Opinion
A146345
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY BUGAI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN223050)
I. INTRODUCTION
A jury found appellant guilty of multiple offenses, including several sex crimes, that were committed against undocumented immigrant men between 2008 and 2014. Appellant was sentenced to an aggregate term of 65 years to life in prison. He seeks reversal of the judgment on the grounds of the erroneous admission of uncharged conduct evidence, failure to properly instruct the jury, and ineffective assistance of counsel. We affirm.
II. STATEMENT OF FACTS
In November 2013, Luis G., an undocumented immigrant from Guatemala, filed a police report about a 2008 incident when he was kidnapped and sexually assaulted by a man who identified himself as a police officer. Following appellant's arrest for those crimes, other victims came forward, which led to the multiple charges that were presented to the jury in this case.
A. Luis G.
One night in November 2008, Luis was at the El Trebol Bar in San Francisco's Mission District with a friend named Andy, who he had met doing construction work. Appellant approached them while they were sitting at the bar drinking. He was wearing a blue uniform and spoke Spanish, telling them they had to leave because they were "way too drunk," and that they were under arrest. As appellant took the men by the arms, Luis did not resist because he believed appellant was a police officer. Outside, appellant put handcuffs on Luis and Andy and placed them in the back seat of a blue, four-door Ford that looked like an undercover car. Appellant spoke to a man in the driver's seat who was dressed like appellant and wore sunglasses. Luis did not understand the conversation because they spoke in English. Then appellant placed black cloth covers over the heads of Luis and Andy. After traveling for around 30 minutes, somebody opened the door and told the men to get out. Appellant removed the head covers and handcuffs and said something to the driver, who drove off.
Appellant took the men inside a house and told them to empty their pockets. Luis turned over his phone, wallet and a ratchet wrench. Appellant took them in a room and made them kneel in front of a television and watch a movie showing two men having sex, telling them they had to watch this because it was the best there was. Appellant retrieved a bottle of light brown liquor from the kitchen. Andy drank shots. Luis refused, but appellant yelled at him until he drank, although Luis spit out what he could. Andy fell asleep and Luis could not wake him. Then appellant grabbed Luis by the arm and lifted him off the ground. Luis, who was five feet four inches tall and weighed 125 pounds, told appellant to leave him alone and began to cry.
Appellant put his arm around Luis's neck, squeezing tight. Ignoring Luis's protests, appellant led him into the kitchen, where he began to touch Luis in his crotch area. Appellant tugged on Luis's jeans, saying he wanted to have a good time and to "suck it." Luis told him to stop, struggled to keep his pants on, and said he did not like men touching him. Appellant got angry and said that "illegals" were all weak. He said he was a policeman and if Luis told anybody about what had happened he would have Luis arrested and deported. Luis was screaming and crying. With his arm around Luis's neck, appellant started to turn, causing both men to fall to the floor. Appellant laid on his back and pulled Luis on top of him. Appellant told Luis he was using a "technique" on him as he wrapped his arms and legs around Luis's body and squeezed tight, as though he was trying to knock Luis's breath out of his body. This went on for about 20 to 30 minutes, while appellant repeatedly touched Luis's genitals from outside his pants and told Luis what he wanted to do to him, but never succeeded in pulling Luis's pants down. When Luis could catch his breath, he would call out for help.
Finally, a man appeared at the top of the interior staircase. He was white, with long hair and spoke to appellant in English. Appellant lifted Luis off the ground, all of a sudden acting like he wanted to be friends as he walked Luis back toward a bedroom. Luis was frightened and began trying to look for a way out. When appellant said he had to go to the bathroom and turned away, Luis grabbed his wrench and hit appellant on the back of his head. Appellant went down on a knee. Luis grabbed his wallet and phone and appellant's phone and ran out of the house. He told his wife about the incident, but did not contact the police because he was scared and thought that nobody would believe him.
Several years later, in 2013, Luis was driving with his wife when he saw appellant leaving a Costco parking lot in a white car that had what looked like a police light on the back. Luis pulled his car over to block appellant's exit and got out. Appellant asked what was going on, speaking in English. Luis responded that he knew appellant spoke Spanish and that he was the person who had tried to rape him. Appellant said he did not know Luis and then said "check this out," and returned to his car, turned it around and drove away.
A few months later, on November 2, 2013, Luis was coming out of a bank when he saw appellant standing outside his car talking on his phone. Luis took photographs with his phone and made a police report that same day. The officer who took that report ran the license plate of the car in the photo, identified appellant as the owner and conducted a computer search, which linked appellant's name to several other police reports.
B. Police Investigation
San Francisco Police Sergeant Sean Perdomo was assigned to investigate whether appellant was engaging in criminal activities. One early morning in May 2014, Perdomo saw appellant on the street near the El Trebol Bar at around 1:35 a.m. He was dressed in a uniform, wearing a utility belt equipped with a baton, Taser, and radio. He also wore a black jacket with a silver seven-point star pinned to his chest that resembled stars commonly worn by San Francisco police officers. Appellant was yelling "Do you want to go home?" at a small Hispanic man whose back was up against a wall. At around 2:10 a.m., Perdomo saw appellant again, driving a white Ford Crown Victoria, a vehicle commonly used by police officers. Appellant stopped in front of the El Trebol, got out of the car and approached three Hispanic men who had come out of the bar. Appellant ushered the men into the back seat of the car and drove them to a residence where they all went inside.
