Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC065364
SIMONS, J.
Defendant Charles Joseph Carter (appellant) appeals his conviction by jury trial of rape by means of force or fear (Pen. Code, § 261, subd. (a)(2)) and attempted oral copulation (Pen. Code, §§ 288a, subd. (c)(2), 664). The court found true four prior felony conviction allegations (Pen. Code, §§ 667, subd. (a), 667.6, subd. (a), 1170.12, subd. (c)) and one prior felony conviction allegation (Pen. Code, §§ 667.61, subd. (d)(1), 1203, subd. (e)(4).) Appellant raises claims of evidentiary, instructional and sentencing error. He also contends the attempted oral copulation conviction is not supported by substantial evidence. We reject appellant’s contentions and affirm.
The jury found appellant not guilty of residential burglary. (Pen. Code, § 460, subd. (a).) It also rejected allegations that the rape was committed during a burglary with intent to commit rape and the rape was committed during a burglary. (Pen. Code, § 667.61, subds. (d)(4) & (e)(2).)
Appellant was sentenced to 80 years to life in state prison.
BACKGROUND
In November 2006, victim Kelly S. met appellant at a club in Foster City. They began dating a couple of weeks later. Appellant told Kelly he used to play football for the San Francisco 49ers (49ers). After about a month of dating once a week, appellant asked Kelly to move into his Livermore home and suggested they get married. Kelly declined because she did not really know appellant and was not that comfortable in their relationship. However, after dating for a couple of more months, she said she would move in with him. When Kelly introduced her 13-year-old daughter to appellant, her daughter did not like him. Kelly felt ambivalent about her relationship with appellant.
Subsequently, after appellant received phone calls from another woman and stated the calls were “wrong number[s],” Kelly began to doubt his truthfulness. On approximately June 1, 2007, Kelly received a call from a woman claiming to be appellant’s girlfriend and telling Kelly to “just leave [appellant] alone.” Kelly told the caller that she (Kelly) did not love appellant and that the caller could have him. Kelly then told appellant she no longer wanted to see him.
Thereafter, Kelly agreed that she and appellant would see each other as friends, and they met for lunch. He told her he wanted them to get back together and tried to kiss her, but she refused his advances. After appellant insisted she get into his new car, Kelly did so. He again told her he wanted to be with her and tried to get her to remain inside his car. She refused. Kelly returned to her car and appellant followed her to her home. While she was driving home, Kelly, frightened by appellant’s conduct, called her friend and coworker, Tom, and told him what was happening. After Tom told her that appellant was stalking her, she stopped her car and appellant stopped his car too. She asked appellant what he was doing, and when appellant saw she was on the phone, he grabbed the phone from her and heard Tom tell her, “call the police.” Appellant then swore at Tom and hung up on him. Appellant started to cry, Kelly again told him she could no longer be with him and he left, saying, “I just want to be with you.” Kelly felt uncomfortable because she did not think that appellant understood their relationship was over.
Six days later, on June 15, 2007, appellant called Kelly twice and asked to see her that evening. She agreed to meet him that evening “as friends,” but later left him a message saying she was unable to see him. When he called back and invited her to go to a party at a friend’s house and said nothing would happen, Kelly agreed to go. Appellant showed up at Kelly’s apartment at 10:30 p.m. He said he had been drinking, but did not appear to be intoxicated. At the party, appellant asked Kelly about her relationship with Tom, and she told appellant that she and Tom were good friends who worked together. Kelly told a person at the party that appellant was her “ex-boyfriend” and that she and appellant were “just friends.” Kelly did not have much to drink at the party, but appellant was drinking. After a couple hours, appellant suggested to Kelly that they leave, and he drove them to her apartment. Kelly got out of the car and thanked appellant for taking her to the party.
As Kelly walked to her apartment, she noticed that appellant had parked in her parking space. He then yelled her name and asked if he could use her bathroom. Kelly agreed, and once inside the apartment, he went straight to the bathroom. He then entered the kitchen and tried to hug Kelly from behind. She pushed him away and said, “I don’t want to.” Appellant sat down in the living room, said he did not feel well and was sleepy, and asked if he could spend the night at her apartment. Kelly told him he could stay if he was respectful. She complied with his request to sit next to him and talk. Appellant again apologized, tried to hold her and kiss her, and said he wanted to be with her. She pushed him away, stood up and walked away. She brought him a blanket, again told him to be respectful and then went into her bedroom and locked the door. Soon after, she went into the kitchen and when she reentered her bedroom, forgot to lock the door. She placed her cell phone under her pillow and went to sleep.
As Kelly was falling asleep, she heard appellant enter her bedroom. He then grabbed her and turned her to face him. He was naked. When she tried to get up, he held her down. He then laid on top of her and said, “I want to have you. It will be the last time.” Kelly repeatedly said she “didn’t want to” and tried to push him away. She bit his lip when he tried to kiss her and unsuccessfully resisted as he tried to pull off her pants. After removing her pants, he attempted to insert his penis into her vagina and she tried to push him away. Appellant also attempted to orally copulate her while she repeatedly told him “no.” When he saw that she was trying to get her cell phone, he grabbed it from her and threw it on the floor. Despite Kelly’s resistance, appellant repeatedly inserted his penis into her vagina. She was crying and telling him to stop. After five or 10 minutes, appellant stopped after he ejaculated.
