Opinion
G053812
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. BABAK AZADGILANI, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered the opinion filed on July 11, 2018, be modified as follows:
On page 21, following the second full paragraph, insert the following:
"Defendant also asserts the court violated his federal due process rights by failing to conduct an Evidence Code section 352 analysis before instructing the jury with CALCRIM No. 1191. As the Attorney General concedes, the Villatoro majority stated, "'Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remoted or unconnected to each other, that the trial court could apply the criteria of [Evidence Code] section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.'" (Villatoro, supra, 54 Cal.4th at p. 1163, italics added.) However, the Villatoro court also concluded any failure to do so was harmless, and we do too. (Id. at p. 1168.)
Defendant's dissimilarity argument focuses on differences in the victims' alleged motives to falsely accuse him of rape, their differing ages, and the fact there was no weapon used in T.P.'s assault. Yet, there are numerous similarities. In both cases, defendant aggressively pursued his victims, and repeatedly brushed-off their attempts to discourage his behavior. By sheer force of will, defendant managed to get his victims into an environment where his actions would be concealed. Once safe from view, defendant proceeded to forcibly initiate sexual activity with the victims, and during this activity, defendant choked, slapped, and degraded the victims. He also ignored their repeated requests he stop. In our view, the two charged crimes were sufficiently similar for each to be probative evidence of defendant's propensity to commit this type of sexual offense, and the probative value of this evidence substantially outweighed any prejudice. (See Villatoro, supra, 54 Cal.4th at pp. 1168-1169.) Thus, any error was harmless, and there was no violation of defendant's constitutional right to due process and a fair trial."
The petition for rehearing is DENIED. This modification does not change the judgment.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.
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. (Super. Ct. No. 13HF1705) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged Babak Azadgilani (defendant) with two counts of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1, 4; all further unspecified statutory references are to the Penal Code), forcible sexual penetration by foreign object (§ 289, subd. (a)(1)(A); count 2), forcible oral copulation (§ 288a, subd. (c)(2)(A); count 3), and sodomy by force (§ 286, subd. (c)(2); count 5). The information alleged multiple victims and deadly weapon enhancement allegations. (§§ 667.61, subds. (b), (e)(3) & (4), 12022.3, subd. (b).)
A jury convicted defendant of counts 1, 3, and 4, but acquitted him of counts 2 and 5. The jury found true the multiple victim and weapons allegations. The court sentenced defendant to a total term of 40 years to life.
Defendant argues the court committed evidentiary and instructional error, and the prosecutor committed prejudicial misconduct. We reject defendant's contentions and affirm the judgment.
FACTS
1. Prosecution Case
a. Sarah A.
During the summer of 2009, Sarah, then 18 years old, started dating and became intimate with, then 22-year-old defendant. After a few months of consensual sex, Sarah said they were having consensual intercourse when defendant unexpectedly turned her over onto her stomach and sodomized her. Sarah told defendant, "No," and she screamed for help, but no one heard her. When defendant released Sarah, she left his apartment in tears.
Notwithstanding this incident, Sarah continued the relationship. She said they never talked about the sodomy. Sarah continued the relationship because she was naïve and lonely. Within months, Sarah moved in with defendant, and they lived together in several places in Orange and Los Angeles Counties over the next three years.
In June 2012, Sarah broke off the relationship, but she and defendant lived together, and continued to have intermittent sex, until the end of their lease. In January 2013, Sarah moved and changed her phone number to stop defendant from texting and calling her, but she had continued contact with defendant through e-mail and Voxer, a walkie-talkie cell phone application. In addition, defendant occasionally made unwelcome appearances at her work, or home, which made Sarah fearful.
In April 2013, defendant and Sarah agreed to meet for a drink. The evening went well until Sarah decided to go home. At this point, defendant grabbed her car keys and would not let her have them. Although he subsequently returned Sarah's car keys, Sarah was angry and went home.
On May 10, 2013, Sarah called defendant. She wanted to talk to him about her parents' divorce because they had lived together for three years, and he knew her family. They agreed to meet at defendant's home. He was living with his father, Max Gilani.
Sarah arrived at defendant's home around midnight. Defendant told her he bought groceries and a movie, and he would cook her dinner. They split a bottle of wine during the movie, but decided to forgo dinner. Sarah said defendant knew she "wasn't there to have a relationship with him."
The movie finished in the early morning hours of May 11, and defendant offered Sarah his upstairs bedroom for the remainder of the night. Defendant said he would sleep on the couch.
Defendant and Sarah made the bed upstairs, he and Sarah laid down and talked about their relationship. Defendant wanted to get back together, but Sarah did not. Defendant's persistent questioning prompted Sarah to remind him about the time he sodomized her in the summer of 2009, and the conversation ended abruptly.
Defendant got on top of Sarah. He grabbed her neck with one hand and choked her. Sarah tried to cry out, but defendant put his other hand over her mouth. Sarah struggled for air, and she may have lost consciousness.
