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Name: People v. Andrade
Case #: A135438
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 07/24/2015

Trial court did not abuse its discretion by excluding proffered third-party culpability evidence that similar police poser rapes continued to occur after defendant’s arrest. Five different women, including three who were working as prostitutes, identified Andrade as the man who lured or forced them into his car, pointed a gun at them, and raped them. He told most of the women that he was an undercover police officer, or a former police officer. DNA connected Andrade to two of the rapes. The jury convicted him of seven counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and six counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)). He appealed, raising numerous issues, including that the trial court erroneously excluded third-party culpability evidence that, after he had been arrested, there had been other reported incidents of “police poser” rapes. Held: Affirmed. To be admissible, third-party culpability evidence must link the third party either directly or circumstantially to the actual perpetration of the crime. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature. (People v. Elliott (2012) 53 Cal.4th 535, 580.) Evidence that prostitutes continued to be raped at gunpoint by police posers after Andrade was arrested did not establish a link between a third person and the crimes charged because none of the crimes shared unusual or distinctive characteristics. Prostitutes are frequently victimized, and rape by police posers is common. Even though the prosecutor argued that the attacks were “distinctive in MO” and that similar attacks had not occurred since Andrade was arrested, the trial court did not abuse its discretion by excluding Andrade’s third-party culpability evidence.

Defendant’s Sixth Amendment right to confrontation was not violated by allowing a victim to be accompanied to the witness stand by a support person. During Andrade’s trial, defense counsel stipulated that one of the victims could be accompanied to the stand by a support person. On appeal, Andrade argued that allowing the support person to accompany the witness violated his confrontation rights because the trial court failed to conduct an evidentiary hearing to determine whether a support person was necessary. The Court of Appeal determined that Andrade’s failure to object forfeited the contention citing People v. Lord (1994) 30 Cal.App.4th 1718, 1722. Furthermore, even if not forfeited, the court concluded that Andrade’s contention lacked merit. An evidentiary hearing may be necessary where the support person is also a witness at trial and there is an allegation that the support person might be exerting an improper influence on the witness. (See People v. Adams (1993) 19 Cal.App.4th 412, 434, 438.) Here, however, the record did not show that the presence of the support person had any impact on the victim’s testimony.

Trial court’s failure to instruct the jury with CALCRIM No. 358 (Evidence of Defendant’s Statements) or CALCRIM No. 359 (Corpus Delicti: Independent Evidence of a Charged Crime) was nonprejudicial error. Andrade did not request, and the trial court did not instruct the jury with, CALCRIM Nos. 358 or 359 even though many of Andrade’s extrajudicial statements were admitted during trial. On appeal, Andrade argued that the failure to give those instructions amounted to prejudicial error. The Court of Appeal disagreed. Although it reasoned that the trial court had a sua sponte obligation to give both instructions (People v. Alvarez (2002) 27 Cal.4th 1161, 1170), the court concluded that the errors were harmless under both People v. Watson (1956) 46 Cal.3d 818, 836, and Chapman v. California (1967) 386 U.S. 18, 24 because there was overwhelming evidence of Andrade’s guilt independent of his extrajudicial statements, including witness identifications, testimony of sexual assault examiners, and DNA evidence.

Where a defendant has been convicted of multiple sex offenses against multiple victims, he may be sentenced to a 15-years-to-life term for each offense committed against the same victim on the same occasion (Pen. Code, § 667.61, subd. (e)(4)). Andrade committed 13 offenses against 5 victims: 6 forcible oral copulations and 7 forcible rapes. As to each victim, the offenses were committed on the same occasion. Under the One Strike law, if a defendant commits an offense listed in section 667.61, subdivision (c) under one of the circumstances set forth in subdivision (e), he shall be punished by a 15-years-to-life prison term. (Pen. Code, § 667.61, subd. (b).) Andrade’s offenses are listed in subdivision (c) and the multiple victim aggravating circumstance set forth in subdivision (e) applied. The trial court sentenced him to 13 consecutive terms of 15 years to life. On appeal, Andrade argued that the multiple victim circumstance could only be used a maximum of five times because there were only five victims. The Court of Appeal disagreed. In People v. Valdez (2011) 193 Cal.App.4th 1515, the court rejected the defendant’s argument that the One Strike law must be interpreted so that the multiple victim circumstance can be imposed only once for each crime victim. Although there are factual differences between Valdez and this case (the defendant in Valdez committed the offenses at issue against the same victim on separate occasions, while Andrade committed his offenses against each victim on the same occasion), Andrade presented the same argument that was rejected by the court in Valdez. The current version of the One Strike law mandates that a consecutive term of 15 years to life must be imposed on each offense. (See People v. Rodriguez (2012) 207 Cal.App.4th 204, 213.) Additionally, Penal Code section 654 did not bar imposition of the 13 consecutive sentences.