Appellant then went into the bathroom and Kelly went into her daughter’s bedroom. When she returned to her own bedroom, appellant was lying there naked and asked her to lie next to him. She did so briefly because she was afraid. When she thought appellant was asleep, she went into her daughter’s bedroom. Kelly felt very “humiliated,” “dirty” and “confused,” and spent the rest of the night on the sofa.
In the morning, appellant came out of the bedroom, entered the living room and tried to lie on top of Kelly. She pushed him away, stood up quickly and asked him, “Why do you do this to me?” She told him to leave her alone and go. She also told him she could not have sex again because she had diarrhea. He went into the bathroom and showered. He then dressed, told her he had feelings for her and left.
Kelly called her friend, Regina, and told her what had happened. Regina told Kelly that Kelly had been raped; Regina had advised Kelly to get a restraining order against appellant prior to the charged incident. Thereafter, appellant called Kelly and asked what she was doing later that day. She told him not to call her anymore, said, “get out of my life,” and hung up on him.
Later that afternoon, Kelly reported the incident to the police. She first talked with Officer Wilson, and then with Detective Derris. Thereafter, she accompanied the officers back to her apartment. While there, she received two or three calls from appellant on her cell phone. The police collected the clothing Kelly had worn during the sexual assault. Kelly then underwent a sexual assault physical examination. An analysis of the sex crime kit taken from Kelly’s examination revealed semen taken from Kelly’s vaginal and cervical swabs. No test was performed to identify whose semen was present on the swabs.
When Kelly returned to her apartment after the examination, she continued to receive calls from appellant, but did not speak with him. That evening appellant left Kelly a message saying he was at a gas station and on his way to her apartment. She called the police and reported appellant’s call. When appellant arrived at the parking lot of Kelly’s apartment, he was arrested.
Foster City Police Officer Wilson interviewed Kelly on June 16, 2007, and determined a crime had been committed. After Wilson ran a records check and discovered appellant was a registered sex offender, Wilson asked Kelly if she was aware that appellant had been convicted of a sexual crime in California. Kelly appeared “shocked” and said she had no idea. Later that day Derris interviewed Kelly. When Kelly asked him if appellant had any similar “priors” or “history,” Derris refused to disclose any information. Kelly told Derris she broke up with appellant about four or six weeks before because he had cheated on her.
Wilson was later admonished by Derris for disclosing the information about appellant to Kelly.
Regina testified that when Kelly called her on the morning of June 16, 2007, Kelly was crying and said appellant had forced her to have sex with him. Regina told Kelly to go to the police, not answer appellant’s calls and change her phone number. Kelly told Regina she was going to tell Tom what had happened. Later, Regina got a call from Tom asking her to help Kelly.
Kelly’s mother, H.G., testified that she was visiting Kelly on April 30, 2007, when appellant stopped by Kelly’s apartment for a few minutes. Kelly later told H.G. that Kelly had previously dated appellant but they ended the relationship and were now friends.
Appellant’s Statement To Police
On the evening of June 16, 2007, Derris conducted a videotaped interview of appellant after appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). Appellant initially said Kelly was “disgruntled” and “upset.” He said Kelly was upset with him because he refused to buy a house with her after learning that her credit was bad. She also tried to make him jealous by telling him she had a new boyfriend. However, she admitted that she still had feelings for appellant. He asserted that their intercourse on the previous evening was consensual and that they did not engage in oral sex. After they had sex, Kelly told appellant she felt like a whore. Appellant said Kelly knew about his prior convictions and was making the rape allegation to hurt him because he had a woman visiting him from Brazil. In addition, he said Kelly was trying to get title to his property. Appellant admitted that three women had previously accused him of rape, but said he was young when he was convicted. At the end of the interview, appellant said, “Fucking girl. I’m going to kill her.”
The interview videotape was played for the jury and admitted into evidence. A transcript of the interview was available to the jury while they watched the videotape, but was not admitted into evidence. However, pursuant to California Rules of Court, rule 2.1040, the transcript was filed and included in the clerk’s transcript. Because both parties cite to the transcript in their briefs and no issue has been raised as to its accuracy, we will consider the transcript in addition to viewing the videotape.
Appellant’s Uncharged Sexual Misconduct
The 1990 Christina Incident
In 1990, Christina, an 18-year-old San Jose State University student, was helping a friend move out of a dormitory at San Francisco State University (SF State). While eating at the SF State cafeteria, appellant passed Christina a note bearing a name and phone number. When Christina and her friend went back to the friend’s dorm room, appellant was there and began a conversation with Christina. He gave her a more complete phone number and they later spoke on the phone and agreed to meet on March 29, 1990.
