Opinion
A129598
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. RONELL DYWANE VOICE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR188401)
Ronell Dywane Voice appeals his conviction after a 2009 jury trial on two counts of forcible rape and one count of sexual penetration by a foreign object, with enhancements, for which he received a state prison sentence of 60 years to life. His conviction was based on the testimony of G.G. and J.K., who each reported to police in 1997 that she was sexually assaulted, and testimony from police who investigated and nurses who conducted sexual assault examinations, as well as DNA evidence developed some years later. Defendant argues the trial court prejudicially erred by restricting his impeachment cross-examination of G.G. and J.K. and allowing improper expert testimony in violation of his federal constitutional rights and due process, which rulings also were an abuse of discretion. We affirm the judgment.
BACKGROUND
By a second amended information, the Solano County District Attorney charged defendant with two counts of forcible rape (Pen. Code, § 261, subd. (A)(1)), one count of sexual penetration by a foreign object (§ 289, subd. (a)(1), and four counts of aggravated sexual assault of a child (§ 269, subd. (a)(1)). The information alleged three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)).
All references herein are to the Penal Code unless otherwise stated.
The trial court severed trial of the four counts of aggravated sexual assault of a child. Trial commenced on the first three counts in January 2009. We summarize the proceedings and evidence relevant to this appeal.
The Prosecution's Evidence Regarding G.G.
G.G.'s Testimony
G.G. testified that about 11:00 p.m. on May 4, 1997, she took a shortcut by a Vallejo liquor store and over some railroad tracks as she walked to a friend's home. A man came from behind and grabbed her, brandishing a knife. He squeezed her neck and put a nylon-like rope around it, causing her to go in and out of consciousness. He was wearing a mask over his head and had dark skin. She did not know his race and did not recognize him or his voice.
G.G. said the man made her lie face down on the ground with the rope around her neck, took off her pants, and raped her. He first penetrated her vagina with his finger, and then with his penis. She thought he might have ejaculated inside her. He struck her with his closed fist all over her face "quite a few" times. She had a fat lip and a "couple of knots" on her head, a bruise on her thigh, some marks on her back, and scraped knees.
G.G. testified that she lost consciousness and when she regained it, found herself face down on the ground near railroad tracks. She was walking towards a nearby residence when a motorist discovered her and called the police. When she returned to the area with a police officer, she found a glove and some beads that she had lost in the course of the attack. She was not intoxicated that evening, and had not taken any other substances.
G.G. said she did not recognize anyone in the courtroom and did not recall ever seeing defendant before. She was certain that she never had consensual sex with him. She was not sure if she met an African-American man named "Wayne" who lived in Vallejo around 1997. She could not recall the last time she had consensual sex before she was assaulted.
G.G. testified further that five or six years before the incident, she had developed a brain tumor, and had another tumor at the time of trial. She said her condition could affect her memory.
G.G. acknowledged that in 2005, she was convicted of theft from a store, and that she admitted stealing other items from the store.
Officer Daniel Reid's Testimony
Former Vallejo Police Officer Daniel Reid testified that he observed G.G. at Sonoma and York Boulevards in Vallejo, crying, about 1:00 a.m. on May 5, 1997. She said she had just been raped. She had numerous injuries across her face, including welts on her right jaw area and a cut lower lip, as well as abrasions on her neck, knees, and hips. She described her attacker as a Hispanic man in his mid-20's. Reid took G.G. to Sutter Solano Hospital, where she was examined. Reid took possession of the hospital paperwork and the sexual assault examination kit, which were booked as evidence at the police department.
Reid said he also drove G.G. to the area of Springs Road by some railroad tracks, where G.G. cried and was distraught. Reid had earlier noticed that G.G. was missing a glove; he found a matching glove lying on the ground near the railroad tracks and a hair tie in the area that matched those in G.G.'s hair.
Reid further testified that G.G. had slurry speech, making it hard at times to understand her. She told him most of her speech problems were caused by a brain tumor she had developed years earlier. Reid found no evidence that she was intoxicated.
Nurse Elizabeth Cassinos's Testimony
Registered nurse Elizabeth Cassinos testified as an expert on sexual assault findings and examinations. She conducted a sexual assault examination of G.G. at Sutter Solano Hospital at 1:15 a.m. on March 5, 1997. Testifying from her notes, she said G.G. was crying, upset, hysterical, disheveled, and had dirt on her skirt. G.G. had red marks on the right side of her face and forehead consistent with being punched, and scrapes, including on her knees.
