People v. Quintero CA2/4 ( 2023 )

Filed 12/4/23 P. v. Quintero CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B321844
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. GA106202)
v.
EDGAR ANDRES QUINTERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teri Schwartz, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.
Following a jury trial, defendant and appellant Edward
Andres Quintero was convicted of seven sex offenses for the
continuous sexual abuse of his child relative, S.B., over the course
of several years. (Pen. Code, §§ 288.5, subd. (a), 288.7, subds. (a),
(b).)1 The jury also found true the allegation defendant
personally inflicted great bodily injury on S.B. during the
commission of continuous sexual abuse (§ 288.5, subd. (a),
count 4) by infecting the child with genital herpes. (§§ 667.61,
subds. (j)(1), (d), 12022.7, subd. (a).)
Defendant does not challenge the sufficiency of evidence
supporting any of his underlying convictions. Instead, he
challenges the sufficiency of evidence supporting the great bodily
injury finding and argues the trial court erred by admitting
testimony from S.B.’s treating physician concerning a laboratory
report confirming the presence of genital herpes. Finally,
defendant contends the trial court violated his Sixth Amendment
right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi), by making findings of fact when imposing full,
separate, and consecutive terms of imprisonment on two counts
of sexual intercourse or sodomy with a child (counts 1 and 2).
We conclude admission of testimony on the laboratory
report constituted harmless error. We reject defendant’s
remaining arguments and affirm the judgment.
1 Subsequent references to statutes are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. Years’ Long Sexual Abuse of S.B.
The victim’s mother, P.B., testified she was formerly
related to defendant through marriage. Following her divorce
from defendant’s uncle, P.B. maintained contact with defendant.
P.B.’s youngest daughter, S.B., was born in November 2010. In
2016, defendant drove to P.B.’s home once a month to pick up the
child and her older sisters, B.H. and T.H., and he took them to
his home to play with his sons. In the several years that
followed, defendant picked up P.B.’s daughters more frequently,
about once a week, and on occasion would have S.B. spend the
night at his home.
S.B. testified that beginning in 2016 when she was five or
six years old, she had more than 20 “uncomfortable” encounters
with defendant inside his bedroom. Most of the encounters took
place between 2016 and 2019.
S.B. testified the encounters followed a similar pattern.
While alone, S.B. would lay on defendant’s bed while defendant
touched S.B.’s “private part” with his hands,2 pulled down her
pants, and had oral contact with her genitals. Defendant would
then take off his pants and underwear, pull out his “private part,”
and place it in S.B.’s anus. During each encounter, defendant
sodomized S.B. several times, and at times, defendant would
place S.B.’s hands on his penis. Defendant’s “private part” would
sometimes slip out of S.B.’s anus and would touch her vagina.
2 S.B. testified her “private part” referred to her vagina. At the
time of trial, S.B. was 11 years old and learned the word “vagina” from
the prosecutor.
3
S.B. would take a shower after the encounters “because there
would be white stuff between [her] thighs.”
In one encounter when S.B. was seven years old, the child
said a “bad word” to her sister inside defendant’s home.
Defendant grabbed S.B. and took her to his bedroom, where he
removed his and S.B.’s pants and underwear. Then, defendant
orally copulated the child’s genitals and inserted his penis inside
her anus.
The last encounter S.B. could recall took place on or about
June 26, 2019. As before, S.B. found herself locked inside
defendant’s bedroom. Defendant removed his pants and
underwear, orally copulated S.B.’s genitals, inserted his penis in
S.B.’s anus, and rubbed his penis against S.B.’s vagina in a
“motion up and down.” The encounter ended when P.B. arrived
to pick up the child.
2. Treatment for Genital Herpes
On July 3, 2019, S.B. complained to her mother of having
painful bumps on her genitals and experiencing pain whenever
she urinated or defecated. Asked when she first noticed her anus
was bleeding, S.B. responded, “Maybe months” before her initial
complaint in July 2019. P.B. examined the child on July 3, 2019,
and after seeing “a lot of eruptions” on S.B.’s genitals, P.B. took
the child to her pediatric doctor, Dr. Pauline Jose.
Dr. Jose has practiced family medicine for approximately
17 years. Dr. Jose testified she saw S.B. on July 3, 2019, for
complaints of burning and itching in her genital region. During
an examination, Dr. Jose saw white discharge and over
11 blisters on S.B.’s genitals and anus. “Right away,” Dr. Jose
suspected the blisters and vesicular rash were caused by a herpes
4
or other sexually transmitted infection. To “confirm [her]
suspicion,” Dr. Jose took a urine sample and swab of the ruptured
blisters and sent the culture to a laboratory. As the child denied
having inappropriate sexual contact with another person, Dr.
Jose informed P.B. of her findings and suggested P.B. speak with
her daughter.
S.B. returned to Dr. Jose’s medical office on July 10, 2019,
and informed Dr. Jose she had been inappropriately touched. Dr.
Jose’s medical office prescribed S.B. an anti-viral medication used
to treat herpes.
