(Super. Ct. No. 07F04297)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case involves the forcible rapes in 2000 of a developmentally disabled woman, Raquel Doe (Raquel), by defendants Martin Parker Wolfe and Scott Michael Cherms. They were not tried and convicted until 2009 when DNA evidence obtained from Raquel was matched with DNA from the defendants. Each was convicted of one count of the forcible rape of a developmentally disabled woman and one count of the aiding and abetting of the forcible rape in concert of a developmentally disabled woman based on the view that Raquel by virtue of her mental condition was legally incapable of giving consent to sex. (Pen. Code §§ 261, subd. (a)(1), 261, subd. (a)(2), 264.1.)*fn1 In the same proceeding Wolfe was also tried and convicted of the 1997 forcible rape in concert of Candy Doe (Candy).*fn2
The jury acquitted both Wolfe and Cherms of acting as a perpetrator in the rape in concert of Raquel and of raping an intoxicated person, Raquel. The jury was unable to reach a verdict on the charge they were perpetrators of a forcible rape of Raquel. The trial court declared a mistrial as to those counts. As a consequence, the convictions of rape were predicated solely on Raquel's legal incapacity to consent to sex.*fn3
Defendants raise numerous issues on appeal. They seek to exploit confusion in the testimony of Raquel about the events of the rape and challenge the evidentiary support of her legal incapacity to consent to sex. Defendant Cherms challenges the jurisdiction of the court to try him under the juvenile law existing at the time of the offense, since he was 17 years old when he raped Raquel in January 2000, 24 years old at the time of his arrest in 2007, and 26 years old at the time of trial. The only issue of merit relates to the sentence imposed for defendants' subordinate term for the rape in concert of Raquel. We shall remand the case for resentencing on count 4, but shall otherwise affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sexual Assault of Raquel
Raquel has been a client of the Alta California Regional Center, which provides services to the developmentally disabled, since she was born. She has been diagnosed with moderate mental retardation and epilepsy, and has a history of seizures.
At the time of the trial, Raquel was 35 years old, and lived with her two children, ages two and four, and her partner. She was not capable of raising a child without help. Her mother took care of her finances. Raquel also had two older children. One lived with Raquel's mother, and one had been adopted by Raquel's sister.
Linda M., Raquel's mother, testified that Raquel went to a friend's house on January 18, 2000, with her cousin, Cassandra Doe (Cassandra). Cassandra was not related to Raquel, but Raquel referred to Cassandra as her cousin. They left in the early evening, while it was still daylight.
When the girls did not return in the time Linda M. had told them to return, she went looking for them, but could not see them anywhere. Sometime later, after getting a phone call from the girls, Cassandra's mother left and came back with the girls. Both girls were crying and had grass in their hair and tears in their clothing. Linda M. could smell alcohol on Cassandra's breath. Cassandra appeared very drunk, could not stand up, and was vomiting. Raquel, too, smelled as if she had been drinking. Raquel was on medication for her seizures, and was not supposed to drink alcohol. Raquel was also feeling a little sick, but was not vomiting. The only thing Raquel told Linda M. was that she had been raped. Linda M. called the police. They came and took a report, and both girls were taken to the hospital.
The details of Raquel's account of the incident varied. She told her story five separate times.
Raquel testified at the trial. She said that she and Cassandra went to the park with six boys she did not know, but whom Cassandra knew. She said she drank one beer, but she did not know what was inside the beer. She testified that one of the boys dragged her to the gutter, then he went after Cassandra. She said that one of them forced her, and put his penis in her vagina. He was a White guy. She saw Cassandra on the grass with people on top of her. She heard Cassandra say she needed help, and Raquel tried to go help her. After the boy ran away, Raquel helped Cassandra up and they walked to a neighbor's house to get help. When they got home she felt dizzy, but Cassandra was "kind of drunk."
2. Raquel's Statement to Officer Prizmich
Officer Dennis Prizmich responded to the 911 call regarding the sexual assault of Raquel and Cassandra. Raquel told Prizmich that they were sitting in the park with the six boys, talking and drinking for about three hours. When the girls said they had to get home, all of the boys grabbed both of them and dragged them to the back of the park near the fence. Two or three of the males pushed Raquel through a hole in the fence along the creek. One of the two White males, a Mexican male, and Joe (who was one of the Black males) held her down on the ground. The White male held her arms and the Mexican male and Joe pulled her pants, panties, and shoes off. The Mexican male tried to get between her legs, but Joe (the Black male) got there first. She told them to stop, but they would not.
