Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF1095, David A. Thompson, Judge.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
Relmon Henry Davis appeals from his conviction of forcible oral copulation with a knife use enhancement, and assault with a knife. He is serving a prison term of 18 years to life. Davis’s sole claim of error concerns the admission of certain “propensity” evidence under Evidence Code section 1108, subdivision (a). (All further statutory references are to the Evidence Code.)
Davis argues the admission of evidence of his prior sexual offenses against his 17-year-old half sister caused him undue prejudice and violated his federal and state due process rights. Finding neither abuse of discretion nor constitutional violation, we affirm.
BACKGROUND
At the time of the events leading to his arrest, Davis had been staying with his former girlfriend, Jenny D., and their three-year-old son Jordan, for approximately one week. This brief cohabitation followed several years of little contact between Davis and Jenny D. The two had lived together previously for a few months from approximately November of 2003 through early 2004.
Late on the day in question, Jenny D. returned from work with Jordan in tow, and found Davis on the couch next to an empty bottle of vodka. Upset that he had done none of the chores she had requested, Jenny D. told Davis that their relationship was not working out and she wanted him to leave. An argument ensued.
Davis wanted to know where Jenny D. had been all day; he accused her of being with another man. When she said she had been at work, he replied she was lying. She went to her bedroom closet to change, with Jordan following. Davis came into the closet too and angrily demanded Jenny D. remove her pants and underwear so he could check and see if she had been “with a guy.” Fearing his mood, she complied. He touched her vagina and smelled his hand, then left the closet.
Jenny D. dressed and brought Jordan with her into the bathroom. Again, Davis followed, this time armed with a 10-inch kitchen knife. Davis renewed his questions about where Jenny D. had been and with whom. Standing about “a foot” away from her, Davis waved the knife around in the direction of her head. Jenny D. put up her arms to protect her face and Davis told her to put her hands down. She kept her hands up and Davis slashed her right hand with the knife.
Bleeding, she asked Davis to help her and he eventually got a towel to clean the blood from the bathroom floor. In a calm but angry tone, Davis told Jenny D. he was going to kill her. She testified, “He said he was supposed to kill me.... The voices were telling him to kill me.”
Davis left the bathroom and a few minutes later Jenny D. and Jordan found Davis in the living room, sitting on the couch. He was still holding the knife. Jordan went to play with his toys in an adjoining room. Crying and scared, Jenny D. sat next to Davis on the couch. She testified Davis told her “to do to him what I had been doing all day, and he had pulled his penis out.” Davis was waving the knife, passing it “back and forth between both hands.” Scared Davis might “hurt me again,” Jenny D. gave him oral sex. While she did so, Davis “dragged the tip of [the knife] on” her back. The forced oral sex lasted about 20 minutes.
In an effort to get Davis “to calm down and think that everything was okay[,]” Jenny D. lied to Davis and told him she wanted to be with him. He did calm down, and Jenny D. was able to convince him to allow her to go to her mother’s house, as she had arranged earlier to do. Davis insisted on driving.
Jenny D. persuaded Davis to wait in the car while she and Jordan went into the house. Knowing her mother was out running errands, Jenny D. locked herself and Jordan in the garage and called her mother to tell her what had happened and warn her not to come home. Then Jenny D. called the police.
Meanwhile, Jenny D.’s mother drove to the home of a neighbor, an off-duty police officer, and explained the situation. The officer, armed with a gun, took Davis by surprise and arrested him. Additional officers arrived within minutes.
About five months later, Jenny D. told an investigator with the district attorney’s office that during the three or four-month-period she lived with Davis in late 2003 and early 2004, Davis had physically and sexually abused her. She claimed Davis on multiple occasions beat her with a stick to force her to have anal and oral sex with him. She had never reported this abuse or confided this information to anyone previously.
At trial, Jenny D. testified about these uncharged prior acts of sexual abuse. She stated that Davis forced her to have anal and oral sex “over a dozen” times by hitting her with a stick.
Over Davis’s objection, and pursuant to section 1108, the prosecution introduced evidence of prior sexual assaults he committed against his half sister, Karolyn D. (They have the same mother, thus different last names.) Karolyn D. testified that in November of 2004, when she was 17 years old and living in Long Beach with her grandmother, she was kicked out of the house after an argument. Karolyn D. called Davis asking for a place to stay. Davis was living in Pasadena with his father and agreed to pick her up and bring her to his home. On the second night of her stay in Pasadena, Davis tried to kiss her. She was horrified, started crying, and asked to be taken back to her grandmother’s house.
Davis states Karolyn D. was 14 years old when these events occurred but she testified to having been 17 at the time.
Davis agreed to do so but instead drove Karolyn D. to a dead-end street in Pasadena where he forced her to orally copulate him and then forcibly engaged in anal and vaginal sex with her in the back seat of the car. Karolyn D. testified, “I was like crying and I said I didn’t want to,” but she complied with Davis’s demands because she feared that he would “beat me up.”
Afterwards, Davis said he would take Karolyn D. home but instead he drove to another secluded location and parked. He told her “he had to do it again....[¶]... [B]ecause it was too good[.]” Davis started touching her but was interrupted when police arrived. Karolyn D. was afraid to tell the police what had happened and instead simply asked the officers to give her a ride home. Because she did not explain why she wanted a ride with them, the officers declined her request. They called her older brother, who was at her grandmother’s Long Beach home, and told him that Karolyn D. would be brought home by Davis. Instead, Davis drove Karolyn D. back to his house in Pasadena.
