Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F14017
Premo, J.
A jury convicted defendant Michael Patrick McClish of making criminal threats, assault with a deadly weapon, forcible sodomy (two counts), and forcible rape. It also found true a special allegation for purposes of a 15-years-to-life sentence enhancement that defendant personally used a dangerous or deadly weapon in the commission of the sodomy and rape counts. On appeal, defendant contends that (1) the trial court erred by admitting over objection pursuant to Evidence Code section 1108 (evidence of prior sexual offenses) evidence of assaults against witnesses I, II, and III, (2) the trial court abused its discretion by admitting over objection grounded on section 352 (exclusion of prejudicial evidence) evidence of the assaults against witnesses I, II, and III, (3) the trial court abused its discretion by admitting over objection grounded on section 352 evidence of prior sexual offenses against witness I, (4) he received ineffective assistance of counsel because his counsel failed to object to evidence about his sex fantasies, (5) the trial court abused its discretion by excluding his evidence that the victim had once accused another of rape and thereafter retracted the accusation, (6) the trial court abused its discretion by excluding his evidence that the victim had once falsely accused her boyfriend of rape, (7) the trial court abused its discretion by excluding his evidence that the victim had once assaulted her boyfriend and falsely accused him of assault, and (8) the evidence was insufficient to support the use-of-a-deadly-weapon finding. We disagree and affirm the judgment.
All further unspecified statutory references are to the Evidence Code.
BACKGROUND
Defendant worked as a shipping and receiving manager at the Ben Lomond Market. He lived near the market with his wife and three children. His victim worked as a checker at the market. She lived in Aptos with her mother and two children. Defendant and the victim began an affair in which they would rendezvous two to three times per week for sex at outdoor locations near Ben Lomond. The two professed to love each other. Defendant explained to the victim that he only married because his wife had become pregnant. He added that his wife understood his philandering. According to the victim, defendant filled a void in her life and made her feel good about herself. During the relationship and at defendant’s suggestion, the victim began spending time with defendant’s wife and three children. She and defendant’s wife became friends and socialized together. The victim visited defendant’s home and babysat defendant’s children.
As to the relationship, defendant was “controlling” and “manipulative.” He began “looking out for [the victim] in different ways” such as by warning her about people who might take advantage of her. He displayed jealousy by accusing her of cheating on him with other men. He behaved badly toward her by making her “feel like the dirt underneath a shoe.” He called her “idiot” and “stupid.” “He drank every day. Sometimes beer, sometimes whiskey, both. While he was at work, when he wasn’t at work. Just all the time.”
The victim eventually took a job at Liberty Bank in Boulder Creek, a town past Ben Lomond relative to Aptos. One day, she learned about a felled tree across Highway 9 blocking the way from Boulder Creek to Ben Lomond. When leaving for Aptos, she therefore took an alternate route on a “windy” and “scary” road. On a steep downgrade, her car started smoking and smelling of burning rubber. She pulled over and telephoned defendant. Defendant’s wife answered the telephone. The victim asked to speak to defendant. Defendant’s wife replied that “it’s probably not a good idea [to talk to defendant], you probably don’t want to, he’s in one of his moods again.” This meant to the victim that defendant had “a bad temper and everybody just kind of walked on egg shells when he was in these moods.” The victim related that her car had broken down and she needed help. Defendant’s wife offered that defendant should not be going anywhere because he had been drinking too much. But she nevertheless summoned him to the telephone. Defendant agreed to help the victim. When he arrived at the scene, he became angry because the victim was close to Highway 9 where she could have sought help from others. He then demanded to know who the victim “had been fucking with.” He finally looked under the car hood and pronounced that the car was fine. The victim wished to quell defendant’s anger, but defendant declined to talk to her. He instead directed her to drive and meet him at one of their nearby rendezvous places, which they referred to as “up top.”
At “up top,” defendant was angry and accused the victim of cheating on him. He pulled down his pants, showed the victim a blemish near his genitals, and exclaimed that he must have contracted the blemish from her. The two argued. Defendant then pushed the victim’s face onto his truck seat, grabbed a hatchet from behind the seat, held the victim in place with his arm across her back, put the hatchet blade against the back of the victim’s neck, and told the victim to tell the truth. He tugged at the victim’s pants as if “trying to get them down” making the victim believe that “he was going to rape [her].” The victim squirmed but could not get free. After 20 seconds, defendant let her go. The victim walked 20 feet to her car. Defendant came over to her, picked her up, held her over a cliff, “and told [her] to tell him the truth and that he could drop [her] down there and nobody would find [her] down there and that [her] kids wouldn’t have a mom.” After five seconds, defendant released the victim on the ground. The victim walked to her car. Defendant followed. He pushed the victim face down on the hood of her car, took her pants off, and “shoved [his penis] inside [her] butt as hard as he could as mean as he wanted while he was holding [her] down on [her] car.” He again demanded that the victim tell the truth. The victim affirmed she was truthful, struggled futilely, and begged defendant to stop. “Then [defendant] put[] his penis in [her] vagina and then back into [her] butt.” At some point, defendant stopped and the victim got in her car and left the scene.
SECTION 1108--WITNESSES I, II, AND III
Section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101 [generally prohibiting character evidence such as past conduct to prove that defendant committed the offense in question], if the evidence is not inadmissible pursuant to Section 352.” Under section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Section 1108 creates an exception in sex-offense cases to the prohibition in section 1101 against the use of character evidence to prove the defendant has a predisposition or propensity to commit the types of crime with which he is charged. (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) “By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations.” (Id. at p. 915.) Consequently, section 1108 permits the trier of fact to consider uncharged sexual offenses “ ‘ “as evidence of the defendant’s disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.” ’ ” (Falsetta, supra,at p. 912.) “With the enactment of section 1108, the Legislature ‘declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the [complaining] witness.’ ” (People v. Soto (1998) 64 Cal.App.4th 966, 983.) Indeed, “the reason for excluding evidence of prior sexual offenses in such cases is not because that evidence lacks probative value; rather, it is because ‘ “it has too much.” ’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 283.)
