Opinion
C040834.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO SOTO, Defendant and Appellant.
A jury found defendant Jose Soto guilty of rape and forcible oral copulation of victim J.D., with special findings that he kidnapped, tied or bound the victim, and was armed with a knife during the commission of these crimes. The jury also found Soto guilty of the rape of victim Q.D., with a special finding that he was armed with a knife. Finally, the jury found that defendant committed a sex crime against separate victims within the meaning of Penal Code section 667.61, subdivision (b)(e)(5).
After the court found a prior felony conviction to be true, defendant was sentenced to state prison for an aggregate term of 80 years to life under the three strikes law. He appeals, challenging the sufficiency of the evidence to support one of the rape convictions and claiming instructional error and improper admission of prior sex crimes under Evidence Code section 1108. We will reject these arguments and affirm the judgment.
All further statutory references are to the Evidence Code unless otherwise indicated.
BACKGROUND
I
Victim Q.D.
In November 1999, 22 year-old Q.D. was working at night as a prostitute in Stockton when defendant drove up and offered her $ 200 for a "date," to take place at defendants house in Lathrop. Q.D. agreed.
They drove for about 45 minutes until they got to his house which was in the back of a small appliance store. As soon as they walked in the door, defendant used a key to lock the dead bolt lock from the inside, which made Q.D. nervous.
Once inside the bedroom, Q.D. asked for her money. In response, defendant pulled out a knife with the blade exposed and ordered her to take her clothes off.
Complying with defendants instructions, Q.D. disrobed and got on the bed. Defendant then took his pants off and had vaginal intercourse with Q.D. for about 30 minutes. He then ordered her to roll over onto her stomach and penetrated her anally for 30 more minutes.
Q.D. told defendant she had to urinate, and she was allowed to go to the bathroom. While she was in the bathroom, defendant asked if he could take pictures of her naked. At that point, Q.D. broke open the bathroom window with a chair and started screaming for help. A few seconds later, defendant opened the door with a shocked look on his face and told her to stop screaming. She asked "Can I go?" and he replied "You can go, you can go." Q.D. put on her pants and carried her jacket with her as she ran out to the street. A neighbor found her distraught, frightened, naked from the waist up, yelling she had been raped, and that "Hes got a knife." The neighbor allowed Q.D. into her home, where she dialed 911.
Q.D. positively identified defendant from a photographic police lineup. Sheriffs deputies searching defendants house recovered a black folding knife, Polaroid film, rope, and duct tape from a dresser near his bed.
II
Victim J.D.
Around 4:00 a.m. on June 30, 2001, 22 year-old J.D. was picking up cigarette butts and disposing of them in a garbage canister outside her residence in Lathrop. Defendant walked by and asked her for directions to a street called Warfield. Because defendant seemed confused, J.D. led him down the street and was pointing out directions, when defendant grabbed her by the neck and pushed her up against a fence in a nearby driveway. He tried unsuccessfully to rip off J.D.s pants, then decided to push her toward a less conspicuous spot next to a church. As he did this he held a knife to her throat and told her to "stop fucking around."
At defendants direction, J.D. removed her clothes while he held the knife to her throat. Defendant took J.D.s shirt and tied it around her head, asking her if she could see anything. J.D. replied she could not and assured him she was "positive," after he asked her again.
Defendant ordered her to spread her legs and penetrated her vaginally. When he was finished, defendant forced her to orally copulate him for a short time.
Telling J.D. he had a "better idea," defendant then ordered J.D. to roll over on her hands and knees. He put all his weight on top of her and stayed in that position for a couple of minutes, then suddenly got up and fled.
III
Uncharged Misconduct
Pursuant to section 1108 the prosecution was permitted to introduce two prior uncharged incidents of sexual misconduct committed by defendant on February 24, 1997.
Late that night defendant, who was then 25 years old, together with 14-year-old A.F., and a third person, robbed a BP gas station and convenience store in Lathrop. Wearing masks, the robbers ordered the store clerk, B.D., to the floor where they bound her arms, legs, eyes, and mouth with duct tape. After going through B.D.s purse, defendant took out a knife, cut her sweater and bra open, sucked one of her breasts, and fondled the other.
