Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. MA026729 Thomas R. White, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, Michael R. Johnsen and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Rodney Karl Blackwell appeals from a judgment entered upon his conviction by jury of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2), count 1) false imprisonment by violence (§ 236, count 2) and making criminal threats (§ 422, count 3). The jury also found to be true the allegations that appellant had suffered two prior felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), and 667, subdivision (a)(1), and two prior prison terms within the meaning of section 667.5, subdivision (b). The jury further found to be true the allegation that appellant had suffered a prior conviction of section 288, subdivision (b), pursuant to section 667.61, subdivisions (a) and (d). The trial court sentenced appellant to an aggregate state prison term of 85 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that (1) there was insufficient evidence to sustain his conviction of false imprisonment by violence, (2) Evidence Code section 1108 is unconstitutional in that it violates the due process and equal protection clauses of the United States Constitution, (3) the trial court erred in admitting evidence of three prior sex offenses under Evidence Code section 1108, (4) the trial court erred in excluding evidence that appellant was not convicted of one of the prior sex offenses, thereby depriving him of his right to present evidence and to a fair trial, and (5) imposition of the upper term violated his rights to a determination by the jury beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
We filed our original opinion in this matter on October 19, 2005. The United States Supreme Court granted appellant’s petition for writ of certiorari and, on February 20, 2007, it vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham).
By orders dated July 13, 2007 and August 6, 2007, we requested supplemental briefing in light of the California Supreme Court’s recent decisions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 4, 2007, appellant indicated that no supplemental briefing would be filed.
Except for our discussion in part V, post, the opinion we now file is substantially the same as our opinion filed on October 19, 2005.
FACTUAL BACKGROUND
The prosecution’s evidence.
We review the record in accordance with the usual rules on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 66.) T. W. resided in Lake Los Angeles, in the County of Los Angeles. He suffered from cerebral palsy that prevented him from walking normally, although it did not relegate him to a wheelchair. T. W. also had a drinking problem. His siblings helped care for him.
A. The charged incident.
According to T. W., on June 2, 2003, at approximately 5:30 or 6:00 p.m., he left his sister’s home in Lancaster, after drinking two 32-ounce bottles of beer, planning to catch a bus home. When he missed the last bus of the day, T. W. saw appellant, whom he did not know but who lived across the street from his sister, and asked for a ride home.
T. W. entered appellant’s car. Appellant told him to wait a few minutes because he had to go to his house to do a few things. When appellant came out to tell T. W. it would be a few minutes longer, T. W. asked to use appellant’s bathroom. After using the bathroom, he sat on a couch in the living room to wait. Approximately an hour later, appellant’s girlfriend and his employee, V. D., arrived. T. W. asked her to perform oral sex on him, which she did, with appellant in the same room the entire time. T. W. paid V. D. $50.
T. W. testified at the preliminary hearing that appellant went outside and then returned. The record is unclear if this occurred while T. W. was having sexual contact with V. D.
Appellant then wanted to perform oral sex on T. W. He pulled down T. W.’s pants in the living room and began sucking his penis. T. W. told him he could not do that and attempted to get away, but appellant pinned him down by placing his elbows on T. W.’s lap, preventing him from getting up or moving. Appellant told T. W. that appellant was on “high-risk parole” and did not care if he returned to jail. He twice threatened to kill T. W. T. W. testified that appellant continued orally copulating him for 10 to 15 minutes. T. W. did not try to leave, fearing appellant might “do something bad” and, because of his disability, T. W. was unable to move quickly.
T. W. testified at the preliminary hearing that appellant continued for an hour.
Later, in the kitchen, appellant held a knife to frighten T. W., forced him to the floor, and again pulled down his pants and began orally copulating him. This also lasted 10 to 15 minutes. Appellant then allowed T. W. to get up. T. W. returned to the living room but, because he was frightened and was told by appellant that people outside had guns, T. W. did not attempt to leave. T. W. never consented to any of appellant’s actions.
When appellant went into the bathroom, T. W. telephoned a sister who testified he sounded frantic, hysterical and frightened. He told her what had happened and asked her to come and get him. T. W. made a second call to another sister, and repeated what he had told the other sister. As he did, appellant entered the room, grabbed the telephone and hung it up. To T. W.’s knowledge, neither sister ever came to appellant’s house.
