Filed 5/24/16 P. v. West CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                            C079419

                   Plaintiff and Respondent,                               (Super. Ct. No. 14F08106)

         v.

WILLIE CLYDE WEST,

                   Defendant and Appellant.




         A jury found defendant Willie Clyde West guilty of rape (Pen. Code, § 261, subd.
(a)(2)),1 assault with a deadly weapon (§ 245, subd. (a)(1)), forcible oral copulation
(§ 288a, subd. (c)(2)), forcible penetration with a foreign object (§ 289, subd. (a)(1)),
corporal injury on a cohabitant (§ 273.5, subd. (a)), and false imprisonment (§ 236). In a
bifurcated proceeding, the trial court found true the special allegation that defendant had
served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced defendant to an


1 Undesignated statutory references are to the Penal Code.



                                                             1
aggregate term of 25 years in state prison. The trial court also imposed various fines,
fees, and assessments.

       On appeal, defendant contends as follows: (1) trial counsel rendered ineffective
assistance of counsel by failing to object to hearsay testimony; (2) the trial court erred by
allowing testimony that exceeded the scope of the “fresh complaint” doctrine; (3) the trial
court erred by failing to stay the sentence imposed for the assault with a deadly weapon
conviction under section 654; and (4) the trial court improperly imposed a booking fee
and a jail classification fee. We disagree and shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In March 2014, defendant and the victim, D.S., were living together in
Sacramento. The victim described the relationship as “friends with benefits.”

       In December 2014, the victim, a friend (Rene M.), and defendant attempted to
engage in a “threesome” but were unsuccessful because defendant could not get an
erection. After dropping Rene off at her home, defendant became angry and emotional.
During the drive home, he yelled at the victim and struck her in the face with the back of
his hand, causing her nose to bleed. When they arrived home, defendant continued to
yell at the victim. Defendant also hit the victim in the head with his fist, whipped her
with a belt, and struck her with a shoe and a metal pole. During the attack, defendant
repeatedly told the victim, “How dare you.”

       After beating the victim for about an hour, defendant ordered the victim to remove
her clothes. She removed her pants and defendant put baby oil on her vagina. Defendant
then grabbed a screwdriver and inserted the handle into the victim’s vagina. Defendant
also inserted the handle of a hairbrush into her vagina. The victim cried and repeatedly
begged defendant to stop. Defendant, however, did not stop; instead, he inserted his
penis into the victim’s vagina for about five minutes. He then resumed beating the



                                              2
victim. He also put the hairbrush, the screwdriver, and a remote control inside her
mouth. Eventually, defendant left the bedroom and went into the living room. When he
returned, he was carrying what appeared to be a metal pole that he used to beat her legs
and shins, as she raised them in an attempt to block the blows. He then left the bedroom
and returned again, this time with a knife. He straddled the victim and pointed the knife
at her chest. He then demanded oral sex from the victim. In fear, the victim complied.2

       Around 7:00 p.m., defendant went to work. Before leaving, he told the victim not
to leave the apartment and threatened to “fuck [her] up” if she did. After defendant left,
the victim met Rene M. at a nearby store. She told Rene that defendant had hit her and
stuck things in her vagina. Rene took the victim to a friend’s house to photograph her
injuries. The victim then went back to her apartment and fell asleep.

       Defendant returned from work after 3:00 a.m. He woke the victim up and again
said, “How dare you.” He told her that she would be sleeping on the floor from now on,
and then kicked and choked her. He also spit in her face. When defendant fell asleep,
the victim went to Rene M.’s house and called the police.

       The county sheriff’s deputy who responded to Rene M.’s house observed bruises
on the victim’s legs, back, face, and head. The deputy also observed that the victim was
visibly shaken and crying. Angela Rosas, M.D., of Sacramento’s sexual assault response
team conducted a sexual assault examination on the victim. She observed abrasions
and/or bruises on the victim’s shins, thighs, legs, arms, back, buttocks, head, jaw, and
forehead. She also observed scratches and abrasions on the victim’s neck consistent with
strangulation. Dr. Rosas, however, did not find any signs of trauma to the victim’s
vagina or anus.



2 Although she was not entirely certain, the victim said that she also performed oral sex
on defendant prior to the “knife incident.”


