P. v. Williams

















Filed 3/21/13 P. v. Williams CA1/2

Opinion following rehearing

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

THE PEOPLE, Plaintiff and Respondent, v. DAMON D. WILLIAMS, Defendant and Appellant.

A132601 (Alameda County Super. Ct. No. H47926)

>I.
INTRODUCTION

Defendant was
convicted of the following crimes against the following victims: (1) Shannon Doe: forcible
penetration by a foreign object (Pen. Code § 289, subd.(a)(1)),href="#_ftn1" name="_ftnref1" title="">[1]
three counts of forcible rape (§ 261,
subd. (a)(2)), and two counts of forcible oral
copulation (§ 288a, subd. (c)(2)); (2) Barbara Doe: forcible rape (§ 261, subd. (a)(2)), and
forcible sodomy (§ 286, subd. (c)(2)); (3) Cecilia Doe: forcible rape (§ 261,
subd. (a)(2)); and (4) N. Doe: assault with intent to commit a sex crime (§
220, subd. (a)).

On appeal, he
argues that the trial court erred because (1) it failed to give sua sponte a
unanimity instruction on one of the counts involving Shannon Doe; (2) it did not
instruct the jury sua sponte on the meaning of “consent”; (3) it failed to
instruct sua sponte on simple assault as a lesser included offense of rape with
regard to Cecilia Doe; (4) it failed to instruct href="http://www.mcmillanlaw.com/">sua sponte on simple assault as a lesser
included offense of assault with intent to commit rape with regard to N. Doe;
and (5) it erred in admitting testimony from the nurse who conducted Cecilia
Doe’s sexual assault examination.

Finding
no error, we affirm the judgment.

>II.
FACTUAL AND PROCEDURAL BACKGROUND

A. Shannon Doe

The first of multiple sexual assaults committed by
defendant occurred on February 23, 2008 against Shannon Doe.

After
an argument with her wife on February 23, 2008, Shannon went on a “prolonged
walk.” Around 3:00 a.m., she decided to return
home. As she made her way home,
defendant grabbed her from behind. Shannon struggled with defendant and, during the struggle,
defendant attempted to remove her belt and clothing. Throughout the struggle, defendant choked her
and threatened to stab her. Shannon feared for her life and she
stopped struggling. Defendant then
sexually assaulted her. At trial, Shannon testified to three
consecutive vaginal penetrations, followed by two forcible oral
copulations. She testified that
defendant first penetrated her vaginally and then penetrated her a second
time. Defendant paused briefly to
masturbate himself and then penetrated Shannon a third time. Following these three acts of vaginal penetration,
defendant twice forced Shannon to orally copulate him.

Once defendant completed his sexual assault of Shannon, he allowed her to get
dressed and Shannon walked away toward some nearby residences. At a nearby house, Irma Chavez lent her phone
to Shannon to call the police. Chavez testified that Shannon came to her house “early
morning” saying that she had just been raped.

Later,
Shannon realized that defendant had
kept her cell phone and wallet. On December 10, 2008, Inspector Michael Woods recovered Shannon’s cell phone and driver’s license from defendant’s
residence. In court, Shannon identified defendant as her
attacker.

Josh
Luftig, a physician assistant who works in the Highland Hospital emergency room
as part of the Sexual Assault Response Team (SART), performed Shannon’s sexual
assault examination. He testified that
Shannon sustained bruising and trauma to her knees, elbows, head, and
neck. He testified that she also
sustained vaginal trauma and bruising, both of which were evidence of sexual
assault. In addition to the three rapes
and two forcible oral copulations, Shannon told him that she was digitally
penetrated in her anus twice and that her assailant “used fingers before each
penile insertion.” Luftig’s examination
of her confirmed this as he found abrasions in her rectum. He testified that the results of his
examination were consistent with Shannon’s account of the incident.

B. Barbara
Doe

Barbara testified that, at about 3:30 a.m. on October
8, 2008, she went to a Valero station in Hayward in order to use the bathroom
and then across the street to a liquor store in order to charge her phone using
an outlet outside the store. She then
walked back to Schaffer Park, a few blocks away to return to the bench where
she had been sleeping. >

She was ready to leave, so she picked up her bag. As she did so, a man came up behind her,
grabbed her and threw her down on the ground.
The man forced her to her knees and pulled her head back by grabbing her
hair. As he did so, he said, “Do you
feel me? Do you feel
this? . . . [¶] . . . If you don’t , keep
your fucken mouth shut. I’ll kill
you.” She felt something against the
side of her face. The man had a small
pistol in his hand, which he was “cramming” into the side of her head “at full
force.” She was frightened. She fought back against the man “for a long
time” as he tried to force her onto the bench.
The man had his hands around her neck and was choking her. She thought she was dying.

