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People v. Andrade

California Court of Appeals, First District, Fourth Division

July 24, 2015

THE PEOPLE, Plaintiff and Respondent,
v.
GLEISTON PORCINODE ANDRADE, Defendant and Appellant.

Alameda County Super. Ct. No. C163011, Hon. Allan Hymer, Trial Judge

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COUNSEL

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 Plaintiff and Respondent.

OPINION

REARDON, J.

A jury convicted defendant Gleiston Porcinode Andrade of six counts of forcible oral copulation (Pen. Code, [1] § 288a, subd. (c)(2)) and seven counts of forcible rape (§ 261, subd. (a)(2)). The jury also found true the allegation that defendant had committed the offenses against multiple victims. (§ 667.61, subd. (e)(4).) The trial court sentenced defendant to an aggregate term of 195 years to life in state prison, comprised of 13 consecutive terms of 15 years to life. On appeal, defendant raises a plethora of evidentiary and instructional errors, as well as sentencing error. We affirm.

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 passenger 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

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sex on him. He used a condom. Eventually, he said that was enough, climbed over to the passenger side, pulled off Jane Doe I’s shorts and underwear, and began having vaginal intercourse with her. At one point, he said he could not feel anything, so he took off the condom, and then put his penis back in Jane Doe I’s vagina. Appellant ejaculated into a napkin, which he threw out the window, along with the condom.

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 passers-by 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.

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Appellant then drove Jane Doe II down High Street, saying he knew of a “little place” where they could park that was “comfortable.” He drove through a place with “nothing but a bunch of trucks and then just trees and dirt, ” eventually stipping in an isolated area Jane Doe II asked for the money. Appellant reached underneath his seat and pulled out a black gun, then pointed it at Jane Doe II’s head. Jane Doe II panicked but could not open her door. Appellant told her to take her clothes off. He demanded that Jane Doe II perform oral sex on him, and Jane Doe II complied. Appellant was wearing a condom. Appellant then got on top of her and had vaginal intercourse with her. Eventually, he took the condom off and told her he had not finished. He placed his penis in Jane Doe II’s mouth, then her vagina, then her mouth again, where he ejaculated. He threw the condom out the window.

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

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talking, they saw some police officers pass nearby. Appellant told her to get in the car, and Jane Doe III complied.

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 black 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 call 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.

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Jane Doe III was shown two photo lineups. In the first, she did not recognize anyone. In the second, she became visibly upset, started crying, and identified appellant as the man who had raped her.

D. Rape of Jane Doe IV [2]

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

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Doe V was frightened and crying, but appellant told her that he would not do anything to her if she cooperated. Jane Doe V put a condom on appellant and performed oral sex on him. Eventually, appellant stopped her, climbed into her seat, and began having vaginal intercourse with her. After approximately 10 minutes, appellant got off of Jane Doe V. He threw the condom out the window. He told Jane Doe V to get out and walk away; he backed the car away.

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 a 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

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and DNA analysis.” She examined the sexual assault exam kits obtained from Jane Doe III, Jane Doe I, Jane Doe V, and Jane Doe II. She was unable to identify sperm on any of the samples from Jane Doe III’s kit. She was able to find sperm in Jane Doe I’s kit, but the DNA profile she extracted matched Jane Doe I’s consensual sexual partner. She also found sperm on Jane Doe V’s underwear, but was unable to extract a DNA profile from the minimal sample. Sentiwany also found sperm on Jane Doe II’s oral swabs, and appellant’s DNA was a 1-in-89-billion match. Finally, Sentiwany examined the condom recovered from Jane Doe V’s rape, and appellant’s DNA was a 1-in-96-sextillion match.

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 ...


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