Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct.No. F05911
Duffy, J.
A jury convicted William Michael Allen (defendant) of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)), three counts of forcible sodomy (id., § 286, subd. (c)(2)), three counts of forcible rape (id., § 261, subd. (a)(2)), kidnapping to commit rape (id., § 209, subd. (b)(1)), assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)), and robbery (id., § 211). The trial court found true a number of prior conviction allegations, including some that implicated the one strike law (id., § 667.61), “Three Strikes” law (id., §§ 667, subds. (b)-(i), 1170.12), or section 667, subdivision (a), habitual offender statute. It sentenced defendant to 260 years to life in prison.
On appeal, defendant contends that the trial court erred in ruling that statements he made to a pastor were not excludable under the statutory penitent privilege, and their admission resulted in constitutional violations; that it was improper to impeach him with evidence of his prior fantasies about rape, and that doing so resulted in constitutional violations; and that his punishment was increased in violation of constitutional ex post facto guaranties.
We will affirm the judgment.
FACTS
On October 6, 2002, defendant, who had a history of committing violent sex crimes, committed a series of forcible sexual assaults on J. N. after forcing her to a secluded location in Santa Cruz County. He intended to murder her after ending his series of assaults but changed his mind because he did not want her three-year-old son, who had stayed in her car during the ordeal, to grow up motherless. J. N. survived and testified against defendant.
I. Prosecution Case
J. N. was parked by the side of a remote private road to relax. She opened her eyes when she heard the rattle of a dilapidated automobile. She recognized the rattle as the same distinct sound of a poorly maintained automobile that she had heard several times at the home of her partner R. F. Defendant emerged from the automobile, asked J. N. if she was all right, and drove away. Minutes later he returned, strangled her by the neck through the driver’s window so that she almost lost consciousness, and told her not to scream or he would kill her. Defendant’s eyes betrayed his rage. He forced her to go with him into or through a secluded copse of redwood trees that shielded them from being viewed from the road. Thereafter he proceeded to force her to orally copulate him. He told her that she was “good at this.” During that crime defendant mentioned J. N.’s “girlfriend,” and J. N. realized defendant’s automobile had been used to prowl around R. F.’s house.
Thereafter defendant proceeded to sodomize J. N. three times and rape her three times, causing her great pain. He also hit her in the ribs twice, bit her on the shoulder, and threatened to whip her with his belt. Defendant told her “I was in prison for 20 years. Believe me it’s nothing to kill you.”
Defendant bound and gagged J. N. and told her that he was faced with a dilemma: he felt that he had to kill her so that she could not identify him, but also felt that he could not leave her son without a mother. He explained that his mother was killed or died from other causes when defendant was 15 or 16 years old. Remorseful, he released her, but not before stealing $105 from her purse.
J. N. drove to R. F.’s house and appeared in emotional distress, disheveled, bruised, and scraped. She insisted that R. F. not call law enforcement, telling her that her assailant had threatened to kill them if she did. Defendant had told her words to the effect of “ ‘I am going to let you go, but if you call the cops, . . . I didn’t survive prison for 20 years without friends. Someone will be at your house and kill you and everyone there.’ ” R. F. called law enforcement anyway. A responding sheriff’s deputy found J. N. “very distraught” and “kind of frantic,” cut, bruised, disheveled, and with twigs and other foreign matter in her hair.
R. F.’s house was near the edge of the Forest of Nisene Marks, a wild land park, and was along a remote private dead-end road with little traffic. For a month or two before the attack on J. N., R. F. had heard a loudly running automobile near her property. Ordinarily there was no nighttime traffic, but she had heard the distinctive sound as late as 1:00 a.m. After the attack on J. N., R. F. never heard that automobile again.
When sheriff’s deputies arrested defendant he was driving what one deputy described in testimony as an “abnormally loud” automobile. Defendant acknowledged to the deputies that he had been in prison for 20 years and that his mother had died when he was 15 years old. The testifying deputy noticed scratches on defendant’s arms and that defendant had an injured knee.
J. N. identified defendant in a photographic lineup and also was able to identify his automobile, an Opel. Deoxyribonucleic acid (DNA) evidence taken from the bite on J. N.’s shoulder matched defendant’s DNA.
J. N. testified that she had never met defendant or even seen him before the spree of sex crimes he committed against her.
As will be described in detail post, page 11, defendant confessed to a local pastor, Ronald Roy Vining, that he had sexually assaulted J. N.
