People v. Guiterrez

• Decision Date: 08 August 1991
• Docket Number: No. A048340,A048340
• Citation: 284 Cal.Rptr. 230,232 Cal.App.3d 1624
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel GUITERREZ, Defendant and Appellant.

Page 230

284 Cal.Rptr. 230

232 Cal.App.3d 1624

The PEOPLE, Plaintiff and Respondent, v. Daniel GUITERREZ, Defendant and Appellant.

No. A048340.

Court of Appeal, First District, Division 2, California.

Aug. 8, 1991.

Paul Delano Wolf, Susan Raffanti, Jeffrey S. Kross, Oakland, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Aileen Bunney, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

Appellant Daniel Guiterrez appeals following jury trial where he was convicted on five counts of violating Penal Code sections 261(a)(2) and 264.1 (rape by force while acting in concert with others). He asserts the court erred (1) by refusing to instruct on the offense of battery; (2) by denying his motion for judgment of acquittal and for a new trial based on the insufficiency of the evidence; (3) in declaring a proposed prosecution witness unavailable, and thus permitting his preliminary hearing testimony to be received as evidence; and (4) by refusing to instruct the jury on the statute of limitations. We shall affirm.

STATEMENT OF THE FACTS

Carol J., the victim in this case, testified that on March 25, 1983 she and some friends and went to a club, had some drinks and danced until approximately 2 a.m. After that time she returned to her Union City condominium, where she and her boyfriend had an argument. Ms. J. testified that she needed some time alone, and decided to walk to the 7-Eleven store to buy food for breakfast. She walked toward the store and sat down on the curb across from the store. She noticed a van drive by and then return a few minutes later. The van stopped next to her, the door opened and some men in the rear of the van began talking to her. The men asked if Ms. J. wanted a ride to the store, but she declined and began walking. Two men came up beside her, grabbed her arms and told her to get into the van.

When Ms. J. entered the van she saw four men in the back, one in the driver's seat and one in the front passenger seat. The van started moving and was travelling away from the 7-Eleven store. The men began smoking marijuana; Ms. J. did not smoke any. After a few minutes the van stopped near a 7-Eleven store, but it was not the one Ms. J. wanted to go to. When she tried to get out of the van she was thrown to the floor.

The van started moving and Ms. J. felt hands touching her breasts and ripping at her clothes. She testified that she was very frightened and was kicking, biting and cursing at her assailants. After a time, she told the men if they left her alone she would remove her clothes; she explained she thought she wouldn't get hurt as much that way. Crying, she removed her clothes and her bra which had been torn by the men.

Ms. J. asked the men how they would like it if someone did this to their girlfriends or mothers and someone punched her in the sternum with his fist. One of the men began to lie on top of her and she kicked him; after that point the men held her legs down. Ms. J. testified that she felt hands on her breasts and fingers inside her vagina and anus. One of the men then got on top of her and had intercourse with her while four of the others held her arms and legs. After that man was finished, another man got on top of her and had intercourse with her. At that point Ms. J. recalled that four men were holding her limbs and her head was resting in someone's lap.

Some of the men told her to fondle their penises, but when she did so too roughly they told her to stop. Someone told her to suck his penis but she warned him if he placed his penis in her mouth she would "bite it off." The men then lifted her hips off the floor of the van, and told her they were going to sodomize her, but in fact did not. A third person then laid on top of Ms. J. and had intercourse with her. Ms. J. was crying and asked if "it was over yet." The man holding her head told her to relax and that it would end soon. A fourth man then got on top of her and had intercourse with her. Finally, a man lay on top of her and whispered that he was only going to fake intercourse with her because his friends were urging him to have sex with her. In all, Ms. J. recalled five separate acts of intercourse, but could not definitively indicate the sequence of the attacks.

After a time the men gave Ms. J. her clothes so she could dress. She testified that she attempted to dress, although she was not given her panties and her jumpsuit had been ripped open. The men let Ms. J. out and warned her not to look at the van or they would kill her. As the van pulled away she noticed it bore a bumper sticker that said "Argus" newspaper.

Ms. J. stated that the men conversed with one another in Spanish but spoke to her in English. Because it was dark out and the van was not illuminated Ms. J. was unable to identify any of the assailants. However, she testified that one of the men--the one who punched her in the chest--was wearing a white shirt. According to Ms. J., none of the men smelled of alcohol.

