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People v. King

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D058571 (Cal. Ct. App. Jan. 3, 2012)

Opinion

D058571 Super. Ct. No. RIF 136933

01-03-2012

THE PEOPLE, Plaintiff and Respondent, v. MELVIN KING, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of Riverside County, Jean Pfeiffer Leonard, Judge. Affirmed.

I.


INTRODUCTION

Defendant Melvin King appeals from a judgment of conviction after a jury convicted him of rape, making terrorist threats, vandalism, spousal battery, and false imprisonment. On appeal, King contends that the trial court abused its discretion in admitting in evidence, pursuant to Evidence Code section 1108, the fact that he suffered a conviction for sexual battery in 1994. King maintains that because the evidence that the prosecution offered was only the bare fact of the conviction, and not the circumstances of the crime, the jury did not have the opportunity to consider whether the prior crime was similar to the charged crime and was left to speculate as to the prior conviction. As part of this argument, King suggests that Evidence Code section 1108 requires testimonial evidence concerning the circumstances of the prior offense, as opposed to documentary evidence that establishes merely the existence of a conviction for the prior offense.

King also argues that because the conviction occurred 13 years earlier, the trial court abused its discretion in ruling that the fact of the prior conviction was admissible. King contends that the remoteness of the prior conviction rendered it of very little probative value with respect to his propensity to commit similar crimes.

We conclude that the trial court did not abuse its discretion in allowing the prosecutor to introduce evidence of the fact that King was convicted of sexual battery in 1994, as evidence of his propensity to commit sexual offenses. We therefore affirm the judgment of the trial court.

II.


FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The prosecution case

Jane Doe and King met in 2006 and later became romantically involved. Their sexual relationship started in March 2007. Doe was living in Riverside with her two grandchildren at the time, while King was renting a room at the home of Doe's former employer.

As of May 21, 2007, Doe decided that she did not want to continue her relationship with King because he had become too controlling and overbearing. At around 8:00 p.m. that night, Doe spoke with King on the telephone. She told him that she wanted to pick him up and bring him back to her house so that he could retrieve some items that he had left at her house.

Later that evening, Doe picked up King and drove him back to her house. Once they were at her house, Doe told King that she did not want to continue their relationship. King responded by telling Doe that he wanted to have sex with her. Doe declined. King became angry and started throwing his belongings into pillow cases. King then asked Doe where his hammer was. Once he obtained the hammer, he grabbed Doe by the shirt, pinned her against the wall, and started hitting the wall around her with the hammer, creating holes in the wall. He said, "You used me, bitch. You used me, you fucking bitch." King also said, "I'm going to kill you, bitch." Doe was terrified that King would actually kill her.

King pushed Doe into a chair and began to circle her while holding onto her by her shirt and her neck. Doe begged King to calm down. When Doe told King that she wanted to get her grandchildren, who were present in the house at the time, he threatened that he would "break this hammer in their head." At some point King ripped open Doe's shirt and exposed her breasts.

Doe left her house with King because she wanted to get King away from her grandchildren. Doe got into the driver's seat of her car and King got into the front passenger seat. King had a VCR in a pillowcase with him inside the car. His other belongings were in the trunk. King continued to curse at Doe while they drove, and he repeatedly hit her car's dashboard and radio with the hammer. King said, "I ought to kill you, bitch. I ought to kill you for what you've done to me. You used me." Doe was in fear for her safety.

At one point, King told Doe to open the passenger side window. When she did, he threw the hammer out of the car. At another point, King grabbed the steering wheel and forced the car up onto the curb, heading toward a telephone pole. As he grabbed the steering wheel, King said that he would kill both of them. He then took the VCR out of the pillowcase and hit Doe in the mouth with it. He also punched her twice in the arm.

When they were close to King's home, King directed Doe to pull over near the house, which she did. King turned the car off and took the keys out of the ignition. King continued to yell at Doe while they were in the car, and ordered her to accompany him into the house. King threatened Doe that if she tried to run or yell, he would throw her keys away. King told Doe, " 'You gonna give me some of that pussy.' " They entered the house, and King whispered to Doe that if she yelled out for help, he would kill anyone who came to try to help her.

King took Doe to his room, where he grabbed a condom, put it on, took Doe's pants down, and raped her from behind. Doe did not fight King because she was afraid of what he might do to her. After King finished, Doe pulled her pants up. King handed her the car keys, but as she started to walk out of the room, he said, " 'Just wait a minute, bitch. You ain't going nowhere.' " They both walked to Doe's car. King got into the car with Doe and told her that he was going back to her house with her.