Later that night A.F. and defendant met at a community center in a park to divide the stolen property. While at the park, defendant started kissing A.F. and grabbing her breasts. He pushed her down on the grass and tried to remove her clothes. Having managed to half undress A.F., defendant inserted his penis in her vagina, despite her pleas to get off her. A.F. escaped and began running. Defendant caught up with her and demanded oral sex. A.F. complied because she wanted to go home. At one point, defendant pulled out a buck knife and some rope, telling A.F. that if she got out of hand he would have to tie her up. A.F. played with the knife, but defendant quickly grabbed it away from her.
The jury was advised that in 1997, defendant pled guilty to "one count of lewd act with a child, fourteen or fifteen years of age, . . ." as well as robbery.
IV
Defense
Defendant did not testify. His mother and father took the stand and gave testimony supporting the inference that their son did not leave their house the night of the attack on J.D.
DISCUSSION
I
Substantial Evidence of the Rape of Q.D.
Defendant claims his conviction for the rape of Q.D. should be reversed for lack of sufficient evidence of force or fear. His argument may be summarized as follows: Q.D. willingly accompanied him to his house for the express purpose of having sex; he never threatened her with the knife and put it away after displaying it; Q.D. never verbalized her fear of defendant, and apparently just "freaked" after he asked if he could take nude pictures of her while she was in the bathroom; and there was no indication defendant would not have paid her for her services.
Penal Code section 261, subdivision (a)(2), provides: "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [P] . . . [P] 2. Where it is accomplished against a persons will by means of force . . . or fear of immediate and unlawful bodily injury on the person or another." (Italics added.)
Upon a challenge to the sufficiency of the evidence of fear to support a verdict of rape, we ask "whether "a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal. Rptr. 431, 606 P.2d 738 . . . .) In making this determination, we "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Ibid.)" (People v. Iniguez (1994) 7 Cal.4th 847, 854, 872 P.2d 1183 (Iniguez).)
The "fear" element of rape has two components, one subjective and the other objective. "The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations.] [P] In addition, the prosecution must satisfy the objective component, which asks whether the victims fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victims subjective fear and took advantage of it. [Citation.]" (Iniguez , supra, 7 Cal.4th at pp. 856-857.)
Q.D.s testimony satisfied both components of the fear element. Although the initial arrangement between Q.D. and defendant was ostensibly "sex-for-money," it became clear as soon as they arrived at his house that defendant had used the agreement as a ruse to effectuate a rape: defendant dead bolted the door, essentially locking her inside; and when Q.D. asked for her money, defendant responded by brandishing an open knife and ordering her to take off her clothes. It was not necessary for defendant to verbally threaten Q.D. with bodily injury to transform the encounter into a rape. Defendants display of an open-blade knife spoke as loudly and forcefully as any words he could utter. A reasonable jury could find that Q.D. submitted because she was genuinely afraid for her safety. The record also supports the inference that Q.D.s fear was objectively reasonable, or if unreasonable, that defendant exploited it.
Defendant misrepresents the record in asserting that defendant "put the knife away" after brandishing it. Q.D. testified merely that after defendant took the knife out, she did not know what he did with it but believed he set it by his bed.
Contrary to defendants suggestion, it was not necessary that Q.D. either express her fear of defendant or communicate that the sex was nonconsensual prior to the act. "Fear" may be inferred from the circumstances despite even superficially contrary testimony of the victim." (Iniguez, supra, 7 Cal.4th at p. 857.) Here, there was strong evidence that Q.D. feared defendant, as manifested by her behavior upon reaching the bathroom.
Moreover, the Legislature abolished the element of resistance as a prerequisite to rape in 1980. (Iniguez, supra, 7 Cal.4th at pp. 855-856.) Now, all that is required is that the jury find, in light of the totality of the circumstances, that the victims compliance with defendants insistence on sexual intercourse "was induced either by force, fear, or both, and, in any case, fell short of a consensual act." (People v. Barnes (1986) 42 Cal.3d 284, 305, 228 Cal. Rptr. 228, 721 P.2d 110 (Barnes).) Defendants position would "effectively guarantee[] an attacker freedom to intimidate his victim and exploit any resulting reasonable fear so long as she neither struggles nor cries out," a result rejected by the California Supreme Court. (Iniguez, supra, 7 Cal.4th at p. 858.) Defendants substantial evidence claim must be rejected.
II
Refusal to give Defendants Pinpoint Instruction
Defendant submitted the following proposed instruction on the element of fear in a rape case: "The element of fear is not established simply by evidence of a subjective feeling of fear by the alleged victim. Rather, the prosecution must establish beyond a reasonable doubt that the alleged perpetrator, by his conduct, created a feeling of fear in the alleged victim, he was aware he had done so, and he acted upon such fear in accomplishing an act of sexual intercourse."
