THE PEOPLE, Plаintiff and Respondent, v. GLEISTON PORCINODE ANDRADE, Defendant and Appellant.
No. A135438
First Dist., Div. Four
July 24, 2015
1274
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Jeffrey M. Laurence and Arthur P. Beever, Deputy Attorneys General, for Plaintff and Respondent.
OPINION
REARDON, J.—A jury convicted defendant Gleiston Porcinode Andrade of six counts of forcible oral copulation (
I. EVIDENCE AT TRIAL
A. Rape of Jane Doe I
On April 17, 2009, 20-year-old Jane Doe I had been visiting with her sister at a friend‘s house in Oakland. When it was time for Jane Doe I‘s sister to go back home to Sacramento, she dropped Jane Doe I off near the Fruitvale Bay Area Rapid Transit (BART) station. Jane Doe I admitted that she had done some prostituting, but testified that she was not working that night. As Jane Doe I was walking to the station, she saw a black two-door Mercedes drive by in the opposite direction. The car parked, and a man, later identified as appellant, got out and began walking behind her. Appellant soon caught up with her, grabbed her arm, and put a gun in her back. He told Jane Doe I not to say anything, pulled her back to the Mercedes, and put her in the рassenger seat. Once in the car, appellant pointed the gun at Jane Doe I‘s leg. Then he started to drive, stopping at two places, but moving on again, apparently uncomfortable with the amount of lighting in those areas. At some point, Jane Doe I asked appellant why he was doing this, and appellant struck her in the face. Eventually, after crossing High Street, he turned onto Tidewater Street and stopped in an industrial area. He demanded that Jane Doe I perform oral
Appellant then drove the car to an alley. Appellant told Jane Doe I that he used to work for the Oakland Police Department, and that he would find her if she told anyone. He told her to get out of the car. Jane Doe I began walking towards the BART station in a daze. Some passersby came to her aid and drove her to Highland Hospital, where she was examined.
Lauri Paolinetti, a physician‘s assistant at Highland Hospital, testified as an expert in sexual assault examinations. She performed a sexual assault exam on Jane Doe I around 2:25 a.m. on April 18. Jane Doe I complained of mouth pain, and she had bruising and tenderness on her arms. There was also an abrasion to her right upper lip and bruising on her neck. Paolinetti noticed an injury to Jane Doe I‘s posterior fourchette, which she explained was the most commonly injured area in sexual assault cases. Paolinetti collected oral, vaginal, and rectal swabs from Jane Doe I, as well as the clothing she was wearing.
Oakland Police Department Officer Michael Stolzman took Jane Doe I‘s statement at the hospital. Afterwards, he used her description to find the location he believed was the scene of her rape, which was a “very industrial street with just commercial buildings; no retail shops.” However, he was unable to locate any evidence there.
Investigators showed Jane Doe I photo lineups on three occasions. In the first two lineups, which occurred April 29 and 30, Jane Doe I did not recognize any suspects. In the third lineup, which Jane Doe I saw on October 28, she identified appellant as the man who raped her.
B. Rape of Jane Doe II
On the evening of April 19, 2009, 16-year old Jane Doe II was working as a prostitute near 46th Avenue and International Boulevard in Oakland. She saw a “bluish . . . Toyota or . . . Chevrolet” truck pull up. Jane Doe II got in and noticed that the interior was leather, with bench-style seating in the front. She asked the driver, later identified as appellant, whether he was an undercover officer, and appellant responded that he was not. Jane Doe II did not have a condom with her and asked to get one. Appellant drove her to a liquor store, where Jane Doe II purchased a condom.
As appellant began to drive Jane Doe II back to where he had picked her up, he said, ” ‘I do this to a lot of the girls. . . . I take them back there.’ ” When Jane Doe II got out of the truck, appellant told her, ” ‘No matter who you run to or tell, I don‘t exist.’ ” Jane Doe II went to a gas station, where a lady let her use her phone and drove Jane Doe II home. Later, Jane Doe II went to the hospital.
Denae Reed, a physician‘s assistant at Highland Hospital, performed a sexual assault exam on Jane Doe II. Reed testified as an expert on such exams. Using a special dye, Reed opined that Jane Doe II had sustained a minor injury to her posterior fourchette. Reed collected swabs and Jane Doe II‘s clothing.
Oakland Police Department Officer David Mathison took Jane Doe II‘s statement. He went to the location that Jane Doe II had described, which was the 4300 block of Tidewater Street. He was unable to locate a condom. Later, Jane Doe II was shown four photo lineups. She did not identify anyone in the first two. In the third, she identified an individual who looked similar to her rapist, but she said that it was not him. In the fourth lineup on October 30, 2009, she identified a picture of appellant as her rapist. She cried and shook as she made the identification.
C. Rape of Jane Doe III
On July 6, 2009, 25-year-old Jane Doe III was in Oakland hanging out with her friends. Later that evening, while she was alone and waiting for a ride on a side street near International Boulevard, she saw a small, light-colored, two-door car, possibly a Honda or Toyota pull up nearby. The driver and sole occupant of the car, later identified as appellant, asked if Jane Doe III “ha[d] anything.” Jane Doe III believed he was asking for drugs. Jane Doe III was carrying about $10 worth of crack cocaine. As she and appellant were
Once Jane Doe III was inside the car, she agreed to sell appellant crack cocaine, and she asked to see the money. Appellant reached towards the driver‘s side door and drew a blаck gun, which he pointed at Jane Doe III‘s stomach. Scared, Jane Doe III threw the drugs on his lap. Appellant told her to look forward and he began driving. During the drive, he told Jane Doe III he was a police officer. At one point, he spoke into a walkie-talkie. He showed Jane Doe III a silver badge. Jane Doe III noticed a FasTrak device in the middle of the front windshield.
