People v. Evans
| Decision Date | 16 March 2023 |
| Docket Number | H047340 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAMOU JOSEPH EVANS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1643957)
Defendant was convicted by jury of, among other things, raping several women and assaulting others with the intent to commit rape. On appeal from a prison sentence of 390 years to life defendant argues the trial court improperly allowed unduly prejudicial evidence of prior sexual offenses, and should have provided requested pinpoint jury instructions about those offenses as well as the mental state required for some of the charged offenses. He also contends the errors were cumulatively prejudicial. Finding no prejudicial error, we will modify the judgment to strike two prior serious felony conviction enhancements which the parties agree must be stricken as inapplicable. We will affirm the judgment as so modified.
A 21-count information charged defendant with the following set forth here by victim. (We use the pseudonyms for the victims used in the trial court in the interest of privacy.) As to Elizabeth Doe, defendant was charged with assault with intent to commit rape and oral copulation during a first degree burglary (Pen. Code, § 220, subd. (b); count 1); five counts of rape by intoxication (Pen. Code, § 261, subd. (a)(3); counts 2, 4, 6, 8, 12); five counts of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4); counts 3, 5, 7, 9, 13); oral copulation by intoxication (Pen. Code, former § 288a, subd. (i); count 10); and oral copulation of an unconscious person (Pen. Code, former § 288a, subd. (f); count 11). (Unspecified statutory references are to the Penal Code.) As to Yadira Doe, defendant was charged with assault with intent to commit rape and forcible sexual penetration during a first degree burglary (§ 220, subd. (a); count 14).[1] As to Angelina Doe, defendant was charged with rape by intoxication (§ 261, subd. (a)(3); count 15). As to Blanca Doe, defendant was charged with rape by intoxication (§ 261, subd. (a)(3); count 16). As to Roberta Doe, defendant was charged with rape by intoxication (§ 261, subd. (a)(3); count 17). As to Denita Doe, defendant was charged with assault with intent to commit rape and forcible sexual penetration during a first degree burglary (§ 220, subd. (a); count 18). As to Evangelina Doe, defendant was charged with assault with intent to commit rape and forcible sexual penetration during a first degree burglary (§ 220, subd. (a); count 19) and rape by intoxication (§ 261, subd. (a)(3); count 20). Defendant was also charged with misdemeanor possession of a controlled substance without a prescription. (Bus. &Prof. Code, § 4060; count 21.) The information alleged defendant had three prior serious felony convictions (§ 667, subd. (a)) and three prior strike convictions (§ 667, subds. (b)-(i)).
Elizabeth Doe testified about an incident involving defendant that occurred in July 2016 at her friend Regina's house in San Jose. She knew defendant, having met him a few years earlier at a San Jose nightclub. There were several women at the house for a birthday potluck when Elizabeth arrived around 6:00 p.m. with her three children. Defendant arrived around 10:00 p.m. with another man. Elizabeth had by that time consumed about two and one-half mixed alcoholic drinks and was feeling "buzzed." Defendant had brought a big bottle of vodka and poured everyone shots. He shook the bottle before pouring the shots. Elizabeth drank a shot, as did all but one of the other women. Elizabeth then started to feel intoxicated, and her friend Denise became so intoxicated that she could not stand. Elizabeth and Regina walked Denise to a bedroom and placed her on a bed. Defendant poured everyone a second shot that was purple due to being mixed with Crystal Light. Elizabeth drank the second shot. She testified she did not remember anything else from that night after drinking the second shot.
Another woman who attended the party and did not drink anything provided by defendant testified that Elizabeth and the other women became noticeably more inebriated after drinking the alcohol provided by defendant. Elizabeth appeared dazed, and at one point stopped in the middle of a conversation "and just kind of looked out into the open." The woman noticed defendant shook the alcohol bottle before pouring shots.
Elizabeth testified that her next memory was being awakened by Regina's housemate Germaine the next morning. Elizabeth was in the living room, and her children were also in the room. She panicked because she was going to be late for work. She still felt drunk, and her inner upper thighs were sore. She testified it felt different than a normal alcohol hangover, and that she believed there was some other substance in addition to alcohol in the shots defendant poured.
