Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC754562
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
After a jury trial, defendant Tamiko Nikia Turner was found guilty of two counts of rape by force (Pen. Code, § 261, subd. (a)(2)) and one count of oral copulation by force (§ 288a, subd. (c)(2)). The jury also found true the allegations that defendant had committed the offenses against more than one victim (§ 667.61, subds. (b) & (e)). The trial court sentenced defendant to a total term of 40 years to life consecutive to a determinate sentence of eight years.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the convictions should be reversed because (1) he was denied due process since more than three years passed between the time he was identified as the source of DNA found on the rape victims and the time he was charged with the offenses (hereafter referred to as precharging delay); (2) trial counsel was ineffective in failing to object to the testimony of Sexual Assault Response Team (SART) nurse Karen Casada that the injuries she observed on victim J. were caused by force or blunt force trauma; (3) trial counsel was ineffective in failing to object to the testimony of SART nurse Patricia Crane that the injuries she observed on victim M. were consistent with M.’s history of sexual assault. For the reasons stated below, we find no merit in defendant’s contentions and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The first amended information filed on March 21, 2008, charged defendant with three felony offenses, including rape by force of victim M. on or about July 26, 2000 (§ 261, subd. (a)(2); count 1), oral copulation by force of victim M. on or about July 26, 2000 (§ 288a, subd. (c)(2); count 2), and rape by force of victim J. on or about December 3, 2001 (§ 261, subd. (a)(2); count 3). As to each count, the first amended information alleged that defendant had committed the offenses against more than one victim (§ 667.61, subds. (b), (e)).
B. Pretrial Motion to Dismiss
Defendant’s pretrial motions included a motion to dismiss the information on the ground that he had been denied due process as a result of precharging delay. According to defendant, there was no justification for the delay of over three years from August 2003, when the San Jose Police Department was informed that a DNA match had been made between defendant’s DNA profile and the DNA profiles from the sexual assaults involving M. and J., until January 2007, when a complaint charging defendant with those sexual assaults was filed. Defendant also argued that he had been prejudiced by the delay because witnesses and evidence had been lost and the victims’ memories had faded.
The trial court took the motion to dismiss under submission, finding that “it is proper to hear the trial and the ability of the witnesses to recollect in determining any potential prejudice....” After the trial concluded, the trial court denied the motion to dismiss on March 13, 2009.
C. Trial Evidence
1. Victim M.
Victim M. was 43 years old and worked at a restaurant in July 2000. She was sexually assaulted on July 26, 2000, shortly after leaving the restaurant between 9:45 p.m. and 10:00 p.m. M. made an in-court identification of defendant as the man who assaulted her that night.
In her testimony, M. recalled the events that led up to the assault. On her way home from the restaurant, M. stopped at a 7-Eleven store to buy cigarettes and beer. M. had a large amount of cash, including $100 in tips and $400 or $500 that she had received from a coworker who had repaid a loan made to her by M. When M. left the 7-Eleven store, she drove to her apartment complex and went to her mailbox. By then, the time was about 10:30 p.m.
M. was about to leave her mailbox when defendant grabbed her and choked her from behind. He was a 19- or 20-year-old Black male wearing a black hat and a red shirt. Defendant told her to shut up or he would kill her. He also told her to take off her clothes, then forced her to the ground. M. was wearing black pants, a white blouse, and a restaurant apron. Defendant took off her pants and underwear, licked her vagina, got on top of her, and put his penis inside her. M. believes that he ejaculated inside her because she felt something cold.
After defendant ejaculated, they both put on their clothes. Defendant then took M.’s wallet with her money and ran away while she was screaming. M.’s husband arrived at that time and she told him that she was going to call the police because she had been robbed. M. did not tell the first police officer who responded that she had been sexually assaulted because she did not want her husband to know about it. She also told the police officer that defendant had taken $100 because, in that moment, she did not remember exactly how much cash she had.
