Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C149900
Lambden, J.
Defendant Calvin Choyce appeals from a final judgment convicting him of sexual offenses against women identified herein as Jane Does 1 through 4, and sentencing him to a term of 358 years to life. Defendant argues that reversal is necessary because the trial court committed prejudicial error regarding his motions about legal representation, its admission of certain evidence, and its instruction to the jury regarding flight. Defendant also argues that, should we find these purported errors were individually harmless, that their cumulative effect was prejudicial. We affirm the judgment.
BACKGROUND
In May 2005, the Alameda County District Attorney charged defendant with four counts of forcible rape of Jane Does 1 through 4, one count of sexual penetration by a foreign object of Jane Doe 1, three counts of forcible oral copulation regarding Jane Does 2, 3 and 4, and two counts of second degree robbery regarding Jane Does 3 and 4. The District Attorney further alleged that defendant personally used a dangerous or deadly weapon in committing the sex offenses against Jane Doe 2 and tied or bound her during the offenses; personally used a dangerous or deadly weapon in committing the sex offenses against Jane Doe 2 and kidnapped her, with the movement substantially increased the risk of harm to her; kidnapped Jane Doe 3 and Jane Doe 4, with the movement substantially increased the risk of harm to each of them; and had suffered prior serious felony convictions within the meaning of the Three Strikes Law and section 667, subdivision (a)(1), and prior prison terms within the meaning of section 667.5, subdivision (b).
We now summarize the evidence that is relevant to this appeal.
The Evidence Regarding Jane Doe
Jane Doe 1’s Testimony
Jane Doe 1 testified that around 5:00 p.m. on July 17, 2004, she and a friend were working as prostitutes in the vicinity of 27th Avenue and International Boulevard in Oakland, California, when a man pulled up in a white Honda hatchback and expressed an interest in Jane Doe 1. She got into his car, and they agreed he would pay her $125 for sexual intercourse. At her request, he followed her and her friend back to her apartment, where she gave her car keys to her friend and said she would call when they were done.
Jane Doe 1 also testified that inside her apartment, the man “pretended” to act nervous when she asked him for money, asked if a boyfriend was there, and if she had “done this” before. She tried to relax him by taking his shirt off and saw a large scar on his stomach before he pulled down his shirt. He stood up and indicated he could not “do this,” walked through the apartment, and then suddenly began to choke her near a hallway closet. They struggled, and he hit her in the face, pulled out a knife, told her he would stab her if she moved, threatened to commit forcible anal intercourse, made her get down on the floor of her closet, bound her wrists and ankles with rope, stuffed a sock from her closet in her mouth, and tied a belt around her mouth. On direct examination, she testified that he threatened to spray her with pepper spray; on cross-examination, after being shown her preliminary hearing testimony, she said that he sprayed her in the face as well. While at the preliminary hearing she said she had not seen the pepper spray canister, at trial she said she had. She heard what sounded like a condom wrapper being opened, and he penetrated her vagina with his penis for a minute or two. She heard a spray and felt a burning sensation when he inserted his finger in her vagina. He also sucked on her nipple. He told her to count to 30 and left the apartment.
Jane Doe 1 further testified that she wriggled out of the rope tied around her ankles and telephoned her friend, who came and helped her. Jane Doe 1 showered to rid herself of the burning sensation and her friend called the police, who arrived about a half an hour later. At first, Jane Doe 1 hid from the police that she had agreed to have sex with her assailant for money because she was embarrassed, but then told of the circumstances of their meeting. She refused to go to the hospital for a sexual assault examination, although the police informed her that such an examination could find microscopic bits of evidence. Photographs were taken of her that night that showed her injuries from the incident.
Jane Doe 1 testified that she later called the police when she thought she saw defendant on the street, but it was not him. She called another time after seeing him in a car, but police did not respond. At trial, she had no doubt that defendant was her assailant.
Jane Doe 1 was also shown photographs of Jane Does 2, 3, and 4. She testified that she knew Jane Doe 2 from juvenile hall, last had contact with her a couple of years before the assault, and did not know she was involved in the case until the trial.
Defendant’s Testimony
Defendant testified that on June 17, 2004, he met Jane Doe 1, who was standing on the corner of East 14th Street. They agreed on a price of $125 for oral sex and sexual intercourse. She wanted him to come to her house, but he was concerned that someone else might be there. At the apartment, he used the bathroom and sat down on the couch. He realized that he only had $80 and wanted to go to his car to get more money, but Jane Doe 1 told him to stay and tried to take off his shirt. He had scarring on his stomach. After she grabbed him in what he thought was an attempt to arouse him, he tried to explain again that he had to get more money, then said he no longer felt like having sex. Jane Doe 1 started crying, saying that she needed the money, then became “kind of hysterical,” and he left. He did not have sex with her or tie her up before he left.
Defendant also acknowledged that in a June 25, 2004 interview with police, he had told a “partial lie” when, in response to their questions, he did not admit that he had gone with a prostitute back to her apartment the previous week, on June 17, although he had remembered the event.
Other Testimony
Oakland Police Officer Douglas Keely testified that he contacted Jane Doe 1 and another woman at an apartment in response to a 911 call on the evening of June 17, 2004. Jane Doe 1 said she had been sexually assaulted, and was crying, upset and distraught, partially dressed and doubled over. Over defense objection, Keely testified that, based on his experience as an officer, he thought Jane Doe 1 looked like she had experienced a traumatic event. He encouraged her to go to the hospital to be examined, but she would not, stating that she was an “emotional wreck” and that she thought that she had washed off the evidence.
Evidence Technician Julie Jaecksch testified that she was dispatched to an Oakland apartment late in the evening of June 17, 2004, where she photographed Jane Doe 1, who had an abrasion on her right cheek and a small lump on her forehead, possibly a burst blood vessel in her eye, and a small knee abrasion. She photographed welts, scratches and abrasions on Jane Doe 1, a knotted yellow rope cut at its knots, and a belt. She also swabbed an apparent dried blood stain on the wall near the closet. Her photographs were introduced into evidence.
Criminalist Chani Sentiwany, testified that she examined blood from Jane Doe 1’s residence and concluded it was from a female, and that defendant was not a source.
Oakland Police Sergeant Anthony Souza testified that in June 2004, he showed Jane Doe 1 a photographic lineup. She identified the photograph of defendant as her assailant.
The Evidence Regarding Jane Doe 2
Jane Doe 2’s Testimony
Jane Doe 2 testified that she was walking to her Oakland residence around 2:30 a.m. on September 19, 2003. She worked as a prostitute, but was not working then. At 4500 International Boulevard, a man came from around the corner, grabbed her by the front of her neck, and told her to get into his car. He held a weapon to her neck that had a pointed tip, like a razor, and felt sharp and cold. She got into his vehicle, a four-door silver small truck or SUV. The man drove for about five minutes and stopped at what looked like some type of junkyard or dumping ground. He continued to brandish the weapon and make threats, and she complied with his orders to get into the back seat, oral copulate him, and lie down. He verbally threatened her, then penetrated her vagina with his penis for several minutes, then told her to finish orally copulating him, which she did, and he ejaculated into her mouth. She spit out his semen and rubbed it on her chest in an effort to preserve evidence for a future rape examination. She did not consent to any of defendant’s actions and told him that she was going to report being raped. She got out of the vehicle and he told her to face the opposite direction until he drove away. She walked to the nearest pay phone and telephoned a friend, and later went to the hospital and underwent a sexual assault examination.
Jane Doe 2 further testified that sometime later, she saw her attacker circling in a brown SUV on International Boulevard. When a police officer pulled him over, she told the officer what had happened to her and gave her personal information, but left without knowing if the man was arrested.
At trial, she identified defendant as her attacker, indicating that she had no doubt that he had assaulted her. She also acknowledged that at the time of trial she was on probation for crack cocaine use.
She did not recall meeting Jane Doe 1 in juvenile hall, although she had been in juvenile hall at some point. She did not know Jane Doe 1, or any of the other Jane Does.
Defendant’s Testimony
Defendant testified that at 2:00 a.m. on September 19, 2003, he encountered Jane Doe 2 on the corner of East 14th and Fruitvale Avenue in Oakland. He engaged Jane Doe 2 as a prostitute and they drove in his car to a nearby estuary. She agreed to sexual intercourse and oral copulation at a price of $30, which defendant said was all he had. He would not pay her as she requested prior to any acts because other prostitutes had taken his money and fled with their pimps. Neither had a condom and defendant ejaculated on the seat of the truck at Jane Doe 2’s request. He paid her, but she saw that he had $52 in his pocket rather than $30. Although he gave her $2 more, she became mad at him and said that she would “get” him for that, and he left.
