Opinion
A157318
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. ANICETO LANDA ALARCON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 18CR000483)
Aniceto Alarcon was charged with committing multiple offenses against Jane Doe, a former domestic partner who refused to reconcile with him. A jury found Alarcon guilty of aggravated rape (Pen. Code, § 261, subd. (a)(2)), kidnapping to commit rape (§ 209, subd. (b)(1)), criminal threats (§ 422), corporal injury on a former co-habitant (§ 273.5, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). Enhancement allegations for kidnapping and personal use of a deadly weapon were also found true. The court sentenced Alarcon to an indeterminate prison term of 25 years to life and a consecutive determinate term of 8 years and 8 months.
Undesignated statutory references are to the Penal Code. --------
On appeal, Alarcon contends his conviction for kidnapping with intent to rape must be reversed due to insufficiency of the evidence and erroneous jury instruction. We reject these contentions and affirm the judgment.
THE TRIAL EVIDENCE
I. Alarcon's Relationship with Jane Doe
In 2016, Alarcon earned income by recruiting people from other countries to work in the vineyards in Napa. Jane Doe, who is from Mexico, responded to Alarcon's Facebook advertisement. After exchanging a few messages, they began talking on the phone. As they became acquainted, Alarcon suggested that if Jane Doe moved to Fairfield they could be "friends with benefits."
Two months after her first contact with Alarcon, Jane Doe moved to Fairfield, where she and Alarcon immediately became "friends with benefits." Alarcon loaned her money, got work for her, and got her a room in a hotel where he lived with other people. Jane Doe did Alarcon's laundry, made his food, and had sex with him. For the first several months of this arrangement, Alarcon was not violent toward Jane Doe, although he insulted her and often threatened to tell immigration that she did not have a work visa.
Then one day, Jane Doe told Alarcon she wanted them "to have a more formal couple relationship." He had made that offer to other women and Jane Doe "demanded" to know why he did not want a "nice" relationship with her. Alarcon became upset, which led to a struggle. He pushed Jane Doe around, shook her, and punched her in the arm with his fist. Then he forced her into a bathroom, where he got a knife, poked himself in the arm, and told Jane Doe he was going to call the police and accuse her of cutting him. Crying and frightened, Jane Doe told Alarcon she was going to leave him, and he could call the police if he wanted. There were people outside the bathroom and, eventually, Alarcon let Jane Doe get past him. She left immediately, drove to Vallejo, and rented a room there.
After the bathroom incident, Alarcon began calling Jane Doe and sending her messages asking her to live with him in a formal relationship. Jane Doe no longer wanted a relationship with Alarcon. She was angry that he punched her and caused her physical pain, and she was afraid because he had harmed himself and she thought he was going to do "something" to her. However, Alarcon had Jane Doe's "documents" and other belongings, and he threatened that if she did not go to live with him, he would harm her family and kill her children. Jane Doe took these threats seriously because Alarcon had cut himself and harmed her, and she had seen him have a fistfight with two other men. She knew he had information about her family because he hacked her Facebook account, accessed her contacts, and impersonated her in messages that he sent to her family. Eventually, Jane Doe agreed to live with Alarcon during the harvest, with the understanding that when the season ended, he would "leave [her] alone."
After Jane Doe returned to the Fairfield hotel, Alarcon's threats and insults intensified. He accused her of cheating, called her names, spat at her, poured soda in the gas tank of a car she had bought with her own money, and repeatedly threatened to report her to immigration. He also threatened to "burn [her] alive," kidnap her, tie her to a bed and let her die of hunger and thirst. Jane Doe endured this treatment and stayed with Alarcon because she wanted to work, and because she wanted to get her documents back from Alarcon.
At the end of the harvest, Jane Doe moved to Vallejo. She stayed in contact with Alarcon as "friends" because he owed her money for her work during the harvest and he said he was going to pay her. Alarcon stopped being insulting and threatening and tried to get back together. When Jane Doe refused, Alarcon began accusing her of things to make her fearful and manipulate her into returning to him. For example, he accused her of stealing his money and of attempting to kill his niece.
II. The February 2018 Incident
On February 12, 2018, Alarcon called Jane Doe and told her he was going pay her the money he owed her. Jane Doe agreed to meet at Walmart in American Canyon. She chose a public place because she was afraid of Alarcon, who had been sending her threatening messages. Doe was also upset with Alarcon because he had created a Facebook page using her name and picture that portrayed her as a prostitute.