Defendant then slapped her face, and he took off her jeans and underwear. He grabbed a knife from under a pillow, put the knife to Sarah's neck, and forced her to have sexual intercourse. Sarah admitted defendant had slapped and strangled her during consensual sex in the past, but defendant had always stopped when Sarah complained. This time defendant did not stop.
After defendant ejaculated on her, Sarah got out of bed and tried to leave the bedroom, but defendant blocked her way. Defendant put the knife up to his head and then hit himself in the jaw.
Sarah yelled for Gilani's help. Gilani woke up and pulled Sarah, clad only in a tank top, into his bedroom. Defendant followed Sarah into Gilani's bedroom, and defendant and Gilani started to argue. As they argued, defendant brought Sarah her clothes and Sarah got dressed. Sarah told Gilani about the rape. Defendant told Gilani, "honestly, I thought she would like it." After that, Sarah went home. Around 4:00 a.m., defendant texted Sarah to let her know she had left her earrings behind.
Sarah had injuries to her neck and eyes, and she took a picture of the injuries the next day. She also deleted her Voxer account. Defendant promised to "get sober" in a May 12 e-mail to Sarah, and he blamed his actions on marijuana. He threatened to commit suicide. Sarah said she continued to communicate with defendant out of fear he would retaliate against her, or her family.
On May 16, 2014, police searched defendant's home in connection with the alleged rape of T.P. They found a fixed blade knife with a black handle in a black plastic sheath in his bedroom.
On May 17, Sarah reported the now six-day old rape to the police after her parents told her defendant was wanted by the police for the rape of another woman.
When the police returned to defendant's home on May 22, the knife was missing.
b. T.P.
T.P. also met defendant during the summer of 2009. At the time, T.P. was 44 years old. Defendant was young and "very pushy." He asked T.P. a lot of questions. After talking to him for a while, T.P. reluctantly gave defendant her phone number.
Not long afterward, defendant and T.P. exchanged text messages, and T.P. agreed to meet defendant at some basketball courts in Laguna Beach where she lived. When play ended, defendant walked T.P. to her home. When she went to say goodbye, defendant threw her against the wall of her kitchen, kissed her, and walked away.
At this point, T.P. decided defendant was too young to date, and she did not approve of his marijuana habit. They texted each other briefly, but T.P. did not see defendant for three years.
In April 2013, T.P. bumped into defendant in Laguna Beach, but he did not recognize her. T.P. reintroduced herself, and she and defendant exchanged phone numbers. T.P. said she exchanged a few text messages with defendant to be polite.
One day, T.P., and her friend Cindy, met defendant at the basketball courts. When T.P. introduced defendant to Cindy, defendant picked up Cindy, threw her over his shoulder, and asked her how much she weighed. Cindy demanded defendant put her down. When he complied, T.P. and Cindy started to walk away. They told defendant they had plans, but he followed them to T.P.'s home. Defendant told T.P. and Cindy they were being paranoid, and he offered to cook dinner.
T.P. and Cindy did not want defendant to stay, but he stayed to watch an awards show with them. At one point, Cindy decided to sit on the couch. Defendant grabbed Cindy's feet without permission, and started to give her a foot massage. When he stopped, T.P. and Cindy conspired to tell defendant they needed to go to the store for some food to get him to leave. The ruse involved T.P. and Cindy driving away from T.P.'s home and waiting around the corner until defendant left. After they returned to T.P.'s house, T.P. closed the blinds. T.P. said, "we felt like we better close the blinds because he is probably going to come back . . . ."
After that incident, T.P. and defendant exchanged a few texts because T.P. wanted to be nice. Defendant asked T.P. why she kicked him out of her house, and they discussed whether T.P. was seeing someone. Defendant said he had changed in the three years they were apart, and he was now more about "sensuality than sexuality."
On April 8, defendant asked T.P. to meet him. T.P. told defendant she was busy. On April 13 and 14, defendant asked to meet T.P., but she told him she was busy, exhausted, and organizing her sock drawer. On April 20, defendant texted T.P. and asked, "are you around?" T.P. replied that she had company.
On April 21, defendant texted T.P. and learned she was sunbathing near the basketball courts in Laguna Beach. Defendant came over to T.P. and sat down. He tried to grab and hug her, but T.P. told him to stop and she rolled over onto her stomach. Defendant continued to try to put his arm around T.P., and he licked her armpit. He also tried to put his finger under her bathing suit and into her vagina.
T.P. was disgusted by defendant's behavior. Around 4:00 p.m., T.P. and defendant decided to leave the beach. T.P. told defendant she was going for a solo hike, and defendant told T.P. he was meeting friends in Huntington Beach. Defendant pointed to a motorcycle parked at a nearby gas station, and he said someone at the station let him park there.
Defendant did not stop to get his motorcycle. He insisted on walking T.P. home, and repeatedly told her to "just relax." T.P. asked defendant to leave her alone at least 10 times during the walk. Once they arrived at T.P.'s home, defendant wanted to come inside for a glass of water. T.P. told defendant to leave, but he walked inside when T.P. opened the door for herself.
T.P. ran upstairs to use the bathroom, but the fear of what defendant might do forced T.P. to quickly return to the living room. She, again, asked defendant to leave, but he got on his knees, put his arm around her, and put his fingers inside her vagina. Defendant started grunting and sweating profusely, and he became violent and rough with T.P..
