Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 151004.
Kline, P.J.
INTRODUCTION
Darrell Johnson appeals following his conviction by a jury of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), and four counts of forcible oral copulation (§288a, subd. (c)(2)) against victim R. Doe. He contends the trial court erred: (1) in admitting evidence of appellant’s prior sexual offense pursuant to Evidence Code sections 1108 and 1101; (2) in admitting the tape of R. Doe’s 911 call to police as a spontaneous statement; (3) in permitting the use of a victim support person during R. Doe’s testimony; (4) in admitting evidence of rape trauma syndrome. He further claims that cumulative error requires reversal. We shall affirm the judgment.
All statutory references are to the Penal Code, unless otherwise indicated.
Pursuant to section 293.5, the alleged victim was referred to as “[R.] Doe” throughout the proceedings.
COMBINED STATEMENT OF THE FACTS AND PROCEDURAL BACKGROUND
On October 17, 2005, an information was filed by the Alameda County District Attorney charging appellant with one count of forcible rape (§ 261, subd. (a)(2)), and four counts of forcible oral copulation (§ 288a, subd. (c)(2)). The information alleged appellant was ineligible for probation as to each charge (§ 1203.065, subd. (a)), and alleged seven prior convictions, including a prior prison term within the meaning of section 667.5, subdivision (b).
Jury trial began on August 1, 2006. R. Doe testified that she worked as a certified nursing assistant at a health care center in Alameda County. She lived in a one-bedroom apartment in East Oakland. At the date of trial, R. Doe had known appellant’s mother, Lydia Castle, for about four to five years. They had worked together at the health care center. R. Doe called Castle “Mother” and testified they were “very close.” They spoke both at work and after work, when R. Doe would visit Castle at her home. R. Doe met appellant through Castle and she had known him for the same length of time that she had known his mother.
Before the incident, R. Doe thought appellant was “a nice guy,” but “nerve-wracking.” He would “get on [her] nerves.” She would tell him, “Darrell, stop talking. Leave me alone.” Appellant repeatedly asked R. Doe if he could wash her car. She permitted him to do so. She also had him paint her kitchen and shampoo her carpets. He did both on the same day and took about two or three hours. He did not ask to be paid, but she gave him $25 for the work. She did not speak with appellant much while he was working at her home, because she was on the phone. She asked him to return because the carpet was “half-done.” But he did not return to finish the job.
R. Doe spoke to appellant when she visited Castle. She and appellant never had a physical relationship. She had a boyfriend at the time and appellant did not appeal to her. Appellant had been to R. Doe’s home three times, including the day of the incident. He had ridden with her to the grocery store on one occasion.
On May 19, 2005, around midnight, R. Doe was at her home, lying on her loveseat and watching television. She heard someone knocking on her back door. She went to the door and asked who it was. Appellant identified himself and she opened the door. Appellant told R. Doe he was drunk and asked if he could come in and spend the night. It was raining and he did not think he could make it home. She let him in, because “he was a friend,” and because she knew he was drunk and could not make it home. She told appellant to take off his shoes. She then went back and laid down on the loveseat in the living room. Appellant followed her into the living room. R. Doe went to her bedroom and retrieved a blanket for him, and he lay down on the living room floor while she returned to the loveseat. While appellant was lying on the floor, R. Doe was having difficulty watching television because appellant was “talking all kind of crazy stuff.” She told appellant to be quiet. He quieted down temporarily, but then resumed saying “crazy stuff.” Eventually, R. Doe jumped up and ordered appellant out of her house. Appellant “jumped” her, grabbing her gown at the collar and pulling down. He also grabbed her sweatpants and pulled down on them. She screamed and hollered, “Stop. Help . . . Somebody help me, help me,” and tried to fight him off. Appellant had a “very mean look” on his face. R. Doe was “nervous” and “very scared.”
R. Doe said that she was not able to fight appellant off, and she ended up on her back on the living room floor. Appellant was on top of her, with one hand around her neck (R. Doe’s signed statement to police described appellant as having choked her) and the other hand hitting her on her thigh. Appellant told her that if she continued to scream and the police arrived, he would kill her. She was scared for her life. Appellant told her that he was going to “do this all night” and that his “ ‘freedom will be gone.’ ” R. Doe interpreted this to mean that he was going to do what he wanted with her since he was probably going to go to jail. She was scared, and stopped resisting appellant.
On top of her, appellant removed her pants and underwear forcefully and started “doing oral sex” on her. He had his tongue inside her vagina. He told her to take off her shirt and she complied because she was scared. She just lay there, hoping he would not kill her. According to the police report, the oral sex continued for several hours. R. Doe testified that she had not told the police that the initial oral sex had lasted several hours, that she did not know how long it lasted, and that it occurred for some minutes.
At some point, R. Doe noticed that her right pinky finger was “cut real bad, bleeding.” Appellant stopped what he was doing and followed her into the bathroom, where he licked the blood off of her finger, then ran it under water and applied a bandage. In the bathroom, he told her she better not do anything. She wanted a drink of water and went to the kitchen. Appellant followed. She did this hoping appellant would stop. Appellant again told R. Doe, “ ‘You better not try nothin’.’ ” After drinking water, R. Doe returned to the living room and sat on the loveseat.
After they returned to the living room, appellant ordered R. Doe back onto the floor and started performing oral sex on her again. He then ordered her to “do him” and she performed oral sex on him. He then told her to do him, while he did her, and they engaged in mutual oral sex. Finally, he put his penis partially inside her vagina, but told her that he was not going to put his penis inside her because he did not have a condom. While rubbing against her, appellant was kissing all over her face and telling her he loved her. Eventually, he stopped.
Appellant asked for a towel and R. Doe went to her bedroom and gave him a clean towel. He took it to the bathroom. She returned to the living room, found her clothes and put them on. Appellant returned to the living room and lay on the floor, naked. R. Doe felt “[b]ad, nasty . . . [j]ust nervous, scared, scared, scared.” Appellant asked her if she was gong to call the police on him, to which she replied no. He asked if she was going to call his mother on him, to which she replied no. According to R. Doe, appellant said it was “the first time he ever did that, and he was sorry he did that to me.” Appellant asked R. Doe how much she paid for rent and told her that he was going to give her $50 the next day for rent and $100 a week so that he could move in with her. He offered her DVD movies that he had in his backpack. She accepted them, even though she did not have a DVD player.
R. Doe tried to figure out a way to get out of her home. She grabbed her car keys from an end table, went to the kitchen and pretended to get water, and then ran out the back door. She yelled to appellant to get out of her home, and she ran down the stairs to her car. She noticed appellant’s bicycle as she went down the stairs. She got inside her car and locked the door, thinking she would be safe there. About five minutes later, she saw appellant leave on his bicycle, so she got out of her car and ran back up the stairs to her apartment.
