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Name: People v. Vu
Case #: H022334
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 06/04/2002
Subsequent History: Opinion withdrawn by order of court, depublication ordered 8/21/02.

In a rape prosecution, it was not error for the trial court to prohibit the cross-examination of the rape victim concerning statements she had made to appellant about being pregnant. The victim did not claim to be a “sexual innocent” and an alleged claim of pregnancy was not inconsistent with any of her statements. Therefore, Evidence Code section 1103, subdivision (c)(4) was inapplicable. Further, appellant was not denied his right to due process or a fair trial because the evidence was properly excluded. It was not prosecutorial misconduct for the prosecutor to have called as a witness a nun, dressed in a habit, to testify concerning the character of the victim. Although the prosecution made a mistake, as the nun testified she knew nothing about the victim’s reputation for truthfulness, it was not misconduct. It was not reasonably probable that the omission of her testimony would have resulted in a verdict more favorable to appellant. However, appellant’s conviction for unlawful penetration with a foreign object had to be reversed because the court neglected to instruct the jury on the lesser included offense of sexual battery. The victim testified that appellant’s fingers “did not go inside” so it was reasonably probable that a different result would have occurred had the jury been instructed on sexual battery.