P. v. Bahabla

Filed 7/19/07 P. v. Bahabla CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Merhani Teklemariam Bahabla of 11 sex offenses against four victims. The trial court sentenced defendant to an aggregate determinate term of 37 years, plus an indeterminate term of 75 years to life.

With regard to one victim, defendant contends: (1) that the trial court erred by finding the victim to be an unavailable witness and allowing her preliminary hearing testimony to be read to the jury; and (2) that the court erroneously admitted the tape of the victims 911 call because the call, or at least portions of it, was testimonial within the meaning of Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266] (Davis) and Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

With regard to two other victims, defendant contends: (3) there was insufficient evidence to support his conviction for raping one of the two victims; and (4) the trial court violated his right to cross-examine the two victims by refusing to allow defendant to impeach them with their prior convictions for petty theft.

With regard to the fourth victim, defendant contends: (5) that his sentence for one of the two crimes committed against the victim should be stayed pursuant to Penal Code section 654.

We disagree with all of defendants contentions and affirm.

I. FACTS

Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)

Defendant committed his crimes in Santa Rosa between October and December 2003. His four victims are Linnie, C., Shauna, and Ruth.[1] The victims all said their assailant spoke with a distinct or unusual accent. Defendant is originally from Eritrea.

The Peoples Case-in-Chief

Victim Linnie

Counts IX, XI, and XII

October 11, 2003

At approximately 3:00 a.m. on October 11, Linnie got off a Greyhound bus at a stop on Santa Rosa Avenue in downtown Santa Rosa. She had traveled from Humboldt County for a court-ordered visit with her son.

Defendant pulled up in a little red car and asked Linnie if she wanted a ride. She said yes, got in the car, and asked defendant to take her to Dutton Avenue. Instead, defendant drove along a back road close to a park.

Defendant stopped the car. Linnie, who needed to find a bathroom, got out of the car and started up a catwalk that crossed over Highway 101. Defendant ran up onto the catwalk and said to Linnie, Where are you going, Im going to beat you up. Defendant head-butted Linnie twice real hard. Linnie told defendant she had to go to the bathroom; defendant made her urinate on the catwalk.

Defendant then said, Youre coming with me and grabbed Linnie by the arm. He took her to the bottom of the catwalk. He ordered Linnie to remove her coat and put it on the ground, then remove her pants and underwear and get on all fours. Defendant began to have forcible vaginal intercourse with Linnie. He said, I bet you never been fucked like this before. Linnie responded, I like it because she didnt want to get beat up. Linnie thought she was going to die.

As he continued to rape Linnie, defendant asked her what was in her purse. She told him she had a little over $26, and defendant made her give it to him. Linnie was afraid of defendant when she gave him her moneyindeed, she was afraid of him from the time she was head-butted.

Defendant asked Linnie, do you want to suck my dick? and then placed his penis in her anus, causing Linnie pain. She acted like I liked it because she didnt want to get killed. Defendant also said, do you think I could pass up a big ass like that?

Defendant finally stopped and ordered Linnie to get dressed and walk to the bottom of a nearby set of stairs. Defendant said, go to the bottom of the stairs, Im going to fuck you up. Linnie thought defendant was going to kill her. She went to the bottom of the stairs, turned around, and saw that defendant was gone. Linnie ran off.

At first, Linnie did not call the police because she was embarrassed. The next day, she told her husband what happened. Her anus was ripped, with a piece of meat hanging out. Linnie also had black eyes and two knots, or lumps, on her forehead. She went to the hospital and was treated by emergency medicine physician Dr. Kay DueFrene. Dr. DueFrene testified that the bruises on Linnies forehead were consistent with being head-butted, and that Linnie had rectal bleeding and a lesion in the rectal area. The lesion was consistent with the trauma of rectal rape. Dr. DueFrene thought a penis wouldnt cause that injury in itself, but the doctor was not a sexual assault examiner.

Linnie did not know any of the other three victims. She admitted on cross-examination that she suffered a felony conviction for driving under the influence on September 27, 2000, another conviction for driving under the influence on May 20, 2004, and a conviction for assault with a deadly weapon on June 15, 1998.

Linnie positively identified defendant in court as the man who gave her a ride and sexually assaulted her. She testified that defendant had a little bit of an accent. On cross-examination, she denied telling a Humboldt County sheriffs deputy that her assailant had a Latin accent. At the close of the defense case, the parties stipulated that Linnie told a Humboldt sheriffs deputy on October 21, 200310 days after the assaultsthat her assailant was a dark-complexioned Latin or Asian-Indian male, Asian-Indian male with a Latin accent.

As a result of his sexual assaults on Linnie, the jury convicted defendant of forcible rape (Pen. Code,  261, subd. (a)(2)),[2] Count IX; sodomy by use of force ( 286, subd. (c)(2)), Count XI; and second degree robbery ( 211), Count XII.

Victim C.

Counts V, VI, VII, and VIII

December 16, 2003

As we discuss further below, C. was found to be unavailable for trial and her preliminary hearing testimony was read to the jury.

At approximately 9:00 p.m. on December 16, C. was standing in front of a Santa Rosa liquor store smoking a cigarette. A man she had never seen before pulled into the parking lot. C. positively identified that man at the preliminary hearing as defendant. He was driving a four-door burgundy car. Defendant circled around the parking lot and pulled up to C. He rolled down his window and told her to come over to his car, which she did. Defendant had a thick accent.

