Zenteno v. Gipson

          FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by A. Kay Lauterbach of the office of the Attorney General.

         I. PROCEDURAL BACKGROUND

         Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Kings, following his conviction by jury trial on March 24, 2011, for kidnapping, rape, and various enhancements. (Clerk's Tr. at 320-21.) Petitioner was sentenced to an indeterminate sentence of fifty-eight (58) years in state prison. (Id.)

         Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District, on April 4, 2012. (Lodged Doc. 32.) The court affirmed the judgment on July 17, 2013. (Lodged Doc. 35, People v. Zenteno, 2013 Cal.App. Unpub. LEXIS 4996 (July 17, 2013).) Petitioner requested rehearing, and the court granted rehearing based on the recent Supreme Court case Alleyne v. United States, 133 S.Ct. 2151 (2013). Upon rehearing, the court again affirmed the judgment on October 9, 2013. (Lodged Docs. 36-40.) On January 21, 2014, the California Supreme Court denied review. (Lodged Docs. 43-44.) Petitioner did not seek collateral review of the petition in state court.

         Petitioner filed the instant federal habeas petition on February 25, 2014. (Pet., ECF No. 1.) Petitioner presents four claims for relief in the instant petition. Petitioner alleges: (1) that his Sixth Amendment right to confrontation was violated by the presentation of testimony by a law enforcement officer of confessionary statements of a non-testifying defendant; (2) that his right to counsel of his choosing was violated by the trial court denying his motion to discharge retained counsel; (3) that counsel’s conduct was ineffective based on a conflict of interest based on counsel’s failure to present useful evidence to Petitioner’s defense; and (4) that his right to a trial by jury was violated by the trial court’s determination as to a```whether there were separate occasions of sexual assault. (Id. at 20-41.) Respondent filed an answer to the petition on June 20, 2014. (ECF No. 20.) Petitioner did not file a traverse. The matter stands ready for adjudication.

         II. STATEMENT OF THE FACTS^[1]

         PROCEDURAL SUMMARY

On February 18, 2011, the Kings County District Attorney charged defendant and his two codefendants, Rolando Jaramillo and Victor Cordova Alatorre, with the kidnapping and rape of victim on April 1, 2009. Count 1 charged all three defendants with kidnapping to commit rape or rape in concert (§ 209, subd. (b)(1)). Count 2, a lesser crime, charged all three defendants with kidnapping by force or fear (§ 207, subd. (a)). Count 3 charged all three defendants with rape in concert (§ 264.1). Count 4, a lesser crime, charged defendant with rape (§ 261, subd. (a)(2)). Count 5 charged defendant with sexual penetration (§ 289, subd. (a)(1)). With respect to all counts, the information alleged defendant personally inflicted great bodily injury on victim (§ 12022.7, subd. (a)). With respect to counts 4 and 5, the information alleged that defendant inflicted great bodily injury on victim in the commission of a sex offense (§ 12022.8). With respect to counts 3, 4, and 5, the information alleged special circumstances under section 667.61, subdivisions (a), (b), (d), and (e).

A jury found defendant guilty on counts 1, 3, and 5, and found true all of the special allegations and circumstances.[fn3] The trial court sentenced defendant to 58 years to life, as follows: on count 5, 25 years to life for sexual penetration with special circumstances, plus a five-year term on the great bodily injury enhancement under section 12022.8, plus a stayed three-year term on the great bodily injury enhancement under section 12022.7; on count 3, 25 years to life for rape in concert with special circumstances, to be served consecutively to the sentence in count 5, plus a three-year term for the great bodily injury enhancement under section 12022.7; on count 1, a stayed term of life.

FN3: Codefendant Rolando Jaramillo was tried before the same jury and found him guilty on counts 1 and 3.

Codefendant Victor Alatorre entered into a plea agreement and testified at trial.