Elizabeth thought that Germaine had surveillance cameras in the house, and asked him to check the footage from the night of the birthday party. Germaine testified that in July 2016 he had a video surveillance system with multiple cameras in his bedroom. The cameras used infrared lights to record black and white images when the lights were out. He checked the recording from the night of the party about a week later, at Elizabeth's request. After reviewing the footage, he told Elizabeth to come to the house because he was calling the police. The surveillance system video recording from the night of the birthday party was admitted into evidence at defendant's trial. Portions of the recording were played for the jury, and the court made clear that the entire recording was admitted and that the jury would be able to review it during deliberations.
A portion of the video recording was played during Elizabeth's testimony and she was asked to describe what she observed. She identified herself as the female in the video and defendant as the male. Elizabeth testified that it appeared she vomited at some point, which defendant cleaned. She also noted defendant appeared to be taking photographs with his cellphone at one point. Watching the video did not refresh Elizabeth's recollection about anything that happened that night.
Defendant was arrested in August 2016, and police officers searched his home in Morgan Hill. An officer found "several different bottles that had different pills inside of them" in a drawer in defendant's bedroom. Some pills were in clear plastic baggies, others were mixed inside pill bottles. A criminalist identified the pills as including: oxycodone, temazepam, trazodone, alprazolam, and zolpidem. There were also condoms in one of the drawers. Defendant's phone was seized. A forensic search of the phone uncovered, among other things, photographs of a woman's "bare buttocks and outer labia of her vaginal area." The time stamps for those photographs matched the approximate time stamps of flashes occurring on the video from the surveillance camera in Germaine's bedroom. Those photographs were admitted into evidence, as were photographs found on defendant's phone of a woman other than Elizabeth.
The police issued a press release about defendant's arrest in August 2016, which included defendant's booking photo and a contact number for individuals to provide information. Several women came forward.
Angelina Doe testified about an incident involving defendant that occurred in October 2011 when she was 21 years old. She met defendant at a Halloween gathering at a Santa Clara apartment. Angelina drank two beers before defendant arrived. Defendant arrived around midnight with a bottle of vodka and a bottle of cranberry juice. Defendant introduced himself to Angelina and asked if she wanted a drink. Defendant mixed her a drink with his back turned to her. Angelina testified the drink tasted strongly of vodka and she drank about half the cup.
Her next memory was being on her back on the floor in the bathroom near the toilet. Defendant was kneeling above her. Angelina testified that she was in and out of consciousness while they were in the bathroom, and she was unable to move. Angelina felt like she had been drugged; it did not feel like alcohol intoxication. Defendant pulled down Angelina's shorts so that her vagina was exposed. Defendant put his penis inside her vagina and moved his hips. Angelina did not consent to any sexual activity. She woke up the next morning on the couch in the apartment feeling weak and tired, and her vaginal area was sore. Angelina reported the incident to the police years later after seeing a news article about defendant's arrest.
Blanca Doe testified about an incident involving defendant that occurred in March 2010. Blanca joined her friend Roberta Doe at a club in San Jose to celebrate Roberta's birthday. The women were in their early 20's. Blanca had "more than three" drinks and then became sad about having left her young son at home. Blanca went to a hotel for a planned after party. Roberta met her in the hotel lobby with a friend named Benny, and the three of them went up to a room. Blanca and Benny sat on one bed chatting while Roberta made a phone call. Blanca and Benny smoked some marijuana in the bathroom. Roberta left briefly and returned with defendant. Defendant had a bottle of vodka. Roberta drank some shots of the vodka.
Blanca eventually announced that she was tired and lay down on one of the beds. She fell asleep and awoke to someone lifting her up and placing her on the other bed. The hotel lights were off. She felt hands on her legs pushing up her dress and pulling her underwear down to her ankles. She then felt a penis penetrate her vagina. The penetration last for about...
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