The trial court 

denied the motion on April 11. (Alexander, supra, 49 Cal.4th at p. 933.) Defendant then 

moved for a continuance of the new trial motion on the ground that his counsel would not 

be prepared to file the motion due to his health and time spent working on another matter. 

(Ibid.) The trial court denied the request, expressing concern that the matter proceed 

without further unwarranted delay, and finding that five weeks was sufficient time to 

 7

 The trial court stated that new counsel had been retained on June 13, 2012. 
14

prepare a new trial motion. (Id. at pp. 933–934.) Our Supreme Court found no abuse of 

discretion in this ruling, concluding that defendant had a reasonable period of time to file 

a new trial motion and reasoning that defense counsel could have prepared other aspects 

of a new trial motion even while awaiting a decision on the motion for disclosure of juror 

information. (Id. at p. 935; see also People v. Snow (2003) 30 Cal.4th 43, 77, 92 [no 

abuse of discretion in denying continuance to investigate theory for new trial motion, 

where defendant had more than two months after verdict to investigate theory and no 

explanation of why records had not been investigated earlier].) 

 We similarly conclude the trial court did not abuse its broad discretion. The 

hearing on the motion for new trial and the sentencing took place three and a half months 

after the jury rendered its verdicts, and more than two months after defendant hired his 

new counsel. In the meantime, the trial court granted three continuances to allow time to 

prepare a new trial motion. Much of the factual support for the expanded new trial 

motion was drawn from declarations of the proposed expert witnesses and Marsha Yates, 

declarations that did not rely on the transcript of proceedings and were presumably 

available through diligent investigation while defense counsel waited for the remainder of 

the trial transcripts. In the circumstances, we cannot conclude defendant did not have a 

reasonable opportunity to prepare his new trial motion (see People v. Sakarias (2000) 22 

Cal.4th 596, 647) or that the trial court’s rulings were unreasonable and arbitrary. 

2. Denial of Motion for New Trial 

 Defendant contends the trial court abused its discretion by denying the motion for 

new trial without allowing him to examine his trial counsel, Schultz, in an evidentiary 

hearing. For this proposition, he relies on People v. Stewart (1985) 171 Cal.App.3d 388 

(Stewart), overruled on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, and 

People v. Dennis (1986) 177 Cal.App.3d 863 (Dennis). The defendant in Stewart had 

asked his trial counsel to argue his own incompetence as a ground for a new trial. 

(Stewart, 171 Cal.App.3d at pp. 391, 393.) At an in camera hearing, the defendant told 

the court he felt he was inadequately represented because his trial counsel had failed to 

call certain witnesses. (Id. at p. 394.) The trial court denied the motion. (Ibid.) On the 
15

facts of that case, the Court of Appeal reversed. The court stated, “Where a defendant 

requests a substitution of new counsel after trial in order to assist in the preparation of a 

motion for new trial based on the inadequacy of trial counsel, we believe it imperative 

that, as a preliminary matter, the trial judge elicit from the defendant, in open court or, 

when appropriate, at an in camera hearing, the reasons he believes he was inadequately 

represented. . . . [¶] Once a trial judge is informed of the facts underlying a defendant’s 

claim of inadequate assistance, he is then in a position to intelligently determine whether 

he may at that point fairly rule on the defendant’s motion for a new trial, or whether new 

counsel should be appointed to more fully develop the claim of inadequate 

representation.” (Id. at pp. 395–396.) The Court of Appeal concluded that as to one of 

the witnesses defendant claimed should have been called, the trial court was in a position 

to evaluate the materiality of that testimony and correctly ruled it did not warrant a new 

trial. (Id. at p. 397.) As to the other two, though, the record did not disclose what their 

testimony would have been, and the trial court’s failure to inquire into their expected 

testimony was error. (Id. at p. 398.) The matter was remanded for the trial court to 

inquire more fully into the basis for the motion for new trial and either appoint new 

counsel or grant the motion if the defendant presented a colorable claim of ineffective 

assistance; if further inquiry did not disclose a colorable claim, the motion could be 

denied. (Ibid.) Thus, Stewart considered the trial court’s duty to make a careful inquiry 

of a defendant of the basis for his complaint about his counsel, and does not stand for the 

proposition that a trial court must allow a full evidentiary hearing on a motion for a new 

trial. 

 The question before the court in Dennis was whether the district attorney could be 

barred from participating in a motion for new trial based on claimed ineffective 

assistance of counsel. (Dennis, supra, 177 Cal.App.3d at p. 866.) The trial court there 

had granted a motion for new trial based solely on an in camera Marsden motion for 

substitution of court-appointed counsel in which the prosecutor did not participate. (Id. at 

pp. 868, 872; People v. Marsden (1970) 2 Cal.3d 118.) The Court of Appeal agreed with 

the People that it was error to grant the new trial without an opportunity for the 
16

prosecution to present evidence or argument. (Dennis, supra, 177 Cal.App.3d at p. 872.) 

