Opinion
B302424
02-19-2021
THE PEOPLE, Plaintiff and Respondent, v. DAVIS MORENO-JAIME, Defendant and Appellant.
Levine, Flier and Flier and Andrew Flier for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA091406) APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed. Levine, Flier and Flier and Andrew Flier for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Roberta L. Davis and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Davis Moreno-Jaime appeals from a judgment entered after a jury found him guilty of forcible rape, and the trial court sentenced him to eight years in prison. He contends the trial court erred in admitting (1) evidence of uncharged sexual offenses in the prosecution's case-in-chief and (2) a detective's testimony regarding Moreno-Jaime's out-of-court statements in the prosecution's rebuttal case. For the reasons explained below, we reject his contentions and affirm the judgment.
BACKGROUND
I. Prosecution Case
A. Evidence of charged offense
1. Victim K.C.'s testimony
K.C., the victim of the charged forcible rape, testified at trial. She met Moreno-Jaime at a university in Los Angeles County, where they were both students and each played on the school soccer team. K.C. considered Moreno-Jaime a friend, as the members of the women's and men's soccer teams knew each other. They had not dated, and they had not spent time alone together prior to the charged incident.
In January 2018, just before the start of spring semester of her freshman year in college, K.C. had a small gathering in her dorm room. An acquaintance K.C. invited to the gathering asked if she could bring Moreno-Jaime, and K.C. said yes. According to K.C., no one drank alcohol or used drugs in her dorm room at the gathering. When the gathering ended, Moreno-Jaime remained in K.C.'s dorm room. The two were alone, sitting around the kitchen table and talking about soccer. At some point, K.C. stood up and told him it was time for him to leave because it was late, and she had to get up early the next day. He indicated he did not want to leave, asking if he could have "a shot" with her because she was no longer dating his teammate. K.C. responded, "I'm not doing this," and reiterated that she wanted him to leave.
Moreno-Jaime did not leave. He walked toward K.C., and she put her hands out in front of her, indicating she did not want him to approach. He "grabbed [her] by the neck and pushed [her] on the couch." He climbed on top of her as she lay on her back. She pushed and kicked in an unsuccessful attempt to get him off her, and she told him to stop. She tried to yell, but she was "gasping for air" because his hands were still around her neck. He punched her on the nose with his fist, and she felt blood dripping from her nose. He smirked and told her she "wanted it." He used his thumb to wipe blood from her chin. He grabbed the front of her gray, V-neck shirt and ripped the small pocket on it. He pulled her pants ("jeggings" with no button or zipper) halfway down her legs. She heard him unbuckle his belt. He penetrated her vagina with his penis, as she stated, "[p]lease don't do this" and "stop." After he finished, he said, "That wasn't hard." He also warned she would "regret it" if she told anybody what happened. He buckled his belt and left her dorm room.
K.C. was alone and scared. She felt like she "didn't want to be alive." She changed her clothes and cleaned the blood off her face. She wanted to talk to someone, so she called her best friend J. Benitez, using the FaceTime application on her cell phone. She was crying during the call. She did not tell Benitez about the rape because Moreno-Jaime had warned her not to say anything. She took a shower, as she continued to cry. Her roommate, who had not attended the gathering, came home while K.C. was in the shower. K.C. did not tell her roommate what happened or report the incident to the police because she was scared.
Benitez did not attend the same university as K.C.
The first time K.C. told anyone about the rape was during her summer break in 2018, after her freshman year of college, around seven months after the incident. She had returned to her parents' home and found it difficult to pretend everything was fine. She wanted their support. As she started to tell them what happened, the sad look on her mother's face stopped her from recounting the whole incident. Instead, she told them her roommate walked into the room, stopped something (undefined) from happening, and they reported the incident to the men's soccer coach at the university (none of which occurred). A few days later, K.C. told her parents she was raped. Thereafter, she told her college roommate and Benitez the same.
At some point during the summer break, after K.C. told her parents about the rape, K.C. noticed in her bedroom closet the gray, V-neck shirt Moreno-Jaime had ripped during the incident. She started crying. Her mother came into her room. K.C. threw the shirt to her mother and asked her mother to "get rid of it" because she "didn't want to see it anymore." Her mother took the shirt out of the room, and K.C. never saw it again.
After disclosing the incident to her parents and friends, K.C. was hesitant about reporting the rape to the university or the police because (1) seven months had passed and (2) she was not sure she wanted to go through that. Eventually, she read a tweet on Twitter from a young woman who said Moreno-Jaime had also sexually assaulted her. K.C. did not know the woman. K.C. contacted her, and they shared their experiences. They never met in person. The woman encouraged K.C. to report the incident to the police. K.C. remained hesitant.
