Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC769611
Bamattre-Manoukian, J.
Defendant Oscar Demond Holmes was convicted after jury trial of forcible rape (Pen. Code, § 261, subd. (a)(2)). Defendant admitted that he had a prior section 261, subdivision (a)(2) conviction within the meaning of section 667.61, subdivisions (a) and (d), and that he had two prior strikes (§§ 667, subds. (b)-(i), 1170.12). After denying defendant’s motion to strike the strikes, the trial court sentenced defendant to prison for the indeterminate term of 75 years to life.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the trial court violated his right to due process and a fair trial by admitting evidence of his prior forcible rape conviction under Evidence Code sections 1108 and 352. As we find that the court did not err or abuse its discretion in admitting the evidence, we will affirm the judgment.
BACKGROUND
Defendant was charged by information with forcible rape. (§ 261, subd. (a)(2).) The information further alleged that defendant had a prior conviction for violating section 261, subdivision (a)(2), within the meaning of section 667.61, subdivisions (a) and (d), and two prior strikes (§§ 667, subds. (b)-(i), 1170.12). The prosecutor moved in limine to admit at trial under Evidence Code section 1108 evidence of the facts underlying defendant’s prior forcible rape conviction. Defendant opposed the request, arguing that the evidence should be excluded under Evidence Code section 352. The trial court found the evidence “to be probative and relevant,” and ruled the evidence would be admitted.
The Prosecution’s Case
The Evidence Code § 1108 Evidence
On the night of October 4, 1995, Judy Doe was driving around Campbell, lost, looking for a friend’s house. As she approached a stop light, defendant opened the car door, jumped inside the car, put something to her throat, and said, “ ‘Drive bitch.’ ” She followed his directions and then pulled over. He hit her in the face with whatever he had in his hand. She lost two teeth and her mouth was full of blood. He pulled out his penis, grabbed her by the hair, and forced her to orally copulate him. He then directed her to drive to a school yard while repeatedly hitting her in the face. At the school yard, he ordered her to lie down on the ground. She was afraid that if she did, she would not get back up, so she told him that she would do what he said but she did not want to get off her feet. She bent over standing up, and defendant put his penis into her vagina from behind. She does not remember if he ejaculated. Afterwards, defendant told Judy that, if she contacted anybody, he would have his friends and family “get” her. He drove off in the car and she ran across the street. She had two black eyes and a bloody nose, and was covered with blood. She asked a family she saw if she could use their phone to call home.
Officer Steve Hartje and another officer interviewed defendant on October 7, 1995, and a redacted version of the interview was read to the jury. After waiving his Miranda rights, defendant told the officers that he had no idea that the car he had been driving was stolen. He said that he and his cousin bought the car for $100 from a “crack fiend” in his neighborhood the night before. He did not know the man’s name or where he lived, but the man had the car’s registration. He and his cousin took the car to Half Moon Bay, where they stayed overnight at “this female’s house.” They got back home at 1:00 or 2:00 p.m. The officers told defendant that the car had been carjacked by somebody using a knife or gun. After the officers left the room and returned, defendant said that, as he was walking by a school, he saw a car in the parking lot with the keys in the ignition. He reached in and started it, jumped in, and drove off. The officers told defendant that the victim of the carjacking had also been raped, but defendant denied being involved in the rape or carjacking. The officers left the room again, and defendant later asked to speak to Officer Hartje. Defendant told the officer that the car passed him as he was at the school and the woman driving the car told him to get in the car. She then offered him sex for gas money. “So it wasn’t really a rape. It wasn’t a rape. It was willingly.” Defendant said that he gave the woman $5 and then he and the woman had intercourse and oral sex behind the school. Afterwards, he told the woman to wait for him by the gate, but he got in the car and drove off. “It’s just something that, that just, just took over me. I was just like, yeah, I’m going to take this car.” Defendant denied having a gun and denied hitting the woman or forcing her to have sex with him.
Miranda v. Arizona (1966) 384 U.S. 436.
