P. v. Herring

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Filed 4/27/05 P. v. Herring CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DALE LEE HERRING,
Defendant and Appellant.
A104624
(Sonoma County
Super. Ct. No. SCR31472)
Dale Lee Herring (Herring) appeals from a judgment of conviction and sentence
entered after a jury found him guilty of rape, attempted forcible sodomy, assault by
means of force likely to produce great bodily injury, and false imprisonment. He
contends: (1) hearsay statements were admitted into evidence in violation of his Sixth
Amendment rights under Crawford v. Washington (2004) 124 S.Ct. 1354 (Crawford); (2)
the prosecutor committed prejudicial misconduct in closing argument; and (3) the
imposition of an upper term of sentence and consecutive terms violated the Sixth
Amendment under Blakely v. Washington (2004) 124 S.Ct. 2531 (Blakely ).
We agree that the admission of certain hearsay statements of the victim violated
Herring’s Sixth Amendment right to confront and cross-examine adverse witnesses.
Because this constitutional violation was not harmless beyond a reasonable doubt, we
reverse the judgment.

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I. FACTS AND PROCEDURAL HISTORY
After complaining of a sexual assault and beating at the hands of her boyfriend
Herring, victim Kim was found dead in her bathtub.1 Herring was charged with rape
(Pen. Code, § 261, subd. (a)(2)), two counts of sexual penetration (§ 289, subd. (a)(1)),
attempted forcible sodomy (§§ 664/286, subd. (c)(2)), forcible oral copulation (§ 288a,
subd. (c)(2)), making criminal threats (§ 422), assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(1)), false imprisonment by violence (§ 236), and
attempted murder (§§ 664/187, subd. (a)).2 The information also alleged with respect to
count VII (§ 245, subd. (a)(1)), that Herring inflicted great bodily injury within the
meaning of section 12022.7, subdivision (e).
A. PRE TRIAL E VIDENTIARY M OTION
The People disclosed in the information their intention to introduce evidence
pursuant to Evidence Code section 1370, with respect to counts I, IV, VII, and VIII (the
charges of which Herring was ultimately convicted). In essence, Evidence Code section
1370 provides a hearsay exception under certain circumstances for a victim’s statements
to police or medical personnel concerning her physical injuries. Defense counsel moved
in limine to exclude Kim’s out-of-court statements, on the ground that the prosecutor had
failed to comply with the procedural requisites of Evidence Code section 1370. The trial
court denied the motion, and the matter proceeded to trial before a jury.
B. T HE P EOPLE’S E VIDENCE
Herring, a pharmacist at a Rite-Aid store in Rohnert Park, began dating Kim in or
around January 2002. That month, and twice in March 2002, Herring filled a prescription
for Kim for Duragesic, which is a pain killer also known as Fentanyl.
1 To protect their privacy, the victim Kim, her siblings Richard and Mary, and her
mother and stepfather, Carolyn and Harold, are referred to by their first names.
2 Except where otherwise indicated, all references are to the Penal Code.

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1. Background Events
Herring believed that Kim was suffering from cancer. Sometime in the spring of
2002, Herring took her to see his friend Kevin Walker, a pharmacist who specialized in
herbal and alternative medicine. Herring told Walker that Kim had terminal cancer.
Walker examined her and offered advice about medicines.
In March 2002, Kim convinced Herring to pay for her trip to a renowned cancer
treatment center at M.D. Anderson Hospital in Houston. In actuality, she used the money
to go on a cruise with her brother Richard.
On April 15, 2002, Herring took Kim to see her physician, Dr. Erik Schten, in
regard to an ulcer and skin infection on her foot. Dr. Schten treated Kim and referred her
to a podiatrist for further treatment. Herring passed Dr. Schten a note, advising that Kim
had brain cancer. The news startled Dr. Schten, who had treated Kim since February
2002 for chronic pain from multiple abdominal surgeries and endometriosis. He ordered
CAT scans and asked Kim to provide him with the medical records from M.D. Anderson
Hospital.
The following day (April 16), Kim returned to Dr. Schten’s office alone. Kim
instructed Dr. Schten’s nurse not to discuss her medical condition with Herring, and told
Dr. Schten not to share her medical information with her parents either.
Kim further advised Dr. Schten that, after she and Herring left his office the day
before, she told Herring she wanted to end their relationship. Herring became angry and
burned her with matches. In addition, Kim reported, Herring had forced intercourse with
her a week earlier and had beat her in the past. She said she believed Herring was
drugging her and stole her medications. Dr. Schten observed and photographed injuries
on Kim’s body—including an abrasion on her nose, burns on her forearms, and bruises
on her upper thigh—which he had not seen the previous day. Dr. Schten notified the
Rohnert Park police, gave Kim their telephone number, and told her the police expected
her to file a report.
On May 2 and 10, 2002, Kim telephoned the California Board of Pharmacy
Consumer Affairs and spoke to Anna Lopez. Kim told Lopez she was in a relationship

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with pharmacist Herring, and she feared for her safety but was unable to end the
relationship. Lopez advised Kim to call the police.
On May 31, 2002, San Rafael Police Officer Jill Cingolani went to the San Rafael
home of Kim’s mother Carolyn and her step-father Harold, in response to threats
allegedly made by Herring to kill them.3 Harold told Officer Cingolani that Kim was
mentally unstable, had a history of lying, and had been involved in similar claims of
threats in the past. Cingolani contacted Herring, who denied making any threats,
appeared shocked at the accusation, and said Kim had cancer and psychological
problems.
Herring called Kim’s mother twice in late May or early June 2002. In the first
call, he denied threatening Kim or her parents. In one of the calls, he expressed his
understanding that Kim had terminal brain cancer and stated he had given her money to
go to Houston for treatment. Carolyn revealed that Kim had not received treatment in
Houston but had gone on a cruise to Mexico with her brother. Herring sounded
“completely surprised” and asked if Kim was a “con artist.” Carolyn disclosed that Kim
“lives in a lot of fantasy.” In the second call, Herring told her that Kim would “have to
pay” or “make restitution” for taking the cruise and telling him she was going to Houston
for medical reasons. His voice was cold, threatening, and menacing.
When questioned by her mother, Kim admitted misleading Herring about the
cruise, explaining she was afraid of him and wanted to get away to think about their
relationship.
According to Carolyn, Kim was immature and lived at times “in a fantasy world.”
She had accused a number of other people of sexually improper or assaultive behavior in
the past. Kim had also mentioned she was grateful Herring had helped her financially
and could not believe someone could care for her so much.
3 Kim had called her sister Mary, and Mary called their mother Carolyn, about these
threats. It is not entirely clear how Officer Cingolani became aware of it.