The next morning, however, M. told the apartment manager that she had been sexually assaulted. The manager called the police and a second officer came to M.’s home. When the second officer questioned M., she told him that she had given defendant $65. About a week later, M. told a detective that she had an additional $400 in her purse. M. denied that defendant had paid her for sex.
Police Officer Matthew Kurrle testified that on July 26, 2000, he responded to M.’s complaint that she had been robbed. After Officer Kurrle arrived at M.’s apartment complex at about 11:50 p.m., M. told him that she was walking on the pathway to her apartment when a man came up behind her, wrapped his arms around her neck and upper body, and told her to shut up or he would kill her. He then grabbed her purse containing $100 and fled the apartment complex. M. described the man who robbed her as a Black male about 25 years old who was approximately five feet nine inches tall; weighed about 165 pounds; and was wearing a red hooded sweatshirt and dark pants. Officer Kurrle did not observe any injury to M.’s neck.
The police officer who contacted M. the next day, July 27, 2000, was Officer Josh Bubnis, who interviewed M. in the office of her apartment complex. M. told him that a man had grabbed her around the neck when she was near her mailbox, pushed her to the ground, pulled her panties off, stuck his tongue in her vagina and licked her, and then put his penis inside her. M. also said that she felt a “cold wet feeling” inside of her vagina. The man then asked M. for all of her money and she gave him $65 in cash. M. described the man as a Black male, approximately five feet 10 inches tall, wearing a red hooded sweatshirt.
Officer Bubnis further recalled that M. said she had changed into different clothing after the assault so her husband would not think anything was wrong. She did not report the rape initially because she was embarrassed and scared. Officer Bubnis collected the clothing that M. had worn during the assault, including her shirt and black pants, and put them in a paper bag that was later booked into “central supply.” Officer Bubnis then took M. to the SART unit at Valley Medical Center.
Police Officer Jermain Thomas testified that he assisted Officer Bubnis in his investigation on July 27, 2000. He booked the SART kit with M.’s name on it “into central supplies evidence” after receiving the kit from the SART nurse. The SART nurse who examined M. was Patricia Crane.
In her testimony, Patricia Crane stated that she has been a professor of nursing at the University of Texas Medical Branch School of Nursing since 2005. She became a registered nurse in 1975 and began working as a SART nurse in 1990. The total number of SART exams that she has performed is probably 300 to 400. The trial court found that Crane was qualified as an expert witness “in the area of forensic examination in sexual assault injuries.”
Next, Patricia Crane performed a SART exam of M. on July 27, 2000. During the exam, M. gave a history of having been assaulted by a Black male in the parking lot of her apartment building. The man grabbed and choked M. and told her not to move or he would kill her. He licked M.’s vagina, penetrated it with his penis, ejaculated inside her, and did not use a condom. He also orally copulated her. M. had consensual sex with her husband during the two days before the assault, on July 25 and July 26. When Crane physically examined M. she observed areas of redness on her right forearm and red marks on her neck. The genital examination included placing swabs deep inside the vagina and taking photographs to aid visualization of injuries. Crane observed an area of redness near the vaginal opening, which was documented in photographs shown at trial.
Patricia Crane placed the vaginal swabs in the SART kit, which she identified at the time of trial, and gave the kit to a police officer after completing her examination. Crane also prepared a report in which she wrote that M.’s injuries, consisting of red abrasions on the right wrist, left neck, and vaginal opening, were consistent with M.’s history and timing. Crane also testified that the injuries she found could be consistent with consensual sexual intercourse. She did not have an opinion as to whether the injuries were the result of force.
Detective Eric Dragoo stated that he began a follow-up investigation of M.’s assault on July 31, 2000, by going to the crime scene and taking photographs. He also collected a surveillance videotape from the 7-Eleven store, which depicted M. near the cashier at 10:50 p.m. on the day the crime occurred. The 7-Eleven video tape is no longer available.
M. met with a police artist for the San Jose Police Department, Gilbert Zamora, on July 31, 2000. Officer Zamora testified that he had interviewed M. for the purpose of drawing a sketch of her assailant. He made an in-court identification of the sketch he prepared during his interview of M.
