Opinion
A161067
04-06-2022
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL LEE OWEN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR1802335)
Kline, J. [*]
Following a jury trial in this case involving two victims, defendant Gabriel Lee Owen was found guilty of two counts of forcible penetration by a foreign object, four counts of possession of a firearm by a felon, and one count each of forcible sodomy, misdemeanor sexual battery, and possession of ammunition by a felon. Defendant appealed, contending (1) the trial court erred when it admitted evidence of five instances of uncharged misconduct, which was not admissible under Evidence Code sections 1101, 1108, 1109, and/or section 352; (2) defense counsel's failure to object to certain inadmissible evidence and request an instruction limiting the uncharged misconduct evidence to the victim to whom that evidence pertained deprived him of the effective assistance of counsel; and (3) the cumulative prejudicial effect of the errors deprived him of a fair trial.
All further statutory references are to the Evidence Code unless otherwise indicated.
We filed an opinion affirming the judgment on December 17, 2021, and defendant petitioned for review by the California Supreme Court. On February 23, 2022, in response to defendant's request for consideration of an additional issue, that court granted review and transferred the matter to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 567 (Stats. 2021, ch. 731). That bill, which became effective on January 1, 2022, amended Penal Code section 1170 with respect to trial courts' discretion at sentencing. Having received supplemental briefs on the effect of these amendments, we now restate our discussion of the issues previously raised on appeal and additionally conclude that remand for resentencing is appropriate.
PROCEDURAL BACKGROUND
In an information filed on September 27, 2018, defendant was charged with forcible sodomy on Jane Doe 1 (Pen. Code, § 286, subd. (c)(2)(A)-count 1); forcible sexual penetration by a foreign object on Jane Doe 1 (Pen. Code, § 289, subd. (a)(1)(A)-count 2); forcible sexual penetration by a foreign object on Jane Doe 2 (Pen. Code, § 289, subd. (a)(1)(A)-count 3); possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)-counts 4-7); unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)-count 8); and misdemeanor sexual battery on Jane Doe 2 (Pen. Code, § 243.4, subd. (e)(1)- count 9.) The information alleged, as to counts 4 through 8, that defendant had a prior felony conviction.
After defendant waived his right to a jury trial on the prior felony conviction allegation and admitted the conviction, the case proceeded to a jury trial on the nine-count information. On October 31, 2019, the jury found defendant guilty as charged.
On September 25, 2020, the trial court sentenced defendant to 24 years 8 months in prison.
On September 29, 2020, defendant filed a notice of appeal.
FACTUAL BACKGROUND
Jane Doe 1's Testimony About Her Relationship with Defendant
Jane Doe 1 met defendant in 2012 at his property in Dinsmore and over the summer of 2012, she spent a week at a time visiting defendant there. She was 19 years old and defendant was 31. They initially had a sexual relationship only, but when she learned she was pregnant in October 2012, they began a relationship, although they never lived together
After their daughter was born in 2013, Jane Doe 1 moved with her daughter into her parents' house in Arcata. Two months after the baby was born, defendant started to visit and spend the night about once a week. During his visits, which continued for about a year and a half, they would engage consensual sexual activity.
Defendant did not become abusive with her until after their daughter was born, but while she was pregnant, Jane Doe 1 saw him being violent toward someone else. In January 2013, they were in a cabin and she saw defendant standing at the door arguing with a man who worked for him, who was on the porch. Defendant asked Jane Doe 1 to hand him his gun, which was on a table nearby. She froze because she was scared, and did not hand him the gun. Defendant then walked to the table, grabbed the gun, and started shooting out the front door. She was afraid defendant had killed someone, but later learned he had shot around the man.
Defendant first became violent with Jane Doe 1 in the fall or winter of 2013, when their daughter was around six months old. Jane Doe 1 was still living at her parents' house, and defendant had come over in the middle of the night. Jane Doe 1 was sitting in a rocking chair in her bedroom, breastfeeding her daughter. Defendant was intoxicated, and for about five minutes he attempted to force her to perform oral sex on him while she was still breast feeding her daughter. Until he was eventually too drunk to continue, he rubbed his erect penis on her face and also tried to force it into her mouth by shoving it on her mouth. But she would not open her mouth. She indicated that she did not want to engage in oral sex and told defendant to leave her alone, but she did not call for help because she did not want her parents to dislike him and she was embarrassed about the situation she was in. Nor did she go to the police because she was worried about what he would do. He had threatened her in the past, when she did not do what he wanted.
Defendant's threats to Jane Doe 1 included saying he would drown her in the toilet; throw her in the bay; and shoot her up with a lethal dose of drugs, which everyone would think was an overdose. He also said he was going to find their daughter a new mom, asking their daughter," 'Do you want me to find you a new mommy?'" Jane Doe 1 believed defendant was capable of carrying out these threats because he told her he had gotten away with killing people before. Defendant also told her almost daily that she was his property. He further told her that "he could have anyone raped and murdered for $5,000, and not to piss him off." He also said that "all you have to do to break a wom[a]n is rape her a few times. . . ." 'If she says "yes" nine times and "no" the tenth time, it doesn't matter.'" These statements scared Jane Doe 1.
Defendant had also previously engaged in nonsexual violence toward Jane Doe 1. He would grab her skin and pinch and twist it hard until it left bruises, which he did "[a]ll the time. Just seemed like he liked doing it for fun." He would also try to burn her with his cigarette when he was smoking, and then would laugh. She would move away when he did this, but his cigarette made contact and burned her a few times.
Defendant's later violence against Jane Doe 1 included grabbing her by the hair once while he was driving because she tried to take back her phone, which he had taken from her because he did not like her friends or family and did not like her talking to anyone. On another occasion, after she broke up with him and told him to take his paperwork out of her apartment or she would throw it away, he charged at her until she was pinned against the wall. Jane Doe 1 did not report these incidents to the police because she was scared and felt very controlled by him: "I was worried. Every time I didn't do what he wanted, he would get really angry. I was scared of not doing what he wanted."
Defendant tried to force his penis into Jane Doe 1's mouth a second time shortly before she tried to end the relationship, after she had moved to her own apartment. She was lying on her bed when defendant got on top of her, sat on her chest with a knee on each side of her body pinning her arms down, and unzipped his pants. When he took his penis out, she said," 'I don't want to do this.'" He responded," 'It's not up to you, '" and started rubbing his penis in her face and trying to shove it into her mouth. She was moving her head away and not opening her mouth. This lasted around 10 minutes, until defendant got off of her and left. Jane Doe 1 did not report the incident to law enforcement because she was afraid of defendant. Nor did she tell anyone else about it. Defendant was on probation at the time, and had told her that if he ever went to jail because of Jane Doe 1, he would kill her. She believed him.
Around the summer of 2015, a few months after Jane Doe 1 moved into her own apartment, she told defendant she did not want to be in a relationship with him anymore. Defendant responded that she "was his property and that he didn't release ownership of me and so we were still together." Jane Doe 1 wanted to end the relationship with defendant because he was abusive.
By November 2015, Jane Doe 1 still had not been able to end the relationship with defendant because "[h]e still didn't seem to understand that it was over even though I kept saying it was." One day in November, defendant called her and said he wanted to come over and see their daughter, and she agreed that he could do so. When he arrived, Jane Doe 1 took him to the back bedroom to see their daughter. Defendant pushed Jane Doe 1 down on the bed and got on top of her; she was lying on her side and he was straddling the middle of her body while facing her feet. He told their daughter to go play, but she would not leave the room.
