Opinion
C042691.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. MARIO CANODY, Defendant and Appellant.
A jury convicted defendant Mario Canody of forcible rape and two counts of forcible oral copulation (Pen. Code, §§ 261, subd. (a)(2), 288a, subd. (c)) and found that he was armed with, and used, a deadly weapon in the commission of each crime (Pen. Code, §§ 667.61, subd. (e)(4), 12022.3, subd. (a)). The trial court found defendant had five prior serious felony convictions for robbery within the meaning of the "three strikes law" (Pen. Code, § 667) and sentenced him to state prison for 36 years plus an indeterminate term of 146 years to life.
On appeal, defendant contends the trial court erred by (1) denying his request to impeach the victim with acts underlying her misdemeanor conviction in 1991 for prostitution, and (2) admitting evidence of a later robbery to show a "common plan." We disagree for reasons that follow. However, defendant also contends, and the People concede, several sentencing errors must be corrected. We shall modify the judgment accordingly and affirm as modified.
FACTS
After completing her graveyard shift as a security guard at 4:00 a.m. on June 11, 1998, Loretta B. rode a light rail train to the 8th and O Streets station in Sacramento and began walking home on 7th Street. She was carrying a backpack and was wearing glasses and a uniform with several layers of clothing underneath.
Loretta walked past a person with braided hair she initially thought was a woman. As soon as she passed the person, whom she later identified as defendant, he approached her from behind, covered her mouth, and held a knife against her throat. Defendant pushed Loretta into some bushes, causing her glasses to fall off. Then he told her to get up off the bushes, and she complied. He threatened, "do not scream or Ill cut you."
With defendant directly behind Loretta, they walked about 20 feet to a cement wall and stopped once they were behind it. Defendant ordered her to take off her pants. She removed one leg from her pants and lay down on the concrete. Defendant got on top of her and licked her genitalia while still holding the knife. Then he tried unsuccessfully to put his penis in her vagina. He licked her genitalia again and then successfully inserted his penis. After engaging in intercourse for a few minutes, he suddenly withdrew his penis as if to avoid ejaculating.
Defendant told Loretta to get dressed, and she complied. Then he asked her if she had any money. She told him he could look in her backpack if he wanted. He declined and left the area.
Loretta ran home and told her boyfriend that she had been raped. Shortly thereafter, she called the police department and reported the sexual assault. At around 6:00 a.m., Sacramento Police Officer Jason Palmi met Loretta at her home. She briefly described the attack, provided the clothes she had been wearing, and gave him an unopened condom that she discovered on the ground near the attack. She had not discussed the condom with defendant and did not know to whom it belonged. Loretta accompanied Officer Palmi to the scene of the assault and recovered her eyeglasses from the bushes.
When Loretta was examined at the U.C. Davis Medical Center, she was tearful, cooperative, and quiet. She had several scratches on her face and specks of dirt in her vaginal area. No vaginal trauma was visible, which is not unusual where a victim cooperates with an assailant. A cotton swab sample from inside the vagina was sent to a criminalist for DNA testing.
Following the medical examination, Loretta reported the sexual assault to her employer. When Loretta met with him at 10:00 a.m., she was shaking and crying and was "very obviously in distress." She never returned to work because she declined nighttime shifts and daytime shifts were not available.
Months later, Loretta viewed a photographic lineup and determined defendants picture most closely resembled her attacker. Based on that identification, a search warrant was issued for defendants blood and saliva. The criminalist concluded that the male DNA obtained from Lorettas vaginal swabs matched defendants DNA and did not match that of Lorettas boyfriend.
The prosecution also presented evidence of another crime for which defendant already had been prosecuted and convicted.
At 4:30 a.m. on September 3, 1998, a few months after Lorettas attack, Terri O. was robbed at the light rail station at 8th and O Streets in Sacramento. Terri was carrying a backpack that held her wallet, an address book, an electronic game, and amusement park passes. Just before the robbery, Terri had walked past a black man with dreadlocks, whom she later identified as defendant. Seconds later, Terri felt a hand covering her mouth and nose and another hand reaching around her neck. She also felt a cold metallic object, which she believed was a knife, pressing on her neck. Unable to breathe, Terri tried to pull defendants hand away from her face. He responded, "dont scream, Ill cut you."
At that moment, a light rail train approached the station. Defendant told Terri to give him her backpack. Terri responded by dropping the backpack, running to the train, and climbing aboard. She reported the robbery to the train operator who relayed the report to law enforcement.