In doing so, the court in Dennis explained: “Where a defendant contends that a verdict 

was the result of ineffective assistance, he bears the burden of proving the claim. 

[Citation.] To meet this burden the defendant must prove two things: (1) that counsel 

failed to act as a reasonably competent attorney acting as a diligent advocate, and (2) that 

counsel’s errors or omissions resulted in the withdrawal of a potentially meritorious 

defense or that it is reasonably probable a more favorable result would have occurred in 

the absence of counsel’s failings. [Citations.] When this burden is met then the inquiry 

must be directed to whether there is an explanation which shows that counsel did in fact 

act in the manner of a diligent and conscientious advocate. [Citations.] Conduct which 

might appear incompetent on its face might well be explained with evidence dehors the 

record. [Citation.] In [People v. Pope (1979) 23 Cal.3d 412 (Pope)] and [People v. 

Fosselman (1983) 33 Cal.3d 572 (Fosselman)], the court recognized that claims of 

ineffective assistance of counsel will frequently be unresolvable on the record. In such 

circumstances the court expressed a preference for an evidentiary hearing where the 

matter may be fully explored. (Pope, supra, 23 Cal.3d at p. 426; Fosselman, supra, 33 

Cal.3d at pp. 581–582.)” (Dennis, supra, 177 Cal.App.3d at p. 872.) 

 The cited portions of Pope and Fosselman, however, do not establish that a trial 

court may not rely on declarations and other documentary evidence to decide a motion 

for new trial based on ineffective assistance of counsel. Rather, each case recited the 

well-established rule that where the record does not show the basis for counsel’s 

challenged acts or omissions, a claim of ineffective assistance is appropriately made in a 

petition for habeas corpus, in which there is an opportunity for an evidentiary hearing, 

rather than on direct appeal. (Pope, supra, 23 Cal.3d at p. 426; Fosselman, supra, 33 

Cal.3d at pp. 581–582.) 

 Indeed, as our high court explained in People v. Superior Court (Zamudio) (2000) 

23 Cal.4th 183, 201 (Zamudio), “ ‘There is simply no authority for the proposition that a 

trial court necessarily abuses its discretion, in a motion proceeding, by resolving 

evidentiary conflicts without hearing live testimony.’ [Citation.] [¶] . . . California law 
17

affords numerous examples of a trial court’s authority, in ruling upon motions, to resolve 

evidentiary disputes without resorting to live testimony.” Among the cases the court 

cited with approval was People v. Cox (1991) 53 Cal.3d 618, 697 (Cox) (disapproved on 

another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), which it 

characterized as holding that “whether to conduct live hearing on new trial motion 

alleging juror misconduct is within court’s discretion.” (Zamudio, supra, 23 Cal.4th at 

p. 201.) Cox, in turn, explained that in an earlier case, People v. Hedgecock (1990) 51 

Cal.3d 395, 415–416, the court had concluded that an evidentiary hearing on a motion for 

new trial made on the ground of juror misconduct “ ‘should be held only when the trial 

court, in its discretion, concludes that an evidentiary hearing is necessary to resolve 

material, disputed issues of fact.’ ” (Cox, at p. 697; accord, People v. Williams (1997) 16 

Cal.4th 635, 686.) 

 We see no reason to apply a different rule here. The trial court was in a position to 

see and evaluate the performance of trial counsel, as well as the effect any alleged 

deficiencies may have had on the outcome of the trial. (See People v. Wallin (1981) 124 

Cal.App.3d 479, 483 [trial judge best situated to determine competency of trial counsel].) 

We recognize that some of the claimed incompetency was based on counsel’s actions 

away from the courtroom, such as his alleged failure to interview the expert witnesses 

properly. However, the trial court made clear that it excluded the testimony of Dr. 

Podboy based on its own review of the law. Moreover, defendant submitted declarations 

of Dr. Podboy and Dr. Friedman in support of the motion for new trial, as well as the 

declaration of Marsha Yates, and the trial court was in the best position to determine 

whether its rulings on the admissibility of evidence would have been any different if that 

information had been before it during the trial. In the circumstances, we find no abuse of 

discretion in the trial court’s ruling on the motion for new trial without allowing the live 

testimony of trial counsel. 

D. Hearing Accommodations 

 Defendant contends the accommodations made for his hearing disability deprived 

him of a fair trial. (People v. Guillory (1960) 178 Cal.App.2d 854, 861 [trial judge 
18

should afford deaf defendants reasonable facilities for confronting and cross-examining 

witnesses].) The requirement of reasonable accommodations has been codified in Civil 

Code section 54.8, which requires trial court to provide, upon request, “a functioning 

assistive listening system or a computer-aided transcription system.” 

 Our high court considered and rejected a similar contention in People v. Freeman 

(1994) 8 Cal.4th 450, 479–480 (Freeman). The defendant there had hearing difficulties, 

and counsel and the trial court took repeated steps to resolve the problem: the court 

ordered medical treatment when the defendant requested it and made sure he got batteries 

for his hearing aids, and the defendant was given a daily transcript of the proceedings. 