Defendant testified to a different version of his encounters with M. He recalled that he first met M. on July 26, 2000, at her apartment complex. At that time, defendant was about 24 years old and was outside smoking a cigarette with his friends. Defendant saw M. walking by and approached her after she entered a laundry room in order to make a drug sale, since his friends had told him that she was a drug user. M. gave defendant $65 and he gave her a bag of “crystal meth.” Defendant also taught M. how to use a “crystal pipe” to smoke the drug. When M. stopped smoking, defendant encouraged her to orally copulate him by taking out his penis and stroking it in front of her while placing his hand on her shoulder “to get her to go down.” Defendant ejaculated in M.’s mouth despite her objection.
Defendant’s next encounter with M. took place later the same day, during the night of July 26, 2000, in the same location as their first encounter. M. waved defendant over to the laundry room and when he got there, she ask to buy the drug that she had purchased from him earlier that day. Defendant offered to give her drugs in exchange for sexual intercourse. M. agreed, but told him that she wanted to smoke the drug first. She then performed oral copulation on defendant and masturbated him while wearing her panties. After M. looked out the window and saw that her husband was coming, she pulled up her pants, grabbed her purse and left. Defendant took the wallet that M. had left behind. When M. returned to look for the wallet, which contained about $100, defendant denied having it.
2. Victim J.
Victim J. testified regarding her recollection of being sexually assaulted on December 3, 2001, when she was 52 years old. Before she encountered defendant, J. had been drinking with a girlfriend in Morgan Hill for several hours and was intoxicated. J. and her boyfriend then took a bus to San Jose. After they got off the bus to go see some friends, J. and her boyfriend had a disagreement and she walked away in the vicinity of Monterey Road. At about 7:30 p.m., while J. was walking towards her cousin’s house, a Black male driving a dark SUV-type vehicle pulled over and asked J. if she wanted a ride. The man was younger than J. and seemed nice and friendly. J. felt she could trust him so she got into the car’s front passenger seat on the understanding that he would take her to her cousin’s house.
However, the man drove to a field or construction site, stopped the car and put his forearm against J.’s throat. He told J. to pull down her pants and she complied in order not to get hurt. He then put his penis inside her vagina. At some point, J. felt wetness on her underwear. J. was subsequently able to get out of the car and pull her pants back up. The man drove off after nearly hitting her with the car. When J. saw a house nearby with Christmas lights, she ran to the house to ask to use the telephone because she had just been raped. The police officer who responded to the house interviewed J. Later that evening, J. was taken to a hospital where a medical examination was performed. The hospital also kept her underpants.
The officer who responded to J.’s call on December 3, 2001, was Police Officer Joseph Fleming. J. was slightly intoxicated and had blood on her hand, the left side of her face, and her lip. She told Officer Fleming that she had been forcibly raped by a Black male in his 20’s who was wearing a black skull cap and driving a Bronco or a Blazer. J. also said that she had been walking on Monterey Road (which Officer Fleming acknowledged was known for prostitution) when the man pulled up and asked her if something was wrong and she replied that she was trying to find the No. 68 bus to go home. The man offered her a ride, but when he drove away from Monterey Road she became frightened and tried to jump out. After he stopped the car, he grabbed her by the throat and began choking her. J. told him to let go and she would “do it.” When he released his hold, J. tried to get out of the car but he slammed his forearm into her throat and pinned her on the seat. J. complied when he told her to pull her pants down because she was afraid he was going to kill her. The man then put his penis inside her vagina and eventually ejaculated on her genitals and underwear. Afterwards, he told her to get out of the car, which she did. When he drove off, J. had to jump out of the way to avoid being struck by his car.
