Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE403908
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Lonell Ray Woodrich had numerous relationships with women, including marrying one woman, Teresa, while at the same time living some days of the week with other women with whom he had long-term relationships, including Michelle, Carol, and Renee Edwards. According to Michelle and Teresa, defendant committed several uncharged sexual offenses in which they were the victims, including forcing them to have unwanted sex in their homes. Teresa’s daughter, V., recalled that defendant had molested her when she was 12 years old and living with her mother. While defendant was living with Carol, he met 54-year-old Kim, Carol’s sister-in-law, who was also living in the home. According to Kim, defendant committed numerous instances of sexual misconduct with her when they were alone in the house, including groping her breasts and buttocks, exposing his penis, attempting oral copulation, attempting rape and causing a broken rib, and digital penetration. When police officers attempted to arrest defendant for the offenses involving Kim, defendant ran from the officers, resisted arrest, and threatened one of the arresting officers, Officer Darren Pang.
After a lengthy jury trial in which Michelle, Teresa, and V. testified regarding the uncharged sexual offenses committed by defendant, he was convicted of three felony offenses in which Kim was the victim, including sexual penetration by force or fear (Pen. Code, § 289, subd. (a)(1); assault with intent to commit rape, with the additional allegation that defendant inflicted great bodily injury (§§ 220, 12022.7, subd. (a), 1203, subd. (e)(3)); and assault with intent to commit oral copulation (§ 220). Defendant was also convicted of a felony offense in which Office Pang was the victim, threats to commit a crime resulting in death or great bodily injury (§ 422). Additionally, defendant was convicted of three misdemeanor offenses, including two in which Kim was the victim-- sexual battery (§§242, 243.4, subd. (e)(1)) and indecent exposure (§ 314.1) and resisting arrest (§ 148, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court found true the allegations that defendant had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), three prior serious felony convictions (§§ 667, subd. (a), 1192.7) and had served two prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total prison term of 100 years to life, consecutive to a determinate term of 67 years.
On appeal, defendant contends that the convictions should be reversed because (1) the trial court erred in admitting 17 audio recordings of jail telephone calls and visits involving defendant; (2) the trial court erred in admitting evidence of uncharged prior sexual offenses; (3) there was insufficient evidence to prove assault with intent to commit rape; (4) the trial court erred in denying defendant’s motion to sever count 7, criminal threats; and (5) the cumulative effect of the errors requires reversal. For the reasons stated below, we find no merit in defendant’s contentions and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The first amended information filed on February 22, 2008, charged defendant with five felony offenses, including sexual penetration by force or fear (§ 289, subd. (a)(1); counts 1 and 4); assault with intent to commit rape, with the additional allegation that defendant inflicted great bodily injury (§§ 220, 12022.7, subd. (a), 1203, subd. (e)(3); count 5); assault with intent to commit oral copulation (§ 220; count 6); and threats to commit a crime resulting in death or great bodily injury (§ 422; count 7). The first amended information also charged three misdemeanor offenses, including sexual battery (§§ 242, 243.4, subd. (e)(1); count 2); indecent exposure (§ 314.1; count 3); and resisting arrest (§ 148, subd. (a)(1); count 8).
The additional allegations in the first amended information included three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) for twice dissuading a witness by force and false imprisonment with use of a deadly weapon, three prior serious felony convictions (§§ 667, subd. (a), 1192.7) for twice dissuading a witness by threat of force and false imprisonment with use of a deadly weapon, and two prior prison terms (§ 667.5, subd. (b)).
A second information was filed during the course of the jury trial, on May 27, 2008, that amended the dates of the offenses. Count 1, sexual penetration by force or fear, was alleged to have occurred on or about or between September 1, 2002, and November 22, 2003; count 2, sexual battery, was alleged to have occurred on or about or between January 1, 2003, and November 5, 2004; count 3, indecent exposure, was alleged to have occurred on or about or between September 1, 2002, and November 5, 2004; count 4, sexual penetration by force or fear, was alleged to have occurred on or about or between November 23, 2003, and November 8, 2004; count 5, assault with intent to commit rape, was alleged to have occurred or about November 5, 2004; and count 6, assault with intent to commit oral copulation, was alleged to have occurred on or about November 9, 2004. Count 7, criminal threats, and count 8, resisting arrest, were both alleged to have occurred on or about December 15, 2005.
All of the sexual offenses charged in counts 1 through 6 involved the same victim, Kim.
For purposes of protective nondisclosure, we will refer to the victim by her nickname, Kim, as reflected in the record on appeal.
B. Pretrial Motions
Both parties made several pretrial motions. Three of defendant’s pretrial motions are significant to the present appeal, including the motion to exclude the audio recordings of jail telephone calls and visits involving defendant, the motion to exclude evidence of prior uncharged sexual offenses, and the motion to sever counts 7 and 8.
Regarding the audio recordings of the jail telephone calls and visits, defendant argued that the recordings were inadmissible because they were irrelevant and the statements of persons other than defendant in the recordings were hearsay. Also, to the extent the People were offering the jail recordings to show that defendant was attempting to suborn perjury by a witness, defendant noted that he had not been charged with suborning perjury. Defendant also objected to the admission of the jail recordings on the ground that they would reveal that he was in custody. The trial court determined that the jail recordings were admissible under Evidence Code section 352.
Defendant’s motion to exclude evidence of prior uncharged sexual offenses sought to exclude evidence concerning Michelle, his former girlfriend; Teresa, his former wife; and V., Teresa’s 12-year-old daughter. He argued that the evidence regarding all three alleged victims was more prejudicial than probative in light of their dubious claims. The trial court ruled that all three witnesses could testify under Evidence Code section 1108.
The motion to sever count 7 (criminal threats) and count 8 (resisting arrest) was based on defendant’s contention that these offenses were a different class of crimes than the sexual offenses charged in counts 1 through 6 and there was no cross-admissibility of evidence. The trial court denied the motion after finding that counts 7 and 8 were relevant to counts 1 through 6.
C. Trial Evidence
1. Uncharged Sexual Offenses
Michelle testified that she first met defendant in 1981. They lived together on and off for 11 years and had two children, including her daughter, K. Defendant hit Michelle and forced her to have sex for the first time about six months after they met. Throughout their relationship, when Michelle was living in Mountain View or Sunnyvale, after they argued defendant would hit Michelle, throw her on the bed and force her to have sex. Defendant forced Michelle to have sex about 50 times. He also punched her in the stomach when she was pregnant. She never told anyone about the rapes until recently, in connection with this case, because she was scared. Also, Michelle stayed in love with defendant because sometimes he was “nice and romantic and sweet” and she was always hoping that he would be that way again.
In 1992, Michelle moved out of the Bay Area. She allowed her daughter, K., to visit defendant in 1995. After 1995, Michelle had telephone conversations with defendant that included talking about sex. She also wrote a letter to defendant dated June 3, 1999, in which she said, among other things, “ ‘I love you so much I can’t wait to truly make love to you like only we can.’ ” Michelle could not understand why she retained positive feelings for defendant after what he did to her, other than the fact that he is the father of her children.
During his 11-year relationship with Michelle, defendant also lived at other women’s houses. One of those women was Teresa, who married defendant in 1991 and divorced him in 2001. Teresa testified that she and defendant had one son together. Teresa also had another son and a daughter, V. During the marriage, the couple did not actually live together. Defendant would visit occasionally and sleep in her house one to three nights a week. He also sometimes took care of the children. Michelle’s daughter, K., came to visit during Christmas of 1995 for two or three nights.
Around 1996 or 1997, V. was 12 years old and Teresa was living in Sunnyvale. When defendant visited he would sleep in her mother’s bedroom, while V. would sleep on the couch in the living room. Teresa allowed defendant to take 12-year-old V. out by herself on three occasions because he wanted to teach V. to drive and V. wanted to go with him.
Defendant had sexual intercourse with Teresa against her will two or three times. He would threaten her that if she did not have sex with him he would call the INS to pick up her brothers or he would tell her that he was going to steal her son. At other times, when Teresa did not want to have sex, defendant would talk to her “real sweet” and they would have consensual sex.
We understand Teresa’s reference to the INS to refer to the former United States Immigration and Naturalization Service (now encompassed by the United States Department of Homeland Security).
After Teresa’s marriage to defendant, he told her that Carol was his ex-wife. He also told her that Carol was his cousin. One night in 1997, Carol and defendant were waiting for Teresa when she got off her shift at Costco. Defendant said he wanted to prove to Teresa that V. was lying when she said that defendant had molested her. He also said that he would pay for V. to go to Mexico, which was Teresa’s homeland.