Cassinos testified that G.G. said she was attacked by a person she did not know who had mixed, dark skin. He had a knife, penetrated her vagina with his finger and his penis, and choked her so that she lost consciousness. He punched her in the face several times, and her back and neck hurt. She had not had consensual sex within the previous 72 hours, and had not showered, changed clothes, or conducted any genital wipes since the incident.
Cassinos said she observed "slight erythema at six o'clock at the posterior fourchette," which was indicative of sexual intercourse. She collected four vaginal swab samples, blood, and reference samples, which she packaged and put in the sexual assault kit. She found her examination results were consistent with G.G.'s report.
Cassinos also testified that she did not see any sperm in the course of her review, which included a wet mount slide from one vaginal swab; however, it is possible another, unexamined, swab had evidence of sperm on it. There was "new evidence" that sperm could be present in the vagina for 7 to 10 days after intercourse.
Testimony Regarding the Sexual Assault Evidence
Jason Mello, a former laboratory aide at the Contra Costa crime lab, testified that, in June 2001, he picked up a sexual assault evidence kit from the Vallejo Police Department, with paperwork indicating Reid was requesting an examination of evidence related to G.G. Mello saw epithelial cells and sperm cells upon examining two vaginal swabs.
Vallejo Police Officer Matthew Meredith testified that in March 2007, at the request of the Department of Justice, he collected four swabs of DNA samples from defendant by rubbing Q-tips inside defendant's mouth, packaged them, and placed them in the police department's evidence section. He took one set of the swabs personally to Contra Costa and gave the other to an evidence technician at the Vallejo Police Department.
David Stockwell, a senior criminalist with the Contra Costa County Sheriff's Office, testified as an expert in DNA forensic and statistical analysis. He testified that in September 2001, he conducted DNA testing on vaginal swabs from G.G. to try to isolate a sperm donor profile as part of the "California Cold Hit" grant program. He isolated spermatozoa from nonsperm cells on the vaginal samples and derived a sperm donor profile.
At some point, Stockwell testified, he learned defendant was a suspect in the G.G. case. In April 2007, he contacted the Vallejo Police Department and obtained reference samples from defendant, which he compared to the sperm donor profile. The two matched. He estimated the profile of the sperm obtained from the G.G. vaginal swab would be present in one to 270 trillion African-Americans, one in 17 quadrillion Caucasians, or one in 400 quadrillion Hispanics, which were "exceedingly remote numbers."
The Prosecution's Evidence Regarding J.K.
J.K.'s Testimony
J.K. testified that in September 1997, she lived in Vallejo with her husband; she was on probation for a misdemeanor drug offense at the time. On September 29, 1997, around 6:00 p.m., she went to attend a required probation department meeting on drug issues that took place on Tuolumne Street, upstairs from her probation officer's office. She was running late and got to the door of the building about 10 minutes after six; the door was locked and no one responded to her knocks.
J.K. said she drove her van to the parking lot of a laundry business intending to use a pay phone there to call her husband. As she sat in the driver's seat searching for change in her pockets while holding a $20 bill and a cigar, a man opened the driver's door, pulled her out of the van and, holding onto her arm, shoved and pushed her to the dumpster area near the laundry business. He was dressed in white, and had a surgical mask on his face, a bald head, and "chocolate brown" skin. He told her not to scream and flung her whole body backwards, causing her to hit a brick wall. J.K. was afraid for her life because she did not recognize the man.
J.K. said the man ordered her to get on the ground, exposed his penis, grabbed her hand, and forced her to touch his penis. She did so, but then pulled her hand away, which "really set him off." He pushed her backwards and put his hand over her mouth with a lot of force, pushing her front teeth back; she eventually lost these teeth, one before her examination at the hospital. As she lay on her back, he took off her pants and underwear partially and forced his penis into her vagina. She felt him ejaculate inside her. He told her to count to 200, threatened to kill her if she did not or if she reported him, and walked away.