On that date, Christina followed appellant to his dorm room and watched television while he made phone calls. They then began kissing. When she resisted his attempts to touch her breasts and penetrate her vagina with his finger, he pushed her onto the bed and told her he was a football player and worked out. She was unable to push him off of her and kept telling him to stop. He repeatedly told her everything would be okay and he would respect her. After digitally penetrating her vagina, he inserted his penis in her vagina while she repeatedly tried to push him off of her. After about 10 minutes, appellant stopped and told her to go into the bathroom across the hall and clean up. Then, appellant invited her to get some food at the cafeteria with some of his friends and she agreed. Thereafter, when she went back to his room to get her things, he began kissing and touching her again, and she grabbed her things and left. Appellant called her a few times the next day, but she did not return his calls. Several days later she filed a report with San Francisco police. She also filed a complaint with the SF State police.
On April 16, 1990, SF State Police Investigator Denola interviewed appellant regarding Christina’s rape report. Initially, appellant denied knowing Christina and said the only female he spent time with was his fiancée. Thereafter, appellant told Denola that he and Christina were friends and had been together on March 29, 1990. Eventually appellant admitted that he and Christina watched television, kissed and after he penetrated her vagina with his finger, she said it was “too soon” and he stopped. About 15 minutes later, they started kissing again and she did not object when he penetrated her vagina with his fingers. They then had consensual intercourse and, after she indicated she wanted to stop the intercourse, they did so and went to dinner. Appellant said Christina became angry when she discovered he had a fiancée.
At trial K.W. was referred to as K.I.
In September 1990, K.W. was a 17-year-old freshman at SF State. She originally met appellant while she was working at the SF State cafeteria. Thereafter, she saw him while walking on campus, and on one occasion at a party. On September 13, 1990, appellant and “Derrick,” knocked on K.W.’s dorm room door and asked to use her phone. While Derrick used the phone, appellant sat on K.W.’s bed and kept trying to pull K.W. onto his lap. K.W. kept saying “no” and pulling her arm back. Eventually, appellant succeeded in pulling K.W. onto the bed and Derrick asked him, “How much time do you need?” Derrick left the dorm room despite K.W.’s begging him to stay. Appellant then laid K.W. on the bed and pulled her shorts to the side while she tried to push him off of her and repeatedly told him to stop. He then penetrated her vagina with his penis while K.W. was crying. Appellant then stopped, sat up and said to K.W., “I thought this is what you wanted. Why are you upset? Why are you crying?” K.W. told him it was not what she wanted; he had forced her into having intercourse. She asked him to leave. Just then, K.W.’s friend called and appellant left. The friend advised K.W. to call the police. K.W. did not go to the police that day because she felt “scared” and “confused.” Two weeks later, K.W. filed a report with the SF State police.
K.W. had known Derrick for about a week or two.
On September 13, 1990, SF State Police Detective Jones interviewed appellant regarding the sexual assault allegations made by K.W. At the time, Jones was aware of Christina’s allegations. Appellant said he and a friend went to K.W.’s room to pick up a meal card, after which his friend left him alone with K.W. in her dorm room. After they talked and kissed, he penetrated her with his finger and she told him to stop. He then got up and left. Appellant told Jones he thought K.W. was upset because she thought he had a lot of girlfriends and he wouldn’t spend enough time with her. Appellant admitted having his penis out of his pants, but denied penetrating K.W. with his penis. He also said he was unaware of her age. When Jones asked appellant if he had forcibly grabbed K.W., appellant said, “Yeah, I was playing with her.”
On September 27, 1990, San Francisco District Attorney Investigator Landini interviewed appellant regarding the K.W. sexual assault allegations. Appellant admitted digitally penetrating K.W., but adamantly denied having sexual intercourse with her. After Landini told him he was facing serious consequences if this type of behavior continued and invited him to tell the truth, appellant tearfully admitted that he had sexual intercourse with K.W.
Before the prosecution rested, the parties stipulated that the prosecution had proved by a preponderance of the evidence that appellant was convicted by jury trial on February 3, 1992, in San Francisco Superior Court of one count of rape by force or fear against Christina, one count of penetration by force or fear against Christina, one count of rape by force or fear against K.W., and one count of penetration by force or fear against K.W.
The 1999 Adriana Incident
In August 1999, Adriana was a senior at the University of California at Berkeley (Cal), lived off campus, and worked part time at a Richmond finance company. In early August, she met appellant as she was leaving work and walking to her car. Appellant struck up a conversation and they talked for about 15 to 30 minutes. Adriana found appellant to be attractive and eloquent and he “seemed like a nice guy.” They exchanged telephone numbers and began dating. During their first sexual encounter, they had sexual intercourse even though Adriana did not “really want to have sex.” However, she was not sure she made that clear to him. Thereafter, Adriana and appellant continued dating but had many conversations in which she told him she did not want to have sexual intercourse because she did not want to risk getting pregnant or contracting a sexually transmitted disease.