With their two-year-old daughter standing next to the bed face to face with Jane Doe 1, defendant pulled down Jane Doe 1's pants and put his fingers in her vagina and anus. She told him to stop and get off of her, but he did not. Jane Doe 1 was scared and her daughter was crying. About 10 minutes later, defendant got off of Jane Doe 1, and she got up and pulled up her pants. Defendant then pushed her into the nearby bathroom. Her daughter tried to follow them inside, but defendant closed and locked the bathroom door. Her daughter started pounding on the door, crying, and saying "mama."
This act was charged as count 2 in the information.
Defendant bent Jane Doe 1 over the sink, pulled down her pants, unzipped his pants, and "started raping" her by putting his penis in her anus. She told him to stop, but he continued thrusting his penis in and out of her anus until he ejaculated. Defendant then left the bathroom and she heard the front door close. Jane Doe 1 pulled up her pants sat down on the bathroom floor. Her daughter came into the bathroom, and Jane Doe 1 held her and comforted her as she cried.
This act was charged as count 1 in the information.
After a few minutes, Jane Doe 1 got up and went to lock the front door, in an effort to keep defendant out. Even though defendant still had a key, it made her feel safer to lock the door. She had previously asked him to return the key, but he had refused. Jane Doe 1 did not consider reporting the rape to law enforcement because she was scared of defendant and was concerned about her and her daughter's safety if she did so. During the attack in the bathroom, Jane Doe 1's hand had brushed against a still-warm hair straightening iron, and she had contemplated burning defendant with it. But she was afraid she would make matters worse by angering him, based on his past threats and acts of violence. She was also worried about scaring her daughter. The last consensual sexual encounter Jane Doe 1 had with defendant was two to three months before the incident in the bathroom, just before she first tried to break up with him.
Jane Doe 1 was finally able to end her relationship with defendant in December 2015, shortly after the incident in the bathroom. In early 2016, Jane Doe 1 married another man. During 2017, Jane Doe 1's daughter, who was then four years old, would return from visits with defendant and tell Jane Doe 1 threatening things he had said about her and her husband. For example, he had told their daughter that he needed a gun for Jane Doe 1's husband and that he was going to feed him to the sharks. He also said that he was going to kill Jane Doe 1 if their daughter did not eat her dinner. When asked if she believed that he would carry out any of those threats, Jane Doe 1 answered in the affirmative. Because these threats worried Jane Doe 1, she reported them to her attorney, who said there were no additional family court orders they could seek because her daughter was too young.
On cross-examination, Jane Doe 1 testified that by the fall of 2015, she attempted to end the relationship with defendant, telling him she did not want to be in a relationship anymore and to return her apartment key. Defendant finally accepted that the relationship was over in December 2015. Initially during their relationship, the sex between her and defendant included consensual sexual intercourse, oral sex, and anal sex. When defense counsel asked if, when she and defendant engaged in consensual sex, she and defendant "ever engage[d] in rough sex or role playing," Jane Doe 1 responded that she did not know what he meant. Counsel asked if she ever asked defendant "to asphyxiate you or choke you during sex," and Jane Doe 1 responded, "No. I never asked, no." She had requested anal sex.
In March 2016, Jane Doe 1 contacted the Arcata police because she was distressed over defendant's failure to bring their daughter home after a visit at the agreed upon time, and she did not know their whereabouts. Jane Doe 1 learned that the police were unable to provide assistance because there were no custody or visitation orders in effect. As a result of that conversation, Jane Doe 1 hired an attorney who filed papers in court on her behalf. Jane Doe 1 told her attorney about defendant's nonsexual abuse of her and included that information in her declaration, which was filed with the family court. But she did not tell her attorney about the sexual assaults.
Eventually, Jane Doe 1's attorney and defendant's attorney worked out a stipulated custody and visitation order.
On redirect examination, Jane Doe 1 testified that she did not include the allegations of sexual assault in the paperwork she filed in family court because she was not ready to talk about it then, and feared what might happen if she disclosed those assaults. However, everything else to which she had just testified, related to his abusive and controlling behavior, was included in the declaration she signed.
Jane Doe 2's Testimony About Her Relationship with Defendant
Jane Doe 2 testified that she met defendant in August 2015, when he was a patron at the bar where she worked in Eureka. He initially seemed to be a quiet, shy person, unlike the typical bar customer. They also had mutual friends and saw each other at events. About a month after they met, Jane Doe 2 and defendant started dating. They were attracted to each other and had consensual intercourse. As far as she knew, their relationship was exclusive. At the beginning of the relationship, defendant did nothing that she considered improper or suspicious.
Three or four months into their relationship, Jane Doe 2 met defendant's daughter with Jane Doe 1, who was around three years old at the time. Defendant would pick his daughter up for visits on occasion, and they had a "pretty typical father/daughter relationship." He took good care of his daughter, and they were excited and happy to see each other. Jane Doe 2 eventually met Jane Doe 1 in April 2016, when defendant picked his daughter up from Jane Doe 1's apartment. She subsequently saw Jane Doe 1 approximately a dozen times, during custody exchanges. Their interactions were limited to exchanging "[s]mall pleasantries."
In April 2016, Jane Doe 1 initiated child custody proceedings against defendant, who asked Jane Doe 2 to sign a declaration under penalty of perjury on his behalf. She did so because she wanted to help him. The declaration stated that she had always seen defendant properly care for his daughter and that he was a stable and good father.
Over the three years of Jane Doe 2's relationship with defendant, they had consensual sexual intercourse often, and they also had consensual anal intercourse. In April 2016, Jane Doe 2 learned that she was pregnant, and their daughter was born in 2016. When Jane Doe 2 was 26 weeks into her pregnancy, she went into preterm labor and was put on bed rest at home. "Sexual activity was not supposed to happen." This was when defendant's first sexually assaultive act "that really scared" Jane Doe 2 took place.
Jane Doe 2 testified on cross-examination that she never asked defendant to choke her during sex, but said "there was light choking involved that I didn't reject."
Around November 2016, when she was six or seven months pregnant and on bed rest in Eureka, defendant called her from Dinsmore. He sounded upset and said he wanted her to be there. She said she did not want to drive to Dinsmore and did not want to be there. A party was going on there, which she wanted nothing to do with. He pleaded with her and said he needed her there, and so she went. When Jane Doe 2 arrived at defendant's house in Dinsmore, defendant seemed "to be under the influence of something." He was acting boisterous and aggressive, thinking he was funny and saying vulgar things. This prompted Jane Doe 2 to go to bed.
Defendant eventually followed Jane Doe 2 into bed and, as they snuggled in bed while both were naked, defendant made clear he wanted to have sex. She "told him that not only I couldn't, because I was on bed rest and I wasn't supposed to, I didn't want to." Defendant, who did not seem coherent, did not really respond. As she lay on her side, with her back to defendant, who was lying behind her, she became aware that he had inserted his erect penis into her vagina. Although she tried to move away, he was bigger than her and she "figured it was better to just lay there and not get hurt any worse."
After defendant finished having vaginal intercourse with Jane Doe 2, he started having anal intercourse with her, despite the fact that she protested, telling him that "I couldn't. I didn't want to. It doesn't feel good. It hurts." He did not respond to what she said, and the anal sex lasted a few minutes. She had never enjoyed having anal sex with defendant but, in the past, it had been "something that happened" and was consensual. The sexual assault lasted approximately 20 to 30 minutes in total.
