Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026001
SIMS, Acting P. J.A jury convicted defendant Jesse Mendoza Olivares of forcible rape (Pen. Code, § 261, subd. (a)(2)), and the court sentenced him to six years in prison.
On appeal, defendant contends the exclusion of a prior sexual assault allegation by the victim violated his rights to due process and confrontation, and there is insufficient evidence to support his rape conviction. We shall affirm.
BACKGROUND
In August 2006, 23-year-old B.R. was in the process of moving out from her Chico apartment to her parents’ home. Defendant was one of her neighbors, and she was friends with his two daughters. B.R. had met defendant twice, briefly speaking to him each time. She never flirted with him, and did not believe he flirted with her.
On August 29, defendant’s daughters came to B.R.’s apartment so she could help one of them with math homework. After B.R. finished tutoring, defendant came to her apartment and told the girls to go home. He closed the door after they left and thanked B.R. for helping them. Defendant then offered to pay her, which she refused.
Defendant tried to give B.R. $20, which she declined as too much, but defendant insisted that she take it. He then asked if he could give her a thank-you kiss for helping his daughters. B.R. refused, but she relented after defendant kept asking for a little kiss.
Defendant did not kiss B.R. on the cheek as she expected, but instead kissed her on the mouth. B.R. responded by saying no to defendant, but he kept kissing her even though she kept saying no.
At first defendant kissed B.R. with only his lips, but then he grabbed her tongue with his teeth, causing her to freeze up. As defendant French-kissed B.R., she had her hands on defendant’s shoulders, but could not push him away because she was too scared. Defendant put his hand in her pants, and then led her to the mattress on the living room floor. With his hand around her arm or back, defendant guided B.R. to the mattress, put his hand on her shoulder, and set her down.
B.R. wanted to run away but could not. Defendant took off B.R.’s pants and unzipped his own. He lifted up her legs, knelt between them, and had intercourse with B.R. B.R. could not get away because defendant had her legs pinned and she was frozen with fear.
After defendant finished, he got up. B.R. curled into a ball and started to cry. Defendant asked B.R. what was wrong, but she did not recall her response. Defendant then offered B.R. a drink, told her he would be coming back later that night, and left.
B.R. sat frozen for a moment before going to the bathroom in a daze. She started to wash her neck because defendant had kissed it and she felt dirty. After B.R. realized what she was doing, she stopped and asked her neighbor Susie to come over.
After Susie got to B.R.’s apartment, B.R. told her what had happened. Susie took B.R. to her apartment, and after B.R. calmed down a little, Susie called the police.
Asked if defendant had sex with her, B.R. said no, as she does not know him and he is married. To B.R., sex is “something you do with someone you love and want to spend the rest of your life with.”
B.R. moved to her parents’ home after the incident. She had a panic attack one day when her mother dropped her off at the parking lot by her work. She was crying and panicked, saying, “Mom, please don’t ever leave me alone again like that” because she was afraid defendant would pull up and recognize her.
On August 30, B.R. told her mother she had been raped. She was “crying, sobbing, shaking, just really distraught about the situation.” B.R.’s mother admitted her daughter can be easily influenced by people who are nice to her, and can end up doing something she normally would not do.
Butte County Sheriff’s Deputy Silver Paley was dispatched to the scene and found B.R. at Susan Lewis’s apartment. B.R. was on the couch and had a calm demeanor, but appeared distraught or emotional, as if she had just finished crying. B.R. did not tell Deputy Paley there was a struggle, nor did she say she had been restrained.
On August 30, Deputy Paley talked to defendant near his residence. Defendant admitted knowing B.R. and going to her apartment on August 29 to thank her for helping his children. B.R. invited him in; he thanked B.R. by giving her $20, and she kissed him on the cheek. Defendant told the deputy nothing inappropriate happened and he denied having intercourse with her.
Defendant was interviewed by Butte County Sheriff’s Detective Eric Christopher on August 31. Defendant said he went to B.R.’s place to thank her for helping his children with their homework, and B.R. started to hug and kiss him. After B.R. took her pants off, they went to the mattress and had intercourse.
The sexual assault examination was consistent with B.R.’s verbal history of the incident and with consensual sex. Defendant’s DNA was identified from the sexual assault kit.
DISCUSSION
I.
Defendant contends the court’s ruling deprived him of evidence critical to impeaching B.R., a violation of his rights to due process and confrontation. We disagree.
A.
The People filed a motion in limine to exclude any evidence of prior sexual conduct offered under Evidence Code section 782. Defendant later filed a sealed motion pursuant to Evidence Code section 782 to admit evidence of a prior accusation of sexual assault made by B.R. against a man named Kyle.