On June 14, 2014, appellant was arrested on charges unrelated to the present case. During a search of appellant's home, police recovered several uniforms that looked like police or sheriff uniforms, some with city and county emblems attached; two loaded firearms, several magazines, and several hundred rounds of ammunition; a variety of pills, including methadone, hydrocodone, oxycodone, fluoxetine; an oral syringe containing liquid residue; and a vial of liquid morphine. They also found several emergency response lights in appellant's Ford Crown Victoria.
The June 2014 charges against appellant were dropped and appellant was released from custody. Nevertheless, he requested a police interview. On June 21, 2014, Perdomo and another officer conducted that interview. Appellant exhibited bizarre behavior during the meeting, which lasted more than four hours and was finally terminated at the insistence of the officers. At one point during the interview, Perdomo asked appellant if he had ever been struck in the head with a wrench. After registering surprise, appellant reported that he was assaulted by an illegal immigrant. Initially, appellant claimed he was struck while the man was attempting to make appellant do "something he didn't want to do," something "perverted," adding that "Hispanic people are perverts." Later in the interview, appellant admitted that the man who hit him had rejected appellant's sexual advances. Appellant stated that he was a homosexual who was attracted to heterosexual males, and he admitted that on 40 or 50 separate occasions he had made sexual advances toward heterosexual males who not only rejected him but hit him in the process.
On July 10, 2014, appellant was arrested for kidnapping and assaulting Luis G. After appellant's arrest was reported in the media, several people came forward to report that appellant had presented himself as a police officer and committed crimes against them.
C. Miguel M.
On New Year's Eve in 2007, Miguel M. was a 19-year-old undocumented immigrant from Mexico who had been living in San Francisco for a few months, did not speak English, and did not know his way around the city. That night, he spent time at the El Trebol Bar, leaving at around 2 or 2:30 a.m. He saw appellant, assumed he was a police officer because of the way he was dressed, and asked for directions. Appellant responded in Spanish, telling Miguel that he was a police officer and that he could help him get home. While they were sharing a cab, appellant invited Miguel to his house to celebrate with his wife.
Once inside appellant's house, Miguel became suspicious because there was no wife there. He repeatedly said he wanted to leave, but appellant kept saying that his wife was about to arrive. Miguel refused alcohol but accepted appellant's offer of a glass of water. What he drank looked and tasted like water. The next thing he remembered he was waking up on a bed, with his pants off and appellant performing oral sex on him. Miguel tried to push appellant away, but he felt weak, had a headache, and appellant was much bigger than was he. Appellant told him to calm down and that he would like it. Then appellant held Miguel down and forced or tried to force Miguel to engage in sodomy. Throughout the ordeal, Miguel said he wanted to leave and he never consented to any sexual contact.
Miguel ran from the house while appellant was in the bathroom. Appellant came out and yelled to Miguel from the front door that he was the police, that he would kill Miguel, and that Miguel was going to get deported. Miguel did not make a police report because he felt shame, disgust, and like a "piece of garbage." For Miguel, being a man and having something like that happen to him was "worse than dying."
D. Tomas G.
One night in the summer of 2013, Tomas G. was walking down a street in the Mission District looking for a place to eat. Appellant drove up in a white car that had a red light affixed to the front driver's side dashboard. Appellant got out of the car, opened his passenger door and told Tomas to get in. Appellant was wearing a jacket that had the word "Police" printed on the back, and carried a gun in a belt at his waist. Appellant spoke Spanish to Tomas, who was an undocumented immigrant from Guatemala. Tomas got in the car because he believed appellant was a police officer. As appellant drove, Tomas tried to explain that he was just looking for a restaurant and asked to be let out. Appellant told him not to worry, that he knew a place.
Appellant then drove Tomas to a house and gave him a drink that tasted like vodka. Tomas started to feel sick and dizzy. Appellant offered Tomas two Tylenol, which he took. Tomas, who was five feet one inch and weighed 125 pounds, thought he might faint. Appellant led him to a room where he passed out. When he woke up the next day, Tomas was naked on the bedroom floor with appellant lying next to him. Appellant performed sex acts on Tomas, and orally copulated him for approximately an hour. Throughout the ordeal, Tomas was frightened, said he wanted to leave, and tried to resist, but he was much smaller than appellant. Tomas did not immediately report appellant because he believed that appellant was a police officer and that he would be arrested if he made a report.