During in limine proceedings, the People sought an admissibility ruling as to sex offenses defendant had committed upon 11 other victims. None of the incidents had resulted in criminal convictions. After reviewing the People’s written motion, the trial court denied the motion subject to a hearing under section 402 (determining admissibility of evidence outside the presence of a jury) as to four proffered witnesses.
At the section 402 hearing, witness I testified to the following: she had worked at the Ben Lomond Market since 2002 and once had consensual sex with defendant; but, on another occasion when she went to help defendant load his truck with wood and while she was sitting on the edge of a table, defendant approached her as if to kiss her; she pushed him away but he roughly shoved her back on the table, grabbed her arms and put them behind her head, and pinned her down with his body so she could not move; he kept trying to kiss her but she turned her head away, told him to stop, and tried to push him off; she “was afraid that he might try to rape” her; after five or 10 seconds, defendant got off and told her that he was just trying to scare her. The prosecutor argued that the pinning incident constituted conduct proscribed by Penal Code section 220 (assault with intent to commit rape, sodomy, or oral copulation) or described by section 1108, subdivision (d)(1)(E) (a crime that involves deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another). Defendant argued that the pinning incident was “not a sexual assault with intent to commit a sexual offense.” He specified: “There’s no evidence he touched her in any private part or area. There’s no evidence he said anything that indicated he was going to commit a sexual offense.” He conceded that kissing was involved but argued that the behavior did not rise above an unwanted sexual advance given the existing relationship between the two and defendant’s voluntary cessation of the behavior. He also argued that the pinning incident was dissimilar to the charged offenses.
At the section 402 hearing, witness II testified to the following: she had worked at the Ben Lomond Market from 1993 to 1997 and once kissed defendant outside his home when she accompanied him there for lunch; she declined to continue kissing, and the two entered the home; defendant showed her the rooms; when he showed her a bedroom, he pinned her on the bed by placing her hands above her head and straddling her with his knees; she told him to get off, and he placed more pressure on her arms and body; she tried to push him off but could not; he asked her if she was scared; when she negatively responded, defendant’s demeanor hardened and she became scared; she “thought he was going to rape” her; she demanded that defendant get off and struggled for 10 to 15 minutes before he did. The prosecutor argued that this pinning incident also constituted conduct proscribed by Penal Code section 220. Defendant countered that “there is no evidence, again, that this is sexually motivated.” He specified: “There’s no touching of any--no groping or touching of any area or private part. There’s no comments made. Nothing indicates a sexual intent.” He also argued that the incident was dissimilar to the charged offenses. And he urged that the witness’s testimony would also be prejudicial because of her prejudice against defendant given the following: the witness acknowledged that she was aware of rumors connecting defendant to the murder of a pregnant woman and her prejudice could not be exposed to the jury without exposing the prejudicial rumor.
At the section 402 hearing, witness III testified to the following: she knew defendant when she was in high school in 1989 and had a crush on him; she once went to his home to see a room for rent when she was 17 years old; defendant directed her into a bedroom; he lay on the bed and demanded that she admit to having a crush on him; she denied having a crush on him; he got up, picked her up, threw her on the bed, and pinned her with his body; he told her in a frightening tone that he could tie her up or do to her whatever he wanted to her and she could struggle or scream all she wanted but no one would hear her; she struggled and demanded that defendant get off; he encouraged her to struggle; he would release his grip and let her struggle; at some point, they wrestled, she admitted having a crush on him, and she jumped off the bed with bruised wrists. The prosecutor argued that this incident also constituted conduct proscribed by Penal Code section 220 or described by section 1108, subdivision (d)(1)(E), given that defendant challenged the victim to scream, posed that he could tie her up or do whatever he wanted, and bruised her wrists. Defendant countered that he “was wrestling on the bed with this woman, telling her to admit she had a crush on him throughout. She did not. She would not. They continued wrestling. And when she does, he lets her up. That is not a crime. It’s not anything related to a sexual offense.” He continued that “he’s not doing anything sexual to her. He’s not fondling her. And as far as physical pain, if he’s deriving sexual pleasure or pleasure from physical pain, you’d think he would be doing something to cause her pain other than holding her down. There’s no indication that he’s hitting her or pinching her or doing anything like that and she’s in pain and that’s giving him pleasure.”
The trial court explained as follows: “As to each of these women who have testified in the [section] 402 hearings..., the Court finds that this is admissible under [section] 1108. The last one the Court had the most trouble with, but it’s similar to the activities that were testified to by the women yesterday, and I think that based on the location, based on the subject matter, based on the infliction of physical pain, that it does fall within [section] 1108[, subdivision] [(d)(1)(E)] for purposes of allowing it to come in, and subject to [section] 352, which is the weighing process and the inflammatory nature, the confusion, remoteness, consumption of time, misleading and distracting and the degree of certainty of its commission, as well as the other factors that we discussed yesterday that are set forth more completely in the Falsetta case.”
The People had argued that the evidence proffered from witnesses I, II, and III was also admissible under section 1101, subdivision (b), to show a common plan or scheme. In a further explanation of its ruling, the trial court found the evidence admissible on this theory also. But, during a later conference on jury instructions, the trial court recounted its ruling as admitting the evidence solely on the basis of section 1108.