The parties stipulated that two officers took statements from Judy in 1995. Judy did not tell either officer that defendant said anything like “If you call the police or if you tell somebody, I will get my friends and family after you.” The parties further stipulated that Judy has not received any police reports or transcripts from this case, that nobody has told her about any of the alleged threats that were made in this case, and that she has never spoken to Michelle Doe.
The Current Offense
Around 9:00 p.m. on June 4, 2006, Michelle Doe learned from the emergency housing consortium (EHC) in San Jose that she did not have a bed for the night. She called a friend, Tania Murga, in Redwood City, using defendant’s cell phone. She had met defendant at EHC about one month earlier, had seen him there regularly since that time, and considered him a friend. Defendant had given her cigarettes now and then and had let her use his cell phone. Murga told Michelle that she could stay the night with her. Michelle needed to take a bus to Redwood City and defendant walked with her to the bus stop.
As they were walking along the railroad tracks, defendant asked Michelle for “a favor for a favor.” It became clear to Michelle that defendant was asking to have sexual intercourse. They had not had sexual intercourse before and they did not have a romantic relationship; Michelle had a boyfriend at the time. Michelle told defendant no. Defendant shoved Michelle, causing her to fall onto a piece of cardboard that was on the ground. He pulled down her pants and underwear and pulled down his pants. Michelle heard a wrapper and thought that defendant was putting on a condom. She said no but she did not resist because she was afraid that defendant might hurt her. He lay on top of her and put his penis inside her vagina. She told him that he was too big and was hurting her. He pulled his penis out for a minute or so but then reinserted it. After he ejaculated, they got up, dressed, and continued on to the bus stop. Defendant told Michelle that if she told anyone what had happened, “he would get his friends and family on [her].” He let Michelle use his cell phone again to call Murga and tell her that she was on her way.
When Michelle arrived in Redwood City, she called Murga to come pick her up. Michelle told Murga what had happened. Murga went to the bus station with her mother, Kristi Hobson. Michelle does not remember whether Hobson was angry with her. Murga then went with Michelle to a hospital in Redwood City. Michelle was told at the hospital that she had to call the Santa Clara County Sheriff’s Department because the assault occurred in Santa Clara County. A San Jose police officer picked Michelle up and transferred her to Valley Medical Center (VMC), where she underwent a SART exam. When she was released from VMC, she stayed with Murga in Redwood City for a few days before returning to EHC.
Michelle testified that she starting using methamphetamine at the age of 16, that she used it and off until recently, and that her long-term memory is “not all that good.” On the night of June 4, 2006, however, she was not under the influence of drugs or alcohol.
The nurse who conducted Michelle’s SART exam testified that she began the exam at 5:45 a.m. on June 5, 2006. Michelle said that she had been assaulted by defendant near railroad tracks between 9:00 and 9:30 p.m. on June 4, 2006. She said that she had tenderness and pain below her navel and blood in her underwear. She said that defendant told her that if she told anyone “ ‘he would get his family and friends on me.’ ” The nurse found three lacerations and one area of redness in the area of Michelle’s labia minora, which were consistent with Michelle’s report of her sexual assault. The findings could also be consistent with consensual intercourse.
Michelle gave a statement to San Jose Police Officer Sean Pierce at VMC on the morning of June 5, 2006. When the officer arrived in Redwood City, around 3:30 a.m. to pick her up, Michelle was sitting in a car with Murga and a third person. Michelle was distraught and crying, but she had no visible injuries. She calmed down during the ride to VMC. Michelle told Officer Pierce that defendant asked her to have sex with him as they were walking from EHC to the bus stop by way of the railroad tracks. She said that defendant said, “ ‘a favor for a favor.’ ” She said that after she told defendant no, he pushed her and she fell onto a piece of cardboard lying on the ground. She said that defendant opened a condom, which she assumed he put on, and then pulled her pants and underwear down. She said that he told her not to do anything or he would hurt her. She said that she did not resist because she was afraid. She said that the assault lasted three to five minutes, until defendant ejaculated. She said that they then got up and he walked her the rest of the way to the bus stop. She said that defendant told her not to call the police or he would “get” his friends and family on her.