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On June 5, 2002, Rohnert Police Officer Sheryl Hetrick responded to Kim’s
apartment. Kim told Hetrick that she wanted Herring removed from the apartment,
because of his threats against her and her family. Hetrick observed Herring sleeping on
the couch and asked him to leave. Herring complied. Within an hour later, Herring
appeared at the police department and attempted to file a fraud complaint against Kim in
regard to his paying for her cruise. That same date, Kim informed Dr. Schten that she
was going to obtain a restraining order against Herring.
In early or mid-June 2002, Kim accompanied her mother and stepfather to Oregon.
While there, Kim received a telephone call from Herring. Kim’s mother overheard Kim
tell Herring: “Dale, if you try to take my car, I will turn you in to the Pharmacy Board.”
Kim and her family returned from Oregon on June 16.
On July 2, 2002, Kim told Dr. Schten that Herring stalked her while she was out of
town. Three days later, Kim’s sister Mary received a telephone call from Herring, who
reported that Kim was injecting Fentanyl, an opiate derivative. Herring said he still loved
Kim in spite of it all.
2. The 911 Call on July 6
Around 9:30 pm on July 6, 2002, Kim’s neighbor Margaret Conteh saw Kim
climbing out of her apartment window in her nightgown. Kim asked her to call the
police. Kim knocked on the door of another neighbor, Ben Leavitt. According to
Leavitt, Kim had blood on her face, appeared in shock, and said she had been beaten by
her boyfriend. Leavitt called 911.
3. Kim’s July 6 Statement to Officer Boggeri at the Scene
Around 9:30 p.m. on July 6, 2002, Rohnert Park Police Officers Hetrick and Steve
Boggeri responded to Kim’s apartment. According to Boggeri, Kim was “very
frightened, visibly shaken, emotional.” He witnessed abrasions on her left cheek, face,
and shoulders; a cut inside her lip with dried blood around her lips; a large bruise under
her right jaw; redness across her neck; and scrapes on both knees. Hetrick also noticed
that Kim was “visibly upset” and her hands were shaking. She observed red and purple
marks on Kim’s face, bruises on her arms and legs, and a mark on her shoulder

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resembling a human bite mark. Her lips were swollen and caked with dried blood.
Kim’s dress had blood on it.
At the scene, Boggeri asked Kim how she sustained her injuries. She responded
that her upper body injuries came from an altercation with her boyfriend, Herring. She
thought she injured her knees when she jumped out her apartment window to get away
from him. Kim then explained to Boggeri that Herring had punched her several times,
placed a pillow over her face to suffocate her, and choked her to the point she could not
breathe. Boggeri photographed Kim’s injuries, and the photos were admitted into
evidence and shown to the jury.
4. Kim’s July 6 Statement to Paramedic Westrope at the Scene
Paramedic Scott Westrope responded to Kim’s apartment the night of July 6. He
saw that Kim’s clothes were torn and she had injuries around her lips, abrasions on the
side of her neck, and cuts on her knees and shoulders. Kim appeared anxious and
nervous. She said that her ex-boyfriend had hit her with his closed and open hand. To
escape, she jumped out the window, injuring her knees and shoulders. She also said he
had grasped her neck and tried to strangle her. Kim was transported to Petaluma Valley
Hospital.
5. Kim’s July 6 Statement to Officer Hetrick at the Hospital
Officer Hetrick accompanied Kim to the Hospital. While Kim awaited treatment,
the officer obtained a more detailed statement from her concerning the events of July 6
and a purported rape on July 5.
According to Hetrick’s testimony, Kim said she had returned to her apartment
after several hours out on July 6, 2002. She told Herring she had been to the
supermarket, but he accused her of being with a “black man.” Herring grabbed and
shook her, pushed her to the floor, punched her face and back, and pushed her face into
the couch. Kim tried to dial 911. Herring grabbed the phone and threw it across the
room. As he dragged her toward the bedroom, Kim screamed: “Somebody please help
me. He’s going to kill me.” Kim claimed she had to go to the bathroom, and he told her
to “go in [her] pants.” He threw Kim onto the bed, pinned her arms down with his knees,

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and threatened: “You’re going to die tonight. I’m going to kill you, and I’m going to kill
your brother.” She screamed, and he put a pillow over her face and punched her through
the pillow. Kim saw her blood on the pillow and screamed again. He put his hands
around her throat and started to choke her. He said, “You know, I like this.” He also
said, “I’m going to light you on fire.” She got up and used the closet door as a shield.
Herring pushed the door aside and bit her on the left shoulder. She bit his hand in
retaliation. She told Herring she was going to call the police, and he told her to go ahead
because no one would believe her since he was the one with blood on his shirt. Kim
jumped through a set of blinds out the first floor window and ran to several different
apartments, banging on doors and screaming for help.
Officer Hetrick then asked Kim whether Herring had abused her on prior
occasions. Kim paused, started to cry, and responded that he had raped her the night
before (July 5).
According to Officer Hetrick, Kim recounted that on the evening of July 5, she
had showered and dressed for bed. Herring followed her into the bedroom and said, “I
want you to be my whore. I want you to be my slut.” He threw her down on the bed.
She screamed and said, “No. I don’t want this.” Herring grabbed her by the hair and
forced his penis into her mouth. She gagged and felt she was going to be sick.
After several minutes, Herring allowed Kim to get up. Then he threw her down on
the bed and tore off her nightgown and began to take off his own clothes. He forced his
fingers into her vagina, then forced his penis into her vagina twice, as hard as he could,
saying, “You know I like this.” She screamed with pain and told him to stop. Herring
continued to rape her for what seemed like an hour. He also forced his fingers into her
anus and tried to force his penis into her anus, but she pushed him away with her feet
when she felt him touch the opening. At no point did Herring ejaculate. Eventually,
Herring “got bored” and went into the living room to smoke marijuana and consume
alcohol.
Kim also told Hetrick that several weeks earlier she went to a doctor because
Herring had beaten her, split her lip, and burned her with matches. She claimed Herring