During
the struggle, the man removed her clothes and vaginally and then anally raped
her. She could see that her assailant
was African-American, but was otherwise unable to identify him. After the attack, she ran to a friend, who
helped her contact the police. The
police located a used and moist condom about five feet from the bench where she
was attacked. Forensic testing was
conducted on the condom and resulted in the discovery of Barbara’s DNA as the
“major profile.” The “minor profile”
from this forensic testing matched defendant’s DNA.

>3. >Cecilia Doe

Cecilia testified that, at about 4:00 a.m. on October
20, 2008, she asked defendant, who was standing “in front of [some] apartments”
in Hayward, if she could use the bathroom.
Cecilia had seen defendant before, hanging out at a liquor store in the
area. Defendant responded “over there,”
and Cecilia went down to the side of the building and urinated on the
pavement. When she was finished, she
pulled up and buttoned the pants she was wearing.

Defendant
approached her and told her to “bend over.”
Cecilia complied, although she did not wish to have sex with
defendant. She did so because she was
“scared.” She testified that defendant
threatened to kill her and she was afraid she was going to be hurt. Defendant,
using a condom, put his penis into her vagina.
Cecilia told defendant to stop.
He continued to assault her for another five minutes. After he ejaculated, defendant threw the
condom “in the driveway.”

Half
an hour later, Cecilia reported the attack to the police. The police took her to the hospital for an
examination. Cecilia testified that she
was hurting and “all bruised up.”

Cecilia,
who is schizophrenic, a
disease for which she takes medication including the morning before her court
appearance, testified that at the time of the attack she was under the
influence of methamphetamine. She had in
the past, and occasionally still does, exchange sex for money and for drugs. The attack by defendant was not of this
nature. In the past, defendant had
helped her obtain drugs.

Patricia
Meyer, a nurse practitioner who worked in the emergency department of Highland
Hospital in Alameda County, examined Cecilia on October 20, 2008. During the course of this sexual assault examination,
Cecilia told Meyer that she had had sexual intercourse as well as oral sex
within the last five days. She specified
October 19, 2008 as the date of this sexual activity. Meyer examined Cecilia’s head, neck and mouth
and found no injury or bruising. She did
not examine Cecilia for injuries to the buttocks, anus and rectum because
“there was no indication that there had been any attempt to
contact . . . that area.”
Meyer’s examination of Cecilia’s external genitalia revealed redness,
bruising, areas of tenderness and tears in the skin. Cecilia herself was calm and
emotionless. Cecilia declined to allow
Meyer to conduct an internal vaginal examination with either a speculum or
through a procedure in which dye was inserted into her vagina. She also declined to have photographs taken
of her external genitalia. Meyer
collected on oral swab and two vaginal swabs to determine whether any sperm was
present in Cecilia’s vagina. She also
noted that Cecilia reported to her that her assailant used a condom when he
raped her. In such an instance, if the
condom does not tear, no sperm would be found when the swabs are tested. Meyer concluded that the injuries to Cecilia
were consistent with her account of the rape.

Semen
was recovered from the scene of the assault and, when tested, revealed a single
source DNA profile which matched defendant’s, a profile that occurred in one of
1.161 quadrillion African Americans.

C. N.
Doe

Early in the morning of October 28, 2008, N., who had
just gotten off work walked to the Mi Cocina Restaurant in Hayward to get
something to eat. Finding that the
restaurant wasn’t open, she sat down in front of the restaurant. She heard some noises in the bushes near
where she was sitting, turned and saw defendant. He asked her for a light or a cigarette. He came up behind her, threw her sweatshirt
over her face, and choked her. She
fought back. He put a gun in her mouth,
and as she fought back, the gun came out and “went flying.” She kicked the gun away. When asked why she kicked the gun away, she
responded “Why would I want a gun sitting next to me after I popped it out of
my mouth? So he can pick it up again and
hurt me again with it?”

The defendant grabbed her on the hips
and the back of her pants. During the
struggle the defendant also bit her on the lower back. Two of her friends approached during the
struggle and when he saw them defendant got up from his knees.

