Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Nos. BA284322 c/w BA305250, BA344094 Curtis B. Rappe, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Appellant Shawn Nathen Wright appeals from a judgment of conviction of two counts of rape and two counts of forcible oral copulation upon one victim, and two counts of forcible sodomy upon another victim. Appellant contends that the trial court erred in joining unrelated charges for trial. He argues that the sex charges as to one victim did not meet statutory requirements for joinder with the charges involving the other victim, because the two victims were of a different gender. Appellant also contends that the trial court abused its discretion in joining the solicitation charge with the sex charges, and in denying his motion to sever them. In the alternative, he contends that the joinder deprived him of a fair trial and due process of law. Finally, appellant contends that Evidence Code section 1108 is unconstitutional. We reject appellant’s contentions and affirm the judgment.
BACKGROUND
1. Procedural Background
In an amended and consolidated information filed August 11, 2008, appellant was charged with five felonies arising from two separate incidents, as follows: In counts 1 and 2, he was charged with having raped Veronica F. on or about May 24, 2005, by means of force, violence, duress, menace, and fear, in violation of Penal Code section 261, subdivision (a)(2); in counts 3 and 4, appellant was charged with having orally copulated the same victim on the same date, also by means of force and fear, in violation of section 288a, subdivision (c)(2); in counts 9 and 10, appellant was charged with having forcibly sodomized Gregory R., in violation of section 286, subdivision (c)(2), on April 16, 2004.
All statutory references in this part are to the Penal Code, unless otherwise indicated.
The information did not contain counts 5, 6, 7, or 8.
The charges involving the two incidents had been consolidated upon motion by the prosecution in September 2006. At that time, appellant conceded that joinder was proper in that the offenses involved similar acts, but asked the trial court to exercise its discretion to order separate trials. Appellant argued that both cases were weak, and that he might present a defense against one and not the other, which he argued could lead the jury to wonder as to why he did not address both. The trial court granted the prosecution’s motion for joinder.
On October 28, 2008, the prosecution filed an information charging appellant with having solicited the murder of Veronica F., in violation of section 653f, subdivision (b), sometime in March or April 2008. At the same time, the prosecution filed a motion to join the solicitation charge with the information filed August 11, 2008. Appellant objected to the consolidation on several grounds. He argued that the court should exercise its discretion to deny the motion, because the sexual assault case involving a minor victim was too inflammatory. He also argued that consolidation was improper, because solicitation to murder was not in the same class of crimes as assaultive offenses, and evidence of the solicitation charge was obtained improperly from his jail cell. He also argued that it would be a waste of resources since he was already facing an “astronomical amount of years.” The trial court granted the motion for joinder.
Appellant, representing himself in pro. per. on the solicitation charge, filed a motion to sever that charge from all other charges, on the ground that the jury was likely to be inflamed or misled. Appellant was no longer in pro. per. when the motion to consolidate was argued.
On November 21, 2008, the prosecution filed an amended information adding the solicitation of murder charge as count 14, in addition to counts 1 through 4, 9, and 10, charged in the information filed August 11, 2008. As to counts 1 through 4, 9, and 10, the information specially alleged the following: pursuant to section 667.61, subdivisions (a) and (d), that appellant had previously been convicted of an offense specified in section 667.61, subdivision (c); that appellant personally used a dangerous or deadly weapon––a knife––in the commission of the crimes, within the meaning of section 12022.3, subdivision (a), and for purposes of section 1192.7, subdivision (c)(23); and that, for purposes of section 667.61, subdivisions (a), (b), and (e), the current crimes included an offense specified in section 667.61, subdivision (c), against more than one victim, and were committed with the personal use of a dangerous or deadly weapon, in violation of section 12022.3.
In addition, the information also specially alleged, as to all counts, two prior felony convictions––forcible sodomy and assault with a deadly weapon for purposes of the “Three Strikes” law, sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), as well as for purposes of the five-year sentence enhancement of section 667, subdivision (a)(1).
Appellant’s jury trial began August 28, 2009. On September 24, 2009, the jury returned guilty verdicts on counts 1 through 4, 9, and 10, but was unable to reach a verdict as to count 14, the solicitation charge. The trial court declared a mistrial as to count 14, and the solicitation charge was later dismissed. As to each other count, the jury found true the allegation that appellant committed one of the offenses specified in section 667.61, subdivision (c), against more than one person. In addition, the jury found true the allegation that in committing the offenses charged in counts 9 and 10, sodomy by force, appellant personally used a deadly weapon, a knife.