There was evidence that defendant had committed similar crimes. Sheila B. testified that in 1977 defendant accosted her on the beach in Pacific a (San Mateo County) and forced her to orally copulate him. He complained that she “wasn’t very good at this.” During the attack he hit her in the ribs. Sandra H. testified that in 1980 she and defendant visited the beach at Pacific. On the way home defendant stopped the car, put her in a headlock, and thereafter forcibly sodomized and raped her several times, also forcing her to orally copulate him.
II. Defense Case
Defendant testified on his own behalf. He did not dispute engaging in sexual activity with J. N. at the location she identified, but contended that it was consensual and that he roughed her up as part of a plot in which the two were conniving. He and J. N. had met in 1979 on the Santa Cruz boardwalk. Defendant was at a coffee house in Aptos on September 15, 2002, when J. N. and her son walked in, and they recognized each other from their 1979 encounter. Defendant told J. N. that he had been in prison for sex crimes and was now living in a trailer near a church. J. N. asked defendant if the two could meet in the following week. They met at a parking lot and J. N. told defendant she wanted to get full custody of her son, live with R. F., and continue to receive child support from her son’s father. “She wanted to stage a rape so that she could go to him with all the characteristics of a rape and break away from him.” She told defendant, “I know you had experience with this. So I am wondering if you can help me stage this without causing unnecessary pain.” After telling J. N. “My schedule’s pretty full” defendant decided to proceed and realized he would need to create evidence, discoverable on her body, that she had been accosted, restrained, and sexually assaulted. J. N. agreed but again asked to be hurt as little as possible. She agreed not to report anything to the police.
J. N. and defendant met in the remote location to carry out the plot. She was waiting for defendant with her son in the back seat when he arrived. J. N. led defendant to a secluded area in which they engaged in consensual vaginal and anal intercourse. Defendant physically assaulted J. N. with her consent, including punching and biting her, to make the feigned sexual assault look more real. J. N. paid defendant for staging the assault.
After defendant’s arrest, Vining visited him in jail and pressed him to confess. Vining asked, “ ‘Did you do it? Just say you did.’ ” Defendant replied, “ ‘Not the way they’re saying it.’ ” He never told Vining that he had raped J. N.
On cross-examination, defendant stated that when questioned by the sheriff’s deputies he lied about his whereabouts on the day of the crimes, but did so because J. N. and he had agreed that the police would not be allowed to connect him with the staged assaults. Defendant denied monitoring the house at which J. N. and R. F. were living.
II. Prosecution Rebuttal Case
The father of J. N.’s son testified that he knew about her relationship with R. F. and there was no tension between the three of them generally or between him and J. N. regarding the upbringing of their son. J. N. provided similar testimony and reiterated that she had never seen defendant before he assaulted her.
DISCUSSION
I. Admitting Evidence of Defendant’s Statements to Minister
Defendant contends that the trial court erred in ruling that statements he made to a minister were not excludable under the penitent privilege (Evid. Code, §§ 1030-1033). In his opening brief, he claimed that the court’s ruling resulted in violations of state law and the free-exercise clause of the First Amendment to the United States Constitution. Defendant acknowledged in his reply brief that his First Amendment claim is flawed and effectively retracted it. He has recast his federal constitutional claim to argue that the court’s action violated the due process clause of the Fourteenth Amendment insofar as the embodiment of the penitent privilege in sections 1030-1033 created a liberty interest to engage in the free exercise of his religious beliefs. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)
Further unlabeled statutory references are to the Evidence Code.
A. Forfeiture
Defendant did not present any constitutional claim to the trial court and has forfeited his due process–liberty interest claim on appeal. His due process–liberty interest claim is not merely an additional legal consequence of his state law claim. (Cf. People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5; see also id. at pp. 997, 1000, 1024, 1029, 1031, 1055.) Rather, defendant’s constitutional claim is grounded on an entirely separate legal theory, namely that the penitent privilege “is congruent with the [First Amendment’s] Free Exercise Clause in its pre-1990 manifestation” and the privilege thus “protect[s] a fundamental liberty interest even if the privilege is no longer a constitutional right under the First Amendment” and therefore the court’s rejection of his motion to exclude the evidence was “an arbitrary act” that violated the asserted due process–based liberty interest. The court below was never presented with this complex argument, and it would be unfair if defendant were permitted to “argue the [lower] court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.) We will entertain defendant’s claim of error under state law, for it was raised before the trial court.
B. Facts and Procedural Background
Defendant filed a motion to exclude statements he made to Vining, a pastor in the Free Methodist Church (USA), during visits by Vining to defendant in jail. Defendant admitted to Vining that he had raped J. N. The pastor was also defendant’s landlord and employer; before his arrest defendant lived in a trailer on church property and the pastor would give him occasional work to do on church premises.