                                              3
       Defendant was arrested and interviewed by a sheriff’s detective at the county jail.
During his interview, defendant acknowledged that he was embarrassed about the failed
threesome, and admitted that he had slapped the victim after dropping Rene M. off at her
house. He also admitted that he “whooped” the victim for about 10 minutes with a belt
when they got home. He claimed that he had consensual sex with the victim and then
went to sleep. Defendant stated that he woke up later and was still furious about the
threesome. He said that he told the victim to “get on her fucking knees and suck [his]
dick,” and then went to sleep after she did so. Defendant admitted that he woke up a
couple of hours later, around 3:00 a.m., and “whooped” the victim with two belts,
slapped her, and “put the screwdriver in her.” He also admitted to hitting the victim with
a shoe and a “plastic” “stick thing,” like a window “blind[s]” lever. Defendant, however,
denied hitting her with a metal pole (as alleged in count four), or that he threatened the
victim or used force during sex. He stated that the victim never said “no.”

       In April 2015, a second amended information was filed charging defendant with
10 counts: rape (§ 261, subd. (a)(2)—count one); assault with a deadly weapon, a knife
(§ 245, subd. (a)(l)—count two); assault with a deadly weapon, a belt (§ 245, subd.
(a)(1)—count three); assault with a deadly weapon, a metal pole (§ 245, subd. (a)(l)—
count four); two counts of forcible oral copulation (§ 288a, subd. (c)(2)—counts five &
six); two counts of forcible penetration with a foreign object (§ 289, subd. (a)(1)—counts
seven & eight); corporal injury on a cohabitant (§ 273.5, subd. (a)—count nine); and false
imprisonment (§ 236—count ten). It was also alleged that defendant had served a prior
prison term (§ 667.5, subd. (b)) for inflicting corporal injury on a spouse (§ 273.5).

       Following a jury trial, defendant was found guilty of the charges in counts one,
three, five, seven, nine and ten. He was found not guilty of the charges in counts two,
four, and six. Count eight was dismissed after the jury was unable to reach a verdict. In




                                              4
a bifurcated proceeding, the trial court found true the special allegation that defendant
had served a prior prison term.

       The trial court sentenced defendant to an aggregate term of 25 years in state
prison. The trial court also imposed various fines, fees, and assessments, including a
$382.22 booking fee (Gov. Code, § 29550.2) and a $61.75 classification fee (ibid.).

       Defendant filed a timely notice of appeal.

                                      DISCUSSION

1.0    Ineffective Assistance of Counsel

       At trial, Dr. Rosas testified as an expert in forensic examinations. She concluded
that the victim’s injuries were consistent with a sexual assault. In reaching this
conclusion, Dr. Rosas relied on the victim’s statements and her examination of the
victim. During her testimony, Dr. Rosas described the details the victim had provided
her about how the sexual assault occurred. On appeal, defendant contends that trial
counsel rendered ineffective assistance of counsel because he failed to object to
Dr. Rosas’s testimony and her expert report on hearsay grounds. According to defendant,
there is no hearsay exception that would allow the admission of Dr. Rosas’s testimony or
the statements in her report discussing the victim’s description of his actions.3 We
disagree.

       To establish a claim of ineffective assistance of counsel, defendant must prove that
(1) trial counsel’s representation was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to defendant. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai); see Strickland



3 Defendant asserts that Dr. Rosas’s testimony and her expert report contain the same
inadmissible hearsay.


                                              5
v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674].) “Prejudice is shown
when there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (People v. Williams
(1997) 16 Cal.4th 153, 215.) If defendant makes an insufficient showing on either one of
these components, his ineffective assistance claim fails. (People v. Holt (1997)
15 Cal.4th 619, 703; see Strickland, supra, at p. 687 [80 L.Ed.2d at p. 693].)

       “It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance only
if (1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (Mai, supra,
57 Cal.4th at p. 1009.) As a general matter, because the failure to object to evidence
usually involves a tactical decision on counsel’s part, it rarely establishes a counsel’s
incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158; see People v. Boyette
(2002) 29 Cal.4th 381, 433.)

       “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless there
exists an exception to the rule that permits its admission. (Id., subd. (b).)

       “California law permits a person with ‘special knowledge, skill, experience,
training, or education’ in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801).” (People v. Gardeley
(1996) 14 Cal.4th 605, 617.) Expert testimony may be “premised on material that is not
admitted into evidence so long as it is material of a type that is reasonably relied upon by


                                              6
experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b);
[citations].) . . . [¶] So long as this threshold requirement of reliability is satisfied, even
matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion
testimony. [Citations.] And because Evidence Code section 802 allows an expert
witness to ‘state on direct examination the reasons for his opinion and the matter . . . upon
which it is based,’ an expert witness whose opinion is based on such inadmissible matter
can, when testifying, describe the material that forms the basis of the opinion.”
(Gardeley, at p. 618; see People v. Cooper (2007) 148 Cal.App.4th 731, 746 [“It is the
long-standing rule in California that experts may rely upon and testify to the sources on
which they base their opinions [citations], including hearsay of a type reasonably relied
upon by professionals in the field.”].)

