People v. Lucas, C057593 (Cal. App. 7/15/2009)
| Decision Date | 15 July 2009 |
| Docket Number | C057593 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANDRE ZELINSKI LUCAS, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Appeal from the Super. Ct. No. P06CRF0323.
A jury convicted defendant Andre Zelinski Lucas of attempted forcible rape (Pen. Code, § 664/261, subd. (a)(2) [count I]),1 digital penetration by force (§ 289, subd. (a)(1) [count II]) and kidnapping for rape (§ 209, subd. (b)(1) [count III]) with a special enhancement finding of aggravated kidnapping (§ 667.61, subd. (d)(1) & 2)). After the court found true allegations that defendant had sustained one prior strike (§ 667, subds. (b)-(i)) and one prior prison term (§ 667.5), it sentenced him to a term of 50 years to life (count II), a consecutive sentence of life with the possibility of parole (count III), plus 14 years consecutively in state prison (count I).
Defendant appeals, claiming that the trial court erred in the exclusion of proffered expert testimony, admission of certain evidence, and instructions to the jury. He also assigns numerous alleged errors in sentencing.
We shall reverse the consecutive kidnapping conviction (count III) and kidnapping enhancement due to instructional error. In all other respects, we shall affirm the judgment.
The events of June 9 to 10, 2006
On the evening of June 9, 2006 (all further unspecified calendar dates denote that year), "Jane Doe" and her boyfriend, Ronnie Miser, went to the Hillsider Bar in downtown Placerville, where they drank for several hours. Doe drank "quite a bit" of tequila and beer and, by the time she and Miser left the bar around 1:00 a.m., she was "drunk" and "stumbling." The couple walked across the street to an art gallery. Doe was staggering and holding onto Miser for support. Doe collapsed to the ground and sat down, leaning against a window.
Just then, defendant appeared. Miser recognized him, since they had been in jail together. Miser asked defendant if he could watch Doe for a couple of minutes while Miser went across the street to try to find them a ride home. Defendant agreed.
When Miser returned, both defendant and Doe were gone. Miser frantically searched the vicinity, including a couple of bars nearby. He had just started to climb the steps of a parking garage adjacent to a pedestrian freeway overpass, when he heard Doe screaming his name. The screams were coming from the other side of the freeway. Miser ran up the steps and across the pedestrian bridge. He spotted Doe lying on her back in a grassy area at the other end of the bridge. She was "dirty and ragged." Her skirt was hiked up past her belly and her panties were pulled down about three inches, exposing her genital area. Placerville Police Officer Benjamin Scholtz described Doe as "very upset, emotional, crying and screaming."
Doe's pretrial statements and testimony
Placerville Police Officer Brody Jordan was the first officer to respond to the scene. When he asked Doe what had happened, she replied that a Black man had pulled her dress open and grabbed her breasts. She was unsure if the man had sexual intercourse with her.
Doe was transported by ambulance to Marshall Hospital, where she underwent a sexual assault examination by nurse Sheri McCall. Doe admitted to McCall that she "had a lot to drink." When asked what had happened, Doe told her she had no memory of the incident. She "just remembered that she said somebody had tried to touch her and the next thing she remembered she was calling out for her boyfriend to help her and she was on the ground." Doe said she did not know if she had been penetrated. She had no recollection of any physical force or threats, nor did she complain of any pain or discomfort.
The nurse's visual exam for sexual assault failed to disclose any redness, swelling or bruising. Swabs taken from Doe to determine the presence of sperm were negative. Swab samples taken from defendant and Doe failed to detect the transmission of DNA from one to the other.2
At trial, Doe testified that her memory of the incident stopped at the point where she sat on a bench outside the Hillsider and picked up again when she was flat on her back on the other side of the pedestrian bridge. At that point, she remembered struggling with defendant and trying to push him off her. Defendant got on top of her and she yelled "no." She screamed for her boyfriend because defendant was "in between my legs" and "raping me." Defendant finally fled when someone approached the scene.