Appellant waived a jury determination of his prior convictions, and admitted that he had been convicted of sodomy, in violation of section 286, subdivision (c), in 1989, and that in 1996 he had been convicted of assault with a deadly weapon, in violation of section 245, subdivision (a)(1).
On November 6, 2009, the trial court sentenced appellant to a total prison term of 245 years to life. Appellant filed a timely notice of appeal.
2. Prosecution Evidence
a. Gregory R.
On April 16, 2004, at approximately 2:00 or 3:00 a.m., 21-year-old Gregory R. met appellant while riding a bus in Los Angeles. Gregory was from New Jersey, and was unfamiliar with the area. He asked another passenger how to get to Hollywood, and appellant joined the conversation, offering to give him a bus schedule which was in his apartment, if Gregory came with him to get it. Gregory agreed, and they got off the bus together near MacArthur Park. After a short stop at the home of appellant’s girlfriend, they went to appellant’s residence, room 206 of the Senator Hotel at Seventh and Main Streets.
After they had been talking and smoking cigarettes for 10 or 15 minutes, appellant placed a towel underneath the entrance door. Appellant then punched Gregory with his fist twice in the face, knocking him to the floor. From behind, appellant placed a 10-inch-long kitchen knife on Gregory’s throat, choked him with his necklace, and ordered him to remove his clothes. Gregory complied because he was afraid. Appellant then ordered Gregory onto all fours on the bed, and sodomized him. Gregory falsely told him he had AIDS, hoping it would make him stop, but appellant stopped only long enough to remove his penis, put on a condom, and sodomize Gregory once again. The knife was on the bed within appellant’s reach throughout the assault. Gregory cried, and repeatedly asked appellant to stop, but he persisted and threatened to kill him by throwing him out the window.
After the assault, appellant acted as though he and Gregory were friends, although he once again had the knife in his hand. Gregory put his underwear on, went to the bathroom, and cleaned himself up. He was in a great deal of pain, which he described in his testimony as 10 on a scale of 1 to 10, and he considered killing appellant. He went back to appellant’s room, where appellant rummaged through Gregory’s pants, took his wallet, and suggested they go to an ATM. When they left the room to go to an ATM, appellant put the knife in his pocket.
Gregory told appellant he had no money, but he was afraid, and although he knew it would be refused, he put his card in the machine. The card was refused, and in approximately 20 minutes, still considering revenge, Gregory returned with appellant to the room sometime between 5:00 and 6:00 a.m. Gregory watched appellant fall asleep, thinking of ways he could kill him. Then, Gregory decided he did not want to go to prison, and left the room. He went to the front desk, told the clerk he had been raped, and pleaded with her to call the police. She told him to use the pay phone outside, which he did to call 911. After the police arrived, Gregory was taken to County Hospital by ambulance.
Appellant did not tell Gregory his name, but after the assault, Gregory saw a pill bottle with the name Shawn Nathen Wright on it. Gregory recognized appellant in court during trial. He also identified a photograph of the knife appellant had used during the assault. The police had recovered the knife among other kitchen utensils in appellant’s room.
Nurse practitioner Julie Lister examined Gregory the day of the assault. Gregory was sad and distressed. He had several recent bruises and scratch marks on his back, and a superficial laceration and abrasion on the rugae (folds) of the anus. Both injuries appeared to have been caused by blunt force trauma, and were consistent with sexual assault. The bruises on his back could have been caused by hitting, rubbing, or friction, and the scratch marks could have been caused by the fingernails of a person holding him down. In Lister’s opinion, consensual sex would not ordinarily cause injuries of the type she observed on Gregory.
Gregory admitted to Lister that he had used “speed” sometime within the previous 96 hours, and a drug screen was positive for amphetamines, methamphetamines, codeine, a metabolite of heroin, and benzoylecgonine, a sedative.
Gregory was so distraught that he returned to New Jersey and missed his appointment with detectives. He became suicidal and addicted to heroin and cocaine. Gregory was too embarrassed to tell his parents what had happened to him, and they eventually turned him out of their home. He became homeless, and shoplifted to support his addiction. In 2006, Los Angeles Police Detective Sharlene Johnson interviewed Gregory in New Jersey, and in 2008, he moved back to Los Angeles, where he was convicted of drug charges and began a court-ordered rehabilitation program.
b. Veronica F.
On May 24, 2005, when Veronica F. was 14 years old, she walked to school at approximately 7:00 a.m., but left school shortly after arriving, on the pretext that she had forgotten her books. As she walked alone toward home, she saw appellant, whom she had never seen before. He was smoking a cigarette in front of his apartment building, about five buildings away from Veronica’s home. He asked her whether she wanted a ride to school, and although she did not know him, she agreed and got into his car.
