P. v. Villafana

Filed 2/14/07  P. v. Villafana CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Henry Ramsey, Judge.  (Retired Judge of the Alameda Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)  Affirmed.

            John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

            A jury found defendant and appellant Felipe Villafana, Jr., guilty of rape (Pen. Code, § 261, subd. (a)(2))^[1] and forcible sodomy (§ 286, subd. (c)(2)).  The court sentenced defendant to state prison for six years.  On appeal, defendant contends:  1) the trial court erred in admitting the opinion of an expert witness who testified that the victim's injuries were consistent with a sexual assault; and 2) the court erred in admitting the expert witness's medical report.  We find no error and affirm.

FACTUAL BACKGROUND

            Between 10:00 and 11:00 p.m. on June 13, 2004, the victim, who was 17 years old, went with her cousin, Rebecca, and friends, Alexis, Glennie, and Denise, to Melvin Green's apartment.  Melvin, defendant, someone named Brandon, and two other women were there when they arrived.  The victim had never met any of them before.

            The victim talked to defendant that night, and he told the victim where he worked and how old he was.  The victim told defendant that she was 17 years old.  Defendant flirted with the victim throughout the night, but the victim ignored him because she thought he was too old.^[2]  The apartment door stayed open all the time because Rebecca, Denise, and Brandon kept going in and out of the apartment.  When the door was closed, it was not locked.

            The victim was bored and sat down on the couch to watch television.  Then she started falling asleep.  At around midnight, Glennie's boyfriend picked her up, so she left.  Rebecca and Brandon went to Jack in the Box.  Eventually, the other people started to leave too.  Alexis and Denise went to get the car, while the victim waited in the apartment.  Only Melvin, defendant, and the victim were left in the apartment.  Melvin went into his bedroom to answer the telephone.

            The victim was sitting on the couch under a blanket with her eyes closed, when she heard the door being shut and locked.  Then defendant pulled down the victim's pants and panties.  The victim covered her eyes and started crying.  Defendant repeatedly told her to stop crying.  Defendant lifted her legs and inserted his penis into her vagina.  The victim repeatedly told defendant to stop.  Defendant then inserted his penis into her anus.

            When Alexis, Rebecca, Denise, and Brandon returned to the apartment, the door was shut and locked.  Alexis and Rebecca knocked on the door for a while, and then started pounding on it.  They could hear the victim frantically weeping inside the apartment and knew something was wrong.  After about five minutes, Melvin opened the door.  The apartment was dark, except for the light in Melvin's bedroom.  The victim was on the couch adjusting her pants and was still crying.  Alexis asked, â€