Monday, April 21, 2008

Gundersen alleged rape victim testifies in hearing - UPDATED

UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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EUREKA -- District Attorney Paul Gallegos called an alleged rape victim to the stand in his case against Blue Lake Police Chief David Gundersen today, asking her to reconstruct the alleged gun-point assault during the late 1990s.

The alleged victim, Jane Doe 2, testified at a preliminary hearing in Superior Court that she and Gundersen were living together in McKinleyville and planning to get married when she found out he was still legally wedded to his now-ex wife. While they were arguing about it, she said, he grabbed her, pushed her into a back bedroom and attacked her, tearing her clothes. He then raped her, she said.

At one point Gundersen put his gun on the pillow or bedside table, which she saw as a threat...
TS breaking news link The hearing is scheduled to continue on Tuesday.

It was earlier reported that The amended complaint alleges Gundersen did willfully “kidnap or carry away” a second victim for the purpose of committing forcible rape in March 1999, and that the alleged crime was committed with the use of a firearm.
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A comment in the thread below notes: Movement from one part of the house to another is not kidnapping. Please read below.

§ 207. Kidnapping defined: (a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

Movement across a room or from one room to another cannot reasonably be found to be asportation "into another part of the same county" within the meaning of Pen Code, § 207, defining kidnaping, and when in the course of a robbery, the robber does no more than move his victim around inside a residence, place of business or other inclosure, his conduct will generally not be deemed to constitute the offense of aggravated kidnaping as proscribed by Pen Code, § 209. People v. Daniels (1969) 71 Cal 2d 1119, 80 Cal Rptr 897, 459 P2d 225, 1969 Cal LEXIS 307, 43 ALR3d 677.

209(b) states:

(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.

(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.


UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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40 comments:

Anonymous said...

Sounds like rape to me.

Anonymous said...

Rape? Maybe. Certainly not kidnapping. Don't see any commission with a firearm there either if that's an accurate report. False imprisonment? I'm not seeing that.

Anonymous said...

Forcing her into a bedroom, pushing her down and ripping off her clothes is false imprisonment. If he "put his gun on the pillow or bedside table" he must have had it in his hand prior to that. Sounds like rape in commission with a firearm to me.

What about the EPD not following up on her complaint?

Anonymous said...

So I guess Gunderson meant something different by offering the victim an undercover officer job, then what is meant in traditional law enforcement circles! The covers Gunderson was talking about were those found on his bed apparently.

Rose, your boy is going down, and nothing can prevent that now.

Are you still sticking up for the rapist, or do you believe in that solemn right of rape victims to not testify? (If it helps the police.)

I notice you are curiously silent on this one.

Rose said...

I do believe in the (alleged) rape victim's right not to testify. Regardless. I may not like it, but it's not up to me. Not sure how that applies to this particular post.

Anonymous said...

This particular witness is willing to testify. She is Jane Doe 2, not 1. She filed a police report when it happened but it didn't go anywhere, probably because he was a police chief. They do protect each other.

Rose said...

Here we go with the circular reasoning again. YES, this one IS willing to talk, which is why I said I don't see how your question applies to this post.

We'll ALL just have to see how this all plays out. there's plenty of firepower on both sides.

Anonymous said...

8:27 is not the same person as 8:51 Don't you have everyone's IP address?

Fred said...

8:19 asks, "What about the EPD not following up on her complaint?".

As myself and others have brought up elsewhere: Why would EPD take a report of a crime committed outside their jurisdiction? Wasn't this rape supposedly committed in Mckinleyville?

I would think proper procedure would have been for them to refer her to the Sheriff's Office.

She also has a pretty shakey memory of things aside from the rape, like her supposed offer to be hired as an "undercover officer" for Trinidad. Sounds like BS to me.

Anonymous said...

GAGS is grasping at straws. This alleged incident occurred about ten years ago, is a she said-he said case with no evidence, and the witness does not appear to have her facts too straight in Court. I don't think this allegation will go far.

Anonymous said...

Maybe PVG will call a psychiatrist to the stand to remind everyone of the effects of PTSD.

3 women have said Gundersen raped them and some of you are still in denial. UNBELIEVABLE!

Anonymous said...

From the TS today:

"A Computer Aided Dispatch call record contained in Gundersen's court file, indicates that Doe called EPD at about 2:30 p.m. on March 26, 1999. Len Johnson, now a lieutenant with the department, spent about 45 minutes with Doe, according to the record, but did not file a report."

There is the supporting evidence. What do you say now?

Anonymous said...

Well, here's hoping Len took good notes, because he should be a witness at some point.

Humred said...

