Filed 5/9/14 P. v. Sanez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064020

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN300835)

DARWIN SANEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Aaron H.

Katz, Judge. Affirmed.

         Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Minh U. Le,

Deputy Attorneys General, for Plaintiff and Respondent.
         Darwin Sanez appeals his convictions of rape of an unconscious person (Pen.

Code, § 261, subd. (a)(4)),1 rape by foreign object of an unconscious person (§ 289,

subd. (d)), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)).

         On appeal, Sanez contends the court deprived him of a fair trial and due process of

law by permitting victim X.B. to testify that Edelmira Gomez told her Sanez raped X.B.

while she was asleep. Sanez contends the testimony was not relevant to any matter in

dispute, was double hearsay not within any hearsay exception, and the error was

prejudicial and requires reversal. We affirm the judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

         In December 2011, X.B. attended a party at the home of Lercy Zillman. Around

8:00 a.m., after X.B. consumed approximately eight to 10 alcoholic drinks, Zillman took

her to rest on a couch upstairs on the second floor. Zillman left and returned with a

blanket to cover X.B. When Zillman returned, X.B. was asleep facing the back of the

couch.

         After covering X.B., Zillman went into the kitchen on the second floor to make

coffee. Sanez was also in the kitchen and began talking to Zillman. Unexpectedly, Sanez

pinched Zillman's buttocks, which she interpreted as a sexual advance. When Zillman

jumped and moved away from Sanez, he asked, "Don't you like it when I touch you?

Why did you jump when I touched you? Don't you like it?"




1        All statutory references are to the Penal Code unless otherwise specified.
                                               2
      Zillman looked into the living room to check on X.B. and saw Sanez touching

X.B.'s arm by moving his hand from her right shoulder down to her right hand. Wanting

Sanez to know she was watching him, Zillman asked him if he was waiting for the

bathroom, which he replied he was. Zillman subsequently left the house around 8:30

a.m. and returned at 9:45 a.m. X.B. was sleeping in the same position when Zillman

returned.

      Around 10:15 a.m., Concepcion Diaz walked upstairs to the second floor to use

the restroom. Diaz saw a man wearing a purple shirt and a light-colored cap lift X.B.'s

dress, pull down her underwear, and insert his fingers into her vagina. Diaz assumed the

man was X.B.'s husband and went into the bathroom. Approximately 10 minutes later,

Diaz walked out of the bathroom and saw the man hunched over X.B. having sexual

intercourse with her. When Diaz approached the couch, the man attempted to close his

pants, but struggled because his penis was erect. The man wiped his hands on a nearby

blanket, walked away from the couch, and outside to the balcony. Diaz pulled up X.B.'s

underwear, pulled down her dress, and covered her with the blanket. When Diaz shook

her fingers at the man and told him, "No more," he went downstairs. Diaz subsequently

told her daughter, Maribel Mayers, and X.B.'s friend, Gomez, that she saw a man having

sex with X.B., and identified Sanez to Mayers.

      Shortly thereafter, Zillman walked upstairs and noticed X.B. lying in a fetal

position with her buttocks hanging off the sofa. In addition, she observed X.B.'s dress

was hanging off her shoulders and "she had something draped over her waist." Zillman

found this strange because "she'[d] been asleep for hours in the same position" and now

                                            3
she was "partially disrobed" and lying in a different position than she had originally been

in.

       The next day, Gomez informed X.B. that Sanez raped X.B. while she was asleep,

and suggested she take precautions. The following day, X.B. went to a health clinic for a

sexual assault examination. The examination revealed X.B. had a laceration, known as a

mounting injury, near the opening of her vagina--an injury that commonly occurs during

nonconsensual sex.

       An information charged Sanez with three counts: (1) rape of an unconscious

person (§ 261, subd. (a)(4)); (2) rape by foreign object of an unconscious person (§ 289,

subd. (d)); and (3) misdemeanor sexual battery (§ 243.4, subd. (e)(1)).

       On October 30, 2012, a jury found Sanez guilty on all three counts. His motion

for a new trial was denied. The court sentenced Sanez to a total term of six years: the

middle term of six years on count 1; the middle term of six years on count 2 to run

concurrent to count 1; and six months to run concurrent on count 3. Sanez filed a timely

notice of appeal.

                                       DISCUSSION

       A. Standard of Review

       The trial court has broad discretion to determine the admissibility of evidence. We

review the trial court's decisions on the admissibility of evidence under the abuse of

discretion standard. (People v. Williams (1997) 16 Cal.4th 153, 196-197 ["[o]n appeal, a

trial court's decision to admit or not admit evidence . . . is reviewed only for abuse of

discretion"]; People v. Rowland (1992) 4 Cal.4th 238, 264 ["abuse of discretion . . . test is

                                              4
proper when . . . the determination under attack concerns the admissibility of evidence"].)