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had appeared at her apartment “out of the blue” and stayed for several days despite her
repeated requests for him to leave. During this time, Kim claimed, Herring was drinking,
smoking marijuana, snorting ground-up pills, watching pornography, and masturbating
several times a day.
Kim advised Hetrick that they did not have a sexual relationship, because she had
cervical cancer and intercourse was extremely painful for her.
6. Kim’s July 6 Statement to Dr. Schulkin at the Hospital
Kim was thereafter examined by Dr. Maury Schulkin, an emergency room
physician at Petaluma Valley Hospital. He documented the injuries observed by the
officers and paramedic. He also noted swelling on the left side of Kim’s scalp and
reddening and tenderness on her right wrist. Kim advised that she had a headache and
sore throat as well. Kim told Dr. Schulkin that she was punched over her left eye and in
the head and face, and was choked.
According to hospital records, Kim said “he bit me.” The records also note that
the “same alleged person of physical abuse had sexually abused her last night at
approximately 1900.” In addition, Kim purportedly stated: “I jumped through the
window to get away from him” and “[h]e also tried to smother me with a pillow.” The
records also noted that Kim had said “she was assaulted by [her] ex-boyfriend.”
According to Dr. Schulkin, Kim’s injuries were consistent with her report of being beaten
and strangled.
7. Police Interview of Herring on July 6
Meanwhile, Herring had driven to the Rohnert Park police station, arriving around
10:00 p.m. on July 6. He had scratches on his face, neck, and arms, as well as bite marks
on both thumbs, which were bleeding.
Herring was interviewed by Sergeant Donald Wagner, and a transcript of the
interview was admitted into evidence. Herring claimed that Kim had started the
altercation by biting his right thumb after he confronted her about where she had been for
three hours. He pushed her away and fought her off. As he gathered his things, she
invited him to hit her, jumped on his back, scratched him, and bit his hand. To get her to

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stop biting his hand, Herring bit Kim’s shoulder. Then he left her apartment and,
suspecting she would claim domestic violence, went to the police station on his own.
Herring denied taking drugs or ever having sexual relations with her.
Herring gave his consent for the police to enter his car. Officer Boggeri retrieved
a white polo shirt, which was wet and bloody, and pajama bottoms. He also retrieved a
blue bag, which Herring said contained items belonging to Kim. The bag, which the
police returned to Kim’s apartment later that night, contained syringes and Fentanyl
patches.
Sergeant Wagner also conducted a sexual assault examination of Herring. Among
other things, Wagner collected penile swabs, hair samples, and a blood sample.
8. Physical Evidence at the Scene
Officer Steven Stayrook, an evidence specialist for the Rohnert Park police,
arrived at Kim’s apartment around 2:45 a.m. on July 7, 2002, to process the crime scene.
Human blood was found on the sheets, pillows, and a door knob in Kim’s apartment.
Kim’s broken necklace was on the bed.
9. Kim’s July 7 Tape-Recorded Interview With the Police
After Kim returned to her apartment, the police conducted a further interview at
approximately 3:00 a.m. on July 7, 2002. In attendance were Sergeant Wagner, Officer
Hetrick, technician Stayrook, and another officer. An audio tape of the interview was
played for the jury (People’s Exhibit 12) and a transcript of the interview (People’s
Exhibit 13) was provided to the jury as well.
In the recorded interview, in response to police questioning, Kim stated that “like
a switch, I don’t know how to describe it, [Herring] just grabbed me and just got crazy.”
He grabbed her by the forearms, she explained, and “started shaking me and saying I was
lying and that I had been with some black person that lives around the neighborhood.”
When she denied his accusations, Herring accused her of lying. She claimed Herring told
her he was “into pedophilia” and had videos and sex toys. Although she was not
involved sexually with Herring due to her cervical cancer, Herring requested sex from her
“all the time.” In fact, Kim asserted, Herring raped her “yesterday” (apparently July 5) in

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her bedroom vaginally; she screamed and cried and asked him to stop. Herring said he
was going to “do it in my, in my bottom too,” Kim recalled, and she begged him not to.
Before he raped her, he forced her to orally copulate him, grabbing her hair and forcing
her head down. Kim tried to dial 911, but she could not see the numbers to do so.
Herring punched her in the back and slapped her face, lips, and head. Kim continued her
description: “So he dragged me into the bedroom and I was like grabbing on to the walls
so that I wouldn’t get into the bedroom [‘]cause I wanted to get out the door you know
and um, so he eventually then he pushed me on top of my bed and then he pinned me
down. And he sat on my ribs and I think he held my arms down with his knees, I think, I,
I, I think he did, cause I couldn’t move. [¶] . . . [¶] And then he kept slapping me and then
he kept putting, I have a white pillow and he kept putting it over my face and he kept
choking me and then smothering me with it and he kept saying I’m gonna kill you and
I’m gonna kill your brother, I’m gonna kill you, I’m gonna kill your brother, I’m gonna
kill you. And I’m gonna kill you tonight. And then I said please leave me alone, please
get off me, please get off me. And then he said I’m gonna knock out all your teeth, and
he just kept hitting me, um and then so I was trying to fight back cause my knees were
free enough . . . [¶] . . . [¶] where I could lift my knees. But all I could kind of do is just
kind of hit the back of him and I don’t know if it was doing anything or not. Um, and um
I remember I saw my blood on his shirt, my blood, cause he had a white shirt on.
[¶] . . . [¶] And then he kept saying that it was, that the police would never believe, they,
they said that I would, I attacked him, that they would never believe that he attacked me.”
Kim then explained that she used the closet door for a shield, he bit her on the shoulder,
and she finally escaped by opening her window, jumping through the screen, and running
away.
10. Kim’s July 7 Statement to Sexual Assault Nurse Austin
Melanie Austin, a registered nurse and sexual assault nurse-examiner, conducted a
sexual assault examination of Kim in the early morning hours of July 7, 2002. The
interview portion began shortly after 3:45 a.m., and the physical examination, conducted