Still feeling scared, R. Doe called appellant’s mother and told Castle, “ ‘Mother, you know, Darrell just raped me. I call the police on him. Can you come over here?’ ” While waiting for Castle to arrive, she brushed her teeth, rinsed out her mouth, and washed between her legs. Castle and her son Eric arrived in a few minutes. R. Doe repeated to Castle that appellant had raped her. Castle was upset and asked her why she let appellant into her home. According to R. Doe, appellant called Castle or Castle called appellant. Either way, Castle asked appellant why he had done that to R. Doe. Afterward, as they were leaving, Castle told R. Doe, “ ‘Do what you have to do’ . . . ‘If you’re going to call the police, call the police.’ ” Castle also said that appellant could not come back to Castle’s house again. After Castle and Eric left, R. Doe called 911.
Three police officers arrived five or ten minutes later, around 4:17 a.m. R. Doe told the first officer on the scene that appellant had raped her. She provided a statement. A female officer took photographs. The police took her to the emergency room at Highland Hospital. She told the attending nurse that she had been raped. The nurse examined R. Doe’s body, including her vagina. Another officer arrived to take additional photographs. R. Doe testified that her sweat pants were torn and that before appellant arrived at her home, there were no tears in her clothing. She identified photographs showing injuries to her cheek, ear, breasts, and finger. She did not have these injuries before appellant’s arrival at her home that night, but could not recall exactly when or how they occurred. After the incident, R. Doe experienced depression and was taking antidepressants. She had difficulty sleeping and eating and was experiencing stress. She no longer spoke with Castle, which made her sad, because Castle was like a mother to her. R. Doe never gave appellant permission to engage in sexual conduct with her.
Castle testified that R. Doe phoned her at about 4:00 or 5:00 o’clock in the morning on May 19, 2005 and told her that appellant had raped her. Castle and Eric went to R. Doe’s home, arriving in a few minutes. Upon their arrival, R. Doe repeated that appellant had raped her. According to Castle, appellant called R. Doe on her cell phone while Castle and Eric were there. Castle spoke to appellant and asked if he had raped R. Doe. Appellant said no. R. Doe asked Castle and Eric if she should call the police, and Eric told her to do what she needed to do. When R. Doe visited at Castle’s home, she and appellant would talk and she had appellant clean her car. Castle discouraged R. Doe from “flirting” with appellant and giving him her address and phone number. Castle testified that this was because appellant “is the type of person when talking to him, and when he feel that you like him, he thinking it—like, it’s love and not a—you know, a friendly gesture. With his problems that he have, he take it like you love him.”
Oakland Police Officer Michael Stolzman, who responded to the 911 call, noted in his report that R. Doe “ ‘appeared calm, but, also very angry. [¶] . . . [¶] [She] [a]lso appeared to be extremely nervous, and at times, she looked like she was going to cry.’ ” He did not observe physical injuries, other than on her pinky finger. He did not inspect her body for injuries.
An Oakland Police Department evidence technician responded to R. Doe’s home at 4:35 in the morning on May 19, 2005. R. Doe told her she had been raped. She complained of pain to her neck and shoulder and had a small cut on her right pinky finger.
Hillary Larkin worked as a physician’s assistant in the emergency department at Highland Hospital. She also headed the Sexual Assault Response Team and was a certified forensic examiner in the emergency room. She was deemed an expert on the subject of whether injuries are consistent with rape or forced intercourse. Larkin examined R. Doe around 9:00 a.m. on the morning of the incident. She noted in her report that R. Doe had an injury to her right fifth finger and had chest and neck pain. R. Doe reported that appellant had a knife in his backpack, that appellant had hit her on the left side of her face, and that he had choked and strangled her. She reported that her clothing was torn, although Larkin noted that R. Doe’s clothing was intact. R. Doe told Larkin that she had not washed, however she reported having brushed her teeth and rinsed. She responded affirmatively when asked whether she was penetrated by appellant’s penis and that there was mutual oral copulation. There was white discharge in her vagina. Larkin noted R. Doe’s injuries: pain to the neck and front chest, bilateral bruises on her breasts, a bruise on her left thigh, and lacerations on her right pinky and ring fingers. Larkin did not observe an injury to her face. Larkin noted two lacerations to R. Doe’s labia minora which were obvious to the naked eye. One was at the 4:00 o’clock position and one at the 8:00 o’clock position. The laceration at the 8:00 o’clock position was actively bleeding, which was rare in Larkin’s experience and indicated a more “severe” injury. Larkin opined that R. Doe’s injuries were consistent with the history she provided. Larkin also opined that the injuries to her vagina were consistent with rape or forced intercourse. This opinion was based on the presence of an actively bleeding lesion, two areas of abrasion and the time frame and history of the assault. Larkin testified that the presence of two “findings” is, in her experience, inconsistent with consensual sex.
DNA evidence from R. Doe’s vaginal swab identified appellant as the source of the sperm cells that were present on the swab and appellant’s sperm and DNA were found on the towel taken from her apartment.
After in limine rulings by the trial court, a K. Doe testified pursuant to Evidence Code sections 1108 and 1101, about an assault upon her by appellant occurring about 12 months before the incident with R. Doe, and Marcia Blackstock, Executive Director at Bay Area Women Against Rape, testified as an expert on the subject of rape trauma syndrome.
On September 6, 2006, appellant was found guilty as charged. He waived a jury trial on the seven prior convictions and admitted six of the seven priors as true, including a prior prison term within the meaning of section 667.5, subdivision (b). On October 25, 2006, the trial court sentenced appellant to 17 years in state prison: the upper term of eight years for one of the oral copulation counts and consecutive two-year terms for each of the remaining four convictions. The court also imposed a one-year enhancement for the prior prison term, striking the remaining prior convictions in the interest of justice. This timely appeal followed.
DISCUSSION
I. Admission of K. Doe’s testimony (Evid. Code, §§ 1101, 1108)
Appellant contends the trial court erred in admitting, pursuant to Evidence Code sections 1101 and 1108, the testimony of K. Doe regarding appellant’s sexual battery or attempted sexual battery of her approximately 12 months before the incident in the present case.
A. Evidence of prior sexual offense
Before trial began, the prosecutor moved to admit evidence of appellant’s prior uncharged sexual acts against K. Doe as propensity evidence pursuant to Evidence Code section 1108, and to prove appellant’s intent, knowledge, and absence of mistake pursuant to Evidence Code section 1101, subdivision (b). Appellant objected to that testimony during in limine proceedings and after an Evidence Code section 402 hearing, arguing: that the K. Doe’s description of appellant’s behavior did not constitute sexual battery; that appellant was never charged with sexual battery, but only with simple battery (§ 242) and disorderly conduct-lewd acts in public (§ 647, subd. (a)); that the application of Evidence Code section 1108 denied him due process; that the previous offense against K. Doe and the charged offenses against R. Doe were not similar; and that their admission would unduly prejudice him.
