Opinion
F072233
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. JEROME DRISCOLL, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR050233)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jerome Driscoll sexually assaulted his girlfriend's teenage sister. Weeks later, defendant beat his girlfriend severely and refused to let her leave their home. He was thereafter convicted of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)), false imprisonment (Pen. Code, § 236), and forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(C)). The trial court sentenced defendant to the upper term of four years for corporal injury and the upper term of 10 years for sexual assault, for a total determinate prison term of 14 years. Defendant's three-year sentence for false imprisonment was stayed. (Pen. Code, § 654.)
During trial, the prosecutor introduced evidence of prior uncharged sexual offenses and acts of domestic violence pursuant to Evidence Code sections 1108 and 1109. Defendant argues on appeal that the admission of prior uncharged sexual offenses and acts of domestic violence violated his federal constitutional rights to due process and equal protection. Defendant also argues the evidence should have been excluded under section 352. The People contend defendant forfeited his claims by failing to object at trial but, in any event, defendant's constitutional challenges lack merit under settled law and the court did not abuse its discretion under section 352 when it admitted the evidence.
The Legislature recently amended Evidence Code section 1108 to include specified human trafficking offenses within the statutory definition of "'[s]exual offense.'" (Sen. Bill No. 230, approved by Governor, Oct. 14, 2017 (2017-2018 Reg. Sess.) ch. 805.)
All further statutory references are to the Evidence Code unless otherwise noted.
We reject defendant's claims and affirm the judgment.
FACTUAL SUMMARY
I. Sexual Assault of Grace O.
In October 2014, defendant and his girlfriend, Amanda O., were living together. Amanda's younger sister, Grace O., was 14 years old and lived at home with her parents. In early October, Grace and Amanda's son went to a football game and then to defendant's house. That night, Grace and Amanda were in the living room when they saw something animal-like run past the sliding glass door. They opened the door to look and, seeing nothing, shut it again. Defendant came out of his room. He appeared to be angry and told Grace she had better not have her boyfriend come over. Grace did not know defendant well. She had only seen him on two prior occasions, when he and Amanda came over for dinner. Defendant's anger scared her somewhat and she cried.
That night, Grace slept on the floor of defendant's son's room. The next morning, everything seemed fine again. Defendant and Amanda dropped Grace, Amanda's son, defendant's son and a friend of defendant's son off at a nearby swimming hole. Defendant and Amanda picked them up several hours later in the mid-afternoon and they went back to defendant's house. Amanda told Grace to pick some potatoes for dinner and then left. Defendant's son and Amanda's son were playing video games in the house and had headphones on.
Grace went outside to the garden and was on her knees picking potatoes when defendant came up to her. He did not address her and did not answer when she asked if he needed anything. Defendant grabbed Grace's arms and pushed her toward the tree line. As she struggled, he pulled down her pants and penetrated her vagina with his fingers. Grace kept telling him to stop and she screamed twice. Defendant stopped after she screamed the second time, and she pulled her pants up and went back to the house. Grace testified defendant did not say a word during the assault and his face was expressionless.
Grace, who lived in Coarsegold, did not know the address of defendant's house or where it was located, other than somewhere on Road 600 in the town of Ahwahnee. When she got back to the house, she called her boyfriend and asked him to pick her up at the Hitching Post, a store and bar approximately five miles away. Amanda returned and Grace asked for a ride to the Hitching Post but did not tell Amanda what happened. Amanda told her that defendant would take her.
During the ride to the Hitching Post, Grace was scared. Defendant stroked her left leg during the drive. She kept pushing his hand away and he kept returning it to her leg. She testified that they did not speak during the ride.
When they arrived at the Hitching Post, Grace's boyfriend was waiting for her. He drove her home and, approximately 30 minutes into the drive, she told him defendant had touched her but he was unable to get any further information from her. She appeared quiet and sad. She later told him what happened.
When Grace's father got up for work early the next morning, she told him defendant touched her and "[h]e freaked out." Grace subsequently reported the assault to her school guidance counselor and the counselor called the sheriff's department. As a result of the assault, Grace sustained scratches to her arms, one of which left a scar.