Appellant parked the car in an industrial area near High Street. He told Jane Doe III to pull her pants down, and he threatened to kill her if she did not cooperate. Jane Doe III complied, and appellant pulled his own pants down. Appellant was wearing a condom and demanded that she perform oral sex on him. Jane Doe III was crying so hard that she was unable to do as she was commanded. Appellant then told Jane Doe III to get on her hands and knees; he got behind her in the passenger seat, and began having vaginal intercourse with her. When appellant was finished, he told Jane Doe III to put her clothes on and he threw the condom out the door.
Appellant drove Jane Doe III a short distance, then made a U-turn and stopped the car. He told her to get out and run the opposite direction that the car was facing. He had taken Jane Doe III‘s phone from her at some point, and returned it after wiping off his fingerprints with his shirt. Jane Doe III ran to a nearby McDonalds, where someone let her use their phone to call her friend, as Jane Doe III‘s cell phone battery had gone dead. Jane Doe III did not сall 911 because she believed appellant was a police officer. Jane Doe III‘s friend picked her up and drove her to a family member‘s house in Richmond. Later that night, she went to the hospital.
Martin Moran, a physician‘s assistant at Highland Hospital, testified as an expert in sexual assault examinations. He performed a sexual assault exam on Jane Doe III on July 7, around 3:45 a.m. Jane Doe III complained of vaginal pain, and Moran noticed an injury to her posterior fourchette, which he said was the most commonly injured area in sexual assault cases.
Oakland Police Department Officer Dometrius Fowler took Jane Doe III‘s statement at the hospital. Afterwards, he used Jane Doe III‘s description to find a location that he believed was the scene of her rape. However, he was unable to locate any evidence at that location.
D. Rape of Jane Doe IV2
On September 11, 2009, 15-year-old Jane Doe IV was working as a prostitute near 19th Avenue and International Boulevard, when she saw a “tannish” Toyota Corolla pull up. Jane Doe IV had met the driver, later identified as appellant, a year earlier, when he claimed to be an undercover officer and did not pay her. Jane Doe IV and appellant agreed on a deal for “[a] blow job and sex.”
Jane Doe IV got into the car and appellant drove to an alley off of “East 23rd.” There, he pulled out a gun, pointed it at Jane Doe IV‘s chest, and told her to pull her pants down. He told her that as long as she did what he wanted, he would not hurt her. Jane Doe IV put a condom on appellant and performed oral sex while crying. Eventually, appellant climbed on top of Jane Doe IV and began having vaginal intercourse with her. When he was finished, he sat back in the driver‘s seat and took the condom off. Appellant said he was an undercover police officer. He told Jane Doe IV that he would drive her back, but if he caught her again, he would take her to jail. Jane Doe IV got out and went home. About a month later, she reported the rape and gave a statement to the police.
Some time after making her report, Jane Doe IV saw appellant again. He was driving a blue Chevrolet pickup truck near 17th Avenue and International Boulevard. Jane Doe IV called the officer who had taken her statement and told him about the sighting. Later, she identified appellant out of a photo lineup as “the guy that raped me, and pretended to be a police officer.”
E. Rape of Jane Doe V
In the early morning of September 12, 2009, 22-year-old Jane Doe V was working as a prostitute near 21st Avenue and International Boulevard, when she saw a small, light-colored car, possibly a Honda, approach. Jane Doe V recognized the driver, later identified as appellant, as a man she had unsuccessfully negotiated with on a prior occasion. Jane Doe V got in the car and agreed to perform sexual acts for money. They drove off to find a suitable location, eventually stopping near a garage.
Appellant then reached over and locked Jane Doe V‘s door. He pulled a gun from the driver‘s side door and pointed it at Jane Doe V‘s head. Jane
Jane Doe V called 911 and reported her rape. She then stayed at the scene until police arrived, and she directed them to the condom on the ground. Jane Doe V then went to Highland Hospital, where she submitted to a sexual assault exam. Saloni Patel, a physician assistant at Highland Hospital, testified as an expert in sexual assault exams. Although she did not observe any injuries, she explained that this was “very common.”
When shown a photo lineup, Jane Doe V immediately pointed to appellant‘s picture and identified him as her rapist.
F. Police Investigation
Around 8:50 p.m. on October 26, 2009, Emeryville Police Department Officer Edward Mayorga responded to 6701 Shellmound Street in Emeryville. There, he saw another officer‘s car parked behind а blue Chevy pickup truck. Officer Mayorga ordered the driver out of the car and placed him in his patrol car. The driver was identified as appellant. Underneath the driver‘s seat of the truck, Officer Mayorga saw what looked like a semi-automatic, black and silver pistol. The weapon was actually a BB gun.
Oakland Police Department Officer Carlos Gonzalez had been investigating Jane Doe III‘s, Jane Doe IV‘s, and Jane Doe V‘s cases, and assisting with the other similar cases. When he learned of the circumstances of appellant‘s arrest, he instructed other officers to distribute a new photo lineup, including appellant‘s picture, to the victims.
On October 27, Officer Gonzalez supervised the execution of a search warrant at appellant‘s home. There, officers found a small Toyota Corolla parked in front of the home, with a FasTrak device on the front windshield. Inside the car was a Mercedes Benz vehicle manual and a service receipt listing a Mercedes license plate.
On October 29, Officer Gonzalez went to the Santa Rita Jail and obtained an oral swab from appellant.
