People v. Perez CA2/5

Filed 2/16/21 P. v. Perez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B299876

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145446)
v.

EMMANUEL PEREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
 I. INTRODUCTION

A jury found defendant Emmanuel Perez guilty of one
count of rape of an unconscious person (Pen. Code,1 § 261,
subd. (a)(4)), and one count of unlawful sexual intercourse
(§ 261.5, subd. (c)). Defendant challenges on appeal the trial
court’s evidentiary rulings admitting the victim’s hearsay
statement, excluding defendant’s proffered character evidence,
and admitting the victim’s identification of defendant from a
photographic lineup. He also contends there was insufficient
evidence to support his convictions. We affirm.

II. BACKGROUND

A. Procedural History

On September 20, 2018, the Los Angeles County District
Attorney charged defendant by information with one count of
rape of an unconscious person and one count of unlawful sexual
intercourse.
On April 5, 2019, the jury found defendant guilty of both
counts.
On May 23, 2019, the trial court sentenced defendant to six
years in prison. Defendant timely appealed.

1 Further statutory references are to the Penal Code unless
otherwise indicated.

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B. Trial

1. J.M.

On November 2, 2016, J.M. was 16 years old and attended
a high school in Lynwood. A couple of months prior, J.M. was
walking home from school when defendant “hit on” her. J.M. told
defendant her age, but defendant persisted. When he asked J.M.
for her phone number, J.M. responded with her KIK—a type of
social media—address.
J.M. agreed to attend a party with defendant on
November 2, 2016, which was the first time the two had “h[u]ng
out.” They planned to drink alcohol. Defendant asked what type
of alcohol J.M. liked, and J.M. responded that she had no
preference.
At about 7:30 p.m., defendant picked up J.M. near her
house. J.M. had smoked a small amount of marijuana that
morning. Defendant brought with him a large bottle of vodka
and a small bottle of tequila. J.M. brought her own canister with
which to drink shots.
Defendant asked J.M. if she was truly 16 years old, to
which J.M. responded that she was. Defendant was 25 years old
at the time, but he did not disclose his age to J.M.
J.M. drank all the tequila. Defendant and J.M. both drank
the vodka.
As they drove, defendant touched J.M.’s thigh. J.M. told
defendant not to do that.
When they arrived in Long Beach, where they intended to
attend a party, J.M. told defendant to pull over into a park so
that she could urinate. J.M. then urinated in a bush. When she

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returned, defendant tried to hug her. J.M. told defendant that
she “didn’t want that” and “to get away.”
J.M. was “pretty intoxicated” and dozed off in the car. She
awoke in a dark parking lot to defendant kissing her face and
touching her thigh. Defendant looked surprised when J.M.
awoke and he stopped touching her.
J.M. reentered the car and lost consciousness again. When
she awoke, J.M. was alone between two cars in a park near her
house. Her belongings were next to her. J.M.’s first thought was
that defendant had raped her. J.M. described the basis for her
belief as “kind of like intuition.” When asked whether J.M. had a
“vague memory of some kind of other sexual contact” with
defendant, J.M. responded, “No.”
J.M. called her sister at around 11:00 p.m. J.M. repeatedly
told her sister that “‘[t]his guy put his dick in me.’” J.M. was
distraught, hysterical, and crying. She sounded scared. J.M. ran
home. Her brother eventually called the police.
During cross-examination, defense counsel introduced
J.M.’s text messages with defendant. When defendant asked
J.M. what she did for fun, J.M. responded that she liked to
smoke, referring to marijuana. When defendant asked J.M. if she
drank, J.M. stated, “‘Of course I do.’” Defense counsel also
introduced photographs from J.M.’s Instagram account, one of
which depicted a container and the words “‘[c]ontainers make the
best shot glasses.’” J.M. admitted that she was an “experienced”
drinker at the time of the incident and drank whenever she went
out.

