Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA100182, Paul A. Bacigalupo, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Pamela C. Hamanaka, Assistant Attorneys General, Susan Sullivan Pithey, Joseph P. Lee and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Floyd Dwaine Scott was convicted of four sex offenses and one count of false imprisonment by violence. Allegations concerning 12 prior strikes, a prior prison term, and a prior serious felony were found true, and Scott was sentenced to state prison for a term of 275 years to life. He appeals, claiming he was deprived of his right to confront a witness and contending admission of prior sex offenses pursuant to Evidence Code section 1108 was improper and prejudicial, depriving him of a fair trial and violating his rights of due process and equal protection. We affirm.
FACTS
In 1986, Scott lured Wilma I. to his house by promising to use cocaine with her. Once there, he forced her at knifepoint to undress, tied her up and raped her. He then threatened to kill her unless she telephoned her 13-year-old daughter, S.B., and persuaded her to come to his home. She did so, and when S. got there, Scott forced her at knifepoint to undress, and raped her and Wilma I., in turn, through the night. He pleaded no contest to several criminal charges and was given a 20-year prison sentence. He was paroled in 1998.
Four months after he was released from prison, Scott lured Virginia V. to his house by promising to pay her $25 for sex. At his house, they drank alcohol, smoked cocaine, and had sexual relations. When Scott left to obtain more drugs, Virginia, fully clothed, dozed off on his bed. When she awoke, she found Scott had removed her clothing, tied her hands together, and taped her legs to the foot of the bed. When she asked what he was doing, Scott said, “You’re fixing to get raped.” Scott taped her mouth and inserted his finger into her vagina three times, then removed the tape from her mouth and forced her to orally copulate him. When she tried to get him to stop, he grabbed her hair and pushed her down. When he was finished, he re-taped her mouth, then orally copulated her. He then taped her legs together and left the house. Virginia was ultimately able to call 911.
Scott was charged with two counts of forcible oral copulation, one count of sexual penetration with a foreign object, one count of assault with intent to commit rape, one count of false imprisonment by violence, and one count of assault upon a police officer. There were multiple allegations concerning 12 prior sex strikes, a prior prison term, and a prior serious felony. Scott pleaded not guilty.
Virginia V. testified at the preliminary hearing, where she was subject to cross-examination. The next night, she died of a drug overdose.
At trial, the People presented evidence of the facts summarized above. Scott’s defense was that Virginia V. agreed to have “bondage sex” with him for $25. However, they “never... had any kind of sexual activity” because she was sick and blacked out two or three times. He argued Virginia V. was going through withdrawal during the incident, suffered memory blanks, and did not remember their arrangement.
Over Scott’s objection, a transcript of Virginia’s preliminary hearing testimony was read to the jurors. Wilma I. and S.B. testified in person about the 1986 rapes, also over Scott’s objection. Scott was convicted and sentenced to an aggregate prison term of 225 years to life. After we affirmed his conviction, his federal habeas corpus petition was granted. He was retried.
At Scott’s second trial, the transcript of Virginia’s V.’s preliminary hearing testimony was again read to the jury. Scott was permitted to admit lay opinion testimony that she had appeared to be under the influence of drugs during her testimony. Wilma I. and S.B. again testified about the 1986 rapes. Their testimony was particularly affecting:
Q: [S.], what happened once he let you in? What’s the next thing you remember? A: As soon as I went in, he closed the door real fast and locked it.
Q: And then what happened?
A: He pulled a knife and told me to take off my clothes.
Q: And did you do that right away?
A: I was crying. I was asking him why.
Q: Did he say anything to you when you asked why?
A: He just said, “Take your clothes off,” and I was asking him, “Please don’t” and “Where’s my mom?”
Q: Did he say anything when you said that?
A: I can’t remember what he said.
Q: And then what happened, [S.]?
A: He took me in the bedroom where my mom was.
Q: And did you see your mom?
A: Yes.
Q: And what was the condition of your mom? What did she look like when you saw her?
A: She was on the floor tied up naked and her mouth was gagged.
Q: And then what happened, [S.]? What do you remember?
A: I think he tried raping me in front of her, but she wouldn’t stop crying, and he told her to shut up, and she wouldn’t -- she wouldn’t stop crying, so he took me into a different room.
Q: And then what happened, [S.]?
A: He raped me there.
Q: Did he put his penis in your body?
A: Yes.
Q: What part of your body?
A: My vagina.
Q: Physically, how did that feel to you?
A: It hurted.
Q: Had you ever had sex before?
A: No.
Q: Did you say anything when it was hurting? Did you say anything to him?
A: I told him that it hurt.
Q: And what –
A: He just kept going.
Q: He just kept going when you told him it hurt?