Defendant attached as an exhibit to his motion the Pastor’s Handbook published by the Board of Bishops of the Free Methodist Church (USA) (rev. 4th ed. 1998). The Pastor’s Handbook contains a written Code of Ethics, part of which is a section on Pastoral Standards. The Standards provide in pertinent part: “I will keep confidences inviolate.”
At the first hearing on the motion, held on September 14, 2005, Vining was not available to testify. The parties stipulated that on October 8, 2002, and November 4, 2002, defendant and Vining met in a room commonly used for attorney-client conferences. Vining was told that this was an attorney-client visiting room and that conversations in it would not be recorded. The prosecutor added, without disagreement by defense counsel, that defendant was not told any of the foregoing information. The parties also stipulated that Vining was a validly ordained pastor in the Free Methodist Church (USA) and that at some point Vining had read the Pastoral Standards but did not believe they required him to keep confidential defendant’s admission that he had raped J. N.
The trial court asked counsel whether Vining was performing church-related duties when he visited defendant and commented that if Vining was visiting defendant in a different capacity the penitent privilege “doesn’t apply.” Defense counsel noted that the room in which the visits took place was not the inmate visiting facility and opined that meeting in the attorney-client visiting room suggested that things said in it would be held in confidence. The court questioned whether defendant knew that being in a particular room signified that his communications would be confidential. The court commented that according to the evidence before it defendant asked Vining if he was there to take his confession and the pastor replied no. Defense counsel acknowledged that Vining instead said he was visiting defendant as a friend. Counsel argued, however, that Vining never told defendant that his statements would not be confidential and noted that the burden is on the state to show that defendant’s communication was not confidential (§ 917, subd. (a)). The prosecutor argued that in a standard penitent-clergy exchange, the penitent wishes to confess something and initiates the conversation, whereas in this case Vining came to defendant and demanded the truth, something more in line with the behavior of a friend who felt betrayed than with a minister responding to a parishioner’s entreaty to have a guilty conscience soothed. The prosecutor added that the implicit character of the conversation as non penitential was confirmed when defendant asked Vining if Vining was going to take his confession and Vining demurred, saying he was visiting as a friend. The prosecutor also argued that defendant did not attempt to confess his sins to pastors serving the inmate population. The gravamen of the prosecutor’s argument was that unless both parties to a communication believe it is a confidential penitent-clergy communication, the privilege does not apply.
The trial court ruled that, on the basis of the facts currently before it, Vining visited defendant as a friend who felt betrayed and wanted defendant to explain his conduct in light of the favors Vining had extended to him, i.e., letting him live on church property and assist the pastor. The court further ruled that Vining did not believe the conversation to be confidential. Based on these findings, it tentatively denied the motion to exclude the evidence of defendant’s statements to Vining. To ascertain the relevant facts, however, the court asked that Vining, who was in Indiana, appear to testify in limine.
Accordingly, on September 23, 2005, in the middle of trial, the trial court conducted a hearing at which Vining testified outside the jury’s presence and hearing (§ 402, subd. (b)). Vining testified that the Free Methodist Church (USA) has no practice of confessing to a pastor; rather, the parishioner confesses directly to God. Vining agreed with counsel that “that was the whole point of the protestant revolution.” Vining would not agree to keep confidences, and was trained by the church that if someone asked him to promise not to repeat what the person was about to say, Vining was to “automatically” refuse the request. Nothing in the Pastor’s Handbook contravened this practice. The handbook did, however, give Vining discretion to keep confidential a parishioner’s statement about a past event “if it wasn’t illegal, if it wasn’t something that was going to harm somebody.” Vining’s practice, if people came to him saying they wanted to broach a subject confidentially, was to tell them, “ ‘Absolutely not,’ unless it is something that isn’t illegal or something that is going to go against our bible and our beliefs.”
Vining further testified that he met defendant at a coffee shop in Capitola and that defendant told Vining he had recently been released from prison and was about to be evicted from a trailer park. Defendant asked Vining for help. Vining moved defendant’s trailer onto church property and provided him with free electrical service. In exchange, defendant served as the property’s caretaker. The church was not yet operational; Vining had been sent there to revive its congregation and facilities. The two developed a “very deep” friendship. Vining considered himself to be defendant’s landlord and employer as well as defendant’s friend. In addition, the two would talk about God together.