Shortly after this incident, Jane Doe 2 went to the doctor because she was concerned not only about the act of having sex when she was on bed rest, but also about the risk of infection due to "the cross of vaginal and anal sex." The doctors found an infection and treated her with antibiotics.
Multiple times during Jane Doe 2's pregnancy, defendant took her keys and phone away, "making me unable to leave when I wanted." On one occasion, Jane Doe 2 did not feel the baby moving inside her and wanted to go to the doctor, but defendant would not give her the car keys. He ended up driving her to the doctor. On the drive, Jane Doe 2 became very emotional because she was scared about what could be going on with the baby. She wanted to get out of the car, but defendant locked the doors and would not let her get out. Defendant then said, "maybe we should just cut the baby out of you, you are clearly crazy and don't deserve to be a mom." This made her feel threatened.
During the three years Jane Doe 2 was with defendant, he also indirectly threatened her by saying "[t]hat if I didn't act a certain way or do a certain thing that there would be harm to friends or family." He told her at least once a day that "I was his. He owned me. He owned me. He owned all of me." She did not think of herself as defendant's property.
When asked on cross-examination whether she had ever submitted to the idea of defendant owning her, Jane Doe 2 testified that "earlier in the relationship I would jokingly say something like, oh, baby, meaning he is being funny but not agree to it."
Another incident of sexual assault occurred after their daughter was born, when they were living in Rio Dell, between early 2017 and 2018. The incident occurred after Jane Doe 2 picked their daughter up after work, brought her home, and began cleaning and cooking. Jane Doe 2 was at the kitchen counter cutting food on a cutting board and their daughter was in the living room when defendant approached Jane Doe 2 from behind and pressed himself against her. When he pulled her pants and underwear down to her ankles, she told him she was making dinner and did not want to have sex. Defendant then unzipped his pants and attempted to insert his penis into her vagina from behind. She tried "to shrug him off and push him away, telling him to stop, telling him to leave me alone. I am tired and exhausted." Defendant became angry and ended up zipping up his pants and walking into the living room. After pulling up her pants, Jane Doe 2 continued to cook dinner.
When asked how defendant interacted with their daughter, Jane Doe 2 responded, "Very well."
There were multiple occasions when defendant sexually assaulted Jane Doe 2 in their bedroom. On one occasion, which took place on May 6, 2018, approximately 9:00 p.m., and which she eventually reported to the police, she was breastfeeding her daughter in bed. Defendant came into the bedroom, got into bed on his side, and indicated that he wanted to have sex, but Jane Doe 2 indicated she did not want to do so. He then came around to her side of the bed and climbed in next to her. He was on the outer edge of the bed and their daughter was lying on the other side of Jane Doe 2. Defendant began "to grab and grope at" Jane Doe 2's breasts. She told him "[t]o leave me alone. No. Stop." Defendant laughed and reminded her that she was "his," and also said, that he owned her; "[i]t is his body." He then started touching her around the vaginal and anal areas with his fingers, and penetrated her anally with his fingers multiple times without her consent. Jane Doe 2, who was between defendant and her daughter on the bed, said to get off of her and tried to squirm away. But she had nowhere to go or move to, with "my child right there." Eventually, defendant got angry at her attempts to move away from him and left the room.
This act was charged as count 9 in the information.
This act was charged as count 3 in the information.
Jane Doe 2 did not consider reporting this incident to the police because defendant's "temper scared me. I felt like the only way to stay safe was just to try to control the situation as best I could." Defendant had never hit her, but she had seen him "[h]itting things, throwing things, extremely raised voice, violent threats" when he was angry. He also kept multiple firearms in their home; she did not know the exact number, but there were "duffel bags full." Eventually, defendant took his guns to a neighbor's house.
Circumstances Surrounding the Victims' Reporting of the Sexual Assaults to the Police
In May 2018, when their daughter was almost two years old, defendant told Jane Doe 2 that he was going to Arizona to sell his RV either for "money or possibly drugs"; the drugs in question were bricks of cocaine. After learning of defendant's plans, Jane Doe 2 became concerned about her daughter's safety, considering the people she assumed he was associated with. She also spoke to a friend who was familiar with the law, who told her that if defendant brought drugs into their home, even if it was without Jane Doe 2's knowledge or without her wanting it, "if something were to happen and the police showed up . . ., I could lose my daughter."
Jane Doe 2 therefore went to the Rio Dell police station on May 10, 2018, while defendant was in Arizona. She met with Officer Valk, and said that she was concerned about what defendant "would have with him" when he returned, and about her and her daughter's safety. At the end of their conversation, Jane Doe 2 told Valk that she was going to go home and pack her things, and in fact that is what she did. During that initial meeting with Valk, Jane Doe 2 did not report any other criminal activity on the part of defendant. On cross-examination, when asked whether her intent in going to the police was "to effectuate [defendant's] incarceration," Jane Doe 2 responded in the negative, testifying that her purpose was to "[p]rotect my child and myself."
After she left the police station, Jane Doe 2 called the same friend who had advised her to talk to the police, and her friend's "first question was if I told them everything." Jane Doe 2 told her friend that she had not told the police about the incidents she "felt were domestic violence and sexual assault." That same day, after she had talked to her friend the second time, Jane Doe 2 called the Rio Dell police station and talked to Valk again because she wanted to report defendant's domestic violence and sexual assaults. When asked why she did not initially tell Valk about the violence or sexual assaults, Jane Doe 2 said, "Honestly I am not sure. At the time my head was spinning. I had just a bit of a breakdown. I was terrified for [defendant's] return, what could happen to my daughter, what could happen to me. I think I was only thinking with half a brain at that time." She then went to the police station again and spoke with Rio Dell Police Chief Connor. She told him about defendant's emotional and mental abuse, the threats against her family and friends, and the sexual assaults.
After reporting defendant's conduct to the police, Jane Doe 2 sought a restraining order, a criminal protective order, and sole custody of her daughter. She obtained family law orders against defendant, giving her sole custody. Defendant had requested that, under the terms of the restraining order, he be allowed to have phone calls with his daughter. Because that seemed fair to Jane Doe 2 at the time, she agreed to his request. What she did not realize was that she would have to pay for his calls from the jail, and she had paid a couple of hundred dollars for the calls that had occurred since defendant was arrested in May 2018. If he could have a healthy conversation and relationship with their daughter, she did not want to deny that.
During the calls to their daughter, defendant would try to talk to Jane Doe 2, but she "would ask him to please talk to his daughter." Jane Doe 2 also took their daughter to the jail to visit defendant. She went the first time even though she was apprehensive, because their daughter wanted to see defendant for Christmas. Jane Doe 2 also wrote to defendant and sent him photographs of their daughter.
Jane Doe 2 also received about 50 to 75 letters from defendant while he was in jail, all addressed and written in his own handwriting. Around November 2018, she received a letter from him, but it was in someone else's handwriting. The letter stated: "Please just say Jane Doe 1 offered to pay you to get rid of me. We can get through this. Say you know it was wrong, but we had financial distress and needed the money. Please, my love. I am not going to make it. Thank you for all you have done. I know you still love me because you help me. I love you and the girls so much. I gave your number to my mom. One of the CO's helped me get her address off Google maps. I need you, my love, more than ever, and you know the girls need me so bad. Please just stop this. Please. I beg you. Please bring me home for the girls. I will not live through this. Forever in love with you. Please, my love, or just say you thought I was cheating. XOXO."
