People v. Pinaire

Full title: THE PEOPLE, Plaintiff and Respondent, v. TERRY PINAIRE, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Mar 9, 2020

No. H044338 (Cal. Ct. App. Mar. 9, 2020)

Opinion

H044338

03-09-2020

THE PEOPLE, Plaintiff and Respondent, v. TERRY PINAIRE, Defendant and Appellant.

ELIA, ACTING P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1073444)

Defendant Terry Pinaire appeals from a judgment of conviction of multiple sexual offenses against multiple victims. On appeal, defendant argues that the court (1) denied his Sixth Amendment right to counsel by granting his March 2015 Faretta motion (see Faretta v. California (1975) 422 U.S. 806 (Faretta)), (2) prejudicially abused its discretion in denying his requests for advisory counsel in May of 2015 and February of 2016, (3) committed reversible error by allowing the prosecution to present evidence of his conduct in 1994, and (4) violated the constitutional prohibitions against ex post facto laws by imposing certain penalty assessments based on a $70 fine imposed pursuant to Penal Code section 264.¹ Defendant asks this court to reverse his convictions and remand for a new trial. In the event that this court rejects his first three contentions, defendant asks us to modify the judgment to reflect the corrected assessments. Lastly, defendant asserts that the inference of retroactivity recognized in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies to the amendment of section 667.5, subdivision (b), (Stats. 2019, ch. 590, § 1; Sen. Bill No. 136 (2019-2020 Reg. Sess.) (SB 136)) and requires this court to strike the true finding on the prior prison term enhancement allegation.

1 All further statutory references are to the Penal Code unless otherwise stated.

We will remand the matter to allow the trial court to strike the one-year prior prison term enhancement and recalculate the penalty assessments based on the $70 fine.

I.

Procedural History

Following a jury trial, defendant was found guilty of forcible rape (§ 261, subd. (a)(2)) (count 1); three counts of forcible sexual penetration (§ 289, subd. (a)(1)) (counts 2, 3, and 4); and two counts of assault with intent to commit rape, oral copulation, sodomy, and/or sexual penetration by force, fear, or threats (§ 289) (counts 5 and 6). The crimes involved four female victims. As to the forcible rape of which the jury found defendant guilty (count 1), the jury found true that the crime had been committed during the commission of a burglary with intent to commit rape (§§ 460, subd. (a), 667.71, subd. (b), 667.61, subd. (e)) and that defendant had been convicted in the present case of committing an offense against more than one victim (§§ 667.61, subd. (b), 667.61, subd. (e)). As to each of the forcible sexual penetrations in counts 2, 3, and 4, the jury also found true that the crime had been committed during the commission of a burglary with intent to commit sexual penetration by force, fear, or threats (§§ 460, subd. (a), 667.71, subd. (b), 667.61, subd. (e)) and that defendant had been convicted in the present case of committing an offense against more than one victim (§§ 667.61, subd. (b), 667.61, subd. (e)).

In a separate trial, the court found true an allegation of a prior violent or serious felony conviction within the meaning of the Three Strikes law (§§ 667, subd. (b)-(i); 1170.12) and a prior prison term allegation (§ 667.5, subd. (b)). Subsequently, the People informed the court that defendant's prior out-of-state conviction did not qualify as a "strike" under California law, and the court impliedly granted the People's request to strike its true finding on the Three Strikes allegation.

Defendant was sentenced to a total indeterminate term of 50 years to life consecutive to a determinate term of eight years and four months. In sentencing defendant, the court stated: "[T]he court without hesitation can say that this one of the most heinous, gratuitously violent cases [that] the Court has ever observed. The crimes were unimaginably scary for the victims. They had a devastating effect on the victims and their lives. [¶] One of the victims was raped while her child was in the other room . . . All of these women were violated in their own home[s] because . . . they trusted you. And somehow you gained access and abused that trust. [¶] So the Court finds this to be an extraordinarily horrific situation." The court found no factors in mitigation.

The total determinate sentence of eight years and four months consisted of the aggravated term of six years on count 5, a consecutive one-third the midterm of 16 months on count 6, and a consecutive one-year prior prison term enhancement. The total indeterminate sentence consisted of consecutive 25-years-to-life terms on counts 1 and 3. The court also imposed a concurrent, aggravated term of eight years on count 2 and a concurrent, aggravated term of eight years on count 4.² The court also made a number of other orders and imposed certain fines, fees, and assessments.

2 The court ordered the sentence on count 2 to run concurrently with the sentence on count 1 and the sentence on count 4 to run concurrently with the sentence on count 3.

II.

Evidence

Offenses Against Jane Doe 1 (Counts 1 and 2)

Jane Doe 1 was born in Taiwan, and her native language was Mandarin. She lived in Taiwan for 25 years before coming to the United States in 1996.

In October and November of 2002, Jane Doe 1 was living in an apartment in San Jose. She was married and had a two-and-a-half-year-old girl. During that time, the apartment complex was being remodeled, and there were "a lot of workers in and out of the area."

On or about October 30, 2002, after her husband had gone to work and while Jane Doe 1 was home with her daughter, someone knocked at the door to their second-floor, one-bedroom apartment. Jane Doe 1 saw a man, who looked like a worker, through the peephole. She opened the door because she thought that he had come to fix a leaky faucet. He indicated that he was there to check her pipes, and she let him in. The man looked in the under-the-sink cabinet and acted as though he saw a problem. He asked her how many bathrooms there were, and she told him that there was one bathroom in the bedroom. He checked out that area, and then he told her that he would be back and left.

The man returned on November 11, 2002, after Jane Doe 1's husband had left for work and while she was home alone with her daughter. Jane Doe 1, who was then 31 years old, heard a knock on the door and looked through the peephole. She recognized the man from his prior visit and opened the door. The man asked whether somebody had fixed the problem, and she replied no. The man entered her apartment. He first went back to the kitchen and kneeled down, supposedly to see the problem with the pipes. They then went to the bathroom so she could show him the leaky faucets.

In the bathroom, the man grabbed Jane Doe 1, covered her mouth, and shocked her with a stun gun multiple times. She lost feeling and urinated in her pajama pants. The man pushed her and she fell into the bathtub, and he used the stun gun on her again. The man pulled her up, had her lie on bathroom floor, and removed her pajama pants.

Jane Doe 1 grabbed the bathroom scale to try to hit the man, but he took it away and threw it out of the bathroom. She said, "Don't do this." The man dragged her out of the bathroom and into the hallway. She asked him to close the door to the bedroom, where her daughter was sleeping, because she did not want her daughter to be hurt. She stopped resisting because she was afraid that he would hurt her badly or hurt her daughter.

The man tore Jane Doe 1's pajama top and licked both her nipples. He licked her between the legs. He put his finger in her vagina. He said, "You want to lick my penis." She did not answer. He took out a condom and put it on his penis. He got on top of her and put his penis in her vagina. After he ejaculated, the man removed the condom and put it in his shirt pocket.

The man went into the bathroom to get a towel and suggested that Jane Doe 1 wipe her herself with it and take a shower. He used the towel to wipe the scale. She did not take a shower. He looked into the bedroom and told her that her daughter was still sleeping. He asked her name, but Jane Doe 1 pretended that she did not speak English. The man said something about calling the police, which she took as a warning not to call the police. He grabbed a letter from the computer desk in the living room, asked whether the name on the letter was hers, and kept it. The man said that he would be back and left through the front door.

After a couple of minutes, Jane Doe 1 went to the front door and locked it. She called her husband at work. He called the police and officers came to her apartment.

Jane Doe 1 was examined at the hospital, and photographs were taken. Karen Quesada, a registered nurse and forensic examiner, performed a SART (Sexual Assault Response Team) examination on Jane Doe 1 on November 11, 2002. Quesada testified at trial as an expert in the collection of evidence and in determining whether a patient's injuries are consistent with reports of sexual assault. Jane Doe 1 described the sexual assault to Quesada. She reported that she had been assaulted by a stun gun and that the perpetrator had licked both nipples, licked her vaginal area, and penetrated her vagina with a finger and with his penis using a condom. Quesada observed that she had a swollen upper lip and dried blood on her lower lip and that her pajama top was ripped and its buttons were missing.