Sacramento Police Officer Michael Cooper heard the report and arrived at the 65th Street light rail station shortly thereafter. Cooper entered a train and encountered defendant who was carrying a backpack and who matched Terris description of her assailant.
Officer Cooper detained defendant until Terri arrived for a field show up. Terri identified defendant as the robber. She examined the contents of defendants backpack and found her amusement park tickets and her electronic game.
Defendant was convicted of robbing Terri and sentenced to state prison for 41 years to life.
Testifying on his own behalf, defendant denied having raped Loretta and claimed, instead, that she had voluntarily engaged in sexual intercourse with him in exchange for money on three separate occasions. Each time, he had encountered her as she was walking away from the light rail station and he was walking toward it on his way to work. The two then walked to his nearby apartment and had consensual sex. The first two times, he gave her $35. The third time, he had only $12 to give her. She became angry and left the apartment. He later saw her at a store but he did not attempt to give her the remaining $23.
Defendant admitted he was convicted in 1985 of robbery and was convicted in 1999 of robbery with use of a weapon (the Terri O. offense). He denied that he normally carried a knife, claiming instead that he carried a metal fork with which to eat lunch.
DISCUSSION
I
Defendant contends the trial court committed prejudicial error by excluding evidence of Lorettas prostitution activity in 1991. We disagree.
Prior to trial, the defense sought to introduce evidence of conduct underlying Lorettas misdemeanor conviction in 1991 for violating Penal Code section 647, subdivision (b). The parties evidently assumed the conviction was for engaging in, as opposed to soliciting or agreeing to engage in, an act of prostitution. The defense argued that the evidence was admissible to bolster defendants claim that the sexual intercourse was consensual, and to impeach Lorettas credibility. Although the defense did not make a written motion or submit an affidavit describing the offer of proof as required by Evidence Code section 782, the prosecution acknowledged that Lorettas rap sheet contained such a conviction and that it was the only entry. (Further section references are to the Evidence Code unless otherwise specified.)
The trial court denied the motion. It first ruled that, under section 1103, subdivision (c), neither the prior conviction nor its underlying facts were admissible to prove that Loretta consented to the present sexual acts. The court also ruled that, assuming the act in 1991 was a crime of moral turpitude, it was remote and its admission would be contrary to the policy of protecting alleged rape victims from cross-examination about prior sexual activity with third parties.
On cross-examination at trial, the defense asked Loretta whether she ever had any sexual encounters to make a little extra money. She answered, "No."
The prosecution later called Lorettas former supervisor who testified that she was "very reliable, always on the job doing what she was supposed to do, well liked by the clients."
At the close of the prosecution case, the defense revisited the issue of the conviction in 1991, claiming that the foregoing evidence of Lorettas good character opened the door to contrary evidence. The trial court ruled that, under section 352, the risk of undue prejudice greatly outweighed the probative value of the conviction.
Section 1103, subdivision (c), prohibits a defendant accused of sexual assault offenses from introducing, among other things, evidence of specific instances of the alleged victims previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts alleged. (People v. Chandler (1997) 56 Cal.App.4th 703, 707.) "This rule properly prevents the victim of sexual assault from being herself placed on trial." (People v. Rioz (1984) 161 Cal.App.3d 905, 916.) The rule also recognizes "that evidence of the alleged victims consensual sexual activities with others has little relevance to whether consent was given in a particular instance." (Chandler, supra, 56 Cal.App.4th at p. 707.)
However, subdivision (c)(5) of section 1103 allows this type of evidence, pursuant to the procedures set forth in section 782, for the limited purpose of attacking the victims credibility. Section 782 provides that the defense must file a written motion accompanied by an offer of proof in the form of an affidavit explaining the sexual conduct sought to be admitted and its relevancy in attacking the victims credibility. (& sect; 782, subd. (a)(1) & (2).) If it finds that the offer of proof is sufficient, the court must allow the defense to cross-examine the victim outside of the jurys presence regarding the offer of proof. Thereafter, the court has broad discretion to determine whether the evidence is relevant to the victims credibility and not unduly prejudicial under section 352. (& sect; 782, subd. (a)(4).) In exercising this discretion, the court must take care "that this exception to the general rule barring evidence of a complaining witness prior sexual conduct . . . does not impermissibly encroach upon the rule itself and become a `back door for admitting otherwise inadmissible evidence." (People v. Rioz, supra , 161 Cal.App.3d at pp. 918-919.)
"Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction." (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.) However, "a misdemeanor—-or any other conduct not amounting to a felony—-is a less forceful indicator of immoral character or dishonesty than is a felony." (Id. at p. 296.) Section 352 gives the court broad latitude to exclude impeachment evidence in individual cases. (Ibid.)
"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, italics in original.)
Defendant claims the trial court abused its discretion when it found that the misdemeanor conduct in 1991 was stale or remote. He also claims the court was "simply wrong" in believing that section 1103s "policy" of protecting rape victims overrides the statutes own exception for evidence used to attack the victims credibility. However, he does not claim that the courts balancing of prejudice and probative value pursuant to section 352 was "arbitrary, capricious or patently absurd." (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) Nor could he do so successfully.
Lorettas conduct in 1991 had minimal probative value because (1) it amounted to only a misdemeanor (People v. Wheeler, supra, 4 Cal.4th at p. 296), (2) it was not accompanied by any other criminal conduct, and (3) Loretta led a blameless life for the ensuing 11 years. Regardless of whether it was "stale" or "remote," the isolated incident had "very little effect on the issue[]" whether she testified truthfully at trial. (People v. Yu (1983) 143 Cal.App.3d 358, 377.)
Because the evidence would not have "presented a significantly different picture of the witnesss credibility," its exclusion did not violate defendants rights to due process and to present a defense. (See People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Mincey (1992) 2 Cal.4th 408, 440; People v. Hall (1986) 41 Cal.3d 826, 834.)
Not only did evidence of Lorettas conduct in 1991 have minimal probative value, it had a unique tendency to "evoke an emotional bias against [her]." (People v. Yu, supra, 143 Cal.App.3d at p. 377.) Since the acts relevance for impeachment was slight and its potential for prejudice significant, the trial courts ruling that it was substantially more prejudicial than probative was not an abuse of discretion. (People v. Rodrigues, supra, 8 Cal.4th at p. 1125.)
II
Defendant contends the trial court erred by allowing the introduction of evidence of the subsequent robbery of Terri O. He claims this evidence failed to qualify under section 1101 and was unduly prejudicial under section 352. Neither point has merit.
"Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] On appeal, the trial courts determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]" (People v. Kipp (1998) 18 Cal.4th 349, 369; see People v. Ewoldt (1994) 7 Cal.4th 380, 402-403; People v. Scheid (1997) 16 Cal.4th 1, 14.)
"In order to be relevant as a common design or plan, `evidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.] We have explained that `the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, and that `evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 111, original italics.)
Here, the disputed issue was whether defendants conduct with Loretta was a sexual assault or a consensual encounter. To show the conduct was an assault, the prosecutor offered evidence that the acts preceding it were identical to those that preceded another violent episode, the robbery of Terri O.
Both acts occurred in the early morning hours within a couple of blocks of each other; both victims were females walking alone, either to or from the light rail station; both females were carrying backpacks; both females were grabbed from behind and a knife was held to their throats; both females were ordered not to "scream" or they would be "cut"; and defendant expressed at least some interest in the contents of each backpack.
These "various acts" may naturally be explained as "caused by a general plan" to subdue isolated female transit riders in order to satisfy a desire for sex or money. (People v. Catlin, supra, 26 Cal.4th at p. 111.) The fact defendant sought sex in one attack and money in the other may "affect the strength of the inference," but it did not require exclusion of the evidence. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
Defendant complains the similarities are "inherent in any street crime." But the common plan "need not be distinctive or unusual." (People v. Ewoldt, supra , 7 Cal.4th at p. 403.) In any event, the combination of factors described above is not inherent in the myriad street crimes that have come before this court.
Prior to allowing the introduction of other-crimes evidence pursuant to section 1101, the court "must be satisfied that its probative value outweighs any prejudicial effect. [Citations.]" (People v. Dancer, supra, 45 Cal.App.4th at p. 1690; see § 352.) Factors to be considered include "(1) whether the inference of a common design or plan is strong; (2) whether the source of evidence concerning the present offense is independent of and unaffected by information about the uncharged offense; (3) whether the defendant was punished for the prior misconduct; (4) whether the uncharged offense is more inflammatory than the charged offense; and (5) whether the two incidents occurred close in time." (People v. Dancer, supra, 45 Cal.App.4th at p. 1690.)
