P. v. Ardds

Filed 7/27/07 P. v. Ardds CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Antoine Ardds appeals from the judgment below. We reverse his conviction on count one as both defendant and the Attorney General request, and affirm the judgment in all other respects.

Background

In June 2005, the Alameda County District Attorney filed an amended information charging defendant with 16 counts (and making certain related special allegations) of alleged sex crimes, including forcible rape, in two different incidents, the first in 1997, against Diane Doe and the second in 2003, against D. Doe and A. Doe.

Before the trial, defendant moved to sever counts one and two, relating to the 1997 incident, from the other charges, which motion the court denied. Defendant also moved to exclude other crimes evidence from trial, which motion the court granted in part and denied in part, allowing in evidence of a 1999 incident for which defendant was convicted of one count of battery causing serious bodily injury, leading to a three-year state prison term. The prosecutor dismissed three counts to conform to proof in the midst of the July 2005 trial.

The jury found defendant guilty of all but one of the counts for which he was tried, and found the special allegations to be true. Following the jurys verdict, the court allowed the prosecutor to dismiss prior prison term and, later, separate occasions allegations. Defendant waived his right to a jury on the prior conviction allegations.

The court sentenced defendant to a determinate term of 13 years and eight months in prison in addition to several concurrent indeterminate terms, and a term of 25 years to life in accordance with Penal Code section 667.61. The court granted the prosecutors motion to strike the Penal Code section 667, subdivision (d) allegations made regarding nine of the counts, and modified the sentence accordingly. The court corrected defendants sentence by imposing base terms for the indeterminate sentences, which it stayed. Defendant later filed a timely appeal.

The 1997 Incident

The prosecution contended defendant attacked and raped Diane Doe in the early morning hours in Oakland, California, in 1997. Defendant was arrested some years later as the result of a DNA analysis.

Diane Does Testimony

Diane, 44 years old at the time of the trial, testified that she lived with her husband and three children in Oakland in June 1997. She went to a friends house on the evening of June 19, where she and three other women played dominoes, drank, [and] got high on crack cocaine throughout the night. At the time, she used crack cocaine twice a week and had been a drug user for about 10 years.

Early the next morning, as Diane walked home alone, a man grabbed her from behind, choking her so she could not speak, and dragged her about a block to a more secluded dirt area, where he beat and raped her. She fought with him, and lost and regained consciousness, as he continued to rape her until he jumped up and ran away.

Diane testified about a taped statement she made with the police in 1997, soon after this assault. She acknowledged she lied in the interview when she said she had run around the lake, and had talked to a homeless man and a woman prior to the attack. She was ashamed of her drug addiction and in denial about it, wanted to protect her family, did not feel what she was doing before the attack was anybodys business, and did not want the police to find her assailant because she did not want him to come back and finish me up. She told the police she had some alcohol and a little marijuana the night before, but did not mention the crack cocaine.
In her 1997 police interview and at the 2005 trial, Diane said her assailant was an African-American male, and had dark red hair,[1] a natural hairstyle and chipped front teeth. She also told the police in 1997, that he was five feet seven inches tall with a medium build, although defendant was, as indicated post, six feet three inches tall. She testified that she never had consensual sex with defendant. She also was unable to identify him as her assailant in a 2004 lineup or at trial.

After the assault, Diane and her family moved to Sacramento because she was afraid. Her husband left her about 15 months later because Diane had nightmares and would not let him touch her. Diane returned to the Bay Area and continued using drugs and alcohol. Whenever she thought about the rape she blamed herself, and would use more drugs and alcohol until she passed out in order to forget about it. When the police contacted her in 2003, about the assault, she could not recall the incident; she later underwent therapy to regain her memories. She continued to use drugs and alcohol until she entered recovery about 14 months before she testified at trial.