Appellant did not drive toward the school. He instead entered the freeway, telling her he needed to pick up something first. After about 10 minutes, he got off the freeway at Arlington, drove into a deserted residential alley, and parked. Appellant told Veronica he had seen her at a party the previous Saturday, and wanted to be with her. She said, “No, ” but he kissed her on the mouth and began removing her clothing. She asked him to stop, and pushed him, but he continued, saying he wanted to have sex with her. Against her will, he continued kissing her, reclined the seat, removed her pants and panties, and lifted her shirt. She cried, asked him to stop, and pushed him, but he choked her with both hands until she could not breathe. After approximately 30 seconds, she was able to scream while appellant choked her. Appellant told her to shut up or he would do something. Appellant then raped Veronica, after which he sucked her vaginal area with his mouth. When she scratched his neck and again told him to stop, he stopped, allowed her to put on her clothes, and drove to a liquor store. She stayed in the car when he went inside, because she did not know where she was.
When appellant returned to the car, Veronica asked him to take her home. He drove to a gas station, where she stayed in the car while he purchased gas, because she thought he would take her home afterward. Instead, he drove back into the same alley, saying he had lost money there. He parked, searched outside for his money for a few minutes, and then got back into the car, removed Veronica’s clothing, and again said he wanted to have sex with her. She said, “No, ” that she wanted to go home and did not want to be there anymore. Appellant again removed her underwear and pants, and as she yelled and tried to push him away, he told her he loved her and wanted to be with her. He asked her not to cry, and to swear that she would not tell anyone. He raped her a second time, sucked her breasts, and then again placed his mouth on her vagina.
Veronica did not want him to do any of these things, and she told him that he should not behave like that, and should not be doing anything to her. When he stopped, and they had put their clothes on, he threatened that something would happen to her family if she told anyone. Appellant dropped Veronica off on a street near her home at approximately noon. Later that afternoon, she told her cousin Margarita what had happened, and Margarita told Veronica’s aunt, who called the police. At first, concerned that her family did not believe her, Veronica falsely claimed that appellant had been armed, and that he had forced her into the car.
Veronica was taken to the hospital and underwent an initial forensic examination the same day as the assault. A few days later, nurse practitioner Sally Wilson examined Veronica at the Santa Monica UCLA Rape Treatment Center. Wilson testified that she observed scleral hemorrhaging in both eyes, bruises on her neck, and petechiae––little hemorrhages––on her upper palate, all injuries that were consistent with strangulation. In Wilson’s opinion, the bruises on Veronica’s neck were not “hickies.” Veronica identified photographs of her face, and testified that the injuries depicted––bloody eyes and marks on her neck––were caused by the assault.
Jody Hynds, a forensic DNA analyst, testified that she analyzed epithelial and sperm fractions separated from a vaginal lavage taken from Veronica, as well as Veronica’s blood and an oral swab taken from appellant. She determined that the epithelial fraction matched Veronica’s DNA profile, and the sperm fraction matched appellant’s DNA profile.
c. Uncharged Conduct––Donald S.
Donald S. testified that in February 1989, when he was 16 years old and on juvenile parole, he lived at Julius Boys’ Home at the same time appellant lived there, in a separate room. On one occasion, appellant entered Donald’s room, and took the telephone from Donald’s dresser. When Donald told him to put it down, appellant punched him in the face. A few minutes later, just after Donald had undressed, appellant entered his room again. Appellant choked Donald from behind until he had trouble breathing and became dizzy, then said he wanted to “fuck.” When Donald said, “No, ” appellant told him he was going to do it anyway. Appellant continued to choke him, pulled down his boxers, and sodomized him on the bed. Donald struggled, and when he screamed, appellant choked him some more. The assault lasted five to 10 minutes.
After the assault, appellant told Donald that if he said anything, he would kill him. Donald was afraid of appellant, who was older and weighed close to 200 pounds, while Donald weighed only about 140. Approximately 20 minutes later, Donald reported the assault to the supervisor of the group home, and the police investigated. Donald testified that he had struggled with drug addiction for the past 10 years, and had suffered drug-related criminal convictions.
d. Solicitation to Murder Veronica
James States, who was in custody at the time of trial, testified that he had known appellant since they lived in a group home together in 2003. They were friends, and stayed in contact. In March 2008, they found themselves in the same holding tank of the courthouse, and had a conversation there. Appellant asked States to do him a favor if released from custody soon-to handle the same “situation” they had talked about while they were in custody in 2007, which was to “get rid of” some people so that they would not testify against him. States knew which people appellant meant, because of the “kite”––a kind of prison letter––that appellant had given him in 2007. The kite contained Veronica F.’s name and address, as well as the names and addresses of her aunt and boyfriend. Appellant told States to do whatever he had to do to get rid of them.