At the hearing on the motion, B.R.’s sister C.L. testified that in 2003 she knew a man named Kyle. She could no longer remember Kyle’s last name, but knew he was an alcoholic and 36 or 37 years old at the time.
One evening, Kyle was in the house with B.R. and C.L. while their parents were out of town. After the three ate dinner and watched television in the living room, C.L. decided to go to sleep in her parents’ room. B.R. and Kyle were in C.L.’s bedroom, which was a converted front porch.
C.L. went to bed, but it got very quiet, so she knocked on her bedroom door, saying, “you guys better stop what you’re doing right now” or she would walk in. C.L. suspected sexual activity because B.R. and Kyle had been “friendly with each other,” acting “like little 6 graders do[.]”
1060, 1124.)
C.L., accompanied by Kyle and B.R., walked outside to smoke a cigarette. She told Kyle he had better not take B.R.’s virginity, and he nonchalantly said it was okay. C.L. then told Kyle that B.R. had a disability and he had better not mess with her. C.L. sent B.R. upstairs to her room, and C.L. went to sleep.
C.L. noticed her bedroom door was closed when she woke up in the morning. Deducing that Kyle and B.R. were there, she knocked on the door and told them to get up. Kyle said, “Yes, we’re in here.” A couple of minutes later, B.R. and Kyle emerged from the bedroom dressed.
An upset and visibly angry C.L. did not notice if B.R. was upset. She reiterated to Kyle that B.R. “is a virgin and you better not take her virginity away[.]” B.R. later told C.L. they had been in bed naked together.
While they were in the bathroom, a shocked B.R. exclaimed to C.L. that she was bleeding, and later admitted to having sex with Kyle. C.L. then stormed out of the bathroom and told Kyle to pack up because they were leaving. C.L. was upset because B.R. did not sound as if the sex had been consensual. C.L. never gave B.R. a chance to explain or to tell her if it was rape.
C.L. drove Kyle to his home in Sacramento and never contacted him again. Nothing much was said during the drive, and C.L. never reported the incident to law enforcement.
B.R. got herpes from Kyle, requiring her to go to the emergency room about two weeks after the incident. A week earlier, their mother told C.L. that Kyle had raped B.R.
B.R. testified that she was sexually assaulted by Kyle at their parents’ home. C.L. had brought Kyle over and the three talked and watched movies together. C.L. went to bed while Kyle and B.R. stayed up together. She and Kyle first sat in the dining room and watched television, later moving to the living room. After that, Kyle took B.R. into the guest room and raped her. B.R. testified, “It wasn’t sex, he raped me.”
B.R. believed C.L. heard what had happened because she came to the bedroom and said, “what the hell is going on” before B.R. went to bed. She remembered bleeding a lot and telling her sister that she had bled. She did not tell C.L. that Kyle had raped her.
B.R. stated that within two to three weeks of the incident, she was in so much pain her mother took her to a clinic, where she learned that she caught herpes from Kyle. B.R. did not want anyone to know, so it took her another month or two to tell her mother that Kyle had raped her. She did not want her mother to know because the same thing had happened to her.
At the time of the incident, B.R. said “stop,” but Kyle did not stop. It took about a week for it to register in her mind that she had told Kyle to stop. She did not recall whether Kyle did not hear her or did not want to hear her, but he did not stop, so B.R. considered it rape.
The trial court excluded the evidence under Evidence Code section 352, finding the slight probative value in the delay between the incident and B.R. determining it was rape was outweighed by the danger of prejudicing and confusing the jury.
B.
The Attorney General asserts defendant forfeited his constitutional claims by failing to present them to the trial court.
“Where ‘it appears that (1) the appellate claim is the kind that required no trial court action to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court’s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution[,]... defendant’s new constitutional arguments are not forfeited on appeal. [Citations.]’” (People v. Gutierrez (2009) 45 Cal.4 789, 809.)
1447, 1457-1458.) B.R.’s prior accusation is not false on its face, and defendant did not present a denial from Kyle or any other extrinsic evidence tending to prove it was false. Lacking even a colorable claim by defendant that the prior accusation was false, neither the Confrontation Clause nor due process entitled him to present it to the jury.
Defendant’s motion to admit the prior sexual conduct evidence contains the following statement: “‘“[C]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”’” (Quoting Farrell L. v. Superior Court (1988) 203 Cal.App.3d521, 526.) The statement in Farrell L. is taken from a United States Supreme Court decision interpreting the Confrontation Clause, Davis v. Alaska (1974) 415 U.S. 308, 316 [39 L.Ed.2d 347, 353], and Farrell L. itself addresses a Confrontation Clause claim. (Farrell L., supra, 203 Cal.App.3dat p. 526.) Defendant’s motion also states that Evidence Code section 352 must bow to defendant’s due process right to a fair trial and present relevant evidence on his behalf.