Ms. J. was left off about five miles from her home. She walked until she saw some cars passing by; two men stopped and offered to help her. At first she ran, but was persuaded to accompany them to a nearby restaurant where two police officers were eating. The officers took her to the Union City police department and later to a hospital, where she was examined using a sexual assault kit. Several days later the police asked her to try to identify the van and she positively identified a vehicle as the van in which she was raped.

Union City police officer Rich Noack testified that on March 26, 1983, at approximately 4 a.m. he was taking his lunch break at a Carrows restaurant. A man approached to say he had found a woman who had been assaulted. When the officer went out to the parking lot he found Ms. J., whom he knew from the time she worked a waitress at a local restaurant. He and another officer, Officer Reese, took Ms. J. to the police station, and then to the hospital.

At approximately midnight on March 28 Officer Noack was notified that another officer had spotted a van that fit the description provided by Ms. J. He went to look at the van, and spoke to the driver, Luis Ortiz, who gave permission for his van to be inspected. Ms. J. was summoned to the van; after viewing the van she identified it as the vehicle in which she was raped. Luis Ortiz was placed under arrest and taken to the police station. Officer Noack later took Ortiz to the area where the rape occurred to look for Ms. J.'s lost underwear. The underwear was found near that site.

Sergeant Shelton of the Union City police department testified he spoke to Luis Ortiz on March 28 while he was being held at the station. Ortiz gave the officer written permission to search the van and the room he used in his father's home. When Sergeant Shelton went to the Ortiz home Luis' father also consented to the search.

The sergeant discovered Luis' brother, Victor, sleeping in the bedroom. Victor awoke and was questioned about Luis' whereabouts on the night of March 26. Victor stated that he, Luis, a friend Jaime and another man, whom he knew only as "Mike," had been to a carnival on the 26th. After the carnival, they drove to Oakland, then to Fremont, where they danced at La Fuentes restaurant until it closed. He explained that Jaime and Mike were then dropped off and he and Luis returned home and went to sleep. According to Victor, he and Luis did not drink that evening.

Luis' father and sister, Norma, went to the police station so they would be present while Luis (who was a minor) was questioned. Luis told the sergeant that on March 26 he and Victor first went to visit a friend. When the friend was not home, they went to a restaurant in Fremont. Because they were under age they were not allowed into the restaurant, but waited outside until after midnight, hoping to speak to some girls. They then went home and went to sleep. Luis claimed he and Victor were alone in the van and did not pick up any friends that evening.

Sergeant Shelton left for a moment, then returned and told Luis he did not believe his story because it conflicted with Victor's report. After Luis' sister urged him to tell the truth he changed his story. He reported that on the evening of the rapes, he, Victor, appellant and "Mike" went to a carnival and left at approximately 10:30 p.m. to visit appellant's girlfriend. When she was not home they picked up another friend, Larry, and went to the La Fuentes restaurant, where he and Jaime had to wait outside.

After the restaurant closed they went to a convenience store and soon noticed a girl on the side of the road. According to Luis, Jaime asked the girl if she wanted a ride and she voluntarily got into the van. He stated that appellant was asleep in the front passenger seat and did not awake until they reached their destination in the Seven Hills area of Union City. Mike then asked the girl if she wished to have intercourse and she did not resist. After Mike was done, Jaime also had intercourse with her. Appellant then moved toward the woman and she started yelling and kicking. Appellant slapped her across her face and had intercourse with her. Luis admitted that although he knew it was a "bad thing," he nonetheless had intercourse with the woman because she was not resisting. Luis told Sergeant Shelton that Larry did not participate in the crime and did not hold or touch the victim. After the assault ended they let the woman out of the van and threw her panties out the window. After Luis completed this statement he wrote his version of the events.

At trial, Luis gave a different version of the events of that evening. Luis testified that he spent March 25, 1983 with appellant, Michael Corjasso, Larry Gonzalez, Jaime Infante and his brother, Victor. They drank some beer and then went dancing at La Fuentes restaurant until approximately 1:30 a.m. When they left the restaurant appellant was sitting in the...