P. v. Warren
Filed 8/8/06 P. v. Warren CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. MELROLANDO WARREN, Defendant and Appellant. | A103913 (Alameda County Super. Ct. No. H31401) |
A jury found Melrolando Warren guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)) and six counts of sexual penetration with a foreign object (id., § 289, subd. (a)(1)), finding true special allegations of kidnapping and gun use (id., §§ 667.61, subd. (d)(2), 12022.3, subd. (a)) and a prior strike conviction for forcible rape (id., §§ 1170.12, subd. (c)(1), 667, subd. (e)(1)). Sentenced to a prison term of 65 years to life, Warren appeals claiming error in denying defense motions under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and seeking a remand to decide possible entitlement to presentence custody credits. We reject the claim of Batson/Wheeler error but remand regarding the credits.
Background
The trial evidence is immaterial except to note that Warren is Black, as were four venire women against whose peremptory challenges he raised Batson/Wheeler objections.
Pertinent to the Batson/Wheeler claim, however, is a factual recitation given to the court by prosecutor Roy Scheingart before voir dire. The victim, Scheingart said, was waiting for a bus to go to work early one September 1986 morning in San Leandro when Warren approached her and, after some small talk, put a gun to her chest and forced her to walk with him a few blocks to a small alleyway beside a store. There he forced her to disrobe and, over several minutes, committed the charged penetrations and rape. The victim at one point grabbed the gun from the ground and tried to shoot Warren, but it did not fire. They wrestled over the gun, and he got it back after slapping her and biting her in the back of the head. He penetrated her once more, then threatened to kill her if she told anyone and ordered her to count to 50 as he left. She called her boyfriend, and went to the sheriff's department and had a sexual assault exam. Over the next few weeks, she was shown three photo lineups assembled from her descriptions. But none contained Warren's picture, and she said each time that her assailant was not in them. Warren went unapprehended for these crimes for years but gave DNA samples while in prison for a rape conviction in 1991 and sexual battery in 1997. Forensic testing in 1997 of semen from the 1986 victim's underwear yielded a DNA profile, and Warren was matched as her assailant in mid-2001 through a â€