Quesada saw multiple areas of stun-gun strikes and abrasions from its prongs. Quesada had never before seen so many injuries from a stun gun on one person. During the genital exam, Quesada observed areas of redness. She collected vaginal swabs and clothing from Jane Doe 1. Quesada found that Jane Doe 1's injuries were consistent with her account of the sexual assault.

After the medical exam, Jane Doe 1 never returned to the apartment where the assault had occurred. Her family moved to another area.

In March of 2010, a San Jose police sergeant in the sexual assaults investigation unit was assigned to investigate some sexual assaults that had occurred in 2001 and 2002. The FBI's CODIS system, a national database, had produced a hit on defendant, who was then in Iowa. During a search pursuant to a warrant of the Iowa residence of defendant's mother, the officers located some of defendant's documents that showed that he was in Alameda County in 2001 and 2002. A credit card statement showed he had made purchases in Hayward, in San Leandro, and at a San Jose gas station. A DNA sample was obtained from defendant pursuant to a warrant.

At trial, Lynne Burley, a supervising criminalist and DNA technical leader with the Santa Clara County District Attorney's Crime Laboratory (crime lab), testified as an expert in the field of forensic sciences, specifically in the area of DNA analysis. Burley reported that semen, which contained spermatozoa, was found to be present on a vaginal swab taken from Jane Doe 1. Two DNA profiles were generated from the vaginal swab, one of which was from Jane Doe 1.

Burley testified that the crime lab made a cutting from the underwear that had been collected from Jane Doe 1 and that the "EC fraction" of DNA originated from Jane Doe 1 and the "sperm cell fraction" of DNA was consistent with Jane Doe 1 and her husband. But a DNA expert with the Serological Research Institute (SRI) found defendant's semen in a different area of her underwear, which was toward the front of the crotch.

Gary Harmor, the executive director and chief forensic serologist of SRI in Richmond, California, was called by the defense and testified as a DNA expert. He reported that seminal fluid in Jane Doe 1's panties matched defendant and that there was only a 1 in 290 quintillion chance that it could be somebody else. Burley testified that if Jane Doe 1 had put on underwear after being raped, it would not have been unusual for the perpetrator's semen to have drained from the vaginal cavity simply due to gravity.

Kristin Cardosa, a criminalist with the crime lab, testified as an expert in forensic science, specifically in the analysis of DNA. She developed a reference DNA profile of defendant from a swab sample taken from him. She determined that the DNA profile that was developed from the "sperm cell fraction" of the vaginal swab sample taken from Jane Doe 1 matched defendant's reference DNA profile. Cardosa calculated "a random match probability." The probability that a person randomly selected from the population would match the "sperm cell fraction" DNA profile was "greater than 1 in 300 billion." She stated that 300 billion was approximately 40 times the earth's population.

At trial, Jane Doe 1 identified defendant as the person who sexually assaulted her. Offenses Against Jane Doe 2 (Counts 3 and 4)

Jane Doe 2 was born in Hong Kong and lived there for 18 years. Her native language was Cantonese. She had come to the United States in 1990.

In November of 2001, Jane Doe 2, who was then 41, was living with her husband and two daughters in a townhouse in Fremont. After her husband had gone to work and her daughters had gone to school, the doorbell rang. She was expecting a friend and opened the door. A man standing at the door said that he had a parcel for her neighbor. Jane Doe 2 told the man that the neighbor was not home. The man said, "Get somebody that can speak English," and, "Go get your husband." She said, "He's not home."

At that point, the man pushed her into her home, causing her to fall back onto the living room carpet, and came in. He grabbed her and pulled down her underwear and leggings. He stuck his fingers into her vagina. She tried to fight him and twist away. The man rolled her onto her stomach and stuck his fingers in her anus. She continued to struggle, and ended up on her back again. The man pulled up her T-shirt and her bra and sucked on her nipples. He commented that she had big breasts. While she was struggling, he grabbed a cushion and covered her face, which made it difficult to breathe. After about 10 seconds, she turned her head and tried to grab something, a PlayStation, with which to hit him. He pulled out the cable and pushed it away. At some point, the man called her a whore and told her she was stinky. He punched her beneath her breast, in her stomach area, and in the face.

The phone rang, and the man suddenly stopped. He asked, "Where is [sic] your car and your car keys?" He then opened the front door and ran out. She called 911. She felt pain under her breast and in her back and wrists.

Officers arrived while she was still on the phone with the 911 dispatcher. They took her to the hospital. She was examined, and photographs were taken.

Kathleen Watts, a registered nurse, was working as a SART nurse on November 15, 2001. When Watts first saw Jane Doe 2 she was very distraught and traumatized; she was crying and shaking. During the physical examination, Watts observed that she "had a lot of redness and swelling around her neck" and her face was swollen, "particularly the left side of her face around her eye." "She had bruising and swelling on her wrists and upper shoulders" and "she had bruising on both of her upper arms." There was inflammation in her vaginal area.

Jane Doe 2 reported that she had been hit in the face, chest and abdomen and that she had been held down by her arms and wrists. She disclosed that he had put his fingers into her vagina and rectum and that he had fondled and kissed and licked her breasts. She said that her wrists had been bound with a cable. Watts saw ligature abrasions.

Watts found that Jane Doe's injuries were consistent with sexual assault. Jane Doe 2 did not allow Watts to do a rectal exam or a vaginal examination with a colposcope. Watts took a swab of Jane Doe 2's right breast.

Elizabeth Skinner, a criminalist assigned to the forensic biological unit of the crime lab, testified as an expert in the area of DNA analysis. Skinner was initially able to develop a partial DNA profile from Jane Doe 2's swab. Skinner performed additional testing on the swab in 2010, by which time the technology had improved, and she generated a full DNA profile. Skinner was able to isolate the male DNA and generate a male DNA profile from the DNA obtained from the Jane Doe 2's swab. When she ran the male component of the profile against the crime lab's database, it was found to match a vaginal swab taken from Jane Doe 1.

Expert Burley compared the DNA sample obtained from Jane Doe 2's breast to the reference DNA buccal sample from defendant. Burley performed the statistical calculation called "random match probability," which is the probability that someone chosen at random from the population matches the profile, on the "deduced male profile" that Skinner had developed by "subtract[ing] out the DNA profile for Jane Doe 2." She determined that "the combination of alleles from the deduced profile [was] expected to occur in approximately 1 in 730 trillion individuals."

In addition, when the Y-STR profile that was developed from the swab of Jane Doe 2's breast was used to search a database of Y-STR profiles of 8,376 males, Burley observed the profile three times in the database. Y-STR DNA profiles are not unique, unlike autosomal DNA profiles. Y-STR analysis targets the Y chromosome and reveals "just DNA that's present on only the Y chromosome." Offense Against Jane Doe 3 (Count 5)

Jane Doe 3 was born in Taiwan, and her native language was Mandarin. She had taught music in Taiwan and come to the United States in 2000 to obtain a master's degree. At the time of trial in 2016, she was married and had two children; one was seven years old and other was 11 years old.

In July of 2002, when Jane Doe 3 was approximately 27 years old, her husband and she were living in a ground-floor, one-bedroom, one-bath apartment in Fremont. Her children were not yet born. On the morning of July 26, 2002, after her husband had left for work, she was in her car, which was parked in the assigned carport spot, and her plan was to go to the library and then to the gym. She started the car, but then she saw a man, who appeared to be talking to her, in front of her car. Since she could not hear him, she turned off the engine and got out of the car. The man pointed to the door of her apartment and asked whether she knew who lived in the apartment. Jane Doe 3 said that she lived there. The man told her that he needed to check the pipe in the apartment and asked whether she had a minute to open the door.

Jane Doe 3 let the man into her apartment. He went into the kitchen area, kneeled on the floor, and opened the cabinet beneath the sink. He asked her to remove her recycling, which she did. After appearing to check the pipe, he said that he needed to check the bathroom. In the bathroom, he kneeled down, opened the cabinet, and appeared to check the pipe. He stood, pointed at her bedroom door, and asked whether there was another bathroom. After she responded no, the man told her that the needed to get some tools and then return.

At this point, Jane Doe 3, who was 5 feet 2 inches tall, was facing the front door and looking up at the man, who she estimated was six feet tall and was standing in front of her. The man asked whether he had her permission to re-enter the apartment, and Jane Doe 3 said, "Yes, you can get keys from the manager." The man then touched her between the legs with his hand. She was wearing workout clothes—specifically, a T-shirt and tight capri pants. The man grabbed her and started to hit her in the face and head. He was standing in front of her and blocking her exit.

