Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR145383.
SIMONS, J.
Defendant Charles David Gordon (appellant) appeals his conviction by court trial of two counts of rape (Pen. Code, § 261, subd. (a)(2)) (counts 1 & 3); oral copulation with a minor (§ 288a, subd. (b)(1)) (count 2); sodomy by force (§ 286, subd. (c)) (count 4); and infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 5). The court also found true the multiple victim allegation (§ 667.61, subd. (b)) as to counts 1, 3, and 4. He contends the evidence is insufficient to support his conviction on count 5, the court erroneously admitted evidence of his prior sexual misconduct and domestic violence and his sentence constitutes cruel and/or unusual punishment. We affirm.
All undesignated section references are to the Penal Code.
He was sentenced to consecutive 15 years to life terms on counts 1, 3, and 4 (§§ 667.61, subds. (b) & (i), 667.6, subd. (d)), plus a consecutive four-year upper term on count 5, and a consecutive eight-month term (one-third the midterm) on count 2.
BACKGROUND
Counts 3, 4, and 5 Against Erica Doe
Victim Erica Doe (Erica) met and began dating appellant in October 2002, when she was 16 years old. Their relationship ended in February 2008. They lived together for most of the five years they were together. In June 2003, after living with Erica’s parents in Oregon, they moved to American Canyon where they lived with appellant’s parents. Appellant had “control of everything” in the relationship, even insisting that Erica dress him every day. There were instances of violence in the beginning of their relationship, and the violence worsened over time. Erica was afraid of appellant. On numerous occasions, he pushed, slapped and punched her, and threatened to “take [her] out in the woods and make [her] disappear.” He also threatened her with a.22-caliber rifle. As a result of the threats, she felt her life was in danger. He would yell at her and call her “bitch, ” “whore, ” “cunt, ” “stupid, ” and “worthless piece of crap.” He gave her a black eye, inflicted bruises, bit her leg, and burned her with a cigarette. Appellant would also be sexually violent toward Erica, forcing sex on her after they fought.
In January 2008, they had a “really bad fight.” At about 10:00 p.m., Erica was home with her friend Marlene when appellant arrived and started drinking whiskey. He appeared to be angry. Erica wanted to leave with Marlene but thought this would make the situation worse. When Marlene left, appellant said he was angry because Erica had been “unfaithful” to him that day. He began punching her in the ribs and legs, slapped her, pulled her hair, ripped out some of her hair extension braids, called her a whore and told her to go into the bedroom. Despite her telling him to stop, he pulled her clothes off and raped her. After he ejaculated, they both lit up cigarettes. He then told her he was going to burn her with his cigarette. After his first attempt, she moved away. On his second attempt, he burned her thigh, causing a scarring injury.
Five minutes later, appellant told Erica he was going to have anal sex with her to teach her a lesson. Although she begged him not to, he said he was going to do it “whether [she] wanted it or not.” He then penetrated her anus with his penis and she loudly screamed for him to stop, hoping someone would come to her aid. He held on to her so she could not pull away, stopping only after he ejaculated. He then told her to “get [her] disgusting ass in the shower.” She felt “completely disconnected and scared and just sick.” The next day appellant apologized to her. She thought that calling the police would only make the situation worse.
After this incident, Erica confided in Marlene, and appellant’s mother, Connie Gordon, found out about the incident. When Connie Gordon asked Erica if it was true, Erica revealed the scar on her leg. Connie Gordon told Erica to pack her belongings and drove her to meet Erica’s mother, who took Erica to Oregon.
On December 17, 2008, Erica participated in a pretext phone call to appellant that was recorded by the Medford, Oregon Police Department. Erica told appellant she was feeling anxious after having been “beaten and raped and burned.” Appellant told her not to “go there this time, ” said he had apologized and tried to make amends and would not call her any more. He also said: “I know what I fucking did to you.... You think it makes me happy?... I was fucking crazy. I was fucking out of my mind, in a place in my life where I was absolutely fucking out of my mind, ... there’s nothing I can fucking do about it now. [¶]... [¶] It’s like yes, you were victimized and... you were beaten and you were fucking put through hell... yes, you were. I agree with you a hundred percent. It was wrong and it was fucking horrible, okay?” Appellant asked Erica to call Jamie (his current girlfriend) and “just tell her I didn’t fucking rape you.” Erica responded, “But you did.”
A CD and transcript of the recording were admitted into evidence.
