United States District Court, E.D. California
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 ...