P. v. Gonzalez

Filed 2/19/08 P. v. Gonzalez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Cesar O. A. Gonzalez appeals his conviction by jury of forcible rape (Pen. Code, 261, subd. (a)(2)),^[1]kidnapping to commit rape ( 209, subd. (b)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), assault with intent to commit rape ( 261, subd. (a)(2)) and false imprisonment by violence ( 236). The jury found true allegations that appellant kidnapped the victim and the movement substantially increased the risk of harm ( 667.61, subds. (a) & (d)), and that appellant personally used a dangerous and deadly weapon ( 667.61, subd. (b), 12022.3, subd. (a) & 12022, subd. (b)(1)).

The trial court sentenced appellant to 25 years to life in state prison for the rape, and stayed midterm sentences of 7, 3, 4, and 2 years, respectively, for the kidnapping, assault with a deadly weapon, assault with intent to commit rape and false imprisonment. ( 654.) The court ordered appellant to pay $550 for the cost of a medical examination. ( 1203.1h.)

Appellant contends that erroneous admission of evidence of a subsequent sex offense, opinion testimony by a nurse and prosecutorial misconduct all combined to undermine the fairness of his trial with respect to the rape charge. He contends that he was prejudiced because the victim gave conflicting testimony about sexual penetration and the prosecution would have had difficulty proving rape in the absence of the cumulative errors. He also challenges the imposition of costs of the medical examination because there was no finding of ability to pay. We strike the order imposing costs of the medical examination and otherwise affirm.

FACTS

In June of 1998, Jane A. was hiking in a public park. Appellant came up behind Jane and held a knife to her neck. He pushed Jane off the trail, down a slope and into bushes. He covered his face with a bandana. He told Jane to remove her clothes and she pulled down her sweat pants. Appellant exposed his erect penis, and positioned himself between Jane's legs. Using his hand, he held his penis up to her vagina and then suddenly pulled up and ejaculated onto her pubic region. After he left, Jane ran toward the parking lot, found a couple and told them she had been raped.

Sperm matching appellant's DNA was found on Jane's pubic hair. No sperm was found inside her vagina.

Immediately after the crime occurred, Jane told a sheriff's deputy that appellant's penis had not penetrated her vagina. The deputy reported the crime as attempted rape. At trial, Jane explained that she had thought penetration required the penis to go "inside the [vaginal] opening." Jane testified at trial that appellant's penis penetrated her external and internal labia and that it touched, but did not enter, her vaginal opening.

On the day of the attack, Jane was interviewed by a sheriff's deputy at the station. Jane told the detective that appellant placed his erect penis against her pubic area and then "pulled out." She said his penis was going up and down and he ejaculated in her pubic area. The detective did not clarify whether it was going up and down between the labia or inside the vagina, and her questions did not distinguish between the labia and vaginal opening. The interview was recorded.

From the station, Jane was taken to a hospital for a medical examination. In a recorded interview, Jane told the examining nurse (the nurse), that she had not been "penetrated." She demonstrated with her fingers that the penis penetrated the external and internal labia and did not enter the vaginal opening, or "vault."

Two days after the medical examination, Jane was interviewed again by the police detective. This time the detective explained that if the penis crosses the vaginal lips, the crime is rape. Jane said that appellant's penis had penetrated the lips of her vagina. This interview was also recorded.

Over appellant's objection, the nurse was permitted to testify that, in her opinion, Jane had been penetrated by appellant's penis. She said that Jane had been penetrated "legally." The nurse based her opinion on her knowledge and training regarding the law of sexual assault and the description Jane provided during her medical examination. The nurse testified that she has been a registered nurse for 16 years and that she has a bachelor's degree in nursing and has a master's degree in forensic nursing. She is a certified sexual assault nurse examiner and certified forensic nurse. She has performed over 300 sexual assault examinations.

Also over appellant's objection, the prosecution presented testimony of a subsequent victim of rape by appellant to prove propensity and common scheme or plan. (Evid. Code, 1101, subds. (a) & (b); 1108.) The court found that the two crimes were "very similar."

Carla H. testified that in June of 2001 she was jogging in a public park in North Carolina when appellant came out from behind a tree with a gun. His face was hidden by a ski mask. He pushed Carla off the path into the woods and struck the back of her head. He ordered Carla to remove her pants and she pulled down her shorts. He positioned himself between her legs. Holding his penis in his hand, he penetrated her external and internal labia, but his penis was flaccid and he did not enter the vaginal vault. She did not know whether he ejaculated. When appellant left, Carla ran the other way. She found a family and reported that she had been raped. Carla told the police that she had not been penetrated because the penis did not go all the way into her vagina. Sperm left on Carla's shorts matched both appellant's DNA and the sperm left on Jane's pubic hair.