K. Doe testified at the in limine hearing to determine the admissibility of appellant’s alleged prior sexual acts. She was working at Highland Hospital on May 4, 2004, when appellant approached her and asked her to show him to the pharmacy. He grabbed onto her arm, and they walked down the hallway together. He had his right arm through her left arm and was holding a small paper bag in his other hand. He looked around and saw no one was around. He did not say anything, but had a “suspicious grin” on his face. He pulled her arm and her hand toward his genitals. He continued to pull on her arm until her hand brushed against his pants near his groin. She said “ ‘What the fuck are you doing?’ ” and pushed him. He fell to the floor. He then started crawling on the floor toward her, his tongue outside his mouth, licking and insinuating he wanted to lick her private parts. He said, “I want to give you a licking. You know you’re a big old girl.” She ran away from him and told her boss what had occurred. The police were called. They came to the hospital and arrested appellant. K. Doe described appellant’s behavior to the police and told them that appellant had indicated that he wanted to perform oral sex on her; but she did not tell the police that he actually said anything to that effect. She did not want to say any more at the time, because the police had not asked those specific questions and because “[b]lack men go through enough.” She went into more detail after she was approached by the prosecution in the instant case.
At the conclusion of K. Doe’s testimony at the Evidence Code section 402 hearing, the trial court found the prior sexual offense evidence admissible under both Evidence Code sections 1108 and 1101, subdivision (b). Ruling first that the evidence was admissible under section 1108, as propensity evidence, the court concluded that the conduct K. Doe described satisfied the elements of attempt to commit a sexual battery under section 243.4, that the entire circumstances of the incident indicated that it was appellant’s intent to commit a sexual battery, and that but for K. Doe’s actions in defending herself, he would have committed a sexual battery. The court then continued to find the prior offense evidence also admissible under Evidence Code section 1101, discussing the factors it considered in greater detail and finding that the prior offense evidence had a tendency to prove the material facts in dispute in the charged case—whether the acts were consensual and appellant’s intent. The court observed that a high showing of similarity was not required. It found that the uncharged acts were similar, in that appellant used an innocent ploy to gain access; used force (attempting to make K. Doe touch his groin area); looked to see if there was anyone else around; and expressed a desire to orally copulate his victims. Further, as to knowledge and absence of mistake, the court observed that K. Doe overtly expressed her unwillingness to participate. The court found the testimony and evidence from K. Doe was independent of any information received from R. Doe, the proximity of the incidents increased their similarity, so that the fact that each occurred independently and involved different victims who were unknown to each other, showed considerable probative value with regard to intent. The court concluded the uncharged offense was not inflammatory in nature, and certainly no more inflammatory than the charged offenses. Because appellant was convicted of a criminal offense against K. Doe, it was unlikely the jury would feel that he was not properly punished or that he needed to be punished for the uncharged offenses by finding him guilty of the charged offenses. As a result, the court concluded that the probative value of this evidence outweighed any prejudicial effect and that the testimony of K. Doe would also be admissible under section 1101 for knowledge and absence of mistake.
B. The law
We need not decide whether the evidence was admissible to show common scheme or modus operandi under Evidence Code section 1101, because we conclude that it was properly admitted to show propensity under Evidence Code section 1108.
Evidence Code section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court found that Evidence Code section 1108, which permits introduction of propensity evidence in cases alleging the commission of sexual offenses, did not violate a defendant’s due process rights. While acknowledging the general rule against admitting such evidence due to its great potential to unduly prejudice the defendant, the court held that, “in light of the substantial protections afforded to defendants in all cases to which [Evidence Code] section 1108 applies, we see no undue unfairness in its limited exception to the historical rule against propensity evidence.” (Id. at p. 915; accord, People v. Wilson (2008) 44 Cal.4th 758, 796-799.)
Evidence Code section 1108 was enacted in 1995 to permit the use of disposition or propensity evidence in sex offense cases. (Falsetta, supra, 21 Cal.4th at p. 911.) The Legislature intended for Evidence Code section 1108 “to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense. [Citation.] [¶] . . . ‘Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.’ [Citations.]” (Flasetta, at pp. 911-912.)
The “substantial protections” to which the Falsetta court referred consists of the requirement that the court “engage in a careful weighing process under [Evidence Code] section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The Falsetta court concluded that “the trial court’s discretion to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s due process challenge. . . . This [Evidence Code section 352] determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . [Evidence Code] section 1108 does not violate the due process clause.’ [Citation.]” (Falsetta, supra, 21 Cal.4th at pp. 917-918, italics omitted; see People v. Wilson, supra, 44 Cal.4th at p. 797.)
C. No waiver
Appellant first argues that admission of evidence under Evidence Code section 1108 to show propensity denies a defendant’s due process right to a fair trial. He acknowledges, however, that we are bound by our Supreme Court’s finding in People v. Falsetta, supra, 21 Cal.4th 903, that section 1108 is constitutional. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Respondent contends that appellant waived any objection under Evidence Code section 352, by failing to object specifically on that ground. We believe appellant sufficiently raised a section 352 objection, as he argued the admission would unduly prejudice him, as well as arguing that some of the factors the court would necessarily consider in conducting its balancing under that section were absent.
D. No abuse of discretion in admitting propensity evidence
However, we reject appellant’s claim that the court did not adequately engage in the weighing process necessary under Evidence Code section 352. First, “as the Supreme Court has repeatedly . . . reaffirmed, ‘when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352’ (People v. Williams (1997) 16 Cal.4th 153, 213, citing People v. Lucas (1995) 12 Cal.4th 415, 448-449.) Nothing in Falsetta indicates the Supreme Court intended either to reverse this well-established precedent on the proper standards for section 352 analysis, or to require a trial court to articulate its consideration of each of a list of particular factors of probability and prejudice in making a decision under section 352.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
Second, it appears to us that on the whole record the court did weigh the relevant factors. Although it articulated the factors it considered in more detail in connection with its determination that the evidence was admissible under Evidence Code section 1101, it strains credulity to assert that the court did not consider the same factors in connection with its Evidence Code section 1108 determination.
Were we to conclude the failure to fully articulate Evidence Code section 352 factors separately for each determination were error, it would doubtless be harmless.
The court’s analysis in this case was sufficient. The court found the two incidents similar under Evidence Code section 1108, acknowledging that they did not need to be highly similar under this section. (See People v. Mullens (2004) 119 Cal.App.4th 648, 659 [less similarity required under Evidence Code section 1108 than under Evidence Code section 1101]; People v. Frazier (2001) 89 Cal.App.4th 30, 40-41 [“The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose”].) Indeed, the Supreme Court acknowledged in People v. Reliford (2003) 29 Cal.4th 1007, that it had explicitly left open “whether the uncharged sex acts must be similar to the charged offenses in order to support the inference. (See Falsetta, supra, 21 Cal.45th 903, 926 (conc. opn. of Brown, J.).)” (People v. Reliford,at p. 1012, fn. 1.) The trial court also found that the uncharged conduct amounted to attempted sexual battery, that the incidents were not remote in time from each other, that the sources of the evidence were independent of each other, that the jury would not be tempted to punish appellant again for the uncharged offense because he had been previously convicted of criminal offenses against K. Doe, and that the uncharged conduct was not inflammatory in nature and was much less inflammatory than the charged conduct against R. Doe. These were all proper considerations. That appellant disagrees with the court’s resolution of this balance does not indicate that the court abused its broad discretion in admitting the evidence of the uncharged offenses.