Vining was “devastated” when he learned of the charges against defendant because he had “just poured ten months of my life into keeping him away from doing what I had heard had happened.” He went to see defendant to find out if he had committed the crimes and if so, what could have prompted him after the opportunities Vining had extended to him to succeed in life. Vining insisted that he did not visit defendant to take defendant’s confession, and had no ecclesiastical writ to do so. “I went as a friend wondering why he had done what he did to me as a friend.”
When Vining entered the attorney-client conference room, defendant asked him “ ‘What are you doing here?’ ” Vining replied, “ ‘Billy, I am here because I am your friend and probably your only friend right now.’ ” Defendant also asked Vining, “ ‘Are you here to take my confession?’ ” Vining replied that “our church does not have the belief of confession.” Defendant did not ask Vining to keep private any conversation that the two might have. Vining did not perceive that defendant was making a confidential communication to him.
After receiving defendant’s statement that he raped J. N., Vining later informed a jailer, Sergeant McAulay, and other people about it.
On cross-examination, Vining testified that everything he did in life was part of his ministry. He agreed with counsel that everything he did he “consider[ed] as part of God’s world.” He would discuss scripture with defendant and acknowledged that he was defendant’s minister. During their meeting in jail, Vining discussed scripture with defendant. Vining did not tell defendant that he would not keep confidential anything defendant said.
Cross-examination also revealed that when defendant originally asked Vining if Vining was there to take his confession defendant had a smirk on his face. When defendant made his remark, Vining explained to him that unlike the Roman Catholic Church, the Free Methodist Church (USA) does not believe in the intermediation of a priesthood and that the penitent should confess directly to God.
On redirect examination, Vining explained that he interpreted defendant’s smirk as an attempt “to lighten the atmosphere in the room.”
The trial court ruled as follows: “The pastor did not believe the conversation was to be held in confidence. [¶] The pastor solicited the conversation, the contact. [¶] The pastor believed he was acting as a friend, not in a pastor capacity. He told the defendant he was acting as a friend, not take his confession. [¶] Pastor went there to find out whether or not the accusations were true and find out why Mr. Allen violated his friendship. [¶] Defendant was not a member of the church. [¶] Pastor did not believe he had an obligation to keep this communication confidential. [¶] . . . I don’t find the defendant had a reasonable expectation that the statement be kept confidential.” The court denied defendant’s motion to exclude the evidence, implicitly ruling but without so stating that the state had overcome the presumption (§ 917, subd. (a)) that the penitent privilege applied.
Thereafter Vining testified before the jury that he met with defendant in the Santa Cruz County jail and defendant told him he was guilty of one of the sexual assaults charged against him. Defendant described seeing the victim’s car parked by the side of the road, noted that it appeared to be occupied by a lone woman, and that “he dragged her out of the car and then he raped her.” Defendant denied beating the victim. Defendant told Vining, “I realized what I did was wrong and that I was going to get caught.” Defendant also told Vining “that he understood that what he did was wrong, not only illegal, but it was a sin against God. [¶] He told me that . . . he was pleading guilty and that he wanted a very short and quick trial. So that there would be no mess.”
C. Discussion
1. Burden of Proof and Standard of Review
Section 917, subdivision (a), states, as relevant here: “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the . . . clergy-penitent . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”
The Assembly Committee on Judiciary Comment to the original version of section 917 states in part: “If the privilege claimant were required to show that the communication was made in confidence, he would be compelled, in many cases, to reveal the subject matter of the communication in order to establish his right to the privilege. Hence, Section 917 is included to establish a presumption of confidentiality . . . . [¶] To overcome the presumption, the proponent of the evidence must persuade the presiding officer that the communication was not made in confidence. Of course, if the facts show that the communication was not intended to be kept in confidence, the communication is not privileged.”
The foregoing committee comment makes clear that section 917 establishes a presumption of confidentiality, but also that if the communication was not intended to be kept in confidence, it is not privileged.
“[T]he claimant of the . . . privilege has the burden to prove . . . the facts necessary to sustain the claim,” “aided by a presumption that a . . . communication was made in confidence. (Evid. Code, § 917.)” (People v. Mickey (1991) 54 Cal.3d 612, 655.) “The opponent has the burden to prove otherwise [under section 917].” (Ibid.)
“ ‘ “When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations].” ’ ” (HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 60; cf. Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 441-442.)
2. Whether Defendant’s Statements Were Privileged and Excludable
Section 1033 provides that “[s]ubject to Section 912, a penitent, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege.” A “ ‘penitent’ means a person who has made a penitential communication to a member of the clergy” (§ 1031), and a “ ‘member of the clergy’ means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization” (§ 1030).
