PEOPLE v. VILLATORO

Appellant's Petition for Review

Cal.May 13, 2011

Supreme Court No. 2nd Crim. No. B222214 S /9253/ IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent, VS. JUAN JOSE VILLATORO, Defendant and Appellant. Crim. No. B222214 Los Angeles County Superior Court Case No. BA339453 SUPREME COURT FILED may 18 2011 Craderick K. Ohincn Clark Oeaouty PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION EIGHT Edward J. Haggerty, 125779 Edward J. Haggerty, P.C. 20955 Pathfinder Road,Ste. 100 Diamond Bar, CA 91765 (626) 912-5551 (909) 843-6488 Attorney for Appellant, Juan Jose Villatoro Supreme Court No. 2nd Crim. No. B222214 IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Crim. No. B222214 Plaintiff and Respondent, Los Angeles County Superior Court Case No. BA339453 VS. JUAN JOSE VILLATORO, N e m o N o m e No me ” N e u e N e e e e n e e r e e ” “ e e e e e e e ” Defendant and Appellant. PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION EIGHT Edward J. Haggerty, 125779 Edward J. Haggerty, P.C. 20955 Pathfinder Road,Ste. 100 Diamond Bar, CA 91765 (626) 912-5551 (909) 843-6488 Attorney for Appellant, Juan Jose Villatoro il TABLE OF CONTENTS TABLE OF CONTENTS...........scssssssssssessescssssssssessssesecssscssessesscnsssssssessaseasessseess I TABLE OF AUTHORITIES..........cccscsssssccscscesssssesccssescessssssssssacsessasessesesaes IV PETITION FOR REVIEW.........ccssccsssssssssscsscrscseccsesesssessscsscssensesssessnssssseasenses 1 ISSUES PRESENTED FOR REVIEW........cscccsssssscessssccsesssccssssesssscecsacencesserss2 NECESSITY FOR REVIEW.........csccscssscsssssssscscssesssssscsssssscssrscsacesssenssotsseessceess3 STATEMENT OF THE CASE AND FACTS..........cccssscsscsssssscssessssssessersceeres3 ARGUMENT.......cccssssssssssssscesssrssscsssssscesesssessesscrscsacsscssscssnenesessessasenseacesenssseaceees4 I. REVIEW SHOULD BE GRANTED TO CONSIDER THE CONSTITUTIONAL VALIDITY OF THE MODIFIED CALCRIM No. 1191 INSTRUCTION GIVEN IN THIS CASE........ccsccsssssssssssseerees 4 Ax IMtroductiOn...........cccccssccsssssssscccccssssssssccscsssccsscessccecsscsesesessescssscesccscnccescs 4 B. The Modified Instruction Guiding The Jury In Its Use Of Evidence Admitted Pursuant To Section 1108 Is Constitutionally Infirm Because It Interfered With The Presumption Of Innocence And Allowed The Jury To Infer Guilt And To Make A Finding Based On A Standard Of Proof Less Than Beyond A Reasonable Doubt.............sscssssssssscscesssesscescessssscsssssoesssssssssseesetesccsscssssscssees5 Il. REVIEW SHOULD BE GRANTED TO RECONSIDER WHETHER EVIDENCE CODE SECTION1108 VIOLATES DUE PROCESS AND EQUAL PROTECTION....cccsccssscssccsccescccscsccscsscsssssscccesesscsscees8 A. Section 1108 And Due Process ............cccccsssssssssscsssssscccecsecssscsscccescescocnce9 B. Section 1108 And EqualProtection............cccsscsssceccssessscsscssssssessssesses 10 Il. REVIEW SHOULD BE GRANTED BECAUSE THE TRIAL COURT DEPRIVED VILLATOROOFHIS RIGHT TO CONFRONTATION WHENIT FOUND KIMBERLYJ. TO BE UNAVAILABLE AND PERMITTED THE PROSECUTORTO READ HERPRELIMINARY HEARING TESTIMONY TO THE JURY....ccsscccsssssessscssssccsssescssssccssscsssssssssescseressnesenscessssesssasesoncesasssonssoonsens 11 A. The Error........ccssssssssosescsocsccscscccnccccsscsesnnnnscsncesscsesscssessscsscncsssessssccsnnsees 11 B. Relevant Proceedings:............ccsssccsccccesssecssessssesccsesesscssosscesssssseeneves 12 C. The Trial Court Failed To Take Necessary Steps To Compel Kimberly J.’s Testimony Prior To Declaring Her Unavailable............ 12 D. Admission Of Kimberly J.’s Preliminary Hearing Testimony Deprived Villatoro Of His Federal And State Rights To Confrontation ..........ssccsscssccscssesssccscsesecsccccccccesccessnsnssconsasescnsscessscsssoncees 15 IV. VI. THIS PETITION SHOULD BE GRANTED TO CONSIDER WHETHERTRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCEIN FAILING TO OBJECT TO THE MODIFIED CALCRIM No. 1191 AND IN FAILING TO OBJECT ON CONFRONTATION GROUNDSTO THE SEXUAL ASSAULT EXAMINER’S HEARSAY TESTIMONY.......cccsssosssesccesseesesessescsecees 17 CALCRIM No. 220’S DEFINITION OF REASONABLE DOUBT VIOLATED VILLATORO’S FEDERAL DUE PROCESSRIGHT TO HAVEHIS GUILT DETERMINED BEYOND A REASONABLE DOUBT AND REQUIRESREVIEW........ssccssssssssssescesescseessrsscsssseeseers 18 CALCRIM No.220 DEPRIVES DEFENDANTSOFDUE PROCESS BY FAILING TO ADVISE JURORS THAT THE PROSECUTION HAS THE BURDENOFPROVING “EACH ELEMENT” BEYOND A REASONABLE DOUBT............cccocsssscssesenresssreseecssssccscncccssncesessccssoes 19 VII. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE USE OF A DEADLY ORDANGEROUS WEAPONFINDING ON THREE OF THE RAPE COUNTSANDASARESULT VILLATORO WASDEPRIVED OF DUE PROCESS........scssssssesseees21 il A. Imtroduction.........ccccccccccscsccsccccscsssssscsscssscceccccccccssccccccccscecssesesessccccesceses21 B. Standard of Review ...........ccccccsssssssssssssscccccscscsesecsscccsscessscssscscsssessssecs21 C. The Evidence Failed To Establish That The Stun Gun Was A Dangerous Weapon..........cccccessssscessssssccssccsssccssssecsesccsssceesssssecsesessssssessenees22 VHI. REVIEW SHOULD BE GRANTED TO CONSIDER WHETHER ADMISSION OF TESTIMONY CONCERNING SEXUAL ASSAULT EXAMINATIONS PERFORMED BY NON- TESTIFYING EXAMINERS VIOLATED VILLATORO’S RIGHT TO CONFRONTATIONju...ccscscscsssssscsccssssssssssscenccseesnees24 A. Proceedings Below ............sssscssssssscssersesescssssecssossessccssscesssssessorsscsecees24 B. The Confrontation Objection Was Not Forfeited...............ccsscessceees25 C. Crawford v. Washington And Melendez-Diaz v. Massachusetts.......25 D. People V. Geter.....csccscssseessssssccssssccsesscssssssscssssscssssssssssesesssssscccsssesensssees26 REQUEST TO GRANT AND HOLD.00.......cesccssssescssscssscesssscssecsaccsscessseneecees27 CONCLUSION..........ccssssscsscssssssssscessssscscssecssossssssscessrsesssscsssssscesscscessesscssessensess27 CERTIFICATE OF COMPLIANCE........ccssssssscsssssssessecscsssccssssscsscsscccensensess28 APPENDIX A.,......cccsscssscsesssecserscsscesseccsccssssscsscsenssassnssacscsessacensescsassacssrsesserseees29 ili TABLE OF AUTHORITIES U.S. SUPREME COURT CASES Apprendi v. New Jersey (2000) 530 U.S. 466 20 Coffin v. United States (1895) 156 U.S. 432 19 Craig v. Boren (1976) 429 U.S. 190 [109 S.Ct. 2854, 106 L.Ed.2d 134] --------- 11 Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] ------ 15, 24, 25, 26 Estelle v. McGuire (1991) 502 U.S. 62 [112 S.Ct. 475, 116 L.Ed.2d 385] --------- 9 Estelle v. Williams (1976) 425 U.S. 501 20 Griffin v. Illinois (1956) 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed.2d 891] ------------ 11 In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368] -- 19, 21 Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781] ------- 22 Johnson v. Louisiana (1971) 406 U.S. 356[92 S.Ct. 1620, 32 L.Ed.2d 152]----- 18 Melendez-Diaz v. Massachusetts (2009)__—iU«.S. [129 S.Ct. 2527] 24, 25, 26, 27 O'Connorv. Ohio (1966) 385 U.S. 92 25 Pointer v. Texas (1965) 380 U.S. 400 [85 S. Ct. 1065; 13 L.Ed. 2d 923]--------- 12 Shapiro v. Thompson(1969) 394 U.S.618 [89 S.Ct. 1322, 22 L.Ed.2d 600] --- 11 Spencerv. Texas (1967) 385 U.S. 554 [87 S.Ct. 648, 17 L.Ed.2d 606] ------------- 9 Strickland v. Washington, (1984) 466 U.S. 668 17 United States v. Salerno (1992) 505 U.S. 317 15 Victor v. Nebraska (1994) 511 U.S. 1 [114 S.Ct. 1239, 127 L.Ed.2d 583] ------- 19 CALIFORNIA SUPREME CourT CASES In re Gladys R. (1970) 1 Cal.3d 855 25 In re Kapperman(1974) 11 Cal.3d 542 10 Moradi-Shalal v. Fireman’s FundIns. Cos. (1988) 46 Cal.3d 287 ------------------ 9 People v. Aguilar (1997) 16 Cal.4th 1023 22 People v. Anderson (1987) 43 Cal.3d 1104 9 People v. Chavez (1980) 26 Cal.3d 334 25 People v. Cooper (1991)53 Cal.3d 771 18 People v. Dungo, (S176886) 27 People v. Enriquez (1977) 19 Cal.3d 22 13 People v. Falsetta (1999) 21 Cal.4th 903 6, 8,9 People v. Geier (2007) 41 Cal.4th 555 26 People v. Gutierrez, S176620 26, 27 iv People v. Johnson (1980) 26 Cal.3d 557 21 People v. Ledesma (1987) 43 Cal.3d 171 17 People v. Lopez, (S177046) 27 People v. Louis (1986) 42 Cal.3d 969 13 People v. Malone (1988) 47 Cal.3d 1 18 People v. Mendoza (2000) 23 Cal.4th 896 9 People v. Nation (1980) 26 Cal.3d 169 17 People v. Pope (1979) 23 Cal.3d 412 17 People v. Reliford (2003) 29 Cal.4th 1007 4 People v. Romo (1975) 14 Cal.3d 189 10 People v. Rutterschmidt, (S176213) 27 People v. Scott (1994) 9 Cal.4th 331 18 People v. Simpson (1954) 43 Cal.2d 553 19 Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489 9 CALIFORNIA APPELLATE COURT CASES People v. Beeson (2002) 99 Cal.App.4th 1393 20 People v. Blake (2004) 117 Cal.App.4th 543 22 People v. Crawford (1997) 58 Cal.App.4th 815 20 People v. Dupre (1968) 262 Cal.App.2d 56 21 People v. Francis (1988) 200 Cal.App.3d 579 14 People v. Goslar (1999) 70 Cal.App.4th 270 11 People v. Mayo (2006) 140 Cal.App.4th 535 20 People v. McCullough (1979) 100 Cal.App.3d 169 19 People v. Quintanilla (2005) 132 Cal.App.4th 572 -------------------------5,6, 7,17 People v. Ramos (2008) 163 Cal.App.4th 1082 20 Peoplev. Sul (1981) 122 Cal.App.3d 355 13,14 People v. Walker (1983) 145 Cal.App.3d 886 14 People v. Wilson (2008) 166 Cal.App.4th 1034 7 People.v. Simms (1970) 10 Cal.App.3d 299 25 FEDERAL CASES Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 --------------------------- 8, 9,10 Jammalv. Van de Kamp (9thCir. 1991) 926 F.2d 918 10 Masonv. United States (10th Cir. 1969) 408 F.2d 903.) 13 McKinneyv. Rees (1993) 993 F.2d 1378 10 Vv Murrayv. Superintendent, Ky. State Penitentiary (6th Cir. 1981) 651 F.2d 451 10 Panzavecchia v. Wainwright(5th Cir. 1981) 658 F.2d 337------------------------ 10 United States v. De Coster (D.C.Cir. 1973) 487 F.2d 1197------------------------- 17 CALIFORNIA STATUTES Evidence Codesection 240 13,15 Evidence Codesection 352 8 Evidence Codesection 1108 passim Evidenc Code section 1109 6, 10 Evidence Code section 1291 12,14, 15 Penal Code section 1096 21 Penal Code section 667.61 21 CONSTITUTIONAL PROVISIONS Cal. Const., art. I, § 15 12,17 U.S. Const., 6th Amend. 12, 17, 20, 26 U.S. Const., 14th Amend. 12, 20 Court RULES California Rules of Court, rule 8.504 28 Fed.R.Evid., rule 804 13,15 JURY INSTRUCTIONS CALCRIM No. 220 passim CALCRIM No. 222 18 CALCRIM No. 1191 passim CAVIC No. 2.50.01 4,5 CAUIC No. 2.50.02 5 Vi MISCELLANEOUS AUTHORITIES 4 Weinstein and Berger, Weinstein's Evidence 13 Bryden and Park, Other Crimes Evidence in Sex Offense Cases (1994) 78 Minn. L.Rev. 529 11 Merriam-Webster Online Dictionary, http://www.m-w.com --------------------- 8 Reed, Reading Gaol Revisited: Admission of Uncharged Misconductin Sex Offender Cases (1993) 21 American J. of Crim. Law 127 ------------------------ 11 vii Vili Supreme Court No. 2nd Crim. No. B222214 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) Plaintiff and Respondent, ) ) vs. ) ) JUAN JOSE VILLATORO, ) Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Defendant/Appellant, Juan Jose Villatoro (“Villatoro”), respectfully petitions for review following the decision of the Court of Appeal, Second Appellate District, Division Eight (per Rubin, J.) filed April 12, 2011. ISSUES PRESENTED FOR REVIEW 1. Whether the modified CALCRIM No. 1191 instruction interfered with the presumption of innocence and Villatoro’s right to have the jury make a determination of guilt upon proof beyond a reasonable doubt. 2. Whether the admission of propensity evidence under Evidence Code section 1108 violated Villatoro’s federal constitutional rights to due process and equal protection. 3. Whetherthetrial court’s admission of the preliminary hearing testimony of a witness violated Villatoro’s federal constitutional right to confrontation. 4. Whether trial counsel committed ineffective assistance of counsel by failing to object to the modified CALCRIM No. 1191 and in failing to object on confrontation groundsto the sexual assault examiners hearsay testimony. 5. Whether the definition of reasonable doubt found in CALCRIM No. 220 violates due process by limiting reasonable doubt to the evidence presented at trial and by suggesting a preponderancestandard of proof. 6. Whether CALCRIM No. 220 violates due process by failing to advise jurors that the prosecution has the burden of proving “each element” beyond a reasonable doubt. 7. Whether the lack of sufficient evidence to establish the deadly or dangerous weaponfinding on three rape counts deprived Villatoro of due process. 8. Whether the admission of testimony concerning sexual assault examinations performed by non-testifying examiners violated Villatoro’s right to confrontation. NECESSITY FOR REVIEW Supreme Court review is warranted in this case because it raises significant issues impacting a criminal defendant’s fundamental due process and equal protection rights as well as his rights to an impartial jury and a verdict of guilt upon proof beyond a reasonable doubt. In this case, the trial court’s admission of highly inflammatory propensity evidence under Evidence Code section 1108 presents the issue of whetherthe error violated both due process and equal protection. In addition, the present petition raises the question of confrontation violations in the context of testimony of sexual assault exams by a non-examining witness, as well as the admission ofpreliminary hearing testimony. The trial court also deprived Villatoro of due process by instructing the jury using a modified version of CALCRIM No. 1191, which interfered with the presumption of innocence and deprived Villatoro of his right to a verdict of guilt only upon proof beyond a reasonable doubt. In addition, any failure by trial counsel to preserve the objections to CALCRIM No. 1191 and the sexual assault examination hearsay testimonyalso raises the issue of ineffective assistance of counsel. The present petition also raises the issue of whether Villatoro was deprived of his right to due process in that there was insufficient evidence to establish the deadly and dangerous weapon enhancement on several counts. Finally, Supreme Court review is also warranted becausethis petition presents issues that have recently arisen in the Courts of Appeal concerning the constitutional validity of the CALCRIM No. 220 reasonable doubt instruction. STATEMENT OF THE CASE AND FACTS Villatoro refers to and incorporates by reference the factual and procedural history found in the Court of Appeal’s opinion attached to this petition as Appendix A. (Opn., pp. 2-8.) ARGUMENT I. REVIEW SHOULD BE GRANTED TO CONSIDER THE CONSTITUTIONAL VALIDITY OF THE MODIFIED CALCRIM NO. 1191 INSTRUCTION GIVENIN THIS CASE A. Introduction The jury was instructed with a modified version of CALCRIM No. 1191 as follows: The People presented evidence that the defendant committed the crime of rape as alleged in counts 2,4, 7, 9, 12 and 15 and the crime of sodomyas alleged in count 14. These crimes are defined for you in the instructions for these crimes. If you decide