Opinion
C038918.
7-18-2003
THE PEOPLE, Plaintiff and Respondent, v. GARY LEROY WILKEY, Defendant and Appellant.
Based upon defendant Gary Leroy Wilkeys commission of various offenses against Christine A. and Barbara G., a jury convicted him of five counts of spousal rape (Pen. Code, § 262, subd. (a)(1) — counts one through five), five counts of forcible oral copulation (§ 288a, subd. (c)(2) — counts six through ten), two counts of false imprisonment (& sect; 236 — counts eleven and twenty one), one count of making criminal threats (§ 422 — count thirteen), one count of attempting to dissuade a witness (§ 136.1, subd. (a)(2) — count fourteen), three counts of sexual penetration with a foreign object (§ 289, subd. (a)(1) — counts fifteen through seventeen), one count of sexual battery (§ 243.4, subd. (c) — count eighteen), and one count of forcible rape (§ 261, subd. (a)(2) — count nineteen). The jury also found that defendants offenses were committed against two or more victims within the meaning of section 667.61, subdivision (e)(5), the "one strike" law.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury acquitted defendant of count twelve (spousal rape) and count twenty (forcible sodomy).
Sentenced to state prison for 69 years to life, defendant appeals, contending reversal of his convictions is required because (1) the court abused its discretion by admitting evidence of prior uncharged acts of domestic violence, (2) the admission of prior sexual and domestic violence offenses to show propensity to commit such acts denied him due process, and (3) the court improperly instructed the jury with CALJIC Nos. 2.50.01 and 2.50.02 regarding the jurys use of uncharged acts of domestic violence and sexual offenses. We shall affirm the judgment.
FACTS
Charged Conduct
In June 1998 defendant was living with Jimmy Dozier and Doziers girlfriend, Barbara G., in the latter twos apartment. On June 27, while Dozier was away, defendant, his sister Tina, and Gary Leatherman were at the apartment ingesting methamphetamine. Barbara also was present but did not consume any of the drug. Shortly after ingesting the methamphetamine, Tina and Leatherman left.
Defendant told Barbara that Dozier was having an affair with another woman, and she began to cry. Defendant put his hand on her leg and his arm around her, but she told him that she just wanted to be left alone and went into her bedroom; however, he followed. Although Barbara tried to push defendant away and told him to leave her alone, he removed her pants and underwear and fondled her vagina. Although Barbara verbally and physically tried to resist defendant, over the next 30 minutes he repeatedly put his fingers in her vagina; tried to make her rub his penis because he wasnt erect; tried to force his penis into her mouth; put his tongue on her vagina; and put his penis, which was still not fully erect, in her rectum "just a little" and in her vagina. Defendant eventually left the apartment, and Barbara reported the assaults to defendants parole officer and the police.
Following a rape examination, the police assisted Barbara in setting up pretext telephone calls to defendant. During three calls Barbara accused defendant of forcing her to have sex with him. He repeatedly apologized, saying "it was wrong," it was "my fault," "I guess I was out of my mind," and blaming the assaults on "that fucking crank."
In February 2000 Christine A., the office manager for a drug rehabilitation program, met defendant, who was participating in the program. They married in July.
On August 11, 2000, Christine returned home from work and wanted to make dinner; however, defendant wanted to have sex and that is what they did. After the sex, which lasted about twice as long as normal, Christine wanted to prepare dinner, but defendant wanted to continue the sexual activity and refused to let her get up. Christine asked defendant to stop at least five times, but he would not. Defendant would insert his penis into Christines vagina, withdraw it and masturbate because he "kept being soft," and then reinsert it. During this time, defendants demeanor changed, and he was angry "like an animal just out of control."
After about two hours, defendant stopped and let Christine up. However, defendant was not finished — he yelled at her, called her names, and pushed her back onto the bed. For the next three hours, Christine fought with defendant to escape, but was unable to do so. During this time, he punched Christine in the eye, bruised her arms and upper chest, and at least five times attempted to put his penis in her mouth.
Christine eventually escaped and fled to the home of her neighbor, Dayle Pennington, a drug and alcohol counselor. She told Pennington of the physical abuse but was too embarrassed to tell him of the sexual assaults. She also said she thought defendant was on drugs. Following an "intervention," defendant entered a recovery program. After defendant was released from the program, he and Christine resumed their sexual relationship.