Defendant acknowledges the last four factors favor admission of the attack on Terri O. For reasons we have explained, we reject defendants claim that the first factor favored exclusion because the inference of a common scheme or plan was "exceptionally weak." Introduction of the evidence was not an abuse of discretion under section 352, in that it was not arbitrary, capricious, or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
III
Defendant contends, and the People concede, that the trial court committed sentencing and clerical errors which must be corrected.
A. Minimum parole eligibility period
Defendant points out, and the People agree, that his minimum parole eligibility period is 172 years, consisting of 26 years for the robbery of Terri O. [case No. 98F07938], 45 years for the oral copulation conviction in count two, 43 years for the oral copulation conviction in count three, 43 years for the rape in count four, and 15 years for three prior serious felony convictions. However, the minutes of the sentencing hearing erroneously state periods totaling 182 years. We shall direct the trial court to correct the minutes and the abstract of judgment to show a period of 172 years.
B. Abstract of judgment
Defendant notes, and the People concede, that the abstract of judgment erroneously reflects both a term of 45 years to life and a term of 15 years to life for count two. The abstract also reflects an enhancement on count two, when none was imposed. The term of 15 years to life and the enhancement on count two must be stricken.
Defendant also contends, and the People concede, that the determinate sentence page of the abstract of judgment must be stricken because the court imposed indeterminate sentences on all counts. In addition, the People assert, and defendant agrees, that the indeterminate sentence page should reflect the courts order that the sentences for each count are imposed consecutively. As defendant notes, the weapon-use enhancement (Pen. Code, § 12022, subd. (b)) on case No. 98F07938 and the weapon-use enhancements (Pen. Code, § 12022.3, subd. (a)) on counts three and four are properly listed on the abstract of judgment.
Defendant argues, and the People concede, that the abstract of judgment must be corrected to reflect the date of the sentencing hearing, which was November 6, 2002. And the first page of the abstract must be amended to show the correct case number, 98F07938.
C. Presentence credits
Defendants opening brief contends the matter must be remanded for resentencing because neither the reporters transcript nor the sentencing minute order awards defendant any presentence credits or justifies the presentence credits listed on the abstract of judgment. The People respond that an appropriate credit determination may be made from the probation report. Defendants reply brief concedes that the probation reports figures may be used to compute his credits.
The probation report states that defendant was housed in the Sacramento County Jail for trial on the Terri O. robbery from September 3, 1998, through April 26, 1999 (236 days) [case No. 98F07938]. Following conviction and sentence in that case, he was housed in state prison from April 27, 1999, through August 29, 2001 (856 days). Then he was returned to Sacramento County Jail from August 30, 2001, through November 6, 2002 (434 days), for trial in the present case.
Thus, in case No. 98F07938, defendant is entitled to 236 days of presentence custody credit and 35 days of presentence conduct credit. (Pen. Code, §§ 2900.5, 2933.1, subd. (c).) He also is entitled to 856 days of postsentence credit for the time he spent in state prison before being returned to Sacramento County Jail. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) Finally, he is entitled to 434 days of postsentence credit for the time he served in Sacramento County Jail during trial of the present case. (Ibid.) Under In re Cervera (2001) 24 Cal.4th 1073, the postsentence credit must be credited against the one-year weapon-use enhancement (Pen. Code, § 12022, subd. (b)), not against the "three strikes" sentence of 25 years to life. (In re Cervera, supra, at pp. 1080-1083.)
As we will explain, defendant is not entitled to presentence custody or conduct credit in case No. 01F05749. (Pen. Code, § 2900.5, subd. (b).)
"[W]here a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a `but for cause of the earlier restraint." (People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194.)
The Terri O. and Loretta B. offenses are "unrelated incidents of misconduct" within the meaning of People v. Bruner, supra, 9 Cal.4th at page 1193. Defendant was a sentenced prisoner on the Terri O. matter throughout his "period of presentence custody" on the Loretta B. matter. (Ibid .) But for his conduct against Loretta B., defendant still would have been under the restraint of his prison sentence. Defendants argument overlooks the operation of section 2900.5 and Bruner.
DISPOSITION
The judgment is modified to award defendant 236 days of presentence custody credit, 35 days of presentence conduct credit, and 1,290 days of postsentence credit in case No. 98F07938. As modified, the judgment is affirmed. The trial court is directed to correct the sentencing minute order to show a minimum parole ineligibility period of 172 years, and to correct the abstract of judgment as stated in part III, ante. The trial court also is directed to forward a certified copy of the amended abstract to the Department of Corrections.
We concur: RAYE, J. and MORRISON, J.