After Joe finished with her, he climbed up the embankment and went over to where the others had Cassandra on the ground. Raquel got dressed and went toward Cassandra. She saw a White male with blond hair between Cassandra's legs. Cassandra did not have on any pants or panties, and was saying she needed help. The guys said they had better go before the cops showed up, and they all took off running.
Raquel helped Cassandra get dressed, and tried to get her up and walking, but she could not walk. Cassandra kept saying she felt dizzy and needed to sit down. They finally got to a house, where Raquel asked to use the telephone. Raquel called Cassandra's mother, who came to pick them up. Cassandra was having a hard time breathing, and her mother took her to the hospital. Officer Prizmich took Raquel to the medical center for a rape exam.
3. Raquel's Statement to the Nurse
Raquel told the nurse who examined her that she had been given Kool-Aid, which she later found out contained vodka. She said she felt drunk after drinking the Kool-Aid. She also said that two people out of a group of at least four assaulted her. She said all four were African-American males. She reported only one of them had penetrated her vagina with his penis. She claimed that in addition to vaginal penetration, one of the males' penises had penetrated her rectum. She claimed one of the assailants made her orally copulate his penis and one of the assailants orally copulated her anal area. She was also made to masturbate one of the assailants, after which he ejaculated on his own leg.
Raquel reported that her tailbone hurt from being pushed onto the concrete, and her clothes were wet. She had scratches on her arms and soreness to her vaginal area. She also had some superficial anal tearing.
The nurse took oral, vaginal, rectal, and cervical swabs from Raquel. These, plus Raquel's underwear and blood samples were sent to the county crime lab.
4. Raquel's Multi-Disciplinary Interview Center Interview
Approximately one month after the attack, on February 17, 2000, Raquel was taken the multi-disciplinary interview center, where her interview was videotaped. The videotape was played for the jury. She told the interviewer that six boys had been at the park, and she named Nathan, Tony, and Scott. She told the interviewer that the person who touched her "private" was Tony, and that he put his finger inside her. Tony took his pants off and put his penis inside her vagina. She stated that no one else had touched her. She said Scott raped Cassandra.
5. Raquel's Statement to Detective McBeth-Childs
Sophia McBeth-Childs met Raquel for the first time on May 9, 2006, when McBeth-Childs was working as a detective in the Sacramento County Sheriff's Department. Raquel told McBeth-Childs that she remembered drinking three wine coolers, and that she had felt drunk. Raquel reported that when she and Cassandra said they had to go, "they" dragged her to the creek area and the guys held her down.
Raquel gave McBeth-Childs more identifying characteristics of her attacker whose name was Joe. She said he was husky and kind of heavy, which was why she had been unable to get him off of her. She also said he was shorter than she, and that he seem young -- 17 or so. She thought he was half Black and half White. She said he smelled like "weed" and had a tattoo on his upper right arm. She also thought he had braces.
B. Sexual Assault of Candy (against defendant Wolfe)
Candy testified that she reported being raped on May 9, 1997. She was living in North Highlands at the time. She was headed home on her bicycle after buying a cup of coffee at 7-Eleven around 4:00 a.m., when she cut though a field behind a shopping center. She ran into two African-American males she did not know, who asked her for a cigarette. She stopped, got off her bike, and gave them a cigarette. They introduced themselves as Marty (later identified as defendant Wolfe) and Jeff. They tried to persuade her to go home with them and "do a line" of crank, but she refused.
Marty came up behind her and caught her neck in the crook of his elbow as she was talking to Jeff. Marty told her she needed to lie down and cooperate, or they would "take" it from her. She was terrified, and perceived they meant to rape her. She begged them to let her go, and told them they could have her bike and the money in her pocket.
Marty took off her pants and underwear. He tried to take off her shirt, but she prevented it. Both Marty and Jeff had intercourse with her. Neither used a condom. Each watched while the other raped her. After they both finished, they walked away.
Candy went to a Chevron station, where someone called the sheriff's department for her. When the officers arrived, Candy took them to where the attack occurred. There they found Candy's comb, sunglasses, and cup of coffee. Candy described her attacker to the officers. She identified defendant Wolfe (Marty), and testified he looked pretty much the same then as now.