On cross-examination, defendant acknowledged that he had lied at first to police in an October 31, 2003 interview, not admitting that he had had sex with Jane Doe 2. Also, he acknowledged that when he told his interviewers about his dealings with Jane Doe 2, he did not mention her seeing the extra $20 in his wallet because it “slipped” his mind, but said that he told them about it when the recorder was off.
Other Testimony
Lauri Paolinetti, a physician’s assistant at Highland Hospital in Oakland, conducted sexual assault examinations in 2001 and was part of a Sexual Assault Response Team (SART). She testified about a report completed by her colleague, Negga Wolderusael, a physician’s assistant, who conducted the sexual assault examination of Jane Doe 2. The report indicated that Jane Doe 2 stated that ejaculation had occurred in her mouth. Wolderusael attempted to examine for semen on Jane Doe 2’s face and her mouth. Jane Doe 2 was described as “tired and upset.” A Wood’s lamp examination was positive for semen and the findings were stated as “consistent with history.”
Criminalist Chani Sentiwany testified that she examined semen samples obtained from Jane Doe 2. The sperm was from a single source and the numbers that were typed were the same as those for defendant’s reference sample. Defendant also could not be eliminated as the potential donor of the material on an oral swab.
Police Officer Mark Contreras testified that on October 30, 2003, he was dispatched to the 4100 block of International Boulevard in Oakland to assist another officer, and found an agitated defendant in the rear of that officer’s vehicle. Contreras drove defendant to the hospital for treatment of a cut on his head and for a sexual assault examination because there had been an allegation of sexual assault. Defendant was then transported to the Oakland Police Department.
Police Officer Michael Weisenberg testified that he showed a photographic lineup of six individuals to Jane Doe 2 in July 2004. Jane Doe 2 recognized “Number 2” as the person who had sexually assaulted her, thus identifying defendant.
The Evidence Regarding Jane Doe 3
Jane Doe 3’s Testimony
Jane Doe 3 testified that around 10:00 p.m. on November 27, 2001, she was in the vicinity of East 14th Street in Oakland when a man, whom she identified as defendant, drove up in a car. He asked her for directions and, as she answered him, he said he had a gun and ordered her to get into his car. She did not see a gun, but believed he had one, and was cornered by his car, so she complied. He drove for a short time to a dark area with a cab stand, told her to take off her clothes, and said that he would kill her if she did not comply. He told her to lay back, and he put his penis inside her vagina against her wishes. There was semen on her vagina when he pulled out. She quickly put on her clothes and he said he would kill her if she looked at his license plate. After he left, she flagged down a police officer, and then went to the hospital for a sexual assault examination.
She further testified that in June 2004, she identified defendant as her assailant from a photographic lineup that Oakland police showed to her. She had no question in her mind that defendant attacked her. She acknowledged that she was on felony probation for theft, her third theft offense, at the time of trial.
Defendant’s Testimony
Defendant testified that he met Jane Doe 3 at the corner of 50th Street and East 14th Street on November 27, 2001, around 10:00 or 10:30 p.m., when she waved him down. He asked her to get into his car in order to have paid sex with her, for a negotiated price of $50. They engaged in consensual oral and vaginal sex. He gave her a $50 bill when the sex was over and offered her a ride, but she declined his offer and appeared to have an attitude. He did not ask her what was wrong, and drove off.
Other Testimony
Police Officer Michael Munoz testified that he and his partner were flagged down by a frantically waving Jane Doe 3 on November 27, 2001, at 10:20 p.m. She was screaming, “I’ve been raped, help me.” She held a pair of women’s underwear, was crying, appeared frantic, and said her attacker had wiped his penis with her underwear.
Police Officer Chacon testified that on the evening of November 27, 2001, Jane Doe 3 told him that she had been raped between 10:00 p.m. and 10:10 p.m. She was crying and upset, and was taken to the hospital.
Physician’s Assistant Lauri Paolinetti testified that prior to 2001, she had conducted about 200 sexual assault examinations. Her Wood’s lamp examination of Jane Doe 3 on November 27, 2001, showed the presence of semen on her left and inner right thighs, and just above her pubic hairs. Her pelvic examination of Jane Doe 3 resulted in findings that were unremarkable, and she noted no injuries. Jane Doe 3 had reported that she had been forced to engage in nonconsensual sexual activity. Paolinetti’s examination was “consistent” with Jane Doe 3’s “history” based on the semen on her abdomen.
Criminalist Chani Sentiwany testified that she examined the sperm found on Jane Doe 3’s inner thigh, and a comparison to defendant’s blood sample indicated that he was the clear major donor of the DNA.
The Evidence Regarding Jane Doe 4
Jane Doe 4’s Testimony
Jane Doe 4 testified that around 5:00 a.m. on April 12, 2004, she was working as a prostitute in the area of 29th Street and San Pablo in Oakland when a man in a white CRX approached her. They agreed to either $75 or $100 for sexual intercourse and oral copulation. She got into his car and he drove to Pine and 12th Street as agreed. Once there, he locked the car, grabbed her by the throat, and told her that he would beat her if she did not orally copulate him. She complied. After a minute or two, he took his shorts off, leaned the woman’s seat back, and got on top of her, pushed her underwear to the side, and forced his penis inside her vagina. He ejaculated as he pulled out, and finished ejaculating on the seat. He took money out of her pocket, told her to get out of his car, and said that if she told anyone he would kill her.
Jane Doe 4 testified that after getting out of the car, she called the police and met with them at her home. She went to the hospital for a sexual assault examination, and gave her clothes to hospital personnel. She recalled the man’s license plate was “4WAT 495.” She admitted that she lied to police and told them that she had been kidnapped from West Grand Avenue and Union in Oakland, because the location where she met her assailant was a known place for prostitution, and she did not want to admit that she engaged in prostitution, but said that these were her only lies.
Jane Doe 4’s later sighting, and chase, of defendant led to his arrest. She testified that she saw him several weeks later and stopped a police officer, but the officer did nothing. Then, about two months after the assault, she was in a car with her boyfriend, Alvin Walker, when she saw defendant in his car around 9:00 p.m. Walker wanted to kill defendant and Jane Doe 4 wanted him to “go down” for what he had done to her. They followed defendant onto the freeway and called California Highway Patrol (CHP). Defendant threw things out of his sunroof at them, and later pulled over to the side of the freeway and came towards them. Multiple CHP units arrived and detained defendant after he tried to climb a fence. She identified him as her attacker.
Jane Doe 4 testified that she believed the date of this sighting was July 22, 2004. However, Police Officer Ross Tisdell, testified that he was called to the scene after the chase at 2:30 a.m. on June 22, 2004.
Defendant’s Testimony
Defendant testified that he encountered Jane Doe 4 on April 12, 2004, around 5:15 a.m. on the corner of San Pablo Avenue and Grand Avenue. After they agreed to oral sex and sexual intercourse for $50, she got into his car and told him to drive towards the Port of Oakland. He pulled over, got on top of his car, and she orally copulated him. He paid her $50 and they got into the car, where they had sexual intercourse, and he ejaculated on the passenger seat. She asked him for a ride so she could buy drugs, but he refused, and they argued. He locked her out of the car and left.
Defendant also testified that he did not know when he was being chased on the freeway that he was being pursued by a woman with whom he had had sex. He did not see Jane Doe 4 before the police arrested him.
On cross-examination, defendant acknowledged that in June 2004, he told police that it had been “eight, nine, ten months” since he had been with a prostitute, and that this was a “pretty big lie” because he had been with a prostitute in April 2004.
Other Testimony
Hillary Larkin, a physician’s assistant and director of the SART at Highland Hospital, examined Jane Doe 4 on April 12, 2004, who indicated that her attacker had forcibly penetrated her vagina with his penis and finger, and ejaculated in her vagina and on the car seat. Larkin noted three linear tears to her posterior fourchette, a significant injury in determining whether consensual or nonconsensual sexual intercourse has occurred because 60 percent of sexual assault victims have such injuries, consistent with the first entry of the penis. The injuries were deep enough to expose tissue, which adhered to the application of toluidine blue dye, indicating the injuries were less than 72 hours old.
Evidence Technician Julie Jaecksch testified that she took interior photographs of a Honda Civic CRX hatchback, license plate No. 4WAT485. She removed thin seat covers and photographed a blue canister of pepper spray located on the right front floorboard. The vehicle was registered in defendant’s name. Jaecksch also found several unopened condoms and empty condom wrappers.
Criminalist Chani Sentiwany testified that she examined DNA from underwear, and that defendant could not be eliminated as the potential donor. She also examined male DNA from a vaginal swab, and it was not consistent with defendant’s profile; there was also DNA from another source.
