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People v. Hunter11/19/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
Defendant, John Douglas Hunter, appeals from his convictions for: forcible rape (Pen. Code, § 261, subd. (a)(2)); false imprisonment by violence (§ 236); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); misdemeanor battery (§ 243, subd. (e)(1)); misdemeanor child abuse (§ 273a, subd. (b)); and misdemeanor petty theft. (§ 484, subd. (a).) Defendant admitted that he was previously convicted of a serious felony. (§§ 667, subds. (a)(1), (b)-(i), 1170.12.) Defendant argues the trial court improperly: refused to appoint advisory counsel; admitted evidence pursuant to Evidence Code section 1109; instructed the jury with CALJIC No. 2.50.2; admitted evidence of prior abuse; failed to instruct the jury with the defense of consent; and denied his new trial motion. In addition, defendant argues: there was insufficient evidence to support his conviction for false imprisonment; Evidence Code section 1109 violates a defendant's right to due process; the prosecutor committed misconduct; and the cumulative effect of the trial court's alleged errors deprived him of a fair trial.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.)
A. Current Offenses Against Morena Gutierrez
Ms. Gutierrez's testimony from the preliminary hearing was read into the record after the trial court found her to be unavailable as a witness. Ms. Gutierrez later came forward during the course of the trial and agreed to testify for the prosecution. On February 22, 2000, Ms. Gutierrez walked into a Los Angeles Police Department station. Ms. Gutierrez was crying and very nervous. She seemed hysterical and afraid. Because Ms. Gutierrez spoke only Spanish, a man that accompanied her translated for her. Arrangements were made for Ms. Gutierrez to meet with Officers Michael Chang and Martin Martinez near her home. Ms. Gutierrez continuously looked over her shoulder towards her apartment . Officer Martinez briefly interviewed Ms. Gutierrez in Spanish. Officer Martinez learned defendant had a history of violence. With the assistance of others, Officers Martinez and Chang went to Ms. Gutierrez's apartment, where defendant had been staying. The officers opened the apartment door with Ms. Gutierrez's key. The officers found a couch blocking the front door. Defendant who was in the apartment, was arrested. Ms. Gutierrez was interviewed by the police inside the apartment. Ms. Gutierrez pointed out where various events occurred. While in the apartment, Ms. Gutierrez continued to show strong emotions, crying at times. Thereafter, the officers went to a day care facility, where Ernest, the almost three-year-old son of defendant and Ms. Gutierrez, was being cared for by others. Ernest and Ms. Gutierrez were then interviewed and photographed at the police station. When asked if anyone hurt him, Ernest made gestures toward his chest and the top of his head. Officer Martinez related Ernest's description of the incident as follows, "He says his dad hit him."
Ms. Gutierrez indicated that she and defendant were separated at the time of the most recent incidents. Ms. Gutierrez told Officer Martinez that defendant had held her against
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