People v. Gibson CA3

Filed 9/27/16 P. v. Gibson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C076199

v. (Super. Ct. No. 12F01432)

CHRISTOPHER FITZGERALD GIBSON,

Defendant and Appellant.

A jury convicted defendant Christopher Fitzgerald Gibson of rape of a victim 15 years of age (Pen. Code, § 261, subd. (a)(2); count 1)1 and unlawful sexual intercourse with a victim 15 years of age while being over 21 years of age (§ 261.5, subd. (d); count 2). The trial court found true the allegations defendant had served three prior prison terms following felony convictions (§ 667.5, subd. (d)), had two prior convictions for

1 Undesignated statutory references are to the Penal Code.

1

serious felonies (§ 667, subd. (a)), and had two prior strikes for convictions of serious or violent felonies (§§ 667, subds. (b)-(i), 1170.12). The trial court denied defendant’s motion to dismiss one of his prior strike convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to serve a term of 25 years to life plus 13 years in prison. Defendant contends the trial court erred in admitting testimony by the nurse who conducted the victim’s sexual assault examination that it was not uncommon for sexual assault victims to engage in consensual sex after reporting the crimes. Defendant argues the nurse’s testimony lacked foundation because it exceeded the scope of her expertise, and was not necessary for the jury’s understanding. Defendant further argues the erroneous admission of the nurse’s testimony required the trial court to grant his motion for a new trial. On our own motion, we granted the parties permission to address in supplemental letter briefs whether the evidentiary issues raised on appeal are forfeited on grounds no basis was stated for the objection to the admission of testimony of the nurse. Having received and considered supplemental briefing by the parties, we conclude defendant preserved the issue of whether the nurse’s testimony exceeded the scope of her expertise. However, defendant forfeited the issue of whether the testimony was necessary for the jury’s understanding because this was not raised as a basis for the objection in the trial court. On the merits, we conclude the nurse did not give expert testimony but only described her own experience in working with victims of sexual assault. Nonetheless, we modify the judgment because the trial court erroneously stayed imposition of sentence on count 2 under section 654 when it should have imposed sentence on count 2 and stayed execution of sentence. As modified, we affirm the judgment.