Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD186632, Howard H. Shore, Judge.
NARES, Acting P. J.
In February 2006 a jury found Benjamin Flournoy guilty of forcible rape under Penal Code section 261, subdivision (a)(2) (count 1), and assault with intent to commit rape under section 220 (count 2), committed against the victim, L.M. Thereafter, Flournoy admitted that that he had committed three serious felony priors within the meaning of section 667, subdivision (a)(1) that also qualified as prior strikes under sections 667, subdivisions (b) through (i) and 1170.12.
All further statutory references are to the Penal Code unless otherwise specified.
In May 2006 the court sentenced Flournoy to an indeterminate term of 40 years to life consisting of (1) an indeterminate term of 25 years to life for the forcible rape conviction (count 1), and (2) consecutive five-year terms for each of the three prior serious felonies. The court imposed and stayed a term of 25 years to life for the assault with intent to rape conviction (count 2) under section 654.
On appeal Flournoy asserts his convictions must be reversed because (1) the People's DNA expert's testimony was based upon findings and conclusions made by nontestifying criminalists, which (a) was a violation of hearsay law, and (b) deprived him of his right to confront and cross-examine those witnesses; (2) his trial attorney provided ineffective assistance of counsel by failing to object to the DNA expert's inadmissible hearsay testimony; (3) the court admitted into evidence the hearsay testimony of the victim L.M.'s aunt concerning L.M.'s account of the sexual assault; (4) the court admitted into evidence Flournoy's attempts to contact L.M. following her testimony at the preliminary hearing; (5) the court admitted into evidence the hearsay testimony of L.M.'s supervisor concerning L.M.'s account of the sexual assault and her fear of Flournoy; and (6) the cumulative prejudice of these errors requires a reversal. Flournoy also contends that his conviction on count 2 must be set aside because assault with intent to commit rape is a lesser included offense of forcible rape. We reject these assertions and affirm the judgment.
FACTUAL BACKGROUND
A. People's Case
1. L.M. meets Flournoy
L.M. was raised in Portland. After graduating from high school, she moved to San Diego and began attending Mesa College. She did not have a car and so traveled by bus. This required her to often transfer at Ninth Street and Broadway in downtown San Diego. In late October 2003 she met Flournoy while walking to Ninth Street to catch her bus. He approached and said he had seen her a couple of days before and he was "checking [her] out." They spoke for approximately 15 minutes while L.M. was waiting for her bus.
The following day L.M again encountered Flournoy at the same corner. Flournoy asked L.M. her name, but she responded that she did not have one. As they were talking, L.M. noticed that the batteries in her compact disc player had died. Flournoy went to a nearby store and returned with some batteries, which he gave her. While they continued waiting for L.M.'s bus, Flournoy must have written his telephone number on a piece of paper and put it among her books, as she found the paper there when she was later on the bus.
L.M. thought Flournoy was "cool" and friendly because he had bought the batteries for her. A few days later, she called him. Flournoy returned her call and invited her to stroll around downtown. L.M. was not interested in Flournoy as a boyfriend because he was substantially older than she. She estimated that he was roughly the same age as her father. Nevertheless, she agreed to meet Flournoy because she did not know many people in San Diego.
L.M. met Flournoy at First Street and Broadway. As they walked, Flournoy tried to hold her hand, but at first she would not let him. However, when he reached for her hand a second time, she let him. Later, Flournoy tried to kiss her, but L.M. pushed him away. Flournoy responded, "Quit playing." At the end of the evening, Flournoy tried to kiss her again, but she again pushed him away. L.M. then caught her bus home.
2. The rape
On October 30, 2003, Flournoy called L.M. to invite her over to his apartment to watch a basketball game. L.M. had told him previously that she wanted to watch the game, but her television was broken. L.M. called her best friend in Portland, Charlene Thompson, who advised her not to go. Nevertheless, L.M. decided to go and called Flournoy. They met at First Street and Broadway and then went to his apartment at the J Street Inn. L.M. did not plan on staying too late as the last bus left at either midnight or one a.m. However, she brought a duffle bag with some school books with her.
When they arrived at the J Street Inn, L.M. signed in at the front desk. They then went up to Flournoy's studio apartment, which was furnished with a bed and a small futon. L.M. sat on the futon and watched television while Flournoy left to lock up some buildings. When Flournoy returned, he sat next to her and then laid his head in her lap. L.M. pushed him away and told him to move. He responded, "Quit playing. Just let me lay on your lap." L.M. responded, "Man, whatever," and let him stay where he was.
