Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE261278, Laura P. Hammes, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
AARON, J.
I.
INTRODUCTION
A jury found Dontay Turner guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)) (count 1), forcible oral copulation (§ 288a, subd. (c)(2)) (count 2), and kidnapping for rape and/or oral copulation (§ 209, subd. (b)(1)) (count 3). With respect to both counts 1 and 2, the jury found true both that Turner kidnapped the victim within the meaning of section 667.61, subdivision (d)(2) and section 667.61, subdivisions (b), (c), and (e), and that Turner personally used a dangerous and deadly weapon or firearm in the commission of the offense, within the meaning of section 667.61, subdivisions (b), (c), and (e). With respect to count 3, the jury found that Turner's intent in kidnapping the victim was to commit both rape and oral copulation, and that Turner personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1) in the commission or attempted commission of the offense. The trial court sentenced Turner to a total term of 37 years to life in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
At the sentencing hearing, the trial court sentenced Turner to 33 years to life in this case, and imposed an additional four-year sentence in another case to be served consecutively to the term imposed in this case.
On appeal, Turner claims that the prosecutor committed misconduct by eliciting inadmissible evidence regarding the impact of the crimes on the victim, and in arguing that the crimes had traumatized the victim. Turner also contends that the trial court erred in admitting in evidence a tape recording of a 911 telephone call that the victim made to report the crimes. Turner further claims that his trial counsel provided ineffective assistance in failing to adequately raise these claims in the trial court. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
On May 15, 2006, at approximately 10:45 p.m. Alison W. (Alison) got on the trolley at the Civic Center station in downtown San Diego. At the next stop, Turner got on the trolley. He sat across from Alison and put on a pair of sunglasses. Alison and Turner rode the trolley for approximately 35 minutes. Alison did not speak with Turner.
Allison got off the trolley at the La Mesa Boulevard stop, and began walking down La Mesa Boulevard toward her boyfriend's apartment. After she had walked for about three blocks, Alison noticed that Turner had also gotten off the trolley and that he was on the other side of the street. Alison continued walking. Approximately two to three minutes later, Alison noticed that Turner was now on the same side of the street, and that he was less than half a block away from her. Alison suspected that Turner was following her. Alison was less than half a block away from her boyfriend's apartment complex. She sped up in an attempt to make it to the apartment before Turner could catch up with her.
Although not material to the disposition of this appeal, the record is unclear as to whether Alison also lived in the apartment. For the sake of clarity, we refer to the apartment as belonging to Alison's boyfriend.
Alison walked through the parking lot of the apartment complex toward her boyfriend's apartment. As she reached the top of a flight of stairs at the apartment complex, Turner grabbed her by the arm and told her not to scream. Turner took out a knife and put it to her throat. Turner led Alison across the parking lot of the complex to a nearby darkened pathway. He ordered Alison to pull down her pants and to orally copulate him. Alison complied out of fear for her life. After Turner ejaculated, Alison began to pull up her pants. Turner told Alison that he was not finished, and indicated that he wanted to have sexual intercourse. Alison said "no" and asked Turner to let her go. Turner showed Alison the knife and asked her whether she was "going to make this difficult." Turner then penetrated Alison's vagina with his penis. Alison believed that Turner ejaculated while his penis was inside her vagina.
After completing the sexual assault, Turner walked Alison toward the apartment complex and released her. Alison ran to her boyfriend's apartment and banged on the door. Alison's boyfriend, Ifeanyi Nzewi, let her in. Alison immediately went into the bathroom and started to cry. Alison asked Nzewi to call the police. Nzewi dialed 911 and gave Alison the phone. Alison reported the rape to the dispatcher. She provided a description of her attacker and indicated where and how the rape had occurred. Police detained Turner shortly thereafter. Alison identified Turner at a curb-side lineup.
Swabs taken from Turner's genitalia contained Alison's DNA and swabs taken from Alison's vagina and cervix contained Turner's DNA.