Counts 1 and 2 Against Kelsey Doe
Victim Kelsey Doe, born in 1992, is appellant’s niece. When Kelsey was four or five years old, she visited her grandparents in Oregon and she and appellant were together in a sauna. Appellant locked her in the sauna for about 30 minutes and said he would not let her out until she “gave him a blow job.” She was frightened but complied, putting her mouth on his penis. Subsequently, her grandparents came and appellant ran out of the sauna. Kelsey first told her grandmother about the incident when she was about 15 years old. The sauna incident did not really affect Kelsey and appellant’s relationship; she still considered him one of her best friends and trusted him. As a teenager, Kelsey liked spending time with appellant because he allowed her to drink alcohol and smoke marijuana.
On November 15, 2008, Kelsey was living with her grandparents in Fairfield and appellant was visiting from Oregon. Kelsey contacted appellant saying she wanted to see him. He asked her to “hang out” with him later that night and asked if she had any friends that he could “hook [ ] up with, ” which Kelsey understood to mean to have sex with. Appellant said he would get alcohol so they could drink when they arrived at the Napa apartment complex where he was staying. The apartment complex was managed by appellant’s grandfather.
Prior to going to visit appellant, Kelsey was with two of her friends and drank a bottle of malt liquor. She got a ride to appellant’s apartment complex and met him outside. She was “pretty drunk, ” and had trouble walking straight. He took her to a small room off the manager’s office. He offered her whiskey and she drank several shots. She then felt drunk; she was dizzy, could not think straight, had trouble walking and vomited. Kelsey gave appellant her cell phone so he could call her boyfriend, Dylan, to pick her up. Appellant appeared to make the call and then told Kelsey Dylan could not pick her up. Appellant said he would get her home.
Kelsey kissed appellant on the cheek because he was one of her best friends. He then began “French kissing” her and said he had had a “crush” on her for some time. Kelsey felt “dirty and disgusting.” Appellant then sat down, told her to come next to him, pulled out his penis, and put it next to her face, indicating he wanted a “blow job.” Kelsey complied and put his penis in her mouth. Although she did not want to engage in oral sex, she felt like she had no “other option, ” and she was not thinking clearly because she was drunk. Throughout the evening she would black out and regain consciousness.
Appellant then kissed Kelsey again and pushed her onto the bed. He said he wanted to have sex and directed her to remove her pants. She said she did not want to and she was a virgin. Appellant said, “ ‘No, you’re not, ’ ” and removed her shorts despite her telling him not to. He then got on top of her and put his penis inside her vagina. It hurt, and when she yelled for him to stop, he said he was “almost done.” Although she screamed for help, he continued to penetrate her. The rape lasted approximately five minutes. During it, appellant seemed very angry and irritable, and Kelsey was afraid he might hurt her.
When appellant got off of Kelsey she felt “traumatized, ” “in shock, ” and “betrayed.” She accused him of raping her. He grabbed a cell phone, called her grandparents and told them to pick her up. While he was talking to them, Kelsey was screaming into the phone that appellant had raped her. He then told her to stop crying, get dressed and not tell anyone about what had happened. He said if she told her grandparents (his parents) or the police, he would get in trouble. When she tried to leave, appellant stood in front of the door and pushed her, causing her to fall.
When Kelsey’s grandparents arrived, she told them appellant had raped her. They did not believe her. They offered to take her to the hospital, but she asked them to take her to her boyfriend’s house. Although she wanted to go to the hospital, she did not trust her grandparents or believe they would take her there. At some point she saw a police car and opened the car door in an attempt to get the officer’s attention. Her grandmother tried to restrain her and covered her mouth when the officer approached their car. Kelsey told the officer what had happened and he took her to the hospital.
At about 2:40 a.m. on November 16, 2008, Napa Police Officer Russell Davis saw Kelsey’s grandparents’ SUV drive erratically and pull over. When Davis approached the SUV, Kelsey’s grandfather told Davis Kelsey was intoxicated and out of control, but did not mention her having been possibly raped. Kelsey was crying, “hysterical, ” yelling that no one believed her, and her grandmother was trying to keep her from talking. Kelsey told Davis she had been raped by her uncle and was in a lot of pain. She appeared to be intoxicated. Davis administered a PAS test at about 2:00 a.m., which revealed Kelsey’s blood alcohol level to be.143. He transported her to the hospital. At the hospital Kelsey described the sexual assault to Davis.