3. Police Investigation
On July 4, 2019, S.B. told her mother about the sexual
abuse. The same day, P.B. took the child to a police station.
Several officers escorted P.B. and S.B. to a nearby hospital for
interviews and an evaluation.
Detective Marissa Farias and her colleague arrested
defendant on July 24, 2019. In a recorded interview played for
the jury, defendant told the detectives he contracted genital
herpes 14 years earlier, around 2015. Defendant initially denied
touching S.B. but later admitted he touched the child
inappropriately one time around May 2019. In that incident,
defendant pulled away S.B.’s underwear and rubbed his penis in
between the child’s vagina for about five minutes. Defendant
also admitted to placing S.B.’s hand on his penis.
B. Defense Evidence
Deputy Sheriff Luis Jimenez testified that on July 4, 2019,
he interviewed S.B. at a local police station. During the
interview, S.B. told officers defendant had been “doing bad things
5
to her since she was seven years old.” According to S.B.,
defendant last touched the child on June 26, 2019.
Testifying in his defense, defendant denied placing his
mouth and penis on or inside S.B.’s vagina or anus on June 26,
2019.
C. Information, Verdict, and Sentencing
By amended information, defendant was charged with four
counts of sexual intercourse or sodomy with a child 10 years old
or younger (§ 288.7, subd. (a), counts 1–2, 5–6), two counts of oral
copulation with a child 10 years old or younger (§ 288.7, subd. (b),
counts 3, 7), and one count of continuous sexual abuse of a child
(§ 288.5, subd. (a), count 4). On the continuous sexual abuse
count, the information further alleged defendant personally
inflicted great bodily injury on S.B. within the meaning of
section 12022.7, subdivision (a), and section 667.61,
subdivisions (j)(1) and (d).
The information alleged a date range on each count. On
counts 1 through 3, the information alleged defendant committed
each offense on or between November 16, 2016, and
November 16, 2017. On count 4, the information alleged
defendant committed continuous sexual abuse on or between
November 17, 2017, and June 25, 2019. On counts 5 through 7,
the information alleged defendant committed each offense on or
about June 26, 2019.
Trial commenced in June 2022. By general verdict, the
jury convicted defendant on all counts and found true the
allegations on count 4 that defendant, “in the commission and
attempted commission of [continuous sexual abuse of S.B.],
personally inflicted great bodily injury upon [S.B.], . . . within the
6
meaning of Penal Code sections 12022.7(a) and 667.61(j)(1) and
(d).”
In July 2022, defendant was sentenced to life imprisonment
without the possibility of parole for continuous sexual abuse
(count 4), plus a full, separate, and overall consecutive term of
75 years to life for sexual intercourse or sodomy with a child
(counts 1, 2, and 5).3
DISCUSSION
Defendant raises several contentions challenging the great
bodily injury enhancement finding on count 4. We address those
contentions first before addressing his remaining claim
challenging the imposition of full, separate, and consecutive
indeterminate terms for sexual intercourse or sodomy with a
child on counts 1 and 2.
A. The Great Bodily Injury Allegation
Section 667.61, subdivisions (j)(1), (c), and (d)(6), together
mandate a sentence of life imprisonment without the possibility
for parole for any person who commits an enumerated offense,
including continuous sexual abuse of a child (§ 288.5), by
personally inflicting “great bodily injury” on the victim in the
commission of the offense in violation of section 12022.7.
Section 12022.7, subdivision (f) defines “great bodily injury” as “a
significant or substantial physical injury.” After receiving an
instruction on these principles (see CALCRIM No. 3160), the jury
found the allegation on count 4 to be true.
3 The court imposed concurrent terms of 25 and 15 years to life on
counts 3, 6, and 7.
7
Defendant challenges the true finding on the enhancement
allegation, arguing (1) admission of Dr. Jose’s testimony about
the contents of the laboratory report confirming S.B. contracted
genital herpes constituted inadmissible hearsay in violation of
the confrontation clause; and (2) insufficient evidence supports
the finding defendant personally inflicted S.B. with herpes
during the period of continuous sexual abuse in count 4.
1. Relevant Background
Prior to opening statements, defense counsel objected to Dr.
Jose’s anticipated testimony about a formal diagnosis of genital
herpes, arguing the testimony would be based on “test results
that led to the diagnosis” in violation of People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez). The court overruled the objection but
agreed to admonish the jury the laboratory results would not be
offered for their truth.
At a sidebar conference during Dr. Jose’s testimony,
defense counsel objected to a question regarding Dr. Jose’s
diagnosis of S.B., because “[Dr. Jose] cannot render an opinion
that [S.B.] has herpes or a diagnosis of herpes without test
results.” The court replied Dr. Jose could rely on laboratory test
results “as long as it is something that is a reliable source of
information that doctors rely on in forming their opinions. [¶]
And, again, the jury will be admonished that what she relied on
is not being offered for the truth.”