that the defendant committed one of these charged offenses, you may, but are not requiredto, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and must prove it beyond a reasonable doubt before you may consider one charge as proofof specific intent of another charge. (2 CT 249.) In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, this court held that CALJIC No. 2.50.01, the former propensity evidence instruction given in sex offense cases, correctly states the law and that it does not violate due process. The modified CALCRIM No. 1191 instruction given in this case differs significantly from the standard instruction because it addressed charged crimes as propensity evidence as 4 opposed to uncharged bad acts. Asa result, the modified instruction interfered with the presumption of innocence, made conviction possible without proof beyond a reasonable doubtand is thus grounds for review and reversal. B. The Modified instruction Guiding The Jury In Its Use Of Evidence Admitted Pursuant To Section 1108 Is Constitutionally Infirm BecauseIt Interfered With The Presumption Of Innocence And Allowed The Jury To Infer Guilt And To Make A Finding Based On A Standard Of Proof Less Than Beyond A Reasonable Doubt In drafting the CALCRIM No. 1191 analog to CALJIC No. 2.50.01, the CALCRIM committee modified the language of CALJIC No. 2.50.01 and drafted an instruction that advises jurors that “[i]f you decide that the defendant committed the uncharged offense[s], you may, but are not required to, conclude from that evidence that the defendant wasdisposed orinclined to commit sexual offenses, and based on that decision, also conclude that the defendant waslikely to commit [and did commit] , as charged here.” Like the revised version of CALJIC No. 2.50.01, the modified CALCRIM No. 1191 instruction in the present case also advised jurors that “[i]t [the other charged sex offense evidence| is not sufficient by itself to prove that the defendantis guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and must prove it beyond a reasonable doubt before you may consider one charge as proof of specific intent of another charge.” Despite the inclusion of this cautionary language,there are still flaws in the modified CALCRIM No. 1191 that undermine the defendant’s presumption of innocence andthe state’s obligation to prove guilt beyond a reasonable doubt. In People v. Quintanilla (2005) 132 Cal.App.4th 572, the First District Court of Appeal considered the propriety of a modified CALJIC No. 2.50.02 relating to the consideration of charged offenses to show propensity to commit other charged crimes. CALJIC No. 2.50.02 addresses the admissibility of domestic violence evidence in cases involving domestic violence and is analogous in all material respects with 5 CALJIC No. 2.50.01. Observing that Evidence Code section 1109 “was clearly intended to make evidence of uncharged domestic violence admissible in cases where it was not previously permitted [citation omitted],” the Quintanilla court held that the modified CALJIC No.2.50.02 instruction given in that case was erroneous. (/d. at pp. 579-580.) A key consideration of the Quintanilla court in determining that charged offenses were not to be considered as propensity evidence was its view that the California Supreme Court had relied heavily on the fact that evidence of other offenses may be excludedif unduly prejudicial when it upheld Evidence Code section 1108 in People v. Falsetta, supra, 21 Cal.4th at p. 903. (People v. Quintanilla, supra, 132 Cal.App.4th at p. 572, 582.) Because “[e]vidence of other charged offenses cannot be excluded . . . no matter how prejudicial it may be,” the Quintanilla court concluded that “it is fundamentally unfair to allow the jury to infer the defendant's propensity to commit crimes of domestic violence from his commission of other charged offenses.” (/d. at pp. 579-580.) In rejecting the consideration of charged offenses as propensity evidence, the Quintanilla court also concludedthat the Legislature did not intend for juries to weigh the evidence supporting domestic violence charges under two different standards of proof — preponderance of the evidence for propensity purposes and beyond a reasonable doubt in determining guilt of the charge. In Quintanilla, the modified instruction permitted the jury “to consider charged offenses under the preponderance standard for purposes of drawing a propensity inference, while also weighing the same evidence under the reasonable doubt standard for purposes of deciding Quintanilla’s guilt on each charge.” (People v. Quintanilla, supra, 132 Cal.App.4th at p. 583.) The First District concluded that “[s]uch mental gymnastics may or may not be beyond a jury’s ability to perform, but we are confident they are not required by section 1109.” (/bid.) In the present case, though the modified CALCRIM No. 1191instruction did not tell the jurors that the preponderance of the evidence standard applied to the determination of an offense for propensity purposes, there wasstill a deficiency in the instruction becauseit failed to inform the jurors of any standard to be applied to that consideration. Instead, the instruction stated that the reasonable doubt standard applied to the consideration of the offense as proof of “specific intent of another charge.” (2 CT 249.) Nostandard of proof was set forth with respect to a charged offense as evidence of propensity to commit another charged crime. In the absence of such instruction, the jury could have used any standard of proof or no standard in determining that one crime wassufficiently proved to show a propensity to commit other charged offenses. The Sixth District addressed a similar issue and reached a conclusion different from Quintanilla in the case of People v. Wilson (2008) 166 Cal.App.4th 1034. However, in Wilson, the instruction did not relate to the use of charged offenses for propensity but instead “for the limited purpose of determining the specific intent of the defendant in certain charged offenses.” (/d. at p. 1045.) In effect, the amendment to CALCRIM No. 1191 at issue in Wilson transformed the instruction from one addressing the use of charged crimes as evidence of propensity to the use of such crimes in determining the defendant’s mental state as relevant to other charged offenses. For this more limited purpose, the instruction at issue in Wilson was permissible and did not implicate the defendant’s constitutional right to the presumption of innocence and proof beyond a reasonable doubt. Thus, the Wilson opinionis distinguishable and is inapposite to the present case. There are additional constitutional infirmities in the modified version of CALCRIM No. 1191 given in this case. Though the modified CALCRIM No. 1191 advised jurors that “[i]t [other charged offense evidence] is not sufficient to prove the defendant is guilty of another charged offense,” that cautionary admonition failed to reiterate for the jury that, despite the inferences which may be drawn from the 7 defendant’s prior conviction, hestill retains his presumption of innocence. Indeed, even were such language incorporated into the instruction, it is Villatoro’s position that CALCRIM No. 1191’s admonition that a finding of commission of another sexual offense may result in a conclusion of guilt of the charged crime blatantly violates the due process guarantee of the presumption of innocence. Unlike CALJIC No. 2.50.01 that uses the term “infer,” the modified version of CALCRIM No. 1191 given in this case uses the word “conclude” which is a more definitive term and has the common meaning “to make a decision about”or “to reach as a logically necessary end by reasoning.” (Merriam-Webster Online Dictionary, http:/Awww.m-w.com/dictionary/conclude, as of June 23, 2010.) In essence, as given to the jury in this case, the modified CALCRIM No. 1191 advised jurors that they could conclude or decide that Villatoro was guilty of charged sexual offenses based on their finding by an unknownstandard that he had committed another charged sex crime. This instruction effectively deprived Villatoro of the presumption of innocence and a jury determination of proof of the elements of the charged sexual offenses beyond a reasonable doubt. Such a result is a violation of due process and warrants review by this court, particularly in light of the inconsistent decisions in People v. Quintanilla, supra, 132 Cal.App.4th at p. 572 and People v. Wilson, supra, 166 Cal.App.4th at p. 1034. ll. REVIEW SHOULD BE GRANTED TO RECONSIDER WHETHER EVIDENCE CODE SECTION 1108 VIOLATES DUE PROCESS AND EQUAL PROTECTION In People v. Falsetta, supra, 21 Cal.4th at p. 917, this court rejected a due process challenge to Evidence Codesection 1108, finding that the statute was saved from unconstitutionality because it incorporates the balancing required under Evidence Code section 352. However, Falsetta must be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202 [123 S. Ct. 1398, 155 L.Ed. 2d 363]. In 8 Garceau v. Woodford, the Ninth Circuit held that using other crimes evidence to infer criminal propensity violates the due process clause. (Garceau v. Woodford, supra, 275 F.3d at p. 769.) Though Garceau involved a homicide, its holding was not so limited, and the Falsetta decision upholding section 1108 should be reconsidered in light of this more recent Ninth Circuit precedent. (/d. at p. 782, conc. opn. of O’Scannlain, J., citing Natali & Stigall, Are You Going to Arraign His Whole Life?: How Sexual Propensity Evidence Violates the Due Process Clause (1996) 28 Loyola U. Chi. L.J. 1, 12-13.) A. Section 1108 And Due Process The rule of stare decisis dictates precedent must be followed so as to maintain certainty, predictability, and stability within the law. (See generally, People v. Mendoza (2000) 23 Cal.4th 896, 924; Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 503-504; Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287, 296.) However, the rule is flexible, and courts are permitted to revisit issues where the prior opinion relates to a matter of continuing concern in the community, or where “subsequent developments indicate an earlier decision was unsound, or has becomeripe for reconsideration.” (Jd. at p. 297; see also, People v. Anderson (1987) 43 Cal.3d 1104, 1138-1141.) The “subsequent development”hereis the Ninth Circuit’s decision in Garceau. The United States Supreme Court has approved introduction of other crimes evidence to prove intent, identity, an element of the offense, malice, motive, plan or design, and to impeach or rebut defense evidence. However, admission for any other reason arguably violates due process guarantees in the absence of a limiting instruction. (Spencer v. Texas (1967) 385 U.S. 554, 560-561[87 S.Ct. 648, 17 L.Ed.2d 606]; but see Estelle v. McGuire (1991) 502 U.S. 62, 75, fn.5 [112 S.Ct. 475, 116 L.Ed.2d 385] — “Because we need not reach the issue, we express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime.”) Federal 9 circuit courts have thus found admission of other crimes evidence for purposes other than “to show conduct in conformity therewith” without a limiting instruction, to violate due process rights. (Garceau v. Woodford, supra, 275 F.3d at p. 774; see e.g., Panzavecchia v. Wainwright (Sth Cir. 1981) 658 F.2d 337, 341; Murray v. Superintendent, Ky. State Penitentiary (6th Cir. 1981) 651 F.2d 451, 453.) In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384, the Ninth Circuit held that where there are no permissible inferences to be drawn from other crimes evidence, its admission violates due process. (See also, Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) The court also deemed propensity or “bad character” evidence “contrary to firmly established principles of Anglo-American jurisprudence.” (McKinney v. Rees, supra, 993 F.2d at pp. 1380-1386.) In Garceau, the federal appellate court added that even where there is a permissible inference to be drawn from the other crimes evidence, due process rights are violated if the jury is “invited to draw the additional inference of criminal propensity.” (Garceau v. Woodford, supra, 275 F.3d at p. 776.) In light of the subsequent opinion in Garceau v. Woodford, supra, 275 F.3dat p. 776, it is appropriate for this court to reconsider its decision in People v. Falsetta, supra, 21 Cal.4th at p. 903. Therefore, review should be granted in this case. B. Section 1108 And Equal Protection A legislative enactment runs afoul of the equal protection clause where it arbitrarily treats similarly situated individuals differently. (People v. Romo (1975) 14 Cal.3d 189, 196.) As propensity evidence is admitted only in sex cases, domestic violence and elder abuse cases (Evid. Code, § 1109) and excluded in all other prosecutions, Evidence Code section 1108 violates the equal protection clause. While the Legislature may make reasonable classifications among persons, entities and activities, the classification must not be arbitrary and must be based upon some difference between the classes which bears a substantial relation to a legitimate governmental objective. (Jn re Kapperman (1974) 11 Cal.3d 542, 545; People v. 10 Goslar (1999) 70 Cal.App.4th 270.) When a classification impinges on a fundamental constitutional right, it is subject to at least “intermediate” scrutiny and will be upheld only if it is substantially related to an important governmental interest. (Shapiro v. Thompson (1969) 394 U.S. 618, 629-63 1[89 S.Ct. 1322, 22 L.Ed.2d 600]; Craig v. Boren (1976) 429 U.S. 190, 197 [109 S.Ct. 2854, 106 L.Ed.2d 134]; Griffin v. Illinois (1956) 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed.2d 891].) By enacting section 1108, the California Legislature has substantially compromised the right to a fair trial of those accused of sex offenses by permitting propensity evidence to be used against them, while excluding admission of the same sort of evidence against those accused of non-sexual crimes. This legislative Classification is irrational because the incidence of recidivism for sex offenders is lower than that of robbers or murderers, or other types of offenders. (Bryden and Park, Other Crimes Evidence in Sex Offense Cases (1994) 78 Minn. L.Rev. 529, 568; Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct in Sex Offender Cases (1993) 21 American J. of Crim. Law 127, 151.) Therefore, since review should be granted to allow this court to reconsider the due process challenge to section 1108, this court should also considerthe related issue ofits violation of equal protection. Hl. REVIEW SHOULD BE GRANTED BECAUSETHE TRIAL COURT DEPRIVED VILLATORO OFHIS RIGHT TO CONFRONTATION WHENIT FOUND KIMBERLYJ. TO BE UNAVAILABLE AND PERMITTED THE PROSECUTOR TO READ HER PRELIMINARY HEARING TESTIMONY TO THE JURY A. The Error Thetrial court denied Villatoro his constitutional right to confront witnesses and committed reversible error when