Filed 6/21/99 CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. RANDALL BLAINE PIERCE, Defendant and Appellant. F027557 (Super. Ct. No. 33065) OPINION APPEAL from a judgment of the Superior Court of Stanislaus County. William A. Mayhew, Judge. K. Douglas Cummings, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Robert P. Whitlock and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Randall Blaine Pierce was convicted by a jury on one count of oral copulation by force or fear (a violation of Pen. Code,1  288a, subd. (c), count one), one count of sodomy by force or fear (a violation of  286, subd. (c), count two) and one count of false imprisonment (a violation of  236, count three). He was sentenced to a term of 12 years 8 months in state prison. On April 25, 1995, this court reversed the conviction (People v. Pierce (Cal.App.) No. F020282, opn. deleted upon direction of Supreme Court by order dated July 27, 1995), finding appellant had been denied a fair trial because one of the jurors had been mentally incompetent. Appellant's second jury trial began December 2 and ended December 6, 1996, when the jury returned its verdict of guilty on all counts. On January 7, 1997, appellant was sentenced to a total term of 16 years in state prison. The court imposed the upper term of eight years on counts one and two as full consecutive terms, and a two-year midterm on count three, to run concurrently to the terms imposed on counts one and two. In this timely appeal appellant challenges both the convictions and the sentence on numerous grounds. We find merit only in his claim that the court erred in imposing a greater sentence than that imposed after the first trial. We will remand for resentencing. FACTS Appellant and Carla T. dated briefly in 1990. Their relationship included a consensual sexual relationship. On the evening of January 4, 1992, Carla was leaving an Alcoholics Anonymous (AA) meeting with her friend Wayne Vail. Appellant approached the two in the parking lot. Appellant told Carla he wanted her to come with him and talk to "some people" about her current boyfriend, who appellant claimed was in "trouble." Carla told appellant to get into the car and the three drove off. She then dropped Vail off at another meeting and appellant took over the driving duties. After driving around for awhile, Carla called her baby-sitter and asked her if her two small children could stay the night because she did not know how long she would be. Once child care was arranged, appellant and Carla went to the home of Bob Loux. At the Loux home, appellant showed Carla some bullet holes in a door which he said were the result of Loux killing someone in the house recently. Appellant also told Carla there were a bunch of teenagers outside who would enter the home if they heard a commotion. At one point, Carla started to sit on the floor, but appellant told her in a firm voice to come sit on his lap. He then tried to touch her breast and she told him to stop. When she got up and walked away, he followed her. Appellant told Carla he had some tapes of her boyfriend he wanted her to hear and he pushed and prodded her to the bedroom. She went unwillingly. When they arrived at the bedroom, appellant asked her if she were afraid. When Carla said "yes," appellant said she need not be, but then told her how he had physically abused another woman who had refused him and tried to run away. Appellant then ordered Carla to take off her clothes. He held her arms behind her back and placed her in front of a mirror. He fondled her breasts. When Carla said she didn't want to have sex with him, appellant said she did not have a choice. Appellant then forced her to orally copulate him. After this act, appellant applied lotion, turned Carla over and sodomized her. She asked him to "please don't do this" and he responded "this is something I have to do." Carla screamed, but appellant covered her mouth with his hand. After the assault, appellant laid on top of Carla. Later she believed he was asleep and she tried to get up to leave, but he awoke and restrained her. This happened several times during the night. Carla was afraid throughout the night because of the violent comments appellant had made, because she did not know or trust Loux, because she knew appellant was a black belt in tai kwon do, and because appellant threatened to take her to a cabin and lock her in it. She also considered his story about the other woman who had resisted him a threat. She believed appellant was under the influence of "speed or something." Finally, at dawn, January 5, 1992, Carla told appellant she loved him and would start seeing him again in the hopes he would let her go. Appellant did. Carla drove to pick up her children and then returned home. She took a shower, trying to get "clean," and started