At the time, Grace's mother was out of town caring for her own mother.
II. Domestic Violence Against Amanda O.
Later that month, Amanda called her mother, Paula O. Amanda was scared and said she needed to get out of there. Paula was still out of town caring for her mother so she called a friend of Amanda's, Patricia L., and asked her to pick Amanda up.
Amanda was waiting for Patricia at the bottom of the driveway to defendant's house. Amanda's eyes were black, she was walking slowly, holding her ribs and she was hunched over. The top of her head felt mushy to Patricia and her ribs felt fractured. Amanda told Patricia defendant punched her until she lost consciousness and she then woke up to him punching her. Patricia started to cry because she had "never seen anybody look like that before." Patricia took Amanda to her own house first and then later to Amanda's parents' house. Patricia wanted Amanda to go to the emergency room and file a police report but Amanda refused and it eventually cost them their friendship.
Paula returned home on November 3, 2014, and described Amanda as "brutalized." Amanda had two black eyes and her face was severely beaten. She was unable to stand, walk or lie down to sleep, and she had trouble breathing. She had to stay in a sitting position and needed to be lifted to stand up. Paula testified Amanda told her defendant hit, kicked and stomped her, causing her to pass out. Defendant would wait for her to wake up and then hit her again. Amanda refused to see a doctor, however, and would not allow her parents to photograph her injuries. Paula testified Amanda said she tried to leave on numerous occasions and defendant would not let her.
Paula subsequently contacted the police and on November 7, 2014, Madera County Sheriff's Deputy Brian Cunnings came to the house to take a report. He observed residual bruising around Amanda's eyes and cheeks, and she held her sides in pain. She refused medical treatment, however, and he did not take any pictures because his camera battery was dead. Amanda told Cunnings defendant wanted to know the name of someone who had been at the house and he beat her after she was unable to remember. Amanda also told him defendant would not let her leave. When Cunnings talked to defendant, he denied hitting Amanda but admitted choking her to the ground twice.
III. Prior Uncharged Sexual Offenses and Acts of Domestic Violence
A. Sex Offense Against S.W.
In the spring of 1998, S.W. was 15 years old. Her friends Heidi and Kathryn M. were 14 years old. S.W. testified that she and Heidi contacted defendant to obtain some marijuana. Defendant showed up at S.W.'s house with a friend and the four then smoked marijuana in a trailer next to S.W.'s grandmother's house. S.W. noticed the marijuana had white powder on it. Defendant told her it was cocaine. After she smoked it, she felt "[v]ery, very high" and "[b]lacked out."
Heidi died several years before trial.
Defendant was 19 or 20 years old in the spring of 1998.
S.W. woke up later to find defendant on top of her. It was sometime during the night and still dark outside. Her pants were off but her underwear was still on. Everything was a blur. She pushed defendant and told him to get off of her. He said okay and she blacked out again. S.W. next woke to defendant "telling [her] that if [she] told anyone he would fucking kill [her] and the door shutting on the trailer." S.W. later woke up again and it was daylight. Her bottoms were off but she still had her shirt on. Her vagina was sore, uncomfortable and bloody, and there was blood on the blanket underneath her. S.W. testified she did not tell anyone what happened.
Kathryn M. testified that she was there that night with S.W., Heidi, defendant and defendant's friend. She knew defendant because she had dated his brother. The group was together drinking and smoking pot. Kathryn and Heidi were drunk and lying down on the floor in one of the rooms after "decid[ing] to pass out." Kathryn woke up to Heidi "getting loud with [defendant]." It was approximately 1:00 in the morning and he was on top of Heidi trying to kiss her. Heidi grabbed a pocketknife from her boot and told defendant to get off. Defendant got off and said, "'If you are not going to play, then I'm just going to go play with your friend, [S.W.].'" Kathryn and Heidi went back to sleep.
The next morning, Kathryn gathered her things and her parents picked her up. She did not see S.W. that morning. S.W. later told her and Heidi that defendant had raped her but S.W. did not want to go to the police.