B. The defense
Turner testified at trial. He stated that he met Alison on the trolley, and that the two spoke with each other while on the trolley. Turner and Alison got off at the La Mesa trolley station together. The two walked together toward Alison's boyfriend's residence. Alison led Turner to the side of a business area and propositioned him for sex. According to Turner, he then engaged in consensual sexual intercourse with Alison. Turner stated that Alison did not orally copulate him. On cross-examination, Turner stated that in propositioning him for sex, Alison said that she wanted to get even with her boyfriend.
C. Rebuttal evidence
La Mesa police officer Angela Desaro testified that she interviewed Turner in the early morning hours of May 16, 2006. When Officer Desaro asked Turner what he had been doing earlier that evening, Turner stated that he had been drinking and that he had passed out. Turner said that he had gotten off the trolley one time to vomit. When Officer Desaro asked Turner whether he had had consensual sex with a female that evening, Turner paused. Turner then said that he had met a female on the trolley and that they had had consensual sex. Turner stated that he believed the woman's name was Laquisha. Turner also told Officer Desaro that the woman had orally copulated him.
III.
DISCUSSION
A. The prosecutor did not commit misconduct in his questioning of the witnesses regarding the impact of the crimes on the victim or in arguing that the crimes traumatized the victim; defense counsel was thus not ineffective for failing to object
Turner claims that the prosecutor committed misconduct in eliciting inadmissible evidence regarding the impact of the crimes on the victim, and in arguing that the crimes traumatized the victim. Turner also contends that his trial counsel was ineffective for failing to adequately object to the prosecutor's questions and argument.
Turner's brief includes a subheading entitled, "The trial prosecutor committed reversible misconduct, by eliciting wholly inadmissible evidence of how the alleged offenses ruined the victim's life and relationships, down to what she could tolerate watching on television, the effect of which was emphasized by the prosecutor in argument. Any lack of objections to all such questions, as well as the lack of a mistrial motion and an objection that this was misconduct, denied appellant the effective assistance of counsel." We interpret this portion of Turner's brief as raising the arguments discussed in the text.
1. Relevant standards of review
Evidence is admitted or excluded at the discretion of the trial court and is reviewed on appeal for an abuse of that discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.) "As a general matter, an appellate court reviews a trial court's ruling on prosecutorial misconduct for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 213.) "A claim of ineffective assistance of counsel presents a mixed question of fact and law, which is generally subject to de novo review, especially where constitutional rights are implicated. [Citation.]" (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.)
2. Factual and procedural background
a. The prosecutor's questioning of the victim and her boyfriend
During the trial, the prosecutor asked Alison, "[A]fter this night and these events . . . has your life changed?" Alison responded, "Yes." The prosecutor continued, "How so?" Defense counsel posed an objection on the ground of vagueness. The trial court sustained the objection and ordered Alison not to answer the question. Despite the court's admonition, Alison stated, "I don't feel safe anymore." The trial court then stated, "Don't answer please. And I will strike that last answer."
The following colloquy then occurred:
"[Prosecutor]: Alison, since these events, do you feel comfortable walking around that apartment complex?
"[Alison]: No.
"[Prosecutor]: Has there been any changes [sic] in the ways in which you go around your apartment complex?
"[Alison]: I don't walk through the parking lot, anymore.
"[Prosecutor]: How do you get to your apartment now?
"[Alison]: I walk through the front entrance of the office, walk all the way around.
"[Prosecutor]: Alison, has your interaction with people changed since this day?
"[Defense counsel]: Objection, your honor. Relevance.
"The court: Sustained."
During the trial, the prosecutor asked Nzewi, "After this event, the events of that evening, did you notice any changes in Alison's demeanor?" Nzewi responded, "Yes, quite a few." The prosecutor asked what changes Nzewi had noted. Nzewi responded:
"Mood swings, she gets sad a lot of times. Sometimes at night she can't sleep, she will cry. A lot of the shows that we liked to watch, the cop series, like CSI and The Shield and all of those, we don't watch anymore because a lot of the episodes have rape victims, and we can't watch that. Sometimes we can't watch the news, if there is any case of rape, that is off again. So it has been difficult, this whole period."