L.M. and Flournoy discussed her lack of trust in people. Flournoy told her she could trust him. Flournoy then went into the bathroom and changed into his pajamas. He sat back down on the futon and told her that he was going to bed because he had to get up early the next morning. L.M. continued to watch television as Flournoy climbed into bed. L.M. watched television too long and missed her last bus. Because she did not have money for a cab, she decided to wait until she could catch a bus in the morning. L.M. decided to lie down, but the futon was too small. Around 2:00 a.m., she lay down, fully clothed except for her shoes, on top of the covers on Flournoy's bed. When she got cold, she climbed under the covers and fell asleep.
L.M. was awakened by Flournoy, who was on top of her. Her shorts were pulled down around her ankles, and her T-shirt and sweatshirt were pulled up. L.M. was kissing her neck, breasts and vagina. When she woke up and realized what was happening she tried to push him off with her hands and said, "Move." Flournoy responded, "Scoot down," and pulled her legs toward him. L.M., who is 5 feet 3 inches tall, tried to get him off her by pushing him with her hands and legs, but Flournoy got in a position where he was able to insert his penis into her vagina. L.M. felt pain in her vagina when he inserted his penis. Ultimately, she was able to free herself by kicking Flournoy off her.
As she got out of bed and bent down to pick up her clothes, she hit her head on the arm of the futon. Flournoy asked her if she wanted him to walk her downstairs. L.M. replied, "I don't want you to do a fuckin' thing for me." She was crying as she left his apartment.
On her way out of the J Street Inn, L.M. passed a security guard who asked her what was wrong. She was too upset to respond and wanted to get out of the building as soon as possible. At trial the security guard, Alvin Thompson, confirmed that on the night of the rape, a young African-American woman ran crying out of the building. A few minutes later, Flournoy came into the lobby and asked which direction the woman had gone. L.M. ran past Horton Plaza, towards 12th Street. Eventually she was able to catch a bus home.
3. Sexual assault exam
Once L.M. came home she decided to go to the hospital because her ovaries were hurting. Her ovaries had been hurting for several days, and she had put off going to a doctor. Without taking a shower or changing her clothes, she went to Mercy Hospital.
L.M. did not intend to report the rape because she did not want her parents to find out she had gone to Flournoy's apartment. At the hospital, however, because she was crying, a nurse kept asking her what was wrong. She initially told the nurse that she was crying because of the pain, but the nurse did not believe her. Because she thought it would make her less blameworthy, L.M. lied and told the nurse that she had been raped in an alley behind her apartment by someone she did not know. After she told this story to a physician, the hospital called the police. When police arrived, she told them the same false story.
L.M. went to a different hospital to have a sexual assault exam. The police took her clothes and she was given a hospital gown and underwear. The exam was conducted by Shirley Odum, a registered nurse. L.M. allowed Odum to take swabs from her breasts and external genitalia. Odum also took blood and urine samples. However, L.M. would not let Odum use a speculum in the examination.
Odum observed two recent injuries: an abrasion to L.M.'s posterior fourchette and one to the labia minora. The abrasions appeared to be recent and were consistent with blunt-force trauma that occurred between midnight and 2:00 a.m. In Odum's opinion, the abrasions were mounting-type injuries consistent with a penis being forced into a vagina. However, she could not determine if they were from consensual or nonconsensual intercourse.
4. L.M.'s statements to others about rape
L.M. later called her friend Thompson and told her about the rape. She told Thompson that she had gone to Flournoy's apartment to watch a basketball game and had fallen asleep. When she awoke, Flournoy was on top of her and raped her. Throughout the conversation, L.M. was upset, scared and panicky. When Thompson told her she should call the police, L.M. made her promise not to tell anyone, not even her parents. L.M. was afraid of how people would react.
L.M. also called her aunt, Deangeloa Wells, who lived in Portland, and told her in general terms about the rape, but did not identify her attacker. Wells told her parents, and L.M.'s father drove down to San Diego and took her back to Portland. Before she left for Portland, she received a message on her answering machine from Flournoy, who said he was sorry and that it was not supposed to happen. The message was later deleted.
L.M. remained in Portland through the Christmas holidays, giving up her job in San Diego and dropping her classes. While she was at church with her aunt Wells during this period, Wells told her, "Okay. You can fool everybody else. You can't fool me, because I know you . . . . What really happened? Because the story you told just doesn't add up." L.M. then told Wells the truth. L.M told her what happened at Flournoy's apartment. L.M. told her she initially lied because she was too embarrassed about her lack of judgment. Wells told her to call the police and tell them the truth because Flournoy should be punished. While still in Portland, L.M. called San Diego Police Detective Mike Holden and told him the truth.