B. Sex Offense Against Danielle G.
In 1999, Danielle G. went to a barbecue at defendant's mother's house with her friend, Greg. She was 14 years old at the time. There were 10 to 15 men present and she was the only girl. People were drinking beer and tequila at the barbecue. Danielle drank a bottle of tequila and was extremely intoxicated. She was unable to walk, talk or stay awake. Danielle drifted in and out of consciousness. She recalled being in a room with coats at some point and throwing up on the bed.
When Danielle came to later, she was outside and some of the people at the barbecue decided defendant would take her home. She did not know him but estimated he was in his early 20's. Defendant drove Danielle to his apartment, telling her he needed to stop and get something first. He helped her inside. Someone else was there and she recalled that person leaving before she blacked out again.
Danielle woke up on the couch without any clothes on. Defendant was on top of her trying to insert his penis into her vagina. Danielle testified she was a virgin so did not really understand what was happening but she felt burning pain in her vagina. She told defendant it hurt and asked him to stop several times. After attempting to penetrate her approximately four times, defendant finally stopped. Defendant told her not to tell anyone because he could get in a lot of trouble. He also told her that he used to watch her walk home from school and he wanted to offer her a ride but was too scared. Danielle testified she was terrified and embarrassed. After defendant took her home, she told her sister what happened.
C. Domestic Violence Against Amber L.
Amber L. had been in a five- to six-year long relationship with defendant and they have one child together. She testified when their son was three or four weeks old, defendant became enraged over a spoiled steak and threw it at Amber. The steak hit Amber in the face and then slid down on their son, who was in her arms. Amber started crying and they started screaming at each other. Defendant slid a long dining table bench into Amber's shins, which caused her to double over in pain. Defendant grabbed two glasses and threw them at Amber.
Amber then put the baby down to clean up the glass. As she was cleaning up, defendant grabbed her, rolled her up in the living room floor rug and started kicking her around. Defendant kicked off Amber's acrylic nails, causing her fingers to bleed. Defendant also kicked her in the face, threw her around and told her that if she told anyone, "he was going to cut [her] up in little pieces and burn [her] in the fireplace." After he was done and walked away, Amber got out of the rug and tended to their screaming son.
That night, they had to pick up defendant's other son, so they drove to North Fork. During the drive, defendant was "socking [her] in the arm," screaming at her over the steak and threatening to chop her up and burn her. When they stopped for gas and defendant went inside to buy a drink, Amber took the truck and drove to her mother's house. Approximately six weeks later, Amber returned to defendant.
Amber testified about another fight during which defendant slammed her head into the bedroom wall five or six times, which knocked a hole in the wall and made her head bleed. Defendant's mother was in the house and tried to intervene but defendant shut and locked the bedroom door. Defendant continued to hit Amber. After his mother said something he did not like, defendant grabbed her by the arm, walked her to her car and made her leave. While defendant was escorting his mother to her car, Amber called her mother at work and asked her to come home. Amber's mother came home and called the police on the way.
Approximately four or five months later, Amber and defendant's relationship ended for good. Amber testified that defendant rolled her up in the rug and kicked her at least once a week, so it happened "all the time." She also testified defendant hit her throughout their relationship and she made numerous reports to the police, but never followed through with them.
DISCUSSION
I. Constitutional Claims
Defendant argues that sections 1108 and 1109 violate the federal due process and equal protection clauses. He concedes, however, that both statutes have long been upheld against such challenges, and he provides neither grounds nor authority that would support revisiting settled precedent. (See People v. Merriman (2014) 60 Cal.4th 1, 46 (Merriman); People v. Loy (2011) 52 Cal.4th 46, 60-61 (Loy).) We find no merit to either constitutional challenge.
The People argue defendant forfeited his claims on appeal by failing to object on the same grounds in the trial court. Defendant contends the objections he made were sufficient to preserve the issues for appeal and it would have been futile for him to object on constitutional grounds given settled precedent. In light of our rejection of defendant's claims on the merits, we need not decide whether forfeiture should apply here. (Merriman, supra, 60 Cal.4th at p. 49, fn. 8; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887-888, fn. 7.)