During the period of 2003 and 2004 defendant was working near Teresa’s house. He would spend the night with her two or three times a week and they would have consensual sexual intercourse. Thereafter, Teresa visited defendant in jail in Santa Clara County many times before the trial in this case. During her jail visits, she twice saw Carol. Teresa also accepted collect calls from defendant for about a month when he was in jail, but then stopped accepting his calls due to the expense. Although Teresa started to hate defendant in 1995 after “what happened, that thing with my daughter,” she visited him in jail because she “was feeling love for him.”
V. testified that when she was 11 years old and living with her mother in the family apartment in Sunnyvale, defendant touched her on her breast and vagina when she was sleeping on the couch. That happened almost daily, too many times to count. On one occasion, defendant put his tongue in her vagina. V. also went with defendant in a car because he was going to teach her to drive. He would sit V. on his lap and as they were driving around, defendant would touch her breasts.
At the time defendant was touching her inappropriately, V. told defendant’s daughter, K., who had come to live with them for a short time, about it. V. did not tell her mother about defendant’s inappropriate touching because she was scared. V. was also afraid that defendant would hurt them, since she had seen defendant beat her mother and choke her. However, V. told police about defendant’s inappropriate touching when she was 13 years old. At some point, V. became sick of her mother and defendant fighting and wanted defendant to leave. However, she did not make up a story about defendant’s inappropriate touching in order to stop her mother from having a relationship with defendant.
In his testimony, defendant denied having a romantic relationship with Michelle, whom he described as “another lady on the team.” Defendant admitted that he had pushed and slapped Michelle, but he denied ever raping her. During his relationship with Michelle, defendant had six other women in his life, including Teresa and Carol. Michelle became aware that defendant had other women when she was pregnant. Defendant believes that Michelle was mad because two of the other women were also pregnant. Defendant admitted that in 1990 he was convicted of threatening Michelle as a witness.
As to Teresa, defendant testified that after he married her in 1989, she became jealous of the other women. They would get into fights and he would slap, push, and choke her. V. was present when Teresa and defendant were physically fighting and would be very upset. After their fights, defendant would talk to Teresa “romantically” and they would have sex. He never threatened to call the INS about her brothers. Defendant admitted that in 1993 he was convicted of threatening Teresa as a witness.
In his testimony, defendant denied ever doing anything inappropriate with V.
2. The Alleged Sexual Offenses
Betty is the mother of two adult children, Carol and Larry. Betty testified that between 1976 and 2005, she lived in a house in Sunnyvale. Kim, the alleged victim, moved into the house before she and Larry were married in 2003. Around that time, the household also included Carol, defendant, and their children Ericka, Samantha, Kathleen, and baby Eduardo. Betty had the master bedroom; Carol, defendant and Eduardo shared another bedroom; Samantha and Kathleen had the third bedroom; Larry and Kim lived in the converted garage; and Ericka slept on the sofa bed in the living room. Kim sometimes called Betty “Mama.” They had difficulty communicating because Kim spoke Vietnamese and very little English.
During a hearing outside the presence of the jury, Carol invoked her Fifth Amendment right not to incriminate herself and the trial court declared her unavailable as a witness.
For the sake of protecting the victim’s identity, and intending no disrespect, we will refer to Betty, Carol and Larry only by their first names.
One day, early in the morning, Betty woke up because Kim was screaming loudly and saying, “ ‘Mama, Mama.’ ” Betty came out of her room and saw defendant carrying a bottle of milk for the baby, Eduardo. Kim came to Betty’s bedroom door, wearing pajamas or a short nightgown and appearing very upset. According to Betty, Kim said that defendant was bothering her while defendant said that he had not done anything. Based on her observations, Betty thought that defendant and Kim had a good relationship prior to that incident.
Kim testified that in 2004, she was about 54 years old and weighed 110 pounds. She married Larry in November 2003 after living with him in Betty’s household for less than one year. Two incidents involving Kim and defendant occurred in 2004. The first incident took place when Kim was in the kitchen of the Betty’s house doing the dishes. Defendant was the only other adult at home at that time. He told Kim that he wanted to sleep with her and said, ‘ “Just try it, don’t be afraid.’ ” When Kim cursed at him and called him crazy, defendant picked her up by putting his arms around her chest while standing behind her. When he picked her up, defendant said, “ ‘Let’s try it. Don’t worry, let’s try it.’ ” Defendant then carried Kim towards the living room, which had a sofa bed. Kim told him to put her down because he was hurting her, but defendant said, “ ‘Let’s go and have it, don’t be afraid.’ ” Kim resisted by putting her foot on the refrigerator and telling defendant to put her down. Defendant then dropped her, said he was sorry, and left.
The pain in her side that Kim felt when defendant picked her up persisted and she went to a doctor. Julia Shuleshko, M.D., testified that she is an emergency medical physician who saw Kim on November 9, 2004. Kim complained of upper abdominal pain on the right side from an injury that she had sustained five days ago. She told Dr. Shuleshko that she was injured “ ‘when her sister-in-law’s boyfriend picked her up by the torso in an attempt to rape her.’ ” Dr. Shuleshko determined from x-rays that Kim had a tenth rib fracture with no signs of healing, which indicated that the fracture had probably occurred one to two weeks before the x-rays were taken.
Before the incident in the kitchen where defendant picked Kim up, defendant had touched her in other ways that she did not like. One time when she was doing dishes in the kitchen defendant grabbed her breast and said, “ ‘Let’s go and screw.’ ” On many occasions, defendant would look around and when nobody else was there, he would grab her buttocks, breasts, her anus, and her “private area.” These incidents occurred both before and after her wedding to Larry in November 2003, starting about two months after she moved into Betty’s house.
Another incident occurred when Kim was watering plants in the backyard and defendant grabbed her and put his finger in her vagina. She was not wearing any underpants and that was the only time defendant’s finger went all the way into her vagina. On another occasion, defendant picked Kim up from work because she was sick and needed to go home. Instead of taking her home, defendant drove around and grabbed her breast with one hand. The only time that Kim saw defendant’s private parts was during an incident in which defendant pulled his penis out of his pants, slapped it on the table and said, “Look, this is how big I am. How come you don’t like it?”
The last incident involving Kim and defendant occurred after the incident in which her rib was broken. At around midnight or 1:00 a.m., Kim was studying at a table inside the house when defendant came in. Kim was scared and stood up. Defendant then kneeled down, flipped the skirt of her nightgown up, pulled her underpants down, and touched his face to her pubic area. Kim was angry and asked him what he was doing. Defendant replied that he loved her and told her not to call anyone. He also threatened to kill her husband. Kim was in pain because defendant had hurt her ribs the day before. She ran away and screamed for Betty and her husband. Defendant told her not to scream, then opened the refrigerator and pretended to get milk for his child. After Betty and her husband came out of their rooms in response to her screaming, Kim called the police. When the police arrived, Kim spoke to them in English. Defendant was present but later left and never lived in Betty’s house in Sunnyvale ever again.
Police Officer David Sakurai responded to the house on November 9, 2004. Larry was his primary contact. Larry told Officer Sakurai that there had been a verbal argument between Kim and defendant, while Kim said that defendant had touched her inappropriately and tried to pull her pants down. Although Officer Sakurai had trouble communicating with Kim, he did not seek the assistance of a Vietnamese translator.
Kim made a cassette tape recording of defendant talking to her one day when she was sitting at the kitchen table doing homework. She hid the recorder in her clothing and defendant did not know that he was being recorded. On the tape, defendant said that he loved her. Kim made the tape recording because she had been told that she did not have any evidence to prove what defendant was doing to her. She eventually gave the recording to the police. During the trial, the tape was entered into evidence and played for the jury.
Kim denied that she had ever gone to a shopping mall with defendant. He attended her wedding with his children although he had not been invited. Defendant also went on a family fishing trip with Kim and Larry after inviting himself on the trip. When Kim’s niece, Thuy Tran, offered to have Kim move in with her after hearing from Kim what defendant had done, Kim refused because she loved her husband and did not want to leave him.
Thuy Tran has a master’s degree in social work and is employed as a social worker. In her testimony, Tran recalled some things that Kim, her aunt, had told her about what was going on at the house where Kim lived with Larry. Sometime at the end of 2002, Kim told Tran that she was very unhappy because the boyfriend or husband of Larry’s sister had been groping her. Kim and Tran had three or four telephone calls in which Kim stated she was very miserable and she was tired of what defendant was doing. During one telephone call, Kim was crying and emotional and said that her side hurt because he had squeezed her really hard. At some point, Kim also told Tran that she had recorded defendant.