A “ ‘penitential communication’ means [1] a communication [2] made in confidence, [3] in the presence of no third person so far as the penitent is aware, [4] to a member of the clergy who, [5] in the course of the discipline or practice of the clergy member’s church, denomination, or organization, [6] is authorized or accustomed to hear those communications and, [7] under the discipline or tenets of his or her church, denomination, or organization, [8] has a duty to keep those communications secret.” (§ 1032.)
We conclude that although Vining held the office of “a member of the clergy” (§ 1032) when he spoke with defendant, he was not acting in that capacity at the time. Hence the privilege does not apply.
Substantial evidence supports the trial court’s explicit and/or inferable factual findings that Vining alerted defendant he was acting as a friend and was not there in the capacity of “a member of the clergy” (§ 1032). When, at the beginning of their first encounter, defendant playfully or flippantly asked Vining whether he was visiting to take his confession, Vining responded that he was not and that under the tenets of the Free Methodist Church (USA) defendant could confess only to God. It is plain that “not every communication to a member of the clergy is privileged in the eyes of the law.” (People v. Edwards (1988) 203 Cal.App.3d 1358, 1362.) Rather, it is necessary to show that the statement was made in confidence and in the course of the required relationship. (See People v. Johnson (1969) 270 Cal.App.2d 204, 207 [the defendant did not adequately show either confidentiality or a clergy-penitent relationship]; cf. People v. Thompson (1982) 133 Cal.App.3d 419, 426 [making a point similar to ours but speaking in the disjunctive].) The law provides that the privilege does not apply to statements made, even in confidence, to a person who happens to be a member of the clergy but who is receiving the statements outside “the course of the discipline or practice of the clergy member’s church, denomination, or organization” (§ 1032). Accordingly, we must consider the clergy member’s role at the time of the communication—and Vining’s role was that of defendant’s friend. (See Johnson, at pp. 206-208 [robber fleeing crime scene made self-serving statements to minister he encountered; minister was dressed in business suit, statements were not penitential and robber was not church member; held, statements not privileged].) The privilege is limited to situations in which the speaker “confess[es] to a flawed act [in order] to receive religious consolation and guidance in return.” (Thompson, at p. 427.) The record does not show that Vining was prepared to provide consolation, solace, or guidance; rather, he was demanding to know by what right defendant could have betrayed him. He was a friend, albeit an indignant or perhaps a furious one.
Defendant’s statements to Vining were not entirely penitential, but rather were also partly self-serving. His acknowledgment that he had committed a single rape of the victim minimized his crimes, which included numerous sexual assaults and were therefore even more depraved.
We next conclude that no privilege existed because defendant did not ask Vining to keep their conversation confidential or exhibit any behavior showing an expectation of confidentiality. The lack of “a communication made in confidence” (§ 1032) also places defendant’s statements outside the scope of the penitent’s privilege. (People v. Thompson, supra, 133 Cal.App.3d at p. 426; People v. Johnson, supra, 270 Cal.App.2d at p. 207.)
Accordingly, we conclude that substantial evidence supports the court’s finding that no penitential communications defined by section 1032 took place in the jail interview room. Because Vining was acting as a friend and not as an intercessor with God, and, independently, because nothing in the record shows defendant sought or relied on a promise of confidentiality, the privilege is inapplicable. (§ 917, subd. (a).) Defendant’s claim of error under state law does not entitle him to relief on appeal.
II. Impeaching Defendant With Evidence of His Rape Fantasies
Defendant claims the trial court erred under sections 352 and 1101 in permitting him to be impeached, over his objection on those statutory grounds, with evidence that he had fantasized about rape and (renewing a claim he raised at trial) that he received ineffective assistance of counsel when his former counsel permitted the statements defendant made to an evaluating psychologist to become known to the prosecution.
Defendant further claims that the trial court’s asserted error in misapplying sections 352 and 1101 violated due process of law generally and unconstitutionally “lighten[ed] the prosecution’s burden of proof by the presence of inflammatory or misleading evidence.”
During the evaluation, defendant told the psychologist that he had fantasized in prison about raping women and, after using marijuana following his release from prison, had begun once more to experience rape fantasies. The psychologist reported these facts in his written report. Defense counsel did not seek to keep the report’s contents private, but authorized its public disclosure. At trial, the prosecutor used the evaluation to cross-examine defendant about whether he had had rape fantasies. Defendant testified, “Probably 15 years ago.” Defendant denied having had such fantasies since his release from prison in January of 2002.
