People v. Villatoro

• Decision Date: 20 July 2011
• Docket Number: No. B222214.,B222214.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Jose VILLATORO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

124 Cal.Rptr.3d 477

11 Cal. Daily Op. Serv. 4384

2011 Daily Journal D.A.R. 5281Review GrantedPreviously published at: 194 Cal.App.4th 241

The PEOPLE, Plaintiff and Respondent,

v.Juan Jose VILLATORO, Defendant and Appellant.

No. B222214.

Court of Appeal, Second District, Division 8.

April 12, 2011.

Review Granted July 20, 2011.

Background: Defendant was convicted in the Superior Court, Los Angeles County, No. BA339453, William N. Sterling, J., of kidnapping, robbery, rape, and other sex crimes. Defendant appealed.

Holdings: The Court of Appeal, Rubin, J., held that:

(1) jury could consider evidence of one charged offense as propensity evidence when considering rape defendant's other charged offenses;

(2) any error by court in failing to conduct undue prejudice analysis when allowing instruction providing that evidence of defendant's guilt of one of the charged offenses could be used as evidence of his propensity to commit the other charged offenses was harmless error;

(3) instruction's use of term “conclude” rather than “infer” was proper;

(4) nurse's testimony by nurse as to results of four rape examinations did not violate defendant's confrontation clause rights;

(5) victim's preliminary hearing testimony was admissible, although victim was present in court;

(6) any error in admitting, as prior consistent statements, victims' statements to police officer and detective was harmless; and

(7) testimony was sufficient to support finding that stun gun was a “deadly or dangerous weapon” for sentencing purposes.

Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

RUBIN, J.

Juan Jose Villatoro appeals from the judgment entered after a jury convicted him of various counts of kidnapping, robbery, rape, and other sex crimes he committed against five women over a three-year period. We reject his claims of instructional and evidentiary error, and also conclude that his use of a stun gun to commit some of the crimes was sufficient evidence that he used a deadly or dangerous weapon. We therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Five women accused Juan Jose Villatoro of kidnap, robbery, rape, and other forcible sex crimes.

R.I.

R.I. was a prostitute who got into Villatoro's Honda Civic at around 3:00 a.m. on May 25, 2005, after agreeing to have sex with him for $80. After driving to a nearby residential area, Villatoro stopped the car, pulled out a gun, and told R.I. he would kill her if she moved. Villatoro forced her to have vaginal and anal intercourse, then whipped her on the back for about 20 minutes with some electrical extension cords. Villatoro took R.I.'s cell phone, and then told her to get out of the car. He did not pay her.

Later that morning, a Los Angeles police officer was called to Centinela Hospital to conduct a rape investigation. When he arrived, R.I. was being treated for injuries to her back. She told the officer what had happened.

A nurse conducted a rape exam of R.I. She had numerous bruises on her back, along with bruising on her vagina, and swelling in her legs. These wounds were consistent with R.I.'s account of the attack. DNA samples taken from R.I. were later found to match Villatoro's DNA.

About two months after the incident, R.I. identified Villatoro from a photographic six-pack lineup.

N.G.

Between midnight and 1:00 a.m. on June 21, 2006, 18–year–old N.G. was walking home when Villatoro drove up in a white Honda, pointed a gun at her, and said he would kill her unless she got into his car. N.G. got in the car, and Villatoro drove off. He held a razor to N.G.'s ribcage as he drove. Villatoro stopped the car in a residential area, then had vaginal intercourse with N.G. and inserted his fingers inside her vagina. Villatoro took N.G.'s cellphone, rings, and sunglasses, and then let her go.

N.G. ran for help and the police were called. When Los Angeles Police Officer Alonzo Howell arrived at the location, N.G. was crying and screamed that she had been raped. Nurse Sally Wilson performed a rape exam. Wilson said that N.G.'s body bore marks that confirmed her story. DNA swabs taken from N.G. were later determined to match Villatoro's DNA. Almost two years later, N.G. identified Villatoro from a photographic six-pack lineup.

N.G. testified that she became a prostitute a few months after she was raped, but denied that she was working as a prostitute when Villatoro approached her.

Beverly G.