At the hospital, sexual assault nurse examiner Vickie Whitson performed a sexual assault examination on Kelsey. Kelsey said she had vaginal pain and that appellant had grabbed her arm, pulled her onto the bed and used his body weight to hold her down. She said he put both hands around her neck so tightly she could not speak. Kelsey said she was forced to orally copulate appellant and he penetrated her vagina with his penis. The examination revealed two abrasions of Kelsey’s hymen, consistent with blunt force trauma. Whitson opined that sexual abuse was highly suspected. Vaginal swabs from Kelsey tested positive for DNA matching appellant’s DNA type.
Prior Incidents of Domestic Violence and Sexual Abuse
Jaimie M. met and began dating appellant in June 2008. On September 22, 2008, she went to visit him where he was living in Oregon. She ended up staying, and lived with appellant and his three roommates for about two months. On November 2, they argued because appellant took her paychecks and would not give them back. They also argued because he had flirted with a woman whose boyfriend was supposedly moving in with them. Jaimie told appellant she wanted to move back to Napa and he responded by covering her mouth and saying, “What makes you think you’re going to get the chance to?” She perceived this as a threat and was afraid. She started screaming, but his hand covered her mouth and no one heard her. They were on the bed and he had his legs over her so she could not move. After about three or four minutes he let her go and said, “ ‘Don’t tell anybody.’ ” She went into the dining room and was talking to roommate Tim Grabner, when appellant called her names and angrily said, “ ‘Nobody will know if you’re gone.’ ” Jaimie feared for her life. She grabbed a knife but Grabner told her, “Don’t do that.” Appellant then picked her up by the throat, threw her to the ground, choked her with his arm and said, “ ‘You’re not worth it.’ ” Grabner told appellant to stop and pulled him off Jaimie. Jaimie ran outside and another roommate called the police.
Grabner testified he befriended appellant when they were in middle school. In September 2008, they resumed their friendship and began living together when appellant moved to Oregon. Grabner said appellant controlled appellant’s relationship with Jaimie. On one occasion, Grabner heard Jaimie’s muffled scream from inside appellant and Jaimie’s bedroom; there was no response when Grabner and his fiancée knocked on the door. Grabner next saw appellant and Jaimie arguing in the kitchen and appellant would not let her move away from the refrigerator. Jaimie picked up a knife and appellant grabbed it. Appellant then slammed Jaimie against the wall, held her by her throat, threw her over his shoulder and they both fell to the floor. Appellant then began choking her while saying, “ ‘The bitch is not worth it, and I’m just going to fucking kill her.’ ” Grabner pulled appellant off Jaimie and she ran outside. Appellant later told Grabner he was “not necessarily too concerned about what he had done” to Jaimie. About a month later, appellant joked about the incident with Jaimie after learning that Jaimie’s then-boyfriend was in jail, saying, “I don’t understand why she dumped me... for a fat rapist when she could have at least had a good looking one.’ ”
Appellant also told Grabner that Erica was a “slut and whore” and he had “bent [Erica] over, raped and sodomized her, ” and burned her with a cigarette. He was confident that Erica would never testify against him. Appellant told Grabner that if his brother found out about the sexual incident with Kelsey when appellant and Kelsey were much younger, appellant’s brother would kill him.
On cross-examination, Grabner said that in October 2008 he was convicted of burglary in Oregon and appellant’s grand jury testimony contributed to his conviction. Grabner hoped that by cooperating with the prosecution his felony would be reduced to a misdemeanor.
Krystal W. dated appellant for about six weeks beginning in mid-February 2009. A couple of weeks later she moved in with appellant and his parents. She broke up with him at the end of March because there had been an increasing amount of physical intimidation. Sometimes when playing with her, despite her telling him to let go, appellant would grab and hold her in a way that she “would have difficulty breathing” and she “would be crying.” On one occasion while Krystal showed appellant her bedroom at her parents’ house, appellant removed his clothes, pushed her onto the bed and began removing her clothes. Although she said she did not want to have sex, he put on a condom, restrained her wrists and vigorously and forcefully started having sexual intercourse with her against her will. He then tried to convince her he had not sexually assaulted her. Thereafter, Krystal was afraid of appellant and “too afraid to leave him.”
Krystal described appellant’s level of anger as “unhinged”; he would escalate a small issue into something much larger. On one occasion, appellant told Krystal’s sister’s boyfriend that if Krystal’s sister did not want to engage in certain sexual acts, “you should just rape her.”