T.P. told defendant to stop, and she pushed on his shoulders to get away from him. T.P. told defendant to leave because he was making her feel uncomfortable. Instead, defendant stood up, grabbed T.P., and threw her onto the couch. T.P. bruised her back on the armrest in the process. T.P. jumped up in pain, and she repeated, "You need to leave, you know. This is making me uncomfortable. I want you to leave the house."
Defendant refused to leave T.P.'s home. He put T.P. on his shoulders and spun her around three times before throwing her back onto the couch. T.P. struggled and told defendant to stop. Defendant responded, "You need to let this happen. You deserve this. I want to show you what I was about. You just need to stop resisting me and calm down." T.P. resisted, but defendant kept her pinned, and he seemed to get more angry every time T.P. said, "No."
Defendant orally copulated T.P.. T.P. faked an orgasm so he would stop, and when he did, T.P. got up. T.P. asked defendant to leave, but he picked up T.P., put her over his shoulder, and started upstairs. T.P. repeatedly yelled, "No, no, no," and she grabbed the staircase banister. When defendant could not pry T.P.'s hand away from the banister, he put her down. However, he then came at T.P. from behind, grabbed her throat with one hand, and held her hands behind her back with the other.
Once T.P. was subdued, defendant moved her upstairs. He forced T.P. towards her own bedroom, but she steered him into another room because she was afraid of what might happen, and she did not want bad memories inside her bedroom. In the other bedroom, defendant threw T.P. on the bed. T.P. told defendant she would not have sex with him, and she pulled her knees up to her chest to protect herself. She pleaded with defendant to stop.
Defendant did not stop. He ripped off his clothes. Sensing defendant was about to rape her, T.P. begged him to use a condom to avoid pregnancy and disease, but defendant refused. Defendant then forced T.P. to have rough intercourse, and he slapped her face. T.P. begged defendant to stop, but he would not respond. Defendant hit her face "really hard" and her face "just flung to the side of the pillow." T.P. said she wondered if defendant was going to hit her again, or kill her. She wanted defendant to "finish and leave."
Defendant told T.P. he was going to ejaculate all over her face. T.P. replied, "No, you're not," and she kept her head turned to the side. Defendant ejaculated on T.P.'s face, and used his finger to force some of it into her mouth. Afterward, defendant got up, dressed, and said, "I bet you want me to leave now." T.P. said yes. Defendant laughed and responded, "I can't believe I had to wait three years to rape you." Shocked, and on "auto pilot," T.P. walked defendant downstairs to the front door. As he left, T.P. told defendant, "something is wrong with you."
T.P. immediately called Cindy and told her what happened. Cindy told T.P. to hang up and call 911. Police officers quickly responded. T.P. was subjected to a physical examination at the hospital. She had bruises on her left hip, back, and wrist. She also had petechial hemorrhages in the eyes, which is consistent with strangulation.
Sometime later, the investigating officers asked T.P. to participate in a covert meeting with defendant in her house. When she agreed, they put microphones throughout her home, and they were hiding in the house when defendant arrived. A recording of T.P.'s conversation with defendant was played at trial, and the transcript admitted into evidence.
Initially, defendant engaged in small talk, and he seemed resistant to talking about why T.P. was upset. Defendant was anxious and he asked T.P. for an alcoholic beverage. T.P. thought that was strange. Defendant had denied drinking alcohol when they first met, and he repeatedly championed marijuana use instead.
When T.P. confronted defendant about hitting her face and choking her, and told him she had been concerned for her safety, defendant responded, "No you weren't. What the hell? What are you talking about?"
Defendant suggested they go for a walk, and he repeatedly asked T.P. to sit beside him on the couch, because he thought "this should be comfortable." T.P. asked defendant, "Do you remember me asking you to leave?" Defendant responded, "Before or after? You are like every girl, no, no, and then you put a finger in her, and she's like, okay. Every girl's like no, no, no. Then you start goin down on her and then she's like okay. Every girl is like no, no, no, then you put your dick in her and she goes okay. That's how every girl is."
T.P. and defendant continued to talk. Defendant said he felt like T.P. was trying to trap him. He also accused her of trying to get him into trouble. When T.P. asked him why he smacked her and ejaculated on her face when she had told him not to, defendant apologized and acknowledged, "That was really bad, I'm sorry." Nevertheless, he followed his apology by telling T.P., "Move doggie. I wanna give you a hug . . . ."
When T.P. pressed defendant on the details of what had happened, he responded by calling her a victim. They argued about how well they knew each other. Defendant said, "I know your personality and I know the rapport the banter that we have . . . . And I enjoy your company. Listen, I'm sorry if you . . . if you can forgive me . . . well you know that I like you as a person, I like you for more than just whatever. And I think you're always . . . hilarious, I think you're fun, and I think you're, you know, deep down, you're a good person. And I know I am. And . . . I felt, felt bad about it too. And . . . I'll make it up to you."