The trial court later instructed the jury in the language of CALCRIM No. 1191 as follows: “The People presented evidence that the defendant committed the crimes of indecent exposure, sexual battery, assault with intent to commit rape and rape that was not charged in this case. These crimes are defined for you in these instructions. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the charged--strike that--committed the uncharged offenses. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt.... If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide the defendant committed the other sexual offenses, you may consider the evidence and weigh it together with all the other evidence received during the trial to help you determine whether the defendant committed forcible sodomy and rape. Remember, however, that evidence of another sexual offense is not sufficient alone to find the defendant guilty of forcible sodomy or rape. The People must still prove each element of forcible sodomy and rape beyond a reasonable doubt.”
Defendant contends that the evidence from witnesses I, II, and III “was insufficient to establish the foundational fact of a sexual offense as required pursuant to Subdivision (d)(1) of Evidence Code section 1108.” We disagree.
As previously mentioned, in a criminal action in which the defendant is accused of a sexual offense, section 1108, subdivision (a), conditionally permits the introduction of “evidence of the defendant’s commission of another sexual offense or offenses.” Subdivision (d)(1) of section 1108 defines the term “sexual offense” to mean “a crime... that involved any of the following: [¶] (A) Any conduct proscribed by [various enumerated Penal Code sections, including Penal Code section 220]. [¶]... [¶] (E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.”
Section 1108, subdivision (d)(1), specifically defines “sexual offense” as follows: “ ‘Sexual offense’ means a crime under the law of a state or of the United States that involved any of the following:
The parties agree that we are here reviewing the trial court’s determination “whether the evidence is sufficient to permit the jury to find the preliminary fact [prior sex offense] true by a preponderance of the evidence.” (People v. Marshall (1996) 13 Cal.4th 799, 832.)
Defendant does not dispute and tacitly concedes that the evidence was sufficient to permit the jury to conclude from the witnesses’ testimony that he “had a lascivious affinity for force.” But he disputes that such evidence is sufficient to conclude that he assaulted the women with intent to commit rape, sodomy, or oral copulation. He specifically urges as follows: “If it is clear from this evidence that [defendant] has a lascivious affinity for force, this simply was not enough to transform these assaults into a violation of Penal Code section 220. In a context in which [he] knew these women, in which these women were attracted to [him], and in which he knew them to be attracted to him, the abatement of these assaults far short of any objective act suggesting rape, sodomy, or oral copulation should have been decisive, even if these acts occurred in his bedroom or in the course of an attempt to steal a kiss. One may suspect that at some point in the respective struggles that [he] entertained the requisite mens rea, but the facts warrant only suspicion and, again, suspicion is not substantial evidence.”
But, if the evidence is sufficient to show that defendant assaulted the women having a lascivious affinity for force, it follows that the evidence is sufficient to permit the jury to find that defendant committed “a crime... that involved... [¶]... [¶] (E) [d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.” (§ 1108, subd. (d)(1)(E).)
Defendant disagrees. He claims that “The assaults allegedly committed against the three women were only assaults and did not qualify under any of the defined sexual offenses listed in subdivision (d)(1) of Section 1108.”
But the definition of a sexual offense in subdivision (d)(1)(E) of section 1108 does not require that a defendant commit a defined, listed sexual offense that involves deriving sexual pleasure, etc. It simply requires that a defendant commit “a crime” that involves deriving sexual pleasure, etc. Indeed, there would be no purpose for subdivision (d)(1)(E) if that definition required the underlying crime to be one already listed in subdivision (d)(1)(A). When interpreting a statute, “[w]e look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning.” (People v. Yartz (2005) 37 Cal.4th 529, 537-538.) “If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said.” (Id. at p. 538.)
Here, there is no ambiguity in the statutory language. And the statutory language has a plain meaning. In short, the evidence is sufficient to support that defendant committed a crime (assault) that involved deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person. Thus, the trial court correctly overruled defendant’s foundational objection to the evidence.
Defendant relies on People v. Walker (2006) 139 Cal.App.4th 782 (Walker) for the proposition that uncharged sexual offenses to be proved under section 1108, subdivision (d)(1)(E), must have “deriving sexual pleasure,” etc., as an element of the offense. This reliance is erroneous.
In Walker, the court considered whether evidence of prior sexual assaults was admissible under section 1108 in a case where the defendant was charged solely with murder. The facts of the case showed that the victim was a prostitute and the defendant had sexual contact with her near the time of her death; however, the parties stipulated that there was “no medically valid way to determine whether the sexual contact” was consensual. (Walker, supra, 139 Cal.App.4th at p. 790.) The trial court admitted evidence of the defendant’s prior sexual assaults on prostitutes under section 1108. “The Walker court summarized the issue before it as ‘whether section 1108, subdivision (d)(1)(E)’s inclusion in the definition of sexual offense of crimes that involve “[d]eriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person” authorizes use of evidence of other sexual offenses when the circumstances under which a violent crime has been committed suggest the defendant derived sexual pleasure or gratification from the victim’s pain, even though sexual pleasure or gratification is neither a necessary element of the charged offense nor alleged in the information as an enhancement or aggravating factor.’ [Citation.] The appellate court interpreted section 1108 as requiring ‘that the requisite sexual transgression must be an element or component of the crime itself without regard to the evidence establishing a specific violation.’ [Citation.] Under this standard, the court held that the trial court erred in admitting the evidence under section 1108.” (People v. Story (2009) 45 Cal.4th 1282, 1291-1292 (Story).) The Walker court reasoned that requiring the sexual component of the crime to be “an element of the charge (or applicable enhancement or aggravating factor) and not simply a circumstance of the crime’s commission,” was consistent with the ordinary meaning of the phrase “ ‘accused of a sexual offense’ ” used in section 1108. (Walker, supra, at p. 800.)
