Video testimony of quadriplegic was properly shown to jury where defendant had opportunity to cross-examine victim during the conditional examination. McCoy physically and sexually assaulted his girlfriend, Cindy H., rendering her a quadriplegic. Because Cindy was extremely ill at the time of the preliminary hearing and because her medical condition provided reasonable grounds to fear that she would be unable to testify at trial, she was examined via two-way video conference. The video was played during trial because Cindy was unable to testify. McCoy was convicted of multiple offenses and sentenced to 25 years to life in prison. On appeal, McCoy argued that the introduction of Cindy’s conditional examination violated his Sixth Amendment right to confrontation because the video equipment was not set up to allow him face-to-face confrontation, and also because he possessed a substantially different motive in cross-examination during the conditional cross-examination than he did at trial. The appellate court found the first issue forfeited because of McCoy’s failure to object to the manner in which the video equipment was set up. Had he objected, the camera could easily have been turned to allow Cindy to face McCoy. The court also rejected the argument that McCoy’s motives for cross-examination were different at trial than they had been during the conditional examination.
It was not error to allow amendment of the information to add torture allegations that were supported by evidence taken at the preliminary hearing. McCoy also argued that it was error to allow the prosecution to amend the information to add One Strike torture allegations on the sexual penetration count. He contended that he was prejudiced because had he known of the allegation, he would have cross-examined Cindy differently. The appellate court rejected the argument. Unlike People v. Graff (2009) 170 Cal.App.4th 345, the information in this case was not amended to add a charge or enhancement allegation that was not established at the preliminary hearing. Further, McCoy had adequate opportunity to cross-examine Cindy H. concerning the facts surrounding the torture during the conditional examination. The amendment was supported by evidence taken at the preliminary hearing, and thus supplied sufficient notice to satisfy McCoy’s due process rights.
The trial court did not err by instructing the jury with CALCRIM No. 1045. On appeal, defendant argued that his conviction for sexual penetration (Pen. Code, § 289, subd. (a)(1)(A)) should be reversed because CALCRIM No. 1045 failed to relate the necessary mental state of sexual abuse, gratification, or arousal to the means by which the sexual penetration is accomplished, i.e., the application of force or fear. The appellate court rejected this argument. Unlawful sexual penetration requires that the act of penetration be done with the specific intent to gain sexual arousal or gratification or to inflict abuse. This intent requirement does not extend to the act of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. CALCRIM No. 1045 accurately described the crime of unlawful sexual penetration and the court did not err by giving the instruction. Further, any error would be harmless based on the circumstances of this case.