Defendant responded to T.P.'s accusations by telling her he really liked her and he had feelings for her. Defendant thought they had "chemistry." He also told T.P. she should have slapped him or pushed him off of her if she did not like what he was doing. He asked T.P. for a hug, which she declined.
As T.P. continued asking defendant why he behaved in such a manner, defendant asked her if she was going to call the police. T.P. denied calling the police, but defendant said, "I don't know why you did it but you did." When T.P. asked defendant why he said, "I had to wait three years to rape you," defendant denied making the statement, but also said he was sorry.
Defendant asked T.P. to forgive him, and he told her she did not have to call the police. He tried to convince T.P. they could still have a relationship. He became incredulous because T.P. acted like she could not "get over" what happened. T.P. told defendant ejaculating on her face was degrading. Defendant responded, " I know . . . Uh, this is what I think . . . I will, I will be good to you." When T.P. asked defendant how he could make such a statement, defendant said, "because you can, you can degrade me." He even offered to obey T.P..
Defendant insisted T.P. enjoyed the experience. He asked T.P. to try to see "that it wasn't the way you thought it was. And that my intentions weren't like that." Defendant also said, "part of me is wondering if you're recording everything we're talking about." He even said he thought T.P.'s house was "probably bugged."
After about 30 minutes, T.P. asked defendant if he had sisters, and what if something happened to them. Defendant explained, "A part of me though, no I don't, a part of me thought I, I pretty much thought you were just like you wanted like that role play like you, like, rape fantasy whatever. Cause like it . . . I think a part of you knows that's true too, and that's why you're trying to understand it." Defendant begged T.P., "Don't write me off . . . ." He asked for another chance and promised to never hurt her again because he wanted them to be able to say, "at least we tried." Defendant thought he was "worth a chance." T.P. told defendant she did not want to see him anymore, but defendant persistently asserted he cared about T.P. and he could fix things. Defendant assured T.P. he had not intentionally hurt her. On his way out the door, defendant said, "Let's stay in touch."
c. Jody Ward, Ph.D.
Jody Ward is a forensic psychologist with an expertise in rape trauma and battered persons syndromes. She did not meet either T.P., or Sarah, and she had not reviewed any of the reports or transcripts from the case.
Ward said the acute phase of rape trauma syndrome can last up to three weeks after the rape. During this time, the victim experiences shock, overwhelming fear, and numbness. Some victims appear disorganized and overwhelmed with emotion, and they have difficulty making rational decisions. Other victims downplay their emotions, and try to appear cool and calm.
After the acute phase, women generally have recurring nightmares. They frequently move, and change phone numbers, and they can become fearful of venturing outside. If a woman is raped by someone she knows, there is a general reluctance to report the rape to police, and some confusion on the woman's part about her role in the rape. Furthermore, female rape victims tend to try to talk their way out of the situation rather than resort to physical resistance.
Ward explained the term, "Battered Person Syndrome," as an attempt to explain the "cycle of violence" involved in domestic relationships and why a woman would stay in an abusive relationship.
The cycle of violence has three phases. The cycle begins with a tension-building phase, which is full of jealousy, verbal abuse, and power struggles. After building sufficient tension, the batterer will become physically violent. In this acute battering phase, the victim feels helpless and afraid because she does not know how to get out of the situation. During the third phase, the abusers become very apologetic and promise not to repeat the behavior in the future. Domestic violence victims tend to stay with the abuser because they are emotionally needy and lonely.
d. Malinda Wheeler, Forensic Nurse Specialist
Malinda Wheeler, a sexual assault nurse with 35 years of experience, testified she has performed over 18,000 sexual assault exams in the last 22 years on females from the ages of three months to 92 years. Wheeler said about 51 percent of the cases show no visible trauma to the rape victim's vagina, genitalia, or anus. Many factors influence the findings, including the use of lubrication, prior sexual experience and births. There is an even greater percentage of cases with no physical findings after anal penetration.
Wheeler reviewed the sexual assault report of T.P.'s April 2013 exam. There were no physical findings of trauma to the vaginal or genital areas. T.P. said she had a preexisting bruise on her leg, and a photograph taken at the time of the exam shows a bruise near her left hip. Another photograph was taken several days after the exam. This photograph shows a bruise on T.P.'s back. T.P. also had petechial hemorrhaging in her eyes consistent with strangulation.
2. Defense Evidence
a. Max Gilani
Defendant moved in with Gilani after he broke up with Sarah. Around 10:00 p.m. on May 10, 2013, defendant texted Gilani and told him Sarah was coming over to the house. Around 3:30 a.m. on May 11, Gilani heard defendant and Sarah arguing. Gilani got up to investigate. He saw defendant leave his bedroom in tears, followed by Sarah, who was also very emotional. Gilani asked what was wrong, and Sarah told him defendant wanted to kill himself.