Physicians Assistants Testimony

A physicians assistant, who was a forensics examiner, head of the sexual assault response team (SART) at the hospital, and an expert in sexual assault examinations, examined Diane for two hours after she was admitted at the hospital the same morning as the assault. Diane told her she had been assaulted by an African-American male with reddish hair, had been strangled, and had been beaten on her face and raped; she also admitted to heavy alcohol and crack cocaine use. She had a contusion on the left side of her face, difficulty swallowing, neck pain, cuts on her feet, hemorrhaging in her eardrums consistent with strangulation, broken blood vessels in her eyes, and swelling around her nose and one eye. There were no gross abrasions in her vagina or cervix, but there were numerous sand and dirt particles near her vagina, rectum, and anus. Swabs of her vaginal and rectal areas revealed non-motile sperm. Diane was admitted to the transitory care unit, one of only three percent of sexual assault cases so treated, and discharged three days later.

Police Investigation

In late July 1997, a police officer encountered defendant about a mile from the assault and noted he was an African-American man, 26 years old, six feet three inches tall and weighed 190 pounds, with red hair and a moustache.

A forensic DNA analyst testified that in May 2003, evidence relating to Dianes rape was analyzed as part of the DNA Cold Hit Program. Sperm from Dianes vaginal swab yielded an unambiguous DNA profile, which made it clear it was from a single source, a DNA profile from a male individual. The profile matched that of defendant, by then a convicted offender, in a Department of Justice database. The analyst confirmed the match after obtaining a fresh DNA sample from defendant. She testified that this DNA profile occurred in one out of 608 quadrillion people.

The 2003 Incident

The prosecution also contended defendant sexually assaulted D. Doe and A. Doe in 2003.

Testimony by A. Doe and D. Doe

A. and D. testified that they were close friends. A. was engaged to, and sexually active with, Jermaine R., D.s brother; D. was sexually active with a boyfriend, Melvin M.

On the evening of September 6, 2003, D. and A. went to an Oakland dance club called Sweet Jimmies. According to A., D. was interested in finding a new boyfriend, which D. denied at trial. On their way, A. had some marijuana and wine cooler; although D. denied it, A. recalled D. had a little of each too.

The women met defendant at the club and danced with him. He seemed to be interested in D., who thought he was nice. The three left the club and went to a store to buy a few things, and defendant suggested they go to his car and smoke marijuana. The women accompanied him on a long walk to an RV and waited as defendant retrieved a key for the vehicle from a nearby apartment. Once in the RV, they talked and the women smoked marijuana and drank wine coolers. D. had spoken to Michael M. on her cell phone during the walk to the RV, and now received a call from Jermaine. The women told defendant they were going to leave. When they declined his offer of a ride home, defendant pulled out a handgun from under a bed and told them to remove their clothes. D. at first refused, complying only after defendant repeated his demand while putting his gun to her head and threatening to shoot her.

Defendant orally copulated both women, ordered each woman to orally copulate him (D. could not recall whether or not she did so), ordered them to orally copulate each other, and ordered A. to kiss D. and rub her breasts. The women did as they were told (although A. faked orally copulating D.). Defendant vaginally penetrated each woman, ejaculating inside each of them. He insisted D. urinate into a bucket after he ejaculated inside her. Defendant vaginally penetrated the women more than once. When he penetrated A., he told her she had gotten his friend locked up and had run away with his money. A. did not know what he was talking about. Defendant ordered A. to lay on top of D. while he attempted to sodomize A., but his penis did not fully penetrate her anus. Each woman testified she did not consent to the sex, but complied out of fear because of the gun.

Defendant allowed the women to leave the RV early that morning, apologized as he accompanied them to a bus stop, and told them not to call the police. On their way home, the women decided to lie and say they were ordered into a car by two men with a gun because they were scared, and worried about how their boyfriends and families would react to the truth. They agreed to tell the truth about what happened in the RV.

When they arrived home, their boyfriends and families were upset with the women, even after they told their story. The women walked to Summit Hospital, where A. told police their story. The women were taken to Highland Hospital for sexual assault examinations. A. identified defendant as their assailant when he was brought to the hospital, and later showed police the RV.

D. admitted she had lied to the police and at the preliminary hearing about two men picking them up, but was telling the truth at trial. A. testified she too had lied to the police, for fear the case would not be pursued if she admitted they had voluntarily gone to the RV.

A. said she was seeing a psychologist and taking anti-depressants. She felt disgusted with men and could not have sexual relations with her fianc for a year. D. testified that she had seen many counselors and could not have sex for a long time after the attack.