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for purposes of “evidence collection,” took place between 4:40 a.m. and 6:00 a.m. Kim
appeared fearful and nervous.
During the examination, Kim described the events of July 5 and July 6. According
to Austin, Kim stated she had been in a nonsexual relationship with her assailant, and the
injuries evident on her body were from a physical assault on July 6. Kim also told Austin
that the assailant had raped her on July 5, by holding her down, penetrating her vagina
with his penis, inserting the tip of his penis and his finger in her anus, and holding her by
the hair and forcing his penis into her mouth to the point she was choking. In addition,
Kim disclosed that the assailant had kicked her and burned her with a cigarette about a
month earlier.
Austin noted that Kim had a fresh laceration on her breast, bruising and swelling
of her hymen, three reddened and irritated areas of tissue inside her vagina (near the
entrance), some abrasions inside her vagina, a reddened area at the entrance of her anus,
and tenderness on her posterior fourchette. Austin did not find sperm during the
examination.
At trial Austin opined that the redness inside Kim’s vagina would not have been
caused by a tampon, Kim’s illnesses (i.e., endometriosis and lupus), or Kim’s prior
cryosurgery (freezing of the cervix six months prior to the assault). Rather, the redness
was most likely associated with nonconsensual sexual intercourse. Further, Austin
opined, Kim’s injuries were consistent with her account of the events of July 5 and 6.
Austin’s forensic report was admitted into evidence without objection. The report
summarized the findings as follows: “Patient attacked and raped last night, then
physically attacked and beaten tonight by some assailant. Exam consistent with recent
physical attack. Exam consistent with history.”
11. Kim’s Death on July 8 and the Autopsy Results
On the night of July 7, Kim obtained an emergency protective order against
Herring.
Around 3:00 p.m. the next day, Officer LaRae Archibald responded to a call from
Kim’s apartment complex. He found Kim dead in her bathtub. Kim’s body had fallen

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backwards into the bath tub, and her head was submerged into the water. A “to-do” list
was found by her purse on the floor, which included getting a restraining order against
Herring. An undated “final farewell” note to her mother was found in a storage box on
her patio. Intravenous drug paraphernalia and Fentanyl patches were at the scene. A
syringe was in her right hand, a blue rubber tourniquet was on her left thigh, and there
were needle puncture marks on her legs.
Dr. George Bolduc performed an autopsy on Kim’s body. His report concluded
that Kim had died by drowning and had “acute Fentanyl toxicity.” Kim had also suffered
what appeared to be a fracture of a portion of cartilage in her neck, and the fracture and
accompanying hemorrhage could have been the result of manual strangulation or other
blunt force trauma. An abrasion on the skin was also consistent with manual
strangulation. There was no evidence that Kim had brain cancer.
12. Search of July 8 and DNA Test Results
On July 8, police searched Herring’s vehicle pursuant to a warrant and seized
seven pornographic video tapes. Inside Herring’s apartment, Detective Archibald found
a mortar and pestle containing a residue of a cocaine-amphetamine-methamphetamine-
oxycodone mixture.
DNA testing of the penile swabs taken the night of July 6 indicated that Herring’s
sperm and Kim’s epithelial cells from her mouth or vagina were on Herring’s penis.
Prosecution expert witness, Nicola Shea, could not account for the presence of Kim’s
DNA, and believed it would have washed away upon bathing. Herring’s blood sample
tested positive for marijuana.
13. Additional Prosecution Evidence
The prosecution introduced evidence that Herring and his ex-wife were in the
process of divorcing in October 1996. One night he brought dinner to her house to
discuss their divorce. She had a glass of wine, passed out, and awoke to Herring shaving
her pubic hair without her permission. Marjorie Cusick, an expert witness, described
battered women’s syndrome to the jury.

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C. D EFENSE E VIDENCE
1. Herring’s Testimony
Herring and Kim began dating on January 26, 2002. Kim told him that she had
abdominal and ovarian cancer. Although he found her attractive and wrote her a love
letter describing his “lustful state,” he accepted the fact that she was unable to have
sexual intercourse due to an illness and denied ever having sexual relations with her. In
an e-mail to a friend, Herring disclosed he was in a new relationship with a woman who
had terminal cancer and he intended to stay with and comfort her until she died.
Herring helped Kim financially, emotionally, and physically. In March 2002,
when Kim said she needed money to go to Houston’s M.D. Anderson Hospital for cancer
treatment, he gave her $4,600 for the trip and surgery. While she was supposedly in
Houston, Kim telephoned Herring and said she had an inoperable brain tumor and less
than a year to live. Herring was extremely distraught and shared this news with his
friends and family.
To help Kim, Herring contacted various friends and colleagues, including an
acupuncturist, nutritionist, and a hospice nurse. In addition, he bought Kim a car stereo,
groceries, and other items.
Herring also took Kim to her doctor’s appointments, including an April 15, 2002,
appointment with Dr. Schten. During the appointment, he gave Dr. Schten a note about
Kim’s brain tumor because he was concerned it was affecting her mentation. Herring
denied raping, burning, or beating Kim as she had told Dr. Schten on April 16.
On May 13, 2002, Herring discovered $2,800 in charges to his credit card made to
Victoria’s Secret, which he later determined were made on the Internet from his
computer. Kim admitted making the charges and agreed to return the items.
Kim told Herring that her family was unsupportive. She also told him at one point
that her family did not want her seeing him. In June 2002, he learned from Kim and
Officer Cingolani that Kim’s family thought he wanted to kill them, but was unaware that
Kim was the source of the misinformation. Although he was “concerned” about Kim’s
relationship with her mother and stepfather, he never threatened them.