The man punched Jane Doe 3 in the head and face many times, grabbed her, put his arm around her, and forced her to the floor. At some point, her glasses, which she had been wearing, fell to the ground. She was curled in a ball on the ground. From behind her, he put a hand under her shirt and sports bra and grabbed her breasts, making skin-to-skin contact. He rubbed her nipple back and forth. The man also put a hand in her pants, touching her buttocks, and then moved his hand between her legs. Jane Doe 3 was trying to resist and escape him. The man touched her vagina. He said he would kill her. She responded, "Please don't kill me." He said, "I'm going to fuck you. You like the animal way. Don't yell. Don't cry. I will kill you. I'll come back and kill you." She begged him to spare her life. The man kept punching her and touching her.

Suddenly the man stopped and got up. He said, "I will come back and kill you," and left. Jane Doe 3 got up from the floor, closed the door, and locked it. She ran to the bedroom and called her husband, who did not pick up. She then call 911, but when the operator said the number of her apartment unit, she "freaked out" because she thought she was talking to her attacker. She opened the sliding door to the patio, jumped the fence, and ran to the leasing office.

Jane Doe 3 and the apartment manager walked back to her apartment, and they found the police knocking on the front door. After making contact with the police, she went to the hospital. Photographs were taken of her.

On July 26, 2002, Martha Tate was working as a registered nurse at the hospital, and Tate examined Jane Doe 3. At trial, Tate testified as an expert in the collection and preservation of evidence and determining whether injuries are consistent with sexual assaults.

Jane Doe 3, who was upset, told Tate that her attacker had punched her in the face, pinched or squeezed her nipple, and said, "I will fuck you in the ass. You bitch. You like it the animal way." He put his hand down her pants, and threatened to kill her. She reported to Tate that he whispered, "If you cry out I can kill you. . . . Don't cry out. I will come back. I will kill you." She reported that the attacker attempted to penetrate her vagina with a finger.

When Tate conducted a SART exam of Jane Doe 3, Tate found a number of abrasions, tender areas, redness, a laceration, and bruises. Jane Doe 3 did not permit her to conduct an exam using a speculum. Tate collected all of Jane Doe 3's clothing, including a pink T-shirt, pink bra, black stretch pants, and white underwear.

At trial, Tate testified that the results of the examination were consistent with what Jane Doe 3 had reported to her. At trial, Jane Doe 3 identified defendant as her attacker. She was not sure whether defendant had put his finger inside her.

Criminalist Cardosa was asked to look for contact DNA on Jane Doe 3's clothing. Cardosa swabbed the exterior, rear surface of the waistband of Jane Doe 3's pants and obtained a DNA mixture of at least two individuals. Based on a reference DNA sample from Jane Doe 3, Cardosa determined that Jane Doe 3 was the source of the major DNA component. She determined that the minor contributor of DNA was at least one unknown male.

Cardosa entered the "minor profile" of the unknown male into the lab's in-house, quality-control database. The search produced links to the Jane Doe 1 and Jane Doe 2 cases. She also performed Y-STR analysis, and the Y-STR profile indicated that at least two males had contributed to the sample taken from Jane Doe 3's waistband.

Burley found that the DNA profile obtained from the swab of the exterior, rear surface of Jane Doe 3's waistband was consistent with Jane Doe 3, defendant, and potentially a third individual. She calculated a likelihood ratio, comparing the possibility that the DNA from the waistband consisted of "DNA from Jane Doe 3, [defendant], and an unknown individual" to the possibility that the DNA from the waistband consisted of DNA from Jane Doe 3 and "two random individuals." She determined that it was "284,000 times more likely [that] the DNA originated from Jane Doe 3, [defendant], and an unknown individual as opposed to Jane Doe 3 and two random individuals."

Burley also searched a Y-STR database of 8,376 males using the Y-STR profile developed from the waistband. The Y-STR profile was observed only once in the database.

Harmor, the defense expert, testified that his lab also analyzed DNA obtained from the waistband of Jane Doe 3's pants and that the autosomal STR analysis performed on a sample showed that the victim was "the major donor" and that defendant could possibly be one of "at least three minor donors" of the DNA sample. By his calculation, "approximately one person in 18,500 could also be a minor contributor to that sample." Offense Against Jane Doe 4 (Count 6)

Jane Doe 4 came to the United States from the Philippines, where she was a nurse, in 1999. At the time of trial in 2016, she was 45 years old and married, with two children in high school.

In November of 2002, Jane Doe 4 was living with her husband and two children, who were then two years old and four years old, in a two-bedroom, second-floor apartment in Fremont. On the morning of November 8, 2002, after her husband had left for work, she heard a large bang on the door. She had just taken a shower and was getting dressed. Her children were playing in the living room. Her son was pulling a chair toward the door to open it.

Jane Doe 4, who was wearing a bra, a blue T-shirt, and underwear, threw a towel around her waist and went into the living room. Without opening the door, she asked, "Who is it?" A person indicated that he was the plumber and wanted to see the pipes. She tried to look through the peephole. She opened the door. The man explained that he wanted to check the bathroom for a leak because it was flooded downstairs. It was raining that day, and she could see that the patio was "really flooded." She let him in, and they went into the bathroom.

The man picked up a bucket from the top of the toilet with his wrists or forearms, and then lifted the lid to the toilet with his wrist, which seemed odd. The man looked around the apartment, going into the master bedroom and the living area, where he opened the sliding door to the patio and looked out. He looked at pictures of her children that were hanging on the wall. He asked where she was from, and she told him the Philippines.

The man walked over to Jane Doe 4 and tried to grab her towel, asking her what she was wearing underneath or whether she had any underwear on. Jane Doe 4 blocked his hand. The man moved his hand back and forth, simulating masturbation, and said something about having a "quickie." She ran into the bedroom, closed the door, opened the window, and shouted for help.

Jane Doe 4's son called out something like, "He's gone." She looked out the front door, which was open, and then out the kitchen window. She saw him walking and then running down the stairs, and she went out the door to see where he was going. She was scared and went back into her apartment. She ultimately called 911.

At trial, Jane Doe 4 identified defendant as the man who entered her apartment on November 8, 2002. She was a "hundred percent sure" that defendant was that man.

Officer Michael Chinn was the first responding officer on the scene, arriving at approximately 11:11 a.m. His report indicated that Jane Doe 4 had said that the man momentarily grabbed her wrists when she was trying to prevent him from grabbing her towel.

III.

Discussion

A. Faretta Motion

Defendant asserts that the trial court erred when it granted his Faretta motion in March of 2015. He argues that his request for self-representation did not constitute a valid waiver of his right to counsel because his request was equivocal and untimely.

1. Background

On March 11, 2015, during a closed hearing, the court stated that it had been informed that defendant was bringing a Marsden motion and that if the motion were denied, defendant would bring a Faretta motion. Defendant's grievance was not with his current counsel, but with his former counsel from the public defender's office, who he believed had violated his speedy trial rights. Defendant's complaint with his former counsel was that she had not timely brought his case to trial. Defendant told the court that he planned "to file a habeas corpus against the public defender's office" and that he believed that this action would create "a conflict of interest" between his currently appointed counsel and him. Defendant did not "see how [his present counsel could] defend [him] when [he was] attacking his company." Defendant reiterated that he was not complaining about his present counsel. On this basis, the trial court denied the Marsden motion.

The trial court told defendant that it had confidence in his currently appointed counsel, having "worked with him for many years." The court stated that defense counsel "always [had] been a very diligent, responsive, conscientious person who works well with his clients." Defense counsel informed the court that defendant had said that he wanted a speedy trial and that when defendant withdrew his time waiver, defense counsel had explained to defendant that he "doubt[ed] [that he could] get the case ready in 60 days." Defense counsel explained that the case involved multiple counts and that he needed to work through extensive evidence, which included police reports, witness statements, DNA evidence, and independent lab test results obtained by defendant during an earlier period when he was representing himself. Defense counsel indicated that defendant had declined to sign a release to permit the independent lab to release defendant's full file to defense counsel and to speak with defense counsel. In addition to needing to review that independent lab's DNA test results, defense counsel also needed to obtain authorization to be compensated for consulting with the independent lab so that he would be prepared to attack the crime lab's work on cross-examination at trial.