When Doe and King arrived at Doe's house, her grandchildren were in the living room. She sent them back to bed. King then walked Doe back to her bedroom, where he again raped her. Doe asked King not to have sex with her, and she complained that King was hurting her.

After King was done, the two lay on the bed. Doe could not fall asleep. At one point, when she got up to go to the bathroom, King told her not to close the door to the bathroom. Doe did not feel that she was free to leave, and she was afraid to try to use the telephone or otherwise call for help. She tried to think of ways that she could leave without King hurting her.

At approximately 5:00 a.m. the following morning, Doe's alarm went off. She got out of bed and got her grandchildren ready for school. Doe drove King home, with one of her grandchildren in the car. When King got out of the car, he said to Doe, " 'You know this is all your fault, right?' " After Doe dropped her grandchild off at daycare, she returned home and called her friend, Jennifer. Doe told Jennifer that King had raped her. According to Jennifer, when Doe called that morning, between 6:00 and 7:00 a.m., Doe appeared to be terrified, was crying, and said that King had not only raped her, but that he had also beaten and threatened her.

After calling Jennifer, Doe drove herself to the police station and reported what had happened. Photographs taken by police and medical personnel that day showed a number of bruises on Doe's body that she indicated King had inflicted. Doe felt burning and swelling in her genital area.

Gloria Davis, a sexual assault nurse examiner at Riverside County Regional Medical Center, examined Doe on May 22, 2007. Doe told Davis that she had been sexually and physically abused by a friend, in two different locations. Davis observed two abrasions between the opening of the vagina and the opening of the anus. Doe also had bruising under her right eye, bruising on her right upper arm and left upper back, and superficial abrasions on the lower part of her neck. The abrasions to Doe's vaginal area were consistent with penetration from behind, and appeared to have been inflicted within the prior 48 hours.

Riverside Police Detective Lisa Johnson interviewed King on May 22, 2007.Detective Johnson told King that Doe had said that King raped her the previous night. King said that Doe had asked him to have dinner at her house that night, and explained that they had argued about breaking up. King denied hitting the walls of the house with a hammer, and denied touching Doe or threatening her or her grandchildren. He admitted that during the drive back to his house, he punched the dashboard of Doe's car, but he denied hitting it with a hammer. King claimed that later that night, he and Doe had consensual sex, both at his house and at her house.

This interview was recorded and an audiotape of the interview was played for the jury.

Shirley Bentley testified that she was married to King between 2000 and 2001. On August 16, 2000, Bentley had a telephone conversation with King in which he told her to gather all of the clothing and other items he had given her and go outside with him. Once they were outside, he grabbed her by the neck. King told Bentley, " 'I'm going to kill you and then have Debbie [her friend] and Shoneika [her daughter] jumped on.' " King hit Bentley's head against a window twice. He let her go when a neighbor came outside.

The trial court took judicial notice of the fact that King had suffered a felony conviction for a violation of section 243.4, sexual battery, in 1994.

Doe took her car to a car repair shop. The estimated cost to repair the damage to the interior of her car was more than $3,000.

2. The defense case

King testified that he and Doe started dating in February 2007, and they began a sexual relationship about a week or two later. On May 21, 2007, Doe called King. King told Doe that he wanted some of his things from her house and she agreed to pick him up. Doe arrived at King's residence about an hour later and took him back to her house. Doe was ignoring King, so he took some of his clothing, put it in a bag, and asked Doe to open the trunk of her car. King also retrieved his VCR and DVD players and put them in Doe's trunk. King waited a couple of hours for Doe to drive him home. During this time, Doe put her grandchildren to bed. After Doe put her grandchildren to bed, she and King got into Doe's car and she drove King home. King denied that he had put holes in any of the walls at Doe's home.

During the ride to King's home, King and Doe had an argument, and King hit the dashboard of the car with his palm two or three times. He did not cause any visible damage, as far as he could see. During this conversation, King told Doe that he wanted to break up with her.

When they arrived at King's residence, Doe helped King carry his belongings into the house. They went to King's room, and King asked Doe whether she still wanted to have sex. Doe said that she did. King got a condom and had intercourse with Doe. After they finished having sex, Doe said that she had to get back home. King said, "Let's go." They arrived at Doe's house at around 12:30 or 1:00 a.m. When they got into bed, King asked Doe if she wanted to have sex again. Doe said yes, and they had sex. This time, according to King, he was behind Doe while they lay on their sides. Doe did not tell him to stop or indicate that he was hurting her. Afterward, they went to sleep. The next morning, Doe drove King home.