Still too frightened to leave, T. W. remained at appellant’s house overnight. The next morning, appellant woke T. W. by undoing T. W.’s belt in an attempt to again orally copulate him. This attempt was never consummated. Appellant then drove T. W. to T. W.’s girlfriend’s home, apologizing for his conduct because he was “more or less tripped out.” During the ride, T. W. showed appellant the restaurant where he worked. Appellant gave T. W. his telephone number.
V. D., a reluctant witness, testified that on June 2, 2003, she entered the kitchen at appellant’s house and saw appellant aggressively, orally copulating T. W., who seemed frightened and shocked. She asked appellant what he was doing, and he told her, “Shut up. Close my door, and bitch, I told you to close my door, mind you [sic] own fucking business.” V. D. told T. W. that his sister was outside. T. W. asked appellant to let him up, but appellant would not. V. D. informed T. W.’s sister that he was busy.
V. D. appeared at trial only after a warrant for her arrest had been issued upon her failure to comply with a trial subpoena. Appellant had threatened her not to come to court and warned her not to tell the detectives anything.
V. D. testified that after observing the incident between appellant and T. W., she had sexual contact with T. W. Because he was upset, she offered to “do it to him,” to console him. He paid her $100. Appellant left when she and T. W. were being intimate.
T. W. did not telephone the police until June 4, 2003 because he was frightened, embarrassed and ashamed by what happened. When he did call, he lied and reported that on June 3, 2003, he left appellant’s house and went home while appellant was asleep because he was ashamed to say that appellant brought him home. He subsequently told police the truth. In his initial communication to police, T. W. also reported that appellant had gone through his backpack without his permission, and T. W. noticed on his way home that his wallet was missing.
On June 5, 2003, Sheriff’s Deputy Rich Simmons arrested appellant, who gave a statement in the patrol car. Appellant asked what he was being arrested for. When told “forced oral copulation,” he said “I didn’t suck no guy’s dick, or something to that effect,” although he had not been told that the victim was a male.
V. D. informed the district attorney that appellant told her to tell the authorities she knew nothing about a knife or his raping anyone, and threatened her that Lancaster was a dangerous place. T. W. testified that after appellant’s arrest, appellant’s brother, Darryl Wade Blackwell (D. Blackwell), telephoned T. W. and asked him to drop the charges.
B. Prior sex offenses.
1. The P. B. incident.
P. B., appellant’s former neighbor, appeared at trial and testified as to her encounter with him. On August 12, 1992, appellant went to her house to ask to use her telephone. She had previously allowed him to do so because he had no telephone. On this occasion, she did not let him use her telephone because she was using it. Appellant left and returned several times to see if P. B. was still on the telephone. P. B. later heard him in her kitchen. She told him that he could not just walk into her apartment. Appellant responded: “‘Well, I told you I needed to use the phone.’” P. B. again told him, “‘Well, you can’t use the phone.’” Appellant said, “‘Well, I didn’t want to use the phone anyway. I just came over to fuck you.’” P. B. initially thought appellant was joking, but came to realize he was not.
P. B. tried inching toward the front door, and appellant began rambling that he was going to prove he was a man. Before she could unlock the door, he grabbed her by the hair and threw her to the floor. He jumped on top of her, pulled out a steak knife and warned that if she did not lie still, he would kill her. P. B. told him to put the knife down, and he could do what he wanted. As appellant got up to lock the front door, P. B. ran to the back door. Appellant caught her, and again pulled her by the hair and threw her to the floor. He hit her in the face with his fist approximately 20 times, bruising her face and splitting her lip, which required 10 stitches. Appellant then stabbed P. B. with the knife in her left breast. P. B. began screaming for help and kicked the back door. Appellant tried to put his hand over her mouth and “to take the knife out and stab [her] on [her] right side.” He bit her on her right breast. In the struggle over the knife, P. B. was able to push the hand in which appellant held the knife, so that it stabbed him in the leg. Appellant dropped the knife and continued to hit P. B. in the face with his fist. Finally, she was able to kick open the back door, and her neighbor came out and started screaming. Appellant ran away, and P. B. telephoned the police. The swelling on her face and bite wound lasted about a month.