it found Kimberly J. to be unavailable as a witness and permitted the prosecutor to read Kimberly J.’s preliminary hearing testimony to the jury. Kimberly J. should not have been found unavailable due to a mere refusalto testify 11 because the lower court failed to take even the mildest steps to compel Kimberly to testify. B. Relevant Proceedings: In this case, Kimberly J. testified at the preliminary hearing. (CT 5-49.) Kimberly appeared at trial, but the prosecutor advised the court that Kimberly was refusing to testify. (4 RT 1539.) Outside the presence of the jury, Kimberly was sworn and took the witness stand. In response to questions by the district attorney, Kimberly stated that she did not wantto testify and that she refused to do so. In addition, she claimed that there was nothing the prosecution or the court could do to induce herto testify. (4 RT 1540.) She also stated that she would nottestify even if the court told her that she would be fined for refusing to do so. (4 RT 1541.) After the parties concluded their examination of Kimberly,the trial court then found that she was unavailable. Based on Kimberly’s testimony and the court’s observation of her body language and demeanor, the trial court concluded “that nothing would induceherto testify.” (4 RT 1544.) C. The Trial Court Failed To Take Necessary Steps To Compel Kimberly J.’s Testimony Prior To Declaring Her Unavailable The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The confrontation clause of the Sixth Amendment is made applicable to the states through the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400 [85 S. Ct. 1065; 13 L.Ed. 2d 923].) The California Constitution contains a similar provision at article, I, section 15. (Cal. Const., art. 1, § 15.) In this case, the lower court’s failure to take adequate steps to compel Kimberly J.’s testimony and its subsequent declaration of unavailability resulted in a violation of Villatoro’s rights to confrontation. Under Evidence Code section 1291, evidence of former testimony is admissible if the declarant is unavailable as a witness and the opposing party had an 12 opportunity to cross-examine the declarant at the prior proceeding. “Former testimony is admissible under Evidence Code section 1291 only if the declarant is unavailable as a witness.” (Comment -- Assembly Committee on Judiciary, found following the text of section 1291 in West’s Annotated California Codes [emphasis added]; see also People v. Louis (1986) 42 Cal.3d 969, 983 [prosecutor may offer the prior testimony of a witness only if he establishes unavailability of the witness].) The term “unavailable as a witness” is defined in Evidence Codesection 240, which lists six categories of unavailable witnesses including, “(6) The declarant is present at the hearing and refuses to testify concerning the subject matter of the declarant’s statement despite an order from the court to do so.” In People v. Sul (1981) 122 Cal.App.3d 355, 362-365, the Court of Appeal addressed the sixth category — witnesses whoare present in court and simply refuse to testify without making a claim of privilege.’ The People bear the burden ofproving unavailability (/d. at p. 361), “and the showing must be made by competent evidence.” (People v. Enriquez (1977) 19 Cal.3d 221, 235.) Because the jury does not have the opportunity to observe the demeanor and manneroftestifying of an unavailable witness, the hearsay exception which permits the introduction of former testimony of an unavailable witness must be narrowly construed. (People v. Louis, supra, 42 Cal.3d at pp. 982-983.) Thus, the necessity for denying confrontation of the witness before the trier of fact must be clearly demonstrated. (/bid.) In keeping with the preference favoring live testimony, the Su/ court held that former testimony of a witness who refuses to testify is admissible only if the court takes “reasonable steps to induce the witness to testify unless it is obvious that such steps would be unavailing.” (People v. Sul, supra, 122 Cal.App.3dat p. 365.) ' The holding in Su/ brings California into line with other jurisdictions. Under federal law, a witness is unavailable if he “persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so.” (Federal Rules of Evidence, rule 804(a)(2); see Mason v. United States (10th Cir. 1969) 408 F.2d 903.) Many other jurisdictions have a similar rule. (4 Weinstein and Berger, Weinstein’s Evidence, paragraph 804(a)[02], pp. 804-59 to 804-60.) 13 The question of what steps are reasonable will depend on the facts of the case. Reasonable steps can include such things as providing the witness with an attorney if he requests one, incarcerating the witness, granting a continuance, and prosecuting the witness for criminal contempt. (People v. Francis (1988) 200 Cal.App.3d 579, 585; People v. Sul, supra, 122 Cal.App.3d at pp. 365-366.) Other measures can include offering the witness immunity and ordering him totestify. (People v. Walker (1983) 145 Cal.App.3d 886, 893-894.) However, a court has not taken the requisite “reasonable steps to induce the witnessto testify” (People v. Sul, supra, 122 Cal.App.3d atp. 365) whereit fails to utilize available steps directed toward obtaining the witness’s testimony. (Id. at p. 367.) It is not sufficient, for example, simply to find the witness in contempt and send him to jail. (/bid.) The most powerful weapon in trial court’s arsenal for compelling a witness to testify is prosecution for criminal contempt. (People v. Sul, supra, 122 Cal.App.3dat p. 366.) However, pursuant to Code of Civil Procedure section 1291, since Kimberly J. was the victim of a sexual assault, that sanction was not available to the trial judge. However, as noted by defense counsel, other potential penalties were available to the trial court to encourage Kimberly to testify. These included a fine or community service. Oneor the other of these consequences — a loss of money or donation of time — would likely have induced Kimberly to endure the brief amountoftime, inconvenience and possible embarrassmentoftestifying. The other complaining witnesses in this case, whoclaimed to have endured similar mistreatment, had nodifficulty in taking the stand. In this case, the trial court did virtually nothing to try to induce Kimberly to testify. The court simply observed Kimberly’s testimony and demeanor and effectively conceded that she would nottestify and made no effort to encourage or induce her to change her mind. In failing to proactively seek Kimberly’s live testimony, the trial court displayed an indifference and disregard to Villatoro’s fundamental constitutional right to confrontation of the witnesses against him. 14 D. Admission Of Kimberly J.’s Preliminary Hearing Testimony Deprived Villatoro Of His Federal And State Rights To Confrontation The United States Supreme Court has held that the admission of testimonial statements violates the confrontation clause unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. (Crawford v. Washington (2004) 541 U.S. 36, 59 [124 S.Ct. 1354].) In discussing what types of statements qualify as testimonial, the court in Crawford did not precisely define the term; however, it did observe that testimonyat trial, grand jury testimony and preliminary hearing testimony would fall within the category of testimonial statements. (Crawford v. Washington, supra, 541 U.S.at p. 68.) Here, as argued in the prior section, Kimberly J. was not unavailable within the meaning of either Evidence Code section 240 or the confrontation clause because the trial court made noeffort to elicit her testimony and there is a very real prospect that Kimberly would have testified had the trial court used some of the weaponsin its arsenal to influence her. Thus, Kimberly was not unavailable. Further, though Kimberly was subject to cross-examination at the preliminary hearing, the motive and interest of the defense at that time were not the sameas at trial. Under Evidence Code section 1291, evidence of former testimony is admissible where the witness is unavailable and the party against whom the testimony is offered “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing [emphasis added].” In United States v. Salerno (1992) 505 U.S. 317, the United States Supreme Court was called upon to consider the “similar motive” requirement of Fed.R.Evid. Rule 804(b)(1)20 which, like Evidence Code section 1291, requires that the party against whom theprior testimony is being introduced, have “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination”at the prior hearing. In that case, the lower court had held that the “similar motive” 15 requirement did not apply to a government witness whohadtestified before the grand jury under a grant of immunity. The Supreme Court reversed, remanding the case for a hearing to determine “whether the United States had such a motive.” (/d., 505 U.S. at p. 325.) In the presentcase, the motivations for cross-examining Kimberly J. during the preliminary hearing were different than the motivation for such questioning at trial. During the preliminary hearing, a primary interest of the defense is the discovery of information and evidence from the prosecution’s witnesses. Impeaching the witness, particularly the complaining witness, by raising issues ofbias or inattention is not the key consideration since it is a legitimate and well-established defense tactic to preserve challenges to credibility for trial when they will be mosteffective. Here, an examination of Kimberly’s preliminary hearing cross-examination shows that defense counsel asked mainly direct as opposed to leading questions and mainly sought to confirm the facts as Kimberly testified to them on direct examination. (1 CT 23-43, 47-48.) Defense counsel was not primarily interested in impeaching Kimberly or calling into doubthertestimony but instead soughtto simply pin down Kimberly’s testimony so that this original testimony could be used effectively for impeachmentat trial. In sum, the motive at the preliminary hearing was to set the stage for future impeachment not to impeach the witness as would be the plan attrial. In summary, neither of the criteria necessary for testimonial hearsay under Crawford waspresentin this case. Kimberly J. was not unavailable and she was not subject to prior cross-examination of the nature that would have occurred had she testified at trial. Therefore, the admission of Kimberly’s preliminary hearing testimony deprived Villatoro of his constitutional right to the confrontation of witnesses against him. Review should be granted. 16 IV. THIS PETITION SHOULD BE GRANTED TO CONSIDER WHETHER TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCEIN FAILING TO OBJECT TO THE MODIFIED CALCRIM NO. 1191 AND IN FAILING TO OBJECT ON CONFRONTATION GROUNDS TO THE SEXUAL ASSAULT EXAMINER’S HEARSAY TESTIMONY Should this court conclude that trial counsel forfeited the objections to the modified CALCRIM No. 1191 and/or the confrontation violation in the sexual assault examiner’s testimony, it is Villatoro’s alternate position that his attorney provided constitutionally inadequate assistance of counsel in failing to make those objections. “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. The ultimate purpose ofthis right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result. Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [citations omitted].” (People v. Ledesma (1987) 43 Cal.3d 171, 215; accord, In re Cordero, supra, 46 Cal.3d at pp. 179-180.) Specifically, it guarantees to the accused “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” (United States v. De Costar (D.C.Cir. 1973) 487 F.2d 1197, 1202; accord, People v. Pope (1979) 23 Cal.3d 412, 423; see, e.g., Strickland v. Washington, (1984) 466 U.S. 668, 693.) Here, there was no legitimate purpose for trial counsel failing to object to the propensity evidence instruction. Given the prejudicial nature of the instruction and the fact that at least one appellate court has rejected a similar instruction (People v. Quintanilla, supra, 132 Cal.App.4th at p. 572, there could have been notactical reason for trial counselto fail to object. (People v. Nation (1980) 26 Cal.3d 169, 179) Similarly, should this court find the challenge to the instruction forfeited or the confrontation argumentforfeited, the loss of those arguments on appeal wasthe result 17 of counsel’s oversight. The failure to object to errors which result in a waiver of review of such errors may constitute ineffective assistance of counsel. (People v. Scott (1994) 9 Cal.4th 331, 356, fn. 18; People v. Cooper (1991)53 Cal.3d 771, 831; People v. Malone (1988) 47 Cal.3d 1, 33.) Review shouldbe granted. V. _CALCRIM NO.220’S DEFINITION OF REASONABLE DOUBT VIOLATED VILLATORO’S FEDERAL DUE PROCESSRIGHT TO HAVE HIS GUILT DETERMINED BEYOND A REASONABLE DOUBT AND REQUIRES REVIEW The trial court instructed the jury on reasonable doubt using CALCRIM No. 220 from the Judicial Council of California Jury Instructions, approved for use as of January 1, 2006. In material part, the instruction, as given, provided: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and considerall the evidence that was received throughout the entire trial. [emphasis added.]” (2 CT 252.) Thetrial court also gave CALCRIM No. 222, which defines evidence as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” (2 CT 253.) Read together, these instructions, and specifically the highlighted language of CALCRIM No. 220, limited the jury’s determination of reasonable doubt to the evidence received attrial and precluded it from considering the lack of other evidence proving that Villatoro committed the offenses charged. Such missing evidence included no DNA evidence in connection with the Beverly G. offenses, no recovery of the allegedly stolen items and noincriminating statements by Villatoro. “Numerous cases have defined a reasonable doubt as doubt ‘based on reason which arises from the evidence or lack of evidence.’ [Citations.]” (Johnson v. Louisiana (1971) 406 U.S. 356, 360 [92 S.Ct. 1620, 32 L.Ed.2d 152].) As this court has previously recognized, reasonable doubt may arise from a lack of evidencejust as readily as from deficiencies in the evidence presented to the jury. (People v. Simpson 18 (1954) 43 Cal.2d 553, 566; see also People v. McCullough (1979) 100 Cal.App.3d 169, 182.) Given the deficiencies in the prosecution’s evidence,it is reasonably likely that the jury failed to consider the significance of the missing evidence due to the erroneous instruction found in CALCRIM No. 220. Therefore, since there is a reasonable likelihood that the jury convicted Villatoro “on a lesser showing than due process requires” (Victor v. Nebraska (1994) 511 U.S. 1, 22 [114 S.Ct. 1239, 127 L.Ed.2d 583]), this court should grant review. Review should also be granted because another problem with the CALCRIM No. 220reasonable doubt instruction is that it directs jurors to compare the evidence presented in a manner evokingthe civil standard of preponderanceofthe evidence. In effect, the admonition that the jury is required to “impartially compare and consider all the evidence” to determine whether the prosecution has proved its case beyond a reasonable doubt undermines the presumption of innocence and supplants it with a mere civil standard of impartiality. (Coffin v. United States (1895) 156 U.S. 432, 453.) The result was a denial of Villatoro’s due process right to juror consideration of the evidence measured against the reasonable doubt standard. (In re Winship (1970) 397 U.S. 358, 364.) Vi. CALCRIM NO. 220 DEPRIVES DEFENDANTS OF DUE PROCESS BY FAILING TO ADVISE JURORS THAT THE PROSECUTION HAS THE BURDEN OF PROVING “EACH ELEMENT” BEYOND A REASONABLE DOUBT CALCRIM No. 220 also violates due process by failing to specify that the prosecution’s burden is to prove “each element” of the charged offense beyond a reasonable doubt. As worded presently, CALCRIM No. 220 merely directs jurors that “this presumption [of innocence] requires that the People prove a defendant guilty beyond a reasonable doubt.” (2 CT 252.) 19 The Sixth and Fourteenth Amendments guarantee to a criminal defendant “a jury determination that [he] is guilty of every element of the crime with which heis charged, beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 477.) A jury must be instructed properly on the prosecution’s burden of proof beyond a reasonable doubt to ensure the integrity of a criminal conviction. (Estelle v. Williams (1976) 425 U.S. 501, 503.) It is error to give an inadequate instruction on the reasonable doubt burden of proof and the presumption of innocence. (People v. Crawford (1997) 58 Cal-App.4th 815, 824-826.) Because due process requires proof beyond a reasonable doubt, it follows that a trial court “must instruct the jury that, before reaching a guilty verdict on the criminal charge, the prosecution must prove every required element beyond a reasonable doubt.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1401; see also People v. Mayo (2006) 140 Cal.App.4th 535, 547 [jury must “find each and every element of that charge beyond a reasonable doubt’’].) Here, then, the trial court violated long-established United States Supreme Court and California authority when it failed to instruct the jury that it must find each element of the charged offense or special allegation true beyond a reasonable doubt. CALCRIM No.220’s definition of reasonable doubt is insufficient because it allows the jury to take a global view of the meaning of guilt beyond a reasonable doubt, while the Constitution requires the jury to take a particularized approach to each elementprior to finding the definition has been met. In the absence ofan instruction that each and every element must individually be proved beyond a reasonable doubt, this global approach would have been perfectly reasonable andintuitive for a juror to have taken, but it is squarely contrary to what the law permits. That is why the current CALCRIM No. 220 instruction is erroneous. (Contra, People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) The presumption of innocence and the due process clause of the Fourteenth Amendment require that the prosecution prove every element of the crime charged 20 beyond a reasonable doubt. (Sandstrom v. Montana, supra, 442 U.S. at p. 520; In re Winship, supra, 397 U.S.at p. 364; see also Pen. Code, § 1096.) Thus, an instruction that fails to inform the jurors of that obligation is erroneous and unconstitutional. Therefore, review should be granted to consider this alternate challenge to CALCRIM No. 220. Vil. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE USE OF A DEADLY OR DANGEROUS WEAPONFINDING ON THREE OF THE RAPE COUNTSANDAS A RESULT VILLATORO WAS DEPRIVED OF DUE PROCESS A. Introduction The Information alleged that Villatoro used a deadly or dangerous weapon in connection with each of the rape counts charged against him. (1 CT 159.) With respect to three of those rape counts, the dangerous weapon involved wasa stun gun. Under the facts of this case, since the stun gun was not employed to shock or physically harm any of the complaining witnesses, there was insufficient evidence to establish that the stun gun was a dangerous weapon within the meaning of section 667.61, subdivision (e). B. Standard of Review In evaluating the sufficiency of evidence, an appellate court is bound to apply the substantial evidence standard of review. (People v. Johnson (1980) 26 Cal.3d 557.) Under that standard, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.) In evaluating a judgment for insufficiency of the evidence, “‘it is the duty of the reviewing court to declare whether the record contained any substantial evidence to support the verdict.” (People v. Dupre (1968) 262 Cal.App.2d 56, 63). A judgment, which fails to meet this test of evidentiary sufficiency constitutes a denial 21 of due process of law and a violation of an accused’s constitutional rights. (Jackson v. Virginia (1979) 443 U.S. 307, 309 [99 S.Ct. 2781, 61 L.Ed.2d 560].) C. The Evidence Failed To Establish That The Stun Gun Was A Dangerous Weapon Someobjects, such as guns, dirk and blackjacks “have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029; People v. Blake (2004) 117 Cal.App.4th 543, 555.) Other objects, not deadly by nature, may nevertheless be considered dangerous or deadly where, under the circumstances, they are employed in a fashion likely to cause death or great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1029.) In the case of objects or devices that are not inherently deadly or dangerous, “the trier of fact may consider the nature of the object, the manner in which it was used, and all other facts relevant to the issue” in determining whether the item is deadly or dangerous.” (People v. Aguilar, supra, 16 Cal.4th at p. 1029; People v. Blake, supra, 117 Cal.App.4th at p. 555.) In the present case, the “deadly or dangerous weapon”at issue in three ofthe rape counts was a stun gun. (3 RT 928; 4 RT 1509-1510; 5 RT 1883.) John Wong (“Wong”), a sergeant with the Los Angeles Police Department, testified that a stun gun is a high voltage, low amperage device that is capable of discharging currents into a person’s body, resulting in involuntary muscle contractions, loss of body control, pain, fatigue, disorientation and loss of balance. (6 RT 2220-2222.) In describing the potential injuries to a person shocked by a stun gun, Wongstated that a person could potentially be blinded by electrical current near his eyes. Fainting, seizure and heart attack were also potential consequences of being tased or stunned. Contact between the skin and a stun gun can alsoresult in burns, scarring, infection, the risk of central nervous system injury and soft tissue damage. (6 RT 2224.) In response to Wong’s testimony, the defense presented Larry Smith (“Smith”), an expert witnessin the use of force, police misconduct andtasers. (6 RT 22 2468.) According to Smith, when a taser is used to stun without probes being released to attach to the skin,this is called a “drive stun.” (6 RT 2480-2481.) A drive stun does not cause serious injuries but may leave a burn mark whenthe stun gun makesdirect contact with the skin. (6 RT 2481.) In researching stun gunsandtasers, Smith did not see reports of any grave or serious bodily injuries or death attributable to the deployment of a drive stun or the use of a stun gun. (6 RT 2482.) In preparing to testify, Smith studied the Storm stun device used by Villatoro and read the product materials put out by the manufacturer. (6 RT 2484-2485.) According to the manufacturer, touching an assailant will cause minor muscle spasm and a dazed mental state. These affects are temporary, and the Storm stun will not cause permanentinjury. (6 RT 2486.) Smith told the jury that permanentinjury does not occur because the device’s batteries do not last long enough. (6 RT 2486-2487.) Smith conceded that injury would occur if the probe made contact with the eye; however, discharging the device on the cheek would not cause blindness. Also, applying the stun gun to the chest would not cause a heart attack. (6 RT 2489.) On cross-examination, Smith admitted that he would not stun himself on his temple, his neck or his genitals or near gasoline or electronic equipment or multiple times over a prolonged period because each of those things could cause serious injury. (7 RT 2740.) In this case, the circumstances under which the stun gun was used show thatit was not employed as a deadly or dangerous weapon. Villatoro merely displayed the stun gun, and sparked it to frighten the women, but he did not use it to stun any of them. (3 RT 928; 4 RT 1509-1510, 1512; 5 RT 1883, 1889.) Though heplaced the stun gun near Chaslyn’s throat and discharged it, he did not touch her or shock her with it. (3 RT 928.) Similarly, though Villatoro pulled out a stun gun andplacedit against Beverly’s neck, he did not shock her with it or use it in any way to cause her injury. (4 RT 1509-1510.) 23 Under the circumstances of the present case, the mere display of the stun gun and sparking it to frighten the complaining witnesses fails to establish that the stun gun is a dangerous weapon. Therefore, review should be granted to reverse the judgment for insufficient evidence in violation of Villatoro’s federal due process rights. Vill. REVIEW SHOULD BE GRANTED TO CONSIDER WHETHER ADMISSION OF TESTIMONY CONCERNING SEXUAL ASSAULT EXAMINATIONS PERFORMEDBY NON-TESTIFYING EXAMINERS VIOLATED VILLATORO’S RIGHT TO CONFRONTATION A. Proceedings Below The prosecution called Sandra Wilson, (“Wilson”), a sexual assault nurse examiner, to testify concerning sexual assault examinations performed on four of the five complaining witnesses. (6 RT 2117-2118.) Wilson performed sexual assault examinations on Natiesha G. and Kimberly J. (6 RT 2124-2125, 2129.) Wilson did not perform the examinations on Chaslyn C. or Rowenna I. These examinations were performed by another sexual assault examiner. (6 RT 2135-2140.) Nevertheless, Wilson was allowed to testify concerning the results of the examinations conducted by the non-testifying examiner. Given that Wilson was not the person who conducted the sexual assault examinations on Chaslyn and Rowenna,the admission of the examination results and opinions violated Villatoro’s right to confront the witnesses against him asset forth in Melendez-Diaz v. Massachusetts (2009) __—-U.S.__ [129 S.Ct. 2527] and Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354]. This is so because Villatoro was unable to cross examine the person or persons whoactually conducted these sexual assault examinations. 24 B. The Confrontation Objection Was Not Forfeited Though the Court of Appeal addressed the merits of Villatoro’s confrontation argument, it preliminarily held that the issue had been forfeited by the failure to object at trial. (Opn., p. 20.) This was incorrect because the law was so unsettled at the time that reasonable minds could differ as to the appropriateness of an objection. In such circumstances, the failure to object is excused. (Un re Gladys R. (1970) 1 Cal.3d 855, 861; People v. Simms (1970) 10 Cal.App.3d 299, 310.) In this case, Villatoro’s trial occurred in November 2009, just five months following the United States Supreme Court’s decision in Melendez-Diaz and two years after the California Supreme Court’s decision in Geier. Given the decision in Geier and the fact that it remains unclear whether Melendez-Diaz conflicts with or supersedes that decision, trial counsel reasonably could have concluded that it would have been futile to object under the law in effect at the time of trial. (See, e.g., O'Connor v. Ohio (1966) 385 U.S. 92, 93 [87 S.Ct. 252, 17 L.Ed.2d 189] [failure to object in the state courts . . . to a practice which Ohio had long allowed cannot strip him ofhis right to attack the practice following its invalidation by this Court]; People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5 [citing other cases in which no objection wasrequired dueto futility].) Therefore, the failure to object in this case should not be deemeda forfeiture. C. Crawford v. Washington And Melendez-Diaz v. Massachusetts In Crawford v. Washington, supra, 541 U.S. at p. 36, the Supreme Court reaffirmed the fundamental role of cross-examination as the constitutionally required test for the reliability of testimony in our criminal justice system. The Crawford court held that testimonial statements of absent witnesses may only be admitted at trial where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine. (Jd. at p. 59.) This is so because the confrontation clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” (/d. at p. 61.) In 25 addressing the confrontation clause issue in Crawford, the Supreme Court specifically referred to “testimonial statements” but it pointedly postponed a decision precisely defining the term. (Crawford v. Washington, supra, 541 U.S at p. 68.) Instead, the court gave several examples of statements which would qualify as testimonial. These include testimony at a preliminary hearing, grand jury testimony or testimony at a priortrial, as well as police interrogations. (/bid.) In Melendez-Diaz v. Massachusetts, supra, ___ U.S. atp.