Thereafter, the prosecutor asked Nzewi, "Has it affected the way the two of you get around your apartment complex?" Nzewi responded in the affirmative, and explained how he and Alison had altered the manner in which they walk through his apartment complex in the wake of the incident.
b. The prosecutor's closing argument
The prosecutor began his closing argument to the jury by stating:
"Ladies and gentlemen, when we started this trial two days ago, the first words out of my mouth was [sic] this case was about one thing. That was a woman's worst nightmare and about how that gentleman put Alison W. through her worst nightmare."
Later in the argument, the prosecutor stated, "It goes a little bit back to what we talked about when we were picking a jury, what somebody is going to do in a traumatic situation. You have a choice. You can fight, you can run, or you can succumb. Alison thought her best chance of living was to succumb." The prosecutor also argued that Turner's testimony that Alison had fabricated the nonconsensual aspect of the incident in order to spite her boyfriend was not believable in light all of the suffering that she had to endure as a result of her accusation, including undergoing a humiliating sexual assault examination. Near the end of his argument, the prosecutor asserted that the case presented "every woman's worst nightmare."
3. Governing law
a. Law governing the admissibility of the evidence at issue
"'In a prosecution for forcible rape, evidence is relevant if it establishes any circumstance making the victim's consent to sexual intercourse less plausible.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1114 (Guerra).)
In People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), the Supreme Court held that expert testimony regarding rape trauma syndrome is not admissible to prove that a rape has occurred. However, the Bledsoe court also held that percipient testimony regarding the emotional trauma that a rape victim has suffered is admissible to prove that the victim did not consent to the sexual act. (Id. at pp. 251-252.) In Bledsoe, the court described the percipient testimony regarding the victim's emotional state in the wake of the rape in the following manner: "Melanie's [the victim] mother testified that the next morning [after the rape] Melanie was 'very frightened, sometimes almost hysterical, cried a great deal, almost in shock.' When asked whether Melanie had had any type of 'emotional problems or outbursts' since the incident, her mother responded that she was 'despondent, depressed, nightmares, bouts of crying, inability to make decisions, confusion.'" (Id. at p. 240.) The Bledsoe court noted that this evidence was clearly admissible:
The Bledsoe court indicated that "rape trauma syndrome is . . . 'umbrella terminology,"' that is used to described the "very broad spectrum of physical, psychological and emotional reactions," that rape victims suffer in the wake of the crime. (Bledsoe, supra, 36 Cal.3d at p. 242, fn. 4.)
"We hasten to add that nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution. As discussed in the statement of facts, in this case numerous witnesses ─ in addition to the rape counselor ─ described the severe emotional distress that Melanie exhibited both in the house immediately following the attack and in subsequent weeks, and, as defendant implicitly concedes, there is no question but that such evidence was properly received." (Id. at p. 251.)
The Bledsoe court further observed that Melanie's "extreme emotional distress provided persuasive corroboration of her testimony that she had not consented to the sexual encounter." (Bledsoe, supra, 36 Cal.3d at p. 252.)
b. Prosecutorial misconduct
In People v. Tafoya (2007) 42 Cal.4th 147, 176 (Tafoya), the Supreme Court reviewed the law governing prosecutorial misconduct in the context of a defendant's claim that the prosecutor had engaged in the improper questioning of a witness:
"'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]"
" ' " '[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. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets. . . ." ' " [Citation.]' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
" ' "To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." ' [Citations.]" (People v. Barnett (1998)17 Cal.4th 1044, 1133.)
c. Ineffective assistance of counsel
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] . . . If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
"Counsel is not ineffective for failing to raise futile objections. [Citation.]" (People v. Ramirez (2003) 109 Cal.App.4th 992, 1002 (Ramirez).)
4. The prosecutor did not commit misconduct, and defense counsel was not ineffective for failing to raise a claim of prosecutorial misconduct in the trial court
Defense counsel did not raise a claim of prosecutorial misconduct in the trial court with respect to the prosecutor's examinations of Alison or Nzewi, or the prosecutor's closing argument. In any event, neither the prosecutor's examinations nor the closing argument constituted misconduct.