Defendant told C. he had never seen her around before. C. replied that she wasnt from out here. Defendant opened his passenger door and asked C. to have a seat. C. sat on the passenger seat with her feet hanging out of the car. Defendant told her to get in and close the door, which she did: I didnt know who he was, but he seemed okay to me, so I sat down and closed the door and he started to drive off.

C. told defendant she was with some people. Defendant pulled a knife and told her to shut up or Ill kill you. C. thought defendant was going to kill her.

As he kept driving and holding the knife on C., defendant asked her where she was from. She told him she was from Fairfield. He told her to shut up. Hed ask me questions and tell me to shut up. I thought something was wrong with him, thought maybe he was on drugs. I dont know.

After a five- or six-minute drive, defendant pulled up to the side of an apartment complex next to an empty field. Defendant asked C. how many times I have done this. She replied, done what? Defendant responded, you know what Im talking about, bitch and slapped her. He also told her not to lie.

Defendant forced C. to turn around in the passenger seat and face the rear window. He pushed her head down into the seat and made her pull down her pants and underwear. Defendant was behind her and she could see the knife to her right. Defendant asked her, how much? C. thought there was something wrong with defendant, so she said, free, you dont have to pay anything. Defendant told her to shut up and asked how many children she had. She said one, even though she had two. Defendant said maybe Ill let you live if youre not lying.

Defendant then began to sodomize C. and called her an American bitch. He stopped sodomizing her three or four times, each time telling C. she could go but then changing his mind and sodomizing her again. He made her get on her stomach in the back seat, and again sodomized her. C. did not think defendant was going to let her go, but was going to eventually kill me.

Defendant removed C.s boots and told her to sit on him so that she straddled him. He then raped her vaginally for about two or three minutes.

Defendant said, okay, Im done, and sat back. C. couldnt get out of the car because the door locks were child-proof. She started to scream. Defendant asked her what she was doing and what was wrong with her. Defendant opened the front door and C. jumped out. She wore only a shirt and a jacket, the latter wrapped around her waist. She left her pants, underwear and boots in the car.

Defendant drove off. C. screamed for help, but no one responded. She ran to the nearby apartment complex and began knocking on doors. After C. knocked on four doors, a woman answered her door and let C. in. The woman gave C. a pair of pants and called the police. An ambulance came and took C. to the hospital. C. testified at the preliminary hearing that as a result of the assaults she suffered a bite mark and a bruised rectum.

Kristina Pickett testified at trial. At approximately 9:00 p.m. on December 16, 2003, she was in her apartment watching television with her boyfriend. There was a knock at the door. Pickett opened the door and saw a young woman hunched over like she had the worst cramps in the world, that either she had had some trauma to her stomach or she was just in horrible pain.

The woman was screaming for help, that she had been raped. Her hair was messed up. . . really bad. She was wearing a shirt and a jacket wrapped around her waist with nothing underneath. She was crying and was acting frantic. She was scared. She was in pain, you know . . . like someone was going to go get her.

Pickett let the woman in. The woman said she had been raped. Pickett got the woman a pair of pants. The woman, who said her name was C., came five feet into the apartment and sat against the wall, hunched over.

Pickett called 911. C. did not calm down while Pickett spoke to the 911 operator. C. told Pickett that her assailant drove a burgundy car, had a knife, and she thought he was Arabian.

In proceedings on a motion in limine, the court redacted most of Picketts statements on the tape of the 911 call, except where Pickett was simply relaying C.s statements to the dispatcher. The redacted tape of the 911 call was played to the jury after Picketts testimony. The dispatcher obtained statements from C., who was still crying, regarding what had happened, where she was, and how she was injured. The dispatcher sent an ambulance to Picketts apartment. But the dispatcher also obtained statements from C. about the incident and about identifying characteristics of her assailant, including his clothing and his accent.

Dr. Daniel Calder, an emergency room physician, testified at trial that he examined C. at approximately 10:00 p.m. on December 16, 2003. The attending nurse had written on the chart that C. was crying, although the doctor could not remember. Calders records showed that C. had a bruise on her right shoulder slightly larger than two inches square, and a smaller bruise on the right wrist. C. told him she had been bitten on the face and neck. A Santa Rosa police officer testified that C. left the hospital without completing a sexual assault examination.

As a result of his sexual assaults on C., the jury convicted defendant of kidnapping to commit rape and/or sodomy ( 209, subd. (b)(1)), Count V; criminal threats ( 422), Count VI; sodomy by use of force ( 286, subd. (c)(2)), Count VII; and forcible rape ( 261, subd. (a)(2)), Count VIII.

Victim Shauna

Counts I and II

Victim Ruth

Counts III and IV

December 30, 2003

At approximately 7:30 p.m. on December 30, Shauna was working as a prostitute on Santa Rosa Avenue. As she was standing on a corner, a man drove up and asked her if she was working. She said yes and jumped in his car. Shauna positively identified defendant in court as the man whose car she entered. Defendant had an accent.

Defendant drove down Santa Rosa Avenue. Shauna thought they were going to her motel room, but defendant said he did not want to go there because he had been robbed in a motel room. They drove to the fairgrounds near the horse stables. It was dark.

Defendant parked and told Shauna to get into the back seat. Defendant, who was still in the front seat, locked the doors and told Shauna to scoot down on the drivers side. Defendant was in the front seat, facing her. Shauna removed her pants and underwear and asked defendant for her money. Defendant proceeded like he was getting his wallet but instead pulled out a ten-inch knife.