After interviewing J., Officer Fleming took her to the hospital for a SART exam, which was performed by Karen Casada. Casada testified that she is a registered nurse with a bachelor of nursing degree and has worked as a nurse for 18 years. Her employment history includes eight years as an emergency room nurse and 10 years as a forensic nurse examiner for the Santa Clara County SART team. At the time of trial, she had performed 183 SART examinations. The trial court ruled that Casada was qualified to testify as an expert “in the area of sexual assault examination.”
Karen Casada performed the SART exam of J. at 11:30 p.m. on December 3, 2001. J. told her that she had been assaulted between 7:30 and 8:00 p.m. by a Black male, 28 years old, wearing a bandanna on his head and dark clothing. J. also said that he had penetrated her vagina with his penis, ejaculation had taken place, and her underwear felt wet. He had also grabbed her by the throat and upper arms and choked her. Casada observed that J.’s voice was hoarse and J. had injuries, as indicated in photographs, including bruising in the pattern of a bra strap or shirt on her back. The bruising was caused by the application of force, according to Casada, in which J. was pushed against a surface or her t-shirt was forcefully pulled. Casada also identified photographs depicting bruises and abrasions on J.’s neck, shoulder, upper arm, and wrist.
The gynecological exam performed by Karen Casada revealed bruising and increased redness and abrasion in the vaginal area. Casada also saw bruising of the cervical area, as shown in a photograph she took, that in her opinion was caused by “blunt force trauma.” She believed that these injuries were consistent with the history that J. had given regarding the assault. However, Casada could not testify as to whether the blunt force trauma injuries were caused during consensual or nonconsensual sex or during the assault.
The SART exam also included taking vaginal swabs and collecting J.’s underwear and placing them in the SART kit, which Casada identified at the time of trial. Officer Fleming collected the SART kit after the exam and booked it into evidence. Officer Fleming also identified photographs of J. that he took on December 3, 2001, that depicted blood on her cheek and lip.
Defendant testified regarding his recollection of encountering J. on December 3, 2001. He was driving on Monterey Road in a “Tahoe Suburban” in an area frequented by prostitutes when he picked up a woman. Defendant was smoking marijuana in his car and she jumped in after he said she could “hit this weed if you want to.” They smoked marijuana together and she tried to get him to take her to Gilroy, but he refused. She also tried to get him to take her the No. 68 bus stop. Defendant offered to pay her $20 for sex so she could take a cab. She agreed, and they had sexual intercourse without defendant ejaculating inside her. Afterwards, defendant told her that he did not have the money. She started to yell and scream and spit on defendant, so he slapped her hard on her mouth and pushed her out of the car. Defendant then drove off.
3. Further Investigation
Nanci Marte is a criminalist for the Santa Clara County Crime Laboratory whose duties include DNA analysis. The parties stipulated that Marte is an expert “in the extraction of DNA and the analysis of DNA as well as screening of DNA.” She received items for testing on August 7, 2000, that included two sexual assault evidence collection kits and a paper bag containing M.’s black pants. Another criminalist tested a piece of the black pants and found that semen from an unknown male was present.
Police Officer Richard Bravo was assigned to do a follow-up investigation regarding the December 3, 2001 assault of J. one day later. He had telephone contact with J. and made appointments with her for follow-up interviews, but she did not keep those appointments. He closed the file in January 2002 due to the lack of leads and because J. was not cooperative.
On August 21, 2003, Officer Bravo received a telephone call from the county crime lab notifying him that there was “a possible DNA match from a cold case from 2001.” Officer Bravo then obtained buccal swabs from defendant and turned them into the crime lab. The same day he turned the swabs in was the last day of his assignment in the sexual assaults unit. Officer Bravo briefed his unit sergeant about the case so that it could be passed on to a follow-up investigator. To Officer Bravo’s knowledge, the follow-up investigator did not receive the case until January 2007.
Criminalist Nanci Marte performed a DNA analysis on defendant’s swabs in 2003. She determined that the “DNA profile for the unknown male from the black pants matches the DNA profile for [defendant], so therefore, unless [defendant] has an identical twin, he’s the source of the semen on [M.’s] black pants.” Also in 2003, Marte performed DNA analysis on the vaginal swabs and underwear obtained from J. She determined that defendant was the source of the semen on J.’s underwear, unless he had an identical twin.