A. Background
"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 (Cottone).) "The purpose of this evidentiary rule 'is to assure that a defendant is tried upon the crime charged and is not tried upon an antisocial history.'" (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1176.)
Sections 1108 and 1109 represent exceptions to the general rule against propensity evidence. Enacted in 1995, subdivision (a) of section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Enacted in 1996, subdivision (a)(1) of section 1109 provides: "Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
Section 352, discussed in greater detail, post, provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Together, these statutes reflect the Legislature's recognition that sex offense and domestic violence cases involve unique attributes. (People v. Falsetta (1999) 21 Cal.4th 903, 918 (Falsetta); People v. Johnson (2010) 185 Cal.App.4th 520, 532 (Johnson); People v. Jennings (2000) 81 Cal.App.4th 1301, 1313 (Jennings).) They are "secretive offense[s], shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator. The special relationship between victim and perpetrator in both domestic violence and sexual abuse cases, with their unusually private and intimate context, easily distinguishes these offenses from the broad variety of criminal conduct in general. Although all criminal trials are credibility contests to some extent, this is unusually—even inevitably—so in domestic and sexual abuse cases, specifically with respect to the issue of victim credibility." (Jennings, supra, at p. 1313.) The Legislature thus determined that evidence of this type is uniquely probative of a defendant's propensity to commit sex offenses or domestic violence and policy considerations outweighed the general prohibition against propensity evidence. (Cottone, supra, 57 Cal.4th at pp. 285-286; Falsetta, supra, at pp. 911-912; Jennings, supra, at p. 1313.)
B. Due Process
Two decades ago, the Court of Appeal rejected a due process challenge to section 1108 in People v. Fitch (1997) 55 Cal.App.4th 172,184-185 (Fitch). The California Supreme Court subsequently agreed and, relying in part on Fitch, upheld the statute against a due process challenge. (Falsetta, supra, 21 Cal.4th at pp. 917-918, 922.) The high court stated, "To prevail on such a constitutional claim, [the] defendant must carry a heavy burden. The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. [Citations.] In the due process context, [the] defendant must show that section 1108 offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. [Citations.] The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (Id. at pp. 912-913.) The court concluded that because trial courts have discretion to exclude propensity evidence under section 352, section 1108 does not violate the due process clause. (Id. at p. 917.)
Defendant acknowledges section 1109 is a parallel provision to section 1108 (People v. Villatoro (2012) 54 Cal.4th 1152, 1162; Jennings, supra, 81 Cal.App.4th at pp. 1310-1311) and, post-Falsetta, numerous Courts of Appeal have upheld section 1109 against due process challenges (e.g., People v. Brown (2011) 192 Cal.App.4th 1222, 1233, fn. 14 (Brown); People v. Cabrera (2007) 152 Cal.App.4th 695, 704 (Cabrera); People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); Jennings, supra, at p. 1310). In Johnson, the Court of Appeal observed that "[t]he Courts of Appeal ... have uniformly followed the reasoning of Falsetta in holding section1109 does not offend due process" and it rejected the defendant's due process challenge "as having already been settled unfavorably to him." (Johnson, supra, 185 Cal.App.4th at p. 529.) We concur. Section 352 protects defendant's right to a fundamentally fair trial and due process requires no more. (Merriman, supra, 60 Cal.4th at pp. 46-47; People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289; Cabrera, supra, at pp. 703-704.) Defendant fails to identify any grounds for a contrary conclusion and we reject his due process claim. (Loy, supra, 52 Cal.4th at pp. 60-61.)