Jane Doe 2 testified that Jane Doe 1 never offered her money to make any charges against defendant. Before she spoke to the Rio Dell police, she had never had any contact with Jane Doe 1 about defendant's conduct and was not aware that defendant had engaged in sexually assaultive behavior toward Jane Doe 1. Nor did she make the allegations against defendant due to financial distress or because she thought he was cheating on her. Jane Doe 2 believed defendant wrote the letter in an attempt to influence her testimony, but it did not influence her testimony in any way. She had testified about what had happened. Since making her report to the police, she had spoken with Jane Doe 1, but not specifically about what Jane Doe 1 had gone through, or what she had gone through.
Rio Dell Police Officer Evie Valk testified that on May 10, 2018, Jane Doe 2 came to the police station to report that "[t]here was a drug transfer that she was concerned with." Jane Doe 2 "was a little timid, but she was concerned with what was going on in her house, and so she wanted to make the report . . . ." Later that same day, Jane Doe 2 made telephone contact with Valk. During that conversation, Jane Doe 2 "was very shaken and distraught about what she was telling me, but knew that she needed to make the report." Valk subsequently provided Jane Doe 2 with a victim/witness card, and obtained an emergency protective order against defendant from the court.
In May 2018, Jane Doe 1 learned from her family law attorney that defendant was in jail "and what it was about." At her attorney's suggestion, Jane Doe 1 went to the district attorney's office to get "a good cause form" to say she planned to withhold their daughter from defendant if he were to get out of jail. Jane Doe 1 obtained the form from the district attorney in charge of defendant's case, and then completed and filed the form.
Jane Doe 1 also told the district attorney to give her phone number to Jane Doe 2 "if she wanted to talk to me because I felt bad for her . . . ." The two women talked and Jane Doe 1 learned the general nature of the charges Jane Doe 2 was making, though they did not discuss the details. She had seen Jane Doe 2 before in the passenger seat of defendant's car when he was picking up their daughter, but had never talked to Jane Doe 2 about her own experiences with defendant. Jane Doe 1 "was devastated" because she "felt partially responsible for allowing [defendant] to be out to do that to someone else." She felt guilty that she had not previously reported defendant's violent and sexually assaultive behavior to the police because she felt that "maybe I could have prevented it from happening" to Jane Doe 2.
After talking to Jane Doe 2, Jane Doe 1 "decided to finally go to the police." Knowing that defendant was in jail also gave her the courage to come forward. Jane Doe 1 spoke with Detective Scown at the Arcata Police Department and told him about the attacks that took place in November 2015, in the bedroom and bathroom of her apartment. Before reporting it to Scown, she had only disclosed the sexual assault to her "best friend at the time." She never discussed the details of the sexual assaults with Jane Doe 2; nor did she work together with Jane Doe 2 or fabricate allegations against defendant in order to take his children away from him.
Arcata Police Detective Luke Scown testified that on May 14, 2018, Jane Doe 1 came into the police station to report a sexual assault that she said occurred approximately three years earlier. In describing Jane Doe 1's demeanor during their conversation, Scown said she was initially "calm and collected and factual," but "[a]s she got into more specifics, she would breakdown [sic] and start crying. She expressed regret over waiting so long to report the incident." He noticed that, as she spoke, Jane Doe 1 was in a "making your body as small as possible kind of posture," which he interpreted as indicating "someone who is afraid or reluctant to give information, concerned about what they are talking about. It is a position of self protection."
Firearm Evidence
Rio Dell Police Sergeant John Beauchaine testified that he searched the home of defendant's neighbor, who lived near defendant and Jane Doe 2, for firearms. Beauchaine seized a bag containing three rifles, a semiautomatic pistol, and almost 3, 000 rounds of ammunition, all of which belonged to defendant. The neighbor had pointed out to him the bag with the four firearms that defendant had brought to his house. Beauchaine also found marijuana and an assortment of knives in the bag.
Defendant's neighbor also testified that defendant had brought these items over to his house in a bag.
The parties entered into a stipulation that defendant "was previously convicted of a felony."
DISCUSSION
I. Admission of Five Instances of Defendant's Alleged Uncharged Misconduct
Defendant contends the trial court erred when it admitted evidence of five instances of alleged uncharged misconduct, which was not admissible under sections 1101, 1108, 1109, and/or 352.
A. Applicable Legal Principles
Defendant was charged with one count of sodomy against Jane Doe 1, "accomplished against the victim's will by means of force, violence duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Pen. Code, § 286, subd. (c)(2)(A).) He was also charged with two counts of sexual penetration by a foreign object-one count against each victim-"accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Pen. Code, § 289, subd. (a)(1)(a).) He was further charged with misdemeanor sexual battery of Jane Doe 2, accomplished by "touch[ing] an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse[.]" (Pen. Code, § 243.4, subd. (e)(1).)
The California Supreme Court has held "that a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. [Citation.]" (People v. Williams (1992) 4 Cal.4th 354, 360 (Williams), citing People v. Mayberry (1975) 15 Cal.3d 143, 155.)
Thus, in this case, whether the charged sexual offenses were accomplished by force or fear and whether defendant reasonably but mistakenly believed that Jane Doe 1 and Jane Doe 2 consented to the acts were extremely relevant to the jury's determination of whether defendant was guilty of those offenses. The trial court therefore admitted evidence of defendant's prior misconduct related to domestic violence and sexual abuse, to assist the jury in making that determination.
Section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (§ 1101, subds. (a)-(c), italics added.)
Section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." "In enacting section 1108, the Legislature recognized the' "serious and secretive nature of sex crimes and the often resulting credibility contest at trial,"' and intended in sex offense cases to relax the evidentiary restraints imposed by section 1101 'to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility.' [Citations.]" (People v. Hernandez (2011) 200 Cal.App.4th 953, 965.)
Section 1109, subdivision (a)(1) provides in relevant part: "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." The legislative history related to section 1109 reflects the Legislature's belief that" '[t]he propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases. . . .' (Assem. Com. Rep. on Public Safety Report (Jun. 25, 1996) pp. 3-4.)" (People v. Johnson (2000) 77 Cal.App.4th 410, 419.)
Before admitting prior misconduct evidence under section 1101, subdivision (b); 1108; or 1109, the trial court is required to determine, pursuant to section 352, whether the probative value of the evidence of the defendant's prior conduct is "substantially outweighed by the probability that its admission [would] necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)" 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805 (Jablonski).)
" '[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence[.]'" (Jablonski, supra, 37 Cal.4th at p. 805.)
B. Trial Court Background
Before any evidence was presented at trial, the prosecutor moved in limine for admission of evidence of defendant's prior uncharged acts of sexual abuse, domestic violence, and threats against Jane Doe 1 and Jane Doe 2, on the ground that the evidence was relevant under sections 1108, 1109, and 352 to proving that defendant committed the charged offenses.
Defendant in turn moved in limine "to exclude any and all propensity evidence," pursuant to sections 1101, subdivision (a) and 352.
At the hearing on the two in limine motions, the court found, as to both Jane Doe 1 and Jane Doe 2, that most of the prior threat evidence was "relevant to the issue of force or fear in the commission of the alleged sexual offenses," since such threats "might overcome resistance to unlawful sexual assault." The court further found that the prior domestic violence evidence was admissible as propensity evidence under section 1109 and that the prior sexual assault evidence was also admissible as propensity evidence under section 1108, as to both alleged victims.