Candy was taken to a hospital, where she was examined. Swabs were collected from her cervix and vagina. There were nonmotile (nonmoving) sperm in the specimen collected from her vagina. She had abrasions on her back and bruising on her leg. There was vegetation around her vaginal area. There were no injuries inside or outside the vagina, but this was not inconsistent with rape.
Nothing happened with her case until 2007 when she was contacted by Sacramento County Sheriff's Detectives Bradley Jones and Sophia McBeth-Childs. They showed her a photographic lineup. She immediately recognized defendant Wolfe.
The detectives were able to link Candy's case with Raquel's 2000 sexual assault case by DNA evidence, although they were unaware to whom the DNA belonged until late 2006. There were two victims in the 2000 case: Raquel and Cassandra. Both Raquel and Cassandra were contacted, but Cassandra was the only victim that knew some of the suspects involved. Because she was unwilling to cooperate, the detectives had to close the case in May 2006.
C. Investigations After DNA Hit
McBeth-Childs testified that she had made attempts to locate and talk to Cassandra, but that Cassandra had been uncooperative. This initially affected her decision not to move forward with the case in 2006. Then, in December of 2006, she was advised that there had been a DNA hit identifying defendant Cherms. Raquel was then shown a photographic lineup containing Cherms's picture. She did not identify Cherms. On a different day, McBeth-Childs showed Raquel a photographic lineup containing defendant Wolfe's picture. Raquel also did not identify Wolfe.
The detectives engaged in a series of telephone calls with Cherms, which were recorded and played for the jury. The detectives met with defendant Wolfe on February 28, 2007. They met in a parking lot at Wolfe's request, stayed in their respective vehicles, and talked to each other through the open car windows. The interview was recorded, and the recording was played for the jury. During the interview, the detectives showed Wolfe several photographs, including Raquel and Cassandra. Wolfe identified both girls, but did not know their names. At the meeting, the detectives asked Wolfe to provide a DNA sample, but he refused. They later obtained a search warrant for a buccal swab.*fn4
In April 2007, the detectives contacted defendant Cherms while he was in jail on another charge. After discussing the case with him, they realized they had not given him his Miranda warnings.*fn5 They went back to the jail, Mirandized him, and talked to him a second time. Recordings of both interviews were played for the jury.
The detectives showed Cherms several photographs, including photos of Raquel and Cassandra. He recognized Cassandra, and knew her by name. He said at first he did not recognize Raquel, but later acknowledged she had been there in the park.
McBeth-Childs testified that in March and April, 2007, she collected buccal swabs from Wolfe and Cherms. She sealed the envelopes containing the swabs, and sent them to the crime lab.
Deven Johnson, a criminalist in the DNA section of the Sacramento County District Attorney's crime laboratory, testified. Johnson testified that she did DNA testing on Raquel's underwear, and examined her vaginal and rectal swabs. She also did the reference samples for Raquel, Wolfe, and Cherms.
From Raquel's underwear, Johnson extracted a sperm and nonsperm profile. The nonsperm fraction was consistent with Raquel's DNA profile. The sperm fraction was a mixture of two males. Johnson was able to split the mixture into a major contributor and a minor contributor. This means that sperm from one of the contributors was present in greater quantities than the sperm from the other contributor.
The major contributor was consistent with defendant Cherms's DNA profile. The probability of that profile occurring at random in the Caucasian population (Cherms is White) is 1 in 24 quintillion. The minor contributor was consistent with defendant Wolfe's DNA profile. Only a partial profile was possible on the minor contributor. The probability of that profile occurring among unrelated individuals in the African-American population is 1 in 10 trillion. The probability of the profile occurring among unrelated individuals in the Caucasian population is 1 in 2 trillion, and the probability of it occurring in the Hispanic population is 1 in 150 trillion.
Johnson also examined the vaginal and rectal swabs taken from Raquel. She found some sperm on the vaginal swabs. After subtracting out Raquel's DNA profile, there was a mixture of two individual's DNA. The major contributor was consistent with Cherms (probability of 1 in 6 quintillion of the Caucasian population). The minor contributor, again a partial profile, was consistent with Wolfe (probability of 1 in 700 billion African-Americans, 1 in 160 billion Caucasians, and 1 in 1 trillion Hispanics). There was sperm on the rectal swab, but the quantity was insufficient to develop a profile.