Appellant argues that the two incidents were not similar. Although not similar in all respects, we believe they were similar in the respects described by the court and that such similarity was adequate to support the admissibility of the uncharged conduct under Evidence Code section 1108. Certainly, they were not “totally dissimilar . . . .” (See People v. Harris (1998) 60 Cal.App.4th 727, 740.)
Appellant contends the sources were not independent. He argues that K. Doe’s report to the police was not as detailed as her testimony at court, in that she only alleged appellant stated he wanted to lick her, after she was approached by the prosecutor in this case. K. Doe explained that she had not told the interviewing officer what appellant had said to her while he was crawling toward her on the ground because she was not asked about and did not feel comfortable talking about what had happened. Nevertheless, the police report attributes the following statement to her: “ ‘He was indicating he wanted to perform oral sexual acts on me. He was smiling the entire time.’ ” This difference between her statement in court and her statement to investigating officers does not undermine the independence of the sources. K. Doe reported the incident to the police approximately one year before the incident with R. Doe, describing appellant’s conduct in detail at the time. Substantial evidence supports the court’s finding that the sources were independent.
Appellant contends that the conduct described by K. Doe was not a sex offense within the ambit of Evidence Code section 1108, as it did not amount to sexual battery or attempted sexual battery and that appellant was not charged with or convicted of a sex offense. However, the court properly focused upon appellant’s conduct as described by K. Doein the uncharged offense in this case. (People v. Wilson, supra, 44 Cal.4th at p. 798; see People v. Mullens, supra, 119 Cal.App.4th at pp. 661-662.) Appellant’s conduct, described by K. Doe, constituted an attempted sexual battery. (§ 243.4, subd. (d) .) No case cited by appellant requires that the prior uncharged offense result in either charges or a conviction, although such fact is undoubtedly part of the balance the court must consider in engaging in the Evidence Code section 352 weighing process. (See Falsetta, supra, 21 Cal.4th at p. 917 [“the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses”]; People v. Branch (2001) 91 Cal.App.4th 274, 284.)
Section 243.4, subdivision (d), provides in relevant part: “Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, . . . to masturbate or touch an intimate part of either of those persons . . . is guilty of sexual battery. . . .”
However, the degree of certainty of the prior sex offense is just one of many factors for the trial court to consider. (Falsetta, supra, 21 Cal.4th at p. 917.) The court here did consider whether admission of the uncharged offense evidence would increase the danger the jury would punish appellant for that offense and determined that, because he had already been punished for his actions against K. Doe (although not for sexual battery), such risk was mediated. “ ‘This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]’ ” (Falsetta, supra, at pp. 917-918, quoting People v. Fitch (1997) 55 Cal.App.4th 172, 183.) We cannot say the court abused its discretion in so determining.
II. Admission of R. Doe’s 911 call (Evid. Code, § 1240)
Appellant contends the court erred in admitting evidence of R. Doe’s 911 phone call to police as a spontaneous statement pursuant to Evidence Code section 1240. We disagree.
A. Admission of the tape of the 911 call
The prosecutor sought to admit the recording of R. Doe’s 911 call to the police as a spontaneous statement. Defense counsel objected in limine, stating that she was “not sure whether or not it meets the elements of a spontaneous statement, because at this point, I don’t know how spontaneous it was.” Counsel observed that the court did not know whether the call was made within minutes or hours of the event, but did know that R. Doe’s conversation with appellant’s mother and brother intervened between the incident and her 911 phone call. Defense counsel further contended that she had reviewed Davis v. Washington (2006) 547 U.S. 813, 826-829, following Crawford v. Washington (2004) 541 U.S. 36, and that an Evidence Code section 402 hearing was required before admitting the tape recording. The trial court stated that it appeared from the tape that R. Doe was still upset; however, the court decided to put the matter over until her testimony, at which time there would be more information as to how much time had passed since the incident and how she felt at the time.
R. Doe testified that, when appellant left, she ran upstairs immediately to call Castle, who had been like a mother to her. She was not sure how long it took Castle to arrive, estimating it took seven or eight or possibly 15 minutes, as she lived nearby. R. Doe brushed her teeth, used Listerine, and washed herself off with a towel in the meantime. When Castle arrived with her son Eric, R. Doe told them that appellant had raped her. She did not go into detail. Castle talked to appellant on the cell phone. R. Doe estimated Castle was at her house for 15 to 20 minutes, before they left and R. Doe called the police. While there, Castle told R. Doe “ ‘Do what you have to do.’ . . . ‘If you’re going to call the police, call the police.’ ” She called the police immediately after they left. She felt scared, upset and nervous because she had been raped. She was afraid appellant might come back.
Following this testimony, and outside the presence of the jury, the court asked appellant’s counsel whether there was any authority appellant wished to present on the matter of admissibility and whether there was anything in particular appellant wished to submit as to the applicability of Davis v. Washington, supra, 547 U.S. 813. Defense counsel responded: “Your Honor, I would submit it on other earlier comments in regards to—to what my belief was in regards to these cases and its relationship to the 911. Specifically, this 911 call, the out-of-court hearsay testimony. I have reviewed those cases again and understand, as the Court has pointed out, that those cases apply when the witness, actually, is unavailable and does not testify; therefore, giving the defense an opportunity to cross-examine that witness. [¶] So with that, based on those two cases, I will withdraw my objection based on those two cases.” The jury returned and the prosecutor introduced the section 911 tape recording. R. Doe resumed testifying, and appellant’s counsel made no further objection. Following R. Doe’s testimony and the admission of the 911 call recording, the trial court stated that it had found pursuant to Evidence Code section 1240 that “the tape ‘purports to narrate, describe, or explain an act, condition, or event perceived by declarant, and it was made spontaneously while the declarant was under the stress of excitement caused by such perception.’ ”
B. Legal Analysis
(1) Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
“ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)
“Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court ‘necessarily [exercises] some element of discretion . . . .’ [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]. Indeed, Dean Wigmore goes so far as to urge that the issue should be left ‘absolutely to the determination of the trial court.’ [Citation.]” (People v. Poggi, supra, 45 Cal.3d at pp. 318-319.)
(2) Respondent first contends that defense counsel withdrew her objection and therefore waived the issue on appeal. (People v. Robertson (1989) 48 Cal.3d 18, 44.) Although the record could be clearer, it appears that defense counsel objected on two grounds, one being that the call was not spontaneous due to the uncertainty of the time between the event and the 911 call and the intervening factors of R. Doe’s call to Castle and Castle’s visit. She did not withdraw her objection on this ground, but somewhat obliquely stated that she “would submit it on other earlier comments in regards to—to what my belief was in regards to these cases and its relationship to the 911. Specifically, this 911 call, the out-of-court hearsay testimony.” She then withdrew her objections based on “those two cases,” apparently referring to Davis v. Washington, supra, 547 U.S. 813, and either its companion case Hammon v. Indiana (2006) 547 U.S. 813 or Crawford v. Washington, supra, 541 U.S. 36. It is not at all clear that appellant waived the basic objection that the statement was not “spontaneous” within the meaning of Evidence Code section 1240. We therefore proceed to address the merits of this claim.