E. F.C.
F.C. was an undocumented immigrant from Honduras, who spent a lot of time at the El Trebol Bar, where both of his sisters worked as bartenders. F.C. often saw appellant there, too. Appellant told people at the bar that he was a police officer. He dressed like a policeman, carried a gun and people believed that he was in fact a police officer. One night, in December 2013, F.C. was leaving the bar when appellant offered him a ride home. F.C. accepted the ride and gave appellant directions, but when appellant started driving in a different direction, F.C. asked to be let out. Appellant touched his gun and said no, they were going to appellant's house.
When they arrived at appellant's house, and went into the living room, appellant removed his gun from his waistband. He said he was going shooting the next day and then loaded bullets into the gun. He told F.C. to load some bullets as well. F.C. had not been around a gun before and did not want to do it. But he complied, fearing for his life and his family. Appellant placed the gun on top of a table and told F.C. to take off his clothes. F.C. refused, but appellant became angry and more serious, and repeated the command. F.C. unbuttoned the top button of his shorts but then stopped. Appellant unzipped F.C.'s shorts as F.C. kept telling him not to do it. Appellant grabbed both of F.C.'s wrists, holding them in one hand behind F.C.'s back, and used his other hand to pull down F.C.'s shorts and boxers.
Appellant made F.C. lie on the floor; F.C. did not resist because he thought appellant would kill him. Still holding F.C.'s wrists, appellant orally copulated him for several minutes until he ejaculated. F.C. repeatedly said no and tried to resist. Afterward, appellant gave F.C. a ride to the Mission, dropping him off a block from his house. F.C. did not tell anybody what happened because he was afraid and ashamed. After the incident, he saw appellant at the bar and appellant said, "All of you guys are fucking immigrants that can be deported whenever we want."
F. Juan C.
In February 2014, Juan C. was walking home from work at around 11 p.m., carrying a six pack of beer in a plastic bag. Appellant pulled up in a white car, got out and told Juan to stop. Juan complied because appellant was wearing a police uniform. Appellant told Juan that it was illegal to carry beer on the street, and said he was going to give Juan a ticket. He asked for ID and Juan showed him an identification card issued by the Consulate of Guatemala. Appellant said that he would let Juan go if he gave appellant $500. Juan did not have that much money and offered to accept the ticket but then agreed to give appellant what he had, which was $180. As appellant returned to his car, he said, "Fucking undocumented." Juan did not immediately report the incident because he thought he had been robbed by a police officer.
G. The Case Against Appellant
An October 2014 information charged appellant with 32 offenses, which included multiple forcible sex offenses allegedly committed against Luis, Miguel, Tomas and F.C., and a charge that he committed extortion against Juan. All of these victims testified at appellant's 2015 jury trial. The jury also received a detailed account of the police investigation through the testimony of Officer Perdomo and others. Three other prosecution witnesses are relevant to the issues on appeal.
1. Joseph Spaulding
From August to December of 2008, Spaulding rented a room in the house where appellant lived. Appellant's bedroom was on the first floor of the house, and Spaulding and three other men rented rooms on the second floor. Spaulding tried to avoid appellant, who was aggressive, difficult, and openly racist, describing all Hispanic men as stupid, dirty, and bisexuals. Appellant worked nights and told Spaulding that he was a police officer.
Spaulding testified about an incident he witnessed in November 2008. At around 7:00 a.m., Spaulding was awakened by noise and heard someone yelling "no" and screaming. Based on what other roommates had told him, Spaulding's first thought was that appellant was having sex with someone. Eventually, the sound brought Spaulding downstairs. From the landing, he saw appellant on top of a small Hispanic man on the living room floor. Spaulding asked what was going on. Appellant said the man had come to the house with his brother, who was a friend of appellant's, had gotten drunk and out of control and hit appellant, so appellant was holding him down. Then appellant got off the man, who got up quickly and picked up a tool that looked like a wrench, which he put in his pocket. The man looked panicked as he rushed out the front door of the house. Appellant followed the man out, closing the door behind him.
Then Spaulding went into the kitchen where he found another Hispanic man looking in the refrigerator. Spaulding did not talk to the man before returning to his room. Nor did Spaulding see appellant again until that night. Appellant told Spaulding that he had gone to the hospital to get stiches because the man hit him in the back of the head with a hammer and then ran off with his phone.
2. Manuel Borrero
Between 2005 and 2010, Borrero rented a room in the house where appellant lived. Borrero also did some training work with appellant in connection with his employment as a security guard. During the time Borrero and appellant were roommates, appellant brought Hispanic men to the house more than 30 times. Appellant spoke to these men in Spanish, which Borrero did not understand, but he did observe that appellant often used a threatening tone. Borrero saw and heard "wrestling" in the living room on multiple occasions. On three or four occasions, he saw appellant put handcuffs on a Latino man. More than 10 times, Borrero was awakened by yelling from appellant's downstairs bedroom, and would have to go bang on appellant's door. On seven or eight other occasions, Borrero was in the living room when appellant touched a Latino man's groin area over his pants. These men usually looked uncomfortable.
Sometimes Borrero attempted to help men who appellant brought to the house by telling them that appellant was a bad guy and was not a police officer, but it was difficult to communicate because he did not speak Spanish. Also, appellant became angry when he learned that Borrero had tried to talk to the men he brought home.