Officer Pierce talked to Murga in Redwood City and called her from VMC. Murga told Officer Pierce that, when Michelle called her for the third time that night, she sounded different. Murga said that when she asked Michelle what was wrong, Michelle said that defendant had forced her to have sex with him. Murga said that she went to the bus station, picked up Michelle, and went with her to the hospital.
Murga testified that she received a phone call from Michelle on the night of June 4, 2006, saying that she was coming over on public transportation, and then a second call from her about one hour later. When Michelle arrived in Redwood City and called again, Murga noticed a difference in Michelle’s voice. Michelle sounded tired and stressed. She told Murga that defendant forced her to have sex with him. Michelle did not appear to be very upset and did not want to go to the hospital. Murga’s mother brought Michelle home and Murga and Michelle talked for some time before Murga and her mother took Michelle to the hospital. Michelle said that defendant threatened her and that the sexual activity that occurred was against her will. The hospital told them that if Michelle wanted a SART exam it would need to be done in the county where the assault occurred. Murga has known Michelle for about eight years and, in Murga’s opinion, Michelle is always making up stories so that people will pay attention to her and pity her.
San Jose Police Detective Russell Chubon interviewed Michelle on June 7, 2006. Michelle positively identified a picture of defendant as the man who assaulted her. Michelle said that, as defendant walked with her to the bus stop, he made some suggestions about sex to her, showed her a wrapped condom, and said, “ ‘a favor for a favor.’ ” She said that she had never had any sexual activity with defendant and did not want to. She said that defendant pushed her down onto some cardboard and took off her pants and underwear, and threatened to come after her if she tried to move or struggle. Said that she was afraid and that she repeatedly told defendant that she did not want to have sex with him. She said that he undressed himself and put his penis inside her vagina. She said that she told him that it hurt and he was too big. She said that defendant pulled out, paused, and then reinserted his penis. She said that the reinsertion was painful. She was not sure if defendant ejaculated. She said that after the assault they both dressed and continued walking and parted before she got to the bus stop. She said that she noticed some blood in her underwear and thought that she might have been cut or torn during the assault. Detective Chubon took Michelle to the railroad tracks and she pointed out where the assault occurred. A condom and a wrapper were collected at the scene.
Detective Chubon asked Michelle to call defendant and confront him about what happened so that their conversation could be secretly recorded. She did not want to do it because she was afraid of defendant. She did not keep the appointment the detective made for the phone call.
Detective Chubon interviewed defendant on June 8, 2006. After waiving his Miranda rights, defendant said that he knew Michelle from EHC. He said that he would loan her his cell phone or give her some cigarettes. He said that Michelle wanted to be his girlfriend. He said that about one week after meeting her, or about three weeks before the interview, he and Michelle had consensual sexual intercourse in a pickup truck with a camper shell. He said that he had used a condom but it broke. He said that he saw Michelle at EHC on June 4, 2006, but he denied having any substantial interaction with her. He said that a male friend picked him up around 6:00 or 7:00 p.m., and that he spent the evening at the home of a woman friend and returned to EHC around 1:00 or 2:00 a.m. He said that he was aware that Michelle did not get a bed at EHC that night and that she alleged that he had sexually assaulted her. He adamantly denied having had sex with Michelle since the one time three weeks earlier. He said that he uses the phrase, “a favor for a favor” a lot, and that he often waives a condom in front of Michelle. He said that Michelle was stupid, and that he thought she was making the assault allegation in order to get back at him for not wanting to have sex with her again. He offered to provide a saliva DNA sample, and did so.
A criminalist from the county crime lab testified that he determined that defendant was the source of the semen found on the vaginal swabs and the cutting from the underwear in Michelle’s SART kit. The semen was left within three to five days of when the swabs were taken. The criminalist further testified that the cutting from the underwear tested presumptively positive for blood, that both defendant and Michelle were the source of the DNA found on the cutting, and that there was a small amount of other older semen found on the cutting that was not attributable to defendant.
