Opinion
B161456.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. DIETMAR A. RODRIGUEZ, Defendant and Appellant.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Dietmar A. Rodriguez, appeals the judgment entered following his conviction, by jury trial, for felony indecent exposure, with a prior serious felony conviction finding (Pen. Code, §§ 314, 667, subds. (b)-(i)). Sentenced to a state prison term of four years, he contends there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103), the evidence established the following.
1. Prosecution evidence.
On January 18, 2002, at about 8:30 a.m., 20-year-old Maria J. was walking to Workman High School, where she was in the twelfth grade. She passed a small red car parked on the side of the road. The driver asked Maria if she knew where Temple Street was located. When Maria said she did not, the driver offered her money to get in his car. When she refused, the driver pulled down his pants, exposed his penis, and touched himself. Maria ran to school and reported the incident. At trial, Maria testified defendant Rodriguez was the man in the red car who had exposed himself. She testified she was sure about the identification because she had gotten a good look at his face when he asked her to get in the car.
Sue Coleman, a campus patrol officer at Workman High School, testified that earlier the same morning she had been locking the campus perimeter gates when she saw a man in a red car. Coleman testified, "I held the gate and I pointed to him, motioned to him before I closed the gate if he wanted to drive onto the campus. He kind of waved me off and made a U-turn . . . ." When Coleman "returned to the campus and [she] was called to the security office, within five or ten minutes" and encountered Maria, who "was in tears, hysterical, saying that something had just happened to her on that street." As soon as she heard Marias description of the car and the driver, Coleman immediately realized this was the same car she had seen. "It flashed in my mind right away I had seen the same vehicle and the same man."
About two weeks later, on the morning of February 4, 2002, Coleman was again closing the perimeter gate when she saw a silver car being driven by the same man she had seen in the red car on January 18. When Coleman realized it was the same person, she wrote down his license plate number. Then she got on her golf cart and followed the silver car because she noticed a lone female student, Brandy R., walking towards the campus. Coleman watched the silver car pull over to the curb, stop briefly, and then drive off. She waited for Brandy to ask if she was okay. Brandy said, " Well, he asked me for directions but I didnt stop. I just kept walking real fast and I didnt go to his car. " Coleman testified defendant Rodriguez was the person she had seen on January 18 and February 4. Coleman also testified that on February 4, Rodriguez did not ask her for directions.
Coleman testified: "Again I stopped the gate to ask if the person wanted to enter, same motion, same way, and when I looked at the driver, recognized the driver in a different vehicle as being the same driver [as] the January incident." "Q. What did he do when you motioned him into the driveway? [P] A. Again waved his hand no, he didnt want to come into the driveway, completed his U-turn. At that point [I] realized that it was the same person." Coleman testified she recognized the drivers mannerisms from the earlier incident: "his same hand wave and shaking his head no and the small — he had a small smile."
Brandy testified that on February 4, 2002, she was a 14-year-old student at Workman High School. That morning, while she was walking to school, "[a] guy pulled over and he asked me for directions." Brandy did not answer the man and just kept walking. When she reached the campus, Coleman asked if the man in the car had said anything to her, and Brandy said he just asked for directions.
Coleman gave the license number of the silver car to Detective Laurie Novacek, who determined the car was registered to Rodriguez. On the third day of trial, Novacek went to a house owned by Rodriguez and photographed the silver car parked next to a red car. Shown a photograph of the red car, Coleman testified it looked "very similar" to the car she saw Rodriguez driving on January 18.
At a photographic lineup on February 5, 2002, Maria and Coleman both picked out Rodriguez. Maria testified she was sure her photographic identification was accurate. Maria and Coleman also identified Rodriguez at trial. Maria failed to identify Rodriguez at the preliminary hearing. However, she testified this was because she got scared after two fellow students, who said they were Rodriguezs nieces, told her "not to accuse him."