5. Police investigation
When L.M. returned to San Diego, Detective Holden prepared a six-photo lineup, including a picture of Flournoy in position No. 2, and showed it to L.M. L.M. positively identified Flournoy as her attacker. L.M. then accompanied Detective Holden downtown and pointed out the J Street Inn as the location where the rape took place. Detective Holden contacted the manager and inspected a room similar to the one Flournoy had been staying in October 2003. The room had a layout that was similar to Flournoy's, as described to him by L.M.
In June 2004 Detective Holden left a business card at Flournoy's apartment. Flournoy called Detective Holden and agreed to speak with him at the station. At the station, Detective Holden told Flournoy he was being accused of raping L.M. Detective Holden asked Flournoy if he knew L.M., reminding him that he had met her at a bus stop the previous fall and had walked around downtown with her. He also showed a picture of L.M. to Flournoy. Flournoy denied ever having seen L.M. before. He further denied the possibility that he simply did not remember her and stated that he would have remembered if he had had sex with her. At the conclusion of the interview, Flournoy voluntarily provided a DNA sample.
Criminalist Amy Rogala worked in the forensic biology section of the San Diego Police Department's crime laboratory (the crime lab) and recovered male DNA from the swab taken from L.M.'s breast. The information was run through the state DNA database, which identified Flournoy as a possible match. In order to confirm the results, Criminalist Adam Dutra analyzed the samples Flournoy had provided during his interview with Detective Holden, and the results showed a positive match. Rogala reviewed Dutra's report and concluded that there was a 1-in-41 quintillion chance that an African-American selected at random would have the same DNA. Persons from other racial groups were an even less likely match.
Two sperm cells were recovered from the swab taken from L.M.'s external genital area, which was an insufficient amount from which to create a DNA profile based on short tandem repeat (STR) testing. There was, however, a sufficient sample from which to conduct the less sensitive YSTR testing─testing based upon only the Y chromosome string. The result revealed a positive match with Flournoy's DNA. The likelihood of such a match with a random sampling of African-American males was 1 in 1,100. Two sperm cells were recovered from the panties L.M. was given to wear for the sexual assault examination. They were also an insufficient amount from which to conduct DNA tests.
In an interview with Detective Holden, L.M. described several items she had observed in Flournoy's apartment, including several record albums, a record player, a comforter, and a picture of a small boy. When Detective Holden obtained a search warrant and searched Flournoy's apartment, he discovered the items that L.M. had described.
6. Flournoy attempts to contact L.M.
In March 2005 L.M. had a parttime job at a restaurant on 12th Street and Market. One day in March 2005, after L.M. had identified Flournoy as the perpetrator at the preliminary hearing, she saw Flournoy looking into the restaurant while he was sitting on a bench waiting for the trolley. L.M. was scared and hoped that he did not recognize her. She contacted Detective Holden and reported the incident to him.
The following morning, L.M. and her boss, Cherie Johnson, were preparing to open the restaurant for business. As L.M. stood next to the inside of the restaurant's door, Flournoy walked past. At first he did not appear to see L.M. However, he then recognized her and tried to open the door, which was locked. L.M. was so scared she was shaking. Flournoy kept saying, "I need to talk to you." As L.M. backed away from the door, Johnson asked her what was wrong. L.M. responded, "That's him." L.M. had told Johnson about the rape. Johnson told Flournoy, "Get out of here. Get the 'F' out of here." Flournoy persisted, trying to open the door several times, and telling Johnson, "I need to talk to her."
Johnson advised L.M. to call the police and gave her a cell phone to do so. When Flournoy saw L.M. dialing he said, "Don't call the police. I'm out of here," and left.
Johnson confirmed L.M.'s account of the encounter. L.M. had previously told her about the rape. Johnson had been driving L.M. to work because Flournoy had been released from jail and L.M. was afraid to be on her own. On the day of the encounter, Johnson heard L.M. say, "He's here." Flournoy was at the door saying, "I just want to talk to you. I know I'm not supposed to talk to you. I just want to talk to you." Johnson told Flournoy to leave. Flournoy took a few steps back, but then returned. He repeated this action four to five times. L.M. was shaking during the encounter.
Detective Holden, who had made a previous arrangement to meet L.M. at the restaurant that day and was parked across the street, observed Flournoy attempt to contact L.M. L.M. was still visibly shaking when Detective Holden later spoke with her.
B. Defense Case
Two witnesses who knew Flournoy testified that the shirt that L.M. wore to the hospital was the type of shirt that he would typically wear. Two other witnesses testified that at the time of the rape, Flournoy had a sofa in his apartment that was large enough for a grown man to stretch out on.