The court, however, also excluded or limited certain evidence. It excluded evidence that defendant referred to Jane Doe 1 "as a methamphetamine whore" because it believed that was "simply an insult" and not "necessarily a threat." It also stated it would tentatively exclude the evidence of threats made in front of Jane Doe 1's daughter about Jane Doe 1 and her husband, unless it was shown that those threats were actually communicated to Jane Doe 1, which would make them relevant to the issue of force or fear. Finally, as to the evidence regarding Jane Doe 1 witnessing defendant shoot at an employee at his Dinsmore property, the court stated that it would "allow evidence of the shooting incident, but not the circumstances surrounding[, ] that it was in some nefarious fashion associated with a marijuana grow," because that would "suggest[] a prejudice which . . . outweighs its probative effect."
C. Legal Analysis
Defendant challenges the admission of evidence regarding five prior instances of alleged misconduct.
1. The Shooting Incident
Defendant first challenges admission of Jane Doe 1's testimony that he shot at an employee in her presence, and that it scared her. He argues that, even assuming evidence of the shooting Jane Doe 1 witnessed was admissible under subdivision (b) of section 1101 as to her, it was irrelevant and inadmissible as to Jane Doe 2, who was not even aware of the incident.
The Attorney General argues that defendant forfeited this argument because defense counsel failed to object on this ground in the trial court. The Attorney General is correct. Defense counsel argued only that the shooting evidence did not involve "an act that comes within either [sections] 1108 or 1109, and so-it is propensity evidence, and I don't think that it should come in. I think it should be excluded under [section] 352." Counsel never claimed that the evidence was problematic because it was irrelevant as to Jane Doe 2, and defendant therefore did not preserve this issue for appeal. (See People v. Demetrulias (2006) 39 Cal.4th 1, 22 (Demetrulias) ["To satisfy . . . section 353, subdivision (a), the objection or motion to strike must be both timely and specific as to its ground"].)
Defendant further argues, however, that the evidence should have been excluded pursuant to section 352, because "[t]he shooting occurred in early 2013," and "[n]evertheless, Jane Doe 1 stayed in the relationship with [defendant] until 2015." In addition, according to defendant, the shooting evidence had "little to do with the sex offenses, [but] tended to evoke an emotional response against [defendant] as an individual."
First, Jane Doe 1 testified that she later learned that defendant had shot around the employee, who was unharmed, which lessens the possible inflammatory nature of the shooting evidence, especially in comparison with the evidence surrounding the charged offenses of forcible sodomy and forcible penetration by a foreign object. (See, e.g., People v. Cordova (2015) 62 Cal.4th 104, 133-134 [court did not abuse its discretion under section 352 when it admitted prior sex offense evidence under section 1108 because, inter alia, "the uncharged crimes were not inflammatory compared to the charged crime," and "there was little prejudice" from admission of prior offense evidence].)
Second, we agree with the Attorney General that "[t]he shooting- which demonstrates [defendant's] ability to carry out his threats of harm against [Jane Doe 1]-explains why [she] feared leaving him and stayed with him for so long despite his violent and abusive behavior." The shooting evidence thus was extremely probative to support Jane Doe 1's testimony that she did not consent to the sexual assaults, but stayed with defendant and did not initially report his conduct to the police because of her fear of him, which resulted from his various acts of violence, including the shooting incident.
Notably, in his closing argument at trial, defense counsel repeatedly focused on the facts that the complaining witnesses' testimony regarding the charged offenses was uncorroborated, that defendant had a long sexual history with both of them, and that evidence of the nature of the alleged sexual assaults demonstrated that he actually and reasonably believed they consented to the acts comprising the charged offenses. (See Williams, supra, 4 Cal.4th at p. 360.) Thus, evidence showing that Jane Doe 1 had reason to fear defendant was extremely relevant to-and probative of-whether defendant was guilty of the charged offenses involving her.
We therefore conclude the trial court did not abuse its discretion when it determined that once it excluded evidence of the irrelevant fact that the shooting incident took place in the context of a "marijuana grow," the probative value of the challenged evidence outweighed any risk of undue prejudice, pursuant to section 352. (See Jablonski, supra, 37 Cal.4th at p. 805.)
2. The Threats Related by Jane Doe 1's Daughter
Defendant challenges admission of Jane Doe 1's testimony that in 2017, her then four-year-old daughter told her about threatening statements defendant had made about Jane Doe 1 and her husband during visits. These statements included defendant telling their daughter that he needed a gun for Jane Doe 1's husband, who he was going to feed to the sharks, and that he was going to kill Jane Doe 1 if their daughter did not eat her dinner. Jane Doe 1 believed he could carry out these threats and told her attorney about them.
Defense counsel had made a general in limine objection that all of the threat evidence was inadmissible propensity evidence, and the court had ruled that this particular evidence would be admitted only if it was shown at trial that the daughter had communicated these threats to Jane Doe 1. Subsequently, during Jane Doe 1's testimony, defense counsel objected to this evidence on hearsay grounds, after the prosecutor asked Jane Doe 1 to describe the threats her daughter had shared with her. The trial court overruled the objection and admonished the jury that the statements were not being admitted for the truth of the statements related to Jane Doe 1 by her daughter, but only for "how they affect [Jane Doe 1's] state of mind relative to fear."
Defendant now argues that this threat evidence had no relevance to whether Jane Doe 1 consented to the charged sexual offenses since the threats were made nearly two years after their sexual relationship had ended. According to defendant, this evidence was relevant only to defendant's "bad character," and should have been excluded pursuant to section 1101, subdivision (a). We disagree.
At trial, the defense treated Jane Doe 1's failure to initially report the sexual assaults to the police as a significant issue, relevant to the credibility of her claims of sexual assault, as reflected in defense counsel's lengthy discussion of this precise point during closing argument. For example, counsel told the jury that Jane Doe 1 had testified "that she did not report the assault because she was scared. She was scared that my client would retaliate against her in some fashion. And so that's why she didn't report. Again, as I indicated in my opening statement, you do have reason to doubt that." To show her lack of fear of retaliation, counsel observed that Jane Doe 1 had called the police in March 2016, when defendant was late in returning their daughter after a visit, but did not mention the sexual assaults. Instead, defense counsel noted, Jane Doe 1 hired an attorney who filed documents in court requesting temporary custody and visitation orders, in which Jane Doe 1 described defendant's physical, but not sexual, abuse. Counsel then stated, that there was "no evidence that [defendant] engaged in any type of unlawful retaliation or visited any violence upon [Jane Doe 1] as a result of . . . these allegations that she made when she filed for these temporary orders."
Considering the clear relevance of whether Jane Doe 1's continued delayed reporting of the sexual assaults was in fact based on fear of defendant, this evidence of the effect of the threats he allegedly made to their daughter on Jane Doe 1's state of mind when she heard them in 2017-after she had called the police and filed a request with the court for temporary custody in 2016-was admissible to show the reasonableness of her ongoing fear. Thus, defendant's claim that the evidence was admitted only to show his bad character is belied both by defense counsel's lengthy argument that Jane Doe 1's delayed reporting undermined her credibility and the court's instruction to the jury to consider this evidence solely for its affect on Jane Doe 1's "state of mind relative to fear." (See People v. Case (2018) 5 Cal.5th 1, 32 (Case).)
In Case, supra, 5 Cal.5th at page 32, our Supreme Court addressed a similar situation, in which a witness's testimony regarding defendant's prior violent altercations was relevant to the reasonableness of her fear of the defendant and the trial court admonished the jury to consider this evidence only for its effect on her state of mind, not for its truth. The court rejected defendant's "concern that the jury nonetheless considered the evidence 'as an indication of criminal propensity or disposition, '" given that "[t]he trial court took special pains to insure that the jury understood its task and we presume that jurors follow the court's instruction." (Ibid.)