(3) Appellant contends the 911 call was not spontaneous, relying upon the passage of time between the event and R. Doe’s call. Based upon R. Doe’s testimony, the court could reasonably find that the call was made within 30 to 35 minutes after appellant left her home. R. Doe testified that she immediately called Castle; it took Castle seven or eight or possibly 15 minutes to arrive; they spoke for approximately 15 to 20 minutes and that she then called the police. “ ‘The lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative. “ ‘Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ ” [Citation.]’ (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234-1235, some italics omitted.)” (People v. Pirwani (2004) 119 Cal.App.4th 770, 789 [held the court abused its discretion in admitting declarant’s statement to her social worker’s supervisor where there was a two-day lapse, during which the declarant went to the police to accuse the defendant of stealing from her and talked to at least two police officers before making the statement sought to be admitted].) Here, the trial court could well have determined that an interval of less than an hour was not so long as to render the statement not spontaneous. (See People v. Brown (2003) 31 Cal.4th 518, 541 [statement two-and-one half hours after the startling event—a shooting—was properly admitted as a spontaneous declaration]; People v. Poggi, supra, 45 Cal.3d at p. 319 [statement properly admitted despite 30-minute lapse between attack and statement to police].)
Moreover, the trial court also relied upon the tape itself, which supports the court’s determination in that it indicates that at the outset of the call, R. Doe was crying, upset and still under the stress of the event when she told the dispatcher that appellant had raped her. She regained her composure, speaking very quickly and excitedly in response to the dispatcher’s short and simple questions. (See People v. Gutierrez (2000) 78 Cal.App.4th 170, 180 [that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing emotional condition will often suffice for a spontaneous utterance.].)
Appellant concedes that the fact that R. Doe was responding to questions from the dispatcher did not render the statement non-spontaneous. (See People v. Morrison (2004) 34 Cal.4th 698, 718-719; People v. Pedroza (2007) 147 Cal.App.4th 784, 791; People v. Pirwani, supra, 119 Cal.App.4th at pp. 789-791), but argues that the statements to the dispatcher also show deliberation, as she thought about her answers and supplied narrative, detailed answers, showing that she was not under the stress of excitement. This determination was for the trial court. “[T]he fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the exception virtually nugatory: practically the only ‘statements’ able to qualify would be sounds devoid of meaning.” (People v. Poggi, supra, 45 Cal.3d at p. 319.)
Appellant further contends that the record shows R. Doe deliberated about contacting the authorities before she did so, and that such reflection prevents her 911 call from satisfying the requisites of Evidence Code section 1240. Appellant relies upon People v. Ramirez (2006) 143 Cal.App.4th 1512 for support. In People v. Ramirez, the appellate court concluded the trial court had abused its discretion in admitting statements by the victim that she had been raped by the defendant, where the victim had been raped in defendant’s car between 2:00 a.m. and 4:00 a.m., the victim and the defendant returned to a hotel room where others were present and the victim said nothing about the rape, the victim took a shower, and asked to be driven home. She got back into the car with the defendant so he could drive her home. She fell asleep in the car and awoke at approximately 7:00 a.m. in a strange apartment. After one Mujica arrived, she told this person she had been raped. She refused Mujica’s offer to call the police, worrying that her brother would be angry. (Id. at pp. 1521, 1524.) She then left the apartment and walked back to her motel, arriving approximately 8:30 or 9:00 a.m., and sometime after that, told two others that the defendant had raped her. (Id. at p. 1524.) The victim was upset and crying when she related the details of the previous evening, and told them a number of times she was worried about what her brother might do to her if he found out. (Id. at p. 1525.) The court observed that not only did the victim speak clearly and distinctly and was oriented to reality, but the content of her statements, including that she was worried about what her brother would do, demonstrated that the victim “in fact engaged in a deliberative or reflective process as to the subject matter of the statements at issue, and thus established that her reflective powers were not ‘yet in abeyance.’ ” (Id. at p. 1526.) The appellate court concluded that the trial court’s finding to the contrary was not supported by substantial evidence as “the evidence establishes that the victim not only had the opportunity to engage in a deliberative process during the time that elapsed between the startling event and the time the statements at issue were made, but that she actually did so.” (Id. at p. 1526.)
The facts here are far different. The time-frame between the event and the statement was much shorter than in People v. Ramirez, supra, 143 Cal.App.4th 1512. That R. Doe called Castle (appellant’s mother and someone R. Doe considered to be like a mother to her) and related that appellant had raped her does not necessarily indicate reflection. She did not relate to Castle a detailed narrative of the event, but merely told her that appellant had raped her. Nor is a different conclusion compelled by Castle’s testimony that as she and Eric were leaving, R. Doe asked if she should call the police, and that Eric told her to do what she needed to do. Castle’s testimony that R. Doe asked her that question occurred after admission of the 911 tape. Had it been elicited before the tape was played, it could have been taken into account by the court in its determination whether R. Doe’s powers of deliberation or reflection were in abeyance at the time she called 911.
Moreover, in this case, the tape of the statement itself was before the court, which determined based thereupon that R. Doe was still under the stress of the event, “ ‘while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance . . . .’ ” (People v. Poggi, supra, 45 Cal.3d at p. 318.) These are factual determinations, as to which the discretion of the trial court is at its broadest. (Id. at p. 319.) We cannot say that the court abused its discretion in admitting the 911 call as a spontaneous statement under Evidence Code section 1240.
III. Victim Support Person
Appellant contends the trial court erred by permitting the use of a victim support person during R. Doe’s testimony. When the prosecutor called R. Doe to testify, he stated, “Your Honor, [R. Doe] is accompanied by Maria Suniga from the [d]istrict [a]ttorney’s Victim-Witness program.” The court then advised the jury: “Just for the jury’s information, the law provides that certain individuals can have someone to assist them in testifying in court, and they’re not allowed to do anything other than to be there just for security purposes for the witness.” There is no indication in the record where the support person sat during R. Doe’s testimony.
Appellant asserts that the presence of the victim support person deprived him of due process and that the presence of this person bolstered R. Doe’s testimony in the eyes of the jury, and that he was prejudiced thereby. He further contends that the court’s description of the purpose of the victim support person as present “for security purposes” could not reasonably be interpreted to mean that Suniga was there for emotional support, but added to the prosecution’s portrayal of appellant as a violent and aggressive man.
Appellant failed to object in the trial court to the presence of the victim witness support person or to the court’s explanation of her presence. Appellant had objected to the presence of the support person at the preliminary hearing, contending that a showing of necessity was required under People v. Adams (1993) 19 Cal.App.4th 412. The court at the preliminary hearing allowed the victim witness support person based on the prosecution’s statement that R. Doe had requested a support person.
A prosecuting witness in a sex offense case is entitled to the attendance of a support person of his or her choosing, even if that person is also a witness. (§ 868.5, subd. (a).) If the support person is also a prosecuting witness, the prosecution must present evidence that the support person’s attendance is both desired by and helpful to the prosecuting witness. Once that showing has been made, the trial court must grant the request for the support person’s attendance, unless the defendant presents information establishing that the support person’s attendance would pose a substantial risk of influencing or affecting the content of the prosecuting witness’s testimony. (§ 868.5, subd. (b).) It is not clear that such a showing must be made in a case such as this, when the support person is not also a witness in the case.