In his testimony, Larry recalled that he had met Kim three or four weeks after she came to this country in June 2002. She moved into Betty’s house with him about five or six months after they met, in late 2002. Defendant had moved into the house much earlier, sometime prior to 1991, although, as described by Larry, he “floated in and out.” Everyone in the household got along, but about six or eight months after Kim moved in, that changed. Kim became afraid, did not like being alone in the house, and would lock herself in their bedroom. Sometime in the summer of 2003, Kim told Larry why things had changed for her. She said that defendant had been grabbing at her buttocks and chest or lifting her dress for a long time, and that the grabbing would occur when she was cooking or by herself. Kim also said that defendant tried to stick his finger in her vagina and “swipe it and smell it and say, ‘Um,’ like that.” Defendant also pulled his penis out and said “ ‘Hey, look, I got something like your husband don’t got.’ ”
Kim complained to Larry that this kind of conduct happened often. However, Larry did not know what to do about it and they could not afford to move out. After Larry told Kim that nobody would believe her without any evidence, she came up with the idea of recording her conversations with defendant with the tape recorder he had bought for her to use at school. Larry kept the tape recording that Kim had made of her conversation with defendant and turned it over to the police.
At some point, Larry confronted Carol and defendant about defendant’s behavior with Kim. In November 2004, Larry took Kim to the police department after defendant had physically hurt her. Before going to the police department, Larry took Kim to the hospital because she was complaining of pain in her side. Kim told him that defendant had grabbed her and picked her up when she was cooking and that she had screamed and put her feet up on walls to stop defendant from going any further.
The police came to the house, Larry further recalled, after an incident in which defendant apparently pulled Kim’s pants down in the middle of the night. Larry woke up when he heard Kim screaming. He got out of bed to investigate and saw Kim in the kitchen with Betty and defendant. Kim was saying that defendant had pulled down her pants and was trying to “stick his head in there.” The police arrived about 15 minutes later. Defendant left that morning and never returned to the house, although Carol and their children continued to live there until Betty sold the house in 2005.
Todd Fekete, a police officer employed by the Sunnyvale Department of Public Safety, testified regarding his response to a call on November 7, 2004, to take an initial report regarding an incident at the house in Sunnyvale. Officer Fekete interviewed Kim, with her husband Larry present, at the police department. Kim appeared to be very emotional. Officer Fekete had difficulty communicating with her because her English was not good, so he conducted the interview through a Vietnamese language interpreter at the AT&T telephone language line.
During Officer Fekete’s interview, Kim said that she defendant had been sexually assaulting her, starting almost immediately after she moved into the household in October 2003. She described the sexual assaults as defendant touching her breasts and buttocks any time they were alone. Kim also reported that in February 2004 defendant pulled her dress up and touched her vagina with his fingers while she was doing dishes. On several other occasions, defendant showed her his penis and said she would like it much better than her husband’s.
Kim further reported to Officer Fekete that all of the assaults happened in the home, except for an incident in which defendant had picked Kim up from work and exposed his penis in the car. When Kim threatened to tell police, defendant responded that she had no proof. And when she told her husband, he did not know what to do about it. Kim decided to contact the police after an incident on November 5, 2004, when defendant injured her. That incident took place after defendant knocked on Kim’s door and said he had mail for her husband. Kim stepped out of the room because her puppy had run out and saw that defendant had no mail. Defendant then grabbed her forcefully around the waistline and would not let her go. Kim struggled and kicked a nearby refrigerator, which caused defendant to release his grip.
After she went to the hospital on November 7, 2004, Kim came back for a follow-up interview with Officer Fekete. At that time she gave him a microcassette recording that she had made in September 2004. Kim also reported that a new incident had occurred around 2:00 a.m. when she went to the dining room table to study because she was having trouble sleeping. Defendant came up to her, pulled her away from the table and apologized for hurting her, then got down on his knees, pulled her pajama bottoms down and tried to lick her vagina. Kim started screaming for her husband and mother-in-law to tell defendant to stop. As soon as she started screaming, defendant stopped what he was doing and went to the refrigerator, grabbed a baby bottle and started going back to his bedroom. Following the interview, Officer Fekete prepared an emergency protective order but never served it on defendant. Defendant did not show up for a scheduled interview with Officer Fekete, hung up when the officer made telephone contact, and failed to return further telephone messages.
Defendant testified at trial regarding his relationships with women. Between 2002 and 2004, defendant lived with several different women, including Sheri in Santa Rosa, Teresa and Carol in Sunnyvale, and Renee in Berkeley. He has a total of 14 children, including four children with Carol (Samantha, Kathleen, Eduardo and Ericka). All of the women were his girlfriends or the mothers of his children.
Defendant’s testimony included a different version of his relationship with Kim, whom defendant asserted was lying in all of her testimony. Defendant first met Kim in 2002 when Larry introduced her to the family. Kim moved into the house about two weeks later. Defendant began to interact with Kim sometime in 2003 when he came home early one morning and found her crying in the living room. Defendant tried to talk to her but she did not respond. He found her crying outside the house on another occasion when he came home from work early in the morning. Kim was mad at Larry and she and defendant sat inside his truck talking. When Kim had another fight with Larry at a later date in 2003, defendant asked her if she wanted to go somewhere and talk. The time was midnight and they went to the parking lot at the Westgate Mall, where they hugged and kissed. Sometime later, Kim asked for defendant’s cell phone number and he gave it to her.
After that, their relationship became more intimate, according to defendant. He had sexual intercourse with Kim about 10 times, with the last time taking place before Kim married Larry. They also had oral sex about four times. After her marriage, Kim kept calling defendant and he told her she would be committing adultery. However, the real reason that defendant did not want to be with Kim was that he was “tired of playing the game.” He played with her emotions by promising to help her move away and promising her a diamond ring, then failing to keep his promises. Defendant also gave Kim rides to the store and picked her up at work a few times. One day in 2003 they went to the Southland Mall when defendant was pretending to buy Kim a diamond ring and ran into Renee Edwards, defendant’s former girlfriend. Defendant told Renee that Kim was his business partner. After that encounter, Renee and defendant resumed their relationship. During his testimony, defendant also admitted that he had been convicted of committing battery on Renee in 1993 and threatening her as a witness in 1992.
In 2003, defendant was still “playing the role” with Kim. She had indicated that she wanted to have a more serious relationship with defendant and had asked him when she would be able to move out. Defendant told her he had a “place already prepared” and took her to see his sister’s house in San Jose. Defendant’s sister, Juanita McFerrin, testified that defendant is her twin brother. Sometime in 2003 or 2004, defendant brought a young lady to her house in San Jose. She thought the young women was probably Filipino and spoke with a Spanish accent. In his testimony, defendant recalled that he was engaged to a Filipino woman named Imelda in 2004.
Defendant denied having ever exposed his penis to Kim except during sex. He also denied ever putting his fingers in her anus or vagina when she was wearing underwear or putting his finger in her vagina when she was in the garden. They did kiss in the backyard and were seen kissing by Samantha, his daughter. As to the incident in the kitchen on November 9, 2004, defendant denied pulling down Kim’s panties. Defendant stated that he came into the kitchen at about 2:00 a.m. to get the baby’s bottle when Kim was there and she just started screaming. After giving the baby his bottle, defendant came out of his room. By that time, Betty and Larry were present, as were the children and the police. Defendant saw that Ericka was asleep in her car outside and brought her into the house. Carol came home from work after the police arrived. Two or three days before the police were called to the house on November 9, 2004, defendant had tried to “crack” Kim’s back. She said her back was hurting and so defendant picked her up with a Heimlich-type maneuver.
Samantha testified that she is the daughter of defendant and Carol. She lived at Betty’s house in Sunnyvale from 2002 through 2004. Defendant was not present all the time at the house because he was “always working” at the Dodge dealership in Sunnyvale. Samantha did not like Kim. Kim did things for defendant like cooking unnecessary food and asking Larry to bring defendant along on their family fishing trips. Also, one day in 2004 she saw Kim and defendant in the backyard and Kim was leaning towards him.
Samantha also recalled the evening that the police came to the house. Before the police came, Samantha was awake in her bed and heard her brother crying and defendant coming out of his room. She then heard the sounds of the refrigerator being opened and juice being poured. After that, Samantha heard Kim screaming and saying stop. Samantha got up and opened the door to her bedroom after she heard her grandmother come out. When the police came, Kim told them that defendant hurt her, raped her, and broke her back. Kim was crying but Samantha believes that Kim was faking.
Defendant moved out of the house after the police came because, as he told Samantha, he did not want any problems. Samantha loves her father and blames Kim for causing him to move out by lying about what her father did. After the family moved out of the Betty’s house in 2005, Kim offered Samantha money three or four times and told her not to tell her mother.