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 2. Leanne Cannon

Cannon was a sexual assault nurse who examined J.M. for
sexual assault on November 3, 2016. Cannon described J.M. as
tearful, shaky, and cooperative. Cannon recounted what J.M.
reported to her: “She remember[ed] meeting the suspect at 2100
at a particular street corner. She was offered a shot of [tequila].
She felt peer pressure to drink it. She remember[ed] sitting in a
car listening to music and drinking. [¶] At some point during the
evening, [defendant] came in to give her a hug. I believe she had
pushed him away and stated no, she wasn’t interested. And then
she became very sleepy. [¶] Next thing she remember[ed was]
waking up in a dark parking lot with the [defendant] on top of
her asking her sexual questions. And then following that, things
went black. [¶] She had stated that she had felt something
inside of her. And then following that, she had woken up in a
dark parking lot with no one around her.”
During the examination, Cannon observed and
photographed the following on J.M.: a possible “suction injury,”
similar to a hickey, on J.M.’s right breast; possible scratch marks
on the left side of J.M.’s neck and lower back; and a “small
possible abrasion to the 7 o’clock position” of J.M.’s hymen.
Cannon took a blood sample from J.M. at 7:43 a.m. Cannon also
took samples from J.M.’s breasts and vulva.

3. Malinda Wheeler

Wheeler was a registered nurse who testified as an expert
on sexual assault. Wheeler reviewed a photograph of J.M.’s
hymen and observed that it depicted a “small red mark which is

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actually an abrasion.” In Wheeler’s opinion, an injury in that
location, the hymen, was “from something that penetrated.” But
she was unable to tell whether the penetration was by “a penis, a
finger, or an object.” Wheeler further opined that the injury had
a “redness” which indicated it had occurred within the prior 24 to
48 hours. Over defense counsel’s hearsay objection, Wheeler
testified that J.M.’s statement that she felt something inside of
her was consistent with blunt force trauma to her hymen.

4. Criminalists

Shing Kei Thomas Ho was a criminalist with the Los
Angeles County Sheriff’s crime lab who analyzed J.M.’s blood
sample. He concluded that J.M.’s blood alcohol level was .08
percent. In response to a hypothetical regarding a bolus drinking
pattern, referring to drinking large amounts of alcohol in a short
period of time, Ho opined that a person who began drinking at
7:30 p.m. and stopped drinking at 8:30 p.m. would reach her peak
blood alcohol level at 10:00 p.m. Further, “[a]t the time . . . the
person reached their peak at 10 p.m., the person’s [blood alcohol
level] will be any point between .08 and .27.”
Stephanie Sandoval was a senior criminalist with the Los
Angeles County Sheriff’s crime lab. Sandoval analyzed a sample
taken from J.M.’s vulva and observed blood and semen. The
DNA profile from the sample indicated two contributors: J.M.
and defendant.

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 5. Detective Jonathan Bailey

On December 8, 2015, Los Angeles County Sheriff’s
Department Detective Bailey showed J.M. a six-pack
photographic lineup containing defendant’s photograph. J.M.
identified defendant from the lineup. Bailey then contacted
defendant and obtained a DNA sample from him. Bailey believed
defendant’s photo was taken from Department of Motor Vehicle
(DMV) records, but he could not be sure as he did not assemble
the photographic lineup.

6. Defendant

Defendant testified at trial that J.M. did not tell him her
age and he believed J.M. was an adult because she attended a
continuation school.
When defendant and J.M. returned to Lynwood from Long
Beach, J.M. complained about her ex-boyfriend and tried to kiss
defendant. Defendant initially resisted, but eventually licked
J.M.’s neck and breasts. J.M. then pulled down her pants and
told defendant to “fuck” her. Defendant rubbed his penis on
J.M.’s vagina, but could not maintain an erection. Defendant told
J.M. that they should just go home early, but J.M. insisted on
having sex. J.M. “grind[ed]” on defendant outside the car. When
defendant said no, J.M. “got over it” and put her pants back on.
Because they were not far from where defendant had
picked up J.M., they walked toward her home. A California
Highway Patrol car passed nearby, and defendant told J.M. to
walk straight because he did not want a ticket for public
drunkenness. According to defendant, J.M. “freaked out, and she

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went the opposite direction where the officer was going.”
Defendant looked for her for about ten minutes but could not find
her. Defendant denied seeing J.M. fall asleep or lose
consciousness.
Defendant denied having sexual intercourse with J.M. He
explained the presence of his semen inside J.M.’s vulva as
follows: “[T]he only thing I could assume is maybe at the time
when I was erect, maybe when I was rubbing my penis on her
vagina, I don’t know, maybe it could have been pee [sic] cum or
something.”

7. Defendant’s Character Witnesses

Defendant’s sisters and friends testified that in their
opinion, defendant was not a sexual deviant or predator and did
not behave inappropriately with other women.

III. DISCUSSION

A. J.M.’s Hearsay Statement

Defendant contends that the trial court erred by allowing
Wheeler to testify that J.M.’s hearsay statement to Cannon—that
she had felt something inside her—was consistent with the blunt
force trauma to J.M.’s hymen.