2. The B. B. incident.
A transcript of former testimony of B. B. regarding her contact with appellant was read to the jury. It indicated that in 1990, B. B., who was 10 years old, and her sister stayed at her aunt’s house for the night. Appellant was also staying there. After dinner, B. B. and her sister went to sleep in her aunt’s bedroom, B. B. wearing a T-shirt and underpants. Her aunt and appellant slept together in the living room.
B. B. was awakened when appellant pulled down her underpants to her knees and was licking her vagina, which he continued to do for a half hour. B. B. attempted to turn on her stomach to stop him, but could not because he was holding her legs. When her sister stirred, appellant left the room, returning five minutes later. He again pulled down her underpants, inserted his finger in her vagina and licked her vagina. This lasted for almost an hour.
3. The J. C. incident.
A transcript of J. C.’s prior testimony was read to the jury. It indicated that on October 7, 1992, J. C. was in a jail cell with appellant. In the middle of the night, appellant told J. C. that he wanted to give him oral sex. J. C. told him no. Appellant insisted and displayed a razor in his hand. Frightened, J. C. allowed appellant to orally copulate him. Appellant then pulled his pants down and told J. C. to put his penis in appellant’s anus. J. C. said no, but relented because the razor was still in appellant’s hand. Appellant grabbed J. C.’s left hand and attempted to cut it, causing a scratch. After, appellant threatened J. C. again by showing him the razor, appellant said “it’s my turn now.” J. C. then allowed appellant to sodomize him. They then went to sleep.
The next morning, appellant told J. C. to go to “the woman’s house, the woman that’s accusing him” to talk to her and tell her not to go to court. Appellant gave J. C. a piece of paper with her name, address and telephone number on it. Appellant also told J. C. that he knew where J. C. and his family lived.
The Defense’s evidence.
D. Blackwell testified on appellant’s behalf. Two weeks after appellant’s arrest, D. Blackwell telephoned T. W. to find out why appellant was being prosecuted. T. W. told him that he was partying, met appellant and “things sort of got out of hand.” T. W. said he did things because he was “caught up in the moment” and was intoxicated at the time. He said he could have left appellant’s house at any time, but chose not to. T. W.’s sister came to get him, but he did not leave. T. W. apologized for contacting the authorities, stating that he did so to avoid pressure from his wife and because his wallet and money were missing. T. W. said that he had a background in gangs. His family included gang bangers, and, if they found out he had sex with another man, they would do harm to him. He assured D. Blackwell that he was going to “drop the charges.” D. Blackwell denied telling T. W. not to go forward with appellant’s prosecution and threatening him or his family if he did.
D. Blackwell also testified that, on June 5, 2003, he heard an “adverse conversation” between appellant and V. D. She threatened to call her uncle to set appellant up and to do bodily harm to him. D. Blackwell told her to stop making threats, and appellant fired her that day.
DISCUSSION
I. Appellant’s conviction of false imprisonment by force or violence is supported by substantial evidence.
Appellant contends that there is insufficient evidence to support his conviction of false imprisonment by force or violence. He argues that there was no evidence he kept T. W. in his apartment against his will, that he used force or violence to keep him there, or that the force used, if any, was in excess of that used to commit the forcible oral copulation.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Section 236 provides: “False imprisonment is the unlawful violation of the personal liberty of another.” Section 237, subdivision (a) provides that, “[i]f the false imprisonment be effected by violence, menace, fraud or deceit, it shall be punishable by imprisonment in the state prison.” “Violence” is physical force to restrain over and above the force reasonably necessary to restrain. (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123; People v. Babich (1993) 14 Cal.App.4th 801, 806.) “Menace” is a threat of harm express or implied by word or act. (Ibid.)