Chani Sentiwany, a criminalist with the Oakland Police Department, testified as an expert “in the examination of biological evidence, DNA typing
Mona Madaio was an investigator with the Department of Motor Vehicles (DMV). Oakland Police Department Officer Bryant Ocampo had asked the DMV to investigate the Mercedes information recovered from appellant‘s Corolla. Madaio testified that appellant had legal possession of a 2003 Mercedes sport coupe from June 20, 2007, until June 1, 2009.
II. DISCUSSION
A. Exclusion of Evidence of Other Cases
Appellant contends the trial court erred in excluding evidence of similar open cases and by limiting cross-examination on this topic. He further claims the trial court erred in denying his new trial motion based on this alleged error and that his due process rights were violated.
1. Background
Prior to trial, the prosecution moved to exclude evidence of third party culpability absent an offer of proof. The trial court granted the motion. During trial, the prosecution elicited information from police witnesses about other suspects who were ultimately excluded after further investigation. The defense was permitted to cross-examine these witnesses regarding those eliminated suspects. The defense, however, was not permitted to cross-examine the witnesses about the possibility of other “police poser rape cases.”
During the prosecution‘s case, the defense requested permission to cross-examine Officer Gonzalez “with reference to some other police reports . . . in an effort to establish third party culpability.” Defense counsel had the reports, but had not yet reviewed them to determine if she would raise the issue on cross-examination. Without ruling on the issue, the court noted that “there must be some direct or circumstantial evidence connecting a third person to the actual perpetration of the crime . . . . [Case law] suggests that that must
After the close of evidence, the defense placed on the record that the court had ruled in chambers that the defense could not cross-examine police witnesses about two particular police reports. The court responded with its reasoning for the ruling, explaining that “since there was no evidence that there was a known suspect [in those cases], . . . cross-examination on the matter would not be relevant.”
The defense reasserted the issue in its motion for a new trial. In its motion, the defense identified four police reports describing rapes under circumstances similar to those of the victims in appellant‘s case. Each case involved an African-American female prostitute picked up on or near International Boulevard, threatеned with a firearm, and raped. In some cases, the assailant would claim involvement with law enforcement, force the victim to orally copulate him, or take the victim to an area near High Street and Tidewater Street. In each case, the description of the assailant and his vehicle was similar to that of appellant and one of his vehicles. In each case, the victim did not identify appellant as the attacker. In one case, recovered DNA evidence did not match appellant.
The trial court denied the new trial motion, explaining that the challenged cross-examination would have been hearsay to the extent the defense would have tried to introduce evidence that those victims had not identified appellant, or that DNA evidence cleared him in one of the cases. The court also noted “there is no link to a known suspect.” Finally, the trial court explained that allowing the cross-examination may have opened the door to the prosecution presenting additional evidence on those cases, taking “substantial additional time.”
2. Analysis
Appellant argues that the trial court erred by prohibiting cross-examination about the possibility of other “police poser rape cases.” We disagree.
” ‘[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . must link the third person either directly or circumstantially to the actual perpetration of the crime.’ ” (People v. Elliott (2012) 53 Cal.4th 535, 580 [137 Cal.Rptr.3d 59, 269 P.3d 494].) ‘For evidence of an uncharged offense to be admissible to establish the third party‘s identity as the perpetrator of the charged crimes, ” ‘[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a
The proffered evidence that, after appellant was arrested, prostitutes continued to be raped at gunpoint, by individuals claiming to be law enforcement officers, does not establish a link between a third person and the crimes charged against appellant. “None of these shared characteristics is unusual or distinctive . . . . [P]rostitutes are vulnerable and tend to be victimized. (See, e.g., People v. Jones (2013) 57 Cal.4th 899 [161 Cal.Rptr.3d 295, 306 P.3d 1136] [two and perhaps three homicide victims were prostitutes, and the three had been left in dumpsters]; People v. Solomon (2010) 49 Cal.4th 792, 798 [112 Cal.Rptr.3d 244, 234 P.3d 501] [six drug-abusing prostitutes murdered]; People v. Doolin (2009) 45 Cal.4th 390, 400 [87 Cal.Rptr.3d 209, 198 P.3d 11] [defendant murdered two prostitutes and attempted to murder four more prostitutes]; People v. Rogers (2006) 39 Cal.4th 826, 835 [48 Cal.Rptr.3d 1, 141 P.3d 135] [two prostitutes murdered]; see also People v. Jennings [(1991)] 53 Cal.3d [334,] 363 [279 Cal.Rptr. 780, 807 P.2d 1009] [noting that prostitutes ‘could be seen as especially vulnerable‘].)” (People v. Suff, supra, 58 Cal.4th at pp. 1063–1064.) Moreover, the use of guns by individuals posing as law enforcement officers is similarly unremarkable. Indeed, defense counsel argued below that the circumstances of the charged offenses and the uncharged offenses were “not unique in the least,” and were “so common that the Oakland Police Department ha[d] a 9[-]page document entitled ‘Rapists Posing as Law Enforcement.’ ”3
We next consider whether the evidence was admissible to prove the bare fact that the rapes of prostitutes did not end with appellant‘s arrest. Appellant asserts that the prosecutor, by arguing that “there were no similar attacks after appellant‘s arrest” and by suggesting the charged attacks were “distinctive in MO” erroneously caused the jury to believe he was guilty despite the fact that “there were in fact dozens of similar open cases.” Therefore, he contends, the evidence of post-arrest rapes was relevant to rebut the prosecutor‘s argument that appellant was guilty based on the “doctrine of chances” and pattern of the rapes.
Similarly, the trial court did not abuse its discretion in denying appellant‘s new trial motion based on the exclusion of third party culpability evidence. (See People v. Homick (2012) 55 Cal.4th 816, 894 [150 Cal.Rptr.3d 1, 289 P.3d 791].)