__—«[129 S.Ct. at p. 2527], the Supreme Court — by a 5 to 4 vote — held that a drug analyst’s affidavit discussing the nature of the substance tested and its weight was a testimonial statement for purposes of the Sixth Amendment, and as such, absent a showing of unavailability and a prior opportunity for cross-examination, the defendant was entitled to confront the analyst at trial. The majority found this to be a “rather straightforward application” of Crawford v. Washington, supra, 541 U.S.at p. 36. In reaching this conclusion, the Supreme Court noted that “[t]here is little doubt that the 999 documents at issue fall within the ‘core class of testimonial statements’” described in Crawford. Thecertificates were testimonial because they were preparedspecifically for use at the defendant’s trial. They did not qualify under the business records exception because they were created for the purpose of establishing or proving something attrial, not for the administration of an entity’s affairs. D. People v. Geier This court addressed the confrontation issue in the context of DNA reports in People v. Geier (2007) 41 Cal.4th 555. There, the court held that a DNA test report was not testimonial within the meaning of Crawford and Davis because the accusatory opinion comes through the testimony of the expert whotestifies regarding the test results. (People v. Geier, supra, 41 Cal.4th at p. 607.) In People v. Gutierrez, 8176620, review granted Dec. 2, 2009, this court has pending before it the issues of whether a defendant’s right to confrontation is denied when onenurse practitionertestifies to the results of a sexual assault examination and 26 the report prepared by another and the affect of the decision in Melendez-Diaz v. Massachusetts, supra, ___- US. at p. ___ [129 S.Ct. at p. 2527] on the court’s decision in People v. Geier, supra, 41 Cal.4th at p. 555. Related confrontation issues are also pending in the following cases: People v. Rutterschmidt, rev. granted Dec. 2, 2009 (S176213); People v. Lopez, rev. granted Dec. 2, 2009 (S177046) and People v. Dungo,rev. granted Dec. 2, 2009 (S176886). REQUEST TO GRANT AND HOLD Since this case is very muchlike the cases presently pending before this court, petitioner requests that this court grant his petition and hold the matter until this court articulates whether a criminal defendant’s right of confrontation under the Sixth Amendment is denied when one nurse practitioner testifies to the results of a sexual assault examination and the report of another nurse practitioner. (People v. Gutierrez, S$176620, review granted Dec. 2, 2009.) CONCLUSION For the reasons set forth herein, it is respectfully requested that review be granted in this case. Dated: Respectfully submitted, Edward J. Haggerty Attorney for Appellant 27 CERTIFICATE OF COMPLIANCE In compliance with rule 8.504(d)(1) of the California Rules of Court, I certify that the word count generated by Microsoft Word 2003 for the foregoing petition is 8,345. Dated: Respectfully submitted, Edward J. Haggerty Attorney for Appellant 28 APPENDIX A OPINION OF THE COURT OF APPEAL 29 30 Filed 4/12/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION EIGHT THE PEOPLE, B222214 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA339453) v. JUAN JOSE VILLATORO, Defendant and Appellant. APPEALfrom a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G.Brown,Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M.Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent. Juan Jose Villatoro appeals from the judgment entered after a jury convicted him of various counts of kidnapping, robbery, rape, and other sex crimes he committed against five women over a three-year period. Werejecthis claims of instructional and evidentiary error, and also concludethat his use of a stun gun to commit someofthe crimes wassufficient evidence that he used a deadly or dangerous weapon. Wetherefore affirm the judgment. FACTS AND PROCEDURAL HISTORY Five women accusedJuan Jose Villatoro of kidnap, robbery, rape, and other forcible sex crimes. RI. RI. was a prostitute who got into Villatoro’s Honda Civic at around 3:00 a.m. on May 25, 2005,after agreeing to have sex with him for $80. After driving to a nearbyresidential area, Villatoro stopped the car, pulled out a gun, and told R.I. he wouldkill her if she moved. Villatoro forced her to have vaginal and anal intercourse, then whipped her on the back for about 20 minutes with someelectrical extension cords. Villatoro took R.I.’s cell phone, and then told her to get out of the car. He did not pay her. Later that morning, a Los Angelespolice officer was called to Centinela Hospital to conduct a rape investigation. When he arrived, R.I. was being treated for injuries to her back. Shetold the officer what had happened. A nurse conducted a rape exam of R.I. She had numerousbruises on her back, along with bruising on her vagina, and swelling in her legs. These wounds were consistent with R.I.’s account of the attack. DNA samples taken from R.I. were later found to match Villatoro’s DNA. About two monthsafter the incident, R.I. identified Villatoro from a photographic six-pack lineup. NG. Between midnight and 1:00 a.m. on June 21, 2006, 18-year-old N.G. was walking home when Villatoro drove up in a white Honda, pointed a gunat her, and said he would kill her unless she got into his car. N.G. got in the car, and Villatoro drove off. He held a razor to N.G.’s ribcage as he drove. Villatoro stopped the carin a residential area, then had vaginal intercourse with N.G. and inserted his fingers inside her vagina. Villatoro took N.G.’s cellphone, rings, and sunglasses, and thenlet her go. N.G.ran for help and the police were called. When Los Angeles Police Officer Alonzo Howellarrived at the location, N.G. was crying and screamed that she had been raped. Nurse Sally Wilson performed a rape exam. Wilsonsaid that N.G.’s body bore marks that confirmed her story. DNA swabstaken from N.G. were later determined to match Villatoro’s DNA. Almost twoyears later, N.G. identified Villatoro from a photographic six-pack lineup. N.G.testified that she becamea prostitute a few months after she was raped, but denied that she was working as a prostitute when Villatoro approached her. Beverly G. At around 2:30 a.m. on February 3, 2008, after some unsuccessful haggling by Villatoro, prostitute Beverly G. agreed to have sex with Villatoro for $100. She got into Villatoro’s car, which she first described as a burgundy colored Stratus, but later recalled was a DodgeIntrepid. Villatoro stopped the car in a residential area after driving a short distance, and then pulled out a stun gun. Villatoro activated the device so that it began to spark at the delivery end, and told Beverly not to move. He put the stun gun against Beverly’s neck and screamedat her, “Don’t look at me.” He had both vaginal and anal intercourse with her. Whenever Beverly would look at Villatoro, he slapped her or spat ather. WhenVillatoro was done,he told Beverly to get out of the car. He did not pay her. Beverly phoned her boyfriend for help. The boyfriend took her to a hospital, but she lied to the police about what happened because she had outstanding warrants for prostitution. No rape exam wasperformed,and therefore there was no DNAtotest. Beverly eventually told the police what happened, and in May 2008, she identified Villatoro from a photo lineup. In early 2009, Beverly found internet photos of Villatoro that caused her to rememberthat Villatoro had raped her once before, in 2007. During that rape, Villatoro carried pepper spray. She did not make the connection before then becausethe lineup photo andthe internet photo differed and because Villatoro used different cars during each incident. Beverly did not report the 2007 rape whenit occurred because of warrants that were out for herarrest. C.C. At around 2:45 a.m. on February 10, 2008, Villatoro offered a ride to C.C., who waswaiting at a bus stop. Because another man had been harassingher, C.C. accepted and gotinto Villatoro’s burgundy Intrepid. C.C. asked Villatoro to drive her to Hollywood. Whenshenoticed they were in Santa Monica, she became nervous. She asked Villatoro to stop so she could use a restroom. Villatoro pulled the car over, handed C.C. some baby wipes,andtold her to relieve herself in the grass. Villatoro watchedasshe did so. WhenVillatoro promised to take her home, C.C. got back inside the car. Villatoro then pulled out a stun gun, triggered a spark from the delivery end ofthe weapon,andplacedit near C.C.’s throat. He told C.C. to take off her pants, and she complied. Hetold her not to look at him, punched herin the face, and ordered her to cover her head with hershirt. Villatoro had vaginal intercourse with C.C., and also bit herleft breast and nipple and pulled out someofherhair. Villatoro told her to get out of the car. She did so, and then ran to get help. Santa Monica Police Officer Michael Chunarrived, and saw that C.C. wascrying. She told Chun what Villatoro had done to her. C.C. was given a rape exam. The nurse who performed the exam found a bite mark and a suction injury on C.C.’s left breast. The physical findings were consistent with C.C.’s account of the incident. DNA samples taken from C.C.’s body were later found to match Villatoro’s DNA. C.C. helped the police create a composite drawingof her attacker, and in April 2008 identified Villatoro from a photo lineup. C.C. admitted that she worked as a prostitute a few years before the incident, but denied that she was doing so when she encountered Villatoro. Kimberly J. At around 3:00 a.m. on April 4, 2008, prostitute Kimberly J. agreed to get into Villatoro’s car, which she described as burgundy Dodge. Theydrovefor a few blocks, when Villatoro stopped the car on a dark street, told her, “Shut up or I’m goingto kill you,” and pulled out a stun gun. Villatoro turned the stun gun on and off a few timesin order to scare Kimberly. He told her to turn around and to not look at him. He ripped off Kimberly’s underwear and had vaginal intercourse with her. During the rape, he again told her to not look at him. When Villatoro finished, he took Kimberly’s cell phone and jewelery andtold her to get out of the car. Hetried to place the stun gun against her, but she jumped out before he could do so. Kimberly ran for help and eventually located friends who took her to a Los Angeles police station to report the rape. Kimberly wastaken to a hospital for a rape examination, which was performedby Sally Wilson, the nurse whodid the rape test on N.G. Wilson saw vaginal bruising, and the hymen had an abrasion and appeared to be tender. These findings were consistent with Kimberly’s account. DNA samples were taken andlater testing showed that these samples also matched Villatoro’s DNA. Kimberly helped the police prepare a composite drawingof her attacker, and she too identified Villatoro from a photo lineup.! A. Additional Prosecution Evidence A crimealert bulletin was issued to police officers that included a description of the man whoattackedall five women,and his burgundy Dodge Intrepid. On April 19, 2008, a Los Angeles police officer spotted a burgundy Intrepid that matched the description. Because the windowshadanillegaltint, the officer stopped the car. Villatoro wasthe driver. The officer saw that Villatoro matched the description of the rapist given in the bulletin, as well as the composite drawings. Villatoro produced a California identification card with the name Juan Estrada Villalobos. After learning that there was a felony arrest warrant out for someone with that name, the officer arrested Villatoro and ascertainedhis real name. A later search of Villatoro’s car turned up a box of baby wipes, a condom,a bottle of perfume, three bracelets, an earring, a box cutter, and one acrylic fingernail. The police later searched the laundromat where Villatoro once worked. They spoke with employee Michael Cross, who said that when Villatoro wasstill working at the laundromat, he noticedthat Villatoro had a stun gun. Villatoro offered to buy one of the same modelfor Cross for $40, and a few dayslater did so. The police seized the stun gun from Cross. Printed on the side was the 1 Kimberly’s story came into evidence by wayofher testimonyat Villatoro’s preliminary hearingafter the trial court found that her refusalto testify at trial made her unavailable as a witness. The admissibility of her testimonyis at issue on appeal, and we discussit below. following: “Storm Stun, the world’s smallest stun gun, warning, extremely dangerous, keep out of reach of children.” John Wong, a Los Angeles police detective assigned to the case,testified about stun guns, which he said produce an electrical charge. When applied to a person’s body, a stun gun causespain, involuntary muscle contractions, loss of body control, disorientation, loss of balance, and extremefatigue. Police officers are trained to avoid using a stun gun nearthe face, neck, eyes, chest, or breasts. The weapon can cause heart attacks, burns, scarring, and central nervous system injuries. The stun gun obtained from Crossstates that it put out 950,000 volts, while taser guns used by Los Angelespolice officers put out only 50,000 volts. B. Defense Evidence Defense expert witness Larry Smith testified that, based upon his own research, the use of a stun gun of the type recovered in the case had not caused serious injury or death. He also reached the conclusion that the device could not cause any permanent harm after reading the literature in the field. Smith acknowledged that certain types of contact with a taser could cause various forms of physical reaction including pain. Healso stated that he personally had a painful experience with a taser that left a burn mark for a week. He would not stun himself on certain areas of the body or under certain conditions for fear of serious injury. C. Verdict and Sentence A jury convicted Villatoro of five counts of rape, one each asto thefive victims. He was also convicted of: one count of kidnapping to commit another crime as to N.G; and four counts of robbery, one each as to N.G., Beverly G., C.C., and Kimberly J. The jury foundtrue allegations that Villatoro: (1) personally used a firearm during the rapes of R.I., N.G., and during the kidnap and robbery of N.G.; and (2) personally used a deadly or dangerous weaponasto all five rapes and asto the robberies of C.C. and Kimberly J.2- The jury acquitted Villatoro of one count of sodomybyforce against Beverly G., and of one count of rape as to Beverly G.in connection with her claim that Villatoro had previously raped her in 2007. Villatoro received a combined prison sentence of 153 years to life. Onappeal, Villatoro contends: (1) a modified version of CALCRIM instruction No. 1191 improperly allowed the jury to use evidenceofhis guilt of one of the charged offenses as evidence of his propensity to committhe other charged offenses; (2) the CALCRIM No.1191 instruction violatedhis constitutional rights becauseit misinstructed the jury on the burden ofproof, (3) the propensity inference instruction violated his constitutional due process and equalprotection rights; (4) the testimony of an expert witness about rape exams performed by otherpersonsviolated his constitutional right to confront and cross examine adverse witnesses; (5) the court erred by finding one of his accusers was unavailable to testify, thereby allowing in evidence her preliminary hearing testimony; (6) investigating police officers should not have been allowedto give hearsay evidence of statements made by someofhis accusers; (7) the reasonable doubtinstruction given to the jury was defective; and (8) there was no evidence that the stun gun he used on twoof his victims was a deadly or dangerous weapon for purposes of a sentence enhancement. 2 Other allegations were charged and foundtrue, but they are not relevant to the issues on appeal. DISCUSSION 1. The Modified CALCRIMNo. 1191 Instruction on the Use ofPropensity Evidence Was Proper A. Background Concerning Propensity Instructions Asa generalrule, evidence of a person’s character or charactertrait is not admissible to prove that person’s conduct on a specified occasion except when offered as impeachmentevidence, or to show some fact such as motive,intent, plan, or identity. The evidence may not be admitted to show the person’s disposition to commit a criminalact or civil wrong. (Evid. Code, §§ 1100, 1101, subds. (a)-(c); People v. Wilson (2008) 166 Cal.App.4th 1034, 1046 (Wilson).)