         FACTS

In December 2008, 29-year-old victim worked as a cashier at a gas station in Lemoore. She met defendant because he was a repeat customer. Eventually they exchanged names, although defendant gave her a false name. The first time defendant asked her for her cell phone number, she told him, "[W]hat if you're married[?]" The second time he asked, she gave him her number. He told her he was 36 years old, about 10 years younger than he actually was. And he told her he was childless, divorced, and had been single for 10 years, rather than married with five children. They started dating. They went dancing and out to eat. In January 2009, he took her to a motel, but she did not feel comfortable and they did not go inside. Later that month, they went to a different motel. Defendant told her they would watch television. Instead he took off his clothes and started kissing her. She allowed him to undress her and perform oral sex on her. He rubbed her vaginal area with his penis, but did not penetrate her with it. He did not have an erection. She was a virgin and defendant told her, "[I]t's hard to penetrate a virgin so don't you ever say somebody raped you." She did not understand why he would say that.

They went to a different motel later that month to be together. They were both naked and they kissed, but victim did not want to have sex, so they massaged each other. She believed defendant was upset because she refused to have sex.

Victim considered defendant her boyfriend and she wanted to marry him. He had asked her to marry him and she had agreed, although they had no formal engagement. Defendant came to victim's house to talk to her mother. In victim's presence, he told her mother that he wanted to marry victim. At some point, victim visited a health care provider to evaluate birth control methods, and she decided they should use condoms, although they never did.

On February 7, 2009, one day after victim's birthday, they went back to the first motel. They kissed and defendant rubbed his penis around her vagina, but he did not have an erection. Defendant attempted to penetrate her with his penis. He told her he could not do it because she was making him uncomfortable, like he was raping her. He was able to penetrate her slightly for just a few seconds. This was the first time. She went to the bathroom and noticed she was bleeding.

On February 8, 2009, defendant took victim to his brother's house to meet him. As they left his house, victim was confronted by a woman who asked her if she knew defendant was married. The woman said she was defendant's wife. She told victim, "[H]ave a lot of patience towards [defendant]." Victim was upset because defendant had lied to her. She remained quiet until they were driving to her home. She asked him why he had lied to her. He said he was only 14 years old when he got married, was no longer living with his wife, and wanted to divorce her. Defendant took victim home. Victim was disappointed in defendant and wanted to end the relationship, so she told him she did not want to see him anymore.

Defendant attempted to communicate with victim. He called, sent text messages, and went to her workplace.[fn4]

FN4: When victim was asked on cross-examination if she told defendant that he would have to steal her (counsel used the Spanish word "robarme") and tie her up if he wanted to see her, she said, "No, I don't recall saying that to him."

On Wednesday, April 1, 2009, victim worked until about 10:00 p.m., then drove home to Stratford. She parked her car in front of her house and everything seemed normal. She got out and started walking toward the entrance. She noticed a stranger, Victor Alatorre, hiding behind her sister's car, crouching by the car's tire. She asked him, "[W]hat are you doing?" He stood up and grabbed her face, putting his palm over her mouth. Her glasses fell off. He told someone to grab her feet. Victim was fighting and she managed to move Victor's hand. She yelled for help. Another man, Rolando Jaramillo, grabbed her feet. Victor put his other hand around her stomach and they carried her to a car that pulled up. She continued to struggle and yell for help. She fought and bit, but she was unable to free herself and the two men managed to put her into the back seat of the car. Victor pushed her in one side and the other man pulled her legs in from the other side. The two men got into the back seat with her. Once inside, she realized it was defendant's car. Defendant was in the driver's seat and he started driving. As victim continued to struggle, Rolando tied her hands together with a shoelace or string while Victor held her. As they did, victim bit Victor's finger. Rolando told her to stop struggling or they were going to hurt her. Defendant pulled over and told the men to tie her up. Rolando tied victim's feet together with another string. Defendant told the men to make sure "they cover [her] mouth good." One of the two men covered her mouth with duct tape. They put tape around her hands too. Defendant drove a while, then stopped. Rolando got out of the car and went to another car. Defendant started driving again. After several minutes, he pulled over again and met with someone who drove a small truck with a camper shell. Victim managed to pull the tape from her mouth and she asked Victor why he was doing this. She asked him if he would want someone to do this to his mother or sister. She was crying and she asked him to let her go. He told her this was a favor he owed defendant because defendant had saved his life. He said he could not let her go because the person defendant was meeting with had a gun and would kill him. She did not know who that person was. Defendant returned and started driving again. Victim was crying and defendant turned the radio up. At some point, he asked Victor if victim was okay. Eventually, they reached the same motel that she and defendant had visited before. Defendant stopped and Rolando approached from another car. Defendant got out. Rolando and Victor pulled victim out of the back seat and carried her into a motel room that defendant opened. The room looked like the same one they had been in before. Rolando and Victor put her on the carpeted floor between the bed and the dresser, and they left. Victim was still tied up, although her mouth was no longer taped.