The prosecution introduced evidence of an uncharged, prior sexual offense committed by Rodriguez. Irma F. testified she met Rodriguez when she was 12 years old and he was 19 or 20. Irma was attracted to him and fell in love with him. She thought he was in love with her too. They had consensual sex about 10 times. Irma got pregnant and gave birth to a son. She broke up with Rodriguez after seeing him with another girl. Irma was 13 and 14 when she had sex with Rodriguez. He never forced her to have sex with him. In 1983, Rodriguez pled guilty to having committed a lewd act on a child under 14 in violation of section 288 and was sentenced to a term of probation.
2. Defense evidence.
Rodriguez worked as a salesperson at Puente Hills Ford. On January 18, 2002, he was scheduled to start work at 11:00 a.m. His wife, Mireya, testified that on the days Rodriguez started work in the morning, she would drive their son to school at Bishop Amat. She usually left the house at 7:00 or 7:15 a.m., and returned about 8:30 or 8:45 a.m. Mireya testified Rodriguez was home when she returned from taking their son to school on January 18. However, she also testified she did not "remember exactly that day," but if "something had been different that day" she would have remembered it. Mireya usually drove the silver car. They had purchased the red car in December 2001 or January 2002, but they never drove it because it was not insured.
Rodriguezs son testified the silver car was his mothers. His parents got the red car from his aunt in December 2001. His father never drove the red car because it lacked insurance. It was also broken and did not get fixed until March 2002. On the morning of February 4, 2002, Rodriguez drove him to school in the silver car. A few days later, Rodriguez said he had gone to find out if it was really okay for his son and his sons friends to be using a play field at Workman High after school hours. Rodriguezs son acknowledged Rodriguez knew the area around Workman High pretty well because he worked nearby. Temple is a big street and Rodriguez would have known where it was.
Jose Olmos testified he and Rodriguez were friends, and that Rodriguez was the godfather of Olmoss daughter. She and Olmoss niece attended Workman High School. When he learned Rodriguez had been charged in this case, Olmos asked his daughter and his niece to find out from Maria if the allegation were true. He did this because he didnt want Rodriguez visiting his house anymore if it were true.
Olmoss daughter testified she and her cousin contacted Maria at her fathers request. She asked Maria "if she had a case that a man had approached her," but Maria just got up and left after saying "she knew who it was and when she would go to court she will tell the truth." They never told Maria not to go to court or not to testify.
3. Proceedings.
During closing argument, defense counsel conceded Rodriguez was the person who spoke to Brandy on February 4, but argued Rodriguez had gone there to check on his sons right to play on the Workman High School field, and that he had merely asked Brandy for directions. Defense counsel argued Coleman and Maria had mistakenly identified Rodriguez as the person who had been in the red car on January 18.
The jury convicted Rodriguez of having committed indecent exposure in connection with the January 18 incident involving Maria. The jury could not reach a verdict on the charge of attempted indecent exposure in connection with the February 4 incident involving Brandy. Because Rodriguez had been previously convicted of violating section 288, his indecent exposure conviction was a felony ( § 314).
CONTENTIONS
1. The trial court erred by admitting evidence of the uncharged sexual offense involving Irma.
2. The trial court erred by refusing to dismiss Rodriguezs Three Strikes prior.
DISCUSSION
1. Rodriguez was not prejudiced by evidence of the offense involving Irma.
Rodriguez raises a series of issues regarding admission of the evidence of the prior, uncharged sexual offense he committed against Irma. The trial court ruled the evidence was admissible under Evidence Code section 1101 to show intent, motive, and common plan, as well as under Evidence Code section 1108 to show propensity to commit a sexual offense. Although we have reservations about the propriety of admitting this evidence, we conclude any error was harmless.
a. Evidence Code section 1108 is constitutional.
Rodriguez contends the evidence should not have been admitted under Evidence Code section 1108 because that statute violates his due process and equal protection rights. This claim is meritless.