J.K. further testified that she returned to her van and sat in shock trying to figure out what to do. A woman walking through the parking lot came over and asked if she was okay. They talked, and the woman said she would go to call the police, but J.K. realized later that she stole some things from the van. J.K. waited in her van all night for the police to arrive. She did not try to contact her husband. The laundry business did not have a pay phone, and she was afraid to get out of the van again.
The next morning, J.K. said, she drove to a police station. The police took her to Sutter Solano Hospital, where she had a sexual assault examination. She told the examiner that she had consensual sex with her husband within the previous 72 hours.
J.K. testified that she did not know an individual by the name of "Ronell Voice." She denied telling police that she was assaulted between 9:00 p.m. and 9:30 p.m. on September 29, 1997.
J.K. acknowledged that in 1998, she was convicted of a felony crime for cruelty to a child. She admitted giving a false name to police when stopped at 3:30 a.m. in May 1997 in Vallejo, several months before the assault, which incident also led to a possession of methamphetamine conviction. She also acknowledged that police found her digging in a dumpster in June 1997, at 4:45 a.m.
Officer John Cunningham's Testimony
Vallejo Police Officer John Cunningham testified that he took J.K.'s report on the morning of September 30, 1997. She told him she was not sure when she was attacked but said it was between 9:00 p.m. and 9:30 p.m. the night before, when she went to call her husband at a place that had a pay phone. She did not mention a probation department meeting to him.
Cunningham said he drove J.K. to where she had been attacked, a partially enclosed dumpster area outside a Vallejo laundromat, in a "busy area" that "gets a lot of calls for service" to the police, about "everything you can think of." J.K. told him she had dropped a $20 bill, a cigar, and a lighter in the parking lot when she was attacked, but he could not find these items in the area.
Cunningham said he took J.K. to Sutter Solano Hospital, where Katherine Foster conducted a sexual assault examination of her. He took possession of the sexual examination kit samples, which he booked into evidence.
Nurse Katherine Foster's Testimony
Katherine Foster, a registered nurse in 1997, testified as an expert in the field of sexual assault examinations. She conducted a sexual assault examination of J.K. in 1997 and testified from her notes.
Foster said J.K. told her a Black male wearing a white surgical mask raped her, penetrating her vagina with his penis. He slammed her against a wall, put a hand over her mouth, and told her not to scream. She complained to Foster of pain in her shoulders, back, arms, and lower abdomen, genital tenderness, and said something about some loose teeth. She was upset and crying. J.K. said she did not engage in "post-assault hygiene activity."
Foster further testified that she did not see any vaginal injury, which was the case in most of the 50 to 100 sexual assault examinations that she conducted. She did not see any gravel, but saw a red mark on top of J.K.'s buttocks. She concluded that her examination was consistent with the history J.K. gave to her. She collected vaginal swabs and a blood sample and, along with the other items she collected, sealed them, put them in the sexual assault kit, and gave the kit to Officer Cunningham.
Testimony Regarding the Sexual Assault Evidence
California Department of Justice senior criminalist Michelle Terra, who worked at the Sacramento lab, testified that records showed evidence regarding J.K. was received from the Vallejo Police Department in October 1997 and DNA extracted from one of the vaginal swabs in 1998. In March 2002, Terra retrieved some of the items, including the swab, and sent them to the Department of Justice's Berkeley lab.
Jeanette Wallin, another Department of Justice senior criminalist, testified as an expert in forensic and statistical DNA analysis. In March 2002, she examined evidence from J.K.'s case sent by Michelle Terra, including vaginal swabs. She extracted an epithelial cell fraction and a sperm cell fraction from a portion of a vaginal swab, processed the DNA of the sperm fraction part, and in late 2002 or early 2003 determined a "13 locus STR" profile of a male donor. In April 2007, she extracted DNA from a swab of material taken from defendant and determined that defendant's STR profile was consistent with that of the sperm fraction part. She estimated the vaginal swab's STR profile would be randomly present in one in 160 trillion African-Americans, one in 12 quadrillion Caucasians, or one in 270 quadrillion Hispanics, "strong evidence" that defendant was the source of the semen detected on the vaginal swab from J.K.