In the present case as well, the evidence was relevant to Jane Doe 1's "state of mind relative to fear," as the court put it to the jury, because it could help to explain both why she continued to fear defendant and why she delayed reporting the charged offenses to police for so long. (Case, supra, 5 Cal.5th at p. 32; cf. People v. Stern (2003) 111 Cal.App.4th 283, 300 [§ 1101, subd. (c) "does not create a grounds for the admissibility of character evidence[, but] merely provides that [section 1101, subdivisions (a) and (b)] are inapplicable to the use of uncharged misconduct which is received on the issue of whether a witness should be believed"].)
Consequently, defendant's contention that admission of Jane Doe 1's testimony regarding the threatening remarks he made to her daughter violated section 1101, subdivision (a) cannot succeed.
3. The Threats Related by Jane Doe 2 to Chief Connor Regarding Her Friends and Family
At trial, when asked whether she told Chief Connor whether defendant had been threatening her, Jane Doe 2 responded, "Maybe not me personally, but there were threats made towards friends and family that made me concerned." She also testified that defendant had indirectly threatened her by saying "[t]hat if I didn't act a certain way or do a certain thing that there would be harm to friends or family." She testified that defendant made these threats before the charged offenses took place.
Defendant argues that Jane Doe 2's testimony that she told Chief Connor about these threats should have been excluded both because "it was arguably hearsay" and because there was no evidence that the threats had any significant bearing on the issue of consent to the charged offenses. Thus, according to defendant, the evidence should have been excluded pursuant to sections 1101 and 352.
As the Attorney General points out, defense counsel did not object to Jane Doe 2's testimony about reporting these threats to Chief Connor. Hence, this claim is forfeited. (See § 353, subd. (a); Demetrulias, supra, 39 Cal.4th at p. 22 ["An objection to evidence must generally be preserved by a specific objection at the time the evidence is introduced"].) In his reply brief, defendant cites People v. Anderson (2020) 9 Cal.5th 946, 963 for the proposition that "an appellate court may decide an otherwise forfeited claim where the trial court has made an error affecting 'an important issue of constitutional law or a substantial right.' [Citation.]" Defendant further asserts that this rule is particularly applicable in cases like the present one, where the error is "clear and obvious." (Ibid.) However, an appellate court's consideration of a forfeited claim is "in fact barred when the issue involves the admission (Evid. Code, § 353) or exclusion (Evid. Code, § 354) of evidence." (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) We will not consider defendant's questionable claim of error in the admission of this evidence.
4. Defendant's Comment to Jane Doe 2 About Cutting Out the Fetus
Jane Doe 2 testified that multiple times during her pregnancy, defendant took her keys and phone away, which kept her from leaving her home when she wanted to. As an example of this, she testified that one day when she became concerned about her baby's health and wanted to go to the doctor, defendant would not give her the car keys. He ultimately drove her to the doctor and during the drive, she became emotional due to worry about the baby. When she tried to get out of the car, defendant locked the doors and would not let her get out. He also said, "maybe we should just cut the baby out of you, you are clearly crazy and don't deserve to be a mom," which made her feel threatened.
The trial court admitted Jane Doe 2's testimony about the incident in the car over defense counsel's objection that it was inadmissible propensity evidence under section 1101. The court subsequently explained on the record and outside of the presence of the jury its reasons for admitting the testimony regarding defendant locking the doors and making the challenged comment, which it believed "could be characterized as a threat." It found that the evidence was admissible under section 1109, as a prior act of domestic violence. The court referred to Family Code section 6203, which defines abuse under the Domestic Violence Prevention Act (Fam. Code, § 6200), and "also references Family Code section 6320," which contains a "quite broad" definition of domestic violence, specifically including "disturbing not only the physical peace but emotional peace as well." The court therefore found that the challenged testimony came within that definition of domestic violence and was "relevant to the application of force or fear in the commission of sexual offenses." The court further noted that Family Code section 6203 includes sexual assault in its definition of domestic violence, such that, "[b]y definition any sexual assault type offense is one that involves domestic violence."
Defendant argues that his comment about cutting out the baby was not admissible as an uncharged act of domestic violence under section 1109, and that even if the evidence that defendant locked Jane Doe 2 in the car was admissible under section 1109, the court should have sanitized the evidence regarding this incident, pursuant to section 352, to omit this irrelevant "ugly remark."
First, in his briefing, defendant completely ignores the court's stated reasons for admitting this evidence, both as a prior act of domestic violence under section 1109, based on Family Code sections 6203 and 6320, and as a prior threat that was relevant to the application of force or fear in the commission of the charged sexual assault offenses, as set forth above. He focuses only on the definition of domestic violence in Penal Code section 13700, while ignoring the broader meaning of domestic violence set forth in the Family Code, which the court relied on. (See § 1109, subd. (d)(3) [incorporating the meaning of "domestic violence" set forth in Pen. Code, § 13700 and Fam. Code, § 6211, if the act "occurred no more than five years before the charged offense"]; see also People v. Ogle (2010) 185 Cal.App.4th 1138, 1144-1145 [rejecting defendant's argument that § 1109's definition of domestic violence "was not really intended to incorporate all forms of abuse that fall within the broader Family Code definition"].) Hence, defendant's claim that the challenged evidence was inadmissible under section 1109 cannot succeed.
Second, defendant claims that the court wrongly found that the comment about cutting out the baby could be considered a threat, and that it should have omitted the "inflammatory details" of this "ugly remark" pursuant to section 352. Assuming defendant did not forfeit his claim under section 352 due to his failure to object on this ground below, we first find that the court correctly found that defendant's statement was a threat-indeed Jane Doe 2 testified that she felt threatened by it-which was relevant to whether the subsequent alleged sexual assaults involved force or fear, or were instead consensual. (See Williams, supra, 4 Cal.4th at p. 360; § 1101, subd. (b).) Moreover, the comment was plainly much less inflammatory than the charged sexual assaults, and the court did not abuse its discretion when it overruled counsel's objection at trial. (See People v. Cordova, supra, 62 Cal.4th at p. 133-134.)
5. Officer Valk's Testimony About a "Drug Transfer"
Jane Doe 2 testified at trial that in May 2018, defendant told her that he was going to Arizona to sell his RV either for "money or possibly drugs," and that the drugs in question were bricks of cocaine. She further testified that she became concerned about the possibility of losing her daughter if defendant brought drugs into their home, as well as about harm coming to her and her daughter because of people defendant associated with. She therefore went to the police station, where she told Officer Valk about her concerns regarding what defendant "would have with him" when he returned from Arizona. Defense counsel did not object to this testimony.
In part II., post, we will address defendant's argument that defense counsel was ineffective for failing to object on section 352 grounds to this testimony of Jane Doe 2 regarding her reasons for initially going to the police.
Officer Valk later testified that Jane Doe 2 had initially come to the police station to report that "[t]here was a drug transfer that she was concerned with." Defense counsel objected on hearsay grounds, and the prosecutor responded, "at this point, it is not offered for the truth of the matter but just to explain how the events occurred." The court overruled the objection, stating that the testimony "is admitted not for the truth of the matter that there was some form of crime[, ] rather [for] the circumstances surrounding the reporting of that crime-or that allegation I should say."
On appeal, defendant contends Valk's statement was inadmissible hearsay because Valk's state of mind when she spoke with Jane Doe 2 during this first interview was irrelevant to any issue in dispute. Moreover, according to defendant, the evidence that he "was engaging in drug deals is perhaps the most damaging of the quantity of negative character evidence that came in against him to shore up the prosecution's case on the sexual abuse counts."
