Filed 11/20/15 P. v. James CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES D. JAMES,

Defendant and Appellant.

 B257226

 (Los Angeles County

 Super. Ct. No. MA058249)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa M. 

Chung, Judge. Affirmed.

John A. Colucci, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., 

Joseph P. Lee and Allison H. Chung, Deputy Attorneys General, for Plaintiff and 

Respondent.

* * * * * *
2

Charles D. James appeals from his conviction on several counts arising from the

sexual assault of a 14-year-old girl, who was referred to as “Jane Doe” throughout the 

proceedings. Appellant argues the court committed reversible error by admitting the 

victim’s statements to an examining nurse, even though the victim testified at trial. We 

disagree and affirm.

FACTS

On December 13, 2012, around 6:00 a.m., Jane Doe left her apartment in 

Lancaster and began walking to her high school. At one point, she noticed a man 

following her. She crossed the street and began to run. The man ran up behind her, 

grabbed her, and as she screamed, told her, “Be quiet or I will kill you.” Jane Doe

struggled to get away while the man pushed her into some bushes and against a brick wall 

behind the bushes. He held her from behind so that she was facing the brick wall. The 

man asked her, “Do you have dick on your mind this morning?” and, “Have you ever had 

it before?” Then the man pulled down her shirt and bra and licked her left breast. The 

man proceeded to pull down her jeans and underwear and unbuckle his pants. As he 

unbuckled his pants, Jane Doe was able to turn her head and look at the man. He was 

black, had facial hair, and had braided or pulled-back hair on his head. He used his finger 

to feel around her anus and then forcibly inserted his penis into her anus approximately 

three times. At this point he stopped and said, “If you tell anybody, then I’ll kill you and 

your family,” pushed her to the ground, and fled.

After the man fled, Jane Doe ran in the opposite direction and sought help. She 

ran into classmates and used one of their cell phones to call her mother, who did not 

answer. She fainted and when she regained consciousness, she called 911, and deputy 

sheriffs arrived on the scene shortly thereafter.

Forensic nurse examiner Sylvia Fink examined Jane Doe at Antelope Valley 

Hospital on the morning of the assault. Based on Jane Doe’s account, Fink collected 

various swab samples from the victim, including from her left breast, her buttocks, the 

crack of her buttocks, and her rectum. Fink also took photographs, which showed 

abrasions in Jane Doe’s rectal area at three different locations around the anus.
3

Senior criminalist Kenneth Takigawa conducted the DNA testing on the contents 

of Jane Doe’s sexual assault kit from Fink’s examination. He detected saliva on the left 

breast swab sample. The DNA profile from the breast saliva sample was uploaded into a 

database and returned a match to appellant. In addition, Takigawa identified semen and 

sperm cells on Jane Doe’s rectal swab sample and determined that the sample contained a 

mixture of DNA from at least two contributors. He could not conclusively include or 

exclude appellant as one of those contributors.

All the testing in Takigawa’s lab underwent peer review as a matter of course. 

Wilson Vong reviewed Takigawa’s work in this case. Vong did not find any errors in 

Takigawa’s testing, but he would have included appellant as a possible contributor to the 

DNA in Jane Doe’s rectal sample. Takigawa then forwarded the rectal sample to another

criminalist, Cindy Carrol, for a different type of testing that could possibly remove 

ambiguity from the sample. Carrol performed a type of DNA testing specific to the “Y” 

chromosome found only in males. Y-profiles are not unique to individuals, like the 

profiles generated in the conventional testing Takigawa did. But Y-profiles are unique to 

paternal lines. A male will have the same Y-profile as other males in his paternal line. 

The Y-profile generated from Jane Doe’s rectal sample matched appellant’s Y-profile. 

Although the rectal sample’s Y-profile would also match any male within appellant’s 

paternal line, 99.95 percent of unrelated African-Americans selected at random would be 

excluded from the sample. Carrol also reviewed Takigawa’s work and disagreed with his

inconclusive finding regarding the rectal sample. She would have included appellant as a 

contributor to that sample as well.

Once investigators identified appellant as a suspect based on the DNA match, they 

notified the media of his identity. A phone tip from an individual purporting to be 

appellant’s uncle led police to arrest appellant in Greenville, South Carolina. 

Investigators discovered that before travelling to South Carolina, appellant had been 

staying in Lancaster less than half a mile from the location of Jane Doe’s assault. They 

searched the location and found a piece of luggage in the garage that contained a traffic 

citation issued to appellant.
4

A few weeks after the December 2012 assault, investigators showed Jane Doe a 

photographic lineup that included appellant’s Department of Motor Vehicles photograph 

from February 2009. She could not be sure appellant was her attacker from the 

photographic lineup. In a photo taken by law enforcement in South Carolina on 

December 27, 2012, appellant’s hair appeared to be fully combed out. In appellant’s 

booking photograph from California on January 5, 2013, it appeared that one portion of 

his hair was braided and the rest was loose. At trial, Jane Doe identified appellant as her 

attacker and expressed certainty in that identification.