Defense counsel's plan was to bring an in limine motion to sever the weaker counts from the stronger count so that they would be tried separately. He indicated that if he could "neuter the DNA evidence," the issue at trial would be "straight I.D."

Defense counsel disclosed that defendant wanted him to bring a "habeas corpus motion," apparently for the purpose of claiming a denial of speedy trial. But after discussing the matter with defendant's prior counsel, defense counsel concluded that such a motion was not viable. Defendant apparently had appeared with his former counsel at a number of hearings, and he had never asserted his right to have a speedy trial. While his present defense counsel was representing him, defendant withdrew his time waiver, even though defendant understood that his counsel could not get ready for trial that fast. Defendant also wanted a "Mayberry defense" as to consent to be raised at trial, but defense counsel believed that it was not a viable defense. (See People v. Mayberry (1975) 15 Cal.3d 143, 155; see also People v. Williams (1992) 4 Cal.4th 354, 361-362.)

Defense counsel indicated that he was prepared to keep working on the case. Defense counsel said, however, that defendant had been visibly uncomfortable with the fact that defense counsel was the decisionmaker on most matters because defendant wanted "very much to have a far greater influence on how the trial [would be] run than the way [in which counsel had] presented it to him."

The trial court told defendant that defense counsel was focused on assisting his clients, that defense counsel was "not off base" and had thought through his strategies, and that defense counsel had correctly conveyed that he "gets to call all the shots in a case" except a specified few. The court told defendant that he should not hold his former counsel's conduct against his present counsel. It warned defendant that he should carefully consider his decision because the next judge might hold him to the decision for the remainder of the case.

The trial court laid out four options for defendant: (1) continuing to be represented by his current counsel and going to trial within 60 days; (2) continuing to be represented by his current counsel and waiving time; (3) representing himself and going to trial within 60 days; and (4) representing himself and waiving time.

Defendant indicated that he had decided to file a petition for a writ of habeas corpus, which would result in "a conflict [with his counsel] down the line." The court explained that the filing of such a petition would not automatically create a conflict, but if there were a conflict, defendant would get an alternate defender. Defendant responded, "That's what I want. I don't want the public defender helping me anymore. I think they are helping the prosecution." Defendant confirmed that he wanted to file the writ petition and see where it took him.

Defense counsel made clear that even if defendant chose option one, counsel would not be ready to try the case by the 60th or 70th day and that he would ask the court to continue the case over defendant's objection. The trial court pointed out that the court might not grant a motion for a continuance. Defense counsel indicated that if he continued to represent defendant, he would withdraw any unmeritorious writ or motion filed by defendant.

Defendant indicated that he wanted to represent himself. Defense counsel informed the court that the case was set for April 13 on the master trial calendar. The court determined that the Faretta motion was not untimely. Defendant represented that he was ready to go to trial by himself.

The trial court discussed the complexity of the case, especially given the DNA evidence. The court asked defense counsel to address the likelihood of defendant being convicted and receiving a substantial prison term. Defense counsel indicated that one of the victims had "a strong case" against defendant and the likelihood of conviction was "very high" and that defendant was probably facing a "substantial prison term." The court went over the dangers and disadvantages of self-representation. It warned defendant that it was "not wise" to represent himself and that he might "conduct a defense to [his] own detriment." After defense counsel indicated that there were four alleged victims, the court noted that it was "probably a life case."

The court told defendant that he would be required to follow the same rules and law followed by attorneys and that he would be "opposed by an experienced and professional attorney who [would] hold a distinct advantage over [him] in terms of skill, training, and ability." The court cautioned that defendant would "receive no help or special treatment from the court or the prosecutor," and he would "not receive any special library privileges, investigators, or any extra preparation time." It further stated that "the judge is not there to help you[,] to give you advice, to tell you how to represent yourself, [or] to be your attorney." The court indicated that defendant would have to "figure it out" and "handle [his] affairs."

The court stated for the record that it had nothing before it to indicate defendant had any issue of mental capacity. Defense counsel reported that his interactions with defendant indicated that defendant was "very bright." Defendant had explained to defense counsel how he envisioned trying the case. Defendant had told his defense counsel that while previously representing himself, he had an investigator pursue an investigation and had the evidence retested by an independent laboratory.

The court asked defendant to fill out a Faretta form, asking him to read it carefully. After a recess, the court went over the form with defendant. The court asked whether he still wanted to represent himself. Defendant replied, "Yes, I have no choice. I have to." When once again asked, defendant confirmed that he was asking to represent himself and to have the public defender's office relieved as his attorney of record. The court granted defendant's motion to represent himself.

A seven-page "Petition to Proceed in Propria Persona" signed and initialed by defendant was filed on March 11, 2015. It indicated that he had attended high school through twelfth grade but did not graduate. Two pages of the form addressed the disadvantages of self-representation. Defendant initialed among other statements the statement, "I understand that it is the advice and recommendation of this court that I do not represent myself, and accept counsel appointed by the Court." The court signed and dated the written finding that defendant had knowingly and intelligently given up his right to counsel to represent himself.

The record of the hearing on March 11, 2015 discloses that after the trial court denied his Marsden motion, defendant consistently asked to represent himself.³ Contrary to his assertion on appeal, once faced with the choice of either continuing to be represented by his present counsel with whom he had no complaint or representing himself, defendant did not equivocate or vacillate in his request for self-representation.

3 On appeal, defendant does not assert that court erred or abused its discretion in denying that Marsden motion. Defendant does not claim that at the time of the March 11, 2015 hearing, he had a present conflict of interest with his current counsel.

2. Analysis

In Faretta, the United States Supreme Court stated that "weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel." (Faretta, supra, 422 U.S. at p. 835.) "The record affirmatively show[ed] that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will." (Ibid.) "The trial judge had warned Faretta that he thought it was a mistake not to accept the assistance of counsel, and that Faretta would be required to follow all the 'ground rules' of trial procedure." (Id. at pp. 835-836, fn. omitted.) The United States Supreme Court held that "[i]n forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense." (Id. at p. 836.) The court made clear that defendant's "technical legal knowledge" was "not relevant to an assessment of his knowing exercise of the right to defend himself." (Ibid.)

"A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. 806; People v. Marshall (1997) 15 Cal.4th 1, 20.) 'A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers.' (People v. Valdez (2004) 32 Cal.4th 73, 97-98.) Erroneous denial of a Faretta motion is reversible per se. (People v. Dent (2003) 30 Cal.4th 213, 218.)" (People v. Williams (2013) 58 Cal.4th 197, 252-253.)

"It is settled that the Faretta right may be waived by failure to make a timely request to act as one's own counsel [citation], or by abandonment and acquiescence in representation by counsel [citations]. The court may deny a request for self-representation that is equivocal, made in passing anger or frustration, or intended to delay or disrupt the proceedings. [Citation.] A defendant may be mentally incompetent to waive counsel. (Godinez v. Moran (1993) 509 U.S. 389, 400-401.)" (People v. Butler (2009) 47 Cal.4th 814, 825.) In addition, the United States Supreme Court has held that the United States Constitution "permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Indiana v. Edwards (2008) 554 U.S. 164, 178; see Dusky v. United States (1960) 362 U.S. 402 (per curiam); see also Drope v. Missouri (1975) 420 U.S. 162, 171-172.)

"[The California Supreme Court has] held that 'timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made. An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is "to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice." ' [Citation.] In exercising its discretion to grant or deny an untimely self-representation request, [the California Supreme Court has] held the trial court should consider, among other factors, 'the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.' [Citation.] When a court denies an untimely request, its ruling is reviewed for abuse of discretion. [Citation.]" (People v. Buenrostro (2018) 6 Cal.5th 367, 426.)

The Faretta motion now at issue was brought approximately a month before the case was set on the master trial calendar. The California Supreme Court has explained that "the high court's statement in Faretta that the defendant's motion was 'weeks before trial' implies a recognition that a motion that interferes with the orderly process of a trial may be denied. [Citations.]" (People v. Lynch (2010) 50 Cal.4th 693, 725, abrogated on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 636-637.)