Evidence of Other Offenses
Vinnie Brooks testified that on September 21, 2003, at 9:20 p.m., she was working as a prostitute at 23rd Avenue and International Boulevard in Oakland. A man, whom she identified as defendant, pulled up in a new, silver Ford SUV. She got into his car and agreed to perform oral sex and engage in sexual intercourse for $80. After defendant drove to another location, they got into the back seat of the car, where Brooks asked for payment and that defendant use a condom. Defendant put his hand around her throat, balled up his fist, and said she “looked like the bitch who robbed [him] last week.” He ordered her to orally copulate him, which she did, after he put on a condom when she said she had AIDS. A police officer then appeared and shined a light on them. Defendant jumped out of the car and said that Brooks tried to rob him of $30. Brooks told the officer that she was not robbing him, but that he was raping her. The officer placed defendant in the police car and asked Brooks what had happened. Brooks stated that she did not want to report the sexual assault because of her pimp’s wishes.
Brooks further testified that she had pled guilty to a felony in federal court, and had testified against her pimp in exchange for her plea. She had not yet been sentenced.
Defendant’s Testimony
Defendant testified that Vinnie Brooks approached him at 23rd Avenue and East 14th Street in Oakland, and they agreed to have sex. They drove to another location, and agreed that he would pay her $80 for sexual intercourse and oral copulation. He put on a condom and did not pay her in advance, although she requested that he do so. She began orally copulating him, agreeing to do so before he paid her, when police pulled up and stopped them. He told police he was being robbed because he did not want his wife to know what he was doing. Brooks told the officer she was being raped. He was arrested and released a day or two later.
Other Testimony
Police Officer John Wilson stated that on September 21, 2003, he was patrolling Pardee Lane and directed his spotlight on a silver Ford Explorer SUV. Defendant came running out of the car yelling, “she’s robbing me,” and Brooks yelled, “bullshit,” and that he was “raping” her. He handcuffed them both and took Brooks to the hospital for a physical examination. Brooks told him that she was a prostitute, that defendant had picked her up, and that he then had forced her to orally copulate him. Defendant, when he talked further with Wilson, admitted that he had picked up Brooks for prostitution, and had lied about being robbed because he was in his wife’s car. Defendant was arrested and charged with violating Penal Code section 288a, and was taken to the hospital for an examination.
Criminalist Chani Sentiwany testified that she examined DNA from the inside of a condom recovered in the case, and could not eliminate defendant as the major DNA donor. Likewise, she could not eliminate Vinnie Brooks as a major DNA donor to the outside of the condom.
Additional Testimony by Defendant
Defendant testified that he did not rape anyone, threaten any of the women, use a box cutter, or engage in any physical violence towards them. He did not grab any of the women by the throat or threaten any of them with weapons, nor did he threaten to sodomize any of them.
With regard to a prior conviction for soliciting prostitution, he testified that although he pled guilty, he did not solicit the undercover police officer, and that she was just talking to him. He did not recall agreeing to be on probation for that offense.
DISCUSSION
I. Defendant’s Motions Regarding Representation
Defendant first argues that the trial court committed prejudicial error in its review, or lack of review, of three motions by defendant regarding his representation. We review these motions one at a time, and conclude that there is no ground for reversal.
The trial in this matter began in January 2007. In October 2005, defendant filed a motion for substitution of counsel, which he later withdrew. His defense counsel, William P. Cole, then filed a motion to withdraw from the case based on an irreconcilable conflict with defendant, which was granted in March 2006 by the court, Judge C. Don Clay presiding. On April 12, 2006, attorney Barbara Thomas was appointed to represent defendant. On May 18, 2006, she filed a motion on defendant’s behalf to traverse the warrant and suppress evidence, which was ultimately heard on August 4, 2006.
A. Defendant’s July 2006 Marsden Motion
1. Proceedings Below
On July 7, 2006, defendant mailed a handwritten motion for substitution of counsel to the court, dated July 5, 2006, that was filed on July 11, 2006. Defendant’s motion gave notice of a hearing on July 14, 2006. Defendant supported his motion with a form declaration, for which he checked every available box. These boxes stated that his counsel had failed and/or refused to confer with him concerning preparation of his defense; had failed and/or refused to communicate with him; had refused to subpoena witnesses favorable to his defense and deprived him of testimony that was critical to the defense; had failed and/or refused to perform, or have performed, investigations critical and necessary to his defense; had failed and/or refused to prepare an affirmative defense at his preliminary hearing; had failed and/or refused to secure and present expert witnesses critical to his defense; had failed and/or refused to prepare motions critical to the defense; had failed and/or refused to impeach prosecution witnesses; had failed and/or refused to present evidence at motion/writ hearings critical to his defense; and had failed and/or refused to declare prejudice and/or conflict against him and due to this failure had taken on the role of a surrogate prosecutor against his interest. Defendant also gave a hand written statement, “This attorney has not came [sic] out to see me nor has this attorny [sic] did [sic] any investigation into my case nor will the attorney answer any of my letter [sic] that I have sent to her.”
The court heard defendant’s motion to substitute counsel on July 28, 2006, Judge Clay again presiding. The court asked defendant’s counsel, Thomas, when the motion to suppress that she had filed was scheduled to be heard and counsel replied that it was to be heard the following week. The court then stated, “The court has read and considered [defendant’s] motion and it is denied.” After continuing the matter until the following week, the court stated, “Marsden motion is denied on the papers alone.”
2. Discussion
Defendant argues that the trial court did not provide him with a sufficient hearing regarding his July 2006 motion to substitute counsel because it ruled on his papers alone. We disagree.
The denial of a motion to substitute counsel, what is commonly called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), is reviewed for an abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 604.) When such a motion is made, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (Ibid.) However, “ ‘ “a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” ’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)
The People argue that, since defendant’s trial counsel later explained to the court that this earlier denial was related to previous counsel, and since the court focused on the fact that the following week there was a hearing on a critical motion to suppress filed by new counsel, there was not a “substantial showing” that appellant was likely to receive “constitutionally inadequate representation” without a substitution of counsel at that time, and the court did not abuse its discretion.
We agree with the People that a more comprehensive hearing was unnecessary, though not necessarily for all the reasons they state. It appears that defendant prepared the motion approximately seven weeks after Thomas’s appointment as his counsel, and he plainly directed it at her representation, since he refers to a female counsel in his declaration. However, it is also correct that some of defendant’s declaration statements may well have been directed at the previous counsel’s behavior, such as any inadequate representation at the preliminary hearing. Moreover, the court did focus on the pending motion filed by the defense, thereby implying the conclusion, which we think was within its discretion to reach, that defendant’s counsel’s filing of such a motion demonstrated adequate representation at that point in the proceeding.
Furthermore, based on our independent research, we conclude that “under circumstances in which a defendant has set forth in a ‘self-contained document’ in sufficient detail the basis for his dissatisfaction with appointed counsel,” “a ‘full-blown hearing’ on the alleged inadequate representation is not required.” (People v. Horton (1995) 11 Cal.4th 1068, 1103.) Defendant’s complaints are based on his view that counsel was inadequate because she had not come to see him, conduct an investigation, or respond to his correspondence. However, it was still many months before trial, and counsel had filed an appropriate, pending motion on his behalf. Based on defendant’s complaints and the circumstances, we conclude that defendant fails to establish on appeal that the trial court abused its discretion by ruling on the basis of the papers alone.
B. Defendant’s October 2006 Marsden Motion
1. Proceedings Below
On October 25, 2006, defendant mailed another motion for substitution of counsel to the court. This motion, dated October 21, 2006, noticed the motion for hearing on October 21, 2006 as well. Once more, defendant checked every box on the form declaration, listing the same failures of his counsel as in his July 2006 motion. He also wrote, “I can’t call this attorney on the phone, when I write a letter to this attorney it comes back to me, I have asked this attorney to investigate on this matter and it has not happen [sic] yet.” The record is unclear as to when the court received this motion. The caption page of the motion contains a handwritten date of “10-30-06” and initials that are unclear. The motion was not filed by the court until January 8, 2007. There is no mention in the record of its consideration prior to the commencement of the trial.
On January 9, 2007, the case was assigned to Judge Thomas M. Reardon for jury trial. Starting that day, various pretrial and in limine motions were heard on January 9, 16 and 19, and the trial then commenced. The record of the proceedings, which covers hundreds of pages, does not reflect a request for the substitution of counsel or for a Marsden hearing.
Prior to his April 2007 sentencing hearing, defendant filed a “petition to proceed pro. per.” At the beginning of defendant’s sentencing hearing, on April 20, 2007, the following discussion occurred:
“MS. THOMAS: Your Honor, my client has indicated he had a motion to file for a new trial. I’ve discussed that with the court. The court’s indicated, and I concur, that my client is not the proper person to file the motion. It’s not a motion that I would file on his behalf. My client has indicated that he had a Marsden that had been on file that had not been granted nor heard. He’s indicated that he would like to file—have a Faretta hearing.
“THE COURT: Okay. Let me back up a second. The Marsden was not heard or was denied? I wasn’t aware—there may have been some Marsden in the past, but I don’t recall a Marsden since the matter came to this court.