Kristen Bejarano, another criminalist in the DNA section of the Sacramento County District Attorney's crime laboratory, testified. She analyzed a DNA sample taken from Candy's underwear. The nonsperm fraction from the underwear was the same as Candy's reference DNA sample. The sperm fraction from the underwear was the same as the profile from Wolfe's reference sample. The probability of the sperm fraction's DNA profile occurring at random in unrelated individuals was 1 in 28 quadrillion of the African-American population, 1 in 4 quadrillion of the Caucasian population, and 1 in 520 quadrillion of the Hispanic population.
Bejarano also tested DNA collected from Candy's vaginal and cervical swabs. The vaginal swab contained a mixture of at least three individuals. After subtracting Candy's DNA profile, Bejarano found the remaining profile was a mixture of two males. Bejarano subtracted Wolfe's DNA profile as well. The person who donated the third DNA sample was unknown at the time of trial. As to the mixture of sperm DNA off of Candy's vaginal swab, 1 in 30 million African-American, 1 in 3 million Caucasians, and 1 in 5 million Hispanics would be included in the mixture. The results of the cervical swab were nearly identical.
Incapacity to Consent to Sex
Wolfe argues there was insufficient evidence that Raquel was rendered incapable of giving consent because of her developmental disability.*fn6 Wolfe points to the fact that by the time of the incident, Raquel had already given birth as a result of sexual relations with her boyfriend. In essence, he argues that since Raquel had engaged in consensual sex, she could not be incapable of consenting. We disagree.
In addressing this claim of insufficient evidence we review the whole record in the light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) "We examine the record to determine 'whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, 'the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 139.) We determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 573].) Unless it is clear that "on no hypothesis whatever is there sufficient substantial evidence to support the verdict," we will not reverse. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
"The existence of capacity to consent is a question of fact. [Citation.] A lay juror is able to assess the extent of a victim's mental disability. ' "The question whether a person possesses sufficient resources--intellectual, emotional, social, psychological--to determine whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point." [Citation.]' [Citation.] 'There is a nationwide consensus that expert testimony on this issue is not required. [Citations.]' [Citation.]" (People v. Miranda (2011) 199 Cal.App.4th 1403, 1413-1414.)
Early on, the Supreme Court defined legal consent as "an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not." (People v. Griffin (1897) 117 Cal. 583, 585, overruled on another point in People v. Hernandez (1964) 61 Cal. 2d 529, 536.) In People v. Griffin, supra, the Supreme Court determined that evidence the victim "had been feeble-minded since early childhood" was sufficient to support a finding that she was incapable of giving legal consent. (Id. at p. 587.)
Raquel testified at trial, so the jury was able to see and hear her, and assess her demeanor. Her demeanor was highly probative of her mental condition. (People v. Miranda, supra, 199 Cal.App.4th at p. 1414.) Relative to her consent, Raquel testified that the males dragged her and forced her, and that she "didn't want to do it." She said, "I didn't want to get forced." When asked what she did not want to be forced to do, she replied: "I didn't know they were going to do it."*fn7 She was asked if she said anything when she was penetrated, and her response was that she was scared. She was asked, "Did you want them to do that to you?" She responded, "No."
When Raquel's mother testified about her disability, she said, "she is developmentally delayed. She can't write; she can't read. She can sign her name. . . . She knows how to distinguish the A, B, C's but she can't put the letters together. [¶] She lives independently with the help of Alta, STEP, and myself."*fn8 Raquel's mother testified that Raquel could not drive, and had never had a job. Prior to the incident, Raquel had sought and received her mother's permission to date her boyfriend, Fernando, and to have a child with him.
Raquel required her mother's assistance with grocery shopping, and her mother would take her to her appointments to explain things, because Raquel "doesn't understand very well." Raquel's mother did her banking for her and made sure her bills were paid. Raquel could not drive. At the time of trial, she lived independently with two of her children, but she had her mother's assistance, as well as the services of an independent living instructor. She would not be capable of raising children without help.
She was capable of responding to questions with simple words and phrases, but was not able to pick up the thread of a conversation and continue it. She could prepare very simple meals, like eggs or macaroni.
Raquel had the following exchange on the witness stand with Cherms's trial counsel:
"Do you -- if I ask you what rape means, could you tell me?
"Q. Okay. Let me ask you this.
"You have one child by Fernando; right -- your ...