° There is an exception to this rule in sex crime cases (§ 1108) and domestic violence cases (§ 1109). When a defendantis ontrial for sex crimes, evidence of his “commission of another sexual offense or offenses” is admissible to show his propensity to commit the crimes for which he is now charged, subject to thetrial court’s determination whether the evidence is unduly prejudicial pursuant to section 352. (§ 1108; People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).) Nearly every reported decision interpreting section 1108 describesthat provision as permitting, when proper, evidence of a defendant’s uncharged sexual offenses. This principle is explained to juries by pattern instruction CALCRIM No. 1191, which provides: “The People presented evidence that the defendant committed the crimes ___ that were not charged in this case. These crimes are defined for you in these instructions. [§] You may considerthis evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance ofthe evidenceis a different burden of proof 3 All further undesignated section references in this section of our discussion are to the Evidence Code. from proof beyond a reasonable doubt. A fact is proved by a preponderanceofthe evidence if you concludethat it is morelikely than notthat the fact is true. [{] If the People have not met this burden of proof, you must disregard this evidence entirely. [§] If you decide that the defendant committed the uncharged offenses, you may,but are not required to, conclude from that evidence that the defendant wasdisposedor inclined to commit sexual offenses, and based on that decision, also conclude that the defendant waslikely to commit and did commit as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendantis guilty of < insert charged sex offense[s|>. The People muststill prove each element of the charge beyond a reasonable doubt. [{] [Do not consider this evidence for any other purpose [exceptfor the limited purpose of__|.|” Even though uncharged sex offenses may be proven by a preponderance of the evidence, section 1108 and CALCRIM No. 1191 (andits predecessor) have repeatedly been held to be both constitutional and correct statements of the law. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016; People v. Cromp (2007) 153 Cal.App.4th 476, 480; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185.) Tworeported decisions havesplit on the issue whether a jury can be instructed that it may draw the inference of propensity to commit a charged offense from its finding that the defendant committed another of the crimes with which he was charged. The court in People v. Quintanilla (2005) 132 Cal.App.4th 572 (Quintanilla), held that the instruction applied to only uncharged offenses. The court in Wilson, supra, 166 Cal.App.4th 1034, approved an instruction under section 1108 that was based on other charged offenses.* 4 Wediscuss these decisions in more detail below. 10 Relying on the holding in Wilson, the trial court in this case gave the jury a modified version CALCRIM No.1191 that told the jury it could consider evidence of a charged offense for determining Villatoro’s propensity to commit the other charged crimes. However, unlike the unmodified version of CALCRIM No.1191, the modified instruction told the jury that the prosecution had to proveall the offenses for all purposes under the beyond-a-reasonable-doubt standard: “If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that [decision] also conclude that the defendant waslikely to and did commit the other offenses of rape and sodomycharged. [] If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendantis guilty of another charged offense. The People muststill prove each element of every charge beyonda reasonable doubt and [must] prove it beyond a reasonable doubt before you mayconsider one charge as proof of another charge.” Relying primarily on Quintanilla, supra, 132 Cal.App.4th 572, Villatoro contends the modified CALCRIM No. 1191 instruction was improper because: (1) Section 1108 contemplates that evidence of only uncharged offensesis admissible, subject to a section 352 analysis, and no such analysis occurred here; 5 This is the version of the instruction that was read to the jury. Thelast sentence of the written version of the instruction, which was includedin the clerk’s transcript, states: “The People muststill prove each element of every charge beyond a reasonable doubt and must prove it beyond a reasonable doubt before you may consider one charge as proof of specific intent of another charge.” The written version’s apparentlimitation of the other charged offense evidence to proof of Villatoro’s specific intent was not argued to the jury by the prosecutor, and wetherefore disregard it when evaluating the instruction. 1] (2) no standard of proof wasgivenfor the jury’s consideration of a charged offense that it mightlater use as evidence of his propensity to commit the other charged offenses; and (3) the instruction did nottell the jury that despite the inferencesit could draw from its finding that a charged offense occurred, Villatoro still retained his presumption of innocence. Asa result, he contends, his constitutional due process andequal protection rights were violated.® B. The Quintanilla Decision Quintanilla involved a domestic violence case and the admissibility of evidence of other domestic violence incidents by the defendant pursuantto section 1109. That section is substantially similar to section 1108, and performs the same purpose in domestic violencetrials. (Wilson, supra, 166 Cal.App.4th at pp. 1046- 1047.) The trial court in Quintanilla approved an instruction that told the jury it could consider evidence of charged domestic violence incidents to determine the defendant’s propensity to commit the other charged offenses. Although the instruction told the jury that the prosecution had to prove each charged offense beyond a reasonable doubt,it also said that for purposes of drawing the propensity inference, the prosecution’s burden of proof was the preponderance of the evidence standard. The Quintanilla court held that the instruction was improper because: (1) section 1109 contemplated that the trial court would weigh the other crimes evidence to determine whether it was unduly prejudicial under section 352, an analysis that would never comeinto play with charged offenses; and (2) the instruction was confusing because it required the jury to engage in mental 6 Respondentcontendsthat any claim ofinstructional error was waived because Villatoro never objected to the instruction. Because Villatoro claimsthat his trial counsel’s failure to object amountedto ineffective assistance of counsel, we will reach the issue on its merits in order to forestall a habeas corpuspetition on that ground. (People v. Thurman (2007) 157 Cal.App.4th 36, 43, fn. 5.) 12 gymnastics by first evaluating a charged offense under the preponderance-of-the- evidence standard for purposes of drawing the propensity inference, and then evaluate it under the beyond-a-reasonable-doubt standard before convicting the defendantof that offense. (Quintanilla, supra, 132 Cal.App.4th at pp. 579-582.)7 C. The Wilson Decision The jury in Wilson, supra, 166 Cal.App.4th 1034, was given a modified version of CALCRIM No.1191 that was substantially identical to the instruction given here, with two exceptions: It told the jury it could, but did not haveto, consider the evidence of other charged crimes to determine that the defendant was likely to “and did have the requisite specific intentfor other charged offenses,” and concludedbytelling the jury to consider the evidence for only “the limited purpose of determining the specific intent of the defendant in certain charged offenses.” (/d. at p. 1045, italics added.) The Wilson court believed Quintanilla was incorrect because: (1) section 1108 does not distinguish between charged and uncharged offenses, and refers merely to evidence of other sex offenses; (2) in cases involving multiple victims, allowing the jury to consider the propensity evidence in this way servesthe legislative purpose of section 1108, which was to overcomethe difficulties in proving sex offense cases because they usually occur in private and often come downto credibility contests between the victim and the accused; (3) the policy considerations that usually militate against propensity evidence are not implicated where multiple offenses are charged in the same case, due to the fact that the defendant does not face an unfair burden of mini-trials to defend against the uncharged offenses; and (4) the defendant does not face the burden of 7 The United States Supreme Court granted certiorari for People v. Quintanilla, sub nom. Quintanilla v. California (2007) 549 U.S. 1191. Judgment was vacated and the case was remanded to the Court of Appeal for further consideration in light of Cunningham v. California (2007) 549 U.S. 270. On remand, the Court of Appeal filed an unpublished opinion on July 31, 2007. 13 undueprejudice from the admission of other offenses because he is already required to defendagainst all of the charges. (Wilson, supra, 166 Cal.App.4that pp. 1047, 1052.) However, even though the Wilson court was not persuaded that Quintanilla wascorrectly decided,it chose not to answerthat “broader question” because the instruction at issue in Wilson wassubstantially narrower, and therefore distinguishable, from the instruction given in Quintanilla. These differences were: (1) instead of the preponderanceof the evidence standard given in Quintanilla, the jury in Wilson wastold thatit had to determine the truth ofall the charges, for all purposes, under the beyond-a-reasonable-doubtstandard, thereby posing no risk the jury would be confused or misled; (2) as approved in Reliford, supra, 29 Cal.4th at p. 1013, the jury was told that it could, but was not required to, make the inference authorized by section 1108; (3) the jury was instructed that the inference by itself was not enoughto find the defendant guilty of the other charged offenses; (4) the instruction limited use of the inference to proof that the defendant had thespecific intent to commit a charged offense; and (5) before giving the modified instruction,the court weighed the evidence undersection 352 before deciding to let the jury considerit as circumstantial evidence to prove one or more of the other charged offenses. (Wilson, supra, 166 Cal.App.4th at pp. 1052-1053.) D. The Modified Propensity Instruction Was Proper Although Villatoro does not expressly say so, we believe he contends the instruction in Wilson wasproper,if at all, because it allowed the jury in that case to use evidence of some charged offenses only to determine the defendant’s specific intent when committing other charged offenses, as permitted by section 1101. Asa result, section 1108 was no longer relevant because the evidence was properly admitted for another purpose under section 1101. Becausethe instruction given in the present case allowedthe jury to use the evidencenotjust to establish 14 defendant’s intent but also on the propensity issue, Villatoro contends Wilson is inapplicable. As we now discuss, section 1108 authorized the modified CALCRIM No. 1191 given here even though theinstruction did not limit the other crimes evidenceto the issue of intent and instead permitted the jury to draw an inference of guilt as to other charged countsif it found defendant guilty of a related charged offense. Webegin by noting, as mentionedearlier, that the unmodified version of CALCRIM No. 1191, and its predecessor, CALJIC No. 2.50.01, have repeatedly been held to be both constitutional and correct statements of the law. Therefore, to the extent the modified instruction given in this case mirrors or overlaps CALCRIM No. 1191, we hold that it was proper. Weagree with nearly all of Wilson’s dicta concerning the propriety of using charged offenses to prove the defendant’s propensity to commit other charged offenses. As the Wilson court noted, section 1108 never mentions uncharged offenses. Instead, it says that evidence of “another sexual offense or offenses”is admissible in sex offense cases. In a case with multiple victims of multiple sex offenses, allowing the jury to use a charged offense thatit first found true beyond a reasonable doubt as evidence on the propensity issue furthers the legislative purposeof section 1108 because it eases the victim’s burden of waging a credibility contest with the accuser. And because Villatoro had to defendall the charges anyway, he faced no additional burden by having to engagein mini-trials, as often occurs when evidence of uncharged offenses is admitted. Finally, as in Wilson, the instruction given here clearly required the prosecution to prove each offense beyond a reasonable doubt, even those that the jury might later use as propensity evidence. Despite Villatoro’s contentions to the contrary, there was 15 nothing confusing or misleading about the instruction on the burdenofproofor anything else.8 Noris his contention that the jury was somehow misled on the presumption of innocence well taken. Jury instructions must be read as a whole when evaluating them for error. (People v. Smith (2008) 168 Cal.App.4th 7, 13.) The test is whether there is a reasonablelikelihood that the jury understood the instruction in a mannerthat violated the defendant’s rights. We assumethat jurors are intelligent and capable of understanding andcorrelating all the instructions they were given. (/bid.) The modified version of CALCRIM No. 1191 given here told the jury the prosecution bore its burden of proof beyond a reasonable doubt. Elsewhere, the jury wasinstructed with CALCRIM No.220 on the meaning of that standard of proof, including the admonition that the defendant is presumed innocent, and that only proof beyond a reasonable doubt could overcomethat presumption. A reasonable juror wouldread theseinstructions together and concludethat Villatoro was presumed innocent, even when applying CALCRIM No.1191. Where wepart company with Wilsonis its assumption that a section 352 analysis was not required because evidenceofthe other charges would be allowed in any event. Just because evidence concerning the other charged offenses will necessarily be allowedat trial does not, however, automatically justify an instruction allowing the jury to use that evidence to draw an inference that the defendant had the propensity to commit any of the other charged offenses. Westart our analysis with a brief review of how section 352 generally operates in the context of propensity evidence. One ofthe factors affecting the 8 Thus,the instruction actually benefits defendants because, unlike the use of uncharged offenses, which may be proved by a preponderanceofthe evidence, the jury is clearly told that all offenses must be proven beyond a reasonable doubt, even for purposes of drawing the propensity inference. Villatoro’s trial counsel admitted as much whenthe instruction was discussed. 