As pertinent here, section 868.5, subdivision (a) provides: “Notwithstanding any other law, a prosecuting witness in a case involving a violation of Section . . . 261, . . . [or] 288a . . . shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, . . . during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’s testimony. . . .”
It is clear, however, that a defendant may waive the claim that he or she was denied a constitutional right to an evidentiary hearing on the need for a support person. (People v. Lord (1994) 30 Cal.App.4th 1718, 1722 (Lord).) In Lord, the defendant argued the trial court erred by failing to hold the hearing required by People v. Adams, supra, 19 Cal.App.4th 412, and to determine whether the six-year-old victim had a need for a support person’s presence, where the support person sat next to the victim while she testified at trial. The appellate court noted the showing required at such a necessity hearing is “debatable” (Lord, at p. 1721), but suggested in dicta the required showing is that set forth in section 868.5, subdivision (b), i.e., that “the support person’s attendance ‘is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness,’ ” and that in the case of a molested six-year-old victim, such a showing would be perfunctory, as in that situation “it is almost given that the support person’s presence is desired and would be helpful.” (Lord, at p. 1722.) The Lord court did not resolve that point, however, because it found the defendant “waived any claim of error by failing to request a hearing and determination of necessity, or otherwise object to the presence of a support person. [Citations.]” (Ibid.) We similarly conclude that appellant waived any objection, by failing to raise it at trial.
We reject appellant’s assertion that objection at trial was “futile,” because the court at the preliminary hearing had refused his request for a hearing and determination on the question of necessity. As respondent points out, the failure of appellant to object at trial to the presence of the victim witness support person or to the court’s description of her to the jury, denied the court the opportunity to remedy any error. (Lord, supra, 30 Cal.App.4th at p. 1722.) This is particularly true in the instant case, where different judges presided over the preliminary hearing and the trial, and where appellant was represented by different attorneys at the two proceedings. There is no basis for appellant’s assumption that an objection would have been overruled or that the court would not have tailored its admonishment differently, perhaps omitting the word “security.” “The absence of an objection deprived the trial court of the opportunity to correct any procedural error and make an evidence-based finding that [the victim] needed a support person. For that reason, [defendant] waived the error he now asserts. [Citations.]” (Ibid.)
IV. Evidence of Rape Trauma Sydrome
Appellant contends the trial court erred in admitting evidence of rape trauma syndrome (RTS).
A. The proceedings below
The prosecution sought to introduce evidence of RTS in order to disabuse the jury of various misconceptions about rape. The prosecutor had identified seven relevant misconceptions in his written motion. At an in limine hearing, the prosecutor specified that the expert testimony was necessary to dispel the misconception that rapists and their victims are typically strangers to one another; that a rape victim is forced into a small physical space; that there are no social interactions between a rapist and his victim; and that a victim typically remembers every detail as to what happened. Defense counsel objected to the admission of RTS evidence on the basis that there were no myths or misconceptions that would necessitate expert testimony in the case and that consequently the negligible probative value of the evidence was outweighed by its prejudicial effect. (Evid. Code, § 352.) The trial court granted the prosecutor’s motion, finding that “it appears there are several items of potentially common misperceptions that would make the expert’s testimony certainly relevant, and where the time consumption would be outweighed by the probative value,” and that there did not appear to be undue prejudice.
In his written motion, the prosecutor identified the following common misconceptions he anticipated eliciting from the expert: “(i.) the common perception of a rapist as an anonymous, disguised predator hiding in a dark alley is not accurate, rather rapists may indeed be familiar with the victim; (ii.) . . . that victims of rape are forced into physical space with the rapist is incorrect, rather the rape victim is often participating in consensual social interactions with the rapist prior to the actual rape; (iii.) . . . that only physically attractive women are raped by unattractive men is not accurate, rather rapists can be of any appearance and rape victims may also be of any appearance; (iv.) . . . that rape is a crime of sexual gratification is not correct, rather rape is a crime of power, control, domination and humiliation; (v.) . . . that rape victims should be hysterical immediately after the rape is not accurate, rather the reactions to rape may run the gamut of human emotions; (vi.) . . . that the rape victim will fight until suffering severe physical injury is not accurate, rather often the victim will submit to the intimidation or fear prior to any severe physical injury occurring; (vii.) . . . that the rape victim will accurately remember each and every detail when forced to recount the traumatic rape is not accurate, rather victims may remember the factual details differently after having the opportunity to confront the stress of the attack.”
In its case in chief, the prosecution presented the testimony of Marcia Blackstock, Executive Director of Bay Area Women Against Rape, who testified as an expert on RTS. She testified that she had not met R. Doe. She preferred to be able to talk about RTS “in generalities so you all know, basically, what everybody is going through, and if it fits for the particular victim in the case. If it doesn’t, it doesn’t, but I don’t want to muddy my explanations by knowing the individual I’m talking about.” Blackstock testified as to the three phases of RTS: the first or acute phase, lasting somewhere between two weeks to two months, where all of the emotions are at extreme levels making it difficult to function; the second phase known as the denial stage or reorganization stage, where the individual does everything in their power to feel normal and appear normal; and the third phase or integration or acceptance phase, where the person realizes they have to deal with their feelings, take everything head on and get the support they need. She testified the syndrome was a “very fluid process” and that “nobody, actually, does it the same.”
Blackstock testified that once the rape survivor realizes they are in danger, they may go into physical shock, which enables them to get through what is about to happen, but it can also affect how logically they are viewing the situation. The perpetrator becomes all powerful, so the victim believes the perpetrator is capable of doing whatever he says he will do. It is typical for the victim to not fight back or, if they begin to fight back and realize they are only going to get hurt worse if they do, they stop to assess and focus on survival. Blackstock testified as to typical emotions that a victim feels after the assault, including extreme fear, denial of the severity of what happened to them, guilt, shame, helplessness and hopelessness. She also described the variety of common physical reactions.
The prosecutor then asked Blackstock to consider a series of hypothetical facts that somewhat mirrored the facts to which R. Doe testified and asked Blackstock’s opinion as to whether anything in the facts would surprise her. In each instance, Blackstock responded that she would not be surprised at the victim’s reactions.
Blackstock would not be surprised that the victim had known the perpetrator for some years, and considered him a friend, that he had always been respectful and that she had let him into her home at 12:30 a.m when he claimed to be drunk and needing a place to stay.
She would not be surprised at the victim’s reaction to the attack, where the perpetrator has a “very mean face” and the victim initially tries to fight back, but then stops struggling when he puts his hands on her neck while lying on top of her and threatening to kill her. The victim then does what he asks. “Sounds like she started to fight back, got the message that he had nothing to lose, which kind of tells you you’re at his mercy. A lot of people at that point then try to work it a different way. What do I need to do to stay alive?”
Blackstock would not be surprised by the victim’s reaction when the perpetrator stops performing oral sex on her because her finger is bleeding, follows her to the bathroom, then to the kitchen, at each point telling her “ [d]on’t try anything.’ ” Blackstock observed, “at that point in time, her focus is staying alive. That’s what I take from that.”