The Attorney General correctly points out that the trial court's explanation to the jury of the limited purpose for which it admitted the evidence shows that it was admitted under the so-called fresh complaint doctrine, under which "evidence of a victim's conduct following the alleged commission of a crime, including the circumstances under which he or she did (or did not) promptly report the crime, frequently will help place the incident in context, and may assist the jury in arriving at a more reliable determination as to whether the offense occurred. When introduced for that purpose, evidence of the circumstances surrounding a victim's reporting or disclosure of an alleged crime clearly falls within the bounds of 'relevant evidence,' i.e., evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' (Evid. Code, § 210.) [¶] Of course, only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule. [Citation.]" (People v. Brown (1994) 8 Cal.4th 746, 760 (Brown).) Thus, "so long as the evidence in question is admitted for the nonhearsay purpose of establishing the circumstances under which the victim reported the offense to others, such evidence ordinarily would be relevant under generally applicable rules of evidence, and therefore admissible, so long as its probative value outweighs its prejudicial effect. (Evid. Code, § 352.)" (Brown, at pp. 759- 760.)
As the trial court told the jury when it overruled defense counsel's hearsay objection, the challenged evidence in this case was not admitted for the truth of the matter, but only for the limited purpose of explaining "the circumstances surrounding the reporting" of the charged offenses. Valk's testimony was relevant to the jury's understanding of the complicated series of events that led Jane Doe 2 to the police station despite her fear of defendant, i.e., defendant's possible drug purchase, which made her fear losing custody of her daughter or harm to her and her daughter. This initial reporting then led to Jane Doe 2's reporting of the alleged sexual assaults a short time later, after again speaking to the friend who had urged her to go to the police to make the first report. Thus, this evidence "tended to shed light upon the reasons she ultimately did come to disclose the [charged offenses], as well as the reasons for her . . . delay in doing so, and tended to forestall any erroneous inferences that might have arisen in the absence of that evidence." (Brown, supra, 8 Cal.4th at p. 764.)
Although a trial court is also required to consider whether evidence that is relevant under the fresh complaint doctrine is unduly prejudicial under section 352 (Brown, supra, 8 Cal.4th at pp. 759-760), defense counsel in this case objected to this testimony solely on hearsay grounds, and neither asked for the language in question to be omitted nor suggested how it could be sanitized pursuant to section 352. (See Demetrulias, supra, 39 Cal.4th at p. 22; cf. People v. Holford (2012) 203 Cal.App.4th 155, 170 [where evidence is not admitted to show a defendant's propensity to commit charged offenses, "a section 352 objection grounded upon the existence of an evidentiary alternative . . . requires the objecting party to identify the evidentiary alternative with specificity"].)
Moreover, even assuming the court was required to expressly consider whether to sanitize this testimony pursuant to section 352 (see Brown, supra, 8 Cal.4th at pp. 759-760), and that it abused its discretion when it failed to do so, the error was plainly harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
First, as noted, the court did admonish the jury that the "drug transfer" testimony was not being admitted for its truth, but only for the limited purpose of showing "the circumstances surrounding the reporting" of the charged offenses. Second, considering the abundance of relevant, probative evidence properly admitted at trial, including evidence of defendant's propensity to commit domestic violence and sexual assault (see §§ 1108, 1109), which directly supported the jury's finding of guilt of the much more inflammatory charged sexual offenses, we conclude it is not reasonably probable that the result would have been different had the challenged language been excluded. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
In his briefing, the Attorney General lists "the vast majority of [the] prior bad acts" evidence against both Jane Doe 1 and Jane Doe 2 that was admitted at trial and that defendant has not challenged on appeal, including numerous acts of sexual abuse, violence, and/or threats against both women, all of which supported the jury's determination that defendant committed the charged offenses.
In his reply brief, defendant cites People v. Castaneda (1997) 55 Cal.App.4th 1067, in support of his claim that "[t]he evidence that [defendant] was engaging in drug deals is perhaps the most damaging of the quantity of negative character evidence that came in against him at trial." Castaneda, however, is not in any way analogous to the present case. In Castaneda, the defendant was charged with possession of heroin, but a police witness's testimony implied that he fit the "profile of the typical heroin dealer" in the area, which "invited [the jury] to infer that Castaneda was actually guilty of a crime even greater than charged, that of selling heroin. An inappropriate and dangerous implication of this evidence was: Do not let this man free; he may have done more than possess heroin-he may be a heroin dealer." (Id. at p. 1072.) In Castaneda, the challenged testimony implying the defendant's guilt of the sale of heroin was clearly prejudicial, given its inevitable impact on the jury's resolution of the similar but lesser charged offense, possession of heroin. Unlike in Castaneda, the brief testimony about drugs in this case did not purport to show that defendant was necessarily guilty of lesser, related charged offenses. (Cf. Brown, supra, 8 Cal.4th at p. 763 [if details of the victim's extrajudicial complaint regarding sexual assault "are admitted into evidence, even with a limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault"], italics added.) Moreover, as discussed, nearly all of the other evidence properly admitted at trial was directly related to whether defendant was guilty of the charged offenses. Valk's brief testimony, which merely explained what prompted Jane Doe 2 to go to the police after years of abuse, could not have had the same kind of prejudicial effect on the jury as occurred in Castaneda.
II. Alleged Ineffective Assistance of Counsel
Defendant contends defense counsel's failure to object to Jane Doe 2's testimony about going to the police station because of defendant's possible drug-related activity and his failure to request an instruction "limiting the threats evidence to the complainant to which it applied" deprived him of the effective assistance of counsel.
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
In the present case, we need not determine whether counsel's representation was in fact deficient because, as we shall explain, we conclude defendant was not prejudiced by any of counsel's alleged failings. (See Strickland, supra, 466 U.S. at p. 697.)
A. Failure to Object to Jane Doe 2's Drug-Related Testimony
First, as to Jane Doe 2's testimony that she went to the police station because of her fears based on defendant's comment that he might trade his RV for drugs on his trip to Arizona, as previously discussed with respect to Officer Valk's testimony (see pt. I.C.5., ante), this evidence was relevant to explain how Jane Doe 2 eventually came to report defendant's sexual assaults to the police. (See Brown, supra, 8 Cal.4th at p. 760.)
Moreover, assuming counsel should have requested that the court sanitize this testimony pursuant to section 352 to omit any reference to drugs, we do not agree with defendant's claim that he was prejudiced by counsel's failure to do so. As with Valk's related testimony, considering the overwhelming amount of properly admitted evidence-including evidence of defendant's propensity to commit domestic violence and sexual assault (see §§ 1108, 1109)-which was directly relevant to proving the much more inflammatory charged offenses, defendant has not shown that there is a reasonable probability that, but for counsel's failure to request that this testimony be sanitized, the result of the trial would have been different. (Strickland, supra, 466 U.S. at p. 694; compare People v. Castaneda, supra, 55 Cal.App.4th at p. 1072 [police officer's testimony implying that defendant was guilty of sale of heroin was clearly prejudicial, considering that charged offense was possession of heroin].)