16 probative value of an uncharged sex offenseis its similarity to the charged offenses. Other factors to be considered in weighing the probative value/prejudicial effect of an uncharged act include the degree by which the evidence of the uncharged act is independentof the charged offense, the amount of time between thoseacts, the nature and relevance of the unchargedacts, the degree of certainty of its commission (including any resulting conviction), the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some butnot all of the defendant's other sex offenses, or excluding inflammatory details surrounding the offense. (See Falsetta, supra, 21 Cal.4th at p. 917; People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) Althoughthe appellate discussion of the competing probative and prejudicial factors has usually arisen in the context of the admissibility of uncharged offenses, we believe that the analysis has relevance whenthetrial court determines whetherthe jury is permitted to use evidence of one charged offense on the defendant’s propensity to commit another charged offense. Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote and unconnectedto each other, that the trial court could apply the criteria of section 352 and determinethatit is not proper for the jury to consider one or more of the charged offenses as evidence that the defendantlikely committed any of the other charged offenses. In those situations a modified CALCRIM No. 1191 instruction should not be given, or it may be appropriate to give only a modified version of CALCRIM 375(evidence of uncharged offense to prove identity, intent, commonplan,etc.). (See Quintanilla, supra, 123 Cal.App.4th at p. 586 (conc. opn. by Pollak, J.).) And even where multiple sex offenses are charged that pass muster under section 352, in some cases those charges might also be joined with unrelated or 17 tangentially related offenses that do not. In short, before the jury can be instructed that its finding of guilt on a charged offense allowsit to draw the propensity inference as to other charged offenses,the relationship between those offenses mustbe sufficient to justify drawing that inference. Villatoro contendsthat the trial court’s failure to conduct a section 352 analysis is yet anotherflaw in the instruction. The record doesnot include an express statementby thetrial court that it undertook that analysis in deciding to give CALCRIM No.1191. However, even though the record mustaffirmatively showthat the trial court undertook the section 352 analysis, an express statement that it did so is not required. Instead, we may infer an implicit weighing by the trial court on the basis of record indications such as arguments by counsel or commentsby the trial court that touch on the issues of prejudice and probative value. (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another point in People v Hill (1998) 17 Cal.4th 800,823, fn. 1.) Whenthetrial court discussed the modified version of CALCRIM No. 1191, it said the instruction was based on Wilson, supra, 166 Cal.App.4th 1034. As noted, the instruction given closely tracks the instruction approved by the Wilson court. A critical distinction that allowed the Wilson court to approve the instruction was the section 352 analysis conducted bythe trial court in that case. (/d. at p. 1053.) Thetrial court’s express reliance on a keycase in this area, consideredin light of the entire record, allowsus to infer that the trial court gave the instruction because it found that all the requirements of the holding in Wilson, including a section 352 analysis, had been satisfied. Wealternatively hold that even if the trial court did not conducta section 352 analysis, such analysis would have necessarily resulted in the admission of the evidence for the propensity inference. Thus any error was harmless. Although the five victims’ accounts of what happened had minordifferences, they were strikingly similar in several critical respects. Each victim was lured orforced into Villatoro’s car, then driven to a darkened residential area where they were forced 18 to submit to sex acts at the point of various weapons. At the end of each incident, he told the victim to get out of his car. Villatoro’s DNA wasfound on the four victims who were tested, and none of the victims knew each other. Therefore, the evidence washighly probative of Villatoro’s propensity to commit such crimes, and instructing the jury that it could use that evidence for that purpose without an express ruling under section 352 wasnot prejudicial. (Padilla, supra, 11 Cal.4th at p. 925.) Wealso observe that Villatoro did not raise a section 352 objection with the trial court. (Brown v. Smith (1997) 55 Cal.App.4th 767, 791 [section 352 analysis required when objection is made].) Nor does he make any argument on appeal, by - wayofeither analysis or citation to applicable authorities, concerning why the charged offenses were not admissible undersection 352 for purposes of section 1108. (People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5.) Accordingly, Villatoro has waivedthe issue.? Finally, Villatoro contends CALCRIM No. 1191 was improperbecauseit told the jury it could “conclude” he was guilty under the propensity inference, instead of using the term “infer.” An inference is a deduction of fact that may logically and reasonably be drawn from anotherfact or group of facts found or otherwise established in the action. (§ 600, subd. (b).) It is “a conclusion as to the existence of a material fact that a jury may properly draw from the existence of certain primary facts.” (Blank v. Coffin (1942) 20 Cal.2d 457, 460; Groverv. Sharp & Fellows Contracting Co. (1944) 66 Cal.App.2d 736, 742.) Accordingly, the two terms are interchangeable in this context, and we therefore reject this contention. 9 See footnote 6, ante. 19 2. Allowing Nurse Wilson to Testify About Rape Exams She Did Not Perform Did Not Violate the Confrontation Clause Sally Wilson, who performed the rape exams on N.G. and Kimberly, testified about the results of those exams, as wellas the rape examsthat other nurses conducted of C.C. and R.I. Wilson was a sexualassault nurse examiner and the clinic coordinator at the Santa Monica-UCLA Rape Treatment Center. She wasa qualified expert, had personally conducted as many as 600 sexual assault examinations, and had reviewedthe reports of the sexual assault exams performed on C.C. and R.I. by nurses she supervised. The rape examsdid not document any lab analysis or reach any scientific conclusions. Instead, they recorded whatthe victims said and what the nurses observed. Underthe Sixth Amendmentto the United States Constitution, a defendant in a criminaltrial has the right to confront and cross-examine adverse witnesses. The essence of a confrontation clause violation is the use of a hearsay declarant’s testimonial statements. Testimonial statements are those that in purpose, form, and setting, are akin to testimony given by a witnessat trial. (People v. Cage (2007) 40 Cal.4th 965, 984-987.) Relying on Melendez-Diaz v. Massachusetts (2009) 557 U.S. __, 129 S.Ct. 2527 (Melendez-Diaz), Villatoro contends thathis Sixth Amendment right to confront the witnesses against him wasviolated because he wasnot allowed to cross-examine the other two nurses. Wefirst hold that the issue was waived because no confrontation clause objection was madeat trial. Melendez-Diaz was decided five months before the start of Villatoro’s trial. Therefore, the law was not unsettled at that time. (Melendez-Diaz, supra, 129 S.Ct. at p. 2534, fin.3; People v. Burgener (2003) 29 Cal.4th 833, 869.) We alternatively conclude on the merits that no confrontation clause violation occurred. We begin by examining the relevantstate and federal authorities. 20 A. The Geier Decision The defendant in People v Geier (2007) 41 Cal.4th 555, was convicted of murder and rape based in part on DNA evidence tested by Cellmark. The analyst who performed the testing did nottestify at trial. Instead, a lab director who cosignedthe report did, and, based on the results and her review ofthe casefile, testified that in her expert opinion the incriminating DNA matchedthat of the defendant. Geier contendedhis constitutional right to confront and cross-examine adverse witnesses wasviolated because the lab analyst did nottestify. Our Supreme Court disagreed. After examining disparate state and federal authority on the issue of whetherscientific test reports were testimonial for purposes of the confrontation clause, the Geier court concluded a statement was testimonial only if three requirements were all met: (1) it was made to a law enforcementofficer or by a law enforcementofficer or agent; (2) it describes a past fact related to criminal activity; and (3) it will possibly be usedata later trial. (Geier, supra, 41 Cal.4th at p. 605.) The Geier court found the second point determinative. Even though the analyst was working for the police and could reasonably anticipate the use of hertest results attrial, those results “constitute[d] a contemporaneousrecordation of observable events rather than the documentation of past events.” (bid.) Asa result, when the analyst recorded the results, she was not acting as a witness and wasnottestifying. Ud. at pp. 605-606.) Ultimately, it was the circumstances under which the analyst’s reports and notes were madethat led the Geier court to conclude they were not testimonial and therefore did not violate Geier’s confrontation rights. First, they were generated as part of a standardized scientific protocol conducted pursuant to her employmentat Cellmark. Even though the prosecutor hoped to obtain evidence against Geier, the analyst’s work product waspart of her job, and was not intendedto incriminate him. Second, to the extent the analyst’s notes and reports recount the procedures 21 used, they were not accusatory because DNA analysis can leadto either incriminatory or exculpatory results. Finally, the accusatory opinionsthat the DNAevidence matched Geier “were reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness, [the lab director].” (Geier, supra, 41 Cal.4th at p. 607.) B. Melendez-Diaz The defendant in Melendez-Diaz, supra, 129 S.Ct. 2527, was convictedin Massachusetts state court of selling cocaine. A substance in the defendant’s possession that was believed to be cocaine wassent to a lab for analysis, and the lab test confirmed it was cocaine. Attrial, as permitted by Massachusetts law,a sworn affidavit knownas a certificate of analysis was allowed in evidence in order to prove that the substancetested positive as cocaine. The analyst who performed the test did nottestify at trial. The certificate said nothing more than that the substance was found to contain cocaine. At the time oftrial, the defendant did not know whattests the analyst performed, whether those tests were routine, or whetherinterpreting their results required the exercise ofjudgmentorskills the analyst did not possess. The Melendez-Diaz court held that the affidavits fell within the core class of testimonial statements — such as depositions, prior testimony, declarations, and affidavits — whose admission violates the confrontation clause. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.) Therefore, the analysts were witnesses and their affidavits were testimonial, meaning that the defendanthada right to “confront” them at his trial unless the analysts were unavailable for trial and the defendant had a previous opportunity to cross-examine them. (/d. at p. 2532.) In short, “[t]he Sixth Amendment doesnotpermit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence. . . was error.” (/d. at p. 2542, fn. omitted.) 22 C. Geier, Not Melendez-Diaz, Applies to This Case Respondent contends Melendez-Diazis limited to the use ofaffidavits to provethe results of scientific lab tests, permitting Wilson to testify under Geier. Weagree. 10 Weare boundto follow Melendez-Diaz in cases involving similar facts. (Austin v. Wilkinson (N.D.Ohio 2006) 502 F.Supp.2d 660, 671; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 703.) At issue in Melendez-Diaz was the prosecution’s ability to prove a substance was cocaine by wayofan ex parte affidavit devoid of any details apart from the unsupported conclusion that unspecified test results showed it was cocaine. The court held that for purposes of the confrontation clause, the affidavits were the same as depositions, declarations and other testimonial statements. (Melendez-Diaz, supra, 129 S.Ct. at pp. 2531- 2532.) It did not reach the issue decided in Geier, supra, 41 Cal.4th 555, or the issue raised here — whether an expert witness in the area of rape examinationtests and results can render her own independent opinion during trial based on the results of rape examinations conducted by other nurses she supervised, subject to full cross-examination by the defendant. Nordid the Melendez-Diaz court hint, much less suggest, that its reasoning would extend to these circumstances. Instead, Justice Scalia, writing for the majority, framed the question before the court as “whether those [drug analysis] affidavits are ‘testimonial,’ rendering the affiants ‘witnesses’ subject to the 10 The California Supreme Court recently granted review in five Court of Appeal decisions that took divergent views on this issue. (People v. Benitez (2010) 182 Cal.App.4th 194 [106 Cal.Rptr.3d 39], review granted May 12, 2010, $181137,; People v. Rutterschmidt (2009) 176 Cal.App.4th 1047 [98 Cal.Rptr.3d 390], review granted Dec. 2, 2009, S176213; People v. Gutierrez (2009) 177 Cal.App.4th 654 [99 Cal.Rptr.3d 369], review granted Dec. 2, 2009, S176620; People v. Dungo (2009) 176 Cal.App.4th 1388 [98 Cal.Rptr.3d 702], review granted Dec. 2, 2009, S176886; and People v. Lopez (2009) 177 Cal.App.4th 202 [98 Cal.Rptr.3d 825], review granted Dec. 2, 2009, S177046.) 