The Sexual Assault Examinations

A physicians assistant, a member of Highland Hospitals SART and an expert in sexual assault examinations, testified about her examinations of A. and D. A. told the physicians assistant she had engaged in consensual vaginal intercourse and oral copulation two days before. She said she had been sexually assaulted around midnight the night before by an unknown African-American male in his twenties who had a gun and told her, Ill blast your head off if you dont shut up. The man had penetrated her vagina and anus and ejaculated in her vagina, they had orally copulated each other, and he had kissed her lips and breasts.

The physicians assistant observed A. had injuries in her vaginal area, specifically a tearing of her fossa navicularis and posterior fourchette, areas where a woman who resists a sexual assault is more likely to have tearing. A. also had bruising and redness in her cervix. The physicians assistant did not perform an anascope in A.s rectal area because it was too difficult. She observed non-motile sperm on a slide taken from a vaginal swab. She concluded that the results of her exam were consistent with the history A. provided.

D. told the physicians assistant she had last engaged in consensual vaginal intercourse and oral copulation two days before. She said she had been sexually assaulted early that morning by an unknown African-American male in his twenties who had threatened her with a gun to her head and said, Ill blast your head off if you dont shut up, had penetrated her vagina with his penis and ejaculated, had demanded they orally copulate each other, and had kissed her lips and breasts.

The physicians assistant did not find any deep tears in D.s vaginal tissue, but found two to three millimeter nonspecific TB uptake with tenderness and slight erythema.[2] She also noticed some pooling of a white liquid substance at the posterial vaginal vault.

The Police Investigation

Police officers testified they found defendant inside the RV the same morning the attacks were reported and arrested him. Defendant lied about his name, and his appearance matched the description of the suspect as having loose braids, bad teeth, a jacket, and dark pants. The police did not find a gun in the RV. Both A. and D. promptly identified defendant as their attacker in a field lineup.

A DNA analyst testified that D. could not be eliminated as a major donor of DNA found in epithelial cells taken from defendants penis. D., her boyfriend, and defendant could not be eliminated as sources of DNA found in sperm cells taken from D.s vaginal swab and in epithelial cells found on her underwear. Defendant was the clear major donor of sperm cells found in the underwear.

Defendant also could not be eliminated as the major donor of a sperm fraction found on the outside of A.s underwear. A swab of A.s left breast showed a mixture of epithelial cells of A. and D., and defendant could not be eliminated as a source.

Testimony of the Sexual Assault Expert

An expert in sexual assault and rape trauma syndrome testified that rape trauma syndrome has three phases: (1) the acute or crisis phase, (2) the Im fine phase, and (3) the Im going crazy phase. The first typically lasts two weeks to two months. Among other things, victims sometimes initially lie to law enforcement until they develop a trust. Most of the dishonesty involves the beginning portions of the incident that do not involve the assault itself. Victims fear retaliation, blame, not being believed, and getting in trouble. In the Im fine phase, victims commonly repress or block out memories of the assault. In the Im going crazy phase, they address their emotions and feels more in control, but not every woman reaches this final phase.

The 1999 Incident

K. Doe, 22 years old at the time of trial, testified that in January 1999, when she was 15, she and a 13-year-old girlfriend met defendant in downtown Oakland. Defendant paid to wash their clothes at a laundromat, and led them to a motel room where he said they could shower. When K. saw defendant was actually trying to break into the room, she and her friend went downstairs to a public restroom; defendant entered the restroom and punched both girls in their faces, knocking out K.s three front teeth. K. fell and started to bleed and cry.

Defendant ordered the girls to remove their clothes and had sexual intercourse with her friend. Defendant forced K. to orally copulate him. She told him she had a sexual disease, and he did not attempt intercourse with her. Eventually defendant had the girls walk him to Sweet Jimmies, where he let them go.

K. initially lied and told her brother she had fallen on some metal because she had just run away, but ended up telling her mother about the attack. She told police about defendants sexual intercourse with her friend, but not that she was forced to orally copulate defendant.

A couple of months later, K. pointed out defendant to police on the street. She later learned he pled guilty to assaulting her and was sentenced to state prison.

