P. v. Villanueva















Filed 1/28/13 P. v. Villanueva CA2/7

>

>

>

>

>

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. SANDRO CALDERON VILLANUEVA, Defendant and Appellant.

B234063 (Los Angeles County Super. Ct. No. BA220075)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Bob S. Bowers Jr., Judge. Affirmed.

Richard
D. Miggins, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel
Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.



_______________



Sandro
Calderon Villanueva (appellant) was convicted by a jury of href="http://www.fearnotlaw.com/">attempted murder (Pen. Code, § 664/187,
subd. (a)),href="#_ftn1" name="_ftnref1"
title="">[1]
forcible rape (§ 261, subd. (a)(2)), attempted forcible rape (§§ 664/261),
torture (§ 206) and two counts of sexual penetration by a foreign object (§
289, subd. (A)(1)(a)). The jury also
found that he personally kidnapped and tortured the victim and inflicted great
bodily injury and
personally used a dangerous or deadly weapon as to the rape, and the two counts
of sexual penetration (§ 667.61). In a
separate phase of the trial, the jury found appellant to be sane at the time of
the commission of the offenses. He was
sentenced to a term of life plus 32 years to life in state prison. He appeals, raising the following
contentions: there was insufficient evidence to support the two counts of
penetration with a foreign object; his constitutional right to confrontation
was violated by the admission of evidence regarding DNA testing; his constitutional
right to present an insanity defense was violated when the trial court limited
the testimony of one of his witnesses; his constitutional href="http://www.fearnotlaw.com/">right to a fair trial was violated when
the court instructed the jury with CALJIC No. 1.12; there was insufficient
evidence to support the conviction of attempted rape; and he was deprived of
his constitutional right to effective trial counsel when his counsel failed to
object to erroneous jury instructions, failed to elicit critical evidence in
support of his insanity defense and failed to object to the DNA testimony.

FACTUAL & PROCEDURAL
BACKGROUND

On July 18, 2001, Pedro Hernandez, the
manager of an apartment building on Witmer Street
in Los Angeles, called police after
he discovered appellant lying on top of a woman on the floor of the laundry
room. Hernandez recognized appellant as
a tenant in the building. Hernandez’s
penis was inside the woman, and there was blood on her body and the floor and
walls. Appellant told Hernandez, “Two
gangbangers had beat the shit out of her.”
Hernandez called the police.

Los Angeles
Police Officer Fernando Prieto arrived on the scene and saw appellant with
fresh blood on his hands and face.
Appellant said nothing and was taken into custody. Hernandez took Officer Prieto into the
laundry room where they found Ruth L. with blood around her head and
genitals. There was a broken stick with
blood on it lying nearby.

Ruth L. was
transported to the hospital where she was examined by Nurse Julie Lister. She had trauma on her face and neck with
extensive bruising and swelling. She had
six lacerations and two large hematomas around the genital area. Detectives interviewed Ruth and determined
that she was living in the neighborhood of 3rd and Witmer and went into a
nearby liquor store that day. As she
exited the store, appellant approached her, putting something in her back which
felt like a gun. He told her to walk
about a block and a half away to an apartment building, where he took her
downstairs to the laundry room.

The trial
did not commence until ten years after the incident.

Ruth L. was
deceased by the time of trial but the cause of death was not related to this
attack. The jury was informed she was
unavailable, and her preliminary hearing testimony was read at trial.

Detective
Moses Castillo testified he came into contact with appellant shortly after the
incident. Based on his training and
experience he did not feel appellant was under the influence of any intoxicating
or controlled substance.

Another
detective found a used condom behind a washing machine and a condom wrapper
inside the drum of the washing machine.

Charlotte
Word, a former laboratory director of Cellmark, testified that Wendy Magee, an
analyst at Orchid, examined four items: (1) a swatch of underwear, (2) a swab
labeled “inside condom,” (3) a swab labeled “outside condom” and (4) a swab of
red stain. Word reviewed Magee’s
analysis and they co-wrote a report.
Word knew Magee and was familiar with her qualifications, and also
reached her own independent conclusions with respect to the evidence. Word
testified that the sperm recovered from the “outside condom” sample matched
appellant’s DNA profile. The sperm
recovered from the underwear had a mixture of DNA from three or more
individuals, but the primary DNA profile matched appellant’s. The inside condom sample contained DNA which
matched the profile for Ruth as well as DNA from a male and three other sources.