We reject appellant’s assertion that the force or menace employed here did not exceed that used to commit the forcible oral copulation. That argument is based on the prosecutor’s closing argument in which she stated that in committing the false imprisonment the force used was “defendant’s elbows being on [T. W.’s] lap and also violence with a weapon.” Appellant argues that the use of appellant’s elbows to hold T. W. down was the very force used in committing the oral copulation, and the jury failed to find the weapon allegations to be true. But this argument is constructed on the faulty premise that what the prosecutor chose to highlight in closing argument constitutes the totality of the evidence of force and menace. As stated above, it is the entire record to which we look to determine the sufficiency of the evidence. (People v. Bolin, supra, 18 Cal.4th at p. 331.)
Having reviewed all of the evidence, we conclude that there was sufficient evidence to support the false imprisonment conviction. During the course of the incident, appellant twice threatened to kill T. W. Appellant told T. W. that there were people with guns outside of his apartment. When appellant came out of the bathroom and saw T. W. on the telephone, appellant grabbed the telephone away from him and hung it up in a show of force implying that T. W. was not free to have contact with the outside world. Appellant told T. W. that appellant was on “high-risk parole” and did not care if he returned to jail, again suggesting that he was dangerous and not to be challenged. These facts, reflecting both explicit and implicit threats of force, amply support a finding of menace.
Appellant relies principally on People v. Matian (1995) 35 Cal.App.4th 480 to support his position, but that case is distinguishable. In Matian, after the defendant completed a sexual assault on the victim which included squeezing the victim’s breast hard enough to cause her pain, the victim went to gather her possessions. The defendant then grabbed her arm and yelled at her not to go and that “‘nothing happened,’” and told her to go wash her face. She then sat in a chair, and the defendant went into his office from which he could see her. Each time she got out of her chair, appellant glared at her and got up from his chair to approach her. She was afraid and did not want him to touch her again and sat back down. The prosecutor argued that this was adequate evidence of menace to support the conviction. The Court of Appeal construed the prosecutor’s argument as a tacit admission that the evidence was insufficient to establish that the grabbing of the victim’s arm constituted violence. The court found that the only evidence of “menace,” the pain and possible injury caused by the sexual assaults and the defendant’s glaring at the victim, was insufficient to support the conviction. In so finding, the court expressly noted that there was no evidence of a deadly weapon or any indication that the defendant ever threatened the victim with additional physical harm. Here, appellant twice threatened to kill T. W.
II. Admission of propensity evidence under Evidence Code section 1108 does not violate appellant’s right to a fair trial, Equal Protection or Due Process.
Over defense objection, the prosecution moved pursuant to Evidence Code sections 1101, subdivision (b) and 1108, subdivision (b) to admit evidence of three prior sex offenses committed by appellant. After argument, the trial court found the offenses to be sufficiently similar to the charged offenses, in that the victims were particularly vulnerable, each was restrained in a confined area, a weapon was used, and an attempt was made to dissuade the victims from disclosing the assaults. The trial court also found that none of the prior offenses appeared to be more egregious than the charged offenses, the probative value was not outweighed by the prejudice and there was no likelihood that jurors would be confused. Because the trial court was concerned that this evidence might involve the undue consumption of time, it required the People to limit the testimony to a “relatively short period of time.” During trial, appellant repeatedly objected to the use of prior sex acts, particularly the J. C. incident of which appellant claimed he was not convicted.
Appellant contends that his conviction must be reversed because the admission of evidence of prior sex offenses under Evidence Code section 1108 deprived him of his rights to a fair trial, due process and equal protection. He argues that our Supreme Court’s decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta) that Evidence Code section 1108 does not violate the Due Process Clause of the United States Constitution must be reconsidered in light of the Ninth Circuit opinion in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), reversed on other grounds in Garceau v. California (1994) 513 U.S. 848, which held that using other crimes evidence to infer propensity violates due process. He also contends that Evidence Code section 1108 violates the Equal Protection Clause because it treats sexual offenses differently than other offenses by allowing propensity evidence only for sexual offenses. He argues that this classification is irrational because the incidence of recidivism for sex offenders is less than that for many other offenders, making prior sexual misconduct no more probative than prior misconduct for other offenses.
We find Garceau to be inapposite. First of all, the evidence of other crimes in that case had nothing to do with Evidence Code section 1108, but rather, involved evidence of other crimes clearly inadmissible under Evidence Code section 1101. In addition, Justice Tashima specifically noted in Garceau that our Supreme Court had found that admission of the evidence was error under Evidence Code section 1101, but had concluded that the error was harmless. The Ninth Circuit disagreed with the finding that the error was harmless. (Garceau, supra, 275 F.3dat p. 776.)