Even assuming arguendo that defendant's Faretta motion in March of 2015 was untimely and that his appellate claim is cognizable even though he was the one insisting on representing himself, defendant has not demonstrated that the granting of his motion constituted an abuse of discretion because the motion was untimely. Defendant had represented himself for an extended period earlier in the proceedings, his trial was at least a month away, defense counsel disclosed that he would not be prepared for trial within 60 days and would be asking for a continuance, and defendant indicated that he was ready to go to court by himself. The abuse of discretion standard of review is deferential. (People v. Williams (1998) 17 Cal.4th 148, 162.) "[I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Ibid.) Defendant fails to demonstrate that the court erred or abused its discretion in granting him permission to represent himself in March of 2015. B. Denial of Requests for Advisory Counsel

1. Background

On May 20, 2015, the trial court considered defendant's motion to continue the trial date and his request for court-appointed advisory counsel. The court granted the motion for a continuance but denied the motion for appointment of advisory counsel, commenting that defendant had previously represented himself in this case and that defendant had told the court that he would be ready for trial.

During an in-camera hearing on February 10, 2016, the trial court addressed another request for advisory counsel, who defendant asserted could help him understand unfamiliar legal issues and prepare defense strategies, advise him "on motions and proper language [to use] in the courtroom," and prevent delay. The court pointed out that defendant had been represented twice by counsel in this case, that this was the second time defendant was representing himself, and that defendant had received a Faretta advisement. The court told defendant, "[T]he reasons that you have given as to why you would need advisory counsel are reasons that really needed to be taken into consideration when you made your request to represent yourself and to proceed pro per."

At that hearing, the trial court noted that defendant had filed a number of motions and that he had been "certainly more than prepared to present [his] positions." The court observed that defendant had "used the proper format" and "the proper language" and relied on appropriate case law. The court believed that defendant was competent to represent himself. The court again denied defendant's request for appointment of advisory counsel.

2. Analysis

"[T]he right to the assistance of counsel, guaranteed by the state and federal Constitutions, has never been held to include a right to the appointment of advisory counsel to assist a defendant who voluntarily and knowingly elects self-representation. [Citation.]" (People v. Crandell (1988) 46 Cal.3d 833, 864 (in bank) (Crandell), abrogated on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) " '[N]one of the "hybrid" forms of representation, whether labeled "cocounsel," "advisory counsel," or "standby counsel," is in any sense constitutionally guaranteed.' [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 723 (Blair), abrogated on another ground by People v. Black (2014) 58 Cal.4th 912, 919-920.)

"Criminal defendants have the constitutional right to have an attorney represent them, and the right under the federal Constitution to represent themselves, but these rights are mutually exclusive. [Citations.]" (People v. Moore (2011) 51 Cal.4th 1104, 1119-1120.) However, "trial courts retain the discretion to permit the sharing of responsibilities between a defendant and a defense attorney when the interests of justice support such an arrangement. [Citation.]" (Id. at p. 1120.) A court's denial of a request for "hybrid representation" is reviewed for abuse of discretion. (Ibid.) " '[A]s with other matters requiring the exercise of discretion, "as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be . . . set aside . . . . [Citations.]" ' [Citation.]" (Ibid.)

The limited role of "advisory counsel" is to "assist the self-represented defendant if and when the defendant requests help. [Citations.]" (Blair, supra, 36 Cal.4th at p. 725.) "When a defendant represents himself, he retains primary control over the conduct of the case, and the role of advisory counsel is consequently limited. [Citations.]" (People v. Clark (1992) 3 Cal.4th 41, 112 (in bank), abrogated on another ground as recognized in People v. Edwards (2013) 57 Cal.4th 658, 704-705.)

"The factors which a court may consider in exercising its discretion on a motion for advisory counsel include the defendant's demonstrated legal abilities and the reasons for seeking appointment of advisory counsel." (Crandell, supra, 46 Cal.3d at p. 863.) Certain circumstances may support an inference of manipulative purpose, which would justify the denial of a request for advisory counsel. (See ibid.)

In this noncapital case, defendant went back and forth between representation by appointed counsel from the public defender's office and self-representation. While defendant was representing himself for the first time, he apparently had an investigator conduct an investigation at his request and had an independent lab retest the evidence. Defendant's counsel described him as "very bright." When defendant sought to represent himself for the second time, the court was concerned that defendant had a "proclivity" to " 'work the system' . . . to gain a personal benefit" through dispensing with counsel and then requesting counsel. When granting defendant's March 2015 Faretta motion, the court warned defendant of the perils of self-representation and the possibility that a court might refuse a subsequent request for appointment of counsel if he later changed his mind about proceeding without counsel.

Defendant fails to establish that the trial court abused its discretion in denying his requests for appointment of advisory counsel. Moreover, even if we were to assume arguendo that the trial court abused its discretion, defendant has not shown that it is reasonably probable that he would have obtained a more favorable result if advisory counsel had been appointed, especially in light of the strong evidence of the charged offenses, the DNA evidence, and the limited role of advisory counsel. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); cf. Crandell, supra, 46 Cal.3d at pp. 864-865 [Watson harmless error standard applied where court failed to exercise its discretion but denial of request for advisory counsel would not have been an abuse of discretion]; but cf. People v. Bigelow (1984) 37 Cal.3d 731, 742-745 [in capital case, the trial court's failure to exercise its discretion based upon a mistaken belief that lacked authority to appoint advisory counsel constituted an abuse of discretion under the particular circumstances and was reversible per se].) C. Admission of Evidence of Uncharged 1994 Incident

Defendant maintains that the trial court committed reversible error when it allowed the prosecutor to present evidence of his 1994 conduct that was not charged in this case.

1. Background

In an in limine motion the People sought an order allowing the admission of evidence of a July 29, 1994 incident in Walnut Creek under Evidence Code section 1101, subdivision (b).⁴ According to the motion, "defendant was observed by a witness entering an apartment thr[ough] an open door, moments after the resident [had] walked her dog a short distance away from the apartment." The witness had seen "defendant trying to open various apartment doors in the complex." When the police responded, defendant was located in a stairwell in the complex and claimed that he was there because his car had overheated. A search of defendant's car produced a number of items, including a stun gun and a handgun. The motion indicated that as a result of the incident, defendant was convicted of a violation of former section 12021 based on a negotiated plea. (See Stats. 1993, ch. 612, § 2 [former section 12021, subdivision (a)(1), made it a felony for a convicted felon to possess a firearm].) The People argued that since "[a] stun gun is clearly an unusual and rare weapon to possess" and "a stun gun was used on Jane Doe 1 to incapacitate her" before she was raped, evidence that defendant had a stun gun in his car in 1994 was relevant to establish "motive, intent, opportunity, common scheme or plan[,] and identity in the rape of Jane Doe 1."

4 "Section 1101 states the general rule that evidence of character to prove conduct is inadmissible in a criminal case." (Cal. Law Revision Com. com., 29B pt. 3B West's Ann. Evid. Code (2009 ed.) foll. § 1101, p. 222.) Evidence Code section 1101, subdivision (b), states: "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."

At the hearing on the motion, the prosecutor reiterated that a stun gun had been recovered from defendant's vehicle in connection with the 1994 incident and that a stun gun had been used to sexually assault Jane Doe 1. The court asked defendant, who was representing himself, to state whether he had any objection and if so, its legal basis. Defendant responded, "It has nothing to do with anything. I mean it's too old." He said, "Basically it has nothing to do with this case." Defendant did not dispute that a stun gun was an unusual weapon.

The court considered the admissibility of the evidence of the 1994 incident under Evidence Code sections 1101, subdivision (b), and 352. The court ruled that the witness's observations of defendant checking doors of apartments and going into an apartment were admissible under Evidence Code section 1101, subdivision (b), to show motive, preparation, and plan and that the evidence that a stun gun was found in defendant's car was admissible under Evidence Code section 1101, subdivision (b), to show identity and preparation since a stun gun is a "particularly unique" weapon.

At trial, the People presented evidence of the July 29, 1994 incident. The evidence showed that a witness, who lived in a Walnut Creek condominium complex, saw a white male, who was approximately six feet tall, check the doors of two units and walk back and forth from a vehicle parked on the street. The witness saw a woman leave her unit to walk a dog and go down a path. From his vantage point in his condominium, the witness saw the woman leave the door open and the man go into the woman's unit about 30 seconds after she left. The witness called 911. While on the 911 call, the witness saw the man exit the woman's unit as she was walking back to it. The police responded to the complex. The witness identified the suspect for police and gave a statement.