Appellant
called only one defense witness, Detective Castillo, who testified the laundry
room in the apartment complex was available to all the tenants.

Appellant
pled not guilty and not guilty by reason of insanity. After the verdicts were reached, a separate
sanity phase was held.

Nestor
Villatoro testified on behalf of the defense.
He was a laborer originally from Guatemala and explained that in the
1980s and 1990s there was a war in Guatemala.


Mariana
Francis Xuncax also testified on behalf of the defense. She was an elementary school teacher and
public health nurse in Guatemala from 1982 to 1990 but had lived in Los Angeles
for the past 20 years. She testified
that when she was working in Guatemala, she treated many refugees fleeing death
squads. She had never interacted in any
way with appellant.

The defense
also called Doctor Claudia Degrati, a clinical psychologist, who had met with
appellant twice for a total of six hours.
She also met with Xuncax. She
reviewed materials concerning Guatemalan history, the police reports and
psychological and psychiatric reports about appellant. She opined that appellant was in the range
between mild mentally retarded to borderline cognitive functioning. He recently had lost his mother and was not
comfortable living with his father. He
told her that when he lived in Guatemala, he was forced to walk past dead
bodies by the side of the road and saw vultures picking at corpses. His description of events was consistent with
what she had read about the history of Guatemala. Appellant told her that he had witnessed
lynchings where people were dragged by cars and burned alive and that one of
his friends was about to be lynched for stealing a car. Dr. Degrati found appellant to be profoundly
traumatized and in her opinion that he met the criteria for post-traumatic
stress disorder (PTSD). She opined
appellant’s crimes were attributable to post-traumatic stress, and he was
reenacting what he saw On cross-examination
she admitted that she did not administer any tests to determine if appellant
was malingering. She also admitted he
lied to her when he told her that he had smoked rock cocaine and other drugs
before committing the crimes against Ruth.
He told her he had seen Ruth L. prior to the incident “prostituting
herself with other men.” He then told
her that he had consensual intercourse with Ruth, and paid her $40, before
things “got out of hand.” Degrati also
knew appellant told police officers he attacked Ruth because he was angry that
he was going to be kicked out of the 18th Street gang.

Hernandez,
the apartment complex manager, testified on behalf of the prosecution. Appellant once showed him his 18th Street
gang tattoo and told him, “Now, you will have to respect me because I’m in the
gang.”

The
prosecution also called Dr. Kaushal Sharma.
Dr. Sharma was appointed by the court to render an opinion as to
appellant’s sanity. He met with
appellant for approximately 80 minutes.
Appellant was defensive, answered many questions with “I don’t know,”
and terminated the interview.

Dr. Sharma
was familiar with PTSD. The documents
which indicated appellant might have experienced traumatic events as a child
did not necessarily mean he suffered from PTSD.
Dr. Sharma did not believe appellant suffered from PTSD or any mental
illness. Appellant seemed to be proud of
his gang membership and said he could not recall the incident. He said at the time he committed the crime he
was abusing alcohol and drugs but according to toxicological reports there were
no drugs in his system. Dr. Sharma
thought it was significant that appellant attempted to hide the condom he used
during the rape. He concluded that
appellant knew what he was doing at the time and his attempt to hide evidence
showed knowledge of his actions and consequences. He opined that appellant was legally sane at
the time he committed the crimes.

The jury
found appellant was sane at the time he committed the offenses.

DISCUSSION

1. Sexual Penetration Counts

Appellant
contends that the evidence did not establish multiple penetrations of Ruth L.’s
vagina, and therefore that either count 5 or count 6 must be reversed.

Section
289, subdivision (k)(1) provides that: “‘Sexual penetration’ is the act of
causing the penetration, however slight, of the genital or anal opening . . .
by any foreign object, substance, instrument, or device, or by any unknown
object.”