23 defendant’s right of confrontation under the Sixth Amendment.” (Melendez-Diaz, supra, 129 S.Ct. at p. 2530.) Its holding was limited to a determinationthat the “Sixth Amendment doesnot permit the prosecution to prove its case via ex parte out-of-court affidavits ....” (/d. at p. 2542, fn. omitted.) Even though Justice Thomasjoined in the 5-4 majority vote, he wrote a separate concurring opinion stating his belief that the confrontation clause extended to only core testimonial statements, while clarifying that he joined the majority solely because the affidavits at issue fell within that class. (/d. at p. 2543 (conc. opn. of Thomas, J.).)1 In short, Melendez-Diaz did not overrule Geier and its holding has no application here. Geier is controlling authority on this issue which we are obligated to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we hold that under Geier, having Wilsontestify instead of the other two nurses, did not violate the confrontation clause. Vigorouscross- examination of Wilson ensured Villatoro’s Sixth Amendmentrights. Wealternatively conclude that even if error occurred, it was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) Amongthe factors we consider are: the importance of the witness’s testimonyto the prosecution’s case; whether that testimony was cumulative; whetherthere is evidence to corroborate or contradict the witness on material points; the extent of cross examination allowedbythetrial court; and the overall strength of the prosecution’s case. (Jbid.) Wilson’s testimony was both cumulative of, and corroborated by, R.I.’s and C.C.’s testimony about their encounters with Villatoro. Furthermore, a videotape of R.I.’s injuries that was taken at the hospital was also placed in evidence, as was 11 We observe that the United States Supreme Court denied a petition for certiorari in Geier just four days after deciding Melendez-Diaz. (Geier, supra, 41 Cal.4th 555, cert. den. Jun. 29, 2009, No. 07-77770, sub nom. Geierv. California (2009) __—sUS.___—«[129 S.Ct. 2856].) 24 the DNA evidencelinking Villatoro to both C.C. and R.J. Wilson wascross examined at length about the procedures for preparing the exam reports, as well as about apparent inconsistencies in the reports prepared about R.I. and C.C. Although Wilson’s evidence corroborated C.C.’s and R.I.’s accounts of what happened, given the highly similar nature of the attacks on the other three victims, Wilson’s testimony wasnotthe strongest part of the prosecution’s case. Instead, the fact that five victims with no known connection among them came forward overa three-year time span to claim that Villatoro raped them under very similar circumstances wasthe linchpin of a very strong prosecution case. Onthis record, we concludethat evenif the trial court erred by admitting Nurse Wilson’s testimony as to the rape exam reports prepared on C.C. and R.I., the error was harmless beyond a reasonable doubt. 3. No Error In Admitting Kimberly’s Preliminary Hearing Testimony Kimberly appearedattrial, but refused to testify. The court questioned her outside the presence of the jury, and warned her about her uncooperativeaffect, stating: “Let’s have her get up on the witness stand andtell us that she does not wantto testify. [{]] Would you face the clerk and raise your right hand. All right. Kimberly, . . . if you don’t wantto testify, I’m going to honor — I have to —your desire not to testify. Don’t stand with that kind of posture. Nobodyis going to give you a hard time. You can cooperate and not havethat kind ofattitude. Face the clerk and raise your right hand. Raise your right hand.” When questioned by the prosecutor, Kimberly said she did not want to testify, was refusingto testify, and that there was nothing the prosecutoror the court could do to get herto testify, not even if the court fined her. Defense counsel then questioned Kimberly. She said nothing could be done to make her more comfortable, even if she were allowedto sit behind a screen. When defense counsel asked whyshetestified at the preliminary hearing, 25 Kimberly said she had to because she wasinjail at the time. The fact that she was in jail had no effect on her testimony, she said. The court asked Kimberly whether she would refuse to answer any questions, and shesaid “yes.” She did testify truthfully at the preliminary hearing, she said. The prosecutor asked the court to find that Kimberly was unavailable to testify, thereby permitting the use of her preliminary hearing testimony. Defense counsel objected that the court had the option of imposinga fine or ordering Kimberly to perform community service. The court disagreed: “I heard her testimony, and I observed her. She was very defensive and insolent. Her body posture was very antagonistic. Until I ordered her, she wouldn’t even look at the clerk to take the oath. She put her hand downassoonasthe clerk started administering the oath, and I had to yell at her to get her to put her hand up. I’m makinga finding that she not only stated nothing would be done to make her testify, but it’s clear from her body language she’s extremely antagonistic and defensive. And J think it’s clear that nothing would induceherto testify.” Whena witnessis present in court but refusesto testify, she may be found unavailable as a witness. (§ 240; People v. Smith (2003) 30 Cal.4th 581, 623- 624.) Formertestimony by an unavailable witness is allowed in evidenceif the party against whomitis offered was a party to the action where the testimony was given and wasoffered the opportunity to cross-examine the witness at that proceeding with an interest and motive similar to that which he hasat the current hearing. (§ 1291, subd. (a)(2).) Villatoro contendsthetrial court erred in admitting Kimberly’s preliminary hearing testimony because: (1) it did not take sufficient steps to get herto testify before declaring she was unavailable; and (2) his lawyer’s motive and interest when he cross-examined Kimberly at the preliminary hearing was geared towards discovery of her version of events, while his motive and interestat trial was to impeach her. Asto the first, because Kimberly wasa sex assault victim, incarceration following a contemptcitation was not an optionfor the trial court whentrying to 26 convinceherto testify. (Code Civ. Proc., § 1219, subd. (b).) Although Villatoro contendsthe trial court could have imposeda fine or ordered community service, or otherwise taken more steps to persuade Kimberleyto testify, the court need not take suchstepsif “it is obvious that such steps would be unavailing.” (People v. Smith, supra, 30 Cal.4th at p. 624, quoting People v. Sul (1981) 122 Cal.App.3d 355, 364-365.) Thetrial court observed Kimberley’s demeanor,affect, and responses and foundthat there was nothing it could do to get herto testify. The record supports this conclusion, and wetherefore affirm the finding. (People v. Alcala (1992) 4 Cal.4th 742, 778-780 [using substantial evidence standard to affirm trial court finding that witness was unavailable].) Asfor the supposed differences in motivation and interest when cross- examining Kimberly at the preliminary hearing, we haveread the transcript of Kimberley’s cross- and recross-examination at that hearing. Although defense counsel was asking Kimberley to describe what happened, he wasalso probing her credibility and looking for ways to impeach her.!2 The motivesandinterests in cross-examination need be only similar, not identical. (People v. Valencia (2008) 43 Cal.4th 268, 293-294.) On this record, we conclude that the motive andinterest animating defense counsel’s cross-examination of Kimberly at the preliminary hearing was sufficiently similar to the motive and interest he would have hadat trial to satisfy section 1291 and permit the use of the preliminary hearing testimony. (People v. Wharton (1991) 53 Cal.3d 522, 589-590.) 12 Forinstance, counsel questioned Kimberley about: differences between her statementto the police and a security video camera as to the time she encountered Villatoro; whether she refused to identify a friend because the friend and she were both prostitutes;(CT 24- 25)~ her agreement to have sex with Villatoro for money; that she knew Villatoro had put his penis, not his fingers, inside her vagina because she had a lot of experience and knew the difference; that a detective told her the model nameofthe car she said belonged to Villatoro; and that she had sustained juvenile petitions for theft and for loitering for prostitution. 27 4. Testimony By Police And Nurse Witnesses About Victim Statements Were Properly AdmittedAs Prior Consistent Statement After the victims were impeached on cross-examination in certain respects, the prosecutor questioned Nurse Wilson and certain of the investigating police officers in order to confirm the victims’ statements about what happened to them. Los Angeles Police Officer Chuntestified about comments C.C. madeto him. Officer Howell, Detective Wong, and Nurse Wilsontestified about comments made to them by N.G. Detective Cadenatestified about statements made to him by R.L, and Officer Choubtestified in response to questions and answers from Kimberly’s preliminary hearing testimonyto the effect that a detective identified the model of Villatoro’s car. Villatoro contendsthat all of these were hearsay. However, at trial, he objected to only the testimony of Officer Chun regarding C.C.’s statements and of Detective Wong regarding N.G.’s statements. Therefore, he has forfeited his objectionsto all the other evidence. (§ 353; People v. Kennedy (2005) 36 Cal.4th 595, 612, overruled on another point in People v Williams (2010) 49 Cal.4th 405, 459.) The trial court allowed the testimonyas proof ofprior consistent statements by those two victims. (§§ 791, 1236.) A prior consistent statementis admissible as a hearsay exceptionifit is offered after admission into evidence of an inconsistent statement used to attack the witness’s credibility and the consistent statement was made before the inconsistent statement, or when there is an express or implied charge that the witness’s testimony wasrecently fabricated or influenced by bias or improper motive, and the statement was madebeforethe allegations of fabrication, bias, or improper motive. (§§ 791, 1236; People v. Kennedy, supra, 36 Cal.4th at p. 614.) Villatoro contends that no inconsistent statements were offered in evidence, or that any motive to fabricate on the part of the victims arose before the supposedly consistent statements were madeto the police. However, even though Villatoro cites to the pages in the record where the disputed testimony occurred, he 28 does not point out any individual portions of the examination of the victims or the police witnesses and discuss or analyze why and howthetrial court’s ruling violated sections 791 and 1236. Wetherefore deem the issue waived. (People v. Beltran, supra, 82 Cal.App.4th at p. 697, fn. 5.) Alternatively, we hold that even if error occurred, it was harmless. All the officers did was reiterate the two victims’ versions of events. Given the strikingly similar versionstold by five different, unrelated, victims about incidents occurring over a three-year span, combined with the DNA evidence linking Villatoro to four of the victims, we hold under any applicable standard of review that admission of the corroborating evidence washarmless. 5. Burden ofProofInstruction Villatoro contends that the CALCRIM No.220 instruction that defines the reasonable doubt standard was constitutionally infirm because: (1) it did not allow the jury to consider the absence of evidence; (2) it told the jury to impartially consider and compare the evidence becauseit suggests the defendant must produce evidence; and (3) it did not direct the jury to find each element of an offense beyond a reasonable doubt. As respondent points out, these contentions have been rejected by numerous courts of appeal. (People v. Riley (2010) 185 Cal.App.4th 754, 768-769; People v. Henning (2009) 178 Cal.App.4th 388, 406; People v. Wyatt (2008) 165 Cal-App.4th 1592, 1601; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269.) We will not replow the samefield, and accept as well reasoned the holdings of those and other similar decisions. 6. Sufficient Evidence Supports the Finding That the Stun Gun Was a Deadly or Dangerous Weapon Villatoro used a stun gun during the rapes of Beverly, C.C., and Kimberly. Based onthis, the jury foundtrue allegations that he used a deadly or dangerous weapon, leading the court to impose sentences of 25 yearsto life. (Pen. Code, 29 § 667.61, subds. (a)(e)(3).) Villatoro contends there wasinsufficient evidencethat the stun gun he used qualified as a deadly or dangerous weapon because his expert testified the weapon wasincapableofinflicting severe harm, and because he did not actually stun his victims. Asto the latter contention, the mere fact that Villatoro displayed the stun gun in a menacing mannerto producefear of harm is sufficient evidence that he “used” the weapon. (Pen. Code, § 12022; People v. Wims (1995) 10 Cal.4th 293, 302-303, overruled on another point in People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Asfor whether the stun gun was a deadly or dangerous weapon,this was a proper subject for expert testimony. (People v. Racy (2007) 148 Cal.App.4th 1327, 1333 [withoutinfliction of injury by stun gun, expert testimony was required to show it was capable ofinflicting great bodily injury in prosecution for felony elder abuse].) Here, there was such testimony. Detective Wongtestified that stun gunsare capable of causing injury or death. Such weaponscause pain, involuntary muscle contractions, and may causeheart attacks, blindness, or burns. Although the defense expert opined that the stun gun Villatoro used was of low intensity that could not cause a serious injury, Wong testified that the weapon put out far more voltage than those issuedto the police. Furthermore, the defense expert concededthat the stun gun could cause painful burnsandthat if used on the head, neck, or genitals, could cause serious injury. This evidence was more than enoughto support the jury’s finding that Villatoro used a deadly or dangerous weapon. 30 DISPOSITION The judgmentis affirmed. RUBIN,J. WE CONCUR: BIGELOW,P.J. GRIMES,J. 31 PROOF OF SERVICE Edward J. Haggerty, P.C. Case No. B222214 20955 Pathfinder Road, Suite 100 Diamond Bar, CA 91765 I, the undersigned, say: I am over the age of 18, employed in the County of Los Angeles, State of California, in which county the within-mentioned delivery occurred, and not a party to the subject cause. My business address is 20955 Pathfinder Rd., Ste. 100, Diamond Bar, California. I served the APPELLANT’S PETITION FOR REVIEWofwhicha true and correct copy of the documentfiled in the cause is affixed, by placing a copy thereof in a separate envelope for each addressee namedhereafter, addressed to each such addresseerespectively as follows: SEE ATTACHED SERVICELIST Each envelope was then sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Rowland Heights, California, on April 21, 2011. I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on April 21, 2011 at Diamond Bar, California. EdwardJ. Haggerty 31 PROOF OF SERVICE LIST Clerk of the Court Second Appellate Dist., Div. Eight 300 South Spring Street Los Angeles, CA 90013 Office of the Attorney General 300 South Spring Street North Tower, Suite 5001 Los Angeles, CA 90013 California Appellate Project Los Angeles Office 520 South Grand Avenue Fourth Floor Los Angeles, CA 90071 Hon. William N.Sterling Los Angeles County Superior Court 210 West Temple Street Los Angeles, California 90012 Ms. Ann Marie Wise, Esq. Office ofthe District Attorney 210 West Temple Street, Room 17-1007 Los Angeles, CA 90012 Mr.Juan Jose Villatoro, AC5230 H.D.S.P., B-5-115 P.O. Box 3030 Susanville, CA 96127 32