We similarly reject appellant’s equal protection challenge to Evidence Code section 1108. Although the Supreme Court in Falsetta was not faced with an equal protection challenge to Evidence Code section 1108, it noted with approval that the Court of Appeal in People v. Fitch (1997) 55 Cal.App.4th 172, had rejected such a challenge reasoning that the Legislature could create an exception to the propensity rule because of the serious nature of sex offenses and because they are usually committed secretly and involve trials that are largely credibility contests. (Falsetta, supra, 21 Cal.4th at p. 918.)
Having concluded that admission of evidence under Evidence Code section 1108 does not violate due process or equal protection, we proceed to consider whether the trial court abused its discretion in admitting such evidence here.
III. The trial court abused its discretion in admitting without restriction all three prior sex offenses under Evidence Code section 1108, but that error was harmless.
Appellant contends that the trial court abused its discretion by permitting evidence of his prior acts. He argues that the prior acts were not significantly similar to the charged offenses, and presentation of this evidence consumed nearly one-third of the trial time. Appellant contends that the inquiry “unconstitutionally shifted from what appellant did to who [sic] appellant is.”
Evidence Code section 1108 provides that evidence of a defendant’s commission of another sexual offense is admissible in a criminal action in which the defendant is accused of a sexual offense, unless it is inadmissible pursuant to Evidence Code section 352. Section 352 provides that the court has the discretion to exclude relevant evidence if its probative value is outweighed by the probability that its admission will consume an undue amount of time, or would create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
“Review of a trial court decision pursuant to Evidence Code section 352 is subject to abuse of discretion analysis. [Citations.] ‘The weighing process under 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.]’” (People v. Greenberger (1997) 58 Cal.App.4th 298, 352.) “[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) Abuse occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (People v. Kwolek (1995)40 Cal.App.4th 1521, 1532.)
Because Evidence Code section 352 stands between Evidence Code section 1108 and unconstitutionality (Falsetta, supra, 21 Cal.4th at pp. 917-918), in applying Evidence Code section 352, a trial court must do more than simply rubber stamp the admission of any evidence of prior sexual offenses the prosecution proposes to introduce. (See People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).) In exercising its discretion, “‘because other-crimes evidence is so inherently prejudicial, its relevancy is to be “examined with care”’” (ibid.), and it is to be received with caution. (People v. Mullens (2004) 119 Cal.App.4th 648, 666; see also People v. Evers (1992) 10 Cal.App.4th 588, 600.)
In considering whether the probative value of uncharged crimes is outweighed by the prejudice, we must evaluate the probative value of the evidence, its inflammatory nature, whether there are less prejudicial alternatives, such as admitting some but not all of the defendant’s other offenses or excluding some inflammatory details, the probability of confusion, consumption of time, remoteness as well as other unique factors presented. (Harris, supra, 60 Cal.App.4th at pp. 738-740; see also Falsetta, supra, 21 Cal.4th at p. 917.) In People v. Ewoldt (1994) 7 Cal.4th 380, 405 the California Supreme Court deemed it important to also consider whether “[t]he testimony describing defendant’s uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses.”
In applying these factors here, we conclude that the trial court did not adequately consider the prejudicial nature of the evidence when it allowed the admission of all of appellant’s prior sex offenses. But we find this error to be harmless.
The testimony regarding the prior sex offenses consumed approximately 50 pages of a comparatively lengthy transcript and therefore cannot be viewed as protracted. Still this evidence constituted a significant part of the prosecutor’s closing argument.
The three prior acts occurred approximately a decade before the charged offenses, and were therefore not too remote in time to be relevant. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 284-286 [prior act 30 years earlier admissible]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [prior act 18 to 25 years earlier admissible].)
But consideration of the probative value of the prior acts and their inflammatory nature tip the scale against their wholesale admission. The greater the similarity between the prior acts and the current conduct, the more probative the prior acts on the defendant’s disposition to commit the charged crimes. (See People v. Balcom (1994) 7 Cal.4th 414, 427.)
