People v. Robbie

• Decision Date: 12 October 2001
• Docket Number: No. A093142.,No. A088619.,A088619.,A093142.
• Citation: 112 Cal.Rptr.2d 479,92 Cal.App.4th 1075
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Walter Vincent ROBBIE, Jr., Defendant and Appellant. In re Walter Vincent Robbie, Jr. on Habeas Corpus.

112 Cal.Rptr.2d 479

92 Cal.App.4th 1075

The PEOPLE, Plaintiff and Respondent, v. Walter Vincent ROBBIE, Jr., Defendant and Appellant In re Walter Vincent Robbie, Jr. on Habeas Corpus.

No. A088619.

No. A093142.

Court of Appeal, First District, Division 3.

October 12, 2001.

As Modified October 25, 2001.

Rehearing Denied November 8, 2001.

Review Denied Jan. 16, 2002.

Office of the Attorney General, David H. Rose, San Francisco, for Plaintiff and Respondent.

Stephen Chapman Matchett, San Francisco, for Defendant and Appellant.

CORRIGAN, J.

Defendant was convicted of kidnapping for sexual purposes, oral copulation and penetration with a foreign object. Because the court improperly allowed the prosecution to elicit inadmissible profile evidence, we reverse.

Statement of Facts and Procedural History

The prosecution's witnesses gave the following recitation of events. Early on the evening of February 23, 1998, 16-year-old Jane Doe and her younger sister were at home when their mother left to attend church classes. About 15 minutes later, Jane told her sister she was going to use the telephone at the neighboring Escalante house because her own family's phone was not working. Instead, Jane walked to a neighborhood pay phone and called her boyfriend Eddie Estrada. Jane's mother had previously told Jane to have no contact with Eddie. While on the phone, Jane noticed a white truck with a camper shell parked near the phone booth and told Eddie that the driver appeared to be watching her. Eddie told her to go home and she did. Eddie corroborated this testimony at trial.

When Jane returned home, it was dusk. The lights were off and the door was locked. She walked to the Escalante house, believing her sister might be there. She noticed a white truck, similar to the one she had seen earlier, parked on the street. As Jane neared the truck, she heard footsteps behind her. Defendant grabbed her shirt and held something sharp against her back. He told her not to scream, and forced her into the truck, where she sat on the floorboard, crying. Defendant got in and started the engine. He told Jane to take off her shirt and bra, and not to scream. After five or ten minutes, defendant ordered Jane to lie on her back on the passenger seat with her head next to his thigh. At defendant's direction, she pulled her pants and underwear to her ankles. Defendant touched her breasts and placed his fingers in her vagina, commenting "nice pussy."

Jane was able to determine defendant's route of travel by looking up at street signs while he drove. Defendant stopped in a deserted, hilly area and opened the truck's tailgate. He told her to slide out of the truck, dragged her to the back and made her crawl inside the camper shell. At his direction, Jane took off all her remaining clothing. Defendant then opened his pants and got in the back of the truck.

Jane asked defendant not to have intercourse with her because she was menstruating. Defendant pulled down his pants and told Jane to orally copulate him. She gagged as she did so. Defendant became very angry because Jane was gagging and spitting. He grabbed the back of her head and told her, "Don't come off it again, or I'll kill you." Defendant rubbed a knife against her back. When defendant finally ejaculated into her mouth, Jane vomited. During the encounter he also put his tongue and finger in her vagina.

Jane told defendant that she had to urinate and he responded that she could not do so because he would not allow her out of the truck. Because Jane insisted, he told her to urinate in the truck, which she did. When Jane complained that she was cold, defendant told her she was done, throwing her pants and underwear at her. As she dressed, Jane noticed menstrual blood on her hands and thighs. Defendant then walked her to the cab of the truck. When he opened the door, her shirt and bra fell out. She grabbed them and put them on.

Defendant acted in a friendly manner during the drive back. He questioned Jane as to where she lived and worked and if she went to school. He also told her not to tell anyone what had happened or he would kill her. He dropped her off in her neighborhood, said good-bye and told her to be careful. Jane ran to the Escalante house where Lillian Escalante called the police.

Jane's 13-year-old sister Sue testified that she became worried when Jane had not returned home. After Sue went to the Escalante house, she and Lillian Escalante drove in the neighborhood looking for Jane. A short time later Jane banged on the front door, ran into the kitchen, said she had been raped, and began to wash her mouth out. Jane was so upset that Sue started to cry.