Defendant sat down on the floor by victim. He said he did not want to do that but it was the only way he could be with her and talk to her because she did not want to be with him. Then he stood up and started taking his clothes off. He put a pillow under her head. He pushed up her shirt and bra under her chin and started kissing her breasts. She was wearing black pants and a sweater tied around her waist. After kissing her breasts all over, he pulled her pants and underwear down below her knees. He moved his head toward her crotch, but she was able to cross her legs, even though she was still tied up. She repeatedly told him no. He forced his knee between her legs to open them, and he put his finger into her vagina, which he had never done during their relationship, and she felt pain. She testified: "Because I could feel, like, if he hurt me. I don't know if it was, like, with his nail, but when he introduced the finger, it-there was-I felt pain." He returned to kissing her breasts. He managed to open her legs more and he penetrated her vagina with his penis, pushing himself inside her. This time he had an erection. It was painful and awful for victim; it hurt a lot. She continued to tell him no and she told him he was hurting her. She tried to push him away with her hands. He said nothing. Her feet were still tied, but she could not remember if her hands were. He remained inside her for minutes. When he withdrew, there was white liquid on her legs and she saw that she was bleeding from her vagina.

Defendant came to her side and told her he was sorry. She stayed a few minutes on the floor. She was no longer tied, but she did not know how she had become untied. Defendant brought her some toilet paper so she could clean herself up. She got up, dressed herself, and went into the restroom. She cleaned herself of blood with toilet paper. When she came back, he told her there was blood on the pillow. He took the case off and washed it in the restroom. He came to her and hugged her. She did not hug him back. He said he was sorry and he would take her to her house. She remembered wearing a beaded necklace that night, but she no longer had it and did not know what happened to it.

She got into the car with defendant. She was crying. She was disappointed and could not believe he had done that to her. When they got to her house, she looked for her things that she remembered dropping when the men grabbed her. Defendant helped her look. She found her glasses, pen, and car keys. She wrote the license plate number of defendant's car on her hand, in case she needed to report it to the police. She went inside the house and closed the door. Her mother, sisters, and niece were all asleep. She wrote down the license plate number on a piece of paper. She took her clothes off and put them in a plastic grocery bag for the police. There was blood on her underwear and on the sweater that had been tied around her waist. She believed defendant had raped her and she wondered what she should do. She was scared and confused. She was afraid defendant could hurt her family. She went to bed, but could not sleep.

In the morning, she did not tell her family what had happened. Defendant sent her a text message and she responded. She could not remember the content of either message. She went to work that day. Defendant came and told her he was sorry and, now that he looked at her, he realized what he had done was wrong.

The next time she saw him was three days later, on Sunday, April 5, 2009. She had the day off. Defendant came to her house and they talked about what had happened on April 1, 2009. She asked him about the two men and he said they were not his friends. He insisted that he was sorry and that he wanted to talk with her mother. Defendant told the mother that victim might be pregnant, but she no longer wanted to marry him because he had lied about not being married. He told her mother to convince victim to marry him, so she could forgive him and get married. Victim told him, "[J]ust tell her the truth, " meaning that she could be pregnant because he raped her. But he did not mention the events of April 1, 2009. Victim's mother went back inside. Defendant told victim his divorce was in the process and they could get married. He said a lawyer was helping him. Defendant left and victim went back inside the house.

Victim told her mother she did not willingly have sex with defendant. She explained what had happened. Her mother told her to call the police, but she was hesitant because she was embarrassed, scared of defendant, and afraid she might be deported.