Blackstock would not be surprised by the victim’s compliance and failure to resist or say no when the perpetrator once again orders her to perform oral sex on him and when he rubs his penis on her vagina, because the victim “did her no-resistance in the beginning and realized that wasn’t going to work.”
Blackstock would not be surprised if the victim could not afterword remember the exact duration of each of the sexual assaults, could not remember when the perpetrator took off his clothing, and could not remember when or how the injuries she sustained happened. Blackstock explained, “That’s part of what happens when you go into shock. Everything just kind of slows down, and the sequence or order, time frame, can be practically impossible at times to recall. [¶] Once again, that’s not your focus. Your focus is not where is his left hand at this moment, but your focus is I’m going to do whatever I have to do to stay alive. You get so focused there. [¶] Injuries, when someone is in shock, are always really common, have bleeding or some sort of wound they were absolutely oblivious to until they are out of the situation and take a look at themselves.”
Blackstock would not be surprised if the first person the victim calls is not the police, but someone close to her. “Most people after a rape have to do a lot of soul-searching, thinking who they’re going to tell, what the ramifications are going to be. Most people still don’t tell anyone. I think it’s really normal for women to turn to their best friends. If they are going to talk and tell somebody, that’s the safe person to reach out to immediately. Makes perfect sense.”
On cross-examination, in response to defense counsel’s question asking whether she would say that false accusations of a crime of rape are “very rare,” Blackstock responded that she would say so. She acknowledged that false accusations did happen. Defense counsel asked her whether it would be nearly impossible for one other than the victim or the perpetrator to prove that it was rape or a consensual encounter. She responded, “Well, I’m not an investigator. I do know that the police officers that I’ve had experience with are pretty good at getting to false allegations, because people usually slip up when they’re lying. There’s not usually physical evidence when they’re lying. You know, it’s hard to fake it over a long period of time, and there’s nothing in it for you to do that, you know, um, especially when it’s somebody that you consider to be a friend.” She acknowledged in response to defense questioning that there can be rapes without physical injury and that there could be consensual encounters that could cause bruising and discoloration. She also acknowledged that one of the greatest myths is that rape is an act of sex. It has nothing to do with sex, but rather with violence and power and control. “[S]ex is the weapon that’s used to commit that crime, as opposed to other weapons.”
The trial court later instructed the jury in accordance with CALJIC No. 10.64 that, “[RTS] evidence is not received, and must not be considered by you as proof that the alleged victim’s rape or sexual assault claim is true” and that “[y]ou should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions as demonstrated by the evidence are not inconsistent with having been raped or sexually assaulted.”
The complete RTS instruction given by the court provided: “Evidence has been presented to you concerning rape trauma syndrome. This evidence is not received, and must not be considered by you as proof that the alleged victim’s rape or sexual assault claim is true. [¶] Rape trauma syndrome research is based on an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a rape or sexual assault has occurred, and seeks to describe and explain common reactions of females with that experience. As distinguished from the research approach, you are to presume the defendant innocent. The People have the burden of proving the defendant’s guild beyond a reasonable doubt. You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions as demonstrated by the evidence are not inconsistent with having been raped or sexually assaulted.” ~(2 RT 932)~
B. The law
“In People v. Bledsoe (1984) 36 Cal.3d 236 [(Bledsoe]), our Supreme Court concluded that under the Kelly-Frye standard, psychological evidence based on the ‘rape trauma syndrome’ could not be used to show a rape actually occurred, but was admissible to ‘disabus[e] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.’ (36 Cal.3d at pp. 247-248.)” (People v. Housley (1992) 6 Cal.App.4th 947, 954-955.) According to the Bledsoe court, “[i]n a number of the cases in which the issue has arisen, the alleged rapist has suggested to the jury that some conduct of the victim after the incident—for example, a delay in reporting the sexual assault—is inconsistent with her claim of having been raped, and evidence on rape trauma syndrome has been introduced to rebut such an inference by providing the jury with recent findings of professional research on the subject of a victim’s reaction to sexual assault. [Citations.] As a number of decisions have recognized, in such a context expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths. [Citations.]” (Bledsoe, at pp. 247-248.)
“In People v. Kelly (1976) 17 Cal.3d 24 our Supreme Court adopted the rule of Frye v. United States (D.C. Cir. 1923) 293 F. 1013 regarding the use of new scientific methods of proof. Under this standard a new scientific technique employed by an expert must ‘ “be sufficiently established to have gained general acceptance in the particular field in which it belongs.” ’ (Kelly at p. 30, quoting Frye, supra, at p. 1014, italics omitted.)” (People v. Housley, supra, 6 Cal.App.4th at p. 955, fn. 2.)
“In People v. Bowker (1988) 203 Cal.App.3d 385 [(Bowker)], this reasoning was extended to the use of testimony concerning child sexual abuse accommodation syndrome (CSAAS). There, the court relied on Bledsoe and declared that while testimony concerning the common psychological effects of child abuse could not be used as a predictor of child abuse, it may—with certain limitations—be used to disabuse the jury of common misconceptions concerning abuse victims. (203 Cal.App.3d at pp. 391-394.) First, the CSAAS evidence must be addressed to a specific ‘myth’ or ‘misconception’ suggested by the evidence. (203 Cal.App.3d at p. 394.) Second, ‘if requested the jury must be admonished “that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true. . . . The evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” ’ (People v. Sanchez (1989) 208 Cal.App.3d 721, 735, quoting Bowker, supra, at p. 394, italics in original; see [citations].)” (People v. Howsley, supra, 6 Cal.App.4th at p. 955.)
C. Application
Appellant argues that, despite respondent’s having identified common “myths” and “misconceptions” relating to rape, the court erred in allowing the evidence of RTS in this case, as appellant was not relying upon any behaviors of the victim that conformed to the identified “misconceptions” to support his consent defense or to challenge her credibility. He specifically asserts that R. Doe never recanted the accusation and never substantially changed her claim; she reported the rape shortly after it occurred and cooperated with the investigation; she fought back until she suffered injury. He asserts Blackstock never explained why calling a friend who was also the perpetrator’s mother would not be unusual. He further argues that the defense did not argue that R. Doe’s behavior was inconsistent with her rape claim. We disagree with appellant’s analysis.
The defense need not expressly rely upon an myth or misconception for the court to determine that a jury could be misled by it. It is enough that the myth or misconception is “suggested by the evidence.” (See People v. Housley, supra, 6 Cal.App.4th at p. 955; People v. Sanchez, supra, 208 Cal.App.3d at p. 735; Bowker, supra, 203 Cal.App.3d at pp. 393-394.) Nor do we agree with appellant that it is common knowledge that acquaintance rape occurs and that not all rapists are hiding in the bushes or that victims of rape may not be paying full attention to the details of the attack or will quickly stop resisting when met with force.
