Opinion
D057155 Super. Ct. No. SCS224410
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS ANTHONY DIAZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed.
A jury convicted Thomas Anthony Diaz of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)); attempted forcible rape (§ 261, subd. (a)(2)); sexual penetration by foreign object (§ 289, subd. (a)); assault with intent to commit rape (§ 220, subd. (a)); sexual battery by restraint (243.4, subd. (a)); and false imprisonment by violence (§§ 236, 237, subd. (a).) The court sentenced him to 16 years in prison.
All statutory references are to the Penal Code unless otherwise stated.
Diaz contends his right to a fair trial under the Fourteenth Amendment of the federal Constitution was violated because the prosecutor impermissibly vouched for the victim's veracity during closing arguments. He further contends the trial court prejudicially erred by permitting the Sexual Assault Response Team (SART) nurse to testify whether the victim's reported injuries were consistent with the nurse's evaluation because the topic was beyond the nurse's expertise and the matter was for the jury to decide. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Diaz does not challenge the sufficiency of the evidence to sustain his conviction; therefore, we summarily recite the operative facts in the light most favorable to the judgment. (People v. Osband (1996) 13 Cal.4th 622, 690; People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
J.D.'s Testimony
In November 2008, J.D. visited her friend in San Diego and they were at a restaurant and bar, where Diaz started a conversation with them and invited J.D. to go dancing in downtown San Diego. Diaz took her to his parent's Chula Vista home and he picked up a different car. Instead of returning downtown, he invited her to a nearby restaurant, where they danced. Afterwards, he suggested he would drive nearby to the gym where he trains, for him to sober up.
After he showed her around the warehouse where the gym is located, he immediately ordered her to take off her shirt, threatening to rip it off. She was scared and protested, but complied. She pleaded with him, saying she would rather he killed her than hurt her. She tried to get her cell phone to call her friend, but he stopped her and moved her purse out of reach.
He inserted two of his fingers into her vagina. She told him to stop because he was hurting her. She tried to run away again, but he stopped her. He got on top of her and tried to put his penis in her vagina, but he was unable to keep his erection and she foiled him by keeping her hands between her legs.
He moved her head toward his penis, indicating he wanted oral sex and she, out of fear, licked it. He got back on top of her and tried to penetrate her, and she hit him in the head with a hammer and his forehead started bleeding. She got dressed and dialed her friend's telephone number, hoping she would hear the commotion and send help.
Shortly afterwards, when Diaz was distracted, J.D. ran out of the warehouse and reached a nearby gas station convenience store. She cried and asked for help, and the attendant let her in, locked the door and called 911. J.D. saw Diaz outside the door trying to enter the convenience store.
Other Prosecution Witnesses
The convenience store attendant testified J.D. was bloody, hysterical, crying loudly, and looked very scared when she arrived there at approximately 2:45 a.m. A recording of the attendant's 911 telephone call was played for the jury. A convenience store surveillance video recording was played for the jury. The video captured J.D. entering the store and later Diaz, who attempted to enter the main door, walked over to a side window, left and returned minutes later in a car.
That morning, the police took J.D. to an office for an examination by SART nurse Danella Kawachi. She testified she had been a SART nurse since 2000, and since then had performed between 800 and 1000 SART examinations. Kawachi testified J.D. had "multiple bruises to her knees, her thighs, her left wrist, her left arm, and her right shoulder . . . Most were purplish in color." Besides seeing lacerations on the face of J.D.'s cervix, Kawachi also saw a laceration and an abrasion on the underneath or neck of J.D.'s cervix. Kawachi filled out a form report by checking a box indicating that her "conclusions, visible findings, and injuries noted" were "consistent with [the] history" J.D. had reported.
During Kawachi's direct examination, the following exchange took place:
"[Prosecutor]: Could the abrasions and the one laceration you saw on [J.D.] have been caused by [sexually transmitted diseases] or yeast infections?
"[Kawachi]: It is a possibility. I didn't see anything on the external genital that would have me question that, and I was not given that history.
"[Prosecutor]: Are the injuries that you did see on [J.D.] consistent with digital penetration she had stated that had occurred?
"[Kawachi]: Yes.