The next morning, April 6, 2009, victim went to the station and spoke to Detective Waggle. After that, she was examined by Patricia Driscoll, a Sexual Assault Response Team (SART) nurse.

         Victim's Examination

Driscoll was highly trained and had performed about 1, 500 SART exams during the prior 10 years. Victim told Driscoll she had been abducted from her yard by two men who tied her arms and legs together and taped her mouth. She was taken to a motel, left on the floor tied up, and assaulted by her ex-boyfriend when he kissed her breasts and penetrated her with his finger and penis. Victim told Driscoll she had never had sex before this assault. Driscoll observed bruising on victim's arm. When Driscoll examined victim's external genitalia, she did not observe any injuries. She inserted a clear speculum to examine the vagina. She noticed bleeding from lacerations or tears to the upper part of the vagina. Victim reacted in pain, so Driscoll took the speculum out immediately. She tried using a smaller speculum, but that caused pain as well. The pain was too severe for her to examine victim further or take internal photographs. Driscoll removed the speculum. She had never been unable to take photographs due to severe pain. She inserted a Foley catheter and inflated the balloon to put pressure on the wounds and stop the bleeding. At this point, she observed that a portion of victim's hymen was missing altogether. Victim's injuries were consistent with the use of force. Her profuse bleeding and severe pain prompted Driscoll to advise her to go to the emergency department immediately for treatment.

Driscoll told Detective Waggle that victim's injuries were the worst she had ever seen and victim needed to go to the emergency room to be treated, so Detective Waggle took victim to the hospital where she was examined by Lorri Bolt.[fn5] Detective Moroles went to victim's home to get the clothing she had worn on April 1, 2009, including the blood-stained underwear, pants, and sweater.

FN5: See Bolt's testimony, post.

         Defendant's Apprehension

Later that day, detectives arranged a recorded pretext call between victim and defendant. Victim asked defendant about the men who kidnapped her and put her in his car. He said they were just men from Arizona that his friend, Armando, told him about. Defendant gave the two men a few hundred dollars. He had to hire them because he had a bad back. He said he took her to the motel to be alone with her and he felt bad and guilty for what he had done. He felt desperate and wanted to talk to her and be alone with her. It had been a while since he had been with a woman. He felt very sad because he never intended to hurt her. Defendant said, "I know I am guilty of all of this." He said he did not feel good about any of it and he was ashamed. He knew he hurt her, and he never thought he would do the damage that he did. She asked him, "[W]hat if I'm pregnant[?]" He said, "[F]or me, it would be a beautiful thing. I would take care of you." She said, "[Y]ou didn't take care of me before." He said, "I know." He said he wanted to see her. At times during the conversation, defendant became suspicious as victim asked him questions. He would ask, "[W]hat are you doing? Where are you[?]" He said, "[A]re you with the police? Don't do that to me." He said, "I know you are asking me these questions to lock me up. Go ahead and lock me up then." At this point, she asked him, "[W]hy did you have sex with me in the manner you did?" He answered, "[O]h, my God, you permitted me to. I never would have done that unless you permitted me to." She said, "[I]f I permitted you to, it wouldn't have hurt." He said it hurt because it was her first time. He would not tell her his location, but he was desperate to see her, so they agreed to meet that evening at Taco Bell.

Officers waited at Taco Bell and arrested defendant without incident. At the station, Detective Waggle conducted a recorded interview with the assistance of a certified Spanish language interpreter.