In >People v. Harrison (1989) 48 Cal.3d 321,
the Supreme Court held that the offense of section 289 is complete “the moment
‘penetration’ occurs.” (>Id. at p. 328.) As a result, in that case, each separate and
distinct digital penetration of the victim was found to be a separate violation
of section 289, subdivision (a).

Appellant
contends that the testimony of Ruth only establishes that appellant thrust the
stick in her two times, not that there were two penetrations of her
vagina. This contention is
meritless. The testimony of Ruth was as
follows: “[The Prosecutor]: Okay,
Now how many times, Ruth, did [appellant] shove this stick into your
vagina? [¶] A: As far
as I can remember, I think twice, twice or three times he did. [¶]
Q: Two or three times? [¶]
A: Yes. [¶] Q:
When he shoved, is that three, two, or three separate times? [¶]
A: Yes.” Julie Lister, the nurse who examined Ruth L.,
testified that Ruth’s only statement to her was: “He stuck a stick in me.” But Lister also testified that Ruth had
“about 6 lacerations around the genital area and two rather large
hematomas.”

The
testimony of Ruth L. and Lister was sufficient evidence to establish two
separate counts of sexual penetration.

2. Charlotte Word’s testimony

Charlotte
Word testified that she formerly worked at Cellmark for 15 years and was a
molecular geneticist, and then as a laboratory director. She had a Ph.D in Microbiology and joined
Cellmark in 1990. She described the four
basic steps of DNA testing, which she said were the same at every DNA
laboratory. She testified about the
procedures in place in the laboratory regarding cleanliness and keeping the
samples free from contamination. The
process involves actual handling of the sample – putting it in a test tube,
cutting from the sample, putting it into a tube, sealing the tube, examination
of a microscopic slide – as well as the generation of electronic data and the
analysis of test results. At Cellmark,
the laboratory analyst who performs the work writes a draft report and reaches
conclusions. The analyst documents all
the steps of the work and records any results or findings. A second individual, perhaps a laboratory
director, reviews those data and work, and comes to an independent
conclusion. The second person reviews
the draft report, and if that person agrees with those conclusions, co-signs
the report, stating that opinions and findings come from two individuals.

At trial,
Word had a copy of the original file with the documents that reflect the raw
data but the report was not admitted into evidence. She testified she had reviewed the file with
the DNA samples from this case and reached her own independent conclusions. Wendy Magee was the original analyst that
co-wrote the report in this case. Word
knew Magee, and was familiar with her, and co-signed her report. Word reviewed the work and had reached her
own independent conclusion. She said she
was not aware of any problems with any of the protocols used in terms of
contamination, “Everything looked to me had been done appropriately, correctly.
. . .”

Appellant
contends that the admission of Word’s testimony was error because she did not
perform the tests, Magee did. He argues
that Magee’s unavailability was never established and she was not made
available for cross-examination, as required under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

In >Crawford, the U.S. Supreme Court held
that generally the prosecution may not rely on “testimonial” out-of-court
statements unless the witness is unavailable to testify and the defendant had a
prior opportunity for cross-examination.
(541 U.S. at p. 59.)

The
prosecutor filed a memorandum of points and authorities regarding Word’s
anticipated testimony on January 7, 2011, prior to jury voir dire. The trial court indicated that the testimony
of Word would be permitted.

Appellant
did not object at trial when Word was called to the stand. The People contend that appellant forfeited
his right to raise this issue on appeal.
As we explain, even if the claim had been raised, it would have been
futile. (People v. Redd (2010) 48 Cal.4th 691, 730; People v. Chaney (2007) 148 Cal.App.4th 772, 777-780.)

The trial
court allowed Word to testify citing People
v. Geier (2007) 41 Cal.4th 555. In >Geier, a laboratory director testified
at trial about a report prepared by an analyst.
The analyst’s notes were generated as part of a standardized scientific
procedure conducted pursuant to laboratory guidelines. The California Supreme Court held that a
statement about scientific evidence was not testimonial unless “(1) it is made
to a law enforcement officer or by or to a law enforcement agent and (2)
describes a past fact related to criminal activity for (3) possible use at a
later trial.” (Id. at p. 605.) The court
found that the report was not testimonial because it was a “contemporaneous
recordation of observable events rather than the documentation of past
event.” (Ibid.)

