Opinion
B157618
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY MORAGA, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
Mark Moraga appeals from the judgment entered following a jury trial in which he was convicted of rape, felonious assault, and assault with intent to commit rape, and a bifurcated court trial in which he was found to have suffered two prior felony convictions. He contends that the evidence was insufficient to support his conviction of rape and that an out-of-court statement by the victim and the opinion of a percipient witness should not have been admitted in evidence. We affirm.
BACKGROUND
In October 2001, Carole Austin was living in an apartment complex in Pomona that is adjacent to a strip mall. An alleyway behind the mall was visible through Austins bedroom window. For the preceding month or two, Austin had frequently seen a homeless woman sleeping in the alley. The woman was in her mid-50s and kept her possessions in a shopping cart.
Shortly after 10 p.m. on October 7, 2001, Austin heard the woman making sounds of distress. Austin looked out her window and saw two men, one of whom was later identified as defendant, standing close to the woman. Austin called 911 to report the incident. As she spoke with the 911 dispatcher, Austin reported that the men were "roughing [the woman] up a bit." Austin continued reporting her observations to the dispatcher, including descriptions of defendant and the other man.
In court, Austin testified that she saw defendant hit the woman twice in the face while the woman was in a reclining position. Defendant removed his pants and underwear. The woman was not wearing any pants and defendant "appeared to be raping her." As recounted by Austin, defendant "was on top of [the woman] and there was motion that indicated sexual intercourse. I could see his bare buttocks. I could see her knees." A police helicopter soon arrived in response to the 911 call. Defendant put his pants back on and walked away. Defendant and the other man were soon apprehended by the police.
Upon apprehending the assailants, Officer Marty Hinderliter interviewed the victim at the scene. The victim was wearing a long flannel shirt with no pants or underwear. She had blood on her face and a lump on her eye. The victim did not appear to be under the influence of alcohol or drugs but spoke in a rambling manner, ranging between lucid and incoherent. She said that she was trying to go to sleep when she became aware of two men. One of them covered her face and held her down. She believed he also hit her in the face. The other man pulled off her sweatpants and underwear.
The victim further told Hinderliter that one of the men had inserted his "fingers into her vagina" and also inserted "a flaccid penis in her vagina." Hinderliter "believed she said it wasnt hard, or it was limp. Something along those lines." The victim also "said she had been raped but it was okay because the Lord would punish them . . . ." When paramedics arrived, the victim refused to undergo a medical examination and did not permit officers to take any of her clothes as evidence. (The victim did not testify at the preliminary hearing or at trial.)
In addition to the foregoing, the prosecution presented evidence that in 1996 defendants then-21-year-old niece was awakened in bed by defendant pulling down the shorts in which she was sleeping. Defendant was nude from the waste down. Defendants niece ran out of the room.
Testifying in his own behalf, defendant stated he was acquainted with the victim, having previously seen her in the alley, and knew that she was homeless. After getting off work on the night in question, he smoked crack cocaine. While he was in the alley, the victim asked him for money to buy alcohol. He refused, and she offered to have sex with him in exchange for money. Defendant agreed to the exchange. As he was lowering his pants, he tripped, lost his glasses, and accidentally hit the victim in the face. A helicopter arrived before the sex act could occur and he walked away. Defendant also denied having removed his nieces shorts in 1996, claiming that he was fully clothed when he accidentally pulled down the blankets under which she was sleeping.
DISCUSSION
1. Sufficiency of the Evidence of Rape
Defendant first contends that the evidence was insufficient to establish the element of rape that a vagina be penetrated by a penis. The basis of the contention is Officer Hinderliters failure to conduct "further inquiry to establish [whether defendants] penis actually penetrated [the victims] vagina or merely touched it. And of critical importance, the victim told Hinderliter that someone had covered her face, punched her in the face and was holding her down. She could not see." The contention borders on the frivolous.
"Any sexual penetration, however slight, is sufficient to complete the crime [of rape]." (Pen. Code, § 263.) Here, the victim told Hinderliter that one of the men inserted his penis "in her vagina." Austin identified defendant as being the man who was on top of the victim and moving in a manner that indicated sexual intercourse. This evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that defendant committed rape. (People v. Poggi (1988) 45 Cal.3d 306, 326, 246 Cal. Rptr. 886, 753 P.2d 1082; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738.)