Russell Chubon was a detective in the sexual assault unit who in January 2007 was assigned to do a follow-up investigation of the cases involving M. and J. He interviewed M. and J. on January 8, 2007. He also contacted defendant and obtained buccal swabs from him. When Detective Chubon interviewed defendant on January 17, 2007, he recorded the interview and placed the recording on a CD that was later played for the jury. The transcript of the interview includes defendant’s denial that he had assaulted M. or J., his claim that he knew nothing about the assaults, and his telephone conversation with his wife while he was alone in the interview room, as indicated in the following excerpt:
“[DEFENDANT]: Man, I, I am telling you, I don’t know anything about, like, what your talkin’. [¶] But I don’t know nothin’ about no 50-year-old ladies, and
“CHUBON: Okay, well, 45-- [¶]... [¶]
“[DEFENDANT]: 40, not even in there.
“CHUBON: So you never... sexually assaulted this, some Asian lady...
“[DEFENDANT]: I never
“CHUBON: By the mailboxes?
“[DEFENDANT]: I didn’t....
“CHUBON: Okay.
“[DEFENDANT]: Sexually assault nobody. [¶]... [¶]
“CHUBON: Never picked up, a Hispanic lady over on Monterey, and then you assaulted her in your truck?
“[DEFENDANT]: No, I didn[’t].” [¶]... [¶]
“CHUBON: When we talk to your wife, ... what are we gonna talk about afterwards, the same thing, over and over and over? [¶]
“[DEFENDANT]: Wanna, I need to talk to my wife... [¶]... [¶]
“CHUBON: Okay, I’ll... see if I can hook a phone up.... Okay, here we go. [¶]... [¶]
“[DEFENDANT]: Yeah, you doin’, how you doin’? They’re still gonna do all the stuff? Man. Yeah. Nothin’, it’s just, man, psh--I don’t know. I love you, Mom. Sh--man. It’s fucked up, man. It’s fucked up. I’m sorry, bad. And I’m just sorry.... Uh, it’s alright, man because I like done some fucked shit to you in the past. Well, not to you, ‘cause I wasn’t really with you yet. But I done like, one fucked up thing.... [I] just fucked up on, on, on a situation, man....”
During the interview, Detective Chubon also showed defendant the DNA reports indicating that defendant was the source of the semen on M. and J., as well as the suspect sketch that Officer Zamora had prepared with the aid of M. When Detective Chubon left the interview room, he observed defendant through “a recording device where you can see in real time what the suspect is doing in the interview room[.]” He saw defendant cover himself with his jacket and bend over the table.
In 2007, Nanci Marte performed DNA analysis on another group of buccal swabs obtained from defendant. She again determined that defendant was the source of the semen on M.’s black pants.
D. Jury Verdicts and Sentencing
On February 5, 2009, the jury rendered its verdict, finding defendant guilty on all three counts. The jury also found true the allegations that defendant had committed the offenses on more than one victim.
The sentencing hearing took place on March 13, 2009. Before sentencing defendant, the court held a hearing on his motion to dismiss on the ground of precharging delay. The court denied the motion after finding, based on all of the trial evidence, that the precharging delay had caused no actual prejudice to defendant’s ability to present a defense. Thereafter, the trial court sentenced defendant to a total term of 40 years to life, consecutive to a determinate term of eight years.
III. DISCUSSION
A. Precharging Delay
Defendant’s first contention on appeal is that the trial court erred in denying his motion to dismiss the information on the ground of precharging delay, because the delay resulted in a violation of his due process rights.
In People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), the California Supreme Court stated the following general standard for determining whether a defendant’s due process rights were violated by precharging delay: “Although precharging delay does not implicate speedy trial rights, a defendant is not without recourse if the delay is unjustified and prejudicial. ‘[T]he right of due process protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.’ [Citation.] Accordingly, ‘[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.’ [Citation.]” (Id. at p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.)
