81 Cal.App.5th 133
Cal. Ct. App.2022Background
- Jury convicted Kejuan Clark of rape, forced oral copulation, false imprisonment, first‑degree burglary, and robbery in concert; jury found gang enhancements true; Clark admitted a prior strike and an on‑bail enhancement.
- Crimes occurred July 25, 2015: Clark had sex with the victim in her home while gang associates stole the victim’s TV, laptop, and phone; victim testified she did not know Clark and did not consent.
- Defense theory: victim knew Clark, had prior contacts with gang members (including the defendant’s friend/son), and had invited or consented to sex; defense sought to admit reputation/evidence of the victim’s sexual history to impeach credibility.
- Trial court excluded testimony about the victim’s alleged promiscuity under the rape‑shield statute (Evid. Code §1103) and Evidence Code §352; allowed limited impeachment on specific denials but barred reputation/sexual‑history evidence.
- Posttrial, Clark argued Assembly Bill No. 333 changed the standard for §186.22(b) gang enhancements (requiring predicate offenses to be “collective” or in concert); the Court of Appeal rejected that interpretation and affirmed the enhancement.
- Court directed correction of a clerical error in the abstract of judgment to reflect the correct statute for forced oral copulation (Pen. Code §288a(c)(2)(A)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of victim’s sexual‑history/reputation evidence | Evidence barred by rape‑shield (Evid. Code §1103(c)(1)) and §352; not probative of veracity | Needed to impeach credibility and show victim knew gang/defendant; constitutional right to present a defense and confront witnesses | Exclusion affirmed. Evidence not necessary to impeach credibility and was irrelevant to whether victim knew gang/defendant; no abuse of discretion or constitutional violation |
| Constitutional challenge to exclusion (due process / confrontation / right to present a defense) | Limitation is proper when evidence is irrelevant or collateral; court’s limits were reasonable | Exclusion prevented effective impeachment on a central credibility issue | Denied. Excluded evidence was irrelevant; limitation did not violate due process or confrontation rights |
| Effect of Assembly Bill No. 333 on gang enhancement (§186.22(b)) | People: statute’s plain language allows establishing a pattern by (a) offenses on separate occasions or (b) offenses by two or more members; predicates here satisfy that test | Defendant: AB 333 requires predicate offenses be committed collectively/in concert by gang members, making proof here insufficient | Court interprets §186.22 to permit either showing and rejects the “concert‑only” reading; enhancement upheld because predicate offenses by different members on separate occasions were shown |
| Clerical/statutory error in judgment (wrong code cited for oral copulation) | Prosecutor/trial court acknowledged citation error as de minimis | Defendant objected to incorrect statutory citation | Court directs amendment of the abstract to show Penal Code §288a(c)(2)(A) for forced oral copulation |
Key Cases Cited
- People v. McClanahan, 3 Cal.4th 860 (Cal. 1992) (on scope of on‑bail enhancement and relation to prior felony convictions)
- People v. Fontana, 49 Cal.4th 351 (Cal. 2010) (caution against allowing impeachment exceptions to swallow rape‑shield protections)
- People v. DeSantis, 2 Cal.4th 1198 (Cal. 1992) (no constitutional right to present irrelevant sexual‑history evidence)
- People v. Bautista, 163 Cal.App.4th 762 (Cal. Ct. App. 2008) (limits on cross‑examination under Confrontation Clause reviewed for materiality of impeachment)
- People v. Scott, 58 Cal.4th 1415 (Cal. 2014) (statutory interpretation principles; look to plain text first)
- People v. Loeun, 17 Cal.4th 1 (Cal. 1997) (avoid statutory readings that render language surplusage)
- People v. Delgado, 74 Cal.App.5th 1067 (Cal. Ct. App. 2022) (alternative appellate view that “collectively” requires concerted conduct)
- People v. Sek, 74 Cal.App.5th 657 (Cal. Ct. App. 2022) (holding AB 333 changes apply retroactively)
- People v. E.H., 75 Cal.App.5th 467 (Cal. Ct. App. 2022) (same on retroactivity of AB 333)