People v. Cousin CA2/4 ( 2021 )

Filed 10/5/21 P. v. Cousin CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307746
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.BA462241)
v.
WYAUNTE COUSIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Kennedy, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie A. Miyoshi and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Wyaunte Cousin of four counts
of rape and one count of robbery against victims Emily and
Debra.1 Appellant raises multiple issues on appeal. First, he
contends the court erred in admitting Debra’s preliminary
hearing testimony based on a finding that she was unavailable as
a witness pursuant to Evidence Code section 1291 after she
refused to testify at trial. Second, he argues that the court
improperly instructed the jury using CALCRIM No. 1191B
regarding his propensity to commit sexual offenses. Third, he
challenges the admission of testimonial hearsay statements made
by the victims during their sexual assault examinations. Fourth,
he asserts that his sentence was unconstitutional and failed to
consider his youth as a factor in mitigation. We conclude
appellant has not established prejudicial error. We therefore
affirm.
PROCEDURAL HISTORY
On September 13, 2018, appellant was charged by
information with four counts of forcible rape, two each against
Debra and Emily (Pen. Code, § 261, subd. (a)(2); counts one
through four),2 and two counts of second degree robbery, one each
against Debra and Emily (§ 211; counts five and six). The
information further alleged as to the rape counts that appellant
was convicted of committing a specified sexual offense against
more than one victim (§ 667.61, subds. (b), (e)(4)), and that he
1 We refer to the victims and civilian witnesses by their first
names to protect their privacy interests. (Cal. Rules of Court,
rule 8.90(b).)
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
personally inflicted great bodily injury in the commission of the
rape counts against Emily (§ 667.61, subds. (a), (d)(6)).
On April 22, 2019, the jury found appellant guilty on all
four rape counts and the robbery count as to Debra (counts one
through five). The jury further found the special allegations true.
The jury acquitted appellant of count 6, the robbery charge
against Emily.
Because the jury found true the allegations under section
667.61, appellant was sentenced on counts one through four
pursuant to the “One Strike” law, an alternative, harsher
sentencing scheme that applies to specified felony sex offenses.
(People v. Anderson (2009) 47 Cal.4th 92, 102; § 667.61.) The
court sentenced appellant to a total of 70 years to life plus 16
years in state prison, as follows: 25 years to life on count three
pursuant to section 667.61, subdivisions (a) and (d)(6), 15 years to
life as to each of counts one, two, and four, pursuant to section
667.61, subdivisions (b) and (e)(4), to run consecutively to count
three, and one year on count five. The sentence also included a
15 year sentence for an unrelated charge.3 Appellant timely
appealed.
3In 2016, appellant pled no contest to an unrelated
carjacking (§ 207(a)) and was sentenced to 15 years in prison.
Pursuant to section 1170.1, subdivision (a), the court here
pronounced a single determinate term of 16 years, combining the
one-year sentence imposed in this case and the previously-
imposed 15-year term.
3
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Rape of Emily
1. Emily’s testimony
Emily testified that at the time of the incident in April
2016 she was 19 years old and homeless, sometimes “bouncing . .
. from house-to-house,” and sometimes living on the streets.
Around 9:20 p.m. on April 26, 2016, she was outside a Kentucky
Fried Chicken restaurant in the city of North Hills, sending a
text message to her friend Rajon. She messaged Rajon that she
wanted to “get high and just hang out.” She had
methamphetamine with her, but did not have a pipe.
As she stood outside the restaurant, appellant drove up in a
white SUV and parked next to her. Appellant got out of the car
and went into the restaurant. When he came out, he asked
Emily her name. Emily responded that it was “Milli.” Appellant
said, “I remember you. I had met you before.” Emily said she did
not recognize him, and appellant responded that he met her “with
Rajon and Rajon’s uncle.” Emily testified that she began to trust
him a bit more after he correctly identified her friend Rajon, even
though she did not recall meeting him before. Appellant asked
what she was doing and Emily said she was trying to get high but
did not have enough money to buy a pipe. Appellant told her “I
have the rest that you need. Let’s go.”
Emily got into the front passenger seat of appellant’s car
and they drove a few blocks to a gas station, where appellant
bought a pipe. Next, they parked in a parking lot and smoked
methamphetamine. Afterward, appellant continued to drive
them around, ignoring Emily’s repeated suggestions to drop her
off.
4
Appellant drove into an industrial area, pulled over, and
asked to smoke out of the pipe again. Emily received a message
on her phone from Rajon and she responded, telling Rajon that
she was “with some guy you know,” but was “trying to go” and
wanted to “meet up right now.” She told appellant that Rajon
was at a nearby park, and appellant agreed to take her there.
Emily texted Rajon she had been repeatedly asking appellant to
leave, and that he was supposed to drop her off. The prosecution
introduced Emily’s text messages with Rajon at trial.
Emily testified that at some point she realized that
appellant “was not going to drop me off or—any time soon.” She
told appellant, “You are on like some other shit,” and opened the
door to leave. Appellant grabbed her wrist and said, “close the
fucking door, bitch.” Emily testified that she was very scared and
recalled “kind of just going into survival mode, kind of just going
along with it.” She closed the car door and appellant hit her on
the left side of her face. After that, appellant grabbed her by the
neck and began squeezing hard. She felt like “my whole face was
on fire, and it felt like it was going to explode.” She tried to
scream but “no air was coming in. No sounds were coming out.”
She started to kick and then lost consciousness. When she woke
up, her pants were pulled down and appellant had his penis in
her vagina. She started crying and saying “this is the worst
thing that’s ever happened to me,” over and over. Appellant said,
“Stop crying, bitch. It’s weird.”
Appellant told Emily to go into the backseat of the car, but
she could not move her body. Appellant moved her onto the
backseat on her stomach. He followed her, reinserted his penis
and began raping her again. Emily recalled crying and telling
appellant, “Please don’t kill me.” Appellant told her he would not
5
kill her if she did not tell anyone. She estimated that he
continued to rape her in the back seat for “at least an hour.”
After he stopped, she told him she needed to get out of the car.
Appellant noticed that she had blood on her face, and said, “I
don’t know why you have blood on your face; I didn’t hit you.”
Emily wiped her face and then appellant said she could go.
Emily got out of the car, leaving behind her phone, a phone
charger, and one of her shoes. Appellant immediately drove
away.
Emily estimated she was unconscious for about an hour
during the assault, because she could see her watch when
appellant moved her to the back seat. After appellant drove
away, she ran to a nearby apartment of an acquaintance. There,
she took a shower and borrowed some clothing. She did not
attempt to call the police because of the threats from appellant.
She called her father and told him what happened. She asked
him to pick her up.
Her father arrived at the apartment with the police. She
asked if she could answer their questions inside her father’s car,
because she was scared appellant would drive by and see her.
She told the police that she was smoking weed, rather than
methamphetamine, because she did not want to get in trouble
with her father. Otherwise she told the truth.