Defendant told Shauna to turn around and told her that he wanted to fuck me in my ass. Shauna said no, because I didnt do that. Defendant hit her on the jaw with his free hand. Defendant kept telling Shauna to turn around. She refused. He spit on her. She started crying. She again refused to turn around. Defendant hit her again and spit on her again. Defendant kept calling her bitch[] and hoe[].

At some point during this harangue, defendant climbed into the back seat. Defendant threatened to stab Shauna if she did not turn around. Shauna just raised up and . . . started fighting him and I grabbed the knife from him. Shauna grabbed the blade of the knife and held on, for about two minutes.

Shauna told defendant to unlock the door. He told her to do it, but she could not because the doors had power locks and could only be unlocked from the drivers seat. Defendant then unlocked the doors, and told Shauna get out my car, you crazy bitch. Shauna grabbed her pants and ran out of the car.

Defendant drove off. Shauna ran to the front gate of the fairgrounds. At approximately 7:40 p.m., Santa Rosa Police Officer Savage arrived and saw Shauna, distraught and crying. Her clothes and hands were bloodied. There were large lacerations on both her palms. Savage asked Shauna what had happened. Shauna lied, and said she was attacked from behind for no reason, because she didnt want to be arrested for prostitution. Savage summoned an ambulance that took Shauna to the hospital. Savage followed.

Savage spoke to Shauna at the hospital. She continued to stick to her story of being attacked from behind, describing her assailant as a black male with a distinct accent. Savage testified that Shauna told him the assailant drove a dark blue or black four-door car. Shauna testified she told Savage the car was burgundy.[3]

Shauna suffered lacerations on her left palm and right index finger. Each wound required over ten stitches. The nerve to the finger was damaged, causing a loss of sensation in the finger.

Officer Savage left the hospital to return to the fairgrounds to look for evidence.

At this point we must backtrack in our narrative to relate the involvement of victim Ruth, whom Officer Savage was to meet on his return to the fairgrounds.

Ruths encounter with defendant began some 50 minutes or so after Shaunas, which ended about 7:40 p.m. At approximately 8:30 p.m. Ruth left her house to go to Santa Rosa Avenue to work as a prostitute. She stopped at a Santa Rosa Avenue store to get chocolate milk and donuts.

Ruth walked down the street looking for a date. She was near a motel. A car pulled into the motel driveway and stopped. Ruth went up to the drivers window and asked the driver if he wanted a date, and quoted a price of $40. The driver told her to get in the car. Ruth positively identified defendant in court as the driver.

Ruth got in the car and told defendant to drive to a parking lot near where Ruth used to live. Ruth chose that location because she knew it was going to be okay. Instead, defendant drove to the fairgrounds where he said he worked. He drove to the rear of the grounds, near the horse stables. Defendant parked the car facing outward. Ruth removed her coat.

Ruth asked defendant for her $40. Defendant said, Heres your forty dollars, bitch and pulled out a knife. Ruth thought the knife was about 12 inches long. Ruth was in a bucket seat which fell back. She decided not to resist defendant because If I would have fought him, he would have really, really hurt me bad.

Ruth ended up face down on the collapsed bucket seat, hugging it. Defendant was over [her] with the knife. She felt the knife on the side of her body. Defendant said that after he was done doing it to me back there, he wanted me to suck him. Defendant also told Ruth that if I did everything he said, he was going to let me go.

Defendant then sodomized Ruth. He did it for a long, long time and it hurt. Defendant had his hands around Ruths neck, like he wanted to twist my neck or something.

During the lengthy sodomization, defendants penis twice fell [into Ruths] vagina a couple of times, but he didnt want that. He wanted it back there. When asked how she knew what defendant wanted, Ruth replied, Because if he would have wanted it in my vagina, he would have left it in there. He knew. He knew. Ruth described the entries of defendants penis into her vagina during the long sodomization as just one slip and it came back out and just one pump each time, and then it was out of there.

When defendant finished sodomizing Ruth, he said . . . he wanted me to suck him Ruth told defendant, that was it, no, give me the knife, Ill kill myself. Ruth grabbed her jacket and opened the car door. I yelled fire, I yelled rape, but no one heard nothing because no one was out there. Defendant threw her shoes, milk and donuts out of the car. Defendant drove off.

As we have noted, Officer Savage had returned to the fairgrounds. As he pulled into the rear gate of the fairgrounds, he saw a woman walking in his direction from the stables. This woman was Ruth. She was kind of leaned over, bent over crying, very distraught, makeup running from her face. Savage asked Ruth what was wrong and she replied that she had been raped. She described her attacker as similar to Shaunas: black male with a distinct accent and not your traditional accent for a black male. Because of the timeframe of the two sexual assaults, Savage asked Ruth if she knew Shauna. She replied, Oh, My God. Yes, I do. Thats my friend.

Ruth told Savage that she was a prostitute working Santa Rosa Avenue and had picked up a man who wanted to have anal sex with her. The man pulled out a knife and Ruth, extremely scared, submitted to the anal sex. Savage or another officer summoned an ambulance for Ruth. Ruth suffered bruises and a ripped and bleeding rectum.

