People v. Venancio

1

THE PEOPLE, Plaintiff and Respondent, v. FERNANDO VENANCIO, JR., Defendant and Appellant.

B320236

California Court of Appeals, Second District, Seventh Division

May 11, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. SA101022 Lauren Weis Birnstein, Judge. Affirmed.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.

FEUER J.

Fernando Venancio, Jr., appeals from a judgment of conviction after the jury found him guilty of the forcible rapes of Evelyn S Tracy D., and Lisa M.; the assault of Gabriela S. with intent to commit rape; sexual penetration by use of force as to Evelyn; and petty theft as to Lisa and Gabriela. The jury also found true Venancio used a handgun in the commission of the rapes of Tracy and Lisa and the assault of Gabriela.

On appeal, Venancio contends the trial court violated his constitutional and statutory rights by conducting most of the trial in his absence after the court found he waived his right to attend trial by spreading feces on his body and the courthouse holding cell on three occasions (including after the court's admonishment) and by resisting efforts to prepare him to appear in the courtroom. Venancio also contends his trial attorney provided ineffective assistance of counsel by failing to object to hearsay statements the victims made to sexual assault response team nurses. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. Evelyn-June 15-16, 2019

Evelyn testified that on the evening of June 15, 2019 Venancio responded to her online advertisement for escort services.^[1] She agreed to meet him for $600 for one hour, and she drove to a location on 18th Street in Santa Monica. When she arrived, Evelyn followed Venancio through a gate to an abandoned apartment with a mattress on the floor. When Evelyn told Venancio he needed to pay in advance for sexual services, Venancio said he did not have the money but would give her bottles of wine in lieu of payment. Evelyn refused and tried to leave, but Venancio blocked her path. When she tried to push him out of the way, he grabbed her throat and pulled her down to the floor. Keeping one hand on her throat and squeezing when she resisted, Venancio removed her clothing. Venancio got on top of her and partially penetrated her vagina with his penis while covering her mouth and nose. He tried to give her drugs, but she refused. Venancio then digitally penetrated her vagina with two of his fingers. Venancio continued to grab Evelyn by the throat and at times choke her, making it difficult to breathe, and he partially, then fully penetrated her vagina and engaged in intercourse. When Venancio got up, Evelyn pushed him hard and ran out of the apartment naked, screaming for help as she ran into the street.

Catherine Hedden testified she was awoken by Evelyn's screams for help and went onto the balcony of the rental property where she was staying. Evelyn was screaming, "'Help me. Help me. Somebody help me. He's trying to kill me.'" Evelyn was visibly scared and shaking. Hedden dropped a t-shirt down to Evelyn and went downstairs. A bystander, Carol Martinez, called 911. She told the dispatcher Evelyn said a man was raping her and had choked her. Evelyn then came on the line and told the dispatcher she had been working at a strip club and met a man who was going to help her out with money, but he took her to an abandoned house and raped her.^[2]

At 4:17 a.m. on June 16 Santa Monica Police Officer Evan Raleigh received a call from dispatch to respond to the scene. When he arrived, Evelyn was in the street in an oversized t-shirt and socks, and she was "shaken up" and crying. Evelyn provided a physical description of her assailant and told Officer Raleigh she had agreed to model for Venancio and possibly engage in sexual relations for a fee, but he attacked and raped her. Raleigh and other police officers searched for Venancio but did not find him.

Officer Raleigh brought Evelyn to the UCLA Santa Monica Rape Treatment Center (rape treatment center), where she was examined by Page Courtemanche, a sexual assault response team (SART) nurse. According to Courtemanche's report,^[3] Evelyn told Courtemanche she met Venancio at a strip club and agreed to dance for him for $600, but after bringing her back to his residence, he held her down, choked her, and raped her. He also forced her to ingest methamphetamine. Evelyn reported Venancio threatened her, saying, "'[I]f you're good, it's not gonna be as bad,'" "'I don't wanna slap you. You need to settle down,'" "'I'm a professional,'" and "'Give me head.'"