Nelson also clarified the California standard for establishing a due process violation based on precharging delay. “[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant.” (Nelson, supra, 43 Cal.4th at p. 1255.) “Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.” (Id. at p. 1256.)
Whether the precharging delay was unreasonable and prejudicial to the defendant is a question of fact. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1330.) Accordingly, the standard of review is whether the trial court’s order denying the defendant’s motion to dismiss on the ground of precharging delay is supported by substantial evidence. (Ibid.)
In the present case, the trial court denied defendant’s motion to dismiss after finding that the delay had not been prejudicial to defendant’s ability to present a defense. The trial court reasoned as follows: “I have heard the evidence in this case. It is still fresh in my memory. I’m going to deny the motion to dismiss for violation of due process based on prosecution delay basically for the reason that I don’t see any actual prejudice. [¶] After listening to the case on behalf of the defendant, a fairly long period of time has passed since the crimes occurred. [¶] However, the general key points of the case remain the same and are consistent. Two victims that testified at the time of the initial crime. They gave a description of the defendant and a description of the crime, and the key evidence was DNA for purposes of identification. [¶] Also one of the witnesses gave a description that was eventually memorialized at that time by a police sketch that also remains the same. The DNA evidence did not appear to be contaminated or in any way compromised by the passage of time. [¶] [There does] not appear to be any prejudice as to the defendant’s ability to present a defense. [Defendant] took the stand, testified. He had a very detailed memory of the events in question. I think it is fair to say the jury did not believe that detailed memory, but he certainly did not indicate that there was any loss of memory as to critical issues in the case. [¶] Instead he gave a detailed description of the events in the case, so I just don’t find a showing of actual prejudice on behalf of the defense. [¶] This was a case where two victims testified. There was no identification of that person until several years ago when the DNA came. That DNA evidence was the same in 2003 as [it] was in 2009 at this trial. That will be the court’s ruling.”
Defendant argues that the trial court erred because he suffered actual prejudice as a result of the precharging delay. While defendant does not assert that any evidence was lost as a result of the delay, he maintains that “the real prejudice... was that the delay afforded the prosecution the opportunity to exploit [defendant’s] earlier refusal to provide a statement about the assaults and resulted in the creation of impeachment evidence the prosecution otherwise would not have had [defendant] been charged in a timely manner.” The impeachment evidence to which defendant refers is his statements during the January 17, 2007 interview with Detective Chubon. Defendant explains that “[t]his evidence unquestionably impacted his ability to defend himself for it cast a long shadow over the credibility of his testimony. It allowed the prosecutor to argue that [defendant] had made an admission during the 2007 taped statement when he told his wife during a phone call that he ‘had fucked up on a situation.’ ”
During Detective Chubon’s testimony outside the presence of the jury in connection with defendant’s challenge to the voluntariness of his recorded statements, Detective Chubon acknowledged that Officer Bravo’s report indicated that when Officer Bravo contacted defendant on September 9, 2003, defendant said that he did not want to answer any questions and did not want to give a sample without first talking to his attorney.
The People respond that defendant has failed to make an adequate showing of actual prejudice, since his defense was not weakened by the dimming of memories, the loss of witnesses, or the loss or destruction of material physical evidence. They note that victims M. and J. both testified as to their memories of the relevant events, as did defendant, and there was also documentary evidence prepared at the time of the crimes, including police reports and SART examinations. Additionally, the People note that there was no loss or destruction of material physical evidence, since the evidence obtained in 2000 and 2001, including the DNA swabs and the victims’ clothing, was available at the time of trial for further testing by defendant. As to defendant’s claim that the precharging delay allowed the prosecution to obtain an incriminating statement from defendant in 2007, the People assert that “[t]he prejudice contemplated by the due process clause deals with prejudice from being able to defend oneself, not prejudice from additional investigation.”