During the evening of October 6, 2000, following an argument, defendant telephoned Christine several times and accused her of being with another man. Defendant said he was coming home with a gun and was going to kill her and anyone else in the house. Christine was frightened and called the police. Defendant was taken into custody the next day.
Defendant made several telephone calls to Christine from jail, which were recorded. During these calls, defendant admitted being under the influence of drugs, forcing Christine to have sex with him, and calling and telling her that he had a gun and was going to kill everyone. He also asked her not to testify.
Uncharged Conduct
Yolisa L., who admitted prior convictions for burglary, theft, and conspiracy, testified that she lived with defendant for several years in the early 1990s, and both were using drugs, primarily methamphetamine. When defendant was on methamphetamine he was very aggressive, angry, and paranoid during sex, but Yolisa did not tell him to stop because she was afraid he would hit her.
In November 1994, after several days of methamphetamine use by both defendant and Yolisa, he went into a methamphetamine rage and beat her. The beating stopped when police arrived and arrested him. Another time, when Yolisa was giving defendant oral sex, he called his uncle and the uncles girlfriend into the room and asked them to join in. On another occasion, defendant hid beneath a couch in an attempt to catch Yolisa talking to another man on the telephone.
Defendant had difficulty maintaining an erection and frequently forced Yolisa to perform oral sex for such long periods that her lips would swell. Once, defendant accused Yolisa of being an imposter and said that if he killed her the real Yolisa would return; he then stabbed the chair in which she was sitting. Another time, when Yolisa was giving defendant oral sex, he put his fingers in her mouth to see if someone elses penis was there. He would threaten to "beat [her] ass" if she didnt perform oral sex on him. On another occasion, defendant struck her on the mouth or nose, causing blood to splatter, and then choked her to near unconsciousness. On still another occasion, defendant forced Yolisa to go naked into a dark room and simulate sex with another man. When she did so, he became angry, accused her of being unfaithful, beat her, and then had sex with her.
Defense
Defendant testified, admitting his drug abuse and having pleaded guilty to two counts of domestic violence against Yolisa. However, defendant denied ever actually being sexually violent with Yolisa or forcing her to orally copulate him. He also claimed that he never experienced difficulty maintaining an erection.
As to the incidents with Barbara G., defendant claimed that Barbara ingested methamphetamine with the others at her apartment. When defendants sister and Leatherman left, Barbara asked him to stay. They watched an X-rated movie, smoked more methamphetamine, and engaged in consensual fondling of each other but did not have sexual intercourse. Nor did he have any trouble maintaining an erection. During the tape-recorded conversations with Barbara, his primary concern was with being in jail; he was not paying much attention to what Barbara was saying.
Regarding Christine A., on August 11 he became upset at work when he discovered approximately $ 500 had been taken out of his paycheck for child support. Although he had been drug free for seven months, his anger caused him to use methamphetamine. When Christine got home they made love, but just as he was ready to climax she pushed him away. They argued, and she accused him of being on drugs and grabbed the keys to their truck. During a struggle over the keys, defendant might have accidentally struck her, but he did not prevent her from leaving the bedroom. As to the recorded telephone calls from the jail, defendant explained that he admitted forcing Christine to have sex with him because that is what she wanted to hear.
DISCUSSIONI
Prior to trial, the prosecution sought to introduce evidence of prior acts of sexual and domestic misconduct committed by defendant against Yolisa.
After hearing Yolisas proposed testimony, the prosecutor informed the court that there were four incidents about which she wanted Yolisa to testify — one, where defendant could not keep an erection and forced Yolisa to perform oral sex on him for an extended period of time; two, when Yolisa was performing oral sex and defendant placed his fingers in her mouth and accused her of having someone elses penis there; three, where he threatened to "beat her ass if she [didnt] perform oral sex upon him"; and four, where he made her undress and simulate having sex with someone else.
After hearing argument and weighing the proposed evidence pursuant to Evidence Code section 352, the court ruled that all four incidents were admissible on the charges involving Christine A., but only the sexual offense evidence was admissible as to the charges involving Barbara G.