With respect to the prosecutor's examinations of Alison and Nzewi, the prosecutor could have reasonably believed that evidence pertaining to Alison having altered the ways in which she came and went from the apartment complex in the wake of the incident was relevant to prove that she had not fabricated her story about having been abducted from the complex. (See Guerra, supra, 37 Cal.4th at p. 1114.) The prosecutor could also have reasonably believed that testimony regarding how the incident had emotionally traumatized Alison was admissible. (See Bledsoe, supra, 36 Cal.3d at p. 252.)
The prosecutor's closing argument, in which he referred to the incident as a "woman's worst nightmare," was nothing more than "fair comment on the evidence." (Hill, supra, 17 Cal.4th at p. 819.) The prosecutor's other comments, including his reference to a "traumatic situation," and a "humiliating sexual assault examination," were specifically directed at refuting Turner's claim that the sex acts were consensual. These comments thus also constituted proper argument.
During his closing argument, defense counsel responded to the prosecutor's comments by stating: "I would remind everyone it's not only a woman's worst nightmare, rape, but its a man's worst nightmare, a false rape allegation, easily made, hard to defend against. So we can turn that right around. They are both nightmare scenarios."
With respect to Turner's claim of ineffective assistance of counsel, we have determined that neither the prosecutor's examination of Alison or Nzewi, nor the prosecutor's closing argument, constituted misconduct. Defense counsel could thus have reasonably concluded that the trial court would overrule any objection on the ground of prosecutorial misconduct. Accordingly, we conclude that Turner has failed to demonstrate that trial counsel's performance "fell below an objective standard of reasonableness. . . ." (Lopez, supra, 42 Cal.4th at p. 966; see Ramirez, supra, 109 Cal.App.4th at p. 1002.)
Turner also states that this error cumulates with the other alleged errors he claims the court committed. We reject all of Turner's claims of error on appeal (see also part III.B., post), and, therefore, reject any claim of cumulative error.
B. The trial court did not err in admitting a tape recording of Alison's 911 call; defense counsel was thus not ineffective for failing to adequately object to the admission of the recording
Turner claims that the trial court erred in admitting in evidence a tape recording of the 911 call that Alison made minutes after the crimes. Turner maintains that the admission of the recording violated his constitutional right to confront and cross-examine adverse witnesses. Turner also claims that the recording contains inadmissible hearsay statements, and that the court should have excluded it pursuant to Evidence Code section 352. Turner further contends that the admission of the tape recording violated his right to a fair trial and to due process. Finally, Turner claims that his trial counsel was ineffective for failing to adequately object to the admission of the recording.
Turner's brief includes a subheading entitled, "The trial court erred in admitting the 911 call, and/or admitting it without an adequate record for review of the complicated and subtle questions of law presented by pre-and-post [Crawford v. Washington (2004) 541 U.S. 36 (Crawford)] confrontation issues, as well as issues pursuant to Evidence Code section 352, and federal due process. Trial counsel's failure to preserve all adequate grounds for review denied him his Sixth Amendment right to the effective assistance of counsel." We interpret this portion of Turner's brief as raising the arguments discussed in the text.
1. Standards of review
Whether the admission of the tape recording of Alison's 911 call violated Turner's right to confront and cross-examine adverse witnesses presents a question of law that we review de novo. (Cf. People v. Seijas (2005) 36 Cal.4th 291, 304 [stating that appellate courts should generally apply the de novo or independent standard of review to claims that implicate a defendant's constitutional right to confrontation].) A trial court's ruling on the admissibility of evidence is generally reviewed for an abuse of discretion. (Guerra, supra, 37 Cal.4th at p. 1113 [abuse of discretion standard particularly appropriate in reviewing questions of relevance and undue prejudice].) However, whether erroneously admitted evidence "violated due process is a question of law for the reviewing court . . . ." (People v. Partida (2005) 37 Cal.4th 428, 437.) We review questions of law de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.) We also review de novo Turner's claim of ineffective assistance of counsel. (See part III.A.1., ante.)
