Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD194986, Charles G. Rogers, Judge.
McCONNELL, P. J.
Christopher Dale Smith was convicted by a jury of one count of forcible rape (Pen. Code, 261, subd. (a)(2)) and two counts of forcible oral copulation (§ 288a, subd. (c)(2)), burglary of an inhabited dwelling while a person was in the residence (§§ 459, 460, 667.5, subd. (c)(21)) and false imprisonment by violence or menace (§§ 236, 237, subd. (a)). The jury made true findings that the sex offenses occurred during a burglary with an intent to commit rape (§ 667.61, subds. (a), (c), (d)) and that Smith used a deadly weapon during those offenses (§§ 12022.3, subd. (a); 667.61, subds. (b), (c), (e)). He was sentenced to an indeterminate term of 25 years to life and a determinate term of 24 years.
All statutory references are to the Penal Code unless otherwise specified.
He contends his convictions must be reversed because the court improperly admitted evidence of prior misconduct and imposed consecutive sentences. We affirm the judgment.
FACTS
In November 2005, A.V. was a nursing student from Boston living in San Diego while she completed an internship with a local hospital. She shared an apartment with another nursing student from Boston. She and her roommate worked at the hospital from about 7:00 a.m. to 7:30 p.m., with 30 to 60 minute lunch breaks that had to be taken before 2:00 p.m.
Starting Sunday, November 6, A.V. became ill. She had an almost constant cough and an ear infection, but she worked on Monday, Tuesday and Wednesday. Although she planned to eat lunch on Monday with her roommate and her roommate's visiting friend, A.V. had to sit with a patient and ate alone in the hospital cafeteria about 1:00 p.m. A fellow employee, "Manny," covered for her while she ate lunch.
On Wednesday, after she finished her shift, A.V. went to the emergency room in the hospital with a fever, high blood pressure and a high heart rate. She was diagnosed with pneumonia, given antibiotics and I.V. fluid and told not to work for the next three days.
On Thursday, November 10, she stayed home sick. When her roommate left at about 12:30 or 1:00 p.m., A.V. was "really pale, "very sluggish" and had an even worse cough. She was in her bedroom with the door closed. About 4:00 p.m., A.V. took out the trash, leaving the apartment door unlocked.
When she returned to her apartment, she found Smith standing in her bedroom. She screamed and jumped back. He said he was not going to hurt her, but then he showed her a knife, threatened her, and told her to get in the closet. In a matter-of-fact tone of voice he said, "I'm going to have sex with you." Once inside the closet, he had her remove her clothes, then forced her to orally copulate him, he orally copulated her and finally, he raped her.
When he was finished, he told her to get up and get dressed. She dressed and told him to leave. He told her to take off her clothes because he wanted to "to do" her again. She collapsed to the floor crying. He started crying, too, saying he had never done this before and that he was married and loved his wife. She talked to him, using "therapeutic communication" she had learned in nursing school. He asked if she were going to call the police. When she said she was, he begged her not to do so, and attempted to excuse his conduct by saying he had ADHD. He offered to return the next day and pay her $500 but she told him to leave.
As soon as he left, A.V. locked the door and called the police. She also called her roommate. During the phone call to her roommate, she was crying and upset and said she had been raped. When the police arrived, A.V. was still crying and was hysterical. She described the knife Smith used and said she thought it might be one of her knives. There was a knife missing from the knife block in the kitchen. The officers took her to the hospital for an examination during which she cried intermittently. The examining nurse found genital injuries that were consistent with A.V.'s description of the rape. These injuries, however, were also consistent with consensual intercourse.
A DNA analysis was conducted on semen recovered from A.V. and carpet in the walk-in closet. An expert testified Smith was "very likely" the contributor of the semen.
The expert quantified her results, for example, stating that the semen on the vaginal swab could have been contributed by 1 in 10 quintillion Caucasians, 1 in 390 quintillion African Americans, or 1 in 150 quintillion Hispanics.
The police contacted one of A.V.'s upstairs neighbors, Ashley Apgar. Apgar was awakened by the police knocking on her door. There was a UPS package sitting on the ground next to her front door. UPS trains its personnel not to leave packages by the front doors of residences that share walkways because of the danger the package might be stolen. Instead, UPS personnel are supposed to leave a tag on the door to let the customer know a delivery was attempted, and, if possible, leave the package at the front desk, at the management office or with a neighbor. Smith, who worked for UPS, had delivered the package to Apgar at 3:53 or 3:54 p.m.