States made no attempt to contact Veronica. He was transferred to Chino and released from custody without seeing appellant again until the 2008 courthouse conversation. Although he had no intention of doing what appellant had asked of him, States did not want trouble while they were together in the holding tank, and simply told appellant he would take care of it, without elaborating. He saw appellant again in jail about a week later, when they attended church at the jail chapel together. Appellant gave States an envelope containing another kite and a picture of Veronica, which States passed to another inmate, Kyle Vannice, in order to avoid being discovered with it during a routine post-church search. Once back on his cell block, Vannice gave it back to States. States then told his cellmates about the envelope, and left a telephone message for his attorney the same day. A week later, deputies raided his cell, searched it, and when they left, the kites and photograph were gone. States never intended to carry out the request.
3. Stipulations
The parties stipulated that Detective Johnson interviewed Kyle Vannice, and the questions and answers were read into the record. Vannice stated that he had gone to church with States just once, but denied that States handed him anything or asked him to hold anything for him.
The parties stipulated that on March 6, 2008, Deputy Torres reported that appellant sustained an injury to his right thumb, was taken to the hospital, diagnosed with a fracture, and placed in a short arm cast. On March 12, 2008, appellant appeared in Judge Ohta’s courtroom on the 13th floor, and that the Department 132 minute order of that date shows that States appeared in court on the 15th floor in Judge Marcus’s courtroom. Finally, the County Jail records showed that appellant was housed in the Twin Towers facility, and at 12:21 p.m. on March 17, 2008, he was moved across the street to the men’s central jail, where he was placed in row D, cell 13, in cell module 4800 at 3:45 p.m.
4. Defense Evidence
a. Appellant’s Testimony
Appellant testified at length in his own defense. He testified that when he met Gregory on the bus, Gregory was looking for MacArthur Park because he wanted to buy heroin there. Appellant told him that the park was not a good place, and that he would help him buy heroin elsewhere. Gregory “tagged along” with appellant to his girlfriend’s apartment, where they stayed awhile, before leaving to find “Mike, ” the homeless heroin user. Mike took them to a dealer who sold Gregory two “balloons” of heroin. Appellant claimed that Gregory touched him flirtatiously, and continued “tagging along” to appellant’s room at the Senator Hotel.
Appellant testified that Mike prepared heroin for Gregory and himself to inhale, after which Gregory took his clothes off and lay on appellant’s bed. Appellant claimed that he told Gregory to get dressed and off his bed, and that appellant gave him his own underwear to put on. After Gregory “slowly” dressed, Mike left, and appellant went with Gregory to an ATM to obtain money to buy more heroin, but they gave up after three cards were refused. Appellant claimed that Gregory seemed reluctant to leave, and asked to hang out with him, so they returned to the hotel.
At some point after they returned to appellant’s room, Gregory went to the restroom and came back. Appellant claimed that because Gregory did not put his credit cards away when they returned, he put them in Gregory’s jacket pocket, along with his cigarettes and lighter. Appellant then fell asleep, and when he awoke, Gregory was gone. Appellant denied having had sex with Gregory, and knew of no reason why Gregory would say that he had.
Appellant also denied having had sex with Veronica. He testified that he had seen Veronica several times in the neighborhood, and that she had spoken to him occasionally, when no one else was present. He thought she was 17 or 18 years old. When he saw her on May 24, 2005, she “really stood out” in her tight jeans and color coordinated hoodie. When he saw her walking past his apartment building, he greeted her, and told her he had seen her at the community party the previous Saturday. Appellant claimed that Veronica asked him what he was doing, and when he said he was going to go to his mother’s house to pick up some money, she asked to go with him.
Appellant testified that after stopping at a liquor store, Veronica indicated that she wanted to “tag along”––that she wanted to “cruise” with him. He gave a detailed account of the places they went that morning. He claimed that he first went back to his apartment to give something to his girlfriend, parked in the alley while Veronica waited in the car, and then took the freeway to his mother’s house, where Veronica again remained in the car. He then drove four blocks to the gas station, to another liquor store, and then to a laundromat parking lot, where people often gathered to drink and socialize. They both drank beer.