Defendant’s daughter Ericka also testified. Carol is Ericka’s mother. Ericka grew up in Betty’s house in Sunnyvale and was living there in 2004. She got along with everyone, including Kim. Kim tried to be nice to Carol’s children. She offered them money and told them not to tell her parents. However, Kim did not ask for anything in return. Kim also invited them, including defendant, to go fishing with her and Larry. Kim was also acted “nice” around defendant.
One night Ericka was outside the house sleeping in her car when the police arrived. Her father woke her up and told her there was situation with him and Kim. He said that Kim was claiming that he had pulled down her pajamas and put his face in her vagina. Ericka went inside the house and found everyone up except Kathleen and Eduardo. Kim seemed confused. Defendant moved out of the house after that night but continued to visit twice a week.
About four to six months after the police came to the house, Ericka heard a message that Kim had left on defendant’s cell phone. In the message, Kim said that she was sorry and she could make it better and it would all go away. A couple of months later, Ericka heard another message that Kim had left on defendant’s cell phone, in which Kim said that she wanted to be with defendant. In one of the messages Kim also said that she was going to make life miserable for the family. Ericka overheard the messages when her mother, Carol, and defendant were playing them in their bedroom. Ericka thought her mom was going to give the cell phone messages to the police.
No cell phone messages were introduced at the trial.
Defendant testified that Kim left a message on his cell phone on November 10, 2004, saying she could “ ‘make it up to you.’ ” No one other than Carol and Ericka heard Kim’s message or the other apologetic messages that Kim left on his cell phone.
3. Jail Recordings
Correctional Officer James Kirkland testified regarding the Santa Clara County Department of Corrections’ system for monitoring inmates’ telephone calls and visits. Inmates may make collect telephone calls lasting no more than 15 minutes to persons outside the jail, who are notified that the inmate is calling from jail and who must accept the charges for the call to proceed. All telephone calls made by inmates are recorded except calls that are privileged, such as telephone calls to attorneys. The jail also records inmates’ communications with visitors. At the main jail facility, the inmate and the visitor communicate over telephones while viewing each other through a glass partition. A visitor’s telephone conversation with an inmate is recorded in the same computer system as a jail telephone call. Officer Kirkland made the copies of the audio recordings of defendant’s jail telephone calls and visits that were subsequently played for the jury.
Some of the jail recordings at issue in this case concern a photo lineup prepared by the defense investigator, William Van Cleave. Van Cleave testified that he prepared a photo lineup for Renee Edwards because she had told him that she saw defendant with a Vietnamese woman and he wanted to know if Renee could identify Kim. He obtained photos of Kim and other women from the Department of Motor Vehicles and prepared a lineup of six photos, including a photo of Kim. He sent the photo lineup to Renee in April 2007 with a cover letter asking her to indicate whether “she recognized the person she had seen with [defendant] at the Bayfair Mall.”
Renee testified that she first met defendant in 1989. She believed she was defendant’s girlfriend and moved to Mountain View in 1991 or 1992 to be closer to him, although she did not know where he lived. After Renee moved to Mountain View, defendant would spend the night with her once or twice a week. Defendant told Renee that he was not married, but Renee met his wife Teresa one day when she found Teresa waiting for defendant in the parking lot of Renee’s apartment building. Defendant explained that he had married Teresa because she needed a green card. Renee broke up with defendant in 1993.
After their breakup, Renee did not see defendant again until 2003, when she was walking through a mall and ran into him there. Defendant was with a tall, slender Asian woman in her late forties or early fifties. Defendant told Renee that he was in the jewelry business with the Asian woman and they had been in the mall scouting for jewelry. Renee and defendant rekindled their relationship after their encounter at the mall. At that time, Renee was living in Berkeley and did not know where defendant was living.
Renee further testified that her relationship with defendant became more serious and he asked her to marry him sometime later in 2003. Defendant also moved into Renee’s house around November 9, 2004, or November 10, 2004, and lived with her for three months. After defendant moved out, he maintained a relationship with Renee and would occasionally spend the night at her house. In 2006, defendant told Renee goodbye because he was going to jail due to a lady accusing him of something he did not do.
Renee subsequently had contact with defendant while he was in the county jail. Defendant made collect telephone calls from jail to her home phone, but the calls became a financial burden for Renee and she stopped accepting them. However, Renee continued to have telephone contact with defendant while he was in jail through three-way calls. A woman who identified herself as defendant’s sister, Juanita, would call Renee, then defendant would come on the telephone line and they would talk. Renee was suspicious that the woman calling was really Carol, whom she had met before, because the caller did not sound like Juanita, with whom Renee was also acquainted.
The parties stipulated that defendant was in the county jail from January 1, 2007, to July 1, 2007.
During one telephone call with the woman Renee believed to be Carol, Carol told Renee to mail the photo lineup sent to her by the defense investigator to defendant. Renee responded that she did not recognize anyone in the photos as the woman she had seen with defendant at the mall. During one of their three-way calls, defendant said that he wanted Renee to send him the photos so he could “mark the person who it was and mail them back.” Renee copied the photo lineup and mailed the copies to defendant while he was in the county jail against her better judgment because she still had feelings for defendant and wanted to help him.
Defendant sent the copies of the photo lineup back to Renee with a “person picked out” by writing “ ‘Yes’ ” above one of the photos. Renee recognized defendant’s handwriting because he had sent her many letters. However, Renee did not think the person picked out by defendant looked like the person she had seen with defendant at the mall. She never returned the photo lineup to the defense investigator. During Renee’s testimony, several audio recordings of jail telephone calls were played. Renee identified one of the voices on the recordings as Carol posing as Juanita, defendant’s sister. She also identified her own voice and defendant’s voice.
In his testimony, defendant acknowledged that he used Carol to call other women while he was in jail. He had Carol pose as Juanita when calling Renee and Teresa because “[a]ll of these ladies are jealous and they don’t like Carol at all.” Defendant also identified his voice on the jail recordings played for the jury. However, defendant denied telling Renee to identify one of women depicted in the photo lineup as the person who was with him at the mall. He merely picked the photo of the woman who looked “the most Asian.” Defendant also testified that he wanted to refresh Renee’s memory and “if she didn’t remember, she didn’t remember.”
4. Defendant’s Arrest
In 2005, Detective Christopher Searle became aware that an arrest warrant for defendant had been issued in connection with this case. When Detective Searle made contact at defendant’s last known address, which was Betty’s house, he noticed that Carol was driving a new red Dodge pickup with paper plates indicating that it was purchased at Sunnyvale Dodge. In early December 2005, Detective Searle spotted Carol driving a new black Dodge pickup with paper plates from Sunnyvale Dodge.
Officer Darren Pang and Detective Searle subsequently went to Sunnyvale Dodge on December 15, 2005. When they arrived at the dealership, both officers were dressed in plain clothes with their police badges hanging on necklaces and hidden under their clothing. They made contact with a manager who confirmed that defendant was employed at Sunnyvale Dodge and was currently on the premises. Detective Searle then saw defendant speaking with another employee in the dealership parking lot.
The officers approached defendant and Detective Searle began a conversation by saying he was interested in purchasing a vehicle. Detective Searle then pulled out his badge and showed it to defendant. Upon seeing the badge, defendant ran away and was pursued by Detective Searle and Officer Pang. Another officer, Detective Ramirez, joined the pursuit and yelled at defendant to stop. Defendant eventually stopped on his own when he reached a sidewalk adjacent to the dealership, then turned around and faced the officers. Defendant had a “bladed stance” with one foot back and one foot forward, with his hand in his pocket. Detective Searle estimated that defendant was about six feet, four or five inches tall, and weighed approximately 220 or 230 pounds. Officer Pang testified that he was five feet, seven inches tall and weighed about 143 pounds.
According to Detective Searle, Officer Pang reached defendant first and yelled at him to “ ‘Get on the ground, get on the ground. Let me see your hand, let me see your hand.’ ” When defendant did not get on the ground, Officer Pang grabbed defendant and pulled him forward. Defendant physically resisted and Detective Ramirez assisted Officer Pang in pulling defendant down to the ground. Defendant continued to physically resist and struggle with the officers as they attempted to handcuff him. Eventually, Detective Searle placed the handcuffs on defendant, but defendant continued to struggle and attempted to spit in the faces of Detective Ramirez and Officer Pang. At that point, officers placed a restraining device, called a wrap, around defendant’s legs and torso and a spit guard on defendant’s face.
After defendant was placed in the wrap, he looked at Officer Pang and said, “ ‘I’m going to remember your face and when I get out, booyah, I’m gonna get ya, you’ll see.’ ” Officer Pang understood the word “booyah” to be a street term that originated with a Samoan gang and meant that defendant intended to cause great bodily harm to him or shoot him. He had fear for the safety of himself and his family after defendant made that threat in light of defendant’s criminal history, which included a charge involving the use of a handgun. Detective Searle also understood the word “Booyah” to mean that some type of physical force was going to happen to the other person. Lieutenant Renold Irizarry testified that when Officer Pang reported defendant’s threat he appeared to be a little shaken.