The Defense Case
Hobson, Murga’s mother, testified that, at the time she picked up Michelle, she was not aware of anything about a possible sexual assault. Michelle seemed fine, but Hobson yelled at her because of some things she had done. Michelle did not say anything about being assaulted until 20 to 30 minutes after they arrived at Hobson’s home, and after Hobson told Michelle that she could stay only one night. Michelle said that while defendant was walking along the railroad tracks with her, he suddenly pulled out a condom and told her that he would hurt her if she tried to run. Michelle seemed nervous when Hobson told her that she wanted to take her to the hospital. When asked if Hobson has an opinion about Michelle’s trait for honesty, Hobson responded, “she doesn’t know what it is.”
Elvira Escamilla testified that she was a residential counselor at EHC in June 2006. Michelle was both a client of hers and was related to her by marriage. In her opinion, Michelle “exaggerates,” and sometimes acts inappropriately. For instance, Michelle did not show any emotion when her mother died, and she showed up at EHC wearing a sports bra to talk to a social worker about her mother’s burial.
Defendant testified in his own behalf. He testified that in 1995 he jumped into Judy Doe’s car, grabbed her by the neck and took control of her and the car. He pretended that he had a knife or a gun. They drove to a secluded location where he beat her. He told her to put his penis in her mouth and he committed an act of intercourse against her will. He was convicted of rape and carjacking as a result of the incident. When he was questioned by the police about the incident, he lied. He first told them that he did not know anything about the incident, and then told them that the victim was crazy, that she told him to get into the car, and that they had consensual sex. He never told the police the truth. He also lied to the jury during the trial in the case when he testified that the sex was consensual, and he lied to the probation officer after his conviction when he said that he struck the victim and stole her car after having consensual sex.
On June 4, 2006, he had known Michelle for about one month. He socialized with her both outside and at EHC, and they once had sex in the camper of a pickup truck. Defendant had a bed at EHC on June 4, 2006, but Michelle did not. He let her use his phone to call a friend and then offered to walk with her. While they were walking along the railroad tracks, he jokingly asked her “for a blow job.” Michelle said no. He then asked, “how about sex?” Michelle said that she did not really want to have sex. He showed her a condom, and she again said no. He said, “come on. Let’s have sex right quick. [¶] The whole time I’m laughing and joking back and forth with each other, right. And we’re walking.” When Michelle said that she did not want to miss her bus, he said that the last bus was not until 10:30 p.m. “I said there’s some cardboard right there, let’s have sex. [¶] She said, Yes. She said, Yes.” He did not push her. They walked over to the cardboard, which was 10 to 12 feet away, and she lay down. He pulled down his pants and put the condom on while she tried to take off her pants. She said her zipper was stuck so he helped her with it. When she said that he was hurting her, he pulled out his penis until she said she was fine. He put his penis back in until he ejaculated. He did not hold her down or threaten her. Afterwards, they got up, put on their clothes, and walked to the bus stop. She asked to use his phone again and called her friend to say that she would be a little late. He and Michelle talked and laughed until she got on the bus and left.
Three days later, on June 7, 2006, after he got off work, he learned at EHC that Michelle had accused him of sexually assaulting her. He went to the police station but they told him to call back in the morning. He spent the night at a relative’s house and called the next morning, but was told that the whole sexual assault unit was out. After work, he saw Michelle at EHC. He was angry at her because she had said that he did something that he did not do. He told her that she had better tell the truth, and that he would “get my friends and family on her, if she didn’t tell the truth.”
At the police station on June 8, 2006, he was handcuffed and read his Miranda rights. He lied because he was afraid; he felt that his past had come back to haunt him. He also felt that he would be convicted regardless of what he said. Although it occurred to him that DNA tests might show that he did have sex with Michelle, he thought that an examination would show that no force was involved. He asked to take a lie detector test, knowing that the results are inadmissible in court, but was not given one.
Findings on the Priors, Verdict, and Sentencing
While the jury was deliberating on October 23, 2007, defendant waived his right to a jury trial on the prior allegations and admitted all the alleged priors. (§§ 667.61, subds. (a) & (d), 667, subds (b)-(i), 1170.12.) On October 25, 2007, the jury found defendant guilty of forcible rape (§ 261, subd. (a)(2)). On February 26, 2008, the date set for sentencing, defendant made an oral motion to strike his strikes. The court denied the motion and sentenced defendant to state prison for 75 years to life.