In a 1999 interview with police, defendant said he slapped both girls because they had concealed they actually had money to pay for their laundry. K. was already missing a tooth, and fell against a sink when he hit her, knocking out two others. He had consensual sex with K.s friend only after she offered to do so, essentially to pay him back for the money he had spent on them, and he was ignorant about her young age.

Defendants Case

Defendant only presented one witness, the owner of the RV, whose testimony was inconsequential to the issues of this appeal. His trial counsel, as suggested in his cross-examinations and/or stated in his closing argument, contended Diane had forgotten she had consensual sex with defendant in return for drugs before she was physically attacked by another person, and insisted A. and D. had lied about their consensual sex with defendant to avoid their families and boyfriends wrath. Defense counsel relied heavily on the victims admitted lies to police in making his arguments.

Discussion

I. Admission of Evidence Regarding the 1999 Incident

Defendant argues the trial court erred by admitting the evidence of the 1999 incident, involving K. Doe, because this evidence was overly prejudicial pursuant to Evidence Code[3] section 352, and thereby violated his due process rights under the United States Constitution. This argument lacks merit.

The prosecutor sought by motion in limine to introduce evidence at trial that defendant had raped and robbed a 26-year-old woman with hearing and speech impairments after encountering her on a West Oakland street in 1997, contending the case was not prosecuted because no signs of definite trauma were found in the course of her sexual assault examination. The prosecutor also sought to admit evidence of the 1999 incident, involving K. Doe. The prosecutor argued the evidence was relevant to show a common scheme or plan in attacking A. and D., and admissible pursuant to sections 1101, subdivision (b) and 1108. Defendant sought to exclude the evidence as prejudicial pursuant to section 352.

The trial court excluded the evidence about the 1997 incident, but admitted that regarding the 1999 incident under the Evidence Code sections cited by the prosecutor, stating, among other things, that the evidence falls squarely within an 1101(b), because it shows somewhat of a common plan. The court further found that because defendant had already been convicted, there would not be an undue consumption of time at trial or prejudice of the jury.

We follow an abuse of discretion standard in reviewing the trial courts ruling. (See People v. Mullens (2004) 119 Cal.App.4th 648, 658; People v. Harris (1998) 60 Cal.App.4th 727, 736.)

Section 1101, subdivision (a), generally prohibits using character evidence to prove a defendants conduct. However, its subdivision (b) provides an exception to this rule, allowing admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact. ( 1101, subd. (b).) Evidence of previous uncharged acts is admissible to prove a common design or plan, such as when the similarity between the circumstances of the prior acts and the charged offenses supports the inference that defendant committed the charged offenses pursuant to the same design or plan defendant used to commit the uncharged misconduct. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)

In 1995, the Legislature enacted section 1108 to allow the use of disposition or propensity evidence in sex offense crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Section 1108, subdivision (a) provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. (See  1101, subd. (b).)

The Legislature intended to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that propensity evidence is per se unduly prejudicial to the defense. (People v. Falsetta, supra, 21 Cal.4th at p. 911.) [T]he Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumably admissible without regard to the limitations of . . . section 1101. [Citations.] The only restrictions on the admissibility of such evidence are those contained in . . . section 352. (People v. Yovanov (1999) 69 Cal.App.4th 392, 405-406.) However, [r]ather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917.)

Both defendant and the Attorney General focus on the factors for evaluating the admissibility of prior sex offense evidence articulated in People v. Harris, supra, 60 Cal.App.4th 727, they being the inflammatory nature of the evidence; the probability of jury confusion; the remoteness of the other offense; the consumption of trial time; and the probative value of the evidence. (Id. at pp. 737-740.) Defendant argues there was a risk that jurors would find the evidence of the 1999 incident sufficiently inflammatory to distort its view of the 2003 incident, and that the girls involved in the 1999 incident were so young, defendants violence so wrenching, and his state prison term so short that admission of the evidence created a significant risk this jury would have been more inclined to convict him of the 2003 charged offenses in this case because of the jurys belief he was not sufficiently punished as to the 1999 incident. We do not agree.