Following sidebar, the prosecutor asked Dr. Jose to opine
on S.B.’s diagnosis as of July 3, 2019, when the child first came to
her medical office. In reply, Dr. Jose testified her “suspicion was
high” the vesicular rash on S.B.’s genitals had been caused by
herpes, as it was “the most common cause” of those symptoms.
8
Dr. Jose took a swabbed culture and sent it to a laboratory to
confirm her suspicions. In a brief period of silence between
questions, Dr. Jose interjected, “And may I just add, yes, aside
from the cultures coming back positive for herpes -- . . . .”
Defense counsel objected to Dr. Jose’s statement. The court
sustained the hearsay objection and struck Dr. Jose’s statement.
Dr. Jose was then asked to render an opinion on S.B.’s
diagnosis as of July 10, 2019, during the child’s second visit. Dr.
Jose stated S.B. had contracted herpes based in part on the
laboratory test coming “back positive for herpes.” Defense
counsel objected to the statement as hearsay, and the court
admonished the jury as follows: “I am going to remind you that
this information is not being admitted for the truth of what the
lab result was. You can consider it as something that either
supports or explains the doctor’s opinion.”4 Dr. Jose then
testified her opinion had also been based on an emergency room
report written during an examination at the direction of police, as
well as Dr. Jose’s personal observations of S.B.’s genitals on
July 3, 2019. In pictures taken of S.B.’s vagina and anus shown
at trial, Dr. Jose identified blisters or lesions that were
“characteristic of herpes simplex infection.” Dr. Jose stated
genital herpes is an incurable disease.
On cross-examination, Dr. Jose acknowledged she could not
make a “confirmatory diagnosis” of S.B. on July 3, 2019, without
laboratory results of the swabbed culture. Dr. Jose did not work
4 Among the various instructions provided, the jury was
instructed to disregard any “testimony stricken from the record” and
that “certain evidence was admitted for a limited purpose. You may
consider that evidence only for that purpose and for no other. [¶] This
includes: [¶] The lab report referenced by Dr. Jose.”
9
at the laboratory where she sent the swabbed culture. Dr. Jose
was aware of false positive test results.
Following Dr. Jose’s testimony, the prosecution called
Toyetta Buekes, a nurse practitioner and director of a sexual
response team center, to testify. Based on her extensive practice
diagnosing and treating patients for herpes, Buekes was able to
recognize herpes lesions and ulcers on sight. Buekes testified
genital herpes is spread either by oral contact to the genitals or
genital contact from a person infected with the virus. In
photographs taken of S.B.’s genitalia, Buekes identified genital
herpes and lesions.
Throughout the remainder of trial, defense counsel made a
motion for mistrial based on Dr. Jose relaying case-specific
hearsay in the laboratory report. The court deferred ruling on
the motion, as the prosecutor intended to lay a foundation for
admitting the laboratory report as a business record. After
learning the prosecutor no longer intended to admit the
laboratory report, the court addressed the pending motion for
mistrial. Despite finding Dr. Jose relayed case-specific hearsay
by testifying the laboratory results were “positive,” the court
denied the mistrial motion, finding the results would not be used
to prove the enhancement allegation but as “circumstantial
evidence of what happened.” In addition, the court noted other
admissible evidence informing Dr. Jose’s preliminary opinion on
July 3, 2019, and defendant’s admission to having sexual contact
with S.B. while infected with herpes.
Following the prosecutor’s case-in-chief, defense counsel
moved under section 1118.1 to dismiss the great bodily injury
enhancement for lack of a conclusive diagnosis. The court denied
10
the motion, finding Dr. Jose’s personal observations sufficient to
charge the enhancement to the jury.
During closing argument, the prosecutor argued the great
bodily injury allegation “means the herpes. Any significant and
substantial injury.” Based on Dr. Jose’s personal observations
and medical records showing a formal diagnosis of “herpes viral
infection” on July 10, 2019, the prosecutor argued the
enhancement allegation on count 4 should be found true beyond a
reasonable doubt. In her closing argument, defense counsel
argued there was “no medical or testimonial proof that [S.B.] was
diagnosed with herpes.” Counsel further argued that because the
enhancement allegation “attached [only] to count 4 where there is
a period of time of November 17, 2017 and June 25, [2019,] they
have to prove to you beyond a reasonable doubt [S.B.] contracted
herpes during that time period and no other date.” Absent any
such proof, defense counsel requested the jury find the allegation
not true. In rebuttal argument, the prosecutor argued S.B. would
never have gone to the doctor “[h]ad it not been for the pain and
bleeding [the herpes] caused” S.B. Noting the number of times
S.B. was sexually abused and the week difference between the
last date of abuse (June 26) and when Dr. Jose first saw S.B.
(July 3), the prosecutor argued it was reasonable to infer “the
herpes was contracted” during the period of continuous sexual
abuse.