       Here, because the statements made by the victim to Dr. Rosas regarding
defendant’s conduct were not offered for their truth but only for the limited purpose of
explaining the basis of Dr. Rosas’s opinions, the statements were not inadmissible
hearsay. (See Cooper, supra, 148 Cal.App.4th at p. 747 [“Hearsay relied upon by experts
in formulating their opinions is not testimonial because it is not offered for the truth of
the facts stated but merely as the basis for the expert’s opinion.”].) Thus, we cannot fault
counsel for not making what would have been a futile objection. Moreover, defendant
failed to establish prejudice. In light of the jury instructions4 and the evidence presented
at trial, including defendant’s admissions during his jail interview and the photographs
taken of the victim’s body, it is not reasonably probable that absent the alleged error by




4 In accordance with CALCRIM No. 332, the jury was instructed that in evaluating
expert testimony, it must decide whether the information on which Dr. Rosas relied was
“true and accurate,” and that it may disregard any opinion it finds “unbelievable,
unreasonable, or unsupported by the evidence.”


                                               7
trial counsel, a result more favorable to defendant would have been reached.
Accordingly, defendant’s claim of ineffective assistance of counsel fails.

2.0    Fresh Complaint Doctrine

       Defendant contends the trial court erred by allowing testimony in violation of the
fresh complaint doctrine. According to defendant, Rene M.’s testimony about the
victim’s description of the sexual assault exceeded the scope of the doctrine. We
disagree.

       Under the fresh complaint doctrine, a trial court may admit evidence of an
extrajudicial complaint made by a victim of a sexual offense for a nonhearsay purpose.
(People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).) In Brown, our Supreme Court
explained that “proof of an extrajudicial complaint, made by the victim of a sexual
offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay
purpose—namely, to establish the fact of, and the circumstances surrounding, the
victim’s disclosure of the assault to others—whenever the fact that the disclosure was
made and the circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred.” (Ibid.)

       Evidence of a fresh complaint may be relevant because “the circumstances under
which the complaint was made may aid the jury in determining whether the alleged
offense occurred. Furthermore, admission of evidence that such a prompt complaint was
made also will eliminate the risk that the jury, if not apprised of that fact, erroneously will
infer that no such prompt complaint was made.” (Brown, supra, 8 Cal.4th at p. 761.)
However, the fresh complaint evidence should be “carefully limited to the fact that a
complaint was made, and to the circumstances surrounding the making of the complaint,
thereby eliminating or at least minimizing the risk that the jury will rely upon the
evidence for an impermissible hearsay purpose” (id. at p. 762)—that is, “as tending to
prove the truth of the underlying [sexual offense] charge . . . ” (id. at p. 763). The fact of

                                              8
the making of the complaint includes “evidence demonstrating that the complaint
‘ “related to the matter being inquired into, and [was] not a complaint wholly foreign to
the subject . . . .” ’ ” (Id. at p. 756.)

       We conclude that Rene M.’s testimony did not exceed the scope of the fresh
complaint doctrine. The details in Rene’s testimony about the sexual assault—i.e., the
victim told her that defendant “was hitting on her,” had hit her with a shoe, and stuck
some objects in her vagina, including a remote control, a brush, and a screwdriver—are
similar in nature to details that have been held acceptable in other cases. (See, e.g.,
People v. Butler (1967) 249 Cal.App.2d 799, 804 [victim stated that “the man was
sucking his thing”]; People v. Cordray (1963) 221 Cal.App.2d 589, 594 [victim stated
“he had pulled her pants down and he had kissed her between the legs”].) Therefore, the
trial court did not err in allowing the testimony. The admission of Rene M.’s statements
about the sexual assault was not an abuse of discretion. (People v. Alvarez (1996)
14 Cal.4th 155, 203 [abuse of discretion standard applicable].)

       But even assuming the trial court erred in allowing this testimony, the error was
harmless. In view of the evidence presented at trial, it is not reasonably probable that
defendant would have realized a more favorable result if the details in Rene M.’s
testimony about the sexual assault had been excluded. (People v. Ramirez (2006)
143 Cal.App.4th 1512, 1526 [applying reasonable probability standard to erroneous
admission of spontaneous statement hearsay evidence for hearsay purposes].) Indeed,
except for Rene M.’s testimony about defendant putting a remote control and brush in the
victim’s vagina, defendant admitted to the other details of her testimony regarding the
sexual assault. Furthermore, defendant was convicted on only one count of forcible
penetration with a foreign object, and he admitted to putting a screwdriver “in” the
victim.