Defendant explained that he ran away from the officers because he did not want to be arrested in front of the other employees of Sunnyvale Dodge. When the officers caught up with him, his hand was in his pocket because he was trying to turn on his telephone recorder. Defendant acknowledged that he took his time after a police officer ordered him to get on the ground. He was also aware that the officers were performing their duties as police officers. However, after the officers “slammed” him to the ground, defendant told them he was not resisting and he did not try to spit. According to defendant, he was angry because the officers had called him a racial epithet. Defendant denied threatening Officer Pang and did not remember using the word “Booyah.”
D. Verdict and Sentencing
On June 6, 2008, the jury rendered its verdict, finding defendant guilty on all counts except count 4, sexual penetration by force or fear on or about or between November 23, 2003, and November 8, 2004. The jury also found that defendant had personally inflicted great bodily harm in his commission of count 5, assault with attempt to commit rape. After a July 10, 2008 court trial on the prior conviction and prior prison term allegations, the court found all of the allegations to be true.
The sentencing hearing took place on August 14, 2008. The trial court denied defendant’s motion to strike two of his prior strike convictions in the interests of justice, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court also denied defendant’s motion to reduce count 7, criminal threats, to a misdemeanor. Thereafter, the trial court sentenced defendant to a total term of 100 years to life, consecutive to a determinate term of 67 years.
III. DISCUSSION
A. Jail Recordings
Defendant’s first contention on appeal is that the trial court erred in admitting the 17 audio recordings of jail telephone calls and visits involving defendant that were played for the jurors.
The record reflects that the jail recordings were redacted as agreed upon by the trial court and counsel for both parties before being played during the trial. Several of the recordings begin with the statement that “This is a collect call from an inmate at the Santa Clara County Department of Justice.” An example of one of the jail telephone call recordings is the following excerpt from jail call no. 65, recorded on April 5, 2007:
“RENEE: Hi. Hi honey, how are you?
“[DEFENDANT]: Um, what am I gonna tell you? Um, did you get a picture from, from the um, people?
“RENEE: No.
“[DEFENDANT]: Okay, if they send you a picture....
“RENEE: I’m listening.
“[DEFENDANT]: So they tryin’ to be tricky, and just send it to me and I’ll let you know if that’s the person. You know what I’m sayin’?
“RENEE: Okay. Even though, that’s your lawyer? They workin’ for the, that’s the Public Defender’s Office. [¶]... [¶]
“[DEFENDANT]: Okay, listen to me real good.
“RENEE: Yeah.
“[DEFENDANT]: I’m sayin’, if they send you one, just send it to me, and I’ll send it back to you, and I’ll tell you if that’s the person though. Do you understand me?”
The following is an excerpt from jail call no. 70, recorded on May 16, 2007:
“[DEFENDANT]: What’s wrong? What’s your problem, Renee? Hello?
“RENEE: What you mean? You in jail.
“[DEFENDANT]: Okay, I’m in jail, but why, why...
“RENEE: Okay? And you know what? I don’t, I don’t, I don’t, I don‘t recognize that lady on that photo. [¶]... [¶]
“RENEE: I don’t recognize her.
“[DEFENDANT]: That’s her Renee.
“RENEE: That’s not the same lady.
“[DEFENDANT]: That is her Renee.
“RENEE: That’s somebody else. The lady I seen had brown or black hair. [¶]... [¶]
“[DEFENDANT]: Okay, whatever.
“RENEE: That is a totally different lady that came to Bayfair Mall.
“[DEFENDANT]: Renee, it’s the same person.”
After engaging in an analysis of the jail recordings under Evidence Code section 352, the trial court determined that the recordings were relevant and probative. The court also determined that defendant’s statements in the recordings were admissible as party admissions, statements against interest, and coconspirator statements. Further, the court found that the witnesses’ statements (in their conversations with defendant and each other) in the recordings were not hearsay because those statements would be admitted to show the context of defendant’s statements. Additionally, the statements of one witness, Carol, in the recordings were deemed admissible as coconspirator statements. The trial court further found that there was “no way to shield the jury” from becoming aware from the jail recordings that defendant was in custody at the time of the recordings were made. For those reasons, the trial court denied defendant’s pretrial motion to exclude the jail recordings.
Defendant argues that the trial court erred in its Evidence Code section 352 analysis because the jail recordings were collateral, cumulative, equivocal, consumed an undue amount of time, and emphasized defendant’s custody status, and therefore the probative value of the recordings was far outweighed by their prejudicial effect. According to defendant, the jail recordings were collateral because the issue of “whether or not [defendant] was trying to manipulate witnesses into offering favorable testimony was not a ‘main’ issue in the case,” was not necessary to prove the elements of the charges, and created a high risk of confusing the jury.
Further, defendant asserts that to the extent the jail recording evidence was offered to show consciousness of guilt, it was cumulative to the evidence of defendant’s “efforts to flee the arresting officers.” Also, because the jail recordings were five hours long and consumed “an entire court day plus part of a subsequent court day,” defendant argues that playing the recordings consumed an undue amount of time. The jail recordings were also improperly admitted, in defendant’s view, because “the evidence was equivocal as to whether [he] was attempting to suborn perjury,” since the recordings could be interpreted as demonstrating defendant’s desperation to have Renee remember events correctly.
Defendant also argues that the jail recordings were unduly prejudicial because the recordings “pounded home 17 times during hours and hours of court time, that [defendant] was already serving jail time for the offenses before them.” Defendant believes that playing the jail recordings was analogous to having defendant appear at trial in prison clothing, since his custody status was revealed, and was equally improper.
The People disagree. They maintain that the jail recordings were properly admitted under Evidence Code section 352 because the recordings, which showed defendant’s efforts to have Renee perjure herself on his behalf, were relevant to defendant’s credibility and his consciousness of guilt. Also, because the trial court and counsel “engaged in a lengthy, careful, and comprehensive procedure to edit the tapes,” the People believe that the amount of time the jurors spent listening to the recordings was appropriate and necessary.
Additionally, the People contend that, even assuming the jail recordings were subject to different interpretations as argued by the parties, it was up to the jury to accept an interpretation and to determine what weight it should be given. The People also reject defendant’s argument that the jail recordings improperly emphasized that defendant was in custody for the charged offenses, explaining that it was inevitable that the jurors would know that defendant had been in jail because the evidence showed that he had been arrested and transported to jail. They also assert that the jail recordings, unlike prison clothing, did not provide a constant reminder of defendant’s custody status. Finally, the People argue that even if the jail recordings were admitted in error, the error did not constitute a miscarriage of justice in light of the compelling evidence of defendant’s guilt.
We will begin our analysis with a review of Evidence Code section 352. That section provides that “[t]he court in its discretion may 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.” (Evid. Code, § 352.) The standard of review for a trial court ruling under Evidence Code section 352 is deferential abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Accordingly, the trial court’s exercise of its discretion will not be disturbed on appeal unless the court “ ‘exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations].’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In the present case, we find for several reasons that the trial court could reasonably determine under Evidence Code section 352 that the jail recordings were admissible because their probative value was not substantially outweighed by the danger of undue consumption of time, undue prejudice, confusing the issues, or misleading the jury.
First, we agree with the People that the jail recordings had probative value, because it is well established that evidence of a defendant’s attempt to persuade a witness to testify falsely is admissible to show the defendant’s consciousness of guilt of the charged offenses. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [approving CALJIC No. 2.04]; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1225 [same]; People v. Burke (1912) 18 Cal.App. 72, 98 [efforts to manufacture testimony properly admitted to indicate consciousness of guilt].)
The current version of CALJIC No. 2.04 states, “If you find that a defendant [attempted to] [or] [did] persuade a witness to testify falsely or [attempted to [or] [did]] fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.”
Second, we find that the probative value of the jail recordings was not outweighed by the danger of undue consumption of time, since the record reflects that listening to the 17 jail recordings consumed only a small portion of the jury’s time in relation to the many days of witness testimony. Nor was the probative value of the jail recordings outweighed by any danger of confusing the issues or misleading the jury. Based on our review of the record on appeal, including the testimony of defendant, Renee, and other witnesses regarding their communications with defendant while he was in jail, we believe that the jury would not have been confused or misled by the jail recordings that were further evidence of those communications.
