Opinion
A147425
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. DEMETRIUS THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR222804)
Defendant Demetrius Thompson appeals a judgment entered upon a jury verdict finding him guilty of forcible rape (Pen. Code, § 261, subd. (a)(2)), second degree robbery (Pen. Code, § 211), and dissuading a witness (Pen. Code, 136.1, subd. (b)(1)). Defendant was sentenced to the high term of eight years in prison for the rape (Pen. Code, § 264, subd. (a)), with concurrent sentences for the other offenses. He contends the trial court erred in excluding evidence that the victim continued working as a prostitute after the crimes. We shall affirm the judgment.
I. BACKGROUND
A. The Victim's Testimony
The victim of the crimes, R.B., was working as a prostitute in Vallejo. At approximately 6:00 a.m. on the morning of September 2, 2014, she was at a gas station. Defendant approached and asked if she would have sex with him for $20. She refused. He then asked if she would give him a "hand job" for $20, she agreed, and they went into an alley. Defendant held out money; as R.B. reached for it, defendant grabbed her, put his hands over her mouth and around her throat, and told her he would kill her if she screamed. He took her cell phone and put it in his pocket. He pulled down her pants and raped her. He shoved her onto the ground and continued to rape her vaginally, moving her position from her knees to her back, and then again to her knees. At one point during the incident, he attempted anal intercourse, but desisted when she began crying noisily, and returned to raping her vaginally. He told her to call him "daddy" and said she was his "bitch" now. When he was finished, he made her take off her shirt, tied her hands behind her back, had her face a garage, and told her to count to 50 before she tried to leave. He told her that he worked with the police and that if she told anyone what had happened, he would find out and kill her.
After R.B. freed herself, she asked someone at the gas station to call 911, and police officers arrived. She was afraid that if she told the truth, she would go to jail for prostitution, and she initially told the officers, untruthfully, that defendant had dragged her into the alley. She later told them she had been working as a prostitute.
After the incident, R.B. had abrasions on her knees, bruises on her legs and shoulder, a bump on her head, and a laceration on her lip. She testified she would not have gone to work as a prostitute that morning if the abrasions and cuts had already been present because "nobody would have wanted to pay for sex with somebody that's all bruised up."
R.B. testified that her usual price for sex was $120 and that she would never agree to sex for $20. She also testified that the night before the rape, she had sexual relations with two regular customers, that the encounters took place on the customers' beds, that they were not rough or aggressive, and that she felt no pain or soreness afterward. When asked if one of the encounters was painful, she replied, "No. I don't let my clients get rough." The prosecutor said, "Just a little louder," and R.B. stated, "I didn't let my clients get rough. I had very strict rules."
R.B. testified she moved to another state after the crimes.
B. Defendant's Testimony
Defendant testified in his own defense. According to defendant, R.B. agreed to have sex with him for $20 and suggested going to the alley. She asked him to "[g]o hard," and he complied by "start[ing] to stroke a little harder." He denied having choked or threatened R.B. She never protested or asked him to stop. He did not steal her phone or tell her he worked for the police. She appeared "paranoid" or nervous during the encounter, and he thought she might be under the influence of drugs.
C. Exclusion of Evidence of R.B.'s Solicitation of Prostitution
Before trial, defendant moved in limine pursuant to Evidence Code section 782 to admit evidence of R.B.'s prior sexual conduct, specifically, the evidence of her two sexual partners the night before the incident. After a hearing at which R.B. testified about her sexual relations with those two customers, the court indicated it would allow questioning "on the topics . . . elicited here in the [section] 782 hearing."
All undesignated statutory references are to the Evidence Code.
During her testimony before the jury, R.B. referred to her activities as a prostitute both in the present and the past tense. When defense counsel asked her on cross-examination whether she still engaged in prostitution, she testified that she no longer did so. When defense counsel asked how long that had been the case, she testified that she had not worked as a prostitute since about a week after defendant raped her. Defense counsel then asked whether R.B. had used the Back Page Web site to solicit customers, and she replied in the affirmative. Asked if she had posted a solicitation on November 11, 2014—a date two months after the rape—she testified she did not recall doing so.