C. Equal Protection
Courts of Appeal have also rejected challenges to sections 1108 and 1109 on equal protection grounds. (Brown, supra, 192 Cal.App.4th at p. 1233, fn. 14; Jennings, supra, 21 Cal.App.4th at pp. 1310-1313; Fitch, supra, 55 Cal.App.4th at pp. 184-185.) "Neither the federal nor the state constitution bars a legislature from distinguishing among criminal offenses in establishing rules for the admission of evidence; nor does equal protection require that acts or things which are different in fact be treated in law as though they were the same. The equal protection clause simply requires that, 'in defining a class subject to legislation, the distinctions that are drawn have "some relevance to the purpose for which the classification is made."' [Citation.] Absolute equality is not required; the Constitution permits lines to be drawn." (Jennings, supra, at p. 1311; see People v. Valencia (2017) 3 Cal.5th 347, 376.)
In Fitch, the Court of Appeal applied rational-basis scrutiny to section 1108, explaining, "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." (Fitch, supra, 55 Cal.App.4th at p. 184.) In enacting section 1108, "[t]he Legislature determined 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. This reasoning provides a rational basis for the law." (Fitch, supra, at p. 184; accord, People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395.)
Guided by Fitch, another Court of Appeal applied rational-basis scrutiny to section 1109. (Jennings, supra, 81 Cal.App.4th at pp. 1312-1313.) Comparing domestic abuse cases and sexual abuse cases, the Jennings court stated, "The Legislature could rationally distinguish between these two kinds of cases and all other criminal offenses in permitting the admissibility of previous like offenses in order to assist in more realistically adjudging the unavoidable credibility contest between accuser and accused. The facts that other crimes such as murder and mayhem may be more serious and that credibility contests are not confined to domestic violence cases do not demonstrate the absence of the required rational basis for the Legislature's distinction between these crimes." (Id. at p. 1313; accord, Brown, supra, 192 Cal.App.4th at p. 1233, fn. 14; Price, supra, 120 Cal.App.4th at p. 240.) As with his due process challenge, defendant identifies no basis for departure from this established precedent. We therefore reject his equal protection claim.
II. Section 352
Evidence admissible under sections 1108 and 1109 is nevertheless subject to exclusion under section 352 if the probative value of the evidence is substantially outweighed by its prejudicial impact. (People v. Villatoro, supra, 54 Cal.4th at p. 1163; Falsetta, supra, 21 Cal.4th at pp. 917-918; Cabrera, supra, 152 Cal.App.4th at p. 704.) Indeed, section 352 is the safeguard that renders sections 1108 and 1109 constitutional and both statutes incorporate it by reference. (Falsetta, supra, at p. 917; see Johnson, supra, 185 Cal.App.4th at pp. 531-532.)
On appeal, we presume the trial court's evidentiary ruling was correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Trial courts have broad discretion in determining the admissibility of evidence and we review challenges to the admission of evidence for abuse of discretion. (People v. Jackson (2016) 1 Cal.5th 269, 320-321; accord, People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova); Johnson, supra, 185 Cal.App.4th at p. 531.) Under this standard, the court's ruling "'"will not be disturbed, and reversal is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]'" (People v. Lewis, supra, 46 Cal.4th at p. 1286; accord, People v. Jackson, supra, at p. 321.)
A. Prior Uncharged Sexual Offenses Against S.W. and Danielle
"A court deciding whether evidence of one or more sexual offenses meeting the definitional requirements of Evidence Code section 1108 should nonetheless be excluded pursuant to Evidence Code section 352 undertakes a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value. Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses ....'" (Merriman, supra, 60 Cal.4th at p. 41, quoting Falsetta, supra, 21 Cal.4th at p. 917; accord, Loy, supra, 52 Cal.4th at p. 61.)
However, "[t]he word 'prejudicial' is not synonymous with 'damaging.' [Citation.] Rather, evidence is unduly prejudicial under section 352 only if it '"'uniquely tends to evoke an emotional bias against the defendant as an individual and ... has very little effect on the issues'"' [citation], or if it invites the jury to prejudge '"'a person or cause on the basis of extraneous factors'"' [citation]. 'Painting a person faithfully is not, of itself, unfair.'" (Johnson, supra, 185 Cal.App.4th at p. 534.)
