(San Mateo County Super. Ct. No. SC060467A), Hon. Jonathan E. Karesh.
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted following a jury trial of rape (Pen. Code, § 261, subd. (a)(2)), and sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1)), and sentenced to a term of 10 years in state prison.*fn2 In this appeal he argues that the statute of limitations for the offenses lapsed before the prosecution was commenced. He also challenges evidentiary rulings by the trial court: the admission of evidence of the uncharged sex offense; the exclusion of defense impeachment evidence; and the admission of evidence of his involuntary statement made to the police. Finally, he claims that prosecutorial misconduct was committed. We conclude that the 10-year statute of limitations did not expire, the trial court's evidentiary rulings were not erroneous, and no prejudicial prosecutorial misconduct was committed. We therefore affirm the judgment.
Athena,*fn3 the victim of the charged sex offenses, testified that after drinking "about a six pack" on the evening of September 20, 1996, she had an argument with her husband and left their apartment in Daly City. She was barefoot and carrying a kitten her husband had thrown out of the apartment.
Athena was attempting to make her way to a friend's house when a "Black man" she positively identified at trial as defendant approached her in a car and asked if she needed a ride. Athena "got in the car," with the kitten on her lap in the front passenger seat. She asked defendant to give her a ride to her friend's house in South City, and he agreed. As they drove, the two engaged in conversation about the "issues" Athena had with her "husband and his drinking and his abuse." Defendant seemed friendly to Athena; she had no "suspicions or concerns" about him.
While they were in a residential area in Daly City defendant opened the door and Athena's kitten escaped from the car and ran up a hill. Athena got out of the car and followed the kitten, as did defendant. While they were on the hill pursuing the kitten defendant grabbed Athena on the wrist and attempted to pull her towards him. She screamed loudly and yelled, "What are you doing?" Defendant seemed shocked, and released Athena. He profusely apologized and said "he wouldn't try it again." He also helped Athena find the kitten, after which they returned to the car.
Defendant suggested that they get a beer before he drove Athena to her friend's house, and she reluctantly agreed. They stopped at a 7- Eleven store, where defendant purchased some beer. He then drove back to where they had parked before, and they drank beer, smoked some marijuana defendant provided, and talked. The "vehicle door was opened" and Athena's kitten "got loose again."
Athena left the car to retrieve her kitten and go to the bathroom in the trees. After she finished, defendant "rushed" up to her and pushed her to the ground, on her back. Defendant put his left hand on her mouth and used his right hand to unbutton her pants. Athena testified that she was "crying hysterically" and trying to push defendant away from her, so he pressed his hand down so hard on her mouth that he cut her lip and she could "barely breathe." Defendant pulled off her shorts and underwear. Athena was still "struggling to breathe" as she felt defendant touch her vagina with "his fingers or his penis." She testified that she is not certain if defendant "was able to fully penetrate" her with his penis.
When another car "rolled up" to the wooded area defendant "just got up and left." Athena retrieved her shorts but could not find her underwear. She then jumped over a fence into someone's backyard. An occupant of the house thought she "was a burglar" and called the police.
Daly City Police Officer Joseph Collins responded to the report of a prowler at 110 - 3rd Avenue. He opened the rear sliding door of the residence and discovered Athena standing outside. She had a cut on her lip, and scratches on her knees and feet. She was also was inebriated, "in shock and distraught." Athena told Officer Collins that she "had been raped." Athena gave the officer a brief description of the man who raped her: a "Black male about six foot one," wearing white tennis shoes, driving a dark four-door car. No one was found in the area that matched the description.