         Defendant's Interview

In the interview, which was played for the jury, defendant told Detective Waggle that he hired two strangers to help him take victim because he was desperate to see her. He did not plan to have sex with her at the motel, and the two men did not know he was going to have sex with her. He did not have her permission to take her, and he thought he had done something wrong because he was led by a passion to do these things. He explained to Detective Waggle that the two men grabbed her in her front yard and she fought back because she was scared. The two men put her in the back seat of defendant's car and got in with her. Defendant told victim to calm down because he just wanted to talk to her. Then she got more upset, asking him why he was doing this to her. He said he needed to talk to her. She said this was not the gentlemanly thing to do. She said she did not think he could ever do something like this to her. She said he did not love her. He told her he did not want to do this, and he did love her, but he needed to do it because she refused to talk to him and he was losing everything for her. He and the two men tied her hands and feet with a nylon rope so she would not escape. He told her he was sorry he was hurting her but he had to tie her up because she would try to jump out of the car and get hurt. He also used tape on her hands because the rope did not tie well. She told him he had no reason to do this. He said he understood but he needed to know what was going on with them. He told her he expected her to be upset, but she had to understand that he was desperate. She was screaming loudly, saying he was not a man. He told her to be quiet because she would wake the neighbors; if she did not stop, he would have to cover her mouth. He put a piece of tape over her mouth. She later took the tape off and remained quiet. He told her he was taking her to the motel and they would just talk. If she wanted, they could get married the next day.

At the motel, he went in the office and got a room while victim and one man stayed in the back seat. The men carried victim into the motel room. Defendant and victim lay down and talked. She was crying and she looked at him and asked why he had to do this. She asked why he would do this if he loved her. She said she could not believe he was this kind of person. He had claimed to be such a great man and look what he had turned into. He asked her to forgive him; he had made a mistake because he was desperate. He said he wanted to know what was going to happen to him because he had lost everything and she refused to talk to him. After about 20 minutes, her stress dissipated and they just talked. By this time, she had untied herself. He told her he felt bad about this and he wanted her to forgive him. He said she could take the keys to his car and leave. When she did not leave, he grabbed some pillows from the bed. She stayed quiet. He told her to hug him. She hugged him and they hugged for 20 minutes. He kissed her and she kissed him. He asked her if she wanted to be with him. She remained silent and just looked at him. He started caressing her. He took her clothes off and then took his own clothes off. As he continued caressing her, he kissed her neck and breasts. He put his fingers inside her vagina to see if she was ready for him to penetrate her. He decided she was ready and they had sex. She was not afraid. It did not last very long because she was bleeding a lot. She was a virgin. She started to bleed when he penetrated her with his penis. He was afraid because he had blood on his hands, and he said he was hurting her. She turned to look at him and he asked what he should do. She stayed still and positioned herself. He took this, plus her hug and kiss, to mean that he could penetrate her. He continued until he finished. He ejaculated inside her because they both wanted a baby. She did not tell him to stop. He did not rape her. If he had raped her, she could have scratched or kicked him. Afterward, they hugged and stayed on the floor. Then he got up and got towels and started cleaning the blood. He offered her some water and they talked for a while. He offered to take her to his house or to her house and she told him to take her to her house. They left the motel around 4:00 a.m. Outside her house, they talked about getting married. He said he did not want to ruin her reputation. She said she did not think they were going to make it because she felt very bad about going around with a person who was not yet divorced.

Defendant told Detective Waggle that on Sunday, April 5, 2009, he went over to victim's house. He and victim talked to victim's mother. Defendant told her that victim might be expecting a baby and he wanted to apologize to her because he had lied to her about being single when he asked for victim's hand in marriage. He assured her that he had started the process of divorce that day, but he did not know if victim had started to feel differently and no longer wanted to marry him. The mother said victim was a grown woman who knew what she wanted to do. The mother left, and defendant and victim continued talking until 2:00 a.m. Victim told him she was confused, and if a baby was born, she did not know what was going to happen. He was not the person she thought he was, and she was proving herself a bad mother by being there with him. He told her she should not blame herself because she did not want to be with him; he had taken her.

Defendant told Detective Waggle that he felt bad at every moment and there were so many people to whom he needed to apologize. Detective Waggle allowed defendant to write apology notes. He wrote to his wife and to victim.

Defendant explained to Detective Waggle that before April 1, 2009, he and victim had had sex about five times, but he had never been able to penetrate her because she would bleed and he would feel bad and not want to hurt her. As soon as he tried to penetrate her, she would bleed. One day, she mentioned that they had not been able to do it and she laughed. He said he did not want to hurt her.