After the
trial took place in this case, the California Supreme Court issued three
companion opinions involving Crawford
issues: People v. Lopez (2012) 55
Cal.4th 569, People v. Rutterschmidt
(2012) 55 Cal.4th 650 and People v. Dungo
(2012) 55 Cal.4th 608.

Each of
those cases reviewed three U.S. Supreme Court cases which discussed whether
evidence of laboratory results implicated the href="http://www.mcmillanlaw.com/">Sixth Amendment and Crawford: Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305; Bullcoming
v. New Mexico (2011) 564 U.S. ___ 131
S.Ct. 2705, 180 L.Ed.2d 610 and Williams
v. Illinois (2012) 567 U.S. ___, 132 S.Ct. 2221.

In >Melendez-Diaz, supra, 557 U.S. 305,
state laboratory analysts’ certificates were sworn to before a notary public. There was no live testimony by the
analysts. The Supreme Court held the
certificates were affidavits and were thus testimonial statements. (Id.
at pp. 329-330.)

In >Bullcoming, supra, 564 U.S. ___, a defendant was convicted of driving while
intoxicated, based on evidence from a forensic laboratory of his blood-alcohol
concentration. An analyst who was
familiar with the laboratory’s testing procedures but who had not performed or
observed the tests, testified at trial.
The report was held to be testimonial and could not be admitted through
the “surrogate testimony” of an analyst who did not perform or observe the
tests or even sign the certification of the tests. (564 U.S. at p. ___, 131 S.Ct at p. 2717.)

In >Williams v. Illinois, supra, 577 U.S.
___, a defendant was on trial for rape and a DNA sample was tested by
Cellmark. No one from Cellmark
testified, nor was the laboratory report introduced into evidence, but a police
forensic biologist testified as to the results.
Four justices concluded that the information in the Cellmark DNA report
was not testimonial because it was not offered for its truth, but as a basis
for expert testimony, and even if the report had been introduced for its truth,
it was not testimonial because it was not an affidavit made for the primary
purpose of proving the guilt of a particular defendant. The plurality opinion of four justices found
that the expert’s testimony did not violate the Sixth Amendment because the
expert testimony was not admitted for its truth but only to explain the basis
of the witness’ independent conclusion, and because the report was not prepared
for the primary purpose of a criminal
prosecution since at the time the defendant was not yet a suspect. (Id.
at p. ___. )

With these
cases in mind, the California Supreme Court determined the applicability of >Crawford in the three companion
cases. In Lopez, a laboratory assistant made a chain of custody log sheet
showing the results of blood tests. The
other part of the report was data generated by a machine to measure alcohol in
a blood sample. The analyst initialed the pages of the report but made no
statement. (People v. Lopez, supra, 55 Cal.4th at p. 583.) The first component in determining whether an
out-of-court statement is testimonial is that it be made with some degree of
formality or solemnity. The second
component is that the statement’s primary purpose pertains to a criminal
prosecution. (Id. at pp. 581-582.)
Examining the two separate components of the report, the court concluded
that the chain of custody log sheet was admissible because it did not meet the
requisite amount of formality to constitute a testimonial statement. The second part of the report,
machine-generated data, also did not implicate the Sixth Amendment. (Id.
at pp. 583-584.) The court held that the
report was not testimonial in nature. (>Id. at p. 585.)

In >Rutterschmidt, supra, 55 Cal.4th 650,
the laboratory director of the county coroner’s department testified at trial. Four laboratory analysts working under his
supervision had tested the victim’s blood.
The four analysts gave the data generated by their equipment to the
clerical staff, who then prepared a report containing the test results. The report was “peer reviewed” and the data
entered into a computer which generated a final report. The laboratory director reviewed the report
to correct errors and check that proper procedures had been followed and then
he signed the report. (>Id. at pp. 655-656.) The victim’s blood was tested again a year
later and the laboratory director reviewed the second report. (Id.
at p. 656.) The director testified that
based on the reports, he concluded that the victim’s blood contained alcohol
and sedatives. (Id. at p. 659.) None of the
analysts testified and the laboratory reports were not introduced into
evidence. (Id. at p. 659.) The issue of
whether the laboratory director’s testimony was testimonial was not reached
because overwhelming evidence supported defendant’s guilt. (Id.
at p. 661.)