2. Dr. Jose’s Testimony Did Not Infringe on Defendant’s
Constitutional Right of Confrontation
Defendant contends Dr. Jose’s testimony concerning an
“unsubstantiated lab analysis of a culture” taken of S.B.’s
genitals violated his right to confront the witnesses against him
11
under the Sixth Amendment to the United States Constitution
and Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We
disagree.
a. Governing Principles
In Crawford, the high court recognized the Sixth
Amendment guarantees a criminal defendant “‘the right . . . to be
confronted with the witnesses against him.’” (Crawford, supra,541 U.S. at pp. 40, 42, 68–69.) Consequently, an out-of-court
statement that is “testimonial” cannot be admitted into evidence
over the defendant’s objection unless the person who made the
statement is unavailable to testify and the defendant had a prior
opportunity for cross-examination. (Ibid.) In reaching this
conclusion, the high court provided no definition of the term
“testimonial.” (Id. at p. 68.)
Through various decisions, the high court provided
examples of “testimonial” statements invoking the protections of
Crawford. In Davis v. Washington (2006) 547 U.S. 813, the court
found statements made in the course of police interrogation
“under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet
an ongoing emergency” were not testimonial. (Id. at p. 822.) The
high court reasoned the statements would be testimonial “when
the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.”5 (Id. at p. 822.)
5 Concurring and dissenting in part, Justice Thomas stated the
“plain terms of the ‘testimony’ definition [in Crawford] necessarily
require some degree of solemnity before a statement can be deemed
12
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305(Melendez-Diaz), the high court found affidavits reporting the
results of forensic analysis on a substance suspected of being
cocaine were “testimonial” because they were “functionally
identical to live, in-court testimony . . . .” (Id. at pp. 310–311
[affidavits denominated as “certificates” and made under
declaration or affirmation].) Then, in Bullcoming v. New Mexico
(2011) 564 U.S. 647 (Bullcoming), the high court found a
similarly certified forensic laboratory report prepared by a state
laboratory required by law to assist in police investigations on
blood alcohol content constituted testimonial statements. (Id. at
pp. 652, 665.)
In Williams v. Illinois (2012) 567 U.S. 50 (Williams),
however, a plurality of the high court found testimony by “an
expert who testified that a DNA profile produced by an outside
laboratory, . . . matched a profile produced by the state police lab
using a sample of [the defendant’s] blood” did not constitute
testimonial hearsay. (Id. at p. 56.) The plurality reached this
conclusion on two grounds. First, the court found the testimony
was not admitted to establish the truth of the matter asserted in
the report, but only to explain the basis of the expert’s
independent conclusion. (Id. at pp. 57–58.) Second, the “the
primary purpose of the [laboratory] report, viewed objectively,
was not to accuse [the defendant] or to create evidence for use at
trial. When the [ ] lab sent the sample [for testing], its primary
‘testimonial.’” (Davis, supra, 547 U.S. at p. 836, conc. opn. of Thomas,
J.) “This requirement of solemnity supports my view that the
statements regulated by the Confrontation Clause must include
‘extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions.’ [Citation.]” (Ibid.)
13
purpose was to catch a dangerous rapist who was still at large,
not to obtain evidence for use against [the defendant], who was
neither in custody nor under suspicion at that time.” (Id. at
pp. 84–85.)
Following Crawford, Melendez-Diaz, Bullcoming, and
Williams, our state Supreme Court reexamined the meaning of
“testimonial” in its own collection of cases. (See People v.
Rutterschmidt (2012) 55 Cal.4th 650; People v. Lopez (2012) 55
Cal.4th 569; People v. Dungo (2012) 55 Cal.4th 608 (Dungo).) Of
this trio, Dungo is the most pertinent here. In Dungo, a forensic
pathologist testified about his own opinion on the cause of the
victim’s death after “reviewing an autopsy report (with
accompanying photographs) prepared by [another pathologist]
who did not testify and thus could not be confronted by [the]
defendant.” (Dungo, supra, at pp. 613–616, 618.) “Neither the
autopsy photographs nor [the] autopsy report was admitted into
evidence.” (Id. at p. 615.)
Before analyzing the forensic pathologist’s testimony under
Crawford, the Dungo Court noted two “significant points”
limiting its inquiry. (Dungo, supra, 55 Cal.4th at p. 619.) First,
the “autopsy report was not introduced into evidence. Thus, we
need not decide whether that entire report is testimonial in
nature. Second, [the expert’s] testimony never described the
conclusions in [the] autopsy report as to the cause of [the victim’s]
death.[6] Thus, we need not determine whether such testimony, if
6 The expert who testified, Dr. Lawrence, “did not describe to the
jury [the reporting pathologist’s] cause of . . . death; instead, he only
gave his own independent opinion as a forensic pathologist. Dr.
Lawrence did not say whether his description of [the] body at the time
of the autopsy . . . was based solely on the autopsy photographs, solely
14
it had been given, would have violated [the] defendant’s right to
confront [the reporting pathologist].” (Id. at pp. 618–619.)
Our Supreme Court then stated, “Although the high court
has not agreed on a definition of ‘testimonial,’ testimonial out-of-
court statements have two critical components. First, to be
testimonial the statement must be made with some degree of
formality or solemnity. Second, the statement is testimonial only
if its primary purpose pertains in some fashion to a criminal
prosecution.” (Dungo, supra, 55 Cal.4th at p. 619.)