While we do not close our eyes to the disturbing aspects of K.s testimony about defendants actions in 1999, or the young age of the girls involved, the evidence of the 1999 incident is not so assuredly inflammatory or confusing as to cause us to override the trial courts exercise of its discretion. The evidence of the 2003 incident arguably was very disturbing by itself to consider, since it involved the use of a deadly weapon, the rape of both victims, and a continual sexual assault over a lengthy period of time. We also agree with the trial courts assessment that the evidence of the 1999 incident was highly probative because of several striking similarities between the incidents. In both cases, defendant befriended a pair of females and spent some time with them (dancing with A. and D. and going to a store with them; accompanying K. and her friend to a laundromat and helping clean their clothes); lured his victims to a more private place with promises of further assistance (to provide marijuana to A. and D.; to give K. and her friend a safe place to shower), threatened or used violence when his victims tried to leave him (threatening to shoot A. and D.; punching K. and her friend), sexually assaulted his victims via vaginal penetration and oral copulation; and ultimately let them go. Also, both incidents occurred within walking distance of the Sweet Jimmies dance club in Oakland, to which defendant gravitated in both cases. There is a sufficient degree of similarity in defendants actions to show a common design and plan, and to overcome any prejudice caused by admission of the 1999 incident evidence. (Compare People v. Harris, supra, 60 Cal.App.4th at p. 740 [finding prior and current offenses were not sufficiently similar].)

Furthermore, the evidence of the 1999 incident had particular probative value pursuant to section 1108 in light of the defense attack on the credibility of the victims in the charged offenses, a key issue at trial. Each of the victims initially had lied about events leading up to the sexual assault. The jury was entitled to know about defendants prior acts to assess his propensity to commit the charged offenses. (See People v. Falsetta, supra, 21 Cal.4th at pp. 911-912 [our  Legislature has determined the need for this evidence [of uncharged sex offenses] is critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial [citations]].) The record also demonstrates the trial court exercised its discretion carefully, excluding the evidence of a 1997 incident so as to limit the evidence of uncharged offenses presented to the jury.

Defendant also argues the use of section 1108 to admit the disputed evidence violated defendants state and federal due process rights. Defendant acknowledges our Supreme Court has found that the statute does not violate the constitutional guarantees of due process because it preserves the trial courts discretion to exclude the challenged evidence if its prejudicial effect outweighs its probative value. (People v. Falsetta, supra, 21 Cal.4th at p. 907.) We are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

In short, the trial court properly exercised its discretion in concluding that the evidence was admissible under sections 1108 and 1101, subdivision (b).[4]

II. Contested Jury Instruction

Defendant argues that the trial court erred in instructing the jury, over defendants objection, about how the jury could use the evidence admitted, thereby violating his Sixth and Fourteenth Amendment rights to a reliable jury determination of the charges and to due process of law. Defendant specifically challenges the following paragraphs of the instruction given, CALJIC No. 2.50.01:

If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he/she] was likely to commit and did commit the crime [or crimes] of which [he/she] is accused.

However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he/she] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.

Defendant acknowledges that our Supreme Court has approved this instruction in People v. Reliford (2003) 29 Cal.4th 1007, and that we must follow the courts ruling. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Accordingly, defendants argument lacks merit.

III. Motion to Sever Counts One and Two

Defendant argues the trial court abused its discretion in denying his motion to sever counts one and two, regarding the 1997 incident, from the remaining counts involving the 2003 incident. He also contends that, in retrospect, the joinder of the offenses violated his constitutional right to a fair trial and due process of law, requiring reversal of his convictions. This argument is without merit.

Before trial, defendant moved to sever the charges. He contended the evidence supporting the charges was not cross-admissible, the 2003 evidence was weaker than the 1997 evidence, and the   spillover effect of aggregate evidence  of his rape of Diane endangered his right to a fair trial. The prosecution opposed the motion, noting there were some discrepancies, no doubt, in the witnessess statements [referring to those made by A. and D.] to the police and their testimony during the preliminary hearing, and those create factual problems . . . , but it is an event involving two witnesses who saw [defendant] rape each other essentially and can corroborate each others testimony as to what took place. [] In addition, when the victims went to the hospital, they underwent SART exams, which revealed tearing to both witnesses, consistent with their allegations of rape. The prosecution also argued the evidence of the two incidents was cross-admissible pursuant to section 1108.