At around 7:00 p.m., Jane Doe went to Walmart and did some shopping. As she was leaving, she met Alarcon at the exit. She wanted to put her things in her car, but Alarcon told her "no," and said to get in his car because he wanted to talk and then he would allow her to put her things in her car. Jane Doe complied, and Alarcon moved his minivan closer to her minivan so she could leave after their talk.
Jane Doe told Alarcon he should pay her because she needed the money. Alarcon said yes, but first he wanted them to get back together. Jane Doe said no, that it did not make sense and he would never change. He was calm but insistent that they should give it a try and he would change. He gave her perfume as a Valentine's day gift. Jane Doe still said no and became angry about the Facebook page portraying her as a prostitute. She tried to get out of the car, but he pulled her arm. He was mad and said he wanted to drive some place else to talk. Jane Doe agreed they could continue to talk so that he would pay the money he owed her.
As Alarcon drove on the road toward Napa, he began arguing with Jane Doe about why she did not want to get back together and accused her of being with someone else. She denied this, saying that she did not want to reconcile because he was never going to change. Alarcon became very angry and aggressive, and pulled and twisted her arm. She tried to get out of the car while it was moving, but he grabbed her and locked the door. Jane Doe was very afraid that Alarcon was going to hurt her. She did not know where he was headed and did not want to go with him. She told him to take her back to her car, that he did not have to pay her the money, and that she just wanted to get out.
Alarcon turned off the main road into a dark ranch. He kept insisting that they get back together and said he would not take Jane Doe to her car until she agreed. He was still holding her arm and she was very afraid. After he parked, Alarcon used both hands to shake Jane Doe and yank on her. He was drinking something and became angrier, threatening to kill her if she would not go back to him. He told her to scream as much as she wanted because nobody would hear her. He prevented her from getting out of the van, shook her by her arms and hair and said repeatedly that if she "didn't get together with him he was going to kill [her]."
Then Alarcon began choking Jane Doe, refusing to release her even when she gasped for air and made it clear she could not breath. He said he wanted to kill her, and that he had to kill her because if he let her go, she would run to the police. When he finally released her neck, Jane Doe asked him to let her leave and said she would not go to the police. Alarcon responded that he would not let her go, "that he had to finish what he had started." He gave her pen and paper and asked her to write two notes, dictating what she was to write. Jane Doe agreed because she was afraid of what he would do if she refused.
In one note, Alarcon made Jane Doe write that she loved him and was happy with him, that she had cheated on him, but he forgave her. He told her to write down contact information for the woman who had registered Jane Doe's van in her name, saying he would punish her for helping Jane Doe. In the second note, Alarcon told Jane Doe to write that they had been mugged, which was not true. Initially, Jane Doe refused to write this statement, but Alarcon grabbed her hair and choked her hard, causing her to pass out. When she regained consciousness, she gulped for air and then began crying as she told him to let her go. Telling her to finish the note, Alarcon took out a saw that he used for pruning grapes and placed it against the back of Jane Doe's neck. As she completed the notes, Jane Doe kept begging to be let go. Alarcon hit her in the forehead with the handle of the saw.
Then, Alarcon pulled out a recorder and asked Jane Doe to beg him to take her back to live with him. She agreed and tried to be convincing because she wanted to calm him down. He was very upset and "altered" and kept saying he was going to have to kill her, so she offered to go anywhere with him. In the recording, which was played at trial, Jane Doe made her voice calm and quiet because Alarcon had his saw in his hand, and she was afraid he was going to use it.
At some point, Jane Doe asked to use the bathroom. At first, Alarcon said no, but then he pulled her from the car by her hair to a portable toilet that was nearby. He would not let her go inside but gave her some paper and made her relieve herself in the dirt. When she was done, she tried to run, but he grabbed her by the hair, pulled her toward him and used the saw to cut the strap of her crossbody purse.
Alarcon walked Jane Doe back to the car and told her he wanted to "make love." She "told him that it was okay" because she knew "there was no other way out." She was not going to "start a fight with him" when "he had the saw" and she "had nothing." He opened the back of his van, cleared some room, shoved Jane Doe toward the seat, removed her pants and underwear from one side of her body and penetrated her. While this was happening, they heard a car. Alarcon moved away, toward the driver side door of his minivan. Jane Doe grabbed her phone and keys and took off running, holding half her pants in her hand. She ran in front of the car because she was afraid it would not stop and began hitting the hood with her fists. After the car stopped, Alarcon started walking toward Jane Doe, who had stayed in front of the car so it would not drive away. When the driver began making a call on her cellphone, Alarcon went back to his minivan and sped away. The woman rolled down the car window and spoke to Jane Doe in English, which she did not understand. Jane Doe was hysterical and tried to communicate what had happened. The woman gave Jane Doe a blanket and stayed with her until law enforcement arrived.
