NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

FRANSON, J.

Appellant Justin Lee Anderson appeals from his conviction of one count of violating Penal Code section 288.5, subdivision (a)1 (continuous sexual abuse of a child—his stepdaughter). He raises only one issue on appeal: that the trial court erred in granting a continuance in the middle of the trial to permit the prosecution to have DNA analysis performed on certain items of evidence brought to the prosecution's attention on the first day of trial. For the reasons discussed below, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's wife, Rebecca Anderson, shared custody of Trinity W. with her ex-husband, Trinity's biological father. While driving Trinity to her father's home on November 1, 2009, Trinity spontaneously commented to Ms. Anderson that appellant "put something hard in her mouth." When Ms. Anderson pressed her for further details, Trinity described the object appellant put in her mouth as "soft and squishy, and something squirts out of it." Trinity was eight years old at the time of the last alleged incident, which was the previous night, October 31, 2009.

At trial, Trinity testified to the following:

On 10 different occasions — five in her bedroom and five in the living room of the apartment where she lived when staying with her mother, appellant blindfolded her either with a long sock or an eye mask, "st[u]ck[] something in [her] mouth at night or in the day," that "liquid came out of it," that tasted "gross," and the object going into her mouth was "[h]ard and squishy." She testified appellant would "shake" the object and then "[h]e would be done." On one occasion, she spit out the "liquid that came out of the squishy thing" into the toilet and noticed it was white in color. Trinity also testified on one occasion she spit out the liquid into her blanket. Trinity's mother had given her medicine on prior occasions, which she testified tasted like grape, cherry, or strawberry, but "the stuff that came out of the thing that [appellant] put in [her] mouth" tasted "[n]asty."

Appellant's defense at trial was that Trinity was describing a medicine dispenser akin to a kitchen baster that he used to administer medicine to her on those occasions. He also testified he had a vasectomy approximately one and a half years earlier. Defense counsel questioned him point blank whether there was a possibility that "any of your ejaculate will be on that pink blanket?" Appellant answered, "No."

The Bedding

On November 2, 2009, Ms. Anderson told Detective Spencer Garrett that she would gather Trinity's bedding from the apartment and set it aside for him to pick up, and would call him to notify him when she did so. When Ms. Anderson later called Detective Garrett, however, she informed him she had returned to live in the apartment with her husband, appellant, after spending several days at her parents' home. She testified Detective Garrett made it clear to her then that he assumed she was no longer cooperating with the investigation and she had already washed the sheets. Ms. Anderson told him she was still cooperating and he could come over to the apartment to get the bedding, but did not counter his assumption she had already washed the bedding, nor did she tell him she had placed the bedding in a plastic bag in the apartment closet. Detective Garrett made no further follow-up to obtain the bedding until he found out on the first day of trial that Ms. Anderson had preserved the blankets in a plastic bag and had not washed the sheets since before Halloween.

Defense counsel suggested Detective Garrett and the prosecution retrieve the bedding that evening to test for evidence. Detective Garrett did pick up the evidence and had it tested that night for biological fluids. He testified to several spots of biological fluid detected on the three articles collected. Samples were sent to a lab to have DNA analysis performed.

Outside the presence of the jury, on the second day of trial, a criminalist testified she found seminal fluid on the blanket, consistent with a vasectomized or azoospermic (low sperm count) male. Further tests could be run to identify the individual who was the source of the seminal fluid. The prosecution requested a continuance to await the results of the DNA analysis. The court expressed its initial reluctance to grant the continuance, noting "this is sort of the thing that could have happened months ago, but now we're here in the middle of trial," and further commented he considered the prosecution neglectful in failing to obtain the evidence earlier and was not inclined to continue the trial for a month. The court also acknowledged, however, that the results could be beneficial to the defense, commenting to defense counsel, "[o]bviously, you have a lot to gain if it comes back negative to your client, and it wouldn't be definitive one way or another. But it would certainly be evidence that the jury would be very interested in hearing, seminal fluid on the blanket did not belong to him."

Over appellant's objection, the next day, May 7, 2010, the court granted the continuance, commenting for the record, "the Court was initially in accord with [defense's] position on it, but ultimately determined ... in the interest of justice and the prospect of actually resolving the case, more heightened by permitting this evidence to be — to be analyzed and offered, if there is any probative evidence with respect to this."

