People v. Valdez

• Decision Date: 14 February 1986
• Citation: 223 Cal.Rptr. 149,177 Cal.App.3d 680
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert VALDEZ, Defendant and Appellant. Crim. F003986.

Page 149

223 Cal.Rptr. 149

177 Cal.App.3d 680

The PEOPLE, Plaintiff and Respondent, v. Robert VALDEZ, Defendant and Appellant.

Crim. F003986.

Court of Appeal, Fifth District, California.

Feb. 14, 1986.

Certified For Partial Publication ^*

Review Denied May 8, 1986.

[177 Cal.App.3d 683] Michael T. Solomon, Redway, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., Gelacio L. Bayani, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

WOOLPERT, Associate Justice.

APPEAL from a judgment of the Superior Court of Kern County. William A. Stone, Judge.

Michael T. Solomon, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Robert D. Marshall and Gelacio L. Bayani, Deputy Attorneys General, for Plaintiff and Respondent.

Following jury trial, appellant Robert Valdez was convicted of rape (Pen.Code § 261, subd. (2).) ¹ The jury also found true the following enhancements: personal use of a deadly and dangerous weapon to commit the rape ( § 12022, subd. (b) ); infliction of great bodily injury in the commission of the rape ( § 12022.8); and infliction of great bodily injury upon a person 60 years or older in the commission of the rape ( § 1203.09).

Appellant filed this appeal following the court's imposition of a fourteen-year sentence consisting of eight years for the rape, five years for the section 12022.8 great bodily injury enhancement, and one year for the use enhancement.

THE FACTS

On August 16, 1983, at about 6:20 a.m., an 82-year-old woman, Ms. K., awoke in her home near the corner of Ash and Pacific in Bakersfield to find a man bending over her. The man held a knife in his hand and said, "See this knife. I will kill you, I will kill you." Although the man put a pillow over Ms. K.'s head, she was able to identify him as a Mexican of stocky build between 30 and 40 years of age and wearing dark clothing.

After voicing crude sexual overtures, appellant removed Ms. K.'s pajama bottoms and walked across the room to pull down window shades. He then returned and inserted his penis into her vagina. Ms. K. talked to the man, trying to "shame" him, but to no avail. He pulled her legs so far apart that it was painful. Again he inserted his penis into her vagina. Ms. K. twice told her assailant to stop and even offered him money to stop, but he did not relent. During that time Ms. K. smelled a strong odor of garlic coming from her attacker. The man finally threw Ms. K. face down on her bed and attacked her from the rear, forcing his penis in her vagina. The entire sexual assault lasted between 15 and 20 minutes.

The assailant fled Ms. K.'s house from the front door at about 6:40 a.m. leaving his victim in a startled, stunned, shocked and hurting state. Ms. K. then dressed, walked to her neighbor's house and called the police. She later went to the hospital where an emergency physician, Dr. Grubbs, examined her. Dr. Grubbs found three tears around the outside of the vagina, another two tears around the urethra, and two other tears inside the vagina. There was a small amount of blood inside the vagina. Dr. Grubbs characterized the amount of tears as very unusual, saying that there were more tears than he had ever seen in his experience. According to Dr. Grubbs, Ms. K. suffered "substantial short term injuries" which he expected would heal in three to four days. He diagnosed her condition as "traumatic vaginal penetration."

At about 6:20 or 6:25 a.m. on the 16th, Hussein Hussein, who operated a local market located across the alley from appellant's house, saw appellant walking fast sideways near the corner of Ash and Pacific. According to Hussein, appellant wore green clothing. During this time appellant and Hussein made eye contact at least twice. Hussein was certain it was appellant whom he saw; he had seen appellant in the market on at least 10 occasions prior to August 16. Later that morning he again saw appellant in his market. However, appellant had changed his clothes and wore dark glasses.

Around noon that same day, Kern County Sheriff's Deputies went to appellant's house. A short while later appellant drove up in a Ford automobile. When one of the officers, Rutledge, asked appellant his name, appellant said Tony Valdez. Appellant told another officer his name was Tony Lopez. Officer Rutledge found a knife under the front seat of the Ford. The length of the blade was approximately the same as the blade of the knife used by Ms. K.'s assailant.