Damien Sandoval, a former officer with the City of Walnut Creek, testified that he responded to a dispatch describing suspicious behavior of a white male testing doorknobs to see whether the doors to condominium units were locked. The officer made contact with the man, who was sitting in a stairwell in front of the complex. Sandoval pat-searched the man for weapons. At trial, Sandoval identified defendant as the person with whom he made contact on July 29, 1994.

After another officer arrived, Sandoval verified that the vehicle associated with defendant was registered to him. When defendant was asked what he was doing in the condominium complex, defendant said that he had had car trouble, his car had been overheating, and he had pulled off the freeway while traveling from Martinez to San Francisco. Sandoval found this explanation to be strange because defendant could have gone to a gas station closer to an off-ramp. Sandoval did not see any sign of a problem with defendant's car.

Sandoval spoke with the individual who had called 911. He told Sandoval that he saw defendant get down on hands and knees and crawl into a woman's unit and that he then saw defendant leave the apartment while the woman was coming back to the apartment with her dog. Sandoval learned from the woman that she was unaware that defendant had been in her apartment and that she did not know defendant.

Defendant was arrested pursuant to an outstanding arrest warrant, and the vehicle was impounded. Sandoval conducted an inventory search of the vehicle. During that vehicle search, a stun gun was found on the floorboard. Sandoval explained that a stun gun "issues an electric shock," which immobilizes the person on which it is used for "some seconds."

The trial court gave a modified standard instruction permitting the jury to consider evidence of the 1994 incident on the issues of identify and common plan. (See CALCRIM No. 375.) As to evaluating the evidence on the issue of common plan, the court directed the jurors to "consider the similarity or lack of similarity between the uncharged offenses and the charged offenses." In its instruction, the court expressly prohibited the jurors from considering the evidence for any other purpose. The court instructed, "Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crimes." The court also made clear that if the jurors concluded that defendant had engaged in that 1994 behavior, their conclusion was "only one factor to consider along with all the other evidence," that the evidence was not sufficient by itself to prove any count or allegation, and that the People were required to prove each charge and allegation beyond a reasonable doubt.

2. Defendant's Contentions

Defendant argues that the requisite "similarities between the charged incidents and the 1994 incident[, which are] necessary for the evidence to be admissible to prove . . . identity, or a common plan, are missing." He points out that "in the 1994 incident, he did not pose as someone with a reason to contact the resident, let alone enter the residence" and that unlike the charged offenses, in 1994 he "secretly crawl[ed] into a unit whose occupant had gone outside." He also claims that all the victims in this case were Asian while the evidence did not show "the race [or] ethnicity of the woman whose residence he [had] entered in 1994." He also claims that there was no evidence that "a stun gun is a particularly unusual or hard to get item." Defendant asserts that the remoteness in time of the 1994 incident "militated against allowing the jury to hear evidence about [it]."

3. Forfeiture Rule does not Apply

The People argue that defendant forfeited his claims for appellate review because he did not object to the evidence of the 1994 incident on the ground that it was "not admissible under Evidence Code section 1101, subdivision (b), or [it was] substantially more prejudicial than probative under Evidence Code section 352."

Evidence Code section 1101, subdivision (b), does not prohibit the admission of evidence. Rather, it clarifies that Evidence Code section 1101, subdivision (a), does not bar "admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. omitted (in bank) (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505-506.)

Defendant, who was representing himself, did not specifically object in the trial court on the specific ground that the proffered evidence was irrelevant to prove identity or a common plan or on Evidence Code section 352 grounds.⁵ He did state, however, that the evidence was "too old" and had "nothing to do with this case." We agree with the People that the latter objection may be understood as a relevance objection. (See Evid. Code, §§ 210, 350, 351.) The issue of remoteness in time relates to the question whether the prejudicial effect of evidence of other misconduct outweighs its probative value because such remoteness may diminish the evidence's probative value. (See Evid. Code, § 352; see Ewoldt, supra, 7 Cal.4th at pp. 398, fn. 3, 405.) As indicated, the trial court considered the admissibility of the evidence of the 1994 incident under Evidence Code sections 1101, subdivision (b), and 352.

5 " ' "Evidence is prejudicial within the meaning of Evidence Code section 352 if it ' "uniquely tends to evoke an emotional bias against a party as an individual" ' [citation] or if it would cause the jury to ' " 'prejudg[e]' a person or cause on the basis of extraneous factors" ' [citation]." [Citation.]' [Citation.] Generally, due to the potential undue prejudice inherent in uncharged offenses, evidence of their occurrence is admissible only if it has substantial probative value. [Citation.]" (People v. McCurdy (2014) 59 Cal.4th 1063, 1098.)

We conclude that the forfeiture rule does not apply here.

4. Admission of Evidence of 1994 Conduct

" 'We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.' [Citation.]" (People v. Davis (2009) 46 Cal.4th 539, 602.) Except where evidence of uncharged acts is made admissible to prove propensity by statute, such evidence is not admissible to prove conduct on a specific occasion. (Evid. Code, § 1101, subd. (a) ⁶.) In this case, there has been no suggestion that the evidence of the 1994 incident was admissible to prove propensity.

6 Evidence Code section 1101, subdivision (a), provides: "Except as provided in this section and in [Evidence Code s]ections 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."

In deciding whether evidence of uncharged misconduct is admissible to prove identity, "the greatest degree of similarity is required." (Ewoldt, supra, 7 Cal.4th at p. 403.) "For identity to be established [based upon similar uncharged conduct], the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ibid.)

"Evidence of identity is admissible where it is conceded or assumed that the charged offense was committed by someone, in order to prove that the defendant was the perpetrator. For example, in a prosecution for shoplifting in which it was conceded or assumed that a theft was committed by an unidentified person, evidence that the defendant had committed uncharged acts of shoplifting in the same unusual and distinctive manner as the charged offense might be admitted to establish that the defendant was the perpetrator of the charged offense. (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 410, p. 477.)" (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.)

For evidence to be admissible "[t]o establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence 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.]" (Ewoldt, supra, 7 Cal.4th at p. 403.)

" 'Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, "[i]n proving design, the act is still undetermined . . . .' (2 Wigmore, supra, (Chadbourn rev. ed. 1979) § 300, p. 238.)" (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) "Evidence of a common design or plan, therefore, is not used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense." (Id. at p. 394, fn. omitted.) "For example, in a prosecution for shoplifting in which it was conceded or assumed that the defendant was present at the scene of the alleged theft, evidence that the defendant had committed uncharged acts of shoplifting in a markedly similar manner to the charged offense might be admitted to demonstrate that he or she took the merchandise in the manner alleged by the prosecution." (Id. at p. 394, fn. 2.)

We agree with defendant that the trial court abused its discretion in determining that the evidence of the entire 1994 incident was relevant to prove identity because defendant's 1994 misconduct and the charged offenses did not share unusual and distinctive features. (See Ewoldt, supra, 7 Cal.4th at p. 403.) Further, while defendant's past possession of a stun gun might constitute evidence of his propensity to possess a stun gun, section 1101, subdivision (a) prohibited the admission of that evidence for that purpose.⁷ (See ante, fn. 6.)

7 But the evidence that a stun gun was recovered from the floorboard of defendant's car in 1994 was arguably relevant since it could be inferred from that evidence that defendant was familiar with stun guns. (See Evid. Code, § 210.) Moreover, this 1994 evidence was not remote in time since the charged rape occurred in 2002 and defendant had served a prison term for his violation of former section 12021 in the interim.

We further agree that the trial court abused its discretion in concluding that the 1994 incident shared sufficient common features with any crime charged in this case to be admissible to establish the existence of a common design or plan to gain entrance to women's apartments or condominiums and then commit forcible sexual offenses against them in their homes. In the 1994 incident, defendant surreptitiously entered a woman's unit while she was gone and left before she returned. There was no evidence that defendant's 1994 conduct culminated, or was intended to culminate, in a sexual offense.

Defendant maintains that the erroneous admission of the evidence of the 1994 incident was prejudicial. He suggests that "evidence of the 1994 incident," "when coupled with the prosecutor's propensity argument," might have led the jury to speculate that he had committed other uncharged sexual assaults and that in the absence of evidence that he already had been punished for that 1994 conduct, the jury might have convicted him in this case in part to punish him for that 1994 conduct. He claims that the admission of that evidence violated his "right to a fundamentally fair trial as guaranteed by the due process clause" and was not harmless beyond a reasonable doubt under the Chapman standard (see Chapman v. California (1967) 386 U.S. 18, 24) or under this state's Watson test (see Watson, supra, 46 Cal.2d at p. 836).