Finally, inasmuch as the trial court‘s ruling did not constitute an abuse of discretion under
B. Admission of Preliminary Hearing Testimony of Jane Doe IV
Appellant contends that admission of Jane Doe IV‘s preliminary hearing testimony deprived him of his constitutional rights to confrontation and duе process. According to appellant, the trial court erred in admitting this testimony because (1) the prosecution failed to exercise due diligence in securing this witness‘s attendance at trial, and (2) appellant lacked an adequate opportunity for cross-examination at the preliminary hearing.
1. Background
Jane Doe IV was not available at the time of trial, although she had testified at appellant‘s preliminary hearing on February 23, 2010. The trial court conducted a hearing on the prosecution‘s efforts to procure Jane Doe IV‘s appearance at trial. The prosecution presented the testimony of two witnesses detailing the efforts to locate Jane Doe IV.
Inspector Stephanie England testified that prior to the preliminary hearing, she had spoken with Jane Doe IV by calling the phone number provided on the police report. In December 2009, she met with Jane Doe IV in Oakland at Jane Doe IV‘s boyfriend‘s sister‘s house. England had the phone numbers for Jane Doe IV, Jane Doe IV‘s boyfriend, and Jane Doe IV‘s grandmother‘s boyfriend. Jane Doe IV testified at appellant‘s preliminary hearing without issue.
However, after the preliminary hearing, Jane Doe IV‘s phone number was no longer in service. Jane Doe IV, a juvenile at the time, had no reliable, known address. England ran Jane Doe IV‘s criminal history, checked for a California driver‘s license or identification card, and called all of the phone numbers she had, all to no avail. England was unable to find addresses for Jane Doe IV‘s parents, grandparеnts, or boyfriend. In August 2011, she handed the case off to another investigator, Inspector Lux, who had requested police reports from the El Cerrito Police Department related to Jane Doe IV‘s grandmother and the grandmother‘s boyfriend.
In November 2011, Inspector Harry Hu took over for Inspector Lux. Hu left a message at the phone number given for Jane Doe IV‘s grandmother‘s boyfriend in the El Cerrito police reports, but received no response. Hu checked local, state, and federal law enforcement databases for Jane Doe IV, but found nothing. He also looked for information on Jane Doe IV‘s family in those databases, but again found nothing. He tried calling all of the phone numbers related to Jane Doe IV, but they were either disconnected or not receiving calls. He sent messages to Jane Doe IV on the Facebook and Myspace Web sites, but did not receive an answer. On Jane Doe IV‘s Facebook account, she listed “Ray [H.]” as her husband. Hu tracked down an address for two men named “Ray [H.]” (father and son) in Richmond. He went there and spoke to them, but they did not know Jane Doe IV. He checked whether Jane Doe IV had received a driver‘s license or identification card, owned a car, or had an adult criminal history, all without result. He ran her name through a “people-search database” without result. When he ran her family‘s names through the database, he obtained phone numbers, but they were either disconnected or did not answer. Hu also checked whether Jane Doe IV was in a local hospitаl, but found nothing. He had run checks on Jane
Hu acknowledged that he had an address for Jane Doe IV‘s grandmother but had not gone there. He also had Jane Doe IV‘s mother‘s last known address in San Francisco, but had not gone there either.
Defense counsel argued that the prosecution had not shown due diligence in attempting to bring Jane Doe IV to court. Defense counsel also argued that counsel did not have the same opportunity or motive to cross-examine Jane Doe IV at the preliminary hearing, since the purpose of the preliminary hearing was simply to show probable cause, and the defense attorney at that hearing had not previously met with appellant. The trial court disagreed and found that the prosecution had exercised due diligence and that the defense had a sufficiently similar motive and opportunity to cross-examine Jane Doe IV at the preliminary hearing.
2. Applicable Law
Under the state and federal Constitutions, a criminal defendant has the right to confront the prosecution‘s witnesses. (
On appeal, “[w]e review the trial court‘s resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence [citation].” (Herrera, supra, 49 Cal.4th at p. 623.)
3. Unavailability
“A witness who is absent from a trial is not ‘unavailable’ in the constitutional sense unless the prosecution has made a ‘good faith effort’ to obtain the witness‘s presence at the trial. [Citation.] The United States
This good faith obligation is reflected in the language of
“Considerations relevant to the due diligence inquiry ‘include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness‘s possible location were competently explored.’ [Citation.]” (Herrera, supra, 49 Cal.4th at p. 622; People v. Valencia (2008) 43 Cal.4th 268, 292 [74 Cal.Rptr.3d 605, 180 P.3d 351].) As long as ” ‘substantial good faith’ ” efforts are undertaken to locate a witness, the fact that ” ‘additional efforts might have been made or other lines of inquiry pursued . . .’ ” does not indicate lack of diligence because ” ‘[t]he law requires only reasonable efforts, not prescient perfection.’ [Citation.]” (People v. Diaz (2002) 95 Cal.App.4th 695, 706 [115 Cal.Rptr.2d 799].)
Appellant contends the evidence summarized above does not support the trial court‘s finding that Jane Doe IV was unavailable because the prosecution failed to establish that it exercised due diligence to secure Jane Doe IV‘s attendance at trial. We disagree.
“[D]iligence has been found when the prosecution‘s efforts are timely, reasonably extensive and carried out over a reasonable period. [Citations.]” (People v. Bunyard (2009) 45 Cal.4th 836, 856 [89 Cal.Rptr.3d 264, 200 P.3d 879].) In contrast, diligence has found to be lacking where the prosecution‘s efforts were “perfunctory or obviously negligent. [Citations.]” (Id. at pp. 855-856.)