In Story, the court reversed a Court of Appeal judgment relying on Walker that had found prejudicial error in admitting evidence of other sexual offenses. Because the defendant in Story had been charged with felony murder having rape as the underlying felony, the court observed that the defendant had been charged with a sexual offense even under the Walker definition. It therefore noted the following: “We need not and, accordingly, do not decide whether Walker ... correctly interpreted section 1108.” (Story, supra,45 Cal.4th at p. 1292.) The court, however, went on to suggest that Walker incorrectly interpreted section 1108: “If other forms of sexual killing, such as killing while raping, are included in section 1108, subdivision (d)(1)(A), there would be no need to repeat those types of sexual killings elsewhere. It seems most reasonable to conclude... that section 1108, subdivision (d)(1)(E)’s ‘role is to capture a unique type of sexually motivated homicide not otherwise identified in other parts of the statute.’ ” (Story, supra, at pp. 1292-1293.)
In light of Story and the plain language of section 1108, subdivision (d)(1)(E), that defines a sexual offense as a crime that involves deriving sexual pleasure, etc.--not as a crime having the element of deriving sexual pleasure, etc.-- we disagree with Walker to the extent that it supports defendant’s proposition.
SECTION 352--WITNESSES I, II, AND III
“By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.] [¶]... [T]he probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.]... [T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term.” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Ultimately all of the relevant factors can be classified into two competing categories of effects. One is the tendency of the evidence to show that the defendant possessed a proclivity to engage in conduct of the same type as that involved in the charged offense, thus supporting an inference that he did in fact engage in the conduct alleged in the information. The other is prejudice, i.e., the tendency of evidence of wrongdoing to generate a sense of antagonism toward the defendant, ranging from distaste to indignation to outrage to shock, which in and of itself inclines the jury to convict the defendant regardless whether the actual charges are borne out by the evidence.
Defendant contends that the trial court abused its discretion by admitting the evidence of the assaults against witnesses I, II, and III. He asserts that the possibility of prejudice, confusion, or distraction of the jurors was so substantial and likely to outweigh the probative value of the evidence “that no other reasonable conclusion was possible except that the evidence should be, and therefore should have been, excluded.” He explains: “The evidence that allegedly established [his] intent to rape or sodomize [the witnesses] was highly debatable and equivocal. The evidence that [he] intended to, and did, rape and sodomize [the victim] was, if the acts occurred at all, definite and unequivocal. Thus, the situation is presented whereby the charged offenses prove the uncharged offenses, which thereby reflect a supposedly probative light back on the charged offenses.” Defendant’s analysis is erroneous.
It is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) And the trial court’s exercise of discretion on this issue will not be disturbed on appeal absent a clear showing of abuse. (Ibid.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Defendant simply fails to carry his burden on appeal. He merely reargues his position by relying on factors that arguably support his position (dissimilarity; weakness of witness-sexual-intent evidence) instead of focusing on the factors supporting the trial court’s decision and explaining why it was irrational to rely on those factors. Indeed, defendant overlooks the pivotal factor supporting the trial court’s decision. The trial court did not base its admissibility ruling on section 1108, subdivision (d)(1)(A), which lists assault with intent to commit rape and is the source of defendant’s argument about his sexual intent being “highly debatable and equivocal.” The trial court grounded the ruling on “the infliction of physical pain, that it does fall within [section] 1108[,] subdivision [(d)(1)(E)].”
In addition, section 1108 contains no predicate requirement that there be an unusually high degree of similarity between the prior and current offenses as defendant suggests. “It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 41.) The Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so would tend to reintroduce the strictures of prior law which the statute was designed to overcome “ ‘ “and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not ‘specialists,’ and commit a variety of offenses which differ in specific character.” ’ ” (People v. Soto, supra, 64 Cal.App.4th at p. 984, quoting Historical Note, 29B pt. 3, West’s Ann. Evid. Code (1998 pocket supp.) foll. § 1108, pp. 31-32.) Thus, similarity of the crimes is a consideration in the section 352 analysis required by section 1108, inasmuch as it is one of many factors for the trial court to consider when the evidence is offered pursuant to that section.
Moreover, defendant also fails to mention that the trial court could have rationally concluded that the potential jury impact of the witness-assault evidence was relatively benign when compared to the charged offenses given defendant’s point that evidence of his sexual intent vis-à-vis the witnesses was debatable and equivocal. Stated another way, whether the witness assaults were so outrageous so as to shock the emotions of the jury into using the evidence improperly is a highly subjective determination and necessarily dependent on other factors. In the ordinary case as here, the question provokes a difference of opinion rather than exposes irrationality. Defendant had the opportunity to point out the evidence’s weakness and argue its significance in light of that weakness. We add that whether two offenses are relatively similar for section 352 purposes is necessarily an opinion in a case such as this one where the charged and prior offenses have differences but also similarities (pinning and frightening). Properly considered, the arguable dissimilarities between the charged offenses and the assaults on witnesses I, II, and III cannot lead to a conclusion that the trial court abused its discretion when it admitted the prior-sexual-offense evidence. Similarity is simply a minor factor among several factors in the section 352 analysis.
The record demonstrates that the trial court applied factors outlined by the Falsetta court in determining the admissibility of the evidence. The trial court’s balancing of those factors is not open to reexamination simply because a factor could be construed to favor defendant. In summary, we do not entertain rearguments as to a trial court’s discretionary determinations.
Defendant suggests that the errors in admitting the evidence violated his constitutional right to due process. But, as we have pointed out, defendant has failed to demonstrate any error.
In any event, “the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules.” (Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6.) Accordingly, federal courts generally have rejected the blanket assertion that admission of uncharged misconduct evidence violates the due process clause (see, e.g., Dowling v. United States (1990) 493 U.S. 342, 352; Marshall v. Lonberger, supra, at p. 438; Spencer v. Texas (1967) 385 U.S. 554, 568-569; Ciucci v. Illinois (1958) 356 U.S. 571, 572; Watkins v. Meloy (7th Cir. 1996) 95 F.3d 4, 7), unless the state rule of evidence “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Patterson v. New York (1977) 432 U.S. 197, 202.) Defendant makes no argument along these lines.