A: Yes.
Q: And then what happened, [S.]?
A: I don’t remember everything.
Q: Did he -- at any point did you see him use some sort of instrument?
A: Yes. He had used a vibrator.
Q: And what did he do with the vibrator, if anything?
A: He inserted it inside of me.
Q: In what part of your body?
A: My vagina.
Q: Did he put anything of his – [Witness Crying.]
[¶]... [¶]
Q: Did he put anything -- any part of his body in your body -- inside your mouth?
A: Yes, his penis.
Q: And then what happened, [S.]? At some point did you see your mom again? A: Yes. He brought her back into the room where I was at.
Q: And what were you doing in the room -- were you laying down or --
A: I was laying down.
Q: Where?
A: On the mattress.
Q: And then what happens once he brought your mom back?
A: He raped her.
Q: In front of you?
A: I turned my back.
Q: Why did you do that?
A: Because I didn’t want to see.
Q: Could you hear your mom?
A: Yeah.
Q: And then what happened, [S.]?
A: While he was raping her, he was touching me at the same time.
Q: And did he let you go that night?
A: No.
Q: What happened?
A: He wouldn’t let us go until the next -- sometime in the morning.
Wilma I. testified that when S. B. came into Scott’s house she “screamed and started calling me, ‘Mommy, Mommy, Mommy.’” “He brought her in the room and threw her up beside me.”
Q: And you were still gagged and tied up at that point?
A: Yes.
Q: And then what happened, Ms. [I.]? What do you remember happened next?
A: He -- he still raped me while feeling on her. And then --
Q: While he was touching your daughter, he raped you?
A: Yes.
Q: And you could see that he was touching her?
A: Yes.
Q: And then what happened, Ms. [I.]?
A: And then he started to proceed to rape her.
Q: [S.]?
A: Yes, in front of me.
Q: And what happened after that, Ms. [I.]?
A: We were taken to another room where he was telling us that he would -- you know, if we didn’t do this or do what he told us to, he would kill us....
[¶]... [¶]
Q: And around what time was this when [S.] was over there and these things were happening? Around what time, do you know?
A: I don’t remember, because it went on all night.
Q: What do you mean, “It went on all night?”
A: He went back and forth between me and her all night.
In ruling on the People’s pretrial motion to admit Wilma’s and S.’s testimony regarding the 1986 rapes, the court found the uncharged sexual conduct would not consume an undue portion of the trial time, the uncharged sexual conduct was not remote in time, and “there are remarkable similarities of the prior acts to the acts charged. The victims in the instances were vulnerable. [Scott] took advantage of the victims. [Scott] engaged in oral copulation more than once. He bound and taped the victims. The court finds the prejudice presented by this evidence is the type inherent in all propensity evidence, and it is, therefore, not rendered inadmissible. In totality, the probative value outweighs the prejudice. Furthermore, the court will utilize [Judicial Council of California Criminal Jury Instructions (CALCRIM) instruction No.] 1191, which instructs the jury that the prior act alone is not sufficient to prove guilt beyond a reasonable doubt.”
Regarding the 1986 rapes, the court instructed the jury pursuant to CALCRIM No. 1191 that: “The People presented that the defendant committed the crimes of rape, forcible oral copulation, and sexual penetration that were not charged in this case.... [¶]... [¶] [Y]ou may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit assault with intent to rape, oral copulation, and sexual penetration as charged here. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of assault with intent to rape, oral copulation, and sexual penetration. The people must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose of disposition.”
The jury convicted Scott as charged and found the allegations true. He was sentenced to state prison for a term of 275 years to life.
DISCUSSION
A. Preliminary Hearing Testimony Was Admissible
Scott argues the trial court should not have admitted Virginia’s testimony because he did not have a constitutionally meaningful opportunity to cross-examine her. We disagree.
In People v. Seijas (2005) 36 Cal.4th 291 our Supreme Court held that preliminary hearing testimony of an unavailable witness is admissible at trial so long as the defendant had a prior opportunity to cross-examine. (Id. at p. 303.) Scott does not contend he lacked opportunity to cross-examine Virginia and he recognizes this court is bound by Seijas. In a thorough and scholarly discussion, he contends only that Seijas was incorrectly decided. (Though Scott complains of two instances in the preliminary hearing where the court cut off his cross-examination on impeachment matters, he adduces these instances only to illustrate the inadequacy of a California preliminary hearing per se, not to charge error during the hearing.)
As Scott acknowledges, this court is bound by Seijas. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Pursuant to Seijas, admission of Virginia V.’s testimony did not violate Scott’s right to confront and cross-examine the witnesses against him.