A trial court's ruling will not be overturned "unless [it] exercised its discretion in an

arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of

justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

       B. Inadmissible Hearsay

       Sanez contends the court abused its discretion in allowing X.B. to testify about

Gomez's statement to her that she had been raped by Sanez. He contends the statement

was irrelevant for any nonhearsay purpose, and thus was inadmissible.

       At trial, X.B. testified she received a telephone call the day after the party from

Gomez, stating she wanted to meet X.B. in person and talk to her alone about an incident

at the party. X.B. testified Gomez told her Sanez raped her while she was asleep, and she

should be cautious. Although defense counsel objected to the testimony on the basis of

hearsay, defense counsel did not object on relevancy grounds.2

       Out-of-court statements offered to prove the truth of the matter asserted are

hearsay and are inadmissible unless they fall within an exception to the bar on hearsay

evidence. (Evid. Code, § 1200, subds. (a) & (b).) However, an out-of-court statement

need not be excluded as hearsay if it is offered for a purpose other than to prove the truth

of the matter asserted. (People v. Jablonski (2006) 37 Cal.4th 774, 820-821.) For

example, evidence of an out-of-court statement that explains the reaction of the listener



2      The People contend Sanez forfeited his relevancy argument on appeal because he
did not object to the testimony specifically on relevancy grounds. Because we reach the
merits of Sanez's contention, we do not address the People's claim.
                                               5
may be properly admitted. (People v. Turner (1994) 8 Cal.4th 137, 189-190, overruled

on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Scalzi

(1981) 126 Cal.App.3d 901, 906-907.) Evidence of a person's then-existing state of mind

is admissible as an exception to the hearsay rule when that evidence is relevant to prove

or disprove a material fact in the case. (Evid. Code, § 1250; People v. Rowland, supra, 4

Cal.4th at p. 262.)

       We reject Sanez's contention that the evidence of Gomez's statement to X.B. was

inadmissible hearsay. Here, the testimony was not offered to prove the truth of any facts

stated in the message--that Sanez raped X.B. while she was unconscious--but rather to

explain how she learned she was raped and her subsequent conduct of going to the health

clinic for a sexual assault examination.

       Moreover, the testimony was relevant because it went to X.B.'s state of

consciousness, a "disputed fact . . . of consequence to the determination of the action"

(Evid. Code, § 210), and essential to proving the prosecution's charge that Sanez raped

X.B. while she was unconscious. At trial, the parties did not stipulate X.B. was

unconscious at the time she was raped. While Zillman testified she saw X.B. lying in the

fetal position when she returned from the store--a position different from X.B.'s initial

position--defense counsel argued X.B. actually changed her body position herself.3




3      In his closing arguments, defense counsel argued X.B. was not unconscious at the
party: "I submit to you that Ms. [X.B.] was not that intoxicated. She said she was tired.
She said that the drinks gave her energy, that she had been dancing all night. She had to
walk upstairs again through the people sleeping on the floor and [lie] down again. That
                                             6
Whether or not X.B. was unconscious was essential to explain how she learned about the

rape and her subsequent behavior in response to that information. (See People v. Ervine

(2009) 47 Cal.4th 745, 777 (Ervine) [finding no abuse of discretion in admitting officer's

testimony about out-of-court statement because not offered for its truth, but rather to

explain officers' actions following receipt of the information].) Further, like the court in

Ervine,4 the judge provided limiting instructions to the jury and explained they were to

consider the testimony only for the purpose of explaining what behavior X.B. engaged in

following receipt of that information.5



explains why, when Ms. Zillman came back, [she] saw her in a fetal position. She's
changed herself."

4       In Ervine, the trial court instructed the jury on the limited purpose of considering
the admitted hearsay testimony: " 'Your first lesson, in the hearsay rule, ladies and
gentlemen, which I am sure you have heard of before. [¶] It simply means that, what
someone testifies as to what another told him, is usually hearsay evidence, right, because
we can't cross-examine that other person. We don't know whether it's true. [¶] But it
comes in not for whether or not what the person said is true, it comes to explain what the
person who heard it did, okay. [¶] So he's going to explain what he did in response to
what this person told him; but you do not--and so you receive it for that purpose only, to
explain what the officer may have done in response to this information, but you don't take
it as being for the truth of the matter stated by the person on the phone, okay. [¶] And
now this would be double hearsay. The dispatcher doesn't know what happened. She
heard it from somebody else, right. [¶] So you just have to keep in mind when you listen
to this kind of testimony, that when it's hearsay testimony like that, it's not being offered
to prove that those things are true.' " (Ervine, supra, 47 Cal.4th at pp. 774-775.)

5      Before admitting X.B.'s testimony about Gomez's statement to her, the judge
issued the following jury instructions: "Ladies and gentlemen . . . I'm going to let the
witness testify about a statement that she received. This is normally hearsay, but you'll
be allowed to consider it only for the purpose of explaining what behavior she engaged in
following receipt of that information." The jury is presumed to have "faithfully followed
the court's limiting instruction[s]." (Ervine, supra, 47 Cal.4th at p. 776.)