Defendant contends the court abused its discretion by admitting the uncharged incidents requested by the prosecution because not only were the four incidents unduly prejudicial, but the additional testimony of Yolisa "went far beyond the four incidents initially outlined by the prosecution." We reject the contention.
According to defendant, these other incidents are: "1. He would get in a jealous, paranoid rage thinking someone was under the mattress. . . . [P] 2. They would start out having consensual intercourse, then it would become violent. She would not tell him to stop because he would hurt her. . . . [P] 3. Once, out of jealousy, he hid under the couch, apparently trying to catch her with someone else. . . . [P] 4. He always tore up her clothing so she had nothing to wear. . . . [P] 5. He was aggressive in sex. . . . [P] 6. In Jan. 1994, the police came because he was beating her up. . . . [P] 7. In Nov. 1994 the police came because they had been fighting, he was beating her up. . . . [P] 8. She was performing oral sex on him when his uncle came in and appellant asked if he wanted to join in. She was afraid to stop because he would hit her. . . . He would lose his erection and she had to perform oral sex for hours. . . . (Ostensibly, this was one of the four incidents in the prosecutions offer.) [P] 9. In 1995 he was arrested because he had been beating her. . . . He thought she was not the real Yolisa and threatened to kill her. . . . He stabbed her chair all around where she was sitting. . . . [P] 10. Once while she was orally copulating him, he thought someone elses penis was in her mouth along with his. . . . (This was another incident offered by the prosecution.) [P] 11. In 1995, he made her simulate having sex with someone else, then beat her up. . . . (This was another offer by the prosecution.) [P] 12. He beat her up in a model home. . . ."
First, "[a] reviewing court focuses on the ruling itself and the record on which it was made. It does not look to subsequent matters . . . . (People v. Douglas (1990) 50 Cal.3d 468, 542 [268 Cal.Rptr. 126, 788 P.2d 640] (conc. opn. of Mosk, J.).)" (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 864 P.2d 40, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, 952 P.2d 673.) Consequently, as to those matters testified to by Yolisa at trial that were not before the court as part of the prosecutors offer of proof, namely, incidents 1 through 7, 9, and 12 (see fn. 3, ante), they had no bearing on the courts pretrial ruling. Therefore, we do not consider them with respect to this challenge.
Second, because defendant failed to object to incidents 1 through 7, 9, and 12 when they were testified to by Yolisa, he has waived any challenge to their admissibility. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 547-548, 146 Cal. Rptr. 732, 579 P.2d 1048 [questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal].)
Thus, our review of defendants challenge to the propriety of the courts pretrial ruling admitting Yolisas testimony is limited to the offer of proof that was before the court at the time it made its ruling. That evidence consisted of the proposed testimony of Barbara G. and Christina A. regarding the charged acts, and the proposed testimony of Yolisa relating the uncharged acts.
Where, as here, a defendant is charged with both sexual and domestic violence offenses, Evidence Code sections 1108 and 1109 allow evidence of the defendants commission of other uncharged sexual offenses and/or acts of domestic violence to show his propensity to commit such offenses, unless the evidence is inadmissible pursuant to Evidence Code section 352. By its express terms, section 352 vests the trial court with discretionary authority to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The trial courts determination whether to exclude evidence under section 352 will not be reversed on appeal absent a showing of abuse of discretion. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)
Defendant argues the court abused its Evidence Code section 352 discretion because the four proffered incidents (1) were too inflammatory, (2) bore little relevance to the charges, (3) placed him in a position of unfairly having to defend against the uncharged acts, and (4) risked confusing the issues. Defendant also argues that the fact the incidents were relatively recent does not make them admissible. As to each argument, we disagree.
According to the Peoples offer of proof, Barbara G. would testify that defendant ingested methamphetamine; that after rebuffing his sexual advances, he forcefully removed her pants and underwear; that he had difficulty maintaining an erection; that he forcefully inserted his fingers into her vagina several times; that he directed her to "play with herself" while he masturbated; that he orally copulated her; that he forced her vagina open with both hands and inserted a hard cold object; that he tried to force her to rub his penis; that he attempted to put his penis in her mouth; that he tried to sodomize her; and that during this time she was crying and trying to push him away.