Evidence Code section 1108 provides that "in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Section 1108 allows this propensity evidence "to assure that the trier of fact would be made aware of the defendants other sex offenses in evaluating the victims and the defendants credibility." (People v. Falsetta (1999) 21 Cal.4th 903, 911, 986 P.2d 182.) Section 1108 has been upheld in the face of both due process (id. at p. 922) and equal protection challenges (People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Fitch (1997) 55 Cal.App.4th 172, 184-185; see also People v. Jennings (2000) 81 Cal.App.4th 1301, 1312-1313 [Evidence Code section 1109, which allows prior acts of domestic violence to show propensity, does not violate equal protection]).
Rodriguez is incorrect in his assertion there is no reason to admit propensity evidence where the defense is mistaken identity. (See People v. Britt (2002) 104 Cal.App.4th 500, 506 ["We disagree with Britts unsupported assertion that the Legislature intended section 1108 to allow admission of uncharged sex offenses only where the defendants identity as the perpetrator has already been established, not to help establish the fact of identity."].)
b. Any violation of section 1108s notice requirement was harmless error.
It was not until the first day of trial that the prosecutor informed defense counsel she intended to introduce Irmas testimony as propensity evidence under Evidence Code section 1108. Rodriguez contends the trial court erred by admitting this evidence because the prosecutor failed to comply with section 1108s notice requirement. The Attorney General argues the notice requirement was satisfied because, at Rodriguezs arraignment, defense counsel was given a discovery packet which included the probation report relating to the Irma offense. We conclude that even if the prosecution failed to give proper notice, there was no resulting prejudice, either from this specific defect or from introduction of this evidence generally.
Subdivision (b) of Evidence Code section 1108 provides: "In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code ." Section 1054.7 requires notice "at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred."
Although the trial court initially appeared to read this language as requiring actual notice of intent, it ultimately ruled there was no notice problem because "anybody whos going to try a defense of a case like this and knows that his client has a 288 automatically knows that the D.A. is going to make every effort to bring that in under 1108, and the fact that probation report was given to the defense meets the requirement of 1108." But as People v. Soto (1998) 64 Cal.App.4th 966, explained: "Section 1108, subdivision (b) provides for the prosecution to provide prior notice of its intent to introduce such evidence . . . . The notice and disclosure requirements were designed to protect the defendant from unfair surprise and provide adequate time for preparation of a defense. [Citation.]" (Id. at p. 980.)
The trial court told the prosecutor: "But the mere fact that he knows what it is and knows who they are doesnt mean he knows they are going to call them as witnesses, you see thats the difference. [P] And it says you have to tell who you are going to call, even though he already knows it. I understand your theory but Im not buying it . . . ."
However, even if the prosecution failed to comply with the notice requirement, the error was harmless because there is nothing to show Rodriguezs defense was thereby hampered.
A similar notice requirement is contained in section 190.3, providing that "except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation [at the penalty phase] unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial."
Our Supreme Court has routinely held that violation of this notice requirement may be harmless error. (See People v. Bradford (1997) 15 Cal.4th 1229, 1360, 939 P.2d 259 [finding no reasonable possibility defendant suffered prejudice from prosecutions failure to comply with section 190.3 notice requirement]; People v. Mayfield (1997) 14 Cal.4th 668, 799, 928 P.2d 485 ["Although the prosecution should have provided the defense with the list of potential penalty witnesses before the guilt trial began, rather than after the guilt verdicts, defendant was not prejudiced by the delay."].)
Here, Rodriguez had pled guilty to the Irma offense and he was necessarily aware of the circumstances surrounding it, and of the witnesses who could testify about it. Moreover, a defendants failure to request a continuance in this situation generally precludes him from showing prejudice from the delayed notice. (See People v. Mayfield, supra, 14 Cal.4th at 799 ["We find it significant that defense counsel did not claim surprise when provided with a list of possible witnesses and did not request a continuance."]; People v. Medina (1995) 11 Cal.4th 694, 771, 906 P.2d 2 ["Ordinarily, . . . the failure to seek a continuance precludes any showing of prejudice attributable to delay in giving notice of aggravating evidence."].) Rodriguez did not request a continuance and appeared to have no difficulty cross-examining Irma. Moreover, as we will explain below, we conclude the propensity evidence, even if admitted erroneously, did not prejudice Rodriguez.