Later, an officer from the university police department contacted K.C. about Moreno-Jaime. The officer asked K.C. to call Moreno-Jaime and confront him about the incident while the police recorded the call. K.C. declined to participate in the pretext call because she did not want to hear his voice.
2. Amber C.'s testimony
Amber C., K.C.'s mother, also testified at trial. She stated she noticed changes in K.C.'s behavior during the spring semester of her freshman year in college: K.C. was "getting really frustrated a lot," her grades went down, she was "short" with Amber during phone calls, and she no longer wanted to visit her parents on weekends. When Amber inquired, K.C. said nothing was wrong.
According to Amber, when K.C. returned home for summer break in 2018, after her freshman year in college, she was still "getting frustrated a lot," and she appeared "sad in her room a lot." Her final grades for the spring semester were "bad." After initially maintaining that nothing was wrong, K.C. vaguely told Amber there was an incident at the university where "someone was doing something [to her] and her roommate came in and they ran to the coach and told him," and the person was reprimanded. K.C. did not elaborate or disclose the sexual nature of the incident. A couple days later, K.C. told Amber she was raped during the incident, but she did not provide details. Amber and K.C. discussed the "pros and cons" of reporting the incident to the university or the police. They had not come to a decision when a police officer contacted K.C. about Moreno-Jaime.
Amber also testified that she threw out a shirt (that K.C. described during her testimony as the shirt she wore during the incident). Sometime after K.C. disclosed the rape to her, Amber went into K.C.'s room and saw that K.C. was "having a breakdown and crying" hard. K.C. pointed to a shirt on the floor and asked Amber "to get rid of it" because she "never wanted to see it again." Amber picked it up and recognized it as an old shirt she had purchased for K.C. Amber observed that the front of the shirt was ripped, near the pocket. Amber took the shirt and threw it away in a trash can outside the house.
3. J. Benitez
J. Benitez, who testified at trial, is the friend K.C. called immediately after the incident with Moreno-Jaime in January 2018. According to Benitez, K.C. was crying during their FaceTime call. K.C. told Benitez that she "had some people over to her [dorm] and that something like really awful happened to her." K.C. also stated during the call that Moreno-Jaime was the last person to leave the gathering, and he tried to have sex with her, but she did not want to have sex. The call was "cut short" because K.C. said her cell phone was about to run out of battery and Moreno-Jaime had taken her phone charger. After the call, whenever Benitez talked to K.C., Benitez noticed K.C. "wasn't herself"; she "seemed more emotional," and she was not as happy, smiley, and energetic as she was before the incident. Several months later, K.C. told Benitez that Moreno-Jaime raped her the night of their FaceTime call in January 2018.
During cross-examination, Benitez indicated K.C. "appeared a little intoxicated" during the FaceTime call. K.C. told Benitez the "main reason she was crying" was because "boys don't respect" her, they "just want to have sex" with her. Benitez did not observe any blood or injury on K.C.'s face during the FaceTime call.
On redirect, Benitez explained she believed K.C. was intoxicated because she was acting "really emotional," and Benitez "knew" people had been drinking alcohol at the gathering in K.C.'s dorm room. As set forth above, K.C. denied at trial that there was alcohol use at the gathering.
Also on cross-examination, Benitez explained a campus police officer contacted her to ask her about K.C. and Moreno-Jaime, and she originally told the officer she believed K.C. had had sex with Moreno-Jaime prior to the incident in January 2018. When Benitez told K.C. what she said to the officer, K.C. started crying and told Benitez she had never had sex with Moreno-Jaime before the incident, and she did not know why Benitez would say that to the officer. In a subsequent interview, the officer again asked Benitez about K.C.'s prior relationship with Moreno-Jaime. Benitez told the officer she never met Moreno-Jaime and might have confused him with another person from the men's soccer team that K.C. dated, as their first names started with the same letter.
B. Evidence of uncharged offenses
1. J.G.
J.G. testified at trial about uncharged sexual conduct by Moreno-Jaime that occurred in March 2018 (a couple of months after the charged incident with K.C.), when both J.G. and Moreno-Jaime were in their freshman year of college at the same university as K.C. During her freshman year, J.G. lived in an apartment building across the street from university campus housing. Moreno-Jaime lived in the same building, across the hall from J.G. They met at a party in their apartment building. They danced and kissed. He asked her to go to his apartment, and she declined. They did not talk for the rest of the party. Subsequently, Moreno-Jaime found J.G.'s profile on a social media application, and the two began communicating through their social media accounts.