The court polled the jury to determine their availability for a lengthy continuance that would accommodate everyone's schedules and set a date to reconvene of June 17, 2010. Appellate remained out of custody on bail. At a status hearing, the prosecution noted the results had come in as of June 1, and defense counsel had requested the results sent to his expert. The jury and parties did reconvene on June 17, but only to reschedule once more and set the last day of trial on July 21, 2010, due to an issue with defense counsel's health.

Thus, on July 21, 2010, two criminalists testified about the evidence found on Trinity's blanket and fitted sheet. DNA analysis resulted in two conclusions: 1) a mixture found on the blanket of enzymes commonly found in high concentrations in saliva and seminal fluid was contributed by Trinity and appellant; and 2) semen on the fitted sheet was deposited by appellant.

After the criminalists testified, counsel gave their closing arguments and submitted the matter to the jury for deliberations. Approximately a half-hour later, the jury returned with a guilty verdict.

The trial court denied appellant's motion for new trial and sentenced him to a midterm sentence of 12 years.

DISCUSSION

Appellant contests his conviction solely on grounds his state and federal constitutional rights to due process and fundamental fairness were violated when the trial court granted the prosecution's mid-trial request for a six-week continuance to permit DNA testing on the samples recovered from appellant's apartment. We disagree.

"[I]t shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice." (§ 1050, subd. (a).) Trial courts may grant a continuance upon a showing of good cause. (§ 1050, subd. (e).) "Whether good cause exists is a question for the trial court's discretion. [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 450 (Doolin).) When determining whether good cause has been shown, the court must consider "the general convenience and prior commitments of all witnesses," (§ 1050, subd. (g)(1)) and may only grant a continuance "for that period of time shown to be necessary by the evidence considered at the hearing on the motion." (§ 1050, subd. (h)(i).)

"The granting or denial of a motion for a continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." (People v. Laursen (1972) 8 Cal.3d 192, 204 (Laursen).)

In connection with review of a denial of a continuance, our Supreme Court has said, "[a] reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. [Citation.]" (Doolin, supra, 45 Cal.4th at p. 450.) As applied generally to a trial court's exercise of discretion, we look here to determine whether the trial court's granting of a continuance under the specific facts of the case before us was so arbitrary as to deny due process, prejudicing appellant. We conclude it was not.

The trial court made a carefully deliberated determination when it concluded to permit the continuance, as demonstrated through the court's initial misgivings about the prosecution's possible lack of due diligence in securing the evidence2 and subsequent reconsideration. The court contacted the parties later by conference call to inform them it had changed its mind in the interest of justice, which is the ultimate determinant in the trial court's decision-making process for the granting or denial of the motion. (See Laursen, supra, 8 Cal.3d at p. 204.)

At the time the trial court was making its decision, both parties had presented their cases in chief to the jury, with the exception of the prosecution presenting the results of the DNA analysis. The jury knew already that biological fluids were present on the collected items, but did not know the source. Appellant had testified his ejaculate would not be found on the bedding. The DNA analysis, as the court noted during the hearing on the motion for continuance, could come out in favor of either side, and would be beneficial to the jury's decision-making process in either case.

The trial court, moreover, polled the jury to determine availability and inconvenience in granting the continuance and initially had found none. When the June 17, 2010, date was finally selected, however, the court did find it necessary to excuse one juror and, by stipulation of the parties, substituted in an alternate juror. The court also made accommodations for the reporter's transcript to be available for the attorneys and jurors upon their return to the trial.

On the record before us, the circumstances of this case are unique. The victim's mother, living with appellant, had preserved and stored evidence in a plastic bag, unbeknownst to the police or the prosecution until trial. Both parties had presented their entire cases in chief with the exception of the DNA analysis results, which results could have been beneficial to either party. The trial court clearly took into consideration the benefit of the DNA analysis results to the case, the burden on the witnesses, jurors, and the court, and explicitly acknowledged the decision was made in the interest of justice and a final resolution to the matter. Based on these unique circumstances, we conclude the trial court properly exercised its discretion in granting the motion for a continuance. Finally, the main thrust of appellant's argument focuses on the length of the continuance, rather than on the continuance itself, suggesting that a one-week continuance would not have been as prejudicial as a six-week continuance. However, given the unique facts and posture of this case, the record does not support a finding that appellant suffered any additional difficulties with the six-week continuance than he would have with a one-week continuance.

DISPOSITION

The judgment is affirmed.

Gomes, Acting P.J. and Kane, J., concurs.