The J. C. incident.
The J. C. incident bore strong similarity to the current charges. In that case, as here, appellant sought sexual contact with another male, sought to orally copulate him, and after doing so, demanded sexual favors in return. He used a razor to coerce the sexual conduct with J. C., did not cause significant injury to his victim, and attacked his victim in a location where escape was impossible. Further, appellant attempted to coerce J. C. to convince appellant’s female victim to drop the case against him. The facts were no more inflammatory than the current charges, perhaps even less so, because J. C. was incarcerated and would likely be perceived as a less sympathetic victim than T. W., who suffered from cerebral palsy and was not incarcerated. Given these facts, we conclude that the trial court did not abuse its discretion in admitting this evidence.
The B. B. incident.
The B. B. incident also bore some similarities to the current offenses and was relevant. In that incident, appellant performed oral sex on his victim, who was vulnerable and cornered by him in a location where escape was difficult. Appellant used force to prevent his victim from turning away from him to avoid contact. Although there were also significant dissimilarities here, in that the victim was a little girl, the trial court did not abuse its discretion in concluding that that difference was insufficient to outweigh the probative force of the evidence. Further, the prejudice was mitigated because B. B. did not testify at trial, but instead, a transcript of her former testimony was read.
The P. B. incident.
The P. B. incident presents a different situation. It too bore some similarities to the current offenses and was therefore relevant to the charged incident: it involved the use of a knife on a vulnerable victim in a confined location. But those similarities were far outweighed by the highly inflammatory dissimilarities. The evidence of the P. B. incident was graphic and emotional, depicting P. B.’s life and death struggle against appellant’s vicious physical attack, which included his stabbing her, biting her breast and punching her dozens of times in the face. The evidence highlighted her unsuccessful, desperate efforts to escape from appellant, and the brutal beating she received when she failed. Unlike the other prior incidents which were introduced in evidence through the reading of transcripts of former testimony, P. B. testified at trial, giving emotionally charged testimony.
Despite the dramatic differences between the P. B. incident and the current charges, the trial court made no effort to mitigate the prejudice. While it warned that it would limit the time devoted to that testimony to a “relatively short period,” when the testimony was being given, it made no serious effort to limit its duration. It made no attempt to eliminate the more inflammatory features of the evidence or to assess whether evidence of the P. B. incident was even necessary, as it was cumulative to the J. C. and B. B. evidence. In short, we see little indication that the court engaged in the delicate balancing required to insure that a defendant is convicted for what he did, not who he is. The trial court erred in permitting the details of the P. B. incident to be presented to the jury without omission of some of the gruesome facts which were more prejudicial than probative. Having failed to do so, we conclude that the court abused its discretion. (See Harris, supra, 60 Cal.App.4th 727-732, 738.)
We still must consider whether the admission of the P. B. incident constituted prejudicial error. An error in admitting evidence warrants reversal of a judgment only if an examination of the entire case, discloses that the erroneously admitted evidence caused a miscarriage of justice. (People v. Mullens, supra, 119 Cal.App.4th at p. 660.) A “miscarriage of justice” occurs when it is reasonably probable that a more favorable result would have been reached in the absence of the error. (People v. Alcala (1992) 4 Cal.4th 742, 790-791; People v. Watson (1956) 46 Cal.2d 818, 836.)
We are satisfied that there is no reasonable probability the result would have been different if the evidence of the P. B. incident had been limited or excluded. The evidence against appellant was overwhelming. Not only did T. W. testify to being orally copulated by appellant, but V. D., appellant’s girlfriend, corroborated his testimony. In addition, T. W.’s sister testified to receiving a telephone call in which T. W. sounded hysterical and frightened. When appellant was told that he was being arrested for oral copulation, he volunteered that he “didn’t suck no guys dick,” although he was not told that the victim was a male. Moreover, evidence of appellant’s past prior sexual offenses regarding J. C. and B. B. were admissible and adequately established his disposition to commit such acts.