The court declined to rule on the cross-admissibility issue. It denied the motion to sever because Penal Code section 954 allows joinder of charges for the same classes of crimes, as was evidently the case here, the Legislature placed priority on judicial economy and efficiency, and any issues would be dealt with by instructing the jury to determine each count separately.

We review the trial courts ruling on the motion to sever for an abuse of discretion. (People v. Ochoa (2001) 26 Cal.4th 398, 423.)

Penal Code section 954 states in relevant part: An accusatory pleading may charge two or more different offenses . . . of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. (Pen. Code,  954.)

Penal Code section 954 allows the trial court to exercise its discretion to sever the offenses in the interest of justice and for good cause; in doing so, the court must balance the potential prejudice of joinder against the states interest in the efficiency of a joint trial. (People v. Arias (1996) 13 Cal.4th 92, 126.)The law prefers consolidation of charges. [Citation.] Where . . . the offenses charged are of the same class, joinder is proper under [Penal Code] section 954. (People v. Ochoa, supra, 26 Cal.4th at p. 423.) Our Supreme Court has stated:    Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, or with another weak case, so that the spillover effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.   [Citation.] [] Cross-admissibility of evidence is sufficient but not necessary to deny severance. (Ibid.)

Furthermore,    [t]he burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] [] The determination of prejudice is necessarily dependent on the particular circumstances of each individual case . . . . [Citations.]   (People v. Kraft (2000) 23 Cal.4th 978, 1030.)

Defendant first argues that the trial court abused its discretion in denying his motion to sever because the 1997 incident involving Diane was much more inflammatory and a sure winner for the prosecution, while the 2003 case was much weaker, a prototypical case in which cries of rape can be raised after the fact in order to avoid other negative consequences to the victim. We disagree.[5]

Defendants inflammatory argument amounts to a self-serving interpretation of the facts from the two incidents. He contends the stranger-on-stranger nature of the 1997 incident was more terrifying than the acquaintance nature of the 2003 incident, where the women had gone with him voluntarily to the place where the alleged offenses occurred, and that the 1997 incident involved actual violence with strangulation to the point of temporarily being rendered unconscious, with injuries such that a highly-unusual two-night stay in the hospital was required, as opposed to defendants brandishing a firearm in 2003. Defendant also contends Dianes subsequent extended trauma, including her move to Sacramento, divorce, drug use, and memory block, was greater than anything suffered by A. and D.

Defendants contentions lack merit. That A. and D. spent a few hours with the defendant and went voluntarily with him to the R.V. does nothing to diminish the substantial terror of their suddenly facing death at his hands. We reject the contention that defendants threat to kill them by pointing his gun at D.s head was somehow less significant than his violence against Diane, as brutal as that was; moreover, defendant ignores the actual violence of defendants raping of A. and D., his extended sexual assault of them, and each womans witnessing, and forced participation in the sexual assault of the other. It is also unpersuasive that Diane suffered a more extensive trauma from the assault. Both A. and D. testified about serious difficulties they had after the assault. Nothing in the record indicates their difficulties were any less meaningful than those Diane faced.

We are also unpersuaded that the 1997 case was a sure winner while the 2003 case was weak. Both cases had their strengths and weaknesses. While the DNA evidence and Dianes testimony provided strong support for the jurys verdict, Dianes inability to identify defendant, her admitted memory block, her initial lies to the police, the lack of obvious signs of force uncovered in her sexual assault examination, the lack of any corroboration for her recitation of events, and her admitted use of crack cocaine and alcohol in the hours prior to the assault posed some problems for the prosecution. On the other hand, the evidence of the 2003 incident included strong indicators that A. and D. were telling the truth, including physical evidence of forced sex found in their sexual assault examinations, each womans corroboration of defendants sexual assault of the other, their consistent statements about the assault to the medical staff at the hospital and to the police, their ability to readily identify defendant, and A.s identification of the RV. The cases were of relatively equal strength.