crying. She called her AA sponsor and told her what had happened. The sponsor urged her to report the offense, but Carla said "no" because she feared she would be killed if she did. She went to visit her mother who lived on the property in a separate house. Her mother noticed Carla was agitated and very upset. Carla told her she had been "kidnapped" by Pierce and held by him all night. When her mother asked if she had been raped, Carla responded "yes." The next day, January 6, 1992, Carla did talk to a rape crisis counselor who also suggested Carla report the offense. After talking with the counselor, Carla agreed to go to the hospital and called police. At the hospital, a rape kit examination was done. Both the emergency room physician, Dr. Max Miller, and the attending nurse, Ms. Jackie Tomlinson, testified at trial. Dr. Miller testified when he examined Carla, she had a reddened, irritated external anus and that her physical exam was consistent with her history, i.e., that she had been forcibly sodomized. He also testified Carla had a "depressed affect," looked sad and had downcast eyes. This was consistent in Dr. Miller's experience with the demeanor of other rape victims. Nurse Tomlinson testified Carla had a flat affect, was very quiet and was "blank," which in her experience was consistent with the demeanor of other victims of rape. Both stated they did not know whether the sexual contact was consensual or not. At the hospital, Sheriff's Deputy Douglas Unruh and Detective Jim Silva took statements from Carla concerning the offense. Unruh said Carla appeared traumatized. Silva said she was nervous, avoiding eye contact and was reluctant to discuss the attack. Detective Silva collected the sheets from Loux's house. A criminologist found seminal fluid on the sheets. Silva also found two bottles of lotion in the bedroom, one of which had the lid off. At trial, Cynthia S. testified concerning her former relationship with appellant, including a consensual sexual relationship. During the relationship, appellant was physically abusive towards her. On March 3, 1990, appellant showed up at a residence where Cynthia was present and grabbed her by the hair, slamming her into a wall before forcing her into a car. At one point she ran from the car and hid behind a bush, but appellant found her. He told her he would kill her if she did not get back into the car and he grabbed her by the neck and hair taking her back to the car. He then drove to a motel room where he forced her with threats to orally copulate him and raped her. Cynthia S. did file charges against appellant and the case was resolved when appellant pled guilty to assault likely to produce great bodily injury. DEFENSE Appellant testified in his own behalf. He admitted having sexual contact with Carla but claimed it was consensual. He claimed he never threatened her or forced her to do anything at the Loux home. He also denied being under the influence of narcotics, although he testified he was a heavy drug user and alcohol drinker during this period. His testimony differed significantly from Loux's testimony and from his own previous testimony on a number of points. Loux testified he spent 45 minutes visiting with appellant and Carla before retiring and that Carla was "very friendly" with appellant. He stated Carla sat on appellant's lap, although he admitted not being able to hear what was said between them because he was not wearing his hearing aids. He also stated he would not have been able to hear any unusual noises or yelling that night. Appellant also denied raping Cynthia S., although he admitted their relationship ended in a "very ugly domestic scene." He claimed their 1990 sexual encounter at the motel was consensual. DISCUSSION I. The Testimony of the Emergency Room Physician and Nurse Was Properly Admitted.* Appellant contends the testimony of Dr. Miller and Nurse Tomlinson was improperly admitted at trial and prejudiced the trial's result. At trial, there was strenuous objection by defense counsel to the introduction of the testimony from these two individuals. Defense counsel argued the evidence was impermissible rape trauma evidence which was being offered to prove the alleged forcible sex acts occurred. At trial, both individuals were qualified through testimony of their past experience in treating and examining victims of rape, and both testified Carla's demeanor and physical examination were consistent with her complaint. Syndrome evidence such as rape trauma syndrome, battered women's syndrome, and childhood sexual abuse accommodation syndrome has been recognized as helpful to the jury on a variety of issues. It is undisputed, however, such evidence cannot be used to prove the abuse or rape occurred-this remains the province of the jury. (People v. Bledsoe (1984) 36 Cal.3d 