On March 22, 2009, Krystal and appellant argued while in bed. He told her it would be very dangerous for her to stay in the bedroom since he had “been pushed to this wild and violent edge before.” At some point, he left the bedroom. When he returned he said he had done some reprehensible actions for which he could not forgive himself. Krystal was afraid of appellant because he was yelling and throwing things. On March 24, she left appellant and ended the relationship. She left Napa County because she was afraid appellant would attempt to find her.
The Defense
Charles Gilman Gordon (Gordon), appellant’s father and Kelsey’s grandfather and guardian, testified that on November 16, 2008, when he picked up Kelsey at the apartment complex, she appeared a “little agitated, ” said she had been assaulted, and repeatedly asked to be taken to her boyfriend’s home. She appeared to have been drinking. Gordon did not recall whether she said she was raped.
Gordon received letters written by appellant from jail. One letter said that “ ‘people need[ed] to lie on the stand.’ ” Another letter said, “ ‘The only way I’m going to beat Erica in court is if everyone knows about Erica and my S and M in one way or another. Not everyone can have the same story, but everyone needs to be in the same ballpark.’ ” Gordon said he made no effort to fabricate evidence.
Connie Gordon testified that when she and Gordon went to pick Kelsey up at the apartment complex Kelsey was intoxicated. After Connie Gordon told Kelsey she would not take her to her boyfriend’s house, Kelsey said she was sexually assaulted and raped. Connie Gordon denied holding her hand over Kelsey’s mouth. She also said Kelsey had a very bad reputation in the family for truthfulness in the six months leading to November 15, 2008. Connie Gordon testified that a psychologist had said that Kelsey lies to get attention. She also said she did not believe appellant raped and burned Erica.
Appellant testified he and Erica engaged in anal and vaginal penetration. They both used methamphetamine and alcohol. They engaged in “rough sex” and sadomasochistic sex.
Appellant described the events regarding the January 2008 charged incident involving Erica. That morning, before he went to work, he and Erica had “passionate” sex without “the roughness and fantasies and the dirty talk.” When he returned home that night, the apartment smelled like methamphetamine and it appeared that Erica had had sex with someone else that day. Appellant felt “disillusioned” because Erica was apparently not sexually satisfied by him. After Marlene left, he and Erica entered the bedroom and had sex. Appellant denied slapping or hitting Erica before entering the bedroom. They had rough sex but when he attempted to perform anal sex, Erica “wasn’t ready for it, ” and began angrily yelling at him. Appellant got angry, lit a cigarette and as they argued, put the cigarette out on her thigh. He denied ever calling her a whore. Erica began to cry and appellant immediately tried to put ice on her cigarette burn. Their sexual relationship ended, but they continued living together until February 14 when Erica moved away.
Appellant denied choking Jaimie when they lived together in Oregon. He said they argued and she attacked him with a piece of metal and then a knife. In self defense, he grabbed her hand and she dropped the knife. Appellant denied telling Grabner that he raped or sodomized Erica. He did tell Grabner he had burned Erica with a cigarette and exposed his penis to a four-year-old when he was 11 years old. Appellant said he had consensual sex with Krystal and never raped her, threatened her, or forced her to have sex.
Appellant testified that on November 15, 2008, he and Kelsey made plans to get together that evening. She showed up at the apartment complex, sat on his lap and persistently asked him to give her alcohol. He refused because she had been drinking malt liquor and he did not want her to vomit after mixing malt liquor and other alcohol. They then began kissing and she offered to perform oral sex if he gave her alcohol. He agreed. They then resumed kissing and had consensual sex. She then asked him for the alcohol and he complied and went for a walk. When he returned to the apartment they both drank. Eventually, he took the bottle away from her and she went to the bathroom and vomited and asked him to call her boyfriend Dylan. Appellant called him, but Dylan did not have a car. Appellant protested that it was too late when Kelsey said she would walk to Dylan’s house. When he prevented her from leaving and threatened to call his parents (her grandparents), Kelsey said she would tell them he raped her. Appellant then called her grandparents, who came and got Kelsey.
Appellant admitted repeatedly lying to Detective Elia for “tactical reasons.” He also admitted asking family and friends to assist him in fabricating a defense.
DISCUSSION
I. Substantial Evidence Supports Appellant’s Conviction on Count 5
Appellant contends his count 5 conviction of corporal injury on a cohabitant (§ 273.5, subd. (a)) is unsupported by substantial evidence. In particular, he argues there is not substantial evidence that he caused a “traumatic condition” under section 273.5, subdivision (c).