The police contacted Smith the next day, Friday, November 11. Smith admitted he had sex with the "girl" who had reported the rape, but claimed it was consensual. He claimed he had first met her on Friday outside her apartment and they flirted on that day as well as on Monday and Tuesday. He said they "had a relationship," but then said they were not dating but once had lunch together. When asked when the lunch occurred, he first said "two days ago," which would have been Wednesday, November 9, but then said
Smith never used A.V.'s name during the interview.
lunch was on Monday. He said he had seen her at her apartment and asked her out to lunch that day. He told the police that he believed A.V. was claiming he raped her because she was upset about learning he was a married man.
An expert in forensic science testified proper investigative procedures require collecting bedding material because that is a typical place for consensual sex, but the police failed to do that in this case.
Prior Acts
Hanna Orr-Ziv
On December 3, 2004, Hanna Orr-Ziv brought her car to a dealership for service. She received a ride home in the dealership's courtesy van. Smith was the driver. When they approached her home, Smith asked to use her bathroom. She agreed, but she was unable to open her front door because she had bolted it shut from inside. As they unsuccessfully tried to enter the house through a window, Smith commented that it was a pity her husband was not at home. Orr-Ziv said her husband was out of town and they would have to return to the dealership so she could get the remote control for the garage and enter the house through the garage door. As they were returning to the dealership, Smith called ahead to make sure the remote would be ready to pick up when they arrived.
At the dealership, Smith went inside and retrieved the remote. Orr-Ziv asked if he had a chance to use the restroom at the dealership and told him she was not in a hurry. Smith said he did not need to use the restroom, explaining "[i]t comes and goes." As they approached her house, Orr-Ziv offered the use of her bathroom. Smith accepted her offer and followed her into the house. After using the bathroom, Smith went to his van but returned, claiming he had lost his keys and asked if he could look in the bathroom. He was in the bathroom for two or three minutes, said he did not find his keys and, at her suggestion, went to look in the van. About two minutes later, he returned, claiming they were stuck under the driver's seat and asked to use her phone so he could call the office for assistance; he claimed his cell phone was not working. She directed him to the phone in the kitchen. She saw him pick up the phone but did not hear him talk. He claimed he was put on hold. She told him she had errands to run and could not wait any longer. She offered the use of her cell phone outside the house and started walking toward the garage with Smith following her. While still inside the house, he started strangling her with his right arm or hand. She screamed. He put his left hand over her mouth and tried to pull her towards him. She bit his finger. He released her and she ran through the garage out to her driveway. She told him not to flee and said she was calling the police. He knelt down, said he had not wanted to do anything, and while pointing to his wedding ring, said he was a married man. A neighbor, who had heard Orr-Ziv screaming, came over and took Smith to his house while the police were called. Smith was arrested and charged with crimes, but was acquitted.
Smith testified that as he followed Orr-Ziv out of the house, she knelt on the ground to retrieve something out of her bag. As he walked past her, he reached over her shoulder to shake her hand. His forearm "kind of hit her cheek and shoulder" and she screamed. He put his hands on her shoulder and said, "It's okay" repeatedly, but she bit his finger.
Ashley Apgar
On Friday, November 4, 2005, Smith was working his third day as a UPS driver. He had four packages to deliver to Apgar who was eight months pregnant and lived upstairs from A.V. He first delivered one of the smaller packages. He asked if her husband was home because there were a lot of packages and he needed help carrying them. He delivered the packages one at a time. He asked if he could bring the two heavy packages inside but she told him no. He also asked to use her bathroom. She said no. His questions about whether her husband was home and asking to use her bathroom made her feel so uncomfortable that she called her husband after Smith left to tell him what had happened.
Defense
Smith testified that he first met A.V. the previous Wednesday, November 2. They flirted with each other. He next saw her on Friday, November 4, when she was standing at her front door. They talked and flirted. They agreed to meet for lunch at a fast food restaurant on Monday, November 7, at about 2:00 p.m. She met him there shortly after 2:00 p.m. She was flirty and friendly, but they did not make any specific arrangements to meet each other again.
On Thursday, November 10, Smith knocked on A.V.'s door after delivering a package to Apgar. He told her he was taking a break and she invited him into the apartment. After getting him a glass of water, she led him to the bedroom and sat down on the bed. After talking for awhile, then kissing, they eventually engaged in consensual sex acts after A.V. stood up to put something in her closet. When they were finished, he felt bad because he had cheated on his wife. He told her he was married. A.V. was mad and hurt and threatened to tell his wife. He offered to pay her $500 if she would not tell his wife, but she refused the money and told him to leave.
One of A.V.'s coworkers, Manik Uppal, testified he covered for A.V. for a lunch break that lasted 45 to 50 minutes, rather than the usual break of 30 minutes. On cross-examination, Uppal testified he could not remember the date but it was sometime toward the end of 2005, A.V. returned with another woman who was not wearing hospital attire, the lunch break was about noon, or before 1:00 p.m. and had lasted about 45 minutes.