“MS. THOMAS: No, there was a Marsden that was heard in Department 11, and to my recollection it was summarily denied, if you will. The basis, according to Judge Clay was that—it was that the attorney at the preliminary examination stage was ineffective and Judge Clay articulated that since I had not been that attorney, that it had been a different attorney, that it really didn’t apply.
“THE COURT: I see. Okay.”
After the defense counsel began discussion of the Faretta matter, the following exchange occurred:
“THE COURT: Okay. So the record’s clear, I’m not hearing that a Marsden motion is being made this morning, I’m hearing that a Faretta motion is being made.
“MS. THOMAS: Is that correct? Faretta?
“THE DEFENDANT: Sure.
“MS. THOMAS: Sure.”
The court then accepted defendant’s waiver of his right to counsel, and granted him permission to proceed in propria persona. Thomas was relieved as counsel.
2. Discussion
Defendant’s October 2006 Marsden motion stated that it would be heard on the same date that it was mailed. It would be understandable if this created confusion at the court, which did not file the papers until January 8, 2007. Nonetheless, defendant’s request did constitute written notice to the court that he desired a substitution of counsel. While “there is no obligation to initiate the Marsden inquiry sua sponte,” a trial court’s duty to conduct the inquiry arises “ ‘when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ ” (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) We conclude that the court, having been notified again of defendant’s desire to change counsel, should have considered his motion, however defectively made.
The People argue that this second Marsden motion simply reiterated the same claims defendant had made in his earlier Marsden motion, and points out that, although there were several motions made over three dates in January 2007 prior to trial, defendant did not raise any problems with his attorney during any of these proceedings. The People conclude that although the court did not consider the motion, defendant was not entitled to relief because he did not show that he was not provided with adequate representation or that he had such an irreconcilable conflict that ineffective representation was likely to result.
The People’s arguments, however meritorious they may be regarding the merits of defendant’s motion, fail to grapple with the fact that the court did not consider the motion. We conclude that the court’s failure to consider the motion prior to the sentencing hearing was error.
Defendant argues that “the failure of a trial court to conduct a proper inquiry into the reasons for the request is reversible per se as such a failure precludes the possibility of meaningful appellate review,” relying on People v. Hill (1983) 148 Cal.App.3d 744, 755-756. This is not the correct standard. As the People point out, our Supreme Court has rejected the contention that Marsden error results in a per se reversal, indicating that it is subject to harmless error analysis under the federal “beyond a reasonable doubt” standard. (People v. Chavez (1980) 26 Cal.3d 334, 348-349, citing People v. Marsden, supra, 2 Cal.3d at p. 126; see also People v. Leonard, supra, 78 Cal.App.4th at p. 787 [assuming the trial court did not conduct an adequate Marsden hearing, any error would have been harmless, citing Chavez]; People v. Washington (1994) 27 Cal.App.4th 940, 944 [also finding harmless error, citing Chavez].) While defendant attempts to distinguish the facts of these cases from those of his own, he ignores that the principle of harmless error is embraced in them.
Defendant also argues that the error was not harmless, as defendant made three motions before trial although not a single hearing was held, unlike the circumstances of the cases we cite.
The People argue that any error was harmless because it was cured by defendant’s failure to raise his concerns during pre-trial motion proceedings, because defendant does not attack the competency of his trial counsel on appeal, because substantial evidence supported the jury’s verdict, because defendant does not demonstrate that a new trial motion would have been granted, and because the sentencing judge imposed “a well reasoned sentence” based on defendant’s convictions. The People also argue that “[e]ven if inadvertently overlooked, [defendant] appeared to have abandoned later requests by not requesting new counsel,” and that any abuse of discretion was harmless because a more favorable result was not reasonably probable.
We find beyond a reasonable doubt that the court’s error was harmless for several reasons. First, defendant’s complaints in his October 2006 Marsden motion were essentially reiterations of his previous motion, which the court had rejected a few months before. Furthermore, after the trial, the trial court denied defendant’s amended motion for a new trial, which motion relied heavily on defendant’s allegations of various failures and ineffective assistance provided by his counsel. Therefore, we have no doubt that the trial court would have rejected defendant’s October 2006 Marsden motion if it had properly considered it. Defendant argues that we cannot speculate on the basis of a “silent record” what the court would have determined, citing People v. Winbush (1988) 205 Cal.App.3d 987, 991, but the record before us is not silent.
Furthermore, defendant’s claims in his October 2006 Marsden motion were, essentially, that he was not receiving proper attention from his attorney, and that she was not properly investigating his case as of October 2006. However, the record indicates that by the time of trial defendant did not want to pursue the concerns he had expressed in that motion about his attorney’s representation, because he failed to raise an issue again about his counsel’s representation despite numerous opportunities to do so during the pre-trial motion proceedings. He also raised no issues during trial.
In addition, at the posttrial sentencing hearing in April 2007, when defendant, through his counsel, raised the issue of a pending Marsden motion to the court, he did not offer any correction to his trial counsel’s representation to the court that the motion had been denied because it related to a prior counsel’s representation. Defendant also indicated at that hearing that he was not interested in pursuing that Marsden motion. Defendant’s disregard of his Marsden motion at the hearing indicates the concerns he had expressed in it were not significant to him. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 732 [“the court’s error in failing to consider [the defendant’s] first Marsden motion became harmless when [the defendant] failed to reassert the reasons underlying the motion at the later hearing”].)
We have also reviewed defendant’s allegations of his counsel’s purported ineffective assistance and errors, as stated in his papers seeking a new trial, and the record of the trial proceedings. We do not find merit in defendant’s claims; indeed, his counsel raised many of the evidentiary issues defendant points to in his papers.
Furthermore, the evidence against defendant presented at trial was very strong. By the time of trial, defendant did not dispute that he had been with each woman at the time she claimed he had assaulted her. Each woman presented a compelling account of defendant’s assault. Their accounts were consistent in a number of respects regarding the methods of force defendant had employed. The accounts of police officers and medical personnel who testified were consistent with the women’s accounts as well. There was no evidence that the women were friends, or conspired in any way against defendant. While some of the women at first denied to the police that they were prostitutes, this was understandable given their illegal activity; indeed, in light of this activity, it was more telling that they had complained to police. While there were some discrepancies between some of the women’s trial testimony and their previous accounts, which his counsel brought out at trial, they were relatively minor matters.
On the other hand, defendant was not credible. He acknowledged at trial that he had previously lied to police, not telling them that he had had encounters with Jane Doe 1, Jane Doe 2 and Jane Doe 4, and that he had lied to police when he had told them that Vinnie Brooks was robbing him on the night of their encounter. His explanations that he was confused regarding other inaccurate answers were far from convincing, as was his claim that some of his trial account about his encounter with Jane Doe 2 was missing from a recorded interview with police because he discussed the matter with them when the recorder was off. Likewise, defendant’s suggestions of the various motivations of the women to falsely accuse him of rape, such as that Jane Doe 2 was out to get him because he would not pay her an additional $20 dollars for their consensual encounter, or that Jane Doe 4 was angry with him because he would not drive her to a place where she could get drugs, did not make sense.
For all of these reasons, we conclude beyond a reasonable doubt that any error by the court in failing to consider defendant’s October 2006 Marsden motion was harmless.
In light of our ruling, we do not address the remainder of the parties’ arguments regarding this matter.
C. Defendant’s September 2006 Motion to Be Appointed Co-Couns el
1. Proceedings Below
Defendant mailed a “motion to act as co-counsel” on September 28, 2006, which was filed on October 10, 2006. Defendant sought an order authorizing him to act as co-counsel, with Thomas to serve as lead counsel. He stated as his reasons that “counsel of record has been very ineffective in preparing the case for trial and failing to adequately seek and discuss the defense in the case. Thus, certainly, co-counsel status would serve judicial efficiency because it would elieviate [sic] the need for continuances in order to schedule hearings, such as ‘Marsden,’ claims of ‘ineffective assistance of counsel,’ to search for witnesses through investigations, while defendant could provide those means.” Defendant also contended that there were witnesses helpful to the defense who would only speak to him. Defendant’s motion did not include any notice of this motion, indicate any hearing date, or indicate any service. There is no indication in the record that the court considered this motion.
2. Discussion
Defendant argues that we should treat his September 2006 motion to be appointed as co-counsel as if it also was a Marsden motion. The People argue that defendant confuses the motion with a Marsden motion, but in fact it was not, and that defendant had no right to be appointed co-counsel. Defendant responds that the People’s argument addresses the merits of his motion, but not the court’s failure to consider the motion at all, which defendant argues is reversible per se.