We review challenges to the sufficiency of evidence to support a conviction under the familiar substantial evidence standard of review. Under that standard we examine the entire record in the light most favorable to the trial court decision and draw all reasonable inferences in support of that decision. We do not evaluate the credibility of witnesses, nor do we reweigh the evidence. Instead, our task is to determine if there is enough substantial evidence from which a fact finder could find the elements of the crime to have been proved beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Towler (1982) 31 Cal.3d 105, 117-119.)
Section 273.5, subdivision (a) provides in part: “Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony....” Subdivision (c) provides: “As used in this section, ‘traumatic condition’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serous nature, caused by a physical force.”
Erica testified that during the January 2008 incident, appellant punched her in the ribs and legs, slapped her, pulled her hair and ripped out some of her braids. Thereafter, he burned her thigh with a lit cigarette, causing a scarring injury. In reliance solely on the exhibit photos of Erica’s thigh injury, appellant argues the burn “was merely a reddish pink injury that had loose skin around the edge and was not exceptional by any circumstances. Nor did it require medical treatment (fn. omitted).” He argues this did not establish a traumatic condition under section 273.5.
“A traumatic condition is a condition of the body such as a wound or internal or external injury, whether minor or serious, caused by physical force. [Citations.]” (People v. Abrego (1993) 21 Cal.App.4th 133, 137 (Abrego).) A defendant who inflicts only “ ‘minor’ ” injury violates section 273.5. (People v. Silva (1994) 27 Cal.App.4th 1160, 1166.) Bruising constitutes a traumatic condition within the meaning of the statutory definition of corporal injury. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) Corporal injury on a cohabitant can be committed by a course of conduct rather than a single act. (People v. Thompson (1984) 160 Cal.App.3d 220, 224-225.)
Erica suffered a wound, resulting in scarring to her thigh, as a result of appellant’s intentional act of burning her with a cigarette. In addition, as part of the same course of conduct, he slapped her, punched her, and pulled her hair, ripping out her hair extension braids and some hair. The fact that Erica did not seek medical treatment for her injuries does not negate the evidence that she suffered injuries, albeit minor injuries. The Legislature has expressed an intent to criminalize even minor injuries by including them within the definition of “traumatic condition.” (§ 273.5, subd. (c).) In this respect, the present case is easily distinguished from Abrego, relied on by appellant. In Abrego, the victim testified she was not injured or bruised when the defendant slapped her; she felt no pain from the blows and did not seek medical treatment. She did tell an investigating officer that she felt pain and tenderness where she had been struck, although the officer did not observe any injuries. The Abrego court found this evidence insufficient to establish that the victim suffered even the minor injury required under section 273.5. (Abrego, supra, 21 Cal.App.4th at p. 138.) Substantial evidence supports appellant’s conviction on count 5.
II. The Trial Court Properly Admitted Evidence of Appellant’s Prior Sex Offenses and Domestic Violence
Next, appellant contends the court erred in admitting evidence of his prior sex offenses and domestic violence under Evidence Code sections 1108, 1109, and 1101, subdivision (b). He argues the evidence was more prejudicial than probative under Evidence Code section 352, and the erroneous admission of evidence violated his rights to due process and a fair trial.
Evidence Code 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.”
In its entirety, section 1109 provides:
Evidence Code 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.”
Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
The trial court granted the prosecution’s in limine motion to admit, pursuant to Evidence Code section 1108, the prior sexual misconduct involving Kelsey (when she was a young child) and the rape of Krystal. Pursuant to Evidence Code section 1109, the court also admitted the prior acts of domestic violence against Jaimie and Krystal. The court also ruled the evidence admissible under section 1101, subdivision (b) and concluded the probative value of the evidence was not outweighed by its prejudicial effect under Evidence Code section 352.
A. Evidence Code sections 1108 and 1109, and Appellant’s Due Process Rights
Appellant contends that admission of the challenged evidence under Evidence Code sections 1108 and 1109 violated his rights to federal due process. He acknowledges in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our Supreme Court rejected a due process challenge to the constitutionality of Evidence Code section 1108, and that a similar challenge to the constitutionality of Evidence Code section 1109 was rejected by the Court of Appeal in People v. Hoover (2000) 77 Cal.App.4th 1020, 1028-1029. He asserts those courts were “wrong” under the federal constitution because the use of propensity evidence violates due process.