III. The Investigation
At around 10:30 p.m., Napa County Sheriff deputies responded to the scene where Jane Doe was waiting with the woman who stopped to help her. It was a secluded area with no streetlights near agricultural land operated by Atlas Vineyards. Atlas identified Alarcon's photo as an employee of the company. Officers observed tire tracks and a "burnout mark" on the grass and a port-a-potty nearby.
After Jane Doe was interviewed, she spent the night in the hospital, where a sexual assault nurse documented her injuries and performed a physical exam. Jane Doe was quiet, cooperative and complained of pain to her upper body, extremities and neck. The examiner noted that Jane Doe was "heavily menstruating" and had blood on her inner thighs. She sustained injuries to her neck, head, jaw and forearm that were consistent with her report of what Alarcon did to her. The examiner did not observe injuries to Jane Doe's genitals. At trial, the examiner testified that many factors can explain the absence of visible injury on a rape victim. For example, "menstrual blood acts as a lubricant which will then decreases blunt force trauma."
On February 13, 2018, a friend drove Jane Doe to Walmart to retrieve her minivan, but she could not start it because somebody forced the gas cap open and poured soda into the tank. While she was in the area, Jane Doe saw Alarcon driving his van and called the police. Officers recovered video surveillance footage from the Walmart parking lot, which showed a person approaching Jane Doe's minivan at around 1:30 that morning. The person, who was dressed in black except for a brightly colored construction vest, spent approximately four minutes near the gas tank cover of the minivan.
On February 13, Alarcon also called Jane Doe and sent her a text message. The call was from a number Jane Doe did not recognize and she hung up when she heard Alarcon's voice. Alarcon's text message said that he knew they could be happy together, apologized to Jane Doe, but also accused her of cheating on him, and of stabbing him with a knife. In the message, Alarcon made the following statement about the previous day: "Look, last night you begged me to make love to you and then you hit yourself to blame me, you thought you were going to hurt me."
On the afternoon of February 13, 2018, Alarcon was arrested. Jane Doe's border crossing card was in his wallet. He had an abrasion on the bridge of his nose and some scratches on his chin. Police transported him to the hospital, where the examiner took swab samples and also collected Alarcon's boxer shorts, which had blood on them.
Officers impounded Alarcon's minivan. The exterior was dirty, there was dried mud on the tires, and grass or weeds hung from the undercarriage. Items recovered from the van included a purse with a broken strap, a pruning saw, a yellow reflective jacket, two cell phones, Jane Doe's address book and wallet, the two notes Jane Doe wrote, and an audio recorder. Police also found gas cans, and a bag of sugar.
Investigators retrieved data from Jane Doe's cell phone and from two of five phones that were taken from Alarcon. Alarcon sent Jane Doe several threatening voice mail and text messages during the months prior to the February 2018 incident. Here, we mention only a few examples. In a March 2017 text, Alarcon said, "if you don't want to give me another chance, I guarantee that you will regret it later." In December 2017, he warned Jane Doe: "Tomorrow the war begins." He told her that if she went to the police, he would be arrested and sent to Mexico and once he got there, he said, "I will start killing your family." He cautioned Jane Doe to remember that "[o]ne way or another" she would "pay." If she did not come back to live with him, the "war" would begin and there would be no "way to stop it." In other messages, Alarcon threatened to harm or kill Jane Doe, used obscene language to describe her, and wished her dead.
On February 2, 2018, Alarcon sent Jane Doe a message calling her a whore and threatening that "your time is over." On February 8, Alarcon said that "[s]oon" he would burn Jane Doe alive. And on the early morning of February 12 he sent a text telling her "Enjoy your last days." A few hours later, Alarcon sent another text offering to pay Jane Doe money he owed her.
IV. Alarcon's Defense
After the prosecution presented the evidence just described, Alarcon testified in his own defense. He confirmed that he met Jane Doe on Facebook in 2016, he hired her to work in the Napa vineyards, and they had a "friends with benefits" relationship. Jane Doe wanted to get married, but Alarcon did not want a serious relationship because he had been hurt in the past.