Even assuming arguendo that admission of the evidence of the full 1994 incident to prove identity and a common plan constituted an abuse of discretion, it does not constitute reversible error. (See ante, fn. 7.) The evidence of the 1994 incident was not central to the prosecutor's arguments. The dissimilarities between the 1994 incident and the charged offenses were evident to the jury. The evidence of that incident was not unduly inflammatory and certainly far less inflammatory than the evidence of the charged offenses.

Except Jane Doe 2, the victims of the charged offenses identified defendant as the perpetrator at trial. DNA evidence connected defendant to all charged offenses, except the crime in which defendant fled before sexually assaulting the victim (count 6). There were marked similarities among the charged offenses. Further, if the jurors found that the People had proved beyond a reasonable doubt that the defendant committed a charged crime, the evidence of that offense was relevant to show defendant's propensity to commit sexual offenses. (See People v. Villatoro (2012) 54 Cal.4th 1152, 1164 (Villatoro); Evid. Code, § 1108; see also CALCRIM No. 1191B.) The prosecutor properly made such an argument. The jury impliedly found the victims of the charged offenses to be credible.

"[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913 ['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.']; see also Duncan v. Henry [(1995) 513 U.S. 364,] 366.)" (People v. Partida (2005) 37 Cal.4th 428, 439 (Partida).) The admission of the evidence of the 1994 incident did not render the trial fundamentally unfair in violation of due process. The jury was instructed that it could not conclude from the evidence of defendant's 1994 behavior that he had a bad character or was disposed to commit crimes. The jury was clearly instructed that such evidence was insufficient by itself to prove that he was guilty of any of the charged offenses or allegations and that the People still had to prove each charge and allegation beyond a reasonable doubt.

"Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (Partida, supra, 37 Cal.4th at p. 439.) Under the circumstances, it is not reasonably probable that the jury would have reached a result more favorable to defendant if evidence of defendant's 1994 misconduct had not been admitted. (See Watson, supra, 46 Cal.2d at p. 836.) D. Penalty Assessments Calculated Based on $70 Fine

The trial court imposed a $70 fine (§ 264, subd. (b))⁸ in connection with the forcible rape of Jane Doe 1 (§ 261, subd. (a)(2)) and total penalty assessments of $203 based on that fine. Typically, under current law there are at least six separate penalty assessments plus a state criminal surcharge levied upon the fines and penalties imposed on a criminal conviction: a state penalty assessment (§ 1464)⁹; a county penalty assessment (Gov. Code, § 76000, subds. (a), (e))¹⁰; a state court construction penalty (Gov. Code, 70372)¹¹; an emergency medical services [EMS] fund penalty (Gov. Code, § 76000.5)¹²; a DNA fund penalty (Gov. Code, § 76104.6); an additional DNA fund penalty (Gov. Code, § 76104.7); and the 20 percent state criminal surcharge (§ 1465.7).¹³ (See People v. Hamed (2013) 221 Cal.App.4th 928, 935.) The record in this case does not disclose the court's calculations of the total penalty assessments or the amount of and statutory basis for the individual penalty assessments or surcharge included in the total.

8 Section 264, subdivision (b), provided in part at the time of the offense (Stats. 1999, ch. 853, § 11), and still provides in part: "In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates [s]ection 261 or 262 with the proceeds of this fine to be used in accordance with [s]ection 1463.23." Although section 1463.23 was repealed in 2017, effective January 1, 2018 (Stats. 2017, ch. 537, § 18; see Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a)), section 264, subdivision (b), continues to authorize the imposition of this fine.

9 Section 1464, subdivision (a)(1), provides in pertinent part: "[T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."

10 Government Code section 76000, subdivision (a)(1), provides in pertinent part: "Except as otherwise provided elsewhere in this section, in each county there shall be levied an additional penalty in the amount of seven dollars ($7) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ." Subdivision (e) of that section states in pertinent part: "The seven-dollar ($7) additional penalty authorized by subdivision (a) shall be reduced in each county by the additional penalty amount assessed by the county for the local courthouse construction fund established by [s]ection 76100 as of January 1, 1998, when the money in that fund is transferred to the state under [s]ection 70402. The amount each county shall charge as an additional penalty under this section shall be as follows: [¶] . . . [¶] [In] Santa Clara [County, the penalty shall be] $5.50 . . . ." (Italics added.)

11 Government Code section 70372, subdivision (a), now provides in part: "Except as otherwise provided in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."

12 Government Code section 76000.5, subdivision (a)(1), now provides: "Except as otherwise provided in this section, for purposes of supporting emergency medical services pursuant to Chapter 2.5 (commencing with [s]ection 1797.98a) of Division 2.5 of the Health and Safety Code, in addition to the penalties set forth in Section 76000, the county board of supervisors may elect to levy an additional penalty in the amount of two dollars ($2) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . . This penalty shall be collected together with and in the same manner as the amounts established by [s]ection 1464 of the Penal Code."

13 Section 1465.7, subdivision (a), states: "A state surcharge of 20 percent shall be levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464."

Defendant asserts that the total penalty assessments must be reduced to $133 because imposition of some of the individual penalty assessments violated the prohibition against ex post facto law. He argues that the laws authorizing them became effective after he committed the 2002 rape of Jane Doe 1 and those assessments constituted punishment. He asserts that the court lawfully imposed only the three penalty assessments that were authorized when he committed the rape—namely, the state penalty assessment (§ 1464, subd. (a)(1)), the county penalty assessment (Gov. Code, § 76000, subd. (a)(1)),¹⁴ and the 20 percent state surcharge (§ 1465.7). The People concede as much.

14 The parties have not discussed whether Government Code section 76000, subdivision (e), applies here. When defendant committed forcible rape against Jane Doe 1 in 2002, there was no subdivision (e) that reduced the amount of the county penalty in many counties. Subdivision (e) was added by statute passed in 2002 and effective January 1, 2003. (Stats. 2002, ch. 1082, § 5.) The parties have not raised the issue whether the Estrada's inference of retroactivity (see Estrada, supra, 63 Cal.2d 740) applies to the amount of the county penalty applicable in this case. The issue may be addressed in the trial court upon remand.

The United States Constitution prohibits passage of any federal or state ex post facto law. (U.S. Const., art. I, §§ 9, c1.3, 10, cl. 1.) California's Constitution also prohibits ex post facto laws. (Cal. Const., art. I, § 9.) One class of ex post facto laws "includes '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' [Citation.]" (Peugh v. United States (2013) 569 U.S. 530, 532-533; see id. at pp. 538-539.) "California's ex post facto law is analyzed in the same manner as the federal prohibition. [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 755 (Alford).)

In deciding whether a law increases punishment, courts "consider 'whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent.' (People v. Castellanos (1999) 21 Cal.4th 785, 795.)" (Alford, supra, 42 Cal.4th at p. 755.) "If the intention of the legislature was to impose punishment, that ends the inquiry." (Smith v. Doe (2003) 538 U.S. 84, 92.)

Government Code section 70372 (state court construction penalty) was added in 2002 (Stats. 2002, ch. 1082, § 4) and went into effect January 1, 2003. (See Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) In People v. High (2004) 119 Cal.App.4th 1192 (High), the Court of Appeal, Third District, stated, "Although the Legislature enacted Government Code section 70372 as a method of increasing the funds available to remodel, renovate and construct new state court facilities, the structure, operative principle, and descriptive language chosen reflect[ed] a penal purpose as well." (Id. at p. 1198.) The appellate court reasoned: "[T]he state court facilities construction penalty is calculated on 'every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses' at [a specified] rate . . . . The penalty imposed tracks the seriousness of the underlying offense and its base penalty. The prospect of its imposition therefore has a similar deterrent effect to that of punitive statutes generally. It thereby ' "promote[s] the traditional aims of punishment—retribution and deterrence." ' [Citations.]" (Id. at pp. 1198-1199.) The court concluded that the Legislature intended the penalty mandated by Government Code section 70372 to be punitive (High, supra, at pp. 1198-1199) and therefore the state court construction penalties imposed on two counts had to be stricken because the law authorizing those penalties was ex post facto as to those crimes. (Id. at pp. 1195, 1199, 1201.)