Falsetta held that Evidence Code section 1108 does not automatically violate a defendant’s due process rights because the trial court’s discretion to exclude propensity evidence under Evidence Code section 352 prevents an unfair trial. (Falsetta, supra, 21 Cal.4th at pp. 917-918.) Recently, in People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289, the Supreme Court stated, “We decline defendant’s invitation to reconsider our decision in Falsetta, supra, 21 Cal.4th 903, and to hold that the admission of evidence under Evidence Code section 1108 to establish a defendant’s propensity to commit a sexual offense violates his or her due process rights.” As appellant acknowledges, we are bound by the Supreme Court’s opinions in Falsetta and Lewis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Evidence Code section 1109 is virtually identical to Evidence Code section 1108, except that section 1109 addresses prior acts of domestic violence and section 1108 addresses prior sexual offenses. Although our Supreme Court has not addressed the issue, numerous courts of appeal, including our own, have consistently applied the reasoning in Falsetta to reject federal and state due process challenges to the admission of propensity evidence under section 1109. (See People v. Williams (2008) 159 Cal.App.4th 141, 147; People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704; People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover, supra, 77 Cal.App.4th at p. 1027.) We need not revisit this issue again.
B. Evidence Code sections 1108 and 1109, and Appellant’s Equal Protection Rights
Appellant also contends that admission of the challenged evidence under Evidence Code sections 1108 and 1109 violated his rights to federal equal protection. He argues that both sections single out a particular class of offenders for special treatment under the Evidence Code by sanctioning the admission of evidence that has traditionally been excluded as unreliable and prejudicial.
This contention has been rejected by the Supreme Court in dicta in Falsetta and by the Courts of Appeal. (Falsetta, supra, 21 Cal.4th at p. 918; People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 (Fitch).) Although the Supreme Court has not addressed whether Evidence Code section 1109 violates equal protection rights, similar challenges have been rejected by the Courts of Appeal in People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 (Jennings) and Price, supra, 120 Cal.App.4th 224. Applying the rationale from Fitch and Falsetta, Jennings stated: “On its face, [Evidence Code] section 1109 treats all defendants charged with domestic violence equally; the only distinction it makes is between such domestic violence defendants and defendants accused of other crimes. Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same.” (Jennings, at p. 1311.)
We see no reason to further address these issues, which defendant raises primarily to preserve his right to federal court review.
C. Evidence Code Section 352
Appellant contends the court abused its discretion under Evidence Code section 352 in admitting the evidence of his prior acts of sexual misconduct and domestic violence. He argues the court failed to conduct any Evidence Code section 352 analysis or cite to that provision. He conclusorily asserts that the challenged evidence “could have no effect other than to improperly and unduly prejudice” the court.
Contrary to appellant’s assertion, at the in limine hearing, the court did expressly articulate a lengthy Evidence Code section 352 analysis. It then concluded, “So I don’t see any 352 basis to exclude [the challenged evidence] at all, although it is the most dramatic uncharged event admittedly.” Thereafter, defense counsel sought leave to renew his Evidence Code section 352 objection at trial. In response, the court stated, “And you certainly can. And I don’t mean to say that I’ve made a final decision on any of these things. They’re in limine motions. They’re tentative. They stick unless I change them, and the burden is on you folks to raise the issues again if you think I need to know something different about those rulings.”
For purposes of Evidence Code section 352, the term “ ‘prejudice’ ” applies to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) A trial court’s exercise of discretion under Evidence Code section 352 will not be overturned on appeal absent a manifest abuse of that discretion. (Jennings, supra, 81 Cal.App.4th at p. 1314.)
Here, the court found that the prior domestic violence and sexual misconduct evidence was “no more dramatic, and sometimes much less dramatic” than the charged offenses. It also found that the prior acts evidence was not remote in time, would not involve an undue consumption of time at trial, and would not confuse the issues. The court noted that the prior sexual assault of Kelsey when she was five years old “tends to have a [ ] dramatic effect on people, ” but concluded its probative value was not outweighed by its prejudicial effect. The court reasoned that the prior event involving Kelsey was “inextricably intertwined” with the charged offenses committed against her because they both involved the nature of her relationship with appellant.
Appellant fails to address the court’s Evidence Code section 352 findings in his opening brief. For the first time in his reply brief, appellant argues that more than ten years elapsed between the charged and uncharged offenses, rendering the evidence remote. He also argues the prior sex and domestic violence evidence was “extremely” inflammatory and was prejudicial because it “featured forcible conduct by him and in one instance involved a child.” Generally, points raised for the first time in a reply brief will not be considered because such consideration would deprive the respondent of an opportunity to counter the argument or would require the effort and delay of additional briefing by permission. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 9:78.2, pp. 9-25 to 9-26, and cases cited therein.)