On March 31, 2018, Moreno-Jaime sent J.G. a message, inviting her over to his apartment to drink alcohol with him. She accepted his invitation, and later walked across the hall to his apartment. When she entered, she did not see anyone else in his apartment. He asked her if she wanted a drink, and she responded affirmatively. He went to the kitchen, and she went to the bedroom and sat on his bed. He joined her on the bed, and they drank alcohol. She had three shots of vodka, and he drank the rest of the full, tall bottle of vodka. She felt drunk.
According to J.G., she and Moreno-Jaime began taking their clothes off and engaging in consensual sexual activity. At that point, she intended to have sex with him. Then, he pushed her head toward his penis. She did not want to put her mouth on his penis, but she felt physical pressure (both his hands pushing her head) and "social pressure" ("that if I didn't do it, . . . he wouldn't like me"). She orally copulated him.
Next, Moreno-Jaime moved J.G. onto her stomach, grabbed her wrists, and pinned them to the bed so she could not move. She did not want to be in that position. She began "tearing up" because he was squeezing her wrists and she "felt like his force was unnecessary." She also felt confused. He placed his penis inside her vagina, and she felt pain. At first, she did not say anything because she was looking at her wrists to see if she could move them. Then, she asked him to stop and to put on a condom. He told her no and indicated he was experienced at pulling out before he ejaculated ("my pullout game's strong"). Appearing angry, he left the bed and went to the bathroom, taking his cell phone with him. She sent him a message through a social media application, asking him to come back to the bedroom.
Moreno-Jaime returned to the bedroom, and he and J.G. sat on the bed and talked. He asked her if she wanted to drink a beer or smoke marijuana, and she declined. He left the bedroom, brought back a bottle of beer, and began drinking it. She told him she would drink some if he poured it. He pulled her head back by her hair and her neck, hurting her, and he poured the beer into her mouth. He did not stop as the beer spilled "all over" her face and her hair. She asked him why he did that, and he did not respond. "He just looked like really confused," with "this stare, like he wasn't even there." She did not "remember what happened after that."
Sometime later, J.G. "woke up" (still in Moreno-Jaime's bed). Her body felt "weird" and "light," and her "vision was blurry." She could only move "slowly." Moreno-Jaime was lying next to her, using the FaceTime application on his cell phone to talk to a female and a male. He was laughing. After he ended the call, he and J.G. argued about "[w]hy he was on the phone and what was happening." He told her she was "crazy." Using profanity, he yelled at her, indicating that she had had sex with someone he knew and now he (Moreno-Jaime) was going to have sex with her. He called her "easy" multiple times.
Moreno-Jaime told J.G. his roommates were coming home, and she should get dressed. As soon as she was dressed, one of the roommates came into the room and said something (not disclosed because of a sustained hearsay objection), which caused her to go into the bathroom to look at herself in the mirror. She had a difficult time walking to the bathroom, and she fell when she was inside the bathroom, because her "movements were slow" and she "felt really weak." When she looked in the mirror, she observed two "dark purple" bruises "on the center of [her] neck," which were not there before she went to Moreno-Jaime's apartment. She started crying because (1) she "realized . . . why [her] neck was in pain," and (2) she "didn't know how [she] got those" bruises. She wanted to hurt Moreno-Jaime.
J.G. walked out of the bathroom and confronted Moreno-Jaime, asking him what he did to her. She called him a derogatory name, and he jumped toward her, as if he were going to hurt her. One of Moreno-Jaime's roommates stopped him from reaching her. Then, J.G. "went at him [Moreno-Jaime]," but two of his roommates picked her up, carried her out of the apartment, and placed her down in the hallway. She walked away and fell. She tried to go back to Moreno-Jaime's apartment because she wanted to "hurt him." The roommates picked her up again, carried her to her apartment, and put her in bed. She went to sleep.
When J.G. woke the next day, her "neck felt ten times worse" than it had the night before. She also had a headache and felt pain in her vagina, although she did not "remember getting cut" in her vagina. She showered, iced her neck, went to class, and then to the student health center. She told a doctor she had been assaulted. A campus police officer responded to the student health center and interviewed her. Then, a Los Angeles Police Department (LAPD) officer took her to a sexual assault center where she had another interview and a medical examination. The prosecutor showed the jury photographs of bruising on J.G.'s neck taken the day after the incident.