King admitted that he suffered a conviction for threatening to kill or inflict serious bodily injury on another person in 2000, and that he was convicted of felony sexual battery felony assault with a deadly weapon in 1994. B. Procedural background

On May 7, 2008, the Riverside County District Attorney filed an information charging King with one count of making terrorist threats (Pen. Code, § 422; count 1),two counts of rape (§ 261, subd. (a)(2); counts 2 and 3), one count of vandalism (§ 594, subd. (b)(1); count 4), one count of misdemeanor spousal battery (§ 243, subd. (e)(1); count 5), and one count of false imprisonment (§ 236; count 6). The information alleged that as to count 1, King personally used a deadly weapon, a hammer, in committing the offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). The information further alleged that King had suffered three prison priors (§ 667.5, subd. (b)), three serious felony priors (§ 667, subd. (a)(1)), and three strike priors (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)).

Further statutory references are to the Penal Code unless otherwise indicated.

On June 3, 2010, a jury found King guilty on all counts, and found true the allegation that he personally used a deadly weapon in association with count 1. In a bifurcated trial on the prior conviction allegations, the jury found true all three of the prison prior allegations, and found true two of the serious felony prior and prior strike allegations.

The trial court struck one of King's prior strikes, and sentenced King to an upper term of six years on count 1, plus an additional year for the enhancement for personal use of a deadly weapon. The court also sentenced King to two consecutive 16-year terms on counts 2 and 3. As to count 4, the trial court sentenced King to a consecutive term of one year four months. With respect to count 5, the court imposed a concurrent sentence of 365 days, and with respect to count 6, the court imposed a four-year term, which the court stayed pursuant to section 654.

The court also imposed an additional three-year consecutive sentence for the prison priors, as well as 10 years, to be served consecutively, for the serious felony priors. The total term imposed was 53 years four months.

King filed a timely notice of appeal.

III.


DISCUSSION

Prior to trial, the prosecution filed a motion in limine seeking to admit King's 1994 conviction for a violation of section 243.4, sexual battery, pursuant to Evidence Code section 1108. The prosecution represented that "[i]n that attack, like the current case, [King] forced the victim to have sex with him while telling her to shut up. When she wanted to call the police he told her, '[G]o ahead, I'll kill you when I get out.' " The prosecution argued that the existence of a prior conviction may be proved with documentary evidence rather than through testimony, under Evidence Code section 1108. King argued that the 1994 conviction was of little probative value and would be unduly prejudicial if admitted.

The trial court held a hearing on the in limine motion prior to trial. At the hearing, the prosecutor explained that the prosecution had not been able to locate the victim in the 1994 case, but that the prosecution wanted to admit a certified copy of the 1994 conviction in lieu of testimony from the victim. Defense counsel argued that the fact of the conviction, alone, had little probative value, and, therefore, the conviction should be excluded pursuant to Evidence Code section 352.

The trial court ruled that the 1994 sexual battery conviction was relevant, and that the probative value of the conviction was not outweighed by potential undue prejudice. The court determined, however, that the conviction should be sanitized to omit the fact that King was also convicted of assault, in violation of section 245, subdivision (a)(1), in connection with the 1994 incident. The court indicated that it would instruct the jury as to how it could use the fact of King's 1994 sexual battery conviction.

During the prosecution's case-in-chief, the trial court informed the jury that the court had taken judicial notice of King's prior sexual battery conviction, stating, "At this time, the Court will take judicial notice of the fact that defendant Melvin King has suffered a prior felony conviction for a violation of Penal Code section 243.4, sexual battery, in 1994. [¶] How you may consider the defendant's prior conviction or use it in the current case will be explained to you at a later time." The trial court later instructed the jury with respect to the 1994 conviction as follows:

"The People presented evidence that the defendant committed the crime of sexual battery that was not charged in this case. The crime is defined for you in these instructions. . . . [¶] . . . If you decide that the defendant committed the uncharged offense, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offense, and based on that decision also conclude that the defendant was likely to commit rape as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of rape."

The trial court also provided, in relevant part, the following definition of sexual battery to the jury: "l) The defendant or an accomplice unlawfully restrained an individual. [¶] 2) While that individual was restrained, the defendant touched an intimate part of their body. [¶] 3) The touching was done against the individual's will, and[,] [¶] 4) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse."

King contends that the trial court abused its discretion in admitting "the bare evidence of appellant's plea to [a] 1994 offense [for sexual battery] as propensity evidence in this case." King argues that the "prosecution had no evidence to present [to the] jury regarding the specific circumstances of the prior offense," and thus "any similarity between the prior offense and the currently charged crime would necessarily be 'wholly speculative.' [Citation.]"