On August 28, 1999, Adriana was home alone studying. When appellant called and learned that Adriana had had a disagreement with her roommates, he asked to come over and she said “no.” He told her he would call her back in about 15 minutes. Instead, he knocked on her door and said he was worried about her and wanted to make sure she was okay. Although Adriana was annoyed, she let him in and told him she was studying. He laid next to her on the bed while she studied and then he fell asleep, which further annoyed her. She continued studying and then fell asleep with her clothes on.
Adriana, a very heavy sleeper, awoke to find appellant on top of her and his penis inside her vagina. When she told him to get off of her, appellant tried to calm her down by saying it was okay. She was “scared,” and unable to move because her hands were pinned down. She realized he had removed her sweatpants. After she told him several times to get off of her, he stopped. Adriana ran out of the room and into her roommate’s bedroom. Appellant asked if she was okay, they argued and she said she had told him she did not want to have sex. Appellant begged her not to say anything and offered her things, such as his car, in return for her not saying anything. When she heard him leave, she came out of the bedroom. She retrieved a knife from the kitchen and kept it with her all night because she did not know if he was coming back and she was afraid. The next morning when her roommates came home, she told them what had happened. They told her she had been raped and advised her to call the police. She then reported the incident to police. During the time that Adriana dated appellant, he never told her about his criminal background. Subsequently, Adriana testified at appellant’s parole hearing.
At trial, the parties stipulated that on August 31, 2000, a Contra Costa Superior Court jury acquitted appellant of rape by force or fear, battery and rape of an unconscious person against Adriana.
The Defense
Appellant was 41 years old at the time of trial. He testified that he had played on the practice squad for the 49ers and that is what he told Kelly. He admitted committing the acts which resulted in his convictions for the offenses against Christina and K.W. He said that although he had denied any wrongdoing against Christina, when he was imprisoned he sent her a letter of apology and participated in psychological counseling. He said he was sorry for causing K.W.’s pain but did not send her an apology because he did not know how to contact her.
On cross-examination, appellant admitted lying to the police and at his trial, regarding the Christina and K.W. incidents.
Appellant testified that on June 10, 2007, Kelly became upset following a call from appellant’s former girlfriend “C.,” and he and Kelly met to talk about it. Thereafter, while he was showing Kelly his new car, she received a call from Tom; appellant took the phone, called Tom a “jackass” and hung up. Kelly told appellant Tom was her new boyfriend, but she was going to break up with Tom.
On June 15, 2007, appellant realized he still loved Kelly, so he called her and invited her to dinner and the party. She later agreed that he would pick her up at her apartment before the party. Appellant said Kelly appeared to have a good time at the party. They left the party and went back to Kelly’s apartment. On the way, Kelly asked him how he felt about her and he said he loved her and wanted to maintain their relationship. When he told her he needed to stop to use a restroom, Kelly encouraged him to wait to use her bathroom. At Kelly’s apartment, he parked in her guest parking stall and went inside to use the bathroom. When he attempted to hug her in the kitchen, she said they needed to talk so they went into the living room. After they discussed the issue of C. and appellant told Kelly he had never slept with her, Kelly suggested that appellant was tired and had been drinking and should sleep on her couch.
Appellant was then awakened by Kelly calling his name while she stood at the doorway of her bedroom. She asked him what time he needed to be at work so she could set the alarm clock. She told him he could lie in her bed but she “[didn’t] want to do anything.” She then told him she needed to talk. They talked about her relationship with Tom and their relationship with each other and then started to kiss and hug and, eventually, had intercourse. Appellant denied having or attempting to have oral sex with Kelly. The next morning appellant asked Kelly if she wanted to have sex again and she declined, saying she had a stomach ache. As he was leaving to go to work she said she had scratches on her knee and wanted to talk.
Later when he called her she said they should not see each other again because she was seeing someone else. The next day, after she did not answer his calls, he went to her apartment, where he was arrested.
Appellant denied raping Kelly.
Rebuttal
Personnel from the 49ers testified there was no record of appellant signing an active player or practice player contract with the 49ers.
DISCUSSION
I. The Prior Uncharged Sexual Misconduct Evidence Was Properly Admitted
Appellant contends the court abused its discretion under Evidence Code section 352 by permitting the prosecution to introduce evidence of his past sexual misconduct pursuant to sections 1101 and 1108. He contends the error violated his constitutional rights to due process and a fair trial.
All further undesignated section references are to the Evidence Code.
Section 1101, subdivision (a), provides that subject to certain exceptions, evidence of a person’s character or trait of character in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct is inadmissible when offered to prove the person’s conduct on a specified occasion.
