People v. Vivano CA1/1, A141737

Background

In July 2000 a 19‑year‑old woman was abducted in Oakland, taken to a remote area, and raped by four men; SART evidence (including sperm) was collected at the hospital.
In 2009 Vivano’s DNA profile was entered into CODIS and matched sperm recovered from the victim; probability of a coincidental match was ~1 in 1 quadrillion. He was arrested in 2010 and tried in 2014.
The victim testified at trial and identified Vivano as the driver and one of the rapists, noting distinctive facial acne scarring; jurors also heard SART findings and photographs through a hospital program director.
During trial a testifying Oakland officer made an overheard comment in an elevator—"I just hope they send him to prison"—in the presence of several jurors; the court individually and collectively admonished jurors and defense made no motion below.
The trial court excluded defense cross‑examination about an unrelated 2001 Las Vegas sexual assault (no evidence it was a false report) and allowed limited admission of SART records but not testimonial hearsay beyond what the victim testified to.
A jury convicted Vivano of multiple counts (forcible rape, kidnapping, assault); he was sentenced to 52 years to life. The Court of Appeal affirmed.

Issues

Issue	People (Plaintiff) Argument	Vivano (Defendant) Argument	Held
1. Officer’s overheard comment in jurors’ presence	Court’s admonition and jurors’ assurances cured any prejudice; no further relief required	Comment prejudiced jury and undermines verdict; reversible error	Forfeited below; even on merits no prejudice — jurors said they would disregard comment, and contact did not create substantial likelihood of harm
2. Admission of victim’s statements to SART nurse (race/number of assailants) / Confrontation Clause	Admission was limited, victim testified at trial, so confrontation clause not implicated; statements about injuries/photos admissible as objective records	Victim’s out‑of‑court statements were testimonial and their admission violated Confrontation Clause and prejudiced case	Forfeiture doubtful but claim rejected: victim testified at trial so prior statements admissible; admission not prejudicial (consistent with trial testimony)
3. Prosecutor’s rebuttal closing (alleged burden‑shifting)	Prosecutor permissibly commented on defense’s failure to present experts/witnesses to contest DNA in response to defense argument	Prosecutor shifted burden of proof, implying defendant must produce evidence of innocence	Not improper: comments responded to defense argument; permissible to note lack of evidence from defense and failure to call logical witnesses; no reference to failure to testify
4. Exclusion of cross‑examination about unrelated 2001 Las Vegas sexual assault and IAC claim	Prior report irrelevant and not shown to be false; limits on cross‑examination were proper; counsel’s performance not prejudicial	Court abused discretion and violated confrontation clause by barring cross‑examination; counsel ineffective for not pursuing or developing the report	Court did not abuse discretion: no indication report was false and evidence excluded was not probative of credibility; confrontation claim forfeited and meritless; no ineffective assistance because no prejudice shown

Key Cases Cited

Remmer v. United States, 347 U.S. 227 (presumption of prejudice from unauthorized juror contact)
Parker v. Gladden, 385 U.S. 363 (juror contact by court officer can be prejudicial)
Crawford v. Washington, 541 U.S. 36 (testimonial statements and confrontation clause principles)
Delaware v. Van Arsdall, 475 U.S. 673 (Confrontation Clause and scope of cross‑examination limits)
People v. Lewis, 46 Cal.4th 1255 (standard for reviewing juror contact and prejudice)
People v. Huynh, 212 Cal.App.4th 285 (admissibility of SART photographs/records)
People v. Quartermain, 16 Cal.4th 600 (trial court’s latitude to limit credibility cross‑examination)