Defendant further suggests that, while there was no evidence that Diane voluntarily engaged in sexual relations with defendant, such evidence existed regarding A. and D. because they went voluntarily with [defendant] to the RV. At least A. must have foreseen some activity beyond conversation and smoking marijuana because she believed [defendant] was trying to pick up [D.]. Defendant also suggests the women were required to fabricate a story to avoid the wrath of their boyfriends and D.s mother. Defendants argument is a sad reminder that some may still believe that women who are raped in the course of providing social company to men must have offered themselves sexually or, at the very least, must have foreseen the irresistible temptation they presented and were, therefore, somehow responsible for any sexual assault. We reject this view. Just as with Diane, there was no evidence presented at trial that A. or D. had engaged in voluntary sexual relations with defendant.[6]

IV. Reversal of the Count One Conviction

Defendant argues that his count one conviction was time-barred by the applicable statute of limitations and, therefore, must be reversed. The Attorney General agrees. We do as well.

The information alleged a 10-year statute of limitations in connection with count ones charge of kidnapping with intent to commit rape pursuant to Penal Code sections 207, subdivision (a), and 261, subdivision (a)(2). However, the jury instructions mistakenly explained count one as a simple kidnapping, with no allegation that defendant kidnapped Diane Doe with an intent to commit rape. The jurys verdict reflected only a conviction for simple kidnapping. Although the jury found true enhancements alleged in connection with count two which qualified that offense for a term of 25 years to life, those findings were not sufficient to establish the jury found defendant guilty of kidnapping with the intent to commit rape.[7] The court imposed a mid-term sentence of eight years, citing Penal Code sections 207, subdivision (a), and 208, and stayed the term pursuant to Penal Code section 654.

Kidnapping is punishable by a term of three, five, or eight years. (Pen. Code,  208, subd. (a).) Since eight years is the maximum available punishment, the statute of limitations is six years. (Pen. Code,  800.) Thus, the statute of limitations for simple kidnapping in this case expired on June 20, 2003, six years after the date of the alleged offense, which was June 20, 1997. However, the original complaint was not filed until October 2003. Therefore, the conviction for kidnapping cannot stand.

Disposition

Defendants conviction for count one is reversed and the trial court is ordered to modify the abstract of judgment accordingly. The trial courts judgment is affirmed in all other respects.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] Diane also acknowledged on cross-examination that she testified at a 2004 preliminary hearing that her assailant had blondish red hair.

[2] The physicians assistant testified that nonspecific TB uptake means the tissue has been disturbed in some way, but that there was not a definite linear tear, a deep tear, or any tear visible to the naked eye.

[3]All further statutory references are to the Evidence Code unless otherwise indicated.

[4] In light of our ruling, we do not address the Attorney Generals argument that any error by the trial court was harmless.

[5] Defendant also argues evidence of the two incidents would not have been cross-admissible in separate trials, which he acknowledges is an issue the trial court did not address. We note that language in one Supreme Court case refers to a requirement[] that the court first evaluate whether or not the evidence would be cross-admissible in evaluating a motion to sever. (People v. Kraft, supra, 23 Cal.4th at p. 1030.) We do not interpret this reference as requiring trial courts to always consider cross-admissibility, however, because the Supreme Court also indicated that such a finding is not necessary to deny a motion to sever. (People v. Ochoa, supra, 26 Cal.4th at p. 423.) In any event, any error by the trial court was harmless, as the evidence appears admissible pursuant to section 1108. Defendant does not argue that the trial court was required to consider the cross-admissibility issue, and we therefore decline to engage in a further analysis of the question.

[6] Given our determination that the trial court did not make any errors, we do not need to discuss defendants argument that the errors were cumulatively prejudicial under the federal constitutional standard. (See People v. Valdez (2004) 32 Cal.4th 73, 136 [the court stating that [w]ithout a single instance of . . . misconduct, we cannot conclude there was cumulative prejudicial impact depriving defendant of a fair trial and due process].)

[7] In count two, the trial court specifically instructed the jury, among other things, on the enhancements associated with kidnapping with increased risk of harm under Penal Code section 667.61, subdivision (d)(2).