236, 251; People v. Erickson (1997) 57 Cal.App.4th 1391, 1401.) Evidence that a victim is suffering from an emotional or psychological injury consistent with the kind suffered by other victims is not generally permitted when its only relevance is to establish the assault or abuse occurred. However, the same evidence might be permitted if it explains a behavior of the victim which is inconsistent with what a layperson might expect from a victim. (People v. Bledsoe, supra, at pp. 247-248; People v. McAlpin (1991) 53 Cal.3d 1289, 1301-1302; People v. Day (1992) 2 Cal.App.4th 405, 417-418, disapproved on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1085-1089.) As this court explains in People v. Day: "Evidence that explains rape trauma syndrome, child sexual abuse accommodation syndrome and BWS (battered women's syndrome) informs the finders of fact that how they think the average reasonable person would behave and/or how they think they personally would behave are not necessarily the same way that people who have been raped, molested or battered in fact behave. It bears repeating that we have difficulty accepting what we do not understand. Depriving the finder of fact of such understanding may well lead to a conclusion based on misconceptions held in good faith. That such conceptions are held in good faith in no way lessens the magnitude of the error and the injustice that may result." (2 Cal.App.4th at p. 419.) Each court which has addressed the admissibility of this type of evidence has without fail noted the great potential for its misuse, primarily because it comes from someone society considers an "expert" and therefore, the jury is likely to accept the expert's opinion as inherently credible. (See People v. Housley (1992) 6 Cal.App.4th 947, 958.) As a result many courts require such evidence be restricted to its allowable purpose and that the jury be given proper limiting instructions. (See People v. Humphrey, supra, 13 Cal.4th at pp. 1095-1096 (conc. opn. of Brown, J.) and cases cited therein; People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.) Respondent argues in this case the evidence in question is not syndrome evidence and cites People v. Coleman (1989) 48 Cal.3d 112 in support of its argument that the evidence was properly admitted as relevant to the issue of consent. We agree. The testimony of the doctor and nurse in this case did not address the psychological impact of the assault. It did not attempt to prove the offense by virtue of the emotional trauma suffered. Both Dr. Miller and Nurse Tomlinson testified they could not say whether the sex acts Carla complained of were consensual. Nor did either testify they believed Carla was telling the truth. They merely testified her affect and demeanor were consistent with that of other victims. This was relevant evidence because it assisted the jury in evaluating Carla's credibility. In Coleman, the Supreme Court found evidence from a counselor describing the emotional and psychological state of a victim is relevant and admissible as circumstantial evidence on the question of whether a defendant had a reasonable and good faith belief the victim consented. (People v. Coleman, supra, 48 Cal.3d at p. 143.) Other courts have allowed such evidence to explain a delay in reporting, inconsistencies in versions of the event, a certain demeanor or absence of an expected demeanor in a victim, or the failure to offer resistance to an attack. (See Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 261; People v. Housley, supra, 6 Cal.App.4th at p. 955; People v. Humphrey, supra, 13 Cal.4th at pp. 1088-1089.) All of these indirectly address the credibility of the victim. In this case, appellant placed Carla's credibility squarely at issue when he argued the acts were consensual. Although appellant never argued Carla's demeanor at the hospital proved she was lying, defense counsel did argue her failure to resist and/or leave suggested she fabricated the assault. And, both appellant and defense counsel offered a motive to lie, thereby attacking Carla's credibility. Even if the evidence in this case crossed the line delineated in People v. Bledsoe, supra, 36 Cal.3d 236, it was not prejudicial. The testimony of Dr. Miller and Nurse Tomlinson was short, limited and not particularly important in light of the entire record. Both admitted they could not say whether the acts were forcible or consensual. In contrast, Carla's and appellant's testimonies were much more significant. Appellant's testimony was riddled with inconsistencies, and there was substantial conflict between his testimony at this trial and that of the previous trial. There was also significant conflict between appellant's version of events and that of his key witness, Bob Loux. Carla's version, however, was generally consistent and credible. The testimony of the emergency room staff was properly admitted and in any event, not prejudicial. II. Carla's Statements to Others That She Had Been Raped Were Properly Admitted.