Emily went to the hospital and then to a rape clinic for a
sexual assault examination. She testified that following the
incident, she experienced a lot of pain in her tongue, neck, and
head. At trial, she identified several photographs of her injuries
taken at the rape clinic a few hours after the assault. She
explained to the jury that she had red marks on her cheek and
lip, her face was swollen, her neck was bruised, and that the
6
whites of her eyes were red from appellant hitting and strangling
her. She also discussed a photograph showing that her tongue
was swollen and bruised. She identified a photograph of the
sweater she was wearing, which had blood on the neckline and
shoulder, and her pants; she noticed after she regained
consciousness in appellant’s car that her pants were a little wet,
but she did not know why.
While she was at the clinic, she used the clinic’s computer
to send a message to Rajon, telling him: “He choked me out when
I tried to leave. I can’t even begin to explain. He fucking raped
me, dude. He choked me. I couldn’t fucking breathe, and I tried
to fight back. I broke his window, but I woke up an hour later
and the bitch was fucking raping me. I was crying, dude. I
couldn’t move.” She testified that appellant told her during the
assault that she had cracked his windshield, and she thought it
must have happened when she was kicking before passing out.
Emily met with Rajon a few days later and gave him a
description of her assailant and his vehicle. Rajon said that
description matched someone with the nickname “Junkyard
Dog.” As they talked further, Emily recalled briefly meeting
appellant about four or five months before at a gathering with
friends.
A few months later, Emily identified appellant from a
photographic lineup as looking similar to her assailant. In
August 2017, Emily spoke to the police again while she was in a
rehabilitation facility. She admitted to smoking
methamphetamine rather than marijuana at the time of the
assault.
2. Guy and Rajon
Emily’s father, Guy, testified that she called him between
7
2:00 and 2:30 a.m. on April 27, 2016. She was crying, told him
she had been raped, and asked him to pick her up. Emily did not
want to call the police, but Guy called 911. Then he went to pick
Emily up. He testified that when he saw Emily, she was walking
slowly, shaking, and crying. The whites of her eyes were a deep
red, she had red bruises and scratches on her neck, and her
tongue was swollen and discolored, making it difficult for her to
talk.
The prosecution played the recording of Guy’s 911 call at
trial. Guy told the operator that Emily had called him and said
she had been raped and choked.
Rajon testified that he was texting with Emily on April 26,
2016 around 9:30 p.m. because they were trying to meet. At one
point, she stopped responding. Then, around 5:00 a.m. the next
morning, he got another text from Emily saying she had been
raped. He met with Emily about 10 to 12 hours later, and she
described her assailant. From that description, he thought it was
“Junkyard Dog,” whom he identified in court as appellant. Rajon
had also seen appellant in the area in a white SUV, the day
before or the day of the assault. Rajon testified that he met
appellant twice through Rajon’s uncle. He recalled seeing
appellant meet Emily once, briefly, a couple of days prior to the
assault.
3. Investigation
Officer Lance Novak of the Los Angeles Police Department
(LAPD) met with Emily at her friend’s apartment. He described
Emily as “visibly upset,” shaken, scared, and looking like “she
had been beaten up.” Her eyes were so bloodshot that “you
couldn’t see the whites of her eyes, more or less.”
8
The police took Emily to a clinic in Northridge for a sexual
assault examination. Novak observed remotely while Emily was
interviewed by medical personnel. He confirmed that the
statements Emily gave the nurse were “the same general story”
she had given him.
Marilyn Stotts, a nurse practitioner, performed the sexual
assault examination on Emily at the Northridge Center for
Assault Treatment Services. Emily reported to Stotts that she
had ingested marijuana within the past 72 hours and showered
after the attack. Emily estimated losing consciousness for an
hour during the assault. She reported pain in her tongue, mouth,
neck, and shoulder. Emily told Stotts that appellant strangled
her and hit her in the jaw. Stotts noticed that Emily had injuries
consistent with strangulation, including the scleral hemorrhages
in both eyes (resulting in reddened whites of the eye), as well as
injuries to her clavicle and neck, and a cluster of bruising on her
arm about the size of fingerprints. Stotts also noted bruising,
punctures, and swelling on Emily’s tongue. Stotts opined that
strangulation could cause a seizure, which would be consistent
with Emily’s tongue injuries if she bit her tongue while seizing.
She also noted cuts and abrasions to Emily’s genitalia.
Stotts opined that the injuries she observed were consistent
with the report Emily gave. She also noted some wetness in the
underwear and pants Emily was wearing at the time of the
assault. Stotts did not know whether it was urine, but testified
that loss of bladder function could occur after about 15 seconds of
strangulation.
LAPD Detective Esther Myape met with Emily at the rape
treatment clinic on April 27, 2016. Myape testified that Emily
was exhausted, upset, and crying. Two months later, Emily
9
identified appellant from a six-pack photographic lineup The
vaginal swabs taken from Emily during her sexual assault
examination contained semen that matched appellant’s DNA.
B. Rape of Debra
1. Debra’s testimony
Debra testified at the preliminary hearing on August 30,
2018 and her testimony was read at trial. Debra testified that
she was 18 years old at the time of the incident on April 28, 2016.
That evening, she was working as a prostitute at the corner of
Figueroa and Manchester in Los Angeles. As she walked down
the street, appellant pulled up alongside her in a small white
Jeep and offered her $100 for a “date.” Debra got into the front
seat of the car and appellant began to drive. She noticed a tattoo
on the right side of his face.
After driving for some time, appellant pulled into an alley.
He parked the passenger side of the car against a fence, which
made Debra uncomfortable because she was unable to get out of
the car. She asked him for the money and he laughed and said
he did not have any money. Debra testified that she tried not to
panic, and asked him, “So are you going to rape me?” He
responded, “I’m going to rape you.”
Appellant told Debra to get into the back seat of the car
and she complied because she was “already stuck.” As she did so,
she took off her long acrylic nails because “I was going to fight
him.” Appellant followed into the backseat and began trying to
choke Debra. She tried to push him off of her. Appellant then
punched her in her left eye so hard that she was “out. I just took
– I laid there.” Debra started to cry and appellant kept telling
her to shut up. She asked him to put on a condom but he refused.
He then inserted his penis into her vagina. Debra testified that
10
she was afraid he would kill her if she fought back. After a few
minutes of raping her, appellant ejaculated inside her, then fell
asleep on top of her. She could not move with his weight on her.
After a few hours, he woke up and put his penis inside her vagina
again. Debra began to cry again and then she threw up.
Appellant made her clean it up. Afterward, he asked her, “Are
you going to tell on me? . . . . Because if you are, then let me
know, so I could kill you now.” Debra said she would not.
Appellant took $20 out of her purse and also read her name aloud
from a card in her purse. He also took her cell phone.
Appellant let Debra out of the car and drove away. She
tried to see his license plate but could not, because her eye was
“all fucked up.” Debra got on the bus to go home. A woman came
up to her on the bus and asked what was wrong. Debra told her
that she had been assaulted. The woman called the police and
told Debra not to disclose that she was a prostitute “because if
you tell them that, they won’t help you.”
When the police arrived, Debra did not tell them she had
been working as a prostitute. Instead, she said that “some guys
kidnapped me.”