SECTION 352--WITNESS I
Witness I also testified that, over the course of two or three years while at work, defendant grabbed her buttocks between five and 10 times, grabbed her breasts between five and 10 times, and exposed his erect penis and asked her to look at it.
At the section 402 hearing, defendant argued that the sexual battery offenses (grabbing) were dissimilar to the charged offenses. And he made no argument as to the indecent exposure offense. Here, defendant again reargues the dissimilarity point: “The disproportion between misdemeanor breast and buttocks grabbing in the workplace, even with the added relish of indecent exposure in the dairy box, is so disproportionate to the act of rape and sodomy, both in general and as described in this case by [the victim], that a conclusion of propensity to commit rape and sodomy from [witness I’s] evidence is simply impossible.”
Again, it is sufficient for relevancy purposes that the uncharged offenses are sex offenses as defined by section 1108. Again, defendant reargues his point without demonstrating the irrationality of the trial court’s decision. Again, defendant overlooks that the trial court could have viewed the uncharged offenses as relatively benign. And again, the record shows that the trial court properly weighed the factors relevant to a section 352 analysis, a function that is simply not open to reexamination.
INEFFECTIVE ASSISTANCE OF COUNSEL--SEX FANTASIES
A fourth witness testified during the in limine proceedings about being raped by defendant while they were dating and hearing defendant admit that her “hystericalness” excited him and her struggling “just made it better for him.” She also related that defendant told her about his sex fantasies that involved raping her friends and his pleasure in “being able to force somebody to do something and be able to control their actions.”
The People’s motion papers mentioned the sex fantasies, while defendant’s papers did not. The parties did not argue the sex-fantasy point. And the witness testified at trial consistently with her in limine testimony. During the conference on jury instructions, the trial court remarked that it did not recall the sex-fantasy evidence being part of the in limine proceedings. It clarified, however, that the evidence was not admissible under section 1108 or 1101 but under section 1220 as a party admission. Defendant never objected to the admissibility of the sex-fantasy evidence.
Defendant contends that he received ineffective assistance of counsel because counsel failed to object to the sex-fantasy evidence. There is no merit to this claim.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right “entitles the defendant not to some bare assistance but rather to effective assistance.” (Ibid.)
“To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 [(Strickland)].) ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid the distorting effects of hindsight and to evaluate the challenged conduct from counsel’s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland, supra, 466 U.S. at p. 689.) A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. (Strickland, supra, at p. 689; People v. Hart (1999) 20 Cal.4th 546.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.)
Defendant argues that the sex-fantasy evidence was inadmissible under sections 1108 and 1101 and, alternatively, under section 352. But the point here does not concern the admissibility of evidence. It concerns whether defense counsel had reason to refrain from objecting to the admissibility of evidence. The evidence was clearly competent under section 1220 as “a statement... offered against the declarant in an action to which he is a party.” And the evidence was relevant under section 210 as “having any tendency in reason to prove... any disputed fact that is of consequence to the determination of the action” given that it suggests that defendant enjoyed raping, which, in turn, tends to support a motive or intent vis-à-vis the victim. Thus, counsel may well have reasoned that any objection to the sex-fantasy evidence would be futile. (People v. Price (1991) 1 Cal.4th 324, 387 [an attorney’s failure to contest an issue does not constitute deficient representation if the attorney has reasonably determined that a contest would be futile].) We recognize that defendant disputes that the evidence was relevant as to motive or intent. But defendant’s disagreement reveals a difference of opinion rather than of law. Again, the failure to object rarely establishes ineffectiveness of counsel. An attorney may choose not to object for many reasons, our review is highly deferential, and we presume that counsel’s acts were within the wide range of reasonable professional assistance.
EVIDENCE THAT THE VICTIM HAD ONCE ACCUSED ANOTHER OF RAPE AND THEREAFTER RETRACTED THE ACCUSATION
During the in limine proceedings, defendant sought an admissibility ruling as to evidence that the victim had made “false claims of rape.” He supported his motion with two declarations of his attorney. The attorney declared that he was “informed and believed” that the victim had separately told two friends, M.D. and S.P., that she had been raped by a friend but, on a later occasion, told S.P. that she had not been raped but had instead engaged in a drunken one-night stand. The People opposed admissibility and submitted the transcript of a police interview with M.D. M.D. told the interviewer that the victim had told her that “she had been raped before,” “She was at a party and she got drunk and, um, she was raped,” “she used the word rape,” “she doesn’t remember it. Somebody just told her the next day,” and she was describing “[w]hat somebody else told her” about a “black-out kind of thing” “what somebody else told her. She doesn’t remember it.” When asked again whether the victim used the word “rape” to describe the incident, M.D. replied, “It sounded like that. I’m not sure if that was the word but that’s what, it was insinuated.” M.D. added that “it was one of [the victim’s] friends,” “she was upset about it,” and “it seemed like somebody had taken, taken advantage of her is what it was like.” When asked whether the victim said, “I was raped,” M.D. replied, “No, it wasn’t.”