Jessica Gomez, who described herself as a former friend of L.M. and a former friend of Flournoy's sister, testified that L.M. had described the rape to her. L.M. told her that she took off all her clothes except for her bra and underwear before getting into bed with Flournoy.
Cari Caruso, a forensic nurse, examined the reports from L.M.'s sexual assault examination. She concluded that the abrasions L.M. suffered were "minor" and were consistent with consensual intercourse.
During closing argument, defense counsel argued that Flournoy reasonably misinterpreted L.M.'s acts such as climbing into bed and other nonverbal communication as consent to have intercourse. According to defense counsel, the shirt L.M. wore to the hospital was given to her by Flournoy because she was going to spend the night.
DISCUSSION
I. TESTIMONY OF DNA EXPERT
Flournoy asserts that the court erred in allowing criminalist Rogala to rely on and testify about the opinions and conclusions of two other criminalists in the San Diego Police Department's crime lab. He contends that this testimony violated state hearsay rules and the confrontation clause of the United States Constitution. We conclude that the court properly admitted Rogala's testimony because (1) experts may properly rely on such hearsay evidence in rendering their opinions; (2) the challenged evidence was within the "business records" exception to the hearsay rule; and (3) the evidence did not violate the confrontation clause.
A. Background
Criminalist Rogala testified that for efficiency, the crime lab employs an analyst to prescreen evidence to determine whether there is sufficient DNA to warrant further testing. Criminalist Tammy Ballard conducted the prescreening of swabs taken from L.M.'s breasts and concluded the results warranted a complete DNA typing. Rogala then performed a complete DNA profile of the material from the swabs, which revealed male DNA. The profile was entered into a DNA database, and Rogala later received a report indicating that the sample tested positive as matching Flournoy.
Criminalist Adam Dutra then obtained a confirmation sample by performing a DNA profile of the sample obtained from Flournoy. Rogala performed a technical review of his work. At the time of trial Dutra was out of the state and could not testify. Rogala testified that based upon her review of his notes and reports, Dutra had followed the proper protocols and procedures. She opined that the test confirmed a positive match with the DNA profile of the swab taken from L.M.'s breasts.
To determine the probability that another random person could have provided a positive match for this DNA profile, Rogala referred to a report written by Dutra. Defense counsel objected on the grounds that her testimony was hearsay. The court concluded that if the People could establish the necessary foundation that the method and time of the report's preparation indicated trustworthiness, the report would fall within the official records exception to the hearsay rule.
The prosecutor then elicited that foundation from Rogala, in the jury's presence. Rogala testified that Dutra was a criminalist with the crime lab and that he underwent regular competency and proficiency testing. All criminalists employed the same method, a computer program, to determine population frequencies. Based upon her review of Dutra's calculations, Rogala testified that the likelihood of a person chosen at random would have the same DNA as that found on the breast swab was 1-in-41 quintillion for African-Americans and even higher for other racial groups.
In addition to the breast swab, Ballard also examined a swab taken from L.M.'s external genital area and determined that although there were sperm present, there was not enough to permit complete DNA testing. Dutra conducted the less precise YSTR testing on the sample, revealing a positive match for Flournoy's DNA. The likelihood for such a match with a random African-American male was 1 in 1,100. Flournoy did not object to this testimony. A portion of Dutra's report regarding the YSTR testing was admitted without objection.
B. Analysis
1. Hearsay objection
"'Evidence Code section 801[, subdivision (b),] limits expert opinion testimony to an opinion that is "[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates . . . ."'" (People v. Valdez (1997) 58 Cal.App.4th 494, 510.) Under this subdivision, "'[e]xpert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]'" (Ibid., citing People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).) "Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.]" (Gardeley, supra, 14 Cal.4th at p. 618.) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.]" (Ibid.) Moreover, "an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (Ibid.)
For example, in People v. Brown (2001) 91 Cal.App.4th 623, the defendant objected to expert DNA testimony because the prosecutor did not call a second DNA analyst to testify as to the procedures she employed in testing the evidence; instead, the prosecution relied upon the testimony of another analyst from the same laboratory who testified that the proper procedures were followed. After noting that the second analyst's report was properly admissible as a business record, the court determined that the testifying analyst could properly base her expert opinion on the nontestifying analyst's report: "'We reject the notion that the tests were rendered inadmissible because of the State's failure to call Dr. Blake's assistant, Ms. Mihalovich. Dr. Blake was permitted to rely on facts or data made known to him prior to his testimony [] of a type reasonably relied on by experts in forming and rendering opinions upon the subject in question. [Citation.] Indeed, an expert's testimony may be based on the work done or even hearsay evidence of another expert, particularly when, as here, the latter's work is supervised by the former. [Citation.]' [Citation.]" (Brown, supra, 91 Cal.App.4th at p. 653.)