Once there, Davis told the girl he wanted to finish having sex, but she ran into the bathroom and locked herself in until the next morning. When she left the bathroom in the morning, Davis drove her back to her grandmother’s house. Karolyn D. told her grandmother and older brother what had happened to her. The older brother called police and reported the crimes.
Davis eventually pleaded guilty to the reduced charge of incest and served a prison term.
DISCUSSION
Davis argues the trial court abused its discretion in admitting the evidence of his prior sexual offenses against his 17-year-old half sister, Karolyn D. He argues the evidence was substantially more prejudicial than probative, and thus should have been excluded under section 352. Moreover, Davis asserts that the admission of this highly charged evidence undermined his due process right to a fair trial under both the federal and state Constitutions. Neither contention has merit.
Though section 1108, subdivision (a) allows the prosecution to use evidence of prior sexual offenses to prove a defendant’s propensity to commit such offenses, or in other words, to prove circumstantially the defendant committed the charged sexual offense, an important check on that power is the trial court’s responsibility to weigh carefully the admissibility of the prior acts evidence under section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 917.) Davis argues that the trial court erred in performing that crucial weighing process.
Davis argues the inflammatory nature of the prior offenses––“multiple, forced, and aggravated” sexual attacks against an unwilling 17 year old who also happened to be his half-sister––made them unduly prejudicial. Davis contends the evidence of these prior acts is “of an emotional and highly charged nature sufficient to arouse the emotions of the jurors.” Further inflaming the jury against him, according to Davis, is the fact that “the jury may have learned that [he] had been convicted of incest,” and thereby “concluded that he escaped punishment for the multiple rape, sodomy, and oral copulation acts” committed against Karolyn D. Davis concludes that “[i]n circumstances such as these, a jury is swayed toward conviction seeking to punish a defendant for crimes for which he may have escaped punishment.”
As for the other key factor in the court’s section 352 analysis, Davis attempts to downplay the probative value of Karolyn D.’s testimony by asserting that it was offered to prove intent, and was unnecessary for that purpose. Davis argues that if the jury believed Jenny D.’s testimony about the forced oral copulation, then his intent “could not be reasonably disputed.” The only basis for this argument concerning intent is a single, unartful sentence in the prosecution’s written motion to introduce evidence pursuant to section 1108.
Near the end of the written motion, after several pages of argument explaining the admissibility under section 1108 and People v. Falsetta, supra, 21 Cal.4th 903, of prior sex offenses to prove a “defendant’s disposition to commit current sex crimes,” the following sentence appears: “Keeping in mind that evidence under section 1108 is not solely admissible on the issue of propensity, but also on issues of absence of mistake, accident, intent, etc., this evidence is also highly relevant with respect to the credibility of the witnesses.”
While this meandering sentence may have clouded briefly the focus of the written motion, the prosecution’s purpose in seeking to introduce Davis’s prior sexual offenses snapped back into focus five sentences later. The concluding paragraph states: “[D]efendant is a sexual predator. The jury needs to be made aware of Defendant’s possible disposition to commit sex crimes.” Moreover, during argument on the motion, the court specifically recognized the prosecution was offering the evidence “to show a propensity.” Thus Davis waves a red herring in arguing his prior sexual offenses lack probity on the issue of intent.
Like most “prior acts” evidence, Karolyn D.’s testimony about Davis’s sexual attacks against her are compelling evidence of his propensity to commit such acts. (See People v. Falsetta, supra, 21 Cal.4th at p. 915 [“‘Such evidence “is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much”’”].) The evidence was thus highly probative. We note Davis makes an additional attack on the probity of this evidence, arguing his attacks on Karolyn D. and Jenny D. are dissimilar because the prior victim was “a child” and the latter an adult woman. While this distinction is apt, the argument ignores other powerful similarities between the acts such as the fact both victims were intimate associates of Davis’s, and thus vulnerable because they trusted him. Moreover, the prior acts were forcible sex offenses, just as the charged offense was.
The trial court’s decision to admit the prior acts evidence after finding it to be more probative than prejudicial is reviewed under the deferential abuse of discretion standard. (People v. Story (2009) 45 Cal.4th 1282, 1295.) While the offenses against Karolyn D. were egregious and inflammatory, the charged offense was likewise horrifying as it involved Davis’s terrorizing of Jenny D. with a knife and death threats, capped by forced oral copulation, all in the presence of their three-year-old child. Thus, given the nature of the charged offense, the court acted within its discretion in finding the prior acts were not unduly prejudicial. Moreover, the probative value of the prior acts––both as proof of Davis’s propensity to commit a forcible sexual offense, and to buttress the credibility of the complaining witness, Jenny D.––is strong. We find the court did not abuse its discretion in admitting Karolyn D.’s testimony.
Finally, we turn to Davis’s contention that the admission of this evidence violated his federal and state due process rights to a fair trial. In People v. Falsetta, supra, 21 Cal.4th 903, the California Supreme Court specifically rejected a due process challenge to section 1108. The high court held that “the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from defendant’s due process challenge.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The decision noted that the federal courts had likewise “upheld... against constitutional attack” the federal counterpart to section 1108, Federal rule 413. (People v. Falsetta, supra, 21 Cal.4th at p. 921.) The Falsetta decision thus forecloses Davis’s due process challenge.
DISPOSITION
The judgment is affirmed.