APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Reversed in part and Affirmed in part. (Los Angeles County Super. Ct. No. BA268612).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Arnulfo Vargas of various sex offenses against four victims -- Shosh G., Maria R., Tamika G., and Bin Z. -- and also found true three so-called "one strike" allegations.*fn2 The trial court sentenced defendant to three consecutive terms of 25 years to life in state prison, one consecutive term of 15 years to life, and a total consecutive determinate term of 61 years.*fn3
On appeal, defendant raises two contentions under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and its progeny. First, he contends that the trial court erred in admitting "testimonial" hearsay statements made by Maria R. during a sexual assault examination, requiring reversal of count 3 (forcible rape) and count 6 (sexual penetration by a foreign object). In the published portion of our opinion, we conclude that the court erred in admitting Maria R.'s hearsay statements. The error is harmless beyond a reasonable doubt as to defendant's conviction of count 3 (forcible rape), but not as to his conviction of count 6 (sexual penetration by a foreign object). We therefore reverse the latter conviction and the sentence on that count.
In the unpublished portion of our opinion, we consider defendant's second Crawford contention: that the court improperly allowed the sexual assault examinations of Tamika G. and Bin Z. to be described through the testimony of two non-examining nurses, who relied on the reports prepared by the nurses who performed the examinations. Defendant contends that this error requires reversal of all counts as to those victims. We conclude that defendant has forfeited his challenge to the testimony regarding the sexual assault examinations of Tamika G. and Bin Z. Moreover, even if the admission of that testimony was improper, the error was harmless beyond a reasonable doubt.
We also consider in the unpublished portion of our opinion defendant's claims that the court committed two instructional errors, namely, failing to properly instruct on the elements of kidnapping for rape against Tamika G. and Shosh G. (counts 11 and 17), and failing to instruct on simple kidnapping as a lesser included offense, requiring reversal of those counts. We find no error. We disagree with the legal premise of defendant's argument regarding the instructions on kidnapping for the purpose of rape, and also conclude that he has forfeited the contention. Regarding defendant's argument that the court erred in failing to instruct on simple kidnapping as a lesser included offense, we find no substantial evidence to support the instruction, and in the alternative conclude that defendant suffered no prejudice. Therefore, with the exception of reversing the conviction and sentence on count 6, we affirm the judgment.
1. Shosh G.-- Forcible Rape (counts 1 and 21), Kidnapping to Commit Rape (count 17), Sexual Penetration by a Foreign Object (count 18), Forcible Oral Copulation (count 19), and Forcible Sodomy (count 20)
Around 11 p.m. on March 1, 2000, Shosh G. was waiting for a bus at Santa Monica and La Brea Boulevards, heading to a friend's home in the San Fernando Valley. After she had been waiting approximately 45 minutes, defendant drove up in a white van, stopped, and asked where she was going. She told him she was going to the San Fernando Valley. Defendant offered to drive her. Because she had been waiting a long time and defendant seemed nice, Shosh accepted.
Defendant drove on the 101 freeway, exited at Sherman Oaks, and stopped in a construction area behind a gas station. He told Shosh he was going to collect some money and left. He returned in a few minutes, locked the vehicle's doors, and began choking Shosh by pressing his elbow against her throat. Shosh cried and begged him to let her go. Defendant told her to take off her pants, shirt and bra. Shosh complied, but said she was on her period. Defendant penetrated her with his finger, told her she was lying, and became very angry.
Defendant raped Shosh, turned her over, and sodomized her. She was bleeding, and begged him to let her go. He then forced her to orally copulate him, after which he raped her again. Defendant told her that she was beautiful and could make a lot of money. He urged her at least to pretend like she enjoyed it.
When he finished, Shosh dressed and defendant started driving. Shosh repeatedly begged to be released, but defendant kept driving. After a few minutes, Shosh was able to escape by unlocking the passenger door and jumping from the vehicle. She ran to an apartment complex and called her boyfriend, Oren Waks, who picked her up and took her to Cedars-Sinai Hospital. Shosh felt pain in her vagina and also in her anus, which was bleeding.