* A. The Evidence Was Admissible For Nonhearsay Purposes Appellant argues it was error for the trial court to allow evidence of Carla's statements to others that she had been "raped." Appellant contends the testimony of Dr. Miller, Paula Jenkins, Lavona Dill, Officer Unruh and Detective Silva relating what Carla told them constitutes impermissible hearsay evidence which is not admissible as prior consistent statements under Evidence Code section 791 or as "fresh complaints" or "spontaneous declarations" -the latter, characterizations of the evidence by the prosecutor at trial. There is a Supreme Court decision directly on point which holds the evidence admissible for nonhearsay purposes. People v. Brown (1994) 8 Cal.4th 746, 762- 7634 expressly holds "that evidence of the fact of, and the circumstances surrounding, an alleged victim's disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance." Setting aside what the court labeled the "erroneous premise of the fresh- complaint doctrine," the court explained evidence of circumstances surrounding a crime victim's disclosure or report of the offense is relevant to a determination of whether the offense actually occurred. (Id. at pp. 759-761.) The court rejected the same argument made here by appellant, i.e., the evidence is not admissible because the statements do not fall within the relatively strict constraints of the "fresh complaints" doctrine or the "spontaneous declaration" exception to the hearsay rule. The court stated the issue of delay in making a complaint, or a determination the complaint was not made "spontaneously" but in response to another's inquiry, is simply a factor to be considered by the jury in assessing the weight of the victim's statements. (People v. Brown, supra, at p. 763.) The witness, however, should not be allowed to go into the details of the extrajudicial complaint. Such evidence should be limited to the "fact of the making of the complaint and other circumstances material to this limited purpose...." (Ibid.) This prevents the jury from viewing the details of the complaint as proof of the underlying charge. In this case, the evidence was limited to the report and the circumstances surrounding it. The prosecutor did not ask the witnesses to describe the report in detail and they did not do so.5 The nature and circumstances of Carla's reports were extremely relevant given appellant's claim the acts were consensual. Contrary to appellant's assertion in his opening brief, the defense did imply Carla had fabricated her story after engaging in consensual sexual activity. As we noted in footnote 3, ante, both appellant and his trial counsel suggested motives to lie. That Carla reported the offenses, and the circumstances surrounding the reports, assisted the jury in evaluating her credibility. Thus, the evidence was properly admitted for this nonhearsay purpose. B. The Evidence Was Not Inadmissible Under Evidence Code Section 352 Appellant contends in the alternative the testimony of those who spoke with Carla about the assault was more prejudicial than probative and therefore inadmissible under Evidence Code section 352. We disagree. Review of a trial court's decision pursuant to Evidence Code section 352 is subject to an abuse of discretion analysis. (People v. Clair (1992) 2 Cal.4th 629, 654-655.) A trial court's decision to admit evidence under this section will be reversed only upon a clear showing of abuse. (People v. Turner (1990) 50 Cal.3d 668, 703-705; People v. Tamborrino (1989) 215 Cal.App.3d 575, 588; People v. Stewart (1985) 171 Cal.App.3d 59, 65.) As stated above, the evidence is highly probative. Bolstering a witness's credibility is an appropriate purpose for admitting evidence, especially when the credibility is placed at issue by the defense. (People v. Scheid (1997) 16 Cal.4th 1, 15.) Nor can we see how it prejudices appellant unfairly. It may be cumulative, but cumulative evidence is permissible when it is probative. (See In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) Undoubtedly the evidence was harmful to the defense, but this is not the standard of prejudice under Evidence Code section 352. (People v. Zapien (1993) 4 Cal.4th 929, 958.) The evidence is highly probative and merely confirms Carla's testimony at trial. It does not inflame, mislead or deflect the jury's attention from its task. It does not encourage the prejudging of appellant based on extraneous factors. We find no abuse of discretion in admitting the evidence. Appellant also briefly challenges the admission of the hospital records "containing [Carla's] story" as erroneous on the same grounds