Christina A. would testify that after she and defendant consensually "made love," he acted as though he was on drugs; that he refused to let her up and then began raping her; that because he was unable to maintain an erection, on at least five occasions he removed his penis and either masturbated himself or tried to force his penis into her mouth; that this conduct continued over a two— to three-hour period during which time she was screaming, crying, and asking him to stop; and that at some point during the assaults he struck her, causing a black eye.
At the hearing, Yolisa testified to the four incidents the prosecutor sought to have admitted, namely: (1) defendant forced her to perform oral copulation over an extended period of time because he couldnt maintain an erection; (2) while he was receiving oral sex he placed his fingers in her mouth and accused her of having someone elses penis there; (3) he threatened to use physical force on her if she didnt perform oral sex on him; and (4) he made her undress and simulate sex with someone else.
Inflammatory Nature of the Uncharged Offenses
In evaluating prior uncharged acts pursuant to Evidence Code section 352, it is important to determine whether "the testimony describing defendants uncharged acts . . . was no . . . more inflammatory than the testimony concerning the charged offenses." (People v. Ewoldt (1994) 7 Cal.4th 380, 405, 867 P.2d 757 (Ewoldt ).)
According to the Peoples offer of proof, the assaults on Barbara involved defendants forcibly inserting his fingers, tongue, and penis into her vagina; his forcing his penis into her rectum; and his attempting to force her to orally copulate him. The assaults on Christina involved defendants raping her, and his repeated removal of his penis from her vagina and either masturbating himself or trying to force his penis into her mouth.
The incidents with Yolisa involved oral copulation, or demands for such, coupled with the bizarre behavior of placing his fingers in her mouth and accusing her of orally copulating someone else as well as making her simulate sex with another man. The incidents with Yolisa, although exhibiting bizarre behavior, were certainly no more inflammatory than the varied and brutal sex offenses defendant forcibly committed on Barbara and Christina.
Relevance of the Uncharged Offenses
Evidence of a defendants uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that if he committed one he also committed the other. (Ewoldt, supra, 7 Cal.4th at pp. 401-402.)
Common to the charged and uncharged acts were defendants ingestion of methamphetamine, his change of demeanor when under the influence of methamphetamine, his inability to maintain an erection when under the influence of methamphetamine, and his demands for oral copulation to assist him in obtaining an erection. Such commonality tends to show that if defendant committed the uncharged offenses, he likely committed the charged ones. Consequently, the uncharged conduct was relevant to prove the charged offenses. (See Evid. Code, § 210 [relevant evidence is evidence that has a tendency in reason to prove or disprove a disputed fact in the case].)
Remoteness of the Uncharged Offenses
"`Remoteness or `staleness of prior conduct is an appropriate factor to consider in a[n Evidence Code] section 352 analysis." (People v. Harris (1998) 60 Cal.App.4th 727, 739.) Defendant concedes that the conduct with Yolisa was not too remote but claims, albeit without supporting argument, that the lack of remoteness is "not enough" to permit its admissibility. Even if defendant is correct in his assertion, in this case there is more. In addition to the uncharged incidents lack of remoteness, as noted above, they share common characteristics that make them highly relevant in determining whether he committed the charged offenses.
Burden of Defending Against the Uncharged Offenses
Defendant contends he was placed at a prejudicial disadvantage by having to defend against the uncharged acts, whose certainty of having occurred was "minimal" because no corroboration was presented. He argues that Yolisas testimony was "so vague" about when and what took place that it was "virtually impossible to conduct an effective cross-examination [of her]," and that difficulty increased because "each time she testified, facts changed and expanded."
To the extent Yolisas testimony was vague and inconsistent, as claimed by defendant, this would obviously be to his advantage in attacking her credibility and to the prosecutions disadvantage in supporting it. Moreover, since the four incidents sought to be admitted by the prosecution allegedly occurred when defendant and Yolisa were alone, challenging her credibility was greatly simplified by the prosecutions inability to produce any corroborating evidence. And as to the certainty of the commission of the proffered incidents, the court instructed the jury that it was the prosecution who bore the burden of proving, by a preponderance of the evidence, that the acts occurred.
Consequently, the reasons advanced by defendant fail to place him at a disadvantage in defending against the uncharged acts.