One
of the friends testified that he saw “a male gentleman on top of [N.] and he
had his hand over her mouth,” the man was “straddled on top” of N. After the man got up, the witness saw that N.
“had her pants down, her shoes and socks were off, her top was pulled over her
head.” Another friend also saw defendant
on top of N., who was on the ground, with her shirt over her head. One of her friends asked defendant what he
was doing. Defendant told her friend to
“back up, back away from him.”
Defendant, who had the gun in his hand at this point, aimed it at the
friend and then ran away. That evening,
after defendant was detained, N. identified him as her attacker.>

With regard to Shannon,
defendant was convicted of one count of forcible penetration by a foreign
object, three counts of forcible rape, and two counts of forcible oral
copulation. As to the crimes against
Barbara, defendant was convicted of forcible rape and forcible sodomy. Defendant was also convicted of forcible rape
of Cecilia and assault with intent to commit a sex crime against N.

This
timely appeal followed.

>II. DISCUSSION

A. Unanimity
Instruction

With
regard to Shannon Doe, defendant was convicted of one count of forcible penetration
by a foreign object (count 1), three counts of forcible rape (counts 2-4), and
two counts of forcible oral copulation (counts 5-6). Defendant now argues that the trial court’s
failure to give the jury a unanimity instruction deprived him of his
constitutional right to a unanimous verdict as to count 1. He argues that because there was evidence of
two digital anal penetrations and
three digital vaginal penetrations, a unanimity instruction was required in
order to ensure that the jury based its conviction upon the same discrete
act. We disagree.

We
review a claim of instructional error de novo.
(People v. Manriquez (2005) 37
Cal.4th 547, 581; People v. Waidla
(2000) 22 Cal.4th 690, 733.) In a
criminal case, a jury verdict must be unanimous. (People
v. Collins (1976) 17 Cal.3d 687, 693.)
The jury must agree unanimously that the defendant is guilty of a >specific crime. (People
v. Diedrich (1982) 31 Cal. 3d 263, 281.)
“[W]hen the evidence suggests more than one discrete crime, either the
prosecution must elect among the crimes or the court must require the jury to
agree on the same criminal act.” (>People v. Russo (2001) 25 Cal.4th 1124,
1132.) “The [unanimity] instruction is
designed in part to prevent the jury from amalgamating evidence of multiple
offenses, no one of which has been proved beyond a reasonable doubt, in order
to conclude beyond a reasonable doubt that a defendant must have done >something sufficient to convict on one
count.” (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)

However, an exception to
this general rule exists “where a series of acts form part of one and the same
transaction, and as a whole constitute but one and the same offense.” (People
v. Masten (1982) 137 Cal.App.3d 579, 588, disapproved on other grounds in >People v. Jones (1988) 46 Cal.3d 585,
600, fn. 8; People v. Mota (1981) 115
Cal.App.3d 227, 231-234 (Mota).) This applies especially “when the defendant
offers essentially the same defense to each of the acts, and there is no
reasonable basis for the jury to distinguish between them.” (People
v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Because the acts consist of a continuous course of conduct, the prosecutor
is not required to elect which individual act should constitute the basis of
the crime. (People v. Diedrich, supra,
31 Cal.3d at pp. 281-282.)

Here,
defendant’s assault of Shannon was part of a continuous course of conduct in
which each of the acts in the sexual assault were committed by defendant in the
course of the continuing sexual assault against Shannon. The entirety of the assault occurred on a
pedestrian walkway. The assaultive acts
occurred one after the other, with no breaks in between. Therefore, despite the physical distinction
between the anal and vaginal digital penetrations, it is highly unlikely that the jury would have found that only one
type or instance of these assaultive
acts occurred without also concluding that the others also took place. In addition, defendant’s counsel did not
challenge Shannon’s account of the continuing sexual assault during the trial and, in fact, found her testimony
to be credible. If defendant’s counsel
found Shannon to be credible, then it is reasonable to assume that the jury did
as well.

