238 Cal. App. 4th 1274
Cal. Ct. App.2015Background
- Defendant Gleiston Porcinode Andrade was convicted by a jury of six counts of forcible oral copulation (Pen. Code § 288a(c)(2)) and seven counts of forcible rape (§ 261(a)(2)) involving five victims; jury found multiple-victim aggravating allegations true (§ 667.61(e)(4)).
- Victims described similar MOs: pickup near International Blvd/High St., threats with a gun (or claim of being a police officer), use of condoms, oral and vaginal assaults in isolated industrial areas; several identified Andrade in later photo lineups.
- DNA tied Andrade to two assaults (oral swab match and condom match); officers recovered a BB gun under a vehicle seat and found a Toyota/Corolla with a FasTrak and Mercedes-related documents linking him to a Mercedes previously owned.
- At trial the court excluded defense proffers of other similar open cases and limited cross-examination about potential third-party perpetrators; one victim (Jane Doe IV) was unavailable and her preliminary hearing testimony was read into evidence after the court found the prosecution exercised due diligence.
- Andrade was sentenced under the One Strike law (Pen. Code § 667.61) to an aggregate 195 years to life (13 consecutive 15‑to‑life terms); appeal raised evidentiary, instructional, and sentencing challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of evidence of other similar open cases / cross-examination limits | Prosecution: evidence of other uncharged similar rapes was irrelevant and lacked link to a known suspect; exclusion proper | Andrade: excluded evidence would show rapes continued after his arrest and rebut pattern-based arguments; limits on cross-exam violated due process | Court: exclusion not an abuse of discretion; proffer lacked distinctive signature linking third party; limits did not violate confrontation or due process. |
| Admission of unavailable witness’s (Jane Doe IV) preliminary hearing testimony | Prosecution: exercised due diligence to locate witness; prior testimony admissible because prior cross-exam occurred | Andrade: prosecution failed to show due diligence; defense lacked adequate prior cross-examination opportunity | Court: prosecution used reasonable diligence; prior hearing provided adequate opportunity to cross-examine; admission constitutional. |
| Presence of victim support person during testimony | Prosecution: § 868.5 entitles victims to support persons; defense stipulated | Andrade: lack of a case-specific necessity hearing violated confrontation rights | Court: claim waived by no objection; where support person non-testifying and no prejudice shown, no constitutional error. |
| Failure to give certain jury instructions (CALCRIM Nos. 358, 359; Mayberry; reasonable-doubt wording) | Prosecution: any omission harmless because independent evidence strong and standard instructions adequate | Andrade: court had sua sponte duty to give corpus delicti and cautionary statements; Mayberry instruction on reasonable belief in consent required; reasonable‑doubt instructions inadequate | Court: failure to give CALCRIM 359 and 358 harmless beyond a reasonable doubt; no substantial evidence to require Mayberry instruction; CALCRIM reasonable-doubt wording constitutional. |
| Sentencing under One Strike and multiple punishments (Pen. Code § 667.61 and § 654) | Prosecution: One Strike mandates consecutive life terms for each qualifying offense involving separate victims or separate occasions; legislature removed prior limit | Andrade: only one life term per victim should be imposed; multiple One Strike applications (and consecutive terms) violate § 654 and amount to cruel and unusual punishment | Court: statutory text, precedent, and post-2006 legislative change permit consecutive One Strike terms for each qualifying offense; § 654 inapplicable because offenses involved separate victims/occasions; sentence not cruel and unusual. |
| Conduct credits and clerical sentencing errors | Prosecution (AG): agreed correction needed | Andrade: entitled to presentence conduct credits and correction removing mistrial/ acquittal count | Court: remanded for modification: award 1012 days total (including 15% conduct credit) and remove conviction reference for count 11. |
Key Cases Cited
- People v. Elliott, 53 Cal.4th 535 (discussing admissibility of third‑party culpability evidence)
- People v. Suff, 58 Cal.4th 1013 (analysis of patterns/characteristics for third‑party culpability)
- People v. Page, 44 Cal.4th 1 (limits on third‑party culpability evidence)
- People v. Herrera, 49 Cal.4th 613 (standards for admissibility of prior testimony and due diligence/unavailability)
- People v. Alvarez, 27 Cal.4th 1161 (corpus delicti instruction requirement when extrajudicial statements are evidence)
- Victor v. Nebraska, 511 U.S. 1 (upholding "abiding conviction" language for reasonable doubt instruction)
- People v. Williams, 4 Cal.4th 354 (Mayberry instruction—reasonable‑belief‑of‑consent standard)
- People v. Jones, 25 Cal.4th 98 (history and interpretation of One Strike sentencing limits)
- People v. Valdez, 193 Cal.App.4th 1515 (One Strike law permits multiple life terms tied to offenses and victims)
- People v. Rodriguez, 207 Cal.App.4th 204 (legislative change removed former restriction limiting One Strike to one life term per victim per occasion)