Alarcon admitted that he sent Jane Doe threatening texts and voice mails, but claimed he was only venting his anger. He denied ever intending to hurt Jane Doe or her family, claiming he did not know any of her family members or where they lived. Alarcon recalled an incident when Jane Doe became very aggressive with him after discovering something on his phone or Facebook that made her angry. She grabbed a knife and poked Alarcon, which made him angry, so he pushed her and grabbed her arm, causing a bruise. Alarcon testified that he threatened to call the police but never did. He denied cutting himself or Jane Doe with the knife or threatening to do so.
Alarcon testified that on February 12, 2018, he called Jane Doe and said he had a gift to give her for Valentine's day. Alarcon acknowledged that he owed Jane Doe money at the time, but he could not recall if they discussed this debt when they agreed to meet. They met at Walmart and then Jane Doe got into his van without him saying anything to her. He did not force her into the van or force her to stay in it. He gave Jane Doe perfume that she did not seem to like, saying she wanted a purse instead. They both told each other that they "felt like being with" the other and agreed to drive to a different place. They had a history of taking long drives to quiet places where they would make love in his car.
Alarcon recalled having a good conversation with Jane Doe while he drove on Highway 29. Then she said she had to use the bathroom, so he stopped on a road near a church where he saw a bathroom. The doors on Alarcon's van did not lock and he did not prevent Jane Doe from getting out. But she stayed in the car and they continued to talk. Alarcon shared that he had just learned that he had a daughter, which led to an argument. When Alarcon suggested that they could all live together, Jane Doe became hysterical and started hitting him. He tried to embrace her in a bear hug, but she head-butted him, breaking his false teeth. He became upset and hit her a few times. After this altercation, he asked Jane Doe to write a note about what had just happened. Alarcon denied that he choked Jane Doe. He also denied using a pruning saw to threaten or hit her.
Alarcon testified that while Jane Doe was writing the note about their argument, he got out of his van, retrieved a tape recorder from a box he kept in the back, and began recording without telling Jane Doe. He secretly recorded part of their conversation because when they had fought in the past, she had threatened that he would regret it. He denied telling her what to say during the recorded conversation and claimed that they were hugging and holding each other when it took place.
According to Alarcon's account, after the argument was over, Jane Doe said she had to go to the bathroom, and he accompanied her. She did not go inside the port-a-potty because she was afraid of bugs, so he got her some paper. While they were near the port-a-potty, Jane Doe complained about her purse being broken and asked Alarcon to buy her a new one. Then they had consensual sex in his van, which is something they frequently did together. While they were being "intimate," Jane Doe "made a mistake and mentioned another name." Alarcon became upset and asked who the person was. Then they heard a car, so they got out of the middle seat and prepared to leave. But instead of getting back into the van, Jane Doe became "hysterical" and ran toward the car. When it became clear she was not coming back, Alarcon decided to leave because he did not want further problems or trouble.
Under cross-examination, Alarcon modified his account of the February 12 incident. He testified that he told Jane Doe about having a daughter while he was driving on the highway. She became hysterical and tried to jump out of the moving car, so he grabbed her arm and stopped the car until she calmed down. Then he continued to drive and stopped for a second time when Jane Doe said she needed a bathroom. By that time, she had calmed down. Alarcon asked if she wanted to go to the bathroom and she said, "not right now." Everything was calm while they talked for a while, but then they had another argument. It was during this argument that Jane Doe broke Alarcon's teeth and then he hit her.
Alarcon testified that he asked Jane Doe to write the note because he did not want to have any problems with her. He recorded a conversation when he asked her to describe her feelings of love toward him because he was still upset about her admission that she had cheated on him even though he had forgiven her. Then they had consensual sex, as they had planned to do when they were at Walmart. While they were being intimate, there was another "little problem" because Jane Doe called out somebody else's name and Alarcon confronted her about it. But that was also when they saw the car and he said they should go. Instead of getting in the car, Jane Doe became hysterical again and Alarcon left to avoid more problems.
DISCUSSION
I. The Offense of Kidnapping to Commit Rape
Alarcon's claims on appeal are limited to his conviction for kidnapping to commit rape. Section 209, subdivision (b)(1) states: "Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole." Alarcon contends that the intent element of this crime was not proven at trial.