Officer Savage returned to the hospital and spoke to Shauna. Savage asked Shauna if she had a friend named Ruth. Shauna replied, Oh, my God. What happened? What happened? Thats my friend. Savage told Shauna that Ruth had just been raped at the fairgrounds. Shauna gave a more detailed description of her assailant, including that he was a light-skinned black male with a foreign accent. There happened to be an Eritrean family in the emergency room.[4] Savage had the male in that group . . . come over and say a couple words. When he spoke, Shaunas eyes lit up and she said something like yes, thats it, apparently referring to the Eritrean accent. The next day Shauna told a detective about the sexual assault.

Shauna testified that she had had some problems with the law, including a theft related offense in May of 2000 and another one in February 2003. She also admitted to having used marijuana. Ruth testified she had a daily crank habit at the time she was assaulted. Apparently, Ruth had used both crack and crank on the day of the sexual assault. She had had a drug problem all of her life, and twice had been in trouble with prostitution.

As a result of his assaults on Shauna, the jury convicted defendant of assault with intent to commit sodomy ( 220), Count I; and assault with a deadly weapon by means likely to produce great bodily injury ( 245, subd. (a)(1)), Count II.

As a result of his sexual assaults on Ruth, the jury convicted defendant of sodomy by use of force ( 286, subd. (c)(2)), Count III; and forcible rape ( 261, subd. (a)(2)), Count IV.

The Investigation

For reasons we need not discuss in detail, suspicion centered on defendant soon after the victims reported the assaults. The police traced defendant to a maroon 1996 Toyota Avalon, which was registered to defendants girlfriend. Defendant sometimes drove the car. Long red stains in the rear seat were blood of the same genetic profile as Shauna.

On February 6, 2004, both Shauna and Ruth independently picked their assailants picture from a six-person photographic lineup. We must note that Ruths testimony regarding having selected her assailants picture is somewhat confusing and equivocal. On February 20, 2004, Linnie spoke with Detective Musgrove who showed her a photo lineup. After three seconds she identified a picture as being that of her assailant. She began to tremble, cry, and choke up where it was hard for her to speak to the detective. It is unclear whether the victims selected defendants picture as their assailant, or merely identified their assailant in the line-ups.

Defense

Defendant testified. To enhance readability, we tell his version of eventswhich was rejected by the jurywithout continually repeating qualifiers such as defendant testified that or according to defendant.

Defendant testified as follows: Defendant was 27 years old and was born in the northeast African nation of Eritrea. He lived their until he was 12, moved to Kenya for two years, then came to the United States and lived for about 10 years in Chicago. He came to Santa Rosa in 2001.

In 2003, he was working at Costco where he collected shopping carts from the parking lot and helped customers load their cars. He met a young African-American man in the parking lot, who asked him for how long are you going to continue being a slave pushing carts? The man dress[ed] sharp and wore chains, some kind of ornaments. He was wearing Nike shoes. Defendant said the mans name was Tim Tupac. Because of his ornaments and chains, Tupac was known as Bling Bling.

Tupac asked defendant to work for him.[5] Apparently at their first encounter, Tupac said, For how long are you going to be a slave here. . . . For how long are you going to continue working for 40 or 80 hours? . . . If you work for me one day, two day[s], three days, I can give you cash. Tupac gave defendant $200, as an incentive to come to work for him. Tupac told defendant to think about working for him. In apparent reference to the $200, Tupac told defendant, if you agree, I can hook you up to that, you can work a couple of days and make a lot of money.

Tupac told defendant he had prostitutes working for him, and defendants job would be to follow them and see how long they will staypresumably with a client. In August 2003 defendant was fired from Costco, and around that time he went to work for Tupac.

Tupac introduced defendant to C., Shauna and Ruth, and said the three women worked for him as prostitutes. Tupac told defendant to follow them and mark when they went into a clients car and mark how long they were staying. Tupac would pay defendant at the end of the night, apparently based on the number of clients cars defendant would mark. Defendant would make $200 for three to four hours work. He used his girlfriends car while working.

Defendant claimed that C., Shauna and Ruth used drugs and sold drugs to their clients. Defendant had sex with C. between five and eight times, but did not have sex with Shauna or Ruth. Shauna and Ruth kept asking defendant for money, but Tupac said the women were just teasing defendant.

Defendant witnessed a verbal altercation between Shauna and Tupac. Tupac was mad and was insulting her. Defendant also witnessed Tupac having an argument with Ruth at the fairgrounds. Tupac had a gun in his waistband and pushed Ruth. Defendant witnessed verbal altercations and pushing and shoving between Tupac and C.

Defendant wanted to stop working for Tupac towards the end of December 2003. Tupac became angry and would not let defendant quit.

Defendant denied having forcible sex with C., Shauna, and Ruth. He denied pointing a knife at any of them. He admitted that when he spoke to Detective Musgrove during the investigation, he did not tell the detective anything about his relationship with Tupac, C., Shauna, and Ruth. He also said he did not tell the truth to the detective when asked whether he had been in trouble with the law in Illinois or had ever hit a woman. Defendant admitted he had a prior incident of drunk driving in Sonoma County.

On cross-examination, defendant admitted he lied to Detective Musgrove on several occasions in an interview during the investigation. Defendant said he was confused and afraid. He admitted he did not tell Musgrove about Tupac. Defendant again denied raping the three women. In describing his consensual sexual affair with C., defendant denied forcibly raping or sodomizing her, biting her, spitting on her, or calling her an American bitch. The three women knew him very well, and he was surprised when they came and said that I did all this to them. He opined that it must be a conspiracy among the three, because defendant was making money based on their work. Maybe they thought I exploited them.