While Veronica sat in the car, appellant spoke to someone nearby who alerted him that Veronica was taking off her clothes. Appellant claimed that she told him she wanted to have sex with him in the front seat. He was embarrassed, told her she had probably had too much to drink, and coaxed her into putting her clothes back on. She did, but left her panties on the front seat. When she fell asleep a short time later, appellant took the panties into the laundromat restroom, where he masturbated and ejaculated into the panties. He placed them into a plastic bag, intending to keep them as a souvenir, and put the bag in the backseat. Later that day, he noticed that the bag was missing.
Appellant denied that he had kissed Veronica or touched her anywhere with his mouth. He claimed that when she undressed, he saw “hickies” or “monkey bites” on her neck and chest. He also claimed that she had told him that her boyfriend was violent and had slapped her a few times, and he surmised that she had accused him of rape because she was afraid of her boyfriend. He also surmised that she accused him because her family would not approve of her “hanging out” with a Black man, and she was ashamed. He explained his scratches as having been inflicted by his girlfriend.
Appellant denied that he asked States to do anything for him, or that he discussed his case with him when they were together at the courthouse in March 2008. He denied that he went to church services the following Sunday, and testified that he was still in the Twin Towers. He testified that he had information about witnesses because he had represented himself for more than a year. He denied having written any of the kites or letters.
Appellant denied having assaulted Donald in 1989, when he was 18 years old, and claimed that he had seen Donald having sex with another boy that day, after he had entered Donald’s room to use his roommate’s telephone. Appellant acknowledged that he was convicted of forcible sodomy after pleading no contest, but claimed that he thought the charge was assault, due to his having fought with Donald in mutual combat later the same day that he saw Donald and the other boy having sex. He was told that if he did not accept a plea bargain, he would face a prison term of 14 years. Appellant claimed that he was duped and misled by the public defender, although he admitted that he knew before pleading no contest that Donald had been diagnosed with rectal injuries, and that spermatozoa had been recovered from rectal swabs.
In another case, appellant was convicted of felony assault in 1996.
b. Expert Testimony
Appellant called as his expert witness, Dr. Earl Fuller, a retired obstetrician/gynecologist and university professor. He testified that superficial lacerations of the anal rugae can occur during consensual anal sex. He also testified that sperm can remain mobile on underwear for up to eight hours after ejaculation, and can migrate into the vagina from the outer labia. Dr. Fuller studied the photographs of Veronica’s injuries and appellant’s scratches. He found Veronica’s injuries to be consistent with choking, and recently caused. Appellant’s injuries, however, appeared to be well over seven hours old, although Dr. Fuller agreed that they could have been sustained the same day the photograph was taken.
c. Sylvia Liang
Appellant’s former girlfriend, Sylvia Liang, testified for the defense. In essence, she corroborated appellant’s testimony concerning her. She testified that appellant brought Gregory to her apartment on April 16, 2004, sometime after midnight. Gregory wore black fingernail polish and eyeliner, and was dressed in very tight jeans. Appellant invited him in and made him a sandwich.
Liang claimed that she caused appellant’s scratches during the week of May 23, 2005, when she tried to prevent him from taking money from her purse. When she saw appellant in the evening of May 24, the only scratches she saw on him were the ones she made.
Liang testified that she had seen Veronica in the neighborhood for the past seven years, and knew her name. For six months, she had seen Veronica with a young man, Miguel, who appeared to be at least 21 years old. Liang did not believe Veronica’s rape accusation, because she did not call the police the same day.
DISCUSSION
I. Joinder of the Charges for Trial
Appellant contends that his “convictions must be reversed for the improper and prejudicial joinder of the charges.” Appellant argues that the offenses did not meet the statutory qualifications for a joint trial in the first instance, and that the trial court abused its discretion in refusing to sever.
There were two prosecution motions to join charges for trial. In the first, the prosecution sought joinder of the sex crimes alleged to have been committed against Gregory, with the sex crimes alleged to have been committed against Veronica. In the second motion, the prosecution sought consolidation of the joined sex charges with the case charging appellant with the solicitation of Veronica’s murder. At that time, appellant filed a cross-motion for severance. Under a single heading in his briefs, appellant combines his argument as to both motions, making it difficult to discern which ruling he is challenging with each argument. Appellant also combines under the same heading his argument that the effect of the joinders deprived him of a fair trial. We shall discuss each pretrial ruling separately, prior to reaching the separate issue of the gross unfairness he claims to have suffered at trial.