Defendant's Case
Officer David McGraw's Testimony
Former Vallejo Police Officer David McGraw testified that he interviewed J.K. on October 7, 1997. She told him she was assaulted sometime between 9:00 p.m. and 9:30 p.m. on September 29, 1997, in an area which McGraw knew had somewhat of a high crime rate and "a lot of narcotics." J.K. said she had a $20 bill in her hand when she stepped out of the van and he asked if she spent it on drugs; she denied it, saying she dropped the bill during the assault. She said she was going to see her probation officer to explain why she had missed the probation department meeting, and she did not mention arriving a couple of minutes late to the meeting. McGraw was aware that the department conducted meetings in the evening, and thought it was reasonable that the probation department would have closed their doors around 9:00 p.m. His notes indicated he asked her if she had missed a probation department meeting, and she said she had.
Probation Department Employee Andrea Valmore's Testimony
Andrea Valmore testified that in 1997 she supervised participants in "drug court" for the Solano County probation department. Participants such as J.K., in drug court for a misdemeanor drug offense, were required to engage in drug testing and attend meetings such as those held by Narcotics Anonymous (NA), as well as a recovery group meeting held on Mondays between 5:00 p.m. and 6:00 p.m. at the probation department; there were no meetings after that time.
Valmore testified that, according to her September 26, 1997 report, J.K. was ordered in late August 1997 to attend recovery group meetings. She missed a September 15 meeting and was warned she could face some jail time if she missed another; she also did not go to any NA or Alcoholics Anonymous meetings between September 5 and September 20 and did not submit to any drug tests between September 5 and September 18, although required to submit to testing twice a week. She was drug-tested on several occasions, with negative results, and told Valmore she was ill during the time she missed drug testing. However, a missed drug test was treated like a positive one and a sickness claim would not be accepted without a doctor's note. J.K. also missed the recovery group meeting on September 29, and did not submit to drug testing between September 25 and October 20.
Defendant's Closing Argument
In closing argument, defense counsel conceded that G.G. had been raped, but argued that she had brain damage that caused her memory to be faulty. G.G. identified her attacker as Hispanic and in his mid-twenties at the time, but defendant was 31 years old at the time and did not look Hispanic; G.G. also was not sure her attacker had ejaculated inside her, and other aspects of her story suggested memory failure. She remembered having African-American friends when she lived in Vallejo in 1997. Relying on the expert testimony that sperm could be detectable in the vagina two weeks after intercourse, defense counsel argued there was reasonable doubt about defendant's guilt because the evidence reasonably suggested G.G. had consensual sex with defendant seven to 14 days before the rape, even if she could not recall having met him.
Defense counsel argued, based on J.K.'s criminal record and poor drug court performance, that in 1997 J.K. was a drug addict who lied that she was raped for fear she would be sent to jail. Actually, she was out late, in possession of methamphetamine, and had consensual sex with defendant. Counsel emphasized the lack of physical injury to J.K. noted in the sexual assault examination, J.K.'s claim she spent all night in the laundromat parking lot without calling her husband or going home, Cunningham's testimony that he could not locate the things J.K. claimed to have dropped in the parking lot, and J.K.'s testimony that the rape occurred shortly after 6:00 p.m., although she initially reported that it occurred three hours later.
Verdict and Sentence
The jury found defendant guilty of all three counts, and subsequently found all strike and prior serious felony allegations were true. The court granted the prosecution's motion to dismiss the remaining counts. It imposed a state prison sentence totaling 60 years to life.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues reversal is necessary because the trial court committed three errors that separately and/or cumulatively prejudicially violated his federal Constitutional rights to due process, confrontation, and cross-examination, as provided for in the Fifth, Sixth and Fourteenth Amendments. We discuss these arguments one at a time.
I. The Trial Court's Limits on the Cross-Examinations of G.G. and J.K.
Defendant first argues the trial court violated his constitutional right to present a defense by prohibiting cross-examination of G.G. and J.K. about whether they exchanged sex for drugs with him in 1997. We disagree. A. Relevant Proceedings Below
Defendant's argument is based on the trial court's denial of his in limine request. Specifically, defendant argued he had the constitutional right to confront the complaining witnesses with questions concerning the possibility they had consensual sex with him in exchange for drugs at or near the time they claim to have been raped, whether or not his offers of proof are unduly speculative, because Evidence Code section 1103 provides that character evidence concerning alleged victims of crime is admissible despite Evidence Code section 782." He also argued that "questions to the complaining witnesses attempting to establish their consensual sexual encounters with [defendant] are expressly admissible" pursuant to Evidence Code section 1103, subdivision (c)(3), including sexual encounters with defendant at a different time than that of the alleged rape.