"[Defense counsel]: Objection; calls for legal conclusion. Motion to strike.
"The court: Overruled."
Kawachi testified in response to hypotheticals that the type of cervical injuries J.D. experienced could have been caused by a sex toy, a speculum, or masturbation.
J.D.'s friend testified that at approximately 2:15 a.m., she received a telephone call from J.D. and heard rustling and J.D. screaming loudly, "leave me alone and just take me home." The call ended abruptly. The friend called back, but J.D. did not pick up. More than 20 minutes later, J.D. telephoned and said Diaz had tried to rape her and she hit him with a hammer. That morning, J.D. returned to her friend's house and was shaking and crying, and her eyes were puffy from so much crying.
Chula Vista Police Officer Matthew Coulson testified that around 2:48 a.m., he received a radio call and within minutes responded to the convenience store. He saw J.D. crying, screaming and upset, with blood on her arm. Later that day, Diaz went to the police station and in an interview volunteered his version of events. Diaz said that while he was having sex with J.D at the warehouse, J.D.'s boyfriend had hit him with a hammer.
Chula Vista Police Detective Nathan Hall testified that later that day he administered Miranda warnings to Diaz, who repeated his story that J.D.'s boyfriend had hit him with a hammer and left without confrontation. Diaz responded to Detective Hall's expression of disbelief by saying, "I know it's hard to believe, but that's what happened."
Miranda v. Arizona (1966) 384 U.S. 436.
One of Diaz's former wives testified regarding his uncharged act of aggression that occurred in June 2002, after she had separated from him. He went to her mother's house seeking to reunite with her, but she refused. He forced himself on her, touched her breasts and buttocks and tried to kiss her. She struggled to push him away. He ripped off her shirt. She called the police.
Defense Case
Diaz denied the charges against him and J.D.'s supporting account, and maintained they had consensual sex in the warehouse. He testified that because he could not keep an erection, J.D. laughed at him and he, in turn, criticized her weight. He admitted she hit him with a hammer, and that his contrary statements to the police were lies.
Registered nurse Cari Caruso testified in response to hypotheticals that the abrasion and laceration on J.D.'s cervix could have been caused by a finger, a sex toy, a speculum, or a sexually transmitted illness. On cross-examination, she responded to a question of whether, in examining rape victims, she would consider the victim's report as being consistent or inconsistent with the victim's injuries: "Well, consistent and inconsistent is a kind of a buzz word. Something that's consistent with one thing could also be consistent with another. So that kind of verbiage has a tendency to sound a little biased in favor of the patient's history. My job is to be scientific and objective. So I'll document them, but I'm not going to corroborate them with anything."
DISCUSSION
I.
Diaz contends the prosecutor impermissibly vouched for J.D.'s credibility during arguments to the jury.
Background
Diaz's attorney stated in closing argument: "[Diaz's] testimony was much more precise and to the point than [J.D., who] hesitated a lot while testifying. Do you remember from last week she would look up in the air? She would pause for long periods of time. Mr. Diaz did not do that. And there's something you can look at in the jury instructions to decide whether a witness is telling the truth or not. You look at their demeanor. And that's obviously something you have to look at when evaluating the witness's credibility."
The jury was instructed with CALCRIM No. 226 regarding how to assess a witness's credibility including by considering, "What was the witness's behavior while testifying?"
The prosecutor argued to the jury in rebuttal, "You were able to observe how [J.D.] answered the questions and the way she answered the questions. She was consistent. Her testimony was unrehearsed. [¶] I don't know if you can recall, but when she was on the stand, if she couldn't remember something, she looked up to the right. That's what people typically do when they're trying to remember something and they're telling the truth. They look up and to the right."
Defense counsel immediately objected that the argument was improper, but the trial court ruled, "This is argument, ladies and gentlemen. I'm going to allow that argument." The prosecutor continued, "[J.D.] wanted to be accurate. She wanted to think about what happened and when it happened and get all the facts out as best as she could. If she didn't — wasn't able to answer the question right away, it was because you could see her thinking and actually going through what happened and recreating the events in her head."