Addressing both components, the Supreme Court found the
autopsy report from which the expert witness testified was not
testimonial. First noting the lack of formality and solemnity, the
Court reasoned the report simply recorded “objective facts, . . . .
They are comparable to observations of objective fact in a report
by a physician who, after examining a patient, diagnoses a
particular injury or ailment and determines the appropriate
treatment. Such observations are not testimonial in nature.”
(Dungo, supra, 55 Cal.4th at pp. 619–620, citing Melendez-Diaz,
supra, 557 U.S. at p. 312, fn. 2.) Next, the Court found the
report’s primary purpose was not grounded in criminal
prosecution, as the coroner’s duty to investigate a suspicious
death “is the same, regardless of whether the death resulted from
criminal activity,” and the report served equally important
purposes beyond prosecution. (Dungo, supra, at p. 620.)
The Supreme Court reaffirmed these principles in People v.
Sanchez (2016) 63 Cal.4th 665. There, the Court stated,
“Testimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which could
on [the] autopsy report, or on a combination of them.” (Dungo, supra,55 Cal.4th at pp. 614–615.)
15
be used like trial testimony. Nontestimonial statements are
those whose primary purpose is to deal with an ongoing
emergency or some other purpose unrelated to preserving facts
for later use at trial.” (Id. at p. 689; see id. at pp. 694–696 [police
reports and STEP notices compiled during police investigation,
authored by investigating officers, and recorded for later use at
trial were testimonial in nature].)
In view of these authorities, cases that have recently
addressed the nature of a statement relayed at trial considers
“who made the statements, under what circumstances, and for
what purpose.” (People v. Valencia (2021) 11 Cal.5th 818, 833,
fn. 14 (Valencia); People v. Tran (2022) 13 Cal.5th 1169, 1197.)
With these principles in mind, we independently review whether
Dr. Jose’s statements about the laboratory report at trial were
“testimonial” in violation of defendant’s Sixth Amendment right
and Crawford. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th
809, 825.)
b. Analysis
Defendant contends Dr. Jose’s testimony that the
laboratory report on the cultured swab “came back positive for
herpes” constituted testimonial hearsay. We disagree.
As in Dungo, we note “two significant points” in our
analysis. (Dungo, supra, 55 Cal.4th at p. 618.) First, no portion
of the laboratory report was introduced into evidence. Second, it
is unclear if Dr. Jose’s testimony relayed a particular statement
from the report or simply testified about her own conclusion
based on statements or data appearing in the report. At most,
the testimony reported an objective fact on the detection of the
herpes virus. We must therefore determine whether the
16
testimony about this objective fact implicated defendant’s right to
confront and cross-examine whoever performed the laboratory
test. We conclude that it did not.
To begin with, defendant has furnished this court no
argument on the formality or solemnity of the laboratory report.
From what we can discern in the appellate record, Dr. Jose’s
medical office received the laboratory report in the normal course
of business. Absent an accompanying declaration (Bullcoming,
supra, 564 U.S. at pp. 663–665) or certified statement (Melendez-
Diaz, supra, 557 U.S. at pp. 310–311) by the laboratory
technician(s) who performed the test, we find the laboratory
report and Dr. Jose’s testimony lacking in formality and
solemnity.
As to the second component, defendant does not seriously
dispute the primary purpose of the laboratory test was for
treatment purposes and not criminal prosecution. (See Melendez-
Diaz, supra, 557 U.S. at p. 312, fn. 12 [“medical reports created
for treatment purposes . . . would not be testimonial under our
decision today”]; accord, Dungo, supra, 55 Cal.4th at p. 626
[statements made independently to record observations “made as
a regular part of the witness’s business or profession, even if
those observations turn out to be helpful to the prosecution in a
particular case,” are not testimonial].) When Dr. Jose submitted
the culture for testing, S.B. had yet to reveal any sexual abuse by
defendant. Defendant may be correct to note the specter of
criminal behavior existed at the time Dr. Jose submitted the
culture for testing. But that does not mean the primary purpose
for the test was for anything but medical treatment. Thus, we
conclude any statements relayed by Dr. Jose were not
17
“testimonial” and did not implicate defendant’s Sixth Amendment
right of confrontation and cross-examination.
3. Admission of Dr. Jose’s Testimony Was Harmless
Beyond discussing the requirements attending testimonial
hearsay discussed ante, the Court in Sanchez also clarified the
law on case-specific hearsay. Before Sanchez, expert witnesses
could relate case-specific hearsay, defined as any facts “relating
to the [particular] events and participants alleged to have been
involved in the case being tried” (Sanchez, supra, 63 Cal.4th at
p. 676), if the jury was informed it could only consider the
information for its effect on the expert’s opinion and not for its
truth. (People v. Yates (2018) 25 Cal.App.5th 474, 482 (Yates).)