Borrero once saw appellant open a capsule, pour its contents into a bottle of beer, and then hand it to a Latino man who emerged from the bathroom. Borrero told appellant that he could not "do that" and tried to communicate to the man that he should not drink the beer. Borrero also testified about an incident that occurred in a Jack-in-the-Box restaurant. While they were sitting at a table near other customers, appellant had a loud phone conversation with a friend during which he described sex acts that he performed on men.
3. Lourdes Reyes
On October 7, 2003, Lourdes Reyes called the Hayward Police Department to make a complaint against appellant. That day, Reyes answered a knock at her front door, and found appellant standing there. He identified himself as a police officer and then pulled out a silver badge from his hip pocket and flashed it at her. Appellant said he lived in the neighborhood and asked Reyes what type of alarm system she had, how it was wired, and whether it had a panel. Reyes told appellant she would not discuss her alarm system with him, but said she would tell her husband about their conversation and took appellant's telephone number. After appellant left, Reyes reported the incident to the police because she did not believe appellant was really a police officer and thought he was trying to trick her.
H. The Defense Case
During his opening statement to the jury, appellant's trial counsel outlined the following defense: Appellant was a licensed security officer, a job he had been performing for 10 years in the Mission District of San Francisco. It was part of appellant's job to protect bars and restaurants from people who got too drunk or rowdy. In 2008, appellant was the victim of an assault, which he reported that same day. Several years later, the man who assaulted appellant accused him of kidnapping and sexual assault. Police knew appellant because of his work in the neighborhood and decided to arrest him. After news of the arrest was reported in the Spanish news media, other alleged victims came forward. However, the alleged victims all had something to gain by making false allegations against appellant. Appellant did not kidnap anyone, forcibly orally copulate anyone, or engage in forced sodomy with anybody.
1. Trial Witnesses
Witnesses called by the defense included an experimental psychologist, who offered expert opinions about the unreliability of memories that are influenced by post- event information that may not be accurate. A nurse testified about medical records showing that appellant obtained treatment for a head injury in November 2008. The nurse also offered her opinion that medication found in appellant's home was not commonly used to commit date rape. Several officers were questioned about reports they took from victims in this case. A woman who worked for a nonprofit sanctuary group testified about "u-visas," which create a "special status for immigrant victims of certain serious crimes in the United States who were helpful or [are] currently helpful or likely to be helpful to the police in the investigation or prosecution of a crime." David Padilla, the owner of the El Trebol Bar, testified that appellant worked for him as a security guard for eight years. Padilla also testified that he was familiar with u-visas and that they were a "pretty regular" subject of discussion at the bar.
2. Appellant's Testimony
Initially, appellant elected not to testify. But while the jury was deliberating, appellant made a motion to represent himself and to present his own statement to the jury. After much discussion, the motion for self-representation was denied, and the court granted a defense motion to reopen the evidence so appellant could testify about his relationship with the complaining witnesses.
Appellant, who was 36 at the time of trial, testified that he obtained his license to be a private patrol officer in 2002, and completed his training in 2004. Between 2008 and 2014, appellant worked for the El Trebol Bar, a few restaurants and a night club. For the El Trebol, his primary function was to "abate criminal activity through a visual presence—just being a sober, lucid person in that area around a bar, walking around, being vigilant." While on duty, appellant carried a Taser. He did not carry a gun, although he was licensed to do so. Appellant denied that his uniform "looks a lot like a police officer uniform," testifying that "a police officer uniform says 'Police' and mine says 'Private Patrol.' " Appellant also denied ever telling anyone he was a "police officer." Appellant referred to himself as a "private patrolman, a patrol person, patrol officer, private patrol officer."
Appellant gave the following account of the evening of November 22, 2008: He met his friend Andy at the El Trebol to celebrate his recent birthday and the fact that Andy had been offered a job on the East Coast. A man he did not know at the time joined their table. That man, who appellant subsequently learned was Luis G., knew Andy in some way appellant could not recall. The three men left the bar together and drove to appellant's house in Andy's car. Andy provided a bottle of alcohol, and at Andy's prodding Luis took a couple of shots. Then Luis started to talk about a subject that "disgusted" and "enraged" appellant. Andy told appellant to ignore Luis, but appellant decided to engage him in the subject matter and "the atmosphere became a lot less friendly." While Andy was in the kitchen getting something to eat, Luis approached appellant, grabbed his hand and pulled it toward Luis's crotch as he made a nasty comment. Appellant aggressively pushed Luis back and then Luis punched appellant in the eye. At that point, the "party was over." Appellant tackled Luis and put him in a wrestling hold. Then he told Luis that he was going to let him up and that Luis was to leave the house and never come back. Luis started to scream for Andy, which brought appellant's roommate Joseph Spaulding downstairs. When Luis saw Spaulding, he stopped fighting and went limp. Then appellant told Luis to leave, physically moving him out of the house, and through the front gate to the sidewalk. When appellant turned to go back inside, something hit the back of his head, and blood began spraying out of him. He fell to the ground and took his cell phone out because he thought he was dying and wanted to try and call 911. But Luis wrestled the phone out of his hands. The next thing appellant remembered was waking up in a hospital bed.
During his June 2014 interview with Officer Perdomo, appellant repeatedly denied knowing anybody named Andy.
Appellant testified that the three other men who were accusing him of sexual offenses all spent time at the El Trebol. Describing Miguel M. as a friend, appellant testified that they did not have a "dating" relationship per se, but that he and Miguel had "consensual sexual encounters" on two or three occasions between 2010 and 2012. According to appellant, Tomas G. was a "drinking buddy" of Miguel's. Appellant testified that he never had any sexual contact with Tomas, who was not his "type." However, he and F.C. had a "very similar relationship" to the relationship appellant had with Miguel. Appellant and F.C. "had an oral sex-based sort of relationship," which consisted of two or three consensual sexual encounters. According to appellant, neither Miguel nor F.C. ever expressed any "displeasure" about their relationship with him, but both men did express "extreme concern for their safety and well-being and embarrassment" with regard to being involved in homosexual relationships.
Appellant testified that he was also familiar with Juan C., who he described as a "frequent flyer at El Trebol." Appellant denied taking money from Juan or threatening to give him a ticket for carrying beer. However, appellant did recall an incident when Juan attempted to bring beer into the El Trebol, which was not allowed.
I. The Jury Verdicts
The jury returned 18 guilty verdicts, many of which were accompanied by true findings as to related sentence enhancement allegations.
Before the case was submitted to the jury, the trial court granted appellant's motion for an acquittal of a charge that he kidnapped Andy. Appellant was found not guilty of charges pertaining to a seventh alleged victim, Franklin F., who we do not discuss in this opinion.
Also, appellant was charged with two counts of impersonating a police officer in order to detain or arrest a person (Pen. Code, § 146a, subd. (b)(1)), and four counts of using an official uniform, insignia or device to impersonate a public peace officer (§ 538d, subd.(a)). Four of these charges were dismissed before the case was submitted to the jury, and the other two resulted in not guilty verdicts.
As to Luis G., appellant was convicted of false imprisonment (Pen. Code, § 237); assault with intent to commit a felony (§ 220, subd. (a)(1)); attempted oral copulation by force (§ 664, 288a, subd. (c)(2)(A)); and attempted oral copulation under color of authority (§ 664, 288a, subd. (k)).
Regarding Miguel M., the jury found appellant guilty of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)); oral copulation by anesthesia or controlled substance (§ 288a, subd. (i)); sodomy by force (§ 286, subd. (c)(2)(A)); sodomy by anesthesia or controlled substance (§ 286, subd. (i)); and assault with intent to commit a felony (§ 220, subd. (c)(1)). Subsequently, the trial court modified the verdicts with respect to the sodomy convictions, finding appellant guilty of attempted sodomy by force and attempted sodomy by anesthesia or controlled substance.
As to Tomas G., the jury convicted appellant of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)); oral copulation by anesthesia or controlled substance (§ 288a, subd. (i)); sexual battery by restraint (§ 243.4, subd. (a)); and administering a drug to assist in the commission of a felony (§ 222).
The jury found that appellant committed the following crimes against F.C.: forcible oral copulation (Pen. Code, § 288a, subd. (c)(2)(A)); assault with intent to commit a felony (§ 220, subd. (a)(1); sexual battery by restraint (§ 243.4, subd. (a)); and false imprisonment (§ 237).
Finally, the jury convicted appellant of extortion (Pen. Code, § 520) based on the incident involving Juan C.
III. DISCUSSION
The issues on appeal all pertain to uncharged conduct evidence admitted pursuant to the testimony of appellant's former neighbor, Lourdes Reyes, and former roommate, Manuel Borrero. Specifically, appellant contends that (1) all of this testimony was inadmissible character evidence; (2) if this evidence was admissible, the court failed to provide appropriate limiting instructions; and (3) defense counsel's failure to request appropriate limiting instructions constituted ineffective assistance of counsel.
A. Background
On December 17, 2014, the trial court held a hearing on in limine motions. Both sides submitted written motions that day. Appellant's set of motions included a general request to exclude "all reference to any prior bad acts," which did not discuss any particular witness or subject. One of the prosecutor's motions sought to admit evidence of the October 2003 Reyes police report as probative of appellant's intent and common plan to present himself as a police officer in order to facilitate his commission of the charged crimes.
At the pretrial hearing, there was a brief discussion between the court and prosecutor about the Reyes incident. Defense counsel did not substantively contribute to the discussion or otherwise object to the Reyes evidence. The court took the motion under submission, stating that it needed to see the evidence before making a ruling. Later in the hearing, when the court addressed defense motions, there was no substantive discussion of the motion to exclude references to any prior bad acts. The court simply took that motion under submission.
On January 14, 2015, Manuel Borrero was called to testify as a prosecution witness. Before that testimony was presented, the court held an Evidence Code section 402 hearing outside the presence of the jury. There was no prefatory statement regarding the impetus for that hearing. After testifying about how he knew appellant, Borrero testified about threatening remarks appellant had made about Latino males, including threats directed at Borrero himself. He also described events when he observed appellant interacting with Latino males, including the incident when appellant poured the contents of a capsule into a bottle of beer that he gave to a Hispanic man. After defense counsel briefly examined Borrero about the beer bottle incident, the court stated that the purpose of the section 402 hearing was to determine whether Borrero had "actual knowledge," and that fact had been established. After both counsel stated they had no further questions, the court called for the jury.
Before the jury returned, defense counsel stated that he wanted to make it clear he was "objecting to this person's testimony," and to make a record of his objection. Counsel argued there was no evidence tying the beer bottle incident to any alleged victim in this case, or even establishing that a Hispanic man drank the beer. Thus, defense counsel concluded, "this witness should not be allowed to testify. It's 352." The trial court disagreed, finding the evidence admissible under Evidence Code section 1101, subdivision (b), as probative of a common scheme or method of operation, preparation, and possibly motive and intent. The court also made findings under Evidence Code section 352 that this evidence was not more inflammatory than other similar evidence before the jury and would not be unduly time consuming.
As our factual summary reflects, the prosecutor examined Borrero about the incident when appellant put a substance in a man's beer and many other interactions appellant had with Hispanic men. The prosecutor did not question Borrero about his personal problems with appellant. However, the defense did explore those issues during cross-examination, in an apparent effort to challenge Borrero's credibility.
Reyes testified six days after Borrero. Following her brief testimony, the trial court gave the jury a limiting instruction regarding this "previous incident in 2003." Specifically, the court stated: "It can't be considered by you on the issue of whether the Defendant has any propensity to do anything in particular. It can only be used as circumstantial evidence of intent or a common scheme and design or method of operation."
Near the end of trial, the court conferred with counsel about jury instructions. Using a "stack" of CALCRIM instructions proposed by the prosecution, the court conducted an inquiry with both counsel about what instructions to give, and what modifications would be appropriate. When discussion turned to "behavior by the defendant that was not charged," the court suggested that an instruction on this issue was appropriate in light of the Reyes testimony. The prosecutor agreed, and discussed modifying the standard instruction to specifically address the Reyes evidence. Once again defense counsel did not substantively contribute to this discussion, except to concur with the court's suggestion to include a sentence reminding the jury that the prosecution still had to prove charging allegations beyond a reasonable doubt.
The instructions that were delivered to the jury a few days later included a specific instruction about evidence that "the defendant claimed to be a police officer to Lourdes Reyes." The jury was instructed that it could consider this evidence only if the People had proved by a preponderance of the evidence that the defendant committed this act. The jury was also told that if the act was proven, it could, but was not required to, consider the Reyes incident for "the limited purpose of deciding whether or not the defendant acted with the intent to impersonate a police officer in the charges in this case or whether or not the defendant had a plan or scheme to commit the various offenses in this case through impersonation." The jury was told to evaluate the evidence in terms of similarity or lack of similarity to the charged offenses; not to consider the evidence for "any other purpose'; and not to "conclude from this evidence that the defendant has a bad character or is disposed to commit crime." Finally, the jury was instructed that if it concluded that it could consider the Reyes incident, that evidence was not sufficient by itself to prove any of the crimes alleged, and that "[t]he People must still prove each charge and special allegation beyond a reasonable doubt."
B. The Evidence Rulings
Appellant contends that the trial court committed reversible errors by permitting Reyes and Borrero to testify at trial because their testimony amounted to bad character evidence, which was inadmissible under Evidence Code section 1101 (section 1101).
Section 1101 establishes the general rules governing the admissibility of evidence of a defendant's uncharged misconduct. Under this provision, "[e]vidence of defendant's commission of other crimes, civil wrongs or bad acts is not admissible to show bad character or predisposition to criminality, but may be admitted to prove some material fact at issue such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. [Citations.] Because evidence of a defendant's commission of other crimes, wrongs, or bad acts ' "may be highly inflammatory, its admissibility should be scrutinized with great care." ' [Citation.]" (People v. Cage (2015) 62 Cal.4th 256, 273 (Cage).) "Specifically, the uncharged act must be relevant to prove a fact at issue (Evid. Code, § 210), and its admission must not be unduly prejudicial, confusing, or time consuming (Evid. Code, § 352)." (People v. Leon (2015) 61 Cal.4th 569, 597-598 (Leon).) Trial court rulings on these issues, being essentially determinations of relevancy, are reviewed for abuse of discretion. (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
1. The Reyes Incident
Appellant argues that the Reyes incident was so different from the present case, that it was not relevant or admissible to prove either that appellant intended to misrepresent himself as a police officer or that he committed the charged offenses pursuant to a common plan or scheme.
