P. v. Zepeda

Filed 9/26/07 P. v. Zepeda CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Jesus Aguirre Zepeda, Jr., appeals a judgment after his conviction for rape (Pen. Code,  261, subd. (a)(2)),[1] rape committed during the commission of burglary ( 261, subd. (a)(2), 667.61, subd. (c)), sexual penetration by a foreign object during the commission of a burglary ( 289, subd. (a)(1), 667.61, subd. (c)), and forcible oral copulation during the commission of a burglary ( 288a, subd. (c)(2), 667.61, subd. (c)). The trial court discharged a juror during trial and admitted testimony from a sexual assault response team (SART) nurse. We affirm.

FACTS

Jennifer F. went to bed with Justin, her boyfriend. While they were sleeping Zepeda, Jennifer's ex-boyfriend, entered her home at 3:00 a.m. He had no permission to be there. Zepeda went to the bedroom and ordered Justin to "get out." After Justin left Zepeda told Jennifer, "you had sex with him you will have sex with me." Jennifer testified that Zepeda repeatedly raped her, forced her to submit to oral copulation and he inserted his finger in her vagina. During one the attacks Zepeda "threw [her] down on the carpet."

Barbara L., Jennifer's mother, testified that Jennifer called her and told her that Zepeda had raped her. Jennifer was crying and her voice "sounded like somebody in shock." When Barbara L. saw her shortly after the incident Jennifer was "shaking," "disheveled" and "had no color."

Police Officer James Stetson testified that when he arrived at the scene Jennifer appeared "visibly shaken." She had scratches and "a [rug] burn on her back."

Judy Malmgren, a board certified SART nurse, testified that she examined Jennifer. "Both of her labia minora . . . on the vagina . . . were very swollen, very red," and Jennifer experienced pain when Malmgren touched those areas. "She also had an abraded area and tenderness at an area of the vagina called the posterior fourchette." Malmgren said, "that is the most likely place for someone to receive an injury" when the other person is not "cooperating with having intercourse." It is the most common injury of sexual assault victims. Malmgren applied a toluidine blue dye and observed "breaks in the skin" in the posterior fourchette. There was also "redness there between the urethral opening and the hymen." Malmgren said consensual sex acts may "result in injuries to a vagina." She was not able to conclude that Jennifer "was definitely raped," and her injuries were "superficial."

But the injuries were consistent with "what [Jennifer] said happened to her" and were "consistent with sexual assault." Jennifer said she experienced a rug burn during the attack and Malmgren saw redness near her shoulder blades. She told Malmgren that she scratched Zepeda's chest during the attack. Malmgren took a "swab" from Jennifer's right breast because she claimed Zepeda had kissed or licked her there.

Merce Ramos, a friend of Zepeda's, testified that after Zepeda had been charged with rape he met with him. Zepeda confided to Ramos that he "felt bad" and said, "I did wrong" in the incident with Jennifer. In that conversation Zepeda never suggested that Jennifer had "lied to the police" or was "framing" him.

Sarah Calvin, a Department of Justice criminalist, testified that the swab taken from Jennifer's right breast showed the presence of Zepeda's DNA.

In the defense case Zepeda testified that Jennifer had given him a key to her residence. He entered her home using his key and did not knock on the door. He went upstairs to the bedroom and saw a man in Jennifer's bed. Zepeda "told him to get out." The man left and Jennifer told Zepeda, "get the F out of her house." She repeatedly yelled and screamed at him to get out. Zepeda put his arms around her to "calm her down." But she "broke free" and threw a lamp at him which hit him and he fell to the floor. He grabbed her leg and "she fell down." She eventually calmed down. They went downstairs and "talked about [their] whole relationship" and then they both fell asleep. He left at 8:00 in the morning. He did not assault her and did not have sex with her.

On cross-examination Zepeda said he "knocked on the door" before entering, he did not have a key, but the door was unlocked.

Stephen Estner, M.D., testified that the "history" Jennifer gave to Malmgren about the attacks was not consistent with the medical findings. He said that photographs of Zepeda's chest showed there was insufficient scratching on his chest to be consistent with her allegations. On cross-examination he said he had prepared a report which stated that Jennifer's account was consistent with the medical "findings."

Donna Ingram, a nurse, testified she examined Zepeda at the request of the police and prepared a report. A police photographer took pictures of Zepeda during the examination. She said that she saw only a bruise below his eye and abrasions below his knees. On cross-examination she said that the photographs taken during the examination showed "bruising" on Zepeda's chest.

Discharging Juror Number 12 During Trial

After the first witness testified, Juror No. 12 advised the court that he just now realized that he knew Zepeda who was in the same line of business as he. Juror No. 12 said he could be fair. The court thanked him for this disclosure.

Juror No. 12 gave the court a letter from his psychologist, Dr. Decker. In the letter, Dr. Decker wrote that Juror No. 12 is a "Vietnam veteran, currently receives a service-connected disability for [Post Traumatic] Stress Disorder (PTSD) through the U.S. Department of Veterans Affairs. [His] PTSD symptoms are being seriously exacerbated by his current jury duty. [He] should be immediately excused from his current jury duty, and due to the chronic nature of his PTSD should not be considered for any future jury duty."

Dr. Decker also telephoned the court to confirm that Juror No. 12 was his patient and that he had PTSD symptoms. Juror No. 12 told the court that his PTSD symptoms had been inactive, but the "events and descriptions of events are bringing up all sorts of very uncomfortable situations for me." He also said that he remembered that his wife knew Jennifer F.