Gilani went downstairs and made some tea. Sarah joined him in the kitchen. She was upset and angry, and she said, "I did it again. I came here." Sarah drank tea and ate some fruit, but she said nothing about injuries or being raped. Gilani was concerned because Sarah had some wine, but she had not eaten. He asked her to stay, but Sarah decided to leave.
b. Defendant's Testimony
Defendant testified he met Sarah in July 2009. At the time, Sarah was living in an apartment with her parents and siblings. They went from a dating relationship to a sexual relationship quickly. After only a month, defendant suggested they have anal sex. Sarah said she had never tried anal sex, but she was open to it. At one point, Sarah complained of being uncomfortable, so defendant changed positions. When Sarah continued to complain of pain, he stopped. She never complained about the incident, and they later moved in together.
When they decided to cohabitate, defendant and Sarah had rough consensual sex that included hair pulling, scratching, biting, choking, and slapping, but Sarah had never accused defendant of raping her. Defendant said he had a knife in his bedroom because Sarah had once been assaulted by two men in their apartment complex, and defendant had used the knife to scare the two men away.
Defendant attributed the demise of the relationship to his cheating and marijuana use. He confirmed the relationship ended in early 2012. When the lease on their apartment expired in 2013, defendant moved in with Gilani. Defendant and Sarah continued to text each other, and they got together every couple of weeks. In addition, Sarah had occasionally stayed with defendant at Gilani's.
In late March or early April, defendant and Sarah had sex. Sarah got on top of defendant, and she choked and slapped him. Afterward, Sarah told defendant she did not want to jump back into the relationship. Later, Sarah experienced vaginal discomfort and she wanted to know if he had intercourse with someone else and gave her a venereal disease. Defendant admitted he had sex with someone else. He was tested for sexually transmitted diseases, but the results were negative.
On May 10, Sarah agreed to come to defendant's home after work. He bought groceries and cooked dinner for her. When Sarah arrived at around midnight, they drank shots and a bottle of wine, and they settled in to watch a movie. Because it was early in the morning when the movie finished, defendant asked Sarah if she wanted to spend the night. He offered to sleep on the couch, and she could have his bedroom.
Defendant and Sarah made the bed together, and Sarah took off her earrings and pants. They got into bed and kissed and cuddled. There was talk of getting back together. Defendant took off Sarah's panties, began rubbing against her. He slapped Sarah, choked her, and pulled her hair.
Defendant said he lost control during this activity and ejaculated, but he did not penetrate Sarah's vagina. Nevertheless, Sarah's attitude changed. She became upset, and she asked defendant why he had ejaculated on her, and slapped and choked her. Defendant did not response verbally. He became upset, and he punched himself in the head, grabbed a knife from the floor, and threatened to commit suicide.
Sarah told defendant to stop, and she struggled with him for the knife. Defendant eventually put the knife down, got dressed, and left the bedroom. Gilani was in the hall, and he asked defendant what was going on. Just then, Sarah came out of the bedroom. She told Gilani defendant had threatened to kill himself. Defendant said he was crying, and Sarah was emotional and incoherent. Sarah left the house about 20 minutes later. After Sarah left, defendant sent her a text about her earrings.
Over the next two days, defendant and Sarah exchanged about 100 e-mails. The messages were discussions about what had happened. Sarah was upset and defendant simply decided to go along with anything she said and apologized for having sex with her. He denied holding a knife to Sarah's neck. After T.P. filed her police report, defendant decided to turn himself into the police.
Defendant said he met T.P. in 2010. They exchanged basic information and phone numbers. About two weeks later, they exchanged texts and decided to meet in downtown Laguna Beach. They were flirting and kissing, and T.P. did not protest when he put his hands between her legs. He stopped because T.P. saw children around. Defendant walked T.P. home, and she invited him in for a drink. Afterward, he left.
Defendant did not see T.P. again until April 2013, walking her dogs in Laguna Beach. He commented about T.P.'s "cool dogs," but he did not recognize her. T.P. reintroduced herself, and reminded him that they had been on a date three years earlier. Defendant decided to walk T.P. home, and T.P. invited defendant in for a drink. However, she said she was leaving soon to take a hike with a male friend. T.P. gave defendant her current phone number, and he left.
The next time defendant saw T.P. he was playing basketball in downtown Laguna Beach, and T.P. was with her girlfriend, Cindy. They decided to go to T.P.'s home together. Defendant gave Cindy a foot massage. T.P. said she and her friend were cooking dinner, and he needed to leave. They refused defendant's requests to stay and cook for them, and he agreed to leave.
On April 21, defendant let T.P. know he was in Laguna Beach playing basketball. She was on the beach near the basketball courts, and defendant soon joined her. They flirted and kissed. She did not protest when he put his hands between her legs.
They decided to leave at the same time, and defendant walked T.P. home. She asked him in for a drink. T.P. went upstairs to the bathroom. When she returned defendant kissed her, touched her vagina, and dropped to his knees. T.P. led him to the couch, but she fell on her back. He did not push her. T.P. said she was alright, and defendant took off her bikini bottoms. He orally copulated, and digitally penetrated, T.P. for five to ten minutes. Afterward, T.P. stood up and walked upstairs.
At the top of the stairs, defendant picked up T.P., and T.P. directed him into a bedroom. Defendant undressed and they had sex. Defendant grabbed T.P.'s neck and slapped her. He ejaculated on her face. When T.P. became upset, defendant wiped her face with his hand and a tissue.