In >Dungo, supra, 55 Cal.4th 608 a
pathologist examined the victim’s body and prepared an autopsy report. Another pathologist who reviewed the autopsy
report and accompanying photographs testified at trial and opined that the
victim had died of strangulation. (>Id. at p. 612.) The autopsy report was not introduced into
evidence and the examining pathologist did not testify. (Id.
at pp. 612-613.) The court held that the
autopsy report was not testimonial because criminal investigation was not the
primary purpose for the condition of the victim’s body. It was “an official explanation of an unusual
death.” (Id. at p. 621.) The
testifying pathologist’s description of the objective facts contained in the
autopsy reports did not give the defendant a right to confront and
cross-examine the pathologist who performed the autopsy. The Court found no violation of the right to
confrontation. (Ibid.)

Here, Word
reviewed Magee’s work and reviewed the laboratory test results used by Magee
and reached the same conclusion as Magee.
Word’s testimony was based on her own independent review of the test
results. She was able to testify as to
the procedures in place at Cellmark and opine as to their trustworthiness. She was able to testify to the means by which
the instrument-generated data was produced and interpreted that data, and give
her own independent opinion of the DNA results.


Unlike >Dungo and Rutterschmidt, in this case, Word herself personally examined the
lab results and came to her own independent conclusion regarding the DNA
evidence. She did not just review for
procedural errors as in Rutterschmidt. Unlike the testifying pathologist in >Dungo, Word reviewed the data
contemporaneously with the other laboratory analyst and testified as to her own
observations and conclusions of the data as the samples were examined. The report was not admitted into evidence but
only served as the basis for Word’s opinion.
It was therefore unnecessary to determine if the report was testimonial
in nature. Word’s opinion was based on
personal knowledge of the procedures followed and the raw data, and she made
her observations and conclusions at or about the time the evidence was
gathered. She was familiar with the
procedures followed in the laboratory.
The defense had an opportunity to, and did, cross-examine and confront
her. No Sixth Amendment violation
occurred.

3. Mariana Xuncax’s testimony

During the
sanity phase, defense counsel sought to introduce testimony by Xuncax about the
trauma appellant suffered while in Guatemala and how it affected his mental
state. The defense argued that Xuncax
was a graduate nurse who worked as an instructor and outreach public health
worker in Guatemala. Counsel stated that
her specialty was dealing with people from Northwestern Guatemala and as a
trained nurse, her observations of how the widespread atrocities that occurred
during war affected the population at that time and how the effects are
ongoing. Defense counsel made the
following statements about her testimony:
“It is my intention to use her to describe the residual effects of the
war in Guetemala [sic] on the people she sees and interacts with which will be
consistent with . . . Doctor De Grati’s opinion of sanity. [¶]
Otherwise, Doctor De Grati’s opinion has no factual support. So she’s just a live witness for some of
Doctor De Grati’s predicates. She’s not
here to draw any opinions.”

The court
acknowledged that appellant came from a country which had been at war where
civilians have suffered psychological
damage. It then asked if appellant
had exhibited post-traumatic stress symptoms to Xuncax. Appellant’s counsel indicated that Xuncax had
never seen appellant.

The court
ruled, after further discussion: “The nurse will be permitted to testify as to
the civil conditions of the country while she has been a mental health
specialist. She will not be permitted to
testify regarding any issues concerning what the court keeps saying as post traumatic
stress syndrome issues. The bottom line
is what she will do is basically backup or validate statements that may have
been made by your client to Doctor De Grati in this matter. And beyond that, that’s all I’m saying at
this point. . . . The court does not
find a sufficient nexus since this nurse has never personally spoken to or
interviewed your client. I find her
opinions or what she might say with respect to this matter to be anecdotal in
nature and not applicable to this incident.
That’s the court’s ruling right now.
It’s subject to renegotiation.”

Appellant
renewed his argument in a motion for a new trial. The court denied the motion on the same
grounds.

