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Name: People v. Vargas
Case #: B211821
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/22/2009

Statements made to a nurse conducting a sexual-assault examination for purpose of collecting evidence were inadmissible hearsay. In his appeal from convictions for sexual assault, appellant challenged the introduction under Crawford v. Washington (2004) 541 U.S. 36 of statements made by the victim to the nurse conducting the sexual assault examination that the perpetrator had penetrated her with both his penis and his finger. He contended that the statements were inadmissible testimonial hearsay under Crawford, as analyzed in People v. Cage (2007) 40 Cal.4th 965 and People v. Geier (2007) 41 Cal.4th 555. The appellate court agreed, finding that the statements were testimonial and therefore inadmissible. The nurse acted in an agency relationship with law enforcement because she examined and questioned the victim for the purpose of collecting evidence to be used in the prosecution. The interview was intended to make a record and not to assist in a contemporaneous medical situation. However, the court found that the error was harmless beyond a reasonable doubt as to the forcible rape conviction, but not as to his conviction of foreign object rape. Since there was other physical evidence of the rape such as semen, the admission of the testimony was harmless as to the rape. Since there was no independent evidence supporting the allegation of digital penetration, it cannot be said that the error in its admission was harmless. Therefore, the latter count had to be reversed.