In this case, defendant contends the trial court abused its discretion in admitting evidence of the prior uncharged offenses against S.W. and Danielle because the incidents were remote in time; the incidents were dissimilar to the charged offense against Grace; and he was neither charged with nor convicted of any crime, which increased the danger the jury would confuse the issues and convict him to punish him for the uncharged offenses. We are unpersuaded.
The prior offenses against S.W. and Danielle allegedly occurred in 1998 and 1999, respectively, and the 15- to 16-year gap between those incidents and the crime against Grace is not insignificant. However, while relevant, remoteness alone does not compel exclusion of evidence and courts have declined to exclude evidence in cases involving prior offenses even more remote than those here. (Cordova, supra, 62 Cal.4th at p. 133 [18 years]; People v. Hernandez (2011) 200 Cal.App.4th 953, 968 [up to 40 years]; Johnson, supra, 185 Cal.App.4th at pp. 524, 531, 535-536 [18 years]; People v. Waples, supra, 79 Cal.App.4th at p. 1395 [20 years].) As defendant acknowledges, "[i]n assessing remote priors, the cases have examined the details of the past misconduct, comparing them to the details of the currently charged offense, to determine whether the similarities in the two incidents 'balance out the remoteness' of the prior offense." (Johnson, supra, 185 Cal.App.4th at pp. 535-536.)
In our view, the uncharged offenses against S.W. and Danielle and the charged offense against Grace share some striking similarities. Defendant's assertion that the only similarity between the incidents involving S.W. and Danielle is the threat not to tell overlooks other obvious similarities between all three incidents. S.W. and Danielle were both significantly impaired as a result of drug or alcohol use and, while Grace was not impaired, we do not find that distinction to be significant. Instead, what is significant is that all three incidents involved unwanted, uninvited vaginal penetration that occurred when defendant forced himself on victims when they were alone and vulnerable. Defendant assaulted Grace when she was alone in the garden and Amanda was away from the house. Kathryn's testimony indicates defendant assaulted S.W. in a separate room after Heidi pulled the pocketknife and while all three girls were impaired. Instead of driving Danielle home, defendant took her into his apartment and assaulted her there while she was quite impaired. It is also significant that the victims in all three situations were young, teenage girls.
As with other factors, similarity between the uncharged offenses and the charged offense is relevant but not dispositive. (Cordova, supra, 62 Cal.4th at pp. 133-134; Loy, supra, 52 Cal.4th at p. 63.) The California Supreme Court has recognized that "'[i]n enacting ... section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of ... section 1101.' [Citation.] Or, as another court put it, '[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under ... section 1101, otherwise ... section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.'" (Loy, supra, at p. 63.)
Here, the facts are simply not analogous to those in People v. Harris (1998) 60 Cal.App.4th 727, cited by defendant. In that case, the Court of Appeal found the trial court abused its discretion in admitting evidence of a prior uncharged offense and the error was prejudicial. (Id. at p. 741.) However, there was a confluence of unusual factors not present here. (Id. at pp. 737-741.) In particular, the uncharged offense was incredibly violent and the court described the evidence "inflammatory in the extreme." (Id. at p. 738.) In addition, the court found the evidence was remote, nearly irrelevant and likely to cause the jury confusion. (Id. at p. 741.)
As well, we are unpersuaded that the absence of criminal charges or convictions is a significant factor weighing against admitting the evidence. The California Supreme Court has recognized "that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether [the] defendant committed the other offenses." (Falsetta, supra, 21 Cal.4th at p. 917; accord, People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).) However, this recognition reflects but one consideration under section 352 and is not dispositive. (Tran, supra, at p. 1047; People v. Fruits (2016) 247 Cal.App.4th 188, 206-207; People v. Spector (2011) 194 Cal.App.4th 1335, 1390; People v. Morton (2008) 159 Cal.App.4th 239, 246.)