1. Background

During trial, defense counsel objected on hearsay grounds
when the prosecutor asked Cannon about J.M.’s statement to her.

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The court overruled the objection finding that J.M.’s statements
to Cannon were prior consistent statements that fell within an
exception to the prohibition against hearsay. Cannon then
testified about J.M.’s statement that “she had felt something
inside her.”
When the prosecutor asked Wheeler whether J.M.’s injuries
were consistent with J.M.’s report of sexual assault, defendant
again objected on hearsay grounds; the court overruled the
objection. Wheeler responded that J.M.’s statement that she felt
something inside her was consistent with the blunt force trauma
to J.M.’s hymen.

2. Analysis

“We review evidentiary rulings, including ultimate rulings
on whether evidence should be excluded as hearsay, for abuse of
discretion. [Citation.] When a hearsay exception requires
foundational findings of fact, we review such findings for
substantial evidence.” (People v. Caro (2019) 7 Cal.5th 463, 503.)
“‘If a judgment rests on admissible evidence it will not be
reversed because the trial court admitted that evidence upon a
different theory, a mistaken theory, or one not raised below.’”
(People v. Blacksher (2011) 52 Cal.4th 769, 806, fn. 21.)
At trial, J.M. testified that aside from defendant trying to
kiss her and touch her thigh, she did not recall any other sexual
contact with him. She also testified that her belief that
defendant raped her was based on “intuition.” Thus, her prior
statement to Cannon that she felt “something inside her” was
inconsistent with her trial testimony. (See People v. Hovarter
(2008) 44 Cal.4th 983, 1008–1009 [“‘Generally it is true that the

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testimony of a witness indicating that he or she does not
remember an event is not inconsistent with a prior statement
describing the event. [Citation.] “But justice will not be
promoted by a ritualistic invocation of this rule of evidence.
Inconsistency in effect, rather than contradiction in express
terms, is the test for admitting a witness’[s] prior statement
[citation], and the same principle governs the case of the
forgetful”’”].) Thus, we disagree with the trial court’s rationale
for admitting the hearsay statement as a prior consistent
statement. Nonetheless, because J.M.’s hearsay statement was
admissible as a prior inconsistent statement of a witness who had
not been excused from giving further testimony in the action, it
was admissible under a different hearsay exception. (Evid. Code,
§§ 770, subd. (b), 1235.) Thus, we find no error in the admission
of J.M.’s hearsay statement.
Defendant also argues that Wheeler’s expert opinion of
sexual penetration relayed inadmissible hearsay to the jury in
violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
We disagree. Our Supreme Court held that an expert cannot
“relate as true case-specific facts asserted in hearsay statements,
unless they are independently proven by competent evidence or
are covered by a hearsay exception.” (Id. at p. 686.) We have
concluded that J.M.’s prior statement to Cannon was admissible
under the prior inconsistent statement exception to the hearsay
rule. Sanchez is thus inapplicable.
Defendant alternatively argues that if we conclude that
J.M.’s hearsay statement was inadmissible, but harmless error,
there was insufficient evidence to support the jury’s finding that
defendant had sexually penetrated J.M. We find no error,
harmless or otherwise, in the trial court’s evidentiary ruling. It

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is unclear whether defendant raises an independent challenge to
the sufficiency of the evidence as a basis for reversal. We will
assume that he does and consider the merits of his argument.
“‘When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in
the light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid value
from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.] Our review must
‘“presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.”’
[Citation.] Even where, as here, the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether the evidence
might ‘“‘be reasonably reconciled with the defendant’s
innocence.’”’ [Citations.] The relevant inquiry is whether, in
light of all the evidence, a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” (People
v. Gomez (2018) 6 Cal.5th 243, 278.)
“Sexual intercourse means any penetration, no matter how
slight, of the vagina or genitalia by the penis.” (See CALCRIM
No. 1003; § 263.) J.M. had injury to her vagina and hymen,
which was consistent with penetration by a penis, finger, or
object. Further, blood and defendant’s semen were found inside
J.M.’s vulva. Thus, even without J.M.’s hearsay statement,
substantial evidence supported the jury’s verdicts.