2. Factual and procedural background
Prior to opening statements, the trial court held a hearing outside the presence of the jury. At the outset of the hearing, the trial court indicated that it had discussed a number of issues with defense counsel and the prosecutor, off the record. The court stated that it wanted to describe for the record the manner in which it had resolved several of those issues. While the court was describing these issues, the following colloquy occurred:
"[The court]: [T]he People have asked by trial brief to enter the transcript and the tape of the 911 call that was placed by the alleged victim. As I understand it, [the prosecutor] by your evidence you expect to show that the 911 call was placed within a few minutes after the rape. The victim appears emotional on the tape. She's not saying anything beyond what happened to her."
The trial brief is not in the record.
"[The prosecutor]: That is correct, your honor."
"The court: Okay. And based on this, [defense counsel] you are not making any objection.
"[Defense counsel]: That would be over our objection. We don't want it to come in, but we submit to the court's ruling."
"The court: All right. The court will find, based on the offer of proof, it would be a spontaneous declaration, not done in contemplation of a lawsuit or criminal prosecution, but rather to get help to her. [¶] It is my understanding she kind of stumbled into her boyfriend's apartment and then immediately she went into the bathroom and he handed her the 911 call, is that correct?"
"[The prosecutor]: That is correct, your honor."
As noted previously, Alison testified at trial. During her testimony, Alison stated that Turner accosted her at knifepoint at Nzewi's apartment complex, took her to a secluded location, and forced her to have oral and vaginal sex. After sexually assaulting Alison, Turner walked her back toward Nzewi's apartment complex. Turner asked Alison what time it was. Alison looked at her watch and noted that it was two minutes to midnight. Turner then released Alison. Alison stated that she ran to her boyfriend's apartment. Once inside the apartment, she went into the bathroom and began crying. Alison testified that she asked Nzewi to telephone the police. Nzewi dialed the number and handed the phone to Alison.
At this juncture in Alison's testimony, the prosecutor stated that he intended to play the tape recording of Alison's 911 call for the jury. Defense counsel stated that the recording was being played over the defense's objection. The prosecutor played the recording of the 911 call for the jury. The recording begins with an unidentified voice stating that the call was recorded on May 16, 2006 at "12 hours, 1 minute and 53 seconds a.m." Alison is then heard telling the dispatcher that a man followed her off of the trolley and raped her. Alison provided a description of the suspect and indicated how and where the rape had occurred. Alison told the dispatcher that the rape had occurred about five minutes earlier. Throughout the call, Alison sounds like she is on the verge of tears.
After the tape recording was played for the jury, defense counsel stated, "The 911 tape was introduced. I did object to its introduction. I want to make clear that based on our chambers conference and the notes from the District Attorney, it was hearsay, but it was ruled admissible, and that was the basis of my objection."
After the conclusion of the prosecutor's examination of Alison, defense counsel stated that he had no questions.
Nzewi testified that on the night of the incident, Alison came into the apartment, went in to the bathroom, and started to cry. A police officer who responded to the 911 call testified that Alison appeared "distant and in a state of, shock. Not necessarily animated, but she had a ghostly look about her face. Her eyes were glassy. She appeared to me as if she had been through a traumatic incident."
3. Governing law
a. The right to confront and cross-examine adverse witnesses
The Sixth Amendment's Confrontation Clause provides that, " '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' " In Crawford, supra,541 U.S. at page 42, the United States Supreme Court held that the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant [has] had a prior opportunity for cross-examination." (Italics added.) In Davis v. Washington (2006) 547 U.S. 813, the United States Supreme Court clarified that "the Confrontation Clause applies only to testimonial hearsay." (Id. at p. 823.) "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." (Id. at p. 821.)
