P. v. Villatoro 4/12/11 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B222214

Case Date: 07/25/2011

Preview:Filed 4/12/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE VILLATORO, Defendant and Appellant. B222214 (Los Angeles County Super. Ct. No. BA339453)

APPEAL from a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. 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.

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

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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 Villatoros 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 Villatoros 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 Beverlys neck and screamed at her, "Dont 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.

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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 Villatoros 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.

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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 Villatoros 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 Villatoros 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 Im 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 Kimberlys underwear and had vaginal intercourse with her. During the rape, he again told her to not look at him. When Villatoro finished, he took Kimberlys cell phone and jewelery 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 Kimberlys

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account. DNA samples were taken and later testing showed that these samples also matched Villatoros 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 identification card with the name Juan Estrada Villalobos. After learning that there was a felony arrest warrant out for someone with that name, the officer arrested Villatoro and ascertained his real name. A later search of Villatoros car turned up a box of baby wipes, a condom, a bottle of perfume, three bracelets, an earring, a box cutter, and one acrylic fingernail. The police later searched the laundromat where Villatoro once worked. They spoke with employee Michael Cross, who said that when Villatoro was still working at the laundromat, he noticed that Villatoro had a stun gun. Villatoro offered to buy one of the same model for Cross for $40, and a few days later did so. The police seized the stun gun from Cross. Printed on the side was the

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Kimberlys story came into evidence by way of her testimony at Villatoros preliminary hearing after the trial court found that her refusal to testify at trial made her unavailable as a witness. The admissibility of her testimony is at issue on appeal, and we discuss it below.

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following: "Storm Stun, the worlds smallest stun gun, warning, extremely dangerous, keep out of reach of children." John Wong, a Los Angeles police detective assigned to the case, testified about stun guns, which he said produce an electrical charge. When applied to a persons body, a stun gun causes pain, involuntary muscle contractions, loss of body control, disorientation, loss of balance, and extreme fatigue. Police officers are trained to avoid using a stun gun near the face, neck, eyes, chest, or breasts. The weapon can cause heart attacks, burns, scarring, and central nervous system injuries. The stun gun obtained from Cross states that it put out 950,000 volts, while taser guns used by Los Angeles police officers put out only 50,000 volts. B. Defense Evidence Defense expert witness Larry Smith testified that, based upon his own research, the use of a stun gun of the type recovered in the case had not caused serious injury or death. He also reached the conclusion that the device could not cause any permanent harm after reading the literature in the field. Smith acknowledged that certain types of contact with a taser could cause various forms of physical reaction including pain. He also stated that he personally had a painful experience with a taser that left a burn mark for a week. He would not stun himself on certain areas of the body or under certain conditions for fear of serious injury. C. Verdict and Sentence A jury convicted Villatoro of five counts of rape, one each as to the five victims. He was also convicted of: one count of kidnapping to commit another crime as to N.G; and four counts of robbery, one each as to N.G., Beverly G., C.C., and Kimberly J. The jury found true allegations that Villatoro: (1) personally used a firearm during the rapes of R.I., N.G., and during the kidnap and robbery of N.G.; and (2) personally used a deadly or dangerous weapon as to all 7

five rapes and as to the robberies of C.C. and Kimberly J.2 The jury acquitted Villatoro of one count of sodomy by force against Beverly G., and of one count of rape as to Beverly G. in connection with her claim that Villatoro had previously raped her in 2007. Villatoro received a combined prison sentence of 153 years to life. On appeal, Villatoro contends: (1) a modified version of CALCRIM instruction No. 1191 improperly allowed the jury to use evidence of his guilt of one of the charged offenses as evidence of his propensity to commit the other charged offenses; (2) the CALCRIM No. 1191 instruction violated his constitutional rights because it misinstructed the jury on the burden of proof; (3) the propensity inference instruction violated his constitutional due process and equal protection rights; (4) the testimony of an expert witness about rape exams performed by other persons violated his constitutional right to confront and cross examine adverse witnesses; (5) the court erred by finding one of his accusers was unavailable to testify, thereby allowing in evidence her preliminary hearing testimony; (6) investigating police officers should not have been allowed to give hearsay evidence of statements made by some of his accusers; (7) the reasonable doubt instruction given to the jury was defective; and (8) there was no evidence that the stun gun he used on two of his victims was a deadly or dangerous weapon for purposes of a sentence enhancement.

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Other allegations were charged and found true, but they are not relevant to the issues on appeal.

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DISCUSSION 1. The Modified CALCRIM No. 1191 Instruction on the Use of Propensity Evidence Was Proper A. Background Concerning Propensity Instructions

As a general rule, evidence of a persons character or character trait is not admissible to prove that persons conduct on a specified occasion except when offered as impeachment evidence, or to show some fact such as motive, intent, plan, or identity. The evidence may not be admitted to show the persons disposition to commit a criminal act or civil wrong. (Evid. Code,

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