P. v.
Filed 4/2/12 P. v. Washington CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMIEN WASHINGTON,
Defendant and Appellant.
B233370
(Los Angeles
County
Super. Ct.
No. BA379157)
THE COURT:
A jury
convicted appellant Jamien Washington
of forcible rape in violation of Penal
Code section 261, subdivision (a)(2)
that appellant had suffered two prior convictions of serious or violent
felonies within the meaning of sections 667, subdivisions (e) through (i),
1170.12, subdivisions (a) through (d), and 667, subdivision (a)(1). The trial court found appellant had suffered
three prior prison terms within the meaning of section 667.5, subdivision (b).
After
denying appellant’s Romero motion
the trial court sentenced appellant to a total term of 35 years to life. The sentence consisted of 25 years to life
for the rape conviction under the Three Strikes Law and five years each for the
two prior serious felony convictions.
We appointed
counsel to represent appellant on
this appeal. After examination of the
record, counsel filed an “Opening Brief” containing an acknowledgment that she
had been unable to find any arguable issues.
At appellant’s
trial, Charlotte H. testified that, on June
22, 2002, she was a post-graduate student at the University of
Southern California (USC). Before
beginning her university education, she had worked as a legal prostitute in Nevada. On the day in question, she went to the
computer lab in Waite Phillips Hall to check her email. Because it was summer, there were no classes
in the building and few people. Charlotte
realized she needed to use the restroom and decided to use the one on the
fourth floor where she normally had her classes, because she would be more
comfortable. As she was using one of the
stalls, she heard the restroom door open.
She then saw two men’s shoes showing through the opening from the
adjacent stall, facing in her direction.
There was complete silence for approximately five minutes. The person in the next stall left the stall,
and Charlotte decided to “face the
music.” When she opened the door of her
stall, appellant was standing outside.
Appellant
told Charlotte to give him all her
money or he would kill her. Appellant
then rifled through Charlotte’s
belongings. She tried to leave, but
appellant was in front of her, and the space was very narrow. He kept putting his hands around her neck and
threatening to kill her. He put his
hands inside her bra and asked if she had any money there. He put his hands down her pants and his
finger in her vagina. He told her to
take off her clothing, and he also undressed.
Every time she tried to leave, appellant would put his hands on her neck
and say he would kill her. Appellant had
Charlotte lie on the floor, and he
began to penetrate her. Appellant was
not lubricated, and Charlotte
“reverted back to [her] work habits” and told him to use some water. She tried to appear compliant so that she
would not be killed. Charlotte
began to manipulate appellant and pretended to moan so that he would finish
faster, and this irritated appellant.
After
appellant finished, he told Charlotte
to go back in the stall. She heard
appellant put his clothing back on. She
heard the bathroom doors open and close and the hallway exit door close. She waited a short time and put on her pants
and shirt and ran down to the computer lab.
She told personnel to call campus security because she had been
raped. She was later interviewed by the
Los Angeles Police Department (LAPD) and underwent a sexual assault
examination.
Detective
Michael Zolezzi was assigned Charlotte’s
case when he worked the cold case special section. In 2009, he learned that a cold hit had
identified the DNA obtained in Charlotte’s
sexual assault examination as appellant’s.
A forensic DNA analyst from Orchid Cellmark testified at appellant’s
trial that she tested the vaginal swabs taken from Charlotte
and obtained female and male DNA profiles, which were reported to the
LAPD. The female profile matched the
blood sample from Charlotte. USC police arrested appellant, and
appellant’s saliva was obtained for DNA analysis. An LAPD criminalist testified that she
compared appellant’s and the female DNA profile to the profiles obtained by
Orchid Cellmark. Appellant’s DNA profile
matched that of the male profile from Charlotte’s
rape kit, as analyzed by Orchid Cellmark.
In 2009,
Detective Zolezzi showed Charlotte
a photographic lineup, and she selected appellant’s photograph as that of the
rapist. Charlotte
also identified appellant at trial.
Heather
Skidmore testified that she was attending USC on November 16, 1998.
She was studying outside while sitting on a step when she was approached
by an individual who asked her for the time.
As she looked at her watch, he lifted up his shirt to show her a gun in
his pants. He said, “Look, I have a gun. Give me your wallet.” Skidmore got up and ran into her classroom
building. Campus security and the police
were called. The police caught the
person, and Skidmore identified him in a field showup. She identified appellant as this person at
trial. She also saw him in court when
she was subpoenaed to testify against him, although she did not have the
opportunity to do so. She later learned
appellant had shown her a replica gun.
Appellant
testified that in 2002 he lived 10 to 15 blocks from the USC campus. He went to the campus from time to time to
play basketball. On June 22, 2002, he went across campus to use the
restroom after the game. He crossed
paths with Charlotte, and they
greeted each other. They got on the
elevator to go to the fourth floor, and she asked him to go with her. She said he was handsome. She told him to go in the restroom with her,
and they both used the facilities. When
they came out, “it got kind of hot and heated in there.” She started touching appellant, and he did
the same to her. They undressed, and she
told him to use some water on his penis.
They had sex for 20 to 30 minutes.
When it was over, he left. He
believed they exchanged telephone numbers.
He did not rape Charlotte.
Appellant acknowledged that he entered into a plea bargain on the charge
of attempted robbery of Skidmore but said he did not ask her for anything.