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When he spoke to Kim’s mother on June 4, 2002, Herring learned that Kim did
not have cancer and she had used his money to go on a cruise with her brother.
Confused, he laid down on Kim’s couch to think and awoke at midnight on June 5, 2002,
to Officer Hetrick asking him to leave Kim’s apartment. That evening, he tried to file a
police report at the Rohnert Park Police station regarding Kim’s false statement about
treatment in Houston, but the police would not take the report.
Disappointed, Herring decided to visit his family and friends for a few weeks,
traveling to Indiana and elsewhere. He spoke to Kim several times during the trip by
telephone and wanted to continue their relationship.
Herring returned to California on about June 28, 2002, and called her on his way
from the airport. She was apologetic about the events of their relationship, and he went
to her apartment. He was not mad at her, but believed she was mentally ill and needed
his help. Kim gave him a key to her apartment.
On July 2, 2002, Herring asked Kim if she was abusing Fentanyl. Kim denied that
she was. On July 5, Kim was asleep or unconscious from about 2:00 p.m. onward. He
found Kim’s blue bag containing Fentanyl patches, Fentanyl prescriptions, and a rubber
tourniquet, syringes, tubing and needles for intravenous injection. Herring concluded that
Kim, a registered nurse, was injecting Fentanyl drawn from the patches. Afraid she
would hurt herself, Herring hid the bag and called Kim’s sister about it. Around 11:00
that night, Herring noticed Kim was looking for something, but they never discussed the
bag or its contents. Herring then went to sleep. He denied sexually assaulting Kim on
July 5.
Herring also denied Kim’s account to the police of the events of July 6, 2002.
About 6:00 p.m., he surmised, Kim took his credit cards without his permission,
purchased $920 worth of Fentanyl, and lied to him about going to the grocery store.4
4 Jim Strenkofsky, a pharmacist at a Rite-Aid drug store in San Rafael, remembered
that Kim had a Fentanyl prescription filled on the night of July 6, 2002. She had asked
for 20 patches, enough for about 60 days, but she had filled a prescription for the same

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After she returned to the apartment, he asked her where the groceries were. She did not
respond, but sat down on the couch beside him, put his right thumb in her mouth, smiled,
and bit it. He tried to yank his hand away, and she scratched his arm. She tried to scratch
his face, and he grabbed her hands and pushed her onto the sofa. He began to gather his
belongings to leave. She taunted him, inviting him to hit her. As he was retrieving one
of his bags, she grabbed his left hand and bit his left thumb.
Herring then wrestled with Kim, he acknowledged, but in doing so he was merely
trying to get her to release his thumb from her mouth. To this end, he knocked her to the
ground. He hit her in the back three times with the heel of his hand. He bit her shoulder.
And at one point, he grabbed her throat for about five seconds, with “a little bit of a
squeeze,” before he was able to tug his left thumb from her mouth. Herring denied
strangling her, smothering her with a pillow, or threatening her or her brother.
Herring next took his belongings and the blue bag he had hidden the day before,
and left. He drove to the Rohnert Park police department, where he gave the police both
written and oral statements. The oral statement was tape recorded, although Herring
testified that the tape offered in evidence was incomplete. The police also took
photographs of Herring’s injured thumbs.
Herring claimed that the closet doors in Kim’s apartment were off their track
because they were broken previously, not because of any altercation between him and
Kim. He further claimed that Kim’s DNA was on his penis because she bit his thumb
with her mouth on July 6, and he subsequently touched his penis when he urinated on a
wall before entering the police station.
Herring denied that he snorted crushed pills, asserting that the mortar and pestle
(containing the residue of a drug mixture) found in his apartment belonged to Kim. He
believed that Kim laced his salmon lunch with marijuana on July 6, which is why he
tested positive for marijuana. He denied that he watched pornographic tapes at Kim’s
drug too recently. He sold her ten patches for $921.99, which she charged on Herring’s
credit card.

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apartment. He also denied that in October 1996 he shaved Jane Doe’s pubic hair without
her permission.
2. Other Defense Evidence
A number of other witnesses testified for the defense. Dr. Marvin Zwerin, an
osteopathic physician, treated Kim for chronic pain related to endometriosis, migraine
headaches, and lupus, and prescribed Fentanyl for her. Dr. Reiber testified that the
photograph of Kim’s throat structure appeared to show that Kim might have a natural
joint in her larynx, which Dr. Bolduc might have mistaken for a fracture in her thyroid
cartilage. According to Dr. Petracek, female batterers are self-focused, unable to
empathize with their partners, have low impulse control, portray themselves as the
victim, and use denial as a defense. Dr. Kim opined that, after interviewing Herring, he
did not believe Herring had a propensity for violence. Herring’s friends and former
girlfriends denied that he was violent and believed he cared for Kim.
D. VERDICT AND S ENTENCE
Herring was found guilty on counts I (rape), IV (attempted forcible sodomy), VII
(assault by means of force likely to produce great bodily injury), and VIII (false
imprisonment). The jury found him not guilty on counts II and III (sexual penetration),
and was unable to reach a verdict on counts V (forcible oral copulation), VI (criminal
threats) and IX (attempted murder).
Herring was sentenced to an aggregate term of 17 years in state prison, comprised
of: four years for count VII (assault); a consecutive one-year term (one-third the
midterm) on count IV (attempted forcible sodomy); a consecutive upper term of eight
years for count I (rape), and a consecutive four-year term for the great bodily injury
enhancement. The court stayed sentence on count VIII (false imprisonment) pursuant to
section 654.
This appeal followed.