A. Forfeiture
By failing to invoke the constitutionally based burden-lightening claim at trial, defendant has forfeited it. (See People v. Partida, supra, 37 Cal.4th at p. 435.) By contrast, defendant’s general due process claim, which he raises on appeal as an additional legal consequence of the court’s purportedly erroneous ruling, is not forfeited. (People v. Lewis and Oliver, supra, at p. 990, fn. 5; see id. at pp. 997, 1000, 1024, 1029, 1031, 1055.) In such a case, however, “rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (Id. at p. 990, fn. 5.)
B. Evidence Code Claims
At trial, the prosecutor used the statements defendant made to the psychologist to cross-examine him about rape fantasies. The prosecutor’s questions touched only on defendant’s mental state, not on prior specific acts. Accordingly, and as the prosecutor alluded to during a discussion about the admissibility of the evidence, section 1101 does not apply to the disputed proceedings.
Like the prosecutor before the trial court, the People note on appeal that defendant was not impeached by evidence of prior acts, but only on his thoughts. They are correct that because the impeachment involved only defendant’s thoughts, section 1101 does not apply. Section 1101, subdivision (a), provides that, subject to certain exceptions, character evidence, “whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct,” is inadmissible to prove “conduct on a specified occasion.” The evidence elicited from defendant did not involve opinion, reputation, or instances of conduct, but rather only his past thoughts about rape. Moreover, it has been held that admitting evidence of uncharged sex offenses does not necessarily offend section 1101. “[W]hen the uncharged offense evidences the emotion of sexual passion toward a particular individual the statutory exclusion is inapplicable.” (People v. Barney (1983) 143 Cal.App.3d 490, 494.) “Such evidence tends to prove defendant would act to realize his desire. It is not dependent upon defendant’s bad character or his disposition to do wrongful acts.” (People v. Brunson (1986) 177 Cal.App.3d 1062, 1068.) We find no infringement on defendant’s right under section 1101 to exclude character evidence. If an uncharged offense, which amounts to an instance of conduct, is admissible to show a particular sexually oriented mental state, admitting evidence of such a mental state directly cannot offend section 1101. Accordingly, we reject defendant’s section 1101 claim.
Although we have found no California decisional law directly on point, Texas courts, relying on similar statutes governing character evidence, have rejected claims similar to defendant’s because the prosecutor had inquired only into the defendant’s prior mental state and not the defendant’s prior conduct. In Massey v. State (Tex.Cr.App. 1996) 933 S.W.2d 141, the defendant had made statements that “he would like to kill a girl” (id. at p. 153) and had had grisly fantasies about the details of the crimes he envisioned committing (ibid.). The defendant claimed that the evidence of his statements was not admissible under the Texas equivalent of our section 1101, subdivision (b). The reviewing court found no error because “ ‘the statements concerning [the defendant’s] thoughts . . . were just that, inchoate thoughts. There is no conduct involved which alone or in combination with these thoughts could constitute a bad act or wrong, much less a crime. Absent this, [the defendant’s] statements concerning his desire to kidnap and kill [the other individual] did not establish prior misconduct and thus were not expressly excludable . . . .’ [Citation.] The complained of testimony pertained to appellant’s thoughts, not conduct. [The rule equivalent to section 1101, subdivision (b)] is not implicated.” (Id. at p. 154; see also Castillo v. State (Tex.App.-Dallas 2001) 59 S.W.3d 357, 361.) Although Massey focused (933 S.W.2d at pp. 153-154) on the similar-acts exceptions to the inadmissibility of character evidence that is equivalent to our section 1101, subdivision (b), the Massey court necessarily found that the evidence was not impermissible character evidence generally, as rule 404(a) of the Texas Rules of Criminal Evidence provides, in language at least as broad as that of our own section 1101, subdivision (a), that ordinarily “Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .” (Tex. Rules Crim. Evid., rule § 404(a).)
We turn to defendant’s section 352 claim. “In ruling on the question whether evidence is substantially more prejudicial than probative, the trial court enjoyed broad discretion.” (People v. Ayala (2000) 24 Cal.4th 243, 282; accord, § 352.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) It cannot be said here that the trial court’s ruling fell outside the bounds of reason. The evidence “tend[ed] to prove defendant would act to realize his desire.” (People v. Brunson, supra, 177 Cal.App.3d at p. 1068.) It was probative, and we cannot say that the trial court was unreasonable in finding it not to be so unduly prejudicial that it must be excluded.
C. Ineffective Assistance of Counsel
Nor can we agree that defendant received ineffective assistance of counsel.