B. Failure to Request a Limiting Instruction Regarding Threats Evidence
Second, as to defense counsel's failure to request an instruction limiting each complaining witness's threats testimony to the threats communicated to that witness, most of the evidence concerning defendant's threats was admitted as prior acts of domestic violence under section 1109. The purpose of evidence admitted under that section is to show a defendant's propensity to commit domestic violence, to dominate and subdue intimate partners in a romantic relationship generally, and such evidence need not involve acts against the alleged victim in the current criminal case. (See, e.g., People v. Merchant (2019) 40 Cal.App.5th 1179, 1193 [evidence of defendant's prior acts of domestic violence against a prior girlfriend, which "shared broad similarities with the charged conduct" against his current girlfriend, "demonstrated [defendant's] pattern of control in romantic relationships"].)
As to the shooting incident, which defendant includes in his claim related to the threats evidence, the lack of a limiting instruction was harmless since it would have been obvious to the jury that Jane Doe 2 was not aware of the shooting. Moreover, the jury also heard a plethora of evidence that was relevant to the charged offenses involving Jane Doe 2, either evidence that directly involved her or that was properly admitted propensity evidence. (See §§ 1108, 1109; see also fn. 9, ante.)
In addition, with respect to the threats evidence generally, the trial court instructed the jury to "[c]onsider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded" (CALCRIM No. 358) and that "[t]he defendant may not be convicted of any crime based on his out-of-court statements alone (CALCRIM No. 359). Finally, defendant's letter from jail to Jane Doe 2 asking her to say that she had falsely reported that he sexually assaulted her, either because Jane Doe 1 had offered to pay her to do so or because he had cheated on her, provided evidence of his consciousness of guilt. (See CALCRIM No. 371 ["If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt"].)
For all of these reasons, it is not reasonably probable that, but for counsel's failure to request limiting instructions as to any threats that were not properly admitted as propensity evidence, the result of the trial would have been different. (See Strickland, supra, 466 U.S. at p. 694.)
III. Alleged Cumulative Error
Defendant contends the cumulative prejudicial effect of the errors at trial deprived him of a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 844.) Considering our findings that the vast majority of the alleged errors were not in fact errors and/or were forfeited, and that the remaining arguable errors, if any, were not prejudicial, defendant has not demonstrated that the alleged errors, whether alone or in combination, prejudiced him. Accordingly, there is no ground for reversal based on cumulative error.
IV. Senate Bill No. 567
Defendant's 24-year, eight-month sentence included consecutive eight-year aggravated terms for the count of forcible sodomy and the two counts of forcible sexual penetration by foreign object. At the time defendant was sentenced, section 1170, subdivision (b) gave the trial court broad discretion to decide which of the three terms specified for an offense would best serve the interests of justice. (See § 1170, subd. (b), as amended by Stats. 2020, ch. 29, § 14.)
Effective January 1, 2022, Senate Bill No. 567 amended section 1170, subdivision (b) in a number of respects, one of which was to make the middle term of imprisonment the presumptive sentence. (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3.) Under the amended statute, "[a] trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2).)'" (People v. Flores (2022) 75 Cal.App.5th 495, 500, quoting § 1170, subd. (b)(3).)
The parties agree that the Senate Bill No. 567 amendments apply retroactively to this case as "an ameliorative change in the law applicable to all nonfinal convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)" (People v. Flores (2022) 73 Cal.App.5th 1032, 1038.)Defendant maintains the amendments require a remand to allow the trial court to resentence him under the new parameters; the Attorney General disagrees, arguing any error is harmless.
" 'For the purpose of determining the retroactive application of an amendment to a criminal statute, the finality of a judgment is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court.' ([People v. Lopez (2019) 42 Cal.App.5th 337, ] 341- 342, citing People v. Vieira (2005) 35 Cal.4th 264, 305-306.)" (People v. Flores, supra, 73 Cal.App.5th at p. 1039.)
In imposing the upper terms, the trial court relied upon two aggravating factors related to the offenses (the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421, subd. (a)(1)) and defendant took advantage of a position of trust or confidence (rule 4.421, subd. (a)(11)), as well as one factor relating to the defendant (his conduct indicates a serious danger to society (rule 4.421, subd. (b)(1)) and the court's conclusion that defendant lacked any "recognition of the offense." According to the Attorney General, we can conclude the jury would have found beyond a reasonable doubt any of the factors relating to the offense the trial court relied upon, because the jury's verdict convicting defendant of all the charged offenses shows it unequivocally believed the victims' versions of the events and their accounts, and the prosecution's case fully supported the aggravating factors pertaining to the offenses cited in the probation report and district attorney's sentencing letter to the court and summarized by the court.
Further references to rules will be to the California Rules of Court.
The Attorney General views the situation as akin to error under Cunningham v. California (2007) 549 U.S. 270, which held a prior version of section 1170, subdivision (b) unconstitutional because it allowed a sentencing court, rather than the jury, to find the facts that exposed a defendant to an elevated sentence. Cunningham error-denial of the right to a jury trial on aggravating circumstances-was held to be subject to harmless error view under Chapman v. California (1967) 386 U.S. 18. (People v. Sandoval (2007) 41 Cal.4th 825, 838-839.) In that context," '[i]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury,' the error is harmless." (People v. Flores, supra, 75 Cal.App.5th at p. 500, quoting Sandoval, at p. 839.)
The issue in the present case is not precisely the same as with Cunningham error. In the Cunningham situation, the trial court has properly exercised its discretion in determining the sentence and the question is whether the facts underlying its decision were determined according to the required standard. The Senate Bill No. 567 amendments add an additional component, changing the framework within which the trial court exercises its discretion by specifying a legislatively determined presumptive sentence.
Even if we could conclude the jury would have found the aggravating circumstances the trial court relied upon beyond a reasonable doubt, we cannot be confident the trial court would have exercised its discretion in the same way if it had taken the statutory presumption in favor of the middle term. Although it ultimately found the aggravating factors predominated, and identified only a single mitigating factor, the trial court did not agree with all the aggravating factors recommended by the probation report and the district attorney. It declined to find the victims particularly vulnerable (rule 4.421, subd. (a)(3)), and regarding factors pertaining to the defendant, declined to find his prior convictions numerous or of increasing seriousness (rule 4.421, subd. (b)(2)). Most significant, in our view, the trial court stated, before addressing the aggravating factors, "[a]s I indicated, I think, the other day, I was wobbling on whether these should be middle term or aggravated term offenses." Given this indication of openness to consideration of middle term sentences even without a statutory presumption favoring the middle term, we agree with defendant that a remand is appropriate." 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Gutierrez held a court that imposed sentence consistent with a presumption in favor of a harsh sentence must be given the opportunity to reconsider its decision when the law changed to eliminate the presumption "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Ibid.) The converse is similarly true here: Introduction of a presumption that did not exist at the time of sentencing changes the information relevant to the court's exercise of discretion. Since we cannot say the record clearly indicates the trial court would have imposed the aggravated terms if it had been aware there was a statutory presumption in favor of middle term sentences, remand is the appropriate remedy. We express no view as to how the trial court should exercise its discretion.
Senate Bill No. 567 also creates a presumption in favor of a lower term sentence where certain circumstances were "contributing factor[s] in the commission of the offense," "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice." (§ 1170, subd. (b)(6)(A).) Defendant argues he should be afforded an opportunity to show one of the specified circumstances-"[t]he person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence"-as he had no incentive to do so under the law in effect when he was sentenced. We need not address this point except to say that the parties on remand will have the opportunity to urge consideration of any circumstances relevant under the newly amended section 1170.
DISPOSITION
The matter is remanded for resentencing in light of Senate Bill No. 567. In all other respects, the judgment is affirmed.
We concur: Stewart, Acting P.J., Miller, J.
[*] Assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.