Rebuttal

Detective Musgrove testified that defendant never mentioned Tupac during the investigative interview. Musgrove had the crime analysis unit check all available police department data bases where we enter all contacts with people that have been arrested, cited, any contacts in regards to any criminal investigations, or any investigations the police department does, or FIs, and that means a field interview card. The crime analysis unit searched for any black male by the name of Tim or Timothy who was nicknamed Tupac or Bling Bling. The unit also searched for the use of the two nicknames standing alone, or the use of Tupac as a first name. The unit found only one reference to anybody by the name of Tupac, and that was a Hispanic gentleman named Tupac Lopez.

Verdicts and Sentence

As noted in the lead paragraph, the jury convicted defendant of the 11 offenses described above.[6] The jury also found true various enhancements which we need not discuss. The trial court sentenced defendant to an aggregate determinate term of 37 years, plus an indeterminate term of 75 years to life.

II. DISCUSSION

A. ISSUES REGARDING VICTIM C.

1. C.s Unavailability As a Witness & The Use of Her

Preliminary Hearing Testimony

Defendant contends that the trial court erred by finding C. to be an unavailable witness and allowing her preliminary hearing testimony to be read to the jury. He contends the trial court denied him his right to face-to-face confrontation of the witness enshrined in the Sixth Amendment to the United States Constitution. We disagree. The trial court properly found C. to be unavailable, and her preliminary hearing testimony admissible, under the pertinent provisions of the Evidence Code. Defendant had the opportunity to cross-examine C. at the preliminary hearing, and did in fact do so. There is no violation of the right to confrontation. (See Crawford, supra, 541 U.S. at pp. 59, 68.)

On November 10, 2005, at 3:45 p.m. on the ninth day of trial, the court held a hearing to determine whether the prosecution had used due diligence to secure C.s attendance as a trial witness. A finding of due diligence was necessary to the courts determination that C. was unavailable.

District Attorney Investigator Kristin Allen testified at the due diligence hearing. We present her testimony in the form of a timeline. All dates are in 2005 unless we indicate otherwise.

The first few days of October. Allen sent a subpoena for an October 26 court date to C.s last known address in Fairfield on East Tabor Way. The subpoena was returned. Allen learned that C. had been arrested in Solano County and had an appearance date of November 3.

October 3. Allen called the office of C.s defense attorney in the Solano County matter and spoke to the attorneys secretary. Allen asked if there was any additional contact information for C., and the secretary gave Allen C.s cell phone number. The number had a 707 area code.

Allen called the cell phone number and spoke to C. Allen told C. she had sent a second subpoena to a Sacramento address on Carneros Creek, that Allens office had from prior contacts. C. advised Allen of the correct address and Allen told C. she would send a new subpoena to the correct address.

C. asked Allen to send an additional subpoena to the house of her ex-boyfriends mother in Suisun City. C. also provided Allen with phone numbers for her mother and a cell phone that would connect with the [Carneros Creek] address. This address was the home of C.s parents, i.e., her mother and stepfather. C. said she would comply with the subpoena and to go ahead and send it. The two talked briefly about her court date.

About two weeks later. Allen called C. on the cell phone number she had used the first time. She told C. she had a confirmed court date of October 26.[7] She asked C. to notify her of any address changes. C. told Allen she was still at the Carneros Creek address in Sacramento.

October 20. Allen received a page shortly before 4:00 p.m. It was from C., but from a different phone number altogether, with a 530 area code. C. told Allen that she was upset because her stepfather had sent her to Redding to live with her grandmother. C. said she was currently living there and her cell phone number was her current contact number. C. said she did not know how long she would be living in Redding, but indicated she had received a subpoena for October 26. C. was concerned that her Sonoma County appearance on the 26th would conflict with her Solano County court date on November 3. Allen told C. she would probably testify a few days after the 26th. C. again expressed concern about the conflict, and told Allen she would stay in touch.

October 27. Jury trial began in defendants case. (See fn. 7, ante.) The 27th and 28th were occupied by pretrial motions. The trial was continued to October 31 for jury selection.

October 30. Allen spoke to C., for the first time since October 20, when C. called and asked me about the court case. C. told Allen that she was now leaving Redding and going down to Sacramento because she had her court date in a few days. C. wondered if she had to appear in person for the other court date, November 3 in Solano County. Allen told her she would have to appear in person. Allen again confirmed with C. that she would be staying with her parents at the Carneros Creek address in Sacramento. C. no longer had her 707 cell phone number, but Allen confirmed with C. that Allen still had C.s mothers home and cell phone numbers.

October 31. Jury selection began. Voir dire continued on November 1, and jury selection concluded on November 3. The trial was continued to November 4, a Friday, for the commencement of the Peoples case.

Friday, November 4. Allen tried to contact C. by calling her parents home. Allen spoke to C.s stepfather. Allen asked him to leave a message for C. to give Allen a call. Allen gave the stepfather her phone numbers and told him she was going to talk to [C.] about appearing. The stepfather said he would give C. the message.

Allen tried several times to contact C. over the weekend of November 5 and 6.

Monday, November 7. Allen called C.s parents house in Sacramento and spoke to C.s mother, who told Allen that C. was at a friends house in Fairfield. The mother gave Allen C.s new cell phone number. Allen called that number. C. answered, but hung up as soon as Allen said hello. Allen called back and left a message for C. that she was needed in court at 1:00 p.m. Tuesday, November 8. Allen offered to provide C. with a ride to the courthouse. Allen called back a few more times, with negative results. Throughout the day Allen left numerous messages for C.