The only evidence indicating that the victim had made and then recanted an accusation of rape was the hearsay declaration of defense counsel relating what S.P. said. As defendant summarized in the in limine argument: “[The victim] made statements to, according to [S.P.], statements to [S.P.] that she was raped and then said later, no, it was a drunken one-night stand.” The People objected to the testimony about S.P. as follows: “[Defense counsel] apparently has some sort of a statement that I’ve never seen regarding the second person that is in his supplemental declaration that has never been provided, and he’s making bald-face allegations here that she says that she said the complaining witness said the same thing. I don’t know what he’s talking about specifically....” Thereafter, defense counsel claimed that he had obtained the information about S.P. from the prosecutor, had obtained a report from S.P., had not provided it to the prosecutor, and could provide it at a later time. He then offered: “Well, Your Honor, I don’t know why it--it doesn’t seem to make a difference. We have one friend, [M.D.], who says in a report and transcribed statement ‘Did she tell you--did she say she was raped?’ She used the word ‘rape.’ The answer: ‘Yes.’ Later on, ‘Are you sure? Well, I don’t know. Maybe not.’ ”
The People argued that the evidence did not show that the victim made an accusation of rape that could, in turn, be false. They specifically urged as follows: “[The victim] did not specifically say she was raped. And she is asked that question directly and she said no, she did not say those words. She says it initially but then when asked about it... she specifically says no, she didn’t say that. So what she indicates is and what I believe the other witness indicates is that she drank too much on one occasion, had some sort of sexual encounter, felt, you know, upset about that sexual encounter, let down by somebody who was her friend and those sort of things. [¶] I don’t see how, frankly, there is any inconsistency or what the lie is that she’s allowed to be impeached with. The statements of the witnesses appear to be consistent with what the complaining witness says, and so because there’s no differences essentially or there’s no--I mean, in order to be impeachable it has to be false, and I don’t see the false part of it based on the facts that we know.”
Defendant replied that M.D. unequivocally said that the victim used the word “rape” and M.D.’s inconsistency “goes to the weight and not to the admissibility” and “should be presented to the jury to let the jury make the determination.”
The trial court denied defendant’s motion “because of its uncertainty... because that credibility is so subject to interpretation and is not clear that she in fact had inconsistent statements based on the [police] transcript....”
Defendant contends that the trial court abused its discretion by denying his motion and that the exclusion of the evidence “constituted a violation of the Sixth and Fourteenth Amendments of the United States Constitution.” According to defendant, the trial court erred in excluding evidence of the victim’s “false accusation of rape made to her friends [M.D.] and [S.P.], an accusation that she retracted when speaking to [S.P.] about it on another occasion. [Defendant] demonstrated that the evidence proffered was sufficient to establish that [the victim] had indeed made either an express or implied accusation.... This evidence, along with its other striking similarities of circumstantial detail to the instant case, was highly probative and its exclusion was seriously prejudicial to an outcome of the case favorable to [defendant].” There is no merit to this claim.
Section 1103 provides, in relevant part, as follows: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Section 780, subdivision (e), provides: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶]... [¶] (e) His character for honesty or veracity or their opposites.”
“[A] prior false accusation of rape is relevant on the issue of a rape victim’s credibility.” (People v. Franklin (1994) 25 Cal.App.4th 328, 335 (Franklin), citing People v. Adams (1988) 198 Cal.App.3d 10, 18.)
“The fact that a witness stated something that is not true as true is relevant on the witness’s credibility whether she fabricated the incident or fantasized it. [¶] The evidence therefore constitutes ‘any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing,’ including the extent of the witness’s capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness’s opportunity to perceive any matter about which he or she testified, and the existence or nonexistence of any fact testified to by the witness. (§ 780, subds. (c), (d) & (i).)” (Franklin, supra, 25 Cal.App.4th at pp. 335-336.)
“As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. (Evid. Code, § 352; [citation].) A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendant’s problem in showing that the trial court abused its discretion in excluding the evidence concerning the prior rape complaint is that it is not readily apparent that the victim even made a prior rape complaint. Although there was some evidence from M.D. that the victim used the word “rape” to describe the incident in question, M.D. also denied that the victim used the word. In any event, M.D. unequivocally stated that the victim had no recollection of the incident. From this, the trial court could have rationally concluded that the victim did not use the word or, if she had, she was repeating what others had told her about the incident. In either case, the trial court could have reasoned that the victim did not make a rape accusation or, as it articulated, whether the victim made a rape accusation was uncertain. Thus, the inference that the victim made a fabricated rape charge was weak. Undoubtedly, as implicitly recognized by the trial court, the matter would devolve into a mini-trial involving the victim and collateral witnesses (M.D., S.P., and whoever told the victim that she was raped) who would support and counter whether the victim accused an unknown person of rape, whether the victim was raped, whether the victim remembered the incident, and whether the victim recanted the accusation.
“The Supreme Court upheld a trial court’s exercise of discretion to exclude evidence pursuant to section 352 under facts similar to those presented here. (People v. Bittaker (1989) 48 Cal.3d 1046, 1097.) The court stated: ‘[A witness] testified that when she rejected defendant’s advances, he pulled a gun and said, “you wouldn’t argue if I pulled the trigger.” Defense counsel sought to impeach [the witness with] evidence that she had made false charges of sexual molestation against two other men. The trial court upheld an objection under Evidence Code section 352. Its ruling is not an abuse of discretion. The value of the evidence as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two long-past sexual incidents which never reached the point of formal charges. Such a proceeding would consume considerable time, and divert the attention of the jury from the case at hand.’ ” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1458 (Tidwell).)
In Tidwell, the court made a similar point: “The same is true here. Although there was some evidence that [the victim] made inconsistent statements, there was no conclusive evidence that her prior rape complaints were false. The defense was unable to obtain evidence from the men that [the victim] accused, and inferences could be drawn either way from the circumstances of the prior incidents and [the victim’s] statements concerning the incidents. In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that [the accused rapist] had raped another female student. We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the victim’s] prior complaints.” (Tidwell, supra, 163 Cal.App.4th at p. 1458.)
The same is true here. Defendant has simply failed to carry his burden to show abuse of discretion.