Dr. Matthew Hendrickson, an emergency room physician at Cedars-Sinai Hospital, examined Shosh and filled out a standard form for sexual assault examinations, the OCJP-923 form. Shosh said that she had been penetrated orally, rectally, and vaginally. She complained of pain to the vagina. Dr. Hendrickson found white secretions and blood on the cervix. He collected vaginal swabs and gave them to the police.
At trial, Shosh identified defendant as her attacker. Also, in September 2004 she selected his photograph from a photo lineup.
2. Maria R. -- Forcible Rape (count 3), Forcible Oral Copulation (count 5), and Sexual Penetration by a Foreign Object (count 6)
On September 19, 2001, Ana Cardenas was working at First Legal Support at 1511 West Beverly Boulevard in Los Angeles. A young girl later identified as Maria R., perhaps 14 to 17 years old, entered the business. She was shaking and crying. Cardenas asked, in Spanish, what had happened. Maria, speaking in Spanish and crying constantly, told her that a man had forced her into his car and "made [her] do things." When Cardenas asked what things, Maria repeatedly said that he made her give him oral sex.
Later that day, Jean Stephenson, a forensic nurse examiner at California Hospital, performed a sexual assault examination on Maria, and completed the standard OCJP-923 report. Referring to the report, Stephenson testified that she asked Maria what had happened to her. Stephenson recorded Maria's response in her report as follows: "[I]t says penetration of vagina by penis and I have marked it yes times two. Finger, yes. . . . For oral copulation of genitals [of] victim by assailant it is marked yes and of assailant by victim it's marked yes times five." As to whether the assailant ejaculated, Stephenson recorded Maria's answer as "yes times two."
In examining Maria, Stephenson observed redness on the genitalia, and abrasions to both sides of the labia majora (the outer lips of the vulva) and to the hymen. In Stephenson's opinion, the injuries were consistent with blunt force trauma. Stephenson collected oral and vaginal swabs.
3. Tamika G. -- Kidnapping to Commit Rape (count 11), Forcible Rape (count 12), and Forcible Oral Copulation (count 13)
Around 3:00 a.m. on October 8, 2003, Tamika G. was waiting for her boyfriend at a bus stop near the Greyhound bus station in downtown Los Angeles. At the time, Tamika was a prostitute. She was "coming down" after using methamphetamine. (By the time of trial, she was married, had a family, and had been drug free for four years.) Defendant passed by twice in his white truck, finally stopped, and asked if she "dated." She replied that she did, but at the time was simply waiting for her boyfriend. Defendant offered her a ride. Tamika approached his truck, but then thought she saw her boyfriend and started to back away. Defendant grabbed her arm through the open passenger door, pulled her into the truck, and drove off.
Defendant drove through a tunnel near the Sixth Street Bridge and onto the bed of the Los Angeles River. While driving, defendant told her that he was an undercover police officer and recognized her. He said that he knew a spot to go, and mentioned that he had a stun gun. He said that if she tried to get out, he had people nearby that would get her. Because the truck was moving, Tamika had no chance to escape.
Defendant stopped in the riverbed, then backed the truck into the mouth of another tunnel. There was no lighting. Defendant said that he had a friend that was a pimp, that she could make a lot of money, and that he had to try her out first. He ordered her to take her clothes off. She complied, but told him that she did not want to do anything. Defendant forced her to orally copulate him, and then raped her; he used a condom because she told him she had children.
Tamika started to put on her clothing, but defendant stopped her and said that she did not need her clothes where she was going. He then threw her clothes out the window into the water in the river bed. He backed the truck further up into the tunnel. Thinking that he was going to kill her, she pleaded for her life. Defendant let her open the door, and when she got out he sped off, leaving her in standing in the tunnel in her underwear. Tamika ran out of the tunnel. A homeless person gave her a shirt to cover herself, and someone called the police.
Tamika identified defendant as her attacker in a pretrial photo lineup and at trial.