A. In Limine Motions
Prior to trial, the prosecutor filed an in limine motion seeking to admit evidence of four prior incidents of appellant’s sexual misconduct under section 1108. She argued that at least two of the four prior incidents were “nearly identical” to the instant case and all four had “elements of substantial similarity.” She also argued that the probative value of the prior incidents was “extremely high.” The prosecutor also sought admission of the evidence under section 1101, subdivision (b), (hereafter 1101(b)) on the ground that it was relevant to establish appellant’s knowledge that his conduct constituted a crime, that appellant had the intent to commit the charged offenses and was not mistaken about Kelly’s consent.
In addition to the prior incidents against Christina, K.W., and Adriana, the prosecutor also sought to admit evidence of appellant’s alleged 1985 rape of a woman in her Cal dormitory room. Ultimately, the court excluded this evidence.
Appellant moved in limine to exclude the evidence of his prior charged and uncharged sex offenses pursuant to section 352. He argued that the prior incidents were distinguishable from the instant case, were remote in time, would lead to confusion of issues, and would result in an undue consumption of trial time.
B. In Limine Rulings
The court admitted the 1990 incidents against Christina and K.W. under sections 1108 and 1101(b). It found that the facts of the 1990 incidents were sufficiently similar to the instant case. For purposes of section 1101(b), the court found that the 1990 incidents were highly probative on the issues of knowledge and absence of mistake, as relevant to appellant’s consent defense. It also found that the 1990 incidents were not more inflammatory than the charged offense and would not involve an undue consumption of time. The court concluded that, for purposes of section 1108, the same findings made the 1990 incidents highly probative in the instant case.
The court admitted the 1999 incident against Adriana under section 1101(b) and 1108. It found there was a high degree of similarity between the 1999 incident and the instant case, the 1999 incident had a “high degree” of probative value, its admission would not involve an undue consumption of time, and the 1999 incident was not unduly inflammatory compared to the instant case. The court concluded the 1999 incident was admissible under section 1101(b) to prove knowledge and the absence of mistake, and admissible under section 1108 as a prior act of sexual misconduct.
Finally, the court concluded that appellant’s 1990 crimes against Christina and K.W. and a 2006 misdemeanor theft conviction were crimes of moral turpitude and were admissible to impeach appellant if he testified.
C. Jury Instructions Given
Pursuant to CALCRIM No. 375, the court instructed the jury that it could consider appellant’s uncharged offenses, if proven by a preponderance of the evidence, for the limited purpose of deciding whether appellant’s alleged actions were the result of mistake or accident, he had a plan to commit the offenses alleged in this case, or he reasonably and in good faith believed that Kelly consented. The jury was also instructed that it could not conclude from the evidence of appellant’s prior uncharged offenses that appellant has a bad character or is disposed to commit crime.
Pursuant to CALCRIM No. 1191, the court instructed the jury that the prosecution had presented evidence that appellant committed rape by force or fear and penetration by a foreign object by force or fear, that were not charged in the instant case. It also instructed, if the jury concluded that such evidence was proven by a preponderance of the evidence, it “may” conclude that appellant was “disposed or inclined to commit sexual offenses, and based on that decision, also conclude that [appellant] was likely to commit and did commit rape by force or fear and attempted oral copulation, as charged here. If you conclude that [appellant] committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that [appellant] is guilty of rape by force or fear or attempted oral copulation. The People must still prove each element of the charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining [appellant’s] credibility.”
Appellant contends the evidence of his 1990 and 1999 sexual misconduct should not have been admitted under either sections 1101(b) or 1108 because, under section 352, the probative value of the evidence was outweighed by its prejudicial effect. He argues: First, the remoteness of the 1990 incidents was a significant factor in favor of exclusion. Second, the fact that he was acquitted of the 1999 incident enhanced the prejudicial effect and lessened the probative value of the 1999 evidence. Third, the prior misconduct evidence consumed a significant portion of his trial; six of the 15 witnesses dealt exclusively with the prior incidents. Fourth, there was a high probability of confusing the jury in admitting the prior misconduct evidence. Finally, appellant argues the prior acts of sexual abuse were highly inflammatory.
In a related argument, appellant asserts the in limine motions on this issue consumed a significant amount of pretrial time, a factor militating in favor of exclusion of the evidence.
Section 1108 permits the trier of fact to consider a defendant’s prior uncharged sex offenses as propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912; People v. Pierce (2002) 104 Cal.App.4th 893, 897 (Pierce).) In enacting section 1108, the Legislature determined that evidence of uncharged sex offenses is so uniquely probative in sex crime prosecutions that it is presumed admissible without regard to the limitations of section 1101. (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.)
“[S]ection 1108 expressly reserves the trial court’s power to exclude evidence as more prejudicial than probative under... section 352, a matter over which the trial court exercises broad discretion. [Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 797.) Similarly, evidence of uncharged misconduct may be excluded under section 1101(b) if, pursuant to section 352, its prejudicial effect substantially outweighs its probative value. (People v. Kelly (2007) 42 Cal.4th 763, 783.) The trial court enjoys broad discretion in conducting the balancing under section 352, and we reverse the court’s ruling only if the exercise of discretion was “ ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).)