We need not reach the merits of defendant’s motion as suggested by the People. Assuming that defendant’s motion was the equivalent of a Marsden motion, as defendant suggests, we find beyond a reasonable doubt that any error by the trial court in not considering the motion was harmless (People v. Chavez, supra, 26 Cal.3d at pp. 348-349; see also People v. Leonard, supra, 78 Cal.App.4th at p. 787; People v. Washington, supra, 27 Cal.App.4th at p. 944), for virtually the same reasons as those stated in part I.B.2, ante. Defendant’s arguments in support of his motion to be appointed co-counsel were similar to those made in his Marsden motions. Given the trial court’s denial of his first Marsden motion a few months before, and the trial court’s subsequent denial of his amended motion for a new trial, we have no doubt that the trial court would have rejected defendant’s motion to be appointed co-counsel.
Furthermore, defendant’s claims were, essentially, that his attorney was not adequately preparing his case as of September 2006. However, the record indicates that defendant did not want to pursue the concerns he had expressed in that motion about his attorney’s representation by the time of trial, because he failed to raise them again during the pre-trial motion proceedings, despite numerous opportunities to do so.
Furthermore, we find no merit in defendant’s allegations of his counsel’s purported ineffective assistance and errors, and our review of the record indicates that the evidence against defendant presented at trial was very strong.
For all of these reasons, we conclude beyond a reasonable doubt that any error by the court in failing to consider defendant’s September 2006 motion was harmless.
Defendant argues for the first time in his reply brief that his motion to be appointed new counsel is not only per se reversible as a purported Marsden motion, but is also subject to the rule of automatic reversal discussed in People v. Hutton (1986) 187 Cal.App.3d 934, 940-941, which involved a defendant’s motion to be appointed co-counsel. We need not consider this issue further because of defendant’s tardiness. “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) In any event, Hutton did not adopt the per se rule that it discussed, which was from People v. Bigelow (1984) 37 Cal.3d 731, 744. (Hutton, at p. 941.) The rule in Bigelow involved a motion to appoint advisory counsel for a self-represented capital defendant in a capital case. (People v. Doolin (2009) 45 Cal.4th 390, 432, fn. 28.) In our view, it is inapposite to defendant’s motion to be appointed co-counsel, which does not implicate a fundamental constitutional right. (People v. Hamilton (1989) 48 Cal.3d 1142, 1162 [discussing grounds for rejecting a motion to be appointed co-counsel; see also Doolin, at p. 432 & fn. 28 [finding Bigelow inapposite regarding a defendant’s motion for the appointment of a second counsel pursuant to Keenan v. Superior Court (1982) 31 Cal.3d 424, 428-430].) Therefore, we find defendant’s per se reversal argument in his reply brief to be unpersuasive.
II. Expert Opinion Testimony
Defendant argues that the trial court prejudicially erred by allowing expert testimony to be given by Hillary Larkin regarding Jane Doe 4, by Lauri Paolinetti regarding Jane Doe 3, and by Officer Keely regarding Jane Doe 1. His arguments are unpersuasive.
A. Legal Standards
Expert testimony is appropriate if it is “[r]elated to 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).) “ ‘A person is qualified to testify as an expert 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.’ (Evid. Code, § 720, subd. (a).” (People v. Kelly (1976) 17 Cal.3d 24, 39.)
“[T]he courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion.” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) “Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility.” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) However, “[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Expert testimony is admissible even though it encompasses the ultimate issue in the case. (Evid. Code, § 805; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) “This rule, however, does not permit the expert to express any opinion he or she may have.... [¶]... ‘ “[A]dmissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved[.]” ’ ” (Killebrew, at pp. 651-652.)
Indeed, “ ‘[a]s a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.’ ” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “Defendant bears the burden of showing the trial court abused its discretion in allowing this evidence. Such an abuse of discretion must be affirmatively demonstrated and will require reversal only when it clearly appears that a prejudicial abuse of discretion has occurred.” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1227-1228.)
B. The Admissibility of Larkin’s Testimony
1. Proceedings Below
Physician’s Assistant Hillary Larkin examined Jane Doe 4. She testified that she personally performed 30 sexual assault examinations a year, reviewed the files of approximately 350 sexual assault victim examinations each year, and taught forensics and sexual assault to medical residents and postgraduate physicians.
Larkin testified that Jane Doe 4 indicated that she had been sexually penetrated by penis and finger. Larkin found three linear tears to Jane Doe 4’s posterior fourchette that were visible with a colposcope, and which tested as tears when she applied a nucleus stain called toluidine blue. Larkin considered the tears to be “significant” because “[i]n sexual assault victims about 60 percent have some findings of posterior fourchette and, in general that’s not something we see people come to the [emergency room] for other problems or people we are studying for having sexual intercourse.” It was “a very common injury that we see in patients that complain of sexual assault in the emergency department.”
The prosecution offered Larkin as an expert witness regarding whether or not Jane Doe 4’s injuries were “consistent with or inconsistent with nonconsensual intercourse”; voir dire on her expertise followed. Larkin indicated that her training “in the causation of injuries to the posterior fourchette” included her job, her training in pelvic examinations and examinations that “document the aftereffects of the causation,” and her 20 years of conducting pelvic examinations and making objective findings.
Larkin also referred to her research comparing the physical impacts of consensual and nonconsensual intercourse. She had read four papers on the subject, none of which were “perfect studies,” and could not recall particulars about the studies. She also was in the process of completing a study that looked at “consensual intercourse patients versus sexual assault patients,” which had not undergone peer review or been published. Her study included as participants women who were over 18 years of age, were not pregnant, had no known vaginal complaint or venereal disease, had not used a tampon in the past 72 hours, and had been with a single partner for at least the past six months prior to participating in the study. She did not ask participants if they were prostitutes, participants needed to have intercourse with a single person within 72 hours of being examined, and the study did not include persons who had sexual intercourse with strangers.
At the conclusion of the voir dire, the defense argued that Larkin was not qualified to give an expert opinion because her study involved either women engaging in consensual sex who “self-presented” with subjective information or women who presented in emergency rooms, that Larkin offered no training, that she could not present information about the four studies she had read, and that she did not have expertise in anything other than “relating objective findings by... women who present to emergency rooms seeking treatment,” which could also be done by an ordinary layperson. The court overruled the defense objection, and instructed the jury that its decision to permit the testimony was not a judgment about the testimony’s weight or veracity, but was merely a ruling that Larkin was sufficiently qualified to testify to the issue.
Larkin then testified that her examination of Jane Doe 4 was “consistent with the history that the patient gave me.” Jane Doe 4’s tears could have occurred during consensual sex, but “consenting partners will do things not to hurt each other.” Larkin did not ask Jane Doe 4 what she did for a living and had not asked Jane Doe 4 if she had examined herself.
Larkin also testified that the adhering of the toluidine blue indicated that the linear tears she observed were less than 72 hours old, but that she could not indicate any more precisely when the tearing occurred. Larkin testified that Jane Doe 4 had told her that she had had other intercourse within the previous five days, but would not tell Larkin what kind, and whether ejaculation had occurred. Larkin could not tell whether the linear tears were caused by Jane Doe 4’s last sexual partner.
Larkin further testified that linear tears were not common among women for whom she had done pelvic examinations. Over the past 20 years, Larkin had conducted many pelvic exams that did not involve sexual assault, but had seen an injury like this only once. However, such linear tears were found in about 60 percent of the women she and her staff had examined at Highland Hospital who claimed to be sexual assault victims. In the studies Larkin had reviewed, about one in ten women who were not sexually assaulted might have some type of posterior fourchette finding, although less significant than Jane Doe 4’s, and in Larkin’s own study one in 99 such women had posterior fourchette injuries.
Larkin also said that her opinion would have been the same prior to her work on her own study. She was unaware of any studies on the posterior fourchette on prostitutes, and there was not any discussion in the literature regarding sexual contacts between new or unfamiliar partners, rather than long-term or familiar partners.
Defendant subsequently filed a motion to strike Larkin’s testimony and for a mistrial, citing a variety of grounds. At oral argument, the prosecution responded to the motion by arguing that Larkin’s testimony “was well within her training and her experience” and not in a subject area that fell under Kelly-Frye standards. The trial court subsequently denied this motion.
See People v. Kelly, supra, 17 Cal.3d 24, Frye v. United States (D.C. Cir. 1923) 293 F. 1013.)
2. Discussion
Choyce argues that the trial court abused its discretion and committed constitutional error by admitting Larkin’s expert testimony. We conclude that the trial court did not abuse its discretion or commit constitutional error.