Sanchez abandoned this “not-admitted-for-its-truth rationale” for
case-specific hearsay and held that an expert may no longer
“relate as true case-specific facts asserted in hearsay statements,
unless they are independently proven by competent evidence or
are covered by a hearsay exception.” (Sanchez, supra, at p. 686;
accord, Valencia, supra, 11 Cal.5th at p. 835.)
Here, the parties agree Dr. Jose relayed case-specific
hearsay by testifying about the laboratory results. They
disagree, however, on the appropriate standard of prejudice.
Defendant asserts the error is subject to Chapman v. California
(1967) 386 U.S. 18, 24, for violating his Sixth Amendment right
under the confrontation clause. The Attorney General contends,
and in view of our conclusion ante, we agree, the error is subject
to state law statutory error under People v. Watson (1956) 46
Cal.2d 818 (Watson). (See Valencia, supra, 11 Cal.5th at p. 840.)
To establish prejudicial state law error, the defendant must
show under the entire record “it is reasonably probable that a
18
result more favorable to the [defendant] would have been reached
in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
Defendant has failed to establish prejudice under this standard.
Defendant provides no argument contesting the factual
bases on which he was convicted on each count of sexual abuse,
and as a result, he has shown no probability of acquittal. While
defendant does challenge the great bodily injury finding on
count 4, he offers no persuasive reason to ignore the array of
other, undisputed evidence supporting that finding. That
evidence established defendant’s sexual abuse of S.B. over the
course of several years while he was infected with herpes.
Shortly after the period of continuous sexual abuse, S.B.
presented with symptoms most associated with genital herpes.
Two witnesses with experience diagnosing and treating patients
with genital herpes opined S.B. contracted herpes on or before
July 2019 without factoring in the positive laboratory results.
(See People v. Bledsoe (1984) 36 Cal.3d 236, 249 [“a long line of
California decisions . . . permit an expert medical witness to give
an opinion of the cause of a particular injury on the basis of the
expert’s deduction from the appearance of the injury itself”].)
Such compelling evidence foreclosed any need for the jury to rely
on the laboratory test confirming S.B.’s diagnosis. The erroneous
admission of Dr. Jose’s testimony about the laboratory report was
harmless.
4. Sufficiency of Evidence of Great Bodily Injury
Next, defendant challenges the sufficiency of evidence
supporting the jury’s true finding on the great bodily injury
enhancement allegation under sections 667.61, subdivisions (j)(1),
(d), and 12022.7.
19
“In reviewing a sufficiency of evidence claim, the reviewing
court’s role is a limited one. “‘The proper test for determining a
claim of insufficiency of evidence in a criminal case is whether, on
the entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] On appeal, we
must view the evidence in the light most favorable to the People
and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.
[Citation.]’” [Citations.]” (People v. Smith (2005) 37 Cal.4th 733,
738–739.) We do not resolve credibility issues or conflicts in the
evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), and if the
circumstances reasonably justify the trier of fact’s findings,
“reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a
contrary finding” (People v. Covarrubias (2016) 1 Cal.5th 838,
890).
We conclude substantial evidence supports the finding
defendant personally inflicted great bodily injury on S.B. in the
commission of continuous sexual abuse in count 4. As the parties
agree, infecting a victim with genital herpes or other venereal
disease during the commission of a sex offense qualifies as great
bodily injury. (People v. Adames (1997) 54 Cal.App.4th 198, 210;
see People v. Johnson (1986) 181 Cal.App.3d 1137, 1140–1141
(Johnson) [symptoms of genital herpes includes vesicles and
blisters, itching, pain, and long-term complications]; see also
People v. Superior Court (Duval) (1988) 198 Cal.App.3d 1121,
1131 [“[p]regnancy, abortion, or venereal disease constitute
injury significantly and substantially beyond that necessarily
present in the commission of an act of unlawful sexual
intercourse”].)
20
Defendant raises two arguments challenging the sufficiency
of evidence supporting the infliction of great bodily injury
through a herpes infection, neither of which we find persuasive.
a. Defendant Misconstrues the Requisite Findings
for the Great Bodily Injury Enhancement
First, defendant contends the transmittal of herpes through
sexual contact is insufficient to impose a sentence of life without
the possibility of parole. In support, he argues under
section 667.61, subdivision (k), the prosecution was required to
prove he transmitted herpes by use “‘of force that is more than
the force necessary to commit the offense.’” Defendant
misconstrues the jury’s findings under the relevant statutes.
The information alleged a sentencing enhancement under
section 667.61, subdivision (d), and the jury received an
instruction on the allegation pursuant to subdivision (d)(6).
(CALCRIM No. 3160.) Section 667.61, subdivisions (j)(1), (c), and
(d)(6), together mandate a sentence of life imprisonment without
the possibility for parole for any person who, in the commission of
an enumerated offense, personally inflicts “great bodily injury” on
the victim in violation of section 12022.7. One enumerated
offense is the continuous sexual abuse of a child (§ 288.5). (See
§ 667.61, subd. (c)(9).).
Section 12022.7, subdivision (f) defines “great bodily injury”
as “a significant or substantial physical injury.” (Emphasis
added.) As such, the “great bodily injury” allegations under
sections 667.61, subdivisions (j)(1), (d)(6), and 12022.7, focus on
the result of a defendant’s act, not the nature of the act itself.