PROCEDURE

An amended information charged appellant with kidnapping to commit sodomy

(Pen. Code, § 209, subd. (b)(1)),1 kidnapping to commit forcible acts of sexual 

penetration (§§ 209, subd. (b)(1), 289, subd. (a)), attempted sexual penetration by a 

foreign object of a minor over 14 years old (§§ 289, subd. (a)(1)(C), 664), sodomy by use 

of force of a victim over 14 years old (§ 286, subd. (c)(2)(C)), lewd act upon a child 

(§ 288, subd. (c)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). 

The amended information also contained a number of special allegations.

The prosecution dismissed the count for kidnapping to commit forcible acts of 

sexual penetration. The jury convicted appellant of the remaining counts and found the 

special allegations to be true. Appellant admitted one prior serious felony conviction 

within the meaning of section 667, subdivision (a)(1), and one prior strike within the 

meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The 

court sentenced appellant to an aggregate term of 82 years to life in state prison.

DISCUSSION

Appellant challenges Fink’s testimony regarding the details of the assault as 

recounted by Jane Doe to Fink. Fink said it was important to learn exactly what 

happened to the patient so that she could determine what steps to take in the examination. 

 

1 Further undesignated statutory references are to the Penal Code.
5

According to Fink, Jane Doe told her that the attacker pulled down her shirt and “kissed 

and licked” her left breast and put his finger and penis in her anus. Fink opined that her 

physical findings were consistent with the history Jane Doe gave her. The court 

admonished the jury that any alleged statements from the victim through Fink were “not 

to be considered for the truth,” and they were “only to give a context as to what this 

witness performed next in the examination.” Appellant contends Jane Doe’s statements 

through Fink were inadmissible hearsay and also represented a confrontation clause 

violation under the Sixth Amendment and the California Constitution. We reject this 

challenge.

1. Confrontation Clause Challenge

First, this case does not present a confrontation clause violation. The Sixth 

Amendment’s confrontation clause, applicable in state prosecutions through the 

Fourteenth Amendment to the United States Constitution, and California’s constitutional 

confrontation clause guarantee a criminal defendant the right to confront, i.e., crossexamine, the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; 

Chambers v. Mississippi (1973) 410 U.S. 284, 295; People v. Herrera (2010) 49 Cal.4th 

613, 620-621.) Crawford v. Washington (2004) 541 U.S. 36, 59, footnote 9 (Crawford),

made clear, however, that “when the declarant appears for cross-examination at trial, the 

Confrontation Clause places no constraints at all on the use of his [or her] prior 

testimonial statements. [Citation.] . . . The Clause does not bar admission of a statement 

so long as the declarant is present at trial to defend or explain it.” Here, Jane Doe was 

present, testified at trial, and submitted to cross-examination. Thus, the admission of her 

prior out-of-court statements through Fink did not violate the confrontation clause. 

(People v. Martinez (2005) 125 Cal.App.4th 1035, 1050.)

2. Hearsay Challenge

Second, the trial court did not abuse its discretion in admitting the challenged 

evidence for its nonhearsay purpose, and even if it did, the error was not prejudicial. As a 

preliminary matter, we dispose of respondent’s argument that appellant forfeited a 

challenge on state hearsay grounds because he based his objection on Crawford in the 
6

trial court. When defense counsel initially challenged this evidence below, she stated, “I 

would object under Crawford,” but also, “That is hearsay.” The prosecutor then argued, 

“I don’t believe that that is hearsay,” and asserted the evidence fell under the hearsay 

exception for statements made to medical professionals.

2

 Later when the parties again 

argued this issue, defense counsel contended that, under Crawford, the challenged 

evidence was “testimonial and therefore hearsay and inadmissible.” The prosecutor 

responded in part by arguing the evidence was admissible under the hearsay exception for 

statements of then existing mental or physical state under Evidence Code section 1250. 

“An objection is sufficient if it fairly apprises the trial court of the issue it is being 

called upon to decide. [Citations.] In a criminal case, the objection will be deemed 

preserved if, despite inadequate phrasing, the record shows that the court understood the 

issue presented.” (People v. Scott (1978) 21 Cal.3d 284, 290.) We think it clear 

appellant’s challenge presented both the confrontation clause and hearsay issues for the 

court to decide. Appellant did not forfeit the hearsay argument.

Moving to the merits of the hearsay challenge, hearsay is evidence of an out-ofcourt statement offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. 

(a).) “‘Under this definition, as under existing case law, a statement that is offered for 

some purpose other than to prove the fact stated therein is not hearsay.’” (People v. 

Bolden (1996) 44 Cal.App.4th 707, 714.) An extrajudicial statement offered for 

nonhearsay purposes must still be relevant in that capacity to be admissible. (People v. 