To commit kidnapping with intent to violate another law, the defendant must intend to commit the target offense when the kidnapping commences. (People v. Laursen (1972) 8 Cal.3d 192, 198; People v. Tribble (1971) 4 Cal.3d 826, 831-832.) An intent to commit rape is defined as the intent to " 'use whatever force is required to complete the sexual act against the will of the victim.' " (People v. Soto (1977) 74 Cal.App.3d 267, 278 [collecting cases].) " ' "It is the state of mind of the defendant . . . which is in issue." [Citations.] It is not necessary to prove that the offender indicated a resolve to use all of his force to commit rape notwithstanding all possible resistance. [Citations.] Nevertheless, a distinction is recognized between the intent to rape, and lewdness, indecency and lasciviousness either alone or accompanied by an intent to seduce.' " (People v. Greene (1973) 34 Cal.App.3d 622, 648.)
In this case, the trial court used CALCRIM. 1203 to instruct the jury about the elements of kidnapping for the purpose of rape. The jury was instructed that the prosecution had to prove, among other things, that Alarcon "intended to commit rape," that "[a]cting with that intent, [he] took, held, or detained another person by using force or by instilling a reasonable fear," and that "[w]hen that movement began, [Alarcon] already intended to commit rape."
II. Substantial Evidence Supports this Conviction
Alarcon first contends that the evidence does not support the jury's finding that he intended to rape Jane Doe when the kidnapping commenced. In presenting this argument, Alarcon concedes the evidence supports his conviction for rape and the special circumstance finding of aggravated kidnapping. He contends, however, that there is no direct or circumstantial evidence that he intended to rape Jane Doe when he began to kidnap her.
"Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment." (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
We find substantial evidence that Alarcon intended to rape Jane Doe when he kidnapped her on February 12, 2018. When Alarcon first asked Jane Doe to go for a ride and talk, he may have planned only to seduce her. However, the jury reasonably concluded that once the encounter turned violent and Alarcon forcibly detained Jane Doe in his minivan as he drove toward Napa, he intended to commit rape. This finding is supported by evidence that Alarcon treated Jane Doe as a sexual object and a physical possession, that Alarcon threatened to wage a war against Jane Doe if she did not voluntarily comply with his demands, that Alarcon wanted to have sexual intercourse with Jane Doe that evening, and that Jane Doe rejected him during their car ride, thus triggering consequences that included assault, kidnapping, and rape.
Alarcon contends that an intent to rape cannot be inferred from his history of physically and verbally abusing Jane Doe because there is no evidence that this prior abuse was sexual in nature. First, we disagree with Alarcon's premise that prior domestic abuse is irrelevant unless it manifested as rape. Evidence that Alarcon has a history of abusing this woman with whom he had an ongoing sexual relationship is probative of his intentions during their February 2018 car ride. His prior mistreatment of Jane Doe supports a rational inference that he specifically intended to overcome her will should she attempt to resist him, which she did when Alarcon kidnapped her in his minivan. We also disagree with Alarcon that his prior verbal threats were unrelated to sex; there is substantial evidence of sexualized language used in conjunction with threats of violence, which could be indicative of an intent to rape.
Furthermore, even without considering Alarcon's prior abuse, the jury could have concluded that Alarcon intended to rape Jane Doe based solely on trial testimony regarding the February 12 encounter. Jane Doe testified unequivocally that when she refused to get back together with Alarcon, he physically restrained her, drove to a remote area and raped her. This conduct, considered in isolation, supports an inference that Alarcon formed the intent to rape when the kidnapping commenced. Alarcon testified otherwise, but the jury was not required to credit his contradictory and self-serving account of what transpired.
Alarcon contends that the only inference to be drawn from the trial evidence is that he formed the intent to rape Jane Doe after he kidnapped her because there is no physical evidence, such as an incriminating item in his car, to support a logical inference that he "harbored a pre-existing intention" to engage in forcible sexual conduct with Jane Doe. Intimating that such evidence was required, Alarcon cites People v. Crabtree (2009) 169 Cal.App.4th 1293. In that case, the defendant made internet contact with an undercover agent posing as a 13-year-old girl, arranged to meet her at a bus station, and was found waiting there in his car with Viagra, condoms, a bikini and bubble bath. (Id. at p. 1322.) The appellate court found that this evidence supported the defendant's conviction for attempted lewd acts on a child, but it did not say anything to support Alarcon's very different contention that a pre-existing intent to commit a sex crime can be inferred only when the defendant possessed items to facilitate commission of the crime. Moreover, in this case there were such items, including a pruning saw and a box of condoms that were recovered from Alarcon's minivan.