Defendant’s motion to the trial court directly asserted a due process right to present evidence and implicitly presented a Confrontation Clause claim, preserving his constitutional claims on appeal.
C.
“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’... Confrontation means more than being allowed to confront the witness physically.... ‘[A] primary interest secured by it is the right of cross-examination.’ [Citation.]” (Davis v. Alaska, supra, 415 U.S. at p. 315 [39 L.Ed.2d at p. 353].)
“However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998) 18 Cal.4 894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4 390, 421, fn. 22.)
463, 510; People v. Ochoa (1993) 6 Cal.4
1199, 1206.)
While a defendant also has the due process right to present evidence on his or her own behalf (Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 645]), there is no meaningful analytical distinction between this and the right to confrontation. Defendant’s right to due process does not deprive trial courts of a “‘wide latitude’ to exclude evidence that is ‘repetitive..., only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’ [Citation.]” (Id. at pp 689-690 [90 L.Ed.2d at p. 644].) Exclusion of evidence that does not violate due process does not violate the right to confrontation.
It is true a victim’s false accusation of rape or assault is relevant to the issue of his or her credibility. (See, e.g., People v. Franklin (1994) 25 Cal. App.4 328, 335; People v. Adams (1988) 198 Cal.App.3d10, 18.) The defendant must, however, first sufficiently establish that the prior accusation was actually false. (People v. Alvarez (1996) 14 Cal.4 155, 201.) And even then, “[u]nder Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4
1015, 1027.) The applicable question is whether defendant used force sufficient to accomplish intercourse with the victim against her will, not whether the force was sufficient to overcome her physical strength and ability to resist. (Id. at p. 1028.)
847, 855-856.) “The kind of physical force is immaterial; it may consist in laying hold of and kissing a woman against her will.” (People v. Cicero (1984) 157 Cal.App.3d465, 475; see People v. Bradbury (1907) 151 Cal. 675, 677 [for assault with intent to commit rape, “‘“The kind of physical force is immaterial; ... it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will”’”].)
“Defendant’s problem... is that it is not readily apparent that” the prior accusation of rape was false. (People v. Tidwell (2008) 163 Cal. App.4
II.
Defendant claims there is insufficient evidence of force or fear to support his conviction for forcible rape. (Pen. Code, § 261, subd. (a)(2).)
In considering a sufficiency of the evidence claim, we view the evidence in the light most favorable to the judgment, presume in support of the judgment every fact which may be reasonably deduced from the evidence, and “determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]” (People v. Davis (1995) 10 Cal.4
Defendant argues that since defendant did not strike, restrain, or threaten B.R., and she did not struggle against him, there was no evidence of the force necessary to support a rape conviction. He claims, “We have, at most, a bare lack of consent or willingness (and not expressed openly) to engage in the acts but not the excessive quantity of force” required by Penal Code section 261, subdivision (a)(2). He is mistaken.
After dismissing his children and closing the door to B.R.’s apartment, defendant repeatedly asked B.R. for a kiss. When she finally relented, B.R. reasonably expected a kiss on the cheek from a married man she hardly knew. After defendant exceeded B.R.’s consent by kissing her on the mouth, B.R. expressly told defendant no. Defendant responded by continuing to kiss B.R. and she continued to say no. In spite of the protests, defendant escalated the encounter, biting her tongue, and then kissing her more aggressively as she continued to say no. He then guided B.R., who was frozen with fear, to the mattress, where he laid her down, took off her pants, pulled up her legs, and had intercourse with B.R. against her will.
“The gravamen of the crime of forcible rape is a sexual penetration accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. As reflected in the surveyed case law, in a forcible rape prosecution the jury determines whether the use of force served to overcome the will of the victim to thwart or resist the attack, not whether the use of such force physically facilitated sexual penetration or prevented the victim from physically resisting her attacker.” (People v. Griffin (2004) 33 Cal.4
In a prosecution for rape, the requirement of force is minimal; all that is required is that which is sufficient to commit the act without the victim’s consent. (People v. Iniguez (1994) 7 Cal.4
By biting B.R.’s tongue after she said no and continuing the encounter over her repeated protests, defendant applied the force necessary to demonstrate he had intercourse with B.R. against her will. He continued to apply force as he escalated the encounter, guiding her to the mattress with his arm, laying her down on the mattress, and taking her pants off. Defendant continued to use force as he raped B.R., holding her legs up in a manner in which she could not move, even had she not been frozen with fear.
In short, substantial evidence of force supports defendant’s rape conviction.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.