“[I]t is settled by ‘a long line of California decisions’ that an expert medical witness is qualified ‘to give an opinion of the cause of a particular injury on the basis of the expert’s deduction from the appearance of the injury itself.’ [Citation.] Such a diagnosis need not be based on certainty, but may be based on probability; the lack of absolute scientific certainty does not deprive the opinion of evidentiary value. [Citation.] Further, a medical diagnosis based on medical literature will not be viewed as a new scientific technique, but simply the development of an opinion from studies of certain types of cases.” (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-1294 [allowing a doctor to give an expert opinion on the cause of an injury to the external genitalia of the victim, a prepubescent female, based on his observations via a colposcope, and informed by his knowledge of the medical literature]; see also People v. Pitts (1990) 223 Cal.App.3d 606, 865 [also involving observations via a colposcope].) Few people could be as qualified as Larkin to render an expert opinion as to whether the linear tears she observed were consistent with the history given to her by Jane Doe 4. As cases such as Mendibles make eminently clear, Larkin’s many years of conducting pelvic examinations on women complaining and not complaining of sexual assault, her work as director of the Highland Hospital’s SART, and her review of relevant medical literature qualified her to render such an expert opinion.
On appeal, defendant concedes that Larkin’s testimony “may not” be subject to the Kelly-Frye test. Instead, he argues that Larkin did not have a sufficient foundation for her opinion pursuant to Evidence Code section 802, and its accompanying Law Revision Commission Comment. Defendant contends that Larkin based her opinion that the linear tears were consistent with Jane Doe 4’s history on studies, about which she could not recall any particulars. Furthermore, given that Larkin testified that a certain percentage of women in consensual, long-term relationships suffered the same genital tears as Jane Doe 4, “there are clearly factors other than forcible rape that cause such injuries.” Defendant believes that this raises a question as to why, but is critical that Larkin “was unable to provide a clear explanation,” and argues that her testimony strongly suggests that she “was seeking to minimize the injury data in her control group by specifically excluding women with multiple or short term partners.” Defendant also is critical of Larkin’s inability to testify about the kinds of tears that occur in someone “who has frequent sex with multiple partners who are strangers and totally unfamiliar with her body,” since, as Larkin acknowledged, none of the studies examined the impacts on prostitutes of such repeated acts. Defendant concludes that, because of these flaws in her testimony, “Larkin’s opinion in this case cannot be considered anything more than speculation and conjecture.” Defendant further argues that his arguments should not be dismissed on the ground that they go to the weight, rather than the admissibility of Larkin’s testimony because she did not meet the minimal evidentiary requirements.
Evidence Code section 802 provides in relevant part that “[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter... upon which it is based,” which the court in its discretion may require. (Evid. Code, § 802.) The Law Revision Comment states: “Although Section 802... provides that a witness may state the basis for his opinion on direct examination, it is clear that, in some cases, a witness is required to do so in order to show that his opinion is applicable to the action before the court. Under existing law, where a witness testifies in the form of opinion not based upon his personal observation, the assumed facts upon which his opinion is based must be stated in order to show that the witness has some basis for forming an intelligent opinion and to permit the trier of fact to determine the applicability of the opinion in light of the existence or nonexistence of such facts.... Evidence Code Section 802... is based essentially on the requirement that all evidence must be shown to be applicable—or relevant—to the action.”
Defendant’s arguments are meritless. Larkin indicated that her opinion was based primarily on her years of conducting pelvic examinations and her review of SART examination files. Defendant ignores these bases for Larkin’s testimony altogether. Regardless of any issues about Larkin’s testimony on the literature she had reviewed, or the adequacy of her own study as a basis for her expert testimony, Larkin’s extensive experience was an ample basis for her ability to provide an expert opinion on whether or not Jane Doe 4’s injuries were consistent with or inconsistent with nonconsensual intercourse.
Thus, defendant’s challenges to Larkin’s testimony based on Larkin’s incomplete testimony about the studies she had reviewed, and the questions defendant raises about Larkin’s own study, are red herrings. Defendant does not explain why Larkin could not provide an expert opinion based on her extensive experience—including her own research. “Such a diagnosis need not be based on certainty, but may be based on probability; the lack of absolute scientific certainty does not deprive the opinion of evidentiary value.” (People v. Mendibles, supra, 199 Cal.App.3d. at p. 1293.) The numerous questions raised by defendant about Larkin’s opinion with regard to a working prostitute, however speculative defendant’s questions may be, were challenges to the weight of Larkin’s testimony. Defendant does not provide any persuasive argument why the trial court abused its discretion in allowing Larkin’s expert opinion.
Defendant also argues that the court “committed constitutional error by allowing an opinion that was tantamount to an opinion on [defendant’s] guilt and thus invaded the jury’s province to determine the critical elements of the charges.” The People argue that defendant has forfeited this claim by failing to raise it below, and we agree. (E.g., People v. Alvarez (1996) 14 Cal.4th 155, 186 [“ ‘ “questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal” ’ ”].)
Assuming no forfeit occurred, the trial court did not commit any constitutional error because Larkin did not opine about defendant’s guilt. She merely testified that the injuries she observed were consistent with the history recounted by Jane Doe 4. Indeed, Larkin could not indicate when the tearing occurred, other than within the last 72 hours, and could not tell whether the linear tears were caused by Jane Doe 4’s last sexual partner.
Given our holding, we do not address the parties’ arguments regarding whether or not the purported error by the trial court would have been harmless.
C. The Admissibility of Paolinetti’s Testimony
1. Proceedings Below
Physician’s Assistant Lauri Paolinetti examined Jane Doe 3. Her general qualifications are not questioned by defendant; Paolinetti testified that she graduated in 1987 from the Stanford University/Foothill College Physician Assistant Program in 1987, obtained a Master’s degree from the University of Nebraska, and received training to become a sexual assault examiner in 1991. Prior to 2001, she had conducted approximately 200 sexual assault examinations.
Paolinetti testified that she used a Wood’s lamp to examine Jane Doe 3, and that her examination showed the presence of semen on Jane Doe 3’s left and inner right thighs, and above her pubic hairs. She conducted a pelvic examination, using a colposcope, and applied toluidine blue. Her findings were “unremarkable,” revealing no evidence of edema, abrasions, tears, or other injuries, although she testified that there are not always injuries associated with nonconsensual sex.
On appeal, defendant challenges the court’s decision to allow Paolinetti to testify that, based on the semen she found on Jane Doe 3’s abdomen, she thought her findings were consistent with Jane Doe 3’s stated history that “the person attacked her.” Paolinetti stated further: “Part of the history was that there was an ejaculation on the abdomen, and I actually examined that part and there was found to be dried secretions there. So the patient said that, I found something there, and the exam was consistent with that history as well. We do not—sexual assault victims, not everyone has injury, and so that also makes it consistent.”
The defense objected to Paolinetti’s “consistency” testimony on the grounds that she was not qualified to render such an opinion, that she was essentially being asked to qualify Jane Doe 3’s veracity and opine about defendant’s guilt, and that Paolinetti’s testimony was improper hearsay. The trial court overruled these objections.
2. Discussion
Defendant makes several arguments as to why the court committed prejudicial error in allowing Paolinetti’s “consistency” testimony, none of which are persuasive.
The parties debate whether Paolinetti testified as an expert witness, given that she was not formally qualified and presented as such, but was examined on her general qualifications without objection from the defense and testified as described herein. We consider it unnecessary to resolve this question, and analyze defendant’s arguments as presented without determining it.
First, defendant argues that while a medical expert may testify that the absence of genital trauma is not necessarily inconsistent with nonconsensual intercourse, a medical expert is not necessarily allowed to opine that an examination is consistent with a patient’s history of assault in the absence of such trauma, relying primarily on People v. Rowland (1992) 4 Cal.4th 238, 266-267. However, Rowland simply makes clear that a court may allow a medical expert to opine about his or her observations based upon a physical examination, without the need to consider the Kelly-Frye standards. (Ibid.) Nothing in Rowland limits the nature of these observations as defendant suggests.
Defendant also argues that, “given that Jane Doe 3’s exam was documented as ‘unremarkable,’ and yielded ‘no physical findings,’ there was no foundation” upon which Paolinetti could base her challenged testimony. Defendant ignores that Paolinetti explained that her testimony was based on her discovery of semen on Jane Doe 3’s abdomen, however. This was sufficient foundation to allow her testimony, even if defendant could argue that Paolinetti’s lack of physical findings undermined her conclusion.
Defendant also argues that Paolinetti’s testimony was a “veiled attempt to bolster the complaining witness’ credibility by relying upon hearsay statements from the witness herself,” thereby “usurp[ing] the jury’s exclusive right and duty to determine the credibility of trial witnesses.” This argument is also meritless. Paolinetti was not asked, and did not state, her view of Jane Doe 3’s credibility, and her testimony was not offered to establish the truthfulness of Jane Doe’s account. People v. Coffman and Marlow (2004) 34 Cal.4th 1, cited by defendant, is inapposite because the doctor testifying in that case stated that he thought the victim’s claims of abuse were true. (Id. at p. 82.)