At the outset, we note that the People do not contend that there was any justification for the precharging delay of more than three years. However, the initial burden remains on defendant to show actual prejudice. (People v. Catlin, supra, 26 Cal.4th at p. 107.) We find that defendant has not met this burden. Actual prejudice does not arise from the prosecution’s ability to conduct further investigation and recover additional evidence as time goes on, but from the weakening of the defendant’s ability to present a defense. Thus, where, as here, the prosecution of the defendant was the result of a “cold hit, ” i.e., a DNA match made years after the offenses occurred, subsequent investigation and evidence (such as an incriminating voluntary statement made by the defendant upon being confronted with the DNA match), does not alone cause prejudicial delay. (See Nelson, supra, 32 Cal.4th at pp. 1256-1257.)
Having reviewed the record in its entirety, we find that substantial evidence supports the trial court’s finding that the precharging delay did not cause actual prejudice to defendant by weakening his ability to present a defense, since, as defendant implicitly concedes, there was no loss of any material evidence or any negative impact on defendant’s ability to defend against the prejudicial effect of his January 17, 2007 statements.
B. Ineffective Assistance of Counsel
Defendant also contends that trial counsel was ineffective in failing to object to the testimony of the SART nurses, Karen Casada and Patricia Crane, because their testimony regarding the cause of the victims’ physical injuries was outside their scope of expertise.
We review a claim of ineffective assistance of counsel under a well established standard. “To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent that the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.)
Defendant argues that trial counsel was ineffective in failing to object to the opinion testimony of SART nurse Karen Casada that (1) the bruising on J.’s back in the pattern of a bra strap was caused by “ ‘force either from being pushed against a surface or the t-shirt being pulled forcefully causing pressure to the back to cause those injuries’ ”; and (2) the bruising of J.’s cervix was caused by blunt force trauma.
According to defendant, trial counsel should have objected to Karen Casada’s testimony because Casada was not qualified to give an opinion regarding the causation of J.’s injuries, since she is neither a physician nor a biomechanical engineer. Defendant further argues that there was no reasonable tactical explanation for trial counsel’s failure to object to the improper opinion testimony and the error was prejudicial, explaining that the case “boiled down to a credibility contest” between J. and defendant as to whether the sex was consensual, and Casada’s improper opinion testimony “could only have tipped the balance in favor of conviction.”
The People respond that Casada had sufficient expertise as an examiner in sexual assault cases to render an expert opinion on her findings. They also contend that defense counsel had a valid tactical reason for not objecting to Casada’s opinion testimony, since Casada acknowledged that J.’s injuries could have been caused by means that did not involve defendant--the bruising could have been caused by a tight bra, while the vaginal injuries could have occurred during consensual sex.
Defendant makes a similar argument regarding the opinion testimony of SART nurse Patricia Crane that her findings on her physical examination of M. were consistent with the history of sexual assault given by M. He claims that this opinion was beyond the scope of Crane’s expertise, since there was no showing that she had training regarding the “medical cause of a particular physical injury to a sexual organ....” For that reason, defendant asserts that trial counsel was ineffective in failing to object to Crane’s improper opinion testimony.
Defendant further asserts that trial counsel’s error was prejudicial, because Patricia Crane’s testimony also constituted improper testimony regarding defendant’s guilt or innocence and M.’s credibility. According to defendant, “Crane’s testimony that [M.’s] injuries were consistent with her history is nothing more than an opinion that [M.] was a truthful and a credible witness.”
The People disagree, pointing to Patricia Crane’s extensive experience in sexual assault examinations as qualifying her to render an opinion on “the physical manifestations of a sexual assault.” The People also argue that Crane’s testimony did not include an opinion regarding M.’s truthfulness. Further, the People maintain that trial counsel had a tactical reason not to object to Crane’s opinion testimony, since Crane testified that the redness near M.’s vaginal opening was also consistent with consensual sexual intercourse, and M. had reported having sexual intercourse with her husband a day or two before defendant assaulted her.