2. Investigation
LAPD officer Cody Silva responded on April 28, 2016 to the
911 call regarding Debra. She spoke to a witness, Akeisha, who
said that she had called 911 for Debra. Officer Silva also spoke to
Debra, and noticed that she was crying, extremely upset, and
that her left eye was swollen. Debra told Silva that she had been
forced into a car by two men.4
4After both victims identified appellant as the assailant,
the cases were coordinated. Detective Myape interviewed Debra
11
Amy Adler is a nurse practitioner at the rape treatment
center in Santa Monica. She conducted a sexual assault
examination on Debra on April 28, 2016. Adler testified that
when Debra arrived, her left eye was swollen shut. The area
around her eye was swollen, bruised, and tender and she
complained of pain on the left side of her face. Debra reported
vomiting twice during the assault. Debra also said that the
assailant hit her in the face and threatened to kill her. Debra
reported three instances of penile-vaginal penetration; Adler
testified that Debra had an abrasion and tenderness in her
vaginal area. Adler opined that her examination findings were
consistent with Debra’s statements regarding the assault.
LAPD detective Irma Castillo was the primary investigator
for Debra’s case. Castillo testified that when she met with Debra
following her sexual assault examination, Debra gave a
description of the suspect and told her that the assailant had
kept her cell phone. The next day, April 29, 2016, detectives
tracked the phone’s GPS and located appellant, who matched the
description given by Debra, including facial tattoos. Appellant
had Debra’s cell phone in his pocket. LAPD officers brought
Debra to the location where they had detained appellant. She
identified him as her assailant and the police arrested him.
Testing of the genital swabs taken from Debra during her sexual
assault examination detected semen matching appellant’s DNA.
II. Defense Evidence
Appellant did not present any affirmative evidence at trial.
in October 2017, and Debra admitted she was working as a
prostitute on the evening of the assault and was not kidnapped
as she initially reported.
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DISCUSSION
I. Admission of Debra’s Preliminary Hearing Testimony
Appellant contends that the trial court improperly found
Debra unavailable for trial and thereafter admitted her
preliminary hearing testimony. He argues that the use of this
testimony violated his rights to due process and confrontation.
He also argues that, at a minimum, the court should have found
Debra to be “infirm” and ordered a conditional examination
pursuant to section 1336. We conclude the court properly
admitted the testimony.
A. Background
Debra testified at the preliminary hearing on August 30,
2018, as detailed above, and defense counsel cross-examined her.
Defense counsel’s questions focused on the defense theory that
appellant and Debra engaged in consensual sex and appellant
then refused to pay her the agreed-upon amount.
The parties presented opening statements at trial on April
15, 2019. On April 17, in the middle of the prosecution’s case, the
prosecution moved to admit Debra’s preliminary hearing
testimony under Evidence Code sections 240 and 1291. The
prosecution reported that Debra had been a cooperative witness
until April 15, when she refused to be transported to court and
stated she did not want to testify or see appellant again. She
subsequently refused all further efforts at contact.
The court held a due diligence hearing on April 17, 2019, at
which the prosecution presented multiple witnesses. Detective
Myape testified as the investigating officer currently assigned to
Debra’s case. On April 5, she served Debra with a subpoena for a
court appearance on April 9, 2019. At the time, Debra was
cooperative, as she had been since the beginning of the case, and
13
appeared to be willing to come to court. It turned out Debra was
not needed that day, so Myape made arrangements to meet with
Debra on April 15 to prepare for her trial testimony. Debra
agreed to be picked up by Detective Jeffrey Allen and driven to
the courthouse for the meeting. Myape sent her a reminder on
the day of the meeting. She got no response, which was unusual,
as Debra always responded quickly to texts and calls.
On April 15, at the time of the planned meeting, Myape
asked Christine Von Helmolt from the sex crimes division in the
District Attorney’s office to meet Debra at the courthouse. Von
Helmolt testified that Detective Allen called her around 3:00 p.m.
from Debra’s apartment and advised that Debra was not willing
to come with him to court. Von Helmolt spoke with Debra over
the phone; Debra stated that she was having child care issues
and family problems, that “she wasn’t willing to come, that she
wasn’t feeling it, and she wasn’t going to come.” Von Helmolt
testified that she offered “a number of solutions to the problems
[Debra] presented,” including providing child care, meeting with
a victim advocate to discuss services for her family problems, and
assuring Debra that all she had to do that day was review the
preliminary hearing transcript in preparation for trial. Debra
responded “very negatively. She kept insisting that she is not
feeling it. She’s not coming.” In the middle of this conversation,
Debra handed the telephone back to Allen, refused to talk
further, and refused to go with him.
After court proceedings that day, Myape went to Debra’s
residence. Myape testified that she arrived around 7:00 p.m. and
Debra answered the door. Debra told Myape that she did not
want to come to court and slammed the door. Myape spoke
through the door for several minutes, trying to reassure Debra
14
that “I wanted to talk to her about what was going on with her;
that I could help her.” Debra opened the door again, started
crying, said she did not want to be on the stand testifying again,
and “she did not want to be in the same room with the defendant
again. She didn’t want to look at him.” Debra said she had
already testified once and did not understand why that was not
enough. Myape gave her some cupcakes she had brought and a
subpoena to appear the next day, April 16. Debra took them and
closed the door.
Myape texted Debra later that night that she was
concerned about her and what she was going through, and offered
to take her to talk to a victim’s advocate the next morning. There
was no response. The next morning, she went to Debra’s
residence and was informed by the security guard that Debra had
just left. Myape called and texted Debra but received no
response. She also went to the daycare where Debra took her
child. She saw Debra’s child there, but did not see Debra. Myape
asked the apartment building security guard to call if Debra
came home. She received a call from the guard around 10:00 a.m.
and sent Detective Danetta Menifee and her partner to the
apartment.
Detective Menifee testified that she and her partner went
to Debra’s residence around 11:00 a.m. on April 16 to try to make
contact. They knocked on Debra’s door and could hear a TV on
inside, but there was no answer. Menifee also called Debra’s
phone several times, but there was no answer and no voicemail.
Detective Castillo, the initial investigating officer on
Debra’s case, also went to Debra’s residence on April 16 to try to
convince her to come to court. She testified that she and another
detective arrived around 1:30 p.m. The security guard directed
15
them to Debra’s apartment and said that Debra was home.
Castillo knocked on the door for about 15 minutes and heard the
television volume increase, but no one answered the door. They
found out from the security guard that the apartment did not
have a landline. They also contacted the building manager; he
provided the phone number for Debra’s stepfather, who lived
with Debra. Castillo called and spoke with the stepfather, who
was not home at the time, and asked him to contact Debra and
have her come to the door. He refused, stating that “Debra did
not want to come to court.” Castillo testified that she continued
speaking to him for several more minutes and finally persuaded
him to ask Debra to come out of the apartment to speak to
Castillo in person. Castillo went back to the apartment and
knocked again, calling out to Debra to come out and speak with
her. No one came out. The detectives left around 2:30 p.m.
Castillo also called Debra’s phone five times and left messages,
and left her business card at the apartment. She never received
any response from Debra.