1. Remoteness
We reject appellant’s claim that, because the 1990 offenses against Christina and K.W. occurred 17 years before the charged offenses, evidence of the 1990 offenses was too remote. The passage of a substantial length of time does not automatically render the prior incidents inadmissible, and no specific time limits have been established in determining when an uncharged offense is too remote. (Branch, supra, 91 Cal.App.4th at p. 284 [30-year time lapse]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393, 1395 [18-25 year time lapse]; People v. Soto (1998) 64 Cal.App.4th 966, 984 [more than 20 year time lapse].) Moreover, “significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.]” (Branch, at p. 285; accord, Pierce, supra, 104 Cal.App.4th at p. 900.)
The evidence of appellant’s 1990 prior sexual misconduct against Christina and K.W. was extremely probative of appellant’s unwillingness to stop when a woman he is dating rebuffs his sexual advances. In a situation such as this, the 17-year passage of time between the prior and charged offenses is less significant. Moreover, any dissimilarities in the alleged incidents went to the weight, not the admissibility, of the evidence. (People v. Mullens (2004) 119 Cal.App.4th 648, 660.)
2. Acquittal
Appellant concedes that his acquittal of the 2000 charges against Adriana does not compel exclusion of this evidence. Assuming he is correct that the acquittal lessens the probative value, while increasing the undue prejudice of such evidence, admission of the evidence was not an abuse of discretion. Like the prior incidents involving Christina and K.W., the prior incident involving Adriana was extremely probative of appellant’s sexual misconduct when a woman he is dating rebuffs his sexual advances. Appellant testified, and the parties stipulated, that he was acquitted of the 2000 charges against Adriana of rape by force or fear, battery and rape of an unconscious person. Any risk that the jury might punish him for his uncharged offenses against Adriana regardless of whether it determined he was guilty of the charged offenses against Kelly was counterbalanced by the jury instructions on reasonable doubt (CALCRIM Nos. 103, 220, 359, 375, 1191) and the necessary proof of each element of the charged offenses (CALCRIM Nos. 1000, 1015). We presume the jury understood and followed these instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)
3. Consumption of Time
We also reject appellant’s claim of undue consumption of time. The determination of whether section 1108 evidence will consume undue trial time is left to the sound discretion of the trial court. (People v. Fitch (1997) 55 Cal.App.4th 172, 183.) Here, the jury reached its verdict on day 16 of the trial. The witnesses regarding appellant’s 1990 and 1999 uncharged offenses testified during a portion of three days of trial, and none of these witnesses’ testimony was particularly lengthy. In addition, appellant’s assertion that the pretrial in limine discussion regarding the admissibility of the uncharged offenses consumed an undue amount of time is belied by the record before us, which indicates that the discussion commenced and was concluded in less than one hour. Appellant has failed to establish that the court abused its discretion in determining that evidence of the 1990 and 1999 uncharged offenses would result in an undue consumption of trial time.
4. Jury Confusion
Appellant contends that the probability of confusing the jury is reflected by the fact that the prosecutor spent a “considerable amount of time explaining the reasonable doubt and preponderance of evidence standards and how the jury could consider the challenged evidence when determining appellant’s guilt.” The prosecutor’s closing argument consumed approximately 61 pages of the nine-volume reporter’s transcript and her rebuttal argument consumed approximately six pages. Appellant points to 11 of the 67 pages of argument by the prosecutor and asserts this “considerable amount of time” led to a probability of juror confusion. The contention lacks merit. In light of the prosecutor’s entire closing argument, the time spent on the challenged explanation is not excessive. Moreover, the argument was not inaccurate and merely highlighted the instructions given by the court. No probability of juror confusion is demonstrated.
D. Inflammatory
Finally, we reject appellant’s contention that the 1990 and 1999 prior uncharged offenses were highly inflammatory. In particular, he argues that in the prior incidents, he relied on his “good looks, charming behavior, and friendship” to take advantage of Christina, K.W., and Adriana “in order to satisfy his own selfish needs,” and positioned himself to be alone with each of the women at the time of the assaults. He argues that his “cold, predatory behavior” in committing each of the uncharged offenses inflamed the jury against him.
Appellant’s argument fails to demonstrate that the prior uncharged sex crimes evidence was more inflammatory than the evidence of the charged offense. (See People v. Mullens, supra, 119 Cal.App.4th at p. 660.) None of the prior offenses involved graphic descriptions of physical injury to the victims. In the prior incidents as well as the charged incident, the jury could infer that appellant relied on his “good looks, charming behavior, and friendship” to take advantage of his victims.
II. Any Error in Instructing the Jury with CALCRIM No. 361 Was Harmless
Next, appellant contends the court erred in instructing the jury pursuant to CALCRIM No. 361: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Appellant correctly asserts that despite his failure to object below to the CALCRIM No. 361 instruction, the claim is not waived because “an appellate court may... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, §§ 1259, 1469; see also People v. Coffman and Marrow (2004) 34 Cal.4th 1, 103, fn. 34.)