(See People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar); People
v. Wyatt (2012) 55 Cal.4th 694, 702 (Wyatt).) Our Supreme Court
21
has found the use of additional force is not required to support a
finding of great bodily injury under section 12022.7 (and as
expressly incorporated into section 667.61, subdivisions (j)(1) and
(d)(6)). (People v. Cross (2008) 45 Cal.4th 58, 65–66, fn. omitted
[rejecting argument “that a pregnancy without medical
complications that results from unlawful but nonforcible
intercourse . . . can never support a finding of great bodily
injury”]; accord, Johnson, supra, 181 Cal.App.3d at p. 1140
[rejecting same argument for the transmission of herpes during
sexual intercourse].)
Defendant argues that a different section, section 667.61,
subdivision (k)—which was neither alleged nor instructed upon—
requires a showing of additional force to justify imprisonment for
life without the possibility of parole. Subdivision (k) of
section 667.61 defines the term “bodily harm” as follows: “As
used in this section, ‘bodily harm’ means any substantial physical
injury resulting from the use of force that is more than the force
necessary to commit an offense specified in subdivision (c).” It is
undisputed the term “bodily harm” does not appear in 667.61,
subdivision (d)(6), the specific subdivision under which the jury
found true the great bodily injury enhancement allegation used
to sentence defendant to life without possibility of parole.
Other provisions under section 667.61 in which a life
sentence may be imposed require the finding of “bodily harm.”
For example, subdivision (d)(7) requires a finding “[t]he
defendant personally inflicted bodily harm on the victim who was
under 14 years of age.” (§ 667.61, subd. (d)(7).) Although
subdivision (d)(7) might sound applicable in this case, it was
never charged to the jury as a basis for the enhancement
allegation. The information did not allege a subdivision (d)(7)
22
enhancement allegation, the jury received no instruction under
subdivision (d)(7), and the relevant jury instruction and verdict
did not contain the term “bodily harm.” Instead, the jury
received an instruction under subdivision (d)(6), which required
finding defendant “personally inflicted great bodily injury on the
victim . . . in the commission of the present offense in violation of”
section 12022.7. (Compare § 667.61, subd. (d)(6), and CALCRIM
No. 3160 [entitled “Great Bodily Injury (Pen. Code, §§ 667.5(c)(8),
667.61(d)(6), 1192.7(c)(8), 12022.7, 12022.8”].)
Defendant admits there is no case law incorporating the
definition of “bodily harm” used in subdivisions (k) or (d)(7) into
the “great bodily injury” allegation in subdivision (d)(6). Absent
any authority supporting this interpretation, we adhere to the
definitions provided in the relevant statutes defining “great
bodily injury” as a “significant or substantial injury.” (§§ 667.61,
subds. (j)(1), (d)(6), 12022.7, subd. (f); see In re C.H. (2011) 53
Cal.4th 94, 107; [“[w]henever the Legislature uses different words
or phrasing in contemporaneously enacted statutory provisions, a
strong inference arises that a different meaning was intended”];
accord, Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1117.) The distinction in definition is significant,
as the “great bodily injury” allegations under sections 667.61,
subdivisions (j)(1), (d)(6), and 12022.7, focus on the result of a
defendant’s act, not the nature of the act itself. (See Escobar,
supra, 3 Cal.4th at p. 750; Wyatt, supra, 55 Cal.4th at p. 702.)
23
b. Substantial Evidence Supports the Finding
Defendant Infected S.B. with Herpes During the
Commission of Continuous Sexual Abuse
Defendant also contends there was no evidence S.B.
contracted herpes within the period of continuous sexual abuse
alleged in count 4 (November 17, 2017, and June 25, 2019). The
Attorney General contends defendant forfeited this argument by
failing to adequately present his argument with supporting legal
authority. We agree. (See People v. Stanley (1995) 10 Cal.4th
764, 793 [forfeiture principle “is especially true when an
appellant makes a general assertion, unsupported by specific
argument, regarding insufficiency of evidence”].)
In addition, the Attorney General contends under the
materiality of variance doctrine we must disregard any
immaterial variance between the pleading and proof of the
enhancement allegation. (Citing e.g., People v. La Marr (1942) 20
Cal.2d 705, 711 [variance is immaterial when the information “so
fully and correctly informs the defendant of the criminal act with
which he is charged that, . . . he is not misled in making his
defense”].) The Attorney General argues defendant failed to
identify any objection to variance between the information and
evidence at trial; thus, any objection to such variance has been
forfeited. Indeed, it appears the jury received an instruction on
this doctrine on various counts—including count 4—to which no
objection was raised. (CALCRIM No. 207; see § 955.)7 Having
7 CALCRIM No. 207 provided: “As to Count[ ] Four, it is alleged
that the crimes occurred between November 16, 2016, and June 25,
2019. The People are not required to prove that the crimes took place
exactly on those days but only that they happened reasonably close to
those days.”