Finally, Alarcon takes the position that the nature of his personal relationship with Jane Doe precludes an inference that he kidnapped her with the intent to commit rape. According to this argument, when a stranger has forced a woman to get into his car and driven her to a remote location where he immediately raped her, there is a logical inference of an intent to rape. (Citing Wilson v. Long (S.D.Cal. May 3, 2013, No. 12cv415 AJB (BLM)) 2013 U.S.Dist. Lexis 63884.) But here, Alarcon knew Jane Doe, their February 2018 car ride began as a consensual encounter, and several things happened before the rape that were indicative of an intent to harm or kill Jane Doe, but not to rape her. Under these circumstances, Alarcon posits, the jury's finding that he intended to rape Jane Doe when he kidnapped her violates the rule that a reasonable inference cannot be based on " 'mere guesswork.' " (Quoting People v. Boatman (2013) 221 Cal.App.4th 1253, 1266.)
We disagree with Alarcon's reasoning, which comes perilously close to the false premise that a person cannot rape a domestic partner or a former domestic partner. Consensual aspects of Alarcon's relationship with Jane Doe are relevant; they explain why the car ride became a kidnapping only after she was already in the minivan headed toward Napa. But these consensual aspects are not dispositive. Once Jane Doe attempted to get out of the moving vehicle and asked Alarcon to return her to the Walmart parking lot, the interaction ceased being consensual and became criminal. Evidence that Alarcon manifested an intent to harm and kill her after this point is consistent with, and indeed supports, the jury's finding that Alarcon intended to commit rape when, instead of releasing his unwilling passenger, he kidnapped Jane Doe.
III. Alarcon Fails to Identify a Material Jury Instruction Error
Alarcon makes the alternative argument that his conviction for kidnapping with intent to rape must be reversed because of a prejudicial jury instruction error regarding the limited admissibility of evidence of Alarcon's uncharged misconduct.
A. Additional Background
The prosecution filed two motions requesting pre-trial rulings that evidence of Alarcon's uncharged conduct was admissible. The People argued that Alarcon's prior physical and emotional abuse of Jane Doe constituted domestic violence within the meaning of Evidence Code, section 1109, and that this evidence was also admissible under Evidence Code, section 1101 for multiple purposes, including to determine whether Alarcon had the intent to commit rape.
The trial court ruled on these motions at a pre-trial hearing. After defense counsel submitted the matters without objection or argument, the court granted both motions. It found that Alarcon's "pattern of conduct leading up to the event" was admissible evidence of prior domestic abuse under Evidence Code section 1109, and was also admissible under Evidence Code section 1101, as relevant to issues of "intent, lack of consent, lack of reasonable belief and consent, the requisite force or fear used by defendant, actual sustained fear, lack of self-defense, accident, or mistake."
Near the end of trial, the court advised the parties and counsel that it would use CALCRIM 375 to instruct the jury regarding the law governing uncharged conduct evidence. This model instruction contains a template for tailoring the instruction to permit consideration of uncharged conduct for limited purposes of deciding material issues relevant to the case. (See CALCRIM 375.) The court asked counsel to prepare arguments addressing the pertinent factual issues, including whether uncharged conduct was admissible to prove intent to rape.
The following day, the court heard argument regarding the relevance of the uncharged conduct evidence. On the specific issue of intent to rape, defense counsel argued that uncharged conduct was irrelevant because Alarcon had not previously raped or threatened to rape Jane Doe. The prosecutor disagreed, arguing that Alarcon's pattern of abuse included threats of sexual violence. The trial court agreed with the prosecution, finding that Alarcon's prior threats were admissible as probative of an intent to rape.
Ultimately, the court used a version of CALCRIM 375, which told the jury that if the conditions for considering uncharged conduct had been satisfied, it could but was not required to consider Alarcon's uncharged conduct for the limited purposes of deciding whether:
"The defendant acted with intent to commit rape (pursuant to the Kidnapping for Rape charged in Count Two) and to make a statement that is taken as a threat in this case (pursuant to the Criminal Threats charged in Count Three); or [¶] The defendant had a motive to commit the offenses alleged in this case; or [¶] The defendant knew Jane Doe did not consent when he allegedly acted in this case; or [¶] The defendant's alleged actions were not the result of mistake or accident; or [¶] The defendant had a plan or scheme to commit the offense alleged in this case; or [¶] Jane Doe was in sustained fear; or [¶] Jane Doe's fear was reasonable under the circumstances."