The trial court refused to give this instruction, finding it was "superfluous" to CALJIC No. 10.00 which states: "[The fear of immediate and unlawful bodily injury must be actual and reasonable under the circumstances[, or if unreasonable, the perpetrator must have known of the victims fear and taken advantage of it].]"
Defendant claims his instruction was a correct statement of the law, and should have been given where, as here, the victim was a prostitute, a sex act was part of the original arrangement, and she said nothing to defendant to indicate she was afraid. We are not persuaded.
Defendant offers no coherent explanation of how the proposed instruction shed any more significant light on the concept of fear than that already set out in CALJIC No. 10.00. Worse still, as the prosecutor pointed out, the proposed instruction was misleading, since it neglected to inform the jury that knowing exploitation of a victims fear is required only where the fear is unreasonable. (Iniguez, supra, 7 Cal.4th at p. 857; Barnes,supra, 42 Cal.3d at p. 304 & fn. 20.) A trial court has no duty to give pinpoint instructions which are misleading or on points of law adequately covered by other instructions. (People v. Turner (1994) 8 Cal.4th 137, 203, 878 P.2d 521; People v. Bolden (2002) 29 Cal.4th 515, 556.)
III
Admission of Prior Sex Crimes Under Section 1108
In limine and prior to trial, defendant sought to exclude the testimony of A.F. that defendant raped and forced her to orally copulate him following the gas station robbery in which they both participated. Counsel argued that the incident was more prejudicial than probative because: (1) A.F. was a minor; (2) defendant was never convicted of rape, but rather a lewd act on a minor; (3) admission of the incident would take up an inordinate amount of time since defendant claimed the encounter was consensual; and (4) the crimes were dissimilar, since defendant and the victim knew each other, unlike the charged offenses.
While conceding that the sexual assault on A.F. created some potential prejudice in that it involved a minor who was 10 years defendants junior and an acquaintance, the trial court decided to admit the evidence under section 1108. The judge noted that the sequence of sexual acts was the same as in the Q.D. charges, and A.F.s testimony tended to corroborate the credibility of both victims in the present case. Defendant claims this ruling was prejudicial error.
In a prosecution for a sexual offense, section 1108 permits evidence of the commission of another sexual offense provided that it is not inadmissible under section 352 (prejudicial effect of the evidence outweighs its probative value). "By reason of section 1108, trial courts may no longer deem propensity evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (People v. Falsetta (1999) 21 Cal.4th 903, 916— 917, 986 P.2d 182.)
We will not disturb a trial courts exercise of discretion under section 352 unless it is shown the trial court exercised it ""in an arbitrary, capricious or patently absurd manner."" (People v. Frye (1998) 18 Cal.4th 894, 948, 959 P.2d 183; accord, People v. Sanders (1995) 11 Cal.4th 475, 512, 905 P.2d 420.)
The courts ruling admitting the A.F. incident was not an abuse of discretion. The episode was clearly relevant to both victims in the present case, in that it tended to show defendants propensity for obtaining sexual gratification from young females by force and intimidation. Significantly, both the A.F. incident and the incident involving Q.D. started out as innocuous encounters which escalated into forcible sex. In all three cases, defendant brandished a knife as a means of intimidating his victim. In the case of A.F. as with J.D., defendant first raped the victim and then immediately demanded the victim orally copulate him.
While defendant correctly points out there were some dissimilarities between the A.F. incident and the charged offenses, section 1108, unlike section 1101, subdivision (b), contains no predicate requirement that there be an unusually high degree of similarity. As the court noted in People v. Soto (1998) 64 Cal.App.4th 966, the Legislature deliberately chose not to add a similarity requirement to section 1108 because doing so would tend to reintroduce the strictures of prior law which the statute was designed to overcome "and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not specialists, and commit a variety of offenses which differ in specific character." (Id. at p. 984, quoting Historical Note, 29B pt. 3, Wests Ann. Evid. Code, (1998 pocket supp.) foll. § 1108, pp. 31-32.)
Finally, defendant contends that the ruling was an abuse of discretion because: (1) he disputed the claim of forced sex with A.F. and "consented to sex is not probative" of violent sexual offenses; and (2) the district attorney in A.F.s case allowed him to plead guilty to a lesser charge of unlawful sex with a minor. Neither point has merit.