J.G. testified that she met K.C. (the victim of the charged offense) once at a party. That was the only time they spoke. They did not talk about Moreno-Jaime.
2. H.S.
H.S. testified at trial about uncharged sexual conduct by Moreno-Jaime that occurred around October or November 2017 (a couple months before the charged offense), while she was a student at the same university as Moreno-Jaime (and K.C. and J.G.). H.S. met Moreno-Jaime through a social media application, and they began sending each other messages. In October or November 2017, Moreno-Jaime sent H.S. a message, inviting her to "hang out" at his apartment. She responded that she "didn't want to have sex," and she "wasn't interested in any type of those advancements at that time." He said "okay," and she accepted his invitation.
When H.S. arrived at the apartment, she noticed Moreno-Jaime "smelled like alcohol." He told her his roommates were at a party, and he took her to his bedroom. She sat on his bed. He offered her an alcoholic beverage, and she declined. He got himself a drink and sat on the bed with her. They talked. He told her he did not attend the party with his roommates "because when he gets drunk he tends to get angry." He referenced an incident where he "fought a kid because he was just drunk and he was angry." H.S. felt scared because she believed Moreno-Jaime was drunk.
Moreno-Jaime asked H.S. why she was sitting at the other end of the bed. She moved closer to him, and they continued talking. He asked her if she "was going to do anything," which she interpreted to mean have sex with him. She said no. He responded, " 'you didn't dress like that for nothing.' " She was wearing shorts and a tank top, with a zip-up jacket over the tank top. He reached in her jacket and squeezed her breast as he played with her hair. Then, he twisted her hair around his hand so she could not move her head, and he brought her head down to his penis. He told her she was going to orally copulate him (expressed in more vulgar terms). He pulled down his pants and "shoved [her] head down." As his penis entered her mouth, due to him pushing her head down, she vomited into her mouth and started to cry. He let go of her hair and asked her what happened. She responded, " 'nothing.' " He told her she had to leave his apartment because his roommates were coming home. She walked back to her dorm and took a shower because she "felt really dirty." She had no further contact with him.
H.S. told a friend what happened with Moreno-Jaime, and the friend encouraged her to report the incident to the police. H.S. did not report it at that time because she was "scared" the police would not believe her "because of what [she] was wearing" during the incident. Later, another friend sent her "a Twitter post about a girl that had gone through a similar experience" with Moreno-Jaime. Feeling that she was not alone, she made a police report in August 2018, around 10 months after her encounter with Moreno-Jaime.
The prosecutor showed H.S. photographs of K.C. and J.G., and H.S. stated she did not know either.
3. V.G.
V.G. testified at trial about uncharged sexual conduct by Moreno-Jaime that occurred eight or nine months before the charged offense, while she and Moreno-Jaime were enrolled in the same high school. Prior to this incident, V.G. had not dated Moreno-Jaime or had sexual contact with him.
In April 2017, V.G. attended the school prom. Moreno-Jaime was also there. After the prom, she and three girl friends went to an after-prom party in a hotel room. There were around 10 people there, including Moreno-Jaime. V.G. drank "[q]uite a bit" of alcohol from a "liquor bottle." After socializing for a while, she felt tired, so she dozed off on one of the beds in the hotel room.
V.G. woke up, and Moreno-Jaime's penis was in her mouth. He was holding the back of her neck and moving her head. Another male high school student was behind her, touching her "vaginal area." She felt like she "wanted to fall asleep again." The next thing she remembered was being on top of Moreno-Jaime, while wearing her dress. She was not sure if he inserted his penis in her vagina. She recalled he said something to her while she was on top of him, then she "just pulled back and passed out." When V.G. woke, her "hair was really messy" and she "was kind of confused." She gathered her things and left the hotel room with a friend.
The following day, V.G.'s neck was in pain, and she told her best friend what happened with Moreno-Jaime. She did not report the incident to the police at that time because she believed it was her fault because she drank alcohol. Sometime later, she saw a Twitter post in which a girl was warning others to be careful around Moreno-Jaime. Because of the post, she decided to report the incident to the police.
II. Defense Case
In his defense, Moreno-Jaime called Lieutenant Rene Lino as a witness. He is the university campus police officer who interviewed K.C.'s friend J. Benitez. During the interview with Lino, Benitez said she did not see any blood or injury on K.C.'s face during the FaceTime call on the night of the incident. Benitez also said K.C. was upset and crying during the FaceTime call, and she told Benitez that Moreno-Jaime had "attempted to sexually assault her."