Defendant cites as the bases for this request his "Further Points and Authorities in Support of Defendant's Motion to Ask Complaining Witnesses About Alternative Explanations for DNA Evidence," filed on January 28, 2009, and the hearing that followed that same day. There are suggestions in the record, including the title of this supplemental brief, that defendant previously filed a motion and a declaration regarding the scope of his cross-examination of G.G. and J.K. Defendant does not refer to these documents and we have not found them in the record provided to us. We evaluate defendant's claim based on the record citations he provides.
The prosecution previously filed motions in limine to exclude defense questions regarding G.G.'s and J.K.'s prior sexual behavior pursuant to Evidence Code sections 352, 782, and 1103, subdivision (c)(1).
At the relevant hearing, the court said it was inclined to permit the defense "to ask questions about sexual intercourse with—by the victims with this defendant prior, let's say a one-month period before. I would not permit anything on prostitution, unless we had some kind of 402 determination about that." Defense counsel asked the court for permission "to ask the witnesses directly if they traded sex for drugs with my client. I'm not going to ask them about being prostitutes or prostituting for money with anybody else, but I would like to ask them directly that question about my client, which I think is—under [Evidence Code section] 1103[, subdivision] (c)(3), is completely relevant."
The court, agreeing with the prosecution's view, indicated that if the complaining witnesses denied knowledge of defendant, it would not allow questions past that point, but that if they had "some knowledge, you can ask that question." Defense counsel then asked for "a little latitude" in attempting to refresh the recollections of the complaining witnesses, given that events occurred 12 years before; the court allowed this, but made clear that defense counsel could not "get into sex for drugs unless they evidence some knowledge of him, after you've completed your foundational bases."
Defense counsel argued he should be able to ask about whether G.G. or J.K. exchanged sex for drugs with defendant "in order to be able to test" their recollections, and that Evidence Code section 1103, subdivision (c)(3) did not contain any relevant limitations regarding a complaining witness's possible sexual acts with the defendant. The court responded that it was "[an Evidence Code section] 352 issue, as far as I'm concerned. That's a serious accusation, and that's why I won't let it come in unless there's some foundation for it." B. Analysis
As we have discussed, defendant argues the trial court's limitations on his counsel's cross-examinations violated his federal constitutional rights. However, as the People point out, our Supreme Court has rejected a similar constitutional argument because the application of "ordinary rules of evidence," such as Evidence Code section 352, "generally does not deprive the defendant of the opportunity to present a defense." (People v. Snow (2003) 30 Cal.4th 43, 90.)
Furthermore, defendant argues the trial court, "[t]o the extent [it] relied on Evidence Code section 352," abused its discretion because Evidence Code section 352 "permits the trial judge to strike a careful balance between probative value of the evidence and the danger of prejudice, confusion and undue time consumption. 'That section requires the dangers of these evils substantially outweigh the probative value of the evidence . . . Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense,' " quoting from People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599. Burrell-Hart found the trial court had abused its discretion under Evidence Code section 352 in light of the circumstances of the case and defendant's right to present all of his pertinent evidence to the trier of fact. In other words, regardless of his claim of constitutional error, the substance of defendant's argument is about the trial court's application of Evidence Code section 352. Therefore, we review the court's ruling pursuant to that statute.
Evidence Code section 352 states, "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." (Evid. Code, § 352.) We apply an abuse of discretion standard of review to the trial court's exclusion of evidence pursuant to Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Defendant argues that G.G. had memory problems from her brain tumor that may have prevented her from recalling having consensual sex with defendant before she was raped. He points to G.G.'s sometimes vague testimony, in which she acknowledged she could not recall various things, such as where she was living at the time, whether she told police her attacker had strangled her with his hands or with a rope, what she told the nurse at the hospital, whether or not she entered a liquor store along her route before the attack, whether the attacker ejaculated inside her, whether she knew someone called "Wayne" at the time, and the last time she had consensual sex before the attack.