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II. DISCUSSION
To resolve this appeal, we need address only the first of Herring’s contentions:
that the admission of certain statements violated his Sixth Amendment right to confront
and cross-examined witnesses under Crawford.
A. A DMISSION OF H EARSAY S TATEMENTS
Herring contests the admission of four sets of statements allegedly made by Kim
and introduced at trial: (1) the statements testified to by Officer Boggeri, which he said
were made on the night of July 6, during the officers’ initial contact with Kim at her
apartment; (2) the statements testified to by Officer Hetrick, which she said Kim made on
the night of July 6, while awaiting treatment at the hospital; (3) Kim’s tape-recorded
statement to police, which she gave upon her return to her apartment around 3:00 a.m. on
July 7; and (4) statements testified to by nurse Austin, which she said Kim made
beginning around 3:45 a.m. on July 7 during a sexual assault examination. These
statements, he contends, were admitted in violation of his Sixth Amendment right to
confront and cross-examine witnesses.
1. Waiver
As a threshold matter, the People contend that Herring waived his confrontation
clause challenge by not raising it at trial. Although Herring moved in limine to exclude
Kim’s statements on the ground the prosecutor had failed to comply with the procedural
requisites of Evidence Code section 1370, and defense counsel asserted that Evidence
Code section 1370 was intended to comply with constitutional guarantees, the People
contend the objections were not sufficiently specific to preserve the constitutional claim.
And while Herring in pro per referred to his confrontation rights in his motion for a new
trial, the People claim this effort came too late.
We do not agree. “Reviewing courts have traditionally excused parties for failing
to raise an issue at trial where an objection would have been futile or wholly unsupported
by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237-238.)
At the time of trial, Evidence Code section 1370 had been upheld as facially
constitutional. Although Herring could have argued that Kim’s statements lacked

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adequate indicia of reliability for admissibility under Ohio v. Roberts (1980) 448 U.S. 56
(Roberts), the confrontation clause challenge available after Crawford would have been
futile at the time of trial. In any event, we have discretion to consider constitutional
claims even if they were not timely raised in the trial court. (See People v. Blanco (1992)
10 Cal.App.4th 1167, 1172-1173.)
2. Evidentiary Basis for the Statements’ Admission
As out-of-court statements offered for their truth, Kim’s assertions to Boggeri,
Hetrick, the officers in the recorded interview, and nurse Austin were hearsay. They
were admitted at trial pursuant to Evidence Code section 1370, which provides a hearsay
exception for a victim’s statement to medical personnel or law enforcement that
“purports to narrate, describe, or explain the infliction or threat of physical injury upon
the declarant,” if it was made at or near the time of the injury or threat, the victim is
“unavailable” as a witness, and the statement “was made under circumstances that would
indicate its trustworthiness.” (Evid. Code, § 1370.)5
As an alternative to Evidence Code section 1370, the People argue that Kim’s
statements also fell within the hearsay exception for spontaneous declarations under
5 Evidence Code section 1370 states in pertinent 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 Section 240, [¶] (3) The statement was made at or
near the time of the infliction or threat of physical injury. Evidence of statements made
more than five years before the filing of the current action or proceeding shall be
inadmissible under this section. [¶] (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.”

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Evidence Code section 1240. If admissible under Evidence Code section 1240,
confrontation clause analysis under Crawford might be unnecessary if we were to
conclude that the hearsay exception for spontaneous declarations was established at
common law. In the matter before us, however, we need not address this interplay
between Evidence Code section 1240 and the confrontation clause. A spontaneous
statement under Evidence Code section 1240 is one which “[p]urports to narrate,
describe, or explain an act, condition, or event perceived by the declarant; and [¶] [] [w]as
made spontaneously while the declarant was under the stress of excitement caused by
such perception.” The record does not demonstrate that the challenged statements were
in fact “made spontaneously while [Kim] was under the stress of excitement” caused by
the attack, except perhaps with respect to her initial statement to Officer Boggeri. And as
to this statement, we conclude post that its admission did not violate the confrontation
clause anyway. We therefore have no need to determine the significance of its potential
admissibility under Evidence Code section 1240.
3. The Confrontation Clause
The Sixth Amendment confrontation clause provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” Before Crawford, the admission of an unavailable witness’s statement
against a criminal defendant was permissible under Roberts, supra, 448 U.S. at page 66,
if “(1) ‘the evidence falls within a firmly rooted hearsay exception’ or (2) it contains
‘particularized guarantees of trustworthiness’ such that adversarial testing would be
expected to add little, if anything, to the statements’ reliability.” (Lilly v. Virginia
(1999) 527 U.S. 116, 124-125.)
Crawford rejected continued application of the Roberts rule with respect to
“testimonial” hearsay. The court held that “[w]here testimonial statements are at issue,
the only indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” (Crawford, supra, 124 S.Ct. at
p. 1374.) Thus, testimonial hearsay is admissible only if the declarant is unavailable and
there has been a prior opportunity for cross-examination of the declarant. (Ibid.)

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Because Kim died before criminal proceedings began, she was unavailable to
testify at trial. There was no dispute that Herring lacked any pretrial opportunity to
cross-examine her. Crawford therefore applies to preclude Kim’s hearsay statements, if
those statements were “testimonial.”
Crawford declined to “spell out a comprehensive definition of ‘testimonial.’”
(Crawford, supra, 124 S.Ct. at p. 1374.) The court did state that “[w]hatever else the
term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations. These are the modern
practices with closest kinship to the abuses at which the Confrontation Clause was
directed.” (Ibid., italics added.) Although the court did not define the term
“interrogation” either, it suggested the term should be construed broadly, in its
“colloquial, rather than any technical legal, sense.” (Id. at p. 1365, fn. 4.) In Crawford,
a declarant’s “recorded statement, knowingly given in response to structured police
questioning, qualifie[d] under any conceivable definition.” (Ibid.)
Further examination of Crawford discloses that police interrogations implicate
core Sixth Amendment concerns because police officers have adopted the investigative
functions that were previously handled by justices of the peace in England. (Crawford,
supra, 124 S. Ct. at pp. 1364-1365].) ‘Justices of the peace conducting examinations
under the Marian statutes . . . had an essentially investigative and prosecutorial function.
[Citations.] England did not have a professional police force until the 19th century
[citation], so it is not surprising that other government officers performed the
investigative functions now associated primarily with the police. The involvement of
government officers in the production of testimonial evidence presents the same risk,
whether the officers are police or justices of the peace.” (Id. at p. 1365.)
Thus, under Crawford, statements obtained during police interrogations are
testimonial fundamentally because police officers who obtain a statement during an
interrogation are performing investigative and evidence-producing functions formerly
handled by justices of the peace. The use of such an out-of-court statement to convict a