As noted, appellant did not oppose the prosecutor's in limine motion to admit the Reyes evidence, either in writing or at the pretrial hearing. Furthermore, although appellant filed a pretrial motion to exclude all bad act evidence, the court never ruled on that motion. Under these circumstances, it was incumbent on appellant to raise the specific issue concerning Reyes's testimony when the prosecutor called Reyes as a witness. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 371, 408 (Bryant).) However, appellant did not make a section 1011 objection when Reyes testified at trial. Thus, he forfeited the right to object to her testimony on appeal. (Bryant, at p. 408.)
Looking past forfeiture, we conclude that appellant's claim also fails on the merits. The relevance of an uncharged act "depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact. [Citation.] 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' [Citation.] Greater similarity is required to prove the existence of a common design or plan. In such a case, evidence of uncharged misconduct must demonstrate ' "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]' [Citation.]" (Leon, supra, 61 Cal.4th at p. 598.)
The Reyes evidence was relevant to prove appellant's intent in this case. Although the uncharged incident did not involve allegations of a sex crime, Reyes testified that appellant sought her out, told her he was a police officer, and used that claim of authority to attempt to extract private information from her. Similarly, several victims of the charged offenses claimed that appellant presented himself as a police officer in order to coerce them into yielding to his demands. This similarity between the Reyes incident and charged offenses was strong enough to support an inference that appellant probably harbored the same intent in both instances. Furthermore, the Reyes incident carried little danger of undue prejudice as it was much less inflammatory than the charged crimes, and it did not consume much time or create any confusion for the jury.
A better argument is made that the Reyes incident was not probative of a common plan or design. Aside from the fact that appellant misrepresented himself as a police officer, the Reyes incident did not have many common features with the charged crimes, either in terms of the type of victim appellant targeted or the type of crimes appellant allegedly committed. Nevertheless, any error with respect to the admission of the Reyes testimony for that additional purpose was harmless. (People v. Williams (2009) 170 Cal.App.4th 587 [applying standard of People v. Watson (1956) 46 Cal.2d 818, 836 to evaluate error in admission of uncharged act evidence].) As our factual summary demonstrates, the prosecution presented a strong case against appellant, which directly supported the guilty verdicts. In light of this evidence, it is not reasonably likely that appellant would have obtained a more favorable result even if evidence of the Reyes incident had been completely excluded.
2. Borrero
Appellant contends that Borrero should not have been permitted to testify because his observations of appellant were too "vague and ambiguous" to raise an inference that the charged offenses were all committed pursuant to a common plan or scheme. By the same token, appellant argues, Borrero's testimony was "ambiguous, and hardly probative of his intent in any of the charged offenses."
As our background summary shows, appellant made a discrete objection to Borrero's testimony that he observed appellant pour a substance in a bottle of beer. Appellant did not object that Borrero's other observations of appellant were inadmissible under Evidence Code section 1101, or on any other ground. However, appellant now contends that all of Borrero's testimony was inadmissible character evidence. Again, appellant failed to preserve this claim of error. His specific objection to the beer bottle incident does not authorize a broad challenge to all of Borrero's testimony. Furthermore, appellant's wholesale attack is improper in light of the fact that Borrero testified about several distinct matters, some of which were raised for the first time during cross-examination.
As to the beer bottle incident, we agree with the trial court that this evidence was relevant to prove a common plan. "[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 403; see also Leon, supra, 61 Cal.4th at p. 598.) Here, the fact that Borrero witnessed appellant pouring a substance into the beer of a Hispanic guest while that person was in the bathroom is sufficiently similar to charges pertaining to Miguel and Tomas to be evidence of a common plan.
Furthermore, if appellant's broader challenge to the balance of Borrero's testimony was not forfeited, we would find that all of Borrero's observations regarding interactions appellant had with Hispanic men in his home were relevant, admissible evidence of a common design. Borrero's observations of appellant demonstrate circumstantially that appellant committed the charged offenses pursuant to a common design or plan to isolate and exploit undocumented immigrant men so that he could overcome their resistance and attempt to force them to participate in sexual activity with him. Additionally, this evidence was not unduly prejudicial; Borrero's testimony was prejudicial because it was highly probative of appellant's plan, not because it uniquely tended to evoke some unfair emotional bias against him. (See Cage, supra, 62 Cal.4th at p. 275.)
Appellant complains that the Borrero evidence was not limited to observations of appellant's interactions with Hispanic men. He argues that Borrero's testimony about appellant's cell phone conversation at the Jack-in-the-Box portrayed him as a "disagreeable and unsavory character," and that testimony appellant kept guns at his home(s) painted him as a "dangerous person." First, the Jack-in-the-Box incident was innocuous when compared to the charged crimes and other trial evidence about appellant's sexual activities, including appellant's own statements during his voluntary meeting with Officer Perdomo. Second, the jury heard about the firearms and ammunition that was recovered from appellant's home during the search that was conducted after he was arrested in 2014, and thus Borrero's brief discussion of that topic could not have been prejudicial.
C. Jury Instructions Regarding Uncharged Conduct Evidence
Appellant contends that the trial court committed a separate independent error by failing to give the jury a limiting instruction with regard to Borrero's testimony.