Third, we find that no undue prejudice resulted from the admission of the jail recordings. For purposes of Evidence Code section 352, “ ‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘ “uniquely tends to evoke an emotional bias against defendant” ’ without regard to its relevance on material issues. [Citation.]” (People v. Kipp, supra, 26 Cal.4th at p. 1121.) We are not convinced by defendant’s argument that playing the jail recordings was unduly prejudicial because the recordings lacked relevance and evoked the same emotional bias against defendant as the wearing of prison clothing. To the contrary, we agree with the People that the decision in People v. Valdez (2004) 32 Cal.4th 73 (Valdez) is instructive on that point.
In Valdez, our Supreme Court observed that “[t]he cases relied upon by defendant merely hold that a defendant may not be compelled to wear prison clothing during his or her trial. The reason, as correctly pointed out by defendant, is that such clothing serves as ‘a constant reminder’ that the defendant is in custody. [Citation.] But this rule has nothing to do with the facts of this case. Prison clothing reminds the jury of the defendant’s custodial status, but at the same time has absolutely no probative value with respect to the merits of the case. Here, the escape evidence was probative of defendant's consciousness of guilt relating to the murder and did not serve as ‘a constant reminder’ of defendant’s custodial status. Moreover, the mere fact that the jury is made aware of a defendant’s custodial status does not deprive the defendant of his constitutional rights. As we pointed out in People v. Bradford (1997) 15 Cal.4th 1229, ‘in certain circumstances a jury inevitably will learn a defendant is in custody for the current charged offense, for example where the jury is presented with the testimony of a jailhouse informant.’ [Citations.] This is equally true of evidence of an escape that is introduced to show consciousness of guilt.” (Valdez, supra, 32 Cal.4th at p. 121.)
The case before us is similar to Valdez. The jury was presented with jail recordings that resulted in the jurors learning that defendant had been in custody for the current offenses. However, the jail recordings were probative of defendant’s consciousness of his guilt, and, like the evidence in Valdez of the defendant’s escape, did not serve as a constant reminder of defendant’s custody status. Therefore, we reject defendant’s contention that admission of the jail recordings was unduly prejudicial.
For these reasons, we conclude that the trial court did not abuse its discretion in admitting 17 audio recordings of jail telephone calls and visits involving defendant.
B. Evidence Code Section 1108 Evidence of Uncharged Sexual Offenses
The trial court denied defendant’s pretrial motion to exclude evidence of prior uncharged sexual offenses, which sought to exclude evidence concerning Michelle, his former girlfriend; Teresa, his former wife; and V., Teresa’s 12-year-old daughter. The trial court ruled that the all three witnesses could testify under Evidence Code section 1108, after weighing the probative value against the prejudicial effect pursuant to Evidence Code section 352. On appeal, defendant contends that the trial court abused its discretion in admitting the evidence of uncharged sexual offenses.
Our review is governed by Evidence Code section 1108 (hereafter, section 1108), which creates an exception to the general prohibition against admitting evidence of character to prove conduct. (See Evid. Code, § 1101, subd. (a).) In pertinent part, subdivision (a) of section 1108 provides, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Thus, section 1108 “authorizes the admission of evidence of a prior sexual offense to establish the defendant’s propensity to commit a sexual offense, subject to exclusion under Evidence Code section 352.” (People v. Lewis (2009) 46 Cal.4th 1255, 1286.)
Evidence Code section 1101 provides, “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
The California Supreme Court addressed the constitutionality of section 1108 in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). The court concluded that section 1108 did not offend due process, for two reasons. First, the admission of propensity evidence under section 1108 is limited to cases involving current sex offenses and to evidence of prior sex offenses. (Falsetta, supra, 21 Cal.4th at p. 916.) Second, section 1108 authorizes the trial court to exclude evidence, pursuant to Evidence Code section 352, where its probative value is outweighed by the probability that admission of the evidence will necessitate undue consumption of time, create undue prejudice or confusion, or mislead the jury. (Falsetta, supra, 21 Cal.4th at p. 916.)
The Falsetta court accordingly instructed “[b]y 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 defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.)
The trial court has broad discretion to exclude evidence of prior sex offenses under section 1108 where the probative value of the evidence is outweighed by its prejudicial effect. (Falsetta, supra, 21 Cal.4th at p. 919.) Abuse of discretion is therefore the applicable standard of review for an order admitting evidence of prior sex offenses. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.) “ ‘Under the abuse of discretion standard, “ ‘ “a trial court’s ruling will not be disturbed, and reversal is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’ [Citations.]” (People v. Lewis, supra, 46 Cal.4th at p. 1286; People v. Wesson (2006) 138 Cal.App.4th 959, 969 [admission of evidence under section 1108 reviewed for abuse of discretion].)
Having reviewed the general rules governing the admissibility of evidence of uncharged sex offenses under section 1108 and the appropriate standard of review, we turn to defendant’s contention that the trial court abused its discretion in the present case.
1. Similarity
Defendant asserts that the evidence of uncharged sexual offenses involving Teresa was inadmissible since her testimony showed that her sexual activity with defendant was consensual and therefore not probative of the charged sexual offenses. Defendant also asserts that the uncharged sexual offenses involving V. should not have been admitted because his alleged sexual conduct with V. was too dissimilar from his alleged sexual conduct with Kim to be probative, and was “inherently inflammatory” due to V.’s young age of 12. Defendant further argues that the uncharged sexual offenses involving Michelle were insufficiently similar to the charged sexual offenses because “the alleged rapes only occurred after the [defendant] knew that he had won her affections.” In contrast, defendant points out, he did not reach that relationship stage with Kim.
The People respond that the section 1108 evidence involving Michelle, Teresa and V. was properly admitted because the evidence was relevant to the issue of defendant’s credibility in denying Kim’s claims of his sexual misconduct. Moreover, while the People dispute defendant’s contention that the uncharged sexual offenses must be similar to the charged sexual offenses for admission under section 1108, they maintain that there was sufficient similarity. Specifically, the People assert that “[a]ll of the women whom [defendant] abused were women he had access to because they lived in the same house he did. He did not target strangers, but rather abused those he had quick and ready access to (wherever he happened to be sleeping at the time).” The People also assert that defendant similarly used physical force in committing the sexual offenses against Kim, Teresa and Michelle, while V., like Kim, testified that defendant had molested her while she rode with him in a car.
We determine that the uncharged sexual offenses had probative value because they were relatively similar to the charged sexual offenses. In Falsetta, the California Supreme Court instructed that the trial court in weighing the Evidence Code section 352 factors should consider that “the probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses....” (Falsetta, supra, 21 Cal.4th at p. 917.) In the case at bar, the uncharged and charged offenses are all similar in significant aspects. Each sexual offense occurred when the victims were living in a home where defendant resided at least part-time. His living arrangements provided defendant with convenient and private access to the victim of each sexual offense. Further, the testimony of Michelle and Teresa indicated that defendant used physical force to overcome their resistance to having sex with him, similar to defendant’s use of physical force in his attempts to overcome Kim’s resistance. And, as the People note, defendant similarly touched the breasts of V. and Kim when they were alone with him in a car.
We find this case distinguishable from People v. Harris (1998) 60 Cal.App.4th 727 (Harris), a decision cited by defendant. In Harris, the defendant was a mental health nurse who was charged with several sex offenses and “accused of preying on women who were vulnerable due to their mental health condition.” (Harris, supra, 60 Cal.App.4th at p. 730.) At trial, evidence was presented regarding the events leading to defendant’s prior burglary conviction. (Id. at p. 734.) The evidence “described a viciously beaten and bloody victim who as far as the jury knew was a stranger to the defendant,” and the Court of Appeal found the evidence to be “inflammatory in the extreme.” (Id. at p. 738). In contrast, the charged sex crimes involved “a breach of trust by a caregiver” and the court determined that “the abuse the victims suffered” was “unfortunately, not unusual or shocking.” (Ibid.) The court concluded that the prior offense evidence “was remote, inflammatory and nearly irrelevant and likely to confuse the jury and distract it from the consideration of the charged offenses.” (Id. at p. 741.)
In contrast to the facts in Harris, the uncharged and charged sexual offenses in the case at bar are similar in their most significant aspects, including defendant committing the offenses in the victims’ homes while he was living there part-time and using force to overcome the victims’ resistance, and the evidence of uncharged sexual offenses was not unduly inflammatory or prejudicial. (Falsetta, supra, 21 Cal.4th at pp. 916-917.) We therefore determine that the trial court did not err in finding that the evidence of uncharged sexual offenses in this case had probative value.
2. Lack of Convictions
Defendant also argues that the trial court erred because none of the uncharged sexual offenses resulted in a conviction, and therefore admission of the section 1108 evidence placed an undue burden on him and caused uncertainty as to whether the uncharged sexual offenses had actually occurred. He further argues that the section 1108 evidence consumed an undue amount of time since, due to the lack of a conviction, a confusing mini-trial was required as to each of the alleged victim’s claims of prior sexual offenses.