>People v. Champion (1995) 9 Cal.4th 879,
932 (Champion), overruled on other
grounds in People v. Combs (2004) 34
Cal.4th 821, 860, supports this conclusion.
In Champion, the rape victim
testified that the defendant raped her twice.
Both rapes were virtually identical.
(Champion at p. 932.) Defendant did not offer evidence showing that
he only committed one of the rapes.
Instead his defense was that he did not participate in the crimes. (Ibid.) The Champion
court held that “once a juror determined that defendant Ross committed one of
the two rapes, it is inconceivable that the juror would not also conclude that
Ross also committed the second rape of the same victim.” (Ibid.) The court concluded that neither the evidence
nor the defense theories presented would have offered the jurors a reasonable
basis in which to disagree on which act the defendant committed and still
convict him of the crime. (>Ibid.)
“ ‘ “A unanimity instruction is required only if the jurors
could otherwise disagree which act a defendant committed and yet convict him of
the crime charged.” [Citation.] “[W]here
the acts were substantially identical in nature, so that any juror believing
one act took place would inexorably believe all acts took place, the
instruction is not necessary to the jury’s understanding of the
case.” ’ ”) (>Ibid.)


Here, as in Champion, the two types and instances of digital penetrations were substantially similar. The jury found Shannon and Luftig credible and
defendant’s counsel himself said that Shannon was a href="http://www.mcmillanlaw.com/">credible witness. Thus, it is inconceivable that the jury would
have found that one type or instance of digital
penetration occurred but not the others. Therefore, a unanimity instruction was not
necessary.

Additionally, >Mota, supra, 115 Cal.App.3d 227 supports our conclusion. In Mota,
the victim was kidnapped and repeatedly raped over the course of two hours, at
two separate locations. (>Id. at p. 230.) The trial court denied Mota’s motion to force
the prosecution to elect which act constituted the basis of the sexual assault
charge. (Id. at p. 231.) Mota
appealed and the court found that “[n]umerous cases hold that the prosecution
need not inform ‘the defense as to which specific offense it [intends] to rely
upon for a conviction [where] the indictment [charges] but one offense and the
evidence [tends] to prove two or more separate and distinct acts, either one of
which would have supported the charge of rape, where the acts complained of
were perpetrated on the same occasion and within a few minutes of each other,
and constituted one continuous felonious act.’ ” (Id.
at p. 233.) Thus, the court held that
because the acts constituted a continuous course of conduct, no election was
required. (Ibid.)

Here,
as in Mota, the victim was assaulted
multiple times during the course of a single episode. Defendant assaulted Shannon both anally and
vaginally and her SART report also evidenced multiple digital penetrations of
her anus and vagina. These acts occurred
uninterrupted, at the same location, over the continuous course of a few
hours. Because the sexual assault
against Shannon involved substantially similar types and instances of digital
penetrations that were part of a continuing course of conduct, the trial court
was not required to give a unanimity instruction.

Citing People v. Madden (1981) 116 Cal.App.3d 212 (Madden), defendant argues that his actions did not constitute a
continuous course of conduct. >Madden is inapposite. In that case, the defendant was charged with
one count of forcible oral copulation but the prosecution presented evidence of
multiple acts of forcible oral copulation; and the court found that a unanimity
instruction was required. (>Id. at pp. 214-215.) However, the opinion in Madden is unclear regarding the factual circumstances surrounding
the forcible oral copulations. The court
states that they “occurred within a relatively short time span,” but it is
unclear as to whether that “short time” spans hours, days, or weeks. (Id.
at p. 214.) Here, it is clear that the
multiple penetrations occurred over the course of a few hours and were part of
a continuous sexual assault.
Additionally, Madden was
decided before our Supreme Court held that a unanimity instruction is not
required where the acts are so substantially similar that if the jury believed
one act occurred, they would have also believe the other act occurred.

However,
even if a unanimity instruction was required, the failure to give such an
instruction was harmless error under either Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman)
or People v. Watson (1956) 46 Cal.2d
818, 836 (Watson).href="#_ftn2" name="_ftnref2" title="">[2] Shannon testified to three forcible rapes and
two forcible oral copulations. Defense
counsel did not question Shannon’s credibility regarding the incident; in fact,
he said that she was very credible.
Further, the sexual-assault examiner testified that defendant digitally
penetrated Shannon anally as well as vaginally.
There was no reason for the jury to doubt Shannon or Luftig’s
testimony. Given the strength and
credibility of Shannon and Luftig’s testimony, it is highly unlikely that the
jury would have found that one type
or instance of digital penetration occurred but not the others. Thus, we find that even if there was an
instructional error, it was harmless under either Watson or Chapman.