Notwithstanding appellant’s waiver of the Evidence Code section 352 issue, no abuse of discretion is established. As to the alleged remoteness of the prior incident involving Kelsey, the passage of a substantial length of time does not automatically render the prior incident inadmissible, and no specific time limits have been established in determining whether a prior sex offense is too remote. (People v. Branch (2001) 91 Cal.App.4th 274, 284 [30-year gap not too remote]; People v. Waples, supra, 79 Cal.App.4th at p. 1395 [20-year gap not too remote]; People v. Campbell (1994) 23 Cal.App.4th 1488, 1497, fn. 14 [10-year-old conviction not too remote in time to be admissible].) Pursuant to Campbell, the court here could reasonably conclude that the 10-year gap between the prior offense against Kelsey and the charged offense against her was not remote. Contrary to appellant’s assertion that the uncharged and charged offenses regarding Kelsey were not similar, both incidents involved appellant’s taking advantage of their familial relationship, which was ongoing.
We reject appellant’s contention that the prior sex abuse and domestic violence evidence was “extremely inflammatory” and therefore prejudicial. Here, the trial court served as the factfinder. In that context, we are entitled to presume that the trial court, a professional jurist, was capable of weighing the admissible evidence, without being prejudiced by the more serious prior act evidence. (See People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408.) This is particularly true with regard to the evidence of the prior sexual abuse evidence of then five-year-old Kelsey. In addition, appellant’s prior acts against Jaimie and Krystal were not more violent than the charged acts against Erica.
We conclude the trial court sufficiently analyzed the relevant factors under Evidence Code section 352 and acted within its discretion in admitting evidence of the prior sex offenses and domestic violence.
In light of our determination that the trial court properly admitted the prior sexual misconduct and domestic violence evidence under Evidence Code sections 1108 and 1109, we need not address appellant’s assertion that the evidence was improperly admitted under Evidence Code section 1101, subdivision (b). Appellant does not argue that despite the admissibility of the evidence under Evidence Code sections 1108 and 1109, its erroneous admission under Evidence Code section 1101, subdivision (b) prejudiced him.
III. Appellant’s Sentence Was Neither Cruel Nor Unusual Punishment
As we noted previously, appellant was sentenced to 49 years eight months to life in state prison. The court imposed consecutive 15 years to life terms on counts 1, 3, and 4, plus a consecutive four-year term on count 5 and a consecutive eight-month term on count 2. He argues his sentence constitutes cruel and/or unusual punishment under the state and federal Constitutions. Appellant has waived the argument by failing to raise it in the trial court. (See People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) Waiver notwithstanding, the argument lacks merit.
A. The State Standard
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. (Fn. omitted.)” (In re Lynch (1972) 8 Cal.3d 410, 424.) “ ‘ “A tripartite test has been established to determine whether a penalty offends the prohibition against cruel... [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” [Citation.]’ [Citations.]” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389 (Rhodes).) “ ‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citations.]” (Rhodes, at p. 1390.)
Appellant contends his sentence in this case pursuant to section 667.61, the “One Strike” law, constitutes cruel and unusual punishment. In particular, he argues section 667.61 is unconstitutional facially and as applied to him.
Appellant acknowledges that facial challenges to the One Strike law have been rejected (see People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201 (Alvarado); People v. Estrada (1997) 57 Cal.App.4th 1270, 1280-1282 (Estrada); People v. Crooks (1997) 55 Cal.App.4th 797, 803-808), and argues those cases were wrongly decided. He asserts that section 667.61, subdivision (b), which provides for a mandatory consecutive 15-year term when section 667.61, subdivision (a) is inapplicable and one of the enumerated circumstances in section 667.61, subdivision (e) applies, is unconstitutional because it “does not recognize significant gradations of culpability depending on the severity of the current offense” and fails to take into consideration mitigating circumstances.
It is the function of the Legislature to define crimes and proscribe punishment; the judiciary may not interfere in this process unless the statutory penalties are so severe, relative to the crime, as to constitute cruel and unusual punishment. (People v. Dillon (1983) 34 Cal.3d 441, 477-478.) As noted in Estrada, punishment under the One Strike law is “precisely tailored to fit crimes bearing certain clearly defined characteristics.” (Estrada, supra, 57 Cal.App.4th at p. 1280.) That section 667.61, subdivision (b) provides for a 15 years to life term, while section 667.61, subdivision (a) provides for a 25 years to life term, undercuts appellant’s assertion that the One Strike law does not recognize gradations in culpability depending on the severity of the offense.