                                              9
       Finally, we reject defendant’s cumulative error argument. Defendant claims that
the admission of Dr. Rosas’s and Rene M.’s testimony regarding the sexual assault
resulted in cumulative error because their testimony bolstered the victim’s credibility,
thereby making the victim’s description of the assault considerably easier to believe. “In
theory, the aggregate prejudice from several different errors occurring at trial could
require reversal even if no single error was prejudicial by itself. ‘[A] series of trial errors,
though independently harmless, may in some circumstances rise by accretion to the level
of reversible and prejudicial error.’ ” (In re Reno (2012) 55 Cal.4th 428, 483.) However,
when, as here, claims have been previously rejected on their substantive merits—i.e., no
legal error found—the claims cannot logically be used to support a cumulative error
claim because there was no error to cumulate. (See ibid.) Moreover, even assuming the
trial court erred as defendant contends, we conclude that such errors, when viewed in
combination, could not possibly have affected the jury’s verdict. (People v. Martinez
(2003) 31 Cal.4th 673, 704.)

3.0    Section 654

       Defendant contends that his conviction for corporal injury on a cohabitant and his
conviction for assault with a deadly weapon, a belt, were based on the same objective and
course of conduct. He therefore argues that the trial court erred by failing to stay his
sentence on the assault conviction. We disagree.

       Under section 654, subdivision (a), “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. . . .” “ ‘The proscription against
double punishment in section 654 is applicable where there is a course of conduct which
. . . comprises an indivisible transaction punishable under more than one statute . . . . The
divisibility of a course of conduct depends upon the intent and objective of the actor, and


                                              10
if all the offenses are incident to one objective, the defendant may be punished for any
one of them but not for more than one.’ [Citation.] ‘The defendant’s intent and objective
are factual questions for the trial court; [to permit multiple punishments,] there must be
evidence to support a finding the defendant formed a separate intent and objective for
each offense for which he was sentenced.’ ” (People v. Coleman (1989) 48 Cal.3d 112,
162; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

       “[A] finding that multiple offenses were aimed at one intent and objective does not
necessarily mean that they constituted ‘one indivisible course of conduct’ for purposes of
section 654. If the offenses were committed on different occasions, they may be
punished separately.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) “As our
Supreme Court has explained in referring to section 654, ‘a course of conduct divisible in
time, although directed to one objective, may give rise to multiple violations and
punishment.’ [Citation.] ‘This is particularly so where the offenses are temporally
separated in such a way as to afford the defendant opportunity to reflect and to renew his
or her intent before committing the next one, thereby aggravating the violation of public
security or policy already undertaken.’ [Citation.] This rule has been applied in
numerous instances when several crimes could broadly be described as part of an
overarching criminal plan, but were committed on different days.” (People v.
Kurtenbach (2012) 204 Cal.App.4th 1264, 1289.)

       We conclude the evidence does not show that section 654 applies to defendant’s
conviction for assault with a deadly weapon, a belt. The record reflects that defendant
struck the victim in the face with his hand on the drive home from Rene M.’s house. The
record also reflects that, after arriving home, defendant hit the victim with his hand and
other objects, including a belt. There was also evidence that defendant kicked, choked,
and spit on the victim after he had left the residence for about eight hours. During his jail
interview, defendant admitted to slapping the victim and “whooping” her with a belt on


                                             11
two separate occasions. Accordingly, because the evidence showed that defendant had
ample opportunity to reflect and renew his intent between the acts of violence against the
victim, this renewal justified the imposition of separate punishment for corporal injury on
a cohabitant and assault with a deadly weapon, a belt. (See People v. Felix (2001)
92 Cal.App.4th 905, 915 [“[M]ultiple crimes are not one transaction where the defendant
had a chance to reflect between offenses and each offense carried a new risk of harm”];
People v. Trotter (1992) 7 Cal.App.4th 363, 366-368 [two assaults on same victim one
minute apart may be punished separately].)

4.0     Booking Fee and Jail Classification Fee

        Defendant contends the trial court erred by imposing a booking fee and a jail
classification fee. However, because defendant failed to object to these fees below, he
has forfeited this issue on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 597-
599.)

                                      DISPOSITION

        The judgment is affirmed.


                                                           BUTZ              , J.


We concur:



        RAYE                , P. J.



        MAURO               , J.




                                             12