Lillian Escalante testified that when Jane came to the door she wrapped her arms around Escalante's neck and sobbed. Escalante saw blood on Jane's fingers. Jane explained that her fingers were bloody because she inserted them into herself to show defendant she was menstruating. Jane told Lillian that defendant had put a knife to her throat, forced her into a truck, and made her orally copulate him. She also told Escalante that afterwards she urinated in the back of the camper. Jane was shaking but coherent as she related these details. The police officer who responded testified Jane was visibly shaken and crying, making it difficult for him to understand her.

Less than two weeks after the incident Jane reported seeing defendant in his truck across from her house. He was subsequently arrested.

The defense case presented a dramatically different version of the incident and the complaining witness's character. Defendant testified that he had many friends in Jane's neighborhood and visited the area frequently. He often visited Debbie, a friend who lived in an apartment complex across from Jane's house. He was leaving Debbie's apartment on the evening of the incident when Jane called out to him. He had never seen her before. Jane said she wanted to talk to him about something, but was on her way to make a phone call. They arranged to meet when she finished her call, and defendant arrived while she was still on the phone. When she finished, Jane spoke to defendant, calling him by his last name. She told him she had seen him at a bar where he worked as a bouncer and also when he visited Debbie. Jane asked defendant whether he had any "crank," referring to methamphetamine. Defendant did not want sell to Jane, but agreed to give her drugs if she orally copulated and had sexual intercourse with him.

The two got in defendant's truck and drove to a construction site in the hills. Jane did not remove any clothing as they traveled, nor did he fondle her. Defendant parked in a vacant lot and they both got in the back of the truck. Jane said she did not have much time. She began orally copulating defendant, but stopped because she needed to urinate. It was cold, so defendant allowed her to urinate inside his truck. After she did so, Jane told him that she had started her period. Defendant said, "Oh, well, wait a minute. Now, this changes everything." Not wanting to have sexual intercourse with her while she was menstruating, he told her to continue orally copulating him and they would "work it out." Jane became upset and defendant ordered her to "finish." He pulled her head down to his penis and ejaculated in her mouth, after which she spit out the semen. Defendant was angry and told Jane that she had manipulated him, claiming she knew all along that she was menstruating and had not bargained in good faith. Defendant drove Jane back to her neighborhood and threw $7 at her as she got out of the truck.

The defendant called witnesses, including family members, who testified to his non-violent and honest character. Jane's former boyfriend James Pouliot and her high school classmates Alfred Williams, Amber Devos and Angela Emery described the victim as untruthful. Williams testified that Jane "lies about everybody" and lied when she told friends that her relationship with Williams ended because she would not have sex. According to Devos, Jane said that Nathan McNamar, a friend from church, tried to remove Jane's shirt while they were at the park, but Jane pushed him away. McNamar testified and denied the incident. Devos described an occasion when she saw Jane take her perfume and brush, but Jane denied doing so when confronted. Emery testified that Jane made comments about other schoolmates that were untrue. None of these witnesses testified that Jane used drugs. However, two other witnesses did speak to the subject.

Witness Mike O'Hara, who was in custody at the time of his testimony, met defendant in jail where they had "many" conversations. O'Hara testified that he and his friend Cliff had seen Jane in February 1998 loitering near the pay phone. O'Hara had never seen Jane before, but Cliff invited her to join them on a fishing trip. Jane brought along methamphetamine and smoked it with Cliff. When a defense investigator met O'Hara at the jail and showed him a single yearbook page, O'Hara pointed to Jane's photograph. The investigator acknowledged Jane's photo was the only one depicting a white teenager with light hair. Hector Urbina, an admitted heroin addict, was also in custody at the time he testified. Urbina knew defendant from his job as a bouncer. They were in custody together between August and October 1998, spoke several times and discussed the case. Urbina testified that Jane was a "dope fiend" who had tried to buy methamphetamine from him about four times.

The jury convicted defendant on the substantive charges but did not find the arming clause true. Defendant was sentenced to an indeterminate term of 15 years to life. Other terms were either stayed or ordered to run concurrently.

Discussion

Admission of Expert Testimony

Background

The prosecution intended to call Sharon Pagaling, a special agent with the California Department of Justice. During pre-trial motions, the court asked, "You are intending to call ... a ...