At around 2:30 a.m. on February 3, 2008, after some unsuccessful haggling by Villatoro, prostitute Beverly G. agreed to have sex with Villatoro for $100. She got into Villatoro's car, which she first described as a burgundy colored Stratus, but later recalled was a Dodge Intrepid. Villatoro stopped the car in a residential area after driving a short distance, and then pulled out a stun gun. Villatoro activated the device so that it began to spark at the delivery end, and told Beverly not to move. He put the stun gun against Beverly's neck and screamed at her, “Don't look at me.” He had both vaginal and anal intercourse with her. Whenever Beverly would look at Villatoro, he slapped her or spat at her.

When Villatoro was done, he told Beverly to get out of the car. He did not pay her. Beverly phoned her boyfriend for help. The boyfriend took her to a hospital, but she lied to the police about what happened because she had outstanding warrants for prostitution. No rape exam was performed, and therefore there was no DNA to test.

Beverly eventually told the police what happened, and in May 2008, she identified Villatoro from a photo lineup. In early 2009, Beverly found internet photos of Villatoro that caused her to remember that Villatoro had raped her once before, in 2007. During that rape, Villatoro carried pepper spray. She did not make the connection before then because the lineup photo and the internet photo differed and because Villatoro used different cars during each incident. Beverly did not report the 2007 rape when it occurred because of warrants that were out for her arrest.

C.C.

At around 2:45 a.m. on February 10, 2008, Villatoro offered a ride to C.C., who was waiting at a bus stop. Because another man had been harassing her, C.C. accepted and got into Villatoro's burgundy Intrepid. C.C. asked Villatoro to drive her to Hollywood. When she noticed they were in Santa Monica, she became nervous. She asked Villatoro to stop so she could use a restroom. Villatoro pulled the car over, handed C.C. some baby wipes, and told her to relieve herself in the grass. Villatoro watched as she did so.

When Villatoro promised to take her home, C.C. got back inside the car. Villatoro then pulled out a stun gun, triggered a spark from the delivery end of the weapon, and placed it near C.C.'s throat. He told C.C. to take off her pants, and she complied. He told her not to look at him, punched her in the face, and ordered her to cover her head with her shirt. Villatoro had vaginal intercourse with C.C., and also bit her left breast and nipple and pulled out some of her hair.

Villatoro told her to get out of the car. She did so, and then ran to get help. Santa Monica Police Officer Michael Chun arrived, and saw that C.C. was crying. She told Chun what Villatoro had done to her. C.C. was given a rape exam. The nurse who performed the exam found a bite mark and a suction injury on C.C.'s left breast. The physical findings were consistent with C.C.'s account of the incident. DNA samples taken from C.C.'s body were later found to match Villatoro's DNA.

C.C. helped the police create a composite drawing of her attacker, and in April 2008 identified Villatoro from a photo lineup. C.C. admitted that she worked as a prostitute a few years before the incident, but denied that she was doing so when she encountered Villatoro.

Kimberly J.

At around 3:00 a.m. on April 4, 2008, prostitute Kimberly J. agreed to get into Villatoro's car, which she described as burgundy Dodge. They drove for a few blocks, when Villatoro stopped the car on a dark street, told her, “Shut up or I'm going to kill you,” and pulled out a stun gun. Villatoro turned the stun gun on and off a few times in order to scare Kimberly. He told her to turn around and to not look at him. He ripped off Kimberly's underwear and had vaginal intercourse with her. During the rape, he again told her to not look at him. When Villatoro finished, he took Kimberly's cell phone and jewelry and told her to get out of the car. He tried to place the stun gun against her, but she jumped out before he could do so.

Kimberly ran for help and eventually located friends who took her to a Los Angeles police station to report the rape. Kimberly was taken to a hospital for a rape examination, which was performed by Sally Wilson, the nurse who did the rape test on N.G. Wilson saw vaginal bruising, and the hymen had an abrasion and appeared to be tender. These findings were consistent with Kimberly's account. DNA samples were taken and later testing showed that these samples also matched Villatoro's DNA.

Kimberly helped the police prepare a composite drawing of her attacker, and she too identified Villatoro from a photo lineup.¹

A. Additional Prosecution Evidence

A crime alert bulletin was issued to police officers that included a description of the man who attacked all five women, and his burgundy Dodge Intrepid. On April 19, 2008, a Los Angeles police officer spotted a burgundy Intrepid that matched the description. Because the windows had an illegal tint, the officer stopped the car. Villatoro was the driver. The officer saw that Villatoro matched the description of the rapist given in the bulletin, as well as the composite drawings. Villatoro produced a California...