2. Evidence of the Victims Statement to Officer Hinderliter
Outside the presence of the jury, proceedings were conducted with respect to Officer Hinderliters proffered testimony recounting what the victim had told him at the scene of the crime. The prosecution argued that the victims statement was admissible hearsay under the exceptions of Evidence Code sections 1240 (spontaneous declaration) and 1370 (statement describing infliction of injury). (Further section references are to the Evid. Code.) The court noted that it had viewed a videotape of a second interview with the victim conducted 10 days after the incident, at which time she was "obviously incoherent at times and speaking gibberish at times . . . ." Hinderliter testified that, in addition to telling him in the first interview that the victim said that the perpetrators would be punished, she also said that she is "the sister of Christ and their [(the perpetrators)] judgment day would be coming." Hinderliter further testified that although the victim was incoherent on the videotape, in the first interview immediately after the incident she was "more coherent" and "didnt ramble like she did in that videotape." The People also established that the victim had been subpoenaed and arrangements were made for her to stay in a motel several days before the preliminary hearing. However, she had vacated the room before the hearing took place and further efforts to locate her had been to no avail. The trial court ruled that the victims statement to Hinderliter in the first interview could come in both as a spontaneous declaration and as a statement describing the infliction of injury. PAGE CONTAINED FOOTNOTES
Evidence Code section 1240 provides:
"Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
"(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and
"(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
Evidence Code section 1370 provides in relevant part:
"(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
"(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
"(2) The declarant is unavailable as a witness pursuant to [Evidence Code] Section 240.
"(3) The statement was made at or near the time of the infliction or threat of physical injury. . . .
"(4) The statement was made under circumstances that would indicate its trustworthiness.
"(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
"(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:
"(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
"(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
"(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section."
Defendant contends that the statement should not have been admitted as one describing the infliction of injury because (a) it did not satisfy the section 1370, subdivision (a)(4) requirement that it be made under circumstances that indicated its trustworthiness; (b) section 1370 violated his right of confrontation (and to the extent the issue may be considered waived because trial counsel did not object on this ground, counsel was prejudicially ineffective); and (c) section 1370 violates the equal protection clause of the United States Constitution. Defendants contentions lack merit.
a. Statutory requirement
At the outset, we note that the victims statement to Officer Hinderliter was admitted under both the spontaneous declaration exception to the hearsay rule ( § 1240) and section 1370 and that defendant has not challenged the spontaneous declaration ruling. Nor could he have successfully done so. The victims statement described an act that she perceived and was made under the stress of excitement caused by such perception. Accordingly, even if section 1370 was not satisfied, Hinderliters testimony was properly admitted under section 1240.
In any event, we find no fault with the trial courts conclusion of trustworthiness under section 1370, subdivision (a)(4). The victim, exhibiting the physical symptoms of having been beaten about the face and not wearing clothes from the waist down, told Hinderliter that two men had assaulted her. She explained that during the assault she had been hit in the face, her sweatpants and underwear had been pulled off, and one of the men inserted his penis into her vagina. Factors pertinent to a determination of whether a hearsay statement is trustworthy include those set forth in section 1370, subdivision (b). (See fn. 2, ante.) Here, the statement was corroborated (§ 1370, subd. (b)(3)) by evidence of the victims physical state, Austins graphic description of the assault, and the fact that two men were captured while attempting to flee the scene.