that he objects to the evidence of Carla's reports. Appellant concedes hospital reports are generally admissible, but claims those portions of the records containing Carla's statements as to what occurred are inadmissible hearsay. For the same reasons stated above, the records are admissible for nonhearsay purposes. In any event, even if they were admitted in error, there is no prejudice because the physician and Carla both testified at trial. As the trial court noted, there is nothing in the records that was not testified to at trial. III. The Evidence of the Prior Offense Was Properly Admitted. At the close of trial, the court instructed the jury on the proper use of the evidence concerning the 1990 incident involving Cynthia S. It is undisputed appellant was not convicted of a sexual offense in connection with the incident. In her testimony, Cynthia S. explained although rape charges were initially filed, the prosecutor offered a plea bargain to appellant which included an assault offense and not a sexual offense. She testified she concurred with the plea bargain because she did not want the ordeal of testifying. As a result, appellant pleaded guilty to assault with force likely to cause great bodily injury and the rape charge was dismissed with a Harvey6 waiver. The instruction given to the jury in connection with this evidence was a modified version of CALJIC No. 2.50, modified to conform with the recent enactment of Evidence Code section 1108. The court instructed as follows: "Evidence has been introduced for the purpose of showing that the defendant committed sexual crimes other than that for which he is on trial. [] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show that: [] The defendant is a person who may have a disposition to commit crimes of a sexual nature; or that [] The defendant did not reasonably and in good faith believe that the person with whom he engaged in or attempted to engage in a sexual act consented to such conduct; [] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [] You are not permitted to consider such evidence for any other purpose." Evidence Code section 1108, effective on January 1, 1996, provides in relevant part as follows: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Appellant raises several challenges to the admission of the evidence and to the instructions given the jury in connection with it. We start with the basic challenges to the constitutionality of Evidence Code section 1108. A. Evidence Code Section 1108 Is Not Unconstitutional Appellant contends Evidence Code section 1108 violates the due process and equal protection clauses of the federal Constitution and that "it subvert[s] hundreds of years of settled law that a defendant must be convicted on the facts of the alleged crime rather than on his character." Certainly appellant must be tried for the current offense, not the past offense or his propensity to commit certain offenses. (See United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1044; People v. Garceau (1993) 6 Cal.4th 140, 186.) However, admission of the prior crimes evidence does not necessarily lead to the conclusion he was tried on his character. 1)Due process Evidence of prior sex offenses is both relevant and highly probative. If evidence is probative, it is extremely difficult to argue a constitutional ground requiring its exclusion. (Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 7.) As noted by the court in People v. Fitch (1997) 55 Cal.App.4th 172, federal courts have routinely rejected the argument that use of prior crimes evidence to show a defendant's propensity to commit a crime violates due process. (Id. at p. 180 and federal authorities cited therein.) In Fitch, the Third Appellate District reviewed and considered the long history in California of restricting use of prior crimes evidence. Nonetheless, it concluded it was time for a change, a fact which our state Legislature acknowledged in enacting Evidence Code section 1108. In the face of the serious and secret nature of sex crimes and the inevitable credibility battle at trial between a defendant and the victim, the Legislature determined evidence of prior sex offenses committed by the defendant should be admitted to show propensity. (People v. Fitch, supra, at p. 182.) There are certainly dangers in allowing this type of evidence. The prejudicial potential of prior crimes evidence has long been recognized. However, as the court stated in Fitch, and again in People v. Harris (1998) 60 Cal.App.4th 727, Evidence Code section 352 provides an adequate safeguard to guarantee a fair trial. Evidence whose probative value is outweighed by the possible prejudice of the evidence, because it is unduly inflammatory, remote in time, or will consume an undue amount of time, will be excluded under Evidence Code section 352. In addition, the jury will be instructed on the use of the prior crimes evidence as it was in this case. The court will also instruct in order to return a verdict of guilty on the charged offense, the jury must find guilt beyond a reasonable doubt. There is no reduction in the burden of proof on the charged offense and no risk of the jury resting its verdict solely on proof of the prior crime. (People v. Fitch, supra, 55 Cal.App.4th at pp. 182-183.) We agree with Fitch: Due process guaranties are not offended by the provisions of Evidence Code section 1108. 