Although defense counsel did say, during argument of the issue prior to the trial courts ruling, "it seems to be they just simply have not given us adequate notice because had they, we would have been asking for a continuance so that we could have some input as to what [Irma] would be able to testify to now," when the trial court subsequently ruled there had been no notice violation, Rodriguez only asked to make an Evidence Code section 352 argument.
Rodriguez also contends the trial court erred by instructing the jury with CALJIC No. 2.50.01. But the version of CALJIC No. 2.50.01 the trial court used was practically identical to the version recently approved in People v. Reliford (2003) 29 Cal.4th 1007, which specifically found the instruction did not lower the prosecutions burden of proof.
c. Any violation of Evidence Code section 352 was harmless error.
Rodriguez contends his conviction must be reversed because admission of the evidence about his relationship with Irma, whether admitted under Evidence Code section 1101 or section 1108, violated Evidence Code section 352 because its probative value was outweighed by its prejudicial effect. We conclude that, if there were any such error in admitting this evidence, the error was harmless. "`When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1008, 997 P.2d 1044.)
Although Rodriguez argues the trial court did not even apply the Evidence Code section 352 test when considering the admissibility of this evidence, the trial record makes it clear the trial court did, in fact, make a section 352 determination.
Rodriguez complains Irmas testimony was extremely inflammatory. Arguably, her testimony was less inflammatory than the usual child molesting case because it was somewhat akin to statutory rape. But it was also arguably more inflammatory than the charged offenses, which did not involve any physical contact with the victims and, except for the prior section 288 conviction, would have been misdemeanors. More problematic, however, was the remoteness of the Irma incident, which occurred almost 20 years before the instant charges.
The Attorney General argues "the probative value of the evidence was high" and "relevant to show that [Rodriguez] had a disposition to commit sexual offenses against young females who were significantly younger than him and that he was sexually gratified by such acts against such females. This evidence had a tendency to prove that, if he exposed himself or attempted to expose himself to the victims in this case, he did so with the purpose of sexual arousal, gratification, or affront, which is an element of a Penal Code section 314 violation." But the fact Rodriguez had engaged in a consensual, although illegal, sexual relationship with a 13 year old, when he himself was only 19 or 20, does not seem terribly relevant to indecent exposure charges almost 20 years later.
The prosecutor had to prove Rodriguez intended to direct attention to his genitals for the purpose of sexual arousal, gratification or affront. (See People v. Archer (2002) 98 Cal.App.4th 402, 404; In re Dallas W. (2000) 85 Cal.App.4th 937, 939.)
Although "no specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible," "remoteness of prior offenses relates to the question of predisposition to commit the charged sexual offenses. [Citation.] In theory, 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. However, . . . 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, 284-285.) Here, the remoteness of the uncharged sexual offense was exacerbated by its dissimilarity to the charged offenses.
But even if the trial court should have excluded Irmas testimony under Evidence Code section 352, we conclude there was no resulting prejudice. Rodriguez asserts he was prejudiced "because the evidence of guilt was exceptionally weak " and presented "a close and difficult credibility determination for the jury which had to weigh conflicting evidence regarding the issue of identification. There was no physical evidence to connect appellant to the crime and appellants wife testified that he was home when the crime occurred." We completely disagree with this evaluation of the trial evidence.
Rodriguezs wife, Mireya, did not testify he was home when the crime occurred. In fact, she conceded she did not remember that day in particular, and defense counsel did not even mention Mireyas testimony during closing argument to the jury. Two eyewitnesses identified Rodriguez as the driver of the red car on January 18. Maria testified she got a good look at Rodriguez. She picked him out of a photo array two weeks later and she identified him at trial. She explained she had failed to identify him at the preliminary hearing only because she was scared after two fellow students approached her and talked to her about the case. This explanation was corroborated by the testimony of Olmos and his daughter.