We also find no constitutional error. The state and federal constitutions guarantee a criminal defendant the right to confront and cross-examine witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) Those rights are violated when the government interferes with the exercise of a defendant’s right to present witnesses in his own defense. (People v. Mincey (1992) 2 Cal.4th 408, 460.) As a fundamental element of due process of law, a criminal defendant must be afforded a meaningful opportunity to present a complete defense, subject to the limitations imposed by the rules of evidence. (People v. Lucas, supra, 12 Cal.4th at p. 464.) Further, “Central to the Confrontation Clause is the right of a defendant to examine a witness’s credibility. See Davis [v. Alaska (1974) 415 U.S. 308,] 316; see also Boggs v. Collins, 226 F.3d 728, 736 (6th Cir.2000) (‘At the core of the Confrontation Clause is the right of every defendant to test the credibility of witnesses through cross-examination.’).” (United States v. Adamson (9th Cir. 2002) 291 F.3d 606, 612.) However, “The right to present exculpatory evidence has limitations. (Taylor v. Illinois [(1988)] 484 U.S. [400,] 410.) Rules of procedure governing the organized presentation of facts and allowing parties the opportunity to contradict or explain the opponent’s case must be adhered to.” (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.) Ordinarily, proper application of the rules of evidence do not impermissibly infringe upon the accused’s right to present a defense. (People v. Lucas, supra, at p. 464.) Although cross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude (People v. Brown (2003) 31 Cal.4th 518, 545), “Exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on the defendant’s right of confrontation.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 350.)
EVIDENCE THAT THE VICTIM HAD ONCE FALSELY ACCUSED HER BOYFRIEND OF RAPE
During the in limine proceedings, defendant sought an admissibility ruling as to evidence that the victim had made false claims of rape against her prior boyfriend. Defendant again supported his motion with his attorney’s declaration. The attorney declared that he was informed and believed that (1) the victim had told defendant’s wife that the victim was forced to have sex with the boyfriend shortly after the victim gave birth to her youngest child, and (2) the boyfriend would testify that he was in a dating relationship with the victim, had a child with her, and had never forced the victim to have sex with him.
The trial court considered and denied defendant’s motion without hearing specific arguments or giving a specific explanation.
Defendant contends that the trial court abused its discretion by denying his motion. But, again, he simply fails to carry his burden to demonstrate an irrational decision. The forced-sex evidence was a “he said”--“she said” scenario. To determine whether forced sex had indeed occurred, the parties would necessarily be required to conduct a mini-trial delving into the nature of the couple’s relationship, the credibility of each accuser, what the victim said to defendant’s wife, and the credibility of defendant’s wife. It is simply not irrational to decide against admission of such evidence.
EVIDENCE THAT THE VICTIM HAD ONCE ASSAULTED HER BOYFRIEND AND FALSELY ACCUSED HIM OF ASSAULT
During the in limine proceedings, defendant sought an admissibility ruling as to and the People sought to exclude evidence that the victim had made false claims of domestic violence against her prior boyfriend. The People proffered a summary of a sheriff’s report about the incident. The summary indicated that (1) the victim and boyfriend lived together with their three-month-old daughter and the victim’s six-year-old daughter, (2) the two were having relationship problems, and (3) one evening, the two discussed their relationship in their home. The summary then continued with the victim’s recount of events: (1) the victim made a comment provoking the boyfriend to tell her to “shut the fuck up” and place his arm against her throat, (2) the victim became frightened and hit or grabbed the boyfriend, (3) the boyfriend called the victim a “fat whore” provoking the victim to hit the boyfriend, (4) the boyfriend held the victim against a wall and slammed her head against it, (5) the two went outside, the victim went back inside, and the boyfriend forced his way back inside, (6) the boyfriend pushed the victim onto a bed, poured water on her, and began choking her, and (7) the boyfriend left the victim with multiple visible injuries. The summary then continued with the boyfriend’s recount of events: (1) the boyfriend told the victim to shut up and called her a “fat whore,” (2) the victim slapped the boyfriend and squeezed his testicles with both hands, (3) the boyfriend grabbed the victim’s wrist and twisted it, (4) the boyfriend went to the bedroom, (5) the victim followed, punching the boyfriend in the back of the head and back, (6) the boyfriend pushed her away and defended himself, (7) the victim squeezed his testicles again and smeared a diaper on him, and (8) the boyfriend left the home and the victim struck him in the back of the head with shoes and clothing. The summary added that neither person sought medical attention, the boyfriend called the police the next day, and no charges were filed against the victim. The summary also reported that the boyfriend said that he had never known the victim to lie to him but now believed that the victim was dishonest given her conflicting story. It added that the boyfriend admitted that the two were “fairly intoxicated” during the incident in question.
The trial court commented: “I think in this case the defense has also asked for other evidence to impeach that dealt with a prior boyfriend, the father of one of her children, dealing with domestic violence, and my indication was to keep that out, as well as the incident dealing with the forced sex that apparently she had had with that same boyfriend for the reasons perhaps set forth in the Alvarez case as it relates to that.” Later, after hearing defendant’s reasons for offering the domestic violence evidence, it granted the People’s motion and denied defendant’s motion. It explained: “I’m excluding it on the basis of the factors of--that it may very well be confusing. It’s inconsistent. There’s no real way of saying whether this actually occurred as reported by the victim or as indicated by [the boyfriend], and therefore again it’s prone to speculation as to what actually took place on that occasion.” It added: “I just think that it would--the time to delve into this and the confusion it might leave within this case overweighs any probative value it might have for impeachment purposes or showing violence on her part.”
Defendant contends that the trial court abused its discretion by excluding the evidence. But he, again, fails to carry his burden to demonstrate an irrational decision. The domestic-violence evidence was another “he said”--“she said” scenario. To determine whether the incident had indeed occurred, the parties would necessarily be required to conduct a mini-trial delving into the nature of the couple’s relationship, the credibility of each accuser, the degree of intoxication of each accuser, the credibility of the sheriff’s investigator and report, why neither party sought medical attention, what the boyfriend said the next day to the sheriff, and why no charges were filed. The trial court specifically cited this uncertainty and collateral complexity as a reason to exclude this evidence. It is simply not irrational to decide against admission of such evidence under these circumstances.