Detective Menifee and her partner returned to Debra’s
residence around 5:00 p.m. on April 16, hoping to catch Debra
when she left the building to pick up her child from the daycare
facility. They did not see Debra and there was no answer on her
phone. They also went to the daycare facility and spoke with an
employee. The employee reported that Debra should arrive prior
to their closing time at 6:00 pm. Menifee and her partner waited;
later, they saw a man leaving the daycare with a child matching
the description for Debra’s child. They followed the man and
child back to Debra’s apartment, where they saw Debra’s
stepfather in the lobby. The stepfather complained that the
detectives were harassing him and Debra, and that Debra did not
16
want to testify. Menifee explained how important Debra’s
testimony was, but the stepfather repeated that Debra did not
want to testify, and if that meant appellant “gets out of prison, he
gets out of prison.” Menifee had no further contact with Debra or
her stepfather after that.
Detective Myape texted Debra at the end of the day on
April 16, informing her that the court had issued a bench
warrant for her appearance, but was holding it until the following
day, so Debra had another chance to come to court. Myape again
offered Debra transportation. She also sent the message to
Debra’s stepfather. She received no response to either text
message.
Gregory Hernandez, an investigator for the District
Attorney’s office, testified that he arrived at Debra’s residence
around 6:00 a.m. on April 17, waited outside for about 30
minutes, then knocked at her door. There was no response. He
waited in the hallway for another 35 minutes, then saw Debra’s
stepfather, who reluctantly agreed to get Debra from the
apartment. When Debra came out, Hernandez explained that it
was important for her to come to court. Debra stated that she did
not want to go to court. Hernandez recorded this encounter and
the prosecutor played the video of this exchange during the due
diligence hearing.
The court then heard argument on the due diligence issue.
The prosecutor pointed out that Debra had previously been
cooperative, attended the preliminary hearing, and maintained
contact with the detectives. The prosecution knew where Debra
lived and properly served her with trial subpoenas. Thus, she
argued that the prosecution had not failed to secure Debra’s
attendance; rather, the issue was “a question of her not wanting
17
to testify here in court.” She also argued that Hernandez, “if
authorized, could have arrested her this morning and brought her
before the court. However, the court would be powerless to
compel her to testify.”5 The prosecutor contended that Debra had
made it very clear that she did not want to be in court, “to be in
the same room as the defendant and to testify again. There
really is nothing else we can do to compel her to come to court
and testify.”
Defense counsel responded that the evidence “indicates
that [Debra] probably is suffering from a post-traumatic stress
syndrome as a result of the rape. And I think that arguably one
could argue that that makes her mentally infirm.” Defense
counsel argued that the court should order a conditional
examination pursuant to section 1335. The court disagreed,
stating that “a conditional examination is one that occurs
basically prior to a trial. It usually takes place in a courtroom,
not in some remote place. And it’s video-taped and recorded. The
jury is not here . . . . But the defendant is present. . . . It’s not
something that you do during a trial.” The court also found that
defense counsel was not qualified to offer an opinion regarding
whether Debra was suffering from post-traumatic stress. The
court continued: “I’m certainly not prepared to reach a diagnosis
about the witness or to make a determination that she is
mentally infirm. [¶] So I just don’t see how this conditional
5Code of Civil Procedure section 1219, subdivision (b)
provides: “Notwithstanding any other law, a court shall not
imprison or otherwise confine or place in custody the victim of a
sexual assault or domestic violence crime for contempt if the
contempt consists of refusing to testify concerning that sexual
assault or domestic violence crime.”
18
examination has application to the situation that we’re in now.”
The court agreed with the prosecution that even if Hernandez
forcibly brought Debra to court, “I cannot find her in contempt,
nor could I imprison her for not testifying. . . . [¶] So I don’t
really know what reasonably could be done.”
Defense counsel reiterated that appellant’s rights could be
protected by having a conditional examination. The court
responded that “there is no conditional examination. We are in
trial.” The prosecutor pointed out that even with a conditional
examination, appellant would be present, and that Debra “made
clear to Detective Myape that she does not want to be in the same
room as the defendant, nor does she want to talk about the
assault again.” Defense counsel suggested that appellant “could
have waive[d] his presence” at a conditional examination. The
court asked “are you suggesting now that your client is willing to
waive his presence . . . so that she could testify in front of the
jury? Are you really suggesting that?” Defense counsel said no.
The court concluded “that the prosecution has exercised
due diligence” to secure Debra’s presence, but that she was
unavailable as a witness. Accordingly, the court allowed the
prosecution to read the transcript of her testimony from the
preliminary hearing.
B. Analysis
The state and federal constitutions afford a criminal
defendant the right to confront the prosecution’s witnesses. (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15.) That right is not
absolute, however; under certain circumstances, the prosecution
may introduce a witness’s out-of-court statements at trial.
(People v. Herrera (2010) 49 Cal.4th 613, 621 (Herrera).)
Evidence Code section 1291 sets forth the requisite
19
circumstances. Under that statute, a witness’s prior testimony is
not rendered inadmissible if (1) “the declarant is unavailable as a
witness,” and (2) the “party against whom the former testimony
is offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that
which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2).)
Here, appellant contends the prosecution did not establish the
first element.
A witness is unavailable when he or she is “[a]bsent from
the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his
or her attendance by the court’s process.” (Evid. Code, § 240,
subd. (a)(5); see also People v. Valencia (2008) 43 Cal.4th 268,
291-292 [in determining due diligence “California law and federal
constitutional requirements are the same.”].) To establish the
exercise of reasonable or due diligence and unavailability, “the
prosecution must show that its efforts to locate and produce a
witness for trial were reasonable under the circumstances
presented.” (Herrera, supra, 49 Cal.4th at p. 623.)
There is no “‘mechanical definition’” of reasonable diligence;
the term “[r]easonable diligence, often called ‘due diligence’ in
case law, ‘connotes persevering application, untiring efforts in
good earnest, efforts of a substantial character.’” (People v.
Cogswell (2010) 48 Cal.4th 467, 477 (Cogswell); People v. Cromer
(2001) 24 Cal.4th 889, 904 (Cromer).) “A witness who is absent
from a trial is not ‘unavailable’ in the constitutional sense unless
the prosecution has made a ‘good faith effort’ to obtain the
witness’s presence at the trial.” (Herrera, supra, 49 Cal.4th at p.
622, citations omitted.) “‘The length[ ] to which the prosecution
20
must go to produce a witness . . . is a question of reasonableness.’
The ultimate question is whether the witness is unavailable
despite good-faith efforts undertaken prior to trial to locate and
present that witness.’” (Ibid.)
We “‘defer to the trial court’s determination of the historical
facts of what the prosecution did to locate an absent witness,’”
and “‘independently review whether those efforts amount to
reasonable diligence sufficient to sustain a finding of
unavailability.’” (People v. Thomas (2011) 51 Cal.4th 449, 503.)
Applying this mixed standard of review, we conclude that the
trial court did not err in finding that the prosecution exercised
reasonable diligence to produce Debra.