Later on October 8, 2003, a forensic nurse at California Hospital, Chris Pollard, performed a sexual assault examination on Tamika and completed the standard form (the OCJP-923). Pollard did not testify at trial. Rather, Jean Stephenson, the nurse who had examined Maria R. at the same hospital and who had trained and supervised Pollard, testified concerning Tamika's examination by relying on Pollard's OCJP-923 report.
According to Stephenson, Pollard wrote in her report that Tamika complained of pain to her vagina. In a diagram, Pollard recorded that she observed redness at the cervix (the end of the vaginal barrel and the beginning of the uterus).
Stephenson testified that such a condition "could mean anything," but "can be" consistent with a complaint of sexual assault.
Referring to another diagram prepared by Pollard, Stephenson testified that Pollard observed abrasions to Tamika's left foot and to her right knuckle, and observed dirt on the right knee. Stephenson examined photographs of the injuries, and found them consistent with the injuries diagramed by Pollard.
On the same diagram, Pollard wrote that she observed Tamika to be "disheveled, unkempt and tearful," and that Tamika's clothing "was dirty [and she was] wearing a bra and long-sleeved men's shirt." Pollard also wrote that Tamika's "clothes were thrown out of the car."
According to Stephenson, Pollard recorded the sex acts as described by Tamika: the assailant penetrated her vagina with his penis three times, and Tamika orally copulated his genitals. Tamika said that the assailant used a condom and threw it out the window.
4. Bin Z. -- Kidnapping to Commit Rape (count 14), Forcible Rape (count 15), and Second Degree Robbery (count 16)
On October 20, 2003, twelve days after the assault on Tamika G., Bin Z. arrived at the Greyhound bus station in downtown Los Angeles around 6:00 a.m. She had traveled from Northern California, intending to visit her boyfriend in Monterey Park and make arrangements for their wedding. Bin spoke very little English. For more than an hour, she waited for a bus at a nearby bus stop -- the same location where defendant had picked up Tamika G. Finally, a passerby told her that there was a bus strike. Another passerby directed her to defendant, who was seated in his white truck stopped at the curb. Bin went over to defendant and told him, in broken English, she was headed for Monterey Park. Defendant said that he lived in El Monte, which was on the way, and would drive her. He mentioned something about money -- eighteen or eighty dollars -- that Bin did not understand. She thought he was going to charge her for the ride.
Bin got in, and defendant drove under a bridge to a tunnel, and then through the tunnel to the Los Angeles River basin, the same area where he had assaulted Tamika G. twelve days earlier. Bin became frightened and asked where they were going. Defendant said that they were headed to the freeway. Defendant drove on the river basin for a few minutes, then began to back up. When Bin tried to make a call with her cell phone, defendant stopped the truck and grabbed her phone. Bin grabbed the car keys, and defendant pinned her against the interior side of the car with his elbow. Bin tried to get out, but the car door was locked. Defendant obtained the keys, and backed the truck into a tunnel opening, still pressing Bin against the interior side of the truck.
After stopping, defendant removed Bin's clothing and forced her onto his seat (which was lying flat) and raped her. He ejaculated and pulled up his pants. Bin gathered her clothing. Threatening her with a screwdriver, defendant motioned for Bin to get out. She did, and defendant drove off with her belongings, including her cell phone and $3,000 in her purse, leaving her standing naked in the tunnel. Bin dressed and ran out of the tunnel. A passerby called the police.
Bin selected defendant's photo in a photo lineup a "long time after [the assault]," and also selected it on the day of her trial testimony. She also identified defendant at trial.
Bin was examined on October 20, 2003, at Los Angeles County U.S.C. Medical Center by nurse practitioner Gina McConnell. McConnell did not testify at trial. Rather, another nurse practitioner who had helped train McConnell, Julie Lister, testified about the examination, relying on the OCJP-923 report that McConnell completed.
Lister testified that Bin told McConnell that she felt like she had been bruised all over her body. In her report, McConnell identified nine areas of bruising. She wrote that Bin had "profound ecchymosis [bruising] to the left side of neck across upper chest to left shoulder." She also observed bruising above the right breastbone, on the right waist area, on the left leg below the buttock, and on upper left thigh. McConnell observed ...