Likelihood that the Uncharged Offenses Could Confuse, Mislead or Distract the Jury
Where the uncharged offenses did not result in a conviction, there is an increased danger that the jury might be inclined to punish the defendant for the uncharged offenses whether or not it considers him guilty of the charged offenses, and an increased likelihood the jury might confuse the issues because it has to determine whether the uncharged offenses occurred. (Ewoldt, supra, 7 Cal.4th at p. 405.)
Defendant claims that since the uncharged sexual offenses were not the basis for his two domestic violence convictions, the danger of confusion and punishment warned against in Ewoldt was such a distinct possibility that it required their exclusion.
First, as previously noted, the four offered incidents involving Yolisa were no more inflammatory than the proffered evidence of the brutal and prolonged attacks on Barbara and Christine. Second, the court knew it had an abundance of instructions to protect defendant against juror misuse of Yolisas testimony. Thus, the court instructed the jury that, to the extent they believed Yolisas testimony, that testimonys use was limited to determining if defendant used a common method in committing the offenses; to showing that he did not have a good faith belief that the charged offenses were consensually engaged in by Barbara and Christine; and to showing a propensity to commit domestic violence and sexual offenses. Consequently, defendant could be, and indeed was, adequately protected against the jurors misuse of Yolisas testimony.
Harmless Error
Finally, even if we found that the court abused its discretion in admitting Yolisas testimony, we would find the error harmless. Of no little import is the fact that in a series of telephone conversations with Barbara and Christine that were recorded without defendants knowledge, he admitted sexually assaulting each woman, apologized, and blamed it on the methamphetamine he had ingested. These admissions, coupled with the testimony of Barbara and Christine relating similar assaults under similar circumstances, render the evidence overwhelming against defendant. Therefore, even if the court had erred in admitting Yolisas testimony, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 87 S. Ct. 824].)
II
Defendant contends that the admission of other crimes evidence to establish propensity to commit those types of crimes (Evid. Code, §§ 1108, 1109) violated his due process rights under the United States Constitution. However, defendant acknowledges that, at least as to sexual offenses (Evid. Code, § 1108), the contention has been rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 986 P.2d 182. He likewise recognizes that we are bound by Falsettas holding, which of course we are. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) Hence, as to Evidence Code section 1108, that is the end of the matter insofar as this court is concerned. And as to Evidence Code section 1109, although defendant makes no separate argument as to how evidence admitted under this section constitutes a due process violation, we abide by our decision in People v. Johnson (2000) 77 Cal.App.4th 410, 420, wherein "we conclude Falsetta, by parity of reasoning, supports upholding the constitutional validity of Evidence Code section 1109 against a due process challenge."
III
The trial court instructed the jury with the 2000 revision of CALJIC Nos. 2.50.01 and 2.50.02, relating to the jurys use of uncharged sexual and domestic violence offenses, as well as with CALJIC Nos. 2.50.1 and 2.50.2, informing the jury that the prosecution bears the burden of proving the uncharged sexual and domestic offenses by a preponderance of the evidence and defining preponderance of the evidence.
Defendant contends these instructions were misleading and resulted in a lessening of the prosecutions burden of proof, thereby violating his due process rights. According to defendant, the instructions were misleading in that they permitted the jury, if it found by a preponderance of the evidence that the uncharged offenses occurred, to infer that he did commit the crimes of which he is accused. Defendant is wrong.
Following the filing of the briefs in this case, the California Supreme Court rendered its decision in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), which addressed and rejected defendants argument in the context of the 1999 revision of CALJIC Nos. 2.50.01, relating to uncharged sexual offenses admitted pursuant to Evidence Code section 1108. (Reliford , supra, 29 Cal.4th at p. 1009 ["we conclude that . . . the 1999 version of CALJIC No. 2.50.01 correctly states the law"].) Hence, insofar as CALJIC No. 2.50.01 is concerned, the matter has been settled adversely to defendant. And again, by parity of reasoning, CALJIC No. 2.50.02, which is the domestic violence counterpart to CALJIC No. 2.50.01, likewise correctly states the law.
Although it was the 1999 revision of CALJIC No. 2.50.01 that was at issue in Reliford, the 2000 revisions of CALJIC Nos. 2.50.01 and 2.50.02 do not affect the analysis herein.
DISPOSITION
The judgment is affirmed.
We concur HULL, J., and ROBIE, J.