(Super. Ct. No. SCN256677) APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge.
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
A jury convicted Stacey Rudell Dejourney of forcible rape (Pen. Code,*fn1 §261, subd. (a)(2); count 1) and kidnapping (§ 207, subd. (a); count 3).*fn2 In a bifurcated proceeding, the trial court found true that Dejourney had previously been convicted of a prior serious felony, which also constituted a strike under the Three Strikes Law and for which he also had served a prior prison term. (§§ 667, subds. (a) & (b)-(i), 667.5, subd. (b), 1170.12.) The court sentenced Dejourney to prison for a total term of 21 years.*fn3
Dejourney appeals, contending the trial court prejudicially abused its discretion and violated his due process rights in admitting evidence of uncharged sexual acts under Evidence Code section 1108 and also in admitting expert testimony regarding a complaining witness's cognitive disability. He also asserts there was no substantial evidence to support his count 3 kidnapping conviction. We affirm as modified.
On August 7, 2008, with the help of strangers, 20-year-old Krystina C. called 911 to report that she had just been raped in a dumpster area near some businesses by Balboa Avenue and Genesee in the Clairemont area of San Diego. When San Diego Police Officer Scott Shively responded to the call and contacted her, he noted that Krystina was extremely upset, had dirt on her knees and the back of her shirt, and wanted to call her husband, whom she said worked at a nearby Albertson's. After taking her initial statement of what had happened that night, Shively transported Krystina to a facility for a SART (sexual assault response team) examination. While waiting for the exam, Krystina became withdrawn, started rocking in her chair, yelled out that she was "an ugly duckling," urinated all over herself as she sat there and was inconsolable.
A SART nurse examined Krystina, finding small abrasions on her knees, dirt and debris on her external genitalia, and a large area of redness and swelling at the sides of the external genitalia, indicative of an abrasion, and determined that the results of her tests were consistent with the sexual assault history Krystina had provided. Shively then talked further with Krystina to piece together a report that he forwarded to a sex crimes detective. Shively, accompanied by Krystina, then went back and examined the dumpster area to gather additional evidence. Shively found the dumpster area very dirty and he estimated it was approximately 270 feet from the Boston Market where Krystina said she had originally asked for help to call 911 before the man allegedly directed her to the dumpster area and raped her. The next day, San Diego Police Detective Gregory Flood interviewed Krystina again.
Essentially, Krystina, who had recently moved to San Diego from Arizona with her husband, told the 911 operator, Shively and Flood that on August 7, 2008, while she was travelling on the trolley to downtown San Diego for a doctor's appointment, she learned that she needed a disabled person's ID card with her bus pass. Consequently, after her doctor's appointment, she walked to the transit store on First and Broadway to obtain the necessary card. However, when she arrived at the transit store it was closed and a man sitting on a nearby bus bench began talking to her. At some point she asked him about hailing a taxi cab and approached an occupied one that had stopped nearby to obtain a card with a telephone number to call them later. She then went across the street to an ATM to withdraw some money to add to the $30 she had because she thought she would need it for a cab.*fn4
After Krystina obtained the money, she began walking toward some stores she wanted to shop in before heading home. She told the 911 operator that the next thing she knew, the man came up behind her "and he just started dragging me around the downtown and he tried taking me in little dark spaces and touching me and kissing on me and stuff and he had some kind of drugs with him that he was smoking; and . . . once people kept seeing us he just took us on the trolley. He took all of my money and he took us on the trolley and then took us on a bus and got off at Balboa at my request [because] my husband works . . . at the Albertson's on Balboa and Mt. Abernathy, and I was gonna try and run to the Albertson's but I couldn't see it anywhere's and he didn't wanna wait on me so ah, he just drug me into this little trash can area and he just took off our clothes and he raped me. And I . . . asked him several times to please stop, I did, and he asked me why and I told him I didn't like it." In response to questions, Krystina said the man who had done this to her was African-American, about 40 years old, had his hair in a ponytail, was carrying a leather jacket with fur, had on dark clothing, and looked homeless.
When Shively arrived to assist Krystina, she filled in other details concerning her ordeal that day, including the fact that she had gone into the Boston Market near Balboa to find out where the Albertson's was located so she could find her husband and also the fact she had asked the cashier there to call 911 before the man entered the restaurant and she left with him. A video tape was obtained from the Boston Market that showed what Krystina had described. As already noted, Krystina also provided more details regarding the incidents to Flood. Additionally the next day, Dale Chock, who had read a news story online about the incident, called the police to report his observations of Krystina and the man he had seen on the bus with her from Fashion Valley to the Clairemont area on the evening of August 7, 2008. Chock told the police that he had been facing the couple who sat together on the bus near him, that the man had glared at him, and that the man had his arm around Krystina, who had no facial expressions while the man rubbed her arm and pulled her close to him.
When Dejourney was arrested on August 9, 2008 in Oceanside, California, the police found that he was wearing the same jacket described by Krystina and viewed in the Boston Market video and that he was in possession of a glass smoking pipe consistent with a device used to smoke crack cocaine and with the pipe described by Krystina as having been used by the man who had raped her. When Chock was asked to view a live lineup, he selected Dejourney as the man he had seen on the bus with Krystina. Krystina was also separately shown the lineup.
Dejourney was subsequently charged with various crimes, including rape and kidnapping, stemming from the events involving Krystina on August 7, 2008. After various pretrial motions, he proceeded to jury trial on the rape, kidnapping and a rape by foreign object charge.