The absence of any criminal charges or convictions in this case is not remarkable given that S.W. did not report the assault and there is no evidence Danielle reported it. However, "the Legislature placed a significant restriction on the scope of section 1108 by limiting admissibility to certain enumerated sexual offenses amounting to crimes." (Cottone, supra, 57 Cal.4th at p. 285.) Thus, as threshold matter, evidence of a prior sexual offense is not admissible unless the offense constitutes a crime under state or federal law, as defined and further limited by the statute. Additionally, evidence of the assault against S.W. and evidence of the assault against Danielle were independent of one another and independent of the evidence of the charged assault against Grace, which courts have recognized enhances the probative value of the evidence. (Merriman, supra, 60 Cal.4th at p. 41; Tran, supra, 51 Cal.4th at p. 1047; Johnson, supra, 185 Cal.App.4th at p. 533.)
Finally, defendant fails to explain how the jury here might have been confused by the evidence. (Merriman, supra, 60 Cal.4th at p. 42.) In this case, the evidence of the prior uncharged acts was neither complex nor extensive. (Johnson, supra, 185 Cal.App.4th at p. 533.)
B. Prior Uncharged Acts of Domestic Violence Against Amber
In arguing that the trial court should have excluded evidence of the prior uncharged acts of domestic violence against Amber, defendant incorporates by reference the arguments he made against the admission of the uncharged sex offenses. Additionally, he contends that the prosecution presented no corroborating evidence, Amanda's "testimony bore no similarity to the alleged uncharged acts of domestic violence," and evidence of the crime against Amanda "was less than overwhelming."
As we have explained, a criminal charge or conviction would reduce any potential prejudicial impact, but its absence does not compel exclusion of prior uncharged offenses under section 352. (E.g., Tran, supra, 51 Cal.4th at p. 1047.) Like the offenses against S.W. and Danielle, the evidence of the uncharged acts against Amber was independent of the evidence of the charged offense against Amanda, which enhances probative value. (E.g., Merriman, supra, 60 Cal.4th at p. 41.) Corroboration was not required.
Moreover, contrary to defendant's argument, the uncharged acts and the charged offense are not dissimilar. Amanda did not describe any abuse that resembled that described by Amber, as defendant asserts, but this point overlooks the existence of other compelling evidence of abuse. It is quite clear from the record that Amanda was a reluctant, uncooperative witness and even though she had not seen defendant since the day Patricia picked her up, she would not confirm whether any abuse ever occurred. Paula and Patricia, however, both described shocking injuries. Paula described Amanda as "brutalized." Patricia cried at the sight of Amanda and testified, in part, that the top of Amanda's head felt mushy. As well, Deputy Cunnings described residual bruising around Amanda's eyes and cheeks, and he testified she held her sides when she walked and she winced in pain. All three witnesses testified that Amanda identified defendant as the cause of her extensive injuries. While there is no photographic evidence, as defendant contends, Paula and Patricia testified Amanda refused to seek medical attention or allow her injuries to be photographed, and Patricia testified that Amanda was not a "compliant" person. Cunnings also testified Amanda declined medical attention and he did not take any photographs because his camera was not operable when he took Amanda's statement.
Amanda was late to court and she stated she did not want to be there. She denied having any injuries to her eyes or any trouble walking on the day Patricia picked her up, and she described herself as "[b]eautiful" that day. She also denied ever telling her mother or Patricia that defendant beat her until she blacked out and then beat her again when she woke up. She invoked the Fifth Amendment more than once in response to questions and, when that was not successful, answered she did not know. She testified she did not know if defendant ever injured, hit, punched, choked, kicked or slapped her.
Thus, Paula, Patricia and Cunnings's testimony regarding Amanda's injuries was consistent, and defendant's description of the evidence as "less than overwhelming" is simply not supported by the record. In our view, the evidence that Amanda was brutally beaten by defendant was compelling, and the uncharged and charged acts are strikingly similar, painting a picture of a man who acts out on his rage by subjecting his girlfriends to vicious and prolonged physical attacks.
Based on the foregoing, we find that the uncharged propensity evidence in this case was highly probative and was not substantially outweighed by its prejudicial impact. As such, the trial court did not abuse its discretion under section 352 when it admitted evidence of the uncharged offenses against S.W., Danielle and Amber.
Because we find defendant's claims fail on their merits, we do not consider whether any error in admitting the evidence was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
DETJEN, J.