For instance, she testified, "I always make my clients wear condoms," and "I don't let my clients get rough," but also that "I didn't let my clients get rough. I had very strict rules."
Defense counsel then asked R.B. if it would refresh her memory to see a copy of the posting, and counsel engaged in a sidebar discussion with the trial court. Defense counsel argued that evidence of the posting was not collateral because R.B. had, in essence, testified she was so traumatized by the rape that she stopped engaging in prostitution. Defense counsel also represented that she wanted to ask R.B. about an advertisement that referred to "kinky stuff," to impeach R.B.'s statement that she did not engage in rough sexual acts. The trial court sustained the objection to evidence of R.B.'s subsequent involvement in prostitution. Later, defense counsel told the court she would like to impeach R.B. with evidence of an internet posting from August 2014 in which R.B. described herself as "Kinky Bella" and another undated posting indicating R.B. was "back in Vallejo." Defense counsel also said she would like to use a photograph in a posting that appeared to show bruises on R.B.'s legs to impeach her testimony that she would not have worked as a prostitute on the day of the incident if she were already injured.
The trial court excluded the proffered evidence on two grounds: first, that defendant had not sought to have the evidence admitted under section 782, the rape shield law; and second, that it was inadmissible under section 352 because it would entail undue consumption of time and confuse the issues. The trial court ordered the questions and answers regarding whether R.B. was still engaging in prostitution stricken from the record and directed the jury to disregard them.
II. DISCUSSION
Defendant contends the trial court's exclusion of evidence that R.B. continued to advertise herself after the incident, that she called herself "Kinky Bella," and that she had bruises on her legs in a posting denied him his constitutional right to confront and impeach R.B. and to present his defense, which was based on the theory that R.B. was not credible. He argues the evidence was relevant to impeach R.B.'s credibility.
In general, evidence of the sexual conduct of a complaining witness is inadmissible in a prosecution for rape. (§ 1103, subd. (c).) Such evidence may be admissible to attack the witness's credibility, however, subject to section 782. (§ 1103, subd. (c)(5).) Section 782, in turn, provides a procedure to be followed where evidence of the complaining witness's sexual conduct is offered to attack credibility: the defendant makes a written motion making an offer of proof of the relevancy of the evidence; the motion must be accompanied by a sealed affidavit in which the offer of proof is stated; if the court finds the offer of proof is sufficient, the court holds a hearing outside the presence of the jury; if the court finds the evidence is relevant to the witness's credibility and is not inadmissible pursuant to section 352, the court may make an order stating what evidence may be introduced and the nature of the questions to be presented. (§ 782, subd. (a).) The trial court has broad discretion to weigh the proffered evidence and resolve the conflicting interests of the witness and the defendant. (People v. Mestas (2013) 217 Cal.App.4th 1509, 1514; accord People v. Bautista (2008) 163 Cal.App.4th 762, 782 (Bautista).)
Defendant makes several challenges to the trial court's ruling. He first contends he did not need to comply with section 782 in order to introduce the proffered evidence because he was merely seeking to impeach R.B. with her inconsistent statements rather than seeking to introduce evidence of her sexual conduct. He is mistaken. He sought to introduce evidence of R.B.'s advertisements of her services as a prostitute. It has long been recognized that "solicitation of an act of prostitution" is " 'sexual conduct' within the meaning of . . . sections 782 and 1103." (People v. Casas (1986) 181 Cal.App.3d 889, 895.) If defendant wished to rely on these advertisements to impeach R.B.'s testimony, section 782 provided the mechanism for him to do so.
Defendant's reliance on People v. Tidwell (2008) 163 Cal.App.4th 1447, 1454-1456 (Tidwell) is unavailing. There, the appellate court concluded section 782 did not encompass evidence that a rape victim had made prior false accusations of rape; the defendant was seeking to impeach the victim "with allegedly false statements, not sexual conduct or, as in Casas, a willingness to engage in sexual conduct." (Id. at p. 1456.) Defendant here, on the other hand, sought to impeach R.B. not with prior false statements but with her solicitations of sexual conduct, a matter that falls within the ambit of section 782. The trial court did not err in excluding the evidence on the ground defendant did not comply with that statute.