According to Lieutenant Lino, Benitez further stated K.C. told her she had a sexual relationship with Moreno-Jaime prior to the January 2018 assault. Lino reported this information to K.C., and K.C. became upset, adamantly denying a prior sexual relationship. In a subsequent conversation, Lino asked Benitez for clarification, and Benitez told him she thought K.C. had a prior sexual relationship with Moreno-Jaime, but she (Benitez) "could have gotten it wrong." Benitez explained she "may have inadvertently mixed up the name of somebody who K[.C.] was seeing at the time on the soccer team."
Lieutenant Lino also interviewed K.C.'s mother Amber, who stated K.C. initially told her (before disclosing the rape) that a male "walk[ed] in on her" in her dorm room, and the matter was reported to the soccer coach. K.C. did not tell Lino about making this statement to Amber.
III. Rebuttal Evidence
On rebuttal, the prosecution called LAPD Detective Ruben Arellano as a witness. He interviewed Moreno-Jaime on August 3, 2018. Moreno-Jaime waived his Miranda rights and agreed to speak with Arellano. Moreno-Jaime told Arellano he had "hung out with [K.C.] a couple times" and might have "kissed her once," but he was never alone with her, and he never had a sexual relationship with her.
IV. Verdicts and Sentence
Before reaching a verdict, the jury requested a readback of K.C.'s "complete testimony." During the readback, the jury stopped the court reporter at some point before the court reporter read the entire testimony. Thereafter, the jury found Moreno-Jaime guilty of forcible rape. (Pen. Code, § 261, subd. (a)(2).)
At the sentencing hearing, the trial court heard victim impact statements from K.C.'s grandmother, J.G. (victim of uncharged offense), J.G.'s father, V.G. (victim of uncharged offense), and V.G.'s mother. The prosecutor read a statement written by K.C. (victim of charged offense), who did not want to be present in court for sentencing.
After reviewing the sentencing memoranda, hearing oral argument by the parties, and considering factors in aggravation and mitigation, the trial court sentenced Moreno-Jaime to the upper term of eight years in prison for the rape.
DISCUSSION
I. Admission of Evidence of Uncharged Offense
Under Evidence Code section 1108, subdivision (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." Under section 352, "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." Moreno-Jaime contends the trial court abused its discretion in admitting the evidence of uncharged sexual offenses under section 1108, arguing the evidence was inadmissible under section 352 because it was unduly prejudicial.
Further statutory references are to the Evidence Code.
A. Proceedings below
At a pretrial hearing, the parties argued regarding the admission of evidence of uncharged sexual offenses. The prosecution sought to introduce evidence of uncharged offenses involving four women: J.G., H.S., V.G., and a woman identified as "T" (who is the only one of the four who did not testify at trial). Defense counsel informed the trial court that law enforcement investigated all four cases, and the prosecution originally sought to charge Moreno-Jaime for sexual offenses involving these four women but did not do so for some reason.
Defense counsel argued there should be "a very short, to-the-point trial" on the single-count information against Moreno-Jaime because the case came down to Moreno-Jaime's "word against [K.C.]'s word." Counsel asserted the prosecution wanted "to try and tip the scales and get that extra edge" by introducing evidence of uncharged sexual offenses where the evidence was "not good enough to charge" Moreno-Jaime with the other offenses. Counsel also noted that all the allegations of sexual misconduct against Moreno-Jaime were "spawned because of social media": "There was some Twitter [post] sent out about [Moreno-Jaime]. And all of a sudden, women start coming forward."
Defense counsel asked the trial court to exclude all evidence of uncharged offenses and "[l]et the People's case rise or fall based on the credibility of their alleged victim [K.C.]." In the alternative, counsel asked the court to "limit [the evidence] so it's more fair for the defendant." In support of the latter request, counsel commented: "I don't know. The high school. The prom. He tries to do something with someone else's prom date [V.G.]. Another one of the witnesses [J.G.] is talking about that she agreed to -- she was good with having sexual intercourse with the defendant but he just didn't handle it the right way."
The prosecutor argued evidence of the uncharged "sexual assaults of multiple other women within a short amount of time is indicative of [Moreno-Jaime's] propensity to commit this type of conduct," and such propensity evidence is admissible under section 1108. The prosecutor pointed out the jury would be instructed on the burden of proof on the charged and uncharged offenses and the proper consideration of evidence of the uncharged offenses. The prosecutor informed the trial court she expected her case-in-chief (including the uncharged offenses) to "be done within two days," so the evidence of uncharged offenses would not "creat[e] this lengthy trial scenario." She added: "All of those acts are very isolated in time and content."