DISCUSSION
Defendant contends that the trial court erroneously admitted evidence of his prior forcible rape in violation of Evidence Code sections 1108 and 352. He first argues that Evidence Code section 1108 is unconstitutional because it permits introduction of evidence of prior sexual offenses to prove disposition or propensity for committing the sexual offense for which the defendant is on trial. Citing McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384, he argues that it is federal constitutional error to permit introduction of such evidence for the sole purpose of proving propensity. However, he acknowledges that our Supreme Court has held that Evidence Code section 1108 does not violate a defendant’s right to due process (People v. Falsetta (1999) 21 Cal.4th 903, 910-922 (Falsetta)), and that we are bound by that court’s decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Evidence Code section 1108 creates an exception to the general prohibition against admitting evidence of character to prove conduct. (See Evid. Code, § 1101, subd. (a).) The statute provides that in a prosecution for a sex offense, evidence of other sexual offenses by the defendant may be admitted to show a propensity to commit such offenses, provided the evidence is admissible under Evidence Code section 352. (Evid. Code, § 1108, subd. (a); People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013.) 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.” Prejudicial evidence means “ ‘evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 320; see also People v. Harris (1998) 60 Cal.App.4th 727, 737 (Harris).) “ ‘In applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Painting a person faithfully is not, of itself, unfair.” (Harris, supra, 60 Cal.App.4th at p. 737.)
“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.” (Evid. Code, § 1108, subd. (a).)
In Falsetta, the court “outlined the factors that a trial court must consider in determining whether to admit evidence of other sex offenses under [Evidence Code] section 352. These factors include the ‘nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]’ ([Falsetta, supra,] 21 Cal.4th at p. 917.)” (People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson).)
“This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ [Citation.]” (Wesson, supra, 138 Cal.App.4th at p. 969; People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) We will not disturb the trial court’s ruling “except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Defendant contends that the evidence of his forcible rape of Judy Doe was more prejudicial than probative. He argues that the evidence was not probative of a disputed fact and that it was extremely inflammatory. “There was no dispute [defendant] participated in the act of sexual intercourse with Michelle. The dispute was whether that act was consensual. The question is what about the Judy Doe rape provided evidence that [defendant] harbored the intent to penetrate Michelle against her will?” “Further, in contrast to its low probative value, the prejudicial effect of the prior rape evidence was ‘extreme.’ ” “[T]he prior rape involved violent, abusive conduct against a stranger. . . . By contrast, the currently charged offenses involved no such violent behavior or language. Michelle and [defendant] were friends, even by her own account.”
In this case, the Evidence Code section 352 factors outlined in Falsetta and Wesson militated heavily in favor of the admission of evidence of defendant’s prior sexual offense. The two offenses were both a forcible rape of an adult victim and in both instances defendant’s defense was consent. Although “the degree of similarity present is not sufficiently distinctive to make the evidence admissible under [Evidence Code] section 1101, . . . it did not need to be.” (Harris, supra, 60 Cal.App.4th at p. 740.) And, although the prior rape occurred 11 years before the current offense, the prosecutor informed the court that defendant had just been released on parole a few months before the current offense. The jury in this case was aware that defendant was convicted by a jury of the prior offense, so there was no danger of confusing, misleading, or distracting the jury in this case from their main inquiry. In addition, Judy’s testimony regarding the prior offense took only 10 pages of transcript to report and the testimony regarding defendant’s statement to police about the incident took 45 pages of transcript, so it did not necessitate an undue consumption of time. Although the evidence was “damaging” (People v. Karis, supra, 46 Cal.3d at p. 638), we cannot say that the evidence was so prejudicial that the court’s decision to admit the evidence “falls outside the bounds of reason.” (Wesson, supra, 138 Cal.App.4th at p. 969.) Accordingly, we cannot say that the court erred or abused its discretion in admitting the evidence of defendant’s prior sexual offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., ELIA, J.