The People dispute defendant’s contention that the evidence of uncharged sexual offenses was inadmissible due to uncertainty or jury confusion. They explain that the jury was properly instructed that (1) the section 1108 evidence must be disregarded unless the uncharged sexual offenses were proved by a preponderance of the evidence; and (2) the evidence could be considered as only one factor in determining defendant’s guilt of the charged offenses.
We find that, contrary to defendant’s claim, the lack of convictions did not cause the evidence of uncharged sexual offenses to be inadmissible under section 1108. The Falsetta court “observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 917.) However, neither section 1108 nor Falsetta requires a prior conviction in order for a prior sex offense to be admissible, since “the absence of a conviction in connection with other prior acts does not necessarily mean that the evidence will entail a protracted mini-trial.” (People v. Johnson (2000) 77 Cal.App.4th 410, 419, fn. 6.) The absence of a prior conviction is only one of several factors the trial court must consider when conducting the careful weighing process required under section 352. (Ibid.)
In this case, we find that the trial court could reasonably find that the lack of prior convictions did not outweigh the probative value of the uncharged sexual offenses. All of the victims of the uncharged sexual offenses, Michelle, Teresa, and V., testified to the facts of the offenses and, while their testimony was subject to rigorous cross-examination and defendant’s denial of their claims in his testimony, we do not find that the record reflects any protracted mini-trials. The testimony concerning the uncharged sexual offenses was not out of proportion to the other evidence presented at trial and did not necessitate an undue consumption of time.
Moreover, any risk of uncertainty or confusion on the part of the jurors was negated by the jury instructions, which included instruction on the limited purpose of evidence of a prior sexual offense and the People’s burden to prove the charged offenses beyond a reasonable doubt. The prosecutor also made clear the distinction between the prior uncharged sexual offenses and the charged sexual offenses during closing argument when he told the jurors that they could not base their guilty verdict on the evidence of sexual assaults involving Michelle, Teresa and V. alone, although they could use that evidence to find that defendant was more likely to commit the charged sexual assaults against women.
The trial court instructed the jury that “The People presented evidence that the committed the uncharged crimes of rape of Michele Doe, rape of Teresa Doe and lewd and lascivious act on a child under the age of 14 involving [V.]. You do not have to return verdicts on these alleged uncharged crimes. These crimes are defined for you in these instructions. [¶] You may consider the evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt.... [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide the defendant committed the uncharged offenses, you may but are not required to conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision, also conclude that the defendant was likely to commit and did commit the sexual assaults charged in this trial. [¶] If you conclude that the defendant committed the uncharged offense or offenses, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
The trial court instructed the jury that “You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
We therefore find no merit in defendant’s contention that the trial court failed to properly weigh the factor of the lack of any prior convictions in exercising its discretion to admit the evidence of uncharged sexual offenses.
3. Remoteness in Time
Defendant additionally argues that the evidence of uncharged sexual offenses involving Michelle was inadmissible under section 1108, since the claimed offenses occurred more than 16 years before trial and were therefore too remote in time to be probative.
The People rely on People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 for the proposition that a remoteness claim fails where, as here, the defendant has a consistent and repeated pattern of offenses prior to the charged sexual offenses.
The Falsetta court stated that the probative value of prior sex offense evidence is increased by “the close proximity in time of the offenses.” (Falsetta, supra, 21 Cal.4th at p. 917.) Thus, as one appellate court has stated, “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, 285 (Branch).)
In Branch, supra, 91 Cal.App.4th 274, there was a 30-year gap between the charged sex offenses and the prior uncharged sex offenses. Despite the remoteness in time, the appellate court determined that the prior uncharged sex offense evidence was properly admitted because the offenses were “remarkably similar,” in that defendant had molested his 12-year-old stepdaughter, then his 12-year-old step-great-granddaughter, while they were staying in his home, and then falsely stated that the victims had done something wrong. (Id. at p. 285.)
In this case, as we have discussed, defendant’s uncharged sexual offenses involving Michelle are similar in their most significant aspects--victim and perpetrator living together in the same home and the use of force to overcome the victim’s resistance--to the charged sexual offenses, and the uncharged sexual offenses were therefore highly probative. Additionally, the evidence indicated that there was not a significant gap in time because defendant continued to commit sexual offenses against the women with whom he lived, Teresa and her daughter V., after he stopped living with Michelle. We therefore find that amount of time between the uncharged sexual offenses involving Michelle and charged sexual offenses did not eliminate the probative value of the prior offenses. As in Branch, “the substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses.” (Branch, supra, 91 Cal.App.4th at p. 285.)
4. Harmful Error
Finally, defendant argues that the trial court’s error in admitting the section 1108 evidence was harmful under either the Chapman standard (Chapman v. California (1967) 386 U.S. 18) or the Watson standard (People v. Watson (1956) 46 Cal.2d 818) and violated his constitutional right to due process because the evidence of uncharged sexual offenses “tilted the scales overwhelmingly in favor of [Kim’s] version of events.”
The People assert that any error in admitting the evidence of uncharged sexual offenses was harmless because it is not reasonably probable that defendant would have obtained a more favorable verdict absent that evidence, due to the other compelling evidence of his guilt, including Kim’s testimony; the corroboration of Kim’s testimony by her niece, Thuy Tran; and the evidence of defendant’s consciousness of his guilt, including his efforts to suborn perjury by Renee and his attempts to flee from police before his arrest.
Even if there was any error in admitting the evidence of uncharged sexual offenses under section 1108, we would find the error to be harmless under either the Chapman or Watson standard in light of the other evidence presented in this case. Apart from the testimony of Teresa, Michelle, and V., the jurors heard evidence that could cause them to doubt defendant’s credibility, including defendant’s own admissions in his testimony that he “played a role” and lied to Kim, and the jail recordings revealing his efforts to suborn perjury by Renee. There was also strong evidence of defendant’s guilt on the charged sexual offenses. In particular, Kim testified in detail as to the facts of the sexual offenses and her testimony was corroborated by the testimony of Larry, Thuy Tran, Dr. Shuleshko, Officer Sakurai, and Officer Fekete, who stated that Kim reported the offenses committed against her by defendant near the time that the offenses occurred.
For these reasons, we determine that the trial court did not abuse its discretion in admitting evidence of uncharged sexual offenses under section 1108.
C. Sufficiency of the Evidence--Intent to Commit Rape
Defendant was convicted of assault with intent to commit rape and the allegation that he had personally committed great bodily injury in the commission of the offense was found to be true. (§§ 220, 12022.7, subd. (a), 1203, subd. (e)(3); count 5.) On appeal, he argues that there was insufficient evidence to support the conviction on count 5 and therefore the conviction should be reversed.
The standard of review for a challenge to the sufficiency of the evidence is well established. “In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Further, “ ‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’ [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility. [Citation.]” (Ibid.)
Regarding the elements of the offense of assault with intent to commit rape, the California Supreme Court has instructed that “ ‘ “The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force is required.” ’ [Citations.] ‘ “[I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault.” ’ [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 399-400; § 220, subd. (a).)
Defendant contends that there was insufficient evidence to support the conviction because the evidence showed that defendant only intended to have consensual sex with Kim. He explains that, during the incident of November 5, 2004, when he picked up Kim, “[a]t all times before and while he was carrying her, his words were efforts at persuading [Kim] to consent. He never touched her sexually during the assault. Once she unequivocally communicated that she would not consent, kicking the refrigerator, and causing [defendant] to drop her, he apologized and left.” Defendant also contends that the incidents of forced sex in the uncharged sexual offenses were too dissimilar to the November 5, 2004, incident involving Kim to be probative on the issue of intent to commit rape.
According to the People, the evidence of intent to commit rape was sufficient because, when the evidence is properly viewed in favor of the judgment, it was “manifest” that defendant “intended to have intercourse against [Kim’s] will.”
We are not convinced by defendant’s argument that the evidence of specific intent to commit rape was insufficient. “Intent to commit rape is the intent to commit the act against the will of the complainant. (See, e.g., People v. Maury, supra, 30 Cal.4th 342, 400 [assault with intent to commit rape]; People v. Ghent (1987) 43 Cal.3d 739, 757 [an assault with intent to commit rape and an attempted rape require the same specific intent].) A defendant’s specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence. [Citations.]” (Guerra, supra, 37 Cal.4th at p. 1130.)
Here, Kim testified to a number of facts and circumstances regarding defendant’s sexual misconduct with her. Prior to the incident of November 5, 2004, defendant had touched her inappropriately both before and after her marriage to Larry in November 2003, including grabbing her buttocks, breasts, anus, and vaginal area when they were alone. Kim also recalled that on one occasion defendant grabbed her and inserted his finger in her vagina while she was watering plants in the garden, and on another occasion he grabbed her breasts while she was in his car. There was also an incident in which, according to Kim, defendant pulled his penis out of his pants, slapped it on the table and said, “Look, this is how big I am. How come you don’t like it?”
