People v. Kelly

• Court: California Court of Appeals
• Writing for the Court: MENETREZ J.
• Docket Number: E080897
• Decision Date: 05 December 2024
• Citation: People v. Kelly, E080897 (Cal. App. Dec 05, 2024)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JERRY KELLY, Defendant and Appellant.

1

THE PEOPLE, Plaintiff and Respondent, v. JERRY KELLY, Defendant and Appellant.

E080897

California Court of Appeals, Fourth District, Second Division

December 5, 2024

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FVI22000003. Alexander R. Martinez, Judge. Affirmed.

Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MENETREZ J.

A jury convicted Jerry Kelly of forcible rape, forcible oral copulation, kidnapping to commit rape, and simple kidnapping. (Pen. Code, §§ 261, subd. (a)(2), 287, subd (c)(2)(A), 209, subd. (b)(1), 207; unlabeled statutory citations refer to this code.) As to the rape and oral copulation offenses, the jury found true the special circumstance allegations of aggravated and simple kidnapping under the one strike law. (§ 667.61, subds. (d)(2) (e)(1).) On appeal, Kelly argues that the trial court prejudicially erred by (1) denying his request to call a deputy district attorney to contradict the victim's testimony about what she said during a case meeting and (2) admitting the victim's testimony that Kelly told her that he had been affiliated with gangs. We find no error and therefore affirm.

BACKGROUND

I. Prosecution's case

On the evening of December 7, 2019, Jane Doe got into a fight with her boyfriend, and he kicked her out of his house. Doe was homeless at the time, so she called a friend, Dino, to give her a ride to another friend's house. When Dino arrived, he had two other passengers with him and said that he "had to make a stop real quick first." Dino then drove to a rural area of Apple Valley, California, where Kelly and others had set up an encampment of cars and RVs. That evening, Doe remained with the group and smoked methamphetamine from a shared pipe. Doe was a regular methamphetamine user at that time.

Doe and Dino spent the night in one of the RVs. The next morning, they had consensual sex, and Dino then left the RV to check on his two other passengers. Soon thereafter, Kelly came into the RV and told Doe that Dino had left to deal with an "emergency." Kelly told Doe that he promised Dino that he would give her a ride later that day.

Doe spent the next several hours with Kelly in a different RV, talking, drinking a small amount of beer, and smoking methamphetamine. Doe testified that Kelly "made himself out to be a violent type of person" by "talking about . . . fighting with people and . . . being from gangs." She also testified that Kelly made statements throughout the day that made her fear that he was going to hold her captive at the encampment. For example, he told her that she had "to stay there in the encampment and . . . do things for people there, take care of people there. And that once I learned how to do everything right and I knew how to act right, I can go see my family then, and he would have to accompany me. He would have to be with me to go see my family."

Sometime around dusk, Kelly told Doe, "Let's go," and they got into a white car that was parked about 10 to 12 feet away from the RV. Kelly started the engine but quickly turned it off, saying that he was not going to take Doe anywhere until she "made him come." Doe responded that she really needed to get back to her son. Kelly got out of the car, opened the passenger side door, pulled Doe out by her arm, and pushed her toward the RV.

Doe testified that she did not want to go back inside the RV but went in anyway because Kelly was "right behind [her]." She testified that she was afraid of Kelly because of his size (he was six feet tall and weighed 250 pounds; Doe was five feet five inches and weighed 150 pounds), because he had just pulled her out of the car, and because of the comments about violence that he had made earlier in the day. As she reentered the RV, she thought, "I [am] never going to see my kids again."

Inside the RV, Kelly told Doe that she had to "make him come," and she replied, "If you fuck me, it's going to be rape." Kelly took her clothes off, forced her to have oral and vaginal sex, and slapped her face and buttocks. Because she was afraid of Kelly, she did not fight back or yell for help.