Before taking the matter under submission, the trial court commented: "What I will note is that when it comes to [section] 1108 evidence, referring to CALCRIM 1191 [jury instruction], the fact that the D.A.'s office didn't charge a case, meaning that perhaps they either needed more information or they couldn't prove it beyond a reasonable doubt, is not the end of the inquiry. [¶] Because under 1191A in CALCRIM, the burden of proof to prove a prior uncharged act is a preponderance of the evidence. And if, of course, the jury does not believe that the People have met their burden, and they are presumed to follow the court's instructions, they are to entirely disregard that evidence. [¶] So I appreciate your analogy of breaking the tie, but certainly it would be an improper basis for the jury to break the tie by merely saying, you know, he may have done it before. If the People haven't met their burden of proof, then, of course, the defendant should be acquitted on the charge. If they have met their burden of proof, then conversely, he should be convicted. [¶] And in terms of tipping the scales, I think you're right. I think [section] 1108 operates to do that. But it's statutorily allowed. The California State Legislature has said, in these types of cases, we are going to allow this type of propensity evidence in."
Later, when the trial court ruled on the matter from the bench, the court provided a brief summary of the facts of each incident of uncharged sexual conduct. The court stated the charged and uncharged offenses qualify as sex offenses within the meaning of section 1108. Then, the court explained: "When considering whether to admit [section] 1108 evidence, the court still must engage in a [section] 352 analysis. Things to consider are the nature of the prior offenses; the relevance of the prior [offenses] to be admitted; the time frame involved. [¶] Was the defendant convicted of the prior[?] If he was, it actually benefits the defendant because courts have said it takes the issue of uncertainty away from the jury and would decrease speculation from the jury that the defendant was or was not guilty of the prior offense. [¶] And the fifth prong is will there be an undue consumption of time."
After stating it had considered enumerated case law, the trial court ruled: "In this case, the court is going to allow the evidence in. I have considered [section] 352. I think the evidence is relevant as it shows a common scheme or plan and absence of mistake or accident. [¶] I don't believe the prior offenses are more inflammatory than the current offenses [sic]. So, therefore, I don't believe there will be any prejudice."
B. Legal principles and analysis
Ordinarily, evidence of a defendant's prior bad acts is inadmissible to prove his propensity to commit the charged offense, but may be admitted where relevant to prove a fact such as motive, intent, plan, etc. (§ 1101, subds. (a)-(b).) As set forth above, however, section 1108 permits the admission of evidence of prior sexual offenses to show a defendant's propensity to commit a charged sexual offense, so long as the evidence of the uncharged offenses is not inadmissible under section 352 (i.e., "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"). (§§ 352, 1108, subd. (a)(1).)
"The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) " ' "In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citations.]' [Citation.] " ' "Undue prejudice" refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis: "The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." ' " ' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.)
In deciding whether to admit evidence of a prior sexual offense under section 1108, "trial judges must consider such factors as its 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." (People v. Falsetta, supra, 21 Cal.4th at p. 917.)
"Like any ruling under section 352, the trial court's ruling admitting evidence under section 1108 is subject to review for abuse of discretion." (People v. Story (2009) 45 Cal.4th 1282, 1295.) "A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Hollie, supra, 180 Cal.App.4th at p. 1274.)
Here, the trial court considered the pertinent factors, and its decision to admit the evidence of uncharged sexual offenses did not fall outside the bounds of reason. The offenses, with four different young women, occurred during one calendar year: The first uncharged incident (V.G.) occurred in April 2017, near the end of Moreno-Jaime's senior year in high school; the next uncharged incident (H.S.) occurred in October or November 2017, during the fall semester of his freshman year of college; the charged offense (K.C.) occurred in January 2018, just before the start of the spring semester of his freshman year in college; and the final uncharged incident (J.G.) occurred in March 2018, a couple months after the charged offense. All four incidents involved acquaintances of Moreno-Jaime who went to school with him. During each incident, he used force to accomplish a sex act. The proximity in time of these incidents, coupled with the similarly-situated victims, bolsters the relevance and probative value of the uncharged offenses.
Other common threads between the charged offense and one or more of the uncharged offenses included grabbing the victim by the neck, mentioning the victim's sexual relationship with another male, and telling the victim she wanted the sex acts he inflicted upon her.