Later, T.P. walked out of the room and went downstairs. Defendant followed T.P., gave her a kiss, and left.
During a subsequent phone call, defendant apologized for upsetting T.P. and ejaculating on her face. However, T.P. began to exaggerate the violence. Defendant suspected the police were involved, but he agreed to meet with T.P. at her house anyway.
DISCUSSION
1. Evidentiary Error
Defendant asserted a consent defense to both charges. With respect to Sarah, defendant wanted to testify Sarah had an abortion during their relationship, and the abortion explained Sarah's false accusation, and six-day delay in reporting the rape to police. The district attorney asserted, "there's no evidence that there was any argument other than about the prior sodomy incident." Defense counsel argued there was "a whole history behind" Sarah's decision to notify the police.
The court stated the abortion may be cumulative of other factors involved in the relationship, and revealing Sarah's abortion was "kind of an emotional bombshell." Defendant pointed out that abortion is legal, and he asserted the fact Sarah had an abortion should have no unusual emotional impact on the jurors. Defendant even suggested the court could question potential jurors on the issue.
Following extensive argument, the court excluded evidence of Sarah's abortion as highly prejudicial, and not particularly probative. The court took note of the strong emotions involved with an abortion, and expressed concern that some jurors may "take a very negative approach to anyone who did that." The court told counsel evidence of Sarah's abortion would not be admitted absent good cause, and the defendant's offer of proof and briefing had not provided one.
Defendant moved to admit evidence of the abortion twice at trial. During Sarah's cross-examination, defense counsel argued Sarah made it seem like sex was the only problem in the relationship and defendant had a right to give the complete picture. The prosecutor pointed out that Sarah had mentioned defendant's marijuana use and mental health as other issues in the relationship. Defendant argued Sarah's anger was evident, and there were a host of issues, but defendant wanted to admit evidence of the abortion because it explained Sarah's extreme level of anger.
The court disagreed and excluded the evidence without prejudice. The court concluded there was plenty of evidence for the jury to find bias on Sarah's part, and the topic of abortion was too emotionally provocative and unnecessary. The court also postulated that Sarah may blame herself for the abortion.
Defendant raised the issue again during a discussion on jury instructions. Although Sarah testified defendant's cheating and drugs were behind the breakup, defendant thought the jury should be able to consider the abortion as the reason behind the failure of the relationship.
The court referred to People v. Gionis (1995) 9 Cal.4th 1196, 1214, and concluded abortion is the quintessential type of "evidence which uniquely tends to evoke an emotional bias" against a witness while having "little effect on the issues."
Defendant renewed his motion to admit evidence of Sarah's abortion at the conclusion of his testimony, but the court, again, excluded the evidence as cumulative and highly prejudicial.
On appeal, defendant argues the court abused its discretion and violated his Fifth, Sixth, and Fourteenth Amendment rights under the federal Constitution by excluding evidence of Sarah's abortion. We disagree.
"Under 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. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.)
"The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial court's ruling under section 352 will be upset only if there is a clear showing of an abuse of discretion. [Citations.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65-66.)
Defendant fails to demonstrate either an abuse of discretion, or a violation of constitutionally protected rights. As the court noted, defendant's offer of proof was vague. Defense counsel only represented that defendant wanted to testify Sarah had an abortion. The fact of an abortion, and its timing, are not in the record. Defense counsel merely said the abortion occurred sometime during their over three-year relationship.
Defendant wanted to argue the abortion was the most important bone of contention in the relationship, and that it provided Sarah with the best reason to lie about him in 2013. However, defendant fails to persuade us the court erred. Defendant's vague offer of proof notwithstanding, it is disingenuous to argue the topic of abortion is not uniquely inflammatory. Whatever the jurors' beliefs about abortion, the issue was rife with the potential for undue prejudice and consumption of time. In light of defendant's failure to establish evidence of Sarah's abortion was more probative than prejudicial, we conclude there was no abuse of discretion.
Furthermore, "the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.'" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103, quoting People v. Mincey (1992) 2 Cal.4th 408, 440.) Defendant presented other evidence about his relationship with Sarah to support his consent defense. Defense counsel questioned Sarah's decision to live with defendant after the alleged sodomy, and he asserted Sarah was a spurned woman who had decided to make "everything . . . [defendant's] fault."
Although completely excluding evidence of an important part of accused's defense could implicate defendant's constitutional rights, excluding evidence of Sarah's abortion, assuming she had one during a relevant time period, did not impair defendant's due process right to present a defense. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) 2. CALCRIM No. 1191
Defendant asserts CALCRIM No. 1191 as given violated his state and federal constitutional right to due process, a fair trial, and a unanimous verdict. We disagree.
The information alleged defendant forcibly raped, forcibly penetrated with a foreign object, and forcibly orally copulated T.P. on or about April 21, 2013. It also alleged defendant forcibly sodomized Sara between July and September 2009, and forcibly raped her on May 11, 2013.
At trial, the prosecutor moved to admit evidence of defendant's prior sex offenses under Evidence Code sections 1101, subdivision (b) and 1108. The court considered the matter, but excluded the alleged offenses.