In addition to the above evidence, which was introduced through the testimony of Shively, Flood, the SART examiner and Chock, and the playing of the 911 taped call by Krystina and the video from Boston Market, Krystina testified, providing further details of her ordeal as well as her disabilities. Krystina explained that because she suffers from cerebral palsy, a physical, developmental, and cognitive or mental disability, she often uses a wheel chair, but can walk on her own on some days even though her legs will stiffen and become jerky and painful. Cognitively, she has difficulty with mathematics and following directions. Although she had attended special education classes in school, she had not graduated from high school and was not employable. In Arizona, she had been declared incompetent, had a guardian, and had lived in group homes. She was currently taking psychotropic, pain, antiseizure, thyroid and cerebral palsy medications.
In discussing the events leading up to the rape, Krystina explained that after she had obtained the money from the ATM on August 7, 2008, Dejourney had approached her, asking if she had a boyfriend. When she replied that she was married and he told her that her husband might be cheating on her, Krystina immediately became fearful of him. When she rejected his suggestion about her husband, Dejourney put his arm around her shoulders and started walking her at a pace she could not control, to a secluded area on the west side of the civic center. When she asked him if he would let her go if she gave him her money, Dejourney told her he would. However, when she gave him the $70 in her possession, he kept it and did not release her. Rather, while seated on a step or ledge, Dejourney removed a white substance from his sock, smoked it in a pipe, and then kissed Krystina, and touched her vaginal area and breasts, making her more anxious. She did not respond or call out to people in the area because she was too scared.
Although Krystina was struggling to remember everything, she recalled that Dejourney next took her to a more secluded location on the other side of the civic center where, behind a small wall, he bent her over, took off her underwear and slapped his penis against her buttocks.*fn5 She did not try to leave because she was fearful that Dejourney would harm her. Afterwards, he dragged her to the trolley stop where they rode several trolleys to Fashion Valley and then got on a bus. On the bus, Dejourney had his arm around her shoulders and when she heard the driver call out street names she recognized, she tried to look around, but Dejourney stopped her by pulling her close to him. They got off the bus at Balboa and Genesee, when Krystina told Dejourney she needed to go to the Albertson's on Balboa. She entered the nearby Boston Market and asked the female cashier for directions to Albertson's. After the cashier gave her directions, Krystina whispered for her to call 911. When the cashier asked her why she wanted her to make the call and Krystina saw Dejourney enter the store, she told the cashier never mind and left the store with Dejourney following behind her.*fn6
Once outside, Dejourney put his arm around Krystina's shoulder and walked at a fast pace that she could not control, essentially dragging her to a fenced dumpster area behind the businesses. There he opened the gate and closed it after they entered, placed his coat on the ground and told her to get down. When she got on her hands and knees, he touched his penis to her genital area from behind her, and entered her vagina. He then told her to get on her back and when she complied, he got on top of her, and entered her again. Krystina whimpered and cried, and begged Dejourney not to do it, but he told her to "shut the fuck up" and to call him daddy. After he stopped, got up and told her they had to go, she followed him out of the dumpster area. However, when he turned and walked one way, she turned and walked the other way, yelling to people for help. She eventually found some people at a nearby bank who assisted her in calling 911.
The prosecution also called Deborah Davies, a training consultant, coordinator, and forensic interviewer with Palomar Hospital in Escondido and Pomona Children's Advocacy Center in Pomona, who testified as an expert witness on developmental disabilities. Davies described developmental disability as an umbrella diagnosis encompassing many conditions, but primarily involving a substantially handicapping condition. She explained that developmental disability will usually involve some degree of intellectual disability as well as significant limitations in two to three areas of adaptive functioning and that common developmental disabilities include cerebral palsy.
When asked a hypothetical as to why a 20-year-old woman with cerebral palsy, who described herself as slow and mentally retarded, and had been institutionalized multiple times, placed in group homes, declared incompetent and given a guardian, would not seek assistance in response to a perceived threat, Davies opined that such a developmentally disabled person is frequently socialized from an early age to be compliant, passive, and acquiescent to perceived authority figures (i.e., to go along with the person in charge); may not have learned self-protective skills and, even if taught such skills, will often have difficulty applying such lessons in the real world; and have difficulty managing her emotions, leading to confusion.
The prosecution also presented evidence that Dejourney had sexually assaulted another woman in 2001. Betty L. testified that on August 15, 2001, she was approached by Dejourney at a homeless day care center where she had gone after just moving to San Diego. Later that day, he approached her again at another homeless facility. When she left the facility to apply for food stamps, he accompanied her and at some point told her about an abandoned house where he stayed. When he invited her to share the house, she agreed because she was sleeping on the streets at the time. On the way there, Dejourney purchased alcohol.
When they arrived at the abandoned house, Betty accompanied Dejourney to a room on the second floor where they drank and she went to sleep. When he later woke her by poking her, she told him she was tired and to leave her alone. When he woke her a second time, he was naked. Despite telling him no, Dejourney then orally copulated Betty. When he demanded she reciprocate, pushing her head to his penis and threatening to throw her out the second floor window, she complied. While doing so, Dejourney slapped her and demanded she do it harder. When he ejaculated in her mouth, she vomited. Dejourney then held Betty on the floor and had intercourse with her. She was finally able to escape from Dejourney when another person entered the abandoned house and called out to see who was there.
With regard to the earlier sexual acts involving Betty, the defense presented testimony from a San Diego Police Department criminalist who had examined Betty's clothing, sexual assault kit, and swabs from vomit at the scene, and had found no semen or sperm. Another criminalist who had conducted a DNA test on a penile swab taken from Dejourney in conjunction with the assault on Betty testified that he had found a mixture of DNA, which was consistent with both Dejourney and Betty.
Defense counsel argued that not only was there no physical evidence to show that the 2001 sexual acts occurred as Betty had testified, there was insufficient evidence to show that Dejourney committed any of the charged sexual acts against Krystina or that she had been forced to do anything or to go anywhere with him. The jury ...