As an alternate ground, the trial court ruled the evidence was inadmissible pursuant to section 352, under which a court 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." Defendant argues that exclusion of the evidence was an abuse of discretion and that it violated his right to present his defense, to confront R.B., to due process, and to a fair trial. Because R.B. testified that she stopped working as a prostitute a week after the rape, he contends, her advertisement approximately two months later was relevant to her credibility. Moreover, he argues, because R.B. testified that she had not sustained the cuts, abrasions, and bruises before the incident and that no one would pay for sex with someone who was "all bruised up," he should have been allowed to impeach her with an advertisement that appeared to show bruises on her legs.
As explained in Tidwell, " 'A trial court's exercise of discretion under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse. [Citations.] It is also established that " 'Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense.' " [Citations.] This does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than "slight-relevancy" to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value. [Citations.]' [Citation.]" (Tidwell, supra, 163 Cal.App.4th at p. 1457.)
Similarly, our high court has stated, "In general, the ' "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.]' [Citations.] We have recognized, however, that Evidence Code section 352 must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. [Citation.] [¶] Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 998-999.)
This reasoning has been applied to claims that the exclusion of evidence deprived a defendant of his right to confrontation. As explained in Bautista, supra, 163 Cal.App.4th at page 783, " '[a] trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]' [Citation.]" (Accord, People v. DeSantis (1992) 2 Cal.4th 1198, 1249 ["Defendant's entitlement to due process of law does not encompass a right to any process of his own choosing, including the right to introduce irrelevant evidence of sexual history. [Citation.] The exclusion of irrelevant evidence of later consensual activity did not violate defendant's confrontation rights"].) Our high court has explained: "Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
The trial court properly concluded that the matters into which defendant sought to inquire were collateral. Whether or not one of the advertisements showed bruises on R.B.'s legs, they were of only tangential relevance to the question of whether she would have gone out to seek customers with a cut lip, abrasions on her knees, and a bump on her head. Similarly, evidence that R.B. described herself as "[k]inky" had, at most, a tenuous connection to whether she allowed her customers to be so rough with her as to cause her injuries, and an even more tenuous connection to the question of whether she consented to intercourse with defendant.
Defendant points to the inconsistency between an advertisement for R.B.'s services, apparently made two months after the incident, and her statement that she stopped practicing prostitution a week afterward. We are unpersuaded that this required the court to admit the proffered evidence. To recapitulate: R.B. testified that she no longer worked as a prostitute only on cross-examination, in response to a question from defense counsel. Although the prosecutor did not immediately object to the question, he soon approached the bench, argued defense counsel was questioning R.B. about a collateral matter, and asked to have the answers stricken. After some discussion, the trial court ruled the questions should not have been asked because they fell outside the scope of the original section 782 order; the court therefore struck the questions and answers from the record. Thus, the basis for the impeachment defendant sought was no longer before the jury. Moreover, the jury was already aware that R.B. worked as a prostitute and that she initially gave the police a false version of events. There is no basis to conclude the jury would have received a "significantly different impression of [R.B.'s] credibility had the excluded cross-examination been permitted. [Citations.]" (People v. Quartermain, supra, 16 Cal.4th at pp. 623-624; see also Bautista, supra, 163 Cal.App.4th at p. 783 ["Although [the victim's] credibility was a central issue in this case, we find that examination of [her] on this particular topic would not have had a significant impact on defendant's defense or on the jury's impression of [her] credibility"].)
The trial court noted that it was defense counsel who elicited R.B.'s testimony that she stopped working as a prostitute after the rape and that the questions were outside the scope of its earlier order, and concluded: "I don't think you get to in essence back door the new information in with those questions."
In the circumstances, we conclude the trial court neither abused its discretion nor deprived defendant of his constitutional rights when it concluded the proffered evidence had only collateral relevance to the issues and that the proposed line of questioning would require an undue consumption of time.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------