IV. The trial court did not err in excluding evidence that appellant was not convicted of one of the prior offenses.
Appellant objected to the admission of the J. C. incident, claiming he was not convicted of charges related to it. During closing argument he sought to tell the jury of that fact. The trial court did not allow him to do so, because there was no evidence that he was convicted of any offense related to that conduct. The evidence on that issue, it ruled, was not proper until the bifurcated trial on his prior convictions.
Appellant contends that the trial court erred by precluding him from introducing evidence that he was not convicted of the charges related to the J. C. incident. He argues that “evidence the State did not go through with a particular prosecution, should be admitted when the underlying offense is admitted as proof of a criminal disposition.” He asserts that the charges pertaining to the J. C. incident were joined with charges related to the P. B. incident and were dismissed pursuant to a plea agreement by which appellant was sentenced to 18 years in state prison. At the time of the plea bargain in that case, section 1192.7 precluded plea bargaining a serious felony “unless there [was] insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.” Hence, appellant asserts that the plea bargain is evidence that there was no case against him. This contention is without merit.
This information does not appear in the appellate record.
Where prior uncharged crimes evidence is admitted, a trial court must allow the defendant to present evidence of his acquittal. (People v. Griffin (1967) 66 Cal.2d 459, 465 [when other crimes evidence admitted under Evidence Code section 1101, subdivision (b)]; People v. Mullens, supra, 119 Cal.App.4th at p. 667 [when other crimes evidence admitted under Evidence Code section 1108].) The logic of these cases, as articulated in Griffin, is that competent evidence of another crime is not inadmissible by reason of the defendant’s acquittal, but the proof of the acquittal is also admissible to weaken or rebut the prosecution’s evidence of the other crime. (People v. Jenkins (1970) 3 Cal.App.3d 529, 534.) “Accordingly, the gist of the holding in Griffin is that since ‘evidence of other crimes always involves the risk of serious prejudice, and it is therefore always “to be received with ‘extreme caution’ [citation] any competent or otherwise admissible evidence tending to weaken and rebut the evidence of the other crime should be admissible.”’” (Ibid.)
Prior to the commencement of trial, in connection with the People’s motion to introduce Evidence Code section 1108 evidence of three prior offenses, appellant stated: “First of all, Your Honor, I was not charged and convicted of that crime. [¶] THE COURT: Which crime? [¶] [APPELLANT]: [J. C.], LA012532, but I served a prison term for that, Your Honor. And, also, the case of [P. B.], Your Honor, was a diminished capacity case, which if the People is [sic] going to charge me with those offenses, and I already pled to those offenses, being in a position to where I didn’t have any representation, to even be represented as a person or a human being in either one of those cases, you know, and the probative value of those cases outweighs anything in this trial at this moment.” Later in the hearing, appellant stated: “Your Honor, those weren’t convictions, legally convicted. I wasn’t legally convicted.”
Appellant initially raised this argument in opposition to the trial court admitting evidence of the prior conduct. But he never sought to admit evidence that he was not convicted. When he sought to argue that point to the jury in closing, there was no evidence of that fact in the record. He was therefore precluded from arguing facts which were not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 827-828.)
Furthermore, it was up to appellant to make an offer of proof of evidence he sought to introduce. But he failed to do so or to indicate who was going to testify. Moreover, his statements regarding the J. C. charges variously suggested that he was not charged, he was not convicted, he served a prison term for it, he pled to it, and he was illegally convicted. Even appellant’s “Points and Authorities in Support of Motion to Exclude Evidence of Uncharged Prior Offense” strongly suggests that he was convicted of the offenses related to the J. C. incident, wherein it states: “The instant prior charge case # LA012532 , [J. C.], in which Petitioner served incarcerated time of 10 years.” Based on the contradictory statements, it was impossible for the trial court to determine a basis for admitting appellant’s claim that he was not convicted of charges pertaining to the J. C. incident.
In any event, even if it was error to exclude evidence that appellant was “not convicted” of the J. C. assault, that error was harmless as there was no reasonable probability that a more favorable decision would be obtained had the evidence been admitted. (See People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317, citing People v. Watson, supra, 46 Cal.2d at p. 836.)
V. Imposition of upper term sentences did not violate appellant’s right to a determination by the jury beyond a reasonable doubt, as set forth in Blakely.