Marias eyewitness identification was corroborated by Coleman, who saw Rodriguez in a red car by the high school on January 18 shortly before the incident with Maria. Coleman then recognized Rodriguez on February 4, even though he was driving a different car. Because Coleman noted Rodriguezs license number on February 4, he was forced to concede he had spoken to Brandy. His explanation for his conduct on that day, introduced by way of his sons testimony, was not very credible.
Any error in admitting Irmas testimony was harmless because the evidence against Rodriguez was overwhelming.
2. No error in refusing to strike prior serious felony conviction.
Rodriguez contends the trial court abused its discretion by refusing to dismiss, under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628, his prior serious felony conviction for Three Strikes purposes. This claim is meritless.
"Appellate review is available when a trial courts refusal or failure to exercise its section 1385 discretion to dismiss or strike is based on a mistaken belief regarding its authority to do so . . . . The appellate courts do not have the power to substitute their discretion for that of the trial court or to direct the trial court to exercise its discretion to dismiss. [Citations.] We simply may review for an abuse of discretion where the court exercises its section 1385 authority to dismiss. (People v. Williams (1998) 17 Cal.4th 148, 158-159, 948 P.2d 429 . . . .) There is no authority granting the appellate courts the ability to review a courts informed decision to not exercise its section 1385 power in the furtherance of justice. [P] Our conclusion is supported by Romero. At footnote 13, the court held that a petition for writ of habeas corpus filed by a defendant in the sentencing court may be summarily denied if the record shows that the sentencing court was aware that it possessed the discretion to strike prior felony conviction allegations without the concurrence of the prosecuting attorney and did not strike the allegations . . . . [Citations.] [P] Here, we have a record which shows the trial court was aware of its discretion pursuant to section 1385, and refused to exercise it to strike any of defendants priors. Under these circumstances, we summarily reject defendants contention that the trial court abused its discretion by not striking any of his priors." (People v. Benevides (1998) 64 Cal.App.4th 728, 735, italics added & fn. omitted.) "Of course, where the trial court expresses clearly improper reasons for refusing to exercise its discretion, the appellate court must correct the error." (Id. at p. 735, fn. 7.)
Other cases provide for essentially the same type of limited appellate review. People v. Myers (1999) 69 Cal.App.4th 305, concluded: "We shall continue to review rulings on motions to strike prior convictions when the issue is raised under the deferential abuse of discretion standard. Under that standard an appellant who seeks reversal must demonstrate that the trial courts decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance." (Id. at pp. 309-310.)
Similarly, People v. Gillispie (1997) 60 Cal.App.4th 429, said: "The trial court may ordinarily rely on the record of conviction to justify the denial of relief under Penal Code section 1385. In general, where the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure therefrom, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternative disposition. [Citation.] This principle, however, does not preclude the possibility of error in the exercise of the trial courts discretion. For example, the record may show that the court was motivated by considerations that violate the guarantee of equal protection under the law, such as bias related to the defendants race or national origin, or that under the peculiar circumstance of the case, the sentencing norms produced an arbitrary, capricious or patently absurd result. [Citation.]" (Id. at p. 434.)
Rodriguez does not point to anything showing the trial court was unaware of its discretion to strike the prior or decided not to do so for some improper or capricious reason, nor do we find anything like that in the record. Rodriguez merely argues he has led a relatively blameless life since the Irma incident and that he should have been treated as if he were outside the Three Strikes scheme. This is an insufficient reason to disturb the trial courts ruling. (See People v. Bishop (1997) 56 Cal.App.4th 1245, 1360 ["The People acknowledge that the exercise of discretion in this case was not based on impermissible factors such as judicial convenience or antipathy for the three strikes law, but was instead the result of individualized consideration of Bishops background and present circumstances. The People contend, however, that the trial court erred in dismissing strikes because its reasons for doing so [did] not outweigh the aggravating factors. The contention is unavailing." "The flaw in the Peoples position is not in approaching the analysis in terms of weighing factors, but in failing to accord the trial court the breadth of discretion that it has traditionally possessed under section 1385."].)
Rodriguez had sustained three burglary convictions prior to the Irma offense, and one drug possession conviction subsequently.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. ALDRICH, J.