Appellant acknowledges that the efforts of the investigators in “terms of contact information checks, telephone numbers, and . . . email” appeared to be “substantial.” Nevertheless, he faults the investigators’ work in tracking down Jane Doe IV because “there was no subpoena” issued when “it became clear [that Jane Doe IV] and her contacts were not being responsive.” Under these circumstances, appellant argues that there should have been “physical checks” of the known “prominent physical addresses (a grandmother, the grandmother‘s boyfriend, and [Jane Doe IV‘s] mother) . . . .”
Preliminarily, appellant fails to explain how a subpoena would have any greater efficacy in keeping Jane Doe IV on the prosecutor‘s radar screen. As discussed, Jane Doe IV was a juvenile prostitute with no fixed home, who appeared without incident at the preliminary hearing. “The prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventative measures’ to stop the witness from disappearing.” (People v. Wilson (2005) 36 Cal.4th 309, 342.)
Prior to trial, the investigators explored various avenues in attempting to locate her: making numerous calls to Jane Doe IV and her family; checking multiple statewide databases for Jane Doe IV and her family; attempting to contact Jane Doe IV on social media Web sites; following up on a possible spouse; and even checking local hospitals. Exercising our independent review, we conclude the prosecution‘s efforts to produce Jane Doe IV for trial were reasonable under the circumstances. (See People v. Wilson, supra, 36 Cal.4th 309, 342.) That the investigators failed to conduct “physical checks” at the last known addresses for the grandmother and her boyfriend, and for Jane Doe IV‘s mother does not transform this otherwise exhaustive effort into an unreasonable one, lacking the requisite diligence. The situation here is the same as repeatedly confronted by our Supreme Court: “[D]efendant has suggested other things the prosecution might have done. But these suggestions do ‘not change our conclusion that the prosecution exercised reasonable diligence. “That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.” ’ ” (People v. Valencia, supra, 43 Cal.4th at p. 293, quoting People v. Wilson, supra, 36 Cal.4th 309, 342.)
Accordingly, we conclude that the prosecution satisfied its good faith obligation and exercised reasonable diligence to secure Jane Doe IV‘s attendance at trial.
4. Opportunity for Cross-examination at Preliminary Hearing
Appellant next argues that he did not have an adequate opportunity to cross-examine Jane Doe IV at the preliminary hearing because cross-examination is limited at preliminary hearings and because defense counsel did not have access to Jane Doe IV‘s written statement to the police.
Defense counsel was perfectly free to, and did in fact, question Jane Doe IV about her written statement to the police. That the written statement was not available at the timе of the preliminary hearing did not prevent defense counsel from otherwise confronting Jane Doe IV about her accusations against appellant. “[A] prior opportunity to cross-examine a witness who has become unavailable is considered an adequate substitute for present cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766.) Thus, ” ‘[a]s long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under
Both the United States Supreme Court and the California Supreme Court “have concluded that ‘when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony. [Citation.]’ ” (People v. Wilson, supra, 36 Cal.4th at p. 343.) People v. Gonzales (2012) 54 Cal.4th 1234, cited by the Attorney General, provides a particularly apt discussion in this regard. In Gonzales, defense counsel did not have a child witness‘s therapy records at the preliminary hearing. (Id. at p. 1261.) There, the record showed that before the hearing, the witness had been lying and possibly depressed or suffering from posttraumatic stress disorder. (Id. at p. 1262.) Nevertheless, our Supreme Court concluded that defense counsel had a meaningful opportunity to cross-examine the witness, and it upheld the trial court‘s decision to admit the witness‘s former testimony at trial. (Id. at pp. 1264-1265.) Similarly here, appellant had a meaningful opportunity to cross-examine Jane Doe IV despite not having seen her written statement to the police. Indeed, although appellant complains that he did not have Jane Doe IV‘s written statement at the preliminary hearing, he has not identified any meaningful inconsistencies or material differences between her statement and her testimony to substantiate his claim of deprivation.
5. Constitutional Claims
Finally, appellant argues that his claims that he was deprived of his federal constitutional rights to a fair trial and to confront witnesses are cognizable on appeal, or alternatively that he received ineffective assistance of counsel if his claims were forfeited by failing to raise them below. There is no need to extend the length of this opinion by detailing the obvious. Inasmuch as we have found no error in the admission of Jane Doe IV‘s preliminary hearing testimony, there is nothing to support appellant‘s constitutional claims (state or federal) and his related ineffective assistance of counsel claim.
C. Presence of Support Person
In certain criminal cases, a prosecuting witness is entitled to the supporting attendance of two persons at trial, one of whom may accompany the witness to the witness stand. (
Prior to trial, the prosecutor, citing
In People v. Lord (1994) 30 Cal.App.4th 1718, 1722, our colleagues in Division Five of this court held that the defendant waived the claim that he was denied a constitutional right to an evidentiary hearing on the necessity of a support person by failing to request a hearing or otherwise objecting to the presence of a support person. (Id. at p. 1722.) Lord stated that
Appellant asserts that we should reject the holding in Lord or deem it inapplicable here because Adams and a case Adams relies upon, Maryland v. Craig (1990) 497 U.S. 836, suggest the trial court has a sua sponte duty to ensure that the requisite necessity exists before presence of the support person is permitted. However, in Adams, an objection to the procedure was made (Adams, supra, 19 Cal.App.4th at p. 434), and, so, the case is not authority for a court‘s duty to conduct a hearing in the absence of an objection. Appellant then cites People v. Keelin (1955) 136 Cal.App.2d 860, 870-871, for the proposition that courts have a sua sponte duty to ensure that minimum foundational evidentiary showings are met. In Keelin, the appellate court concluded that the trial court erroneously admitted certain statements under the spontaneous declaration exception to the hearsay rule without sufficiently assessing whether the evidentiary foundation for those statements qualified them as spontaneous declarations. (Id. at pp. 868-872Keelin court concluded that the defendant‘s failure to tender the same objection regarding other witnesses did not constitute a waiver. (Id. at p. 870.) Accordingly, Keelin is inapposite. The issue here does not concern the court‘s role in admitting evidence, and unlike Keelin there was no objection at any time by appellant.