Likewise in this case, it was permissible for Rogala to testify concerning her opinion as to the likelihood that another person would share the same DNA recovered from L.M. based upon calculations or tests conducted by Dutra and Ballard, even though such matter constituted hearsay.
2. Business records hearsay exception
In People v. Champion (1995) 9 Cal.4th 879 (Champion), a technician employed by a police fingerprint laboratory applied a chemical to some pieces of paper, causing latent fingerprints to appear. She then photographed the prints and wrote a report describing these actions. Later, a police fingerprint expert examined the report and the photographs, compared the photographs to the defendant's fingerprints, and found that they were the same. The fingerprint expert testified at trial regarding the technician's actions as well as his own. The technician did not testify. (Id. at pp. 914-915.) Rejecting arguments based on the hearsay rule and on the constitutional right to confront witnesses, the California Supreme Court held that the expert properly testified about the contents of the technician's report because the report was within the business records exception to the hearsay rule as set forth in Evidence Code section 1271. (Champion, supra, 9 Cal.4th at p. 915; see also People v. Beeler (1995) 9 Cal.4th 953, 978-979 [pathologist, who did not participate in autopsy, properly testified to contents of autopsy report under business records exception to hearsay rule]; People v. Clark (1992) 3 Cal.4th 41, 158 [same facts and result as in Beeler, but under Evid. Code, § 1280, hearsay exception for public records].)
Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
Likewise in this case, the court properly admitted the DNA report prepared by Dutra as it was subject to the business records exception to the hearsay rule. Rogala testified that all criminalists in the crime lab followed the same method - a computer program - to determine population frequencies. Dutra performed the DNA profiling of the sample furnished by Flournoy, and Rogala performed a technical review of his work. Based upon that review, she was satisfied that Dutra followed the proper protocols and procedures. As such, Rogala provided an adequate foundation to render the DNA report subject to the business records exception to the hearsay rule.
Flournoy asserts that even if the DNA report were admissible under the business records exception, Rogala was not allowed to relate Ballard's and Dutra's conclusions or opinions, citing People v. Terrell (1955) 138 Cal.App.2d 35, 57 [physician's opinion that patient had criminal abortion not admissible].) The reasoning in Terrell was that to be admissible under the business records exception the evidence ". . . must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion . . . ." (Id. at p. 57.) However, the Terrell court also explained that some opinions or conclusions were admissible, "It is true that some diagnoses are a statement of a fact or a condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen . . . ." (Id. at p. 58.)
Here, Rogala's testimony was not based upon an impermissible conclusion. The number recorded in Dutra's report was based upon his direct observation of the number generated by the computer program, and was therefore based upon his direct observation, not an inadmissible conclusion. (See People v. Beeler, supra, 9 Cal.4th at p. 981.)
3. Confrontation clause
In addition to challenging Rogala's testimony on state hearsay grounds, Flournoy asserts that it violated his federal Sixth Amendment right confront and cross-examine Dutra. This contention is unavailing.
a. Waiver
First, Flournoy has waived the right to raise this issue on appeal. While he objected on hearsay grounds, no confrontation clause objection was made. A claim that there has been a violation of the confrontation clause must be timely asserted at trial or it is forfeited on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869 [hearsay objection did not preserve confrontation clause claim]; People v. Alvarez (1996) 14 Cal.4th 155, 186 [same].)
b. Merits
Even if Flournoy did not waive the right to assert this argument on appeal, it is not well taken.
Flournoy asserts the admission of the DNA evidence from a scientist who did not do the analysis violated his right to confrontation as determined by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Contrary to appellant's contention, Crawford does not negate the established rule that experts can relate the information and sources upon which they rely in forming their opinions, as the information is not admitted for its truth and the expert is available for cross-examination. (Id. at p. 59, fn. 9.) Thus, Flournoy's confrontation rights were not violated when Rogala testified to the laboratory report prepared by Dutra under Rogala's supervision.