Defendant argues that J.K. could have engaged in consensual sex with defendant, based on the evidence that she was on probation for a drug offense, visiting a high crime area at night, missed probation department meetings, stayed out all night on the night of the incident and did not report the incident until the next day, had no physical injuries, and testified that she had consensual sex with her husband without using a condom shortly before the rape, although only defendant's DNA was found.
Each of these arguments is unpersuasive. As the People point out, the trial court reasonably limited defendant's right to ask if G.G. or J.K. traded sex for drugs with defendant by requiring that defendant first establish that either woman had some knowledge of defendant. The court did not bar defendant from asking the question if there was evidence of some connection between G.G. or J.K. and defendant. Both G.G. and J.K. denied knowing or having any contact with defendant before the incidents, and defendant does not cite evidence indicating that either did. In the absence of any such evidentiary link, the court could reasonably conclude that defendant's proposed questioning, whatever the answers, was too speculative and prejudicial to permit.
Defendant also cites People v. Fontana (2010) 49 Cal.4th 351 to argue that evidence offered to demonstrate a credible alternative explanation for physical injuries of a sexual assault victim is admissible. However, the Fontana court found an error in the trial court's failure to hold a hearing to determine the admissibility of certain evidence in the face of a substantial offer of proof. (Id. at pp. 366-368.) The court stated, "The offer of proof was not a fishing expedition. Rather, defendant identified a specific basis, consisting of hearsay recorded in hospital records and statements relayed by the prosecutor, for believing that [the complaining witness] had engaged in sexual activity during the relevant time period." (Id. at p. 367.) Here, to the contrary, defendant's efforts did amount to a fishing expedition in the absence of any evidence that G.G. or J.K. knew defendant.
Defendant further argues that his questions should have been allowed because they were relevant to the credibility of the complaining witnesses. He points out, correctly, that no matter how legitimate a trial court's doubts about the credibility of evidence, these doubts " 'do not constitute "prejudice" under Evidence Code section 352.' (People v. Cudjo [(1993)] 6 Cal.4th [585], 610.)" Again, this argument is unpersuasive because defendant failed to introduce any evidence that would provide a foundation for the questioning he sought to pursue.
In short, the trial court did not abuse its discretion by barring defendant's "sex for drugs" line of cross-examination questioning of G.G. and J.K. in the absence of evidence that either knew defendant.
II. Evidence Regarding J.K.'s Child Cruelty Conviction
Defendant next argues that the trial court erred by barring defendant from impeaching J.K. with evidence that she lied to police officers investigating her mistreatment of her grandson in 1998. This too is incorrect. A. Relevant Proceedings Below
Defendant sought to impeach J.K. with evidence that she committed various criminal offenses, including for child cruelty. Defense counsel contended that J.K. "not only was . . . convicted of child cruelty, she was not honest with the police investigating the case. They found her three-year-old grandson unconscious, with a body temperature of 71 degrees, in a cold bath. She told the police that she had been giving him a bath and went out to fold clothes for three minutes, and that was absolutely false. She told the police—when they asked her why she would leave a three-year-old in a cold bath, she said that he liked taking cold baths, which her husband told police was not true."
The court limited the evidence defendant could introduce regarding this matter. It ruled that defendant could introduce the felony, and describe its nature, but could not go "into the facts of the offense at all, other than any lying to police. You may bring up false information to a police officer, and the possession of the drugs that—for which she was on probation at the time."
The court later clarified its ruling at the request of counsel. It stated that defendant could state the "crime itself, but not the facts behind it," "except the lying." The prosecutor argued that the evidence of lying was more prejudicial than probative because counsel would have to prove that J.K. lied to investigating officers. Defense counsel asserted that if J.K. denied lying, he would call her husband to the stand to prove that she lied. The court, because it was "worried about the fairness . . . to both sides," ruled that defendant could ask if J.K. lied during the investigation of the underlying crime, but that if she denied doing so, there would be no further questions, and defense counsel responded, "If she admits that she lied to—I'll—that's enough for me absolutely."
At trial, J.K. was impeached with evidence of her convictions of certain offenses, including in 1998 for felony cruelty to a child. She denied that she was not honest with the police during their investigation. Instead, she asserted that she "was very honest about the circumstances they were investigating" and that she "did not lie to those officers about anything."