Lucero (1998) 64 Cal.App.4th 1107, 1109-1110.) We review the court’s ruling on the 

admissibility of evidence challenged on hearsay grounds for abuse of discretion. (People 

v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)

 

2 The prosecutor appeared to rely on Evidence Code section 1253, which outlines an 

exception to the hearsay rule for statements made for purposes of medical treatment. But 

the exception applies only when the declarant was the victim of child abuse or neglect 

and was under the age of 12 when making the statements. (Evid. Code, § 1253.) Jane 

Doe was 14 at the time of her statements, and the exception therefore does not apply.
7

In this case, the court’s comments to the jury suggest the court admitted Jane 

Doe’s statements through Fink for a nonhearsay purpose—i.e., not to prove their truth, 

but to explain Fink’s actions in conducting the examination. Respondent advances that 

rationale on appeal and insists Jane Doe’s hearsay statements were necessary to explain 

why Fink examined Jane Doe in the manner that she did. Appellant argues this rationale 

fails because the parties did not dispute the form of the examination. The jury only 

needed to know what tests Fink conducted and the results of those tests, not the reasons 

why she conducted those particular tests. In other words, there was no relevance to Jane 

Doe’s out-of-court statements, if they were not admitted for their truth, but to explain 

Fink’s conduct. (Evid. Code, § 210 [“‘Relevant evidence’ means evidence . . . having 

any tendency in reason to prove or disprove any disputed fact that is of consequence to 

the determination of the action.”].)

In People v. Fair (1988) 203 Cal.App.3d 1303 (Fair), the court held that a

doctor’s testimony about the nature of injuries to a victim of child molestation was 

admissible for the limited purpose of explaining the doctor’s examination and the basis 

for his opinion. (Id. at pp. 1311-1313, abrogated on another ground by People v. Brown 

(1994) 8 Cal.4th 746, 763.) The trial court permitted the doctor to testify that he took a 

history from the victim prior to his examination, and when the prosecutor asked whether 

“‘that history include[d] a description by her of a vaginal touching, possibly penetration, 

digital or finger penetration,’” the doctor responded in the affirmative. (Fair, at p. 1311.) 

The doctor opined that the results of his examination were consistent with vaginal 

touching or penetration. (Id. at p. 1307.) The appellate court found no hearsay error 

because the doctor’s testimony “did not relate the details of [the victim’s] out-of-court 

statement but merely concerned the nature of the possible injuries to guide him in his 

examination and expert opinion.” (Id. at p. 1313.)

In light of Fair, we cannot find an abuse of discretion in this case. Fink’s 

testimony provided more detail than the doctor’s in Fair. She testified that Jane Doe said 

her attacker “kissed and licked” her left breast and put his finger and penis in her anus, as 

opposed to stating in more general terms that the history Jane Doe related included 
8

mouth-to-breast contact and anal penetration. Even so, Fair provides an apt analogy. 

Fink’s opinion that her physical findings were consistent with Jane Doe’s history was 

based on Jane Doe’s statements. Thus, Jane Doe’s statements were admissible not as 

proof of the facts stated, but to enable Fink to explain the results of her examination and 

her opinion. (People v. Ainsworth (1988) 45 Cal.3d 984, 1012.)

More importantly here, assuming the court erred, the error was not prejudicial. 

Appellant argues the purported hearsay error violated his constitutional right to due 

process, in which case we must judge the prejudicial effect of the error under the 

“harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 

U.S. 18, 24. But “generally, violations of state evidentiary rules do not rise to the level of 

federal constitutional error” (People v. Benavides (2005) 35 Cal.4th 69, 91), and we 

judge them under People v. Watson (1956) 46 Cal.2d 818, 836, by asking whether it is 

reasonably probable the defendant would have obtained a more favorable result in the 

absence of the error. Under either standard, the purported error was harmless. Jane 

Doe’s in-court testimony, which we summarized in the “Facts” section above, contained 

far more detail about her assault than the little related through Fink. Her testimony was 

also consistent with what came in through Fink. Thus, excluding the challenged 

testimony would have had no effect whatsoever on the evidentiary landscape. Moreover, 

there was no genuine dispute about the details of the attack. Appellant’s defense did not 

focus on what happened during the attack. Rather, he contended that he was 

misidentified as the attacker and focused on alleged weaknesses in the DNA evidence 

and how his appearance differed from the descriptions Jane Doe gave of her attacker. As 

defense counsel said in opening statement: “There is not going to be any dispute that this 

young girl was attacked. There is not going to be any suggestion that she is lying about 

being attacked and lying about the manner in which she was attacked. . . . The issue in 

this case is whether the correct perpetrator has been identified.” Along the same lines, 

defense counsel said in closing argument: “The defense is not suggesting that Jane Doe 

wasn’t attacked, that she didn’t go through what she went through, that there was no 

assault. We are not suggesting there was consent or anything like that. [¶] The issue 
9

here that you have to address is regarding identity and was Charles James the man who 

attacked Jane Doe on December 13, 2012. [¶] The primary evidence in this case is the 

in-court identification and the DNA evidence.” Accordingly, the admission of Jane 

Doe’s out-of-court statements did not constitute prejudicial error.

DISPOSITION

The judgment is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.