King appears to be arguing that the trial court abused its discretion in allowing the prosecution to introduce documentary evidence of the fact that King suffered a prior conviction for sexual battery, in the absence of testimonial evidence concerning the circumstances of that case. King argues that the prosecution "had no evidence to present [to] appellant's jury regarding the specific circumstances of the prior offense," and suggests that the text of Evidence Code section 1108 contemplates the admission of testimony regarding prior offenses, as opposed to the mere fact of conviction. He argues that the admission of the bare fact of his conviction was unduly prejudicial under Evidence Code section 352 because "in light of the absence of any evidence as to what actually happened in that offense, the jury was left to speculate as to what appellant may have done on that occasion, which was itself highly prejudicial."

Evidence Code section 1108 provides in pertinent part:

"(a) 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.
"(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."

There is no authority for King's contention that the jury must be provided evidence beyond the bare fact of the prior conviction in order for evidence of a prior conviction to be probative as to a defendant's propensity for committing similar crimes. King quotes the following language from People v. Earle (2009) 172 Cal.App.4th 372, 397, which makes clear that it is the trial court, not the jury, that is to consider whether the prior offense is similar to the current offense: " ' " . . . [A] trial court may not ' "admit or exclude every sex offense a defendant commits," ' but must ' "consider [other] factors' " bearing on the relevance, probative value, and prejudicial potential of the evidence, including ' "its similarity to the charged offense." ' [Citation.]" (Ibid.) As the Earle court indicates, the question whether a prior offense is sufficiently similar to the current offense to be admitted pursuant to Evidence Code sections 1108 and 352 is one for the court to answer. Once the court makes that determination, there is no additional requirement that the jury be provided with evidence concerning the circumstances of the prior case (although a trial court might make a determination that evidence of the circumstances is relevant and the probative value outweighs any prejudice).

Under some circumstances, a trial court might determine that additional evidence is required in order for evidence of the prior conviction to be deemed more probative than prejudicial under Evidence Code section 352, such as where the similarity of the prior conviction to the charged offense is not clear from the elements of the offenses, as it is here.

Further, it is clear that under Evidence Code section 1108, documentary evidence of a conviction may be admitted to demonstrate that the defendant committed another sexual offense, and that, contrary to King's suggestion, testimonial evidence is not required. (See People v. Wesson (2006) 138 Cal.App.4th 959, 967-968 [copy of information and abstract of judgment used to establish the fact of defendant's prior convictions is "evidence" admissible under Evidence Code section 1108; live testimony is not required].)

To the extent that King's argument may be construed as challenging whether the trial court sufficiently considered the similarities between the 1994 sexual offense and the current offenses before deciding that the prior conviction would be admitted under Evidence Code section 352, we reject that argument, as well. The court was presented with a packet of information concerning the prior crime, which the court considered in making its determination as to whether to admit the evidence pursuant to Evidence Code section 352. In addition, given the elements of the offense of sexual battery under section 243.4, i.e., 1) the defendant or an accomplice unlawfully restrained an individual; 2) while that individual was restrained, the defendant touched an intimate part of their body; 3) the touching was done against the individual's will; and 4) the touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse (see § 243.4, subd. (a)), the circumstances of that case were necessarily similar to the conduct alleged in the current case in that both situations involved forcing unwanted sexual contact on a victim. Further, it was clear from the prosecution's offer of proof regarding the prior conviction that in both cases, the victims were women with whom King was acquainted.

The trial court thus did not abuse its discretion in admitting in evidence the fact that in 1994 King suffered a conviction for sexual battery, without requiring the prosecution to also present testimony as to the circumstances of that crime.

With respect to the portion of King's argument in which he suggests that by not providing the jury with the circumstances of the prior offense, the "jury was left to speculate as to what appellant may have done on that occasion," it seems likely that the admission of the bare fact of King's conviction for the prior offense only would be less prejudicial than the admission of the fact of the conviction and evidence of the circumstances of the underlying conduct.
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Finally, King argues that because the prior offense was 13 years old at the time of the events in the current case, it was of limited value in establishing King's propensity to commit such crimes, and that on this ground, the trial court abused its discretion in admitting in evidence of his conviction. "No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 284.) We conclude that the trial court did not abuse its discretion in determining that a similar offense committed 13 years prior to the current crime is not so remote as to be of limited value, particularly where the defendant was in prison and on parole for some portion of the intervening period between the prior offense and the charged offenses.

IV.


DISPOSITION

The judgment of the trial court is affirmed.

________________________

AARON, J.

WE CONCUR:

________________________

McCONNELL, P. J.

________________________

HALLER, J.


Summaries of

People v. King

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 3, 2012
D058571 (Cal. Ct. App. Jan. 3, 2012)
Case details for

People v. King

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MELVIN KING, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 3, 2012

Citations

D058571 (Cal. Ct. App. Jan. 3, 2012)