2)Equal protection Appellant contends the statute also violates the equal protection clause because it establishes a different standard for those who are charged with sex offenses as compared to those who are charged with nonsex offenses. We again turn to People v. Fitch which addressed this argument as well. As the court noted, the class created by Evidence Code section 1108 is not based on a constitutional right or principle and, therefore, need only be justified by a rational state interest. The Legislature has identified the interest justifying the use of prior crimes evidence: the secret nature of sex offenses making the proof of these cases difficult and the concern created when the credibility of the victim is routinely pitted against the alleged perpetrator at trial. (People v. Fitch, supra, 55 Cal.App.4th at p. 184.) There is no equal protection violation because a rational state interest supports the class created by the statute. 3)Ex post facto and double jeopardy Appellant also argues the evidence admitted under Evidence Code section 1108 violates the constitutional violation against ex post facto laws and the principle of double jeopardy. At appellant's first trial the prosecutor attempted to introduce the testimony of Cynthia S. regarding the prior offense. The court refused to allow it. Notwithstanding the lack of this evidence, appellant was convicted. The conviction was reversed in April 1995. Evidence Code section 1108 was enacted in 1995 (Stats. 1995, ch. 439,  2) and became effective on January 1, 1996 (Gov. Code,  9600) and thus was applicable at the second trial which commenced after that date. (Evid. Code,  12.) Both the California and federal Constitutions contain ex post facto clauses and they are interpreted similarly. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 295.) Appellant raises his challenge under both, claiming he was "disadvantaged" by the evidence of his prior offense against Cynthia S. Pursuant to the ex post facto clause, "Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 42-43.) A new rule of evidence, which does not increase the burden of proof or deny the accused a defense, may validly operate in a trial of an earlier offense. (Ibid.; DeWoody v. Superior Court (1970) 8 Cal.App.3d 52, 56.) "... Evidence Code section 1108 does not alter the definition of a crime, increase punishment, or eliminate a defense ...." (People v. Fitch, supra, 55 Cal.App.4th at p. 186.) Thus, the prior sex crimes evidence admitted at the second trial did not violate the ex post facto clause. Appellant's double jeopardy argument is also without merit. The guaranties under the double jeopardy clause are three-fold: a defendant may not be prosecuted after an acquittal on the same offense, may not be convicted for the same offense, and may not be punished for the same offense. (Illinois v. Vitale (1980) 447 U.S. 410, 415.) None of these guaranties are applicable to this case. Appellant has cited no case holding double jeopardy applies to trial evidentiary rulings. He does cite People v. Krivda (1971) 5 Cal.3d 357, vacated in California v. Krivda (1972) 409 U.S. 33, a case which prohibits relitigation of issues arising under section 1538.5. Appellant also cites Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 671 which discusses the doctrine of collateral estoppel in criminal cases. Neither Krivda nor Lockwood is helpful to appellant. Although relitigation of issues arising under section 1538.5 may generally not be raised again at trial, the concern is one of preserving limited judicial resources, not principles of double jeopardy. ( 1538.5, subd. (m).) Principles of collateral estoppel only apply when there has been a final determination of the issue in a prior action. (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) It is well established the granting of a motion to suppress does not constitute a final determination on the merits and has no binding effect in another trial involving the same evidence and the same defendant. (See People v. Gephart (1979) 93 Cal.App.3d 989, 997; People v. Torres (1992) 6 Cal.App.4th 1324, 1329; People v. Meredith (1992) 11 Cal.App.4th 1548, 1557; People v. Gallegos (1997) 54 Cal.App.4th 252, 267; People v. Sahagun (1979) 89 Cal.App.3d 1, 16.) Likewise, by analogy, an evidentiary ruling does not constitute a final determination of the issue such that it would bind a later trial court hearing the matter after reversal. The law is clear-decisions concerning the admission of evidence in a trial is within the province of the trial judge. (People v. Jones (1998) 17 Cal.4th 279, 304; People v. Hall (1986) 41 Cal.3d 826, 834.) Each trial judge faces unique evidentiary issues as they unfold with each witness and each exhibit. In this case, a new evidentiary statute had been enacted and thus rules governing the admission of the evidence were different in the second trial. Appellant's argument is without merit. B. Remaining Contentions* Appellant's remaining arguments challenging the admission of the prior offense evidence are easily addressed. First, appellant contends the offense was never proven sufficiently because Cynthia S.'s testimony was simply not believable. Not so. Our review of the record establishes sufficient evidence upon which a reasonable juror could have concluded the offense did occur. Although there were some facts which could arguably be said to cast doubt on Cynthia's version of events (for example, the Pepsi purchase7), the jury was free to assign whatever weight it wished to this evidence and make its own determination as to credibility. A court may not weigh the evidence or make findings of credibility, for these are within the province of the jury. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) Battered women do not always opt to flee from abusive relationships, even when given an opportunity to do so. (People v. Day, supra, 2 Cal.App.4th at pp. 413- 414, 417.) While Cynthia's failure to flee from appellant is a factor in evaluating her credibility, it does not render the testimony inherently unbelievable. For the same reason, Cynthia's testimony that she did not wish to testify at a trial on the rape is not made inherently unbelievable as appellant contends simply because she testified in this trial. Significant time has passed, and she was not the victim in this trial but a percipient witness to a related but not central event. Reasonable minds could conclude these were sufficiently valid reasons for choosing to testify in this case, but wishing not to earlier. The jury was instructed it could not consider the prior crimes evidence unless it first concluded the offense had occurred. We presume the jury followed its instruction. (People v. Danielson (1992) 3 Cal.4th 691, 722; People v. Fauber (1992) 2 Cal.4th 792, 823.) Second, appellant contends the evidence was not properly admitted on the issue of whether he had a reasonable good-faith belief Carla consented because "intent" was not an issue and that the jury was improperly instructed accordingly.8 Appellant correctly states "intent" is not an issue when a defendant admits engaging in the sexual acts, but wrongly characterizes the good-faith belief evidence and instruction as addressing "intent." Appellant raised the issue of whether he had a reasonable good-faith belief he had Carla's consent, both through his own testimony and in the closing argument of defense counsel. The jury was instructed with respect to this defense, at appellant's request. Evidence Code section 1108 expressly allows prior crimes evidence to be considered for all relevant purposes. There was no error. Finally, appellant argues the trial court abused its discretion in failing to find the prior crimes evidence inadmissible under Evidence Code section 352. As stated above, appellant misunderstands the correct standard of prejudice under this section. "The prejudice which ... Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." (People v. Karis (1988) 46 Cal.3d 612, 638; see also People v. Zapien, supra, 4 Cal.4th at p. 958; People v. Yu (1983) 143 Cal.App.3d 358, 377.) It is not enough to say the result would have been different without the damaging evidence. (People v. Hole (1983) 139 Cal.App.3d 431, 436-437.) Appellant has failed to explain how the evidence, unquestionably probative, was prejudicial to him under those factors traditionally recognized under Evidence Code section 352. (See People v. Harris, supra, 60 Cal.App.4th at pp. 737-741.) IV. The Court Erred in Imposing a Greater Sentence on Retrial.