A jury convicted appellant of forcible oral copulation, false imprisonment by violence and making criminal threats. It also found to be true the allegations that he had suffered three prior strike felonies and, with respect to count 1, had suffered a prior conviction under subdivision (b) of section 288.
In imposing sentence, the trial court found in aggravation that (1) appellant’s crimes involved great violence, great bodily harm and threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness, (2) appellant had engaged in a pattern of violent conduct that made him a serious danger to society, (3) appellant’s prior convictions were numerous or of increasing seriousness, (4) appellant served prior prison terms and was on parole when the instant offenses occurred, and (5) appellant’s prior performance on parole was unsatisfactory. It found no factors in mitigation.
Prior to the filing of the Blakely decision, the trial court sentenced appellant on count 1 for forcible oral copulation to what it referred to as the “upper term” of 25 years to life because appellant had suffered a prior sex offense conviction under section 288, subdivision (b), within the meaning of section 667.61, subdivisions (a) and (d), tripled as a third strike pursuant to section 1170.12. It imposed an upper term of three years on the false imprisonment and making criminal threat counts, each trebled as a third strike. The latter two offenses were stayed pursuant to section 654. The trial court imposed an additional and consecutive five-year sentence for each of two prior serious felony convictions pursuant to section 667, subdivision (a)(1). It stayed the two 1-year terms under section 667.5, subdivision (b). The resulting aggregate sentence was 85 years to life.
Appellant contends that imposition of upper terms on his convictions deprived him of his right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely. He argues that the trial court imposed the upper terms based upon its finding of factors in aggravation that were never presented to the jury.
Respondent contends that appellant forfeited this contention by failing to raise it in the trial court by objecting to the upper term sentences on this ground. We disagree. The California Supreme Court in Black, supra, 41 Cal.4th 799 concluded that a defendant sentenced before Blakely could not reasonably have anticipated that decision and hence did not forfeit a claim that upper term sentences violated the right to a jury trial by failure to raise it. (Black, supra, at pp. 810-812.) We thus proceed to consider the merits.
In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (Blakely, supra, 542 U.S. at p. 303), must be determined by a jury and proved beyond a reasonable doubt. Earlier this year, in Cunningham, the United States Supreme Court held that California’s determinate sentencing law did not comply with this mandate insofar as it permitted imposition of an upper term sentence based upon aggravating factors not found by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 871.)
In analyzing Cunningham, the California Supreme Court in Black reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black, supra, at p. 813.)
Apprendi v. New Jersey (2000) 530 U.S. 466.
Appellant’s 25-year-to-life sentence on the forcible oral copulation conviction was not an upper term sentence at all. It was the designated sentence under section 667.61 for specified sex offenses if certain specified circumstances were present. There was no choice between an upper, middle and lower term. Furthermore, the factual circumstance necessary to apply section 667.61, that appellant had a prior offense under section 288, subdivision (b), was found by the jury beyond a reasonable doubt. For those reasons, Apprendi, Blakely and Cunningham are inapplicable to count 1.
Section 667.61 provides in part that a person “who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years. . . .” Appellant was convicted of forcible oral copulation, a violation of section 288a, one of the offenses specified in subdivision (c)(6). Subdivision (d)(1) provides that one circumstance authorizing the imposition of the 25-year-to-life term is that “[t]he defendant has been previously convicted of an offense specified in subdivision (c). . . .” Appellant was previously convicted of section 288, subdivision (b), another offense listed in subdivision (c)(4) of section 667.61.
For the reasons set forth in Black, we find no constitutional violation in the trial court’s imposition of the upper term on the false imprisonment and criminal threats counts. “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Black, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) This exception is not to be read too narrowly. (Black, supra, at p. 819.) The fact of prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) This encompasses a finding that prior convictions are numerous and of increasing seriousness. (Id. at pp. 819-820.)
Here, the trial court found appellant’s extensive criminal history supported imposition of the upper term. As this finding was within the prior conviction exception, there was no right to a jury trial. This single factor made defendant eligible for an upper-term sentence, and the trial court was free to consider other factors in imposing an upper-term sentence. (See Black, supra, 41 Cal.4th at pp. 819-820.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST