Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Ct. No. CRL000993, Carol K. Ash, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Henry Leonard Perez, Jr., challenges his conviction for rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)). He contends the trial court erred prejudicially when it admitted evidence of prior acts pursuant to Evidence Code sections 1101 and 1108. Perez also claims the trial court erred prejudicially when it responded to juror questions. We reject his contentions and affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Twenty-year-old J.M. was Perez’s stepdaughter when Perez was married to J.M.’s mother. J.M. had known Perez since she was in the sixth grade. J.M. did not live with the couple during their marriage; she resided with her grandmother. After Perez and J.M.’s mother divorced, J.M. lived with Perez for about three months in 2008.
On July 21, 2009, J.M. was living in Modesto. She drove to Los Banos to attend a party located about two blocks from Perez’s house. J.M. began drinking immediately upon arriving at the party. She drank at least four beers and two shots of tequila before she stopped counting her drinks.
J.M. had been in the habit of attending one fraternity party a month while at college, where there was drinking. During the short time she lived with Perez, she would give him money to buy alcohol for her, which he did.
J.M.’s friend and classmate, Jennifer, arrived at the party around 7:30 p.m. J.M. was intoxicated and had a beer in her hand. Jennifer and J.M. left the party and walked to Perez’s house. Perez was not there, but arrived about five minutes after J.M. called him to unlock the residence.
J.M. showed Jennifer around the inside of the house then both women went into the backyard. Jennifer described J.M. as a “little unsteady on her feet.” J.M.’s condition seemed to worsen, and she headed to the bathroom to throw up; she had to hold on to objects as she walked. Jennifer helped her walk back outside.
While Jennifer was at the house with J.M., Perez walked to the party house two times and retrieved both women’s cars. Jennifer left around 9:00 p.m. to visit another friend. When she left, J.M. was “kind of in and out of it” and was on a couch in the backyard; Perez was home. J.M. remembered Perez telling her she was “really drunk.”
C.M., J.M.’s younger sister, texted Perez and asked for a ride home. Perez did not respond immediately. When he did respond, he stated he was busy with something, but would be right there. It took Perez a while to arrive and pick up C.M.
When Perez picked up C.M., he told her J.M. was “so messed up that she couldn’t even lift her head, and so I made myself a bed on the floor.” He claimed he was asleep on the floor and J.M. was asleep in his bed when C.M. sent her text.
J.M. woke up around 1:15 a.m.; she was in Perez’s bed and he was on the floor. J.M. went to the bathroom to throw up. She felt “a tremendous amount” of vaginal pain as she walked to the bathroom. She recognized the pain as being from vaginal intercourse. While in the bathroom, J.M. saw that her clothes were in disarray.
J.M. called a friend, Jazmin, and stated, “Please stay on the phone until I get out of this house, and then I’ll explain to you what happened.” J.M. asked Perez for her car keys, saying her phone was dying and she needed the charger that was in the car. Perez gave J.M. her keys and followed her outside to the car. J.M. slammed the car door shut and drove to her grandmother’s house.
J.M. stayed at her grandmother’s house long enough to charge her phone and pick up some laundry. She then drove to Jazmin’s house. The two talked for a short time. Jazmin woke J.M. the next morning saying she had to go to work, but that J.M. was welcome to remain at her apartment.
J.M. instead decided to go home, where she went back to sleep. When she awoke, she had a hangover. She went to a hospital in Modesto and asked that a “rape kit” be performed. The hospital told her she had to go back to Los Banos and contact the police department in Los Banos.
On July 22, 2009, J.M. met with Los Banos Police Detective Ivan Mendez at his office and told him what had occurred. After taking her statement, Mendez arranged for J.M. to make a pretextual call to Perez. During the call, Perez admitted having intercourse with J.M. At one point in the call J.M. stated, “I was fucked up … I couldn’t even walk.” Perez responded, “I know … I know that.” Perez told J.M. he would give her money for a morning after pill and asked, “You ain’t gonna tell anybody are you?”
The following morning Perez was arrested. He was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and made a recorded statement. During his interview, Perez admitted that J.M. was “pretty intoxicated” and that he had intercourse with her. The intercourse did not last long, maybe three to five minutes.
Perez stated J.M. did not say anything during or after intercourse. He claimed J.M. was “intoxicated” but “coherent enough, ” and it “wasn’t like she was just laying there and I had sex with her.” When asked whether J.M. wanted to engage in intercourse with him, Perez responded, “Probably not. I wouldn’t think so. I imagine she wouldn’t want to do it sober cause you know.”
On August 10, 2009, Perez was charged with one count of rape of an intoxicated person. Trial commenced on February 2, 2010.
At trial, Perez testified that he and J.M. had been engaged in conversation when he “ended up kissing her” “on the mouth.” After a pause, the two kissed again and it “kind of just escalated from there.” Perez testified that J.M. was “coherent” and assisted with the removal of her clothing by arching her back and lifting her hips.
The jury eventually found Perez guilty as charged. The trial court sentenced Perez to six years in prison.
DISCUSSION
Perez argues his conviction must be reversed for two reasons. First, he contends the trial court erred when it admitted evidence of his conduct with C.M., J.M.’s sister, pursuant to sections 1101 and 1108. Second, he contends the trial court erred when it failed to answer questions from the jury adequately.
I. Prior Acts Evidence
Factual summary
The prosecution moved to admit evidence of Perez’s conduct with C.M. Perez objected to the evidence because the conduct occurred five years prior to the incident with J.M. and it was not reported to law enforcement until two months after the incident with J.M. Also, the conduct with C.M. did not involve any criminal activity. Finally, defense counsel argued any probative value was outweighed by its prejudicial effect.
The prosecution countered that the conduct with C.M. was “part of a fabric” demonstrating “almost an obsession” with C.M. and J.M. The prosecutor claimed that Perez monitored the girls’ activities “obsessively” and “intruded into their lives.” According to the prosecutor, Perez tattooed the names of J.M. and C.M. on his arms, replicated their bedrooms in his house, and wrote a letter to C.M. from jail talking about their “enduring relationship.”
The trial court ruled that evidence of Perez’s conduct with C.M. was probative and the probative value outweighed the prejudicial effect. The evidence of the tattoos, the letter, and replication of the bedrooms was excluded.
At trial, 17-year-old C.M. testified she was seven when Perez married her mother. The marriage between Perez and her mother had ended three or four years prior to trial. C.M. testified that when Perez and her mother were married, Perez would have to wake her up for school because her mother left early for work. Perez was in the habit of kissing her on the forehead or cheek to wake her up; once he kissed her on the lips. C.M. reported the kiss on the lips to her mother, who called Perez at work. Perez said he was sorry and did not mean it. C.M. also testified that on several occasions, when trying to wake her up, Perez grabbed her index finger, wrapped his finger around hers, and moved his finger up and down.
During the period that Perez was married to C.M.’s mother, Perez took an active role in C.M.’s life. Perez drove her to and from school activities, attended her games, and drove her to friends’ houses. C.M. wanted Perez to remain in her life after the divorce because he was acting as her father.
Perez testified that he would wake up C.M. by kissing her on the forehead or cheek. He acknowledged that he had once kissed her on the lips, but stated this was accidental as she had turned her head when he was leaning down to kiss her. The kiss was not sexual in any way and happened just once. The grabbing of C.M.’s finger was just to get her to wake up; he had “no intent of massaging.” During his marriage to C.M.’s mother, he had a good relationship with C.M. He was involved in C.M.’s school and extracurricular activities.
In closing argument, the prosecutor argued that Perez’s habit of kissing C.M. and rubbing her finger was what “Predators do” and “not what dads do.”
Analysis
Evidence that a person has a propensity or disposition to commit criminal acts generally is inadmissible and is excluded because of its highly prejudicial nature. (§ 1101; People v. Karis (1988) 46 Cal.3d 612, 636.) Section 1108 provides an exception to section 1101 and permits the jury in sex offense cases to consider evidence of prior charged or uncharged sex offenses for any relevant purpose. (People v. Falsetta (1999) 21 Cal.4th 903, 911-912 (Falsetta); People v. James (2000) 81 Cal.App.4th 1343, 1353, fn. 7.) Section 1108, subdivision (a) states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense … is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
Section 1108 therefore permits the trier of fact to consider a defendant’s prior uncharged sex offenses as propensity evidence. (Falsetta, supra, 21 Cal.4th at p. 911; People v. Pierce (2002) 104 Cal.App.4th 893, 897.) In People v. Harris (1998) 60 Cal.App.4th 727, the court set out factors to be weighed in considering whether to exclude section 1108 evidence under section 352: the inflammatory nature of the evidence, the probability of confusion, remoteness, consumption of time, and the probative value of the evidence. (Harris, at pp. 737-741.)