* Appellant correctly contends the trial court erred when it imposed a greater sentence on retrial than had been imposed at sentencing on the first trial. At appellant's initial trial he was sentenced to a total aggregate term of 12 years 8 months, midterm full consecutive terms on counts one and two, and one-third the midterm consecutive on count three. At sentencing on the conviction after retrial, the court imposed an aggregate term of 16 years, upper full consecutive terms on counts one and two, and a concurrent full midterm on count three. In addition, the second sentencing included the imposition of a $70 fine pursuant to sections 288a, subdivision (m), and 1463.23. Under the double jeopardy clause of the California Constitution, a defendant may not be sentenced to a greater term after a successful challenge on appeal to an earlier conviction. (People v. Henderson (1963) 60 Cal.2d 482, reaffirmed by the Supreme Court in People v. Monge (1997) 16 Cal.4th 826, 843; see also People v. Thompson (1998) 61 Cal.App.4th 1269, 1275; People v. Jones (1994) 24 Cal.App.4th 1780, 1783.) The rule is designed to avoid penalizing a defendant for pursuing a successful appeal. (People v. Brown (1987) 193 Cal.App.3d 957, 961.) This court has held the rule applies equally to the imposition of increased monetary penalties. (People v. Jones, supra, at p. 1783.) Both the aggregate term and the imposition of the fine exceed the punishment imposed in the first trial. This is impermissible under the relevant authority. Respondent concedes this is so. When a trial court resentences a defendant after reversal on appeal, the previous sentence has been vacated and the trial court on resentencing has the discretion to increase or decrease the elements of the sentence, so long as the prior aggregate term is not exceeded. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1769-1770; People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556-1558.) Because it is the sentencing court and not the appellate court which must make and justify its sentencing choices (People v. Scott (1994) 9 Cal.4th 331, 355), remand is needed in this case. There is no way to reduce the sentence below the 12 year 8 month lid without making new sentencing choices. Because remand is required, we do not address appellant's final contention, which is that trial counsel was ineffective because he failed to argue against full consecutive terms at sentencing. Appellant will have now have his opportunity to do so on remand. DISPOSITION The judgment of conviction is affirmed. The matter is remanded for resentencing. ____________________________ Thaxter, J. WE CONCUR: _______________________________ Dibiaso, Acting P.J. _______________________________ Buckley, J. *Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I.-II., III.B., and IV. 1All further references are to the Penal Code unless otherwise noted. 2Pursuant to appellant's request we take judicial notice of the record in the previous case (No. F020282) for the purpose of verifying the case's procedural history. *See footnote, ante, page 1. 3Appellant surmised Carla fabricated her charge against him because he "burned" her for $80 he claimed she gave him to buy drugs. Defense counsel suggested it was because she lied to her mother to cover her activities the night before and felt obligated to stick to her story. *See footnote, ante, page 1. 4People v. Brown has been cited by several authorities in other states which have adopted Brown's approach to allowing evidence of a victim's complaint in sexual offenses. (See State v. Troupe (1996) 237 Conn. 284, 299 [677 A.2d 917, 926]; State v. Livingston (Tenn. 1995) 907 S.W.2d 392, 395.) According to Troupe, 44 states plus the District of Columbia have allowed evidence of a victim's complaint in sex offense cases. (State v. Troupe, supra, at p. 299 [at p. 926] fn. 14.) 5Dr. Miller testified Carla told him "her rectum was penetrated by his penis, that she had oral copulation with his genitals. And that she was made to masturbate him." Paula Jenkins testified Carla told her "she had been raped and kidnapped the night before and held prisoner in somebody's home." Lavona Dill testified Carla told her, "I was kidnapped last night," and when Mrs. Dill asked if Carla had been raped, Carla answered "yes." Deputy Unruh testified Carla told him she had been "raped by [appellant]." Detective Silva testified she reported she had been "sodomized and forced to orally copulate." In addition, all of these witnesses testified as to Carla's demeanor when she reported and to the time and circumstances of the report. 6People v. Harvey (1979) 25 Cal.3d 754. *See footnote, ante, page 1. 7Cynthia admitted the morning after the rape and initial assault she awoke first, left the motel room to buy a Pepsi, and then returned to find appellant sleeping. She woke him and a second violent episode ensued. She also testified she was afraid of appellant, had been in a relationship with him which included several violent episodes and, as a result, knew if she left he would find her and retaliate. 8The instruction told the jury it could consider the prior crimes evidence on the issue of whether appellant had a reasonable good-faith belief Carla had consented to the sex acts, in addition to the issue of propensity. *See footnote, ante, page 1.