The prosecution identified and the evidence suggested several misconceptions about rape that were relevant here: The first was the misconception that most incidents of rape involve strangers. Here, R. Doe knew her assailant. They had several interactions, including when she visited appellant’s mother. R. Doe let him into her home voluntarily. Blackstock’s general testimony about this misconception was relevant. Admission of this testimony was reasonable to disabuse the jury of the misconception that because she knew him and let him into her home voluntarily, that any sexual conduct between them necessarily would have been consensual.
A second misconception was that R. Doe would have called the police immediately after appellant left, rather than calling Castle. R. Doe had testified that Castle “was like a mother to me.” Blackstock’s testimony that it was not uncommon for rape victims to call a close friend before telling the police, was relevant to assist the jury in evaluating this behavior. That Blackstock did not specifically address the fact that the friend R. Doe called was also appellant’s mother, reinforces our view that Blackstock was addressing general myths and misconceptions relevant to the case and not testifying that the jury should believe R. Doe because she acted in accordance with the myths.
During cross-examination of R. Doe, defense counsel honed in on her admission that she could not recall how her pants came to be torn, but that they were not torn before appellant arrived at her home. Defense counsel also questioned her regarding her lack of memory as to how she sustained various bruises and a scratch on her face and about various discrepancies in her statements immediately following the event and at trial about how long the attack lasted, how long various parts of the attack lasted, and other details of the attack. Blackstock’s testimony assisted the jury in evaluating this failure of memory, by identifying the common misconception that a victim will remember everything about the attack in detail.
Blackstock’s testimony as to why victims often either do not fight back or immediately stop resisting the assault was helpful to the jury’s evaluation of R. Doe’s testimony that although she initially resisted, she soon stopped resisting and opted to comply with appellant’s demands. During cross-examination, defense counsel questioned her closely about appellant’s not using force during the acts of oral copulation themselves and about her compliance. The court could reasonably assume that a jury might misconceive the absence of sustained resistance to mean that the sexual conduct was consensual, as the defense contended.
Appellant asserts that Blackstock testified, based on the hypothetical questions put to her, that the rape had occurred. We find no such testimony. Blackstock’s response to the hypothetical questions did not amount to testimony that she believed R. Doe had been raped.
Appellant relies upon People v. Jeff (1988) 204 Cal.App.3d 309, to support his argument that, by eliciting its responses through hypothetical questions incorporating the facts of the case, the prosecution did not seek to explain any particular behavior of the victim, but rather informed the jury that R. Doe’s behavior was typical of rape victims and, therefore, the jury could find her credible. In People v. Jeff, two expert witness, a clinical social worker (Holland) and a psychologist (Meyers), were called as witnesses in the prosecution’s case-in-chief immediately following the testimony of the alleged child molest victim (Gypsy). As described by the court: “The district attorney outlined his strategy in his opening statement—‘Susan Holland will describe [Gypsy’s] symptoms. . . . Dr. Meyers will tell you what these symptoms mean.’ And, this is exactly what happened. The record reflects Ms. Holland, over objection, then was examined in substantial detail regarding her interview and evaluation of Gypsy—what Gypsy said, what emotions she exhibited, what fears she expressed about defendant, etc. Ms. Holland was followed by Dr. Meyers who, also over objection, responded to ‘hypothetical questions’ incorporating the exact same facts and details as told by Gypsy to Ms. Holland. Dr. Meyers, in response to such questions, explained to the jury Gypsy’s emotions, fears, and reactions to others are symptoms exhibited by a child molest victim. It is not significant the prosecutor told the jury Susan Holland would merely describe symptoms she observed and ‘[a]ny conclusion that is to be drawn will be yours.’ In effect and result, the prosecutor, by what he apparently perceived as brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, [supra, 36 Cal.3d 236, and other cases]. The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy. Rather, it told the jury that they should accept Gypsy’s version of these events as true, that she was a victim, molested over a three-year period by defendant, because here is how typical child molest victims act and Gypsy fits the mold perfectly.” (People v. Jeff, at p. 338.) The court reasoned that “ ‘[c]redibility questions arise whenever the defendant denies the victim’s story, explicitly or implicitly suggesting misrecollection or fabrication. If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest victim (or rape victim, or whatever), then the protection against misuse of psychologists’ testimony erected by Bledsoe would be largely dismantled. [(People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099.)]’ ” (People v. Jeff, supra, 204 Cal.App.3d at p. 331.)
Here, the expert testimony was similar in that Blackstock responded in the case-in-chief to hypothetical questions that incorporated much of R. Doe’s testimony about the facts of the case. However, this case lacks the one-two-punch of People v. Jeff, supra, 204 Cal.App.3d at page 338, in that here there was no therapist describing first hand R. Doe’s “symptoms,” followed by an expert stating they were symptoms exhibited by a rape victim. Rather, Blackstock stated with respect to certain behaviors, that they were not atypical or not surprising of a victim of rape. Moreover, the court in People v. Jeff also focused on the timing of the evidence as coming in the prosecution’s case-in-chief, rather than on rebuttal. Appellant recognizes that we have held that this type of expert testimony may be presented in the case-in-chief where necessary to rehabilitate an alleged victim’s credibility. (People v. Housley, supra, 6 Cal.App.4th 947, 956.) R. Doe’s credibility, her inability to recall time frames regarding the rape, her inability to recall how she suffered certain bruises, or how her pants became torn, were used by the defense to attack her testimony. Other information provided by Blackstock, that acquaintance rape is common and that it is not unusual for a victim to tell a friend before reporting to officials were directly relevant to likely misconceptions that the jury might entertain. Blackstock did not know R. Doe, and she did not opine that R. Doe was truthful or that she reacted like a typical rape victim.
Appellant concedes that “in People v. Jeff, one of the issues was whether the prosecution should have been permitted to introduce that testimony as part of their case-in-chief. (People v. Jeff, supra, 204 Cal.App.3d at p. 339.) Appellant acknowledges that courts have since found trauma evidence to be admissible during the prosecution’s case-in-chief and makes no argument in that regard. (People v. Housley, supra, 6 Cal.App.4th at p. 956.)” (Italics added.)
We recognize that the line here is very fine, particularly where the prosecution conducts its examination of the expert by way of a detailed hypothetical incorporating facts related by the victim. Nevertheless, we conclude the court did not err in allowing Blackstock’s testimony regarding RTS and refuting common myths and misconceptions identified by the prosecutor and relevant to the case.
D. Prejudice
Were we to conclude that the trial court had erroneously admitted the evidence of RTS, we would nevertheless conclude any error was harmless. We evaluate the erroneous admission of expert testimony, including that of RTS and analogous evidence, under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Bledsoe, supra, 36 Cal.3d at pp. 251-252.) Appellant has failed to demonstrate that it is reasonably probable a result more favorable to him would have been reached absent such error. (Id.; People v. Watson, at p. 836.) The evidence against appellant was strong, apart from Blackstock’s testimony on RTS. R. Doe testified to appellant’s forcible acts of rape and oral copulation. Her statements to others and her reactions were largely consistent with her account. Further, the medical evidence and DNA evidence supported her account. Appellant has failed to demonstrate prejudice.
IV. Cumulative Error
Appellant contends that the cumulative effect of errors in this case mandates reversal. We have found no error. Consequently, there can be no cumulative prejudicial error.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.