(Id. at p. 479.) Moreover, “except for a few scattered early occasions, whenever 

defendant was spoken to he responded with no apparent hearing difficulty.” (Ibid.) Even 

if he occasionally failed to hear something, the high court reasoned, there was no reason 

to assume he missed anything of significance or could not participate effectively in the 

proceedings. (Ibid.) 

 The trial court here was aware that defendant needed accommodations for his 

hearing disability, and provided them. As the court explained in denying the motion for 

new trial, defendant was in fact provided with both the accommodations specified in 

Civil Code section 54.8. He was able to view a computer-aided transcription system, a 

“realtime feed,” and he had the use of a headset, although he asserted in his motion for 

new trial that it did not allow him to hear voices adequately. The trial judge also stated 

that he was aware of defendant’s hearing difficulties and as a result “did purposely and 

intentionally throughout the proceeding observe Mr. Slape,” and that he appeared to be 

reading along to the realtime. When he was testifying, defendant said on a few occasions 

that he could not hear a question, but otherwise responded to questions posed by counsel, 

and the trial judge stated that in his opinion, defendant had “no trouble hearing or 

answering any of the questions asked in an appropriate witness-to-examiner response, 

none.” Here, as in Freeman, defendant has not shown he was prejudiced or denied a fair 

trial. (Freeman, supra, 8 Cal.4th at pp. 479–480.) 
19

E. Cruel and Unusual Punishment 

 Defendant contends his seven-year sentence—the six-year mid-term for count one 

and an additional one-year term for count two—constituted cruel and unusual 

punishment. This is so, he argues, because he is 73 year old, he “displayed many good 

qualities,” he “believed his actions were medically beneficial to the Jane Does,” and he 

had no prior criminal record. Moreover, he contends, the trial court relied on a probation 

report that was incomplete because, on the advice of counsel, he did not discuss the 

charges with the probation officer while his new trial motion was pending. 

 We may dispose quickly of defendant’s claim that the sentence was improper 

because he believed his actions were medically beneficial to his victims. The jury 

decided otherwise when it found him guilty, and there is substantial evidence to support 

its verdict. Nor has defendant persuaded us that the presentence report was inadequate 

because he had not yet discussed the crimes with the probation officer. A presentence 

report must include the defendant’s statement only “ ‘if one is given’ ” (People v. 

Goodner (1992) 7 Cal.App.4th 1324, 1330–1331; see also Cal. Rules of Court,8

rule 4.411.5(a)(4)), and defendant chose not to give one. 

 The standards for evaluating a claim that a sentence constitutes clear and unusual 

punishment are well established. “A punishment is excessive under the Eighth 

Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is 

‘grossly out of proportion to the severity of the crime.’ [Citation.] A punishment may 

violate article I, section 17 of the California Constitution if ‘it is so disproportionate to 

the crime for which it is inflicted that it shocks the conscience and offends fundamental 

notions of human dignity.’ [Citation.] [¶] In determining whether a particular 

punishment is cruel and/or unusual, courts examine the nature of the particular offense 

and offender, the penalty imposed in the same jurisdiction for other offenses, and the 

punishment imposed in other jurisdictions for the same offense.” (People v. Alvarado

(2001) 87 Cal.App.4th 178, 199.) Defendant makes no claim that his sentence is 

 8

 All rule references are to the California Rules of Court. 
20

disproportionate to either the penalty imposed in California for other offenses or the 

punishment imposed in other states for the same offenses. 

 We see no gross disproportion between defendant’s offenses and his sentence. 

The trial court discussed the aggravating and mitigating factors: As aggravating factors, 

the victims were both vulnerable in that they were in pain and seeking treatment (Cal. 

Rules of Court, rule 4.414(a)(3)); each victim suffered emotional trauma (rule 

4.414(a)(4)); defendant was an active participant (rule 4.414(a)(6)); and defendant acted 

in a sophisticated manner by engaging the victims in extensive discussions about pain 

and took advantage of a position of trust when his victims were unrobed (rule 4.414(a)(8) 

& (9)). The court also expressed concern that the testimony of M.G. indicated defendant 

had a long history of sexual misconduct, and that at the time of his crime against Doe 

Two, the charges relating to Doe One were already pending. In mitigation, the court 

noted that defendant had no prior criminal record (rule 4.414(b)(1)); the court also noted 

defendant’s advanced age, poor health, and the fact that a methodology for evaluating 

future risk, the Static-99, indicated a low risk of reoffense. These factors are supported in 

the record, and support the trial court’s decision to deny probation and sentence 

defendant to the mid-term for count one and a consecutive term for count two.9

 

 9

 Because we reject each of defendant’s claims of error, we also reject his claim 

that cumulative error requires reversal. 
21

III. DISPOSITION 

 The judgment is affirmed. 

 _________________________ 

 Rivera, J. 

We concur: 

_________________________ 

Ruvolo, P.J. 

_________________________ 

Humes, J.