During the assault, a loud noise came from outside, and Kelly left the RV to investigate. Doe took the opportunity to try to escape, dressing quickly and slipping through the door. Although she had trouble seeing in the dark, she noticed a dirt road nearby. She did not know where the encampment was located or in which direction she should travel, but when she heard Kelly's voice calling after her, she headed away from the sound. When Doe saw the lights of Kelly's car, she hid in the brush that bordered the road. Kelly yelled that Doe was his wife, and he asked why she was leaving their home. Kelly said that he would take Doe home, but "something told [her] don't go back."

Kelly eventually gave up his search, and Doe found her way back to the road. After trying unsuccessfully to hitchhike, she noticed building lights in the distance and walked toward them, ending up at a Walmart distribution center where she made contact with two employees. The employees testified that Doe appeared "extremely upset" and "scared" and told them that she had been "held against her will" and had "escaped and ran towards the lights."

The employees called the police, who interviewed Doe and took her to a hospital for a forensic examination. Doe told the examining nurse that Kelly had pulled her out of his car and raped her. Doe said that he slapped her, put his penis in her mouth and vagina, tried to put his penis in her anus, and used his saliva as lubricant. Doe reported that she was experiencing pain in her right arm from being pulled out of the car. She also reported that, earlier in the day, she had consensual sex with another man, drank beer, and smoked methamphetamine. The nurse did not observe any signs of use, such as dilated pupils or rapid speech. Doe's heart rate, blood pressure, and temperature were in the normal range. The nurse observed that Doe had bruising on her left arm, bruising and abrasions on her right arm, bruising on her left leg, and abrasions on her labia. The nurse collected DNA samples from Doe's genitals, and the criminalist who analyzed the samples found a match for Kelly's DNA in the non-sperm DNA collected from Doe's mons vulva.^[1]

When cross-examining Doe, defense counsel questioned her extensively about her prior statements to the police and her testimony at the preliminary hearing in order to show that her descriptions of the incident contained discrepancies. For example, defense counsel highlighted the fact that Doe testified at the preliminary hearing that Kelly made the statement about Doe making him "come" only once (inside the RV), whereas at trial she testified that Kelly made the statement twice (inside the car and again inside the RV). Defense counsel also highlighted the fact that Doe did not tell police that Kelly pushed her toward the RV after pulling her out of the car. When defense counsel asked Doe to admit that the first time she mentioned the push was at the preliminary hearing, Doe said that she had mentioned the push before the preliminary hearing, during a meeting with the deputy district attorney initially assigned to her case.

Doe became emotional in response to defense counsel's various impeachment attempts, and she repeatedly testified that she could not remember the details of her prior statements. Doe said that it was especially difficult to remember her statements to the police on the evening of the incident, because she was "very upset" that night. At one point, Doe became frustrated with what she perceived as nitpicking from defense counsel and expressed her intention to leave the stand, but the court persuaded her to take a break instead.

II. Defense's case

A sheriff's deputy who investigated the incident testified that although he remembered inspecting the encampment and interviewing someone there, he could not recall the details of his investigation. He also said that the deputy who had accompanied him to the encampment and prepared the police report had moved out of state.

A forensic toxicologist testified that the urine sample that Doe provided at the hospital approximately six hours after the incident tested positive for methamphetamine and that methamphetamine can be detected in urine for up to 12 hours after use. The toxicologist also testified that common side effects of chronic methamphetamine use include hallucinations, delusions, and paranoia.

Because Doe testified that she could not remember her prior statements to police or much of her preliminary hearing testimony, the court allowed defense counsel to introduce the audio recording of her police interview and portions of her preliminary hearing testimony into evidence. Although some details in her prior statements were different from her trial testimony, Doe's prior statements describing the assault were largely consistent with her trial testimony.

To impeach Doe's testimony that she mentioned the push in a meeting that took place before the preliminary hearing, defense counsel called Hanes, Doe's victim advocate, as a witness. Hanes testified that she was present at the meeting and did not recall Doe describing any case-specific facts.

III. Verdict and sentencing

The jury found Kelly guilty of forcible rape, forcible oral copulation, kidnapping to commit rape, and simple kidnapping (a lesser included offense of kidnapping to commit oral copulation). (§§ 261,...