Appellant contends that the trial court should have taken
further steps to assess Debra’s willingness to testify, including
bringing her to court despite her express refusal. We find
Cogswell, supra, 48 Cal.4th 467 on point. There, the victim,
Lorene, was visiting California from Colorado when she was
sexually assaulted by Cogswell. She testified at the preliminary
hearing, but refused to return to California for trial. (Id. at p.
471.) The prosecution sought to compel her attendance through a
process set forth in the Uniform Act to Secure the Attendance of
Witnesses from without the State in Criminal Cases (§ 1334 et
seq.) (Uniform Act), under which a Colorado court issued a
subpoena to the victim. (Cogswell, supra, 48 Cal.4th at p. 472.)
The victim refused to appear at trial and the prosecutor
explained to the court that the victim had said “that she has had
as much of this matter as she can possibly handle. . . . And she
has emotional issues with coming back here to court.” (Id. at p.
473.) The trial court declared her unavailable and permitted the
prosecution to introduce her preliminary hearing testimony.
21
(Ibid.)
The Court of Appeal reversed, finding that to establish
reasonable diligence, the prosecution was required to use the
provision of the Uniform Act allowing the court to detain and
transport the victim to California. (Cogswell, supra, 48 Cal.4th
at p. 474.) The Supreme Court disagreed, concluding that the
prosecution had used reasonable diligence in attempting to
obtain the witness’s presence at trial. (Id. at p. 473.) The court
held that Code of Civil Procedure section 1219, subdivision (b) did
not prohibit the prosecution from invoking the Uniform Act’s
“custody-and-delivery provision,” but conversely, the prosecution
was not required to do so before it could establish due diligence.
(Id. at pp. 476-477.) The court reasoned, “To have a material
witness who has committed no crime taken into custody, for the
sole purpose of ensuring the witness’s appearance at a trial, is a
measure so drastic that it should be used sparingly. (See, e.g.,
State v. Reid (1976) 114 Ariz. 16, 559 P.2d 136, 145 [‘Confinement
of a witness, even for a few days, not charged with a crime, is a
harsh and oppressive measure which we believe is justified only
in the most extreme circumstances.’].) Confinement would be
particularly problematic when, as in this case, the witness is a
sexual assault victim.” (Cogswell, supra, 48 Cal.4th at p. 477–
478.) The court identified potential concerns, including that
“sexual assault victims are particularly likely to be traumatized
because of the nature of the offense,” and that “[e]ven fewer such
crimes would be reported if sexual assault victims could be jailed
for refusing to testify against the assailant.” (Id. at p. 478.)
The Cogswell court thus concluded that “the prosecution
acted reasonably when it chose not to request—even though
permitted under the Uniform Act’s custody-and-delivery
22
provision—to have sexual assault victim Lorene taken into
custody and transported from Colorado to California to testify at
defendant’s trial.” (Cogswell, supra, 48 Cal.4th at p. 478.) Given
the victim’s repeated refusals to testify despite issuance of a valid
subpoena, the court found it was “highly unlikely that had
Lorene been taken into custody, she would have become a
cooperative witness. . . . Having spoken directly to Lorene, the
prosecutor was in the best position to assess the strength of her
determination not to testify at defendant’s trial. Based on that
assessment, the prosecutor could reasonably conclude that
invoking the Uniform Act’s custody-and-delivery provision would
not have altered Lorene’s decision not to testify again about the
sexual assault, and thus it would have been a waste of time and
resources.” (Id. at p. 479.)
We reach the same conclusion here, finding that
“confinement of a sexual assault victim to ensure her presence at
the assailant’s trial would . . . not be a reasonable means of
securing the witness’s presence.” (Cogswell, supra, 48 Cal.4th at
p. 479.) Numerous individuals from the district attorney’s office
and the LAPD called and visited Debra as soon as she began
refusing to come to court and continued their efforts multiple
times over the course of three days, attempting to address her
concerns and convince her to testify against appellant at trial.
They also made the same pleas to Debra’s stepfather, explaining
the importance of her testimony to the case. When they could not
locate Debra, they continued to attempt to reach her by phone,
through her building’s employees, her stepfather, and at her
child’s daycare center. Despite these attempts, Debra repeatedly
stated that she would not testify again, becoming visibly upset
and stating that she did not want to be in the same room as
23
appellant. She also took steps to avoid further contact with the
prosecution, refusing to answer her phone or come to the door,
and sending someone else to pick up her child from daycare.
Under these circumstances, we agree with the trial court’s
conclusion that the prosecution exercised due diligence in its
efforts to secure Debra as a trial witness. After repeated
attempts to convince Debra, “the prosecutor was in the best
position to assess the strength of her determination not to
testify.” (Cogswell, supra, 48 Cal.4th at p. 479.) Moreover, it was
not error for the trial court to find under Cogswell that the
drastic step of taking Debra into custody and transporting her to
court was not necessary to demonstrate due diligence.
We are not persuaded otherwise by appellant’s assertion
that simply because Debra lived in California, taking her into
custody, bringing her to court, and forcing her into the same room
as her assailant would involve “relatively minimal (compared to
Cogswell) effort or trauma to the victim.” Appellant’s suggestion
that the rationale of Cogswell is only applicable to “a truly
extreme case” is belied by the language of that decision and is not
supported by citation to any authority. The prosecution here
presented evidence of extensive efforts to persuade Debra to
testify, which were met with absolute resistance from the
witness. The trial court was entitled to rely on the prosecution’s
assessment and did not err in concluding that forcing an already
upset sexual assault victim to come to court was unwarranted
and unlikely to produce her cooperation.
Appellant also contends that the trial court erred in
denying his request for a conditional examination of Debra
pursuant to section 1336. “In all criminal cases, ‘other than those
for which the punishment may be death’ (§ 1335, subd. (a)), the
24
prosecution may apply for a court order compelling a material
witness to submit to a conditional examination if the witness ‘is
about to leave the state, or is so sick or infirm as to afford
reasonable grounds for apprehension that he or she will be
unable to attend the trial, or is a person 65 years of age or older,
or a dependent adult’ (§ 1336, subd. (a).)” (People v. McCoy (2013)
215 Cal.App.4th 1510, 1519.) The party requesting the
conditional examination must submit an affidavit stating, among
other things, that “the witness is about to leave the state, or is so
sick or infirm . . . that he or she will not be able to attend the
trial. . . .” (§ 1337, subd. (d)(1).) During the conditional
examination, the defendant has the right to be present with
counsel. (§ 1340, subd. (a).)
We find no error in the trial court’s refusal to order a
conditional examination of Debra during trial. In his opening
brief, appellant cited no authority supporting his contention that
a conditional examination could be employed where a sexual
assault victim has been declared unavailable mid-trial. In reply,
he cites People v. Foy (2016) 245 Cal.App.4th 328, 341-342 as
support. “Obvious reasons of fairness militate against our
considering this poorly developed and untimely argument.”
(Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.)