With respect to the current crimes, the prosecutor requested an instruction pertaining to the use of charged offenses as propensity evidence. The prosecutor wanted a modified version of CALCRIM No. 1191, an instruction on consideration of charged offenses as propensity evidence for other charged offenses. Defense counsel objected on federal constitutional grounds to the court giving any version of CALCRIM No. 1191.
In March 2017, the Judicial Council promulgated two different versions of CALCRIM No. 1191. CALCRIM No. 1191A is used when the prosecution relies on uncharged offenses as propensity evidence. CALCRIM No. 1191B applies when the prosecution uses charged offenses as propensity evidence. --------
The court overruled the objection, referring to People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), and gave the following instruction over defense objection:
"The People presented evidence that the defendant committed the charged offenses. These offenses are defined for you elsewhere in these instructions. The People must prove each of the charged offenses beyond a reasonable doubt.
"If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit any of the other charged offenses.
"If you conclude beyond a reasonable doubt that the defendant committed any one or more of the charged offenses, that conclusion is only one factor to consider along with all the other evidence. It is no sufficient by itself to prove that the defendant is guilty of any of the other charged offenses. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
Both charged and uncharged offenses may be considered by the jury. (Villatoro, supra, 54 Cal.4th at p. 1164 [CALCRIM No. 1191 modified for use with charged offenses]; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013 [CALCRIM No. 2.50.01, the predecessor to CALCRIM NO. 1191, referring to uncharged offenses].) The Attorney General argues there is no "relevant distinction" between the instruction approved in Villatoro and the one used in defendant's case, and we agree.
In Villatoro, the defendant was charged with several offenses, including rape and sodomy, against five women over a three-year period. (Villatoro, supra, 54 Cal.4th at p. 1156.) All but one of the five women testified at trial, and evidence concerning the sole victim who did not testify at trial came into evidence through her preliminary hearing testimony. (Id. at p. 1158.)
Without objection, the court gave the following modified version of CALCRIM No. 1191: "'The People presented evidence that the defendant committed the crime of rape as alleged in counts 2, 4, 7, 9, 12 and 15 and the crime of sodomy as alleged in count 14. These crimes are defined for you in the instructions for these crimes.
"If you decide that the defendant committed one of these charged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit the other charged crimes of rape or sodomy, and based on that decision also conclude that the defendant was likely to and did commit the other offenses of rape and sodomy charged. If you conclude that the defendant committed a charged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of another charged offense. The People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge.'" (Villatoro, supra, 54 Cal.4th at p. 1167.)
On appeal, the defendant argued CALCRIM No. 1191 violated Evidence Code sections 1108 and 352, failed to adequately identify the standard of proof required before the jury could consider a charged offense as propensity evidence, and failed to emphasize the presumption of innocence. (Villatoro, supra, 54 Cal.4th at p. 1159.) But a majority of the California Supreme Court rejected each of the defendant's arguments.
Defendant cites the concurring and dissenting opinion filed by Associate Justices Corrigan and Werdegar, and he argues Villatoro was wrongly decided. The dissenting justices disagreed with the majority's conclusion Evidence Code section 1108 applied to charged crimes, and they concluded CALCRIM No. 1191 is unnecessary in such situations. (Villatoro, supra, 54 Cal.4th at p. 1182 (conc. & dis. opn. of Corrigan, J.), Id. at p. 1184, (conc. & dis. opn. of Liu, J.).) However, as defendant concedes, we are bound by the California Supreme Court's majority holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
Moreover, "'"[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'"" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) "If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." (People v. Smithey (1999) 20 Cal.4th 936, 963; see Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
Here, CALCRIM No. 1191 as given emphasized the People's burden to prove each element of every charge beyond a reasonable doubt, and that the prosecutor must provide such proof before one charged crime may be considered as propensity evidence for another charged crime. The language of CALCRIM No. 1191 squarely placed the burden of proof on the People, and restated their burden to prove beyond a reasonable doubt all the elements of each charged offense.
Plus, the court gave CALCRIM No. 3515 (Multiple Counts: Separate Offenses). This instruction specifically told the jury "[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." In sum, the modified version of CALCRIM No. 1191 given here could not have misled the jury in a way that violated defendant's state or federal constitutional rights.
3. Defense Special Instruction
Relying on evidence defendant and Sarah had engaged in rough sex before the charged offenses were committed, defendant requested a pinpoint instruction to rebut Evidence Code section 1108 evidence. Defense counsel wanted to tell the jury they "could also consider that when he is slapping, when he is choking, that [defendant] is not trying to overcome their will, he is trying to invite them to rough sexual play."
Defense counsel submitted a sample instruction, which the court modified to read as follows: "Evidence was presented that the Defendant on prior occasions engaged in choking and slapping during consensual sex, with Sarah A.
"If you decide that the Defendant engaged in those practices with Sarah A. during consensual sex, you can use that evidence to decide whether on the occasions charged here the Defendant used these practices as part of rough consensual sex or as force to commit the crimes charged in counts 4 and 5."