Later on the 16th, Rutledge spoke with appellant's live-in girlfriend, Dora Hernandez, and his sister-in-law and coworker, Sylva Valdez. Hernandez told Rutledge appellant was out of the house between 5:45 a.m. and 7 a.m. that day. Valdez told Rutledge appellant worked in a garlic shed the week before the 16th and people who worked in the garlic shed smelled of garlic.

The next day Rutledge went to the victim's house. At the rear of the house the officer saw a boot print which was later photographed. Thereafter, Rutledge went back to appellant's house and, with Ms. Hernandez' permission, took appellant's work boots and booked them into evidence.

Gregory Laskowski, a criminologist for the Kern County Crime Laboratory, testified he analyzed and compared enlarged photographs of a partial boot print and heel print obtained at the crime scene with appellant's work boots. He concluded a 90-percent probability existed that appellant's left boot made the print depicted in the enlarged photographs.

Vernon Kyle, the head of the Kern County Crime Laboratory, testified from his examination of certain evidence: (a) a portion of the crotch area of Ms. K.'s panties had bloodstains and was positive for the presence of semen; (b) the crotch area of Ms. K.'s pajama bottoms had bloodstains; (c) appellant's underwear had blood and seminal stains; (d) Ms. K.'s bedsheet had at least three areas which were positive for the presence of semen; and (e) a white handkerchief which Ms. K. used contained blood and seminal stains. Further, Kyle noted Ms. K.'s blood type was type A, appellant's blood type was type O, and both Ms. K. and appellant were secretors, meaning they exhibited their blood type through their body fluids. In Kyle's opinion the seminal stain on the bedsheet came from a type O secretor and exhibited activity consistent with appellant's blood type.

Kyle concluded, from the various blood and seminal stains, appellant could not be eliminated as a contributor. He initially stated the percentage of the Caucasian population with the blood type found in the seminal stains was 6 out of 100. However, after extensive cross-examination, he testified that for the Mexican-American population, 27 out of 100 (27 percent of the population) would have the same blood type found in the seminal stains in the instant case.

Appellant, testifying on his own behalf, denied he went to the victim's residence or her backyard on the morning of August 16, 1983. He also denied he was at the corner of Ash and Pacific at about 6:40 a.m. of the same day. He testified that on August 16 at about 5:10 a.m., he drove to a telephone booth and called Sylvia Valdez to tell her he was not going to work. He testified he then went home, took off his clothes and went back to sleep.

DISCUSSION

I ²

Effective Assistance of Counsel.

II 2

Sufficiency of the Evidence to Sustain the Finding that Defendant Inflicted Great Bodily Injury Upon His Victim.

III

Motion to Exclude Witnesses.

Appellant next complains he was deprived of expert testimony because he had only one expert and wanted to use him for two purposes. First, he wanted his expert to sit by his counsel's side to assist in the cross-examination of the prosecution expert. Then he wanted his expert to testify as a defense expert witness. However, as the prosecutor prepared to call her expert, the last case-in-chief witness, she moved to exclude witnesses from the courtroom. The appearance of appellant's expert seated with his counsel motivated the prosecution's motion. While the court granted the motion to exclude, it permitted appellant's expert to remain and assist counsel in cross-examining the prosecution's expert witness. Defense counsel did not later call his expert as a witness.

Appellant raises very practical questions concerning the right of the trial court in a criminal case to exclude potential witnesses and to enforce its order if the motion is granted. Appellant argues he was entitled, as a matter of fairness grounded on Sixth and Fourteenth Amendment principles, not only to have his expert witness assist counsel in cross-examining the prosecution's expert, but also to call this same defense expert as his witness.

According to appellant, the denial of his right to call any witness who would give relevant and competent evidence infringes on his Sixth Amendment right to present a defense. In effect, appellant contends the trial court's error forced him to the Hobson's choice of having his expert witness remain in the courtroom to advise defense counsel during the cross-examination of the prosecution's expert witness or testify as part of the defense case. Finally, appellant asserts that if the trial court makes an exclusion order, it cannot enforce the order by depriving the defendant of the testimony of an important witness who remains in court after the order is made.

The exclusion of witnesses from the courtroom is a matter within the trial court's discretion. (See People v. Garbutt (1925) 197 Cal. 200, 205, 239 P. 1080; Witkin, Cal.Evidence (2d ed. (1966) § 1100, p. 1018.) Evidence Code section 777 entitled "Exclusion of Witness" provides in pertinent part that

"[t]he court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses." (Emphasis added.)

The purpose of the order is to prevent tailored testimony and aid...