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defendant implicates the central concerns underlying the confrontation clause.
(Crawford, supra, 124 S.Ct. at p. 1365.)
In light of this rationale, statements obtained through police officer questioning at
or near the scene of a crime would be testimonial under Crawford if obtained by an
officer acting in an investigative capacity to produce evidence in anticipation of a
potential criminal prosecution. This formulation reflects Crawford’s emphasis on
purposeful conduct by government officers. (See, e.g., Crawford, supra, 124 S.Ct. at
p. 1367, fn. 7] [“[i]nvolvement of government officers in the production of testimony
with an eye toward trial presents unique potential for prosecutorial abuse . . . .”].) The
production of evidence for use in a potential prosecution through purposeful questioning
has greater implications for core confrontation clause concerns than questioning
incidental to other law enforcement objectives, such as exigent safety, security, and
medical concerns.”6
With this in mind, we examine each of the subject statements in their context.
4. Boggeri’s Testimony re Kim’s Statement at the Scene
Boggeri arrived at Kim’s apartment in response to a 911 call. At the scene, he
observed that she was upset and had multiple injuries that had apparently been sustained
recently. The area was unsecured and the situation uncertain. There is no indication in
the record that the officers were aware of the nature of the crime, the identity of the
assailant, whether the assailant was on or near the premises, or whether he possessed any
weapons posing a danger to them or to others. When Boggeri merely asked Kim how
she sustained her injuries, she responded that Herring had punched her several times and
tried to suffocate her with a pillow and choke her with his hands.
6 The California Supreme Court has granted review in cases addressing whether
statements obtained through police officer questioning in the field are testimonial. (See
People v. Kilday, previously published at 123 Cal.App.4th 406, review granted and
opinion superseded January 19, 2005 (S129567); People v. Cage, previously published
at 120 Cal.App.4th 770, review granted and opinion superseded October 13, 2004,
(S127344); People v. Adams, previously published at 120 Cal.App.4th 1065, review
granted and opinion superseded October 13, 2004 (S127373).)

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Based on the record before us, we conclude that Officer Boggeri was not
producing evidence in anticipation of a potential criminal prosecution in eliciting basic
facts from Kim about the nature and cause of her injuries. Because the responding
officers were still principally in the process of accomplishing the preliminary tasks of
securing and assessing the scene, Kim’s statement to Boggeri was not testimonial.7
5. Hetrick’s Testimony Re Kim’s Statement at the Hospital
Kim’s statement to Officer Hetrick was made at the hospital, while she awaited
treatment. By that time, she had been removed from the crime scene, and the police had
secured the area and had an opportunity to assess and resolve any other exigent matters.
In addition, through Kim’s statement to Boggeri, Hetrick was aware of the nature of the
alleged crimes and the identity of the likely assailant. This enabled Hetrick to conduct
more purposeful and focused questioning. Furthermore, Hetrick asked not just about the
immediate events of July 6, but also about incidents of prior abuse by the same assailant.
Through this inquiry Kim disclosed the alleged July 5 rape.
During her attempts to elicit information from Kim, Hetrick was acting in an
investigatory capacity to produce evidence in anticipation of a potential criminal
prosecution. Accordingly, the statement she obtained is testimonial under Crawford and
was inadmissible absent a prior opportunity for cross-examination.
6. Recorded Statement on July 7
The tape-recorded statement, obtained by police in Kim’s apartment, was
obtained in circumstances similar to the interrogation involved in Crawford. As in that
case, Kim’s statements were knowingly given, recorded, and the product of structured
questioning. (See Crawford, supra, 124 S.Ct. at p. 1365, fn. 4.) Kim’s recorded
statement given in her apartment was therefore testimonial hearsay. Indeed, respondent
concedes this point.
7 The Crawford court did not decide whether nontestimonial hearsay is now
altogether outside the scope of the confrontation clause or whether such hearsay
continues to be subject to the Roberts rule. (See Crawford, supra, 124 S.Ct. at pp. 1370,
1374.) The parties do not raise the issue, and we need not address it.

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7. Statements to Nurse Austin on July 7
Lastly, we come to Kim’s statements to nurse Austin. Austin was not a police
officer, but a sexual assault nurse-examiner. The obvious purpose of her questioning,
however, was to produce evidence to assist the police and any subsequent prosecution.
According to Austin’s testimony, a sexual assault examination “consists of an
interview that is recorded on a form that is developed by the Office of Criminal Justice
Planning, and goes along usually with the detectives’ exam--examination and interview
of the patient. And then it’s a physical exam for evidence collection.” (Italics added.) It
has, therefore, a law enforcement rather than medical purpose.
Furthermore, the examination took place after Kim had been examined and treated
by Dr. Schulkin, and was prompted by the police for forensic purposes. On the forensic
medical report summarizing the findings of the examination, Officer Hetrick signed the
following statement: “I request a forensic medical examination for suspected sexual
assault at public expense.” Kim herself was advised of the evidentiary purpose of the
examination, as her consent form states: “I understand that a forensic medical
examination for evidence of sexual assault at public expense can, with my consent, be
conducted by a health care professional to discover and preserve evidence of the assault.
If conducted, the report of the examination and any evidence obtained will be released to
law enforcement authorities. . . .” (Italics added.) The statements Kim made to nurse
Austin, therefore, are distinguishable from statements a victim might make to medical
personnel for purposes of medical diagnosis and treatment.
Moreover, by the time of the examination by Austin, the police had already
questioned and arrested Herring as the assailant, questioned and conducted a recorded
interview with Kim, and processed Kim’s apartment as a crime scene. Under the totality
of circumstances, the plain purpose of the interaction between Austin and Kim was to

