Ramirez

I.

INTRODUCTION

Defendant Guillermo Ramirez appeals from a final judgment following a jury trial in which he was convicted of raping an intoxicated person (Pen. Code, § 261, subd. (a)(3)). The trial court sentenced Ramirez to the midterm of six years in state prison and imposed a $1,200 restitution fine, which was suspended pending the successful completion of parole, and $813.96 in victim restitution.

Ramirez challenges both his conviction and sentence, contending that the trial court (1) erred in allowing the prosecutor to introduce evidence of statements the victim made to other individuals hours after the rape, under the spontaneous statement exception to the hearsay rule; (2) erred in refusing to instruct the jury with CAJLJIC 4.35, the general mistake of fact instruction; and (3) abused its discretion by sentencing Ramirez to state prison rather than probation.

We conclude that the trial court erred in allowing in evidence statements the victim made to third parties about the rape for purposes other than as allowed pursuant to the fresh-complaint doctrine. However, the error did not prejudice Ramirez. We further conclude that the trial court was correct in…