In People v. Lewis (2006) 39 Cal.4th 970, the California Supreme Court held that a defendant does not suffer a Confrontation Clause violation where a declarant's hearsay statements are admitted at a trial at which the declarant testifies and is available for cross-examination. The Lewis court reasoned:
"According to Crawford, the reliability of testimonial hearsay is best established by 'the crucible of cross-examination.' (Crawford, supra, 541 U.S. at p. 61, 124 S.Ct. 1354.) While Crawford literally says there must be both 'witness unavailability ' and a 'prior opportunity for cross-examination' (id. at p. 68, 124 S.Ct. 1354, italics added), we do not read it to mean that the extrajudicial statements of declarants who are available for current cross-examination must be excluded. Where the declarant is unavailable at trial, the prosecution cannot admit such evidence against the defendant unless the defendant previously had the chance to test its veracity in an adversarial setting. But Crawford cannot reasonably be understood as barring such evidence where the declarant was available for that purpose at trial, and the defendant could have cross-examined him." (People v. Lewis, supra, 39 Cal.4th at p. 1028.)
b. The hearsay rule and the spontaneous statement exception
" 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) The prohibition on the introduction of hearsay evidence is known as "the hearsay rule." (Evid. Code, § 1200, subd. (c).) There are a number of exceptions to the hearsay rule. (Evid. Code, § 1201.)
Evidence Code section 1240 outlines an exception to the hearsay rule for spontaneous statements that are made under certain specified circumstances. That section 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."
In People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522, this court provided an overview of the basis for the spontaneous statement exception, and the necessary prerequisites for admitting a hearsay statement pursuant to this exception:
"Evidence Code section 1240 codified the common law exception for spontaneous statements. 'The foundation for this exception [in the common law] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury.' [Citations.] 'The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief." ' [Citation.] ' "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." [Citation.]' [Citation.]"
Courts have repeatedly held that statements made by a crime victim during a 911 call that is placed shortly after an offense, while the victim is still experiencing the immediate trauma of the offense, may be admissible as spontaneous statements under Evidence Code section 1240. For example, in In re Moore (2005) 133 Cal.App.4th 68 (Moore), the defendant and an accomplice raped a woman. After completing the sexual assault, the defendant and the accomplice dropped the victim off at a trolley station. (Id. at p. 72.) The victim told people at the trolley station that she had been raped. (Ibid.) An unknown man telephoned 911 and relayed information from the victim to the dispatcher, and the trial court allowed a portion of the 911 call to be played at trial. (Id. at p. 73.) The unknown man's voice and the victim's voice could be heard on the tape recording. (Ibid.) The victim also could be heard crying. (Ibid.)
The Moore court concluded that the victim's statements on the tape recording, and those of the victim relayed to the dispatcher by the unknown man, were admissible under Evidence Code section 1240. (Moore, supra, 133 Cal.App.4th at p. 78.) The Moore court noted that the recording was relevant to demonstrate the victim's demeanor during the call, and to corroborate her account of the incident. (Ibid; see also People v. Brenn (2007) 152 Cal.App.4th 166, 173 (Brenn) [statements made by stabbing victim regarding stabbing on 911 call placed minutes after stabbing admissible under Evidence Code section 1240]; People v. Corella (2004) 122 Cal.App.4th 461, 466 (Corella) [statements made by domestic violence victim on 911 call placed minutes after beating regarding events precipitating beating admissible under Evidence Code section 1240].)
c. Evidence Code section 352
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."
"'Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [Citation.].' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
d. Federal due process
"[T]he admission of evidence . . . results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida, supra, 37 Cal.4th at p. 439.) "'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citations.]' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.)
e. Ineffective assistance of counsel
As noted previously, a criminal defendant raising a claim of ineffective assistance of counsel must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness" (Lopez, supra, 42 Cal.4th at p. 966), and that he suffered prejudice from counsel's performance. (See part III.A.3.c., ante.) However, trial counsel is not required to make evidentiary objections that counsel reasonably believes will be overruled. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1080; People v. Samayoa (1997) 15 Cal.4th 795, 848; [rejecting ineffective assistance of counsel claim where "[t]he record fails to demonstrate affirmatively that counsel's omissions were not based upon a rational tactical basis, such as the reasonable assumption that such objections would be overruled"]; accord People v. Slaughter (2002) 27 Cal.4th 1187, 1222 [finding no ineffective assistance where defense counsel reasonably could have concluded that requesting jury instruction would have been futile].)