B. Analysis
Seeking de novo review, Alarcon contends the trial court erred by modifying CALCRIM 375. Importantly, Alarcon does not contend that the instruction contains an inaccurate statement of the law. Nor does he contend that any specific instance of uncharged conduct evidence was inadmissible. Instead, Alarcon claims only that uncharged conduct was not admissible for the purpose of determining whether he had an intent to rape. We question whether Alarcon forfeited this claim by failing to object to the People's in limine motions. We also question whether our review is de novo because trial court rulings under Evidence Code section 1101 are reviewed for abuse of discretion. (People v. Cage (2015) 62 Cal.4th 256, 273-274.) But regardless of the standard of review we employ, we find no error in the court's instruction allowing the jury to use uncharged conduct to determine intent.
Under Evidence Code section 1101, "[c]haracter evidence is generally inadmissible to prove a defendant's conduct on a specific occasion. (§ 1101, subd. (a).) But specific acts of prior misconduct may be offered for a noncharacter purpose, such as to show intent, common plan, or identity. (§ 1101, subd. (b).) When other act evidence is introduced under section 1101, subdivision (b), the degree of similarity required with the charged offense depends on the purpose for which it is offered. [Citation.] 'The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent; a greater degree of similarity is required for common design or plan; the greatest degree of similarity is required for identity.' " (People v. Merchant (2019) 40 Cal.App.5th 1179, 1191-1192 (Merchant).)
In this case, the uncharged conduct evidence includes a series of specific threats that Alarcon made during the days leading up to the February 2018 car ride. On the morning of February 8, Alarcon left a message telling Jane Doe that he was thinking about how he was going to "capture" her before he killed her, and a few minutes later, he left her this message: "Whore, I only have one thought and—and it's that you cheated on me, whore. Do you know what it is, whore? That one day, one day, one day I'm going to capture you and I'm going to do to you what the fuck I feel like until you die, bitch." On February 10, Alarcon left Jane Doe a long voice mail message, which began with his profession of love, followed by an acknowledgment that Jane Doe did not love him, and he followed that with an admonition that "you're going to be my woman, even if you don't want to."
These threats—to capture Jane Doe, to do whatever he felt like to Jane Doe until she died, and to make her be his "woman" even if she did not "want to"—could be construed reasonably as indicative of an intent to kidnap, rape and then kill Jane Doe. The inference of an intent to rape is strengthened by other uncharged conduct evidence documenting Alarcon's prior domestic abuse, which included violence, threats, and manipulative acts used to constrain Jane Doe's free will. Therefore, Alarcon's history of controlling Jane Doe's behavior and overcoming her will was relevant to a proper assessment of the specific threats he made during the days leading up to the February 2018 car ride.
Arguing otherwise, Alarcon parses his prior domestic abuse into three categories. First, he argues that the bathroom incident is the only evidence that he was actually violent, and that this uncharged conduct is irrelevant because it had nothing to do with sex. Second, Alarcon argues that his specific threats to capture Jane Doe, to do whatever he wanted to her, and to make her his woman are too ambiguous to support an inference of intent to rape. Finally, Alarcon argues that while many other prior threats could be indicative of an intent to use force or fear to control Jane Doe, they had nothing to do with sex and therefore cannot be used to infer an intent to rape.
This parsed analysis is untimely and unsound. The pertinent CALCRIM instruction addressed the limited admissibility of "evidence that the defendant committed other offenses that were not charged in this case," without identifying specific acts of misconduct. The defense did not object to this aspect of the instruction or contend that a specific act (like the bathroom incident) was irrelevant to the question of Alarcon's intent. Furthermore, as we have already explained, Alarcon's history of domestic abuse, which was indisputably relevant to other material issues, was also relevant to elucidate the meaning of the threats that Alarcon made during the days leading up to the February 2018 incident. " 'The least degree of similarity' " between charged and uncharged conduct " 'is required to support a rational inference of intent' " (Merchant, supra, 40 Cal.App.5th at p. 1192), and the uncharged conduct demonstrating Alarcon's pervasive and brutal disregard for Jane Doe's sexual autonomy more than meets this standard.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.