Moreover, appellant’s belatedly-cited case is inapposite. In
People v. Foy, supra, at pp. 328, 339-340, a conditional
examination was taken over a month before trial because the
witness to a robbery had moved out of the state. In addition, it
was not error for the court to conclude that Debra would have
been just as unwilling to testify during a conditional examination
as she would have at trial, particularly given appellant’s
presence.
25
II. CALCRIM No. 1191B
Appellant contends the trial court erred by instructing the
jury that it could use a charged sexual offense to find a
propensity to commit sexual offenses, based on a modified version
of CALCRIM No. 1191B. Based on this instruction, he asserts
that the jury might have found he committed one of the charged
offenses beyond a reasonable doubt and then “bootstrapped” that
finding to convict him of other offenses without making the
requisite finding that he committed each offense beyond a
reasonable doubt. We find no error.
A. Background
The trial court instructed the jury with a modified version
of CALCRIM No. 1191B as follows: “[The] People presented
evidence that the defendant committed the crime of Rape as
charged in Count One through Four. [¶] If the People have
proved beyond a reasonable doubt that the defendant committed
one or more of these crimes, you may, but are not required to,
conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision,
also conclude that the defendant was likely to commit and did
commit the other sex offense charged in this case. [¶] If you find
that the defendant committed one of these crimes, that
conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant
is guilty of the other crime. The People must still prove each
charge beyond a reasonable doubt.” Defense counsel did not
object to the instruction.
B. Legal framework
“Character evidence, sometimes described as evidence of a
propensity or disposition to engage in a type of conduct, is
26
generally inadmissible to prove a person’s conduct on a specified
occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159
(Villatoro), citing Evid. Code, § 1101, subd. (a).) However, the
Legislature has created a specific exception to the rule against
admitting character evidence in cases involving sexual offenses.
(Evid. Code, § 1108, subd. (a) (§ 1108(a)); see also Villatoro,
supra, 54 Cal.4th at p. 1159.)
As relevant here, section 1108(a), provides, “In a criminal
action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense
or offenses is not made inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” “Enacted
in 1995, section 1108 ‘implicitly abrogates prior decisions of this
court indicating that “propensity” evidence is per se unduly
prejudicial to the defense.’” (Villatoro, supra, 54 Cal.4th at p.
1160, quoting People v. Falsetta (1999) 21 Cal.4th 903, 911
(Falsetta).)
In Villatoro, supra, 54 Cal.4th at p. 1160, our Supreme
Court considered whether section 1108 permitted using evidence
of other charged sexual offenses as well as uncharged offenses.
The court concluded that it did, reasoning that “nothing in the
language of section 1108 restricts its application to uncharged
offenses. Indeed, the clear purpose of section 1108 is to permit
the jury’s consideration of evidence of a defendant’s propensity to
commit sexual offenses.” (Id. at p. 1164; see also Falsetta, supra,21 Cal.4th at p. 915 [“[C]ase law clearly shows that evidence that
[a defendant] committed other sex offenses is at least
circumstantially relevant to the issue of his disposition or
propensity to commit these offenses.”].) Thus, the court
concluded: “In light of this clear purpose, we perceive no reason
27
why the Legislature would exclude charged sexual offenses from
section 1108’s purview, and no indication that it did so in either
the text of section 1108 or its legislative history. Whether an
offense is charged or uncharged in the current prosecution does
not affect in any way its relevance as propensity evidence.”
(Villatoro, supra, 54 Cal.4th at p. 1164.)
C. Analysis
Appellant contends that instructing the jury with
CALCRIM No. 1191B violated his due process rights.
Preliminarily, respondent argues that appellant forfeited this
argument by failing to object at trial. Failure to object to
instructional error forfeits the issue on appeal unless the error
affects a defendant’s “substantial rights.” (§ 1259; People v. Flood
(1998) 18 Cal.4th 470, 482, fn. 7; People v. Felix (2008) 160
Cal.App.4th 849, 857.) The question is whether the error
resulted in a miscarriage of justice under People v. Watson (1956)
46 Cal.2d 818 (Watson). (People v. Arredondo (1975) 52
Cal.App.3d 973, 978.)
Here, appellant argues that the purported instructional
error implicates his substantial rights; moreover, to the extent
that his counsel’s failure to object worked a forfeiture, he
contends that his counsel rendered ineffective assistance. We
address his contentions on the merits to determine whether there
was an impairment of his substantial rights or ineffective
assistance of counsel. (See People v. Felix, supra, 160
Cal.App.4th at p. 858; People v. Anderson (2007) 152 Cal.App.4th
919, 927.)
Appellant’s contention that CALCRIM No. 1191B lowered
the prosecution’s burden of proof is squarely foreclosed by the
holding in Villatoro, supra, 54 Cal.4th 1152. There, the court
28
considered and approved a modified version of CALCRIM No.
1191B substantially similar to the one given here. (Id. at p.
1167.) The court concluded that “the instruction clearly told the
jury that all offenses must be proven beyond a reasonable doubt,
even those used to draw an inference of propensity. Thus, there
was no risk the jury would apply an impermissibly low standard
of proof.” (Id. at p. 1168.) Indeed, the Villatoro court expressly
rejected the suggestion appellant raises here that the jury might
not be able to engage in the “mental gymnastics” required to
understand the applicable burden of proof. (Ibid.) Thus, the
court concluded that “[t]he modified version of CALCRIM No.
1191 did not impermissibly lower the standard of proof or
otherwise interfere with defendant’s presumption of innocence.”
(Ibid.)
Appellant acknowledges Villatoro, but appears to suggest
that we follow the dissent. We are bound to follow the Supreme
Court’s decision. (People v. Johnson (2012) 53 Cal.4th 519, 527-
528; Auto Equity Sales, Inc. v. Superior Court of Santa Clara
County (1962) 57 Cal.2d 450, 455.) Appellant’s claim of
unfairness here parallels the objections of the dissenters in
Villatoro that the instruction would permit the “bootstrapping of
verdicts” and the possibility that the jury might “‘simply conclude
that because it found the defendant guilty of one count, he must
be guilty of the others.’” (Villatoro, supra, 54 Cal.4th at pp. 1170,
1175, 1179, conc. & dis. opn. of Corrigan, J.) However, the
majority disagreed, concluding that the instruction “did not
permit the jury to convict defendant of one count based simply on
its guilty ‘verdict’ on any other counts. [Citation.] It is not the
verdict itself, but rather the jury’s factual finding that defendant
has committed a sex offense, that the jury relies on to draw an
29
inference of disposition or propensity.” (Id. at p. 1165.) The court
also noted that the instruction, like the one given here, “affirmed
that evidence that the defendant committed a charged offense ‘is
not sufficient by itself to prove the defendant is guilty of another
charged offense.’” (Ibid.)
Appellant also argues that the admission of propensity
evidence was unduly prejudicial, citing Evidence Code section
352. But apart from his general objection over the use of a
charged offense under section 1108, appellant has not articulated
any error by the trial court based on Evidence Code section 352 in
admitting evidence of two similar attacks that occurred only two
days apart. (See Villatoro, supra, 54 Cal.4th at pp. 1168-1169
[finding that evidence of two similar attacks “was highly
probative of defendant’s propensity to commit such crimes, and
its value substantially outweighed any prejudice”].)6
III. Admission of Hearsay Statements
Appellant argues that the court erred in admitting the
reports of the sexual assault examinations conducted by nurse
practitioners Stotts and Adler because they contained “highly
prejudicial hearsay.” Specifically, he objects to the portion of the
reports containing statements made by the victims. We conclude
that even if the reports were admitted in error, any error was
harmless.