Diaz moved for new trial under section 1181, subdivision (5), on grounds of prosecutorial misconduct because the prosecutor assertedly vouched for J.D. in closing argument. The trial court noted the prosecutor might have selected the wrong words, but denied the motion, ruling: "I don't believe it's citing facts outside the record. It was a request that the jurors do what I directed them to do, which was assess behavior. [The prosecutor] drew the conclusion that she wanted the jurors to draw."
Applicable Law
" 'A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citation.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her comments cannot be characterized as improper vouching.' " (People v. Ward (2005) 36 Cal.4th 186, 215.)
" ' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom" ' " [Citation.] "[S]o long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching." (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.)
When a reviewing court finds that misconduct infected a trial with such unfairness as to make the defendant's resulting conviction a denial of due process, the misconduct is an error of constitutional magnitude compelling reversal of the defendant's conviction. (People v. Morales (2001) 25 Cal.4th 34, 44.) If a reviewing court finds that misconduct merely exposed jurors to some form of improper evidentiary matter, the error is reviewed under the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818. (People v. Frye (1998) 18 Cal.4th 894, 976, disapproved on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Contrary to Diaz's claim, it is highly unlikely the jury took the prosecutor's statement as vouching for J.D.'s credibility, or an indication the prosecutor had some specialized knowledge, not presented at trial, about how to evaluate a witness's body language for signs of truth-telling. Rather, considered in context, the prosecutor's argument, "That's what people typically do when they're trying to remember something and they're telling the truth. They look up and to the right," responded to Diaz's attack on J.D.'s credibility. The prosecutor's comment falls within the wide latitude permitted for closing argument, and she offered her view of the way the jury should interpret J.D.'s credibility.
The jury is presumed to have followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Immediately following defense counsel's objection, the court told the jury the prosecutor was making an argument, the implication being this was not evidence. The court subsequently instructed the jury: "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." (CALCRIM No. 222.)
It is not reasonably probable that Diaz would have obtained a more favorable verdict if the trial court had sustained his objection; therefore, any error by the court in overruling Diaz's objection to the prosecutor's closing argument was harmless under Watson. Contrary to Diaz's assertion, this case was not reduced to being simply a credibility contest between J.D. and him. Instead, strong evidence other than their conflicting testimony supported the jury's verdict. J.D.'s friend testified that on the telephone she could hear J.D. screaming to Diaz to leave her alone. Further, the convenience store attendant testified regarding J.D.'s hysterical state when she arrived there. The surveillance tape also showed J.D.'s arrival. Police testified regarding J.D.'s hysterical state when they responded within minutes after the 911 call. The jury could reasonably infer J. D. would not have been so emotionally distraught had she engaged in consensual sex with Diaz. The jury also was aware of Diaz's uncharged crime of sexual battery against his ex-wife.
The jury was instructed in the language of CALCRIM No. 1191 regarding how to evaluate testimony about Diaz's uncharged crime.
We also note that the trial court instructed the jury that a defendant's lies may evince a consciousness of guilt. (CALCRIM No. 362.) Another instruction told the jury that in evaluating a witness's credibility: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (CALCRIM No. 226.) In light of the entire record, and taking into account Diaz's denial that he committed the crimes, the jury had abundant basis for the convictions.
Diaz's reliance on Quercia v. United States (1933) 289 U.S. 466, 471-472 is unavailing. In that case, the trial judge told the jury that in his opinion the defendant lied as evidenced by his wiping his hands during his testimony. (Id. at p. 468.) The United States Supreme Court ruled, "[T]he trial judge did not analyze the evidence; he added to it, and he based his instruction upon his addition. Dealing with a mere mannerism of the accused in giving his testimony, the judge put his own experience, with all the weight that could be attached to it, in the scale against the accused." (Id. at p. 471.)
Here, by contrast, the trial judge did not attack the defendant's credibility. Rather, the prosecutor, availing herself of the time properly reserved for arguments, responded directly to the defense's attack on J.D.'s credibility. The prosecutor's fleeting reference to how a witness holds her head when telling the truth did not prejudice Diaz because the trial court instructed the jury that it alone must judge the witnesses' credibility. "We presume, in the absence of any contrary indication in the record, that the jury understood and followed this instruction." (People v. Fauber (1992) 2 Cal.4th 792, 823.)
II.