The video and confession
Shortly after attending to the victim, Sergeant Dave Baker3 viewed a surveillance video taken by cameras mounted on each floor of the parking garage. The video was admitted into evidence, but Baker was also permitted to give his impressions of what it depicted. Baker testified that it showed two figures who appeared to be defendant and Doe entering the northeast corner of the garage. Defendant appears to be assisting Doe to keep her from falling; Doe pulls away from defendant and sits down against the wall of the garage; he crouches down in front of her, pulls her to her feet and they begin walking up to the next level; as they round the corner, "it appeared to [Baker that Doe] was attempting to push away from [defendant] and [he] pulled her back in close."
Sergeant Baker interrogated defendant between 8:00 and 9:00 a.m. that morning of June 10. Defendant initially denied having any contact with Doe other than helping to lift her to her feet. When Baker told defendant of the existence of a surveillance video, defendant admitted that he escorted Doe through the parking garage and to the other side of the overpass so she would not be arrested for being drunk in public, but again denied misconduct.
Sergeant Baker then decided to use a "ruse," telling defendant there was additional video taken from the other side of the pedestrian overcrossing. Baker suggested that it was going to be "very embarrassing" for defendant, because the video showed quite the opposite of what he had just told him. Baker told defendant that all the evidence, including DNA evidence, was "going against you," and that defendant needed to "get something going for yourself." The officer suggested that perhaps Doe was drunk and the encounter was consensual.
Defendant then changed his story, telling Baker that Doe, reeking of alcohol, had "tried to come onto" him. He said that Doe "grabbed [his]" and that he felt her up, but that was the extent of it. Baker scoffed at defendant, telling him that the video "shows there was some penetration in the vagina." Defendant then admitted putting two fingers in Doe's vagina, but denied having intercourse. After Baker again suggested the video contradicted defendant and told him he was "making it a bigger deal than it needs to be," defendant admitted that he and Doe engaged in a single act of consensual intercourse, which he described as a "quickie."
Taking the stand in his own defense, defendant testified that on the night in question, he had been awake and on methamphetamine for more than two days. He encountered Miser and Doe, who was crouched in a fetal position. Miser asked him to watch Doe while Miser went to buy drugs, and he agreed. When defendant told Doe he had some "crystal methamphetamine," she became very interested in going with him to smoke it. At her request, defendant helped Doe walk. She was grabbing and pulling him, as he helped her along. Defendant helped her walk to the top of the parking structure. At one point, he showed her his bag of crystal methamphetamine. They arrived at a spot at the end of the bridge, where they intended to do the drugs. As he lowered her to the ground, Doe grabbed his penis and he grabbed her breast. Defendant told her they should not do this, because they were only there to get high, and they let go of each other. Doe fell and started screaming. Defendant ran away because he was in possession of drugs and on parole. He could hear voices in the vicinity yelling, and "[h]e raped my girl."
When he arrived at the police station for the interview with Sergeant Baker, defendant was tired, dehydrated, and very high on drugs. His admissions of digital penetration and sexual intercourse were lies. He made these false statements because Baker tricked him into believing that if he admitted to consensual sex, he would be released.
The following chart summarizes the jury's verdict or court finding on each of the charges:
COUNT CHARGE VERDICT OR FINDING
I Forcible rape (§ 261(a)(2)) Guilty of attempted forcible rape
(§ 664/261(a)(2))
II Sexual penetration (§ 289(a)(1)) Guilty
III Kidnapping for rape (§ 209(b)(1)) Guilty
Enhancement Aggravated kidnapping (§ 667.61(d)) True
Enhancement Prior strike (§ 667) True
Enhancement Prior prison term (§ 667.5) Not true
Enhancement Prior prison term (§ 667.5) True
DISCUSSION
Prior to trial, the defense sought to introduce the expert testimony of Richard Leo, Ph.D., on the subject of false confessions and police interrogations. An Evidence Code section 402 hearing was held to determine the admissibility of his proffered expert testimony.
Dr. Leo, an associate professor of law at the University of San Francisco, has taught sociology and law, criminology and psychology. He spent the last several years studying the phenomenon of false confessions and wrongful convictions. He has published books and articles, given speeches across the country, made presentations to law enforcement groups, and has testified more than 100 times in 22 states as an expert witness on police interrogation.
According to Dr. Leo, studies of false confessions date back to 1908,...
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