A. Standard and Scope of Review
The statutory criteria for joinder are satisfied if the charged offenses are “connected together in their commission, or... [are] of the same class of crimes or offenses....” (§ 954.) However, the trial court, “in its discretion, ” may order them tried separately “in the interests of justice and for good cause shown....” (§ 954.) When the charged offenses belong to the same class of crimes, the burden shifts to appellant to make a clear showing of a substantial danger of prejudice if the crimes were tried together. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
“Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns into a capital case. [Citations.]” (People v. Sandoval (1992) 4 Cal.4th 155, 172–173.)
The fourth factor is inapplicable here.
We review the court’s ruling for an abuse of discretion, and reverse only when it exceeds the bounds of reason. (People v. Soper (2009) 45 Cal.4th 759, 774.) “In determining whether a trial court abused its discretion under section 954 in declining to sever properly joined charges, ‘we consider the record before the trial court when it made its ruling.’ [Citation.]” (Ibid.) If we find that a joinder or a refusal to sever charges was correct when the trial court made the ruling, a defendant is not entitled to reversal, unless he establishes that the ruling, although correct, resulted in “‘gross unfairness... from the joinder such as to deprive [him] of a fair trial or due process of the law.’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 508–509.)
B. Joinder of the Sex Charges Was Proper
Appellant contends that the sex offenses were not of the same class, because the victims were of different genders. Appellant also contends that joinder was error because the evidence in the two cases was not cross-admissible, arguing that the evidence of a sexual assault upon a female victim is irrelevant to prove a disposition to commit a sexual assault upon a male victim. We reject both contentions.
Rape and forcible sodomy, like other sex offenses, are of the same class, and thus meet the statutory requirements for joint trial. (People v. Lindsay (1964) 227 Cal.App.2d 482, 492.) In such cases, consolidation or joinder of the charged offenses is preferred, as it promotes efficiency and judicial economy. (People v. Soper, supra, 45 Cal.4th at p. 772.) Because section 954 permitted the joinder of the sex offenses, it was appellant’s burden to make a clear showing in the trial court of a substantial danger of prejudice if the crimes were tried together. (See People v. Bradford, supra, supra, 15 Cal.4th at p. 1315.)
As respondent notes, the evidence of the sex crimes would be cross-admissible under Evidence Code section 1108, to show appellant’s propensity to commit sex crimes. Thus, the first factor in reviewing the trial court’s discretion was satisfied. (See People v. Sandoval, supra, 4 Cal.4th at pp. 172–173.)
All further statutory references are to the Evidence Code, unless otherwise indicated.
Appellant disagrees, and contends that the evidence was not properly cross-admissible, arguing that the evidence regarding one victim was irrelevant to the other, as the crimes were committed approximately one year apart against different victims, and there was no shared question of intent or identity. Appellant provides no authority for such requirements, merely inviting comparison with a case where two murder charges were properly joined, and the court found cross-admissibility of evidence of intent and identity. (See People v. Soper, supra, 45 Cal.4th at pp. 776–777.)
Appellant has not demonstrated that one year between crimes is remote, and there is no established time limit to determine remoteness for all cases. (See People v. Branch (2001) 91 Cal.App.4th 274, 284 [30-year-old uncharged sex offenses admissible under section 1108].) Further, contrary to appellant’s argument, there is no requirement that the victims be similar. (See People v. Cromp (2007) 153 Cal.App.4th 476, 480.) Nor is there a requirement that the sex crimes be similar. (People v. Frazier (2001) 89 Cal.App.4th 30, 40–41.) “Such a requirement was not added to the statute because ‘doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which [section 1108] is designed to overcome, ... and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not ‘specialists, ’ and commit a variety of offenses which differ in specific character.’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984.)
Appellant conceded in the trial court that joinder of the sex crimes was proper, and did not show potential prejudice under any of the relevant factors––cross-admissibility of evidence, inflammatory evidence, or bolstering a weak case. (See People v. Sandoval, supra, 4 Cal.4th at pp. 172–173.) He did not argue that evidence in the two cases was inadmissible in each other case, or that inflammatory charges as to one victim would have the spillover effect of bolstering a weak case. He merely argued that the two cases, while not weak, could be shown to be “not strong” if he could make his conflicting defenses known to the trial court in an ex parte hearing. Appellant explained that by conflicting defenses, he meant that he intended to testify regarding one victim but not the other.
The trial court continued the hearing to give appellant time to file written opposition to the prosecution’s motion, with the statement of proper grounds for the objection. The court also suggested that appellant file a written motion to sever the sex charges, and to show good cause in a supplement to be filed under seal, for an ex parte hearing on his potential defenses.