Defendant told Detective Waggle that what happened on April 1, 2009, was not like the Mexican custom of stealing a girl and having sex with her so she would be forced to stay with him. He explained that he did take victim but he did not force her or rape her. She wanted to be with him too. In fact, just the night before the interview, she had given him the beaded necklace he was wearing. She was happy with the baby she could be carrying.[fn6]

FN6: Victim did not remember giving the necklace to defendant. The last time she saw it was the night she was raped.

         Surveillance Footage

At trial, the jury was shown surveillance video footage from outside the Kings Rest Motel on April 1, 2009. At 10:54 p.m., defendant's car pulled into the parking lot. He got out of the car and walked into the office to obtain a room key. He showed his Mexican identification card. The clerk wrote down information and handed the keys to defendant. A white pickup pulled in and parked. Defendant got in his car and parked it in front of the room. Rolando and Victor carried victim into the room, then walked back outside. Victor got into the driver's seat of defendant's car and moved it into a parking stall. As Rolando and Victor walked away, Victor looked at his left arm, which was where victim said she bit him.[fn7] At about 11:03 p.m., the white truck left the motel parking lot. At 3:05 a.m. the next morning, footage showed defendant driving his car out of the motel parking lot.

FN7: Later, Victor identified himself on the surveillance video and showed Detective Waggle where victim bit his arm and finger.

         Rolando's Interview

Rolando did not testify at trial, but Deputy Lemus testified regarding the April 26, 2009 interview of Rolando. Deputy Lemus, who was fluent in Spanish, assisted Detective Waggle in the interview. Rolando provided several untruthful versions of his story, but Deputy Lemus told him there had been a kidnapping in Stratford and he believed Rolando had been involved somehow. Rolando eventually explained that Victor called him around 7:00 p.m. and asked if he wanted to make a quick $100. Rolando agreed. He drove a white pickup truck to the Kmart across the street to meet Victor and his friend, defendant.[fn8] Victor told Rolando they were going to kidnap defendant's girlfriend and they wanted Rolando's help. They advised Rolando of the plan to kidnap the girlfriend. They were going to take two vehicles to Stratford. Rolando agreed to be involved only as far as driving or moving vehicles, but not to be involved in the actual crime.

FN8: Rolando told Lemus he did not know Victor's friend, so Lemus arranged a photographic lineup. Rolando identified defendant.

The three men drove two vehicles to Stratford. Defendant drove his vehicle, and Rolando drove the white pickup with Victor as a passenger. Rolando parked the pickup down the street from victim's house. Rolando and Victor got into defendant's car and they drove to victim's house. Victor and Rolando got out and positioned themselves in the dark near victim's house and waited for her to come home from work. The plan was for Victor to grab her and Rolando would open the car door so Victor could put her inside, but when Victor grabbed victim, she immediately began to fight back, screaming and kicking. Rolando believed people would hear and catch them in the act, so he grabbed victim's feet and helped Victor drag her to the car. Rolando got in the car first and pulled her in as Victor pushed her in. She was kicking and screaming, so Rolando took a piece of string or rope that was in the car and bound her feet together. She continued to fight and he grabbed her hands and tied them. He suggested that she be gagged. Victor took the bandana from his pocket and tried to shove it into her mouth. That did not work, so Rolando suggested putting tape over her mouth. After her mouth was taped, she was subdued and secured. At this point, they drove to the white pickup and Rolando got out of defendant's car and into the truck and followed defendant's car. He helped carry victim to the motel room.

Lemus asked Rolando about the cultural practice in Mexico of taking a girl and keeping her so her parents would approve of their marriage. Rolando understood that a girl could be raped in this situation. The girl's parents would force her to marry the man if she had had sex with him.

         Victor's Testimony

Victor agreed to testify truthfully in exchange for an eight-year sentence, rather than a potential life sentence. Victor had known Rolando for eight or ten years, including when they were in Mexico. On March 31, 2009, Victor and Rolando were talking outside Victor's trailer in a trailer park in Lemoore when they saw defendant drive up in a truck. Victor had never seen or met defendant before. Defendant asked them if they wanted some work, and they said yes. Defendant took Victor's number and said he would call later and tell him what they would be doing.