As alluded to, former counsel asked for or at least acquiesced in the preparation of a publicly available report on defendant’s psychological condition. When defendant obtained new trial counsel, his new counsel moved to have his statements suppressed, in part because former counsel was ineffective in permitting the prosecution to obtain them.
The trial court denied the motion on the ground that “[t]here was a tactical reason for it. I can’t tell from the record what that might have been, however, in hindsight, illogical it seems, but there was a tactical reason for that . . . .” The court added that defendant, for reasons the court acknowledged were mysterious, had knowingly and intelligently waived his right to a private psychological evaluation.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) With regard to the prejudice prong of the ineffective assistance of counsel test, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) The Strickland standards also apply under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
“ ‘[I]f the record does not preclude a satisfactory explanation for counsel’s actions, we will not, on appeal, find that trial counsel acted deficiently.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 747.) In this case, however, former defense counsel admitted that he had no tactical reason for permitting the psychological evaluation to be made available to the prosecution. Former counsel told the trial court, “I obtained a public report, mistakenly thinking that Mr. Allen had given me the green light to do so. I would not have sought a public evaluation, one public to the District Attorney and the court, had I known Mr. Allen was objecting to it.” Moreover, even if defendant had not objected, indeed even if defendant had demanded the production of a public report, “counsel, as ‘captain of the ship,’ maintains complete control of defense tactics and strategies, except that the defendant retains a few ‘fundamental’ personal rights” (People v. Cook (2007) 40 Cal.4th 1334, 1343), and counsel could have said no. We agree with defendant that there was no tactical reason for permitting a report to be divulged without knowing what it might reveal. As it happened, the report was damning: the psychologist concluded that defendant did not suffer from any “major mental disorder or mood disturbance,” but rather that “[h]is behavior demonstrates a strong degree of psycho sexual deviance and sexually aggressive motivation for the rapes, pathologic egocentricity, limited empathy and remorse, and aggressive narcissism. He has exhibited a callous[,] remorseless use of others within a chronically unstable and antisocial lifestyle.” And he “is certainly at very high risk for recidivism with regard to rape behavior.”
Nonetheless, we discern no prejudice, i.e., no reasonable probability of a different outcome (Strickland v. Washington, supra, 466 U.S. at p. 694) had defense counsel acted in such a manner that the jury would not have heard evidence about defendant’s rape fantasies. There was strong evidence against defendant apart from that evidence. The victim testified in detail and at length about the multiple sexual assaults defendant committed. It was plain that defendant had stalked the victim and her partner. Defendant’s friend Ronald Vining, a minister and defendant’s benefactor in a number of ways, testified that defendant admitted raping the victim. The victim’s partner described the victim’s return to the house in disarray and distress. Defendant’s own testimony, that the victim consented to a bizarre staged sexual assault in order to have full custody of her child, made little sense on its own and was refuted by the rebuttal testimony of the victim and her son’s father. There is no reasonable probability that, but for counsel’s failure to take actions to keep the prosecution from learning of defendant’s rape fantasies, the outcome would have differed.
III. Denying Motion to Strike Prior-Conviction Allegations
Defendant claims that the trial court erred in denying his motion to strike allegations regarding sex-crime convictions he suffered in 1981 in San Mateo County. We do not agree.
In 1981, defendant was convicted in San Mateo County of committing forcible rape, forcible sodomy, and forcible oral copulation in 1980. His 1981 rape conviction was alleged in the information in this case as both a strike under the Three Strikes law and a serious felony under Penal Code section 667, subdivision (a). All three 1981 convictions were alleged as circumstances making defendant eligible for sentencing under the one strike law.
Prior to trial on the prior conviction allegations, defendant moved to strike the 1981 convictions or otherwise forbid any use of them for increased punishment. He filed a memorandum contending that the convictions were constitutionally infirm because the superior court in the prior case had erroneously instructed the jury with the 1981 version of the law for rape, forcible sodomy, and forcible oral copulation even though the crimes were committed in 1980. Defendant maintained that the San Mateo Superior Court’s action violated the prohibition against ex post facto laws (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) and his right to due process of law.
At a hearing on defendant’s motion, the prosecution argued that any attack had to be collateral, i.e., by a petition for writ of habeas corpus. The trial court denied the motion without specifying whether it was doing so on procedural grounds or on the merits.
It is unconstitutional to enhance a criminal defendant’s sentence with a prior conviction that was itself obtained in violation of the Constitution. (Burgett v. Texas (1967) 389 U.S. 109, 114-115.) The question is the forum in which constitutional challenges to strike allegations based on prior convictions must be presented.