24
failed to address the Attorney General’s argument or the cited
case law in his reply brief, defendant offers no reason for this
court to consider if a material variance between the information
and evidence precludes the challenged enhancement.
Were the argument not forfeited, we conclude substantial
evidence supports the finding defendant personally transmitted
S.B. herpes within the period of continuous sexual abuse in count
4. The term “‘in the commission of’” an offense for purposes of an
enhancement allegation is to be “‘broadly construed’” (People v.
Masbruch (1996) 13 Cal.4th 1001, 1007 (Masbruch)) and should
not be limited by “‘“a matter of semantics or simple chronology”’”
(People v. Jones (2001) 25 Cal.4th 98, 109). (See e.g., People v.
Frausto (2009) 180 Cal.App.4th 890, 902 [“[t]emporal niceties are
not determinative”].)
When considering the enhancement allegation in this case,
“the jury [could rightly] consider a ‘video’ of the entire encounter;
it is not limited to a ‘snapshot’ of the moments immediately
preceding a sex offense.” (Masbruch, supra, 13 Cal.4th at
p. 1011.) Here, defendant began sexually abusing S.B. in 2016
long after he had contracted genital herpes. Continuing his
sexual abuse of S.B. for three years, defendant engaged in over 20
separate instances of raping, sodomizing, and/or orally copulating
S.B. without a condom or other prophylactic measure. Defendant
admitted he had genital-to-genital contact with S.B. in May 2019.
Despite S.B. reporting herpes lesions and blisters to her mother
after the period of continuous sexual abuse, the difference in time
was minimal (one week), and S.B. had previously exhibited other
symptoms consistent with a herpes infection within the period of
continual abuse. In this regard, S.B. testified her anus would
bleed whenever she tried to defecate “[m]aybe months” before she
25
first complained to her mother in July 2019. On these facts, the
jury reasonably could find S.B. contracted a herpes infection
within the period of continuous sexual abuse alleged in count 4.
B. Sixth Amendment Challenge to Consecutive
Sentences on Counts 1 and 2
Defendant contends the trial court violated his Sixth
Amendment right to a jury trial and Apprendi v. New Jersey
(2000) 530 U.S. 466 by imposing full, separate, and consecutive
sentences on counts 1 and 2. Defendant argues the court
imposed these consecutive sentences based on its own findings of
fact that each count of sexual intercourse or sodomy with a child
occurred on “separate occasions.”
In counts 1 and 2, defendant was convicted of sexual
intercourse or sodomy with a child (§ 288.7, subd. (a), counts 1–2)
between November 16, 2016, and November 16, 2017. During
sentencing, the court imposed a term of 25 years to life on count 1
and a full, separate, and consecutive term of 25 years to life on
count 2 after finding each offense to be based on separate acts of
sexual intercourse or sodomy. In so finding, the court noted
“there were numerous incidents” and “occasions that the victim
testified to over that . . . period of time.”
Imposing sentence on multiple offenses is generally
governed by section 1170.1, which allows either a concurrent
sentence or consecutive sentence with a principal term and
consecutive subordinate term of one-third the middle term. (See
§ 1170.1.) Under section 667.6, subdivision (d), however, full,
separate, and consecutive sentences for enumerated sex offenses
are mandatory “if the crimes involve separate victims or involve
the same victim on separate occasions.” (§ 667.6, subd. (d)(1).)
26
Continuous sexual abuse of a child (§ 288.5) is an enumerated
offense. (§ 667.6, subd. (e)(6).)
In Apprendi, the United States Supreme Court held the
Sixth Amendment requires a jury finding for any fact, other than
a prior conviction, that increases the statutory maximum penalty
for a crime. (Apprendi, supra, 530 U.S. at p. 476.) Years later,
the high court extended this principle to factual findings that
increase the mandatory minimum sentence for a crime. (Alleyne
v. United States (2013) 570 U.S. 99, 103 (Alleyne).) However, in
Oregon v. Ice (2009) 555 U.S. 160 (Ice), the high court held
Apprendi did not apply to facts deemed necessary for imposing
consecutive rather than concurrent sentences, “a sentencing
function in which the jury traditionally played no part.” (Id. at
p. 163 [noting Apprendi and its progeny extended only to the
“offense-specific context that supplied the historic grounding for
[those] decisions”].)
While this appeal was pending, our state Supreme Court
decided People v. Catarino (2023) 14 Cal.5th 748 (Catarino). In
Catarino, the Court held that “the rule of Apprendi and Alleyne
does not apply to section 667.6(d) under the rationale of Ice.”
Accordingly, the Catarino Court concluded section 667.6(d)’s
requirement the trial court impose full, separate, and consecutive
terms for certain sex crimes when the court finds they were
committed on “separate occasions” complies with the Sixth
Amendment. (Catarino, supra, at pp. 750, 755, 757.)
Following Catarino, we reject defendant’s argument
challenging the imposition of full, separate, and consecutive
sentences on counts 1 and 2. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
27
DISPOSITION
The judgment is affirmed.
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
28