During her physical examination of Evelyn, Courtemanche found abrasions on Evelyn's neck and elbow. Courtemanche took swabs from various places on Evelyn's body. Jessica Luna, a senior criminalist at the Los Angeles County Sheriff's Department crime lab, testified that analysis of the swabs showed the presence of sperm cells and Venancio's DNA on Evelyn's breast, hand, chin, and genitals.

2. Tracy-July 10, 2019

In July 2019 Tracy was unhoused and living in a van parked in Santa Monica. She testified that around 11:00 p.m. on July 10 she rode her bike to a gas station to buy cigarettes. After she bought the cigarettes, Venancio came up to her and offered to give her money for sexual acts, but she declined. However, she agreed to trade her cigarettes for a small amount of crystal methamphetamine. Tracy followed Venancio to a parking lot to complete the transaction.

When they arrived at the parking lot, Venancio reached into his backpack and pulled out a handgun. He pointed the gun at Tracy's head while wrapping his other arm around her throat, and she was "scared to death." With his arm still around her neck, Venancio took Tracy toward the dumpsters in the back of the parking lot. He said he would not hurt her but was going to "'fuck the shit'" out of her, and he was "'doing God's work'" by "'teaching you girls not to trust men out here because next time you might not be so lucky.'"

Venancio, while still holding the gun, ordered Tracy to undress and lie down on the ground. He climbed on top of her and penetrated her vagina with his penis, and they had intercourse for 10 to 15 minutes. He did not wear a condom, but he removed his penis before ejaculating. After he finished, he allowed Tracy to dress and leave.

Tracy told her boyfriend about the rape but initially did not report it because she felt humiliated. She reported it on July 13 after seeing an article in the newspaper. The police took her to the rape treatment center, where she was examined by SART nurse Kari Herrington. Because Tracy had wiped her vaginal and anal area after the intercourse and had been menstruating, the potential for recovery of forensic evidence was limited. DNA testing of swabs from Tracy's body did not match Venancio's DNA.

3. Lisa-July 12, 2019

Lisa testified that at around 9:30 p.m. on July 12, 2019 she was outside a supermarket on Broadway in Santa Monica on the phone with her friend Bernard, who was threatening to throw out the belongings she kept at his residence. She was carrying a bag with some clothes, a tablet computer, a cell phone charging cord, and food. Venancio approached her and asked if she was okay. They talked, and Venancio seemed "really nice" and offered to drive her to Bernard's apartment to retrieve her belongings. Venancio said they needed to walk to a nearby location to get his car keys. He was persistent, and Lisa reluctantly went with him. When they arrived at the location, Lisa followed Venancio up a staircase into a small room with a couch and boxes. He briefly went into another room, and when he returned, he appeared "agitated" and "hyper"; she believed he was high on drugs because he was sniffing something with a straw.

Venancio pulled a handgun out of his bag and said, "'I'm not gonna kill you. But I'm gonna make your night . . . a living hell.'" He spat on Lisa's face and punched her in the eye. He ripped off her clothing while she tried to fight him off, and he pinned her to the couch as he penetrated her vagina with his penis for approximately 10 minutes without a condom. As they had intercourse, Lisa could see his gun that was sitting next to the couch, and she was so scared she defecated. Venancio abruptly stopped. He then gathered his belongings, took Lisa's tablet and the food from her bag, and left.

Lisa did not initially report the rape to the police because she was embarrassed, but a few days later a community center case manager referred her to the Venice Family Clinic to treat her injuries. On July 18 nurse Nancy Pierre-Paul examined Lisa. Pierre-Paul testified that Lisa had a swollen black eye and bruising on her chest. Pierre-Paul filed a "suspicious injury report," and Lisa was brought to the rape treatment center. Lisa's belongings from July 12 were tested, and Venancio's DNA was found on Lisa's hoodie, tank top, bag, and water bottle, and on the couch in the room where the incident occurred.

4. Gabriela-July 22, 2019

Gabriela testified that on the afternoon of July 22, 2019 a man responded to her online advertisement for escort services. They agreed to $400 for one hour of sexual intercourse. He told her to meet him at the 18th Street location in Santa Monica. When she arrived, Venancio gave her a small hug and led her into "an old garage shack kind of thing." Gabriela sat down on a mat with pillows and asked for the money. Venancio said "'yeah'" and went behind a partition....