Subsequently, the parties memorialized the trial court's ruling, made in chambers, barring further impeachment cross-examination of J.K. about the matter. Defense counsel offered the testimony of a police officer who interviewed J.K. on February 11, 1998, about the child cruelty incident. Defense counsel stated that the officer would testify that J.K. said she was gone for three to five minutes to fold laundry after putting the child in the bath and that the child liked cold baths. She also said that before the bath the child had "pooped his pants" and she had thrown away his underwear; however, the officer found the underwear was still in the bathtub.
Defense counsel also said he wanted to introduce police testimony that J.K. "had a cut straw, narcotics paraphernalia, with white residue in her pocket, and told police that she had just found it in her house, and that it may have belonged to her daughter. [¶] . . . [H]er husband can testify, according to the reports, that the daughter had been gone out of the house for at least two months . . . . The court ruled in chambers that this evidence from [the officer], which may have impeached [J.K.'s] credibility as a witness here by saying that she was honest with the police, would violate [Evidence Code section] 352 and should be excluded; and so since [the officer's] testimony would be excluded, then I decided not to call [the husband] either, because his testimony undercutting [J.K.] is dependent upon the statements of the [officer] that the court excluded."
The prosecutor stated that he understood that what was "most relevant" to defense counsel was the evidence that a three-inch straw containing suspected narcotics was found on J.K.'s person and that she said it possibly belonged to her drug addict daughter, because defense counsel thought this showed J.K. was being dishonest with police. The prosecution argued in chambers that this evidence should be excluded pursuant to Evidence Code section 352 because it was about a collateral matter, was not definitive of a lie, would confuse the issues, and would result in an undue consumption of time. Furthermore, J.K. already had been impeached by her admission that she had been convicted of child cruelty.
The court stated, "I feel that the weight of this testimony on the issue of credibility is so slight and so low, that it demands [an Evidence Code section] 352 finding of inadmissibility, and that's what I would do." B. Analysis
Defendant argues the trial court should not have excluded the proffered police officer testimony regarding such matters as the child's underwear and the straw and drug paraphernalia found on J.K.'s person. He further argues the court's error led to his counsel's decision not to call J.K.'s husband to testify, which testimony would have cast further doubt on J.K.'s veracity. Once more, we disagree that any error occurred.
Defendant correctly points out that a prior felony conviction that involves moral turpitude is admissible to impeach a witness's testimony, citing People v. Castro (1985) 38 Cal.3d 301, 306. However, this cited passage in Castro also states that the use of any felony conviction involving moral turpitude is "always subject to the trial court's discretion under [Evidence Code] section 352." (Ibid.)Moreover, defendant was able to introduce evidence of J.K.'s conviction for felony child cruelty, a crime to which J.K. admitted.
Defendant next correctly points out that, in proper cases, conduct evidence not amounting to a felony conviction, but which nonetheless involves moral turpitude, is also admissible for impeachment purposes. (E.g., People v. Wheeler (1992) 4 Cal.4th 284, 295.) He then argues generally that defendants have the constitutional right to call witnesses in their favor, and that state courts' rights to exclude evidence is cabined by a defendant's constitutional right to present a defense. These arguments, however, do not in any way establish that the trial court in this particular case, reviewing the particular proffered evidence, was somehow remiss to exercise its discretionary authority pursuant to Evidence Code section 352 and weigh the prejudice and probative value of the evidence defendant sought to have admitted. Defendant fails to point out any constitutional violation of defendant's rights as a result of the court's ruling.
In other words, as the People contend, we are again left with simply determining if the court abused its discretionary authority pursuant to Evidence Code section 352 to exclude certain evidence. The court allowed in the evidence of J.K.'s child cruelty and other convictions, giving defendant the opportunity to impeach J.K. with a good deal of evidence involving moral turpitude. The evidence the court excluded regarding the child cruelty investigation fell short of conclusively establishing that J.K. lied to police, was potentially prejudicial, and involved matters that were peripheral, if not irrelevant, to J.K.'s account of sexual assault. Under these circumstances, we conclude the trial court's exclusion of this evidence was not an abuse of discretion.