Government Code section 76104.6 (DNA fund penalty) was added in 2004 when voters approved Proposition 69, and it went into effect on November 3, 2004. (Voter Information Guide, Gen. Elec. (Nov. 2, 2004) text of Prop. 69, SEC. IV, § 1, pp. 144-145; see People v. Batman (2008) 159 Cal.App.4th 587, 590.) In Batman, the Court of Appeal, Third District, observed that "the bulk of the DNA penalty assessment funds will be used to process DNA samples and specimens collected in the future for inclusion in databanks operated by and for the benefit of law enforcement." (Id. at p. 591.) The appellate court reasoned that the DNA penalty assessment was punitive because it was "explicitly designated a penalty" (ibid.), it was "calculated in direct proportion to other fines, penalties, and forfeitures imposed" (ibid.), it was "collected using the same provision for collecting the state penalty assessment [(§ 1464, subd. (a))]" (ibid.), and the penalties would "be used primarily for future law enforcement purposes" (ibid.). The court concluded that a DNA fund penalty was punitive and constituted an "ex post facto law with respect to offenses committed prior to its effective date." (Ibid.)

Government Code section 76104.7 (additional DNA fund penalty) was added in 2006 (Stats. 2006, ch. 69, § 18) and went into effect on July 12, 2006. (Stats. 2006, ch. 69, § 41; Cal. Const., art. IV, § 8, subds. (c)(3), (d).) Government Code section 76000.5 was added in 2006 (Stats. 2006, ch. 841, § 1) and went into effect on January 1, 2007. (See Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) In People v. Voit (2011) 200 Cal.App.4th 1353, 1374, the Attorney General conceded based on "the logic" of High and Batman that the penalties mandated by Government Code sections 76000.5, 76104.6, and 76104.7 could not be imposed because they went into effect after the defendant's crimes were committed.

The legislative history of the bill enacting Government Code section 76104.7 indicated that it would make "general government related changes necessary to implement the Budget Act of 2006." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1806 (2005-2006 Reg. Sess.) as amended June 27, 2006, p. 1.) A legislative analysis of the bill explained that the proposed law would "[l]ev[y] an additional one dollar for every ten dollars in fines, penalties, or forfeitures collected by the courts for criminal offenses, and [would] require[] all of those funds to be deposited in the State's DNA Identification Fund, which supports the current program level for the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69)." (Id. at pp. 4-5.) The analysis further stated that the additional penalty was "estimated to reduce the General Fund impact of the program by $7.3 million in the budget year." (Id. at p. 5) Government Code section 76104.7, subdivision (a) now mandates the levy of "an additional state-only penalty of four dollars ($4) for every ten dollars ($10), or part of ten dollars ($10), in each county upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ."

Like the DNA penalty mandated by Government Code section 76104.6, the additional DNA penalty is expressly termed a "penalty" (Gov. Code, § 76104.7, subd. (a) ["in addition to the penalty levied pursuant to [s]ection 76104.6, there shall be levied an additional state-only penalty . . ."]), and it is calculated based "upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses . . . ." (Gov. Code, § 76104.7, subd. (a).) As does Government Code section 76104.6, Government Code section 76104.7 requires the additional DNA penalty to "be collected together with, and in the same manner as, the amounts established by [s]ection 1464 of the Penal Code." (Gov. Code, § 76104.7, subd. (b).) Although the imposition of the additional DNA penalty pursuant to Government Code section 76104.7 was enacted as part of a budget bill and intended to help fund the implementation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act,¹⁵ we conclude that it was punitive for the same reasons identified in Batman.

15 The penalty assessments required by Government Code section 76104.7 ultimately must be "used to fund the operations of the Department of Justice forensic laboratories, including the operation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, and to facilitate compliance with the requirements of subdivision (e) of [s]ection 299.5 of the Penal Code." (Gov. Code, § 76104.7, subd. (b).)

For similar reasons, we conclude that the EMS fund penalty is punitive for purposes of determining whether retroactive application of Government Code section 76000.5 violates the constitutional prohibition against ex post facto laws. (See People v. Soto (2016) 245 Cal.App.4th 1219, 1240 (Soto).) The penalty assessment is expressly denominated a "penalty." (Gov. Code, § 76000.5, subds. (a), (b).) The EMS fund penalty is calculated based "upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses." (Gov. Code, § 76000.5, subd. (a)(1).) The penalty must "be collected together with and in the same manner as the amounts established by [s]ection 1464 of the Penal Code." (Ibid.)

Further, the laws mandating the four challenged penalty assessments apply only in the context of a prosecution; those laws correlate to the seriousness of the underlying crime because they are calculated based on the amount of the fine imposed on a criminal offense; and they do not contain an ability-to-pay provision. (See Soto, supra, 245 Cal.App.4th at p. 1240.) Based on the foregoing case law and analysis, we accept the People's concession that the total penalty assessments calculated based on the $70 fine (§ 264) must be reduced because the statutes authorizing certain penalty assessments (Gov. Code, §§ 70372, 76104.6, 76104.7, 76000.5) constitute ex post facto laws as to the 2002 rape of which defendant was convicted. E. Retroactive Application of Section 667 .5, Subdivision (b), as Amended

Defendant argues that in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (SB 136) and under Estrada's inference of retroactivity (see Estrada, supra, 63 Cal.2d 740), this court should strike the true finding on the prior prison term enhancement allegation under section 667.5, subdivision (b), and strike the one-year enhancement.

The People first argue that this contention is not yet ripe because the amended law is not effective until January 1, 2020. They agree, however, that once it is in effect it will apply retroactively to defendant and that the conviction underlying the prior prison term enhancement (felon in possession of a firearm) was "not a sexually violent offense under Welfare and Institutions Code, section 6600, subdivision (b)." The People assert that if the claim becomes ripe during the pendency of the appeal, which it has, the proper remedy is to remand the matter to superior court for resentencing rather than simply striking the enhancement because the former remedy would allow the trial court to resentence in light of the changed circumstances.

As amended by SB 136, subdivision (b) of section 667.5 now provides in pertinent part: "[W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of [s]ection 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of [s]ection 6600 of the Welfare and Institutions Code, provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of [s]ection 1170 or any felony sentence that is not suspended." (Italics added.) This amended version of section 667.5 went into effect on January 1, 2020. (Stats. 2019, ch. 590, § 1; Cal. Const., art. IV, § 8 subd. (c); Gov. Code, § 9600, subd. (a).) Thus, the one-year enhancement for a prior prison term no longer applies to an offense that is not a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b).

As a general rule, penal statutes operate prospectively. (see § 3; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307).) However, "[w]hen a new statute decreases the prescribed punishment for criminal conduct . . . , whether the change applies to preenactment conduct is a matter of legislative intent. [Citation.]" (People v. Lara (2019) 6 Cal.5th 1128, 1134.) In Estrada, the California Supreme Court held that "when the Legislature enacts a law ameliorating punishment without including an express savings clause or a similar indicator of its intent to apply the law prospectively only, we infer an intent 'that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.' ([Estrada, supra, 63 Cal.2d] at p. 745.)" (Ibid.) "In this category [the Supreme Court] included cases in which the criminal act was committed before the statute's passage, so long as the judgment is not yet final. [Citation.] Thus, under Estrada, ' "[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].' [Citations.]" (Ibid.)

"The key date [for determining whether an ameliorative change in a criminal law applies retroactively] is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies." (Estrada, supra, 63 Cal.2d at p. 744.) "[A] judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]" (People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 (plur. opn. of Werdegar, J.); see People v. Vieira (2005) 35 Cal.4th 264, 306.)

Accordingly, we remand the matter for resentencing.

DISPOSITION

The judgment is reversed. The matter is remanded for resentencing with directions to (1) strike the one-year enhancement imposed pursuant to former section 667.5, subdivision (b); (2) redetermine, consistent with this opinion and the constitutional prohibition against ex post facto laws, each of the penalty assessments based on the $70 fine imposed under section 264; and (3) ensure that an amended abstract of judgment, which accurately reflects defendant's sentence and the amount and statutory basis for each individual fine, fee, and penalty assessment imposed, is prepared, filed, and forwarded to the Department of Corrections and Rehabilitation.

/s/_________

ELIA, ACTING P. J. WE CONCUR: /s/_________
GROVER, J. /s/_________
DANNER, J.