Allen then called C.s mother back and told the mother she had been trying to reach C. all day and couldnt get through to her. The mother did not know where C. was, but told Allen that C. had called that day and told her mother that she knew she had to be in court the next day. The mother did not know why C. had not called Allen back. At the mothers suggestion, Allen called C.s stepfather at another number. The stepfather did not know where C. was but said he would relay the message when he saw her. He also told Allen that he had given C. the message over the weekend, after the first time he had spoken with Allen.

On November 7, Allen called C., her mother, and her stepfather.

Tuesday, November 8. Allen began in the morning trying to call C. on her cell phone. She called C. throughout the day and left numerous messages that C. was due in court at 1:00 p.m. A female domestic violence sexual assault detective also left messages for C. Allen was fairly sure she called C.s mother on the 8th as well. She did not remember calling C.s stepfather.

At approximately 1:15 p.m., C. called Allen on Allens cell phone. C. said, I cant explain why I havent called you yet, but Im wondering if its too late, and if it is too late, I just want to apologize. C. asked Allen to call her back and hung up. Allen immediately called C. back, but never heard back from her.

Trial was continued to Thursday, November 10.

Wednesday, November 9. Allen called Daesha P., a woman that is listed in the original report as being C.s support person when she came to testify. Daesha had not heard from C. for three months. Allen also called another investigator with the Sonoma County District Attorneys office, and had him locate the name of C.s child. The investigator checked local schools to see if the child was registered, but the child was not.

Allen left numerous messages for C. Allen also called C.s defense attorney in the Solano County action, Mr. William Conwell. Allen told Conwell what was going on, and he offered to call C. Conwell also told Allen that he appeared with C. in Solano County on November 3, and C. was aware of the upcoming court date in defendants case. Conwell said that C. seemed fine and very well-adjusted and happy and had no problems with the upcoming court date. He said he would send his own investigator to the confidential address that he had to contact C., and would tell C. to call Allen. The investigator went to the address on Thursday, November 10, the date of the due diligence hearing.

Allen called the Suisun City Police Department and asked them to go by the house of C.s ex-boyfriends mother in Suisun City. A police officer went to that address and found the grandmother and caretaker of C.s child. Allen spoke with the grandmother who said she had received the subpoena sent to that address.[8] The grandmother called C. when the subpoena arrived and told C. about it, and C. said, I know all about that, thats my Sonoma County case. C. said she would be down to get the child.

Allen ran a records check on C.s cell phone number. It came back to an address in Fairfield.

Thursday, November 10. This is the date of the due diligence hearing, which began at 3:45 p.m.

Allen continued her efforts to contact C. on the morning of the 10th. She sent an investigator to the Fairfield address associated with C.s cell phone number. A woman came to the door and identified herself as someone other than C., said she had no idea who C. was, and had only been living there for three months. The investigator saw mail with the womans name on it, along with the Fairfield address, in a car parked in front of the house.

Allen concluded the Fairfield address was not C.s, and obtained a phone number that corresponded to the subscribing information on the cell phone account, which was under a name other than C.s. Allen called that number on the morning of the 10th. She reached the voicemail of a woman who sounded different than C. and used a different name.

Allen had an investigator check the Solano County jail system for C., with negative results. The investigator went to the Solano County Sheriffs Office and asked for contact information on C. The office gave the investigator two phone numbers: one was the number of the grandmother in Suisun City, to whom Allen had already spoken; the other was to a former homeless shelter.

Attorney Conwell sent his investigator to the confidential address he had for C. The address was in Sacramento. The investigator could not make contact with anyone inside, heard nothing from inside the house, and saw a newspaper out front. He left a message asking C. to call him and to call Allen.

At 9:36 a.m., Allen received a phone call from an unidentified number. It was C. She asked Allen to stop sending people to find her. She spoke rapidly and Allen wasnt able to talk to her. C. hung up. Allen tried to use *69 to trace the number, but was unable to do so.

At 3:15 p.m., a half-hour before the due diligence hearing, C. again called Allen and again asked Allen to stop sending people to look for me. She also asked Allen to stop sending people to the Suisun City address, where her child lived in the care of the grandmother, because hell get taken away from me and I wont be able to see him. Again, C. spoke rapidly and Allen wasnt able to speak with her. Again, C. hung up.

Allen then received a call from a process server who had been sent by the Sacramento District Attorney, at Allens request, to the Carneros Creek address which was listed on C.s drivers license. The process server made contact with C. inside the house and served her with a subpoena for Monday, November 14.

Allen called the number of the Carneros Creek house and spoke to C.s stepfather. He put C. on the phone. Allen spoke briefly to C., who said, I want you to stop looking, please, . . . stop looking for me, please dont send anybody to my babys . . . address. Allen asked C. to please . . . come to court on Monday. C. replied, I will think about it. . . . Just dont call my parents house anymore.

The trial court found that the efforts the District Attorneys office has gone to to obtain the appearance of this witness, including subpoenaing the witness today, would indicate to me that due diligence has been established.

On Monday, November 14, C. failed to appear for defendants trial. The court found that C. was unavailable because the People exercised due diligence to secure her appearance. Her preliminary hearing testimony was read to the jury. The defense expressed concern about its inability to impeach non-testifying C. with a criminal matter that arose after she testified at the preliminary hearing. To remedy that impairment, the trial court advised the jury at the conclusion of the preliminary hearing testimony that in August of 2005, a prosecution was instigated against the witness that you just heard the testimony from, C., and that prosecution was instituted based on charges of possession of stolen property and conspiracy that she was alleged to have committed with a co-defendant.