Anon 8:19, If he raped her he is wrong. It is obvious u have never carried a weapon. How about he took it and put it on the dresser. Just like u put a wallet, keys, eyeglasses, etc. off when u take off your cloths. U all want to see your on side in this, reading in parts that fit your version. There is just a number of things that don't add up.
Including the way the DA has handled this case.

Anonymous said...

Yeah, people always stop during a rape to put their wallet, keys etc on the dresser. Do they do it before or after they rip the clothes off their victim?

Anonymous said...

Movement from one part of the house to another is not kidnapping. Please read below.

§ 207. Kidnapping defined: (a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

Movement across a room or from one room to another cannot reasonably be found to be asportation "into another part of the same county" within the meaning of Pen Code, § 207, defining kidnaping, and when in the course of a robbery, the robber does no more than move his victim around inside a residence, place of business or other inclosure, his conduct will generally not be deemed to constitute the offense of aggravated kidnaping as proscribed by Pen Code, § 209. People v. Daniels (1969) 71 Cal 2d 1119, 80 Cal Rptr 897, 459 P2d 225, 1969 Cal LEXIS 307, 43 ALR3d 677.

Did he willfully ignore the law or is Gallegos truly stupid?

Anonymous said...

Does the definition of kidnapping during a robbery differ from that during a rape?

Anonymous said...

there are room to room kidnapping cases. see, eg http://www.jstor.org/pss/1226963

Anonymous said...

I can't access that. I was just wondering because the case cited is about robbery where the purpose is to steal and the people are secondary as opposed to a rape where the person is the main object of the crime. Doesn't that make a legal difference?

Anonymous said...

10:31 - That article is from 1959. The Daniels case is from 1969 and is the state of the law currently. Are you blogging on county time or what.

10:23 - 209(b) states:

(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole.

(2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense.

The asportation element recognized in Daniels is actually built into the statute now.

Anonymous said...

What about the use of a firearm? Does that make a difference?

No, I don't work for the county. Just a curious civilian.

Anonymous said...

the fact that it is robbery vs rape doesn't make a difference - same code section.

the gun has nothing to do with it at all.

Anonymous said...

Maybe this helps:

The movement of rape victim 20 or 30 feet from a road to the bottom of a roadside embankment was, as a matter of law, merely incidental to the commission of the rape and was thus insufficient to support a separate conviction for aggravated kidnapping. People v. Dominguez (2004, Cal App 6th Dist) 118 Cal App 4th 651, 13 Cal Rptr 3d 212, 2004 Cal App LEXIS 719, rehearing denied (2004, Cal App 6th Dist) 2004 Cal App LEXIS 884, transferred (2004, Cal App 6th Dist) 124 Cal App 4th 1270, 22 Cal Rptr 3d 249, 2004 Cal App LEXIS 2139.

Anonymous said...

the article is from 1959, yes. The Constitution is even older. Both remain relevant. Both are frequently cited by the courts.

The asportation element is decided on a case by case basis. It is doable, but difficult. PVG needs the kidnap to get by the statute of limitations. I doubt he cares whether the prelim court, or a trial ocurt, or an appellate court
finds that the asportation element
was not met. A lot of prosecutors would rather try and lose, than not try at all, and that's not always the wrong attitude. In this instance, there appears to be an air of desperation to throw anything at the wall in hopes something sticks, but if it sticks, who's lauging then?

Anonymous said...

Let's hope something sticks and this creep doesn't get away on a technicality.

Anonymous said...

Does Jane Doe 2 matter if the first case falls apart?

Anonymous said...

I agree he needs the kidnap, to get it out of the statute of limitations. Yes, the asportation is decided case by case. You still can not ignore Daniels and its progeny.

From what I have read is that Jane Doe lived with Gunderson and that after a fight they moved from the living room to the bedroom. No cases I have seen would support the asportation element in this type of situation.

Desparation....man that it an understatement if I ever heard of one.

Anonymous said...

What I read about her testimony was that he FORCED her into the bedroom, not that "they moved" into the bedroom. Whether or not that means anything isn't the point. The above poster seems to be attempting to make light of this entire case for some reason.

Rose said...

Is that what you get 4:52? What I hear is people questioning whether Gallegos has charged the man properly. Something that would be necessary to get a conviction.

Anonymous said...

Anon 8:13- A call to report a crime to LE is not really evidence of a crime, it is merely an alegation. No report was taken, no evidence collected. What we have today still is an allegation that the suspect commited a crime, which still amounts to a she said-he said case with NO EVIDENCE BUT HER TESTIMONY/ Good try GAGS, you may yet again be blowing another case.

Anonymous said...

P.S. GAGS slogan should be changed to equal INjustice for all!!