The United States Supreme Court explained in Crawford that the core concern of the confrontation clause is testimonial hearsay, which includes statements made during police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at trial. (Crawford, supra, 541 U.S. at pp. 50-53, 68.) The court held that such statements are inadmissible when the declarant is unavailable unless the defendant had a prior opportunity to cross-examine. (Id. at p. 68.) However, the confrontation clause does not bar the use of testimonial statements "for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9; see also Tennessee v. Street (1985) 471 U.S. 409, 414.) Accordingly, "Crawford does not undermine the establishedrule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) This is so for two reasons. First, the materials upon which the expert relies are not elicited for their truth but, rather, are examined to assess the weight of the expert's opinion. (Ibid.; People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57; see also Delaware v. Fensterer (1985) 474 U.S. 15, 19; People v. Coleman (1985) 38 Cal.3d 69, 90, 92-93.) Secondly, an expert is subject to cross-examination about his or her opinions. (Thomas, supra, 130 Cal.App.4th at p. 1210 .) Thus, even assuming that the population frequency figures contained in the lab report were "testimonial," its admission as a basis for the expert opinion rendered did not violate Flournoy's confrontation rights under Crawford.
Moreover, because we have concluded, ante, that the reports Rogala relied upon were business records, they were not "testimonial hearsay" under Crawford. The United States Supreme Court in Crawford held that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law . . . ." (Crawford, supra, 541 U.S. at p. 68.) Business records were identified by the court as nontestimonial hearsay. (Id. at pp. 53-56.)
For example, in People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton), the Court of Appeal was presented with the question of whether prison records of prior convictions were "testimonial" under Crawford. The court, relying on Crawford, noted that business records "are prepared for many purposes but not to provide evidence in a potential criminal trial or to determine whether criminal charges should issue. One of the requirements for the admissibility of business records is that '[t]he writing was made in the regular course of a business. . . .' [Citation.]" (Taulton, supra, 129 Cal.App.4th at p. 1224.) The court explained that because business records generally are not prepared for the purpose of being used as evidence at trial, they are not testimonial under Crawford. The court held that prison records are not testimonial because they are prepared to document acts and events relating to convictions and incarceration. And, "[a]lthough they may ultimately be used in criminal proceedings, as the documents were here, they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue." (Taulton, supra, 129 Cal.App.4th at p. 1225.) Accordingly, the admission of prison records under the business records hearsay exception does not implicate the confrontation clause. (Ibid.; see also People v. Martinez (2000) 22 Cal.4th 106, 116; People v. Purcell (1937) 22 Cal.App.2d 126, 132; cf. People v. Saffold (2005) 127 Cal.App.4th 979, 984 [a proof of service not testimonial hearsay under Crawford ]; People v. Johnson (2004) 121 Cal.App.4th 1409, 1413 [lab report "routine documentary evidence" nontestimonial under Crawford].)
Likewise in this case, because the DNA reports fell within the business records exception to the hearsay rule, the reports were not testimonial hearsay under Crawford.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Flournoy asserts that to the extent his trial counsel failed to object to Rogala's testimony concerning the matters contained in Ballard's and Dutra's reports, and neglected to raise an objection based upon the confrontation clause, that constituted ineffective assistance of counsel. We reject this contention.
We begin by summarizing the standards applicable to a claim of ineffective assistance of counsel. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid., italics omitted.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, supra, 43 Cal.3d at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation"].)
Here, there was no ineffective assistance of counsel because, as we have already concluded, the testimony by Rogala (1) was not inadmissible hearsay; and (2) did not violate the confrontation clause. Accordingly, any failure to object to Rogala's testimony cannot be considered ineffective assistance of counsel.
III. HEARSAY TESTIMONY OF L.M.'S AUNT
Flournoy asserts that his conviction must be reversed because the court erroneously admitted L.M.'s Aunt Wells's testimony regarding L.M.'s account of the rape. This contention is unavailing.
A. Background
During Wells's testimony, Flournoy's trial counsel objected on the grounds of hearsay to her recounting L.M.'s story about the rape that she told her in church. The prosecutor argued that Wells's testimony was admissible as a prior consistent statement, and under the "fresh complaint" exception to the hearsay rule. The court ruled that L.M.'s statements to Wells were inadmissible as prior consistent statements, but were admissible on the fresh complaint theory. The court further ruled that it would instruct the jury that the statements were not admitted for the truth of the matter stated. When trial resumed the court instructed the jury that it could not consider L.M.'s statements for their truth, but only for the circumstances under which L.M. made the disclosure. Wells then testified to what L.M. told her concerning the rape, as described in the factual background section, ante.
B. Analysis
Testimony regarding a victim's disclosure of a sexual assault is admissible "for a limited, nonhearsay purpose─namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others─whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750.) However, the testimony should be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose." (Id. at p. 762.) "Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim's statement into a hearsay assertion [citation]." (Id. at p. 763.)