In Burgett v. Texas, supra, 389 U.S. at pages 114-115,the United States Supreme Court applied this rule to preclude use of a prior conviction for recidivist sentencing when the defendant was not afforded the right to counsel (see Gideon v. Wainwright (1963) 372 U.S. 335). Obviously, Gideon error is structural (see U.S. v. Gonzalez-Lopez (2006) __ U.S. __, __ [126 S.Ct. 2557, 2564]) and ordinarily would appear on the face of the record, and any court later considering the validity of a conviction obtained in violation of Gideon need do no more than verify the obvious.
Custis v. United States (1994) 511 U.S. 485, held that a criminal defendant may not move in federal court to strike an alleged prior conviction on any ground other than Gideon error. (Id. at p. 496.) This sole exception was based on (1) the Court’s recognition of the denial of counsel as a “unique constitutional defect” (ibid.), which was also “a jurisdictional defect” (ibid.); (2) the “[e]ase of administration” in identifying Gideon error, which would “generally appear from the judgment roll itself, or from an accompanying minute order” (ibid.); and (3) the government’s interest in the finality of judgments (id. at p. 497). In Garcia v. Superior Court (1997) 14 Cal.4th 953, our Supreme Court agreed with Custis and disapproved the motion to strike procedure in a non capital-case challenge to a prior conviction on the ground that the prior guilty plea was induced by ineffective assistance of counsel. Garcia held that the defendant was not entitled to use the procedure as a matter of federal or state constitutional law, and declined to create a judicially established rule of criminal procedure authorizing the procedure. (Id. at pp. 963-965.) “[W]e conclude that, in a current prosecution for a non capital offense, the interest of judicial efficiency does not justify a rule of criminal procedure requiring that trial courts entertain motions to strike based upon the constitutional ground of ineffective assistance of counsel.” (Id. at p. 966; cf. People v. Horton (1995) 11 Cal.4th 1068, 1134 [declining to impose strictures similar to Custis but only “in a capital proceeding, upon a prior conviction that the prosecution has alleged as a special circumstance rendering the defendant eligible for the death penalty”].)
People v. Allen (1999) 21 Cal.4th 424, held as a matter of policy that defendants may continue to use the motion to strike procedure to challenge prior convictions on Boykin-Tahl grounds (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122), i.e., the well-known decisions requiring that defendants be informed of and voluntarily and intelligently waive a number of constitutional trial rights before pleading guilty. (Allen, at pp. 442-443.) Utilizing Custis’sease-of-administration reasoning, Allen noted that in post-Tahl cases “trial courts were on notice that ‘the record must contain on its face direct evidence that the accused was aware, or made aware’ ” of the defendant’s Boykin-Tahl rights. (Allen, at p. 443.) “Thus, permitting defendants to raise a Boykin-Tahl claim in a motion to strike at trial would entail little disruption; a quick review of the transcript of the sentencing hearing may be all that is necessary.” (Id. at p. 442.)
Defendant asserts that the only limitation apparent from People v. Allen, supra, 21 Cal.4th 424,is that the constitutional issue must be one that can be resolved easily from the face of the record. That may be, but such an interpretation of Allen would not benefit defendant. Although referring to the record of the 1981 San Mateo County proceedings against defendant could confirm what instructions were actually given, much more record-reviewing work would yet be required of the trial court. When “an instruction violates the ex post facto bar, the error is of federal constitutional dimension, review able under the Chapman harmless-beyond-a-reasonable-doubt standard.” (People v. Farley (1996) 45 Cal.App.4th 1697, 1710, fn. omitted referring to Chapman v. California (1967) 386 U.S. 18, 24.) And to the extent that defendant’s claim would require the court to consider instructional error as to an element of the offense, that also is subject to harmless error analysis under Chapman. (See People v. Cox (2000) 23 Cal.4th 665, 677, fn. 6 [instructional error misstating an element]; People v. Sandoval (2007) 41 Cal.4th 825, 838 [instructional error omitting an element].) Review for prejudice under Chapman could have required the court herein to review much or all of the prior proceedings to determine whether any error was “ ‘unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] . . . [T]he focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’ ” (People v. Neal (2003) 31 Cal.4th 63, 86.) The effective administration of criminal justice would not be furthered if the court below had been required to engage in such a potentially cumbersome analysis during the course of proceedings on the current offense. We doubt that the California Supreme Court would conclude that such an undertaking would mesh with “the smooth and efficient operation of their trial courts” (People v. Allen, supra, 21 Cal.4th at p. 442). Defendant must proceed by way of a petition for writ of habeas corpus if he wishes to challenge the constitutional validity of his 1981 convictions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.