B. Evidence of the Rapes of Wilma I. and S.B.
Scott contends the trial court abused its discretion under Evidence Code sections 1108 and 352 in admitting the “extraordinarily inflammatory” evidence of the 1986 rapes. He argues the current offenses were “far less egregious (rape of a prostitute where the defense was consent) than the prior offenses, and the trial court should have precluded allocution of the inflammatory particulars. The contention lacks merit.
Undesignated statutory references will be to the Evidence Code.
“As a general rule, evidence that is otherwise admissible may be introduced to prove a person’s character or character trait. (§ 1100.) But... such evidence is inadmissible when offered by the opposing party to prove the defendant’s conduct on a specified occasion (§ 1101, subd. (a)), unless it involves commission of a crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent, plan, identity) other than a disposition to commit such an act (§ 1101, subd. (b)).” (People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) However, section 1108 permits propensity evidence in sex offense prosecutions if not otherwise barred under section 352. Evidence is inadmissible pursuant to section 352 where “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.” (§ 352.)
Section 1101 states: “(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.”
As relevant, section 1108 provides: “(a) 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. [¶].... [¶] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code.”
In Falsetta, the court explained: “Available legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is per se unduly prejudicial to the defense. [Citation.]” (Falsetta, supra, 21 Cal.4th at p. 911.) Specifically, the Legislature determined that such evidence was particularly probative in sex crime cases because such crimes normally are committed in secret, without corroborating witnesses or evidence, and trials in such cases often are pure credibility contests between alleged victims and defendants, involving determinations of the defendant’s disposition to commit such crimes and whether the victim has falsely or mistakenly accused the defendant. (Id. at pp. 911-912.) “‘In 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.]” (People v. Britt (2002) 104 Cal.App.4th 500, 505-506.)
Falsetta explained how the court should exercise its section 352 discretion: “By reason of section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]” (Falsetta, supra, 21 Cal.4th at pp. 916-917.) If such evidence is admitted, instructing the jury pursuant to CALCRIM No. 1191 helps assure that the jury considers the evidence only for proper purposes. (Id. at pp. 922-924; People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016.) “[W]hen ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under... section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213.)
We review the admission of evidence under sections 352 and 1108 for an abuse of discretion. (Falsetta, supra, 21 Cal.4th at pp. 916-920; People v. Waples (2000) 79 Cal.App.4th 1389, 1395-1396 [§ 1108]; People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [§ 352].) When, as here, the court below has engaged in the analysis required by section 352, its ruling cannot now be reversed on appeal unless the court exercised discretion “‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Applying these principles to the facts before us, evidence of the 1986 rapes was admissible pursuant to section 1108 to show Scott’s propensity to rape. Further, the trial court did not abuse its discretion under section 352 when it found the evidence was not substantially more prejudicial than probative.
Scott argues the prior rapes were too remote in time to be probative. The argument is without merit. Though the charged incidents occurred 12 years after the 1986 rapes, they occurred only four months after Scott was paroled, and thus the court did not abuse its discretion in finding the prior rapes were not remote in time. (See People v. Waples, supra, 79 Cal.App.4th at p. 1395; People v. Harris (1998) 60 Cal.App.4th 727, 739.)
Scott argues the trial court abused its discretion by failing to exclude inflammatory details of the 1986 rapes. Though he does not explain what details should have been excluded, we assume he refers to the facts that Wilma I. and S.B. were mother and daughter and were raped through the night in each other’s presence. The argument is meritless. In both series of assaults, Scott lured women to his home under false pretenses at night, restrained them by force and threat of violence, forcibly orally copulated them, forced them to orally copulate him, digitally and otherwise penetrated and fondled them, and raped them. That S.B. was 13 years old and Wilma I.’s daughter, and that both were raped in each others’ presence are, admittedly, distinguishing and inflammatory details. However, recitation of the details was necessary to explain how Scott induced S.B. to come to his home and to illuminate his disposition to take criminal sexual advantage of his victims’ vulnerabilities. The trial court carefully considered the alternatives and properly instructed the jury on the use of the evidence. Under sections 1108 and 352, it was not an abuse of discretion to admit it.
Scott argues section 1108 itself violates the Due Process clause of the United States Constitution and that Falsetta’s holding to the contrary (21 Cal.4th at pp. 907-908, 922) was incorrect. However, as noted above, we are bound to follow our Supreme Court’s precedent.
Finally, Scott argues section 1108 violates the Equal Protection clause. The argument is without merit. (People v. Fitch (1997) 55 Cal.App.4th 172, 184-185 [rejecting the defendant’s equal protection challenge to section 1108]; Falsetta, supra, 21 Cal.4th at p. 919 [approving People v. Fitch].)
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., JOHNSON, J.