Moreover, Kim testified that during the incident of November 5, 2004, when defendant picked her up and attempted to carry her toward the living room sofa bed, he made remarks like “ ‘Let’s try it. Don’t worry, let’s try it,’ ” and, “ ‘Let’s go and have it, don’t be afraid.’ ” While defendant argues that these remarks showed his intent to seduce Kim into consensual sexual intercourse, our standard of review requires that we view the evidence in the light most favorable to the judgment. “ ‘If the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also be reasonably reconciled with a contrary finding.’ [Citation.]” (Guerra, supra, 37 Cal.4th at p. 1129.)
Having reviewed the record in its entirety, we find that the jurors could have reasonably inferred from Kim’s testimony that defendant had the requisite intent to rape her. As in Guerra, supra, 37 Cal.4th at page 1131, the “record establishes defendant’s escalating sexual interest in [the victim].” As described above, defendant initially demonstrated his sexual interest in Kim by groping her breasts, buttocks, and vaginal area, whenever he found her alone. Defendant then progressed to digitally penetrating Kim in the garden and showing her his penis. Eventually, defendant attempted to force Kim to have sex during the incident in the kitchen of November 5, 2004, where he picked Kim up and attempted to carry her off against her will while verbally indicating that he wanted to have sexual intercourse with her.
Therefore, based upon the totality of the facts and circumstances disclosed by the evidence, we determine that the evidence of specific intent to commit rape was sufficient to support the conviction on count 5, assault with intent to commit rape. (Guerra, supra, 37 Cal.4th at p. 1132.)
D. Denial of Severance of Count 8--Criminal Threats
During the pretrial motions, the trial court denied defendant’s motion to sever count 7 (criminal threats against Officer Pang) and count 8 (resisting arrest), rejecting defendant’s contentions that the offenses were a different class of crimes than the sexual offenses charged in counts 1 through 6 and there was no cross-admissibility of evidence. On appeal, defendant challenges only the trial court’s refusal to sever count 7.
The California Supreme Court recently outlined the statutory criteria for joinder of different offenses and the standard of review for an order denying a defendant’s motion to sever joined charges. “[P]ursuant to section 954 an accusatory pleading may charge two or more different offenses so long at least one of two conditions is met: The offenses are (1) ‘connected together in their commission,’ or (2) ‘of the same class.’ ” (People v. Soper (2009) 45 Cal.4th 759, 771 (Soper).) The Legislature’s purpose in enacting section 954 was to avoid “ ‘the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.’ [Citation.]” (Id. at p. 772.) Accordingly, “consolidation or joinder of charged offenses ‘is the course of action preferred by law.’ [Citations.]” (Ibid.)
Section 954 provides, “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.”
The threshold question is whether the charges were properly joined. Even if the charges are not of the same class, they may be properly joined if the charges were “connected together in their commission.” (§ 954; Valdez, supra, 32 Cal.4th at p. 119.) “ ‘Offenses “committed at different times and places against different victims are nevertheless ‘connected together in their commission’ when they are... linked by a ‘ “common element of substantial importance.” ’ [Citations.]” ’ [Citations.]” (Valdez, supra, 32 Cal.4th at p. 119.)
The standard of review for an order denying a motion to sever properly joined charges is abuse of discretion. “A defendant, to establish error in a trial court’s ruling declining to sever properly joined charges, must make a ‘ “clear showing of prejudice to establish that the trial court abused its discretion.” ’ [Citation.]” (Soper, supra, 45 Cal.4th at p. 774.) To determine whether the trial court abused its discretion, “ ‘we consider the record before the trial court when it made its ruling.’ [Citation.]” (Id. at p. 775.) And, we apply the following criteria in determining whether the defendant has made a clear showing of prejudice: (1) “the cross-admissibility of the evidence in hypothetical separate trials”; and (2) “ ‘the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ ” (Ibid.) We must also determine whether joinder resulted in “ ‘gross unfairness’ ” amounting to a denial of due process. (Valdez, supra, 32 Cal.4th at pp. 120-121.)
The possible spill-over effect of other crimes evidence is evaluated by considering three additional factors: (1) “whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.]” (Soper, supra, 45 Cal.4th at p. 775.) “We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state. [Fn. omitted.]” (Ibid.)
Defendant argues that the trial court erred in denying the motion to sever count 7 (criminal threats) because count 7 was not properly joined to counts 1-6. In defendant’s view, count 7 was not of the same class as counts 1-6, nor was count 7 connected in its commission to counts 1-6. Defendant explains that there was no common element of substantial importance linking count 7 and counts 1-6 because the offense of criminal threats (count 7) did not show consciousness of guilt of the sexual offenses (counts 1-6).
Alternatively, even assuming that the charges were properly joined, defendant argues that the trial court abused its discretion in denying his motion to sever count 7 because separate trials were necessary to avoid undue prejudice. He insists there was no cross-admissibility of evidence because the criminal threats evidence would not be admissible in a hypothetically separate trial on the sexual offenses. Further, defendant insists that the spill-over effect from joining the criminal threats charge was apparent because the criminal threats case was weak in comparison to the sexual offenses case, and the sexual offenses evidence was likely to inflame the jury. Defendant accordingly claims that the benefit of a joint trial did not outweigh the prejudicial effect of joinder.
The People note that because defendant no longer challenges the joinder of count 8 (resisting arrest), defendant implicitly concedes that joinder of count 8 was proper. The People consequently argue that the concession on count 8 is important because the issue on appeal is not whether count 7 was properly joined with the sexual offenses charged in counts 1-6, but whether count 7 was properly joined with counts 1-6 and count 8. Joinder was proper, the People maintain, because defendant’s resistance to arrest and his threats to Officer Pang during the arrest were both relevant to his consciousness of guilt of the sexual offenses. The People similarly argue that defendant has not shown that prejudice resulted from the joinder, since the evidence was cross-admissible to show consciousness of guilt. Also, the People believe that the benefits of joinder outweighed the burden of separate trials, given the duplication of evidence that would have been required.
Under the circumstances of this case, we determine that count 7 was properly joined to counts 1-6 and count 8, because the charge of criminal threats was connected in its commission with the sexual offense charges and the resisting arrest charge. (Valdez, supra, 32 Cal.4th at p. 119.) The record reflects that due to defendant’s continued resistance and struggling during his arrest, the officers placed a restraining device, called a wrap, around his legs and torso. After defendant was placed in the wrap, he looked at Officer Pang and said, “ ‘I’m going to remember your face and when I get out, booyah, I’m gonna get ya, you’ll see.’ ” Since defendant made the criminal threats while he was in the course of resisting arrest, we find that the evidence supporting both the criminal threats charge and resisting arrest charge were relevant to show defendant’s consciousness of his guilt of the sexual offenses. Therefore, all counts were linked by a common element of substantial importance. (Valdez, supra, 32 Cal.4th at pp. 119-120.)
Having determined that the counts were properly joined, we turn to the issue of whether the trial court abused its discretion in denying severance of count 7 due to the prejudicial effect of joinder. We find that defendant has not met his burden to make the clear showing of prejudice necessary to establish abuse of discretion. (Valdez, supra, 32 Cal.4th at p. 119.) Applying the criteria for prejudice (Soper, supra, 45 Cal.4th at p. 775), we first find that, as we have discussed, the evidence pertaining to the criminal threats charges was admissible with respect to sexual offense charges and the resisting arrest charge.
Second, we find that any spill-over effect was minimal. The charge of criminal threats was unlikely to inflame the jury against defendant in light of the evidence that had already been admitted regarding defendant’s sexual misconduct. The criminal threats case was also not weak in relation to the sexual offenses case or the resisting arrest case, since all charges were supported by the trial testimony of the victims regarding defendant’s conduct towards them. We also conclude that joinder of the criminal threats charges did not alter the outcome on the other charges, due to the strong evidence presented at trial on the resisting arrest charge and sexual offense charges. Therefore, we find that the potential for prejudice to defendant from a joint trial did not outweigh the countervailing benefits to the state. (Soper, supra, 45 Cal.4th at p. 775.)
For these reasons, we conclude that the trial court did not abuse its discretion in denying defendant’s motion to sever count 7.
E. Cumulative Error
Finally, defendant contends that the cumulative effect of the trial court’s errors warrants reversal. The California Supreme Court has instructed that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) In the present case, we have rejected all of defendant’s claims of trial court error. Therefore, we must also reject defendant’s contention of cumulative error.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: Mcadams, J., Duffy, J.