Nevertheless, appellant argues, citing People v. Haston (1968) 69 Cal.2d 233, 256, footnote 28, that we should excuse his failure to object because the statute is apparently mandatory, discouraging an objection, yet the case law regarding whether a case-specific showing of necessity is required is unsettled. While it is not clear from Adams and Lord precisely what showing is required in all cases, since Lord was decided in 1994, there is no dispute either that the failure to object to the absence of a showing of necessity constitutes a waiver, or that the defendant may require some type of antecedent showing before a support person is аllowed to accompany a witness. Moreover, while
Finally, appellant asks us to exercise our discretion to review the issue despite his failure to object, or alternatively to find he was denied effective assistance of counsel. Even assuming for the sake of argument that appellant has preserved his claim of error, it fails on the merits. The components of the confrontation clause are “(1) the face-to-face confrontation, (2) the oath, (3) the cross-examination, and (4) the jury‘s observation of the witness‘s demeanor.” (People v. Johns (1997) 56 Cal.App.4th 550, 554, citing Maryland v. Craig, supra, 497 U.S. at p. 846.) In Maryland v. Craig, a necessity hearing was required where the minor victim testified via a one-way closed circuit television. (Id. at pp. 855-857.) Adams required a necessity hearing where the support person was also a witness at trial and there was an allegation that the support person, who was also the victim‘s father, had abused the victim, which could have motivated her to report the offenses as she did. (Adams, supra, 19 Cal.App.4th at p. 434.) Thus, the court found that a hearing was necessary because the presence of the support person potentially affected the victim‘s trial performance and demeanor. (Id. at p. 438.)
Here, the dangers addressed in Adams and Maryland v. Craig are not present. Jane Doe III testified in person, permitting face-to-face confrontation, and her support person was not a testifying witness. In addition, the record does not suggest that the presence of the support person during her testimony had any impact on the jury‘s perception of Jane Doe III‘s demeanor, or in any way influenced Jane Doe III‘s testimony.5 (See People v. Johns, supra, 56 Cal.App.4th at pp. 555-556.) Accordingly, we conclude that no constitutional error has been demonstrated.
D. Instructions Regarding Appellant‘s Statements
The trial court did not instruct the jury with CALCRIM No. 358 (Evidence of Defendant‘s Statements) or CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime), nor did appellant request these instructions. Appellant argues the trial court erred because it had a sua sponte duty to give these instructions. The Attorney General concedes the trial court had a sua sponte duty to instruct with both instructions, but claims the error was harmless. We agree.
“Whenever an accused‘s extrajudicial statements form part of the prosecution‘s evidence, the cases have additionally required the trial court to instruct sua sponte that a finding of guilt cannot be predicated on the statements alone. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1170.) “Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.]” (Id. at p. 1181.)
Here, it is not reasonably probable the jury would have reached a different result since there was more than sufficient independent evidence of the corpus delicti of the crimes. Each of the five victims testified against appellant, giving detailed accounts how the rapes occurred. The testimony of the victims was corroborated in part by the various sexual assault examiners who testified, as well by the DNA evidence, plus by the evidence from the criminal investigation, which connected appellant to the vehicles and weapon used in the crimes. This independent evidence is more than adequate to establish, as a matter of law, that the failure to give the instruction was harmless under state and federal standards. (People v. Alvarez, supra, 27 Cal.4th at p. 1181; People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
CALCRIM No. 358, on the other hand, would have provided some benefit to appellant because it specifically informs the jury that it must consider “with caution” evidence of a defendant‘s oral statement “unless the statement was written or otherwise recorded.” Appellant argues that prejudice was inherent in the failure to give this instruction because the statements attributed to him by the victims “went directly to identification based on supposedly similar MOs, as well as lack of consent.” Appellant argues that
We are not convinced a different result would have been reached had the jury been properly instructed. The issue of witness believability was squarely before the jury. The trial court instructed the jury with CALCRIM No. 226, which sets forth the factors in assessing the credibility and believability of witnesses. Considering the detailed account of the five victims and the ample, independent corroborating evidence of appellant‘s guilt, it is not reasonably probable that appellant would have obtained a better result if CALCRIM No. 358 had been given. (People v. Watson, supra, 46 Cal.2d at p. 836.) Moreover, on this record, any error in failing to give this instruction was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
Finally, we reject appellant‘s claim that the aforementioned harmless errors violated his rights to due process and a fair trial. As our Supreme Court explained in People v. Dickey (2005) 35 Cal.4th 884, 905, ” ‘[m]ere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution,’ ” nor does ” ‘[f]ailure to give the cautionary instruction . . . make the trial fundamentally unfair.’ ”
E. Defense of Consent Instruction
Appellant next argues that the trial court had a sua sponte duty to instruct the jury, pursuant to People v. Mayberry (1975) 15 Cal.3d 143 (Mayberry), that it should find appellant not guilty if he held a reasonable and good faith but mistaken belief that his victims consented to engage in sexual intercourse. We disagree.