Only enough detail should be given to show that the victim's "'complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject' [citation]; that is, the alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper." (People v. Burton (1961) 55 Cal.2d 328, 351, italics omitted.) For example, in Burton the challenged testimony that the victim's stepfather "'made me play with his peter'" (id. at pp. 337-338) was permissible because it was "simply a statement of the asserted fact without any further description." (Id. at p. 352.) In Brown, the challenged testimony was permissible because it was "limited to the timing of [the victim's] complaint and the circumstances under which it was made, omitting the content of the statements and specifically any description of the molestation itself." (People v. Brown, supra, 8 Cal.4th at p. 764.)
Here, Flournoy objects to that part Wells's testimony that L.M. told her that Flournoy "forcibly had sexual intercourse with her . . . ." However, that statement merely related that a crime had been committed, not the details of the crime itself. It is similar to, and in fact a less factual description of the incident than, the statement approved in People v. Burton, supra, 55 Cal.2d at pages 338, 352.
IV. FLOURNOY'S ATTEMPT TO CONTACT L.M.
Flournoy asserts that the court erred in admitting L.M.'s testimony concerning Flournoy's attempt to contact her at work following her testimony at the preliminary hearing. This contention is unavailing.
A. Background
When the prosecutor asked L.M. about Flournoy's attempt to contact her after the preliminary hearing, despite the fact he had been ordered to have no contact with her, defense counsel objected and requested a sidebar conference. During the subsequent hearing, the prosecutor argued that the evidence was relevant to L.M.'s credibility as it showed she feared Flournoy and also showed a consciousness of guilt on the part of Flournoy. Defense counsel argued the evidence was more prejudicial than probative because it made Flournoy look like a "crazed stalker." The trial court overruled defense counsel's objection, making the following findings:
"Well, two theories that have been presented, consciousness of guilt and relevance to the credibility of the witness, whether or not that was a formal no-contact order, subsequent contact by [an] alleged perpetrator with the alleged victim, I think is relevant on . . . those two theories. [¶] Obviously it is prejudicial but all relevant evidence is prejudicial. The question is whether it's unduly prejudicial when compared with [its] probative value, and . . . I do not find that it is. So the objection's overruled."
L.M. then testified as to Flournoy's attempts to contact her at her place of work, as described in the factual background, ante.
B. Analysis
"'"Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends '"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.]' The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence."'" (People v. Carter (2005) 36 Cal.4th 1114, 1167-1168.)
After determining that the evidence is relevant, the court must then determine "whether the probative value of the [evidence] was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice." (People v. Schied (1997) 16 Cal.4th 1, 13.) "Prejudicial," however, is not synonymous with "damaging." (People v. Karis (1988) 46 Cal.3d 612, 638.)
The testimony of L.M. concerning Flournoy's attempts to contact her, and the fear that engendered, was highly probative and not substantially outweighed by its potentially prejudicial effect. Evidence that L.M. was afraid of Flournoy was relevant to understanding her motivation in delaying identifying him as the rapist. (See People v. Ayala (2000) 23 Cal.4th 225, 277 [prosecution allowed to introduce evidence why victim misidentified defendant].) The fact that she continued to be in fear of Flournoy, and that she may have feared retaliation for her testimony at the preliminary hearing, was relevant to her credibility. (People v. Burgener, supra, 29 Cal.4th at p. 869 ["Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible"].)
The testimony was also relevant to show a consciousness of guilt on the part of Flournoy. He was told to leave the premises by Johnson, L.M.'s boss. However, he refused, and continued to try to open the locked door. He stated, "I know I'm not supposed to talk to you," indicating he knew he was under an order to stay away. Nevertheless, he would not leave until Johnson gave L.M. a cell phone and she called the police.
The potential prejudice of this testimony did not substantially outweigh its probative value. The fact that, despite the stay away order, Flournoy was willing to try to open the locked door of the restaurant and not leave until the police were called, may have been "damaging" to his case, but was not unduly prejudicial. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335 [evidence that defendant had previously violated restraining order not unduly prejudicial in spousal rape case].)
V. TESTIMONY OF L.M.'S SUPERVISOR
Flournoy asserts that the court erred in allowing her boss Johnson to testify about the fact that he had raped her and that she was scared because he had been released from jail. We reject this contention.
A. Background
Johnson testified that L.M. told her that she was raped by Flournoy and that she drove L.M. to work because L.M. was afraid to be on her own after Flournoy had been released from jail. Defense counsel objected on the grounds the testimony was hearsay. Defense counsel also argued the evidence was more prejudicial than probative.