The trial court properly found C. to be unavailable under the Evidence Code and properly admitted her preliminary hearing testimony.

Evidence Code section 240 (section 240) defines the phrase unavailable as a witness.  With one exception not applicable here,  unavailable as a witness means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process. (Italics added.)

Building on section 240, Evidence Code section 1291, subdivision (a)(2) (section 1291(a)(2)) provides that [e]vidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

Thus, under the California law of evidence former testimony is admissible if (1) the declarant is unavailable and (2) the party against whom the former testimony is offered had the right and the opportunity to cross-examine at the prior proceeding. This two-pronged requirement of section 1291(a)(2) satisfies the confrontation clause. (People v. Wilson (2005) 36 Cal.4th 309, 340-341 (Wilson); see Crawford, supra, 541 U.S.at pp. 59, 68; People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).)

Defendant concedes he had the right and the opportunity to examine C. at the preliminary hearing. This concession is proper. Our Supreme Court has routinely allowed admission of the preliminary hearing testimony of an unavailable witness. [Citation.] (People v. Smith (2003) 30 Cal.4th 581, 611 (Smith).) The rationale for the routine admission is that a criminal defendants interest and motive for cross-examination at the preliminary hearing is similar to that at trialand does not have to be identical. (People v. Carter (2005) 36 Cal.4th 1114, 1172-1173.)

Defendant argues that the trial court should not have found C. unavailable. We disagree. The trial court properly treated this case as arising under subdivision (5) of section 240, which required the court to determine whether the People had exercised reasonable diligence but ha[d] been unable to procure [C.s] attendance by the courts process. The court conducted a thorough due diligence hearing and concluded that the People had exercised due diligence. We independently review that finding. (Cromer, supra, 24 Cal.4th at pp. 892-893, 901.)

The term due diligence is incapable of mechanical definition, but connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. (People v. Linder (1971) 5 Cal.3d 342, 346-347.) Our Supreme Court has repeatedly reaffirmed this language. (See Wilson, supra, 36 Cal.4th at p. 341; Cromer, supra, 24 Cal.4th at p. 904.)

The record supports the finding of due diligence. Over three weeks before trial, District Attorney Investigator Allen sent a subpoena to C.s last known address. Allen sent a second subpoena to the Carneros Creek address in Sacramento, which was C.s drivers license address. On October 3, 23 days before trial, Allen called C.s defense attorney in the Solano County matter, obtained C.s cell phone number, and spoke to C. about defendants upcoming trial. C. willingly corrected the minor error in the address used for the Sacramento subpoena, asked for a third subpoena to be sent to her grandmothers in Suisun City, and gave Allen additional contact information. C. affirmed she would comply with a subpoena.

Allen heard from C. about two weeks later. There was no indication C. contemplated noncompliance. C. contacted Allen on October 20, and expressed some concern over a conflict between defendants trial and her court date in Solano County. Allen assured C. there should be no conflict. C. affirmed that she would stay in touch with Allen.

The two spoke again on October 30, with C. initiating the contact. C. said she was returning to Sacramento from Redding in anticipation of her court date. Allen confirmed that she still had valid contact information for C.

On November 4, the first day of the Peoples case-in-chief after the selection of the jury, Allen called the Sacramento home of C.s parents and left a message about her attendance at trial. There was still no indication C. contemplated not complying with the subpoena.

After several attempts at contact over the weekend, Allen called C.s mother on Monday, November 7, obtained a new cell phone number for C., and called. C. hung up. That day and the next Allen left numerous messages for C. and again spoke to C.s parents. When C. called Allen on the afternoon of November 8, C. said she wanted to apologize if it [was] too late, presumably to attend trial, and hung up. Allen immediately returned the call and could not reach her.

This appears to be the first time Allen had reason to believe that C., a previously cooperative witness, planned to not comply with the subpoena.

On November 9 and 10, Allen tried numerous and substantial methods to contact C., which we have detailed above. These involved record checks, jail population checks, and the services of C.s defense lawyers investigator. Allen received two calls from a now-recalcitrant C., urging Allen to stop looking for her. Each time C. spoke rapidly and hung up before Allen could effectively communicate. Allen could not reach C. on return calls.

When she was found and subpoenaed in Sacramento on November 14, Allen called C.s parents house and spoke to her. Allen asked C. to come to court. C. said she would think about it.

We consider Allens efforts to demonstrate persevering application, untiring efforts in good earnest, [and] efforts of a substantial character. (People v. Linder, supra, 5 Cal.3d at pp. 346-347.) We uphold the trial courts finding of due diligence.

Indeed, defendant does not directly challenge this finding. Instead, he argues that this case does not really involve subdivision (5) of section 240 at all, but rather subdivision (4)which bases unavailability on the courts inability to compel [the witnesss] attendance by its process.

Defendant refers us to Code of Civil Procedure section 1219, subdivision (b) (section 1219(b)), which provides: Notwithstanding any other law, no court may imprison or otherwise confine or place in custody the victim of a sexual assault for contempt when the contempt consists of refusing to testify concerning that sexual assault.