Athena was taken to the Daly City police station where she was interviewed by Officer Collins. She was still "very upset," "intoxicated," and crying during the interview. Athena stated that she was at home when her husband threw the kitten out of the house and told her, "You can't come back with the cat." She left the house and was walking on Mission Street when a "car pulled up next to her" and a "Black male" offered her a ride. Defendant drove her to an area in Daly City with a hill and some bleachers, where he grabbed her and pulled her pants down. Athena screamed "and he stopped." They "drove to another location" and "got out of the car again." As they were "walking in a field" defendant "grabbed her, threw her on the ground and pulled her pants off and her panties and raped her."*fn4 Athena admitted she was "playing with fire" when she "got into the car with the guy." She told the officer "it was her fault." She also told Officer Collins that the "Black male" gave her the name "Michael."
At the conclusion of the interview Athena was taken to the hospital for a sexual assault examination. Officer Collins later booked the medical kit given him by the hospital into evidence at the police station. After Athena's physical examination Officer Collins drove her home. Athena told her husband "what happened" to her.
The next day Athena directed Officer Collins to the field next to the house where she was found in the backyard the night before. During a search of the area Athena recovered her underwear. A second interview was also conducted at the police station. Athena gave a statement that was consistent with "what she said" the night before, but added "more details" about the assault.
The results of the sexual assault examination indicated that Athena suffered scratches on her back, upper chest, above the knees, upper left thigh, left buttock, and on both feet. She also had a laceration and swelling on her upper lip. No trauma to the vagina was observed, which is "not unusual" in forcible rape cases. Vaginal swabs were taken from the victim and sent to the crime lab.
The case investigation proceeded but eventually fell into "suspended status" due to lack of identification evidence. Not until October of 2001 were DNA profiles created for Athena and the samples obtained from the vaginal swabs. In March of 2005, a detective with the sexual assault unit of the Daly City Police Department received a communication from the Sacramento County Sheriff's Department that defendant may be a suspect in connection with the rape of Athena. Defendant was interviewed, and a DNA sample was obtained from him. In the interview, defendant denied any knowledge of Athena or contact with her. A subsequent comparison of DNA profiles taken from defendant and the vaginal swap indicated an exact match. Expert opinion testimony was offered that with "the highest degree of medical certainty" defendant "is the source of the semen from the vaginal swab."
The prosecution also offered evidence that defendant committed an uncharged sexual assault. The victim of the uncharged acts was Sarah, who was 15 years old in September of 1998, when she was approached by two African-American men in a light-colored SUV while she was walking on Arden Way in Sacramento. After she repeatedly declined offers of a ride from the men, the passenger left the vehicle and grabbed her by the arm. The man declared that she was "getting in here," and shoved her into the back seat. Sarah testified that the man who forced her into the SUV had "two silver front teeth," and identified him at trial as defendant.*fn5
Sarah was driven to a duplex a few minutes away. She was then taken by defendant into a bedroom in the residence while the driver remained in the vehicle and drove away. Defendant ordered Sarah to lie on the bed while he "started taking his clothes off." Sarah tried to leave, but defendant grabbed her by the arm as she walked down the hallway, then pulled her back into the bedroom and pushed her onto the bed. She was frightened, crying, and "saying `No,' " but did not further attempt to physically resist defendant as he removed her clothes. Defendant put on a condom, forced his fingers in her vagina, then "started penetrating" her with his penis. After 10 or 15 minutes defendant told Sarah to put her "clothes back on." Defendant gave Sarah his pager number, and asked her to meet him later that night at Jack-in- the-Box. He also told her his name was "Andre." The SUV later returned to the duplex and Sarah was taken to an ice cream store near her house; from there she "ran home." Sarah told her roommates she had been raped, and "they called the cops."
When a police officer arrived Sarah gave him a description of the incident and was then taken to a hospital for a sexual assault examination. The report of the examination specified "no physical findings and the exam was consistent with the history" provided by the victim. The parties stipulated that semen found on the underwear worn by Sarah at the time of the assault was "conclusively determined through DNA profile and comparison" to belong to defendant; examination of the vaginal swabs taken during the sexual assault examination "did not reveal the presence of any DNA belonging to the defendant."