We are not convinced by defendant’s arguments regarding ineffective assistance of counsel. First, we determine that under the rules applicable to the scope of expert testimony, the SART nurses were qualified to give the subject opinion testimony.
Evidence Code section 720, subdivision (a) provides, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” Further, “ ‘ “[w]here a witness has disclosed sufficient knowledge of the subject to entitle his [or her] opinion to go to the jury, the question of the degree of his [or her] knowledge goes more to the weight of the evidence than its admissibility.” ’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 322.)
Both Karen Casada and Patricia Crane testified that they were registered nurses who had extensive training and many years of experience in performing SART examinations, and the trial court properly found that both SART nurses were qualified as expert witnesses in the area of sexual assault examinations. We therefore determine that Casada was qualified to provide an opinion, based on her training, experience, and her SART examination of J., as to the cause of J.’s physical injuries, while Crane was similarly qualified to give an opinion as to whether her examination findings were consistent with M.’s history of sexual assault.
We do not agree with defendant’s contention that only a physician or biomechanical engineer could properly provide an opinion as to whether an alleged victim’s injuries were caused by force or whether the alleged victim’s history of sexual assault was consistent with the findings on physical examination. This court has previously observed that “[t]here is a statutory scheme addressing the function of SART exams in connection with the criminal investigative process. By legislative enactment, one hospital training center in the state was established for the purpose of, inter alia, ‘train[ing] medical personnel on how to perform medical evidentiary examinations for victims of... sexual assault.... ” (People v. Uribe (2008) 162 Cal.App.4th 1457, 1477.) The statutory scheme further provides that the medical personnel who are qualified to perform SART examinations include nurses, and that “[t]o ‘perform a medical evidentiary examination’ means to evaluate, collect, preserve, and document evidence, interpret findings, and document examination results.” (§ 13823.93, subd. (a), italics added.)
Moreover, the California Supreme Court has stated that “[q]ualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion. (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142 [‘Because of the dramatic growth of diverse interdisciplinary studies in recent times, often individuals of different nonphysician professions are called upon to give medical opinions or at least opinions involving some medical expertise’]; see People v. Fierro (1991) 1 Cal.4th 173, 224; Brown v. Colm (1974) 11 Cal.3d 639, 645 [referring to an ‘unmistakable general trend in recent years... toward liberalizing the rules relating to the testimonial qualifications of medical experts’].)” (People v. Catlin, supra, 26 Cal.4th at pp. 131-132.)
Accordingly, we find that trial counsel did not provide ineffective assistance by failing to object to the opinion testimony of either Karen Casada or Patricia Crane, since their opinion testimony was admissible. We also find that Crane’s testimony did not constitute an improper opinion regarding M.’s credibility, since, as the People point out, Crane did not testify that she believed M. to be telling the truth.
Even assuming that trial counsel should have objected to the opinion testimony of Karen Casada and Patricia Crane, we would find the claim of ineffective assistance to lack merit. “Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.” (People v. Hayes (1990) 52 Cal.3d 577, 621.) In other words, “ ‘failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.... A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Consequently, “[b]ecause after a conviction it is all too easy to criticize defense counsel and claim ineffective assistance, a court must eliminate the distorting effects of hindsight by indulging ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citations.]’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 158.)
In the present case, we can discern tactical reasons for trial counsel’s failure to object. Both Karen Casada and Patricia Crane provided testimony that was helpful to the defense theory that defendant’s sexual encounters with the victims were consensual. In her testimony, Casada conceded that she unable to confirm that the blunt force trauma injuries to J. were caused during either nonconsensual sex or the sexual assault described by J. And Crane testified that the injuries she found in her physical examination of M. could be consistent with consensual sexual intercourse. Defendant therefore has not overcome the presumption that trial counsel’s conduct was sound trial strategy. (People v. Mendoza, supra, 24 Cal.4th at p. 158.)
For these reasons, we find no merit in defendant’s claim of ineffective assistance of counsel.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., DUFFY, J.