Appellant did none of these things. At the continued hearing, he conceded that joinder was correct, and made the same argument––that his defense evidence could show the two cases to be weak if the cases were tried separately––and again requested an ex parte hearing to do so. The court granted the prosecution’s motion to join the offenses for trial, impliedly denying the oral request for an ex parte hearing, and overruling appellant’s objection.
Viewing the circumstances at the time of the joinder, we conclude that appellant did not meet his burden to show a substantial danger of prejudice in trying the sex charges together, and the court did not err in granting the prosecution’s motion. (See People v. Soper, supra, 45 Cal.4th at p. 774; People v. Bradford, supra, 15 Cal.4th at p. 1315; Pen. Code, § 954.)
C. Joinder of the Solicitation Charge Was Not an Abuse of Discretion
Appellant also contends that the trial court abused its discretion in joining the sex crimes with the solicitation to murder charge.
At the time the prosecution filed a motion to consolidate the two cases, appellant sought a separate trial on the solicitation charge, arguing that it was not of the same class of crime as the sex offenses. He also argued that because the evidence of the sex crimes was inflammatory and the evidence of solicitation weak, the jury would likely be unduly swayed by a “spillover” effect.
The trial court believed that solicitation to murder was a violent crime, and thus in the same class as sexual assault. Neither party has found authority supporting or refuting the court’s belief. However, the court also reviewed the relevant three traditional factors of “cross-admissibility of charges; tendency of the charges to inflame the jury; [and] the bolstering of a weak case....” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222, fn. 11.) The court held that evidence of the solicitation would be admissible in the rape case to show consciousness of guilt, and that all the charges were inflammatory, but because one was not more so than the other, joinder would not be prejudicial. Relying upon the prosecution’s description of the evidence, especially evidence corroborating the testimony of the inmate witness, the court found that the solicitation case was not so weak that it would be bolstered by the evidence of the other charges.
Cross-admissibility of evidence is ordinarily sufficient, standing alone, to dispel any prejudice and justify the joint trial of the charged offenses. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221.) The trial court correctly held that evidence of the solicitation would be admissible in a separate rape trial to show consciousness of guilt. (Cf. People v. Daly (1992) 8 Cal.App.4th 47, 56 [evidence of attempted murder of police officer admissible to show a consciousness of guilt of robbery and kidnapping charges].) Further, evidence of the rape would be admissible in a separate solicitation trial to show appellant’s motive in soliciting the murder. (See People v. Jenkins (2000) 22 Cal.4th 900, 948–949.) Finally, we have already concluded that the evidence of the two sex crimes was cross-admissible under section 1108, to show appellant’s propensity to commit sex crimes.
The trial court limited the jury’s consideration of Donald’s testimony to the charges in which Gregory was the victim, counts 9 and 10. The court instructed the jury that the uncharged crime could be considered as evidence of appellant’s plan or scheme and as evidence of disposition to commit the crime.
As the trial court correctly found cross-admissibility of evidence, and appellant failed to show that other factors required separate trials, we conclude that appellant has not shown that the trial court’s ruling exceeded the bounds of reason. We thus find no abuse of discretion. (See Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220.)
D. Appellant Has Not Shown Gross Unfairness
Appellant contends that even if the trial court’s rulings are correct, the joinders resulted in gross unfairness, depriving him of his due process right to a fair trial. To justify reversal on this ground, appellant bears a “high burden” to demonstrate gross unfairness. (People v. Soper, supra, 45 Cal.4th at p. 783; see also People v. Rogers (2006) 39 Cal.4th 826, 851.) To meet his burden, appellant must show actual prejudice––that had the jury not heard the evidence of the more inflammatory offense, there was considerable likelihood that it would not have found defendant guilty of the offense jointly tried with it. (See People v. Earle (2009) 172 Cal.App.4th 372, 409 (Earle).)
Appellant argues that unfairness resulted because the charges were disproportionately inflammatory and the evidence of the rape of Veronica was weaker than the evidence of forcible sodomy. To illustrate his point, appellant relies on Earle, supra, 172 Cal.App.4th 372. In Earle, the trial court had joined a misdemeanor indecent exposure charge with an unrelated charge of assault with intent to commit rape. (Id. at p. 378.) The appellate court found that misdemeanor indecent exposure had no tendency in reason to show a propensity to commit rape. (Id. at pp. 387–390, 400.) After reviewing all the evidence, the court held that the joinder resulted in gross unfairness, because the assault case was weak, the indecent exposure evidence was inflammatory in the context of that case, and the prosecution’s argument amplified its inflammatory nature. (Id. at pp. 409–411.) The court reversed, finding “a considerable likelihood that had the jury not heard evidence of the indecent exposure, it would not have found defendant guilty of the assault.” (Id. at p. 409.)