Zepeda's trial counsel said that Juror No. 12 should be disqualified because of the information provided by Dr. Decker and because of the juror's knowledge about Zepeda and Jennifer. The court discharged Juror No. 12.

DISCUSSION

I. Discharging Juror Number 12

Zepeda contends the court erred in discharging Juror No. 12 during trial. To preserve this issue on appeal a defendant must have objected to the decision to excuse the juror at trial. (People v. Holt (1997) 15 Cal.4th 619, 656.) Here Zepeda did not object. In fact, he requested that juror number 12 be excused and replaced by an alternate juror. Because of this he may not claim error on appeal. (Ibid.) But even on the merits the result is the same.

Zepeda claims there were no valid grounds to discharge juror number 12. We disagree. A juror may be discharged if he or she is "'unable to perform his or her duty.'" (People v. Holloway (2004) 33 Cal.4th 96, 124.) "[B]oth trial-related and non-trial-related stress can provide good cause for discharging a juror." (People v. Diaz (2002) 95 Cal.App.4th 695, 703.)

Here the juror's psychologist told the court that the juror's PTSD symptoms were "being seriously exacerbated" by his jury service. From Juror No. 12's testimony the court could reasonably infer that he was unable to control his emotions because of his medical condition. Because this would inhibit his ability to perform as a juror, removing him from the jury was proper. (People v. Diaz, supra, 95 Cal.App.4th at p. 703.) Moreover, the trial court had other grounds to discharge Juror No. 12 because he knew the defendant. (People v. Hecker (1990) 219 Cal.App.3d 1238, 1245.)

II. Admitting the Testimony of the SART Nurse

Zepeda contends the trial court erred by admitting the testimony of the SART nurse. We disagree.

"We apply an abuse of discretion standard in reviewing a trial court's decision to admit the testimony of an expert." (People v. Prince (2007) 40 Cal.4th 1179, 1222.) "[T]he pertinent question is whether, even if jurors have some knowledge of the subject matter, expert testimony would assist the jury." (Ibid.)

Zepeda claims that allowing Malmgren to testify was error because an expert "cannot express an opinion concerning the guilt or innocence of the defendant." But Malmgren did not render such an opinion. She testified about Jennifer F.'s injuries. A nurse who is properly qualified as an expert may testify about a victim's injuries. (People v. Rance (1980) 106 Cal.App.3d 245, 255.)

Zepeda contends the court should not have allowed Malmgren to render the opinion that Jennifer's injuries were consistent with sexual assault. We disagree. "[A]n expert medical witness is qualified 'to give an opinion of the cause of a particular injury on the basis of the expert's deduction from the appearance of the injury itself.'" (People v. Mendibles(1988) 199 Cal.App.3d 1277, 1293.) Experts may therefore testify about whether a victim's injuries were consistent with sexual assault. (Id., at p. 1295.) "[T]he diagnosis of sexual abuse or rape from the observation of certain marks or scarring is nothing new." (Ibid.)

In People v.Rance, supra, 106 Cal.App.3d at page 254 the Court of Appeal held that an emergency room nurse with sufficient experience examining wounds could render the opinion in a sexual assault case that the victim "'. . . had physical violence put upon her by someone else.'"

Here Malmgren was a Board Certified SART nurse with years of experience specializing in the area of sexual assault. She said Jennifer's injuries were consistent with those suffered by sexual assault victims. Zepeda has not shown that she lacked the qualifications to testify as an expert or that the court erred by admitting this testimony. (People v. Mendibles, supra, 199 Cal.App.3d at p. 1295; People v. Rance, supra, 106 Cal.App.3d at p. 255.) Zepeda claims her testimony was irrelevant because she referred to Jennifer's injuries as "superficial." But he omits that she testified that those injuries were also "consistent with sexual assault."

Zepeda contends the court improperly allowed Malmgren to vouch for Jennifer's credibility. "The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience . . . ." (People v. Coffman (2004) 34 Cal.4th 1, 82.) Zepeda notes that the prosecutor asked Malmgren, "Were your physical findings consistent with [Jennifer's] history that she was raped?" She responded, "They were consistent with a history that she gave me, yes." The prosecutor asked, "And the history she gave was that she was raped, is that correct?" Malmgren said, "Yes." Zepeda argues that this shows that Malmgren was telling jurors that she believed Jennifer's account that Zepeda raped her. But Malmgren carefully qualified her answer. She went on to say, "We can't say that yes, someone was definitely raped, but what I am saying is her injuries were consistent with what she said happened to her in those physical locations."

Moreover, Zepeda has not shown a reasonable probability that excluding Malmgren's opinion testimony would have changed the result. The jury did not find Zepeda to be credible. His testimony was contradictory. On direct he said he entered Jennifer's home with his key and did not knock. But on cross-examination he said he did not have a key and did knock. His testimony was also impeached by his admission to Ramos. Zepeda testified that he "never got on" Jennifer's bed. But the prosecution introduced DNA evidence showing his blood stains were on the bed sheets.

Zepeda's expert, Dr. Estner, was impeached when he admitted on cross-examination that he prepared a report stating that Jennifer's account of the rapes was consistent with the medical findings. Jennifer's labia minoras were red and swollen and her posterior fourchette was abraided. Officer Stetson's and Barbara L.'s testimony about Jennifer's appearance supported the prosecution's claim that she had been attacked. The redness near her shoulder blades supported her claim that she experienced a rug burn during the attack. Her statement that she scratched Zepeda's chest was supported by Ingram's testimony, and DNA evidence supported her claim that Zepeda licked her breast.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Christopher A. Darden for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Michael R. Johnson, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All further references are to the Penal Code unless otherwise specified.