B. Consent
Instruction

The jury was instructed on
the elements of forcible penetration by a foreign object, forcible rape and forcible
sodomy. Specifically, the court
instructed the jury that the People were required to prove: “One, the defendant
had sexual intercourse with a woman; two, he and the woman were not married to
each other at the time of the intercourse; three, the woman did not consent to
the intercourse; and four, the defendant accomplished the intercourse by force,
violence, duress, menace, or fear of immediate and unlawful bodily injury to
the woman or to someone else.” The court
also instructed the jury more specifically on the meaning of “force,” “duress,”
“retribution,” “menace,” and “fear.” The
court gave similar instructions with regard to forcible penetration by a
foreign object and forcible sodomy.

Neither
the defense nor the prosecution requested an instruction specifically defining
consent.href="#_ftn3" name="_ftnref3" title="">[3] Defendant now argues that the trial court
erred because it did not instruct the jury sua sponte on the definition of
consent and in so doing, violated his Fifth, Sixth, and Fourteenth Amendment
rights.

The
trial court is required to give sua sponte instructions only
“ ‘ “ ‘on the general principles of law relevant to the issues
raised by the evidence.
[Citations.] The general
principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.’
[Citation.]” ’ [Citation.]” (People v. Kimble (1988) 44 Cal.3d 480, 503.)

Here,
the trial court gave the jury correct instructions on the “general principles
of law” regarding the crimes with which defendant was charged, including the
requirement that the victim did not consent to these crimes. href="#_ftn4"
name="_ftnref4" title="">[4]
Cecilia testified that she did not want to have sex with the defendant, and did
so because he threatened to kill her and she was afraid she was going to be
hurt. She told defendant to stop and he
did not. The physical evidence
corroborates Cecilia’s testimony of forcible rape. The sexual assault examiner observed that her
external genitalia were red and bruised and that there was tenderness and
tearing in the skin. The examiner
concluded that the injuries to Cecilia were consistent with Cecilia’s account
of the rape. In closing argument,
however, defense counsel speculated that Cecilia might have consented to having
sex with defendant. He pointed out that
Cecilia approached defendant to ask to use the bathroom, that she had a prior
relationship with defendant involving drugs, that she had traded sex for drugs
and that she told defendant to “stop” 20-25 minutes after the assault began and
speculated that, therefore, she had consented to the assault. This speculative argument does not amount to
substantial evidence of a lack of consent and, therefore, defendant was not entitled
to a sua sponte consent instruction.

However,
even if the trial court was required to instruct sua sponte on the definition
of consent, it was not “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.” (Watson,
supra, 46 Cal.2d at p. 836.) The
evidence that Cecilia did not consent to have sexual intercourse with defendant
was strong. Defendant’s very broad
suggestion that a woman who had in the past traded sex for drugs and had
obtained drugs from the defendant, and used the word “stop” sometime toward the
end of a sexual assault, must therefore have consented to the assault was both
unconvincing and did not raise an issue that would have required a specific
instruction about the meaning of consent.
Nor would the jury have reached a different conclusion about whether
defendant was guilty of forcible rape had it before it a more specific
definition of the word “consent.”

C. Lesser
Included Offenses

Defendant
argues that the trial court erred when it did not, sua sponte, instruct on
simple assault (§ 240) as a lesser included offense of rape with regard to
Cecilia. He also argues that the trial
court should have given the jury, sua sponte, an instruction that simple
assault is a lesser included offense of assault with intent to commit a sex
crime with regard to N. We disagree with
both contentions.href="#_ftn5" name="_ftnref5"
title="">[5]

“ ‘ “It is settled that in criminal cases,
even in the absence of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence.
[Citations.] . . . .”
That obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to whether all of the elements
of the charged offense were present . . . but not when there is
no evidence that the offense was less than that charged.’ ” (>People v. Breverman (1998) 19 Cal.4th
142, 154.)

To
warrant an instruction on a lesser included offense, “there must be substantial
evidence of the lesser included offense, that is ‘evidence from which a
rational trier of fact could find beyond a reasonable doubt’ that the defendant
committed the lesser offense. [Citation.] Speculation is insufficient to
require the giving of an instruction on a lesser included offense. [Citations.]
In addition, a lesser included instruction need not be given when there
is no evidence that the offense is less than that charged.” (People
v. Mendoza (2000) 24 Cal.4th 130, 174.)