Finally, defendant argues that Paolinetti, “by testifying in a manner that was clearly supportive of Jane Doe 3’s position... provided an impermissible—and unconstitutional—opinion on [defendant’s] guilt.” Again, the record does not provide support for this argument. Paolinetti fully explained her findings, including the absence of physical injuries, which did not necessarily “support” Jane Doe 3’s position. She did not opine at all about defendant’s guilt. Once more, the cases cited by defendant are inapposite. For example, in People v. Torres (1995) 33 Cal.App.4th 37, the court held that an expert cannot opine about the defendant’s guilt (id. at pp. 46-47); Paolinetti did not provide any such testimony.
Given our conclusion, we do not address the parties’ error analyses.
D. The Admissibility of Officer Keely’s Testimony
1. Proceedings Below
As we have discussed, Keely testified that he talked with Jane Doe 1 in her apartment on the night of the incident, who told him she had been sexually assaulted earlier that evening. When the prosecutor asked him to describe Jane Doe 1’s “emotional state while you were talking to her,” the defense objected that this called for speculation and conclusion, which objections the court overruled. Keely testified that Jane Doe 1 “was crying, she was upset, obviously distraught. I spoke with her for quite some time and her emotions were the same throughout. She was constantly bending over and covering herself. She was partially dressed so she was covering—doubled over, quite consistent with someone who went through a traumatic event.” The defense moved to strike this testimony as a conclusion, which the court denied.
On cross-examination, the defense asked Keely what physical factors about Jane Doe 1 made him think she was upset. Among other things, Keely stated: “She was bending over crossing her arms over, holding herself more like a fetal-type position or something, something that I’ve seen like people that are—want to cover themselves up or something like that, especially after a violent crime, I see that a lot. [¶] She wasn’t open with her shoulders out speaking so you could obviously tell that she was very upset. And her voice was not—it was down, it was—she didn’t want to speak, you know, quick and high. Very consistent with somebody that had gone through a traumatic event.”
The defense moved to strike Keely’s testimony that what he observed was very consistent with someone who had been through a traumatic event “as speculation and expert testimony which this officer is not qualified to render.” In response to the court’s own questions, Keely indicated that he had seen people go through traumatic events, and that he had been an officer in Oakland for over seven years. The court then overruled the defense’s objections.
2. Discussion
Defendant argues that the court committed prejudicial error by twice permitting Keely to testify, in the form of inadmissible expert opinion, that the physical factors he observed in Jane Doe 1 were consistent with someone who had experienced a “traumatic event.” We reject defendant’s argument because we conclude that, if the court made any error, it was undoubtedly harmless in light of the ample evidence of Jane Doe 1’s physical injuries.
Defendant argues that the trial court erred by allowing Keely’s “traumatic event” testimony because it went beyond Keely’s lay observations about Jane Doe 1’s external behavior to render an expert opinion on the cause of that behavior. Defendant asserts that Keely’s experience as a police officer did not qualify him to render this opinion, “[f]or while Officer Kelly may have observed people who were crying or upset while performing his duties as a police officer, the conclusion that someone had in fact been traumatized, was not an opinion he was qualified to render.” According to defendant, “Keely’s testimony... was essentially a conclusion that Jane Doe 1’s allegations were credible and tantamount to an opinion on [defendant’s] guilt.”
Defendant also complains that Keely was allowed to operate “under a problematic dual role: He was both the responding officer in this case and, by virtue of the court’s ruling on his opinion statements, a court sanctioned expert.” Defendant concludes that, because the “critical question... was whether [Jane Doe 1] was upset because an assault was in fact perpetrated upon her or whether—as [defendant] testified—because he left her without consummating the transaction,” “when Officer Keely lent his weight and credibility to Jane Doe 1’s version of what transpired by relying on his professional experience as a basis for so concluding, he not only exceeded the scope of his experience as an officer... but usurped the jury’s role to determine the critical facts in dispute.” Defendant cites various case law in support of his argument, which we have reviewed as well.
There are several problems with defendant’s arguments. Contrary to defendant’s assertion, Keely did testify in response to the court’s questioning that he had seen people go through “traumatic events,” not just people who appeared upset. As we have indicated, Keely also testified that Jane Doe 1’s physical demeanor was “something that I’ve seen like people that are—want to cover themselves up or something like that, especially after a violent crime, I see that a lot.” The defense did not object at trial to this portion of his testimony, and defendant does not challenge it on appeal. Furthermore, Keely did not differentiate between emotional and physical trauma, nor did he state or imply whether or not he believed Jane Doe 1’s story. He did not refer at all to rape, and gave no indication that he believed defendant was the cause of any trauma.
Nonetheless, we need not determine whether or not the court improperly allowed Keely’s “traumatic event” testimony because, assuming it was an error, the error was undoubtedly harmless, whether evaluated under federal or state standards. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Keely’s “traumatic event” testimony was relevant only to whether or not Jane Doe’s appearance and demeanor was the result of having experienced a “traumatic event”—which could have either been emotional or physical in the absence of any further definition of the term. There was overwhelming evidence that Jane Doe 1 had experienced something traumatic, whatever Keely’s testimony. Defendant himself testified that Jane Doe 1 was “hysterical” when he left her. Keely testified that Jane Doe 1 was “upset, obviously distraught,” that she was “bending over crossing her arms over, holding herself more like a fetal-type position or something, something that I’ve seen like people that are—want to cover themselves up or something like that, especially after a violent crime.”
Most importantly, there was compelling, undisputed evidence that Jane Doe 1 hadrecently experienced a physically traumatic event based on the undisputed evidence of her physical injuries. Evidence Technician Julie Jaecksch, who photographed Jane Doe 1 on the evening of the incident, testified that Jane Doe 1 had an abrasion on her right check and a small lump on her forehead, possibly a burst blood vessel in her eye, and a small knee abrasion. Jaecksch photographed welts, scratches and abrasions on Jane Doe 1, a yellow rope cut at its knots, and a belt. Her photographs were admitted into evidence.
Defendant argues that the trial court’s purported error was prejudicial because the case against defendant was not overwhelming. Defendant points out that Jane Doe 1 admitted that she at first denied she was a prostitute, refused to go to the hospital for a sexual assault examination despite knowing the exam could find microscopic bits of evidence, at first testified that defendant attempted to spray her with pepper spray rather than that he did spray her, and admitted that she had previously known Jane Doe 2; furthermore, the jury asked the court what would happen if they were unable to reach a verdict on a special finding or enhancement. These arguments attacking Jane Doe 1’s credibility are not particularly persuasive. We do not agree that this was a close case. Regardless, however, defendant’s arguments relate only to Jane Doe 1’s testimony, not to that of Jaecksch, Sentiwany, Keely, or to Jaecksch’s photographs. Keely’s challenged “traumatic event” testimony was undoubtedly harmless in light of the overwhelming evidence of Jane Doe 1’s physical injuries. The jury’s question to the court did not indicate doubt that Jane Doe 1 had experienced some kind of trauma.
III. Jury Instruction
Defendant argues that the trial court also committed prejudicial error when it instructed the jury with CALCRIM No. 372, regarding defendant’s flight from the CHP after Jane Doe 4 and her boyfriend pursued him by car on June 22, 2004. We reject most of defendant’s arguments of error, but find that the trial court provided an incomplete instruction, which error was harmless.
A. Proceedings Below
Jane Doe testified that about two months after defendant assaulted her, she was in a car with her boyfriend about 9:00 p.m. when she spotted defendant driving his car down International Boulevard in Oakland. Jane Doe 4’s boyfriend, who “wanted to kill” defendant, began following him. As they followed defendant, she called the police and was put through to the CHP. When asked if she told the police that they “were following the guy that had raped you,” she replied, “I was on the phone with them the whole time.” At some point, defendant began throwing things out of his sunroof at the couple, and they continued to follow him onto Highway 580. Jane Doe 4 “felt like” she saw defendant point a gun at her.
Jane Doe 4 further testified that after they had chased defendant for about 30 minutes, defendant pulled over to the side of the freeway, got out of his car, and began “charging” at her car. They backed up their car because it looked like he was going “to knock our car over.... He looked so big charging at my car[.]” She indicated that after defendant got out of his car about five CHP vehicles passed by and then returned to the scene based on Jane Doe 4’s instructions to the CHP dispatcher. After the CHP officers arrived, defendant “tried to run and hop over a gate,” and an officer “attacked him.” Defendant was then taken into custody. Two or three hours later, Oakland police arrived and Jane Doe 4 was brought over to identify defendant.
Police Officer Ross Tisdell testified that he was dispatched to the scene about 2:30 a.m. on June 22, 2004, and was told by Jane Doe 4 that she had been following a vehicle with someone who had previously assaulted her. Tisdell observed Jane Doe 4 confirm her identification of defendant as her assailant to CHP officers. No CHP officer testified at trial.
