dissenting:
Because I believe that any error from the admission of Jackson’s inculpatory statement was harmless, I respectfully dissent.
The jury had before it ample evidence that Jackson raped and beat Genoveva Gonzalez. Jackson’s semen was incontrovertibly present in Gonzalez; the State’s medical expert testified that her injuries suggested she had been raped; and Jackson’s own medical expert conceded that Gonzalez’s vaginal injuries were almost certainly the result of rape. He also agreed that her injuries were fresh and that Gonzalez was likely raped while she lay supine. This extensive medical evidence was entirely consistent with Rollins’s testimony that he witnessed Jackson beating and then having intercourse while on top of Gonzalez a few short hours before she was murdered.1 In view of the overwhelming forensic evidence of rape, it is difficult to see how the jury could not conclude that Rollins saw Jackson raping Gonzalez.
Such a conclusion, moreover, when viewed in light of California’s broadly conceived doctrine of felony murder, suggests that Gonzalez’s rape and murder occurred in one continuous transaction. The California Supreme Court has expressly rejected a narrow construction of the continuous transaction concept where the predicate felony is rape or robbery. See People v. Guzman, 45 Cal.3d 915, 929-31, 248 Cal.Rptr. 467, 479-81, 755 P.2d 917, 937-39 (1988), overruled on other grounds by Price v. Superior Court, 25 Cal.4th 1046, 108 Cal.Rptr .2d 409, 25 P.3d 618 (2001); People v. Fields, 35 Cal.3d 329, 365-69, 197 Cal.Rptr. 803, 826-29, 673 P.2d 680, 703-05 (1983). These cases have emphasized that the critical element of continuity is provided by the defendant’s maintenance of control over the victim. Fields, 35 Cal.3d at 368, 197 Cal.Rptr. at 828, 673 P.2d at 705 (“But here the murder occurred within a few hours of the robbery, and at a site only a few miles distant, and the events are linked not only by defendant’s motives but by his continued control over the victim, forcing her to remain at his house and then transporting her to the murder site.”); Guzman, 45 Cal.3d at 951, 248 Cal.Rptr. at 489, 755 P.2d at 939 (approvingly discussing Fields and noting that “[t]he jury could have determined that the rape had not terminated so long as the victim had not been disposed of or confined”); see also People v. Thompson, 50 Cal.3d 134, *1013171, 266 Cal.Rptr. 309, 329-30, 785 P.2d 857, 877-78 (1990) (“In this case the lewd act and the killing occurred in the same evening, probably within one or two hours. During the entire period, the victim was under the defendant’s control, and for much of the time was either bound, locked in a trunk, or both.”).
Given that the physical evidence supported Rollins’s account of seeing Jackson beat and sexually assault Gonzalez a few hours before the murder and that Rollins later saw an apparently unconscious Gonzalez being dragged from the same Cadillac at the murder scene, the fact that Jackson exercised continuous control over Gonzalez — and that the rape had thus not terminated — is amply supported by the record.
Thus, while the majority is correct that the physical evidence of rape did not temporally link Jackson to the murder scene itself (a tall order in view of the inherent temporal imprecision of such evidence), the overall physical evidence corroborated Rollins’s account of the rape and murder. I note also that the jury heard testimony from both the State’s medical expert and an investigating officer that Gonzalez was most likely unconscious when she was shot — supporting Rollins’s testimony that Gonzalez appeared to be unconscious when Jackson and Sattiewhite removed her from the car to murder her. In sum, the evidence supports the jury’s determination that Jackson committed murder while “engaged in the commission of’ rape. See CaLPenal Code § 190.2(a)(17).
In view of this substantial evidence of Jackson’s guilt, I cannot conclude that the erroneous admission of Jackson’s statement from the third interview had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation and citation omitted).
I would affirm the denial of the writ.
. It bears pointing out that the overwhelming physical evidence of rape contravenes Jackson’s shifting and contradictory accounts of a supposedly consensual sexual encounter with Gonzalez. These accounts were offered to the police in the two interviews before which Jackson validly waived his Miranda rights and were thus properly before the jury. To highlight only one inconsistency: after initially denying knowing GonZalez at all and then admitting that he recognized her, Jackson told police in the second interview that he and Gonzalez had had intercourse while standing up in the laundry room of an apartment complex. But as Jackson’s own medical expert admitted, various abrasions on Gonzalez’s body strongly suggested that she had been raped while lying on her back. Moreover, the jury heard testimony from Gary Moreno, an acquaintance of Jackson's whose apartment complex housed the laundry room where Jackson allegedly traded drugs for sex with Gonzalez, that cast serious doubt on Jackson's story.