The evidence of uncharged sexual offenses did not "necessitate undue consumption of time" or "create substantial danger of . . . confusing the issues, or of misleading the jury." (§ 352.) The prosecution's case-in-chief lasted not quite two, full court days, consistent with the prosecutor's pretrial estimate. The prosecution did not conduct a minitrial on each uncharged sexual offense. Only the victim of each incident of uncharged conduct testified; the prosecution did not call additional witnesses (friends, relatives). The victims were available for cross-examination, and the jury was able to evaluate their credibility. Moreno-Jaime does not dispute the jury was properly instructed on the burdens of proof on the charged and uncharged offenses and the proper consideration of evidence of uncharged offenses. We have no reason to believe the jury disregarded the instructions and found him guilty of the charged offense, not because the prosecution proved the elements beyond a reasonable doubt, but because they wanted the trial court to impose punishment for his prior bad acts.
Moreno-Jaime argues the quantity of uncharged sexual offenses (three) was unduly prejudicial, given there was only one charged offense. We disagree. The evidence of uncharged conduct was highly probative in demonstrating the unmistakable pattern of Moreno-Jaime engaging in social encounters with female acquaintances with whom he attended school, which ended with him asserting whatever force necessary to accomplish the sex act of his choice without the consent of the victim. As discussed above, "highly probative" evidence, while prejudicial to a defendant's case, is not the type of "prejudice which exclusion of evidence under . . . section 352 is designed to avoid." (People v. Hollie, supra, 180 Cal.App.4th at p. 1277.) "Undue prejudice," within the meaning of section 352, is " ' "evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis." ' " (Id. at pp. 1276-1277.)
None of the uncharged offenses was more inflammatory than the charged offense so as to prompt an emotional reaction against Moreno-Jaime by the jury. In the charged incident, Moreno-Jaime choked K.C. until she was gasping for breath, pushed her down onto the couch with his hands still around her neck, punched her on the nose with a closed fist, drawing blood, and forcibly vaginally penetrated her with his penis. Moreno-Jaime argues the evidence of the charged offense was weak (e.g., no forensic evidence, no photos of K.C.'s injuries). He also attacks K.C.'s credibility, pointing out she did not report the rape to law enforcement right away, and she initially gave a different account of the incident to her friend and her parents. The jury asked for a readback of K.C.'s testimony and evaluated her credibility. Based on our review of the record, we have no reason to believe the jury found Moreno-Jaime guilty of the forcible rape of K.C., without finding the prosecution proved each element of the rape beyond a reasonable doubt.
Moreno-Jaime argues the trial court could have excluded some details of the uncharged offenses to minimize the prejudicial impact on his case (e.g., his statement to H.S. that he gets angry when he gets drunk, the photos of the bruises on J.G.'s neck). None of the details he highlights was so inflammatory and unduly prejudicial so as to render his trial fundamentally unfair.
Section 1108 expressly allows the admission of evidence of uncharged sexual offenses to show a defendant's propensity to commit a charged sexual offense. Pursuant to section 1108, the trial court considered the pertinent factors to decide whether the evidence was inadmissible under section 352. Exercising its discretion, the court admitted the evidence. The court did not abuse its discretion, and we have no cause to disturb its evidentiary ruling.
II. Constitutionality of Admission of Evidence of Uncharged Offenses Under Section 1108
Moreno-Jaime contends section 1108 violates a defendant's constitutional due process and equal protection rights because it permits propensity evidence in cases where a sexual offense is charged, while propensity evidence is generally not admissible where other crimes are charged (other than domestic violence). (§ 1101, subd. (a).)
Moreno-Jaime acknowledges that in People v. Falsetta, supra, 21 Cal.4th 903, the California Supreme Court concluded section 1108 does not violate due process because it "preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value" under section 352, and it does not "improperly alter or reduce the prosecutor's burden of proof." (Falsetta, at pp. 907, 920.) The Falsetta Court further discussed with approval Court of Appeal caselaw rejecting a defendant's equal protection challenge to section 1108 and "concluding that the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests." (Falsetta, at p. 918, citing People v. Fitch (1997) 55 Cal.App.4th 172, 184.) Moreno-Jaime further acknowledges that in People v. Loy (2011) 52 Cal.4th 46, our Supreme Court declined to revisit the issue and reconsider the constitutionality of section 1108. (Loy, at pp. 60-61; see also People v. Merriman (2014) 60 Cal.4th 1, 46 ["We previously have upheld the constitutionality of . . . section 1108 against a similar challenge and find no persuasive reason to revisit our conclusion"].)