4. Application
We consider each of Turner's arguments pertaining to the admission of the tape recording of Alison's 911 call. First, with respect to Turner's claim that the trial court's admission of the tape recording violated his federal constitutional right to confront and cross-examine witness, Turner has forfeited this contention because he did not raise it in the trial court. (Tafoya, supra, 42 Cal.4th at p. 166 [defendant forfeits Confrontation Clause claim by not raising it in the trial court].) In any event, the claim is without merit. Alison testified at trial, and Turner had the opportunity to cross-examine her regarding the statements she made during the 911 call. Accordingly, Turner suffered no violation of his right to confront or cross-examine adverse witnesses. (See People v. Lewis, supra, 39 Cal.4th at p. 1028.)
With respect to Turner's hearsay argument, we assume for purposes of this decision that Turner adequately preserved his hearsay objection in the trial court. We agree with Turner that Alison's statements during the 911 call constitute hearsay. We must therefore consider whether the trial court abused its discretion in determining that her statements fell within the spontaneous statement exception to the hearsay rule.
On the tape recording, Alison describes the kidnapping and the sexual assault that she had just endured. She explains how Turner followed her from the trolley, abducted her at knifepoint, and raped her. There can thus be little question that her statements, "narrate, describe, or explain an act, condition, or event perceived by the declarant . . . ." (Evid. Code, § 1240.) The trial court could reasonably have relied on both the fact that Alison made the statements within minutes of the rape ─ a highly stressful event ─ and that her demeanor on the tape recording reflects a state of shock, in determining that Alison made the statements "spontaneously while [she] was under the stress of excitement caused by such perception." (Ibid.) While some of Alison's statements are made in response to questioning by the 911 operator, "a factor militating against spontaneity" (Brenn, supra, 152 Cal.App.4th at p. 173), "that factor is not dispositive." (Ibid.)
The trial court also could have reasonably determined that Turner's kidnapping and sexual assault of Alison constituted an "occurrence startling enough to produce . . . nervous excitement," that Alison's statements during the 911 call were made while that excitement "dominate[d] and [her] reflective powers . . . [were] in abeyance," and that her statements "relate[d] to the circumstance of the occurrence preceding it." (People v. Ramirez, supra, 143 Cal.App.4th at p. 1522.) Alison's statements are similar to those at issue in other cases in which appellate courts have upheld the admission of hearsay statements under Evidence Code section 1240. (Moore, supra, 133 Cal.App.4th at p. 78; Brenn, supra, 152 Cal.App.4th at p. 173; Corella, supra, 122 Cal.App.4th at p. 466.) We conclude that the trial court did not abuse its discretion in determining that Alison's statements during the 911 call were admissible as spontaneous statements, pursuant to Evidence Code section 1240.
Turner's claim that the trial court should have excluded the tape recording of the 911 call pursuant to Evidence Code section 352 is forfeited because he did not raise this argument in the trial court. (Evid. Code, § 353.) Further, in light of the fact that the recording was highly probative on the issue of whether Alison consented to the sexual encounter, the trial court would not have abused its discretion in overruling an Evidence Code section 352 objection, if Turner had made one in the trial court.
Having concluded both that the trial court properly admitted the recording of Alison's 911 call under state law, and that Turner suffered no violation of his federal constitutional right to confront adverse witnesses, we see nothing about the admission of the tape recording that rendered the trial fundamentally unfair so as to offend due process. Alison's immediate reporting of the incident and her emotional state in doing so were relevant to the issue of consent. There were clearly "permissible inferences the jury [could have] draw[n] from the evidence." (People v. Albarran, supra, 149 Cal.App.4th at pp. 229-230.) In addition, Alison's trial testimony was consistent with her statements during the 911 call. We therefore reject Turner's claim that introduction of the tape recording rendered his trial fundamentally unfair. (Ibid.)
With respect to Turner's claim of ineffective assistance of counsel, we have concluded that none of Turner's arguments concerning the admissibility of the tape recording have any merit. Trial counsel thus could reasonably have concluded that the trial court would have overruled any objections based on these arguments if Turner had raised them in the trial court. We therefore reject Turner's claim of ineffective assistance of counsel. (See People v. Mitcham, supra, 1 Cal.4th at p. 1080.)
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR McCONNELL, P. J., IRION, J.