Anonymous said...

9:38 -

I note the word "generally" in your post - the idea being that movement over a short distance "generally" doesn't constitute kidnapping.

But saying something is "generally" true is not the same as saying it is true. In fact, use of the term "generally" implies that in specific cases there may be an exception to that "general" rule.

Perhaps this is such a case. If not, at what point should we expect the judge to dismiss the kidnapping charge? If it is really as straightforward a legal point as you claim, that should happen right after this preliminary hearing, right?

If not, it would appear that at least one judge doesn't side with your interpretation of the law in this case.

Anonymous said...

The case has all kinds of questions just looking (skeptically) at the papers.
Physical evidence?
Why no follow through by EPD
What do the kids say (who allegedly saw the kidnap and start of the rape)
Documents?
Therapists?
Admissions?
Has Clanton "let slip" that his guy
took a poly, or is Clanton staying away from that issue because
Gunderson can't pass one (standard offer by defense lawyers is to have defendant take a poly, not admissible but persuasive), of course the local "poly" guy is
Dawson, father in law to PVG's investigator Hislop.
What will Clanton dig up on Jane 2 by the time trial rolls around?

This is like, Survivor Courthouse.

Anonymous said...

6:25 - you are missing the point...it is not my interpretation of the law in this case - it is the California Supreme Court's interpretation.

Anonymous said...

The Cal Supremes have never set
specific distance rules on a kidnap, nor have they decreed that
room to room cannot be a kidnap.

Anonymous said...

Read the case 11:38 and you will find out waht they held. Here is the summary for your edification:

Defendants were convicted of kidnapping for the purpose of robbery with the victim suffering bodily harm. One defendant was convicted on a separate count for the same offense, and the other defendant was also convicted of rape. They were sentenced to death on the kidnapping counts. On their automatic appeal the court reversed the kidnapping convictions and affirmed the conviction for rape. The court concluded that the movement of the victims was merely incidental to the crime of robbery, did not substantially increase the risk of harm to them, and was not within the scope of the aggravated kidnapping statute, Cal. Penal Code § 209. People v. Wein, 326 P.2d 457 (Cal. 1958), which held that movement of the victim for any distance, no matter how short, constituted kidnapping, was overruled, and the court concluded that in amending § 209 the legislature intended to exclude incidental victim movement from the scope of the kidnapping statute. The court held that movement of the victims over distances of from 5 to 30 feet was not asportation within the meaning of Cal. Penal Code § 207, which defined kidnapping as carrying the victim into another part of the same county.

First, the opinion was written by Mosk who will always be considered as a bastion for liberal thought on the bench.

Second the FACTS:
1) Mrs. R. was in her home awaiting the return of her husband, a deputy sheriff. There was a knock at the door, and she opened it. Defendants Daniels and Simmons, the latter carrying a gun, forced their way in. They pointed the weapon at her face and asked if she had any money, but she replied she did not. They walked her quickly through the dining room into the kitchen, a distance of approximately 18 feet. They repeated their demand for money, and she told them to look in her purse and see for themselves.
Daniels, who was then holding the gun, put a dish towel over Mrs. R.'s face and warned her not to scream or he would shoot her. Simmons removed her pants and raped her. During the act of intercourse Daniels left the room briefly, then returned and told Simmons they had better get out of there. Again warning her not to move or cry out, defendants left the house. In a distraught condition Mrs. R. telephoned for her husband, and when he arrived the police were called and furnished with a description of the attackers.

2) Miss S., a graduate student, lived alone in a one-room apartment with a small kitchen and bathroom. Shortly after 11 p.m. on May 19, 1966, there was a knock at the door. As she was expecting a classmate, she opened the door and was confronted by defendant Simmons. He asked for someone by a certain name; she said no one by that name lived there, and requested him to leave. She tried to shut the door, but he forced his way in, pushed her against the wall, and pulled a gun out of a paper bag he was carrying. When she screamed for her next-door neighbor, Simmons put the gun to the back of her neck and said he would shoot her if anyone came. He then demanded her money. She walked over to a nearby table on which her purse was lying, a distance of five or six feet; he followed with the gun, and she gave him the $ 12 that the purse contained. Simmons then directed her to turn off the lights, lie down on the couch, and remove her clothes. After forcing her to orally copulate him, he raped her but achieved only slight penetration. Hoping to distract him from hurting her further, Miss S. engaged him in conversation. The lights were turned on again, and she could see him clearly. After a while he took her into the adjoining bathroom and resumed the sexual assault, forcing her to orally copulate him once more and to submit to another act of rape. Returning to the living room, Simmons emptied out her purse and examined its contents. He threatened to rip out the telephone cord unless Miss S. promised not to call anyone. Finally he replaced his gun in the paper bag and left the apartment. Miss S. immediately called the police, gave them a description of Simmons, and was taken to hospital for treatment.