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B. Exclusion of Character Evidence

Defendant next contends the trial court erred by excluding
photographs depicting J.M.’s affinity for alcohol and marijuana.
Specifically, defendant challenges the court’s exclusion of the
following proposed exhibits:
(1) a photograph of J.M. with a six-pack of beer, which
had the words “‘I’m happiest when I’m with you, my
sweetheart, #Budweiser,’” dated February 5 of an
undisclosed year;
(2) a photograph, dated June 25, 2016, of a bottle of
“purple potion” and the words “‘Killer potion,’”
referring to a mixture of alcohol with pharmaceutical
drugs such as cough syrup;
(3) a photograph, dated May 21, 2016, depicting J.M.
drinking from a bottle of cognac;
(4) a photograph from J.M.’s Instagram account, showing
someone holding a marijuana joint;
(5) a photograph from J.M.’s Instagram account
depicting a six-pack of beer and potato chips;
(6) a photograph from J.M.’s Instagram account
depicting her holding a bottle of apple cider with the
phrase “‘day off, chellas’” written on it. “Chellas” is
Spanish slang for beer;
(7) a photograph from J.M.’s Instagram account showing
her holding a martini or cocktail;
(8) a photograph from J.M.’s Instagram account
depicting her holding a six-pack of beer; and
(9) a photograph of J.M. with a young man holding a
marijuana joint.

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 In excluding these exhibits, the trial court stated that
defense counsel had already obtained evidence of J.M.’s drinking
behavior from J.M.’s own testimony, and “in my opinion, you’re
simply trying to sully up or dirty up the victim in this case by
having joints and alcohol . . . .”
“The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.) We
review the exclusion of evidence pursuant to Evidence Code
section 352 for an abuse of discretion. (People v. Hamilton (2009)
45 Cal.4th 863, 944.)
Defendant argues the photographs of J.M. with alcohol and
marijuana were necessary to demonstrate that J.M. was an
experienced drinker and marijuana user. We disagree.
Defendant elicited testimony from J.M. that she was an
“experienced” drinker who drank alcohol whenever she went out.
He also introduced a text in which J.M. said that she liked to
smoke marijuana and a photograph from J.M.’s Instagram
account in which she opined on the best type of shot glass. The
additional photographs that defendant sought to introduce
therefore were cumulative and the trial court did not abuse its
discretion in excluding such evidence. (People v. Mincey (1992) 2
Cal.4th 408, 439.)
Even if we were to assume that the trial court erred by
excluding the exhibits, we would find any such error to be
harmless. Defendant amply demonstrated that J.M. was an
experienced drinker who used marijuana and thus suffered no

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prejudice when he was precluded from introducing additional
exhibits to prove these points.

C. Admission of Evidence of Photographic Lineup

Defendant argues that the trial court erred by not
excluding from evidence J.M.’s identification of him in a six-pack
photographic lineup. Defense counsel objected to the introduction
of such evidence, asserting that the photographic lineup’s
probative value was minimal because identity was not in dispute,
and any probative value was substantially outweighed by undue
prejudice. According to defendant, the photographic lineup
suggested “a certain level of criminality.” The court overruled the
objection. We find no error.
Defendant argues the photographic lineup was not relevant
because “identity was not an issue in this case.” Defendant is
incorrect. Because defendant pleaded not guilty, all the elements
of the charged crimes, including the identity of the perpetrator,
were at issue at trial. (People v. Cowan (2010) 50 Cal.4th 401,
476 (Cowan); People v. Walker (2006) 139 Cal.App.4th 782, 796.)
The “‘prosecution’s burden to prove every element of the crime is
not relieved by a defendant’s tactical decision not to contest an
essential element.’” (Cowan, supra, 50 Cal.4th at p. 476, quoting
Estelle v. McGuire (1991) 502 U.S. 62, 69.)
We also reject defendant’s contention that the probative
value of J.M.’s identification was outweighed by unfair prejudice.
Defendant argues that we should assume that the jurors
“speculated that [he] may have been identified from a mug shot.”
We decline to make any such assumption. First, there was no
evidence that the photograph of defendant that was included in

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the lineup was of a mug shot. To the contrary, Bailey testified
that he believed defendant’s photograph was taken from DMV
records. Further, the court instructed the jury that “‘[e]vidence’
is the sworn testimony of witnesses, the exhibits admitted into
evidence and anything else [the court] told [them] to consider as
evidence”; and that “[i]n deciding whether the People have proved
their case beyond a reasonable doubt, you must impartially
compare and consider all the evidence that was received
throughout the entire trial.” “Jurors are presumed able to
understand and correlate instructions and are further presumed
to have followed the court’s instructions.” (People v. Sanchez
(2001) 26 Cal.4th 834, 852.) We find no abuse of discretion in the
court’s evidentiary ruling.

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 IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

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