Defense counsel objected to the court's limitation of the instruction to the counts involving Sarah. Defendant wanted to argue the evidence of prior rough consensual sex tended to prove defendant did not have a propensity to commit rape, which should include the rape of T.P.. The court then declined to give the instruction, describing it as argumentative and vague.
Defendant asserts the court's failure to give his pinpoint instruction constitutes instructional error. While it is the court's duty to give instructions on the general principles of law involved, it is the defendant's responsibility to request instructions that "pinpoint" a theory of the defense. (People v. Silva (2001) 25 Cal.4th 345, 371; People v. Saille (1991) 54 Cal.3d 1103, 1119) Upon request, a defendant is entitled to nonargumentative instructions that pinpoint the theory of the defense. (People v. Webster (1991) 54 Cal.3d 411, 443.)
In this case, we agree with the court's assessment of defendant's proposed pinpoint instruction. It was argumentative, and vague, and not necessary to the jury's determination of the issues. The court gave CALCRIM No. 1194, which told the jury they could consider evidence of prior rough, consensual intercourse to help them decide "whether the alleged victim consented to the charged acts," or that defendant reasonably and in good faith believed she consented. CALCRIM No. 1194 adequately addressed the issue of prior rough, consensual sex between defendant and Sarah.
Defendant's reliance on People v. Callahan (1999) 74 Cal.App.4th 356 (Callahan), is misplaced. In Callahan, the defendant was being prosecuted for child molestation, and the prosecution had introduced evidence under Evidence Code section 1108 to show the defendant's character or propensity to molest young girls. The defendant wanted to rebut the character testimony, but the court sustained objections to certain questions posed to two witnesses about the defendant's "'character for child molestation,'" or whether the defendant was "'the type of person who would molest a child.'" (Id. at p. 379.)
The appellate court found error in the court's rulings, but concluded reversal was not required because the witnesses had addressed the topic in answer to other questions. One witness testified the defendant never touched her in a way that made her uncomfortable, and that he had treated her "'nice,'" and "'gentle.'" A second witness testified defendant had "'take[n] very good care of us.'" (Callahan, supra, 74 Cal.App.4th at p. 380.)
Defendant refers to Sarah's testimony about previous rough sex, and he asserts the holding in Callahan bolsters his argument for a pinpoint jury instruction. But the Callahan court did not address jury instructions, and cases are not authority for propositions not therein considered. (People v. Barragan (2004) 32 Cal.4th 236, 243; Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)
4. Prosecutorial Error
The prosecution introduced 515 pages of text and e-mail messages between Sarah and defendant. Sarah had provided the messages to law enforcement, but there was no evidence law enforcement checked her computer to see if she omitted messages.
Based on these messages, defendant's testimony, and defendant's telephone records, defendant claimed Sarah deleted exculpatory messages before she gave the messages to law enforcement. No one introduced defendant's phone records, but defense counsel gave the records to the prosecutor before closing argument.
During her rebuttal argument, the prosecutor argued the defense failed to call logical witnesses, and the phone records produced by the defense showed only a "few" missing messages, which had not been sent to Sarah. Defense counsel objected, and the court found error in the prosecutor's description of what the records showed. Over defense objection, the court gave the following curative instruction: "Ladies and gentlemen, we've been discussing the last comments made by the prosecutor about the phone records. Here is what I want to tell you.
"The phone records do exist. However, they were not introduced by either side in our trial. Therefore, the description of the contents of those records by the prosecutor was improper. So, you're to disregard that." Defendant's motions to reopen his case, or for a jury instruction about the phone records, were denied.
The Attorney General concedes the prosecutor inadvertently argued facts not in evidence by referring to evidence neither party introduced. Defendant believes the prosecutor's conduct amounts to the use of false evidence and argument to obtain a criminal conviction. The Attorney General contends the error was not prejudicial under any standard. We agree with the Attorney General.
Misconduct that infringes upon a defendant's constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury's verdict. (Chapman v. California (1967) 386 U.S. 18; People v. Hall (2000) 82 Cal.App.4th 813, 817, citing People v. Harris (1989) 47 Cal.3d 1047, 1083.)
A violation of state law is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from making untoward comment. (People v. Watson (1956) 46 Cal.2d 818, 824.) In either case, only misconduct that prejudices the defendant requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition from the court generally cures any harm. (See People v. Gallego (1990) 52 Cal.3d 115, 200.)
Here, defense counsel properly objected, and the court gave a curative instruction. The court also told the jury the statements of counsel are not evidence. (CALCRIM No. 2014.) "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We agree with the Attorney General. The prosecutor's fleeting reference to defendant's phone records, followed by the court's explicit admonition to not consider that reference, adequately protected defendant's right to a fair trial. 5. Cumulative Error
Defendant asserts the cumulative effect of the trial errors resulted in an unfair trial. We have considered, and rejected, each claim of error. The prosecution presented a compelling case through the testimony of two witnesses with very similar factual accounts. "Defendant was entitled to a fair trial, not a perfect one." (People v. Box (2000) 23 Cal.4th 1153, 1214, overruled on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) Defendant received a fair trial.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.