Defendant contends that the sole basis for the finding of C.s unavailability was this limitation on the courts ability to enforce C.s subpoena by incarceration. ~(AOB 26)~ Defendant argues that a finding of subdivision (4) unavailability based on section 1219(b), and the consequent use of prior testimony in lieu of live evidence, runs afoul of the right to confrontation. Defendant also makes a broader argument that section 1219(b) creates an entire class of presumptively traumatized victims whose testimony may be introduced at trial without the normal guarantees afforded by the Sixth Amendment confrontation clause.

Defendant vastly overstates the impact of section 1219(b) on this case. In the first place, section 1219(b) was not the sole basis for the trial courts finding of unavailabilitythe trial court did not invoke subdivision (4) of section 240, but rather subdivision (5). The trial court was entitled to independently base a finding of unavailability on subdivision (5). Section 240 states that a witness is unavailable for any of the five definitions in the statute. If the inability to incarcerate a noncomplying victim of a sex crime automatically precluded a finding of unavailability under subdivision (5), section 1291(a)(2) would be rendered meaningless in a sex crime case. Had the People never tried to secure C.s presence on the sole ground that they could not incarcerate her for noncompliance, that might be a different matterbut that is not the case here.[9]

And contrary to defendants claim, Code of Civil Procedure, section 1219, subdivision (b) does not create a class of victims whose privilege to be free from incarceration for contempt rides roughshod over the confrontation clause. The People are still obligated to secure the attendance of witnesses at trial, and must use due diligence to locate witnesses and secure their attendancepreferably voluntarily and without contempt proceedings. Victims are expected to obey proper subpoenas. A sex crime victim who balks at testifying can be informed that they can still be fined for contempt. (Cf. Smith, supra, 30 Cal.4th at p. 624.) In any case, the People in this case did not realize they had a recalcitrant victim until trial was well underwayhence, the issue of the inability to incarcerate arose rather late in the game.

Again, we stress that we doubt the People, in a sex crime case, can routinely ignore their due diligence responsibilities on the sole ground that, should a victim balk at subpoena compliance, the People would be powerless to incarcerate them pending their testimony. Such a Why bother? attitude might pose a Sixth Amendment issue, but that is not the case before us.

2. The Admission of the Tape of C.s 911 Call

Defendant contends that the court erroneously admitted the 911 tape because it was wholly, or at least partially, testimonial within the meaning of Crawford, supra, 541 U.S. 36,and Davis, supra, ___ U.S. ___ [126 S.Ct. 2266], and thus defendant was denied his right of confrontation.

For reasons we shall soon make clear, we need not discuss this issue at length. In Crawford, as reaffirmed by Davis,the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Davis, supra,___ U.S. ___ [126 S.Ct. at p. 2273], quoting Crawford, supra, 541 U.S. at pp. 53-54.)

In Davis, which involved a 911 call,the court held that Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, ___ U.S. ___ [126 S.Ct. at pp. 2273-2274], fn. omitted; see generally People v. Cage 40 Cal.4th 965.)[10]

Defendant contends that because C. did not testify at trial, her statements on the 911 tape should not have been admitted because they were testimonial at least insofar as they went beyond her location and medical emergency and entered the area of the facts of the incident and the identifying characteristics of her assailant.

But, as noted, the 911 statements would be admissible if (1) C. was unavailable as a witness at trial, and (2) defendant had the opportunity for prior cross-examination. In discussion of the previous issue, defendant has conceded (2) because he was able to cross-examine C. at the preliminary hearing.[11]

With regard to (1), defendant concedes that, in order to reach his argument on the admissibility of the 911 tape, this court would first have to accept his first argument: that C. was not legally unavailable to testify. Should this court uphold the judges finding that C. was unavailable, then the 911 call, even if testimonial, could still be admitted . . . .

Since we have concluded that the trial judge correctly found C. to be unavailable for trial, we accept defendants concession. The 911 tape was properly admitted because the twin prerequisites of unavailability and prior opportunity for cross-examination have been satisfied.

In any event, the trial court properly admitted the 911 tape as a spontaneous or excited utterance. C. was sitting on the floor and crying when the 911 call was made, having just fled from defendants sexual assaults. Pickett testified C. was screaming, frantic, and frightened. C. offered unsolicited comments as Pickett acted as an intermediary relaying C.s emotion-laden statements to the dispatcher. The trial court found that the 911 call was made in close temporal proximity to the assaults, which traumatized C. The court further found that C. was clearly under stress of excitement caused by her perception of these traumatic events. As such, C.s statements on the 911 tape were properly admitted as spontaneous declarations under Evidence Code section 1240.

B. ISSUES REGARDING VICTIMS RUTH & LINNIE

1. Sufficiency of the Evidence of the Rape of Ruth

Defendant contends there is insufficient evidence to support his conviction on Count IV, the forcible rape of Ruth. We disagree.

The standard of review of the sufficiency of the evidence to support a conviction is well known. (See People v. Mincey (1992) 2 Cal.4th 408, 432.) The sole function of the appellate court is to consider the evidence in the light most favorable to the judgment, presume in support of the judgment every fact that can be reasonably deduced from the evidence, and determine . . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. (Ibid.; see People v. Jones (1990) 51 Cal.3d 294, 314.) The evidence must be reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

As we noted above, Ruth testified that during defendants lengthy sodomization of her, defendants penis twice fell [into Ruths] vagina a couple of times, but he didnt want that. He wanted it back there. When asked how she knew what defendant wanted, Ruth replied, Because if he would have wanted it in my vagina, he would have left it in there. He knew. He knew. Ruth described the entries of defendants penis into her vagina during the lon