At about 9:00 p.m. the next day, defendant called Victor and asked if he could meet him at Kmart and he agreed. Victor called Rolando and told him to meet in front of Kmart.[fn9]

FN9: Victor had a 2007 misdemeanor burglary conviction for shoplifting at that Kmart.

At Kmart, Victor got into defendant's car and Rolando followed them to Stratford in the white pickup. Rolando parked the truck and got in the car. They stopped to buy soda and cigarettes, then parked the car in front of a school for 10 or 15 minutes. There, defendant told them the plan. He said his girlfriend would be arriving in her car and they would take her. He was going to marry her but she was mad at him and did not want to see him again. They needed to grab her so he could talk to her and clear things up. If her mother found out they were together, she might agree that they should get married. Defendant told them that if victim did not want to go, they should grab her and put her in the car forcibly, although he told them not to use violence. Defendant said he would pay the two men $150 to split now and then more later. He did not tell them they would take victim to a motel and Victor did not expect that to happen. The two men agreed to do the job. At victim's house, the two men got out and hid in the yard. Victim arrived in her car and then walked toward the house. Victor grabbed her upper body and Rolando ran up and grabbed her feet. Defendant pulled the car up and opened the car door. Victim yelled for help and fought to free herself by kicking, slapping, and biting. She appeared frightened. She bit Victor on his finger and arm. With difficulty, the two men managed to get her in the car. All three of them got in the backseat. Defendant started driving and he passed Rolando some shoestring to tie her feet so she would not try to yell or move. She was kicking and slapping. Defendant stopped the car in the middle of the road and turned around to help hold her hands. He and Rolando tied her hands. Rolando then tied her feet. She was not tied up tightly. She was yelling so defendant tried to put a bandana in her mouth, but she resisted. Defendant told her, "[H]ey, it's okay, it's me." When she recognized defendant, she calmed down a little and quit resisting, but she said he was not a man because he needed help to grab her and take her. She said a lot of things and defendant asked her not to speak. He grabbed some duct tape and put it over her mouth and also put some around her hands. She was sad and crying, and she seemed somewhat frightened. Defendant drove to the white pickup and told Rolando to get out.

Alone with victim in the back seat, Victor removed the tape from her mouth and she remained quiet. She asked Victor why he had Dated this. He did not answer. She asked whether he had sisters and would like that to happen to them. He said no.

At the motel, Victor and Rolando carried victim into the motel room. Victor took defendant's keys and moved his car. Victor returned to the room and gave defendant his keys at the door. Defendant handed Victor $150, and Victor returned to the white truck where Rolando was waiting. They split the money and drove back to the trailer park in Lemoore.

The next day, defendant called Victor. Victor and Rolando went to defendant's house where he gave them a piece of furniture and another $100 to split. Victor did not see defendant again.

Victor had heard of the Mexican practice of a man taking a young girl by force to his home; the girl's parents think they have been together sexually and they make them get married.

         Defense Evidence

         Lorri Bolt

Lorri Bolt, a family nurse practitioner in the emergency department of the hospital, examined victim following Driscoll's advisement. Bolt held a higher position than Driscoll in the nursing ranks; however, Bolt was not trained in the forensic examination of sexual assault victims. The court accepted Bolt as an expert in general nursing examination of wounds.

On April 6, 2009, Bolt examined victim to evaluate and repair lacerations that were observed by Driscoll. Upon examination of victim, Bolt did not observe any external injuries. She inserted a lighted speculum and observed no active bleeding and no internal injuries-no lacerations, no tears, and no interruption of the vaginal lining. Bolt saw no evidence of the lacerations that concerned Driscoll.

Bolt did see a small amount of old blood, which was evidence of healing. She could not say that no injuries existed because the vaginal area heals rather quickly. When shown photographs of victim's bleeding, Bolt agreed it was not normal and could have been caused by lacerations.

         Gonzalo Pimentel

Gonzalo Pimentel lived in Stratford. He knew defendant from playing soccer. He saw defendant and a girl at the A & M Market. Defendant introduced the girl as his girlfriend and said they were on the way to a dance. Gonzalo could not remember when ...