The court wrote:

Applying this rule to the facts at hand, we conclude that the brief movements which defendants Daniels and Simmons compelled their victims to perform in furtherance of robbery were merely incidental to that crime and did not substantially increase the risk of harm otherwise present. CA(6b)(6b) Indeed, HN9when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him -- whether it be a residence, as here, or a place of business or other enclosure -- his conduct generally will not be deemed to constitute the offense proscribed by section 209. HN10Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation "into another part of the same county." ( Pen. Code, § 207.) CA(4c)(4c) Accordingly, the judgments on counts II, III, and IV must be reversed, and People v. Wein (1958) supra, 50 Cal.2d 383, must be, and is, overruled insofar as it is inconsistent with the views herein expressed. 14

I happen to have known members on the court in 1969. This case was incredibly important as it also overruled the Chessman case. You do remember Chessment, he was put to death because he moved his victims in the same manner, just a couple of feet within their residences.

Tell me 10:35 - were you around in 1969? Do you even know didley about Chessman? Ever discussed the matter with anyone on the court afterwards? Probably not.

Hopefully, you will not take this as a rebuke, but as an opportunity to realize that you can not just take language out of a case without knowing its context, its history and also the cases that came after it.

Anonymous said...

thanks for the info 11:51. i appreciate the time you took to cite this case law and offer your analysis of how it should be applied in this case.

i guess we'll see if the judge agrees with the idea that the movement of the victim in this case was "incidental to the crime."

by the way, 11:51, if you think kidnapping is the wrong charge, what do you think the correct charges against gundersen should be, if any? rape, spousal rape, sexual assualt, false imprisonment, something else?

also, if kidnapping is so clearly inapplicable based on the evidence given so far, when should we expect the judge to dismiss that charge? it seems to me that if its as straightforward as you say, we'd expect to see that charge dropped right after this preliminary hearing, would we not?

(by the way, i posted anonymously at 6:25pm yesterday, but i'm not your 10:38am correspondent.)

Anonymous said...

1151, you assume that pointing out the unrebuttable fact that the courts have never set a hard and fast distance as to what does and does not substantially increase the risk to the victim ( to cite one factor, but not all of them, discussed in Daniels and its progeny) suggests a base of knowlege inferior to your own.

Bad assumption. As to what I know about Caryl Chessman, and with whom I have discussed this issue or others --I don't need to parade my age, resume or anything else to persuade myself, you, or anyone else that I am reading the cases correctly. Why don't you just conjure whatever picture of me makes you feel most secure, and
go with it? If it will make you feel better, trot out or make up some other fun facts you would have the world believe about you. It's amusing when persons who
blog as anonymous try to tout themselves as authorities.

Anonymous said...

2:31 and 3:31 - you are joking right?

Frankly I don’t believe you know squat about the Chessman case. I might buy the fact that you decided to read the Daniels case and ingested their discussion of Chessman.

And I will not engage you in charges that “should have been brought.” This is about the crap that was brought.

Don’t know what the trial court will do. You see, we have an advocacy system in our courts. The judge will decide the issue if the defense attorney raises the issue. If not, and if there is a conviction then the appellate court will decide it. You see, judges normally don’t raise these issues on their own. Please go over to Heraldo to exhalt the idiot that pursued this. I read the paper this morning and am disgusted. Joan Gallegos represents the ex wife who has a hard on for Gunderson. Seems pretty clear to me that her husband abused his authority by taking part in bringing the current wife in, lying to her and coercing her to give a statement that she didn’t want to. Also is clear that she didn’t want this pursued but was forced to after a 7 hour interview where she wasn’t allowed to leave.

What charges should have been brought you ask? How about false imprisonment and blackmail against the DA. That ought to do.

Anonymous said...

923, your concern over Chessman is

odd. The one and only issue that
Gallegos has to prove is asportation. Without that, he loses kidnap for rape, loses the sol, loses the case in a hideously humiliating fashion. It is not impossible that, at prelim, the judge will lack the sand to say
"no asportation" per Daniels, Rayford, etc. It does seem highly unlikely that, since a trial jury is a little different from a grand jury (uh, there's a judge and a defense lawyer, kind of like Douglas and Zanotti now have) that
PVG will be able to prove asportation at trial. And if today's paper is half right about
Jane 1 (aka The Defense's best witness) the jury is going to be exchanging some very funny looks.

But the DA doesn't care. There is no such thing as bad ink.