Uppal also goes by the name Manny.
DISCUSSION
I
Admission of Prior Acts
Smith contends the trial court abused its discretion when it admitted the prior acts to show a common plan, design or motive. He contends there was insufficient commonality among the charged and uncharged acts.
Evidence Code section 1101 prohibits admission of evidence of a prior bad act by the defendant if its only relevance is to prove the defendant has a propensity to commit crimes; however, section 1101 permits prior bad act evidence to be admitted if relevant to prove some other fact, such as intent, motive or identity. (People v. Balcom (1994) 7 Cal.4th 414, 422.) The determination that a prior bad act is relevant does not end the inquiry. (Id. at p. 426.) To be admissible, the bad act " 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.' " (Ibid.) Hence, the court must examine whether the probative value of the prior bad act evidence is " 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (Id. at p. 427.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Bolin (1998) 18 Cal.4th 297, 320.)
The erroneous admission of prior bad act evidence will support a reversal of the conviction only if it is reasonably probable that the jury would have reached a more favorable result if the evidence had been excluded. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) This determination "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal.4th 142, 177, italics omitted.)
Here, the prior acts had some relevance to an issue in the case. They tended to show that Smith, while working, had a plan of contacting female customers who were virtual strangers to him, ascertaining whether they were alone in their homes, and entering their homes to accost them. He was unsuccessful in gaining access to Apgar's apartment while she was alone. He was able to access Orr-Ziv's home and accosted her inside her residence but she was able to escape. After she escaped, Smith attempted to explain there was a misunderstanding by stating he was a married man. Here, Smith entered the apartment of A.V., who was a stranger, while she was alone and accosted her inside the apartment. Unlike Orr-Ziv, A.V. was unable to escape.
Moreover, even if we were to conclude the prior acts should have been excluded because they were not sufficiently similar to the charged acts, we would not reverse. The prior acts were not unduly inflammatory compared to the charged acts. In the Apgar incident, Smith never entered the apartment. In the Orr-Ziv incident, the victim fled immediately after Smith touched her and a jury acquitted him of the charges. More importantly, as with most sexual assault cases, this case involved a credibility contest between the defendant and the victim, and there was other evidence supporting the victim's version.
There was physical evidence supporting A.V.'s version. She testified Smith used a knife that looked like a knife she owned. A knife was missing from her kitchen. She had injuries that were consistent with nonconsensual sex. Her conduct after Smith left was consistent with having been raped. She called the police immediately after he left. She told both her roommate and mother she had been raped. After the incident, A.V. was crying and hysterical.
Smith's version of what occurred was impeached by his prior statements to the police. He told the police he flirted with A.V. at the apartment complex on Monday, November 7 and Tuesday, November 8. A.V., however, testified she was working both those days. At trial, Smith changed his story. He testified he flirted with her only on Wednesday, November 2, and Friday, November 4. Smith initially told the police they had lunch on Wednesday, then he told the police that when he saw A.V. at the apartment complex on Monday, he asked her to lunch. At trial, Smith testified the lunch date was set up on Friday, a day when A.V. testified she was not working.
Additionally, there are certain aspects of Smith's version that do not make sense. Under Smith's version, at best, he had chatted with A.V. for a few minutes at her apartment and during a 20-minute lunch. Smith presented no evidence disputing that A.V. was so ill that she had gone to the emergency room the night before the incident, was too ill to work, and had been diagnosed with pneumonia. A.V.'s roommate described A.V. as pale, sick, and lethargic just a few hours earlier. Yet, according to Smith, she invited him into her apartment, led him directly into her bedroom, and within a matter of minutes was having intercourse with him in her walk-in closet. This scenario seems unlikely. Moreover, Smith's explanation that A.V. reported a rape only because she had learned he was a married man is inconsistent with her conduct. Numerous people interacted with A.V. shortly after the incident. She consistently stated she had been raped. The people who saw her did not describe A.V. as being only somewhat upset or angry; they described her as being hysterical, crying, and barely coherent, hardly the picture of a woman who was coldly making a rape charge for revenge.
In sum, we conclude reversal is not merited on the ground the court erred in admitting the prior act evidence.
II
Consecutive Sentencing
Smith contends the imposition of consecutive terms for the rape and one of the oral copulations violated his federal constitutional rights to due process and a jury trial because they were based on facts found by the judge, rather than by the jury using a beyond a reasonable doubt standard. His argument is based on the premise there is a presumption that terms should be imposed concurrently.
The California Supreme Court rejected this argument in People v. Black (2007) 41 Cal.4th 799, 822-823). We are bound by this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., McINTYRE, J.