" '[T]he trial court ordinarily has no sua sponte duty to instruct the jury as to the admissibility or use of other crimes evidence.' [Citations.] This principle is consistent with section 355, which provides that the trial court, 'upon request,' shall instruct the jury about evidence admitted for a limited purpose." (People v. Cottone (2013) 57 Cal.4th 269, 293.) In this case, appellant's trial counsel did not request a limiting instruction regarding the Borrero testimony, either when that testimony was first presented or as part of the formal instructions read to the jury at the end of the presentation of evidence. Thus, the failure to give such an instruction is not error.
Appellant contends that once the trial court decided to give a limiting instruction with respect to the Reyes testimony, a duty arose to instruct about the limited admissibility of the Borrero testimony as well. As support for this claim, appellant relies on People v. Key (1984) 153 Cal.App.3d 888 (Key). The Key court reversed a rape conviction because the trial court erroneously admitted testimony regarding defendant's uncharged acts to rebut his consent defense. The court then found that defendant's other convictions also had to be reversed because a jury instruction regarding the uncharged conduct evidence did not limit the jury's consideration of that evidence to the rape charge. (Id. at pp. 898-899.) As to this latter ruling, the court explained that, "although there is no sua sponte duty to give limiting instructions to tell jurors the precise purposes for which the evidence of prior criminal misconduct may be used [citation], when a trial court does give such an instruction specifically calling their attention to the significance of this substantially prejudicial evidence, it should do so accurately." (Id. at p. 889, italics omitted.)
Key is inapposite. The jury instruction in that case was inaccurate for two connected reasons: it permitted the jury to consider inadmissible evidence, and it failed to limit the use of that evidence to the allegedly relevant charge. (153 Cal.App.3d at pp. 898-899.) In this case, by contrast, the Reyes testimony was admissible and the instruction correctly advised the jury regarding the limited purposes for which it was admitted. Nonetheless, appellant argues instead that the instruction was fatally incomplete because it also did not address Borrero's testimony. Key does not support this claim. Indeed, appellant cites no authority supportive of this theory because the pertinent case law establishes that the trial court had no sua sponte duty to instruct the jury regarding the limited purpose of the Borrero evidence. (People v. Cottone, supra, 57 Cal.4th at p. 293.)
D. Assistance of Counsel
Appellant's final claim of error is that he was denied the effective assistance of counsel because his trial counsel failed to request a limiting instruction with respect to the Borrero testimony. To prove an ineffective assistance claim, appellant has the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance, first by showing that trial counsel's performance was deficient, and then by establishing prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas); see also People v. King (2010) 183 Cal.App.4th 1281, 1298 (King).)
Under the first prong of this test, counsel's performance was deficient if it fell below an objective standard of reasonableness under prevailing professional norms. (Lucas, supra, 12 Cal.4th 436; King, supra, 183 Cal.App.4th at p. 1298.) "In reviewing counsel's performance, we 'exercise deferential scrutiny.' [Citations.]" (King, at p. 1298.) We "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (Lucas, at pp. 436-437.)
Here, there is a tactical explanation for the fact that appellant's trial counsel did not request a limiting instruction with respect to Borrero's testimony. "Counsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted. [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 495.)
The crux of the case against appellant was that the charged offenses were all part of a common scheme to sexually assault undocumented immigrant men. Because Borrero's testimony was highly probative of that theory, defense counsel could have made a reasonable tactical choice to avoid further references to the testimony whenever possible. Indeed, counsel appears to have pursued just this tactic during his closing remarks to the jury when he made this argument: "Mr. Borrero obviously had his problems and you all saw it. I don't feel the need to go into that. I think you all understand what happened."
Limiting instructions specifically call a jury's "attention to the significance of . . . substantially prejudicial evidence." (Key, supra, 153 Cal.App.3d 899.) By electing not to request a limiting instruction, defense counsel avoided calling the jury's attention to the significance of Borrero's testimony. Furthermore, since the court was already giving a limiting instruction with respect to the Reyes incident, defense counsel could have made a calculated decision to attempt to shift the jury's focus away from Borrero and toward the more remote and less damaging Reyes incident. In that way, the jury was instructed about the key point that uncharged conducted evidence is not evidence of bad character, but was not reminded about the significance of Borrero's testimony.
Even if appellant could show that his trial counsel performed deficiently, he cannot carry his burden of proving prejudice by demonstrating that " 'there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' [Citation.]" (Lucas, supra, 12 Cal.4th at p. 436.) Appellant's theory of prejudice is that the absence of an instruction allowed the jury to consider "extremely damaging and negative character evidence concerning appellant" without limitation. However, the primary reason that Borrero's testimony was so "damaging" was because it was probative of a common plan. If the jury had been expressly told to consider the evidence for only that purpose, and not as evidence of appellant's bad character, it is not reasonably likely that the outcome of this case would have been different.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
KENNEDY, J. /s/_________
RIVERA, J.
Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------