Appellant’s analogy fails, because he has not shown the likelihood of a different result. Indeed, nowhere does appellant contend that had the jury not heard the evidence of the assault upon Gregory, it would probably not have found him guilty of the rape. He merely argues that the sexual assault of a man is far more inflammatory than the rape of a girl with whom he claimed to be acquainted, because of the popular prejudice against homosexuality. He also argues that solicitation to murder is far more heinous than either forcible sodomy or rape, because it involved an intent to kill. Unfairness results when one jointly tried charge is significantly more inflammatory than the other. (See People v. Jenkins, supra, 22 Cal.4th at p. 948.) Which offense is more inflammatory here is debatable; as the trial court found, all the sex charges are inflammatory and “horrible, ” but it cannot be said that an assault on a man is more inflammatory that an assault on a 14-year-old girl. Nor can it be said that an unsuccessful solicitation to murder is more heinous than actual, numerous brutal attacks.
Appellant’s analogy to Earle fails for the additional reason that he has not shown that the evidence presented to prove the rape charge was weak, and thus subject to a spillover effect from the sodomy evidence. (See Earle, supra, 172 Cal.App.4th at p. 409.) Appellant’s sole analysis consists of tersely concluding that the evidence of the rape was “not as strong” because Veronica delayed all day in reporting the assault and appellant had an explanation for her injuries. Appellant has failed to examine all the evidence, as the appellate court did in Earle. He omits any discussion of the very strong physical evidence of his guilt, such as the presence of his sperm in a vaginal lavage taken from Veronica, or expert testimony that Veronica’s injuries were consistent with strangulation, and inconsistent with “hickies, ” which appellant claimed she had prior to the attack.
Appellant also contends that the solicitation evidence was weak, but he did not argue that the solicitation charge was affected by the evidence of other charges. Appellant’s argument also suggests a contention that the solicitation evidence had a spillover effect on the other charges, but that is very unlikely, considering that the jury was unable to reach a verdict on the solicitation charge.
We conclude that appellant’s scant analysis of the evidence is insufficient to meet his high burden of establishing that the trial was so grossly unfair that he was denied due process of law. (See People v. Soper, supra, 45 Cal.4th at p. 783.)
II. Section 1108 Is Not Unconstitutional
Appellant contends that section 1108 deprived him of a fair trial, and violated his right to due process under the United States Constitution, by permitting the jury to consider propensity evidence. Appellant also contends that his constitutional right to equal protection was violated, because section 1108 permits the use of propensity evidence against sex offenders, but other offenders are protected by the requirements of section 1101, subdivision (a), which prohibits propensity evidence.
Appellant does not claim that he objected to propensity evidence on constitutional grounds, and has thus not shown that he preserved these issues for appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 869 [claim that improper admission of evidence violated due process waived by failure to raise in trial court].) In any event, appellant’s contentions are without merit.
Appellant acknowledges that our Supreme Court decided in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), that section 1108 did not violate the due process clause of the United States Constitution, but he asks that we reconsider Falsetta in light of the Ninth Circuit opinion in Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), which held that using other crimes as evidence to infer propensity violates due process.
Garceau was reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202.
We find Garceau to be inapplicable, as the other crimes evidence in that case did not involve section 1108, but rather, other crimes evidence that was clearly inadmissible under section 1101. The Ninth Circuit noted that our Supreme Court had found the error harmless, but disagreed, and held that under the facts of the case, the erroneously admitted propensity evidence deprived the defendant of a fair trial, and thus due process. (Garceau, supra, 275 F.3d at pp. 775–776.) Thus, Garceau does not demonstrate that the ruling in Falsetta––that section 1108 is constitutional––should be revisited. We are, moreover, bound by the California Supreme Court’s determination in Falsetta, as that case did involve section 1108, and the court rejected the same due process arguments made here. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Although our Supreme Court did not reach the equal protection issue, such a challenge to section 1108 was rejected by another appellate court in People v. Fitch (1997) 55 Cal.App.4th 172, 184, cited with approval by the California Supreme Court in Falsetta, supra, 21 Cal.4th at pages 918 to 920. In Fitch, the court noted that “An equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis. (Estelle v. Dorrough (1975) 420 U.S. 534, 537–538.)” (Fitch, supra, at p. 184.) A rational basis is provided by the Legislature’s determination “that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses.” (Ibid.; see also Falsetta, supra, at p. 915.) We agree with the analysis in Fitch, and reject appellant’s equal protection challenge.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST J., CHAVEZ J.