B. Discussion
Penal Code section 1127c provides in relevant part: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.” (Pen. Code, § 1127c.)
Based on Penal Code section 1127c, “[t]here is a sua sponte duty on the part of trial judges to give a jury instruction on the effects of flight as it relates to a defendant in a criminal case.” (People v. Henderson (2003) 110 Cal.App.4th 737, 742.) Accordingly, CALCRIM No. 372 states: “If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself.”
“Errors in jury instructions are questions of law, which we review de novo.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) “ ‘ “An instruction on flight is properly given if the jury could reasonably infer that the defendant’s flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven,” ’ ” but does require “ ‘ “a purpose to avoid being observed or arrested.” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 522.)
1. Defendant’s Claims of Error
Defendant argues that the trial court erred in providing the flight instruction because defendant’s flight was neither immediately after the crime nor in response to an accusation, and that the giving of the flight instruction to the jury created an impermissible inference in violation of defendant’s state and federal rights to due process and a fair trial. We review his arguments one at a time.
First, defendant acknowledges that it has long been held that Penal Code section 1127c was enacted “ ‘to abolish the rule stated in many early cases that the jury could not be instructed to consider flight as evidence of guilt unless it had been proved that the fleeing suspect had previously learned that he was accused of the commission of a particular crime.’ ” (People v. Mason (1991) 52 Cal.3d 909, 941, fn. 11, quoting People v. Hill (1967) 67 Cal.2d 105, 120-121.) Nonetheless, defendant, emphasizing the reference to “proved” in the quote, argues that this “should not be interpreted to mean that a consciousness of guilt instruction is warranted when a defendant flees while wholly unaware that he is under suspicion of the charged crime,” contending that this goes against the plain meaning of section 1127c, and would create an impermissible inference in violation of the federal Constitution. According to defendant, “the Legislature set out specific criteria which requires that a defendant’s flight be connected to the charged offense in order to warrant the instruction. This criteria ensures that a jury is not given permission to infer a guilty conscience on the part of a defendant when there are no relevant facts to support the inference. For it cannot be said that one who flees neither immediately after, nor in response to an accusation to the charged offense, is more likely than not to be acting out of a consciousness of guilt regarding that offense.”
Defendant bases his argument largely on People v. Newton (1966) 244 Cal.App.2d 82, in which the appellate court reversed defendant’s conviction. The appellate court did so in part because it found that the trial court improperly admitted evidence of the circumstances of defendant’s arrest several days after the crime occurred, including his attempted flight from police for reasons unrelated to the crime for which he was convicted. (Id. at p. 83-85.) The court stated, “In order for flight to have evidentiary force, it must take place under circumstances such that it appears that defendant knew that he was charged with the crime involved and that he was attempting to avoid apprehension for that offense.” (Id. at p. 85.) It noted, however, that in the case at hand “there was no showing, and no attempt to show, that defendant had even a suspicion that he was suspected of the crimes herein involved.” (Ibid.)
Of course, People v. Mason, supra, 52 Cal.3d at page 941, controls over People v. Newton, supra, 244 Cal.App.2d at page 85. Regardless, there was evidence presented in the present case to satisfy the standards discussed in both cases. Specifically, Jane Doe 4’s testimony indicates that, as she and her boyfriend followed defendant, she did accuse him of raping her to police over the phone. Second, there was evidence which indicated that defendant did have a reason to suspect that police were confronting him because he was suspected of raping Jane Doe 4, as Jane Doe 4’s testimony indicated that defendant saw her in the course of the chase, given that it appeared to her that defendant pointed a gun at her, that he threw things at their car from his sunroof, and that he charged up so close to their car that Jane Doe 4 became scared and Jane Doe 4’s boyfriend backed the car up. Defendant ignores all of this evidence.
Second, defendant argues that the holding of our Supreme Court, in People v. Pensinger (1991) 52 Cal.3d 1210, “strongly suggests that while a defendant need not know he has been accused of a crime if he is caught fleeing immediately after the commission of a crime..., such knowledge would be constitutionally required if he was not caught fleeing immediately after the crime.... Accordingly, a flight not occurring immediately after a crime must contain some evidence or indication that defendant was aware of having been accused of the crime.” We do not find support for defendant’s argument in Pensinger, which, as defendant concedes, favorably cited the same passage in People v. Hill, supra, 67 Cal.2d at pages 120-121, that we have quoted herein. Indeed, in People v. Mason, supra, 52 Cal.3d 909, our Supreme Court rejected defendant’s approach, stating that “[c]ommon sense... suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as multiple murders after only a few weeks. Nor do our decisions create inflexible rules about the required proximity between crime and flight. Instead, the facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (Id. at p. 941, citing People v. Santo (1954) 43 Cal.2d 319 [holding that the trial court properly admitted evidence of flight occurring more than a month after the charged murder because the facts fairly supported that inference].)
Third, defendant argues that the trial court erred in providing its specific instruction because the court failed to include the narrowing criteria contained in CALCRIM No. 372, i.e., “If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or]after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. (CALCRIM No. 372, italics added.) According to defendant, the court, by doing so, was “thereby modifying the language to conform to the actual evidence. However, in so doing, the trial court gave the jury express permission to consider a flight wholly unrelated to the instant charges as evidence of guilt, thereby committing error under both state and federal law.” We agree that the trial court should have included the second criterion omitted, i.e., “after he was accused of committing the crime,” as this provision is also contained in the statutory authority for the instruction, Penal Code section 1127c. Also, the Bench Notes of CALCRIM No. 372 state that “[i]f the defendant’s flight did not occur immediately after the crime was committed, the trial court should give the second option in the parenthetical,” relying on People v. Carrera (1989) 49 Cal.3d 291, 313 (involving flight from county jail some time after the commission of the crime). However, as we discuss further, this error was harmless.
2. Any Error Was Harmless
Any error by the court was undoubtedly harmless under either the federal or state standards for error (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836), all of which are urged by defendant to apply in this case.
First, the court did not instruct the jury that flight had occurred; rather, both the existence and significance of any flight or attempted flight were left to the jury to determine. (See People v. Crandell (1988) 46 Cal.3d 833, 870 [the error was “manifestly harmless” in part because “both the existence and significance of flight were left to the jury”].) The court also instructed the jury that it was to review the evidence and determine for itself “what the facts are,” and that “[s]ome of these instructions may not apply depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you’ve decided what the facts are, follow the instructions that do apply to the facts as you find them.” The “flight” instruction itself stressed to the jury that even if there was evidence of flight or attempted flight from which it could infer a consciousness of guilt, this alone was not sufficient evidence to convict defendant. (See People v. Henderson (2003) 110 Cal.App.4th 737, 742 [noting that the predecessor CALJIC instruction “serves the dual purpose of permitting an inference of guilt, but at the same time provides the defendant with some protection against misuse of such evidence”].)
Second, the prosecutor’s closing argument did not focus at all on defendant’s attempted flight. (See People v. Crandell, supra, 46 Cal.3d at p. 870 [error also “manifestly harmless” because “[t]he instruction did not figure in the prosecutor’s closing argument”].) The prosecutor did not refer to consciousness of guilt based on flight or on any desire by defendant to avoid detection by the police.
Third, as we have discussed, there was significant evidence that defendant attempted to flee the police out of a consciousness of guilt for his assault against Jane Doe 4, after she had accused him of the crime to police and after he saw her chasing him.
Fourth, as we have also discussed, overall there was a strong case against defendant.
For all of these reasons, any error by the court in providing the “flight” instruction to the jury was harmless beyond a reasonable doubt, and it is not reasonably probable that defendant would have received a more favorable verdict if no error had occurred.
IV. Cumulative Prejudice
Finally, defendant argues that the cumulative prejudicial effect of the various errors he alleges deprived him of his federal due process right to a fair trial, requiring reversal. We do not agree.
Our Supreme Court has stated that “[l]engthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.)
Furthermore, the Ninth Circuit has stated that “[t]he Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair.” (Parle v. Runnels (2007) 505 F.3d 922, 927, citing Chambers v. Mississippi (1973) 410 U.S. 284-302-303.)
Defendant’s claim of cumulative prejudicial error is based on all of his claims of error, most of which we have rejected. The errors regarding defendant’s second Marsden motion and, if it was error, regarding his motion to be appointed co-counsel (which we only assumed was a Marsden motion) were unquestionably harmless for the reasons we have stated, and the court considered and properly exercised its discretion regarding virtually the same concerns in ruling on the first Marsden motion. The court’s providing of an incomplete jury instruction on flight was also harmless, as we have stated. These errors showed no pattern of unfairness, did not build on each other, were relatively minor, and remain insignificant when considered cumulatively. The trial was long and the facts were not close. Therefore, we find no cumulative prejudicial error. Although we did not determine that admitting Keely’s testimony constituted error, assuming that it did, our analysis is the same.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.