Appellant contends the instruction was erroneously given because it was not supported by the evidence. He argues that, when testifying on his own behalf, he did not fail to deny or explain any of the evidence offered against him which he could be expected to deny or explain because of facts within his knowledge.
CALCRIM No. 361 informs jurors that they may draw inferences unfavorable to the defendant from his failure to explain or deny evidence presented in the prosecution’s case. (People v. Saddler (1979) 24 Cal.3d 671, 682 (Saddler); People v. Lamer (2003) 110 Cal.App.4th 1463, 1470 (Lamer).) CALCRIM No. 361 is consistent with section 413. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067.)
Section 413 provides: “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case.”
Appellant argues that the CALCRIM No. 361 instruction was erroneously given here because there were no significant omissions in his testimony; he denied the charges and offered a version of the incident which differed from the prosecution’s case. He argues the instruction was prejudicial because the case amounted to a credibility contest between him and Kelly and the instruction suggested to the jury that his testimony was not believable because he may have failed to deny or explain adverse evidence.
After reviewing appellant’s testimony, we do not find anything that he failed to explain or deny, and do not find his explanations while testifying bizarre or implausible. His testimony contradicted the prosecution’s evidence, but that does not justify giving the CALCRIM No. 361 instruction. (Bench Notes to CALCRIM No. 361 (2009-2010 ed.) p. 138.) Therefore, it appears the court erred in giving the instruction. However, we conclude the error is harmless under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836). (Saddler, supra, 24 Cal.3d at p. 683; Lamer, supra, 110 Cal.App.4th at p. 1471.)
The CALCRIM No. 361 instruction does not direct the jury to draw an adverse inference. Instead, it applies only if the jury finds that the defendant failed to explain or deny evidence, in which case it permits the jury to consider his failure to explain or deny in evaluating that evidence. In addition, the instruction cautions the jury that the failure to deny or explain evidence does not create a presumption of guilt and does not alone prove guilt. And, favorably to the defense, it makes clear that the prosecution has the burden of proof of each element of the crime beyond a reasonable doubt. (Lamer, supra, 110 Cal.App.4th at pp. 1472-1473.)
The jury was instructed pursuant to CALJIC No. 200 to disregard any instructions that did not apply; we presume it followed that instruction. (Saddler, supra, 24 Cal.3d at p. 684; Lamer, supra, 110 Cal.App.4th at p. 1472.) In addition, the evidence of appellant’s guilt was strong, based on Kelly’s testimony and the similarity of his prior uncharged sex offenses. Thus, we conclude it is not reasonably probable that a result more favorable to appellant would have been reached had the CALCRIM No. 361 instruction not been given.
III. Substantial Evidence Supports the Attempted Oral Copulation Conviction
Appellant contends his conviction of attempted oral copulation is unsupported by substantial evidence.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]” ’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Pursuant to Penal Code section 288a, “oral copulation ‘is the act of copulating the mouth of one person with the sexual organ... of another’ and is a felony when ‘the act is accomplished against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury....’ ” (People v. Raley (1992) 2 Cal.4th 870, 890.)
Appellant’s assertion that “[t]he limited questioning by the prosecutor coupled with [Kelly’s] answers established that the challenged conviction rested on speculation,” borders on frivolous. The record establishes that Kelly told both the police and the sexual assault rape trauma nurse that appellant had attempted to orally copulate her. She testified that his physical movements constituting the attempting oral copulation were the same movements he had previously made in the past when he was about to orally copulate her. Her testimony that she was physically trying to resist his attempt to orally copulate her established the force element of the attempted oral copulation offense. We conclude that ample evidence supports appellant’s attempted oral copulation conviction.
IV. The Court Properly Denied Appellant’s Romero Motion
Appellant next asserts the court abused its discretion in refusing to strike his four prior strike convictions under Penal Code section 1385 pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Penal Code section 1385 provides, in relevant part: “The judge or magistrate may,... in furtherance of justice, order an action to be dismissed.” (Pen. Code, § 1385, subd. (a).)
“As the Supreme Court explained in Romero, [Penal Code] section 1385 permits a trial court to strike an allegation of a prior felony conviction in cases brought under the Three Strikes law, in the interests of justice. [Citation.] In making its decision, the court must consider both the constitutional rights of the defendant and the interests of society represented by the People. [Citation.] ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation... the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213.)