Perez argues that several of these criteria demonstrate it was error to admit the evidence. Specifically, he contends the uncharged conduct was (1) not criminal in nature and did not constitute a sexual offense, (2) not similar to the conduct involved in the current charges, (3) too remote in time to be probative of whether he had a propensity to commit the charged acts, and (4) the prejudicial effect outweighed any probative value. He also claims the evidence had a substantial prejudicial impact on the outcome of the trial of the current offense.
Here, there was a five-year gap between the conduct with C.M. and the conduct with J.M. While it is true that “a substantial gap between the prior offenses and the charged offenses means that it is less likely that the defendant had the propensity to commit the charged offenses[, ] … significant similarities between the prior and the charged offenses may ‘balance[] out the remoteness.’ [Citation.] Put differently, if the prior offenses are very similar in nature to the charged offenses, the prior offenses have greater probative value in proving propensity to commit the charged offenses.” (People v. Branch (2001) 91 Cal.App.4th 274, 285.)
In this case, however, the conduct with C.M. not only was dissimilar, it is doubtful it qualifies as a criminal act or a sexual offense. At a minimum, in order to be admissible under section 1108, the uncharged conduct must qualify as a sexual offense as defined in section 1108, subdivision (d). (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)
Nonetheless, any error on the trial court’s part regarding admission of the uncharged conduct does not require reversal. (§§ 353, subd. (b) & 354; Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Richardson (2008) 43 Cal.4th 959, 1001.) The jury was instructed that Perez’s conduct with C.M.—kissing a stepdaughter on the forehead or cheek and caressing her hand—could be considered by the jury only if the prosecution had proved by a preponderance of the evidence that it constituted the crime of annoying or molesting a child under the age of 18 years. A reasonable jury might have determined that the prosecution failed to prove any uncharged crime had been committed. C.M. continued to maintain a close father-daughter relationship with Perez for several years after his divorce from her mother, apparently with her mother’s knowledge, and Perez’s conduct with C.M. was never reported to law enforcement until two months after the incident with J.M. The jury also was instructed that even if it found Perez had committed an uncharged sexual offense, it was not required to conclude that Perez was inclined to commit the charged offense.
Additionally, as Perez acknowledges, the key issue was J.M.’s consent and the effect of her intoxication on her ability to consent. Perez admitted in his statements to police that he had sexual intercourse with J.M. Perez admitted that J.M. was stumbling, belligerent, threw up four times, and was “beyond gone” when she came to his house that evening. He admitted J.M. probably did not want to have sex with him and would not have engaged in sexual intercourse with him if she had been sober. In light of these admissions, the uncharged crimes evidence, even if admitted erroneously, was not prejudicial. (Richardson, supra, 43 Cal.4th at p. 1001.)
II. Juror Question Response
Perez next contends the trial court erred in responding to juror questions by simply referring the jury to the language of the instructions, instead of further explaining or clarifying the instructions.
Factual summary
The trial court instructed the jury with CALCRIM No. 1002, which lists four elements of the offense of rape of an intoxicated person, defines the term “prevented from resisting, ” and in the last paragraph sets forth that a defendant is not guilty if he actually and reasonably believed the woman was capable of consenting to sexual intercourse, even if that belief was wrong.
After the jury commenced deliberations, the jurors sent a note to the trial court that they were “at an impasse. We have reviewed everything available to us and can’t agree on a verdict.” The jury was brought in and the foreperson stated that a vote had been taken, with the jury voting 8 to 4. The foreperson did not see how further deliberations would help unless there was additional evidence presented. The trial court stated that no additional evidence could be presented. The trial court directed the jurors to continue to deliberate and attempt to reach a verdict.
The foreperson then indicated that the jurors were “having some struggle” with CALCRIM No. 1002 because “the four items and then that last paragraph, because they don’t seem linked or they could be in conflict with each other.” The jury foreperson stated the jury wanted a clarification of what “resisting could be” because the instruction was vague on that point. The foreperson also stated the jury was having trouble correlating the last paragraph of the instruction with the rest of the instruction.
The trial court sent the jury to the jury room and discussed the jury’s questions with counsel. The trial court and counsel met informally in chambers. Back on the record, the trial court stated it would instruct the jury with CALJIC No. 1.23.2, which might give the jury additional guidance regarding the term “prevented from resisting.” The prosecution indicated it was requesting the instruction and the defense counsel objected. The jury was called in, the instruction was read, and a written copy was given to the jury.
Later, the jury sent a note stating, “If we, the jury, agree the defendant is guilty of item 1 through 4 under the definition of Rape of Intoxicated Woman or Spouse [b]ut we also agree that ‘he actually and reasonably believed that the woman was capable of consenting to sexual intercourse, ’ as is stated at the bottom of page 8, how would we rule[?]” The trial court discussed the note with counsel and indicated it intended merely to reread the instruction. Defense counsel started to say, “if you believe both then you have to --” The trial court interrupted to state it could not instruct on a verdict and could only reread the instruction.
The jury was called in and the trial court stated, “by law I’m constrained.” The foreperson stated that rereading the instruction was not going to help. The foreperson went on to state, “The way we read [CALCRIM No. 1002] is that one section says to prove that the defendant is guilty you have to meet these four, and then the other section says that the defendant is not guilty for a completely different reason.” The trial court responded, “Correct.” The foreperson then started to ask, “if we find both --” The trial court interrupted with “It tells you. That’s all.” Another juror chimed in that they were having trouble understanding and correlating the language of CALCRIM No. 1002. The trial court responded with the comment that it was a standard instruction and the court could not provide any further help or detail.
Analysis
A trial court has a mandatory duty to clear up any instructional confusion expressed by a jury. This means the trial court has a primary duty to help the jury understand the legal principles it is asked to apply, but it does not mean the trial court always must elaborate on the standard instructions. (Pen. Code, § 1138; People v. Yarbrough (2008) 169 Cal.App.4th 303, 316.)
Perez argues the jury was confused because it believed he had the burden to prove himself not guilty and that failure to respond to the jury’s questions adequately left the jury with an erroneous understanding of the burden of proof. We do not view the jury’s questions or the foreperson’s comments as indicating a shifting of the burden of proof to the defense.
The jury obviously read the instruction; it asked questions regarding the language. CALCRIM No. 1002 specifically instructed that “The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman was capable of consenting.” The jury also was instructed with CALCRIM No. 220, defining reasonable doubt, stating the defendant is presumed innocent and emphasizing the People’s burden of proving the elements of the offense beyond a reasonable doubt.
The jury’s comments do not express confusion over who had the burden of proof; the jury clearly was attempting to correlate all provisions of the instruction with the evidence. At the same time it was asking questions regarding CALCRIM No. 1002, the jury was asking for the testimony of Mendez, who interviewed both Perez and J.M. and arranged the pretextual phone call between the two.
If Perez felt the instruction was confusing or needed amplification, the burden was on him to present such clarifying or amplifying language. “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218.) Perez does not contend that CALCRIM No. 1002 incorrectly describes the offense of which he stands convicted.
Although defense counsel appeared to be considering proffering some clarifying or amplifying language, defense counsel failed to present any specific language. Defense counsel had ample opportunity to do so because after the exchange in court with the jurors regarding their note about the last paragraph of CALCRIM No. 1002, the jury retired for the evening before continuing deliberations the next morning.
Deviating from the standard language in an instruction is a “perilous exercise” (People v. Yoshimura (1979) 91 Cal.App.3d 609, 632), one in which the trial court, for obvious reasons, did not wish to engage. The trial court assessed how best to assist the jury without instructing what verdict to reach. The trial court determined that the best response was to direct the jury to review the language of the instruction carefully. This response satisfied the trial court’s obligation to help the jury understand the legal principles it was to apply and was a proper exercise of the trial court’s discretion under Penal Code section 1138. (People v. Tate (2010) 49 Cal.4th 635, 706; People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., POOCHIGIAN, J.