Appellant
contends the trial court erroneously limited Xuncax’s testimony because it had
already designated her as an expert witness.
He argues that this violated his state and federal constitutional rights
by barring him from making an effective presentation of an insanity defense. He also claims that his counsel was prevented
from laying a complete foundation for the testimony of Dr. Degrati by not
allowing Xuncax to testify as to the full extent of the atrocities which took
place in Guatemala.

Evidence
Code section 801 defines expert testimony
as “(a) Related to a subject that is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact; and (b) Based on
matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him
at or before the hearing. . . that is of a type that reasonably may be relied
upon by an expert in forming an opinion upon the subject to which his testimony
relates. . .” Evidence Code section 720
provides that a person is qualified to testify as an expert witness “if he has
special knowledge, skill, experience, training or education sufficient to
qualify him as an expert on the subject
to which his testimony relates.”
(Italics added.)

The question
of whether an expert witness is qualified to testify and whether a foundation
has been laid for his or her testimony rests in the sound discretion of the
trial court and its ruling will be reversed on appeal only if there is abuse of
discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)

Appellant’s
conclusion that the court designated Xuncax as an expert is based on a single
statement in which he asked all “expert witnesses to leave the courtroom.” It is clear that Xuncax’s qualifications were
considered and ruled upon in the sanity phase and she was only considered as an
expert on certain grounds.

Xuncax
could not have given a qualified opinion as to the effect of the Guatemalan war
on appellant’s mental state during the commission of the crimes since she had
never met appellant. She was, however,
allowed to testify about the war in Guatemala.
Dr. Degrati, who had seen appellant, was allowed to testify as to its
effects on appellant’s mental state. We
find no abuse of discretion in the trial court’s ruling and no violation of
appellant’s constitutional rights. (>Ramos, supra, 15 Cal.4th at pp.
1175-1176; Korsak v. Atlas (1992) 2
Cal.App.4th 1516, 1526.)

4. Jury Instructions

The court
instructed the jury with CALJIC No. 1.12 as follows: “In this proceeding the
alleged victim has been identified as Ruth L.
This has been done only for the purpose of protecting her privacy
pursuant to California law. The fact that
the alleged victim has been so identified is not evidence, and should not be
considered by you for any purpose in this trial.”

Appellant
contends that this instruction was prejudicial error since Ruth L. was dead at
the time of trial and had no privacy right which required protection.

Section
293.5 provides that the court may identify the alleged victim of a sex offense
by Jane Doe or John Doe if the alleged victim requests it and if the court
finds that the order is reasonably necessary to protect the privacy of the
person and will not unduly prejudice the prosecution of the defense.

Appellant
did not object to the instruction, and thus has forfeited his claim on appeal,
but we conclude that in any event, there was no error in giving this
instruction. (People v. Moore (2011) 51 Cal.4th 1104, 1134.)

It was
undisputed that a sexual assault had occurred and Ruth L. was alive at the time
of the preliminary hearing. Moreover, no
improper inferences could be drawn simply from the reference to Ruth L. by her
first name, and the jury was instructed not to make any conclusions about the
court’s opinion based upon this reference.
There was no error in giving the instruction. (People
v. Ramirez (1997) 55 Cal.App.4th 47, 57-59.)

5. Sufficiency of evidence to support attempted
rape conviction

Section 261
provides in pertinent part that rape is “an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator . . . Where it is
accomplished against a person’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on the person or
another.”

Section 263
provides that “[t]he essential guilt of rape consists in the outrage to the
person and feelings of the victim of the rape.
Any sexual penetration, however slight, is sufficient to complete the
crime.”

Ruth L.’s
testimony at the preliminary hearing
indicated that appellant pushed a stick into her two or three times, then he
attempted to put his penis in her. She
testified that before he put the stick in he tried twice to put his penis
inside her vagina, and tried to force it in and she fought him off, the first
time “a part of it” went in and the second time, “a little” went in, showing
the tip of her finger. He then hit her,
and that she felt the stick going in. On
cross-examination, she testified that appellant was unable to insert his penis
into her vagina on the second attempt because she successfully fought him off.