                                              7
       X.B.'s testimony was properly admitted for the nonhearsay purpose to explain the

effect the hearsay had on X.B. rather than to prove the truth of the matter asserted. In

addition, it was relevant to prove the prosecution's charge that X.B. was unconscious

during the rape. (See Evid. Code, § 210.) Therefore, the court did not abuse its

discretion in admitting X.B.'s hearsay testimony.

       C. Prejudicial Error

       Sanez contends the court prejudicially erred when it admitted X.B.'s hearsay

testimony. He contends the error was not harmless because the original declarant, the

eyewitness Diaz, is not credible and tends to fabricate sexual assault stories.6 In

addition, he contends the jury did not consider X.B.'s testimony for the limited purpose to

show its effect on the listener, but rather accepted her testimony identifying Sanez as her

rapist as true because it confirmed Diaz's testimony about seeing Sanez rape X.B.

       Even if the court erred in admitting X.B.'s testimony, we conclude the error was

not prejudicial. Given the substantial corroborative evidence to support Sanez's

convictions, it is not reasonably probable a more favorable verdict would have resulted

had the testimony been excluded. (See People v. Watson (1956) 46 Cal.2d 818, 836-837

[reversal required only if it is reasonably probable the defendant would have obtained a

more favorable result had the error not occurred].)



6      Because it is strictly within the " 'province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts upon which a determination
depends,' " we do not address Sanez's contention. (People v. Thornton (1974) 11 Cal.3d
738, 754 [quoting People v. Huston (1943) 21 Cal.2d 690, 693], disapproved on other
grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
                                              8
       At trial, Diaz provided eyewitness testimony that Sanez raped an unconscious

X.B. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [noting the uncorroborated

testimony "of a single witness is sufficient to support a conviction"], citing People v.

Allen (1985) 165 Cal.App.3d 616, 623.) Diaz testified she identified Sanez at the party to

Mayers as the man who raped X.B. and she identified him again at trial. She testified

about what Sanez was wearing when she saw him sexually assault X.B.--a purple shirt

and a light-colored cap--corroborated by a photograph taken at the party depicting Sanez

wearing a purple shirt and light-colored cap. In addition, Diaz specifically testified she

saw Sanez first digitally penetrate X.B. with his fingers before proceeding to rape her

while she was unconscious.

       Zillman also provided corroborative testimony of Sanez's guilt at trial. She

testified Sanez made sexual advances toward her when he pinched her buttocks, caressed

her arm and, when she jumped away, asked her, "Don't you like it when I touch you?"

Further, she testified to watching Sanez sexually touch X.B. while she slept by running

his hand from X.B.'s shoulder down to her hand while moaning in a sexual manner. Like

Diaz, Zillman also testified X.B.'s "buttocks were on the edge of the sofa," her dress was

off her shoulder, and her legs were exposed.

       Lastly, the nurse who examined X.B. at the health clinic testified X.B.'s sexual

assault examination revealed a laceration near the opening of her vagina called a




                                               9
"mounting injury," consistent with nonconsensual sexual activity.7 The nurse's testimony

provided evidence X.B. was not anticipating sexual activity when she received the injury,

which corroborates Diaz's testimony that X.B. was raped while she was unconscious.

       Considering the strong direct and circumstantial evidence against Sanez and the

court's limiting instruction to the jury to only consider X.B.'s testimony of Gomez's

statement to her for a limited purpose, we conclude it is not likely Sanez would have

received a better result had the testimony been excluded, and thus any error in admitting

X.B.'s hearsay testimony was harmless. (See People v. Watson, supra, 46 Cal.2d at

p. 836.)

       However, Sanez contends the court should apply the more stringent test of

Chapman v. California (1967) 386 U.S. 18, 24, which requires reversal unless we

conclude beyond a reasonable doubt the error was harmless, because X.B.'s testimony

was unreliable hearsay precluded by the due process clause. (See Chapman, at p. 24.)

The out-of-court statement was properly admitted for the limited purpose to explain

X.B.'s subsequent behavior and to explain how she learned about the rape. (See People v.

Turner, supra, 8 Cal.4th at pp. 189-190.)

       In any event, even were we to apply the Chapman standard of prejudice, we would

still conclude the court's alleged error in admitting X.B.'s hearsay testimony was harmless




7      At trial, the nurse, Patricia Secor, testified that a woman's body self-lubricates
when she is anticipating sexual activity. She testified that when a woman is not
anticipating sexual activity and "the penis passes first in its hardened state" into the
vaginal opening, mounting injuries may occur.
                                             10
beyond a reasonable doubt. As previously noted, the record provides substantial direct

and corroborative evidence to support Sanez's conviction.

                                    DISPOSITION

      The judgment is affirmed.




                                                              McDONALD, Acting P. J.

WE CONCUR:


O'ROURKE, J.


IRION, J.




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