USE-OF-A-DEADLY-WEAPON EVIDENCE
Penal Code section 667.61, subdivisions (b), (c), and (e), together mandate a 15-years-to-life sentence for any person who commits specified sex offenses, including rape and sodomy, by “personally us[ing] a dangerous or deadly weapon or a firearm in the commission of the present offense.” (Pen. Code, § 667.61, subd. (e)(4).)
Defendant contends that “there was insufficient evidence to establish that [he] ‘used’ the hatchet ‘in the commission of’ the rape and sodomy, which were distinct crimes from the assault with a deadly weapon, which was complete and terminated by the time that the rape and the sodomy began.” According to defendant, the events at “up top” show that defendant assaulted the victim with the hatchet to make her confess cheating and the later rape and sodomy were temporally separated: “The assault with the hatchet, the assault in which he held her over the cliff, and the sexual assault were all subsumed to this purpose [obtain a confession]. However, there was no evidence of the further subordination of the assault with the hatchet to the accomplishment of the rape. Both were equal means to an end and each was incidental to the other.” Defendant’s analysis is erroneous.
Whether a defendant used a weapon or inflicted great bodily injury in the commission of an offense is a question of fact for the jury to decide. (See People v. Masbruch (1996) 13 Cal.4th 1001, 1007(Masbruch) [firearm use].) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support the [use enhancement].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The question is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The appellate court decides only whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving guilt beyond a reasonable doubt. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In applying this test, the appellate court must presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 578.) We review the record in the light most favorable to the prosecution to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
The California Supreme Court has held that the phrase “ ‘in the commission of’ ” for purposes of weapon-use enhancement statutes must be “ ‘broadly construed.’ ” (Masbruch, supra, 13 Cal.4th at p. 1007.) This expansive interpretation has also prevailed in cases interpreting great bodily injury enhancements. (See, e.g., People v. Carroll (1970) 1 Cal.3d 581, 584-585.)
Masbruch provides an example of the evidence needed to uphold a jury’s finding of a weapon-use enhancement. There, the defendant came to the door of the victim’s apartment to apply for a vacant apartment. After entering the apartment, he pointed a gun at the victim. He had the victim lie on the floor in the kitchen where he hogtied her. The victim’s mother came downstairs. The victim told the mother to do whatever the defendant said because he had a gun. The defendant tied the mother to a chair. Next, he searched the apartment for money and valuables, receiving directions from the victim and mother. He proceeded to shock the victim and mother with spliced electrical cords before raping and sodomizing the victim. The victim saw the defendant going through the butcher knife drawer; she thought maybe his gun was broken and he was now going to slit their throats. The defendant left and the victim called the police. Except for the initial display of the gun, the victim did not see the gun again during the encounter. The defendant was convicted of numerous crimes and it was found he used a firearm “in the commission of” the rape. On appeal, the defendant claimed “he did not ‘use’ the gun ‘in the commission of’ the sex offenses because he displayed it only at the outset of his criminal activity, approximately one hour before he committed the sex offenses, and he left [the victim] several times during the interim to commit crimes in other parts of the house.” (Masbruch, supra, 13 Cal.4th at p. 1006.) The Supreme Court disagreed.
First, as we have noted, the court stated that it is a question of fact for the jury whether a gun was used in the commission of an offense. (Masbruch, supra, 13 Cal.4th at p. 1007.)
Second, the court explained as follows: “In considering whether a gun use occurred, the jury may consider a ‘video’ of the entire encounter; it is not limited to a ‘snapshot’ of the moments immediately preceding a sex offense. Thus, a jury could reasonably conclude that although defendant’s presence with the victims was sporadic, the control and fear created by his initial firearm display continued throughout the encounter.” (Masbruch, supra,13 Cal.4th at p. 1011.) It then noted that, although the defendant had displayed the gun only at the beginning of his encounter, the victim was in a continuous state of helplessness engendered directly by the initial gun display. The defendant’s display put him in control, and the jury could reasonably conclude that the gun was utilized as an aid in completing the sex offenses. (Ibid.) Thus, by enabling control of the victim, the use of a deadly weapon, even well before sexual contact, can constitute a use in commission of the offense, even though the weapon is not displayed again during the act. (Id. at pp. 1006, 1011.)
Masbruch applies here. Looking at a “video” of the entire encounter instead of a “snapshot” of the moments immediately preceding the rape and sodomy, the following facts appear: defendant isolated the victim in his truck, put a hatchet on her neck, and demanded that the victim confess to cheating; he tugged at the victim’s pants, instilling in the victim a fear of rape; he then held her over a cliff and demanded that the victim confess to cheating or risk being dropped; he next pushed the victim face down on the hood of her car and committed the sex offenses, still demanding that the victim confess to cheating. The victim unquestionably knew that the hatchet was available to defendant at all times. This aided defendant by keeping the victim fearful and unresistent.
On these facts, a jury reasonably could find that the control and fear created by defendant when he put a hatchet to the victim continued throughout the ordeal and that defendant utilized the hatchet as an aid for his crime spree. Thus, broadly construing the enhancement as we must, the evidence is sufficient to support the jury’s finding that defendant used a deadly weapon in the commission of the sex offenses. Defendant’s claim amounts to a jury argument rather than an appellate argument.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
“(A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code.
“(B) Any conduct proscribed by Section 220 of the Penal Code, except assault with intent to commit mayhem.
“(C) Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.
“(D) Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
“(E) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person.
“(F) An attempt or conspiracy to engage in conduct described in this paragraph.”