Superior Court of Alameda County, No.H46973, Honorable Michael J. Gaffey, Judge.
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Marche Lamont Harrison of residential burglary (Pen. Code, § 459),*fn2 residential robbery (§§ 211, 212.5), forcible rape while acting in concert (§ 261.4), forcible oral copulation while acting in concert (§ 288a, subd. (d)), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The court found defendant has one prior conviction for selling drugs (Health & Saf. Code, § 11352, subd. (a)) and two prior convictions for robbery (§ 211). The court sentenced defendant to 107 years to life in prison.
Defendant contends that an extended lapse of time between the filing of the complaint and his arrest violated his rights to due process and a speedy trial; that the trial court abused its discretion in replacing a deliberating juror with an alternate juror; and that the trial court erred in admitting certain expert testimony. We find no merit in these contentions and shall affirm the judgment. We shall publish only the portion of our opinion addressing the removal of a deliberating juror.
There was evidence at trial of the following facts. Jane Doe*fn4
lived in Union City with her husband, Charles, and their two
daughters, Angela age 22 and Erica age 16. Charles was a marijuana
dealer. On the morning of December 28, 2004, Jane and her daughters
were home but Charles was away. Around 10:30 a.m., the doorbell rang
and Angela opened the front door to two men with a dolly and large
cardboard moving box. One of the men, later identified as defendant,
was holding a white binder. He asked Angela if Charles lived there and
when she answered affirmatively the men entered the house.
Defendant pointed a gun at Angela and asked "Where's the safe?" Angela said she did not know what he was talking about and defendant asked if anyone else was home. Angela said her mother and sister were home. Defendant and the other man, both armed, forced Angela to take them to the bedroom of her mother, Jane Doe. As defendant held Angela, with a gun pointed at her, the other man grabbed Jane by the arm and "yank[ed]" her from bed. The two men took Jane and Angela to the bedroom where Erica was sleeping and defendant's accomplice pulled the young woman from bed, saying "This ain't no dream."
The men moved the women into the living room and ordered them to strip. The women removed everything but their panties. The men forced Jane to duct tape each daughters' ankles and wrists together, and tape shut their mouths. Defendant told his accomplice to shoot the bound women if his questions were not answered and demanded that Jane tell him where the security system control was located. When shown the system in the hall closet, defendant tore it apart, threw it into the bathtub and ran water over it. Defendant then pulled Jane into the garage where the safe was located and demanded that she open the safe. After it was opened, defendant ordered Jane back to the living room and returned to the garage where he emptied the safe of a Rolex watch, jewelry and other items.
Defendant then took Jane with him as he went through the house "ransacking everything." In Jane's bedroom, defendant grabbed her buttocks and said "I want a piece of that." Defendant asked if there were condoms in the bedroom and when Jane said there were not, defendant went through the house looking for condoms. Finding none, defendant took a plastic bag from a kitchen cabinet and forced Jane back to the bedroom.
Defendant, still armed, ordered Jane to take off her panties and lie on the bed. Defendant forced open her legs, orally copulated her, then put the plastic bag over his penis and "forced his penis into [her] vagina." He ejaculated into the plastic bag. Defendant then brought Jane to the living room where he told his accomplice that it was "his turn." The accomplice pulled Jane back to the bedroom and forced her to orally copulate him. He then took Jane to the living room, tied her, and the men went through the house looking for drugs and cash. The men took the women's identification cards and cell phones. As they were leaving, defendant told the women he would kill them if they called the police and that he would know if they called because he had an "inside guy" with the police.
As soon as the men left, Jane untied herself but within a minute or two defendant returned alone, retied Jane, and briefly went into the kitchen and down the hallway to the bedroom. Jane testified that "[i]t sounded like he was looking for something in the master bedroom." Defendant then left again. Jane waited a few minutes to be sure he was gone and then untied herself and her daughters.
Defendant's death threats made Jane afraid to immediately call the police. She telephoned her husband, friends came to comfort her, and she began to clean the house. One of the friends convinced her to call the police and she did so several hours after the robbers left. The police arrived and saw that the garage had been "ransacked." They found a plastic bag containing semen in the hall closet. A white binder matching the description of the binder defendant had when he arrived at the house was found on the kitchen table. An invoice inside the binder bore defendant's fingerprints.
Following the identification of defendant's fingerprints, the police prepared a six-person photo line-up from which Jane positively identified defendant as the man who raped and robbed her. The police obtained a search warrant and searched an Oakland residence where they recovered jewelry and other items taken from Jane's residence, a fully loaded revolver, and a photograph of defendant holding a revolver and mail bearing defendant's name and address.
Shortly afterwards, a criminal complaint against defendant was filed and a warrant was issued for defendant's arrest. However, defendant was not apprehended until December 2008, almost four years after the charges were filed. Following defendant's arrest, a criminalist found that defendant's DNA profile matched the semen contained in the plastic bag recovered from Jane's house. The plastic bag also had material on the exterior surface, which the criminalist determined to be a mixture of Jane's epithelial cells and sperm cells from her husband. The criminalist testified that the surface of an object put inside a female vagina can receive a transfer of preexisting sperm from within the vagina.
1. The time lapse between the filing of charges and defendant's arrest did not violate his rights to due process and a speedy trial.*fn5
In the trial court, defendant moved to dismiss the charges on the ground that the nearly four-year delay between the filing of the complaint and his arrest prejudiced his ability to defend against the charges, in violation of his due process and speedy trial rights. Defendant now challenges the denial of the motion.
Delay in prosecution between the filing of a felony complaint and a defendant's arrest may constitute a denial of due process and the right to a speedy trial if the delay is unjustified and prejudicial. (People v. Cowan (2010) 50 Cal.4th 401, 430.)*fn6 To prevail on a motion to dismiss on this ground, the defendant must affirmatively " 'demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.' " (Ibid.) On appeal, "[w]e review for abuse of discretion a trial court's ruling on a ...