With
regard to Cecilia, defendant argues that there was substantial evidence that
Cecilia consented to intercourse with him and, therefore, a simple assault
instruction should have been given. The
fact that Cecilia had, in the past, traded sex for drugs and that she had
obtained at some point obtained drugs from defendant is not substantial
evidence that, on this occasion she consented to intercourse with
defendant. Nor is it the case that a
woman’s use of the “stop” 20 or 25 minutes into a rape is substantial evidence
of consent. Further, even if there was
consensual sex between Cecilia and defendant, there was no substantial evidence
that defendant committed a crime against Cecilia that was not sexual in
nature. To the contrary, Cecilia’s
injuries were to her genitalia and the sexual assault examiner who saw her
after she reported the attack testified that these injuries were consistent
with rape, not consensual sex.
Accordingly, a simple assault instruction was not required.

In
addition, even if the trial court erred, any such error was harmless under >Watson, supra, 46 Cal.2d at page
836. (Breverman, supra, 19 Cal.4th at p. 178.) Even if the jury had been instructed on
simple assault, there was no evidence, much less substantial evidence, that
defendant’s encounter with Cecilia could have involved consensual sex as well
as simple assault.

With
regard to N., defendant contends that the court should have instructed the jury
on simple assault as a lesser included offense of assault with intent to commit
a sex crime. However, there was no
substantial evidence that defendant’s attack on N. was with anything other than
the intent to commit a sex crime. During
his attack on N., defendant attempted to pull her pants off. A witness saw “a male gentleman on top of
[N.] and he had his hand over her mouth,” the man was “straddled on top” of
N. After the man got up, the witness saw
that N. “had her pants down, her shoes and socks off, her top was pulled over
her head.” Another witness also saw defendant
on top of N., who was on the ground, with her shirt over her head. In contrast, there were no facts that even so
much as suggested that defendant’s intent was not sexual. Nor could there have been error of any kind,
had such an instruction been merited.
The evidence that defendant intended to commit a sex crime was overwhelming
and a jury would not instead have found him guilty of simple assault.

D. Admission
of Testimony Regarding Statement to Sexual Assault Examiner

Defendant argues that the
trial court erred in admitting a portion of the testimony of Patricia Meyer,
the nurse practitioner who conducted the sexual assault examination of Cecilia,
regarding whether Cecilia told her that defendant had verbally threatened her.
The relevant testimony is as follows:

“Prosecutor: I’m not asking for what the words were, do
you document whether or not there was a threat made?

“Mr.
Broome: Objection. This is hearsay. Calls for hearsay. . . .

“The
Court: Overruled.

“The
Witness: So there was a verbal threat
made to her.

“Mr.
Ford: That’s all. . . .”

Defendant
argues that the trial court erred in
overruling his hearsay objection to Meyer’s statement that defendant made a
“verbal threat” to her. He also> contends that the court’s admission of
Meyer’s testimony regarding Cecilia’s statement violated his confrontation
clause right. We disagree.

First,
the trial court did not abuse its discretion in overruling defendant's hearsay
objection. Meyer’s testimony regarding
her SART examination of Cecilia, an examination which occurred shortly after
the sexual assault, was admissible under the hearsay exception for spontaneous
or excited utterances set out in Evidence Code section 1240. (People
v. Trimble (1992) 5 Cal.App.4th 1225, 1235-1236.)

With regard to defendant’s confrontation clause
argument, defendant has waived this claim because he did not object on
confrontation clause grounds to Meyer’s testimony. Nor did his hearsay objection preserve this
issue for appellate review. (>People v. Chaney (2007) 148 Cal.App.4th
772, 779 [confrontation clause analysis “ ‘distinctly different than that
of a generalized hearsay problem.’ ”].)

Moreover,
even if the trial court did err in admitting Meyer’s testimony regarding
Cecilia’s “threat” statement, either because it did not fall within an
exception to the hearsay rule or because it violated defendant’s confrontation
clause right, we find no prejudicial error
because the admission of testimony that defendant made a “threat” to
Cecilia was harmless under Watson, supra,
46 Cal.2d at page 836 and Chapman,
supra, 386 U.S. at page 24. Meyer’s> physical examination of Cecilia
separately corroborated Cecilia’s
account of the nonconsensual nature of the attack in that Cecilia’s external
genitalia revealed redness, bruising, areas of tenderness and tears in the
skin. Meyer also concluded that the
injuries to Cecilia were consistent with Cecilia’s account of the rape. Thus, even without Meyer’s> testimony that Cecilia reported to her
that defendant threatened her, the jury still had before it ample evidence that
Cecilia did not consent to the assault.

>IV. DISPOSITION

The judgment is affirmed.







_________________________

Haerle,
J.





We concur:





_________________________

Kline, P.J.





_________________________

Richman, J.