Defendant notes that the United States Supreme Court has described factors going to trustworthiness and reliability as including the possibility that the statement was based on faulty recollection. (See Dutton v. Evans (1970) 400 U.S. 74, 88-89 [91 S. Ct. 210, 219-220, 27 L. Ed. 2d 213].) Defendant focuses on this possibility here, given that the victim was sometimes incoherent and even may have been delusional at times. But given the strength of the corroborating evidence referred to above, there is no valid basis upon which to assert that the trial court erred in finding that the victims statement to Hinderliter was admissible under section 1370.
b. Confrontation
For similar reasons, we also reject defendants argument that application of section 1370 violated his right of confrontation. Defendants argument is grounded in the rule that the confrontation clause of the United States Constitution will be satisfied by a hearsay statement only if it contains "particularized guarantees of trustworthiness." (Idaho v. Wright (1990) 497 U.S. 805, 820 [110 S. Ct. 3139, 3149, 111 L. Ed. 2d 638].) In People v. Hernandez (1999) 71 Cal.App.4th 417, 424, the court rejected an argument that section 1370 violates the confrontation clause, noting that the statute provides for particularized guarantees of trustworthiness.
Defendant asserts the requirement was violated here because although Hinderliter "claimed the victim understood his questions and provided answers, the reliability of the statement was belied by the officer[]s recognition of the victim going in and out of lucidity and the fact when the victim was interviewed 10 days later she was completely incapable of responding to the inquiry." Defendants argument misconstrues the rules of appellate review placing factual determinations within the province of the trial court and requiring that we accept those rulings unless unsupported by substantial evidence. (See In re Carpenter (1995) 9 Cal.4th 634, 646, 889 P.2d 985.) We perceive no principled basis on which to question the trial courts conclusion that the victim was lucid, and therefore trustworthy, when speaking with Officer Hinderliter. The futility of this contention concomitantly defeats defendants assertion that counsel was ineffective for failing to raise it. (See People v. Hines (1997) 15 Cal.4th 997, 1057, 938 P.2d 388.)
c. Equal protection
Defendant contends that section 1370 violates the equal protection clause of the United States Constitution because it "singles out those accused of offenses where personal injury occurs or might occur, either intentionally or accidentally, from those where no injury occurs." Again, defendant failed to raise his claim in the trial court. In addition, in order to prevail on this claim, defendant would have to demonstrate that section 1370 results in disparate treatment of persons who are similarly situated. He has failed to do so. (People v. Boulerice (1992) 5 Cal.App.4th 463, 472.) Assuming that defendant has standing to raise the argument, common sense dictates that offenses in which a victim is injured are inherently more serious than other crimes, and injured victims are less likely than other witnesses to appear in court, based either on fear or disability. Accordingly, a legitimate basis exists to treat trustworthy hearsay from those victims differently than hearsay from other declarants. Defendants argument must be rejected.
3. Austins Testimony that Defendant Raped the Victim
As noted above, Austin testified (on direct examination) that defendant "appeared to be raping" and was having "intercourse" with the victim and that "there was motion that indicated sexual intercourse." The testimony was received over objection that it constituted a legal conclusion. Later on direct, Austin explained that when the helicopter arrived, defendant "continued to have intercourse with the woman. Finished that. Got up and put on his underwear and his pants." Defendant then objected on grounds of "speculation of intercourse," and the objection was overruled. A break was taken soon after this testimony. After the break, the trial court reversed itself and admonished the jury to "disregard that part of the response" "that included the reference to intercourse." Soon thereafter, the prosecutor asked Austin to again state what she observed of defendants and the victims bodies and asked if based on her observations Austin "formed a lay opinion as to what [defendant] was doing." Austin responded: "I was convinced he was raping her."
Defendant contends that the trial court should have excluded all of Austins opinion testimony regarding whether he had engaged in a sex act with the victim. Not so. Under section 800, nonexpert opinion testimony is permitted when "(a) rationally based on the perception of the witness; and [P] (b) helpful to a clear understanding of [her] testimony." That it "embraces the ultimate issue to be decided by the trier of fact" does not render objectionable "testimony in the form of an opinion [* 15] that is otherwise admissible." ( § 805.)
Austins opinion was rationally based on her personal observation and was helpful to an understanding of her testimony. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1306-1307, 283 Cal. Rptr. 382, 812 P.2d 563.) Accordingly, the trial court did not abuse its discretion in permitting Austin to testify that defendant was raping the victim. (Cf. People v. Farmer (1989) 47 Cal.3d 888, 908, 254 Cal. Rptr. 508, 765 P.2d 940, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6, 996 P.2d 46.)
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P. J. VOGEL (MIRIAM A.), J.