A forensic scientist from the sheriff's department described the DNA evidence, its analysis and the test results. She testified that the defense counsel did not request a split or retest of the DNA evidence.

In closing argument, the prosecutor made the following remarks about defense counsel: "It was really insulting for this defense attorney to get up here and try to put the victim . . . on trial, that is offensive." He "had the audacity to tell you that Jane . . . was the type of person who was out to seek revenge against this defendant." "How dare he imply that he is in a better position [than the nurse] to know what happened [in her interview of Jane]?" Defense counsel "completely misled you when it came to [the] personal use of the knife. Defense counsel's arguments were "red herrings . . . that the defense threw up hoping that just one of you [would] bite on anything."

DISCUSSION

Evidence of the Subsequent Rape

Appellant concedes that the evidence of Carla's rape was presumptively admissible to prove propensity to commit rape pursuant to Evidence Code section 1108. He contends that the trial court should have excluded the evidence as unduly prejudicial under Evidence Code section 352. He contends that the evidence was not probative to any material issue in dispute. We disagree.

Evidence Code section 352 authorizes the court to exclude evidence when "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." An appellate court will not disturb a trial court's exercise of its discretion under Evidence Code section 352 "in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)

Appellant contends that the only issue in dispute at trial was penetration. His counsel emphasized that issue in his opening statement, but there was no stipulation relieving the prosecution of its burden to prove every element of the charged offenses. The jury was instructed accordingly. The evidence of Carla's rape was relevant to prove propensity, identity, motive and intent.

The trial court acted within its discretion when it determined that the probative value of the evidence outweighed the risk of undue prejudice. As the trial court observed, the alleged crime against Carla was no more emotional or violent than the charged crime, and was no more likely to evoke an emotional response. There was no abuse of discretion.

Testimony of Nurse Regarding Penetration

We also reject appellant's contention that sexual penetration was not a proper subject for expert testimony, and that the nurse was not qualified to render the opinion that appellant had sexually penetrated Jane.

We review the trial court's decision to admit the testimony of an expert for abuse of discretion and find none. (People v. Prince (2007) 40 Cal.4th 1179, 1222.) The anatomy of female genitalia related to sexual penetration is a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801, subd. (a).) The jury was required to determine whether appellant sexually penetrated Jane. They were instructed that "[t]he penetration which is required is sexual penetration not vaginal penetration. Sexual penetration is defined as the penetration of the genital opening, it may also include contact with the victim's hymen, clitoris, and the other genitalia inside the exterior of the labia majora." The trial court reasonably concluded that expert testimony would assist the jury on this subject. The nurse's testimony established that she had special knowledge, skill, experience and training on the subject. To the extent she gave a legal opinion it was consistent with the law and with the court's instruction. Any sexual penetration, however slight, is sufficient to complete the crime of rape. ( 263.) "Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina." (People v. Karsai (1982) 131 Cal.App.3d 224, 232, overruled on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600.)

Prosecutorial Misconduct

Appellant contends that the prosecutor committed misconduct when he (1) elicited testimony that defense counsel had not independently tested the DNA evidence and when he (2) criticized defense counsel during closing argument. We disagree.

A prosecutor's conduct violates the federal Constitution if it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v Carter (2005) 36 Cal.4th 1215, 1263.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970.)

We infer no misconduct from the prosecutor's questions concerning a retest of DNA or the prosecutor's closing argument in this case. The fact that defense counsel had not requested a re-test or split of the DNA was relevant to prove that there was no conflicting DNA evidence. The prosecutor's references to defense counsel were legitimate responses to arguments made in his closing argument. "It is not misconduct for a prosecutor to argue that the defense is attempting to confuse the jury." (People v. Kennedy (2005) 36 Cal.4th 595, 626.) Her conduct did not rise to the level of a deceptive or reprehensible attempt to improperly influence a jury.

Counsel did not simultaneously object to the claimed misconduct, and did not request that the jury be admonished. (People v. Sapp (2003) 31 Cal.4th 240, 279.) We perceive no ineffective assistance of counsel because any objections would have been without merit. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)

Imposition of Cost of Medical Examination

The order imposing victim restitution in the amount of $550 for cost of a medical examination pursuant to section 1203.1h must be stricken, as respondent concedes. The trial court did not make a finding of ability to pay. (People v. Wardlow (1991) 227 Cal.App.3d 360, 371-372.) The trial court found appellant was unable to reimburse the expenses of the probation department or court-appointed counsel.

The order requiring appellant to pay $550 for costs of a medical examination is stricken. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Rebecca S. Riley, Judge

Superior Court County of Los Angeles

______________________________

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal code unless otherwise stated.