This court is bound by our high court's decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Moreno-Jaime asks us to depart from California Supreme Court precedent and apply Ninth Circuit case law (decided prior to the Supreme Court precedents cited above), discussing the admissibility of propensity evidence outside the context of section 1108 (or section 1109 regarding domestic violence cases). (Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, reversed on other grounds in Woodford v. Garceau (2003) 538 U.S. 202; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) This we may not do.
III. Admission of Rebuttal Evidence
A. Proceedings below
As set forth above, in rebuttal, the prosecution presented LAPD Detective Arellano's testimony that Moreno-Jaime told Arellano he had "hung out with [K.C.] a couple times" and might have "kissed her once," but he was never alone with her, and he never had a sexual relationship with her. The testimony was brief (less than three pages of the reporter's transcript).
Below, Moreno-Jaime objected to admission of the prosecution's rebuttal evidence on the ground it was not proper rebuttal because the prosecution knew about the issue—that K.C.'s friend Benitez initially told Lieutenant Lino she believed K.C. and Moreno-Jaime had a sexual relationship before the January 2018 incident—and the prosecution could have presented Detective Arellano's testimony about Moreno-Jaime's statements before the prosecution rested its case-in-chief. Defense counsel argued: "I don't believe it is rebuttal evidence. I believe that the testimony was already in evidence when the People rested because [Benitez] the roommate had already indicated when I asked her about having a sexual relationship, having sex with my client one time. So that evidence was already in and the People chose not to put on any other evidence. All I did was mention it again while I was asking questions of [Lieutenant Lino]. So I don't really think it is rebuttal testimony so I would object to it. I also don't think it's appropriate to bring a defendant's statement in under these circumstances."
In overruling the objection, the trial court stated: "I think it is proper rebuttal. I am going to allow it because I think in the People's case in chief that testimony was fleeting and relatively transitory, fairly innocuous, but it was something that was hammered home, I think, by the defense in the defense case [that Benitez initially told Lieutenant Lino she believed K.C. and Moreno-Jaime had a sexual relationship before the January 2018 incident]. So I think the People are entitled to rebut that evidence."
B. Moreno-Jaime forfeited this contention
On appeal, Moreno-Jaime contends the trial court erred in admitting Detective Arellano's testimony in rebuttal "to (1) impeach a defense witness's testimony [Lieutenant Lino], (2) concerning statements made by another witness [J. Benitez], (3) by way of a rebuttal witness [Detective Arellano], (4) who testifies about the out-of-court statements of a non-testifying defendant." Moreno-Jaime argues "the introduction of this impeachment testimony in rebuttal was improper because (1) any alleged out-of-court statements made by a non-testifying defendant cannot be used to impeach a non-expert defense witness; and, (2) Lieutenant Lino's testimony was limited to his recollection of statements made by another witness, [J.] Benitez, concerning the victim's relationship with appellant, which had nothing to do with the non-testifying appellant's alleged out-of-court statements." (Underlining omitted.)
Moreno-Jaime forfeited these contentions on appeal because he did not properly raise them below. A trial objection must "fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.)
Below, Moreno-Jaime objected to admission of the prosecution's rebuttal evidence on the ground it was not proper rebuttal because the prosecution knew about the issue and could have presented the evidence before the prosecution rested its case-in-chief. The trial court ruled on that specific objection. Defense counsel's statement at the end of his argument—"I also don't think it's appropriate to bring a defendant's statement in under these circumstances"—did not preserve for review the convoluted contentions Moreno-Jaime now raises, as quoted above. Moreno-Jaime did not put these contentions before the trial court for a ruling in objecting to the prosecution's rebuttal evidence. Thus, these contentions are forfeited on appeal.
Even if Moreno-Jaime had preserved his contentions for review, we would reject them because any error in admitting the rebuttal evidence was harmless. It is not reasonably probable Moreno-Jaime would have achieved a more favorable result—an acquittal on the forcible rape count—if the trial court had excluded the three pages of rebuttal testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.) K.C. testified she did not have a prior sexual relationship with Moreno-Jaime. Benitez testified that when she initially told Lieutenant Lino she believed K.C. had a prior sexual relationship with Moreno-Jaime, she might have confused Moreno-Jaime with another men's soccer player K.C. dated whose first name started with the same letter. It is not reasonably probable that absent evidence of Moreno-Jaime's statements that he did not have a sexual relationship with K.C., the jury would have found K.C. not credible (based on Benitez's initial statements to Lieutenant Lino) and acquitted Moreno-Jaime of forcible rape.
We reject Moreno-Jaime's contention that cumulative error requires reversal of his conviction. As explained above, there are not multiple errors here to cumulate.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J. We concur:
BENDIX, Acting P. J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------