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Name: People v. Dejourney
Case #: D055585
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/17/2011

Under Evidence Code section 1108 prior similar sexual misconduct may be introduced to show a defendant’s propensity to commit offenses of the same type, subject to a weighing of the evidence under Evidence Code section 352. A jury convicted appellant of forcible rape and kidnapping. At trial, the victim testified that she suffers from cerebral palsy and has physical, developmental, and cognitive or mental disability. On the date in question, after obtaining money from an ATM, she was approached by appellant who put his arm around her, and walked her to various locations at a pace she could not control. After several trolley rides and a bus ride, he forced her into a secluded location and raped her. She was afraid of him but did not call out to others as she was too scared. Evidence was also presented that appellant had sexually assaulted a homeless woman in an abandoned house several years earlier. Evidence Code section 1108 allows evidence of other sexual offenses in cases charging such conduct to prove a defendant’s disposition to commit the charged offense. The introduction of prior conduct is subject to the constraints of Evidence Code section 352. Here, at a 352 hearing, the trial court found that although the prior and instant offenses were not identical, they were similar. In both cases, appellant exploited the vulnerabilities of his victim and committed similar sex acts. The court further found that the potential remoteness between the two cases was dispelled by the time appellant had spent in prison. There was nothing about the cases which would cause the jury confusion because the evidence of each crime came from independent sources. And any inflammatory effect from the prior conduct was not unduly prejudicial. Thus, the appellate court found that the trial court’s ruling permitting introduction of the prior conduct was not an abuse of discretion.
An expert may testify why a developmentally disabled person, when confronted with danger, would not seek assistance. At trial, the expert gave her opinion as to why a developmentally disabled woman would not seek assistance in response to a perceived threat. Generally, expert testimony is limited to an opinion that is related to a subject beyond the experience of the trier of fact. Here, the appellate court ruled that it was not an abuse of discretion to permit the expert to testify. Prior to the testimony, the court reviewed the witness’ qualifications and narrowed the scope of permissible testimony as to the reasons a person with developmental disabilities would not seek assistance when faced with a perceived danger–this is an area that is beyond the range of general knowledge of a juror and expert testimony would provide acceptable assistance.
In evaluating the issue of consent in the offense of kidnap, the jury may consider the developmentally disabled victim’s demeanor as she testifies. Appellant claimed that there was insufficient evidence presented that he threatened the victim or used force to move her from one location to another, such that the kidnapping conviction was not supported. The court found the evidence was sufficient. From the initial contact, appellant had his arm around the victim and she was “frozen inside [her] head and [she] was too scared” to call out to others in proximity. He walked her at a pace faster than her condition allowed. She did not want to go to the isolated location as he walked her there with his arm around her and she cried and moaned when he raped her. The victim’s limitations were obvious to the jury just from watching her testify. Thus, the evidence, in its entirety, was sufficient to support the kidnapping conviction even if the victim testified that appellant made no verbal threats toward her.