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gather evidence, and Kim’s oral statements to nurse Austin were testimonial under
Crawford.8
In sum, Kim’s statement to Officer Boggeri when he arrived at the scene was not
testimonial, but her statements to Officer Hetrick at the hospital, to the police during a
recorded interview in her apartment, and to nurse Austin during the sexual assault
examination, were testimonial. Because Herring did not have an opportunity to cross-
examine Kim on these statements, their admission into evidence violated his Sixth
Amendment rights under Crawford.
8. Harmless Error.
We next consider whether the admission of Kim’s statements to Officer Hetrick
and nurse Austin, as well as her recorded interview with police, constituted mere
harmless error. Because the error was of constitutional dimension, we apply the rule set
forth in Chapman v. California (1967) 386 U.S. 18. Under the Chapman standard, errors
are harmless only if they did not contribute to the result, in that they were “‘unimportant
in relation to everything else the [factfinder] considered on the issue in question, as
revealed in the record.’ [Citation.]” (People v. Neal (2003) 31 Cal.4th 63, 86.)
Herring was found guilty of rape, attempted forcible sodomy, assault by means of
force likely to produce great bodily injury, and false imprisonment. With respect to the
attempted sodomy and false imprisonment charges, there was barely any evidence
besides Kim’s erroneously-admitted statements. Austin’s sexual examination disclosed
some physical evidence of attempted sodomy, such as a reddened area at the entrance of
her anus. There was, however, no evidence that Herring was the perpetrator, or any
admissible statement from Kim that sodomy had in fact been attempted. Nor was there
any evidence, other than Kim’s inadmissible statements, of false imprisonment.
8 Kim’s oral statements to nurse Austin were recorded in Austin’s forensic report,
from which Austin read at trial and which was entered into evidence. The forensic report
itself may well be admissible as a business record, pursuant to Evidence Code section
1271. But Kim’s hearsay statements within the forensic report are still testimonial and
inadmissible under Crawford.

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Therefore, the admission of Kim’s statements was clearly prejudicial error as to the
attempted forcible sodomy and false imprisonment convictions.
A somewhat closer question arises with respect to the charges of rape and assault
by means likely to produce great bodily injury. In regard to the rape charge, the hospital
records note: “same alleged person of physical abuse had sexually abused her last night
at approximately 1900.” This “same alleged person” was identified elsewhere in the
records as Kim’s ex-boyfriend. In addition, Austin noted in her forensic report that Kim
was “attacked and raped last night,” referring apparently to July 5. There was also
physical evidence of rape gathered during the sexual assault examination: bruising and
swelling of Kim’s hymen, reddened and irritated tissue inside her vagina near the
entrance, and abrasions on her vagina. Austin opined that the redness inside her vagina
was most likely associated with nonconsensual sexual intercourse. In addition, evidence
that Kim’s endometriosis made intercourse painful suggests that any intercourse in which
she engaged was nonconsensual. Penile swabs collected from Herring the night of July 6
(a day after the rape) indicated that his sperm and cells from Kim’s mouth or vagina were
on his penis. From this evidence, the jury could have concluded that Herring raped Kim
on July 5 as charged.9
Similarly, there was certainly evidence from which the jury could have found
Herring guilty of assault by means likely to produce great bodily injury. Neighbor
Leavitt saw that Kim had blood on her face and heard her say she had been beaten by her
boyfriend. Boggeri and Hetrick observed her bruises, lacerations, and abrasions. Kim
told Boggeri that Herring punched her several times, tried to suffocate her with a pillow,
and attempted to choke her. Paramedic Westrope saw that Kim’s clothes were torn and
she had injuries around her lips, abrasions on the side of her neck, and cuts on her knees
and shoulders. She said her ex-boyfriend had hit her with his hand, grasped her neck, and
9 There was also evidence that Kim told Dr. Schten in April 2002 that Herring had
raped her in the past. The information, however, charged that the rape occurred on July
5, 2002.

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tried to strangle her. Dr. Schulkin confirmed the injuries observed by the officers and
paramedic, and Kim recounted that she was punched in the head and face and was
choked. Hospital records indicated Herring bit her, assaulted her, and tried to suffocate
her. Photographs of Kim on July 6, showing her injuries, were shown to the jury.
Nevertheless, we cannot say that the admission of Kim’s testimonial statements
did not contribute to the rape and assault convictions beyond a reasonable doubt. Kim’s
credibility was critical to the resolution of the case, particularly since there was evidence
she had not always been honest or accurate in her claims in the past. The admission of
three additional reports of the disputed events, generally consistent in substance,
buttressed her credibility. Furthermore, her inadmissible statements to Officer Hetrick,
nurse Austin, and the officers during the recorded interview were much more detailed,
vivid, and comprehensive than her shorter and less dramatic statements to the paramedic
and emergency room doctor. As such, the evidence admitted in violation of Crawford
was not merely cumulative of properly-admitted evidence. While there was significant
evidence of an assault, there was less evidence of “means of force likely to produce great
bodily injury” (§ 245, subd. (a)(1)), and what admissible evidence there was on this point
may well have appeared more persuasive in light of Kim’s inadmissible descriptions of
the July 6 attack. Moreover, by introduction of the audiotaped interview with police, the
jury actually heard Kim’s voice describing the events she claimed occurred.
We are also mindful of the prosecutor’s reliance on the statements in closing
argument with respect to the rape and assault charges. In particular, the prosecutor told
the jury that in sexual assault cases, nothing more was needed to convict the defendant
than the victim’s own word. And during their deliberations, the jury requested readbacks
of Hetrick’s and Austin’s testimony. Based on the record, we cannot say the improperly-
admitted evidence was “unimportant” to the jury in reaching its decision.
In the final analysis, the erroneous admission of Kim’s statements to Officer
Hetrick, to the officers in her recorded interview, and to nurse Austin during the sexual
assault examination was not harmless beyond a reasonable doubt. We must therefore

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reverse Herring’s convictions. In light of this conclusion, we need not address Herring’s
other contentions regarding prosecutorial misconduct and sentencing error.
III. DISPOSITION
The judgment is reversed.
STEVENS, J.
We concur.
JONES, P.J.
GEMELLO, J.

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