A. Factual Background
During trial, both Stotts and Adler testified that they
completed a state-mandated form as part of their sexual assault
6Because we find no error, we need not address appellant’s
contention that his attorney’s failure to preserve this claim
constituted ineffective assistance of counsel.
30
examination protocol. These forms included a sexual assault
history of the patient, which Stotts and Adler testified that they
used to guide the subsequent physical examination and also to
assist them in reaching an opinion as to whether the examination
results were consistent with what the patient reported.
When the prosecutor began to question Stotts regarding the
form she completed for Emily, defense counsel objected “on the
grounds of hearsay as to anything said by the victim.” He argued
that the report included a narrative of what the victim said had
occurred and that it was no “different than a police report which
is typically objectionable as hearsay.” The prosecutor countered
that the statements were “used by the expert in order to guide
her . . . medical examination. And she also used it to form her
opinion that the exam was consistent with the history, and that
is a non-hearsay purpose for these statements.” The court ruled
that the evidence was admissible because it was “not really
offered for the truth of the matter; it’s offered for how the expert
then conducts the examination and reaches an opinion. And you
can even cross-examine her on the point that she doesn’t know
whether the patient is telling the truth.” Defense responded “ok”
and questioning continued.
Later, during her testimony, Stotts acknowledged that it
was not her job to judge if what the patient told her was true.
She also testified that the primary purpose of the sexual assault
examination was to gather evidence to give to the police. The
custodian of records for the Santa Monica rape treatment center
also testified that the forms were used to collect evidence for law
enforcement purposes.
Defense counsel did not object when the prosecutor
questioned Adler regarding the form she completed for Debra’s
31
examination. However, at the close of evidence, defense counsel
objected to the admission of both forms into evidence. He again
asserted hearsay grounds, arguing that the forms were “akin to a
police report” and “clearly intended for law-enforcement
purposes, not for treatment or diagnosis.” The prosecutor
reiterated that the statements were offered for a non-hearsay
purpose as the nurse practitioners used them to “guide their
examination as well as to conclude whether or not the exam is
consistent with the history.” The court overruled the objection,
but stated that it would instruct the jury on the limited purpose
of the evidence and that defense counsel was free to argue that
the “experts’ opinions aren’t reliable because the information that
was given to them is not true.”
The jury was instructed that the relevant exhibits “contain
alleged statements from Emily [ ] and Debra [ ] made to a Nurse
Practitioner at the time of a sexual assault examination. Those
statements are not offered for their truth, but rather to show the
basis for any opinions expressed by the nurse practitioner.” The
jury was also instructed that it could consider that evidence only
for that purpose and “for no other.”
B. Legal Standards
Appellant contends that the sexual assault examination
reports were inadmissible hearsay and should have been
excluded. Respondent asserts that the reports were admissible
as business records under Evidence Code section 1271.
A trial court’s ruling on the admissibility of evidence,
including one that turns on the hearsay nature of the evidence, is
reviewed under the abuse of discretion standard. (People v.
Waidla (2000) 22 Cal.4th 690, 725.) Hearsay is “evidence of a
statement that was made other than by a witness while testifying
32
at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible
unless it falls under an exception. (Id., subd. (b).)
Pursuant to Evidence Code section 1271, certain business
records can be excepted from the hearsay rule. Admissible
business records are those “writings made in the regular course
of business, at or near the time of the event, and created through
sources of information and a method of preparation reflecting its
trustworthiness.” (People v. Sanchez (2016) 63 Cal.4th 665, 695,
fn. 21 (Sanchez).) However, when a business record “is not made
to facilitate business operations but, instead, is primarily created
for later use at trial, it does not qualify as a business record.”
(Ibid., citation omitted.)
Documents may also contain several layers of hearsay. “An
emergency room report, for example, may record the observations
made by the writer, along with statements made by the patient.
If offered for its truth, the report itself is a hearsay statement
made by the person who wrote it. Statements of others, related
by the report writer, are a second level of hearsay. Multiple
hearsay may not be admitted unless there is an exception for
each level.” (Sanchez, supra, 63 Cal.4th at p. 675.)
C. Analysis
We are not persuaded that respondent has established the
admissibility of the reports as business records. First, the
testimony by Stotts, Adler, and the custodian of records
suggested that the state-mandated forms were generated
primarily for law enforcement purposes and use as evidence in a
court, rather than as a medical record, which may disqualify
them as business records. (See Sanchez, supra, 63 Cal.4th at p.
695, fn. 21; People v. McVey (2018) 24 Cal.App.5th 405, 415
33
[police reports were not subject to business records hearsay
exception because “‘the regularly conducted business activity is
the production of evidence for use at trial’”], quoting Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 321.)
Second, the findings and observations of the nurse
practitioners recorded on the forms constituted only the first
layer of hearsay. Respondent ignores the fact that the
statements the victims made to Stott and Adler, which they in
turn recorded on the forms, made up a second, distinct layer of
hearsay for which an independent hearsay exception was
required. (Sanchez, supra, 63 Cal.4th at p. 675.) Respondent
offers no grounds apart from the business records exception to
admit the victims’ statements. However, as we discuss post, any
error in admitting these statements was harmless.
We note that even where hearsay is properly admitted
pursuant to an exception for purposes of state law, it may
nonetheless violate the Sixth Amendment’s confrontation clause.
(Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford)
[holding that the admission of testimonial hearsay violates the
confrontation clause unless the declarant is unavailable for trial
and the defendant had a prior opportunity to cross-examine the
declarant].) Appellant made a passing reference to
“confrontation” in his appellate briefing, but did not properly
raise the argument on appeal that the admission of the victims’
statements violated Crawford.
Moreover, appellant did not properly preserve an objection
on this basis at trial. Instead, defense counsel objected only on
the basis that the statements were hearsay; neither counsel nor
the court raised the issue of a federal constitutional violation.
Thus, we conclude that even if he had properly raised it on
34
appeal, appellant would have forfeited this claim. (People v.
Redd (2010) 48 Cal.4th 691, 730–731 [the defendant “did not
raise an objection below based upon the confrontation clause, and
therefore has forfeited this claim”]; People v. Raley (1992) 2
Cal.4th 870, 892 [hearsay objection did not preserve
confrontation clause argument for appeal], superseded by statute
on other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1,
63, fn. 8; see also People v. Holmes (2012) 212 Cal.App.4th 431,
435–436 [confrontation clause objection preserved only “where ...
the context makes clear that the court and opposing counsel were
aware that the confrontation clause was the basis of the hearsay
objection”].)