III. Foster's Expert Testimony
Finally, defendant argues that the trial court erred when it allowed Katherine Foster, the registered nurse who examined J.K. in 1997, to testify as an expert about whether her sexual assault examination findings were consistent with the history J.K. reported, contending Foster was not qualified to do so. This too is incorrect. A. Relevant Proceedings Below
In his opening brief, defendant first refers to the trial court's overruling of his objections to the expert testimony of the "nurses" who performed the sexual assault examinations of both G.G. and J.K., but concedes later that he does not contest Cassinos's expert testimony on appeal.
During voir dire to determine her qualifications, Foster testified that she had conducted 50 to 100 sexual assault examinations and could recall "maybe twice" concluding that her examination findings were not consistent with the history given to her. When asked what training she had to be able to reach such conclusions, Foster replied that she was a research nurse who worked in obstetrics. She had training from a physician "who specialized in sexual assault, reviewed maybe thousands of slides of trauma and non-trauma. The training . . . was yearly or nearly every other year, went to seminars in San Diego, or reviewed slides of victims of assault." During this training, participants were not always looking at victims of assault; sometimes they were asked "to make a judgment, and we were right sometimes and wrong sometimes." When asked directly how much training she had in actually making a conclusion as to whether an examination was consistent with history, Foster indicated that they did not make that judgment in the training.
Foster further testified that she determined whether her examination findings were consistent with history in each of the 50 to 100 examinations she conducted, based on the evidence of trauma or other evidence that she observed. She had testified about her determinations as an expert in 10 to 12 other cases, although this was the first case in which her qualifications as an expert were contested.
The court, over defense objection, allowed Foster to testify about whether her examination findings were consistent with the history J.K. gave her. As we have discussed, Foster indicated that they were consistent. B. Analysis
Evidence Code section 801, subdivision (a) provides that expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." Further, "[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. Whether a person qualifies as an expert in a particular case, however, depends upon the facts of the case and the witness's qualifications. [Citation.] The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion [is] shown." (People v. Bloyd (1987) 43 Cal.3d 333, 357.)
Defendant argues multiple reasons why Foster's conclusion was inadmissible. First, based on general case law regarding expert testimony, he argues that the prosecutor did not lay a proper foundation regarding Foster's expertise, claiming that unless the prosecutor did so concerning her "training or knowledge of expert studies on the genesis of such injuries, the nurse may not offer an opinion that a particular injury is 'consistent' with sexual assault," since her testimony would not be based on scientific knowledge. However, defendant ignores Foster's testimony that she received periodic training, approximately every year or other year, from a physician who specialized in sexual assault examinations and reviewed thousands of slides of trauma and non-trauma in the course of this training, was quizzed during this training on whether particular slides showed trauma or non-trauma, had worked as a research nurse in obstetrics, and conducted 50 to 100 sexual assault examinations that required her to compare her findings with the history provided. Instead, defendant focuses entirely on Foster's testimony that training program participants were not asked specifically to make a judgment as to whether particular findings were consistent with particular history. Given the entirety of Foster's testimony about her training and experience, defendant's argument is unpersuasive.
Defendant further argues that "[t]he opinion of the nurse who conducted the sexual assault examination is also inadmissible for a more fundamental reason. As a general rule, a witness is barred from offering an opinion regarding the defendant's innocence or guilt." According to defendant, "[w]hen a nurse who has conducted a sexual assault examination testifies that the patient's version of events is 'consistent' with sexual assault, the testimony is a thinly veiled opinion that the complainant is a credible witness. Because the entire sexual assault examination is conducted on the assumption that the complainant is telling the truth, the nurse should not be permitted to testify to an opinion which implicitly advises the jury that the complainant is credible." Defendant cites several cases for these arguments, none of which are on point; we need not discuss them because his arguments are based on two characterizations that are not supported by the record. Specifically, Foster offered no opinion whatsoever regarding defendant's guilt or innocence, and defendant does not point to any evidence that a sexual assault examination is conducted on the assumption that the complainant is telling the truth. Therefore, we reject these arguments as well.
In short, defendant's arguments for why the trial court abused its discretion in allowing Foster to testify about whether her findings were consistent with the history provided by J.K. are unpersuasive, and not a basis for reversal.
In light of our conclusions herein, we do not address the other arguments discussed by the parties, such as whether any of the errors defendant claims were made were prejudicial, either by themselves or cumulatively.
DISPOSITION
The judgment is affirmed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.