On November
30, 2011, we advised appellant that he had 30 days within which to personally
submit any contentions or issues that he wished us to consider. On December 15, 2011, appellant filed a
brief in which he appeals on the grounds that:
(1) the statute of limitations bars his conviction for violating section
261; (2) the People failed to prove that the sexual intercourse was not
consensual and that it was accomplished by force, violence, duress, menace, or
fear; (3) appellant did not receive a fair trial because a videotape of the
computer lab was destroyed, and it would have shown the victim was not in the
lab when she said she was, proving appellant’s innocence; (4) appellant did not
receive a fair trial because the victim initially said she did not fear for her
life but said on the stand that she did; and (5) the testimony of the victim
from his prior conviction was highly prejudicial and not probative in this rape
case when he pleaded guilty to attempted robbery in the prior case. Appellant also requests a new attorney be
appointed to represent him on appeal.
Appellant’s
first issue on appeal is without merit.
Under section 801.1, subdivision (b), the
in section 290, subdivision (c) (of which rape is one) is 10 years. (§ 801.1, subd. (b), 290, subd. (c).) The victim was raped on June 22, 2002, and
appellant was arraigned on January 12, 2011, well within the statutory
limitation period.
We also
reject appellant’s second and fourth issues.
The evidence established that appellant accomplished the rape by means
of fear, and that it was not consensual.
The victim acknowledged that she told police in 2002 that she never
feared for her life. She explained at
trial that she had said this “in the sense that [she] kept [herself] calm
throughout and kept it from escalating.”
Her attacker was soft-spoken and not so aggressive, but she felt that if
she lost control, his soft-spoken demeanor would change to aggression, and he
would kill her. The victim testified
that, during the commission of the offense, “[t]he whole time I feared for my
life . . . the whole thing was terrifying, somebody coming
into the bathroom, a man coming in and I can’t escape. I mean, I was in fear for my life the entire
time.” She added that she did not know
why she would have said the opposite, but she remembered saying it.
It is well
settled that, unless a statutory corroboration requirement applies, the
testimony of a single witness is sufficient to prove a fact. (See Evid. Code, § 411 [“Except where
additional evidence is required by statute, the direct evidence of one witness
who is entitled to full credit is sufficient for proof of any fact”];
1181 [testimony of a single witness, unless physically impossible or inherently
improbable, is sufficient to support a conviction]; People v. Hampton (1999) 73 Cal.App.4th 710, 722.) It is the exclusive function of the trier of
fact to assess the credibility of witnesses and draw reasonable inferences from
the evidence. (People v. Young, supra, at p. 1181.) The jury clearly believed Charlotte’s
testimony that she was afraid for her life during the entire incident and
accepted her explanation for her previous statement.
Appellant’s
third issue has no merit. In
479, 488 (Trombetta), the United
States Supreme Court held that the prosecution’s duty to preserve evidence is
limited to matters “that might be expected to play a significant role in the
suspect’s defense.” (Fn. omitted;
976.) Detective Zolezzi stated on
cross-examination that he met with USC personnel and discussed with them
whether there was a videotape from the computer lab that might have shown that
Charlotte did in fact go to the lab that day.
Detective Zolezzi discovered that there had been a video in 2002 and
that a detective had reviewed it. There
was, however, no trace of that video ever being booked into evidence. He agreed that “most likely” someone was
negligent in not doing so.
We conclude
that, in addition to such a video being of little exculpatory value in relation
to the rape, there was no evidence of bad faith in the failure to preserve the
videotape. Although the state’s good or
bad faith in failing to preserve evidence is ordinarily irrelevant to assessing
whether its conduct amounted to a due process violation (Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood)), it is of great significance when the challenge to the
state’s conduct is based on the failure to preserve potentially exculpatory
evidence—that is, “evidentiary material of which no more can be said than that
it could have been subjected to tests, the results of which might have
exonerated the defendant.” (
In such a case, “‘“unless a criminal defendant can show bad faith on the
part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.”’”
(People v. Catlin (2001 26
Cal.4th 81, 160, quoting Youngblood,
at p. 58; see also People v. Zapien (1993)
4 Cal.4th 929, 964.) Negligent
destruction of (or failure to preserve) potentially exculpatory evidence,
without evidence of bad faith, will not give rise to a due process
violation. (Youngblood, at p. 58.)
Finally,
appellant argues that Skidmore’s testimony was highly prejudicial and not
probative in this rape case when the offense against Skidmore was attempted
robbery. We disagree. Before trial, the People moved to admit
evidence of two prior convictions—one from 1996, and the Skidmore
incident. The trial court ruled that the
1996 incident was too remote, but found the evidence of the attempted robbery
more probative than prejudicial. The
fact that the incident occurred on campus bolstered its probative value. Since motive and intent were clearly at
issue, the People were entitled to show that the defendant had criminal intent
when he approached Charlotte.
Evidence
Code section 1101, subdivision (b) provides, “Nothing in this section prohibits
the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or
accident, . . . ) other than his or her disposition to
commit such an act.” The trial court may
exclude or admit this type of evidence pursuant to Evidence Code section 352
which provides: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” “The trial court’s determination will not be
disturbed on appeal absent a clear showing of an abuse of discretion. [Citations.]”
(People v. Linkenauger (1995)
32 Cal.App.4th 1603, 1610.) As the trial
court indicated in making its ruling, “[t]he prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence. ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s
case. The stronger the evidence, the
more it is “prejudicial.”’” (
638.) Here, the evidence of appellant’s
conduct with Skidmore was not more inflammatory than that of the offense he
committed on Charlotte, and the evidence was highly probative given the
circumstances of this case.
We have
examined the entire record, and we are satisfied that appellant’s attorney has
fully complied with her responsibilities and that no arguable issues
exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) Appellant’s request for a new attorney on
appeal is denied.
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN, P.
J., DOI TODD, J., ASHMANN-GERST, J.
references are to the Penal Code, unless otherwise indicated.