Defendants claim of consent with respect to A.F. does not militate in favor of exclusion. Quite to the contrary: defendant also claimed consent with respect to Q.D.s accusation of rape. A.F.s testimony tended to undermine that claim and support the truthfulness of Q.D.s testimony. (See People v. Fitch (1997) 55 Cal.App.4th 172, 182 ["The Legislature has determined the need for this evidence is critical given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial"].)
Nor did the fact that defendant pled guilty to a lesser offense of having sex with A.F. as a minor tip the scales in favor of exclusion. To be admissible under section 1108, it is not necessary that any conviction result from the prior sexual misconduct. A fortiori, the fact that the accused pleads guilty to a lesser offense than that described by the victim is of little moment.
Clearly, perpetrating a lewd act on a 14— or 15-year-old female is a serious offense. If anything, the fact that defendant pled to a less serious offense reduced the prejudicial effect of the evidence, since it tended to soften the impact of A.F.s rape allegation. In any event, the trial court did not abuse its discretion in allowing the jury to weigh the incident for whatever light it shed on the charges involving J.D. and Q.D.
IV
Giving the 1999 Revision of CALJIC No. 2.50.01
The trial court gave the post-1999 revision of CALJIC No. 2.50.01, which states in relevant part: "If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. [P] However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes. [P] Unless you are otherwise instructed, yYou must not consider this evidence for any other purpose.]"
Defendant contends the trial court erred and deprived him of due process of law in giving this instruction since he contends it impermissibly lessens the burden of the prosecution to prove him guilty beyond a reasonable doubt.
This claim has recently been rejected by the California Supreme Court. In People v. Reliford (2003) 29 Cal.4th 1007, the state high court held that "the 1999 version of CALJIC No. 2.50.01 correctly states the law." (Id. at p. 1009.) In so holding, the court essentially rejected all the arguments raised by defendant here. (Id. at pp. 1012-1016.)
In his reply brief, defendant acknowledges that Reliford disposes of his argument and that this court is bound to follow the Supreme Courts command under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.
V
Instructions Defining "Tying or Binding"
At the prosecutions request, the court gave a special instruction on the definitional aspects of the enhancement of tying or binding the victim, as set forth in Penal Code section 667.61. The instruction read:
"It is alleged — alleged in counts 1 and 2 [victim J.D.] that in the commission of the crimes charged, the defendant tied and bound the victim.
"If you find the defendant guilty of the crimes charged, you must determine whether the defendant committed those crimes by tying or binding the victim.
"Tying or binding includes only those actions which render a victim more vulnerable whether by restricting her or his movement or depriving her or him of one of more of his or her senses.
"The attacker must intend to commit the act that resulted in tying or binding, as I have just defined those terms, but need not intend the result, that is, deprivation of the senses or increasing the vulnerability of the victim." (Italics added.)
In the present case, the evidence showed that defendant made J.D. wear her shirt around her eyes as a blindfold to ensure that she could not see during the attack.
Defendant claims giving the instruction was prejudicial error because "the entire act of rape itself restricted movement and therefore could be perceived by the jury as sufficient in and of itself . . . to find the enhancement true."
The subject instruction is a correct statement of law as taken from People v. Campbell (2000) 82 Cal.App.4th 71, wherein the Court of Appeal held that tying tape around the victims eyes so she could not see fell within the proscription of Penal Code section 667.61. (Campbell, at pp. 78-80.)
In closing argument, the prosecutor made crystal clear that the use of J.D.s shirt as a blindfold was the predicate act which formed the basis for the charged enhancement. The blindfold satisfied the enhancement, it was explained, because it deprived J.D. of her sight and thereby made her more vulnerable.
It is thus clear that the jury was never asked to find defendant guilty of the "tying or binding" enhancement based on a restriction of J.D.s freedom of movement. Defendants claim the instruction could have led the jurors to find the act of rape itself was sufficient evidence of tying and binding assumes they lacked common sense. The law is just the opposite: "We presume that jurors are intelligent people, capable of understanding the instruction and applying it to the facts of this case." (People v. Napoles (2002) 104 Cal.App.4th 108, 118.)
Given the evidence presented, the argument of counsel, and the instructions given, the jury could not possibly have found the "tying or binding" enhancement true merely by the restriction of movement inherent in defendants act of raping J.D. Defendants instructional claim is without merit.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., and SIMS, J.