Diaz contends the trial court erroneously allowed Kawachi to opine regarding whether J.D.'s cervical injuries were consistent with J.D.'s reported injuries because Kawachi was not qualified to give such an opinion. Specifically, "She was not a qualified expert in the field of the genesis of physical injury to a sexual organ and the court therefore erred in admitting her opinion that the redness to [J.D.'s] cervix was consistent with sexual abuse." He claims "there are few scientific studies which purport to correlate certain physical injuries with the conclusion that they were inflicted by sexual assault. Absent such studies, no witness should be allowed to testify that an injury is 'consistent ' with sexual assault." He cites Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 590, for the proposition that, "in order to qualify as a 'scientific knowledge' an inference or assertion must be derived by the scientific method."
Applicable Law
Evidence Code section 720, subdivision (a) provides that, "[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." As a general rule expert opinion testimony is limited to an opinion that 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).) Because admissibility of expert opinion is a question of degree, and a jury need not be wholly ignorant of the subject matter under the statutory rule, exclusion is only necessary where the opinion would add nothing at all to the jury's common fund of information. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) For example, courts have repeatedly recognized the appropriate use of expert testimony when an alleged victim's actions during or following a crime seem to contradict the victim's claims in cases of alleged molestation or abuse. (See People v. Riggs (2008) 44 Cal.4th 248, 293 [expert testimony addressing battered woman's syndrome]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [expert testimony concerning child sexual abuse accommodation syndrome].) A trial court's decision as to whether a particular subject is a proper one for expert opinion is reviewed for an abuse of discretion. (People v. Mayfield (1997) 14 Cal.4th 668, 766.) " 'Where . . . a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.)
Analysis
Kawachi's testimony was based on her training and years of experience as a SART nurse. "[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 [dealing with examinations of sexual assault victims].) Thus, the only question presented was whether Kawachi was medically qualified to examine a woman and determine whether the situation was normal or whether the injuries she observed ("abrasion," "redness" and "laceration") were consistent or inconsistent with consensual or non-consensual sexual penetration. This did not involve a " 'new scientific technique' " presenting the question of whether the technique had been accepted in the scientific community. (Accord, People v. Rowland (1992) 4 Cal.4th 238, 265.) Instead, this was a medical examination of the sort routinely conducted for a long time on women who are undergoing regular physical examinations and for decades on those who claim to have been subjected to a sexual assault.
Diaz further contends Kawachi's testimony encroached on the exclusive domain of the jury as the trier of fact. A witness may not testify as to a defendant's guilt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) "[T]he trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt." (People v. Torres (1995) 33 Cal.App.4th 37, 47.)
Kawachi testified that J.D.'s genital injuries were, in her experience, consistent with the history J.D. reported. In rape prosecutions, courts routinely admit expert testimony, including from SART nurses, that a victim's injuries are consistent with nonconsensual sexual intercourse (see, e.g., People v. Hatch (2000) 22 Cal.4th 260, 265; People v. Espinoza (1992) 3 Cal.4th 806, 813, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800), and the California Supreme Court has implicitly endorsed the notion that genital trauma can suggest lack of consent (see People v. Berryman (1993) 6 Cal.4th 1048, 1084 [citing abrasions to pelvic region and blood cells found in vagina as evidence of lack of consent], overruled on other grounds as stated in People v. Hill (1998) 17 Cal.4th 800, 822-823.).
Kawachi plainly did not opine as to J.D.'s veracity or state of mind, or as to Diaz's guilt. Kawachi's statement that J.D.'s injuries were consistent with J.D.'s report was not a conclusive assertion of causation. In fact, Kawachi admitted on cross-examination that sex toys, masturbation and sexually transmitted illnesses could have caused the injuries she described. The trial judge instructed the jury that it was the sole arbiter of witnesses' credibility (see CALCRIM No. 226), and, absent a showing to the contrary, we assume the jury followed the trial judge's instruction to make its own determination regarding the reliability of Kawachi's testimony. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Kawachi's testimony did not amount to an improper opinion as to Diaz's guilt, and accordingly, the superior court did not abuse its discretion in admitting it.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. I CONCUR:
BENKE, Acting P. J. I CONCUR IN THE JUDGMENT:
McINTYRE, J.