The court overruled the objections, finding that L.M.'s statements to Johnson were admissible as to her state of mind, were relevant to her credibility, and were not unduly prejudicial when compared to their probative value.
B. Analysis
Evidence Code section 1250, subdivision (a) defines the state of mind exception to the hearsay rule as follows: "[E]vidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action . . . ."
The prosecutor offered the statements by L.M. to Johnson to show her state of mind─her fear of Flournoy─at the time she made the statement. Accordingly, the evidence was admissible if it was relevant and not unduly prejudicial. (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.)
Flournoy contends that this evidence was unduly prejudicial because the jury might have been led to believe that he had been in jail for a long time because it knew he was arrested in November 2004, and the preliminary hearing was in March 2005. However, the record contradicts this assertion. First, Detective Holden testified that he secured an arrest warrant for Flournoy in November 2004. He did not testify as to when he was arrested. Two months later he discovered Flournoy's new address and executed a search warrant at that address. Second, the preliminary hearing was held in February, not March, 2005. There was also no evidence presented to the jury that Flournoy was still in custody at the time of the preliminary hearing and that he was released only after that time. Johnson testified that she did not know when L.M. told her she was afraid to be on her own or when she began driving L.M. to work. Thus, there was no evidence from which the jury could have concluded that Flournoy was incarcerated from November 2004 to March 2005.
The court did not err in admitting L.M.'s statements to Johnson concerning the rape and her resulting fear of Flournoy.
VI. LESSER INCLUDED OFFENSE ISSUE
Flournoy contends that the court erred by only staying, and not striking, his count 2 conviction for assault with intent to commit rape as it was a necessarily included offense of his count 1 conviction for forcible rape. This contention is unavailing. Multiple convictions are permissible under section 954. Moreover, "[i]n California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged." (People v. Montoya (2004) 33 Cal.4th 1031, 1034, italics omitted.) However "[a] judicially created exception to the general rule permitting multiple convictions 'prohibits multiple convictions based on necessarily included offenses.'" (People v. Reed (2006) 38 Cal.4th 1224, 1227, quoting People v. Montoya, supra, 33 Cal.4th at p. 1034.) In Reed, the California Supreme Court stated the rule for determining whether multiple convictions are necessarily included: "Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (People v. Reed, supra, 38 Cal.4th at p. 1231, italics added.) Under the statutory elements test, "'"if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former."'" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1168, quoting People v. Montoya, supra, 33 Cal.4th at p. 1034.)
Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
Here, the court did not err in failing to strike the assault with intent to commit rape count as that constituted a separate act from the rape count. In addition to performing all the acts necessary to commit the rape, Flournoy also orally copulated L.M. This act was separate from the rape itself and was itself a violation of section 220. (See People v. Liakos (1982) 133 Cal.App.3d 721, 724-725 [defendant's convictions for assault with intent to commit rape, attempted oral copulation, and attempted rape were proper under section 954].)
The court also did not err in not striking the assault with intent to commit rape count as that rape could be committed with committing the assault. Section 261, subdivision (a)(2) defines rape as intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Italics added.) "Duress" is defined as "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted." (§ 261, subd. (b).) "Menace" is defined as "any threat, declaration, or act which shows an intention to inflict injury upon another." (§ 261, subd. (c).)
Thus, it is possible to commit a rape by duress or menace without committing an assault. Assault requires a present ability to commit the crime. One may commit an assault by means of a conditional threat, but only where the defendant intends to immediately enforce the threat by violence. A conditional future threat is not sufficient. (People v. Bolin (1998) 18 Cal.4th 297, 339; People v. Page (2004) 123 Cal.App.4th 1466, 1473.) By contrast, a threat of future violence would meet the definition of either duress or menace. Further, duress is not limited to a threat of violence. A threat of "retribution" would also suffice under the statutory definition. Hence, because it is possible to commit a rape without committing an assault with intent to commit a rape, the latter offense is not a lesser included offense of the former.
Flournoy cites several cases for the proposition that every rape by force includes an assault. (See People v. Ramirez (1969) 2 Cal.App.3d 345, 353; People v. Moran (1973) 33 Cal.App.3d 724, 730-731; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477.) However, except for Jose M., those cases were decided before the 1990 amendment to section 261, which added the "duress" and "menace" language. (Stats. 1990, ch. 630, § 1.) Further, in Jose M. the court concluded that the elements of duress or menace were not applicable in that case because the charge was rape in concert under section 264.1, which specifically required the use of force or violence. (In re Jose M., supra, 21 Cal.App.4th at p. 1477.)
Accordingly, the court did not err in failing to strike the count 2 assault with intent to commit rape conviction.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.