A court’s refusal or failure to dismiss or strike a prior conviction allegation under Penal Code section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) The burden is on the party attacking the sentence to “ ‘ “clearly show” ’ ” that the court’s sentencing decision was irrational or arbitrary, and in the absence of such a showing the court’s exercise of its sentencing discretion is presumed correct. (Id. at pp. 376-377.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
We rely on the following clear, well reasoned explanation of the trial court to conclude the Romero motion was properly denied. The trial court stated: “The prior convictions occurred in 1992. Defendant was convicted of two counts of Penal Code section 261[, subdivision] (a)(2) and two counts of Penal Code section 289. The allegations involved two victims known to defendant. The defendant was sentenced to eight years in prison and was released on parole in 1997. The defendant remained on parole until the year 2000. In 1999, the defendant was arrested for the alleged rape of Adriana. Although acquitted, he was in custody until 2002. [¶] Thereafter, in June 2006, defendant was convicted of misdemeanor theft under Penal Code section 487[, subdivision] (a), involving an incident with his ex-wife. Prior to that conviction, a domestic violence restraining order was issued against the defendant. The defendant was granted probation for a period of three years. While on probation, he was arrested on June 16, 2007, for the current offense. [¶] The court has considered Mr. Carter’s past under the criterion set forth in California Rules of Court[, rules] 4.421 and 4.423. Based upon this history, the court finds that defendant has been incarcerated or on parole or probation for all but four of the past 17 years. The prior crimes and the present crimes involve acts of violence. The prior crimes were incurred in two separate occasions involving two victims, and defendant was sentenced to state prison for those offenses. [¶] Although defendant was relatively young when the first four offenses were committed, he has continued the same course of conduct. The defendant has served a prior prison term and was on probation when the current offenses occurred. The defendant has abused a position of trust with each of these victims. [¶] The court does find mitigating circumstances under California Rules of Court[, rule] 4.423, as follows: Mr. Carter has been successfully employed in professional, financial positions since his release from prison. He has sought to improve his professional standing in his community by associating with a black professional fraternity and has sought support and guidance from leaders in the community. Mr. Carter shares custody of his four-year-old son and pays child support. He is a homeowner. Mr. Carter provides for his mother who lost her home after hurricane Katrina. [¶] Under People v. Williams [(1998) 17 Cal.4th 148], the court has considered the nature and circumstances of the present felonies, and the prior serious felonies and the particulars of Mr. Carter’s background, character and prospects. On balance, the court cannot find that defendant is outside the spirit of the three-strikes law. And for these reasons, the court denies the motion to strike the prior convictions.”
V. Appellant’s Sentence Is Not Cruel and Unusual Punishment
Finally, appellant contends his 80-years-to-life prison sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)
Appellant never raised this argument in the trial court and therefore, he is barred from raising it on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In any case, the argument is unpersuasive.
The court sentenced appellant to 80 years to life in prison as follows: The court found the one-strike law applied to appellant’s rape conviction since appellant had previously been convicted of rape. It thus sentenced him on the rape count to 25 years to life and tripled that term under the three strikes law for a total of 75 years to life. On the attempted oral copulation count, the court sentenced appellant to a concurrent 25-year term. It imposed a consecutive five-year term (Pen. Code, § 667, subd. (a)) for the prior serious felony conviction for the rape of K.W., which was not a prior conviction considered by the court under the three strikes law.
Under the state constitutional standard, a sentence is cruel and unusual if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Under California law, we “consider the nature both of the offense and of the offender.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
The prohibition against cruel and unusual punishment under the federal constitution is applicable in noncapital cases only in exceedingly rare or extreme cases involving sentences that are grossly disproportionate to the offense, described as a “ ‘narrow proportionality principle.’ ” (Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing).)
In reviewing the proportionality of the punishment imposed, it is appropriate to give considerable weight to the fact that appellant is a recidivist offender, who has apparently not learned from his prior incarceration for offenses that are remarkably similar to those charged. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1511; People v. Stone (1999) 75 Cal.App.4th 707, 715.) Recidivism is also a legitimate factor in imposing increased punishment under the federal constitution. (See Ewing, supra, 538 U.S. at p. 25, 29.)
Appellant’s sole argument in support of his cruel and unusual punishment claim is that he is now 41 years old and cannot complete his 80 year to life sentence. He relies upon the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600-601, where the defendant was sentenced to a total of 111 years in prison. Justice Mosk’s concurrence stated, “A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution.” (Ibid.)
In People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd), the Third District noted that because no other justice on the Supreme Court joined in Justice Mosk’s concurring opinion, it has no precedential value. In addition, Byrd stated, “In any event, we respectfully disagree with Justice Mosk’s analysis. In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution (People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), or the federal Constitution. (Harmelin v. Michigan (1991) 501 U.S. 957 [sentence of life without possibility of parole not cruel and unusual for possession of 672 grams of cocaine].) [¶] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects society’s condemnation of defendant’s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.” (Byrd, supra, 89 Cal.App.4that p. 1383.)
We agree with the reasoning in Byrd, and thereforereject appellant’s claim of cruel and unusual punishment.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., BRUINIERS, J.
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Section 1101, subdivision (b), provides in relevant part: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act” when relevant to prove a fact other than the defendant’s criminal disposition, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.” Such relevance notwithstanding, evidence of prior conduct is inadmissible if its probative value is substantially outweighed by the probability of its prejudicial effect. (§ 352; People v. Ewoldt (1994) 7 Cal.4th 380, 393, 404.)
Section 1108, subdivision (a), provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”