” ‘In the absence of a request for a particular instruction, a trial court‘s obligation to instruct on a particular defense arises “only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant‘s theory of the case.” ’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148 [defendant not entitled to Mayberry instruction].) Here, appellant satisfies neither prong of this test. The defense did not claim that appellant reasonably believed the victims had consented, and did not request a Mayberry instruction or object to its omission. Rather, the defense focused on identification issues. Appellant claims on appeal that defense counsel also raised “reasonable doubt issues regarding [the] consent as to some victims.” Appellant
The Mayberry defense has both a subjective and an objective component. (People v. Williams, supra, 4 Cal.4th at p. 360Id. at pp. 360-361.) In order to satisfy the objective component, the appellant must show that his mistake was reasonable under the circumstances. (Id. at p. 361.) “[R]egardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction.” (Ibid.)
In arguing that a Mayberry instruction was required here, appellant relies on the following pаssage from Williams: “We note for the guidance of the lower courts that there may be cases, as in Mayberry, in which there is evidence of equivocal conduct that could be reasonably and in good faith relied on to form a mistaken belief of consent, but also evidence that this
Appellant apparently contends that, even though his victims testified that he used “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” (
Jane Doe III testified that after she agreed to sell crack to appellant, he pulled a gun on her and threatened to kill her. She cried during her rape. At one point, Jane Doe III was crying so hard that she was unable to perform oral sex on appellant.
Jane Doe I testified that appellant grabbed her on the street, put a gun in her back, and pulled her into his car. Appellant told her not to say anything, struck her in he face, and pointed a gun at her. He held the gun to her head while she performed oral sex. Jane Doe V initially agreed to have sex with appellant in exchange for money, but then appellant pointed a gun at her head. Jane Doe V told him not to kill her and cried during her assault. Similarly, Jane Doe IV initially agreed to have sex with appellant. Jane Doe IV told appellant not to kill her, and she cried during her assault. Jane Doe II also reached an agreement with appellant, before he pointed a gun at her head. She told appellant not to hurt her and was crying.
Here, no matter what the jury could have believed about appellant‘s subjective understanding when Jane Doe V, Jane Doe IV, and Jane Doe II
F. Reasonable Doubt Instructions
Pursuant to CALCRIM No. 220, the trial court instructed the jury, in pertinent part: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. [\P] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence prove[d] the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (Italics added.)
Pursuant to CALCRIM No. 222, the jury was further told: “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.” (Italics added.)
Appellant now complains these instructions denied him due process, a fair trial, and his right to a jury determination on all issues beyond a reasonable doubt, because (1) jurors were told, in CALCRIM No. 222 and other instructions, that they had to decide the facts based solely on the evidence presented in court, whereas reasonable doubt may be based on the absence of evidence, and (2) the ” ‘abiding conviction’ ” language is “archaic and incomplete” and conveys “an insufficient standard of proof akin to clear and convincing evidence and going only to jurors’ duration of belief in guilt, not their degree of certainty.” His arguments lack merit. Numerous appellate courts have rejected the argument that CALCRIM Nos. 220 and 222 eliminate the doctrine of reasonable doubt due to lack of evidence. (See People v.
Likewise, the United States Supreme Court and the California Supreme Court have rejected challenges to the constitutionality of CALJIC No. 2.90, which is worded similarly to CALCRIM No. 220. (See, e.g., Victor v. Nebraska (1994) 511 U.S. 1, 16-17; People v. Farley (2009) 46 Cal.4th 1053, 1122.) In Victor v. Nebraska, supra, 511 U.S. at pages 14-15, the United States Supreme Court stated: “An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government‘s burden of proof. [Citations.]” (Italics added.) Courts universally have rejected challenges to CALCRIM No. 220‘s use of the phrase “abiding conviction,” including that it conflates the separate concepts of duration and weight. (See, e.g., People v. Zepeda (2008) 167 Cal.App.4th 25, 28-32; People v. Garelick, supra, 161 Cal.App.4th at p. 1119; People v. Stone (2008) 160 Cal.App.4th 323, 332-334; People v. Campos, supra, 156 Cal.App.4th at pp. 1238-1239; cf. People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 [suggesting modification of CALJIC No. 2.90 to refer to ” ‘abiding conviction’ ” without references to ” ‘moral evidence’ ” and ” ‘moral certainty’ “].)
Appellant says he disagrees with these opinions, but does not cite a single case supporting his view. We see no reason to revisit the issue.
Accordingly, we conclude the trial court properly instructed the jury regarding reasonable doubt.
G. Sentencing Issues
1. Multiple Life Sentences
The trial court sentenced appellant to 13 consecutive terms of 15 years to life pursuant to
Appellant contends that he should have been sentenced “at the most” to only five 15-year-to-life terms, “one for each victim.” According to appellant, aрplying the multiple victim circumstance set forth in
a. Section 667.61
The Legislature enacted
Appellant argues that
Valdez, rejected the argument as a matter of statutory interpretation of
In this case, appellant was convicted of committing multiple offenses against five different persons, with a multiple victim circumstance finding as to each offense. To that extent, the facts in this case are the same as those in Valdez. Valdez upheld One Strike law sentences imposed on each of the offenses in that case. We believe the same result obtains here. The only real difference between the facts in Valdez and those in this case is that every offense the defendant committed in Valdez apparently was committed on a separate occasion (Valdez, supra, 193 Cal.App.4th at pp. 1519-1520) while, in the present case, appellant committed all his offenses on the same occasion as against each victim. As previously noted, appellant committed all of his offenses against (1) Jane Doe I on April 17, 2009; (2) Jane Doe II on April 19, 2009; (3) Jane Doe III on September 11, 2009; and (4) Jane Doe IV on September 12, 2009. Nevertheless, the claims of the defendant in Valdez and appellant are the same, i.e., once a One Strike law sentence is imposed for an
However, as explained in People v. Rodriguez (2012) 207 Cal.App.4th 204, 213 (Rodriguez), the plain language of the One Strike law “establishes that such a [consecutive] sentence must be imposed on each offense.” (Italics added.) In reaching this conclusion, the court explained as follows: “Before September 2006, the One Strike law contained former subdivision (g), which stated that a One Strike sentence ‘shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.’ [Citation.] If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. ‘Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including
Rodriguez further explained that “[a]s the Legislature eliminated subdivision (g), which the courts had interpreted to limit the number of One Strike sentences properly imposed on multiple offenses against a single victim on a single occasion, we infer that the Legislature intended to abrogate this restriction.” (Rodriguez, supra, 207 Cal.App.4th at pp. 213-214.) Thus, the court concluded that “the applicable version of the One Strike law mandated the imposition of a 25-year-to-life sentence on each of appellant‘s eligible offenses . . . .” (Id. at p. 214, italics added.)