Because appellant has not preserved an objection based on
a federal constitutional violation, any error in admitting the
sexual assault reports at trial is an issue of state law only and is
subject to the harmless-error analysis under Watson, supra, 46
Cal.2d at p. 836. (People v. Leach (1975) 15 Cal.3d 419, 445.)
Under this standard, we reverse a conviction only where “it is
reasonably probable that a result more favorable to [the
defendant] would have been reached in the absence of the error.”
(Watson, supra, at p. 836.)7
Here, it is not reasonably probable the jury would have
reached a different result had the court excluded the sexual
assault examination reports, particularly the victims’ statements
during the examination. Emily testified in great detail regarding
the assault by appellant, and Debra’s preliminary testimony was
read at trial. The central details provided by both women of the
7Indeed, given the strength of the evidence here, we would
find any error harmless under any standard.
35
incidents were corroborated in multiple ways—other witnesses
(both civilian and police) confirmed that Emily and Debra had
reported being assaulted and raped that night, Emily
contemporaneously sent text messages to her friend with the
same statements, photographs of their injuries matched their
descriptions of the incidents, and genital swabs taken from both
victims revealed semen containing appellant’s DNA. Moreover,
both women independently identified appellant as their assailant
and described similar incidents, bolstering the credibility of each
victim’s account, as there was no indication they had ever met.
Indeed, even absent the victims’ statements, the nurse
practitioners’ testimony regarding their observations of the
victims’ injuries further supported the convictions. Thus, any
error was harmless.
IV. Sentencing
Appellant contends the matter must be remanded for
resentencing because the trial court “failed to afford mitigating
weight to appellant’s youth.” We disagree.
A. Factual Background
At the sentencing hearing, the trial court indicated it had
read and considered the prosecution’s sentencing memorandum,
the probation officer’s report, and the Static 99 R assessment
report, which it described as a “diagnostic tool that is utilized to
predict future dangerousness of a defendant who is accused of
committing sexually violent offenses.” The court stated that
appellant was assessed at “a level 7 which is well above average
risk to re-offend. . . . I will say that in all of the Static 99 reports
that I have seen over the years, this is the highest number that
I’ve ever seen in a report of this nature. And it speaks to the
dangerousness of Mr. Cousin[ ] and his likelihood to re-offend if
36
given the opportunity.”
Defense counsel asked the court to consider factors
including appellant’s age and family circumstances at the time of
the incidents. Appellant was 19 at the time he committed the
rapes. Defense counsel also argued that the victims were “not
normal” victims because “one of them is a prostitute” and the
other was involved in “the use of drugs,” and therefore the
circumstance of the offenses were “somewhat different than if
this was just a willy-nilly rape of a person out on the street.” The
court rejected this argument as “incredibly offensive . . . and
offensive to women, all women, including myself and the other
women that are in this courtroom.”
When imposing appellant’s sentence, the court stated that
“there are 18 year-olds and there are 18 year-olds. And the
defendant that I see before me in court has been no stranger to
the criminal justice system over the years.” The court noted that
there had been unsuccessful efforts to rehabilitate appellant as a
juvenile and that he had already incurred multiple convictions as
an adult. Additionally, the court found that although appellant
may have experienced adverse circumstances in his life, he “has
apparently decided that that entitles him to . . . victimize
whomever he wishes to. And he does that on a fairly consistent
basis. [¶] And he’s a big guy. . . . And these women were no
match for him and his forcible conduct.” The court noted the very
high risk based on the assessment tool that appellant would
continue to commit “offenses of this nature in the future and
victimize other women.”
The court acknowledged that appellant’s age was the only
possible mitigating factor, but concluded that, “considering the
sophistication and the dangerousness that he’s displayed, it
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doesn’t seem to be a mitigating factor here.” Further, the court
found that aggravating circumstances clearly outweighed the
mitigating circumstances, based on the vulnerability of the
victims, the violence involved, the failure of other efforts,
including appellant’s failure to comply with the terms and
conditions of probation, and the increasing seriousness of his
crimes, all “indicate that increased penalty is appropriate.”
However, the court noted that appellant could be entitled to an
early parole hearing because of his age and could potentially earn
an early release “if he is able to change his life around.”
B. Analysis
Appellant argues that the court was required to account for
his youth8 when determining his sentence but refused to do so.
He further contends that the resulting imposition of a sentence of
70 years to life plus 16 years is the functional equivalent of life
without parole and thus constitutes cruel and unusual
punishment in violation his Eighth Amendment rights.
Appellant relies on a line of cases holding that the law
requires children to be treated differently from adults for
sentencing purposes, including Graham v. Florida (2010) 560
U.S. 48 (Graham), Roper v. Simmons (2005) 543 U.S. 551 (Roper),
Miller v. Alabama (2012) 567 U.S. 460 (Miller), and People v.
Caballero (2012) 55 Cal.4th 262 (Caballero). In Graham, the
Unites Stated Supreme Court held that sentencing a juvenile to
life without the possibility of parole for a nonhomicide offense
8 We note that in his appellate briefing, appellant
alternately contends that he was 18 or 19 years old at the time of
the offenses; the evidence in the record demonstrates that he was
19.
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violates the Eighth Amendment’s prohibition of cruel and
unusual punishment. (Graham, supra, 560 U.S. at p. 79.) The
court noted the “fundamental differences between juvenile and
adult minds” and that juveniles are “more capable of change than
are adults.” (Id. at p. 68; see also Miller, supra, 567 U.S. at p.
479 [“the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile
offenders”].) In Caballero, supra, 55 Cal.4th at p. 268, the
California Supreme Court applied these principles to hold that an
aggregate determinate sentence of over 100 years violated
Graham’s requirement that “a state must provide a juvenile
offender ‘with some realistic opportunity to obtain release’ from
prison during his or her expected lifetime.” The court also laid
out specific mitigating circumstances that must be considered by
a sentencing court before determining at what point juveniles can
seek parole, including their age and their physical and mental
development. (Id. at pp. 268-269.)
This line of cases does not apply to appellant, who was over
18 at the time of the offenses. He argues that the rationale
should still apply because he was “indistinguishable from a
‘juvenile’” with respect to brain development. This argument has
repeatedly been made and rejected. While “[d]rawing the line at
18 years of age is subject . . . to the objections always raised
against categorical rules . . . [, it] is the point where society draws
the line for many purposes between childhood and adulthood.”
(Roper, supra, 543 U.S. at p. 554.) Moreover, the age of 18 “is the
line the high court has drawn in its Eighth Amendment
jurisprudence.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1380;
see also People v. Argeta (2012) 210 Cal.App.4th 1478, 1482
[“Making an exception for a defendant who committed a crime
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just five months past his 18th birthday opens the door for the
next defendant who is only six months into adulthood. Such
arguments would have no logical end, and so a line must be
drawn at some point.”].)
Appellant acknowledges this “bright line” but argues that
we should ignore it and apply the same consideration as in
Graham and its progeny to his case. We cannot. (People v.
Johnson, supra, 53 Cal.4th at pp. 527-528.) Because appellant
was over 18 years of age at the time of the offenses, we conclude
that his sentence is not cruel and/or unusual under Graham,
Roper, Miller, or Caballero.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
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