Appellant’s argument that his sentence under the One Strike law exceeds the punishments imposed for the same offenses in all but two other jurisdictions was addressed in Alvarado. “[T]hat some other jurisdictions allow for the same or even harsher punishment (Louisiana and Washington) indicates that in the abstract, the One Strike term imposed here is not irrational or obviously excessive punishment....” (Alvarado, supra, 87 Cal.App.4th at p. 200; accord, Estrada, supra, 57 Cal.App.4th at p. 1282.)
Appellant also argues the One-Strike sentencing law is unconstitutional as applied to him. Conceding that his offenses were serious and reprehensible, he argues that his sentence was far greater than that imposed for first degree murder or on a defendant convicted of continuous sexual molestation of a child under section 288.5. However, the penalty for a single offense cannot properly be compared with the penalty for multiple offenses or multiple offenses against multiple victims. (See Estrada, supra, 57 Cal.App.4th at p. 1282.) Moreover, the facts of this case support the penalty imposed. As noted in the probation department’s presentence report, appellant’s offenses involved great violence, great bodily harm, and the threat of bodily harm, and they disclosed a high degree of cruelty, viciousness, and callousness. While verbally degrading Erica, he forcibly raped her, then intentionally burned her with a cigarette and forcibly sodomized her despite her pleas for him to stop. In addition, appellant abused his position of trust by forcibly raping his 16-year-old niece, Kelsey, and forcing her to engage in oral copulation. Kelsey was particularly vulnerable because she was intoxicated by alcohol supplied by appellant. In addition, appellant failed to express remorse for his victims; instead, he expressed anger toward them for the lengthy prison sentence he faced.
Based on the record before us, we conclude the sentence imposed on appellant is neither cruel nor unusual punishment under the California Constitution.
B. The Federal Standard
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).) The issue is whether the sentence is “ ‘grossly disproportionate’ ” to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin).) The United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists against claims of cruel and unusual punishment. (See Lockyer v. Andrade (2003) 538 U.S. 63 [two 25 years to life terms for two separate thefts of videotapes worth approximately $150]; Ewing, at pp. 11, 30 [25 years to life term for theft of three golf clubs each worth $399]; Harmelin, at pp. 960, 965, 994-995 [life without possibility of parole for possession of a large quantity of cocaine].)
Appellant argues that since he is 25 years old, his unavailability of parole for more than 49 years makes his sentence the equivalent of a life term without possibility of parole. With no analysis or citation of authority, he asserts that his punishment is excessive because in California the ordinary punishment for rape is three, six, or eight years (§§ 261, 264), and the ordinary punishment for sodomy by force is three, six, or eight years (§ 286, subd. (c)(2)).
Appellant’s crimes involved the forcible rape and oral copulation of his niece, a minor, when she was intoxicated, and the forcible rape, forcible sodomy and corporal injury of his girlfriend, including burning her with a cigarette. Based on the totality of the circumstances of this case, we conclude that, under Harmelin, appellant’s sentence was not “ ‘grossly disproportionate.’ ” (See People v. Crooks, supra, 55 Cal.App.4th at pp. 805-806.) As the trial court noted at sentencing, “[W]hen you committed these crimes, you did it to dominate, to humiliate, to control, to manipulate and in certain cases to actually hurt the people you were with.” Moreover, the fact that his sentence far exceeds the sentence range for unenhanced rape and forcible sodomy lacks merit. The One-Strike sentence imposed due to appellant’s commission of sex offenses against multiple victims “reflects the Legislature’s zero tolerance toward the commission of sexual offenses against particularly vulnerable victims.” (Alvarado, supra, 87 Cal.App.4th at pp. 200-201.) Appellant has failed to demonstrate that his sentence is grossly disproportionate.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., BRUINIERS, J.
“(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.
“(2) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving abuse of an elder or dependent person, evidence of the defendant’s commission of other abuse of an elder or dependent person is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.
“(3) Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant’s commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101.
“(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.
“(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.
“(d) As used in this section:
“(1) ’Abuse of an elder or dependent person’ means physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.
“(2) ’Child abuse’ means an act proscribed by Section 273d of the Penal Code.
“(3) ’Domestic violence’ has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, ‘domestic violence’ has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense.
“(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.
“(f) Evidence of the findings and determinations of administrative agencies regulating the conduct of health facilities licensed under Section 1250 of the Health and Safety Code is inadmissible under this section.”