Hernandez,
the apartment manager, testified that when he saw appellant lying on top of
Ruth L., appellant’s penis was inside her.

This
testimony was sufficient evidence of an attempted rape. (People
v. Rundle (2008) 43 Cal. 4th 76, 151, disapproved on another point in >People v. Doolin (2009) 45 Cal.4th 390,
416, 421, fn. 22.)

6. Ineffective assistance of counsel

Appellant
contends that he was denied the right to
effective assistance of counsel as a result of his trial counsel’s failure
to object to CALJIC No. 1.12 and the testimony of Word, and his failure to elicit
critical evidence from Xuncax about her expertise.

In order to
successfully claim ineffective assistance of counsel, a defendant must
establish that counsel’s performance fell below an objective standard of
reasonableness and that, there is a reasonable probability, the defendant would
have obtained a more favorable result absent counsel’s alleged
shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 687>; People v. Dennis (1998) 17 Cal.4th
468, 540-545.) Counsel is not
ineffective for failing to make a futile or unmeritorious objection or request
an unwarranted jury instruction. (>People v. Szadziewicz (2008) 161
Cal.App.4th 823, 836-838; People v.
Ferraez (2003) 112 Cal.App.4th 925, 932.)
“‘“The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a
just result.”’” (In re Cudjo (1999) 20 Cal.4th 673, 687.)

As we have
already determined, even if counsel had objected on the basis of the
confrontation clause, Word’s testimony did not violate the href="http://www.mcmillanlaw.com/">Sixth Amendment.

In
addition, there was no error in giving CALJIC No. 1.12, thus appellant’s
counsel was not ineffective by failing to object to that instruction.

Appellant
bases his contention about Xuncax on remarks made by the trial court when trial
counsel attempted to recall her to the stand.
Counsel told the court that she would testify that when she was working
in rural Guatemala she saw “bodies and body parts floating in the rivers with
stakes very similar to the one in this case sticking out of their torsos and
heads. And that it’s been her experience
the purpose of that was to intimidate the people.” The court then remarked, “I can’t believe
that you let her get off the stand without saying that. That’s critical stuff. . . .” But the court did not allow counsel to recall
Xuncax.

However, a
review of the complete transcript reveals that during the discussion about the
extent of Xuncax’s expertise, the court and counsel did discuss that Xuncax
would testify that “the stick is the signature instrument of the Guatemala
death squads” and that defense counsel first argued that the reason he wanted to
recall Xuncax was that he was not satisfied with the Spanish interpreter. The court made comments at sidebar to defense
counsel about his failure to interpose timely objections. The prosecutor then reiterated her objection
to re-calling Xuncax, and defense counsel was only able to say that he would
ask Xuncax which acts of violence she personally witnessed. The court then replied, inter alia, “I think
the record is getting pretty much replete with the fact that things are coming
up in a hodge podge manner, and I don’t believe there is any system or plan as
to what is going on here. . . . I
believe this issue whether or not atrocities were committed in Guatemala at the
time this man was in Guatemala was established.”

We conclude
the trial court did not err in refusing to allow defense counsel to recall
Xuncax. Doctor Degrati already opined
that appellant was not sane and that his criminal acts were the result of his
reenactments of the violence in Guatemala.
Therefore, any testimony on this subject by Xuncax would have been
cumulative and any error in failing to question her further was not
prejudicial. Furthermore, Xuncax had
never met appellant and thus could not opine on whether he had personally seen
any of the crimes committed with sticks.
During argument, defense counsel pointed out the weaknesses and
credibility problems with Dr. Sharma’s testimony, and the prosecutor did the
same with Dr. Degrati’s and Xuncax’s testimony.
The jury found Dr. Sharma to be the more credible witness. It is not reasonably probable appellant would
have been acquitted had his counsel asked Xuncax about the sticks used in
Guatemala. Accordingly, appellant was
not deprived of the effective assistance of counsel. (People
v. Kraft (2000) 23 Cal.4th 978, 1068.)

DISPOSITION



The
judgment is affirmed.







WOODS,
J.



We concur:







PERLUSS, P. J. ZELON,
J.