Here, appellant committed 13 offenses against five victims. The plain language of the One Strike law simply does not support a limitation of single
b. Section 654
Alternatively, appellant argues the imposition of multiple life terms violates the proscription against multiple punishment contained in
Preliminarily, the Attorney General asserts
Here, the trial court found appellant committed multiple criminal acts on separate occasions. He is not being subjected to multiple punishments for the same act, nor is he being punished for the same act under different sections of the Penal Code. (See People v. Massie (1967) 66 Cal.2d 899, 908 [“A defendant may not bootstrap himself into
c. Constitutional Claims
Appellant contends that the trial court‘s “failure to follow state law—or at least exercise discretion . . . deprived appellant of his liberty interest in the correct application of state law and, hence, of due process of law.” This contention is without merit. As discussed, the trial court did not err in applying the One Strike law and imposing 13 indeterminate sentences. Moreover, we are not convinced the trial court abused its discretion in imposing the 13 consecutive terms. Here, the trial court implicitly concluded the aggravating factors cited in the probation report outweighed the sole mitigating factor, i.e., appellant‘s lack of a prior criminal record. In short, appellant fails to establish the trial court‘s determination in this regard results in an arbitrary or capricious sentence. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.)
Finally, appellant makes a passing claim that application of the One Strike law “implicates constitutional principles of double jeopardy.” This contention is without merit. He acknowledges that in the ” ‘multi-punishment’ ” context, double jeopardy precludes a court from imposing cumulative sentences for the same conduct only when the Legislature fails to specifically authorize such punishment. (People v. DeSimone, supra, 62 Cal.App.4th at p. 700.) He, however, claims that the Legislature has not specifically authorized the punishment imposed in his case. He is mistaken. We will not rehash our analysis of this issue. Simply stated, the Legislature has authorized the punishment imposed in appellant‘s case, so double jeopardy concerns are not implicated. (Ibid.)
2. Cruel and Unusual Punishment
Appellant next contends that his sentence of 195 years to life constitutes cruel and unusual punishment. We disagree.
Preliminarily, the Attorney General argues that appellant has forfeited this issue by not objecting below on the grounds he raises on appeal. Electing to avoid a subsequent ineffective assistance of counsel claim, we exercise our discretion (see In re Sheena K. (2007) 40 Cal.4th 875, 887) and review this otherwise forfeited claim, and conclude that it fails on the merits.
Under
Appellant‘s argument focuses on the first prong of the Lynch analysis, i.e., the nature of the offense and the danger he poses to society. He asserts that his punishment is disproportionate given his lack of a criminal record, his education and employment history, together with the fact that “[t]esting placed him in the low risk category for sexual reoffending.” Appellant‘s lack of criminal history aside, his convictions involved numerous sexually violent crimes against five young women. True, the probation department report assessed him as a low risk for recidivism, but his pattern of targeting young, vulnerable women, coupled with his threats and statements that he was affiliated with law enforcement, demonstrated an intent to avoid detection by intimidating his victims. Under the circumstances, his sentence is neither shocking nor inhumane when the nature of the offenses and offender are considered. (See, e.g., People v. Dillon, supra, 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or unusual may be based solely on the nature of the offense and offender]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200.)
3. Conduct Credits
Appellant contends, and the Attorney General concedes, he is entitled to presentence conduct credits. We agree.
Appellant was in county jail for 880 actual days prior to being placed in the custody of the Director of Corrections to begin serving his prison sentence. Consequently, appellant is entitled to a 15 percent credit for his time in presentence custody. (
4. Clerical Error
Appellant argues, and the Attorney General concedes, the sentencing minute order and the abstract of judgment must be amended to eliminate a stated sentence on count 11. We agree.
The trial court declared a mistrial as to count 11 after the jury deadlocked. Accordingly, the abstract of judgment and sentencing minutes must be amended to remove the reference to a conviction for count 11. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order correction of clerical errors].)
H. Cumulative Error
Finally, appellant contends that the cumulative effect of the alleged errors warrant reversal. We reject this contention. The premise behind the cumulative error doctrine is that while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) Here, we have rejected nearly all of appellant‘s claims of error. To the extent any instructional errors were identifiеd above, they “were harmless, whether considered individually or collectively. [Appellant] was entitled to a fair trial but not a perfect one. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) We have found no prejudice when considering his claims of error separately. Viewed cumulatively, our conclusion is the same. Appellant was not deprived of a fair trial.
III. DISPOSITION
The abstract of judgment and sentencing minute order are corrected to reflect (1) 1,012 days of presentence conduct credit pursuant to
Ruvolo, P. J., and Rivera, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied October 16, 2015, S228656.